THE LAW SCHOOL

THE FREEDOM OF THE CHURCH

Richard Garnett Lilly Endowment Associate Professor of Law

Notre Dame Law School Legal Studies Research Paper No. 06-12

This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=916336.

A complete list of Research Papers in this Series can be found at: http://www.nd.edu/~ndlaw/faculty/ssrn.html THE FREEDOM OF THE CHURCH

Richard W. Garnett*

I.

Not many today know much about an 11th century monk named Hildebrand, who eventually reigned as Gregory VII? However, the three days in late January 1077 when the excommunicated German king, Henry IV, stood barefoot in the snow doing penance outside the castle at Canossa of Countess Matilda of Tuscany could be as important to the development of western constitutionalism as the later events at Runnymede, or Philadelphia.1 Hildebrand not only orchestrated the first great “propaganda” campaign in history in support of his struggle with secular powers for papal control over the Church;2 he led a “revolution” that, as the great legal scholar Harold Berman reports, worked nothing less than a “total transformation” of law, state, and society.3 And, the battle cry for this papal revolution – an idea that would serve as the catalyst for “the first major turning point in European history”4 and as the foundation for nearly a millennium of political theory – was libertas ecclesiae, the “freedom of the Church.” Drawing on the work of Fr. John Courtney Murray, this Article explores the possibility that this idea – or something like it – remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government.

For Hildebrand and his allies, the “freedom of the Church” was the “freedom of the clergy, under the pope, from emperor, kings, and feudal lords.”5 It was the “assertion of papal primacy over the entire Western church and of the independence of the Church from secular control.”6 This revolutionary slogan was, in Murray’s words, a “pregnant phrase,” one that refers both to the “freedom of the Church as a spiritual authority” to

* Lilly Endowment Associate Professor of Law, University of Notre Dame. I am grateful to Bob Rodes, Mark Sargent, Angela Carmella, Rob Vischer, Ed Hartnett, Greg Sisk, Nicole Stelle Garnett, Carl Esbeck, Steve Smith, Mark Tushnet, and all of the participants in the Constitutional Theory Colloquium at the Georgetown University Law Center and in the workshop series at Seton Hall University School of Law for their suggestions and criticisms. 1 See generally, e.g., BRIAN TIERNEY, THE CRISIS OF CHURCH AND STATE: 1050-1300 (1988); HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION (1983); Robert Louis Wilken, Gregory VII and the Politics of the Spirit, in THE SECOND ONE THOUSAND YEARS: TEN PEOPLE WHO DEFINED A MILLENNIUM (RICHARD J. NEUHAUS, ed., 2001). 2 BERMAN, supra note 1, at 94 (quoting,Introduction to G. TELLENBACH, CHURCH, STATE, AND CHRISTIAN SOCIETY AT THE TIME OF THE INVESTITURE CONTEST xiv-xv (R.F. Bennett trans., 1940)). 3 BERMAN, supra note 1, at 23. See also JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT: ESSENTIAL RIGHTS AND LIBERTIES 11-14 (2000) (discussing the “papal revolution”). 4 BERMAN, supra note 1, at 87. 5 BERMAN, supra note 1, at 94. 6 BERMAN, supra note 1, at 50. See also WITTE, supra note 3, at 11-12 (noting Pope Gregory VII’s claim that “[o]nly the pope . . . had authority to ordain, discipline, depose, and reinstate bishops, to convoke and control church councils, and to establish and administer abbeys and bishroprics.”). 2 Freedom of the Church [10-Jul-06 carry out its “divine commission . . . to teach, to rule, and to sanctify” and to the freedom of the Christian people “to live within her fold an integral supernatural life,” a life with an “inherent suprapolitical dignity” that transcends the goals and powers of the state and its temporal ends.7 What was at stake at Canossa, then – as at the Cathedral in Canterbury a century later, when the “meddlesome priest” St. Thomas Becket was murdered by another ambitious King Henry8 – was the “principle that royal jurisdiction was not unlimited . . . and that it was not for the secular authority alone to decide where its boundaries should be fixed.”9 In George Weigel’s words:

Thanks to the Freedom of the Church, and to the resolution of the in favor of the Church, the state . . . would not be all in all. The state would not occupy every inch of social space. Indeed, the state had to acknowledge that there were some things it couldn’t do because it was simply incompetent to do them – and that acknowledgment of limited competence created the social and cultural conditions for the possibility of what a later generation of constitutions and democrats called the limited state. The Western ideal – a limited state in a free society – was made possible in no small part by the investiture crisis.”10

What resulted from this “disengagement of the two spheres of sacred and profane” was not only a change in the “self-understanding”11 of both Church and state but also, as Peter Brown wrote, a “release of energy and creativity analogous to a process of nuclear fission.”12

And yet, no Justice of the United States Supreme Court has ever mentioned – at least, not according to Westlaw – Hildebrand, Gregory VII, or Canossa in any published opinion. Nevertheless, and following Berman, I suggest that engagement with the 11th century Investiture Crisis, the “Papal Revolution,” and the libertas ecclesiae principle could be helpful, if not essential, to an understanding of constitutionalism generally and, more specifically, of the religious freedom protected

7 JOHN COURTNEY MURRAY, WE HOLD THESE TRUTHS: CATHOLIC REFLECTIONS ON THE AMERICAN PROPOSITION 201, 203-04 (1988). 8 In the Academy Award-winning 1964 film, BECKET, England’s King Henry II – played by Peter O’Toole – says of Thomas Becket, the Archbishop of Canterbury – played by Richard Burton – “will no one rid me of this meddlesome priest?” Id. 9 BERMAN, supra note 1, at 269. 10 GEORGE WEIGEL, THE CUBE AND THE CATHEDRAL: EUROPE, AMERICA, AND POLITICS WITHOUT GOD 101 (2005). 11 Wilken, supra note 1, at 10. The author notes: By desacralizing the authority of the king, Gregory disengaged the spiritual world from political control (at least in theory) and set in motion forces that would alter not only the self- understanding of the Church but also of the state. . . . Deprived of its spiritual authority, the state was forced to conceive of itself anew as a corporate body independent of the Church.” Id. 12 Peter Brown, Society and the Supernatural: A Medieval Change, 104 DAEDALUS 133, 134 (1975). 10-Jul-06] Freedom of the Church 3 by the First Amendment to our Constitution.

The American Jesuit and theologian, Fr. John Courtney Murray – who wrote widely and influentially about religious freedom and democracy – appreciated this connection. Today, Murray probably is best known for his work in grounding the freedom of religious conscience from government coercion on the dignity of the human person, an effort that is widely seen as having been endorsed by the Fathers at the in their 1965 Declaration on Religious Liberty, Dignitatis humanae.13 And, he is invoked often in discussions and debates regarding the advisability or justifiability of morals legislation in conditions of pluralism and about the responsibilities of, and constraints upon, Catholics in public and political life.14 However, his emphasis on the significance for limited government and religious freedom of the libertas ecclesiae principle seems to have gone largely overlooked.

Murray regarded this principle as a “Great Idea,” whose “entrance into history marked the beginning of a new civilizational era.”15 And he proposed that this idea, properly understood, should be treated not only as an aspect, dimension, or implication of religious freedom, but as essential and foundational to it. Put differently, the libertas ecclesiae principle for Murray was not merely a spin-off of his important argument about human dignity as the basis for immunity from coercion in matters of religious conscience; it is the linchpin of that argument.16 After all, Murray insisted, we have long understood that we are not really free if “[our] basic human things are not sacredly immune from profanation by the power of the state[.]”17 The challenge, in his view,

13 See, e.g., Dignitatis humanae ¶ 2 (“The right to religious freedom has its foundation in the very dignity of the human person as it is known through the revealed word of God and by reason itself. . . . [T]he right to religious freedom has its foundation not in the subjective disposition of the person but in his very nature.”). 14 See, e.g., Mario M. Cuomo, Persuade or Coerce? A Response to Kenneth Woodward, COMMONWEAL (Sept. 24, 2004). Gov. Cuomo speaker stated: My speech echoed the teaching of great American theologians like John Courtney Murray who told us it is a ‘foolish position to say all sins ought to be made crimes.’ Murray’s position was consistent with Aquinas’s observation that although civil law is concerned with leading everyone to virtue, it does so prudentially-gradually and not suddenly. Id. See also, e.g., David R. Obey, My Conscience, My Vote, AMERICA (Aug. 16, 2004). Congressman Obey wrote: I remain a John Courtney Murray kind of Catholic, while Archbishop Burke is not. Murray was the key American theologian who advised the American Catholic bishops during the deliberations of the historic Second Vatican Council convened by Pope John XXIII. Archbishop Burke and I differ only occasionally on what is moral and what is not. But we differ significantly about what requirements the law can be expected to impose in a democratic society on those who do not share our religious beliefs. Id. 15 MURRAY, supra note 7, at 202. 16 Cf., Dignitatis humanae, supra note 13, at ¶ 13 (“[The] freedom of the Church is the fundamental principle in what concerns the relations between the Church and governments and the whole civil order.”). 17 MURRAY, supra note 7, at 204. 4 Freedom of the Church [10-Jul-06 has always been to find the limiting principle that would “check the encroachments of civil power and preserve these immunities”; and, he thought, “[w]estern civilization first found this norm in the pregnant principle, the freedom of the Church.”18 This principle supplied, in other words, what Murray called the “new Christian theorem,” namely, that the Church “stood between the body politic and the public power, not only limiting the reach of the power over the people, but also mobilizing the moral consensus of the people and bringing it to bear upon the power.”19 For Murray, it was the freedom of the Church that furnished a “social armature to the sacred order,” within which the human person would be “secure in all the freedoms that his sacredness demands.”20

Now, it is tempting to assume or expect that such a “great idea” or “revolutionary” principle of limited government in the service of human freedom must be deeply rooted and comfortably well established in our Constitution’s text, history, structure, and doctrine. And, in Murray’s view, it was: he contended that the Religion Clause of our First Amendment “codified” the freedom of the Church;21 he argued for a continuity between the medieval idea and what he called the “American consensus”;22 and he assured his readers that our Constitution guarantees religious freedom not only to the individual believer, “but to the Church as organized society with its own law and jurisdiction. . . . Within society, as distinct from the state, there is room for the independent exercise of an authority which is not that of the state.”23 I am not so sure, though. That is, it is not clear to me that there actually is, in American constitutional law, a commitment to – or even room for – the libertas ecclesiae principle, richly understood. This is not to say, of course, that the First Amendment does not provide meaningful protections to religious freedom. And, certainly, there are various constitutional doctrines and lines of cases that, in effect, guard the Church’s – or, more accurately, churches’ – ability and right to control their internal structure and operations, to propose their own messages, to administer their own sacraments, and to conduct their own liturgies. The rule that secular courts may not, in the course of resolving disputes between litigants or answering legal questions, interpret, apply, or enforce religious doctrines is one such rule;24 another is the Court’s

18 Id. at 204. 19 Id. at 205. 20 Id. at 205. 21 Michael J. Baxter, John Courtney Murray, in THE BLACKWELL COMPANION TO POLITICAL THEOLOGY (Peter Scott & William T. Cavanaugh eds., 2003). See also id. at 159 (observing that, for Murray, the “freedom of the Church” was one of the three “derivative transtemporal principles” – along with “the separation of the church from society” and the “dignity of the human person” – that he used to “historicize” the thesis that the political arrangements in the United States were fundamentally good). 22 MURRAY, supra note 7, at 30-39. 23 MURRAY, supra note 7, at 70-71. 24 See generally, e.g., Richard W. Garnett, Assimilation, Toleration, and the State’s Interest in the Development of Religious Doctrine, 51 UCLA L. REV. 1645, 1652-59 (2004); Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church et al., 393 U.S. 440, 449 10-Jul-06] Freedom of the Church 5 holding that governments may, consistent with the Constitution’s no-establishment rule, accommodate the free exercise of religion by exempting churches’ employment decisions from the application of anti-discrimination laws.25 It is well established that the religious freedom protected by the First Amendment includes recognition and respect for “church autonomy.”26 And so on. Nevertheless, the suggestion here is that appearances are deceiving, and that these and other constitutional values and doctrines do not, in fact, evidence a robust, underlying commitment in our law to the libertas ecclesiae principle. Instead, it could well be that we are living off the capital of this idea – that is, we enjoy, embrace, and depend upon its freedom-enabling effects – without a real appreciation for or even a memory of what it is, implies, and presumes.27 That which furnishes for us today the “social armature to the social order,” the principle or idea that does the work of affirming and ensuring that the state is not “all in all,” is not the freedom of the Church, but is instead the freedom of the individual conscience.28 In our religious-freedom doctrines and conversations, it is more likely that the independence and autonomy of churches, or of religious institutions and associations generally, are framed as deriving from, or existing in the service of, the free-exercise or conscience rights of individual persons than as providing the basis or foundation for those rights. A relatively recent and entirely unremarked immigration case provides an illustration: In Li v. Gonzales, the United States Court of Appeals for the Fifth Circuit affirmed a decision of the Board of Immigration Appeals, which had ruled that a Chinese Christian “who was prosecuted for holding an illegal religious gathering and conducting an underground church” was not thereby “persecuted on account of his

(1969) (noting that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable because when “civil courts undertake to resolve [doctrinal] controversies . . . the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.”). 25 See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, et al. v. Amos, 483 U.S. 327, 334 (1987) (“This Court has long recognized that the government may . . . accommodate religious practices and that it may do so without violating the Establishment Clause.”) (quoting Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144-45 (1987)). 26 See generally, e.g., Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church-Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1373 (1981) (“Quite apart from whether a regulation requires a church or an individual believer to violate religious doctrine or felt moral duty, churches have a constitutionally protected interest in managing their own institutions free of government interference.”). 27 Cf. MURRAY, supra note 7, at 215. Murray noted: On the one hand, modernity has denied (or ignored, or forgotten, or neglected) the Christian revelation that man is a sacredness, and that his primatial res sacra, his freedom, is sought and found ultimately within the freedom of the Church. On the other hand, modernity has pretended to lay claim to the effects of this doctrine[.]” Id. 28 MURRAY, supra note 7, at 206 (“The freedom of the individual conscience, constitutionally guaranteed, would supply the armature of immunity to the sacred order, which now became, by modern definition, precisely the order of the private conscience.”). 6 Freedom of the Church [10-Jul-06 religious beliefs” and was therefore subject to removal from the United States.29 The Fifth Circuit reported and, apparently, credited Mr. Li’s account of how he had been harassed, arrested, detained, and beaten, and of how he had lost his job and been forced by the police to clean public toilets without pay, because of his involvement in an “illegal” house church. Mr. Li conceded that he had violated Chinese laws requiring the registration of churches, but insisted that he had refused to register because he believed the government would use the church “for its own propaganda purposes.”30 (As the court noted, it is the policy of the Chinese government to allow religious groups and churches only if they “advocate the communist doctrine of socialism.”31) The Board of Immigration Appeals had concluded and the Fifth Circuit agreed that, because China permits – or, purports to permit – “Protestant groups to practice their religion,” Mr. Li had not been persecuted on account of his religion, but on account of his illegal religious activities – that is, for worshipping in a church community that did not register with the government and did not agree to function as a propaganda arm for the government.32 The Fifth Circuit concluded that “[t]he record establishes that the Chinese government does permit millions of its citizens to practice Christianity without punishment as long as they are members of registered groups.”33 Now, the point here is not so much that there is anything particularly remarkable about the Li case, but is instead to note the separation between the freedom to “practice [one’s] religion, on the one hand, and the freedom of churches – or, the “freedom of the Church” – on the other. And, it is to suggest that an understanding of religious freedom that purports to respect the rights of belief and conscience while authorizing and requiring government supervision of churches’ expression, rituals, and doctrine is probably a hollow and unstable one. A better understanding is one that appreciates both that authentic does not exist when its manifestation in and expression through the life of non-state institutions and communities is prohibited, and also and more generally that independence for such institutions and communities is both a feature of and a necessary condition for political freedom.

II. A comprehensive or even serviceable account of the Investiture Crisis, the Papal Revolution, and their aftermath is well beyond the scope of this paper.34 For present

29 420 F. 3d 500, 503 (5th Cir. 2005), vacated, 429 F.3d 1153 (5th Cir. 2005) (dismissing Li’s petition for review and petition for rehearing as moot). 30 Id. at 505. 31 Id. 32 Id. at 510. 33 Id. at 510, 511. 34 See generally, e.g., BERMAN, supra note 1; TIERNEY, supra note 1. See also Ira C. Lupu & Robert Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 VILL. L. REV. 37, 37- 38, n. 4 (2002). 10-Jul-06] Freedom of the Church 7 purposes, a quick sketch should be enough. It was, Robert Wilken has reminded us, a “capital fact of ecclesiastical life in the early Middle Ages . . . that the affairs of the church were managed by kings and princes.”35 It is important to note, though, that this “interference in church governance was not . . . viewed as a matter of political power muscling in on the authority of the Church; it was rather the king’s duty.”36 (Indeed, when Henry IV resisted Pope Gregory VII’s claims to papal supremacy, he did so not by invoking something like the “separation of church and state” or laïcité, but by insisting that he was king “through the holy ordination of God” and that Hildebrand was “at present not pope but false monk.”37) Building on but moving well beyond a century of reform efforts to “purge the church of feudal and local influences and of the corruption that inevitably accompanied them,”38 Pope Gregory VII issued in 1075 a document called (“The Dictates of the Pope”), a ringing and harsh condemnation of secular control over the selection and investiture of bishops. Henry (and his bishops) were unmoved – at least, at first – by the Pope’s claims and legal arguments: In January of 1076, Henry wrote, “I, Henry, king by the grace of God, do say unto you, together with all of our bishops: Go down, go down, to be damned throughout the ages.”39 Of course, the dramatic confrontation at Canossa that followed, after Henry’s excommunication, was hardly the end of the matter:40 the Wars of Investiture soon broke out, and raged for several decades; Henry would eventually appoint a pope of his own; and Gregory died in exile, quoting the Psalmist and saying “I have loved justice, and hated iniquity; for that reason I die in exile.”41 The of Worms, in 1122, calmed things for a time, and represented a kind of compromise; it was a compromise, though, out of which emerged “Western political science – and especially the first modern Western theories of the state and secular law[.]”42 As George Weigel put it: Had the emperors succeeded in making the Church an administrative and spiritual subdivision of the empire, more would have been lost than the libertas ecclesiae, the capacity of the Church to order its own internal life. The possibility of institutional pluralism in the West might have been lost or, at the

35 Wilken, supra note 1, at 6. See also BERMAN, supra note 1, at 88 (“Prior to the late eleventh century, the clergy of Western Christendom . . . were, as a rule, much more under the authority of emperors, kings, and leading feudal lords than of .”). 36 Wilken, supra note 1, at 6. 37 BERMAN, supra note 1, at 96. See also id. at 88 (noting that the “kings and emperors of western Europe in the sixth to eleventh centuries” were “’deputies of Christ’, sacral figures, who were considered to be the religious leaders of their people”). 38 BERMAN, supra note 1, at 89. 39 Id. at 96. 40 Id. at 105 (observing that the “principal aim of the revolution” – that is, the “freedom of the church” – “was not something that could be achieved overnight – indeed, in its deepest significance, it was not something that could be achieved ever.”). 41 Wilken, supra note 1, at 9. 42 BERMAN, supra note 1, at 111. 8 Freedom of the Church [10-Jul-06

very least, delayed.43 Now, it takes nothing away from the “revolutionary” character of Gregory VII’s claims and achievements to recall that, of course, the observation at the heart of the libertas ecclesiae principle – i.e., that there are two, not one – preceded by him by many centuries. In the year 494, Pope Gelasius had written to the Byzantine Emperor Anastasius I, insisting, “[t]wo there are, august Emperor, by which this world is ruled on title of original and sovereign right – the consecrated authority of the priesthood and the royal power.”44 This Gelasian text has been called the “Magna Carta of the whole ‘freedom of the Church’ in medieval times”;45 it was, in Murray’s words, “the charter of a new freedom, such as the world had never known.”46 Nor is the principle’s importance diminished by the fact that, just under 100 years after the Dictatus Papae, Henry II in England reclaimed royal supremacy over the church and murdered Archbishop Thomas Becket for his opposition,47 or by the obvious challenges posed to the principle and the Church’s claims by the Protestant Reformation, the Peace of Augsburg, the French Revolution, and 19th century anti-clericalism. There is, to be clear, a great deal more to the story. But, for now, put that story aside. Murray claimed that – the principle’s revolutionary character and foundational importance notwithstanding – “the political experiment of modernity has essentially consisted in an effort to find and install in the world a secular substitute” or “surrogate” for it.48 That is, as he saw it, the “royal absolutism” associated with the “rise of the national monarchies” had broken down the freedom-enabling societal structure, in which the freedom of the Church served as the “limiting principle of the power of government”; and, “the basic goal of modern politics” has been to re-establish, but on a very different basis, the “equilibrium” that the libertas ecclesiae principle had supplied.49 Is such a re-establishment possible, though?

43 WEIGEL, supra note 10, at 100. 44 The text of this letter is available through the Internet Medieval Source Book, at: http://www.fordham.edu/halsall/source/gelasius1.html. See also MURRAY, supra note 7, at 202 (noting the “essential political effect of Christianity was to destroy the classical view of society as a single homogenous structure” and that “[t]he new Christian view was based on a radical distinction between the order of the sacred and the order of the secular”). 45 ALOIS DEMPF, SACRUM IMPERIUM (1929) (quoted in MURRAY, supra note 7, at 202). See also, e.g., JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 6 (2d ed.2005) (describing the Gelasian “two powers” passage as “a locus classicus for many later theories of a basic separation between pope and emperor, clergy and laity, regnum and sacerdotium). 46 MURRAY, supra note 7, at 202. That said, the Gelasian claim would seem to build on St. Ambrose’s, that “[p]alaces belong to the emperor, churches to the priesthood.” BERMAN, supra note 1, at 92. 47 See BERMAN, supra note 1, at 268 (stating that the conflict between Henry II and Becket should be viewed “as part of the Papal Revolution and the formation of the Western legal tradition”). 48 MURRAY, supra note 7, at 201. 49 Id. at 204-05. 10-Jul-06] Freedom of the Church 9

III. Well, so what? What is the relevance today to our thinking about limited government and religious freedom of a medieval clash between pope and emperor or of the reflections on that clash of an American Jesuit priest? For now, I will only assert what I am confident could be established, namely, that Murray’s work and thought relating to these matters was and remains important, not only in its own right, but insofar as it contributed to the Second Vatican Council’s Declaration on Religious Liberty.50 That document and the work that shaped it are rightly regarded as an indispensable part of contemporary thinking about the nature, foundations, and implications of religious freedom, properly understood.51 The point is, for those who are interested in these matters, it seems clearly worth the time to uncover the role played both in Murray’s writing and in the Council’s work by the principle that provided the rallying cry for a revolution with such dramatic and far-reaching effects. Dignitatis humanae, the Council’s Declaration on Religious Freedom, was promulgated by Pope Paul |VI on December 7, 1965.52 Although the document provides nothing close to a comprehensive theory or account of what we, in the United States, think of the “church-state question” – it did not, for example, venture far into the weeds of distinguishing permissible accommodations of religion from unwarranted or unjustified state establishments53 -- it famously affirmed the right of the human person to worship in accord with his or her conscience and, at least implicitly, endorsed the notion of church-state separation. The Declaration opened by observing that “[a] sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man, and the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty.”54 And, almost immediately, it proposed that “[t]he right to religious freedom has its foundation in the very dignity of the human person[,]” not “in the subjective disposition of the person but in his very nature.”55 That is, attached to our “very nature” is the desire – and responsibility – of

50 See Baxter, supra note 21 (“[Murray] had a shaping hand in writing the final draft of Dignitatis humanae . . . which officially affirmed the right of the human person to worship in accord with his or her conscience. In so doing, it granted implicit approval to church-state separation.”). 51 See generally, e.g., JOHN T. NOONAN, THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 331-53 (1998). 52 Some published versions of the Declaration, e.g., that published by St. Paul Books & Media, include the sub-heading, “On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious.” 53 See Russell Hittinger, Dignitatis humanae, Religious Liberty, and Ecclesiastical Self-Government, 68 GEO. WASH. L. REV. 1035, 1039, 1043 (2000) (noting that the Declaration is “not a complete exercise in either the theory or the practice of church-state relations” and that it did not address the minutiae of the establishment question). 54 Dignitatis humanae ¶ 1. 55 Id. at ¶ 2. See also id. at ¶ 9 (“The declaration of this Vatican Council on the right of man to religious freedom has its foundation in the dignity of the person, whose exigencies have come to be are fully known to human reason through centuries of experience.”). 10 Freedom of the Church [10-Jul-06 persons to seek, find, and adhere to the truth and, at the same time, a moral immunity from external coercion in matters of religious conscience.56 This immunity, in turn, is and ought to be secured through constitutional limits on the powers of government,57 but also promoted through policies that help “create conditions favorable to the fostering of religious life.”58 What is not always noticed, or remembered, about the Declaration is that it does not stop with an affirmation of the freedom of religious conscience, understood as immunity from external coercion, rooted in human dignity. At its heart is a claim about the state, and about what Murray called the “ontological structure of society.”59 Its definition of religious freedom had, as one scholar has put it, a “public as well as personal meaning.” Only a state with limited and defined powers could acknowledge that there was a sanctum sanctorum in every conscience where state power ought not tread. Only a state with no pretensions to omnicompetence could acknowledge its incompetence in matters theological. Only a state which understood that it existed to service society could acknowledge the priority and integrity of the free associations of civil society, including religious associations.60 And, the understanding of the “state” – of its role, obligations, and limits – to which the Declaration’s claims about religious conscience point is one that, Berman might argue, depends fundamentally on the libertas ecclesiae, the freedom of the Church. The point is worth underscoring: The Declaration’s claim is not only that (though it is that) religious freedom includes both immunity from coercion in matters of “private” belief and a right to express that belief in community through worship and otherwise.61 It is not only that religious faith and experience have a communal dimension, but also that religious freedom requires and deserves a social structure, one in which the state has constitutionally limited and defined powers and, in a way, competes with other

56 Id. at ¶ 2. See also id. at ¶ 3 (“The exercise of religion, of its very nature, consists before all else in those internal, voluntary, and free acts whereby man sets the course of his life directly toward God.”); id. at ¶ 10 (“It one of the major tenets of Catholic doctrine that man’s response to God in faith must be free[.] . . . The act of faith is of its very nature a free act.”). 57 Id. at ¶ 1 (“The demand is likewise made [i.e., in addition to the demand for dignity-grounded freedom of conscience] that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations.”). 58 Id. at ¶ 5. The Declaration’s premise that respect for religious freedom and the immunity of religious conscience is consistent with government obligations affirmatively to promote the good of religion fits uneasily, of course, with present-day no-establishment doctrine. Cf. id. at ¶ 3 (“[G]overnment . . . ought indeed to take account of the religious life of the citizenry and show it favor, since the function of government is to make provision for the common welfare. However, it would clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious.”). 59 MURRAY, supra note 7, at 199. 60 George Weigel, Centre for Independent Studies Acton Lecture, The Moral Foundations of Freedom (Oct. 23, 2000) (available at: http://www.cis.org.au/Events/acton/acton00.htm ). 61 See, e.g., Dignitatis humanae ¶ 4 (“Religious communities are a requirement of the social nature both of man and of religion itself.”). 10-Jul-06] Freedom of the Church 11 associations and institutions. More particularly, it calls for recognition by the state of the freedom of the Church – for itself, and not simply as a proxy for the religious- liberty rights of individuals. True, the Declaration insists that there is a “harmony” between individuals’ “civil right not to be hindered in living their lives according to their consciences” and the “independence” from state oversight in matters of religion claimed for the church.62 But again, the freedom to be enjoyed by religious communities63 is not defended merely as a vehicle for or incident of individuals’ private religious expression. Rather, the “freedom of the Church is the fundamental principle in what concerns the relations between the Church and governments and the whole civil order.”64 Murray had marshaled similar arguments in his essay, “Are There Two or One?”, published in 1960 – several years before the Second Vatican Council’s Declaration – as Chapter Nine of We Hold These Truths. Indeed, as Michael Baxter has explained, much of Murray’s scholarship tried to “narrate the unfolding in history of the libertas ecclesiae idea and, more specifically, to connect that unfolding with the tradition of western constitutionalism” and, eventually, with the Religion Clause of the First Amendment.65 Indeed, according to Baxter, Murray’s controversial (then and now) argument for the basic compatibility of Catholicism with American democracy “rests on the claim that the United States respects the freedom of the Church[.]” Now, this “great idea” – an idea, as was noted earlier, whose “entrance into history marked the beginning of a new civilizational era”66 – performed, for Murray, a twofold function: First, the freedom of the Church served as the limiting principle of the power of government. . . . Second, [it] furnished the ultimate directive principle of government. . . . [T]he Church stood . . . between the body politic and the public power, not only limiting the reach of the power over the people, but also mobilizing the moral consensus of the people and bringing it to bear upon the power[.]67 The key point here, again, is that the libertas ecclesiae is framed as a structural feature

62 Dignitatis humanae ¶ 13. See also Hittinger, supra note 53, at 1045. 63 Dignitatis humanae ¶ 4. It notes: [R]eligious communities rightfully claim freedom in order that they may govern themselves according to their own norms, honor the Supreme Being in public worship, assist their members in the practice of the religious life, strengthen them by instruction, and promote institutions whereby they may join together for the purpose of ordering their lives in accordance with their religious principles. . . . Religious communities also have the right not to be hindered [by law] in the selection, training, appointment, and transferal of their own ministers, in communicating with religious authorities and communities abroad, in erecting buildings for religious purposes, and in the acquisition and use of suitable funds or properties. Id. 64 Id. at ¶ 13. 65 Baxter, supra note 21. 66 MURRAY, supra note 7, at 202. 67 Id. at 204-05. 12 Freedom of the Church [10-Jul-06 of social and political life – one that promotes and enhances freedom by limiting government – and also as a moral right to be enjoyed by religious communities; it is not simply an effect or implication of private, individual claims to freedom of conscience and immunity from government coercion in matters of religious belief. Now, one thing that is missing in Dignitatis humanae from Murray’s “Two or One” essay is his sober assessment of, and warnings about, what he calls the “experiment of modernity,”68 namely, the substitution of the conscience and subjective rights of the autonomous individual for the libertas ecclesiae principle as the guarantor of religious freedom and limited, constitutional government. In this experiment, “[a] great act of trust was made,” that the “free individual conscience” – the “only sovereign spiritual authority” – “would effectively mediate the moral imperatives of the transcendental order of justice.”69 In this experiment, religion is protected, and even respected, as a “private matter which concerns only the conscience and feelings of the individual”; churches, too, so long as they “accept the status of voluntary associations for limited purposes which do not impinge upon the public order.”70 Murray worried, though, that the individual conscience, lacking the protections from monist politics that the freedom of the Church had provided, was simply not “equal to the burden” of serving as the “sole authentic mediator of moral imperatives to the political order” and the “keystone of the modern experiment in freedom.”71 Foreshadowing, perhaps, Alasdair MacIntyre’s “disquieting suggestion” about the state of our language of morality,72 Murray suggested that although modernity has denied the role of the libertas ecclesiae principle in securing man’s “primatial res sacra, his freedom,” it has nonetheless “pretended to lay claim to the effects of this doctrine[.]”73

IV. As was noted earlier, Murray proposed that the First Amendment was well understood as having, in a sense, “codified” the freedom of the Church,74 and also that there is a continuity between Hildebrand’s slogan and the broad “American consensus” on the church-state question. Murray claimed, for example, that our Constitution guarantees religious freedom not only to individual believers but also “to the Church as an organized society with its own law and jurisdiction,” and that “[w]ithin American society, as distinct from the state, there is room” – constitutionally protected room –

68 Id. at 201. 69 Id. at 206. 70 Id. at 210. 71 MURRAY, supra note 7, at 213. 72 ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (1984). 73 MURRAY, supra note 7, at 215 (“Freedom is his endowment, and likewise his duty; but not on the title of the freedom of the Church.”). 74 Baxter, supra note 21. 10-Jul-06] Freedom of the Church 13

“for the independent exercise of an authority which is not that of the state.”75 Was he right? That is, can it really be said that the libertas ecclesiae principle survives, or that it ever did any real work, in Religion Clause theory and doctrine? It is not clear how much “room” there really is. That is, it is not clear that the constitutionally protected liberty that religious believers enjoy to choose – if they so choose – to express themselves and their beliefs in and through communities is the same thing, and up to the same “revolutionary” task, as what Murray, or Hildebrand, meant by the freedom of the Church. After all, it is hard to see how institutions whose freedom depends on their “accept[ing] the status of a voluntary organization that does not impinge on the public order”76 could be expected to shape and construct that order in the way that the freedom of the Church was thought, by Murray, to do. Now, certainly, there are a variety of constitutional cases, doctrines, and principles that evoke and resemble the “revolutionary” libertas ecclesiae principle. Most notably, there is the “church autonomy doctrine,” according to which – in one court’s words – “civil court review” of “internal church disputes involving matters of faith, doctrine, church governance, and polity” is prohibited.77 Or, as Professor Gerard Bradley has put it, “church autonomy” means “the issue that arises when legal principles displace religious communities’ internal rules of interpersonal relations (as opposed to prescriptions for personal spirituality).”78 So understood, Bradley insists, “church autonomy” is the “flagship issue of church and state,” the “litmus test of a regime’s commitment to genius spiritual freedom.”79 But even the “church autonomy” doctrine seems as much a collection of themes, or a grab-bag of discrete holdings in particular cases – a mood, even – as a clear rule, prohibition, or principle: The Court told us, in its battered-but-still-standing Lemon decision, that the First Amendment does not permit state action that creates or requires “excessive entanglement” between the government and religious institutions, practices, teachings, and decisions.80 It commands that the “secular and religious authorities . . . not interfere with each other’s respective spheres of choice and influence.”81 In a line

75 MURRAY, supra note 7, at 70-71. 76 Id. at 210. 77 Bryce v. Episcopal Church in the of Colorado, 289 F.3d 648, 655 (10th Cir. 2002) (citing Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116-17 (1952)). See also, e.g., Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. REV. 1385, 1589 (noting that “the doctrine of church autonomy” is a “recognition” that “the civil courts have no subject matter jurisdiction over the internal affairs of religious organizations”). 78 Gerard V. Bradley, Forum Juridicum: Church Autonomy in the Constitutional Order, 49 LA. L. REV. 1057, 1061 (1987). 79 Id. 80 See Lemon v. Kurtzman, 403 U.S. 602, 613-14 (1971). 81 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-12, at 1226 (2d ed. 1988); see also EUGENE VOLOKH, THE FIRST AMENDMENT: PROBLEMS, CASES, AND POLICY ARGUMENTS 916-21 (2001) (discussing rule that “[t]he government may not delegate certain kinds of government power to religious institutions”). 14 Freedom of the Church [10-Jul-06 of cases – including the Kedroff, Hull Church, and Milivojevich decisions82 -- the Justices have refused to “undertake to resolve [religious] controversies” because “the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.”83 The Court has affirmed, time and again, the “fundamental right of churches to ‘decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,’”84 and deferred to church authorities and processes “on matters purely ecclesiastical.”85 Although the Justices have not spoken directly to the matter,86 courts continue to recognize a “ministerial exception” in Title VII employment- discrimination cases, reasoning that [t]he right to choose ministers is an important part of internal church governance and can be essential to the well-being of a church, “for perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large.”87 And, similarly, the Court has approved some exemptions from anti-discrimination or other general laws on the ground that they promote and protect the independence and free-exercise rights of religious institutions.88 Now, a number of leading scholars of religious-freedom and church-state relations law have examined and evaluated the “church autonomy” doctrine, or doctrines, in more depth and detail than is possible or necessary here.89 For present purposes, though, consider a few general observations: Notwithstanding all of the data points in the previous paragraph, it remains unclear and unsettled what exactly are the content

82 See Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952); Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). See generally, Garnett, supra note 24, at 1652-59. 83 Hull Church, 393 U.S. at 449. 84 EEOC v. Catholic Univ. of America, 83 F.3d 455, 462 (D.C. Cir. 1996) (quoting Kedroff, 344 U.S. at 116). 85 Gonzales v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929). 86 See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979); Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619 (1986). 87 Bryce, 289 F.3d at 656 (quoting Rayburn v. General Conference of Seventh Day Adventists, 772 F.2d 1168 (4th Cir. 1985)). 88 See Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987) (“This Court has long recognized that the government may . . . accommodate religious practices and that it may do so without violating the Establishment Clause.”) (quoting Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144- 45(1987)); id. at 336 (noting that, even if the exemption at issue were not required by the Free Exercise Clause, an accommodation may take into account the concerns of a religious organization that “a judge would not understand its religious tenets and sense of mission”). 89 For a diverse and provocative collection of excellent papers on the subject, see Symposium, Church Autonomy and Establishments of Religion, 2004 BYU L. REV. 1093. And, Professor Laycock’s article – now 25 years old -- on the matter remains indispensable. Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373 (1981). See also, e.g., Bradley, supra note 78; Ira C. Lupu and Robert Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 VILL. L. REV. 37 (2002). 10-Jul-06] Freedom of the Church 15 and textual home in the Constitution for the church-autonomy principle – or even, indeed, if there is such a “principle.” It does not seem unfair to suggest that the doctrine has something of an imprecise emanations-and-penumbras air about it.90 Many scholars and courts locate the church-autonomy rule in the Free Exercise Clause.91 Others have looked instead to the Establishment Clause’s proscription on “excessive entanglement.”92 Some experts appear to regard the rule as an implication from general, foundational religious-freedom principles, underlying the Religion Clauses, such as church-state “separation”93 or the “voluntary principle.”94 Professor Esbeck has explained that the autonomy of churches follows from the fact that the Establishment Clause is a “structural restraint” on government (while the Free Exercise Clause protects individuals’ rights of belief and practice).95 Something like the church- autonomy rule, if not the rule itself, might be found within the privacy protected by the Fourteenth Amendment,96 or adjacent to the freedom of expressive association.97 And, one might conclude that – at least when it comes to relations with the United States – the autonomy and independence of churches in internal and doctrinal matters simply follows from the “first principle[]” of constitutional law that ours is a national government of limited and enumerated powers:98 “’The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’ . . . This constitutionally mandated division of authority ‘was adopted by the Framers to ensure

90 See Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (“[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”). 91 See Laycock, supra note 26, at 1381-84. See also, e.g., Bryce, 289 F.3d at 654 n. 1 (“[T]he church autonomy doctrine, in cases like this one, protects a church’s Free Exercise rights.”); JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? 139 (1996). 92 See, e.g., Bollard v. Cal. Province of the Soc’y of Jesus, 211 F.3d 1331, 1332 (9th Cir. 2000) (order denying rehearing en banc) (Wardlaw, J., dissenting) (“Though the concept originated through application of the Free Exercise Clause, the Supreme Court has held that the Establishment Clause also protects church autonomy in internal religious matters.”); Lupu & Tuttle, supra note 89, at 62 (“If anything in the positive law of the Constitution confirms the distinctive character of religious institutions, the doctrine of non-entanglement is it.”). 93 See, e.g., Mark E. Chopko, Shaping the Church: Overcoming the Twin Challenges of Secularization and Scandal, 53 CATH. U. L. REV. 125, 131 (2003) (“Church autonomy forms one critical aspect of the constitutionally mandated separation between governmental and religious entities that has been expressly noted in the case law.”). 94 Thomas C. Berg, The Voluntary Principle and Church Autonomy: Then and Now, 2004 BYU L. Rev. 1593, 1606. The author noted Under either rubric, free exercise or nonentanglement, some right of exemption from the law is important to the autonomy of religious organizations . . . . And in turn, the autonomy of religious organizations is a corollary of the voluntary principle: autonomy allows religious communities to organize themselves and define their missions according to their own voluntary choices, without government interference. 95 See, e.g., Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. REV. 1385; Carl H. Esbeck, The Establishment Clause as a Structural Constraint on Governmental Power, 84 IOWA L. REV. 1, 51 (1998). 96 Cf. Roberts v. United States Jaycees, 468 U.S. 609, 617-20 (1984); Wisconsin v. Yoder, 406 U.S. 205 (1972). 97 Cf. Roberts, 468 U.S. at 622-24; Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 98 United States v. Lopez, 514 U.S. 549, 553 (1995). 16 Freedom of the Church [10-Jul-06 protection of our fundamental liberties.’”99 In light of all these doctrines, decisions, and arguments, it might seem strange, even bizarre, to wonder if there really is any room in constitutional law for a robust church- autonomy doctrine, let alone for the libertas ecclesiae principle. It is worth recalling here, though, that for much of our history, it was not widely thought that the First Amendment posed any barrier to government action aimed at weakening the perceived power and influence of the Roman precisely by targeting its internal structure and operations.100 Also, as Professor Bradley has observed, the idea of “church autonomy” sits uneasily in our law and discourse about religious freedom, because of our “longstanding blind spot . . . concerning groups of all kinds. Liberalism,” he continued, “adeptly reasons about the individual and the state, but cannot fathom groups.”101 And, there remains the fact that whatever else the Justices might have said about “internal church governance” and “excessive entanglement,” it is black-letter law that the Constitution of the United States does not require exemptions for religious or religiously motivated activities and decisions from generally applicable laws,102 even when the application of those laws might seem to burden or intrude upon the autonomy – or, the freedom – of churches.103 And, it seems hard to avoid Professor Berg’s conclusion that the decision in Smith “has significantly limited free exercise claims and thus has posed a threat to the existence of a constitutional right of autonomy for religious communities.”104 In any event, it is not obvious that a constitutional

99 Id. at 553 (internal citations omitted). 100 See, e.g., Philip Hamburger, Illiberal Liberalism: Liberal Theology, Anti-Catholicism, and Church Property, 12 J. CONTEMP. L. ISSUES 693 (2002); id. at 709 (describing a number of “nineteenth-century proposals to destroy the internal authority of the Catholic Church”); id. at 710 (discussing church- property laws proposed during the nineteenth century and noting that these laws, “by shaping and limiting the forms of holding property, . . . almost inevitably affected a church’s control over its property and thus also its internal governance or discipline”). See generally, PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002). 101 Bradley, supra note 78, at 1064. See also, e.g., Angela C. Carmella, Propter Honoris Respectum, Mary Ann Glendon on Religious Liberty: The Social Nature of the Person and the Public Nature of Religion, 73 NOTRE DAME L. REV. 1191, 195-96 (1998). 102 See Employment Div. v. Smith, 494 U.S. 872 (1990). It should be noted that many states have, in effect, overruled Smith through statutes that do call for exemptions from burdensome laws in those cases where uniform application is not justified by a compelling government interest. And the Religious Freedom Restoration Act – though no longer applicable to the states – does the same work with respect to actions taken and burdens imposed by federal law. 103 A number of courts have found that the “ministerial exception” survives the Smith decision. See Bryce, 289 F.3d at 656-57. 104 Berg, supra note 94, at 1606. That said, Professor Kathleen Brady has argued, in a provocative and important article, that, because the freedom and independence of communities is essential to the formation of individuals’ religious beliefs, the protection afforded even in Smith to those beliefs suggests a right of broad autonomy for churches and religious organizations. Kathleen A. Brady, Religious Organizations and Free Exercise: The Surprising Lessons of Smith, 2004 B.Y.U. L. REV. 1633, 1636 (“When read carefully, Smith supports a broad right of church autonomy that extends to all aspects of church affairs, the most religiously sensitive as well as the more mundane.”). Cf. Bryce, 289 F.3d at 656 (concluding that “the church autonomy doctrine remains viable after Smith” because, inter alia, the ministerial-exception and church-autonomy cases “address[] the rights of the church, not the rights of individuals.”). 10-Jul-06] Freedom of the Church 17 principle whose contours and textual bases are so unsettled and qualified does or even could serve as – in Murray’s words – the “codification”105 of Hildebrand’s revolutionary, transformational, epoch-marking rallying cry. It is not just the lack of a firm doctrinal and textual home that raises doubts about whether the church-autonomy cases really reflect or constitute a codification or incorporation of the libertas ecclesiae principle. Notice, for example, that one of the justifying premises sometimes invoked in the cases is the asserted incompetence of secular courts to resolve internal church disputes or to interpret and apply religious rules.106 Indeed, in some discussions, the immunity of churches’ internal decisions is framed as a function of their irrationality, as a result of the asserted fact that “religious truth by its nature [is] not subject to a test of validity determined by rational thought and empiric knowledge.”107 However, the fact that religious teaching and faith often involves recourse to, and reliance on, revelation – or on materials with which secular judges are unfamiliar – is not, in itself, a particularly strong reason for a rule protecting churches’ autonomy in matters of governance and structure. Judges confront new substantive areas all the time, and the issue in church-autonomy cases rarely has to do with the truth or content of revelation.108 A church-autonomy doctrine grounded ultimately, or even largely, on abstention-like notions misses the point. Distinguishing “substantive nonentanglement” from “decisional nonentanglement,” Professor Berg put the matter well: More important than whether courts avoid theological questions is whether religious organizations are substantively free to organize themselves and define

105 See supra at note 74. 106 See, e.g., Thomas, 450 U.S. at 715 (“Intrafaith differences . . . are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences.”); Milivojevich, 426 U.S. at 714 n. 8 (“Civil judges obviously do not have the competence of ecclesiastical tribunals in applying the ‘law’ that governs ecclesiastical disputes.”); Watson v. Jones, 80 U.S. 679, 729 (1872) (“It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of [church] bodies as the ablest men in each are in reference to their own.”). 107 TRIBE, supra note 81, at § 14-11, at 1232 n. 46. See also Garnett, supra note 24 at 1658-59. 108 Cf., e.g., Lupu & Tuttle, supra note 89, at 58-59. After noting that a “weaker” argument for limiting courts’ review of religious matters is their “lack of judicial expertise on matters of religion,” Professors Lupu and Tuttle write:

Courts could easily misconstrue or mistranslate religious understandings. This concern, however, does not distinguish the judicial role in intra-church disputes from the role judges might play in other, internal disputes of private associations, in which the resolution turns essentially on matters of intergenerational contract – that is, the organization’s internal understanding over time of its commitments and the mode of evolution of those commitments. The second ground for judicial disapproval to decide intrafaith controversies concerning property, structure or personnel, is more persuasive. Resolution by state agents, judges or otherwise, of intrafaith disputes on matters of theological significance transgresses the state's temporal jurisdiction. When judging such controversies, the state inevitably asserts competence in and authority over sacred matters, thus violating the core Separationist commitment to institutional differentiation.

Id. 18 Freedom of the Church [10-Jul-06

their mission free from unwarranted governmental interference. . . . We keep courts out of such questions not just for the sake of doing so, but ultimately for the sake of substantive religious autonomy: when judges make theological determinations, they may distort and unjustifiably override a church’s organization and self-understanding.109 Pope Gregory VII’s objection to Henry’s claims of power over the naming of bishops was not and could hardly have been merely that the job required a technical expertise for which the former, but not the latter, had been well prepared by virtue of his clerical training. The laws and canons of a particular church or religious community need not be more inscrutable or inaccessible to a judge than those of any other entity or voluntary association.110 But, it would seem crucial to the success of any proposed translation or incorporation of the libertas ecclesiae principle into our law that churches not be assimilated and reduced to such associations.111 When Murray observed that “in his more expansive moments, [modern man] will not object even to organized religion, provided they accept the status of voluntary associations for limited purposes which do not impinge upon the public order,” he was not celebrating.112 Even if it is true – and, I have suggested elsewhere that it is true113 – that churches, like voluntary associations, play a structural, mediating role in limited government and preserving space in civil society for the development of, and competition between, values and loyalties, this does not mean that constitutional doctrines friendly to the formation and expression of such associations really capture the content of the older “freedom of the Church” idea. Finally, if the revolutionary libertas ecclesiae principle is not reducible simply to an implication of civil judges’ lack of technical competence and familiarity with “religious” sources, it should also not be understood merely in terms of government “neutrality” or the “private” nature of religion and religious belief.114 The explanation

109 Berg, supra note 94, at 1612-13. 110 See Lupu and Tuttle, supra note 108. 111 See Richard W. Garnett, A Quiet Faith? Taxes. Politics, and the Privatization of Religion, 42 BOSTON COLLEGE L. REV. 771, 801 n. 147 (2001) (noting that it would be a “mistake to reduce the Church to a mediating institution with a message, or a ‘voluntary association with a cause’”) (quoting George Weigel, Papacy and Power, First Things, Feb. 2001, at 18). Cf. Lupu & Tuttle, supra note 89, at 51 (noting that “[t]he task of any overarching theory of the constitutional status of religious entitles is to identify and elaborate the reasons, if any, that justify treatment of religious enterprises different from secular organizations and from religious believers”). 112 MURRAY, supra note 7, at 210. Cf. Hittinger, supra note 53, at 1052 n. 111 (quoting Pope Leo XIII’s complaint that the Church’s title to freedom had been reduced to that of other associations and that the “Catholic religion is allowed a standing in civil society equal only, or inferior, to societies alien from it; no regard is paid to the laws of the Church”); id. at 1153 (“What was most important [for the Church in the modern world] was that the Church could be differentiated without reducing itself to the status of other private associations.”). 113 See Richard W. Garnett, The Story of Henry Adams’s Soul: Education and the Expression of Associations, 85 MINN. L. REV. 1841 (2001). 114 See MURRAY, supra note 7, at 210 (“[Modern man] does not object to religion, provided that religion be regarded as a private matter which concerns only the conscience and feelings of the individual.”). 10-Jul-06] Freedom of the Church 19 for the freedom of the Church, traditionally understood, is not just that government are not skilled at administering churches’ affairs, or that religion and religious institutions are and do things that government does or should not care about, because they are “private.” As Professor Hittinger has pointed out, it is one thing to say that the government lacks authority over religious matters; it is “quite another to assert that, on principled grounds, the government must remain neutral on religion as such.”115 The goal of the libertas ecclesiae principle is not government neutrality for its own sake, and it is not the domestication or privatization of religion;116 it is religious freedom, which “cannot be reduced either to [private] individual liberty or to governmental incompetence.”117 Religious freedom, which includes necessarily the freedom of the Church, is a good to be promoted, and not merely the result of, or what is left over after, government neutrality or incompetence.118

V. It was John Courtney Murray’s view, again, that the immunity of conscience from coercion in religious matters depends on, and is nourished by, the freedom of the Church. He believed, in other words, that “the protection of . . . aspects of life from the inherently expansive power of the state . . . depended historically on the freedom of the Church as an independent spiritual authority.”119 And, the then-provocative claim he advanced in We Hold These Truths was not only that Catholicism is compatible with the American consensus and Constitution, but that this compatibility is established, at least in part, by the fact that the United States “respects the freedom of the Church” and, indeed, codified it in the First Amendment.120 I suggested in the previous Part, though, that it is not clear – the Court’s “church autonomy” cases notwithstanding – that the First Amendment really does or can reasonably be interpreted to codify or incorporate the libertas ecclesiae principle as Murray understood it. And this, we might reasonably think, is something to worry about: The freedom of the Church, as a principle and as a reality, matters – and for many reasons.

115 Hittinger, supra note 53, at 1041. This latter view, Hittinger continues, implies a radical privatization of religion,” a “reduction of the moral and juridical status of the church to that of other private associations,, and a “denial that civil authority has any participation in the veridical order of truth,” Id. 116 See generally, e.g., Garnett, supra note 111. 117 See Hittinger, supra note 53, at 1046 (the neutrality toward which the freedom of the Church points is not indifference but a combination of lack of government jurisdiction over religious matters with an “obligation to promote the free exercise of religion”); id. at 1048. 118 See id., at 1048 (“Here, then, is the proposition: Government should actively promote, but not usurp, religious acts.”). 119 Francis Canavan, S.J., Religious Freedom: John Courtney Murray, S.J. and Vatican II. 120 See Baxter, supra note 21. 20 Freedom of the Church [10-Jul-06

It matters, for starters, because there is at the very least a plausible argument that it has played and does play an important, even if unnoticed, role in protecting the freedom of conscience in religious (and other) matters.121 As I noted earlier, Murray worried that the modern experiment was to substitute autonomous individuals’ individual conscience – whose designated protector would be the liberal state – for the freedom of the Church as the guarantor of the social space necessary for meaningful pluralism; that modern freedom of religion is attacking its own foundations; that, in a way, the immunity of conscience is eating itself. Relatedly, there are reasons to think that the libertas ecclesiae has mattered and does matter for the development and sustaining of constitutionally limited government.122 The freedom of the Church is also important for reasons that sound in moral anthropology, and for the role that it plays not only in securing religious freedom and pluralism under constitutionally limited government, but in facilitating the development and flourishing of persons.123 In addition, Professor Kathleen Brady has argued that religious freedom for churches and religious institutions makes it possible for them to continue proposing “national values” and “preserving new visions of social life for us all”, emphasizing that these values and visions are best, and “prophetically,” nurtured not just in private consciences but in religious communities.124 As she puts it: As a prophetic voice, religious organizations can push the larger community to reevaluate social and legal norms in light of new visions, and these new visions can transform existing national values in progressive directions unimagined by prevailing orthodoxies. Thus, protecting religious institutions from state interference is, at the same time, providing benefits for the larger community.125 And, of course, the freedom of the Church matters for the Church, not because it facilitates the comfort, political agendas, or temporal aims of churchmen, but because it makes possible the Church’s core project of evangelization, and making its proposal to the world.126

121 See, e.g., Carmella, supra note 101, at 1211-12 (noting that the “prohibition on religious establishments ensures that religious associations are free from governmental control so that religious choice is ‘both possible and meaningful.’”). 122 See, e.g., Lupu & Tuttle, supra note 89, at 84, 87 (noting that institutional “separationism” between the state and “some aspects of institutional behavior” serves as a check on totalitarianism and contending that “[f]aith makes comprehensive, ultimate claims, and our anti-totalitarian political commitments preclude the state from supporting means that involve claims upon the whole of lives in that way”). 123 See, e.g., Carmella, supra note 101, at 1191-92 (noting that Mary Ann Glendon has focused in her work the “vital role played by religious (and other) communities in the development of the person” and on the “many overlapping communities . . . that make up the rich texture of civil society” and that “create the environment for human development and sustain democracy”). 124 Kathleen A. Brady, Religious Organizations and Mandatory Collective Bargaining Under Federal and State Labor Laws: Freedom From and Freedom For, 49 VILL. L. REV. 77, 81, 167 (2004). See also id. at 157 (“For the Church, freedom from state interference is essential so that religious groups can exert a transformative power on the larger world.”). 125 Brady, supra note 124, at 81. 126 See, e.g., Dignitatis humanae ¶ 13 (“Among the things that concern the good of the Church and 10-Jul-06] Freedom of the Church 21

What’s more, the freedom of the Church would seem to matter more than the issues at the heart of most contemporary church-state disputes in law and in public life. If religious freedom, grounded on human dignity and directed toward human flourishing, is the good for which we are aiming, then advocacy and litigation efforts are probably better directed at defending the freedom of the Church than, say, insisting on snippets of civil religion on the walls of secular courthouses127 or in professions of national loyalty.128 Even if it is true – and, I am confident that it is true – that the First Amendment is best understood to permit acknowledgments of religion and public displays of religious symbols, and even though there is every reason to be pleased that the Court has, in recent years, vindicated consistently the place of religious expression in the public square, it is still worth remembering that the attention and efforts of religious believers is almost certainly better directed at shoring up the structures on which their ability to challenge and transform the world depends. Better to insist on the freedom that religious institutions and communities require in order to evangelize than on urging the state to take up the task of evangelization for itself. That the freedom of the Church matters in many ways makes it all the more a matter of concern that it is vulnerable. In part, this vulnerability is connected to the limited, and perhaps dwindling, appeal in public discourse of “church autonomy,” a development that itself is no doubt related to the link many perceive between church autonomy and sexual abuse by clergy, mismanagement by bishops, and ’ declarations of bankruptcy.129 And, it is also to be expected that, to the extent the libertas ecclesiae principle is thought to privilege institutions – and, in particular, religious institutions – the principle’s appeal will suffer as people think more and more in terms of personal spirituality than institutional affiliation, public worship, and tradition.130 Insofar as the principle represents a structural constraint on the aims and authority of government, it could also be vulnerable to the understandable impatience and frustration many direct toward limitations on the ability of government to respond to problems of every kind, or to the fact that there turned out to be not much to the limits imposed on the expansion of the regulatory state by the Rehnquist Court’s “federalism revolution.”131

indeed the welfare of society here on earth . . . this certainly is pre-eminent, namely, that the Church should enjoy that full measure of freedom which her care for the salvation of men requires.”); Hittinger, supra note 53, at 1044 (noting the claim in Dignitatis humanae that “the Church ought to be free to be about its business, which includes the obligation of the laity to sacralize culture”). 127 Cf. McCreary County v. American Civil Liberties Union, 125 S.Ct. 2722 (2005).. 128 Cf. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). 129 See generally, e.g., Chopko, supra note 93. 130 Cf., e.g., Lupu & Tuttle, supra note 88, at 39 (noting the “shift to a subject-oriented religiosity” which “leads many to question why religious experiences, commitments, and communities are different than other intense sensations, beliefs, and associations”). See generally, e.g., ALAN WOLFE, THE TRANSFORMATION OF AMERICAN RELIGION: HOW WE ACTUALLY LIVE OUR FAITH (2003); Garnett, supra note 24, at 1662-65. 131 See, e.g., Lupu & Tuttle, supra note 88, at 39 (“Where religious organizations once occupied much of the public square – as the principal sites of education, charity and moral formation – the activist, post- 22 Freedom of the Church [10-Jul-06

At perhaps a deeper level, though, the libertas ecclesiae principle is both unattractive and vulnerable because of the increasingly widespread acceptance of the idea that liberal values and nondiscrimination norms ought not only to constrain state action, but to inform state action constraining non-state actors and associations.132 Stanley Hauerwas once observed, “the rights of the individual have become the secular equivalent of the church as the means to keep government in its proper sphere.”133 What’s more, though, he continued, the “very means used to ensure that the democratic state be a limited state . . . turn out to be no less destructive for intermediate institutions than the monistic state of Marxism.”134 Similarly, it is more likely today that churches and their autonomy are regarded as dangerous centers of potentially oppressive power, as in need of supervision and regulation by the state in its capacity as protector of individual liberty and conscience.135 In Murray’s words, the “prophets of modernity” regard the freedom of the Church “as a trespass upon, and a danger to, their one supreme value – the ‘integrity of the political order.’”136 But if, as Berman proposed, the freedom of the Church is not easily separated from both the history and the health of political freedom under constitutionally limited government, then it would appear that, in Professor Hamburger’s words, the illiberal expansion of “liberal ideals and, more broadly, liberalism could . . . become a threat to freedom.”137 Murray contended that the “American thesis” is that the state is not “omnicompetent” – that “its powers are limited, and one of the principles of limitation is the distinction between church and state,” a distinction that is itself intimately bound up with the libertas ecclesiae principle.138 However, as Professor Bradley noted, “it is the two-hundred-year-old Enlightenment project to legitimate government and carry on political life without implicating religious commitments[,]”139 commitments like those that would seem inevitably to attend that principle. Can this be done? Murray did not

New-Deal state now dominates.”). On the content and current state of the Rehnquist Court’s “new federalism” or “federalism revolution,” see, e.g., Paper Symposium, Federalism after Gonzalez v. Raich, 9 LEWIS & CLARK L. REV. 743 (2005); Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1 (2003). 132 See, e.g., Bradley, supra note 78, at 1063 (noting the problem created by “the forced introduction into the religious community of civil ‘nondiscrimination’ principles that are at odds with internally generated norms.”). 133 Stanley Hauerwas, Symposium, Center Journal (1982). 134 Id. (“Ironically, that strategy results in the undermining of intermediate associations because they are now understood only as those arbitrary institutions sustained by the private desires of institutions.”) (quoted in Canavan, supra note 119). 135 See generally, e.g., MARCI HAMILTON, GOD V. THE GAVE L: RELIGION AND THE RULE OF LAW (2005). But see, e.g., Dignitatis humanae ¶ 13 (“[A] harmony exists between the freedom of the Church and the religious freedom which is recognized as the right of all men and communities and sanctioned by constitutional law.”). 136 MURRAY, supra note 7, at 207. 137 Hamburger, supra note 100, at 694. 138 MURRAY, supra note 7, at ch. 2. 139 Gerard V. Bradley, Forum Juridicum: Church Autonomy in the Constitutional Order, 49 LA. L. REV. 1057, 1059 (1987). See also MURRAY, supra note 7, at 201 (“[T]he political experiment of modernity has essentially consisted in an effort to find and install in the world a substitute for all that the Christian tradition has understood by the pregnant phrase, ‘the freedom of the Church.’”). 10-Jul-06] Freedom of the Church 23 think so; the individual conscience, he feared, is “not equal to the burden that is being thrust upon it,” namely, “the burden of being the keystone of the modern experiment in freedom.”140 Is there another structural principle, though, that could both fit well in First Amendment doctrine and also compete with and limit government in the way Murray thought the freedom of the Church did? As I have discussed in more detail elsewhere,141 the Supreme Court’s “expressive association” and similar cases – most notably, the Boy Scouts case142 – suggest that the First Amendment’s Free Speech Clause, if not the Religion Clauses, protects the ability of private, mediating associations to generate, inculcate, and propose competing norms and claims, and thereby to play a space-creating, authority-dividing role in civil society:

[A]ssociations are about social structure as much as self-expression. They get in the way just as they facilitate. They are the hedgerows of civil society. They are wrenches in the works of whatever hegemonizing ambitions government might be tempted to indulge . . . . They hold back the bulk of government and are the “critical buffers between the individual and the power of the State.” They are “laboratories of innovation” that clear out the civic space needed to “sustain the expression of the rich pluralism of American life.” Associations are not only conduits for expression, they are the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish143

Certainly, this understanding of associations and their structural function is one that Murray endorsed, for example, in his critique of those “French enthusiasts” for whom “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[] … all self-governing intermediate social forms with particular ends.”144 Still, and in the end, the freedom of “expressive association” is not enough.145 This is because the claims at the heart of the libertas ecclesiae principle are, for lack of a better word, “bigger” than those animating the free-speech cases. After all, Hildebrand’s contention was not that a state-imposed burden on the Church’s ability and right as a voluntary, expressive association to determine for itself the content of its message must be justified by balancing the freedom of speech against compelling state interests. A freedom or independence whose content and boundaries are, conceptually

140 MURRAY, supra note 7, at 213. 141 See Garnett, supra note 113. 142 Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 143 Garnett, supra note 114, at 1853-54 (quoting Jaycees, 468 U.S. at 618-19; PETER L. BERGER & RICHARD JOHN NEUHAUS, TO EMPOWER PEOPLE: THE ROLE OF MEDIATING STRUCTURES IN PUBLIC POLICY 36 (1977)). 144 MURRAY, supra note 7, at 307, 308. 145 Cf., e.g., Volokh (arguing that “expressive association” and not religious freedom, is the basis for churches’ rights to “discriminate” in hiring, etc.) (on file with author). 24 Freedom of the Church [10-Jul-06 as well as practically, determined by the state and with reference to the state’s needs and interests, is not likely to ignite a revolution, or sustain the project of constitutionally limited government. For now, though, it might be all we have.