Citation: 99 Va. L. Rev. 917 2013 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Jul 31 13:28:08 2014 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0042-6601 VIRGINIA LAW REVIEW VOLUME 99 SEPTEMBER 2013 NUMBER 5 ARTICLES AGAINST RELIGIOUS INSTITUTIONALISM Richard Schragger*and Micah Schwartzman** INTRODUCTION .................................................. 918 I. THE NEw RELIGIOUS INSTITUTIONALISM .................... 922 A. Corporatism ........................... ...... 922 B. Neo-Medievalism .................................. 926 II. FOUR OBJECTIONS TO RELIGIOUS INSTITUTIONALISM ..... ...... 932 A. Selective History ........................ ...... 932 B. Anti-Republican ........................................ 939 C. Unlimited Scope ..................................... 945 D. Not Unique.. ................................. 949 III. CHURCHES AS VOLUNTARY ASSOCIATIONS .......... ......... 956 A. Voluntarism. ................................. 957 B. Deriving CorporateRights ............. ................ 962 C. Is Religion Special? ..................... ....... 967 IV. TOWARDS A GENERAL THEORY OF CONSCIENTIOUS OBJECTION.....969 A. What Is at Stake? ....................................970 B. DoctrinalApplications .................. ........... 974 Perre Bowen Professor, Barron F. Black Research Professor of Law, University of Vir- ginia School of Law. ** Professor of Law, Edward F. Howrey Professor, University of Virginia School of Law. For helpful comments, we are grateful to Christopher Eisgruber, Richard Epstein, Rick Gar- nett, Malick Ghachem, Risa Goluboff, Sarah Barringer Gordon, Kent Greenawalt, Abner Greene, Aziz Huq, John Inazu, Leslie Kendrick, Andrew Koppelman, James Nelson, Martha Nussbaum, Michael Paulsen, Mark Rosen, Lawrence Sager, Seana Shiffrin, Nelson Tebbe, Mark Tushnet, and audiences at the University of Chicago Law School, UCLA School of Law, DePaul University College of Law, the Institute for Law and Religion at the University of San Diego School of Law, and the Third Annual Law and Religion Roundtable at Harvard Law School. 917 918 Virginia Law Review [Vol. 99:917 1. The MinisterialException ....................... 974 2. Labor Regulations ..................................................... .... 979 3. Church Property........................................................ .... 981 4. ContraceptionMandates........................ 983 CONCLUSION ................................................................................... 984 INTRODUCTION should play a central role in un- T derstandingHE idea that the religious First Amendment institutions has become increasingly promi- nent in recent years. Litigation over the application of civil rights laws has elicited calls for a doctrine of church sovereignty based on an insti- tutional conception of the religion clauses. For example, in Hosanna- Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, decided last Term, the Supreme Court held that the "minis- terial exception" prevented ministers from bringing employment dis- crimination claims against their church employers.' Although the Court did not explicitly invoke the concept of "church autonomy,, 2 some scholars have understood Hosanna-Tabor to endorse an institutional theory of the First Amendment's religion clauses.3 An institution- centered concept of religious free exercise has also emerged in the ongo- ing controversy over the Obama administration's efforts to require large employers, including Catholic hospitals and universities, to provide their employees with insurance that would cover contraception. Church lead- ers have asserted the Church's right not to be implicated in individual employee decisions that violate religious tenets.4 Religion clause schol- arship has also taken an institutional turn, with some theorists arguing ' 132 S. Ct. 694, 702 (2012). 2 But see id. at 710 (Thomas, J., concurring) ("[T]he Religion Clauses guarantee religious organizations autonomy in matters of internal governance . ."); id. at 712 (Alito, J., con- curring) ("Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance."). See, e.g., Thomas C. Berg et al., Religious Freedom, Church-State Separation, and the Ministerial Exception, 106 Nw. U. L. Rev. Colloquy 175, 175-77 (2011). 4 See, e.g., U.S. Conference of Catholic Bishops Ad Hoc Comm. for Religious Liberty, Our First, Most Cherished Liberty: A Statement on Religious Liberty 3 (2012), available at http://www.usccb.org/issues-and-action/religious-liberty/upload/Our-First-Most-Cherished- Liberty-Aprl2-6-12-12.pdf; see also Michael P. Moreland, The Bishops & Religious Liber- ty, Commonweal (May 30, 2012, 3:50 PM), http://www.commonwealmagazine.org/bishops- religious-liberty ("The state cannot interfere with the internal decisions of churches not be- cause the state has granted an exemption from an otherwise generally applicable law but be- cause religious institutions are free and autonomous groups within the state."). 2013] Against Religious Institutionalism 919 that religious groups have jurisdictional sovereignty, or what some have called the "freedom of the church," which is distinguishable and differ- ent from the protection of rights of conscience.' At least one prominent scholar has gone so far as to reject the idea of freedom of religion, in- stead contending that freedom of the church, with its emphasis on insti- tutions, is the appropriate way to understand religious liberty.6 In this Article, we present various grounds for skepticism about reli- gious institutionalism, especially the concept of "freedom of the church," which we distinguish from the seemingly related but important- ly distinct idea of "church autonomy."' The idea of freedom of the church refers to a set of claims about religious institutions, beginning with the proposition that they are sovereign entities with the power to assert jurisdictional limits against the state.' Religious organizations are not protected by rights that can be balanced against the rights of others or measured against important state interests; rather, their sovereign au- thority places absolute constraints on the state's power to enforce its laws. Furthermore, religious organizations are distinctive in having this form of sovereignty. Unlike non-religious voluntary associations, they are entitled to special legal protections. As we shall see, proponents of freedom of the church offer different justifications to explain the unique status of religious institutions. Common among them, however, is the view that religious groups do not owe their distinction to the rights and 5 See generally Richard W. Garnett, Do Churches Matter? Towards an Institutional Under- standing of the Religion Clauses, 53 Vill. L. Rev. 273 (2008) [hereinafter, Garnett, Do Churches Matter?]; Richard W. Garnett, The Freedom of the Church, 4 J. Catholic Soc. Thought 59 (2007) [hereinafter Garnett, Freedom of the Church]; Richard W. Garnett, Reli- gion and Group Rights: Are Churches (Just) Like the Boy Scouts?, 22 St. John's J. Legal Comment. 515 (2007) [hereinafter Garnett, Religion and Group Rights]; Paul Horwitz, Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 Harv. C.R.-C.L. L. Rev. 79 (2009). 6 See Steven D. Smith, Freedom of Religion or Freedom of the Church? (Aug. 17, 2011) (unpublished manuscript), available at http://ssrn.com/abstract= 1911412. Proponents of "church autonomy" are not necessarily committed to claims about the sov- ereignty of religious groups, the irreducibility of their moral status, or even the distinctive- ness of such groups as compared with non-religious voluntary associations. See Douglas Laycock, Church Autonomy Revisited, 7 Geo. J.L. & Pub. Pol'y 253, 266-68 (2009) [here- inafter Laycock, Church Autonomy]; 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, 1373-74 (1981) [hereinafter Laycock, Towards a General Theory]. 8 See infra text accompanying notes 16-17. 920 Virginia Law Review [Vol. 99:917 interests of their members. Their sovereignty is basic and irreducible, not a function of anything more legally or morally fundamental.9 In what follows, we resist all of these claims. In doing so, we also ex- plain why individual rights of conscience are sufficient to protect the free exercise and anti-establishment values of the First Amendment. Our argument, contrary to some recent scholarship, is that institutions do not, in themselves, give rise to any distinctive set of rights, autonomy, or sovereignty, and that what might be called institutional or church auton- omy is ultimately derived from individual rights of conscience. Indeed, for purposes of understanding religious liberty, we contend that any no- tion of institutional autonomy-to the extent it exists-can come from nowhere else. This argument is not particularly novel: the sanctity of individual con- science is at the heart of the Lockean justification for free exercise and