All Posts by Richard W. Garnett

Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Crosspost from Balkinization

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

The contributions to the volume dealing with politics, democracy, and expression – in particular, the essays written by Robert Post and Yochai Benkler – are sensitive to the structures through which we participate in politics and engage in protected, democracy-enhancing speech.  They are attentive, in other words, to the infrastructure that is required for the exercise and maintenance of cherished freedoms. 

Well, like the freedom of speech, religious freedom has and requires an infrastructure.  Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience.  The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them.  The values and goods that the First Amendment’s Religion Clauses are today understood to embody and protect—and, we can usefully refer to this cluster of goods and values as “religious freedom”—are well served by a civil-society landscape that is thick with religious institutions and associations, and by legal rules that acknowledge and capture their importance.  These institutions contribute to—they do not only benefit from, and they are not only protected by—the reality of religious freedom under law.

The theories and doctrines we use to understand, apply and enforce the First Amendment’s religious-freedom provisions should reflect and respect this fact.  They should not be constructed solely to deal with the problems that were the focus of the thoughtful essays on religious liberty contributed by Noah Feldman and Bill Marshall, namely, the task of identifying the bounds of permissible religion-regarding spending or expression by government.  Religious liberty, fully understood, involves not only the immunities of believers but also what was once called “the freedom of the church.”  And, as Feldman and Marshall explain, the separation of church and state involves legal arrangements and constitutional constraints whose point is not so much to artificially exclude religious faith from our civil and political lives as to respect religious institutions’ independence and autonomy.

In my view, if we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Chip Lupu and Bob Tuttle once put it, whether “religious entities occupy a distinctive place in our constitutional order.”  I believe they do, and should.  Today, though, American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices.  The distinctive place, role, and freedoms of groups, associations, and institutions are often overlooked.  This pattern is consistent with the widespread assumption that, because the individual religious conscience is and must be free, religion itself is entirely private.  However, an understanding of religious faith, and religious freedom, that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete.  And, so will the legal arrangements that such an understanding produces.

Indeed, it could be that the Supreme Court’s Religion Clauses doctrine is famously confused and confusing, not because religion is inherently “divisive,” not because scholars disagree about the content and relevance of the First Amendment’s original meaning, and not because that doctrine is the product of changing groups of judges, appointed by Presidents of different parties, with a range of values and commitments.  Instead, it could be that our constitutional doctrine and our thinking about religious freedom under law do not reflect, capture and translate very well the importance of particular institutions in the constitutional order and to the values that the First Amendment should serve.

Now, how does the infrastructure of religious freedom work?  How, exactly, do churches (and the like) shore up (and not just find shelter within) the freedom of religion?  It is clearly not by supplanting the freedom of the individual religious conscience as the ultimate beneficiary of religious freedom under law.  Quite the contrary.  As I have spelled out in more detail elsewhere, the existence and independence of religious institutions long served, and is still needed today, as – in John Courtney Murray’s words – the “social armature to the sacred order,” within which the individual human person could be “secure in all the freedoms that his sacredness demands.”

Of course, the days are long gone – and 2020 will not bring them back – when we could speak of the Church as the chief rival to, check upon and sometimes close partner with the State.  Today, in our religious-freedom doctrines and conversations, it is likely that the independence and autonomy of churches, and of religious institutions and associations generally are seen as deriving from the free-exercise or conscience rights of individual persons rather than as providing the basis for the exercise of those rights.  (Indeed, many would say, and perhaps celebrate the fact, that institutions are becoming less important to our religious, or “spiritual,” lives.)  It remains the case, though, that the existence and independence of religious institutions are needed to – quoting Murray again -- “check the encroachments of secular power and preserve [the] immunities” of our “basic human things.”  Murray was right to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to ensure religious freedom; it is not, as he put it, “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.”  An institutional approach to the Religion Clauses – an approach that is consistent with the reality of increasing pluralism and should therefore be attractive to progressives --  would recognize this worry, and have responding to it as its chief aim.


Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

Religion and Division

Crosspost from Balkinization

A particular narrative has, for many years, informed and shaped both our thinking about the meaning and purpose of the First Amendment’s no-establishment-of-religion rule and the construction-by-courts of the doctrines, standards, and tests used to enforce that rule. The narrative goes something like this: Europe suffered through many years of war, persecution, and political turmoil, in large part because of the failure to appropriately separate church and state, religion and politics. As Madison put it, in the Memorial and Remonstrance, “[d]uring almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Our Founders learned from this experience, the narrative goes, and so sought to guard against “divisiveness” in politics by privatizing religion.

Obviously, there is something to this narrative. As I have tried to explain in more detail elsewhere, though, I believe it is a mistake – one that for several decades misshaped our constitutional doctrines and debates and one that “progressives” and “conservatives” alike should want to see abandoned well before 2020 – to think that observations or predictions of “divisiveness” should have any significant place either in the judicial enforcement of the no-establishment rule or in citizens’ participation in what Jack Balkin calls the broader “tradition of redemptive constitutionalism.” After all, and to quote Madison again, “[l]iberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Noah Feldman and Bill Marshall contributed thoughtful essays to The Constitution in 2020 on the challenge of “protecting religious diversity” through our Constitution. I agree with much – most, in fact – of what they wrote, notwithstanding the fact that the “constitutional vision” developed and defended in the volume is, for the most part, not my own. This short comment is not intended as a criticism, or even a direct response, to their essays. It was, instead, merely prompted by what seemed to me to be each scholar’s embrace of the idea that the First Amendment was designed to be, and should be, understood and enforced with an eye toward avoiding or soothing “divisiveness.” (Professor Feldman, for example, follows Chief Justice Burger – and, more recently, Justice Breyer – in stating that a no-money-to-religion rule can be justified “on the ground that debates over government funding are likely to lead to political polarization – an especially great risk in our vibrantly diverse society.”)

In my view, though – and in John Courtney Murray’s words – we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.” Pluralism, Murray thought, “is the native condition of American society” and the unity toward which Americans have aspired – e pluribus unum – is a “unity of a limited order.” As I see it, those who crafted our Constitution believed that both authentic freedom and effective government could be secured by harnessing, rather than homogenizing, the messiness of democracy.  It seems both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well, and engaging in precisely the “larger dialogue” and “conversation” for which The Constitution in 2020 calls.

Roberto Unger suggested, more than a decade ago, that one of the “dirty little secrets of contemporary jurisprudence” is its “discomfort with democracy.” And, in a similar vein (though not with regard to the Establishment Clause), Rick Pildes has voiced the worry that “in the political realm, judges and others cling . . . tenaciously to the fear that too much politics, or too competitive a political system, will bring instability, fragmentation, and disorder.”  In my view, our thinking about religious liberty and church-state relations, and about the role of courts in protecting that liberty and policing those relations, should not – today or in 2020 -- be affected or colored by this “fear.”

Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").