January 11, 2013
The "Freedom of the Church" at AALS
At the recent Annual Meeting of the AALS in New Orleans, the Law and Religion Section -- so ably chaired by Paul Horwitz this past year -- put on a first-rate panel on "The Freedom of the Church." (About which more here.) Michael Moreland, Michael McConnell, Sarah Gordon, and Paul Horwitz each gave excellent presentations, and Jessie Hill moderated expertly.
Paul helpfully "set up" the issue, noting that the issue is timely in part because of events and controversies like the Hosanna-Tabor decision and the HHS-mandate litigation. He then presented, and reflected briefly on, the criticisms of "religious institutionalism" that have been developed by Micah Schwartzman and Rich Schragger (in this paper).
Sarah Gordon reminded the audience that, the First Amendment's free-exercise and no-establishment clauses notwithstanding, religious institutions and (especially) their property were pervasively and closely regulated in many places during the 19th century, and suggested that this fact complicates arguments that the founders and ratifiers constitutionalized a strong "freedom of the church" principle.
Michael Moreland's very thoughtful presentation noted, among other things, that the debate in the public square and in the legal academy about religious freedom generally, and the "freedom of the church" principle specifically, is shaped -- and perhaps distorted -- by the (contingent) fact that the principle so often is in play in debates about, well, "sex." As he reminded us, the conversation needs to be about "God" and "law," too.
Finally, Michael McConnell reflected on the (he thinks) strange fact that the Free Exercise, in Smith, was held to provide almost no protection to individuals, while Hosanna-Tabor, drawing on a principle of church-autonomy that might seem less textually grounded than individual "free exercise", provided strong protections to religious institutions. (In the Q & A, it was suggested that a number of the Court's decisions -- including Kedroff (more on that case here) -- and also the original meaning of the term "establishment" provide substantial support for the principle applied, and the result reached, in Hosanna-Tabor.
Anyway, thanks very much to the organizers, presenters, and moderators for a really good AALS program.
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