In response to: Freedom of Religion and the Freedom of the Church
One of the challenges in commenting on Rick Garnett’s essay is that I think his deeply thoughtful and measured analysis is basically right on target. If we are going to take individuals’ freedom of religion seriously, we need take into account the importance of their religious communities. Exactly what that means is, unfortunately, hard to say; Rick wisely calls it “less a rule, standard or doctrine” and “more like a background or animating value, even a mood.”
Rick is showing us that there is a fork in the religious freedom road, with one direction heading toward a conception of religious freedom as being a right held and exercised solely by individuals. His careful arguments encourage us to go in the other direction, where institutions also have some religious rights. That certainly makes sense to me, but I thought it might be useful to try to get a sense of the degree to which other Americans are, for lack of a better phrase, in the mood.
If we were to commission a survey asking, “Should churches have the right of religious freedom?,” I suspect that, except for some parts of académe, the most common response would be: “What is this, some sort of trick question?” After all, two-thirds of the public have recently said that corporations should have “certain religious freedoms.” (From a 2014 “State of the First Amendment” poll that can be found here.) If that many people would, at least in the abstract, give businesses the freedom of religion, it seems likely that nearly all would give that right to churches as well.
It is also likely that the public doesn’t really know what it means for companies, or even churches, to have religious freedom—just that it makes sense. Could we gain more insight on this by considering a contemporary controversy? A “hot button” issue at the moment is what many have called the “contraception mandate.” Here, the pollsters have some interesting data, but first a methodological question: If people are asked about exemptions from the mandate, won’t they just use the question as a proxy for their views on either contraception or healthcare reform, or both? Separating those issues is admittedly hard, but the data may nevertheless tell us something about the public’s sense of the freedom of the church—in particular, what counts as “the church.”
In a March 2012 Public Religion Research Institute poll, Americans were asked if publicly held corporations should be required to provide health plans including contraception at no cost. A total of 62 percent said yes. For “churches, and other places of worship,” only 42 percent said yes. In between were religiously affiliated colleges (54 percent) and hospitals (57 percent). Since the underlying issues of contraception and the Affordable Care Act were the same in each case, the percentages for these three types of institutions should provide us with at least a rough reflection of the public’s sense of the relative strength of each one’s claim for a religiously based exemption.
The take-home here, I think, is twofold. First, the public does seem to believe that there is something to the concept of the freedom of the church; and second, there is a stronger claim for the exercise of that freedom for churches as places of worship than for, say, Notre Dame, Baylor or the country’s large network of religiously-affiliated hospitals.
As an interesting aside, the poll also shows that a higher percentage of evangelical Protestants supports this notion of the freedom of the church than either their mainline peers or Roman Catholics. This fact may lead us to reflect on what it means to have the freedom of the church in the context of churches that are much less hierarchical than, for example, Roman Catholicism. A sizeable number of evangelical Protestants belong to local, nondenominational churches. To whom should we look for those churches’ theological commitments on matters of faith and morals? The clergy? A majority of the congregation? The board of elders or trustees? Elsewhere?
Leaving aside these denominational issues, the poll indicates that, at least from a policy perspective, freedom of the church advocates may have some additional work to do to extend that freedom from the churches themselves to schools and hospitals. Chicago’s Francis Cardinal George made just such an effort by combining principled arguments with power politics. In a 2012 Lenten message he said:
Catholic hospitals, universities and social services have an institutional conscience, a conscience shaped by Catholic moral and social teaching. The [contraception mandate] will make it impossible for Catholic institutions to follow their conscience.
He ended his message with a powerful prediction. Citing the Archdiocese’s directory of the numerous Catholic hospitals and other healthcare institutions in the Chicago area, he warned, “Two Lents from now, unless something changes, that page will be blank.”
Cardinal George’s approach is an important reminder of what kinds of events are most often invoked as the historical highpoints of the freedom of the church—the Investiture Controversy in medieval Europe, and Magna Carta. Space is much too limited to delve into the conflicts leading to those historic events, but suffice it to say that, while both represented secular rulers’ formally committing to at least some degree of freedom of the church, these also were heavily negotiated settlements. The church and its supporters had considerable power, and the rulers conceded the freedom of the church in return for other things they wanted. The specific nature of the bargain is less important than the fact that this freedom of the church principle was, to use Rick’s word, operationalized as a result of a negotiated deal to address a real-world conflict.
Cardinal George’s Lenten message is in much the same vein. He is confident that the church has a right to religious freedom and should therefore have an exemption from the contraception mandate for its hospitals. At the same time, he wants to make clear that there are real and predictable consequences of the state’s failure to respect that principle— in particular, the potential loss of the diocese’s 17 hospitals serving over two and a half million people each year.
This kind of power politics goes both ways, of course. It may be useful to keep in mind not only the freedoms won in Magna Carta but also the freedoms lost in cases such as Late Corporation of the Church of Jesus Christ of Latter Day Saints v. U.S. (1890). This case involved an 1887 federal law that not only prohibited polygamy, but disincorporated the LDS Church and permitted the government to seize all church properties valued over $50,000. The only exception was for church property “occupied exclusively for purposes of worship of God, or [a] parsonage . . . or burial ground.” The law became known by the names of its sponsors, George Edmunds of Vermont, and John Randolph Tucker, a professor of constitutional law from Virginia.
The opinion, by Justice Bradley, gave the religious freedom argument impressively short shrift. He noted that “the religious and charitable uses [of the property] are the inculcation and spread of the doctrines and usages of the Mormon Church, . . ., one of the distinguishing features of which is the practice of polygamy,–a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world.”
Despite federal anti-polygamy laws, wrote the justice, “the [Church] perseveres . . . in preaching, upholding, promoting, and defending it. It is a matter of public notoriety that its emissaries are engaged in many countries in propagating this nefarious doctrine . . . .” Doing so is, according to Justice Bradley, “contrary to the spirit of Christianity, and of the civilization which Christianity has produced in the western world.”
He specifically addressed the First Amendment issue, saying, “One pretense for this obstinate course is that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief, and therefore under the protection of the constitutional guaranty of religious freedom.” Calling this claim “a sophistical plea,” Justice Bradley said, “No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief; but their thinking so did not make it so. . . . The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that account, would hesitate to brand these practices, now, as crimes against society, and obnoxious to condemnation and punishment by the civil authority.”
No religious liberty defense was available to the Church, he concluded, because “the state has a perfect right to prohibit [all] open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced.”
Where does that leave us?
As a baseline, places of worship are accorded, in the new public opinion polls and also in the Edmunds-Tucker Act of 1887, the strongest claims for freedom of the church. There is something about a sanctuary that is, well, sacrosanct. As the religious mission moves out of the church and toward more direct contact with the world, however, the rest of the world may push back. The polls say that there is some support, albeit more limited, for the concept of the church carrying its religious freedom rights into the world. Accordingly, as in Cardinal George’s message, churches may need to articulate not only the religious importance of their educational and healing missions, but also the practical importance to society of the churches’ continuing to maintain them.
The churches’ arguments, though, are likely to take them only so far. Legislators and judges will still consider which “offenses against . . . enlightened sentiment” have no constitutional defense. As Jefferson wrote to the Danbury Baptists about the religion clauses of the First Amendment:
Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights.
But then he concluded by saying that there was, nevertheless, “no natural right in opposition to . . . social duties.” Whether religious freedom is held individually or collectively, society will consider which “social duties” and “enlightened sentiment” need to be weighed against that freedom.
I have long benefitted from Professor Garnett’s work in the area of law and religion. Given the sometimes contentious climate in and out of the academy, it is worth highlighting the tone of his writing as well as its substance. Both are admirable. One of Professor Garnett’s core scholarly pursuits has been to argue for a…
Richard Garnett’s Liberty Forum essay argues eloquently for the importance of institutional religious freedom in our system of government and our broader society. As Garnett writes, some form of institutional religious liberty, or “freedom of the church,” is an “old but still important idea.” It’s an idea, moreover, that in one form or another has…
I am grateful to the Liberty Law Forum for publishing my short essay, Freedom of Religion and the Freedom of the Church and for securing thoughtful, helpful responses from John Inazu, Paul Horwitz, and Donald Drakeman. These three first-rate scholars are my friends and teachers; I have learned a great deal from their work and through…