Religious Freedom and the Churches: Contemporary Challenges in the United States Today 1

Introduction

Is religious freedom under threat? An answer to this question should begin with the observation that, in many places, it has yet to be achieved. Restrictions on religious freedom—often severe ones—are common and increasing around the world. Notwithstanding the commitments professed and aspirations recited in treaties, human-rights instruments, and constitutions, billions of persons do not enjoy meaningful legal protections for the human right to religious freedom. ² Legal and other limits on this right regularly take forms that are foreign to the experiences of most observers in North America and the United Kingdom: harsh punishments for apostasy and blasphemy, legal penalties for conversion, strict controls on religious education and training, prohibition on the construction of—and the outright destruction of—places of worship, and so on.

In many jurisdictions and communities, the live law-and-religion questions are not whether a war-memorial cross may be displayed on public land ³ or whether a Lutheran day-care center may participate in a program that distributes recycled tires for playground-safety purposes. ⁴ They are, instead, whether members of a religious minority will be confined to concentration camps for reeducation or whether an alleged heretic’s execution will be displayed to the world over social media. It is not an exaggeration to note that many millions of religious believers pray the day will come when they have the luxury of arguing about the denominational make-up of the pool of local ministers from which the deliverer of the prayer that opens a town council meeting is selected. ⁵

It might be supposed or charged that the foregoing reflects the priorities and premises of an American, a trans-Atlantic, or some other blinkered ‘perspective’, to borrow from the title of the conference at which this paper was presented. It does not. Religious freedom is neither an ‘impossibility’ ⁶ nor a narrowly ideological, political or colonial project. ⁷ Notwithstanding ongoing debates and important conversations about its contested content and limitations, the right to religious freedom is, and is appropriately cherished or desired as, a fundamental human right, ⁸ one that ‘has its foundation in the very dignity of the human person’. ⁹ Accordingly, the temptation to respond to concerns that this right is under threat, or confronting substantial challenges, either by defining it so that it effectively disappears or by charging that it deserves whatever come-uppance it gets should be resisted.

This article proposes that thriving, independent and free religious institutions are crucial for religious and political freedom under law. That is, what some have called ‘the freedom of the church’ is an essential dimension of religious freedom. ¹⁰ It is also vulnerable and, it would seem, under threat. Although the discussion that follows focuses on developments and judicial decisions in the United States, the core claims about the importance of religious freedom’s corporate, social, institutional and associational dimensions are intended to apply generally.

The Religious Freedom of Institutions

Consider two quotations taken from opinions written by justices of the Supreme Court of the United States. The first is from the dissenting (in part) opinion of Justice William O. Douglas in the 1972 case of Wisconsin v. Yoder. ¹¹ Justice Douglas objected to the Court’s ruling that Old Order Amish families were entitled, by the Free Exercise Clause of the First Amendment to the Constitution of the United States, to an exemption from a state law requiring all children to attend school until age sixteen. In his view, the Court had placed excessive value on the traditions and needs of the Amish community as a whole and attended insufficiently to the views and goals of the particular children whose education was at stake. ‘Religion’, he insisted, ‘is an individual experience’. ¹² Certainly, it is. But is it only that?

The second quotation comes from an opinion of Justice William J. Brennan in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, which was decided in 1987. ¹³ The question in Amos was whether it violated the First Amendment’s prohibition on establishments of religion for Congress to exempt religious employers from the 1964 Civil Rights Act’s ban on religious discrimination in employment. The Court concluded that this exemption was a permissible accommodation of religious exercise, insisting that ‘[t]here is ample room under the Establishment Clause for “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference’”’. ¹⁴ Justice Brennan agreed, but wrote separately to emphasize that ‘religious organizations have an interest in autonomy in ordering their internal affairs’. ¹⁵ He explained:

‘Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected by [the Constitution]’ . . . For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. ¹⁶

In other words, ‘[f]or many people religion is a group activity. People form communities of faith, worship God together, agree on creeds, instruct and correct each other, recruit new members, and so on. This is not just a matter of sociability; it is often built into the structure of their beliefs’. ¹⁷ To be sure, it is common and understandable to talk and think about religious groups as voluntary associations of individuals with similar aims and views. And yet, many insist, a religious body is not reducible to its parts.

I propose, then, that both as a general matter and, more specifically, in the constitutional law of the United States, the right to religious freedom belongs not only to individual natural persons but also to institutions, associations, societies, communities and congregations. ¹⁸ For present purposes, and keeping in mind that the right to religious freedom is enjoyed by those who profess different faiths or no faith, we can say that the right belongs to churches. Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace or reject, churches have the right to select the ministers they will or will not ordain. These ‘organic entit[ies]’ are subjects, not merely results or by-products, of religious freedom. At the center of religious freedom, then, is what is called in American constitutional law church autonomy.

And, religious freedom—that is, appropriate autonomy, independence, authority and jurisdiction—is not just something that the churches have or possess. The right to church autonomy, correctly understood, is also a means, or mechanism, for protecting both the freedom of religion and human flourishing and freedom more generally. The relationship between the enterprise of protecting individual persons’ human rights and religious communities’ right to self-determination is a dynamic, mutually reinforcing one. Human rights law, in other words, protects church autonomy—it protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership and orthodoxy, etc.—and, as we will see below, church autonomy in turn promotes the enjoyment and exercise of human rights. ¹⁹

It is true, of course, as Justice Douglas’s statement illustrates, that Americans tend to think and talk about rights in an individualistic way. Rights, we tend to think, attach to particular people, and protect them, their privacy, their interests and their autonomy from outside authorities. It should come as no surprise, therefore, that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences and practices. However, as Mary Ann Glendon demonstrated almost thirty years ago in her compelling critique of American political discourse and of the legal regime that it reflects and produces, this focus is myopic and distorting. ²⁰ It causes us to overlook and neglect the social context in which persons are situated and formed as well as the distinctive nature, role and freedoms of groups, associations and institutions.

To be sure, the individual human person—every one—matters. He is ‘infinitely valuable, relentlessly unique, endlessly interesting’. ²¹ Every person carries, in C.S. Lewis’s words, the ‘Weight of Glory’. ‘There are no ordinary people’, he insisted, and ‘[y]ou have never talked to a mere mortal. Nations, cultures, arts, civilizations—these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit—immortal horrors or everlasting splendors’. ²² It is fitting, then, that the image of the lone religious dissenter, heroically confronting overbearing officials or extravagant assertions of state power, armed only with claims of conscience, is evocative and timeless. No account of religious freedom would be complete if it neglected such clashes or failed to celebrate such courage.

Still, Glendon was right. Something goes missing when the freedom of religion is reduced to the individual’s liberty of conscience, to her freedom of belief, or even to her right to engage in worship or religiously motivated action. A legal regime that is designed to protect only this reduced notion of religious freedom will leave vulnerable and unprotected important aspects of that freedom. Such a regime will misfire because it describes and categorizes the world in an incomplete and perhaps even distorted way, passing over and leaving out things that matter. However, we should want our laws to describe accurately and fully the world that these laws govern and to which they speak. Such a description will include the freedom that belongs rightfully to religious groups, associations, institutions and communities—again, to churches.

Despite its individualistic tone and orientation, American constitutional law does this. That is, the Constitution guarantees religious freedom not only to individual believers but also ‘to the Church as an organized society with its own law and jurisdiction’. ²³ What the United States Supreme Court has called ‘ecclesiastical right[s]’, ²⁴ no less than individuals’ rights, are protected by the First Amendment. Again, these rights are not merely derivative of or proxies for individuals’ rights; their protection is not simply a vehicle for securing individuals’ liberties. What is more, the American Constitution’s protections for ‘ecclesiastical rights’ are not idiosyncratic or anomalous. That religious freedom has a communal, corporate aspect, and includes a right to autonomy and self-determination for religious communities, is acknowledged in many other nations’ domestic laws and in international human rights decisions and instruments. ²⁵

It seems clear, then, that the freedom of religion which the Constitution protects is and ought to be enjoyed by institutions as well as individuals. What, then, is the specific content of this protection? What, exactly, is church autonomy, and what does it mean, on the ground and in practical terms, for a religious community to have the right to self-determination?

The church-autonomy principle—or, the freedom of the churches—is at least potentially implicated in a wide variety of disputes and contexts: the supervision of diocesan finances by a bankruptcy court or administrative agency, a requirement that religiously affiliated organizations pay for employees’ contraception or that doctors in religiously-affiliated hospitals perform abortions, litigation regarding church discipline proceedings or membership requirements, the division of church property after a schism or split, the application of nondiscrimination laws to churches’ and religious schools’ decisions about the hiring and firing of clergy and teachers, and efforts by governments to control or regulate churches’ selection of their leaders, to mention just a few. The principle is probably not reducible to any single judicial test or implement. In American constitutional law, the church-autonomy doctrine is not so much a rule as it is a grab-bag of holdings, or a collection of themes, animated by a ‘spirit of freedom for religious organizations’. ²⁶ We know 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. ²⁷ It commands that the ‘secular and religious authorities . . . not interfere with each other’s respective spheres of choice and influence’. ²⁸ 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’. ²⁹ 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”’. ³⁰ Returning to Justice Brennan’s opinion in Amos, we can be confident that religious organizations’ ‘autonomy in ordering their internal affairs’ includes the freedom to ‘select their own leaders, define their own doctrines, resolve their own disputes, and run their own institution’. ³¹

Why Institutions’ Religious Freedom Matters

So far, this article has suggested that the freedom of religion has a communal, corporate, public and social dimension, as well as a private one. It is enjoyed by, and helps to safeguard the rights of, institutions as well as individuals. Is this freedom under threat? We will return to this question below; first, it is worth showing that it matters if it is.

It matters because, again, there are crucial connections between pluralism and constitutionalism, between the autonomy of religious institutions and the rights of individuals. John Courtney Murray explored and emphasized these connections with care. In his view, we are not really free—none of us, whether a religious believer or not, is really free—if ‘[our] basic human things are not sacredly immune from profanation by the power of the state’. The challenge, then, is and has long been to find the limiting principle that can ‘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’. 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’. For Murray, it was the freedom of the Church that furnished a ‘social armature to the sacred order’, within which the human person could be ‘secure in all the freedoms that his sacredness demands’. ³²

Here is another way to express the point. In recent years, some American legal scholars have emphasized and explored what they call the First Amendment’s ‘infrastructure’, noting among other things that the freedoms of speech, press and religion require ‘more than the mere absence of government censorship to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]’. ³³ That is, these freedoms are not only enjoyed by and through, they also depend on the existence and flourishing of, institutions like newspapers, political parties, interest groups, libraries, expressive associations, universities, and so on. ³⁴ These institutions play a structural—or, again, an infrastructural—role in clearing out, and protecting, the civil-society space within which First Amendment freedoms can be well exercised and in creating the conditions and opportunities for that exercise.

The same thing can and should be said of churches. No less than the freedoms of speech and press, the freedom of religion requires a strong infrastructure and religious freedom’s institutional dimension—that is, the freedom of the churches—helps to provide it. Like free speech, religious freedom is exercised not only by individuals; like free expression, its securing requires more than protecting a solitary conscience. The freedom of religion is, as was discussed earlier, not only lived and experienced through institutions; it is also protected, nourished and facilitated by them. And so, if we hope to understand well the content and implications of our moral, constitutional and other legal commitments to religious liberty, we have to appreciate the fact that ‘religious entities occupy a distinctive place in the constitutional order’. ³⁵ And we must not only acknowledge but take care of this ‘distinctive place’, attending carefully to the health of religious freedom’s institutional infrastructure. This means, in turn, that we need to think, and perhaps to worry, about the freedom, and the vitality, of the churches.

Challenges to Institutional Religious Freedom

Returning to the question, then: Is ‘religious freedom’, as it has been presented here, ‘under threat’ in the United States? At least one piece of evidence might suggest that it is not. In 2012, the Supreme Court ruled unanimously that the First Amendment requires the so-called ministerial exception, according to which governments may not use antidiscrimination and other employment-related laws to second-guess or penalize religious institutions’ decisions regarding the hiring and firing of ministerial employees. Observers and commentators are used to badly splintered, sharply divided decisions from the Court in cases implicating the First Amendment’s religion clauses and, in the Hosanna-Tabor case, the religious-freedom claim might have seemed to threaten egalitarian values and undermine broadly shared commitments to nondiscrimination in the workplace. Still, the Court’s ruling was definitive and, at least with respect to the principle being vindicated, unambiguous. ‘Both Religion Clauses’—working together and not, as sometimes seems to be the case, at cross-purposes—‘bar the government from interfering with the decision of a religious group to fire one of its ministers’. ³⁶

Chief Justice Roberts, referring to ‘the very first clause of Magna Carta’, noted dryly that ‘[c]ontroversy between church and state over religious offices is hardly new’. However, the context of the First Amendment’s adoption, the relevant American experiences and practices, and a consistent line of the Court’s decisions confirm that ‘the Establishment Clause prevents the government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own’. The justices all agreed ‘interfer[ing] with the internal governance of a church’ violates the Free Exercise Clause, ‘which protects a religious group’s right to shape its own faith and mission through its appointments’, and the Establishment Clause, ‘which prohibits government involvement in ecclesiastical decisions’. For the state to presume to superintend such decisions ‘interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs’. The institutional dimension of religious freedom was underscored: the Court unanimously embraced the proposition, echoing Justice Brennan’s Amos opinion, that the First Amendment gives ‘special solicitude to the rights of religious organizations’.Now, as commentators and litigators have noticed, the Court did not resolve all questions regarding the reach and the implementation of the ministerial exception. ³⁷ The justices did not identify explicitly all of the implications and applications of the broad principles they affirmed. It remains to be seen, for example, how the no-interference or church-autonomy principle discussed in Hosanna-Tabor will apply outside the employment-discrimination context, the procedural mechanisms and rules that courts will use when determining whether the exception is implicated in a particular case, and how broadly the category of ministerial employees will be understood. Still, the Hosanna-Tabor ruling should be seen as a clear and powerful statement regarding the fundamental status of religious freedom in the American constitutional order—one that, at least in some contexts, is not subject to diminishment-by-balancing even against other important interests. As Chief Justice Roberts put it, at the close of his opinion:

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

The Court’s opinion also spoke powerfully, and in one voice, of religious freedom’s institutional, associational and communal dimensions. Part of what ‘religious freedom’ means, the Supreme Court has insisted, in a way that would seem well suited to ward off and beat back any threats, is that religious societies enjoy meaningful autonomy and exercise real authority with respect to matters of doctrine, polity, teaching, discipline and mission.

And yet, Hosanna-Tabor notwithstanding, it appears that there are reasons to be concerned, and indeed to worry, about the role and vitality of churches and other religious institutions, about the state of America’s religious-freedom infrastructure, and about the durability of our legal commitment to churches’ appropriate autonomy. Four related reasons will be briefly mentioned here, not presented in rank-order of importance or seriousness.

The first, and perhaps the most obvious, is the bad behavior (and worse) by religious institutions and church leaders. (It is unfortunate that no citations are needed to provide support for this observation.) The best known and most notorious, though certainly not the only, example is the response of some Roman Catholic bishops and authorities to sexual abuse by clergy. Glaring instances of arrogance, negligence, incompetence and—in some cases—malevolence contribute both to a lack of confidence and a loss of authority. That is, both the churches’ willingness to play a public, infrastructural role and people’s interest in having them play such a role are compromised by venality, hypocrisy and failure. A constitutional or other legal commitment to protecting the churches’ legitimate sphere of authority can only be undermined by scandalous abuses of that authority. It is not a surprise that frustration with churches’ and religious authorities’ failures have prompted calls for intrusive responses, at least some of which encroach significantly on what might otherwise have been seen as religious communities’ spheres of appropriate autonomy. Churches that are weakened—legally, financially, reputationally—by malfeasance are not going to be strong structural components of American constitutionalism.

Another relevant challenge is posed by the general de-institutionalization of American life and the thinning-out of the associational landscape. This development—which Robert Putnam famously associated with ‘bowling alone’ ³⁸ —has been thoroughly studied, variously explained and widely lamented in recent years. ³⁹ It appears that online clusters and tribes of individuals, sorted by their various interests, grievances and intersecting identities, are replacing civil-society institutions, including churches. Although fewer children might seem to mean that parents have more free time, it also appears to be accompanying, even if not causing, fewer decisions to volunteer for school trips, sports coaching or Sunday School teaching. Over and again, it is announced that people are more connected, with more access to information and to each other, than ever before, and yet loneliness is rampant and so-called deaths-of-despair are increasing. The mediating associations, including churches, that might once have been expected to respond to, and mitigate, the harmful effects of these developments are themselves, it appears, victims of them. Many indicators reveal an America that is separating, segregating and coming apart, and it is not clear that our churches will, or can, hold us together.

Third, and related, is the much-commented-upon ‘rise of the nones’, that is, the increase in those who tell researchers and surveys that they have no religious affiliation. ⁴⁰ Now, it is not the case that these unaffiliated are evangelical atheists or anti-religion in an écrasez l’infâme-type way. Most claim to be ‘spiritual’ even if not ‘religious’ and, in fact, many of the unaffiliated profess beliefs and engage in practices that would seem every bit as ‘religious’ as those of institutionally-attached and tradition-embedded believers. Still, they are un-, or perhaps de-, churched. They are likely to be unengaged, not volunteering, and certainly not financially supporting churches’ corporate, institutional and structural roles and activities. The churches are not meaningfully competing with the state, with consumer culture, with political parties or with social-media tribes for their loyalties. Rather, they are there, if and as needed, and are probably not regarded as holding and exercising legitimate authority.

Finally, for now, is what appears to be a trend toward regarding religious freedom more as a luxury good, or idiosyncratic concern, of a few rather than a crucial aspect of the common good, one in which—like clean air and safe roads—everyone has a stake. ⁴¹ This trend is illustrated by the increasing use in leading newspapers of skepticism-signaling scare-quotes around ‘religious liberty’ or ‘religious freedom’. On this view, religious liberty seems a private, special interest. ‘Religion’ is not ‘special’, the argument goes, but is simply one of many things that people do, or do not, care about, and there is nothing about this particular preference that warrants legal solicitude. Or, taking the matter further, in some contexts the interest of scholars and activists is not so much in identifying the threats to religious freedom as it is taming the threat of religious freedom—to egalitarianism, to public health and safety, to individual liberty, and so on. ⁴² Churches, on this view, are not so much vital parts of the infrastructure needed for freedom and flourishing as they are debilitating threats to the stability of that structure.

Conclusion

The appeal of an idea, such as the freedom of the church, or the social, corporate dimension of religious freedom, that might seem to privilege institutions over individuals can only wane as we think, more and more, in terms of personal spirituality rather than institutional affiliation, public worship, shared practices, and the authority of tradition. As was just observed, it is common (and, to a degree, understandable) to regard churches and their autonomy-claims as dangerous centers and sources of oppression rather than as structural protections for persons’ religious exercise and freedom of conscience.

Still, this article has proposed that churches and other religious institutions do and should enjoy a broad freedom to organize, direct and govern themselves and their affairs, in accord with their own teachings and doctrines. This freedom not only benefits from, it also contributes to, the enterprise of promoting, enabling and securing human flourishing through law. For a variety of reasons, though, and in a number of ways, the institutional dimension of religious freedom appears to be vulnerable, threatened, and even under attack. It exists in positive law and judicial doctrine, but its scope and foundations are, increasingly, controversial and contested.

To the extent we regard and engage religious faith and exercise as a form of self-expression, performance or therapy, we are likely to regard religious institutions as, at best, potentially useful vehicles and, more likely, as stifling constraints and bothersome obstacles to self-discovery or to a desired occupation of the field by a kind of liberal, and then illiberal, egalitarianism. To do so, however, would be a mistake.