Abstract
Edward A. David, of the Faculty of Theology and Religion at Oxford University, seeks in his recently published A Christian Approach to Corporate Religious Liberty to offer a theory of corporate religious liberty, primarily applicable to the American setting, that can move religious liberty discourse past the current impasse evident in U.S. Supreme Court opinions in cases like Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 642 (2014). The book succeeds in its originality, its commitment to enriching both legal and moral discourse, and in its sophisticated treatment of the complex interplay of theology, morality and jurisprudence—always challenging waters to navigate but with rewarding outcomes when handled expertly, as here.
David’s book begins by noting the burgeoning attention paid to theories of corporate religious liberty, as legal protections once reserved for natural persons ‘are increasingly extended to artificial corporate entities’ (p. 9). The term ‘corporate religious liberty’, however, is ambiguous, and David does an admirable job as his argument unfolds in sharpening the term’s meaning.
David builds his theory on the Aristotelian-Thomistic assumption that ‘God has care for both individuals and groups’ (p. 16, emphasis original). He thoroughly excavates the different principles at work in two different kinds of groups: those that are ‘distinctly religious’ (like churches) and those that are ‘religiously motivated yet secular in nature’ (p. 21). It is the latter kind of group that was at issue in Burwell, since Hobby Lobby is a for-profit entity.
An important strength of the book is its sensitive comparison of Catholic and Protestant articulations of the freedom of the church, the first kind of corporate religious liberty. The post-Vatican II Catholic perspective, David writes, straddles ‘both sides of the conscience-versus-truth debate’, grounding religious liberty in ‘the call of God’ and created nature while circumscribing freedom of conscience with ‘truth and specifically the truth of Catholicism’ (p. 27). Meanwhile, Protestant perspectives—represented by statements issued or endorsed by the World Council of Churches between 1937 and 1965—omit explicit mention of ‘objective moral truth’ (p. 32). The Protestant argument for freedom of the church, according to David, appeals more to ‘conscience and … a direct relationship between God and the human person’; the Catholic to ‘conscience and a universally accessible order of moral and religious truth’ (p. 32).
The different between Catholic and Protestant emphases is even more apparent in the area of organizational exemptions. There, David notes, Protestant individualism precludes a sharp distinction between church and non-church entities, whereas the Catholic stress on the church’s ‘supernatural personality or … sui generis agency’ (p. 55) gives religious organizations a special ontology. ‘It follows’, David writes, ‘that non-church entities (presumably) lack a supernatural personality and therefore are poor subjects of a [Catholic] theologically grounded … defense’ (p. 55), while Protestants felt free in an amicus brief filed in Burwell to argue that ‘all work done in faith by God’s people [is] sacred, whether accomplished in the church and monastery or in the fields and courthouse’ (p. 40, emphasis original).
David’s theory, at its core, states that religious liberty should apply to ‘group-agential’ actions, as a general rule with respect to the freedom of the church and in a less absolute, case-by-case manner to organizational exemptions. David grounds his theory in Thomas Aquinas’s ‘modest group realism’, which lies between ‘elimination theory’ (that group agency is always reducible to the agency of individuals who make up the group) and ‘strong group realism’ (that a group can have moral agency, minds and intentions distinct from those of its members) (pp. 106–108). David’s development of modest group realism—from Aristotle, Aquinas, John Finnis and Abraham Kuyper—is worthy of attention in its own right. The book’s careful and precise delineations serve as correctives to much of the confused political theology, oversimplified medieval historiography, and even philosophical ruminations on the naturalistic fallacy in circulation today.
For David’s group-agential approach to work, he makes two moves likely to be controversial among different sets of people in the American context. The state, he writes, must have an affirmative conception of the good and even a recognition of ‘the distinct and heightened moral value’ of religious activities (p. 131). At the same time, the church must recognize that the state will have unique insights into what is right and wrong in some cases. This is correct on both counts. Mutual deference and cooperation between church and state is needed to preserve a place for theologically coherent accounts of group agency and religious liberty. The question is whether the political climate and jurisprudential assumptions of present-day America can admit David’s recommendations into the conversation.
The answer to that question seems to be, in part, for the church simply to reclaim the term ‘religious’ by defining it in terms of a moral agent’s ‘intended ends’ (p. 163). Chapter 5 places William Cavanaugh and Nicholas Wolterstorff in dialogue on the definition of the term ‘religious’ and the difference between ‘freedom of religion’ and ‘freedom for religion’. Chapter 6 then pushes the argument against individualism further, offering a fascinating summary of the evolution of conceptions of the church from the corpus mysticum to Lockean voluntarism. David concludes this stage in the development of his argument by mentioning the sparse Supreme Court jurisprudence that approximately conforms to strong group realism.
I admit that the potential legal impact of David’s theory did not fully dawn on me until I was reading the last chapter of his book. He is right again: moral (and legal) discourse would be improved by a shift in conversations about religious liberty ‘from rights to right action’ (p. 222, emphasis original).
David concludes his book with applications of his theory to two salient issues: (1) religious freedoms of public accommodations (e.g., the unending wedding-vendor and cake-baking dramas in the United States); and clerical sex abuse. I leave it to the readers of the book itself to decide if David’s recommendations are correct, desirable and feasible.
A Christian Approach to Corporate Religious Liberty deftly handles the questions that arise within the book’s scope. It offers a cogent and compelling account of how a distinctively Christian approach to corporate religious liberty might look. It does more than that: it tentatively takes that approach in a direction in which it can engage U.S. Supreme Court jurisprudence. The restraint is admirable, but it inevitably suggests additional questions to be explored elsewhere.
First, I found myself wondering how David’s group-agential theory might fit in larger First Amendment discussions. David’s ‘exemption’ approach seems to assume the idea of a natural right to exercise religious belief and practice freely—a negative space of pre-legal liberty that the government can only enter for compelling reasons. That is a prominent assumption in First Amendment theorizing, and those who follow that line of thought may well be right. My suspicion, however, is that the American founders did not approach religious exemptions in such a metaphysical way. What if they simply assumed that legislatures (not courts) would carve out religious exemptions on a case-by-case basis according to some notion of common sense? Of course, the counterargument is that the United States has long since left the stage of its history in which its citizens shared a vision of what common sense might mean in this area. And even the case-by-case approach would have entailed at least some appeal to the overarching principle of conscience, a principle that does a fair amount of work in David’s argument. Nevertheless, I wonder how a group-agential concept of corporate religious liberty would look in a constitutional framework that is not so dependent on ‘ontology’, as David calls it.
Secondly, David’s tracing of understandings of the nature of the church-as-group from the corpus mysticum through Thomas’s modest group realism to Locke’s voluntarist individualism prompted two questions in my mind: (1) Might it be possible to do more work in ‘translating’ at least Thomas’s conception into Lockean language; and (2) if so, could a detailed examination of the turning points in that historical progression suggest steps in the process of such a translation? The undertaking may be neither possible nor desirable. We live in a Rawlsian world, and the U.S. Constitution is Lockean in many respects; David is well aware of that. However, I doubt that a simple, unilateral redefining of the term ‘religious’ would advance the causes of churches and especially non-church organizations, even before the Supreme Court with its current make-up.
Thirdly, in a more theological vein, I wonder if there is work to be done in developing a kind of ‘sacramental jurisprudence’ based on David’s evocative summary of strong group realism’s conception of the church. Although David’s theory centers on the religious telos of groups seeking religious exemptions, he at least gestures in the direction of the religious practice, especially the way in which the sacraments make the corpus mysticum a sui generis group in strong group realism. It strikes me that a group-agential argument centered on the constitutive role of the sacraments might provide at least a slightly more tangible and legally cognizable foundation for the judicial granting of group exemptions.
Fourthly, David writes that the cardinal virtues ‘help practical reason to draw close to (a fragile) beatitude’ (p. 229) in Aquinas’s ethics. It might have little to say to constitutional law, but an exploration of the connection between the acquired virtues and the fragile beatitude available to humans living in this world and in the polis might produce a fruitful political theology. David bemoans the churches’ neglect of the virtues in the discussion of religious freedom. He believes (correctly) that the churches have capitulated to rights language. What if virtues language replaced rights language? How would a group-agential theory work then? Of course, once such a political theology is in place, the question of translatability again comes to the fore. This may be a task of pure political theology rather than jurisprudence.
And, finally, David’s book offers a number of starting points for the development of a cogent Protestant social theology on the question of religious liberty, and on many other questions as well, than we have yet seen. A movement to encapsulate, harmonize and build on Protestant social teachings seems to be gaining momentum in some quarters today. It would be rewarding to see some of that energy devoted to the ideas about Protestant distinctives that David so ably notes.