Professor Mark Rosen has posted a new article to SSRN titled Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres (U. Ill. L. Rev., forthcoming). Read the abstract below:
Alongside the contemporary consensus favoring strong protections for individual religious liberty, controversial new claims on behalf of religiously affiliated institutions have been asserted with increasing frequency. They raise difficult questions. For example, are churches entitled to a “ministerial exception” exempting them from federal anti-discrimination laws when hiring and firing ministers? Must Catholic hospitals be exempted from the Affordable Care Act’s “contraception mandate,” which requires that employers provide their employees health insurance that includes contraceptive devices, because use of contraceptives is contrary to Catholic tenets?
To date, scholars have staked out two diametrically opposed approaches. One group argues that churches have inherent autonomy, and a corresponding jurisdictional independence of the state, vis-à-vis matters within the church’s domain. A second argues that churches are voluntary associations that accordingly enjoy no protections beyond their members’ constitutional and statutory rights. The first group favors the ministerial exception and exemptions from the contraception mandate, whereas the second group opposes them.
This Article critiques both approaches, and provides an alternative framework derived from John Rawls’s monumental works on political theory. What this Article calls the “Religious Institution Principle” provides a basis for determining what qualifies as a religious institution, as it explains why religious institutions are not reducible to their members, and why they are meaningfully different from most, possibly all, other associations. But religious institutions do not have any inherent autonomy. Not all religions are entitled to the Religious Institution Principle’s protections, and the principle does not provide anything approaching full immunity from state regulation for the religions falling within its coverage.
In essence, whereas the first scholarly approach treats state and church as separate juridical spheres, and the second approach eliminates the distinct sphere of religion by folding churches into their individual members, this Article conceptualizes government and religious institutions as overlapping spheres.
The Religious Institution Principle’s derivation reveals why it is fair, and why it plausibly can be thought to be acceptable to both religious and non-religious citizens. The principle generates a robust normative framework for evaluating religious institutions’ claims, which the Article applies to a wide array of difficult questions, including the polygamy decision in Reynolds v. United States, sexual abuse lawsuits against clergy, the ministerial exception, the contraception mandate, and the church autonomy cases.
Download the article from SSRN here.
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