Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres

Individual religious liberty enjoys strong legal protections sup-ported by an underlying contemporary consensus in the United States. This legal and cultural consensus took root after a wave of individuals’ complaints of government interference with their ability to practice their religion’s dictates. But the current claims of religious interference have been increasingly asserted on behalf of an array of religiously affiliated institutions. Unlike previous claims, there is no normative consensus as to what, if any protections, these myriad institutions should receive. This uncertainty can be seen in the federal government’s chaotic responses—from recent Supreme Court case law to the Affordable Care Act’s contraception mandate. Scholars have staked out two opposing positions. One group has argued that churches and affiliated religious institutions should be entitled to legal autonomy. A second camp has argued that the state is the singular source of legal authority in modern politics and that all authority and status of a church is entirely derivative of its members’ rights of voluntary association and conscience. This article proposes a third framework to determine the appropriate relationship between religious institutions and the state, what it dubs the Religious Institution Principle. Drawing on John Rawls, this framework rejects both the view that religious institutions are jurisdictionally independent of the modern state, and that religious institutions’ status is derivative of its members’ rights of association and conscience. Instead, the Article argues that religious institutions cannot be reduced to the individuals who compose them, but instead that the protections they deserve may be “greater than the sum of the parts” of their constituent members. The Religious Institution Principle provides a principled approach for determining what counts as a religious institution and what protections such institutions are entitled to.

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