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W. COLE DURHAM, Jr., INSTITUTIONAL CONCIENCE

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проф. Кол ДюремI.          Introduction

It is a privilege and an honor for me to take part in this conference.  I acknowledge the outstanding organizational work done in particular by Professor Ekaterina Elbakyan and the various others who have cooperated to bring this conference about.  I am also pleased to be a participant in this particular session, which addresses the “Social Functions of Religion and Religious Organizations in Modern Social Processes.”

Let me begin by quoting from a recent op-ed piece published in the Wall Street Journal by Jonathan Sacks, Britain’s  chief Rabbi. Commenting on the recent riots in England, he indicated that such events should not have come as a surprise.  In his words, Britain is the latest country to pay the price for what happened half a century ago in one of the most radical transformations in the history of the West.  In virtually every Western society in the 1960s there was a moral revolution, an abandonment of its entire traditional ethic of self-restraint. . . . The Ten Commandments were rewritten as the Ten Creative Suggestions. . . . You do not have to be a Victorian sentimentalist to realize that something has gone badly wrong since.  In Britain today, more than 40% of children are born outside marriage.  This has led to new forms of child poverty that serious government spending has failed to cure. . . . Whole communities are growing up without fathers or male role models.  Bringing up a family in the best of circumstances is not easy.  To try to do it by placing the entire burden on women—91% of single-parent families in Britain are headed by the mother . . . –is practically absurd and morally indefensible.[1]

Rabbi Sacks attributes these social problems to a tsunami of wishful thinking that washed across the West saying that you can have sex without the responsibility of marriage, children without the responsibility of parenthood, social order without the responsibility of citizenship, liberty without the responsibility of morality and self-esteem without the responsibility of earned achievement.[2]

The tsunami, in turn is rooted in a disintegration of the social role of religion, which Tocqueville had recognized is vital for three reasons:  religion strengthened the family, taught morality, and encouraged active citizenship.[3]

 

II.         Religion and the Generation of Social Capital

There are many in today’s world who would challenge Rabbi Sack’s assertions, but it is clear that they have substance.  It is now well-known that religion plays a significant role in building social capital.  There are many dimensions to this phenomenon.  Let me mention just a few.  First, there is the relationship between religiosity and charitable giving.  Every major religious tradition encourages charitable activity.[4] Arthur C. Brooks of the Hoover Institution has documented the impact of such teachings.  On the basis of the Social Capital Community Benchmark Survey completed in 2000, he found that 81% of the entire population gave to charity and 57% provided some volunteer service over a 12 month period. 91% of those who were religious donated money, whereas 66% of those who were secular did so.  Similarly, 67% of those who were religious volunteered services, whereas 44% of those who were secular did so.[5] While several factors have an impact on charitable giving—overall governmental tax burden, the tax treatment of donations, unofficial family and social giving patterns, and national wealth, religiosity is clearly an important factor. It turns out that it is not the particular religious denomination that makes the greatest difference in whether individuals donate money or volunteer services, but whether they are a practicing members of their faith.[6] Significantly, religious people are more generous than secular people not only with respect to religious charities but with respect to nonreligious causes as well.[7]

Religiosity contributes to social capital in many less tangible ways.  It contributes to general neighborliness and also, interestingly, to levels of tolerance in communities.[8] It reinforces patterns of voluntary compliance with law, without which every legal system would founder.  It helps shape social ideals and social vision, and motivates striving toward them.  Without this influence, democracy could easily sink to its lowest common denominator—a chaos of self-interest.  In general, religion contributes to the solution of the problems that Rabbi Sacks identified.

Religion’s contribution to social capital is at least a partial explanation for the recent empirical documentation of the fact that religious freedom is highly correlated with many other social goods. Religious freedom protects religious motivations, which in turn protect key institutions, and play a positive role in stimulating the growth of social capital.  One of the best studies of this phenomenon as a global trend is the recent work of Brian Grim and Roger Finke, which have documented this pattern worldwide.[9] The following chart from their work shows graphically the positive correlations between religious freedom and countless other social goods:

диаграммаThis is not to say that the influence of religion is all positive.  We are all acquainted with the ambivalence of the sacred:  that while religion calls for all that is highest about humanity, it is also sometimes accountable for the worst of man’s inhumanities to man (and even more, to woman).[10] But it is altogether too easy to overemphasize some of the problematic features of religion, and to forget the incredibly significant social role that religion plays.

 

III.        The Importance of Expressive Institutions

Religion is one of several types of expressive institutions that play a critical role in democratic societies.  Other such institutions include newspapers, television and radio, political parties, libraries, universities, and a variety of other civil society institutions.  By comparison to many of these others, religion is even more fundamental, because in so many cases, it is religion that helps to bring about many of the other expressive institutions.  Because of the significance of such institutions, there is a growing body of work in the United States focusing on what has been called the “infrastructure of free expression”[11] and more generally on “First Amendment institutions.”[12] In some respects, this work fits into a larger tradition on the significance of civil society institutions and their role in mediating between the individual and the state.[13] What is significant about this scholarly development is the recognition that constitutional doctrine goes astray when it analyzes religious and expressive rights in ways that ignore the distinctive institutional contexts that are vital to the exercise of these rights.[14]

In this regard, however, we are facing a crisis in the protection of the proven religious institutions that do most to strengthen society.  In some ways, the crisis—at least as experienced in strong constitutional democracies—is an odd one. It is not a crisis that takes the form of a frontal attack on religious freedom norms or their status as fundamental human rights.  No one is suggesting repeal of Article 18 of the International Covenant on Civil and Political Rights, or that the guarantees of religious freedom in most constitutions on earth should be withdrawn. Rather, there is a tipping point phenomenon and a pattern of erosion by exception—exceptions in the name of other rights and other state interests, exceptions in the name of transformed equality norms, and exceptions deriving in the end from lost perspective on the importance of freedom of religion. In what follows, I will focus on what I call “institutional conscience”—claims of conscience asserted by institutions in the course of carrying out their affairs.  I turn first to some concrete examples of this type of conflict, and then focus on three types of erosion: (1) erosion in the standards of review used in assessing the viability of constitutional and human rights claims involving freedom of religion or belief; (2) erosion resulting from a transformational shift in the way fundamental rights to religious freedom, equality and privacy are understood; and (3) erosion of the critical right of religious institutions to autonomy in their own affairs.

 

IV.        Dilemmas of Conscience Faced by Religious Institutions

Paradigmatic crises of conscience are reminiscent of Antigone:  the conscientious claims of the individual are in conflict with opposed demands of the state.  The crises of conscience faced by individuals in these settings become even more complex in the institutional setting.  A searing example involves the dilemma faced by Catholic adoption agencies in Massachusetts and Washington, D.C. that were told that refusal to arrange adoptions for homosexual couples would violate laws forbidding discrimination on the basis of sexual orientation.  Because facilitating adoptions in this context violated conscientious beliefs of the church, these Catholic adoption agencies were closed down.  Refusal to grant an exemption to respect their conscientious views meant that religious institutions could not carry out religiously motivated activities. Beneficial services they had been providing for years ceased to be available.

Issues of this type appear to be on the rise.  As an example, let me describe the changing situation with respect to controversial medical procedures in the United States.  The background goes back to the Church Amendments, first enacted in 1973 shortly after the Supreme Court’s decision in Roe v. Wade struck down most existing abortion legislation in the United States.  The Church Amendments protect against government pressure to participate in sterilization or abortion. In 1996, Congress passed the Public Health Services Act, which further limits federal, state and local governments from penalizing individuals and institutions that refuse to participate in abortions, abortion training, or abortion referrals.  The Weldon amendment, incorporated in HHS appropriation acts since 2005, protects not only health care practitioners and institutions, but also HMOs and insurance plans that object to paying for abortions.  Late in the Bush administration, regulations were adopted aimed at strengthening protections for conscientious objection in the medical domain.  These regulations provided a broad definition of what counts as assisting in the performance of abortion.  They also required recipients of HHS funds to certify in writing that they would comply with federal conscience clause provisions. And third, they designated the HHS Office for Civil Rights to receive complaints for violations of conscience protections. Among other things, the regulations made it clear that health care providers did not need to provide referrals. In addition to federal conscience clause protection, it is important to note that there is widespread protection in the various states.  Forty-seven out of fifty states protect health care practitioners’ right of conscience to some degree or another.[15]

Against this background, on February 23, 2011, HHS issued a final regulation rescinding most of the Bush regulation. Specifically, the new rule eliminates all of the definitions from the Bush regulation and eliminates the requirement that recipients of HHS funds certify that they will comply with those laws. The only element of the Bush regulation that remains is the designation of OCR to receive and coordinate complaints.  The Obama regulations do not necessarily eliminate the prior protections, but they revert to the ambiguity that existed on some issues before the Bush regulations, and they leave enforcement substantially to the discretion of Obama appointees who handle individual investigations of claims. The Obama regulations also drop the certification requirement.  In sum, the Obama regulation significantly narrows protections for conscience, while leaving the remaining protections largely at the discretion of HHS officials.

An even greater cause for concern for institutional conscience are new federal regulations promulgated under “Obamacare” legislation.  The regulations require employers to provide health care coverage without deductibles or copays for “preventative services” that include sterilization, contraception, and abortifacients.[16] These provisions are profoundly problematic for Catholic and many other religious employers.  Recognizing the conflict with conscience, the regulations amend Section 147.130(a)(1)(iv)[17] of the Code of Federal Regulations to provide that the Health Resources and Services Administration (HRSA) may establish exemptions from binding health plan coverage guidelines for group health plans established by religious employers.  For purposes of this provision, the term “religious employer” is defined as follows:

an organization that meets all of the following criteria:

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization as described in [specific sections of the Internal Revenue Code].[18]

The definition of “religious employer” fails to solve the institutional conscience problem for a wide range of employers.  A few examples suffice to demonstrate the difficulty. In the first place, there are many religiously affiliated institutions—e.g., health care institutions and universities—for which “inculcation of religious values” is not the purpose of the organization. Moreover, many religiously affiliated charities are committed to serving not only their own members, but any who are in need.  In some cases, this breadth of service requirement is a precondition for obtaining governmental subsidies vital to carrying out the charitable work in question.  Such universal outreach would disqualify the organization from claiming the exemption, because it would not be the case that the organization “primarily serves persons who share the religious tenets of the organization.”

Governments should not force religious organizations “to choose between their ministry and their beliefs.  Whatever the reason for designing the exemption so narrowly, the effect reinforces an ominous recent trend:  seeking to sequester religious organizations from public life.”[19] Defining exemptions for institutional conscience narrowly in this way has the simultaneous effect of violating freedom of conscience and of depriving society of the benefits that the religious community is clearly willing to provide. If religious organizations are not permitted to uphold and model the beliefs they proclaim, what credibility are those beliefs likely to retain? How can a religious organization effectively preach principles it is not allowed to practice?  There are of course some areas where public concerns are sufficiently compelling that religious beliefs may be overridden, but this is typically true only when there is broad social consensus and even then, only when the state’s requirements are crafted so as to result in the minimal conflict with conscience. Particularly where the state requirements in question are highly controversial, it is unlikely that exempting those conscientiously opposed to a measure will prevent its being implemented by those who favor it.

 

V.         Erosion of Standards of Review of Religious Claims

This takes us to the core problem of determining when claims of conscience should prevail, and when they must give way to other imperatives.  Unfortunately, this is one of the most dramatic areas of erosion or threatened erosion of religious freedom protection: shifts in or manipulations of the standards in constitutional and human rights law that are used to assess the viability of religious freedom claims.  Erosion occurs in this area both through reformulation of the applicable standards themselves and through less obvious changes in the starting calibrations of the balancing mechanisms used by judges (the baseline assumptions of what constitutes neutrality) and through changing the weights assigned to other values thrown into the balance against religious freedom.

The struggle concerning the standard of review has been the central drama regarding religious freedom for the past two decades in the United States, and is also vital in other legal systems where religious freedom claims wend their way into courts. Prior to 1990, Supreme Court decisions in the United States held that burdens on religious liberty could only be justified by narrowly tailored compelling state interests.  That is, they had to withstand “strict scrutiny”—a difficult though not insurmountable challenge.  In 1990, in Employment Division v. Smith,[20] the Supreme Court jettisoned that test, and held that subject to certain exceptions, any general and neutral law would override religious freedom claims. This unleashed a series of efforts in Congress and state legislatures to reinstate strict or at least heightened scrutiny, thereby providing stronger protection of religious freedom than had been established by the Supreme Court as the minimum constitutional standard. Free exercise rights have shown remarkable resilience in this drama, but the result is a patchwork the provides less comprehensive protection of religious freedom than had previously been in place. [21]

Similarly risks of erosion are present in international settings, such as in the case law of the UN Human Rights Committee or the European Court of Human Rights.  These bodies apply virtually identical treaty language in assessing permissible limitations on manifestations of religion.  Limitations on manifestations must pass three tests.  First, they must be prescribed by law.  This requirement has a formal element (requiring that the interference in question is legally authorized) and a qualitative element (requiring that fundamental rule of law constraints such as non-retroactivity, clarity of the legal provisions, absence of arbitrary enforcement and the like be observed).  Note that as a practical matter this is the minimum floor established by the Smith decision in the U.S., which implicitly assumes that rule of law constraints alone provide a sufficient protection of religious freedom.

International standards go further and prescribe a restricted set of permissible or legitimating grounds for limitations. As enunciated in the ECHR, these legitimating grounds are restricted to those which are necessary “in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”[22] While the legitimating grounds are quite broad and in most cases at least one is available to support the particular limitations being challenged, it is quite clear that only the enumerated legitimating grounds may be invoked to justify a limitation.[23] Note the U.S. “compelling state interest” test is arguably broader, in the sense that anything a court thinks is “compelling” may meet the standard.

The real core of the ICCPR/ECHR test lies in assessing whether the particular limitation is “necessary” or “necessary in a democratic society,” and the European Court has construed this to require a “pressing social need” that is “proportionate to the legitimate aim pursued.”[24] Clearly, when analyzed in these terms, the issue of necessity must be assessed on a case-by-case basis.  However, certain general conclusions have emerged.  First, in assessing which limitations are “proportionate,” it is vital to remember that “freedom of thought, conscience and religion is one of the foundations of a “democratic society.”[25] State interests must be weighty indeed to justify abrogating a right that is this significant. Second, limitations cannot pass the necessity test if they reflect state conduct that is not neutral and impartial,[26] or that imposes arbitrary constraints on the right to manifest religion.[27] Discriminatory and arbitrary government conduct is not “necessary”—especially not in a democratic society.  In particular, state regulations that impose excessive and arbitrary burdens on the right to associate and worship in community with others are impermissible.[28] In general, where laws are not narrowly tailored to further one of the permissible legitimating grounds for limitation, or where religious groups can point to alternative ways that a particular state objective can be achieved that would be less burdensome for the religious group and would substantially accomplish the state’s objective, it is difficult to claim that the more burdensome alternative is genuinely necessary.  Further, counterproductive measures are obviously not necessary. Finally, the U.N. Human Rights Committee has noted that limitations “must not be applied in a manner that would vitiate the rights guaranteed in article 18,”[29] and the European Court would no doubt take a similar position. Finally, restrictions on religious freedom “must not impair the very essence of the right in question.”[30]

In addition to the foregoing, both the United States strict scrutiny and the ICCPR/ECHR approaches impose threshold requirements below which religious liberty claims are not cognizable.  In the United States there must be a “substantial burden” on free exercise before the burden shifts to the state to establish that there is a compelling state interest that cannot be accomplished in some less restrictive manner. In Europe, there must be an “interference” with a manifestation of religion.  Unfortunately, as cases proliferate, it is becoming evident that some courts will find ways to set this threshold unreasonably high, so that they can dismiss a case without further balancing of the rights and interests at stake. One of the most striking cases in this regard was Jewish Liturgical Association Cha’are Shalom ve Tsedek v. France.[31] There the European Court of Human Rights held that denial of independent authority to an ultra-Orthodox Jewish group to slaughter meat in compliance with their religious requirements did not constitute an interference with manifestation of religion of the group in France, because they could obtain conforming meat from Belgium. These cases are fact-sensitive, and time does not allow exploring them in depth here, but in the future, efforts are needed to prevent setting the burden/interference threshold too high, as I believe it was in the ritual slaughter case. Some of the cases seem to suggest that even massive monetary burdens are not sufficient to cross the threshold because they are “merely financial.”  In some cases, this has allowed imposition of significant burdens on individual claimants.

There are a variety of ways that religious freedom rights can be eroded under the various tests examined here.  Relying solely on rule of law constraints (as opposed to insisting on proportionality tests in addition) places religious groups at the mercy of legislative majorities. More significantly, it drastically shifts the likelihood of success for religious claimants at the grass roots level.  When a religious claimant meets with an official requesting an accommodation with respect to a religious claim, the official is more likely to seek a solution if his solution will be subjected to strict scrutiny.[32] In contrast, if the laws authorizing the official’s activity are reviewed under a deferential standard of review according to which any neutral or general law can trump religious freedom, the official has virtually no legal incentive to cooperate and an accommodation depends on his or her good graces.  This is particularly problematic for unpopular or less known groups.

More significantly, both American compelling state interest and proportionality analysis confer significant discretion on judges in weighing religious freedom claims. A primary issue here is that cultural shifts associated with the process of secularization lead many judges to assign greater weight to secular state interests and less to religious concerns.  This can occur because religion is no longer seen to deserve special protection, because there is a sense that religious activities and religious views should be consigned exclusively to the private sector, because religion has become more suspect as a locus of social danger, or for any of a variety of other reasons.

Even if judicial biases are not skewed in this way, there is a risk that the characterization of the values being balanced can be manipulated so that they system wide interests of the state are balanced against the individualized concerns of the religious freedom claimant.  A more reasonable approach balances the marginal burden faced by the state in the particular interest against the actual burden of the claimant.

 

VI.        Transformational Shifts in the Understanding of Fundamental Rights

Erosion of the judicial standards used to review religious freedom claims goes on against the background of broader jurisprudential shifts.  These I can describe only briefly, but their ramifications are profound.

The first of these shifts can be described as the loss of an integralist conception of the legal order.  There are at least two broad ways that conscientious objection can be conceptualized legally.  The first could be described as the legalist view:  the legal system is understood fundamentally as legislation. Legislation is all the law and all law is legislation.  Granting exceptions for conscientious objection under this view would “pulverize” the law and lead to anarchy. This is essentially Justice Scalia’s view in Employment Division v. Smith, which held that any neutral or general law, with some limited exceptions, could override religious freedom claims. The alternative as an integralist view:  the legal system includes legislation as adjusted to take constitutional norms into account.  Conscientious objection in this view is not a tolerated exception to a general rule.  It is an integral part of the rule structure itself. Conscientious conflicts do not pose a confrontation of private and public, but a resolution of two public interests.  The law is not legislation subject to exceptions, but legislation as contoured by the requirements of constitutional and international human rights law.

The fading of the integralist conception of legal order and the tendency to see conscientious objection through the legalist filter connects with a second and more general shift in equalitarian jurisprudence.  Instead of being seen as a legitimate distinguishing factor justifying differential treatment, religious considerations are gradually demoted, until they become a ground for discrimination.  Religious beliefs and conduct once thought to deserve the highest forms of constitutional protection increasingly come under censure from those administering a new orthodoxy in equalitarianism.  In this framework, conscientious objection comes to be seen not as an expression emanating from the core of human dignity, but as a potentially anarchic and dangerous anomaly in the legal system.

This erosion takes the following form.[33] The first stage takes the form of an equalitarian questioning of the constitutional privileging of freedom of religion or belief.  The fact that this norm is constitutional bedrock in most legal systems, including the international human rights system, is ignored, and a seemingly benign question is asked:  why is religion special?  Why should the conscientious objector to working on his or her Sabbath receive special deference? Why should special care be taken to avoid discrimination in religious land use decisions? Why should religious belief serve as the ground of a special exemption from otherwise applicable law? In principle, these are fair enough questions. People should be treated equally. Their dignity should be respected.  But the questions are too quick. They ignore the fact that at profound historical and constitutional moments, some of the best constitutional minds in human history thought there were sound answers to these questions—answers that explain why religion and religious institutions deserve special respect and special protection.  These reasons include the fact that religious members of religious communities might not have agreed to the general social contract if joining the political community exposed them to the risk of violating their even deeper religious principles.  They include recognition that religious communities are unlikely to be maximally productive members of society if their belief system is threatened. The questions elicit rhetorical but misleadingly superficial answers.  They forget that equality is not the only value in social equations.  Achievement of equal non-freedom for all would be a tragic social failure.

Moreover, while the “why is religion” different questions reflect a legitimate call for equality, as a practical matter they have an unforeseen effect. They place a virtually infinite ongoing justificatory task on religious groups. Ironically, while maintaining that all beliefs should be treated neutrally and equally, religious groups are constantly re-challenged to demonstrate their value.  There is no finality, but only endless re-justification.  And because religion touches virtually every area of life, the re-justification is potentially far more extensive than other entities might face.  Moreover, what the questions pose are not merely interesting thought experiments, but burdensome litigation.

There is also a tendency to weight the scale, in determining whether some secular concern outweighs a religious belief, in favor of secular interests, or more accurately, because secular and spiritual values are incommensurable, by creating presumptions in favor of the secular.

A second stage of the erosion is embedded in the claim that “religion is a private affair”—that it is fine for religion to have its freedom, so long as it stays in the private sphere. A corollary is that religious premises may not be invoked in public arguments. Religion is fine when it is doing charitable work, but it should stay out of politics altogether. The erosion goes a step further when it comes to decision of the constitutionality of legislation that has been supported in the political process by religious advocates.  In recent cases involving same-sex marriage and the Defense of Marriage Act (DOMA), judges have employed the “rational basis” test to assess constitutionality of the statute. The rational basis test is designed to be very deferential to the legislative branch, and holds that if there is any rational basis for the law, it should be sustained.  Judges in these cases have held that religious arguments did not rise to the level of a rational basis for the laws in question.  In this setting, religion is no longer equal to other participants in society; it has become very much a second-class citizen.

That leads to yet a third stage in the erosion of protections.  Instead of being seen as a presumptively beneficial factor in society, religion comes to be seen as a predominantly negative force.  The dark side of the “ambivalence of the sacred” is seen as more representative; positive contributions are overlooked.  Such judgments are never scientific, and in the nature of things, probably never can be.  Moreover, there is an inevitable skewing factor.  Bad or scandalous conduct attracts media coverage; positive contributions are routine and thus invisible.  But in the end, this results in a movement starting with special protections for religion, then questioning whether any privileging is justified, then suggesting that religious speech should have second-class status, and finally ending at a point with religion being a negative factor warranting negative reactions by the state and society. The result that appears to emerge is one in which no discrimination is possible on the grounds of any life-stance preferences, except if the life-stance preferences are religious.  Viewed from a different vantage point, equality capable of recognizing when conscientious objection should be an appropriate ground for differential treatment, fades into non-discrimination (which abstracts from and tends to ignore such differences.  That is in turn equated with the neutrality of the state, which is linked to secularism, which is all too prone to neutralize religion, or at least drive it from public space.[34]

 

VII.       Threats to Religious Autonomy

At the deepest level, challenges to institutional conscience described earlier pose questions concerning the nature and scope of religious autonomy.  In our rights-focused time, we tend to think of questions of autonomy using the vocabulary of rights.  The autonomy of religious institutions is derived from other (typically individual) rights. But from a historical perspective, the idea of religious autonomy is considerably older than modern “rights talk,” and in most of that history, religious autonomy has been thought of as a matter of competing jurisdictions, rather than as a matter of individual rights.

Religious autonomy as I am using the term here is not a synonym for religious liberty in a more general sense, but a competence of religious communities to decide upon and administer their own affairs without governmental interference.  It is in effect a right of self-determination for religious groups.

The substantive scope of religious autonomy covers a range of characteristics and activities of religious communities.  Most fundamentally, it includes the ability to determine fundamental beliefs, including basic notions of doctrine, dogma and teachings.  Among the key beliefs thus covered are beliefs about the structure of the religious polity of the community and the principles of its governance.  This ability to determine fundamental beliefs extends to formulating the norms by which the community is governed and administered, whether this takes the form of canon-law, informal rules of governance, or some other form.

The substantive scope of religious autonomy also includes a range of issues that belong to the core ministry of the community.  These include matters of worship, ritual and liturgy; establishing places of worship; confidential counseling and confession; teaching the faith to members, clergy, and to non-members; and humanitarian care for members and others. Particularly significant for the life of any community are the selection, supervision, discipolining and termination of personnel.  This includes religious or ministerial personnel, employees and volunteers who contribute directly to the religious mission of the community, as well as other employees and volunteers, who perform support services for others in the community.  Religious autonomy also determines church membership:  requirements for entrance into, participation in, and withdrawal or expulsion from the community.  The determination of the nature, governance and territorial arrangements of substructures, linkages to other religious communities, and so forth, are very significant.  Matters of finance are critical to the functioning of the organization, and the methods of acquiring, using, and disposing of funds and other church property are central issues for church administration.

Religious communities necessarily interact with the world and with surrounding legal systems in a variety of ways.  In this regard, the right to acquire legal entity status is of immense practical importance.  The right to conduct religious life without such status is one way in which religious autonomy can be used, but most communities have come to prefer the convenience and the enabling power of liberal legal entity rules.  Religious autonomy presupposes that access to entity status should be easy, and that the status acquired should be sufficient to carry out the full range of religious activities.  Religious autonomy also includes the right to create sub-entities and to have them recognized as decided by the religious community.  The right to religious autonomy implies that religious communities should have broad latitude in structuring their personnel affairs, implying that they are not required to use otherwise applicable labor law strucutres.  Much the same can be said in domains of charitable, cultural, and educational activity.  Religious communities should also have broad latitude and strong cooperation with respect to access to the military, hospitals, prisons, and chaplaincies.

The horizontal scope of religious autonomy includes the core religious institution (church, synagogue, mosque) at both the congregational and at higher hierarchical levels where these are present.  It includes integrated sub-institutions, as well as affiliated institutions such as educational, media, healthcare and other charitable institutions.  It may also extend to for-profit institutions controlled by the religious community.  Religious autonomy also has a vertical dimension (more obvious in more hierarchical organizations, but evident in a smaller scale in single congregation communities).  This includes the religious officials and clergy, lay individuals carrying out teaching functions or other ministerial roles; and individuals carrying out support roles that have a more secular character.

The key recent cases in the religious autonomy domain have dealt with religious personnel.  The European Court of Human Rights sustained religious autonomy claims in a case involving termination of an upper level administrator responsible for public affairs for the Church of Jesus Christ of Latter-day Saints throughout Europe.  It reached the same result with respect to a school teacher who became an advocate for a church whose teachings were unacceptable to the religiously-affiliated school where she worked.  It reached a contrary result in a case involving the organist at a Catholic Church.  However, it was clear in the case that the German Courts had not taken a variety of pertinent considerations into account, and it is clearly possible that a subsequent case involving a worker so intimately involved in religious practice could go the other way if the full range of factors were taken into account.

The U.S. Supreme Court will hear oral arguments next month on a case involving the so-called ministerial exemption to anti-discrimination laws.  Precisely because it raises issues going to the core of religious autonomy doctrine, it has been characterized as one of the most significant religion clause cases to reach the U.S. Supreme Court in many years.  The stakes involved in the case have gone up since the lawyers representing the government in the case have decided to abandon the arguments that had been made in lower courts.  There the lawyers representing the dismissed school teach contended  that the ministerial exception was valid, but did not apply to the particular employee since she was only marginally involved in religious matters. Before the Supreme Court, the government lawyers now handling the case have decided to challenge the validity of the ministerial exception, even though it has been unanimously approved by all the federal appellate courts for a period going back forty years.  They now seek to apply the ruling in Employment Division v. Smith, that any neutral and general law overrides a free exercise claim, to the sphere of religious autonomy. Even in the Smith case, religious autonomy cases were distinguished from cases that pitted individual claims of conscience against general laws.  In effect, they are seeking to extend the erosion of standards of review into the religious autonomy domain.  This would substantially weaken what has hitherto (and rightly) been one of the strongest protections of the role of religion in society.



[1] Jonathan Sacks, “Reversing the Decay of London Undone,” Wall Street Journal, August 20, 2011.

[2] Id.

[3] Id.

[4] See, e.g., Deuteronomy 15:11 (“Thou shalt open thine hand wide unto thy brother, to thy poor, and to they needy”) (Judaism).  Christianity teaches its adherents to “Love thy neighbor as thyself.” Charity is the first of the Six Perfections in Buddhism, and giving alms is one of the Five Pillars of Islam.

[5] Arthur C. Brooks, “Religious Faith and Charitable Giving,” (Hoover Institution, October 2003).  Brooks defined as “religious” for this purpose those who attend religious services at least once a week (approximately 33% of those covered by the study), and those as secular (26%) who attended less than a few times per year.  Those who attended services occasionally (41%) were excluded from this particular comparison.

[6] Id.

[7] Id.

[8] Robert D. Putnam and David E. Campbell, American Grace:  How Religion Divides and Unites Us (Chapters 13 and 15; see also Appendix 2).

[9] Brian .J. Grim and Roger Finke, The Price of Freedom Denied (Cambridge University Press, 2011). The chart that follows appears in their book on page. 206.

[10] See R. Scott Appleby, The Ambivalence of the Sacred: Religion, Violence and Reconciliation (New York: Rowman and Littlefield, 2000).

Jack M. Balkin, Address at the Second Access to Knowledge Conference at Yale University:  Two Ideas for Access to Knowledge:  The Infrastructure of Free Expression and Margins of Appreciation (April 27, 2007), available at http://balkin .blogspot.com/2007/04/two-ideas-for-access-to-knowledge.html).

[12] See, e.g., Richard W. Garnett, “Do Churches Matter? Toward an Institutional Understanding of the Religion Clauses,” Villanova Law Review (2008) 53:273; Paul Horwitz, “Churches as First Amendment Institutions: Of Sovereignty and Spheres,” Harvard Civil Rights-Civil Liberties Law Review 44:79 (2009); Paul Horwitz, “Universities as First amendment Institutions:  Some Easy Answers and Hard Questions,” UCLA Law Review (2007) 54:1497; Frederick Schauer, “Principles, Institutions, and the First Amendment,” Harvard Law Review (1998) 112: 84.

[13] See, e.g., Berger, Peter L. and Richard J. Neuhaus. To Empower People: The Role of Mediating Institutions in Public Policy. Washington, D.C.: American Enterprise Institute for Public Policy Research, 1977.

[14] Horwitz, “Churches as First Amendment Institutions,” supra note 12, at 81-82; Paul Horwitz, “Three Faces of Deference,” Notre Dame Law Review (2008) 83:1061, 1142.

[15] Luke W. Goodrich, “The Health Care and Conscience Debate:  President Obama narrows Protections for Conscience,” Engage (April 2011) 12:114, citing Robin Fretwell Wilson, “Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context,” in Same Sex Marriage and Religious Liberty 90-91 (Douglas Laycock et al. eds. 2008) (summarizing state conscience protections). 

[16] See Hannah C. Smith, “New birth control requirements are a loss for conscience,” Deseret News, Aug. 9, 2011.

[17] Specifically, the interim regulations amend 45 C.F.R. part 147 as indicated.  The amendment was promulgated as part of interim final regulations effective August 1, 2011. Federal Register, Vol. 76, No. 149 (August 3, 2011/Rules and Regulations), 46621-46626.

[18] Ib

[19] Smith, supra note 28.

[20] 494 U.S. 872 (1990).

[21] For a more extensive treatment of these issues, see Bassett, Durham & Smith, Religious Organizations and the Law§ 2.66 (2010);.W. Cole Durham, Jr. and RobertT. Smith, Durham, Jr. and Robert T. Smith, “Religion and State in the United States at the Turn of the Twenty-First Century,” in Law and Religion in the 21st Century, Silvio Ferrari and Rinaldo Cristofori (Eds.), (Ashgate, Farnham, Surrey, United Kingdom, 2010).

[22] ECHR, art. 9(2).

[23] See U.N. Human Rights Committee, General Comment 22 (48), adopted by the U.N. Human Rights Committee on 20 July 1993. U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993),  reprinted in U.N. Doc. HRI/GEN/1/ Rev.1 at 35 (1994); Nolan and K v. Russia (ECtHR, App. No. 2512/04, 12 February 2009), § 73.

[24] See, e.g., Kokkinakis v. Greece, 17 EHRR 397 (A/26-A) (1994) (A/26-A) (ECtHR, App. No. 14307/88, 25 May 1993), § 49; Wingrove v. United Kingdom, 24 EHRR 1(1997) (ECtHR, App. No. 17419/90 25 November 1996), § 53; Manoussakis and Others v. Greece, 23 EHRR 387 (1997) (ECtHR, App. No. 18748/91, 26 September 1996), §§ 43-53; Serif v. Greece, 31 EHRR 20 (2001) (ECtHR, App. No. 38178/97, 14 December 1999), § 49; Metropolitan Church of Bessarabia v. Moldova, 35 EHRR 13 (2002) (ECtHR, App. No. 45701/99, 13 December 2001), § 119.

[25] Metropolitan Church of Bessarabia v. Moldova, 35 EHRR 13 (2002) (ECtHR, App. No. 45701/99, 13 December 2001), § 114.

[26] Id., § 116.

[27] Ibid., § 118; Manoussakis and Others v. Greece, 23 EHRR 387 (1997) (ECtHR, App. No. 18748/91, 29 August  1996), §§ 43-53.

[28] Metropolitan Church of Bessarabia v. Moldova, 35 EHRR 13 (2002) (ECtHR, App. No. 45701/99, 13 December 2001), § 118.

[29] United Nations Human Rights Committee General Comment No. 22 (48) (Article 18) Adopted by the U.N. Human Rights Committee on 20 July 1993. U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in U.N. Doc. HRI/GEN/1/ Rev.1 at 35 (1994), ¶ 8.

[30] Decision, Republic of Korea [2007] UNHRC 5; CCPR/C/88/D/1321-1322/2004 (23 January 2007) (U.N. HRC).

[31] ECtHR, App. No. 27417/95 (2000).

[32] See Douglas Laycock, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 244 (1994).

[33] The idea for the threefold erosion described here was stimulated by an address given by Michael K. Young, then President of the University of Utah, at Brigham Young University on February 4, 2011.  A copy is on file with the author.

[34] See Marta Cartabia, “The Challenges of “New Rights” and Militant Secularism,” Paper presented at the Pontifical Academy of Social Science, XVII Plenary Session (April 2011).

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