Document Type

Working Paper

Publication Date

3-2-2013

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Political Theory eJournals; Social Insurance Research Network; Law School Research Papers - Legal Studies; AARN Subject Matter eJournals; Humanities Network; Political Science Network; Anthropology & Archaeology Research Network

Abstract

This piece is a reply to Richard Schragger and Micah Schwartzmans forthcoming article Against Religious Institutionalism The issue of the institutional status and rights of religious entities is an important and hot topic given recent cases like HosannaTabor pending controversies over the application of the contraceptive mandate and a spate of recent scholarship arguing for church autonomy andor the revival of the ancient concept of freedom of the church Schragger and Schwartzman raise a number of tough questions about institutionalism both in general and as it applies to churches This reply offers a partial but forceful defense of institutionalism in the church context and elsewhereSchragger and Schwartzman make some excellent points in their important article In particular they ask difficult questions about whether group rights stand on their own or are purely derived from individual rights and sound an appropriate if overly stringent note of caution about sovereignty talk with respect to religious institutions Nevertheless they have not made out a conclusive case against religious institutionalism In this reply I offer a description of the institutionalist approach I have advocated for churches and other entities in my recent book First Amendment Institutions and argue that many of Schragger and Schwartzmans critiques of religious institutionalism dont apply to it Schragger and Schwartzman argue that religious institutionalism is unnecessary because general principle of conscience and associational rights will be sufficient to protect consciencebased associations including churches Because they remain noncommittal about the actual scope of conscience and associational rights however they have not yet shown that this is true Finally I argue that Schragger and Schwartzman do not give an adequate sense of why religious institutionalists and grouporiented pluralists in general find the institutional turn attractive why these thinkers are convinced of the importance of nonstate institutions and concerned about the pulverizing macadamizing tendency of the state toward those institutions Those concerns remain very much alive and as long as they do pluralism and institutionalism ought to have a place in our thinking

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