Document Type

Working Paper

Publication Date

5-15-2013

SSRN Discipline

Legal Scholarship Network; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Cognitive Science Network; Anthropology & Archaeology Research Network

Abstract

This Article is part of a symposium issue titled Freedom of the Church in the Modern Era Freedom of the church roughly connotes the independent nature or sovereignty of the church The most dramatic moment in its development was the eleventh century Investiture Controversy with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa but it has a long prior and subsequent history Recently with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Courts decision affirming the ministerial exception doctrine in HosannaTabor Evangelical Lutheran Church and School v EEOC the idea of freedom of the church has taken on new champions and criticsThis Article from an author who has written supportively about freedom of the church andor religious institutionalism in prior work takes a deliberately unromantic look at freedom of the church It evaluates it through two useful disciplinary lenses history and the economics of religion Both historical and economic analysis of the concept of freedom of the church suggest the following conclusions 1 The concept should be treated carefully and with a full awareness of its mixed history without undue romanticism on the part of its champions or a confident conclusion on the part of its critics that it is no longer necessary 2 Whatever the concept of freedom of the church means today the present version is decidedly diminished and chastened a shadow of the medieval version Supporters of freedom of the church should welcome that fact Freedom of the church persists and may have continuing value precisely because it has become so domesticated 3 There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy In particular religions status as a credence good whose value and reliability is certified by religious agents such as ministers strongly suggests that state interference with religious employment relations can be dangerous to a churchs wellbeing and longterm survival 4 The history and economics of religion also teach us something about the optimal conditions for freedom of the church the conditions under which it is likely to do the most good and the least harm In particular they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong nonestablishment regime The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church including the possibility that its resurgence even if it is fully justified also involves an element of rentseeking by religious institutionsThere are two broader underlying suggestions as well First there are good reasons to support some version of freedom of the church but it deserves a more critical and nuanced examination by friends and adversaries alike Second legal scholars writing on churchstate issues have paid far too little attention to the literature on the economics of religion

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