Individuals, Institutions, and Religious Freedom
Should our laws aim to protect the religious practices and beliefs of individuals or groups, or both? Are these ends at odds with one another? What sustains the free exercise of religion in the United States? On November 29 the Boisi Center hosted legal scholars Richard Garnett and Gregory Kalscheur, S.J. to address these questions in a lively forum on religious freedom. Garnett, a prolific scholar and legal commentator, is professor of law and associate dean for faculty research at the University of Notre Dame School of Law. He began by noting that “religious freedom is a human right, grounded in human dignity, essential for human flourishing.” The special protection the Constitution gives to religion is a recognition that religious freedom is “part of the very structure of a free society, not merely a grudging concession made by a tolerant sovereign.” Religious freedom protections aren’t accidents or anachronisms; they are “features, not bugs” in our laws.
Garnett argued that religious freedom is properly protected in this country by a secular government and its secular laws—not to marginalize religion but rather “to protect religious freedom in private, in public, in civil society and in politics.” Still, these stout legal protections are insufficient without a robust cultural commitment to religious freedom. Quoting Archbishop Charles Chaput, Garnett said that the Constitution is “just another elegant scrap of paper unless people keep it alive with their convictions and lived witness,”something Garnett said was under threat today.
Religious freedom is equally essential to individuals as it is to institutions, Garnett argued, and institutions have inherent rights to religious freedom that are not merely derivative of individual rights. Indeed, individual and institutional religious freedoms are complementary, not conflicting. If we reduce religious freedom to the individuals exercising it, we overlook the institutional contexts that shape individuals in society as well as the communal aspect of religious experience.
Boston College law professor and associate dean of arts & sciences Gregory Kalscheur, S.J. offered a response. Kalscheur agreed with Garnett’s account of religious freedom as intrinsic to both individuals and institutions, and strongly endorsed the Supreme Court’s recent decision in Hosanna Tabor, which maintained the rights of religious communities to hire and fire (without concern for employment discrimination laws) employees who perform religious functions.
What, then, are the limits of the church’s freedom from government interference? All human activity has an inherently religious dimension, Kalscheur argued, citing Jesuit Michael Buckley’s claim that “There is a religious density to all things.” But this does not mean all church activity should fall outside the realm of regulation. Kalscheur proposed that while “uniquely religious” activities should be exempt from scrutiny, “when the church embodies its religious mission through temporal education and social services activities that are not uniquely religious (though they are inherently religious), they are engaged in activity that the civil authority may have the jurisdiction to regulate.” When religious activity violates public order to a degree that intervention is required, the state should still honor the privileged character of religious freedom by interfering in the most minimal way possible, and thus upholding a culture of respect and tolerance.