September 17 marked the two-hundred-twenty-seventh anniversary of the signing of the US Constitution. No part of this document has occasioned more contemporary comment than the religious clause of the First Amendment. This week, Cornerstone contributors debate the following questions: To what extent were the free exercise and non-establishment clauses intended to protect faith-based associations or for-profit corporations as opposed to individuals?

By: Richard Garnett

“Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” 

“Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions.*  

Still, there is no denying that Americans’ thinking and talking about rights—including the right to religious freedom—is thoroughly individualistic. (This fact is illustrated by the frequency with which commentators have suggested that it should have been relevant to the Supreme Court’s recent Hobby Lobby decision that “corporations don’t have souls and can’t have faith.”) In one of our tradition’s most famous religious-liberty texts, James Madison’s Memorial and Remonstrance Against Religious Assessments (1785), the “Father of Our Constitution” insisted that “[t]he Religion . . .of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. . . . It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.”   

It is not surprising, then, that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices. (Again, much of the debate surrounding the Hobby Lobbycase, and the litigation over the preventive-services mandate more generally, seems to have swirled around the question whether it is possible for “corporations” to have religious-liberty rights or to exercise religious freedom.) But, as Mary Ann Glendon demonstrated almost twenty years ago in Rights Talk (1993), her compelling critique of American political discourse and the legal regime it reflects and produces, this focus is myopic and potentially distorting. The point, again, is not that it is wrong to say “religion is an individual experience”; it is simply that it is not enough. Speaking and thinking—and arguing and deciding cases—in this way can cause us to overlook things that matter, including the contexts and relationships in which people are situated and formed. 

Just one example: To many, St. Thomas More is a religious freedom hero. As he is depicted in A Man for All Seasons, anyway, he fits the approved profile. The lone religious dissenter, courageously confronting overbearing officials or extravagant assertions of state power, armed only with claims of conscience, is evocative and timeless. (Some might say the same of the dissenters he helped to persecute.) No account of religious freedom would be complete if it neglected such clashes or failed to celebrate such courage. But, if we could ask St. Thomas, he would insist that the “religious liberty” he was exercising, and the “religion” for which he was killed, was not something he constructed or concocted on his own. He attached himself to the authority of a particular role, community, and tradition, and he took the dissenting side in an argument not about his own preferences but about the nature of a sacrament. The clash in A Man for All Seasons—the real version, anyway—is not only between the will and ambition of King Henry, on the one hand, and the autonomy and integrity of St. Thomas, on the other. It is also between contesting institutions and authorities. (We could re-tell, in a similar way, the story of the Yoder case and the clash between Wisconsin’s education rules and the practices of the Old Order Amish.)      

Something goes missing when the freedom of religion is reduced to the individual’s liberty of conscience, to her freedom of belief, or even to her right to engage in worship or religiously motivated action. A legal regime of human rights that is designed to protect only this reduced notion of religious freedom will leave vulnerable and unprotected important aspects of that freedom. And, there is reason for concern about the contemporary vulnerability of religious institutions’ freedom. “[T]he preservation”, I have suggested elsewhere, “of the churches’ moral and legal right to govern themselves in accord with their own norms and in response to their own calling is our day’s most pressing religious freedom challenge.”  

Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace, churches have the right to select the ministers they will ordain. In the coming years, it is likely that significant and increasing pressure will be brought to bear on religious institutions to assimilate their practices—especially when they engage in supposedly “secular” activities like caring for the sick, teaching the young, and assisting the poor—to those of the state. The cost to authentic freedom, and to pluralism, and to justice will—if this pressure is successful—be significant. 

* I have tried to develop this point in some of my academic writing. See, for example: Richard W. Garnett, “Religion and Group Rights: Are Churches (Just) Like the Boy Scouts?”, 22 St. John’s J. Legal Comment. 515 (2007); Richard W. Garnett, “The Freedom of the Church”, 4 J. Cath. Soc. Thought 59 (2007); Richard W. Garnett, “Church, State, and the Practice of Love”, 52 Vill. L. Rev. 281 (2007).

Richard Garnett is Associate Dean for Faculty Research and Professor of Law and Concurrent Professor of Political Science at the University of Notre Dame Law School. 

This piece was originally authored on September 25, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.