'Religious Structures Under the Federal Constitution' and 'Religiously Affiliated Education' in Religious Organizations in the United States: A Study of Identity, Liberty, and Law
Thomas C. Berg
University of St. Thomas, St. Paul/Minneapolis, MN - School of Law
University of St. Thomas Legal Studies Research Paper No. 07-10
RELIGIOUS ORGANIZATIONS IN THE UNITED STATES: A STUDY OF IDENTITY, LIBERTY, AND LAW, James Serritella, Thomas Berg, Cole Durham, Edward Gaffney, Craig Mousin, eds., Carolina Academic Press, 2006
These two chapters are part of a multi-chapter, multi-contributor treatise on the law as it affects the autonomy and identity of religious organizations. Chapters in the treatise range from discussions of theological views of religious organizational structures, or polities, to the practical details of how religious organizations are affected by tax, employment, education, health-care, and other regulation. The chapter on Religious Structures and the Federal Constitution discusses the effect of federal constitutional rules on religious organizations' decisions about how to structure their affairs, from formal legal structure to the myriad of other organizational decisions affected by regulation or government funding. The chapter first presents a case for religious organizational autonomy, and then discusses the extent to which legal treatment of different religious institutions - both in regulation and in government funding - can differ according to the institution's organizational structure. The chapter on Religiously Affiliated Education first sets forth a number of models for the ideal relationship between government and religious education, including models favoring secular common schools, favoring a plurality of institutions for delivering education, favoring a separation in which government is limited both in regulating and funding religious education, and favoring generally equal treatment of religious and secular schools. With these models as background, the chapter examines the range of regulations on religious schools (elementary, secondary, and colleges/universities) and how regulation varies according to the school's effect on the broader society, its degree of religiosity, and its organizational structure, as well as the degree of interference that regulation would cause. The chapter makes recommendations for preserving religious schools' ability to maintain their identity in areas such as the scope of academic freedom, decisions about employment, and others.
Keywords: Religious liberty, religious organizations, religious education, private education, First Amendment, Free Exercise Clause, Establishment ClauseAccepted Paper Series
Date posted: April 13, 2007
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