14 Pages Posted: 2 Mar 2013 Last revised: 3 Apr 2013
Date Written: March 1, 2013
This piece is a reply to Richard Schragger and Micah Schwartzman's 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 Hosanna-Tabor, pending controversies over the application of the contraceptive mandate, and a spate of recent scholarship arguing for church autonomy and/or 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 elsewhere.
Schragger 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 Schwartzman's critiques of religious institutionalism don't 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 conscience-based 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 group-oriented pluralists in general, find the institutional turn attractive: why these thinkers are convinced of the importance of non-state 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.
Suggested Citation: Suggested Citation
Horwitz, Paul, Defending (Religious) Institutionalism (March 1, 2013). Virginia Law Review, Forthcoming; U of Alabama Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2226962