'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense

Journal of Contemporary Legal Issues, (2013) Forthcoming

Notre Dame Legal Studies Paper No. 1334

44 Pages Posted: 23 Jul 2013  

Richard W. Garnett

Notre Dame Law School

Date Written: July 23, 2013

Abstract

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

Keywords: First Amendment, religious freedom, religious liberty, church-state separation, ministerial exception, church autonomy, Establishment Clause, Free Exercise Clause, pluralism, Investiture Crisis, First Amendment institutions

JEL Classification: K10 , K19, K39

Suggested Citation

Garnett, Richard W., 'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense (July 23, 2013). Journal of Contemporary Legal Issues, (2013) Forthcoming ; Notre Dame Legal Studies Paper No. 1334. Available at SSRN: https://ssrn.com/abstract=2297586

Richard W. Garnett (Contact Author)

Notre Dame Law School ( email )

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