Freedom of the Church and Our Endangered Civil Rights: Exiting the Social Contract

The Rise of Corporate Religious Liberty, Zoe Robinson, Chad Flanders and Micah Schwartzman, eds., Oxford University Press, 2015, Forthcoming

32 Pages Posted: 21 Apr 2015

See all articles by Robin L. West

Robin L. West

Georgetown University Law Center

Date Written: 2015

Abstract

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.

Keywords: exit rights, freedom of the church, social contracts, privacy rights

JEL Classification: K00, K30, K39

Suggested Citation

West, Robin L., Freedom of the Church and Our Endangered Civil Rights: Exiting the Social Contract (2015). The Rise of Corporate Religious Liberty, Zoe Robinson, Chad Flanders and Micah Schwartzman, eds., Oxford University Press, 2015, Forthcoming . Available at SSRN: https://ssrn.com/abstract=2595663

Robin L. West (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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