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

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

Notre Dame Legal Studies Paper No. 1528

24 Pages Posted: 8 Oct 2015  

Richard W. Garnett

Notre Dame Law School

Date Written: October 6, 2015

Abstract

This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. 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 responds to several leading lines of criticism and 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: Religious Freedom, Hobby Lobby, Hosanna-Tabor, ministerial exception, First Amendment, religious liberty, church autonomy

JEL Classification: K10, K19

Suggested Citation

Garnett, Richard W., The Freedom of the Church: (Toward) an Exposition, Translation, and Defense (October 6, 2015). Micah Schwartzman, Chad Flands, and Zoe Robinson, eds., The Rise of Corporate Religious Liberty (Oxford University Press, 2015), Forthcoming; Notre Dame Legal Studies Paper No. 1528. Available at SSRN: https://ssrn.com/abstract=2670144

Richard Garnett (Contact Author)

Notre Dame Law School ( email )

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P.O. Box 780
Notre Dame, IN 46556-0780
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574-631-4197 (Fax)

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