Religious Institutionalism — Why Now?

in The Rise of Corporate Religious Liberty: Hobby Lobby and the New Law of Religion in America 207 (Micah Schwartzman et al., eds. 2015)

Brooklyn Law School, Legal Studies Paper No. 429

22 Pages Posted: 23 Dec 2015  

Nelson Tebbe

Brooklyn Law School; Cornell Law School

Paul Horwitz

University of Alabama School of Law

Date Written: December 22, 2015

Abstract

The recent rise of religious institutionalism in Supreme Court doctrine presents a puzzle. After all, the Court has been emphasizing groups at exactly the same moment when social scientists have been showing that Americans are disaffiliating from religious organizations at a rapid rate. What explains this apparent tension? We argue that multiple factors contribute in complex ways to the rise of group rights of religious freedom. But we also tentatively suggest an overarching theme. Once it is appreciated that religious disaffiliation is happening chiefly among those on the left of the political spectrum, it becomes possible to hypothesize that lawyers’ focus on groups and institutions reflects a countervailing impulse among religious traditionalists. If that is correct, then the rise of group rights of religion is happening alongside, not despite, religious disaffiliation. The two developments are aspects of a general phenomenon of polarization on questions of religious freedom.

Keywords: religious freedom, free exercise, establishment clause, Hobby Lobby, first amendment

Suggested Citation

Tebbe, Nelson and Horwitz, Paul, Religious Institutionalism — Why Now? (December 22, 2015). in The Rise of Corporate Religious Liberty: Hobby Lobby and the New Law of Religion in America 207 (Micah Schwartzman et al., eds. 2015) ; Brooklyn Law School, Legal Studies Paper No. 429. Available at SSRN: https://ssrn.com/abstract=2707198

Nelson Tebbe (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718.780.7960 (Phone)

Cornell Law School ( email )

Paul Horwitz

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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