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)
22 Pages Posted: 23 Dec 2015
Date Written: December 22, 2015
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
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