In 1991, Mary Ann Glendon and Raul Yanes published an article called “Structural Free Exercise” in the Michigan Law Review. This article—which I read as a law student in the early 1990s and to which I have returned many times—was and still is among the most insightful explorations and explanations of our religious freedom protected by the First Amendment.
The problem Glendon and Yanes identified—namely, that an excessively expansive (and ahistorical) understanding of the establishment of religion and an unduly narrow understanding of religious exercise combine to compress and constrict the freedom of religion—was and still is real and pressing. And their response—the claim that a “holistic, structural approach to the text is necessary [for] a workable, coherent, church-state jurisprudence for our pluralistic, liberal, democratic society”—was and still is compelling. I have, in my own work, tried to develop and elaborate upon it. And, at least in some respects, it appears that the Supreme Court might be coming around, too.
Glendon expanded on this argument in her outstanding monograph Rights Talk: The Impoverishment of Political Discourse (published that same year). The Court and too many commentators, she argued, have recast freedom of religion in entirely individualistic terms, and the religious liberty dynamic has been framed entirely as a contest between the interests of the state and those of the solitary rights-bearer.
Missing from this binary dynamic, this bare landscape, is any meaningful idea of the social and of civil society, plural authorities, and the freedoms that are properly enjoyed by groups, communities, and associations. The freedom-protecting and flourishing-enabling distinction between religious and political authority has long and rightly been an important goal in the constitutional history of the West. Now, however, it is confused with a “wall of separation” between “religion” and “politics,” between the “public” and the “private.” And the “free exercise” of religion is seen as a function less of the moral limits on state action than of the extent to which private “conscience” can be accommodated without too much cost or inconvenience to the political authority and its projects. This diagnosis was and remains sound.
In the concluding sections of their paper, Glendon and Yanes proposed a “new approach” that they call “structural free exercise”:
We use the word structural in an organic . . . sense to refer to the relations within and among texts, and between legal and social institutions. The structural approach situates the religion language within its historical and literary context. It takes into consideration the institutional and associational, as well as the individual, aspects of religious freedom. It is informed by an awareness of the role of America’s religions in the cultural foundations of the democratic experiment.
Further, they noted, a “holistic reading thus suggests that individual free exercise cannot be treated in isolation from the need of religious associations and their members for a protected sphere within which they can provide for the definition, development, and transmission of their own beliefs and practices.”
This proposal and approach have influenced and informed my own efforts. I have suggested that the “separation of church and state,” correctly understood, denotes a structural arrangement involving institutions, a constitutional order in which the institutions of religion are distinct from, other than, and meaningfully independent of the institutions of government. So understood, “separation” is a principle of pluralism, of multiple and overlapping authorities, of competing loyalties and demands. It is a rule that limits the state and thereby clears out and protects a social space within which persons are formed and educated and without which the liberty of conscience is vulnerable.
Within this structural arrangement, i.e., church-state “separation,” religious institutions and communities both contribute to and benefit from the enterprise of organizing and limiting political power. What John Courtney Murray (and Pope Gregory VII before him) called “the freedom of the Church” is both a structural feature of social and political life—one that promotes and enhances freedom by limiting government—and a moral right to be enjoyed by religious communities. It is not simply an effect or implication of private, individual claims to freedom of conscience and immunity from government coercion in matters of religious belief. Rather, as Murray argued in We Hold These Truths, the immunity of conscience from coercion in religious matters depends on, and is nourished by, church autonomy.
Thus, the relationship between the enterprise of protecting human rights and religious communities’ right to self-determination is a mutually reinforcing one. Human rights law, in other words, protects church autonomy. It protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, orthodoxy, and so on. In turn, church autonomy promotes the enjoyment and exercise of human rights.
Yet, as Glendon showed us in Rights Talk, the nature of this dynamic is often misunderstood or distorted.
In fact, constitutionalism depends for its success on the existence and activities of non-state authorities. It should protect, but it also requires, self-governing religious communities that operate and evolve outside and independent of governments. It is a mistake to regard “religion” merely as a private practice, or even as a social phenomenon, to which constitutions respond or react. Instead, the ongoing enterprise of constitutionalism is one to which religious freedom contributes. Human rights depend for protection and flourishing not only on enforceable constraints on government but also on the structure of the social order. With respect to matters of polity, doctrine, leadership, and membership, the autonomy that religious institutions enjoy simultaneously contributes to and benefits from that structure.
As Jack Balkin has noted, the freedom of speech cherished by most Americans requires “more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it].” That is, certain institutions—newspapers, political parties, interest groups, libraries, universities, and so on—play an important structural, or infrastructural, role in clearing out and protecting the civil society space within which the freedom of speech can be well exercised.
The same thing can be said about religious freedom. Just as freedom of speech depends on an infrastructure of free expression, freedom of religion depends on an infrastructure of religious freedom. Part of this infrastructure—in addition to its more obvious components, such as open and functioning courts, legal accommodations, and thriving communications networks—is a web of independent, thriving, and distinctive institutions that are self-governing in their appropriate spheres. Today, though, the infrastructure on which authentic freedom under law depends is neglected, under stress, and vulnerable.
Glendon described various causes and manifestations of this vulnerability recently, at Emory University, in her Harold J. Berman lecture, “Religious Freedom—A Second-Class Right?” There, as she has throughout her consequential and crucial scholarly career, she warned of the dangers that attend the increasingly powerful drive to reduce churches to voluntary associations of individuals, to reduce religious freedom to a consequence-free and manifestation-free right of private belief, and to impose on religious and other non-state institutions the same liberal “nondiscrimination” rules that (appropriately) apply to governments.
As she noted, “Our legal system’s neglect of the associational and institutional dimensions of religious freedom . . . seems to be accelerating.” The controversy involving the so-called “HHS mandate,” requirements that pharmacists provide the “morning-after pill,” and demands that Catholic adoption agencies place children with same-sex couples can and should be seen as examples of this neglect. And, “Structural Free Exercise” still points the way back.
Richard Garnett is Professor of Law and the Director of the Program on Church, State & Society at Notre Dame Law School.