Political Secularism and Religious Institutionalism: Justice and Jurisdiction. François Boucher, UQAM

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1 Political Secularism and Religious Institutionalism: Justice and Jurisdiction François Boucher, UQAM Abstract Standard liberal accounts of political secularism assert that individual believers should be accommodated within shared public institutions. However, many claims based on religious freedom insist on the collective and institutional dimensions of religion. Hence, religious institutionalists claim that freedom of religion requires that each religious community be allowed to set up its own pervasively religious institutions operating according to religious norms that depart from the liberal standards at work in the secular state. In this article, I discuss two different arguments purporting to support religious institutionalism. The first claims that treating believers as equal citizens requires the adoption of a framework of religious institutional pluralism. The second claims that religious institutional pluralism is the only way to respect the principle of church autonomy, which asserts that religious organizations should enjoy jurisdictional authority over matters of internal governance. I argue that the argument from equality is mistaken. I also argue that although certain strong accounts of church autonomy are incompatible with liberalism and political secularism, it is possible to sketch a moderate conception of church autonomy consistent with liberal political secularism. 1

2 I Secularism and Religious Institutional Pluralism George Jacob Holyoake popularized the term secularism in the English language in the 19 th century. He claimed that: Secularism is a code of duties pertaining to this life founded on considerations purely human, and intended mainly for those who find theology indefinite or inadequate, unreliable or unbelievable. Its essential principles are three: (1) The improvement of this life by material means. (2) That science is the available Providence of man. (3) That it is good to do good. Whether there be other good or not, the good of the present life is good, and it is good to seek that good.1 This view represents secularism as what Rawls calls a comprehensive doctrine.2 It asserts that secularism offers answers to a broad range of fundamental questions about the nature of the universe and about how one should lead his life. What Holyoake described can thus be labelled ethical secularism. This paper focuses on a different understanding of secularism. I suggest that it is possible, and quite useful, to view secularism as a political doctrine and not as a metaphysical or ethical one. Political secularism asserts that public institutions and public policies should not be justified by appealing to the view that one religion is superior to the others, or that religion is superior to irreligion, or that irreligion is superior to religion. In this view, a secular state 1 Holyoake, George J., English Secularism (Chicago: Open Court, 1896), p. 60, quoted in Dacey 2008, Rawls,

3 appeals to strictly political ideals such as freedom of conscience, equal treatment of all individuals and the goal of promoting social cohesion and peaceful coexistence between the adherents of different faiths and non-believers. The subject of political secularism is not individual conduct and the meaning of human life but rather the relation between the state and religion and the place of religion in the public square. Political secularism is the view that there should be a separation between religion and politics at least at level of the justifications of public institutions and policies. Thus, political secularism is committed to a principle of neutral public justification3 and aims at respecting something akin to John Rawls s principle of liberal legitimacy asserting that: [the] exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason 4. Political secularism is the target of many criticisms. For instance, some argue that a secular public sphere illegitimately excludes religious viewpoints from public deliberations,5 others maintain that secularism is merely an ideological discourse that hides privileges and accommodations granted to the religious majorities of Western countries while drawing on the notion of the separation between state and religion to deny the same privileges and accommodations to immigrant religious minorities.6 Those objections may be legitimately levelled against certain (mis)conceptions of secularism. For instance, a 3 Audi, 2011, 66-70; Maclure and Taylor 2011, 10-18; Laborde Rawls 1993, 137, Weithman 2002; Wolstertorff 1997, Smith Bader

4 certain strand of republican thought in France construes secularism as requiring the nonrecognition of any intermediary religious association as well as the privatization of expressions of religious beliefs so as to protect the neutral character of the public sphere and of public institutions.7 However, it is far from clear that charges of unfairness towards new religious minorities and of exclusions of the religious from the public sphere threaten liberal conceptions of political secularism. Indeed, several political philosophers claim that religious diversity can and should be accommodated within secular public institutions. Those philosophers argue that the point of religious neutrality and of the separation between state and religion is to ensure that believers of all faiths and non-believers are given equal consideration and that every citizen is free to live according to her reasonable religious or non-religious conception of the good.8 This position often labelled open or liberal-pluralist secularism allows individuals to express their religious identity while partaking to public life. It maintains that neutrality and the separation of religion and the state are instruments for the achieving of the goals of treating all citizens equally and of respecting freedom of conscience.9 In this paper, I shall take for granted the view that open or liberal secularism can accommodate individual believers within shared public secular institutions. I will, however, address a deeper critique of political secularism according to which what is really at stake in the most controversial contemporary disputes over the terms of the separation between state and religion is not merely the fair inclusion of believers in shared public 7 Kintzler 2007; Pena-Ruiz Nussbaum 2008; Audi 2011; Maclure and Taylor Maclure and Taylor

5 secular institutions but, primarily, the protection of the autonomy of churches and religious organizations against the intrusions of the secular state. This sort of criticism claims that the framework of political secularism cannot properly deal with the collective and institutional dimensions of religious freedom. Religious freedom, it is argued, is not only a matter of individual rights; it also requires the recognition and protection of group rights held by religious organizations and enforceable against individuals. Underlying this view is the claim that political secularism offers of a framework of accommodation (fair inclusion within shared public institutions) whereas truly respecting religious freedom demands the adoption of a framework of group pluralism or group autonomy which recognizes the independent authority of religious organizations as well as their right to selfregulate themselves according to their own norms.10 In this view, called the new religious institutionalism, religious freedom is the freedom of church, as Steven Smith argues, and the rights entailed by religious freedom are institutional rights held by churches, religious organizations and organizations owned by believers. Religious institutionalism claims that political secularism should be replaced by a framework of religious institutional pluralism by which each religious community is allowed to set up its own pervasively religious institutions which operate according to religious norms which depart from the liberal standards at work in the secular state. I will assess two arguments purporting to justify religious institutional pluralism. I will claim that the first argument, which draws on the notions that believers should be treated as equal citizens, fails to support religious institutional pluralism. I will claim that the second 10 For the distinction between accommodation and group pluralism, see Eisenberg

6 argument, which draws on the notion of church autonomy, offers a more plausible justification for a limited form of religious institutional pluralism and that such a moderate conception of church autonomy is not incompatible with political secularism. I will also argue that recent proponents of religious institutional pluralism and church autonomy, such as Steven Smith and Patrick Brennan,11 as well as their critics, such as Jean L. Cohen, Micah Schwartzman and Richard Schragger,12 have focused too much on a radical strand of unrestricted religious institutional pluralism which rests on a theological account of church autonomy, thus obscuring the potential compatibility between political secularism and church autonomy. II Two Kinds of Arguments for Religious Institutional Pluralism: From Justice to Jurisdiction A framework of religious pluralism and institutional autonomy asserts that communities of faith can set up their own institutions for the delivery of spiritual goods (churches and other places of worship) and of social services (hospitals, schools, universities, soup kitchens, care for the elderly and so on). Such institutions are not only separate from secular public institutions, they also pursue religious purposes, operate in accordance with religious standards and have a religious ethos.13 For instance, the American legal scholar Michael McConnell, a prominent proponent of this view, claims 11 Brennan 2013; Smith Cohen 2015; Schwartzman and Schragger 2013a; 2013b. 13 Shorten

7 that the pluralist approach encourages communities of conscience to preserve the institutions necessary to perpetuate their distinctive ways of life and to pass these on to future generations. 14 The goal of institutionalized religious pluralism is to allow a range of choice so that those who wish to educate their children, receive their medical care, or participate in public programs in a manner consistent with their faith can do so 15. The most challenging and controversial question raised by religious institutional pluralism is whether and to which extent religious organizations ought to be exempted from valid general laws and regulations in order to enable them to fulfill their religious mission and to preserve their distinct religious character. Many worry that allowing religious organizations to function according to their own religious standards threatens the basic commitments to freedom and equality central to liberal democracy. They claim that institutional exemptions aiming securing group autonomy for religious communities, as opposed to individual exemptions designed to protect religious minorities from discrimination within mainstream public institutions, are not harmless exemptions to the law as they significantly burden individuals. Moreover, it is said, such exemptions require the state to relinquish its sovereignty and competence to regulate key areas of public and social life such as health, education and employment.16 Those worries are legitimate and quite understandable. They ought to be taken seriously. For instance, recent decisions by the American Supreme Court have significantly broadened the capacity of religious organizations to make discrimination in employment, 14 McConnell, 2000a, Ibid. 16 Cohen

8 which is otherwise forbidden under Title VII of the Civil Rights Acts. They have also significantly broadened the definition of what count as a religious organization entitled to constitutional protection from the interference of the secular state to the point that today even certain for-profit corporations owned by religious persons have First Amendment rights. It is quite benign to allow religious organizations and religious schools to select their priests, rabbi or imams and religious teachers according to their own religious criteria. Those positions are obviously central to fulfillment of the religious ends of those institutions and allowing religious organizations to appoint ministers or religious teachers on the basis of religious criteria does not significantly affect the job opportunities of nonbelievers. However, the Supreme Court has allowed religious organizations to make discrimination in employment for positions which are not so obviously central to their mission and to discriminate on the basis of non-religious criteria. In 1987, in the Amos decision, the Court ruled that religious organizations were exempted from employment regulations forbidding discrimination and could operate discrimination in employment on religious grounds.17 The Court ruled that a non-profit Mormon-run gymnasium could fire a janitor for failing to comply with the requirement of attendance at Mormon temples. More recently, in 2012, the Court went further in the Hosanna-Tabor decision and argued that church autonomy allowed a religious school to fire a teacher who was not teaching religious subjects on non-religious grounds (the employee was fired after taking a leave of 17 Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). 8

9 absence for medical reasons).18 Institutional exemptions have also been granted to shield organizations owned by believers from civil laws related to other areas of policy-making than employment regulations. In the recent and very controversial Hobby-Lobby decision, the Court allowed three for-profit corporations held by religious persons to be exempted from the dispositions of the Affordable Care Act requiring employers to provide coverage for contraceptives in the health insurance plan they are obliged to offer to their employees.19 Of course, religious institutional rights are not only recognized by American courts. In a recent judgment, the Supreme Court of Canada maintained that a private religious school could be exempted from a provincial law requiring all schools to teach a course of ethics and religious culture entirely from a secular point of view, allowing the school to teach certain components of the course from a Catholic point of view.20 The subject of religious freedom in this decision was the school itself and not just the parents of children attending the school. I will address two different kinds of arguments purporting to support religious institutional pluralism. The first kind of argument draws on the liberal democratic (and secular) commitment to equality. It claims that treating believers as equal citizens requires, as a matter of justice, to embrace religious institutional pluralism. This position has been developed by Michael McConnell and John Tomasi.21 It claims that secular public 18 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. (2012). 19 Burwell v. Hobby Lobby, 573 U.S. (2014) 20 Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R McConnell 2000a and Tomasi

10 institutions impose an unfair burden upon believers who cannot receive services in a way that reflects their deepest convictions as well as in spaces that have a religious ethos that suits their religious inclinations whereas secular public institutions provide a non-religious ethos and deliver services in ways which completely satisfy the preferences and inclinations of unbelievers. I will argue that the claim that secular public institutions impose such an unfair burden onto believers is mistaken (section III). The second kind of argument represents a deeper challenge to the liberal secular state. It claims that religious institutional pluralism should be embraced not out of a commitment to the values of liberal democratic constitutionalism, but precisely to shield religious organizations from the intrusions of the liberal state. As Jean L. Cohen notes, arguments of this kind shift the problematic from justice to jurisdiction.22 What is at stake, according to this second line of argumentation, is not so much the kind of protection the state ought to grant to citizens vulnerable to discrimination but rather the recognition that the modern state is not the only valid source of authority and that organized religions should be treated as self-governing and sovereign entities immune from state interference. Steven D. Smith thus claims that the point of the religion clauses of the First Amendment to the U.S. Constitution should be understood as being about freedom of the church and not about freedom of religion.23 This means that the separation of state and religion should carve out a space of autonomy for churches and religious organizations which leaves them as sovereigns in certain spheres of activity essential to the pursuit of their religious ends. Churches and religious organizations, accordingly, should be viewed as analogous to 22 Cohen 2015, Smith 2011, 1. 10

11 foreign embassies24 or to the federated states of federations.25 I will reject the particularly strong version of church autonomy defended by Smith and others because it relies on a theological account of the sources of legal and political authority and I will claim that a more moderate defence of church autonomy is available and that it is compatible with political secularism (section IV). I will also claim that this moderate defence of church autonomy does not entail that religious organizations should be granted special legal protection not extended to non-religious organizations and that religious organizations should be seen as sovereign institutions (section V). In doing so, my aim is not so much to propose a fully-fledged theory of church autonomy within the secular liberal state, but rather to highlight the plausible public reasons in support of a moderate conception of church autonomy. III Justice: Believers as Equal Citizens and the Secular Bias of Public Institutions One argument put forth to support of religious institutional pluralism, claims that religious liberty cannot be fully accommodated within shared public secular institutions. Veit Bader, Matthew McConnell and John Tomasi, among others, have made this sort of argument in support of religious institutional pluralism.26 Call this the argument of the secular bias of public institutions. It claims that treating believers as equal citizens requires more than a framework of religious accommodation (within inclusive shared secular institutions), it 24 Ibid., Clark Bader 2007; Tomasi 2004; McConnell 1992, 2000a. 11

12 requires the adoption of a framework of religious institutional pluralism. In this section, I will oppose this conclusion after summarizing the secular bias of public institutions argument. As the welfare state expanded during the second half of the twentieth century, it became the main actor for delivering services in domains which had traditionally been occupied almost entirely by religious organizations. Governmental organizations became the primary providers of education, healthcare and care to the very poor, the elderly and the homeless. As McConnell points out, this expansion of the reach of government institutions in the life of individuals and in the associations they form is correlated with increasing tensions between religion and the state.27 Why is there a tension between religious liberty and the provision by the secular state of services which have in appearance nothing to do with religious worship? Religious critics of governmental services delivered by public institutions claim that these have a secularist bias because they evacuate the religious perspective (that is, the pursuit of religious objectives, the compliance with religious norms and the maintenance of a religious ethos). Those public institutions must deliver services in areas such as healthcare and education in a way that is compatible with the fact of value pluralism in modern societies. To treat everyone equally, those public institutions must avoid delivering those services in ways that promote one particular worldview or that excludes certain worldviews. Universities cannot refuse to accept gays and lesbian students, hospitals cannot tell women that taking oral contraceptives is a sin, and public schools cannot teach 27 Mcconnell 2000a,

13 that god does or does not exist. In a pluralist society, public institutions must remain neutral with regard to religious questions. Those institutions must be secular (in the political and not metaphysical sense of secularism). This commitment to neutrality, it is said, imposes an unfair burden onto religious citizens which is not imposed on non-believers whose nonreligious worldview is, allegedly, better reflected by secular public institutions. Fairness and equal concern for religious citizens thus requires that the state allow (and perhaps provide funding to) religious communities to set up their own separate institutions for the delivery of social goods in ways that cohere with their religious inclinations. Those religious institutions may operate with standards that are at odds with the commitment of (secular) liberal democracy, but allowing them to depart from those standards is precisely what needs to be done to respect religious liberty. McConnell raises this sort of charge against all kinds of non-religious governmental programs. He claims that public institutions which pretend to be neutral because they do not promote any sectarian (religious) position are in fact based on secular, relativist Enlightenment values and have a deeply embedded preference for some modes of reasoning and ways of life over others rationalism and choice over tradition and conscience.28 According to this view, without granting believers the possibility to access non-governmental programs run by religious organizations, the government becomes a relentless agent of secularization. Focusing on non-religious public schools, McConnell puts forth the ideological argument for the public funding of religious schools. This ideological argument asserts that public schools transmit a particular worldview, they 28 Ibid

14 propagate an ideology which suits well the tastes of secular liberals through a Rainbow Curriculum based on a vaguely leftist stew of environmentalism, moral relativism and race and gender egalitarianism.29 According to him, given the secularist bias of public institutions and given that the government should enable people of all religious persuasions to be citizens of the commonwealth with the least possible violence to their religious convictions, the government should fund faith-saturated social services in order to allow a range of choice so that those who wish to educate their children, receive their medical care, or participate in public programs in a manner consistent with their faith can do so.30 Critics of non-religious public services argue that this secularist bias of public institutions undermines the neutrality of public services because it imposes a special burden on the liberty of religious citizens. In a society where the state plays an extensive role in the delivery of social services, the worth of the liberty of religious citizens is diminished.31 Although their formal liberty of religion is recognized, their capacity to advance their religious ends is unequal compared to non-believers capacity to advance their secular ends.32 To remedy this situation of unequal worth of basic liberties, government should 29 McConnell 1999, McConnell 2000a, 103, Tomasi 2004, Rawls defends the worth of liberty as the capacity one has to pursue its conception of the good: liberty and the worth of liberty are distinguished as follows: liberty is represented by the complete system of the liberties of equal citizenship, while the worth of liberty to persons and groups is proportional to their capacity to advance their ends within the framework the system defines (Rawls 1971, 204). 14

15 seek to minimize the extent to which it prevents religious citizens from advancing their religious ends by funding their own organizations providing religiously oriented social services.33 This is the only way in which the provision of social services by government can be neutral. As John Tomasi puts it: neutrality (...) is a property that can only be discerned by examining the system as a whole. In a social world committed to treating citizens of faith and secular non-believers as full political equals, a public system that mandates that none of its delivery sites may include religious perspectives would fail this test of neutrality. 34 Neutrality cannot be achieved by subtraction, only by multiplication: governmental organizations which attempt to be stripped of any religious influence end up being pro-secular in a sectarian way, so that the only solution is to pluralize the public system by allocating public resources to organizations delivering services from a religious perspective.35 The secularist bias argument for the publicly funded provision of religious social services is misleading because it is caught in an inescapable dilemma. Its proponents must either embrace an implausible interpretation of the meaning of the secular character of governmental institutions or a very problematic conception of neutrality. Secular public services would indeed be biased in a way that is unfair to religious citizens if they were directly promoting irreligion and if they were aiming at convincing users to abandon their religious beliefs. But the claim that there is a link of necessity between secularism and this attitude towards religion is based on confusion of the secular 33 McConnell 2000a, 105; Bader ; Tomasi, Tomasi 2004, McConnell 2000a, 105; Bader

16 understood as a comprehensive doctrine and the secular understood in purely political terms. It confuses political secularism as an areligious or non-religious doctrine with ethical secularism as an antireligious doctrine based on a sectarian worldview which denigrates faith as an obscurantist relic from the past that individuals need to be emancipated from in order to be rational and lead a good life. The former sense of the secular does not entail the secular in the second sense; it rather is incompatible with it. The (political) secular character of public institutions simply means that they do not promote any religious and non-religious metaphysical worldview, are open to users embracing any reasonable worldview and do not make judgments about the truth and merit of these worldviews. Such institutions, in a secular state, do not promote irreligion over religion any more than they promote one religion over others. Yet, although they do not directly promote any single comprehensive doctrine, public institutions can have specific features, practices and rules, which unfairly burden religious citizens if those features conflict with religious duties and make it harder for believers to access public institutions. Public services and institutions are biased against religion, for instance, when they prohibit the expressions of religion and religious practices of their users for no valid reason linked to the provision of those services. However, as many proponents of open or liberal secularism have explained, it is usually relatively easy and not very costly to accommodate religious citizens within common institutions so that they can access them without abandoning their religious practices.36 For instance, schools and hospitals can only be equally accessible to all if they provide kosher and halal 36 See for instance: Maclure and Taylor 2011, Nussbaum

17 alternative meals for Jews and Muslims who interpret their religion as requiring them to observe such alimentary restrictions. There are two ways to accommodate religious diversity within public institutions. First, negative accommodation consists in removing rules that have the unintended consequence of making certain religious practices illegal (for instance, schools can abandon rules that forbid ostentatious religious clothing so as to accommodate Muslims girls wearing the hijab) or by exempting believers from general laws or regulations (for instance, schools may exempt Sikh schoolboys from regulation forbidding the possession of knives so as to allow them to wear the kirpan without abandoning general safety regulations forbidding students to bring weapons on the school premises). Second, positive accommodation occurs when a public institution provides a religious service to its users, as when universities provide prayer rooms, when hospitals provide kosher and halal meals, or when chaplains are provided in hospitals and prisons. 37 Such practices of religious accommodation within common institutions should be distinguished from the more demanding notion of accommodation put forth by religious institutionalists who claim that the only way to avoid the alleged general secularist bias of public institutions is to assist religious communities in setting up their own parallel religiously saturated institutions. The goal of this strong form of accommodation is not merely to find ways to diminish the burden placed on religious users of public services in order to make it possible for them to access those services without forfeiting religious 37 For the distinction between negative and positive accommodation, see Swaine 2006, 81; McConnell

18 obligations, it is to create parallel institutions which are pervasively religious in character so that religious persons can maximally feel at home within those institutions. Any plausible understanding of the secular character of public institutions must recognize that these institutions need not to be actively engaged in the promotion of irreligion and can be committed to accommodate a wide range of religious practices in order to remain open to all members of society. But if these two conditions are met (religious accommodation and non-endorsement of ethical secularism), in which sense can public institutions be said to be biased or non-neutral towards religion? This is the point where proponents of the secularist bias argument fall back on a problematic conception of neutrality. This conception is based on the view that public institutions are not neutral because they do not maximize the worth of religious liberty since they do not actively promote a religious worldview. Under this conception, religious citizens are burdened and disadvantaged in comparison with the hypothetical situation in which they have access to publicly funded faith-saturated service providers. This is problematic because the relevant baseline to assess the fairness of the burden borne by religious citizens using public services should instead be a situation of equal access to public services. Note that if the maximization of the worth of liberty provides an adequate baseline for assessing whether or not public institutions unfairly burden certain categories of citizens, then atheists and agnostics are also unfairly burdened by secular public institutions which, by definition, must refrain from promoting atheism or agnosticism. Rather than linking neutrality with the maximization of the worth of liberty, the question should be whether religious citizens have fewer opportunities to benefit from public services than non-believers. They suffer 18

19 discrimination in public services (i.e. have fewer opportunities to access to them) if they are obliged to forfeit their religious obligations in order to receive those services. But they don t suffer such discrimination simply because public services are not pervasively religious and do not actively promote their preferred religious doctrine. In brief, it is misleading to claim that the state has a positive duty to assist religious groups in creating their own institutions to provide a wide gamut of social services from a religious perspective in order to remedy the discrimination that religious citizens face in participating in non-religious public institutions. If public services do not promote antireligious views and observe an obligation to accommodate religious users so that they do not have to forfeit their religious identity to receive public services, then the only way to affirm that religious citizens face an unfair burden or disadvantage in receiving services from secular (non-religious) organizations is to rely on a comparison with the hypothetical situation in which they are the most advantaged and receive the most state support to advance their religious ends. Such comparison does not indicate an antireligious bias imposing an unfair burden on believers; it simply indicates that believers are not currently as well off as they would be if the state granted more resources and autonomy to their religious organizations. Anyone can claim he would be better off than he currently is if the state were to allocate more resources to him or if it were to fully promote his preferred conception of the good. That does not in itself make such a person the victim of an unfair bias against his conception of the good. IV Jurisdiction: Secularism and Church Autonomy 19

20 In the last section, I maintained that treating believers as equal citizens does not require, as a matter of justice, the adoption of a framework of religious institutional pluralism. Equal treatment for believers can be achieved if secular public institutions are willing to accommodate religious diversity so as to be genuinely inclusive and open for all. One may claim that it is no surprise that the liberal commitment to justice and fairness fails to support religious institutional pluralism since the argument from equality simply misses the point of religious institutional pluralism. The argument from equality, according to this view, reproduces the mistake of modern liberal constitutionalism. This mistake is called monism and it consists in viewing the modern (secular) state as the only repository of sovereignty, as the only valid source of authority and law, the ultimate and final arbiter of all conflicts occurring in society.38 According to this view, religious institutional pluralism rests on the claim that religious organizations are autonomous and do not derive their authority from the state. This kind of argument for religious institutional pluralism does not claim that justice and fairness, as it is viewed through the prism of the liberal secular state, commands that citizens should have the choice to access institutions delivering various spiritual and 38 The critique of monism and modern constitutionalism is neither new nor specific to the topic of religious freedom and religious pluralism. In the early XXth century, authors labelled as the British pluralists, such as Harold Laski (1917) and John Neville Figgis (1913), denied the claim that the modern state was the only valid source of authority by highlighting that many intermediate associations, such as universities, churches and unions, command the loyalty of their members and constitute independent sources of authority. The critique of monism has also been developed more recently by proponents of legal pluralism (see for instance MacDonald 2002), of political pluralism (see Muñiz-Fraticelli 2014), and by advocates of ethnocultural group rights (see Tully, 1995). 20

21 social goods in a way that reflect their deepest beliefs. It claims that religious institutional pluralism, at least some level of it, is required to preserve the autonomy and sovereignty of churches and religious organizations and that those churches and religious organizations should enjoy institutional autonomy because the state is not a competent judge of religious questions.39 As I will later argue, such an account of church autonomy rests on the view that the secular state ought to observe a principle of non-interference in religious matters. Yet, recently, in the aftermath of the Hosanna-Tabor and Hobby-Lobby decisions, legal scholars and political theorists have claimed that the recognition of church autonomy is incompatible with the very notion of a liberal secular state. In a series of important articles, Richard Schragger and Micah Schwartzman40 and Jean L. Cohen41 claim that the defence of church autonomy relies on a theological and mystical account of corporate religious sovereignty. Cohen, Swartzman and Schragger raise important and legitimate questions regarding the grounds on which Hosanna-Tabor and Hobby-Lobby have been decided. As I highlighted, those decisions take church autonomy much farther than the non-interference of government in churches decisions to appoint priests and religious teachers according to religious criteria. They limit the capacity of non-members to access positions which are not central to the religious mission of religious organizations as well as their access to certain forms of healthcare. However, as I explain latter, I suspect that secular liberals ought to be more worried by the way the Court has weighed state interests (in protecting 39 Laycock, 1981, 2009, ; Horwitz 2013, Schwartzman and Schragger 2013a; 2013b. 41 Cohen

22 citizens from employment discrimination and in regulating the health insurance plans offered by employers) against the burdens suffered by religious organizations than by the dependence of church autonomy on a mystical and theological account of corporate religious sovereignty. That being said, my main goal is not to challenge the Court s decisions or to provide a fully fledged interpretation of the religious clauses. I will rather focus on the negative task of disentangling the notion of church autonomy from elements of political theology and mysticism that Cohen, Schragger and Schwartzman ascribe to it. In her article Freedom of Religion Inc., Cohen asserts that the recent interest by legal scholars for the assertion by churches and religious organization of their autonomy vis-à-vis the secular state has revived the old and medieval conception of freedom of the church inherited from the Papal revolution.42 This conception rests on the notion of libertas ecclesiae, which pitted the sovereignty of God incarnated in the body of the Church against the claims to sovereignty of the King. Similarly, Schwartzman and Schragger, in their article Against Religious Institutionalism, observe that recent litigation over the application of anti-discrimination laws to the selection of ministers by churches and over the requirement that religious employers provide contraception in the health insurance plans of their employees have revived the notion of church autonomy and the view that religious institutions should be free from government interference. They maintain that what characterizes this new religious institutionalism is the claim that religious institutions enjoy religious freedom qua religious institutions, that those institutional rights are 42 For those recent discussions of church autonomy by American legal scholars, see for instance Horwitz, 2009; 2013; Laycock 2009; Smith 2013; Garnett 2007; 2013; and the essays collected in Schwartzman, Flanders and Robonson

23 distinguishable from individual rights to freedom of conscience and that those institutional rights mean that religious organizations have jurisdiction over certain areas pertaining to their internal governance. What they call the new religious institutionalism is a set of arguments that coalesce around the conclusion that churches are constitutionally unique and that they should have significant autonomy to regulate their own affairs. 43 This position, they argue, is characterized by three claims: 1) that freedom of the church is special and unique, in the sense that it is different (and stronger) than the freedom enjoyed by other associations; 2) that freedom of the church is irreducible to the interests of their individual members and their individual rights to freedom of conscience; 3) that church institutions are sovereign in the sense that the state should always defer to religious authorities in litigation concerning matters of internal governance.44 Cohen also asserts that the uniqueness of religious institutions, the claim of sovereignty and the irreducibility of freedom of the church are the defining marks of this so-called new religious institutionalism which she associates with the shift from justice to jurisdiction.45 Moreover, both the works of Cohen and of Schwartzman and Schragger assert that the claims of uniqueness, irreducibility and sovereignty are often tied to a theological argument.46 If this characterization of church autonomy is correct, church autonomy cannot be defended by a secular state. As I maintained when I introduced the notion of political secularism, a secular state must justify its institutions and policies in a way that is 43 Schwartzman and Schragger 2013a, Schwartzman and Schragger 2013b, Cohen 2015, 189, , Schwartzaman and Schragger 2013b, 23

24 compatible with respecting the free and equal citizens of a society marked by the fact of reasonable pluralism so as to comply with the requirement of neutral justification and the Rawlsian principle of liberal legitimacy. This, in turn, requires the state to avoid justifying its coercive laws by relying on the truth or falsity of a particular comprehensive doctrine, such as a religious doctrine, so as to comply with something. In what follows, I will argue that church autonomy needs not to rest on a theological argument and that it does not entail the claims of uniqueness, sovereignty and irreducibility of the Church. I will indeed suggest that certain defences of church autonomy are compatible with political secularism. Some contemporary commentators do defend church autonomy by relying on a theological argument and this is indeed, for liberal secularists, quite troubling. For instance, Schwartzman and Schragger address the views of Patrick McKinley Brennan who draws on the Catholic doctrine of freedom of the Church asserting that the Church must insist upon the truth about herself not because to do so is, say, an expression of the collective will of the faithful or of the hierarchy, but because [t]he Church is founded by Christ; therefore it is juridically a foundation, not a corporation, and its constitution, its fundamental law, is given directly by God and not ordained by the people. 47 Similarly, Steven D. Smith, who is among the main targets of Cohen s article, argues that freedom of religion should be reinterpreted as freedom of the church by drawing on the medieval notion of libertas ecclesiae, which claims that the church is no ordinary civic association, it is the visible manifestation or the representative within the temporal sphere of the Kingdom of God 48. As such, the Church, in the medieval conception, was the expression 47 Brennan 2013, 3, quoting Heinrich Rommen (1950), Church and State, The Review of Politics, Smith 2013,

25 of a transcendent source of authority, a Higher Law, and was a not only a physical but also a political and legal manifestation of the Body of Christ. In this understanding, the sovereignty of religious institutions is akin to that of foreign embassies: the church and its officials were something like the ambassadors of the kingdom of God within the secular domain 49. It is because they view the church from this perspective, according to Schwartzman and Schragger, that religious institutionalists conclude that the source of its sovereignty is transcendent, which makes it special as compared to other corporate entities, as well as singular, in the sense of not deriving from the rights and interests of its members. 50 Cohen, Schwartzman and Schragger have good reasons to oppose the theological argument for the uniqueness, sovereignty and irreducibility of the church and other religious institutions. Such a theological justification is deeply problematic since, as I just highlighted, it is incompatible with the requirements of public justification in a pluralist society as it cannot be said to give equal consideration to non-believers, especially to those who are affected by the claims of religious institutions to sovereignty such as the women employees of corporations owned by believers who maintain that providing those employees with coverage for contraception goes against their religion.51 One can read some works by McConnell as attempting to reconcile theological arguments for the special and unique status of religion based on divine authority with the requirements of public 49 Ibid. 50 Schwartzaman and Schragger 2013b, It also fails to give equal consideration to believers who disagree with the official position of churches and religious organizations such as Catholic women who do not believe that contraception is a sin. 25

26 justification. His strategy consists in arguing that even non-believers can, and should, accept those arguments because religious people are not only citizens subject to secular laws, they are also believers subject to divine commands and, as such, they face conflicts of obligations that non-believers cannot experience.52 Therefore, argues McConnell, reasonable non-believers should accept that their fellow religious citizens should be exempted from laws which conflict with the religious obligations revealed to their conscience so as to minimize those conflicts. Yet, this strategy fails because it does not recognize that non-believers can also face the same kind of conflicts between their civic obligations and the obligations that stem from their non-religious convictions of conscience.53 Any non-religious person who adopts a realist metaethical perspective regarding her own moral obligations can believe that there are sources of moral obligations other than positive laws and thus potentially faces a conflict between those conscientious obligations and civic obligations. The observation that believers recognize other sources of obligations and authority cannot lead to the conclusion that religious authority is unique and worthy of special legal protection. We should resist assertions of religious sovereignty based on the recognition that religious authority is grounded in a Higher Law and that it is therefore unique, unlike other associations, and worthy of special legal solicitude. However, neither the theological argument nor the special status of religion are implied by church autonomy. 52 McConnell 2000b, Boucher 2013,

27 Some commentators defend church autonomy on purely secular grounds. One may even say that church autonomy is constitutive of political secularism in the sense that one of the foundations of the separation between state and religion is the claim that the state is not a competent judge of religious questions. This claim follows directly from the requirement of public justification and religious neutrality, which, as I maintained, is at the core of the doctrine of political secularism. The state has no business in telling how and how often one ought to pray. On this view, religious institutional pluralism is the natural outcome of church autonomy which, in turn, rests on a principle of non-interference in religious matters asserting that churches have a constitutionally protected interest in managing their own institutions free of government interference 54. The corollary of this principle, of course, is that churches should be able to autonomously conduct religious activities such as building places of worship and schools, praying, conducting religious services, proselytizing, selecting their own ministers, defining their own doctrines, resolving their own internal doctrinal disputes and defining their own criteria of membership.55 This principle of non-interference is constitutive of political secularism and of the institutional requirement of separating state from organized religion and religious beliefs. As many have noted, the goal of such a separation is not only to protect government from the intrusion of religion, but also to protect religion from the intrusion of secular government; the secular separation of state creates twin tolerations 56, it achieves the 54 Laycock, 1981, Ibid Stephen

28 reciprocal autonomy 57 or the mutual independence 58 of state and religion, it amounts to a two-way protection 59, that is, a protection of state from religion and of religion from the state. Non-interference can be defended on many (non-religious) grounds that are compatible with political secularism. I have claimed that non-interference follows from the requirements of public justification and religious neutrality which entail that seeking the truth in religious matters does not figure in the areas of competence of the state but should be left to individuals and the associations they form. Douglas Laycock and Paul Horwitz, also provide arguments for church autonomy compatible with political secularism. Laycock defends a principle of non-interference by claiming that the collective freedom of the church is the extension of the free exercise of religion by individuals. The argument starts with the observation that for most believers, the free exercise of religion is an inherently collective activity. Those believers want to worship together, they perform rituals such as baptism and marriage which have social and public dimensions and also take forms of collective celebrations, they want to associate in order to seek existential, metaphysical and moral truths by discussing with like-minded fellows and those associations are sometimes the basis of collective civic engagement and political mobilization.60 Thus a government that interferes into the internal affairs of religious 57 Bhargava Laycock Gutmann For this last point (religious associations as a basis of civic engagement and political mobilization), see Weithman

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