The Rise of Corporate Religious Liberty

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Editor(s): 
Micah Schwartzman, Chad Flanders, and Zoe Robinson
  • New York, NY: 
    Oxford University Press
    , January
     2016.
     528 pages.
     $45.00.
     Paperback.
    ISBN
    9780190262532.
     For other formats: Link to Publisher's Website.

Review

The collection of essays within The Rise of Corporate Religious Liberty offer competing views on the history and logic of the “corporate turn” in religious freedom in the United States. The “rise” in the title refers to increased emphasis on institutionalism in legal scholarship, as well as expanding protections for corporations prominent in recent decisions, like Hosanna-Tabor Lutheran Church and School v. EEOC and Burwell v. Hobby Lobby Stores, Inc. These decisions raise questions about who or what exercises religious freedom, particularly when asking for exemptions from otherwise neutral laws, like the American Disabilities Act or the Affordable Care Act. Most of the essays demonstrate that Hobby Lobby and Hosanna-Tabor offered no precise definition of religious organizations and therefore did not resolve whether corporate liberties are extensions of an individual’s right to participate in voluntary organizations, or whether religious corporations are distinctive entities that exercise authority over institutional governance.

One of the book's strengths is that it brings diverse perspectives on corporate religious liberty into conversation. Arguments range from Steven D. Smith’s defense of “freedom of the church,” which offers churches jurisdictional autonomy analogous to foreign countries, to Robin West’s concerns that religious exemptions amount to exit rights that threaten attempts to foster civic equality. These and other essays tend to share the view that corporate liberty creates institutional spaces protected from state regulation, but disagree about whether this is a good thing.

The first section of the book investigates the history of the relationship between individual religious liberty and the freedom of the church. Sarah Barringer Gordon challenges thinkers like Smith who work with an implicit secularization theory that presumes that religious institutional authority has weakened over time. Gordon notes that applications of corporate law to religion in the early republic were designed less to protect institutions from state oversight than to provide clear mechanisms to regulate corporate religious bodies. Essays by Lawrence Sager and Chad Flanders also take up the question of whether there is something special about religious organizations by drawing connections to mundane institutions like social clubs and political parties.

Later sections consider what corporate law and institutional theory say about the relationship between churches and for-profit corporations. Some of the more evocative essays in the book place these legal debates in political contexts. Douglas Laycock asserts that robust RFRA exemptions help to correct for what he sees as the mutual intolerances of Christian conservatives and "hysterical" opponents of religious freedom. Robin Fretwell Wilson proposes that practical solutions lie in the willingness of various parties to make legislative compromises that promise more effective guarantees of religious and sexual freedom. By portraying religious-freedom exemptions as political interventions in culture wars between two sides, Laycock and Wilson draw equivalences between the right to discriminate against others and the right not to be discriminated against. It is possible that the corporate turn is a product of this willingness to recognize that religious liberty is employed by political actors to leverage institutional power rather than to protect the apolitical rights of individual citizens. Conservative Christians, then, might turn to exemptions only when they feel they have lost hegemonic power. On this point, Paul Horwitz and Nelson Tebbe advance the counterintuitive claim that the rise of legal institutionalism reflects anxieties over the declining influence of institutional authority in American society.

The book gives the last word to some of the stronger critics of Hobby Lobby, especially those who see a lack of realism in the decision's treatment of religious organizations. Several essays note that the majority decision made hypothetical claims that ignored existing realities in corporate practice. Elizabeth Sepper shows how Justice Alito's assurance that the effect of Hobby Lobby would be "precisely zero" failed to consider that it is already the case that individual rights are burdened by religious exemptions, as with Catholic health care systems that bind doctors and hospitals regardless of religious affiliation. Elizabeth Pollman demonstrates that Alito's grasp of corporate law is impoverished, especially in his presumption that categories like a "closely held" corporation have a clarity they do not. Richard Schragger and Micah Schwartzman approach realism from a philosophical angle, arguing for a return to a pragmatic tradition that focuses on what religious institutions do, rather than making ontological assessments about what they are.

Ironically, the book's most powerful challenges to Hobby Lobby might be those that best demonstrate how deeply embedded normative investments in religious freedom are within American law. While the contributors take diverse positions on technical legal questions, almost all of them believe that religion is a positive social force to some extent or another. Furthermore, while everyone would concur that religion is hard to define, few consider the questions raised by scholars who have charted the manufactured and invented quality of the category of religion itself. Mark Tushnet’s concluding chapter does address the arbitrary character of religious classification, by arguing that religion is synonymous with Christianity unless specifically marked as such. It is unclear, however, how legal scholars would respond to genealogists of secularism who see religion as produced and regulated by secular institutions rather than as a pre-existing social formation that needs to be accommodated by the law. In fairness, the implications of postcolonial critique might make it impossible to sustain a normative commitment to resolving legal disputes. As a book that does include a range of constructive proposals, Schwartzman, Flanders, and Robinson's volume provides an insightful, timely, and useful survey of arguments about corporate religious liberty.

About the Reviewer(s): 

Finbarr Curtis is Assistant Professor of Literature and Philosophy and Director of the Center for Religious Studies at Georgia Southern University.

Date of Review: 
May 21, 2016
About the Author(s)/Editor(s)/Translator(s): 

Micah Schwartzman is the Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Chad Flanders is Associate Professor of Law at the St. Louis University School of Law.

Zoë Robinson is Professor of Law at the DePaul University College of Law.

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