Institutional Religious Freedom: An Overview and Defense

Abstract

The idea of institutional religious freedom has become increasingly controversial, especially in the United States, and pressure for such freedom has been growing. The notion that institutions, including commercial ones, can have religious freedom rights has been described as unprecedented. However, the notion of such religious freedom has deep historical roots in a wide range of settings, is deeply intertwined with the growth of free societies, and is tied to the nature of religions themselves. This also applies to religious commercial institutions, which are far more widespread than commonly recognized. I focus particularly on what is it about such institutions that needs protecting and emphasize that what is central is the particular practice that typifies the organization. It needs the freedom to be what it is and to live out a religious commitment. If this calling is denied or subverted, then the institution loses its raison d’être. One of the principal reasons for forbidding government discrimination on matters such as religion is precisely so that private institutions will be able to appropriately employ staff and carry out policies according to their own particular beliefs as to what supports their distinctive mission. Governmental neutrality is intended to be a foundation for a lively and diverse societal pluralism, not for society to become a mirror of the government itself.

1. Introduction

The idea of institutional religious freedom has become increasingly controversial and confused in recent years, especially in the United States, and pressure for such freedom has been growing. The notion that institutions and organizations, including commercial ones, can have rights has been described as outlandish and unprecedented. Much of the controversy relates to the still common American supposition that rights and their concomitant freedoms can apply only to individuals. Contentious U.S. Supreme Court decisions, such as Citizens United and Hobby Lobby, have also contributed to widespread suspicion about the rights and freedoms of institutions.1

Given this situation, I will in this paper attempt to give an overview and defense, with historical and contemporary examples, of the roots of institutional religious freedom, its nature and extent, and what particularly needs to be protected for these institutions in terms of competence and vocation. I argue that one of the principal reasons for forbidding government discrimination on matters such as religion is precisely so that private institutions, and not only religious ones, will be able to appropriately employ staff and carry out policies according to their own particular beliefs as to what supports their distinctive mission. As Cécile Laborde (2017, p. 125) puts it: “the state should be secular so that citizens do not have to be.” Governmental neutrality is intended to be a foundation for a lively and diverse societal pluralism, not for society to become a mirror of the government itself (McConnell 2020).

One key issue on this topic has been growing dispute and uncertainty over the very nature of rights themselves, so I will seek to address that first (Rhodes 2018; Moyn 2019).

2. Rights

Despite very stiff competition, the notion of rights is perhaps the most confused concept in our political vocabulary. Human rights are the most common way of addressing normative issues in politics worldwide and are central to many modern theories of ethics, of politics and to many laws. However, the varied types of rights—including but not limited to human rights, natural rights, civil rights, moral rights, subjective rights, and legal rights—are often conflated when, in fact, each can refer to quite distinct entities and have few direct connections (Marshall 1992, pp. 661–76). Within each of these categories, there are many further possible subdivisions. For instance, Wesley Hohfeld (1919) developed a very complex fourfold distinction of rights as privileges or liberties, claims, powers, and immunities.

Among international human rights treaties, the International covenant on Civil and Political Rights (ICCPR) subjects its rights guarantees to different limiting conditions; some are non-derogable while others are derogable under certain emergency conditions. The International Covenant on Economic, Social and Cultural Rights presents its rights as necessary goals rather than as the limiting conditions that predominate in the ICCPR. The rights that stem from government restraints can be enacted by almost any functioning government, whereas there may be legitimate reasons why a government cannot fulfill other economic or political rights at a particular time (Marshall 2020a).

Indeed, the very word right, especially in the United States, often loses specific content and becomes merely a general term implying approval or disapproval, commendation or criticism. For instance, I could say “you have no right to speak to me like that,” meaning that you are wrong to do so, without implying that you have no legal right to insult me. Something desirable becomes treated as a right and something undesirable as a no-right.

Additionally, within current political battles, opponents usually vie to appropriate the mantle of rights for their own position. As L. W. Sumner (1987, p. 8) pointed out: “it is the agility of rights, their talent for turning up on both sides of an issue, which is simultaneously their most impressive and their most troubling feature. Clearly, interest groups which agree on little else agree that rights are indispensable weapons in political debate.” In Ronald Dworkin’s terms, rights are “trumps”, and it will not help you to simply have high cards of your own, such as fairness, justice, equity, or propriety: you need your own trump to beat a trump. In this situation, rights are especially potent rhetorical weapons: “if one interest group has built its case on an alleged right none of its competitors can afford not to follow suit… they will tend to proliferate and to escalate” (Sumner 1987). Such proliferation and escalation is apparent throughout the world, and especially in the United States.

As a result, despite widespread emphasis on rights, there is little clarity about what we mean or should mean when we discuss issues related to rights, and this has worsened when the differences over institutions are added.

3. Historical Institutional Rights

In the United States, the emphasis on individual rights has resulted in what Mary Ann Glendon (1991, pp. x–xi, 14) describes as an “excessive homage to individual independence and self-sufficiency,” and a focus on the “individual and the state at the expense of the intermediate groups of civil society” (Frohnen and Grasso 2009). This, in turn, makes it “extremely difficult for us to develop an adequate conceptual apparatus for taking into account the sorts of groups within which human character, competence, and capacity for citizenship are formed… For individual freedom and the general welfare alike, depend on the condition of the fine texture of civil society—on a fragile ecology for which we have no name” (Glendon 1991, pp. 109–10).2 Even Michael Ignatieff (2003), who holds that all rights are finally individual, cautions that an exclusive focus on individual human rights as the source of political norms can become idolatry.

Here, I will focus on legal rights and argue that they may be held by institutions in terms of self-definition, self-governance, and self-directed action and expression. In the West, analogous rights have been held by institutions for millennia. Some of these, of course, have been subordinate political entities, such as cities, towns, villages, and colonies that were granted charters to exercise rights and powers or were otherwise founded on a covenant and oath (Berman 1983, p. 393).

However, such rights have been and are held by more than political entities. One prime example is, of course, the Church, which has had the right to own land, carry out ecclesiastical trials, choose or appoint leaders, determine doctrine, grant academic credentials, run hospitals and schools, and perform multifarious functions related to the lives of its members or constituents. As Berman (1983, pp. 268–69) wrote: “The competition between the ecclesiastical and the secular court had a lasting effect on the Western legal tradition. Plural jurisdiction and plural legal systems became a hallmark of Western legality… Underlying the competition… was the limitation of the jurisdiction of each.” Similarly, George Sabine (1961, p. 180) wrote “The rise of the Christian Church, as a distinct institution entitled to govern the spiritual concerns of humankind in independence of the state, may not unreasonably be described as the most revolutionary event in the history of western Europe, in respect both to politics and to political thought.” Henry Kissinger also opined “Restraints on government derived from custom, not constitutions, and from the universal Catholic Church, which preserved its own autonomy, thereby laying the basis—quite unintentionally—for the pluralism and the democratic restraints on state power that evolved centuries later” (Kissinger 2001, pp. 20–21).3 I will return to church and state questions below.

Other organizations, such as guilds and professional societies, also had rights to determine the training and qualifications and character needed for membership and to perform particular lines of work. They were understood as much more than mere means of work and income. The term “profession” itself partly derives from the profession of faith and commitment that a candidate made on entry into the guild’s order, analogous to entering a monastic order (Godefroy [1881] 2019).4 Indeed, Berman describes guilds as originally “sworn brotherhoods whose members were bound by oaths to protect and serve one another” so they might provide “for the spiritual, and not only the material, aspects of their members’ lives.” He notes that guilds could also be lawmaking bodies with their own authority (Berman 1983, pp. 390–91).5

Accordingly, there was often no sharp distinction between a religious body and an economic one. These aspects could be understood as intertwined—both could be described by terms such as profession, calling, or vocation (Marshall 1996).6 While this sense of meaning has been weakened in the modern era, aspects of it remain. There is still often a formal commitment, including ethical standards, required upon entry into professions such as medicine and law, which also maintain their own governing bodies, rules, and standards, and which have the authority to take disciplinary action. Trade unions have exercised some similar functions, and many still describe themselves as “brotherhoods,” such as the International Brotherhood of Electrical Workers and the International Brotherhood of Teamsters.

More strictly, commercial corporations have also been granted extensive rights, frequently too much so. Some, such as the British East India company, the Vereenigde Oost-Indische Compagnie, or the Xinjiang Production and Construction Corps, have exercised governmental, including military, powers and often have done so brutally.7 Thankfully, the rights of commercial bodies have now usually been trimmed to better fit their purpose and organization, but they still maintain a range of rights.

So, legal rights have been long held by institutions and organizations, and there is a growing emphasis on this in the U.S. and elsewhere (Schwartzman et al. 2016; Muñis-Fraticelli 2014).

4. Rights and Collective Bodies

There has recently been a stress on the notion of “group rights,” a notion ably defended by William Kymlicka and others. He argues that certain rights are related to social practices, cultural meanings, and a shared language and that these are “owed to people as members of a particular community, rather than universal rights owed to all people as human beings” (Kymlicka 2000, p. 206; Kymlicka 1994, pp. 17–33). However, given his and others’ focus on indigenous and language communities, the language of “group rights” can be misleading. He is arguing less that an organized group itself bears rights as an organization and more that its members may properly have moral and legal rights different from those of non-members. In this sense, he is arguing principally for differential rights held by people, rather than for organizational or institutional rights per se.8

Not all collective bodies can bear institutional rights. As Kymlicka argues, people with different characteristics may properly have some different rights. Indigenous tribes may have different hunting and fishing rights different from those who do not come from a tribal background on the grounds that this reflects longstanding traditional rules and customs, perhaps analogous to common law. Such rights, moreover, may be central to indigenous lives and livelihood in ways that they are not for others. There may also be differing language rights, as in Canada, where not only French and English but also traditional indigenous languages are granted legal status in certain regions of the country.9

However, while these rights pertain to particular sets of people, or members of a people group, rather than to all people residing in a particular state or area, they still remain individual or personal rights. They are differentiated according to specific, shared characteristics and are not rights held by collective entities as such.10 One exception to this can be the situation of indigenous peoples who have not only shared social practices, cultural meanings, and language but many of whom live in organized entities that have their own legal structure, such as the Navajo Nation or the Seneca Nation of Indians. These are institutional rights-bearing entities and have legal jurisdictions.

Institutional rights can only be held by bodies actually capable of exercising rights and duties. For instance, Francophones, or red-headed persons, or left-handed people do not have institutional rights. Such classes of people have no collective legal personality.11 However, an organized body such as a tribe, mosque, university, or a flower shop can have rights. These organized bodies can receive a bill or write a check; they can bring a lawsuit or be sued; they can buy and sell property. In short, they have legal personality (Muñis-Fraticelli 2014, pp. 195–96). My late professor, Bernard Zylstra, suggested a shorthand guide to determining whether a collective body has legal personality, observing that it depends on whether you can you write a letter to or phone it, or it to you. It is possible to phone or write to representatives of the Navajo Nation, but not to Native Americans as such. If such an organized structure is not present then the body is not an institution and does not have legal agency or personhood.12 This recalls the famous statement widely, though falsely, attributed to Henry Kissinger: “Who do I call if I want to speak to Europe?” implying that the EU was not, in foreign affairs at least, an organized entity (Rachman 2009).

5. Religion

Of course, the nature of rights and possible rights-bearing institutions only addresses one part of the issues—we must now turn to the equally contested concept of religion. While many agree that there is a set of phenomena that we can properly call religious, there is no universally accepted definition or specification of what religion is. Indeed, Miroslav Volf (2005) has written: “I’m somewhat hesitant to designate any of the world’s faiths as ‘religions’ because the very notion of ‘religion’ is a product of modernity; it represents the reduction in a living and encompassing faith to a sphere—a religious one—within the larger secular society.” William Cavanaugh (2009, p. 3) maintains that the category “religion” has been “invented in the modern West and in colonial contexts according to specific configurations of political power.” John Milbank (2006, 2013) asserts “Once, there was no ‘secular’.”

Commonly, Islam and Christianity are accepted as religions, but other situations are less clear. Since Buddhism does not entail belief in a God or gods and is still usually accepted as a religion, then neither theism nor deism is presumably a necessary element. However, if this is so, is Confucianism also a religion? Or Taoism? If we include these, we might be getting close to treating religion as any ultimate or basic belief, commitment or practice, whether or not others regard it as “secular.” In many places in the world, atheists may be persecuted for holding atheistic beliefs (Humanists International 2020). It seems appropriate to describe this as religious persecution but is, then, being an atheist or an agnostic a religious stance?

Political movements, such as Communism or Fascism, have been described as “political religions” (Voegelin 1986). Several Western European countries treat “secular humanism” as something to be recorded in official listings of “religions and beliefs.” Belgium, for example, recognizes and funds secular humanism (la laïcité) on the same basis as it does explicit religions. Article 181 of its constitution guarantees the payment of the wages and the retirement pensions of ministers of recognized religions and also the “moral assistants” of secular humanism (Fautré 2008, p. 95). Hence, there is a plausible claim that a wide range of people and institutions are in some ways religious in that they embody some ultimate commitment that shapes them. This reflects some established theological positions and practices and also recent trends in religious freedom.

In the case of conscientious objection, courts and international bodies have often concluded that it would be unjust to give conscientious objector status to those with religious objections to serving in combat while denying it to those with deeply held “secular” beliefs. In these cases, courts and legislatures have extended this right to religion-like beliefs, even if they are not held to be directly religious. In considering conscientious objection, the U.S. Supreme Court has held that the legal protections around it could apply to a “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God” (United States v. Seeger 1965).13 In a similar vein, the most common expression in international religious freedom matters is “freedom of religion or belief” (FoRB).

Hence, there are good grounds for holding a very extensive view of what counts as religion and, therefore, a religious institution. However, a drawback to this approach is that the definition could become so broad that little would be left out. If everything is religious, then functionally, nothing is. Additionally, the use of the word “religion” would be far removed from that most commonly used in law and public discourse.

An alternative would be something akin to Kathleen Brady’s reworking of Daniel Philpott’s suggested definition, which is that “Religion is an interconnected set of beliefs and practices through which people answer the grand questions of life by seeking to live in relationship to the ultimate power or powers that grounds reality and is present to them in the real circumstances of their lives. They do this most characteristically through worship and similar practices seeking a connection with the divine. Religion typically involves related rituals, a community, a clerical professional, and a moral code grounded in the sacred realm” (Personal Communication 2020).14 This definition is not tight—definitions of religion can usually be either accurate or precise but not both—but it does capture what most scholars and ordinary people think of as religion, while also including a range of fundamental beliefs that function “like religion.”

Under this understanding of religion, which I adopt in this paper, a shorthand description of a religious institution is one that is shaped by a particular set of beliefs and practices oriented to ultimate questions of reality.

6. The Range of Religion

There is general agreement that churches, mosques, synagogues, temples, and similar organizations are religious institutions—both as particular congregations and also as larger organized entities, such as the Catholic Church or the Islamic Society of North America. This recognition is usually also extended to “para-church” organizations with quasi-church functions, such as the Billy Graham Evangelistic Association, and to institutions, such as seminaries, that train clergy.

However, there has recently been an increasing tendency to narrow the scope of religious freedom beyond these types of organizations. For a time, President Barack Obama, otherwise often a defender of faith-based groups, and then Secretary of State Hilary Clinton, started using the phrase “freedom of worship” in place of “freedom of religion,” as though the only thing that religions do is worship (Miller 2016). One striking example was when, in 2010, the United States Court of Appeals for the Ninth Circuit held that the massive Christian humanitarian organization World Vision was a religious organization—its employees needed to sign a statement of faith upon employment and this had to be renewed each year. However, in a dissent, Judge Marsha Berzon asserted that, in order to determine whether an organization is religious, “we ask only whether the primary activity of a purportedly religious organization consists of voluntary gathering for prayer and religious learning” (emphasis in original). She remarked that most of World Vision’s work was humanitarian relief “providing potable water, emergency medical, and vocational training… that is on its face, secular. In short, World Vision is nothing like a church” (Spencer v. World Vision Inc 2010).15

Justice Berzon was on the losing side of this case but, over the last decade, views such as those she has expressed have become increasingly widespread. Religion is increasingly said to be private, or else should be required to be private—not merely in the sense that we might refer to a company, university, school, or charity as private, but as something much more akin to “intimate,” “personal,” or something separate from it which does not, or should not, impinge on social or public life.16 One of the most striking examples of this is the “Equality Act” introduced on February 18, 2021, in the 117th Congress, which would, inter alia, prevent religious organizations from using the Religious Freedom Restoration Act as a defense against discrimination claims.

These assertions betray an ignorance of religion. Saying that an activity is “secular” simply means it is “non-religious,” which begs the question. There is much that I am ignorant of about with many religions, but none that I know of teaches that the duties of its followers are simply confined to worship and religious learning. President Obama himself distanced himself from his earlier language of “freedom of worship” and, on a trip to Vietnam in 2016, emphasized that, when there is freedom of religion, “it allows faith groups to serve their communities through schools and hospitals, and care for the poor and the vulnerable” (Miller 2016).

Religions normally include laws, practices and ethical demands, usually including humanitarian demands, and sometimes these might even be given priority over prayers or sacrifices or learning (Monsma and Carlson-Thies 2015, pp. 51–66; Beckwith 2019). One of the most famous examples is in the first chapter of Isaiah:

“Stop bringing meaningless offerings!

Your incense is detestable to me.

New Moons, Sabbaths and convocations—

I cannot bear your worthless assemblies.

Your New Moon feasts and your appointed festivals

I hate with all my being.

They have become a burden to me;

I am weary of bearing them.

When you spread out your hands in prayer,

I hide my eyes from you;

even when you offer many prayers,

I am not listening. Your hands are full of blood!

This is how the prophet says that God responds to “worship” that is separate from support for the poor and weak. In its place, we each are called:

Learn to do right; seek justice.

Defend the oppressed.

Take up the cause of the fatherless;

plead the case of the widow.”

(vv. 13–15, 17)

These very well-known texts, amongst those central to Western religious traditions, assert that prayers, worship and sacrifice will be rejected, that they are even offensive to God, unless the people do justice and defend the oppressed and succor the widow. They call for the primacy of love of God and our neighbors. In modern deracinated language, humanitarian acts can count for more than liturgical ones, though such a distinction would have been meaningless for the Israelites and many others.

That the “humanitarian” and liturgical dimensions of religious life are necessarily interwoven is also shown in ancient Israel’s celebration of the Sabbath and the Jubilee. Every fiftieth year was to be a Jubilee year that had rules to alleviate poverty, including that land which had been previously sold was to be freely returned to the seller so that the major economic resources would continue to be spread among the population (Lev. 25:6). However, the Jubilee was also to be proclaimed on the Day of Atonement, the day when Israel commemorated their release from Egypt, introducing a year that “proclaimed the Lord’s release” (Deut. 15:2; Lev. 25:9–10). It was not a simple redistribution of wealth but also part of a liturgy of reenactment; “You shall remember that you were a slave in the land of Egypt, and the Lord your God redeemed you; therefore I command you this today” (Deut. 15:15, emphasis added). It was not a simple “economic” act but was also, at the same time, an act and test of faith, a facet reinforced by the commandment that Israel was also not to plant crops for two years but rely solely on God’s bounty. (Lev. 25:20–21).17

Additionally, as the letter from the Apostle James puts it: “Religion that is pure and undefiled before God the Father is this: to visit orphans and widows in their affliction…” (James 1:27).18 Famously, for James, “faith without works is dead.”

One of the five Pillars of Islam is the duty to pay Zakat, sometimes ranked as next after prayer, Salat, in importance. The obligation of Zakat instructs all Muslims who can do so to donate a certain portion of their wealth each year to charitable causes, especially to the poor. Indeed, in the Qur’an, the duties of Salat and Zakat are paired twenty-eight times—they simply go together (National Zakat Foundation n.d.). This is simultaneously both a humanitarian act and a religious act. For a believing Muslim, suggesting that it must be one or the other would be meaningless and perhaps offensive.

There is often a similar claim that if something is political then it is not religious. However, this, similar to the contrast between religious and humanitarian, is akin to saying that a table is not round but red. However, tables can be both round and red, and politics and parties can be both religious and political.

America’s and Canada’s founding documents, and those of many other countries, reference God. The first paragraph of the American Declaration of Independence refers to the “equal station to which the Laws of Nature and of Nature’s God entitle them…” Additionally, it holds that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights…” Not simply “are equal” but “created equal.” Equality stems from the fact that we have been created. Lest this be thought of as simply an irrelevant archaic reference, we may note that the Preamble to Canada’s Constitution Act, passed in 1982, states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

The Christian Democratic parties of Europe and Latin American claim both religious inspiration and political aspiration. The Centrist Democrat International, formerly long known as the Christian Democrat International, is the largest grouping of political parties in the world, with 94 member parties from 73 countries. Its most influential member is probably the German Christian Democratic Union, currently headed by Angela Merkel. The CDI’s European division is the European People’s Party (EPP), currently the largest political party in the European Parliament. With the early influence of the “Vatican triumvirate” of Alcide De Gasperi, Robert Schuman, and Konrad Adenauer, there is a strong case to be made that the European Union is a child of an explicitly Christian Democratic ethos (Audisio and Chiara 2004).

Religion nearly always affects politics. Usually not by efforts to create some imagined “theocracy,” a goal usually not of its proponents but an implied slur of its critics, but by the innate religious task of shaping hearts and minds, hopes and dreams, and also often by forming members in the habits and practices of deliberation, compromise, and association. Our ultimate beliefs influence our views of history, justice, law, mercy, power, human nature, and evil. Additionally, of course, it is impossible to approach politics in a way totally divorced from our views of history, justice, law, mercy, power, human nature, and evil. Indeed, some have argued that it is necessarily religious to argue that human beings have rights (Perry 1998, pp. 11–42; Perry 2007; Witte and Alexander 2008).

Asserting that human beliefs, principles, commitments, lives, goals, or acts, must be either religious or economic, religious or humanitarian, religious or social, religious or political, religious or aesthetic, betrays the ignorance of or suppression of history and of what, empirically, religions are. Religions do not live in a corner, in a private realm, confined to a Sunday or Sabbath, to be enacted only at Yom Kippur or Ramadan. They have and do pervade and shape human life in its entirety. They are, for good and evil, at the core of human life.

7. Religious and Religiously Shaped Organizations

Current disputes about the religious freedom of institutions usually do not focus on churches or synagogues per se but on organizations that serve in the wider community—including what are often called “faith-based organizations.” As Stanley Carlson-Thies notes: “As religious groups and governments both seek to solve the same social problems (and often work together to do so) and the nation’s moral diversity deepens, conflicts have proliferated and become more bitter. Indeed, it is when religious groups are both inward-looking and outward-looking that our most intractable divisions over institutional religious freedom arise” (Personal Communication 2016).19 Some religious institutions, such as magazines, newspapers, radio and television stations, and publishers have, so far, not been especially legally contentious.20 The disputes arise primarily concerning organizations that serve people who are not necessarily part of the sponsoring religious group.21 For example, universities that have a religious mission may, and usually do, welcome and educate and serve students who do not share their religious identity. The same is typically true for religious schools, hospitals, welfare agencies, homeless shelters, and adoption agencies among others. A major case concerning Catholic adoption agencies, Sharonell Fulton et al., v. City of Philadelphia, is currently before the U.S. supreme Court.

While religious institutions may be properly required to serve everyone entitled to service, regardless of their religion, contention has arisen as to whether these institutions may insist that their staff, or certain members of it, must uphold the religious mission and beliefs of the organization. Can they insist on the adherence of their staff, faculty, and perhaps students and others who they serve to codes of conduct that proceed from their religious mission?22 American courts have usually held that they can. The U.S. Supreme Court’s Hosanna-Tabor v. EEOC (2012), holding that a Lutheran church school could fire one of its teachers for violating the school’s code was unanimous. The same court’s decision in Our Lady of Guadalupe School v. Morrissey-Berru (2020) was 7-2 in the school’s favor. There are also disputes as to whether, say, a Catholic adoption agency can restrict adoptions to couples that are married according to the teaching of the church. Similar contentious issues have emerged with respect to religiously oriented hospitals and social service organizations, where the effect on third parties comes to the fore (Berg 2015).

In considering institutional religious freedom, one of the most contentious matters concerns religious freedom and some commercial organizations, such as Hobby Lobby or Chick-fil-A, have been in the news and in the courts (Marshall 2019). However, these are only the tip of the iceberg and can be misleading examples since, as I will discuss below, they are not typical of most religious businesses. Additionally, similar to many businesses with a religious dimension, they usually do not claim to be religious institutions per se, and usually do not have religious criteria in hiring. What they claim is that there are certain religious principles that guide corporate conduct. The key question is whether they can have religious aspects and religious freedom even though they are also for-profit corporations competing in the market. In Burwell v. Hobby Lobby Stores, the Supreme Court held that “closely held” for-profit corporations could be considered as “persons” under the Religious Freedom Restoration Act and thus could properly have religious freedom claims. It did not address the matter of less closely held corporations.23

Some have held that the decision was novel, and Justice Ginsburg called it “startling” and “radical.” However, Steven D. Smith argues that, since the Supreme Court has held for a century and a half that the term “persons” normally includes corporations, then the decision was in fact blandly “sensible” and “yawningly unadventurous” (Smith 2020). What is often called the “dictionary act,” setting out definitions at the beginning of the US Code, states that “In determining the meaning of any Act of Congress, unless the context indicates otherwise—the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals…” Ronald J. Colombo (2014, pp. 159, 153–55) argues that “it would seem incongruous to recognize a corporate right to speech but not to religion.” If a corporation, such as the New York Times Company, can have free speech rights then it seems that a corporation could rightfully claim other First Amendment rights.

As Monsma and Carlson-Thies point out, “the nonprofit vs for-profit distinction is less a real distinction than is commonly assumed. It is one made by the Internal Revenue Service to determine an organization’s tax status. It does not rest on a fundamental difference in the nature of entities.” The brief filed by Hobby Lobby before the Supreme Court states “The government agrees that a Jewish individual could exercise religion while operating a kosher butcher shop as a sole proprietor. Presumably, he could continue to exercise religion if he formed a general partnership with his brother. But the government says the ability of this religiously observant butcher to exercise his faith abruptly ends… at the moment of incorporation, even though he engages in the exact same activities as before” (Monsma and Carlson-Thies 2015, pp. 61–63).

Many of the more general objections to the decision appear to stem from a belief that religion is, or should be, irrelevant to how corporations function. Elizabeth Sepper asked “How can a business have beliefs, religious or otherwise? What does it mean for a business to hold a faith? How can a corporation exercise religion? How does it show sincerity? Can a single-minded obsession to maximize profits meld with religious devotion?” (Sepper 2014). However, many corporations have other goals than solely the maximization of profits, let alone the “single-minded obsession to maximize profits,” and religion can be central to how corporations are structured and go about their business. As Colombo (2014, p. 58) points out, the American Law Institute, in its “Principles of Corporate Governance,” specifically advises that corporations are not entirely beholden to profit maximization.

8. Religious For-Profit Institutions

One key factor in discerning whether an institution, even a for-profit corporation, is religious is whether it does things that are shaped by a religious commitment. Does it do (some) things differently from other corporations that do not claim any religious inspiration? The fact that a corporation might also want to make a profit so that it can continue to exist does not mean that it does not at the same time also do a range of other things. Many profit-making bodies also commit themselves to supporting goals, such as environmental stewardship, combatting climate change, as well as supporting charities, that might adversely affect their bottom line (Adhar 2016).

Guilds in ages past recognized and nurtured the spiritual aspects of their members’ lives. There was no sharp distinction between a religious body and an economic one and they could properly be described by terms such as profession, calling, or vocation, words that still have a normative echo emphasizing that their practitioners do far more than money-grubbing. We can ask similar questions about a university, or hospital, or welfare organization, or a law firm, or even a for-profit corporation. Does it see itself as having a calling, a vocation, a mission?24 Does the entity’s religious vocation affect the way it operates? Is it different from a purely commercial business?

For example, Chick-fil-A closes on Sunday, in America one of the more profitable days of the week for restaurants. This potential sacrifice of profits indicates that its owners see the company not merely as a profit-oriented entity but as a calling, a means of service, a corporate way of obeying God. In 2000, Chick-fil-A’s founder Truett Cathy and his brother presented a covenant to their sons that included promises never to open on Sunday, that the company would stay private, and that it would support philanthropic work. It promised “We will be faithful to Christ’s lordship in our lives. As committed Christians we will live a life of selfless devotion to His calling in our lives We will prayerfully seek His leadership in all major decisions that impact our family and others. Our family roles as spouses to our lifelong mates, parents to our children, and loving aunts and uncles will be our priority” (Taylor 2019). This is not merely theological window-dressing but, as with any genuinely religious organization, helps shape the way it does business (Bronner 2013).

Similarly, Hobby Lobby closes their stores on Sundays, reportedly starts staff meetings with Bible readings, pays above minimum wage, and uses a Christian-based mediation practice to resolve employee disputes.

Lest it be thought that such corporate religion is merely the province of conservative Christians in America’s culture wars, there are many other examples. Don Larson, the founder and CEO of the Sunshine Nut Company left his senior corporate position with Hershey when he believed God was calling him to “Go and build food factories in developing nations to bring lasting economic transformation.” He and his family sold everything they had and, in 2011, moved to Mozambique. They started a food factory hiring primarily adult orphans, developed relationships with orphanages and other community organizations throughout Mozambique, and supported and developed projects using 90% of their profits. In 2014, they were able to start supplying U.S. retailers such as Wegmans and Whole Foods and now have an all-African staff of 30 (Marshall 2020b).25

This could be described both as a business and as mission work.26 Indeed there is a major trend in missions to develop businesses to support local communities so that they can be self-sufficient and not need aid.27 Being a missionary and developing an economic enterprise can be virtually identical activities, depending on the purpose.

The large supermarket chain Wegmans seeks to reflect Catholic social teachings on solidarity, subsidiarity, the dignity of the human person, and the care of the common good, and in doing so has, according to Fortune, become the second-best place to work in America. Following similar principles, Nucor Steel, the second largest steel company in the U.S., makes compensation for both the CEO and employees to rise or fall together depending on the company’s success. In the similarly Catholic-oriented The Wine Group, the second-biggest wine company in the U.S., senior executives are only rewarded with stock bonuses for their work 20 years down the road, so that planning for the company is based on a “20-year time horizon.”(Marshall 2020b) William Bowman, Dean of the Catholic University of America’s Busch School of Business, maintains that simply using “strict metrics for return on investment” is “itself is a minor violation of Catholic social teaching, because the person is the purpose of the business, and not the dollar, and that has to be reflected in how the company operates…” (Smith 2017b).

In Centesimus Annus, Pope John Paul II argues that the Catholic Church teaches that “profitability is not the only indicator of a firm’s condition… In fact, the purpose of a business firm is not simply to make a profit but is to be found in its very existence as a community of persons who in various ways are endeavoring to satisfy their basic needs, and who form a particular group at the service of the whole of society. Profit is a regulator of the life of a business, but it is not the only one; other human and moral factors must also be considered which, in the long term, are at least equally important for the life of a business.”28

Further afield, Forward Sports is a company based in Sialkot, Punjab, Pakistan, that manufactures excellent sports equipment. It has been the official provider of balls for the last two FIFA world cups, produces about 70% of the global output of hand-stitched soccer balls, and also supplies an amazing estimated 40% of the total world soccer ball market. Its owners are modest about their Islamic faith, but they are pious Muslims and that necessarily shapes their business. The company has a commitment to honesty, going green, providing good benefits to its employees, and helping them develop. It is the only company in its area that also employs women. Its Community Initiative program includes interest-free loans for employees, food for employees during Ramadan, support for the poor and widows, running its own free school, providing funds to the Chamber of Commerce for its Child Labor Elimination Program, providing health care, medicines and electric appliances for prisoners of the Central Jail Sialkot. They are also committed to the study of Islam, notably Islamic finance and business, and sponsor the Seerah (Sira) Study Center at the Government College Women University Sialkot (sic) (Marshall 2020b).29

Whole Food’s Buddhist ethos can reveal itself in commitments to “Be a Servant Leader. Our leaders care about others. We are not driven by our ego’s desire for self-aggrandizement. Instead, we always try to serve the higher purpose of the company, as well as serving all of our major stakeholders…” (Hamer 2018).

On a smaller scale, down the road from me is Whiffletree Farm. Its owners and operators, Jesse and Liz Straight, are converts to Catholicism and have been strongly influenced by Wendell Berry, and from both have made a commitment to a life centered on family, the community and “rootedness.” They had never farmed but Jesse says “We came into the Church at the Easter Vigil of 2009… That next Monday we moved back to Warrenton to start the farm.” Later, their friend Jonathan Elliott joined the team after graduating with a Master’s degree in theology from the Dominican House of Studies in Washington. The farm is committed to organic, sustainable and humane practice. “In terms of the farm… it is understanding as much as we can about God’s world, how God made the natural system and how we can work within that. In a posture of humility and gratitude and attentiveness, we want to follow God’s order, rather than imposing our own” (Greeley 2017).

To be sure there are many other farmers committed to similar practices, sometimes without an explicit religious commitment, though many have a deep environmental quasi-religious disposition, but the Straight’s practices are driven by their religious commitment. They are also, at the same time, real business practices. They have a summer intern program at no cost for aspiring farmers to learn sustainable farming practices as well as the skills to run farming basics. “Plus, our program is distinct in that we have weekly business meetings where we teach the interns on how to actually run this kind of business, not just raise the food!” It is a business—a thoroughly religious business.

These examples and many others illustrate that, even for-profit corporations can have religious duties and embody religious convictions.30 Because of this, for-profit entities deserve religious freedom protections along with their non-profit, NGO, and congregational counterparts.

Of course, all these enterprises, whether non-profit or for-profit, fail at fully following through on their religious commitments, at times strikingly so. Many are compromised and divided, and some are hypocritical. However, if, say, a Christian enterprise fails in many ways, it does not mean that it is not a Christian institution. It simply means that it is a religious institution that fails to live up to all its professed commitments. Similarly, the fact that many individual believers are also compromised, divided, and hypocritical does not mean that they are not real, albeit failing, believers who deserve religious freedom protections. I would expect this of institutions, just as I do of individuals, and would be surprised and inspired by any that did not so fail. Such exceptional individuals could be candidates for sainthood, and perhaps some institutions could be for corporate sainthood, if such could exist. However, they would probably have to settle for better business awards.

Additionally, obviously, not all claims of institutional religious freedom should be granted, any more than should all individual claims for religious freedom, or indeed individual claims for any other rights. There will be hard cases and tradeoffs with competing individual claims to non-discrimination. I wish here simply to argue that institutional religious freedom claims can be valid and important.

9. Why Defend Institutional Religious Freedom?

There are at least four reasons for recognizing the importance and validity of institutional religious freedom. A major one is the vast amount of good work that such institutions do. As Lester Salamon has observed, “Religious institutions are near the epicenter of American philanthropy: they absorb well over half of all private charitable contributions, and account for a disproportionate share of the private voluntary effort… No account of the United States nonprofit sector would therefore be complete without some attention to the religious institutions the sector also contains” (Monsma and Carlson-Thies 2015, p. 8).

Earlier I gave the example of some Catholic organizations and World Vision. Since much of this good work is well described by other researchers in this project, I will here give only two examples (Pellowe 2020; Buckingham 2020).

The average cost of an education at a Coalition of Christian Colleges and Universities (CCCU) institution is almost USD 10,000 lower than the price of the average four-year, private, nonprofit college; the loan default rate for CCCU students is nearly half the national average, and they have the highest loan repayment rates (Ooms 2020; Cheng and Sikkink 2020; CCCU 2017).

Here is a listing of some Catholic educational and humanitarian activities in 2018 (Zenit 2018):

Catholic schools and Education

In the field of education, the Catholic Church runs 72,826 kindergartens with 7313,370 pupils; 96,573 primary schools with 35,125,124 pupils; 47,862 secondary schools with 19,956,347 pupils. The Church also cares for 2,509,457 high school pupils, and 3,049,548 university students.

Catholic charity and healthcare centers

Charity and healthcare centers run in the world by the Church include: 5287 hospitals, most of them in America (1530) and Africa (1321); 15,937 dispensaries, mainly in Africa (5177); America (4430) and Asia (3300); 610 Care Homes for people with leprosy, mainly in Asia (352) and Africa (192); 15,722 Homes for the elderly, or the chronically ill or people with a disability, mainly in Europe (8127) and America (3763); 9,552 orphanages, mainly in Asia (3660); 11,758 creches, mainly in Asia (3295) and America (3191); 13,897 marriage counselling centers, mainly in Europe (5664) and America (4984); 3,506 social rehabilitation centers and 35,746 other kinds of institutions. (Grim 2019).

A second reason is the good of the people within the organizations themselves. Joseph Raz (1986, p. 208) defended the idea of group rights because individuals have an interest in being part of groups and institutions: “They are a way of referring to individual interests which arise out of the individuals’ membership in communities” (Colombo 2014, p. 57). Similar points were made by Justice Alito in his majority opinion in Burwell v. Hobby Lobby: “A corporation is simply a form of organization used by human beings to achieve desired ends… [Thus,] protecting the free-exercise rights of corporations like Hobby Lobby… protects the religious liberty of the humans who own and control those companies.” (Burwell v. Hobby Lobby 2014)31, Raz and Alito perhaps go too far in reducing institutional interests to individual ones, but certainly many of the people who benefit from institutional religious freedom are the people within the organizations—their members, workers, shareholders, funders, supporters. Additionally, while the institution itself may have rights and freedoms, it is not the institution itself that feels happy or sad, empowered or distraught—it is its living members and supporters who do so, and they are the ones who will suffer if the organization is denied its religious freedom. The crushing of a religious institution is the crushing of many of the lives of the people who are within it. The denial of proper freedom to a religious institution is the denial of the dignity of those within it.

A third reason is that it helps maintain a network of robust, varied institutions that are essential to the wider aim of maintaining a healthy civil society. As noted above, Lester Salamon notes: “account for a disproportionate share of the private voluntary effort…” (Monsma and Carlson-Thies 2015, p. 8). Apart from the economic and humanitarian benefits noted above, they provide myriad opportunities for many kinds of civic participation and pursuit of social purposes that would not exist if most activities were simply state-administered ones. They can help keep society varied and alive and undercut pervasive social alienation.

Important as these reasons are, I will here give more attention to a fourth reason, which concerns the nature of these institutions (Schwartzman et al. 2016, pp. xiii–xxv). As noted above, “Religion is an interconnected set of beliefs and practices through which people answer the grand questions of life by seeking to live in relationship to the ultimate power or powers that grounds reality and is present to them in the real circumstances of their lives.” In religion people are seeking to order their life to what they believe to be true and good—in this sense people are religious beings and religion is part of human flourishing. One of the arguments for individual religious freedom is that to deny it necessarily denies a key aspect of a person’s humanity and dignity (Shah and Friedman 2018). Robert Wilken’s (Wilken 2019, p. 1) work describing the Christian origins of Western religious liberty is that “Religious freedom rests on a simple truth: religious faith is an inward disposition of the mind and heart and for that reason cannot be coerced by external force.”

Denying religious freedom denies what lies at a person’s heart, tries to make them what they are not, and it denies them the ability to live out what they are (Trigg 2012). It also often asks them to do something impossible, since our beliefs are usually not subject to our will—we cannot suddenly decide by an act of the will to believe something, instead we discover, sometimes slowly, that we do or do not believe something. Religious freedom has an intrinsic quality: it is what John Finnis (2011, pp. 89–90) calls a “basic human good” (Smith 2017a, pp. 204–6).

Similarly, denying religious freedom to a religious institution denies its nature as a religious institution. It subverts it and how it goes about its work, its religious mission. Religious institutions are tied to a purpose, a calling, a vocation. If that calling is denied or subverted, the institution loses its raison d’être.32 As Cécile Laborde notes, “A religious association that is unable to insist on adherence to its own religious tenets as a condition of membership is unable to be a religious association” (Laborde 2017, p. 179).

To understand these missions and vocations, we need to consider the nature, purpose, and relations between particular institutions.

10. Distinction Not Separation

Particularly in the United States, those who object to almost any government restriction on religious institutions often maintain that they assert the power of the state over churches and other religious bodies, and are, therefore, both normatively wrong and, in America, violate the First Amendment. However, across the world, religious bodies and states are nearly always intertwined, otherwise we would not have many court cases about their relationships and respective authority. In the U.S., for example, despite the courts moving away from the term, people still often use Jefferson’s famous extra-constitutional metaphor of “the separation of church and state” as shorthand to refer to the religion clauses in the First Amendment and to a normative view of government and religion generally. In this sense, it is usually a simple, if naïve, restatement of the respective different authorities of these bodies, properly called the “doctrine of the two” by Oliver O’Donovan (1996, p. 214), ultimately reflecting Pope Gelasius’ description of the two swords in his 494 A.D. letter to the Emperor Anastasius:

“There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power… If the ministers of religion, recognizing the supremacy granted you from heaven in matters affecting the public order, obey your laws, lest otherwise they might obstruct the course of secular affairs by irrelevant considerations, with what readiness should you not yield them obedience to whom is assigned the dispensing of the sacred mysteries of religion.”33

However, sometimes the word “separation” is used not merely as shorthand for the First Amendment and instead is taken in a quasi-literal sense to mean that the state and religious institutions are or can actually be somehow separated, sealed off from one another. During the COVID-19 pandemic, churches resisting government orders to ban or restrict in-person worship have, placing stress on church authority, offered arguments that appear similar to the separationist views of several secular bodies.

In July 2020, John MacArthur, an influential conservative pastor, who had earlier followed government guidelines on church opening, said that his Grace Community Church would, henceforth, remain open. MacArthur argued that, inter alia, “while civil government is invested with divine authority to rule the state,” no biblical texts grant “civic rulers jurisdiction over the church.” He added “Christ, not Caesar, is head of the church. Conversely, the church does not in any sense rule the state. Again, these are distinct kingdoms…” He also stated that “God has not granted civic rulers authority over the doctrine, practice, or polity of the church. The biblical framework limits the authority of each institution to its specific jurisdiction… government officials have no right to interfere in ecclesiastical matters in a way that undermines or disregards the God-given authority of pastors and elders” (MacArthur 2020; Peaceably Gather 2020; Weckesser 2020). MacArthur alludes particularly to authority over the “doctrine, practice, or polity” of the church, which might nuance is position. However, Tim Thompson, the founding pastor of 412 Church Murrieta in Riverside County in Southern California, which also resisted government restrictions, stated that “This has everything to do with understanding that we live in a democratic republic, and there is a concept of the separation of church and state.” “And it’s weird, because when the church tries to interact with the government in any way, everybody is quick to throw separation of church and state in the face of the church… But when the state tries to interfere with the church, nobody’s quick to throw it in their face” (DeSoto 2020). In general, these appeals are framed not on constitutional, legal, or prudential grounds but in universal terms of separation of church and state (Littlejohn 2020; Inazu 2020).

On the legal front itself, by the 1970s, the U.S. Supreme court had found that attempts to use a “wall of separation” lead to a “blurred, indistinct and variable barrier depending on the circumstances of a particular relationship” and that “There is no exact science in gauging the entanglement of church and state” (Roemer v. Maryland Public Works Bd 1976).34

This reflects the fact that church and state are not two atoms that never touch, akin to Leibniz’ windowless monads: they interact with each other according to their own mission and jurisdiction. As Gelasius argued, the emperor has supremacy in temporal matters, which members of the church should follow, and the church has authority in the “sacred mysteries of religion,” which the emperor should follow. He even refers to them as “two trained and specially qualified professions” (O’Donovan 1996, p. 203). They are not sealed hermetic realms, but may have limited, circumscribed authority over the same things (O’Donovan 1996, pp. 167, 203).

Hence, a government might legitimately close buildings, including church buildings, if a fire marshal properly pronounces the structure unsafe. Even in actually constructing church buildings, churches must and do willingly follow government fire and building codes. They accept proper government restrictions on the nature of their sanctuary. Churches, synagogues, mosques and other religious institutions are affected by zoning, parking, traffic, noise, and health regulations. This can go further, as Brad Littlejohn (Littlejohn 2020) notes, “The magistrate cannot ban a minister from preaching the Gospel; but if the minister commits a crime, he may certainly be detained and imprisoned, which may mean that a particular congregation has to go without a preacher for a time. Indeed, he might even be detained and imprisoned for something he says in his preaching, if he was inciting a riot or speaking treason…”

In turn, churches have criticized and denied communion to politicians who they believe are violating church teachings in the laws they make or enforce, and it is not, so far, in legal dispute that a church can decide for itself who may receive communion. This is a type of authority over politicians: not the power of the sword but a discipline over the sacraments. Our secular age may regard this as minor opprobrium, but sincerely believing politicians, and also some others with their eyes on the polls, may take it more seriously. It is the power not of the sword but of the word and sacrament.

These instances illustrate that church and state are not hermetically sealed bodies but may have authority according to their respective missions as long as they do not seek to usurp the proper role of the other. The church’s authority is a doctrinal or moral one, it should not try to take over governmental power or use physical coercion or impose financial burdens, such as taxes, on non-members.35 A government may use coercion, but it should not try to dictate a church’s doctrine or mission. This is an illustration of what Alfred Stepan (2000) called the “twin tolerations,” “the minimal boundaries of freedom of action that must somehow be crafted for political institutions vis-à-vis religious authorities, and for religious individuals and groups vis-à-vis political institutions.”

Of course, these examples concern a situation conceptually simplified as if there were only two relevant actors, when in fact there were more—a situation greatly intensified in the modern world wherein there are multiple differentiated relations of authority. These also arise in many contexts that are not particularly religious. For example, a professor has an academic authority over a student. She can authoritatively set standards for the required curriculum and grade students’ work. One of those students may have a different authority over the professor: if the student were a policeman doing night classes and the professor was speeding then he could issue her a summons, regardless of the fact that in an educational setting she is a professor who can grade or even fail him. Indeed, even a police officer investigating a teacher for, say, embezzling department funds would, if actually enrolled in her course, need to accept her grading authority. Each has authority over the other but only in a particular and focused way, depending on the type of activity and institutional setting in which they are operating.36

Similarly, an employer could potentially fire employees who are clearly not doing the job for which they were hired. However, such an employer may not hit them, or arrest them, or excommunicate them, or suspend their library privileges.37 Institutions and people can have a particular type of authority over others, and at the same time be subject to the others’ authority in a particular way. We are each and all woven into networks of a multitude of particularized authorities.

11. Defining Features of Institutions

Clearly, not everything that a religiously defined institution, or non-religiously defined institution, does should be legally defended or protected. Hence, especially given the broad range of institutional authorities and jurisdictions, we need to clarify what it is that that should be legally protected. A range of authors have recently stressed differentiated authority and responsibility in society and come to distinct but parallel analyses (Sheahan 2020).

Michael Walzer in his Spheres of Justice elaborates a complex theory of justice and equality by arguing that societal institutions are qualified by the “internal meaning” and “distinct goods” of different spheres of society, such as the market, or education, or kinship, or the church. “We need to respect the internal meaning of these areas and how they shape their structure. Justice is relative to social meanings” (Walzer 1983, p. 312). He adds that we “must recognize in its everyday politics the real autonomy of distributive spheres” and that the First Amendment itself “is a rule of complex equality. It does not distribute grace equally: indeed, it does not distribute it at all… [I]t leaves all believers in charge of their own salvation” (Walzer 1983, pp. 317, 245).

Luke Sheahan stresses the necessity of protecting the “functional autonomy” of associations. This requires safeguarding its ability to follow its “central tenets,” activities that are essential to the life of the group and its ability to maintain its “functional integrity.” This, in turn, requires that we “take into consideration the tradition of the group” and the way in which its “particular culture may have grown organically from the ends to which the association was established and to which members of the group have consented. “Interference with tradition, the internal norms and ways of being, is an interference with the functional autonomy of the group” (Sheahan 2020, pp. 148–49).

Stephen Smith stresses a “jurisdictional” approach to institutional rights, something analogous to the idea of sphere sovereignty, which I will discuss below. He admits that proponents of “church autonomy (including myself) have sometimes been less than clear about what exactly they are advocating.” He also occasionally uses the language of “spheres” (Smith 2016, p. 21). His focus is on protecting “central Church concerns” which he avers can be very different from organizations that are professedly not religious (Smith 2016, p. 36). “An HMO or a country club can admit, say, Hindus or atheists without in any way altering its essential mission: a Christian church that admits Hindus and atheists as full members and officers will be compromising its character as a Christian church” (Smith 2014, p. 161).

Cécile Laborde has similar concerns in her development of what she calls ‘minimal secularism.’ She emphasizes that the general category of religion must be ‘disaggregated’ in its multiple dimensions and, in seeking to determine what religious institutions and religious practices should be protected. She asks: “which particular interests, value and relationships are promoted by religious groups, such that they can be granted special rights of exemption from anti-discrimination laws” (Laborde 2017, p. 173).38 She holds that the groups must be voluntary, i.e., people can leave without undue cost, and they must be identificatory: “they are groups that individuals join to pursue a conception of the good that is central to their identity and integrity” (Laborde 2017, p. 174). These groups also have a “coherence interest” to live by “their expressed standards, purposes, and commitments” (Laborde 2017, p. 178). They may also have “competence interests,” which include a “special expertise in the interpretation and application of those standards, purposes, and commitments,” that cannot properly be exercised by the state (Laborde 2017, p. 191).

Paul Horwitz (2013) describes what he calls “First Amendment Institutions, such as universities, schools, newspapers, churches, libraries and so forth” which provide the actual context in which most First Amendment related activities take place. He argues that, because of these contexts, it is difficult and inadvisable to try to have one rule or law that fits them all. The result of trying to do so is that “Again and again, courts abandon, or carve out exceptions to, the context insensitive rules that they assert are the very foundations of the rule of law, and certainly of the First Amendment” (Horwitz 2013, p. 7). This leads to incoherence in the legal doctrine, which is leading to the growing attention to institutional context that is growing in jurisprudential circles.

Horwitz’ focus is on organizations, which are “groups of individuals bound together by some common purpose to achieve certain objectives” (Horwitz 2013, p. 11). He does not discuss specifically religious institutions at length and his primary focus is on free speech issues. However, these can overlap with and can be analogous to religious freedom issues: if institutions can have free speech rights, why cannot they have religious freedom rights?

First Amendment Institutions are “stable and established” and “self-regulating.” “Their actions and policies are influenced by norms and practices that have been deeply woven into each institution during its long history” (Horwitz 2013, p. 15). This means that a proper judicial stance toward them should recognize their “institutional autonomy and give them judicial deference” (Horwitz 2013, p. 18). Horwitz believes that there is “a strong case for treating religious entities as First Amendment Institutions and granting them a significant degree of legal autonomy,” though not any claim to absolute autonomy. He even, like Walzer, describes them as “spheres”—“a sovereign realm that operates alongside the state and with which the state is substantially forbidden to interfere” (Horwitz 2013, p. 175).

This leads Horwitz to a discussion of Abraham Kuyper, who was, inter multa alia, Prime Minister of the Netherlands in the first decade of the twentieth century. This reference introduces an insufficiently known Protestant stream in modern pluralist thought that has developed useful distinctions and concepts that can help clarify institutional religious freedom issues regardless of one’s religious views. It is worth outlining at a little more length, though I shall relegate more technical aspects to the notes.

Referring to European as distinct from English-speaking thought, Frederick Carney maintains that the “common character of all associations in Calvinist political literature… is neither individualist nor absolutist … Rather it asks what the vocation (or purpose) of any association is, and how can this association be so organized as to accomplish this essential business. Authority (or rule) becomes a function of vocation” (Carney 1966, p. 53).39 Max Weber also used the notion of the vocation of spheres in society that are shaped by the pursuit of a particular good (Weber 1946, pp. 77–156). In line with this, Kuyper propounded a doctrine of “sphere sovereignty” that maintained that different social entities had their own type of sovereignty that the state is bound to respect, though it must adjudicate disputes between the different spheres, and correct oppression within them.40 Horwitz notes the similarities between Kuyper’s views and the “institutional turn in the First Amendment” (Horwitz 2013, p. 179).

12. Differentiated Responsibility

Kuyper emphasized an idea of sphere sovereignty but, as David Koyzis notes, he expounded the notion intuitively and did not really give it any “systematic theoretical justification” (Koyzis 2019, p. 238).41 The term “sphere sovereignty” is also an unfortunate one, in that “sovereignty” might imply that institutions are somewhat like the state, while “sphere” suggests the image of something sealed off from others, reminiscent of a stress on separation in some American First Amendment jurisprudence. A better term, suggested by Jonathan Chaplin and others, is “differentiated responsibility.” Similar to church and state, these spheres are not atoms that never touch: they interact with each other according to their own mission and jurisdiction. This idea was subsequently developed at great length by Dutch legal philosopher Herman Dooyeweerd.42 His work is complex with many neologisms, so I will here draw on Chaplin’s excellent synopsis, adaption and criticism (Chaplin 2011).43

Dooyeweerd uses the term “sphere sovereignty” in several senses and the most basic one refers to irreducible aspects of reality.44 Here, there are some parallels with Michael Oakeshott’s (1933) “modes of experience” or John Finnis’ notion of “basic human goods.” For example, he distinguished the aspect of faith from the ethical, something close to what Luther had in mind when he said we are saved by faith not works. The ethical can be distinguished from the juridical in that public law can secure justice but not love or friendship, or it can require employers to pay a minimum wage or mandate other working conditions, but not force them to treat workers with dignity.45 These aspects are not posited a priori but are to be grounded in our experience and investigated empirically and subsequently refined, dropped, or added to as needed.46

Particular institutions or organizations have a distinct relation to one of these aspects and are typified by what he calls their “leading aspect,” what we might generally call their “structural purpose.”47 For the state this is the juridical function—the establishment of justice (or just law). Clearly the state also has economic, aesthetic, social and many other aspects—in fact, any and all societal organizations always necessarily function in all the aspects, which is why an economic or educational enterprise can have a religious side. However, these various aspects are shaped by and led by the leading aspect. For example, the state does not seek to maintain justice in order to carry out economic activities per se but, normatively, it carries out economic activities in order to support its leading function of establishing justice in the public sphere. Similarly, a business will certainly have a juridical side, perhaps legal incorporation, and social and other sides, but these are in the service of its economic aspect. A political party may run a school to train its cadres but does not thereby become an educational institution; its educational function is in the service of its political one. It could drop its educational activities without ceasing to be a political party, whereas a university that dropped its educational activities would cease to be a university. A university might employ full time political lobbyists, but it does not thereby become a political organization. Associations and organizations have a different character according to their leading aspects. Different associations with different leading aspects function in different ways and should not be reduced to one another.

13. Competence and Jurisdiction

Richard Garnett writes that the reason that courts should avoid adjudicating religious and theological disputes is not per se that they lack the “intellectual competence” but that there is a lack of secular jurisdiction over such questions…” (Garnett 2016, p. 49). However, if an organization is shaped by its leading aspect, then these two reasons will be intimately connected. If a state court tries to resolve a theological matter or formulate a correct doctrine it will start to imitate a church or mosque, and to act as a priest or rabbi.48 It is taking over an activity that typifies an organization whose leading function is faith and in order to carry out this activity it will necessarily have to do the type of things that churches and similar bodies do, hence it necessarily becomes church-like, a quasi-church. The same would be true if a government sought to take over academic decisions in a university: it would need to function as an academy in making scholarly judgments, hence it takes on an academic role and becomes itself a quasi-academic institution. Similar analyses can be applied to families, social clubs or corporations. Their jurisdiction is intimately tied to their leading function and hence their competence.

Each of these institutions has a particular aspect that shapes how it functions and that has an irreducible quality so that if someone or some other organization wants to do what they do, it will necessarily become like them. Similarly, if a church tried to raise an army or impose its views by physical force then it will be imitating a state and will develop the character of a state, as churches have done. When a company, such as the British East India company, the Vereenigde Oost-Indische, or the Xinjiang Production and Construction Corps have imposed political control on India, Indonesia, or Xinjiang, the have required armies and necessarily became quasi governments wherein the intertwining and confusion of the economic and juridical aspects leads to widespread brutality and exploitation. Their economic drive necessarily subverts justice.

As Burke (1991, p. 283) said: “the India Company became to be what it is, a great Empire carrying on subordinately (under the public authority), a great commerce. It became that thing which was supposed by the Roman Law so unsuitable, the same power was a Trader, the same power was a Lord… In fact, [the Company] is a State in Disguise of a Merchant, a great public office in disguise of a Countinghouse…” (Murray 2007). Any government can be unjust, and any company can be unjust, but when a company becomes a quasi-government, it cannot be anything other than unjust. There is a mode of activity that typifies particular institutions. If others try to imitate or subvert this, they start to remake themselves in this image and distort and deform their own character.

14. Leading Function and Vocation

These authors I summarized earlier—Walzer, Sheahan, Smith, Laborde, Horwitz and Kuyper—use expressions such as “internal meaning,” “distinct goods,” “functional autonomy,” “central tenets,” “central Church concerns,” “central to their identity and integrity,” “coherence interests,” “bound together by some common purpose,” “norms and practices that have been deeply woven into each institution,” “essential business,” “vocation,” and “sphere sovereignty.” These expressions hint at different things but they all hold that it is the core, defining structure, vocation and mission of an institution that is central to understanding what about it should be free.

However, these terms, with the possible exception of sphere sovereignty, conflate two things, an organization’s type and its mission or vocation. It is important to stress that an institution’s leading aspect or “structural purpose’ and its mission are not the same thing. A leading aspect tells us what type of institution it is—that, for example, it is an economic not a juridical/political body. However, businesses, while still remaining economically qualified entities, may have varied goals, missions, vocations. Some economic entities may be driven by the belief that their goal is simply to maximize returns to shareholders. Others, such as the examples of Wegmans and Whiffletree above, seek to shape their economic activities in a particular way that reflects their religious beliefs, but they nevertheless still remain economically qualified organizations. Similarly, states may follow very different policies according to their political beliefs. The governments of Belgium and Bangladesh vary in their structure and policies, but they are recognizably of the government type. The duties and vocation of the Senate and the Supreme court are different, but they are both political/juridical bodies.

In protecting genuine institutional religious freedom, as well as other freedoms, we need to be aware of both of these dimensions. First, if a company tries to take over the mode of activity that typifies a government, as in the example of the East India Company above, then it distorts its own role and that of the other institutions. In turn, governments need to be aware of the different modes of activity of other bodies, such as companies, universities, and churches. An institution first needs to be free to be the type of institution it is. Secondly, it also needs freedom to follow its particular religious beliefs, to be able to act according to its own mission. Denying religious freedom to an institution subverts it and how it goes about its work.

The analyses by the authors that I briefly summarize above have significant differences from each other, but there does seem to be a family relationship or, to shift metaphors, they live in the same neighborhood. Between them, they stress something close to both leading aspects and purposes, missions or vocations. Horwitz and especially Walzer argue for something close to leading aspects: the former stresses “norms and practices that have been deeply woven into each institution” while the latter emphasizes how spheres’ “internal meaning” will “shape their structure.”

Sheahan, Smith, and Laborde argue for something closer to a mission or vocation: Sheahan refers to “central tenets” and “functional integrity,” Smith to “central Church concerns,” and Laborde maintains that groups have a “coherence interest” to live by “their expressed standards, purposes, and commitments.” Similarly, in commenting on Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, Garnett (2020) says the court’s inquiry is properly “a functional one. The limits on secular authority are determined not merely by an employee’s title but also, and more importantly, by his role in carrying out the organization’s religious mission. The issue is not what they are called, but what they do.” Justice Alito stressed “core responsibilities” when he wrote in this case “Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission… The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.” (Our Lady of Guadalupe Sch. V. Morrissey-Berru 2020).49

Since, both the type and the purpose of an institution need to be recognized in religious freedom, what needs to be protected is the particular practice that typifies the organization. It needs the freedom to be what it is and to live out a religious commitment. If either of these is usurped then the institution ceases to be what it was, if its calling is denied or subverted the institution loses its raison d’être. It is hollowed out.50

Cécile Laborde suggests that this type of analysis might, in some cases, properly lead to some restrictions on the present scope of powers of religious institutions in the U.S. Chief Justice Roberts wrote in Hosanna-Tabor that demanding that a church “accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes on more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Additionally, the “Free Exercise Clause… protects a religious group’s right to shape its own faith and mission through its appointments.” The case “concerns government interference with an internal church decision that affects the faith and mission of the church itself” (Hosanna-Tabor at 706) (emphases added).

Laborde (2017, p. 186) suggests that, in understanding the rights of religious institutions, we need to focus not on the organization as if it were a black box, but on the activities and functions that are related to its “core purpose,” its doctrine and mission. Hence, she suggests that a “woman cannot complain of gender discrimination when she is excluded from the clergy by the Catholic church, because the commitment to an all-male clergy is… central to Catholic doctrine.” However, in matters not related to its “core purpose” the activities of an institution might be limited. Hence, “a woman could bring a discrimination suit against a liberal protestant church… that is committed to gender equality.”

15. Confusions of State and Non-State Norms and Conduct

One reason that many people are suspicious of religious institutions making distinctions about their purposes, work and personnel based on their beliefs is that they suppose that persons and non-governmental institutions ought usually to be subject to the same rules as the government itself. Societal institutions come to be considered as governments writ small and subject to the same rules. As Julian Rivers (2010, p. 36; 2019) notes, “transforming religious individuals and associations from the subjects to the objects of human rights standards carries with it an enormous risk to existing standards of liberty and non-discrimination. Human rights were primarily designed as an ethic for Governments, to protect (among others) religious individuals and groups from their excesses.” In this vein, Nancy L. Rosenblum critiques what she calls a ‘logic of congruence’ in which non-state associations are made subservient to the purpose of a liberal state. “[I]n its capacity as sovereign, government attempts to enforce conformity with public principles should stop far short of the censorious position that looks on associations, including religious groups, as private boot camps for citizenship. This stern pedagogical perspective dictates that the internal lives of associations be made to conform to public norms” (Rosenblum 2000, pp. 187–88).

This leads to what Mark Movsesian (2019, p. 714) calls “equality as sameness.” This has been a major problem in Canada where the Supreme Court has begun insisting that private associations must abide by “Charter Values,” that is the “values” purportedly contained in the 1982 Canadian Charter of Rights and Freedoms (Marshall 2020c).51 Here, a legal bill of rights has been transmogrified into a set of “values,” whose legal and other nature is obscure, and which are then applied to non-governmental institutions.52 Hence, in this view, if the government is believed, correctly, to be forbidden to discriminate on the basis of religious beliefs, then the corollary is thought to be that other institutions in society should not be able to do so either, especially if they receive government funding or relief from taxes. However, as John Inazu (2016, p. 127) writes, “government should not be permitted to demand its own orthodoxy as a condition to obtain generally available benefits.”

Jonathan Chaplin asks the pertinent question, “how far must the public realm itself mandate uniformity of practice…? If the notion of a thickly plural public realm became the default setting (with all appropriate caveats), then an important shift in the burden of justification takes place…” He suggests we might go “from seeing the state as the pre-emptive legislator imposing uniformity… but then conceding (or not) minority supplication for ‘exemption,’” to asking “how state legislation can intentionally harness the strength of plural minorities from the start, with the state being required to justify uniformity where necessary (often it could)” (emphases in original) (Chaplin 2018, p. 291). This would also seem more in line with American constitutional principles that stress government’s role in protecting pre-existing freedom.

One of the reasons for forbidding government discrimination on matters such as religion is precisely so that private institutions, and not only religious ones, will be able to appropriately employ staff and carry out policies according to their own particular beliefs as to what supports their distinctive mission. As Laborde (2017, p. 125) puts it: “the state should be secular so that citizens do not have to be.” Governmental neutrality is intended to be a foundation for a lively and diverse societal pluralism, not for society to become a mirror of the government itself (McConnell 2020).

Eroding this distinction can lead to a deracination of the meaning of public law and to blurring the distinction between governmental limits and private limits. It would tend to treat societal organizations simply as quasi-government agents and, in a soft authoritarianism, eradicate the diverse and distinctive freedoms that are required in a plural society. Religious workers could become subject to the same rules of governmental bureaucracy. For religious institutions, some secularized organizational shells might still remain littering the social landscape, but they will become the pale reflection of so many other institutions. As religious institutions, they will have died.

In his 73rd Sonnet Shakespeare alluded to Henry VIII’s dissolution of the monasteries when they had become inconvenient barriers to his desire to eradicate any ecclesial or other authority contrary to his rule: they had become “Bare ruin’d choirs, where late the sweet birds sang.”53