Sunday, October 16, 2022
Kathleen Brady (Emory), Independent and Overlapping: Institutional Religious Freedom and Religious Providers of Social Services, 54 Loy. U. Chi. L.J. __ (2022):
Roughly two decades ago, scholarly interest in the limits of government involvement in religious institutions exploded. Scholars explored distinctions between the spiritual and temporal dimensions of human activity and identified numerous individual, social, spiritual and civic goods associated with independent religious groups, and from these foundations, they defined and refined areas of protection and immunity from government intervention. A shared premise of much of this work was that religious matters belong to religious believers and their institutions and that the internal governance and operations of these institutions must be kept from state interference. In 2012 this scholarship bore fruit when the Supreme Court recognized a “ministerial exception” from employment discrimination laws and again in 2020 when the Court construed this exception expansively and grounded it in a “broad” and “general principle of church autonomy.”
In recent years, however, the rapid acceleration of culture war battles over family, sexuality and reproductive choice has been pushing a new set of issues before courts and scholars, and these issues have involved aspects of institutional governance that are at once internal and outward-facing. The most vexing conflicts, and those that are the focus of this paper, arise where religious and government entities are working together to advance the public good through programs that are funded by the government or through highly regulated areas of joint activity like health care and child welfare. In these shared areas of activity, both religious groups and governments have important interests as stake, and the values of religious independence and inclusion must also be preserved.
In this article, I examine the regulation of religious providers of health care and other social services and present my analysis as an illustration of a new framework for defining the scope of institutional religious freedom under the First Amendment. This framework draws on the founding era history that informed the adoption of the First Amendment, the earlier lessons of history that shaped founding era perspectives and help to illuminate them, and the judicial doctrine that has drawn on these past lessons and history to articulate and refine specific principles in light of developing challenges and experiences. I also propose my framework as part of charting a new direction for free exercise jurisprudence in the wake of the Court’s 2021 decision in Fulton v. City of Philadelphia. While the Fulton Court declined to revisit precedent limiting most protections under the Free Exercise to instances of religious discrimination, a majority of justices expressed dissatisfaction with the Court’s precedent, and a number of justices seemed to be looking for nuanced and workable approaches adapted to specific categories of cases. I offer such a framework for institutional religious freedom.