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Garnett on Religious Liberty

By Lawrence Solum

Richard W. Garnett (Notre Dame Law School) has posted Religious Liberty, Church Autonomy, and the Structure of Freedom (CHRISTIANITY AND HUMAN RIGHTS: AN INTRODUCTION, John Witte, Jr. and Frank S. Alexander eds., pp. 226-238, Cambridge University Press, 2010) on SSRN. Here is the abstract:

What is the ?right to freedom of religion,? a right which our leading human-rights instruments commit us to protecting, and what are the legal and other mechanisms that will sustain and vindicate our commitment? Some mechanisms might be better (or less well) designed for the purpose and so might work better (or less well) than others; some actors and authorities might be more (or less) reliable and effective protectors than others. In other words, the project of protecting human rights ? including the right to religious freedom ? involves not only reflecting on human goods and goals, but also wrestling with questions about institutional design and competence.

This chapter considers both the content of religious freedom and the ways it is protected and promoted. It proposes, first, that the ?right to freedom of religion? belongs not only to individuals, but also to institutions, associations, communities, and congregations. Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace, churches have the right to select the ministers they will ordain.

Next, it is suggested that the right to church autonomy is a structural mechanism for protecting both the freedom of religion and human rights more generally. The relationship between the enterprise of protecting human rights and religious communities? right to self-determination is a dynamic, mutually reinforcing one. Human rights law, in other words, protects church autonomy ? it protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, and orthodoxy, etc. ? and, in turn, church autonomy promotes the enjoyment and exercise of human rights. This mechanism is, John Courtney Murray thought, ?Christianity?s basic contribution to freedom in the political order.? If we understand and appreciate this contribution, we will better understand and appreciate that often misunderstood and misused idea, ?the separation of church and state.?

Highly recommended.

Full post as published by Legal Theory Blog on April 08, 2010 (boomark / email).