Religious institutions and associational freedom in U.S. Supreme Court jurisprudence.

Abstract

My dissertation explores the nature, source and scope of the rights of religious institutions in the American legal tradition. I analyze the Supreme Court’s treatment not only of houses of worship, but of religious non-profits, schools, businesses, and student groups at public universities as well. I argue that the protection of religious institutions should concern all citizens because, to say nothing of the sacredness of freedom of conscience, religious institutions play an essential structural role in democratic societies. Religious institutions and other private, voluntary associations defend individuals against the tyranny of the state as well as tyranny of the majority, which Alexis de Tocqueville described as the “greatest danger” to the American republic.While the current Supreme Court justices have been unanimous in their opinion that houses of worship should possess at least a certain degree of autonomy, they have been much more divided concerning the scope of the rights of other religious organizations. For example, in the 2014 case of Burwell v. Hobby Lobby, only a bare majority of the justices sustained a closely held corporation’s right to exercise religion. Justice Ginsburg, embracing an individualistic understanding of religion and rights in her dissenting opinion, argued that religion cannot be exercised by “artificial legal entities” but only by “natural persons.” In the 2010 case of Christian Legal Society v. Martinez, a five-justice majority effectively denied the expressive association rights of a small Christian student group at a public university by upholding a policy that required every registered student group to accept members, even leaders, who rejected the group’s core beliefs. My dissertation explores these and other cases, demonstrating how a proper understanding of group personhood led to a sound decision in the Hobby Lobby case, and how the Martinez opinion, on the other hand, was informed by an impoverished understanding of associations and community. I analyze inconsistencies in the Court’s jurisprudence concerning freedom of religion and freedom of association; I explore the (individualistic) philosophical assumptions animating the justices’ reasoning in some of these cases; and I articulate the principles that are necessary for the full protection of religious institutions.