Our friend and board member Don Drakeman has a typically smart and interesting response to Prof. Rick Garnett’s excellent piece on the freedom of the church. Over the last few years, Rick has been developing an account of the freedom of the church that depends on the idea of institutional rights (see also Paul Horwitz’s work). 

Don applies the same sorts of methodological insights that he uses in this very good piece about originalism to the idea of the freedom of the church. That is, he considers the sense in which the freedom of the church is, in fact, deemed by the public to be a fundamental right, but also how, as one moves out of the church “sanctuary” and into the world, the world begins to resist. A bit from Don’s piece:

If we were to commission a survey asking, “Should churches have the right of religious freedom?,” I suspect that, except for some parts of académe, the most common response would be: “What is this, some sort of trick question?” After all, two-thirds of the public have recently said that corporations should have “certain religious freedoms.” (From a 2014 “State of the First Amendment” poll that can be found here.) If that many people would, at least in the abstract, give businesses the freedom of religion, it seems likely that nearly all would give that right to churches as well.

It is also likely that the public doesn’t really know what it means for companies, or even churches, to have religious freedom—just that it makes sense. Could we gain more insight on this by considering a contemporary controversy? A “hot button” issue at the moment is what many have called the “contraception mandate.” Here, the pollsters have some interesting data, but first a methodological question: If people are asked about exemptions from the mandate, won’t they just use the question as a proxy for their views on either contraception or healthcare reform, or both? Separating those issues is admittedly hard, but the data may nevertheless tell us something about the public’s sense of the freedom of the church—in particular, what counts as “the church.”

In a March 2012 Public Religion Research Institute poll, Americans were asked if publicly held corporations should be required to provide health plans including contraception at no cost. A total of 62 percent said yes. For “churches, and other places of worship,” only 42 percent said yes. In between were religiously affiliated colleges (54 percent) and hospitals (57 percent). Since the underlying issues of contraception and the Affordable Care Act were the same in each case, the percentages for these three types of institutions should provide us with at least a rough reflection of the public’s sense of the relative strength of each one’s claim for a religiously based exemption.

The take-home here, I think, is twofold. First, the public does seem to believe that there is something to the concept of the freedom of the church; and second, there is a stronger claim for the exercise of that freedom for churches as places of worship than for, say, Notre Dame, Baylor or the country’s large network of religiously-affiliated hospitals.