Gregory P. Magarian (Washington University in Saint Louis - School of Law) has posted The New Religious Institutionalism Meets the Old Establishment Clause on SSRN. Here is the abstract:
Recent religious liberty scholarship has focused on the legal rights of churches and similar religious institutions, as distinct from the rights of individual religious believers. Advocates of “the new religious institutionalism” argue that religious institutions need robust legal rights in order to effectuate their institutional functions and advance their members’ interests. The Supreme Court has fueled interest in the new institutionalism by holding, in Hosanna Tabor Evangelical Lutheran Church v. EEOC, that the Constitution protects churches from legal liability for employment discrimination in hiring ministers. In this essay, Professor Magarian argues that the Establishment Clause should place substantial constraints on constitutional or statutory accommodation of religious institutions. Religious accommodation has always operated in tension with nonestablishment values. Since the Court’s 1990 decision in Employment Division v. Smith, however, courts and scholars have given little thought to that tension, because Smith both neutralized the Free Exercise Clause as a source of accommodations and marginalized the Establishment Clause as a check on accommodations. Calls to increase accommodation of religious institutions compel renewed emphasis on the accommodation-nonestablishment tension. Religious institutions play normatively valuable social roles by aggregating believers’ interests and promoting pluralism in public discourse. At the same time, religious institutions are larger and generally more powerful than individual believers, making the stakes of institutional accommodation higher than the stakes of individual accommodation. Professor Magarian contends that the Establishment Clause, whether understood in neutralist or separationist terms, counsels great caution in expanding institutional religious accommodations. He points to the Court’s Hosanna Tabor decision, narrowly construed, and the administrative resolution of the contraception mandate controversy under the Affordable Care Act as normatively appealing templates for reconciling institutional accommodation with nonestablishment.