This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms and values of the larger community forward. Democratic self-government, in particular, depends for its strength on religious and other private groups that are able to generate and supply novel and unorthodox ideas that make improvements in the status quo possible.
In this article, I address several criticisms that have or could be made of my position, and I clarify and expand my argument in response to these criticisms. I begin by engaging scholars who have viewed my position as one form of a familiar defense of religious group freedom. I am essentially arguing, these scholars say, that religious groups merit special protection from government control because they are good for us; religious groups provide us with important social benefits that would be compromised by state interference. As these scholars observe, this type of defense is subject to a predictable critique. The problem with such an argument is that autonomy has costs as well as benefits, and I have not demonstrated that the benefits associated with a broad right of autonomy outweigh the costs. Indeed, many scholars believe that the balance tips in the opposite direction. The type of broad autonomy that I envision will unleash abuses that will outweigh the benefits that I identify.
In the first part of my article, I clarify and expand my argument as I distinguish it from this familiar form. I have, indeed, pointed to important social improvements generated by religious organizations, but my argument has not been that freedom for these organizations is appropriate because these social benefits outweigh the costs. Rather, freedom is important because we do not now and, indeed, never will have a complete understanding of what is socially beneficial and what is harmful (at least this side of the eschaton). Our understanding of which ideas and forms of life are truly progressive is always imperfect and in the process of development. Autonomy for religious groups is essential because these groups are an important source of alternative ideas that make development and improvement possible.
Indeed, my argument goes even further. When I argue that religious group autonomy is essential to preserve the ability of groups to develop and communicate new ideas that push the larger community forward, I have had in mind something more than a vague idea of social progress or improvement. What I have had in mind is greater understanding of truth, including social and political truth. What is really at stake is this knowledge of truth, and what could be more important?
In the second part of my article, I address several additional objections that are likely to be made in response to these clarifications. These objections relate to the connection that I draw between religious group autonomy and truth. The first of these objections challenges my assumption that freedom will advance our understanding of truth. The second objection challenges the appropriateness of using religious or other comprehensive ideas about truth as a basis for law and political life. The third objection challenges the very existence of the type of truth that I refer to. While my readers may initially react skeptically to the link that I draw between religious group freedom and truth, I hope to demonstrate that this link is not only plausible but also compelling.
Constitutional Law | Politics | Religion Law
Date of this Version
Kathleen A. Brady, "Religious Group Autonomy: Further Reflections about What Is at Stake" (July 2006). Villanova University School of Law Working Paper Series. Working Paper 52.