A Christian Approach to Corporate Religious Liberty [1st ed.] 9783030562106, 9783030562113

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PALGRAVE FRONTIERS IN PHILOSOPHY OF RELIGION

A Christian Approach to Corporate Religious Liberty Edward A. David

Palgrave Frontiers in Philosophy of Religion

Series Editors Yujin Nagasawa Department of Philosophy University of Birmingham Birmingham, UK Erik J. Wielenberg Department of Philosophy DePauw University Greencastle, IN, USA

Palgrave Frontiers in Philosophy of Religion is a long overdue series which will provide a unique platform for the advancement of research in this area. Each book in the series aims to progress a debate in the philosophy of religion by (i) offering a novel argument to establish a strikingly original thesis, or (ii) approaching an ongoing dispute from a radically new point of view. Each title in the series contributes to this aim by utilising recent developments in empirical sciences or cutting-edge research in foundational areas of philosophy (such as metaphysics, epistemology and ethics).

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Edward A. David

A Christian Approach to Corporate Religious Liberty

Edward A. David Faculty of Theology and Religion University of Oxford Oxford, UK

Palgrave Frontiers in Philosophy of Religion ISBN 978-3-030-56210-6 ISBN 978-3-030-56211-3 https://doi.org/10.1007/978-3-030-56211-3

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: wonderland/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

I began writing this book in the months preceding the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby and am finishing it in the midst of a global pandemic that has brought about the temporary, and state-sanctioned, closure of countless religious institutions. Then, as now, the book’s basic argument—that group actions should be the focus of corporate religious liberty disputes—still holds. Why this holds has to do with the enduring operation of practical moral reason: Group actions are executed by coordinating individuals; and actions, insofar as they constitute the self, are an important subject of moral evaluation. The significance of this argument cannot be overstated. Amid disputes over church freedoms and religious exemptions for-profit firms, rights— whether of individuals or of groups—give currency to the contemporary debate. But the concept of rights, while useful for moral deliberation, can too easily succumb to secular liberal narratives that rob (nonstate) groups, or group actions, of their inherent moral value; as a result, too much emphasis is placed upon individual rights-holders and the allpervasive rights-protecting state. Stuck in such paradigms, even religious communities find themselves speaking no differently than their secular

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liberal counterparts. Their ability to morally deliberate on their own terms—with regard to virtue, right social action, and ultimate ends— diminishes: thus the need for an alternative approach to corporate religious liberty, one that affords a wide range of moral concepts for practical moral reason. But with whose practical reason is this book most concerned? First and foremost, this book seeks to inform the moral deliberations of theologians and their church communities, especially as they wrestle with religious liberty disputes involving houses of worship, religious nonprofits, and for-profit corporations. Drawing upon modern Roman Catholic and Protestant church teachings, this book encourages Christian communities to embrace their ethical and group-ontological heritage so that they might speak with clarity to their own congregations and, in the wider public, to “who[m]ever has ears to hear” (Mark 4:9). This encouragement, however, is not given to church communities alone. Another and equally important audience of this book includes political theorists and philosophers of law who puzzle over the ethics of corporate religious liberty. A growing literature—particularly in the field of law and religion—addresses this concern. But the approaches taken typically emphasize political liberal commitments (for example, to equality or freedom) often at the expense of believers’ more wide-ranging perspectives. Hence, this book seeks to articulate a modern theological jurisprudence—an approach that accounts for Christian beliefs, while engaging with the concerns of contemporary political liberals. Undoubtedly, this book’s focus (the who or what of corporate religious liberty) and its dual audience (theologians and political-legal theorists) create challenges for a work of this size: The book covers only Roman Catholic and Protestant perspectives, leaving little room for Orthodox and other theological traditions. It wrestles with disputes in the United States alone and focuses upon free exercise challenges in particular, thus largely passing over establishment questions and insightful international comparisons. And, depending on one’s point of view, the book may concede too much to secular political liberalism or may weigh too theological to be of “practical” use; indeed, for some, it may sit frustratingly in-between.

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These challenges notwithstanding, the book’s moral and metaphysical argument has far-reaching implications. For theologians, it recovers the Christian tradition’s diverse group ontologies and suggests how these too should inform moral deliberation. For political and legal theorists, it makes an ethical case for religious exemptions, showing how group ontology can be used responsibly in this endeavor. And, for both audiences, it encourages thoughtful—even collaborative—moral discourse, with concepts like right action (as opposed to possessive rights) serving as means to carefully navigate the ethics, and ultimate ends, of corporate religious liberty. Will this book satisfy all? I suspect not. But I do hope that its suggested approach might offer truly practical ways forward. Oxford, UK

Edward A. David

Acknowledgments

The support of many groups and individuals have made this book possible. The Faculty of Theology and Religion and Blackfriars Hall— both at the University of Oxford—have provided the ideal environment to research the subjects that inform this book. I am especially grateful to Nigel Biggar, Paul Billingham, Dominic Burbidge, Maria Cahill, Richard Conrad, Richard Ekins, Joshua Hordern, Mark W. Lee, Darren Sarisky, Clare Broome Saunders, and Paul Yowell. Each offered critical comments and generous advice during the book’s development. I am also grateful to Matthew Lee Anderson, Isabella Bunn, Mehmet Çiftçi, Silvana Dallanegra, Virginia Dunn, Justine Ellis, Richard Finn, George Goss, Joel Harrison, Donald Hay, Robert W. Heimburger, Peter Heslam, Mary Johnstone-Louis, Simon Kopf, Michael Lamb, William Maddock, Neil Messer, Emilie Noteboom, Paul Shakeshaft, Joshua Vargas, and Elizabeth Wells for their support and insight. In the United States, I am thankful to the librarians at Harvard Law School, the Catholic University of America, and the University of Pennsylvania for use of their facilities. Christopher Anadale, Paige Hochschild, Thane Naberhaus, and the late Germain Grisez—each of Mount Saint

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Mary’s University—inspired me from the very beginning. Fellowships or financial support from the Acton Institute, the Institute for Human Ecology, and the Institute for Humane Studies provided intellectually diverse settings to debate (religious) freedom. Feedback from Joseph Capizzi of Catholic University and ongoing encouragement from Robert J. Matava of Christendom College were invaluable. Sections of the manuscript were presented at the Centre for Catholic Studies at Durham University, Christ Church College at the University of Oxford, the Las Casas Institute at Blackfriars Hall, the Oxford– Hebrew University Conference, the Society for the Study of Theology, the University of Cork School of Law, and the University of Winchester. I am grateful to the conference organizers and for the comments of several participants, including Miodrag Javanovic, Dwight Newman, and Patrick O’Callaghan, as well as Charlotte Baldry, Kaziah Cridge, Gregory Tyler, and Frances Whitworth. I am also indebted to the publishers at Oxford University Press for allowing me to reuse material from my article, “Is Group Ontology Morally Distracting? A Natural Law Approach to Corporate Religious Liberty,” Oxford Journal of Law and Religion 8, no. 3 (October 2019): 641–667. The insightful critiques of the journal’s reviewers have strengthened that article and subsequently this monograph. Special thanks must be given to Brendan George, my editor at Palgrave Macmillan, who was hugely supportive of my research and throughout each stage of the publication process. Lauriane Piette offered expert editorial advice, and Palgrave’s blind peer review further improved arguments made in this book. Of course, all opinions expressed and errors made are solely my own. Finally, I extend my deepest gratitude to the colleagues, friends, and family whose ongoing support has made this book possible. Colleagues at Saïd Business School and Goldman Sachs—especially Charlotte Keenan, Anne-Marie McBrien, Elizabeth Paris, Grant Phillips, Amanda Poole, and Nancy Straates—were ever supportive of my “side gig” in theological ethics. Paul Buchanan, Justine Ellis, and Mark Lee never turned down a good coffee break. And my parents, Romeo and Julia, as well as my

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brothers, Joseph and Alex, were a constant source of encouragement— even with an ocean between us. To them, in particular, I dedicate this book.

About This Book

This book offers a Christian approach to the religious freedoms of organized groups, from houses of worship to for-profit corporations. Challenging the terms of the contemporary debate, this book argues that corporate religious freedoms should chiefly apply to group actions, as opposed to rights-holding individuals or group persons per se. This argument provides moral clarity to free exercise disputes that are often obscured by rights-talk and a lack of civic or moral virtues. Chapter 1 establishes the importance of determining to whom or to what corporate religious liberty applies. This query is then answered in Chapters 2 through 5 with a theory of corporate religious liberty, one informed by the group ontology of Saint Thomas Aquinas and modern church teachings on religious freedom. Finally, Chapters 6 and 7 consider how the supernatural personality of the Church might be reasonably accounted for by law, and how it might positively influence moral discourse over corporate religious freedoms.

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Contents

1 The Ethics of Corporate Religious Liberty 1.1 Corporate Religious Liberty in Context 1.2 Why Moral and Legal Subjects Matter 1.3 A Christian Ethical Perspective 1.4 The Task Ahead

1 4 9 14 20

2

23 24

Corporate Religious Liberty in Church Teachings 2.1 Religious Liberty as Christian 2.1.1 Catholic Social Teaching on Religious Liberty 2.1.2 The World Council of Churches on Religious Liberty 2.1.3 Summary 2.2 The Freedom of the Church 2.2.1 Catholic Social Teaching on the Freedom of the Church 2.2.2 Protestant Conceptions of the Freedom of the Church

25 28 31 33 34 38

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Contents

2.2.3 Summary 2.3 Organizational Exemptions 2.3.1 Ecumenical Statements Against the Contraceptive Mandate 2.3.2 A Catholic Perspective on Organizational Exemptions 2.3.3 A Protestant Perspective on Organizational Exemptions 2.3.4 Summary 2.4 Conclusion 3

4

41 42 44 48 50 54 57

Group Ontology and Skeptical Arguments 3.1 Justice Ginsburg and Group-Agency Elimination 3.1.1 Appropriation of Corporate Theory 3.1.2 Churches, For-Profit Corporations, and Religious Exercise 3.1.3 Christian Ethical Overlap 3.2 James D. Nelson and Group-Agency Reduction 3.2.1 Conscience Reconceived 3.2.2 Active Identification with Business 3.2.3 The Formation of Corporate Conscience 3.2.4 Summary of Ginsburg and Nelson 3.3 Schragger, Schwartzman, and Group-Agency Agnosticism 3.3.1 Dewey’s Empirical Method of Rights Ascription 3.3.2 Conflation of Science and Morality 3.3.3 Correcting Dewey 3.3.4 A Political Liberal Approach 3.3.5 A Christian and Group-Ontological Contention 3.4 Conclusion

61 62 62

98 101

A Modest Account of Corporate Religious Liberty 4.1 Aquinas’s Modest Group Realism 4.1.1 Group Realism and the Christian Tradition

103 105 106

64 65 67 69 73 78 79 81 82 85 87 93

Contents

4.1.2 Modest Group Agency in the Summa Theologiae 4.2 The “Anatomy” of Modest Group Agency 4.2.1 Groups as Social Actions 4.2.2 Particular and Standing Intentions 4.3 The Theory in Outline 4.3.1 Religious Actions and the Freedom of the Church 4.3.2 Religiously Motivated Secular Actions and Organizational Exemptions 4.4 Conclusion

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109 118 118 121 126 126 136 142

5

Political Liberal and Theological Contentions 5.1 Political Liberal Challenges 5.1.1 The Individual–Group Divide 5.1.2 Bridging the Individual–Group Divide 5.1.3 The Primacy and Moral Use of Social Action 5.2 Theological Considerations 5.2.1 The Religious–Secular Distinction 5.2.2 Defining the Term Religious Institution 5.2.3 The Church as More Than Voluntary 5.3 Conclusion

143 144 144 147 154 157 158 164 166 168

6

Integrating the Strong Group Agency of the Church 6.1 The Church as Strong Group Agent 6.1.1 The Animation Requirement and Individual Consent 6.1.2 The Literalness Requirement and the Invisible Church 6.1.3 The Eucharist Makes the Church 6.2 Historical Episodes of Group-Agency Elimination 6.2.1 The Medieval Corpus Mysticum 6.2.2 Locke’s “True Church” 6.2.3 Recovering Strong Group Realism for Rights Ascription 6.3 The Standard Argument

171 173 175 177 180 181 182 187 195 196

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Contents

6.3.1 The Supernatural Personality of the Church 6.3.2 Integrating the Standard Argument 6.3.3 Corporation of the Presiding Bishop v. Amos 6.4 Conclusion

197 201 209 214

From Group Ontology to Christian Moral Reasoning 7.1 Modest Group Realism and Practical Reason 7.2 Strong Group Realism and Christian Moral Reasoning 7.3 Reflections on Current Legal Challenges 7.3.1 Public Accommodations 7.3.2 Clerical Sex Abuse 7.4 Conclusion

217 218 223 230 230 235 241

Bibliography

243

Index

255

About the Author

Edward A. David is Postdoctoral Research Fellow in the Faculty of Theology and Religion at the University of Oxford.

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List of Figures

Fig. 3.1 Fig. 4.1 Fig. 4.2 Fig. 4.3

An interpretation of Schragger and Schwartzman’s empirical method The “anatomy” of Aquinas’s group agent A religious social action and the freedom of the church A social RMSA and organizational exemptions

91 124 135 141

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List of Tables

Table 2.1 Table 2.2 Table 2.3 Table 5.1 Table 5.2 Table 6.1

Religious liberty: Catholic Church and the World Council of Churches Freedom of the church: Catholic Church and the World Council of Churches Organizational exemptions: Catholic and Protestant The group as group-agential action The group-as-social-action and the group-over-time Agents involved in the freedom of the church

32 43 54 151 153 208

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1 The Ethics of Corporate Religious Liberty

In recent years, the U.S. Supreme Court has heard a number of highly contentious cases involving the religious liberty claims of corporate litigants—including houses of worship, religious non-profits, and forprofit corporations. Legal commentators disagree over to whom or to what corporate religious freedoms should chiefly apply. Some argue that rights to corporate religious liberty should apply only to certain types of voluntary associations.1 Others suggest that groups of any type—whether or not voluntary in nature—are of equal moral concern; thus they claim

1 Cécile

Laborde, Liberalism’s Religion (London: Harvard University Press, 2017), chap. 5; Richard Schragger and Micah Schwartzman, “Against Religious Institutionalism,” Virginia Law Review 99, no. 5 (September 2013): 918–85; and Richard Schragger and Micah Schwartzman, “Some Realism about Corporate Rights,” in The Rise of Corporate Religious Liberty, eds. Micah Schwartzman, Chad Flanders, and Zöe Robinson (Oxford: Oxford University Press, 2016), 345–71.

© The Author(s) 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3_1

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that pro tanto rights to religious liberty should extend to groups like forprofit enterprises, as well as to the corporately empowered individuals that may own and control them.2 At their core, these two positions evince a concern over the proper scope and normative ground of corporate religious liberty—with theorists like Cécile Laborde emphasizing individual rights, and those like John Garvey recognizing the rights of groups or organizations. Both positions, of course, do not always recognize one type of right at the expense of the other. Individual-rights advocates admit of group rights, albeit for groups of an explicitly voluntary sort; and group-rights advocates often, if not always, ground their claims with reference to the rights of individuals. Nevertheless, the divide is unmistakable. It is a divide between ultimate normative justifications (individual or group rights) and, by extension, a divide between the most appropriate subjects involved (individuals or groups). It is fairly evident that the individual–group divide has and continues to polarize public discourse around corporate religious liberty. On the one hand, the American Civil Liberties Union states that “eighty-one percent of Americans say the law should not allow companies or other institutions to use religious beliefs to decide whether to offer a service to some people and not others.”3 On the other hand, Becket, a publicinterest group, affirms that “religious freedom protects the rights of individuals to observe their faith at all times” and, notably, in all organizational contexts—“whether at work, at church, in the town hall … or elsewhere in the public sphere.”4 As the Supreme Court made plain in Burwell v. Hobby Lobby Stores, Inc. (2014), such protection may indeed 2 Nicholas

Wolterstorff, “Freedom for Religion,” in Understanding Liberal Democracy: Essays in Political Philosophy, ed. Terence Cuneo (Oxford: Oxford University Press, 2012), 298–304; and Douglas Laycock, “The Campaign Against Religious Liberty,” in The Rise of Corporate Religious Liberty, eds. Flanders et al. (Oxford: Oxford University Press, 2016), 231–42. See also Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism (Oxford: Oxford University Press, 2010), 33 (stating that church autonomy claims can sometimes be referred to as “human rights of religious associations”); and John Garvey, What Are Freedoms For? (Cambridge, MA: Harvard University Press, 1996), 146–47 (defending church autonomy with metaphysically strong claims of group realism). 3 “Religious Liberty,” ACLU , accessed May 9, 2020, https://www.aclu.org/issues/religious-liberty. 4 “Individual Freedom: Protecting the Right to Live According to One’s Conscience,” Becket, accessed May 9, 2020, https://www.becketlaw.org/area-of-practice/individual-freedom/.

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involve corporate decisions to offer services to some and not others.5 For certain individual-rights advocates, this is morally unacceptable and thus justifies persistent, even relentless, opposition to religious accommodations.6 It is no surprise, then, when Douglas Laycock notes that “open hostility to religious liberty is breaking out all around us … [as seen] in the exaggerated reactions to Hobby Lobby, in the hysterical opposition to religious-freedom legislation, and in the growing attacks on exemptions even for religious nonprofits.”7 The individual–group divide is large. It may grow larger still. In this book, I offer a Christian ethical perspective on the observed divide, responding to its underlying question: To whom or to what does corporate religious liberty apply? In short, I propose that corporate religious liberty is best understood to apply to the group-agential actions of coordinating individuals and not to individuals or group persons per se. This proposal, substantiated through a Christian approach to corporate religious liberty, is meant to bridge the individual–group divide; and, just as importantly, it is meant to respond to various challenges associated with that normative debate. The present introduction provides an overview of these challenges, as discerned in political liberal discourse and with respect to Christian ethical commitments. Its primary aim is to demonstrate why this book’s guiding question merits a response from the Christian tradition, inclusive of its moral resources and its ideas about what groups are—that is, its group ontology. Section 1.1 begins by viewing the corporate religious liberty debate from a macro perspective, highlighting disagreements over its appropriate subject-matter, as well as various explanatory reasons behind its current prominence. Section 1.2 adopts a closer perspective, focusing on the book’s guiding question in order to understand what political liberals consider its moral stakes to be. Section 1.3 then offers a preliminary

5 Burwell

v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) (the federal government’s contraceptive mandate violated the religious liberty rights of closely held corporations, as protected under the federal Religious Freedom Restoration Act). 6 See Marci Hamilton, God vs. the Gavel: The Perils of Extreme Religious Liberty, 2nd ed. (New York: Cambridge University Press, 2014), 346, 347–59. 7 Laycock, “The Campaign Against Religious Liberty,” 232.

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reflection upon both the Christian ethical interests in the guiding question and the unique way in which the Christian tradition can respond. Finally, Section 1.4 details how the book’s response, its promised account of corporate religious liberty, will be structured.

1.1

Corporate Religious Liberty in Context

The question concerning to whom or to what corporate religious liberty applies is foundational for a basic understanding, or definition, of the term. Indeed, one’s response to the question illuminates the legal subjects protected and thereby establishes, along means-end reasoning, the moral purposes of corporate religious liberty protections. Given the question’s fundamental moral purpose, it should be unsurprising that subjectbased definitions generate heated disagreement. Let us consider two such definitions and then explore why the associated debate is so ethically polarized. Corporate religious liberty is a relatively new term to American legal discourse, having been popularized by legal scholars Chad Flanders, Micah Schwartzman, and Zoë Robinson in their 2016 anthology, The Rise of Corporate Religious Liberty. Focusing upon the adjective “corporate,” they describe the term as applicable to “any organized body of people—groups, associations, and organizations,” as well as to “those entities that have incorporated under law.”8 This is a broad definition, which encompasses any group-type (from churches to for-profit corporations) and, as stated, is indeterminate with respect to the moral nature of religious liberty itself—for example, whether it chiefly entails a libertyright, claim-right, organizational autonomy broadly understood, or some combination of each. Despite the general applicability and, by extension, the broad appeal of this definition, corporate religious liberty according to Flanders et al. is not the only viable, or morally appropriate, contender. More narrowly

8 Chad

Flanders, Micah Schwartzman, and Zoë Robinson, introduction to The Rise of Corporate Religious Liberty, eds. Chad Flanders, Micah Schwartzman, and Zoë Robinson (Oxford: Oxford University Press, 2016), xiii.

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construed, in regards to both organizational applicability and moral ground, is Cécile Laborde’s equivalent term freedom of association, which she describes as the “right of collective religious autonomy.”9 This term deploys liberal egalitarian commitments to demarcate the types of entities deserving of collective autonomy rights. For Laborde, only those entities that meet strict criteria of coherence and competence can enjoy the privileges invoked by corporate religious liberty. A broader definition, she contends, would risk group domination and disrespect for individual rights and political liberal values.10 The discrepancies between Flanders et al. and Laborde highlight how corporate religious liberty is understood in different ways for diverse moral purposes. While Laborde’s freedom of association is seen as a defense of strictly voluntary associations, corporate religious liberty according to Flanders et al. invites normative justification for any grouptype. Indeed, insofar as the latter conception is organizationally general, it could encourage the development of a form of religious liberty specific to non-church entities, such as for-profit enterprises. This form could sit alongside freedom of association (alternatively, church autonomy or religious autonomy 11 ) and would operate according to its own normative principles. Whether a two-doctrine, or two-theory, conceptualization of corporate religious liberty is morally prudent will be considered below. For now, it is sufficient to note that corporate religious liberty has no settled definition within politico-legal discourse and that, whatever its construal, it is understood according to pre-determined moral positions (such as Laborde’s liberal egalitarianism) that invoke various purposes of law. Hence, disagreement over the proper subject(s) of corporate religious liberty matters ethically—indeed, the normative stakes are high.

9 Laborde,

Liberalism’s Religion, 171. 182. 11The cognate church autonomy is used by Christopher Lund in “Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,” Northwestern University Law Review 108, no. 4 (2014): 1183–1234. Religious autonomy, another synonym, is often invoked by the U.S. Supreme Court. For example, see Hobby Lobby, 134 S.Ct. at 2787. 10 Laborde,

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Before addressing these stakes directly, we turn first to some explanatory reasons behind the rise, or increase in litigation, of corporate religious liberty.12 According to legal scholars Paul Horwitz and Nelson Tebbe, the rise of corporate religious liberty is happening alongside, not despite, a disaffiliation of individuals from organized religion.13 This claim, which falls short of being explicitly causal, suggests that religious conservatives are mobilizing to protect their interests within the culture wars by securing victories at the Supreme Court. These victories are made possible, claim Horwitz and Tebbe, due to the “opening for group rights” afforded by recent case law. For example, Boy Scouts of America v. Dale (2000) and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)14 have been “strategically exploited by legal advocates and sympathetic judges,” such that “advocates recognize that groups now enjoy greater protection than individuals in some areas of law.”15 Another explanatory theory claims that a large administrative state increasingly imposes upon aspects of life that have acute religious significance, thereby encouraging litigation.16 Regulations from administrative agencies, as well as judicial activism from the Supreme Court, have manifested what philosopher Robert George refers to as a “tyrant state,” a state that has coerced citizens through undemocratic procedures and immoral government sanctions.17 In response (the theory concludes), religious

12 Flanders

et al., introduction to The Rise of Corporate Religious Liberty, xv. Horwitz and Nelson Tebbe, “Religious Institutionalism—Why Now?” in The Rise of Corporate Religious Liberty, eds. Flanders et al. (Oxford: Oxford University Press, 2016), 209. 14 Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (the expressive associational rights of Boy Scouts were violated with forced inclusion of an openly gay individual); and HosannaTabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694 (2012) (a church’s school teacher was considered to be a minister for purposes of the ministerial exception). 15 Horwitz and Tebbe, “Religious Institutionalism—Why Now?” 210 (italics in original). 16 Laycock, “The Campaign against Religious Liberty,” 231; Hiram S. Sasser III, “US Attorney Manual Update Signals Hope for Religious Liberty,” Hill , February 21, 2018, http://thehill.com/opinion/civil-rights/374846-us-attorney-manual-update-signalshope-for-religious-liberty; and Ryan T. Anderson, “Obama’s LGBT Executive Order Undermines Pluralism and Religious Liberty,” Daily Signal , July 21, 2014, https://www.dailysignal. com/2014/07/21/obamas-lgbt-executive-order-undermines-pluralism-religious-liberty/. 17 Robert P. George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis (Wilmington, DE: ISI Books, 2001), 129. 13 Paul

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individuals and their organizations naturally seek judicial redress, thus contributing to an increase in litigation. The rise of corporate religious liberty is also discernable on a theoretical level, with at least three notable strands in academic legal discourse. First, there is the topic of state and associational sovereignties. This has brought to the fore political theories of church-state relations dating back to at least the late eleventh century.18 Among political liberals, much ink has been spilt over the type of argument proponents of libertas ecclesiae (or “freedom of the church”) make. Critics wonder whether the term is used in normative or merely historical argumentation.19 While proponents make a convincing case that the term is at least suggestive of a deferential position of the state towards religious associations, it seems that the liberal egalitarian emphasis upon individual rights and upon the state’s ultimate sovereignty has taken the upper hand.20 A second theoretical discussion concerns whether religion is special and therefore worthy of constitutional protection. Liberals, from John Rawls to Laborde, generally do not advocate for the removal of religion from constitutions; but they often claim that religion is not uniquely special for purposes of law.21 This position grounds a growing trend within the legal academy to secularize and “disaggregate” religion to suit liberalism’s egalitarian frameworks. In a climate where religious freedom is given less normative weight, Horwitz and Tebbe note that “group autonomy provides an independent constitutional reason to protect religious associations.”22 Indeed, primary recourse to group rights—as opposed to religious liberty—appears to be a new norm for religious or religiously inspired organizations, especially in situations that involve 18 Richard

W. Garnett, “The Freedom of the Church: (Toward) an Exposition, Translation, and Defense,” in The Rise of Corporate Religious Liberty, eds. Flanders et al. (Oxford: Oxford University Press, 2016), 39; and Steven D. Smith, “The Jurisdictional Conception of Church Autonomy,” in The Rise of Corporate Religious Liberty, eds. Flanders et al. (Oxford: Oxford University Press, 2016), 20–21. 19 Schragger and Schwartzman, “Against Religious Institutionalism,” 932–56; and Smith, “The Jurisdictional Conception,” 31–32. 20 See Smith, 34–37; and Laborde, Liberalism’s Religion, 162. 21 John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001), 28; Amartya Sen, The Idea of Justice (London: Penguin Books, 2009), 303–4, 366–70; and Laborde, Liberalism’s Religion, 174. 22 Horwitz and Tebbe, “Religious Institutionalism—Why Now?” 210.

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religious liberty claims pitted against the rights of women and sexual minorities.23 A third theoretical discussion concerns the historical development of corporate rights jurisprudence at the U.S. Supreme Court. Flanders et al. provide a “corporate turn” narrative that tracks the Court’s recognition of church autonomy rights (from Employment Division v. Smith [1990]24 to Hosanna-Tabor ) as well as its recognition of diverse First Amendment rights for corporate entities (from Citizens United v. Federal Election Commission [2010]25 to Hobby Lobby). Flanders et al. consider both halves of this corporate turn to be “seemingly separate,”26 as if they actually are related—either conceptually (involving corporate bodies at the least) or causally (via doctrinal development from Hosanna-Tabor ’s church autonomy to Hobby Lobby’s for-profit exemptions). The legal historian Adam Winkler provides a different (and, in my opinion, more convincing) narrative of doctrinal development. Winkler’s account begins with the founding of Jamestown by the Virginia Company and addresses the first case that won corporations the ability to sue and to be sued. Winkler then continues through a series of property rights cases, culminating in the “civil rights” era of corporations that began in 1963 and that reached an apex in today’s corporate religious liberty debate. Winkler thus contextualizes the expansion of corporate rights within the long history of Supreme Court jurisprudence,27 thereby improving upon narratives like that of Flanders et al., which suggest a direct and rapid development from one area of doctrine (church autonomy) to others (such as corporate free speech or for-profit exemptions) that are tenuously connected at best. Nevertheless, both 23 John

Finnis, “Darwin, Dewey, Religion, and the Public Domain,” in Religion & Public Reasons: Collected Essays; Volume V (Oxford: Oxford University Press, 2011), 37–38; and Obergefell v. Hodges, 576 U.S. ___ (2015) (the Fourteenth Amendment requires that states recognize marriages between two individuals of the same sex). 24 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (the Free Exercise Clause permits the state to prohibit the sacramental use of peyote and to deny unemployment benefits for individuals discharged for using the drug). 25 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (the First Amendment protects the political speech of corporations). 26 Flanders et al., introduction to The Rise of Corporate Religious Liberty, xv–xviii. 27 Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights (New York: Liveright Publishing Corporation, 2018), chap. 1.

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types of narrative speak to the same moral concern: that legal protections, which at one time were reserved only for natural persons, are increasingly being extended to artificial corporate entities. For many commentators, there is great cause to worry.

1.2

Why Moral and Legal Subjects Matter

Having viewed the corporate religious liberty debate from a macro perspective, I now examine its central definitional, or subject-based, dispute more closely in order to highlight the moral stakes involved. I here focus upon political liberal stakes so as to contextualize Christian ethical contributions, which can be seen to follow the wider secular debate. Three areas are of particular interest: (i) the individual–group divide, (ii) the distinction between group-types, and (iii) the use of group ontology (i.e., the study of what groups are) for the ascription of legal rights. From a political liberal perspective, the individual–group divide is normatively complex, with some theorists clearly favoring individuals over groups, and others showing deference to groups while remaining cognizant of relevant individual rights. Consider the following perspectives. Legal scholars skeptical of group rights, including (to a certain extent) Horwitz and Tebbe, question whether corporate freedoms are compatible with individual liberties. For them, this issue is morally significant not only for the recent growth in corporate rights jurisprudence, but also for the group domination implied.28 Kent Greenawalt, another legal academic, echoes this individualist unease, when he writes: “A common concern about freedom for religious groups is that their freedom can often stand in opposition to maximum religious liberty for individuals against whom the groups act.”29 Laborde, too, explicitly considers overly generous group freedoms to be “exorbitant,” in conflict

28 Horwitz

and Tebbe, “Religious Institutionalism—Why Now?” 210. Greenawalt, Religion and the Constitution, vol. 1: Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 292. 29 Kent

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with “rights against discrimination,”30 and ultimately disrespectful of citizens as free and equal.31 Common among these views is the idea that group rights can harm individuals, undermining their autonomy and their rights to goods or services as promised through constitutional, statutory, or other governmental means. The issue of government provision touches upon a related normative stake—namely, the nature of state sovereignty, especially as seen against the autonomy of religious associations and other non-state organizations.32 For some political liberals, the state must have final jurisdiction over issues pertaining to the rights of free and equal citizens. Lacking this authority, the state is unable to protect its citizens from abusive situations that can occur within organizations or by virtue of one’s associational identities. That citizens actually want the state to have this authority, to enforce terms of a governing social contract, is indeed an assumption of varieties of political liberalism.33 Of course, not all political liberals are so critical of group rights. Some view robust organizational protections as morally necessary. The legal philosopher John Finnis, for instance, defends a general freedom of association in order to resist a “substantial shrinking of private life, or invasion of it, by coercive law.”34 Legal scholar Robert Post echoes a related sentiment when he writes that the state “so pervasively deploys law as a method of channeling behavior that it has become very common to protest that contemporary law actually undermines culture …. [It] deracinates and suppresses culture.”35 Hence, Horwitz too, in an effort to combat the abstractions of law, defends robust protections for certain types of non-state organizations. “The infrastructure of society extends well beyond the state itself and includes a number of central institutions 30 Laborde,

Liberalism’s Religion, 171. 173–74. 32 See Paul Horwitz, First Amendment Institutions (London: Harvard University Press, 2013), 14–15. 33 Laborde, Liberalism’s Religion, 163. 34 John Finnis, “Equality and Religious Liberty: Oppressing Conscientious Diversity in England,” in Religious Freedom and Gay Rights: Emerging Conflicts in the United States and Europe, eds. Timothy Samuel Shah, Thomas F. Farr, and Jack Friedman (Oxford: Oxford University Press, 2016), 26. 35 Robert Post, “Law and Cultural Conflict,” Chicago-Kent Law Review 78 (2003): 488. 31 Laborde,

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in which some of the most important speech and social interaction takes place,” Horwitz writes.36 Given these moral stakes, which are unmistakably tied to the moral worth of individuals, corporate religious liberty is not so illiberal as some make it out to be. A reason for this complexity, I propose, pertains to the distinction between types of organized groups. Many theorists who largely favor individual rights also argue that group rights are indeed permissible, but only when granted to certain types of voluntary organizations.37 Other theorists argue that non-voluntary groups, such as for-profit enterprises, could enjoy group rights as well, albeit under certain circumstances. Whatever those circumstances, the general rationale is not entirely dissimilar to the individual-rights focus of church autonomy. As Justice Alito puts it, “protecting the free-exercise rights of [for-profit] corporations … protects the religious liberty of the humans who own and control those companies.”38 In short, individual rights are directly involved. But, notably, they are the rights of certain individuals. Despite their emphases upon individuals, the moral implications of each position above are, of course, starkly different. The first effectively restricts corporate religious exercise to a narrow set of voluntary associations, while the second permits it within a wider array of group-types. The former seeks to protect all associating members directly, while the latter emphasizes the rights of corporately empowered individuals (i.e., those who have the authority to determine the religious purpose of a corporate entity). Following liberal egalitarian commitments, many would argue that these differences alone point to the moral wisdom of a narrow church autonomy position. However, it is important to note that the second and more organizationally expansive position is seldom held out to be of equal presumptive strength. In light of their public-serving nature and their assumed religiously heterogeneous membership, the religious rights of for-profit enterprises are typically subject to a higher

36 Horwitz,

First Amendment Institutions, 84. Liberalism’s Religion, 178. See also Hobby Lobby, 134 S.Ct. at 2795 (Ginsburg writes, “Religious organizations exist to foster the interests of persons subscribing to the same religious faith”). 38 Hobby Lobby, 134 S.Ct. at 2768. 37 Laborde,

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degree of governmental interference.39 Differences in organizational- or group-type—differences that are deemed ethically salient—are at work here. We note, therefore, that the moral stakes of corporate religious liberty pertain not only to individuals and groups, but also to the types of groups identified. This distinction adds another dimension to the individual–group divide, as well as to the larger moral picture. Following from the distinction between group-types is another morally contentious issue—namely, the use of group ontology for extending legal rights to organizations. According to Laborde, group ontology “distract[s] attention from the underlying facts and interests that ought to guide our legal and moral assessment of the rights and duties of different groups.” Referring especially to group ontologies that are framed in terms of corporate personhood, Laborde writes: [Conceptions of personhood] often offer rhetorical tools to advance preferred policy positions, but do not engage the interest that grounds particular right claims, nor do they provide a sense of how those interests are implicated within groups. For some purposes—such as corporate liability—the law might well treat a group as if it were a person; but this says nothing about whether it is a real, preexisting person. Instead of engaging in the semantics of group ontology—“What is a group?”—we should be asking a different, interpretive question: “How would giving this group specific legal rights and duties affect our social relations?”40

The “group ontology” to which Laborde refers is the sort that determines whether groups have moral agency and, thus, moral personality. To include these group-ontological conclusions into law is, in Laborde’s opinion, irresponsible. It fails to give due attention to other relevant facts and interests, such as the rights of vulnerable individuals affected by exorbitant group protections.

39 For

a similar argument, see Horwitz, First Amendment Institutions, 243–47. Liberalism’s Religion, 172–73 (italics in original).

40 Laborde,

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In my opinion, Laborde’s argument is cogent.41 Corporate personality is by no means a panacea for corporate rights disputes in general or for corporate religious liberty disputes in particular. However, one should be skeptical of the tacit assumption that group ontology must be understood in terms of corporate (moral) personality alone. Finnis, for instance, recognizes the reality of group agency while emphatically rejecting the “distracting metaphor” of corporate personality. By his Aristotelian and Thomistic understanding, group ontology entails a vision of social reality in terms of coordinated activities. This, Finnis claims, helps view social and group life as best or as accurately as possible.42 If this holds true (which I think it does), then group ontology need not be feared when used in the description of groups and in a subsequent ascription of corporate rights. So the question concerning to whom or to what corporate religious liberty applies raises a number of ethically contentious issues relating to the individual–group divide, as well as to the distinction between group-types and the use of group ontology for the assignment of legal rights. Each of these issues adds a particular dimension to the corporate religious liberty debate. The first demarcates a basic normative disagreement, involving whether corporate religious liberty should apply chiefly to individuals or groups. The second indicates that corporate religious liberty should entail a principled distinction between group-types. And the third—which arguably is the most fundamental—suggests that group ontology can be used to good or bad effect when identifying the appropriate subjects of corporate religious liberty disputes. Indeed, our ideas about what groups are influence our descriptions of social reality; these descriptions, in turn, inform our legal and moral evaluations, doing so for better or for worse.

41 Laborde’s

argument follows those of Richard Schragger and Micah Schwartzman and, separately, James D. Nelson. I examine and respond to those arguments in Sects. 3.2 and 3.3 below. 42 John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 24–25.

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1.3

A Christian Ethical Perspective

In light of the above, this book operates upon the methodological assumption that a clear view of social reality contributes to an ethically appropriate regime of corporate religious liberty. Hence, the book’s central argument holds the descriptive position that groups are best understood in terms of action; and it holds the related and complementary position that this ontology can improve ethical engagement in the corporate religious liberty debate. This argument, of course, presumes that the ethical contributions on offer are indeed descriptively and/or normatively inadequate. As for political liberal contributions, we have pointed to their descriptive inadequacies especially; as for the Christian ethical, one can find in them the same types of deficiency. Chapter 2 demonstrates this situation through a close reading of modern ecclesial statements. But, for present purposes, it will be useful to preview some of these inadequacies by carrying forward our discussion of the three normative stakes raised in Sect. 1.2 above. First, as regards the dispute over individual and group rights, we note two points: (i) that the Christian tradition has a foot in both camps of the individual–group divide; and (ii) that, while some like Oliver and Joan O’Donovan may prefer to drop rights-language altogether, Christian ethicists in general affirm the underlying dignity of the human person, including the groups that shape each individual.43 William T. Cavanaugh cites Jewish and Christian scripture to support both points. He writes: It is not the case that only individuals are made in the image and likeness of God. The image of God in Genesis 1:27 seems to apply to the whole human race: “in the image of God he created him [adam, singular]; male

43 Oliver O’Donovan and Joan Lockwood O’Donovan, Bonds of Imperfection: Christian Politics, Past and Present (Cambridge: William B. Eerdmans, 2004), pt. 1.

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and female he created them [plural],” which is why many versions of the Bible translate adam with a corporate noun like “humankind.”44

Advancing a similar claim, Jacques Maritain provocatively states that “the person is a whole, but … not a closed whole, … [rather] an open whole.” He substantiates this statement along Aristotelian lines, writing: “Man is a political animal, which means that the human person craves political life, communal life, not only with regard to the family community, but with regard to the civil community.”45 Hence, for Maritain, undue interference in these social realms is a violation of a morally essential aspect of the human person. What makes interference undue is a matter of Christian prudence. Thus commentators on church-state relations make statements similar to that of Dietrich Bonhoeffer, who writes: “In both Protestant and Catholic political theory the question of the form of the state is always treated as a secondary problem … No form of the state is in itself an absolute guarantee for the proper discharge of the office of government.”46 We take it then that that which is due or proper to the human person as such is, at minimum, ethically attentive to both a person’s inherent dignity and the social contexts in which a person is found. In church-state contexts, such attentiveness can result in a number of practical forms, from an established state religion to an American-style separationism.47

44 William T. Cavanaugh, “Are Corporations People? The Corporate Form and The Body of Christ,” in Field Hospital: The Church’s Engagement with a Wounded World (Cambridge: William B. Eerdmans, 2016), 16. 45 Jacques Maritain, The Rights of Man and Natural Law (London: The Centenary Press, 1944), 7–8 (italics in original). 46 Dietrich Bonhoeffer, Ethics, ed. Eberhard Bethge, trans. Neville Horton Smith, 6th German (London: Collins, 1964), 352. See also Abraham Kuyper, “Third Lecture: Calvinism and Politics,” in Lectures on Calvinism (Peabody, MA: Hendrickson Publishers, 2008); and Pope Paul VI, “Pastoral Constitution of the Church in the Modern World (Gaudium et Spes),” in The Documents of Vatican II: All Sixteen Official Texts Promulgated by the Ecumenical Council, 1963–1965, ed. Walter M. Abbot, S.J., trans. Joseph Gallagher (Piscataway, NJ: New Century Publishers, 1966), para. 76. 47 For a concise defense of religious state establishment in Britain, see Nigel Biggar, “A Reply to Theo Hobson,” Theology 115, no. 3 (2012): 175–79. For an American counterpart, see Nicholas Wolterstorff, “A Religious Argument for the Civil Right to Freedom of Religious

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More broadly applied, however, this moral attention may require— or at least lends itself to—the enumeration and enforcement of various individual and social rights. Take, for example, Maritain’s extensive list: The fundamental rights, like the right to existence and life; the right to personal freedom or to conduct one’s own life as master of oneself and of one’s acts, responsible for them before God and the law of the community; the right to the pursuit of the perfection of moral and rational human life; the right to the pursuit of eternal good (without this pursuit there is no true pursuit of happiness); the right to keep one’s body whole; the right to private ownership of material goods, which is a safeguard of the liberties of the individual; the right to marry according to one’s choice and to raise a family which will be assured of the liberties due it; the right of association, the respect for human dignity in each individual, whether or not he represents an economic value for society—all these rights are rooted in the vocation of the person (a spiritual and free agent) to the order of absolute values and to a destiny superior to time.48

Maritain’s list escapes an overly individualist flavor not just by affirming rights to free association and the like, but by grounding the source of all rights in a socially transcendent moral order. In a Christian paradigm, this grounding itself—and not the adoption of rights-language per se— is a fundamental feature.49 Hence, the basic moral question regarding due and undue interference must always be answered with respect to this transcendent source. Indeed, by intending the person to be social, God has care for both individuals and groups. With regard to the second dimension of the corporate religious liberty debate—the area concerning types of groups involved—Christian deliberation must consider two things: first, empirical aspects of, and differences between, group-types; and, second, the moral justifications of extending legal rights to the subjects identified (e.g., the groups themselves and/or the individuals within the various group-types). The Exercise, Drawn from American History,” in Understanding Liberal Democracy: Essays in Political Philosophy, ed. Terence Cuneo (Oxford: Oxford University Press, 2012), 329–52. 48 Maritain, The Rights of Man, 44–45. 49 For example, see Joseph Ratzinger, Truth and Tolerance: Christian Belief and World Religions, trans. Henry Taylor (San Francisco: Ignatius Press, 2003), 254.

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first consideration is arguably fundamental because it highlights the general nature of social relationships within groups; this information then supports moral and legal deliberation. Consider once more the commonly held position that church membership is voluntary, while membership (or employment) in a forprofit firm is not.50 In light of this assumption, a regulation that applies to all group members would affect church congregants differently than it would a firm’s employees. On the one hand, church members might claim that the regulation violates their religious belief, both individually and collectively, and therefore they would act against the regulation’s enforcement. On the other hand, a firm’s employees, assumedly of different religious persuasions, might claim that the regulation violates the beliefs of only a minority of individuals and that, following some corporate policy, the regulation is welcomed by the collective entity as a whole. As I discuss in Chapter 2, Christian ethical contributions to the corporate religious liberty debate generally tend to gloss over important empirical differences between group-types, specifically conflating the categories of for-profit firm and religious institution. This tactic is unhelpful because it portrays the Christian position as morally unreasonable—as seeking robust religious-institution protections for whatever variety of profit-making organization, no matter the social consequences. But, as the assumption of voluntary membership shows, empirical differences between group-types can affect the ethical propriety of legal rights ascription. At the very least, regimes of corporate religious liberty should differ in strength or conditionality, depending in part upon ethically salient differences between organizational types. That said, a Christian ethical contribution should look to the full array of empirical factors and ethical stakes. Indeed, considerations beyond voluntary membership can also be vitally important. A general respect for group autonomy, the rights and duties of business owners, recourse to reasonable legal alternatives—all could justify the ascription of rights to a particular

50 See

Hobby Lobby, 134 S.Ct. at 2795.

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group-type, despite the (perceived) negative effects following from one salient group-descriptor.51 In any case, the following point still holds: Empirical distinctions between group-types are vital for legal and moral deliberation. In corporate religious liberty contexts, Christians should leave no doubt that such differences have been thoroughly considered. Fortunately, the Christian tradition has the conceptual resources to view social reality as best or accurately as possible. Given its group-ontological heritage, identifying differences between group-types should pose few difficulties. We thus consider a third Christian ethical stake: the use of group ontology in the assignment of legal rights. Laborde, we recall, thinks that group ontology “distract[s] attention from the underlying facts and interests that ought to guide our legal and moral assessment.”52 But a Christian ethicist should think otherwise. Group ontology properly understood can draw attention to, not distract from, the full range of facts and interests involved in social life in general and in the ascription of corporate rights in particular. Two types of group ontology, both found within the Christian tradition, are able to achieve this. First, there is an Aristotelian-Thomistic form, which, as Finnis notes, views groups as the coordinated activities of individuals.53 Second, there is a scriptural and theologically based form, which holds that the invisible Church—and only the invisible Church—is a moral person whose mind and intentions are not entirely derived from those of her (earthly) members.54 I refer to these forms as modest and strong group realism respectively. A Christian approach to corporate religious liberty should have recourse to both types. The first cuts through the opaque and ethically confusing descriptions provided by common theories of corporate personality. And the second, when carefully handled within the action-based framework of the first, can help preserve the normative value of churches—so

51 For example, see Zubik v. Burwell, 578 U.S. ___ (2016) (in which the Supreme Court ordered appellate courts to reconsider alternative means to protect both the religious freedom of the organizations involved and compelling governmental interests). 52 Laborde, Liberalism’s Religion, 173. 53 Finnis, Aquinas, 26. 54 For sources and explanation, see Chapters 4 and 6 below.

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strengthening the moral justification of church freedoms, while differentiating them from the rights of non-church entities. The account of corporate religious liberty constructed within this book integrates both group ontologies; but the account is built predominantly upon the first, since it is this ontology that permits a detailed empirical analysis of the diverse subjects involved. Laborde’s fact- and interest-finding requirement is met by this descriptive capability, which sees groups at both the macro and micro levels, so to speak. Furthermore, the action perspective of this ontology is extremely useful—and indeed vital—for moral and legal evaluation. This is so because actions are the proper subjectmatter of moral deliberation; hence, the ascription of legal rights, as an applied form of moral deliberation,55 must look to actions as well. Ethicists, whether Christian or not, can appreciate this methodological point. In turn, they can see how modest group realism serves as an important aid to action-based moral analysis. In sum, we have seen that the Christian stakes in this book’s guiding question are many. They touch upon the inherent dignity of the human person, which gives moral weight to groups as such. They reach into the ethically salient distinctions between group-types and reveal this to be an area of improvement for Christian participation. And they point to the group ontologies available to, and at home in, Christian moral reasoning—including strong group realism (which can help justify church freedoms) and modest group realism (which can facilitate robust moral analysis of group and social activities). These ethical stakes, of course, draw attention to conceptual resources that make a moral and group-ontological response available. Should a Christian response make use of them, it can improve Christian engagement in the current debate and even move that debate beyond political liberal impasses concerning (i) the individual–group divide, (ii) the distinction between group-types, and (iii) the use of group ontology for the ascription of legal rights.

55 See

discussion on moral theory in Sect. 3.3 below.

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1.4

E. A. David

The Task Ahead

Having surveyed political liberal and Christian interests in this book’s guiding question, we now ask what a Christian ethical and groupontological response might look like. At its most basic level, the response I propose takes the form of an account, or theory, of corporate religious liberty. Focused upon the moral and legal subjects (the “to whom or to what”) at stake, the theory holds that corporate religious liberty best applies to the group-agential actions of coordinating individuals. This position bridges the individual–group divide, distinguishes between group-types, and demonstrates an appropriate use of group ontology for the assignment of legal rights. To substantiate this position and thereby construct the promised theory, this book progresses as follows. Chapter 2, Corporate Religious Liberty in Church Teachings, searches for normative resources in modern ecclesial statements on religious freedom and assesses their contributions to the contemporary American debate. The chapter notes that Catholic and Protestant churches have a welldeveloped theory of religious freedom in general and an emerging understanding of corporate religious liberty. The chapter demonstrates that the latter corporate understanding requires development with regard to the issue of appropriate moral and legal subjects. On this point, Catholic and Protestant reflections can be seen to track certain political liberal failures, such as overlooking ethically salient differences between grouptypes, precariously straddling the individual–group divide, and reducing the Church into a mere voluntary association. The chapter concludes that Christian participation in the debate must draw upon its own group-ontological resources in order to respond adequately to the question concerning to whom or to what corporate religious liberty applies. In short, what is needed is a Christian ethical and group-ontological account of corporate religious liberty. Before constructing this account, Chapter 3, Group Ontology and Skeptical Arguments, anticipates objections to the use of group ontology for the ascription of legal rights. Three positions are addressed: first, Justice Ruth Bader Ginsburg’s attempt to eliminate the possibility of group agency for profit-making corporations; second, James D. Nelson’s social theory of conscience, which reduces group agency to a

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narrow range of group-types; and, third, Richard Schragger and Micah Schwartzman’s argument that group ontology is both indeterminate and morally distracting for legal rights ascription. Especially through its critical engagement with the latter theorists, the chapter ends with a basic framework for rights ascription, which integrates group ontology and ethical concepts in a methodologically appropriate way. This framework is taken into the next chapter, where it grounds our proposed Christian and group-ontological approach. Chapter 4, A Modest Account of Corporate Religious Liberty, finally constructs the promised theory. Summarily put, the account holds that corporate religious liberty should apply to group-agential actions, pursued for ends that are either (i) distinctly religious, thus suggesting a theory of church freedoms, or (ii) religiously motivated yet secular in nature, thus suggesting a theory of non-church organizational exemptions. This two-theory account is arrived at through a retrieval of Aquinas’s group-ontological thought (especially as interpreted by legal philosophers John Finnis and, separately, Richard Ekins), as well as a subsequent integration of that thought into the method of legal rights ascription endorsed in the previous chapter. Chapter 5, Political Liberal and Theological Contentions, then highlights conceptual and practical benefits of the account’s group-agential focus. These include movement beyond the individual–group divide, preservation of churches’ distinctive normative value, and justification for degrees of governmental interference when disputes arise. Of particular importance, the chapter demonstrates how groups—when viewed as verbs—can intelligibly be understood as recipients, or subjects, of legal rights to religious liberty. On this point, Aquinas’s Treatise of Human Acts and various court opinions (including from Judge Kent Jordan of the U.S. Third Circuit Court of Appeals and from Justice Samuel Alito of the U.S. Supreme Court) come together to illuminate the practical moral use of Aquinas’s group ontology. With the promised account outlined, Chapter 6, Integrating the Strong Group Agency of the Church, addresses a remaining question: Assuming that the Church could be understood as a strong group agent (i.e., a group whose agency is not entirely attributable to members’ coordinated actions), how should we integrate it into a theory that is built upon

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modest group realism? The chapter answers this question with reference to Roman Catholic sources in particular. First, it considers the extent to which certain ideas in Catholic ecclesiology meet a stipulative definition of strong group realism. Then, a historical survey—focusing upon medieval interpretations of the corpus mysticum and the contemporary secularization of John Locke’s “true church”—helps explain why churches are not commonly described in strong group-realist terms today and how this situation affects proposals to protect church freedoms. Closing the chapter is an examination of the U.S. Supreme Court case Corporation of the Presiding Bishop v. Amos (1987), which illustrates how my proposed theory could legally account for the theological person of the Church. Finally, Chapter 7, From Group Ontology to Christian Moral Reasoning, further demonstrates how my proposed account aids in corporate religious liberty analysis. In response to the question “Is group ontology morally distracting?,” the chapter argues two related claims: first, that modest group realism is part of practical moral reasoning itself and thus invites reflection upon rights-based and non-rights-based reasons to protect or limit corporate religious exercise; and, second, that strong group realism provides additional moral resources—especially by means of the virtues—to complement and complete moral deliberation. To illustrate these claims, and to indicate the directions a Christian approach might take, the chapter concludes with brief analyses of wedding-vendor and clerical sex abuse cases. The question concerning to whom or to what corporate religious liberty applies demands a normative and group-ontological response. This book provides an ontological response that focuses the churches’ normative reflections in a novel way—one that accounts for individuals and groups, through protections granted to group-agential actions. Such an account could help Christian communities to successfully navigate the moral challenges of current—and future—legal disputes.

2 Corporate Religious Liberty in Church Teachings

Drawing upon the Christian tradition’s ethical and group-ontological resources, this book proposes that corporate religious liberty best applies to group (or group-agential) actions, as opposed to individuals or group persons per se. This position is mostly alien to contemporary political liberal discourse where, generally speaking, one side views religious freedoms predominantly in terms of individual rights, and an opposing side views them as group rights that must be strengthened in the face of governmental curtailment. This position is also unfamiliar to Christian engagement in the same debate, as observed in ecclesial statements that tend to discuss religious rights along the individual–group divide, but admittedly in a way that (rightly) seeks to keep a foot in both sides of the normative chasm. In this chapter, I seek (i) to learn from this Christian, and specifically ecclesial, contribution to the debate; but I also seek (ii) to uncover the contribution’s weaknesses, especially with regard to the individual–group divide. This exercise will lay bare normative principles for ready incorporation into a renewed account of corporate religious liberty; and it will suggest how the Christian tradition’s group ontology—whereby groups © The Author(s) 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3_2

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are seen as coordinated actions and the Church herself as a supernatural person—can help move past certain challenges of the contemporary debate. In light of this twofold aim, I structure the present chapter as follows: Sect. 2.1 starts with an outline of the churches’ conception of religious liberty in general, referencing modern ecclesial documents from the Roman Catholic and Protestant traditions. Section 2.2 then examines the churches’ most established form of corporate religious liberty, a theory of the freedom of the church; and Sect. 2.3 elaborates upon the churches’ other, nascent theory: a theory of organizational exemptions, which applies to non-church entities, such as for-profit firms. Finally, Sect. 2.4 concludes that, despite its nuance and strengths, the churches’ contribution to the debate still evinces weaknesses concerning (i) the individual– group divide, (ii) ethically relevant distinctions between group-types, and (iii) the use of group ontology for the assignment of legal protections. The Christian tradition’s group-ontological thought is held out as a means to overcome these shortcomings; and a program for theoretical development—one that preserves the churches’ moral reflections while utilizing the tradition’s group ontology—is outlined.

2.1

Religious Liberty as Christian

In order to learn from the churches’ contribution to the contemporary debate, it helps first to understand how the Roman Catholic and Protestant traditions—as seen through modern ecclesial documents— view religious liberty in its conceptual ground, legal dimension, and practical moral limits. This examination reveals two different types of religious liberty: a Protestant form based largely on conscience, and a Catholic variety that is explicitly grounded in an objective moral order. We begin with the latter: What do the magisterial documents of the Roman Catholic Church teach?

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2.1.1 Catholic Social Teaching on Religious Liberty The Catholic position on religious liberty is multifaceted and, while still met with a certain amount of internal dispute,1 it is largely settled in the ordinary magisterium of the Church. A brief history of the Church’s 1965 declaration on religious liberty, Dignitatis humanae, is illuminative of the contemporary position. Around the time of John XXIII’s election as pope (1958), and prior to the Second Vatican Council (1962–1965), the Church’s prevailing account of religious freedom was framed in terms of a thesis/ hypothesis distinction. This distinction held that Catholicism is the one true religion and that, as an ideal thesis, the state should establish Catholicism as the favored religious system. Against this, the hypothesis held that, in cases where Catholicism could not be established, the situation should be tolerated as an evil and that Catholics should work towards changing the hypothesis into the thesis when possible.2 Within this context, the famous slogan “error has no rights” was applicable (especially to public worship, since only the true religion could be practiced openly), “indifferentism” was battled (since not all religions are equal),3 and “Americanism” condemned (due to its particular vision of religious toleration and separation of church and state).4 Vatican II’s Dignitatis humanae changed this prevailing account. Largely through the intellectual efforts of John Courtney Murray S.J., 1 For

example, see David L. Schindler, Heart of the World, Center of the Church: Communio Ecclesiology, Liberalism, and Liberation (Edinburgh: T&T Clark, 1996), 43–88; and Stanley Hauerwas, “Not Late Enough: The Divided Mind of ‘Dignitatis Humane Personae,’” in A Better Hope: Resources for a Church Confronting Capitalism, Democracy, and Postmodernity (Grand Rapids, MI: Brazos, 2000), 109–16. See also Martin Rhonheimer, “Benedict XVI’s ‘Hermeneutic of Reform’ and Religious Freedom,” Nova et Vetera 9, no. 4 (2011), 1029–54; and Thomas Pink, “The Interpretation of Dignitatis Humanae: A Reply to Martin Rhonheimer,” Nova et Vetera 11, no. 1 (2013): 77–121. Finally, see V. Bradley Lewis, “Development in Catholic Social Teaching: John XXIII to Paul VI,” in Catholic Social Teaching: A Volume of Scholarly Essays, eds. Gerard V. Bradley and E. Christian Brugger (Cambridge: Cambridge University Press, 2019), 147. 2 Leslie Griffin, “Commentary on Dignitatis Humanae (Declaration on Religious Freedom),” in Modern Catholic Social Thinking: Commentaries and Interpretations, ed. Kenneth R. Himes O.F.M. (Washington, DC: Georgetown University Press, 2005), 245. 3 Griffin, 245. 4 Griffin, 246.

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an American theologian, Dignitatis humanae navigates diverse arguments pertaining to the foundations of religious freedom. As a philosophical matter, Dignitatis humanae holds that religious freedom rests neither on subjective conscience alone (as secular authorities argued) nor on truth alone (as the pre–Vatican II position held). Instead, what provides the necessary ground for religious liberty is the objective dignity of the human person.5 While it may be tempting to read Dignitatis humanae as departing from the pre-conciliar commitment to the truth of Catholicism and of an objective moral order, this interpretation is incorrect. In fact, Dignitatis humanae views human dignity as entailing “conformity with truth and justice,” that is, conformity to the “one true religion [that] subsists in the Catholic and apostolic Church.”6 The search for truth itself constitutes human dignity; and, to fulfil this search, individuals must “enjoy immunity from external coercion.”7 Thus, the notion of negative rights—i.e., freedoms from governmental interference—are tied to the idea of human dignity. Both ideas, Murray proposed, are consistent with traditional Catholic doctrine on churchstate relations: A negative right avoids implications that Catholicism is not the true religion or that the erroneous conscience should have rights of its own.8 And a conceptual foundation in human dignity supports these claims, while recognizing a general freedom to follow one’s conscience (a position adopted by the United Nations and a nascent World Council of Churches in 1948).9 Although Murray’s proposals were not immediately accepted, by December 7, 1965, the Council passed Dignitatis humanae with a final vote of 2308 to 70.10 As the Methodist theologian J. Robert Nelson opined, the declaration “was one 5 Griffin,

253. Paul VI, “Dignitatis Humanae (Declaration on Religious Freedom): On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious,” in The Documents of Vatican II: All Sixteen Official Texts Promulgated by the Ecumenical Council, 1963–1965, ed. Walter M. Abbot S.J., trans. Joseph Gallagher (Piscataway, NJ: New Century Publishers, 1966), 676–7, para. 1 (henceforth cited by document’s Latin name in italics and paragraph only). 7 Dignitatis humanae, para. 2. 8 Griffin, “Commentary on Dignitatis Humanae,” 253. 9 Griffin, 250–2. 10 Griffin, 254. 6 Pope

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of the freshest breezes blowing through the Church after Pope John XXIII opened the window.”11 Fifty years later, the Catholic Church’s understanding of religious liberty continues to straddle both sides of the conscience-versus-truth debate. A reading of the Compendium of the Social Doctrine of the Church reveals the following dimensions of the Church’s contemporary position: First, religious liberty is both theological and natural in origin, grounded in the call of God and in the human person’s created nature.12 Second, religious liberty pertains to truth (“the truth cannot be imposed except by virtue of its own truth”)13 and to conscience (since conscience is required in the search for truth).14 And, third, despite the normative import of subjective conscience, the Church holds that “religious freedom is not a moral licence to adhere to error, nor … an implicit right to error”15 ; hence, truth and specifically the truth of Catholicism are not downplayed by the Church’s official teaching. As a juridical matter, the Church holds that religious liberty is “not of itself an unlimited right.” “Just limits,” the Compendium reads, are to be (i) determined with “political prudence,” (ii) exercised in light of the “requirements of the common good,” and (iii) “ratified by the civil authority through legal norms consistent with the objective moral order.”16 The strong moral realism of this qualification is unmistakable. Indeed, it is interesting to note that, in the Compendium, the often ambiguous term common good is immediately followed by references to an objective moral order; this order, I take it, informs the “just limits” of religious freedom. Nevertheless, while appeal to an objective moral order tempts us to attribute to the Catholic Church a Puritan-esque attitude of

11 J.

Robert Nelson, “The Ecumenical Reception of the Dignitatis Humanae Declaration of the Second Vatican Council,” Ecumenical Trends 24 (May 1995): 67. 12 Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church (Washington, DC: United States Conference of Catholic Bishops, 2014), para. 421 (henceforth, cited with title and paragraph number only). 13 Dignitatis humanae, para. 1. 14 Compendium of the Social Doctrine of the Church, para. 421. 15 Compendium of the Social Doctrine of the Church, para. 422. 16 Ibid.

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religious liberty (“religious freedom for me, not for thee”), such attribution would be a mistake.17 Dignitatis humanae prohibits this. Religious freedom, the declaration states, “means that all men should be immune from coercion on the part of individuals, social groups and every human power so that, within due limits, nobody is forced to act against his convictions.”18

2.1.2 The World Council of Churches on Religious Liberty A survey of the innumerable Protestant perspectives on religious liberty is outside the scope of this book. In its place, I outline a Protestant account based upon a collection of ecumenical statements endorsed, or promulgated, by the World Council of Churches between 1937 and 1965.19 These documents overlap with, and precede in time, the thesis/hypothesis and Vatican II doctrines of religious freedom. They thereby show, at least incidentally, how Protestant churches preceded the Catholic Church in establishing an international standard of religious liberty. One of the primary documents on religious freedom put forth by the World Council of Churches (WCC) is its Statement on Religious Liberty, adopted in 1961 by the WCC’s Third Assembly. The document reflects concerns over missionary activities, threats from totalitarian regimes, and Protestant discrimination in Catholic countries.20 It also reflects, and actively embraces, a modern Western conception of human rights and 17 Douglas Laycock refers to this attitude as the “Puritan mistake.” See Douglas Laycock, “Religious Liberty: Not for Religion or Against Religion, but for Individual Choice,” in Religious Liberty, Vol. 1, Overviews & History (Grand Rapids, MI: William B. Eerdmans, 2010), 123. 18 Dignitatis humanae, para. 2. 19The World Council of Churches (WCC) was officially founded in 1948, and so I include within my historical purview pre–WCC documents that eventually and directly informed the WCC’s position on religious liberty. Moreover, while I focus upon Protestant perspectives when referencing the WCC, it should be noted that Orthodox churches have been members of the WCC since its inception. 20 See World Conference on Church, Community and State, “Excerpt from the Report on Church and State, Oxford 1937,” in Main Ecumenical Statements on Principles Concerning Religious Freedom (Geneva: World Council of Churches, 1965), 1.

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civil liberties.21 Its most direct precursor, the WCC’s Declaration on Religious Liberty, was released in 1948, the same year as the U.N.’s Universal Declaration of Human Rights. The text of the 1961 Statement is contained in eleven short paragraphs, the majority of which detail specific (legal) rights of religious freedom. The beginning paragraphs, especially the second, ground a theological vision of religious freedom. It reads: Christians see religious liberty as a consequence of God’s creative work, of his redemption of man in Christ and his calling of men into his service. God’s redemptive dealing with men is not coercive. Accordingly human attempts by legal enactment or by pressure of social custom to coerce or to eliminate faith are violations of the fundamental ways of God with men. The freedom which God has given in Christ implies a free response to God’s love, and the responsibility to serve fellow-men at the point of deepest need.22

Complementing this, the Statement also adopts a distinctly philosophical argument. Paragraph six reads: “The recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family requires that the general standard [of the U.N.’s Declaration] … should be given explicit expression in every aspect of society.”23 Without addressing the exact nature of “dignity” or of the “equal and inalienable rights” of the human person, the Statement leaves readers to reach their own conclusions. It is reasonable to assume, however, that the Statement, at minimum, grounds these concepts in a philosophical

21 Ninan Koshy, Religious Freedom in a Changing World (Geneva: WCC Publications, 1992), 73–74. 22The Third Assembly of the World Council of Churches, “Statement on Religious Liberty, New Delhi 1961,” in Main Ecumenical Statements on Principles Concerning Religious Freedom (Geneva: World Council of Churches, 1965), 35. 23The Third Assembly of the World Council of Churches, 36.

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anthropology, one to which we can attribute religious freedom as a “distinctive human right, which all men may exercise no matter … their faith.”24 Whether philosophically or theologically argued, a practical conclusion of the Statement ’s treatment of religious liberty is the limited role given to governments with respect to religious belief and exercise. Paragraphs seven through ten provide an extensive list of specified rights held by believers against the state. These rights include the freedom to worship in public or private, the freedom to preach and propagate one’s faith, and the freedom to exercise religion in all aspects of one’s public life.25 Several decades of reflection upon religious freedom inform this list. The 1937 Report on Church and State renounced the “use of the coercive power of the State in matters of religion”; the 1938 Report on Church and State affirmed the rights of churches against governments; and the 1948 Declaration on Religious Liberty asserted the freedom of individuals to express their religious beliefs in social and political communities.26 By the time the 1961 Statement reaffirmed the 1948 Declaration, the WCC had accumulated a rich inventory of rights that are held against the state, in defense of individual and communal liberties. Perhaps due to its forceful affirmation of rights, especially in the face of totalitarianism and religious hegemony, the WCC commits few passages to the practical limits of religious liberty. The Statement itself contains no paragraphs dedicated to the topic, opting instead to highlight—ever so occasionally—the need to exercise religious freedom with responsibility.27 Of the passages that do address limitations, the WCC seems 24 Secretariat on Religious Liberty Division of Studies, World Council of Churches, Main Ecumenical Statements on Principles Concerning Religious Freedom (Geneva: World Council of Churches, 1965), 36, lines 13–14. 25The Third Assembly of the World Council of Churches, 36–37, especially lines 36–53. 26 World Conference on Church, Community and State, “Excerpt from the Report on Church and State, Oxford 1937”; The Conference of the International Missionary Council, “Excerpt from the Report on Church and State, Madras 1938,” in Main Ecumenical Statements on Principles Concerning Religious Freedom (Geneva: World Council of Churches, 1965), 3–4; and The First Assembly of the World Council of Churches, “Declaration on Religious Liberty, Amsterdam 1948,” in Main Ecumenical Statements on Principles Concerning Religious Freedom (Geneva: World Council of Churches, 1965), 5–7. 27The Third Assembly of the World Council of Churches, “Statement on Religious Liberty, New Delhi 1961,” 35, lines 41–45; 37, lines 18–26; and possibly 35, lines 47–54.

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most concerned with restraints placed upon the church, as opposed to individuals or to religious liberty in general. Since I discuss these churchrelated limitations in detail below (see Sect. 2.2), it is sufficient here to note that the 1948 Declaration considers religious freedom to be justly curtailed by “non-discriminatory laws passed in the interest of public order and well-being.”28 Attention to this interest, I take it, constitutes the “responsible” exercise of religious liberty. The question arises immediately concerning what “public order” or “well-being” entails: Other than a recognition of the person’s need to respond freely to God and neighbor, which presumably helps form a working definition of “well-being,” the WCC, in its statements on religious liberty, does not provide an answer.

2.1.3 Summary The preceding discussion illuminates several areas of convergence, and a noticeable point of divergence, between the Catholic Church and the World Council of Churches on religious liberty. In terms of commonality, both sides (i) affirm religious liberty’s theological and philosophical bases; (ii) view religious liberty as implying a negative right held by individuals and communities against (undue) government interference; (iii) recognize a certain legitimacy of, and role for, the government in general; and (iv) insist upon the responsible exercise of religious freedom. A notable difference between both ecclesial traditions is the Roman Catholic emphasis upon truth, which entails not only the truth of Catholicism itself but also the truth of an objective moral order. Barring a related appeal to human dignity (which implies a philosophical and universal truth claim), an emphasis upon objective truth is more or less absent from statements put forward by the World Council of Churches. This point of course should not be taken to mean that the WCC, including the traditions or churches it represents, deny the existence of an objective moral order; indeed, one could argue that the WCC’s recognition of “God’s redemptive dealing with men” already entails a

28The

First Assembly of the World Council of Churches, “Declaration on Religious Liberty, Amsterdam 1948,” 7.

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Table 2.1

E. A. David

Religious liberty: Catholic Church and the World Council of Churches

Aspects in common

Catholic Church

WCC

Conceptual bases: inscribed by God in human nature; part of God’s creative and redemptive work; involving human dignity and inalienable moral rights; entailing a free response to God

Grounded in conscience and truth

Grounded in conscience

Attending to the common good; consistent with an objective moral order

Respect for the state’s anti-discrimination laws passed for public order and well-being

Legal: negative right or liberty, held by the individual or community against (undue) government interference Moral limits: exercised within just limits; involving political prudence and responsibility; recognize laws that are ratified by civil authorities

No moral right to error

theologically grounded moral realism.29 But the point I wish to stress here is that the mention of “objective moral truth” is noticeably absent in the WCC documents just examined. The concept may be implied, but it is not explicitly stated. Following from the above is the portrayal of two different types of religious liberty: a Protestant form, grounded in conscience and entailing a direct relationship between God and the human person; and a Catholic form, grounded in conscience and a universally accessible order of moral and religious truth. Table 2.1 provides a summary visualization. What are we to make of these two different forms of religious liberty? For present purposes: not much. Despite their differences, the Catholic and Protestant conceptions are able to ground a unified, Christian ethical 29The

Third Assembly of the World Council of Churches, “Statement on Religious Liberty, New Delhi 1961,” 35.

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approach to religious liberty. This claim will become more apparent as we explore the churches’ two forms of corporate religious liberty (Sects. 2.2 and 2.3) and as we discuss how both traditions might improve their contributions to the contemporary debate (Sect. 2.4). We turn now to the churches’ first form of corporate protections: the freedom of the church.

2.2

The Freedom of the Church

I view corporate religious liberty, as understood by the churches, to be of two general types. One form, the freedom of the church, pertains to religious organizations and their religious activities—including the selection of ministers, teaching of doctrine, and engagement in worship. Another form pertains to any non-church entity, such as a religiously inspired charity or for-profit enterprise, that may object to a law of general applicability on religious grounds. This form of corporate religious liberty (what I call a theory of organizational exemptions) covers any activity or function, whether ostensibly or overtly religious, that a non-church entity engages in as part of its religious belief or exercise. In this section, I focus upon the first form of corporate religious liberty. My aim is to outline Catholic and Protestant conceptions of the freedom of the church based upon the ecclesial documents already discussed, as well as recent ecclesial and theological statements promulgated in response to the U.S. federal government’s contraceptive mandate.30 By proceeding in this way, I hope to show doctrinal continuity between each tradition’s understandings of religious liberty in general and of church freedoms in particular. Afterward, I highlight a certain individualist character of the Catholic and Protestant visions of the freedom of the church.

30 See

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). The federal government issued a mandate that would require employers to cover the contraceptive costs of their employees, i.e., the “contraceptive mandate.” The Hobby Lobby Court held that the mandate violated the religious liberty rights of closely held corporations, as protected under the federal Religious Freedom Restoration Act.

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2.2.1 Catholic Social Teaching on the Freedom of the Church The freedom of the church has a primary emphasis in the Catholic tradition. As the Compendium of the Social Doctrine of the Church states, this autonomy entails the freedom to engage in a variety of functions or activities: The Church therefore seeks: freedom of expression, teaching and evangelization; freedom of public worship; freedom of organization and of her own internal government; freedom of selecting, educating, naming and transferring her ministers; freedom for constructing religious buildings; freedom to acquire and possess sufficient goods for her activity; and freedom to form associations not only for religious purposes but also for educational, cultural, health care and charitable purposes.31

The Catholic Church’s claims to autonomy in these specific areas are justified through truth- and conscience-based arguments, as well as through identification of what the church is in contradistinction to the state. According to the Compendium, the Church and the state are “by nature different because of their configuration and because of the ends they pursue.” Hence, whereas the state (or “political community”) attends to the “relationships and institutions that are at the service of … the temporal common good,” the Church is “organized in ways that are suitable to meet the spiritual needs of the faithful.” Supporting this distinction is the idea that each type of organization has its own competencies or expertise. The Church, for instance, has “no particular area of competence concerning the structures of the political community.”32 Moreover, the Church, writes Pope John Paul II, is “not entitled to express preferences for this or that institutional or constitutional solution,” except with regard to their moral and religious implications.33 31 Compendium

of the Social Doctrine of the Church, para. 426. of the Social Doctrine of the Church, para. 424. 33 Pope John Paul II, Encyclical Letter Centesimus Annus of the Supreme Pontiff John Paul II: On the Hundredth Anniversary of Rerum Novarum (London: St. Paul Publications, 1991), para. 47. 32 Compendium

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In short, the Church respects the “legitimate autonomy of the democratic order” in recognition of the state’s proper institutions (e.g., voting mechanisms) and end (i.e., the temporal common good).34 While Vatican II’s Gaudium et spes affirms that “in their proper spheres, the political community and the Church are mutually independent and self-governing,”35 the Church encourages cooperation between both, by virtue of the fact that each “serve[s] the personal and social vocation of the same human beings.” Neither entity is an end in itself, but rather a means, “intended for the service of man, to help him to exercise his rights fully, those inherent in his reality as a citizen and a Christian, and to fulfil correctly his corresponding duties.”36 Maintenance of proper relations depends in large part upon the “stable forms of contact and suitable instruments” that have developed over time in juridical experience between both spheres.37 In the American context, one thinks of Thomas Jefferson’s Virginia Statute for Religious Freedom (1779), the Religion Clauses of the First Amendment (1791), and the Religious Freedom Restoration Act (1993). In the British context, such instruments include the Toleration Act (1689) and, separately, the Human Rights Act (1998), which incorporated protections outlined within the European Convention of Human Rights (1953).38 The freedom of the church is also seen as an extension of religious liberty itself. Accordingly, the freedom of the church is grounded in the person’s free response to God and a conscientious search for truth. A certain individualist character is here discernible, insofar as the search for truth belongs to each individual person. But this is not a radical individualism, since the freedom of the church and a Catholic vision of religious liberty take for granted the social nature of the human person. It may 34 Compendium

of the Social Doctrine of the Church, para. 424. Paul VI, “Pastoral Constitution of the Church in the Modern World (Gaudium et Spes),” in Abbot, The Documents of Vatican II: All Sixteen Official Texts Promulgated by the Ecumenical Council, 1963–1965 (Piscataway, NJ: New Century Publishers, 1966), para. 76 (henceforth cited by document’s Latin name in italics and paragraph only). 36 Compendium of the Social Doctrine of the Church, para. 425. 37 Compendium of the Social Doctrine of the Church, para. 427. 38 For historical discussion, especially of the United States, see Kent Greenawalt, Religion and the Constitution, Vol. 1, Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 11–25. 35 Pope

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be reasonably inferred, then, that the freedom of the church is morally justified in part due to this social dimension. Yet a different normative justification is possible. Instead of focusing upon sociality, the law could emphasize individual consent. This is the consent involved in deliberately choosing to follow one’s conscience or to embrace the conclusions arrived at in a search for truth. In political liberal terms, this is an emphasis upon voluntary choice—i.e., voluntarism.39 The Compendium, however, makes no explicit reference to voluntarism in its discussion of the Church’s various rights against the state. Yet, it would be misleading to claim that the Church conceives of its freedoms in a manner wholly divorced from it. In fact, a voluntarist conception of the Church’s autonomy is taken up in a 2012 document published by the U.S. Conference of Catholic Bishops (USCCB). In a response to the federal government’s contraceptive mandate, Our First, Most Cherished Liberty describes churches as voluntary associations: Churches, the document states, display the “American genius for voluntary associations.” Such associations contribute positively to America’s common life, and they require no permission from the government to function.40 Embedded within this description is an explicit recognition of the goods that voluntary associations provide to the wider society, as well as an implicit appeal to respect individual conscience as manifested within voluntary settings. This latter point is taken up more explicitly further into the document, where the bishops quote at length the second paragraph of Dignitatis humanae, which emphasizes the freedom owed to individuals in matters of religious conviction.41 Any discussion of a Catholic vision of the freedom of the church would be incomplete without brief reference to Lumen gentium and Gaudium et spes, Vatican II’s constitutions on the church. Summarily put, Lumen gentium offers various non-reductive (or non-individualist)

39 See

historical discussion of voluntarism in Sect. 6.2.2. States Conference of Catholic Bishops, Our First, Most Cherished Liberty: A Statement on Religious Liberty, March 5, 2012, http://www.usccb.org/issues-and-action/religious-liberty/upl oad/Our_First_Most_Cherished_Liberty.pdf. 41 United States Conference of Catholic Bishops, 8. 40 United

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models of the Church, which Gaudium et spes picks up in its affirmation of the liberty of the Church to act in the modern world. These models include the Church as the mystical Body of Christ, the People of God, and sacrament.42 While some commentators attribute a strongly democratic or individualist dimension to the People of God model in particular,43 this and the other models are rightly interpreted as emphasizing the active (group) agency of the Church: Indeed, the Council speaks of the invisible Church of Christ as subsisting (subsistit ), or existing fully, within the visible Roman Catholic Church. As both Joseph Ratzinger and Guy Mansini O. S. B. remark, the ascription of such full and active agency was deliberately intended by the council fathers.44 While it must be admitted that the agency attributed to the Church most directly pertains to matters of ecclesiology and soteriology, its moral and legal implications are nevertheless clear: In effect, the Church does not deserve its freedoms because it is an association of contracting individuals; rather, it deserves such freedoms because it, being a supernatural person,45 has salvific tasks to achieve in this world. On this latter construction, a Catholic vision of the freedom of the church is unmistakably non-reductive. Nevertheless, nowhere in the Compendium or in recent statements made against the contraceptive mandate does the Church defend its rights through group-realist argumentation. I suspect this is a strategic choice, given the individualist commitments of modern political discourse. At best, this choice shows a theoretical flexibility with respect to ecclesial models, such that one need not eschew group realism altogether even if opting for an individualist model for purposes of law. To sum: The Catholic Church’s understanding of its own organizational freedoms is as multifaceted as its conception of religious liberty 42 Gaudium

et spes, para. 3, 11, 44, 45, 88, and 92 (for “People of God” references), para. 32, 39, and 78 (“Body” references), and para. 9 and 48 (“Church as sacrament” references). 43 See discussion in Avery Dulles S.J., “Nature, Mission, and Structure of the Church,” in Vatican II: Renewal within Tradition, eds. Matthew Lamb and Matthew Levering (Oxford: Oxford University Press, 2008), 31. 44 For sources and discussion, see Sect. 6.1.2. 45 Jacques Maritain connects the philosophical ideas of subsistere (subsistence, from Lumen gentium) and persona to argue that the Church has a supernatural personality. See Jacques Maritain, On the Church of Christ: The Person of the Church and Her Personnel , trans. Joseph W. Evans (London: University of Notre Dame Press, 1973), 18. See also Sect. 6.3.1.

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in general. The freedom of the church appeals to (i) the protection of truth and individual conscience,46 (ii) the provision of goods to the wider society through voluntary association,47 and (iii) a demarcation between the Church (the active agent charged with humanity’s religious and moral well-being) and the state (an important safeguard of the temporal common good).48

2.2.2 Protestant Conceptions of the Freedom of the Church Historic documents from the WCC and a recent statement from Protestant theologians in America understand the freedom of the church in a way not dissimilar to their Roman Catholic counterparts. Like the Catholic Church’s Compendium, the 1938 Report on Church and State provides an extensive list of church freedoms, referred to as the “minimum rights of religious freedom upon which the Church should insist.” Divided into two sets, the list begins with rights: a. b. c. d. e. f. g.

to to to to to to to

assemble for unhindered public worship formulate its own creed have an adequate ministry determine its conditions of membership give religious instruction to its youth preach the gospel publicly receive into its membership those who desire to join it

The second set includes rights: a. to carry on Christian service and missionary activity both at home and abroad b. to organize local churches c. to publish and circulate Christian literature

46 Dignitatis

humanae, para. 2. States Conference of Catholic Bishops, Our First, Most Cherished Liberty, 5. 48 Compendium of the Social Doctrine of the Church, para. 425. 47 United

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d. to hold property and to secure support for its work at home and abroad e. to co-operate and to unite with other churches at home and abroad f. to use the language of the people in worship and in religious instruction g. to have equality of treatment in countries pre-dominantly Roman Catholic, similar to that accorded by Protestant Governments h. to have legal recognition for Christian marriages between nationals49

Both sets affirm rights held by churches against state power. But even at a time of atheistic and Roman Catholic hegemony, the WCC does not endorse a blanket dismissal of state coercion. The 1948 Declaration on Religious Liberty concedes the following: The [political] community has the right to require obedience to nondiscriminatory laws passed in the interest of public order and well-being. In the exercise of its rights, a religious organization must respect the rights of other religious organizations and must safeguard the corporate and individual rights of the entire community.50

This concession is significant, having the potential to curtail church freedoms, including those pertaining to the choice of ministers or the conditions of church membership. Yet the WCC seeks to avoid these situations by emphasizing the various moral and theological grounds of church protections. As the 1938 Report states, the freedom of the church helps preserve the “variety of view-points” required for a “dynamic” political community. And church teachings, the Report continues, promote obedience to the authority of law, which makes the “very rule of the State possible.”51 Complementary to this, the Report also highlights the unique nature of the Christian community. With reference to church freedoms, it 49The

Conference of the International Missionary Council, “Excerpt from the Report on Church and State, Madras 1938,” 3. 50The First Assembly of the World Council of Churches, “Declaration on Religious Liberty, Amsterdam 1948,” 7. 51The Conference of the International Missionary Council, “Excerpt from the Report on Church and State, Madras 1938,” 4.

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states: “These are primarily the rights and obligations of men as children of God, and its [the Church’s] own existence as the Body of Christ , in which the head speaks to members and through which he makes Himself known to all men.” The Body of Christ reference, in particular, adds a rare Protestant and corporatist defense of church freedoms. Yet one would be hard pressed to find this point elaborated upon in the 1938 Report.52 Indeed, an individualist approach marks the WCC’s conception of church freedoms. Moving from the World Council of Churches, we can also find an individualist approach echoed in the amicus brief written by Protestant theologians in support of Hobby Lobby’s claims against the contraceptive mandate. Explaining the normative import of individual conscience, the theologians note that “all work done in faith by God’s people [is] sacred, whether accomplished in the church and monastery or in the fields and courthouse.”53 They conclude: Each Christian is called to live “in accordance with the dictates of their faith and conscience,” no matter the institutional setting.54 While this argument is made with respect to for-profit enterprises, its individualist flavor is no less apparent in church contexts. Indeed, it is a short step from the dignity of individual conscience to an asserted freedom of religious, or religiously inspired, association. Both involve individual consent; and the dominant political liberal order—of which the WCC and Hobby Lobby are part— highly values such consent. Therefore, an individualist, and Protestant, conception of church freedoms comes as no surprise.

52 See

also the individualist rights listed in the 1948 Declaration. They include the rights of “every person … to determine his own faith and creed … to express his religious beliefs in worship, teaching and practice … and to associate with others and to organize with them for religious purposes.” The First Assembly of the World Council of Churches, “Declaration on Religious Liberty, Amsterdam 1948,” 6–7. 53 Brief for 38 Protestant Theologians et al. as Amici Curiae in Support of Hobby Lobby and Conestoga, et al. at 15, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014) (No. 13-354) (italics in original). 54 Brief for 38 Protestant Theologians at 23.

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2.2.3 Summary To conclude this section, I elaborate upon the individualist dimension of the freedom of the church; I address the importance of understanding what a group or, specifically, a church is; and I summarize the Catholic and Protestant notions of the freedom of the church. To start, we must be careful to articulate the exact nature of the individualist dimension of church freedoms. The individualism noted is neither atomistic (as if individuals are independently self-sufficient) nor selfish (as if individuals pursue their self-interests alone). Rather, it is rooted in a set of relational ideas embedded within a broadly Christian conception of religious liberty. This set includes beliefs that individuals are social by nature; that God created humans to search for, and be in communion with, truth; and that religious communities, or churches, play a vital role in orienting humankind towards God. A legal implication that follows pertains to appropriate rights language and moral justification. It seems to me that the freedom of the church is aptly described in terms of a legal right that not only applies to the individual person (i.e., an individual right), but also to the person’s wider religious organization (i.e., a group right). I take this to imply two possible routes: First, legal rights that apply to a church, such as a church’s right to choose its ministers, could be normatively justified in terms of what is best for each individual member. The argument in favor of a free choice in ministers therefore runs as follows: Because individual members within a church associate for religious reasons, and since those reasons are in large part met or preserved by an organization’s ministers, the church should have the legal freedom to choose its ministers without undue interference. Alternatively, it seems that legal rights that apply to a group could also be normatively justified in terms of the nature or provisions of the group itself. Hence, insofar as the group is understood to precede any given member or collection of members, and insofar as the group creates the conditions in which the attainment of particular goods is made possible, the law (i) should recognize this inherent nature or purpose as morally valuable and therefore (ii) should extend legal rights to the group itself.

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On this understanding, a church’s right to freely choose its ministers belongs to the group as such. For some political liberals, understanding the freedom of the church as a group right (as described above) is normatively dangerous, especially with respect to dissenting members and their individual rights.55 Moreover, they claim, it is outright mistaken in terms of sheer logic since, by some political liberal accounts, the ascription of legal group rights cannot follow from conclusions about the nature of a group.56 But certainly conclusions about group ontology can help us understand the ethically salient relationships between a group and its members: If, for example, a church is merely a voluntary association with no eschatological end or salvific purpose, its legal dissolution may not be of tremendous moral or religious import for the individuals who choose to associate in it. We build upon this and related intuitions in later sections of this book (see especially Sects. 5.2.3 and 6.3.1). Table 2.2 captures the conceptual, legal, and moral aspects of the churches’ relational-individualist understandings of the freedom of the church.

2.3

Organizational Exemptions

Having explored the freedom of the church, we now turn to the churches’ second form of corporate religious liberty: organizational exemptions. This theory covers any activity or function, whether ostensibly or overtly religious, that a non-church entity engages in as part of its religious belief or exercise. A few preliminary remarks are required before outlining the relevant Catholic and Protestant conceptions. First, it should be made clear that the churches have not explicitly articulated a theory of religious liberty for non-church entities. 55 Marci Hamilton, God vs. the Gavel: The Perils of Extreme Religious Liberty, 2nd ed. (New York: Cambridge University Press, 2014), 347–59; and Cécile Laborde, Liberalism’s Religion (London: Harvard University Press, 2017), 171–90. 56 Richard Schragger and Micah Schwartzman, “Some Realism about Corporate Rights,” in The Rise of Corporate Religious Liberty, eds. Micah Schwartzman, Chad Flanders, and Zöe Robinson (Oxford: Oxford University Press, 2016), 353–60.

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Freedom of the church: Catholic Church and the World Council of

Aspects in common

Catholic Church

WCC

Conceptual bases: individual dignity and rights; church as voluntary association and positive contributor to society; distinction between proper ends of church and state

Church as active group agent

Church as Body of Christ

Attending to the common good; consistent with an objective moral order No moral right to error

Respect for anti-discrimination laws, except as regards essential activities

Legal: negative right held by churches and/or members against the state with respect to specified activities; appeal to related rights, e.g., speech, association, and property; implicit group right Moral limits: respect for proper spheres or activities of church and state

To the best of my knowledge, there is no catechism or ecumenical statement that attempts to systematically define the freedoms of religious businesses, for example. Lacking an explicit theory, we are left to construct the churches’ understanding based upon various ecclesial and ecumenical statements. Second, the term organizational exemptions suggests protections of religious exercise that are viewed as accommodations or concessions to otherwise generally applicable laws. Certainly, church freedoms are also accommodations to such laws; but to refer to (i) concessions for for-profit firms as exemptions and (ii) concessions to churches as freedoms implies that the latter entail robust protections (i.e., protections justified on strong, and perhaps easily discernible, moral grounds) and that the former necessarily require careful deliberation over complex circumstances, consequences, and various moral goods or duties

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involved.57 Third, perhaps even more so than the interpretation of the freedom of the church given above, the following construction of organizational exemptions is made with the contemporary American context in mind. As the chosen source documents show, Christian and other religious communities within the United States are trying to grapple with the limits of religious freedom and the reach of federal and state governments within non-church contexts. The theory below summarizes some of their intellectual and legal efforts—beginning with ecumenical statements made against the contraceptive mandate, followed by Catholic and Protestant perspectives.

2.3.1 Ecumenical Statements Against the Contraceptive Mandate While American churches accepted the federal government’s complete exemption of religious organizations from the requirements of the contraceptive mandate, there was general discontent with regard to the narrow organizational applicability of that exemption scheme, as well as to a related accommodation scheme that allowed religious non-profits to transfer contraceptive costs onto their insurance providers.58 In the midst of their objections, the American churches made legal-normative arguments that turned upon a broad definition of religious institution.59 When deployed against the federal government’s refusal to extend the exemption scheme to religious non-profits, this definition helped support arguments that the federal government unjustly favored certain types of 57 I find the distinction between the prima facie strength of church freedoms and for-profit exemptions to be ethically appropriate. See Sect. 5.2 for further discussion. 58 See Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,536, 57,537 (November 18, 2018) (to be codified at 26 C.F.R pt. 54). As of May 2020, disagreements over what the accommodation scheme requires still persist. See Reply Brief for Petitioner, The Little Sisters of the Poor Saints Peter and Paul Home at 6, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (U.S. argued May 6, 2020). 59 For narrow definitions of eligible organizations see Exemption and Accommodations in Connection with Coverage of Preventive Health Services, 78 Fed. Reg. 39,870, 39,896 (2013) and Returns by Exempt Organizations, 26 U.S.C. § 6033(a)(3)(A)(i)–(iii). A broader definition can be found in Accommodations in Connection with Coverage of Preventive Health Services (Temporary), 26 C.F.R. § 54.9815–2713AT (2017).

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religious exercise (e.g., the religious functions of houses of worship) over others (e.g., religiously motivated care for the elderly poor). The act of defining a religious institution, however, poses challenges with regard to reasonable boundary criteria and thus moral limitations. Consider the following ecumenical statement. In a 2012 open letter, entitled “Free Exercise of Religion: Putting Beliefs into Practice,” Catholic, Protestant, and other religious leaders argue that “religious institutions” should not be forced to violate their beliefs through compliance with the contraceptive mandate. At the beginning of their argument, the authors give an expansive definition of the term. They write: Such institutions include not only churches, synagogues, mosques, and other places of worship, but also schools and colleges, shelters and community kitchens, adoption agencies and hospitals, organizations that provide care and services during natural disasters, and countless other organizations that exist to put specific religious beliefs into practice.60

It is difficult to read this definition as anything other than expansive, incorporating virtually any organization within its purview. After all, organizations that “put specific religious beliefs into practice” could include not only houses of worship traditionally conceived, but also forprofit corporations, whether closely held (e.g., Hobby Lobby Stores, Inc.) or publically traded (e.g., Apple, Inc.). The letter’s authors, however, conclude their argument with a narrower definition. “If freedom of religion is a constitutional value to be protected,” they write, “then institutions developed by religious groups to implement their core beliefs in education, in care for the sick or suffering, and in other tasks must also be protected.”61 The term “developed by” narrows the classes of organizations that fall within the letter’s definition

60 “Free

Exercise of Religion: Putting Beliefs into Practice—An Open Letter from Religious Leaders in the United States to All Americans,” United States Conference of Catholic Bishops, June 2012, para. 1, http://www.usccb.org/issues-and-action/religious-liberty/fortnightfor-freedom/upload/Free-Exercise-of-Religion-Putting-Beliefs-into-Practice.pdf. 61 “Free Exercise of Religion,” para. 5 (italics mine).

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of religious institution. It suggests, for example, that the relevant entities are those founded or maintained by houses of worship. Nevertheless, the letter’s ambiguous use of the term at its inception sets the tone for an organizationally expansive definition. Even the narrowing qualification added at the letter’s conclusion is still organizationally broad. For instance, the phrase “developed by religious groups” could imply an ownership role (when a house of worship owns a charitable or business enterprise62 ), a founding role (when a house of worship founds an entity but then subsequently removes itself from ownership and/or control63 ), or even loose affiliation (when a house of worship is said to be part of a healthcare or education network in some extended, legally technical sense64 ). Any number of entities—indeed “countless other organizations that exist to put specific religious beliefs into practice”—can fit within this broad understanding. It must be conceded that the authors of the 2012 open letter did not deliberately intend to make an argument in defense of every type of entity, such as religiously inspired for-profit firms like Hobby Lobby. Given their institutional roles (which include bishops, presidents of faith networks, religious superiors, and a director of a Catholic healthcare system), it is likely that the authors intended to protect the religious liberty of a limited set of organizations—i.e., the religious institutions they directly represent. This point, however, does not correct or limit the authors’ expansive definition. Too easily is the term religious institution taken out of its original context; and too easily is it used to justify church freedoms for entities with highly tenuous religious commitments and affiliations. Normative questions follow: Should religiously inspired firms receive legal protections as if they were houses of worship? If not, 62 For

a discussion of not-for-profit organizations and ownership, see Henry Hansmann, The Ownership of Enterprise (London: Harvard University Press, 1996), 28, 35–39. 63 For example, the Roman Catholic healthcare system, Dignity Health, began under the auspices of an order of religious sisters. Today it retains a Catholic ethos without being managed directly by a religious order. See “Our History: Rooted in Kindness,” Dignity Health, accessed May 9, 2020, https://www.dignityhealth.org/about-us/our-organization/mission-vision-and-values. 64 For example, Methodist Health System is contractually bound to the North Texas Conference of the United Methodist Church through a written covenant. See “Covenant Between North Texas Conference of the United Methodist Church and Methodist Hospitals of Dallas,” Methodist Health System, accessed May 9, 2020, https://www.methodisthealthsystem.org/docume nts/CovenantwithUnitedMethodistChurch.pdf.

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what are just criteria by which to distinguish church freedoms from non-church organizational exemptions? One way to begin answering these questions is to adopt a different framework when dealing with the religious liberty disputes of non-church entities. One other ecumenical statement—again made against the federal government’s contraceptive mandate—displays a more promising approach to organizational exemptions than the overextension of the religious-institution framework. Immediately after the controversial Hobby Lobby ruling, a collection of religious leaders urged Congress to keep the Religious Freedom Restoration Act (RFRA)65 —the legislation used to exempt closely held family firms from the contraceptive mandate—in place, that is, without amendment or repeal. Their letter, entitled “Protecting the Religious Freedom Restoration Act of 1993,” eschews the religious-institution model altogether and instead focuses upon the relevant flesh-and-blood individuals. Its individualist flavor is captured neatly towards the beginning of its argument. The authors write: “Not one of Congress’s 535 Members suggested that this landmark new law [RFRA] would not protect a person’s free exercise of religion if she chose to provide for herself, her family, and her employees by starting a business.”66 An individualist model has several strengths. First, it does not stretch the freedom of the church beyond its conceptual capacities through a forced use of the term religious institution. Indeed, “houses of worship” or “religious organizations” need not be invoked in this form of corporate religious liberty. Second, the individualist model emphasizes the natural persons directly burdened. This has the potential effect of demystifying discussions around the moral and legal rights of artificial corporate persons. And, third, due to the particular legal context in which it was suggested, the individualist model is shaped by a statutory framework (RFRA) that explicitly subjects religious liberty claims to governmental interest-balancing. So long as such balancing is not merely consequentialist, and indeed exhibits the Christian virtue of prudence, 65 Religious

Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (2017). the Religious Freedom Restoration Act of 1993—Letter to Congress,” United States Conference of Catholic Bishops, published June 30, 2014, para. 2, http://www.usccb. org/issues-and-action/religious-liberty/upload/Faith-Communities-RFRA-Letter-to-Congress.pdf.

66 “Protecting

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then it should be explicitly adopted in non-church—or religious heterogeneous—contexts (see further discussion at Sect. 4.3 especially). Having thus indicated the individualist character (and particular strengths) of an ecumenical approach, I turn now to an examination of how the Catholic and Protestant traditions might separately conceive of a theory of organizational exemptions.

2.3.2 A Catholic Perspective on Organizational Exemptions Recall that human dignity, conscience, and truth constitute the moral foundations of a Catholic vision of religious liberty. It is the latter concept, truth, that adds doctrinal substance to the ideas of human dignity and conscience, such that each must be seen in light of God’s creative and salvific work in humankind and in light of the practical moral reasoning with which each person is endowed. Without exhaustively detailing the socially transcendent moral truths available to practical reason, the Compendium, Gaudium et spes, and other magisterial documents affirm their reality and the limits they impose upon all action, including the religious and religiously inspired actions of Catholic and non-Catholic individuals.67 An important consequence of this affirmation is the adoption of a comprehensive moral standard— at once theological and philosophical—that is useful for evaluating whether certain actions should, or should not, be free from government coercion.68 There are at least two ways in which the Church’s moral realism can be used. The first pertains to (i) distinctly Catholic actions, such as reception of the Eucharist, and (ii) actions following from the Church’s moral vision, such as the restriction of legalized abortion within a nationstate. These are actions that, considered in themselves, should be free 67 Compendium of the Social Doctrine of the Church, para. 130; Gaudium et spes, para. 16; and Catholic Church, Catechism of the Catholic Church (London: Geoffrey Chapman, 1994), para. 1951 (henceforth, cited with title and paragraph only). 68 Griffin, “Commentary on Dignitatis Humanae,” 253; Dignitatis humanae, para. 2; and Catechism of the Catholic Church, para. 1951.

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from governmental interference precisely because they are basic requirements of Catholic moral theology.69 The second use of the Church’s moral realism pertains to religious actions deemed broadly compatible with a Catholic moral vision. These actions might include Islamic worship, insofar as it expresses the human search for religious truth,70 or the governmental restriction of religious terrorists, insofar as this helps preserve the temporal common good.71 Such actions, also considered in themselves, should be free from governmental interference (or, in the case of restricting the movements of religious terrorists, should be taken up by government action) precisely because they are compatible with Catholic morality. Yet, while it may be the case that certain actions are religious or religiously inspired, the Church’s moral realism may not ultimately support their legal protection or endorsement. For example, while the Church would in general support the establishment of Catholicism as a state religion or a situation in which no individuals commit the sin of fornication, various situations would stop the Church from insisting on the former or endorsing governmental police powers to bring about the latter. These situations can vary widely in nature, from historical circumstances to the sheer impossibility of practical enforcement. So recognition of particular circumstances, in addition to respect for socially transcendent moral principles, ultimately informs the Church’s ethical position toward religious liberty claims in general. This is no less true with respect to non-church organizational exemptions. In disputes involving corporate rights, the nuances of particular circumstances must be taken into account. Take, for example, the religious freedoms of wedding vendors. In my opinion, the U.S. Supreme Court’s ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) in favor of a Christian baker’s religious exercise was ethically justifiable from a Catholic perspective.

69 Dignitatis

humanae, para. 2, 10. humanae, para. 4. 71 John Finnis, “Religion and Public Life in Pluralist Society,” in Religion & Public Reasons: Collected Essays; Volume V (Oxford: Oxford University Press, 2011), 42, 54–55. 70 Dignitatis

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Justifiable as well was the Court’s insistence that rules concerning religious neutrality should be applied evenly between similar cases.72 At the same time, however, I also think that a Catholic position could accept the Court’s argument that state interests “could have been weighed against [the Christian baker’s] sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.”73 Such favoring of state interests could be morally justified if we recognize that (i) exemptions for public accommodations like bakeries can create unequal access to the marketplace and that (ii) situations of unequal access can be incompatible with the temporal common good, over which the state has responsibility. Undoubtedly there will be disagreement within Catholic circles over what the temporal common good demands in these kinds of situations; thus, particular circumstances must be taken into account to encourage prudent moral deliberation and no mere calculus over incommensurable goods (see further discussion at Sect. 7.3 below).

2.3.3 A Protestant Perspective on Organizational Exemptions In contrast to a Catholic approach to organizational exemptions, which focuses on moral deliberation according to a particular ethical system, a broadly Protestant approach tends to emphasize morally relevant concepts generally acceptable to varieties of Christian traditions— concepts such as (i) individual conscience, (ii) the plurality of organizational contexts for conscientious activity and, as a limiting dimension, (iii) a conditioned respect for democratic procedures. Having already discussed individual conscience (see Sect. 2.1), I turn immediately to the latter two concepts.

72 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018) (Ginsburg, J., and Sotomayor, J., dissenting) (holding that the “Commission did not comply with the Free Exercise Clause’s requirement of religious neutrality”). 73 Masterpiece, 138 S.Ct. at 1722.

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On an ecumenical Protestant account, the activity of conscience pertains to the individual and to communities.74 Moreover, according to the 1961 Statement on Religious Liberty, the right to religious freedom, being “essential to the expression of [the individual’s] inner freedom,” is not restricted to a particular type of communal context. For instance, the Statement is fairly explicit about the practice, and rights, of religious conscience within economic associations. The Statement reads: “[Religious liberty] includes freedom to practice religion or belief, whether by performance of acts of mercy or by the expression in word or deed of the implications of belief in social, economic and political matters, both domestic and international.”75 On this understanding, churches and even for-profit firms are viable and ethically appropriate places to exercise religion: With regard to conscientious activity and a corresponding right to it, there is no fundamental difference between these organizational-types. A right involving wide organizational applicability is also affirmed in Protestant responses to the federal government’s contraceptive mandate. Consider the amicus brief penned by numerous theologians in support of Hobby Lobby. The brief holds that “requiring a Protestant Christian to choose between violating the Government’s regulations or violating his sincerely held religious beliefs substantially burdens his exercise of religion.”76 This argument relies upon several tenets of Christian doctrine, including (i) the requirement that “faith govern every aspect of a Christian’s life,”77 (ii) the vocation to engage in “seemingly secular work because of its concomitant spiritual dimension,”78 and (iii) refraining from aiding or abetting another’s wrongdoing, lest one “sin against Christ” (1 Corinthians 8:9–13).79 Notably, each of these doctrinal points is applicable to believers in any organizational context. Supporting this 74The

Third Assembly of the World Council of Churches, “Statement on Religious Liberty, New Delhi 1961,” 36, line 34. 75The Third Assembly of the World Council of Churches, 36, lines 45–49. 76 Brief for 38 Protestant Theologians et al. as Amici Curiae in Support of Hobby Lobby and Conestoga, et al. at 4, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014) (No. 13-354). 77 Brief for 38 Protestant Theologians at 6. 78 Brief for 38 Protestant Theologians at 11 (italics in original). 79 Brief for 38 Protestant Theologians at 24.

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position, the brief states: “Historically, the Protestant Reformation of the 16th and 17th centuries brought about a revitalized view of vocation, wherein all work done in faith by God’s people was sacred, whether accomplished in the church and monastery or in the fields and courthouse.”80 Hence, we are to understand that Christians are called to live “in accordance with the dictates of their faith and conscience,” no matter the particular occupation or organizational setting.81 An exemption regime of wide organizational applicability requires practical limits however, since conscientious activity of one sort may unjustly infringe upon the conscientious activity of another type. To address this issue, the World Council of Churches and Protestant critics of the contraceptive mandate point us towards practical limits provided by liberal democratic procedures. The 1948 Declaration on Religious Liberty, we recall, affirms that the “[political] community has the right to require obedience to nondiscriminatory laws passed in the interest of public order and wellbeing.” Without explaining what the “public order” or “well-being” entails, the Declaration tacitly acknowledges the (moral) legitimacy of laws that do, in fact, infringe upon religious exercise—whether engaged in by religious organizations (who are encouraged to protect the “corporate and individual rights of the entire [political] community”) or by other types of corporate entities (such as for-profit firms).82 A deferential position towards government activity is also evident in the contemporary debate. As stated in their letter to Congress, Protestant and other religious leaders recognize that the government can interfere with someone’s free exercise of religion—though, only on condition that “a very high level of proof ” is met.83 This, I take it, is not an opportunistic approval of positive law, an acceptance of legal regulations only until they inconvenience one’s beliefs or lifestyle. Instead, it is a practical reflection of Christ’s command to “render to Caesar the things 80 Brief

for 38 Protestant Theologians at 15 (italics in original). for 38 Protestant Theologians at 23. 82The First Assembly of the World Council of Churches, “Declaration on Religious Liberty, Amsterdam 1948,” 7, lines 52–55. 83 “Protecting the Religious Freedom Restoration Act of 1993—Letter to Congress,” para. 4 (referencing Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1(b) [2017]). 81 Brief

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that are Caesar’s, and to God the things that are God’s.”84 Relatedly, the Protestant amicus brief put forward ahead of Hobby Lobby references the “accommodation” of religious exercise in light of neutral laws of general applicability.85 This suggests that Christian theology accepts the legitimacy of democratic procedures, which may result in laws that unintentionally burden conscience (e.g., the contraceptive mandate), as well as laws that protect religious exercise (e.g., RFRA). Certainly, then, a Protestant position does not reject outright the legitimacy of laws instituted through secular and democratic means. That said, it should be stressed that a Protestant approach to organizational exemptions is not characterized by blind obedience to governmental interests or an indiscriminate assertion of the rights of corporate conscientious activity. For one, there is room within theological frameworks to push back against legal regulations. Indeed, believers have the legal prerogatives and theological resources to conscientiously object to certain laws and thus seek relief (as with alternatives to conscription in time of war), to judge some laws as entirely unjust and thus seek their repeal (as with the contraceptive mandate when applied to public-serving religious institutions), and to defend still other laws as necessary for the reasonable living-out of one’s faith in society (e.g., RFRA or the Religion Clauses of the First Amendment).86 Furthermore, a Protestant perspective on organizational exemptions demands personal and societal virtues in order for diverse and often competing rights claims to be handled reasonably between litigating parties. In this regard, the virtues of responsibility and respect are paramount. As the World Council of Churches states: “The freedom with which Christ has set us free calls forth responsibility for the rights of others. The civil freedom which we claim in the name of Christ must be freely available for all to exercise responsibly.”87 In other words, a Protestant vision of organizational exemptions entails reasonable application through respect for others’ rights, whether 84 Mark

12:17 (RSV). for 38 Protestant Theologians at 20. 86 See United States Conference of Catholic Bishops, Our First, Most Cherished Liberty, 7; and “Free Exercise of Religion,” para. 5. 87The First Assembly of the World Council of Churches, “Declaration on Religious Liberty, Amsterdam 1948,” 7. 85 Brief

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God-given and subsequently recognized in law or promised through democratic deliberation.

2.3.4 Summary A theory of organizational exemptions constitutes what I consider to be the second form of corporate religious liberty that is discernible in ecclesial statements from both the Catholic and Protestant traditions. Table 2.3 provides a summary visualization. In contrast to the freedom of the church, which applies to religious organizations alone, a theory of organizational exemptions pertains especially to non-church entities that object to generally applicable laws on religious grounds. With respect to the actual agents or subjects involved, this theory emphasizes the flesh-and-blood individuals whose religious Table 2.3

Organizational exemptions: Catholic and Protestant

Aspects in common

Catholic

Protestant

Conceptual bases: individual dignity and rights; varying degree of attention to descriptive features of non-church entities, e.g., non-voluntary and religiously heterogeneous memberships

Applicable to non-church entities only Grounded in conscience and truth

Applicable to non-church entities and churches Grounded in conscience

Attending to the common good; consistent with an objective moral order

Respect for the state’s anti-discrimination laws passed for public order and well-being

Legal: negative right held by the individual or group against (undue) government interference Moral limits: exercised within just limits; involving political prudence and responsibility; recognize laws that are ratified by civil authorities

No moral right to error

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claims are at stake. And, while not denying their existence, it does not stress as a normative matter the group entities (or group agents) involved. The theory of organizational exemptions discerned here therefore shares an individualist framework with the freedom of the church model discussed above (see Sect. 2.2). There is, however, an important distinction between the individualism of organizational exemptions and the individualism of the freedom of the church. I here address this distinction preliminarily and later flesh out its conceptual bases and legal implications (see Sect. 4.2 especially). Perhaps the most distinctive feature of the individualist framework of the freedom of the church is its complementary form of group realism, which holds that the Church herself is understood to have a supernatural personality or a sui generis agency following from various corporatist theological models, e.g., the Church as the mystical Body of Christ. By comparison, the individualist framework of organizational exemptions makes no reference to such group realism. Why? For one, nonchurch entities typically lack visible ecclesial structures, such as clerical roles, rites of worship, and sacraments—hence, their categorization as non-church. Within the Catholic tradition at least, visible ecclesial elements are more or less necessary for identifying the presence of the invisible Church of Christ, which (some) Catholics believe acts through a supernatural personality and subsists within the visible Roman Catholic Church (see Sect. 2.2.1 and Chapter 6). These doctrinal points are useful for our purposes because, if non-church entities like business firms lack visible ecclesial elements, then it is difficult to attribute the sui generis agency of the invisible Church to those organizations. It follows that non-church entities (presumably) lack a supernatural personality and therefore are poor subjects of a theologically grounded, strong group-realist defense. Missing a secure corporatist and theological ground, a theory of organizational exemptions is individualist to a greater extent than a theory of church freedoms. This point can hold for either a Catholic or Protestant construction. A question that follows is whether a heavy emphasis upon flesh-and-blood individuals affects the practical limits of organizational

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exemptions in general or, in other words, morally differentiates organizational exemptions from the freedom of the church. There is reason to think that it does. Consider a heavy individualist emphasis together with significant changes in organizational context. If the latter entails a change from a voluntary association to a non-voluntary kind, then the change entailed is morally relevant—especially within an individual-rights paradigm. Hence, on this individualist understanding, we may say that a legal exemption is morally justified when granted to a voluntary association, but that it is not justified when granted to, say, a state-run entity. This is so because an exemption for the latter is expected to infringe upon the rights of individuals (not) served. (Consider the freedom of churches to refuse officiating same-sex wedding ceremonies, in comparison to the lack of freedom for government bodies to do the same.) Practically speaking, then, a regime of organizational exemptions that takes seriously the diverse moral stakes involved will subject those rights, values, and interests (whether individual or corporate) to a procedure of careful deliberation (see Sect. 2.3.1). A similar procedure could be applied in circumstances involving church freedoms; but the religiously homogenous membership, the general organizational design, and the (theologically) corporatist defense involved would most likely weaken normative justifications for the use of explicit and heavy-handed government interference. At any rate, if such interference were to be used on churches, then there would be strong moral grounds to reject the application of organizational exemptions upon churches altogether: It could gloss over fundamental organizational differences of tremendous moral importance. So much for the churches’ teachings on organizational exemptions and on corporate religious liberty in general. Let us now address the various critiques and queries raised throughout this chapter in order to explore how our subsequent work may progress.

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57

Conclusion

Recall that the immediate aim of this chapter was twofold. First, it sought to uncover foundational normative principles from the churches’ teachings on (corporate) religious liberty. Second, it sought to understand how the churches’ contribution to the contemporary debate might be improved, particularly with respect to the individual–group divide and related issues. With the first aim achieved, allow me in this concluding section (i) to briefly summarize the churches’ teachings and (ii) to make explicit the group-ontological direction our improvements will take. To begin, it will be useful to re-iterate that my primary aim in this book is not to critique the churches’ normative reflections at a foundational level. I largely assume the strength and validity of the relevant moral principles and so readily integrate them into a renewed account of corporate religious liberty. In doing this, I am able to focus upon the application of those principles as occurs when answering the book’s guiding question, concerning to whom or to what corporate religious liberty applies. Accordingly, my proposed account does not build a new normative theory from scratch. Instead, it demonstrates how we can apply the churches’ established moral teachings in a novel and focused manner—that is, in a manner informed by the Christian tradition’s group ontology. Having thus noted the moral conservatism (so to speak) of this project, let us review the churches’ teachings from our discussion above. We will take these positions forward into the remainder of the book. Section 2.1 made evident that the churches’ conception of religious liberty is grounded in an ethically salient theological anthropology. According to this anthropology, the human person is created to respond freely to God. Hence, as a normative matter, legal and social arrangements must be such that the person is able to respond freely in actual fact. This response entails following one’s conscience (where God is heard calling); and it entails conforming to a universally accessible order of moral and religious truth (especially, though not exclusively, in a Catholic understanding). As for the legal and social arrangements required, the churches consider religious liberty to be a negative right that is held by an individual or community against governmental interference. This right

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is by no means absolute, however. Its exercise requires political prudence and responsibility, especially with regard to anti-discrimination laws and other prerogatives of the civil state, which has charge over the temporal common good. The idea that the state has a particular task in relation to human wellbeing was elaborated upon in Sect. 2.2, where the churches’ first form of corporate religious liberty—the freedom of the church—was discussed. The freedom of the church, we found, is a normatively complex theory. As articulated by the churches, it is demarcated by an action-based approach, which recognizes specific functions proper to churches that generally merit non-interference from civil authorities. In addition, it is understood to entail a negative right or liberty, which, in a corporate context, could be understood in two ways: (i) as a derivative group right, i.e., a right whose normative ground is derived from relevant individual rights, or (ii) as a sui generis group right, justified in part by the normative relevance of the invisible Church’s agency and/or the moral good(s) that groups bring to individuals and society. Finally, Sect. 2.3 gave an interpretation of the churches’ emerging theory of protections applicable to non-church entities such as for-profit enterprises. At its normative core, the theory of organizational exemptions emphasizes individual rights, especially the freedom of conscience as exercised within any organizational setting. It also explicitly subjects the individual rights identified to interest-balancing, which, when understood to entail the full use of practical moral reason, is meant to facilitate the exercise of organizational exemptions with responsibility and with a Christian moral vision in mind. Finally, in comparison to the freedom of the church, the churches’ theory of organizational exemptions has an acutely individualist character, given its lack of a complementary and theologically corporatist defense. Thus the churches’ understanding of corporate religious liberty has much to offer, especially with respect to conceptual bases, legal dimensions, and moral limits. At a general level, the constituent principles are unproblematic. But their application to disputes requires careful consideration of the appropriate moral and legal subjects involved. On this point, the churches’ contribution has been inadequate: We have seen

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church statements that (i) reduce religious institutions to voluntary associations, (ii) over-emphasize individual rights in the context of church freedoms, and (iii) apply the term religious institution too broadly (see Sects. 2.2.3 and 2.3.1 especially). These tactics display an inadequate distinction between group-types. But, more problematically, they display a negligence toward the descriptive—that is, toward the empirical question concerning to whom or to what corporate religious liberty applies. What the churches need, therefore, is a description-led approach, one that sufficiently addresses this ethically salient empirical question. Such an approach, however, is difficult to put forth. As I discuss in the next chapter, the description-led approach is not popular in today’s debate, especially among political liberals that are metaphysically averse. Indeed, prominent theorists contend that group descriptions should follow from moral commitments and not proceed the other way around. But, as I argue below, the morally driven approach is methodologically unsound. It creates an image of what social reality should be and then forces that image upon reality without due regard to objective descriptive facts and other (unaccounted for) normative values. Following John Finnis, we can say that this approach to rights ascription creates a “self-‘validating’ fiction” and ignores “social reality as best we can understand.”88 As I see it, then, the central task of a Christian approach to corporate religious liberty is to understand social reality—especially organizational life and its relation to corporate religious exercise—as accurately as possible. No less important, a separate and subsequent task involves determining how the churches’ moral reflections on religious freedom might bear upon the religious aspects of social reality and thus support (and appropriately limit) corporate religious exercise. Therefore, the question that remains concerns the manner in which a descriptive and normative approach will be developed. Indeed, how shall we understand social and group reality so as to improve upon the churches’ approach to corporate religious liberty?

88 John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 28.

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Building on the overview given in Sect. 1.4, allow me to narrow in on our group-ontological starting point. Briefly put: I propose the development of a renewed approach to corporate religious liberty, one that places a “modest” form of group ontology at its descriptive core (see Sect. 1.3). Attributable to Saint Thomas Aquinas, this ontology primarily views groups as verbs—that is, as the group-agential actions of coordinating individuals. For our purposes, Aquinas’s ontology has several advantages. For one, it allows us to describe groups with descriptive insight and accuracy. By examining the coordinated actions that create groups, Aquinas’s group ontology can describe how those actions work together to constitute group agents, investigating both the ends to which the actions are aimed and the conditions that cause the actions, and thus group life, to occur. Furthermore, Aquinas’s ontology can be used to morally evaluate the group life observed, drawing attention to the freely chosen actions of the coordinating individuals. Such perspective helps inform the moral deliberations that support, or that are involved with, corporate rights ascription. Accordingly, through its moral use, Aquinas’s group ontology can aid in our response to important normative questions, such as: Why should we extend religious freedoms to this or that group-type? How will social relations be affected? Should we accept those effects and actions as morally appropriate? The next chapter engages extensively with the idea of group ontology in general and in its descriptive and normative aspects. Having thus summarized (i) what the churches’ understanding of corporate religious liberty is, (ii) how it could be developed in terms of this book’s guiding question, and (iii) the basic descriptive-to-prescriptive movement that my approach takes, let us turn immediately to the political liberal challenge of group-agency skepticism.

3 Group Ontology and Skeptical Arguments

In the previous chapter, I suggested that a useful way to develop a Christian approach to corporate religious liberty entails (i) using group ontology to identify the subjects involved, then (ii) considering the moral issues raised in light of the descriptive facts discerned. This manner of proceeding, however, is either misused in, or precluded from, the contemporary debate. As we will see, there are prominent theorists who are content in creating descriptive fictions out of groups in order to justify unreasonable moral or legal conclusions. There are also those who eschew group-ontological descriptions altogether, claiming them to be indeterminate with respect to legal conclusions and thus having no useful purpose for the ascription of legal rights. If we are to execute our program of theological development, we must address these contentions head-on. Thus, the central task of this chapter is apologetic. In particular, this chapter examines and critiques three accounts of group ontology (or group agency) that are, or have been, deployed in an attribution of legal rights. Section 3.1 begins with Justice Ruth Bader Ginsburg’s attempt to eliminate group agency for profit-making corporations. Section 3.2 engages with James D. Nelson’s social theory of conscience, which reduces group agency to certain group-types. And Sect. 3.3 confronts © The Author(s) 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3_3

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Richard Schragger and Micah Schwartzman’s agnostic approach to group agency, which holds the Deweyean-inspired belief that group ontology distracts from the moral work required for legal rights ascription. Common to the three accounts is a general skepticism held towards (i) extending religious freedoms to for-profit corporations and/or (ii) the possibility of accurately describing groups apart from a normatively biased agenda. Following the distinct character of each, I refer to the three accounts as the elimination, reduction, and agnosticism approaches respectively. We begin with a brief assessment of Justice Ginsburg’s elimination approach.

3.1

Justice Ginsburg and Group-Agency Elimination

Justice Ginsburg’s elimination approach is articulated in her dissenting opinion in Burwell v. Hobby Lobby Stores, Inc . (2014). It relies upon traditional theories of the corporation, which are used to deny the possibility of for-profit group agency and thus religious exemptions for for-profit firms.1 Her approach, however, is over-inclusive, applying to churches and other religious entities; and it evinces an unfamiliarity with state corporation law, which helps make group agency possible. As demonstrated below, it is apparent that an elimination approach based upon Ginsburg’s construal is misguided. Nevertheless, the moral rationale behind Ginsburg’s skepticism—a rationale concerned with third-party harms and respect for individuals—is worth our attention.

3.1.1 Appropriation of Corporate Theory To assess Ginsburg’s approach, consider the following excerpt from her dissenting opinion in Hobby Lobby. She writes:

1 Burwell

v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2794 (2014).

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Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA [the federal Religious Freedom Restoration Act]. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” … Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.”2

Within this argument, Ginsburg references two types of corporate theory: artificial entity theory (which holds that corporations are artificial creations of the state) and real entity theory (which, on some accounts, views corporations as metaphysical beings that have minds and intentions of their own).3 Given that the study of corporate theory is constituted by more perspectives than these,4 we wonder: Why does Ginsburg emphasize these two theories in particular? The most obvious response is that each theory, when set against each other, offers a clear choice: Either firms do have consciences, beliefs, and desires, and thus can ask for religious exemptions. Or they do not have consciences, beliefs, and desires, and so cannot. Reference to Justice Stevens highlights the absurdity of the former, driving home the point that only flesh-and-blood individuals are “person[s]” who “exercise religion.”5 Behind this dichotomy lies a normative contention, one that ultimately explains the motivation behind Ginsburg’s corporate theory argument. Indeed, her argument is framed by a general dissent against the Court’s decision to extend RFRA protections to closely held for-profit corporations. She thinks that this decision will apply to all commercial enterprises, allowing them to “opt out of any law … they judge 2 Hobby

Lobby, 134 S.Ct. at 2794 (citations omitted). an overview of types of corporate theory see Eric W. Orts, Business Persons: A Legal Theory of the Firm (Oxford: Oxford University Press, 2015), 13–15. 4 For example, see those discussed at Sect. 3.3.3. 5 Hobby Lobby, 134 S.Ct. at 2793. 3 For

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incompatible with their sincerely held religious beliefs.”6 Her dissent thus shares in the spirit of Justice Scalia’s law-unto-himself argument in Employment Division v. Smith (1990),7 but it especially focuses upon the potential harms that exemptions could cause to third parties, “in these cases, thousands of women employed by Hobby Lobby.”8 In short, Ginsburg believes that the recognition of for-profit exemptions will have deleterious social consequences; and her use of corporate theory is meant to convey both the moral and logical absurdity of such exemptions. But, as confident as this approach may sound, its strength relies upon that confidence as opposed to a solid logic. There are at least two reasons why we should reject its eliminative vision and thus its conclusions against for-profit exemptions.

3.1.2 Churches, For-Profit Corporations, and Religious Exercise The first reason can be quickly addressed. Ginsburg writes that “the exercise of religion is characteristic of natural persons, not artificial legal entities.”9 But this statement fails to acknowledge that churches and other religious organizations are (often) incorporated under law and therefore count as artificial legal entities. By her logic then, they— along with for-profit firms—would be incapable of exercising religion. Yet Ginsburg must have been aware of the difficulty of this conclusion, since, after stating her argument, she immediately changes course to emphasize the Court’s well-recognized doctrine of institutional religious autonomy.10 Thus, with corporate theory left behind, what compelling reason is there to adopt Ginsburg’s corporate theory argument? A second reason to reject Ginsburg’s approach pertains to religious exercise within, or through, for-profit corporations. State corporation 6 Hobby

Lobby, 134 S.Ct. at 2787. Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872

7 Employment

(1990). 8 Hobby

Lobby, 134 S.Ct. at 2787. Lobby, 134 S.Ct. at 2794. 10 Hobby Lobby, 134 S.Ct. at 2794–7. 9 Hobby

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laws—including those of the Oklahoma Statutes under which Hobby Lobby is incorporated—often speak of group religious exercise as occurring through not-for-profit corporations alone.11 This narrow treatment suggests that there is no legal basis for individuals to exercise religion through a for-profit corporate form. Lacking such provision, religious group agency is impermissible (i.e., eliminated) for for-profit firms; subsequently, for-profit corporations would lack standing in religious liberty disputes; and this indeed is the situation that Ginsburg herself seems eager to bring about. We can easily raise two arguments against this eliminative conclusion. First, it is technically possible—and practiced in actual fact—for businesses to exercise religion when controlled by religious organizations. The Oklahoma Statutes, for instance, allow charitable organizations to directly own and control commercial enterprises.12 These firms contribute to a parent company’s religious purpose; hence, they too can exercise religion. A second and simpler reason behind the possibility of for-profit religious exercise turns upon what state law does not say. Consider Oklahoma’s regulations on organizational purpose: Its certificate of incorporation requires the declaration of the “nature of the business or purposes to be conducted,” which is presumed to entail “any lawful … activity for which corporations may be organized under the general corporation law of Oklahoma.”13 Since this law does not describe religion as unlawful, it follows that the state does allow corporations to have religious purposes. So much for Justice Ginsburg’s eliminative claims otherwise.

3.1.3 Christian Ethical Overlap Limitations notwithstanding, we must admit that the underlying rationale of Ginsburg’s elimination approach has a certain Christian ethical merit.

11 Oklahoma

Solicitation of Charitable Contributions Act, 18 OK Stat § 18-552.2 (2014). OK Stat § 18-549 (2014) (italics mine). 13 18 OK Stat § 18-1006(A) (2014). 12 18

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Recall that Ginsburg, in failing to pare back the untoward conclusions of her corporate theory argument, immediately pivots to the Court’s long-standing doctrine of institutional religious autonomy (see Sect. 3.1.2). According to Ginsburg, the autonomy of religious organizations is meant to further “individual religious freedom” for those who voluntarily associate in a religious community. And, being restricted to voluntary associations alone, the doctrine is intended to protect nonadherents from third-party harms, which may follow if presumably secular and non-voluntary entities, such as for-profit firms, are granted religious exemptions.14 From a Christian ethical perspective, both moral rationales are of legitimate concern. The Roman Catholic Church and the World Council of Churches recognize the need for individuals to respond freely to God. They therefore affirm the moral necessity of freedoms to religious belief and exercise. Yet both acknowledge that the exercise of religious freedom requires responsibility. As understood within the Catholic tradition, religious freedom involves political prudence, discernment of the common good, and respect for legal regulations that are ratified by legitimate civil authorities and consistent with an objective moral order. Relatedly, the World Council of Churches holds that the exercise of religious freedom must respect laws passed in the interest of public order and well-being, emphasizing anti-discrimination laws in particular (see Sect. 2.1). There are at least two implications of this overlap between Ginsburg’s moral concerns and the Christian tradition’s perspective on religious freedom. First, we note that a political liberal emphasis upon individual rights and public order is not alien to Christian ethics. In fact, the Christian tradition places a strong emphasis upon both. It of course differs from political liberal conceptions with regard to anthropological and ultimate metaphysical grounds. Nevertheless, the practical overlap between both approaches is relatively apparent and, at minimum, gives some common language for (potentially) meaningful dialogue (see Sects. 4.3 and 6.3). A second implication pertains to distinct forms of corporate religious liberty. Along with other group-agency skeptics, Ginsburg argues 14 Hobby

Lobby, 134 S.Ct. at 2794, 2805–6.

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that free exercise rights should be restricted to religious groups—specifically “churches and other nonprofit religion-based organizations.”15 This implies a single form of corporate religious liberty, applicable to a narrow organizational-type. But the Christian tradition (and a majority of the Hobby Lobby Court) does not restrict the exercise of religious freedom to one type of group. In proposing that religious freedom be exercised with responsibility and political prudence, the Christian churches never suggest that religious exercise should be restricted to religious organizations alone. In fact, the churches break with Ginsburg’s restrictive position and explicitly endorse non-church organizational freedoms whenever deemed prudent and in accord with various ethical requirements (see Sect. 2.3). Thus, from a Christian perspective, Ginsburg’s ethical concerns need not, and should not, culminate in restrictions of narrow organizational applicability. A Christian approach to individual rights would grant more room for prudence in moral and legal evaluation; accordingly, it would endorse a theory of organizational exemptions.

3.2

James D. Nelson and Group-Agency Reduction

The next skeptical approach to address is a reductive form proposed by legal scholar James D. Nelson, who merits our attention in large part because of the emphasis he gives to the idea of group or corporate conscience. In the contemporary debate, this focus distinguishes Nelson’s work from others who generally stress interpretations of the Religion Clauses16 or standard theories of corporate personality.17 While each subject area adds value to the ongoing debate, most scholarship on 15 Hobby

Lobby, 134 S.Ct. at 2794. example, see Paul Horwitz, “Defending (Religious) Institutionalism,” Virginia Law Review 99, no. 5 (2013): 1049–63; and Richard Schragger and Micah Schwartzman, “Against Religious Institutionalism,” Virginia Law Review 99, no. 5 (September 2013): 918–85. 17 For a sampling of this line of argument, see Mark Rienzi, “God and the Profits: Is There Religious Liberty for Money-Makers?” George Mason Law Review 21, no. 1 (2013): 59–116; and Hobby Lobby, 134 S.Ct. at 2787. 16 For

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these topics fails to sufficiently address how conscience grounds a right to religious liberty and how conscience transfers from individuals to corporate entities. Nelson’s 2013 article, entitled “Conscience, Incorporated,” fills this void by offering a “social theory of conscience,” developed with the purpose of assisting courts in their identification of viable claims of corporate conscience—or, differently put, group agency.18 Using Nelson’s own summary, I identify (and enumerate within) three parts to this theory: [The] social theory of conscience … seeks to connect individual interests to organizational structure. First, the theory identifies conscience as the normative core of religious free exercise. It then links the freedom of conscience to the concept of personal identity [Part 1]. Drawing on the various strands of the collective rights literature, and in particular the work of Meir Dan-Cohen, [it explains] how personal identity is in significant ways constructed through the internalization of various collective roles. At the core of the social theory of conscience is a distinction between identification with a collective, where one’s membership in a group is intimately tied to personal identity, and detachment, where one’s role in a group is external to the self [Part 2]. These individual modes of affiliation provide the building blocks for a conceptual scheme to classify what kinds of collectives can make intelligible claims of institutional conscience [Part 3].19

Reviewing its parts, we note that Nelson’s social theory of conscience is both descriptive and prescriptive. It is descriptive insofar as it identifies how conscience functions (Part 1) and how individuals relate to various types of collectives (Part 2). It is prescriptive insofar it recommends which types of collectives deserve free exercise rights based on the shared conscience commitments of their members (Part 3). Judged valuable either in whole or in part, Nelson’s theory has been endorsed by prominent scholars including Richard Schragger,

18 James D. Nelson, “Conscience, Incorporated,” Michigan State Law Review 2013, no. 5 (2013): 1565–1620. 19 Nelson, 1568 (italics in original).

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Micah Schwartzman and, more recently, Cécile Laborde.20 Despite these endorsements, the question remains as to whether we should accept the strict conclusion of Nelson’s theory—namely, that, due to tenuous claims of corporate conscience, religious freedoms should generally be withheld from for-profit corporations. To this reductive conclusion, I offer three reasons for disagreement, aligning each reason with a distinct part of Nelson’s theory and drawing upon Christian ethical, empirical, and legal resources to make my case.

3.2.1 Conscience Reconceived A first objection to Nelson’s theory concerns its portrayal of conscience. According to Nelson, the definition of conscience must be construed with regard to free exercise law. As such, it is understood not as an ability to distinguish right from wrong, but rather as a conceptual vehicle by which individuals make commitments and thus author their personal identities. Nelson writes, “[It is the] process of selecting our commitments, integrating them with other aspects of our identity, and then applying those commitments to future projects … [that entails] the autonomous process of self-authorship.” This autonomous process alone justifies respect for the freedom of conscience; and freedom of conscience, in turn, serves as the singular justification for protecting religious exercise.21 This understanding of conscience has some use for free exercise purposes.22 But we should not accept it as complete. Indeed, its minimal content generates what we might call a dilemma of motivation—that is, an inability to explain why we should commit ourselves to certain beliefs 20 Richard Schragger and Micah Schwartzman, “Some Realism About Corporate Rights,” in The Rise of Corporate Religious Liberty, ed. Micah Schwartzman, Chad Flanders, and Zöe Robinson (Oxford: Oxford University Press, 2016), 368; and Cécile Laborde, Liberalism’s Religion (London: Harvard University Press, 2017), 184. 21 Nelson, “Conscience, Incorporated,” 1575–8. 22 For arguments against the claim that freedom of religion is based solely on the freedom of conscience, see Germain Grisez, The Way of the Lord Jesus, vol. 1, Christian Moral Principles (Chicago: Franciscan Herald Press, 1983), 76–7, chap. 3, q. B, para. 9 (henceforth this volume of Grisez’s work is cited with the abbreviated title CMP, chapter, question, and paragraph number: e.g., CMP, chap. 3, B-9).

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and practices, and why we should incorporate them into our identities. A satisfactory response to these questions is necessary. And this seems especially so in the for-profit context. For example, consider a social impact fund such as the Fondo Inversión Social (FIS), which is managed by the Chilean-based private equity firm, Ameris Capital.23 This fund allows agents in the private sector to invest in projects that generate social benefits in addition to financial returns. What motivates Ameris Capital’s commitment? It certainly is not the desire to partake in an “autonomous process of self-authorship.”24 (Why is that a good thing to do?) And it cannot be the mere assertion that this is the “right thing” to do. (Why not do the wrong thing?) Indeed, neither reason fully explains why individuals or groups partake in moral, or conscience-based, activity. We therefore need a richer theory of conscience than Nelson’s in order to understand why individuals take on moral commitments of the kind that Ameris Capital does. The Roman Catholic theologian and natural lawyer Germain Grisez offers a useful starting place to better understand conscience. In his work Christian Moral Principles, Grisez defines conscience as “an awareness of moral truth.” He elaborates: Only at this level are moral good and evil fully understood and rightly located in the freely choosing person who confronts the reality of the world and human possibilities. Wrongdoing is seen to lie … in refusing to make the commitments and enter into the communities in which one might hope to be fulfilled .25

Two items are worth pulling out of this definition. First, we consider the phrase, “the reality of … human possibilities.” According to Grisez, the process of exercising conscience entails a movement from principles to moral conclusions. The starting place of this movement consists of self-evident26 possible choices, things that are immediately understood as intelligibly worthwhile. Constituting these choices are forms of 23 “About

Us,” Ameris Capital, accessed May 11, 2009, https://en.fisameris.cl/fis-ameris/. “Conscience, Incorporated,” 1578. 25 CMP, chap. 3, A-5 (italics mine). 26 CMP, chap. 3, B-6; app. 1. 24 Nelson,

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“basic human goods”—life, justice, and friendship, for example. They include whatever ought “to be done and/or pursued, protected, and promoted.”27 The array of human goods, however, does not tell us what is morally good. “Rather,” as Grisez puts it, “they generate the field of possibilities in which choices are necessary.” To move toward moral conclusions, we require norms to guide our choices among possible human goods.28 For Grisez, these norms do not direct our choices towards a promise of the most good or least evil, as in a proportionalist theory.29 Instead, authentic moral norms direct our choices toward “integral human fulfillment.” This is an ideal state in which our choices avoid “unnecessary limitation” and maintain an “openness” to further instantiations of goods, and in which “all goods of human persons … contribute to the fulfillment of the whole community of persons.”30 Hence fulfillment, in a specifically personal and social understanding, becomes the guiding norm of our choices and commitments; it becomes the motivating force behind those commitments. Whether Grisez’s “integral human fulfillment” sufficiently accounts for our motivations to act is a question we cannot address in detail in the present chapter.31 But I here offer Grisez’s theory as an example of a system that is capable of explaining moral behavior in a more philosophically sophisticated manner than Nelson’s social theory of conscience. Let us therefore consider again Ameris Capital to see how Nelson’s and Grisez’s theories might account for the conscience-based activity of a for-profit entity. According to an FIS report, Ameris Capital has invested in several social ventures, including Lumni (a fund for disadvantaged students in

27 CMP,

chap. 7, C-3; chap. 7, D-2 through 4. CMP, chap. 7, E–F (the first principle of morality); and CMP, chap. 8 (the specifications of the first principle of morality, i.e., the modes of responsibility). 29 CMP, chap. 7, E-2. 30 CMP, chap. 7, F-2, F-4. 31 On the limitations of Grisez’s natural law theory, see Nigel Biggar and Rufus Black, ed., The Revival of Natural Law: Philosophical, Theological and Ethical Responses to the Finnis-Grisez School (Aldershot: Ashgate, 2000). 28 See

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technical schools), Promoeduc (a counseling provider for students), and Techo (an affordable housing NGO).32 If we apply Nelson’s theory of conscience to each venture’s efforts, we might at best describe their actions as an autonomous process of selfauthorship.33 But, if we view them through the lens of Grisez’s theory of conscience, then a more sophisticated picture appears. First, we see that each venture promotes certain basic human goods: Lumini promotes knowledge and skilled performance in work. Promoeduc promotes the reflexive goods of living at peace with others and inner consistency. Techo promotes bodily integrity and health.34 Next, we recall that the range of self-evident human goods must be chosen with a view towards integral human fulfillment. The investors must therefore ask themselves whether committing to any of these projects will limit the integral human fulfillment of themselves or those whom they will serve.35 Thus in actively seeking to promote instantiations of human goods, they bring fulfillment to their own lives (via profits and social capital) and the lives of others (via the promotion of various human goods). Certainly this is more motivating than mere self-authorship. Having recognized a certain sophistication in Grisez’s account, we now ask how it might positively affect free exercise analysis, particularly when handling the conscience claims of for-profit corporations. There are two points to consider. First, if we grant that individuals exercise conscience as a means to promote various forms of good,36 then it is easy to see why individuals would choose to act in joint ventures: A corporate effort would promote their shared vision of good, helping it reach new levels through collaboration and greater quantifiable impact. Second, by observing

32 Ameris Capital, Lecciones Aprendidas: Fondo de Inversión Social—FIS, December 2016, 14, http://en.fisameris.cl/wp-content/uploads/2018/07/lecciones-aprendidas-FIS-Diciem bre-2016.pdf. 33 Nelson, “Conscience, Incorporated,” 1578. 34 Germain Grisez, “Natural Law, God, Religion, and Human Fulfillment,” The American Journal of Jurisprudence 46, no. 1 (2001): 7. 35This question follows from Grisez’s modes of responsibility. See CMP, chap. 7, G-6. 36 CMP, chap. 7, F-2.

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corporate entities like Ameris Capital and its partners, we see that coordinating agents can create what is unmistakably a corporate conscience. In other words, through the recognized entity of Ameris Capital, and through the authority of those who can establish its ethos and aims, the agents involved can exercise the capacity to identify goods and to morally commit themselves to the realization of those goods, not as mere individuals but as a corporate body. At minimum, free exercise analysis should be cognizant of individuals who share the same moral commitments and who choose to advance those commitments through (the formation of ) corporate entities. Courts or legislative bodies that fail in this regard—that instead adopt Nelson’s truncated view of conscience—risk overlooking, and running roughshod over, the conscience-based activities of potentially countless corporate entities. As a threshold matter, this oversight would not bode well for any type of corporate claimant.

3.2.2 Active Identification with Business As argued above, Nelson’s social theory of conscience fails to identify the range of human goods that individual and corporate agents seek to promote. I now show how this oversight gives further reason to doubt the usefulness of Nelson’s theory for religious liberty purposes. Of particular concern is the theory’s “core,” as found in its second part—namely, its distinction between “identification” and “detachment.”37 Through this distinction, Nelson claims that modern corporate life encourages individuals to detach themselves from businesses. He thus concludes that corporations and other business entities can hardly be said to form corporate consciences.38 Let us probe this argument more closely. According to Nelson, conscience is shaped in large part by the various roles one assumes within collectives (thus the “social” aspect of his theory). These roles lend themselves to two types of relational patterns. The first kind of relationship, identification, describes the circumstances

37 Nelson, 38 Nelson,

“Conscience, Incorporated,” 1568. 1586, 1610.

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in which an individual considers membership in a group to be a “significant aspect of his personhood.”39 The role of parent, for example, provides a clear illustration of identification: “That role,” Nelson writes, “typically involves a close connection between the parent’s duties and that parent’s identity as a person.” Moreover, the family group itself becomes part of the parent’s identity, so much so that “other aspects of [his or her] identity must be arranged or re-arranged to be consistent with that association.”40 The second kind of relationship, detachment, entails a markedly different form of relational pattern. Exemplified by the telephone operator at a large multinational corporation, detachment describes roles wherein “individuals regard the collective’s goals and values as distant from their own personal identity.” It “is characterized by interlocking instrumental motivations and goals,” including “a mixture of financial incentives and implicit threats of negative treatment if … performance does not meet externally imposed standards.”41 The distinction between identification and detachment is attributed to social expectations that typically accompany a role. For Nelson, “the norms that accompany collective roles, in significant respects, write the ‘script’ for social behavior and heavily influence the way that individuals relate to collectives.” Thus, despite idiosyncratic behaviors of parents (who might detach from their families) and telephone operators (who might closely identify with their firms), social expectations and patterns of behavior are “more or less defined.”42 That, however, is Nelson’s view. And we need not accept it as complete or accurate of human behavior in the business context. Indeed, Grisez’s natural law theory offers strong theoretical—including theological— insights that counter this portrayal; and emerging empirical data speak against its narrow view of human motivation within the corporate landscape.

39 Nelson,

1610, 1578–80. 1579. 41 Nelson, 1579–80. 42 Ibid. 40 Nelson,

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Consider Grisez’s concept of personal vocation, which serves as an alternative to Nelson’s understanding of identification. In Living a Christian Life, Grisez defines personal vocation as an individual’s unique share in the Church’s mission to live for, and build up, the kingdom of Christ.43 Concretely put, it is a major, even life-long, commitment to use one’s gifts and opportunities to bring about that kingdom.44 Importantly, the kingdom of Christ (we might add) is indeed the ideal state of integral human fulfillment.45 Thus, personal vocation is inextricable from the exercise of conscience: It describes the specific manner in which a unique individual identifies various forms of good and promotes them with a view towards integral human fulfilment.46 This may be achieved through any number of vocational choices, from accounting to pharmacy, from ministry to teaching. Personal vocation therefore provides a powerful insight as to why individuals closely identify with for-profit institutions: They see it as an opportunity to promote specific instantiations of human good. True, an investment banker may not say that she chose her career as a means to “promote the range of basic human goods.” But other responses reflect this motivation. For example, she could say, “I chose to become a banker to provide for my growing family,” or “I chose to become a banker to invest in projects of social good.” These answers tell of an implicit desire to promote various forms of human good and, at best, may be attributable to a desire to promote integral human fulfilment. Two further aspects of Grisez’s understanding of personal vocation are worth highlighting briefly. First, Grisez writes that the pursuit of one’s personal vocation should never focus upon difficulties met: We ought to be “concerned primarily with the work to be done and only secondarily with the difficulties and obstacles, such as deficiencies, the lack of

43 Germain Grisez, The Way of the Lord Jesus, vol. 2, Living a Christian Life (Quincy, IL: Franciscan Press, 1993), 113, chap. 2, q. E, para. 1 (henceforth this volume of Grisez’s work is cited with the abbreviated title LCL, chapter, question, and paragraph number: e.g., LCL, chap. 2, E-1). 44 CMP, chap. 23, C-11; and LCL, chap. 2, E-1. 45 CMP, chap. 7, F-1. See also Grisez, “Natural Law, God, Religion,” 22, 27. 46 LCL, chap. 2, E-2a.

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necessary means, and the effort required.”47 If we concede that strictly defined economic, legal, and social scripts do in fact provide obstacles to individuals, specifically deterring them from morally investing themselves within for-profit institutions, then Grisez’s point hints at the positive mindset or actions that individuals can adopt to actively counter difficulties met. Grisez also claims that the pursuit of one’s personal vocation does not preclude change and creativity. He explains: Wishing to give better service, the faithful person does not always follow standard practices, but innovates, while respecting the requirements of morality and the just law, as did the saints who founded new religious institutes to satisfy unmet needs. Then too, in carrying out responsibilities, it often is necessary to undertake projects directed toward certain definite goals; but because projects are only means to the goods to be served, they often can be modified or abandoned without unfaithfulness, if they fail to serve the purposes they were meant to serve or if the purposes can be better served in other ways.48

Grisez thus points to the human ability to react against the status quo. The need to innovate, modify, or even abandon constitutes what it means to live out one’s personal vocation in the world. Is this capacity somehow left at home when entering the office? As recent studies suggest, there are no strong reasons to think so. We turn then to empirical evidence that speaks against Nelson’s bleak portrayal of human motivation and that supports Grisez’s understanding of personal vocation. A couple rejoinders and summative points will here suffice. Against Nelson’s claim that employees are “heavily motivated” by financial reward,49 today’s research reveals a full range of non-financial incentives that motivate employees—from the desire for a higher purpose in their work50 to a feeling of profound connection with 47 LCL,

chap. 2, E-3d. chap. 2, E-5b. 49 Nelson, “Conscience, Incorporated,” 1602. 50 Ibid. 48 LCL,

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their company.51 These findings reflect the conscience-based motivations described by Grisez more than the financial gain and passivity described in Nelson’s social theory of conscience. Nelson also claims that corporate shareholders are passive52 and suggests that low retention rates of employees are inevitable.53 These phenomena, however, are being overcome significantly as more businesses adopt Employee Stock Ownership Plans (ESOPs)54 and other schemes that promote employee decision-making. As the business ethicist Steven F. Freeman writes: Employee ownership is … associated with considerably greater employment stability and, in firms that simultaneously increase worker participation in decision making, the result is increased job satisfaction, organizational commitment, identification, motivation, and workplace participation.55

If modern corporate life actively pushes against the human desire to identify with work, ESOPs undoubtedly go against the grain. Indeed, Grisez’s theory of personal vocation allows us to view them as genuine innovations, ones by which ordinary corporate obstacles are overcome to promote forms of human good. The above points only indicate some occasions of active engagement within for-profit contexts. Yet, were there any doubt, even these brief points demonstrate that individuals can and do closely identify with businesses, despite the structural challenges met. This is an important dimension of human behavior that Nelson’s theory regrettably omits.

51 Gallup,

State of the American Workplace: Employee Engagement Insights for U.S. Business Leaders, 2013, 21, https://www.gallup.com/file/services/176708/State%20of%20the%20American%20W orkplace%20Report%202013.pdf. 52 Nelson, “Conscience, Incorporated,” 1587–90. 53 Nelson, 1602 (referencing a 1997 study on employee motivation). 54 ESOPs are retirement plans for employees and qualified owners. See Steven F. Freeman, “Effects of ESOP Adoption and Employee Ownership: Thirty Years of Research and Experience” (working paper, University of Pennsylvania, 2007), 3, http://repository.upenn.edu/od_wor king_papers/2/. 55 Freeman, 1.

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3.2.3 The Formation of Corporate Conscience Finally, we turn to Nelson’s culminating normative framework, the “continuum of collectives,”56 which is meant to identify the types of collectives that are best able to claim rights of conscience. At its opposite ends, the continuum consists of two ideal types: “organizations,” which feature detachment among members, sit on its far right; and “constitutive communities,” collectives characterized by identification, sit on its far left. According to Nelson, it is the latter’s “shared interests in self-definition” that make constitutive communities “the most plausible” model for making sense of collective claims of conscience.57 In such collectives, individuals purposefully coordinate to author their identities; thus, following a predominant mode of identification, only these collectives are able to form corporate consciences, and only they should be subject to relevant free exercise protections. Two points can be quickly made against this normative framework. First, the continuum assumes that constitutive communities feature a predominant pattern of identification among members. But this pattern is not always present in collectives that are normally given free exercise rights. For example, with respect to teachings on contraception, one might be hard pressed to find a prevailing pattern of identification among Roman Catholics in the United States.58 Nevertheless, Nelson’s theory would classify the Catholic Church in America as a constitutive community. Second, the continuum also seems to assume that all members of a collective must be directly involved in the determination of its corporate conscience. However, this assumption does not pan out as Nelson

56 Nelson,

“Conscience, Incorporated,” 1582. 1581–3 (italics in original). 58 See Harris Interactive, New Harris Poll Finds Different Religious Groups Have Very Different Attitudes to Some Health Policies and Programs, October 2005, https://theharrispoll.com/wp-con tent/uploads/2017/12/Harris-Interactive-Poll-Research-New-Finds-Different-Religious-GroupsH-2005-10.pdf; and Guttmacher Institute, Countering Conventional Wisdom: New Evidence on Religion and Contraceptive Use, April 2011, http://www.guttmacher.org/pubs/Religion-and-Con traceptive-Use.pdf. 57 Nelson,

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expects. Neither hierarchical churches (like the Catholic Church59 ) nor many for-profit firms (including Hobby Lobby60 ) define, codify, and maintain their moral positions in a purely democratic fashion. Indeed, small and select groups of authority-wielding individuals often and directly account for the formation of corporate conscience. Nelson’s theory not only fails to see this, but it also fails to explain how the identification of non-authoritative members contributes to that process in actual fact. I offer an alternative—and more satisfactory—explanation of the formation of corporate conscience in Chapter 4 below.

3.2.4 Summary of Ginsburg and Nelson Thus far in our assessment of skeptical accounts of group agency, I have shown why Ginsburg’s elimination approach and Nelson’s reduction approach fail to convince. Ginsburg betrays an arbitrary use of corporate theory and an unfamiliarity with typical state corporation law. And Nelson’s criteria for assessing the existence of corporate conscience are either conceptually weak or empirically inaccurate. To their credit, however, we should note a certain methodological strength in Ginsburg’s and Nelson’s respective approaches: Generally speaking, each moves from the description of groups to the normative assignment of legal rights. This means of proceeding is endorsed by, and refined in, our proposed account of corporate religious liberty. So what causes their particular approaches to fail is attributable in part to their poor or incomplete group-descriptive theories: In the end, traditional theories of the corporation are insufficient for the moral work of legal rights ascription.61 And Nelson’s social theory of conscience, while laudable for its attention to

59 Catholic Church, Catechism of the Catholic Church (London: Geoffrey Chapman, 1994), para. 2032. 60 “Burwell v. Hobby Lobby,” Becket, accessed May 11, 2020, https://www.becketlaw.org/case/ burwell-v-hobby-lobby/. 61 Of course, the moral uses of (a separate and legal) corporate personality should not be overlooked. See discussion relating to property, land ownership, and limited liability in Alan Dignam and John Lowry, Company Law, 7th ed. (Oxford: Oxford University Press, 2012), 15–18.

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ethically salient relations within group-types, is unjustifiably reductive of conscience-based, or religiously motivated, group agency. As for their underlying motivations, it might be the case that Ginsburg’s and Nelson’s moral concerns do, in fact, hold weight. For example, the issue of third-party harms might be of tremendous consideration in a given dispute. But recognition of this fact does not justify poor descriptions of social and group realities. We therefore recognize the potential weight of their (implied) normative concerns, yet reject their approaches to the assignment of legal rights based upon their poor group-agency accounts—that is, their “self-‘validating’ fiction[s].”62 Given the descriptive weaknesses of the elimination and reduction accounts, it is unsurprising that Richard Schragger and Micah Schwartzman opt for a different approach. Writing after Nelson and Ginsburg, Schragger and Schwartzman articulate an approach to rights ascription that is agnostic towards the nature of group agency. Their agnosticism is ultimately based upon a conviction that any account of group agency—no matter how empirically accurate or theoretically compelling—is always indeterminate with respect to the ascription of rights to corporate religious liberty. For them, political morality is always prior and fundamental in relation to the description of groups or group agency. In the next section, I show why this agnostic intuition has some methodological merit for purposes of developing a Christian approach to corporate religious liberty. But I also show why it is descriptively inadequate and ethically shortsighted. In the final analysis, after pointing to an appropriate method of rights ascription attributable to them, I reject Schragger and Schwartzman’s attempt to eschew group ontology from corporate religious liberty theorization.

62 John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 28.

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Schragger, Schwartzman, and Group-Agency Agnosticism

In an anthology chapter, entitled “Some Realism About Corporate Rights,” legal scholars Richard Schragger and Micah Schwartzman argue against the use of group ontology in the assignment of legal rights. They write: The indeterminacy of group ontology means that even if we grant that groups are real entities—and, further, that they are moral agents—it does not follow that they have moral or legal rights. The strong version of this claim is that group agency is entirely irrelevant to the ascription of rights. Here we make a more limited argument, namely, that the moral implications of group agency, if indeed there are any, are overwhelmed by other moral considerations.63

Schragger and Schwartzman are careful to distinguish between strong and limited versions of their agnosticism towards group agency. But, since Schragger and Schwartzman never indicate circumstances in which the moral implications of group agency are not overwhelmed by “other moral considerations,” it is safe to assume that their strong and limited arguments reach the same practical conclusion—namely, “that the moral implications of group agency … are [entirely] overwhelmed by other moral considerations.”64 In this section, I critique Schragger and Schwartzman’s agnostic account of group agency, primarily in terms of its methodological corollary, an empirical method of corporate rights ascription. Following Schragger and Schwartzman’s group-agency agnosticism, this method of rights ascription holds that (i) accounts of group agency are always indeterminate with respect to legal conclusions and, more positively put, that (ii) legal conclusions and any relevant group descriptions are fundamentally shaped by politico-normative commitments. I argue that this

63 Schragger 64 Ibid.

and Schwartzman, “Some Realism,” 365–6.

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method improves upon an earlier version advanced by the twentiethcentury philosopher John Dewey. But, in the final analysis, I show that Schragger and Schwartzman’s improved version is descriptively inadequate and ethically insufficient, due in large part to a poor distinction between the subject-matters and methods of descriptive group ontology and moral theory. To make this case, I begin with an account of Dewey’s preferred method of corporate rights ascription. I then situate Schragger and Schwartzman’s version within this methodological heritage and assess their innovations.

3.3.1 Dewey’s Empirical Method of Rights Ascription The twentieth-century origins of the Schragger-Schwartzman method of rights ascription can be found in John Dewey’s 1926 article, “The Historic Background of Corporate Legal Personality.” There it is argued that the ascription of rights and duties to corporate persons should (i) operate independently of political, moral, and theological ideas about legal personality, since such “extraneous dogmas and ideas” can obstruct rules of law; and that such ascription should (ii) have recourse only to the social consequences that legal experts find corporate persons to have when granted or denied whichever rights and duties,65 since this is the only way that the concrete facts and relations necessary for the assignment of legal rights can be laid bare. Implied in this argument is an understanding of two opposing methods of rights ascription, what I refer to as the metaphysical and empirical methods. According to Dewey, the metaphysical method follows from an ancient Greek logic, which involves first understanding what a thing is and then determining which rights and duties that thing should enjoy based upon its inherent nature. Dewey sees evidence of this method in classical metaphysics (through its preoccupation with defining substances66 ), in the work of the German legal historian Otto von Gierke 65 John

Dewey, “The Historic Background of Corporate Legal Personality,” Yale Law Journal 35, no. 6 (1926): 657, 661. 66 Dewey, 660.

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(who argues that corporate bodies are living organisms and therefore deserve strong legal protections), and in the writings of von Gierke’s British counterpart, Frederic W. Maitland (who, according to Dewey, never quite understood the rights and duties of legal persons to be separate from, and unconditioned by, the perceived inherent properties of those persons67 ). Common to all these proponents is the view that the metaphysical method operates upon a “common sense” assumption that “whatever is a right-and-duty-bearing unit should have a character of its own in virtue of which it may possess rights … [and] obligations.”68 This inherent character must be something of practical moral importance; otherwise, “why are not molecules, or trees or tables just as fit candidates for legal attributes as singular men and corporate bodies?”69 While Dewey recognizes the moral import of assigning rights and duties to legal persons, he thinks that the basic intuition underlying the metaphysical method is misplaced: After all, judges and lawmakers issue holdings and pass legislation without reaching consensus on the metaphysical nature of juridical subjects. They need only rely upon the relevant effects of recognizing rights and duties, effects known empirically by those “competent in law.”70 Brute facts of actual legal consequences, therefore, weaken the currency of the metaphysical method and its basic assumption. Apart from the practical impotence of the metaphysical method, Dewey attributes a certain normative failure to it as well. By virtue of this method, “philosophy or what not extraneous dogmas and ideas” can obstruct rules of law. This implies that such theoretical notions about what is are obsolete or inaccurate and therefore are unsuitable for solving contemporary legal problems. Dewey writes, “We often go on discussing problems in terms of old ideas, when the solution of the problem depends upon getting rid of the old ideas, and putting in their

67 Dewey, 658. Also see Frederic W. Maitland, introduction to Political Theories of the Middle Ages, by Otto von Gierke, trans. Frederic W. Maitland (London: Cambridge University Press, 1938), i–lxxx. 68 Dewey, “Corporate Legal Personality,” 660 (italics mine). 69 Ibid. 70 Dewey, 660–1.

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places concepts more in accord with the present state of ideas and knowledge.”71 Thus, through its penchant for drawing legal conclusions from non-legal ideas, the metaphysical method—by Dewey’s lights—falls flat. By contrast, Dewey’s proposed empirical method proceeds in an almost opposite manner. Rights and duties do not follow from conclusions about an inherent essence. Instead, rights and duties are first given to a legal person and then the consequences that follow from this assignment are analyzed. This method (i) focuses upon what a thing does in light of the rights and duties it is given, (ii) remains agnostic with respect to the inherent nature of the thing in question,72 and (iii) presumably involves a normative assessment of the observed consequences, which culminates in an adjustment of laws and policies. On this third point, Dewey is regrettably ambiguous. Ambiguity concerning the empirical method’s normative or prescriptive function can be attributed in part to the method’s two sources of inspiration: C. S. Pierce’s pragmatist rule (which states that “our conception of … effects is the whole of our conception of the object”) and a scientific principle known as extensive abstraction (according to which “what really matters to science is not the inner nature of objects but their mutual relations”). Dewey claims that a method built upon these foundations is “logical” or mathematical.73 Yet somehow, on Dewey’s understanding, a mathematical method can recognize the normative importance of rights and duties, as if two plus two could result in a moral appraisal. To support this curious position, Dewey supplements his discussion of the empirical method with something of a normative theory, pointing specifically to the “social consequences” that rights ascription can affect. Dewey, however, offers no guidance on how to discriminate between morally good and bad consequences.74 It appears then that, despite his appeal to normative concerns, Dewey’s analysis of facts is more so an

71 Dewey,

657. 660. 73 Dewey, 661–3. 74 Dewey, 661. 72 Dewey,

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extension of a positive scientific principle than a procedure of normative legal theory.

3.3.2 Conflation of Science and Morality Its normative purpose notwithstanding, Dewey’s empirical method appears to be an impossibly amoral form of corporate rights ascription. The classical distinction between four sciences, or four fields of rational inquiry, helps illuminate this limitation. First proposed by Aristotle, adopted by Aquinas, and re-appropriated by John Finnis, the classical distinction holds that: [The] sciences {scientiae} are of four irreducibly distinct {diversae} kinds: (1) sciences of matters and relationships {ordo} unaffected by our thinking, i.e. of the “order of nature {rerum naturalium}” studied by the “natural philosophy” which includes “natural science” {[scientia] naturalis}, mathematics, and metaphysics; (2) the sciences of the order we can bring into our own thinking, i.e. logic in its widest sense; (3) the sciences of the order we can bring into our deliberating, choosing, and voluntary actions, i.e. the moral, economic, and political sciences compendiously called philosophia moralis; (4) the sciences of the multitude of practical arts, the technologies or techniques which, by bringing order into matter of any kind external to our thinking and willing, yield “things constituted by human reason.”75

According to Finnis, of the four orders, it is only the third that deals with self-determining, freely chosen conduct and therefore with morality itself.76 This distinctiveness concerns the interplay between moral responsibility (choosing one’s actions) and the self-constitutive nature of those freely chosen acts. Such actions are what Finnis calls “actio rather than factio”—that is, “doing (considered precisely as self-determining) rather than making (considered precisely as shaping

75 Finnis,

Aquinas, 21 (italics in original). 23, 62. See also John Finnis, Natural Law & Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 127, n. 1.

76 Finnis,

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something outside the acting person’s mind and will).”77 It is the subjectmatter of doing, which, in regards to the other sciences, makes the third order uniquely moral and thus irreducible to nature (1), logic (2), and technique (4). Legal rights ascription, it should be stressed, entails a normative procedure and hence involves, or has bearing upon, freely chosen actions.78 On this construction, lawyers and judges morally deliberate in their assignment of legal rights; and those subject to regulations deliberate over how to act within the legal space created and, at times, deliberate over how to change that space to align with moral requirements. Although concerned with the social technology known as law,79 and thus rightly part of the order of technique, legal rights ascription has roots deeply within the classical distinction’s third order, the order of moral philosophy.80 It therefore becomes apparent that Dewey’s empirical method downplays—to the point of obscurity—the reality of self-constitutive actions in the assignment of corporate and legal rights. Hence, on Dewey’s account, lawyers and judges do not morally deliberate over rights and duties; they instead “find” them through a scientific analysis of facts. Indeed, by Dewey’s lights, the legal expert is a scientist or technician, recording the various permutations of effects that follow from a string of legal experiments.81 Thus, what Dewey holds out to be a method of normative rights ascription is no such thing. Logically speaking, by collapsing the ought of freely chosen actions into the is of scientific study, the empirical method offers no moral reasons to follow its conclusions. Why permit consequence x to happen when thing y is affected by situation z ? On Dewey’s account, we will never know.82

77 Finnis,

Aquinas, 24 (italics mine). Finnis, “A Grand Tour of Legal Theory,” in Philosophy of Law: Collected Essays; Volume IV (Oxford: Oxford University Press, 2011), 109–11 (arguing that ethics extends to politics and that politics requires a theory of law). 79 For example, see Orts, Business Persons, 1 (defining law as a social technology). 80 See Finnis, “A Grand Tour of Legal Theory,” 111. 81 Dewey, “Corporate Legal Personality,” 656, 661. 82 At minimum, following Dewey, we will not have any good (or non-arbitrary) reasons for permitting or disallowing x. See related discussion on moral motivation in Sect. 3.2.1. 78 John

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3.3.3 Correcting Dewey Perhaps due to Dewey’s methodological weaknesses, Richard Schragger and Micah Schwartzman offer a version of the empirical method that does not collapse rights ascription into a scientific investigation. Their approach recognizes that a political morality (of whichever type) undergirds corporate rights ascription. Unquestionably, this is an improvement upon Dewey. Thus, in this section, I interpret Schragger and Schwartzman’s approach to rights ascription as found in their chapter, “Some Realism About Corporate Rights.” I show how their approach potentially follows the classical distinction and so offers an appropriate method of legal rights ascription. However, immediately afterward, I point to the limits of my interpretation. And, in the end, I argue against the adoption of Schragger and Schwartzman’s method—not as I interpret it, but as they actually propose it. We turn now to a possible interpretation of their approach. Following Dewey’s lead, Schragger and Schwartzman reject the position that metaphysical ideas about legal personality should determine the status of corporate persons as rights-holders. Among these ideas, Schragger and Schwartzman identify three main doctrines of personality: real entity theory, according to which corporate bodies have moral agency and thus ought to be protected by law; concession theory, which holds that corporations are creations of law and therefore cannot exist independently of law or hold grievances against it; and fiction theory, the view that corporate personality is a legal fiction designed to advance the interests of groups’ individual members, not corporate entities themselves.83 Like Dewey, Schragger and Schwartzman single out real entity theory as especially problematic, implying strongly that it is deliberately used to impose group interests upon vulnerable individuals. And with respect to all three doctrines, Schragger and Schwartzman find them to be a hindrance to rights ascription, insofar as they distract from social consequences and are indeterminate with respect to legal outcomes.84 83 Schragger

and Schwartzman, “Some Realism,” 347, 353–4; and Dewey, “Corporate Legal Personality,” 658, 665, n.1, 666. 84 Schragger and Schwartzman, “Some Realism,” 357, 360, 366 (italics mine).

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Their proposed solution is an empirical method that draws upon, and departs from, Dewey’s in important ways. Common to both is an emphasis upon what social effects might follow from the extension of rights and duties to corporate persons. In this way, Schragger and Schwartzman’s empirical method follows the facts-based approach of the legal realist movement, which Schragger and Schwartzman loosely associate with Dewey himself.85 However, unlike Dewey’s scientific and notably amoral approach, Schragger and Schwartzman’s method explicitly acknowledges the normative interpretation of social effects. Concluding a discussion on the moral indeterminacy of corporate theories, Schragger and Schwartzman write: Whether a group is a real entity, an aggregate of individuals, or a legal fiction tells us very little about the group, or about groups in general. We can know everything about a group’s metaphysics, and yet know almost nothing about its relationship to its own members and to the political society (or societies) in which it finds itself, or perhaps to which it belongs. But without information about those relationships, and without some conception of what makes rights valuable, it is impossible to draw any conclusions about whether it makes sense to recognize the moral and legal rights of groups.86

Being normatively inclusive, Schragger and Schwartzman’s empirical method is able (in theory) to offer moral reasons for its legal outcomes. It therefore overcomes not only the metaphysical method’s perceived indeterminacy with respect to legal conclusions, but also Dewey’s normative ambiguity. One way to appreciate the normative capacity of this reformulated method is to identify a proper relationship between corporate theory and moral philosophy. Schragger and Schwartzman’s evolving understanding of corporate theory in “Some Realism” is here useful. To begin their critique of the metaphysical method, Schragger and Schwartzman adopt what they think religious institutionalists (i.e., those who endorse

85 Schragger 86 Schragger

and Schwartzman, 346, 358. and Schwartzman, 367–8.

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strong jurisdictional or rights-based protections for religious organizations) seem to propose—namely, that corporate theory can explain the metaphysics of group personality, which ineluctably results in (procorporate) legal conclusions.87 On this understanding, corporate theory almost serves as a subset of moral philosophy, one that specifically pertains to the moral and legal rights of corporate persons. But later in “Some Realism,” Schragger and Schwartzman come to describe corporate theory as a positive science, as purely descriptive and distinct from moral philosophy. For example, towards the end of their chapter, they recognize that the moral attribution of corporate rights requires descriptions of groups and that corporate theories can provide these descriptions. Elsewhere, they acknowledge that descriptions about group agency have “normative implications.” Yet Schragger and Schwartzman do not go so far as to refer to corporate theory as a type or subset of political morality.88 These points suggest an understanding that corporate and moral theories operate upon separate methodological planes. This final understanding moves in the right direction, as seen against the classical distinction, concerning separate but related fields of rational inquiry. If corporate theories are understood to describe group agency, especially in terms of what agency arrangements organizational structures permit, then it is possible to categorize these theories within Aristotle’s and Aquinas’s descriptive fourth order, the science of “techniques which … yield ‘things constituted by human reason.’”89 Legal scholar Eric W. Orts does this much when he articulates a descriptive theory of corporations, which focuses upon the legal institutions that shape formally organized business firms.90 These include three institutions pertaining to corporate law (legal fiction, legal entity, and legal personality), as well as three institutions normally associated 87 Schragger

and Schwartzman, 348, n. 13 (identifying Víctor Muñiz-Fraticelli, Paul Horwitz, Patrick McKinley Brennan, Steven D. Smith, and Richard W. Garnett as religious institutionalists). 88 Schragger and Schwartzman, 366–9. 89 Finnis, Aquinas, 21. 90 Orts, Business Persons, 1. Orts focuses on business firms, but acknowledges that his theory has applications for other types of organizations.

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with other substantive legal fields but that have relevance for an understanding of the composition of corporate entities (agency, contracts, and property).91 Orts emphasizes that his legal, or institutional, theory is “minimalist with respect to substantive political content.”92 Thus, along Deweyean lines, an institutional corporate theory deliberately eschews the moral biases that have historically accrued to corporate theories when used in legal argumentation. As Orts puts it: “It makes better sense to decide specific policy questions with respect to the law applicable to business firms in particular contexts and situations rather than in general.”93 In other words, abstract theories of corporate personality, constituting a “general” approach, should not determine corporate-related policies. That said, Orts recognizes that an institutional corporate theory leaves open for moral deliberation issues surrounding government regulation and the rights of businesses and their owners. Business people and policy makers are assumed to hold practical moral positions that inform their legal conclusions94 ; thus, Orts’s institutional theory follows Schragger and Schwartzman in its normative inclusion. At the same time, and with reference to the classical distinction, an institutional corporate theory preserves the differences between a descriptive theory of corporations (which pertains to the factio of technique) and moral theory (the third order of rational inquiry, which, we should add, requires descriptive facts to arrive at concrete moral conclusions).95 With reference to the ascription of corporate rights, Fig. 3.1 visualizes this methodologically appropriate relationship. The schematic presented is divided into three levels. The first level indicates a moral theory that grounds the process of legal rights ascription. This level is concerned with moral theory, especially with the self-constitutive actions of individuals, executed on one’s own or in coordination with others. The exact moral theory used is variable and could be conceived in terms of an ad hoc collection of moral principles or a comprehensive moral doctrine, whether secular or religious in nature. The second level, descriptive 91 Orts,

chap. 1–2. 18. 93 Orts, 17–18, 19. 94 Orts, xxii. 95 See Finnis, Natural Law & Natural Rights, 18–19. 92 Orts,

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Level

Description

L1

Moral theory

Concerned with actio (self-constitutive actions), as well as moral principles or concepts, including social consequences

L2

Descriptive theory

Concerned with factio, e.g., the legal institutions that shape, or are shaped by, the (collective) self-constitutive actions of individuals

L3

Legal rights ascription

The legal conclusions (e.g., the legal rights and duties of corporate entities) that result from, or are subject to, moral evaluation

91

Fig. 3.1 An interpretation of Schragger and Schwartzman’s empirical method

theory, pertains to theories of group agency or, in the context of incorporated entities, specifically to corporate theory. This level is thereby concerned with factio, understood here as the legal institutions (e.g., legal fiction, entity, personality; agency, contracts, property) that shape, or are shaped by, the collective actions of individuals executed within or through formally organized groups. The third level, legal rights ascription, entails the legal conclusions that result from, or are subject to, moral evaluation. In the corporate religious liberty context, the third level pertains to the legal rights and duties that are associated with corporate entities. Although moral commitments inform one’s description of groups and then culminate in legal conclusions, the progression through levels is not unidirectional. Thus, the schematic supplements the expected downward arrows with an upward-facing set. The latter set indicates that a feedback mechanism exists between levels, meaning that conclusions from one (lower-positioned) level can be used by another (higher-positioned) level in such a way that the (higher) level modifies one or more of its own conclusions. For instance, a hypothetical law restricting religious exercise to not-for-profit organizations (Level 3) can influence how we

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describe groups and religious group agency (Level 2), which invites moral reflection upon whether the hypothetical law is normatively worthwhile (Level 1). Following this example, it may be the case that a given exercise of moral deliberation (i) takes for granted the high moral value of the hypothetical law, (ii) describes religious organizations as not-for-profit, and (iii) solidifies the moral assumption or argument that collective religious action should occur only within not-for-profit contexts. Further to this, it should be added that the feedback mechanism can occur between two neighboring levels, as when a group description (say, one involving the control and monetary privileges of property rights) informs reflection upon moral principles (in this case, a natural moral right to ownership). In light of the interaction between levels, it is important to stress that Levels 1 and 2 operate according to their own methodologies, given their distinct subject-matters. Moral theory’s emphasis upon self-constitutive acts cannot be reduced to a descriptive theory’s understanding of what is the case; and the reverse is true. At the same time, we must note that (i) a descriptive theory is never entirely uninformed by moral commitments. (Otherwise, what explains the moral choice behind a social-scientific emphasis upon whichever phenomenon? Why is this or that phenomenon even worth describing?) Likewise, we must note that (ii) moral theory can never culminate in concrete moral and legal conclusions without some awareness of what is—i.e., what is known through “the assistance of descriptive and analytical social science.”96 To reiterate, Fig. 3.1 outlines only an interpretation of Schragger and Schwartzman’s empirical method. It does not precisely describe it, since they neither have recourse to an institutional corporate theory nor explicitly claim that descriptions of groups should include accounts of institutions beyond legal personality. Nevertheless, the schematic’s three-tiered structure reflects a methodological soundness that could be attributed to their approach. Indeed, unlike Dewey’s method, which would confusedly attempt to legally prescribe without a conception of morality (Level 1), the empirical method outlined here maintains the distinction between the mutually supportive subject-matters and

96 Ibid.

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methodologies of moral theory and technique (Level 2). Accordingly, it is able to offer moral reasons for its assignment of legal rights (Level 3). Given its methodological strengths, I adopt the above method of legal rights ascription for our developmental work in Chapter 4. But, to round off our discussion, we must admit that my account of Schragger and Schwartzman’s method is not the only interpretation available; indeed, it may not be the most accurate. In the next section, I show how Schragger and Schwartzman depart from the methodological strengths addressed and thus further remove themselves from a Christian approach to corporate religious liberty.

3.3.4 A Political Liberal Approach The previous section portrayed Schragger and Schwartzman’s empirical method in the best possible light. I now provide an alternative interpretation, one that I consider to be more closely aligned with Schragger and Schwarzman’s wider scholarship. In the interpretation that follows, I conclude that Schragger and Schwartzman ultimately endorse a unidirectional understanding of legal rights ascription and, along the way, unjustifiably discredit Christian ethical thought from grounding that process. By highlighting this methodological mistake and ethical bias, I hope not only to show why we should reject their method of rights ascription, but also to provide a foil against which to better appreciate the strengths of the empirical method constructed above. The first point to address concerns the unidirectional nature of Schragger and Schwartzman’s empirical method. Recall that a multidirectional method of legal rights ascription admits the methodological independence of morality and descriptive theory; it also recognizes that both types of rational inquiry can and do inform each other at appropriate points. Schragger and Schwartzman’s method of rights ascription neither admits nor recognizes either. Indeed, it seems to operate in a unidirectional manner, such that moral theory “drives”—or entirely determines—a description of groups. Consider this extended passage:

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But the salience of particular group attributes will be driven by considerations well beyond the ontological nature of the organization. Whether the size of a given organization is salient, for example, may turn on the relative size of all organizations in society, whether the organization serves as a countervailing power, what the organization actually does, and whether that activity is itself worth doing. This will be the case with any given generalization. For example, whether the for-profit or nonprofit status of a given organization is relevant to the recognition of its rights will depend on some account of market relations in a democratic society. Descriptive generalizations about a category of organizations—churches, corporations, nonprofits—only become relevant to the assignment of rights and responsibilities when they are evaluated under some conception of political morality. Without specifying such a conception, it is pointless to go on about the nature of churches, corporations, and other groups. But we can, at least, address the objection raised earlier to the realist claim that we should replace the question, “What is a corporation?” with the question, “How does granting rights to a corporation affect our social relations?” To claim that we cannot know what the effects will be without an accurate description of the group, our response is that the kind of description needed is not an ontological one, but rather one driven by our moral concerns. If our purpose is to assign moral rights and responsibilities, then we need conceptual and empirical descriptions informed by that purpose.97

Schragger and Schwartzman here argue that theories of group ontology (which determine whether groups are, for example, real entities or mere aggregates) provide insufficient ethical information for the process of legal rights ascription. Other moral considerations, such as the normative purpose or value of various groups in society, are required. It is these considerations, driven by an underlying conception of political morality, that bring to light the descriptive attributes of groups that are ethically relevant for the assignment of corporate rights. In other words, by Schragger and Schwartzman’s understanding, it may be empirically true that a for-profit firm has owner-controllers who hold certain legal rights of ownership; but, if our conception of political morality eschews the importance of property rights (whether morally or positively construed), 97 Schragger

and Schwartzman, “Some Realism,” 368–9 (italics mine).

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then we can (i) choose to ignore the empirical fact concerning ownership from our group description and (ii) recognize or prescribe moral and legal rights that would disregard or overrule the relevant prerogatives of the owner-controllers. Several inferences can be drawn from Schragger and Schwartzman’s argument. To start, even though Schragger and Schwartzman evoke the ethical “salience” of group descriptions, which implies that descriptive theories do inform moral reasoning, it is still not clear that their implied method of rights ascription operates in a multidirectional manner. Insofar as “the kind of [group] description needed” is “driven by our moral concerns,”98 the interaction proposed between morality and descriptive theory runs in one direction: First, certain moral principles are chosen as most important. Then, group attributes deemed relevant to those principles are described. The problem with this methodological sequence can be construed in several ways: First, it risks overlooking ethical concerns made apparent through an attention towards organizational design, as in the example above regarding the property rights of owner-controllers. Second, it endorses a moral shortsightedness, in which the brute facts of social reality—including organizational design and (even) objective moral facts—are passed over in favor of a narrow set of normative concerns. And, third, it encourages a certain arbitrariness, whereby individuals are never quite sure whose conception of political morality will ultimately drive the description of groups and the related legal conclusions. An explicitly multidirectional method of rights ascription could avoid these faults by (i) taking into account the full range of group-descriptive attributes, (ii) adopting a non-reductive or pluralist moral theory,99 and (iii) providing more assurance—by virtue of (i) and (ii) considered together—that more or all group-descriptive attributes will have 98 Ibid. 99 Pluralist

theories come in many forms. I specifically have in mind Aquinas’s natural law theory, which references a range of human goods or requirements of practical reason and is tied to a rich theological anthropology, one that is not reducible to, say, voluntary consent alone. Finnis, Aquinas, 79–86. See also Kent Greenawalt’s discussion of the benefit of “multiple value theories” for the fair and practical adjudication of religious liberty disputes. Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 5–9.

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the opportunity to be ethically relevant. These correctives do not guarantee that a given ethical concern, tied to particular group-descriptive attributes, will “outweigh” all other interests. But they do put more empirical and normative considerations on the table than Schragger and Schwartzman’s method seems to allow. I turn now to a second and related interpretive point—namely, the type of political morality that implicitly drives Schragger and Schwartzman’s empirical method. Schragger and Schwartzman are seemingly ambivalent on this front. They pepper their chapter, “Some Realism,” with phrases that refrain from adopting a particular political morality. Their only goal, it seems, is to draw attention to the importance of a conception of political morality—and no one conception in particular—for the assignment of legal rights.100 However, this is not their aim. Despite the lawyerly objectivity projected, Schragger and Schwartzman tacitly endorse a form of political liberalism and reconstruct Dewey’s empirical method within this individualist framework. Such endorsement is evident in their critique of the “standard argument” (which uses the idea of corporate moral personality to defend corporate rights), in their favorable treatment of Christian List and Philip Pettit’s “normative individualism” (which provides a normative check against the domination of real group entities), and in their eschewal of group metaphysics or metaphysics in general (which, by political liberal standards, are too controversial for developing a public or political morality).101 In addition, Schragger and Schwartzman’s political liberal commitments can be seen in an earlier article, “Against Religious Institutionalism,” where it is argued that the legal doctrine of church autonomy should be understood in terms of a Lockean voluntarism. According to the “voluntarist principle,” churches enjoy legal protections not because they promote a unique moral good (i.e., religion), but because they advance individual consent through voluntary association. Moreover, “Against Religious Institutionalism” does not restrict Schragger and Schwartzman’s individualist commitments to religious organizations alone. The “general account of conscientious objection” advanced therein 100 Schragger 101 Schragger

and Schwartzman, “Some Realism,” 348, 360–8. and Schwartzman, 348–53, 366–7, 370–1.

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applies to all group-types, from “an ideologically committed business that hires hundreds of employees, to a religious hospital, or to a non-religious non-profit.”102 Why does this political liberalism matter? One area upon which it has direct bearing is the methodological relationship between morality and group description. For Schragger and Schwartzman, the formal relationship here entails political morality “driving” group description. In light of their expressed moral commitments, we now see that their understanding of rights ascription entails a form of political liberalism that takes the group-descriptive wheel. The result is a description of groups as voluntary associations and a legal conclusion, or regime, according to which voluntary associations alone are deserving of corporate religious liberties. Precluded from their conception of political liberalism is the idea that corporate entities have sui generis moral rights, which follow from any group ontology, but especially from a robust form of real entity theory. Allowing this idea to have practical effect (it is argued) would most likely result in the violation of individual rights and the undermining of societal well-being.103 All things considered, it should now be apparent that Schragger and Schwartzman’s empirical method, which holds itself out as (i) agnostic towards group ontology and as (ii) offering a methodologically sound approach to rights ascription, fails on both counts. In reality, the proposed method is dismissive of certain group ontologies, due to its political liberal and individualist commitments. And while it may not explicitly conflate the proper subject-matters and methodologies of morality and descriptive theory, its zealous emphasis upon a political morality (here, a form of political liberalism) obscures the methodologically appropriate relationship between both fields of inquiry. Indeed, through normative implication, group descriptions can bring vital ethical intelligence to moral reasoning. This should not be overlooked by a brash application of political liberalism.

102 Schragger 103 Schragger

and Schwartzman, “Against Religious Institutionalism,” 957–62, 969, 981. and Schwartzman, “Some Realism,” 366.

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3.3.5 A Christian and Group-Ontological Contention To close the present discussion, I raise a third and final interpretive point: It should be noted that Schragger and Schwartzman offer their method of rights ascription while mischaracterizing (albeit briefly) medieval Christian theology, describing it as exclusively beholden to a form of strong group realism. I suspect that this mischaracterization does nothing to dispel the idea that medieval theology and law are crudely corporatist, a position that seems to be held by prominent figures in the corporate religious liberty debate.104 Allow me to elaborate upon this suspicion. Beginning their critique of the standard argument, Schragger and Schwartzman describe medieval group ontology as follows: In earlier accounts of group ontology, groups were described in organic terms and by analogy to living creatures, which grow and develop and have lives of their own. The claim that associations are pre-legal, natural features of the social landscape is indebted to medieval theological concepts, especially the unified personality of the Church.105

To be fair, the above excerpt is not entirely a mischaracterization. It puts forward a summary of medieval thought that is somewhat supported in the primary and secondary literature. For example, Aquinas held that groups can be understood to have their own agency,106 a position which affirms that groups can exist prior to the recognition of laws.107 And, according to the historian Janet Coleman, medieval associations like churches were indeed treated as having unified wills and intentions of their own.108 104 In

addition to Schragger and Schwartzman, see Laborde, Liberalism’s Religion, 164–5 (arguing against the theocratic rule of the church, in favor of the political state’s ultimate authority to define jurisdictions). 105 Schragger and Schwartzman, “Some Realism,” 349. 106Thomas Aquinas, Summa theologiae I-II q. 23, aa. 3–4. Henceforth, I reference the English Dominicans’ translation, using book, question, and article enumeration. See Summa theologiae, ed. Fathers of the English Dominican Province, 61 vols. (London: Blackfriars, 1964–1980). 107 See Janet Coleman, A History of Political Thought: From the Middle Ages to the Renaissance (Oxford: Blackwell, 2000), 41. 108 Coleman, 43.

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However, upon closer look of the historical sources, one sees that Schragger and Schwartzman’s summary is impressionistic. While Aquinas did think that groups could have intentions that (in some way) were separate and distinct from those of their members, he nevertheless did not hold that groups in general had lives of their own, as if possessing separate minds, wills, or souls.109 Moreover, Coleman stresses that corporate wills and intentions were merely legal fictions endorsed by church canonists, not concepts proposed within the ethical personalism of twelfth-century theology. According to the latter, individuals were thought to have natural, God-given capacities that enabled them to make claims to certain natural rights. In turn, corporate bodies were understood to enjoy rights and duties by extension—that is, through derivation from the rights and duties enjoyed by groups’ individual members.110 Schragger and Schwartzman therefore mischaracterize medieval group ontology itself (vis-à-vis Aquinas) and fail to appreciate that conclusions about medieval group ontology are separate and distinct from accounts of how medieval societies determined the legal rights and duties of corporate bodies (vis-à-vis canon law and ethical personalism). Thus we can acknowledge a medieval group realism, especially Aquinas’s modest version, without considering it to be the default normative ground of a medieval approach to corporate rights. If what historians like Coleman say is true, then that ethical foundation is primarily individualist,111 not strongly group-realist (see Chapter 4; though, cf. Chapter 6 below). Of course, we must acknowledge disagreement over medieval justifications of corporate rights. Legal scholar Patrick Brennan, for example, has recently argued that any contemporary idea of the freedom of the church must account for the (Catholic) Church’s medieval selfunderstanding as founded by Christ, not by individual members, and

109 For

example, see ST I-II q. 23, aa. 3–4. From the Middle Ages to the Renaissance, 43, 46–9 (discussing Cicero, Gratian, Abelard, and Aquinas’s contributions to natural law and to the derivation of corporate rights from individuals). 111 See treatment of individualism within a Christian ethical context in Sect. 2.2.3. 110 Coleman,

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thereby deserving of institutional autonomies.112 Coleman also points to thirteenth-century sources that view the Church as the corpus mysticum republicae, and understands these as evidence of the Church’s special privileges, authority, and responsibilities.113 But even these points do not contradict the claim that medieval theological concepts are primarily ethically individualist. Note the standard argument’s logic, which moves from a strong form of group agency to a conclusion about legal rights. Seen schematically, and as put by Schragger and Schwartzman, it holds: (1) (2) (3) (4) (5) (6) (7) (8)

Some groups are agents. Some group agents are rational. Rational agents are moral persons. Moral persons have moral rights. Legal rights protect moral rights. Therefore, some groups are moral persons (by 2 and 3). Therefore, some groups have moral rights (by 4 and 6). Therefore, legal rights protect some groups’ moral rights (5 and 7).114

Neither Brennan’s nor Coleman’s historical points follow this logic. Even if the medieval Church views itself as founded by Christ or as responsible for the salvation of the Christian body public, these perspectives need not translate into the standard argument that the Church is a rational person (2), has moral rights (7), and therefore has or should have legal rights (8). Brennan’s point can be seen to simply move the final justification of corporate rights from individual consent to an unspecified claim about Christ’s pre-eminence. And while Coleman’s point suggests a strongly group-realist justification, she herself attributes the observed group-agential language to a medieval penchant for metaphors; these served to “fill in the details” of what groups’ officials were responsible for, given the natural purposes of their respective collective entities.115 At 112 Patrick

McKinley Brennan, “The Liberty of the Church: Source, Scope and Scandal,” Journal of Contemporary Legal Issues 21 (2013): 169. 113 Coleman, From the Middle Ages to the Renaissance, 42. 114 Schragger and Schwartzman, “Some Realism,” 352, n. 32. 115 Coleman, From the Middle Ages to the Renaissance, 42.

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bottom, then, her references to the corpus mysticum republicae note an idiosyncratic use of language, and do not necessarily displace the ethically individualist character of a medieval approach to corporate rights and duties.116 More will be said on the topic of medieval group ontology in Chapters 4 through 6 below. For now, we can say that a crude form of corporatism does not ground (medieval) Christian reflection on corporate rights. Given this fact, perhaps Schragger and Schwartzman would consider incorporating Christian ethical insights, especially those that emphasize individual dignity and rights, into their (metaphysically bereft) form of political liberalism. Perhaps too they might consider the methodological points raised within this section to become more attuned to the diverse normative implications that descriptive theories have for the extension of legal rights. Were Schragger and Schwartzman to do so, their group-agency agnosticism would lose relevance and a method of rights ascription that is useful for Christian ethical development could follow.

3.4

Conclusion

This chapter criticized three skeptical accounts of group agency. To best appreciate its most salient conclusions, and so as to avoid a situation in which we cannot see the wood for the trees, allow me to provide a general review of our entire discussion thus far. Recall that the overarching aim of this book is to develop a Christian ethical and group-ontological account of corporate religious liberty, responding to the question: To whom or to what does corporate religious liberty apply? Development began in Chapter 2 with an interpretation of the churches’ understanding of religious liberty in general and of two forms of corporate religious liberty in particular—the freedom of the church and organizational exemptions. By the chapter’s end, I determined that the churches’ understanding could benefit from a more

116 Coleman,

43–5 (discussing consent, sovereignty, and natural rights in medieval thought).

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accurate description, or identification, of the legal and moral subjects involved. To make progress in this area, I claimed that Aquinas’s group ontology could assist with the development of a description-led approach. However, noting that the descriptive-to-prescriptive approach is unpopular with certain political liberals, I decided to address a family of related contentions head-on. Therefore, in the present chapter, I engaged with those skeptical of extending rights to for-profit entities due in part to inadequate group-ontological accounts (Ginsburg and Nelson). I also engaged with those who are altogether skeptical of group ontology’s use in the assignment of corporate rights (Schragger and Schwartzman). In the end, I determined that their various forms of skepticism are unconvincing: Ginsburg and Nelson utilize poor group descriptions in order to make a moral case against for-profit exemptions; and Schragger and Schwartzman seem to make the opposite error, overriding group descriptions through an over-emphasis upon moral theory. In light of the descriptive and normative weaknesses of the accounts explored, I concluded that a method of rights ascription that takes seriously group-ontological descriptions and Christian normative commitments is required. As I discuss in the next chapter, this method will follow the idealized interpretation of Schragger and Schwartzman’s empirical method (see Fig. 3.1); and, of equal importance, it will embrace Aquinas’s account of group ontology while building upon the churches’ teachings on religious freedom. With these various components assembled, a distinctly Christian and group-ontological account of corporate religious liberty will emerge.

4 A Modest Account of Corporate Religious Liberty

In this chapter, I construct an account of corporate religious liberty that identifies the moral and legal subjects at stake and that addresses the practical limits of the freedoms prescribed. Drawing upon the group ontology of Saint Thomas Aquinas, the theory offered considers group agents—understood primarily as the coordinated and social actions of individuals—to be the most appropriate subject of corporate religious liberty analysis. And through use of Thomist, Augustinian, and NeoCalvinist traditions (that is, moral reflections drawn from, or that inform, the churches’ teachings on religious freedom: see Chapter 2), the proposed theory demarcates just limits between religious coordination and governmental activity. Before detailing the structure of this chapter’s developmental work, allow me to provide a concise (though technical) overview of my theory and to comment on some of its distinctive aspects. Summarily put, my account of corporate religious liberty identifies (i) the legal conditions that a civil government should provide in order to (ii) permit or restrict an occurrence of corporate religious exercise or religious motivated yet secular exercise, on condition of (iii) the moral quality of the social action © The Author(s) 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3_4

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in question. Assuming that corporate religious exercise is executed in religiously homogeneous associations and thereby causes little to no direct third-party burdens upon members, the moral quality of this type of group-agential act does not generally invite heavy government interference. This set of assumptions and the appropriate governmental response entail (iv)(a) a theory of the freedom of the church. By contrast, assuming that corporate religiously motivated yet secular action is executed in religiously heterogeneous associations and thereby could cause significant third-party burdens, the moral quality of this type of group-agential act generally invites heavy government interference. This set of assumptions and the appropriate governmental response entail (iv)(b) a theory of organizational exemptions. There are three ways in which my theory of corporate religious liberty is different from prominent accounts. Firstly, insofar as my theory distinguishes religious activities from religiously motivated yet secular activities, and insofar as it permits the engagement of both in diverse organizational settings, it is immediately different from political liberal accounts (like Cécile Laborde’s or Schragger and Schwartzman’s) that ultimately reduce religion to voluntary consent and consequently restrict corporate religious liberty to voluntary associations alone. Secondly, insofar as my theory recognizes the responsibility of the state to adopt a substantive moral vision and to involve itself in the regulation of corporate religious (or religiously motivated) activity, it is distinguished from contemporary religious institutionalisms that seem to erect an impenetrable wall around ecclesial or religious activities. Finally, given its particular group-ontological core, my theory prescribes general legal conditions in direct response to the internal factors of a group that help make group agency possible in the first place. This action focus has at least two practical benefits: First, it recognizes the anatomy of group agency in general. This allows us to note group agency’s ubiquity and, in turn, helps my theory to avoid the restriction of (religious) group agency to a narrow set of group-types, as Ginsburg’s and Nelson’s theories unreasonably do. Second, as its name suggests, an action focus takes human actions be its primary subject. This allows my theory to describe the corporate or individual actions involved and,

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inasmuch as they are freely chosen and self-constituting, to morally evaluate them. This second capacity is necessary for the determination of just limits in protecting or restricting corporate activities by law. And the first capacity is fundamental if we are to recognize the existence of corporate religious activity in organizational contexts beyond voluntary association; this capacity thus acknowledges a basic condition for the viability—indeed, the intelligibility—of corporate claims to religious exemptions. I elaborate upon these points of differentiation in the present chapter and in chapters that follow. But with them stated upfront, we see that the normative significance of my proposed theory comes into bold relief. Summarily put: If we are to protect individuals in their corporate religious activities, then we must acknowledge and morally evaluate such exercise in all of its group contexts. Now to the task at hand. This chapter develops a theory of corporate religious liberty in three sections. The first two sections offer the Thomistic account of group agency on which my theory descriptively depends: Sect. 4.1 provides historical and philosophical context, and Sect. 4.2 gives a concise exposition of Aquinas’s group ontology. The final section, Sect. 4.3, offers the substantive core of this chapter, outlining how Christian ethical reflection might bear upon the anatomy of a group to suggest a theory of corporate religious liberty.

4.1

Aquinas’s Modest Group Realism

A methodologically sound approach to corporate religious liberty operates in conversation with normative bases and group-ontological descriptions (see Fig. 3.1). In this section, I take it for granted that Aquinas’s group ontology portrays social reality as best as possible.1 And by placing it at the center of our preferred method of legal rights ascription, I show, first, that Aquinas’s group ontology is indeed of the social-action type

1 At

minimum, I think that Aquinas’s group ontology outperforms those critiqued in Chapter 3 above.

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described above and, second, that Aquinas’s group agent has an anatomy that is particularly useful for moral analysis.

4.1.1 Group Realism and the Christian Tradition To begin our discussion of Aquinas’s group ontology, I propose using the alternative nomenclature of group realism. This not only relieves us of the cumbersome length of terms like “social-action group-ontological thought,” but it also emphasizes the point that groups (on Aquinas’s account) have a sui generis reality. Recognizing that Aquinas himself never explicitly described his social thought in terms of group realism (or in terms of group ontology, for that matter), we can usefully apply the nomenclature to him as a means of engaging with the contemporary study of social ontology and considering the extent to which the Christian tradition itself adopts forms of group realism. Let us begin with the contemporary study of groups. A foundational question in the philosophy of social ontology concerns the nature of group agency. The question is this: How does a group act? Put differently: What distinguishes group action from the actions of a group’s members? Put differently still: Is a group agent an ontologically distinct being or a mere aggregation of individual inputs? Contemporary philosophers who respond to these and related questions include John Searle, Margaret Gilbert, Michael Bratman, Christian List, and Philip Pettit.2 Historical figures include political philosophers Thomas Hobbes and John Locke, as well as sociologist Max Weber and economist Kenneth Arrow.3 As

2 John

Searle, The Construction of Social Reality (London: Penguin Books, 1995); Searle, Making the Social World: The Structure of Human Civilization (Oxford: Oxford University Press, 2010); Margaret Gilbert, On Social Facts (Princeton: Princeton University Press, 1989); Gilbert, Joint Commitment: How We Make the Social World (Oxford: Oxford University Press, 2014); Michael E. Bratman, Shared Agency: A Planning Theory of Acting Together (Oxford: Oxford University Press, 2014); and Christian List and Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (Oxford: Oxford University Press, 2011). 3Thomas Hobbes, Leviathan, ed. Ian Shapiro (London: Yale University Press, 2010); John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960); Max Weber, Edward Shils, and Henry Finch, The Methodology of the Social Sciences (New York: Free Press, 1949); Kenneth J. Arrow, Social Choice and Individual Values, 3rd ed. (London: Yale University Press, 2012).

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expected, their answers are varied and often incompatible. Nevertheless, we can identify two general approaches to group agency within the field. First, there is an approach known as elimination theory, which holds that group-agency talk is always reducible to, or described by, individualagency talk4 ; in other words, elimination theory maintains that speaking about a group agent is a shorthand way to speak of individual agents. It is important to note that elimination theory does not necessarily deny the existence of social groups or their normative importance for human beings. Indeed, it need not adopt a position, whether as a premise or conclusion, that a group (such as the political state) is an illusion or that its legal recognition as a “person” is normatively mistaken. It also need not adopt the anti-Aristotelian positions that individuals are asocial by nature or that individuals look after their own self-interests first before those of others.5 Its central claim is more modest: When we speak of group agents, we really speak about the individual agents involved. The second approach to group agency is group realism, which holds that group-agency talk is not always and entirely reducible to, or described by, individual-agency talk.6 Within group realism there are what I consider to be two broad variations: modest group realism and strong group realism. Beginning with the second, strong group realism holds that group agents are beings with minds and intentions that are substantially (if not completely) divorced from the minds and intentions of the group’s individual members.7 This position is strongly metaphysical, proposing that groups are ontologically independent of their members; thus, it is often met with astonishment and disbelief. The U.S.

4 List

and Pettit, Group Agency, 3–6; and Bratman, Shared Agency, 4. Schragger and Micah Schwartzman, “Against Religious Institutionalism,” Virginia Law Review 99, no. 5 (September 2013): 957 (constructing a theory of church autonomy that recognizes the moral importance of associational life for individuals); and Seumas Miller, The Moral Foundations of Social Institutions: A Philosophical Study (Cambridge: Cambridge University Press, 2010), 18–22 (defending a conception of “relational individualism”). 6 List and Pettit, Group Agency, 10. 7 List and Pettit, 9; and James D. Nelson, “Conscience, Incorporated,” Michigan State Law Review 2013, no. 5 (2013): 1571–2. 5 Richard

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Supreme Court has wrestled with this form of realism when confronting lawsuits brought on behalf of corporate persons.8 By contrast, modest group realism does not purport the existence of beings with independent and metaphysically substantiated minds. Instead, it holds that group agents have a certain agency proper to themselves, one that results from the complex coordination of individual group members.9 Hence, when we say that the army surrounds the enemy, the group agent (the army) engages in an action (surrounding the enemy) that no individual member herself could be said to do. This is a basic example of modest group realism.10 These preliminary definitions of group realism are given within an entirely philosophical paradigm. But the question remains: Does the Christian tradition offer a distinct, theological perspective? Yes and no. With regard to strong group realism, the Christian tradition evinces a nuanced understanding. By my reading, it holds that strong group agents are not metaphysically ubiquitous—that is, not emerging whenever individuals choose to coordinate, and not existing for any secular purpose. Instead, strong group agency pertains to the Church alone, she being animated directly by God (via Christ or the Holy Spirit) and able to exist apart from any earthly members (see Chapter 6). Again, this is a type of strong group agency that applies to an extremely narrow set of group-types—i.e., the Church alone. As for modest group realism, the Christian tradition does not offer an account that is substantially different from the philosophical. The tradition has adopted modest group realism from Aristotle; and natural lawyers, from Aquinas to Finnis, have added their own contributions, especially within the fields of legal and political theory (see Sect. 4.2). Even contemporary social ontologists, including Christian List and Philip Pettit, confidently associate their modest group realism with medieval (Christian) jurists, if not to Aquinas himself.11 8 For

example, see Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819); and Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). 9 For varieties of modest group realism, see List and Pettit, Group Agency, 10, 32; and John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 26. 10 Finnis, 24–5. 11 List and Pettit, Group Agency, 10–11.

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4.1.2 Modest Group Agency in the Summa Theologiae Turning now to Aquinas’s modest group realism, let us begin by leaving aside the impression that medieval jurisprudence and theology are crudely corporatist.12 This impression is simply not true. It is a wellestablished position that Aquinas understood group agency in terms of coordination (that is, the ordering of individuals’ actions around shared purposes) and not in terms of organic substantial wholes. Aquinas’s vision of group agency, which I categorize as a form of modest group realism, is worth presenting in full. But, first, it will be useful to demonstrate (i) why we cannot easily attribute strong group realism or elimination theory to Aquinas and (ii) how Aquinas’s group-agential thought fits within his historical milieu. We can achieve both aims by analyzing Question 21, Articles 3 and 4 of the Prima secundae, while keeping an eye towards relevant historical contexts. The reason for focusing upon these articles in particular will become clear below. The third article of Question 21 answers whether a human act is wellor ill-deserving due to its moral quality. For our purposes, Aquinas’s specific answer to this question is not so important. (Indeed, perhaps unsurprisingly, he does consider the moral goodness or badness of an act to elicit praise or blame.) Instead, the group-agential language within his answer draws our attention. Let us consider the article’s responsio in full: We speak of merit and demerit in relation to the requital which is rendered according to justice to a person by reason of his having done something for another’s benefit or hurt. Consider how each person living in a community is in a way a part or member of the whole group. The helping or harming of anybody in the community therefore extends to the whole; it is like hurting a hand and consequently hurting a man. Now when you act for the good or bad of another individual person merit or demerit comes into the case on

12 Richard Schragger and Micah Schwartzman, “Some Realism about Corporate Rights,” in The Rise of Corporate Religious Liberty, ed. Micah Schwartzman, Chad Flanders, and Zöe Robinson (Oxford: Oxford University Press, 2016), 349.

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two counts. First, a return is owing from the individual person [a singulari persona] who has been helped or harmed. Second, from the whole community [a toto collegio]. So that when somebody’s deed is directly ordered to the benefit or otherwise of the entire community, then requital is due to him from that in the first place [primo quidem et principaliter a toto collegio], and then afterwards from all its members [secundario vero ab omnibus collegii partibus]. Even when what he does is for his own good or evil, he still deserves requital, since his deeds involve the common interest in so far as he is part of the community [pars collegii]—although if you consider the individual in isolation no return of justice is due for what he does to himself, except perhaps by a figure of speech, as when we talk of a man being fair to himself. So then a good or bad act clearly carries the quality of being praiseworthy or blameworthy according as it lies within the will’s responsibility; of right or wrong according to its direction to our end; and of deserving reward or punishment according to the recompense of justice due from one to another.13

In this excerpt, Aquinas mentions three distinct types of agents: the individual person affected (a singulari persona), the whole community (a toto collegio), and all the members of the community (ab omnibus collegii partibus). If there is any wonder whether the community in this passage is a strong group agent, Aquinas’s three-part distinction among agent-types—especially his emphasis upon all the members or parts of the community—strongly precludes that possibility. Indeed, when first addressing the return owed by the whole community, Aquinas immediately frames this return in terms of the action owed by all its parts (see the second and third paragraphs of the excerpt above). And, to further diminish the possibility of strong group agency, Aquinas precedes that discussion with a simile: “The helping or harming of anybody in the community therefore extends to the whole; it is like hurting a hand

13Thomas

Aquinas, Summa theologiae I-II q. 21, a. 3, resp. Henceforth, I reference the English Dominicans’ translation, using book, question, and article enumeration. See Summa theologiae, ed. Fathers of the English Dominican Province, 61 vols. (London: Blackfriars, 1964–1980).

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and consequently hurting a man.”14 That Aquinas eschews strong group realism—in this passage, at the very least—is seen clearly in the text. But why this eschewal? What motivates Aquinas’s rejection (whether intentional or not) of a strong group-realist position? One reason pertains to the placement of Question 21, Article 3 in the Summa theologiae. It and the article that immediately follows are situated at the end of a section often referred to as the Treatise of Human Acts (ST I-II qq. 6–21). This treatise details the metaphysical structure of human action, emphasizing the interaction between reason and will. The treatise also covers the general nature of these faculties and invites consideration of the subject(s) in which these faculties subsist. Do they subsist in a group agent, for example? If so, does this justify analysis of organicist group acts in addition to individual human ones? In the Treatise of Human Acts, Aquinas never entertains these ideas; he simply does not have to. In the Prima pars, Aquinas already eliminates a related metaphysical prospect—namely, the Averroist notion that one intellectual soul can be shared among all members of the human species. Aquinas thinks that this is an impossibility: “We are left with the fact that it is absolutely impossible and incongruous to posit one single power of understanding among all men.”15 Plainly, empirical observation itself discredits the Averroist idea, which could be used to construct (out of many individuals) a strong group agent having a single intellectual soul, with a single set of reason and will. More importantly, though, the normative idea of moral responsibility resting in the human agent his or herself undercuts the possibility of strong group realism. Aquinas’s moral vision and his corresponding metaphysics of human action simply disallow it. Another reason Aquinas rejects strong group realism could be tied to the law and politics of his historical milieu. The thirteenth century witnessed a gradual shift in political power from localized feudal lordships to national monarchies and city-republics. It therefore might be tempting to assume that the predominant politico-legal paradigm of this era entailed recognition of strong group rights for the emerging states and 14 Ibid. 15 ST

(italics mine). I q. 76, a. 2.

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centralized powers. But centralization did not create antagonistic moral and legal agents out of groups. Legal rights pertained still to individuals, as well as to their diverse communities and associations. Historian Janet Coleman notes: Rules about group responsibilities … did not consist in newly representing groups or corporations as legal persons so much as turning already known and exercised moral norms into legal rules. In an overwhelming number of cases the law followed practice. The strong assumption of the medieval community meant that it was taken for granted that everyone had a right to associate with fellows provided that the actions of their association were lawful and did not exceed the customary restriction on their freedom of action as individuals with whatever status they had.16

Thus, unlike lawyers in nineteenth-century Germany, thirteenthcentury jurists and theologians did not generally fear whether their associational life was illegitimate in the eyes of a public authority. That “law followed practice” meant their associations were protected legally through a regime of individual rights, one thoroughly pre-modern and cognizant of an individual’s natural and theologically grounded freedoms. Indeed, that legal rights could adhere to a group (agent), entirely apart from individuals, was not an intelligible proposition for those in Aquinas’s day. It did not follow practice.17 It seems then that strong group realism is an improbable position to attribute to Aquinas. But our discussion thus far has neither firmly established modest group realism in, nor dismissed elimination theory from, Aquinas’s thought. To reach more solid ground, let us turn back to the third article of Question 21 in the Prima secundae. We recall that Aquinas deploys metaphoric language in his discussion of retribution and the moral quality of acts. He writes: “The helping or harming of anybody in the community therefore extends to the whole; it 16 Janet

Coleman, A History of Political Thought: From the Middle Ages to the Renaissance (Oxford: Blackwell Publishers, 2000), 41 (italics in original). 17 Coleman, 46. Frederic Maitland also notes that both the medieval universitas and the societas were viewed as “moral persons,” but only as a legal, labor-saving device. See Frederic W. Maitland, introduction to Political Theories of the Middle Ages, by Otto von Gierke (London: Cambridge University Press, 1938), xxiv–xxv.

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is like hurting a hand and consequently hurting a man.”18 Given the fact that Aquinas’s simile precedes the three-fold distinction between agenttypes observed in Article 3, it is highly probable that Aquinas treats “the whole community” (a toto collegio) metaphorically and therefore recognizes only two distinct agent-types: the individual person affected (a singulari persona) and all the members of the community (ab omnibus collegii partibus). Historical research seems to support this eliminationist interpretation. “From the twelfth century on,” writes Coleman, “discussions of the natural shape of society frequently used natural, organic metaphors.”19 Perhaps, then, Aquinas endorsed neither form of group realism and instead viewed the world through a type of elimination theory. Although a tempting position, there are strong reasons to dismiss an eliminationist interpretation of Aquinas. To start, let us consider the weakness of elimination theory itself and the appeal of a plausible group realism. As discussed above (see Sect. 4.1.1), elimination theory cannot fully explain why group agents are able to do things that no individual member can do on his or her own. An eliminationist position, for example, would claim that an army’s act of surrounding the enemy is entirely reducible to the actions and, by extension, the intentions of individual soldiers. But this conclusion does not account for a variety of nuanced situations in which group agency is not a mere aggregation of individual acts and aims. These situations could include (i) when a group’s individuals or subordinate group-units act, but do not intend the same end; (ii) when they intend the same end, but do not act; or (iii) when they act towards different ends, despite the group itself ultimately attaining its originally proposed end. Detailed explanation of any of these situations is not required at this point. But already we intuit that a metaphorical gloss over group agency in complex situations is insufficiently explanatory of the nature of group agency. We require a more sophisticated account—one that allows us to attribute agency to a group

18 ST

I-II q. 21, a. 3 (italics mine). From the Middle Ages to the Renaissance, 42.

19 Coleman,

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itself, especially when an aggregation of individual actions and intentions fails. Barring forms of strong group realism and their metaphysical fantasy,20 modest group realism offers a plausible way forward. I suspect that Aquinas was privy to the complexity of group agency and so did not describe group agents on all occasions in metaphorical terms. The fourth article of Question 21 in the Prima secundae corroborates this suspicion. Following his discussion of retribution, Aquinas asks whether human acts are rewarded or punished by God. His responsio reads: As we have noted, each man’s actions have the quality of merit or demerit through being directed to another, whether another single person [ejus] or the community [communitate ]. In both respects our acts, good or bad, are meritorious or otherwise in the sight of God. First, with respect to God himself. He is our last end, and this and all our acts ought to serve, as we have said. Consequently he who does an evil deed, which cannot be fitted into this service, fails to give God the honour due to him as our last end. Next, with respect to the community of the entire universe [communitatis universi]. In every polity [communitate ] it is the ruler above all [praecipue] who takes care of the common good [boni communis]; and it is his office to requite the good and evil done in the community. God is the governor and ruler [rector ] of the whole universe, as we have shown in the Prima pars, and especially of the world of intelligent creatures. Therefore it is clear that human actions will meet their reward and deserts from him; otherwise it would follow that he exercised no care over them.21

Here, Aquinas focuses upon God’s authority over the entire universe, an authority that Aquinas likens to that of an earthly governor who has charge over the common good of a polity. Apart from the theological point made regarding God’s kingship, Aquinas’s response is interesting for us because it introduces yet another agent—the rector or “governor and ruler”—that is involved in group action. When read in continuity with the third article, Aquinas’s response suggests that the ruler must 20 However, 21 ST

see my discussion of strong group realism and the invisible Church in Chapter 6. I-II q. 21, a. 4.

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contend with all three agent-types already introduced: the individual person, the whole community, and all members of the community. Let us briefly discuss this full range of agent-types and the possible authority relationships between them. Aquinas invites us to read the third and fourth articles of Question 21 as a single unit. Most obviously, it is a lesson on moral action, including the praise and blame that attends good and bad acts. But, as we have seen, it is also a lesson concerning the group ontology of Aquinas himself. Considering the group-agential terms of both articles, we see that Aquinas touches upon four agent-types involved in the (corporate) actions of reward and punishment. These are the individual person (a singulari persona), the whole community (a toto collegio; communitate),22 all members of the community (ab omnibus collegii partibus), and the ruler (rector ). Between them, Aquinas identifies an order of authority that governs retribution. First and foremost, as the fourth article notes, the ruler acts “above all” (praecipue). As for the other agent-types, the authority relationship between them is somewhat convoluted, but ultimately can be discerned. The third article indicates that the individual person involved (either as a recipient or agent of an action) acts “in one way” (uno modo), while the community acts “in another way” (alio modo). The community itself is also said to act “in the first place” (primo quidem et principaliter ), while all members of the community act “then” and “afterward” (secundario vero). Let us attend to the relationship between the community and its members. That the community itself acts first, I take it, is not so much a statement about temporality, as it is about public recognition. After the ruler, the agent that has a recognized public authority to reward or punish is the whole community, the collegium or communitas. Thus, by 22 When discussing the common good and God, Aquinas seems to prefer the term communitas to collegium. This specific, contextual use of language can be seen throughout the Summa theologiae. For example, see: ST I-II q. 91, a. 1, sc.; I-II q. 19, a. 10 sc.; I-II q. 109, a. 3, sc.; and III q. 46, a. 2, ad. 3. Therefore, when we approach the term communitas and its variations in the third full paragraph of the responsio (ST I-II q. 21, a. 4), we should accept their usage as a means to emphasize a political or theological point and not as a break with the logic of group agency, signalled by the term collegium, begun in the previous article (ST I-II q. 21, a. 3).

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acting “in the first place,” the community acts on behalf of its members since it has been given the prerogative to do so (we assume) by its members, ruler, or both. We can therefore understand all members of the community to be private persons. Viewing them as an unorganized collection, the omnes collegii partes (including the single persona) lack public authority to act “in the first place.” Nevertheless, they can act. So Aquinas recognizes their act of retribution as secondary (secundario vero)—again, not necessarily in terms of temporal sequence, but in terms of authoritative and public importance. We see then that, from the third and fourth articles, a three-tiered hierarchy of authority between the identified agent-types can be discerned. The superior authority is the ruler (rector ). The intermediary authority, having some sort of public recognition, is the whole community (a toto collegio; communitate). And the inferior authorities, being private persons lacking public authority, are the individual person involved (a singulari persona) and all members of the community (ab omnibus collegii partibus). Taking this to be a plausible interpretation, I now consider how the abovementioned hierarchy can be used to elucidate Aquinas’s modest group realism. Consider three hypothetical scenarios involving Aquinas’s four agenttypes (I include the “single person” within “all members of the community”): The first scenario entails all members of the community consenting to the ruler’s charge over them and their community; the ruler effectively acts on behalf of the group as a whole. The second scenario entails the ruler and the community acting in one way, but all members of the community acting in another; this scenario can arise when the people of a polity are said to disagree with the “nation” and/or its ruler. The third scenario entails the community acting separately from its members, including its ruler; this may occur when a group’s procedures and institutions force it to act in one way, despite all its members wanting it to act differently. Some might claim that the first scenario evinces a thin notion of group agency, which features a corporately empowered individual rather than a group agent properly speaking.23 And others might claim that 23 List

and Pettit, Group Agency, 7–8.

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the second and third scenarios cannot involve group agents because the actions and/or intentions of all members of the community do not add up to what the group itself is doing.24 But I would contend that, in all three scenarios, a modest group agent does exist. This, in large part, is attributable to institutions. These allow a whole community to act “in the first place” (primo quidem et principaliter ) and all members of the community to act “then” and “afterward” (secundario vero). Indeed, in the context of group action, commonly recognized institutions and practices—what Finnis calls “public policies”25 —are required as a means of coordination among individual members. Without them, individuals cannot act together efficiently or even effectively, since one party of a collective might wish to achieve a shared end in one way, while another party might wish to achieve the shared end in a contrary manner. A recognized public policy mitigates this confusion by coordinating the actions of individuals into a group endeavor. This holds in the case of the corporately empowered individual (the first scenario) because individuals already agreed to a public policy that makes the group act through this means. And it holds even when individuals eventually disagree with a group act (the second and third scenarios) because they too have already agreed to a public policy that allows the group—via its ruler and/or any other individuals that abide by the public policy—to act in a certain manner or towards a certain end. We will revisit the importance of institutions in Sect. 4.2 below. But, for now, it should be clear that strong group realism and elimination theory cannot be attributed easily (if at all) to Aquinas. The moral and politico-legal practice of his time did not permit group agents to be organic wholes or mere fictions: Both paradigms departed from a medieval custom of “law following practice.”26 And both rested uncomfortably against the Christian Aristotelianism of the age. Indeed, as inferred from the group-agential language of the Treatise of Human Acts, Aquinas himself seems to follow these general points. 24 For

related discussion, see Richard Ekins, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012), chap. 3. 25 Finnis, Aquinas, 28. 26 Coleman, From the Middle Ages to the Renaissance, 41.

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The “Anatomy” of Modest Group Agency

Let us continue to this chapter’s second aim: determining how Aquinas’s modest group realism might aid in the ascription of corporate religious liberty rights. The section above began a broad exposition of Aquinas’s group-agential thought, primarily by eliminating some available options. The present section completes that expository work with a more systematic presentation of Aquinas’s modest group realism. Here, I draw extensively upon the interpretation of John Finnis and subsequent development by Richard Ekins. My own contribution to this interpretive school, given at the end of the section, highlights how influences external to a group can facilitate or restrict the group’s corporate religious exercise. This suggests that the assignment of corporate protections must be attentive to the anatomy of group agency.

4.2.1 Groups as Social Actions We begin with Finnis’s interpretation. According to Finnis, Aquinas views associations or groups as (i) acting agents, composed of natural human persons, and (ii) coordinated actions, specifically when viewed within the order of moral philosophy. Both perspectives are inextricably bound together. Finnis writes: “In the parts of moralis philosophia dealing with human societies including states, the social group is understood as an order of human persons considered as acting persons; indeed, the group is studied as an order … of voluntary (and thus also intelligent, even if misguided) actions.”27 Categorization under moral philosophy, although uncommon in contemporary (legal) discourse, is vital for a comprehensive understanding of groups: It permits normative assessment of a group’s contributions to human well-being, while, at the same time, allowing us to treat a theory of groups—specifically Aquinas’s—as descriptive. Thus, by virtue of its agent- and action-focus, Aquinas’s group ontology is able (i) to describe what a group is (in terms of its “anatomy,” its coordinating and coordinated parts) and (ii) to evaluate coordinated or associational life according to its moral value. 27 Finnis,

Aquinas, 26 (italics in original).

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Surveying Aquinas’s political and ethical writings, Finnis offers this descriptive and ethically salient definition of groups. He writes: A group, association, society, or political community is, says his Ethics prologue, a kind of whole {totum}; actions, says his own treatise on justice, are of persons and wholes {suppositorum et totorum}. But a group, Aquinas underlines, is not a unity of “composition or conjunction {colligation} or continuity”; it is no more and no less than a unity of order. So the individuals who are “parts” or members of an armed force not only do things which are part of the actions of that force, but also do things which are not the action or even part of the action of the force as a whole. Contrariwise, the armed force does things—surrounds the enemy, occupies the town, wins the war—which none of the human individuals who belong to it as its parts do. Thus Aquinas firmly discourages attempts to understand human societies as organisms or substances. There are analogies between organisms and societies; “the different people in different jobs in a society are quasi (like) the different members (limbs, organs) of a single natural body”; but the disanalogies are fundamentally more important.28

Here, we are given a modest account of group agency—one that recognizes the sui generis actions of a group, actions that cannot be entirely reduced to the acts of individual members. In describing group agency thus, Finnis attributes group action to a “whole,” a unified subject. This is a genuinely existing group agent, but it is not an organism that has a natural life of its own. What then is the nature of Aquinas’s modest group agent, what Finnis refers to as a “unity of order”? Understood as having a “distinctive reality as [an order] of intelligent, voluntary, purposive action,”29 a group agent is a coordination of individual human persons and, especially, individual human acts. Finnis identifies “two kinds of elements” involved: First, there is (i) the purpose that gives point to individuals’ associating or coordinating together as a group. Following this is (ii) the actual coordination—the “interrelationships,” “factors co-ordinated,” or “patterns of association”—identified 28 Finnis, 29 Finnis,

24–5 (italics in original). 27.

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within the group or between the group’s individual members (“the parts of the whole”).30 Some explanatory comments are required for each element. First, we note the moral dimension of group purpose. Finnis rightly considers a group’s purpose to be the most fundamental element normatively speaking. After all, it is against a collective end, say, of promoting physical well-being, that we are able to evaluate whether a given coordination (or group) is meeting its intended moral objective.31 Moreover, it is a group’s purpose (particularly, its primary purpose) that helps to intelligibly distinguish one group from another. Hence, groups coordinated around health can be referred to as hospitals and groups coordinated around politics, as civic bodies.32 The ability to discern a group’s purpose is not merely a descriptive act; it is ethically relevant. This is especially the case for coordinating individuals, who must be able to answer why they are coordinating and to judge the effectiveness and moral value of their coordination. It is also relevant for external parties, including outsiders interested in joining the association and civic authorities charged with protecting or regulating associational life. As regards the second element (i.e., the coordination of the group’s members), a descriptive explanation—rather than a moral application— is required upfront. One contention raised against Aquinas’s action approach pertains to a skepticism toward the sui generis reality of social action. Finnis recognizes this eliminationist position and a potential motivation behind it: “Perhaps the notion of a social act is merely a legal or moral fiction, a ‘manner of speaking’ useful for ascribing to individuals, justly or unjustly, some culpability or liability for the acts of others?”33 But, following Aquinas, Finnis again affirms that social action, and thus group agency, has a reality that is analytically distinct from the actions of individuals. This reality is attributed in large part to two factors considered under the second element: a group’s public policy and ruler . Finnis writes:

30 Finnis,

25–6.

31 Ibid. 32 See

Miller, The Moral Foundations of Social Institutions, 47; and Seumas Miller, Social Action: A Teleological Account (Cambridge: Cambridge University Press, 2001), 182. 33 Finnis, Aquinas, 27.

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There is, then, no social act without the acts of individual human persons (just as there is no society without its individual human members). Yet the social act is a real, not a fictitious resultant of the individual acts, for there is indeed what I shall call a policy (however implicit, “unstated,” informal, and privy to the group itself ), a policy which the relevant members choose to participate in carrying out. This will also explain why acts of rulers (directors, coaches …) and their delegates can be acts of the group even when it is not obvious that some co-ordinated, joint action is under way. For it belongs to rulers and their delegates to initiate group action by words and deeds which define what shall be the public policy co-ordinating the future actions of relevant members of the group.34

We encounter here the two concepts anticipated in our previous discussion, wherein I posed three scenarios which suggest that a modest group agent exists even when (i) full consent is given to a ruler to act on behalf of the group, or (ii) the ruler and the group act apart from all group members, or (iii) the ruler and all group members eventually dissent or act apart from the group. In short, according to Finnis’s interpretation, group agency exists in such instances because of the group’s rulers (who authoritatively establish the group’s coordinating public policy) and because of the group’s public policy (which members choose to carry out).

4.2.2 Particular and Standing Intentions To round off our exposition of Aquinas’s modest group realism, we would do well to examine Richard Ekins’s account, which, through engagement with contemporary social ontologists like Searle and Bratman, focuses upon the important descriptive (and normative) category of intention. Accepting Aquinas’s position that “groups are associations that coordinate the action of individuals to some defining end,” Ekins extends Aquinas’s account of group agency by detailing the relationship between a group’s intentional act and the reasoning of the group’s individual 34 Finnis,

28 (italics in original).

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members.35 Ekins describes two types of relevant intention. The particular intention of a group is “the intention (the plan, the means-end package) that explains and defines the particular action of the group on this [or any given] occasion.” Supporting the particular intention is the standing intention, which is “the group’s general plan to select particular plans” or, put differently, the “intention to use certain procedures to determine … [the group’s] particular intention.” Standing intentions are characteristic of complex or formalized groups; and, importantly, such intentions denote the “enduring nature of the [general] plan, to which members of the group conform over time and within which particular plans are formed.” As Ekins stresses, the particular intention of a complex group is understood in light of its standing intention.36 For Ekins, an important element of both types of intention is their capacity to generate authority procedures, which, by establishing how a group’s particular plan of action is to be selected, directs the group to act “in the absence of unanimity.” Hence, authority procedures are especially valuable for groups that cannot wait for, or depend on, unanimity among members before acting.37 To illustrate how authority procedures function within complex groups, Ekins provides the following example: A company is a group (employees, management, and shareholders) that exists to profit in commercial enterprise. The group acts by reference to a corporate structure that includes a rule authorizing the CEO to set future company strategy. The rule provides that the intentional action of the CEO counts as the act of the group in deciding on strategy. The group’s standing intention is to pursue its purpose, to profit in commercial enterprise, by means of a general plan that includes this rule, which will in turn be used to generate further, particular plans on which the group will act. It follows that irrespective of the consequences that the law may attach to the action of the CEO, his intentional action is truly part of a group act: the group intends the individual act to be its act, the

35 Ekins,

The Nature of Legislative Intent, 64. 57–8. 37 Ekins, 58. 36 Ekins,

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CEO acts intending to direct the group, and the other members of the group coordinate their further action as his act directs.38

Ekins’s illustration describes well a group that features a corporately empowered individual—the kind of modest group agent discussed in our first hypothetical scenario following from Question 21, Article 4 of the Prima secundae. But it is not difficult to see how authority procedures extend to situations captured by the third scenario, wherein the group acts in one way despite the members (here, the employees and shareholders) and even the ruler (the CEO) intending to act in a different way from the group. This can happen, for example, when the CEO holds particular intention x and later changes to an antithetical intention y, but doing so only after all other members (begrudgingly) began coordinating their actions around x despite their original desire to go about advancing y. In this situation, the group itself (acting through its individual members who have chosen to participate in its standing intention or public policy) ultimately acts towards x, despite all the members (including the CEO) eventually wanting or intending to act towards y. While the CEO could order an about-face to align his or herself and the company’s members to act towards y, there will inevitably exist a time in-between wherein the group itself acts on a particular intention upon which no one (else) quite agrees. At this point in our discussion, we have detailed the anatomy of a modest group agent according to two thinkers working within the Thomist tradition. Finnis describes this anatomy as constituted by a group purpose and a coordination of factors. Ekins describes it in similar terms, pointing to an authority procedure that utilizes particular and standing intentions. Using terminology from both Finnis and Ekins, Fig. 4.1 provides an illustration of the Aquinas’s modest group agent.39 With an interpretation of Aquinas’s group ontology now given, I conclude this section by briefly considering how a group’s particular intention may be challenged by external influences, such as government 38 Ekins,

58–9. A. David, “Is Group Ontology Morally Distracting? A Natural Law Approach to Corporate Religious Liberty,” Oxford Journal of Law and Religion 8, no. 3 (October 2019): 19, Fig. 1, https://doi.org/10.1093/ojlr/rwz022.

39 Edward

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Particular intention

Standing intention

Jointly intended end

Public policy & Ruler

Fig. 4.1 The “anatomy” of Aquinas’s group agent

regulation. This discussion will help us appreciate the use of Aquinas’s ontology for the assignment of legal rights. In his business illustration, Ekins alludes to the fact that external influences bear upon the actions and intentions of groups and their individual members. He writes: “Irrespective of the consequences that the law may attach to the action of the CEO, his intentional action is truly part of a group act.”40 Ekins’s point, of course, is to note that a ruler’s act does indeed constitute part of a group action. But his point is made with reference to external influences, such as state corporation law or criminal law, that could, for example, prohibit the CEO’s intentional action of withholding dividends from shareholders or employing child laborers. External influences such as these affect both a group’s ruler (who helps establish and/or maintain the group’s standing intention) and the group’s standing intention itself. Because of this, for those rulers and policies that abide by the constraints of external influences (whether state regulations, terms of private agreements, social mores, etc.), certain actions prohibited by those external influences will be unavailable to a group. In other words, external influences could (legally) preclude certain types of group action and, by extension, particular instances of modest group agency. Returning to the dissenting opinion in Burwell v. Hobby Lobby Stores, Inc. (2014), we see then that Justice Ginsburg’s corporate theory argument is an attempt to preclude the possibility of corporate religious exercise for for-profit firms through recourse to external influences such as Court precedent, religious liberty laws, and theories of corporate personality (see Sect. 3.1). Seen against the anatomy of modest group agency, Ginsburg’s argument seeks to bar for-profit corporations from

40 Ekins,

58–9 (italics mine).

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acting upon, or forming, particular intentions of a religious nature— doing so by frustrating their standing intentions through legal and conceptual means. As Ginsburg might say: No precedent permits individuals within nonchurch entities to coordinate for religious purposes; no religious liberty laws permit those same individuals to coordinate for religious purposes; and no viable theory of the corporation permits them to do so either.41 On Ginsburg’s account, external influences simply do not grant the existence of corporate religious exercise in non-church organizational contexts. Hence, we are not wrong to categorize Ginsburg’s corporate theory argument (and relevant parts of her Hobby Lobby dissent) as a form of group-agency elimination. More importantly, though, in examining Ginsburg’s dissent, we are attuned to the fact that external influences—whether hypothetical or actual—can work against the mere possibility of corporate religious exercise. Therefore, when adjudicating corporate religious liberty disputes, we must ask whether a particular external influence (e.g., a federal statute) should be permitted to prohibit an occasion of corporate religious exercise. If we arrive at a negative conclusion to this query, we then must ask how the law should change in order to permit the corporate religious exercise as intended by members. This sort of inquiry is nothing more or less than an exercise of practical moral reason: the ascription of legal rights, made possible through an awareness of modest group agency. In the next section, I elaborate upon how this form of rights ascription can proceed if we (i) make assumptions about the group members’ procedurally related beliefs and (ii) prescribe the legal conditions to bring those beliefs into social reality. The second part of this procedure in particular entails the construction of a theory of corporate religious liberty.

41 Hobby

Lobby, 134 S.Ct. at 2794.

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The Theory in Outline

Having provided an exposition of Aquinas’s modest group realism, I turn now to the central aim of this chapter. My task in this section is to outline a theory of corporate religious liberty that (i) identifies appropriate moral subjects and (ii) provides just grounds and practical limits for the protections it endorses. As seen against our preferred method of legal rights ascription (see Fig. 3.1), my proposed theory is constructed by observing the anatomy of Aquinas’s modest group agent in different organizational contexts (Level 2) and determining the general legal conditions required to facilitate or restrict occasions of group agency (Level 3), as guided by a Christian ethical vision (Level 1). I begin this section with a theory of the freedom of the church, then I outline a corresponding theory of organizational exemptions.

4.3.1 Religious Actions and the Freedom of the Church A typical question in disputes over church freedoms concerns the extent to which the government should protect the distinctly religious actions of churches or religious organizations. How might a morally and grouprealist account of church freedoms respond? To find out, we can detail a basic response (or theory) by determining what legal conditions would need to be in place in order to permit a church’s standing intention to culminate uninterruptedly into a particular religious intention (i.e., an act of corporate religious exercise). This manner of proceeding has two stages. The first stage is straightforward and simply involves establishing a particular intention for a church group agent. The second stage involves looking to the group’s standing intention (its “general plan” or “intention to use certain procedures to determine … [the group’s] particular intention”42 ) and recognizing that it is constituted by two elements: (i) assumptions concerning the procedurally related intentions and religious beliefs of the group’s members, 42 Ekins,

The Nature of Legislative Intent, 57–8.

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and (ii) the external legal influences that do not restrict the procedurally related intentions of the group’s members and thereby permit the group’s religious action to be legally possible. At this stage, we determine the content of the first element and prescribe the content of the second. That is to say: We first make assumptions concerning the members’ procedurally related intentions and then prescribe the legal influences that would permit those intentions to play out into their intended religious action. It is the second part of this step that highlights the conditions that make the religious action of a church (for example, its catechesis) legally possible. It is those conditions, when morally and theologically informed, that constitute a Christian theory of the freedom of the church. Let us now execute the aforementioned procedure, using for our particular intention a church’s act of catechesis. With the first step completed, we immediately turn to the second step where we inquire into (i) the procedurally related intentions or beliefs of the group’s members and (ii) the legal influences that work with those intentions to facilitate the group’s intended act. Concerning the members’ procedurally related beliefs, there are three reasonable assumptions to make (which hold for catechesis, as well as for any of a church’s distinct religious acts). First, we assume that all the members of the group act towards religious truth when coordinating in their particular church community. Their shared end (religion or religious truth) makes intelligible the point of their coordinating and, thus, helps identify them as a church. But, perhaps more importantly for us, it also serves the church as a procedural guide for deciding whether to do certain actions. With regard to catechesis, a shared commitment towards religious truth serves as a normative standard against which to determine the value of engaging in such an act. Therefore, it constitutes part of the community’s general plan for decision-making. Second, we can assume that all members, in joining or remaining in a church community, consent to the church’s authority procedures.43 Concerning consent in general, this second assumption follows from 43 See

Christopher Lund in “Free Exercise Reconceived: The Logic and Limits of HosannaTabor,” Northwestern University Law Review 108, no. 4 (2014): 1201–20 (arguing that imposed legal obligations, which usually pertain to secular activities and/or harms inflicted upon members, are able to curtail church autonomy claims).

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the logically prior idea that a (modest) group action requires unanimity with regard to standing intentions, but not to particular intentions.44 Hence, members can disagree with the way catechesis is done (the particular intention), but they have already agreed upon, or consented to, the procedures by which catechesis will be developed and executed (the standing intention). These procedures may involve top-down decisionmaking, wherein an assigned minister decides catechetical practices without direct input from the wider church community. As for the direct moral or religious beliefs animating this second assumption, we can point to the human person’s free response to God. Consent is inextricable to this theological concept, as is seen in the various ecclesial understandings of religious liberty (see Sect. 2.1). In the context of corporate religious actions, especially of church communities, consent to particular and standing intentions is simply part of one’s free response of faith. A third reasonable assumption about members’ procedurally related beliefs follows from the notions of religious truth and consent. This is the assumption that members would agree to internal adjudication of the (moral, theological, or legal) propriety of their church’s religious action. Internal adjudication in this context denotes evaluation from appropriate church authorities—that is, those within the community who have been given the responsibility to assess the (moral, theological, or legal) value of a given religious act. It is assumed that members would object in the first instance to an equivalent evaluation from individuals or entities external to their church, since third parties may not understand the church’s doctrine and practices, and may thereby pass negative or generally misinformed judgements upon the act in question. That said, it is also assumed that members would welcome third-party evaluation in grave circumstances—those involving persistent moral wrongs, which could benefit from external adjudication for their redress.45 44 Ekins,

The Nature of Legislative Intent, 63, 70. various suggestions and reports of investigations into the Catholic Church by lay people and external persons (i.e., non-members), see Daniel Burke and Susannah Cullinane, “Report Details Sexual Abuse by More Than 300 Priests in Pennsylvania’s Catholic Church,” CNN , August 14, 2018, https://edition.cnn.com/2018/08/14/us/pennsylvania-catholic-church-grandjury/index.html; Russell Shaw, “Transparency and Accountability, But Above All Truth,” Catholic World Report, August 30, 2018, https://www.catholicworldreport.com/2018/08/30/transparencyand-accountability-but-above-all-truth/; and Dominic Legge O.P., “Cleansing the Church of 45 For

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Having laid out these assumptions, it is important to note that the first two assumptions must hold in actual fact if the group’s standing intention is to result in the particular intention (or group action) of religious catechesis. Hence: If the members do not intend to aim towards religion, and if they do not consent to the church’s (catechetical) authority procedures, then we are unable to say that the group’s members jointly intend the religious act in question. Lacking this intentionally coordinated effort, there is no group-agential act; thus, we cannot say that “the church catechizes,” and we lose a viable (group-agential) subject for normative and legal analysis. As for the third assumption, while it may not be absolutely necessary for the existence of the group act, a shared expectation of internal adjudication contributes to internal feelings of trust and group solidarity. These feelings support the group’s authority and public policy (i.e., its standing intention), thus contributing in an important way to the group-agential action. Let us turn to the second dimension of a group’s standing intention. This dimension involves the external legal influences that work with procedurally related beliefs to make the group’s act of catechesis legally possible. To say that such influences “work with” the beliefs identified evinces the normative purpose of our inquiry: We determine what a theory of the freedom of the church should look like, so that a religious action like catechesis can be executed without undue governmental interference. How then should this theory be shaped? I offer three proposals: first, governmental recognition of religious truth; second, governmental deference to church authority; and, third, governmental interference when morally justified. My first proposal holds that the state should recognize religious truth. This claim aligns with the assumption that, when in church, a church’s members coordinate their religious activities towards religious truth. To facilitate these activities, the state’s practice of the freedom of the church should recognize the distinct moral value of collective religious action

Clerical Sacrilege,” First Things, August 16, 2018, https://www.firstthings.com/web-exclusives/ 2018/08/cleansing-the-church-of-clerical-sacrilege.

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and, in turn, should encourage an appropriate governmental response— either through a non-establishment that creates space for churches to pursue such activity or through an establishment whereby the government itself actively engages in, or directly supports, ecclesial activity. Leaving aside the merits of non-establishment and establishment, it will be useful to examine a concept central to either form of church-state relation—namely, the idea of religion or religious truth itself. As our survey of the conceptual foundations of religious liberty suggests, religion (on a Catholic or Protestant understanding) covers activities from every area of life (see Sect. 2.3). But, for purposes of developing a theory of church freedoms, it is necessary—or, at minimum, helpful—to define religion more precisely. On this point, Aquinas proves useful. In the Secunda secundae, Aquinas notes that religion is directed toward an objective and transcendent end (God); and so he identifies religion’s telos not in any set of practices, but in a subject that has irreplaceable moral value. As Aquinas notes: When we give honor and reverence to God, “our mind is subjected to him and in this our perfection consists.”46 Thus religion, on Aquinas’s account, is specified as religious truth; and truth, pertaining to the mind, is recognized for its normative (and salvific) import. Aquinas also defines religion as one of the moral virtues, “whose objects are the means to the last end.”47 The “means” evoked imply a special relationship with God that is expressed in forms of behavior normally associated with various Catholic customs.48 These include devotion, prayer, and adoration (things to be done in places set apart for veneration),49 as well as other exterior acts such as making genuine promises in the name of God and praising God through voice and music.50 While some might object that this understanding of religion is far too narrow (and too Catholic) for public use, it can speak more 46 ST

II-II q. 81, a. 7, resp. (italics mine). II-II q. 81, a. 5 (italics mine). 48 Brian Davies O.P., Thomas Aquinas’s Summa Theologiae: A Guide & Commentary (Oxford: Oxford University Press, 2014), 258. 49 ST II-II qq. 82–84. See also ST II-II q. 81, a. 7. 50 ST II-II qq. 89 and 91. 47 ST

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generally to a contemporary conception of religion, one involving the rituals and practices of diverse kinds of houses of worship. In this sense, Aquinas’s understanding is catholic (i.e., universal) and, given its focus on cultus, is well suited for a social-action approach to church freedoms. With Aquinas’s definition in mind, we propose that the freedom of the church would, at minimum, recognize the normative value of distinctly religious activities. It would insist that religious actions, like catechesis in prayer, be free from interference precisely because the government itself recognizes the distinct and heightened moral value of such activity. We now move to a second proposal. This proposal aligns with the assumption that all members, in joining or remaining in a church community, consent to their church’s authority figures and mechanisms. To respect the group’s standing intention in this context, the freedom of the church requires governmental deference to church authority. As alluded to above, this second proposal maintains the long-standing tradition of two separate spheres (church and state) that interact with each other in constant tension throughout time. I follow Finnis’s general claim that such an arrangement need not, and should not, result in the state’s complete submission to the church. The proposal here is “more like the perennial Catholic doctrine that the secular and religious realms exist in parallel, within the heart and mind of the believer and in public forms … each free from the supervisory management of the other.”51 The concept of separate spheres of authority is a logical corollary to the idea—supported by modest group realism—that organized groups are differentiated according to their distinct primary ends. Far from being a Catholic doctrine alone, Calvinist thought has long supported this notion as well. According to theologian William Stevenson, John Calvin attributed “dramatically distinct” roles to the civic and ecclesial spheres.52 The civil government’s primary role, writes Calvin, is “to enable men to breathe, eat, drink, and be warmed.” Secondarily, it

51 John Finnis, introduction to Religion & Public Reasons: Collected Essays; Volume V , by John Finnis (Oxford: Oxford University Press, 2011), 5. 52 William R. Stevenson Jr., “Calvin and Political Issues,” in The Cambridge Companion to John Calvin, ed. Donald K. McKim (Cambridge: Cambridge University Press, 1994), 175.

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should see “that a public form of religion may exist among Christians.”53 This second task entails more than negative liberties. For Calvin, the government should work actively to “foster and maintain the external worship of God” and to “defend sound doctrine and the condition of the Church.”54 Yet, despite these strongly religious or ecclesio-centric tasks, Calvin’s civic government does not usurp the church’s authority. Rather, it serves the church, whose distinguishing marks are the administration of sacraments and the preaching of God’s Word.55 And as for the state’s proper authority, the church itself cannot infringe upon the state’s vital role. In the Neo-Calvinist thought of Abraham Kuyper, the proper “supremacy” of the state is evident in its threefold obligation: (1) … to compel mutual regard for the boundary-lines [of all spheres]; (2) to defend individuals and the weak ones, in those spheres, against the abuse of power of the rest; and (3) to coerce all together to bear personal and financial burdens for the maintenance of the natural unity of the state.56

Given the Calvinist belief that each sphere operates according to God’s created order, neither the church nor any other sphere can usurp the state’s distinct role.57 It might seem that the idea of separate and autonomous spheres undermines a proposal of state deference to church authority. After all, if the church and state are autonomous, then the church seemingly lacks a claim to state deference. But, to be clear, what the idea of sphere sovereignty denotes is a cooperative church-state arrangement. Drawing upon Augustine’s City of God , theologian John Milbank emphasizes this 53 John

Calvin, Institutes of the Christian Religion, vol. 2, trans. Henry Beveridge (London: James Clarke & Co., 1957), 653, bk. 4, chap. 20, para. 3. 54 Calvin, 652, bk. 4, chap. 20, para. 2. 55 Calvin, 289–90, bk. 4, chap. 1, para. 10. 56 Abraham Kuyper, “Third Lecture: Calvinism and Politics,” in Lectures on Calvinism (Peabody, MA: Hendrickson Publishers, 2008), 83. 57 Kuyper, 77. For a Catholic perspective concerning the limitations of ecclesial intervention into state affairs, see Finnis, introduction to Religion & Public Reasons, 7 (arguing that bishops should not give pronouncements on moral matters that require “judgments on empirical or predictive issues about which clerics have no specific competence to judge”).

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dual collaboration. Beginning with the state, Milbank notes that secular rule “is in fact crucial for human salvation.” He continues: For given the requirement of fallen man for the sway of political coercion and somewhat impersonal economic transaction, unless these things are self-denyingly ordered towards peaceful agreement and reciprocal exchange, then human beings will remain unredeemed and “unjustified” as unjust, since we cannot be saved merely in part.58

So the state does have a role to play in creating a self-denying order. But so too does the church. Soon after discussing the role of secular rule, Milbank states that “the visible Church on earth … seeks to shape a trans-community on the basis of metaphysical honour alone.”59 How does it do so? Through its sanctifying and prophetic tasks (also recognized by Calvin and Aquinas60 ), which imbue government activities with “metaphysical honour” or love. As Milbank notes, “no alienation from charity is involved here.”61 Thus the second proposal aligns with (i) the assumption concerning members’ consent to church authorities and with (ii) the long-standing tradition of sphere sovereignty. In Sect. 5.2.3, I discuss further the relationship between consent and separate authorities; but, at present, we can already appreciate how the general concept of sphere sovereignty both recognizes and respects the choice of members to associate in church communities. Let us turn then to my final proposal, which follows closely from the last. This is the proposal that the government can, and should, interfere upon church actions when morally justified. This proposal is not a collapse into “secular monism,” a complete subordination of church activity to the prerogatives of the state.62 Rather, it too is an appeal to the distinct sovereignties of church and state. But, further to this, it is 58 John

Milbank, Beyond Secular Order: The Representation of Being and the Representation of the People (Chichester, West Sussex: Wiley, 2013), 231–2 (italics in original). 59 Milbank, 239. 60 Calvin, Institutes, 289–90, bk. 4, chap. 1, para. 10; and ST III qq. 60–90 (see the Treatise on the Sacraments, especially q. 61 on the necessity of the sacraments for salvation). 61 Milbank, Beyond Secular Order, 232. 62 Finnis, introduction to Religion & Public Reasons, 6.

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an explicit recognition of the state’s divinely ordained role as “umpire” over inter- and intra-jurisdictional disputes.63 What this third proposal suggests, then, is that the government is justified in exercising its adjudicative function within churches when their actions—including their distinctly religious actions—involve grave moral wrongs. To be sure, the default of internal adjudication still holds in normal (i.e., morally ambivalent) circumstances. But once a specifically religious act requires the defense of “individuals and … weak ones … against the abuse of [ecclesial] power,” governmental interference may indeed be morally justified.64 For this proposal to hold, it must be accepted that the state itself can adopt what John Rawls terms a “conception of the good.”65 So much has already been implied: A state that cooperates with the Church (or churches) towards a final end in God has indeed taken a moral, and specifically religious, conception of the good as its own. While a NeoCalvinist might claim that the state’s moral knowledge is derived squarely from its own divine mandate,66 it is also useful to refer to the Aristotelian and Thomistic notion that the discipline of politics falls under the category of moral theory (see Sect. 3.3.2). Hence, the state, as a coordination of human beings subject to the natural moral law, is perforce a practically (or morally) reasoning community. In this sense, the Anglican theologian Keith Ward is right to say that “the church will not have uniquely privileged insight into what is right and wrong, in particular cases.”67 Indeed, the state, constituted by the exercise of practical reasoning, will have moral insights of its own. These insights might even be privileged—not in the sense of following directly from revelation, but rather as cutting through theological pretenses deployed in hiding or defending morally egregious acts. 63 Peter S. Heslam, Creating a Christian Worldview: Abraham Kuyper’s Lectures on Calvinism (Cambridge: William B. Eerdmans, 1998), 158; and Kuyper, “Third Lecture: Calvinism and Politics,” 83. 64 Kuyper, 83. 65 John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001), 18–24 (see §7 on “The Idea of Free and Equal Persons”). 66 Kuyper, “Third Lecture: Calvinism and Politics,” 82–3. 67 Keith Ward, Religion & Community (Oxford: Oxford University Press, 2000), 233.

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Jointly intended religious action

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External legal conditions

i. Collectively aim towards a religious end

i. State recognition of religious truth or value

ii. Consent to church authority on religious matters

ii. State deference to church authority on religious matters

iii. Expect internal adjudication of church act

iii. State interference only when morally justified

Fig. 4.2 A religious social action and the freedom of the church

Let us take stock. In this section, we have applied a Thomistic account of modest group realism to a theologically informed assignment of legal rights, specifically with regard to the distinctly religious actions of church communities. The resulting theory of church freedoms proposes three broad legal conditions that could facilitate members’ procedurally related beliefs, thus protecting or facilitating their corporate religious exercise. Figure 4.2 summarizes the assumptions made and the external legal conditions proposed. The latter in particular constitute the freedom of the church.68 I reserve further comment on the substantive moral content of my proposed theory for below (see Chapter 5). At present, it is worth stressing once more that the methodological means by which this theory was offered took into account insights from both group ontology and morality. Which set of insights is more foundational for the assignment of legal rights? In a certain sense, insights from the former are foundational since the anatomy of modest group agency allows us to identify the discrete actions and intentions (both individual and corporate) involved; these are part of the full range of corporate religious liberty’s appropriate moral subjects. In another sense, insights from Christian political morality are foundational since these are required in determining ethically appropriate legal conditions that can facilitate or protect the (religious) actions in question. Of course, it should be 68 David,

“Is Group Ontology Morally Distracting?” 22, Fig. 2.

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admitted that neither order of rational inquiry demands definitive placement as the originating point of legal rights ascription. As illustrated in Fig. 3.1, there is a bilateral exchange between moral theory and descriptive theories like group ontology. It is appropriate therefore to see both orders as foundational. And, pace certain political liberals,69 we reaffirm that group ontology can and should play a role in the assignment of legal rights.

4.3.2 Religiously Motivated Secular Actions and Organizational Exemptions The discussion above focused upon a central case, or core example, of corporate religious liberty. In its essential emphasis and application, the freedom of the church pertains to the distinctly religious actions of distinctly religious organizations. Of course, religious activities (or activities that are subjectively considered to be religious) take place outside of this categorization. Hence, as recognized in the ecclesial traditions discussed in Chapter 2, in order to account for religious activity within non-church organizational contexts, there ought to be a form of corporate religious liberty applicable to non-church organizations. This additional form is what I call a theory of organizational exemptions. What legal conditions should this theory supply for non-church entities, including the individuals and intentions that constitute them? Put differently, and with regard to for-profit corporations in particular, we ask: What legal conditions should hold in order to facilitate the religiously motivated secular actions of for-profit firms? We can answer this question using the same procedure adopted in our development of a theory of church freedoms. But, before commencing this constructive work, we must first provide a working definition of the term religiously motivated secular actions (RMSAs). For the sake of argument, let us assume that RMSAs are actions that (i) do not have a direct and distinctive religious end, such as catechesis or worship of God, but instead are (ii) more immediately aimed towards secular or mundane 69 Cécile

Laborde, Liberalism’s Religion (London: Harvard University Press, 2017), 172–3.

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ends like commerce, despite (iii) being ultimately aimed towards a religious end via the subjective intent of the believer. In short, RMSAs are a level removed from the ends of distinctly religious actions and, as such, are appropriately described according to their more proximate or immediate end—be it commerce, physical health, art, etc. Relatedly, let us agree that groups that are primarily organized towards non-religious (or secular) ends are appropriately identified as business firms, hospitals, performing arts centers, etc., rather than churches per se. We let this objective categorization hold, despite the subjective attribution of religious ends to the organizations (or group actions) in question. With this definition in place, and given our familiarity with the anatomy of modest group realism, we can proceed quickly through the assumptions and proposals of a theory of organizational exemptions. To begin, we choose a particular intention that features a RMSA, such as the sale of arts and crafts supplies executed for the glory of God; and we assume the action takes place within a relevant organizational context: here, an arts-and-crafts for-profit corporation. Next, we turn to the group’s standing intention, which supports the execution of the particular intention through agreement upon decision-making procedures. Following our analysis of church freedoms, we construct a theory of organizational exemptions by offering three assumptions of for-profit firms. These assumptions concern (i) religious truth as an end of the for-profit corporation, (ii) consent to internal authorities with regard to religious truth, and (iii) expectations around adjudication when the moral, theological, or legal propriety of a RMSA is in dispute. Let us take our particular intention as given and immediately consider each assumption and a corresponding legal proposal in turn. First, it is reasonable to assume that, as a procedural matter, not all members of a for-profit corporation join the firm with the intention of advancing its religious aims or RMSA.70 Nevertheless, with regard to the notion of religious truth itself, an appropriate governmental response 70 Cf.

Michael A. Helfand, “What Is a ‘Church’?: Implied Consent and the Contraceptive Mandate,” The Journal of Contemporary Legal Issues 21 (Spring 2013): 423 (arguing that employees give their implied consent to the religious aims of for-profit firms, especially when “religious symbols, organized religious prayer, or other concrete manifestations of a religious mission” are “pervasive”).

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to this situation need not consider the internal popularity of the religious position advanced. So, while church members may collectively act towards religious truth with unanimity, and while for-profit corporations’ members may do so in a more attenuated manner,71 a theory of organizational exemptions would encourage the government to recognize and focus upon the broadly religious nature of the act in the first instance. Should the government do this, it would recognize that even RMSAs are eventually aimed towards religion’s final end (i.e., communion with God); and thus religion as a moral virtue—as opposed to “religion as distinctly religious action”—would be the definition the government stresses.72 Accordingly, a theory of organizational exemptions would encourage the government to protect the RMSA in question due to the normative stake it has in believers’ lives and due to the honor it brings to God through the free response of those believers. With respect to organizational exemptions, what I propose therefore is not substantially different from our first proposal for a theory of the freedom of the church. In both cases, we claim that the state should recognize religious truth. The divergence between both theories, however, is more pronounced when we expand upon the assumption (or fact) of religious and moral pluralism within the membership of for-profit corporations. Let us pose a second assumption then that, given the fact of internal pluralism, when a RMSA negatively bears upon members, some or many members may renege on the consent given to the group’s standing intention, which (we recall) must be consented to in order for a group action to exist. Thus, if this assumption holds true in actual fact, a situation may arise wherein the group action cannot take place at all. To avoid this situation, a theory of organizational exemptions requires governmental deference

71 We can claim that all members actually do intend to advance the firm’s RMSA, since the relevant particular intention is ultimately supplied by the firm’s standing intention, which grants certain members (who do “believe”) the authority to shape the religious dimension of the group’s particular act. See Sect. 4.2. 72 Aquinas defines religion as a moral virtue. ST II-II q. 81, a. 5. Finnis, by contrast, but not in opposition to Aquinas, describes religion as pertaining to the human person’s relationship with the divine. John Finnis, Natural Law & Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 89.

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to a corporation’s internal authority procedures or, differently put, its standing intention. What does this deference entail? As applied to for-profit corporations, it involves respecting the group’s decision-making procedures that are supplied in part by state corporation law and other relevant legal tools. This upholds the ability of a firm to execute its RMSA, despite the fact that some or many members publicly dissent from the action, including the religious belief(s) that action may represent or the side effects it may cause. Such deference essentially uses legal action to override the internal dissent, which, barring an appropriate legal framework, could easily stop the group’s particular RMSA from happening. The question remains, however, as to whether the government should allow the group action to take place. After all, the group’s public dissenters may have good moral or religious reasons for insisting that the RMSA not occur or, at minimum, be altered in some ethically relevant manner. This point suggests that governmental deference should be conditional, responding to the various moral considerations that are inevitably at play within religiously pluralist organizations. Already we anticipate our third assumption concerning the procedurally related beliefs of for-profit membership. This is the assumption that members expect the group’s RMSA to be subject to external (governmental) adjudication.73 This is put forth for two reasons: First, since the action is intelligibly secular, it is assumed that various governmental bodies (such as the Bureau of Consumer Protection or the Equal Employment Opportunity Commission) will regulate the action in accordance with relevant laws and governmental expertise.74 Second, it is assumed that, when the action causes reflexive harms (i.e., harms upon members themselves), the government will have a general (and Kuyperian) interest in helping the weak and vulnerable and thus will alleviate negative consequences to an appropriate extent.75 73There

is the possibility of private, non-state adjudication, as preferred in some libertarian circles. See, for example, Bruce Benson, The Enterprise of Law: Justice Without the State (San Francisco: Pacific Research Institute for Public Policy, 1990), 349–78. 74 Finnis, introduction to Religion & Public Reasons, 5, 7. 75 Kuyper, “Third Lecture: Calvinism and Politics,” 83. See also Calvin, Institutes, 652–3, bk. 4, chap. 20, para. 2 and 3.

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It is important to note, however, that the third assumption does not take for granted that the civil government has an ecclesial competency or authority to evaluate the religious nature of RMSAs. Separate spheres of authority, ordained by God and recognized by natural reason, account for this jurisdictional position (see Sect. 4.2.1); the hard lessons of political history do as well.76 It follows that our third assumption presents jurisdictional difficulties for government action. The state has competence and authority over the secular dimension of a RMSA; but that jurisdiction stops at a religious boundary difficult—if not impossible—to demarcate.77 In the face of this complexity, I propose that a theory of organizational exemptions would encourage the government to confidently embrace its competency over secular actions, but to tread lightly when religious motivations are at stake. Practically speaking, this calls for a carefully handled regime of organizational exemptions. Will any harm override religious motivations? No. Will every religious claim win? No. In truth, responses to such questions depend in part upon the particular circumstances of a dispute. In the end, government action, despite being informed by the Church’s pastoral discourse, may or may not protect the RMSA in question. But Christians wanting RMSAs to outweigh on every occasion should not be dismayed when they do not. As Augustine writes, “the place of … promised peace and secure habitation is eternal, and rightly belongs eternally to Jerusalem the free mother, where the true people of Israel shall dwell.”78 That place does not subsist in the saeculum, where a theory of organizational exemptions is morally required. That place—the Christian hopes—is to come.

76 For example, see discussions on religious violence and freedom throughout various periods of Western history in Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 11–34; and Douglas Laycock, “Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century,” in Religious Liberty, vol. 1, Overviews & History (Grand Rapids, MI: William B. Eerdmans, 2010), 651–702. 77 On the challenges of defining religion for legal purposes, see Winnifred Fallers Sullivan, The Impossibility of Religious Freedom, new ed. (Princeton: Princeton University Press, 2005), 3. 78 Saint Augustine, The City of God Against the Pagans, trans. R.W. Dyson (Cambridge: Cambridge University Press, 1998), 801, bk. XVII, chap. 13.

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Jointly intended, religiously motivated secular action

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External legal conditions

i. Not all members aim towards religious end

i. State recognition of religious truth or value

ii. Not all consent to internal authority when social act poses moral harms

ii. State deference to internal authority, but tempered by religious pluralism

iii. Expect external adjudication of secular

iii. State interference of secular, when justified

Fig. 4.3 A social RMSA and organizational exemptions

We have now outlined three legal conditions that a Christian theory of organizational exemptions would embrace in response to the procedurally related beliefs of a for-profit corporation. Figure 4.3 visualizes these conditions with their corresponding assumptions.79 To conclude, allow me to point out one similarity and one difference between the theories of organizational exemptions and the freedom of the church. Like my theory of church freedoms, the proposed theory of organizational exemptions seeks to facilitate a group’s standing intention so that the group’s particular intention (or corporate religious exercise) can take place in actuality with little to no external interference, unless deemed morally necessary. However, the threshold for justifiable interference is lower for non-church entities than it is for churches. This is due in large part to a basic feature of non-church membership, internal religious pluralism, which requires sensitive moral navigation. Accounting for this basic feature is the fact that non-church entities primarily coordinate around secular ends. Such ends give non-church entities their purpose and point. But, more importantly, such ends allow us to describe our proposed theory as one specifically concerned with religiously motivated secular actions and the moral implications of granting their corporate exercise. This teleological focus differentiates organizational exemptions from the freedom of the church, both descriptively and normatively.

79 David,

“Is Group Ontology Morally Distracting?” 23, Fig. 3.

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Such differentiation is vital for understanding the logic and limits of corporate religious liberty.

4.4

Conclusion

At the outset of this chapter, I stated that I would construct a theory of corporate religious liberty that identifies the appropriate moral subjects at stake and the practical limits of the freedoms prescribed. Through use of Aquinas’s modest group realism and in conversation with diverse political theologies, I have done just that. My proposed theory holds that (i) the group-agential activity of individuals serves as an intelligible subject for moral analysis and, further, that (ii) the legal conditions required to facilitate group-agential activity suggest reasonable and theologically informed limits—including governmental recognition of religious truth, governmental deference to group decision-making, and governmental interference when morally justified. The nature and strength of these limits differ according to the type of corporate activity involved (religious or religiously motivated secular action) and the assumptions made concerning members’ procedurally related beliefs (as viewed within religiously homogenous or heterogeneous organizational contexts). Accordingly, such limits suggest two forms of corporate religious liberty: the freedom of the church and organizational exemptions. I elaborate upon my theory’s various theoretical and practical benefits in the next chapter.

5 Political Liberal and Theological Contentions

My theory proposes that group actions are the most appropriate subject of corporate religious liberty analysis. We arrived at this conclusion by first noting a certain descriptive weakness in the churches’ account of corporate religious liberty (see Sect. 2.4), then by providing clarification through Aquinas’s modest group realism, group-agency skepticisms notwithstanding (see Sects. 3.4 and 4.3 especially). In order to appreciate the benefits and limits of this proposition, we now need to step back from the details of my proposed theory in order to see how its emphasis upon modest group agents speaks to relevant contentions raised in political liberal discourse and in theological reflection upon corporate rights to religious freedom. Section 5.1 examines how my theory navigates the divide between individual- and group-rights advocates. And Sect. 5.2 notes how a distinction between the religious and secular helps my theory (i) to avoid overly expansive definitions of the term religious institution and (ii) to resist descriptions of the Church as merely voluntary. In each section, we will see how attention towards modest group realism helps solve a number of descriptive and normative challenges. © The Author(s) 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3_5

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Political Liberal Challenges

The contemporary debate over corporate religious liberty is often framed in terms of two opposing camps. On one side are those who conceive of group rights in terms of individual rights. On the other side are those who conceive of group rights as non-reducible to the rights of individuals. I refer to this basic distinction as the individual–group divide. And while it is commonly used to describe the contemporary debate,1 I argue here that it is mistaken with regard to the actual position of grouprights advocates and, further, that it is in need of replacement altogether. Shifting the conversation from groups and individuals to group-agential actions has numerous conceptual and practical benefits.

5.1.1 The Individual–Group Divide To begin, let us consider an individual-rights position, inclusive of an individualist construal of what group-rights advocates hold. Here, Richard Schragger and Micah Schwartzman again prove useful. Recall their voluntarist description of churches, as well as their “general account of conscientious objection,” which is a form of corporate religious liberty applicable to all group-types (see Sect. 3.3.4). Behind these two ideas, one finds a liberal commitment to individual dignity and rights. And, with respect to corporate entities, this commitment translates into a derivative account of group rights—that is, the idea that group rights are derived from, or reducible to, the rights of individuals. On this point, Schragger and Schwartzman write: It seems obvious that what grounds the assertion of group autonomy in the religion context is not the dignitary or conscience-based rights of institutions—for what would those be?—but rather the fact that individuals’ dignitary and conscience-based rights can only be vindicated because they are exercised through institutions. Certainly, the individual rights 1 See

Richard Schragger and Micah Schwartzman, “Against Religious Institutionalism,” Virginia Law Review 99, no. 5 (September 2013): 919–20; Richard Schragger and Micah Schwartzman, “Some Realism About Corporate Rights,” in The Rise of Corporate Religious Liberty, ed. Micah Schwartzman, Chad Flanders, and Zöe Robinson (Oxford: Oxford University Press, 2016), 345.

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of conscience and association encompass the right to gather together in a group, to decide the group’s purpose and doctrine, and to engage in group governance and decision-making in ways that advance one’s aims (albeit within limits).2

I take this sort of reasoning to be at the heart of the individual-rights position. Not only is it fundamentally Lockean in its tacit acceptance of the voluntarist principle,3 but it is also thoroughly Rawlsian. Rawls describes the freedom of association as necessary for the development of individuals’ “moral powers,” one of those being “the capacity for [developing] a (complete) conception of the good.” As Rawls notes: “Liberty of conscience and freedom of association are [proposed] to ensure the opportunity for the free and informed exercise of this capacity and its companion powers of practical reason and judgment.”4 Given its intellectual pedigree, the individual-rights position is strongly liberal and thereby resists sui generis group rights. But what do group rights entail? Schragger and Schwartzman understand the idea of sui generis group rights to involve a “standard argument.” We have already seen this argument in full schematic form (see Sect. 3.3.4), but it is worth re-presenting here in a more precise manner: First, it establishes that groups themselves have rational agency. Second, it shows that rational agency supports moral personality. Third, it uses moral personality to ground moral rights. And, fourth, it protects moral rights through corporate legal protections.5 Schragger and Schwartzman claim that the intellectual heritage of the standard argument is traceable to medieval corporatism and, more recently, to nineteenth-century German idealism and British Pluralism.6 In this vein, we see that the conservative philosopher Roger Scruton puts forth a version of the standard argument in his moral defense of corporations. Scruton argues that certain corporate persons (especially 2 Schragger

and Schwartzman, “Against Religious Institutionalism,” 966–67. and Schwartzman, 957–62. 4 John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001), 113. 5 Schragger and Schwartzman, “Some Realism,” 352, n. 32. 6 Schragger and Schwartzman, “Some Realism,” 349–50. 3 Schragger

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the Church) possess a sui generis agency, enjoy moral personality and, ultimately, are ends in themselves.7 They embed individuals within an “ecology of rational agency,” whereby individual persons are made aware of their heritage, including their moral obligations generated by past generations for the sake of present and future societies.8 And while corporate persons serve individuals in their moral formation, corporate persons themselves (says Scruton) are agents (“institutions … which have personality”9 ) that deserve their own legal protections. It is worth briefly noting Scruton’s argument because it might be one of the few “standard argument” accounts written in recent years; and even if it is actually one of many, it still falls outside of the corporate religious liberty debate proper. Indeed, in the debate itself, I find no prominent scholars who endorse the view that (some) corporations are rational agents that have moral personality, assert moral rights, and claim legal protections. Schragger and Schwartzman attribute the standard argument to religious institutionalists like Richard Garnett and Steven D. Smith.10 But, in defense of religious institutionalism, Garnett himself writes: The “freedom of the church” proposal … is not [a claim] that the freedom of religious conscience from government coercion “derives” from the autonomy, sovereignty, or independence of churches …. [It is neither] the source of [n]or the substitute for the immunity of the person from coercion in religious matters, but instead [is] a structural protection for that immunity.11

With respect to corporate religious liberty more generally, the U.S. Supreme Court argues in Burwell v. Hobby Lobby Stores, Inc. (2014) that the federal Religious Freedom Restoration Act was designed to protect 7 Roger

Scruton, “Corporate Persons: I—Roger Scruton,” Proceedings of the Aristotelian Society, Supplementary Volumes 63 (1989): 257–60. 8 Scruton, 266. 9 Scruton, 252. 10 Schragger and Schwartzman, “Some Realism,” 348, n. 13. 11 Richard W. Garnett, “The Freedom of the Church: (Toward) an Exposition, Translation, and Defense,” in The Rise of Corporate Religious Liberty, ed. Flanders et al. (Oxford: Oxford University Press, 2016), 55.

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the rights of the “people associated with … corporation[s],” not the rights of corporations per se.12 Thus even the U.S. Supreme Court, the progenitor of the doctrine of corporate religious liberty,13 does not hold the standard argument. Therefore, let us consider the standard argument to be a strawman put forth by individual-rights advocates in their attempt to emphasize (and avoid) potential dangers that group rights can present to various liberal values. But let us also consider Garnett’s structural account of religious institutionalism and the Hobby Lobby Court’s rights-derivation approach to be genuine aspects of the group-rights position. If we grant these points, then what exactly is this position? And how can a group-agential, or social-action, focus improve upon both it and the individual-rights position discussed above?

5.1.2 Bridging the Individual–Group Divide Garnett articulates the group-rights position well in the following passage, which, despite its specific focus upon church freedoms, suggests application to all group-types. Garnett writes: The “freedom of the church” can and should be seen as a structural feature of social and political life—one that promotes and enhances freedom by limiting government—and also as a moral right to be enjoyed by religious communities. It is not simply an effect or implication of private, individual claims to freedom of conscience and immunity from government coercion in matters of religious belief. If the immunity of conscience from coercion in religious matters can be said to depend on the “freedom of the church,” it is not in the sense that institutions are somehow prior to persons, and not in the sense that this immunity is somehow conferred by a church, but rather in a more practical, political sense.14

12 Burwell

v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2755 (2014). Chad Flanders, Micah Schwartzman, and Zoë Robinson, introduction to The Rise of Corporate Religious Liberty, ed. Flanders et al. (Oxford: Oxford University Press, 2016), xix (referring to corporate religious liberty as a legal doctrine, comparable to the U.S. Supreme Court’s doctrine of church autonomy). 14 Garnett, “The Freedom of the Church,” 56 (italics mine). 13 See

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What is this “practical, political sense”? Again, as Garnett states, it does not entail an understanding that groups temporally or ontologically precede their members. Instead, it pertains to the vulnerability of individuals as seen against intrusive state power. Garnett continues: [John Courtney] Murray’s claim was that “the protection of … aspects of life from the inherently expansive power of the state … depended historically on the freedom of the Church as an independent spiritual authority.” True, he worried that the conscience of the individual was vulnerable, that it was not up to the task of protecting itself, and that the modern state should not be trusted to honor it. But he did not seek to subordinate it to, or to substitute for it, the “freedom of the church.”15

To solidify our understanding of the group-rights position, two points are worth highlighting from Garnett’s passage. First, as alluded to above, insofar as Garnett’s basic argument seeks to protect individual conscience from government intrusion, it is applicable to church and non-church organizational contexts. It may be that non-church contexts require more governmental intrusion, given (the assumption of ) internal religious pluralism. But the basic argument concerning the value of individual conscience holds across all group-types nevertheless. Secondly, if we take Garnett’s passage as representative of an actual group-rights position (which I think we could), then we see that the group-rights position is not only structural (shielding individual conscience from state interference) but also moral (affirming the moral rights of groups). The latter point concerning group moral rights tempts us to view Garnett’s proposal as falling within the standard argument. But it avoids this categorization by denying an ontological primacy, or strong group agency, to groups themselves. Hence, on Garnett’s view, group moral rights are derived from the fundamental value of individual conscience. Such derivation, however, is “not simply an effect or implication of private, individual claims to freedom of conscience.”16 Instead, Garnett invites us to consider group moral rights as (translating practically into) structural protections, which are recognized on behalf of individuals. 15 Ibid. 16 Ibid.

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Effectively, then, group moral rights and structural protections are one in the same on the group-rights account. We see then that the group-rights position is not crudely corporatist as its liberal critics tend to portray. With regard to individuals and individual rights, the group-rights position is not unaware; it simply seeks to protect those individuals and rights by different means—not through a weakening of group autonomy, but through a limiting of government interference via structural protections or, as Garnett also puts it, “group moral rights.” Yet, herein lies a weakness of the group-rights position: Insofar as it uses terminology which suggests that groups themselves are moral rights-holders, the group-rights position risks falling into what I call the corporate personality trap. This is the situation in which groups are categorized into standard theories of corporate personality and then, based upon tacit moral assumptions, are denied or granted legal rights. The problem with this line of reasoning pertains to moral analysis. As Dewey and, separately, Schragger and Schwartzman note, it obfuscates moral deliberation by operating upon pre-determined moral conclusions and by not making explicit its moral assumptions (see Sect. 3.3). Furthermore, depending on the corporate theory chosen, the corporate personality trap claims that the group itself has (or does not have) a moral personality—one similar or equivalent to that of a natural human being. But, as Finnis notes, this tempting position should be resisted: When used in moral analysis, “‘personality’ is a distracting metaphor.” It diverts attention away from the actual flesh-and-blood individuals “whose wellbeing and fulfilment [are] seriously injured by the restrictions upon … the various forms of association which they have, or might otherwise have, with one another.”17 Insofar as the group-rights position falls into the corporate personality trap, we should resist siding with it completely. But this does not mean that we should endorse the individual-rights position as a result. Although the individual-rights position does focus upon actual

17 John Finnis, “Persons and Their Associations,” in Intention and Identity: Collected Essays; Volume II (Oxford: Oxford University Press, 2011), 98.

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flesh-and-blood individuals, it has the tendency to narrowly restrict organizational autonomy for the sake of individual claimants and at the expense of social coordination. (One need only look to Cécile Laborde’s freedom of association, Schrager and Schwartzman’s liberal account of church autonomy, and Marci Hamilton’s “common sense” theory of religious freedom to find this to be the case.18 ) We are thus left wanting a third way, a way in which we can protect both a larger expanse of groups (without attributing moral personality to them) and the individuals involved (without unduly interfering with their associational efforts and well-being). Given its social-action focus, my proposed account of corporate religious liberty can provide a useful alternative to those offered by the individual–group divide. Instead of wrestling between individuals and groups, the social-action approach shifts attention to the group-agential action(s) involved. This has two important benefits: Firstly, it allows the process of rights ascription to escape the corporate personality trap, since the subject immediately recognized is an action and not a thing to which one might attribute moral personality. Secondly, it still allows the process of legal rights ascription to morally account for individuals and groups since group-agential action cannot occur without them. Allow me to expand upon these benefits through two illustrations that draw from the Hobby Lobby case and from our previous discussion (see Sect. 4.1) of Aquinas’s agent-types as found in the Prima secundae, Question 21, Article 4. In our first illustration we replace Aquinas’s generic agent-types—the (i) group, (ii) ruler, (iii) all members of the group, and (iv) an individual from the group—with the agent-types specific to the Hobby Lobby case. These include (i) the group-agential action or the corporate religious exercise, (ii) the firm’s owner-controllers, (iii) all members, such as

18 Cécile

Laborde, Liberalism’s Religion (London: Harvard University Press, 2017), 175 (arguing that associational freedoms should only be granted to voluntary groups that have strong coherence and competence interests); Schragger and Schwartzman, “Against Religious Institutionalism,” 957 (constructing a Lockean, voluntarist conception of the freedom of the church); and Marci Hamilton, God vs. the Gavel: The Perils of Extreme Religious Liberty, 2nd ed. (New York: Cambridge University Press, 2014), 278–313 (using a historical survey to defend a Millian, no-harm understanding of religious freedom).

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Table 5.1

151

The group as group-agential action i

ii

iii

iv

ST I-II, 21, 4

Group

Ruler

All members

Individual

Hobby Lobby

Group action

Owner-controllers

All shareholders and employees

Individual shareholder or employee

shareholders and employees, and (iv) any single member of the firm. See Table 5.1. We now ask how this set-up influences the process of legal rights ascription. In this regard, we see that the group is no longer a thing or person to whom moral personality and rights are attributed. Instead, the group is an action or, specifically, the group-agential action of coordinating individuals (see Sect. 4.2.1). Therefore, the process of rights ascription associates a legal right to (i) the group action itself. Yet, while doing so, it also protects the individuals who bring the group action about; these are (ii) the firm’s owner-controllers and (iii) all members of the firm, including (iv) any given individual. Understood in this way, rights ascription transforms the individual–group divide from disagreement between individual and group rights to a consideration of group actions and the individuals involved. This effectively keeps the normative focus upon coordinated activities, which contribute to the well-being of flesh-and-blood human persons. While it may be tempting to think that the social-action approach is much too esoteric to be practically useful, it is important to note that contemporary legal practice seems to support it. Consider this dissenting opinion from the Third Circuit Court of Appeals in Conestoga Wood Specialties v. HHS (2013). Judge Kent Jordan of the Court writes: Given the special place the First Amendment plays in our free society, the Supreme Court in Bellotti instructed that, instead of focusing on “whether corporations ‘have’ First Amendment rights and, if so, whether they are coextensive with those of natural persons,” “the question must be whether” the activity at issue falls within an area “the First Amendment was meant to protect.” … In other words, the operative question under

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the First Amendment is what is being done—whether there is an infringement on speech or the exercise of religion—not on who is speaking or exercising religion. Hence, in the political speech context that it then faced, the Bellotti Court emphasized that, “[i]f the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” … Likewise here, the right to object on religious grounds to funding someone else’s reproductive choices is no less legitimate because the objector is a corporation rather than an individual.19

Thus we see an interpretation of First Amendment jurisprudence that emphasizes actions instead of persons. Leaving aside whether this interpretation is accurate of the Supreme Court’s jurisprudence, we can at least recognize an action-based approach in actual practice. And, even if the approach does not make explicit the potential (and specifically) group-agential character of the actions in question, the basic emphasis upon activities (as opposed to persons) is enough to note the approach’s practical use. A question remains, however, concerning the status of the group itself. Often, corporate religious liberty disputes speak of groups as agents existing over time and as rights-holders that are situated among natural persons in the legal landscape. So, the question is this: If we accept that groups are not just instances of group-agential action, then how does the social-action approach account for groups’ existence over time and the common practice of attributing rights to groups themselves? To answer this question, we can propose a second illustration, which is a slight variation of the first. In this second illustration we replace Aquinas’s generic agent-types with those specific to the Hobby Lobby case; but we view the group agent, in particular, in two different ways. Hence, while we still make note of (ii) the firm’s owner-controllers, (iii) all members, and (iv) any 19 Conestoga Wood Specialties Corp. v. Secretary of United States Department of Health and Human Services, 724 F.3d 377, 402–3 (3rd Cir. 2013) (holding that business owners could not make First Amendment or RFRA claims against the government’s contraceptive mandate) (Jordan, J., dissenting) (citing First National Bank of Boston v. Bellotti 435 U.S. 765, 776 [1978] and Id . at 777).

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Table 5.2 ST I-II, 21, 4

153

The group-as-social-action and the group-over-time

i

ii

iii

iv

Group

Ruler

All members

Individual

Ownercontrollers

All Individual shareholders shareholder and or employees employee

Hobby (a) Group-as-socialLobby action (b) Group-over-time

single member of the firm, we understand the group agent as (i)(a) the group-as-social -action, which is a specific occasion of group-agential activity, and (i)(b) the group-over-time, which refers to the perduring collection of standing intentions recognized, maintained, and engaged in by coordinating individuals. See Table 5.2. Understood thus, the group-over-time is the public policy that coordinates or orders the associating individuals, that brings distinction to their particular efforts, and that is capable of existing over a large expanse of time despite (high levels of ) turnover among members. The group-overtime, then, is the “thing” to which legal rights could be ascribed so as to protect the interests and rights of the coordinating individuals. That said, as effectively constituting (or facilitating) the standing intention of a collection of individuals, the group-over-time is inextricably tied to the intentional actions of natural human persons. It is therefore not far removed from the social-action focus of (i)(a); it is but a nuanced understanding of the latter, in light of the lasting existence of groups and the direct attribution of legal rights to them. In the end, it speaks to the fact that particular occasions of group action emerge from standing intentions that pertain not to those isolated activities alone, but to collective actions engaged in across spans of time. It should be clear that the idea of the group-over-time does not return us to the edge of the corporate personality trap. Legal rights given to the “thing” in question do not follow from the idea of corporate moral personality as construed in the standard argument. Instead, they follow from (i) the value of coordinated actions, (ii) the institutions that make coordinated actions possible, and (iii) the individual dignity and rights

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implicated. We conclude therefore that legal rights can be attributed intelligibly to groups themselves. Consequently, we can also see that Justice Samuel Alito’s derivative-rights argument—wherein he defends the application of the Religious Freedom Restoration Act (RFRA) to corporate persons—is not an example of standard-argument reasoning.20 As Alito says: “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”21 But we might also say: Protecting such rights thus protects the ability of owner-controllers, and of those who coordinate with them, to engage in corporate religious activity.

5.1.3 The Primacy and Moral Use of Social Action The above illustrations help us to appreciate how Aquinas’s group ontology allows the assignment of legal rights to morally account for individuals and groups, thus bridging the individual–group divide and escaping the (seemingly ever present) corporate personality trap. To round off this discussion, there are three remaining points to address. The first point concerns the reason for establishing laws that specifically protect the group-over-time, as opposed to the group-agential act in question. After all, if we can protect individual occasions of group action, why fashion laws that cover things or corporate persons? The answer to this question, I suggest, relates to the intuition behind Lon Fuller’s concept of the law’s “inner morality.” In short, Fuller holds that the law must have certain moral qualities in order to be a worthwhile enterprise for legislators and for those subject to the law. Public promulgation, ease of understanding, and stability over time are but three Fullerean moral qualities that a regime of corporate religious liberty can promote.22 Indeed, it can do so by extending legal rights to “persons,” broadly understood. This signals to coordinating individuals, and to the public at large, that any group can be considered to be a “person” under law for relevant religious liberty purposes. The protection of “persons” is arguably quickly and easily understood (perhaps more so than 20 See

Hobby Lobby, 134 S.Ct. at 2755.

21 Ibid. 22 Lon

Fuller, The Morality of Law, rev. ed. (London: Yale University Press, 1969), 39.

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the identification of group-agential action); thus, so long as such protection persists over time (as standing intentions exist over time), then there is moral reason to fashion laws that explicitly protect things or corporate persons. Nevertheless, the ability of corporate persons to enjoy publicly recognized standing under relevant law does not settle the question of whether a particular group, involved in a particular disagreement, should receive corporate religious liberty rights. This brings us to my second point: that no matter if we recognize (with Alito) that corporate bodies themselves should receive legal rights, in the end our moral assessment looks to the group action involved. In other words, we subject the group action itself to careful evaluation since no moral or legal right to religious liberty—specifically, to religious free exercise—is absolute.23 The group-over-time, of course, plays an important role in the process of legal rights ascription: It, in particular, informs our assumptions about the standing intentions of the group action under analysis. Such analysis may find, for example, that the group features a religiously heterogeneous membership and so expects a high level of state interference when internal disputes arise. Thus, moral deliberation requires attention to the group-over-time; but, in the end, the group-as-social-action is our most important moral subject. Finally, we note that the social-action focus assists in understanding why the religious beliefs of certain group members are immediately relevant for legal and moral analysis. One contention in the Hobby Lobby case involves the protection of owner-controllers and their beliefs: What justifies this narrow attention, seemingly executed at the expense of employees?24 Through its descriptive capability, Aquinas’s modest group realism gets us close to a normative explanation: In short, Aquinas shows that a group’s authority figures and public policy justify legal attention toward the authority’s beliefs in particular. The group’s nonauthoritative members consent to the authority’s public policy, and so 23 Freedom

of belief, as a legal right, is often understood to be absolute. By contrast, a Roman Catholic understanding of freedom of belief holds that there is no moral right to error (i.e., erroneous belief ). See Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church (Washington, DC: United States Conference of Catholic Bishops, 2014), para. 422. 24 “Religious Liberty,” ACLU, accessed May 9, 2020, https://www.aclu.org/issues/religious-lib erty (arguing that the beliefs of business owners should not trump the rights of third parties).

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the beliefs of non-authoritative members—whether dissenting from, or consonant with, those of the authority—are secondary. Secondary in what ways? Both in terms of explaining the existence of group-agential action (so long as the group members consent to the authority and policies, the group act occurs) and in terms of moral “involvement” (it is the authoritative members whose religious beliefs are immediately concerned). This theoretical understanding has bearing upon, and is compatible with, actual legal practice. One legal scholar interprets Justice Kennedy’s Hobby Lobby concurrence as creating a “doctrine of corporate sincerity,” which, in my opinion, closely aligns with the insights of Aquinas’s group ontology. According to this proposed doctrine, Kennedy is said to hold that: The only relevant beliefs [in corporate religious liberty disputes] are the ones [directly] burdened by an exercise of governmental authority—that is, the beliefs that would have guided a corporation’s conduct if the government had not acted in the challenged manner.25

Following this, the doctrine also holds that: The corporation has no beliefs or rights as a corporate entity, … [and] that the courts are concerned with the religious beliefs that govern corporate conduct because those are the beliefs that could be burdened by government regulations of corporations. Beliefs that did not guide corporate conduct [i.e., the beliefs of non-authoritative members] were burdened by private decision makers [i.e., the owner-controllers] rather than by government and are therefore irrelevant to the corporate claim.26

This proposal seems sound. It recognizes core aspects of the anatomy of modest group agency, such as (i) the importance of authority figures in

25 Spencer Churchill, “Justice Kennedy and the Unfolding Doctrine of Corporate Religious Sincerity” (working paper, Harvard Law School, May 2015), 65, http://dx.doi.org/10.2139/ ssrn.2716699. See also Spencer Churchill, “Duty or Dignity?: Competing Approaches to the Free Exercise Rights of For-Profit Corporations,” Harvard Journal of Law & Public Policy 37, no. 3 (2014): 1171–93. 26 Churchill, “Corporate Religious Sincerity,” 66.

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the formation of corporate conduct and (ii) the attenuated role that nonauthoritative members play in this formation. However, insofar as the proposal goes on to suggest that a “balancing [of ] competing dignitary interests” can be eschewed and replaced with “an inquiry into whose religious beliefs guide corporate conduct,”27 then I would suggest that the proposal forgets Aquinas’s normatively relevant insight that all members are involved in the actual execution of group-agential action. Indeed, since group acts require a unanimity of intention, all individuals—even those who lack the relevant authority—are involved in the act’s execution. Morally speaking, then, the group action should be subject to some level of regulation for the sake of the individuals involved. Descriptively speaking, however, we need not discount the existence of group agency just because not every member played an authoritative role in the formation of corporate conduct (see Sect. 3.2.3). Thus far, I have shown how the social-action focus of my proposed account helps navigate, and move beyond, the individual–group divide. Not only is this divide inaccurate with regard to the actual position of group-rights advocates, but it also ensnares us between an individualrights position that too narrowly restricts religious exercise to certain group-types and a group-rights position that risks falling into the corporate personality trap. The social-action approach avoids both problems. It focuses practical reason upon group-agential action, as opposed to individuals or group persons per se. This bridges normative concerns between individual and group rights, drawing our attention to the moral rightness of a group act (see Chapter 7 for further discussion).

5.2

Theological Considerations

We now address theological challenges as observed in the contemporary American debate. Recall how Catholic and Protestant descriptions of the Church evince a reductionism (describing the Church as merely voluntary) and an over-expansion (applying the term religious institution—which, in statutory law, denotes churches and their integrated 27 Churchill,

65.

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auxiliaries28 —to virtually any type of non-church organization). Both characteristics are problematic. Reductionism works against a theologically grounded view of the Church (she being more than the sum of her parts); and over-expansion risks diluting church protections (see Sects. 2.2 and 2.3). My aim in this section is to show how my theory avoids both types of problems through its distinction between religious and secular actions. I begin by defending the religious–secular distinction (pace theologian William T. Cavanaugh) and discussing the forms of corporate religious liberty that follow from its two sides (cum philosopher Nicholas Wolterstorff ). I argue that the religious–secular distinction does not inevitably lead to truncated or inappropriate protections for religious activity, so long as religion itself is appropriately and theologically defined. Afterward, I apply this conclusion—along with Aquinas’s group ontology—to the challenges of reductionism and over-expansion. Emerging from this are a disciplined use of the term religious institution and a non-reductive image of the Church.

5.2.1 The Religious–Secular Distinction According to my theory of corporate religious liberty, group-agential actions or organizations are made intelligible according to their distinct ends. These actions can be distinctly religious, or religiously motivated yet secular (see Sects. 4.2.1 and 4.2.2). This distinction, however, is unwelcomed by theologians who seek to avoid labeling anything as “religious.” Such categorization, it is argued, concedes too much to a “secular” state, which relegates the “religious” to a strictly private sphere. Better to not adopt the label, than to be marked out for systematic privatization. I am sympathetic to this general position, but it seems to presuppose that the definition of religion must always come from a secular state. It 28The

term religious institutions or religious employers includes “churches, their integrated auxiliaries, and conventions or associations of churches,” “any organization … the gross receipts of which in each taxable year are normally not more than $5,000,” and “the exclusively religious activities of any religious order.” Returns by Exempt Organizations, 26 U.S.C. § 6033(a)(3)(A)(i)-(iii).

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need not however. The definition could come from the churches in the first instance, and thus religion could be legally protected by an appropriately theological standard. To see how this might happen, let us consider William T. Cavanaugh’s criticism of the term religious (or religion) in American religious freedom discourse. In his article “Are We Free Not to Be a Religion?,” Cavanaugh claims that “religion” and the “religious/secular distinction” of which it is part are products of modern constructivism.29 He writes: “Religious” and “secular” are constructed categories that are used in different times and places for different purposes, sometimes benign, sometimes not … I agree with constructivists that the categories … are invented, constructed categories, not simply part of the way things are. And I think, furthermore, that that construction is not neutral, but has often distorted the reality of Christianity in the West.30

On Cavanaugh’s account the question of who has constructed the relevant definitions is settled: It was not the Church, he thinks, because (i) Augustine himself did not restrict his usage of religion to stereotypical religious activities (“we cannot strictly speaking say that religio means nothing other than the worship of God,”31 Augustine said) and because (ii) there was no political and religious–secular divide in the medieval period (although there was, Cavanaugh admits, “a distinction between civil and ecclesiastical authorities”32 ). Instead, notes Cavanaugh, religion was defined by a modern state that triumphed over ecclesiastical authorities and claimed that “the direct concern of the church would henceforth be the area of life designated ‘religion,’ which would leave ‘politics,’ ‘business,’ and other secular pursuits in the hands of civil rulers.” Religion thus understood is “a matter of voluntary interior individual belief,” 29 William T. Cavanaugh, “Are We Free Not to Be a Religion?: The Ambivalence of Religious Freedom,” Pro Ecclesia 23, no. 1 (2014): 9. 30 Cavanaugh, 11. 31 Saint Augustine, The City of God against the Pagans, trans. R.W. Dyson (Cambridge: Cambridge University Press, 1998), 392, bk. X, chap. 1 (italics in original) (a different translation of the same phrase is quoted in Cavanaugh, “Are We Free Not to Be a Religion?,” 9). 32 Cavanaugh, 9.

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which, when kept within the walls of a church, causes no harm to one’s neighbor.33 Continuing, Cavanaugh thinks that this constructivist account of religion has been forced upon, and even willingly adopted by, church authorities. Commenting on the federal government’s contraceptive mandate,34 Cavanaugh laments that the U.S. Catholic bishops adopt the constructivist account in their religious liberty efforts. This definition, Cavanaugh writes, poses three problems: “When the church allows itself to be defined as a religion, … individualism, separation of religion from the rest of life, and assimilation to the dominant culture are clear and present dangers.”35 Without detailing the extent of these problems, we see already the normative thrust of Cavanaugh’s argument: If we are a religion (or identify as religious), then we risk subjecting ourselves to a theological reductionism (whereby we understand the Church as a mere voluntary association) and a state-imposed social ostracism (under which our religious activities are relegated to the private sphere).36 What are we to make of Cavanaugh’s argument? I think Cavanaugh correctly identifies the reductionist and assimilationist tendencies of the U.S. Catholic bishops (see Sect. 2.2). Such tendencies do little to affirm a theologically grounded vision of the Church and even risk the social ostracism mentioned above. However, I think Cavanaugh is wrong to assume that the term religion itself (even if constructed) will lead inevitably to problems like individualism, separation, and a regrettable assimilation to the dominant culture. Cavanaugh suggests that we should be free from (the term) religion. But I suggest we simply need to reclaim it as our own. If we can, then religious liberty discourse could operate with theological paradigms, and theological paradigms could inform law—instead of following, and being regrettably shaped by, it.37

33 Cavanaugh,

10. Hobby Lobby, 134 S.Ct. at 2751. The federal government issued a mandate that would require employers to cover the contraceptive costs of their employees, i.e., the “contraceptive mandate.” 35 Cavanaugh, “Are We Free Not to Be a Religion?,” 17. 36 Cavanaugh, 21. 37 See further discussion at Sects. 7.2 and 7.3. 34 See

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But can the Church reclaim religion as her own? Apparently there is room for doubt: After all, Cavanaugh argues that the early Church eschewed the term, as well as the religious–secular divide that followed. Nevertheless, I think that the Church can reclaim the term because—by my reading—Cavanaugh’s history is not entirely accurate. Take Cavanaugh’s interpretation of Augustine. Augustine may not have used the word religio when describing the true worship of God. But Augustine never claimed that (i) a sphere of the distinctly religious does not exist, or that (ii) religio should not be recognized in our vocabulary. Indeed, in the City of God (specifically in the chapter that Cavanaugh references), Augustine writes that the religious sphere entails theosebeia, the Greek term for the worship due to God alone. Augustine passes over the Latin terms religio, cultus, and latreia because, in his time, all three were used for the distinctly “theosebeian” as well as for the mundane (i.e., earthly or secular tasks).38 Hence, while Augustine may have refrained (on one occasion) from using the word religio, he did not do so out of fear that the civil authority would recognize the “theosebeian” and then proceed to manipulate it, or relegate it to private life. He simply noted how true worship, theosebeia, escaped the Latin vocabulary of his time. Cavanaugh’s further claim that the medieval period did not make distinctions between the religious and secular also seems suspect. We might recognize with John Milbank, for example, that the medieval Church often did tasks that (we think) pertain to the state.39 But that historical fact speaks more to a lack of robust civil structures and less to an arrangement in which separate civil and ecclesiastic authorities did exist. In fact, Cavanaugh recognizes both authorities in the medieval period. But, I wonder: How was medieval society able to differentiate between both types if not through an awareness of their distinct primary ends—that is, the religious and the secular? Moreover, are we to think, as Cavanaugh suggests, that only the state desired this distinction for normative reasons, and that it was the state alone who ultimately prevailed in the numerous church-state settlements throughout 38 Augustine,

The City of God , 392, bk. X chap. 1. Milbank, Beyond Secular Order: The Representation of Being and the Representation of the People (Chichester, West Sussex: John Wiley & Sons, 2013), 232.

39 John

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history?40 I suspect that the Church, or various thinkers within the Church, sought to maintain the religious–secular divide for good normative reasons. Christ’s admonition to “render to Caesar the things that are Caesar’s, and to God the things that are God’s” may have played a role in this regard.41 So the religious–secular distinction has theological and normative warrant. Moreover, it can be defined by the Church herself, who, in doing so, could set the terms of the religious liberty debate. Leaving Cavanaugh aside, we see that the practice of differentiating the religious from the secular is embraced by the Christian philosopher Nicholas Wolterstorff. He uses this distinction to identify different types of religious freedom, and to reflect upon their reception in contemporary American society. In an essay entitled “Freedom for Religion,” Wolterstorff defines two forms of religious liberty. The first form, freedom of religion, pertains to paradigmatic examples of religious activities, such as “liturgical actions and acts of private devotion.” And it has four component parts: “[i] the freedom of citizens to engage in religious activities, [ii] the freedom of citizens to establish and participate in institutions whose central purpose is to sponsor religious activities, [iii] the freedom of citizens to induct their children into their religion, and [iv] the freedom of citizens to present their religious convictions to others than their co-religionists.”42 By contrast, the second form, freedom for religion, primarily concerns secular activities. Wolterstorff writes, “I understand freedom for religion to be freedom for citizens to engage in secular activities in religiously distinctive ways, whether by establishing and maintaining faith-based organizations and institutions for this purpose, or by doing so in pluralist or secular institutions.” Summarily put: “Freedom for religion consists of being free to go beyond the [distinctly] religious activities [of liturgy and devotion, for example] in the exercise of one’s religion.”43

40 Cavanaugh,

“Are We Free Not to Be a Religion?,” 9–10. 12:17 (RSV). 42 Nicholas Wolterstorff, “Freedom for Religion,” in Understanding Liberal Democracy: Essays in Political Philosophy, ed. Terence Cuneo (Oxford: Oxford University Press, 2012), 298. 43 Wolterstorff, 299 (italics in original). 41 Mark

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Behind Wolterstorff ’s twin theories is a normative concern regarding the freedom for religion in particular. By Wolterstorff ’s account, freedom of religion has experienced a pattern of legal protection that “has been quite clear and consistent throughout the twentieth century.” Protection of freedom for religion, however, has been “more complex and less consistent.” Why? Wolterstorff argues that the actual implementation of freedom for religion has been governed by the political liberal “Idea” of Wissenschaft , according to which one must accept a “standpoint of rationality and universality” in order to participate in political debate.44 But Wolterstorff thinks this “Idea” is indefensible and, wanting to add clarity and consistency to the practice of freedom for religion, encourages the adoption of Wissenschaft ’s opposite—namely, the particularist and non-irrational standpoint of religion. By Wolterstorff ’s lights, doing so would culminate in an “if any, then all” policy, through which religiously motivated secular activities would be legally protected if any equivalent secular activities were as well.45 Wolterstorff ’s theory shares at least two characteristics with my approach to corporate religious liberty; both characteristics speak to the importance of maintaining the religious–secular distinction. Firstly, since my and Wolterstorff ’s theories distinguish religious actions from religiously motivated secular actions, both theories afford nuanced reflection over the logic and limits of legal protections for each action-type. Wolterstorff, for example, is able to identify the governing epistemological and normative standards currently used to restrict freedom for religion; and my theory discerns that groups’ standing intentions differ according to their intended ends and so merit different degrees of government regulation. Pace Cavanaugh, then, there seem to be good theoretical and practical reasons for maintaining the religious–secular distinction. Secondly, while Wolterstorff is not concerned about the nature of corporate bodies or group-agential action as I am, he does embrace the foundational Aristotelian-Thomistic idea that actions (or organizations) are made intelligible by their primary ends.46 By extension, 44 Wolterstorff,

299–301. 302, 304. 46 Wolterstorff, 298–99. 45 Wolterstorff,

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religious and secular actions, on Wolterstorff ’s account, are identifiable as distinct subjects for organizationally specific theories of corporate religious liberty. With certain adjustments, Wolterstorff ’s freedoms of and for religion could be transformed into my proposed freedom of the church and regime of organizational exemptions. This would be a natural move since, like my proposed theory of organizational exemptions, Wolterstorff ’s freedom for religion both (i) extends corporate religious liberty to non-church entities and (ii) recognizes that nonchurch protections must be prescribed with great care in light of religious pluralism.47 In sum: Examination of Wolterstorff ’s theory helps us to appreciate how the religious–secular distinction does not inevitably result in inappropriate or inadequate protections for corporate religious exercise. On the contrary, a demarcation between the religious and secular assists in the moral deliberation required for a responsible assignment of legal rights. I now address two ambiguities identified in the churches’ statements on corporate religious liberty (see Chapter 2). I start with the overexpansion of the term religious institution, then address the voluntarist understanding of the Church. For both ambiguities, we ask: How does my proposed theory help clarify to whom or to what corporate religious liberty applies?

5.2.2 Defining the Term Religious Institution Recall the 2012 open letter (“Free Exercise of Religion: Putting Beliefs into Practice”) that argues against the forced compliance of religious institutions with the federal government’s contraceptive mandate. When defining the term religious institution, the authors incorporate virtually any organizational-type within its purview.48 The broadness of this term 47 Wolterstorff,

304. Exercise of Religion: Putting Beliefs into Practice—An Open Letter from Religious Leaders in the United States to All Americans,” United States Conference of Catholic Bishops, June 2012, para. 1, http://www.usccb.org/issues-and-action/religious-liberty/fortnightfor-freedom/upload/Free-Exercise-of-Religion-Putting-Beliefs-into-Practice.pdf. 48 “Free

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raises an important question: Should we follow the authors’ lead and insist that non-church entities should be protected as if they were houses of worship? Already in Chapter 2, we responded negatively to this query. But with my approach to corporate religious liberty now outlined, we can provide a more complete response: Instead of protecting non-church entities as if they were churches, we should protect the former under a separate theory of organizational exemptions, according to which (i) non-church entities are identified by their primary secular purpose and (ii) non-church religious liberties are tempered in recognition of ethically salient organizational features. At the core of this response is the religious–secular distinction, as well as the anatomy of modest group agency. Considered together, both allow us to appreciate the fact that non-church entities (as groups-over-time) are constituted by members who have procedurally related beliefs (that is, expectations concerning governmental recognition of religious truth, deference to group authorities, and interference when necessary) that differ from those of members within religiously homogeneous groups. Therefore, the relevant beliefs of non-church entities are immediately distinguishable as a descriptive matter; but they too are distinguishable for their ethical salience. Hence, distinct legal conditions are required in order to facilitate the procedurally related beliefs that nonchurch groups (or religiously motivated secular actions) are assumed to have. What we see in this response is an awareness of important descriptive distinctions between religious institutions and primarily secular organizations, as well as an awareness of important normative differences grounding legal rights for each group-type. Thus, for the church communities, my proposed theory offers two benefits. Firstly, it provides theological definitions of religion, religious actions, and religious institutions. This helps avoid conflation between non-church and church entities, which risks making proposed legal protections seem unreasonable due to a poor organization-to-rights fit. Secondly, my theory cultivates an attentiveness toward the religious pluralism and diverse moral stakes involved within non-church organizations. This attentiveness alone would be an improvement upon statements like the 2012 open letter, which gloss over ethically salient differences between

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houses of worship and effectively secular organizations. Of all types of institutions to speak out in defense of corporate religious liberty, the churches themselves (as prophetic and pastoral voices in society) must understand these basic differences. Failing this, the churches risk falling out of touch, simply by virtue of an inattentiveness towards basic social realities: hence, the great emphasis my theory places upon Aquinas’s modest group realism, which seeks to understand social (and associational) reality as best we can. According to this reality, secular organizations and religious institutions exist in tandem. They might even be treated differently for religious liberty purposes.

5.2.3 The Church as More Than Voluntary Another way that churches can improve their understanding of corporate religious liberty pertains to their public conception of the Church. On this count, the churches are reductionist, settling on (predominantly) voluntarist descriptions (see Sect. 2.2). But a Christian approach to corporate religious liberty would resist reductionism by (i) emphasizing the distinct moral value of religion, thus (ii) pointing to the distinctiveness of the Church herself. We need not discuss at great length the substantive content of religion’s distinct value. Instead, what I wish to highlight here is that, on my account of corporate religious liberty, the general idea of religion’s value is paired with the notion of voluntary membership. This pairing is meant to combat a reductive description of the Church, whereby churches are deemed ethically salient solely because they promote political liberal values,49 and not because they (also) promote theological values like right worship of God. At the same time, this pairing does not overlook the fact that churches are often and appropriately described as voluntary. It may be the case that some Christian beliefs promote non-voluntarist teachings,50 but the ecclesial accounts of religious liberty examined above,

49 Laborde,

Liberalism’s Religion, chap. 5. the list of theological positions presented in Schragger and Schwartzman, “Against Religious Institutionalism,” 957–62. 50 See

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and upon which my theory stands, affirm the free response of individuals in the act of faith (see Sect. 2.2). As a result, my theory recognizes (i) the normative value of voluntary choice, as well as (ii) a general, and empirically recognizable, trend of voluntary membership.51 On these two points, we find support from Joseph Ratzinger, who, in discussing the spheres of church and state, writes: For henceforth there are two communities, ordered to one another and yet not identical, neither of which has a totalitarian character. The state is no longer the holder of a religious authority extending to the innermost recesses of the conscience; rather, it points beyond itself to another community for its moral basis. On the other hand, this second community, the Church, understands herself to be the final moral authority one that is based, however, on voluntary membership and is entitled to mete out only spiritual and not civil punishments, precisely because she does not have the generally acknowledged rank of the state. Thus each of these communities has a limited radius of activity, and keeping their mutual relationship in balance is the basis for freedom.52

Notably, Ratzinger does not claim that the “final moral authority” of the Church is exhausted by, or depends entirely upon, the Church’s voluntary character; as Ratzinger notes elsewhere, this authority comes from above.53 Nevertheless, Ratzinger suggests that the Church’s moral authority is amplified by voluntary adherence: Insofar as it does not compel faith, the Church does its part to maintain a dual system of church and state—a system that serves as “the basis freedom” for those

51This

trend is also noted by Protestant historian, Mark Noll, who refers to churches—especially within the Protestant tradition—as “voluntary organizations.” See Mark A. Noll, “Chaotic Coherence: Sola Scriptura and the Twentieth-Century Spread of Christianity,” in Protestantism After 500 Years, ed. Thomas Albert Howard and Mark A. Noll (Oxford: Oxford University Press, 2016), 266. 52 Joseph Ratzinger, Church, Ecumenism, and Politics: New Endeavors in Ecclesiology, trans. Michael J. Miller et al. (San Francisco: Ignatius Press, 2008), 156 (italics mine). 53 “For the Church is not a club that makes her own statutes and rules and whose activities are limited to the sum of the activities of her individual members. She receives herself again and again from without.” Joseph Ratzinger, Principles of Catholic Theology: Building Stones for a Fundamental Theology, trans. Sister Mary Frances McCarthy S.N.D. (San Francisco: Ignatius Press, 1987), 37. See discussion at Sect. 6.1.1 below.

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within the earthly city (whose state has de facto authority) and the City of God (whose citizens give a free response of faith). So the pairing of religion’s distinct moral value with voluntary membership portrays the Church as an institution that should be free because the free response of faith necessitates this legal condition. This portrayal, of course, is meant for religious liberty purposes and so does not capture the nature of the Church in its entirety (as demanded by a mature ecclesiology, for instance). But it does get us a step closer to a theologically robust understanding of the Church. Thus it resists a reductionism that depicts the Church as yet another voluntary association in search of associational rights. At this point, we must ask what Aquinas’s modest group realism might contribute to the argument just made. Does our description of religious institutions (or of the Church) improve when we claim that they are (or the Church is) constituted by group-agential action? For reasons already described, I think that it does. Most importantly, Aquinas’s group ontology allows us to bridge the individual–group divide and so identify the diverse moral and legal subjects involved in corporate religious liberty disputes. Such identification is necessary if we are to assign legal rights in a reasonable and empirically informed manner (see Sect. 5.1.1). Moreover, the claims regarding voluntary membership and religion’s value are but restatements of the assumptions made with regard to churches’ standing intentions (see Sect. 4.3.1). So we see that our argument against reductionism already accounts for Aquinas’s group ontology.

5.3

Conclusion

To conclude this chapter, allow me to summarize our discussion thus far and, afterward, to pose a remaining group-ontological challenge. With the churches’ moral reflections reviewed (Chapter 2), and with group-agency skepticisms addressed (Chapter 3), the central chapter of this book (Chapter 4) at last developed a Christian approach to corporate religious liberty. In Sects. 4.1 and 4.2, I argued that a modest form of group realism—which, from the perspective of moral philosophy, views groups as social actions—can be attributed to Aquinas. Following

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the interpretive work of Finnis and Ekins, I described the anatomy of Aquinas’s group agent, pointing to its particular intention (the group’s purpose) and standing intention (the authority and public policy, which together coordinate members toward the group’s purpose). At the end of this exposition, I proposed that external legal influences can facilitate (or restrict) a group’s standing intention and thereby grant (or withhold) legal sanction for a particular group act. This point suggests that corporate religious liberty is not primarily concerned with this or that person’s rights; it is instead concerned with morally right social actions and, subsequently, with the legal conditions that help bring such actions about. This conclusion was brought forward into Sect. 4.3, where I—in conversation with various political theologies—outlined two forms of corporate religious liberty. The first form, the freedom of the church, focuses on distinctly religious actions. The second form, organizational exemptions, focuses on secular actions engaged in for religious reasons. Descriptively speaking, both forms depend on Aquinas’s group ontology. Normatively speaking, both draw deeply from the churches’ long-standing teachings on church-state relations. This chapter then detailed the benefits of my Christian ethical and group-ontological approach. In Sect. 5.1, I critiqued individual-rights advocates for their mischaracterization of religious institutionalists like Richard Garnett. But I also pointed to the ease with which religious institutionalists might fall into a corporate personality trap, justifying strong group protections via metaphysically ambiguous terms. Building upon the metaphysical, Sect. 5.2 then moved to theological considerations. There, I defended a distinction between the religious and secular, arguing (cum Nicholas Wolterstorff ) that practical reason requires this distinction in order to differentiate group-types and thus prescribe appropriate forms of corporate religious liberty. As our summary suggests, Aquinas’s group ontology—through emphasis upon agents and actions—provides a wealth of descriptive and normative insights that can help us confidently approach the “to whom or to what” of corporate religious liberty. Thus, in response to this book’s guiding question, we claim that corporate religious liberty best applies not to individuals and group persons per se, but to actions—i.e., the proper subject-matter of practical moral reason.

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While this conclusion merits even further support, especially through practical applications, I reserve that work for subsequent discussion (see Sects. 6.3.3 and 7.3 especially). At present, I wish to close this chapter with a remaining group-ontological challenge, one that must be addressed to complete our development of a Christian approach to corporate religious liberty. Succinctly put, the challenge is this: If our approach fully embraces the Christian tradition’s group ontological heritage, then it must also accept that tradition’s strong form of group realism, by which the Church herself is viewed as a corporate person. But if it does this, then our approach risks falling into the corporate personality trap, which we have already sought hard to avoid. So we wonder: How exactly should we incorporate strong group realism into our “modest” approach to corporate religious liberty? I respond to this and related questions in the next chapter.

6 Integrating the Strong Group Agency of the Church

Corporate religious liberty, I have argued, is best understood to apply to group actions, rather than to individuals or group persons per se. This conclusion follows from the moral insights of the Christian tradition, but especially from the descriptive implications of Aquinas’s group ontology. Indeed, with regard to the political community or state, it is a well-established position that Aquinas was a modest group realist. It seems that this position also holds with respect to Aquinas’s thoughts on the Church. According to Thomas Gilby O.P., “when [Aquinas] discussed the mystical body of the Church, there the cohesion [between members] was certainly more intimate than in any State.” However, Gilby continues, [Aquinas] would not have the Church’s physical unity pressed too literally. Of the individuals composing a human group he said cautiously, reputantur quasi unum corpus, and of the Church, dicitur unum corpus mysticum per similtudinem ad corpus natural .…, lest theology match an uncritical fashion in social philosophy, which lifts a social organism from biology or a Mass-Will from psychology, or in foreign history which treats

© The Author(s) 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3_6

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the John Bull or Uncle Sam of the cartoonist as real figures. The rhetoric may be more genial, the logic is no less invalid.1

Granting the accuracy of Gilby’s interpretation of Aquinas, it seems that the agency of both the state and the Church are best (and only logically) understood within the paradigm of modest group realism. But even if we accept Aquinas’s metaphorical position, might it be the case that the corpus mysticum, the mystical body of the Church, defies description solely within the logic that we attribute to Aquinas (and to ourselves)? Henri de Lubac S.J. suggests this much. In one of several works that anticipated the ecclesiology of the Second Vatican Council, de Lubac writes: [The] unity [of the Church] is so close that the Church is constantly personified. She is the betrothed, the bride that Christ has chosen, for the love of whom he gave himself up, whom he has made clean by baptism. She is the “chosen people,” the “son of God,” etc. She appears to Hermas in the guise of an aged woman “created before all things.” And here we are not dealing with mere metaphor.2

But, if not mere metaphor, then with what (or with whom) are we dealing? Like Aquinas, de Lubac never describes the Church in explicitly group-ontological terms. Nevertheless, de Lubac’s use of scripture and of the Early Church Fathers, seems to suggest a group ontology that, when applied to the Church, moves beyond modest group realism and the merely metaphorical. Could this paradigm be a form of strong group realism? Granting this, and assuming that certain believers hold this paradigm to be true, how might the Church thus understood be accounted for by my approach to corporate religious liberty? In this chapter, I offer an illustration of how strong group realism can fit within the theory of corporate religious liberty outlined in Chapter 4. The group realism explored is theologically grounded, following from 1Thomas Gilby O.P., Principality and Polity: Aquinas and the Rise of State Theory in the West (London: Longmans, Green and Co, 1958), 255–56 (quoting Thomas Aquinas, Summa theologiae I-II q. 81, a. 1; and III q. 8, a. 1). 2 Henri de Lubac S.J., Catholicism: Christ and the Common Destiny of Man, trans. Lancelot C. Sheppard (London: Universe Books, 1962), 19 (italics mine).

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Roman Catholic thought (especially from theologians who influenced, or were influenced by, the Second Vatican Council); and it pertains specifically to the Church (not to for-profit firms, for example). The chapter therefore builds upon the Roman Catholic and corporatist reflections offered in earlier chapters (see Sects. 2.2 and 3.3); but, most importantly, it demonstrates how strong group-realist beliefs and practices can and should be legally protected. I divide this chapter into three sections. Section 6.1 is analytical in nature, drawing upon Catholic theology to consider the extent to which the Church could be understood as a strong group agent. Section 6.2 then explores why the Church is not commonly described in strong group-realist terms today, doing so by tracing a gradual eschewal of the Church’s agency (as conceived in patristic and early medieval thought) via two historical transformations: first, the secularization of the term corpus mysticum in medieval Europe and, second, the reduction of Locke’s “true church”3 into a mere voluntary association. Finally, Sect. 6.3 engages with Schragger and Schwartzman’s “standard argument” to demonstrate how the Church (understood as a moral and supernatural person) ought to be integrated into my proposed theory.

6.1

The Church as Strong Group Agent

The first aim of this chapter is to determine the extent to which the Church could be understood as a strong group agent. To achieve this end, I offer a stipulative definition of strong group realism and, throughout this section, demonstrate how Catholic ecclesiological thought meets this understanding. In Chapter 4, I claimed that the Christian tradition offers two varieties of group realism—a modest form, proper to Aristotelian-Thomistic reasoning, and a strong form, which takes inspiration from scripture and theological reflection. Strong group realism, we recall, generally holds that group agents are beings with minds and intentions that are somehow 3 John Locke, “A Letter Concerning Toleration,” in Locke on Politics, Religion, and Education, ed. Maurice Cranston (London: Collier-Macmillan, 1965), 110–11.

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divorced from those of individual members (see Sect. 4.1.1). More thoroughly put, Christian List and Philip Pettit write that strong group realism, or “animation theory,” treats talk of group agents literally and seriously, thereby embracing realism about such entities. But where [other accounts treat] such talk as a way of speaking about simple acts of coordination among individuals … the animation theory takes it to refer to entities that coordination alone could not explain, at least not if its organicist metaphors are to be taken seriously. The view implicit in these metaphors suggests that it is possible, in a philosophical thought experiment, to replicate all the properties and relations we find among the individual members of a group agent without replicating the group agent itself. For the group agent to exist, so it is suggested, there must be something extra present: a force … surging from above.4

In a similar vein, and with equal incredulity, James D. Nelson describes strong group agents as “naturally occurring phenomen[a] that [have] an independent life and personality of [their] own.”5 Eric W. Orts, too, echoes this understanding, writing that “the strongest version of this ‘real entity’ theory holds that intermediary institutions … should be considered to have a metaphysically ‘real’ existence and an ‘organic’ institutional permanence separate from their individual participants.”6 As these descriptions make plain, strong group realism has neither a standard name nor a detailed definition. Nevertheless, common among theorists is a general understanding that strong group agency involves (i) an external force that accounts for group action and (ii) literal treatment of organicist or corporatist language. For our purposes, we can refer to these two criteria as the animation requirement and the literalness requirement. As I explain below, theological reflection upon the Church,

4 Christian

List and Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (Oxford: Oxford University Press, 2011), 9 (italics mine). 5 James D. Nelson, “Conscience, Incorporated,” Michigan State Law Review 2013, no. 5 (2013): 1571. 6 Eric W. Orts, Business Persons: A Legal Theory of the Firm (Oxford: Oxford University Press, 2015), 15.

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especially from the Roman Catholic tradition, can be seen to support both requirements. Let us consider each requirement in turn.

6.1.1 The Animation Requirement and Individual Consent The animation requirement holds that the actions of a strong group agent are explained by an external force, one distinct from the internal inputs (so to speak) of members’ consent and coordinated activities, entailing both particular and standing intentions (see Sect. 4.2). When analyzing a religious organization or church, we ask: What could possibly account for its actions apart from its internal members? One plausible answer is that Christ himself works from without, and upon, the group in order to direct its actions. He is the external force in question and thereby accounts for the strong group agency that mysteriously operates independently of a church’s members. In a discussion of the free gift of faith, Joseph Ratzinger suggests this interpretation. He writes: But from whom does one receive this gift? Proximately, of course, from the Church [“the believing community”]. But even the Church does not possess it of herself. It is bestowed on her by the Lord—and not just in the distant past. On the contrary, the Church is able to live the faith both now and forever because she receives it as a gift. For the Church is not a club that makes her own statutes and rules and whose activities are limited to the sum of the activities of her individual members. She receives herself again and again from without: she lives from the word that is given her; she lives from the sacraments that she cannot institute but can only receive. If faith is directly a gift of the Church, it is nevertheless also true that the Church herself exists at all times only as the Lord’s gift.7

Ratzinger’s use of the term Church refers to (what he earlier calls) a “believing community” of individuals. But, as Ratzinger makes clear, 7 Joseph

Ratzinger, Principles of Catholic Theology: Building Stones for a Fundamental Theology, trans. Sister Mary Frances McCarthy S.N.D. (San Francisco: Ignatius Press, 1987), 37 (italics mine).

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neither this community nor its actions are mere aggregations of individual inputs. This could suggest a form of modest group realism, according to which the community’s standing intention accounts for the group-agential actions of the Church. But modest group realism is not implied in Ratzinger’s discussion. Instead, he points explicitly to a force (or person) “from without” that makes the group, the Church, what it is—namely, a sacramental community that exists for all time as “the Lord’s gift.” Thus, if we accept (i) Ratzinger’s non-aggregative description of the Church, (ii) his omission of modest group-realist discussion, and (iii) his emphasis upon the Church’s external life source, then it is plausible that Ratzinger’s reflections meet the animation requirement and thereby suggest a strong group-realist account. Strong group realism can also be discerned in de Lubac’s classic text, Catholicism. While discussing the necessity of the Church for salvation, de Lubac emphasizes her active agency and even her physical bonds or body. With regard to unbelievers, he writes, “those who do not know the Church are saved by her … in such a way that they incur the obligation of belonging to her.”8 And concerning Jews and Gentiles who lived before Christ’s visible coming, de Lubac writes that they “must be described as saved by Christ … [even] though they lived before the appearance of the visible Church among them.” Continuing, de Lubac points out that “they are saved not by belonging in a purely spiritual, intemporal manner to the soul of the Church, but by means of a very real though indirect and more often hidden bond with her body.”9 De Lubac’s comments evince a literal interpretation of the Church’s body, a topic I will address in more detail below. At the moment, we can dwell upon the active agency that both de Lubac and Ratzinger attribute to the Church. We read that the Church saves; and, while de Lubac and Ratzinger recognize the necessity of human cooperation in this context,10 they unapologetically speak of the Church’s agency (again, made possible through Christ working “from without”) as operative without members’ 8 De

Lubac, Catholicism, 121 (italics mine). Lubac, 122–23 (italics mine). 10 Ratzinger, Principles, 41; De Lubac, Catholicism, 122–23. 9 De

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unanimity11 and as necessary for the individual’s life of faith. In the opinion of some political liberals, this position threatens group domination at the expense of individual consent.12 But, as a theological and specifically Christian ethical position, this point recognizes that the individual’s act of consent (or faith) is necessarily embedded within a larger community. “No one can represent himself alone,” Ratzinger notes, “however much he may believe. Faith is … an active passivity and a passive activity that need[s] other persons.”13 Inasmuch as the Church is a distinct agent (irreducible even to the group-agential actions of her individual members), she herself could be one of those necessary “other persons” to which Ratzinger refers. After all, as it is said in faith, believers consider her necessary for, not antithetical to, their well-being.14 Let us turn now to the literalness requirement, keeping in mind that our aim in this chapter’s first section is not to supply an exhaustive account of Roman Catholic group realism, but rather to indicate how strands of Catholic reflection align with a baseline understanding of group realism in its strong form.

6.1.2 The Literalness Requirement and the Invisible Church The literalness requirement holds that language used to describe the agency of a group can be interpreted in a literal, or not merely metaphorical, way. Roman Catholic theology and, more specifically, Roman Catholic ecclesiology seem to align with this requirement. To begin to support this claim, we can look first to Saint Paul’s exhortation concerning prostitution in 1 Corinthians 6:15. It reads: “Do you not know that your bodies are members of Christ? Shall I therefore take the members of Christ and make them members of a prostitute? 11 Modest

group realism requires unanimity with respect to a group’s standing intention. See the discussion of Ekins in Sect. 4.2.2. 12 For example, see Richard Schragger and Micah Schwartzman, “Against Religious Institutionalism,” Virginia Law Review 99, no. 5 (September 2013): 959. 13 Ratzinger, Principles, 41 (italics mine). 14 Ratzinger, 50.

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Never!”15 In this passage, we may be tempted to attribute a merely metaphorical intention to Paul’s words—since, obviously (one might say) Paul knew better than to think that sexual impurity would actually join the body of Christ to a prostitute. But there is reason to doubt this interpretation. Consider this alternative perspective: We might judge that someone who calls the church “the body of Christ” is employing a metaphor. But even if the biblical authors were capable of writing in a self-consciously metaphorical manner, we should not assume they understood their language in this way. A person can be said to be using a phrase metaphorically only if he or she recognizes a distinction between the two realities involved. If I say … that “man is a wolf to man” … I am not intending to say that human beings have fur. The phrase does convey meaning, but I recognize that it is literally false. Would Paul, or an author writing in his name, have regarded his talk of the body of Christ as literally false? Given his concern that sex with a prostitute would pollute the body of Christ (1 Cor 6:15), this seems unlikely.16

This argument seems cogent, particularly in light of other literal interpretations of scripture, including, for example, Roman Catholic readings of John 6:51 (“I am the living bread which came down from heaven; if any one eats of this bread, he will live forever; and the bread which I shall give for the life of the world is my flesh”) and 1 Corinthians 11:24 (“This is my body which is for you”).17 Of course, it must be admitted that a literal interpretation of the term body of Christ by no means necessitates a strong group-realist conclusion. It could suggest a different, non-group-agential point. For example, Pope Pius XII’s encyclical Mystici corporis christi interprets the phrase “Mystical Body of Christ” to mean that the Church is a visible institution, “something concrete and visible,” not a mere assembly of various Christian communities “join[ed] together by an invisible link.”18 Being 15 1

Corinthians 6:15 (RSV). Oxford Encyclopedia of the Bible and Theology, ed. James E. Harding and Gregory W. Dawes (Oxford: Oxford University Press, 2009), s.v. “Body.” 17 John 6:51 and 1 Corinthians 11:24 (RSV). 18 Pope Pius XII, Mystici corporis christi (London: Catholic Truth Society, 1943), para. 14. 16The

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a visible institution is one thing, being a strong group agent is quite another. That said, we here are concerned with specifically group-agential language or argumentation; and it is evident that, within Roman Catholic circles, the terms body of Christ and mystical body of Christ are also interpreted literally with respect to group agency itself. Recall our discussion of the freedom of the church (see Sect. 2.2.1), where we noted that the Second Vatican Council chose to speak of the Church as existing in two inextricable forms: These are (i) the invisible Church of Christ (the one, unique Church founded by Christ), which subsists (subsistit ) or is fully present in (ii) the visible Roman Catholic Church. To appreciate the strong group agency that this distinction implies, we must explore the controversy behind the Council’s choice of the term subsistit as used to describe the relationship between the Church’s two forms. A brief commentary, picking up from Mystici corporis, will suffice. As mentioned above, Pius XII’s Mystici corporis claimed that the invisible Church of Christ is a visible institution. Specifically, the encyclical held that the invisible Church is identical with the visible Roman Catholic Church—it simply is (est ) the visible Roman Catholic Church. But the Second Vatican Council, roughly twenty years after Mystici corporis, somewhat departed from or refined this ecclesiological position. In particular, the Council recognized explicitly that authentic ecclesial elements (or genuine aspects of the invisible Church) do exist within Protestant communities. It therefore decided that Lumen gentium, the Council’s dogmatic constitution on the Church, would need to account for this more inclusive theological reality. The Latin phrase adest in (“is present in”) was therefore substituted for est. The new term, however, was ultimately deemed insufficient, as it did not go far enough to affirm the long-held belief that the visible Roman Catholic Church possesses the “fullness” of the invisible Church of Christ. Therefore, turning to a philosophically more substantive term, the Theological Commission in 1963 dropped adest in and replaced it with subsistit.19 As Joseph Ratzinger noted, all the council fathers 19 See

Avery Dulles S.J., “Nature, Mission, and Structure of the Church,” in Vatican II: Renewal within Tradition, ed. Matthew Lamb and Matthew Levering (Oxford: Oxford University Press, 2008), 28.

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thought subsistere was substantially different in meaning from esse. He writes: “Subsistere is the form of existence of a being resting in itself, as in particular occurs in the case of an ‘active agent.’”20 Guy Mansini O.S.B. describes the term in this way. Subsistence, he says, implies the unique and complete capacity to act [that] is located only in the Catholic Church; it makes of her an agent in a unique sense as compared with all other churches and ecclesial communities. This unique agency, moreover, connotes existence as of a hypostasis or individual—subsistence in the philosophical sense.21

It is not difficult to see how these deliberations evince a group-agential logic that is compatible with the literalness requirement. A Church that subsists has an agency unlike that of any other group. Thus to speak of her active agency is no mere metaphor; it is a literal, even philosophical, statement.

6.1.3 The Eucharist Makes the Church Thus far we have explored how certain ideas in Catholic ecclesiology meet the animation requirement (insofar as an external force, Christ himself, accounts for the Church’s agency) and the literalness requirement (insofar as group-agential language describing the Church is not merely metaphorical). Meeting both requirements, the theological reflections above fulfill a basic definition of strong group realism. To this conclusion, a brief and complementary point can be made. This point concerns a Eucharistic dimension of the Catholic form of strong group realism just observed. Carrying forward de Lubac’s reflections upon the Church, we can say that Christ not only accounts for the Church’s agency, but that he does so in a particular way—that is, through the Eucharist. On this point, de Lubac writes: 20 Joseph

Ratzinger, “The Ecclesiology of the Constitution Lumen Gentium,” in Pilgrim Fellowship of Faith: The Church as Communion, trans. Henry Taylor (San Francisco: Ignatius Press, 2005), 148, n. 18. 21 Guy Mansini O.S.B., “Lumen Gentium,” in The Reception of Vatican II , ed. Matthew Lamb and Matthew Levering (Oxford: Oxford University Press, 2017), 52.

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In order thus to bypass the sociological order and to become in all truth this “body of the Church made alive by the Spirit,” the ecclesial body has to become in all reality the body of Christ: “let it be made the body of the Church,” “the Church, made into the body of Christ.” Now, the Eucharist is the mystical principle, permanently at work at the heart of Christian society, which gives concrete form to this miracle. It is the universal bond, it is the ever-springing source of life. Nourished by the body and blood of the Saviour, his faithful people thus all “drink of the one Spirit,” who truly makes them into one single body. Literally speaking, therefore, the Eucharist makes the Church.22

Quoting Anselm, John Chrysostom, and others, de Lubac here conveys a patristic understanding of the Church that succumbs neither to mere metaphor nor to a strict separation between corpus verum (Christ’s natural body), corpus mysticum (the Eucharist), and corpus Christi (the Christian society or Church). This early, tripartite understanding of the body of Christ unifies what high medieval categories would later sever into distinct, and perhaps unrelated, parts (see Sect. 6.2.1). Therefore, in putting forth this understanding, de Lubac seeks to reclaim the mystical and corporate nature of the Church. For our purposes, this helps to view her as an active agent who nourishes the faithful with the body of Christ, thus transforming them into a single mystical body.23

6.2

Historical Episodes of Group-Agency Elimination

Having offered a Roman Catholic account of strong group agency, I now explain (i) why the Church is not commonly described in strong group-realist terms today and (ii) how this situation affects our contemporary understanding of church protections. To achieve these aims, I 22 Henri De Lubac S.J., Corpus Mysticum: The Eucharist and the Church in the Middle Ages, ed. Laurence Paul Hemming and Susan Frank Parsons, trans. Gemma Simmonds C.J., Richard Price, and Christopher Stephens (London: SCM Press, 2006), 87–88 (referencing Saint Anselm at n. 85 and quoting Anselm of Havelberg, Odo of Ourscamp, Placidus, and Saint John Chrysostom at nn. 88–91) (original italics removed). 23 De Lubac, 88.

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provide a historical account of two transformations that contributed to a gradual elimination of the Church’s group agency.24 The first transformation involves the application of the term corpus mysticum (once reserved for the Eucharist and Church) to the (secular) state in the High Middle Ages; the second transformation involves the secularization of John Locke’s “true church” to today’s voluntary association. In the account that follows, I claim no direct causal link between the former and latter transformations. But I do suggest that (i) the movement from strong group realism to group-agency elimination runs parallel with (ii) a gradual secularization of the concept of the Church herself. As we shall see, this conclusion has bearing on our recovery of the Church’s strong group agency for purposes of legal rights ascription.

6.2.1 The Medieval Corpus Mysticum In his classic text, The King’s Two Bodies, historian Ernst Kantorowicz details the extent to which the term corpus mysticum, which originally applied to the Church, influenced late medieval and early modern understandings of the political commonwealth or state. Drawing largely upon de Lubac’s interpretation of theological sources, Kantorowicz finds that the original sacramental meaning of the term was replaced by a formally corporational understanding. This allowed the term corpus mysticum— now secularized, but still having residual spiritual connotations—to be applied to the state itself, thus helping to legitimize the burgeoning power and independence of medieval civil authority.25 Let us review Kantorowicz’s historical narrative and subsequently analyze it through a group-realist lens. We begin in media res with a corporational, or sociological, understanding of the Church prevalent in the High Middle Ages. According to Kantorowicz, a corporational doctrine of the Catholic Church was officially promulgated in the papal bull Unam sanctam (1302), wherein Pope Boniface VIII writes: 24 Group-agency

elimination is first discussed in Sect. 3.1 above. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1957), 193–206.

25 Ernst

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Urged by faith we are bound to believe in one holy Church, Catholic and also Apostolic … without which there is neither salvation nor remission of sins … which represents one mystical body, the head of which is Christ, and the head of Christ is God.26

Far from abstract speculation, both Boniface’s statement and Unam sanctam in general can be read as a direct response to political opponents of papal authority. To justify ecclesial (and especially papal) prerogative, Boniface sought to relativize the power of political figures by embedding them within the social community of the corpus mysticum Christi (the Church), of which the visible head is no king, but rather Christ’s representative on earth (the Roman pontiff ). According to Kantorowicz, Boniface’s preferred term (the corpus mysticum Christi) was relatively new in the 1300 s, being used primarily, if not exclusively, in the context of church-state disputes (as evinced in Unam sanctam above). Of much more ancient lineage was the term corpus Christi, which, like corpus mysticum Christi, also applied to the Church. Its roots however are much deeper than that of the mysticum variation; they are traceable to Saint Paul himself.27 In light of this fact, two related questions immediately arise: First, where did the qualifying word mysticum (in corpus mysticum Christi) come from? Second, why did corpus mysticum Christi replace the more ancient term corpus Christi in high medieval descriptions of the Church? To answer these questions, Kantorowicz looks to de Lubac’s examination of patristic sources. Following de Lubac, Kantorowicz notes that the term mysticum in its original usage signified the sacramental body of Christ (the Eucharist) and was often used in contradistinction to Christ’s “proper and true” (proprium et verum) body, that is, his actual physical body.28 On this point, de Lubac quotes the Carolingian theologian Paschasius Radbertus (b. 786), whose Liber de corpore et sanguine domini is useful for us to consider. Paschasius writes:

26 Pope

Boniface VIII, Unam sanctam (1302), quoted in Kantorowicz, The King’s Two Bodies, 194, n. 4. 27 Kantorowicz, 194–95. 28 Kantorowicz, 195.

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Because assuredly the universal Church of Christ is his body, where Christ is the head, and all the elect are called members, from whom one body is assembled daily to form the perfect man … , from this (body) whoever removes a member of Christ and makes it the member of a prostitute … is assuredly no longer in the body of Christ … Therefore he has no right to eat of this mystical body of Christ, the body which, in order to be the true flesh of Christ, is consecrated daily through the Holy Spirit for the life of the world … They feed on it worthily, who are in his body, with the result that only the body of Christ [the Church], while it is on pilgrimage, is nourished by his flesh.29

De Lubac notes that contemporaries of Paschasius agreed with the distinction between the physical body of Christ, “containing nothing either mystical or figurative,” and the mystical body of the Eucharist, “created by the oil of sacred prayer … through the ministry of priests.”30 But, as Kantorowicz observes, this distinction collapsed by the twelfth and thirteenth centuries when, in response to heresies that over spiritualized the Eucharist, Church authorities felt compelled to emphasize the real or physical presence of Christ within the sacrament. A major change in theological terminology thus ensued: Corpus Christi came to be applied to the sacramental species (thus bringing together the sacramental and physical); and corpus mysticum was transferred from the Eucharist to instead describe the body of the Church. “It was in [this] relatively new sociological sense,” writes Kantorowicz, “that Boniface VIII defined the Church as ‘one mystical body [the corpus mysticum Christi] the head of which is Christ.’”31 So we see that mysticum had been exclusively sacramental in meaning and later was appropriated into a corporational understanding of the Church, according to which authoritative or broadly institutional roles 29 Paschasius,

“Liber de corpore et sanguine domini,” in Patrologia latina cursus completus, ed. J.P. Migne (Paris: Garnier, 1844–1864), 120, 1284–86, quoted in De Lubac, Corpus Mysticum, 30 (italics in original). 30 Ratramnus, “De corpore et sanguine domini,” in Patrologia latina cursus completus, ed. J.P. Migne (Paris: Garnier, 1844–1864), 121, 167A, quoted in De Lubac, 31, nn. 102–3; and Rabanus Maurus, “De clericorum institutione,” in Patrologia latina cursus completus, 107, 324, quoted in De Lubac, 31, n. 104. 31 Kantorowicz, The King’s Two Bodies, 196 (italics in original).

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were emphasized for political purposes. Noting this move from the sacramental to the institutional (or sociological), let us conclude with Kantorowicz that the term mysticum of corpus mysticum Christi was subject to secularization, at least from the time of the Carolingians to the years of Boniface VIII’s pontificate. Before drawing connections between this period of secularization and the idea of the Church’s group agency, let us consider how Aquinas features in Kantorowicz’s narrative. According to Kantorowicz, it was John of Salisbury who, in his Policraticus (1159), famously deployed Pauline imagery to compare the medieval political commonweal to the human body; and his contemporary, Isaac of Stella, utilized Saint Paul to describe the institutional Church—portraying Christ as the head, and various ranks of clerical office as limbs. This “administrative organism” became the standard image of the medieval Church and even Aquinas, Kantorowicz argues, adopted this predominantly juristic and sociological representation.32 To support this latter position, Kantorowicz points to a peculiar phrase Aquinas deployed in describing the Church: corpus Ecclesiae mysticum (the mystical body of the Church).33 This phrase is theologically significant because, in contrast to corpus Christi mysticum, it seems to suggest that the Church herself has a body, one distinct from the body of Christ. The phrase corpus Ecclesiae mysticum therefore moves the Church further away from the earlier patristic or Carolingian paradigm (which maintains an inextricable link between corpus verum, mysticum, and Christi) that de Lubac favors.34 De Lubac, however, concludes that Aquinas’s choice of terminology, though indicative of an “advanced evolution,” does not mark Aquinas as completely removed from the Carolingian and Eucharistic tradition. (Indeed, Aquinas employs the term in close proximity to discussion of the Church’s sacraments.35 ) Nevertheless, Kantorowicz suggests a more

32 Kantorowicz,

199–201. Aquinas, Summa theologiae III q. 8, aa. 3–4. Henceforth, I reference the English Dominicans’ translation, using book, question, and article enumeration. See Summa theologiae, ed. Fathers of the English Dominican Province, 61 vols. (London: Blackfriars, 1964–1980). 34 Kantorowicz, The King’s Two Bodies, 201; De Lubac, Corpus Mysticum, 113. 35 De Lubac, 113. See also ST III q. 8, a. 3, ad. 3. 33Thomas

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radical, alternative position. He sees a decidedly juristic and secularized conception of the Church in Aquinas’s chosen term. Kantorowicz writes: Hitherto it had been the custom to talk about the Church as the “mystical body of Christ” (corpus Christi mysticum) which sacramentally alone makes sense. Now, however, the Church, which had been the mystical body of Christ, became a mystical body in its own right … The change in terminology was not haphazardly introduced. It signified just another step in the direction of allowing the clerical corporational institution of the corpus ecclesiae iuridicum to coincide with the corpus ecclesiae mysticum and thereby to “secularize” the notion of “mystical body.” In that development Aquinas himself holds a key position.36

While I agree with de Lubac that Aquinas did not intend the corpus Ecclesiae mysticum to be an essentially juristic concept, Kantorowicz’s underlying point remains sound: The corpus mysticum, once sacramental in its central meaning, became “less and less mystical as time passed on”; and, whatever Aquinas’s contribution, it eventually “came to mean simply the Church as a body politic or, by transference, any body politic of the secular world.”37 So much for Kantorowicz’s narrative. We now must consider what connections we might draw from the secularization just observed and the strong group realism outlined above (see Sect. 6.1). Two brief points will suffice. First, assuming that the Carolingian interpretation of the Church meets the animation requirement, we could say that early medieval usage of the term corpus mysticum espoused a form of strong group realism. On this construction, Christ in the Eucharist accounts for the agency of the Church. Second, insofar as a sacramental or specifically Eucharistic explanation accounts for the Church’s agency, we can reasonably conclude that a desacralized conception of corpus mysticum rejects any strong grouprealist connotations. Hence, corpus mysticum, understood specifically as a juridical or sociological term, describes modest group agency at best. This 36 Kantorowicz, 37 Kantorowicz,

The King’s Two Bodies, 201 (italics in original). 206.

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inference supports the interpretation of Aquinas’s group realism offered thus far. Adapting Gilby’s commentary, we might say that on Aquinas’s model “the rhetoric [of strong group realism] may be more genial, [but] the logic is no less invalid.”38 Perhaps, then, it is not entirely inappropriate to attribute a certain group-agency reduction (a movement from strong to modest group realism) to Aquinas. The ending point of that transformation certainly fits within the paradigm of group agency that we attribute to him (see Sect. 4.1.2 especially). Leaving behind the medieval, we turn now to a more recent transformation of the Church: the contemporary shift from John Locke’s “true church” to today’s voluntary association.

6.2.2 Locke’s “True Church” When we look to John Locke’s description of Christianity or the Church, we find neither theological hints toward strong group realism nor consideration of Christ’s coordinative activity as head of the spiritual body, the Church. For example, The Reasonableness of Christianity (1695), Locke’s scripturally grounded re-articulation of the Faith, does not cite any of the standard Biblical verses relating to the unity of the Church (Rom. 12:3-8; 1 Cor. 12:12-30; Col. 2:11-13, 3:15) or Christ’s headship of a spiritual body (Col. 1:18, 2:10, 19; Eph. 1:22, 4:15, 5:23).39 This omission is telling, further solidifying Locke’s reputation as the “first great liberal philosopher” and a (if not the) progenitor of the modern emphasis upon individual rights as set against corporate absolutisms, whether religious or secular.40 My examination of Locke, therefore, does not focus upon a group-ontological reductionism of the sort discerned in medieval political theology—Locke seems to have taken this reduction for granted.

38 Gilby,

Principality and Polity, 256. John Locke, The Reasonableness of Christianity: As Delivered in the Scriptures, ed. John C. Higgins-Biddle (Oxford: Oxford University Press, 1999), app. 2. 40 Maurice Cranston, introduction to Locke on Politics, Religion, and Education, by John Locke, ed. Maurice Cranston (London: Collier-Macmillan, 1965), 7. 39 See

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Instead, I draw attention to defining characteristics of Locke’s “voluntary society of men,” the “true church”41 ; and I note how its minimal theological ground gives way to today’s secular conception of voluntary association wherein the individual is normatively paramount. At bottom, the transformation of the Church noted here is one of religious to secular individualism. Locke’s oft quoted definition of the church (not “the Church”) is found in A Letter Concerning Toleration (1683–1689). It reads: A church then I take to be a voluntary society of men, joining themselves together of their own accord, in order to the public worshipping of God, in such a manner as they may judge acceptable to him, and effectual to the salvation of their souls.42

As indicated in Locke’s definition, there are two characteristics central to a church or religious society: salvation as the members’ primary end, and voluntary membership. A third characteristic is made plain at the beginning of the Letter (“I esteem that toleration to be the chief characteristical mark of the true church”) and this entails a peaceable, tolerant morality toward religious others, whether Christian or not.43 Despite overly secularized interpretations of Locke’s understanding of religion,44 Locke’s description of churches themselves involves no complete abandonment of Christian doctrine. For Locke, the salvific message and public worship of churches should be of a Christian, scripturally based variety. But a brief examination of Locke’s three marks of the “true church” allows us to see how easily a caesura between the first and second characteristics (Christian salvation and voluntary membership) gives way to today’s secularized “religious” association. The first mark of Locke’s church pertains to salvation, but we may also refer to this characteristic as entailing a minimal Christian theology. At the core of Locke’s theology is a belief that one should attend to 41 John

Locke, “A Letter Concerning Toleration,” 110–11.

42 Ibid. 43 Locke,

104–5. example, see J. Judd Owen, Making Religion Safe for Democracy: Transformation from Hobbes to Tocqueville (Cambridge: Cambridge University Press, 2015), 109–12.

44 For

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his own salvation, recognizing this as “the highest obligation that lies upon mankind.”45 Locke, however, is insistent that care for one’s own soul “belongs only to himself,” and Locke condemns all efforts to force others into religious truth: “Any one may employ as many exhortations and arguments as he pleases, towards the promoting of another man’s salvation. But all force and compulsion are to be forborn. Nothing is to be done imperiously.” Nevertheless, Locke is not agnostic to the content of true doctrine—that is, to the “believing and doing those things in this life, which are necessary to the obtaining of God’s favour, and are prescribed by God to that end.”46 For Locke, such “believing and doing” aligns with a minimal (and Protestant) Christianity, grounded in the biblical texts. He writes: But since men are so solicitous about the true church, I would only ask them here by the way, if it be not more agreeable to the church of Christ, to make the conditions of her communion consists in such things, and such things only, as the Holy Spirit has in the Holy Scriptures declared, in express words, to be necessary to salvation? I ask, I say, whether this be not more agreeable to the church of Christ, than for men to impose their own inventions and interpretations upon others, as if they were of divine authority; and to establish by ecclesiastical laws, as absolutely necessary to the profession of Christianity, such things as the Holy Scriptures do either no mention, or at least not expressly command?47

While we might attribute the Protestant character of Locke’s theology to his political leanings (during the Glorious Revolution, Locke described King William as a great “restorer”48 ), we must also look to Locke’s epistemology or philosophy of religion to appreciate the minimal creed that he professed. In this area, commentators like Nicholas Wolterstorff provide sophisticated analyses of Locke’s An Essay Concerning Human Understanding (1689), wherein natural theology (Wolterstorff notes) plays a prominent 45 Locke,

“A Letter Concerning Toleration,” 134. 135. 47 Locke, 112 (italics mine). 48 Cranston, introduction to Locke on Politics, Religion, and Education, 13. 46 Locke,

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role for Locke in knowing God’s existence, power, and all-encompassing knowledge.49 Apart from what reason alone can know of God, revelation too provides a certain knowledge of the divine. “Whatever GOD hath revealed, is certainly true,” Locke writes, “no Doubt can be made of it.”50 Such is the domain of faith. Also in the Essay, we see that Locke’s argument in defense of faith leads him to conclude that “whatsoever is divine Revelation, ought to over-rule all our Opinions, Prejudices, and Interests, and hath a right to be received with full Assent.”51 In the end, however, Locke subjects virtually all revelation to the regulation of reason. For Locke, says Wolterstorff, “Reason overcomes faith.”52 It is therefore only a minimal revelation that Locke accepts as true and regulative of one’s life. This is the revelation—emphasized at the beginning of the Reasonableness of Christianity—that Christ is the messiah, that “we are restored to by Jesus Christ.”53 Following from this, as J. Judd Owen notes, Locke proceeds to abide by Thomas Hobbes’s maxim “to stick to those parts of Scripture whose ‘sense is most plain and agreeable to the harmony and scope of the whole Bible’”54 ; further to this, we might also add a maxim “to stick to” reason itself. Hence, according to Wolterstorff, “Locke’s project … was not to show that it was probable on satisfactory evidence that the New Testament records revelation from God, but to show that a great deal of the content of revelation there recorded can be arrived at by reason.”55

49 Nicholas

Wolterstorff, “Locke’s Philosophy of Religion,” in The Cambridge Companion to Locke, ed. Vere Chappell (Cambridge: Cambridge University Press, 1994), 187–88. 50 John Locke, An Essay Concerning Human Understanding, ed. Peter H. Nidditch (Oxford: Oxford University Press, 1975), 695, bk. IV, chap. xviii, line 10. See discussion in Wolterstorff, “Locke’s Philosophy of Religion,” 191. 51 Locke, An Essay Concerning Human Understanding, 695, bk. IV, chap. xviii, line 10 (italics in the original). 52 Wolterstorff, “Locke’s Philosophy of Religion,” 190. 53 Locke, Reasonableness, 5, bk. I, lines 7–8. 54 Owen, Making Religion Safe for Democracy, 85, quoting Thomas Hobbes, Leviathan, trans. Richard Tuck (Cambridge: Cambridge University Press, 1996), 414–15, chap. 43, sec. 331. 55 Wolterstorff, “Locke’s Philosophy of Religion,” 192 (italics in original).

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Commentators note that Locke’s navigation between faith and reason is convoluted or weak.56 Yet, regardless of its details, we can already appreciate how Locke’s philosophy of religion provides the basic shape of his minimally doctrinal theology. As a final note on this matter, we highlight that Locke’s assertion of (what he thought to be) fundamental tenets of Christianity leads him to disavow claims of doctrinal orthodoxy made by any Christian church concerning (what he thought to be) inessential matters. In the Letter, he writes: For every church is orthodox to itself; to others, erroneous or heretical. Whatsoever any church believes, it believes to be true; and the contrary thereunto, it pronounces to be error. So that the controversy between these churches about the truth of their doctrines, and the purity of their worship, is on both sides equal; nor is there any judge, … elsewhere upon earth, by whose sentence it can be determined. The decision of that question belongs only to the Supreme Judge of all men, to whom also alone belongs the punishment of the erroneous.57

What Locke affirms here anticipates our discussion of the third and most “characteristical mark of the true church”—namely, toleration. As is suggested in the excerpt above, Locke’s argument for religious toleration moves beyond a mere exhortation to do no harm. Instead, it is grounded in man’s ignorance of religious things. As John Higgins-Biddle puts it: “Locke’s defence of toleration … rest[s] heavily upon his argument that, since no one has infallible knowledge in the realm of religion, no one has the right to impose his religious opinions on others as though they were divine requirements.”58 This position, of course, has bearing upon one’s understanding of what churches are. Indeed, with all men lacking infallible knowledge of religion, perhaps no orthodox churches exist.59

56 For

example, see Owen, Making Religion Safe for Democracy, 84–85; Wolterstorff, “Locke’s Philosophy of Religion,” 190. For a more sympathetic interpretation, see John C. HigginsBiddle, introduction to The Reasonableness of Christianity: As Delivered in the Scriptures, by John Locke, ed. John C. Higgins-Biddle (Oxford: Oxford University Press, 1999), cxi. 57 Locke, “A Letter Concerning Toleration,” 115–16. 58 Higgins-Biddle, introduction to The Reasonableness of Christianity, cxiii. 59 Owen, Making Religion Safe for Democracy, 65.

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Before discussing toleration in more depth, let us turn briefly to the second aspect of Locke’s “true church”: voluntary membership. It is here where a Lockean individualism comes most to the fore. Coupled with his minimal theology, voluntary membership (or voluntarism) assures that individuals can worship “in such a manner as they may judge acceptable to [God].”60 Assuming adherence to doctrinal essentials, individuals themselves should join and leave religious societies as they see fit. “The hope of salvation,” Locke writes, as it was the only cause of [a man’s] entrance into that communion, so it can be the only reason of his stay there. For if afterwards he discover anything either erroneous in the doctrine, or incongruous in the worship of that society to which he has joined himself, why should it not be as free for him to go out as it was to enter?61

Yet, likewise, churches as voluntary need not retain “heretics” within their ranks on Locke’s account: “I hold, that no church is bound by the duty of Toleration to retain any such person in her bosom, as after admonition continues obstinately to offend against the laws of the society.”62 Were this condition not to hold, then the obstinately heterodox individual would be able to impose beliefs upon the religious society, thereby violating individuals’ dignity and rights63 and transgressing “the duty of Toleration.” It follows that, for Locke, voluntarism is both an individual and group privilege. However, the group privilege itself is only morally intelligible with respect to the individual ’s obligation to obtain favor from God.64 The obligation to attend to one’s salvation, of course, must be executed in accordance with the toleration characteristic of the “true church.” This third and “chief characteristical mark,” we noted, follows from Locke’s philosophy of religion or, as Higgins-Biddle might frame it, his argument 60 Locke,

“A Letter Concerning Toleration,” 110–11 (italics mine). 111. 62 Locke, 114. 63 For an account of Locke’s theological reflections upon individual dignity and equality, see Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke’s Political Thought (Cambridge: Cambridge University Press, 2002), chap. 8. 64 Locke, “A Letter Concerning Toleration,” 135. 61 Locke,

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of religious ignorance.65 But what, we ask, does tolerance actually entail for Locke? To begin, we can look to the full excerpt in the Letter where Locke speaks of this chief characteristic: I esteem that toleration to be the chief characteristical mark of the true church. For whatsoever some people boast of the antiquity of places and names, or of the pomp of their outward worship; others, of the reformation of their discipline … Let any one have ever so true a claim to all these things, yet if he be destitute of charity, meekness, and good will in general towards all mankind , even to those that are not Christians, he is certainly yet short of being a true Christian himself. “The kings of the Gentiles exercise lordship over them,” said our Savior to his disciples, “but ye shall not be so” (Luke xxii).66

A series of virtues—“charity, meekness, and good will in general”— comprise Christian tolerance; and, indeed, a scriptural mandate exists to elevate these virtues onto a theological plane. Further to this, the Essay speaks of the need for “Peace … and Friendship, in the diversity of Opinions” to follow from recognition of man’s fallible (religious) knowledge.67 We might here speak of certain fruits of the Spirit (Galatians 5) flowing from Locke’s tolerant Christianity. Apart from these seemingly abstract virtues and benefits, Lockean tolerance applies concretely to the everyday person, the “laboring and illiterate Man,”68 and it is aimed to no insignificant degree toward human well-being in the here and now.69 The Letter especially supports this worldly interpretation. Consider the following passage: No private person has any right, in any manner to prejudice another person in his civil enjoyments, because he is of another church or religion. 65 Higgins-Biddle,

introduction to The Reasonableness of Christianity, cxiii. Locke refers to human ignorance with regard to various truths in An Essay Concerning Human Understanding, 659, bk. IV, chap. xvi, line 4. 66 Locke, “A Letter Concerning Toleration,” 104–5 (italics mine). 67 Locke, An Essay Concerning Human Understanding, 659, bk. IV, chap. xvi, line 4 (original italics removed). 68 Locke, Reasonableness, 169, bk. XV, line 302. 69 See Owen, Making Religion Safe for Democracy, 108–12.

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All the rights and franchises that belong to him as a man, … are inviolably to be preserved to him. These are not the business of religion. No violence nor injury is to be offered him, whether he be Christian or pagan .… If any man err from the right way, it is his own misfortune, no injury to thee: nor therefore art thou to punish him in the things of this life, because thou supposest he will be miserable in that which is to come.70

Commenting on Locke’s emphasis upon the mundane or worldly, Owen writes: “The mundane goods of this world and not the sublime goods of the next, to say nothing of natural philosophy, are [in Locke’s opinion] man’s naturally greatest concerns.”71 And, as Higgins-Biddle notes, “the simple requirements of faith and obedience would, Locke hoped, bring … peace, stability, and security to England and Christendom.”72 Further still, Jeremy Waldron argues that Locke’s Christian toleration, and religious argumentation in general, remains “indispensable” for contemporary (and earthly) public life.73 In sum: Lockean tolerance, the “chief characteristical mark of the true church,”74 entails a worldly emphasis—a soteriological end notwithstanding. Without doubt, the image that emerges of Locke’s “true church” is distinctly Christian. But insofar as this church is built upon a minimal theology, reliant upon a weak evidentialism, and constructed primarily to foster personal choice as well as toleration and public peace, its eventual secularization in the centuries after Locke should come as no surprise. One simply needs to detach or further reduce its minimal Christian theology; the resulting caesura marks the church’s voluntary membership and tolerant morality as the only intelligible, or worthwhile, characteristics left. Hence, contemporary appropriations of, or references to, Locke’s church are noticeably secular and are articulated solely in terms of its

70 Locke,

“A Letter Concerning Toleration,” 114–15 (italics mine). Making Religion Safe for Democracy, 110. 72 Higgins-Biddle, introduction to The Reasonableness of Christianity, cxiv. 73 Waldron, God, Locke, and Equality, 237–43. 74 Locke, “A Letter Concerning Toleration,” 104–5. 71 Owen,

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voluntary membership, understood as a necessary condition for a political liberal freedom of association.75 Furthermore, inasmuch as freedom of association gains its normative currency from the rights or integrity of individual citizens, Locke’s church does not need to be postulated as a group agent of any sort76 ; its possible group agency is overlooked or denied by political liberalism’s emphasis upon the individual. By default, it seems, the political liberal church—Locke’s “true church”—is no group agent at all. Far from remaining agnostic toward issues of group ontology, present-day adherents of Locke’s church inevitably preach the good news of group-agency elimination.

6.2.3 Recovering Strong Group Realism for Rights Ascription Thus far, this section has highlighted two historical episodes in the gradual reduction of the Church—from Christ’s mystical body (a strong group agent) to a voluntary association (with no reference to group ontology). Following Kantorowicz and de Lubac, we first saw a Eucharistic form of strong group realism give way (through various permutations of the term corpus mysticum) to a secularized and administrative conception of the Church, one most compatible with modest group realism’s coordinative framework. Afterward, we saw that John Locke’s “true church” is described today not with reference to the unity and coordination typical of modest group realism, but to the voluntarism prescribed by “tolerant Christianity” and, later, contemporary political liberalism. In this second transformation, group realism already was presumed dead and a secularization of Locke’s church put the final nail in the coffin. We now can answer directly the two queries posed at the beginning of this section. First, we asked why the Church is not commonly described in terms of strong group realism today. As the above narrative suggests, widespread acceptance of a secularized version of Locke’s true church 75 See

Schragger and Schwartzman, “Against Religious Institutionalism,” 957–59; Cécile Laborde, Liberalism’s Religion (London: Harvard University Press, 2017), 174. 76 See Laborde, 172–74.

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accounts for the contemporary situation. Undoubtedly, there are some for whom the idea of the Church’s strong group agency may indeed be common (e.g., certain Roman Catholics: see Sect. 6.1); but, in the contemporary American context at least, a secularized Lockean paradigm reigns as the default legal position, thus serving as a legal-normative standard against which individual rights are secured and group-ontological speculation is deemed irrelevant or dangerous for the assignment of legal rights (see Sect. 3.3). This political liberal context challenges strong group realism and its integration with a theory of corporate religious liberty. Hence, to this section’s second query, we (i) recognize the difficulties associated with strong group-realist defenses of church rights and, in turn, (ii) affirm the need to respond carefully. Such care, I contend, can meet political liberal expectations concerning group-agency skepticism, voluntarism, and secularization. But it should do so only in part. Careful Christian ethical engagement should not accept political liberal positions uncritically. Rather, it should challenge basic normative and descriptive assumptions within the prevailing liberal consensus (e.g., a reductionist view of the Church or a conflation of for-profit firms with houses of worship: see Sect. 5.2). In doing so, Christian engagement can protect houses of worship, as well as religious practices informed by the Church’s strong group agency, both sufficiently and appropriately. In the following section, I outline a possible way in which Christian engagement might achieve these aims.

6.3

The Standard Argument

Recall the “standard argument” that legal scholars Richard Schragger and Micah Schwartzman attribute to religious institutionalists (see Sect. 3.3). The argument holds that: (1) (2) (3) (4)

Some groups are agents. Some group agents are rational. Rational agents are moral persons. Moral persons have moral rights.

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Legal rights protect moral rights. Therefore, some groups are moral persons (by 2 and 3). Therefore, some groups have moral rights (by 4 and 6). Therefore, legal rights protect some groups’ moral rights (5 and 7).77

In this section, I revisit the standard argument; however, I no longer adopt Schragger and Schwartzman’s skepticism towards it. Instead, I demonstrate how we might accept the standard argument, inclusive of an associated belief in the Church’s strong group agency, for purposes of legal rights ascription. In particular, I show how we might integrate the standard argument within my proposed theory of corporate religious liberty, thus accounting for an ecclesial strong group realism within a framework that specifically protects modest group agents. Towards this end, I first build upon the ecclesiological reflections from earlier sections to consider explicitly the Church’s (moral) personality. Doing so helps align the idea of the Church’s strong group agency with the standard argument as presented by Schragger and Schwartzman. Afterward, I consider whether the standard argument should inform legal rights ascription and, if so, how it could be integrated in actual fact—that is, within my approach to corporate religious liberty.

6.3.1 The Supernatural Personality of the Church Our first task is to determine in what way the Church is a “person” and thereby comfortably fits within the standard argument’s logic. For our purposes, I consider legal constructions of “person” or “personhood” to be irrelevant, since Schragger and Schwartzman focus on ontological and non-juristic accounts of personhood in their discussion.78 I therefore focus upon metaphysical constructions to see how the Church fares. On this front, we immediately encounter a theoretical difficulty. Consider de Lubac’s Eucharistic conceptualization of the Church: De 77 Richard Schragger and Micah Schwartzman, “Some Realism about Corporate Rights,” in The Rise of Corporate Religious Liberty, ed. Micah Schwartzman, Chad Flanders, and Zöe Robinson (Oxford: Oxford University Press, 2016), 352, n. 32. 78 Schragger and Schwartzman, 349–50.

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Lubac implicitly identifies the active agency of the Church through her (non-metaphorical) calling-together of the faithful into a Eucharistic community (see Sect. 6.1.3). De Lubac, however, is quick to note that this agency is not indicative of a “transcendent hypostasis” or “external organism.”79 This suggests that the Church is not a persona in a substantially metaphysical sense. But if this is so, then the Church cannot fit within the standard argument, and our present query concerning the integration of strong group realism ceases before it begins. As construed, this difficulty assumes a particular Aristotelian or Thomistic understanding of persona, such as the one found in Question 16 of the Tertia pars: “a person is nothing else than an individual substance of rational nature,” or “a person signifies something complete and self-subsisting in rational nature.”80 But we can avoid the above difficulty if we accept that the Church is a persona in a different, yet still metaphysical and non-metaphorical, sense. Two modern theologians, Jacques Maritain and his former spiritual advisor Humbert Clérissac O.P., are here useful. Both describe the Church’s personality in super natural terms—that is, in terms that build upon the “natural” or metaphysical aspects of the Thomistic persona. This allows Maritain and Clérissac to emphasize the continuity between the Church as a supernatural person and the human being as a natural person (i.e., as a self-subsisting, rational individual). The differences they note constitute what is super natural in the group-persona described. Clérissac recognizes that a (Thomistic) persona is a self-subsisting, substantial whole. The Church as supernatural meets, and goes beyond, this requirement by overcoming its composition of parts. Clérissac writes: Although the Church is composed of these elements that are so divine— Humanity, Christ and the Holy Ghost—and although from their union there can only result, philosophically speaking, an accidental or imperfectly substantial whole, nevertheless the bond which unites them, being a divine Person, confers upon their conjunction a unity, a stability, a

79 De 80 ST

Lubac, Catholicism, 21. III q. 16, a. 12, obj. 2 (Boethius) and ad. 3 (Aquinas).

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rational and intelligent autonomy of a superior kind, which merits in a superior way, under a certain aspect, the name of personality. Or we should say rather that this personality is absolutely new and that the Church is its sole realization.81

The work of the divine persons, especially of Christ and the Holy Spirit, account for the sui generis unity of the Church and thus contribute to its supernatural personality. Clérissac continues by claiming that this unity persists over time immemorial and integrates in the Church “all the varieties of human individuals … [in] an ever increasing number.” For Clérissac, this is but one obvious way in which the Church surpasses the limits of a human group, to which we attribute a metaphorical “moral personality.”82 Continuing his exposition of the Church along Aquinas’s definition of persona, Clérissac then notes how the Church surpasses natural persons with regard to the rational faculties. Of particular focus for Clérissac are memory and conscience. With regard to the former, the Church surpasses all natural capacity: “Since that time when our Lord … gave to His Church the definitive deposit of the Truth, even since then, the memory of the Church has not ceased to stand out as prodigious.”83 And to the latter, Clérissac affirms that the Church’s conscience is “no less superhuman.” Concerned as it is with morality, the conscience of the Church enjoys a certitude that is discerned in gradations and that is graduated in strength (never relaxed) throughout history. Martyrdom witnesses to this certitude: “If an attempt is made to force the Church … to disavow Her divine Certitude, then the Church accepts or commands martyrdom in order to affirm it all the more … [M]artyrdom thus become[s] the most distinctive sign of the invincible personality of the Church.”84

81 Humbert

Clérissac O.P., The Mystery of the Church (London: Sheed and Ward, 1937), 35 (cf. the “bond” of human members’ intentions, as understood within modest group realism: see Sect. 4.2 above). 82 Clérissac, 35. 83 Clérissac, 36–37. 84 Clérissac, 38–39.

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Writing close to four decades after Clérissac, and not long after the Second Vatican Council, Maritain reiterates the distinctive and metaphysical manner in which the Church is truly a person. In his work On the Church of Christ, Maritain notes: The Church, while subsisting naturally with the subsistence of her innumerable individual members, possesses herself, supernaturally, insofar as she is the whole—one and universal—of this multitude, a personality, truly and ontologically and not in a wholly analogical sense, in the fashion of that which the jurists call “collective persons” or “moral persons.” She is herself a person in the proper and primary sense of the word, a person who renders a worship to God, who proposes to us the truths revealed by Him, who sanctifies us by her sacraments, who speaks, who teaches, who acts.85

Towards the end of this excerpt, Maritain seems to play fast and loose with the definition of “person,” as if the Thomistic definition to which he had tacitly alluded is understood in its “proper and primary sense” to entail worship, speech, and sacramental action. These capacities may pertain uniquely to the Church as persona, but they certainly do not constitute the formal definition or the “proper and primary sense” of the term.86 Nevertheless, the most important point to take from the above is this: that Maritain, like Clérissac, points to the super natural personality of the Church by viewing it in light of, and “not in a wholly analogical sense” to, the standard metaphysical definition. The comparison Maritain makes between natural and supernatural persons is perhaps most successful in the following passage, where Maritain deploys a useful theological distinction to understand the unique personality of the Church. He writes: No community of the merely natural order can be a person at the same time as a multitude of human beings. A nation subsists with the

85 Jacques Maritain, On the Church of Christ: The Person of the Church and Her Personnel , trans. Joseph W. Evans (London: University of Notre Dame Press, 1973), 18–19. 86 See the definitions provided in ST III q. 16, a. 12, obj. 2 and ad. 3.

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subsistence of all its individual citizens; it has a history, it has typical characteristics, common customs, it pursues a common end and has common interests: this history, these typical characteristics, these customs, this common end, these common interests are purely and simply those of its citizens, or of the great mass of them. And it has no divine mission, nor any promise of lasting always and of being constantly assisted by God. It is altogether different with the Church. The Church has a double subsistence: a natural subsistence like every human community,—[sic ] that of the human persons who are her members: if all Christians were exterminated there would no longer be a Church here on earth. And she has, insofar precisely as she is the whole, one and universal, of the organized multitude of those who live with her life, a supernatural subsistence, which presupposes but transcends the natural subsistence of the individual persons who are her members.87

Maritain’s “double subsistence” captures well the uniqueness of the Church’s unity, demonstrating how analogical thought can result in the reasonable conclusion that the Church’s personality—while similar to that of natural persons—is of a different order. That this order is deemed supernatural is an apt choice of term; it evokes the super-substantial bread written of in the Vulgate’s translation of the Lord’s Prayer (Matthew 6:11)—the panem nostrum supersubstantialem.88 We therefore return to de Lubac’s sacramental account of the Church, wherein the supernatural or mystical Body is seen to call together and constitute a Eucharistic community. Through analogy, we can say that this agent, who transcends the natural subsistence of her members and incorporates them into Christ’s body, is a persona supernaturalis.

6.3.2 Integrating the Standard Argument Let us assume that the Church thus understood is a belief held by some Christians in fact, and that these Christians seek legal protection in part

87 Maritain, 88 “Give

On the Church of Christ, 18 (original italics removed) (italics mine). us this day our supersubstantial bread.” Matthew 6:11 (Douay-Rheims Version).

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through strong group-realist claims.89 As the above analysis suggests, it is now possible to advance these legal protections by means of the standard argument. This is so because the Church (now understood as a supernatural person) is an appropriate metaphysical subject for the standard-argument framework. I now ask (i) whether the standard argument (inclusive of the strong group realism attendant to the Church’s supernatural personality) should be integrated into my proposed theory of corporate religious liberty and, if so, (ii) how it could be integrated in fact. With respect to the first question, it would seem that the standard argument should not be accepted into any theory or regime of corporate religious liberty. The long history of secularization and group-agency elimination—that is, the long history of church-state disputes—appears to advise against it.90 Locke, in particular, would object on epistemological grounds to the sacramental strong group agency attributed to the Church. Consider the following excerpt, where Locke criticizes the Roman Catholic doctrine of transubstantiation. He argues that: The reality and essence of bread being in respect of us nothing but a collection of several simple ideas, which makes us know it, distinguish it from flesh, and call it bread, it is as impossible for a man, where he finds that complex idea, to know it to be flesh or receive it for such, as it is to believe himself a loaf.91

Locke’s biting criticism is, of course, tied to his understanding of the basic requirements of salvation as made plain in scripture. Analogic reasoning of the sort evinced by Maritain (and Aquinas before him) does not meet Locke’s evidentialist demands relating to reason and, by extension, faith. Hence, it is reasonable to conclude that Locke would reject a 89 See

John Garvey, What Are Freedoms For? (Cambridge, MA: Harvard University Press, 1996), 146–47 (defending church autonomy with strong group-realist argumentation). 90 See Sect. 6.2 above. For further discussion, see Brad S. Gregory, The Unintended Reformation: How a Religious Revolution Secularized Society (Cambridge, MA: Belknap Press of Harvard University Press, 2012). 91 John Locke, “Journal Entries for 26–27 Aug. 1676,” in Essays on the Law of Nature, ed. W. von Leyden (London: Oxford Clarendon Press, 1954), 278, quoted in Higgins-Biddle, introduction to The Reasonableness of Christianity, cxi–cxii.

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supernatural subsistence of the Church, just as he eschews Eucharistic transubstantiation. Furthermore, we could infer that, for Locke, the supernatural personality and strong group agency of the Church is an epistemologically invalid and morally reckless position; it would be tantamount to asserting infallible knowledge and rejecting the ignorancebased toleration required of Lockean Christianity. As some might put it, appeal to the Church’s supernatural personality could be used as a trump card in legal discussion and thus lead to group domination and an abuse of vulnerable third parties.92 No wonder contemporary political liberals, secular adherents of Locke’s “true church,” eschew this metaphysical position and the standard argument that embraces it. The moral lessons of history, especially those involving religious and secular group domination, are to be taken seriously. But an eschewal of the standard argument in religious liberty contexts need not be involved. For one, there are good theological and normative reasons to keep it. As previously discussed, churches on a modest group-realist account gain normative importance insofar as they promote distinct moral values like the right worship of God (see Sect. 5.2). The supernatural personality or agency of the Church (which is made manifest in concrete visible churches) adds to this normative and theological weight. For example, it points to a theological reality in which the initiative of the Church, and not the initiative of individual members, is fundamental to salvation. Hence, for believers, it is of tremendous soteriological importance that churches are legally free to engage in the mystical Body’s divine act of salvation.93 The standard argument can contribute to this freedom by making clear that the theological beliefs at stake (e.g., the Church’s supernatural personality and the salvation-through-incorporation that she brings) are deserving of legal solicitude. Without such solicitude, believers could be in a perilous situation—namely, alienation from the saving Body of Christ. Another reason to preserve the standard argument involves normative limits. The above paragraph mentions the Church acting (via concrete 92 See

Laborde, Liberalism’s Religion, 173; Schragger and Schwartzman, “Some Realism,” 367. What Are Freedoms For?, 149–50; William T. Cavanaugh, Theopolitical Imagination: Discovering the Liturgy as a Political Act in an Age of Global Consumerism (London: T & T Clark, 2002), 46–52. 93 Garvey,

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visible churches) upon individual people, without the initiative or initial consent of the latter. That prospect certainly sounds alarm bells for political liberals, from Lockeans to Labordeans, as it signals group domination and disrespect of individual rights. But it must be admitted that the standard argument could never stand on its own, normatively speaking. Its final conclusion, that “legal rights protect some groups’ moral rights,” is by no means exhaustive of moral deliberation. It merely adds one procedural datum or institutional fact to the process of moral reasoning, which, I argued, should look to social reality as best and widely understood (see Fig. 3.1 and Chapter 4). The standard argument, therefore, must be complemented by, or embedded within, a procedure of legal rights ascription that takes into account a wide array of empirical and normative data. That procedure, I propose, could be my theory of corporate religious liberty. Let us therefore accept that the standard argument has normative merit and, further, that it could be integrated into my proposed theory without serious risk of group domination. We now must consider what this integration looks like, clarifying (i) how legal rights can extend to the Church as supernatural and (ii) how the logic of the standard argument fits within the assignment of legal rights as facilitated by modest group realism. Perhaps the greatest challenge raised by the standard argument relates to its supernatural subject (the mystical body, the Church) who, according to various theological traditions, exists invisibly and encompasses all the Christian faithful, if not all people. Locke, for example, argues that the true church exists “‘wheresoever two or three are gathered together in his name …’ (Matt. xviii.),” this being a “very express and positive” position made plain by scripture.94 And de Lubac suggests that, through over-extension, the term “mystical body” can be, and has been used, to describe society at large: “Suárez would say that people grouped into society formed … ‘a mystical body that morally can be called on in itself,’ and, … Kant would address his readers on the mystical body of reasonable beings formed by the free submission of each one to the rule

94 Locke,

“A Letter Concerning Toleration,” 112.

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of moral laws.”95 In these constructions, the Church is present virtually everywhere. However, it is unreasonable to presume that all groups of individuals (or even a single person) should receive robust churchbased protections simply because they, in some manner, are members of the mystical body. The challenge, then, involves determining where this mystical body or supernatural person is concretely, such that the Church can be subject to legal protection in actual practice. To meet this challenge, I take inspiration from the Roman Catholic tradition, following de Lubac’s call to “return to the sacramental origins of the ‘mystical body’”96 and recognizing the Second Vatican Council’s distinction between the invisible and visible Church. In particular, I propose the following: that we protect the invisible Church (the Church as mystical or supernatural) through extension of legal rights to visible churches. How does this proposal work? In short, it turns upon an understanding that the invisible Church exists wherever genuine sacramental activities take place—that is, within visible churches. As understood within Catholic theology, the most distinctive and important of such activities is the celebration of the Eucharist.97 But all Christian sacraments or sacramental activities—inclusive of preaching—could be included in this proposal.98 Hence, if we follow de Lubac when he says that “all the sacraments are essentially sacraments of the Church; in her alone do they produce their full effect,”99 then we can infer that legal rights extended to sacramental organizations (visible churches) are legal rights extended, albeit indirectly, to the corpus mysticum or persona supernaturalis (the invisible Church). Immediately, one might object that this approach is entirely too Christian and specifically too Catholic to be useful in a religiously pluralist 95 De

Lubac, Corpus Mysticum, 118 (original italics removed). Lubac, 260. 97 Catholic Church, Catechism of the Catholic Church (London: Geoffrey Chapman, 1994), para. 1324. 98 As John Calvin argues, the administration of the sacraments coupled with the preaching of God’s word signify the presence of the true Church. See Karl Barth, The Theology of John Calvin, trans. Geoffrey W. Bromiley (Cambridge: William B. Eerdmans, 1995), 183. 99 De Lubac, Catholicism, 32. 96 De

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society. But we must remember, first, that this proposal is meant to sit within a Christian theory of corporate religious liberty (which is developed in part to combat reductive images of the Church) and, second, that this proposal could be extended through analogy to non-Christian houses of worship. With regard to the second point, we can consider churches that administer (an array of Christian) sacraments100 to constitute the central case or core example of legally protected houses of worship. Then, in comparison to the central case, we can identify similarities in other nonChristian religious organizations. Entities with relevant similarities are deemed houses of worship and, as such, are viable recipients of corporate religious liberty rights101 —in this case, rights that are indirectly ascribed to a strong group agent, the Church herself. As for the first point, we can look to Cardinal Avery Dulles, who judges the sacramental view of the Church to be the most comprehensive and true to the Church’s Christian identity. The following excerpt from his Models of the Church is illuminating: The sacramental type of ecclesiology in my opinion has special merit. It preserves the value of the institutional elements because the official structures of the Church give it clear and visible outlines, so that it can be a vivid sign. It preserves the community value, for if the Church were not a communion of love it could not be an authentic sign of Christ. It preserves the dimension of proclamation, because only by reliance on Christ and by bearing witness to him, whether the message is welcomed or rejected, can the Church effectively point to Christ as the bearer of God’s redemptive grace. This model, finally, preserves the dimension of worldly service, because without this the Church would not be a sign of Christ the servant.102

100 I

take it that all Christian churches are sacramental to some extent, even if only in the sense of affirming the “incarnational” presence of Christ in others. 101 Relevant similarities can include the teaching of religious beliefs, rituals, patterns of worship, and the like. 102 Avery Dulles S.J., Models of the Church, expanded ed. (New York: Doubleday, 2002), 189 (italics mine).

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As Dulles notes, the sacramental vision of the Church faithfully ties together the Church’s diverse characteristics: her institutional design, communal nature, evangelical witness, and selflessness. But, more usefully for us, the sacramental model discretely brings forth the Church’s corporate ontology, her invisible agency, which works through the sacraments, institutions, community, proclamation and service of visible churches. So, when we read in de Lubac that baptism bestows a “‘concorporation’ of the whole Church in one mysterious unity”103 and that the Eucharist (“the sacrament in the highest sense of the word”104 ) truly binds us to “the body born of a virgin” (the corpus verum), we understand that the sacraments of the Church purposefully direct believers toward a sui generis, mystical unity: “the Body of Christ which is the Church.”105 Thus, given the comprehensive substance of the sacramental model, it is fitting for a Christian approach to corporate religious liberty to utilize it in fashioning a central case—specifically, an organizational central case—for legal rights ascription. Objections now aside, I maintain that the supernatural person, the Church, can be legally protected when rights are extended to organizational entities that engage in sacramental action (as a central case) and to entities with similar purposes (as identified through analogy). The question now remains as to how the standard argument fits within a procedure of legal rights ascription that is facilitated by modest group realism. This question is no longer so mysterious: In admitting that the invisible Church is protected via rights granted to visible churches, we put ourselves squarely within the freedom of the church framework established in Chapter 4. Specifically, we are able to say that the standard argument—especially in its final conclusion (“Therefore, legal rights protect some groups’ moral rights”106 )—fits within the first legal condition prescribed by our proposed theory of church freedoms (see Fig. 4.2). In saying this, we 103 De

Lubac, Catholicism, 33. Lubac, 35. 105 De Lubac, 38–39. 106 Schragger and Schwartzman, “Some Realism,” 352, n. 32. 104 De

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(i)(a) assume a procedurally related belief whereby church members expect the invisible Church to act upon them, or incorporate them, in whatever religious or specifically sacramental group-agential action they intend to perform; and so we (i)(b) prescribe governmental recognition of this religious truth107 in order to create legal conditions wherein belief of that truth may be corporately exercised. In other words: We place the standard argument within the legal reasoning of the state, as the state recognizes the idea of religious truth (here, the idea of a supernatural person) and responds to facilitate the communal acting-out of that truth through diverse church protections (for examples, see Sect. 2.2). By embedding the standard argument within our proposed theory of corporate religious liberty, we maintain belief in the supernatural personality of the Church and continue to describe her explicitly as such for purposes of rights ascription. This resists a Lockean reduction of the Church into a mere voluntary association, both on the part of religious claimants (e.g., church authorities speaking to public officials: see Sect. 2.3.1) and on the part of government authorities. Consequently, it adds a third legal subject for consideration in cases involving the freedom of the church—namely, the group-as-moral -person. This is a category that belongs to the only genuine strong group agent: the supernatural person, the Church. See Table 6.1. So, the concept of the invisible Church can feature within public discourse and legal reasoning. But it must be stressed that the groupas-moral-person and the standard argument do not stand on their own. Table 6.1 ST I-II, 21, 4

Agents involved in the freedom of the church i

ii

iii

iv

Group

Ruler

All members

Individual

Recognized authority

All Individual associating believer believers within the group

Visible (a) Group-as-social-action churches (b) Group-over-time (c) Group-as-moralperson

107 By

“governmental recognition of religious truth,” I mean establishment or a “space-creating” non-establishment (see Sect. 4.3.1).

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While rights ascription features them at the first pair of procedurally related beliefs and governmental responses, it also considers other procedurally related beliefs and further legal conditions that are involved in, or are required for, the exercise of a given group-agential action. Hence, a theory of the freedom of the church also accounts for (ii)(a) members’ consent to church authority in religious matters and (ii)(b) governmental deference to that authority, as well as (iii)(a) members’ expectation of internal adjudication in religious matters and (iii)(b) governmental interference when morally justified (see Fig. 4.2). Such contextualization subjects the legal reasoning of the standard argument to a comprehensive procedure of rights ascription. In effect, this means that any rights of the group-as-moral-person (ascribed by means of the standard argument) may be tempered by moral conclusions arrived at through a full process of rights ascription (i.e., consideration of all three pairs of procedurally related beliefs and corresponding governmental responses). In the end, the rights attendant to the groupas-social-action (the group-agential act itself ) and the group-over-time (the “thing” to which legal rights can be prescribed: see Sect. 5.1.2) could coincide with the rights of the group-as-moral-person. However, diverse circumstances could justify numerous occasions when the former set of rights tempers the latter, despite the normative import of the invisible Church herself.

6.3.3 Corporation of the Presiding Bishop v. Amos An example of similar legal reasoning can be found in Corporation of the Presiding Bishop v. Amos (1987). In this case, the U.S. Supreme Court held that religious non-profits can legally discriminate on religious grounds in the employment of seemingly non-religious (or secular) roles.108 While the case does not explicitly discuss group agency, it does

108 Corporation

of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 107 S.Ct. 2862 (1987) (Brennan, J., concurring) (arguing that it is not a violation of the Establishment Clause to grant religious exemptions to the secular, not-for-profit activities of religious organizations, specifically with regard to Title VII prohibitions against religion-based employment discrimination).

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feature a rare judicial reference109 to the Church as an organic entity (i.e., a strong group agent), and it illustrates how such a conception can be used in legal reasoning. To appreciate the Amos Court’s integration of the standard argument, we focus upon Justice William Brennan’s concurring opinion. Brennan begins his opinion by noting the “confrontation between the rights of religious organizations and those of individuals” that characterizes the Amos dispute.110 And, while recognizing the discriminatory risks that individuals may face when employed by religious organizations, Brennan ultimately affirms the autonomy of the latter to organize their internal affairs (specifically, employment practices) without governmental interference made on behalf of disgruntled individuals. To argue this point, Brennan emphasizes the role that organizational autonomy plays in protecting the rights of individual believers. Interestingly, Brennan does so with reference to a form of strong group realism. A passage near the beginning of his opinion reads as follows: For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself. Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.111

If understood in apposition to “tradition,” Brennan’s “organic entity” could be interpreted metaphorically. However, mention of the entity’s irreducibility, coupled with the adjective “organic,” evokes strong group 109 Cf.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694, 706 (2012) (justifying the existence of the ministerial exception through normative appeal to consenting individuals: “The members of a religious group put their faith in the hands of their ministers”). 110 Amos, 107 S.Ct. at 2870. 111 Amos, 107 S.Ct. at 2871–2 (footnotes removed) (italics mine).

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realism and so discredits a metaphoric interpretation. Discernible in Brennan’s passage, then, are references to a religious community that transcends individuals’ coordinated efforts and a corresponding belief that such a community (which we refer to as a strong group agent) holds normative importance for believers. But, importantly, we note that any relevant rights are not assigned to the organic entity per se. Instead, they are granted both to the particular religious community that represents the organic entity (“furtherance of the autonomy of religious organizations”) and to the individuals who exercise their religious belief within the particular community (“furthers individual religious freedom as well”). Brennan’s argument thus entails (i) a group right applicable to the particular, or visible, community and (ii) individual rights that adhere to each associating believer. As for the relative normative importance of each category of rights, Brennan avoids crudely reducing the normative justifications of the former into those of the latter. Unlike Justice Ginsburg’s dissent in Burwell v. Hobby Lobby Stores, Inc. (2014),112 Brennan is not so explicit in accounting for the autonomy of religious groups in terms of individual rights alone. Nevertheless, we see that Brennan’s discussion of “[t]he authority [of religious communities] to engage in th[e] process of self-definition”113 presupposes their voluntary character.114 Therefore, it is reasonable to conclude that his normative defense of religious group autonomy weighs strongly upon individual rights (to religious freedom and self-determination), as opposed to group rights (especially of the organic entity) that are normatively underived from the rights of individuals. At this point, we are able to appreciate the basic contours of Brennan’s approach to religious group autonomy and its integration (and moral contextualization) of strong group realism. In sum: His approach 112 Burwell

v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2795 (2014). 107 S.Ct. at 2872. 114 Brennan never refers to the religious community as voluntary, but the reference is undoubtedly implied. Brennan, for example, cites Douglas Laycock who argues that “voluntary affiliation with the group is the premise on which [religious] group autonomy depends.” See Amos, 107 S.Ct. at 2871; and Douglas Laycock, “Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy,” Columbia Law Review 81, no. 7 (November 1981): 1405. 113 Amos,

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turns normatively upon individuals and their belief that religious exercise requires association within (visible) religious communities. These communities represent, and tie individuals to, an “organic entity” of theological and normative importance. Legal autonomy granted to the visible communities allows the communities (or associating individuals) to define their internal practices in relation to that organic entity and this, in turn, furthers the religious freedom of the individuals who voluntarily choose to associate within them. Understood in this way, Brennan’s approach of religious group autonomy is not dissimilar to my own understanding of the freedom of the church and of its integration of strong group realism and the standard argument. Brennan’s approach remains more closely aligned to the individual–group divide than my own—resting primarily and implicitly with the individual side, while admirably refraining from crude reductions of the group-rights position. However, by contrast, my approach seeks to move beyond that divide: I explicitly focus upon group-agential actions and, by means of this, seek to protect all the agent-types involved—from the individual believers to the diverse group-types at stake, including the group-over-time and the group-as-moral-person. It must be reiterated, of course, that both my and Brennan’s approaches protect the group-as-moral-person, or the “organic entity,” by positioning (the idea of ) it within the beliefs of associating religious believers. As both of our approaches show, this idea requires legal protection for any corresponding religious exercise to take place. But my theory in particular then goes on to demonstrate that other procedurally related beliefs (pertaining to religious authority and internal adjudication) are involved and are normatively important. The corresponding governmental responses to these other procedurally related beliefs help explain why the (idea of the) group-as-moral-person, although normatively important, may not receive such robust legal protections as some might expect. In short, this is so because visible churches (through which the group-as-moral-person acts) may justly be subject to external adjudication (here, governmental interference).

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On this last point, the Amos case may not be the most illustrative since the Court ultimately protected the religious communities in question.115 However, one could imagine scenarios in which the protection of individuals employed by religious non-profits for presumably secular roles would merit governmental interference. In such scenarios, protection of the group-as-moral-person may not be so robustly protected.116 In the end, we must admit that the standard argument is no silver bullet. Rights ascription requires moral deliberation upon relevant facts, beyond the normative import of the group-as-moral-person itself. Nevertheless, we should recognize that the ontological reality of the Church, as corpus mysticum or persona supernaturalis, can give incomparable normative meaning to believers. Following Steven D. Smith, we can say that so long as individuals and communities believe in this onto-normative fact, then the assignment of legal rights should recognize it through an integration of the standard argument or something akin to standardargument reasoning.117 Doing so shows respect for individuals’ acts of believing, which is a normative touchpoint within Christian approaches to religious liberty; and, importantly, it preserves a non-reductive image of the Church. As Brennan indicates, this image can have bearing on legal reasoning in actual practice. Therefore, in the interest of maintaining a proper theological self-identification and of adding a distinctive Christian or theological voice to public discourse, churches and other religious organizations should not hesitate to describe themselves in strong group-realist terms. So long as those terms are kept within our proposed theory of corporate religious liberty, churches and secular liberals need not fear group domination. Instead, they should expect reasoned moral deliberation over the actions involved.

115 Amos,

107 S.Ct. at 2873. federal government tried to make an argument along these lines in Hosanna-Tabor, 132 S.Ct. 694 (2012). 117 Steven D. Smith, “The Jurisdictional Conception of Church Autonomy,” in The Rise of Corporate Religious Liberty, ed. Flanders et al. (Oxford: Oxford University Press, 2016), 35. 116The

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Conclusion

This chapter set out to determine how a strong group-realist interpretation of the Church could be integrated into an account of corporate religious liberty that recognizes modest group agents as its primary subject. I structured this investigation into three sections. In Sect. 6.1, I considered the extent to which the Church could be understood as a strong group agent, particularly within a Roman Catholic ecclesiological framework. This work was aided by a stipulative definition of strong group realism, constituted by the animation requirement (which holds that an external force, Christ himself, accounts the Church’s group agency) and the literalness requirement (which holds that group-agential language describing the Church is not merely metaphorical). Then, in Sect. 6.2, I asked why the Church is not commonly described in strong group-realist terms today and how this situation affects our understanding of church protections. My response to both questions was preceded by a historical narrative, wherein I traced a gradual eschewal of the Church’s strong group agency (as suggested in patristic and early medieval thought) via two historical transformations: first, a medieval secularization of the term corpus mysticum and, second, the secularization of Locke’s “true church” into today’s voluntary association. Through this narrative, I concluded that contemporary secularism, voluntarism, and group-agency elimination challenge any effort to integrate strong group agency into legal rights ascription. Therefore, a careful means of integration is necessary. I presented a possible means of integration in Sect. 6.3. There, I revisited the standard argument to demonstrate how the Church (understood by Clérissac and Maritain as a persona supernaturalis) could be integrated into my proposed theory and thereby protected by law. Prominent among my conclusions, I argued that the Church (an invisible, supernatural person) could be legally protected when rights are extended to her unique sacramental activities as engaged in by visible churches. Furthermore, I explained how the standard argument fits within the standing intention of a church’s members and so subjects the idea of the Church’s strong group agency to governmental protection (or interference).

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What we see through this proposal is the protection of a Christian social reality—that is, the Church as strong group agent—through means amenable to both (i) Christian conviction and (ii) action-based moral deliberation. It is attention to the latter that gives traction to strong group realism, since action-based deliberation allays the threat of group domination based solely upon group-ontological conclusions. And it is attention to the former, to Christian conviction, that helps preserve the distinctly Christian and group-ontological in our moral reasoning over corporate religious liberty.

7 From Group Ontology to Christian Moral Reasoning

To conclude, we return again to this book’s guiding question: To whom or to what does corporate religious liberty apply? I have argued that a promising approach focuses upon the group-agential actions involved, rather than individuals or group persons per se. From a Christian ethical perspective, this approach has several benefits, including (i) attention towards ethically salient distinctions between group-types, as well as (ii) the preservation of the distinctive religious character of churches (see Sect. 5.2). Most importantly, however, this action-based approach invites (iii)(a) reflection upon the group ontologies of the Christian tradition and (iii)(b) consideration of whether these ontologies are useful for legal rights ascription. In this context, the question concerning the “to whom or to what” of corporate religious liberty is joined by a complementary and no less important query: Is group ontology morally distracting? To this latter query, this book has responded with a sustained “No.” In this final chapter, I tie together and elaborate upon some of the arguments made in support of this position. My aim is to emphasize how modest and strong group realism are useful for both moral deliberation and a distinctly Christian approach to corporate religious liberty. © The Author(s) 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3_7

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Drawing upon the work of John Finnis, Sect. 7.1 discusses the place of modest group realism within natural law (or practical moral) reasoning. Then, departing somewhat from Finnis, and attending to theological interpretations of Saint Paul and Aquinas, Sect. 7.2 addresses how strong group realism can serve as a proxy for, or a bridge to, the virtue-based and ecclesial dimensions of practical reason. Finally, Sect. 7.3 offers initial thoughts on how Christian communities might approach a range of current religious liberty disputes—including disagreements over the religious freedoms of wedding vendors and the nature of government involvement with respect to clerical sex abuse. Although this concluding chapter cannot provide extensive analysis of these disputes, I hope that it might indicate some principled Christian ethical directions.

7.1

Modest Group Realism and Practical Reason

A major claim of this book has been that modest group realism serves as a useful aid to moral deliberation, especially as regards the assignment of legal rights (see Sect. 5.1.3). Building upon this claim, we now explore modest group realism’s natural law context. Here, I claim that modest group realism is part of practical moral reasoning itself and, thus, that its moral context invites reflection upon rights-based—as well as nonrights-based—reasons to protect or limit corporate religious exercise.1 Aquinas, we recall, holds that groups are not mere fictions,2 but rather genuine “wholes” or “unit[ies] of order.”3 Having already noted Aquinas’s implicit use of group realism in the Treatise of Human Acts (see Sect. 4.1.2), we can also point to his prologues to the Secunda pars 1 An

earlier version of Sect. 7.1 appeared in Edward A. David, “Is Group Ontology Morally Distracting? A Natural Law Approach to Corporate Religious Liberty,” Oxford Journal of Law and Religion 8, no. 3 (October 2019): 641–44, 647–49, https://doi.org/10.1093/ojlr/rwz022. 2 John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 27. 3 Finnis, Aquinas, 24 (referencing Thomas Aquinas, Summa theologiae II-II q. 58, aa. 2 and 5). Henceforth, in this chapter, I reference the English Dominicans’ translation, using book, question, and article enumeration. See Summa theologiae, ed. Fathers of the English Dominican Province, 61 vols. (London: Blackfriars, 1964–1980).

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and Sententia libri ethicorum, where Aquinas situates groups within his discussions of human action and social behavior.4 These contexts further support the view that Aquinas understands groups as (i) acting agents, composed of individual human persons, as well as (ii) instances of coordinated, self-determining actions. Given this dual perspective, Aquinas’s group ontology should be viewed as falling within moral philosophy.5 Hence, modest group realism is not simply a useful aid to practical moral reason; it is part of moral reasoning itself. Taking Aquinas to be representative of the natural law tradition, we now ask how his group ontology might inform corporate religious liberty analysis. Keeping in mind the distinction between legal and natural moral rights,6 let us attempt to ascribe the latter type of rights, not to rights-holding things or persons, but rather to coordinated and self-determining actions—that is, to groups-as-social-actions (see Sect. 5.1.3). Is such ascription intelligible within the bounds of practical reason? From a natural law perspective, the ascription of natural rights to social actions is not so straightforward. Indeed, following a natural law framework, such ascription might be logically impossible. To gain clarity on this issue, let us consider an implausible account of “natural group rights,” followed by a more plausible interpretation. We turn again to Finnis and his interpretation of natural law reasoning. Among recent articulations of the natural law tradition, Finnis’s Natural Law & Natural Rights is perhaps the most comprehensive.7 However, one noticeable omission is explicit treatment of the nature or logic of group rights, both natural and legal. Chapter eight (simply entitled “Rights”) discusses moral rights, rights-talk, duties, the common good, rights specification, equality and respect and, finally, absolute human rights. At no point in this discussion does Finnis explicitly treat 4 ST

I-II prol.; and Thomas Aquinas, Sententia libri ethicorum (Rome: Ad Sanctae Sabinae, 1969), vol. 1, prol., n. 6. 5 Finnis, Aquinas, 26. 6 John Finnis, Natural Law & Natural Rights, 2nd ed (Oxford: Oxford University Press, 2011), 198–99. 7This claim holds at least with respect to the field of jurisprudence, if not to ethical theory in general.

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groups as subjects, or holders, of natural rights. And, regarding legal rights, the group as rights-holder is seldom directly mentioned. What accounts for these omissions? And how might the reasons behind them affect our understanding of group rights in general? Focusing upon the nature of natural rights themselves, we can answer the first question rather succinctly: Since (i) the logic of rights involves person x having a claim or liberty against person y with respect to action z 8 ; and since (ii) only natural persons, in the classical sense, can hold natural rights9 ; and since (iii) groups are not persons in the classical sense10 ; it follows that (iv) the logic of natural rights precludes groups from being natural rights-holders. So the omission of natural group rights is justified when we consider the logic of natural rights along with an ontology that resists an organicist understanding of groups. But we do not stop our investigation here since we must still explain how the above logic, as well as Aquinas’s group ontology, might positively shape our understanding of group rights in general. In other words, now that we have eliminated the possibility of natural group rights, what viable alternative(s) do we have? Based on a growing literature on group agency and rights, it seems that there are many alternatives from which to choose. Not all of these alternatives are at home within the natural law tradition however.11 Therefore, for our purposes, I offer one plausible way in which we might use the logic of natural rights, along with Aquinas’s group realism, to account for the nature of group rights: This involves situating the group-as-social-action within its logical, and thus most appropriate, place within a procedure of rights ascription that is informed by natural law reasoning. Recall that the logic of natural rights involves (natural) person x having a claim or liberty against (natural) person y, with respect to 8 Finnis,

Natural Law & Natural Rights, 199, n. 28. discussion of persona in Sect. 6.3.1. 10 Finnis, Aquinas, 27; John Finnis, “Persons and Their Associations,” in Intention and Identity: Collected Essays; Volume II (Oxford: Oxford University Press, 2011), 95, 98. 11 For example, while Christian List and Philip Pettit outline an account of group agency that is compatible with a natural law ontology, they endorse a normative individualism that may not translate well into a natural law account of natural rights. See Christian List and Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (Oxford: Oxford University Press, 2011), 182. 9 See

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action z.12 On a natural law account, groups cannot stand in the place of natural persons x or y. So their only possible fit within this logic is at the term action z. Although seemingly counterintuitive, this placement makes sense if we take seriously the tradition’s ontology, which views groups as “order[s] of human, truly personal acts.”13 Thus placed, groups-as-social-actions are not the subjects (the rights-holders or dutyfulfillers) of natural rights. Rather, they are the objects to which persons have natural rights and duties. Now we can newly appreciate the various social goods to which the natural law tradition claims natural rights: for example, the rights to marry and to raise children; to coordinate in communities of business, play and friendship; to engage in, and benefit from, political and intermediary societies.14 Insofar as these goods involve the “coordination of activity by a number of persons, in the form of interactions, and with a view to a shared objective,”15 then they imply the idea of morally right social action or what I refer to as group right . Differently put, we might understand this idea to entail natural rights held by individual persons to do things that contribute to human well-being in an intentional, coordinative manner. This, I suggest, is a logical conclusion of situating a group-as-social-action (that is, Aquinas’s modest group agent as viewed through the lens of moral philosophy) within a natural rights framework. Having laid out a plausible account of group rights within the natural law tradition, I now highlight two normative implications of this approach. The first is most important and pertains to the idea of group right and its potentially moderating effects. Constituting a natural law account of group rights, the concept of group right facilitates the moral analysis of right social action. Such analysis is necessary if the assignment of legal rights is to sufficiently identify what is morally owed to whom in a given corporate religious liberty dispute. This specification (we now add) occurs when we translate a 12 For

alternative conceptions of the logic of (natural or legal) rights, see Joseph Raz, “RightBased Moralities,” in Theories of Rights, ed. Jeremy Waldron (Oxford: Oxford University Press, 1984), 183. 13 Finnis, “Persons and Their Associations,” 95. 14 Finnis, Natural Law & Natural Rights, 86, 139–44, 144–50. 15 Finnis, 153.

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two-term rights relation—between “a (class of ) persons and a (class of ) subject-matter”—into its corresponding three-term relations.16 Hence, we might say that a right to free religious association (a class of subjectmatter) bears upon believers a, b, c, etc. (class of persons 1), third parties (class of persons 2), and a local government (class of persons 3). From this, various three-term natural rights relations can be identified, thereby encouraging a careful assessment of the moral stakes involved. In other words, the idea of group right helps to stop moral deliberation from jumping straight from dispute to legal rights ascription. With various three-term rights relations laid out, it slows down and refines the process of deliberation by first asking, “What is the right thing to do?” and not “Whose (legal) right wins?” This shift from rights to right action has the potential to improve moral discourse, leading to better religious freedom policies and corporate rights ascriptions. But, turning now to our second implication of a natural law approach, we wonder: Is moral deliberation exhausted, or best fulfilled, when we speak in terms of natural rights alone? There is reason to doubt. Consider the tendency for rights-talk to forget the moral virtues or other nonrights-based reasons for acting. As the legal philosopher Joseph Raz points out, it is a common view that “one ought to do that which one has a duty to do, but that one does not always have a duty to do that which one ought.” He explains: “Thus, while I ought to allow my neighbour who locked himself out of his house to use my phone, I have no duty to do so. On the other hand, since I have promised my neighbour to saw off … a branch overhanging a corner in his garden, I have a duty, and therefore I ought, to do so.”17 Continuing, Raz notes how, on similar grounds, rights-talk seems incapable of recognizing the intrinsic value of moral virtues: “None of the commonly recognized virtues … consists in discharging one’s duties or being disposed to do so. Honesty is a virtue which is particularly closely tied to the duty not to deceive, and yet even it is not exhausted by compliance with the duty.”18 Raz thus concludes that rights-based 16 Finnis,

218. “Right-Based Moralities,” 184. 18 Raz, 185. 17 Raz,

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theories lack the resources to appreciate the characteristics and virtues that are “intrinsically desirable” and that ought to be “cultivated for their own sake.”19 Within a rights framework, those characteristics are always seen to serve another end—namely, my rights. Recognizing the lacunae of such an approach, not to mention the polarization to which it might easily succumb, we conclude that there are serious grounds on which to reject a strictly rights-based notion of group right. Perhaps, then, our conception of morally right social action, and of practical reason(ing) in general, should be complemented by other conceptual resources—I make a theological case for this position immediately below. But, first, it is worth re-emphasizing two central claims made in our discussion thus far: (i) that modest group realism is part of practical moral reasoning itself; and (ii) that practical reason, as understood within the natural law tradition, can usefully handle group rights through the idea of morally right social action—or group right —to good yet limited effect. Limitations notwithstanding, these claims alone speak volumes about the benefits of modest group realism for moral and legal deliberation. Thus, it remains at the core of our Christian and group-ontological approach to corporate religious liberty.

7.2

Strong Group Realism and Christian Moral Reasoning

Let us now consider strong group realism once more. While some have argued that this form of group ontology is especially morally distracting, we have seen how its emphasis upon the active and supernatural agency of the Church can provide normative weight to a procedure of legal rights ascription and thereby firmly ground, and reasonably demarcate, church freedoms (see Sect. 6.3.2). In this section, I develop a related claim: that strong group realism invites Christians to reflect upon the theological resources available to practical reason and, ultimately, to incorporate those resources into their moral deliberations over corporate religious liberty. Having discussed the significance of the sacraments (see 19 Raz,

186.

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Sects. 4.3.1 and 6.1.3), I here focus upon another theological concept: the virtues. With attention to Saint Paul and Aquinas, I suggest that the strong group agent, the Church, guides the moral and social life of Christians through virtue; and I argue that the cultivation and exercise of virtue should inform Christian engagement in corporate religious liberty disputes. We begin with Saint Paul’s treatment of virtue in the Letter to the Romans, Chapters 12 through 15. Here, Paul urges his readers to “be transformed by the renewal of [their] mind” (12:2). And he stresses the virtues necessary to “live in harmony with one another” (12:16)— including patience (12:12), faith (14:23) and a genuine love (12:9). Notably, Paul’s exhortation to virtue is framed in corporate and ecclesial terms: “For as in one body we have many members … so we, though many, are one body in Christ, and individually members one of another” (12:4–5).20 Commenting on Romans 12, the Dominican theologian Servais Pinckaers notes that Paul’s “ecclesial body” is “far more than a juridical society.” It is “a living spiritual reality whose soul is charity.”21 Hence, complementing an organicist notion of the Church, Pinckaers stresses how the moral teachings of Romans 12 form a “body of charity” (“so to speak”): “Charity, … which Paul calls ‘the bond of perfection,’ will group around itself all the virtues that enter into our concrete actions in the Church … They are like multiple facets of charity, its qualities and servants.”22 Returning to the idea of strong group realism, we should stress that to conceive of the Church as a “body” does not require a strictly metaphorical interpretation (see discussion of the literalness requirement in Sect. 6.1.2). Further still, there is no logical necessity that the ontological status of the Church has to cause, or be equivalent to, the ontological status of the body of virtues. Thus we can maintain belief in the literal (and mystical) corporate body of the Church (what Pinckaers, without 20 Romans

12–15 (RSV). Pinckaers O.P., “Conscience and Christian Tradition,” in The Pinckaers Reader: Renewing Thomistic Moral Theology, ed. John Berkman and Craig Steven Titus (Washington, DC: The Catholic University of America Press, 2005), 325 (italics mine). 22 Pinckaers, 326. 21 Servais

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appeal to metaphor, calls a “spiritual organism”), while recognizing the metaphorical “body of charity” that the Church, in all her members, commits as her own. That said, with the animation requirement in mind (see Sect. 6.1.1), we might say (with some theological and ontological accuracy) that Christ, as the head of the Church, works through the virtue of charity to transform the collection of believers into one corpus mysticum. In this sense, the ontological status of the Church does affect the ontology of the virtues—not by transforming their “body” into an additional and literal corpus, but rather by using their metaphorical body for a literal “building up” of the Church. The possibility, or theological reality, of Christ’s intervention in the collective and moral life of believers brings us to another dimension of virtue: its role in a theological ethic or, differently put, in Christian moral reasoning. Departing from Saint Paul, but not from the Pauline tradition, we turn to Aquinas for illumination. Two preliminary remarks, however, are required. The first concerns subject-matter: Throughout this book, my treatment of Aquinas has largely focused upon the philosophical, whether concerning modest group realism or the precepts of natural law. But, with Finnis, we must admit that “Aquinas himself was a writer not on ethics alone but on the whole of theology.”23 So our attention now focuses upon Aquinas the moral theologian, not Aquinas the moral philosopher. Our second remark concerns scope: Aquinas’s treatment of the virtues is extensive, to say the least. For present purposes, it will be useful to only and summarily indicate how Aquinas understands the relationship between practical reason (our central topic in Sect. 7.1 above) and the panoply of virtues, from the natural (or acquired) to the theological and infused. I here offer a summary account, guided largely by a recent and lucid study by Richard Conrad O.P.24 Beginning with practical reason, Aquinas invites us to recognize three propositions pertaining to its limits: first, that practical reason aims towards a beatitudo or human flourishing that is at best “fragile” and 23 Finnis,

Natural Law & Natural Rights, 35. Conrad, “Human Practice and God’s Making-Good in Aquinas’ Virtue Ethics,” in Varieties of Virtue Ethics, ed. David Carr, James Arthur, and Kristján Kristjánsson (London: Palgrave Macmillan, 2017), 163–79. 24 Richard

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“non-complete”25 ; second, that practical reason must often deliberate with norms, requirements, or considerations “that are derived at some remove” from its basic principles26 ; and third that, given the complexity of man’s inner life (especially as regards reason, will, and the passiones animae), practical reason cannot attain moral integrity on its own. Indeed, the “open-endedness” of the human faculties and the endless variations of ethical circumstance seem to work against this.27 What, then, can overcome these limitations? Aquinas’s answer may be succinctly put: “a good quality of the mind,” in other words, “virtue.”28 Much could and ought to be said by way of explanation, of course; Aquinas himself dedicates much of the Secunda pars to this task.29 But, a few remarks concerning the acquired, theological, and infused virtues will have to suffice. On the natural plane, Aquinas recognizes a set of virtues that can be cultivated through human practice. These acquired virtues include the cardinal forms inherited from Aristotle: prudence (ST II-II qq. 47– 56), justice (qq. 57–122), fortitude (qq. 123–140), and temperance (qq. 141–170). And each acquired virtue, we are told, reinforces the others.30 Prudence, in particular, concerns the “right reason about things to be done” and thus it—through action upon the will—deploys the acquired virtues in a way that is appropriate to, and thus reasonable for, a given circumstance. It “counsels, judges and commands,” bringing the virtues (and the actions they guide) to their proper ends.31 Prudence also exhibits itself within good human laws, insofar as those laws promote the acquired virtues and their habituation within society. In this respect, virtuous laws contribute to practical reason’s fragile form of beatitudo.32 Now, as much as Aquinas stresses the importance of the acquired virtues, he is keenly aware that they too—like un-aided practical 25 Conrad,

164–65 (referencing ST I-II q. 5, aa. 3-4). 175 (referencing ST I-II q. 94, a. 2). 27 Conrad, 165 (referencing ST I qq. 81–82). 28 ST I-II q. 55, a. 4 (internal quotation marks removed). 29 For example, see ST I-II qq. 55–70 and ST II-II qq. 1–170. 30 Conrad, “Human Practice and God’s Making-Good,” 165 (referencing ST I-II q. 61, a. 1). 31 ST I-II q. 65, a. 1. 32 ST I-II q. 95, a. 1. 26 Conrad,

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reason—have limitations of their own. Largely but not exclusively attained by human effort,33 the acquired virtues are disproportionate means to the human person’s true end: i.e., God himself. Hence, as Conrad notes, “Aquinas argues for ‘theological’ virtues, God -given resources by which we can lay hold on God.” These are: Faith [which] strengthens our intellect to assent to what God has revealed of Himself and His plan. Hope, a divine “energy of will”, [which] empowers us to tackle a journey that would be beyond us were it not for God’s power bringing us home. [And] Charity [which] is a divine friendship by which we share God’s delight in Himself, in ourselves, and in those He gives us to care for.34

Notably, the theological virtues are not unaccompanied. Aquinas recognizes the need for infused virtues, a particular category of good qualities of mind, by which “God works in us without us.”35 Led by charity, these virtues are what Conrad calls “God-given … versions of the cardinal virtues,” and their importance for the moral life cannot be overemphasized. Conrad writes: “All faculties in the moral life need to be formed in a new way in the context of a life lived toward a future, divine fulfillment, again on the grounds that resources must be proportioned to their intended outcome.”36 Aquinas illustrates this point by drawing attention to the difference between acquired temperance (which aims toward “the health of the body”) and infused temperance (which, “according to Divine rule,” seeks a divine goal).37 Without denying the former’s significance for human flourishing, only the latter type of virtue brings the human faculties—and, thus, the human person—to perfect beatitude, an unending friendship with God.38

33 Conrad,

“Human Practice and God’s Making-Good,” 171–73 (noting how the acquired and infused virtues supply for each other). 34 Conrad, 166–67 (italics in original) (referencing ST I-II q. 2, a. 8; and ST I-II q. 62 a. 3). 35 ST I-II q. 55, a. 4. 36 Conrad, “Human Practice and God’s Making-Good,” 168–69 (italics in original). 37 ST I-II q. 63, a. 4. 38 ST I-II q. 5, aa. 4–5.

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What, then, should we take from this brief foray into Aquinas’s moral theology? I highlight two lessons. First, insofar as God acts through the theological and infused virtues, we could plausibly hold them out as an animating principle (“a force … surging from above”39 ) that works upon individuals in their moral and social lives. Understood in this way, the virtues do not simply imply a form of strong group realism; rather they, along with the sacraments (see Sect. 6.1.3), constitute means that build up that group ontology. Moreover, the virtues, on both Aquinas’s and Saint Paul’s understandings, add further normative content to strong group realism. Therefore, in addition to the general proposition that the Church actively saves souls and thus should be accounted for in free exercise analysis (see Sect. 6.3.2), strong group realism is now seen to suggest a “body of charity” that believers are exhorted to take up as their own—for “the renewal of [their] mind” (Romans 12:2). Yet believers, of course, cannot do this without divine assistance. They depend upon the gathering work of charity (1 Corinthians 13), which is a virtue supplied directly by God (ST II-II q. 23, a. 1) and by the sacramental work of the Church (ST III q. 60, a. 3). Thus strong group realism, in its properly theological and sacramental form, demands from Christians a God-given and genuine love for others (Romans 12:9). In short, it demands a theological virtue ethic. Now to a second lesson. Our foray into Aquinas’s moral theology suggests that the virtues can usefully complement, and even complete, practical reasoning (as discussed in Sect. 7.1 above), as well as the churches’ teachings on religious liberty (as summarized in Chapter 2). Recall the idea of group right or morally right social action. While we commended this idea for its ability to identify three-term rights relations amid moral complexity, we concluded that its strictly rights-based approach (despite offering great precision) is insufficient. Other normative sources, we claimed, must be taken into consideration. Having now surveyed parts of Aquinas’s moral theology, we see that his treatment of the virtues can fill this lacuna. In short: Since the virtues guide the intellect (assisting in the identification of good) and the will (directing the appetites towards the goods identified), the virtues (in their natural 39 List

and Pettit, Group Agency, 9.

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and theological forms) round out practical reasoning. They are instrumental to practical reason, but they themselves are also “intrinsically desirable”40 since a virtuous disposition is itself a type of good.41 Thus, the recognition and the pursuit of right social action necessarily involve the cultivation of virtue, as well as a recognition of its intrinsic worth. Though seemingly obvious, this conclusion appears to be too easily forgotten—even by Christians, who are meant to embody the virtue of charity (Romans 12:9). Nevertheless, despite frequent emphases on rights and political liberties, the churches themselves do in fact recognize the significance of virtue. Turning to their teachings on “political prudence” and “responsibility,”42 as regards the “inalienable right” of religious freedom,43 we now see how Aquinas illuminates the significance of these virtues. As Aquinas might say, these virtues (as acquired) help practical reason to draw close to (a fragile) beatitude. And, as infused,44 we could also say that these virtues help bring Christians to a perfect and supernatural fulfilment—doing so amid, and through, their political and legal efforts.45 What Aquinas adds, therefore, is normative and theological substance—specifically to church teachings that, perhaps due to their generality or conversation with “outside” sources, seem to lack weight in both regards. Aquinas’s (and, of course, Saint Paul’s) reflections should thus be seen as a boon for Christian ethical engagement. Following them, rights-talk could be genuinely complemented by the virtues; virtue-talk could be substantiated by natural and supernatural ends; and reason itself could recognize its need for divine assistance. That the corpus mysticum 40 Raz,

“Right-Based Moralities,” 186. I-II q. 55, a. 4; and Joseph J. Kotva Jr., The Christian Case for Virtue Ethics (Washington, DC: Georgetown University Press, 1996), 38. 42 Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church (Washington, DC: United States Conference of Catholic Bishops, 2014), para. 422. See also The Third Assembly of the World Council of Churches, “Statement on Religious Liberty, New Delhi 1961,” in Main Ecumenical Statements on Principles Concerning Religious Freedom (Geneva: World Council of Churches, 1965), 35, lines 41–45; 37, lines 18–26; and 35, lines 47–54. 43The Third Assembly of the World Council of Churches, 36. 44The acquired virtues could also be said to result from the infused virtues. Aquinas, however, does not disentangle the acquired and infused virtues. See Richard Conrad, “Human Practice and God’s Making-Good,” 171–73, 175–76. 45 Conrad, 171. 41 ST

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helps bring about this assistance is but one metaphysical belief that adds yet more substance to Christian moral reasoning. Certainly a Christian approach to corporate religious liberty could benefit from these moral and group-ontological reflections.

7.3

Reflections on Current Legal Challenges

Let us take stock. In this chapter, I elaborated upon the uses of modest and strong group realism for moral deliberation in general and for a distinctly Christian approach to corporate religious liberty. I showed that modest group realism can account for morally right social action through the specification of three-term rights relations. And I demonstrated how strong group realism can complement rights-based moral reasoning through the incorporation of theological resources, such as the infused virtues. I now comment on a pair of current religious liberty disputes in order to illustrate how our moral and group-ontological reflections might add clarity, and a distinctive voice, to ongoing debates. Focusing on the American context and on underlying jurisprudential issues, I address (i) the religious rights of wedding vendors and public accommodations, and (ii) the nature of government involvement with respect to clerical sex abuse. My treatment of these topics—as with my treatment of modest and strong group realism above—will necessarily be brief. But I hope that the following reflections will at least indicate the directions a Christian approach might take.

7.3.1 Public Accommodations To begin, we consider disputes over the religious freedoms of public accommodations (especially of wedding vendors) and the civil rights of LGBTQ+ individuals (when seeking goods or services from public

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accommodations for same-sex weddings).46 I make two claims: first, that Christians may have good reasons to accept strict limitations upon religious exercise in public-accommodations contexts; and, second, that Christians should not rest content with approaches to religious freedom that explicitly downplay the value of religion itself. Both claims are related and, as we will see, can follow from a Christian ethical approach. Consider the first claim. Authoritative documents from the Catholic and Protestant traditions recognize the moral limits of religious freedom, especially with respect to the public order over which the state has care.47 Hence, if public order is secured in part through public-accommodations law, then it seems to follow that Christians ought to limit their rights claims for the sake of the state and public order. But certainly a Christian approach would not stop there. Why follow the state, and not one’s church or God? So we ask: What exactly accounts for the churches’ recognized limitation of religious liberty? And why should Christians accept limitations in the context of public-accommodations or wedding-vendor disputes? An answer to these questions is suggested if we reexamine the idea of religion itself, starting with a conception that is antithetical to a Christian approach in important respects. The philosopher Brian Leiter proposes that religion has three essential characteristics: It provides existential consolation,48 involves a categoricity of religious commands, and is insulated from commonly accepted scientific evidence.49 From these characteristics, Leiter suggests that religion ultimately offers no practical benefit for a state that takes Millian utilitarianism as a normative guide50 ; though, he suggests that religion could be sufficiently protected by a Rawlsian or deontological state, which would protect religion through 46 For

example, see Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018); and State of Washington v. Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019). 47The First Assembly of the World Council of Churches, “Declaration on Religious Liberty, Amsterdam 1948,” in Main Ecumenical Statements on Principles Concerning Religious Freedom (Geneva: World Council of Churches, 1965), 7. See discussion of Protestant and Catholic perspectives in Sect. 2.1 above. 48 Brian Leiter, Why Tolerate Religion? (Oxford: Princeton University Press, 2013), 52–53. 49 Leiter, 34. 50 Leiter, 56–58.

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a legal regime of freedom of conscience, as opposed to freedom of religion.51 Leiter’s idea of religion is thus morally neutral at best. But his emphasis upon categoricity and insulation from scientific evidence betrays a predominantly negative assessment, which supports a moral argument in favor of a tenuous and even resentful religious toleration. By contrast, a Christian approach to religious liberty would culminate in a more generous legal regime since it would begin from a fundamentally different understanding of religion and its value. Recall the Secunda pars, where Aquinas defines religion as a moral virtue, whose objects (e.g., right worship) are the means to the last end (i.e., God).52 I utilized a narrow interpretation of Aquinas’s definition in order to articulate a theory of the freedom of the church, one that is appropriately scoped by attention to cultus or distinctly religious actions (“means to the last end”) of church communities (see Sect. 4.3.1). But having examined Aquinas’s treatment of the virtues (see Sect. 7.2), we can now say that the virtue of religion has wider implications. In short: it contributes to practical moral reason. Accordingly, religiously motivated secular actions—as addressed by a theory of organizational exemptions (see Sect. 4.3.2)—are rightly acknowledged as manifestations of practical reason. Now we are able to respond to our two initial queries. What ultimately accounts for (appropriate) limitations to religious liberty pertains to the fact that religion is one aspect of practical reason itself. As a moral virtue, religion helps guide actions to their proper ends. However, it does not do so in isolation; the acquired and infused virtues also play a role. So, while religion might demand the execution of some action (e.g., mass public worship during a pandemic), the virtue of prudence may advise the contrary given its attention to the wider situation (e.g., significant physical harms that could result if mass pubic worship were not suspended). What applies in public health contexts can also apply to public accommodations. The question of whether Christians should accept limitations in wedding-vendor disputes is indeed complex; and an appropriate 51 Leiter, 52 ST

16–17. II-II q. 81, a. 5.

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response requires careful fact-based analysis, in addition to the exercise of moral virtue. But, with this in mind, we might venture the following general opinion: that (i) if the relevant gay rights are accounted for in public-accommodations laws; and (ii) if public-accommodations laws help secure the public peace over which the state has charge; then (iii) it may not be prudent to assert the free exercise of religion in (many) public-accommodations contexts. Doing so would presumably disrupt public peace, inciting animosity towards those seeking organizational exemptions. Or, differently (and more theologically) put, doing so might undermine the churches’ own commitments to the temporal common good—that is, to the conditions in which a “fragile” and “non-complete” form of human flourishing53 can be achieved by all.54 Certainly disagreements over the morality of same-sex marriages exist, and debate over the proper scope of religious freedoms persists. Nevertheless, a line may need to be drawn with regard to organizational exemptions in public accommodations and, specifically, wedding-vendor contexts. If sensible religious exemptions cannot be found, then prudence may need to find alternative ways for the virtue of religion to take root in this particular sphere of common life.55 We turn to our second claim: that Christians should not rest content with approaches to religious freedom that explicitly downplay the value of religion itself. In today’s wedding-vendor disputes, free exercise claims

53 ST

I-II q. 5, aa. 3–4. I-II q. 96, a. 1. 55 See Richard Garnett, “Symposium: Conscience, Conditions, and Access to Civil Society,” SCOTUSBlog: Supreme Court of the United States Blog, September 15, 2017, https://www. scotusblog.com/2017/09/symposium-conscience-conditions-access-civil-society/ (arguing for the protection of religious conscience in public-accommodations contexts); John Finnis, “Equality and Religious Liberty: Oppressing Conscientious Diversity in England,” in Religious Freedom and Gay Rights: Emerging Conflicts in the United States and Europe, ed. Timothy Samuel Shah, Thomas F. Farr, and Jack Friedman (Oxford: Oxford University Press, 2016), 21–40 (arguing for reasonable accommodation of religious conscience). But see also John Finnis, “Darwin, Dewey, Religion, and the Public Domain,” in Religion & Public Reasons: Collected Essays; Volume V (Oxford: Oxford University Press, 2011), 37–38 (arguing that the neutrality requirement of the free exercise doctrine following Employment Division v. Smith should suffice to “give religion the constitutional protection it deserves”). 54 ST

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are often muted in favor of amplifying related free speech or free association considerations.56 This approach seems ethically short-sighted, however. For one, it tacitly buys into Leiter’s negative conception of religion and this, in turn, does nothing positive for a Christian moral pedagogy. Instead of assessing religion for its moral worth, it is presumed to be too controversial or ethically suspect for consideration. At the same time, free speech and free association are deemed morally worthy. Thus, one may (easily) conclude that speech and association—but not religion—are of genuine moral worth. This pedagogical conundrum suggests that First Amendment jurisprudence has become problematically unbalanced, with free exercise being overly restricted by Employment Division v. Smith (1990), while free speech and association are treated as seemingly absolute.57 It also suggests that hybrid rights, which continue to vex legal commentators for their presumed illogic, can make good ethical sense—particularly when religion is deemed worthwhile and thus adds moral weight to claims of free speech or association.58 In short, if religion is viewed not as Leiter might have it, but as the Christian tradition proposes, then we might see 56 Brief for the United States as Amicus Curiae Supporting Petitioners at 7, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018) (No. 16–111) (arguing that Colorado’s public-accommodations law directly implicates the Free Speech Clause, not the Free Exercise Clause); Finnis, “Darwin, Dewey, Religion, and the Public Domain,” 37–38 (suggesting that “unjust impositions on religious or religiously motivated activities and associations” are best resisted by “associational freedom and parental rights,” rather than religious liberty, in legal disputes involving same-sex marriage). 57 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (the Free Exercise Clause permits the state to prohibit the sacramental use of peyote and to deny unemployment benefits for individuals discharged for using the drug). Eric Segall, “Symposium: Disentangling Free Speech and Freedom of Religion in Masterpiece Cakeshop,” SCOTUSBlog: Supreme Court of the United States Blog, September 13, 2017, https://www.scotusblog.com/2017/09/symposium-disentangling-free-speech-freedomreligion-masterpiece-cakeshop/ (arguing that “discrimination in the provision of secular services based on religious belief … does not deserve constitutional protection,” but that the baker’s free speech claims are worth consideration). 58 For a debate over the logic of hybrid rights, involving Muslim communities, see Frederick Mark Gedicks, “Three Questions about Hybrid Rights and Religious Groups,” Yale Law Journal Forum 117 (March 19, 2008), https://www.yalelawjournal.org/forum/three-questi ons-about-hybrid-rights-and-religious-groups; Murad Hussain, “Reweighting the Balance: Religious Groups, Mortal Threats, and ‘Hybrid Situations,’” Yale Law Journal Forum 117 (March 23, 2008), https://www.yalelawjournal.org/forum/reweighting-the-balance-religious-groups-mor tal-threats-and-hybrid-situations.

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more clearly (i) religion’s intrinsic moral worth, as well as (ii) its practical moral limits. Both perspectives are needed for reasoned engagement in corporate religious liberty disputes, especially with respect to the normative assumptions and proper scope of free exercise regimes. As Christian communities continue to weigh in on public-accommodations disputes, they would do well to keep both perspectives in mind.

7.3.2 Clerical Sex Abuse Another challenge to consider is a scourge that has no denomination: clerical sex abuse.59 My reflections address the primary agents and means of institutional redress. We ask: In what ways should the government and churches be involved? “It is clear,” notes Paul Horwitz, “that state intervention is appropriate when [a religious] institution abuses its own members.”60 Abraham Kuyper, the nineteenth-century Dutch theologian, would agree. When abuse is seen in the church, family, or elsewhere, the state has an obligation, says Kuyper, “to defend individuals and the weak … in those spheres.”61 If this basic position is relatively clear, what remains contested is the manner in which state or governmental intervention should be deployed: What means are, and are not, morally appropriate? Though an answer to this question depends upon circumstances, a solution need not be merely situational. A Christian approach to corporate religious liberty would utilize a range of normative principles—related to religious truth, internal authorities, and government interference—to navigate diverse situations and, of course, to critique and guide governmental efforts (see Sect. 4.3). Two types of state intervention are worth our reflection. The first pertains to the seal of confession. Since at least the late eighteenth and early nineteenth centuries, jurisdictions within the United States have recognized a priest-penitent privilege, whereby the state, in its 59 Marci Hamilton, God vs. the Gavel: The Perils of Extreme Religious Liberty, 2nd ed. (New York: Cambridge University Press, 2014), 45. 60 Paul Horwitz, First Amendment Institutions (London: Harvard University Press, 2013), 189. 61 Abraham Kuyper, “Third Lecture: Calvinism and Politics,” in Lectures on Calvinism (Peabody, MA: Hendrickson Publishers, 2008), 83.

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fact-finding efforts to address various wrongs, is barred from obtaining information from priests when that information has been revealed (to the priests) during a (sacramental) confession.62 The reason for this pertains to church doctrine, which, in the Roman Catholic tradition, requires believers to regularly confess their sins and for priests to never violate the confidential seal of confession. As Kent Greenawalt notes, “even if a penitent has confessed to a murder for which an innocent person is likely to be convicted, the priest, without risking excommunication, is not allowed to reveal what he has been told.”63 So as not to entangle itself with this core religious practice, one with which interference would not result in the desired information being obtained, the government (generally) respects this long-standing privilege between priest and penitent. Of course, governmental deference to the seal of confession could take various forms and, at times, could be morally inappropriate. Consider the California legislature’s recent attempt to respect—and break—the seal of confession. Responding to nation-wide scandals over clerical sex abuse, Senate Bill 360 (S.B. 360) affirmed the priest-penitent privilege in the context of “penitential communications” between clerics (of whatever denomination) and their lay members.64 S.B. 360, however, proposed to rescind that privilege with respect to knowledge gained between clerics themselves. In other words, should a cleric confess to committing sex abuse, either within or outside of an official “penitential communication,” the clergy privy to this knowledge would be compelled to report it to specified state agencies.65 Failure to do so would result in “up to six months confinement in a county jail or … a fine of one thousand dollars ($1000) or … both.”66

62 City of Boerne v. Flores, 521 U.S. 507, 542–43 (1997) (J. Scalia, concurring and pointing to the priest-penitent privilege recognized in People v. Phillips, Court of General Sessions, City of New York [1813]). 63 Kent Greenawalt, Exemptions: Necessary, Justified, or Misguided? (London: Harvard University Press, 2016), 188–89. 64 S.B. 360, Cal. Leg., Reg. Sess. (Cal. 2019). See Section 2, (d)(1)(A)-(E). 65 S.B. 360, Cal. Leg., Reg. Sess. (Cal. 2019). See Section 2, (d)(5)(A)-(B). 66 S.B. 360, Cal. Leg., Reg. Sess. (Cal. 2019). See Section 2, (c).

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In the end, S.B. 360 never became law, having been pulled by its author after California’s Public Safety Committee raised First Amendment concerns.67 Nevertheless, over a five-month period, from its introduction to its withdrawal, a majority of the California legislature supported the bill. What, then, was the moral appeal of S.B. 360? From a Christian ethical perspective, the bill had at least three positive aspects. It recognized the importance of religion—and, specifically, the practice of sacramental confession—for believers. It was also mindful of the internal terms of coordination (the group policies and authorities) that are required for the corporate exercise of confession (i.e., the priest acting on behalf of the church to forgive sins and to conceal the contents of penitential communications). And, finally, the bill recognized that the state does have a role to play in protecting vulnerable individuals, including minors susceptible to abuse. S.B. 360 thus attempted to carefully navigate between a believer’s perspective of church autonomy (here, the freedom of the church to respect the seal of confession) and what the state considers to be a compelling moral interest (namely, the eradication of child sex abuse). Despite these positive aspects, S.B. 360 ultimately lacked sufficient ethical justification. It targeted a core religious activity, which, if circumscribed by the bill, would have been inaccessible to clergy for fear of exposure, imprisonment, or excommunication. And, as noted above, it is unclear whether this circumscription would have fulfilled the desired state interest. Commenting on seal of confession cases in general, Greenawalt writes: “If secular law demanded that … [a priest] testify about what has been confessed to him, a faithful priest would refuse, thus bringing to bear the potential application of ordinary sanctions without the state’s accomplishing its basic purpose of acquiring the information.”68 In short, S.B. 360 failed on three counts: (i) undervaluing the significance of a core religious activity, i.e., cleric-to-cleric penitential communications; (ii) disregarding churches’ internal doctrines and procedures with respect to that activity; and (iii) undermining the state’s 67 “California Confession Law Dropped,” Catholic News Agency, July 9, 2019, https://www.cat holicnewsagency.com/news/california-confession-law-dropped-31494. 68 Greenawalt, Exemptions, 188–89.

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own interest in effectively protecting vulnerable individuals from institutional harm. Good intentions notwithstanding, the bill was improperly scoped by state legislators and thus would have done little to eliminate the scourge of clerical sex abuse. We now turn to a second form of state intervention: the lifting of statutes of limitations for clerical sex abuse victims. Though far from perfect, this type of intervention better suits a Christian approach to corporate religious liberty. Succinctly put, statutes of limitations are “deadline[s] for filing a lawsuit” against a person or entity.69 They exist for the reasonable purpose of preventing litigation over past actions when, as Thomas Reese S.J. notes, “witnesses, evidence, and alibis are missing and memories are foggy.”70 However, with regard to clerical abuse of minors, short statutes of limitations may undermine their reasonable purpose, since it is “a well-documented fact that many victims of abuse do not come forward until long after their abuse occurred.”71 Thus recognizing that (i) victims deserve justice in some form, but also that (ii) church operations (including right worship and service to the poor) can buckle under the weight of increased litigation costs, we are left wondering: What is the right balance? How do we meet a statute of limitations’ reasonable aims (including the support and reform of churches), while ensuring that justice is served on behalf of those who suffer? One strategy currently in use is to (temporarily) lift statutes of limitations by, say, a few years so that victims who otherwise would not be able to litigate are given the opportunity to bring a civil claim against a negligent religious organization. This approach has led churches (especially the Roman Catholic Church) to do one, or both, of two things: (i) to create church funds to compensate victims, or (ii) to lobby governments in order to keep statutes of limitations down (thus minimizing the

69 “Statute

of Limitations,” California Courts: The Judicial Branch of California, accessed April 7, 2020, http://www.courts.ca.gov/9618.htm. 70Thomas Reese S.J., “Extending the statute of limitations,” National Catholic Reporter, June 16, 2016, https://www.ncronline.org/blogs/faith-and-justice/extending-statute-limitations. 71 Ibid.

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number of lawsuits brought against particular churches or dioceses).72 For our purposes, we need not remark upon the technical details of these church responses; instead, a few comments on their normative dimensions will suffice. First, as Reese rightly emphasizes, it is important to clarify what (or who) “the church” is, especially when we speak about civil suits and statutes of limitations. “For many people, ‘the church’ is synonymous with the bishops.” But, as Reese notes, “the bishops who covered up [clerical abuse] will not be punished by civil suits against the church. Most of these bishops are dead or retired.” Continuing, Reese asks: “Who [then] has suffered?” “The people of God,” he responds. Indeed, church members suffer with sex abuse victims—through compassion as members of Christ’s body, and even through “lost” financial donations that are redirected to cover litigation costs from their originally intended uses for liturgy, education, or charity. Reese, of course, does not blame sex abuse victims for these negative consequences: “I say this simply to state a fact.”73 But his subject-matter inquiry is appropriate: Any good analysis of corporate religious freedoms requires a full range of facts; thus it is morally necessary to illuminate who exactly is affected by (i) institutional negligence and by (ii) a subsequent legal retribution. From these facts, prudent decision-making can proceed. For example, acknowledging the good that religious organizations do for others, public officials—in conversation with churches—could insist on reasonable financial limitations to church-fund payouts. This could help preserve church operations for the good of members and society at large. And it would extend equal treatment to religious entities, putting them on par with secular public institutions whose financial reparations

72 For

example, see United States Conference of Catholic Bishops, Report on the Implementation of the Charter for the Protection of Children and Young People, May 2018, http:// usccb.org/issues-and-action/child-and-youth-protection/upload/2017-Report.pdf; Sigal Samuel, “Should the Catholic Church Pay Reparations to Sex-Abuse Victims?,” Atlantic, September 25, 2018, https://www.theatlantic.com/international/archive/2018/09/catholic-chu rch-reparation-compensation-sex-abuse/570610/. 73 Reese, “Extending the Statute of Limitations” (italics mine).

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are typically limited (indeed, “politicians know that taxpayers do not want their money going to pay for the crimes of others,” Reese notes74 ). Another example of prudent decision-making would involve churches implementing as much transparency as possible in their fund procedures and payouts. Negotiation of funds’ amounts should require full financial details of relevant churches and dioceses; fund management should involve some level of non-church administrators in order to be trusted by victims and outsiders; and the arbitration process for victims should be as painless as possible so as not to cause further trauma through imposed silence or undue impediments to future legal recourse.75 Finally, what should be said about the legal efforts of some Catholic dioceses to freeze statutes of limitations? Certainly this strategy has been subject to much criticism, with one commentator claiming that “the funneling of … money to the Church’s lobby arm … seems directly counter to recent statements the Church has made publicly, vowing to take accountability [of clerical sex abuse].”76 But, one may wonder whether such criticisms are not entirely fair. It is true, for instance, that the Church’s lobbying expenditure has increased steadily over the past decade in the Northeastern United States; according to public filings, over $10 million dollars were spent across eight states between 2011 and 2018.77 But these figures do not take into account the even larger increase in settlement payments that occurred over the same period; all U.S. dioceses and eparchies spent more than $162 million in settlements in 2017, up from $53 million the previous year. Indeed, between 2014 and 2017, the U.S. Church spent $86 million in payments and related legal costs.78 All of this suggests (i) that the church is indeed taking steps

74 Ibid. 75 Sigal

Samuel, “Should the Catholic Church Pay Reparations?”. Capatides, “Catholic Church Spent $10.6 Million to Lobby Against Legislation that Would Benefit Victims of Child Sex Abuse,” CBS News, June 6, 2019, https://www.cbsnews.com/news/catholic-church-scandal-spent-10-million-lobbyists-fightextension-statutes-of-limitations-child-sex-abuse-vicims/. 77 Williams Cedar LLC and Seeger Weiss LLP, Church Influencing State: How the Catholic Church Spent Millions Against Survivors of Clergy Abuse, June 2019, https://www.williamscedar.com/files/ 2019/06/ChurchInfluencingStateCatholic.pdf. 78 United States Conference of Catholic Bishops, Protection of Children and Young People, 38. 76 Christina

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to reckon with its past harms and, further, (ii) that it, like any organization, is attempting to remain financially viable in order to serve its entire body of members—including those it has harmed through abuse and negligence, as well as those who faithfully remain in the Church, who pray for resolution and reconciliation. Perhaps, then, an adequate resolution to the scourge of clerical sex abuse will require both governmental and ecclesial cooperation. As states aggressively pass legislation to lift statutes of limitations, and as churches attempt to preempt such moves through dedicated funds, representatives from both sides (or “spheres”) might consider coming together to deliberate over sensible (and non-judicial) solutions—including financial limitations to fund payouts, and lay or external participation in fund management. A Christian approach to corporate religious liberty requires respect for religious group autonomy, but it does not forbid government involvement. In fact, it encourages involvement—even collaboration— when justified. Thus bishops, who have care for the entire Body of Christ, would do well to take the first step forward, leading with transparency, a cooperative spirit, and continued prayers for virtue.

7.4

Conclusion

In this chapter, I asked whether group ontology is morally distracting, especially when considering to whom or to what corporate religious liberty applies. Building upon arguments made in previous chapters, I explained how the Christian tradition’s two forms of group ontology contribute to moral deliberation in general and to a distinctly Christian approach to corporate religious liberty. In Sect. 7.1, I situated modest group realism within practical moral reason and then demonstrated how this type of group ontology facilitates a usefully precise form of rights-based moral analysis. This benefit notwithstanding, I ended the section by noting how rights-talk cannot exhaust moral deliberation. Thus, in Sect. 7.2, I discussed how the virtues both complement and complete practical reason, helping it aim toward the temporal common good and toward the human person’s ultimate, theological end. To the extent that the invisible Church, the persona supernaturalis, contributes to these moral and soteriological tasks,

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we can say that strong group realism plays a vital role in a Christian approach to corporate religious liberty. Directions that such an approach might take were suggested in Sect. 7.3 with respect to the religious freedoms of wedding vendors and the scope of government involvement in addressing clerical sex abuse. For each type of dispute, I emphasized how Christian moral reasoning— inclusive of its group-ontological dimensions—sets some clear boundaries, yet challenges a rash winner-take-all approach. This conclusion naturally follows when moral deliberation eschews an emphasis upon rights-holding individuals and group persons per se and instead focuses upon right and virtuous social action.

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Index

A

Accommodations in Connection with Coverage of Preventive Health Services (2017) 44 action group-agential 60, 109, 151, 177, 219 religious 103, 127 religiously motivated yet secular 136 self-constitutive 105 Alito, Samuel 11, 154 American Civil Liberties Union 2 Aquinas, Thomas fields of rational inquiry 85 group-agency reduction and 187 group ontology of 99, 105, 218 natural law and 219 religion and 232 Sententia libri ethicorum 219

virtue and 225 Aristotle 85 Augustine, Saint 132, 140, 159

B

beatitudo 226 Becket (public-interest group) 2 Biggar, Nigel 15 Boethius 198 Bonhoeffer, Dietrich 15 Boniface VIII, Pope 182 Boy Scouts of America v. Dale 6 Bratman, Michael 106 Brennan, Patrick 89, 99 Brennan, William 210

C

Calvin, John 131

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 E. A. David, A Christian Approach to Corporate Religious Liberty, Palgrave Frontiers in Philosophy of Religion, https://doi.org/10.1007/978-3-030-56211-3

255

256

Index

Catholic Church abortion and 48 Catholic moral theology 49 Compendium of the Social Doctrine of the Church 27, 34 contraception and 78 Dignitatis humanae 25, 36 Gaudium et spes 35, 36, 48 lobbying to maintain statutes of limitations 240 Lumen gentium 36, 179 Mystici corporis christi 178 Unam sanctam 182 Cavanaugh, William T. 14, 158 Christian ethics moral pedagogy and 234 personalism 99 political theology and 135 self-constitutive action and 85 stake in corporate religious liberty 3, 17, 18, 65 virtue and 177, 225 church as active agent 198 as Body of Christ 37, 40, 55, 179, 203, 207 as final moral authority 167 as People of God 37 church and state 34 church autonomy. See freedom of the church common good and 233 consent and 128, 177 cooperation with state 241 corpus mysticum 184 corpus mysticum republicae 100 double subsistence of 201 Holy Spirit and 108, 199 invisible church 37, 55, 179, 205

reductionism 158 sacraments and 132, 181, 201 social ostracism of 160 supernatural personality 55, 146, 199, 200 virtue and 241 visible church 179, 205 voluntary membership and 167 well-being and 177 what counts as a 204 church autonomy 237. See also freedom of the church Citizens United v. Federal Election Commission 8 City of Boerne v. Flores 236 City of God (Augustine) 140, 161, 168 clerical sex abuse Catholic Church and 240 Christian ethics and 237 church and 239 church funds and 238 confession and 235, 236 Senate Bill 360 (California, 2019) 236 state and 235 statutes of limitations 238 transparency and 240 Clérissac O.P., Humbert 198 Coleman, Janet 98, 112 common good 27, 34, 38, 49, 50, 233 Conestoga Wood Specialties v. HHS 151 Conrad O.P., Richard 225 conscience conscientious objection 53, 144 corporate conscience 73, 78, 123 integral human fulfillment and 71

Index

natural law understanding 70 personal vocation and 75 political liberal understanding 69 contraceptive mandate 33, 36, 45, 51, 160 corporate law Justice Ginsburg and 65 Oklahoma Solicitation of Charitable Contributions Act (2014) 65 corporate personality 13, 90, 153 corporate religious liberty as illiberal 11 definition 4, 5 two forms of 104, 136, 164 U.S. Supreme Court and 147 corporate theory 63, 79, 87, 90, 174 Corporation of the Presiding Bishop v. Amos church as organic entity 209 strong group realism and 211 visible churches and 211 corporations different ownership and control arrangements 46 employee identification with 74 institutional theory of the firm 89 shareholders and 77 corpus mysticum baptism and 207 Carolingian theologians and 183 church and 184 corporational understanding of 182 Corpus Christi and 184 corpus Ecclesiae mysticum and 185 Eucharist and 184, 201, 207 Francisco Suárez and 204 Immanuel Kant and 204

257

juridical understanding of 186, 224 medieval understandings of 181 secularization and 185 virtue and 229

D

Dan-Cohen, Meir 68 David, Edward A. 141, 218 Davies O.P., Brian 130 de Lubac S.J., Henri active agency of the Church 176 corpus mysticum. See corpus mysticum Eucharist and the church 198 unity of the Church 172 descriptive and moral theories. See practical reason Dewey, John 82 Dulles S.J., Cardinal Avery 206

E

Early Church Fathers 172, 181 ecclesiology John Calvin and 205 Roman Catholic 168, 177, 207 theological virtues and 224 Thomas Aquinas and 186 Ekins, Richard 121 employee engagement at work 77 Employee Stock Ownership Plans 77 Employment Division v. Smith 8, 64, 234 Eucharist church and 180 scripture and 178 transubstantiation and 203

258

Index

European Convention of Human Rights 35 Exemption and Accommodations in Connection with Coverage of Preventive Health Services (2013) 44

F

Finnis, John Aquinas as theologian and 225 fields of rational inquiry 85 freedom of association 10 group rights and 219 personality metaphor 13 social action and 13, 18, 21, 118 First Amendment actions and 152 clerical sex abuse and 237 free exercise jurisprudence 234 hybrid rights 234 religion clauses 53 separation of church and state 15, 35, 130 First National Bank of Boston v. Bellotti 151 Flanders, Chad 4 freedom of association conscience and 145 definition 5 free exercise of religion and 234 political liberal understanding of 195 freedom of conscience 145, 232 freedom of speech Citizens United case and 8 free exercise of religion and 234 freedom of the church Catholic conception of 34, 36, 38

Christian approach to 127, 135, 207 definition 7, 33 external legal influences and 129 group agents involved in 209 individualism and 41, 55 internal adjudication and 128, 131 political liberal understanding of 42, 203 Protestant conception of 38 structural protections and 147 supernatural personality and 37 voluntary membership 1, 2, 5, 11, 17, 20, 128, 166 World Council of Churches 38 free exercise of religion employment law and 209 public health and 232 salvation and 203, 228 third-party harms and 80, 203 virtue and 53 wedding vendors and 49 Freeman, Steven F. 77 Fuller, Lon 154

G

Garnett, Richard 146, 148 Garvey, John 203 Gedicks, Frederick Mark 234 George, Robert 6 Gilbert, Margaret 106 Gilby O.P., Thomas 171 Ginsburg, Ruth Bader 62, 211 Greenawalt, Kent 9, 236 Gregory, Brad S. 202 Grisez, Germain 70, 75 group agency

Index

agnostic approach to 81 anatomy of a modest group agent 118 elimination approach to 62, 124, 182, 195 external influences and 124 reductive approach to 67 skepticism and 62 group ontology British Pluralism and 145 definition 3 elimination theory 107, 112 German idealism and 145 group realism 106 intention and 121, 124, 128, 157 medieval conceptions of 98, 109, 111, 145, 182 modest group realism 18, 108, 119, 218 moral distraction and 217 moral philosophy and 118 strong group realism 18, 19, 22, 107, 172, 223 group right . See practical reason groups as moral person 208, 212 as social action 119, 153, 155, 209, 220 authority and 114, 115, 120, 155 distinction between types 9, 11–13, 16–20, 212 non-authoritative members and 157 over time 153, 154, 209 public policy and 117, 120, 155

Hauerwas, Stanley 25 healthcare systems 46 Helfand, Michael 137 Heslam, Peter 134 Higgins-Biddle, John C. 191 Hobby Lobby Stores, Burwell v. Brief for 38 Protestant Theologians 40, 53 business owners’ religious liberty 11, 146 corporate-turn narrative 8 dissenting opinion 62, 124, 211 doctrine of corporate sincerity and 156 organizational applicability 2 Horwitz, Paul 6, 9, 10, 235 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 6, 8, 210 house of worship 165, 196, 206 human flourishing. See beatitudo Human Rights Act (1998) 35 Hussain, Murad 234 hybrid rights 234

J

Jefferson, Thomas 35 Jewish scripture and human dignity 14 John of Salisbury 185 John Paul II, Pope 34 John XXIII, Pope 25, 27 Jordan, Kent 151

K H

Hamilton, Marci 150, 235

259

Kantorowicz, Ernst 182, 185 Kennedy, Anthony 156

260

Index

Kuyper, Abraham 132, 235

L

Laborde, Cécile 2, 9, 12, 69 Laycock, Douglas 3 legal realism 88 Leiter, Brian 231 Lewis, V. Bradley 25 liberal egalitarianism. See political liberalism libertas ecclesiae. See freedom of the church List, Christian 108, 174 Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania 44 Locke, John A Letter Concerning Toleration 188 An Essay Concerning Human Understanding 189 philosophy of religion and 189 The Reasonableness of Christianity 187 Thomas Hobbes and 190 transubstantiation and 202 true church and 187 Locke’s true church American context and 196 Holy Spirit and 193 minimal Christian theology and 188 salvation and 192 scripture and 187 secularization of 194 tolerance and 192 voluntary membership and 192 worldly goods and 194

M

Maitland, Frederic W. 83 Mansini O.S.B., Guy 37, 180 Maritain, Jacques 16, 198 martyrdom 199 Masterpiece Cakeshop v. Colorado Civil Rights Commission 49, 234 Milbank, John 132, 161 Miller, Seumas 120 ministerial exception 41 Muñiz-Fraticelli, Víctor 89 Murray S.J., John Courtney 25, 26, 148 Muslim communities 234

N

natural law 134, 219 Nelson, James D. continuum of collectives 78 detachment from business 74 identification with business 73 social theory of conscience 67 strong group realism and 174 Nelson, J. Robert 26 Noll, Mark A. 167

O

Obergefell v. Hodges 8 O’Donovan, Oliver and Joan 14 organizational exemptions Catholic conception of 48 Christian approach to 136 consent and 138 definition 42 ecumenical conception of 44 individualism and 47, 55

Index

interest-balancing and 47 non-church organizations 42, 136, 141, 165 Protestant conception of 50 religious pluralism and 138, 165 secular action and 139 Orts, Eric W. 89, 174 Owen, J. Judd 190

P

Paul, Saint body of Christ and members of a prostitute 178 corpus mysticum and 183 virtue in the Letter to the Romans 224 Paul VI, Pope 26 People v. Phillips 236 person corporate person 89, 145 personality metaphor as distracting 13, 149 persona supernaturalis 201 Pettit, Philip 108, 174 Pinckaers O.P., Servais 224 Pink, Thomas 25 Pius XII, Pope 178 polarization 223 political liberalism collective integrity and 166 corporate religious liberty and 3, 9 individual–group divide and 9, 19 metaphysics and 101 moral values and 5 Wissenschaft and 163 Post, Robert 10 practical reason

261

empirical data and 18, 91, 168 freedom of conscience and 145 group right and 221 modest group realism and 218 pluralist moral theories and 95 rights ascription and 213 strong group realism and 223 virtue and 48, 222, 227, 232 Protecting the Religious Freedom Restoration Act (open letter, 2014) 47 Protestant Reformation 52 public accommodations Colorado’s publicaccommodations law 233 public-accommodations law 231 wedding-vendor disputes and 49, 230, 233 Puritan mistake 27

R

Ratzinger, Joseph 37, 167, 175, 179 Rawls, John 7, 134, 145 Raz, Joseph 222 Reese S.J., Thomas 238 religion according to Augustine 161 according to Brian Leiter 231 as action 131 as moral virtue 130, 138 as special 7, 166 as voluntary belief 159 exercise for natural persons 64 John Locke and 189 religious–secular distinction 158, 159, 161 religious truth 127, 129

262

Index

right worship and 130, 203 religious autonomy. See freedom of the church Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act (2018) 44 Religious Freedom Restoration Act 35, 47, 146, 154 religious institution 17, 164, 210 religious institutionalism Aquinas and 168 arguments against 96 arguments in favor of 146 organizational applicability of 44 over-expansion of 164 structural protections and 147, 148 religious liberty as a negative right 26, 31, 57, 58 as religious toleration 232 conscience and 26, 34, 36, 40, 51, 57 human dignity and 26, 29, 31, 40 just limits and 27 moral license to error and 27 public order and 31, 39, 52, 66, 194, 231 religious sincerity and 156 thesis/hypothesis and 25, 28 toleration and 194 truth and 27, 32, 34, 38, 41, 49, 57 virtue and 27, 229 well-being and 31, 38, 39, 52, 58 religious pluralism 206 Rhonheimer, Martin 25 Rienzi, Mark 67

rights distinction between legal and natural 219 freedom of the church and 41 group moral rights 148 group rights 2, 6, 7, 10, 41, 147, 154, 211 individual–group divide 2, 3, 9, 12, 14, 19, 144, 150, 154, 168, 212 individual rights 2, 7, 41, 144, 211 natural group rights 220 natural rights 99, 220, 221 rights-talk 16, 222 to property 8, 92, 94 two- and three-term rights relations 222 virtue and 223 rights ascription corporate personality trap 149, 153 empirical method (Dewey) 84 empirical method (Schragger-Schwartzman) 88 fields of rational inquiry and 85, 88 group-agential action and 143 group ontology and 12, 18, 20, 94, 170 metaphysical method 82 method 59, 90, 126 political liberalism and 93 practical reason and 220 shift from persons to actions 144 standard argument 100, 196, 204, 208, 213

Index

strong group realism and 182, 196 visible churches and 205 right social action. See practical reason Rivers, Julian 2 Robinson, Zoë 4

S

saeculum 140 same-sex marriage 56, 231, 233 Scalia, Antonin 64 Schindler, David L. 25 Schragger, Richard, and Schwartzman, Micah empirical method 87 general account of conscientious objection 144 indeterminancy of group ontology 81 standard argument 100, 196 Schwartzman, Micah 4 Scruton, Roger 145 Searle, John 106 Second Vatican Council 25, 28, 35, 172, 179, 200, 205 secularization 202 Smith, Steven D. 146, 213 social ontology. See group ontology sphere sovereignty 131, 140, 235 state administrative state 6 anti-discrimination laws 31, 66 as modest group agent 171 deontology and 231 sovereignty 7, 10, 131 utilitarianism and 231 Stevenson, William 131

263

strong group realism animation requirement 175, 225 definition 173 literalness requirement 177 virtue and 228 Sullivan, Winnifred Fallers 140 Summa theologiae Averroes and 111 group agents and 109, 114, 116, 150 persona in the 198 self-constitutive action and 218 Treatise of Human Acts 111, 218 virtue and 226

T

Tebbe, Nelson 6, 9 temporal common good. See common good Third Circuit Court of Appeals 151 tolerance religious ignorance and 193, 203 virtue and 193 Toleration Act (1689) 35 Trustees of Dartmouth College v. Woodward 108

U

U.N. Declaration of Human Rights 29 U.S. Conference of Catholic Bishops Free Exercise of Religion (open letter, 2012) 45 Our First, Most Cherished Liberty (2012) 36 Report on the Implementation of the Charter for the Protection

264

Index

of Children and Young People (2018) 238

V

Virginia Statute for Religious Freedom (1779) 35 virtue acquired 226 appetites and 228 friendship with God and 227 human law and 226 infused 227 sacraments and 228 Saint Paul and 224, 228 theological 225, 227 Thomas Aquinas and 226, 228 vocation 35, 51, 75 voluntarist principle 145 voluntary association 36, 56, 59, 195 von Gierke, Otto 82

W

Waldron, Jeremy 194 Ward, Keith 134 Weber, Max 106 Winkler, Adam 8 Wolterstorff, Nicholas freedom for religion 162, 163 freedom of religion 162 on Locke’s philosophy of religion 189 World Council of Churches anti-discrimination laws supported by 30 Declaration on Religious Liberty (1948) 29, 30, 39, 52 Report on Church and State (International Missionary Council, 1938) 38 Statement on Religious Liberty (1961) 28, 29, 51

Z

Zubik v. Burwell 18