The Distinctive Place of Religious Entities in Our Constitutional Order

Abstract

Although much has been written on the special place of "religion" in American law, there has been considerably less commentary on the distinctive quality of religious institutions as compared with their secular counterparts. The current law of the Religion Clauses, and the characteristics of institutions as compared to religiously motivated individuals, however, suggest that institutions deserve discrete attention. In this paper, a revised version of the Donald Giannella Memorial Lecture recently delivered at Villanova Law School, the authors focus on three different legal contexts in which questions of distinctiveness of religious institutions arise - their exemption from civil rights law with respect to the employment of clergy, their exemption from historic preservation law with respect to noncommercial real property, and their inclusion in programs of government financial support for privately delivered social services (a/k/a charitable choice). The paper develops a taxonomy of scholarly and judicial positions on such questions, including Religionists (who tend to favor whatever helps such institutions), Secularists (who tend to disfavor whatever helps religious entities), Separationists (who tend to favor distinctive treatment of such institutions, whether it helps or hurts them), and Neutralists (who tend to disfavor such distinctive treatment). In connection with the three examples, the authors develop their own position, which starts from a presumption of Neutralism but requires departures from that position if and only if the government's policy exceeds constitutional limits designed to maintain the state's penultimacy, while leaving ultimate concerns to private institutions dedicated to them.