The Cultural Contradictions of Modern Science   /   Fall 2016   /    Book Reviews

Contesting Religious Liberty

John Inazu

When should a religious institution be subject to state regulation? Should the size or economic power of the institution factor into this judgment? What state interests are sufficient to constrain the freedom of such institutions?

The relatively obscure field of law and religion has gone mainstream in recent years. With high-profile cases hitting center stage at the Supreme Court, little-known legal doctrines and theories have migrated from the pages of law reviews to the columns of the nation’s leading newspapers. Many of the hot-button issues involve claims by religious institutions. The issue that has drawn the most attention is whether a for-profit corporation—as distinct from an individual, a church, or a religious nonprofit—can avail itself of statutory protections of religious liberty. But constitutional and statutory claims by religious institutions raise a number of other important theoretical and doctrinal issues. The Rise of Corporate Religious Liberty offers a timely set of reflections on the legal and cultural challenges and claims posed by religious institutions.

Edited by law professors Micah Schwartzman, Chad Flanders, and Zoë Robinson, the book centers on two recent Supreme Court decisions: Burwell v. Hobby Lobby (the 2014 decision which upheld the claims of closely held corporations under the Religious Freedom Restoration Act) and Hosanna-Tabor v. Equal Employment Opportunity Commission (the 2012 decision which recognized a “ministerial exception” protecting the hiring and firing of “ministers” by religious organizations under the First Amendment’s free exercise and establishment clauses). The book uses those two cases as a jumping off point to explore a wide range of topics, including constitutional doctrine, legal history, corporate law theory, the ontology of groups, and more than a few normative arguments. The impressive array of contributors includes some of the most sophisticated voices in these debates. But the breadth of this volume can also be a limitation, with some of its twenty-five contributors talking past one another, and others pursuing issues like legislative prayer that have little to do with the thesis of the book.

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