Ties That Bind? The Questionable Consent Justification for Hosanna-Tabor
In "Ties That Bind? The Questionable Consent Justification for Hosanna-Tabor," Professor Jessie Hill responds to Professor Christopher Lund's article "Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor," which was recently published in the Northwestern University Law Review. Admiring Lund's effort to weave together a comprehensive understanding of when and to what extent government can regulate religious entities with public laws, Hill nonetheless finds Lund's consent-oriented approach troubling. Hill argues that Lund does not adequately justify religious organizations' assertions of sovereignty over members who seek the protection of public laws. Addressing Lund's argument that believers can always avoid religious authority by withdrawing from a religion at will, Hill points to practical and theoretical difficulties with the consent justification. For example, members may face informal but substantial and coercive pressure not to leave their religious communities. Moreover, the view of religion as purely voluntaristic is a distinctly Protestant, not universal, understanding of religious faith. Finally, even if they consent to join and remain in a religious community, members may not have notice of the doctrines to which they have supposedly consented, because the church's stance on certain legal obligations may be unclear or changing. As a result, it is not always easy to identify who is the dissenter in a religious organization and who, instead, speaks for the church. Ultimately, Hill concludes that, while Lund provides an excellent descriptive assessment of the muddled Establishment Clause doctrine, he does not reach a normatively acceptable justification for it.
Hosanna-Tabor v. EEOC, Ministerial exception, Free Exercise Reconceived, Christopher Lund, Free Exercise and Establishment Clause, Church and State, Employment, Consent, Religion, Membership, Rights, First Amendment
Place of Original Publication
Northwestern University Law Review
109 Northwestern University Law Review 563 (2015)
Hill, Jessie, "Ties That Bind? The Questionable Consent Justification for Hosanna-Tabor" (2015). Faculty Publications. 1665.