Religious Institutionalism, Implied Consent and the Value of Voluntarism

Abstract

Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions—exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby—stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because they are created through the voluntary choices of individuals to join together in the pursuit of collective religious objectives such as faith and salvation. In so doing, these individuals implicitly authorize their religious institutions to make rules and develop doctrine that can promote these shared religious objectives. This process of consent—what the Supreme Court referred to in Watson v. Jones as “implied consent—empowers the religious institution to promulgate rules that promote shared religious values. In this way, the creation of religious institutions represent the voluntary free exercise of religion on the part of many individuals, each granting a religious institution authority over internal religious life among the membership in order to promote shared religious objectives. And in focusing on the core voluntarism of voluntarism, the article proposes answers to some of the more vexing questions left unanswered by recent Supreme Court decisions such as which institutions count as religious institutions and to what extent should these institutions be excused from complying with otherwise valid laws.