Professors Paul Horwitz and Rick Garnett have a nice discussion going about the place of institutional religious freedom in civil society, and, specifically, how institutional freedom relates to state regulation. Here is a snippet from Horwitz’s response to Garnett’s initial essay:
Our laws have always made accommodations and exemptions—not just out of respect for the individual conscience, but because we recognize the important independent role played by these institutions in civil society and wish to encourage and safeguard it. We may argue in particular cases about whether such accommodations are a matter of legislative discretion or of judicially enforceable constitutional command. But we should not—as some these days seem increasingly inclined to do—reject the value of accommodation altogether. There is room for more than one institution in our social infrastructure. The state should recognize and allow for that fact; and citizens who believe in the importance of pluralism should not forget it, either.
Perhaps the last sentence is most relevant for today’s debates about accommodations for religious institutions that may not share the particular aim of a general law. Horwitz suggests that pluralism seems to inherently tolerate different approaches to complex problems, and, by definition, allow room for those approaches to operate, especially considering that most religious institutions in the United States maintain values that are consonant with broader societal values. This contrasts with legal approaches that, in the name of pluralism, seek to neutralize certain spaces within civil society.
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