Institutional Religious Exemptions: A Balancing Approach

I. INTRODUCTION"Whether and when to exempt religious practices from regulation is the most fundamental religious liberty issue in the United States today." 1 The debate concerning exemptions for religious individuals from neutral, generally applicable laws is longstanding,2 and the debate over exemptions for church-affiliated organizations and other religious institutions ("institutional exemptions") has gained increased media and legal attention in the past few years. Controversy has escalated with the Supreme Court's formal recognition of a "ministerial exemption" to federal antidiscrimination laws3 and with a limited religious exemption to the Department of Health and Human Services ("HHS") contraceptive mandate.4 Proponents of institutional exemptions argue that exemptions are necessary to protect religious freedom and autonomy; without them, the government unjustifiably intrudes into the sphere of religion by regulating private behavior in ways that jeopardize free exercise rights.5 By protecting religious institutions' right to self-governance, proponents argue, institutional exemptions protect religious freedom for individuals.6 Professor Mary Ann Glendon, for example, opines that the HHS mandate "is a grave violation of religious freedom" because it does not contain an adequate religious exemption.7Critics of institutional exemptions, on the other hand, contend that broad exemptions may unjustifiably authorize religious organizations to violate civil rights laws.8 Because religious groups may sometimes "exert, on the individual, oppressive and coercive power," exemptions may undermine individuals' rights by sanctioning the institutions' use of coercive power.9 Some have argued that institutional exemptions amount to undue preferential treatment of religious organizations, which undermines the efficacy of law.10 Professor Frederick Mark Gedicks, for example, argues that an overly broad exemption to the HHS mandate could subvert important Constitutional values such as access to contraceptives. 11 Many believe that the ministerial exemption,12 sanctioned in Hosanna-Tabor, licenses church-affiliated institutions to engage in harmful, discriminatory practices.13Similar debates in the United States concerning religious exemptions have thrived for more than two centuries,14 and the heart of the controversy is as old as civil society itself. The debate is rooted in the question of how the secular state can permit religious groups and individuals to "[r]ender . . . unto Caesar the things which be Caesar's, and unto God the things which be God's" 15 when there is disagreement as to which things are Caesar's. This issue arises when separationism fails16-when the jurisdictional spheres of the church and state are not distinct but rather overlap in conflicting ways.17 Exemptions have generally offered a solution to the age-old dilemma of how religious freedom and civil law can coexist in an ordered society when secular law clashes with what religious believers consider a higher moral law.18Institutional exemptions are unique, however, in their approach to this dilemma. They draw boundaries between the church and state domains, carving out areas that are categorically "off limits" for the state regardless of their substantive content. Communal standards are at issue rather than personal beliefs. Whereas individual exemptions depend on proof of a person's sincerely held religious belief in a specific substantive issue,19 institutional exemptions are granted more broadly in order to protect a religious group's right to self-governance.20 As Professor Perry Dane has observed, the right to an institutional exemption does not depend on an individual "asserting a specific conflict between a secular legal norm and a sincerely held religious belief. To the contrary, the right to autonomy, correctly understood, attaches to a religious institution regardless of its motives and beliefs." 21 Institutional exemptions thus fence the government out of whole fields of religious group activity. …