Defending a Rule of Institutional Autonomy on "No-Harm" Grounds

My comments begin by focusing on Professor Hamilton's defense of the "no-harm" principle-that is, the principle that legislatures have the general authority to make their rules applicable when those rules aim to reduce the incidence of harms defined with reference only to secular standards.1 Professor Hamilton argues that the no-harm principle conflicts with legal rules that give religious institutions some sort of autonomy in their actions.2 And indeed it does in one sense: One can define the no-harm principle to rule out claims of institutional autonomy. Understood in another way, however, the no-harm principle leaves room for institutional autonomy or for exemptions of religious institutions from the application of rules aimed at reducing the incidence of harm. The argument I sketch here for institutional autonomy is basically empirical and agrees with Professor Hamilton in making harm-reduction the overriding social goal. The argument proceeds in two steps. First, I suggest that autonomous institutions may be able to socialize their adherents more effectively than institutions that lack autonomy and that-if the institutions' values are compatible with the legislature's-their more effective socialization can produce a net reduction in the harms inflicted by the institutions' members. second, autonomy for all institutions can be defended if the gains from assuring autonomy for groups whose values are compatible with the legislature's values exceed the losses from doing so for groups with values the legislature rejects. After developing the general structure of the argument for institutional autonomy, I raise several questions about it. Denying institutions autonomy may weaken but not destroy their ability to socialize effectively, and perhaps careful attention to questions of design and their effects might allow us to come up with rules that give institutions autonomy in some restricted domains while subjecting them to regulation elsewhere. Additionally, the argument I develop is cast in terms of institutions generally, and I explore briefly the proposition that there is nothing distinctive about religious institutions that should lead us to give them, but not other institutions of civil society, autonomy. And, in conclusion, I wonder whether the essentially empirical argument I develop is one that courts can appropriately invoke, evaluate, and apply. Consider the following possibility. Some general rule aims at reducing the occurrence of discrimination on the basis of sex. A particular religious institution is committed by the tenets of its faith to nondiscrimination on the basis of sex.3 Of course, real people inevitably fall short of full compliance with the tenets of their religion. So there will be some incidents of discrimination on the basis of sex as the institution goes about its daily operations. Professor Hamilton's "no-harm" principle allows the government to invoke its antidiscrimination laws against those incidents of discrimination.4 But perhaps external supervision of the institution's operation-supervision of the sort exemplified by holding the institution liable for sex discrimination-undermines the effectiveness of the religion to inculcate the nondiscrimination norm as a matter of religious belief. That is, absent external supervision, the religion teaches its adherents that discrimination is wrong, the adherents believe the message, and they act on the belief with a high degree of compliance. Allow external supervision, however, and the adherents will not hear the message as effectively, or will not believe it as strongly, or will not bring their actions into compliance with the (religious) nondiscrimination norm. In these circumstances, the net effect of recognizing institutional autonomy-relative to the world governed strictly by the no-harm principle-is a reduction in secular harm. Here, institutional autonomy serves the no-harm principle, rather than being in conflict with it. …