The Autonomy of Church and State

I. INTRODUCTION A. The Autonomy of Church and State Since the end of World War II, two visions of the proper relationship between church and state have vied for preeminence in U.S. law: one emphasizing the separation of church and state,1 and the other finding greater space for the accommodation of religion in public life.2 A third approach has prevailed in much of Europe, allowing for a much thicker interrelationship, engagement, and cooperation between church and state.3 In this Article, I will argue that each of these approaches has more in common with the other two than might appear on the surface. I will suggest that a single concept, autonomy, underlies each of these viewpoints, but that each of these visions of the proper relationship between church and state is animated by a strikingly different conception of what autonomy means and what is required for its exercise.4 Separation is animated by a conception of autonomy calling for stark independence of church and state.5 Engagement or cooperation is animated by a conception of autonomy calling for interdependence of church and state.6 In this view, the autonomy of both church and state depends upon mutual cooperation and support. Accommodation is animated by a conception of autonomy calling, somewhat counter intuitively, for what I term interindependence.7 According to this conception, autonomy requires independence, but also requires inclusion, and rests upon respect and empowerment. In addition, the law in this area is concerned with three distinct sets of autonomy interests-the autonomy of churches, the autonomy of the state, and the autonomy of individuals.8 Outcomes of cases involving the relationship of church and state or individual religious liberty are often determined by the underlying conception of autonomy adopted or assumed in a particular case, coupled with the understanding that autonomy interests are taken as preeminent. Unfortunately, both the Supreme Court and the European Court of Human Rights only intermittently appear to appreciate the centrality of the concept of autonomy in this area of the law. Often a particular conception of autonomy lies in the shadows of a case, but that conception is neither made explicit nor defended. Neither the Supreme Court nor the European Court of Human Rights does an adequate job of acknowledging and analyzing the autonomy interests that are implicated by a particular case, especially when the autonomy of the state lies at the heart of the case. The result of these failures is a body of law that is deeply unsatisfying. The U.S. Supreme Court, in particular, vacillates between different conceptions of autonomy and varying doctrinal tests, which results in church-state and religious liberty jurisprudence that is widely criticized as inconsistent, incoherent, and incomprehensible.9 The goal of this Article is twofold. First, I hope to explain the differences between these three conceptions of autonomy and how they manifest themselves in the church-state and religious liberty jurisprudence of the Supreme Court of the United States and the European Court of Human Rights. I argue that these competing conceptions of autonomy animate and undergird, though not always explicitly, current law regarding the relationships among church, state, and individual. second, the Article aims to explain the differences between these three conceptions of autonomy and, by identifying the philosophical ground underlying each of these conceptions, to help focus and further the discussion concerning which conception of autonomy provides the best model for guiding jurisprudence in this area of the law. The strengths, weaknesses, limits, and implications of the separationist, cooperationist, and accommodationist positions can more readily be assessed if the respective visions of autonomy underlying each of these positions are made explicit and subjected to scrutiny. I conclude, that in order to bring coherence and consistency to the case law, courts must do a better job of identifying and analyzing the autonomy interests at stake in a particular case and articulating and defending a conception of autonomy that will guide the resolution of the dispute. …