Have a look at our friend John Inazu’s insightful new piece, Freedom of the Church (New Revised Standard Version). A methodological theme in John’s writing is the importance of excavating the theological assumptions which lie below many of our current legal doctrines and theories, particularly (though not exclusively) in the law and religion context. This piece pursues the Inazian (I would have said Inatian, but that’s perhaps too close to Ignatian) theme with respect to Catholic and Protestant ideas about ecclesiastical liberty. Here is the abstract:
Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”
The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.
