25 April 2013

ARTICLES: Pruitt on the Rural Landscape/Rosen on Religious Institutions, Liberal States, and Overlapping Spheres

Photo of Lisa R. PruittThe following articles on SSRN might be of interest:

Lisa R Pruitt, ‘The rural lawscape: space tames law tames space’ (forthcoming in I Braverman, N Blomley, D Delaney & A Kedar (eds), The expanding spaces of law: a timely legal geography (Stanford University Press, 2013)):

A fundamental tenet of legal geographies scholarship is that the legal and the spatial are mutually constituting. This chapter investigates that dynamic in contemporary rural contexts in the United States. In particular, I posit that law and rural spatiality are at odds with one another because the presence of law as an ordering, governing, regulating force of state is in tension with the socio-spatial character of rurality. Law seeks to tame or control rural spatiality, but the material (low population density, dominance of nature over the built environment) and associated social characteristics of rural and remote places effectively resist those efforts. Rural spatiality’s features tend to impede the efforts of law’s agents and processes, making for a thinner, less robust legal presence.

Critical and legal geographers, like legal scholars generally, have largely ignored the rural end of the rural-urban continuum, reflecting a rarely acknowledged urban-normativity (not to mention urban hubris). This chapter begins the work of recovering the rural, bringing it into scholarly view in order to broaden our understanding of the diffuse and localized operation of law in rural places. The chapter is thus a step toward theorizing the significance and force of rural spatiality in relation to law and legal processes. But the investigation into the rural lawscape reveals something not only about rural difference, but also about the otherwise obscure nature of law as variegated and variable. Further, looking to the rural margins reveals something about the center because the process by which law differentiates the rural also depicts, at least implicitly, the default urban norm.

Mark D Rosen ‘Religious institutions, liberal states, and the political architecture of overlapping spheres’ (forthcoming, University of Illinois Law Review)

Alongside the contemporary consensus favoring strong protections for individual religious liberty, controversial new claims on behalf of religiously affiliated institutions have been asserted with increasing frequency. They raise difficult questions. For example, are churches entitled to a “ministerial exception” exempting them from federal anti-discrimination laws when hiring and firing ministers? Must Catholic hospitals be exempted from the Affordable Care Act’s “contraception mandate,” which requires that employers provide their employees health insurance that includes contraceptive devices, because use of contraceptives is contrary to Catholic tenets?

To date, scholars have staked out two diametrically opposed approaches. One group argues that churches have inherent autonomy, and a corresponding jurisdictional independence of the state, vis-à-vis matters within the church’s domain. A second argues that churches are voluntary associations that accordingly enjoy no protections beyond their members’ constitutional and statutory rights. The first group favors the ministerial exception and exemptions from the contraception mandate, whereas the second group opposes them.

This Article critiques both approaches, and provides an alternative framework derived from John Rawls’s monumental works on political theory. What this Article calls the “Religious Institution Principle” provides a basis for determining what qualifies as a religious institution, as it explains why religious institutions are not reducible to their members, and why they are meaningfully different from most, possibly all, other associations. But religious institutions do not have any inherent autonomy. Not all religions are entitled to the Religious Institution Principle’s protections, and the principle does not provide anything approaching full immunity from state regulation for the religions falling within its coverage.

In essence, whereas the first scholarly approach treats state and church as separate juridical spheres, and the second approach eliminates the distinct sphere of religion by folding churches into their individual members, this Article conceptualizes government and religious institutions as overlapping spheres.

The Religious Institution Principle’s derivation reveals why it is fair, and why it plausibly can be thought to be acceptable to both religious and non-religious citizens. The principle generates a robust normative framework for evaluating religious institutions’ claims, which the Article applies to a wide array of difficult questions, including the polygamy decision in Reynolds v. United States, sexual abuse lawsuits against clergy, the ministerial exception, the contraception mandate, and the church autonomy cases.

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