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Published online by Cambridge University Press: 24 April 2015
Kathleen Brady's article, Religious Group Autonomy: Further Reflections About What Is At Stake, is intended to shore up her position that religious organizations deserve extremely broad autonomy from the law. Her thesis is two-fold. First, she believes that the law should not interfere with the internal operations of religious organizations, which is the position she has taken before. Second, she backs off the position apparent in her earlier work that religious organizations do great good, and, therefore, deserve autonomy. Now she posits a new thesis that religious organizations need to be protected from regulation, because they are working out the truth, and society needs the truth. This latter principle rests on the empirical claim that no one can fully know the truth (or even relative harm and benefit), and, therefore, when the law limits religious organizations, it halts the development of truth.
There was a time when I would have agreed with her, but I was then taught that my views were not based in reality. The problem posed by religious entities, even when they intend to seek the truth, is that they are run by humans, with the full spectrum of human fallibility. On this score, religious organizations really are no different than large corporations. The whole range of destructive behavior can be seen in both: fraud, extortion, misappropriation of funds, lying, deceit, covering up scandals like child abuse or doctoring financial records for the sake of the organization's image, and the list goes on. If religious actors are not deterred and punished for bad acts, they wreak great wrongs. This inescapable empirical reality plainly undermines Brady's earlier claims that seemed to imply that religious organizations deserve autonomy for the good they do.
1. Brady, Kathleen A., Religious Group Autonomy: Further Reflections about What is at Stake, 22 J.L. & Religion 153 (2006–2007)CrossRefGoogle Scholar.
2. See Brady, Kathleen A., Religious Organizations and Free Exercise: The Surprising Lessons of Smith, 2004 BYU L. Rev. 1633 (2004)Google Scholar; Brady, Kathleen A., Religious Organizations and Mandatory Collective Bargaining Under Federal and State Labor Laws: Freedom From and Freedom For, 49 Vill. L. Rev. 77 (2004)Google Scholar.
3. It is gratifying for Brady to at least acknowledge, however grudgingly, that religious entities are capable of great harm. This is an empirical reality that needs to be incorporated into every religious liberty discussion.
4. Brady chooses the term “truth” to denote the beneficial results of religious autonomy, and I will not in this commentary take her to task for it. Suffice it to say that “truth” is a contested term.
5. See Hamilton, Marci A., God vs. the Gavel: Religion and the Rule of Law 3–11 (Cambridge U. Press 2005)CrossRefGoogle Scholar.
6. See Wilson, James, The Works of James Wilson vol. 2, 605 (McCloskey, Robert Green ed., Harv. U. Press 1967)Google Scholar; Ketcham, Ralph, James Madison: A Biography (Am. Political Biography Press 2003)Google Scholar; McCoy, Drew R., The last of the Fathers: James Madison and the Republican Legacy (Cambridge U. Press 1989)Google Scholar.
7. Quakers, Methodists, and Baptists generally opposed slavery in the 18th century. See Ontario Consultants on Religious Tolerance, Christianity and Slavery: Movement towards Abolition, http://www.religioustolerance.org/chr_slav3.htm (accessed Feb. 22, 2006). The most influential opponent of slavery in early America was the Pennsylvania Quaker Anthony Benezet, Some Historical Account of Guinea, Its Situation, Produce, and the General Disposition of Its Inhabitants, written in 1772, available at Project Gutenberg, http://www.gutenberg.org/etext/11489 (accessed Feb. 22, 2007). See also Granville Sharp, An essay on slavery, proving from Scripture its inconsistency with humanity and religion: in answer to a late publication, entitled, “The African trade for Negro slaves shewn to be consistent with principles of humanity, and with the laws of revealed religion.“, available at Samuel J. May Anti-Slavery Collection, Cornell University Library, Division of Rare and Manuscript Collections, http://dlxs.library.comell.edu/m/mayantislavery/index.htm (accessed Mar. 9, 2007). By Granville Sharp, Esq; with an introductory preface, containing the sentiments of the monthly reviewers on that publication; and the opinion of several eminent writers on the subject; to which is added, An elegy on the miserable state of an African slave, by the celebrated and ingenious William Shenstone, Esq., (Burlington (N.J.), Isaac Collins 1773).
8. Robert Abzug, Abolition and Religion, http://www.historynow.org/09_2005/historian5.html (accessed Feb. 22, 2007).
9. Lest there be those who believe that the hierarchy's cover-up has abated, Cardinal Chaput of Denver recently settled a handful of clergy abuse cases and did not agree to release the files of the perpetrators. Pankratz, Howard, Groups Demand Release of Accused Priest's Files, Denver Post B-08 (11 3, 2006) (available at http://www.devenpost.com/ci_4592824, last updated Nov. 2, 2006)Google Scholar. In addition, the Archdioceses of Chicago kept secret the abuse allegations against active priests in late 2005, which led to the abuse of at least one more child. Sneed, Michael & Herman, Eric, Panel Advised Cardinal in October to Remove McCormack, Chi. Sun-Times 6 (02 24, 2006)Google Scholar.
10. See Doyle, Thomas P., Sipe, A.W.R. & Wall, Patrick J., Sex, Priests, and Secret Codes: The Catholic Church's 2000-Year Paper Trail of Sexual Abuse 40-41, 47-49, 56, 259–260 (Bonus Books 2006)Google Scholar.
11. See Berry, Jason, Lead Us Not into Temptation: Catholic Priests and the Sexual Abuse of Children (U. Ill. Press 2000)Google Scholar; Berry, Jason & Renner, Gerald, Vows of Silence: The Abuse of Power in the Papacy of John Paul II (Free Press 2004)Google Scholar.
12. Complete coverage of the clergy abuse scandal by the Boston Globe is available at http://www.boston.com/globe/spotlight/abuse (accessed Feb. 22, 2007). The Globe won the 2003 Pulitzer Prize for Public Service for this coverage, which began in January 2002.
13. Brady, supra n. 1, at xx.
14. Brady, supra n. 1, at xx.
15. One recent study lists the percentage of secular, atheist, and agnostic Americans at 10.7%. See Green, John C., The American Religious Landscape and Political Attitudes: A Baseline for 2004, at 3, http://pewforum.org/pubIications/surveys/green-full.pdf (accessed Feb. 22, 2007)Google Scholar.
16. 1 Cor 13:12 (all Biblical citations are taken from the King James Version).
17. Brady, supra n. 1, at xx.
18. See Hamilton, supra.n. 5.
19. Brady, supra n. 1, at xx.
20. Brady, supra n. 1, at xx.
21. One must also ask what happened to criminal law in her assessment, which is the arena that addresses some of the most serious harm that needs to be deterred and punished.
22. Hamilton, supra n. 5, at 297.
23. The truth is that the United States began with many state laws and then federal laws outlawing these types of speech. The internal logic of the First Amendment, though, has worked to leave those laws in the past, and to permit a most robust right of belief. See generally, Levy, Leonard W., Legacy of Suppression: Freedom of Speech and Press in Early American History (Harv. U. Press 1960)Google Scholar; Levy, Leonard W., Treason Against God: A History of the Offense of Blasphemy (Schocken Books 1981)Google Scholar.
24. W. Va. St. Bd. Educ. v. Barnette, 319 U.S. 624, 642 (1943).
25. Brady supra n. 1, at xx. Brady accuses me of failing to “recognize that when it comes to ideas for social life and human relationships, examples can be more powerful than words alone. Indeed, in some cases, it may be necessary for groups to live their ideas out for them to be fully understood by others.” Id. at xx. She is undoubtedly correct about how examples can be very persuasive, and the Catholic Church's handling of clergy abuse provides exactly the morality tale that proves how dangerous her autonomy thesis is.
