Some say it is “perfectly clear” that American law protects “men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.”Footnote ¹ Others find the possibility that “corporations … can opt out of any law they judge incompatible with their sincerely held religious beliefs” downright “startling.”Footnote ² The twenty-two contributors to The Rise of Corporate Religious Liberty expose philosophical tensions and offer practical insights for lawyers, curious lay readers, and others who are concerned about corporate religious liberty. Their reflections open up more questions than they answer.

The US Supreme Court has recently issued major decisions in cases involving corporate religious liberty claims by businesses and religious organizations. Why are these cases coming up now—nearly two and a half centuries after the founding period? After all, religious liberty, religiously flavored commerce, and religious institutions are not newcomers in American society or law. Neither are legal disputes surrounding them, as Sarah Barringer Gordon shows in her contribution to the book (63–76).

Several contributors offer clues. Paul Horwitz and Nelson Tebbe, for example, argue that recent cultural shifts and political divisions have led religious corporations to adopt a more defensive posture (207–30). Frederick Schauer's discussion of free speech protections (193–206), and Elizabeth Sepper's analysis of conscience protections for health care providers (305–22) suggest that lawyers advocating for religious liberty have adapted litigation strategies from other civil rights lawyers. This reviewer has argued elsewhere that the corporate turn reflects, in part, American religion's expansion beyond individualistic, private Protestantism.Footnote ³

Whatever the reason, it is beyond dispute that this issue is hot in courtrooms and classrooms alike. This book's contributors helpfully represent multiple schools of thought and diverse disciplines within the field of legal studies. Richard Garnett, for example, offers a deep philosophical and historical perspective. He recommends framing questions about corporate religious liberty in terms of libertas ecclesiae, that is, “the liberty of the Church.” But this legal concept crystallized at the turn of the last millennium, back when most Europeans could agree on what counted as “the Church.” Its usefulness in an era of bewildering religious pluralism is dubious (39–62). At the other end of the spectrum, Robin West seems plainly bitter that legal rights frustrate what she takes to be the public's right to use diversity in selecting “our nation's ministers, rabbis, and imams” (401; emphasis added).

Perspectives like these will satisfy readers who hunger for a sampling of different intellectual attitudes toward corporate religious liberty. Those wanting more pragmatic fare will also find much that satisfies. For instance, Frederick Mark Gedicks and Rebecca G. Van Tassell outline a brilliant way to use precedent from employee-accommodation law to balance religious exemptions for companies against harm to third parties (323–44). Elizabeth Pollman raises provocative questions about how corporate religious claims are to be vetted given the possibility of differing opinions among corporate stakeholders (149–72). And refreshingly, given the passionate arguments this topic stirs up, Robin Fretwell Wilson thinks corporate religious liberty debates actually provide an occasion for reasoned negotiation (257–84).

One hopes that Wilson is right, because there remain many fascinating corporate religious liberty questions on which jurists, scholars, and the general public should linger. It would not do them justice for any one party to declare complete victory and the public to simply move on. This book gestures at many such questions, but I find three that go directly to the meaning of life in a free democracy: What are the right relationships between the government, the individual, and other social authorities? To what extent is individual conscience properly subjected to institutional judgments? And when and how can collective political aims override personal commitments?

The first question might be the most important one in all of political thought, and this book only deals with it in the particular context of religion. But part of being human is routinely encountering different authorities clamoring for obedience. What about the authority of family vis-à-vis the individual and the state? That question drives thousands upon thousands of child-welfare cases every year. What about the duties imposed by one's cultural heritage? Or by schools and workplaces? Or by irreducibly personal commitments?

A fundamental question about the nature of the state undergirds each of these tensions: Does government “respect presumptively autonomous spheres within which” it ordinarily “refrain[s] from intruding or interfering” (Steven D. Smith, 22)? Or is Robin West right to argue that the state is the organ of “our national community” tasked with pursuing the near-limitless “aspirations of the civil society” (403)? Debates over corporate religious liberty happen within the context of asking just how much shade the state can legitimately cast over the other trees in the thick institutional forest of American society.

Then there is the tension between the consciences of individuals and the judgments of those religious organizations with which they are affiliated. On the one hand, B. Jessie Hill observes that there can be tradeoffs between protecting corporate religious liberty and allowing for individual freedom of conscience: “[P]rotecting institutions often means favoring entrenched institutional hierarchies (and hierarchs) over … individuals” (420). What is more, making this choice can artificially impact institutions themselves, because limiting individual religious choices can effectively freeze religious entities into stances that would otherwise be left “fluid and subject to both internal and external influence” (421). The law must be careful not to prematurely arrest the free development of religions by deferring too readily to present-day official opinions.

On the other hand, Lawrence Sager is right that (1) “individuals in a free society enjoy important rights of autonomy”; (2) “[s]ome of these rights are by their nature public”; (3) some groups enabling people to publicly exercise their rights are “durable and bonded”; and (4) “[a] free society should offer the license of privacy to such groups” (85–86). That is, individual autonomy itself requires institutions where people can associate together in solidarity. More specifically, a free society must recognize that people sometimes exercise their religious liberty by affiliating with hierarchical religious institutions and submitting to communal norms and judgments. How to balance the need for individual freedom with the corollary need to let individuals freely choose obedience is another debate lurking just beneath the surface of corporate religious liberty.

Lastly, there is the similar question of how personal and community judgments relate. Liberalism tends to exalt the individual as the final moral authority (in this world, anyway). But this is not the only option. Should our “aspirational ideal” be e pluribus unum, as West contends? That is, as part of our “project of shared governance,” should we all yield our own commitments and “abide by the outcomes of democratically agreed upon solutions to common problems” (412, 417)? Or is this just the twenty-first-century version of the “democratic centralism” that Vladimir Lenin used to silence dissent?

This debate extends well beyond the covers of this book. Corporate religious liberty is a “condensed symbol”Footnote ⁴ serving as a barometer for much larger differences of opinion. The Rise of Corporate Religious Liberty does a fine job of helping readers both sort out their attitudes toward them, and find narrower paths forward when agreement cannot be reached.