Research & Publications

Notre Dame Law School, Program on Church, State & Society

The Church, State & Society Program encourages scholarship on the role of religious institutions, communities and authorities in the social order and, at the same time, highlights the ways that they affirmatively protect individuals' religious freedom. Our research takes an interdisciplinary approach and capitalizes on the strengths of faculty from both the Law School and other University departments.  

Featured Faculty Research

 

Professor Garnett Examines The Freedom of the Church: (Toward) an Exposition, Translation, and Defense

garnettr

In this article, The Freedom of the Church:  (Toward) an Exposition, Translation, and Defense, Richard Garnett, in addition to summarizing and re-stating claims made in an earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The article’s proposal is that “the freedom of the church” is still an important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’sconstitutional law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

Additional research by Rick Garnett.

 

Professors Carozza and Philpott Explore Democracy and Human Rights in the Catholic Church


  

Daniel Philpott, Professor of Political Science, Director of Center for Civil and Human Rights,  University of Notre Dame,  Program on Church, State & Society

In this book chapter, The Catholic Church, Human Rights and Democracy:  Convergence and Conflict with the Modern State, Paolo Carozza and Daniel Philpott trace the history of the Catholic Church's relationship to the modern state, focusing on the idea of sovereignty and the development of human rights and democracy. It argues that the Catholic Church's relationship to human rights and democracy in the modern world can only be understood as reflective of both a historical convergence and a persistent tension and ambivalence.   

Paolo Carozza

The second part illustrates how this parallel acceptance and tension is manifested in practice, showing that the Church's efforts to advance its teachings on human rights and democracy sometimes succeed and sometimes encounter resistance, both on account of conceptual differences with modern states and international organizations as well as because of obstructing institutional realities.The first part argues for this dual theme in the development of Catholic doctrine, where today, as over the past several centuries, the Church's conception of the common good yields both an embrace of human rights and democracy and a critique of certain aspects of their secular espousal.

Additional research by Daniel Philpott and Paolo Carozza 

Professor Mayer Discusses Tax Benefits, Substantial Burdens, and Institutional Free Exercise


Lloyd Mayer

More than fifty years ago, Congress enacted with little deliberation a prohibition against political campaign intervention for all charities, including churches and other houses of worship. For many years the prohibition lay mostly dormant, invoked only rarely by the government and never against a house of worship for statements made from the pulpit. That period of relative peace is now over, however, as the government has begun a systematic enforcement effort and both religious liberty groups and houses of worship have reacted with increasing defiance. Yet predicating the ultimate result of this conflict is complicated by the shifting sands of free exercise of religion law, including still unsettled issues arising out of the Supreme Court's landmark Employment Division v. Smith decision applying the First Amendment and Congress' enactment of the Religious Freedom Restoration Act (RFRA) in response.

In his article, Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, Professor Mayer navigates that legal landscape, identifying and attempting to answer the open questions that courts may need to resolve to address this almost inevitable conflict. Those questions include the scope of the various exceptions to the rule announced in Smith and what exactly it is that the Religious Freedom Restoration Act restored. This exploration reveals that the First Amendment as currently interpreted by the federal courts is unlikely to prevent the government from applying the prohibition to sermons, but that churches and other houses of worship have a strong argument that RFRA does block the prohibition in the unique context of in-person, in-service sermons. This exploration also uncovers another possible line of argument for houses of worship - that, the First Amendment and the RFRA protect "institutional free exercise" as well as individual free exercise. Building on the existing, but still somewhat incoherent church autonomy doctrine, an institutional free exercise approach would protect all religious communications between the leaders of a house of worship and its members from the reach of the prohibition under both the First Amendment and RFRA.

Additional research by Lloyd Mayer.

Professor Vincent Phillip Muñoz Discusses the Founding Fathers' Understandings of Religious Freedoms and Influential Religious Liberty Cases in Two Books

munoz_1

Did the Founding Fathers intend to build a “wall of separation” between church and state? Are public Ten Commandments displays or the phrase “under God” in the Pledge of Allegiance consistent with the Founders’ understandings of religious freedom? In his book, God and the Founders, Professor Vincent Phillip Muñoz answers these questions by providing new, comprehensive interpretations of James Madison, George Washington, and Thomas Jefferson. By analyzing Madison’s, Washington’s, and Jefferson’s public documents, private writings, and political actions, Muñoz explains the Founders’ competing church-state political philosophies. Muñoz explores how Madison, Washington, and Jefferson agreed and disagreed by showing how their different principles of religious freedom would decide the Supreme Court’s most important First Amendment religion cases. God and the Founders answers the question, “What would the Founders do?” for the most pressing church-state issues of our time, including prayer in public schools, government support of religion, and legal burdens on individual’s religious conscience.

In another related book, Religious Liberty and the American Supreme Court: The Essential Cases and Documents , Professor Muñoz provides carefully edited excerpts from over fifty of the most important Supreme Court landmark cases that have defined religious freedom in America. In addition, he discusses an overview on the constitutional history of the protection of religious liberty in America.   

Additional research by Vincent Phillip Muñoz.

Professor David Campbell Discusses Religious Tolerance in Contemporary America

campbell_david_resize

In his latest research, Religious Tolerance in Contemporary America, Professor David Campbell considers the three potential challenges to religious tolerance that are currently unfolding in American society--the rising number of religiously unaffiliated Americans, Americans' attitudes toward Islam, and the place of Mormonism within the American religious mosaic. Each one represents a challenge to the story of America as a religiously tolerant nation, and will continue to do so in the short-term. However, even though they may currently appear as exceptions to the “rule” of religious tolerance, Professor Campbell states that there is good reason to expect that the unaffiliated, Muslims, and Mormons will eventually prove the rule after all (perhaps sooner than many think). He concludes his article by discussing the long-term implications of religious tolerance that grapples with these questions: Does religious tolerance inevitably mean the end of “prophetic” religion? For any particular religion, is the price of acceptability a loss of religious vitality?

In other related research, in their book American Grace:  How Religion Divides and Unites Us, Professor Campbell and Robert Putnam examine the often puzzling fact of how contemporary American society manages to blend three religious characteristics together: religiously devout, religiously diverse, and religiously tolerant.

Additional research by David Campbell.

 

Recent Faculty Research and Publications

Robert Audi

"Moral Perception," Princeton University Press, 2013.

"The Scientific Study of Religion as a Challenge to Human Dignity," The Monist, July, 2013

"Rationality and Religious Commitment: An Inquiry into Faith and Reason," The Heythrop Journal,  2012

Gerald Bradley

"We Hold These Truths and the Problem of Public Morality," Catholic Social Science Review, Vol. 16, pp. 123-132, 2011, Notre Dame Legal Studies Paper No. 11-26

"The Blaine Amendment of 1876: Harbinger of Secularism," Notre Dame Legal Studies Paper No. 07-02

David Campbell

"Seeking the Promised Land: Mormons and American Politics," David E. Campbell, John C. Green, and J. Quin Monson.  New York: Cambridge University Press, 2014

"Social Networks and Political Participation,"  Annual Review of Political Science 16: 33-48. 2013

"God and Caesar in America: Why Mixing Religion and Politics is Bad for Both," David E. Campbell and Robert D. Putnam, 2012. Foreign Affairs 91(2): 34-43.

"America’s Grace: How a Tolerant Nation Bridges Its Religious Divides," David E. Campbell and Robert D. Putnam. 2011. Political Science Quarterly 126 (4): 611-640.

Paola Carozza

"Italian Constitutional Justice in Global Context," Paolo Carozza, Vittoria Barsotti, Marta Cartabia, and Andrea Simoncini). Oxford University Press, 2016

"The Right and the Good, and the Place of Freedom of Religion in Human Rights," Communio International Catholic Review. 456 (2013).

John Finnis

"A Response to Harel, Hope, and Schwartz," Jerusalem Review of Legal Studies (2013), pp. 1-20; Oxford Legal Studies Research Paper No. 84/2013 ; Notre Dame Legal Studies Paper No. 1444

"Equality and Differences", The H.L.A. Hart Memorial Lecture in the University of Oxford, June 2011; Oxford Legal Studies Research Paper No. 72/2012; Notre Dame Legal Studies Paper No. 12-82

Richard Garnett

"Religious Accommodations and—and Among—Civil Rights: Separation, Toleration, and Accommodation," 88 S. California Law Review 493, 2015

"Accommodation, Establishment, and Freedom of Religion," 67 Vanderbilt Law Review, En Banc 39 (2014). 

"First Amendment Stories" (editor, with Andrew Koppelman) Foundation Press, 2011
 

Brad Gregory

"The Unintended Reformation: How a Religious Revolution Secularized Society," (Belknap Press of Harvard University Press, 2012.

Co-editor, with Alister Chapman and J. R. D. Coffey, "Seeing Things Their Way: Intellectual History and the Return of Religion" (Notre Dame, Ind.: University of Notre Dame Press, 2009).

Lloyd Mayer

"Fragmented Oversight of Nonprofits in the United States: Does It Work?91 Chicago-Kent Law Review 937, 2016

'The Better Part of Valour Is Discretion': Should the IRS Change or Surrender Its Oversight of Tax-Exempt Organizations?" Columbia Journal of Tax Law, 2016 (forthcoming). 

Vincent Phillip Muñoz

“Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” American Political Science Review 110, no. 2, 2016, pp. 369-81

“If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty,” Notre Dame Law Review 91, no. 4, 2016, pp. 1387-1417

“How the Founders Agreed about Religious Freedom but Disagreed about the Separation of Church and State,” with Kevin Vance, in The Wiley Blackwell Companion to Religion and Politics in the U.S., ed. Barbara McGraw (Oxford, UK: John Wiley & Sons, 2016), pp. 85-97 • “Church & State in the Founding-era States” American Political Thought 4, 2015, pp. 1-38

"The Founding Fathers’ Competing Visions for the Proper Separation of Church and State” In Religious Freedom in America: Constitutional Roots and Contemporary Challenges, ed. Allen D. Hertzke, University of Oklahoma Press, 2015, pp. 53-68 (adapted from previously published material)

Mary Keys

"The Power and Peril of Names: Rhetoric and Political Thought in Augustine's City of God, The Oxford Handbook of Rhetoric and Political Theory," Keith Topper and Dilip Gaonkar, editors. Oxford University Press, 2016.

Thomas Noble

"Images, Iconoclasm, and the Carolingians" Philadelphia: University of Pennsylvania Press, 2009.

Mark Noll

"Jesus Christ and the Life of the Mind" Grand Rapids: Eerdmans, 2011

“Evangelicals, Creation, and Scripture: Lessons from a Long History,” Perspectives on Science and Christian Faith 63 (Sept. 2011): 147-58

The Election Sermon: Situating Religion and the Constitution in the Eighteenth Century,DePaul Law Review 59 (Summer 2010): 1223-1248

David Sikkink

“The Panel Study of American Religion and Ethnicity: Background, Methods, and Selected Findings.” Journal for the Scientific Study of Religion. Michael Emerson, David Sikkink, and Adele James. Forthcoming

 “Private Religious Protestant and Catholic Schools in the United States and Canada: Introduction, Overview, and Policy Implications.” Journal of School Choice. Deani Van Pelt, David Sikkink, Ray Pennings, and John Seel. 2012

"Religious School Differences in School Climate and Academic Mission: A Descriptive Overview of School Organization and Student Outcomes," Journal of School Choice, 6(1), 20-39, 2012


Christian Smith

"Religion: What it Is, How it Works, and Why it Still Matters,"  Princeton: Princeton University Press, 2017 forthcoming

"To Flourish or Destruct: A Personalist Theory of Human Goods, Motivations, Failure, and Evil," Chicago. University of Chicago Press, 2015

"The Sacred Project of American Sociology,"  Oxford University Press, 2014

"Building Catholic Higher Education: Unofficial Reflections From and On the University of Notre Dame," Cascade Publishers, 2014

Paul Weithman

"Claims and Capabilities", forthcoming in the Library of Living Philosophers volume on Martha Nussbaum

"On John Rawls’s A Brief Inquiry into the Meaning of Sin and Faith", Journal of Religious Ethics 40, 2012