Ties That Bind? The Questionable Consent Justification for Hosanna-Tabor

In Ties That Bind? The Questionable Consent Justification for Hosanna-Tabor, Professor Jessie Hill responds to Professor Christopher Lund\u27s article Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor, which was recently published in the Northwestern University Law Review. Admiring Lund\u27s effort to weave together a comprehensive understanding of when and to what extent government can regulate religious entities with public laws, Hill nonetheless finds Lund\u27s consent-oriented approach troubling. Hill argues that Lund does not adequately justify religious organizations\u27 assertions of sovereignty over members who seek the protection of public laws. Addressing Lund\u27s argument that believers can always avoid religious authority by withdrawing from a religion at will, Hill points to practical and theoretical difficulties with the consent justification. For example, members may face informal but substantial and coercive pressure not to leave their religious communities. Moreover, the view of religion as purely voluntaristic is a distinctly Protestant, not universal, understanding of religious faith. Finally, even if they consent to join and remain in a religious community, members may not have notice of the doctrines to which they have supposedly consented, because the church\u27s stance on certain legal obligations may be unclear or changing. As a result, it is not always easy to identify who is the dissenter in a religious organization and who, instead, speaks for the church. Ultimately, Hill concludes that, while Lund provides an excellent descriptive assessment of the muddled Establishment Clause doctrine, he does not reach a normatively acceptable justification for it