Accommodating religious institutions: Freedom versus domination?

The issue of whether religious institutions should be regulated according to the same laws and policies that govern the activities of other institutions has arisen in a number of different settings recently. For example, in 2012 the United States Supreme Court ruled that teachers in religious schools were not covered by anti-discrimination laws, and that, as such, teachers with disabilities were not entitled to bring employment discrimination cases against their employers. ¹ Subsequently, a pianist in Texas was also prevented from claiming discrimination on grounds of age and disability, because he was employed by a church. ² In Europe, a similar kind of special treatment has also been extended to schools with a religious ethos in the form of legal exemptions. For example, in Ireland such schools are exempted from anti-discrimination laws in two different ways: they are permitted to discriminate on grounds of religion during admissions and to take ‘action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution’. ³ Similarly, in England and Wales, religious schools are permitted to discriminate in admissions and may seek an exemption from the otherwise statutory requirement to hold a daily act of worship of a broadly Christian character. ⁴ Outside the domain of education, religious institutions have also sought the freedom to regulate their own affairs in otherwise unlawful ways. In the United Kingdom, for example, the 2007 Equality Act (Sexual Orientation) Regulations contained a temporary exemption (now expired) to allow Catholic adoption agencies to refuse to place children with homosexual couples. And probably the most controversial of the recent cases in the United States, in 2014 a closely held, for-profit corporation owned by Christians, and employing over 13,000 people, was granted an exemption from the requirement to offer health plans that cover contraception to employees, as would otherwise have been required by the 2010 Affordable Care Act. ⁵

One thing these very different cases share in common, and which I address in this paper, is that religious accommodation has taken the form of exempting particular institutions from rules that would otherwise apply to them (often, but not always, these are anti-discrimination or civil rights laws). William Galston summarises a powerful reason for extending this kind of special treatment:

While we may regret the exclusion of women from the Catholic priesthood and from the rabbinate of Orthodox Judaism, I take it that we would agree that otherwise binding antidiscrimination laws should not be invoked to end these practices. What blocks the extension of these laws is our belief that religious associations (and perhaps others as well) enjoy considerable authority within their own sphere to determine their own affairs and in so doing to express their understanding of spiritual matters. We can believe this without necessarily endorsing the specific interpretation of gender roles and relations embedded in broader religious commitments. (Galston, 2002: 111)

The article is organised as follows. First, I compare ethos-preserving institutional exemptions with some similar forms of religious accommodation. I argue that this form of accommodation is distinctive because it requires allocating powers and immunities to religious institutions, thereby exposing both members and outsiders to liabilities. Second, I outline two justifications for ethos-preserving institutional exemptions, arguing that neither the principles of freedom of association nor freedom of religion can do the required work, but that combining the pair together can. Third, I describe two forms of domination that institutional exemptions make possible. Fourth, I suggest that we ought to balance institutional autonomy against individual domination by employing a ‘joint governance’ approach.

Religious accommodation and institutional ethos

There are two basic reasons why religious institutions have sought special treatment in the form of exemptions from generally applicable laws (Shorten, 2015). The first is to shelter a religious body from the pressures of market society. To this end, religious institutions have been exempted from taxes on land, real estate, inheritance, donations and trading activities. The second is to insulate religious institutions from the normative pressures of society, enabling them to preserve their distinctive ethos, often in the face of anti-discrimination laws. ⁶ Exemptions from legal rules to facilitate ethos-preservation come in two different varieties. ‘Structure exemptions’ concern how an institution regulates its members and access to membership, such as the so-called ‘ministerial exception’ permitting religious institutions in the United States to opt out of anti-discrimination laws, and the exemptions from anti-discrimination laws that apply to schools with a religious ethos in Britain and Ireland. ‘Purpose exemptions’ concern the activities an institution engages in or the services it provides, such as the exemptions sought by hospitals that refuse to provide abortion services or advice related to contraception, ⁷ and by adoption agencies, bakeries and hotels who refuse to provide services for gays and lesbians. ⁸

Both varieties of ethos-preserving exemption support the efforts of institutions to align their structures and/or purposes with their ethos (Shorten, 2015: 244–249; drawing on Miller, 2010). An institution’s ethos describes the norms, values or attitudes associated with it; an institution’s structure describes the ways in which its roles are defined, assigned and regulated by formal or informal rules; and an institution’s purposes describe its ends or goals. The ethos of an institution will often influence how it regulates its internal affairs, the activities it engages in, and how those activities are carried out. Thus, an institution might adopt a particular structure because of its ethos, such as when a church restricts particular roles to men, or it might adopt particular purposes because of its ethos, such as when a charity with a religious character adopts particular aims that are not adopted by other charities. Ethos-preserving institutional exemptions enable institutions to maintain alignment between their structure, purposes and ethos by permitting them to either regulate themselves or define their purposes in ways that would otherwise be forbidden. If religious institutions are denied exemptions, then their ethos could be subverted by their structures or purposes. For example, unless Islamic or Jewish schools in England and Wales are exempted from the legal requirement to hold a daily act of religious worship of a broadly Christian character, then the structure of those schools will subvert their ethos. Similarly, requiring Catholic adoption agencies to place children with homosexual couples would have (and did) subvert the distinctive ethos of those institutions.

Although public debates about these exemptions often take place against the backdrop of other controversies about religious accommodation, ethos-preserving institutional exemptions raise distinctive challenges. One way to capture this is by comparing them with exemptions from generally applicable laws that are exercised by individuals, such as when Sikhs are permitted to carry kirpans or to ride motorcycles without helmets, or when Jews and Muslims are permitted to slaughter animals without stunning them first (I discuss exemptions like these, both of which are provided for in British law, in Shorten, 2010). As American legal scholar Douglas Laycock has noted, whilst individual exemptions mostly take the form of saying that ‘for religious reasons, I cannot do what the government demands’ (2009: 254), institutional exemptions usually refer to a demand for ‘church autonomy’ – i.e. ‘autonomous management of a religious organization’s internal affairs’ (2009: 254). ⁹ As such, the two kinds of exemption typically refer to different legal incidents. An individual who has a legal right to an exemption always has what Wesley Hohfeld called a liberty or a privilege – they have no duty to refrain from doing something that everyone else has a duty to refrain from doing, or they have no duty to do something that everyone else has a duty to do (Hohfeld, 1919; see also Quong, 2012; Shorten, 2016: 278–281; Wenar, 2005). Some institutional exemptions also refer to liberties or privileges, as when religious institutions are exempted from particular taxes. However, ethos-preserving institutional exemptions mostly refer to two different kinds of legal incident, namely powers and immunities. A power is the ability to alter legal relations, whilst an immunity refers to being protected against, or not liable to, someone else’s power. So, for example, a structure exemption that permits religious schools to discriminate on otherwise unlawful grounds both equips the school with a power to select and enforce a particular policy, and it disables the state from enforcing its preferred policy within the school. Similarly, a purpose exemption that permits an institution to discriminate in the provision of a service permits the institution to decide who may and may not avail the service in question, and the institution itself is immune from having that judgement overridden by another body (the analysis here is based on Shorten, 2015: 250; for a similar account see Lægaard, 2015: 224).

Another difference between individual exemptions and ethos-preserving institutional exemptions is that the latter are more likely to impose significant costs on particular people. For the most part, individual exemptions have little or no effect on people who themselves do not benefit from the exemption in question. This is because individual exemptions are liberties, and for one person, group or institution to have a liberty simply means that no other person, group or institution has a countervailing claim (Jones, 1994: 18). Meanwhile, institutional exemptions often do have an effect on others, since they take the form of powers, and if a person, group or institution has a power, then some other person, group or institution must be liable to it. This difference should not be exaggerated, since individual exemptions are not always costless for non-beneficiaries. ¹⁰ However, in most cases these costs are borne by everyone, and not by specific individuals. ¹¹ Meanwhile, ethos-preserving institutional exemptions often impose significant costs on particular individuals or groups. For example, structure exemptions can be costly for the members or employees of an institution, as Sandra Gowran’s study of education in Ireland suggests, which found that many lesbian, gay and bisexual teachers felt vulnerable because their employers were not prevented from discriminating on grounds of sexuality (Gowran, 2004: 42; see also Gray, 2013; Neary, 2013). Similarly, purpose exemptions can impose burdens on non-members, such as those experienced by lesbian, gay, bisexual, and transgender (LGBT) couples when religious adoption agencies in the UK were permitted to discriminate on grounds of sexuality.

Institutional exemptions and freedom

So, ethos-preserving institutional exemptions take a different form to their individually exercised counterparts, are more likely to impose costs on particular individuals and groups, including both members and outsiders, and consequently raise different normative issues. Whilst political theorists have written extensively about some of the normative issues to which individual exemptions give rise (e.g. Barry, 2001; Bedi, 2007; Bou-Habib, 2006; Calder and Ceva, 2010; Ceva, 2011; Ferretti, 2009; Quong, 2006; Seglow, 2010; Shorten, 2010; Taylor and Maclure, 2011), they have written much less about institutional exemptions (with some notable exceptions, such as Barry, 2001; Cohen, 2013a, 2013b, 2015; Jones, 2015; Levy, 2015). Nevertheless, because much recent political theory has been concerned with the accommodation of group based forms of pluralism, and especially religious diversity, it is possible to construct – at least in broad outline form – some of the different normative arguments that might be employed to both criticise and support this way of accommodating religious institutions.

In earlier work, I suggested that it is difficult, and in many cases impossible, to justify exempting institutions from generally applicable rules on the basis of a group right, held jointly by the members of a religious association (Shorten, 2015). Here, I focus on asking whether ethos-preserving institutional exemptions enlarge or undermine freedom. In this section I shall argue that such exemptions can be defended by appealing to the principles of freedom of association and freedom of religion, whilst in the next section I will argue that they can also give rise to two different kinds of domination. Since domination is sometimes taken to be incompatible with freedom, the upshot is that institutional exemptions are both an ally of, and a threat to, freedom.

The argument I develop in this section has three parts. First, whilst freedom of association can explain why institutions in general ought to be relatively autonomous, it cannot explain why this is the case for religious institutions in particular. Second, although freedom of religion can explain why religious institutions in particular ought to have immunity against secular directives, it cannot explain why the same institutions ought to have the legal powers that would be required for them to control their own affairs. Third, and consequently, if the freedom-based argument for institutional exemptions is to succeed, and if it is concluded that religious institutions have stronger grounds for exemptions than other kinds of institutions, then it will need to combine appeals to both principles.

Let us start with the principle of freedom of association, which says that people should have as much freedom as possible when it comes to settling on terms of association. Because institutions are assemblages of formal and informal rules governing the interactions of people who share collective goals, this principle implies that individuals who choose to associate with one another ought also to be free to create institutions for their own ends and to organise them according to regulations, procedures and norms they have selected for themselves. Correspondingly, the liberal state ought to refrain from interfering in the structures and purposes of institutions, and people should be left alone to decide whether and how they wish to associate with one another.

The associative case in support of institutional autonomy proceeds directly from a concern with individual freedom, and it is that people ought to be at liberty to jointly submit themselves to any set of rules, and to associate and disassociate, on their own terms. As Jacob Levy puts it: ‘what individuals are free to do singly, they ought to be free to do in association with one another; and the rights that they are free to waive, they ought to be free to waive as against groups of which they are members’ (2015: 42). This may make it seem as if the freedom of institutions to regulate their own conduct is derived directly from the consent of members, and in a sense this is true – institutions are created by members, and the discretion allocated to institutions over their structures and purposes derives from the freedom of members to associate on their own terms. However, an institution also has a real existence separate to the individuals who compose it. For example, members of a religious institution who change their beliefs over time may come to find the structure or purposes of that institution to be unsatisfactory: constraints they once happily accepted, such as uniform or morality codes, now strike them as shackles. From the perspective of freedom of association, such situations are philosophically simple, even if they are politically contentious. Since individuals must retain the liberty to disassociate, they are correspondingly free to accept or to reject whatever authority institutions have over them. So, individuals who come to reject the teachings of a church are free to leave, just as the institution itself is free to require this of them, through excommunication and the like.

The principle of freedom of association does not generate a case for unfettered institutional autonomy, and it requires such autonomy to be limited in at least three ways. First, since membership must be voluntary, the costs of leaving an institution must not be excessively high. Of course, leaving a religious community will nearly always be burdensome, and many of these costs neither can, nor should, be ameliorated, since they are ‘intrinsic to the termination of membership’ or ‘arise as a consequence of the exercise of their right of association by those who remain’ (Barry, 2001: 158). However, if institutions (or their members) impose excessive costs on those wishing to leave, such as social humiliation or financial penalties, then this will be sufficient to cast doubt upon the voluntariness of an association in the first place. Second, although the freedom to associate also implies the freedom to exclude, there are limits to how this freedom can legitimately be exercised. For example, according to Stuart White, there is a presumptive case against people being legitimately excluded from associations when doing so will deprive them of important economic, participatory or dignity-conferring opportunities (White, 1997). Third, although people ought to be free to create institutions for their own ends, those institutions are not free to act howsoever they please – like individuals they are subject to moral constraints in their dealings with other moral agents. Thus, for example, freedom of association does not permit people to jointly create institutions to facilitate violence against, or theft from, outsiders.

Regardless of how these three constraints are formulated, the principle of freedom of association does not provide any special reasons to accommodate the efforts of religious institutions to maintain alignment between structure, purposes and ethos which, as I noted earlier, is one of the reasons often given for ethos-preserving exemptions. Indeed, institutional ethos does no real work within this argument, and it plays no justificatory role in explaining why institutions should be substantively unconstrained with respect to their internal rules or goals. Thus although freedom of association can explain why voluntary associations in general ought to have discretion over their institutional structures and purposes, it does not contain any special reasons to accommodate religious institutions. In that respect, it is at odds with much of the rhetoric that surrounds religious accommodation claims.

By contrast, the freedom of religion argument fits better with much of this rhetoric, since it holds that ‘religious institutions have free exercise rights’ (Laycock, 1981: 1386; cf Schragger and Schwartzman, 2016). Central here is the idea that religious institutions themselves have rights to religious freedom which, unlike free association rights, are not derived from the rights of their members. From this, it is concluded that if freedom of religion is to be sustained within a society, then religious institutions ought to be free to direct their own affairs without interference, and separation of church and state requires the state to defer to the attempts of religious institutions to maintain alignment amongst their ethos, structure and purposes.

Proponents of this argument have canvassed a variety of different explanations about why religious institutions, and not other kinds of institutions, are entitled to this strong form of autonomy. Some of these refer to conditions that are distinctive to the United States, such Michael McConnell’s claim that this status is conferred upon religion by the First Amendment (McConnell, 1992: 722). Others rely on historical claims, such as the argument that, since modern states emerged from an earlier structure of religious authority on which their own claim to authority depended, then the liberal democratic state oversteps the terms of its founding agreement by claiming authority over the church (Smith, 2009). Regardless of the historical merits of this thesis, however, it seems an unlikely candidate for supporting the normative case for institutional autonomy, since it depends upon the claim that people today are bound by agreements made by past generations under far from ideal circumstances. Another argument is that religious institutions have a special place in the liberal constitutional order because churches play an essential role when it comes to securing the institution of limited government. For example, according to their defenders religious institutions can serve as a ‘counterweight to the state’ (Horwitz, 2009: 83) and ‘provide a buffer that is the best protection for personal freedom’ (Garvey, 1996: 153). However, even if this is true, it is only contingently so, since there is nothing intrinsic to religious institutions that makes them uniquely able to perform this function.

According to Jean Cohen, a critic of this view, the ‘heart’ of the case for believing that ‘religion requires unique constitutional treatment’ is that ‘religious claims – if true – are prior to and of greater dignity than the claims of the state’ (2015: 188). She cites McConnell as a defender of this claim, who writes that, ‘while unable to establish a national religion, the liberal state also cannot reject in principle the possibility that a religion may be true; and if true, religious claims are of a higher order than anything in statecraft’ (McConnell, 1985: 15). The salient point here is not that the state lacks the epistemic competence to pronounce on the truth or falsity of religious doctrine, because in that respect religion is certainly not unique. Rather, it is that, if the liberal state is disbarred from making judgements about the truth or falsity of religion, then it cannot deny the claims of religious believers to be subject to a higher authority.

By the lights of this argument, then, the normative justification for ethos-preserving institutional exemptions arises out of the deference owed by the liberal state to religion which, in turn, has its basis in the principled inability of the liberal state to pass judgement on the merits of particular religious doctrines. If sound, this line of argument potentially explains why religious institutions should have immunities against temporal authorities, thereby explaining why governments ought to be disabled from imposing particular structures or purposes upon religious institutions. In the final section of this paper I will suggest that this conclusion is far too strong, but even supposing that it is true, this version of the freedom of religion argument faces an even more immediate difficulty, which is that it cannot explain how the liberal state could recognise any other body as being entitled to direct institutional structures or purposes. After all, if the state is unable to judge matters religious, it cannot authoritatively pronounce on who is entitled to make religious judgements.

What this amounts to is that freedom of religion alone – at least as construed above – cannot explain why the liberal state ought to recognise any particular individual or group as being entitled to adopt particular policies, rules or procedures concerning institutional structures or purposes. As such, it cannot explain why the state ought to recognise a particular institution as having the right to govern itself, even if it can explain why the institution ought not to be governed by the state. Consequently, this version of the principle of religious freedom cannot justify institutional exemptions, because institutional exemptions are combinations of powers and immunities. The solution to this predicament is clear enough, namely that the proponent of institutional exemptions must fall back upon the freedom of association argument. That argument can explain why particular individuals or groups are entitled to make decisions about the structures and purposes of institutions, and it says that they are entitled to do so because the members of those institutions have so authorised them. ¹² So, by combining the two arguments together the advocate of institutional exemptions can plausibly maintain their basic claim – namely that religious institutions have a right to direct their own affairs without interference.

Institutional exemptions and domination

In this section I explore a contrasting line of argument which says that, regardless of their normative justification, institutional exemptions can leave members vulnerable to domination. Domination describes an asymmetric social relationship characterised by two necessary and jointly sufficient conditions – dependency and control. Dependency arises when one party to a relationship perceives the costs of exit to be high, for example because they lack attractive outside options or fear sanctions in the event of leaving (Lovett, 2010: 34–39). Meanwhile, control refers to ability to arbitrarily worsen someone’s ‘choice situation’, for instance by changing the options available to them, or by reducing the payoffs associated with those options (Pettit, 1997: 52–53, 2012: 50–56, 152–153). ¹³ So, domination occurs when a dominating party has a power to arbitrarily worsen the options available to another – dependent – party.

The basic mechanism by which ethos-preserving institutional exemptions facilitate the domination of members is by exposing them to liabilities – i.e. potential interferences. To see how this arises, consider a religious employer who is permitted to discriminate on grounds of religion or belief. This institution is both immune from laws that would ordinarily prohibit discrimination of this kind and it has the power to select and enforce an alternative – discriminatory – policy. In turn, this power is one that employees and job applicants are liable to, since the institution is able to control the options that are available to them. Crucially, had the institution lacked an exemption right, then the employees and job applicants would not be exposed to this particular liability (though, of course, they would be exposed to others).

So, institutional exemptions make members vulnerable to potential interferences. Members are not, however, dominated by virtue of these liabilities, since for domination to arise it must also be the case that the institution can worsen the choice situation of members on an arbitrary basis. Exemptions can enable institutions to do this in two different ways: either by empowering an institution to apply its regulations on an arbitrary basis, such as by flouting established rules or by inventing rules at whim (procedural domination), or by enabling it to apply rules that have not been chosen with reference to the interests or opinions of those who are subject to them (rule domination). For example, an exemption that empowers a religious institution to terminate employment in the event of ethos-undermining conduct might make some of its employees vulnerable to rule domination (if the relevant policy does not track their interests) or procedural domination (if the relevant policy is applied inconsistently).

Although both procedural and rule domination can occur within any kind of voluntary association, three considerations suggest that religious institutions will be especially prone to them. First, members of religious institutions often perceive the costs of exit to be particularly high, since these institutions typically have a monopoly over options that people value. For example, many Catholics depend on the Catholic Church, since it can provide options that no other institution can. ¹⁴ Second, members of religious institutions are frequently unable to challenge institutional rules and their application. For example, female members of patriarchal religious institutions may lack the social recognition required for them to effectively challenge discriminatory rules or the inconsistent application of such rules. Third, because religious institutions claim authority over a wide sphere of human activities, preserving institutional ethos may require the regulation of intimate and personal conduct. ¹⁵ For example, in the Flynn case in Ireland, an unmarried pregnant teacher was removed from her post on the grounds of having undermined the religious ethos of her school. ¹⁶

Institutional autonomy without domination

The most feasible strategy for reducing domination within religious institutions is to empower members against ‘alien control’ (Pettit, 2008: 106) – i.e. to ensure that institutions are forced to take members’ interests and opinions into account when formulating and applying internal rules. In this final section I ask both whether this is permissible and how it might be achieved.

According to a theory that has been canvassed widely in recent American legal scholarship, empowering the members of religious institutions against arbitrary interferences is impermissible, since religious associations rightfully have unfettered jurisdiction over their own affairs. This theory depends on a strong interpretation of the argument outlined in the ‘Institutional exemptions and freedom’ section, which amounts to the claim that the state ought to wholly defer to religious authorities in matters of institutional self-governance because it lacks the competence to interfere in the affairs of religious groups. ¹⁷ As such, the wall separating church and state must be thick and impermeable.

This theory has been convincingly criticised elsewhere (Cohen, 2015; Schragger and Schwartzman, 2013). However, it is important for my purposes since its primary shortcoming also helps to explain why state interference in the affairs of religious institutions is permissible. This shortcoming is that the theory entirely neglects the costs of institutional autonomy for outsiders, such as those discussed in ‘Religious accommodation and institutional ethos’ section. However, to the extent that outsiders are vulnerable to decisions about the structures and purposes of institutions, they also have interests in those decisions, and those interests may be of sufficient weight to override the interests of members in institutional autonomy. In turn, one way to vindicate the interests of outsiders is to make legal exemptions for religious institutions conditional on their attracting the support of both members and outsiders, for instance by way of a dialogue involving both the religious institution and wider society. Such a dialogue, of course, may lead a religious institution to decide to redefine its structures or purposes, ¹⁸ or it may lead outsiders to appreciate that the costs of accommodating a religious association are worth paying. In the latter case, it will be entirely reasonable for outsiders make their support for an exemption conditional on the inclusion of legal mechanisms intended to empower the members of religious institutions against arbitrary interference.

This proposal is consistent with the model of ‘joint governance’, suggested in a different but related context by Ayelet Shachar (2001). Joint governance allocates a group substantial (but incomplete) jurisdictional autonomy over a particular legal or social domain, without rigidly ‘fixing’ the balance of power between religious groups and the state, and instead allowing for the competences of different authorities to be a matter of ongoing negotiation. Although joint governance falls well short of allocating unfettered dominion to religious institutions over their own affairs, it does not entirely suppress the freedoms of association and religion, since it still allows for considerable institutional autonomy.

Shachar’s preferred model of joint governance is one of ‘transformative accommodation’, which regards the conflict between religious and secular authorities as ‘an occasion for encouraging each entity to become more responsive to all its constituents’ (2001: 117). Responsivity is encouraged in the first instance by sensitively dividing jurisdictional authority so that the responsibility for different ‘sub-matters’ of a given social arena are dispersed amongst different groups. The aim of doing so is to force religious groups and the state to co-operate, since legal disputes in a particular social arena are solvable only when different sub-matters are addressed together (Shachar, 2001: 119). In turn, Shachar suggests that the rivalries to which this will inevitably give rise ought to be managed by a ‘no-monopoly rule’, so that ‘neither the group nor the state can ever acquire exclusive control over the contested social arena’ (Shachar, 2001: 121). Since neither side can fully override the jurisdictional authority of the other, they are forced to seek an agreement.

For example, suppose that within the arena of education, jurisdictional authority over school ethos is allocated to religious groups, whilst authority over credentialing and appointing teaching staff is held by the state. This would mean that neither church nor state has complete authority over the substantive issue of whether teachers may be discriminated against on grounds of ethos-preservation. Since the issue might be decided either way, then it may seem as if this will have little effect on whether teachers are vulnerable to arbitrary interferences. Shachar’s twist, however, is to empower members by providing them with ‘reversal points’, giving them the opportunity to ‘opt out’ of the jurisdiction of one of the two power holders (i.e. group or state). Teachers unsatisfied with whatever policy has been adopted will therefore be in a better position to bring about a change if their voice is backed by a ‘credible threat of exit’ (Shachar, 2001: 124). So, for example, an ethos-preserving exemption that permits a religious school to discriminate on grounds of sexuality or belief might be made conditional on teachers having adequate alternative employment options available to them.

An arrangement along the lines suggested will ensure that religious groups retain substantial powers and immunities, but it will also provide individual members with the opportunity to contest the power of religious groups, thereby incentivising groups to change their practices. In effect, Shachar’s transformative accommodation aims to reduce one of the necessary conditions for domination (dependency) in order to eliminate the other (control). Dependency is not entirely eliminated because members will always rely upon religious institutions to provide them with valued options over which the institution has a monopoly. However, it can be reduced by improving the bargaining position of members, such as by improving their outside options, and this is something that outsiders can rightfully insist upon when negotiating over institutional exemptions.

This solution will satisfy the requirements of freedom of association because it respects the freedom of people to associate and disassociate on their own terms. At the same time, it will also satisfy the demands of religious freedom, since the state cannot direct the group to adopt particular structures or purposes. However, although it offers the prospect of self-legislation to religious groups, it does not offer them unlimited or sovereign powers. Consequently, not only is it much less permissive than rival approaches, but it also provides for the possibility of accommodating groups on a contingent basis, subject to their upholding minimal standards. ¹⁹

Conclusion

In this paper I have demonstrated that legal exemptions for religious institutions often involve equipping them with a combination of powers and immunities (see ‘Religious accommodation and institutional ethos’ section). The principle of freedom of religion potentially explains why religious institutions are entitled to immunities, whilst the principle of freedom of association potentially explains why they are entitled to powers (‘Institutional exemptions and freedom’ section). Although institutional exemptions expose members of religious institutions to domination (‘Institutional exemptions and domination’ section), it is both permissible and feasible for the liberal state to protect members, for example by reducing the dependency of members on institutions and thereby empowering them to check institutional power (‘Institutional autonomy without domination’ section).

Although institutional autonomy has often been presented as an all-or-nothing affair, I have argued that it might be preferable to treat it as a manifestation of joint governance, whereby authority over religious institutions is shared between group and state. Both approaches are compatible with honouring the freedoms of religion and association, but only the joint governance approach is compatible with empowering members against arbitrary interferences. Whether this qualifies as a reason in favour of the joint governance approach will depend, amongst other things, on the extent to which religious institutions are believed to be implicated in domination.