Master Metaphors and Double-Coding in the Encounters of Religion and State
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Master Metaphors and Double-Coding in
the Encounters of Religion and State
PERRY DANE*
I.
A.
The First Amendment contains two religion clauses.' But, broadly
speaking, it generates three sets of questions.2 The first concerns the sorts
of church-state questions typically understood as raising establishment of
religion concerns. The second concerns the individual rights questions
typically analyzed under the rubric of free exercise of religion.3 And the
third-which has no clause devoted to it as such, but which in some ways
is older and more deeply rooted than the other two-concerns the
institutional autonomy of churches and religious communities.4
* Professor of Law, Rutgers Law School.
1. Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof ... U.S. CONST. amend. I, § 1.
2. See Perry Dane, Constitutional Law andReligion, in A COMPANION TO THE
PHILOSOPHY OF LAW AND LEGAL THEORY 119, 119-31 (Dennis Patterson ed., 2d ed. 2010)
[hereinafter Dane, Constitutional Law]. Cf Arlin M. Adams & William R. Hanlon, Jones
v. Wolf: Church Autonomy and the Religion Clauses of the First Amendment, 128 U. PA.
L. REV. 1291, 1297 (1980) (arguing that religious institutional autonomy is a product of
the interaction of the Free Exercise and Establishment Clauses); Ira C. Lupu & Robert
Tuttle, Gianella Lecture: The Distinctive Place of Religious Entities in Our Constitutional
Order, 47 VILL. L. REV. 37, 50 (2002) (suggesting that an adequate account of religious entities
in our constitutional scheme must be in at least some senses clause-transcendent).
3. See Dane, Constitutional Law, supra note 2, at 122.
4. See Paul Horwitz, Freedom of the Church Without Romance, 21 1. CONTEMP.
LEGAL ISSUES 59, 60-61 (2013).
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Master Metaphors and Double-Coding in the Encounters of Religion and State
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