53 San Diego L. Rev. 53 (2016)
Master Metaphors and Double-Coding in the Encounters of Religion and State

handle is hein.journals/sanlr53 and id is 63 raw text is: 













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.' 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.'



    *    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. 1,  1.
    2.  See Perry Dane, Constitutional Law and Religion, 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 ofReligious 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 J. CONTEMP.
LEGAL ISSUES 59, 60-61 (2013).


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