Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
I have long benefitted from Professor Garnett’s work in the area of law and religion. Given the sometimes contentious climate in and out of the academy, it is worth highlighting the tone of his writing as well as its substance. Both are admirable.
One of Professor Garnett’s core scholarly pursuits has been to argue for a greater prominence for the “freedom of the church” within constitutional scholarship and practice. I share many of his normative intuitions. I value the prominent role of religion generally and churches specifically in our country’s law and history. Many of our most important institutions (including hospitals, universities, and social service organizations) would not be what they are today without the churches that birthed and nurtured them—a fact too often ignored in the highly charged rhetoric of our time. And Professor Garnett is surely right that freedom of religion “is not only lived and experienced in and through institutions, it is also protected, nourished, and facilitated by them.” Thoreau might get a lot of play in the pages of law reviews, but most Americans who value religion don’t get there from a walk around the pond. For all of these reasons, there is much appealing about Professor Garnett’s emphasis on religious institutions and the freedom of the church.
Still, I wonder about two aspects of the workability of Professor Garnett’s proposal: scope and translation. Let me begin with scope. Professor Garnett suggests that we might understand the freedom of the church “less as a rule, standard, or doctrine” and “more like a background or animating value, even a mood.” It’s not clear to me what this claim means. How does an animating value or a mood translate to actual cases and controversies? Which religious institutions prevail against which competing claims, and why?
Consider, by way of contrast, Professor Garnett’s argument that “we live under a written Constitution that ‘singles out’ religion and we inhabit a tradition in which ‘church’ and ‘state’ have, in a special way, cooperated and contended.” This appeal, rooted in the First Amendment, seems exactly right to me. The Supreme Court has, for better or for worse—no, actually just for worse—gutted much of that right. But even in its enervated state, I can understand how courts and commentators would address a constitutional claim grounded in the free exercise right. And, along with Professor Garnett, I think that critics who argue that religion is “not special” have overstated their case by understating the significance of text and history to our tradition of American constitutionalism.
But if the constitutional argument can get us to cases and doctrine, I’m left wondering why we need an additional—and fundamentally theological—argument like the freedom of the church. This brings me to my second, and perhaps more basic question about the freedom of the church: its prospect of translation.  Professor Garnett acknowledges the risk of the freedom of the church “falling into anachronism.” He suggests that “there is a need for translation, not transplantation, of this idea.” I have some worries about the constitutional limits of translation, but I worry even more about the theological limits.
Consider first the challenge of constitutional translation. On this point, it is not hard to see how some translation is possible. Basic anti-establishment principles will extend the concept across different faith traditions to similarly situated institutions like mosques, synagogues, and temples. There is also a second kind of translation, which we see from the Lutheran school at issue in Hosanna-Tabor v. EEOC: religious organizations and groups that are not formally houses of worship can fall under something like the freedom of the church. We can envision extending the concept to other institutional forms like soup kitchens and outreach ministries.
But we will undoubtedly see more contested arguments about larger and more powerful institutions that are formally tied to churches, most notably universities and hospitals. And those arguments will introduce a conceptual fuzziness as to why the freedom of the church might protect an elementary school but not a university.
There is a related challenge for religious organizations unaffiliated with churches, most notably in the emergence within American evangelicalism of “parachurch groups only loosely connected to an ecclesiastical structure.”  Is it possible to extend the constitutional protections of the freedom of the church to religious institutions that expressly disavow the label of “church”? The answer seems less obvious to me as a matter of constitutional analogizing than extending the concept to other faiths and sub-institutions.
Professor Garnett may nevertheless have some reason for optimism. Hosanna-Tabor suggests that something like the freedom of the church has moved into legal doctrine. As the Court’s unanimous opinion concludes: “The church must be free to choose those who will guide it on its way.” This assertion sounds somewhat promising as a matter of constitutional translation. It is perhaps more worrisome as a matter of theological translation.
The freedom of the church is first and foremost a theological argument. Some theological arguments are at least partially translatable; indeed, we have seen examples of this kind of translation unfold within American law through concepts like conscience and forgiveness. But other theological concepts are less susceptible to translation from the theological perspectives out of which they emerge.
The strong claims that undergird the freedom of the church depend upon an ecclesiology that may not be generalizable to “religious institution” or “religious organization.” Consider, for example, Professor Garnett’s claim elsewhere that “[t]he ‘freedom of the church’ idea presumes and proposes that religion is special—or more precisely, that religious institutions, communities, and authorities are and should be differentiated both from political authorities and from non-state institutions and voluntary associations generally.”  The problem with this argument is that the freedom of the church has little to say about “religious institutions, communities, and authorities.” Its theological anchor is an ontological claim about the reality of Jesus Christ embodied in the church on earth, which presumes nothing about the special nature of “religion.” Indeed, Catholic doctrine is even more specific about the nature of the church, and may pose an even greater challenge to an ecumenical interpretation of the church’s freedom. Professor Garnett seems oddly dismissive of this theological claim in acknowledging “the reality of religious difference and diversity” in which “there is no one ‘church.’”
Professor Garnett’s Catholic account might also benefit from a friendly (though serious) caution from his Protestant brethren, as illustrated by the Swiss theologian Karl Barth’s understanding of the Barmen Declaration. During the Second World War, widespread endorsements of Barmen “tended to focus on the threat to ‘freedom of conscience’ posed by the state and the brutal methods of the nazified church leadership, rather than the positive witness of confessing the faith.”  Barth rejected these abstractions, arguing that Barmen was “not about the freedom, but about the substance, of the Church.”  To Christians in Britain, Barth wrote that “the only real help, apart from your prayers, which you can render the German Church, would consist in this: in your declaration, with as much publicity and solemnity as was done in Barmen itself that in your conviction . . . [the Declaration is] also your confession of faith.”  For Barth, the Declaration did not need to be translated into the secular language of freedom of “conscience” or “religion”: confessing the lordship of Christ was a radical political act in itself.
In other words, Barmen may resist translation out of fidelity to its proclamation. And, so too might the freedom of the church. Stanley Hauerwas warns of the danger of ignoring this kind of theological resistance to translation: “In the attempt to make Christianity intelligible within the epistemological conceits of modernity theologians have been intent on showing that what we believe as Christians is not that different than what those who are not Christians believe.”  The cost of this generalizing might be a “domestication” in which “the church is understood to be no more than a ‘voluntary association’ of like-minded individuals.” 
Professor Garnett has ably shepherded the concept of the freedom of the church into contemporary scholarship at the intersection of political theology and constitutional law. And the Supreme Court’s Hosanna-Tabor decision all but ensures its continued significance to the debates surrounding our understanding of religious liberty. Whether the freedom of the church will fully translate into constitutional doctrine is another matter—and the limits of translation may ultimately be theological as much as they are constitutional.
 My reflections here are adapted from John D. Inazu, The Freedom of the Church (New Revised Standard Version), 21 J. Contemp. Legal Issues 335 (2013).
 Mark A. Noll & Carolyn Nystrom, Is the Reformation over? An Evangelical Assessment of Contemporary Roman Catholicism 85–86 (2005).
 Richard W. Garnett, “The Freedom of the Church”: (Towards) An Exposition, Translation, and Defense, 21 J. Contemp. Legal Issues 33, 49 (2013).
 Keith Clements, Barmen and the Ecumenical Movement, 61 Ecumenical Review 6 (2009).
 Stanley Hauerwas, Church Matters, in Approaching the End: Eschatological Reflections on Church, Politics, and Life. (2013)
 Id. at 2-3. In my view, the more generalizable right of assembly (whose political and theological history encompasses both churches and non-church groups) can offer constitutional protections to churches alongside other groups without “domesticating” the theological meaning of church in the way that broadening the “freedom of the church” to include non-churches would necessarily do. See generally, John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (2012).