The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm delighted to report that Lael Weinberger (Olin-Searle-Smith Fellow in Law & Lecturer, Harvard Law School) will be guest-blogging this coming week on this forthcoming Notre Dame Law Review article of his; the abstract:
American courts apply "church autonomy doctrine" to protect the self-governance of religious institutions, based on both of the First Amendment's religion clauses. Church autonomy's defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the "sphere sovereignty" theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to articulate them, leaving the case law in a state of ferment.
This article makes the case that, contrary to the critics, church autonomy is limited by an accountability principle, itself resting on the same bases that have been used to defend the most robust version of church autonomy. First, the social pluralist theory of sphere sovereignty does not just defend a place for religious institutions to exercise their own self-governance over religious matters; it also has an important place for the state to hold wrongdoers accountable for civil harms. Second, the deep history of church-state relations that has shaped the pro-church autonomy caselaw and scholarship alike also has rich resources to defend a principle of accountability.
After presenting the theoretical case for the coexistence of autonomy and accountability principles, this article presents a doctrinal roadmap for how courts can locate the limits of church autonomy. Drawing on doctrinal elements already present in the case law, the approach outlined here can be applied to provide accountability and limit church autonomy in key cases—and it can be done without contradicting any existing Supreme Court doctrine.
I much look forward to his posts!