Courts Struggle to Articulate the Limits of Church Autonomy

They know there are limits—but what are they?

This continues a blog series about my new paper, "The Limits of Church Autonomy." My first post (here) introduces the idea of church autonomy. At a high level of generality, church autonomy principles are well settled in the caselaw. And for a core of church autonomy issues (such as the "ministerial exception" cases regarding the employment of ministers), the structure of analysis is increasingly sophisticated.

But there remain a considerable array of issues that are unsettled and hotly debated. The one I want to focus on here is the search for subject matter limits on church autonomy. Courts recognize the value of church autonomy protections for religious institutions but also recognize that not everything done by or within a religious institution can be protected. Yet courts so far have struggled to articulate the limits of church autonomy.

Church autonomy usually functions as a defense to legal claims asserted against religious institutions. The courts widely share a sensible intuition that crimes and some subset of torts are not generally subject to a church-autonomy defense. As the Second Circuit put it, "The minister struck on the head by a falling gargoyle as he is about to enter the church may have an actionable claim"—that is, a claim not subject to church-autonomy defenses. But at the same time, the courts agree that there is a set of torts—notably defamation—that can be defeated by a church autonomy defense. The courts have yet to supply a clear dividing line between those tort (and tort-like) matters that are covered by church autonomy and those that are not.

In cases that held that church-autonomy principles precluded a claim based on hostile workplace under the antidiscrimination rules of Title VII, the courts have sometimes said that there need be no concern that this holding would prevent future tort claims. The Supreme Court too said that its ministerial-exception case, Hosanna-Tabor, was not deciding whether, or to what extent, church autonomy protected religious institutions from claims based on tort or contract.

But if church autonomy did not protect churches from any tort claims, the court would be discarding a substantial body of cases protecting churches from defamation claims arising out of church discipline proceedings. On the other hand, if churches are protected from all tort claims, then that leads to the troubling possibility that churches are immune from civil accountability for even the heinous cases of abuse or harassment taking place under a church's watch.

So far, this has been mostly a theoretical possibility. It's rare that this has come up, for religious institutions often simply refrain from raising church autonomy as a defense in situations involving direct clergy wrongdoing. Churches may recognize on principle that whatever misconduct was at issue was not in fact pursued as part of the church's governance. But even where religious institutions do not try to use a church autonomy defense, critics still understandably worry that church autonomy could be used to shield serious misconduct.

The courts do have resources to articulate limits for church autonomy, as I'll explain in a future post. But they have sometimes pursued approaches that are misguided or confusing.

Across all of the current approaches, there's the problem of simple unpredictability. There has been considerable variation in the approaches courts adopt for articulating limits to church autonomy. And it's hard to know which doctrinal tools a given court will adopt in any particular case.

More specifically, some approaches being employed by lower courts are in tension with the Supreme Court's precedents or inconsistent with the purposes of church-autonomy doctrine. Take a few examples (and check out my law review article for an extended analysis):

1. Neutral Principles:

One approach is to ask whether a given dispute can be resolved with "neutral principles" of law. The problem is that this approach is sometimes applied in ways that conflict with the Supreme Court's approach or are simply incompatible with the continued application of the church autonomy doctrine.

If the court simply asks whether "neutral principles" can resolve a case, the answer will (almost) always be yes. Unless the law targets or discriminates against religion, the law itself will be neutral. As I explain in detail in the paper, this use of neutral principles confuses rather different uses of the concept from different lines of cases. And it is working on a fundamentally different problem than that addressed by the church autonomy principle, which is the idea that the internal affairs of the church are off-limits to civil government. The classic instances of church autonomy protection can appear as exemptions from neutral laws. Defamation law gives way when a church is exercising discipline over a member. Antidiscrimination law gives way to a religious body's right to choose its own clergy. Neutral principles in this form do not provide an outer limit for church autonomy. They eliminate church autonomy.

2. Matters of Religious Doctrine Required to Trigger Church Autonomy:

Some courts seem to assert that religious autonomy is applied only when religious doctrinal issues would be implicated by a court deciding the matter. But if taken literally, this would be flatly inconsistent with the Supreme Court's repeated holdings in the ministerial-exception cases to the effect that the harm of adjudicating internal affairs of a religious organization does not depend on whether the particular issue was based on religious convictions.

A broad statement that church autonomy doctrine applies only when the issue is religious just assumes the central issue: is church governance inherently religious? Maybe the answer is yes, but the courts have been less than clear about it. And if it is so, this would solve one question but raise another: Is a religious institution just automatically exempt whenever it claims that something happening within its community is a matter of internal governance? Surely that cannot be right, especially if we entertain the possibility of unusual or extremist religions that embrace violence.

3. Membership

Another possible way of limiting the scope of the church governance form of church autonomy is to focus on church membership. For at least some claims, courts have said that churches could be liable (that is, not protected by church autonomy) for conduct regarding non-members, but not liable if the same conduct was directed at members.

Yet it cannot be the case that a lack of formal membership divests the church of autonomy protections. Some scholars suggest distilling church autonomy to constructive consent. Still, no court has been willing make consent or association the sole basis of the doctrine. Consent is part of the rationale in the cases, but not the whole of it. Yet exactly how much can be resolved through consent—looking at who is a member of the church, for instance—is still poorly explained in the cases.

In the next post, I'll turn to consider better ways to articulate the limits of church autonomy.