The Volokh Conspiracy
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What Is Church Autonomy?
A primer on a religious liberty issue that went from a backwater to a hot topic in the last decade.
Thanks to Eugene and coconspirators for having me here this week writing about my recent work on church autonomy law. I have a new paper (forthcoming in the Notre Dame Law Review) about the limits of the church autonomy doctrine—responding, in part, to areas of confusion that have arisen in lower courts applying church autonomy doctrine. I'll use some future blog posts this week to get into those issues. Before getting into that, I want to step back to reflect on what's going on in the field of "church autonomy doctrine" and how this issue has risen in significance in the last decade.
The "church autonomy doctrine" is a legal principle of protection for the internal self-governance of religious organizations. (You can find a longer version of this explanation, with more citations, in the law review article.) Church autonomy doctrine protects religious institutions from state control, ensuring that religious organizations can control their own beliefs and internal affairs, or ensuring that the state does not establish a religion. The basics are fairly intuitive: Americans don't want the state telling religious bodies whom it can or can't retain as a minister, rabbi, or imam, or endorsing the theological distinctives of one side of a church split when the competing factions disagree about what counts as the "true" form of a given faith.
The church autonomy doctrine applies to all religious institutions, not just churches. While it could be termed "religious autonomy" (or more precisely, autonomy for religious institutions), "church autonomy" remains the most used term in the courts for the body of law that has developed about the internal affairs of religious organizations.
The church autonomy doctrine is based on both of the religion clauses of the First Amendment. The courts have based church autonomy on both religion clauses of the First Amendment. Interfering with the internal governance of a religious institution would violate religious liberty (free exercise) and establish a religion by allowing the state to dictate the conduct of the religious body. Scholars disagree about whether the Establishment Clause or the Free Exercise Clause provides the better foundation, or whether it is best to view church autonomy as the combined effect of the religion clauses, as the Supreme Court has said. But in any case, church autonomy ensures the institutional separation of church and state.
Broadly speaking, this doctrine has two main applications. First, courts should not decide matters that require a particular position on religious doctrine or belief. So if the court is asked to decide whether a member was wrongfully expelled on the basis of the church's doctrinal standards, the court should decline. Second, courts should not decide matters that interfere with the religious institution's internal governance. As the Supreme Court said in its 2019 decision of Our Lady of Guadalupe School, this "protect[s] their autonomy with respect to internal management decisions that are essential to the institution's central mission." This includes selecting ministers, which is known as the "ministerial exception" from employment nondiscrimination law. It also has been long understood to protect churches from defamation lawsuits challenging church discipline proceedings.
Some courts and commentators speak as though there are several different but related doctrines here (church autonomy different from ministerial exception different from ecclesiastical abstention). But I think the better way to think of this is as a single overarching principle—church autonomy—applied in different contexts. That's certainly how the Supreme Court has described the issue.
Church autonomy is not new. One can find a common-law church autonomy principle being articulated by the Supreme Court as early as 1872, even before the First Amendment was applied against the states. (The early history of American church autonomy is fascinating, but I'll hold back on that for the present—that's the subject of another project I have underway!) Church autonomy principles were thoroughly constitutionalized (that is, articulated as a matter of constitutional law) in a 1952 decision.
But for a long time, church autonomy remained a backwater. The paradigmatic Free Exercise religious liberty case involved an individual seeking to follow the dictates of individual conscience. The paradigm cases for Establishment Clause principles were government religious practices—school prayer, Ten Commandments in government buildings, and the like.
I first became interested in church autonomy cases when I was in college. My friend Bob Renaud and I noticed that the church autonomy cases engaged with church-state issues that had been historically very important in the history of Christian theology, about the formal institutional authority of church and state. We wrote an article about this. (It was my first law review publication—still in college and not quite knowing how law reviews worked, I was grateful to the law review editors who took a chance on us!) As I finished college, worked, came back to graduate school, and pursued other projects, I kept an eye on church autonomy. And over time, it took on more and more importance.
Over the last decade, most of the Supreme Court's high-profile cases about religious liberty involved religious institutions, from church employment decisions in Hosanna Tabor, to corporate conscience in Hobby Lobby, to religious social services in Fulton. The idea that the solitary individual conscience was the paradigm case for First Amendment religion cases has shifted considerably over the last decade.
The Supreme Court addressed church autonomy issues for the first time in years in Hosanna Tabor, making the church autonomy principle as strong as it has ever been. While controversies swirled over the best way to interpret and apply the Free Exercise clause to conscience claims, religious institutions had robust legal protections for their domain of internal autonomy. Zoë Robinson has perceptively called this decade an era of "religious institutionalism."
Church autonomy is no longer a backwater. It has taken its place as one of the central Religion Clause doctrines, regularly litigated in the courts. But with that as the case, it's particularly important to reflect on the scope and limits of church autonomy. Is church autonomy a praiseworthy principle of religious liberty that appropriately recognizes the communal nature of so much religious faith and practice? Or does it threaten (as its critics charge) to place religious institutions above the law in troubling ways? That's a question I'll take up in the next post.
