The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This continues a blog series about my new paper, "The Limits of Church Autonomy." My first post (here) introduces the idea of church autonomy. The second (here) describes areas of confusion among lower courts in articulating the limits of church autonomy.
Some critics think that the courts are confused because they're engaged in a hopeless mission. They would say that church autonomy doctrine is just inherently in tension with the rule of law—that the doctrine places religious institutions above the law. This critique has a theoretical component—that the high-level theories of church autonomy are incompatible with the existence of any kind of accountability for wrongdoing in churches.
This post is really a response to this high-level theory critique. I think it's possible to protect the internal affairs of religious institutions without protecting anything and everything done within a church. In my paper, I make the case that church autonomy coexists alongside a principle of accountability for religious institutions. The goal is not just to show that accountability is a worthy objective. It is also to argue that autonomy and accountability ought to go together even on the very strongest forms of church autonomy. And it is to show that both have been deeply intertwined as a matter of theory and of history. (The paper also suggests ways to operationalize the accountability principle in doctrine that courts can apply—a subject that will have to wait for the next post.)
Let's start with high-level theory. Social pluralist theories have been used to defend the most expansive versions of church autonomy. The idea is simply that we should conceptualize society as consisting of multiple social institutions, with the state as one among many. Church autonomy can be defended as a recognition that the state is not omnicompetent, that religious institutions constitute a valuable and important part of the social order. This is sometimes described as "sphere sovereignty"—that different social spheres should have a kind of sovereignty to pursue their own ends. The language of sphere sovereignty appears not only in some of the church autonomy literature but also occasionally in the courts as well. This tends to grate on the skeptics of broad church autonomy protections. It is often assumed that the "sphere sovereignty" model of church autonomy is the conceptualization least amenable to an accountability principle binding the church. If a "sphere" like religious institutions is "sovereign" within its domain, doesn't that mean that there's no way for another sphere (the state) to intervene even in the case of (say) clergy abuse? And if so, isn't that troubling (perhaps discrediting of church autonomy)? I want to show that, even accepting a set of strong theoretical commitments to a "sphere sovereignty" theory of religious institutions, there is nonetheless an important place for accountability.
What I want to emphasize is that sphere sovereignty need not lead to a reductio of church autonomy. Often, the emphasis in the church autonomy literature (and case law) is on the independence of the church from the state. Taken alone, this can give the misleading impression that it's all about autonomy with little or no place for accountability. But sphere sovereignty does not ineluctably result in hermetically sealed spheres. The sovereignty of human spheres is relative. The idea of separating the spheres is not just to shield the spheres from each other, but also to check each other. For this to happen, the spheres must be interactive. The state has a role to play.
To put this in theological terms: The church, for its part, is susceptible to sin, as is the state. If this sin implicates the authority of the state, then it is by no means appropriate for the state to stand back as if it had no authority to engage. The state can and should use its temporal sanctions against wrongdoers in its domain. That includes those within the houses of worship in its jurisdiction. There is no good reason to say that the sphere of the state is artificially bounded by the fact that a matter against its laws happens within a church.
At this point surely some are ready to object—what is the state's domain? Isn't this question begging? We'll get to a more concrete effort at distinguishing the subject matter of church and state in the next post. For the present the point is simply that a very strong theory of church autonomy based on sphere sovereignty (or something like it) need not—and does not—logically lead to the church existing above the law and outside accountability for civil wrongs.
I also offer an argument for the complementary relationship of church autonomy and accountability in historical terms. In church autonomy cases, the Supreme Court and some lower courts have looked deep into the medieval history of church-state relations to interpret the evolution of church-state relations in the common law and then, subsequently, in the American constitutional order. As a historian, I have some ambivalence about details of this "deep history" approach to church autonomy. But just taking it as a given that the courts see this history as relevant, I think there's a fascinating historical episode that suggests the importance of the church autonomy/accountability relationship.
One of the most telling transitions for accountability purposes was the evolution of the law of benefit of clergy. The English criminal law rule initially established which court, ecclesiastical or common law, would handle a felony. Clergy who committed felonies were committed to the ecclesiastical court (and receive considerable leniency), while everyone else would be tried in a common-law court. The English public was periodically outraged by clerics getting off lightly for serious crimes and began to chip away at benefit of clergy. The Reformation significantly reshaped the benefit of clergy. Reformation theology rejected the idea that the essential jurisdictional fact was a person's status, clergy versus laity. Luther famously argued that all Christians have a calling to serve God in whatever (non-sinful) vocation they assume. This had implications for ecclesiastical jurisdiction. The central issue was now conduct rather than status. What mattered was whether particular substantive issues—theft, marriage, baptism—belonged in the jurisdiction of the church or of the state.
The lessons I suggest taking from this history are (1) accountability is important (obviously!) and (2) a subject matter distinction between the domain of the church and the domain of the state is the key question and has deep roots in the common law tradition of church and state.
How to connect this history to American constitutional law, and then operationalize this distinction doctrinally, will be the subject of the next post.