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 His article; his abstract
American courts use “church autonomy doctrine” in order to defend the self-governance and independence of religious institutions. This is based on the First Amendment’s two religion clauses. The doctrine has been described by church autonomy’s advocates as creating distinct areas of sovereignty for the state and church. Critics have said that religious institutions are subject to church autonomy. Critics claim that church autonomy doctrine does not contain limiting principles. They also worry that “sphere sovereignty”, the theory that links church and state, leaves little room for accountability for any wrongdoing within religious institutions. They acknowledge that church autonomy has limits, but the courts struggle to identify them. The case law is still in flux.
The article argues that church autonomy can be limited, contrary to critics. It is limited by an accountability rule, which itself rests on the same foundations that were used to defend church autonomy’s strongest form. The social pluralist theory on sphere sovereignty is not only a defense of religious institutions’ autonomy over religious issues, but also enables the state to hold those responsible for civil damages accountable. The rich heritage of church-state relations which has formed the pro-church autonomy caselaw as well as scholarship has substantial resources for defending a principle that accountability.
This article presents the theory behind the coexistence and accountability of autonomy and accountability. It also provides a roadmap that explains how courts might locate limits to 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.
His posts are always a pleasure to me!