Branton Nestor (Gibson Dunn) has posted Judicial Power and Church Autonomy (Notre Dame Law Review, forthcoming) (139 pages) on SSRN. Here is the abstract:
The church autonomy doctrine provides important protections for religious institutional liberty in our constitutional system. It protects the right of religious institutions to decide matters of church government, faith, and doctrine without improper interference from secular authorities. But while the doctrine has both deep historical roots and broad contemporary acceptance, there remain several challenging questions of exceptional importance that split courts and divide scholars. One question that has provoked significant debate is the relationship between church autonomy and judicial power. Does church autonomy limit the judicial power of civil courts to entertain suit and discovery directed against ecclesiastical matters resolved by religious authorities—or is church autonomy just another run-of-the-mill merits defense? Given the Supreme Court’s commitment to history and tradition, the origins and historical understanding of the doctrine are relevant to drawing the line between judicial power and church autonomy. But that history and its implications remain underdeveloped.
This Article suggests that the church autonomy doctrine, viewed in light of its history and tradition, is best understood to impose broad limits on the power of civil courts to exercise judicial review over matters of church government, faith, and doctrine reserved to ecclesiastical authorities. The church autonomy doctrine historically limited the power of civil courts to exercise jurisdiction over or to inquire into or interfere with such protected ecclesiastical decisions. Such limitations on judicial power over ecclesiastical matters were grounded in a trifecta of free-exercise principles, non-establishment principles, and voluntary-association principles—which preserved an important sphere of church autonomy. There were, to be sure, limits to the doctrine’s substantive protections and procedural safeguards—and the line between church autonomy and judicial power worked itself out over time. But the main lesson is that the church autonomy doctrine generally limited the power of civil courts to entertain suit directed against the protected ecclesiastical decisions of religious institutions—and these limitations both protected religious autonomy from judicial interference, and prevented judicial authorities from establishing religious doctrine. In doing so, the church autonomy doctrine entrenched important safeguards that limited the power of civil courts to trudge into matters of church government, faith, and doctrine—with important lessons for civil procedure and church autonomy today.
Posted at 6:10 AM