1 Introduction
In this chapter, I will be exploring the idea of religious group autonomy (which I will shorten to ‘church autonomy’ throughout the chapter)1 by looking at how it has developed in American law. My perspective is that of an American lawyer and academic who has only modest familiarity with the European system. But even with that modest familiarity, it seems clear that America has developed a strikingly robust and fairly intricate concept of church autonomy. This should probably come as no surprise. America is both a highly religious society and a highly litigious society, so our system has many occasions to contemplate the idea of church autonomy and consider its rationales, scope, defects, and limits. This is not to say that America’s system is right or that it should be considered a model for other countries pondering what to do. In the American context, I have argued for a fairly vigorous notion of church autonomy.2 But others may see that as something best avoided. Moreover, regardless of whether it works well in America or not, it is an entirely different question how American concepts of church autonomy would function elsewhere—we should be careful about transplanting sociolegal concepts grown in the soil of one nation to the soil of others. Countries are different, after all.
This chapter therefore contents itself with simply sketching out the American approach so that we can see more clearly what a thick conception of church autonomy looks like—the kinds of rights that it involves and the kinds of rationales that might justify those rights. As a result, this chapter will be more analytical than normative. It tries to help the reader understand how church autonomy has developed in America, but it leaves the reader to draw their own conclusions. Another thing largely left to the reader is how the American
2 History
America is a unique country in many ways. American notions of church-state relations and of religious liberty differ from many countries—even the Western European democracies most similar to America in other respects. The reasons for that are, no doubt, complicated and multifaceted. But surely one reason must be America’s unique history. We are in a different place now, because we started in a different place then.
The Protestant Reformation fractured Christianity in the West. With Westphalia’s insistence on congruence between religious boundaries and political ones, European countries frequently found themselves with a single dominant church—dominant both in a sociological sense as well as a political one. In France and Spain, it was the Catholic Church. In England, it was the Anglican Church. In Germany, regional provinces made regional choices—whether Catholic, Lutheran, or Calvinist. Again, I come at European church-state relations as a relatively uninformed outsider. But it seems easy to see how these different starting arrangements naturally generate different structures of church-state relations. When a single faith looms so large, church-state relations end up being chiefly about the relations of one church and one state. There are still a variety of possible arrangements, of course. Depending on things like the relative strength of the church and the state, one might control the other, or they might cooperate, or they might conflict. But when one faith is sufficiently dominant, the primary question becomes the state’s relationship with that dominant faith, and the question of how other faiths should be treated becomes almost a relative afterthought.
Here America has a different history, although the differences are nuanced and susceptible to overstatement. Unlike countries in Western Europe, America never had a single dominant national faith. This should not be taken as a denial of the obvious fact that the country started off as a largely Protestant country. When the United States formed in the late 18th century, there were few Catholics (about 1% of the population), fewer Jews, and virtually no one else. Modern people tend to see this America as religiously homogenous, because
America’s commitment to religious disestablishment had a variety of sources. It came from a particular understanding of religious liberty formed from interwoven strands of Enlightenment and Protestant thought. It came from a suspicion of government, a suspicion of hierarchical religious organisation, and especially a suspicion of the two combined. American Protestants disliked Catholicism, of course, but Catholicism was far away. Probably more important was their dislike of the Church of England, which was of course associated with England, against whom America had just fought a revolution. And, bearing on all of these, was the country’s striking and ever-increasing religious heterogeneity.
As a result, America took a different approach to church-state relations from the very beginning. In other countries, the project of religious toleration was figuring out how to square an established national church while still being sufficiently accommodating toward minority faiths. This is still the goal in some places. Article 16 of Norway’s Constitution, for example, says that ‘[t]he Norwegian church, an Evangelical-Lutheran church, shall remain
In part because of this, early America was a place of relative religious equality. To be sure, all faiths were not in the same place—certainly not in the eyes of the citizenry, not even in the eyes of the law. Laws forbidding heresy and blasphemy defined these things in Christian terms, so did the laws forbidding work on the Sabbath. But even so, religious groups in America found themselves more equal in the eyes of the law than they did in other places. In part, this was because there were just so many different religious groups. America’s Second Great Awakening (from about 1790 to 1840) greatly increased the number and diversity of Protestant groups, and the future would bring a wide variety of new faiths to the America scene—Adventists, Catholics (largely by immigration), Mormons, and Jews. Early America was not devoid of interreligious conflict (e.g., the early Mormon Church in America).7 And we have interreligious conflict right now (e.g., Muslims in America today). But even so, for a religiously heterogenous country, America has avoided the kinds of violent religious conflict that have historically plagued other countries. In all this, the role of disestablishment remains mysterious, but I suspect certain connections between the two. When a country has an established church, members of that church have their free exercise vicariously protected by the existence of the establishment. But in a country with no established church, all faiths start off
3 The Contrast with Europe
America has changed a lot in the past 200 years. But many parts of the story have remained the same. America has maintained, at least by European standards, a high level of religiosity, an astoundingly high degree of religious diversity, a relatively conservative social and political culture, and a relatively thick conception of individual rights across the board. For all these reasons, strong notions of church autonomy have come easily to American law.
Indeed, for these same reasons, many of the disputes that have arisen in Europe do not arise in America (or at least in modern America).8 America has robust constitutional guarantees of religious nondiscrimination. The Swiss ban on minarets, upheld by the ECtHR on procedural grounds,9 is something that American courts would see as religiously discriminatory and unconstitutional.10 The same is true for the ECtHR’s cases involving bans on religious veils.11
Even more fundamentally, America’s political process is such that some kinds of European conflicts will never arise here. The ECtHr once rejected a claim of parents to a right to religiously homeschool their children.16 But homeschooling (whether done for religious reasons or not) is protected by statute in all 50 American states.17 The ECtHR once rejected a claim that nations had to give legal effect to marriages conducted in religious ceremonies before
But it is not just that America finds easy certain questions that Europe finds hard. It is also that Europe asks questions that America does not have reason to ask. One of the most flummoxing ECtHr cases for Americans to understand is Fernández Martínez v. Spain.21 Fernández Martínez was an ordained Catholic priest. Without a dispensation from the Catholic Church, he married a woman and had five children. When his situation became public, he was fired from his job teaching religion at a state-run school (in America, we would use the term ‘public school’), and the ECtHR dismissed his claim. To Americans, this situation is hard even to understand. Why should the teacher at a public school be fired for failing to conform to Catholic rules of sexual morality? For Americans, the deep problem here is the agreement between Spain and the Catholic Church, under which the Catholic Church has the right to appoint the religion teachers in Spain’s public schools.22 That would never happen in America. In America, Fernández Martínez certainly has no right to continued employment at a private Catholic school—that is a core part of American notions of church autonomy.23 But Fernández Martínez would have every right
4 Church Autonomy in America Today
Let us now start in on the concept of church autonomy in America. We could focus on all the different kinds of legal protections given to religious organizations. By statute, American law exempts religious organizations from zoning rules, employment laws, pension requirements, labor laws, and other kinds of legal obligations.24 A detailed look at any one of those could easily fill this chapter. Instead, let us begin by looking at the origins of the more general constitutional principle of church autonomy, and then turn to how this principle has been operationalised in modern America by examining some recent illustrative cases.
In America, the constitutional right of church autonomy dates back to a curious place—a set of 19th and early 20th century disputes about church factions in a schism fighting for control over the church’s real property. Schisms within a religious organisation can happen for a host of reasons. But in America, schisms have often happened when churches fracture over theological issues—often theological issues connected to the political issues of the day. In the 1960s and 70s, the movement for women’s equality raised questions about women’s ordination that led to church splits.25 As we speak, the movement for gay equality is raising questions about gay ordination that are leading to church splits.26
In late 19th century America, the omnipresent political issue was slavery. And in 1871, slavery split a Presbyterian Church in Kentucky into two factions. Each faction could claim some support. The anti-slavery side had the support of a majority of the congregation as well as the national church, while the
In Watson v. Jones,27 the Supreme Court addressed this dispute and laid general rules for these kinds of disputes. Churches had rights of self-governance, the Court said, so courts had to do their best to stay out of internal church controversies. To describe this, the Court came with an idea about ‘implied consent’28—the basic concept being that when one joins a church, one consents to the church making its own decisions. From this idea sprang Watson’s legal regime, which centered around church structure. For hierarchical churches—those churches that recognised a higher church authority—courts would generally defer to the will of that hierarchy in resolving schism questions. For congregational churches, courts would generally defer to the will of the majority of the congregation. Respecting a church’s autonomy, the Court thought, was a matter of respecting a church’s established pre-commitments about who was in ultimate control.
The principle evolved from there. One crucial case came in 1976, with a schism in the Serbian Eastern Orthodox Church.29 Milivojevich had been the presiding bishop for the Church in America, when the Mother Church in Yugoslavia purported to remove him and appoint someone else. Milivojevich challenged his removal in court, arguing that it was procedurally invalid—that the Mother Church had removed him in violation of its own rules. This was a dispute about church personnel but, like the Court’s earlier cases, it simultaneously implicated church property—whoever the true bishop was, everyone realised, that person would have legal title to all the church’s property in North America. When the Supreme Court stepped in, it ruled against Milivojevich. This was a hierarchical church, the Court said, so the courts had to accept Yugoslavia’s decision to remove him.
For a long time, the principle of church autonomy remained obscure—a striking principle in the abstract, but lacking practical significance outside the
The newer case happened in 2012, Hosanna-Tabor v. EEOC.32 American employment law generally forbids discrimination on the basis of various characteristics—race, sex, religion, disability, age, and sexual orientation. By statute, religious institutions are exempt from the ban on religious discrimination.33 But in Hosanna-Tabor, the Supreme Court said religious institutions could not be sued for any kind of discrimination by their ‘ministers,’ and then went on to define ‘ministers’ broadly to include any parochial school teacher whose duties include teaching the faith.34
What connects these cases? In an early case, the Supreme Court phrased the principle this way: ‘[R]eligious organizations,’ the Court said, have ‘power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’35 This is a right of self-determination—a right to general autonomy from the state.
But when we move from individuals to groups, the voluntary principle obviously becomes more complicated. Groups should also have right to practice religion. But unlike individuals, groups sometimes disagree. When those disagreements arise, groups often split into factions. When a faction bring suit in court, it is essentially attempting to impose its choices about religion on the other factions within the church. This is what makes voluntarism in the group context so difficult—and, in a deep way, the Court’s church autonomy cases are the Court’s attempts to deal with those difficulties. Maybe one sees this principle at play most clearly in an old church-property dispute, Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church.37 There lower courts had applied the old English property rule about where church property goes in the event of theological schism. Under that rule, courts were to give the property to the faction whose views the courts believed were closest to the original views of the church. But the obvious problem with the English rule was that it greatly undermined established religious authorities, preventing them from making theological changes without risk of losing their property. Even a single dissenter that wanted things the old way could
All of the United States Supreme Court’s church autonomy cases can be seen through this lens of religious group voluntarism. Take again the recent cases establishing the ‘ministerial exception’—the notion that churches have immunity from employment discrimination claims brought by their ministers. Those cases always begin with an assertion of right by the minister: I have a legal right to be their minister, no matter what they want. But it is easy to see how this threatens the idea of religious group voluntarism. In a system where religion is voluntary, your right to practice religion with other people runs in tension with their right not to practice religion with you.
So far, the United States Supreme Court has had few occasions to reflect deeply on the concept of church autonomy. Outside the ministerial exception cases, the United State Supreme Court has not addressed church autonomy in more than 40 years.38 Only the most basic contours are clear, and the details have been left almost completely undefined. Even so, we can get a sense of how church autonomy works in modern America by looking at a few disputes in the lower courts. And when we look there, church autonomy looks like a strikingly powerful principle with wide application. If one were to summarise what church autonomy there looks like in a single sentence, it would be this: religious dissenters cannot sue their religious organisations to compel changes in those organisations’ beliefs, practices, or governance.
Let’s start with beliefs. A representative case here involves a Jehovah’s Witness who got marital counseling from her church.39 Believing that marriage is permanent and divorce is immoral, the church encouraged her to stay with her abusive husband. When she later left him, she sued the church. In her view, if it hadn’t been for the church’s counseling, she would have left him years ago. But the Connecticut court here dismissed the claim, for understandable reasons. She might be right that the church caused those extra years of abuse. But allowing her claim to go forward would nevertheless mean the church does not have a right to hold and to teach its religious beliefs about marriage.
As we move from beliefs to practices, the counterarguments to church autonomy grow stronger. After all, it is one thing to say that religious organisations
Indeed, even suits alleging physical injuries incurred in religious practices have been dismissed. One case involved the happenings at a Catholic charismatic healing service, where congregants would ‘rest in the spirit’ and fall back into someone else’s arms.42 During one service, however, a long-time member fell back, was not caught property, and hit her head badly. She brought a negligence claim against the church, arguing that the church had failed to exercise ‘reasonable care’ and that she was physically injured as a result. But the Court dismissed the claim, on the theory that the government could not set legal requirements for religious services.43
Tied in with the issue of religious practices is the issue of religious governance. Selection of church personnel, courts have said, is beyond judicial purview—this was the Supreme Court’s conclusion in the ministerial exception cases, mentioned above.44 But just as significant is how courts have protected the process of church governance. For example, just as fired ministers cannot bring employment discrimination suits challenging their terminations, they also cannot bring defamation suits claiming something false was said about them during the termination process.45 And courts have rebuffed other
Yet these cases also prompt a sense that there must be lines somewhere—that there must be limits to this principle of church autonomy. Those limits come from different directions. We have said that church autonomy prevents church insiders from legally contesting the internal operations of a church. But this phrasing itself suggests limits. For one thing, it suggests church autonomy should only bind insiders. Outsiders—those with no connection to the church in question—should not be bound by the principle of church autonomy. Moreover, the insider/outsider line has another important corollary in the constitutional right of exit—every insider should have a right to leave the church and effectively become an outsider. And for another thing, church autonomy should only preclude claims relating to the internal operations of a church. So claims outside that category should go forward. We see both of these limits when we look at defamation claims brought against churches. Those cases sometimes fail, but they are most likely to succeed when the plaintiff has left the church (i.e., is no longer an insider), or when the communications go outside the church (i.e., the matter no longer relates to the church’s internal operations).
Church autonomy also faces other kinds of limits. It can be waived. Religious organizations can waive their autonomy either by not raising it as a defence,47 or sometimes by contract.48 Church autonomy should also only come into play when liability would affect some distinctively religious interest of the religious organisation. Earlier this chapter mentioned the Kubala case, where the court
Finally, there is a simple reality. In America, as in other places, rights are usually defeasible—that is, subject to balancing and thus subject to exception when they infringe on other important interests. And in some church autonomy cases, the rights on the other side are simply more compelling, especially in cases of physical danger and especially in cases of minors. Famous early cases in America involved the Protestant practice of snakehandling.51 A more recent, and more controversial, case from Texas involved a seventeen-year-old girl, who sued her Pentecostal church for forcibly restraining her during a church exorcism.52 There were some indications in the record that she consented to the exorcism. But the relevance of that consent is open to question (as she was a minor), and she clearly suffered serious injuries. Nevertheless, the Texas Supreme Court dismissed her case.53 An even more alarming case is now working its way through the Utah courts, where a fourteen-year-old girl who was a Jehovah’s Witness started seeing an eighteen-year-old in her congregation.54 But the relationship eventually changed, and he began physically and sexually assaulting her. When all this was discovered, instead of simply recognising this as abuse, the church investigated the girl to find out her moral culpability—questioning her for nearly an hour about the details of their sexual encounters, and forcing her to listen to an audio recording of her own sexual assault. Church autonomy is an important principle. But some things will
5 Conclusion
Church autonomy is a relatively new concept everywhere, even in the United States where it may be most fully developed. Everything about it is uncertain—its rationales and counter-rationales, its scope and its limits, its benefits and its costs. Yet the principle has firm roots in American history and doctrine, so its haziness suggests we need to consider it more deeply. Later on, I would like to explore more analogies to the rights that other organizations enjoy—analogies with Native American tribes, political parties, universities, and other entities. But such matters are, for now, future work.
Acknowledgments
I would like to thank Chad Flanders for helpful comments on an earlier draft.
By ‘church,’ I mean to include religious organisations of all denominations and of all kinds. I use the phrase ‘church autonomy’ only because phrases like ‘religious group autonomy’ are bulkier and more unwieldy.
See Christopher C. Lund, ‘Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,’ Northwestern University Law Review 108, no. 4 (2014): 1183; Christopher C. Lund, ‘In Defense of the Ministerial Exception,’ North Carolina Law Review 90, no. 1 (2011).
Some of the largest conflicts are succinctly summarised in Michael W. McConnell, ‘The Origins and Historical Understanding of Free Exercise of Religion,’ Harvard Law Review 103, no. 7 (1990): 1422–24.
For a state-by-state recounting of disestablishment, see Carl H. Esbeck and Jonathan J. Den Hartog, Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833 (Columbia: University of Missouri Press, 2019).
The First Amendment to the Constitution says that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ U.S. Constitution, amend. I. Again, to be clear, the First Amendment only forbade the national legislature (Congress) from establishing a church, but it left intact any religious establishments that a state (like Massachusetts or Virginia) might have. But again, formal disestablishment at the state level was already happening at the time the Constitution was created, and was basically complete in the early 19th century.
It is hard to understand America church-state relations without understanding this point. As Doug Laycock put it, ‘[the Religion Clauses were no compromise of conflicting interests, but the unified demand of the most vigorous advocates of religious liberty.’ Douglas Laycock, ‘Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century,’ Minnesota Law Review 80, no. 5 (1996): 1088.
See Sarah Barringer Gordon, Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002).
Americans especially will appreciate the excellent overview of ECtHR and CJEU cases given in John Witte, Jr. & Andrea Pin, ‘Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts,’ Emory Law Journal 70, no. 3 (2021): 587.
See European Court of Human Rights, Prohibition on Building Minarets in Switzerland: Applications Inadmissible, 2011.
The important American case here is Lukumi, where the United States Supreme Court unanimously (by a vote of 9–0) allowed a Cuban religious group, Santeria, to continue sacrificing animals in their religious rituals, despite contrary city ordinances, because the Court believed the Santeria had been inappropriately targeted by those ordinances. See Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 508 U.S. 520 (1993). In recent years, the constitutional prohibition on religious discrimination has grown even more robust, although that has been controversial. See Tandon v Newsom, 141 S. Ct. 1294 (2021) (holding that California’s COVID-19 rule limiting gatherings in homes to three families discriminated against religious groups, even though California’s law applied to both religious gatherings and nonreligious ones, because California allowed certain businesses to open that posed the same health risks); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (holding that the city of Philadelphia discriminated against Catholic Social Services by refusing to exempt them from non-discrimination rules requiring them to serve gay couples, because the city’s own rules allowed for exemptions); Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018) (holding that certain aspects of the adjudicatory process showed Colorado had discriminated against a Christian baker who refused on grounds of religious conscience to make a wedding cake for a gay couple).
Belcacemi v. Belgium, App. No. 37798/13 (July 11, 2017), http://hudoc.echr.coe.int/eng?i=001-175636; S.A.S. v. France, 2014-III Eur. Ct. H.R. 341, 353–54, ¶ 12; Lachiri v. Belgium, App. No. 3413/09, ¶¶ 31–48 (Dec. 18, 2018), http://hudoc.echr.coe.int/eng?i=001-186461.
See, e.g., Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) (1993).
See, e.g., William P. Marshall, ‘In Defense of Smith and Free Exercise Revisionism,’ University of Chicago Law Review 58, no. 1 (1991): 313 (noting how, in America, ‘much of the core of religious exercise—prayer, proselytization, and preaching, for example—is expressive conduct covered by [America’s] Free Speech Clause’).
Ass’n for Solidarity with Jehovah’s Witnesses v. Turkey, App. Nos. 36915/10 & 8606/13, ¶¶ 3, 108 (Oct. 17, 2016), http://hudoc.echr.coe.int/eng?i=001-163107; Gldani Congregation v. Georgia, App. No. 71156/01, 46 Eur. H.R. Rep. 613, 649, ¶¶ 151–52 (2007); Valsamis v. Greece, 1996-VI Eur. Ct. H.R. 2312, 2315.
See Neil M. Richards, ‘The ‘Good War’ the Jehovah’s Witnesses, and the First Amendment,’ Virginia Law Review 87, no. 4 (2001): 782–83 (‘[B]etween 1937 and 1954, the [United States Supreme] Court decided a number of critical First Amendment cases that laid the doctrinal and conceptual foundation for much of modern free speech and free exercise of religion jurisprudence … It is remarkable that virtually all of these cases involved a single group of litigants—the Jehovah’s Witnesses.’) (reviewing Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (Lawrence: University Press of Kansas, 2000)).
In Konrad v. Germany, 2006-XIII Eur. Ct. H.R. 355, the ECtHR rejected the claim of conservative Christian parents who sought to homeschool their children because of a variety of fears of the German public school system.
‘After a long string of legislative and judicial victories, however, homeschooling is now recognized as legal in all fifty [American] states.’ Billy Gage Raley, ‘Safe at Home: Establishing a Fundamental Right to Homeschooling,’ Brigham Young University Education and Law Journal 2017, no. 1: 59.
Serife Yiğit v. Turkey, App. No. 3976/05, ¶ 39 (Nov. 2, 2010), http://hudoc.echr.coe.int/eng?i=001-101579.
‘Unlike many places in the world, statutes in every state of the United States authorize religious leaders to solemnize or perform legally binding marriages.’ Elijah L. Milne, ‘Marriage and the Religion Clauses,’ St. John’s Law Review 85, no. 4 (2011): 1467.
Bayatyan v. Armenia, 2011-IV Eur. Ct. H.R. 1.; Papavasilakis v. Greece, App. No. 66899/14 (Sept. 15, 2016), http://hudoc.echr.coe.int/eng?i=001-166850; Aydemir v. Turkey, App. No. 26012/11 (July 9, 2016), http://hudoc.echr.coe.int/eng?i=001-163940.
Fernández Martínez v. Spain, 2014-II Eur. Ct. H.R. 449.
As the American law professor Mark Movsesian puts it, the case ‘reflects the peculiarities of the Spanish system, in which teachers of Catholicism are state employees … (I recognize that the Spanish system may not be so peculiar in the European context, but that’s a subject for another post.).’ Mark Movsesian, ‘European Court Decides Church Autonomy Case,’ First Things, July 8, 2014, https://www.firstthings.com/blogs/firstthoughts/2014/07/european-court-decides-church-autonomy-case.
In America, religious schools can fire their religious teachers for any reason, and courts will uphold that action without any investigation into those reasons. These are, in fact, the United States Supreme Court’s most recent cases about church autonomy. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).
Details about these are given in William W. Bassett, W. Cole Durham, & Robert T. Smith, Religious Organizations and the Law, 2nd ed. (Eagan: Thomson West, 2015).
In the United States Supreme Court’s decision in Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969), a Presbyterian church in the state of Georgia split over a variety of issues, but the first listed one was the ‘ordaining of women as ministers and ruling elders.’ Ibid. at 443 n.1.
The United States Supreme Court has not had one of these cases. But there have been several cases in the lower courts. For a representative example, see Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594 (Tex. 2013), where the Texas Supreme Court considered the rights of a conservative breakaway Episcopal congregation over the Episcopal Church’s increasing acceptance of gay clergy.
Watson v. Jones, 80 U.S. 679, 729 (1871). For more detailed factual accounts and evaluative assessments of Watson and its successor cases, see Lund, ‘In Defense of the Ministerial Exception,’ 12–23.
The full line is this: ‘All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.’ Watson v. Jones, 80 U.S. 679, 729 (1871).
See Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696 (1976).
See NLRB v. Catholic Bishop, 440 U.S. 490 (1979).
The Court’s decision was thus a matter of statutory interpretation. The Court did not say that churches were entitled to an exemption as a matter of constitutional right. Instead, ‘[a]ll we have are nine Justices cryptically agreeing that the case presents “‘difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.’” Lund, ‘In Defense of the Ministerial Exception,’ 20 (quoting NLRB v. Catholic Bishop, 440 U.S. 490, 507 (1979)).
Hosanna-Tabor v. EEOC 565 U.S. 171 (2012).
See 42 U.S.C. § 2000e–1. The United States Supreme Court unanimously upheld this exemption, concluding that it was not favoritism for religion that violated the Establishment Clause, in Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987).
This conclusion is actually the combination of several cases. Hosanna-Tabor held a Lutheran teacher that both taught religion and had a ministerial position in the church to be a ‘minister’ for these purposes. But in a later case, Our Lady of Guadalupe Sch. v. Morrissey-Berru, the Court said that merely teaching religion to students was sufficient to make the teacher a minister and thus to bar the teacher’s legal claims. 140 S. Ct. 2049 (2020).
See Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012) (quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am. (1952).) The Court has also put it other ways. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (‘The independence of religious institution … protect[s] their autonomy with respect to internal management decisions that are essential to the institution’s central mission.’); Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012) (Alito, J., concurring) (‘The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.’).
See Hosanna-Tabor v. EEOC, 565 U.S. 171, 182–90 (2012) (turning to history); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060–62 (2020) (same).
See Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969).
See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012).
See DeCorso v. Watchtower Bible & Tract Society of New York, 829 A.2d 38 (Conn. App. 2003).
See Lund, ‘Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,’ 1214 & n.177 (collecting cases).
See Purdum v. Purdum, 301 P.3d 718 (Kan. Ct. App. 2013).
See Kubala v. Hartford Roman Catholic Diocesan Corp., 41 A.3d 351 (Conn. Super. Ct. 2011), aff’d summarily, 38 A.3d 1252 (Conn. App. Ct. 2012).
The court said the negligence claim was ‘based on the defendants’ allegedly negligent performance of the healing ritual,’ and that ‘[t]he performance of a religious healing ritual certainly falls under the types of doctrines and practices which the first amendment is designed to protect.’ Ibid. at 358.
See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).
See Ira C. Lupu & Robert W. Tuttle, ‘Courts, Clergy, and Congregations: Disputes Between Religious Institutions and Their Leaders,’ Georgetown Journal of Law & Public Policy 7, no. 1 (2009): 155 (discussing defamation claims in this context, and concluding that to allow these claims would be to allow ‘a collateral attack on a decision that is otherwise solidly protected by the ministerial exception’).
See Gunn v. First Baptist Church, No. W201702382COAR3CV, 2018 WL 2749639 (Tenn. Ct. App. June 7, 2018).
This is one of the more obscure holdings of the United States Supreme Court in Hosanna-Tabor, the ministerial exception case. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012) (concluding that the ministerial exception ‘operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar,’ and is thus waivable).
Contract claims are more difficult. For more on them, see Lund, ‘Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,’ 1221–29.
See supra note 43 and accompanying text.
For fuller consideration of the clergy sex-abuse cases, see Ira C. Lupu & Robert W. Tuttle, ‘Sexual Misconduct and Ecclesiastical Immunity,’ Brigham Young University Law Review 2004: 1789, and Douglas Laycock, ‘Church Autonomy Revisited,’ Georgetown Journal of Law & Public Policy 7, no. 1 (2009): 253.
See State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975). For more on this, see Matthew M. Ball, ‘Targeting Religion: Analyzing Appalachian Proscriptions on Religious Snake Handling,’ Boston University Law Review 95, no. 4 (2015): 1425.
See Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008).
For more on the facts of Pleasant Glade, and a fuller analysis of why the Court might have been wrong, see Lund, ‘Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,’ 1217–19.
See Williams v. Kingdom Hall of Jehovah’s Witnesses, 491 P.3d 852 (Utah 2021).
Bibliography
Books
Barringer Gordon, Sarah. Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2002.
Bassett, William W., W. Cole Durham, and Robert T. Smith. Religious Organizations and the Law. 2nd ed. Eagan: Thomson West, 2015.
Esbeck, Carl H., and Jonathan J. Den Hartog. Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833. Columbia: University of Missouri Press, 2019.
Journal Articles
Ball, Matthew M. “Targeting Religion: Analyzing Appalachian Proscriptions on Religious Snake Handling.” Boston University Law Review 95, no. 4 (2015): 1425.
Gage Raley, Billy. “Safe at Home: Establishing a Fundamental Right to Homeschooling.” Brigham Young University Education and Law Journal 2017, no. 1: 59.
Laycock, Douglas. “Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century.” Minnesota Law Review 80, no. 5 (1996): 1088.
Lund, Christopher C. “Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor.” Northwestern University Law Review 108, no. 4 (2014): 1183.
Lund, Christopher C. “In Defense of the Ministerial Exception.” North Carolina Law Review 90, no. 1 (2011).
Lupu, Ira C., and Robert W. Tuttle. “Courts, Clergy, and Congregations: Disputes Between Religious Institutions and Their Leaders.” Georgetown Journal of Law & Public Policy 7, no. 1 (2009): 155.
Lupu, Ira C., and Robert W. Tuttle. “Sexual Misconduct and Ecclesiastical Immunity.” Brigham Young University Law Review 2004: 1789.
Marshall, William P. “In Defense of Smith and Free Exercise Revisionism.” University of Chicago Law Review 58, no. 1 (1991): 313.
McConnell, Michael W. “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 103, no. 7 (1990): 1422–24.
Milne, Elijah L. “Marriage and the Religion Clauses.” St. John’s Law Review 85, no. 4 (2011): 1467.
Richards, Neil M. “The ‘Good War’ the Jehovah’s Witnesses, and the First Amendment.” Virginia Law Review 87, no. 4 (2001): 782–83.
Witte, John, Jr., and Andrea Pin. “Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts.” Emory Law Journal 70, no. 3 (2021): 587.
Cases
Ass’n for Solidarity with Jehovah’s Witnesses v. Turkey, App. Nos. 36915/10 & 8606/13, ¶¶ 3, 108 (Oct. 17, 2016), http://hudoc.echr.coe.int/eng?i=001-163107.
Aydemir v. Turkey, App. No. 26012/11 (July 9, 2016), http://hudoc.echr.coe.int/eng?i=001-163940.
Bayatyan v. Armenia, 2011-IV Eur. Ct. H.R. 1.
Belcacemi v. Belgium, App. No. 37798/13 (July 11, 2017), http://hudoc.echr.coe.int/eng?i=001-175636.
Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 508 U.S. 520 (1993).
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987).
DeCorso v. Watchtower Bible & Tract Society of New York, 829 A.2d 38 (Conn. App. 2003).
Fernández Martínez v. Spain, 2014-II Eur. Ct. H.R. 449.
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).
Gldani Congregation v. Georgia, App. No. 71156/01, 46 Eur. H.R. Rep. 613, 649, ¶¶ 151–52 (2007).
Gunn v. First Baptist Church, No. W201702382COAR3CV, 2018 WL 2749639 (Tenn. Ct. App. June 7, 2018).
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).
Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) (1993).
Konrad v. Germany, 2006-XIII Eur. Ct. H.R. 355.
Kubala v. Hartford Roman Catholic Diocesan Corp., 41 A.3d 351 (Conn. Super. Ct. 2011), aff’d summarily, 38 A.3d 1252 (Conn. App. Ct. 2012).
Lachiri v. Belgium, App. No. 3413/09, ¶¶ 31–48 (Dec. 18, 2018), http://hudoc.echr.coe.int/eng?i=001-186461.
Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018).
Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594 (Tex. 2013).
NLRB v. Catholic Bishop, 440 U.S. 490 (1979).
Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020).
Papavasilakis v. Greece, App. No. 66899/14 (Sept. 15, 2016), http://hudoc.echr.coe.int/eng?i=001-166850.
Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008).
Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969).
Purdum v. Purdum, 301 P.3d 718 (Kan. Ct. App. 2013).
S.A.S. v. France, 2014-III Eur. Ct. H.R. 341, 353–54, ¶ 12.
Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696 (1976).
Serife Yiğit v. Turkey, App. No. 3976/05, ¶ 39 (Nov. 2, 2010), http://hudoc.echr.coe.int/eng?i=001-101579.
State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975).
Tandon v Newsom, 141 S. Ct. 1294 (2021).
Valsamis v. Greece, 1996-VI Eur. Ct. H.R. 2312, 2315.
Watson v. Jones, 80 U.S. 679, 729 (1871).
Williams v. Kingdom Hall of Jehovah’s Witnesses, 491 P.3d 852 (Utah 2021).
Legal Instruments
U.S. Constitution, amend. I. (1789).
42 U.S.C. § 2000e–1 (1972).
Website Content
Movsesian, Mark. “European Court Decides Church Autonomy Case.” First Things. July 8, 2014. https://www.firstthings.com/blogs/firstthoughts/2014/07/european-court-decides-church-autonomy-case.
Reports
European Court of Human Rights, Prohibition on Building Minarets in Switzerland: Applications Inadmissible, 2011.