Levine on the "Hands-Off Approach to Religious Doctrine"

Prof. Samuel Levine (Touro) returns, here, to an issue that he has addressed thoughtfully and thoroughly in other work, namely, what he calls the Supreme Court's "Hands-Off Approach to Religious Doctrine."  Here's the paper's abstract:

In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed — and seemed to resolve — a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically — though anticlimactically — in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter.

This article suggests that the Supreme Court’s inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court’s continuing, and arguably expanding, hands-off approach to religious doctrine. Courts and scholars have offered sound justifications for the Supreme Court’s hands-off approach to questions of religious doctrine grounded in constitutional principles of religious freedom as well as more general concerns over judicial competence and the role of judges. Nevertheless, as recent cases have illustrated, the hands-off approach raises concerns of its own, at times serving as a source of contention and confusion. The ongoing tensions and divisions among Justices and judges revolving around these issues may suggest a need for the Supreme Court to revisit and perhaps rethink the contours of the hands-off approach to achieve clarity for the future.

My own effort to understand this "hands-off approach" is here:

At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”

This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal churches in Virginia, on the one hand, and the Episcopal Diocese of Virginia, on the other; by the Supreme Court of Canada’s recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; by a federal judge’s ruling that the Georgia Institute of Technology had unconstitutionally taken on the task of instructing students about the merits of various traditions’ positions on sexual morality; and perhaps even by the Speaker of the House’s controversial pronouncements, on “Meet the Press,” about Roman Catholic teaching with respect to abortion. In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving the meaning or content of religious teaching.

But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an “increasing unwillingness,” and that they are doing so in accord with any identifiable principle or “approach”? If there is, in the Court’s law-and-religion toolkit, something like a hands-off “rule,” then what are that rule’s scope, content, and justifications? Which feared harms does it protect against, and which goods does it promote? When it comes to “matters that relate to the interpretation of religious practice and belief,” why is the Court doing, and should it be doing, what it is doing?