Prof. Carl Esbeck on the Church-Autonomy Doctrine

Few have written as much -- and, more important, as well -- on church autonomy in American law as has Prof. Carl Esbeck (Missouri). He has posted this new paper, "Church Autonomy, Textualism, and Originalism:  SCOTUS's Use of History to Give Definition to Church-Autonomy Doctrine (which is forthcoming in the Missouri Law Review).  Here is the abstract:

Church autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case of Watson v. Jones (1872), holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the theory of church autonomy took on its most fully developed form as a constitutional immunity from government regulation where it “interferes with the internal governance of the church.”

While the Supreme Court’s general language concerning the scope of this immunity provides helpful starting points, more systemization is needed to solve the inevitable disputes over fine points and close cases. The place to begin is identifying the full subject-matter range of the high court’s caselaw. In such a survey, church autonomy sets apart as immune five individual domains: the resolution of religious questions or disputes; a church’s choice of polity; the administration of rituals and access to sacred places; the terms of employment of clergy and other ministers; and the admission, discipline, and dismissal of church members.

The Hosanna-Tabor Court went on to hold that further refinements concerning the package of lawsuits that fall into one of these zones of church autonomy are to be found by reference to the nation’s founding. In following this interpretive rule, the scope of church autonomy is given definition by events where the founders spurned federal authority by refusing to become engaged with the internal operations of a church. This makes sense because all thirteen states in rebellion had been British colonies, and the Church of England was the archetypical state establishment. As a loyal arm of the Crown, the Church of England’s establishmentarian model was widely distained by American Patriots.

The final part of the article follows the interpretive rule in Hosanna-Tabor by cataloguing events in which prominent individuals, in their roles as continental and later federal officials, declined to exercise authority in circumstances that give definition to the domains of church autonomy. These events, most little known, include a request by New York delegates to have the Continental Congress alter the Anglican Book of Common Prayer; a French proposal forwarded to the Confederation Congress to sanction a Catholic bishopric in America; a request—later waylaid—to that same Congress to approve the opening of a Catholic seminary; and multiple refusals by the Jefferson Administration to get involved in ecclesial appointments and other quarrels internal to the Catholic church in the Louisiana Territory. These examples and others give historical underwriting to church autonomy theory as grounded in the actions of federal officials in the early republic.

As The Man might say, "download it while it's hot!"