An Extended Essay on Church Autonomy

The doctrine of church autonomy has its own exclusive line of precedent running from Watson v. Jones (1872) through Kedroff v. St. Nicholas Cathedral (1952)—where the doctrine was first recognized as having First Amendment stature—and culminating with renewed vigor for religious institutional autonomy in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). Attention to church autonomy has expanded rapidly since the Supreme Court’s decision in Hosanna-Tabor, and its scope is much disputed as it pushes aside other claims and interests. In its most familiar form—the “ministerial exception”—it is regarded as a defense in the nature of an immunity, an interposition to which there is no balancing because there can be no countervailing state interests sufficient to overcome the defense. The First Amendment has already struck the balance in favor of church autonomy, as the Court put it in Hosanna-Tabor. The origin of the doctrine of church autonomy and its undergirding by both the Establishment and Free Exercise Clauses continues to be puzzling to many. It is as if the First Amendment defense is not a religious rights claim, but a structural clause rightly ordering two centers of authority, namely institutional religion and the civil state. As a structural provision, it makes sense that there is no interest balancing. Moreover, when the defense of church autonomy is raised in the course of litigation, its structural nature warrants courts limiting discovery into the merits until this threshold defense is disposed of. Likewise, as a structural clause it makes sense that when the defense is initially denied by a trial court, an interlocutory appeal is warranted under the collateral order doctrine. If the doctrine of church autonomy affords the church and similar religious entities a discrete zone free of government, what are the subject matters that are beyond the law’s reach—a field described in Hosanna-Tabor as “the internal governance of the church”? While the zone is relatively compact, we are talking about functions that go to the very heart of a religious entity’s maintaining essential control and commanding its destiny. From the full range of the High Court’s case law, we learn that church autonomy has been found to carve out five areas over which a religious organization is sovereign: (1) the determination and interpretation of religious doctrine; (2) the determination of the organization’s polity or governance structure, including its implementation in canons and bylaws; (3) the hiring, supervising, promoting, and removing of clergy, worship leaders, and other leaders and employees with explicitly religious functions; (4) the determination of who is admitted to and expelled from membership, as well as which members and affiliates are in good standing; and (5) internal communications of the religious organization pertaining to the full enjoyment of the prior four subjects. These five subject areas are a guide in taking measure of lower-court decisions, some of which are attributing to church autonomy too little scope and others too broad a sweep. As the case law has unfolded, church autonomy has been regularly invoked in four litigation patterns: (1) a plaintiff sues a religious entity for employment discrimination (or a related common-law claim), and the entity invokes the ministerial exception to block the lawsuit; (2) a lawsuit raises questions that concern the validity, meaning, or importance of religious assertions or disputes, and civil authorities refuse to take up those questions; (3) a disagreement between two factions within a church or denomination is brought before the civil authorities, who then defer to the determination of the dispute by the highest ecclesial judicatory; and (4) a party sues for defamation based on communications that arose out of a matter of internal governance, and the defendant pleads church autonomy as a defense. Concerning this third pattern or internecine disputes between two factions, in lieu of deferring to the proper ecclesial judicatory the Supreme Court has permitted states the alternative of adopting a rule of decision characterized as “neutral principles of law.” Resort to this alternative, however, has been permitted by the Supreme Court only in property cases where the two factions have abandoned attempts at resolving their underlying doctrinal differences, thus the only matter remaining for civil resolution via “neutral principles” is who gets legal title to the church property. As to the fourth pattern involving defamation and related torts, some state courts have gone astray. Rather than applying the elements of the defamation claim before it and asking if their proof will entangle the parties and the court in one or more of the five subject matters identified by the Supreme Court as protected by church autonomy, some of these courts have wrongly looked to “neutral principles”—a divergence from church autonomy doctrine permitted by the Supreme Court only in internecine disputes over title to church property. The Supreme Court in Hosanna-Tabor and more recently in Our Lady of Guadalupe School v. Morrissey-Berru (2020), showed no interest in the Papal Revolution of the 11th century out of which Catholic scholars derive freedom of the church (libertas ecclesiae). This deprives the Court of some distant principles to undergird the doctrine of church autonomy, but it also frees it from arguing that the Papal Revolution is a suitable undergirding for church autonomy as found in a late 18th century constitution. Instead, in the view of the Supreme Court the proper historical backdrop for understanding the First Amendment’s doctrine of church autonomy is nearer in time and closer to home. Under the guiding principle of originalism (although originalism was not expressly mentioned in Hosanna-Tabor), that means looking to what motivated revolutionary Americans on this side of the Atlantic: war with Great Britain, including rejection of its model for the established Church of England.