Ties that Bind? The Questionable Consent Justification for Hosanna-Tabor

ABSTRACT-Arguments in favor of religious sovereignty often emphasize the benefits of autonomy for religious institutions while ignoring the civil rights of individuals who belong to or work for those institutions. To justify intrusions on individual civil rights, proponents of strong religious autonomy generally rely on the concept of implied consent. According to this rationale, individuals willingly give up the protection of civil rights laws when they voluntarily join religious organizations. This Essay responds to one scholar's account of the consent rationale as undergirding the Supreme Court's recognition of the ministerial exception: Christopher Lund's excellent article, Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor. Although Lund skillfully sketches out a comprehensive framework for understanding when and to what extent government can regulate religious entities through civil law, the consent rationale itself is profoundly troubling. First, church members may face practical difficulties in exiting their religious affiliation, such as substantial pressures not to withdraw, and severe but informal sanctions if they do. Second, the view of religion as voluntaristic is a distinctly Protestant, not universal, understanding of religious faith. Finally, even if they consent to join and remain in a religious community, members may not have notice of the doctrines to which they have supposedly consented because the church's stance may be unclear or changing. As a result, it is not always easy to identify who is the dissenter in a religious organization and who speaks for the church. Thus, if religious autonomy's intrusion on individual rights is to be justified, it must be on grounds other than consent.INTRODUCTIONProfessor Christopher Lund's article, Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor,1 identifies an eminently sensible settlement over the contentious issue of when and to what extent the government can regulate church employment and participation issues that touch on public laws. The settlement includes a zone of protection for church autonomy, grounded in Free Exercise and Establishment Clause principles, which can be overcome only where churches have asked for or waived their rights to refuse state involvement. This bargain carefully balances the interests of churches as independent rights-bearing entities against those of the state. But it is problematic in one very important way. It does not justify forcing individuals-who are purportedly bound by church norms as a function of their membership-to forfeit their ability to assert their legal rights simply because a matter is deemed "religious." Lund's particular line of reasoning focuses on protecting religious organizations from the state but fails to provide a persuasive rationale for denying individuals the protection of the law.Consent and voluntariness are central to Lund's article. For example, Lund explains that a church's right to autonomy derives from the individual free exercise right, which is itself grounded in consent and voluntariness.2 The bedrock principle of First Amendment doctrine is that "[n]o one gets to control another person's religious conduct; no one has the right to force his religion on someone else."3 This simple rule then helps to explain why churches need not listen to dissenters and may continue to enforce their own rules in the face of contrary internal claims; to allow dissenters to win would be to allow them to control the group members' religious exercise.4The lynchpin here is evidently consent. Because no one can force the dissenters to become or remain members of the church, it follows that no one can be forced to worship with anyone who does not share her beliefs.5 Moreover, if anyone has the right to exit the church at any time, members can be understood to have submitted to the church's rules rather than those of civil society-at least on issues touching on religious doctrine or internal church governance. …