A Hands-off Approach to Religious Doctrine: What are We Talking About?

INTRODUCTION 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." (1) The Court, it was proposed, is--more and more--taking a "hands-off approach to religious doctrine." (2) 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; (3) by the Supreme Court of Canada's recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; (4) 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; (5) and perhaps even by the Speaker of the House's controversial pronouncements, on "Meet the Press," about Roman Catholic teaching with respect to abortion. (6) 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"? (7) 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? (8) 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," (9) why is the Court doing, and should it be doing, what it is doing? I. Step back for a moment, seventeen centuries or so. As fans of the Da Vinci Code are (in a way) aware, (10) in the year 325, the Arian Controversy was raging. (11) The Emperor Constantine, a convert to Christianity, was troubled by the strife among Christians and--perhaps more acutely--by the civil unrest that in many places accompanied their theological disagreements. (12) Accordingly, he asked Christian bishops from around the world to gather for an ecumenical council, in present-day Turkey, to restore both religious concord and civil peace. Today, Constantine's move no doubt seems to most people a perfect example of that which the political authority cannot do and, indeed, should have no interest in doing. Most of us probably think that for the civil magistrate to inquire into--to even imagine the right or competence to inquire into--the "truth or falsity" of religious claims and doctrines is, as the Supreme Court put it in United States v. Ballard, (13) to enter a "forbidden domain." (14) We are confident that disputes over doctrine--disputes such as, for example, the fourth century argument over the divinity of Christ--are, as the Court insisted in Watson v. Jones, (15) "strictly and purely ecclesiastical in ... character." (16) In every involvement or interference by government officials in "controversies over religious doctrine and practice," (17) we think, the "hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." (18) Religion is, after all, a "private matter." (19) But, is it really? Or, is it entirely? And, even if it is, so what? Presumably, with respect to the particular "controvers[y] over religious doctrine and practice" (20) that occasioned the first Council at Nicaea, Constantine was not mistaken in perceiving that his Christian subjects' strong views on the matter--and their equally strong view that the question did matter--were not unrelated to, and could not be neatly separated from, eminently "secular" matters about which he was quite, and appropriately, concerned. …