Lael Weinberger Guest-Blogging on “The Limits of Church Autonomy”
I am delighted to announce that Lael Weinberger (Olin-Searle-Smith Fellow in Law & Lecturer, Harvard Law School) will be invited to blog this week on this upcoming Notre Dame Law Review article from him; the abstract:
US courts apply the “doctrine of church autonomy” to protect the autonomy of religious institutions, based on the two religious clauses of the First Amendment. Defenders of church autonomy have sometimes described the doctrine as establishing separate spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They argue that the doctrine of church autonomy lacks limiting principles and fear that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that the autonomy of the Church must have limits but have struggled to articulate them, leaving case law in turmoil.
This article argues that, contrary to the criticisms, church autonomy is limited by a principle of accountability, itself resting on the same foundations that have been used to defend the most robust version of church autonomy. Church. First, the pluralistic social theory of the sovereignty of the sphere not only defends a place for religious institutions to exercise their own autonomy over religious matters; it also has an important place for the state to hold wrongdoers accountable for civil harm. Second, the deep history of church-state relations that has shaped the jurisprudence and research in favor of church autonomy also has rich resources for defending a principle of accountability.
After presenting the theoretical case for the coexistence of the principles of autonomy and accountability, this article presents a doctrinal roadmap for how courts can locate the limits of church autonomy. Building on doctrinal elements already present in case law, the approach described here can be applied to secure accountability and limit the autonomy of the Church in key cases – and this can be done without contradicting any existing doctrine of the Supreme Court.
I look forward to his publications!