Date: 2016
Type: Working Paper
The religious-question doctrine : free-exercise right or anti-establishment immunity?
Working Paper, EUI RSCAS, 2016/10, RELIGIOWest
GEDICKS, Frederick Mark, The religious-question doctrine : free-exercise right or anti-establishment immunity?, EUI RSCAS, 2016/10, RELIGIOWest - https://hdl.handle.net/1814/40144
Retrieved from Cadmus, EUI Research Repository
This Essay argues that the source of judicial inconsistency in applying the U.S. religious-question doctrine is confusion about whether the doctrine protects a free-exercise right held by religious individuals and groups against government interference, or is instead an anti-establishment immunity stemming from a structural disability on government (and especially judicial) action with respect to questions of religious belief and practice. Part 1 sketches the religious-question doctrine as it emerged from the U.S. Supreme Court’s church property and office cases. Part 2 explains that ‘rights’ and ‘structure’ are distinct jurisprudential concepts whose application yields differing results. Part 3 argues that attending to these differences yields important explanatory insights about the religious-question doctrine, using as brief illustrations the clergy child-abuse cases in the United States, and the treatment of church “autonomy” by the European Court of Human Rights.
Cadmus permanent link: https://hdl.handle.net/1814/40144
ISSN: 1028-3625
Series/Number: EUI RSCAS; 2016/10; RELIGIOWest
Keyword(s): Disability Duty Free exercise rights Anti-establishment immunity Religious question doctrine
Grant number: FP7/269860