The religious-question doctrine : free-exercise right or anti-establishment immunity?

Abstract

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.