A hands-off approach to religious doctrine: what are we talking about?

• Author: Garnett, Richard W.
• Position: Symposium: The Supreme Court's Hands-Off Approach To Religious Doctrine

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. Even with the benefit of hindsight, there is no reason to dispute what must have been the Emperor's view, namely, that the social and political order under his charge--to say nothing of his subjects' salvation--would be well served if the Arian Controversy were resolved. And so, why, exactly, do his concerns, and his actions, strike us as strange, even illegitimate?

They are not, after all, without contemporary parallels, or progeny. Yes, it is hard to imagine President Obama convening a council of Episcopalian bishops, and asking them--in the interest of preserving public peace (and tasteful music)--to resolve their various disputes. (21) And yet, we can imagine--we no longer have a choice--the People's Republic of China enacting a law purporting to regulate the reincarnation of the Dalai Lama. (22) This law certainly invades what we and our Supreme Court regard, again, as a "forbidden domain." And yet, is it so clear that the matter of the reincarnation of living lamas is "purely ecclesiastical," and does not touch directly on the Chinese state's "secular" interest in maintaining and strengthening its chokehold on Tibet? We might be amused, bewildered, or troubled by USAID's "mullahs on a bus" program in Central Asia, which "typically brings together about a dozen religious leaders who spend a day on a bus visiting various U.S.-funded projects and hearing directly from beneficiaries of the positive work the United States undertakes in a variety of fields." (23) And yet, it is not obvious that we should reject out of hand the program's premise, namely, that our government's interests--our interests--are well served by actions that soothe anti-American sentiments in Central Asia's Muslim communities. (24) When a majority of Canada's Supreme Court affirmed that agreements to remove religious barriers to remarriage are enforceable in civil courts, they did so--they insisted--in order to vindicate "Canada's approach to religious freedom, to equality rights, [and] to divorce and remarriage generally"; (25) the Court's stated aim was not to decide a religious question or enforce a religious duty but rather to uphold the "democratic values, public order and the general well-being of" citizens. (26) The purpose of Georgia Tech's abovementioned "Safe Space" program--to "help [] gays and lesbians feel comfortable and safe on campus" (27)--was "eminently plausible" (28) and, it would seem, entirely secular, (29) even if it did involve functionaries talking theology. And so on.

It is easy to agree, at least at first, with Justice Brennan's warning, nearly forty years ago, in the Presbyterian Church case, that "[i]f civil courts undertake to resolve [doctrinal] controversies ... the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." (30) Indeed, as I have observed elsewhere, his statement "seems wise and fittingly cautious, even unremarkable and obvious." (31) It turns out, though, to be "intriguing, elusive, and misleading" (32):

Far from being "purely ecclesiastical concerns," ... the content of religious doctrine and the trajectory of its development might instead be matters to which even a liberal, secular, and democratic state reasonably could, and perhaps should, attend.... [And so,] Justice Brennan's warning presents "hazards" of its own, and ... its premises--if uncritically embraced--subtly distort our constitutional discourse. The meaning, movement, and implications of religious teachings are and have been both the subjects and objects of government power and policy. In the end, government like ours are not, and cannot be, "neutral" with respect to religion's claims. And it is precisely because secular, liberal, democratic governments have an "interest" in the content ... of religious doctrine--an interest that such governments will, if permitted, quite understandably pursue--that religious freedom is so fragile. (33) I try to flesh out this claim below. For now, the point is a simple one: even assuming there are some matters, problems, questions, or controversies that are so entirely "private" that the public authority could not conceivably have an appropriately secular interest in addressing them, we should not conclude too quickly that disputes involving or about religious doctrine are among them.

II.

All that duly said and noted, it would be both mulish and idle to deny that, in our political community, government arms and actors (including courts) steer well clear of theological disputes; they avoid (perhaps to a fault (34)) excessive entanglement with the governance and doctrines of religious communities, institutions, and traditions. And, this reluctance is well pedigreed. Professor Tribe cites the refusal, described in the Acts of the Apostles, of Gallio, a Roman proconsul in Greece, to judge a complaint that Paul was "inducing people to worship God contrary to the law." (35) "If it were a matter of some crime or malicious fraud," Gallio said to Paul's accusers, "I should with reason hear [your] complaint ...; but since it is a question of arguments over doctrine ... and your own [that is, Jewish] law, see to it yourselves. I do not wish to be a judge of such matters." (36) For John Locke, "the power of civil government relates only to ... civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come." (37) Somewhat closer to home, but in a similar vein, is James Madison's well-known, indignant insistence that it is "arrogant pretension [,] falsified by the contradictory opinions of Rulers in all ages, and throughout the world," to think that "the Civil Magistrate is a...