THE LIMITS OF CHURCH AUTONOMY.

• Author: Weinberger, Lael

INTRODUCTION 1255 I. CHURCH AUTONOMY AND THE PROBLEM OF ABUSE IN RELIGIOUS ORGANIZATIONS 1257 A. What Church Autonomy Protects 1258 B. Church Autonomy, Accountability, and the Scale of the Religious Abuse Problem 1262 C. Does the Conflict Undermine Church Autonomy? 1268 II. THE SEARCH FOR SOLUTIONS 1270 A. Neutral Principles of Law as the Starting Point 1270 1. Neutral Principles in the Courts 1271 2. Free Exercise Neutrality 1272 B. Church Property Cases and Neutral Principles 1275 1. The Prohlems with Raising Neutral Principles as the Starting Point for Analysis 1277 C. Religious Principles Always Required 1279 D. Subject-Matter-Specific Carveouts 1282 E. Membership and Consent 1283 F. Balancing Tests 1286 III. THE PRINCIPLE OF ACCOUNTABILITY 1287 A. Pluralism and Accountability 1288 B. History and Legal Meaning 1292 1. A Note on Historical Methodology 1292 2. The Evolution of Accountability in English Law 1294 3. Benefit of Clergy as an Immunity Based on Status as Clergy 1295 4. Benefit of Clergy and the Problem of Accountability 1298 5. Reformation and Accountability 1299 6. Accountability Alongside Religious Liberty in America 1303 IV. FRAMEWORK FOR ANALYZING A CHURCH AUTONOMY DEFENSE BASED ON CHURCH GOVERNMENT 1305 A. The Mistaken Quest for a Single, Unifying Principle 1306 B. Refashioning the Doctrinal Pieces into a Framework for Analysis 1307 1. Religious Belief 1307 2. Doctrine or Religious Rationale 1309 3. Classic Church Governance 1310 4. Consent 1313 5. Neutral Principles 1315 C. Subject Matter as a Backstop? Or, the Impossibility of Ultimate Neutrality 1315 1. The Worry (and a Word About Its Hypothetical Character or Lack Thereof) 1316 2. Articulating a Backstop Principle 1316 3. The Character of the Backstop 1317 CONCLUSION 1321 INTRODUCTION

The topic of religious liberty has become increasingly divisive in recent years. (1) While its advocates think it embattled, critics think that religious liberty is more expansive than ever. This concern has even seeped into the church autonomy cases, a body of caselaw that for a long time managed to stay out of the limelight. (2) The courts have held that religious institutions have a right to internal self-government in managing their own affairs, (3) a doctrine most commonly known as church autonomy. (4) Defenders of the doctrine have gone so far as to describe the church as possessing a "sphere of sovereignty" distinct from that of the state. (5) Critics, though, argue that church autonomy threatens to put religious institutions above the law." And as more and more religious liberty arguments are asserted by institutions--churches, parachurch organizations, religious schools, and more--the stakes for figuring out what is protected by church autonomy grow ever higher. (7)

No issue raises this concern as sharply as the clergy sexual abuse cases. (8) The cases cry out for legal accountability. But the critics of church autonomy argue that it is impossible to reconcile accountability in a principled way with the strong form of church autonomy currently ascendant in the courts. "Church governance" could cover any number of abuses. (9) Even some scholars sympathetic to some form of church autonomy worry that the stronger forms of church autonomy being adopted in the courts and defended by some scholars provide overbroad immunities for religious entities. (10) If religious institutions are treated as having a sphere of sovereignty of their own, surely this goes too far as it provides no means for the state to hold actual wrongdoers accountable.

The critique is a challenge to the courts and to the scholars who support a robust theory of church autonomy. Can church autonomy legal protections shield churches from accountability for serious wrongs? If not, what is the outer limit on church autonomy?

This Article explores the limits of church autonomy. It argues that church autonomy does not, and should not, protect abuse and many other forms of wrongdoing. And it does this even after stacking the deck in favor of a robust church autonomy. For purposes of argument, it takes as a given the Supreme Court's precedents creating church autonomy doctrine. It also takes as its starting point two of the more controversial bases for expansive church autonomy: first, that autonomy is based on a theory of institutional sovereignty, and second, that the long history of church-state contestation in English law can illuminate its contours. Even with all of this granted--weighting the scales heavily in favor of church autonomy--this Article argues that limits to autonomy can be found and a baseline of state authority to hold religious actors accountable for wrongdoing can be established.

While courts have generally intuited the coexistence of church autonomy and accountability, they have had a harder time articulating how to put the two together. The courts have lacked a consistent account of church autonomy's limits. So, finally, this Article explains how these principles could be cashed out in concrete doctrinal form, using doctrinal resources that are already in the toolkit of the courts. The conclusion is that a robust version of church autonomy is compatible with accountability.

Parts I and II of this Article are descriptive, identifying and analyzing the challenges for church autonomy as a field; Parts III and IV are prescriptive. Part I examines the critique of church autonomy, focusing particularly on the potential it provides to cover for abuse. Part II examines the doctrinal tools that the courts are currently using to try to identify the outer limits of church autonomy, arguing that the caselaw is currently in chaos as the courts use doctrines in inconsistent ways.

Part III offers two arguments for what I will call an accountability principle alongside autonomy. It looks at the rationales that have been employed by church autonomy's advocates to justify church autonomy and argues that each of these rationales also supports a place for the state in requiring accountability for harmful wrongdoing like clergy abuse. In other words, autonomy and accountability are not opposed principles but should be seen as complementary. Finally, Part IV turns to the doctrine, with an argument for how to implement the accountability principle in court. In the process, this Part proposes a path toward refining the doctrine to make the caselaw more predictable and less chaotic.

1. CHURCH AUTONOMY AND THE PROBLEM OF ABUSE IN RELIGIOUS ORGANIZATIONS

   Courts have been struggling to find the limiting principle for church autonomy. The Supreme Court has articulated a core of protection for religious institutions but has not said more than broad generalities about its limits." The field is vulnerable to critique for lacking a clear limiting principle. (12)

   Lower courts have tried to articulate limits. But they have come up with such a variety of limiting principles as to create a tangle of confusing statements about the law. Courts now pull from a grab bag of doctrinal tools without much clarity as to when one approach or another will be used. The same principles come up from one jurisdiction to another but in inconsistent ways, creating circuit splits and doctrinal tensions among the lower courts and sometimes even with the Supreme Court's precedent. (13)

   Section A introduces church autonomy as a legal principle. Section B shows how church autonomy has been used to complicate accountability for churches in cases of abuse. Section C turns to the scholarship arguing that the problem of clergy abuse (and similar issues) should lead to a rollback of church autonomy.

   1. What Church Autonomy Protects

      Religion is usually a collective activity. (14) Church autonomy protects the internal self-governance of religious organizations. (15) Church autonomy is usually explained as a means of protecting religious institutions from state control, ensuring that religious organizations can control their own beliefs and internal affairs, or ensuring that the state does not establish a religion. No one wants the state telling religious bodies whom it can or can't retain as a minister, rabbi, or imam, or endorsing the theological distinctives of one side of a church split when the competing factions disagree about what counts as the "true" form of a given faith. (16)

      The courts have based church autonomy on both religion clauses of the First Amendment. Interfering with the internal governance of a religious institution would violate religious liberty (free exercise) and establish a religion by allowing the state to dictate the conduct of the religious body. Scholars disagree about whether the Establishment Clause (17) or the Free Exercise Clause (18) provides the better foundation, (19) or whether it is best to view church autonomy as the combined effect of the religion clauses, as the Supreme Court has said. (20) But in any case, church autonomy ensures the institutional separation of church and state. The generic "church" refers to a religious institution with its own religious (ecclesiastical) government; "church autonomy" protects this governance from being controlled by the civil authority. (21)

      The judicially recognized church autonomy doctrine makes a claim about the content of the positive law--modernly, that the Constitution protects autonomy for religious institutions. (22) The positivist right has, in turn, been justified on several different normative bases:

      * Liberal: Church autonomy is simply the institutional outworking of a liberal policy of religious liberty for individuals, coupled with voluntarist social organizations. (23)

      * Pluralist: Society consists of multiple centers of human activity and authority. The state is only one among several, and ensuring that it not claim ultimate authority over all of life is essential to preserve freedom. Religious institutions serve a useful function in preserving a sphere of authority outside the state. Some also argue that religious institutions...