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Thursday, April 11, 2013

Judge Posner on exclaustration and the Constitution

Over at The Volokh Conspiracy, Eugene Volokh has the story about the Seventh Circuit's recent and fascinating decision  about the alleged defamation involved in calling someone a "fake nun."  Here's a bit from the (I think correct, for reasons I wrote about here) decision:

A secular court may not take sides on issues of religious doctrine. The district judge in this case has ruled that a federal jury shall decide whether Patricia Fuller is a member of a Roman Catholic religious order, though if the jury decides that she is it will be rejecting the contrary ruling of the religious body (the Holy See) authorized by the Church to decide such matters. 

A secular court must be allowed to decide, however, whether a party is correct in arguing that there is an authoritative church ruling on an issue, a ruling that removes the issue from the jurisdiction of that court.... But once the court has satisfied itself that the authorized religious body has resolved the religious issue, the court may not question the resolution....

 I wonder, though, if my friend Michael Helfand (Pepperdine) has a different view?  See his great paper, "Litigating Religion," here.

Posted by Rick Garnett on April 11, 2013 at 08:40 AM in Rick Garnett | Permalink


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I am not confident that a court can rule on "when" there is an authoritative ruling of a church on an issue, to the extent that that inquiry implicates the foreign relations of the country. This is an "easy" case because the Holy See and the United States have diplomatic relations and, as Judge Posner said, the ruling on the "fake nun" was unquestionably that of the appropriate body. Identifying the "appropriate body" is an essentially political question and core question of foreign relations.

Here is a hard case: a purely internal United States "non-denominational" church claims to despise religious hierarchy and authority on theological grounds (although how the court can even conclude this statement is impossible without hierarchy to identify this as a theological position "of" the group). Person X claims Person Y is not a member of that church. Fifteen of the twenty dues-paying members agree that Y is not. Any notice by a court of the fact that 15/20 "members" agree, or any notice that "a majority of members" agree, or any attempt to derive a consensus or authority from this system will necessarily be a theological pronouncement of the court.

At root, it seems to me that foreign relations with a religious sovereign provides an easier case for courts. Groups with such sovereigns (Iran, Dalia Lama, Catholic Church) have voluntarily limited their internal religious freedom but have thereby gained religious freedom vis-a-vis external actors.

Posted by: AndyK | Apr 11, 2013 9:21:25 AM

What I have never fully understood is how the secular court can get to the point of knowing to ask the Holy See in the first place. How does the court know that the Holy See and not, say, the local ordinary or the head of the order has the answer? (Granted, we live in a time when it is nearly inconceivable that those persons would disagree with the Holy See, but our time is anomalous.) How does the court know that a woman does not simply declare herself a nun?

Ultimately, how does the secular court distinguish the Catholic Church or other "hierarchical churches" from the church in AndyK's example?

Posted by: Abe Delnore | Apr 11, 2013 10:44:56 AM


This is quite an extraordinary case. My initial reaction - tracking the argument in my article - is that Posner's analysis is on the one hand too preoccupied with avoiding judicial resolution of religious questions (very much in keeping with his analysis in Schleicher v. Salvation Army, 518 F.3d 472, 475 (7th Cir. 2008)) and yet at the same time (somewhat ironically) his decision goes quite far in resolving what, at least to me, looks quite a lot like a religious question. Indeed, the decision basically determines that Fuller is not a nun (although concedes that Fuller might have thought she was a nun). If the concern is all about avoiding religious questions (Slip Op. at 8, cf. Slip Op. 17), then it isn't clear why a court should be reaching out to the Holy See for an amicus brief.

On my view, the key consideration is whether or not this case falls within the authority of a particular religious institution by the implied consent of the parties. If it does, then we should - as a matter of constitutional law - defer to the determination of that institution. In this case, that would mean first determining whether this case was "before" the Holy See.

I think there are two ways to answer this question. First, the answer might be no, in part because, as the decision reports, the Holy See has declined to decide who owns the disputed property, indicating that the Holy See views this case as somewhat outside its authority. Alternatively, we might conclude the answer is yes, but that the Holy See has waived its constitutionally protected autonomy that was granted by the implied consent of the parties - something I think is possible given footnote four of Hosanna-Tabor v. EEOC (which conceptualizes the ministerial exception and, I believe in turn, church autonomy as an affirmative defense that should be subject to waiver). Either way, the issue of whether or not Fuller is a nun is something that should be seen as before the court; as a result, the Holy See's statements regarding the status of Fuller are almost more like an expert answering a question rather than a decision-maker adjudicating a case. Given that framework, it seems like the Holy See does not quite have a constitutionally protected institutional interest in the case - or maybe it has waived that interest. (Posner himself seems to explicitly reject this sort of analysis that focuses on whether there is an institutional interest by stating "That no religious institution is a party to this case is of no moment." (Slip Op. 10)).

So my thinking (at least for now) is that the court (or more accurately, the jury) should decide - at least as it pertains to the defamation claim - whether or not Fuller is a nun. In so doing, the jury should be made aware of the Holy See's view on this issue, which I believe would provide significant support to the proposition that Fuller is not a nun. Alternatively, a judge might conclude that the Holy See's statement on the issue (given the factual context) leaves no other alternative and therefore take judicial notice that Fuller is not a nun. But either way, the court would not be deferring to the Holy See as a matter of constitutional doctrine - it would be using private law to accomplish what would likely be a similar outcome.

Posted by: Michael Helfand | Apr 11, 2013 12:11:52 PM

Michael -- interesting. It seems to me that the Holy See's statement that "X is not a Roman Catholic nun" establishes the fact that "X is not a Roman Catholic nun" sufficiently so that a secular court can and should treat is as established (and not subject to a a jury's agreeing that it is a fact). No?

Posted by: Rick Garnett | Apr 11, 2013 3:00:28 PM


As a bit of an outsider on these things, I wasn't quite sure if there was an alternative basis for being deemed a Catholic nun. On that count, a court might also have reason to wonder whether there is an alternative basis - or an alternative competing religious body - that could grant someone the status of being a Catholic nun even when denied that status by the Holy See.

But let's assume we grant the point, which I think is fair. I guess my larger point is that when the Holy See makes that statement, it does not speak in its capacity as a decision-maker because, it seems to me, the matter is not before the Holy See. Instead, it speaks as an authoritative expert of sorts (to extend the arbitration analogy I've used elsewhere, the Holy See is almost like an arbitrator who is functus officio). In fact, it may be so definitive that the court should take judicial notice of the point. But in so doing, the court would not be deferring to the Holy See as a matter of constitutional law. And I think this distinction is important because it emphasizes that a court can, in theory, adjudicate these types of claims; it just happens to be here that we might have such good evidence on the point that it need not be litigated further. But that doesn't mean, were the circumstances different, that courts can't "litigate religion" so to speak.

Posted by: Michael Helfand | Apr 11, 2013 5:48:38 PM

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