Church Autonomy vs. Religious Arbitration: Take 3

In my last couple of posts (see here and here), I've tried to highlight some of the unique issues that arise when courts try to review arbitration awards issued by religious tribunals.  Art Hinshaw over at the ADR Prof Blog has been kind enough time chime in a bit on these issues, and I thought I might highlight one last point from my Litigating Religion article before signing off.  At its core, my contention is that courts should avoid encroaching on the rights of religious institutions, but that courts should not worry about resolving disputes that turn on religious questions. 

Consider a case where a church terminates its minister for cause (sometimes a congregation just doesn't like the sermons).  Now imagine the minister brings a claim for breach of contract before a religious tribunal which finds in favor of the church.  Any attempt by the minister to bring a breach of contract claim in court will presumably be dismissed on church autonomy grounds; the court will leave decision regarding church discipline and governance to the relevant "church judicatories."  

Moreover, the claim will likely be dismissed even if the minister alleges that the decision of the tribunal was procured by fraud or collusion.  This is because evaluating such a claim would typically require judicial investigation into matters of church doctrine and practice - and we ordinarily think of such an investigation as running afoul of the Establishment Clause.

In my article, I argue that we shouldn't be worried about courts investigating religious questions.  My contention is that courts are competent enough to answer such questions and that the endorsement concerns implicit in a court choosing one view of religious doctrine over another are not quite as substantial as one might otherwise think. 

If I'm right about this (many people think I'm not), then we might consider allowing courts to adjudicate, for example, breach of contract claims where the minister alleges fraud or collusion on the part of the religious tribunal.  Like the standard of review for arbitration awards, we might think that the decision-making of religious institutions and tribunals should be insulated from any judicial review on the merits and therefore courts should dismiss a minister's breach of contract claim against a church on church autonomy grounds.  

But we might also think that where fraud or collusion is at play, those protections should fall by the wayside; indeed, we might think that's not church autonomy we're protecting in those cases (if the allegations are true, it's just fraud).  And, if we aren't worred about a court becoming impermissibly entangled in religious questions - only about a court encroaching on the rights of religious institutions - then we might re-interpret the First Amendment to allow courts to consider claims of fraud and collusion in the constitutional context just as we do in the arbitration context.