The Varieties of Co-Religionist Commerce III

As I mentioned in my last post, I've been writing a bit about "church autonomy" - that is, the autonomy granted religious institutions over internal decision-making and disputes resolution.  My thought is that concerns over church autonomy have become particularly salient because of the increasing reach of "co-religonist commerce," where entities - including religious institutions - find themselves engaging in conduct that simultaneously implicates both religious and commercial interests.  This has made it difficult to determine the scope of church autonomy because it is sometimes hard to know whether the conduct in question is religious or commercial. 

Reaction to these church autonomy questions have run the gamut.  As I also mentioned in my last post, some have advocated for strong forms of church autonomy (the "institutionalists") while others have pushed back against these strong claims (the "anti-institutionalists").  I've recently attempted to present another alternative, which argues that the authority of religious institutions is derived from, to use the terminology of the Supreme Court in Watson v. Jones, the "implied consent" of the institution's membership.  The thought here is that while religious institutional autonomy is derived from individual members, the mechanism of implied consent provides a form of quasi-sovereignty to the religious institutions through the default presumption of implied consent.  And, it also provides a method for establishing important limitations to church autonomy based on facts and circumstances that undermine the presumption of implied consent.  

Here's how I put it in the abstract to my paper, Religion's Footnote Four: Church Autonomy as Arbitration (the paper, of course, elaborates on the idea):

While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes even at the request of the parties. In stark contrast, footnote four rejected this jurisdictional approach to the religion clauses; according to the Court’s logic, the ministerial exception – like other affirmative defenses – could be waived by the parties; and with such waiver, courts could adjudicate religious claims that had previously been deemed beyond the authority of the judicial system. 

Far more than a procedural nicety, footnote four signaled a radical rejection of the prevailing paradigm. However, the Court’s decision failed to explicitly provide a new vision of the relationship between church and state. To replace the discarded jurisdictional approach, this Article contends that the kernels of such a vision can be found in the Supreme Court’s early church property cases, which understood the autonomy of religious institutions as a constitutionalized version of arbitration. Thus, the authority of religious institutions – like the authority of arbitrators – was derived from the implied consent of its members and the decisions of religious institutions were subject to judicial review for misconduct. While the Supreme Court’s later church property cases rejected this approach, returning to these core principles – consent and judicial review – provides the doctrinal foundations for the Court’s new framework for the relationship between church and state. And, applying this new framework can help resolve some of the pressing litigation questions left unresolved by the Supreme Court’s decision in Hosanna-Tabor.