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Published online by Cambridge University Press: 17 June 2020
The idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial examination of religious organizations’ decisions—focusing on employment decisions—and normatively assessing each kind. I argue that religious groups should enjoy protection from certain kinds of examination, but other kinds are justifiable, and even required. My argument supports an approach similar to that seen in some recent European Court of Human Rights decisions, rather than the less discriminating approach of U.S. courts.
Earlier versions of this article were presented at the Association for Social and Political Philosophy Annual Conference 2018 at LUISS, Rome, a MANCEPT Workshop on Religion and Liberal Politics at the University of Manchester, a Morrell Centre for Toleration workshop at the University of York, and a Cambridge Forum for Legal and Political Philosophy public lecture at the University of Cambridge. Thanks to everyone who attended on those occasions for their questions and suggestions. Thanks too to Jeremias Adams-Prassl, Nathan Chapman, Rick Garnett, and Kevin Vallier for helpful written comments.
1. The contemporary debate might be traced back to Laycock, Douglas, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373 (1981)CrossRefGoogle Scholar. For Laycock's more recent reflections, see Laycock, Douglas, Church Autonomy Revisited, 7 Georgetown J. L. & Pub. Pol'y 253 (2009)Google Scholar.
2. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).
3. Obst v. Germany, App. No. 425/03 (ECtHR Sept. 23, 2010); Fernández Martínez v. Spain (2015) 60 EHRR 3.
4. I.e., a form of autonomy that is enjoyed not simply by churches, but also other kinds of religious organizations. Exactly which groups qualify as having a protected kind of autonomy is a source of debate. I will mostly talk about churches in this article, but would apply the same account as the one I defend below to cases involving other kinds of religious institutions. Some of the cases I mention involve other such institutions.
5. Rex Ahdar & Ian Leigh, Religious Freedom in the Liberal State (2d ed. 2013), at 376Google Scholar.
6. Fernández Martínez, supra note 3, para. 127. Article 9 concerns freedom of thought, conscience, and religion.
7. Laycock, Church Autonomy, supra note 1, at 254.
8. Id. at 265. For a somewhat different argument, focused on the value of religious groups’ freedom in their seeking after truth, see Brady, Kathleen A., Religious Group Autonomy: Further Reflections About What Is at Stake, 22 J. L. & Religion 153 (2006)Google Scholar.
9. McClure v. Salvation Army, 460 F.2d 553, para. 558 (5th Cir. 1972).
10. Hosanna-Tabor, supra note 2, at 173.
11. Hatzis, Nicholas, The Church–Clergy Relationship and Anti-discrimination Law, 15 Ecclesiastical L. J. 144, 155 (2013)Google Scholar.
12. Ira C. Lupu & Robert W. Tuttle, The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 20 Lewis & Clark L. Rev. 1265, 1278 (2017).
13. Id. at 1282.
14. Garnett, Richard W., The Freedom of the Church: (Toward) an Exposition, Translation, and Defense, in The Rise of Corporate Religious Liberty (Schwartzman, Micah, Flanders, Chad & Robinson, Zoë eds., 2016)Google Scholar; Steven D. Smith, The Jurisdictional Conception of Church Autonomy, in The Rise of Corporate Religious Liberty.
15. Cécile Laborde, Liberalism's Religion (2017), at 167–170; Lægaard, Sune, Disaggregating Corporate Freedom of Religion, 44 Neth. J. Legal Phil. 221, 228–229 (2015)Google Scholar.
16. Hill, B. Jessie, Kingdom Without End? The Inevitable Expansion of Religious Sovereignty Claims, 20 Lewis & Clark L. Rev. 1177 (2017)Google Scholar.
17. Griffin, Leslie C., The Sins of Hosanna-Tabor, 88 Ind. L.J. 981, 982 (2013)Google Scholar.
18. Id. at 983.
19. Laborde, supra note 15, at 177.
20. Though some do. For example, see Conly, Sarah, In Defense of the (Somewhat More) Invasive State, 6 Phil. & Pub. Issues (New Series) 25 (2016)Google Scholar.
21. This not necessarily to say that this relationship is uniquely distinctive. Some think that certain other kinds of voluntary association have the same kinds of rights. See Laborde, supra note 15, ch. 5.
22. Many other issues are also relevant to religious group autonomy. Among others, these include choosing, setting standards for, and disciplining members; exemptions from certain torts; choosing their own internal structures; and property disputes. For an interesting ECtHR case, involving the question of whether a denomination can prevent priests from setting up a new trade union, see Sindicatul “Pastorul Cel Bun” v. Romania (2014) 58 EHRR 10. I would apply the general kind of approach defended below to all of these issues, although various modifications would be needed.
23. For cases of this kind, see Percy v. Board of National Mission of the Church of Scotland [2005] UKHL 73; Obst v. Germany, supra note 3.
24. See Lombardi Vallauri v. Italy, App. No. 39128/05 (ECtHR Oct. 20, 2009); Fernández Martínez, supra note 3.
25. See Hosanna-Tabor, supra note 2.
26. Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003).
27. Equal Employment Opportunity Commission v. The Roman Catholic Diocese of Raleigh, 213 F.3d 795, 802 (4th Cir. 2000).
28. Laurence H. Kant v. Lexington Theological Seminary, No. 2011-CA-000004-MR (Ky. Ct. App. 2012).
29. Laurence H. Kant v. Lexington Theological Seminary, No. 2012-SC-000502-DG (Ky. Sup. Ct. 2014).
30. Hosanna-Tabor, supra note 2, at 192.
31. Id. at 199 (Alito, concurring).
32. Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 2014 WL 1512223 (Apr. 17, 2014).
33. Vera Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV [2018] EUECJ C-414/16.
34. Id., paras. 60–69.
35. See IR v. JQ [2018] EUECJ C-68/17.
36. Again, I use the term “church” as shorthand throughout, but would apply my framework to a broader set of religious originations.
37. Such clauses are common. See Evans, Carolyn & Hood, Anna, Religious Autonomy and Labour Law: A Comparison of the Jurisprudence of the United States and the European Court of Human Rights, 1 Oxford J. L. & Religion 81, 98–99 (2012)Google Scholar. For a nice example, see the “duties of loyalty” of Catholic employees of the German Catholic Church, excerpted in Schüth v. Germany (2011) 52 EHRR 32, para. 38.
38. For further discussion of Laborde's view, see Billingham, Paul, State Sovereignty, Associational Interests, and Collective Religious Liberty, 1 Secular Studies 114 (2019)CrossRefGoogle Scholar.
39. Laborde, supra note 15, at 175. Laborde emphasizes that various non-religious associations can also have these interests.
40. Id. at 192.
41. Id. at 192.
42. For my own take on this, see Billingham, Paul, How Should Claims for Religious Exemptions be Weighed?, 6 Oxford J. Law Relig. 1 (2017)Google Scholar.
43. Laborde, supra note 15, at 193.
44. Id.
45. There is a further question of what should happen in such cases, if the church can now show a genuine religious reason, such that it would violate religious freedom to force them to reinstate the employee. It might well be that some financial compensation is appropriate here, but not forced reinstatement.
46. Hosanna-Tabor, supra note 2, at 194–195 (internal reference removed).
47. Laycock, Church Autonomy, supra note 1, at 254.
48. Hosanna-Tabor, supra note 2, at 205.
49. Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism (2010), at 135.
50. Laborde, supra note 15, at 194.
51. Fernández Martínez, supra note 3, paras. 147–151. For helpful discussion of this case (and others), see Slotte, Pamela & Årsheim, Helge, The Ministerial Exception—Comparative Perspectives, 4 Oxford J. L. & Religion 171 (2015)Google Scholar.
52. Schüth v. Germany, supra note 37.
53. Evans & Hood, supra note 37, at 103.
54. The Court also engaged in SE(b)(i)—checking that there was a religious reason for Schüth's dismissal based on his role as an organist.
55. Evans & Hood, supra note 37, at 106.
56. Further, the Schüth ruling is not without problems. At points the Court seemed to impose fairly severe limits on the kinds of moral requirements that churches can place upon employees, and hinted at SE(c)(ii)-type judgments regarding the proper balance.
57. Hosanna-Tabor, supra note 2, at 187.
58. As was true in the case that the Court in Hosanna-Tabor appeals to, Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
59. For example, see the hypothetical case offered by the dissent in id. at 727 (Rehnquist, J., dissenting).
60. Lund, Christopher C., Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor, 108 Nw. U. L. Rev. 1183, 1222 (2014)Google Scholar.
61. Edge, Peter W., Judicial Crafting of a Ministerial Exception: The UK Experience, 4 Oxford J. L. & Religion 244 (2015)Google Scholar. UK courts have found such intent in some recent cases, but not in others. See New Testament Church of God v. Stewart [2007] EWCA Civ 1004; President of the Methodist Conference v. Preston [2013] UKSC 29; Sharpe v. The Bishop of Worcester [2015] EWCA Civ 399.
62. Another way to construe this would be to say that the only permissible aspect of PE(a)(ii) is covered by SE(b)(i), so there is no independent work left to be done by PE(a)(ii).
63. Again, this is noted approvingly by Laborde, supra note 15, at 188.
64. Quoted in Leigh, Ian, Balancing Religious Autonomy and Other Human Rights under the European Convention, 1 Oxford J. L. & Religion 109, 119 (2012)Google Scholar.
65. Articles 10 and 6 of the ECHR, respectively.
66. Leigh, supra note 64, at 120.
67. Evans & Hood, supra note 37, at 100.
68. In Laborde's terms, the concern here is more with coherence interests than competence interests.
69. One obvious implication here is that churches’ decision making need not be democratic.
70. Evans & Hood, supra note 37, at 106.
71. Id. at 100.
72. Again, I have in mind here a narrow category consisting of priests, rabbis, etc.
73. A very minimal form of PE(a)(i) seems appropriate even in cases involving ministers proper, to protect them from flagrant, indisputable, violations of the churches’ own procedures, such as that imagined in Serbian E. Orthodox Diocese, supra note 58, at 727. This caveat likely makes little practical difference, however, since religious organizations do not tend to completely ignore their own policies in this way.
74. Further, others might be persuaded by the framework and think that it should apply to cases involving ministers proper.
75. Nolen v. Diocese of Birmingham in Alabama, 5:16-cv-00238-AKK (N.D. Ala. 2017).
76. My discussion of this case partly draws from that in Evans & Hood, supra note 37.
77. Two lower German courts ruled in Obst's favor, seemingly based on their interpretation of Mormon theology. This clearly contradicts my approach. See Obst v. Germany, supra note 3, paras. 10–11. This ruling has not been published in English. References are to an unofficial translation published by the Strasbourg Consortium, available at https://www.strasbourgconsortium.org/common/document.view.php?DocumentID=5084.
78. Id., para. 8. There was a question of whether Obst had admitted this in a context where he could expect confidentiality, but the German Federal Labor Court judged that this was not the case (para. 16) and the ECtHR accepted this (para. 47).
79. Id., paras. 18, 20.
80. Id., para. 25.
81. Id., para. 8.
82. Id., para. 48.
83. Id., para. 8.
84. Id., para. 50.
85. Id., para. 51.
86. Id., paras. 45–52.
87. Id., para. 49.
88. Again, this range is narrower than that to which the ministerial exception is currently applied, given the expansive understanding of “ministerial employees” used by U.S. courts.
89. This would thus apply both to employees of churches who are not ministers sensu stricto and employees of other religious organizations.
