A hands-off approach to religious doctrine: What are we talking about?

Notre Dame Law Review

Volumn 84, Issue 2, 2009, Pages 837-864

  Garnett, Richard W ^a  

^a UNIVERSITY OF NOTRE DAME   (United States)

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EID: 62149109989     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (167)

1. Ass'n of Am. Law Sch., Annual Meeting: Reassessing Our Roles as Scholars and Educators in Light of Change, http://www.aals.org/am2008/friday/index.html (last visited Nov. 20, 2008) [hereinafter Program].
2. See id.; see also Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 COLUM. L. REV. 1843, 1844 (1998) ("The Supreme Court's basic constitutional approach ... is that secular courts must not determine questions of religious doctrine and practice."); Samuel J. Levine, Rethinking the Supreme Court's Hands-Off Approach to Questions of Religious Practice and Belief, 25 FORDHAM URB. L.J. 85, 85 (1997) ("In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.").
3. See, e.g., Julia Duin, Judge Rules in Favor of Breakaway Groups, WASH. TIMES, Aug. 21, 2008, at A3.
4. See, e.g., Zvi Halpern & Michelle Landy, Court Upholds Civil Rights Against Religious Doctrine, TORONTO STAR, Dec. 21, 2007, at AA08; see also Broker v. Marcovitz, [2007] 3 S.C.R. 607, 2007 SCC 54 (Can.) (enforcing get obtained from rabbinical court on the basis that it constituted a civil contract).
5. See Sklar v. Clough, No. 1:06-CV-0627-JOF, slip op. at 83-84 (N.D. Ga. Apr. 29, 2008); see also Scott Jaschik, Gay Rights vs. Religious Rights, INSIDE HIGHER ED, May 2, 2008, http://www.insidehighered.com/news/2008/05/02/gatech (summarizing the Sklar decision and reactions on both sides of the holding). As Eugene Volokh commented: The Georgia Tech Safe Space training program materials (both printed handouts and Web materials) were apparently aimed at helping gays and lesbians feel comfortable and safe on campus, an eminently plausible goal. But they tried to accomplish this by taking stands on quintessentially theological questions-e.g., the true meaning of the Bible, and the "legi-tima[cy]" of various interpretations of "Biblical texts"-something the Establishment Clause has been read as prohibiting. Posting of Eugene Volokh to The Volokh Conspiracy, http://volokh.com/posts/1217 540045.shtml (July 31, 2008, 17:34 EST) (alteration in original). For another case presenting similar questions, see Citizens for a Responsible Curriculum v. Montgomery County Public Schools, No. Civ. A. AW-05-1194, 2005 WL 1075634 (D. Md. May 5, 2005) (holding that defendant's new curriculum endorsing a homosexual lifestyle likely violates plaintiff's First Amendment freedoms).
6. See, e.g., Julia Duin, Catholic Bishops Assail Pelosi over Her Remarks on Abortion, WASH. TIMES, Aug. 27, 2008, at Al.
7. See, e.g., Levine, supra note 2, at 85.
8. See Andrew Koppelman, Corruption of Religion and the Establishment Clause, 50 WM. & MARY L. REV. (forthcoming 2009) (manuscript at 16-17), available at http:// ssrn.com/abstract=1268406 (proposing a "religion-protective" argument that is able to "provide [] a powerful reason for government, as a general matter, to keep its hands off religious doctrine").
9. Program, supra note 1.
10. See generally DAN BROWN, THE DA VINCI CODE (2003).
11. The "Arian Controversy" was a "controversy over Christ's divinity, which erupted with violent intensity during the reign of Constantine when the presbyter Arius of Alexandria challenged his bishop, Alexander, on the question of God the Son's relation to God the Father." THOMAS BOKENKOTTER, A CONCISE HISTORY OF THE CATHOLIC CHURCH 58 (1977); cf. PETER BROWN, THE RISE OF WESTERN CHRISTENDOM 40-41 (1977) (describing the hostility between Arius and Alexander giving rise to the Arian Controversy); 1 JAROSLAV PELIKAN, THE CHRISTIAN TRADITION 200-03 (1971) (same).
12. See BOKENKOTTER, supra note 11, at 61 ("With the unity of the Church at stake, Constantine convoked the first ecumenical council, which met at Nicaea in 325.").
13. U.S. 78 (1944).
14. Id. at 87. For a close study of the Ballard case, see JOHN T. NOONAN, THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIMENT OF RELIGIOUS FREEDOM 141-76 (1998).
15. U.S. (13 Wall.) 679 (1872).
16. Id. at 733.
17. Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969).
18. Id.
19. See Lemon v. Kurtzman, 403 U.S. 602, 625 (1971).
20. Presbyterian Church, 393 U.S. at 449.
21. See, e.g., Neela Banerjee, Episcopal Church Remains Divided on Gay Issues, N.Y. TIMES, Sept. 22, 2007, at A9.
22. See, e.g., Jane Macartney, China Tells Living Buddhas to Obtain Permission Before They Reincarnate, TIMES (LONDON) , Aug. 4, 2007, at 36.
23. See Jessica Powley Hayden, Note, Mullahs on a Bus: The Establishment Clause and U.S. Foreign Aid, 95 GEO. L.J. 171, 177 (2006).
24. Cf. Cass R. Sunstein, Misery and Company, NEW REPUBLIC, Oct. 22, 2008, at 39, 41 (reviewing MARC SAGEMAN, LEADERLESS JIHAD: TERROR NETWORKS IN THE TWENTY-FIRST CENTURY (2008) and acknowledging the "importance of introducing moderation into both offline and online discussions among Muslims").
25. See Bruker v. Marcovitz, [2007] 3 S.C.R. 607, 636, 2007 SCC 54 (Can.); see also id. at 641 ("The significant intrusions into our constitutionally and statutorily articulated commitments to equality, religious freedom and autonomous choice in marriage and divorce that flow from the breach of his legal obligation are what weigh most heavily against him.").
26. See id. at 640.
27. See, e.g., Volokh, supra note 5.
28. See id.
29. See id.
30. Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969)
31. Richard W. Garnett, Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine, 51 UCLAL. REV. 1645, 1647 (2004); cf. Levine, supra note 2, at 88 ("[I]t is sensible that courts should not serve as a theology board and should try to refrain from judicially imposed religious interpretation.").
32. Garnett, supra note 31, at 1648.
33. Id. at 1649-50 (footnotes omitted).
34. See Levine, supra note 2, at 86 (suggesting that the Court's "increasing refusal to consider carefully the religious questions central to many cases" could "lead to a number of disturbing results").
35. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-11, at 1237 n.73 (2d ed. 1988) (citing Acts 18:12-16).
36. Acts 18:14-16 (New American Bible).
37. JOHN LOCKE, A LETTER CONCERNING TOLERATION (1689), reprinted in 5 THE FOUNDERS' CONSTITUTION 52, 53 (Philip B. Kurland & Ralph Lerner eds., 1987). Of course, for Locke, the "care of things of this world" comprehended many tilings that we today, like Justice Brennan in the Presbyterian Church case, would likely regard as being of "purely ecclesiastical concern." Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969); see 2 KENT GREENAWALT, RELIGION AND THE CONSTITUTION 20-21 (2008) (noting that Locke did not argue for complete or total establishment).
38. James Madison, A Memorial and Remonstrance Against Religious Assessments (1785), in SELECTED WRITINGS OF JAMES MADISON 21, ¶ 5, at 24 (Ralph Ketcham ed., 2006).
39. The discussion that follows, of Presbyterian Church and other "no religious decisions" decisions, appeared earlier in Garnett, supra note 31, at 1646-59. For other detailed examinations of these decisions, see, for example, John E. Fennelly, Property Disputes and Religious Schisms: Who Is the Church?, 9 ST. THOMAS L. REV. 319, 319-30 (1997); Greenawalt, supra note 2, at 1846-63; Levine, supra note 2, at 88-92; Robert E. Rodes, Jr., The Last Days of Erastianism-Forms in the American Church-State Nexus, 62 HARV. THEOLOGICAL REV. 301, 307-17 (1969); Louis J. Sirico,Jr., Church Property Disputes: Churches as Secular and Alien Institutions, 55 FORDHAM L. REV. 335, 338 (1986).
40. See Presbyterian Church, 393 U.S. at 443.
41. Id.
42. See id.
43. Id.
44. Id. (internal quotation marks omitted).
45. Id. at 444. The case's implied-trust and departure-from-doctrine theory "derives from principles fashioned by English courts." Id. at 443 n.2.
46. Id. at 443. The Supreme Court of Georgia affirmed. Presbyterian Church v. E. Heights Presbyterian Church, 159 S.E.2d 690, 701 (Ga. 1968).
47. See Presbyterian Church, 393 U.S. at 444.
48. See id. at 441, 444.
49. Justice Harlan wrote separately, to clarify a specific point, but nonetheless concurred injustice Brennan's opinion. See id. at 452 (Harlan, J., concurring).
50. Id. at 445 (majority opinion).
51. Id.
52. Id. at 449.
53. Id. at 445-46 (discussing Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872)); see also id. at 450 ("[T]he departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion-the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role."); id. at 449 ("First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.").
54. Id. at 446 (quoting Watson, 80 U.S. (13 Wall.) at 729).
55. Id. (quoting Watson, 80 U.S. (13 Wall.) at 729).
56. See id. at 448 (quoting Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 116 (1952)).
57. Id. (quoting Kedroff, 344 U.S. at 116).
58. Id. (quoting Kedroff, 344 U.S. at 116).
59. EUGENE VOLOKH, THE FIRST AMENDMENT 853-63 (2d ed. 2005). Professor Tribe, in his treatise, treats these cases, and this "principle," primarily under the heading of the prohibition on excessive entanglement, TRIBE, supra note 35, § 14-11, at 1226-specifically, "doctrinal entanglement in religious issues"-between government and religion. Id. § 14-11, at 1231.
60. The Watson case is discussed in some detail in Kedroff, 344 U.S. at 110-17.
61. Presbyterian Church, 393 U.S. at 445.
62. Id. at 445 & n.4. As the Presbyterian Church Court noted, several post-Watson "nonconstitutional" decisions-while "recogniz[ing] that there might be some circumstances in which marginal civil court review of ecclesiastical determinations would be appropriate," id. at 447-reiterated the notion that "'[i]n the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical . . . are accepted in litigation before the secular courts as conclusive,'" id. (quoting Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929)).
63. Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1872).
64. U.S. 94 (1952).
65. See id. at 95.
66. Id. at 107.
67. Id. But see id. at 130 (Jackson, J., dissenting) ("[The law] has not interfered with . . . anyone's exercise of his religion. New York has not outlawed the Soviet-controlled sect nor forbidden it to exercise its authority or teach its dogma in any place whatsoever except on this piece of property ...."). As the Court's discussion of the relevant facts makes clear, the underlying dispute within the church-and the New York legislature's efforts to address and resolve it-is difficult to separate from the "political disturbances which culminated ... in the Bolshevik Revolution of 1917," id. at 102 (majority opinion), later relations between the church and the Soviet government, and relations between that government and the United States. Interestingly, the Justices noted that the New York Court of Appeals had taken judicial notice that "the Russian Government exercised control over the central church authorities and that the American church [had] acted to protect its pulpits and faith from such influences," and had also stated that the "Legislature's reasonable belief in such conditions justified the State in enacting a law to free the American group from infiltration of such atheistic or subversive influences," id. at 108-09; see also id. at 117 ("The Court of Appeals of New York recognized, generally, the soundness of the philosophy of ecclesiastical control of church administration and polity but concluded that the exercise of that control was not free from legitimate interference."). And, the Supreme Court likewise seems to have been wary of the "dangers" of "subversive action" and "political use of church pulpits." Id. at 109; see also id. at 127 (Jackson, J., dissenting) ("[W]e have an ostensible religious schism with decided political overtones."); id. at 131 ("I do not think New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution."). In his concurring opinion, Justice Frankfurter elaborated on the fear of "political religion," noting that the "fear, perhaps not wholly groundless, that the loyalty of its citizens might be diluted by their adherence to a church entangled in antagonistic political interests, reappears in history as the ground for interference by civil government with religious attachments." Id. at 123-24 (Frankfurter, J., concurring). Byway of illustration, Justice Frankfurter reminded his readers that "[i]t was on this basis, after all, that Bismarck sought to detach German Catholics from Rome by a series of laws not too different in purport from that before us today." Id. at 124.
68. Id. at 108 (majority opinion).
69. Id.
70. Id. at 121 (Frankfurter, J., concurring).
71. Id. at 122. Justice Frankfurter emphasized also that legislatures have no power "to settle conflicts of religious authority and none to define religious obethence." Id.
72. Id. at 125.
73. U.S. 696 (1976).
74. Id. at 698.
75. Id.
76. Id. at 697-98. His "immethate reaction," actually, was to "refuse to accept the [decisions of the Mother Church] on the ground that [they] contravened the administrative autonomy of the Diocese guaranteed by the Diocesan constitution." Id. at 704. After several rounds of Church proceedings, he filed suit in Lake County, Illinois. Id. at 704-07.
77. Id. at 698. Justices Rehnquist and Stevens, dissenting, took a strikingly different view of the case's history and basic nature. See id. at 726 (Rehnquist, J., dissenting) (describing the issue in the case as simply determining the "real Bishop of the . .. Diocese" through "application of . . . canon law," without the injection of preference into the matter).
78. Id. at 708 (majority opinion).
79. Cf id. at 727 (Rehnquist, J., dissenting) ("The cases upon which the Court relies are not a uniform line of authorities leading inexorably to reversal of the Illinois judgment."); id. at 733 ("The rule of those cases ... is that the government may not displace the free religious choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect.").
80. Id. at 708 (majority opinion). In Justice Brennan's view, "this case essentially involves not a church property dispute, but a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals." Id. at 709. Quoting his own concurrence in Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367 (1970) (per curiam), Justice Brennan warned that "'[t]o permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] church so as to decide . . . religious law [governing church polity] .. . would violate the First Amendment in much the same manner as civil determination of religious doctrine.'" Serbian E. Orthodox Diocese, 426 U.S. at 709 (latter alterations in original) (quoting Md. & Va. Eldership, 396 U.S. at 369 (Brennan, J., concurring)).
81. Kent Greenawalt, Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance, 71 S. CAL. L. REV. 781, 781 (1998).
82. See United States v. Ballard, 322 U.S. 78, 86 (1944); see also Watson v. Jones, 80 U.S. (13 Wall.) 679, 728 (1872) ("The law knows no heresy----").
83. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714 (1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."); Ballard, 322 U.S. at 86-88 (holding that the district court "properly withheld from the jury all questions concerning the truth or falsity" of religious beliefs, while allowing the sincerity of those beliefs to be determined).
84. See, e.g., Employment Div. v. Smith, 494 U.S. 872, 886-87 (1990) ("It is no more appropriate for judges to determine the 'centrality' of religious beliefs before applying a 'compelling interest' test in the free exercise field, than it would be for them to determine the 'importance' of ideas before applying the 'compelling interest' test in the free speech field."); Hernandez v. Comm'r, 490 U.S. 680, 699 (1989) ("It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith . . . .").
85. See, e.g., Aguilar v. Felton, 473 U.S. 402, 409 (1985) (concluding that New York City's "system for monitoring the religious content of publicly funded Title I classes in . . . religious schools . . . inevitably results in the excessive entanglement of church and state"); Lemon v. Kurtzman, 403 U.S. 602, 607 (1971) (holding that a state law allowing superintendants to reimburse Catholic schools for supplies and salaries caused excessive entanglement and therefore was unconstitutional).
86. VOLOKH, supra note 59, at 916-21 (discussing "no delegation to religious institutions" principle under which "the government may not delegate certain kinds of government power to religious institutions").
87. Greenawalt, supra note 2, at 1844.
88. Program, supra note 1.
89. See id.
90. Greenawalt, supra note 81, at 843.
91. Id.
92. Cf. 2 GREENAWALT, supra note 37, at 6-13 (listing and explaining a number of "interrelated values lying behind nonestablishment of religion").
93. Madison, supra note 38, ¶ 1, at 22. Madison's use of the term "Civil Society"- a term that, in contemporary usage, refers not so much to the institutions of government as to the intermethate space and associations between persons and the state- complicates the task of evaluating his claim.
94. Vincent Blasi has observed that: If "cognizance" in this context means "knowledge," "awareness," "notice," or "acknowledgment," surely a voucher system takes such cognizance of religion. Just as surely, under that interpretation a no-cognizance principle is a practical impossibility in the modern welfare state, or for that matter even in the minimal state of Madison's day. Vincent Blasi, School Vouchers and Religious Liberty: Seven Questions from Madison's Memorial and Remonstrance, 87 CORNELL L. REV. 783, 789 (2002) (footnote omitted). Madison's point, instead, Blasi continues, is a jurisdictional one: "[T]he civil magistrate has no responsibility whatsoever for the way each citizen understands and discharges his duty to the Creator." Id. In any event, and as Philip Hamburger has observed, the provision that Madison actually proposed for inclusion in the Bill of Rights was a "far cry from [the position] that religion [is] 'wholly exempt' from the cognizance of civil society." PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 105 (2002).
95. CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 6-7 (2007).
96. U.S. 306 (1952).
97. Id. at 312.
98. My colleague, Robert Rodes, has used the term "nexus"-rather than, for example, "wall of separation"-in his church-state work. See, e.g., Rodes, supra note 39. The word is, I think, a helpful one. As I have written elsewhere, the word "suggests a relation, even a symbiosis, between two distinct things-neither a collapse of one into the other nor a rigid segregation of the one from the other." Richard W. Garnett, Tribute, Pluralism, Dialogue, and Freedom: Professor Robert Rodes and the Church-State Nexus, 22 J.L. & RELIGION 503, 512 (2006-07); see also Thomas L. Shaffer, The Christian Jurisprudence of Robert E. Rodes, Jr., 73 NOTRE DAME L. REV. 737, 757 (1998) ("[T]he foundation of [Rodes'] church-state theory is that the two are so intertwined-so much the remnant of Christendom-that they could not part even if they wanted to.").
99. EISGRUBER & SAGER, supra note 95, at 7; see also, e.g., TRIBE, supra note 35, § 14-11, at 1232 ("[I]t is inevitable that at least some disputes affecting religion or touching the interests of religious institutions will be brought before the civil courts or other secular agencies.").
100. U.S. 1 (1947).
101. Id. at 18.
102. Id. at 31-32 (Rutledge, J., dissenting).
103. Kent Greenawalt, Religion As a Concept in Constitutional Law, 72 CAL. L. REV. 753, 753 (1984).
104. For more on the interesting problem of defining religion, and of the connection between this problem and the enterprise of providing judicially enforceable protection to religious freedom, see generally WINNIFRED FALLERS SULLIVAN, THE IMPOSSIBILITY OF RELIGIOUS FREEDOM 89-137 (2005) (describing law and society's various attempts at defining religion); Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. ILL. L. REV. 579, 587-604 (discussing how to create an "ideal" constitutional definition of religion); Greenawalt, supra note 103, at 756-62, 776-807 (discussing how courts should undertake the "threshold" question of defining religion in religious liberty cases); Koppelman, supra note 8 (manuscript at 111-20) (delivering a proposal for defining "religion" for constitutional purposes); Andrew Koppelman, Secular Purpose, 88 VA. L. REV. 87, 125-40 (2002) (attempting to reconstruct the secular purpose doctrine through a more clear method for defining religion); Eduardo Peñalver, Note, The Concept of Religion, 107 YALE L.J. 791, 814-21 (1997) (arguing for an "evolving" constitutional definition of religion).
105. See Program, supra note 1.
106. See Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993 (1990) [hereinafter Laycock, Disaggregated Neutrality]; Douglas Laycock, Substantive Neutrality Revisited, 110 W. VA. L. REV. 51 (2007) [hereinafter Laycock, Substantive Neutrality].
107. But see, e.g., EISGRUBER & SAGER, supra note 95, at 109 (describing Justice O'Connor's argument that religious freedom is of "a lesser status than . . . free speech"); James W. Nickel, Who Needs Freedom of Religion?, 76 U. COLO. L. REV. 941 (2005) (arguing that freedom of religion can derive from our other individual freedoms and is therefore disposable as a distinct category).
108. See JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? 49 (1996). Garvey's view is consonant with the one presented in the Second Vatican Council's Declaration on Religious Freedom promulgated by Pope Pius VI in 1965. SECOND VATICAN ECUMENICAL COUNCIL, DIGNITATIS HUMANAE [DECLARATION ON RELIGIOUS FREEDOM] (1965) [hereinafter DIGNITATIS HUMANAE] , available at http://www.vatican.va/archive/hist- councils/ii-vatican-council/documents/vat- ii-decl-19651207-dignitatis-humanae- en.html. There, the Council fathers affirmed the link between a "sense of the dignity of the human person" and the right to the "free exercise of religion," id. ¶ 1, while insisting that, [g]overnment . . . ought indeed to take account of the religious life of the citizenry and show it favor, since the function of government is to make provision for the common welfare. However, it would clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious. Id. ¶ 3; cf. Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1, 9, 11 (2000) (noting that "[t]he very text of the Constitution 'singles out' governmental acts respecting an establishment of religion or prohibiting the exercise of religion for special protections that are not accorded to any aspect of human life," but also insisting that "[n]ot only must religion be 'unimpaired,' ... it must also be unsponsored, uncontrolled, and unpromoted").
109. See Andrew Koppelman, Is It Fair to Give Religion Special Treatment?, 2006 U. ILL. L. REV. 571 (arguing that it is fair for government to privilege religion, so long as it does so abstractly).
110. See supra notes 103-105 and accompanying text.
111. See generally SULLIVAN, supra note 104, at 138-59 (noting that the religion of ordinary people "fits uneasily into the spaces allowed for religion in the public square and in the courtroom").
112. See, e.g., DIGNITATIS HUMANAE, supra note 108, ¶ 3 ("No . . . human power can either command or prohibit [religious] acts . . . .").
113. See generally Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. PA. L. REV. 149, 153-66 (1991) (describing the religious world view that historically underlies our constitutional commitment to religious freedom).
114. Cf. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 735 (1976) (Rehnquist,J., dissenting) ("[W]hile there may be a number of good arguments that civil courts of a State should, as a matter of the wisest use of their authority, avoid adjudicating religious disputes to the maximum extent possible, they obviously cannot avoid all such adjudications.").
115. Greenawalt argues for the application of this rule in Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance, supra note 81, at 781.
116. See, e.g., TRIBE, supra note 35, § 14-11, at 1232-42; Koppelman, supra note 8 (manuscript at 7) ("A theme that runs through this area of the law is the state's incompetence to decide matters that relate to the interpretation of religious practice or belief."); Levine, supra note 2, at 85-86 ("Justices have provided various rationales for the Court's approach. Some Justices have suggested practical justifications .... Other Justices have cited constitutional considerations . . . .").
117. See generally 2 GREENAWALT, supra note 37, at 6-13 (listing and explaining a number of "interrelated values lying behind nonestablishment of religion"); JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 41 (2d ed. 2005) ("Puritans, Evangelicals, Republicans, and Enlightenment exponents-these four groups of founders held up the four corners of the wide and swaying canopy of opinion on religious liberty in eighteenth-century America.").
118. Greenawalt, supra note 81, at 843.
119. See id.
120. Some of the discussion that follows is adapted from an earlier work of mine. See Richard W. Garnett, The Freedom of the Church, 4 J. CATH. SOC. THOUGHT 59 (2006).
121. TRIBE, supra note 35, § 14-11, at 1232 n.46 (quoting PAUL G. KAUPER, RELIGION AND THE CONSTITUTION 26 (1964)).
122. Cf. NOONAN, supra note 14, at 169 (noting, in the context of a discussion of the Ballard case, that for a "majority of judges" the "test of belief being religious was the sincerity with which the belief was held" and not the "content of the belief).
123. See Madhavi Sunder, Piercing the Veil, 112 YALE L.J. 1399, 1415-25 (2003) (noting that "religion" is "constructed" in liberal theory as private, entirely beyond reason and its methods).
124. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 714-15 (1976) (footnote omitted).
125. Jared A. Goldstein, Is There a "Religious Question" Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 CATH. U. L. REV. 497, 533 (2005).
126. See id.
127. JOHN HENRY NEWMAN, AN ESSAY ON THE DEVELOPMENT OF CHRISTIAN DOCTRINE 3 (6th ed., Univ. of Notre Dame Press 1989) (1845); see also Sunder, supra note 123, at 1423 ("[R]eligion is much more . . . subject to reasoned argument and change than earlier theorists acknowledged.").
128. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 715 (1981) ("Intrafaith differences . . . are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences . . . ."); Serbian E. Orthodox Diocese, 426 U.S. at 714 n.8 ("Civil judges obviously do not have the competence of ecclesiastical tribunals in applying the 'law' that governs ecclesiastical disputes . . . ."); Watson v. Jones, 80 U.S. (13 Wall.) 679, 729 (1872) ("It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of [church] bodies as the ablest men in each are in reference to their own.").
129. See sources cited supra note 128.
130. The Federal Energy Regulatory Commission (F.E.R.C.) is an independent agency responsible for regulating interstate transmission of oil, gas, and electricity. For more information on what F.E.R.C. does and how it operates, see About FERC, http://www.ferc.gov/about/about.asp (last visited Nov. 23, 2008).
131. In his discussion of the Ballard case, Judge Noonan suggests a variation on the judicial-incompetence rationale, noting that "an empathetic pilgrimage of the imagination" would seem to be a "necessary condition for judging a religious claim" and asking, "can a judge be a pilgrim?" NOONAN, supra note 14, at 176.
132. See Levine, supra note 2, at 88 ("[I]t is sensible that courts should not serve as . . . theology board[s] . . . .").
133. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 682-83 (2001).
134. CATECHISM OF THE CATHOLIC CHURCH § 423, at 106 (2d ed. 2000).
135. Cf. Greenawalt, supra note 81, at 839 ("[S] traightforward determinations of religious requirements by civil courts may be appropriate if these determinations serve secular interests.").
136. See Koppelman, supra note 8 (manuscript at 14).
137. See Andrew Koppelman, The Troublesome Religious Roots of Religious Neutrality, 84 NOTRE DAME L. REV. 865, 869-70 (2009).
138. See id. at 870.
139. Levine, supra note 2, at 131.
140. Madison, supra note 38, ¶ 7, at 24.
141. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 625 (1971) (Douglas, J., concurring) ("[Our] Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice . . . ."); see also Gerard V. Bradley, Dogmatomachy- A "Privatization" Theory of the Religion Clause Cases, 30 ST. LOUIS U. L.J. 275, 280-317 (1986) (describing and evaluating the Supreme Court's normative jurisprudence of "private" religion); Richard W. Garnett, A Quiet Faith? Taxes, Politics, and the Privatization of Religion, 42 B.C. L. REV. 771, 795-98 (2001) (describing the Supreme Court's approach to "privatizing religion" and arguing that such an approach inappropriately requires religion to reform its conception of itself); cf. Richard S. Myers, The Supreme Court and the Privatization of Religion, 41 CATH. U. L. REV. 19, 58 (1991) (explaining that, despite the privatization thesis' "significant role" in shaping establishment clause doctrine, there has been a shift "toward the view that religion has a valuable role to play in the public realm").
142. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 735 (1976) (Rehnquist, J., dissenting) ("[W]hile there may be a number of good arguments that civil courts of a State should, as a matter of the wisest use of their authority, avoid adjudicating religious disputes to the maximum extent possible, they obviously cannot avoid all such adjudications.").
143. See generally STEVEN D. SMITH, GETTING OVER EQUALITY: A CRITICAL DIAGNOSIS OF RELIGIOUS FREEDOM IN AMERICA 6 (2001) (arguing that courts should pursue the value of tolerance over a blind neutrality and that such tolerance is achievable precisely because of "our theistic heritage and commitments"); Stanley Fish, Mission Impossible: Settling the Just Bounds Between Church and State, 97 COLUM. L. REV. 2255 (1997) (critiquing classical liberal justifications for toleration on the basis that government will inevitably favor the beliefs and values it prefers).
144. See Garnett, supra note 31, at 1693-700.
145. Nelson Tebbe, Excluding Religion, 156 U. PA. L. REV. 1263, 1270 (2008). For additional discussion of Tebbe's article, see Richard W. Garnett, "Excluding Religion": A Response, 157 U. PA. L .REV. PENNUMBRA (forthcoming 2008), available at http:// ssrn.com/abstract=1300604.
146. Tebbe, supra note 145, at 1267.
147. Id. at 1335.
148. Id. at 1327.
149. Id. at 1321.
150. Id. at 1320.
151. See Garnett, supra note 31, at 1693.
152. See Michael W. McConnell, The New Establishmentarianism, 75 CHI.-KENT L. REV. 453, 457-58 (2000) (observing that "a liberal society is always at risk" and is "vulnerable at its foundations").
153. Id. at 455.
154. See supra notes 16-19 and accompanying text.
155. See, e.g., DIGNITATIS HUMANAE, supra note 108, ¶ 13 ("The freedom of the Church is the fundamental principle in what concerns the relations between the Church and governments and the whole civil order. . . . [T]he Church claims freedom ... as a spiritual authority, established by Christ the Lord, upon which there rests, by divine mandate, the duty of . . . preaching the Gospel . . . .").
156. See supra notes 121-134, 141-154 and accompanying text.
157. See supra notes 59-87 and accompanying text.
158. Garnett, supra note 98, at 521. For a very different view, see generally, for example, Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory: Widespread Clergy Abuse and Institutional Cover-up, 29 CARDOZO L. REV. 225, 232-38 (2007) (criticizing the church-autonomy theory).
159. Steven D. Smith, Separation and the "Secular": Reconstructing the Disestablishment Decision, 67 TEX. L. REV. 955 (1989).
160. Id. at 1018; cf. 2 GREENAWALT, supra note 37, at 234 (noting that it is "doubtful" whether religious communities "should be able to engage the power of government directly on their behalf).
161. But see, e.g., Frederick Mark Gedicks, Three Questions About Hybrid Rights and Religious Groups, 117 YALE L.J. POCKET PART 192 (2007), http://thepocketpart.org/ 2008/03/24/gedicks.html ("Every once in a while the Court comes out with a decision that hints at a doctrine of first-order group rights, which tempts law review commentators ... to write futilely detailed accounts of the need for a first-order doctrine and what it should look like. ... At this point, the smart money says that hints are all that a first-order group rights doctrine is ever going to be." (footnotes omitted)).
162. See Douglas Laycock, 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, 1393-94 (1981).
163. Id. at 1394. See generally Garnett, supra note 120 (discussing the idea of libertas eccksiae, or the freedom of the Church, in American constitutional law).
164. As was noted earlier, Professor Levine has warned that the hands-off rule can, if misapplied or misconstructed, "lead to a number of disturbing results." See Levine, supra note 2, at 86.
165. Mark DeWolfe Howe, The Supreme Court, 1952 Term-Foreword: Political Theory and the Nature of Liberty, 67 HARV. L. REV. 91 (1953).
166. Id. at 91.
167. Id. at 92. Howe suggested-going beyond the Court in Kedroff--that the decision's "pluralism" could justifiably be extended to other entities, including "schools and universities." Id. at 94.