Academic journal article Notre Dame Law Review

The Supreme Court's Hands-Off Approach to Religious Doctrine: An Introduction

Academic journal article Notre Dame Law Review

The Supreme Court's Hands-Off Approach to Religious Doctrine: An Introduction

Article excerpt

Although the current state of the United States Supreme Court's Religion Clause (1) jurisprudence is an area of considerable complexity, (2) the Court's approach is largely premised upon a number of basic underlying principles and doctrines. In 1971, the Court decided Lemon v. Kurtzman, (3) which delineated a three-part test for determining whether a law violates the Establishment Clause. (4) While the precise contours of the Lemon test have been subject to substantial refinement and modification, (5) the decision has not been overruled, and it remains the starting point for the Court's rulings in this area. (6) In 1990, in Employment Division v. Smith, (7) the Court seemed to upset settled free exercise law, in favor of a broad policy rejecting religious challenges to neutral statutes of general applicability. (8) The Court's decision in Smith prompted considerable criticism, (9) as well as subsequent legislation aimed at reversing and limiting its effect. (10) Nevertheless, the decision stands and, with some exceptions, represents the current state of free exercise law.

This Symposium issue of the Notre Dame Law Review explores another underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The program description invited a variety of modes of analysis, ranging from descriptive considerations of the extent to which the Court's doctrine can, indeed, be characterized as hands-off, to normative justifications for--and critiques of--the Court's approach, to more practical and consequentialist arguments supporting or opposing the Court's position. (11)

On a descriptive level, there is ample Supreme Court case law supporting the proposition that the Court generally eschews decisionmaking that requires adjudication of religious doctrine. (12) As a thresh old matter, as far back as 1944, the Court emphasized that it may not determine the "truth or falsity" of a religious belief. (13) More recently, beginning in 1969, when faced with differing views of religious tenets, the Court has refused to engage in "interpretation of particular church doctrines and the importance of those doctrines to the religion," (14) and has stated plainly that "[c]ourts are not arbiters of scriptural interpretation." (15)

Notably, though, in some cases, aspects of the majority's hands-off approach have faced objections leveled by a number of Justices in concurring and dissenting opinions. (16) Moreover, the current iteration of the Court's approach arguably represents the final product of a process in which, over the course of just a few decades, the hands-off doctrine has undergone considerable modification and extension. (17) Additionally, there remain areas of church-state law in which courts may not always be able to avoid the types of judgments that the hands-off approach seems to preclude. (18) Nevertheless, just as Smith and Lemon continue to depict the general contours of the Court's approach to Free Exercise and Establishment Clause law, respectively, the hands-off approach accurately describes the Court's general attitude toward resolving questions of religious doctrine. (19)

Therefore, rather than addressing the substantive nature of the Court's hands-off doctrine, the contributors to this Symposium focus on the normative and practical justifications for the Court's approach. As Professor Richard Garnett observes in his Symposium essay, (20) descriptively, the hands-off rule is clear: "state actors should not render religious decisions--decisions involving the resolution of religious questions or the enforcement of religious obligations; we should not, the rule would suggest, use secular law to assure observance of practices with religious significance. …

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