Academic journal article Brigham Young University Law Review

"Omalous" Autonomy

Academic journal article Brigham Young University Law Review

"Omalous" Autonomy

Article excerpt


One puzzle of religious institutional autonomy and the free exercise of religion is, of course, this: In 1990, the Supreme Court held in Employment Division v. Smith that, in most cases, religious beliefs create no special constitutional right to an exemption from "neutral, generally applicable" laws.1 The Court in Smith largely discarded a balancing test it had embraced in Sherbert v. Verner almost thirty years earlier, under which laws that imposed "incidental burden[s] on the free exercise of . . . religion" would be struck down unless justified by a "'compelling state interest in the regulation of a subject within the State's constitutional power to regulate.'"2 Justice Scalia's majority opinion in Smith concluded that, while the compelling government interest requirement in other areas of constitutional law establishes "constitutional norms," its role in Free Exercise jurisprudence since Sherbert only created a "constitutional anomaly"3 by granting religious believers a personalized exemption from otherwise valid laws.4 In some ways, Smith returned the Court to the position it had famously taken as early as 1879 in Reynolds v. United States?

But still sitting in an often-overlooked corner of religion and law jurisprudence is a distinct set of doctrines, covering a variety of issues that come under the general rubric of institutional autonomy, by which American churches and religious communities are insulated from the full reach of the neutral, generally applicable laws to which comparable nonreligious institutions are subject. For example, religious communities are generally not subject to antidiscrimination laws when it comes to the employment of clergy,6 nor are they subject to the same requirements regarding the structure of corporate governance.7

So, the question arises, does religious institutional autonomy survive Smith?8 More to the point-and putting aside the lawyerly game of narrowing and distinguishing precedent-does institutional autonomy survive the theory that underlies Smith"?9

This is an important practical question: I devote the last half of this Article, for example, to the implications of religious institutional autonomy for legal responses to the current clergy sexual abuse scandal. In one sense, though, it is also a silly question, even as amended. The doctrine of institutional autonomy was in place long before Sherbert. Watson v. Jones,10 the Marbury of institutional autonomy, dates from the same era as Reynolds itself, and courts recognized the doctrine, whether as a para-constitutional or constitutional principle, during the entire period between Reynolds and Sherbert.11 Moreover, Smith cites the leading institutional autonomy cases approvingly, and Justice Scalia's opinion suggests no sense of contradiction.12 Also, lower court decisions have tended to affirm the continued, if sometimes compromised, vitality of institutional autonomy.13

The better question, then, is not whether institutional autonomy survives Smith, but rather why it survives-how, to what extent, and in what form. In other words, why, how, to what extent, and in what form, does a special, constitutionally required regime for churches survive Smith's apparent rejection of the proposition that the Constitution demands a special regime for the free exercise of religion in general?

One obvious response is that Smith, even read broadly, merely removes institutional autonomy from the realm of free exercise, but that the doctrine still survives under the Establishment Clause.14 This cannot, however, be either the whole answer or the best answer. First, it is counterintuitive to imagine that institutional autonomy is not related to principles of free exercise.15 After all, even countries without establishment clauses-for that matter, countries with established churches-respect religious institutional autonomy.16 If the truth be told, institutional autonomy is, strictly speaking, neither a matter of free exercise nor of establishment;17 rather, it can most sensibly be understood as a distinct third rubric, grounded in the structural logic of the relation between the juridical expressions of religion and the state. …

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