March 31, 2011

Churches in Court

Looking Ahead

This area of church-state law covers a wide range of legal contexts – including property disputes, employment conflicts and tort actions. But despite their factual differences, all of the cases discussed above raise the issue of how the government should relate to religious communities.

More than 100 years of Supreme Court case law has solidified the constitutional principle that the government may regulate religious institutions but only if in doing so the government does not need to disturb the internal governance of the church or interpret religious doctrine. The precise constitutional source of this principle is contested, with some tracing it to the Free Exercise Clause, others locating it in the Establishment Clause and still others finding the principle in both religion clauses. But regardless of its constitutional source, the principle is firmly and deeply entrenched in the nation’s constitutional tradition.

Even with widespread agreement on this principle, however, much uncertainty remains in this area of the law. This uncertainty is largely a result of reasonable disagreement on how to apply the principle to particular controversies. While some judges seek to ensure that religious organizations maintain robust rights to govern themselves, even if that requires denying remedies to injured individuals, other judges believe it is more important to redress individual wrongs, even if that requires impinging on a religious organization’s autonomy. Given these competing goals, courts seem likely to continue to be divided in how they view the appropriate constitutional balance. The Supreme Court is likely to have ample opportunity to clarify this area of the law in coming years.


This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law at George Washington University Law School; David Masci, Senior Researcher at the Pew Forum on Religion & Public Life; Jesse R. Merriam, doctoral candidate in political philosophy at The Johns Hopkins University; and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at George Washington University Law School.

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