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.
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.
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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