Pointy End of Pyramid Upended?

Now folks, there’s no doubt that the underlying quotes from a paper by Mark Helfrand look like hard reading. Nevertheless, the content is electric—so give it a shot. Let me try to sum up:

Helfrand takes on the concept of so-called “church autonomy”. At one extreme, critics of so-called church autonomy dispute the notion that churches should be allowed to float in a void beyond the reach of reason or torts or even civil accountability. At the other extreme are the crowd who constantly push to expand the boundaries of the concept so that it includes more and more protection for church authorities, resulting in more and more likelihood that internal church decisions of all types remain sheltered: immune from the restrictions and oversight of the state. Put into academic positions and personalities, the poles are illustrated by the writings of Marci Hamilton and Mark Chopko, the latter the long-time point man for the USCCB (United States Conference of Catholic Bishops).

The reason that this article by Helfrand matters is his reliance on previous Supreme Court decisions about church and state, back in the era when church property cases were being decided:

“…the Supreme Court understood the authority granted religious institutions as based upon two core principles: first, that the authority of religious institutions derived from the implied consent of its members; and second, that the decisions of religious institutions would be reviewed by civil courts for “fraud, collusion or arbitrariness…”

This definition for where church autonomy actually comes from (the people, not the hierarchy) is of supreme importance to Catholics. It obviously mirrors the theology of the People of God. As such, it is one definition that both rank and file church members as well as the hierarchy can buy into, unlike other church autonomy arguments which are founded on hierarchical succession (and maybe even on apostolic succession).

Thus, it would appear that this church autonomy argument has the potential to stand the following statement on its head “The Catholic Church in the United States is a hierarchical church.”

If it’s true that this “implied consent of the members” is what gives “church autonomy” its clout, this conveys an entirely different understanding than the top-down, insular, controlled, dogmatic, hierarchical way that “church autonomy” has been applied in the past.


Michael A. Helfand

[footnotes omitted for the most part; full text is here]


While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes even at the request of the parties.

In stark contrast, footnote four rejected this jurisdictional approach to the religion clauses; according to the Court’s logic, the ministerial exception – like other affirmative defenses – could be waived by the parties; and with such waiver, courts could adjudicate religious claims that had previously been deemed beyond the authority of the judicial system.
Far more than a procedural nicety, footnote four signaled a radical rejection of the prevailing paradigm.

However, the Court’s decision failed to explicitly provide a new vision of the relationship between church and state. To replace the discarded jurisdictional approach, this Article contends that the kernels of such a vision can be found in the Supreme Court’s early church property cases, which understood the autonomy of religious institutions as a constitutionalized version of arbitration. Thus, the authority of religious institutions – like the authority of arbitrators – was derived from the implied consent of its members and the decisions of religious institutions were subject to judicial review for misconduct.

While the Supreme Court’s later church property cases rejected this approach, returning to these core principles – consent and judicial review – provides the doctrinal foundations for the Court’s new framework for the relationship between church and state. And, applying this new framework can help resolve some of the pressing litigation questions left unresolved by the Supreme Court’s decision in Hosanna-Tabor.
page 27


Thus far, this Article has outlined the underlying logic and doctrinal developments behind the “jurisdictional” approach to the religion clauses. At its core, the jurisdictional approach understands the religion clauses as fortifying the wall of separation between church and state. On the one side of the wall stands the jurisdiction of the state, which is tasked with governing the “secular and temporal.” On the other side of the wall resides the jurisdiction of religion, which is charged with regulating religious faith, interpreting religious doctrine and resolving religious questions.

Importantly, the jurisdictional approach interpreted the religious clauses to affirm the limited authority of government by “foreclosing government from exercising authority over the spiritual domain.” This inability of courts to intervene in religious disputes stemmed from “a recognition . . . that the civil courts have no subject matter jurisdiction over the internal affairs of religious organizations.” Doctrinally, this framework could be cashed out in a number of ways. Most notably, the jurisdictional approach to the religion clauses understood courts as adjudicatively disabled from resolving religious disputes.

Accordingly, freedom from judicial intervention was not a right to be held and asserted by religious institutions. It was a structural restraint on courts, which required courts to avoid become entangled in religious disputes irrespective of whether or not the parties wanted the courts to do so. This remained true even if both parties wanted a court to resolve their dispute, for example, because the dispute is so deeply contested that it cannot be resolved within the religious institution’s own adjudicative framework. Thus, parties to a religious dispute could not waive the prohibition against judicial intervention in religious disputes any more than a private party can expand the constitutionally defined subject-matter jurisdiction of courts. On the jurisdictional account, parties could not wish away the incompetence of courts to adjudicate religious questions.

It is against this context that we begin to see the revolutionary impulse in footnote four of Hosanna-Tabor. Without briefing from the parties or discussion during oral argument, the Supreme Court held that the ministerial exception must be treated by courts not as a jurisdictional bar, but as an affirmative defense. Importantly, doctrines serve as jurisdictional bars when they circumscribe a court’s authority to hear the dispute submitted; by contrast, doctrines give rise to affirmative defenses where they speak to the merits of the claim, contesting whether the defendant’s “real-world conduct” can provide “a basis for suit” or a basis for legal liability.

While couched in civil procedure terminology, the Court’s holding undeniably undermined the growing momentum behind the jurisdictional approach to the religion clauses. As an affirmative defense, the ministerial exception could be waived, enabling parties to authorize courts to resolve disputes over the employment and termination of religious ministers. In this way, casting the ministerial exception as an affirmative defense provided courts with an entrée into the regulation of religious institutional life – so long as they received an invitation to do so. As a result, footnote four appeared to envision a far more permeable wall of separation between religion and state than its jurisdictional predecessor.
Indeed, footnote four could not be squared with the view that courts lack the competence to resolve religious disputes. If courts were truly adjudicatively disabled from addressing religious claims then how could the parties waive claims like the ministerial exception? 

By waiving such claims, courts would be authorized to adjudicate the underlying dispute. Such authority would be impossible if the religion clauses were interpreted to support judicial incompetence to resolve religious disputes. To the contrary, a jurisdictional view of the religion clauses would require courts to raise claims like the ministerial exception whether or not the parties chose to do so – an option apparently no longer available in the wake of footnote four.
Not surprisingly, commentators have struggled to understand what theory of the religion clauses might explain the Supreme Court’s simultaneous endorsement of church autonomy in Hosanna-Tabor and also the Court’s abandonment of the jurisdictional paradigm. 

For example, Mark E. Chopko and Marissa Parker criticized footnote four as inconsistent with the rest of the Court’s opinion in Hosanna-Tabor: “If the ministerial exception reflects [as the Court stated in Hosanna-Tabor] a rule that denies to civil magistrates the power to reach ‘an internal church decision that affects the faith and mission of the church itself,’ that issue presents not an affirmative defense, but an exercise of ‘competence’ as Watson used the word.”134 Accordingly, Chopko and Parker simply wish footnote four away: “regardless of the label, we think these cases will continue to present questions of ‘competence’ and therefore present threshold legal questions.”

Of course, this is just wishful thinking. Footnote four demands a reevaluation of the theory underlying the religion clauses – one that accounts both for the Supreme Court’s endorsement of church autonomy and for its refusal to adopt the jurisdictional approach to the religion clauses. The aim of this Article is to provide such a view. Indeed, to do so, we need not look further than the Supreme Court’s early church property cases, which grounded church autonomy not in the adjudicative incompetence of courts but in the affirmative authority granted religious institutions to govern the religious life of their members. 

In articulating this conception of church autonomy, the Supreme Court understood the authority granted religious institutions as based upon two core principles: first, that the authority of religious institutions derived from the implied consent of its members; and second, that the decisions of religious institutions would be reviewed by civil courts for “fraud, collusion or arbitrariness.” Thus, courts abstained from interfering in religious disputes because the members had impliedly consented to the authority of the religious institution and because the court could still review the decisions of the religious institution for fraud, misconduct or other forms of procedural naughtiness.

To be sure, the early church property cases only provide the foundational principles of an alternative view. These principles must be fleshed out and applied to contemporary concerns in order to provide a workable method for analyzing the scope of church autonomy. But by building a new paradigm on these twin principles – consent on the front end and civil court review on the back end – the early church property cases crafted a framework that largely tracks our longstanding system of commercial arbitration.

Arbitrators draw their authority not from the incompetence of courts, but from the consent of the parties to enter an alternative forum for adjudication. And while courts largely refrain from reviewing the substantive merits of an arbitrator’s decision, courts do patrol arbitration proceedings to ensure that decision is not the result of fraud, collusion or other forms of misconduct.
Importantly, these two principles – consent and review – are fundamentally linked. It is precisely because parties consent to an alternative forum for adjudication that courts must conduct a review of the process. If the process does not represent genuine adjudication on the merits, then the resulting decision can no longer claim legitimacy on the basis of the consent of the participants. Individuals submit to the authority of another forum because they seek good faith and merits based adjudication and regulation. Parties do not consent to decision-making that is corrupted by misconduct.

Moreover, once we unmoor church autonomy from judicial incompetence and instead hitch church autonomy to the consent of the parties, Hosanna-Tabor’s footnote four comes into focus. If religious institutional authority is grounded in an implied agreement between the institution and its members, then surely those very same parties can employ that same consent mechanism to authorize courts to resolve intractable religious disputes. Thus, to conceptualize the ministerial exception as an affirmative defense also empowers religious institutions and their employees to jointly agree to waive such defenses. Like the authority of an arbitrator, institutional autonomy is not inherent or mysterious – and it is not based on judicial inability to resolve the dispute. 

Footnote four, in understanding the ministerial exception as an affirmative defense, opened the door for courts – at the request of the parties – to resolve religious disputes. Put differently, church autonomy functions simply as an implied arbitration clause where religious institutions are impliedly authorized to govern religious matters and resolve religious disputes. But because such authority is based on consent, religious parties can also opt out.
In this way, the early church autonomy cases endorsed a constitutionalized version of arbitration. The autonomy of religious institutions derived from the implied consent and courts policed the decisions of religious institutions for misconduct. But to understand how these principles might be applied to the contemporary dilemmas of church autonomy requires further elaboration and bringing these principles into more direct conversation with principles of arbitration.

page 66


As many have noted, the Supreme Court’s decision in Hosanna-Tabor represented a strong endorsement of autonomy for religious institutions over core religious matters. But Hosanna-Tabor represents a radical reformulation of the relationship between church and state, discarding a jurisdictional approach that had become increasingly popular among courts and scholars. In its place stands footnote four, which embraces the ministerial exception as an affirmative defense; accordingly the ministerial exception can be waived and parties can authorize courts to adjudicate what are, in essence, religious disputes. In so doing, the Supreme Court has presented a far more dynamic view of the relationship between church and state, constructing a wall of separation that is far more permeable than the jurisdictional approach to the religion clauses ever allowed.

This dynamic approach, however, needs its own doctrinal and philosophical foundations. Such a foundation is readily available in the Court’s early – and long marginalized – church property cases. Those cases built notions of church autonomy on the implied consent of a religious institutions’ membership. At the same time, these early church property cases recognized that if the authority of religious institutions is tied to the consent of the membership, then such authority can only extend to good faith rulemaking and adjudication. Where religious institutions engage in misconduct, there can be no claim to implied consent and, in turn, no claim to autonomy from judicial intervention. Grounded in principles of implied consent and marginal review, this framework for church autonomy mirrored arbitration and tied church autonomy not to the adjudicative disability of courts, but to the membership’s implicit decision to have the religious life of their community guided by religious authorities.

Understanding church autonomy in this way has divergent implications. On the one hand, it authorizes courts to review the decisions of religious institutions and authorizes courts to withhold church autonomy where they have determined that religious institutions have employed fraud or collusion. Moreover, it only grants autonomy to religious institutions where the nature of the parties, the relationship between the parties and the substance of the dispute provide sufficient indication that the members impliedly consented to the authority of the religious institution. 

Such proposals would undoubtedly meet with strong resistance from advocates of a robust version of church autonomy.
At the same time, building church autonomy on an arbitration framework also discourages narrow constructions over which individuals are covered by doctrines like the ministerial exception.

Once the surrounding factors justify a finding of implied consent, then the autonomy of the religious institution is far reaching. Whether the member is a minister or a music teacher or a security guard, implied consent to the authority of a religious institution serves to empower the religious institution to make rules and adjudicate disputes that touch upon the religious life of the community. Attempts to differentiate between truly religious parties and those whose role is only of minor religious import are irrelevant once we recognize that the religious institution derives its authority from implied consent; such consent provides institutional autonomy regardless of whether the plaintiff resembles a minister or not.

In this way, understanding church autonomy as a constitutionalized version of arbitration protects institutional autonomy over religious life. Where the institutional rules and decisions are truly the result of religious deliberation – drawing on matters of faith and doctrine – then the church’s autonomy is wide. Where those very same rules and decisions are based upon misconduct – such as fraud or collusion – then there can be no claim to implied consent and therefore no claim to religious autonomy.
Providing wide autonomy to sincere religious decision-making, but withholding autonomy where such decision-making is tainted by fraud or misconduct – this is the legacy of footnote four.

-- the end --

134 See, e.g., Mark E. Chopko & Marissa Parker, Still a Threshold Question: Refining the Ministerial Exception Post-Hosanna-Tabor, 10 FIRST AMEND. L. REV. 233, 291 (2012), at 291.