A Hands-Off Approach to Religious Doctrine: What Are We Talking About?

29 Pages Posted: 6 Oct 2013  

Richard W. Garnett

Notre Dame Law School

Date Written: October 4, 2009

Abstract

At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”

This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal churches in Virginia, on the one hand, and the Episcopal Diocese of Virginia, on the other; by the Supreme Court of Canada’s recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; by a federal judge’s ruling that the Georgia Institute of Technology had unconstitutionally taken on the task of instructing students about the merits of various traditions’ positions on sexual morality; and perhaps even by the Speaker of the House’s controversial pronouncements, on “Meet the Press,” about Roman Catholic teaching with respect to abortion. In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving the meaning or content of religious teaching.

But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an “increasing unwillingness,” and that they are doing so in accord with any identifiable principle or “approach”? If there is, in the Court’s law-and-religion toolkit, something like a hands-off “rule,” then what are that rule’s scope, content, and justifications? Which feared harms does it protect against, and which goods does it promote? When it comes to “matters that relate to the interpretation of religious practice and belief,” why is the Court doing, and should it be doing, what it is doing?

Keywords: Establishment Clause, Religious Freedom, First Amendment, Religious Questions, Free Exercise, Freedom of the Church

Suggested Citation

Garnett, Richard W., A Hands-Off Approach to Religious Doctrine: What Are We Talking About? (October 4, 2009). Notre Dame Law Review, Vol. 84, No. 2, 2009; Notre Dame Legal Studies Paper No. 1452. Available at SSRN: https://ssrn.com/abstract=2336269

Richard W. Garnett (Contact Author)

Notre Dame Law School ( email )

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P.O. Box 780
Notre Dame, IN 46556-0780
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