The Religious-Question Doctrine: Free-Exercise Right or Anti-Establishment Immunity?

18 Pages Posted: 15 Mar 2016

See all articles by Frederick Mark Gedicks

Frederick Mark Gedicks

Brigham Young University - J. Reuben Clark Law School

Date Written: March 2016

Abstract

This Essay argues that the source of judicial inconsistency in applying the U.S. religious-question doctrine is confusion about whether the doctrine protects a free-exercise right held by religious individuals and groups against government interference, or is instead an anti-establishment immunity stemming from a structural disability on government (and especially judicial) action with respect to questions of religious belief and practice. Part 1 sketches the religious-question doctrine as it emerged from the U.S. Supreme Court’s church property and office cases. Part 2 explains that ‘rights’ and ‘structure’ are distinct jurisprudential concepts whose application yields differing results. Part 3 argues that attending to these differences yields important explanatory insights about the religious-question doctrine, using as brief illustrations the clergy child-abuse cases in the United States, and the treatment of church “autonomy” by the European Court of Human Rights.

Keywords: Disability, duty, free exercise rights, anti-establishment immunity, religious question doctrine, rights, structure

Suggested Citation

Gedicks, Frederick Mark, The Religious-Question Doctrine: Free-Exercise Right or Anti-Establishment Immunity? (March 2016). Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/10, BYU Law Research Paper No. 16-12, Available at SSRN: https://ssrn.com/abstract=2746593 or http://dx.doi.org/10.2139/ssrn.2746593

Frederick Mark Gedicks (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

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