25 Pages Posted: 7 Feb 2017
Date Written: February 2, 2017
In a society that is increasingly polarized on the basis of religion and politics, there is perhaps no greater manifestation of that polarization than the claim to a realm entirely separate from, and independent of, the sovereignty of the civil state. Claims of religious institutions seeking autonomy with respect to their internal affairs sometimes include such sovereignty claims. Though institutional autonomy for religious organizations may be intended as a way of protecting civil rights, it also entails difficulties that are not easily resolved — not least among them their natural and nearly inevitable tendency to expand. This Essay considers the ever-expanding nature of religious sovereignty claims, tracing a trajectory of increasing breadth through a series of recent Supreme Court opinions. It also attempts to identify some causes of this expansion, arguing that the nature of religious sovereignty itself makes delimitation of such autonomy claims difficult or impossible. It ends by calling for alternate approach, in which the rhetoric of sovereignty and “freedom of the church” is abandoned altogether and which specifies carefully those issues that the courts may and may not decide when religious institutions are involved.
Keywords: Religious Sovereignty, First Amendment, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, Burwell v. Hobby Lobby Stores, Zubik v. Burwell, Ministerial Exception, Ecclesiastical Abstention, Free Exercise Clause, Establishment Clause
JEL Classification: K19
Suggested Citation: Suggested Citation
Hill, B. Jessie, Kingdom Without End? The Inevitable Expansion of Religious Sovereignty Claims (February 2, 2017). Lewis & Clark Law Review, Vol. 20, 2017; Case Legal Studies Research Paper No. 2017-3. Available at SSRN: https://ssrn.com/abstract=2910552