Is Church Autonomy Jurisdictional?

Abstract

The First Amendment’s religion clauses create what courts have called church autonomy doctrine, protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate. Scholars meanwhile have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This paper engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial jurisdiction. Jurisdiction in the conceptual sense can be a helpful a way of talking about institutional authority relevant to church autonomy. But church autonomy is not properly jurisdictional for purposes of civil procedure. Second, this paper proposes unbundling the array of procedural issues that could be resolved under the label of jurisdiction. This paper argues that it is a mistake to try to use the term jurisdiction to solve the interesting problems. It is better to disaggregate the issues that sometimes come under the label of jurisdiction and instead consider them one at a time. The paper concludes by looking to another quasi-jurisdictional body of law—sovereign immunity—for clues as to how to handle issues such as interlocutory appeals, waiver, and forfeiture in the church autonomy space.

Keywords: Church autonomy, ministerial exception, First Amendment, Free Exercise, Establishment Clause, Civil Procedure, Jurisdiction, Sovereign Immunity