'Omalous' Autonomy

58 Pages Posted: 22 Nov 2006 Last revised: 17 May 2010

See all articles by Perry Dane

Perry Dane

Rutgers, The State University of New Jersey - Rutgers Law School


The Supreme Court held in Employment Division v. Smith that, in most cases, religious beliefs create no special constitutional right to an exemption from "neutral, generally applicable" laws. Smith represents, according to some commentators, part of a larger move in the Court's religion cases away from acknowledging the specialness of religion and towards emphasizing an overarching norm of neutrality. But still sitting in a corner of religion and law jurisprudence are various doctrines, coming under the general rubric of religious institutional autonomy, by which American religious communities do remain distinctively insulated from the full reach of the neutral, generally applicable laws to which comparable nonreligious institutions are subject. This Article tries to make sense of why, how, and to what extent religious institutional autonomy survives Smith and the apparent pull of "neutrality." The Article's first major part argues that Smith, correctly understood, had less to do with neutrality than with a specific jurisprudential argument that the Court's previous doctrine of religion-based exemptions was an "anomaly" in constitutional law. Whatever one thinks of this conclusion in Smith, the Article demonstrates how it simply does not apply to religious institutional autonomy. Institutional autonomy is in this sense "omalous" rather than "anomalous." The Article goes on to discusses some developments within institutional autonomy doctrine itself, and then to navigate the boundary between autonomy and free exercise in the specific context of church liability for clergy sexual abuse. This last section demonstrates, as has some of my prior work, the importance of looking, not only to constitutional doctrine, but also to the nitty-gritty of how the rest of law - here tort law - tries to make sense of religion. The Article concludes, with self-conscious irony, by emphasizing the importance of generality and neutrality, though in a different sense from that employed in Smith.

Keywords: religion, law, autonomy, torts, Smith v Employment Division, religious institutional autonomy, Jones v Wolf, free exercise of religion, neutrality

JEL Classification: K10, K13, K19, K30, K39, K40, K42, K49

Suggested Citation

Dane, Perry, 'Omalous' Autonomy. Brigham Young University Law Review, Vol. 2004, p. 1715, 2004, Available at SSRN: https://ssrn.com/abstract=946475

Perry Dane (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Camden, NJ
United States
856-225-6004 (Phone)
856-225-6004 (Fax)

HOME PAGE: http://law.rutgers.edu/directory/view/dane

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