GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Forthcoming

Abstract

With increasing frequency and intensity, courts and commentators have advanced a doctrine of church autonomy that shields matters of internal church affairs from judicial scrutiny. Judges and scholars have invoked the doctrine in cases that involve disputes over property, employment, and governance of religious institutions. When applied, the doctrine ordinarily requires the dismissal of suits by aggrieved employees, congregants, or affiliated religious entities, thereby leaving employment and property disputes to unreviewable resolution by church authorities.

The turn to church autonomy is a regrettable mistake that contributes to the unjustifiable expansion of free exercise protections for religion at the expense of norms of equal treatment and non-establishment. In this article, we demonstrate how precedent, history, and theory cannot justify a church autonomy doctrine.

This does not mean, however, that civil courts can intervene at will in disputes involving religious organizations. Quite to the contrary, we demonstrate that American courts have long (and properly) followed a doctrine of ecclesiastical abstention, under which courts lack competence and authority to resolve specifically religious questions.

In some cases, the ecclesiastical abstention doctrine will lead to the same result as the church autonomy doctrine, such as when a minister whose sermons deviated from her faith’s orthodoxy sues for wrongful termination and reinstatement. But the two approaches are meaningfully different. The ecclesiastical abstention doctrine is not implicated by the mere fact that at least one of the parties to a dispute is a religious organization or employee. Instead, application of the doctrine turns on the character of the question that must be decided. For example, its application likely would produce a very different outcome than the church autonomy approach in a racial discrimination suit filed by a janitor who was fired by a church that requires all of its employees to “comport themselves according to Christ’s example.” Focusing on the religious nature of the question at issue, rather than the religious identity of the parties, respects carefully drawn limits on the adjudicative competence of civil courts while ensuring that religious organizations do not operate in a wholly law-free zone.

The turn to church autonomy contributes to the already worrisome subordination of non establishment values to a widening domain of free exercise rights. In the last decade, the Supreme Court’s decisions have bloated free exercise doctrine while emaciating the Establishment Clause. Church autonomy doctrine similarly promotes free exercise interests in ways that create unjustifiable disparities between religious organizations and others, while it ignores the significant non-establishment principles necessary to preserve an appropriate relationship between religious organizations and the state.

GW Paper Series

2026-52

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