GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Accepted

Abstract

Courts have increasingly applied a doctrine of church autonomy to resolve claims involving religious organizations. A recent decision of the Ninth Circuit invoked the doctrine to permit religious employers to favor co-religionists in hiring, even for non-ministerial positions. Professor Carl Esbeck has written a thoughtful critique of the court’s decision. This essay responds to Esbeck and, more broadly, provides a criticism of church autonomy doctrine and a roadmap for decision when the Ninth Circuit’s opinion is reviewed en banc. In our view, courts should apply a doctrine of ecclesiastical abstention, which prevents them from resolving specifically religious questions. But we do not think that the Religion Clauses are properly read to confer broad decision-making immunity on religious organizations even when resolution of claims would not require adjudication of any religious question.

GW Paper Series

2026-57

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