GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2009

Status

Accepted

Abstract

For nearly forty years, the courts have barred a variety of lawsuits by clergy against their religious entity-employers. These suits frequently involve matters of civil rights, such as sex-based discrimination in employment, but they also involve claims of defamation, violation of fair labor standards, and breach of employment contracts, among others. To justify the barriers to these suits, courts typically rely on concepts drawn from the First Amendment's Religion Clauses. In particular, courts frequently invoke theories of free exercise of religion by religious institutions, or notions of "excessive entanglement" between church and state, to justify this line of case law. Although cases of this character are frequent and geographically widespread, the Supreme Court has not taken up these issues for many years. As a result, large questions loom with respect to whether the Court's more recent decisions - for example, Employment Division v. Smith - support the existing barriers to these lawsuits.

The existing theories offered to explain this line of cases are inadequate. This paper critiques those theories, and advances a new and comprehensive concept of "adjudicative disability" to explain precisely when courts should refrain from deciding certain questions. This approach, which centers on the appropriateness of judicial resolution of questions rather than on the character of the parties or the label associated with the cause of action, is both normatively superior to and capable of more principled application than its rivals. The paper demonstrates the advantages of the theory of "adjudicative disability" by applying it to a series of hypothetical cases across a range of difficulty.

GW Paper Series

GWU Legal Studies Research Paper No. 444

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