Lael Daniel Weinberger (George Mason University – Antonin Scalia Law School; Stanford Constitutional Law Center) & Branton Nestor (Stanford Constitutional Law Center; Gibson Dunn) have posted Church Autonomy and Interlocutory Appeals on SSRN. Here is the abstract:
The church autonomy doctrine protects the freedom of religious institutions to decide for themselves, free from state interference, matters of church government, faith, and doctrine. While church autonomy is a well-established doctrine, it presents challenging questions that split scholars and divide courts—particularly about how church autonomy interacts with civil procedure. One puzzle that has arisen repeatedly in recent years is when a denial of a church autonomy defense can be appealed. In multiple cases arising in different circuits—involving suits by removed ministers, fired teachers, and disgruntled tithers—a religious institution asserted church autonomy as a defense to a lawsuit at an early stage (motion to dismiss, summary judgment). But in each case, the district court denied the motion, allowing the case to go forward against the church. And so the church sought to make an interlocutory appeal—an appeal before the case is over. Essentially every court of appeals in the last few years to address the question—the Second Circuit, the Seventh Circuit, the Tenth Circuit, the D.C. Circuit—has said that the interlocutory appeal is unavailable. They reason that the church autonomy doctrine does not generally protect against the litigation process itself, and that any harm to church autonomy can be addressed at the end of the litigation through an ordinary appeal.
This Article argues that these courts are wrong. Under the existing law applied by the courts to decide when interlocutory review should be available, church autonomy makes the cut for permitting interlocutory appeal. Existing First Amendment doctrine is best read as protecting religious institutions from judicial review and inquiry into matters of church government, faith, and doctrine reserved to competent church authorities. Judicial control of these matters violates nonestablishment principles and contravene free exercise protections—and it is the very process of judicial review and inquiry, not just the end result, that can violate the Constitution. If church autonomy doctrine isn’t enforced at the front end of the litigation, the error cannot be fixed at the end of the litigation. If this is correct, then two civil procedure measures would be appropriate: First, denials of a church autonomy defense at the outset of litigation should be subject to interlocutory review. Second, courts should use their discretionary tools to manage litigation and to draft amendments to the appellate rules that recognize the ways that church autonomy protections will be affected by litigation.
Church autonomy’s limitations on the exercise of judicial power by civil courts over matters of church government, faith, and doctrine have important implications for civil procedure—including interlocutory appeals. Church autonomy limits the process of judicial review by civil courts over church matters. In particular, it limits the power of civil courts to second-guess religious decisions by religious authorities, and it limits their power to subject those decisions to judicial scrutiny. Because the constitutional harms from such judicial review cannot be undone on the back-end, church autonomy should be subject to interlocutory appeal under current law. In doing so, civil procedure can respect foundational constitutional principles—protecting religious institutions in their appropriate sphere.
Highly recommended.