Candice Mason Kulbeth has posted Church Autonomy: A Universal Sequencing Question on SSRN. Here is the abstract:
This Article identifies a national “sequencing collapse” in church‑autonomy jurisprudence: lower courts increasingly treat the mere presence of religious vocabulary as a threshold bar to adjudication, rather than a merits‑stage defense. The result is a constitutional black hole where secular conduct—fraud, fiduciary breaches, torts—evades civil accountability.
Three cases, now before the Supreme Court, illustrate the circuit split and need for Supreme Court resolution. Gaddy v. The Church of Jesus Christ of Latter-day Saints (Tenth Circuit) bars courts from determining even empirically verifiable facts once belief is invoked. Family Federation for World Peace and Unification International v. Moon (D.C. Court of Appeals) treats hierarchy disputes as categorically ecclesiastical, enabling internal usurpation. McRaney v. The North American Mission Board of the Southern Baptist Convention, Incorporated (Fifth Circuit) extends autonomy as immunity even against non‑members. By contrast, the Ninth Circuit’s en banc decision in Huntsman v. The Church of Jesus Christ of Latter-Day Saints demonstrates that neutral‑principles fact‑finding is both possible and constitutionally required.
This Article examines the church autonomy cases before the Court as vehicles to answer the foundational question: must courts determine what happened before deciding whether they may not? It proposes a Neutral Translation Protocol–outlining a merits‑first sequencing rule–necessary to preserve both religious liberty and the judiciary’s constitutional duty to provide a forum for secular claims.