When Judges are Theologians: Adjudicating Religious Questions

Abstract

In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions, the reality is far more complicated. Indeed, the justifications for the religious question doctrine are quite different when considered in the context of private law cases—such as cases involving the interpretation of religious terminology in commercial instruments—and public law cases—where courts are asked to apply the state’s regulatory infrastructure in circumstances that invariably require some sort of interrogation of religious doctrine or practice.

In each sphere, the consequences of applying the religious question doctrine look different and may therefore encourage different strategies and outcomes. When judges dismiss private law cases that implicate theological questions, they often leave aggrieved parties without a remedy for legal wrongs that can have significant consequences, either financial or otherwise. When judges dismiss public law cases that implicate theological questions, they often limit the law’s reach and leave some spheres of the human condition beyond the scope of legitimate government regulation.

These consequences highlight the need for U.S. courts to reconsider the contours of the constitutional limitations on their authority to engage matters of theology. In the discussion below, I identify why a number of jurisprudential approaches may provide courts with more flexibility in the private law context. This disparity derives from fundamental disagreements over the origins of and animating principles behind the religious question doctrine, disparities which I argue courts should take seriously so as to avoid too-freely renouncing their central duty of resolving disputes submitted on the courthouse doorstep.

Keywords: Religious Question Doctrine, Law and Religion, Private Law, Public Law, Kosher Laws, Hebrew National, Establishment Clause, Religious Freedom Restoration Act, RFRA, Affordable Care Act, Contraception Mandate, Burwell v. Hobby Lobby, Zubik v. Burwell, Contextualism, Heter Iska Agreements