Implied Consent to Religious Institutions: A Primer and a Defense

Abstract

One of the recent fault lines over religious liberty is the scope of protections afforded religiously motivated institutions and corporations. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But there remains significant debate over the principles that should guide judicial decisions addressing the circumstances in which religiously motivated institutions should, and in which circumstances they should not, receive the law’s protection.

In this Article, I expound, and defend, my proposed “implied consent” framework for addressing religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree of inherent religiosity, but in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules and resolve disputes related to accomplishing these uniquely religious objectives. In this way, an implied consent framework focuses not on the objective religious quality and nature of religious institutions, but rather on the contextual indications of an implicitly consensual relationship between religious institutions and their members. In turn, an implied consent framework not only supports some of the religious liberty claims advanced by religious institutions, but also establishes important limits on religious institutional authority and autonomy.

Keywords: Religious Liberty, Religious Institutions, Religious Institutionalism, Implied Consent, Voluntarism, First Amendment, Free Exercise Clause, Establishment Clause, Adjudicative Disability