Supreme Court Emergency Docket Asked to Protect Right to Use Religious Courts

The use of religious tribunals to settle disputes that might otherwise be heard in civil courts has long been a fault line in systems of civil law. The very structure of Anglo-American law presumes a sometimes-abstruse division between the spheres of law and equity that has roots in medieval England, where the chancery courts (while ruling in the king’s name) were often de facto religious tribunals. In more modern times, when the government’s courts are civil, we see instead controversies arise when litigants want to use the religious courts — or feel compelled by their religious communities to do so.

The federal government nearly went to war with the Latter-day Saints in 1857–58 (in fact, it was an undeclared war in which direct combat was only narrowly averted and there were deaths and the theft and destruction of property on both sides), and one of the major causes was Utah territorial governor and Mormon religious leader Brigham Young routing nearly all civil disputes to religious courts, undermining the authority of the federal courts even over matters such as title to land.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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The use of religious tribunals to settle disputes that might otherwise be heard in civil courts has long been a fault line in systems of civil law. The very structure of Anglo-American law presumes a sometimes-abstruse division between the spheres of law and equity that has roots in medieval England, where the chancery courts (while ruling in the king’s name) were often de facto religious tribunals. In more modern times, when the government’s courts are civil, we see instead controversies arise when litigants want to use the religious courts — or feel compelled by their religious communities to do so.

The federal government nearly went to war with the Latter-day Saints in 1857–58 (in fact, it was an undeclared war in which direct combat was only narrowly averted and there were deaths and the theft and destruction of property on both sides), and one of the major causes was Utah territorial governor and Mormon religious leader Brigham Young routing nearly all civil disputes to religious courts, undermining the authority of the federal courts even over matters such as title to land.