In litigation, timing is often important. And that was certainly true for religious liberty in a case argued in the Fourth Circuit last week. The case, Zinski v. Liberty University, raises an important question pertaining to constitutional law, employment rights, and religious freedom: Can a religious university terminate a transgender employee that the university says is failing to live up to its religious mission?
An employee of Liberty University (a large Christian university in Virginia) told the school that he was planning to transition from male to female. The university then fired the employee. That prompted the employee to sue in federal court — and the university to defend on the grounds that its termination decision is protected by statutory and constitutional religious liberty provisions.
One important issue raised by this litigation is how federal courts should manage such litigation, which can be lengthy, expensive, and intrusive. At oral argument last week, Judge A. Marvin Quattlebaum Jr. asked if federal courts should treat the church autonomy doctrine as a “threshold” issue that should be resolved before proceeding to the merits in cases implicating matters of church government, faith, and doctrine. We recently wrote an article, forthcoming in the Notre Dame Law Review, that explores this issue. And we think that the answer — as a matter of constitutional mandate and judicial prudence — is yes.
The central legal doctrine here is known as “church autonomy.” The church autonomy doctrine — as the Supreme Court explained in Hosanna-Tabor and Our Lady — protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” In doing so, the church autonomy doctrine protects both of the Constitution’s religion clauses. The free exercise of religion protects the freedom of religious institutions to decide religious institutional matters, and the prohibition on religious establishment prohibits civil governments from interfering in such religious institutional matters.
Those protections for religious institutions and limitations for civil governments have special importance for civil courts. As Judge Andrew Oldham explained in McRaney, the principle that “[c]ivil courts cannot adjudicate ecclesiastical matters” has a “rich historical pedigree stretching well past the Founding.” Early civil courts (like the Supreme Court in Watson) came to explain that over matters “strictly and purely ecclesiastical in [their] character” — over “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of moral required over them” — the civil courts had “no jurisdiction” to second-guess authoritative religious institutional decisionmakers. While “jurisdiction is a word of many meanings,” as Judge Oldham has explained, the upshot is that the church autonomy doctrine provides “structural, constitutional limitations” that safeguard religious institutions against the “very process of inquiry” into matters of church government, faith, and doctrine — offering a “structural, threshold immunity from suit.” We have made a similar point in a series of academic articles: The “church autonomy doctrine protects religious institutions from the very process of judicial review and inquiry.”
These principles of church autonomy doctrine suggest strong arguments why church autonomy issues must be addressed at the threshold. This is essential where proceeding further would require a civil court to exercise judicial review to intervene in matters of church government, faith, and doctrine (including personnel discipline and management decisions).
First, the church autonomy doctrine protects the formal separation of church and state. If a civil court reviews a church management decision on the church side of the line, it violates the formal limitations of the establishment clause on civil courts and the formal protections of the free exercise clause for religious institutions.
Second, the church autonomy doctrine also protects practical, functional values: It avoids chilling religious activities, and it protects effective governance of religious institutions. If a civil court superintends a church management decision by examining its motives, asking what church doctrine really requires, and otherwise supervising a church’s employment decision on the merits, it risks making the federal court (rather than the religious institution) the ultimate boss of the church’s employment disputes.
That does not mean that the church autonomy doctrine prohibits all suits against religious institutions or all forms of judicial inquiry into religious institutions. Perhaps also (as one of us has suggested) church autonomy defenses can be waived — after all, a church may wish to vindicate itself against fraud on the merits. And it may not require the courts to adjudicate on church autonomy grounds literally every time they can. When there are multiple reasons to dismiss a suit at the outset, the court may well have options as to which threshold issue to invoke (deciding on the basis of a statute of limitations is unlikely to mire courts in improper inquiry into religious matters). But in some cases, the court may well need to decide on the basis of church autonomy at the beginning. When the court would otherwise start getting involved in reviewing matters of church government, faith, and doctrine, the court should instead invoke the church autonomy doctrine at the threshold to end the cases before the case brings the court beyond its constitutional authority.
Sometimes courts will have some additional practical alternatives as well that avoid constitutional problems. Courts can use their judicial discretion to structure litigation to avoid or mitigate risks of improper intrusion or inquiry into matters of church government, faith, and doctrine. Judge Julius Richardson made this point several years ago in his Palmer concurrence in the context of the ministerial exception: A civil court “need not say that a court’s inquiry into a minister’s employment is unconstitutional in order to say that it is — as a prudential matter — a bad idea for us to become so entangled.” Judicial review and civil litigation can raise many church autonomy concerns: probing discovery of church communications, intrusive inquiry into church pretext, and chilling monitoring of church activities. In response to such risks, civil courts can structure case management and civil litigation to mitigate the potential mischiefs to church autonomy principles. Sometimes this will take the form of ruling on church autonomy grounds at the beginning of suits, rather than engaging the merits when doing so might involve “questioning the institution’s motives.”
The Zinski panel need not decide that church autonomy must be addressed at the outset to decide that it should be resolved at the threshold. Particularly if adjudicating an employment-discrimination suit — and inquiring into a religious institution’s motives for terminating an employee — risks burdening religious institutional autonomy and entangling the federal judiciary in ecclesiastical matters, there may be good reasons for turning to the church autonomy doctrine before the non-threshold merits issues. Civil courts often have discretion in how they take up issues — and the Zinski panel, as it digs into the record and arguments, has that option on the table. A prudential resolution on the order-of-operations question will, of course, leave other courts free to do what they will in future cases. But it could provide a practical answer to potentially thorny constitutional conundrums.
The church autonomy doctrine issues presented in Zinski require the court to consider if and how judicial power can touch on matters of church government, faith, and doctrine. Zinski provides an important opportunity for the Fourth Circuit to clarify how federal courts from Maryland to South Carolina will move forward — at least until the Supreme Court steps back into the fray.
Branton Nestor is an attorney and a fellow at the Stanford Constitutional Law Center.
Lael Weinberger is a law professor at George Mason University.