Skip to main content
Religious Freedom Toolkit

Part III | Expanded Analysis

Category F | Doctrines

Topic 33 | Institutional autonomy

The concept of religious (sometimes called “church”) autonomy refers to the institutional dimensions of religious freedom. While we often think of religious freedom as an individual right (and it is), there are also important institutional aspects of freedom of religion as well. In the United States, church autonomy is based on both non-establishment and free exercise principles. Since autonomy encompasses values of equality as well as freedom, it is also grounded in the concept of nondiscrimination.876

Introduction  

“Church autonomy,” put simply, refers to religious organizations’ right to be free from state interference. It encompasses the institutional dimensions of religious freedom. At its most basic level, “[t]he church autonomy doctrine provides that religious communities should have autonomy, or independence, from the government in the formulation of their beliefs and faith, their organizational structure, and ‘the whole range of policies and practices that the organization adopts to conduct, or structure, its operations.’”877 Though conceptually simple, this idea becomes quite complex in practice.

Theoretical background  

The First Amendment to the U.S. Constitution does not expressly guarantee autonomy to religious organizations.878 Its only direct constitutional protections for religion are that “Congress shall make no law respecting an establishment of religion” (the Establishment Clause) “or prohibiting the free exercise thereof” (the Free Exercise Clause).879 Some scholars have argued that church autonomy stems from the Establishment Clause and others from the Free Exercise Clause.880 Other authorities (including the U.S. Supreme Court, in some opinions) have suggested that it follows from both together or the First Amendment more generally.881 Law and religion scholars have noted that,

"[h]istorically, it might be more accurate to [state] that both free exercise and establishment were conceptualized as limitations on congressional power rather than as rights. When the First Amendment said, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” it was depriving Congress of power with respect to both dimensions of the Religion Clauses. It places matters that are “inherently religious” outside the jurisdiction of the state. Since issues traditionally protected by religious autonomy are all inherently religious, they fall outside state competence."882

However one argues it does its work, the First Amendment is considered the basis of protection for religious organizations’ autonomy and freedom from state interference.

This freedom from interference can differ in form and scope, and again, scholars and courts have not always agreed on appropriate forms and limits. Two common schools of thought developed in U.S. cases and scholarship are separation and accommodation.883 The concept of separation is that church and state should be left (and more actively kept, when necessary) completely separate or independent of each other.884 In contrast, accommodation is based on what law professor Brett G. Scharffs calls “inter-independence,” a kind of independence that “also requires inclusion, and rests upon respect and empowerment.”885 Both of these concepts emerge as courts grapple with challenges surrounding church autonomy.

Religious organizations  

When discussing the autonomy of religious organizations, one task is to define what a religious organization is. While there are myriad definitions and types, autonomy issues effect three main types of religious organizations.

First, religious people commonly organize themselves into what are broadly termed “churches,” that is, bodies of individuals who share a belief set. Church organizational structures fall into two general categories: hierarchical and congregational.886 “Hierarchical churches are ‘those organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head.’”887 Congregational churches are local churches that are not subject to any outside authority.888 Some religious organizations do not fit neatly into these categories, but courts have employed these categories to decide if and/or how to handle disputes that arise within churches.889

Second, religious organizations often adopt a legal entity. Doing so allows them to function in society and fulfill their perceived missions. In the United States, religious organizations most commonly gain legal entity status as religious nonprofit corporations, unincorporated associations, or nonprofit corporations; other less commonly used legal structures include the charitable/religious trust, corporation sole, and for-profit corporation.890 Laws effecting the legal functioning of religious organizations, and thus their autonomy, can vary by state/jurisdiction.

Third, many religious organizations form “religiously affiliated organizations” that “conduct activities in support of their religious missions . . . separate and apart from what might be considered strictly religious worship.”891 These affiliated organizations may include schools, hospitals, humanitarian agencies, publishing houses, and more. Whether operated on a nonprofit or for-profit basis, such organizations and their activities can create complicated tax, liability, and other legal issues that affect church autonomy.892

Autonomy-related issues  

Church autonomy issues arise in various areas in which religious organizations conduct their activities. Discussed below are four common areas: (1) property, (2) employment and membership, (3) religious doctrine, and (4) taxation.

  • Property disputes

In property disputes between members of religious organizations, U.S. courts have taken various approaches. In the earliest church-property case, Terrett v. Tayor (1815), the state of Virginia rescinded a church’s corporate charter and required the church to sell its vacant land.893 The U.S. Supreme Court employed nondiscrimination principles of “equal treatment” in holding that “[r]eligious groups, like all other legal associations, must be allowed to retain a corporate charter once lawfully given and use their properties in any lawful manner they deem apt, without undue interference by the state.”894 The rationale for this and other early cases was that religious groups have a constitutional right “to manage their own internal affairs regarding property, provided there is actual consent by the members.”895

In the first Supreme Court case involving an intrachurch property dispute, Watson v. Jones (1872), the Court established a doctrine of “deference” to hierarchical religious organizations.896 The basic idea is that when churches are hierarchical in their organization, courts adhere to decisions of the church’s highest authority, to avoid meddling in ecclesiastical affairs.897

A more recent approach focuses on what courts have called “neutral principles”898:

"Under the neutral principles approach, courts may apply “neutral principles of law”—i.e., routine principles of judicial interpretation of legal documents—in resolving religious disputes, insofar as they do not reach questions of doctrine or church governance. This approach is only possible in cases that involve secular legal instruments, such as real estate deeds or trusts in property, or in cases that invoke well-established principles of secular law, such as contract or tort, which a secular court can interpret without becoming entangled in religious matters."899

The Supreme Court has cautioned that if interpreting legal documents “would require the civil court to resolve a religious controversy,” then the court should practice deference to church authority in property disputes.900

Courts are not constitutionally required to take a certain approach to resolving church property disputes, and different jurisdictions lean toward deference or neutral principles, or sometimes a hybrid.901

  • Employment and membership  

Determining the scope of churches’ rights to decide criteria for their ministers, members, and employees has clear discrimination implications. The main question that arises is whether churches should be allowed autonomy in such decisions if they may discriminate against people based on traits protected in antidiscrimination legislation, such as the U.S. Civil Rights Act of 1964.902 In hiring decisions, religious organizations are broadly exempt from discrimination claims under the “ministerial exception,”903 as summarized below:

"Religious organizations have broad discretion to engage in preferential hiring of their own members and to take considerations of religious belief into account in employment decisions. Religious organizations are granted this broad discretion because the right to religious autonomy assures that religious organizations are free to structure and administer their affairs in ways that accord with their doctrine and sense of religious mission. However, the ministerial exception does not provide complete immunity from judicial oversight where a position is not actually ministerial in character."904

In many cases, courts willingly defer to religious organizations’ decisions on whom to hire, even if the position is not clearly “ministerial,” demonstrating reluctance to entangle the courts in ecclesiastical-adjacent matters.905 Some courts have taken more of a neutral-principles approach, especially in cases concerning lay employees.906 Membership decisions are generally given a high degree of deference with only a few exceptions for “malice or deviation from the church constitutions.”907

  • Church doctrine  

Courts generally decline to interpret the doctrine, policy, and canon law of religious organizations.908 At times, however, courts have undertaken to interpret religious doctrine, policy, or law in decisions involving neutral principles.909 “For example, courts deciding cases involving the negligent supervision of a pastor guilty of sexual abuse will venture to interpret the church’s discipline in respect to its right to control and supervise.”910 Even so, “[a]ny liability imposed on a religious organization must be based on secular civil law and facts, not on an attempt by a civil court to give civil effect to religious doctrine or discipline.”911

  • Taxation  

In the United States, religious organizations that qualify as “churches” and meet certain requirements are automatically deemed tax-exempt, for federal taxation purposes.912 The federal Internal Revenue Service (IRS) notes that it “makes no attempt to evaluate the content of whatever doctrine a particular organization claims is religious” but requires only that “the particular beliefs of the organization are truly sincerely held by those professing them and the practices and rites associated with the organization’s belief or creed are not illegal or contrary to clearly defined public policy.”913 Each U.S. state has its own laws regarding the taxation of religious institutions.914

Case law provides strong support for tax-exempt status for religious institutions, but such status is “neither constitutionally mandated by the free exercise clause nor constitutionally forbidden by the establishment clause.”915 For example, the U.S. Supreme Court upheld the IRS’s decision to revoke tax-exempt status from two religious schools because their racially discriminatory policies violated “fundamental national public policy.”916 This decision was not considered a denial of a right, as tax-exempt status has developed as more of a legislative privilege granted to religious institutions.

Conclusion: Why is church autonomy important?  

The right to church autonomy is not explicitly contained in the U.S. Constitution, nor is it explicitly enumerated in international human rights documents,917 so why is it so important? Law professors John Witte, Jr., and Joel A. Nichols describe its significance as follows:

"A religious organization is more than a mere aggregation of individuals and their free exercise rights. For many religious adherents, religion has important communal components, too. . . .
. . . .
First Amendment freedoms of religion are comparably institutional. They do not always involve claims by an individual against a government imposition . . . . They also involve churches that seek to keep their property from a dissident faction, religious schools that seek to hire like-minded believers and fire those who fall aside, voluntary religious student groups that wish to share facilities and funds on an equal basis with nonreligious groups, non-profit social service organizations that seek to serve vulnerable members of society while holding true to their core beliefs, and even for-profit organizations and entities that seek to participate in the economic marketplace without sacrificing their convictions. Recognizing that religious liberty extends collectively, to groups and “institutions,” is an important part of the American heritage of religious freedom."918

If we are to have meaningful religious freedom, individuals must be able to unite with others of similar beliefs to fully practice their beliefs, govern themselves, and engage in faith-based activities according to conscience, without undue state interference. Though conceptions and approaches may vary, this right must be protected. The alternative is a sphere where freedom of belief is private only—where believers would be unable to accomplish what they can as a group and would be more vulnerable to political and other social pressures. Thus, the right to church autonomy is a key right in a pluralistic society committed to diversity of thought and belief.

Previous - Topic 33 Outline
Next - Topic 33 Quotes

References

876. Toolkit Topic 33 (Institutional autonomy) was originally drafted by Jennifer Trogden, 2023 ICLRS Summer Fellow.

877. W. COLE DURHAM JR., WILLIAM W. BASSETT, MARK A. GOLDFEDER & ROBERT T. SMITH, RELIGIOUS ORGANIZATIONS AND THE LAW § 5.1 (Defining Church Autonomy) Westlaw RELORGS (updated Dec. 2023) (quoting ROBERT BAIRD, RELIGION IN AMERICA: A CRITICAL ABRIDGEMENT xiii (Henry Warden Bowen ed., 1970) (1856)).

878. U.S. CONSTITUTION amend. I.

879. DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 5.3 (Free Exercise and Establishment Clause Roots of Church Autonomy).

880. Id. n.4 (“For articles that view religious autonomy as fundamentally a matter of free exercise, see ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION 1035 n.113 (1987); Douglas Laycock, Towards a General Theory of the Religion Clauses. The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUMBIA LAW REVIEW 1373 (1981). For examples of those that perceive it as an Establishment Clause matter, see Carl H. Esbeck, The Establishment Clause as a Structural Restrain on Government Power, 84 IOWA LAW REVIEW 1, 44–51 (1998); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 14–11, 1231–42 (1st ed. 1978).”).

881. Id. (citing, for example, Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 877 (1990)).

882. Id.

883. See generally Brett G. Scharffs, The Autonomy of Church and State, 2004 BYU LAW REVIEW 1217 (2004), https://digitalcommons.law.byu.edu/lawreview/vol2004/iss4/3.

884. See id. at 1220; Thomas Jefferson, V. to the Danbury Baptist Association, 1 January 1802, FOUNDERS ONLINE: NATIONAL ARCHIVES, https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006 (last visited Dec. 2024) (describing the U.S. Constitution’s Establishment Clause as “building a wall of separation between Church & State”).

885. Scharffs, supra, at 1220.

886. JOHN WITTE, JR. & JOEL A. NICHOLS, RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 224 (4th ed. 2016).

887. Id. (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 110 (1952)).

888. Id.

889. See, e.g., Kedroff, 344 U.S. at 94.

890. ELIZABETH A. CLARK, BRETT G. SCHARFFS & AMY LYNN ANDRUS, RELIGION AND LAW IN THE UNITED STATES 110–11 (2024).

891. DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 8.27 (Introduction to Religiously Affiliated Organizations).

892. See, e.g., Bob Jones University v. United States, 461 U.S. 574, 593–96 (1983) (upholding an IRS decision to revoke the tax-exempt status of two religious educational institutions because their racially discriminatory policies violated “fundamental national public policy”).

893. Terrett v. Taylor, 13 U.S. (9 Cranch) 43 (1815).

894. WITTE & NICHOLS, supra, at 226.

895. Id. at 228.

896. Watson v. Jones, 80 U.S. (13 Wall.) 679, 727 (1871).

897. Id.

898. See e.g., Jones v. Wolf, 443 U.S. 595 (1979).

899. DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 5.15 (Balancing Watson’s Deference and Jones’s Neutrality).

900. Wolf, 443 U.S. at 604.

901. DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 5.18 (Church Property Disputes).

902. See 42 U.S.C. § 2000e-2 (2024) (prohibiting employment discrimination based on race, color, religion, sex, or national origin).

903. DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 5.22 (Overview of the Ministerial Exception); see also Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. 732, 751–54 (2020) (explaining the scope of the ministerial exception in holding that two parochial school teachers’ employment-discrimination claims were foreclosed by the ministerial exception).

904. Id.; see, e.g., Trotter v. United Lutheran Seminary, No. CV 20-570, 2021 WL 3271233, at *1 (E.D. Pa. July 30, 2021).

905. DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 5.23 (The Rule of Deference and the Selection of Employees); see, e.g., Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) (upholding Section 702 of the Civil Rights Act of 1964, under the Lemon test, and holding that Section 702 allows religious employers to discriminate based on religion in employment decisions relative to nonreligious positions). 906 DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 5.23.

907. Id. § 5.24 (The Rule of Deference and the Selection of Members).

908. Id. § 5.25 (Civil Interpretation of Religious (Canon) Law), § 5.26 (Enforcing a Church’s Internal Discipline), § 5.27 (Enforcing Religious Law).

909. DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 5.26.

910. Id.

911. Id.

912. Internal Revenue Service, Pub. No. 1828, Tax Guide for Churches & Religious Organizations 3, https://www.irs.gov/pub/irs-pdf/p1828.pdf (last visited Dec. 2024).

913. Id. at 33.

914. For a summary of U.S. states’ treatment of income tax exemptions for religious organizations, see DURHAM, BASSETT, GOLDFEDER & SMITH, supra, § 32.50 (Chart: State Income Tax Benefits).

915. WITTE & NICHOLS, supra, at 201.

916. Bob Jones University v. United States, 461 U.S. 574, 593–96 (1983).

917. But see, e.g., G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, at art. 6 (Nov. 25, 1981), https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-all-forms-intolerance-and-discrimination (listing protected activities relative to the “right to freedom of thought, conscience, religion, or belief,” including organizational freedoms, such as freedom to “establish and maintain appropriate charitable or humanitarian institutions).

918. WITTE & NICHOLS, supra, at 222, 247.