The “religious question” doctrine is a well-known and commonly accepted notion about the First Amendment’s Religion Clauses. The general idea is that, in our system of separated church and state, courts do not decide religious questions. And from this premise, many things flow — including the idea that courts must dismiss otherwise justiciable controversies when they would require courts to resolve religious questions. Yet a vexing thought arises. The religious-question doctrine traditionally comes out of a notion that secular courts cannot resolve metaphysical or theological issues. But when one looks at the cases that courts have been dismissing pursuant to the religious-question doctrine, none of them involve questions of a metaphysical or theological nature. Cases sometimes require decisions about what particular individuals or religious communities happened to believe, how they acted, or what motivated their actions. But those are temporal and ultimately empirical questions, which courts can investigate like they investigate everything else. So when some claim that the doctrine is necessary to keep the government out of theological issues or to maintain the government’s religious neutrality, they seem to go wrong. And when this thread gets pulled, the religious-questions doctrine just seems to unravel. This short symposium piece leaves much unanswered, but it suggests that a reconceptualization of the religious-question doctrine might be in order. If the religious-question doctrine is not primarily about the government’s inability to decide theological or metaphysical questions, what is it about? This piece tentatively suggests an answer: It is about religious liberty. Courts stay out of religious questions when they believe religious liberty is best advanced by courts staying out of religious questions. And courts get involved in religious questions when they believe religious liberty is best advanced by courts getting involved in religious questions. At bottom, the religious-question doctrine has more to do with religious liberty than religious questions.
Christopher C. Lund
Rethinking the “Religious-Question” Doctrine,
41 Pepp. L. Rev.
Available at: http://digitalcommons.pepperdine.edu/plr/vol41/iss5/8