Michael A. Helfand (Pepperdine University School of Law) has posted a very interesting article, Litigating Religion.  In an earlier liveblogging post, Professor DeGirolami discussed Professor Helfand’s talk drawn from the paper at the Religious Legal Theory Conference.  The abstract of the article follows.

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating religion.

Considering what options parties have when litigating religion highlights a gap in the current framework. In a growing number of cases, plaintiffs seek to resolve claims that turn on religious questions where no religious institution – neither religious arbitration tribunals, nor religious courts – is empowered to adjudicate the case. As a result, prohibiting courts from litigating religion creates an adjudicative vacuum where individuals are unable to secure justice. Indeed, the article contends that this adjudicative vacuum is based on a mistaken shift in the Supreme Court’s First Amendment jurisprudence, which erroneously interprets the religion clauses to prohibit courts from resolving religious questions; instead, the religion clauses should be interpreted to require courts to defer to other religious institutions. However, where no other religious institutions wait in the wings to resolve religious disputes – both as a matter of constitutional doctrine and sound policy – courts should play a more active role in litigating religion.