Weinberger on Church Autonomy: A Matter of Jurisdiction?

Our friend Lael Weinberger, who has just finished an Olin-Searle-Smith Fellowship at Harvard Law School and begun a clerkship with Justice Neil Gorsuch, has posted a new draft, Is Church Autonomy Jurisdictional?, on SSRN. The draft, prepared for a symposium last spring at Loyola University Chicago Law School, carefully analyzes the use of the word “jurisdictional” in discussions of church autonomy and shows that the term conveys a number of different meanings, only some of which are apposite. Very much worth reading! Here’s the abstract:

The First Amendment’s religion clauses create what courts have called church autonomy doctrine, protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate. Scholars meanwhile have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This paper engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial jurisdiction. Jurisdiction in the conceptual sense can be a helpful a way of talking about institutional authority relevant to church autonomy. But church autonomy is not properly jurisdictional for purposes of civil procedure. Second, this paper proposes unbundling the array of procedural issues that could be resolved under the label of jurisdiction. This paper argues that it is a mistake to try to use the term jurisdiction to solve the interesting problems. It is better to disaggregate the issues that sometimes come under the label of jurisdiction and instead consider them one at a time. The paper concludes by looking to another quasi-jurisdictional body of law—sovereign immunity—for clues as to how to handle issues such as interlocutory appeals, waiver, and forfeiture in the church autonomy space.

Protagoras and the Purposes of Centers of Knowledge and Inquiry (Lectures by Leo Strauss)

A little bit at a distance from our normal fare, but still within range. The Protagoras is one of Plato’s dialogues, though perhaps not one of the best known. But it is one of my favorites and one that I will introduce into a new course I am teaching this year on “Freedom of Speech and Freedom of Inquiry.” It contains Plato’s views on the relationship between speech and knowledge. And, more broadly, one can read the dialogue as a set of reflections on the nature and function of centers of learning and knowledge (or, as we say in the modern period, universities)–in particular, what the relationship is between knowledge and virtue or human excellence. This new book, Leo Strauss on Plato’s Protagoras (University of Chicago Press, edited and with an introduction by Robert C. Bartlett), is about the well-known 20th century political philosopher’s lectures on Protagoras. It is sure to be full of insight about the Protagoras and its general themes–ones that are pressing and vital today.

This book offers a transcript of Strauss’s seminar on Plato’s Protagoras taught at the University of Chicago in the spring quarter of 1965, edited and introduced by renowned scholar Robert C. Bartlett. These lectures have several important features. Unlike his published writings, they are less dense and more conversational.  Additionally, while Strauss regarded himself as a Platonist and published some work on Plato, he published little on individual dialogues. In these lectures Strauss treats many of the great Platonic and Straussian themes: the difference between the Socratic political science or art and the Sophistic political science or art of Protagoras; the character and teachability of virtue, its relation to knowledge, and the relations among the virtues, courage, justice, moderation, and wisdom; the good and the pleasant; frankness and concealment; the role of myth; and the relation between freedom of thought and freedom of speech.
In these lectures, Strauss examines Protagoras and the sophists, providing a detailed discussion of Protagoras as it relates to Plato’s other dialogues and the work of modern thinkers. This book should be of special interest to students both of Plato and of Strauss.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In United States v. City of Lansing, Michigan, the Justice Department filed a Title VII lawsuit on behalf of a newly-hired Seventh Day Adventist detention officer. The complaint alleges that the city “failed to provide [the officer] with a reasonable accommodation or to show undue hardship and terminated her employment because she could not work from Friday sundown through Saturday sundown due to her religious observance of the Sabbath.” 
  • In Stewart v. City and County of San Francisco, California, a California federal district court issued a preliminary injunction barring enforcement of a San Francisco Park Code provision requiring a permit for any religious event held in a public park involving 50 or more persons. 
  • A former Southwest flight attendant has been awarded damages after being fired from the airline for publicly posting anti-abortion posts. The federal jury in Texas sided with the former flight attendant, stating that Southwest unlawfully discriminated against her because of her sincerely held religious beliefs. 
  • In In re Texas Conference of Seventh-Day Adventists, a Texas state appellate court held that the ecclesiastical abstention doctrine deprives the trial court of jurisdiction over a dispute between the Fort Worth Northwest Seventh-Day Adventist Church and the Conference, its hierarchical parent body. At issue was control over the Church’s funds and property. 
  • More than 100 churches are suing the Florida Annual Conference of the United Methodist Church to immediately disaffiliate from the denomination. The lawsuit comes amid a slow-moving schism in the United Methodist Church – largely over the ordination and marriage of its LGBTQ members. 
  • A 76-year-old English grandmother who was fined for praying near an abortion clinic has successfully overturned her financial penalty. The fine was issued during the country’s lockdown in February 2021 after a policeman questioned why she was outdoors. The Merseyside Police have now conceded that Plaintiff should not have been detained since she was firmly within her rights to silently pray while walking outside and that her actions were reasonable and acceptable under COVID-19 regulations.