Church Autonomy as a Framework for Conditions on Government Benefits

<p><span>Over the course of five years, the Supreme Court decided three cases concerning the ability of religious institutions to access government funding. The Court’s most recent decision, <i>Carson v. Makin</i>, made it crystal clear that the Free Exercise Clause forbids the government from directly barring an otherwise qualified religious institution from receiving government benefits solely because of its religious identity or its religious exercise. Since <i>Carson </i>was decided, however, lower courts have split over whether the Free Exercise also forecloses situations where the government indirectly bars religious institutions from accessing government benefits by imposing conditions on the receipt of benefits that would require some religious institutions to give up some part of their religious exercise in order to be eligible.</span></p> <p><span>While I argue that </span><span><i>Carson </i></span><span>should apply to such situations, the problems with indirect bars on religious participation in government programs go beyond the Free Exercise Clause alone. When the government imposes an indirect bar on religious participation, it is seeking to change some fundamental aspect of the religious institution that it finds objectionable—religious practices or doctrine that cannot be squared with the government’s policy goals. The government uses the denial of benefits as a way to influence the religious institution’s theological decisions. This practice implicates more than simply the exercise of religion; it implicates the very mission of the religious institution itself because it pressures the religious institution to change aspects of its structure or operations in order to receive a government benefit.</span></p> <p><span>The Religion Clauses typically work together to protect religious institutions from government interference under what’s come to be known as the church autonomy doctrine. This doctrine reserves the right to make decisions about church doctrine and governance to the religious institution and forbids the government from even influencing such matters.</span></p> <p><span>In this article, I argue that the Free Exercise Clause alone, as it is currently being applied, is underequipped to protect the fundamental right of religious autonomy in the government benefit space. I propose that courts should instead use the church autonomy doctrine as the proper framework for analyzing indirect bars on religious institutions’ access to government benefits because it more fully accounts for, and is more protective of, the institutional and structural interests at stake than the Free Exercise Clause alone.</span></p>