Recent Applications of the Supreme Court’s Hands-Off Approach to Religious Doctrine

Abstract

In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed — and seemed to resolve — a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically — though anticlimactically — in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter.This article suggests that the Supreme Court’s inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court’s continuing, and arguably expanding, hands-off approach to religious doctrine. Courts and scholars have offered sound justifications for the Supreme Court’s hands-off approach to questions of religious doctrine grounded in constitutional principles of religious freedom as well as more general concerns over judicial competence and the role of judges. Nevertheless, as recent cases have illustrated, the hands-off approach raises concerns of its own, at times serving as a source of contention and confusion. The ongoing tensions and divisions among Justices and judges revolving around these issues may suggest a need for the Supreme Court to revisit and perhaps rethink the contours of the hands-off approach to achieve clarity for the future.