In an ongoing series of occasional reports, “Religion and the Courts: The Pillars of Church-State Law,” the Pew Forum on Religion & Public Life explores the complex, fluid relationship between government and religion. Among the issues to be examined are religion in public schools, displays of religious symbols on public property, conflicts concerning the free exercise of religion, and government funding of faith-based organizations.

American religious institutions have been at the center of many legal controversies in recent years. The Roman Catholic Church, for instance, has been fighting a very public and contentious legal battle over whether it can be held accountable for employing priests who sexually abuse minors. The Episcopal Church also has been caught up in a series of legal disputes, most of them over the ownership of church property.

The Pillars of Church-State Law

The Legal Status of Religious Organizations in Civil Lawsuits
March 2011
Are legal disputes involving churches and other religious institutions constitutionally different from those involving their secular counterparts, and if so, how?

Government Funding of Faith-Based Organizations
May 2009
The debate over the meaning of the Establishment Clause.

Free Exercise and the Legislative and Executive Branches
October 2008
A look at state and federal statutes that protect religious freedom.

Free Exercise and the Courts
October 2007
The courts have grappled with the meaning of the Free Exercise Clause.

Religious Displays and the Courts
June 2007
Government displays of religious symbols have sparked fierce battles.

Religion in the Public Schools
October 2019
Americans continue to fight over the place of religion in public schools.

These and related lawsuits raise complex constitutional questions that have been troubling American courts for more than a century: Do the First Amendment’s religion clauses – which guarantee religious liberty and prohibit all laws “respecting the establishment of religion” – bestow a unique legal status on religious organizations that puts some of their decisions and actions beyond the reach of civil laws? To put it another way, are legal disputes involving churches and other religious institutions constitutionally different from those involving their secular counterparts, and if so, how?1

These questions have been raised in four different types of court cases – property disputes, employment of clergy, treatment or discipline of members, and misconduct by employees of religious organizations.

The first type of case involves property disputes within a religious organization. These conflicts often arise after an internal disagreement within a denomination prompts a congregation or congregations to split from the larger religious organization, leading to lawsuits over who owns church property, financial assets and even the name of the group. In recent years, a number of these cases have involved disputes over moral or social issues, such as whether to sanction same-sex marriages or accept openly gay and lesbian members of the clergy.

In the late 19th century, the U.S. Supreme Court ruled that courts may resolve these types of property disputes by deferring to the religious body’s hierarchy or leadership, or, when appropriate, to a majority of the congregation (see Internal Property Disputes).2 But more than a century later, in 1979, the Supreme Court clarified this approach by holding that, in some circumstances, the First Amendment allows a court to apply the same legal principles to a church property dispute as it would apply to a similar lawsuit involving a secular group.3 The ongoing lawsuits involving divisions within the Episcopal Church over homosexuality provide a good example of how courts might reach different decisions depending on which of these approaches they decide to apply. On the one hand, if a court were to adjudicate such a dispute by deferring to church hierarchy, it would respect the decisions that had been made by the national and regional Episcopal Church bodies in determining which congregational faction is entitled to possession of church property. But if the court were to apply ordinary legal principles to the case, its decision would depend on the unique circumstances of each congregation, including the language of legal documents governing the property in question, such as the deed of title or the congregation’s articles of incorporation.

A second type of case also involves disputes within a religious organization, but instead of property, these cases relate specifically to the employment of clergy. Federal and state laws generally prohibit employers from discriminating against their employees on various bases, including race and gender. But many courts have found that the First Amendment exempts religious organizations from these anti-discrimination laws when they make employment decisions about their own clergy. For instance, the Roman Catholic Church is free to employ only men as priests. But the strength and extent of this exemption – known as the “ministerial exception” – is still uncertain because the U.S. Supreme Court has never expressly ruled on it, and lower courts often divide on exactly how to apply the doctrine. This uncertainty could soon end, however, as the high court has agreed to hear a ministerial exception case in the fall of 2011.

A third type of case involves religious organizations’ treatment of their members. This category includes a wide range of situations, such as lawsuits challenging a minister’s or congregation’s public chastisement of a current member. Courts have often held that the First Amendment allows civil authorities to resolve such disputes as long as the legal issues are not thoroughly entangled with core matters of religious doctrine. For example, courts may not review whether a particular member of a religious organization should have been excommunicated, but courts may determine whether the administrative body that took the action actually had the authority to do so under the religious group’s own rules.

A fourth type of case involves legal actions against a religious entity for the wrongdoing of one of its employees or a person otherwise affiliated with the institution. These cases often involve common legal actions, such as a lawsuit stemming from an automobile accident caused by a church employee. But these lawsuits also can involve very controversial issues, such as the criminal and civil cases that have been filed against dioceses and other entities within the Catholic Church for the actions of priests who have sexually abused minors. Courts generally have resolved such cases by applying the same principles of civil and criminal law to religious entities that they would apply to similar secular organizations.

Although the four types of cases raise different legal issues, court rulings on all these matters have been consistent regarding one important principle: The government must not regulate religious entities in any way that would require a judge or other government official to interpret religious doctrine or rule on theological matters. At times, this “hands-off” principle might require courts to treat religious organizations differently from their secular counterparts. For example, a court can easily rely on contract and corporate law to resolve a dispute between a secular company and one of its subsidiaries. However, it is more difficult to use these same legal precepts to resolve a dispute between the national denomination of a church and a local congregation in a fight over the qualifications for ordained ministry, such as whether noncelibate gays and lesbians may serve as ministers.

While the existence of the hands-off principle is well accepted, its precise constitutional source is not. Some courts have found that its source is the First Amendment’s Free Exercise Clause, which guarantees religious liberty. Other courts have located the principle in the First Amendment’s other religion clause, the Establishment Clause, which prohibits the government from promoting religion.4 Finally, some scholars and courts contend that the source of the hands-off approach is found in both religion clauses. But whatever its precise constitutional source, the hands-off principle is deeply entrenched in the nation’s constitutional tradition and is likely to continue to limit the government’s authority to regulate religious entities.


1 Throughout this report, the term “churches” refers to churches, synagogues, temples, mosques and other houses of worship. Religious institutions include churches as well as other types of religious organizations that are exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code. (return to text)

2 This is known as the “deference to hierarchy” approach because it requires courts to resolve internal church disputes by deferring to the rulings of the church’s highest authority on the matter. (return to text)

3 This is known as the “neutral principles” approach because it permits courts to apply ordinary legal principles independent of the religious organization’s beliefs and internal structure. (return to text)

4 For background, see the following reports by the Pew Forum: A Fluid Boundary: The Free Exercise Clause and the Legislative and Executive Branches (October 2008), and A Delicate Balance: The Free Exercise Clause and the Supreme Court (October 2007). (return to text)

Photo credit: Jim Pickerell/iStockPhoto