Arguments in favor of religious sovereignty often emphasize the benefits of autonomy for religious institutions while ignoring the civil rights of individuals who belong to or work for those institutions. To justify intrusions on individual civil rights, proponents of strong religious autonomy generally rely on the concept of implied consent. According to this rationale, individuals willingly give up the protection of civil rights laws when they voluntarily join religious organizations. This Essay responds to one scholar’s account of the consent rationale as undergirding the Supreme Court’s recognition of the ministerial exception: Christopher Lund’s excellent article, Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor. Although Lund skillfully sketches out a comprehensive framework for understanding when and to what extent government can regulate religious entities through civil law, the consent rationale itself is profoundly troubling. First, church members may face practical difficulties in exiting their religious affiliation, such as substantial pressures not to withdraw, and severe but informal sanctions if they do. Second, the view of religion as voluntaristic is a distinctly Protestant, not universal, understanding of religious faith. Finally, even if they consent to join and remain in a religious community, members may not have notice of the doctrines to which they have supposedly consented because the church’s stance may be unclear or changing. As a result, it is not always easy to identify who is the dissenter in a religious organization and who speaks for the church. Thus, if religious autonomy’s intrusion on individual rights is to be justified, it must be on grounds other than consent.
Ties that Bind? The Questionable Consent Justification for Hosanna-Tabor,
Nw. U. L. Rev.