Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine


Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable because, when "civil courts undertake to resolve [doctrinal] controversies .... the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises-if uncritically embraced-can subtly distort our constitutional discourse.

This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrine and the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. Governments like ours are not and cannot be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of religion; they also and in many ways seek to assimilate-that is, to transform-religious teaching. And it is precisely because such governments do have an interest in the content, and therefore in the "development," of religious doctrine-an interest that they will, if permitted, quite understandably pursue-that authentic religious freedom is so fragile.

About the Author

Associate Professor, Notre Dame Law School

By uclalaw