New Article on Constitutional Law and the Development of Religious Doctrine

I've posted, over on the right, a new article of mine, which is forthcoming in the UCLA Law Review. Here's the abstract:

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. It is not the case that governments like ours are or can 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, but also and in many ways seek to assimilate – that is, to transform – religion and 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.

Rick