PEACEFUL COEXISTENCE

Panelists’ Written Statements
233
I have no doubt that lawyers for religious organizations are likely to advise them that they should
oppose any bill that requires them to disclose liability under the civil rights laws. But, as we
have learned so well in the clergy sex abuse arena, many times a lawyer’s advice to religious
organizations that includes a lack of transparency can later subject the organization to charges
stemming from such immoral and self-serving behavior. Religious organizations need to pursue
transparency and fairness in this arena, as well as the child protection arena to be able to demand
respect and allegiance in the public square.
Michael A. Helfand
As expressed by the Commission, the focus of this briefing is to explore tensions between two
competing values: non-discrimination and religious liberty. This discussion comes at a crucial
time as we face a new set of debates over the role of religion in a liberal democracy. While
many such debates have explored the extent to which government should grant religious
individuals exemptions from generally applicable laws, 218 a new wave of debates have
increasingly focused on the unique role played by religious institutions in our constitutional
order. Indeed, at the center of many of these new debates stand competing views regarding the
extent to which religious institutions and organizations should be afforded constitutional
exemptions from statutes and public policies that protect individuals from various forms of
discrimination. Such constitutional protections - often referred to collectively under the umbrella
of the “church autonomy doctrine” 219 - generally provide religious institutions with a right to
direct their own internal affairs free from government interference. 220 However, critics worry
that granting religious institutions with unbridled discretion might lead to wide-ranging
discrimination and misconduct. 221
218
Debates regarding exemptions for religious individuals continue to play an important role in the general discussion
over the role of religion in the United States. See, e.g., Elane Photography, LLC v. Willock, No. 30,203 (N.M. Ct.
App. May 31, 2012) (holding a photographer liable under New Mexico’s Human Rights Law for refusing to
photograph a same-sex marriage).
219
See, e.g., Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238 (10th Cir. 2010) (referencing the “church
autonomy doctrine”); Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (same). The phrase “church
autonomy doctrine” is typically associated with Douglas Laycock who famously deployed the term in his seminal
article Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations
and the Right to Church Autonomy, 81 COLUM. L. REV. 1373 (1981). However, Laycock has noted that he did not
coin the phrase, but instead borrowed it from the title of Paul G. Kauper’s Church Autonomy and the First
Amendment: The Presbyterian Church Case, 1969 SUP. CT. REV. 347. See Douglas Laycock, Church Autonomy
Revisited, 7 GEO. J.L. & PUB. POL’Y 253, 254 (2009).
220
See, e.g., Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 115 (1952); Watson v.
Jones, 80 U.S. 679, 728-29 (1872).
221
See, e.g., Leslie C. Griffin, The Sins of Hosanna-Tabor, 88 IND. L.J. (forthcoming 2013), available at
http://ssrn.com/abstract=2026046; Caroline Mala Corbin, Above the Law? The Constitutionality of the Ministerial
Exemption from Antidiscrimination Law, 75 FORDHAM L. REV. 1965, 2004-05 (2007); Marci A. Hamilton, Religious
Institutions, the No-Harm Doctrine, and the Public Good, 2004 BYU L. REV. 1099 (2004).