Stuart McPhail makes an interesting observation in his short essay “Being FAIR to Religion: Rumsfeld v. FAIR’s Impact on the Associational Rights of Religious Organizations,” 3 Harv. L. & Pol’y Rev. 221 (2009), which was recently brought to my attention by the Alliance Defense Fund’s excellent “Alliance Alert” daily email (a must-read for scholars and activists interested in religious liberty, marriage, or life issues). In the essay, McPhail looks at the freedom of expressive association doctrine as an alternative grounding for the rights of religious organizations. He does so because he questions whether the traditional protection for such rights, the church autonomy doctrine, has survived the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990).

McPhail asks “whether or not the church autonomy doctrine has survived Smith.” He acknowledges that courts which have considered the matter, including five federal circuit courts, have held that it did so. However, he questions whether “Smith ended religious organizations’ unique associational rights, leaving only the protections for expressive associations and any limitations to them, upon which all other organizations must rely.”   He believes that “the survival of this latter doctrine is debatable in light of one of the most important Free Exercise cases of the recent Court: Employment Division v. Smith.”

Missing from his discussion, however, is a key excerpt from the majority’s opinion in Smith itself. In an early paragraph, Justice Scalia specifically cites three key church autonomy cases, indicating their continuing vitality:

Thus, the First Amendment obviously excludes all “governmental regulation of religious beliefs as such.” Sherbert v. Verner, supra, 374 U.S. at 402. The government may not . . . lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church, 393 U.S. 440, 445-452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95-119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-725 (1976).

The cases that Justice Scalia cited provide for a robust church autonomy, guaranteeing a “spirit of freedom for religious organizations, an independence from secular control or manipulation — in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” Kedroff, 344 U.S. at 115.

In short, I think there can be no doubt that the church autonomy doctrine survived Smith, McPhail’s concerns notwithstanding. Though he has other interesting points to make in the course of his essay, his suggestion that Smith killed the church autonomy doctrine should not be allowed to pass unchallenged.