This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely on both constitutional and often— perhaps more centrally—policy concerns over the competence and prudence of judicial adjudication of religious questions. Moreover, scholars have documented the continued expansion of the Court’s approach, pursuant to which, like the third rail, the interpretation of religious doctrine is viewed as posing a danger to the judicial system; as such, judges should not only steer clear of these questions but should remain far away. Finally, the image of a third rail conveys the notion that, alongside and intertwined with doctrinal Free Exercise and Establishment Clause decision-making, the hands-off approach constitutes a third basic element of contemporary Religion Clause jurisprudence.
Second, likewise as a descriptive matter, characterizing the hands-off approach as the third rail stands for the proposition that the Court’s abiding and increasing reluctance as well as refusal to interpret religious doctrine has developed alongside the other two primary components of the Court’s Religion Clause jurisprudence. Instead, the hands-off approach arguably appears to be driving many of the Court’s decisions in Free Exercise and Establishment Clause cases in a number of meaningful ways. Although not as well-documented as other descriptive aspects of the Court’s approach, close analysis of key elements from modern Religion Clause case law and legislation points to the outsized role the hands-off approach has played in this regard as well.
Third, taking the analysis one step further, as a normative matter, the implied reference to the hands-off approach as “the tail that wags the dog” reflects the contention that the Court’s approach not only drives important areas of Religion Clause jurisprudence, but that it has had unnecessary and problematic—if not detrimental—effects on the Court’s decisions. Specifically, in several areas, close adherence to an expansive hands-off approach has arguably had a negative impact on both the Court’s reasoning and the outcome in important cases. Thus, the hands-off approach stands as the tail vis-à-vis broader concepts and concerns underlying Religion Clause jurisprudence.
Part I of this Article surveys the application and expansion of the hands-off approach in the context of cases revolving around the Free Exercise Clause, the Religious Freedom Restoration Act (“RFRA”), and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). In some instances, a deferential hands-off approach produces overly broad protections of free exercise rights at the expense of valid, counterbalancing governmental and societal interests. Conversely, in other cases, the hands-off approach may result in overly restrictive limits on the scope of the free exercise of religion.
Part II turns to cases of intrachurch disputes. These cases suggest that an overly expansive hands-off approach often works to maintain the status quo, thereby protecting the interests of the party in power while disregarding the concerns of a vulnerable party asserting arguably meritorious claims. This Part also explores the impact of a deferential hands-off approach on Establishment Clause cases, in which the failure or refusal to evaluate and distinguish the religious nature of different forms of religious symbols or activities may too narrowly or, alternatively, too broadly limit governmental conduct.
Accordingly, Part III examines and evaluates common justifications for broad judicial deference to adherents’ characterizations of their religious practices and beliefs. This Part raises questions about whether the justifications are convincing on their own terms and whether they outweigh the negative results that the hands-off approach often produces. Finally, having found that the problematic nature and consequences of an expansively deferential hands-off approach likely outweigh its ostensible justifications, this Part explores potential alternatives to various elements of the current articulation and application of the hands-off approach.
The Article concludes with the observation that the other two basic components of the Court’s Religion Clause jurisprudence— the interpretation and application of the Free Exercise Clause and the Establishment Clause—are currently undergoing fundamental transitions and transformations to a degree unseen in recent memory. At this moment, perhaps the third rail of Religion Clause jurisprudence—interpreting legal doctrine— should no longer remain untouchable. Instead, the Court’s expansive and deferential hands-off approach should likewise undergo a transformation of its own.
