Article
Respecting the Dignity of religious organisations: Courts deciding theology?
University of Western Australia Law Review
(2020)
Abstract
The notion of “dignity” is usually associated with individuals. But in the religious
sphere, individuals often join together as part of organisations, whether “churches”
or other groups. Court decisions in disputes involving religious parties may involve
the court being invited to decide what is a “valid” or “correct” religious doctrine. But
is it consistent with the dignity that ought to be afforded to religious persons and
groups for secular courts to take on a role as “amateur theologians”? There are good
public policy reasons to suggest not, based on the lack of expertise of judicial officers,
and religious freedom considerations supporting the authority and dignity of
religious actors to decide the meaning of their own doctrines. However, in some
cases, courts are required to determine religious questions for the purposes of
enforcing a private law right, such as under a charitable trust for the advancement of
religion, or an employment contract. Refusing to decide these issues in such cases
may leave deserving parties without a valid remedy. This article reviews the approach
to this issue taken by courts in the United States, United Kingdom and Australia, in
order to determine whether these different decisions can be reconciled. It
recommends that courts usually continue to respect the dignity of religious
organisations by declining to determine the content of religious doctrine, but should
be willing to do so where the private rights of parties arise under a religious regime
initially accepted by the parties concerned.
Keywords
- religious freedom,
- human dignity
Disciplines
Publication Date
2020
Citation Information
Neil J Foster. "Respecting the Dignity of religious organisations: Courts deciding theology?" University of Western Australia Law Review Vol. 47 (2020) p. 175 - 219 Available at: http://works.bepress.com/neil_foster/135/