Conceptual comparison of “political question“and “religious question“ doctrines - Autonomy of churches and religious communities and the scope of judicial review

Marković, Vasilije (2023) Conceptual comparison of “political question“and “religious question“ doctrines - Autonomy of churches and religious communities and the scope of judicial review. In: Savremeno državno-crkveno pravo. Institut za uporedno pravo : Pravoslavna Mitropolija Crnogorsko-primorska, Beograd : Budva, pp. 73-111. ISBN 978-86-82582-04-5

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Abstract

In this paper author performs a comparative conceptual analysis of two non-justicability doctrines born in the practice of the US Supreme Court - the political question doctrine and the religious question doctrine. The rationales for both doctrines are somewhat complementary and are contained in the principle of separation of powers, ie the separation between state and church, as well as the epistemological impossibility of the courts to delve into issues that are political or religious at their essence. In the second part of the paper, author analyzes various theoretical attempts to, in the absence of clear guidelines arising from case law, clearly shape the religious question doctrine, i.e. limit its application, since the absolute exclusion of issues that contain an admixture of a religious component from judicial control in modern secular state is not acceptable. In this sense, theoretical attempts that distinguish between normative and positive religious issues, those that arise within the framework of public and private law, were analyzed, as well as the attempt of the so-called secular translation, as a modality of limiting the religious questionn doctrine. Nevertheless, the author in the paper, starting from the historical development of the religious question doctrine, points out the (re)affirmation of the institutional autonomy of churches and religious communities as the core and the most consistent criterion for shaping this doctrine. Questions of self-determination of churches and religious communities (such as internal organization regulation, the election of leaders, and the formulation of one’s own religious teaching) must therefore undoubtedly remain beyond the reach of judicial review. The author concludes in the paper that the further course of development of the religious question doctrine, ie will it be stable and predictable, and thus legitimate, or will it be non-linear and turbulent, as is the case with the political question doctrine in contemporary legal systems, will exclusively depend on adherence to this criterion of institutional autonomy of churches and religious communities.

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