Michael Helfand: Implied Consent: A Primer and a Defense
Forthcoming publication in Connecticut Law Review
Abstract of "Implied Consent: A Primer and a Defense":
One of the recent fault lines over religious liberty is the scope of protections afforded institutions and corporations that have religiously-motivated leadership. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But the remains significant debate over the principles that should guide judicial decisions addressing in what circumstances religiously-motivated institutions should — and in what circumstances they should not — receive the law’s protection.
In this chapter, I argue for an “implied consent” framework to address religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree of inherent religiosity, but in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules and resolve disputes related to accomplishing these uniquely religious objectives. In this way, an implied consent framework focuses less on the objective religious quality and nature of religious institutions and religious institutional claims, but on the contextual indications of an implicitly consensual relationship between religious institutions and their members. In turn, an implied consent framework not only supports some of the religious liberty claims advanced by religious institutions, but it also uses the implied consent framework to establish important limits on religious institutional authority and autonomy.