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The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9

This paper argues that § 57-9 of the Code of Virginia interferes with the free exercise of religion in violation of the Federal Constitution. Section 57-9 is at the forefront of a national dispute over church property resulting from the departure of conservative congregations from the Episcopal Church of the United States. The statute purports to determine property rights in the event of a church division, but in doing so challenges the constitutional boundaries of a religious institution’s free exercise rights. Although Virginia’s statute is unique, its implications with respect to the ability of the government to regulate religious polity and the role of courts in resolving church property disputes are broadly applicable and recent litigation involving the statute is being watched closely across the county.

Section 57-9 highlights historic uncertainty regarding the scope of free exercise rights for religious institutions, particularly in the context of church property. In the face of this uncertainty, three possible applications of the statute are addressed. One considers the statute most narrowly within the context of the “neutral principles of law” approach for resolving church property disputes. A second discusses § 57-9 as a neutral and generally applicable law. Finally, a third considers the statute broadly, as a special statute that regulates property holdings of religious institutions. Despite the various ways to characterize the statute, under each view § 57-9 violates the free exercise rights of the religious institutions it regulates.

Counterinsurgency, The War on Terror, and The Laws of War

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency’s principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency’s ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article is the first to evaluate the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas – from the use of non-lethal weapons to occupation law. It also argues that the war on terror legal debate has been myopic and misplaced. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates. 

Constitutional Enforcement by Proxy

Americans love their Constitution. But love, as we all know, is blind. This might explain why we often look to constitutional law to vindicate our civil rights while ignoring the potential of sub-constitutional law. Federal courts have not ignored this possibility, however, and have increasingly forced civil rights plaintiffs to seek relief from sub-constitutional law where it is available. A victim of discrimination, for example, might be denied the chance to invoke the Equal Protection Clause and told instead to rely on a federal antidiscrimination statute. In this and other cases, courts seem to believe that constitutional rights can be enforced through the application of sub-constitutional law, a practice this Article refers to as “constitutional enforcement by proxy.” 

This Article is the first to analyze the emerging practice of proxy enforcement. This issue is important because it lies at the confluence of several important discourses in the federal courts field—such as the judicial duty to issue a remedy for every constitutional wrong, the role of non-Article III actors in setting constitutional norms, and the degree to which sub-constitutional law can, like the Constitution itself, be “constitutive” of the national order. This Article’s central claim is that proxy enforcement, properly administered, is permissible and even advisable in a large number of cases. It is permissible because federal courts’ duty to supervise the behavior of non-Article III actors does not require courts to invoke the Constitution directly (unless Congress has ordered otherwise). If courts can maintain constitutional norms using sub-constitutional law, they are entirely free to do so.

The practice is normatively attractive because it promises a partial truce in the everlasting debate over interpretive supremacy. By relying on sub-constitutional law to enforce the Constitution, federal courts allow non-Article III actors a significant role in the articulation of constitutional norms, a role normally denied them when courts enforce the Constitution directly. Thus, sub-constitutional adjudication of civil rights claims does not spurn our love of the Constitution; it preserves individual rights while honoring a principle that lies at the Constitution’s very heart: popular sovereignty. 

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