From the perspective of church defendants, any weakening in the shield wall of the Ecclesiastical Abstention Doctrine creates concern because the future courts that will operate under the doctrine may further weaken it. At its best, the Ecclesiastical Abstention Doctrine might be viewed as a limitation on the jurisdiction of the third branch of government, the secular courts. However, if it is not a limitation on jurisdiction, then the secular courts are free to rule to the full extent of their jurisdiction in any subject an argument can be made that secular law does not interfere with doctrinal freedom. Moreover, the cost of compliance with secular law can reduce the freedom of religion by indirectly making the free exercise cost too much. This is especially true in the church school.
In Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), the student applicant to the church high school asserted she was denied admission due to dyslexia. The defendant church school claimed the admission was denied because the student’s academic record did not meet the admissions requirements. Michigan held in 1994 that the Ecclesiastical Abstention Doctrine deprived the secular court of jurisdiction to hear church school admissions cases. Thus, the Michigan Supreme Court took up the question of jurisdiction only and none of the other questions raised by the facts or parties. The Michigan Supreme Court reversed the lower courts and held that the Ecclesiastical Abstention Doctrine does not deprive the court of jurisdiction. The case was remanded for further proceedings. Indeed, the case might still be dismissed by the lower courts on other grounds such as whether Michigan’s Persons with Disabilities Civil Rights Act applies to church schools and on Ecclesiastical Abstention Doctrine grounds if a religious reason for the denial of admission is revealed in discovery.
However, whereas before in Michigan the case would not have survived long enough to become an independent search for neutral principles under which to decide the case it now could. Likewise, other cases on other topics could. “Congress shall make no law respecting an establishment of religion” will be very narrow if it is limited in effect to the ecclesiastical questions and does not limit the larger regulation by government of the day to day affairs of a church, such as operating a church school. No matter how “good” an idea it may be to force public schools to main stream all disabilities without commensurate adequate additional funding such a financial burden will close most church schools (and does not seem to be doing the public schools much “good”). As the Ecclesiastical Abstention Doctrine shrinks in scope church schools will find themselves increasingly outside the shield wall.