I've been blogging this week about church autonomy. So far my posts have been based on my new paper on "The Limits of Church Autonomy." In this post I'm going to leave the subject of the paper to talk about another issue in the church autonomy caselaw, one that's a bit in the weeds of civil procedure but really matters. (This post is based on a recent symposium presentation I gave at Loyola Chicago; I'm currently writing up a longer version of this for the symposium issue of the Loyola Chicago Law Journal.)
Courts are divided about whether church autonomy is jurisdictional in a more technical and procedural sense. For a while, the federal courts were split as to whether church autonomy should be raised as a jurisdictional challenge under Rule 12(b)(1) or as an affirmative defense under Rule 12(b)(6). Alongside the courts that agreed that church autonomy was jurisdictional were others that denied church autonomy fit the description of jurisdictional.
Why it matters
