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Judicial Nonintervention

§ 6.10.01
Key point 6-10.01. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

In Watson v. Jones,[261] 80 U.S. 679, 722 (1871). the United States Supreme Court developed a framework for the judicial review of ecclesiastical disputes that has persisted essentially unchanged until today, more than a century later. The Court began its landmark opinion by acknowledging that "religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints." Though recognizing in principle the authority of civil courts to address the "rights of property, or of contract" of ecclesiastical organizations or officers, the Court proceeded to severely limit this authority. Most importantly, the Court held that "whenever the questions of discipline, or of faith, of ecclesiastical rule, custom, or law have been decided by the highest church judicatory to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them. …"

In 1872, one year after the Watson decision, the Supreme Court emphasized that it had "no power to revise or question ordinary acts of church discipline, or of excision from membership," nor to "decide who ought to be members of the church, nor whether the excommunicated have been regularly or irregularly cut off."[262] Bouldin v. Alexander, 82 U.S. (15 Wall.) 131, 139-40 (1872) (emphasis added). Many courts have followed this rule of judicial "non-intervention," concluding that the discipline and dismissal of church members is exclusively a matter of ecclesiastical concern and thus the civil courts are without authority to review such determinations. This position generally is based upon the First Amendment guarantees of religious freedom and the nonestablishment of religion, or upon the fact that by joining the church a member expressly or implicitly consents to the authority of the church to expel members.[263] See generally Nunn v. Black, 506 F. Supp. 444 (W.D. Va. 1981), aff'd, 661 F.2d 925 (4th Cir. 1981), cert. denied, 102 S. Ct. 1008 (1982); Simpson v. Wells Lamont Corp., 494 F.2d 490 (5th Cir. 1974); Konkel v. Metropolitan Baptist Church, Inc., 572 P.2d 99 (Ariz. 1977); Macedonia Baptist Foundation v. Singleton, 379 So.2d 269 (La. 1979); St. John's Creek Catholic Hungarian Russian Orthodox Church v. Fedak, 213 A.2d 651 (N.J. 1965), rev'd on other grounds, 233 A.2d 663 (N.J. 1967). As noted in the preceding section, the United States Supreme Court has held that all who unite themselves with a religious organization do so with implied consent to its bylaws and procedures.[264] Watson v. Jones, 80 U.S. 679, 729 (1871). Another court has noted, "A party having voluntarily assented to becoming a member of the local church thereby subjects himself to the existing rules and procedures of said church and cannot deny their existence."[265] State ex rel. Morrow v. Hill, 364 N.E.2d 1156, 1159 (Ohio 1977). It is therefore held that a church may promulgate rules governing the expulsion or excommunication of its members, and such rules bind the church's members.

1. HIERARCHICAL CHURCHES

There is little doubt that the civil courts must accept the determinations of hierarchical churches concerning ecclesiastical discipline. In 1976, the United States Supreme Court ruled that

the First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.[266] Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976).

The Supreme Court further noted, in the same decision:

We have concluded that whether or not there is room for "marginal civil court review" under the narrow rubrics of "fraud" or "collusion" when church tribunals act in bad faith for secular purposes, no "arbitrariness" exception—in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations—is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense "arbitrary" must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly require the church adjudicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits. …[267] Id. at 713.

Permitting civil courts to review the membership determinations of hierarchical churches would "undermine the general rule that religious controversies are not the proper subject of civil court inquiry."[268] Id. at 713. In other words, the fact that a hierarchical church's determination regarding membership status was "arbitrary" (in the sense that it violated the church's own internal rules) is not a justification for civil court review. This extraordinary rule demonstrates the Court's commitment to church autonomy in the context of membership determinations involving hierarchical churches.

Membership determinations based on "fraud or collusion" may constitute a basis for marginal civil court review. The Court left this question unanswered. However, it did note that the concepts of fraud or collusion both involve "church tribunals [acting] in bad faith for secular purposes." It is virtually inconceivable that such a standard could ever be established, particularly in view of the higher evidentiary standard ("clear and convincing evidence") that generally applies to allegations of fraud.

What is a "hierarchical church"? One legal authority defines "hierarchical" and "congregational" churches as follows:

At least three kinds of internal structure, or "polity," may be discerned: congregational, presbyterial, and episcopal. In the congregational form each local congregation is self-governing. The presbyterial polities are representative, authority being exercised by laymen and ministers organized in an ascending succession of judicatories—presbytery over the session of the local church, synod over the presbytery, and general assembly over all. In the episcopal form power reposes in clerical superiors, such as bishops. Roughly, presbyterial and episcopal polities may be considered hierarchical, as opposed to congregational polities, in which the autonomy of the local congregation is the central principle.[269] Note, Judicial Intervention in Disputes Over the Use of Church Property, 75 HARV. L. REV. 1142, 1143-44 (1962).

2. CONGREGATIONAL CHURCHES

Do the civil courts have authority to review the membership determinations of congregational churches? A few courts have done so on the ground that the Supreme Court's 1976 ruling in Milivojevich[270] See note 229, supra, and accompanying text. was limited to hierarchical churches. Such cases are reviewed in the next section.

Most courts, however, have been unwilling to intervene in the membership determinations of congregational churches on the ground that the principle enunciated by the Supreme Court in its 1976 ruling is broad enough to apply to congregational churches. For example, a federal district court in Virginia ruled that "it is clear that the fact that the local church may have departed arbitrarily from its established expulsion procedures in removing [members] is of no constitutional consequence [citing Milivojevich]."[271] Nunn v. Black, 506 F. Supp. 444 (W.D. Va. 1981), aff'd, 661 F.2d 425 (4th Cir. 1981), cert. denied, 454 U.S. 1146 (1982). The court noted that the church apparently was part of a "larger religious society," but that the society had "no structured decision-making process."

A federal district court in Ohio acknowledged that "it is not altogether clear whether the Supreme Court, if confronted with an internal dispute within a congregational church, would follow the [Milivojevich] analysis in all respects."[272] First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983). However, the court concluded that "because the 'hands off' policy espoused by the [Supreme Court in Milivojevich] is of constitutional dimension, we find it difficult to justify the application of a different standard where a congregational church is involved." The court concluded that (1) church discipline is an ecclesiastical matter in a congregational church,[273] The court noted that the Supreme Court in Milivojevich observed that "questions of church discipline … are at the core of ecclesiastical concern." and (2) "unless the internal disciplinary decisions of [a congregational church] are tainted by fraud or collusion, or constitute an extreme violation of the rights of a disciplined member, civil court inquiry with respect to the underlying reasons for church disciplinary action is constitutionally impermissible."

A federal district court in the District of Columbia, while acknowledging that Milivojevich involved a hierarchical church, concluded that "[we] can discern no justification for refusing to apply the First Amendment analysis and reasoning of the Supreme Court and lower federal court case law involving hierarchical churches to [the membership determinations of a congregational church]."[274] Burgess v. Solid Rock Baptist Church, 734 F. Supp. 30 (D.D.C. 1990). The court noted that membership determinations typically involve standards of membership that are intrinsically ecclesiastical. For example, in this case, the congregational church's bylaws specified that "members are expected … to be faithful in all duties essential to the Christian life." The court could not contemplate "any criterion for membership that could more directly implicate ecclesiastical considerations protected by the First Amendment. …" It concluded that the church's

own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention. It is well-settled that religious controversies are not the proper subject of civil court inquiry. Religious bodies must be free to decide for themselves, free from state interference, matters which pertain to church government, faith and doctrine.[275] Id. at 34 (emphasis in original), quoting Dowd v. Society of St. Columbans, 861 F.2d 761, 764 (1st Cir. 1988).

Some courts have expressed concern that the rule of judicial non-intervention may lead to injustice due to the lack of a judicial remedy. For example, one Supreme Court justice opined that "if the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness."[276] Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 727 (1976) (Justice Rehnquist, dissenting). Justice Rehnquist also observed, in the same opinion, that "[t]o make available the coercive powers of civil courts to rubber-stamp ecclesiastical decisions of hierarchical religious associations, when such deference is not accorded similar acts of secular voluntary associations, would … itself create far more serious problems under the Establishment Clause." Id. at 734. It also has been noted that "when a faction of the church arrogates authority to itself, disrupts the organization and sets at naught well-defined rules of church order, there is no recourse left for those who desire their rights settled through orderly processes but resort to the courts."[277] Epperson v. Myers, 58 So.2d 150, 152 (Fla. 1952). See also Jones v. Wolf, 443 U.S. 595 (1979) (United States Supreme Court suggests that judicial review is permissible if restricted to an analysis based exclusively on "neutral principles" of law devoid of any interpretation of religious doctrine); I. Ellman, Driven From the Tribunal: Judicial Resolution of Internal Church Disputes, 69 CAL. L. REV. 1380 (1981) (arguing that judicial review of internal church disputes should be permitted as long as doctrinal interpretation is not required).

Case studies
  • A federal appeals court held that religious "shunning" behavior is protected by the First Amendment because imposing liability for such behavior would have the same effect as prohibiting it and would directly restrict the free exercise of religion. The court concluded: "Shunning is an actual practice of the church itself, and the burden of tort damages is direct. … Imposing tort liability for shunning on the church or its members would in the long run have the same effect as prohibiting the practice and would compel the church to abandon part of its religious teachings. … The church and its members would risk substantial damages every time a former church member was shunned. In sum, a … prohibition against shunning would directly restrict the free exercise of the Jehovah's Witnesses' religious faith." [278] Paul v. Watchtower Bible & Tract Society, 819 F.2d 875 (9th Cir. 1987).
  • The Alaska Supreme Court ruled that a church could not be sued for "shunning" members of another church that it labeled a "cult." The court noted that the act of shunning was clearly religiously based and sincere. The shunning was undertaken "to force [the members of the other church] to renounce and change their religious beliefs." Also, "shunning has its roots in early Christianity and various religious groups in our country engage in the practice." [279] Sands v. Living Word Fellowship, 34 P.3d 955 (Alaska 2001).
  • An Illinois court ruled that it was barred by the First Amendment from resolving a lawsuit brought by a dismissed member of an orthodox Jewish community claiming that his dismissal lacked due process and amounted to defamation. The court concluded: "The First Amendment to the Constitution of the United States bars any secular court from involving itself in the ecclesiastical controversies that may arise in a religious body or organization. … Where resolution of ecclesiastical disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First Amendment mandates that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them." The court concluded that Aaron's lawsuit against the rabbinic court had to be dismissed since his claims could not be resolved "without extensive inquiry into religious law and polity." [280] Thomas v. Fuerst, 2004 WL 74292 (Ill. App. 2004). See also Abrams v. Watchtower Bible and Tract Society, 715 N.E.2d 798 (Ill. App. 1999).
  • The Iowa Supreme Court ruled that it lacked the authority to resolve a lawsuit brought by an individual challenging his dismissal from church membership. It concluded that the member's dismissal was an internal church matter over which the civil courts have no jurisdiction. It observed, "The general rule is that civil courts will not interfere in purely ecclesiastical matters, including membership in a church organization or church discipline." The court concluded: "[The church's] decision to excommunicate [the member] was purely ecclesiastical in nature, and therefore we will not interfere with the action. Interfering with the decision would contravene both our history of leaving such matters to ecclesiastical officials and the first and fourteenth amendments of the United States Constitution." [281] John v. Estate of Hartgerink, 528 N.W.2d 539 (Iowa 1995).
  • The Michigan Supreme Court ruled that it was barred from resolving a claim by a dismissed church member that his church violated his legal rights when it dismissed him. The court concluded that the member's claims against both the pastor and church were barred by his own consent to the process of discipline. The court noted that upon becoming a member of the church, he "explicitly consented in writing to obey the church's law, and to accept the church's discipline 'with a free, humble, and thankful heart.'" The court concluded: "As the Supreme Court stated over 130 years ago, 'all who unite themselves to such a body do so with an implied consent to this [church] government, and are bound to submit to it.'" [282] Smith v. Calvary Christian Church, 614 N.W.2d 590 (Mich. 2000), quoting Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).
  • A Minnesota appeals court ruled that church members could not challenge their dismissal in court. The court noted that the First Amendment "precludes judicial review of claims involving core questions of church discipline and internal governance." It concluded that the members' claims all involved core questions of church discipline that it was not able to resolve. [283] Schoenhals v. Mains, 504 N.W.2d 233 (Minn. App. 1993). See also Pfeil v. St. Matthew Church, 2015 WL 134055 (Minn. App. 2015).
  • A Missouri court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a lawsuit brought by a dismissed church member claiming that his church defamed him in a letter it sent to members of the congregation. The court noted that the First Amendment prevents "civil court intervention in matters involving church discipline, including the discipline of a member of the congregation. … Here, the claims of libelous remarks are clearly related to [the pastors'] belief that [the member's] conduct within the church required he be disciplined; the comments were made during the time of the controversy concerning his removal from membership; and the remarks were made to people associated with the church as a part of the pastors' report to the 'church family' about the member's impending removal from the church membership. As such, they fall within the scope of First Amendment protection." [284] Brady v. Pace, 2003 WL 1750088 (Mo. App. 2003).
  • A North Carolina court ruled that the civil courts are barred by the First Amendment from resolving cases involving the discipline of church members unless they can do so "without resolving underlying controversies over religious doctrine." [285] Tubiolo v. Abundant Life Church, (N.C. App. 2004).
  • An Ohio court ruled that it could not resolve a lawsuit brought by several persons challenging their dismissal as members of their church. [286] Alexander v. Shiloh Baptist Church, 592 N.E.2d 918 (Ohio Com. Pl. 1991). Accord Howard v. Covenant Apostolic Church, Inc., 705 N.E.2d 305 (Ohio App. 1998).
  • The Oklahoma Supreme Court refused to resolve the claim of former church members that their dismissal was improper. The court observed: "We cannot decide who ought to be members of the church, nor whether the excommunicated have been justly or unjustly, regularly or irregularly, cut off from the body of the church. We must take the fact of expulsion as conclusive proof that the persons expelled are not now members of the repudiating church; for, whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court." [287] Fowler v. Bailey, 844 P.2d 141 (Okla. 1992), quoting Shannon v. Frost, 42 Ky. 253 (1842).
  • The Texas Supreme Court ruled that the First Amendment guaranty of religious liberty prevented it from resolving a dismissed church member's claim that her pastor committed "professional negligence" by using information she shared with him in confidence as the basis for disciplining her. [288] Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007). See also Moultin v. Baptist Church, 498 S.W.3d 143 (Tex. App. 2016).
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