Pastor, Church & Law

Judicial Resolution of Church Disputes

§ 9.07

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

1. Decisions of the United States Supreme Court

In Watson v. Jones, 12980 U.S. 679, 722 (1871) [hereinafter cited as Watson] See also Bernard, Churches, Members, and the Role of the Courts: Toward a Contractual Analysis, 51 NOTRE DAME LAWYER 545 (1976); Dusenberg, Jurisdiction of Civil Courts over Religious Issues, 20 OHIO ST. L.J. 508 (1959); Ellman, Driven from the Tribunal: Judicial Resolution of Internal Church Disputes, 69 Cal. L. Rev. 1380 (1981); C. Esbeck, Tort Claims Against Churches and Ecclesiastical Officers: The First Amendment Considerations, 89 W. Va. L. Rev. 22-23 (1986); Gilkey, The Judicial Role in Intra-Church Disputes Under the Constitutional Guarantees Relating to Religion, 75 W. Va. L. Rev. 105 (1972); Patton, The Civil Courts and the Churches, 54 U. Pa. L. Rev. 391 (1906); Young and Tigges, Into the Religious Thicket—Constitutional Limits on Civil Court Jurisdiction over Ecclesiastical Disputes, 47 Ohio St. L.J. 475 (1986) 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. …” The Court explained this fundamental limitation on the authority of the courts to review ecclesiastical controversies pertaining to faith or discipline as follows:

All who unite themselves to such a body do so with an implied consent to its government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance subject only to such appeals as the organism itself provides for.

Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals. Each of these large influential bodies … has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so.130 Id. at 729.

Similarly, the Court observed:

The decisions of ecclesiastical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offense against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religion or good morals.131 Id. at 732.

The Court based this fundamental limitation on civil court review of ecclesiastical controversies involving faith or discipline upon jurisdictional grounds:

But it is a very different thing where a subject matter of dispute, strictly and purely ecclesiastical in its character—a matter over which the civil courts exercise no jurisdiction, a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standards of morals required of them—becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred upon the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding adopted; and, in a sense often used in the courts, all of those may be said to be questions of jurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court. This principle would deprive these bodies of the right of construing their own church laws … and would, in effect, transfer to the civil courts where property rights were concerned the decision of all ecclesiastical questions.132 Id. at 733 (emphasis added).

The Watson ruling may be summarized as follows:

  1. the civil courts may never intervene in ecclesiastical disputes involving questions of ecclesiastical doctrine, polity, discipline, practice, or administration;
  2. civil courts may in some cases adjudicate the “rights of property, or contracts” of ecclesiastical organizations and officers; and
  3. civil courts have no jurisdiction to adjudicate the “rights of property, or of contracts” if matters of ecclesiastical faith, discipline, or practice are implicated in the controversies and an ecclesiastical body has authority to determine the issue.

The third consideration was based on three additional factors: (a) civil judges are incompetent to resolve questions of religious doctrine; (b) church members have voluntarily joined the church and have given their implied consent to its internal governance; and (c) the structure of our political system requires a severe limit on involvement by the civil courts in the affairs of religious bodies so as to secure religious liberty.

The Watson case remains uncompromised today. Indeed, in 1952 the Supreme Court elevated it to the level of First Amendment jurisprudence.133 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) [hereinafter cited as Kedroff].

One year after the Watson ruling, the Supreme Court again 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.”134 Bouldin v. Alexander, 82 U.S. (15 Wall.) 131, 139-40 (1872) (emphasis added).

In 1928, the Supreme Court observed, in a case involving the authority of an ecclesiastical organization to discipline a minister:

Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a [clergyman] are and whether the candidate possesses them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties … made them so by contract or otherwise.135 Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16-17 (1928) (Justice Brandeis) (emphasis added) [hereinafter cited as Gonzalez].

The Court’s ruling in Gonzalez is significant, for it is a specific prohibition of civil court interference in the determinations of ecclesiastical bodies regarding the qualifications of clergy—even if “civil rights” are involved—absent fraud, collusion, or arbitrariness. As will be noted later, the Supreme Court subsequently eliminated arbitrariness and severely limited fraud and collusion as available grounds for civil court review.

In 1952, the Supreme Court in the Kedroff ruling136 344 U.S. 94 (1952). reaffirmed its pronouncement in Watson that civil courts have no authority to resolve “questions of discipline, or of faith, or of ecclesiastical rule, custom, or law.” The Court, referring to the Watson case, observed that “the opinion radiates, however, a spirit of freedom for religious organizations, and independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Freedom to select the clergy … we think must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” Significantly, the Court also observed:

There are occasions when civil courts must draw lines between the responsibilities of church and state for the disposition or use of property. Even in those cases when the property right follows as an incident from decisions of the church custom or law on ecclesiastical issues, the church rule controls. This under our Constitution necessarily follows in order that there may be free exercise of religion.137 Id. at 120 (emphasis added).

The Kedroff decision is important since it specifically holds that alleged deprivations or interference with “property rights” cannot serve as a basis for civil court review of ecclesiastical determinations regarding the qualifications or dismissal of clergy where “the property right follows as an incident from decisions of the church … on ecclesiastical issues.” This important language should be read together with the Court’s statement in the Gonzalez case that “the decisions of the proper church tribunals [on matters regarding the qualifications of clergy], although affecting civil rights, are accepted in litigation before the secular courts as conclusive,” except under extraordinary circumstances described below. These two rulings indicate that dismissed clergy will not be able to have their dismissals reviewed by the civil courts merely because they claim that their civil or property rights have been violated.

In 1969, the Supreme Court reaffirmed the principle of judicial nonintervention in church disputes involving ecclesiastical discipline, faith, or practice, citing with approval Watson, Gonzalez, and Kedroff.138 Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969) [hereinafter cited as Presbyterian Church].

The Court did acknowledge, however, that there is room for “marginal civil court review” of ecclesiastical controversies involving the disposition of church real estate following a church schism. Nevertheless, even this narrow review is “severely circumscribed” by the First Amendment, since the civil courts have “no role in determining ecclesiastical questions in the process of resolving church property disputes.” The Court added:

First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes; the amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.139 Id. at 449.

In 1976, the Supreme Court again addressed an ecclesiastical controversy.140 Serbian Eastern Orthodox Diocese v. Milivojevich, 423 U.S. 696 (1976) [hereinafter cited as Serbian]. In Serbian, however, this issue was not control of church property, but rather the legal right of a defrocked bishop to challenge his expulsion in civil court. The Illinois Supreme Court, citing Gonzalez,141 See note 135, supra, and accompanying text. had reversed the decision of the Serbian Eastern Orthodox Diocese expelling the bishop. The court reasoned that the Diocese had not followed its own bylaws and accordingly its decision to expel was “arbitrary” and, on the basis of Gonzalez, subject to civil court review. In reversing the Illinois Supreme Court’s ruling, the United States Supreme Court observed:

The conclusion of the Illinois Supreme Court that the decisions of the [Diocese] were “arbitrary” was grounded upon an inquiry that persuaded the Illinois Supreme Court that the [Diocese] had not followed its own laws and procedures in arriving at those decisions. 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. …142 Id. at 712-713.

The Court rejected an attempt by a defrocked bishop to force civil court review on the basis of an alleged deprivation of a “property right,” since the alleged property right was incidental to the underlying issue of ecclesiastical discipline and “the civil courts must accept that consequence as the incidental effect of an ecclesiastical determination that is not subject to judicial abrogation, having been reached by the final church judicatory in which authority to make that decision resides.”

Serbian is significant for the following reasons: (a) it reaffirmed the rule of judicial nonintervention in cases of ecclesiastical discipline over which an ecclesiastical organization has jurisdiction; (b) it rejected the claim that civil courts can justify intervention in cases of ecclesiastical discipline on the basis of alleged deprivation of “property rights,” if the alleged deprivation is a mere incidental effect of the underlying disciplinary process; and (c) it categorically rejected civil court review of ecclesiastical disciplinary proceedings on the basis of “arbitrariness,” and defined arbitrariness as a failure by a church to follow its own rules and procedures. The Court based these conclusions on the following grounds: (a) civil courts are forbidden by the First Amendment from engaging in “searching inquiry” into the organizational documents of religious organizations; (b) civil judges have no training, experience, or expertise in matters of ecclesiastical law or governance; and (c) “constitutional concepts of due process, involving secular notions of fundamental fairness or impermissible objectives,” are not relevant to matters of ecclesiastical cognizance which typically “are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria.”

The most recent decision of the Supreme Court came in 1979.143 Jones v. Wolf, 443 U.S. 595 (1979) [hereinafter cited as Jones]. Like Presbyterian Church, Jones involved a dispute over control of church real estate following a schism. The Court reaffirmed the long-established principle that “the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice,” and that “the amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization.” The Court then specifically held that questions of church membership and ecclesiastical discipline are matters of ecclesiastical doctrine and accordingly are beyond the reach of the civil courts:

Issues of church doctrine and polity pervade the provisions of the [Presbyterian] Book of Church Order dealing with the identity of a local congregation. The local church corporation consists of “all the communing members on the active role” of the church. The “active role,” in turn, is composed “of those admitted to the Lord’s table who are active in the church’s life and work.” The session is given the power “to suspend or exclude from the Lord’s Supper those found delinquent, according to the Rules of Discipline.” The session is subject to “the review and control” of the Presbytery’s general authority to “order whatever pertains to the spiritual welfare of the churches under its care.”144 Id. at 609 n.7.

Clearly, on the basis of this language, any determination by a church or denomination agency regarding the qualifications or lack of qualifications of a minister goes to the very essence of religious doctrine, and is not reviewable by a civil court. This result is not affected by a dismissed minister’s claim that his or her civil, contract, or property rights were abridged as a result of the disciplinary process. To hold otherwise would be to ignore a century of Supreme Court precedent. The Court in Jones did acknowledge that in the context of disputes over church property, a civil court may engage in limited review so long as there is “no consideration of doctrinal matters, whether the ritual and liturgy or worship or the tenets of faith.” For example, civil courts can resolve church property disputes on the basis of “neutral principles of law” involving no inquiries into religious doctrine, polity, or practice. One authority has aptly summarized Jones and its antecedents as follows:

In short, civil authorities must always forego questions which are essentially religious as a matter of noninterference in the affairs of religious associations. Included in such matters are doctrine, discipline, appointment and removal of religious personnel, church polity, internal administration, and religious practice. In disputes principally over control of real estate, however, states may adopt a neutral principles of law approach so long as civil judges do not become entangled in questions essentially religious in the course of the rule’s application.145 C. Esbeck, Tort Claims Against Churches and Ecclesiastical Officers: The First Amendment Considerations, 89 W. Va. L. Rev. 22-23 (1986).

In summary, the United States Supreme Court over the past century has consistently held that the civil courts are prohibited from interfering in ecclesiastical controversies involving issues of ecclesiastical doctrine, polity, practice, or administration. Determinations of ecclesiastical organizations regarding the standards of church membership or the qualifications of clergy indisputably involve such intrinsically ecclesiastical concerns and accordingly are not reviewable by the civil courts. This is so even if an ecclesiastical determination results in an alleged deprivation of property, contract, or civil rights, and even if the ecclesiastical process was arbitrary in the sense that it was not in accordance with the church organization’s own internal rules and procedures.

While the Supreme Court has repudiated its 1928 ruling in Gonzalez to the extent that “arbitrariness” is no longer an available basis for civil court review of ecclesiastical determinations, it has left open “fraud” and “collusion” as possible grounds for review. However, the Court in Serbian severely limited the availability of “fraud and collusion” as grounds for civil court review by limiting their use to those occasions “when church tribunals act in bad faith for secular purposes.” The mere assertion of fraud or collusion thus cannot invoke civil court review of ecclesiastical determinations regarding church discipline. A plaintiff also must establish that the alleged fraud or collusion was motivated by “bad faith for secular purposes.” It would be extraordinary indeed to ever find a religious organization guilty of such conduct, and, understandably, none has ever been found to be so. The Supreme Court in United States v. Ballard,146322 U.S. 78 (1944). anticipating the Serbian limitation, specifically held that frauds perpetrated by religious organizations are not redressable by the civil courts when matters of “religious faith or experience” are involved or implicated. The Court observed:

Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer, are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.147 Id. at 86-87.

Similarly, no court has ever found an ecclesiastical organization guilty of the Serbian definition of “collusion.”

2. Decisions of State and Lower Federal Courts

State and lower federal courts have been asked to intervene in a wide variety of internal church disputes. Generally, such courts have followed the analysis developed by the United States Supreme Court in the cases summarized above. To be sure, some state and lower federal court decisions have deviated from the Supreme Court’s analysis, but such cases ordinarily can be explained on the ground that they preceded some of the key Supreme Court decisions. Many state and lower courts have deviated from the Supreme Court’s analysis because of unfamiliarity or ignorance.

Case studies

  • A Colorado court ruled that it was barred by the First Amendment from resolving a pastor’s lawsuit seeking additional compensation from his church on the basis of breach of contract.148 Jones v. Crestview Southern Baptist Church, 192 P.3d 571 (Colo. App. 2008).
  • A Texas court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a dismissed church member’s lawsuit accusing his former church of defamation, emotional distress, and defamation.149 293 S.W.3d 742 (Tex. App. 2009).
  • A District of Columbia court of appeals ruled that the First Amendment guaranty of religious freedom did not bar a pastor from suing her church for payment of the compensation the church had agreed to pay. The court observed: “In this case, we are satisfied that the First Amendment does not bar [the plaintiff] from pursuing her contract claim against the church. The record does not suggest that resolving her contract claim will require the court to entangle itself in church doctrine. Rather, the record shows that she entered into a year-long contract to serve as pastor of the church, that she completed her obligations under the contract, and that the church did not honor its promise to pay her. Consequently, the trial court should be able to resolve the claim by employing neutral principles of law.”150 Second Episcopal Dist. African Methodist Episcopal Church v. Prioleau, 49 A.3d 812 (D.C. 2012).
  • The Kentucky Supreme Court ruled that it was barred by the “ecclesiastical abstention doctrine” from resolving a lawsuit brought by dismissed board members of a church-affiliated agency challenging the legality of their dismissal.151St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727 (Ky. 2014).
  • A Minnesota court ruled that it was barred by the “ecclesiastical abstention” doctrine from resolving two church members’ claim that they had been defamed by statements made about them in a church disciplinary meeting.152 Pfeil v. St. Matthew Church, 2015 WL 134055 (Minn. App. 2015).
  • A Michigan court ruled that the “ecclesiastical abstention doctrine” prevented it from resolving claims arising from a pastor’s embezzlement of a large sum of church funds that would involve inquiries into church doctrine or polity.153Baptist Church v. Pearson, 872 N.W.2d 16 (Mich. App. 2015).
  • A Texas court ruled that the “ecclesiastical abstention” doctrine prevented it from resolving an internal church dispute regarding a church’s compliance with its bylaws in selecting a new pastor and dismissing several dissident members.154Moultin v. Baptist Church, 498 S.W.3d 143 (Tex. App. 2016).
  • A federal district court for the District of Columbia ruled that a pastor’s age discrimination claim against a denominational agency was barred by the “ministerial exception,” but the court could resolve the pastor’s claims of breach of contract, wrongful eviction, and defamation, so long as doing so would not implicate religious doctrine.155Gregorio v. Hoover, 238 F.Supp.3d 37 (D.D.C. 2017).

The response by state and lower federal courts to many of the more common forms of internal church dispute are discussed fully in other sections of this text. Examples include:

  • church property disputes following a schism within a local church;156See chapter 7, supra.
  • clergy dismissals;157See § 2-04, supra.
  • discipline and dismissal of church members;158See § 6-10, supra.
  • personal injuries resulting from the negligence or misconduct of church workers;159See chapter 10, infra.
  • sexual seduction of counselees by clergy;160See § 4-11, supra.
  • removal of officers and directors;161See § 6-06.4, supra.
  • procedural irregularities in church business meetings;162See § 6-12.4, supra.
  • access by members to church records;163See § 6-03.1, supra.
  • dismissal of church employees;164See § 8-22, supra.
  • clergy malpractice;165See § 4-05, supra.and
  • personal liability of officers and directors.166See § 6-07, supra.

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