Key point 6-10.02. According to the minority view, the civil courts may engage in “marginal review” of disputes involving the discipline of a church member, in a few limited circumstances if they can do so without inquiring into religious doctrine or polity. For example, a few courts have been willing to review membership dismissals in one or more of the following limited circumstances: (1) the church interfered with a member’s civil, contract, or property rights; (2) the disciplining body lacked authority to act; (3) the church failed to comply with its governing documents; (4) the church’s decision was based on fraud or collusion; or (5) interpretation of contested terminology in the church’s governing documents.
Some courts have been willing to intervene, in limited circumstances, in controversies regarding church membership determinations, if they can do so without interpreting church doctrine or polity. This section will review the following grounds for “marginal civil court review” most commonly cited by the courts:
- interference with civil, contract, or property rights
- the authority of the expelling body
- compliance with the church’s governing documents
- fraud or collusion
- contested terminology
- 1. INTERFERENCE WITH CIVIL, CONTRACT, OR PROPERTY RIGHTS
Although the civil courts generally acknowledge that they have no authority to review purely ecclesiastical matters, some courts have been willing to review the expulsion of a church member if the expulsion affects “civil, contract, or property rights” and does not implicate church doctrine.289 Baldonado v. Way of Salvation Church, 185 P.3d 913 (Hawaii App. 2008); Church of God in Christ, Inc. v. Stone, 452 F. Supp. 612 (D. Kan. 1976); Chavis v. Rowe, 459 A.2d 674 (N.J. 1983); African Methodist Episcopal Zion Church v. Union Chapel A.M.E. Zion Church, 308 S.E.2d 73 (N.C. App. 1983); First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983).The precise meaning of civil, contract, or property rights is unclear. Some courts interpret these terms broadly. To illustrate, one court concluded that church membership in itself constitutes a “property right” since church members comprise the body of persons entitled to the use and enjoyment of church properties, and therefore the courts have authority to review all expulsions of church members.290 Randolph v. First Baptist Church, 120 N.E.2d 485 (Ohio 1954).Another court concluded that civil rights are involved in the expulsion of church members because of “the humiliation and hurt to personality, the injury to character, reputation, feelings and personal rights and human dignity.”291 Id. at 489.Similarly, courts have concluded that (1) the expulsion of a member from a church can constitute a serious emotional deprivation which, when compared to some losses of property or contract rights, can be far more damaging to an individual; (2) the loss of the opportunity to worship in familiar surroundings is a valuable right that deserves the protection of the law; and (3) except in cases involving religious doctrine, there is no reason for treating religious organizations differently from other nonprofit organizations, whose membership expulsions are routinely reviewed by the courts.292 Baugh v. Thomas, 265 A.2d 675 (N.J. 1970).
Other courts take a much narrower view of civil, contract, or property rights. To illustrate, some courts have ruled that church membership in itself does not constitute a property right,293 Anderson v. Dowd, 485 S.E.2d 764 (Ga. 1997); Sapp v. Callaway, 69 S.E.2d 734 (Ga. 1952).a contract right,294 Cooper v. Bell, 106 S.W.2d 124 (Ky. 1937).or a civil right.295 Stewart v. Jarriel, 59 S.E.2d 368 (Ga. 1950). Accord Anderson v. Dowd, 485 S.E.2d 764 (Ga. 1997) (church membership “is not a property right”); Fowler v. Bailey, 844 P.2d 141 (Okla. 1992).
One thing is clear—if the civil courts are powerless to resolve internal church disputes involving doctrine or polity, then they should not be permitted to resolve church membership determinations that are essentially ecclesiastical in nature solely because an aggrieved member asserts that his or her discipline or dismissal violated a civil, contract, or property right. The Supreme Court has acknowledged this principle in the context of clergy dismissals. To illustrate, in 1928 the Supreme Court observed, in a case involving the authority of an ecclesiastical organization to discipline a minister, that “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.”296 Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16-17 (1928) (Justice Brandeis) (emphasis added).
In 1952, the Supreme Court in the Kedroff ruling297 Kedroff v. St. Nicholas Cathedral, 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 also noted that “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.”298 Id. (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 where “the property right follows as an incident from decisions of the church … on ecclesiastical issues.”
These two rulings indicate that dismissed or disciplined church members 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. It will be a rare case in which a disciplined or dismissed church member can demonstrate that his or her “civil, contract, or property rights” were violated by the church’s action in a manner that does implicate ecclesiastical concerns. As a result, this basis for marginal civil court review of church disciplinary decisions generally will fail. Further, it has no application to hierarchical churches due to the Supreme Court’s 1976 ruling in the Milivojevich case. Many of the court rulings that have recognized this basis for civil court review occurred prior to 1976.
Case study. 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.” Two dismissed church members challenged their dismissals in court on the ground that the church board did not have the authority to terminate their memberships. They acknowledged that the church bylaws authorized the church board to administer discipline, but claimed that the bylaws had never been adopted by the congregation. The court noted that the First Amendment does not prohibit the courts from resolving “property disputes” provided that this can be done “without resolving underlying controversies over religious doctrine.” The court concluded that the plaintiffs’ church membership was a property interest, and that the courts “do have jurisdiction over the very narrow issue of whether the bylaws were properly adopted by the church” since “this inquiry can be made without resolving any ecclesiastical or doctrinal matters.”299 Tubiolo v. Abundant Life Church, (N.C. App. 2004). See also Emory v. Jackson Chapel First Missionary Baptist Church, 598 S.E.2d 667 (N.C. App. 2004).
2. AUTHORITY OF EXPELLING BODY
Some courts have reviewed membership expulsions for the purpose of determining whether members were expelled by the body authorized to do so by the church charter or bylaws. Thus, when certain members of a church were expelled and sought judicial review of their expulsion, a court ruled, over the protests of the church, that it did have jurisdiction to determine whether the expulsions were the act of an authorized and duly constituted body.300 Brown v. Mt. Olive Baptist Church, 124 N.W.2d 445 (Iowa 1963).Another court, in agreeing to review a church’s expulsion of certain members, commented:
If a decision is reached by some body not having ecclesiastical jurisdiction over the matter, then the civil court would not be bound by that decision. … Once a determination is made that the proper ecclesiastical authority has acted in its duly constituted manner, no civil review of the substantive ecclesiastical matter may take place as this would be prohibited by Amendments I and XIV of the Federal Constitution. …301 Bowen v. Green, 272 S.E.2d 433, 435 (S.C. 1980).
A federal district court that generally agreed with the rule of judicial non-intervention in church membership determinations nevertheless concluded that “it is not beyond the scope of inquiry for a civil court to determine, in a proper proceeding, whether disciplinary action undertaken by [a church] was approved or executed by that body within the church required to take such action under the church covenant, constitution, or bylaws.”302 First Baptist Church v. State of Ohio, 591 F. Supp. 676, 683 (S.D. Ohio 1983).
Case Study. An Ohio court ruled that the First Amendment guaranty of religious freedom prevented it from resolving a dispute between a dismissed church member and his former church.303 Howard v. Covenant Apostolic Church, Inc., 705 N.E.2d 305 (Ohio App. 1998). Accord Tubiolo v. Abundant Life Church, (N.C. App. 2004).However, the court concluded that the civil courts retain jurisdiction “to determine whether the proper authority made the decision about church discipline or policy. … So long as the appropriate church authority has made the decision, the issue of whether the church followed its internal procedures is a matter of church governance and discipline into which a secular court is prohibited from inquiring.”
3. COMPLIANCE WITH CHURCH CHARTER AND BYLAWS
In 1872, the Supreme Court commented that “[church trustees] cannot be removed from their trusteeship by a minority of the church society or meeting, without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules.”304 Bouldin v. Alexander, 82 U.S. (15 Wall.) 131 (1872).In the years that followed, a number of civil courts intervened in church membership determinations to ensure that they were in compliance with a church’s charter or bylaws. However, this basis for intervening in such disputes came to an abrupt halt in 1976, at least with respect to hierarchical churches, when the Supreme Court announced:
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. …305 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976).
The Court added that “recognition of … an arbitrariness exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry.”306 Id.
Since 1976, a few courts have intervened in the membership determinations of congregational churches to determine whether church rules were followed. For example, where former church members complained that they had been removed improperly from the membership roll at a church meeting convened off of church premises without notice to them of either the location of the meeting or the fact that their dismissal would be discussed, a court concluded that it did have jurisdiction to determine whether the members were expelled in accordance with the charter and bylaws of the church.307 Konkel v. Metropolitan Baptist Church, Inc., 572 P.2d 99 (Ariz. 1977); LeBlanc v. Davis, 432 So.2d 239 (La. 1983); Wilkerson v. Battiste, 393 So.2d 195 (La. App. 1980).The court cautioned, however, that if the church had complied with its charter and bylaws, the court would have no jurisdiction to proceed in its review.
Expelled church members’ allegations that their expulsions deviated from established church procedures have also been reviewed by the courts in the following contexts: (1) members who allegedly were ineligible to vote according to church bylaws were permitted to vote for the expulsion of certain members;308 Anderson v. Sills, 265 A.2d 678 (N.J. 1970).(2) a pastor conducted a church meeting without prior notice, and, without a hearing of any kind, members present voted to expel an opposing faction from membership;309 Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746 (Ala. 1976); Longmeyer v. Payne, 205 S.W.2d 263 (Mo. 1947); Randolph v. First Baptist Church, 120 N.E.2d 485 (Ohio 1954); First Baptist Church v. Giles, 219 S.W.2d 498 (Tex. 1949).and (3) members present at a special meeting for which no prior notice had been given voted to summarily expel all members of the church who identified themselves, through attendance or support, with any other church.310 David v. Carter, 222 S.W.2d 900 (Tex. 1949).
Most of the court rulings recognizing noncompliance by a church with its own internal rules as a basis for civil court review either predate the Supreme Court’s 1976 ruling in the Milivojevich case, or involve congregational churches. Clearly, the civil courts no longer have the authority, since 1976, to review the membership determinations of hierarchical churches on the basis of alleged noncompliance with internal church rules. And, some courts view the constitutional analysis set forth in the Milivojevich ruling to be applicable to congregational as well as hierarchical churches.311 See, e.g., Burgess v. Rock Creek Baptist Church, 734 F. Supp. 30 (D.D.C. 1990); First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983).
Case study. The Kansas Supreme Court ruled that the civil courts have limited authority to review decisions by congregational churches to discipline or dismiss members. The court concluded: “A congregational church member has a right under common law principles to a fairly conducted meeting on the question of expulsion, and that includes reasonable notice, the right to attend and speak against the proposed action, and the right to an honest count of the vote. In the absence of church law or usage, a majority vote of the members present at a regular Sunday service prevails on expulsion. It does not require formal evidence, the right to counsel, or the right to present witnesses (unless church rules so require).” Since the dismissed members claimed that their expulsions violated their property interests (they had made substantial contributions to the church over many years), and since the church allegedly did not provide them with adequate notice or the right to defend themselves, the civil courts were justified in intervening. This intervention, however, would be limited to a determination of whether or not their allegations were true. If their expulsions violated “fundamental notions of due process,” then they were not legally valid, meaning that they were still members who could not summarily be denied the legal right to demand an accounting of church funds.312 Kennedy v. Gray, 807 P.2d 670 (Kan. 1991).
4. EXPULSION BASED ON FRAUD OR COLLUSION
In 1928, the United States Supreme Court ruled that “in the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical … are accepted in litigation before secular courts as conclusive. …”313 Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1928).However, in 1976 the Court held that ecclesiastical determinations could not be reviewed on account of “arbitrariness,” and refused to decide whether or not “fraud” or “collusion” remained permissible grounds for civil court review.314 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The Court did not pass upon the constitutionality of marginal civil court review of ecclesiastical determinations in cases of fraud or collusion. This remains an open question.The Court observed: “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 exists.” Accordingly, “fraud” and “collusion” may constitute grounds for civil court review of internal church determinations regarding membership. That is all that can be said until the Supreme Court provides more guidance.
Some courts have intervened in internal church controversies regarding membership determinations on the basis of fraud or collusion.315 First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983) (noting that the “higher burden of proof typically applied to cases of fraud” is applicable); Hatcher v. South Carolina District Council of the Assemblies of God, Inc., 226 S.E.2d 253 (S.C. 1976); Presbytery of the Covenant v. First Presbyterian Church, 552 S.W.2d 865 (Tex. 1977).There are three points to emphasize, however. First, the Supreme Court has expressly refrained from ruling on the viability of civil court review based on fraud or collusion. Second, the higher burden of proof normally required to establish fraud (i.e., clear and convincing evidence) may apply.316 First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983).And third, in 1976 the Supreme Court interpreted “fraud” or “collusion” to imply church actions that are committed “in bad faith for secular purposes.” Certainly, it is highly unlikely that any aggrieved member could prove facts satisfying this definition, particularly if the “clear and convincing evidence” standard applies.
5. INTERPRETATION OF CONTESTED TERMINOLOGY
Occasionally a court will agree to review an expulsion based on an ambiguous condition of membership. For example, when a church’s bylaws stipulated that failure to attend church or make financial contributions “without a reasonable excuse” would result in termination of membership, a court agreed to resolve the disputed phrase “without a reasonable excuse.”317 Second Baptist Church v. Mount Zion Baptist Church, 466 P.2d 212 (Nev. 1970).Another court agreed to determine whether a church’s charter or bylaws made “extending the right hand of fellowship” a condition of membership where this was a disputed question.318 Honey Creek Regular Baptist Church v. Wilson, 92 N.E.2d 419 (Ohio 1950).
Most courts have concluded that churches must interpret their own internal rules regarding membership qualifications and expulsions. In the landmark Watson case,319 Watson v. Jones, 80 U.S. 679 (1871).the Supreme Court observed that “the right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members … is unquestioned.” The Court also observed in Watson that:
Each [religious organization] … 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.320 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.321 Id. at 732.
In 1952, the Supreme Court ruled that the First Amendment guaranty of religious freedom gives religious organizations “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.”322 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).Further, the Supreme Court’s prohibition of civil court interpretation of church doctrine will serve as an additional bar to civil court interpretation of many contested terms contained in church bylaws.323 Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969).