Article Church Prop

a heretical belief system, is the secular court to decide as a matter of fact and law which of two competing religious views is “heretical” vis a’ vis that religious body? Is such engagement permitted by U.S. Constitutional jurisprudence? If so, is such judicial intervention unbridled, or subject to Constitutional parameters, or simply prohibited?

The Supreme Court has considered these questions and issues on some dozen or so occasions. [6] The result is an anomalous body of Supreme Court jurisprudence wherein there exist two separate, but equally permissible rules of Constitutional jurisprudence. This article considers these cases seriatim, and then summarizes the current rules or approaches that may be utilized in dealing with church property disputes. It also delves lightly into the realm of prognostication given the current Court membership. Of course, it should be remembered that there are hundreds of state and federal cases which have also dealt with church property disputes. So, research into this field also requires identifying and understanding the relevant authorities from this larger body of law.

I. Supreme Court Consideration of Church Property Disputes

A. General Common Law

1. Watson v. Jones.

The first Supreme Court foray into the jurisprudence of church property disputes remains the touchstone for such litigation in the Third Millennium. While it may be said that such contemporary referencing is more by way of form than substance, a decision that otherwise could have been at best an historical footnote is elevated by subsequent Court opinions to penultimate status in this area of Constitutional jurisprudence. Our discussion of subsequent opinions will highlight the transformation of this pre-Erie Co. v. Tompkins [7] decision based on general common-law principles into one of today’s available analytical approaches. [8]

Watson v. Jones [9] tracks the tortuous trek of a post civil war division in a Presbyterian Church in Louisville, Kentucky. The underlying cause of the division was a direction from the General Assembly of the Presbyterian Church to the Presbyteries, the Board of Missions, and to the Sessions of the churches which required any person from the Southern States seeking membership, employment as missionary, or ministers of the church to repent and forsake their sins if any had voluntarily aided the war of the rebellion, or held the doctrine of a faction of the Presbyterian Church which supported slavery. Members of the Third or Walnut Street Presbyterian Church of Louisville, Kentucky split on this direction from the General Assembly, resulting in two groups each claiming the right to use and possession of the church property. [10]

The Court determined that the Presbyterian Church in the United States is a voluntary religious organization. It has a written Confession of Faith, Form of Government, Book of Discipline, and Directory for Worship. Its government is exercised by and through an ascending series of judicatories. The General Assembly, through its hierarchy, recognized the majority faction of the Walnut Street Church as the congregation in communion with it. The other faction asserted its claims under Kentucky property and trust laws. The Supreme Court ruled in favor of the majority faction by deferring to the prior rulings of the Presbyterian Church and its judicatories. [11]

In reaching its decision, the Court classified cases concerning the rights to property held by ecclesiastic bodies into three groups:

1. The property is devoted to the teaching, support, or spread of some specific form of religious doctrine or belief by the express language of the deed, will, or other instrument by which the property is held.

2. The property is held by a religious congregation which is strictly independent of other ecclesiastic associations, and owes no fealty or obligation to any higher authority.

3. The property is held by a religious congregation or ecclesiastic body that is a subordinate member of a general church organization which has superior ecclesiastic tribunals with a general and ultimate power of control over the whole membership of that general organization. [12]

The Court opined as to the appropriate role for the civil courts in all three classifications. However, the matter actually before the Court concerned the third classification. Thus, the Court's view as to the first two classifications is dicta, i.e., not the law of the case or necessarily controlling in future cases. Following are excerpts of the Court's discussion of the three classifications.

1. [T]hough the task may be a delicate one and a difficult one, it will be the duty of the court in such cases, when the doctrine to be taught or the form of worship to be used is definitely and clearly laid down, to inquire whether the party accused of violating the [express language of the deed, will, or other instrument by which the property is held] is holding or teaching a different doctrine, or using a form of worship which is so far variant as to defeat the declared objects of the [express language of the deed, will, or other instrument by which the property is held].

2. In such cases where there is a schism which leads to a separation into distinct and conflicting bodies, the rights of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations. *** This ruling admits of no inquiry into the existing religious opinions of those who comprise the legal or regular organization; for, if such was permitted, a very small minority, without any officers of the church among them, might be found to be the only faithful supporters of the religious dogmas of the founders of the church. There being no such trust imposed upon the property when purchased or given, the court will not imply one for the purpose of expelling from its use those who by regular succession and order constitute the church, because they may have changed in some respect their views of religious truth.

3. In this class of cases we think the rule of action which should govern the civil courts, founded in the broad and sound view of the relations of church and state under our system of laws, and supported by the preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastic rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. **** In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. 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 ecclesiastic government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with the implied consent to this government, and are bound to submit to it. [13]

From this opinion has emerged what is variously known as the Watson rule, or compulsory deference. In essence, secular courts dealing with church property disputes involving hierarchical religious bodies must defer to, and enforce as applicable, decisions by the highest judicatories of such religious bodies as have considered the relevant controversy.

2. Bouldin v. Alexander

The year following the Watson decision saw the next excursion into the arena of church property disputes by the Court. Surprisingly however, Bouldin v. Alexander [14] never mentioned the prior Term’s opinion in Watson. In any event, this controversy revolved around the use and occupancy of the real property of a congregational Baptist church in the District of Columbia. The founding pastor of this church and a minority of the church membership, after a falling out with the majority of the congregation, ostensibly removed without cause or notice four of the seven trustees who held title to the church property. This minority faction also “excommunicated” the majority membership of the congregation. [15] The Court viewed its task succinctly:

This is not a question of membership of the church, nor of the rights of members as such. It may be conceded that we have no power to revise or question ordinary acts of church discipline, or of excision from membership. We have only to do with rights of property. ….We must take the fact of excommunication as conclusive proof that the persons exscinded are not members. But we may inquire whether the resolution of expulsion was the act of the church, or of persons who were not the church and who consequently had no right to excommunicate others. [16]

The Court went on to rule that in congregational churches, the majority – assuming adherence to organization and doctrines – represents the church. It concluded: “[a]n expulsion of the majority by a minority is a void act.” [17] In rendering its decision, the Court cited nary a single precedent.

3. Helm v. Zarecor.

The first post-Watson foray of the Supreme Court which cited Watson is Helm v. Zarecor [18] wherein the Court considered a procedural decision dismissing an action for lack of jurisdiction, i.e., complete diversity. At issue was a claim brought by clergy, elders, and laymen of the Presbyterian Church in the United States of America individually and on behalf of all members of the Church. Defendants were named individuals alleged to be representing their own interests, as well as those of the membership of Cumberland Presbyterian Church, and The Board of Publication of the Cumberland Presbyterian Church. All plaintiffs were citizens of states other than Tennessee. All defendants, including The Board of Publication of the Cumberland Presbyterian Church, a Tennessee corporation, were citizens of Tennessee.

The controversy at issue arose from the merger of two previously independent religious organizations, the Cumberland Presbyterian Church and the Presbyterian Church in the United States of America. The Board of Publication was established before the merger as the publishing arm of the Cumberland Presbyterian Church and owned substantial assets. Organizationally, the officers and managers of the Board of Publication were appointed by the highest judicatory body of the Cumberland Presbyterian Church, its General Assembly. The defendants, alleged to be a minority number of clergy and laity from the Cumberland Presbyterian Church, did not accept the validity of the 1906 merger, whereas the plaintiffs asserted that the union was valid and, consequently, the Board of Publication held its assets in trust for the Presbyterian Church in the United States of America. [19] The post-merger managers of the Board of Publication agreed that it was now an institution of the Presbyterian Church in the United States of America. The defendants, after the merger, reconstituted the Cumberland Presbyterian Church and its General Assembly, declared all positions at the Board of Publication vacant, and elected its own control group of the Board of Publication. [20]

The litigation sought a decree that the Board of Publication held its assets in trust for the Presbyterian Church in the United States of America, and that the members of the Board elected by the Presbyterian Church in the United States of America constitute the lawful membership of the Board. [21]

After denying a variety of preliminary motions by the defendants, the lower court on its own motion dismissed the complaint for lack of complete diversity. In rendering this decision, it held that defendant Board of Publication “was not antagonistic to the complainants, and should be aligned upon the same side of the controversy with the complainants…” [22] In reversing this ruling, the Supreme Court stated: “To align the corporation itself with the complainants is virtually to decide the merits in their favor. The Board is simply a title holder [23] , -- an instrumentality, the mastery of which is in dispute.” [24]

The Court noted that the actual dispute was not limited to membership on the Board or the rights of a particular corporation. Rather “[i]t embraces the fundamental question of the rights of these religious associations,…, to use and control the corporate agency.” [25]

Helm v. Zarecor, as well as the referenced portion of Watson v. Jones, appear to teach us that mere corporate formalities will not suffice to resolve underlying religious denominational issues such as schism and its impact on control of religious property. However, this teaching is at best called into doubt [26] by the subsequent adoption by the Supreme Court of the neutral-principles of law approach [27] as permissible in resolving church property disputes.

4. Shepard v. Barkley.

The second visit of the merger between the Presbyterian Church of the United States of America and the Cumberland Presbyterian Church to the Supreme Court was in Shepard v. Barkley [28] . That brief Memorandum Opinion affirmed the lower courts’ entering decrees in favor of complainant Presbyterian Church of the United States of America. In rendering its decision, the Court commented:

… the court is of opinion that the doctrines by which the case is controlled have been so affirmatively and conclusively settled by a prior decision of this court as to cause it to be unnecessary as a matter of original consideration to restate them. Watson v. Jones, 13 Wall. 679. And the want of any possible reason for removing this case from the control of the doctrines of the Watson Case is, if needs be, conclusively shown by the many cases referred to by the court below in its opinion, in which the Watson Case was made controlling and decisive as to controversies not in substance differing from the one here presented. [29

5. Gonzalez v. Roman Catholic Archbishop of Manila.

Gonzalez v. Roman Catholic Archbishop of Manila [30] directly addressed a situation in which the application of secular law would probably have yielded a different result than deference to canon law. At issue was a vacant collative chaplaincy [31] in the Roman Catholic Archdiocese on Manila. The chaplaincy was established in 1820 pursuant to a will, and the requisite ecclesiastical decree provided for its approval. The will provided that the chaplaincy should be held by testatrix’s nearest relative. From 1820 until 1910, the chaplaincy was so occupied. [32] However, in December 1910 the chaplaincy was renounced by its then current holder who thereafter married and, in 1912, father the petitioner in the instant case. In 1922, this male son of the fifth chaplain was presented to the archbishop for appointment to the vacant collative chaplaincy. The archbishop declined, referencing the then applicable Code of Canon Law requirement for theological education prior to any such appointment. [33]

Petitioner asserted that his appointment to the chaplaincy was to be governed by the canon law in effect in 1820, not that which became effective when he was presented for the chaplaincy in 1922. On the other hand, respondent archbishop asserted that by virtue of the property of the chaplaincy having been conveyed to the spiritual authorities, the secular courts lacked subject matter jurisdiction. Relying on the authority of Watson v. Jones [34] , Mr. Justice Brandeis, affirming the ruling of Supreme Court of the Philippine Islands in favor of the archbishop and writing for a unanimous court, held:

The fact that the property of the chaplaincy was transferred to the spiritual properties of the archbishopric affects not the jurisdiction of the court, but the terms of the trust. The archbishop's claim in this respect is that by an implied term of the gift, the property, which was to be held by the church, should be administered in such manner and by such persons as may be prescribed by the church from time to time. Among the church's laws, which are thus claimed to be applicable, are those creating tribunals for the determination of ecclesiastical controversies. Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain 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 in interest made them so by contract or otherwise. (citations omitted, emphasis added) [35]

So we have, consistent with Watson v. Jones, two rules thus established. First, secular courts do possess subject matter jurisdiction over church property disputes. Second, such secular courts, absent fraud, collusion, or arbitrariness [36] , must accept the decisions of “proper church tribunals … as conclusive.” It should also be noted that, up to this point in our discussion, none of the opinions has engaged in a constitutional analysis, nor relied on the Constitution or any of its amendments as the basis for its decision.

B. Constitutional Law Decisions

1. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America.

The dispute in Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America [37] began with an ejectment action seeking possession and control of the New York cathedral of the Russian Orthodox Church in North America. The elected head of the American churches affiliated with the Russian Orthodox Church, sought ejectment of the archbishop appointed by “the Supreme Church Authority of the Russian Orthodox Church.” [38] The issue was framed by the Court as:

"Determination of the right to use and occupy Saint Nicholas depends upon whether the appointment of Benjamin by the Patriarch or the election of the Archbishop for North America by the convention of the American churches validly selects the ruling hierarch for the American churches. [39]

A New York statute [40] provided for the establishment of an administratively autonomous district consisting of those New York churches formerly subject to the administrative control of the Patriarch of Moscow. Benjamin, the Patriarch’s appointee, contended that this New York statute violated the Fourteenth Amendment to the Constitution and thus could not be utilized for resolution of the instant controversy. [41] More precisely, Article 5-C was alleged to be proscribed by the First Amendment to the Constitution which precluded governmental interference with the exercise of religion. The corollary argument was that the Fourteenth Amendment made applicable to the states this First Amendment protection. [42]

For the first time, the Court was to resolve an issue involving a church property dispute by directly referencing the Constitution. Preliminarily, the Court found that:

From those circumstances [43] it seems clear that the Russian Orthodox Church was, until the Russian revolution, an hierarchical church with unquestioned paramount jurisdiction in the governing body in Russia over the American Metropolitanate. Nothing indicates that either the Sacred Synod or the succeeding Patriarchs relinquished that authority or recognized the autonomy of the American church. [44]

Having established the hierarchical nature of the Russian Orthodox Church, the Court determined that the New York statute [45] transferred control of the New York churches from the hierarchy of the Russian Orthodox Church to the governing judicatories of the Russian Orthodox Church in America. It then held that “[s]uch a law violates the Fourteenth Amendment. It prohibits in this country the free exercise of religion.” [46] The Court goes on to note that “[h]ere there is a transfer by statute of control over churches. This violates our rule of separation between church and state. That conclusion results from the purpose, meaning and effect of the New York legislation….” [47]

After extensive discussion and reaffirmation of the jurisprudence of Watson v. Jones [48] , the Court further discussed the constitutional infirmities of New York’s Article 5-C. In this elaboration it stated:

By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment. …. New York’s Article 5-C directly prohibits the free exercise of an ecclesiastical right, the Church’s choice of its hierarchy. [49]

In reversing the Court of Appeals of New York, the Court recognized that, as in the case before it, the use and control of property may be dictated by the purely ecclesiastical decisions of hierarchical church judicatories. Clearly, pure property questions are beyond the jurisdiction of such church judicatories. However, “[e]ven in those cases when the property right follows as an incident from the 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.” [50]

In Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America [51] we have Watson v. Jones elevated to a position of constitutional jurisprudence, and the rules of judicial deference to church judicatories, as well as legislative preemption from internal church interference, given constitutional protection via the First and Fourteenth Amendments. [52]

2. Kreshik v. Saint Nicholas Cathedral.

While Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America [53] clearly established the rule that legislative action which impinges internal church governance is contrary to constitutional proscriptions, it remained for the Court in Kreshik v. Saint Nicholas Cathedral [54] to extend this rule to judicial action. At issue in this matter was Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America [55] after remand and retrial. The New York Court of Appeals in the remanded proceeding again ruled in favor of the New York church, holding that the Russian Patriarch was dominated by secular authority and thus, under New York common law, unable to validly exercise the right to occupy the Cathedral. In a Per Curiam opinion again reversing the New York court, the Supreme Court held that “it is established doctrine that ‘(i)t is not of moment that the State has here acted solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.’ N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 463.” [56]

So, neither state legislative nor judicial action may interfere with the judicatory decisions of a hierarchical church. For any such state action is contrary to the dictates of the First and Fourteenth Amendments.

3. Presbyterian Church in the United States v. Mary Elizabeth Blue Hill Memorial Presbyterian Church.

Presbyterian Church in the United States v. Mary Elizabeth Blue Hill Memorial Presbyterian Church [57] involved an action brought by the local churches seeking to prohibit the national church from entering local church property. The controversy arose when two local churches in Savannah, Georgia voted to withdraw from the hierarchical Presbyterian Church in the United States. The schism was grounded in certain national church action which was viewed by the local churches as contrary to the doctrine and practice in force when the local churches initially affiliated with the national church. [58] After unsuccessful attempts at reconciliation, the national church acknowledged the withdrawal of the local leadership, and moved to assume control of the local church property. [59]

The local churches filed an action in Georgia state court seeking to enjoin the national church from trespassing on the local church property. The litigation was brought under Georgia law wherein “the right to the property previously used by the local churches was made to turn on a civil court jury decision as to whether the general church abandoned or departed from the tenets of faith and practice it held at the time the local churches affiliated with it.” [60] The theory was that Georgia law implied a trust on local church property in favor of the hierarchical church, conditioned upon adherence by that hierarchical body to the “tenets of faith and practice existing at the time of affiliation by the local churches.” [61]

The Supreme Court reversed the Georgia courts decision in favor of the local churches. In so doing, it held that this so-called departure-from-doctrine element of the Georgia implied trust theory was contrary to the First and Fourteenth Amendments in that:

[it] requires the civil court to determine matters at the very core of a religion – the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role. [62]

However, it also commented:

Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which property is awarded. But 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. [63]

Mr. Justice Harlan echoed this comment in his concurrence:

"I do not, however, read the Court's opinion to go further to hold that the Fourteenth Amendment forbids civilian courts from enforcing a deed or will which expressly and clearly lays down conditions limiting a religious organization's use of the property which is granted. If, for example, the donor expressly gives his church some money on the condition that the church never ordain a woman as a minister or elder, see ante, at 442, n. 1, or never amend certain specified articles of the Confession of Faith, he is entitled to his money back if the condition is not fulfilled. In such a case, the church should not be permitted to keep the property simply because church authorities have determined that the doctrinal innovation is justified by the faith's basic principles. Cf. Watson v. Jones, 13 Wall. 679, 722--724, (1872). [64]

Thus, while neutral principles of law may be used by state courts to determine church property disputes, matters relating to the internal belief systems of any such hierarchical religion may not be adjudicated by the secular courts. However, express conditional language in a document of conveyance of property to a church may possibly be enforced by the secular courts.

4. Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg.

Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg [65] involved an action by a regional church seeking to prevent local churches from withdrawing their property from such regional church. In a Per Curiam opinion, the Court agreed with the regional church that no constitutional question was presented, and ruled that “[s]ince, however, the Maryland court’s resolution of the dispute involved no inquiry into religious doctrine, [the regional church’s] motion to dismiss is granted, and the appeal is dismissed for want of a substantial federal question.” [66]

Yet the most notable aspect of this case is the Concurring Opinion by Justice Brennan, in which Justices Douglas and Marshall joined. In it, Justice Brennan proposes an analytical formula within which all church property disputes should reside. His formula consists of three steps, either one or more of which may be adopted by the states for resolution of church property disputes [67] :

1. Watson v. Jones. States may follow this rule of deferring to, and enforcing the property decisions made by either (a) a majority of the members of a congregational polity, or (b) the highest judicatory of an hierarchical religious body that has ruled on the dispute. The foregoing are limited by situations in which express terms of documents of title establish contrary conditions, in which case the express terms control. However, use of this approach is not appropriate where resolution of doctrinal or religious policy issues is requisite to ascertaining the appropriate judicatory body. [68]

2. Neutral Principles of Law. The use of generally applicable neutral principles of state law may be used to resolve church property disputes. This “formal title” approach requires secular courts to ascertain ownership by reference to deeds, reverter clauses, general corporate law, and other general principles of state law. But, the use of this approach is inappropriate when it requires the civil courts to resolve doctrinal issues. [69]

3. State Statutes. This third dispute resolution framework envisions the enactment of special state statutes addressing church property disputes and establishing a resolution mechanism. However, any such mechanism must avoid interference with doctrinal matters or the ecclesiastical polity. [70]

While components of Justice Brennan’s framework reside in several of the cases discussed in this article, it has never been accepted as such by a majority of the Court.

5. Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich.

This case, Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich [71] , presents a classic example of secular court involvement in internal church governance which is prohibited by the First and Fourteenth Amendments. It also results in the elimination of a long-standing exception to the rule of deference to the decisions of church judicatories, and may have laid the foundation for the ultimate demise of the Watson Rule. [72]

The controversy related to a reorganization of the North American component of the Serbian Orthodox Church, and the bishop of the North American churches who disagreed with that reorganization. From this humble controversy [73] , the trial, appellate, and supreme courts of Illinois engaged in trials, appeals, remands, and the determination of a variety of procedural and substantive issues concerning Serbian Orthodox ecclesiastical and canon law over the course of several years. In essence, the Illinois courts reversed the defrockment of the bishop and reinstated him as diocesan bishop, and determined that the diocesan reorganization was invalid. These due to arbitrariness and lack of Serbian Orthodox Church authority as executed, respectively. [74]

With regard to the former, Mr. Justice Brennan, writing for a nonunanimous Court [75] , identified the prime issue not as one of church property ownership, but rather a controversy over who is the duly consecrated and acting bishop of the North American churches. As such:

The fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals of this hierarchical church upon the issues in dispute, and impermissibly substitutes its own inquiry into church polity and resolutions based thereon of those disputes. [76]

The opinion went on to narrow the “fraud, collusion, or arbitrariness” exception to the Watson rule by eliminating arbitrariness as a basis for secular court review. In so doing, the Court said:

The conclusion of the Illinois Supreme Court that the decisions of the Mother Church were "arbitrary" was grounded upon an inquiry that persuaded the Illinois Supreme Court that the Mother Church 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 requires the church judicatory to follow, or else in to the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them. Watson itself requires our conclusion in its rejection of the analogous argument that ecclesiastical decisions of the highest church judicatories need only be accepted if the subject matter of the dispute is within their "jurisdiction." [77]

Regarding the issue of diocesan structure and organization, the Court commented on the lower court decision thusly:

This conclusion was not, however, explicitly based on the "fraud, collusion, or arbitrariness" exception. Rather, the Illinois Supreme Court relied on purported "neutral principles" for resolving property disputes which would "not in any way entangle this court in the determination of theological or doctrinal matters." Nevertheless the Supreme Court of Illinois substituted its interpretation of the Diocesan and Mother Church constitutions for that of the highest ecclesiastical tribunals in which church law vests authority to make that interpretation. This the First and Fourteenth Amendments forbid. [78]

The Court concluded its opinion by summarizing the constitutionally permissible action of hierarchical religious bodies, and the concomitant limitations thereby imposed on secular courts.

In short, 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. [79]

The Watson rule, i.e., secular court deference to the decisions of religious body judicatories, subject only to the now limited exceptions of fraud and collusion, and the ever present neutral principles of state law analytical option remain as constitutionally permissible devices for addressing church property disputes. Must one yield to another? That question is addressed in the next case considered.

6. Jones v. Wolf.

In Jones v. Wolf [80] the Court confronted the question of whether a state may forego the Watson Rule in favor of the application of neutral principles of state law in church property disputes. Writing for a 5-4 majority, Mr. Justice Blackmun succinctly framed the issue:

This case involves a dispute over the ownership of church property following a schism in a local church affiliated with a hierarchical church organization. The question for decision is whether civil courts, consistent with the First and Fourteenth Amendments to the Constitution, may resolve the dispute on the basis of "neutral principles of law," or whether they must defer to the resolution of an authoritative tribunal of the hierarchical church. [81]

In the instant case, the Georgia courts reviewed the deeds, which conveyed title to the local church, as well as the applicable state statutes, organizational charters, and constitution of the general church, none of which created an express trust in favor of the general church. The court then ruled that legal title was with the local church and vested in the local congregation. Without further analysis, the Georgia court held that the local congregation was controlled by the majority faction of that local congregation. [82]

The question presented was which faction of the local church is entitled to the use and occupancy of the church property. The general church favored, and ultimately ruled internally that the minority faction of the local church was entitled to the use and occupancy of the property. The majority of the congregation had split from the general church and asserted its right to the use and occupancy thereof. So, if the Watson rule had constitutional preference over the neutral principles of law rule, the Georgia courts would be required to defer to the general church, and enforce its decision in favor of the minority faction. However, if either of the two rules were permitted by the Constitution, then Georgia’s selection of the neutral principles of law approach over the Watson rule’s deference to judicatories of hierarchical churches is permissible, and the majority faction prevails if such a “majority rules” doctrine is part of Georgia’s body of neutral state law principles.

The majority opted for the later approach: “We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy in involved.” [83] In responding to the dissent, the Court went on to say:

This argument assumes that the neutral-principles method would somehow frustrate the free-exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral-principles approach cannot be said to “inhibit” the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. [84]

The dissent [85] urged a rule of compulsory deference in maters involving schism within an hierarchical church, such that the decision of the judicatory of the religious body would establish which faction was rightfully in control of the local church structure, i.e., governing body. This approach, the dissent argued, is mandated by the First and Fourteenth Amendments to the extent that the application of neutral-principles of law is contrary to these Constitutional requirements. [86]

However, as the law now exists, a state may adopt either the Watson Rule, or the neutral-principles of law approach.

7. Synanon Foundation, Inc. v. California.

In Synanon Foundation, Inc. v. California [87] Mr. Justice Rehnquist, as Circuit Justice, denied an application seeking to stay the order of the District Court denying applicants request for a preliminary injunction to prohibit the Attorney General of the State of California from commencing state court proceedings against applicants. In rejecting applicants contention that as a church they were entitled to protections and treatment different from those afforded other charitable trusts, Mr. Justice Rehnquist underscored the vitality of Jones v. Wolf and stated: “…we held only last Term that state courts might resolve property disputes in which hierarchical church organizations were involved in accordance with ‘neutral principles’ of state law.” [88]

8. Little v. First Baptist Church, Crestwood.

Little v. First Baptist Church, Crestwood [89] was the denial of a petition for a writ of certiorari from which Justices Marshall and Brennan dissented. At issue was a congregational church which allegedly had voted to terminate its pastor. Certain members of the congregation filed an action seeking to enjoin the former pastor from entering the church premises. The pastor contested the members authority to speak on behalf of the congregation. The trial court, based solely on the pleadings, appointed a commissioner to hold an election of the congregation, which election confirmed that a majority of the membership had in fact voted to terminate the pastor. Justices Marshall and Brennan thought that the matter should have been reviewed by the Court because, as they read the record, the trial court “imposed its own view of proper procedures on the congregation’s decisionmaking.” [90]

Along the way, Mr. Justice Marshall succinctly summarized much of the current state of the law concerning church property disputes.

Because religious organizations may own property and enter into contracts, it is inevitable that they will become involved in legal disputes. However, where the use of property or the terms of contracts necessitate reference to ecclesiastical principles or authority, courts must exercise extreme care to avoid taking sides on matters of religious belief. This Court set down the basic framework for such situations over 100 years ago, in Watson. Although it has undergone some refinements, see, e.g., Jones v. Wolf, 443 U.S. 595 (1979), the Watson approach is simple. A court may apply neutral principles of secular law to the dispute at hand. When that process requires a court to determine the validity of a church decision, the court ordinarily must discern from the relevant canonical law what body is authorized to make a particular decision within the church, and what decision that body has reached. Having done so, the court may not inquire whether the decision was made arbitrarily or whether it conflicts with the ecclesiastical precepts of the organization. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); Maryland and Virginia Eldership v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368 (1970) (BRENNAN, J., concurring). [91]

II. Current State of the Law of Church Property Disputes

So what have we learned from our trip through these various opinions? What are the broad rules and limitations which guide consideration of any church property dispute? The following points summarize our current state of knowledge.

Ø The courts have subject matter jurisdiction over an otherwise justiciable case or controversy involving church property disputes

Ø Neither state legislative nor judicial action may interfere in ecclesiastical issues such that the state essentially substitutes its decision for that of a religious body.

Ø States may adopt a rule of law whereby secular courts must defer to, and enforce the rulings of the judicatories of hierarchical churches, or the equivalent decision making process of a congregational church.

Ø States may adopt a rule of law whereby secular courts apply neutral-principles of law in resolving church property disputes.

Ø Secular courts are not required to defer to the rulings of church judicatories when such rulings are based on fraud or collusion motivated by seeking secular benefit.

Ø Secular courts may enforce explicit language and conditions contained in property transfer instruments, such as deeds, wills, and trusts. However, the law is uncertain as to the enforceability of such provisions wherein religious doctrine, faith, or practice are involved.

III. The Future Vitality of the Watson Rule

At first blush the current state of Constitutional law on matters of church property disputes in secular courts appears to be a choice of two separate but equal rules, viz.

(1) compelled deference to hierarchical church judicatories, or

(2) neutral-principles of state law.

But let us not so willingly accept the obvious as the end of the story. Rather, let us view current Court membership and its voting on key cases to see if a future trend may be discerned.

Justice/Decision	Yr. Appt.	Serbian v. Milivojevich (1976)	Jones v. Wolf (1979)	Synanon v. California (1979)	Little v. First Baptist (1986)
C. J. Rehnquist	1972	Dissent	Majority	Decision	Deny Cert.
Justice Stevens	1975	Dissent	Majority	n/a	Deny Cert.
Justice O’Connor	1981	Not on Court	Not on Court	n/a	Deny Cert.
Justice Scalia	1986	Not on Court	Not on Court	n/a	Deny Cert.
Justice Kennedy	1988	Not on Court	Not on Court	n/a	Not on Court
Justice Souter	1990	Not on Court	Not on Court	n/a	Not on Court
Justice Thomas	1991	Not on Court	Not on Court	n/a	Not on Court
Justice Ginsberg	1993	Not on Court	Not on Court	n/a	Not on Court
Justice Breyer	1994	Not on Court	Not on court	n/a	Not on Court

Of the current Court membership, five have never voted on a church property dispute in secular court. Two have only voted to deny a petition for certiorari. The remaining two, Mr. Chief Justice Rehnquist and Mr. Justice Stevens have consistently voted in favor of the neutral-principles of state law rule, and consistently agai

Presented at the

Table of Contents

Introduction …………………………………………………………………… 3

I. Supreme Court Consideration of Church Property Disputes

B. Constitutional Law Decisions