Thursday, November 13, 2003

A Little Knowledge is Dangerous. I know very little about the Law of Schism -- so I don't offer any of this as a legal opinion, I am placing it out there for those who might be interested to start getting familiar with some of these things.

First, both of the First Amendment religion clauses -- freedom of religion and the establishment clause work to try to keep the courts and government out of arbitrating church disputes. Unfortunately, it doesn't happen.

A few key cases (in chronological order, to cut to the chase, skip down to Wolf):
  • Watson v. Jones 80 U.S. (13 Wall.) 679 (1872). Civil War case -- no use of the First Amendment. See also the Brennan concurrence in a 1970 case.
  • Kedroff v. St. Nicholas Cathedral 344 U.S. 94 (1952). This is notable because it's the first application of the 1st Amendment clauses to the Law of Schism. It's really not applicable to the present (on the facts) because the state legislature passed a law determining who would be in control of a denomination. ("By fiat [the state law] 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." )
  • Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440 (1969); Here the Court stated "...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." The Court then stated:
    The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a "substantial departure" from the tenets of faith and practice existing at the time of the local churches' affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory 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.
  • The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697 (1976) Here the Court held [see pp. 720-25] that the power to reorganize the dioceses of a hierarchical church in this country, was ''at the core of ecclesiastical affairs'' and a court could not interpret the church constitution to make an independent determination of the power but must defer to the interpretation of the body authorized to decide. (Also, note the dissenters, White and Rehnquist, who would be on opposite sides the next time in...)
  • Jones v. Wolf 443 U.S. 595 (1979). In short, if you followed the Serbian Eastern Orthodox Diocese case mentioned above, you would think the case would go one way, but it went a different way. The local church split and took their property with them. A minority petitioned the hierarchical denomination which sided with the denomination. The state courts, going back to the Watson v. Jones principles, looked first at what the deeds said, what the state laws on trusts said, etc. before deferring to the hierarchical church.

    As a result of this case, the ECUSA adopted the Dennis Canon*. But that's the subject for another discussion.

    * See Canon I.7.4, of the Episcopal Church USA, which states: "All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located."
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