Landmark First Amendment Religion Litigation?

[Scarberry, Mark]

I'm sympathetic theologically and as a matter of internal church process
with Rev. Moyer's complaints, but a secular court has no business
interfering with a church's choice of who is to be a minister.
"Traditionalists" (including Rev. Moyer) should realize that when they
invoke the power of the state in their disputes with "progressives" they
risk the independence of all churches and in the long run compromise the
ability of churches to retain their traditional beliefs and practices.
As Rick Garnett has pointed out, separation of church and state
includes, to a great degree, protection of the church from state
interference.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom Michael
Sent: Friday, January 26, 2007 10:09 AM
To: Law & Religion issues for Law Academics
Subject: RE: Landmark First Amendment Religion Litigation?

I will defer to those who know this area of the law better than I do,
but, isn't it the case that secular courts will impose secular notions
of procedural due process on adjudications by religious bodies?  If that
is so, then this case may be but so important, if it turns out that the
Episcopal Bishop transgressed those secular due process norms.  And if
that be the case, then isn't the appropriate judicial remedy a judgment
directing the Episcopal Bishop to give Moyer a "fair" trial?

One more thought that may be even more important:  if the Episcopal
Church's own rules contain due process protections and the Episcopal
Bishop has failed to follow them, then isn't it appropriate for a
secular court at least to order the religious organization to follow its
own rules, quite apart from any notions of constitutional (i.e. secular)
due process?

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of James Maule
Sent: Friday, January 26, 2007 8:52 AM
To: religionlaw at lists.ucla.edu
Subject: Landmark First Amendment Religion Litigation?

This may be of interest to some list members who are researching,
writing or teaching in this area:

>From this morning's Philadelphia Inquirer, at
http://www.philly.com/mld/philly/news/16548224.htm 

Judge lets ousted priest sue in test of First Amendment
The Episcopal bishop had denied the Montco cleric a church trial.

Clearing the way for a landmark test of the First Amendment, a
Montgomery County Court judge has allowed an Episcopal priest to sue his
bishop for removing him from priesthood.

In a decision released yesterday, Judge Thomas Branca rejected Bishop
Charles E. Bennison Jr.'s argument that the Rev. David Moyer had no
right to settle their differences with a civil trial.

Bennison's lawyers had argued in four appearances before Branca that
the First Amendment barred civil courts from deciding cases involving
religious personnel disputes.

But Moyer's lawyers replied that the priest had no other remedy because
Bennison denied him due process by removing him without a church trial,
as church law requires.

They also say Bennison fraudulently concealed relevant documents from
the diocesan standing committee, the diocese's administrative body,
which endorsed Moyer's removal.

John Lewis, Moyer's lawyer, said yesterday that he believed Moyer v.
Bennison would be "the first time that a case will go to trial which
involves ecclesiastical discipline of a priest in a hierarchical
church."

[remainder of article at cited URL]

For those not following the story, this most recent news is the latest
in a long line of posturing, maneuvering, voting, disputes, etc.,
between two groups in the church who take diametrically opposed views on
at least several hot-button issues.

I post this with a question mark in the topic because I'll let others
confirm or reject the proposition that this is  "the first time that a
case will go to trial which involves ecclesiastical discipline of a
priest in a hierarchical church."


Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
mauledagain.blogspot.com 
President, TaxJEM Inc (computer assisted tax law instruction)
(www2.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)



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