Landmark First Amendment Religion Litigation?

[Newsom Michael]

That is all well and good, but I have the sense that the Court
nonetheless applied secular norms in some post-Wolf cases, indeed
perhaps going so far as to constitutionalize a Congregationalist polity
even in hierarchical churches (be they Episcopalian or Presbyterian in
their polity).  If this isn't the application of secular norms, then
what is it?

As to the post-Wolf cases, it is difficult to argue that they can be
easily reconciled, there being a real difference on the precise question
of secular norms.  I think that the law is anything but clear,
post-Wolf.

One more point, the property dispute cases involving Eastern Orthodox
Churches certainly reflect secular norms -- a dislike of communism, for
openers.

 


----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, January 26, 2007 4:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: Landmark First Amendment Religion Litigation?

"[W]hether 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.""  Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 713 (1976).


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
Lawyer2974 at aol.com
	Sent: Friday, January 26, 2007 1:24 PM
	To: religionlaw at lists.ucla.edu
	Subject: Re: Landmark First Amendment Religion Litigation?
	
	
	In a message dated 1/26/2007 4:20:12 PM Eastern Standard Time,
mnewsom at law.howard.edu writes:

		I will be the first to admit that I may have misread
Jones v. Wolf, but "neutral principles of law" is a rather capacious
concept, and don't forget Gonzalez v. Roman Catholic Archbishop of
Manila and the insistence there of the right of the Court to provide a
remedy where there was "fraud, collusion, or arbitrariness" in the
proceedings before the religious tribunal.

		 

	Jones v. Wolf sets forth one means by which a state may
constitutionally chose to resolve property disputes..it does not stand
ofr a general proposition applicable to the ministerial exception or
other aspects of ecclesial life.....case law has specifically held that
the "arbitrariness" referred to in Gonzalez  does not give a court the
jurisdiction to interpret an ecclesiaastical organization's
ecclesiastical process
	 
	Donald C. Clark, Jr.
	2333 Waukegan Road
	Suite 160
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	847-236-0900
	847-236-0909 (fax)
	
	

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