Landmark First Amendment Religion Litigation?
Volokh, Eugene
VOLOKH at law.ucla.edu
Fri Jan 26 14:53:23 PST 2007
I'd love to hear more details.
> -----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 2:52 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Landmark First Amendment Religion Litigation?
>
> Some of the other cases come out the other way, if I remember
> them correctly.
>
> -----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 5:32 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Landmark First Amendment Religion Litigation?
>
> Well, I firmly endorse a secular norm of disliking Communism.
> Nonetheless, unless I'm mistaken the Milivojevich Court held
> *in favor* of the Yugoslav (and I take it
> Communist-influenced) hierarchy. The hierarchy tried to
> remove the American bishop; the Illinois Supreme Court
> invalidated the removal "as 'arbitrary' because the
> proceedings resulting in those actions were not conducted
> according to the Illinois Supreme Court's interpretation of
> the Church's constitution and penal code, and that the
> Diocesan reorganization was invalid because it was beyond the
> scope of the Mother Church's authority to effectuate such
> changes without Diocesan approval." The Supreme Court
> reversed the Illinois decision, and the Communist-influenced
> hierarchy won. That seems to suggest that the Court was
> following a norm of deference to the hierarchical
> authorities, whether the heads were under the influence of
> Communists or not. Am I missing something here?
>
> Eugene
>
> > -----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 2:25 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Landmark First Amendment Religion Litigation?
> >
> > 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
> > Bannockburn, Illinois 60015
> > 847-236-0900
> > 847-236-0909 (fax)
> >
> >
> >
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