We reported in July 2017 and September 2017 on Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), an opinion of the Supreme Court of Michigan that was revised. Our posts were entitled: The Finger in the Dike and The Leak in the Dike, respectively. The Supreme Court revised its own prior pronouncements that the Ecclesiastical Abstention Doctrine was jurisdictional and indicated it was not jurisdictional. If a dispute could be decided on neutral principles that did not require an inquiry into ecclesiastical decisions, then the dispute could be resolved by a Michigan court according to the Michigan high court. As we noted when we summarized the decision, the smaller and weaker the Ecclesiastical Abstention Doctrine is defined the more likely it becomes that a court, even a well-meaning one, will simply ignore ecclesiastical sensibilities. Another risk is that churches will be required to comply with laws intended to govern for-profit businesses and local governmental subdivisions, or the rules applicable to public schools, even though churches and church schools have a more fragile financial base.

In Rubinstein v Temple Israel, Slip Op., (Mich. App. 2018), the trial court dismissed the case for lack of jurisdiction. The religious school’s rule that required vaccinations and allowed exemptions only for medical reasons was narrower than state law that also allowed exemption on religious grounds. The trial court reasoned that an inquiry into whether the religious school’s determination that its students would not have religious grounds for refusing vaccinations was ecclesiastical and for that reason the trial court would not have jurisdiction to hear the case. The intermediate appellate court in Michigan, relying on the Michigan Supreme Court decision in Winkler, reversed the trial court because the Ecclesiastical Abstention Doctrine was an affirmative defense and not jurisdictional. In other words, a trial court might determine after discovery, in a summary judgment proceeding or a trial, that neutral principles could not decide the dispute but that the trial court would have jurisdiction to make that determination. Likewise, the trial court could rule that the dispute was not ecclesiastical.

The trial court on remand after the parties spend much more on litigation could hold the religious school cannot determine the religious preferences it will tolerate among its students. The trial court could reason that because a “neutral principle,” a state statute designed to preserve religious choice regarding vaccinations required by public schools, could resolve the dispute it need not make an ecclesiastical inquiry. Of course, one would think that under the First Amendment a religious school need not accommodate religious beliefs that vary from its own, whatever they are, but Michigan courts appear to want to be the final arbiter of those religious disputes.

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