Generally, the problem with elections at local churches that result in lawsuits is a failure to have a clear membership roll by which to identify voters or a failure to have a governing document with a clear election procedure. We have reported on courts that refused to take any action in either event because church governance is routinely held to be outside the jurisdiction of a court. Other courts believe the Neutral Principles of Law, typically found in state non-profit or general corporation statutes, can resolve an election issue so it remains within their jurisdiction. In these courts, the process is the question, not the merits of the election or the outcome.
In Chung v Kim, Unpublished Slip Op. (Cal. App. 2022), the trial court set aside the results of the first purported election of church leadership and ordered that a second be held pursuant to the procedures imposed by the Court. The procedures crafted by the Court were largely taken from the church By Laws. Implicit in the opinion is that the trial court was working off a translation of the By Laws into English. In challenging the second election conducted under the trial court’s order, the challengers submitted a second translated set of By Laws. Exactly how the second translation differed from the first was not reported in the opinion. In any event, the trial court refused to consider the second translation or overturn the second election. The appellate court affirmed the trial court.
In courts that will hear disputes about the process by which church leadership is elected in congregational churches, clear By Laws will almost always carry the day if the voters can be identified by a membership roll that appears to be legitimate. The risk of failure to have both is a battle for control between factions. The underlying issues that created the two factions will rarely be aired on the merits because nearly all courts will see that as straying into areas shielded by the Ecclesiastical Abstention Doctrine.
We have reported cases in which the church split led to a tug of war over a symbol that one faction tried to register and prevent other factions from using. Symbols, both generic and iconic, often were created long ago and their exact origins will never be known sufficiently to support defendable registration as a trademark. Symbols more recently created can become iconic, especially when they were not registered as trademarks or defended as such during the early years or decades of their existence. Symbols that become iconic or generic representations of a religious group may lose defendable registration as a trademark.
In Holy Spirit Association v World Peace and Unification Sanctuary, Inc., Memorandum (MD Penn. 2022), the federal trial court was faced with competing claims for a trademarked symbol. The church split arose at the denominational level between competing factions each claiming to be the legitimate heir of the deceased founder. The symbol in question may have been created by the founder in 1965 but one faction did not attempt to trademark it until 2009. The faction claiming the symbol was registered and defendable demanded that one of the other factions cease using the symbol. The faction using the symbol in alleged violation of the registration claimed the symbol was iconic and represented the underlying theological premise of everyone involved and not a particular faction. The federal court determined it could not determine whether the symbol was iconic without inquiring into the underlying theological premise the symbol was allegedly supposed to represent. The federal trial court held such an inquiry would violate the Ecclesiastical Abstention Doctrine and could not be decided by Neutral Principles of Law. Another religious inquiry, the court determined, would require determination of which faction was or represented the rightful heir of the founder and allegedly entitled to control the registered symbol.
The race to register the symbol as a trademark did determine a winner. Indeed, the half a century of use of the symbol by the founder of the denomination prior to registration argued that the symbol was or had become iconic long before the actual registration. The lesson is that trademarking registration should accompany the birth of the symbol or be commenced as soon thereafter as possible. Founders rarely anticipate their own passing and rarely plan for succession. Likewise, they rarely plan for competing factions among those claiming to be rightful heirs.
It took the Texas courts substantial effort to work through to find the edges between Texas tort law and the Ecclesiastical Abstention Doctrine. The legal culture of Texas, that there should be a remedy for every wrong and that everyone should have access to the Texas courts, is strongly engrained. Fitting the edges of that absolute to the edges of the Ecclesiastical Abstention Doctrine was difficult both legally and culturally. Other states have had similar angst.
In July 2021, we reported on the seemingly terminal disposition of the issue by the Texas Supreme Court in In Re Diocese of Lubbock (II), 624 SW3d 506 (Tex. 2021), cert. denied, 142 S. Ct. 434 (2021). The Texas Supreme Court invoked the Ecclesiastical Abstention Doctrine and ordered the case dismissed on jurisdictional grounds. Essentially, the rule that evolved was “[b]ecause courts are prohibited from risking judicial entanglement with ecclesiastical matters, if the substance and nature of the plaintiff’s claims are inextricably intertwined with matters of doctrine or church governance, then the case must be dismissed.” (quoting the case reported on in this article, at 11).
In Heras v Diocese of Corpus Christi, Slip Op. (Tex. App. 13th, Corpus Christi 2022), the dismissal on jurisdictional grounds of the Plaintiffs’ defamation tort action was held in abeyance on appeal until the Texas Supreme Court ruled as noted in July and summarized above. The appeal was reactivated and the trial court’s dismissal was affirmed. The appellate court began their analysis with a review of the holdings in Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S.Ct. 2049 (2020) and Hosanna-Tabor Evangelical Lutheran Church & Sch. v E.E.O.C., 565 U.S. 171 (2012). The appellate court held “[h]ere, appellants impermissibly seek to impose liability on appellees for compliance with an internal church instruction of openness and transparency.” Compliance with the “internal church instruction” by investigation and public disclosure was not within the jurisdiction of the Texas courts to address.
We have repeatedly reported opinions of the United States Court of Appeals for the 9th Circuit that reveal a political agenda at work to suppress a legal one. In 2019, in flagrant disregard of United States Supreme Court rulings to the contrary, see, Hosanna-Tabor Evangelical Lutheran Church & School v E.E.O.C., 565 US 171 (2012), the 9th Circuit continued holding that Catholic school teachers could still make federal employment law claims even though extra-ordinary dissents among their own ranks resulted. See, Biel v St. James School, 911 F3d 603 (9th Cir. 2018). The Supreme Court reversed the 9th Circuit. Our Lady of Guadalupe School v Morrissey-Beru consolidated with St. James School v Biel, ___US___, 140 S. Ct. 2049 (2020). The 9th Circuit uses various means to navigate past the First Amendment, the Ecclesiastical Abstention Doctrine, and the Ministerial Exception.
In Cedar Park Assembly of God v Kreidler, Order (WD Wash., 2022) the federal trial court ultimately allowed the Plaintiff’s challenge to state statutes imposing on church employers the duty to include abortion coverage in their medical coverage. The 9th Circuit reversed a prior ruling of the federal trial that had swept aside a Free Exercise claim but affirmed that the church waived its Establishment Clause claim for failing to brief it in the church’s opening brief before the 9th Circuit. Sadly, the error of the federal trial court pushed the church to the 9th Circuit and the lawyer for the church either made a drafting error or did not think that issue was before the 9th Circuit. In any event, treating constitutional level jurisdictional challenges as waivable in an interlocutory appeal, particularly in light of a remand, seems typical of the 9th Circuit. Also, ignoring the authority of the United States Supreme Court is another hallmark. This issue was decided in Burwell v Hobby Lobby Stores, Inc., 573 US 682 (2014). Amazingly, the Burwell opinion is not discussed in the Cedar Park Order by the federal trial court. In any event, the Free Exercise claim, which is an Establishment Clause claim, are simply some of the names given to First Amendment claims. The 9th Circuit seems to treat the language of the First Amendment (“Congress shall make no law…”) as subservient to its political agenda.