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In Chung v Kim, Unpublished Slip Op.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.


Rare concurring pronouncements by a minority of the Justices of the United States Supreme Court are not legally binding but may be educational.  The United States Supreme Court hears a mere handful of cases every year and denies certiorari in the rest.  Denials of certiorari are not usually accompanied by any explanation or opinion.  Though rare, sometimes there is a published dissent.  Rarer still, a filed and published concurrence to a denial of certiorari may be interesting enough to note.

In Seattle’s Union Gospel Mission v Woods, 592 US ___ (2022) (concurrence with denial of certiorari), Seattle’s Union was a parachurch organization that engaged in a number of threads of ministry to the poor.  One such thread was a legal aid service.  In order to minister through legal aid, the plaintiff had to hire a lawyer.  All employees, including any lawyer hired, had to agree to the employee handbook.  The handbook imposed a morality clause.  The lawyer applicant was a former summer intern and volunteer for Seattle’s Union.  The lawyer applied and disclosed that he was a bisexual in a same sex relationship.  The applicant could not provide a reference from a local pastor and was not a church member at the time of the application.  The ministry leader met with the lawyer applicant and explained the application could not be considered because of the morals clause in the handbook.  The lawyer submitted an application to “protest” the ministry’s morality clause and then filed suit.  The Washington state trial court dismissed the case based on the Washington anti-discrimination statute’s religious exemption.  The Washington Supreme Court reversed holding the statutory religious exemption violated the Washington state constitution.  The Washington Supreme Court also reversed for a factual finding by the trial court as to whether a lawyer in a ministry to the poor was a “minister” as contemplated by Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 189 (2012) and Our Lady of Guadalupe School v Morrissey-Berru, 591 US___ (2020).  Because the decision of the Supreme Court of Washington was interlocutory, and the trial court decision was not yet final, the United States Supreme Court would not accept the case.  The Justices’ concurrence with the denial noted the Washington state trial court had yet to address “whether applying state employment law to require the Mission to hire someone who is not a co-religionist would infringe the First Amendment.”

It can be assumed that the cost of the litigation has thus far been staggering and now must “start over” in the trial court.  The Mission would be well within its rights to simply abolish its legal aid ministry.  It might not clear the Mission of the charge of discrimination, and it might not prevent liability in a jurisdiction like the state of Washington, but it might stop the next case.  It is clear that many courts on the west coast simply no longer consider basic constitutional rights meaningful limits in their quest to suppress religious organizations and persons.  Even statutory exemptions for religious organizations enacted by the Washington legislature are to be set aside, it seems, in the quest of west coast courts for hegemony.


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.