Tag: ecclesiastical abstention doctrine

TOO MUCH ECCLESIASTICAL ABSTENTION? – 2nd Ed.

In late 2016, and summarized in a post here March 11, 2017, in the case of Church of God in Christ, Inc. v L.M. Haley Ministries, Inc., Slip. Op. (Tenn. App. 2016), the Plaintiff was attempting to assert hierarchal control over church property of one of its daughter churches when the local church leadership “went rogue.”  The founding Pastor of the church died and the presiding bishop installed a “speaker – rotation” system to prevent “dissension among those vying” to become the new Pastor.  But, two years later the presiding bishop died and a new presiding bishop was appointed.  The new bishop had the authority to appoint a new Pastor and appointed himself to be Pastor.  But, when the new bishop in the role as the new Pastor tried to assume control of the church assets he was blocked by local church leaders.  The opinion does not explain the motive.  Because the church had not withdrawn from the denomination, and the denomination had not declared the church withdrawn (or excommunicated) prior to the dispute, the courts determined the dispute was internal and further court intervention was barred by the ecclesiastical abstention doctrine.  The court would not declare the denomination’s rights to the assets of the affiliated church and the court would not confirm the new bishop as the new Pastor pursuant to the denomination’s governing documents.

On September 21, 2017, the Supreme Court of Tennessee opinion was issued reversing the intermediate appellate court and trial court, holding that the ecclesiastical abstention doctrine did not foreclose application of neutral principles of law.  The Plaintiff denomination, pursuant to its control documents which were adopted by the local church prior to the dispute, was awarded control of the assets of the daughter church including its real property.  It was interesting to note that the Supreme Court of Tennessee was careful to explain that the result would be the same if either the deed or the hierarchical control documents contained reversionary clauses, but that both were not required.

The better practice is for hierarchical churches to maintain reversionary clauses in both the denominational control documents and the local church deed.  But, in some if not by now most states, failure to put the language in the deed does not impair denominational enforcement of the reversionary clause.  Also, strategic (or fraudulent) related party transfers of the deed that attempt to strip the reversionary clauses of their impact are ineffectual.

THE LEAK IN THE DIKE

This review of church law has now been ongoing long enough to occasionally note developments in individual cases.  In the post titled The Finger in the Dike, July 6, 2017, the Supreme Court of Michigan’s opinion in Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), was summarized.  In that case, the student applicant to the church high school asserted she was denied admission due to dyslexia.  The defendant church school claimed the admission was denied because the student’s academic record did not meet the admissions requirements and that the disability was unknown to the church school at the time the admission decision was made.

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, even though churches have a more fragile financial base.  Thus, the Michigan Supreme Court reversed the intermediate appellate court decision and ordered it to consider the arguments it had not reached.  The applicability of the Ecclesiastical Abstention Doctrine was left for the trial court to determine.

In Winkler v Marist Fathers of Detroit, Inc., Slip. Op. (Mich. App., September 21, 2017), the Court of Appeals ruled that Michigan laws requiring schools not to discriminate on the basis of disability applied to church schools, too.  The law allowed church schools to discriminate on religious grounds, i.e., exclude a student that was not an adherent to the beliefs of the church school but not based on disability.  Thus, the case was remanded to the trial court to determine whether there was any ecclesiastical issue barring consideration of the dispute and whether the school based its admission decision on the alleged disability of the Plaintiff.

Another implication that might arise is the financial burden on the church school.  If the trial court decides there is no ecclesiastical issue it could also decide the only issue is whether the admission decision was discriminatorily based on disability.  To avoid such an issue in the future, or because it is enjoined or otherwise prohibited from making admission decisions based on academic performance for fear that lurking within is an undisclosed disability, the church school might also be forced to admit an academically challenged student and then might be forced to allocate accommodation resources (e.g., lower performance expectations, tutors, learning disability professionals).  The taxpayers have been unwilling in most places to fund these accommodations in public schools and public budgets have only been able to pay lip service to these needs.  As a result, public school systems struggle to meet these requirements and usually fail.  Church schools might get the opportunity to fail as well because donated money may be no more plentiful than public money.

HIERARCHIAL CHURCH TITLES AND TRADEMARKS

For some reason, some in the judicial branch have difficulty refraining from interfering in internal denominational matters when the local church or local diocese tries to escape from the parent organization with the local land holdings, too, rather than simply leaving and starting anew.  This seems odd given that these assets are generally amassed by local church members over a period of decades or even centuries that thought they were supporting their denominational church.  The new leadership or congregation in the local church may in recent times decide it can no longer as a matter of conscience support the parent church, but that does not automatically relieve them of the duties they may owe the denomination as to church assets accumulated by prior generations of members.

Episcopal Church litigation has focused the judicial microscope on denominational documents, land titles and ecclesiastical process as well as the hesitancy of some in the judicial branch to abstain as noted above.  In Protestant Episcopal Church, et al, v The Episcopal Church, ___ SE2d ___, 2017 WL 3274123 (SC 2017) it took four justices each writing separately to reverse the trial court (and there was a dissent).  The guiding finding was that the Defendant was the parent church in a hierarchical church and that the Plaintiffs were subordinate church entities.  Once this finding was made, the Ecclesiastical Abstention Doctrine required the Court to defer to the ecclesiastical decision-making by the parent church.  The Court concluded (quoting) “what happens to the relationship between a local congregation that is part of a hierarchical religious organization when members of the local congregation vote to disassociate is an ecclesiastical matter over which civil courts generally do not have a jurisdiction.”  Thus, the denominational requirement that the subordinate church entities held title to local church property in trust for the parent church was enforceable as were the federally registered trademarks.  Indeed, one of the concurring opinions suggested the Plaintiffs were “masquerading” as an authorized diocese in an effort to secure their land titles.  The autonomic reflex of the Court to switch to “neutral principles of law” regarding trust issues and property title issues was deemed inapplicable given the applicability of the Ecclesiastical Abstention Doctrine and the resulting deference to ecclesiastical due process imposed by the parent church.

The lesson for local churches is to be prepared to buy the property from the parent church or be prepared to leave it behind when disassociating and before announcing the disassociation.  With most local churches, the denominational parent will be unable or unwilling to keep the local church property and payoff remaining mortgages and maintenance costs and will negotiate a reasonable and affordable sale of the rights.  But, if the parent church decides to play “hardball,” the local church may be forced to relocate.

CHURCH SPLIT PURGATORY

Church splits that spill out into the street and the Courts often lead people that have never been through one to react with judgmental disdain.  The lesson of these conflicts, however, should not be missed.  First, very often, “but for the grace of God go I,” is usually true of those who react with judgmental disdain whether they admit it or know it.  Second, a church split often resembles, at least to this observer, a divorce with some of the same or very similar emotional drives and fallout.  Third, the causes of a church split are from the outside often incomprehensible; they seem irrational.  Fourth, on the inside, the irrationality of the church split is not apparent because convoluted emotional reasoning has often replaced reason and unthinkable motives like greed, lust for power, or primal fear threat reactions run rampant.

While the summer production of court opinions is often slower, this summer the Supreme Court of Alabama has issued, subject to revision, an opinion over 11,000 words long about church splits.  Taylor v Paradise Missionary Baptist Church, Slip. Op. (Ala. 2017). The opinion is notable because Alabama has declared that the Ecclesiastical Abstention Doctrine deprived the Alabama courts of jurisdiction to resolve a church split by declaring who was the elected pastor of the congregation.  The congregation was left to resolve the church split without resolution of the dispute by a Court.  Legal fees and five years of litigation ended with a dismissal of the case and no verdict.

The stupendous effort of the Alabama Supreme Court to “get it right” in this lengthy opinion was necessitated because a church with sixteen (16) members fractured into two (2) groups.  One group favored terminating and replacing the pastor.  The pastor led the resistance group.  Although the church was congregational, it belonged to an association and engaged a mediator from the association.  But, the failure to settle led to litigation in 2012 that resulted in five years of employment for lawyers and the Supreme Court opinion summarized herein.

Structurally, while the church had bylaws, it had not adjusted the bylaws to its diminutive size and did not elect the boards called for in their own bylaws.  Thus, the church learned the cost of operating like a rabble.  There appears to be a lack of convention speakers on the dangers of mob rule and no course in bible colleges in church administration.

No doubt, normal economic forces will resolve a church split, e.g., foreclosure, inability to pay the pastor, that cannot be resolved in Court.  If normal economic forces do not resolve it, other events in the lives of the disputants inevitably will resolve the church split, e.g., death, divorce, retirement, illness, loss of interest.  Rarely, a mediator will be engaged to resolve it.  Nevertheless, most church splits end by one of these means rather than by Court judgment.  In most states, a Court will finally resolve it by employing neutral principles of law.  But, not in Alabama if the result is the appointment of the pastor.  If the result is control of property, the result might be different, because the Court stated:  “As discussed above, the removal of Taylor as the pastor of PMBC was purely an ecclesiastical matter not involving a property right and the trial court lacked the jurisdiction to consider it.”

The Alabama Supreme Court opinion is also notable, and long, because of its recital of the century long history of church split litigation in Alabama.  This by itself made the opinion interesting.

THE FINGER IN THE DIKE

From the perspective of church defendants, any weakening in the shield wall of the Ecclesiastical Abstention Doctrine creates concern because the future courts that will operate under the doctrine may further weaken it.  At its best, the Ecclesiastical Abstention Doctrine might be viewed as a limitation on the jurisdiction of the third branch of government, the secular courts.  However, if it is not a limitation on jurisdiction, then the secular courts are free to rule to the full extent of their jurisdiction in any subject an argument can be made that secular law does not interfere with doctrinal freedom.  Moreover, the cost of compliance with secular law can reduce the freedom of religion by indirectly making the free exercise cost too much.  This is especially true in the church school.

In Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), the student applicant to the church high school asserted she was denied admission due to dyslexia.  The defendant church school claimed the admission was denied because the student’s academic record did not meet the admissions requirements.  Michigan held in 1994 that the Ecclesiastical Abstention Doctrine deprived the secular court of jurisdiction to hear church school admissions cases.  Thus, the Michigan Supreme Court took up the question of jurisdiction only and none of the other questions raised by the facts or parties.  The Michigan Supreme Court reversed the lower courts and held that the Ecclesiastical Abstention Doctrine does not deprive the court of jurisdiction.  The case was remanded for further proceedings.  Indeed, the case might still be dismissed by the lower courts on other grounds such as whether Michigan’s Persons with Disabilities Civil Rights Act applies to church schools and on Ecclesiastical Abstention Doctrine grounds if a religious reason for the denial of admission is revealed in discovery.

However, whereas before in Michigan the case would not have survived long enough to become an independent search for neutral principles under which to decide the case it now could.  Likewise, other cases on other topics could.  “Congress shall make no law respecting an establishment of religion” will be very narrow if it is limited in effect to the ecclesiastical questions and does not limit the larger regulation by government of the day to day affairs of a church, such as operating a church school.  No matter how “good” an idea it may be to force public schools to main stream all disabilities without commensurate adequate additional funding such a financial burden will close most church schools (and does not seem to be doing the public schools much “good”).  As the Ecclesiastical Abstention Doctrine shrinks in scope church schools will find themselves increasingly outside the shield wall.