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Religion - Overview

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RELIGION AND FREE EXPRESSION

FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

RELIGION

An Overview

Madison’s original proposal for a bill of rights provision concerning religion read: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.”1 The language was altered in the House to read: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”2 In the Senate, the section adopted read: “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .”3

It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its somewhat more indefinite “respecting” phraseology.4 Debate in Congress lends little assistance in interpreting the religion clauses; Madison’s position, as well as that of Jefferson, who influenced him, is fairly clear,5 but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

1 1 ANNALS OF CONGRESS 434 (June 8, 1789).

2 The committee appointed to consider Madison’s proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: “No religion shall be established by law, nor shall the equal rights of conscience be infringed.” After some debate during which Madison suggested that the word “national” might be inserted before the word “religion” as “point[ing] the amendment directly to the object it was intended to prevent,” the House adopted a substitute reading: “Congress shall make no laws touching religion, or infringing the rights of conscience.” 1 ANNALS OF CONGRESS 721-31 (August 15, 1789). On August 20, on motion of Fisher Ames, the language of the clause as quoted in the text was adopted. Id. at 766. According to Madison’s biographer, “[t]here can be little doubt that this was written by Madison.” I. BRANT, JAMES MADISON—FATHER OF THE CONSTITUTION 1787-1800 at 271 (1950).

3 This text, taken from the Senate Journal of September 9, 1789, appears in 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1153 (B. Schwartz ed., 1971). It was at this point that the religion clauses were joined with the freedom of expression clauses.

4 1 ANNALS OF CONGRESS 913 (September 24, 1789). The Senate concurred the same day. See I. BRANT, JAMES MADISON—FATHER OF THE CONSTITUTION 1787- 1800 271-72 (1950).

5 During House debate, Madison told his fellow Members that “he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.” 1 ANNALS OF CONGRESS 730 (August 15, 1789). That his conception of “establishment” was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, “comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.”’ 8 THE WRITINGS OF JAMES MADISON (G. Hunt, ed.) 132-33 (1904). Madison’s views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his “Memorial and Remonstrance against Religious Assessments” setting forth his thoughts. Id. at 183-91; I. BRANT, JAMES MADISON—THE NATIONALIST 1780-1787 343-55 (1948). Acting on the momentum of this effort, Madison secured passage of Jefferson’s “Bill for Religious Liberty”. Id. at 354; D. MALONE, JEFFERSON THE VIRGINIAN 274-280 (1948). The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.

Scholarly Commentary.—The explication of the religion clauses by scholars in the nineteenth century gave a restrained sense of their meaning. Story, who thought that “the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,”6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. “The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”7

6 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1865 (1833).

7 Id. at 1873.

“Probably,” Story also wrote, “at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment.9

Not until the Supreme Court held the religion clauses applicable to the states in the 1940s10 did it have much opportunity to interpret them. But it quickly gave them a broad construction. In Everson v. Board of Education,11 the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that “aid one religion” or “prefer one religion over another,” but also those that “aid all religions.” With respect to the Free Exercise Clause, it asserted in Wisconsin v. Yoder12 that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”

More recent decisions, however, evidence a narrower interpretation of the religion clauses. Indeed, in Employment Division, Oregon Department of Human Resources v. Smith13 the Court abandoned its earlier view and held that the Free Exercise Clause never “relieve(s) an individual of the obligation to comply with a ‘valid and neutral law of general applicability.”’ On the Establishment Clause the Court has not wholly repudiated its previous holdings, but recent decisions have evidenced a greater sympathy for the view that the clause bars “preferential” governmental promotion of some religions but allows governmental promotion of all religion in general.14 Nonetheless, the Court remains sharply split on how to interpret both clauses.

8 Id. at 1868.

9 For a late expounding of this view, see T. COOLEY, GENERAL PRINCIPLES OF

CONSTITUTIONAL LAW IN THE UNITED STATES 224-25 (3d ed. 1898).

10 Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise clause); Everson v. Board of Education, 330 U.S. 1 (1947) (establishment clause).

11 330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view.

12 406 U.S. 205, 215 (1972).

13 494 U.S. 872, 879 (1990).

Court Tests Applied to Legislation Affecting Religion.— Before considering in detail the development of the two religion clauses by the Supreme Court, one should notice briefly the tests the Court has articulated to adjudicate the religion cases. At the same time it should be emphasized that the Court has noted that the language of earlier cases “may have [contained] too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.”15 While later cases have relied on a series of well-defined, if difficult-to-apply, tests, the Court has cautioned that “the purpose [of the religion clauses] was to state an objective, not to write a statute.”16

In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut, in which he declared that it was the purpose of the First Amendment to build “a wall of separation between Church and State.”17 In Reynolds v. United States,18 Chief Justice Waite for the Court characterized the phrase as “almost an authoritative declaration of the scope and effect of the amendment.” In its first encounters with religion-based challenges to state programs, the Court looked to Jefferson’s metaphor for substantial guidance.19 But a metaphor may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action.20 The concept of neutrality itself is “a coat of many colors,”21 and three standards that seemingly could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards emerged together. “The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”22 The third test emerged several years later and asks whether the governmental program results in “an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.”23 In 1971 these three tests were combined and restated in Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman,24 and are frequently referred to by reference to that case name.

14 See Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); and Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002). The fullest critique of the Court’s broad interpretation of the establishment clause was given by then-Justice Rehnquist in dissent in Wallace v. Jaffree, 472 U.S. 38, 91 (1985).

15 Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).

16 397 U.S. at 668.

17 16 THE WRITINGS OF THOMAS JEFFERSON 281 (A. Libscomb ed., 1904).

18 98 U.S. 145, 164 (1879).

19 Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 212 (1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief Justice Burger remarked that “the line of separation, far from being a ‘wall,’ is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship.” Similar observations were repeated by the Chief Justice in his opinion for the Court in Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not “wholly accurate”; the Constitution does not “require complete separation of church and state [but] affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any”).

20 Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694-97 (1970) (Justice Harlan concurring). In the opinion of the Court in the latter case, Chief Justice Burger wrote: “The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id. at 669.

21 Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concurring).

22 Abington School District v. Schempp, 374 U.S. 203, 222 (1963).

23 Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970).

24 403 U.S. 602, 612-13 (1971).

Although at one time accepted in principle by all of the Justices,25 the tests have sometimes been difficult to apply,26 have recently come under direct attack by some Justices,27 and in several instances have not been applied at all by the Court.28 Nonetheless, the Court employed the Lemon tests in several of its most recent establishment clause decisions,29 and it remains the case that those tests have served as the primary standard of establishment clause validity for the past three decades. However, other tests have also been formulated and used. Justice Kennedy has proffered “coercion” as an alternative test for violations of the establishment clause,30 and the Court has used that test as the basis for decision from time to time.31 But that test has been criticized on the grounds it would eliminate a principal distinction between the establishment clause and the free exercise clause and make the former a “virtual nullity.”32 Justice O'Connor has suggested “endorsement” as a clarification of the Lemon test, i.e., that the establishment clause is violated if the government intends its action to endorse or disapprove of religion or if a “reasonable observer” would perceive the government’s action as such an endorsement or disapproval.33 But others have criticized that test as too amorphous to provide certain guidance.34 Justice O'Connor has also suggested that it may be inappropriate to try to shoehorn all establishment clause cases into one test, and has called instead for recognition that different contexts may call for different approaches.35 In two of its most recentestablishment clause decisions, it might be noted, the Court employed all three tests in one decision36 and relied primarily on a modified version of the Lemon tests in the other.37

25 E.g., Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion); Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting opinion).

26 The tests provide “helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973), and are at best “guidelines” rather than a “constitutional caliper;” they must be used to consider “the cumulative criteria developed over many years and applying to a wide range of governmental action.” Inevitably, “no ‘bright line’ guidance is afforded.” Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice Blackmun dissenting).

27 See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987) (Justice Scalia, joined by Chief Justice Rehnquist, dissenting) (advocating abandonment of the “purpose” test); Wallace v. Jaffree, 472 U.S. 38, 108-12 (1985) (Justice Rehnquist dissenting); Aguilar v. Felton, 473 U.S. 402, 426-30 (1985) (Justice O'Connor, dissenting) (addressing difficulties in applying the entanglement prong); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768-69 (Justice White concurring in judgment) (objecting to entanglement test). Justice Kennedy has also acknowledged criticisms of the Lemon tests, while at the same time finding no need to reexamine them. See, e.g., Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655- 56 (1989). At least with respect to public aid to religious schools, Justice Stevens would abandon the tests and simply adopt a “no-aid” position. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).

28 See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers on the basis of historical practice); Lee v. Weisman, 505 U.S. 577, 587 (1992) (rejecting a request to reconsider Lemon because the practice of invocations at public high school graduations was invalid under established school prayer precedents). The Court has also held that the tripartite test is not applicable when law grants a denominational preference, distinguishing between religions; rather, the distinction is to be subjected to the strict scrutiny of a suspect classification. Larson v. Valente, 456 U.S. 228, 244-46 (1982). See also Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) (upholding provision of sign-language interpreter to deaf student attending parochial school); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994) (invalidating law creating special school district for village composed exclusively of members of one religious sect); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (upholding the extension of a university subsidy of student publications to a student religious publication).

29 Agostini v. Felton, 521 U.S. 203 (1997) (upholding under the Lemon tests the provision of remedial educational services by public school teachers to sectarian elementary and secondary schoolchildren on the premises of the sectarian schools); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (holding unconstitutional under the Lemon tests as well as under the coercion and endorsement tests a school district policy permitting high school students to decide by majority vote whether to have a student offer a prayer over the public address system prior to home football games); and Mitchell v. Helms, 530 U.S. 793 (2000) (upholding under the Lemon tests a federally funded program providing instructional materials and equipment to public and private elementary and secondary schools, including sectarian schools).

30 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989) (Justice Kennedy concurring in part and dissenting in part); and Lee v. Weisman, 505 U.S. 577 (1992).

31 Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

32 Lee v. Weisman, 505 U.S. 577, 621 (Souter, J., concurring). See also County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (O'Connor, J., concurring in part and concurring in the judgment).

33 Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (concurring); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (concurring); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 712 (1994) (concurring).

34 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989) (Justice Kennedy, concurring in the judgment in part and dissenting in part); and Capitol Square Review Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (Justice Scalia).

35 Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 718-723 (1994) (O'Connor, J., concurring in part and concurring in the judgment).

36 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

37 Mitchell v. Helms, 530 U.S. 793 (2000).

In interpreting and applying the Free Exercise Clause, the Court has consistently held religious beliefs to be absolutely immune from governmental interference.38 But it has used a number of standards to review government action restrictive of religiously motivated conduct, ranging from formal neutrality39 to clear and present danger40 to strict scrutiny.41 For cases of intentional governmental discrimination against religion, the Court still employs strict scrutiny42 But for most other free exercise cases it has now reverted to a standard of formal neutrality. “[T]he right of free exercise,” it recently stated, “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”'43

38 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Cantwell v. Connecticut, 310 U.S. 296 (1940); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

39 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Braunfeld v. Brown, 366 U.S. 599 (1961).

40 Cantwell v. Connecticut, 310 U.S. 296 (1940).

41 Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

42 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

43 Employment Div. v. Smith, 494 U.S. 872, 879 (1990), quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Justice Stevens concurring in the judgment).

Government Neutrality in Religious Disputes.—One value that both clauses of the religion section serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schism sometimes develops within churches or between a local church and the general church, resulting in secession or expulsion of one faction or of the local church. A dispute over which body is to have control of the property of the church will then often be taken into the courts. It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to look to the decision-making body or process in the church and to give effect to whatever decision is officially and properly made.

The first such case was Watson v. Jones,44 which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral,45 in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church which had declared their independence from the general church. Recognizing that Watson v. Jones had been decided on nonconstitutional grounds, the Court thought nonetheless that the opinion “radiates . . . a spirit of freedom for religious organizations, and independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”46 The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it was held, is to look at the church rules: if the church is a hierarchical one which reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, while if the church is a congregational one prescribing action by a majority vote, that determination will prevail.47 On the other hand, a court confronted with a church property dispute could apply “neutral principles of law, developed for use in all property disputes,” when to do so would not require resolution of doctrinal issues.48 In a later case the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government, the power to reorganize the dioceses of a hierarchical church in this country, was “at the core of ecclesiastical affairs” and a court could not interpret the church constitution to make an independent determination of the power but must defer to the interpretation of the church body authorized to decide.49

44 80 U.S. (13 Wall.) 679 (1872).

45 344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at 116. But the subsequent cases used a collective “First Amendment” designation.

46 344 U.S. at 116. On remand, the state court adopted the same ruling on the merits but relied on a common-law rule rather than the statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).

47 Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 447, 450-51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in another context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud through dissemination of purported religious literature the right to present to the jury evidence of the truthfulness of the religious views he urged).

In Jones v. Wolf,50 however, a divided Court, while formally adhering to these principles, appeared to depart in substance from their application. A schism had developed in a local church which was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the “true congregation” of the local church and awarded them authority over it. But rather than requiring deference to the decision of the church body, the Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church’s constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregational majority.51 Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter.52 The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted it to ignore the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church.53

48 Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368-70 (Justice Brennan concurring).

49 The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697, 720-25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permitted limited inquiry into the legality of the actions taken under church rules. The Serbian Eastern Court disapproved of this inquiry with respect to concepts of “arbitrariness,” although it reserved decision on the “fraud” and “collusion” exceptions. 426 U.S. at 708-20.

50 443 U.S. 595 (1979). In the majority were Justices Blackmun, Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices Powell, Stewart, White, and Chief Justice Burger.

51 443 U.S. at 602-06.

52 443 U.S. at 606-10. Because it was unclear whether the state court had applied such a rule and applied it properly, the Court remanded.

53 443 U.S. at 610.

Thus, it is unclear where the Court is on this issue. Jones v. Wolf restated the rule that it is improper to review an ecclesiastical dispute and that deference is required in those cases, but by approving a neutral principles inquiry which in effect can filter out the doctrinal issues underlying a church dispute, the Court seems to have approved at least an indirect limitation of the authority of hierarchical churches.54

54 The Court indicated that the general church could always expressly provide in its charter or in deeds to property the proper disposition of disputed property. But here the general church had decided which faction was the “true congregation,” and this would appear to constitute as definitive a ruling as the Court’s suggested alternatives. 443 U.S. at 606.

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