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Unpublished Paper
ExpressO (2012)
  • Bruce B Jackson, Catholic University of America

First Amendment Religion Clause doctrine applicable to a religious organization’s internal property dispute offers civil courts an option. Provided the controversy does not involve religious doctrine, a civil court may either defer to a religious organization’s governing body, or, resolve the matter itself by applying neutral principles of law. Application of the doctrine requires a civil court to treat religious corporations with a hierarchical form of government differently from those with a congregational form of government. For religious corporations that are hierarchically organized and governed, a normative Religion Clause analysis requires a civil court to defer to the decision of the organization’s highest religious tribunal. For congregationally organized and governed religious corporations, the analysis requires deference to the decision of a majority of the congregation or other body the congregation has agreed governs. While civil courts routinely defer to the decisions of hierarchical tribunals on internal disputes involving matters of faith, doctrine, governance, polity, and administration, they routinely treat like matters within a congregational corporation as secular, corporate matters. Civil courts frequently fail to recognize or acknowledge the ecclesiastical nature of internal disputes within congregational polities in the same way they do for those of hierarchical polity. All too often, civil courts presume the controversy within religious corporations of hierarchical polity to involve ecclesiastical doctrine while considering like issues within congregational polities to be corporate contractual matters. Consequently, civil court end up deferring to the decisions of a hierarchical religious corporation’s highest tribunal, but subject a congregational religious organization to neutral principles of law allowing it to review the organization’s contracts, bylaws, constitution, minutes and resolutions.

The most significant contributing factor to this aberration is the corporate form of the congregational religious organization. While most religious organizations are organized under one form or another of a state’s incorporation statute, the form most common to the congregational religious organization is that of a not-for-profit corporation. As the creation of a state’s not-for-profit incorporation statute, the organization is required to follow the statute’s operational requirements by adopting bylaws for the governance of its affairs, passing resolutions to authorize its corporate acts, and documenting corporate decisions with minutes. Many bind their clergy by contract. This blend of corporate processes and procedures with religious practice has a tendency to turn religious tradition and doctrine into mere circumstance. When this happens, civil courts are often seduced by the corporate side of the congregational corporation, and, internal disputes of the type that are normally handled by hierarchical tribunals, are, in the case of congregational polities, handled by a civil court judge as a corporate matter. When a court decides to take the road most familiar and follow its corporate instincts, religious freedoms are often put in peril, rules are followed but injustice is done.

This Article highlights the significant role that corporate form has played in the evolution and application of First Amendment Religion Clause doctrine, and argues that, because most religious organizations of congregational polity are not-for-profit corporations with a secular corporate form and organizational structure, they are frequently seen and treated by civil courts like secular corporations. The Article proposes that the more constitutionally sound First Amendment Religion Clause doctrinal analysis should focus on ecclesiastical essence rather than organizational corporate form.

  • First Amendment Religion Clauses,
  • Religious Corporations
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