Tag Archives: Church Autonomy

Kirkham (ed.), “State Responses to Minority Religions”

Last month, Ashgate published State Responses to Minority Religions edited by David M. Kirkham (Brigham Young University).  The publisher’s description follows.   State Responses to Minority Religions

The response of states to demands for free exercise of religion or belief varies greatly across the world. In some places, religions come as close as imaginable to autonomous existences with little interference from government. In other cases religion finds itself grinding out a meagre living, if at all, under the jealously watchful eye of the state.

This book provides a legal and normative overview of the variety of responses to minority religions available to states. Exploring case studies ranging from Islamic regions such as Indonesia, Pakistan, and the wider Middle East, to Western Europe, Eastern Europe, China, Russia, Canada, and the Baltics, contributors include international scholars and experts in law, sociology, religious studies, and political science. This book offers invaluable perspectives on how minority religions are currently being received, reviewed, challenged, or ignored in different parts of the world.

Can a Church Refuse to Sell Property Because of a Buyer’s Religion?

Here’s a bleg for you law and religion fans. Rod Dreher had an interesting post last week about the continuing division in the Episcopal Church over doctrinal issues. Several parishes, and even a few dioceses, if I’m not mistaken, have sought to leave the Episcopal Church because of the church’s liberal stand on issues like homosexuality. These parishes typically affiliate with Anglican bishops who remain committed to traditional doctrine.

Often, the departing congregations wish to maintain control of church property. Because of the way the relevant deeds and other legal documents are written, though, and because of the church autonomy principle, the congregations typically lose. Rod reports that the Episcopal Church has spent about $26 million litigating all the cases–an astounding figure, when you think about it.

All this is straightforward, legally speaking. But Rod’s post raises an issue I hadn’t thought about. When a departing parish in Binghamton, New York, sought to purchase its church building for $150,000, the Episcopal Church refused to sell. Apparently, the Church’s presiding bishop, Katharine Jefferts Schori, has adopted a policy of refusing to sell church property to any group that intends to affiliate with an Anglican bishop. The Episcopal Church has sold off property to Baptists, Methodists, Jews, and Muslims, but not Anglicans. In the Binghamton case, the Church eventually sold the property to a mosque which paid only $50,000 for it–one-third what the departing congregation had offered to pay.

So, here’s the question. Is it legal for a church to refuse to sell church property solely because of the buyer’s religion? You’d think there would be an easy answer, but I haven’t been able to find one. The federal civil rights laws prohibit religious discrimination in residential sales, but that wouldn’t apply to church buildings. Some state civil rights laws apply to commercial property, but there are exemptions for religious groups–and anyway, these cases don’t involve commercial property, either. In the federal employment anti-discrimination laws, a specific exception exists for religious bodies that discriminate on the basis of religion, and a couple of years ago, in the Hosanna-Tabor case, the Supreme Court held that the Constitution allows religious bodies to discriminate with respect to the employment of ministers. Would there be an analogous carve-out from non-discrimination principles for churches that do not wish to sell their sanctuaries to religious rivals? Any ideas?

Religious Division and Identity – Richard III and the Rest of Us – Part IV

I’ve been writing about theological and historical perspectives on religious identity, continuity, and division.  See here and here and here.  But what about the law? The problem of competing claims to what I’ve called the “religious DNA” of a faith tradition typically comes up during battles over church property arising out of divisions and schisms of one sort or another, within congregations or between congregations and larger church bodies.  (I’m not going to talk here about the “personnel” issues that have given risen to the “ministerial exception” doctrine

These sorts of conflicts arise frequently in a country such as ours where religious life and ecclesiastical identities have often been in flux, and have always raised fascinating and difficult questions.  An important recent example has been the effort to adjudicate the property of several Episcopal parish churches in Virginia whose congregations voted to break away from the Diocese of Virginia, and affiliate with the new “Anglican Church in North America” in reaction to the national Episcopal Church’s policies regarding homosexuality.  Nobody, of course, disputes the right of a group of persons to worship as they please and affiliate with whatever religious group they please.  The real question, put bluntly, is who gets to keep the church building, the bank accounts, the chalices and crosses and books and all the other material stuff of religious life.  This past April, the Virginia Supreme Court ruled largely in favor of the Diocese and the national Episcopal Church and against the breakaway congregations.

The issues raised by these and similar cases are much too involved and messy for one blog post.  But here are a few thoughts, connecting the legal questions to the other perspectives I’ve written about in this little series of posts.

Continue reading

Robinson on Religious Institutions

Zoe Robinson (DePaul) has posted a new piece, What is a Religious Institution?, on SSRN. The abstract follows:

Change in the First Amendment landscape tends towards the incremental, but the Supreme Court’s opinion two terms ago in Hosanna-Tabor v. EEOC — holding that religious institutions enjoy a range of First Amendment protections that do not extend to other individuals or organizations — is better understood as a jurisprudential earthquake. The suddenness and scale of the shift helps to explain the turmoil that has ensued in the lower courts and law journals. And yet, it could be that the biggest aftershock has yet to be felt. The Court left open the most important functional question that exists in scenarios where there will be constitutional winners and losers: what, or who, is a ‘religious institution’ for First Amendment purposes?

The lower federal courts have begun to grapple with the question, but no satisfactory approach exists. Drawing on the historical sources and values animating Hosanna-Tabor and its Religion Clause predecessors, this Article provides a workable framework for distinguishing between those institutions that fall within the scope of the religious institutions category and those that do not. The framework proposed here proceeds from a purposive analysis that turns on which institutions will most often and most effectively use the newly identified and exclusive protections to benefit society as a whole. To this end, the framework favors institutions that have as their purpose (1) protection of individual conscience; (2) protection of group rights; and (3) provision of desirable societal structures.

Nichols (ed.), “Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion”

Today, Cambridge University Press publishes Marriage and Divorce in a51hSPzHqugL__BO2,204,203,200_PIsitb-sticker-arrow-click,TopRight,35,-76_AA300_SH20_OU01_ Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion, edited by Joel A. Nichols (University of St. Thomas, Minnesota). The publisher’s description follows.

American family law makes two key assumptions: first, that the civil state possesses sole authority over marriage and divorce; and second, that the civil law may contain only one regulatory regime for such matters. These assumptions run counter to the multicultural and religiously plural nature of our society. They are also wrong. This book elaborates how those assumptions are descriptively incorrect, and it begins an important conversation about whether more pluralism in family law is normatively desirable. For example, may couples rely upon religious tribunals (Jewish, Muslim, or otherwise) to decide family law disputes? May couples opt into stricter divorce rules, either through premarital contracts or “covenant marriages?” How should the state respond when couples purport to do these things? Intentionally interdisciplinary and international in scope, this volume contains contributions from fourteen leading scholars. The authors address the provocative question of whether the state must consider sharing its jurisdictional authority with other groups in family law.

European Court Rules Clergy Cannot Unionize Over Church’s Objection

In a much-anticipated decision, the Grand Chamber of the European Court of Human Rights ruled today, 11-6, that Romania did not violate the European Human Rights Convention when it refused to register a trade union that Romanian Orthodox priests had formed against the wishes of the Romanian Orthodox Church. The decision, with important implications for church autonomy, overrules a contrary judgment by a chamber of the court last year.

Article 11 of the European Convention grants citizens–including, the Grand Chamber ruled today, clergy–the right to form trade unions, subject to restrictions that are necessary to advance legitimate governmental interests, including the “protection of the rights and freedoms of others.” Here, the Grand Chamber reasoned, Romania had restricted the priests’ right to form a union in order to protect the autonomy of Romanian Orthodox Church. Among other things, the proposed union was meant to promote members’ ability to obtain representation in the Holy Synod, the Church’s highest authority, and to strike in order to advance members’ interests within the Church. By registering a union with goals like these, the Grand Chamber reasoned, the state would hamper the ability of the Church to organize and govern itself according to its own rules:

Respect for the autonomy of religious communities … implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is … not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them.

In other words, because the union posed a real risk to the organizational integrity of the Romanian Orthodox Church, Romania was justified in refusing to register the union–particularly given the wide “margin of appreciation” the Convention grants states with respect to church/state relations.

The Grand Chamber’s decision contains language suggesting a sweeping view of church autonomy, but one could also see it as somewhat narrow. The Grand Chamber noted that nothing would stop clergy from forming a union “that pursues aims compatible with the Church’s Statute and does not call into question the Church’s traditional hierarchical structure and decision-making procedures.” And it emphasized the the fact-specific nature of the inquiry, stating at one point that “national courts must … conduct[] an in-depth examination of the circumstances of [a] case and a thorough balancing exercise between the competing interests at stake.” The resistance to a categorical rule is reminiscent of the US Supreme Court’s analysis in Hosanna-Tabor, the “ministerial exception” case. A third-party submission by the Becket Fund and the International Center for Law and Religion Studies discussed Hosanna-Tabor, but the Grand Chamber did not expressly rely on the American decision in its own reasoning.

The case is Sindicatul Pastoral cel Bun v. Romania (July 9, 2013), available at the ECtHR’s website, here. The Becket Fund’s press release about the decision is here.

Annicchino on Religious Autonomy

For our followers who read Italian, CLR Forum guest poster Pasquale Annicchino (European University Institute) has posted a comparative essay on religious autonomy in the US and Europe, The Conflict between the Autonomy of Religious Groups and Other Fundamental Rights: Recent Decisions of the U.S. Supreme Court and the European Court of Human Rights. Here’s the abstract:

The principle of autonomy of religious groups has acquired new importance in the recent decisions of the United States Supreme Court and the European Court of Human Rights. This article will analyze and compare the decisions by these two courts, with a particular focus on the circulation of legal arguments between the two different legal orders.

UK Supreme Court Decides Important Ministerial Employment Case

Yesterday, the UK’s Supreme Court decided an important ministerial employment case, President of the Methodist Conference v. Preston. In many respects, Preston tracks the US Supreme Court’s recent ministerial exception case, Hosanna-Tabor, though the British case does not refer to Hosanna-Tabor and doesn’t explicitly address church autonomy concerns.

In Preston, a Methodist minister sought relief under UK employment law for unfair dismissal. The question turned on whether Preston was an “employee” for purposes of the law, which, in turn, depended on whether she worked for the church under a “contract of employment.”  By a 4-1 vote, the Supreme Court held that she did not.

In the past, Lord Sumption’s opinion explained, UK cases drew a bright line between clergy, who were understood to hold offices of an essentially spiritual nature, and mere employees. But these rulings depended on “social instincts” that do not obtain in today’s more “secular and regulated context.” Today, the question turns on the precise terms that govern a minister’s employment. In other words, the UK courts must apply what Americans would recognize as a “neutral principles of law” approach. Courts must look at the terms of a minister’s employment in light of the surrounding circumstances to see what the parties reasonably intended.

Here, Lord Sumption wrote, the context made plain that Methodist ministers like Preston are not contractual employees. Preston had no contract with the church; her employment was governed completely by the church’s constitution. Her ordination, conferred by the laying on of hands, was understood to be a lifelong covenant. Her stipend was not seen as consideration for her work, but as a subsidy to allow her to serve the Lord. In short, by its terms, ministry in the Methodist Church was “a vocation, by which candidates submit themselves to the discipline of the church for life.” No special circumstances in Preston’s case altered this conclusion.

In its insistence on looking to the particular circumstances of a plaintiff’s employment, Preston echoes the flexible approach to the definition of minister that one sees in Hosanna-Tabor. Unlike the American court, though, the British court didn’t much address the underlying church autonomy values that ministerial exceptions serve. In large part, this reticence results from the different texts the courts were construing. Preston is a straightforward statutory question without constitutional implications; Hosanna-Tabor, by contrast, depends on an understanding of the Free Exercise and Establishment Clauses of the First Amendment.

(H/t: Law & Religion UK).

Another Episcopal Church Property Dispute

This time it’s in South Carolina. Yesterday’s Wall Street Journal reports (subscription required)  on litigation between two rival factions in the Episcopal Diocese of South Carolina. One faction, representing the leadership and about two-thirds of the membership, broke away from the national Episcopal Church in November over the national body’s liberal approach to sexuality and other issues. The minority faction has remained loyal to the national body. Both factions assert ownership of the diocese’s property, including St. Michael’s Church in Charleston (above). In total, the diocese’s church buildings, grounds, and cemeteries are worth around $500 million.

Church property disputes have become increasingly common in America, as local congregations distance themselves from more liberal national church bodies. In the Episcopal Church alone, there have been a dozen such disputes in the past few decades. Human nature being what it is, each side in such a dispute thinks of itself as the true depository of the faith, with a moral, and legal, right to church property.

Civil courts have adopted a couple of different approaches to resolving such disputes, depending on how the relevant legal instruments are written: the “deference” approach, which defers to the decision of the highest authority within the church structure, and the “neutral principles of law” approach, which attempts to resolve disputes using standard property law principles. Both approaches try to promote church autonomy by insulating internal church government and theological questions from civil court review.

I’m not sure which approach the South Carolina courts take. At the moment, the fight is whether the litigation should be in South Carolina courts at all. The national body is seeking to remove the action to federal court, where, I assume, it thinks it will get a more receptive hearing. Whichever court hears the case, the track record of prior litigation suggests the national body should be confident of ultimate victory –though of course it depends on how the deeds, trust documents, and bylaws are written. For civil-law purposes, the Episcopal Church is a hierarchical church, and courts would normally defer to the highest authority within the church–I assume that’s the national body– on ownership of church property. That’s what happened in a recent case involving the Fall Church in Virginia. If the national body wants to recognize the smaller, loyal faction as the rightful owners of church property, the majority faction will likely have to find somewhere else to pray.

Helfand on Implied Consent and the Contraception Mandate

Michael Helfand (Pepperdine University School of Law) has posted What is a ‘Church’?: Implied Consent and the Contraception Mandate. The abstract follows.

This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules related to accomplishing these uniquely religious objectives. Building on this implied consent framework, this Article argues that the First Amendment should protect institutions from the requirements of the contraception mandate so long as these institutions were both organized around a core religious mission and where that religious mission was open and obvious to employees. In such circumstances, courts should presume that employees recognized the unique religious objectives of their employer and thereby implicitly authorized their employer to make rules related to achieving these religious goals.