Matthew Goldammer (Notre Dame Law School) has posted A Defense of the Compulsory Deference Approach for Church Property Litigation (Forthcoming in the Notre Dame Journal of Law, Ethics & Public Policy) on SSRN. Here is the abstract:
The First Amendment’s Establishment Clause, in prohibiting Congress from making any law “respecting an establishment of religion,” sets forth the separation of church and state so recognizable in American society. The First Amendment’s Free Exercise Clause prevents Congress from “prohibiting the free exercise” of religion. When disputes arise within religious communities, such as when competing factions both claiming to be the “true church” seek to secure church property rights, the interplay between the First Amendment’s two religion clauses becomes particularly nuanced: the opposing parties seek an impartial tribunal (i.e., a secular court of law) to settle the dispute, but the tribunal must avoid interfering in the religious community’s internal affairs.
In response to this conundrum, American courts have oscillated between two judicial postures that the United States Supreme Court has found to be constitutionally permissible: (1) the “compulsory deference” method preferred in the 1871 case Watson v. Jones, providing that for a hierarchical church (i.e., a church organized where local branches are situated within a larger structural tier), the secular tribunal should defer to the decision of the church’s hierarchical authority; and (2) the “neutral principles” method endorsed in the 1979 case Jones v. Wolf, whereby courts are permitted to review secular documents (e.g., property deeds, church constitutions, etc.) to determine for themselves which faction should triumph—even if, in the case of hierarchical churches, the church’s higher structural level has already decided. The “neutral principles” judicial posture allows a secular court to rule for one party while the church hierarchy has supported the opposing party, thus creating a conflict between secular and religious interests that the “compulsory deference” method avoids.
This Essay argues that in cases involving the Roman Catholic Church, secular courts should use the compulsory deference method to resolve those property disputes. This position is warranted not only because the Catholic Church is hierarchically arranged but also because of the particular ways that the Catholic Church vests property ownership. This Essay concludes that the compulsory deference approach is the only constitutionally permissible method that ensures that secular courts do not infringe upon the Catholic Church’s free exercise rights.