Doctrinal Basis of Government Resolution of Religious Disputes

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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.

Since at least the early 1800s, the Supreme Court has resolved religious entities’ legal disputes over property rights,1 focusing in part on the legal rights attached to the corporate form of the religious bodies.2 In Watson v. Jones, issued in 1871, the Court reiterated that “religious organizations” come before the court in the same posture as other entities organized for charitable purposes, saying that “their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints.” 3 However, the Supreme Court also articulated limits on civil courts’ ability to adjudicate religious disputes, although at first it did not expressly ground these limitations in the Constitution’s Religion Clauses.4

Specifically, Watson involved a religious schism and a property dispute. After some members of a congregation disagreed with the national church’s anti-slavery views, the local church separated “into two distinct bodies, with distinct members and officers, each claiming to be the true Walnut Street Presbyterian Church” and entitled to its property.5 A federal court had concluded that the faction recognized by the national governing body was entitled to the property, and the Supreme Court affirmed.6 The Court said that where a congregation is subordinate to “superior ecclesiastical tribunals,” civil courts should defer to the resolution of any religious issues by the “church judicatories.” 7 More broadly, the Court said that civil courts may not adjudicate any matter “which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” 8 Allowing these decisions “of ecclesiastical cognizance” to be reviewed by secular courts “would lead to the total subversion” of the religious unions, which the Court suggested would be inconsistent with the guarantees of free exercise of religion and no religious establishment.9 The Supreme Court said that United States laws created these guarantees, but did not specifically reference the Religion Clauses10 as the Court originally understood the Religion Clauses to apply only to the federal government.11 Although the adoption of the Fourteenth Amendment in the 1860s imposed the First Amendment’s limitations on the states,12 at the time of Watson's decision in 1871, the Supreme Court had not yet recognized this incorporation of the Religion Clauses.13

The Supreme Court expressly grounded Watson in the First Amendment in Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church.14 Kedroff was decided in 1952, after the Court had expressly held the First Amendment to be incorporated against the states.15 After the Russian Revolution prompted disputes over the governance of the North American Diocese of the Russian Orthodox Church, New York enacted a law transferring control of the state’s Russian Orthodox churches from the “central governing hierarchy” in Russia to the Russian Orthodox Church in America.16 The Supreme Court held in Kedroff that this law violated the Constitution by prohibiting “the free exercise of religion” and breaching the “rule of separation between church and state.” 17 The Court highlighted that the state statute required churches in New York to “conform” to the religious doctrine “of the Eastern Confession.” 18 It also expressed concern that the state’s action was apparently based on a determination that the Russian Orthodox Church in America would more faithfully effectuate the purposes of the religious trust.19 Ultimately, the Court said that the Constitution protected the “freedom to select the clergy, where no improper methods of choice are proven.” 20

The Court remanded the Kedroff case back to New York state court, which again transferred control of state churches to the Russian Church in America—but this time, on grounds of the common law rather than the state statute.21 When the dispute returned to the Supreme Court in Kreshik v. St. Nicholas Cathedral of Russian Orthodox Church, the Court held that the state court had acted unconstitutionally because, like the state statute, the court’s common law decision was impermissibly premised on the idea that the Russian Orthodox Church in America would more faithfully carry out the religious trust.22 Kreshik therefore confirmed that courts, as well as legislatures, may violate the Constitution’s Religion Clauses by resolving issues of ecclesiastical government.23

1: See Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 45, 55 (1815) (ruling that an Episcopal church held title to property even after disestablishment of the Church of England in the state).
2: See Pawlet v. Clark, 13 U.S. (9 Cranch) 292, 334, 336 (1815) (ruling that an Episcopal church was not entitled to a glebe where the church had not been legally recognized either by England or by the state of New Hampshire, and was instead “a mere voluntary society of Episcopalians” ).
3: 80 U.S. (13 Wall.) 679, 714 (1871).
4: Id. at 729; see also Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 445, 447 (1969) (noting that Watson was “decided before the application of the First Amendment to the States but nonetheless informed by First Amendment considerations” ).
5: Watson, 80 U.S. at 717.
6: See id. at 735.
7: Id. at 722–23, 727. See also Shepard v. Barkley, 247 U.S. 1, 2 (1918) (affirming decision citing Watson to defer to church authority’s resolution of a property dispute); cf. Bouldin v. Alexander, 82 U.S. (15 Wall) 131, 137, 139–40 (1872) ( “In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church.” ).
8: Watson, 80 U.S. (13 Wall.) at 733. The Supreme Court phrased the issue in terms of jurisdiction, saying that civil courts could “exercise no jurisdiction” over a subject matter that was “strictly and purely ecclesiastical in its character.” Id. By contrast, in Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929), the Court concluded that federal courts had jurisdiction over a religious dispute where the defendant was “a juristic person” and the subject matter involved the terms of a trust.
9: Watson, 80 U.S. (13 Wall.) at 728–29.
10: See id. at 728 ( “In this country the full and free right to entertain any religious belief, to practice any religious principle and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” ).
11: See Permoli v. New Orleans, 44 U.S. (3 How.) 589, 609–10 (1845) (rejecting a challenge to an ordinance prohibiting certain Catholic burials as a matter “exclusively of state cognisance,” holding, inter alia, that the U.S. Constitution did not protect “the citizens of the . . . states in their religious liberties” ), superseded by constitutional amendment, U.S. Const. amend. XIV.
12: Wallace v. Jaffree, 472 U.S. 38, 49 (1985).
13: See Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights.
14: 344 U.S. 94, 116 (1952) (saying that Watson “radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation” and that its guarantees “must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference” ).
15: Id. at 100 & n.6.
16: Id. at 105–07.
17: Id. at 107, 110. Subsequent caselaw clarified that resolving controversies over religious doctrine or polity also raises Establishment Clause concerns. See Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).
18: Kedroff, 344 U.S. at 108.
19: Id. at 109, 117–18.
20: Id. at 116.
21: 363 U.S. 190, 190–91 (1960).
22: See id. at 191 (citing Kedroff, 344 U.S. at 117–18).
23: See id.