The Watcher Cat

The Watcher Cat

Sunday, December 21, 2008

The PB on the Wa Po; Decision in Virginia

Interviewed by Sally Quinn, harvested from here.


My own, very brief observation on the lower court decision in Virginia awarding the property to the parish is that the statute, which was passed almost a half century before the Supreme Court held that the First Amendment applies to the states as well as the federal government, was clearly constitutional under that pre-14th Amendment order, but equally clearly does not stand scrutiny under Jones v. Wolf, which stated that "the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization." The Court did state that "the First Amendment does not dictate that a State must follow a particular method of resolving church property disputes," but made clear that the civil courts could not (1) require a particular form of polity of a church; or (2) override a church's own doctrinal and polity determinations without violating the First Amendment. I think, that by imposing a congregational property preference, the Virginia statute is in conflict with Jones, especially with this statement by the High Court:
If, in fact, Georgia has adopted a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means, we think this would be consistent with both the neutral principles analysis and the First Amendment. Majority rule is generally employed in the governance of religious societies. See Bouldin v. Alexander, 15 Wall. 131 (1872). Furthermore, the majority faction generally can be identified without resolving any question of religious doctrine or polity. Certainly there was no dispute in the present case about the identity of the duly enrolled members of the Vineville church when the dispute arose, or about the fact that a quorum was present, or about the final vote. Most importantly, any rule of majority representation can always be overcome, under the neutral principles approach, either by providing, in the corporate charter or the constitution of the general church, that the identity of the local church is to be established in some other way, or by providing that the church property is held in trust for the general church and those who remain loyal to it. Indeed, the State may adopt any method of overcoming the majoritarian presumption, so long as the use of that method does not impair free exercise rights or entangle the civil courts in matters of religious controversy.
Here, the saving factor that allowed a "majority vote presumption" approach, the rebuttal of the presumption through an amendment to the constitution of the general church--has been invalidated by the court, following the statute, and thwarting the polity of TEC.

Is this a guarantee on appeal? Of course not; the Court could revise Jones, or even scrap it. But I believe that decades of settled expectations of the parties, and allowing churches the maximum autonomy is a sound, workable interpretation of the Constitution, and would replace it with radical indeterminancy and the prospect, unsavory to both, of entangling church and state.

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