Posted on by Mark Movsesian · 2 Comments

Can the State Order a Church to “De-Baptize” Someone?

Here’s a puzzling story. According to the Washington Post, a civil court in France has ordered the Catholic Church to remove a disgruntled parishioner from the baptismal register. The parishioner sought the court order after the Church declined to comply with his request to “de-baptize” him:

A decade ago, Rene Lebouvier requested that his local Catholic church erase his name from the baptismal register. The church noted his demands on the margins of its records and the chapter was closed.

But the clergy abuse scandals rocking Europe, coupled with Pope Benedict XVI’s conservative stances on contraception, hardened Lebouvier’s views. Last October, a court in Normandy ruled in favor of his lawsuit to have his name permanently deleted from church records — making the 71-year-old retiree the first Frenchman to be officially “de-baptized.”

“I took the judicial route to get myself de-baptized because of the church’s excesses,” said Lebouvier, speaking by telephone from his village of Fleury, near the D-Day beaches.

The Post article does not say what the cause of action was, or why the civil court believed it had jurisdiction of such matters. It seems baffling. In some European countries, like Germany, church membership has civil law consequences — church members are liable for a “church tax” the government collects on behalf of the religious body.  So I could see why  German courts would have authority to determine who is or is not a church member for tax purposes — though it’s not clear the court’s determination could bind the church itself, without the church’s consent. No such “church tax” exists in France, though. So why is a civil court getting involved? H/T: Mirror of Justice

Posted on by Mark Movsesian

Is a Nun an Employee?

An Orthodox Christian nun in Canada is suing her former convent for wrongful constructive dismissal. The ex-nun alleges that she worked for the convent for 14 years, providing services that included sewing, caring for elderly sisters, and hosting guests, until she quit, allegedly because of mistreatment by the other nuns. She now seeks back pay and damages. The convent argues that nuns are not “employees” in the civil-law sense, but volunteers who vow to live with other nuns in poverty, chastity, and obedience. “Monastic work is for God and not for people,” the convent argues. “It is not a career.” An article from a Toronto newspaper about the lawsuit is here.

Posted on by Mark Movsesian

Same Name, Different Case

American law and religion scholars know the case of St. Nicholas Cathedral, a Supreme Court decision from the 1950s, about which Rick Garnett has  written recently. Briefly, the case involved a dispute over a Russian Orthodox cathedral in New York between two parish councils, one loyal to the Moscow Patriarchate and the other loyal to the Russian Orthodox Church Outside Russia (ROCOR), a group that broke away from the Communist-dominated Patriarchate in the twentieth century. It turns out that a similar dispute has been making its way through the French courts. Since the fall of Communism, the Moscow Patriarchate and ROCOR have reestablished communion, and the Patriarchate has been reasserting its right to church properties around the world, including St. Nicholas Cathedral in Nice (above), an impressive, onion-domed structure, reputedly the largest Orthodox cathedral in Western Europe. The local parish council objected to returning St. Nicholas to Moscow and a six-year legal battle ensued. The battle ended last week, when the local council sadly turned over the keys to the Patriarch’s representative. The story is here, from a local paper (in French).

Posted on by Mark Movsesian · 2 Comments

NY High Court Rules against Parishioners in Catholic Church Property Dispute

Another state high-court ruling highlighting the importance of the neutral principles of law doctrine in church property disputes. This week, the New York Court of Appeals dismissed a lawsuit that parishioners of Our Lady of Vilnius Roman Catholic Church in downtown New York City (left) had brought against the church’s board of trustees, seeking to overturn a decision to dissolve the parish and demolish the church building. In 2007, the Catholic Archdiocese of New York, citing the parish’s declining membership and the decayed state of the church building, directed that the parish be dissolved; shortly thereafter, the church’s board of trustees voted to demolish the church building. A group of parishioners then sued, arguing that as members of the parish they, not the board of trustees, had the ultimate say. Applying the neutral principles of law doctrine, the Court of Appeals examined the relevant legal instruments and rejected the parishioners’ argument. The church held the deed, the court explained, and the church’s bylaws gave the board of trustees, not the parishioners, control of the property, to be exercised in conformity with archdiocesan directives.  Our Lady of Vilnius Church, about 100 years old, was the traditional Lithuanian Catholic parish in New York City. The case is Blaudziunas v. Egan (N.Y. 2011).

Posted on by Mark Movsesian · 1 Comment

Georgia Supreme Court Decides Two Church Property Disputes

The Georgia Supreme Court last week decided two important church property cases. The rulings, handed down the same day, favor national bodies in disputes with local congregations and add nuance to the “neutral principles of law” doctrine, associated with the US Supreme Court’s holding in Jones v. Wolf, which allows judges to resolve intra-church disputes by interpreting relevant legal documents in terms of neutral civil law principles. The first case, Rector, Wardens, and Vestrymen of Christ Church, Savannah v. Bishop of the Episcopal Diocese of Georgia, applied the neutral principles doctrine to rule that an Episcopal parish in Savannah held property in trust for the parent body, the Protestant Episcopal Church in the USA. As a consequence of this ruling, the parish, which has seceded from the national body and affiliated itself with an African diocese, must vacate the property and turn it over to the national church. In the second case, Presbytery of Greater Atlanta v. Timberridge Presbyterian Church, the court similarly concluded, again under the neutral principles doctrine, that a local Presbyterian congregation held its property in trust for the national body, the Presbyterian Church-USA.

Two points about these cases. First, they demonstrate that “hierarchical churches” – and both the Episcopal and Presbyterian Churches qualify as such for purposes of American law – have learned, presumably in response to earlier court decisions, to amend and in some cases draw up church rules in a way that insures that local congregations hold property only in trust for the national body. Second, one typically thinks of the neutral principles doctrine in the context of “external” documents like deeds, contracts, and trust instruments.  In these cases, however, the court applied the doctrine to “internal” church rules. There’s a danger in applying the doctrine in that context. Canon law may operate in ways that lawyers trained in the civil law system do not fully appreciate; from the perspective of the church, “neutral” civil law principles may not seem neutral at all. In these two cases, the court believed, that was not a problem, as the relevant canons did not implicate religious principles. In future cases, that may not be so clear.

Posted on by Marc O. DeGirolami

Transcript of Oral Argument in H-T, and Some Questions/Reactions

For those who may be interested, here is the transcript of the oral argument in H-T.  After the jump, some thoughts and/or questions.

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Posted on by Marc O. DeGirolami

Ministerial Exemption Miscellany

I was pleased to take part last night in an event at St. John’s Law School dealing with the ministerial exemption and the Hosanna-Tabor case.  The case and the doctrine have been discussed a good deal already, but for those who can’t get enough, here are some additional scattered thoughts.

1.  A perhaps somewhat pedantic point about names first.  I prefer “ministerial exemption” to “ministerial exception.”  From what I have seen in the briefing of the case, I am in the great minority.  My reasons are historical and linguistic.  The historical reason is that the doctrine of the ministerial exemption first arose in American law in the McClure case out of the Fifth Circuit in 1972, and was in some measure a reaction to the 1964 Civil Rights Act.  At that point, the free exercise approach in operation was the substantial burden/compelling interest test announced in the 1963 case, Sherbert v. Verner.  The idea was that “exemptions” from generally applicable laws are constitutionally required in certain circumstances, and the ministerial “exemption” was part of the general doctrinal geist.   Read more

Posted on by Mark Movsesian

Garnett on Kedroff v. St. Nicholas Cathedral

Rick Garnett has posted a thoughtful  essay on the relatively little-known case of Kedroff v. St. Nicholas Cathedral, which the Supreme Court decided in 1952.  At the height of the Cold War, a dispute arose between the Moscow Patriarchate, the supreme head of the Russian Orthodox Church around the world, and the Church’s American diocese.  The American diocese had elected its own bishop and refused to acknowledge the bishop appointed by Moscow, whom the Americans viewed, undoubtedly correctly, as compromised by the Soviets.  The New York State Legislature sided with the Americans and passed a law that, in effect, reorganized the Russian Orthodox Church in America and gave control over church property to the local bishop.

The Supreme Court held the law unconstitutional.   New York had no authority to reorganize a church and interfere in what was, in the end, an internal church matter.  Under the First Amendment, a religious body could organize itself, and settle internal controversies, according to its own ecclesiastical rules.  The existing rules of the Russian Orthodox Church in America gave the Moscow Patriarchate the right to appoint the bishop for the American diocese, and New York would have to defer.

As Rick points out, this case is noteworthy for two things.  First, it testifies to the Read more