Churches, Members, and the Role of the Courts: Toward a Contractual Analysis
Churches, Members, and the Role of the Courts: Toward a Contractual Analysis
Kent S. Bernard
Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Kent S. Bernard, Churches, Members, and the Role of the Courts: Toward a Contractual Analysis, 51 Notre Dame L. Rev. 545 (1976). Available at: http://scholarship.law.nd.edu/ndlr/vol51/iss4/1
TOWARD A CONTRACTUAL ANALYSIS
Kent S. Bernard*
I. Introduction
Much has been written on the relation between church and state,
particularly in regard to education, an area of litigation in which members and
their organizations unite in seeking civil aid.' Little critical work has been done,
however, on the problem of how the state should react when an individual
invokes the civil courts against his religious organization.2 This problem arises in
the context of various disputes between religious organizations and their
members: when members are expelled from the group, when a clergyman is fired, or
when one group of members feels that another is taking control of the
organization illegitimately. In these situations, it is not uncommon for the aggrieved
parties to seek help from a court of law. The cases often are highly emotional,
and are made yet more delicate by their involvement of the basic first amendment
religious guarantees.
When faced with these challenges, courts have reacted in
various ways.
For example, let us assume a not unusual set of facts. A member of a
religious organization is expelled from the group. He feels that the expulsion was
wrongful, and brings suit in civil court to compel his reinstatement. How should
the court handle such a case? Some courts have simply refused to get involved,'
reasoning that church membership is not an interest which they would protect.
Other courts have looked to state corporation law (in cases where the
organization has incorporated) to determine only whether the state law requirements
* Associate, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa.; J.D.,
University of Pennsylvania, 1975; B.A., Colgate University, 1972.
The author gratefully acknowledges the help and encouragement of Professors Bruce
Ackerman of the Yale Law School, and Peter Low of the University of Virginia Law School.
Their help in reading and criticizing earlier drafts of this article was invaluable. Any flaws or
oversights which may still remain are, of course, solely the author's responsibility.
1 See, e.g., W. GELHORN & R. KENT GREENAWALT, THE SECTARIAN COLLEGE AND THE
PUBLIC PURSE (1970); V. LANNIE, PUBLIC MONEY AND PAROCHIAL EDUCATION (1968);
Choper, The Establishment Clause and Aid to Parochial Schools, 56 CALIF. L. REV. 26
(1968); Iaskell, Prospectsfor Public Aid to ParochialSchools, 56 MINN. L. REv. 159 (1971);
Morgan, The Establishment Clause and Sectarian Schools: A Final Installment? 1973 Sup.
CT. REv. 57; Valente, Aid to Church Related Education-New Directions Without Dogma,
55 VA. L. REv. 579 (1969); Comment, Constitutionalityof Tax Credits as a Means of
Providing Financial Assistance to ParochialSchools, 52 B.U.L. Rv. 871 (1972); Comment, New
Trends in Education and the Future of ParochialSchools, 57 CORNELL L. REv. 256 (1972);
Comment, Voucher Systems of Public Education after Nyquist and Sloan: Can a
Constitutional System Be Devised? 72 MICe. L. Rnv. 895 (1974).
2 See W. STRONG, Two LECTURES UPON THE RELATIONS OF CIVIL LAW TO CH1URCH
POLrry, DISCIPLiNE, AND PROPERTY (1875); C. ZOLLV"ANN, AMERICAN CML CHURCH LAw
(1917) [hereinafter cited as ZOLLMANN], (while Zollman did write another edition in 1933,
American Church Law, the older version is more pointed and pungent); Dusenberg,
Jurisdiction of Civil Courts over Religious Issues, 20 OHIO ST. L.J. 508 (1959) [hereinafter cited as
Dusenberg]; Patton, The Civil Courts and the Churches, 54 U. PA. L. REv. 391 '(1906).
3 See, e.g., Mount Olive Primitive Baptist Church v. Patrick, 252 Ala. 672, 42 So.2d 617
(1949).
have been fulfilled,4 even if this required splitting the church into "civil" and
"religious" parts for analytical purposes.5 And some courts have gone directly
into the fray, and have tried to determine which side was correct as a matter
of religious law.'
While each of these approaches may have certain features which commend
it, the courts using them have not developed any coherent analytic structure
which would enable them to balance the policy interests at stake. This article
proposes such a structure, premised on a contractual view of the legal effect of
religious group membership, a view which has several advantages. A contract
approach is consistent with traditional judicial practice; and, indeed, the roots
of such an approach can be found in partial form in some of the many existing
theories for judicial treatment of church-member conflicts.7 This contract theory,
then, would not require a court to grasp a radically new or difficult conceptual
structure. Also, current constitutional law and theory (...truncated)