The Code of Canon Law and Civil Law
hTe C ode of Canon Law and Civil Law
James E. Serritella
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THE CODE OF CANON
LAW AND CIVIL LAW
JAMES E. SERRITELLA
We are familiar with the maxims that the civil law follows the canon
law, or that neither the government nor the Church should enter into the
precincts of the other.' Indeed, Justice Hugo Black has enshrined these
reassuring generalities in a much broader constitutional generality: "The
First Amendment 2 has erected a wall between Church and state. That
wall must be kept high and impregnable. We could not approve the
slightest breech."3 Nonetheless, in recent years we have been confronted
with a number of cases in which the civil law does not appear to follow
canon law, and the government, by court or administrative action, very
definitely has entered upon the Church's "precincts."
Two cases immediately come to mind. In the first, a Missouri state
court ordered the Bishop of Jefferson City to restore side altars to a
parish church from which they were removed following a heated dispute
between the parish priest, who was supported by the Bishop, and the
parishioners, who opposed his decision to remove them.4 In the second, a
New Hampshire state court allocated to itself the jurisdiction to decide
whether the Bishop of Manchester had properly carried out his duties
with respect to a Diocesan Catholic school.'
Other situations also come to mind. For example, the EEOC may
insist that federal civil rights laws relating to sex and pregnancy prohibit
the Bishop from terminating an unmarried, pregnant teacher-or, even
better, a religion teacher 7-from her employment in a parochial
elemenSee Everson v. Board of Educ., 330 U.S. 1, 14-15 (1947).
"Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof." U.S. CONST., amend. I. The first amendment is often divided into two
religion clauses: the "Establishment Clause" and the "Free Exercise Clause."
" Everson v. Board of Educ., 330 U.S. 1, 18 (1947).
' Struemph v. Behan, No. 10132, slip op. (Cir. Ct. of Osage County Mo. 1982), rev'd sub.
nom. Struemph v. McAuliff, No. 46061, slip op. (Mo. Ct. App. Sept. 6, 1983).
' Reardon v. Lemoyne, 122 N.H. 1042, 454 A.2d 428 (1982).
' Dolter v. Wahlert High School, 483 F. Supp. 266 (N.D. Iowa 1980).
' Walthal v. Seven Holy Founders School, No. 81 C 5422 (N.D. Ill.).
tary school. Also, we are only too aware of the difficulties in
draftsmanship encountered when a diocese or a religious order wants to incorporate
separately one of its ministries. How do we maintain control and still
insulate from liability?
These realities would have us restate the maxim to say that "the civil
law sometimes follows the canon law." Of course, we already know that
the "high and impregnable" wall is only a line that we dimly perceive.'
More seriously, these realities actually point to a broader and less
fortunate conclusion. There is no universally applicable legal doctrine
that governs the relationship between civil and canon law in the United
States today. There is no concordat giving us a road map of specific
agreements on specific issues as is the case with many other countries.
Instead, we have a few sound principles rooted in an undergrowth of
This Article attempts to illuminate a few of those sound principles. It
is not by any means exhaustive, and certainly it is not the last word on
the subject. In fact, it is hoped that it prompts the kinds of questions and
criticisms that will help us advance our knowledge in this area of the law.
THE AMERICAN SYSTEM, THE CHURCH AND ITS LAWS:
AN ANALYTICAL ORIENTATION
The American legal system permits institutions to function according
to their own rules, as long as their rules and conduct do not violate the
general laws of the land.' In fact, when a member claims that an
institution has not followed its own rules, a civil court will ordinarily defer to
the appropriate decisionmaking body within the institution. If the
member claims that the wrong body within the institution made the decision,
a civil court will consider that claim and make its own determination as
to what is the proper decisionmaking body. If the member claims that the
decisionmaking body rendered the wrong decision, a civil court will at
least consider that claim to determine whether fundamental due process
was observed. Of course, a claim that the institution violated some
general law of the land, will be dealt with in the same way as a similar claim
about any person or entity.
The Church is a special kind of institution, and the first amendment
to the United States Constitution puts a special gloss on its right to
function according to its own rules. As in the case of secular institutions, when
a member claims that a church has not followed its own rules, a civil
court will ordinarily defer to the appropriate decisionmaking body within
the church.' ° If the member claims that the wrong body within the
church made the decision, a civil court will consider that claim and make
its own determination of the proper decisionmaking body, unless doing so
would require it to decide a religious issue. 1
Again, if the member claims that the decisionmaking body made the
wrong decision, a civil court will only consider that claim if doing so
would not require it to resolve a religious issue.2 When there is a claim
that the Church violated some general law of the land, the court should
decide whether the Church's religious status confers any special
The Roman Catholic Church is a special kind of church. The rules
governing its structure and operations are found in the Code of Canon
Law and other documents. The civil law treats these in a fashion similar
to the analogous documents or principles of any other denomination.
Litigation of cases containing the kinds of questions just sketched
touches upon three important points: (A) presenting the appropriate
religious documents or other factual matters to the court; (B) demonstrating
their relevance to the issues in the case; and (C) dealing with the
emerging Church-state issues.
A. Presenting the Appropriate Religious Documents or Other Factual
Matters to the Court
Under the Federal Rules, the determination of foreign law, such as
the Code of Canon Law, is treated as a question of law:
A party who intends to raise an issue concerning the law of a foreign
country shall give notice in his pleadings or other reasonable written notice. The
court, in determining foreign law, may consider any relevant material or
source, including testimony, whether or not submitted by a party or
admissible under the Federal Rules of Evidence. The court's determination shall
be treated as a ruling on a question of law.' 4
Under the law of some states, like Illinois, the determination of
foreign law, such as the Code of Canon Law, is treated as a question of fact
for the court, not the jury to determine:
Since judicial notice is not taken of the law and official documents of a
foreign country they must be proved, except to the extent that they may be
self-authenticating. Under the best evidence rule if there is no showing that
the foreign law is statutory it may be proved by persons qualified by
knowledge and experience. If it is statutory the statutes should be produced
either in the form of statute books identified as authentic or by copies
properly exemplified and authenticated by the seal of a qualified officer.' 5
However the Canon Law or other Church governing documents get
into evidence, the matter becomes interesting when there is a conflict
over what is the appropriate governing principle. Remember, the Code of
Canon Law is part of a 2,000-year-old living and growing body of law. It
has to be read in light of previous codes, conciliar documents, papal
pronouncements with various degrees of binding impact, documents of
national bishops' conferences, and substantial amounts of discretion left to
ordinaries, religious superiors, and pastors."6 Accordingly, the parties can
differ as to which document or provision applies to the matter at issue.
They may disagree over the interpretation of a given provision or how it
should be applied to a particular situation. They may agree that a certain
provision applies, but disagree as to whether another provision alters or
nullifies the impact of the first provision. The conflict may take on
various forms and there may be honest opinions on more than one side of a
Civil courts have a very limited role in relation to such conflicts.'" As
a threshold matter, a court must determine whether resolving the conflict
would require it to decide a religious issue. A civil court, of course, is
prohibited from deciding religious issues, and so a conflict over what may
be the appropriate principles of Church law could curtail the court's
ability to address the case at all.
The law on this point is in a somewhat primitive state of
development, and there do not seem to be well-developed legal tools for dealing
with even clearly spurious claims of conflict. For example, in a recent case
an attorney claimed that the Catholic Church was not hierarchical, but
4 FED. R. Civ. P. 44.1.
'5 ILL. R. EVID. 9:08; see also Atwood Vacuum Mach. Co. v. Continental Casualty Co., 107
Ill. App. 2d 248, 262-63, 246 N.E.2d 882, 890 (1969).
" Codex Juris Canonici, Acutoritate Joannis Pauli P. P. II Promulgatus vii-xiv.
7 Maryland and Virginia Eldership v. Church of God, 396 U.S. 367, 367 (1970).
congregational. The court merely ignored the claim and decided the case
as if it were never made. A possible alternative approach would be to
require the party making the claim to substantiate it with expert
testimony. Experts being what they are, this approach may have limited
utility. Another possible approach would be to use the fraud exception to the
non-civil court review rule, 8 but this is probably both too much and too
little for most cases.
Thus, there may be no way for the civil court to address such a
conflict because any approach available in a given case may require the court
to decide as religious issue. As a result, resolution of this threshold issue
may end the whole case, or at least have a very substantial impact on its
Demonstrating Relevance to the Issues in the Case
Although we can discuss any number of problems relating to the
relevance of Church law in a given case, I believe there is one basic problem
which is worth special attention. This problem arises when a party, a
government agency, or the court asks, "Why do we have to deal with Church
law at all? Why can't this case be resolved like any other case?" These
questions, or some variation of these questions, are asked in many ways
in many different situations.
Certainly, Jones v. Wolp 9 and cases like it support those who ask the
questions. These cases and the questions themselves may even point to
the direction the resolution of certain kinds of Church-state cases
increasingly may take in the years to come.
Take an employment contract as an example. If a Church employee
has a written contract, how far beyond the express terms of that contract
can or should a court go in resolving an employment dispute? There is, of
course, the question of what are the express terms of the contract. To
illustrate, we begin with a signed writing: "St. Edna School employs
James Jones as a dietician for one year at a salary of $10,000." We next
move to any documents that the signed writing expressly incorporates by
reference. "This contract shall be governed by the rules and regulations
of St. Edna School as they are now and as they may be amended from
time to time." If there is no express incorporation language in the signed
writing, we look to the rules and regulations of St. Edna School to see if
they contain a provision that relates to employment contracts, and to
determine whether there is a policy of bringing this provision to the
employee's attention. "These rules and regulations as they may be amended
from time to time govern St. Edna's relationship to all of its employees.
8 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 US. 696, 712-13 (1976).
19 443 U.S. 595 (1979).
Accordingly, it is the policy of St. Edna School that these rules and
regulations be regularly brought to the employees' attention and that their
significance be fully explained."
Let us suppose that either the contract or the rules contain a
provision that the employment relationship at St. Edna's is also governed by
the appropriate provisions of Church law relating to a bishop's and a
pastor's responsibilities for school employees. Even better, let us suppose
that there is no such provision.
When the case comes to court, the judge will have before him, or her,
the signed contract and St. Edna School's rules and regulations. Both the
school and the employee will probably produce Church law experts giving
different interpretations of the bishop's and pastor's responsibilities
under Church law regarding school employees. What should the court do?
The court could conclude that the resolution of the dispute over the
bishop's and pastor's responsibilities would require it to resolve a
religious issue, and therefore decline to proceed further with the case. The
court could also rule that this dispute is irrelevant and decide the case on
the basis of the signed writing and the rules and regulations, assuming it
can do so without addressing a religious issue. This second approach
would certainly be more tempting if the contract papers did not contain a
provision relating to the bishop's authority.
We concede the appeal of the neutral principles approach for this
kind of case. The court can sidestep a religious dispute, and even believe
that it is doing justice. After all, how can the poor employee be expected
to know his duties and responsibilities if even the experts disagree? Why
should the employment relationship be burdened with such obscurity and
uncertainty? The neutral principles approach, however, completely
negates the relevance of Church law.
The government regulation context is another area in which the
relevance of Church law is frequently questioned. We have all heard some
version of this song sung by some government administrator. "St. Edna's
is a school. Our jurisdictional standard for schools is $1,000,000.00 in
gross revenues per year. St. Edna's meets this standard. Therefore, St.
Edna's is covered by-you name it." When we respond that St. Edna's is
a religious school and that its religious status should confer a complete or
partial exemption, the administrator goes back to his song. "We are
religiously neutral. We don't look at religious status. We are not
antireligious or anti-Catholic. We have nothing in our regulations regarding
It is here that the odyssey either begins or ends. How do we
demonstrate to the administrator or to a reviewing court that the religious
status is relevant? What is the place of Church law?
If seems that we should begin with the rule that the United States
Supreme Court enunciated in NLRB v. The Catholic Bishop of Chicago2.0
If a statute does not by its express terms cover religious organizations,
and coverage would result in a church-state conflict, then the statute
must be construed so as not to cover religious organizations. The key
elements of the rule are no express coverage in the statute and a
churchstate conflict. We are either fortunate enough to have a statute that is
silent on the coverage issue or we are not. Assuming that we are
fortunate, then we must focus on whether coverage would result in a
churchstate conflict. If it does, then the statute should be interpreted as not
If we are not fortunate and the statute expressly requires religious
institutions to be covered, a different result is obtained. We must still
focus on whether coverage would result in a church-state conflict. If it
does, then in this case the statute should be held unconstitutional.
We, of course, must be very careful about finding church-state
conflicts. The walls we build in the exemption area will rise to greet us when
it comes time to evaluate the constitutionality of positive benefits flowing
from the government.
In such cases, Church law is relevant to the description of the
religious character of an institution and the demonstration of a church-state
conflict. For example, if the institution at issue is a seminary, the Church
law relating to seminaries might show the importance of doctrinal purity.
If there is likelihood that coverage by a particular statute would require a
seminary to employ a heretic as a religious counselor, then there is
arguably a church-state conflict.
In brief, there are problems with the relevance of Church law that
may go the the heart of a given case and seriously affect the outcome. We
may have to lay a very carefully prepared foundation if we want to use
Church law in these kinds of cases.
Dealing with the Emerging Church-State Issues
The amount of litigation over employment and property issues seems
to be increasing at an accelerated rate. I will now turn to a brief
discussion of some of the kinds of church-state issues that are emerging from
these kinds of cases.
Let us suppose that Grace Smith is employed as a teacher at St.
Edna School in the Diocese of Blackacre. There is no writing evidencing
the relationship. There are no written school employment policies, nor are
20 440 U.S. 490 (1979).
there written diocesan employment policies, except for a simple
statement that all teachers are employed from year to year in accordance with
the law of the Roman Catholic Church.
Let us also suppose that the pastor of St. Edna's discovers that Grace
is pregnant out of wedlock and fires her immediately. Grace is outraged
and files suit for improper termination in a civil court.
The pastor defines the suit by calling a Church law expert as a
witness. The expert testifies that under Catholic Church law the pastor has
the responsibility of maintaining the religious orthodoxy of the parish
school, and that the presence of an unmarried pregnant teacher violates
the appropriate atmosphere. Therefore, the pastor was justified in firing
her. No other evidence is presented on either side. The civil law follows
Church law. Case closed.
But life is not so easy. Since Grace Smith has filed the suit she is
likely to introduce some evidence. In fact, let us suppose she calls a
Church law expert on her side of the case. The expert testifies that under
Catholic Church law pastors are required to accord employees a hearing
prior to making a decision to terminate. Had Grace Smith been accorded
such a hearing, she would have demonstrated that she was raped by a
demented prison escapee. She would have argued that since she was a
Catholic, she could not morally have an abortion, and her pregnancy was
living testimony of the Church's teaching on this issue. Therefore, her
presence constituted a positive contribution to religious orthodoxy at St.
Edna School and the pastor was wrong in terminating her.
The court would most likely rule that resolution of this dispute
would require it to decide one or more religious issues, and that the
Constitution prohibited it from doing so. Case closed. The termination
stands. It is possible that the court might conclude that it could at least
decide whether or not Grace should have been accorded a hearing without
deciding a religious issue, and rule accordingly.2" The pastor might be
able to prevent such a ruling by having his Church law expert testify that
Church law does not require a hearing before a termination.
Of course, life is still not quite so easy. No school of any size and
certainly no diocesan school system could address the full range of
employment issues by a single reference to Church law. There is at least an
organizational need for some policies and contracts. After all, a principal
would want to know that when he or she arrived in the morning, there
would be a given number of teachers who would teach certain subjects or
grades and that they would spend the requisite hours at the school. The
principal would also like to know that this was going to happen on a daily
basis for an established number of weeks. In a word, we cannot stay in
the "state of nature" where every dispute is a religious dispute and
management always wins.
Accordingly, let us suppose that the Diocese of Blackacre had a
school policy requiring pastors to notify all teachers by May 1 that their
contracts will or will not be renewed for the following year. Assume that
the pastor discovers that Grace is pregnant in late April. Under the policy
he can give her a notice of non-renewal, she can finish out the school year
and then go her own way. No litigation. This is better than the state of
nature in which the pastor won the case on the basis of a general
reference to Church law.
The conflict arises though, when the policy or contract does not help
accomplish what the pastor and bishop believe to be the proper result.
For instance, the Diocese of Blackacre has a policy that requires a board
of three teachers from the allegedly offending teacher's own school to
conduct a hearing and render a binding decision regarding the
termination. Let us also suppose that Grace Smith is a very popular teacher at
St. Edna's and that no three teachers at the School would ever vote to
discharge her for any reason.
The pastor is caught between this policy and his canonical
obligations with respect to religious orthodoxy of the School. If he fires the
teacher anyway, he is likely to be subject to a lawsuit. Given the existence
of a specific written policy the court might find that Church law is not
even relevant to the case. As a result, the pastor faces the prospect of
having the court order St. Edna's to reinstate the teacher with back pay.
If the teacher is a priest or a religious teaching what the bishop or
pastor believes to be heresy, the same quandary may apply. The court
may conclude that the general school policies cover all employees. The
policies may themselves so provide, or there may be separate policies
which are even more protective of the priest or religious. Of course, the
bishop or pastor may be able to speak to the appropriate ecclesiastical or
religious superior who can rely on canonical obedience. But even if these
superiors agree with the bishop or pastor, they may decline to act for
some unrelated reason or may be having their own church-state conflict
with the alleged offender.
I am obligated to say a word about the civil rights acts and
employees. A general theory of the relation of the civil rights acts to the various
kinds of religious institutions has not been determined. This is
particularly evident in the employment context. How does one deal with the civil
rights claim relating to age, sex, or race discrimination when the actual
motivating factor was religion? What right does the religious institution
have to discriminate on the basis of religion?
I just have two points to make here. First, we have to be very precise
in identifying church-state conflicts in the civil rights area.22 Grace Smith
is not religiously objectionable because she is unmarried and pregnant,
but because her pregnancy is a public announcement of religiously
objectionable conduct. Similarly, if a male teacher were to announce his sexual
exploits, he would be religiously objectionable.
Second, we should also be very precise in identifying the particular
remedy we want a court or government agency to grant in this area. 23 We
should be reluctant to seek a broad ruling that the Church is
constitutionally exempt from all or any significant part of the civil rights acts. If
we reach for too much, we may prejudice our immediate church-state
objective, which is to win this particular case.
One approach we may wish to consider is to urge that the agency or
court adopt a rule similar to the court rule prohibiting decision of a
religious issue. Such a rule may afford the church-state insulation we desire,
without requiring the court to hold laws as important as the civil rights
The Catholic Church in this country seems to have its own pattern
for current property disputes. We begin with St. John's, a beautiful old
church in a part of town that has experienced a sharp decline in the
Catholic population. St. John's Church has been limping along for years
on a meager Sunday collection from a handful of parishioners. There are
four other Catholic Churches in similar circumstances within a mile of St.
John's. They each currently have a priest, but with the shortage in
vocations it is a struggle for the diocese to keep them staffed.
Then in one week both the boiler and the roof fail at St. John's. The
pastor is advised that it will cost at least $350,000 to put them back in
service. The parish does not have $350,000. The parish does not even
have $10,000. The diocese does not have an extra $350,000. The bishop
and pastor meet and decide that the end has finally come for St. John's
Church. They arrange for demolition so that the building does not
become a menace, and issue a press release.
The parish is shocked by the news. Former parishioners who long ago
have moved elsewhere are shocked. They inquire to determine whether it
is really true, whether there is something that can be done to change the
decision. Shock turns to anger and anger to a lawsuit seeking an
The bishop's attorneys march into court and deftly produce a deed
22 Serritella, Tangling with Entanglement: Toward a ConstitutionalEvaluation of
ChurchState Contracts, 44 L. & CONTEMP. PROBS 143 (1981).
showing that the bishop owns St. John's in fee simple absolute. A canon
law expert testifies that the Catholic Church is hierarchical, and the
bishop is the person in the hierarchy authorized to close the Church. No
other evidence is presented. The civil law follows canon law. Case closed.
St. John's comes down.
Things of course are a bit more complicated. The plaintiffs allege
that the bishop has not followed Church law. In support of this
allegation, they produce a canon law expert who testifies that a bishop must
confer with his consultors before closing a church. Since the bishop in
question had not done so, the closing was contrary to Church law.
However, the court determines that it would have to decide a religious issue to
resolve the conflict between the Church law experts. Therefore, the case
is dismissed. The bishop's decision stands. The church falls.
But there is another level of complexity. The plaintiffs also allege
socalled "non-religious" grounds for stopping the demolition. These may
include an express or implied trust running in favor of parishioners who
live in the area. They also produce some evidence supporting these
allegations. As long as these devices contain language relating to the Catholic
Church's responsibility for making decisions about St. John's, or are
triggered by some religious determination, the court's disposition should
follow the pattern just outlined.
If the documents do not contain such references, or the court
determines that the references to Church law are too ambiguous to be relevant,
then we have an entirely new case. The court will have to examine the
documents to determine whom they designate as the custodian of the
church's fate, and what limitations are imposed upon the custodian. It is
conceivable that the documents will point to the bishop, but put
restrictions on what he can do. It is also conceivable that the documents will
point to someone else entirely. Fortunately, today there are few such
erring documents, and few courts willing to implement them.
SUMMARY AND CONCLUSIONS
Two conclusions emerge from the foregoing discussion. First, Church
law has a relatively limited utility in church-state litigation, and that
utility is likely to be further restricted in the years ahead. The second
conclusion is a corollary of the first: Church law is an important catalyst in
the process of drafting documents relating to civil law issues, and the role
of Church lawyers as draftsmen will become increasingly demanding. I
would like to address each of these conclusions separately.
Church law has a relatively limited utility in church-state litigation
and that utility is likely to be further restricted as time goes on.
There are at least two tacit assumptions in the maxim, "The civil law
follows the canon law." The first assumption is that there is a clear,
precise, self-interpreting provision of canon law for every civil law problem.
Civil lawyers are gradually learning that this is a false assumption.
Church law is at least as complex, and is subject to a variety of
interpretations as is the civil law.
The second assumption is that no one will challenge the Church's
expert witnesses on Church law. We are learning that this assumption is
also false because increasing numbers of Church law experts are testifying
on the other side of the case. These witnesses frequently have credentials
which are indistinguishable from those of the Church's own experts.
When these false assumptions are coupled with the constitutional
prohibition against civil courts deciding Church issues, our maxim rapidly
pales. The civil law can seldom follow the canon law, because the canon
law can seldom be clearly established in a civil court. This may be
somewhat of an exaggeration today, but I think it is the image of things to
If this is a correct view of the future, we can expect church-state
litigation to become more complex and more intensely contested. We will
not be able to derive much comfort from the tidy references to Church
law we have been incorporating into Church documents. Accordingly, we
must begin to look at these issues with new eyes.
B. Church law is an important catalyst in the process of
draftingdocuments relating to civil-law issues.
This new view of things to come enhances the challenge for the
counseling, drafting, and litigation skills of the Church lawyer. We will have to
identify with greater precision the Church's goals and interests as they
may be found in Church law or expressed by clients. We will have to find
new language to help achieve these goals and protect these interests. We
will have to counsel on how properly to use the documents that
incorporate the new language. We will have to find new wisdom to avoid
litigation where possible and new strength to litigate when there is no
reasonable alternative. The role of the Church lawyer in this new era can itself be
the subject of an entire presentation.
Although we are on new ground, we must keep our healthy respect
for the old ways. Because we are on new ground, we must expect failures
and be ready to pick ourselves up again.