Abstract

http://ssrn.com/abstract=1467017
 


 



Driven from the Tribunal: Judicial Resolution of Internal Church Disputes


Ira Mark Ellman


Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology

1981

California Law Review, Vol. 69, p. 1378, 1981

Abstract:     
Any organization may experience internal dissension. If the dispute continues, one faction may seek a judicial resolution. If the organization is a church, however, concern over the propriety of state intervention may cause a court to refrain from deciding the dispute. If the court decides that the religion clauses of the Constitution call for complete autonomy for the religious organization, it will refuse to hear the dispute, granting the organization immunity from judicial dispute resolution. The price of immunity, however, is denying church members ordinarily available remedies, solely on account of the religious nature of the organization in which the corporation, contract, or trust dispute arose. When a court refuses to adjudicate church disputes, it may sacrifice members' contractual interests and religious freedom. There is thus a tension between autonomy for the church and some of the very values that such autonomy might at first be assumed to further.

This article suggests a resolution to this tension. In so doing, the Article assumes that the goal is a religiously neutral adjudication: one that neither advances nor retards a church faction on the basis of its religious views. The alternative of a religiously-based adjudication one which favors a faction on the basis of its religious beliefs-is unlikely to meet constitutional requirements. The only other alternative is to refuse to decide church disputes, an approach that would satisfy the goal of avoiding entanglement at the price of members' rights and church organizing ability. This article shows why a religiously neutral adjudication is normally possible, making it unnecessary to pay the price of abstention.

Number of Pages in PDF File: 67

Keywords: Constitutional Law, Freedom of Religion, Church Disputes

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Date posted: September 3, 2009  

Suggested Citation

Ellman, Ira Mark, Driven from the Tribunal: Judicial Resolution of Internal Church Disputes (1981). California Law Review, Vol. 69, p. 1378, 1981. Available at SSRN: http://ssrn.com/abstract=1467017

Contact Information

Ira Mark Ellman (Contact Author)
Arizona State University College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
480-965-2125 (Phone)
HOME PAGE: http://www.law.asu.edu/HomePages/Ellman/
Arizona State University (ASU) - Department of Psychology ( email )
Tempe, AZ 85287-1104
United States
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