The question is whether there is some sort of firewall around the "deed/contract" cases. I am just not sure that there is, thus giving the courts some room to impose secular norms in other situations, should they choose to do so. That's all that I mean to say.
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 5:56 PM To: Law & Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? Hmm -- interesting, but any chance you could point to some specific cases that impose not secular norms related to contract and deed interpretation, but also secular norms that would justify courts deciding whether a church decision was the product of "fraud or collusion"? > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Newsom Michael > Sent: Friday, January 26, 2007 2:54 PM > To: Law & Religion issues for Law Academics > Subject: RE: Landmark First Amendment Religion Litigation? > > You may be right on the point. I may be confusing the > anti-communism of lower courts that got reversed on appeal. > But, that said, the post-Wolf era can only be reasonably > explained in terms of the imposition of secular norms -- at > least some of the time. And it follows, I think, that it is > altogether possible that secular norms might be imposed in > the Virginia case. > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach > Sent: Friday, January 26, 2007 5:45 PM > To: Law & Religion issues for Law Academics > Subject: RE: Landmark First Amendment Religion Litigation? > > Kedroff and Kreshik were also decided in favor of the > Soviet-controlled Russian Orthodox Church, despite the NY > legislature's efforts to the contrary. > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Volokh, Eugene > Sent: Friday, January 26, 2007 5:32 PM > To: Law & Religion issues for Law Academics > Subject: RE: Landmark First Amendment Religion Litigation? > > Well, I firmly endorse a secular norm of disliking Communism. > Nonetheless, unless I'm mistaken the Milivojevich Court held > *in favor* of the Yugoslav (and I take it > Communist-influenced) hierarchy. The hierarchy tried to > remove the American bishop; the Illinois Supreme Court > invalidated the removal "as 'arbitrary' because the > proceedings resulting in those actions were not conducted > according to the Illinois Supreme Court's interpretation of > the Church's constitution and penal code, and that the > Diocesan reorganization was invalid because it was beyond the > scope of the Mother Church's authority to effectuate such > changes without Diocesan approval." The Supreme Court > reversed the Illinois decision, and the Communist-influenced > hierarchy won. That seems to suggest that the Court was > following a norm of deference to the hierarchical > authorities, whether the heads were under the influence of > Communists or not. Am I missing something here? > > Eugene > > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Newsom > > Michael > > Sent: Friday, January 26, 2007 2:25 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: Landmark First Amendment Religion Litigation? > > > > That is all well and good, but I have the sense that the Court > > nonetheless applied secular norms in some post-Wolf cases, indeed > > perhaps going so far as to constitutionalize a Congregationalist > > polity even in hierarchical churches (be they Episcopalian or > > Presbyterian in their polity). If this isn't the application of > > secular norms, then what is it? > > > > As to the post-Wolf cases, it is difficult to argue that > they can be > > easily reconciled, there being a real difference on the precise > > question of secular norms. I think that the law is anything but > > clear, post-Wolf. > > > > One more point, the property dispute cases involving > Eastern Orthodox > > Churches certainly reflect secular norms -- a dislike of communism, > > for openers. > > > > > > > > > > ----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, > > Eugene > > Sent: Friday, January 26, 2007 4:40 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: Landmark First Amendment Religion Litigation? > > > > "[W]hether or not there is room for "marginal civil court review " > > under the narrow rubrics of "fraud" or "collusion" > > when church tribunals act in bad faith for secular purposes, no > > "arbitrariness" exception in the sense of an inquiry whether the > > decisions of the highest ecclesiastical tribunal of a hierarchical > > church complied with church laws and regulations is consistent with > > the constitutional mandate that civil courts are bound to > accept the > > decisions of the highest judicatories of a religious > organization of > > hierarchical polity on matters of discipline, faith, internal > > organization, or ecclesiastical rule, custom, or law. For > civil courts > > to analyze whether the ecclesiastical actions of a church > judicatory > > are in that sense "arbitrary " must inherently entail > inquiry into the > > procedures that canon or ecclesiastical law supposedly requires the > > church judicatory to follow, or else in to the substantive > criteria by > > which they are supposedly to decide the ecclesiastical question. > > But this is exactly the inquiry that the First Amendment prohibits; > > recognition of such an exception would undermine the > general rule that > > religious controversies are not the proper subject of civil court > > inquiry, and that a civil court must accept the ecclesiastical > > decisions of church tribunals as it finds them. Watson > itself requires > > our conclusion in its rejection of the analogous argument that > > ecclesiastical decisions of the highest church judicatories > need only > > be accepted if the subject matter of the dispute is within their > > "jurisdiction."" Serbian Eastern Orthodox Diocese v. > > Milivojevich, 426 U.S. 696, 713 (1976). > > > > > > ________________________________ > > > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of > > [EMAIL PROTECTED] > > Sent: Friday, January 26, 2007 1:24 PM > > To: religionlaw@lists.ucla.edu > > Subject: Re: Landmark First Amendment Religion Litigation? > > > > > > In a message dated 1/26/2007 4:20:12 PM Eastern Standard Time, > > [EMAIL PROTECTED] writes: > > > > I will be the first to admit that I may have > misread Jones v. Wolf, > > but "neutral principles of law" is a rather capacious concept, and > > don't forget Gonzalez v. Roman Catholic Archbishop of > Manila and the > > insistence there of the right of the Court to provide a > remedy where > > there was "fraud, collusion, or arbitrariness" in the proceedings > > before the religious tribunal. > > > > > > > > Jones v. Wolf sets forth one means by which a state may > > constitutionally chose to resolve property disputes..it > does not stand > > ofr a general proposition applicable to the ministerial > exception or > > other aspects of ecclesial life.....case law has specifically held > > that the "arbitrariness" referred to in Gonzalez does not give a > > court the jurisdiction to interpret an ecclesiaastical > organization's > > ecclesiastical process > > > > Donald C. Clark, Jr. > > 2333 Waukegan Road > > Suite 160 > > Bannockburn, Illinois 60015 > > 847-236-0900 > > 847-236-0909 (fax) > > > > > > > > This message is a PRIVATE communication. This message and all > > attachments > > are a private communication sent by a law firm and may be > > confidential or > > protected by privilege. 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