Although Marci and
Idisagree somewhat about the scope of the church autonomy doctrine, I
certainly agree that there are some instances when courts can decide church
issues by applying neutral principles of law. And it may be that,
depending upon the actual circumstances in which the Portland diocese finds
itself, that a judge or a trustee will be able to resolve all the questions
presented using such neutral principles.
But my question focuses
on what happens when that isn't so. Certainly, if a court or trustee
begins to tell the diocese which parishes to close based on some accounting
principle of "cost", or if it limits the number of masses or other services
performed in a certain area based on that same "cost" issue, or if it begins to
fire priests from their current positions so as to increase the "bottom line" of
the diocese, that raises church autonomy issues. No? And if so, I'm
wondering what implications that may have, both for the diocese and the
bankruptcy court.
Von G.
Keetch
Kirton
McConkie
Salt Lake City,
Utah
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]Sent: Wednesday, July 07, 2004 11:05
AMTo: [EMAIL PROTECTED]Subject: Re: FW:
Interesting question: Portland Archdiocese Filing Chapter
11
In response to Von's posting below, I would say that the so-called
"autonomy" doctrine is considerably narrower than Von's characterization.
The courts have been foreclosed from deciding solely ecclesiastical disputes,
but the question before the court must be SOLELY ecclesiastical in nature to
justify the court's refusal of jurisdiction. If the case also involves
neutral principles of law, the fact the court might also have to understand or
know ecclesastical principles does not foreclose jurisdiction. If a church
has decided to take advantage of the federal laws protecting its assets, the
fact that a neutral, govtdecisionmaker is involved in the distribution of
assets is not troubling under either of the Religion Clauses. The
distribution of assets will have to occur according to neutral financial or
monetary principles, and the judge can do that. If the Church did not want
such a neutral arbiter, but instead wanted to deal with the crisis through pure
ecclesiology, it was foolish to file for ch. 11.
Having said that, I assume the Church will invoke RFRA (as opposed to the
autonomy theory) when it feels as though the generally applicable, neutral
chapter 11 law impinges on areas it does not wish the court to enter. I
would think the arguments would be rough-sledding, but one must wonder whether
RFRA wasthe element that led the archdiocese to take a step that would
havebeen unthinkable to the Church even 5 years ago.
Marci
My question is whether, under the Establishment Clause and the
churchautonomy doctrine that some of us advance so strongly from time to
time,the federal court would have the authority to order such
trusteesupervision of the diocese, even with diocese consent.
Wouldn't suchsupervision almost by necessity delve into the church's basic
religiousdoctrine and polity, essentially allowing a government agent to
"run"the diocese? If so, then where does that lead? To a
conclusion thatall of a bankruptcy court's normal powers (at least where
those powerswould be used to supervise the ecclesiastical operations of a
religiousorganization) may not be available in a case such as this?
Or to thebroader conclusion that the bankruptcy protections themselves may
not beavailable to a religious organization under some
circumstances?
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