U.S. (13 Wall.) 679 (1871)
the Doctrine of Church Autonomy
Martin Nussbaum, Esq.
Johnson & Lyons Religious Institutions Group
April 2003, Rothgerber Johnson & Lyons LLP
Three branches of religious
liberty jurisprudence grow from the trunk of the First Amendment:
Free Exercise law, Non-Establishment law, and Church Autonomy
law. Watson v. Jones is the fountainhead of the Doctrine
of Church Autonomy which has been developed and endorsed
through the over 1,000 published precedents which rely upon
While there is disagreement
regarding whether the Doctrine of Church Autonomy derives
from the Establishment Clause, the Free Exercise Clause,
or both Religion Clauses,1 the better
reasoned position is that it is an Establishment Clause
value because the Establishment Clause acts not as a conferral
of a right but rather as a structural restraint on governmental
power. Carl H. Esbeck, The Establishment Clause as a
Structural Restraint on Governmental Power, 84 Iowa
L. Rev. 1 (1998) ("Esbeck"). In his thoughtful synthesis
of a wide range of Establishment Clause cases, Professor
Esbeck shows that, while the purpose of the Free Exercise
Clause is to "safeguard individual rights" by providing
individualized remedies to redress "personal harm to an
individual's religious belief or practice," Esbeck at 97
and 101, the "task [of the Establishment Clause is to serve
as a] structural clause [in order] to manage sovereign power."
Id. at 8.
An important consequence of attributing
structural characteristics to the Establishment Clause
is that it acknowledges the existence of a competency
centered in religion that is on a plane with that of the
civil government. Stated differently, the Establishment
Clause presupposes a constitutional model consisting of
two spheres of competence: government and religion. The
subject matters that the Clause sets apart from the sphere
of civil governmentand thereby leaves to the sphere
of religionare those topics "respecting an establishment
of religion," e.g., ecclesiastical governance, the resolution
of doctrine, the composing of prayers, and the teaching
Id. at 10. Thomas Jefferson
made similar observations:
I consider the government of the U.S.
as interdicted by the Constitution from intermeddling
with religious institutions, their doctrines, discipline,
and exercise. Certainly no power to prescribe any religious
exercise, or to assume authority in religious discipline,
has been delegated to the general government.
. . . Every religious society has a right
to determine for itself the times for [it religious] exercises,
& the objects proper for them, according to their own
particular tenets; and this right can never be safer than
in their own hands, where the constitution has deposited
Thomas Jefferson Letter to
Rev. Samuel Miller (1808) from Thomas Jefferson: Writings,
1186-87 (Merrill D. Peterson ed. 1984) (republished in the
RJ&L Religious Liberty Archive at www.churchstatelaw.com).
Thus, "[The First] amendment to the Constitution acknowledges
the existence of an arena of discourse, activity, commitment,
and organization for the ordering of life over which the
state has no authority. It is a remarkable thing in human
history when the authority governing coercive power limits
itself . . . " Esbeck, supra, at 10, n. 34 (quoting
Max L. Stackhouse, "Religion, Rights, and the Constitution,"
An Unsettled Arena: Religion and the Bill of Rights
92, 111 (1990)).
Watson v. Jones, 80
U.S. (13 Wall.) 679 (1871) initiates a distinguished line
of cases articulating the Church Autonomy principle. Watson
involved a property dispute between the pro-slavery and
anti-slavery factions of a divided Presbyterian congregation
in postbellum Kentucky. The Watson Court held that disputes
in hierarchical churches should be decided by a rule of
judicial deference to the ecclesiastical hierarchy:
[W]henever the questions of discipline,
or of faith, or ecclesiastical rule, custom or law have
been decided by the highest of these church judicatories
to which the matter has been carried, the legal tribunals
must accept such decisions as final and as binding on
them, in their application to the case before them.
Id. at 727.
The Watson court rightly predicted
that its decision would have "far reaching influence" and
concluded that it had identified a "matter over which the
civil courts exercise no jurisdiction." Id. at 734.
Thus, it is important to understand Watson's four-part
rationale of non-establishment, consent, limited judicial
competence, and inevitable entanglement.
The Watson court began its legal
analysis by rejecting the English model for resolving intra-church
disputes known as Lord Eldon's Rule and sometimes referred
to as the "departure from doctrine" test. Under Lord Eldon's
Rule, English courts inquired "what is the true standard
of faith in the church organization, and which of the contending
parties before the court holds to this standard." Id.
at 727. The English court then deferred to those parties
adhering to the "true" faith. The Watson court recognized
that while the departure from doctrine test might be appropriate
in England with its established church, it was unworkable
in the United States which had enshrined the principle of
non-establishment in its Bill of Rights. The court reasoned:
In this country the full and free right
to entertain any religious belief, to practice any religious
principle, and to seek any religious doctrine which does
not violate the laws of morality and property, and which
does not infringe personal rights, is conceded to all.
The law knows no heresy and is committed to the support
of no dogma, the establishment of no sect. The right to
organize voluntary religious associations to assist in
expression and dissemination of any religious doctrine,
and to create tribunals for the decision of controverted
questions of faith within the association, and for the
ecclesiastical government of all individual members, congregations,
and officers within the general association is unquestioned
. . . . It is of the essence of these religious unions,
and of their right to establish tribunals for the decision
of questions arising among themselves, that those decisions
should be binding in all cases of ecclesiastical cognizance,
subject only to such appeals as the organism itself provides
Id. at 728-29.
Next, the court recognized that the rule
of judicial deference was appropriate because church members
had impliedly consented to their respective church disciplines:
All who unite themselves to such a body
do so with an implied consent to this government, and
are bound to submit to it. But it would be a vain consent
and would lead to the total subversion of such religious
bodies, if anyone aggrieved by one of their decisions
could appeal to the secular courts and have them reversed.
Id. at 729.
The court then recognized the limits of
judicial competence. "It is not to be supposed that the
judges of the civil courts can be as competent in the ecclesiastical
law and religious faith of all these bodies as the ablest
men in each are in reference to their own. It would therefore
be an appeal from the more learned tribunal in the law which
should decide the case, to the one which is less so." Id.
Finally, the court recognized that should
it and other civil courts assert jurisdiction over internal
church affairs, the civil litigation would inevitably result
in wholesale entanglement of government in religious affairs:
[I]t is easy to see that if the civil
courts are to inquire into all these matters, the whole
subject of the doctrinal theology, the usages and customs,
the written laws, and fundamental organization of every
religious denomination may, and must, be examined into
with minuteness and care, for they would become, in almost
every case, the criteria by which the validity of the
ecclesiastical decree would be determined in the civil
court. This principle would deprive these bodies of the
right of construing their own church laws, and would open
the way to all the evils which we have depicted as attendant
upon the doctrine of Lord Eldon . . .
Id. at 733-34.
Even though Watson was decided on
a pre-Erie,2 pre-incorporation3
basis and, therefore, was theoretically not founded upon
the First Amendment Religion Clauses, the Supreme Court
later constitutionalized Watson's principles.
Kedroff, 344 U.S. at 116 (1952).
[Watson] "radiates . . . a spirit
of freedom for religious organizations, an independence
from secular control or manipulation, in short, power
to decide for themselves, free from state interference,
matters of church government as well as those of faith
and doctrine. Freedom to select the clergy, where no improper
methods of choice are proven, we think, must now be said
to have federal constitutional protection as part of the
free exercise of religion against state interference."
With over 1,000 precedential progeny, Watson's
wake is wide and deep. Its holding and rationale did have
and continues to have "far-reaching consequences." These
principles, best described as the Doctrine of Church Autonomy
have caused courts to decline jurisdiction over six subject
matters related to religious institutions, including:
1. Church splits and the resulting disputes
over church property and ministry assignments, Kedroff,
344 U.S. 94 (1952);4
2. Disputes concerning the discipline
of church members, O'Connor v. Diocese of Honolulu,
889 P.2d 261 (Hawaii 1994);
3. Disputes between ministers and churches,
McClure v. The Salvation Army, 460 F.2d 553 (5th
Cir. 1972) cert. denied 49 U.S. 896 (1972);5
4. Claims arising from or related to church
communications, United States v. Ballard, 322 U.S.
78 (1944), Klagsbrun v. Va'Ad Harabonim of Greater
Monsey, 53 F.Supp.2d 732 (D.N.J. 1999); Parish
of the Advent, 426 Mass. 268, 688 N.E.2d 923 (1997);
and Bryce v. Episcopal Church in the Diocese of Colorado,
(Case No. 00-1515) (10th Cir. 2002);6
5. Claims against clergy for malpractice
or breach of fiduciary duty, Nally v. Grace Community
Church of the Valley, 47 Cal.3d 278, 253 Cal.Rptr.
97, 763 P.2d 948 (1988) cert. denied 490 U.S. 1007
(1989); and Schieffer v. Catholic Archdiocese of Omaha,
244 Neb. 715, 508 N.W.2d 907, 911 (Neb. 1993) (clergy
malpractice recognized no where);7
6. Claims against churches or church
officials for negligent hiring, assignment, and supervision,
Schmidt v. Bishop, 779 F.Supp. 321 (S.D.N.Y. 1991);
Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d
780 (Wis. 1995); Swanson v. Roman Catholic Bishop of
Portland, 692 A.2d 441 (Me. 1997); and L.L.N. v. Clauder,
563 N.W.2d 434 (Wis. 1997) (negligent management claims
necessarily involve evaluating religious doctrine because
"church doctrines and practices are intertwined with the
supervision and discipline of clergy");8
The Doctrine of Church Autonomy is at the
very heart of the Religion Clauses because itunlike
the Free Exercise Clause's compelling governmental interest
and least restrictive means analyses and unlike the Establishment
Clause's secular purpose and primary effect analysesinvolves
no weighing of competing interests between church and state.9
Except when ministers sue religious institutions, the application
of the Doctrine of Church Autonomy simply inquires whether
adjudication of the dispute touches upon matters of faith,
polity, discipline, canon law, or ecclesiastical relationships.
Minister-church lawsuits comprise a special
application of Church Autonomy jurisprudence in which defendants
are required to show only that the claim arose from a church-minister
relationship. Minker v. Baltimore Ann. Conf. of United
Methodist Church, 894 F.2d 1354, 1355 (D.C.Cir. 1990)
(the appointment of a minister "is per se a religious matter").
Defendants are not required to show that adjudication of
the claims would necessarily touch upon matters of faith,
discipline, canon law, and morals.
We need not consider the precise contours
of church policy, however, to reject [the minister's] claim
that lay courts have jurisdiction . . . Rather, . . . determination
of "whose voice speaks for the church" is per se a religious
matter. . . . We cannot imagine an area of inquiry less
suited to a temporal court for decision; evaluation of the
"gifts and graces" of a minister must be left to ecclesiastical
institutions. This is the view of every court that has been
confronted with this genre of dispute.
Id. at 1356-57. Accordingly, when
ministers sue their former church employers, the inquiry
is simply whether the claims touch upon a church-minister
relationship because courts have repeatedly recognized that
church-minister relationships are intrinsically religious.
of Texas Law Professor, Douglas Laycock, is one of the earlier
scholars to name the principle invoked here as the Doctrine
of "Church Autonomy." The United States Supreme Court has
subsequently employed the term. Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter-day Saints
v. Amos, 483 U.S. 327, 341-46 (1987) (Brennan and Marshall,
JJ., concurring). Professor Laycock identifies the Church
Autonomy principle as a Free Exercise value. Douglas Laycock,
Towards a General Theory of the Religion Clauses: The
Case of Church Labor Relations and the Right to Church Autonomy,
81 Colum. L. Rev. 1373 (1981). The courts have recognized
the principle sometimes as a Free Exercise value, Kedroff
v. St. Nicholas Cathedral of the Russian Orthodox Church
in North America, 344 U.S. 94, 107 (1952), sometimes
as a non-establishment value, see generally Carl
H. Esbeck, The Establishment Clause as a Structural Restraint
on Governmental Power, 84 Iowa L. Rev. 1 (1998) and
Carl H. Esbeck, Differentiating the Free Exercise and
Establishment Clauses, 42 J. of Church & State 311 (2000);
and sometimes as a value which springs both from the Free
Exercise Clause and from the anti-entanglement notions of
the Establishment Clause. Presbyterian Church of the
United States v. Blue Hull Memorial Presbyterian Church,
393 U.S. 440, 449 (1969).
R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Free Exercise and Establishment Clauses were not incorporated
into the Fourteenth Amendment until the 1940s. Cantwell
v. Connecticut, 310 U.S. 296 (1940) (incorporating the
Free Exercise Clause) and Everson v. Bd. of Educ. of
Ewing Township, 330 U.S. 1 (1947) (incorporating the
Every United States Supreme Court decision has declined
jurisdiction over church property disputes. Watson, supra,
Kedroff, 344 U.S. 94 (1952); Kreshik v. St. Nicholas
Cathedral of the Russian Orthodox Church of North America,
363 U.S. 190 (1960); Blue Hull Memorial Presbyterian
Church, 393 U.S. 440 (1969); Jones v. Wolf, 443
U.S. 595 (1979); and Shepard v. Barkley, 62 L. Ed.
See also McClure v. The Salvation Army, 460 F.2d
553 (5th Cir. 1972); Natal v. Christian and Missionary
Alliance, 878 F.2d 1575 (1st Cir. 1989); Dowd v.
Society of St. Columbans, 861 F.2d 761 (1st Cir. 1988);
Simpson v. Wells Lamont Corp., 494 F.2d 490 (5th
Cir. 1974); Kaufmann v. Sheehan, 707 F.2d 355 (8th
Cir. 1983); Rayburn v. Gen'l Conf. of Seventh-day Adventists,
772 F.2d 1164 (4th Cir. 1985), cert. denied, 478
U.S. 1020 (1986); Hutchison v. Thomas, 789 F.2d 392
(6th Cir. 1986), cert. denied, 479 U.S. 885 (1986);
Scharon v. St. Luke's Episcopal Presbyterian Hosp.,
929 F.2d 360 (8th Cir. 1991); Little v. Wuerl, 929
F.2d 944 (3d Cir. 1991); Lewis v. Seventh-day Adventists
Lake Region Conf., 978 F.2d 940 (6th Cir. 1992); Young
v. Northern Ill. Conf. of United Methodist Church, 21
F.3d 184 (7th Cir. 1994); EEOC v. Catholic University
of America, 83 F.3d 455 (D.C. Cir. 1996); Bell v.
Presbyterian Church (U.S.A.), 126 F.3d 328 (4th Cir.
1997); Combs v. Central Texas Annual Conf. of the United
Methodist Church, 173 F.3d 343 (5th Cir. 1999); Gellington
v. Christian Methodist Episcopal Church, Inc., 203 F.3d
1299 (11th Cir. 2000); EEOC v. Roman Catholic Diocese
of Raleigh, 213 F.3d 795 (4th Cir. 2000); and Bryce,
289 F.3d 648 (10th Cir. 2002).
Woven throughout the body of Church Autonomy law is a repeated
recognition that government has no subject matter jurisdiction
over church communications, regardless whether those communications
take the form of sermons, credal statements, religious tracts,
parish dialogues, defamatory and non-defamatory ecclesial
statements regarding minister assignments or discipline,
congregation deliberations, penitential communications,
pastoral counseling communications, church-communicant communications,
statements before and by ecclesiastical tribunals, or church
American court to consider the issue has refused to adjudicate
claims of clergy malpractice. Baumgartner v. First Church
of Christ, Scientist, 490 N.E.2d 1319 (Ill. App. 1986);
Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987); Handley
v. Richards, 518 So. 2d 682 (Ala. 1987); Destefano v.
Grabrian, 763 P.2d 275 (Colo. 1988); Nally v. Grace Community
Church of the Valley, 763 P.2d 948 (Cal. 1988); White
v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990); Byrd
v. Faber, 565 N.E.2d 584 (Ohio 1991); Schmidt v.
Bishop, 779 F. Supp. 321, 324-28 (S.D.N.Y. 1991); Jones
v. Trane, 153 Misc. 2d 822, 591 N.Y.S.2d 927, 929-30
(N.Y. S. Ct. 1992); Bladen v. First Presbyterian Church,
857 P.2d 789, 795 (Okla. 1993); Schieffer v. Catholic
Archdiocese of Omaha, 508 N.W.2d 907, 911 (Neb. 1993)
(clergy malpractice recognized no where); O'Connor,
885 P.2d at 369-70 (Haw. 1994); Roppolo v. Moore,
644 So.2d 206 (La. Ct. App., 4th Cir. 1994); Joshua S.
v. Casey, 206 A.D.2d 839, 615 N.Y.S.2d 200, 200-01 (N.Y.
1994) ("we are unaware of any authority supporting the proposition
that sexual abuse by a member of the clergy is cognizable
as 'clergy malpractice'"); Podolinski v. Episcopal Diocese
of Pittsburgh, 23 D. & C. 4th 385 (Pa. Ct. of Common
Pleas) (1995); Cherepski v. Walker, 913 S.W.2d 761
(Ark. 1996); F.G. v. MacDonell, 696 A.2d 697 (N.J.
1997); Amato v. Greenquist, 679 N.E.2d 446 (Ill.
Ct. App. 1997); Mulinix v. Mulinix, 1997 WL 585775
(Minn. Ct. App. 1997); Teadt v. Lutheran Church, Missouri
Synod, 603 N.W.2d 816, 822 (Mich. Ct. App. 1999) (citing
courts rejecting clergy malpractice claims); Borchers
v. Hrychuk, 727 A.2d 388 (Md. Ct. App. 1999); Langford
v. Roman Catholic Diocese, 705 N.Y.S.2d 661 (N.Y. App.
Div. 2000); Hawkins v. Trinity Baptist Church, 30
S.W.3d 446 (Tex. Ct. App. 2000); and Lann v. Davis,
793 So.2d 463 (La. Ct. App. 2001). See Strock v. Pressnell,
38 Ohio St.3d 207, 527 N.E.2d 1235 (Ohio 1988); and Greene
v. Roy, 604 So. 2d 1359 (La. Ct. App. 1992).
Hiles v. Episcopal Diocese of Massachusetts, 773
N.E.2d 929, 935 (Mass. 2002) ( First Amendment deprived
the civil courts of subject matter jurisdiction "to probe
into a religious organization's discipline of its clergy
. . . ."); Schmidt v. Bishop, 779 F.Supp. 321 (S.D.N.Y.
1991); Pritzlaff v. Archdiocese of Milwaukee, 533
N.W.2d 780 (Wis. 1995); Swanson v. Roman Catholic Bishop
of Portland, 692 A.2d 441 (Me. 1997); S.H.C. v. Lu,
54 P.3d 174 (Wash. App. 2002); Germain v. Pullman Baptist
Church, 980 P.2d 809 (Wash. App. 1999); Gibson v.
Brewer, 952 S.W.2d 239 (Mo. 1997) ("Questions of hiring,
ordaining, and retaining clergy, however, necessarily involve
interpretation of religious doctrine, policy, and administration.
Such excessive entanglement between church and state has
the effect of inhibiting religion, in violation of the First
Amendment"); Ayon v. Gourley, 47 F. Supp. 2d 1246,
1250 (D. Colo. 1998), aff'd on other grounds, 185 F.3d 873
(10th Cir. 1999); Turner v. The Church of Jesus Christ
of Latter-day Saints, 18 S.W.3d 877, 886 (Tex. App.—Dallas
2000, review denied) (First Amendment bars negligent training
claim); Hodges v. Kleinwood Church of Christ, 2000
WL 994337 (Tex. App.--Hous. (1st Dist.) 2000); Roppolo
v. Moore, 644 So.2d 206 (La. App. 1995); L.L.N. v. Clauder,
563 N.W.2d 434 (Wis. 1997) (negligent management claims
necessarily involve evaluating religious doctrine because
"church doctrines and practices are intertwined with the
supervision and discipline of clergy"); Isely v. Capuchin
Province, 880 F. Supp. 1138, 1150 (E.D.Mich.1995); and
Higgins v. Maher, 210 Cal.App.3d 1168, 258 Cal.Rptr.
757 (1989) cert. denied 493 U.S. 1080 (1990); Olson v.
Luther Memorial Church, 1996 WL 70102 (Minn. App. 1996);
Germain v. Pullman Baptist Church, 980 P.2d 809 (Wash.
App. 1999); Dausch v. Rykes, 52 F.3d 1425 (7th Cir.
1994); and Roman Catholic Bishop of San Diego v. Super.
Ct., 42 Cal.App.4th 1556, 50 Cal. Rptr.2d 399 (Cal.Ct.App.
4th Dist. 1996). See also Bryan R. v. Watchtower Bible
& Tract Soc'y, 738 A.2d 839, 848 (Me. 1999) (stating
in dicta that "[a]llowing a secular court or jury to determine
whether a church and its clergy have sufficiently disciplined,
sanctioned, or counseled a church member would insert the
State into church matters in a fashion wholly forbidden"
by the First Amendment.).
We reject the plaintiff's contention that a balancing
test is appropriate to determine to what extent judicial
scrutiny of her claims would offend the defendants' religious
freedoms under either the establishment clause, or the
free exercise clause. The application of the First Amendment,
in circumstances such as these, involves no balancing.
If adjudication of the plaintiff's claims would implicate
matters of ecclesiastical relationship, the courts should
v. Episcopal Diocese of Massachusetts, 766 N.E.2d 820,
825 (Mass. 2002).