Constitution Watch: Suing for Dogma’s Sake

Crawling on his belly the full length of the main aisle was considered a proper, if minimal, means by which a dissident priest was made to achieve reconciliation with his Russian orthodox bishop. This was in the 1900s in the “coal region” of Pennsylvania, where fracturing disputes within “national” churches of particular ethnicities were then not uncommon. But penitential ceremonies did not always settle the matters of doctrine, discipline or liturgy that caused the dissidence.

And often at stake in those ruptures were claims for parish assets or for the sole right to occupy church property. Resort to the courts was sometimes chosen as the way out. But that might thrust upon secular judges the task of passing upon religious issues. Of these none would be more sensitive than the question of church governance: Who can speak for the church where contending voices within the church claim authority? In 1871 the Supreme Court gave answer.

During the Civil War, conflict over the slavery issue had divided both the Methodist and Presbyterian churches. Originating, as landmark cases often do, in a seemingly minor matter, the fight over who should have lawful possession of Louisville’s Walnut Street Presbyterian Church—Unionist Presbyterians or Confederate Presbyterians—culminated in the Court’s epochal decision in Watson v. Jones.

The General Assembly of the Presbyterian Church in the United States had condemned slavery and demanded the loyalty of all Presbyterians to the federal government. Pro-slavery Presbyterians at Walnut Street denounced the national church as heretical, hence without any right to the obedience of Presbyterians or to the Walnut Street property. The Supreme Court found itself faced with a contest between two Presbyterians churches, each claiming to be true and each holding the other heretical. But, stating that “the law knows no heresy,” the Court held itself without power to pass upon any religious issues. It focused not on which of the contending churches was true, but on where authority lay in a church whose laws make its local congregations subordinate to a body in which supreme power of control is vested, here, the General Assembly.

For such churches, the Court held: “All who unite themselves to such a body do so with an implied consent to this government and are bound to submit to it.” The Court warned that a “total subversion” of such churches would result “if anyone aggrieved by their decisions could appeal to the secular courts and have them reversed.”

The Court would later characterize the Watson decision in constitutional terms, as “radiating a spirit of freedom” for hierarchical religious organizations, recognizing their “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

But the Watson precedent did not permanently dampen the spirit of intrachurch litigation, as the Presbyterian and Episcopalian churches—and today the Catholic Church—would soon find out. Suing the national Presbyterian Church in the ’60s over rights to local church properties were Presbyterian congregations protesting the church’s ordaining of women, its new liberal stands on social and economic issues, its opposition to the Vietnam War, and its “teaching non-orthodoxy alien to the Confession of Faith and Catechisms.”

Almost a century after its appearance, Watson was invoked by the Supreme Court in ruling in favor of the national church. The Court again pointed out that the church had a “hierarchical structure of powers” and held itself forbidden to inquire whether the authority at the pinnacle of that structure had departed from doctrine

The Protestant Episcopal Church, after accepting somewhat similar changes since 1960, found itself repeatedly challenged in court by Episcopalians unhappy with the changes. Those, too, involved the ordination of women, teachings deemed both novel and heretical, and, importantly here, changes in the wording of the Book of Common Prayer. The courts have consistently upheld the Episcopalian mother church in its resistance to such dissidents.

The Catholic Church in America today faces division somewhat parallel to the divisions seen in the large Protestant bodies. Issues of CRISIS this past decade have described those breaches over liturgy, word changes in sacred texts, moral issues, economic, and social policy. Talk of schism and excommunication has been rife, yet thus far those unhappy with “liberalizing” post-Vatican II changes in the Church have not—like the opponents of “liberalizing” in the Protestant churches—carried their protests into court.

The Church, however, has not been free of litigations within its body. These have included a variety of suits against bishops—some off the wall, as in the case of a suit in New York County charging John Paul II with a breach of contract. The significant cases have all dealt with the issue of the Church’s freedom of self-governance. Conspicuous among these are attempts at court orders to halt bishops in their closings of parishes.

Driven by the growing priest shortage, but also by hopes for more effective evangelization, parish “clusterings” have proceeded widely, sometimes with bitter repercussions. A recent highly publicized state court challenge to this process in one diocese invoked a remarkable range of charges—including the claim that a state statute protecting church self-governance gave a foreign sovereign (Vatican City) power to alter a state’s laws! The courts bought neither this piece of Blanshardism nor the demand that judges take over decisions on the organization of Catholic parishes. The U.S. Supreme Court in February declined to review that decision.

Far more numerous are cases involving church discipline—not a few of these brought by Catholic clergy. The suits have come in as many forms as the ingenuity of lawyers can devise. Some have accused bishops of defamation, albeit through internal communications in pursuit of episcopal duties. Some, spurred by professional canon lawyers, have sought to win civil court judgments on the ground that a bishop had read canon law incorrectly. Other suits by disaffected Catholics charge Church institutions with various forms of discrimination couched in familiar civil rights rhetoric and seemingly ignorant not only of the broad exemptions given religious institutions by federal and state antidiscrimination laws, but also of the protective standard of Watson.

Two clouds on the horizon indicate trouble for the self-governance of Church institutions in the future. First: The more deeply a religious institution becomes involved in public funding, the more risk there is that it will become subject to public control. We have noted earlier the sound warning of Justice Scalia in the. Virginia Military Institute case, that private institutions, by accepting substantial governmental support, may be held bound by the mandates of the Equal Protection Clause.

A second cloud, now small but worth noticing, may involve some loss of the Church’s own authority. The American bishops have suggested that due process procedures be established in each diocese so that fairness may be assured to all Church employees. Well and good. The elements of due process—notice of failure in job performance, a fair hearing, and a prompt decision—are invaluable in all employments.

But it would be the height of folly for dioceses to indulge completely the due process procedures followed by government agencies—especially  where the problem is not bad typing or tardiness but heresy or scandal-giving. The Church does not want to make Church employees—even bad ones— crawl on their bellies. But the Church is not a democracy and may only hurt herself by trying to act like one. The Supreme Court’s decisions in Watson and later cases affirm that the Constitution allows the Church to be true to herself. She should rejoice in this and not debase her freedom by modishly running scared.


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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