I wanted to send around a recent follow-up case to Hosanna-Tabor that I think is difficult, important, and interesting. So I figured I'd pass it on to the listserv to see what folks think.
Let me start this way. The Supreme Court in Hosanna-Tabor says that Cheryl Perich has no legal remedy for her claims. She can go to the church courts if she wants, but she can't go to the secular courts for relief. One question this raises is, well, could she really get anything from a church court? And how exactly would that happen? Say Perich got a judgment against her congregation from the church courts of her denomination (the Lutheran Church-Missouri Synod or LCMS). What then? Maybe the congregation simply pays it. But what if the congregation refuses? What could the denomination do? Perhaps the denomination expels the congregation for refusing to pay. That would be significant. But would that be the end of it? That would still leave the minister with nothing. So now the big question: Could the minister go into a legal court to enforce the church court's judgment against the congregation? Well, that's the issue before the Michigan Court of Appeals in Hillenbrand v. Christ Lutheran Church of Birch Run, http://www.michbar.org/file/opinions/appeals/2015/091515/60794.pdf. Richard Hillenbrand was a pastor at an LCMS church. He was removed from his position by his congregation. He then brought the matter before an LCMS church court. The church court ruled in his favor, and ordered the congregation to pay $70,000 a year (salary + benefits) until he found a call at another church. But actually before the church court ruled in Hillenbrand's favor, the congregation (Christ Lutheran of Birch Run) withdrew from the LCMS. The question before the Michigan Court of Appeals is whether Hillenbrand can enforce the church court's judgment against the congregation anyway. This is unfamiliar terrain to me, but I'm not entirely sure about everything in the Court's analysis. The Court spends a lot of time talking about whether the LCMS is congregational or hierarchical, which I don't think is the exact right thing to do. (I could say more about why I think it's not the right move precisely, but I don't want to bore people.) Anyway, I think the Court does eventually move into asking what I think is the really right question, which is whether the parties here initially intended-intentions measured objectively, of course, and not subjectively-these church court judgments to be legally enforceable. Now answering that question necessarily requires a court to engage in intense examination of bylaws and other church documents, and that is exactly what the Michigan Court of Appeals proceeds to do. Looking at those things, the Court concludes that these church court decisions were never intended to have legal effect-in the Court's lingo, they are merely "advisory"-and the Court therefore dismisses Hillenbrand's claims. I don't know if that's the right answer, but I do think the Court was asking some of the right kinds of questions. I think this case is important. It's important in itself. But it's also important because of its prospective effect: religious denominations will need to respond to it. Lots of religious denominations have courts, and those denominations will want to think about whether they want to make their judgments legally enforceable, and they will have to think about how to structure things so as to effectuate those intentions. This case is like Jones v. Wolf that way. Best, Chris ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website-http://law.wayne.edu/profile/christopher.lund/ Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
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