Chris, This is a very interesting case. Thanks for sharing it. I've assumed that the way for the decisions of church courts to be enforceable is for the parties to execute an arbitration agreement in advance of the proceedings--and there are some small indications that more institutions are doing that. Without it, it seemed to me that there was no mechanism for the church court decision to be enforceable--the church autonomy/religious question doctrine simply required civil courts from intervening in the dispute. I put some more thoughts on this down on paper here: http://www.bu.edu/bulawreview/files/2013/04/HELFAND.pdf (pages 509-513).
Best, Michael Michael A. Helfand Associate Professor, Pepperdine University School of Law Associate Director, Pepperdine University Glazer Institute for Jewish Studies 24255 Pacific Coast Highway Malibu, CA 90263 (310) 506-7694 SSRN: http://ssrn.com/author=760898 Twitter: http://twitter.com/mahelfand On Wed, Aug 17, 2016 at 7:16 AM, Christopher Lund <l...@wayne.edu> wrote: > 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 > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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