eCases

. Milivojevich further held that, even if the Court's
precedents could be construed as creating an exception to ecclesiastical abstention, the first
amendment would not countenance an "arbitrariness" exception that would entail a court determining
whether a church "complied with [its] laws and regulations." Milivojevich,

. No Supreme Court case since Milivojevich has discussed an
exception to ecclesiastical abstention, leaving lower courts to speculate on the vitality of even the
"fraud" and "collusion" aspects of the exception articulated in Gonzalez. See, e.g., Crowder v.
Southern Baptist Convention,

828 F.2d 718

, 725 n.18 (11th Cir. 1987) (the Supreme Court "left open
the possibility" of civil court intervention in cases of fraud or collusion); Abrams, 306 Ill. App. 3d
at 1013 ("Milivojevich merely leaves open, but does not endorse, the possibility that limited review
might be available in cases of fraud or collusion"). Since plaintiffs do not claim any exception to
abstention, we need not determine what remained of the Gonzalez exception after Milivojevich.
-20-
No. 2--06--0884
secular courts as conclusive, because the parties in interest made them so by contract or
otherwise." Gonzalez,

280 U.S. at 16

74 L. Ed. at 137

50 S. Ct. at 7-8

.
Noting that there was "not even a suggestion that [the archbishop] exercised his authority arbitrarily,"
the Court found no ground for intervening. Gonzalez,

280 U.S. at 7-8

74 L. Ed. at 137

50 S. Ct. at 8

.
Procedural and subject-matter considerations are intertwined in the Court's discussion, yet
we cannot imagine that the Court would have intervened if the plaintiff had gone directly to the
courts and the "Church authorities" had not previously acted on his petition. Moreover, we believe
the Court would have justified its abstention by reference to the content of the controversy, i.e., the
qualifications of clergy.
In Kedroff, the Court was asked to decide whether the right to use and occupy a cathedral in
New York was held by the Russian Orthodox Church, a hierarchical denomination whose supreme
authority was seated in Moscow, or by the American diocese of that denomination, which had title
to the property. The issue turned on the constitutionality of a New York statute that purported to
grant autonomy to the American diocese, which had elected its own ruling prelate. The Court found
that the statute effectively "prohibit[ed] the free exercise of an ecclesiastical right, the Church's
choice of [authority]" because it "[b]y fiat *** displace[d] one church administrator with another"
and "passe[d] the control of matters strictly ecclesiastical from one church authority to another."
Kedroff,

344 U.S. at 119

, 97 L. Ed. at 138,

73 S. Ct. at 156

. The Court discussed Watson and quoted
from it at length, including this statement:
"In this country the full and free right to entertain any religious brief, to practice any
religious principle, and to teach any religious doctrine which does not violate the laws of
-21-
No. 2--06--0884
morality and property, and which does not infringe personal rights, is conceded to all."
Watson,

80 U.S. at 728

20 L. Ed. at 676

.
According to the Court, 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,7 we think, must now
be said to have federal constitutional protection as a part of the free exercise of religion
against state interference." (Emphasis added.) Kedroff,

344 U.S. at 116

, 97 L. Ed. at 136-37,

73 S. Ct. at 154-55

.
Consistent with Watson, the Court also recognized the State's special interest in determining property
rights:
"There are occasions when civil courts must draw lines between the responsibilities of
church and state for the disposition or use of property. Even in those cases when the property
right follows as an incident from decisions of the church custom or law on ecclesiastical
issues, the church rule controls." Kedroff,

344 U.S. at 120-21

, 97 L. Ed. at 139,

73 S. Ct. at 156-57

.
7
Here the Court cited Gonzalez's fraud/collusion/arbitrariness exception to the abstention
doctrine.
-22-
No. 2--06--0884
The Court concluded that it should abstain because the dispute was foremost "a matter of
ecclesiastical government" that involved property rights only incidentally. Kedroff,

344 U.S. at 115

,
97 L. Ed. at 136,

73 S. Ct. at 154

.
Here again, the Court's emphasis on what subjects are forbidden to courts was such that we
cannot imagine the Court ruling differently had the New York statute purported to confirm rather
than abrogate the power of the Russian Orthodox Church over the American diocese. In that
scenario, the church hierarchy would not be infringed but the statute nonetheless would be invalid
as an attempt by the state to act in matters of church administration.
Next to Watson, the Court's most quoted decision on ecclesiastical abstention is
Milivojevich. Milivojevich, like Watson, is a lengthy decision full of lofty pronouncements on the
proper stance of the state toward church disputes. In Milivojevich, the Holy Assembly of the
hierarchical Serbian Orthodox Church (Mother Church) removed the plaintiff as bishop of the
Mother Church's American-Canadian Diocese (Diocese) on grounds of misconduct and reorganized
the Diocese into three parts. The plaintiff asked the civil courts to declare these actions invalid
because they were not taken according to the Mother Church's constitution and laws. Milivojevich,

426 U.S. at 707-08

49 L. Ed. 2d at 161-62

96 S. Ct. at 2379-80

.
The Court held that abstention was clearly mandatory under the principles of Watson and its
progeny. The substance of the dispute, the Court found, was of ecclesiastical concern. First, as to
the defrockment of the plaintiff, the Court observed that "questions of church discipline and the
composition of the church hierarchy are at the core of ecclesiastical concern" and that "the bishop
of a church is clearly one of the central figures in such a hierarchy." Milivojevich,

426 U.S. at 717

49 L. Ed. 2d at 167

96 S. Ct. at 2384

. Second, the reorganization of the Diocese "involv[ed] a
-23-
No. 2--06--0884
matter of internal church government, an issue at the core of ecclesiastical affairs." Milivojevich,

426 U.S. at 721

96 S. Ct. at 2386

.
The Court did not, however, end its discussion here. The Court consumed a great deal of
space criticizing the Supreme Court of Illinois for questioning the Mother Church's procedures. The
Illinois court claimed to apply the "arbitrariness" prong of the Gonzalez exception to abstention. The
Illinois court found that the removal of the plaintiff was " 'arbitrary' " because it was not " 'in
accordance with the prescribed procedure of the constitution and the penal code of the [Mother
Church].' " Milivojevich,

426 U.S. at 718

49 L. Ed. 2d at 168

96 S. Ct. at 2384

, quoting Serbian
Eastern Orthodox Diocese for the United States of America & Canada v. Milivojevich,

60 Ill. 2d 477

, 503 (1975). According to the Court, the Illinois court should have abstained once it was
apparent that the Holy Assembly was the church body "in whose sole discretion the authority to
make those ecclesiastical decisions [was] vested." Milivojevich,

426 U.S. at 717-18

49 L. Ed. 2d at 167

96 S. Ct. at 2384

. The inquiry of the Illinois court into whether "the decisions of the highest
ecclesiastical tribunal of a hierarchical church complied with church laws and regulations" was
prohibited by "the constitutional mandate that civil courts are bound to accept the decisions of the
highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith,
internal organization, or ecclesiastical rule, custom, or law." Milivojevich,

.8
8
This, it is generally held, was the internment of the "arbitrariness" component of the
Gonzalez exception. See Elvig v. Calvin Presbyterian Church,

397 F.3d 790

, 800-01 (9th Cir. 2005)
("Milivojevich made it clear that there was no arbitrariness exception to the First Amendment");
-24-
No. 2--06--0884
In two places in the opinion, the Court stated its broader holding. Early in the decision the
Court said:
Bell,

126 F.3d at 331

 (same); Crowder,

828 F.2d at 725

 (same). The Court in Milivojevich still
found it appropriate to verify that the church body that took the disputed action was the "final
authority" on "matters of church discipline and internal organization." Milivojevich,

426 U.S. at 715-16

49 L. Ed. 2d at 166-67

96 S. Ct. at 2383-84

. At least one Illinois court, the First District
in Ervin v. Lilydale Progressive Missionary Baptist Church,

351 Ill. App. 3d 41

 (2004), has not been
careful to distinguish what inquiries are permissible under Milivojevich. Ervin holds that courts "can
decide whether the proper church authority terminated a pastor." Ervin, 351 Ill. App. 3d at 44. This
seems an acceptable paraphrase of Milivojevich, but the Ervin court crosses into error when it later
states, without qualification, that "any church *** has the autonomy to select the clergy as long as
the method of selection comports with the church's governing law" and that the "first and fourteenth
amendments do not prohibit court intervention when the church fails to follow the procedures it has,
itself, enacted." (Emphasis added.) Ervin, 351 Ill. App. 3d at 45. This broad license for court
intervention is inconsistent with Milivojevich, which holds that courts may not inquire into whether
"the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church
laws and regulations" (Milivojevich,

). Likely,
Ervin strayed because of its incautious reliance on Kedroff's holding that courts may determine
whether "improper methods of choice" were used in the selection of clergy (Kedroff,

344 U.S. at 116

, 97 L. Ed. at 136,

73 S. Ct. at 154

). Kedroff was citing Gonzalez's fraud/collusion/arbitrariness
exception to abstention, but Milivojevich eliminated the arbitrariness aspect of the exception.
-25-
No. 2--06--0884
"For where resolution of [a] dispute[] cannot be made without extensive inquiry by civil
courts into religious law and polity, the First and Fourteenth Amendments mandate that civil
courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of
hierarchical polity, but must accept such decisions as binding on them, in their application
to the religious issues of doctrine or polity before them." Milivojevich,

426 U.S. at 709

49 L. Ed. 2d at 162

96 S. Ct. at 2380

.
In the final paragraph of the case, the Court said:
"[T]he First and Fourteenth Amendments permit hierarchical religious organizations
to establish their own rules and regulations for internal discipline and government, and to
create tribunals for adjudicating disputes over these matters. When this choice is exercised
and ecclesiastical tribunals are created to decide disputes over the government and direction
of subordinate bodies, the Constitution requires that civil courts accept their decisions as
binding upon them." Milivojevich,

426 U.S. at 724-25

49 L. Ed. 2d at 171

96 S. Ct. at 2387-88

.
This passage might lead the reader to conclude that abstention from a church controversy is required
only where: (1) the controversy concerns a certain subject matter; and (2) the church is hierarchical
and its highest tribunals have addressed the controversy. This is not a reasonable reading in the
context of the case. In these passages, the Court is not limiting the scope of the abstention doctrine
to any particular church polity, or requiring a prior adjudication by the church as a prerequisite to
abstention. Such would be grossly inconsistent with the several instances elsewhere in the opinion
where the Court stresses, without reference to any particular kind of church or church procedure, that
civil courts may not resolve controversies on certain subjects. The Court says, for instance, that
-26-
No. 2--06--0884
courts must not decide " 'controversies over religious doctrine and practice.' " (Milivojevich,

426 U.S. at 710

49 L. Ed. 2d at 163

96 S. Ct. at 2381

, quoting Hull Church,

393 U.S. at 449

21 L. Ed. 2d at 665

89 S. Ct. at 606

) or "become entangled in essentially religious controversies or intervene
on behalf of groups espousing particular doctrinal beliefs" (Milivojevich,

426 U.S. at 709

49 L. Ed. 2d at 163

96 S. Ct. at 2380

). What we believe the Court is doing in the above passages is casting
its rejection of the Gonzalez "arbitrariness" exception in terms particular to hierarchical churches.
The Court is reinforcing the point, which it made in critiquing the Illinois court, that civil courts
must not inquire "whether the decisions of the highest ecclesiastical tribunal of a hierarchical church
complied with church laws and regulations" (Milivojevich,

). We cannot read Milivojevich as undercutting the Court's holdings in prior cases that,
where the subject matter of a dispute concerns ecclesiastical matters, a court must abstain no matter
the type of church polity involved or the presence or absence of a prior church adjudication of the
controversy.
We note two other important aspects of the Court's decision in Milivojevich. First, the Court
rejected the Illinois court's purported application of "neutral principles"9 to the constitutions of the
Mother Church and the Diocese. The Illinois court had concluded that these documents granted the
Diocese administrative autonomy. The Court refused to explore the "various church constitutional
provisions relevant to [the Illinois court's] conclusion," for the provisions "were not so express that
9
The "neutral principles" analysis for church property disputes, adumbrated as early as
Watson, would be formally adopted in Jones. See Jones,

443 U.S. at 603

61 L. Ed. 2d at 784

99 S. Ct. at 3025

.
-27-
No. 2--06--0884
the civil courts could enforce them without engaging in a searching and therefore impermissible
inquiry into church polity." Milivojevich,

426 U.S. at 721-23

96 S. Ct. at

2386-
87. It "suffice[d]" that "the final province" on matters of church polity lay with the Holy Assembly.
Milivojevich,

426 U.S. at 721

96 S. Ct. at 2386

.
Second, the Court refused to view the matter as a church property dispute. If the Holy
Assembly's decisions implicated property rights, it was "the incidental effect of an ecclesiastical
determination that [was] not subject to judicial abrogation, having been reached by the final church
judicatory in which authority to make the decision resides." Milivojevich,

426 U.S. at 720

49 L. Ed. 2d at 169

96 S. Ct. at 2385-86

.
As we have seen, Milivojevich is a somewhat challenging case from which to extract general
principles given the Court's repeated couching of the ecclesiastical abstention doctrine in terms of
a particular kind of church polity, namely a hierarchy, and more specifically a hierarchy whose
highest tribunal, or judicatory authorities, have ruled on the matter. So worded, these holdings say
nothing about a duty to abstain in the case of: (1) a hierarchical church whose highest judicatory
levels the dispute did not reach before it was brought to the civil courts; (2) a congregational church;
or (3) a church, whether hierarchical or congregational, that lacks adjudicatory bodies altogether.
The question is whether, under the Court's abstention jurisprudence, a church dispute must have
reached a certain position within the church polity before abstention is mandated, or whether the
subject matter of the dispute is a sufficient, and perhaps the only appropriate, ground for deference.
To use the phraseology we developed above, is procedural deference a necessary or even appropriate
component of the abstention doctrine?
-28-
No. 2--06--0884
We believe, as explained above, that Milivojevich itself answers the question in the negative,
albeit impliedly. However, some lower courts applying the abstention doctrine have given
significant and sometimes decisive weight to the status of a dispute within the particular polity of
the church. For instance, certain decisions have developed a kind of ripeness doctrine that mandates
abstention where the dispute has not yet reached the highest level in a hierarchical church. See, e.g.,
First Baptist Church of Glen Este v. Ohio,

591 F. Supp. 676

, 683 (S.D. Ohio 1983) ("Civil courts
must insure that an aggrieved church member has exhausted all internal 'rights of appeal' before any
inquiry is made into internal church matters. Only after such appeal rights have been exhausted can
a court determine that the highest church judicatory body has spoken on the matter"); Williams v.
Palmer,

177 Ill. App. 3d 799

, 805 (1988) ("if plaintiff has not appealed to higher church tribunals,
that is his remedy. [Citation.] If plaintiff has made such appeal and been denied relief, this court
must defer to the decision of the church"). Under First Baptist Church and Williams, if the dispute
has not made its way through the church channels designated for dispute resolution, abstention is
necessary, independently of the subject matter of the dispute.
One court has used procedural considerations to conclude that abstention was not warranted.
In Vann v. Guildfield Missionary Baptist Church,

452 F. Supp. 2d 651

 (W.D. Va. 2006), the plaintiff
sued his church, a congregational polity, for wrongfully terminating him as pastor. The plaintiff
alleged that he was fired by a single church official, contrary to the church bylaws that required such
a decision to be made by a majority vote of members at a duly called church meeting. The church
urged the court to abstain from the suit because it presented an ecclesiastical controversy. The court
refused, holding that the abstention doctrine "presupposes that the religious organization itself has
acted before immunizing the decision from judicial review." Vann,

452 F. Supp. 2d at 655

. The
-29-
No. 2--06--0884
court acknowledged the Supreme Court's admonition in Milivojevich against a secular court's inquiry
"whether the decisions of [the church] complied with church laws and regulations" (Milivojevich,

), but found "an important difference between
conducting an inquiry into which part of a religious organization has spoken and asking whether the
organization has spoken at all." Vann, F. Supp. 2d at 656 n.5. The court concluded that abstention
was unwarranted because the plaintiff's termination, having not been accomplished by vote of the
congregation, "was not the decision of a religious entity or church." Vann,

452 F. Supp. 2d at 656

.10
Vann is without doubt a more radical use of procedural considerations than is seen in First
Baptist Church and Williams. In these latter decisions, it was assumed that a dispute concerning
"matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law"
(Milivojevich,

) is never appropriate for court
intervention even where the plaintiff has exhausted all remedies within the church. See First Baptist
Church,

591 F. Supp. at 683

 ("The scope of review is constitutionally limited so that the civil courts
do not adjudicate ecclesiastical matters"); Williams, 177 Ill. App. 3d at 805 ("Appointment [of
ministers] is undoubtedly an ecclesiastical matter to which judicial deference is mandated by the first
amendment"). That is, procedural considerations provide independent justification for abstention,
and they never warrant intervention where subject-matter deference would not.
Under Vann's approach, by contrast, a court may intervene if the church has not formally
acted--despite the existence within the church of a genuine controversy over ecclesiastical matters.
10
Vann seemed not to apply an exception to abstention so much as conclude that the doctrine
had no application in the first instance because no church action was involved.
-30-
No. 2--06--0884
Vann is irreconcilable with any intelligent reading of Watson and its progeny, which flatly proscribe
court involvement in "matters of discipline, faith, internal organization, or ecclesiastical rule,
custom, or law." Milivojevich,

. Vann's error
is in assuming that, where a church has not formally acted, there is no ecclesiastical controversy.
Vann is useful for bringing into sharp relief the error in any approach that conditions
abstention on the procedural posture within the church of the dispute in question. If it is repugnant
to the first amendment to require a church to have formally acted at all with respect to the dispute
before abstention is appropriate, it is a fortiori erroneous to require the dispute to have traversed any
kind of appellate process within the church before abstention is warranted. Such a tack reduces the
first amendment from a substantive protection of religious conscience, shielding even the most
informal of churches, to a crude form of res judicata--a mechanical procedural requirement.
Despite their differences, Vann, First Baptist Church, and Williams share the assumption that
a court is permitted to determine when a church has formally acted (Vann) or has taken all available
action (First Baptist Church and Williams). The risk in this approach is that it may entail "a
searching and therefore impermissible inquiry into church polity" (Milivojevich,

426 U.S. at 723

96 S. Ct. at 2387

). We recognize that the Court in Milivojevich reviewed the
polity of the Mother Church, finding that the Holy Assembly was the final authority on matters of
discipline and administration.      However, the Court emphasized that the Holy Assembly's
preeminence was undisputed by the parties, and the Court issued a stern warning against the
entanglement that may result from a civil court's study of a church's polity. See Milivojevich,

426 U.S. at 722-23

49 L. Ed. 2d at 170-71

96 S. Ct. at 2386-87

. Such an inquiry is undesirable, we
-31-
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believe, even if its effect is limited to providing supplemental grounds for abstention that is
independently compelled by the subject matter of the dispute.
We believe the more circumspect approach is to rest the abstention decision entirely on the
subject matter of the dispute. We are guided here by several lower federal courts that have
insightfully explained that the ecclesiastical abstention doctrine, properly understood, applies without
regard to the polity of the church from which the dispute arises, or to the status of the dispute within
the church's adjudicatory channels, if any. To arrive at such conclusions, these courts have had to
extract the core of the ecclesiastical abstention doctrine from its enmeshment with the facts of
Watson, Gonzalez, Kedroff, and Milivojevich, which concerned hierarchical polities. Watson and
Milivojevich, of course, were faced particularly with adjudications by the highest authorities within
the hierarchies.
In Young v. Northern Illinois Conference of United Methodist Church,

21 F.3d 184

 (7th Cir.
1994), the Seventh Circuit Court of Appeals construed this frequently quoted passage from
Milivojevich:
"[N]o 'arbitrariness' exception--in the sense of an inquiry whether the decisions of the highest
ecclesiastical tribunal of a hierarchical church complied with church laws and regulations--is
consistent with the constitutional mandate that civil courts are bound to accept the decisions
of the highest judicatories of a religious organization of hierarchical polity on matters of
discipline, faith, internal organization, or ecclesiastical rule, custom, or law." (Emphasis
added.) Milivojevich,

.
The court said:
-32-
No. 2--06--0884
"The language 'highest judicatories' is derived from Watson ***, which referred to the
'highest *** church judicatories to which the matter has been carried.' In other words, it
refers to the body internal to the church which made the final disposition of the matter which
subsequently gave rise to the case at hand. It does not mean that a civil court need only defer
to the 'highest' decision-making body of the church and may ignore others. Rather, it means
that the civil court must defer to the highest body to which the matter had been carried prior
to reaching the civil court." (Emphasis omitted.) Young,

21 F.3d at

186-87 n.2.
Accord Lewis v. Seventh Day Adventists Lake Region Conference,

978 F.2d 940

, 943 (6th Cir.
1992) (deferring to decision of subordinate authority in hierarchical polity because Watson demands
deference to " 'the highest of the[] church judicatories to which the matter has been carried.'
[Citation.]" (emphasis omitted)).
Not only is abstention not contingent on an adjudication of a dispute by the highest authority
within a church, no formal adjudication at all is necessary. In Nunn v. Black,

506 F. Supp. 444

(W.D. Va. 1981), a congregation of the worldwide Church of God of Prophecy11 held a meeting and
expelled the plaintiffs as members because they falsely claimed to have the gift of glossolalia, or
speaking in tongues. The plaintiffs sued, claiming that the expulsion was wrongful because the
congregation did not employ the procedures dictated by the church's governing law. The plaintiffs
also alleged that, because they had contributed substantial sums of money to the congregation, the
expulsion deprived them of their beneficial interest in the church property. The court held that, no
11
From the court's description, the Church of God of Prophecy is a hierarchical church,
though the court never labels it as such.
-33-
No. 2--06--0884
matter how egregiously the congregation may have departed from the proper procedures, the subject
matter of the dispute made abstention compulsory. The court said:
"[I]t is certain that the ecclesiastical issue of the validity of the plaintiffs' speaking by
inspiration of the Holy Spirit pervades the present controversy and removes it from this
court's competence. *** It is the very nature of religious matters that ecclesiastical decisions
are accepted as articles of faith, as opposed to the rational, objective mode of analysis and
procedure used in secular decision-making. Therefore, in the present case, constitutional
concepts of due process, involving secular notions of 'fundamental fairness' or impermissible
objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.
[Citation.] Thus, the plaintiffs' contentions that their due process rights were violated in that
their contributions to the Church were expropriated by the expulsion is of no merit." Nunn,

506 F. Supp. at 448

.
The court immediately added:
"[T]he above conclusion is not varied by the fact that the Church of God of Prophecy has no
structured decision-making process." Nunn,

506 F. Supp. at 448

.
This is an implicit clarification that, though Watson and Milivojevich concerned adjudications by
churches with highly formalized structures, abstention turns on the essence of the dispute brought
to the secular courts. Thus, where the subject matter is forbidden to civil courts, the duty to abstain
is in no way defeated or diminished by the structure or sophistication of the church, or by the
presence or absence of any formal adjudication of the matter within the church itself.12
12
At least one court has held that a plaintiff's interest in court involvement is "substantially
-34-
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Consequently, a congregational church, whatever its formality, enjoys equal protection under
the first amendment with a hierarchical church. See Burgess v. Rock Creek Baptist Church,

734 F. Supp. 30

, 31 n.2 (D.D.C. 1990) ("the Court can discern no justification for refusing to apply the First
Amendment analysis and reasoning of the Supreme Court and lower federal court case law involving
hierarchical churches to [congregational churches]"); First Baptist Church of Glen Este,

591 F. Supp. at 682

 ("because the 'hands off' policy [of Milivojevich] is of constitutional dimension, we find it
difficult to justify the application of a different standard where a congregational church is involved");
cf. 1 W. Bassett, Religious Organizations and the Law §5:48 (1997) ("Only rarely do the courts
address the problem of entrenched board majorities who continue in office for years at a time,
impervious to recall and unheeding of congregation voices calling for resignation, or new elections.
*** Where a church is hierarchical in polity the problem of entrenched directorships is rare because
of the possibility of appeal from the local congregation for redress to superior authorities. In
hierarchical churches the courts will usually defer to the chain of authority. The problem exists,
more properly, in churches of congregational polity. Even here, however, courts will rarely intervene
to order an election").
In light of these principles, we are neither more nor less inclined to abstain given that the
Shrine is congregational rather than part of a hierarchical polity. Nor is it of moment to us whether
lessened" where the dispute has been formally adjudicated by the church. See Crowder,

828 F.2d at 726

. As explained above, we think this approach raises an unacceptable risk of state entanglement
in matters of church procedure.
-35-
No. 2--06--0884
the Shrine has formally addressed or adjudicated plaintiffs' grievances. The sole determinant here
is the subject matter of the dispute, to which we now turn.
Count I seeks rescission of the employment agreement between the Shrine and Father
Przybylo, on the ground that Father Przybylo lacks faculties from the local Roman Catholic bishop.
Plaintiffs allege that such faculties are necessary for Father Przybylo to minister as a Roman Catholic
priest as specified by the employment contract. Count III alleges that Father Przybylo has been
accused of sexual abuse in an unrelated criminal proceeding. Plaintiffs seek the suspension of Father
Przybylo because (1) the allegations are "serious and present a threat to the continued operations of
the [Shrine]"; and (2) it is the policy of the Roman Catholic Church to suspend clergy so accused
pending disposition of the charges. Count II asks for a declaration that certain individuals approved
as voting members of the Shrine by Father Przybylo are in fact not qualified for voting membership.
Count II also seeks invalidation of the January 2006 election of Shrine board members because
individuals not qualified as voting members cast ballots in the election. As is obvious from the
complaint, we are directly called on to judge the qualifications and fitness of Father Przybylo to be
pastor of the Shrine as well as the qualifications of certain individuals to be voting members of the
Shrine.
Civil courts may not involve themselves in "matters of discipline, faith, internal organization,
or ecclesiastical rule, custom, or law." Milivojevich,

. "Religious bodies must be free to decide for themselves, free from state interference,
matters which pertain to church government, faith and doctrine." Dowd v. Society of St. Columbans,

861 F.2d 761

, 764 (1st Cir. 1988). The qualifications of pastors and members generally fall within
these proscribed subjects. As for pastors, the Supreme Court said in Gonzalez: "[I]t is the function
-36-
No. 2--06--0884
of the Church authorities to determine what the essential qualifications of a chaplain are and whether
the candidate possesses them." Gonzalez,

280 U.S. at 16

74 L. Ed. at 137

50 S. Ct. at 7

. One
commentator has observed:
"The case law is almost entirely consistent. Ministerial qualifications and appointments to
church offices are essentially and entirely doctrinal decisions." 1 W. Bassett, Religious
Organizations and the Law §7:25 (1997).
This is an accurate summary. See Natal v. Christian & Missionary Alliance,

878 F.2d 1575

, 1577
(1st Cir. 1989) ("once a court is called upon to probe into a religious body's selection and retention
of clergymen, the First Amendment is implicated"); Bell,

126 F.3d at 331

 (Fourth Circuit) ("It has
thus become established that the decisions of religious entities about the appointment and removal
of ministers and persons in other positions of similar theological significance are beyond the ken of
civil courts"); McClure v. Salvation Army,

460 F.2d 553

, 558-59 (5th Cir. 1972) ("The relationship
between an organized church and its ministers is its lifeblood. *** Matters touching this
relationship must necessarily be recognized as of prime ecclesiastical concern"); Hutchison v.
Thomas,

789 F.2d 392

, 396 (6th Cir. 1986) ("The claim here relates to appellant's status and
employment as a minister of the church. It therefore concerns internal church discipline, faith, and
organization, all of which are governed by ecclesiastical rule, custom, and law"); Young,

21 F.3d at 187

 (Seventh Circuit) ("Milivojevich, read in its entirety, holds that civil court review of
ecclesiastical decisions of church tribunals, particularly those pertaining to the hiring or firing of
clergy, are in themselves an 'extensive inquiry' into religious law and practice, and hence forbidden")
(emphasis in original); Kaufmann v. Sheehan,

707 F.2d 355

, 358-59 (8th Cir. 1983) ("While there
may be some secular aspects *** to the priesthood or clergy, it is apparent that the priest or other
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No. 2--06--0884
member of the clergy occupies a particularly sensitive role in any church organization. Significant
responsibility in matters of faith *** and exercise of religion characterize such positions").
Equally broad is the ban on secular review of member qualifications. See Watson,

80 U.S. at 729

20 L. Ed. at 676

 ("All who unite themselves to [a religious organization] do so with the
implied consent to [its] government, and are bound to submit to it"); Burgess,

734 F. Supp. at 33

 ("an
indispensable part of any church is the collection of individuals who have joined together in worship
and constitute the church's membership"); Grunwald v. Bornfreund,

696 F. Supp. 838

, 840-41
(E.D.N.Y. 1988) ("The mere expulsion from a religious society, with the exclusion from a religious
community, is not a harm for which courts can grant a remedy"); Nunn,

506 F. Supp. at 448

 ("it is
clear that the plaintiffs have voluntarily submitted to be bound by the decisions of a particular
religious society and that they have no recourse for review concerning the validity of their expulsion
[from membership] on the issue of their gift of tongues"); Chase, 58 Ill. at 537 (the "constitution
intended to guarantee, from all interference by the State, not only each man's religious faith, but his
membership in the church").
Plaintiffs do not dispute these propositions, but argue that our deference here is limited
because this case "involves a property control dispute over the property and assets belonging to the
Shrine of Christ the King between factions of the membership of the local congregation." Plaintiffs
invoke the Supreme Court's holding that " 'there are neutral principles of law, developed for use in
all property disputes, which can be applied without "establishing" churches to which property is
awarded.' " Jones,

443 U.S. at 599

61 L. Ed. 2d at 782

99 S. Ct. at 3023

, quoting Hull Church,

393 U.S. at 449

21 L. Ed. 2d at 665

89 S. Ct. at 606

. Because there are no clear signs in Jones or any
other decision by the Court that a neutral principles analysis is applicable beyond property cases, we
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No. 2--06--0884
believe it best to err on the side of expanding rather than restricting first amendment protection.
Thus, we follow the several courts that have categorically refused to apply neutral principles where
a controversy involves "matters of discipline, faith, internal organization, or ecclesiastical rule,
custom, or law" (Milivojevich,