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Religious Liberty and Religious Property Disputes Who Owns the Lord's House?

Pepperdine School of Law
Malibu, CA
January 30,2009

We live in a time of uncertainty about the status of religious liberty. Courts have ordered religious hospitals and medical personnel to offer services that violate their religious beliefs. Sex abuse cases call into question whether courts can defer to church supervision of clergy. Religious organizations that require employees to share their religious commitments are charged with employment discrimination. At this conference, we will consider the status of religious liberty in the United States.

In addition, we will focus on another set of cases that raises religious liberty issues. Cases pending in several states will determine whether local congregations or denominational hierarchies own religious property. Underlying these disputes are theological disputes between the congregations and denominations. Early in our history, the United States Supreme Court determined that American courts cannot resolve the underlying theological controversies. Two alternatives have emerged:

  1. Some states draw a distinction between hierarchical churches and congregational churches. Courts defer to the decision of the highest authority within hierarchical denominations; and,
  2. Other states resolve these disputes based on neutral (non-theological) principles where possible. Ownership of property is determined based on the contents of documents (deeds, contracts, etc.) just as it would be resolved in non-religious property disputes.

Each theory raises problems: Advocates of neutral principles argue that hierarchical deference shows an arbitrary preference for an establishment of--one side of the dispute and question whether courts can squeeze the growing variety of religious faiths in the United States into hierarchical and congregational categories. Advocates of hierarchical deference argue that if we allow courts to decide church disputes, it will be the start of government interference in religious affairs.

Join us as we consider recent developments in church/state law and their implications for church property and other disputes.

Robert F. Cochran, Jr.
Louis D. Brandeis Professor of Law and
Director, Herbert and Elinor Nootbaar
Institute on Law, Religion, and Ethics