Church Members

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service.  If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m19

It is often important to determine which persons comprise the membership of a church since the church's charter and bylaws, and in some cases state nonprofit corporation law, ordinarily vest considerable authority in the members.¹ In congregational churches, the members typically elect and depose directors and ministers, authorize the purchase and sale of property, adopt and amend the charter or bylaws, and approve budgets. Church members in hierarchical churches typically possess some or all of these powers.

The essence of the relation between members and a church consists of an agreement between the parties, a profession of faith, adherence to the doctrines of the church, and submission to its government.² The membership of a church is typically determined by reference to the church charter and bylaws and to any applicable state corporation law. It is well--settled that (a) the right to determine the qualifications for membership belongs to the church, (b) a determination as to who are “members in good standing” is an ecclesiastical question relating to the government and discipline of a church, and (c) a church's decision about either matter is binding on the courts.³ Thus, when two purported members of a church sought an accounting of church funds and the church defended its noncompliance on the ground that the plaintiffs were not members in good standing, a court deferred to the church's determination that the plaintiffs were not members and dismissed the case.⁴ The court observed that membership in a religious society is an ecclesiastical matter to be determined by the church, not the courts. The United States Supreme Court has stated the general rule of judicial nonintervention in the ecclesiastical affairs of churches, including membership determinations, as follows:

But it is a very different thing where a subject matter of dispute, strictly and purely ecclesiastical in its character—a matter over which the civil courts exercise no jurisdiction—a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them—becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred on the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding adopted; and, in a sense often used in the courts, all of those may be said to be questions of jurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court.⁵

The Supreme Court  also has held that religious freedom encompasses the “power of [religious bodies] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”⁶ And, the Court has stated that “religious controversies are not the proper subject of civil court inquiry.”⁷  This rule is often followed even when it is alleged that a church deviated from its own charter or bylaws in making a membership determination.⁸

A number of courts, however, have been willing to review church determinations involving members as long as no “strictly and purely ecclesiastical” question is presented. For example, some courts have been willing to review such determinations: (a) if the church determination was the product of fraud or collusion; ⁹ (b) if civil, contract, or property rights of members are affected;¹⁰ or (c) if a legitimate dispute occurs over the meaning of the criteria for membership.¹¹ The issue of judicial intervention in internal church disputes involving membership determinations is covered later in this section.

In churches with a congregational form of government, the general rule is that a majority of the members represent the church and have the right to manage its affairs and to control its property for the use and benefit of the church, and that the law will protect such authority at least as it relates to civil, contract, or property rights. ¹² One court has stated the rule as follows: “[T]he courts will give effect to the action of the majority of members of a congregational or independent religious organization . . . insofar as regards civil or property rights when they have acted in harmony with church rules, customs and practices at a meeting properly called.” ¹³ The United States Supreme Court similarly has observed that “[m]ajority rule is generally employed in the governance of religious societies.”¹⁴ Thus it has been held that a majority of a church's membership has the authority to sell a parsonage and acquire a new one;¹⁵ to oust a minority group that had wrongfully and violently seized possession of the church building;¹⁶ to call a meeting of the church;¹⁷ to expel members;¹⁸ to disaffiliate from one denomination and associate with another;¹⁹ to adopt bylaws;²⁰ to authorize church activity and direct or control disposition of church property;²¹ and to select and remove a minister.²² The general authority possessed by the members of a congregational church exists whether the church is incorporated or unincorporated. However, state corporate law may grant the members of an incorporated church additional specific powers. For example, the Model Nonprofit Corporation Act, which has been adopted in whole or in part in a majority of states, specifies that “all books and records of a corporation may be inspected by any member, or his agent or attorney, for any proper purpose at any reasonable time.”²³

b. Two Approaches to Judicial Intervention in Church Membership
Determinations

(1) Judicial Non--Intervention

In Watson v. Jones,²³ the United States Supreme Court developed a framework for the judicial review of ecclesiastical disputes that has persisted essentially unchanged until today, more than a century later. The Court began its landmark opinion by acknowledging that “religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints.” Though recognizing in principle the authority of civil courts to address the “rights of property, or of contract” of ecclesiastical organizations or officers, the Court proceeded to severely limit this authority. Most importantly, the Court held that “whenever the questions of discipline, or of faith, of ecclesiastical rule, custom, or law have been decided by the highest church judicatory to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them . . . .”

In 1872, one year after the Watson decision, the Supreme Court emphasized that it had “no power to revise or question ordinary acts of church discipline, or of excision from membership,” nor to “decide who ought to be members of the church, nor whether the excommunicated have been regularly or irregularly cut off.”²⁴ Many courts have followed this rule of judicial “non--intervention,” concluding that the discipline and dismissal of church members is exclusively a matter of ecclesiastical concern and thus the civil courts are without authority to review such determinations. This position generally is based upon the first amendment guarantees of religious freedom and the nonestablishment of religion, or upon the fact that by joining the church a member expressly or implicitly consents to the authority of the church to expel members.²⁵ As noted in the preceding section, the United States Supreme Court has held that all who unite themselves with a religious organization do so with implied consent to its bylaws and procedures.²⁶ Another court has noted: “A party having voluntarily assented to becoming a member of the local church thereby subjects himself to the existing rules and procedures of said church and cannot deny their existence.”²⁷ It is therefore held that a church may promulgate rules governing the expulsion or excommunication of its members, and such rules bind the church's members.

There is little doubt that the civil courts are now required to accept the determinations of hierarchical churches concerning ecclesiastical discipline. In 1976, the United States Supreme Court ruled that

the 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.²⁸

The Supreme Court further noted, in the same decision, that

[w]e have concluded that whether or not there is room for “marginal civil court review” under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes, no “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. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense “arbitrary” must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly require the church adjudicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the first amendment prohibits . . . .²⁹

Permitting civil courts to review the membership determinations of hierarchical churches would “undermine the general rule that religious controversies are not the proper subject of civil court inquiry.”³⁰ In other words, the fact that a hierarchical church's determination regarding membership status was “arbitrary” (in the sense that it violated the church's own internal rules) is not a justification for civil court review. This extraordinary rule demonstrates the Court's commitment to church autonomy in the context of membership determinations involving hierarchical churches.

Membership determinations based on “fraud or collusion” may constitute a basis for marginal civil court review. The Court left this question unanswered. However, it did note that the concepts of fraud or collusion both involve “church tribunals [acting] in bad faith for secular purposes.” It is virtually inconceivable that such a standard could ever be established, particularly in view of the higher evidentiary standard (“clear and convincing evidence”) that generally applies to allegations of fraud.

What is a “hierarchical church”? One legal commentator defines “hierarchical” and “congregational” churches as follows:

At least three kinds of internal structure, or “polity,” may be discerned: congregational, presbyterial, and episcopal. In the congregational form each local congregation is self--governing. The presbyterial polities are representative, authority being exercised by laymen and ministers organized in an ascending succession of judicatories—presbytery over the session of the local church, synod over the presbytery, and general assembly over all. In the episcopal form power reposes in clerical superiors, such as bishops. Roughly, presbyterial and episcopal polities may be considered hierarchical, as opposed to congregational polities, in which the autonomy of the local congregation is the central principle.³¹

Do the civil courts have authority to review the membership determinations of congregational churches? It is here that some courts have limited the Supreme Court's 1976 ruling to hierarchical churches and intervened. Such cases are reviewed in the next section. However, a number of courts have been unwilling to intervene in the membership determinations of congregational churches. Some courts have concluded that the principle enunciated by the Supreme Court in its 1976 decision in Milivojevich³² is broad enough to apply to congregational churches. For example, a federal district court in Virginia ruled that “[i]t is clear that the fact that the local church may have departed arbitrarily from its established expulsion procedures in removing [members] is of no constitutional consequence [citing Milivojevich].”³³ A federal district court in Ohio acknowledged that “[i]t is not altogether clear whether the Supreme Court, if confronted with an internal dispute within a congregational church, would follow the [Milivojevich] analysis in all respects.”³⁴ However, the court concluded that “because the `hands off' policy espoused by the [Supreme Court in Milivojevich] is of constitutional dimension, we find it difficult to justify the application of a different standard where a congregational church is involved.” The court concluded that (a) church discipline is an ecclesiastical matter in a congregational church,³⁵ and (b) “unless the internal disciplinary decisions of [a congregational church] are tainted by fraud or collusion, or constitute an extreme violation of the rights of a disciplined member, civil court inquiry with respect to the underlying reasons for church disciplinary action is constitutionally impermissible.”

A federal district court in the District of Columbia, while acknowledging that Milivojevich involved a hierarchical church, concluded that “[we] 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 [the membership determinations of a congregational church].”³⁶ The court noted that membership determinations typically involve standards of membership that are intrinsically ecclesiastical. For example, in this case, the congregational church's bylaws specified that “members are expected . . . to be faithful in all duties essential to the Christian life.” The court could not contemplate “any criterion for membership that could more directly implicate ecclesiastical considerations protected by the first amendment . . . .” It concluded that the church's

own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention. It is well--settled that religious controversies are not the proper subject of civil court inquiry. Religious bodies must be free to decide for themselves, free from state interference, matters which pertain to church government, faith and doctrine.³⁷

Some courts have expressed concern that the rule of judicial non--intervention may lead to injustice without a remedy. For example, one Supreme Court justice has observed that “[i]f the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness.”³⁸

It also has been noted that “[w]hen a faction of the church arrogates authority to itself, disrupts the organization and sets at naught well--defined rules of church order, there is no recourse left for those who desire their rights settled through orderly processes but resort to the courts.”³⁹

(2) Marginal Civil Court Review

Many courts have been willing to intervene, in limited circumstances, in controversies regarding church membership determinations. This section will review the grounds for “marginal civil court review” most commonly cited by the courts.

(a) Interference With “Civil, Contract, or Property Rights”

Although nearly all courts recognize that they have no authority to review purely ecclesiastical matters, some courts have been willing to review the expulsion of a church member if the expulsion affects “civil, contract, or property rights.”⁴⁰ The precise meaning of the term civil, contract, or property rights is unclear. Some courts interpret the exception broadly. To illustrate, it has been held that church membership in itself constitutes a “property right” since church members comprise the body of persons entitled to the use and enjoyment of church properties, and therefore the courts have authority to review all expulsions of church members.⁴¹ It also has been argued that civil rights are involved in the expulsion of church members because of “the humiliation and hurt to personality, the injury to character, reputation, feelings and personal rights and human dignity.”⁴² Similarly, it has been held that (1) the expulsion of a member from a church can constitute a serious emotional deprivation which, when compared to some losses of property or contract rights, can be far more damaging to an individual; (2) the loss of the opportunity to worship in familiar surroundings is a valuable right that deserves the protection of the law; and (3) except in cases involving religious doctrine, there is no reason for treating religious organizations differently from other nonprofit organizations, whose membership expulsions are routinely reviewed by the courts.⁴³

Other courts take a far narrower view. Thus, it has been held that church membership in itself does not constitute a property right,⁴⁴ a contract right,⁴⁵ or a civil right.⁴⁶

(c) Compliance With Church Charter and Bylaws

In 1872, the Supreme Court commented that “[church trustees] cannot be removed from their trusteeship by a minority of the church society or meeting, without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules.”⁴⁸ In the years that followed, a number of civil courts intervened in church membership determinations to ensure that they were in compliance with a church's charter or bylaws. However, this basis for intervening in such disputes came to an abrupt halt in 1976, at least with respect to hierarchical churches, when the Supreme Court announced:

We have concluded that whether or not there is room for “marginal civil court review” under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes, no “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. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense “arbitrary” must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly require the church adjudicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the first amendment prohibits . . . .⁴⁹

The Court added that “recognition of . . . an arbitrariness exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry.”⁵⁰

Since 1976, a few courts have intervened in the membership determinations of congregational churches to determine whether church rules were followed. For example, where former church members complained that they had been removed improperly from the membership roll at a church meeting convened off of church premises without notice to them of either the location of the meeting or the fact that their dismissal would be discussed, a court concluded that it did have jurisdiction to determine whether the members were expelled in accordance with the charter and bylaws of the church.⁵¹ The court cautioned, however, that if the church had complied with its charter and bylaws, the court would have no jurisdiction to proceed in its review.

Expelled church members' allegations that their expulsions deviated from established church procedures have also been reviewed by the courts in the following contexts: (1) members who allegedly were ineligible to vote according to church bylaws were permitted to vote for the expulsion of certain members;⁵² (2) a pastor conducted a church meeting without prior notice, and, without a hearing of any kind, members present voted to expel an opposing faction from membership;⁵³ and (3) members present at a special meeting for which no prior notice had been given voted to summarily expel all members of the church who identified themselves, through attendance or support, with any other church.⁵⁴

Most of the court rulings recognizing noncompliance by a church with its own internal rules as a basis for civil court review either predate the Supreme Court's 1976 ruling in the Milivojevich case, or involve congregational churches. Clearly, the civil courts no longer have the authority, since 1976, to review the membership determinations of hierarchical churches on the basis of alleged noncompliance with internal church rules. And, some courts view the constitutional analysis set forth in the Milivojevich ruling to be similarly applicable to congregational churches.⁵⁵

(d) Expulsion Based on Fraud or Collusion

In 1928, the United States Supreme Court ruled that “[i]n the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical . . . are accepted in litigation before secular courts as conclusive . . . .”⁵⁶ However, in 1976 the Court held that ecclesiastical determinations could not be reviewed on account of “arbitrariness,” and refused to decide whether or not “fraud” or “collusion” remained permissible grounds for civil court review.⁵⁷ The Court observed, “[w]e have concluded that whether or not there is room for `marginal civil court review' under the narrow rubrics of `fraud' or `collusion' when church tribunals act in bad faith for secular purposes, no `arbitrariness' exception exists.” Accordingly, “fraud” and “collusion” may constitute grounds for civil court review of internal church determinations regarding membership. That is all that can be said until the Supreme Court provides more guidance.

Some courts have intervened in internal church controversies regarding membership determinations on the basis of fraud or collusion.⁵⁸ There are three points to emphasize, however. First, the Supreme Court has refrained from ruling on the current  viability of civil court review based on fraud or collusion. Second, the higher burden of proof normally required to establish fraud (i.e., clear and convincing evidence) may apply.⁵⁹ And third, in 1976 the Supreme Court interpreted “fraud” or “collusion” to imply church actions that are committed “in bad faith for secular purposes.” Certainly, it is highly unlikely that any aggrieved member could prove facts satisfying this definition, particularly if the “clear and convincing evidence” standard applies.

(e) Interpretation of Contested Terminology

Occasionally a court will agree to review an expulsion based on some vague condition of membership. For example, when a church's bylaws stipulated that failure to attend church or make financial contributions “without a reasonable excuse” would result in termination of membership, a court agreed to resolve the disputed phrase “without a reasonable excuse.”⁶⁰ Another court agreed to determine whether a church's charter or bylaws made “extending the right hand of fellowship” a condition of membership where this was a disputed question.⁶¹

The better rule is that churches themselves must interpret their own internal rules regarding membership qualifications and expulsions. In the landmark Watson case,⁶² the Supreme Court observed that “[t]he right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members . . . is unquestioned.” The Court also observed in Watson that:

Each [religious organization] . . . has a body of constitutional and ecclesiastical law of its own, to be found in their [sic] written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so.⁶³

Similarly, the Court observed:

The decisions of ecclesiastical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offense against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religion or good morals.⁶⁴

In 1952, the Supreme Court ruled that the first amendment guaranty of religious freedom gives religious organizations “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.”⁶⁵ Further, the Supreme Court's prohibition of civil court interpretation of church doctrine will serve as an additional bar to civil court interpretation of many contested terms contained in church bylaws.⁶⁶

c. Preconditions to Civil Court Review

It is well--settled that the courts will not review church membership expulsions unless the expelled members have exhausted all available procedures within their church for obtaining review of their expulsion. Thus, if an expelled member of a local church has not pursued all remedies provided by his or her local church and a parent denomination for the review of the expulsion, the courts will not intervene.⁶⁷

d. Remedies for Improper Expulsion

(1) Decisions Refusing to Recognize a Legal Remedy

Obviously, courts that follow the rule of non--intervention in internal church membership determinations will not provide disciplined or dismissed members with any legal remedy since no cognizable legal harm has occurred. To illustrate, a federal appeals court refused to permit a “disfellowshiped” Jehovah's Witness to sue her former church for defamation, invasion of privacy, fraud, and outrageous conduct.⁶⁸

The disfellowshiped member claimed that she had been aggrieved by the Jehovah's Witness practice of “shunning” which requires members to avoid all social contacts with disfellowshiped members. The court, acknowledging that the harm suffered by disfellowshiped members is “real and not insubstantial,” nevertheless concluded that permitting disfellowshiped members to sue their church for emotional injuries “would unconstitutionally restrict the Jehovah's Witness free exercise of religion.” The constitutional guaranty of freedom of religion, observed the court, “requires that society tolerate the type of harm suffered by [disfellowshiped members] as a price well worth paying to safeguard the right of religious difference that all citizens enjoy.”

Similarly, a state supreme court ruled that a husband and wife who had been “disfellowshiped” from a Jehovah's Witness congregation could not sue the church for defamation.⁶⁹ The couple had been disfellowshiped for marrying contrary to church doctrine. In announcing the decision to the congregation, the overseer remarked that the couple had been living in adultery according to church teachings and had been disfellowshiped for “conduct unbecoming Christians.” The overseer added that “we got the filth cleaned out of the congregation, now we have God's spirit.” The court concluded that such comments were not defamatory since they were privileged and protected by the constitutional guaranty of religious freedom. As to the defense of privilege, the court remarked that “it is firmly established that statements of church members made in the course of disciplinary or expulsion proceedings, in the absence of malice, are protected by a qualified privilege.” The remarks of the overseer were privileged, concluded the court, and did not involve malice since “malice is defined as reckless disregard for the truth [and] does not include hatred, personal spite, ill--will, or a desire to injure.” The court added that it “would be violating the [church's] right to free exercise of religion if [it] were to find [the church's] statements actionable under state defamation law.”

A state appeals court ruled that it lacked jurisdiction to resolve the claims of parishioners that they had suffered intentional infliction of emotional distress as a result of their priest's actions.⁷⁰ Several parishioners withheld their financial support from the church because of their opposition to certain changes that a new priest had initiated. In response to this action, the priest refused to give communion to certain dissident members in the presence of the entire congregation, and verbally criticized others during services. The court observed that “it is well settled that courts, both federal and state, are severely circumscribed by [the state and federal constitutions] in the resolution of disputes between a church and its members. Such jurisdiction is limited to property rights which can be resolved by application of civil law.” In rejecting the members claim that the church had intentionally caused them emotional distress, the court remarked: “This is quite a modern tort not yet recognized by the highest court in this state. Hopefully, it never will be. The awesome flood of litigation has already risen to the gunnels. If the courts were to offer to extract money from everyone who intentionally makes someone else mad, we would surely go under.”

A federal court in New York ruled that it had no authority to stop a religious organization from excommunicating one of its members.⁷¹ The member had been threatened with excommunication because of a lawsuit he had filed against the religious organization. The court observed:

A long line of Supreme Court cases holds that, where a religious body adjudicates relations among its members, courts will not interfere with the decisions of those bodies made in accordance with those bodies' rules. This line of cases is based on the Court's observation that voluntary religious organizations are much like any other voluntary organization and are in the best position to interpret their own rules. As the Court stated in [a previous decision]: “It is not to be supposed that the judges of the civil courts can be as competent in ecclesiastical law and religious faith . . . as the ablest men in each [faith] are in reference to their own. . . .” Thus, federal courts will not interfere with the decisions of a religious body adjudicating the relationships of members in that body; as a matter of jurisprudence federal courts will defer to the decision of the religious body.⁷²

The court also noted that “[i]n other cases, the Supreme Court has held that it is contrary to the first amendment for a court, either federal or state, to engage in an examination of ecclesiastical doctrine, and unless such examination cannot be avoided, a court must defer to the decisions of a religious body.” The court noted that in this case, the member had asked the court “to do something it is not able to do either as a matter of federal jurisprudence or under the first amendment: decide whether [he] should be excommunicated from his religious community for prosecuting this suit . . . .” The court acknowledged that if the member were in fact threatened with imminent physical harm, then “he could come to this court for a remedy.” However, “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.” In conclusion, the court permitted the member to pursue a judicial resolution of his dispute with the religious organization, and ruled that the member's threatened excommunication was “beyond the powers of this court to stop, so long as the excommunication results in nothing more than [the member] being excluded from his religious community.”

(2) Decisions Recognizing a Legal Remedy

(a) The Guinn Case

Those courts that have followed the rule of “marginal civil court review” of internal church membership determinations occasionally will recognize that improperly disciplined or dismissed members have a legal remedy against their church. The best illustration of this is a 1989 ruling of the Oklahoma Supreme Court.⁷³ Because of the significance of this ruling, it will be considered in detail. In 1974, a single woman (the “parishioner”) moved with her minor children to Collinsville, Oklahoma, and soon became a member of a local Church of Christ congregation. The first few years of the parishioner's association with the church were without incident. In 1980, however, three “elders” of the church confronted the parishioner with a rumor that she was having sexual relations with a local resident who was not a member of the congregation. According to the elders, they investigated the rumor because of the church's teaching that church leaders are responsible to monitor the actions of church members and confront and discuss problems with anyone who is “having trouble.” The Church of Christ follows a literal interpretation of the Bible, which it considers to be the sole source of moral and religious guidance.

When confronted with the rumor, the parishioner admitted violating the Church of Christ prohibition against fornication. As a transgressor of the church's code of ethics, the parishioner became subject to the disciplinary procedure set forth in Matthew 18:13--17. This procedure provides: “If thy brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou has gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church; but if he neglect to hear the church, let him be unto thee as a heathen man and a publican.” Pursuant to this procedure, the church elders confronted the parishioner on three occasions over the course of a year. On each occasion, the elders requested that the parishioner repent of her fornication and discontinue seeing her companion. On September 21, 1981, a few days following the third encounter, the elders sent the parishioner a letter warning her that if she did not repent, the “withdrawal of fellowship” process would begin.

Withdrawal of fellowship is a disciplinary procedure that is based on Matthew 18 and carried out by the entire membership in a Church of Christ congregation. When a member violates the church's code of ethics and refuses to repent, the elders read aloud to the congregation those Scripture passages which were violated. The congregation then withdraws its fellowship from the wayward member by refusing to acknowledge his or her presence. According to the elders, this process serves the dual purpose of encouraging transgressors to repent and return to fellowship with other members, and it maintains the purity and holiness of the church and its members. The parishioner had seen one incident of fellowship withdrawal, and was fully aware that such a process would result in the publication of her unscriptural conduct to the entire congregation. Accordingly, she contacted a lawyer who sent the elders a letter signed by the parishioner, and dated September 24, 1989, in which the parishioner clearly stated that she withdrew her membership. The attorney asked the elders not expose the parishioner's private life to the congregation (which comprised about five percent of the town's population).

On September 25, the parishioner wrote the elders another letter imploring them not to mention her name in church except to tell the congregation that she had withdrawn from membership. The elders ignored these requests, and on September 27 (during a scheduled service) they advised the congregation to encourage the parishioner to repent and return to the church. They also informed the congregation that unless the parishioner repented, the verses of Scripture that she had violated would be read aloud to the congregation at the next service and that the withdrawal of fellowship procedure would begin. The parishioner met with one of the elders during the following week, and she was informed that her attempt to withdraw from membership was not only doctrinally impossible, but could not halt the disciplinary process that would be carried out against her. The parishioner was publicly branded a fornicator when the scriptural standards she had violated were recited to the congregation at a service conducted on October 4. As part of the disciplinary process the same information regarding the parishioner's transgressions was sent to four other area Church of Christ congregations to be read aloud during services.

The parishioner sued the three elders and local church, asserting that their actions both before and after her withdrawal from church membership on September 25, 1981 (the date of her letter to the church), invaded her privacy and caused her emotional distress. The invasion of privacy claim alleged that the elders and church had “intruded upon her seclusion,” and in addition, had “unreasonably publicized private facts about her life by communicating her transgressions to the [home church] and four other area Church of Christ congregations.” A jury ruled in favor of the parishioner, and awarded her $205,000 in actual damages, $185,000 in punitive damages, and $45,000 in interest. The decision was appealed to the Oklahoma Supreme Court.

The elders and church argued that the first amendment guaranty of religious freedom prevented them from being sued as a result of their exercise of ecclesiastical discipline. The court acknowledged that the United States Supreme Court has banned civil court review of “purely ecclesiastical” matters, but it concluded that the discipline of church members is not always immune from civil court review. It ruled that the first amendment prevented the church and its elders from being sued for their actions prior to the parishioner's withdrawal (which, according to the court, occurred on September 24 when the parishioner sent her letter of withdrawal to the church), but that the church and elders could be sued for actions occurring after the parishioner's withdrawal. With regard to the parishioner's claim for “pre--withdrawal” damages, the court noted that “under the first amendment people may freely consent to being spiritually governed by an established set of ecclesiastical tenets defined and carried out by those chosen to interpret and impose them.” The court continued: “Under the first amendment's free exercise of religion clause, parishioner had the right to consent as a participant in the practices and beliefs of the Church of Christ without fear of governmental interference . . . . [H]er willing submission to the Church of Christ's dogma, and the elders' reliance on that submission, collectively shielded the church's pre--withdrawal, religiously--motivated discipline from scrutiny through secular [courts].”

As authority for this proposition, the court quoted from a decision of the United States Supreme Court:

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it.⁷⁴

The court concluded that “insofar as [the parishioner] seeks vindication for the actions taken by the elders before her membership withdrawal, her claims are to be dismissed.”

Could the parishioner sue the elders and church for actions occurring after her withdrawal? The elders said no, pointing out that the Church of Christ contains no doctrinal provision for withdrawal from membership. Rather, a member remains a part of a congregation for life. Like those born into a family, they may leave but they can never really sever the familial bond. Accordingly, a court determination that the parishioner effectively withdrew from membership and thereby terminated the church's authority to discipline her would amount to “a constitutionally impermissible state usurpation of religious discipline.” The elders also emphasized that the disciplinary procedure mandated by Matthew 18:13--17 already had begun at the time of the parishioner's alleged withdrawal (the elders had confronted her on three occasions), and therefore the parishioner could not preempt the disciplinary process by an attempted withdrawal. The parishioner asserted that she had the authority to withdraw from membership in the church, and that her withdrawal terminated the church's authority to discipline her.

The court concluded that the parishioner's September 24, 1981 letter was an effective withdrawal from church membership, and it agreed with the parishioner that the elders and church could be sued for their actions following her withdrawal. It observed:

The first amendment of the United States Constitution was designed to preserve freedom of worship by prohibiting the establishment or endorsement of any official religion. One of the fundamental purposes of the first amendment is to protect the people's right to worship as they choose. Implicit in the right to choose freely one's own form of worship is the right of unhindered and unimpeded withdrawal from the chosen form of worship. . . . [The local church], by denying the parishioner's right to disassociate herself from a particular form of religious belief is threatening to curtail her freedom of worship according to her choice. Unless the parishioner waived the constitutional right to withdraw her initial consent to be bound by the Church of Christ discipline and its governing elders, her resignation was a constitutionally protected right.⁷⁵

The court concluded that the parishioner had not “waived” her constitutional right to withdraw from church membership. A waiver, observed the court, is a “voluntary and intentional relinquishment of a known right.” The parishioner testified that she had never been informed by the church of its teaching that membership constitutes an insoluble bond of lifetime commitment, and accordingly she was incapable of knowingly and intentionally “waiving” such a right.

The court summarized its thinking as follows:

Disciplinary practices involving members of an ecclesiastical association . . . are among those hallowed first amendment rights with which the government cannot interfere. . . . [Nevertheless] first amendment protection does not extend to all religiously--motivated disciplinary practices in which ecclesiastical organizations might engage. By its very nature, ecclesiastical discipline involves both church and member. It is a means of religious expression as well as a means of ecclesiastically judging one who transgresses a church law which one has consented to obey. The right to express dissatisfaction with the disobedience of those who have promised to adhere to doctrinal precepts and to take ecclesiastically--mandated measures to bring wayward members back within the bounds of accepted behavior, are forms of religious expression and association which the first amendment's free exercise clause was designed to protect and preserve. And yet the constitutionally protected freedom to impose even the most deeply felt, spiritually--inspired disciplinary measure is forfeited when the object of “benevolent” concern is one who has terminated voluntary submission to another's supervision and command. While the first amendment requires that citizens be tolerant of religious views different from and offensive to their own, it surely does not require that those like parishioner, who choose not to submit to the authority of a religious association, be tolerant of that group's attempts to govern them. Only those who “unite themselves” in a religious association impliedly consent to its authority over them and are bound “to submit to it.” Parishioner voluntarily joined the Church of Christ and by so doing consented to submit to its tenets. When she later removed herself from membership, petitioner withdrew her consent, depriving the church of the power actively to monitor her spiritual life through overt disciplinary acts. No real freedom to choose religion would exist in this land if under the shield of the first amendment religious institutions could impose their will on the unwilling and claim immunity from secular [courts] for their tortious acts.⁷⁶

The court distinguished a federal appeals court decision cited by the elders which held that a dismissed member of the Jehovah's Witness church could not sue her former church for the emotional distress, defamation, and invasion of privacy that it allegedly caused by its practice of “shunning” her.⁷⁷ Unlike the conduct of the Church of Christ elders, the practice of shunning the former Jehovah's Witness was “passive.” The member abandoned her membership in the church, and the church simply instructed its members to avoid any contact with her. The court observed:

For purposes of first amendment protection, religiously--motivated disciplinary measures that merely exclude a person from communion are vastly different from those which are designed to control and involve. A church is constitutionally free to exclude people without first obtaining their consent. But the first amendment will not shield a church from civil liability for imposing its will, as manifested through a disciplinary scheme, upon an individual who has not consented to undergo ecclesiastical discipline.⁷⁸

The court rejected the elders' claim that their statements to the congregations were protected by a “conditional privilege.” The court acknowledged that a statement is conditionally privileged if “the circumstances under which the information is published lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.” The court concluded that the elders' statements were not protected by a conditional privilege since the “parishioner was neither a present nor a prospective church member” at the time of the elders' public statements, and accordingly that the “congregation did not share the sort of `common interest' in parishioner's behavior” that would render the elders' statements privileged.

The court acknowledged that “communicating unproven allegations of a present or prospective member's misconduct to the other members of a religious association is a privileged occasion because the members have a valid interest in and concern for the behavior of their fellow members and officers.” However, it concluded that the elders' claim to a conditional privilege “as it pertains to their actions occurring after parishioner's withdrawal from membership, is without merit.”

The court acknowledged that churches have a greater interest in receiving information concerning disciplined or dismissed clergy, and accordingly the “common interest privilege” is broader than in the context of lay member discipline. The court concluded that a congregation has “a common interest in being informed about the questionable conduct of one among them who expressed the desire to continue ministering to them or to one of the neighboring [Church of Christ] assemblies. Here, parishioners expressed no interest in continuing her association with [her former church] or with any other Church of Christ [congregation].” Accordingly, the church simply had no “common interest” in her post--withdrawal discipline that would make the elders' statements conditionally privileged.

What is the relevance of the Oklahoma Supreme Court's decision to local churches? Obviously, the court's decision is binding only upon churches in the state of Oklahoma. Nevertheless, the case represents one of the most extensive discussions of church discipline by any court, and accordingly it probably will be given special consideration (and no doubt be followed) by the courts of many other states. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

1. The discipline of church members (i.e., persons who have not withdrawn from membership) is a constitutionally protected right of churches. If discipline of church members is a possibility in your church, then you should adopt a disciplinary procedure that ideally is based upon and specifically refers to scriptural references. The procedure should specify the grounds for discipline, and describe the process that will be conducted. Avoid references to loaded phrases such as “due process,” which have no legal relevance in the context of church law and only confuse the process.

2. The first amendment guaranty of religious freedom insulates the pre--withdrawal discipline of church members from legal liability in most if not all cases. The Oklahoma court acknowledged that there might be some pre--withdrawal disciplinary actions which would be so extreme as to lose their constitutional protection. However, it concluded that the elders' conduct did not constitute such a case. Recall that the elders' pre--withdrawal actions were limited to three meetings with the parishioner and involved no public dissemination of her alleged misconduct.

3. Discipline of persons who have effectively withdrawn their church membership is not a constitutionally protected activity, and accordingly a church that engages in such conduct can be sued under existing theories of tort law. In the Oklahoma case, the parishioner sued the church (and its elders) for both invasion of privacy and intentional infliction of emotional distress. The parishioner asserted that the church invaded her privacy in two ways. First, the actions of the elders “intruded upon her seclusion.” Second, the elders' notification of their own congregation (as well as four other local congregations) of the parishioner's misconduct amounted to an unreasonable public disclosure of private facts. Both of these assertions constitute well--recognized variations of the tort of invasion of privacy. The parishioner also claimed that the elders' conduct amounted to an intentional infliction of emotional distress (another well--recognized tort), since their actions were extreme and outrageous and of an intentional and reckless nature which caused her severe emotional distress and shock (particularly since the parishioner's minor children were present at the church service during which the elders publicized her misconduct).

4. The court concluded that the constitutional right of a church member to withdraw from church membership is protected by the first amendment guaranty of religious freedom unless a member has waived that right. An effective waiver requires the voluntary relinquishment of a known right. In other words, a member can waive the right to resign by a voluntary and intentional act, but not through inadvertence or ignorance. A church wishing to restrict the right of disciplined members to withdraw must obtain a voluntary and knowing waiver by present and prospective members of their constitutional right to withdraw. How can this be done? One approach would be for a church to adopt a provision in its bylaws preventing members from withdrawing if they are currently being disciplined by the church. Obviously, the disciplinary procedure must be carefully specified in the church bylaws so there is no doubt whether the disciplinary process has been initiated with respect to a member.

Most courts have held that members are “on notice” of all of the provisions in the church bylaws, and consent to be bound by them when they become members. As a result, the act of becoming a member of a church with such a provision in its bylaws may well constitute an effective waiver of a member's right to withdraw (if the disciplinary process has begun). Such a conclusion is not free from doubt, however. To be as safe as possible, a church could explain to present and prospective members the provision in the bylaws limiting their right to withdraw, and explaining to them that by becoming members they will be waiving their right to withdraw from membership if they are under discipline by the church. The problem in the Oklahoma case was that the church attempted to discipline the parishioner following her withdrawal. According to the court's ruling, the church could have avoided liability by obtaining an effective waiver. Unfortunately, the court did not discuss what forms of waiver it would find acceptable.

5. The Oklahoma court concluded that a church retains the right to engage in “passive” discipline of former members. It approved a federal appeals court decision rejecting the claim of a former Jehovah's Witness that her former church had defamed her, invaded her privacy, and caused her emotional distress by its practice of “shunning” former members. The court observed that the decision of the Jehovah's Witness church “to turn away from her was protected under the first amendment as a passive exercise of religious freedom, the legitimacy of which was not grounded in her prior acquiescence.”

6. The court acknowledged that church members have a right to know about matters in which they have a “common interest,” and that this right permits some disclosures to church members concerning the discipline or misconduct of current members. Statements by church leaders to church members concerning the discipline of current members are conditionally privileged—meaning that the disciplined member cannot successfully sue the church for making such disclosures unless the church acted maliciously (i.e., it either knew that the disclosures were false or made them with a reckless disregard as to their truthfulness). It must be emphasized that this privilege only protects disclosures made to church members about church members. Disclosures made to a congregation during a worship service in which non--members are present would not be protected. And, statements about former members are not protected (presumably, non--members would need to be removed from the sanctuary before statements regarding church discipline could be made). The court observed: “Communicating unproven allegations of a present or prospective member's misconduct to the other members of a religious association is a privileged occasion because the members have a valid interest in and concern for the behavior of their fellow members and officers.”

Obviously, the safest course of action for a church board that has disciplined a member is to refrain from disclosing any information to the congregation. If the board decides that the congregation should be informed, then a general statement that the individual is “no longer a member” is the safest approach. If the board would like to share more details with the church, then it should do so at a congregational meeting or service only after all non--members have been removed. Members present should be instructed to retain the information presented in the strictest confidence. Churches following the disciplinary procedure outlined in Matthew 18 ultimately may wish to let the church membership make the final determination regarding the guilt or innocence of an accused member (and any penalty to be imposed). If so, the church must be careful to remove all non--members from such a meeting, and to apprise the membership of the confidentiality of the information that is disclosed. It would be appropriate for the congregation to adopt a resolution at such a meeting committing itself to maintaining all confidences shared during the meeting.

7. Churches have greater protection in making statements about current or former clergy, since the congregation continues to have “a common interest in being informed about the questionable conduct of one among them who expresses the desire to continue ministering to them or to one of the neighboring assemblies.” Accordingly, disciplined clergy may find it more difficult to sue their church or denomination.

8. Churches wishing to reduce the risk of litigation by disciplined members (or any other members) should consider, in addition to the observations made above, the adoption of a binding arbitration policy. Such a policy, if adopted by the church membership at a congregational meeting as an amendment to the church's bylaws, can force church members to resolve their disputes (with the church, pastor, board, or other members) within the church consistently with the pattern suggested by the apostle Paul in 1 Corinthians 6:1--8. While a discussion of arbitration policies is beyond the scope of this text, churches should recognize that arbitration is an increasingly popular means of resolving disputes in the secular world since it often avoids the excessive costs and delays associated with civil litigation and the uncertainty of jury verdicts. Of course, any arbitration policy should be reviewed by an attorney and the church's liability insurer before being implemented. A legally effective and properly adopted arbitration policy can force disgruntled members to take their complaints to a panel of church representatives rather than create a costly and protracted spectacle in the secular courts. Such an approach, at a minimum, merits serious consideration by any church.

On the whole, churches are benefited by the Oklahoma Supreme Court's ruling, since the court recognized that (1) churches have a constitutional right to discipline members, (2) statements made to church members about disciplined members are “conditionally privileged,” (3) churches have broad authority to discipline clergy: and (4) churches have a constitutionally protected right to discipline a former member who has withdrawn from membership if the former member has effectively waived his or her right to withdraw from membership. The court's ruling does not go as far as some other court decisions in recognizing a broad authority on the part of churches to discipline persons who have withdrawn from church membership. And, the court failed to adequately refute the elders' claim that the parishioner's right to withdraw was suspended when the elders commenced the church's disciplinary process (a year before the parishioner's withdrawal). Finally, the court acknowledged (on the basis of United States Supreme Court rulings) that “all who unite themselves to [a church] do so with an implied consent to [its] government, and are bound to submit to it.” Yet, it greatly limited the effect of this language by permitting the parishioner to completely avoid the church's well--defined disciplinary process (with which she had been familiar) merely because she did not technically “waive” her right to withdraw. This aspect of the court's ruling is unfortunate—particularly since the court provided no guidance whatever to churches regarding the form and contents of an effective waiver.

(b) Other Decisions

Persons who believe that they have been improperly expelled from membership in a church have a number of potential remedies available to them. First, they may be able to obtain judicial review of the expulsion if they reside in a jurisdiction that permits marginal civil court review of church membership determinations. If a court agrees to review the expulsion and finds that it was deficient on the basis of one of the grounds discussed in this section, it may declare the expulsion void and reinstate the expelled member.⁷⁹ Second, wrongfully expelled members may be able to recover monetary damages.⁸⁰ Third, they may petition a court for an injunction prohibiting a church from interfering with his rights or privileges as a member.⁸¹ Fourth, they may seek a declaratory judgment setting forth their rights.⁸² Fifth, in some cases they may sue their church or certain of its members for defamation.

Defamation generally is defined to include the following elements: (1) a public statement, whether oral or in writing; (2) reference to another; (3) that is false; and (4) which injures the reputation of the other. Truth is generally an absolute defense to a defamation action. Thus if the allegedly defamatory statements were true, an expelled member will not be able to sue for defamation even if his or her reputation has been injured.

Defamation actions are limited in another important way. Most jurisdictions recognize that statements made by  persons in a reasonable manner and for a proper purpose to others having a common interest in the communication are “qualifiedly privileged” and immune from attack unless they are made with malice. Malice in this context refers to either a knowledge that the communication was false or a reckless disregard concerning its truth or falsity.

The common interest among church members about church matters is likely sufficient to create a qualified privilege for communications between members on subjects relating to the church's interests. To illustrate, where expelled church members had been publicly referred to by other members as “totally unworthy of the continued confidence, respect and fellowship of a great church,” as willing to lie in order to harm their church, and as possessed of a vile spirit, a court concluded that the remarks were entitled to a qualified privilege. The court nevertheless considered the remarks defamatory because they had been made either recklessly or with a knowledge of their falsity.⁸³ In another case, an expelled member alleged that at various times in meetings of his religious group other members had stated that he was a disgrace to his religion, that his conduct was scandalous, that he was guilty of evil conduct and was a man of low character, and that his conduct was so bad that it could not be described publicly. A court, in finding such statements malicious, stated the general rule as follows:

[M]embers of such bodies may report on the qualifications of applicants, prefer charges against fellow members, offer testimony in support of the charges, and make proper publications of any disciplinary action that may be taken, without liability for any resultant defamation, so long as they act without malice. The rule relative to qualified privilege is always subject to the limitation, as stated, that in connection with such activities the parties must act without malice. When a matter which otherwise would be a qualifiedly privileged communication is published falsely, fraudulently, and with express malice and intent to injure the persons against whom it is directed, the communication loses its qualifiedly privileged character and the parties lay themselves liable to a suit for damages in an action for libel or slander.⁸⁴

Obviously, members who are expelled from a church cannot be responsible for the church's debts and liabilities.⁸⁵

Unincorporated Associations

Corporations

Church Records

Reporting Requirements for Churches

Church Names

Church Officers, Directors, and Trustees

Church Business Meetings

Removing Disruptive Individuals

Powers of a Local Church

Church Merger and Consolidation

Dissolution of a Church