Opposition Brief — Crowder v. Southern Baptist Convention

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| Supreme Court, U.S,

FILED

JAN 28 1988

aHOSEPH F. SPANIOL, JR,

Sere ‘

Qiticesereee<~—-

In The H

Supreme Court of the United States

October Term, 1987

——)

ROBERT S. CROWDER, SR., JULIA J. CROWDER,

H. ALLAN MeCARTNEY and HENRY C. COOPER,

Petitioners.

Vs,

SOUTHERN BAPTIST CONVENTION and

EXECUTIVE COMMITTEE OF THE

SOUTHERN BAPTIST CONVENTION,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

nite

James P. Guenther Griffin B. Bell

GUENTHER & JORDAN Counsel of Record

Third Floor

Nashville Citybank Building Perry E. Pearce

315 Union Street Richard A. Schneider

Nashville, Tennessee 37201 J. Warren Ott

(615) 254-1207 KING & SPALDING

2500 Trust Company Tower

Atlanta, Georgia 30303

(404) 572-4600

Attorneys of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTION PRESENTED

Did the United States Court of Appeals for the Elev-

enth Circuit correctly decide that the first amendment bars

civil court resolution of a controversy involving a matter

of ecclesiastical government?

TABLE OF CONTENTS

Pace

QUESTION PRESENTS. 202 eee i

TABLE OF OCONTEROWSS «20 ii

TABLE OF AUTHORITIES ......... ROP Ne bee

STATEMENT OF THE CASE .......... Pin eee ues 1

The Nature of the Case... ; 1

The SBC and the 1985 Convention .................. ciablias 2

The Executive Committee’s Affirmance of the

\ Y.-S hoo pet

Disposition in the Distriet Court WW... . 4

The 1986 Convention .....:...2.3.5 a eee 5

The Eleventh Cireuit’s Opinion oo. = 6

REASONS FOR DENYING THE WRIT |.) 8

I. THE ELEVENTH CIRCUIT’S DECISION IS

CORRECT BECAUSE THE FIRST AMEND-

MENT BARS CIVIL COURT RESOLUTION

OF A CONTROVERSY INVOLVING A MAT-

TER OF ECCLESIASTICAL GOVERNANCE. 8

WW. THE ELEVENTH CIRCUIT’S DECISION

DOES NOT CONFLICT WITH PRIOR DECI-

SIONS OF THIS COUR? 22 . 12

A. No Conflict with Jones v. Wolf ........... ns

B. No Conflict with Bouldin v. Alexander 14

C. No Misinterpretation of Serbian .. 15

Til. THE ELEVENTH CIRCUIT’S DECISION

DOES NOT CONFLICT WITH DECISIONS

OF OTHER CIRCUITS OR STATE COURTS. 17

A. Goorgge Ueate 2 | 17

B. Other Non-Georgia Decisions Ans 18

ili

TABLE OF CONTENTS—Continued

Page

IV. THIS CASE DOES NOT PRESENT AN IM-

PORTANT FIRST AMENDMENT QUES-

TION THAT SHOULD BE ADDRESSED BY

panne COURT. . EE. 22

TABLE OF AUTHORITIES

Page

Cases

Bouldin v. Alexander, 82 U.S. (15 Wall.) 131

6 ERE eR ee ert cole eee Tm 10, 14, 15

Carnes v. Smith, 236 Ga. 30, 222 S.E.2d 322, cert.

Gonied, 400 3h. Ge CIOs) se. 13

Gervin v. Reddick, 246 Ga. 56, 268 S.E.2d 657 (1980) 17, 18

Gonzalez v. Roman Catholic Archbishop, 280 US.

ee RR ie aR 9) drew eat ol oe eee meee

Hafner v. Lutheran Church-Missouri Synod, 616

ee Me ean 20

Hill v. Sargent, 615 S.W.2d 300 (Tex. Civ. App.

PN neler te taalh i eccetset ie annua olsabaaseniclsacoabdapacndenaietaulia 20

Hutchison v. Thomas, 789 F.2d 392 (6th Cir.),

cert. dented, 107 &. Ct. 377 (1966) 18

Jones v. Wolf, 443 U.S. 595 (1979) passim

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94

EEE actuciee ae ot Core B ER roc BE ra 7, 10, 15, 23

Kreshik v. St. Nicholas Cathedral, 363 U.S. 190

en he er a git ta tes ae . 10

Martin v. Lewis, 688 S.W.2d 72 (Tenn. Ct. App. 1984) 20

Nunn v. Black, 506 F. Supp. 444 (W.D. Va. 1981),

aff'd, 661 F.2d 925 (4th Cir. 1981), cert. denied,

ee eC oh ee. 19

Presbyterian Church v. Mary Elizabeth Blue Hull

Memorial Presbyterian Church, 393 U.S. 440

RO een ee ee ee ee ae

Presbyterian Church in the United States v. Eas-

tern Ieiahts Preshyterian Church, 225 Ga. 129,

167 S.F.2d 658 (1969), cert. denied, 396 U.S.

1041 (1970) . =e

——

TABLE OF AUTHORITIES—Continued

Pages

Reardon v. Lemoyne, 122 N.H. 1042, 454 A.2d 428

(1982) 21

Reddick v. Jones, 251 Ga. 195, 304 S.H.2d 389 (1983) 17, 18

Reid v. Gholson, 229 Va. 179, 327 S.H.2d 107,

cert. denied, 474 U.S. 824 (1985) . 21

Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) passim

United Pentecostal Church Ini’l, Inc. v. Sander-

son, 391 So. 2d 1293 (La. Ct. App. 1980) ... 20

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871) ........ passim

CONSTITUTION

U.S. Const., amend. I - passim

U.S. Const., amend. XIV 11

STATEMENT OF THE CASE

The Nature of the Case .

This dispute concerns the internal affairs of a re-

ligious entity known as the Southern Baptist Convention.

The petitioners are four Southern Baptists, who, along

with 45,000 other persons, served as messengers at the

Convention's annual meeting in 1985. At that 1985 meet-

ing, a majority of the 45,000 messengers present and

voting elected certain persons to serve on the Committee

on Boards, Commissions and Standing Committees

(**Committee on Boards’’), which was the committee re-

sponsible for nominating persons at the 1986 Southern

Baptist Convention to trusteeships of the various theo-

logical seminaries, missionary agencies and other agencies

associated with the Convention.

The petitioners opposed the election of those persons

and claimed that their election did not*ecomply with the

Convention’s procedural rules. After the 1985 Conven-

tion, the petitioners asked the Convention’s Executive

Committee to overturn the election but the election was af-

firmed. Dissatisfied, petitioners filed suit in the district

court below as a diversity action. On the respondents’

motion, the district court dismissed this action as being

beyond its jurisdiction under the First Amendment. On

appeal, the Eleventh Circuit affirmed.

The opinion of the United States Court of Appeals

for the Eleventh Circuit in this case is reported at 828

F.2d 718 (11th Cir. 1987) and is reprinted in the Appen-

dix to the Petition. The opinion of the United States

District Court is found at 637 F. Supp. 478 (N.D. Ga.

1986) and is included in the Appendix to the Petition. The

respondents respectfully submit that the statements of

facts contained in these decisions are more accurate than

the account set forth in the Petition.

The SBC and the 1985 Convention

The Southern Baptist Convention (‘‘SBC’’) was in-

corporated by the Georgia Legislature in 1845 ‘‘for the

purpose of eliciting, combining and directing the ener-

gies of the Baptist denomination of Christians [and] for

the propagation of the Gospepl. .. .’’ 828 F.2d at 719, n.1.

The petitioners were four of some 45,000 Baptist mes-

sengers who convened in Dallas, Texas for the 1985 South-

ern Baptist Convention. At that meeting, as with each

of the annual meetings in previous years, the Committee

on Boards was elected by a substantial majority of the

registered messengers present and voting. The Commit-

tee on Boards that was elected at the 1985 Convention

was responsible for nominating individuals at the 1986

Convention to be held in Atlanta, Georgia.

At the 1985 Convention, pursuant to Bylaw 16, the

Committee on Committees submitted a slate of nomina-

tions to the Committee on Boards. Before the slate was

voted on by the messengers, a motion was made by one of

the Convention messengers, Messenger Slatton, to sub-

stitute a new and different slate of candidates. The Con-

vention chair, Reverend Dr. Charles F. Stanley, ruled

Messenger Slatton’s motion out of order on the ground

that substitute nominations could be proposed only on an

individual by individual basis rather than by slate. Mes-

senger Slatton appealed the chair’s ruling to the floor of

the Convention. A majority of the registered messengers

that were present voted to overrule the chair’s ruling and

to allow the substitute slate of nominees. The 1985 Con-

— fe

vention then adjourned until the evening session. Id.

at 719.

When the evening session convened, Reverend Dr.

Stanley ruled Messenger Slatton’s motion out of order

again, but this time on the ground that nominations from

the floor of the Convention were prohibited by Bylaw 16

because it stated that members nominated to the Com-

mittee on Boards ‘‘shall be nominated to the Convention

by the Committee on Committees.’ Id. (emphasis added)

The parliamentarian at the 1985 Convention explained

that Bylaw 16 did not permit any motions from the floor

of the convention to amend the list of nominations be-

cause the word ‘‘shall’’ indicated that the Committee on

Committees was ‘‘exeusively responsible’ for providing

the nominations. /d. Chairman Stanley then called for

a vote on the nominations to the Committee on Boards

and the nominations were approved by a majority of mes-

sengers. Id.

The Executive Committee’s Affirmance of the Election

Several months after the 1985 Convention, the peti-

tioners asked the Executive Committee of the SBC to

use its ‘‘ad interim authority”’ to correct the alleged er-

roneous rulings made by Chairman Stanley regarding

the election of the Committee on Boards. The Executive

Committee affirmed the election of the Committee on

Boards after finding that the Committee on Committees’

nominees to the Committee on Boards would in the opin-

ion of the Executive Committee have been elected even

if the nominees offered from the floor had been voted

upon and that messengers to the 1986 Convention could

reject the Committee’s nominations from the floor. Jd.

at 720.

. Disposition in the District Court

After the Executive Committtee ruled against them,

the petitioners filed suit in the United States District

Court for the Northern District of Georgia seeking a

declaratory judgment interpreting certain bylaws of the

SBC and declaring the 1985 election of the Committee on

Boards to be invalid. A permanent injunction was also

sought to forbid the elected committee members from serv-

ing. The respondents moved to dismiss on the ground

that the first amendment bars civil court resolution of

the intrachurch controversy.

The district court dismissed the suit and explained

that ‘*{ijt has long been a fundamental proposition that

civil tribunals have no power to resolve disputes which

are ecclesiastical in nature.’’ 637 F. Supp. at 480. The dis-

trict court rejected the petitioners’ attempt to come with.

in (he narrow exception to the general rule that civil courts

lack jurisdiction of church disputes but may resolve dis-

yutes regarding the ownership of church property. The

petitioners had alleged that they had ‘‘a_ protectable

property interest in insuring that officials within the or-

ganization are properly elected under the bylaws.’ Id.

The district court found, however, that this was not the

tvpe of property dispute ‘‘contemplated by Jones.’’ Id.

The district court also rejected the petitioners’ argu-

ment that all church-related disputes could be decided by

civil courts if ‘‘neutral principles of law’? are applied.

The court found that ‘‘the doctrine of neutral principles

of law is not relevant in deciding whether a court can

bs Deo

resolve a dispute, but is only applicable as a method of

resolving a dispute over which a court has already deter-

mined it has jurisdiction.’’ Jd. In rejecting the peti-

tioners’ neutral principles argument, the district court

stated that the petitioners had mischaracterized the dis-

pute and that ‘‘[wJhat is actually at issue in this case is

a question of church governance.’’ Jd. at 481. The dis-

trict court then explained that the Supreme Court had

made it ‘‘abundantly clear’’ that civil courts should not

become ‘‘involved in disputes of this type.’’ Jd. (citing

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871); Serbian

Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696

(1976)). Having stated its reasons for dismissing the

ease, the district court concluded by holding that ‘‘this

dispute is one involving questions of internal church af-

fairs and governance ever which this court has no juris-

diction.’’ 637 F. Supp. at 482.

The 1986 Convention

At the 1986 Southern Baptist Convention which was

convened in Atlanta, Georgia in June 1986, the messen-

gers voted to amend Bylaw 16 to permit nominations for

the Committee on Boards to be taken from the floor of the

Convention on an individual by individual basis and not

by slate. Additionally, the 1986 messengers elected the

nominees proposed by the 1985 Committee on Boards for

positions with various theological seminaries, missionary

agencies and other agencies associated with the Southern

Baptist Convention.

The Eleventh Circuit’s Opinion

In affirming the judgment of the district court, the

Eleventh Circuit held that ‘‘the first amendment bars civil

court resolution of this controversy concerning a matter

of ecclesiastical government.’’ 828 F.2d at 727. The Ele-

venth Circuit found that the dispute was ‘‘one step re-

moved from a major doctrinal conflict between two fac-

tions within the Southern Baptist Convention’’ and that

the dispute regarding the election of the Committee on

Boards involved ‘‘ ‘questions of church discipline and the

composition of the church hierarchy’ ’’ which ‘‘ ‘are at the

core of ecclesiastical concern.’’’ Jd. at 726 (quoting

Serbian, 426 U.S. at 716).

The Eleventh Circuit reviewed the Supreme Court

cases that have addressed ecclesiastical disputes and ex-

plained that the Court has ‘‘attempted to strike an appro-

priate balance between the establishment and free exer-

cise concerns’’ and ‘‘the interests of the state and the

aggrieved party in resolution of the controversy by a

court of law.’’? 828 F.2d at 721. In reviewing this Court’s

decisions, the Eleventh Cireuit opined that prior decisions

had ‘‘recognized two primary first amendment issues that

favor judicial noninvolvement in an ecclesiastical dis-

pute.’’ Td. at 722.

The first concern, the limit to be placed on civil courts

deciding questions of religious doctrine or beliefs when

resolving church property disputes, was recognized by this

Court in Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872).

The second concern, favoring judicial noninvolvement in re-

ligious disputes, requires civil courts to defer to decisions

of religious tribunals that are established by religious or-

ganizations for resolving questions of internal discipline

and governance. The Eleventh Cireuit explained that

‘‘{t]he rule of deference to decisions of ecclesiastical

bodies on matters of internal church governance was ar-

ticulated in Gonzalez v. Roman Catholic Archbishop, 280

U.S. 1 (1929)’’ and that the Court’s subsequent decisions

in Kedroff v. St. Nicholas Cathedral of Russian Orthodox

Church, 344 U.S. 94 (1952) and Serbian, ‘‘made it clear

that the principle of deference to decisions of church an-

thorities applies to disputes concerning matters of in-

ternal church governance.’ 828 F.2d at 724.

After reviewing this Court’s decisions, the Eleventh

Cireuit found that a majority of the messengers at the

1985 Convention had elected the nominees to the Commit-

tee on Boards and the Executive Committee of the SBC had

affirmed the election. The Eleventh Cireuit held that

‘(t]he first amendment strongly favors deference to such

a decision by the highest church judicatory concerning a

matter of church governance.”’’ 7d. at 726. Additionally,

the Eleventh Circuit found that the dispute bore only ‘‘a

tangential relationship to property rights’? and that the

petitioners’ interest in obtaining a civil court forum was

‘‘insubstantial’’ because they had already received a hear-

ing before the highest SBC tribunal. /d. at 727.

REASONS FOR DENYING THE WRIT

I. THE ELEVENTH CIRCUIT’S DECISION IS COR-

RECT BECAUSE THE FIRST AMENDMENT BARS

CIVIL COURT RESOLUTION OF A CONTRO-

VERSY INVOLVING A MATTER OF ECCLESI-

ASTICAL GOVERNANCE.

The Eleventh Cireuit correctly found that the first

amendment bars judicial resolution of a dispute involving

a matter of ecclesiastical government. The court rejected

the petitioners’ claim that they had an enforceable con-

tract right under the SBC Bylaws and explained that civil

courts would not have jurisdiction over the denial of these

rights that were unrelated to any question of ownership of

property.

Decisions of the Supreme Court from Watson v. Jones,

80 U.S. (13 Wall.) 679 (1871) to Jones v. Wolf, 443 U.S.

595 (1979) have recognized the concern for abiding by the

first amendment principle of separation between church

and state that precludes civil court resolution of ecclesi-

astical controversies. <A brief review of this Court’s de-

cisions confirms that the Eleventh Cireuit’s holding is con-

sistent with the body of law established by this Court.

In Watson v. Jones the Court considered a contro-

versy in which the civil court was asked to decide which

of two groups of persons were the ruling elders of a hier-

arehical church. The Court deferred to the authoritative

decision of the church on who its proper officers were, and

in doing so held that ecclesiastical disputes are beyond the

jurisdiction of civil courts. Included in the Court’s list of

ecclesiastical disputes were matters which concerned

‘*theological controversy, church discipline, ecclesiastical

government, or the conformity of the members of the

church to the standard of morals required of them.’’ 80

U.S. (13 Wall.) at 733 (emphasis added). The Court ex-

plained its rationale for limiting civil resolution of these

disputes as follows:

The right to organize voluntary religious associations

to assist in the expression and dissemination of any

religious doctrine, and to create tribunals for the de-

cision of controverted questions of faith within the

association, and for the ecclesiastical government of

all the individual members, congregations, and offi-

cers 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. But it would be a vain consent and

would lead to the total subversion of such religious

bodies, if any one aggrieved by one of their decisions

could appeal to the secular courts and have them re-

versed. It is of the essence of these religious unions,

and of their right to establish tribunals for the de-

cision of questions arising among themselves, that

those decisions should be binding in all eases of ee-

clesiastical cognizance, subject only to such appeals as

the organism itself provides for.

Id. at 728-29.

Additionally, the Court opined:

‘‘(T lhe judicial eye cannot penetrate the veil of the

church for the forbidden purpose of vindicating the

alleged wrongs of excised members; when they became

members they did so upon the condition of continuing

or not as they and their churches might determine, and

they thereby submit to the ecclesiastical power and

cannot now invoke the supervisory power of the civil

tribunals.”’

Id. at 31 (quoting from Ferraria v. Vasconcelles, 23 Tl.

456 (1860)). The Court also stated that civil courts ean-

not exercise jurisdiction over ‘‘a matter which concerns

theological cortroversy, church discipline, ecclesiastical

government, or the conformity of the members of the

church to the standards of morals required of them.’’ Id.

at 733.

A year later in Bouldin v. Alexander, 82 U.S. (15

Wall.) 131 (1872) the Court stated that questions of mem-

bership in a church, and questions as to the ‘‘rights of

members as such’’ were beyond the power of civil tri-

bunals. Jd. at 139.

The Court in Kedroff v. St. Nicholas Cathedral, 344

U.S. 94 (1952) found that religious organizations have a

right to be ‘‘free from state interference, [in] matters of

church government as well as those of faith and doctrine.’’

In Kedroff the Court had to decide whether a piece of

state legislation favoring one administrative body within

a church over another administrative body within a church

was consistent with the first amendment. The Court de-

termined that a governmental effort to regulate the inter-

nal affairs of a church ‘‘violates our rule of separation

between church and state.’’? Id. at 110. Kight years later

in Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960)

the Court considered the Kedroff facts again, after the

state courts had applied the common law, and ruled that

the prohibitions of the first amendment applied to legisla-

tive and judicial action to interfere with church govern-

ance. Id. at 191.

In Serbian, supra, the Supreme Court listed ‘‘matters

of discipline, faith, internal organization, or ecclesiastical

rule, custom or law’’ as being beyond the power of the

civil courts to decide. 426 U.S. at 713. The Court also

held that the first and fourteenth amendments allow re-

ligious organizations ‘‘to establish their own rules and

regulations for internal discipline and government, and to

create tribunals for adjudicating disputes over these mat-

ters’’ and that when ‘‘ecclesiastical tribunals are created

‘» decide disputes’? the ‘‘Constitution requires that civil

courts accept their decisions as binding upon them.’’ 426

U.S. at 724-25.

Finally, the Court in Jones v. Wolf confirmed through-

out its opinion that matters of church government and

polity' are immune from civil adjudication. 443 U.S. at

602-03, 605, 607-08. First, the Court in Jones v. Wolf

recognized that ‘‘the First Amendment prohibits civil

courts from resolving . . . disputes on the basis of religious

doctrine and p-actice,’’ and the Court supported that

statement by citing to page 710 of the Serbian decision.

443 U.S. at 602 (emphasis added). The page cited from

Serbian refers to the principle prohibiting resolution of

' doctrinal disputes and states that ‘‘[t]his principle applies

with equal force to church disputes over church polity

and church administration.’” Serbian, 426 U.S. at 710.

The Court confirmed this a second time in Jones v. Wolf

when it noted that civil courts must ‘‘defer to the resolu-

tion of issues of religious doctrine or polity. ...’’ Jones

v. Wolf, 443 U.S. at 602 (emphasis added). Ultimately,

the Court rejected any approach that would ‘‘require ‘a

searching and therefore impermissible inquiry into church

: The word “polity” is derived from the Latin word “‘po-

litia” meaning, inter alia, administration of government. “Polity”

is currently defined to mean many things, including the man-

agement of private affairs and the form of government of a

religious denomination. Id.

polity.’’’ Id. at 605, citing Serbian, 426 U.S. at 723 (em-

phasis added).

In sum, this Court has consistently held for over a

century that the first amendment will not permit civil

courts to become entangled in disputes concerning internal

church governance and administration. Thus, the Eleventh

Circuit, in affirming the dismissal by the district court,

followed repeated holdings of the Supreme Court recog-

nizing the right of religious organizations to be free from

state interference. The Court of Appeals, on the basis

of the clear and consistent precedent of this Court, cor-

rectly decided that the first amendment barred civil court

resolution of a dispute involving a matter of ecclesiastical

government.

II. THE ELEVENTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH PRIOR DECISIONS OF

THIS COURT.

A. There Is No Conflict With Jones v. Wolf.

Petitioners contend that the Eleventh Cireuit’s deci-

sion conflicts with Jones v. Wolf because ‘‘[p]Jervading

the Court of Appeals’ analysis of the first amendment is-

sue and motivating its deference to the Executive Com-

mittee’s action is the assumption that the first amendment

requires civil courts to accept as binding any decisions

made by church tribunals in a dispute over matters of

internal governance.’’ (Petition at 11,12.) The Eleventh

Circuit, however, did not explain that Jones v. Wolf re-

quires deference to decisions of a church tribunal but

stated as follows:

The Jones majority thus recognized and reaf-

firmed the importance of the secon major first

ee ee

amendment interest favoring judicial noninvolvement

in a religious dispute: that where religious organiza-

tions establish rules for their internal discipline and

governance, and tribunals for adjudicating disputes

over these matters, ‘‘the Constitution requires that

civil courts accept their decisions as binding upon

them.’’ Milivojevich, 426 U.S. at 725, 96 S. Ct. at

2387-88. The disagreement between the justices in

Jones reflects differing assessments of the extent to

which resolution of the property dispute at issie in

that case by adherence to this principle might involve

a greater intrusion into religious affairs than would

resolution by the ‘‘neutral principles of law’’ method.

828 F.2d at 724. Later in its opinion the Eleventh Cir-

cuit explained that one of the factors it considered was the

deference favored by the first amendment to decisions ‘‘ by

the highest church judicatory concerning a matter of

church governance.’’ Id. at 726. The Eleventh Circuit found

that the Executive Committee had affirmed the election of

the 1985 Committee on Boards at the 1985 Convention.

The petitioners also contend that the Eleventh Cir-

cuit’s opinion conflicts with Jones v. Wolf, because it does

not apply ‘‘Georgia’s neutral principles of law approach’’

which Jones held to be consistent with the first amend-

ment and which Georgia’ has chosen to apply to the pre-_

2 The petitioners cite two Georgia cases in support of their

argument that Georgia courts adopted the ‘neutral principles

of law” approach following the Court’s suggestion in Presby-

terian Church in the United States v. Mary Elizabeth Blue Hull

Memorial Presbyterian Church, 393 U.S. 440, 449 (1969). See

Presbyterian Church in the United States v. Eastern Heights

Presbyterian Church, 225 Ga. 259, 167 S.E.2d 658 (1969), cert.

denied, 396 U.S. 1041 (1970); Carnes v. Smith, 236 Ga. 30, 222

S.E.2d 322, cert. denied, 429 U.S. 868 (1976). Both of these

cases involved disputes over church property which occurred

after the local churches had withdrawn from the general church-

es, and thus have no bearing on the present case concerning

internal church goverance and administration.

cise type of intrachurch dispute presented in this case.’’

(Petition at 16). The petitioners, however, do not state

how their dispute with the SBC is the type of property dis-

pute that Jones v. Wolf held must be present before a

civil tribunal can decide whether it could adjudicate a

church-related dispute.

B. There Is No Conflict With Bouldin v. Alexander.

The petitioners claim that the Eleventh Cireuit’s de-

cision conflicts with Bouldin v. Alexander, 82 U.S. (15

Wall.) 131 (1872) because in Bouldin ‘‘this Court resolved

precisely the kind of dispute at issue in this case-——namely,

a dispute concerning the procedural regularity of an elec-

tion under a congregational church’s rule of government.”’

(Petition at 16).

This Court in Bouldin, however, specifically stated

that it was only deciding the rights of property. The

Court stated:

This is not a question of membership of the

church, nor of the rights of members as such. It may

be concluded that we have no power to revise or ques-

tion ordinary acts of church discipline, or of excision

from membership. We have only to do with rights of

property.

Id. at 139. In Bouldin, the Court was asked to decide

whether church property was held in trust by a group of

trustees who had not been elected by a majority of the

trust members. The Court found that in a congregational

church the majority would determine title to church prop-

erty. Moreover, the Court deferred to an election by a

congregational majority which is a result the petitioners

—— A eesti

a ee

are seeking to avoid. Bouldin furnishes no support for the

petitioners in their attempt to obtain certiorari because

the present dispute does not involve property rights. Jd.

at 140.

C. The Eleventh Circuit Did Not Misinterpret

Serbian.

The petitioners also contend that the Eleventh Circuit

gave Serbian ‘‘a far more expansive interpretation than

is warranted by this Court’s rationale’’ and incorrectly

‘established a blanket rule of compulsory deference to the

decisions of ecclesiastical bodies on matters of internal

church governance.’’ (Petition at 17). The Eleventh Cir-

cuit, however, only discussed the rule of deference to deci-

sions of ecclesiastical bodies on matters of internal church

governance as a ‘‘second majer first amendment interest

favoring judicial noninvolvement in a religious dispute.’’

828 F.2d at 726. In considering the rule of deference, the

Court of Appeals relied not only on Serbian, but also on

Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1929)

and Kedroff v. St. Nicholas Cathedral of Russian Ortho-

dox Church, 344 U.S. 94 (1952) as having articulated this

rule.

The petitioners also argue that the Court in Serbian

examined church documents, including the chureh con-

stitution, because the first amendment problem did not

involve a matter of internal churck governance, but only

eoncerned judicial resolution of doctrinal questions and

that the Eleventh Cirenit erred in applying Serbian to

matters of church governance. (Petition at 18). The

Court in Serbian. however, specifically stated that the

first amendment principle that precludes civil court reso-

iution of church property disputes involving underlying

controversies over religious doctrine applies ‘‘with equal

force to church disputes over church polity and church ad-

ministration.’’ 426 U.S. at 710.

Additionally, the petitioners contend that the

Eleventh Circuit erred in applying Serbian to a congrega-

tional dispute. The Eleventh Cireuit correctly explained

in its opinion:

Appellant’s argument that the SBC has a congre-

gational, rather than a hierarchical, form of church

governance does little to help their position. The dis-

tinction drawn in Watson v. Jones. 80 U.S. (13 Wall.)

679, 20 T..Fid. 666 (1872) hetween the types of congre-

gational and hierarchical echureh polities was relevant

onlv to determining the ecclesiastical body to which

the civi! court mnst defer in determining rights to use

of pronerty. If a congregational form of government

is involved and the will of a majoritv of church mem-

bers is to control then the court will enforce the right

of a majority of members to use the church property.

Tf the congregational church has officers ‘‘in whom

are vested the powers of such control, then those who

adhere to the acknowledged organism by which the

body is governed are entitled to the use of the proper-

ty.’’? Id. at 725, 20 L.Ed. 666. Under either form of

congregational polity, however, the election of the

Committee on Boards by the messengers at the 1985

Convention and the affirmance of that decision by the

Executive Committee are entitled to deference.

828 F.2d at 726-27, n.20. If the petitioners claim that a

majority of the messengers is the ‘‘ultimate decision-

making authority within the SBC,” it is difficult to un-

derstand how the petitioners can contend that the 1985

Committee on Boards was not validly elected by a ma-

jority vote at the 1985 Convention.

Ill. THE ELEVENTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH DECISIONS OF OTHER

CIRCUITS OR STATE COURTS.

In an attempt to support their position that the first

amendment does not bar resolution of intrachurch dis-

putes that can be decided by the application of neutral

principles of law, petitioners cite several state court cases

that deal primarily with church property disputes and do

not involve the controversy present in this case.

A. Georgia Cases.

The petitioners argue that the district court and the

Eleventh Circuit failed to follow decisions of the Georgia

courts, relying principally on only two cases: Reddick v.

~ Jones, 251 Ga. 195, 304 S.E.2d 389 (1983) and Gervin v.

Reddick, 246 Ga. 56, 268 S8.E.2d 657 (1980). In both cases,

however, the Supreme Court of Georgia viewed its deci-

sions as settling disputes over property rights, not dis-

putes over questions of internal church procedures. Ger-

vin, 246 Ga. at 57, 268 S.E.2d at 657; Reddick, 251 Ga. at

196, 304 S.E.2d at 390.

In Gervin, a group representing the majority of a

congregation sued to regain control of church assets. 246

Ga. at 58, 258 S.E.2d at 658. The Supreme Court found

that the lower court had jurisdiction to decide whether the

majority was entitled to control church property, but also

found that the lower court erred in attempting to regulate

the internal affairs and doctrine of the church by appoint-

ing a special master. 246 Ga. at 59, 268 S.E.2d at 659.

There was no discussion by the Supreme Court of the

application of the neutral principles of law. Gervin is not

analogous to this case because here only four dissident

messengers are challenging a decision by the majority

and they do not seek title to property.

The Supreme Court of Georgia in Reddick applied the

neutral principles of law to a church dispute only after

the court found that it had jurisdiction because a property

right was involved in the suit brought by a pastor chal-

lenging the termination of his rights to the benefits of his

office. In discussing an order of the lower court that had

attempted to regulate the internal affairs of a church, the

Supreme Court of Georgia opined that it appeared that

the lower court had erred because its order exceeded the

court’s jurisdiction over the property question. 251 Ga.

at 197, 304 S.E.2d at 391. Neither of these two cases held

that a court can apply neutral principles of law to an intra-

church dispute that does not involve property rights.

It is quite clear in any event, however, that petitioners

have aimed far wide of the mark in relying on state court

decisions to establish the boundaries of federal constitu-

tional law. The Court of Appeais rejected this approach

as inherently unsound: ‘‘Georgia courts are powerless

to adjudicate religious disputes where doing so violates

the United States Constitution.*’ 828 F.2d at 727, n.21.

B. Other Non-Georgia Decisions.

Another Cireuit Court of Appeals has held that the

neutral principles of law doctrine should not be applied to

religious controversies over church government. The

Sixth Cirenit in Hutchison v. Thomas, 789 F.2d 392 (6th

oO een

Cir.), cert. denied, 107 S. Ct. 277 (1986) declined to apply

the neutral principles of law dectrine when deciding a

suit brought by a Methodist minister challenging his en-

forced retirement:

The ‘‘neutral principles’? doctrine has never been

extended to religious controversies in the area of

church government, order and discipline, nor should

it be. The claim here relates to appellant’s status and

employment as a minister of the church. It therefore

concerns internal church discinline, faith, and organi-

zation, all of which are governed by ecclesiastical rule,

custom, and law. See Kaufmann v. Sheehan, 707 F.2d

355, 358 (8th Cir. 1983). The neutral principles doc-

trine relating to church property is simply not ap-

plicable in the instant case.

Id. at 396. The Court of Appeals specifically limited the

application of neutral principles of law to church property

disputes that do not involve internal church disputes over

‘*government, order and discipline.’’ Jd.

A federal district court in Nunn v. Black, 506 F. Supp.

444 (W.D. Va. 1981), aff’d, 661 F.2d 925 (4th Cir. 1981),

applied the principles of Serbian to reject jurisdiction over

claims by dissident church members concerning their ex-

pulsion, despite the fact that the church had ‘‘no strue-

tured decision-making process.’’ Jd. at 448.- The court

explained :

[I]t is clear that the fact that the local church may

have departed arbitrarily from its established expul-

sion procedures in removing the plaintiffs is of no

constitutional consequence .... Thus, the plaintiffs’

contentions that their due process rights were violated

in thai their eontributions to the church were expro-

priated by the expulsion is of no merit. Similarly,

the above conclusion is not varied by the fact that the

Church of God of Prophecy has no structured decision-

making process.

Id.

Another federal district court in Hafner v. Lutheran

Church-Missourt Synod, 616 F. Supp. 735 (N.D. Ind. 1985)

refused to interpret a church constitution in a case brought

by the plaintiff minister to recover the expenses of his

disability which he claimed he was entitled to under the

constitution of his church. The district court explained:

If the plaintiffs are correct it will become the

function of this court to interpret that provision of

that church constitution. Such an inquiry is the kind

of inquiry that was requested of and rejected by the

Supreme Court of the United Statesin-the Serbian

Eastern Orthodox Diocese case ....

Id. at 737.

Courts in other jurisdictions have relied on Serbian

rather than the neutral principles of law doctrine in de-

ciding whether to exercise jurisdiction over nonproperty

church disputes. See United Pentacostal Church Inter-

national, Inc. v. Sanderson, 391 So. 2d 1298, 1298 (la. Ct.

App. 1980) (court followed Serbian in refusing to exer-

cise jurisdiction in a case brought by former church mem-

bers challenging their termination on the church’s board

of directors in violation of the laws of the congregational

ehurch) ; Hill v. Sargent, 615 S.W.2d 300 (Tex. Civ. App.

1981) (court followed Serbian and refused to determine

the validity of a meeting electing certain church officers) ;

Martin v. Lewis, 688 S.W.2d 72 (Tenn. Ct. App. 1984)

(court followed Serbian and reversed a lower court de-

cision interpreting the bylaws of a nonprofit religious cor-

poration and invalidating an election).

These cases clearly support the application of Serbian

rather than the neutral principles of law to nonproperty

disputes over the internal affairs of a church. Serbian

prohibits courts from interpreting church rules or deciding

whether they have been properly interpreted, which is ex-

actly what the petitioners want this Court to do.

The petitioners rely principally on two cases in sup-

port of their position that numerous state courts of last

resort have interpreted Jones to allow civil court resolu-

tion of disputes ‘‘indistinguishable from the one involved

in the instant case.’’ (Petition at 25) (citing Reid v. Ghol-

son, 229 Va. 179, 327 S.K.2d 107, cert. denied, 474 U.S. 824

(1985), and Reardon v. Lemoyne, 122 N.H. 1042, 454 A.2d

428 (1982)). Reardon, however, did not involve an issue

regarding an internal dispute over an election of a com-

mittee; rather, the dispute involved a suit brought by four

nuns against the bishop, superintendent and school board

~ members to enforce employment contracts. The Court

found that:

Civil courts are permitted to consider the validity of

~ non-doctrinal contractual claims which are raised by

parties to contracts with religious entities. This re-

quires the courts to evaluate the pertinent contractual!

provisions and extrinsic evidence in case of ambi-

guity, to determine whether any violations of the con-

tract have occurred, and to order appropriate reme.

dies, if necessary.

454 A.2d at 432.

Reid v. Gholson, the other case cited by petitioners,

involved a dispute within a large, independent congrega-

tional church that had no written constitution or bylaws

and had traditionally been governed by a majority vote of

its members at annual congregational meetings. The facts

of this case are not even remotely similar to the dispute

between the petitioners and respondents in this case.

Whatever one may think about the wisdom or the con-

stitutionality of these state court decisions, they do not

supersede one-hundred years of precedent from this Court

forbidding civil courts from intruding into matters of in-

ternal church governance and administration. That pre-

cedent is clear and unambiguous, and it was correctly ap-

plied by the district court and the Court of Appeals in the

present case. Respondents submit that further review

under these circumstances is unnecessary and should not

be granted.

IV. THIS CASE DOES NOT PRESENT AN IMPOR-

TANT FIRST AMENDMENT QUESTION THAT

SHOULD BE ADDRESSED BY THIS COURT.

The Supreme Court has consistently held that prop-

erty rights must be involved before a court can exercise

jurisdiction in a chureh dispute. There is no ‘‘strong

state interest’’ in providing a judicial forum for the peace-

ful resolution of an intrachurch dispute that does not af-

fect title to property. The petitioners have not cited any

decision of this Court that supperts civil court resolution

of a church dispute like this one. Georgia and other states

have not opened their courts to nonproperty disputes and

have not found a strong state interest in resolving ‘‘intan-

gible personal rights as those reflected in a church’s cor-

porate bylaws.*’ (Petition at 28). -

Statements that this decision ‘‘removes a large cate-

gory of disputes from all courts and affects all religious

entities’? and a reference to the first amendment as a

‘“‘handmaiden of arbitrary lawlessness’? do not justify

granting a petition for a writ of certiorari. (Petition at

28, 29). This Court has consistently recognized the pro-

tection afforded by the first amendment to religious or-

ganizations to be ‘‘free from state interference, [in] mat-

ters of church government as well as those of faith and

doctrine.’’ Kedroff, 344 U.S. at 110. See discussion in

Section I. supra, at 8-12. A claim that the Eleventh Cir-

cuit’s opinion leaves the ‘‘members of. religious bodies

unable to peacefully resolve matters of governance that

do not require decisions about doctrine or belief’’ is

simply not true. (See Petition at 29). The petitioners

had several means within the SBC to resolve this dispute.

A majority of messengers to the 1985 Convention elected

the Committee on Boards; if the petitioners had been in

the majority they could have rejected the slate of nominees

to the Committee on Boards. The nominees of the Com-

mittee on Boards to SBC theological seminaries, mission-

ary agencies and boards were elected by a majority of mes-

sengers at the 1986 Convention. The majority of mes-

sengers at the 1986 Convention amended the SBC bylaws

to permit individual nominations from the floor to the

Committee on Boards. Certainly, this Court should not

overturn the majority vote of the Southern Baptist Con-

vention to afford the petitioners a civil court forum to

raise ‘‘intangible personal rights.’’

CONCLUSION

The Petition for a Writ of Cetriorari should be denied

because it does not meet any of the reasons stated by Rule

17 of the Supreme Court Rules in that the Eleventh Cir-

cuit Opinion (1) does net conflict with the decision of

another court of appeals; (2) does not conflict with a

state court of last resort; (3) does not conflict with prior

Supreme Court decisions; and (4) has not decided an im-

portant question of federal law that should be settled by

this Court.

Respectfully submitted,