US Courts and Religious Law

(By Andrew MacKie-Mason)

Professor Howard Friedman (who runs the "Religion Clause" blog) recently posted news of a decision in a North Carolina court of appeals. The case involved a pastor who believed the church had promised him the right to a congregation. The local bishop refused to give him a congregation or a salary, even though he had been instructed to do so. The pastor sued the bishop under state civil law, alleging that he had been wrongfully deprived of wages (effectively a breach of contract claim.)

Both the trial court and the court of appeals dismissed the pastor's suit because they said they did not have jurisdiction to hear it. They said that since the case involved some interpretation of religious law, the courts could not hear it without violating the First Amendment. The appellate court opinion reads (in part):

The United States Supreme Court has interpreted this clause to mean that the civil courts cannot decide disputes involving religious organizations where the religious organizations would be deprived of interpreting and determining their own laws and
doctrine. Thus, the dispositive question is whether resolution of the legal claim brought against a religious organization requires the court to interpret or weigh church doctrine...

To determine his claim, the court would be required to determine, under ecclesiastical law, the compensation to which plaintiff is entitled as an adequate means of livelihood and the appropriate necessities as envisioned in canons 281 § 1 and 384 of the Code of Canon Law, and that which is established by Diocesan Particular law regarding the sustenance of clergy. (internal citations omitted.)

The theory seems to be that the courts cannot interpret religious law, so they cannot determine what the pastor is entitled to as a matter of religious wrong.

I'm not familiar with the precedents on this issue. As a matter of past law, the court of appeals may be correct. However, the result seems wrong to me. While civil courts should not be able to impose religious law upon the population at large (they cannot assign stoning as a punishment for disobeying your parents, though they can punish you for being a stoner while disobeying your parents), the courts should be able to interpret religious laws as a matter of contract law.

If it can be shown that the pastor and the bishop entered into an implicit contract with each other through their membership in the Catholic Church, and if the religious laws of the Church can help enunciate the terms of that implicit contract, then the courts should be as free to interpret the religious law as they are to interpret any other contract. This in no way interferes with the right to free exercise of one's religion.

This brings me to some disappointing news out of Oklahoma. Eugene Volokh reports that the Oklahoma legislature is considering a state constitutional amendment which would ban state courts from considering laws from other nations or cultures, including (apparently) religious laws (the amendment specifically mentions Sharia law, which is the religious law of Islam.)

Professor Volokh lays out some of the potential effects of this amendment. (See his post for the complete list.)

• If a contract calls for the application of (say) Canadian or Mexican law, Oklahoma courts (like other courts) would generally follow the contract (with some exceptions that aren’t applicable to the great bulk of litigation). This is especially so when the contract was entered into in a foreign country, and the parties at the time wouldn’t have even anticipated that the contract would be interpreted some years later in Oklahoma courts. Not any more, if the proposed Oklahoma amendment were to pass.

• If a contract is silent on the choice of law, the sensible Oklahoma statute — in effect since before Oklahoma became a state — provides that, “A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” So a contract that is to be performed in Brazil would normally be interpreted under the laws of Brazil. Not any more.

• If Oklahoma courts are asked to enforce a foreign judgment — a crucial aspect of modern commercial life — they would normally look to the underlying foreign law to see whether the judgment is contrary to Oklahoma public policy, see, e.g., Panama Processes v. Cities Service Co., 796 P.2d 976 (Okla. 1990) (Brazilian judgment). They would likewise look to foreign law to resolve any ambiguous or unclear terms in the foreign judgment. Not any more.

Hopefully the Oklahoma Senate will realize what a bad idea this sweeping change is, and not pass the amendment. Religious and international law plays a legitimate part in our legal system, and we should not let irrational fears of it obscure that fact.