More “neutral principles” and “hierarchical polity”

This has been the theme of the month, due to the news I’m reading about the Good Shepherd Rosemont and Reverend Dr. David Moyer situations.

I want to talk a bit about one statute in Pennsylvania Nonprofit Corporation Law. It’s Section 5107 of the code, and it states:

§ 5107. Subordination of subpart to canon law.
If and to the extent canon law applicable to a corporation
incorporated for religious purposes shall set forth provisions
relating to the government and regulation of the affairs of the
corporation which are inconsistent with the provisions of this
subpart on the same subject, the provisions of canon law shall
control to the extent, and only to the extent, required by the
Constitution of the United States or the Constitution of
Pennsylvania, or both.
(Dec. 21, 1988, P.L.1444, No.177, eff. Oct. 1, 1989)

This is courtesy of: website

In Pennsylvania, there is no special “religious society” corporation law. This differs from states such as New York, which wrote special statutes to govern all of the major denominations. (I don’t know what happens there if you are some sort of new or unusual religious society and you want to incorporate. There must be a general category that all the small name ones fit into.)

You may have your own interpretations of it, but this is what I think has happened in Pennsylvania:

Because Pennsylvania requires ALL nonprofit corporations to incorporate under Title 15 (Corporations code), the only choice a religious society (parish, diocese, etc.) gets is to incorporate as a nonprofit.

But because one size does not fit all, a special section, Section 5107, was added to say that if your incorporated religious group has canons that it is governed by, then whatever those canons are are what the state (the “Commonwealth” as it goes in Pennsylvania) will recognize.

(As an aside, I could never figure out what these people have with not calling themselves a “state” like everybody else. It’s the State of New Jersey, State of New York, Maryland, etc. What’s the deal of saying you’re a “Commonwealth”? It sounds like a little bit of pretention there, in a state that lost its claim to being special or innovative about 200 years ago . . . )

I also happen to believe that any religious society that does not tender its corporate charter back to the, ehem, Commonwealth, or otherwise end its business as a nonprofit corporation per se, agrees with the Commonwealth and the rest of the citizenry to be bound by the decisions of Pennsylvania courts regarding canon law.

So here you have 15 Pa.C.S. 5107. But as statute law, it has sat there now for over twenty years, uninterpreted by any higher court in the Commonwealth.

It looks like there was an earlier enactment of this same statute, from about 1972, and it was then carried over into the Corporation Law when Pennsylvania adopted the model code in 1988.

Judges get paid tax money to decide disputes and clarify the law. But again, twenty years have passed (and really almost forty), and none of those judges—not even Pope O’Keefe in Philadelphia—has had the cajones to say exactly what Section 5107 is doing there or how the public should consider it.

And it isn’t so much “deference to religious authorities” as it is they are too coward to be wrong.

The California high court, in its recent Episcopal Church Cases
decision, makes it crystal clear that courts are permitted to interpret canons, provided that they do not decide matters that are purely religious. In which case, they may still decide the case, but should defer to the rule as decided within the denomination.

Pennsylvania judges, more than others, tend to act either like politicians or bureaucrats in robes. Rather than citizenry charged with a state office and sworn to do a duty.

A statute that sits there for 40 years waiting to be fleshed out, to me, is a dereliction of duty.

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