Sorry to bore you folks with this again, but I’m floored by some of what I heard over the keitai.
[Episcopal Diocese of Pennsylvania Assistant Chancellor] Ms. [Mary] Kohart suggested that civil courts can’t hear disputes involving religious societies. But as I was saying yesterday, it’s well established as American constitutional law that the civil courts can hear such cases. They may not hear them often, but only because lawyers cost money and many people just conclude it’s not worth the money. [As evidence, check out this most recent one in the State of Virginia, June 10, 2010.
As I was saying yesterday, certain things about the primacy of civil law over the activities of a religious society are well-settled. One, is that the courts are open to arbitrating disputes arising within religious societies.]
Again, the key dicta in Watson v. Jones, 80 U.S. 679 (1871):
“Religious organizations come before us in the same attitude as other voluntary associations . . ” Attitude here is a 19th century use of the word meaning condition or state. What the U.S. Supreme Court was saying is that the court system is open to cases involving religious societies. They were expressly NOT saying that the civil court system is closed to these kinds of disputes. So Mary Kohart going around saying otherwise is just a big lie.
(More on the lying in a bit.)
The same case says, of plaintiffs: “Their right to have this question decided, if there is no other objection to the jurisdiction, cannot be doubted.” Just more dicta saying the same thing–the civil courts are open.
Mary’s got another little fiction out there. She claims that there are “ecclesiastical courts” within the Episcopal Church. There aren’t, and she knows it. That’s because everyone in the denomination is bound by canons. So it’s quite a deception to play a game by saying, in effect, let’s pretend that “there is a special ecclesiastical tribunal to resolve this question”.
Say there is a canon that says a new member must hop three times. So the new member does that. And later, someone decides that, no, it should be hop four times. And so denies the member his/her due. Mary Kohart is telling people that this means the hopper, in effect, must seek out some resolution within the Episcopal Church. But the matter has already been resolved by canons—it’s hop three times. Whoever said “hop four” has no justification, regardless of whatever their personal belief is.
So the idea that canons can be circumvented by pretending that the leadership of the religion foresaw some adjudicative system is another, well, lie. It is a way around honoring the canon.
In fairness to Mary Kohart, she isn’t the first legal shark to think this kind of thing up. The credit goes to Valerie Munson, of late a lecturer in “ethics” (no less, what a laugh!) at a Roman Catholic college in Minnesota.
In the 1990’s, Ms Munson offered this legal theory:
the civil court isn’t open to a party until you get an “adjudication” from some fictitious ecclesiastical tribunal, on the applicability of a canon that the denomination already plainly states that all are bound by.
Now if there just isn’t an ecclesiastical tribunal set up to resolve the matter, it’s supposed to mean that you get no relief. As I’ve been blogging, the Roman Catholic judges of Pennsylvania (what would have probably been called Poper Judges in the 19th century) see no problem with that logic. But to me, as a lawyer interested in civil rights, I see big problems with that. If there is no ecclesiastical tribunal, then asserting that there is one is a fraud.
There was another part of the phone call where Mary brought up New Title IV of the Episcopal Church canons. What happened last summer is that the Episcopal Church made some new rules involving the “ecclesiastical discipline” of clergy. One of them said that no one is permitted to bring civil court litigation on any matter involving the discipline of clergy. (I don’t know if that’s constitutional or not, but leave it aside for now.)
What the new canon didn’t say is that it’s against canons for lay people to use the court systems. Title IV does not apply to lay persons. And so, another lie.
Toward the end of my phone call with Mary Kohart, I got the strong sense that Ms. Kohart likes to perpetrate frauds. She likes to say things that aren’t exactly true, and see how many times she can get away with saying things that aren’t exactly true. It’s hard to dialogue with someone like that.
I got called a name maybe five times before I lost count, so I am sure that Ms. Kohart appreciates that when I call her a casual liar who makes things up for her own benefit in litigation(s), I’m doing it in the same spirit that she uses when discussing what are important issues on the phone.
I don’t think calling someone a “troublemaker” is necessarily the right response when someone is only seeking to nail down what the Real Rules are within a religious society, and what the actual role of a civil court is. Maybe that was supposed to be an ‘egg on’, but regardless, it wasn’t appreciated.