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An Overview

Madison's original proposal for a bill of rights provision concerning religion read: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed."¹ The language was altered in the House to read: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."² In the Senate, the section adopted read: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . ."³ It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some-
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what more indefinite "respecting" phraseology.⁴ Debate in Congress lends little assistance in interpreting the religion clauses; Madison's position, as well as that of Jefferson who influenced him, is fairly clear,⁵ but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

¹ 1 Annals of Congress 434 (June 8, 1789).

² The committee appointed to consider Madison's proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: "No religion shall be established by law, nor shall the equal rights of conscience be infringed." After some debate during which Madison suggested that the word "national" might be inserted before the word "religion" as "point[ing] the amendment directly to the object it was intended to prevent," the House adopted a substitute reading: "Congress shall make no laws touching religion, or infringing the rights of conscience." 1 Annals of Congress 729-31 (August 15, 1789). On August 20, on motion of Fisher Ames, the language of the clause as quoted in the text was adopted. Id. at 766. According to Madison's biographer, "[t]here can be little doubt that this was written by Madison." I. Brant, James Madison--Father of the Constitution 1787-1800 at 271 (1950).

³ This text, taken from the Senate Journal of September 9, 1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary History 1153 (1971). It was at this point that the religion clauses were joined with the freedom of expression clauses.

⁴ 1 Annals of Congress 913 (September 24, 1789). The Senate concurred the same day. See I. Brant, James Madison--Father of the Constitution 1787-1800, 271-72 (1950).

⁵ During House debate, Madison told his fellow Members that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience." 1 Annals of Congress 730 (August 15, 1789). That his conception of "establishment" was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, "comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment." 8 The Writings of James Madison (G. Hunt. ed.) 132-33 (1904). Madison's views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his "Memorial and Remonstrance against Religious Assessments" setting forth his thoughts. Id. at 183-91; I. Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948). Acting on the momentum of this effort, Madison secured passage of Jefferson's "Bill for Religious Liberty". Id. at 354; D. Malone, Jefferson the Virginian 274-280 (1948). The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.

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Scholarly Commentary

The explication of the religion clauses by the scholars has followed a restrained sense of their meaning. Story, who thought that "the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,"⁶looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. "The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, Episcopalians constituted the predominant sect; in others Presbyterians; in others, Congregationalists; in others, Quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration
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of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship."⁷

⁶ 3 J. Story, Commentaries on the Constitution of the United States 1865 (1833).

⁷ Id. at 1873.

"Probably," Story also wrote, "at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."⁸ The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment.⁹

⁸ Id. at 1868.

⁹ For a late expounding of this view, see T. Cooley, General Principles of Constitutional Law in the United States 224-25 (3d ed. 1898).

This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education,¹⁰ in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that "aid one religion" or "prefer one religion over another," but as well those that "aid all religions." Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is "preferential" governmental promotion of some religions, allowing general governmental promotion of all religion in general.¹¹ The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position.¹²

¹⁰ 330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view.

¹¹ Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice Rehnquist dissenting). More recently, dissenters, including now-Chief Justice Rehnquist, have appeared reconciled to a "constitutional tradition" in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).

¹² Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice Souter, joined by Justices Stevens and O'Connor, concurring).

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Court Tests Applied to Legislation Affecting Religion

Before considering the development of the two religion clauses by the Supreme Court, one should notice briefly the tests developed by which religion cases are adjudicated by the Court. While later cases rely on a series of rather well-defined, if difficult-to-apply, tests, the language of earlier cases "may have [contained] too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles."¹³ It is well to recall that "the purpose [of the religion clauses] was to state an objective, not to write a statute."¹⁴

¹³Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).

¹⁴Id.

In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut, in which he declared that it was the purpose of the First Amendment to build "a wall of separation between Church and State."¹⁵ In Reynolds v. United States,¹⁶ Chief Justice Waite for the Court characterized the phrase as "almost an authoritative declaration of the scope and effect of the amendment." In its first encounters with religion-based challenges to state programs, the Court looked to Jefferson's metaphor for substantial guidance.¹⁷. But a metaphor may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action.¹⁸ {Page 973} The concept of neutrality itself is "a coat of many colors,"¹⁹ and three standards that could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards were part of the same formulation. "The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."²⁰ The third test is whether the governmental program results in "an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement."²¹In 1971 these three tests were combined and restated in Chief Justice Burger's opinion for the Court in Lemon v. Kurtzman,²² and are frequently referred to by reference to that case name.

¹⁵16 The Writings of Thomas Jefferson 281 (A. Libscomb ed., 1904).

¹⁶ 98 U.S. 145, 164 (1879).

¹⁷Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 212 (1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief Justice Burger remarked that "the line of separation, far from being a ‘wall,' is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship." Similar observations were repeated by the Chief Justice in his opinion for the Court in Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not "wholly accurate"; the Constitution does not "require complete separation of church and state [but] affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any").

¹⁸Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694-97 (1970) (Justice Harlan concurring). In the opinion of the Court in the latter case, Chief Justice Burger wrote: "The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." Id. at 669.

¹⁹Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concurring).

²⁰Abington School District v. Schempp, 374 U.S. 203, 222 (1963).

²¹Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970).

²²403 U.S. 602, 612-13 (1971).

Although at one time accepted in principle by all of the Justices,²³ the tests have sometimes been difficult to apply,²⁴ have recently come under direct attack by some Justices,²⁵ and in several {Page 974} instances have not been applied at all by the Court.²⁶

From the 1998 Supplement:

Nonetheless, the Court did employ the Lemon tests in its most recent establishment clause decision, ¹ and it remains the case that those tests have served as the primary standard of establishment clause validity for the past three decades. Justice Kennedy has proffered "coercion" as an alternative test for violations of the establishment clause, ² but that test has been criticized on the grounds it would eliminate a principal distinction between the establishment clause and the free exercise clause and make the former a "virtual nullity." ³ Justice O'Connor has suggested "endorsement" as an alternative test, i.e., that the establishment clause is violated if the government intends its action to endorse or disapprove of religion or if a "reasonable observer" would perceive the government's action as such an endorsement or disapproval; ⁴ but others have criticized that test as too amorphous to provide certain guidance. ⁵ She has also suggested that it may be inappropriate to try to shoehorn all establishment clause cases into one test, and has called instead for recognition that different contexts may call for different approaches. ⁶

¹ Agostini v. Felton, 521 U.S. 203 (1997) (upholding under the Lemon tests the provision of remedial educational services by public school teachers to sectarian elementary and secondary schoolchildren on the premises of the sectarian schools).

² County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989) (Justice Kennedy concurring in part and dissenting in part); and Lee v. Weisman, 505 U.S. 577 (1992).

³Lee v. Weisman, 505 U.S. 577, 621 (Souter, J., concurring). See also County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (O'Connor, J., concurring in part and concurring in the judgment).

⁴ Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (concurring); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (concurring); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 712 (1994) (concurring).

⁵ County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989) (Justice Kennedy, concurring in the judgment in part and dissenting in part); and Capitol Square Review Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (Justice Scalia).

⁶ Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 718-723 (1994) (O'Connor, J., concurring in part and concurring in the judgment).

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While continued application is uncertain, the Lemon tests nonetheless have served for twenty years as the standard measure of Establishment Clause validity and explain most of the Court's decisions in the area.²⁷ As of the end of the Court's 1991-92 Term, there was not yet a consensus among Lemon critics as to what substitute test should be favored.²⁸ Reliance on "coercion" for that purpose would eliminate a principal distinction between establishment cases and free exercise cases and render the Establishment Clause largely duplicative of the Free Exercise Clause.²⁹

²³ E.g., Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion); Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting opinion).

²⁴The tests provide "helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973), and are at best "guidelines" rather than a "constitutional caliper;" they must be used to consider "the cumulative criteria developed over many years and applying to a wide range of governmental action." Inevitably, "no ‘bright line' guidance is afforded." Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice Blackmun dissenting).

²⁵See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987) (Justice Scalia, joined by Chief Justice Rehnquist, dissenting) (advocating abandonment of the "purpose" test); Wallace v. Jaffree, 472 U.S. 38, 108-12 (1985) (Justice Rehnquist dissenting); Aguilar v. Felton, 473 U.S. 402, 426-30 (1985) (Justice O'Connor, dissenting) (addressing difficulties in applying the entanglement prong); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768-69 (Justice White concurring in judgment) (objecting to entanglement test). Justice Kennedy has also acknowledged criticisms of the Lemon tests, while at the same time finding no need to reexamine them. See, e.g., Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655-56 (1989). At least with respect to public aid to religious schools, Justice Stevens would abandon the tests and simply adopt a "no-aid" position. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).

²⁶See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers on the basis of historical practice); Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) (upholding provision of sign-language interpreter to deaf student attending parochial school); Board of Education of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994) (invalidating law creating special school district for village composed exclusively of members of one religious sect); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (upholding the extension of a university subsidy of student publications to a student religious publication). (rejecting a request to reconsider Lemon because the practice of invocations at public high school graduations was invalid under established school prayer precedents). The Court has also held that the tripartite test is not applicable when law grants a denominational preference, distinguishing between religions; rather, the distinction is to be subjected to the strict scrutiny of a suspect classification. Larson v. Valente, 456 U.S. 228, 244-46 (1982).

²⁷Justice Blackmun, concurring in Lee, contended that Marsh was the only one of 31 Establishment cases between 1971 and 1992 not to be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.

²⁸In 1990 Justice Kennedy, joined by Justice Scalia, proposed that "neutral" accommodations of religion should be permissible so long as they do not establish a state religion, and so long as there is no "coercion" to participate in religious exercises. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260-61. The two Justices parted company, however, over the permissibility of invocations at public high school graduation ceremonies, Justice Scalia in dissent strongly criticizing Justice Kennedy's approach in the opinion of the Court for its reliance on psychological coercion. Justice Scalia would not "expand[ ] the concept of coercion beyond acts backed by threat of penalty." Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice Rehnquist has advocated limiting application to a prohibition on establishing a national (or state) church or favoring one religious group over another. Wallace v. Jaffree, 472 U.S. 38, 98, 106 (1985) (dissenting).

²⁹Abington School District v. Schempp, 374 U.S. 203, 222-23 (1963). See also Board of Education v. Allen, 392 U.S. 236, 248-49 (1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v. Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) ("a literal application of the coercion test would render the Establishment Clause a virtual nullity").

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Government Neutrality in Religious Disputes.

One value that both clauses of the religion section serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schism sometimes develops within churches or between a local church and the general church, resulting in secession or expulsion of one faction or of the local church. A dispute over which body is to have control of the property of the church will then often be taken into the courts. It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to look to the decision-making body or process in the church and to give effect to whatever decision is officially and properly made.
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The first such case was Watson v. Jones,³⁰ which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral,³¹ in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church which had declared their independence from the general church. Recognizing that Watson v. Jones had been decided on nonconstitutional grounds, the Court thought nonetheless that the opinion "radiates . . . a spirit of freedom for religious organizations, and 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."³² The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it was held, is to look at the church rules: If the church is a hierarchical one which reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, while if the church is a congregational one prescribing action by a majority vote, that determination will prevail.³³ On the other hand, a court confronted with a church property dispute could apply "neutral principles of law, developed for use in all property disputes," when to do so would not require resolution of doctrinal issues.³⁴ In a later case the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government, the power to reorganize the dioceses of a hierarchical church in this country, was "at the core of ecclesiastical affairs" and a court could not interpret the church constitution to make an independent
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determination of the power but must defer to the interpretation of the body authorized to decide.³⁵

³⁰80 U.S. (13 Wall.) 679 (1872).

³¹344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at 116. But the subsequent cases used a collective "First Amendment" designation.

³²Id. at 116. On remand, the state court adopted the same ruling on the merits but relied on a common-law rule rather than the statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).

³³Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 447, 450-51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in another context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud through dissemination of purported religious literature the right to present to the jury evidence of the truthfulness of the religious views he urged).

³⁴Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368-70 (Justice Brennan concurring).

³⁵The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697, 720-25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permitted limited inquiry into the legality of the actions taken under church rules. The Serbian Eastern Court disapproved of this inquiry with respect to concepts of "arbitrariness," although it reserved decision on the "fraud" and "collusion" exceptions. 426 U.S. at 708-20.

In Jones v. Wolf,³⁶ however, a divided Court, while formally adhering to these principles, appeared to depart in substance from their application. A schism had developed in a local church which was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the "true congregation" of the local church and awarded them authority over it. The Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church's constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregation.³⁷ Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter.³⁸ The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted the ignoring of the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church.³⁹.

³⁶443 U.S. 595 (1979). In the majority were Justices Blackmun, Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices Powell, Stewart, White, and Chief Justice Burger.

³⁷ Id. at 602-06.

³⁸ Id. at 606-10. Because it was unclear whether the state court had applied such a rule and applied it properly, the Court remanded.

³⁹Id. at 610.

Thus, it is unclear where the Court is on this issue. Jones v. Wolf restated the rule that it is improper to review an ecclesiastical dispute and that deference is required in those cases, but by approving a neutral principles inquiry which in effect can filter out the doctrinal issues underlying a church dispute, the Court seems
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to have approved at least an indirect limitation of the authority of hierarchical churches.⁴⁰

⁴⁰The Court indicated that the general church could always expressly provide in its charter or in deeds to property the proper disposition of disputed property. But here the general church had decided which faction was the "true congregation," and this would appear to constitute as definitive a ruling as the Court's suggested alternatives. Id. at 606.

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