Sethbag wrote:Yeah, I'm actually going to bed right now, so I'll read up what you have to say about it later when I wake up again. It would probably help to at least go back and read the first post in that thread, so you know what we're talking about with this Harry Tick fellow. I thought the post I linked to was pretty well argued, and I don't believe Smac ever really convincingly refuted my arguments. I still dispute that informing someone of an impending church court counts as a previously determined church sanction, for which the actual holding of a church court, the taking of witness statements about Harry's personal life, etc. constitute valid "implementation" as envisioned by Hadnot.
Sort of by definition, the sanction is not the church court itself, but rather the potential punishment inflicted upon a person once the court has been held and a decision has been reached. The allowable implementation, as per the Hadnot case, IMHO, should be limited to things like informing the former parishioner of this decision, as in fact happened in the Hadnot case. If the person resigns before the church court is held, however, there exists no previously adjudicated sanction to implement, so that's it, lights out on the church court.
Sanction in this context = "punishment that has been decided upon after consideration of the evidence", and not "holding a tribunal where 15 men, from whom you have withdrawn your consent, delve into your personal life and discuss it with each other". If no punishment has been decided upon before the resignation has taken place, there's no more jurisdiction for the church to consider it further and come up with any.
Hi.
You may be right.
Here below are the significant portions of the
Hadnot case:
26 In Guinn this court recognized a jurisdictional boundary limiting the powers of the ecclesiastical judicature. The church's jurisdiction exists as a result of the mutual agreement between that body and its member.
"All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it."
That relationship may be severed freely by a member's positive act at any time. Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state. The First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline. Within the context of ecclesiastical discipline, churches enjoy an absolute privilege from scrutiny by the secular authority.
27 The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation of previously pronounced ecclesiastical sanction which was valid when exercised - i.e., that it was declared when Church jurisdiction subsisted. Within the concept of protected implementation are not only the religious disciplinary proceeding's merits and procedure but also its end product - the expulsion sanction. While excommunication would put an end to jurisdiction over any further offense, it does not abrogate the consequences flowing from the previously announced Church judicature…
30 While the Constitution protects the jurisdiction of an ecclesiastical tribunal by its Free Exercise Clause's shield, it also serves to protect the rights of an individual to worship or not to worship according to one's conscience. Sovereign only within her own domain, the church has no power over those who live outside of the spiritual community. The church may not be forced to tolerate as a member one whom it feels obliged to expel from its flock. On the other hand, no citizen of the state may be compelled to remain in a church which his conscience impels him to leave.
31 The Free Exercise Clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking - its merits as well as procedure. Internal ecclesiastical procedure need not meet any "constitutional concept of due process." This is so because the church's judicature rests solely on consent which in turn is anchored on the ecclesiastical respondent's church affiliation. Because religious judicature is immune from any civil court inquest, it is also protected from intrusion by discovery. The church's immunity from disclosure rests neither on a statute nor a code of evidence. Rather its shield is of a constitutional dimension. It is founded on the Free Exercise Clause's prohibition against secular re-examination of merits and procedure in ecclesiastical judicature. In sum, if a matter lies within ecclesiastical cognizance, the church stands protected from any interference by the Free Exercise Clause. If it oversteps proper bounds, it will run afoul of the Establishment Clause insofar as its use of the state power may be in furtherance of a religious cause. As stated in Prince v. Commonwealth, ". . . religious activities which concern only members of the faith are and ought to be free - as nearly absolutely free as anything can be."
32 At the point when the church-member relationship is severed through an affirmative act either of a parishioner's withdrawal or of excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal or of post-excommunication activity unrelated to the church's efforts at effectuation of valid judicature, the absolute privilege from tort liability no longer attaches. Any action at this point, if it is to be protected, must be justified by others means. Under these circumstances conditional privileges may be applicable. The church may take such steps as are reasonable to protect itself and to complete the process occasioned by the withdrawal or other termination of the consensual relationship with a member. Until an affirmative notification of membership withdrawal is received the church need not reassess the course of its legitimate ecclesiastical interest.
[Bold added]
Here are the portions of the dissenting opinion from
Guinn which appears to have been adopted in the
Hadnot case:
21 Whether the Church of Christ's doctrine of withdrawal of fellowship may be viewed as unwise or improvident from an individual preference, is no concern of the courts. Our personal beliefs are not the constitutional standard; but rather, separation of church and state. Furthermore, the courts may not delve into whether the discipline imposed by the Elders was arbitrary or contrary to the Church's own doctrine, laws and procedures. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Presbyterian Church v. Mary Elizabeth Blue [775 P.2d 796] Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Oklahoma Dist. Court v. New Hope Assembly of God Ch., 548 P.2d 1029 (Okla. 1976).
22 The First Amendment guarantees the freedom to worship as one chooses. The State may not thrust any sect on any person or coerce anyone to attend church. Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). A person may change his/her religious beliefs; and a person may join and leave a church for any reason. Order of St. Benedict of New Jersey v. Steinhauser, 234 U.S. 640, 34 S.Ct. 932, 58 L.Ed. 1512 (1914). Parishioner may disassociate herself from the Church whenever she chooses as she has in fact done. Likewise, the Elders of the Church may after her withdrawal continue to believe that she is a member for life and invoke their disciplinary actions against her in conformity with their tenets and doctrines. The State cannot meddle in religious beliefs for religious convictions and questions of faith and discipline are fully protected under the First Amendment, except where they involve a substantial threat to public safety, peace or order. In my opinion there is, in this case, no substantial threat to public safety, peace or order. Consequently, both Parishioner and the Elders are free to believe as they so desire, as the State shall not prefer one belief over another.
23 Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1872), is the first case which addressed the principles limiting the role of civil courts in the resolution of religious controversies that incidentally affect civil rights. The Court in Watson cogently observed that it is inconsistent with the American concept of the relationship between church and state to permit civil courts to determine ecclesiastical questions. The United States Supreme Court has quoted extensively from this opinion in cases decided since Watson. E.g., Serbian Orthodox Diocese v. Milivojevich, supra; Presbyterian Church v. Hull Church, supra. In language which has recently been described as having "a clear constitutional ring," Presbyterian Church v. Hull Church, supra, the Watson Court stated:
"In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers 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 anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.
"Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals. Each of these large and influential bodies (to mention no others, let reference be had to the Protestant Episcopal, the Methodist Episcopal, and the Presbyterian churches) has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which as to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so." Id. 80 U.S. at 728-29.
24 In sum, upon joining the Church of Christ, Parishioner expressly and impliedly consented to the Church's doctrine and was subject to its disciplinary procedures. The actions of the Elders taken against her were consistent with Church rules and laws both prior to and after her attempted unilateral withdrawal of membership. In my view, her withdrawal has no effect on the Elders' actions. The disciplinary proceedings against Parishioner had already begun before her withdrawal, and the Elders' post-withdrawal actions were merely a continuation of the initial proceedings against her.
25 I therefore would hold the Elders of the Church of Christ are free to discipline Parishioner as a Church member (and former member) under the protection of the First Amendment without State interference and Parishioner may not escape such discipline by unilaterally withdrawing her membership. I would find the trial court had no power of review over the disciplinary proceedings against Parishioner, a matter which is at the core of ecclesiastical concern, under the constitutional mandate of separation of church and state. Accordingly, I would reverse the judgment of the trial court.
[Bold added]
It seems to me that until one can determine just what exactly are "disciplinary proceedings", one can't know at what point any given church may lose its absolute privilege.
For example, when do the Mormon church's disciplinary procedings start? when the bishop first hears your confession and he takes away your temple recommend and forbids you to partake of the sacrament? is it later, when the member refuses to or simply can not give up his/her sinning ways and the Bishop initiates a court and disfellowships that member, but doesn't go as far as excommunication? is it only when the actual excommunication proceedings begin?
Would it not depend on the church laws regarding disciplinary proceedings? And, specifically, in the case of the Mormon church, wouldn't this be determined by how the procedures were defined and layed out in the church handbook of instructions? And, as an aside, if a church were so inclined, could they not write their handbook in such a way that from the first meeting with the bishop where he takes away a temple recommend, etc. it is defined as the beginning of church disciplinary proceedings which in certain cases may not have run their course until one is formally excommunicated?
I don't know.
What do you think?
Should I post up the relevant portions of the church handbook and we can try to determine where these "disciplinary proceedings" actually begin?
It might be an interesting investigation.
Can we really know how the courts would apply this ruling, in the case of a member of the Mormon church, without knowing what the handbook says?
I don't think so.
Edited to add links:
Guinn
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=OK&vol=/supreme/1989/&invol=1989OK8
Hadnot
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=OK&vol=/supreme/1992/&invol=1992OK21