592 N.E.2d 918


No. 90CVH 12 9840.Court of Common Pleas, Franklin County.
Decided August 1, 1991.

[*] Reporter’s Note: No appeal has been taken from the decision of the court.

John W.E. Bowen, for plaintiffs.

Theodore Scott and Thomas W. Hill, for defendants.

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Plaintiffs’ second motion for preliminary injunction was referred to this referee for hearing. The matter was presented in two days of hearings on July 9 and 15, 1991, and by written stipulations of fact filed July 25, 1991. This referee incorporates the stipulations, the exhibits attached to the stipulations, the exhibits admitted at these proceedings, and the exhibits admitted at the hearing on the first motion for preliminary injunction into this report as if fully rewritten herein.

A brief summary of the facts is in order. Plaintiffs are some seventy-five members of the congregation of defendant Shiloh Baptist Church who are concerned about certain decisions and the internal administration of the church. The church’s decision-making process was the subject of this referee’s report filed January 23, 1991, on the first motion for preliminary injunction. The individual defendants are the pastor and individual deacons of Shiloh Baptist Church. Also named as a defendant is the board of deacons.

As a part of the ongoing dispute within the church regarding plans for a new church building, plaintiffs filed their initial complaint and a first and second supplemental complaint. After a series of legal proceedings and events within the church, the board of deacons on June 17, 1991, voted nine to five in favor of a recommendation to the congregation of the church that plaintiffs’ memberships in Shiloh Baptist Church be terminated. A vote by the congregation was scheduled for June 30, 1991, but was not held due to the issuance of a temporary restraining order by a duty judge of this court. That temporary restraining order was later extended by this branch of the court.

Because this proceeding is a motion for preliminary injunction, a set of legal tests different from those used in a trial on the merits would apply. It should be noted that counsel for defendants, in open court, declined the opportunity to consolidate the preliminary and permanent injunction hearings. The tests for the issuance of a preliminary injunction are:

(1) the likelihood of the plaintiff’s success on the merits;

(2) whether there exists an adequate remedy at law;

(3) whether the injunction would prevent irreparable harm; and

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(4) a balancing of the potential injury to the defendant and the general public.

See Diamond Co. v. Gentry Acquisition Corp. (1988), 48 Ohio Misc.2d 1, 2, 531 N.E.2d 777, 779.

To resolve two of those issues initially, this referee would observe that plaintiffs do not have an adequate remedy at law in the form of money damages. It is impossible to put a dollar value on the precious freedom that our American society puts on religious liberty. A court would be hard pressed to remedy a deprivation of plaintiffs’ First Amendment freedoms by an after-the-fact adjudication. On the related test regarding irreparable harm, a similar analysis would apply. In light of the length of tenure of membership on the part of plaintiffs (stipulated as ranging within that group from five to seventy-six years in continuous duration) and the extent of some family traditions in the church (one plaintiff is a fifth generation member and one a fourth generation member), it can be safely said that continuous membership in Shiloh Baptist Church is a highly valued right. Loss of such a right, even for the pendency of this litigation, would be uniquely grievous to plaintiffs and would constitute a loss for which there would be no spiritual or legal substitute. Neither side seems to seriously debate the nonexistence of an irreparable harm or the absence of an adequate remedy at law.

Plaintiffs’ argument regarding their likelihood of success on the merits focused on the alleged noncompliance of defendants with the Constitution and By-Laws of Shiloh Baptist Church. Article I, Section 5(b) of the By-Laws reads as follows:

“Exclusion or Discipline. Should any member become an offense to the Church and to its good name by reason of immoral conduct, or by persistent breach of the Covenant, or by non-support of the Church, the Church may terminate his membership, but only after due notice, and a hearing and after faithful efforts have been made by the Deacons to bring such a member to repentance and reformation.”

This clause differs somewhat from the other portion of the By-Laws relating to discipline. That section, Article VIII, Section 4, of the By-Laws provides:

“Should any member become an offense to the Church and to its good name, by reason of immoral or un-Christian conduct or by consistent breach of his covenant vows and stewardship, the Church may terminate his membership, but only after a written notice and a hearing before the Board of Deacons, and after faithful efforts have been made to bring such members to repentance.”

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Plaintiffs do not assert that there were any procedural problems regarding the notice for the meeting called on June 17, 1991, to discuss the recommended termination or the notice for the June 30, 1991 meeting which would have been the voting meeting but for the temporary restraining order.

A key witness to plaintiffs’ presentation was Grady Pettigrew, who, at the time of the adoption in May 1977 of the Constitution and By-Laws of Shiloh Baptist Church, was a church member, and was the legal advisor to the church generally and to the drafting committee specifically. Pettigrew’s testimony, which this referee finds to be very persuasive, was to the effect that the drafters of the Shiloh Baptist Church Constitution and By-Laws, being cognizant of the civil rights movement and of the rights of its members under the United States and Ohio Constitutions, did not intend to limit a church member’s rights as a citizen by way of church discipline. Pettigrew indicated that the drafters did not frame the discipline clauses of the church’s governing documents so as to restrict a member’s legal rights, including the right to go to court for the redress of grievances.

Defendants have not asserted that any reason exists (such as nonpayment of dues or nonattendance) for plaintiffs’ removal as members except for the existence of this litigation. Defendants do assert that there is a basis in Scripture for the exclusion from church membership of those who take church disputes outside the church for resolution. In light of Pettigrew’s testimony regarding the consistency of a member’s rights as a citizen and as a part of the congregation, and the absence of other articulated grounds for termination of membership, this referee is required to conclude that plaintiffs are threatened with loss of membership solely for the exercise of their rights as Ohio citizens to obtain justice through the courts of this state and that such a termination is contrary to the intent and spirit of the constitution and by-laws of Shiloh Baptist Church. This referee accordingly finds that there exists a likelihood of plaintiffs’ prevailing on the merits.

As plaintiffs have demonstrated that three of the four criteria for the issuance of a preliminary injunction have been met, this referee must turn to the fourth test regarding equitable harm to defendants and the general public, if a preliminary injunction were to be granted. This issue, concerning the limits of a civil court’s power in a religious dispute, lies at the heart of this case and has been ably argued by both sides since this case was filed.

Any analysis of First Amendment principles as applied to intra-church disputes has its beginnings with the grandfather case of Watson v. Jones (1872), 80 U.S. (13 Wall.) 679, 20 L.Ed. 666. It is interesting to note that while Watson is regarded as a church property dispute case, a close reading of the opinion shows that the property disagreement had its roots in a deeper conflict

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over church discipline and membership in post-Civil War Kentucky. The Watson holding, strictly limiting the extent to which a civil court can go in resolving a church property dispute, has been considered to be of a constitutional dimension by later United States Supreme Court cases. See Presbyterian Church v. Hull Church (1969), 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658, and Serbian Eastern Orthodox Diocese v. Milivojevich (1976), 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151. Both of those cases quote favorably from Watson and give their approval to the following passage:

“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. * * * All who unite themselves to such a body [the general church] do so with an implied consent to [its] 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 any one aggrieved by one of their decisions could appeal to the secular courts and have them [sic] 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.” 80 U.S. (13 Wall.), at 728-729.

The Hull Church opinion described this language as having “a clear constitutional ring.” 393 U.S. at 446, 89 S.Ct. at 604, 21 L.Ed.2d at 663. Serbian, supra, 426 U.S. at 710, 96 S.Ct. at 2381, 49 L.Ed.2d at 163, also quoted from Watson to make the point that:

“`[T]he rule of action which should govern the civil courts * * * is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.’ * * * [Watson] [13 Wall.] at 727 [20 L.Ed. at 676.]”

This rule of court deference to hierarchical church decision-making under First Amendment law was applied i Serbian, even though the Illinois courts in that case concluded that the Serbian Orthodox Church did not follow its own constitution and penal code.

There is no dispute in the case at bar that Shiloh Baptist Church is a congregational, and not a hierarchical, church. Does this significant difference in church structure and government make a difference in a constitutional

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adjudication? This referee concludes that it does not, for the following reasons.

Creating a different standard for civil court review of church disputes for hierarchical and congregational churches would create differing levels of government intrusion into church affairs, presumably with more intrusion in the congregational houses of worship. But courts and government, under the First Amendment, are required to treat all religious faiths equally and neutrally. Everson v. Bd. of Edn. (1947), 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Larson v. Valente (1982), 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33. That dictate is clearly spelled out in Epperson v. Arkansas (1968), 393 U.S. 97, 103-104, 89 S.Ct. 266, 269-270, 21 L.Ed.2d 228, 233-234:

“Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.”

In light of this fundamental principle of neutrality, a civil court could not allow the decisions of a hierarchical church to go unchallenged while making detailed inquiries into the practices of a congregational church. Accordingly, the precedents of Watson, Serbian and similar cases should extend to congregational churches.

This identical treatment between denominations has a basis in history. America, at the time of the adoption of the Constitution and the Bill of Rights, was a religiously diverse society. While the Founding Fathers probably never envisioned church litigation of this magnitude, it can be said that they knew of and recognized the religious liberties of many different denominations. A country that was a religious haven for many divergent sects with rituals and internal practices as varied as the Catholics and the Quakers must surely have intended its founding documents to apply equally to hierarchical, congregational, and every other form of church.

Recent cases from other jurisdictions support the concept that congregational churches are free from secular court scrutiny of their internal practices and discipline. Se Burgess v. Rock Creek Baptist Church (D.D.C. 1990), 734 F. Supp. 30 (a purely membership dispute in a congregational Baptist Church); Grunwald v. Bornfreund (E.D.N.Y. 1988), 696 F. Supp. 838
(a case involving a form of excommunication from an orthodox Jewish community); Paul v. Watchtower Bible Tract Society
(C.A.9, 1987), 819 F.2d 875, certiorari denied (1987), 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (no court review of the practice of “shunning” within the Jehovah’s Witnesses community); and

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First Baptist Church of Glen Este v. State (S.D.Ohio 1983), 591 F. Supp. 676 (role of state court judge in resolving a membership dispute in a Baptist church).

Ohio cases have also followed the general rule that courts will be very limited in their involvement in church property disputes. Serbian Orthodox Church v. Kelemen (1970), 21 Ohio St.2d 154, 50 O.O.2d 367, 256 N.E.2d 212; State, ex rel. Morrow, v. Hill (1977), 51 Ohio St.2d 74, 5 O.O.3d 45, 364 N.E.2d 1156 Christensen v. Roumfort (1984), 20 Ohio App.3d 107, 20 OBR 139, 485 N.E.2d 270; Southern Ohio State Exec. Offices of Church of God v. Fairborn Church of God (1989), 61 Ohio App.3d 526, 573 N.E.2d 172, appeal dismissed (1989), 45 Ohio St.3d 708, 544 N.E.2d 695, certiorari denied (1990), 493 U.S. 1072, 110 S.Ct. 1117, 107 L.Ed.2d 1024. The First Amendment concerns which militate against court entanglement with property disputes of religious groups would be even more strongly applicable to membership problems within churches. The question of who is one’s co-religionist is more nearly central to issues of faith and practice revered by the First Amendment than secular concerns such as who has the deed to the house of worship.

It is this referee’s opinion, based on United States Supreme Court case law and case law in Ohio and elsewhere, that a secular court should not resolve disputes over who can be a member of a particular church regardless of whether that church is hierarchical or congregational.

Plaintiffs cite Randolph v. First Baptist Church (C.P. 1954), 68 Ohio Law Abs. 100, 53 O.O. 288, 120 N.E.2d 485, for the contrary proposition that a civil court will step in to protect a church member from threatened or actual loss of membership. This referee is not persuaded by the Randolph case, despite its unusual length and scholarship for a trial court opinion. Th Randolph opinion does not have the benefit of the nearly forty additional years of First Amendment case law that exists today Randolph is only persuasive authority as it emanates from another common pleas court and has apparently not been followed by other Ohio courts in regard to internal church processes. Perhaps the biggest difficulty in applying the Randolph reasoning to this case is that, when carried to its logical conclusion, the reasoning used there works against plaintiffs herein. In large measure, Randolph makes the point that principles of equity practice, which apply to property rights, should apply as well to intangible rights such as privacy and membership in organizations. However, in deciding whether to issue an injunction, a court must consider in a balancing test the equitable rights of both sides of the case. If all people have intangible rights which should be protected by equity, defendants, as well as plaintiffs, should enjoy that benefit. Case law more current than Randolph demonstrates that all church members have free exercise rights

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under the First Amendment which cannot be abridged by having a secular court make decisions affecting internal church practices. The judge in Randolph did not consider how the congregation’s rights would be affected by granting an injunction recognizing Mrs. Randolph’s intangible rights. Given modern case law, Randolph cannot stand for the proposition that a court will use an injunction to reinstate an ex-member against the rights and wishes of the rest of the church body. At most, because of its unusual fact pattern, Randolph would have continuing validity only for the concept that a church cannot change its constitution and, on the same day as the amendment, summarily expel a member without notice. For these reasons, this referee will decline to follow Randolph.

This referee concludes that the issuance of a preliminary injunction favoring plaintiffs in this case would seriously prejudice the First Amendment rights of defendants and the members of the congregation of Shiloh Baptist Church who are not parties to this case, and would create a precedent for other cases which would be contrary to constitutional principles, thereby causing harm to the general public.

Because of these limits on a court’s ability to resolve questions of church membership by adjudication, this referee concludes that there would be no material evidence that could be garnered by further cross-examination of Pastor Wise regarding statements made from the pulpit during services. This referee will, accordingly, overrule the motion for additional testimony and regard the evidence as closed and the matter submitted.

For the reasons set out in this report, this referee will recommend to the court that plaintiffs’ second motion for preliminary injunction be overruled. Because of the importance to both sides of this issue (and indeed under the First Amendment, the importance of this issue to all of society), this referee will not recommend that this decision be made immediately effective under Civ.R. 53(E)(7). It would be more suitable to the significance of this question that the court wait for objections from counsel before making a final ruling.

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