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A Defense of the Compulsory Deference Approach for Church Property Litigation”

Matthew R. Goldammer

When Americans reflect on the qualities that make their patria extraordinary, many identify the freedoms enshrined by the Constitution and the Bill of Rights as significant contributors to a distinct American ethos. The First Amendment protecting freedom of religion is one of these enshrinements on which millions of Americans rely daily. The separation of church and state is so woven into the fabric of American society that it is often taken for granted. Today, scholars, judges, and the general public emphasize different historical aspects to lead towards different policy outcomes. Defenders of religious freedom identify governmental attempts to limit religious expression as evidence of government intrusion and overreach. But opponents of this analysis, often endorsing a more secular worldview, tend to view government intervention more optimistically, if such involvement accomplishes preferred policy goals.

The drama of this debate over the proper relationship between church and state unfolds in a particularly acute and often controversial way in church property litigation. Church property disputes represent crises within religious communities that must be resolved peacefully, and adjudication provides a constructive forum for this resolution to take place. At the same time, whatever judicial involvement is present must respect the First Amendment’s religion clauses.

This article explores which judicial posture is proper for property litigation involving the Roman Catholic Church. The first sections will assess the constitutional foundations of this issue and then contrast the Supreme Court’s decisions in Watson v. Jones and Jones v. Wolf. The latter half of this essay applies this analysis to the Roman Catholic Church, endorsing the compulsory deference approach. Later, more radical methods of resolving jurisdictional inconsistencies—such as statutory interventions—are also discussed, but ultimately rejected. Finally, this article concludes that, when resolving property disputes involving the Roman Catholic Church, judges should use the compulsory deference approach.


Constitutional Foundations

Before juxtaposing the compulsory deference and neutral principles approaches, one must first grasp the constitutional framework from which these methods derive. The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Due Process Clause of the Fourteenth Amendment to the United States Constitution has been interpreted to incorporate most Bill of Rights protections, including the First Amendment religion clauses, against state governments. Accordingly, there has been a strong commitment throughout American history to maintaining freedom of religion. This freedom is a fundamental right extending beyond mere freedom of worship, but rather to allow citizens to live out their religion and act on it in the public sphere, free from the fear of government interference.

What Freedom from Government Interference Means in Practice

The First Amendment religion clauses guarantee that the government will not unduly intrude into the affairs of religion. But when competing church factions sue for control of church property, courts must resolve the dispute without meddling in theological doctrine. The Supreme Court had to determine what constitutes inappropriate interference into religious affairs, while simultaneously avoiding the opposite extreme that holds that courts should have nothing to do in these cases. In Watson v. Jones, 80 U.S. 679 (1871), the Supreme Court decided how courts should address litigation involving church property disputes.

But before one can fully grasp the Court’s analysis in Watson regarding government deference to the hierarchical church’s decision, it is beneficial first to describe churches’ varying structural configurations, which shape how courts adjudicate the property disputes.

As Watson recognized, some churches have congregational structures, meaning that the church stands alone as an autonomous community instead of being subject to a larger hierarchical structure. Other churches have more hierarchical structures, where a local parish church is subject to the oversight of a larger organizational structure of a diocese, congregation, or synod, depending on the church’s denomination. Still other churches have a structural model somewhere in between congregational and hierarchical arrangements, where property is held “in trust” for the denomination, and the denomination’s equitable interest in the property cannot be altered without denominational action. This structural spectrum between congregational and hierarchical churches directly implicates church property disputes. If the church is organized congregationally, then the court only receives the specific claims of the majority and minority factions, for neither group has recourse to a higher ecclesial body before filing suit. But in hierarchically organized churches, the majority and minority factions likely have already petitioned the ecclesial governing body before the secular court receives the case.

Having examined these structural differences between religious communities to clarify the variety of church property disputes, it is appropriate to examine Watson v. Jones and Jones v. Wolf as proposing two competing methods of resolving such disputes.

Watson v. Jones (1871)

In Watson, majority and minority factions developed in a hierarchical Presbyterian church over how to structure church trustees in light of disagreements about slavery. Some members appealed to the Synod of Kentucky, which appointed a committee to visit the congregation that could decide the pastor election as well as elder disputes. One of the elders sued in the local trial court, which ultimately recognized him and his associates as legitimate elders. But the Court of Appeals of Kentucky reversed the trial court order, and on remand, the trial court made the distinction between elders and trustees of the original church order.

The United States Supreme Court granted certiorari—accepted the case for review—and noted that the General Assembly, the church’s highest governing level, issued its determination about how the dispute should be resolved. The question presented was whether the Supreme Court as a secular tribunal should defer to the church hierarchy’s determination and thus affirm the ecclesial decision. Ultimately, the Watson Court held that secular courts should defer to the church hierarchy’s determination. The Court identified the Presbyterian church as a hierarchical church, and it ruled that a deferential judicial posture towards the hierarchical formulation was appropriate. The Court thus affirmed the hierarchical church’s decision, avoiding intrusion into the church’s internal affairs. 

Watson proved influential in shaping First Amendment jurisprudence, especially in terms of vindicating church autonomy. The compulsory deference approach that Watson endorsed for hierarchical churches allows these churches to determine for themselves their future orientation and governance. The secular court’s judge adjudicating the case may not agree with how the church’s higher levels of governance had decided, but under the compulsory deference approach, the judge’s personal beliefs do not matter. As the Court clearly expressed, whatever the church’s hierarchy decided, the court must accept as final.

Jones v. Wolf (1979)

The Supreme Court changed course in Jones v. Wolf, 443 U.S. 595 (1979). In Wolf, the Blackmun majority endorsed the neutral principles method, allowing courts to examine neutral documents such as property deeds and other founding documents to make an independent judgment about the litigants’ merits. The Powell dissent in this case, however, continued to favor the Watson compulsory deference method, preferring to resolve church property disputes in the least invasive manner. While Wolf did not reject the compulsory deference method as unconstitutional, it nevertheless signified a shift in the Court’s preference towards the neutral principles method. This neutral principles method has advantages in certain situations, but in adjudication involving the Roman Catholic Church, the neutral principles method presents problems that the compulsory deference method avoids.

Wolf involved another local Presbyterian church subject to an ecclesial governing body, making the hierarchical ecclesial structure in Wolf similar to the hierarchical arrangement in Watson. But Wolf changed course by acknowledging that a method other than the compulsory deference approach—here, the neutral principles approach—can successfully adjudicate church property disputes without intruding into church affairs. This endorsement of the neutral principles method, however, failed to grasp that the source of the church factions’ original disagreement was a theological dispute, not a structural one. But the Wolf majority believed that the neutral principles method could survive potential difficulties in application, thus vacating the Georgia Supreme Court ruling and remanding it for further proceedings.

Wolf’s holding allows lower courts—even in cases involving hierarchical churches—to examine secular documents to determine for themselves which litigating faction is the authentic church entitled to the property at issue. The court’s independent judgment might concur with the determination of the church’s higher hierarchical levels, whereby there is no conflict between the secular and religious pronouncements. But the court could utilize the neutral principles method to rule for one litigant while the church’s higher hierarchical levels endorsed the opposing litigant. The neutral principles approach creates a conflict between the secular and religious determinations. But the compulsory deference approach avoids this conflict entirely; the court would defer to the church hierarchy’s determination, meaning that the court would rule for the litigating party that the church hierarchy had endorsed. The compulsory deference approach creates no conflict between the secular and religious resolutions.

The Unique Position of the Roman Catholic Church

The Roman Catholic Church is the example par excellence of a consistently organized hierarchical institution which is entitled to compulsory deference under Watson. One might mischaracterize the Catholic Church as simply different parishes scattered in a geographic area, or as a massive umbrella organization led by the Pope in Rome, but neither formulation comprehends the uniform structural integrity of the institution. To summarize briefly, Catholic parishes—the local church communities led by a priest called a pastor—all come under the leadership of the bishop of the diocese in which the local parishes are located. Dioceses in a region are centered around archdioceses, usually metropolitan areas. The archdiocese and surrounding dioceses form a province. Over all these structural distinctions is the Pope, who exercises supreme juridical and spiritual authority as set forth in the Code of Canon Law.

The Compulsory Deference Method as the Preferred Judicial Posture for Catholic Church Property Litigation

Title to property owned by the Roman Catholic Church is commonly vested in a church leader, such as a bishop. The logic of such a system is rooted in the intention that the property will remain within the Church over time. The Roman Catholic Church, by virtue of its universal nature, does not suffer from schisms or competing factions that might be seen in other Christian denominations. At the same time, the Roman Catholic Church still possesses a strong interest in establishing title to its property in a way that maintains its vested interest prudently. A bishop is usually the leader of a diocese, but he will not remain the bishop indefinitely, due to his retirement or death. Accordingly, title to the property is not vested in the bishop as an individual, but rather in the office of the bishop, so that the title to the property endures from one bishop to the next.

The office of the bishop provides a source of stability for title to the property. If a court employed the neutral principles approach to property presumptively held by the Roman Catholic Church, it is possible that by consulting the secular documents via purely secular means, a court could come to the conclusion that the bishop—and by extension, the Roman Catholic Church—does not hold title to the property. Depending on how the secular documents, such as the deed to the property or other founding records, were worded, a court could rule that a layperson in the diocese, for example, holds title to the property. Such a ruling may not seem too severe on its face, but the decision would break the line of one bishop passing title to the property to the next bishop, thus disrupting the consistent ownership that the Church intended to preserve. If, on the other hand, the court used the compulsory deference approach, the court would defer to what the Catholic Church hierarchy already determined for who holds title to the property. In other words, the bishop would demonstrate title to the property, and the court would defer to that determination. In this way, the compulsory deference approach avoids the conflict between church and state that might arise under the neutral principles method. Critics might argue that such conflict under the neutral principles method is unlikely. But even unlikely conflict is still possible, whereas deferring to the Church’s determination eliminates any possibility of conflict.

Evaluating More Radical Solutions: Formulations of Federal Legislation

Scholars have grappled with the viability of passing federal legislation to enshrine the neutral principles method as a sustainable adjudicatory approach to church property litigation. Legislation would also standardize the approach across courts. But the Roman Catholic Church’s particular organizational structure as well as its unique ways of holding title to its property cut against endorsing this proposed federal legislation. The hypothetical legislation would codify a form of the neutral principles method that would apply indiscriminately against the Church. It matters not that the neutral principles directive comes from Congress instead of the courts. Instead, the compulsory deference method is the only way to ensure in the long run that both the Free Exercise Clause and the Establishment Clause are respected in the church property dispute context.

But what if federal legislation were passed enshrining the compulsory deference method instead? There could be bolder and weaker forms of this alternative to the neutral principles legislation. 

The boldest form would entail passing a statute mandating that courts must use the compulsory deference model in church property disputes. Such sweeping legislation would effectively overrule Jones v. Wolf, because Wolf found the neutral principles method constitutionally permissible, whereas this legislation would require courts to use the compulsory deference approach. But such a broad federal intervention is incompatible with a commitment to federalism and the original intended scope of the federal government as one of limited and enumerated powers. Therefore, this formulation of alternative federal legislation is likely too strong and should be discouraged.

A weaker form of the federal statute would be to leave intact state regimes in all cases except those involving hierarchical churches. In other words, states could still use the neutral principles approach when dealing with congregational, non-hierarchical churches. This formulation has the advantage of not preempting state regimes as sweepingly compared to the stronger formulation. At the same time, the question emerges which churches should be considered hierarchical for purposes of the statutory regime. A church’s internal structure may not be as readily apparent as the Roman Catholic Church, which is easy to categorize as hierarchical. But the question then becomes whether Congress should empower secular courts to examine and categorize church structures so radically. Ultimately, this formulation of the federal statute is also too broad to accomplish the legislative goals without creating new problems. 

Finally, the most narrowly tailored federal statute would require courts to use the compulsory deference approach only in cases involving the Roman Catholic Church. The advantage of this “weakest” form lies in imposing the least invasive federal regime on the states, and only touching the Roman Catholic Church easily identifiable as hierarchical. Therefore, litigation costs would be low because the hierarchical structure would already be accepted. But the disadvantage of this formulation, even in its “weakest” form, is that it singles out the Roman Catholic Church from among all other religions for special treatment under the law. Some people might be content with such a distinction, given the Catholic Church’s universal character, but others likely would object to the secular government favoring one religion over all other types. Ultimately, this formulation also has significant problems to the extent that this article advises moving away from federal statutory regimes in general.

In lieu of federal legislation, then, this article proposes embracing the current system rooted in federalism by advocating for the compulsory deference approach on a state-by-state basis. This approach is no quick fix like the federal legislation discussed above, but it does the least offense to the principles of federalism. Even one state supreme court decision can change the state’s precedents, so state-by-state reform is preferable to blunt, top-down federal approaches.


In conclusion, it is apt to return to the core of the matter: jurisprudence should protect church autonomy. This article has focused on the Roman Catholic Church and the need for the secular government to respect its place in society, but ultimately, the principles grounding this article’s evaluations also apply to protecting all religions’ freedom. The compulsory deference approach remains the surest way for secular courts to adjudicate claims while simultaneously ensuring that the government does not overreach into the affairs of religion. The internal integrity of religion in the public sphere is at stake; whichever method courts select will affect the religious landscape for generations to come. ♦

Matthew Goldammer currently works as a judicial law clerk at the United States District Court for the Northern District of Illinois. A native of the Twin Cities in Minnesota, Matthew graduated with honors from Notre Dame Law School in May 2022. This piece is an abridged version of Matthew Goldammer’s Recently Published Article: 37 Notre Dame J.L. Ethics & Pub. Pol’y 11 (2023).

Recommended Citation

Goldammer, Matthew R. “A Defense of the Compulsory Deference Approach for Church Property Litigation.” Canopy Forum, May 3, 2023. https://canopyforum.org/2023/05/03/a-defense-of-the-compulsory-deference-approach-for-church-property-litigation/