The Supreme Court is seriously considering doing something it almost never does:  take a case not to resolve a deep-seated conflict among the lower courts about how to interpret the law, but merely to correct a single court’s egregious error.  The irony is that if the Court takes the case, it may come face-to-face with a split concerning the First Amendment that has been simmering silently among the lower courts for forty years.  And if it takes the case, it will also open avenues to reconsidering the rights of churches and church-based institutions under the First Amendment Religion Clauses.

The Court’s Quandry

The Court has cogitated for almost nine months over whether to grant certiorari to hear Archdiocese of San Juan v. Feliciano.  As the case name suggests, Feliciano is a religious freedom case.  In Feliciano, three Catholic schools defaulted on their pension obligations to over 200 retired employees.  Some of those employees sued “the Roman Catholic and Apostolic Church in Puerto Rico,” a non-existent entity.  Most courts would have assessed damages only against the schools or entities that sponsored the schools.  But the Supreme Court of Puerto Rico held that the plaintiffs could collect damages against any Catholic institution in Puerto Rico. 

This decision threatens hundreds of parishes in six separate dioceses, as well as scores of other independent Catholic institutions, that had nothing whatsoever to do with the three Catholic schools or their pension plans.  The trial court gave the sheriff the authority to seize Catholic assets anywhere in Puerto Rico even in the dead of night.  The court’s decision has wreaked economic chaos on the church, raising questions as to whether church buildings will be repossessed or accounts frozen to pay the pension liability.  Some church programs have been crippled by the uncertainty.  Some parishes, unclear about whether churches could be sold to pay the debt, are uneasy whether they can maintain a reliable schedule of Sunday services.  Given that 85% of Puerto Rico’s 3.2 million people are Catholic, the court’s decision represents an extraordinary governmental assault on the independence of the vast majority of religious institutions on the island.

The Supreme Court nevertheless has hesitated for months to take the case.  Rarely does the Court accept a case merely to correct one court’s error.  But superstar Supreme Court lawyer Paul Clement, who filed the request that the Court hear the case, could not point to any splits in the lower courts.  The case is further complicated by the fact that, unlike in virtually all other American jurisdictions, very few Catholic Church institutions in Puerto Rico are incorporated under the civil law.  If the Supreme Court takes this case, it might be concerned that it runs the risk that its decision will affect only Puerto Rico, not the entire U.S.  For a court that typically hears only cases of national significance, that is a serious stumbling block.

The Challenge:  An Unacknowledged Split in Church Autonomy Cases

But that analysis masks a deeper, more significant split that has plagued the lower courts for forty years and demands the Court’s attention.  Ever since the Supreme Court last decided a “church autonomy” case under the First Amendment, the courts have applied confusingly different standards that masquerade as one.  In the Court’s last case – Jones v. Wolf, 443 U.S. 595 (1979) – the Court adopted the “neutral principles of law” test for determining when civil courts may entertain cases involving a church.  The “church autonomy” doctrine, also known as the “ecclesiastical abstention” doctrine, teaches that civil courts may not interfere with the right of churches to govern themselves.  See, e.g., Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North Am., 344 U.S. 94 (1952).  For almost 100 years before Jones, the Supreme Court held that courts must defer to church tribunals if they have already decided an issue that is referred to the civil court system. 

In Jones, the Court held that, at least in property title cases, a civil court had other options.  Courts, the Supreme Court held, “‘may adopt any one of various approaches of settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.’”  Jones, 443 U.S. at 602 (emphasis in original, quoting Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 368 (Brennan, J., concurring)).  In particular, the Supreme Court held that secular courts could use “neutral principles of law,” derived from “objective, well-established concepts of trust and property law familiar to lawyers and judges” and applied to interpret secular provisions in deeds, church constitutions, and other legal documents.  Jones, 443 U.S. at 603.  Most courts now apply the “neutral principles of law” approach to the full range of civil disputes that find their way into secular courts.

The Split in the Lower Courts

The split comes in determining when courts that apply the “neutral principles of law” approach must defer to a church.  Some courts use only the “neutral principles of law” approach for determining whether they can decide a case without impermissibly interfering with the right of churches to govern themselves.  These courts understand the Court’s direction that courts “may adopt any one of various approaches” to mean that each jurisdiction can choose which approach to adopt for all of its cases.  These courts ask only one question when deciding whether the First Amendment allows them to hear the cause:  can the claims be decided by using “neutral principles of law” without having to address any “religious doctrinal” issues?  They brand themselves as “neutral principles of law” jurisdictions, and defer to churches only in those specific instances (such as the choice of clergy) in which the Supreme Court’s cases explicitly require courts to defer.

But other courts interpret the invitation to “adopt any one of various approaches” not as a call for courts to sort themselves into “neutral principles of law” jurisdictions or “deference to churches” jurisdictions.  Instead, these courts interpret the Supreme Court’s dictum as a description of different tools that every court must have at the ready in its judicial toolbox.  These courts understand the Supreme Court’s maxim to direct them to use “neutral principles of law” where appropriate, and to defer to churches where appropriate.  These courts have, in effect (and often explicitly) adopted a two-part test:  (1) determine whether the case may be decided according to “neutral principles of law,” and (2) determine whether the case intrudes coercively into governance of the church, even where there are no issues of religious doctrine.

The one-part test is most sharply illustrated by a case from the Second Circuit, while two cases from the Fifth Circuit and Texas Supreme Court exemplify the two-part test.  In Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2nd Cir. 1999), the Second Circuit held that a member of the Catholic Church could sue his diocese for breach of fiduciary duty, and that the church’s fiduciary duty could be derived from the church’s religious teachings.  The Second Circuit held that (1) breach of fiduciary duty is a claim that can be determined according to “neutral principles of law” that can be litigated without deciding any issues of religious doctrine and (2) so long as the jury was not asked to decide whether religious doctrine was true, it could determine whether that doctrine created legal rights that could be enforced in secular courts.  The Second Circuit, relying exclusively on a “neutral principles of law” approach, held that civil courts could resolve claims built upon the religious doctrine of a church provided that the courts are not required to resolve any religious doctrinal issues.  

That approach contrasts sharply with Fifth Circuit and Texas Supreme Court decisions in Combs v. Central Texas Annual Conference of United Methodist Church, 173 F.3d 343 (5th Cir. 1999) and Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).  In Combs, the Fifth Circuit held that courts must go beyond the “neutral principles of law” analysis of whether the case could be resolved without having to “evaluate or interpret religious doctrine.”  173 F.3d at 350.  Courts, the Fifth Circuit held, must also determine whether the case requires the courts to “necessarily intrude into church governance in a manner that would be inherently coercive.”  Id.  In Westbrook, the Supreme Court of Texas adopted the Combs two-part test in holding that the First Amendment barred a congregant’s professional negligence claim against her pastor, who was a licensed marriage counselor.  The First Amendment barred the claim, the court concluded, because it could not disentangle the pastor’s role as a professional counselor from his role as pastor.  “[W]hile the elements of [a] professional-negligence claim can be defined by neutral principles without regard to religion,” the Texas Supreme Court held, “the application of those principles to impose liability on [the pastor] would impinge upon [the church’s] ability to manage its internal affairs….”  Westbrook, 231 S.W.3d at 400 (italics in original). 

How This Split Affects Feliciano 

When seen in this light, the decision in Feliciano applies more broadly that to just a single dispute on the Island of Puerto Rico.  The Puerto Rico Supreme Court erred by failing to understand that the case could infringe the church’s right to self-governance even if the “neutral principles of law” test appeared to suggest otherwise.  In Feliciano, the Puerto Rico Supreme Court held that the former employees’ claims could be determined according to “neutral principles of law,” and therefore concluded that the First Amendment permitted it to hear the case.  But the court never went further than to determine whether it was being asked to resolve issues of religious doctrine.  It never inquired into whether the scope or nature of the relief being sought would cause the court to intrude coercively into church governance.  Furthermore, the Puerto Rico Supreme Court explicitly rejected the argument that it should respect the manner in which the church divided itself into separate parishes, dioceses, and other entities.  By rejecting this argument, the court effectively insisted on the right to reorganize the internal structures that the church itself had created.  In a word, the court ignored the inherently intrusive nature of the case and, failing to craft a remedy that avoided this pitfall, interfered directly with the church’s right to govern itself.


In the forty years since the Supreme Court last decided a “church autonomy” case, two distinct approaches, which often yield dramatically different results, have grown up in the lower courts.  Feliciano presents one of the most dramatic examples of how courts applying a one-part test limited solely to the “neutral principles of law” approach can reach results that can seriously damage church rights to govern themselves free from governmental interference.  It demonstrates further that any serious reading of the First Amendment Religion Clauses must take into account the rights of churches and related institutions, and not just the rights of individuals.

The Supreme Court has not yet granted cert in Feliciano, although it appears troubled by the result.  Regardless of what the Court does in Feliciano, the confusion and contradictions in the lower court cases make this an important religious liberty issue to watch in the future.