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Forming Religious Communities and Respecting Dissenter's Rights: A Jewish Tradition Model for a Modern Society
Michael J. Broyde

V. Exclusion and the Financial Ramifications: The British and Canadian Approaches

A much more problematic case of exclusion, and the judicial response to it, occurs when the faith that is doing the excluding bundles religious rights with financial claims. A classical case of that is the division of property by a religious commune when it orders the excommunication of members, and the forfeiture of those members property rights. There are no United States cases addressing this issue as the Supreme Court has ruled that ecclesiastical disputes command secular court abstention if called upon to resolve matters of religious belief or governance. As stated in Serbian Eastern Orthodox Diocese v. Milivojevich: hierarchical religious organizations ... establish their own rules and regulations for internal discipline and government, and ... create tribunals for adjudicating disputes over these matters, [then the] . . . Constitution requires that civil courts accept their decisions as binding upon them." 109

Such is not the case in many other common law countries, which will freely review such determinations. Indeed, an example of the problems faced by a court in such a case can be found in Lakeside Colony of Hutterian Brethren v. Hofer of the Canadian Supreme Court.110 In this case the Canadian Supreme Court confronted the excommunication (and expulsion) of the Hofer family from a colony of the Hutterian Church of Canada for pressing a patent claim against another colony of the Church. Under relevant Church doctrine, which was codified in the articles of incorporation of the commune, expelled members lost their financial claim to the asserts of the commune.111

After reviewing the actions of the Church for conformity to Canadian Corporate law and adherence to its own associational bylaws, the Supreme Court announced that expulsions from these type of religious associations are also governed by "natural justice." The Court stated:

The content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are that of [1] notice, [2] opportunity to make representations, and [3] an unbiased tribunal.112

The Court then determined that the notice provided to the excommunicated members by the Church was insufficient and that the expulsion and excommunication were thus void. The Court ordered the excommunicated individual returned to the colony as members.113

In this author's opinion, the approach of the Canadian Supreme Court to the problems of excommunication is no better than most of its American counterparts when addressing remedies for excommunication. Under the guise of reviewing a property settlement, the court imposed substantive requirements of "natural justice" that might be completely foreign to any particular religious tradition's system of laws. Based on these laws of "natural justice," the Court will reverse a determination that a particular form of conduct merited excommunication from a particular religious denomination.114 These types of judicial determinations should, simply put, be beyond the scope of any secular court to make. To allow procedural review of an ecclesiastical court's determinations in the context of the property rights of the excommunicated has a certain amount of validity, as that property ownership issue is at its core secular. However, the question of membership in the colony of the Church should be beyond the review of the Canadian Supreme Court. The rights of the faithful to excommunicate for violations of religious doctrine -- without conforming to Canadian notions of due process -- would seem to be protected and any restrictions on that religious right should be incompatible with freedom of religion and association, both values codified in the Canadian Bill of Rights.115 One cannot help but recall the words of the learned Zechariah Chafee who observed:

In very many instances the courts have interfered in these [ecclesiastical disputes], and consequently have been obliged to write very long opinions on questions which they could not well understand. The result has often been that the judicial review of the highest tribunal of the church is really an appeal from a learned body to an unlearned body.116

Such is certainly the case when a court reviews ecclesiastical determinations for conformity with the etherial requirements of "natural justice."

A better example of how a court should address this type of challenge to exclusion can be found in the case of Regent v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth (Ex parte Wachmann)117 concerning the authority of the Chief Rabbi of Great Briton to defrock a clergyman for sexual misconduct. The clergyman appealed the decision to the Queen's courts, which ruled that the ecclesiastical functions of the Chief Rabbi, in determining who was religiously fit and who was not, were religious in nature and thus not subject to any secular review. This is true, the Court ruled, even though the declaration on the unsuitability of the applicant to occupy a position as a rabbi resulted in the applicant being "unemployable as a rabbi and is stripped of all religious status."118

Aware of the requirements of "natural justice" enforced by the Canadian court mentioned above, and plaintiff's desire to rely on them, this Court stated:

[Plaintiff] would be prepared to rely solely upon the common law concept of natural justice [to overturn the decision of the Chief Rabbi]. But it would not always be easy to separate out procedural complaints from consideration of substantive principles of Jewish law which may underlie them.

Jewish law does not recognize the elaborate requirements of natural justice in these types of cases,119 and the British Court rightly recognized that the exclusion of a person from a particular ecclesiastical function, or an exclusion of a person from a particular faith group, is itself not subject to any judicial review external to the faith that makes that determination.120 Of course, as noted by the Court, this determination of ecclesiastical exclusion by the Chief Rabbi would have no relevance to a determination of a breach of contract, or other financial rights and duties owed by one party to another.121 Those determinations would be made by the secular courts, independent of the ecclesiastical rules of the Chief Rabbi.

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