Washington Law Review


Theodore G. Lee


Real property disputes between units or members of the same church are common in the United States. To resolve such disputes, the Supreme Court has endorsed two doctrines: the hierarchical deference approach and the neutral-principles of law approach. The Court has justified both doctrines on the First Amendment’s Establishment and Free Exercise Clauses, but this justification is problematic. Specifically, under the hierarchical deference approach courts must always give preferential treatment to one religious group over others—effectively endorsing a particular religion. On the other hand, courts can enforce their own interpretations of religious issues under the neutral-principles approach, thereby infringing free exercise of religious beliefs. And because Washington State courts use both approaches, they also use a flawed jurisprudence. To cure these defects, this Comment proposes that Washington State courts should treat church property disputes the way they treat property disputes from secular nonprofits or fraternity organizations. This streamlined treatment conforms to existing statutes and to Washington State Supreme Court precedent. In sum, removing the First Amendment’s role is a simple and effective way for Washington State courts to resolve church property disputes without violating the federal Constitution.

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