Intra-Church Property Disputes and the Failure of Neutral Principles: A Call for a Return to the Deference Standard

The issue of intra-church property disputes is one that is simultaneously quite old in American history and perhaps of greater relevance now than ever before. Given ever-increasing dissension within Christian church bodies over issues including homosexuality, women's ordination and racial justice, there are currently numerous church property disputes outstanding in the courts, and there are likely to be many more in the near future. From 1871 until 1979, the Supreme Court of the United States consistently took a deferential approach in property cases that involved church bodies with their own authorities and tribunals. When a dispute arose over church doctrine, polity or discipline and a hierarchical church reached its own decisions regarding proper ownership of the church's property, the Supreme Court determined that civil courts should defer to that church's internal decision-making process. The court first created this doctrine as a matter of ‘federal common law’ but in 1952 anchored it in the First Amendment's Free Exercise and Establishment clauses, applied to the states through the Fourteenth Amendment. During the mid-twentieth century, the Supreme Court consistently extended the deference standard against any state-level attempts to restrict or circumvent it. However, in the 1979 case of Jones v Wolf the court changed its standard significantly and adopted a ‘neutral principles’ approach, which weighs a church's internal documents and deliberations against property deeds, state property and trust statutes, and other sources, in an attempt to allow secular courts to rule on such cases while avoiding potential First Amendment concerns.

“Fighting for White Supremacy”

This chapter covers the years of Reconstruction from 1865 until its end in 1877. It discusses adoption of the Thirteenth Amendment, abolishing slavery, President Lincoln’s assassination after praising the amendment’s granting of Black voting rights, adoption of the Fourteenth Amendment in 1868, granting Blacks the “equal protection of the laws,” and adoption of the Fifteenth Amendment in 1869, providing federal enforcement of Black voting rights. Congress also established the Freedmen’s Bureau to assist newly freed Blacks, especially in setting up schools for Black children, although only one-fifth actually attended school. It also discusses the violent White resistance to Black voting, led by hooded nightriders of the Ku Klux Klan, and the massacre on Easter Sunday in 1873 of some two hundred Blacks in Colfax, Louisiana, murdered by Whites after Blacks were elected as sheriff and other officials. Three White men were convicted of participation in the massacre, but the Supreme Court reversed the convictions in United States v. Cruikshank in 1876, opening the door to the end of Reconstruction after the “stolen election” that year ended with Rutherford Hayes as a Republican president who capitulated to southern demands that federal troops withdraw from slave states, paving the way for Black disenfranchisement and restoration of White control.

Text and Originalism

Scalia is originalism and textualism’s most visible advocate—as is evident in his being taken as the model jurist for the appointment of justices Gorscuh, Kavanaugh, and Barrett—even while his interpretation of text was driven by his unwritten ideas. Scalia sought to limit judicial discretion, which is why he turned to text and original meaning. Much like Justice Black’s textual jurisprudence, Scalia’s jurisprudence of original meaning is rooted in unwritten understandings about democracy and the nature of the judiciary that are not obviously drawn from text. While Scalia frequently chastised his colleagues for departing from the Constitution, his quarrels with them were largely over unwritten understandings and ideas that we can see when we turn to his opinions regarding Fourteenth Amendment due process.

Text and Textualism

This chapter focuses on Justice Hugo Black, the most prominent modern advocate of constitutional textualism to sit on the Supreme Court, revealing the unwritten understandings that drive Black’s textualist jurisprudence. Justice Black was most famous for advocating that the Fourteenth Amendment applied to the Bill of Rights to the states. Black argued that the liberty protected by the due process clause included, and only included, rights enumerated in the Bill of Rights. Black was famous for his constitutional literalism, pointing to his pocket Constitution to ask where a right like “privacy” was found in the Constitution. Yet Black’s own interpretation relied on his desire to cabin and limit judicial will much more than on constitutional text. It was Black’s understanding of the role of the judiciary in a democracy—and not constitutional text—that drove his jurisprudence of incorporation.

Living Freely Behind Bars: Reframing the Due Process Rights of Transgender Prisoners

Federal constitutional jurisprudence, as it stands today, provides insufficient protections for transgender individuals who are incarcerated. Transgender prisoners face high rates of physical and sexual assault, harassment, and other mistreatment by state and federal prison officials and individuals incarcerated with them. Commonly pursued avenues for relief—namely the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the right to privacy—present hurdles in the form of too-hard-to-meet legal standards, and they perpetuate harmful stereotypes and cultural norms that should occupy no place in modern constitutional law. This Note proposes that, instead of relying on these inadequate constitutional claims to vindicate their rights, transgender prisoners and their advocates should consider litigating under the Due Process Clause of the Fifth and Fourteenth Amendments, articulating a right to live freely in accordance with one’s gender identity. Recognition of such a right would enable plaintiffs to utilize more favorable substantive due process legal standards and eschew perpetuating outdated notions of gender within the law.

The Great Mistake

Worn down by the summer of 1866, Kelso withdrew from the fall election. There was still work to be done, however, in the second session of the Thirty-Ninth Congress in the spring of 1867. He helped push the Radical Republican agenda for Reconstruction, including passage of the Fourteenth Amendment. He was one of the first to call for the impeachment of President Andrew Johnson. He proposed another constitutional amendment, which would have promoted racial, gender, and social equality and given a federal guarantee to public education. But as lobbyists offered railroad junkets and stock schemes, he also saw political corruption firsthand. In retrospect, though, he felt his greatest mistake was in rejecting the administration’s offer to make him a diplomat, which would have changed the course of life and avoided the tragedies that shortly followed.

Captain Kelso Goes to Congress

The Thirty-Ninth Congress was one of the most eventful in U.S. history. Despite obstruction from President Andrew Johnson, it passed the Civil Rights Bill of 1866, the First Reconstruction Act of 1867, and the Fourteenth Amendment to the U.S. Constitution. Kelso voted with the Radical Republican majority, outlining his position in a House speech, and he also proposed his own constitutional amendments. The first session was marred, though, by the challenge to his seat by his opponent Boyd, who disputed the results of the election. Kelso’s political reputation back in his district, too, was damaged by his intemperate public letter denouncing Boyd and announcing early for the next election.

Conflict of Laws, Choice of the Forum Court in the us, and the Due Process in Family Law Disputes

Summary In the United States (US) the family law litigant will have to consider the implications of laws that are federally recognised and those which the state embodies in its own family law statutes. The function of the equal protection clause and due process clause of the Fourteenth Amendment of the Constitution protects the parties in family disputes that reach the court. The operation of the Full Faith and Credit Clause is an important consideration and is central to the question if the court can apply the law of the forum court (lex fori) or that of the state where the dispute emanated. The federal constitution allows the state courts to apply marriage laws of another state. If the issue is procedural, then the law of the state will be applied where the dispute that gave rise to the litigation (lex loci). This paper examines the interstate in family law by considering marriages, child custody, and adoption rules and it enquires whether the courts have been sufficiently consistent in interpreting family law of the state in accordance with Article IV, Section 1. There is also a section that compares the law in the US with the application of the lex fori rules in family cases in the Scottish jurisdiction and how that influences parties in family law disputes.

Written Constitutionalism, Past and Present

Debates over constitutional originalism almost always center on meaning. Questions are typically focused, concentrated on the meaning of particular constitutional clauses at the moment of their inception: the Commerce Clause in 1787, the Second Amendment in 1791, or the Fourteenth Amendment in 1868. Given the prevalence of these investigations, theoretical and methodological debates over how to recover original constitutional meaning are concentrated on either the kind of meaning that should be targeted—original public meaning, original intended meaning, or original legal meaning—or how that meaning can be recovered—through conventional legal reasoning, corpus linguistics, or thick reconstruction of historical context. Regardless, virtually all originalist theories of meaning uncritically presuppose the nature of the object possessing that meaning: they take as given what the Constitution itself is and, by implication, what it has always been. Although it might not be clear what the Constitution originally meant, it is straightforward what the original Constitution originally was. It just is the Constitution.