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In this Article, Professor Kent Greenawalt explores how civil courts can constitutionally resolve conflicts over religious property. Although the practical and theoretical significance of this part of First Amendment law has often been overlooked, issues concerning church property continue to raise difficulties for both the courts charged with their resolution and the church members who wish to avoid the courts' intervention entirely. This Article argues that the general approach of noninvolvement that the Supreme Court has advocated in this area is consonant with broader themes in religion clause adjudication. Within this more general approach, Professor Greenawalt considers the two alternative approaches approved of by the Supreme Court – the "polity-deference" and "neutral principles" approaches, and examines the justifications underlying both, their fairness or unfairness, and the practical barriers each poses for churches attempting to order their affairs as they choose. Ultimately, Professor Greenawalt concludes that while the general "hands off' approach to church governance advocated by the Supreme Court is fundamentally sound, aspects of both the alternatives permitted under such an approach raise serious problems. As a result, he argues, the Supreme Court should treat as unconstitutional the "polity-deference" approach, as well as certain versions of the "neutral principles" approach.


Law | Property Law and Real Estate | Religion Law


This article originally appeared in 98 Colum. L. Rev. 1843 (1998). Reprinted by permission.