CHAPTER 4: CONSTITUTIONAL AUTHORITY TO REGULATE BUSINESS 69
FN6. Though not in the context of commercial speech, the Federal Communications Commission’s regulation of indecent
programming, upheld in Pacifica as to afternoon programming, was thought to make a substantial contribution to the asserted
governmental interest because of the “uniquely pervasive presence in the lives of all Americans” achieved by broadcast media,
438 U.S. at 748, 98 S.Ct. at 3040. The pervasiveness of beer labels is not remotely comparable.
FN7. Posadas contains language on both sides of the underinclusiveness issue. The Court first pointed out that a ban on
advertising for casinos was not underinclusive just because advertising for other forms of gambling were permitted, 478 U.S. at
342, 106 S.Ct. at 2977; however, compliance with Central Hudson ‘s third criterion was ultimately upheld because of the
FN8. Appellant has included several examples in the record.
We appreciate that NYSLA has no authority to prohibit vulgar displays appearing beyond the marketing of alcoholic beverages, but
a state may not avoid the criterion of materially advancing its interest by authorizing only one component of its regulatory *100
FN9. Though Edge Broadcasting recognized (in a discussion of the fourth Central Hudson factor) that the inquiry as to a
reasonable fit is not to be judged merely by the extent to which the government interest is advanced in the particular case, 509
U.S. at 430-31, 113 S.Ct. at 2705– 06, the Court made clear that what remains relevant is the relation of the restriction to the
“general problem” sought to be dealt with, id. at 430, 113 S.Ct. at 2705. Thus, in the pending case, the pertinent point is not how
little effect the prohibition of Bad Frog’s labels will have in shielding children from indecent displays, it is how little effect NYSLA’s
(2) Advancing the state interest in temperance. We agree with the District Court that NYSLA has not established that its rejection
of Bad Frog’s application directly advances the state’s interest in “temperance.” See Bad Frog, 973 F.Supp. at 286. NYSLA
maintains that the raised finger gesture and the slogan “He just don’t care” urge consumers generally to defy authority and
particularly to disregard the Surgeon General’s warning, which appears on the label next to the gesturing frog. See Brief for
FN10. The metaphor of “narrow tailoring” as the fourth Central Hudson factor for commercial speech restrictions was adapted from
standards applicable to time, place, and manner restrictions on political speech, see Edge Broadcasting, 509 U.S. at 430, 113
S.Ct. at 2705 (citing Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989)).
In its most recent commercial speech decisions, the Supreme Court has placed renewed emphasis on the need for narrow tailoring
of restrictions on commercial speech. In 44 Liquormart, where retail liquor price advertising was banned to advance an asserted
displayed in bars and taverns where parental supervision of children is to be expected. Moreover, to whatever extent NYSLA is
concerned that children will be harmfully exposed to the Bad Frog labels when wandering without parental supervision around
grocery and convenience stores where beer is sold, that concern could be less intrusively dealt with by placing restrictions on the
permissible locations where the appellant’s products may be displayed within such stores. Or, with the labels permitted, restrictions
might be imposed on placement of the frog illustration on the outside of six-packs or cases, sold in such stores.
NYSLA’s unconstitutional prohibition of Bad Frog’s labels has been in effect since September 1996. The duration of that
prohibition weighs in favor of immediate relief. Despite the duration of the prohibition, if it were preventing the serious impairment
of a state interest, we might well leave it in force while the Authority is afforded a further opportunity to attempt to fashion some
regulation of Bad Frog’s labels that accords with First Amendment requirements. But this case presents no such threat of serious
impairment *102 of state interests. The possibility that some children in supermarkets might see a label depicting a frog displaying
*5. In its summary judgment opinion, however, the District Court declined to retain supplemental jurisdiction over the state law
claims, see 28 U.S.C. § 1367(c)(3), after dismissing all federal claims. See Bad Frog, 973 F.Supp. at 288.
[18] Contrary to the suggestion in the District Court’s preliminary injunction opinion, we think that at least some of Bad Frog’s state
law claims are not barred by the Eleventh Amendment. The jurisdictional limitation recognized in Pennhurst does not apply to an
individual capacity claim seeking damages against a state official, even if the claim is based on state law. See Ying Jing Gan v.
Case 4.3
Cal.,2009.
In re Episcopal Church Cases
45 Cal.4th 467, 198 P.3d 66, 87 Cal.Rptr.3d 275, 09 Cal. Daily Op. Serv. 89, 2009 Daily Journal
D.A.R. 89
Nevertheless, when called on to do so, secular courts must resolve such disputes. We granted review primarily to decide how the
secular courts of this state should resolve disputes over church property.
State courts must not decide questions of religious doctrine; those are for the church to resolve. Accordingly, if resolution of the
property dispute involves a doctrinal dispute, the court must defer to the position of the highest ecclesiastical authority that has
decided the doctrinal point. But to the extent the court can resolve the property dispute without reference to church doctrine, it
FN1. The acronym “SLAPP” stands for “strategic lawsuit against public participation.” (See
Equilon Enterprises v.
Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57 & fn. 1, 124 Cal.Rptr.2d 507, 52 P.3d 685.)
We affirm the judgment of the Court of Appeal, which reached the same conclusions, although not always for the same reasons.
*474 I. FACTS AND PROCEDURAL HISTORY
“The Protestant Episcopal Church in the United States of America …, organized in 1789, was the product of secession of the
the Los Angeles Diocese to organize as a parish. The members’ handwritten application “promise[d] and declare[d] that the said
Parish shall be forever held under, and conform to and be bound by, the Ecclesiastical authority of the Bishop of Los Angeles, and
of his successor in office, the Constitution and Canons of the [Episcopal Church], and the Constitution and Canons of the Diocese
of Los Angeles.” Articles of Incorporation of St. James Parish, filed with the California Secretary of State on March 1, 1949, stated
that the corporation was formed “[t]o establish and maintain a Parish which shall form a constituent part of the Diocese of Los
secured for ownership and use by a Parish, Mission, Congregation, or Institution affiliated with this **72 Church and subject to its
Constitution and Canons.
“Sec. 2. It shall not be lawful for any Vestry, Trustees, or other body authorized by laws of any State or Territory to hold property
for any Diocese, Parish or Congregation, to encumber or alienate any dedicated and consecrated Church or Chapel, or any
Church or Chapel which has been used solely for Divine Service, belonging to the Parish or Congregation which they represent,
Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish,
Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a
part of, and subject to, this Church and its Constitution and Canons.”
Recently, as a result of a doctrinal dispute, St. James Parish disaffiliated itself from the Episcopal Church. It appears that the
dispute leading to the decision to disaffiliate arose after the national church ordained an openly gay man as a bishop in New
74 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
side, claim ownership of the local church building and property on which it stands.
The defendants moved to strike the Los Angeles Diocese’s lawsuit as a SLAPP suit under Code of Civil Procedure section 425.16.
The trial court granted the motion and dismissed the action without leave to amend, finding both that the action was a SLAPP suit
and that the plaintiffs had not established a probability that they would prevail. The court later sustained without leave to amend
425.16 and to address the merits of the church property dispute.
II. DISCUSSION
A. Special Motion to Strike Under Code of Civil Procedure Section 425.16
Before considering the merits of the property dispute, we must decide a preliminary procedural question. Subdivision (b)(1) of
Code of Civil Procedure section 425.16 (section 425.16) provides: “A cause of action against a person arising from any act of that
must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (
City of Cotati v. Cashman
(2002) 29
Cal.4th 69, 76, 124 Cal.Rptr.2d 519, 52 P.3d 695.) Defendants argue that this action arose from their protected activity in first
expressing disagreement with the higher church authorities regarding church governance and then disaffiliating from the general
church.
[2] The Los Angeles Diocese’s complaint did allege facts concerning the reasons defendants decided to disaffiliate from the greater
dispute.
The property dispute is based on the fact that both sides claim ownership of the same property. This dispute, and not any
protected activity, is “the gravamen or principal thrust” of the action. *478(
Martinez v. Metabolife Internat., Inc.
(2003) 113
Cal.App.4th 181, 193, 6 Cal.Rptr.3d 494.) The additional fact that protected activity may lurk in the background-and may explain
why the rift between the parties arose in the first place-does not transform a property dispute into a SLAPP suit. Accordingly, the
trial court erred in treating this as a SLAPP suit subject to section 425.16‘s special motion to dismiss.
1. How California Courts Should Resolve Disputes Over Church Property
[6] Decisions from both this court and the United States Supreme Court have made clear that, when asked to do so, secular courts
666.) Similarly, in its most recent decision involving a church property dispute, the court stated, “There can be little doubt about the
general authority of civil courts to resolve this question. The State has an obvious and legitimate interest in the peaceful resolution
of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively.”
(
Jones v. Wolf, supra,
443 U.S. at p. 602, 99 S.Ct. 3020.) (For cases from this court, see, e.g.,
Rosicrucian Fellow v. Rosicrucian
FN2. As relevant here, the First Amendment to the United States Constitution (First Amendment) provides: “Congress
(1969) 393 U.S. 440, 441, 89 S.Ct. 601, 21 L.Ed.2d 658.)
The high court found invalid, for example, a method used in Georgia whereby “the right to the property previously used by the local
churches was made to turn on a civil court jury decision as to whether the general church abandoned or departed from the tenets
of faith and practice it held at the time the local churches affiliated with it.” (
Presbyterian Church v. Hull Church, supra,
393 U.S. at
p. 441, 89 S.Ct. 601.) The court held **75 that “the civil courts [have]
no
role in determining ecclesiastical questions in the process
725.) “In such cases,” the court explained, “where there is a schism which leads to a separation into distinct and conflicting bodies,
the rights of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary
76 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
FN3. As the high court later explained,
Watson v. Jones, supra,
80 U.S. 679, predated
Erie R. Co. v. Tompkins
(1938)
2372.)
The court adopted this test for a hierarchical church: “[W]henever the questions of discipline, or of faith, or ecclesiastical rule,
custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal
tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” (
Watson v.
FN4. Although the high court originally referred to “neutral principles of law, developed for use in all property disputes”
(
Presbyterian Church v. Hull Church, supra,
393 U.S. at p. 449, 89 S.Ct. 601), it later made clear that such neutral
principles may include application of statutes specifically governing religious property. (
Md. & Va. Churches v. Sharpsburg
Ch., supra,
396 U.S. at p. 367, 90 S.Ct. 499; see also
id.
at p. 370, 90 S.Ct. 499 (conc. opn. of Brennan, J.).) As the high
court explained in
Jones v. Wolf, supra,
443 U.S. at pages 602-603, 99 S.Ct. 3020,“The neutral-principles approach was
court had invalidated Georgia’s method for resolving church property disputes (
Presbyterian Church v. Hull Church, supra,
393
U.S. 440, 89 S.Ct. 601), Georgia adopted a new approach. The high court considered that new approach in
Jones v. Wolf, supra,
443 U.S. 595, 99 S.Ct. 3020. It summarized the issue at the outset: “This case involves a dispute over the ownership of church
property following a schism in a local church affiliated with a hierarchical church organization. The question for decision is whether
civil courts, consistent with the First and Fourteenth Amendments to the Constitution, may resolve the dispute on the basis of
church. In those cases, the Georgia Supreme Court awarded the property to the local church. (
Id.
at pp. 600-601, 99 S.Ct. 3020.)
In the third case, however, involving a dispute within the United Methodist Church, the high court explained that the Georgia
Supreme Court “observed, however,***288 that the constitution of The United Methodist Church, its Book of Discipline, contained
an express trust provision in favor of the general church. On this basis, the church property was **77 awarded to the
denominational church.” (
Ibid.,
fn. omitted.)
FN5. The Georgia Supreme Court had also resolved a dispute over which of two local factions properly represented the
local church. The high court was concerned that the Georgia Supreme Court had not adequately explained its reasoning.
Specifically, the Georgia Supreme Court did not explain whether it simply applied majority rule-which the high court
indicated would be permissible-or whether the decision “involve[d] considerations of religious doctrine and polity”-which
the high court indicated would not be permissible. (
Jones v. Wolf, supra,
443 U.S. at p. 608, 99 S.Ct. 3020.) The high
at p. 604, 99 S.Ct. 3020.)
Despite these potential difficulties, the high court concluded that “the promise of nonentanglement and neutrality inherent in the
neutral-principles approach more than compensates for what will be occasional problems in application. These problems, in
addition, should be gradually ***289 eliminated as recognition is given to the obligation of ‘States, religious organizations, and
individuals [to] structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical
(1991) 230 Cal.App.3d 480, 497-499, 503, 281 Cal.Rptr. 396;
Protestant Episcopal Church v. Barker, supra,
115 Cal.App.3d at p.
615, 171 Cal.Rptr. 541;
Presbytery of Riverside v. Community Church of Palm Springs
(1979) 89 Cal.App.3d 910, 919-923, 152
FN6. In a case not involving a church property dispute, we described “the rule that the state must accept the decision of
appropriate church authorities on … matters [of religious doctrine and internal church governance]” as “the rule of the so–
called church property cases.” (
Catholic Charities of Sacramento, Inc. v. Superior Court
(2004) 32 Cal.4th 527, 541, 10
Cal.Rptr.3d 283, 85 P.3d 67.) As
Jones v. Wolf, supra,
443 U.S. 595, 99 S.Ct. 3020, makes clear, this rule does indeed
FN7. The opinion of
Presbytery of Riverside, supra,
89 Cal.App.3d 910, 152 Cal.Rptr. 854, actually predated
Jones v.
Wolf, supra,
443 U.S. 595, 99 S.Ct. 3020, by a few months, but it considered the discussion of “neutral principles of law”
found in
Presbyterian Church v. Hull Church, supra,
393 U.S. 440, 89 S.Ct. 601. (
Presbytery of Riverside, supra,
at pp.
920-924 & fn. 2, 152 Cal.Rptr. 854.)
[13]
Watson v. Jones, supra,
80 U.S. at page 727, held that secular courts must accept as binding any church adjudication
regarding “questions of discipline, or of faith, or ecclesiastical rule, custom, or law….” As
Jones v. Wolf, supra,
443 U.S. 595, 99
S.Ct. 3020, makes clear, this remains the rule. Secular courts may not decide questions involving church doctrine or faith. But this
rule does not prevent courts from using neutral principles of law to resolve a church property dispute that does not turn on
152 Cal.Rptr. 854.) As did the court in
Protestant Episcopal Church v. Barker, supra,
115 Cal.App.3d at page 614, 171 Cal.Rptr.
541 (and implicitly the more recent Court of Appeal decisions using the neutral principles approach), we find the discussion in
Presbytery of Riverside, supra,
89 Cal.App.3d 910, 152 Cal.Rptr. 854, persuasive. Subject to the proviso that secular courts may
not decide questions of church doctrine, we believe that California courts should use neutral principles of law to decide church
property disputes.
541.)
2. Resolving the Dispute of This Case
St. James Parish holds record title to the property in question. That is the fact that defendants rely on most heavily in claiming
ownership. On the other hand, from the beginning of its existence, St. James Parish promised to be bound by the constitution and
canons of the Episcopal Church. Such commitment is found in the original application to the higher church authorities to *486
organize as a parish and in the articles of incorporation. Canon I.7.4, adopted in 1979, provides that property held by a local parish
“is held in trust” for the general church and the diocese in which the local church is located. The same canon states that the trust
does not limit the authority of the parish over the property “so long as the particular Parish ... remains a part of, and subject to, this
Church and its Constitution and Canons.” Other canons adopted long before St. James Parish existed also contained substantial
restrictions on the local use of church property.
The question before us is, which prevails-the fact that St. James Parish holds record title to the property, or the facts that it is
bound by the constitution and canons of the Episcopal Church and the canons impress a trust in favor of the general church? In