Supreme Court Affirms the Exclusive Jurisdiction of the Church over Doctrinal and Membership Questions
On Friday, May 21, 2021, the Supreme Court of Canada released their decision in Ethiopian Orthodox Tewahedo Church et al. v. Aga et al. The unanimous decision is a resounding victory for the authority and autonomy of the church over questions of doctrine and membership. Thank the Lord for this positive development!
This case was appealed to the Supreme Court after the Ontario Court of Appeal ruled unanimously that the civil courts could adjudicate a dispute between several former members* and the Ethiopian Orthodox Tewahedo Church regarding their membership status and other matters.
The controversy that gave rise to this case had to do with a theological movement within the church that some members considered heretical. The plaintiffs in this case had participated in a church committee established to investigate this heretical movement and made recommendations to church leaders regarding what to do about it. The church leaders only followed the committee’s recommendations in part. The plaintiffs allegedly continued to agitate for more steps to be taken against the alleged heretics. In the church leaders’ view, the plaintiffs were causing further division and strife. Eventually, their memberships in this particular church (but not the larger denomination) were suspended. It was considered by the church to be a disciplinary step. The church also issued a trespass notice to them, telling them not to attend a specific cathedral until they reconciled with the church.
The members sued their church. They asked the lower court to order the church to reinstate them as members and even asked the secular court to compel the church to take certain steps to implement the committee’s recommendations, including censuring other church members for (alleged) heresy.
The Supreme Court hearing and decision
The church made several important arguments at the Supreme Court. First, because there were no property rights or other recognized legal rights (like property, employment, or contract rights) attached to the plaintiffs’ membership in the church, there was no legal basis for taking the church to court. The court agreed, noting that “Jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate.” (para. 3, 27-32). Second, the issues raised by the case were not appropriate for a civil court to adjudicate, since they involved questions of interpreting and applying the Bible and religious teaching. Third, the remedies sought by the plaintiffs were not appropriate for a civil court to order and would interfere with the Church’s freedom to govern itself as a religious body.
The Court ended up disposing of the case with a particular focus on the question of contracts. The disgruntled members had argued (and the Ontario Court of Appeal had supported this idea) that the bylaws and constitution of the church (similar to a Reformed Church Order) was a legal document, and that membership in the church was a contractual relationship. Since contracts are reviewable by courts, the argument went, the membership in this church and expulsion from it was reviewable. The Supreme Court soundly rejected this argument. They wrote, “In the religious context, even the use of concepts such as authority and duty need not reflect an intention to create legal relations: the parties may be speaking of religious obligations rather than legal ones.” (para. 41). The Court also stated, “More importantly, becoming a member of a religious voluntary association – and even agreeing to be bound by certain rules in that religious voluntary association – does not, without more, evince an objective intention to enter into a legal contract enforceable by the courts.” (para. 52).
ARPA Canada’s intervention
ARPA Canada intervened in this case to provide a Reformed perspective on the relationship between and the limits of the government’s civil jurisdiction and the Church’s spiritual jurisdiction. ARPA argued that a civil matter must be raised in order for a civil court to hear a case. The plaintiffs’ lawyer argued that ecclesiastical rules for discipline and other governance matters would be pointless if they were unenforceable in civil court. ARPA argued in reply that church teaching and rules for discipline and other matters do not need the backing of civil power to be meaningful or effective. As Calvin wrote, “church discipline requires neither violence nor physical force, but is contented with the might of the word of God.”
The Supreme Court was obviously engaged with ARPA Canada’s argument; they even cited ARPA specifically, writing, “courts should not be too quick to characterize religious commitments as legally binding in the first place (as the intervener the Association for Reformed Political Action (ARPA) Canada observed).” (at para. 42).
Implications of the ruling
This ruling is a wonderful restatement of the independent jurisdiction of the church over matters of church discipline (membership in the church) and doctrine (and how to deal with alleged heresy). For this we can be very thankful. However, there are hints in this decision that churches that incorporate might be subject to secular court review in the matter of a dispute between members and their elders. Reformed churches, in particular, must be cautious when it comes to the question of incorporation. When a church incorporates, it agrees to follow certain statutory rules, which grant certain legal rights to their members. This could result in a flipped relationship between elders and members, where members can exercise veto power over elder decisions. This would be contrary to Reformed ecclesiology. We recommend that any new Reformed church that may be instituted, or any current Reformed church that is incorporated, consult with a Christian lawyer who understands Reformed ecclesiology to ensure that any legal arrangements are done to minimize the potential for secular court review of elder decisions. Contact us at [email protected] to discuss further.
For further reading:
You can read the Supreme Court’s Aga decision for yourself.
You can also watch the video recording of the hearing – John Sikkema makes arguments for ARPA at the 56:30 mark.
You can read ARPA’s written submissions to the court.
For more background on this case, see our first article on the Aga case and the important issues it raises.
For further exploration of the relationship between church and state when it comes to church discipline, see our essay “Who Holds the Keys to the Kingdom Of Heaven?” That essay is the first of a series. Part 2 is “Scripture, Not State Law, Instructs How to Do Church Discipline.” Part 3 is “Handing Over the Keys? The Challenge of Church as Legal Entity”.
*Note: although the Church in this case had formed a corporation to hold church property, the church members were not corporation members.
