Response or Comment
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Every year, a number of church property disputes come before the civil courts. These controversies arise from schisms, political quarrels within churches, unions or mergers between churches, appointment of clergy, and expulsion of members. Each of these disputes will, in the end, touch upon questions of right to use or right to prescribe use of church property. Traditionally states have been interested in settling these quarrels because of their desire to have title and ownership of land settled and secure. However, courts have always been wary of becoming embroiled in these church property disputes. Until recently, this reluctance stemmed more from the belief that church and state should be separate than from any specific dictates of the establishment or free exercise clauses of the first amendment. In 1952 the Supreme Court, in the landmark decision of St. Nicholas Cathcdral v. Kedroff - introduced new constitutional dimensions into this area of the law. Although the litigation dragged on until 1960, the various problems raised by the decision in Kedroff have yet to be successfully resolved. Among these problems are: What criteria of ownership are relevant to settlement of church property disputes? How can courts avoid involvement in theological controversies and at the same time successfully deal with property disputes? To what extent do the constitutional guarantee of freedom of exercise of religion and its correlative prohibition of an establishment of religion impinge upon the various methods courts can use to settle these disputes? Because these questions have been raised and not answered, an area of law which was relatively clear and settled before Kedroff has become shrouded in uncertainty.
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