Open AccessThe Judicial Resolution of Church Property Disputes: Canadian and American Models
Author(s) -
Alvin J. Esau
Publication year - 2003
Publication title -
alberta law review
Language(s) - English
Resource type - Journals
eISSN - 1925-8356
pISSN - 0002-4821
DOI - 10.29173/alr1341
Subject(s) - polity , deference , scope (computer science) , jurisprudence , context (archaeology) , law , property (philosophy) , law and economics , political science , resolution (logic) , settlor , sociology , history , philosophy , epistemology , politics , archaeology , artificial intelligence , computer science , programming language
This article examines the jurisprudence on church property entitlements in the context of membership disputes at Hutterite colonies. The author explores the approaches that Canadian and American courts have taken in dealing with competing claims to church assets held in trust for the use of the members. When faced with allocation issues, Canadian courts have focused on the terms of the trust to determine which faction of the religious association most closely falls within the scope of the trust. By way of contrast, American courts have been more conscious about the separation of church and stale and have employed the following models for adjudicating church property disputes: (I) polity-deference, (2) neutral-principles, and (3) the abstention model. The author concludes that the gap between the Canadian and American approaches is not as wide as it may initially appear.