Left with No Name: How Government Action in Intra-Church Trademark Disputes Violates the Free Exercise Clause of the First Amendment

By Nicholson, Mary Kate | Washington and Lee Law Review, Summer 2019 | Go to article overview

Left with No Name: How Government Action in Intra-Church Trademark Disputes Violates the Free Exercise Clause of the First Amendment


Nicholson, Mary Kate, Washington and Lee Law Review


I. Introduction

A church is made up of "many members, yet [is] one body."1 Unfortunately, the "members" do not always agree on how best to direct the "body."2 Churches have an illustrious history of internal disagreements over religious doctrine.3 In recent decades, the disputes shifted towards emerging social issues, such as the ordination of women and same-sex sex marriage.4 As society shifts its opinions on such issues, so do members of church congregations.

In February 2019, the United Methodist Church-the second largest Protestant church in the United States-voted to reject a proposal that would allow the ordination and marriage of LGBTQ individuals.5 The same debate occurred in the Presbyterian and Episcopalian churches and led to countless lawsuits when the churches approved inclusive measures concerning the LGBTQ population.6 In a national church with millions of members, such social polity decisions can fracture a church beyond repair.7

A church divided over social issues often sees an outflux of members and the creation of complex property disputes.8 When churches are divided, congregations often split along polity lines, with one sect remaining loyal to the national church, and one sect leaving the denomination.9 Almost immediately, disputes arise over ownership of church property-most commonly the building.10

Just as important to a congregation, however, is the church's name. As organizations dependent on congregant tithes and community reputation, churches often trademark their names and symbols to safeguard their goodwill.11 The fight over exclusive use to a church's name is complex and full of uncertainty. This complexity is illustrated through a 2017 lawsuit involving a schism in the Episcopal Church.12

The Episcopal Church's presence in South Carolina dates back to 1789.13 The current form of the Lower Diocese of South Carolina was incorporated in 1973 with the purpose "to continue an Episcopal Diocese under the Constitution and Canons of [t]he Episcopal Church."14 The national Episcopal Church's move to ordain those identifying as LGBTQ caused a nationwide schism,15 and resulted in the Lower Diocese of South Carolina breaking away from the national Episcopal Church and joining the Anglican Church.16 The dissociated Lower Diocese filed suit in 2013 seeking a declaration that it was "the true Diocese in the lower part of South Carolina, [and] that all property at issue belonged to that faction."17

Under the United States Supreme Court's neutral principles framework, courts may not undertake judicial review of ecclesiastical matters, including disputes resulting from differences in doctrine, polity, or governance.18 In the 2017 Episcopal Church decision, the South Carolina Supreme Court held that the claim at issue concerned ecclesiastical matters of church polity and governance, and, thus, under the neutral principles approach gave deference to the national Episcopal Church.19 The decision meant that the disassociated Diocese lost access to real property previously held by the local church for generations.20

In the same decision, the South Carolina Supreme Court held that the dissociated Diocese's state trademarks, which included reference to "Episcopal" in the Lower Diocese's name, were to be cancelled in favor of the national Episcopal Church's federal marks.21 The South Carolina Supreme Court made this decision without reference to the U.S. Supreme Court's neutral principles approach.22 In the end, the churches were left in uncertain territory, as the South Carolina Supreme Court's order was virtually unenforceable without further lower court action.23 The South Carolina court removed itself from the real property dispute, yet felt it proper to adjudicate the trademark claim.24 Why the difference in approach? The difference likely stems from the Supreme Court's lack of jurisprudence on the intersection between free exercise and trademarks.25

The United States was founded in part on the principle of freedom of religion-free from religious preference-where citizens were free to practice any religion. …

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