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July 21, 1970

40TH STREET AND FAIRMOUNT AVENUE CHURCH OF GOD, its Members and its Duly Incorporated Body and Reverend Horace A. Hawes, Individually and other Members Similarly Situated,
Paul STOVER, Overseer of National Body of Church of God, Cleveland, Tennessee and The National Body of the Church of God, Cleveland, Tennessee

Higginbotham, District Judge.

The opinion of the court was delivered by: HIGGINBOTHAM


 More than 25 years ago, Mr. Justice Jackson reminded our nation and the Courts that, "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism [or] religion." *fn1"

 Today, this Court is being requested to decide what should be the orthodoxy and what is fair in the policy making procedures of a religious denomination known as the "National Body of the Church of God, Cleveland, Tennessee" as to the latter's relationship to the 40th Street and Fairmount Avenue Church of God and its members in Philadelphia. In substance, plaintiffs charge that the National Body, prior to 1964, operated two churches, one known as the "White" and the other as the "Colored Work" Church and that when, in 1964, the White and Colored Work Churches merged into a single structure, Negroes, and particularly the members of the 40th Street and Fairmount Avenue Church, then a "Colored Work" Church, were denied the power of effective participation within their denomination. Using a broad unrestrained brush, the plaintiffs here charge the National Body with extraordinary racists' practices, including "that the Church of God at Cleveland, Tennessee, by excluding Negroes from their own policy-making establishments has effectively denied your plaintiffs their constitutional rights under the Fourteenth Amendment and the Fifth Amendment of the United States Constitution," and that the National Body has breached "their freedom of religion under the First Amendment in that they are not given the right of free determination of their religious beliefs and are being denied the use of their property without due process." (Paragraphs 19 and 20, Plaintiffs' Complaint.)

 If I were dealing with an aspect of state action, such as a legislative act or an agency of a state or municipal government, I would be required to ascertain whether the defendants' actions were racially discriminatory. But the First Amendment precludes this Court from making a judgment when those issues are solely intertwined within private religious denominational practices.

 While today plaintiffs charge their National Body with conservative or reactionary racial policies, in other jurisdictions national religious bodies have been challenged for pursuing liberal or racially integrated philosophies. Yet, whether the challenged policy is conservative or liberal, racially restrictive or interracial, the courts cannot adjudicate the orthodoxy of the religious policy and give relief to either group.

 In 1968 the state courts of Georgia were requested to decide a dispute between the parent body of the "Presbyterian Church in the United States" and two local Savannah, Georgia Presbyterian Churches. The local Georgia churches sought independence from the parent body and possession of their Savannah churches because purportedly the national body had started "revolutionary, fundamental unlawful and radical diversion from the Presbyterian faith." The purported radical diversion was the national body's recommendations on "civic, economic, social and political matters," such as its "* * * involvement, through the National Council of Churches for Christ in the Mississippi Delta project, a civil rights movement sponsored by several organizations," and the National Body's questioning of our nation's Vietnam strategy and the bombing of North Vietnam, and the National Body's "ordaining of women as ministers and ruling elders." The Georgia Courts ruled in favor of the local churches granting them the autonomy sought because of the National Church's purported breach of "basic tenets" of the Presbyterian Faith. Presbyterian Church in United States v. Eastern Hts. Presbyterian Church, 224 Ga. 61, 159 S.E. 2d 690 (1968). The United States Supreme Court reversed the Georgia decrees and noted that the logic of earlier cases "leaves the civil courts no role in determining ecclesiastical questions in the process of resolving property disputes." 393 U.S. 440, 89 S. Ct. 601, 605, 21 L. Ed. 2d 658. The Court re-emphasized the holding of Watson v. Jones, 13 Wall. 679, 80 U.S. 679, 20 L. Ed. 666 (1872), where it was held that:

"All who unite themselves to such a body [the general church] do so with an implied consent to [its] government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunal for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organization itself provides for." Presbyterian Church in the United States et al. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church et al., 393 U.S. 440, 446, 89 S. Ct. 601, 604, 21 L. Ed. 2d 658 (1969). (Emphasis added.)

 Similarly, in the instant case, this civil court cannot determine the racial and ecclesiastic questions which have been raised pertaining to the purported breach of orthodoxy and the purported perpetration of racist policies by the National Body of the Church of God, Cleveland, Tennessee.

 For who is entitled to use the 40th Street and Fairmount Avenue Church of God as a place of worship and shepard its membership is the gist of this lawsuit that counsel have enshrined with constitutional and legal arguments.


 Plaintiffs seek an order restraining the defendants from interfering with the conduct of the 40th Street and Fairmount Avenue Church and its alleged minister, the Reverend Horace A. Hawes. Plaintiffs further seek to restrain the defendants or any official of the Commonwealth of Pennsylvania from enforcing a state court judgment until a three-judge federal court can be convened to hear plaintiffs' request for a preliminary injunction. The plaintiffs in this suit are captioned as "40th Street and Fairmount Avenue Church of God, its Members and its Duly incorporated Body and Reverend Horace A. Hawes, Individually, and Others Similarly Situated." The defendants are "The National Body of the Church of God, The General Assembly of the Church of God and one of its Overseers, Paul Stover."

 The verified complaint alleges the following sequence of events:

 In June, 1967 the National Body through its Overseer, Paul Stover, sought to exclude the plaintiff, Reverend Hawes, from conducting services at the 40th Street and Fairmount Avenue Church by attempting to defrock him of his ministry in the Church of God. Reverend Hawes ...

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