Issue 8

Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions

Over the past decade, the bankruptcy filings of Roman Catholic dioceses have brought the previously underexamined possibility of church bankruptcies to the attention of scholars. At the same time, a large and growing number of less visible churches are resorting to chapter 11 reorganization, often as a last-ditch effort to keep faith communities together or to preserve ownership interests in the physical churches that serve as the anchors for those communities. However, the case law and scholarly literature treating the religious liberty implications of subjecting churches or other religious organizations to the provisions of the Bankruptcy Code remain limited in scope. This Note considers an important tool available to parties in interest in a chapter 11 reorganization: appointing a trustee to replace the existing management of a debtor. This mechanism allows for the replacement of bad actors in the leadership of a business so that the going concern value of the debtor’s enterprise can be maximized to the benefit of creditors. Given the corporate governance concerns that attend many church bankruptcies, this represents a powerful and useful tool for implementing more effective internal controls, building credibility with creditors, and effecting reorganizations.

However, when the business in question is a religious institution, the appointment of a trustee raises concerns relating to the religious liberty interests of the debtor. I conclude that these concerns should not bar the appointment of a trustee in the chapter 11 reorganization of a religious institution. In Part I, I will describe the causes of church bankruptcies and the functioning of the chapter 11 trustee as a potential remedy in those cases. In Part II, I will articulate the potential bases of religious liberty objections to such an appointment. In Part III, I will sketch the contours of how the scope of a trustee’s authority could be cabined so as to prevent infringing on the religious liberty interests of the debtor.

Changing the Vocabulary of the Vagueness Doctrine

The usual “tests” for vagueness—fair notice to ordinary citizens from the language of the statute and fear of arbitrary enforcement—provide superficial explanations for applications of the vagueness doctrine. We believe that the Robinson conduct requirement and the Bouie–Shuttlesworth correlation requirement have significantly greater explanatory power in supporting a conclusion that a statute is or is not unconstitutionally vague. Attention to these principles can provide meaningful insight into whether a statute has transgressed acceptable vagueness limits. They are not, of course, mechanical or coldly analytical. Judgment is still required, in part to take into account countervailing factors such as the necessity of the chosen means to accomplishment of the legislative objective and the legitimacy and seriousness of that objective. And additional considerations beyond the four corners of the vagueness doctrine, however it is explained, will often be determinative of the outcome. In any event, we submit, explicit consideration of the two principles we have advanced will give much more fulsome content to the vagueness doctrine than is revealed by the traditional manner in which it is described. Thinking about vagueness in this manner may not change outcomes or make hard cases any easier, but it will assist deliberation and will provide a more convincing rationale once a conclusion is reached.

The vagueness doctrine serves important rhetorical purposes. It is embedded in more than a century of litigation that for the most part has led to defensible results. Our claim is that analytical clarity can be achieved and that more meaningful exposition will occur if the traditional analysis is employed with the conduct requirement of Robinson and the correlation requirement of Bouie more transparently in mind. The rest we would leave as it is.

Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor

Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, on the other. The concepts have assumed these polarized and competing public associations through their practical interactions over the twentieth century, often serving as both the targets and the weapons of charges of judicial activism. However, the Supreme Court’s recent opinions in United States v. Windsor and Bond v. United States, read together, reveal an attempt to reconcile these two seemingly disparate constitutional themes. Specifically, Justice Kennedy’s writings in both cases suggest an ironic conservative salvaging of the fundamental interest strand of the equal protection doctrine. In this modern take on the doctrine that first gained popularity under the more liberal Warren and Burger Courts but attracted little attention since, an individual’s fundamental interest in the rights created by her state within its reserved powers is fused with equal protection concerns to motivate a heightened tier of judicial scrutiny. This Note argues that such “stereoscopic synergy” may serve as a value-free, representation-reinforcing judicial mechanism: It provides a framework by which courts may correct defaults in the political process’s protection of minorities’ interests when federal law discriminately recognizes validly enacted state regulations based on the suspect or quasi-suspect class of the burdened individuals. This same analysis can be applied to advance causes championed on opposite ends of the political spectrum, such as medical marijuana use and private gun ownership. As such, this conservative twist on a historically liberal concept disrupts the popular culture’s perception of federalism and substantive due process-equal protection as necessarily conflicting doctrines. 

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