Moon v. The Family Federation for World Peace

• Court: District of Columbia Court of Appeals
• Decided: August 25, 2022
• Docket: 20-CV-714 & 20-CV-715
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 20-CV-0714 & 20-CV-0715

HYUN JIN MOON, et al., APPELLANTS,

V.

THE FAMILY FEDERATION FOR WORLD PEACE AND UNIFICATION INTERNATIONAL, et al., APPELLEES.

Appeal from the Superior Court of the District of Columbia (CAB-3721-11)

(Hon. Laura A. Cordero & Hon. Jennifer M. Anderson, Trial Judges)

(Argued June 17, 2021 Decided August 25, 2022)

Michael A. Carvin, with whom Jacob M. Roth, William G. Laxton, Jr., David T. Raimer, Henry W. Asbill, and Veena Viswanatha were on the briefs, for appellant Hyun Jin Moon.

Derek L. Shaffer, with whom William A. Burck, John F. Bash, and JP Kernisan were on the briefs, for appellant UCI.

Francis D. Carter was on the briefs for appellants JinMan Kwak and Youngjun Kim.

Christopher B. Mead was on the briefs for appellant Michael Sommer.

Laura G. Ferguson, with whom James A. Bensfield, Alan I. Horowitz, Brian A. Hill, Michael J. Satin, and Dawn E. Murphy-Johnson were on the brief, for appellees The Family Federation for World Peace and Unification International, The 2

Universal Peace Federation, and The Holy Spirit Association for the Unification of World Christianity (Japan).

G. Edward Powell III, Steffen N. Johnson, and Paul N. Harold filed an amicus curiae brief for Professors Elizabeth A. Clarke, Robert F. Cochran, Jr., Teresa Collett, Carl H. Esbeck, Richard W. Garnett, John D. Inazu, Douglas Laycock, Michael P. Moreland, Robert J. Pushaw, and David A. Skeel in support of appellants.

Eric C. Rassbach and William J. Haun filed an amicus curiae brief for The Jewish Coalition for Religious Liberty and The Becket Fund for Religious Liberty in support of appellants.

Before GLICKMAN and DEAHL, Associate Judges, and BECKER,∗ Associate Judge, Superior Court of the District of Columbia.

DEAHL, Associate Judge: The Reverend Sun Myung Moon founded a religion

known as the Unification Church in 1954. He was the religion’s spiritual leader for

nearly sixty years. In the final years of Rev. Moon’s life, and through the present

day, a religious schism has fractured the Church and its adherents. On one side of

the rift is Rev. Moon’s eldest living son, Dr. Hyun Jin (or Preston) Moon, whom

Rev. Moon had once declared his spiritual successor and the “fourth Adam,”

following the Biblical Adam, Jesus Christ, and Rev. Moon himself. Preston views

the Church as an interfaith movement and wants it to grow as a non-denominational

and decentralized religion, a course Rev. Moon had once charted for it as well.

Preston is also Chairman of the board of directors of a non-profit corporation known

as Unification Church International (“UCI”), which holds considerable assets—once

∗ Sitting by designation pursuant to D.C. Code § 11-707(a). 3

in the ballpark of $1 billion or more—earmarked for advancing the Unification

Church and its principles. On the other side of the divide is Rev. Moon’s widow,

Hak Ja Han Moon, and his younger son, Hyung Jin (or Sean) Moon. Both of them

have claimed to be Rev. Moon’s successor as spiritual leader of the Church and, at

different times, each has led the Family Federation for World Peace and Unification

International. They believe the Family Federation is the institutional embodiment

of the Unification Church, effectively synonymous with it, and that UCI is bound to

support it.

The Family Federation, among others, sued Preston and the rest of UCI’s

board of directors, claiming that UCI’s directors breached their fiduciary duty of

loyalty to the Unification Church in two distinct ways. First, UCI’s directors caused

about half of UCI’s assets to be donated against the wishes of, and to entities

unaffiliated with, the Family Federation, which claims to be the “authoritative

religious entity that directs Unification Churches worldwide.” Second, to facilitate

those donations, the directors amended UCI’s articles of incorporation. They

removed purposes such as “assisting, coordinating, and guiding the activities of

Unification Churches,” and “further[ing] the theology of the Unification Church,”

and left in their place commitments like “support[ing] the understanding and 4

teaching of the theology and principles of the Unification Movement” (emphases

added).

The central issue in this appeal is whether this dispute is one for civil courts

to resolve. The First Amendment generally precludes civil courts from resolving

religious conflicts, in what is sometimes called the religious abstention doctrine.

Whether that doctrine bars the District’s courts from resolving the present dispute,

or whether it instead can be resolved through the application of neutral principles of

law without wading into religious questions, has proven a vexing question. The

Superior Court initially dismissed the underlying suit on religious abstention

grounds, concluding that it could not be resolved without “venturing into religious

questions forbidden by the First Amendment.” Family Fed’n for World Peace &

Unification Int’l v. Hyun Jin Moon (Moon I), 129 A.3d 234, 239 (D.C. 2015). We

reversed, reasoning that dismissal was “premature” at the motion-to-dismiss stage

because it was possible that evidence might be adduced that would permit the dispute

to be resolved through neutral principles of law. Id. at 248-52. On remand, and after

extensive discovery, a newly assigned judge concluded that the conflict could indeed

be resolved by applying neutral legal principles. In the orders now on appeal, the

court granted summary judgment in the Family Federation’s favor and directed that

the UCI directors be removed from their posts and held personally liable to UCI for 5

more than half-a-billion dollars. In doing so, the court described this case as less a

quarrel over church doctrine and more “a struggle for power and money.”

It is certainly that, but this struggle for power and money cannot be resolved

without answering core questions about religious doctrine. And we are precluded

from providing those answers. It is not for the courts to pronounce, as the trial court

did, that the Family Federation is the “authoritative religious entity” that ordains

what does and does not benefit the Unification Church. Nor can we say that UCI’s

directors fundamentally altered its articles of incorporation without first addressing

religious questions that we cannot entertain. UCI’s articles could have vested final

decision-making authority in a particular institutional actor like the Family

Federation, but they have never done that. See Jones v. Wolf, 443 U.S. 595, 603

(1979) (“[R]eligious societies can specify . . . what religious body will determine the

ownership in the event of a schism or doctrinal controversy.”). Absent that, it is not

for us to pass judgment on whose vision of the Unification Church, or Unification

Movement, is more faithful to the purposes UCI was established to advance. That

religious question is outside of this court’s purview.

We therefore reverse and vacate the trial court’s grant of summary judgment

and its subsequent remedies order. 6

I.

The following facts are taken from the summary judgment record. Except

where otherwise noted, they are not disputed.

The Beginnings of the Unification Church and UCI

The Reverend Sun Myung Moon founded the Holy Spirit Association for the

Unification of World Christianity (“HSA”), a religious institution based in Seoul,

South Korea, in 1954. HSA organized congregations, developed religious doctrines

and rituals, published texts, accepted members, and collected tithes and offerings.

Both HSA and the religion it espoused came to be known colloquially as the

“Unification Church,” though there is no legal entity by that name. Adherents of the

religion regard Rev. Moon as a non-divine “messianic” figure. They sometimes

refer to Rev. Moon as the “third Adam,” following the Biblical Adam and Jesus

Christ. Rev. Moon served as the Unification Church’s “spiritual leader” for nearly

sixty years—from its founding until the final years of his life. He and his now-

widow, Hak Ja Han Moon, are sometimes referred to by their followers as the “True

Parents of Humankind.” 7

The Unification Church grew into a global movement encompassing

religious, cultural, educational, media, and commercial enterprises. In addition to

HSA, Rev. Moon and his supporters established religious institutions around the

globe, including appellee Holy Spirit Association for the Unification of World

Christianity (Japan) (“HSA Japan”). 1 They also founded a large number of nonprofit

organizations, such as appellee Universal Peace Federation (“UPF”), 2 and for-profit

corporations such as The Washington Times newspaper, the Tongil Group business

conglomerate, and the seafood distribution company True World Group. Because

Rev. Moon maintained “spiritual and charismatic authority” over the religion, he

held “moral authority” over those organizations. Yet, he did not have legal authority

over them.

1 An expert on behalf of the Family Federation, Michael Mickler, estimated that the Unification Church established a presence in 185 nations by the turn of the twentieth century. 2 Formerly known as the “Interreligious and International Federation for World Peace,” UPF’s Charter described itself as “a global alliance of individuals and organizations guided by universal values and principles and dedicated to building, through service to others, a world of peace, a world in which everyone can live together in freedom, harmony, cooperation and co-prosperity, as one global family.” Like many other organizations under the Unification Church umbrella, UPF is legally independent from the Unification Church; indeed, the words “Unification Church” appear nowhere in its founding documents. 8

In the 1970s, Rev. Moon directed a close associate to establish a nonprofit

corporation called Unification Church International, or UCI, in the District of

Columbia. UCI is not itself a church. But its articles of incorporation, as they

appeared in 1980 until Preston and the UCI directors amended them in 2010, set

forth its core purposes as supporting the Unification Church and its principles. 3 The

1980 articles recognized that Rev. Moon “has provided the inspiration and spiritual

leadership for the founding of [UCI] and is the spiritual leader of the international

Unification Church movement.” In addition, the 1980 articles specified UCI’s five

“organizational and operational purposes”:

1. To serve as an international organization assisting, advising, coordinating, and guiding the activities of Unification Churches organized and operated throughout the world.

2. To promote the worship of God, and to study, understand and teach the Divine Principle,[4] . . . and, through the practical application of the Divine Principle, to achieve the interdenominational, interreligious, and international unification of world Christianity and all other religions.

3 The first version of UCI’s articles of incorporation appeared in 1977, when UCI was first incorporated. The articles were amended in 1980 in order to eliminate reference to an earlier plan for UCI to apply for tax-exempt status. Those revisions are not material to this case. 4 The Divine Principle is one of Rev. Moon’s early theological texts. It elucidates many of the Unification Church’s core beliefs. 9

3. To establish, support and maintain . . . [such] places for the worship of God and for the study, understanding and teaching of the Divine Principle . . . to further the theology of the Unification Church.

4. To publish and disseminate throughout the world . . . publications in order to carry forward the dissemination and understanding of the Divine Principle [or] the unification of world Christianity and all other religions . . . .

5. To sponsor and conduct cultural, educational, religious, and evangelical programs for the purpose of furthering the understanding of the Divine Principle, the unification of world Christianity and other religions, world peace, harmony of all mankind, interfaith understanding between all races, colors and creeds throughout the world, and for such other purposes consistent with the Divine Principle and the purposes of the Corporation.

UCI served primarily as a “funding source” for organizations and projects

Rev. Moon founded or supported. Over the decades, UCI donated funds to a

sweeping array of recipients, such as UPF, the Universal Ballet, the University of

Bridgeport, The Washington Times, a firearms manufacturer, a recording studio and

performing arts center, a martial arts association, and the aforementioned seafood

distribution network. UCI also transferred limited funds to Unification Church

institutions like HSA, but far more money flowed in the opposite direction, with the 10

churches subsidizing UCI, rather than UCI subsidizing them. 5 HSA Japan in

particular transferred around $100 million annually to UCI for many years.

A Shift in the Unification Church and Preston’s Rise Within It

In the mid-1990s, Rev. Moon established the Family Federation for World

Peace and Unification International, intending for it to replace HSA. Through the

Family Federation, Rev. Moon sought to commence “the providential age in which

families may receive salvation that transcends the boundaries of religion, nationality

and race.” In a speech he delivered around that time, Rev. Moon announced that

“[t]he time is coming that we will not need a church. The time for the Unification

Church is passing and a new time for the Family Federation . . . is coming.” In

another speech, which he delivered in 1997, Rev. Moon declared:

Now is the time for all these old church or church-related signs to come down; a new form should emerge. The church era focuses on individual salvation; however, it is time to rise from the individual level of salvation to the family level, because the family is the cornerstone or basic unit for building a nation.

5 In the twelve years before the UCI board elected Preston as its Chairman in 2006, for instance, it is undisputed that less than five percent of UCI’s total disbursements were made to church institutions (such as Holy Spirit Associations, Unification Churches, and the Family Federation). 11

During that ceremony, Rev. Moon took down a banner depicting the Unification

Church’s symbol and buried it. Some of Rev. Moon’s followers have since

interpreted these events as marking the “end of the church era.” 6

In 1998, Rev. Moon publicly announced that Preston had been named vice

president of the Family Federation. The “significance of this inauguration,” Rev.

Moon explained, was that it marked “the era of the fourth Adam” (recall that Rev.

Moon was the “third Adam”). Rev. Moon continued that it was his hope and prayer

that Preston would “become much greater than me, 1,000 times greater, and fulfill

the mission which is yet to be done.” Preston testified that he understood his

“inauguration” to mean that Rev. Moon had recognized him as a “messianic figure”

and selected him as the Reverend’s spiritual heir.

Almost immediately, Rev. Moon began expanding Preston’s leadership role

within the movement. Over the next decade, Preston was appointed to high-ranking

positions within multiple Church-related organizations. For instance, he began

serving as co-chairman of UPF’s governing board. Through UPF, with his father’s

blessing, Preston spearheaded the organization of a number of “global peace

6 Notwithstanding these events, adherents and outsiders would still often refer to the Family Federation as the “Unification Church,” as they had with HSA. 12

festivals”—multi-day events designed to promote world peace, involving speakers,

entertainment, and service projects. Under Preston’s leadership, UPF was “non-

sectarian.” In his words, that approach was “based upon [his] father’s vision,”

“rooted in the providential vision of one family under God” 7 that did not “promote

any one religion.” Preston was also elected by UCI’s board of directors to serve as

UCI’s president and chairman in 2006. Rev. Moon offered his “wholehearted

support” for his son’s election.

Preston Breaks from the Family Federation and Solidifies Control of UCI

In 2008, about a decade after Rev. Moon dubbed him the “fourth Adam,”

Preston’s rise within most of the Church’s institutional entities came to a halt. In a

twenty-five-page letter captioned “Report to Parents,” Preston updated Rev. Moon

and Hak Ja Han on the Unification Church’s state and direction, as he saw them.

Sensing a division in the Church, Preston believed the Church was “at a crossroads.”

He wished “to make [] very clear” where the Church “should be headed and how all

the different organizations should align.” Preston proposed to break down “the walls

of religion” in order to “take on the challenge of a true inter-faith movement that

7 According to Preston, “One Family Under God” was his father’s non- sectarian “vision of humanity,” a vision Preston has since championed. 13

could unite the body of faith through the world . . . rather than trying to protect and

grow the institution of the Unification Church.” Preston wanted two of the

organizations he led, UCI and UPF, to coordinate that vision.

One month after Rev. Moon and Hak Ja Han received the “Report to Parents,”

the Family Federation announced that Preston’s younger brother, Sean Moon, had

been named its new president. Sean did not share Preston’s views about the direction

of the Unification Church; he supported a “denominational” rather than an

“interfaith” vision. In a memorandum purporting to “clarify the structure of all the

worldwide organizations according to True Parents’ special instruction,” 8 Sean

announced to Church leadership that he would be overseeing “[a]ll organizations”

moving forward, acting under the direction of his parents. At a “coronation”

ceremony around this time, Rev. Moon and Hak Ja Han placed a crown on Sean’s

head. Preston has not had any involvement with the Family Federation since.

Preston remained Chairman of UCI’s board of directors, however. And in

2009, he took steps to replace the four other directors with associates who shared his

8 Preston and the other UCI directors dispute that Sean had authority to issue these instructions and also that the memorandum truly reflected his parents’ (the “True Parents”) instructions. 14

view of the Unification Church as a decentralized and interfaith movement. Preston

first called a special meeting of the board in January 2009, at which the four directors

in attendance (with one absent) unanimously elected two of Preston’s close

associates as directors: Richard Perea and appellant Michael Sommer. Immediately

thereafter, then-directors Thomas Walsh and Victor Walters resigned from their

seats on the board. Walsh testified that he did so at the request of Preston’s brother-

in-law and confidante, Jin Hyo Kwak, and only because Walsh mistakenly assumed

Rev. Moon had approved the request. Walters similarly testified that Kwak told him

that resigning would be in his best interests. Kwak disputes asking for Walsh or

Walters to resign.

Several months later, the two directors who had not resigned—Peter Kim and

Douglas Joo—requested another special meeting to nominate new board members

of their own. Neither received a vote. Preston, Sommer, and Perea did not attend

the meeting, depriving the board of a quorum. The following month, Preston,

Sommer, and Perea voted to remove Kim and Joo from UCI’s board. They replaced

them with two of Preston’s brothers-in-law, appellants JinMan Kwak and Youngjun

Kim. 15

In summary, within the year, every director but Preston had been replaced.

The new directors each followed one “school of thought,” sharing Preston’s view of

the Unification Church as a decentralized and interfaith movement. They were

generally hostile to those (like Sean) who viewed the Church as denominational and

saw the Family Federation as its institutional embodiment or central authority. But

the new UCI directors were far from outsiders to the Unification Church. Each of

the new board members had grown up in the Unification Church and had spent many

decades within it; they had each served as Church missionaries and/or run

movement-related businesses or non-profits. Kwak and Youngjun Kim were also

born into families of Rev. Moon’s earliest disciples—sometimes referred to as the

“thirty-six couples”—and Rev. Moon personally named both of them.

Midway through the board’s overhaul in 2009, Rev. Moon summoned Preston

to a meeting in Korea and asked him to “step down from UCI and spend one year

with him.” Preston refused. He testified that, at eighty-nine years of age, his father’s

“condition was much diminished” and that he was “vulnerable” to manipulation by

those who did not share his true vision for the Church. 9 Preston feared that if he

9 Preston and the directors adduced video evidence from around this time that they contend shows “Hak Ja Han and Sean cajoling a semi-conscious Rev. Moon to sign a document naming Sean as ‘representative and heir’” of a contrivance called the “command center of cosmic peace and unity.” They aver that the video 16

stepped down for a year, those loyal to the Family Federation—but heretical to what

he believed the Church to be—“would hijack everything in our movement.” “[T]hey

had the Tongil Foundation; they controlled [HSA] Japan; they controlled the Family

Federation; and they controlled UPF.” Preston’s position in UCI was his last

stronghold of institutional power within the religion and he would not relinquish it.

Rev. Moon met with Preston again later that year, after the board’s overhaul was

complete, and asked Preston to resign from all his positions with Unification Church

affiliates. Preston again refused to leave UCI. He told a group of supporters that

Rev. Moon “turned” on him and is now “on that side.”

Preston Establishes the Global Peace Foundation to Displace UPF

Later in 2009, Sean was appointed chair of UPF, replacing his brother Preston.

That same day, Preston published an open letter on UPF letterhead announcing that

the global peace festivals already on the calendar would go forward not as projects

of UPF, but through “a separate [] foundation” that was “being established for this

purpose.” This new foundation, Preston indicated, would have no “formal or legal

demonstrates that Rev. Moon, at this stage in his life, “was no longer in control of his faculties and was being manipulated by others.” We do not, and need not, assess the extent to which that description of the video is accurate. 17

association with” the Family Federation. Preston wrote that Rev. Moon’s “vision”

had “[a]lways” been UPF’s “guiding ideal,” and that, through the new foundation,

Preston would “remain committed” to achieving that vision of “a God-centered

world in which people of every race, religion, nationality and culture live in harmony

as members of one family under God.”

Soon thereafter, Preston registered the Global Peace Foundation (“GPF”) to

take over the organization of global peace festivals. The Family Federation issued

an announcement opposing the move: “True Parents strongly disapprove of the

corporate registration of GPF . . . and have stated that our church and providential

organizations, and their members, should not take part in or be involved in its

activities.” Notwithstanding that directive, UCI (under Preston’s control) ceased

making contributions to UPF and began funding peace festivals through GPF. Over

the next six-plus years—until the Superior Court issued an injunction prohibiting the

disbursement of additional funds in 2016, discussed below—UCI donated more than

$34 million to GPF, a majority of GPF’s total funding.

The UCI Board Amends Its Articles of Incorporation

In April 2010, with Preston at its helm, UCI’s board of directors voted to

amend the organization’s articles of incorporation. Among other changes, the 18

amendments omitted two references to the "Unification Church," 10 replacing them

with a single reference to "the Unification Movement" (emphasis added). They also

omitted six references to the "Divine Principle," an indisputably central text of the

religion, and replaced them with a single reference to the "theology and principles

of the Unification Movement." The 1980 articles' first-enumerated purpose, "[t]o

serve as an international organization assisting, advising, and guiding the activities

of Unification Churches organized and operated throughout the world," was omitted.

Finally, the amendments officially changed the corporation's name from

"Unification Church International" to "UCI." The following table shows the full

extent of the 2010 amendments:

Amendment to 1980 Articles 2010 Articles (1) Te serve as aB iBteraatieBal 0rgaBizati0B assistiBg, aw;isiBg, cooni}mlt}Bg, and g:y}d}Bg th@ act}v}t}ss of �a:}fi:cat}oa: Ghl¼fchss organlE@d and 013er0:ted thr0:i:tgh0:i:tt the 1.i,terld.

� To promote tee werseip sf Ged, 8Bd ts (b) To promote st:i:tdy, litilderstaBEl 8Bd teaee tee DiviBe interdenominational, Pr}a:c}pl@, th@ B@w rs,.;slat}oa: of God, aa:d, interreligious, and thro:Ygh th@ pract}cal apphcat}oa: of th@ international DiviBe PriBei13le, ts 0:ehie1;e the unification of world interdenominational, interreligious, and

10Relatedly, months before these amendments, Sean at least purported to change the name of the Family Federation to "the Unification Church." The name change was reversed several years later when Hak Ja Han wrested control of the Family Federation from Sean, post-Rev. Moon's death, as discussed below. 19

international unification of world Christianity and all Christianity and all other religions. other religions.

(3) To establish, [promote and] support (c) To promote and and maintain, anywhere in the world, such support the place or places for the worship of God and understanding and for the study, [the] understanding and teaching of the teaching of the Divine Principle as may be theology and principles necessary or desirable, to further the of the Unification theology [and principles] of the Movement. Unification Church [Movement].

(4) To publish and disseminate throughout (d) To publish and the world, newspapers, books, tracts[,] and disseminate throughout other publications [and forms of media] in the world, newspapers, order to carry forward the dissemination books, tracts, other and understanding of the Divine Principle, publications and forms the unification or world Christianity and of media in order to all other religions, or otherwise to further further the purposes of the purposes of the Corporation. the Corporation.

(5) To sponsor [promote] and conduct, (a) To promote and cultural, educational, [cultural, and] conduct educational, religious, and evangelical programs for the cultural, and religious purpose of furthering the understanding of programs for the the Divine Principle, the unification of purpose of furthering world Christianity and other religions, world peace, harmony world peace, harmony of all [hu]mankind, of all humankind, interfaith understanding between [among] interfaith all races, colors and creeds throughout the understanding among world, and for such other purposes all races, colors and consistent with the Divine Principle and creeds throughout the the purposes of the Corporation world. [throughout the world].

According to Preston, these amendments served two purposes: to

“modernize” and “professional[ize]” UCI, and to “make [the articles] more 20

accurate” because “the providential shift that [his] father announced” in the 1990s

“wasn’t captured . . . in the [1980] articles.” The directors maintain that these

amendments did not effect a “fundamental change” to UCI’s corporate purposes

because they “incorporated all the purposes” of the 1980 articles, and simply

reflected organic “changes in the movement” since 1980. The Family Federation

counters that the amendments were meant not to “modernize” UCI at all, but to

fundamentally alter its relationship with the Unification Church. They point to an

email sent by a lawyer who helped draft the amendments, which suggested that the

goal of the amendments was to “stay within a broad ‘world peace and harmony’

framework” while “eliminating the Unification Church, Divine Principle, and most

religious references” from the document. According to the Family Federation, the

real reason the directors sought to dissociate UCI from the institutional Unification

Church was “to pave the way” for a corrupt transfer of around half UCI’s assets to

an unaffiliated (and unaccountable) foundation.

UCI’s Massive Donation to the Kingdom Investments Foundation

Shortly after those amendments, UCI’s agents set up a Swiss foundation

called the Kingdom Investments Foundation (KIF) for the purpose of receiving 21

certain UCI assets. 11 Then-UCI director Perea served as one of KIF’s founding

board members; the other two were “individuals in whom the UCI board could place

confidence.” Next, UCI entered into a donation agreement with KIF, under which

UCI agreed to “irrevocably transfer” certain assets to KIF to advance the

agreement’s prescribed purposes.

The purposes outlined in the donation agreement mirrored the purposes set

forth in UCI’s amended articles. In other words, the donation agreement stated that

KIF was to use the donated assets to support UCI’s own purposes as reflected in its

amended articles, for example, to “promote and support the understanding and

teaching of the theology and principles of the Unification Movement.” KIF’s own

corporate purposes were also similar to UCI’s, although they differed in two ways.

First, they omitted any mention of promoting “international unification of world

11 Although KIF was not created until after the articles were amended, appellees stress that the transfer of UCI assets to an entity like KIF was contemplated several months in advance. Specifically, they point to an email drafted in February 2010, by a lawyer who was working for the directors. That email contemplated “the donation of certain UCI owned real estate assets to a newly created Swiss foundation,” and recommended that “[t]he purposes for which the Swiss foundation is organized should be consistent with, if not identical to, the purposes for which UCI is organized.” Because Swiss law required that KIF not be organized to support a particular religious organization, that congruity could only be achieved by eliminating all references to the Unification Church in UCI’s articles—including the name of the corporation itself. 22

Christianity and all other religions.” And second, they replaced the promotion of

“theology and principles of the Unification Movement” with the promotion of

“ethical principles.” Preston explained that those differences stemmed from an

understanding that “Swiss law made it very clear that [KIF] could not be a religious

entity.”

UCI then transferred to KIF its majority interests in two Seoul-based real

estate developments: “Parc1” and “Central City Limited.” It also transferred to KIF

an interest in a Korean ski resort, a 65% interest in a Korean construction company,

and roughly $2 million in cash holdings. Together these assets’ book value exceeded

$469 million, approximately half of UCI’s total value. 12 UCI’s directors testified

that they effected the transfer to reap tax benefits in connection with Parc1 and

Central City and to secure financing for Parc1’s completion. They also testified that,

due to the Unification Church’s poor reputation, Korean banks might be reluctant to

finance the Parc1 project if those banks perceived that it was affiliated with the

Unification Church. The directors claim to have understood that a barrier to

financing might jeopardize the project’s completion. According to Preston and

12 Perea resigned from UCI’s board of directors and was appointed as one of KIF’s founding board members shortly before UCI approved these transfers. 23

director Kwak, developing the Parc1 plot on Seoul’s Yeouido Island was Rev.

Moon’s “lifelong dream.” Yet, they did not inform Rev. Moon—or the Family

Federation, Hak Ja Han, or Sean—of UCI’s transfer to KIF before making it. 13

The Underlying Lawsuit, Post-Suit Developments, and Prior Appeals

Appellees Family Federation, HSA Japan, and UPF sued UCI’s directors

alleging that they breached their fiduciary duties to UCI. These claims have been

litigated in the District’s courts for over a decade. See generally Family Fed’n for

World Peace & Unification Int’l v. Hyun Jin Moon (Moon I), 129 A.3d 234 (D.C.

2015); Fam. Fed’n for World Peace v. Hyun Jin Moon (Moon II), Nos. 16-CV-881

& 17-CV-23, Mem. Op. & J. (D.C. July 22, 2018). A number of developments have

occurred in the meantime.

13 The Family Federation contends the directors’ explanations for the transfer are implausible. It contends that there “were no near-term tax benefits to UCI” from the transfer, that any long-term benefits were “illusory when balanced against the value of what they gave away,” and that “[p]revious delays associated with the [Parc1] project” had already been resolved prior to the transfer. The Family Federation further suggests that KIF’s prompt sale of the Central City asset for “close to $1 billion,” and the fact that the directors have never accounted for how the proceeds of that sale were used, are further indications that they did not act with any intention to advance the religion or its principles, but instead acted in bad faith. 24

Rev. Moon passed away in September 2012 at the age of ninety-two. His

widow, Hak Ja Han, then laid claim to her husband’s role as spiritual leader of the

Unification Church and stripped Sean of his leadership roles. Sean sued his mother

in federal court and sought a declaration that he was the “worldwide Leader of the

Unification Church and Family Federation.” The court dismissed Sean’s claim on

First Amendment grounds, and the Second Circuit affirmed. See Moon v. Moon,

431 F. Supp. 3d 394, 400 (S.D.N.Y. 2019), aff’d, 833 F. App’x 876 (2d Cir. 2020).

To this day, Sean maintains that he is Rev. Moon’s rightful successor, and he has

created the “Sanctuary Church” to carry out that role.

Returning to this case, the trial court initially dismissed the suit against

Preston and the UCI directors on the grounds that it “could not be decided without

the court’s venturing into religious questions forbidden by the First Amendment.”

Moon I, 129 A.3d at 239. The plaintiffs appealed that decision and we reversed,

concluding that dismissal was premature because, “on its face,” there was nothing

about the case that suggested it would not be “susceptible to resolution by ‘neutral

principles of law’” in a manner that would avoid “any forbidden inquiry into matters

barred by the First Amendment.” Id. at 249. Although we found the dismissal of

plaintiffs’ claims premature, we acknowledged that the case might later need to be

dismissed on First Amendment grounds, but that any such dismissal “should be 25

based on a fuller exposition of the facts underlying each cause of action and not be

decided on the pleadings prior to discovery and further evidentiary presentation by

plaintiffs.” Id.

On remand, the trial court entered “a preliminary injunction restricting UCI’s

disbursement of funds pending trial,” as the Family Federation had requested. Moon

II, Mem. Op. & J. at 2. The directors appealed on First Amendment grounds,

contesting two statements of fact that “formed the basis for the court’s

determination”—that the Family Federation was “the authoritative religious entity

that directs Unification Churches worldwide,” and that “the Divine Principle is the

‘theological textbook’ of the Unification Church.” Id. at 8. We affirmed, but only

after stressing that the “lion’s share of the documents with which the [directors] seek

to substantiate the alleged factual disputes [were] outside the relevant [preliminary

injunction] record.” Id. Our analysis in fact began with 3.5 single-spaced pages

describing (1) just how limited the preliminary injunction record on review was, and

(2) how the directors had failed to raise in the trial court the various factual disputes

they were pressing on appeal. Id. at 2-5. This exhaustive caveat preceded our

ultimate ruling that “at the time the preliminary injunction was litigated, there were

‘no theological questions for the court to resolve.’” Id. at 9 (emphasis added). We

further caveated that the issue should be revisited “if it becomes apparent to the trial 26

court that this dispute does in fact turn on matters of doctrinal interpretation or

church governance.” Id. at 9 n.4.

The litigation returned to the trial court, which ultimately granted summary

judgment in favor of appellees on their breach of fiduciary duty claims. The court

reasoned that there was no genuine dispute that the directors violated their fiduciary

obligations to UCI by (a) “substantially alter[ing] UCI’s corporate purposes” (as

reflected in the 1980 articles) and (b) donating around half of UCI’s assets to KIF

and GPF, two entities that were “unaffiliated with the Unification Church.”

Following a month-long remedies hearing, the court ordered Preston, Sommer,

Kwak, and Youngjun Kim’s removal from UCI’s board and held them jointly and

severally liable to UCI for a $530 million “surcharge.” 14 The directors, together with

UCI, now appeal the summary judgment and remedies orders. They contend that

14 Because Perea had stepped down from UCI’s board before the KIF transfer took place, supra note 12, the trial court granted summary judgment in his favor as to the alleged breach of fiduciary duty related to that transfer. The court also did not impose the surcharge against Perea for that same reason, and for the additional reason that the record did not indicate whether he had personally approved any of the GPF transfers. 27

the trial court’s grant of summary judgment contravened the religious abstention

doctrine rooted in the First Amendment. 15

II.

The First Amendment’s Religion Clauses “severely circumscribe the role that

civil courts may play in the resolution of disputes involving religious organizations.”

Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 353 (D.C. 2005) (citing

Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian

Church, 393 U.S. 440, 449 (1969)). Courts “must be careful” to avoid adjudicating

“church fights that require extensive inquiry into matters of ecclesiastical

cognizance.” Bible Way Church of Our Lord Jesus Christ of Apostolic Faith of

Washington, D.C. v. Beards, 680 A.2d 419, 427 (D.C. 1996) (internal quotation

omitted).

15 While it is not the subject of this appeal, Appellee HSA Japan also sued UCI, raising contract and quasi-contract claims. See Fam. Fed’n for World Peace v. Hyun Jin Moon (Moon I), 129 A.3d 234, 246-47 (D.C. 2015). Those claims remain live in the trial court. The court’s remedies order is thus not a final order or judgment, given the still-pending claims, but we nonetheless have jurisdiction to entertain this appeal under D.C. Code § 11-721(a)(2)(A) (conferring jurisdiction over interlocutory orders granting injunctive relief); see also District of Columbia v. E. Trans-Waste of Md., Inc., 758 A.2d 1, 8 (D.C. 2000) (jurisdiction to review the propriety of injunctive relief extends to review of orders the relief is based on). 28

For example, civil courts are barred from deciding disputes that turn on “the

interpretation of particular church doctrines” or “the importance of those doctrines

to the religion.” Presbyterian Church, 393 U.S. at 450. Likewise, a civil court may

not ordain matters of “church polity or administration,” Meshel, 869 A.2d at 353,

by, for instance, “determin[ing] the religious leader of a religious institution.”

Samuel v. Lakew, 116 A.3d 1252, 1261 (D.C. 2015); see also Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 186 (2012) (religious

bodies must have the “power to decide for themselves, free from state interference,

matters of church government as well as those of faith and doctrine”) (citation

omitted). Court involvement in such disputes would “impermissibly entangle” the

judiciary in “ecclesiastical matters,” Meshel, 869 A.2d at 353, jeopardizing the

values underlying the Religion Clauses and “inhibiting the free development of

religious doctrine.” Presbyterian Church, 393 U.S. at 449. 16

16 Appellees make much of the fact that UCI is not a church, emphasizing that they sued the directors purely in their “secular capacity.” They suggest this court already attached significance to that in Moon I. See 129 A.3d at 249 (“This is not a suit directly against a church, synagogue, or mosque or their immediate leadership. On the contrary, the defendant entity at issue here is a taxable, albeit nonprofit, corporation.”). However, the religious abstention doctrine concerns the “subject- matter of [the] dispute,” not the identity of the parties. Watson v. Jones, 80 U.S. 679, 733 (1871). At its core, it precludes courts from wading into “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” Id. Just as civil courts may not settle a religious succession dispute when it arises between two would-be successors, neither may they ordain the rightful successor where third 29

That is not to say that the First Amendment precludes civil courts from

resolving any dispute with religious implications. See Bible Way Church, 680 A.2d

at 427; United Methodist Church v. White, 571 A.2d 790, 795 (D.C. 1990) (“[T]he

church is not above the law.”). A civil court may, for instance, resolve a property

dispute between factions of a church, so long as it can do so through “neutral

principles of law” without deciding contested matters of church doctrine, polity, or

practice. Moon I, 129 A.3d at 250, 252. Similarly, a court may enforce a contract—

even when one or more of the parties to it is a religious organization—when the

terms of the contract require no incursion into the ecclesiastical domain. See, e.g.,

Meshel, 869 A.2d at 346 (invoking “neutral principles of contract law” to enforce an

arbitration clause, even though the underlying dispute involved a religious

controversy); Second Episcopal Dist. African Methodist Episcopal Church v.

Prioleau, 49 A.3d 812, 817-18 (D.C. 2012) (holding that a civil court can resolve a

dispute over an employment contract between a church and a pastor when the

parties attach some significance to the question (via contract, for instance). We said nothing to the contrary in Moon I, as we merely observed that the allegations in the complaint—again, that case came to us at the motion-to-dismiss stage—painted UCI as “basically operating in a secular capacity,” which could suggest an absence of religious questions in the case. But the evidence that has since been developed makes clear that the question of whether UCI has breached a fiduciary duty of loyalty to the Unification Church is entangled with religious questions about what the Church is, what its core principles are, and who might rightly be called its spiritual (or institutional) leader. 30

breached provision did not “require the court to entangle itself in church doctrine,”

and the pastor was not seeking reinstatement). In determining whether a controversy

is justiciable, we must look past “the label placed on the action” and consider “the

actual issues the court has been asked to decide.” Moon I, 129 A.3d at 249 (quoting

Samuel, 116 A.3d at 1259). Compare Meshel, 869 A.2d at 358 (suit to compel

arbitration appears religious on its face, but sounds in “well-established, neutral

principles of contract law”), with Heard v. Johnson, 810 A.2d 871, 885 (D.C. 2002)

(defamation claim appears secular, but implicates religious practice).

Here, the trial court rejected the directors’ argument that the First Amendment

barred its adjudication of plaintiffs’ breach of fiduciary duty claims. The court then

granted plaintiffs’ motion for summary judgment as to those claims, finding the

directors breached their fiduciary duties as a matter of law both (1) when they

“substantially altered UCI’s corporate purposes” by amending the 1980 articles, and

(2) when they voted to transfer a large portion of UCI’s assets to “entities that are

unaffiliated with the Unification Church.” The directors contend that the trial court’s

ruling on plaintiffs’ fiduciary-duty claims violated the First Amendment. Based on

the record before us, which is far more developed than what was before us in either 31

Moon I or Moon II, we agree. 17 We address the two theories of fiduciary breach in

turn, concluding that the grant of summary judgment on either ground would

improperly intrude on religious questions.

A.

We turn first to the trial court’s judgment that the directors breached their

fiduciary duties to UCI by substantially altering UCI’s articles of incorporation. 18 It

is “a ‘basic principle’ of corporate law ‘that directors are subject to the fundamental

fiduciary duties of loyalty and disinterestedness.’” Moon I, 129 A.3d at 251 (quoting

17 While we were obliged to treat the allegations as true at the motion to dismiss stage in Moon I, the evidence that has now been adduced through discovery has raised a host of material factual disputes inhibiting our ability to resolve this case on neutral principles of law. Among them, as we detail below, are disputes about whether the Unification Church refers to an institutional actor, or instead a set of theological beliefs; whether the Family Federation is truly the authoritative religious entity directing the Unification Church, particularly if it is indeed a set of theological beliefs; whether the Unification Movement is just another term for Unification Church, and one that is perhaps more faithful to Rev. Moon’s vision than what the Family Federation now proselytizes; the centrality of the Divine Principle in that religion; and whether GPF and KIF furthered the goals of the religion, whether it be called the Unification Church or the Unification Movement. 18 The trial court assumed that UCI’s “objects and purposes” could be found in its articles and, therefore, that a substantial change to the articles was also a substantial change to UCI’s corporate purposes. Because neither party contests that assumption, we proceed under the same premise. 32

Anadarko Petroleum Corp. v. Panhandle E. Corp., 545 A.2d 1171, 1174 (Del.

1988)). As we said in Moon I, “[i]t can be a breach of duty to ‘change substantially

the objects and purposes of the corporation.’” 19 Id. at 252 (quoting 7A Fletcher

Cyclopedia of the Law of Corps. § 3718 (2006)).

That said, directors retain the prerogative to update and adapt a corporation’s

objects and purposes to suit changing circumstances; those at the helm of a

corporation are given a wide berth to steer it. Amendments to corporate articles will

not provide viable grounds for suit where they “are designed to enable the

corporation to conduct its authorized business with greater facility, more

beneficially, or more wisely,” 7A Fletcher, supra, at § 3684 (2021) (quoting

Sherman v. Pepin Pickling Co., 41 N.W.2d 571, 577 (Minn. 1950)), or do not

“change the essential character of the business,” id. (quoting Wright v. Minn. Mut.

Life Ins. Co., 193 U.S. 657, 664 (1904)). When evaluating whether a change to

corporate articles constitutes a breach of duty, we do not ask merely whether some

“substantial” change was made, but whether the change abandoned or contradicted

the organization’s “central and well-understood mission.” Moon I, 129 A.3d at 252

19 The directors cast doubt on this proposition, describing it as a “novel legal theory.” But this principle was central to Moon I’s holding, and we as a division are not free to revisit it. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[N]o division of this court will overrule a prior decision of this court.”). 33

(quoting Matter of Manhattan Eye, Ear & Throat Hosp. v. Spitzer, 715 N.Y.S.2d

575, 595 (N.Y. Sup. Ct. 1999)). It is only when directors abandon their corporate

mission, such as by “creat[ing] an entirely different type of corporation . . . to engage

in a business entirely different,” that they may have breached a fiduciary duty

through the amendments alone. 7A Fletcher, supra, at § 3718 (2021).

In Moon I, we illustrated the point: “An organization plainly established to

promote the preservation of African wildlife and acquiring vast funds on that basis

might well be barred from switching its purpose to expenditures on domestic cats

and dogs.” 129 A.3d at 252. A change like that would abandon the organization’s

central mission and put it on an entirely different course. On the other hand, directors

of an organization established to preserve gorillas would not violate their fiduciary

duties simply by broadening that mission to include the preservation of other African

great apes. That would “not change the essential character of the business, but”

merely “authorize[] its extension” or “enlarge[]” its mission. 7A Fletcher, supra, at

§ 3684 (2021) (quoting Wright, 193 U.S. at 664).

The trial court in this case reasoned that neutral principles of law permitted it

to conclude that the directors breached their fiduciary duties in amending UCI’s

articles. The court invoked the common law of contractual interpretation, see Bd. of 34

Dirs., Wash. City Orphan Asylum v. Bd. of Trs., Wash. City Orphan Asylum, 798

A.2d 1068, 1079 n.12 (D.C. 2002), comparing the plain language of the 1980 and

amended articles to conclude that the directors’ amendments “unmoor[ed]” UCI

from its original purposes and that the directors therefore breached their duty. In

reaching that conclusion, the court focused on the following two revisions: (1) the

directors’ decision to nix the term “Unification Church” from the amended articles—

replacing two references to the “Unification Church” with a single reference to the

“Unification Movement”; and (2) the directors’ decision to excise six references to

“the Divine Principle” from the amended articles, leaving in their place only a

command to “support the understanding and teaching of the theology and principles

of the Unification Movement,” and another to “disseminate throughout the world[]

newspapers, books, tracts, [and] other publications and forms of media” to further

UCI’s purposes. Appellees also urge us to focus on a third amendment: (3) the

directors’ decision to strike, in its entirety, the 1980 articles’ first-enumerated

purpose—“assisting, advising, coordinating, and guiding the activities of

Unification Churches . . . throughout the world.” We consider each of these changes

in turn. 35

1. From “Unification Church” to “Unification Movement”

The crux of the trial court’s reasoning was that the amendments “substantially

altered UCI’s corporate purposes by eliminating any obligation to the Unification

Church.” It characterized the 1980 articles’ repeated references to the Unification

Church as “specific denominational references,” which “narrowed the means to

accomplish [UCI’s] corporate purpose.” Replacing multiple references to the

Unification Church with a single reference to the Unification Movement, in the

court’s view, “unmoor[ed] UCI’s purposes from these specific doctrinal ties,”

emphasizing “admittedly broad goals at the expense” of its prior obligations to the

institutional Church. 20

20 The trial court emphasized that these amendments were substantial not only in quality but in quantity, finding that “repeated references” to the Unification Church and Divine Principle in the 1980 articles “carried significant . . . and non- duplicative meaning.” However, neither appellees nor the court explain how those redundancies bore independent and non-duplicative significance. With the exception of the 1980 articles’ call for UCI to promote the “activities of Unification Churches,” see infra part II.A.3, we see no “significant” or “non-duplicative meaning” conveyed by the repeated use of either term. The repetition of certain terms instead seems to be a means of emphasizing them, in the same way that streamlining the articles and cutting the excess fat might just as well do. If the amended articles wrought a substantial change to UCI’s mission, it must be due to their use of distinct terminology, not their failure to repeat that terminology. 36

The problem with that analysis lies in its premise. There is no neutral

principle by which we might arrive at the conclusion that the 1980 articles used the

phrase “Unification Church” as a “specific denominational reference[],” as opposed

to referencing the broader religious movement. There is no dispute that the term

may refer to either or both things. And if it refers to a religion—a set of theological

beliefs—then there is no way to determine whether a change-of-phrase from

“Unification Church” to “Unification Movement” changed the essential character of

UCI’s purposes without a deep dive into religious questions. After all, the directors

maintain that the two terms are “interchangeable labels, both referring to the same

charismatic providential movement” founded by Rev. Moon. In their view, the

semantic change in the amended articles is more faithful to Rev. Moon’s “end of the

church era” pronouncement than the Family Federation’s institutional conception of

the “Unification Church.” Whether the directors are correct on that point is a

theological question that we have neither the expertise nor authority to answer.

To be sure, the term “Unification Church” refers not only to a religion, but

has also colloquially referred to a variety of institutional actors over the years: HSA,

at the time the 1980 articles were drafted; the Family Federation, come the mid-

1990s; and “the Unification Church,” as Sean briefly renamed the Family Federation

in 2009. But upon what neutral principle might we rest the conclusion that the 1980 37

articles gave primacy to an institutional actor if—as the directors claim—that

institutional actor had departed from the religion’s core principles? Nobody has

offered one, and we can discern none. Likewise, how could we reject through neutral

principles the directors’ claims that the Family Federation did in fact depart from the

religion’s core tenets so that fidelity to the religion required breaking from the

institution? 21 It is not possible to do so because that is a deeply religious judgment. 22

To illustrate the point, consider a hypothetical 11th century corporation

devoted to supporting the “Christian church” that, after the Great Schism, amends

its articles to embrace the “Roman Catholic Church.” See Serbian E. Orthodox

Diocese for U.S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 699 (1976)

(describing the Great Schism). A court operating within the First Amendment’s

bounds could never countenance a fiduciary-duty suit by the Patriarch of

21 Indeed, it is particularly unsurprising that UCI would want to dissociate itself from the locution of the “Unification Church” when amending its articles in 2010, as Sean had only months earlier rebranded the Family Federation with that name. If the UCI directors believed their duty was to the Church as a religion, as opposed to that specific institution, it would make sense to semantically disentangle themselves from what was then Sean’s branch of the Church. 22 As for the change to the corporation’s name—from Unification Church International to UCI—appellees concede that for decades the entity had been known as UCI. Given that concession, along with all of the additional reasons above, formally changing the name of the organization to conform to common usage could not conceivably amount to an essential change in the organization’s mission. 38

Constantinople based on the premise that Eastern Orthodoxy (not Roman

Catholicism) represents the true “Christian church.” That would be true even if the

Eastern Orthodox branch had come to be known by its followers as “the Christian

church” prior to the amendment. Yet that is essentially the type of religious intrusion

that the trial court’s order here committed.

Importantly, the 1980 articles could have provided some neutral principle by

which to resolve such disputes, and thereby avoided this judicial impasse. In fact,

the year before the 1980 articles were drafted, the Supreme Court suggested religious

entities do just that, and “specify . . . what religious body will determine the

ownership in the event of a schism or doctrinal controversy.” See Jones, 443 U.S.

at 603. But the articles never did that. UCI was never made subservient to a

particular institutional actor, nor did any institutional actor (except the board itself)

have direct authority to control UCI or settle disputes over its assets.

Absent such a neutral mechanism, to say that the revision to “Unification

Movement” changed UCI’s essential character would require us to adjudicate a

dispute over not only the meaning of religious terms, but a longstanding debate about 39

the very future of the religion. 23 See Presbyterian Church, 393 U.S. at 450 (a civil

court may not decide whether a religious group “substantial[ly] depart[ed] from the

tenets of faith and practice,” if doing so would require the court to “make its own

interpretation of the meaning of church doctrines”) (internal quotations omitted).

Injecting ourselves into that dispute would place the District’s courts in the untenable

position of “inhibiting the free development of religious doctrine.” Id. at 449. That

is not our place.

23 Appellees seek to downplay these stakes, suggesting that so long as the term Unification Church is understood to refer to the church as some institution in the abstract, the court need not identify what that institution is, or determine where spiritual authority lies. Even assuming it were possible to thread that needle for First Amendment purposes, that contradicts how the Family Federation framed its claim. The plaintiffs’ complaint states that “[t]he Family Federation . . . is the current name for the authoritative religious entity that directs Unification Churches Worldwide” and repeatedly asserts that Preston, in his role at UCI, was an agent of the Family Federation. As for the trial court, its preliminary injunction order described how the “Unification Church” simply refers to the Family Federation—the “spiritual successor to HSA” and the “authoritative religious entity at the head of the Unification Church.” The court later reiterated those same descriptions when granting summary judgment in the Family Federation’s favor. Those are far from religiously neutral determinations. There is nothing in the record to suggest that the Family Federation ever exercised legal authority over UCI or the other organs of the religion. Moreover, the directors deny even the Family Federation’s spiritual authority, maintaining that there is no hierarchical authority in the Unification polity at all. Because a civil court may not wade into ecclesiastical controversies to “ascertain the form of governance adopted by the members of [a] religious association,” Samuel, 116 A.3d at 1258 (quoting Jones, 443 U.S. at 605), let alone “determine the religious leader of a religious institution,” id. at 1261, the court was not at liberty to make that determination here. 40

2. From “Divine Principle” to “Theology and Principles of the Unification Movement”

The trial court next focused on the directors’ excision of the term “the Divine

Principle” from the amended articles. Unlike the term “Unification Church,”

there is no dispute as to the meaning of “the Divine Principle.” It refers to a

specific theological text written by Rev. Moon that is central to the religion.

See Meshel, 869 A.2d at 354 (a court may consider religious language where there

is no “material dispute between the parties” as to its meaning). The 1980 articles

had referenced the Divine Principle six times. Each reference was excised, and the

amended articles now articulate a broader purpose “[t]o promote and support the

understanding and teaching of the theology and principles of the Unification

Movement,” and “[t]o publish and disseminate throughout the world,

newspapers, books, tracts, other publications and forms of media in order to

further the purposes of” UCI.

Those amendments enlarge the category of texts that UCI is to promulgate,

but that alone does not necessarily amount to changing the essential character

of UCI, or abandoning its central mission. Indeed, the directors agree that the

Divine Principle remains a central text of the Unification Movement, but point out

that it is only one of Rev. Moon’s numerous writings—sometimes called the

“Eight Great Texts,” substantial portions of which were completed after 1980—

that collectively 41

make up the “canon” of the religion. According to the directors, the broader

language in the amended articles is consistent with the original articles because it

“capture[s] all of Rev. Moon’s teachings, including the Divine Principle.”

Appellees counter that the Divine Principle, specifically, was fundamental to

the original articles, and that replacing that specific term with “vague” references to

“theology and principles” and other “books” and “pamphlets” represents the

abandonment of one of UCI’s central purposes. The flaw with that argument is that

nothing in the amended articles precludes or inhibits UCI from continuing to

promote the Divine Principle. 24 And we cannot say, without treading into religious

questions, that the Divine Principle is so central to the religion that even referring to

it only as a part of a broader body of works amounts to heresy or some other

fundamental shift. Analogously, we could not say that a Christian church dedicated

to teaching “the four gospels” (according to Matthew, Mark, Luke, and John) would

fundamentally alter its mission by expanding its purposes to preaching “the gospel”

more broadly. It is not for a civil court to determine whether a religion is built around

24 Appellees have not suggested that UCI has, in practice, stopped disseminating the Divine Principle in the years since the amendments were enacted. That might be a valid basis for a breach of fiduciary duty claim, but it is not the claim that appellees have raised. 42

a single canonical text. And it is not for us to determine the religious significance

of Rev. Moon’s subsequent works expounding upon the Divine Principle.

3. Striking Any Obligation to Assist or Guide “Unification Churches.”

Finally, appellees urge us to consider the directors’ decision to strike from the

1980 articles the first enumerated purpose of UCI—“assisting, advising,

coordinating, and guiding the activities of Unification Churches . . . throughout the

world.” 25 Appellees argue that the fact that this purpose came first in the 1980

articles means that promoting “brick-and-mortar” churches was UCI’s “primary

purpose,” and that its omission therefore constituted a substantial change.

The directors offer two responses. First, they contend that they did not

abandon this purpose because the amended articles’ purposes subsume assisting

brick-and-mortar churches. In the alternative, they argue that withdrawing support

from brick-and-mortar churches (one of five purposes in the 1980 articles) would

not be a substantial change at all. As a matter of practice, UCI had never devoted

25 The trial court did not focus on this aspect of the directors’ amendments in its order granting summary judgment, though it did reference the change in its remedies order, finding that “the directors understood that the first purpose of the 1980 articles . . . was one of the primary purposes of [UCI],” and that the amendments eliminated that obligation. 43

substantial resources to brick-and-mortar churches in the decades when it operated

under the 1980 articles. For instance, in the thirteen years before Preston became

President of UCI—operating under his predecessor, Douglas D.M. Joo, from 1992

to 2005—it is undisputed that UCI directed less than five percent of its

disbursements to traditional church entities. Appellees also do not dispute that UCI

was compliant with its obligations under the 1980 articles during that stretch.

Once again, we cannot conclude that excising this first purpose of the 1980

articles, whether or not it was fairly subsumed by other purposes in the revised

articles, impermissibly changed the essential character of UCI. Determining

whether eliminating the articles’ first-enumerated purpose was a substantial change

would require us to measure the relative significance of UCI’s other purposes—

including such goals as promoting “the worship of God,” supporting an

“understanding and teaching of the Divine Principle,” and achieving “the

interdenominational, interreligious, and international unification of world

Christianity and all other religions.” That brings us right back to the bar on extensive

inquiries into religious doctrine. See, e.g., Bible Way Church, 680 A.2d at 427.

There is no neutral principle that allows us to say that support for brick-and-mortar

churches was so essential to UCI’s purposes, contrary to its own historic practices 44

and Rev. Moon’s apparent aspiration to move beyond them, that pivoting away from

them marked an essential change in its mission.

B.

The trial court also granted summary judgment for appellees on their claim

that the directors breached their fiduciary duties when they voted to transfer around

half of UCI’s assets to KIF and GPF. Those two entities were not affiliated with the

Unification Church, as appellees contend they had to be under the 1980 articles. 26

Although the court acknowledged that UCI had a history of making donations to

“organizations not officially affiliated with the Unification Church,” it distinguished

those historical donations on two grounds: (1) that the bulk of those donations were

either directly approved by Rev. Moon, or were made to entities that he had

established or was affiliated with; and (2) that even if UCI had sometimes donated

to organizations that were not affiliated with the Church, the donations to KIF and

GPF were different because they were made expressly because those organizations

26 The trial court assumed the donations had to comply with UCI’s corporate purposes as expressed in the 1980 articles, rather than post-2010 amendments. It is not obvious that is the correct approach, but the directors do not cast doubt upon that assumption, so we too will adopt it. It is ultimately an inconsequential point because, for the reasons above, we could not evaluate the KIF or GPF donations’ compatibility with either version of the articles in a manner that would be consistent with the First Amendment. 45

were unaffiliated. Neither distinction is persuasive. We conclude that the trial court

exceeded its authority under the First Amendment when it found that the 1980

articles barred the transfers to GPF and KIF, and that the directors breached their

fiduciary duties by effecting those transfers.

As an initial matter, both the trial court and the appellees struggle in vain to

differentiate the transfers to KIF and GPF from UCI’s historical donations to other

unaffiliated organizations. 27 Indeed, UCI’s history appears to refute the notion that

the articles ever prohibited donations to entities unaffiliated with the Unification

Church. Long before the directors held their posts, UCI donated tens if not

hundreds-of-millions of dollars to a number of unaffiliated, nonsectarian entities,

including the Universal Ballet, the University of Bridgeport, and The Washington

Times. The Universal Ballet disclaimed any “affiliation with . . . the Unification

Church,” and calls itself “non-sectarian.” The University of Bridgeport had no

affiliation either, and it too describes itself as “secular,” “independent,” and

27 If appellees could show—in a manner consistent with the First Amendment—that the donations to KIF and GPF were fundamentally different than UCI’s previous donations, that might be persuasive evidence that the transfers violated UCI’s original purposes. But the converse is also true, as it stands to reason that if “a long-standing pattern or practice of corporate behavior may give rise to a by-law” where one did not exist, see Moon I, 129 A.3d at 251 (citing Nat’l Confed. of Am. Ethnic Grps. v. Genys, 457 A.2d 395, 399 (D.C. 1983)), such a pattern or practice could also inform how to best interpret the bylaws that do exist. 46

“nonsectarian.” The “general-purpose” conservative newspaper, The Washington

Times, likewise operated independently from the Unification Church and espoused

no religious ideals. The record also includes evidence of other donations to secular

entities, such as a private school in New York attended by Rev. Moon’s children, a

martial arts organization, several anti-communist organizations, and a firearms

manufacturer. It additionally shows a donation to Rev. Jerry Falwell’s ministry.

Indeed, as the directors point out, there is no language in even UPF’s charter to

suggest that it had any legal affiliation with the Church that GPF did not.

Appellees concede that those prior donations to unaffiliated organizations

were consistent with UCI’s corporate purposes. But they attempt to distinguish

those transfers, pointing out that “[a]lmost all of the organizations that UCI

historically supported were founded by Rev. Moon and/or Mrs. Moon,” whereas the

transfers to KIF and GPF were made in defiance of Rev. Moon’s wishes, because he

did not “support[] the creation of and donations to” those organizations. That

reasoning exposes the true nature of appellees’ claim, the essence of which the trial

court adopted: donations approved by Rev. Moon comport with UCI’s mission,

whereas those approved by Preston (and his co-directors) do not. 28

28 If Rev. Moon’s approval was enough to insulate a given donation from further scrutiny for compliance with the articles, then we see no reason why the 47

We cannot adopt that reasoning. For one thing, it would require us to decree

that the Unification Church is a hierarchical organization, in which the judgments of

church leaders carry dispositive weight in church disputes. That is a contested issue

of church polity. See Samuel, 116 A.3d at 1259 (finding, under analogous facts, that

making such a determination “would entail an impermissible inquiry into ‘church

polity’” (quoting Jones, 443 U.S. at 605)). Moreover, even if we assume that the

Unification Church is a charismatic religious movement that places a single

individual atop its hierarchy, the First Amendment bars us from resolving a dispute

as to the identity of that leader. Id. at 1261 (“[T]he First Amendment does not permit

a civil court to determine the religious leader of a religious institution.”). Here, the

directors have offered testimony that Rev. Moon’s health was fading and that—at

the time of the key events in this case—he was being manipulated by others, contrary

to his vision for the religion’s future. Preston, on the other hand, had been dubbed

the “fourth Adam” by his father. He was elected president and chairman of UCI’s

board of directors. Several of his co-directors testified that, in their view, Preston

was the true leader of the religion—even before Rev. Moon’s death. We can discern

no neutral principle to resolve a dispute as to which party had “spiritual and

approval of his rightful successor would not do likewise. That brings the succession fight to the forefront of this dispute, contrary to appellees’ protests that it is immaterial to it. 48

charismatic authority” over the Church and its affiliates at the time the relevant

transfers were approved. See Moon, 431 F. Supp. 3d at 406 (collecting cases to

support the proposition that “intrachurch succession disputes . . . fall squarely within

the nonjusticiable category”).

But the failure to distinguish the transfers to GPF and KIF from UCI’s

historical donations is not the only basis on which we depart from the trial court’s

reasoning. Missing from the court’s analysis into those transactions’ compatibility

with UCI’s corporate purposes is any mention of the substance of those purposes.

Per the 1980 articles, those purposes include promoting “the worship of God,”

achieving the “unification of world Christianity and all other religions,” and

sponsoring cultural, educational, and religious programs “for the purpose of

furthering the understanding of the Divine Principle.” UCI’s stated purposes are

plainly broader than merely supporting institutions that are formally affiliated with

the Church. And the directors contend that the transfers to GPF were consistent with

UCI’s purposes because GPF’s “peace-building work fulfilled Rev. Moon’s

providential vision” for the movement, and that the transfer to KIF was consistent

with UCI’s purposes because it was essential to secure project financing for the

Parc1 real estate development, which was necessary to achieve Rev. Moon’s

“lifelong dream” of developing that plot. The directors further emphasize that KIF 49

was contractually obligated to support “the theology and principles of the

Unification Movement” because the donation agreement contained express language

to that end.

The court did not consider the directors’ argument that the articles should be

interpreted to embody a more “providential vision” of the Church. Nor could it have

rejected that argument based on neutral legal principles. To determine which party

was correct about the meaning of the 1980 articles—which are steeped in overtly

religious language—the court would have needed to adjudicate longstanding debates

over the direction of the Church, including whether it is best understood as a

denominational institution or an interfaith movement. Such determinations are not

permissible under the First Amendment. In short, the trial court erred in finding that

UCI’s donations to KIF and GPF ran afoul of UCI’s corporate purposes.

III.

Appellants ask us to not only reverse the entry of summary judgment against

them, but to direct the trial court to dismiss the breach of fiduciary duty claim

altogether. One wrinkle precludes us from doing that. While we agree that the two

theories of fiduciary breach embraced by the trial court are non-justiciable, there

remains a third theory advanced by the appellees that the trial court did not address: 50

that the directors engaged in self-dealing. The complaint averred, as a subpart of the

breach of fiduciary duty claim, that Preston and the directors engaged “in a scheme

of self-dealing designed to divert corporate assets to the personal pursuits of

Preston.” That theory may yet have some legs, provided there is evidence to support

it.

While religious abstention is a robust doctrine that provides substantial

protections to religious organizations’ autonomy within the religious sphere, the

Supreme Court has strongly suggested that there is a “fraud or collusion” “exception

to the general rule of non-interference,” under which a civil court may decide a

facially ecclesiastical dispute when religious figures “act in bad faith for secular

purposes.” Heard, 810 A.2d at 881 (citing Milivojevich, 426 U.S. at 713). 29 Under

that potential exception, a civil court may have the authority to exercise “marginal”

review, even where a dispute implicates ecclesiastical matters. Id. This “fraud or

collusion” exception, “if [it] exists, . . . would apply where a religious entity” or

figurehead “engaged in a bad faith attempt to conceal a secular act behind a religious

smokescreen.” Moon v. Moon, 833 F. App’x at 880. Although it would surely be

29 The Supreme Court has never definitively endorsed the exception. See Hutchinson v. Thomas, 789 F.2d 392, 395 (6th Cir. 1986), cert. denied, 479 U.S. 885 (1986); Moon v. Moon, 833 F. App’x at 880, cert. denied, 2021 WL 2405175 (U.S. June 14, 2021). Nor, for that matter, have we. See Heard, 810 A.2d at 881. 51

difficult to disentangle a charge of self-dealing from religious questions when

brought against somebody with a claim to messianic status, we need not confront

that difficulty today.

The parties have not briefed the legal issue of whether there is a fraud or

corruption exception to the religious abstention doctrine, nor have they explained

what evidence (or lack thereof) underlies the self-dealing claim, nor have they even

discussed whether that claim remains live at this stage of the proceedings in the trial

court. Those are all matters we leave the trial court to address in the first instance

on remand.

IV.

The trial court erred in awarding appellees summary judgment on their breach

of fiduciary duty claims. Mistakenly holding that it could adjudicate those claims

via neutral principles of law, the court repeatedly resolved ecclesiastical disputes.

We therefore reverse and vacate the trial court’s grant of summary judgment, and

vacate its ensuing remedies order. We stop short of directing summary judgment in

the directors’ favor on the fiduciary duty claims, however. Appellees have alleged

what amounts to a claim of fraud and/or collusion, which may yet be a justiciable 52

claim that does not require delving into religious questions, and the trial court may

consider it on remand if appropriate.

The orders of the trial court are reversed. We remand the case for further

proceedings consistent with this opinion.

So ordered.