Midway through a civil trial in which a priest is suing the Episcopal bishop who defrocked him, the judge hearing the unusual case suggested yesterday that the dispute might belong in a church court, and he appeared close to throwing it out of Montgomery County Court.

The Rev. David Moyer, rector of the Church of the Good Shepherd in Rosemont, alleges that Bishop Charles E. Bennison Jr., suspended head of the Episcopal Diocese of Pennsylvania, "fraudulently" removed him from the priesthood six years ago without a hearing before diocesan officials. Moyer seeks unspecified damages for loss of employment and mental suffering.

The case could establish a legal precedent allowing clergy in hierarchical religious institutions to sue their superiors in civil court. American courts have a long tradition of not intervening in churches' internal affairs.

Judge Joseph Smyth said the case, already in its third day, raised "important" legal issues regarding separation of church and state, but he decided to allow the trial to proceed.

"I'm just not sure if it belongs in church court purview or civil court purview," said Smyth, who had briefly excused the jury. After retiring to chambers for about seven minutes, he said he had concluded that he should "take [the case] to the finish line."

Smyth's ruminations were in response to a request from Bennison's attorney, Mary Kohart, to throw the case out.

"The concept of a civil court deciding" how a church disciplines its clergy "is problematic under the First Amendment," Kohart told the judge, noting that the 2 million-member Episcopal Church USA has its own legal code, or canons.

Kohart also asserted that Moyer's attorney had failed to prove fraud in his claims that Bennison had deceived him in 2002 by promising him a church trial while secretly planning to defrock him without a trial.

"I mean, aren't you asking me to to interpret the canons?" Smyth asked Moyer's attorney, John Lewis.

Lewis replied that Bennison's defrocking of Moyer had overstepped the bounds of the church canons. "I don't know what could be a more classic example of fraud," Lewis said. Bennison "said he was going to do 'A' and he did 'B.' "

After considering the matter in chambers, Smyth told the court, "I don't know the answer." However, he added, he felt "bound to honor" the decision of his colleague, Montgomery County Court Judge Thomas Branca, who had heard four pretrial hearings on the First Amendment issues before deciding to allow the the case to proceed.

Smyth said he anticipated that "important appellate issues" would flow from

Moyer v. Bennison

.

Earlier in the day, Moyer had sparred on the witness stand with Kohart, often correcting details of her questions and giving lengthy, impassioned replies.

"I was painted as something in the diocese I don't think I was: a troublemaker, a disrespectful man," said Moyer, a church conservative who for 10 years had barred the more liberal Bennison from preaching or making pastoral visits to his parish.

"I'm not a rebel," he said.

"I had no option [but] to protect the people of my parish" from what he said were Bennison's "sometimes heretical" views that homosexuality was morally acceptable or that Jesus might not have risen bodily from the dead.

In March 2002, Bennison suspended Moyer for six months and told him that if he did not allow the bishop to make pastoral visits, Bennison would use a church trial to remove Moyer from the priesthood.

At the end of the suspension, however, Bennison and the diocesan standing committee used a rarely invoked canon and declared that Moyer had "abandoned the communion" of the Episcopal Church, and removed him without a trial.

Moyer has contended that he has no other venue but the civil courts in which to seek a remedy.

He claims a loss of $2,000 in wedding and funeral honorariums as a result of his suspension. Kohart told the court yesterday that he had likely lost only a few hundred dollars.

Contact staff writer David O'Reilly at 215-854-5723 or doreilly@phillynews.com.