Is Hard to Adjudicate
Marc D. Stern
Affiliations between individual congregations and larger denominational
bodies are rooted in shared faith. But that faith gives rise to more than
just a common eschatological vision. It gives rise to temporal relations
involving wealth and power.
So long as the congregation and the denomination remain on the same
religious page, arrangements for the ownership of church property are of no
concern to government beyond general rules for all not-for-profit groups.
But when there is a parting of the ways, someone has to resolve the question
of who owns the property. And just as when couples or partnerships break up,
it is the government that provides the court of last resort.
So who, according to the secular judicial system, owns the property when
congregation and denomination divorce? Is it the congregation, which likely
as not has (over the years) paid for its purchase, construction, and
maintenance? Or is it the denomination, affiliation with which was probably
integral to the congregation’s success?
In some faith traditions—Baptists and Jews being obvious examples—the legal
connections between congregations and denominational bodies are weak. In
such cases, national or regional denominational bodies have no authority
over the congregations and no claims over their property.
For this reason, there was almost no litigation over property ownership
arising from the conservative capture of the Southern Baptist Convention in
the 1980s. Theologically liberal Baptist congregations, unhappy with the
resulting doctrinal shifts, could (and did) simply leave, taking their real
property with them.
That is not to say that resolution of congregational property disputes never
involves religious questions. A congregation bound by its charter to be true
to the Code of Jewish Law may find itself divided, for example, over what
the Code says about women rabbis, or a rabbi in a same-sex relationship. Or
a rabbi may preach a new doctrine and the congregation will split over
whether the doctrine is heretical.
The Supreme Court has held that it is constitutionally acceptable for states
to apply a “majority rules” method of deciding such disputes, unless the
congregation’s founding documents prescribe another method. In no case,
however, can the courts decide a religious question. Often, the court
need only ensure fair voting procedures and make a reasonable determination
of who is a member. (Were dues paid on time? Was notice of a meeting given?)
Sometimes even these cases can be difficult.
The most obvious example of a rigidly hierarchical religious body is the
Roman Catholic Church. In most states, the diocesan bishop holds title to
parish property as a “corporation sole,” which means that property ownership
is not personal to the occupant of the post, but to the office of the
bishop. A few states mandate that Catholic church property be held in
different form. The statutes are products of 19th-century anti-Catholicism.
Mainline Protestant churches are somewhere between. Many of them are
hierarchical—but, given their roots in the Reformation, noticeably less so
than the Catholic church. Most allow formal title to congregational property
to be held by the local churches, but explicitly or implicitly “in trust”
for the larger denomination.
And that brings us to ground zero in the church property wars of our time:
the mainline Protestant denomination known as the Episcopal Church in the
United States of America (ECUSA). For a generation, the church of much of
the country’s WASP elite that is the American branch of the worldwide
Anglican Communion has been embroiled in a series of property disputes,
first over its decision to ordain women and, in this decade, over its
acceptance of same-sex relationships.
In 1979, in the wake of litigation over the property of congregations
departing the denomination over women’s ordination (and building on a then
recent U.S. Supreme Court case), ECUSA adopted a rule called the “Denis
Canon,” which stated explicitly that local Episcopal churches hold their
property in trust for the denomination. The national church claimed that
this canon simply formalized a long-standing practice. Dissenting local
churches claimed it was a clumsy effort to unilaterally change the ownership
of property. The California Supreme Court agreed that the canon could be
In England, courts settle church property disputes by using a “departure
from doctrine rule,” under which the party adhering to the religious
doctrine in effect at the time the property came into the possession of the
church retains it. There is an intuitive appeal to this rule: The people who
paid for the property and the construction of the church contributed to an
institution espousing a certain set of beliefs. Their contributions should
not be converted for the benefit of a different set of beliefs without their
But the rule assumes that church doctrine is ascertainable by courts and
fixed forever, whereas in fact church doctrine encompasses means of
altering doctrine. Recourse to the rule thus freezes doctrine at the
insistence of the state. In the United Sates, “departure from doctrine” was
rejected by the Supreme Court in Watson v. Jones (1872).
Since that decision, the court has authorized states to use either of two
methods of deciding church property cases in hierarchical churches.
Under Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull
Memorial Presbyterian Church (1969), courts are instructed to give
deference to the decision of the hierarchy as to which faction of a local
church constitutes the “true church,” with property ownership awarded
accordingly. (When the question is one of church discipline or governance of
clergy, deference to the decision of the hierarchy is mandatory.) Of course,
under this rule, the true church is almost certain to be the faction
supporting the denomination.
The alternative option, enunciated in 1979 in yet another case involving the
Presbyterian church (Jones v. Wolf), is based on a “neutral
principles” doctrine. This approach determines title by looking at relevant
documents (deeds, church constitutions, rule books and state statutes) and
applying the same principles as would be applied to any other property
dispute, provided that the court need not interpret religious doctrine.
The neutral principles approach has proved increasingly popular. In theory,
it undercuts hierarchical governance, allowing a local church the
opportunity to escape the denomination’s clutches. In practice, it has not
worked that way.
Nationally, the ECUSA cases that have attracted the most attention have
stemmed in large part from the consecration of a non-celibate gay priest, V.
Gene Robinson, as bishop of New Hampshire in 2003. Several African and
later, Latin American, Anglican churches objected to Bishop Robinson’s
election and investiture. Conservative members of Episcopal parishes and
dioceses in the United States joined those objections, creating relations
with the Convocation of Anglicans in North America (CANA) or the Anglican
Church of the Southern Cone (ACSC) under the aegis of foreign Anglican
ECUSA, while insisting that it is open to a multiplicity—or what it calls a
“comprehensiveness”—of beliefs (what that means in practice in this context
is always left unsaid, and, unfortunately, not explained in any of the press
reports I reviewed), insists that it is legally and religiously independent
of the Anglican Communion, and that parishes and dioceses as such cannot
leave the church. For that reason, when individuals leave, even en masse,
they cannot take church property with them.
Although the New York and California courts could have reached this result
by invoking the rule of deference to the hierarchy, they invoked neutral
principles of law.
Was this because that doctrine is applicable to all houses of worship,
whether or not hierarchical? Or because of a democratic dislike of religious
authority? The decisions were unanimous, suggesting that the usual
liberal/conservative divide over gay rights was not at work.
Whatever the case, a Virginia case is now on its way to that state’s Supreme
Court that threatens to unsettle the law by exposing a contradiction in the
The case has not only attracted close attention from the local papers, the
Washington Post and the Washington Times, but also from such
far-flung outlets as the Christian Science Monitor. To no small
degree this is because, as Alan Cooperman and Jacqueline Salmon reported in
the Washington Post January 4, 2007, it involves “two of the
Washington area’s most wealthy, historic and prestigious congregations”
whose “pews are studded with such regulars as Attorney General Alberto
Gonzales and CIA director Porter Goss.”
The roots of the case go back to 1746, when Church of England parishes were
created in two nearby towns, Falls Church and Truro. In the past decade, a
majority of parishioners in both parishes have chosen to transfer their
allegiance from ECUSA to CANA; indeed, the rector of Truro has become a CANA
bishop. However, the congregants of Christ Church (a white clapboard
building in Fairfax whose ownership is caught up in the tangled history of
the two parishes) wish to remain in ECUSA. The essential issue of the case
is whether the dissenting CANA parishes or the ECUSA diocese owns the church
and its valuable real property.
The diocese and the national church have sought to retain Christ Church,
using the Denis Canon to claim that parish property is held in trust for the
national body. Anywhere else, this would be a run-of-the-mill property case.
Virginia, however, has an unusual “division statute,” enacted in 1867 in the
wake of the breakup of several large Protestant denominations (including the
Methodist and Presbyterian churches but not the Episcopalian) into pro- and
anti-slavery Southern and Northern branches before the Civil War. After the
war, it was difficult to speak of “a” denominational body, since there were
now two of them.
Virginia Code § 57-9 provides that “if a division has occurred…in a church
or religious society to which any congregation whose property is held by
trustees is attached,” the congregation shall vote as to which branch of the
fractured society to belong.
Not surprisingly the parties in the Falls Church case disagree over what
sort of division the statute envisions. ECUSA argued before the trial court
that, given the history, the statute applies only when the denomination has
divided itself: it is then appropriate to allow the congregation to decide
which resulting denomination to affiliate with. The break-away churches
contended that ECUSA had effectively split itself off from the Anglican
Communion, and that in any event, the statute applies to all cases in which
a denomination or congregation is divided to the point of splintering.
ECUSA responded that if the statute allows local churches to escape a trust
imposed on their property by church law, it unconstitutionally intrudes on
church governance—a very substantial claim. The case thus exposes one way in
which “neutral principles” undermines hierarchical authority, a possibility
the U.S. Supreme Court appears not to have considered.
On December 19, the Fairfax County trial court issued a decision resolving
all issues in favor of the local churches, such that Christ Church now
belongs to CANA-affiliated Falls Church parish. At the beginning of April,
ECUSA and its Virginia diocese asked the Virginia Supreme Court to review
that decision. As of this writing, no decision on the petition had been
Although both the Washington Post and the Washington Times
repeatedly covered the earlier rounds of the litigation, neither seems to
have reported on the filing of the appeal. It was, however, carefully
explained on the ECUSA website in an article by Rev. Mary Frances
Historically, waves of litigation over church property disputes follow
large-scale social changes and the theological disputes they
engender—slavery in the 19th century, the ordination of women in the late
20th, gay rights in the 21st. (Of course, there are always cases arising
from the apparently insatiable human thirst for power, honor, and wealth
that do not disappear in the religious context.)
In each of these waves of litigation, the essential question has been
whether the true church is represented by traditional or new religious
understandings. Property disputes are surrogates for doctrinal disputes.
Given that progressives are currently in firm control of the central
denominational bodies of the Protestant mainline, they possess, under the
deference doctrine, a substantial advantage in their struggle with believers
adhering to an older, more static, doctrine. Progressives are thus spared
the onerous task of building an entire church from the ground up—a burden
conservatives reorganized in CANA must shoulder everywhere (so far) but
Virginia. As construed by the appellate courts until now, ECUSA’s Denis
Canon leads to the same result as a “neutral principles” approach.
If the Virginia trial court’s ruling is upheld, however, dissenting
Anglicans (nés Episcopalians) such as those affiliated with CANA will have a
major leg up on establishing their church with the blessing of the courts
and the material contributions of long gone Episcopalians. The latter’s
allegiance to the denomination might well have caused them to frown upon
CANA’s secession. Equally, they might have been appalled by their church’s
acceptance of an openly gay bishop.
In fact, there is no way of knowing what long dead donors would want done
with their money in the 21st century—even if that were determinative. No one
asks if the founders of Harvard would approve of every decision the school
makes today. Why ask churches?
The rules of deference or neutral principles spare the courts deep, “on the
doctrinal merits” involvement in intra-church disputes. That is quite a
different thing from saying that application of either rule does not
directly affect the theological life of churches, and not always in ways
that leave the observer confident that justice has been done.
But the alternative, judicial refereeing of theological disputes, would be
far worse, and far less certain to reach a just result.