Spring 2009, Vol. 12, No. 1

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Table of Contents

From the Editor:
Our Excellent ARIS Adventure

The Madoff Disgrace

Keeping the Faith-Based

Dolan Does Gotham

No Friends on the Right

A Buddhist Bishop in the UP

Breaking Up Is Hard to Adjudicate

Praise God and Pass the Diapers

Haggard Agonistes


New books

Breaking Up Is Hard to Adjudicate
by 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 applied retroactively.

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 assent.

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 bishops.

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 two rules.

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 announced.

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 Schjonberg.

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.


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