by Earlier this week, the Virginia Supreme Court heard argument in Protestant Episcopal Church v. Truro Church, et. al., one of many church property disputes currently going on in the United States. Here is a report of the Virginia argument. Several northern Virginia congregations (including the historic and very large Falls Church) voted to leave the American Episcopal Church and join an African Anglican diocese (both part of the Anglican communion). The dispute (as in many of the disputes nationwide) was over the denomination’s ordination of actively gay clergy in particular and over biblical authority in general.
The Virginia trial court applied a nineteenth-century state statute (Virginia Code Sec. 57-9) which provides that when property is held in trust for a congregation and there is a church “division,” the congregation can vote to determine with which of the “branch[es]” it and the property will go. The Virginia congregations won at the trial level. Issues on appeal concern both whether the statute was properly applied and whether it is constitutional.
The United States Supreme Court long ago rejected England’s “departure from doctrine” rule, under which courts would give church property to the group that remained true to church doctrine. Currently, under Jones v. Wolf (1979), the Court allows states to defer to church hierarchies or apply neutral principles of law in determining church property ownership. “[A] State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters…” 433 U.S. 595, 602 (emphasis in original).
The question in Virginia will be whether the statute applies neutral principles. Some language in Wolf suggests that states must defer to hierarchical church canons, but other language suggests that such canons are not binding unless the congregation agrees. Id. at 606. Shortly after Wolf, the Episcopal Church unilaterally adopted the Dennis Canon giving itself a beneficial ownership in all Episcopal church property. One question in the Virginia case is whether the court will enforce this canon, when under Virginia law a secular organization could not take similar action. My guess is that the Virginia Supreme Court will uphold the Virginia statute as applied by the trial court and that the United States Supreme Court will allow the decision to stand.
In my view, when churches make ownership clear in deeds and titles, courts should follow those deeds and titles. The church has made its choice and courts should respect it. Plenty of churches make ownership clear. The Catholic Church and the Mormon Church place title in the denomination. Baptist and other congregational churches place title in the name of the congregation. When churches do not make ownership clear, the state has to make a choice between the hierarchy and the congregation. In such cases, as between a default rule of hierarchical deference and one of congregational deference, courts should go with the congregation. Courts should allow local control of issues that most affect local individuals. Members of the congregation are more likely to understand their needs than the hierarchy. If the members of the local congregation have not clearly ceded authority to the denomination, courts should leave control with them. This position is based both on the values of democracy and of local control of local issues. The process of debate and voting within a congregation, coupled with the necessity of the congregational members living with the result, are likely to lead to the wisest decisions. My guess is that generally when a church hierarchy imposes its will on a local congregation, the result is disastrous for the congregation. People who can’t vote with ballots are likely to vote with their feet.
For a video tape of Pepperdine’s recent conference on this issue, see “Who Owns the Lord’s House?” Speakers included Kent Greenawalt, Ken Starr, Shelley Saxer, Alan Brownstein, and Leslie Griffin, as well as Steffen Johnson of Winston & Strawn (DC), who argued for the congregations in the Virginia case, and Jeremy Rosen of Horvitz & Levy (LA), who argued (and won) for The Episcopal Church in a similar California Supreme Court case last year.
For the best summary of the current state of the law in this area, see Jeff Hassler’s note at: 35 Pepp. L. Rev. 399.
I would point out that my article, published in 2008, is already out of date. Most significantly, it doesn’t cover subsequent major developments in California (opinion here) and especially South Carolina (opinion here.
Hmm. Am I wrong to detect a bit of a Baptist orientation in Bob’s preferred, congregation-oriented solution to the problem?
Which is not to imply that Bob’s solution isn’t the best one. For myself, I’ve never been able to develop a definite view on this question, and I’ve sometimes regretted that the “departure from doctrine” approach is always dismissed so peremptorily. Here’s a question that probably has an answer, but I’m too ignorant of trust and property law to know what it is. Suppose I donate a building to the local Libertarian Society “so long as the Society remains true to the principles of John Stuart Mill.” Later the Society actively embraces and affirms the principles of Ayn Rand, whom I deplore, and I file suit asking the court to undo the donation because the condition is not being met. The judge initially hasn’t even heard of Mill or Rand. Will he or she nonetheless make a judgment, based perhaps on reading these authors and on briefs and expert testimony, about whether Rand’s philosophy does indeed depart from Mill’s? If so, and if the current view embodied in the “neutral principles” approach is that church property should be dealt with in the same way other property is, then if I donate a building to the Acme Church of America “so long as the Church remains true to tenets of the Acme Confession of 1899,” shouldn’t a court do the same thing if I later complain that the Church has abandoned the Confession?
Just wondering.
As to Steve’s first point, I plead guilty. In fact, after making my post, I sent a copy of it to my family and said, “Mom and Dad will be proud of me for standing up for the Baptist view of things.” My parents both went to a Baptist seminary, my dad was a pastor and my mom taught adult Sunday School for about 50 years, and three of my siblings are ministers (or married to one, which is the same thing in a Baptist church). To be honest, as to church structure, as in many things, we see our own experience as the norm. If we are used to making decisions, we expect others to be able to make decisions; if we are used to taking instructions, we expect others to take instructions. But I still think my ideas expressed above hold up. Just because I was born into the Baptist church does not mean that we are not right.