Wednesday, January 13, 2010

In the bleak mid-winter, the church land and building wars heat up across the United States

From Christianity Today:

Ross "Buddy" Lindsay III receives phone calls every day from pastors who want his help wresting their church property from denominational control. As chancellor of All Saints Church in Pawleys Island, South Carolina, Lindsay has spent a decade immersed in church property disputes. He is one of only four Americans with a master's degree in canon law from Cardiff University in Wales.

In September, the South Carolina State Supreme Court ruled 5-0 in favor of All Saints, allowing the 800-member congregation to keep its 50 acres worth $20 million. Before leaving the Episcopal Church (TEC) in 2004, the church amended its charter, declaring that it no longer accedes to the national constitution. The court ruled the national church did not retain clear ownership of the local church property.

"The All Saints case is a roadmap for other congregations to secure their property before leaving their denomination," Lindsay says. All Saints is emblematic of passionate struggles that pit scores of breakaway congregations and entire dioceses against mainline denominations, primarily TEC and the Presbyterian Church (USA). In court papers, denominations paint local churches as secessionists, while local congregations see themselves as defenders of the faith set against an apostate national church.

Each side believes the turf wars could impact the future of church-state relations, since the U.S. Supreme Court may get involved. Lindsay says, "If the Supreme Court rules for All Saints, it could largely be the death of Episcopalian, Presbyterian, and Methodist churches."

Some conservative congregations in the PC(USA) contend that when their denomination has made no financial investment in a local church, it should not stand to gain when a church attempts to leave. "The denomination didn't put a dime into these local church properties," says Parker Williamson, editor emeritus of The Presbyterian Layman, a conservative North Carolina-based journal.

So far, only a handful of parishes have prevailed against denominations. "It's relatively easy for religious organizations that have good legal advice to protect the property from a breakaway faction," says Sarah Barringer Gordon, an Episcopalian and constitutional law professor at the University of Pennsylvania Law School. "Even if the majority wants to leave, the denomination has documentation on its side."
Historic Precedence

In 1871, the U.S. Supreme Court ruled in Watson v. Jones that local congregations that had agreed to abide by the bylaws of denominations with hierarchal structures were bound by a "compulsory deference rule." In property matters, the final decision was left to the national office.

Then in 1979, the Supreme Court ruled in Jones v. Wolf that a state may adopt "neutral principles" of law by examininglegal documents to resolve church prop-erty disputes. The South Carolina Supreme Court used the neutral principles approach in its All Saints ruling. After leaving TEC, the church affiliated with the Anglican Mission in the Americas, a Rwandan mission effort with which many former TEC churches have affiliated.

In the wake of Jones v. Wolf, many mainline Protestant denominations have changed their constitutions to declare that real estate, personal property, and endowments are held in trust by the denomination, so that regardless of whose name is on the deed, local churches accede to the national body.

Lindsay says that All Saints is the only local church to confront the accession issue head-on and win. "If accession language remains in the congregation's charter, it is deadly in a church property suit," he says. Episcopal officials believe All Saints' case is an aberration. The church was founded in 1767, before the founding of the national church.

The outcomes of property dispute cases often depend on the state in which the conflict occurs. In California, courts tend to focus on national church hierarchy. In October, the U.S. Supreme Court declined to hear the high-stakes case of St. James Parish v. Diocese of Los Angeles. St. James lost in pre-trial motions at both the appellate court and state supreme court levels. In 2004, St. James aligned with the Anglican Church in North America, a network comprising former TEC churches.

Richard Crocker, rector of the 350 member St. James in Newport Beach, says he remains hopeful the case will go to trial because of a written promise by the denomination in 1991 that it would never lay claim to the property. In the meantime, he says, "I am trying to keep the mission of the congregation focused on the gospel of Jesus Christ, the only Savior."
Not Just Property

More cases are percolating up to higher courts. This spring, attorney Steffen N. Johnson of Alexandria, Virginia, will represent half a dozen breakaway TEC churches that have sued the denomination to keep property. In 2008, the Fairfax County Circuit Court ruled in favor of the local congregations. The consolidated case is before the Virginia Supreme Court. More than $5 million has already been spent by both sides.

"When there is division within a denomination, a congregation can vote to determine which branch of the divided body it wants to join," says Johnson. In the Virginia case, the parishes realigned with the Convocation of Anglicans in North America, associated with the Anglican Church of Nigeria.

Although the U.S. Supreme Court has made it clear that judges should not rule on doctrinal disputes, civil courts can determine whether the local parish or the denomination is the rightful owner, though this can be difficult to do.

George Washington Law School professor Robert W. Tuttle says that some jurisdictions have been sympathetic to local congregations that never accepted unilateral denominational impositions to control all property in trust.

Other jurisdictions have determined that if a congregation remains in a denomination for decades after implementation of such rules, accession is implicit. Consequently, a checkerboard pattern of court decisions has developed.

"In most of these fights there is at least some remnant that wants to remain, so the fights are really about who is the true congregation," Tuttle says.

"It's not just about property," says L. Martin Nussbaum, a Colorado Springs attorney who defends religious organizations. "It's also about who are the lawful ecclesiastical officers. Typically a majority faction leaves and tries to claim the property on the way out."

From a legal standpoint, the lawsuits are about the land, the buildings, and all improvements made to the real estate. But because real property includes endowments, wealthy churches may have multimillion-dollar investment portfolios at stake.

University of Missouri School of Law professor Carl H. Esbeck says the disputes are about more than local congregants finding another place to worship. "For some people, these are buildings where they were married, where their children were baptized, where their parents are buried in the churchyard. There are ties and memories to the site that can't be replaced by pulling up stakes."

Read it all here.


Steven in Falls Church said...

Pretty fair article, except for this:

"This spring, attorney Steffen N. Johnson of Alexandria, Virginia, will represent half a dozen breakaway TEC churches that have sued the denomination to keep property."

As we all know from BB's exhaustive commentary, the parishes did not sue TEC. Rather, TEC and the diocese sued the parishes along with hundreds of volunteer vestry in contravention of a detailed protocol for departing congregations that had been worked out between representatives of the parishes and the diocese, and furthermore after explicitly consenting to the parishes recording their disaffiliation votes with local courts under a "Standstill Agreement"--a document that TEC partisans have convinced themselves never existed.

(Now awaiting the predictable wailing from the "Anonymous" ankle-biters.)

Hoofin said...

Well, I for one am happy that these issues are getting the hearing, which they deserve, of a wider audience.

My own feeling is that most parishes are "stuck" in whatever denomination the property and/or charitable corporation set themselves up in. But I do think it's bad news that the hierarchies are claiming that they have a duty to spend hundreds of thousands on attorneys for cases that aren't always watertight.

The irony of the Episcopal Church is that the hierarchy can be lackadaisical about canons when it wants, too. My own case from 1993, Gundlach v. Laister, is perhaps the first and key one. I tried to get Canon I.17(4) applied against a parish that had not recorded my name (as the canon says). Even though Pennsylvania statutes say that the canons are law for a denomination in the state, the (Roman Catholic) judges wouldn't let the case in. And Allen Bartlett, then-Bishop, gave new definitons to the terms fumbling and mealymouthed. I discuss some of this here:

Clear rules from the civil courts would do a lot to put an end to the litigation. But do you see any?

DavidH said...

There are more important things going on in the world today, so I'll limit my comment to this. Folks like BB and Steven illustrate vividly that denial ain't just a river in Egypt.

RB said...

BB --

Though I am sympathetic to CANA, ACNA, et al., I suspect that, in the end, those who win the property may very well lose the battle. Much as we love our beautiful church structures, they won't love us back, and many of these buildings will demand more and more of us with age. Plus I think there's a lot to be said about the idea of just getting out of the fight with its bitterness and angst, and starting afresh, building new churches. I would think a congregation without a building is far better than a building without a congregation. Also, I would that both ACNA and TEC would recognize that the true treasure or "silver" of the church is the people whom we serve, the gospel that we proclaim, and the God Whom we worship, not the pews upon which we sit.

Anonymous said...

I am sympathetic theologically to the departing factions. But I think it was horrendous judgement to try to take the accounts and properties. I view that as a stain on what should have been a strong witness statement of those who felt they needed to find a new church alignment. As for Steven's point about who started the litigation, I don't know why it's particularly important. But as a factual salve on his perception of events, I can say with some certainty that at the Falls Church (where he hails from, apparently) the departers filed their court petitions within a couple of weeks after the vote and the Diocese and the national Episcopal Church are defendants in that litigation. True, counterclaims were filed, but if this is really about who went to law first, it was the people who left the church and they did so to take over the property from those who stayed.


Anonymous said...

Wow - you right-wingers really are all about getting your teeth into that property. Just leave, put up your own tent, and be done with it. Your greed is not a positive witness. If you don't like being true episcopalians or Methodists just become something else.

Unknown said...

Anon, not exactly helpful to start off a post by calling your opponents "right-wingers." How's that plank doing?


Steven in Falls Church said...

BB -- I hope you slipped on the jackboots that are standard issue for all "right wingers" as they are wonderful for guarding the ankles. The jackboots should have arrived in the mail along with your IRD check.

Phil said...

Scout: not so. The recording of the votes is a separate action from the litigation which ECUSA initiated. In fact, recording the votes can not even properly be called "litigation," any more than recording your mortgage refinance transaction can be called "litigation."

Unknown said...

That is correct, Phil, since the Diocese of Virginia was the one to draw up the Standstill Agreement in the first place after the votes were taken and filed (but no property transferred since we thought were heading to the Bishop's Property Committee). The Standstill Agreement specifically said that the filing of our votes was not a hostile act. If we're going to repeat the events, let's make sure we repeat them accurately.


Anonymous said...

Phil - As I said in my earlier comment to Steven, I have no idea why it is important who fired the first legal shot. In fact, I have a continuing sore spot with the Diocese of Virginia that it did not move preemptively in the summer and fall of 2006 to seek court intervention to enjoin the "elections" or , alternatively, to ensure that the State Board of Elections supervised the methods an processes by which the elections were held (I know, I know, that gets the State all messed up in the internal processes of the Church, but, if Virginia has a law that attaches property ownership consequences to congregational votes, it had better bloody well be ready to use its mechanisms to monitor and supervise the conduct of such elections). I also felt that the diocese should have taken disciplinary action against the separatist clergy and vestry members. They, of course, were free to leave, but they were not free to foment rebellion against the diocese from within the church.

Having said that, and thus revealing that I have no tender sensitivities about who went first, the fact remains that in mid-December 2006, at least some of the departing groups filed petitions with the state courts. These petitions were not mere recordations, they sought action from the court. The consequence of the Court granting the petition would have been to give the departing faction legal authority to transfer title of the property (and all the non-real property) to those who were leaving the Episcopal Church. The Diocese is a defendant in that proceeding (you can look it up, as Casey Stengel would say). All Diocese filings were subsequent in time to that event.

I frankly do not understand how anyone thinks that a Diocesan bishop could not have responded to such an event. Once the court petition was filed, the balloon was up. Inaction by the Diocese would have been tantamount to acquiescence in the transfer of the property. Why would a Diocese permit that?


Hoofin said...

Wait a minute. I might be butting in on some long-running technical dispute, but isn't the issue in Virginia whether the disaffiliating parishes can avail themselves of a state statute? One that lets the parishes in a church with hierarchical polity "disaffiliate" from the main church upon a vote of the appropriate representatives of a parish?

That was Falls Church, right? And it's all Virginia state statute from the Reconstruction Era? (That is, it was probably something whose legislative notes went something like: "Eeeeeeee ha! Eeeeeeeha! We ain't havin' no Yankees carpetbaggin' outfit comin' in an' doin' no reconstructin' a ahhh churches! We ah gonna pass a state lah ta give those churches the option to break away just like we tried as a sov'ren state 'til Lincoln handed us our . . . ")

Something like that.

You mean there is actually a dispute about whether the parish was right to avail itself of a law in state statute? (Whether you agree about the law or not?)

How is this an issue?

Anonymous said...

The sane thing to have done was to work out a property sharing agreement. These talks were underway at several of the now CANA churches when TEC/DioVA filed suit.

"Protect the Franchise!" screamed the Red Queen. The rest is history.

Anonymous said...

I certainly don't question the right of the departers to try to invoke the Virginia statute. I question the judgment of doing so, particularly so immediately after they left. It is an odd duck statute, but it's still on the books. I do, however, continue to question the ethics and morality of departing, and then claiming the property to the exclusion of those who stayed.


Phil said...


“Not free to foment rebellion against the diocese from within the church?” Last I checked, this being the United States of America, one certainly is free to do so.

As to the petitions seeking action from the court, again, that is a mere recordation, because, given the outcome of the votes, that is the result granted to the departing churches under Virginia statute. I understand you don’t care for the statute, but you do have recourse. (And, in my opinion, the honorable recourse is to call your delegate or state senator, not whine to the courts about phony “constitutional” issues.)

As to “not understand[ing] how anyone thinks that a Diocesan bishop could not have responded to such an event,” the entire process of consultation that occurred between Peter Lee and the parishes was a pretty good reason for thinking that. I don’t claim it was a definitive one, but the parishes had a certain understanding of the end point that, unfortunately, turned out to be inconsistent with the path taken after 815 demanded that the fields be burned and salted, never mind the fields contained their own people, too.

Finally, I think loyal Episcopalians should be careful questioning the “ethics and morality” of others, given the conduct of their institution.

Allen said...

Hey Anonymous at 7:46 AM:

Seems like the only solution that liberals can come up with is to tell those who challenge you to just "leave". Look at it THIS way. You liberals have left the building. You've taken the historic faith and made it a captive of American multiculturalism. You've got mouthpieces and prophets tied to their pensions on your side. But make no mistake: YOU left. Those who challenge you are the people who have been on the side of the historic faith. The microscopic "Church" that you want to invent doesn't go down very well, so don't be surprised if you won't have to tell dozens, hundreds and thousands more to just get lost. But make no mistake:
YOU left. And we won't go quitely while you appropriate stuff to help you to lie about the situation. YOU left.

Anonymous said...

Allen: my reference point is as a theological conservative who elected to stay and witness. I've stayed. Perhaps someday I will decide to go. When I do, I don't expect to take things with me. I really have no idea who "you liberals" are in your comment and I do not see how your fairly strident view of those people affects property rights. Perhaps you are saying that "liberals"(whatever that means) should always yield as a matter of law in property determinations to those who oppose them. That is, in its own primitive way, a standard for sorting things out, but it creates many difficulties in deciding who the "liberals" are in a given fact context, and then deciding who gets to decide. I think it needs work.

Phil: I wasn't referring to secular political speech. I was referring to clerical discipline within a hierarchical episcopate.

My view of the ethics of the situation is my own. It may or may not be valid, but its validity is not compromised or vouchsafed by your general denigration of Episcopalians as an indistinguishable (and apparently, in your view, meretricious) mass. While I would accept that Episcopalians are probably no different in the array of character faults that afflicts their number from any other similar-sized group of Christians, I do not accept the implication that we are less honorable by operation of the fact that we are Episcopalian Christians.


Phil said...

Scout - fair enough on your last paragraph, but please note I referred to the ethical behavior of the institution, not individual Episcopalians.

You're entitled to your view of the ethics of the situation, but, again, I repeat that the departing parishes are simply availing themselves of the clear rights accorded to them under Virginia law. Perhaps the law allows immoral outcomes; it wouldn't be the first, nor, I suggest, anywhere close to the most egregious, even in Virginia.

I attended The Falls Church before and at the time of the vote (in which I did not participate, by the way), and, in my opinion, the conduct of that parish, at least, was honorable. The diocese does not receive the same distinction.

Anonymous said...

I have not been sparing of the Diocese in my criticism, Phil. My criticism is that they (and, alas, in my opinion, the responsibility here primarily lies with the kind and gentle Bishop - and perhaps his kind and gentlemanly Chancellor) acted in a confused and confusing manner. I do not think it a matter of being dishonorable, but more an unwillingness to believe that there was a concerted campaign not only to attract people to the idea of leaving, but of choreographing the departure so that there would be a claim that, despite professions of being done with the Church, the departers would stay in place and claim the assets and real property of the church.

Had the position of the departing group been that they would simply depart, I might have departed with them.

I became very disaffected with the secessionists when I observed how completely propagandized the lead-up discussions were (the Episcopal church and Diocese not only had no equal voice in the pre-vote discussion, but were caricatured and ridiculed constantly in the months before the vote) and when I saw how central keeping the property was to the departers position, and how they used the prospect of keeping the property as a rationale for promoting votes to depart. I think somewhere around two-thirds of the votes were for departure (accepting for the moment the smaller head count on eligible membership that had emerged in the period immediately prior to the vote). That number would have been much lower if there had been honest doubt conveyed from the clergy or the vestry that the property could or should have been taken over.

The amount spent on lawyers' fees since then could have built or started a splendid new church. Since the vote, those who chose to stay have been forced to worship in borrowed quarters and their requests to have Episcopal services on the premises they voted not to leave have been rejected or ignored.

I have acknowledged before that there might be circumstances where a decision by persons to leave the Episcopal Church would not be ethically besmirched by an effort to seize the property. That would be where the vote was unanimous, and where all the current members had been members at the founding or had joined since the founding and, over the history of the parish, the Diocese had contributed absolutely nothing in aid or support for the church - essentially an autonomous parish where none of the members had died and where none would be forced out if they chose not to depart. That is an extreme hypothetical that has not yet existed in any of these Church property fights. Anything this side of that hypothetical leads me to believe that the most defensible principle of separation is that if someone leaves, he is free to do so. God be with him. If a number of people leave, they are free to do so. God be with them. But they don't take things when they go. They don't stay and tell those who didn't leave that they must worship elsewhere. This principle is completely free of any risk of litigation. It also keeps the resources of the departers and those who stay entirely within the Christian community. Any other principle leads to contests, controversy and waste.


Anonymous said...

"the Episcopal church and Diocese not only had no equal voice in the pre-vote discussion,..."

Representatives of DioVA were invited to speak. Bishop Lee sent a video... We played it, but his failure to appear at any of the churches sent a much clearer message than anything contained in the video. Other representatives opposed to departure did addrsss our congregation and were treated respectfully.

Scout, while you are free to express your opinion of those who departed, please do not represent as fact those issues on which you are uninformed.


Bob said...

I've been a member of TFC for over 20 years. I was, until December 2006, born and raised in the Episcopal Church. I went to the Adult Education forum and the meetings. It didn't strike me is a propaganda and if anything, the years of abuse of conservatives by the National church and the ham-handed way they were treated in the neighboring diocese of washington were more than enough for me. Up until January 2007, I believed Bishop Lee when he stated his goal was to keep us as close as possible. His actions after that were - disappointing.

My point is this debate completely ignores the larger narrative of the liberal domination of the leadership of the church which made more and more clear conservatives were only wanted if they paid the money and sat quietly in the corner.

I felt I had the church I was raised in ripped out from underneath me. I expect my old diocese - which has one of the last remaining conservative bishops - will "fall" after his retirement. There is no way somebody so "conservative" will make it again - even though he used to be a moderate. He hasn't changed, the church has.

If Virginia law provided us a legal way to retain what we had built - and as you know the current congregation built a great deal and I assume you participated in that process - then it did not strike me as unethical to avail ourselves of it. It was clear to me we would not be treated fairly within the church.

Finally, I respect Scout's willingness to witness within the church. That takes courage. Maybe you're called to a true prophetic witness.