Doing the legal limbo limbo rock :: Washington Post

Concerning property disputes and schism in The Episcopal Church:

Each side has accused the other of rushing to court. But independent legal experts say part of the problem is that the law in this area has become increasingly unsettled as courts in various states have taken differing approaches and arrived at differing conclusions about who gets the assets in a church divorce.

Martin Nussbaum, a Colorado lawyer who has represented the Roman Catholic Church and evangelical Protestant congregations but is not involved in the Episcopal Church dispute, said he believes the diocese holds the stronger legal position.

"The majority of rulings suggest that in the Episcopal Church, the secessionist congregations cannot take their stuff with them," he said.

Still, he added, there are enough inconsistencies in the way courts have handled such cases that congregational leaders are encouraged to roll the legal dice.

"Whatever happens with the Northern Virginia congregations, it's going to be a very important case historically and constitutionally," said William F. Etherington, a Richmond lawyer who specializes in church-state law. "A lot of people are going to be paying very close attention to it, and not just in the Episcopal Church."
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The Supreme Court tackled a similar dispute over church property in 1871, in the landmark case Watson v. Jones. Much as homosexuality threatens to divide churches today, slavery was the divisive issue then.

After the national Presbyterian Church declared support for Abraham Lincoln and the Union, the Walnut Street Presbyterian Church in Louisville split into pro-slavery and anti-slavery factions, each claiming the property. The Supreme Court ruled that when a congregation belongs to a hierarchical church with its own laws and governing bodies, civil courts have no business interpreting church doctrine and must defer to the highest church tribunal.

In practice, this favored dioceses and national denominations over individual congregations. It remained the controlling precedent for nearly 100 years, until a pair of cases in the late 1960s and '70s involving Presbyterian congregations in Georgia that sought to leave the national church over such issues as the ordination of women and the Vietnam War.

In those rulings, the Supreme Court said state courts do not have to defer to hierarchical church authorities when it is possible to decide property disputes based on neutral principles of law, such as an examination of deeds and trusts. A state may adopt "any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters," the court held in 1979.

Since then, courts in Michigan, Florida and Texas have continued to defer to hierarchical churches, ruling that departing congregations cannot keep their property. Courts in Maryland and several other states have taken the neutral principles approach and arrived at the same result. In 1983, for example, the Maryland Court of Appeals ruled that a Baltimore congregation that severed its ties to the Presbyterian Church could not give its building to another church.

But courts in a few other states, including New York, Ohio and California, have decided in favor of departing congregations. In 2004, for example, a California appeals court allowed St. Luke's Community Church in Fresno to break away from the Methodist Church and keep its property.

Virginia's Supreme Court has given hope to both sides. In 1977, it accepted a lower court's ruling that an Episcopal Church in Clifton Forge had no right to its church or parish house once it left the denomination.

Twice in more recent years, according to Etherington, Virginia's highest court has said it must defer to church authorities on matters of internal governance. But in a 1974 case, Norfolk Presbytery v. Bollinger, the state Supreme Court endorsed a neutral principles approach, saying a lower court could resolve a church property dispute by considering "the statutes of Virginia, the express language in the deed and the provisions of the constitution of the general church."

Lawyers for the departing Episcopal congregations cite that precedent and emphasize two facts: The deeds to the properties are in the names of individual trustees, not the diocese, and the buildings were erected without financial help from the national church.

A linchpin in the diocese's legal case is a canon, or law, adopted nationally by the Episcopal Church in 1979 that says all parish properties are held in trust by their dioceses. But Steffen Johnson, an attorney for the departing members of The Falls Church and Truro Church, said Virginia law does not recognize such trusts.

Watson v. Jones: "The Fountainhead"

For the present day conflict the irony is rich, given that the case revolved around "a property dispute between the pro-slavery and anti-slavery factions of a divided Presbyterian congregation in postbellum Kentucky." For it involves whether it is biblical to exclude.

From the Religious Liberty Archive:

The Watson Court held that disputes in hierarchical churches should be decided by a rule of judicial deference to the ecclesiastical hierarchy:

[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final and as binding on them, in their application to the case before them.

. . .
The Watson court rightly predicted that its decision would have "far reaching influence" and concluded that it had identified a "matter over which the civil courts exercise no jurisdiction."
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the court recognized that the rule of judicial deference was appropriate because church members had impliedly consented to their respective church disciplines:

All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed.

. . .
the Supreme Court later constitutionalized Watson's principles. Kedroff, 344 U.S. at 116 (1952).

[Watson] "radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.

It's not about the property, but about the faith

William Etherington, a Richmond "lawyer who devotes a substantial portion of his practice to advising religious institutions" writing in today's Richmond Times Dispatch:

In the Colonial era, the Church of England was the established church of the Virginia Colony. The disestablishment of the church followed the Revolution, and the new commonwealth asserted that the properties were properties of Virginia. The properties were subsequently conveyed to trustees - under the predecessor of current Virginia Code Title 57 - who held the properties for the use of the parishes and for the benefit of the newly constituted Diocese of Virginia and the Episcopal Church, which is now the rule of Canon I.7.4; the trustees are fiduciaries for the diocese and the Episcopal Church.

Recent stories have characterized the current dispute as one of property ownership. In reality, the property questions are but an adjunct to a larger question that relates to church governance. Litigation probably will result favorably for the diocese, most likely not by affirmative decision, but rather by a civil court's refusal to accept subject matter jurisdiction over the dispute. Historically, civil courts have deferred to ecclesiastical authorities when disputes arose within hierarchical churches.
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The Virginia Supreme Court - in its 1985 decision in Reid v. Gholson, reaffirmed in Cha v. Korean Presbyterian Church of Washington in 2001 - acknowledged the hierarchical-congregational distinction, holding that hierarchical churches are guided by a body of internally developed canon or ecclesiastical law. The decisions of such churches under their internal laws may be promulgated as matters of faith and considered entirely independent of civil authority. Persons who become members of such churches accept their internal rules and decisions of their tribunals.

For that reason, the court held that civil courts must treat a decision of a governing body or internal tribunal of a hierarchical church as an ecclesiastical determination constitutionally immune from judicial review. This is the Doctrine of Church Autonomy, derived from the First Amendment to the U.S. Constitution. ... [The U.S. Supreme Court in 1871] recognized that the dispute ... at issue - although sounding like a property dispute - was really about which group would select pastoral leaders to inculcate the faith among parishioners. Essentially, it was a request for a civil court to side with one theological faction over another.
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However, should the courts take jurisdiction, applying a neutral principles analysis, the result likely will be the same, since the secessionist parishes had, until December, accepted the canons and rules of the diocese and the Episcopal Church that are clear: Property is held for the benefit of the diocese and church, from which secessionist parishes cannot now unilaterally opt out. Their rejection of the canons of the diocese and church can be but prospective, not retroactive.

Do not rely on my edition: read the whole thing.

Aside: Mr. Etherington is rather busy these days.

UPDATE: There are many cogent comments on this article posted at titusonenine. Very much worth reading through.