It’s like the moth that keeps darting through the room — flickering at the periphery of things, always moving on, hard to see clearly. But there’s a growing sense in the Presbyterian Church (U.S.A.) that property issues — and particularly the question of whether a church that wants to leave the denomination can take its property with it — are worth keeping an eye on.
The property question is being debated openly in the PC(USA) and in other denominations as well — most noticeably in the Episcopal Church. Some congregations, furious about the denomination’s decision to consecrate V. Gene Robinson as an openly gay bishop in 2003, say they’ve withdrawn from the jurisdiction of the Episcopal Church in the United States, in some cases have affiliated with conservative Anglican bishops in Africa.
Some of the congregations that leave are determined to take their property with them. They’ve hired lawyers and initiated legal challenges to the idea that congregations hold their property “in trust” for the denomination — challenges that in certain cases have been successful.
That’s enough to convince some Presbyterians that momentum is building — that the PC(USA) too may be on the brink of a favorable court ruling, or a string of them, that would allow congregations convinced the denomination has strayed from biblical teaching to leave without abandoning the sanctuaries and other structures they’ve given so much to build.
Others caution that laws vary considerably from one state to the next — and the facts may be significantly different from one case to the next, depending in part, for example, on the details of documents such as property titles and church bylaws. So how much impact a particular court ruling may have on another pending case is very much an open question.
The U.S. Supreme Court ruled in the 1979 Jones v. Wolf case that a state may adopt a “neutral principles of law” approach to church property disputes — deciding such cases not on the basis of doctrine or polity, but by assessing “neutral” matters such as the deed to the property, the church’s charter, state law regarding property, and the denomination’s constitution. That, plus variety in state laws and the fact situations involving individual congregations, has produced a range of church property rulings.
In 2004, for example, the Fifth District Court of Appeal — a state court in California — ruled that a congregation in Fresno that had broken away from the United Methodist Church could keep its property, worth more than $1.5 million. The California Supreme Court later let that decision stand. Some characterized that ruling as a potentially landmark case with implications for other denominations, such as the PC(USA), in which congregations are considered to hold their property “in trust” for the denomination.
But the St. Luke decision in Fresno hasn’t become an immediate, controlling precedent for all other property cases.
“People are kind of extrapolating about what this line of cases could lead to,” said Kenneth M. Robbins, a lawyer and Presbyterian elder from Merced, Calif. “I’m not sure we can do that. … We really don’t know where this is headed.”
And other cases have certainly gone the other way.
In 2002, a Superior Court judge in North Carolina ruled that the property of St. Andrew’s Episcopal Church in Morehead, N.C. — a congregation that had voted to withdraw from the Episcopal Church and put itself under the authority of an archbishop from Rwanda — belonged to the Diocese of East Carolina. The North Carolina Court of Appeals upheld that decision in 2003.
So the moth flies on, criss-crossing the territory, hard to pin down.
Keeping watch
Presbyterians, however, are keeping careful watch, with the conversation fueled by the possibility that the General Assembly might take the denomination down some controversial path this summer regarding gay ordination.
The Episcopal General Convention also will meet this summer — gathering in Columbus June 13-21, the first national conclave in three years. Anticipating a possible split, both liberal and conservative Episcopalians are already planning strategy regarding church property issues in case conservative bishops try to lead out groups of churches. There’s a sense that the issue is heating up.
“There is no question the tempo has picked up,” said Robert L. Howard, a lawyer from Wichita and member of the board of directors of the Presbyterian Lay Committee. “The evangelical wing of the church is thoroughly disgusted with the PUP report,” he said, referring to the report of the Theological Task Force on the Peace, Unity and Purity of the PC(USA). “An awful lot of evangelicals see it as a breaking point in the church and feel the church has left them.”
Harriet H. Sandmeier is stated clerk of Hudson River Presbytery, where a case being litigated is one she thinks has the potential to be a “landmark” ruling. “There are a lot of eyes looking toward what could be the outcome,” Sandmeier said.
“People are watching,” said Stanley Wayne, a lawyer for the Hudson River congregation that’s trying to leave. “The remaining conservatives — they’re all watching with eager eyes. They would like to leave too.”
There are rumors of “war chests” being established and lawyers being mobilized to represent congregations in church property cases.
The Presbyterian Coalition, an evangelical group, discussed the issue formally for the first time at a recent board of directors meeting. Coalition executive director Terry Schlossberg said she “definitely” sees increasing attention being paid to the question of who actually owns the property — and to the matter of whether it’s structures and property that hold the denomination together, or theology as well.
Stockton Presbytery in California has introduced Overture 71, which proposes changing the Book of Order to say that “all property held by or for a particular church, no matter how title is held or by whom, is the sole property of that church,” except for the amount of financial assistance, such as a loan, that the PC(USA) may have provided.
The overture also states that the PC(USA)’s relationship to a particular church could be severed either by an action by the presbytery or by a vote of 60 percent of the active membership of the congregation.
“No church should have to forfeit its assets to upholds its biblical beliefs,” the overture states.
And the New Wineskins Initiative is taking on the property issue as well. If this summer’s General Assembly were to do particular things — if it chose a particular constellation of actions regarding homosexuality that evangelicals found untenable — then a group of congregations might join together and decide to leave, said Dean Weaver, pastor of Knox United Presbyterian Church in Kenmore, N.Y., and a New Wineskins leader.
If, for example, the denomination decided to change the ordination standards to allow gays and lesbians to be ordained, “I think you’re going to have a massive movement — and I mean hundreds of churches — that are going to say, ‘I want out,’ “ Weaver predicted.
What could happen then, he said, is that congregations might go together to denominational leaders and ask to negotiate a means of departure that might allow them to leave with their property. A negotiated settlement “would be better for everybody,” Weaver said — less publicly ugly, more a witness to God’s presence.
Along with discussing legal issues, there’s also more conversation about the theology involved — about what the relationship between the national church and congregations involves.
Schlossberg, for example, said she thinks the discussion of the report of the Theological Task Force on the Peace, Unity and Purity of the PC(USA) has fed discussion of what it means to be a connectional system — including consideration of such things as property ownership and the possibility of non-geographic presbyteries.
“Our unity should not be defined by the obligations of property — I see that argument being made more now,” Schlossberg said. “When people see theological differences, they begin to look at what are the obligations — structural and polity-wise” that hold the denomination together. “They were not interested in talking about property in the past. Now they are interested.”
How the law evolved
Some understanding of the rulings today can come from knowing how church property law has evolved in the United States.
Valerie Munson is an attorney from Philadelphia who specializes in religion and law, but who has chosen not to litigate church property cases — she’d rather be a resource to all sides concerned about the issue. Often, when a congregation decides to leave a denomination, the departure involves some kind of doctrinal controversy, and “that makes it very important to people,” Munson said.
The early common law tradition, which derived from the Scottish courts and was relied on in colonial times, held that the people who gave money to the congregation originally must have had in mind a certain type of faith they wanted to perpetuate, so whichever side in a dispute came closest to that got to keep the property, an approach known as the “departure from doctrine” approach, Munson said.
She said people following that approach asked, “Why should we have to lose our property when they’re the ones who’ve changed the doctrine, when we have just stood still and been faithful?”
After the Civil War, some courts shifted to a new philosophy — deciding that civil courts shouldn’t be involved in church doctrinal disputes but should defer to what the churches themselves determined should happen, which usually meant the property stayed with the denomination.
So different states developed their own bodies of law.
And in the 1979 Jones v. Wolf decision, the U.S. Supreme Court determined that state courts don’t have to defer if they don’t want to.
As a result, because those circumstances vary, as do state laws, a ruling in one case may not necessarily be viewed as setting precedent for another case in another state, although it might be viewed as “persuasive,” Munson said.
Taking Leave
When a congregation does decide to leave the denomination, the leave-taking can be filled with high drama — with passion and hope for what could be and denunciations for what’s already taken place.
In Ridgebury, N.Y., the congregation of the tiny First Church voted unanimously to leave the PC(USA) and now is awaiting a ruling from a state court on whether it can keep its property.
Stanley Wayne, a lawyer who is not a Presbyterian minister but serves as “interim pastor” for the congregation that now calls itself The Church at Ridgebury, said the church of fewer than 25 members “decided to leave when the denomination lost its moorings.”
Wayne cited a string of denominational controversies and said, “That kind of conflict with leftist ideology was there and it just grew and grew and grew. … They’re basically not listening to their own Book of Order and they’re not listening to the Bible. We said, ‘We’ve had enough of this.’ So we decided to leave. … There never was a thought in our minds that the property belonged to someone else.”
Wayne said the property in question — the church, a parsonage, a community center in disrepair and acreage in a farming area — “would be worth quite a bit,” more than $1 million. He said the congregation, founded in 1792, never signed any documents agreeing to put its property “in trust” with the PC(USA) and “we hold the title.”
But Sandmeier, stated clerk for Hudson River Presbytery, sees things differently. She said the congregation sent a letter to the presbytery in January 2005 announcing its intention to leave, and since then has rebuffed the presbytery’s efforts to work things out.
“They could have petitioned the presbytery to be dismissed to another denomination,” Sandmeier said. Another congregation did that, leaving for the Evangelical Presbyterian Church about three years ago. “They took their property at a price,” negotiated with the presbytery, which was substantially below market value, she said.
“We have absolutely been willing to do that, but they just wouldn’t do it,” Sandmeier said of the Ridgebury congregation. “The primary issue for us is that this church is located in a rapidly growing area. … First and foremost, the presbytery’s concern is Presbyterian mission and presence in that particular area.”
Sandmeier said the presbytery is “prayerfully awaiting” what the court might do, and said: “This is also a very, very expensive process, which is to me the saddest part of the whole thing . . . The money and the time and the trees that have been spent that could better have been spent in direct mission effort is very sad. But I guess it’s where we are in the times.”
