This is not a land for the faint-hearted.
As congregations involved with the New Wineskins Association prepare to leave the Presbyterian Church (U.S.A.) — many of them bound for what they see as the promised land of the Evangelical Presbyterian Church — first they will wade through the swamps of property disputes.
Already, roughly 10 lawsuits involving church departures and property are pending in courts across the country — and, in other places, presbyteries and congregations are trying to negotiate their way towards some sort of amicable parting.
In some cases, the basic details of the disputes are themselves in dispute — the parties don’t agree on exactly what has happened or why. There have been accusations of secrecy and unfair maneuvering, of harshness and intimidation.
What’s clear is this: both folks aligned with the PC(USA) and those considering departure are neck-deep in strategy.
In evangelical circles, a lot has been made of the so-called “Louisville Papers,” or private strategy memos that lawyers on the PC(USA)’s national staff wrote to provide guidance to people involved in church property disputes in presbyteries and congregations.
Some have criticized the tone of the memos — for example, lawyer Michael R. McCarty, in an analysis of the memos contained in the strategy team report of the New Wineskins Association, characterizes them as “clearly un-Christian in both tone and content.” Another section of the New Wineskins report states that “the PC(USA) leadership advised presbyteries to take harsh and unbiblical action against churches suspected of considering the possibility of dismissal” from the denomination.
Among the points of criticism: the memos suggest that if the presbytery files a lawsuit involving a congregation that’s seeking to depart, that it refer in legal documents to that congregation as “schismatic.” They suggest appointing an administrative commission if a congregation appears ready to withdraw. And they suggest steps to take when a pastor seems to be trying to lead a congregation out of the PC(USA) — among them, instructing the pastor not to call a congregational meeting to discuss schism.
“The content of the Louisville Papers,” McCarty writes, “demonstrates that a church that does not have a lawyer of its own is going into a knife fight unarmed.”
And the New Wineskins strategy team tells congregations that are considering staying in the PC(USA) that “you may be attacked without warning. You may not know the timing, but you know the plan. It is set forth in the Louisville Papers.”
But there are signs of considerable legal organizing on the side of congregations contemplating departure as well.
During the New Wineskins Association meeting in Orlando in February, there was a lot of talk during workshops about legal strategy — including the possibility, for example, of setting up a separate nonprofit corporation to which church members could send their contributions, rather than have them continue to give money directly to the congregation.
On its Web site, the Layman magazine is selling a book called A Guide to Church Property Law, to help congregations navigate this rough terrain. Lists of lawyers willing to handle church property cases or offer advice are circulating.
And the New Wineskins Association strategy team recommends that congregations take steps to resolve the status of their property before beginning the process of disaffiliating from the PC(USA).
It suggests, for example, that congregations prune inactive members from the rolls, so those people would not be considered members who disagree with a decision to leave the PC(USA). It discusses possible moves a congregation could consider — for example, amending its articles of incorporation to deny that the congregation’s property is held in trust by the denomination.
And some congregations that want to leave, following one course suggested by the New Wineskins strategy team, have begun going to secular court to seek temporary restraining orders preventing the presbytery from taking any action against the congregation or its pastor.
The New Wineskins report suggests the possibility of filing such actions in the secular courts before attempting negotiations with the presbytery.
“You are in the best position to know the depth and nature of your relationship with your presbytery,” the strategy team report states. “If you have an uncertain, unfriendly or even hostile presbytery, then you should file suit before talking, in order to protect your interests. On the other hand, if you have a friendly presbytery or a neutral one, filing before talking may be counter-productive.”
In some cases, a presbytery may try to be conciliatory — Mississippi presbytery, for example, passed a measure in November 2006 saying it will not resist efforts of local churches to ask Mississippi state courts to “clear its property of any claims” from higher church bodies.
But the Synod of Living Waters plans to conduct an administrative review of the presbytery relating to property issues — so it’s unclear what impact that synod review of the Mississippi policy could have.
In other places, presbyteries are contesting the efforts of congregations to leave and take their property with them. In Tulsa, for example, Kirk of the Hills — where the New Wineskins held their meeting in July 2006 — voted in August 2006 to disaffiliate with the PC(USA), and its co-pastors, Tom Gray and Wayne Hardy, renounced their ordinations in the PC(USA). The Kirk also filed action in court to try to claim the title to its valuable property — that litigation is still pending.
Eastern Oklahoma presbytery has appointed an administrative commission, which has declared the Kirk to be in schism. Gray, in his blog, recounts some of the back-and-forth of the dispute — debates over everything from how many members Kirk of the Hills has (2,700 or less?) to how many Kirk members disagreed with the decision to leave.
John Witte Jr., director of the Center for the Study of Law & Religion at Emory University and a law professor, said he’s definitely seen an acceleration of church property disputes in the courts — and predicted that such cases are “going to expose the ambiguity between two lines of Supreme Court cases” regarding such issues.
One line of cases, following the “deference” principle, defers to the highest religious authority within a denomination’s tradition to resolve such disputes. In that line of cases, the secular courts “basically act as a referee to ensure that the contest gets resolved by the highest authority” within the denomination, Witte said.
But another line of cases introduces the idea of neutral principles — that in some cases, the courts can resolve property disputes by relying on the plain meaning of written documents such as deeds, mortgages and contracts.
Those two lines of cases can come into conflict, Witte said, “if the dispute is about who the highest authority is, or if the documents are ambiguous.”
So far the U.S. Supreme Court has let both lines of cases stand — and the lower courts have relied on both, he said.
Many congregations seeking to leave the PC(USA) seem aware that the case law involving church property disputes is convoluted — but some are willing to move forward nonetheless.
Forrest Norman is a lawyer from Cleveland who’s consulted with a number of PC(USA) congregations considering leaving for the Evangelical Presbyterian Church.
In many of those congregations, the decision to leave is “amazingly non-problematical,” Norman said. “The discernment process is usually engaged in over a long period of time,” and often “there is grave concern that the denomination is watering down the gospel.”
When the congregation discusses what’s been happening in the PC(USA), “the decisions aren’t that tough,” he said — the vote to leave is sometimes by a 90 percent margin or more.
From Norman’s perspective, “these congregations shouldn’t be forced to stay in a denomination they don’t want to be part of.” And to fight for the property when they leave “is a matter of stewardship,” he said.
But Gregory Goodwiller, the executive presbyter of St. Andrew Presbytery in Mississippi, sees it differently.
In some cases, he said, what is at stake isn’t just who gets the property, but what responsibility a presbytery has in the PC(USA) system to exercise oversight in a connectional system. In one case in which a congregation in his presbytery was granted a temporary restraining order, for example, that order was granted ex parte — without giving the presbytery a chance to appear in court to present its side of things, Goodwiller said.
And he contended in a letter he wrote to members of the presbytery that the judge’s order in the case, brought in response to a request from First Church in Corinth, Miss., would “severely limit the presbytery’s ability to fulfill its constitutional responsibility to provide care and oversight to its minister members and congregations,” as required by the PC(USA)’s Book of Order.
The temporary restraining order has since expired.
But Goodwiller said in an interview that such court orders raise First Amendment questions, because they involve “the right of presbytery to assume original jurisdiction, for instance, or to discipline its members if it sees fit. These are not property issues. … It concerns me because part of our way of being the Christian community is that our system of government includes oversight and care, and we exercise that in nurturing kinds of ways, and at times we exercise it in disciplinary kinds of ways. That’s our way of being the Christian community. And we’re supposed to be protected from the interference of secular courts in how we do that.”
The Corinth congregation, in documents filed in court, has said it expected the presbytery to file suit claiming that the congregation’s property was being held in trust for the denomination. So it filed for the temporary restraining order.
Witte, the law professor at Emory, gave this overview of such disputes.
“It’s messy. It’s as messy as any marriage gone bust.”
