After holding an extensive interview with Stated Clerk Clifton Kirkpatrick, reported in recent weeks on this Website and in the magazine, Outlook editor Jack Haberer, pressed Mr. Kirkpatrick to answer some of the particular questions that have arisen from Outlook’s readers regarding the legal advice circulated by denominational leaders on the matter of church property disputes. Mr. Kirkpatrick met via conference call with the editor, along with Mark Tammen, Associate Stated Clerk for Constitutional Services, and Eric Graninger, General Counsel: Legal/Risk Services for the General Assembly Council. After discussing these matters, they agreed to prepare a detailed response to those questions. Here is that response
Over the past several months, some have expressed concern about two resources relating to church property that critics have called the ‘Louisville Papers.’ Others have expressed support for them. The first is a Polity Memorandum prepared by the Office of the General Assembly’s Department of Constitutional Services, while the second is a Legal Memorandum prepared by the General Assembly Council’s Office of Legal Services. (1) This statement comes to clarify the origin and timing of these resources.
The Polity Memorandum and the Legal Memorandum were created as resources enabling presbyteries to better understand and work with these processes. Presbyteries are in no manner compelled to use these documents. They are simply advisory and, hopefully, helpful. (2) While some may believe that the Legal Memo presents matters in rather stark terms, this simply reflects the legal process and terminology of secular litigation, where decisions are made by attorneys and judges (for whom Presbyterianism may be wholly foreign) under strict rules of evidence and procedure. The Legal Memo is a practical introduction to civil litigation, to assist presbyteries when they find themselves in such circumstances, but is by no means intended to encourage recourse to that forum.
While some have focused only recently on these materials, they are not new. They were first prepared in 2001, in response to requests from presbyteries and their legal advisers. Moreover, they have never been ‘secret,’ as some have claimed. The OGA paper has never born any label indicating confidentiality. The Legal Services memo is a confidential attorney document. Like many attorney-written documents, it was handled in this way in order to avoid its misuse by others who might wish to start or pursue civil litigation. These documents were intended to provide background information and pastoral aid to presbyteries, not to be used as legal briefs.
Real and personal property used by congregations and governing bodies of the Presbyterian Church (U.S.A.) is held in trust for the whole church. This has been a basic precept of Presbyterianism, grounded in the polity of the church, since its inception in the 16th Century. People gather together in congregations in order to worship and serve in a particular location. Often they do so in properties that have been built up by past generations of Presbyterians, with the cooperation and support of their presbytery. When current members of a congregation wish to withdraw from the denomination, presbytery is charged with the responsibility to work with the session, pastors, and congregation, to determine how the mission of Jesus Christ might best be advanced in that place, and to ensure that all persons receive pastoral guidance and support. Most important, the church acts on the understanding that it owns and uses property not in order to enrich itself, but in order to proclaim the Gospel and to serve the great ends of the church. (3)
At the same time, church property is subject to the civil laws of the state in which it is situated. Occasionally, when tensions arise in the church, one sees litigation in the secular courts to resolve who is entitled to church buildings or assets. The U.S. Supreme Court has addressed such disputes a number of times, trying to resolve them without violating the separation of church and state guaranteed by the U.S. Constitution.
The Polity Memorandum describes a progression of steps through which a presbytery can work with a congregation that is experiencing difficulty. This memo notes that the central decision for the presbytery is what best serves the mission of Jesus Christ and, secondarily, the Presbyterian Church (U.S.A.) in that place. Its purpose is not to ‘take sides,’ or to influence the ultimate resolution of a particular controversy. Rather, its purpose is to help presbyteries understand how our constitutional process works and the range of options our polity makes available in church withdrawal situations.
If members of a congregation have expressed unhappiness and perhaps an intent to withdraw, the Polity Memorandum recommends that presbytery send a team to visit the congregation, to learn and share information, to consult with its leaders and members, and to provide pastoral care. If problems are more serious, the memo notes that presbytery might form an Administrative Commission to exercise effective oversight. In any event, the Polity Memorandum emphasizes that presbyteries and their commissions ‘need always remember that they act in the name of the Lord. Their work is not about winning, or even bringing about change, but about restoring healthy ministry within a certain context. Commission members must always treat elders, pastors, and members with respect and patience.’ (4)
In some cases, presbytery may well determine that the proclamation of the Gospel and great ends of the church would be best served in a particular place if the congregation were dismissed with the property. In other cases, presbytery may determine that the property should be retained for members of the congregation who wish to remain (referred to in the Book of Order as the ‘true church’ -that is, the group that is acting in a manner true to the denomination). In yet other cases, the presbytery may determine that the best course is to dissolve the existing church and to use the property for other missional ends, such as providing worship space for a new immigrant congregation. All of these decisions should be grounded in the presbytery’s understanding and exercise of mission in that locale.
As noted in the Polity Memorandum, the Book of Order sets out careful and fair processes by which the church makes these difficult decisions. Elders and ministers working through orderly processes can faithfully and collegially resolve matters even in times of deep disagreement. Indeed, this is when the polity is most necessary.
Both the Department of Constitutional Services and the Office of Legal Services are committed to the historic processes for which our Constitution provides.
Unfortunately, we recently have seen roughly a dozen congregations sue their presbyteries in civil court (suits by the presbyteries are almost unheard of). In most instances, these congregations abruptly abandoned our process under the Book of Order and brought suit without any advance notice or consultation with the presbytery. Indeed, in some cases, the congregation sought a court order forbidding the presbytery even to talk with the session, ministers, or congregants. Unfortunately, these lawsuits demonstrate the need for both the polity options provided in the OGA memorandum and the Legal Memorandum. Civil lawsuits are neither ideal nor common in the church and most presbyteries are ill-prepared to respond to them without some assistance.
In 1871, the U.S. Supreme Court addressed a Presbyterian schism arising from debates over slavery (Watson v. Jones). The Court set out in detail the Presbyterian system of church governance: sessions, presbyteries, synods, and General Assembly. The Supreme Court held this system created an implied trust in property whereby the civil courts must defer to the decisions and rulings made by the highest church governing body that had considered the matter. In contrast, the Court held that in congregational settings (like the Baptists) there was no higher body above the local church and, thus, the property decision would be made by majority vote of the congregation.
Presbyterian property came before the U.S. Supreme Court again in 1979 (Jones v. Wolj), when disagreements about women’s ordination and other social issues led a congregation to withdraw. In that case, the Court affirmed the traditional rule from Watson v. Jones, regarding deference to higher church governing bodies. However, the Court also held that civil courts may resolve church property disputes by referring to state statutes, corporate charters, property deeds, and other instruments that courts use to address secular property disputes. The Court noted that denominations could easily avoid any uncertainty under this approach by setting out, in their constitutions, express trusts codifying the implied trusts that have always been understood to exist.
As a result of this decision, both predecessor denominations of the Presbyterian Church (U.S.A.) adopted constitutional provisions stating expressly what has always been understood. They did not create any new trust interests; rather, they codified an implied trust grounded in centuries of Presbyterian ecclesiology. Upon reunion of the Presbyterian Church in the United States and the United Presbyterian Church in the United States of America 1983, these trust and related provisions were carried over into Chapter VIII of the Book of Order.
The Legal Memorandum that some have found controversial briefly sets out a summary of this history and its practical implications today. This memo suggests ways to ensure that secular courts understand our ecclesiology and the relevant provisions of the Constitution in which that is reflected. We understand that Presbyterians have diverse opinions and that some will continue to have concerns these two resources were created. However, these documents were prepared in order to help presbyteries respond pastorally and appropriately, as provided in our Constitution, when congregations are experiencing difficulty. We trust they will be helpful to that end.
Director Department of Constitutional Service
Office of the General Assembly
Presbyterian Church (U.S.A.)
General Counsel, Office of Legal Services
General Assembly Council
Presbyterian Church (U.S.A.)
1 The Polity Memorandum is titled ‘Processes for use by presbyteries in responding to congregations seeking to withdraw.’ The Legal Memorandum is titled ‘Church Property Disputes: A Resource for those Representing Presbyterian Church (U.S.A.) Presbyteries and True Churches in the Civil Courts.’
2 The Department of Constitutional Services has produced a number of companion resources to assist presbvteries in dealing, with such situations: Advisory Opinions # 17 (http://www.pcusa.org/constitutionalservices/ad-op/note17.htm), and 19 (http://www.pcusa.org/constitutionalservices/ad-op/note19.htm), and Constitutional Musing # 12 (http://www.pcusa.org/constitutionalservices/musings/note12.htm)
3 ‘These points are discussed very thoughtfully and at some length in a statement by the 1990 General Assembly (Minutes, Part 1, pp. 248-52, adoption minuted id. at pp. 37-39).
4 Polity Memorandum, p.7.