The Presbyterian Church (USA) has selectively disseminated two "privileged and confidential" documents by denominational lawyers calling on presbyteries to use draconian measures when claiming local church property.
The tone of the documents is reflected in the words they use to describe the parties: the "true church" – meaning those who submit to the government and decisions of the PCUSA – versus the "schismatics" – meaning those who believe the denomination has abandoned its Biblical and Reformed roots. One recommendation for presbytery representatives is to portray themselves as the aggrieved party embattling the ungodly – "keep the presbytery in a 'defensive' secular legal posture. (Let the schismatics seek Caesar's help.)"
That proposal is interesting in that most litigation in church property disputes is begun by presbyteries filing civil complaints and congregations having to defend themselves.
'Spiritual language'
The documents also suggest that presbyteries use "spiritual language" in staking their claims to local church property.
They call for aggressive administrative and/or legal measures designed to intimidate dissenting congregations from attempting to leave the denomination with the property paid for by their members.
The documents suggest that if the presbytery learns that a congregational majority is inclined to leave the denomination, it should look for a "loyal minority" in the congregation and declare it the "true church" with rights to the property.
If a loyal minority cannot be found, denominational lawyers suggest that the presbytery can simply declare the congregation dissolved and take the property.
One document is titled,
"Church Property Disputes: A Resource for those Representing Presbyterian Church (U.S.A.) Presbyteries and True Churches in the Civil Courts." Authorship is attributed to the PCUSA's Office of Legal Services, but the name of Eric Graninger, general counsel to the PCUSA, is also listed at the top of the front page as a contact person.
The second document is described as
"Processes for use by presbyteries in responding to congregations seeking to withdraw." It concludes with a notation that it was prepared in September 2005 by Mark Tammen, director of the Department of Constitutional Services in the Office of the General Assembly. Tammen, a Presbyterian minister and a lawyer, is Stated Clerk Clifton Kirkpatrick's right-hand legal aide.
'Privileged and confidential'
Both documents include the following underlined and capitalized statement at the top right of their front pages: "
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK COMMUNICATION." The 27-page "Church Property Disputes" document also states,
"This is a legal strategy memorandum. Do not copy or circulate. Call Eric Graninger, General Counsel, at 1-888-728-7228, x 539 if you have questions."
The two documents were mailed anonymously and without comment to The Presbyterian Lay Committee. Contacted by telephone this afternoon, Tammen said he was familiar with documents as decribed on the front pages of those received by the Lay Committee, but he said he would not comment on or validate those copies.
"My job is to hold the church together," he said, contending that the Lay Committee was trying to cause schism.
In January, denominational leaders and their attorneys held a private meeting to discuss property issues with presbytery executives.
The Layman asked to be allowed to cover that meeting, but was informed that it was privileged and confidential. It is not known whether the two documents were distributed at that meeting.
Presbyteries are already clamping down
However, some of the recommendations in the documents have already been implemented by presbyteries. The
Presbytery of Eastern Oklahoma filed affidavits in the county courts where its congregations are located asserting ultimate ownership of the local church properties.
Through an administrative commission, the Presbytery of Charlotte recently tried to force
First Presbyterian Church in Harrisburg, N.C., to revise its articles of incorporation to acknowledge that the congregation held its property in trust for the benefit of the denomination. After the congregation voted overwhelmingly not to revise its 39-year-old charter, the interim minister serving the congregation wrote a column in the church's newsletter claiming the vote violated the constitution of the Presbyterian Church (USA). There is no constitutional requirement that a congregation acquiesce through its incorporation papers to the property trust clause in Chapter 8 of the
Book of Order.
Upon learning that the congregation of
Riverside Presbyterian Church in Lynn Grove, Iowa, had voted unanimously to leave the PCUSA, Richard Francis, the presbytery's moderator, called a special meeting with the purpose of appointing an administrative commission, possibly to take over governance of the church.
A threat to the universal Church?
The document described as "Processes for use by presbyteries …" includes the prevailing view of both works:
- "The Office of the General Assembly is aware of Presbyterians who feel compelled not only to abandon their vows and promises, but who are willing also to rend the fabric of the church and sinfully threaten the peace and unity of Christ's Church."
How Presbyterians leaving the PCUSA might "sinfully threaten the peace and unity of Christ's Church" – meaning the universal Church – by affiliating with a more Christ-centered, Biblically grounded alternative is not explained. Neither does either document address the Reformation, which gave birth to Presbyterianism and other Protestant bodies whose adherents left the Roman Catholic Church.
But one thing is made emphatically clear in both documents. For purposes of property control and discipline, the documents repeatedly assert that the Presbyterian Church (USA) is a hierarchical church and its members must follow the dictates of its governing body. The papers do not use a theological justification for staking claim to local property or to hierarchical rule.
But they do propose psychological tactics – including one that might be used to divide a local congregation into two camps, the newer members and dead members. "Demonstrate to the court it is the presbytery that keeps the faith with Presbyterians who, in the past, gave their monies, work and hope to create a Presbyterian Church in this place to perpetuate the faith of the Presbyterian Church … It is improper and unfair to let present members 'break the chain' between founding Presbyterians of the past and those of the future."
Because of massive membership losses – including a record 48,484 in 2005 and the denomination's projected 85,000 loss in 2006 – the PCUSA is becoming grayer and depending more on the past gifts of Presbyterians who gave their money long before such provoking issues as those approved by the 2006 General Assembly. Lawyers for the denomination know they will never testify that their gifts are now being used contrary to their wishes.
The scavenger hunt
On pages 12-13 of the "Church Property Disputes" document, the writers recommend that presbytery officials conduct a scavenger hunt for evidences of a congregation's past and present identification with the denomination. They list 22 different things to check – ranging from deeds to hymnals.
Others include: Is Presbyterian etched into the cornerstone of your church? Have you used the Presbyterian logo on your letterhead? Did you use Presbyterian hymnals, attend Presbyterian camps, pay per capita, acquire benefits from the presbytery (funds for building, lower insurance rates), etc. There is even reference to worship style as a measure of keeping faith. Presbytery officials are asked to determine, "Are the worship activities of the local church consistent with those of the general church? This factor is challenging within the PCUSA because of the diversity in worship styles."
Apparently, although unstated, this list would be used as evidence in court as to whether a congregation has been historically identified with the PCUSA.
Distinctives in two papers
While the two papers emphasize a common purpose – protecting the denomination's claim to local church property – they do have their distinctives. "Processes for use by presbyteries ..." focuses on administrative and disciplinary provisions in the
Book of Order and disputes that have been handled by higher governing bodies and their judicial commissions.
The overriding issue in "Church Property Courts" is preparing presbyteries for litigation. It calls for preparation to build a civil case, hiring the right kind of attorney, picking the right kind of judge and compiling evidence favorable to the denomination's claim. The document gives brief summaries of key U.S. Supreme Court rulings and other civil court decisions in property disputes. Most of those rulings are also reviewed, and more thoroughly, in the new Reformation Press book titled
A Guide to Church Property Law: Theological, Constitutional and Practical Considerations.
In both cases, the two denominational documents spin their assessments in a way that is most compatible with chapter 8 of the
Book of Order, which includes the property trust clause.
Points made in 'Processes'
Some of the points made in "Processes for use by presbyteries …" include:
- "The purpose of the Trust Clause is to support the purposes and mission of the particular church as a part of the Presbyterian Church (U.S.A.)" Page 1
- "The Office of the General Assembly recognizes that currently there are deep and profound differences of conviction on a variety of topics in the church. When it comes to voicing those differences, we have previously drawn a clear distinction between dissent, which is always constitutionally protected; and defiance, which is never, ever protected." Page 2
- "There are also times when an individual finds it impossible to go along with the majority." If that individual finds his conscience will allow him neither to "actively concur with or passively submit to" a decision, he [she] … shall peacefully withdraw from our communion without attempting to make any schism."
- "If schism is likely, use an administrative commission." Page 3
- "[T]he presbytery should be clear that the commission may assume jurisdiction of the session upon some triggering event or action of the session." Page 7
- "The presbytery can often identify an action that would further steps toward schism and direct the minister not to do them." When a minister "persists in a work disapproved by" the presbytery, the presbytery "may assume the minister has rejounced the jurisdiction of this church." Page 8
- "If a minister has already engaged in an active advocacy of schism … then the presbytery must proceed to appoint an investigating committee" to consider disciplinary action. Page 9
- "If there is a schism within the membership of a particular church and the presbytery is unable to effect a reconciliation or a division into separate churches within the Presbyterian Church (U.S.A), the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church …" Page 12
- Working with its administrative commission, the presbytery has a number of options for dealing with congregations in property disputes: It can dissolve the congregation, and use the assets for "starting a new immigrant fellowship;" it could enter into a "long-term lease with the schismatic group;" it can sell the property to the "splinter group." Page 14
Points made in 'Church Property Disputes'
- "The majority vote of a congregation is presumed to control, except in a hierarchical church the majority may be overcome where the church charter or denominational constitution has established a property trust or other means to decide the issue." Page 2
- "[I]f your state follows a basic hierarchical deference rule, then it will be most important to demonstrate the PCUSA as a hierarchical church and show the court the central authority of the presbytery in making church property decisions. If your state applies the neutral principles doctrine, then it will be important to note all hierarchical references in the deeds, the local church charter and especially emphasize the church property trust … If your state applies the third option [majority] rule, it is an uphill battle." Pages 2-3
- "The Office of the Stated Clerk of the General Assembly has some funds available to assist presbyteries when a church is in schism or its property is being used contrary to the Constitution." Page 3
- "When a schismatic faction has failed to appeal the rulings of the presbytery, point this out to the court." By not exercising their right to appeal rulings, local congregations fail to exhaust available agency and administrative remedies. "Because this is a common concept in the civil law, judges should understand this is a reason to dismiss the case as against the schismatics because they failed to exhaust their remedies …" Page 4
- "Certainly, the Presbyterian Church (U.S.A.) (PCUSA) does not refer to itself as a hierarchical church. When speaking to a civil court, however, it is important to use the language the court uses. … Firmly present the PCUSA to the court as a hierarchical church." Page 5
- The document offers the denomination's interpretation of G-8.0701, which allowed congregations to approve an exemption from some provisions of the property chapter. "Bear in mind, churches that exercised the option opted out of G-8.050 [a clause that prohibited congregations from encumbering or selling property without presbytery approval] and did not opt out of the property trust clause (G-8.0201) or the balance of Chapter VIII. Neither the UPCUSA or the PCUS ever had provisions whereby a congregation could unilaterally leave with church property." Page 10
Most of the remaining pages in the document are brief synopses and assessments of court decisions.