Attorneys say congregations should prepare to protect assets
By John H. Adams, The Layman Online, June 13, 2006
GROVE CITY, Pa. – Two attorneys who are members of the board of directors of the Presbyterian Lay Committee told participants during a conference at Grove City College that they need legal help to ensure that their congregations maintain control of their church property and assets.
Peggy Hedden of Columbus, Ohio, the chairman and chief executive officer of the Lay Committee, and Forrest A. Norman III of Hudson, Ohio, addressed some of the reasons that evangelicals may separate from the Presbyterian Church (USA) and suggested steps that sessions and congregations may want to take to protect their property.
They did not give legal advice or reveal confidential information about cases involving disputed church property. But they did say that congregations needed to be informed about their states’ trust and property laws and the possibility of revising their congregations’ articles of incorporation and bylaws.
Hedden spoke about the dilemma evangelicals face in a divided denomination. The theme of the Faith and Life Conference, held June 8-11 on the campus of Grove City College, was “Can Two Faiths Embrace One Future?” She talked about a conversation she had with a Covenant Network member that underscored differences between evangelicals and progressives.
“We need to be convinced of two realities,” she said. “There really is a difference between progressives and evangelicals.” She said the greatest differences were over the authority of Scripture and the person and work of Christ.
Terming the differences “irreconcilable,” she said evangelicals and progressives “have two different missions, two different understandings. There is no way we’ll ever be able to work together under the same yoke.”
Hedden suggested that evangelicals learn about the differences by having conversations with Covenant Network members or similar independent Presbyterian groups that are working to end the denomination’s prohibition against ordaining homosexuals as ministers, elders and deacons.
“Don’t talk about homosexuality,” she said. “Talk about the work and person of Jesus Christ.”
She recalled her own conversation with a Covenant Network board member. “We got around to Jesus and what he did. We were talking about miracles, and I mentioned that the angels came and announced the birth of Jesus. He looked like I said the tooth fairy came.”
She said the conversation continued like this:
Covenant Network board member: “You don’t believe there were angels, do you?”
Hedden: “I said yes.”
Covenant Network board member: “That’s just poetry.”
Hedden: “That’s not poetry. That’s description. I mentioned the earthquake and the temple curtain being torn. He looked at me again.”
Covenant Network board member: “You really think that happened?” Hedden: “That’s what really happened.” She said she talked about the importance of the crucifixion.
Covenant Network board member: “Jesus really didn’t know why Jesus was here until right after he was arrested. I think the people who wrote the gospel just put that in there later.”
Hedden told the conference participations that, “You won’t believe what the progressives said about the resurrection, the parting of the Red Sea.”
By meeting with Covenant Network members, she said, “It will begin to dawn on your congregation about the differences, so that when the time comes for a choice, they will be ready to make one.”
Norman, an elder, said pastors must begin preparing their churches by the preaching, teaching and study of the Word of God and theology. In response to a law partner who asked him whether it was schismatic to counsel people on the possibility of leaving the denomination, he said he quoted Dante – “They stuck a spear in my Savior’s side” – and Jesus, who said he came not to grant peace, but division.
“As elders,” he said, “we at least have to consider these contingencies. What I have told my clients is that it is very important to prepare for litigation. In fact, it is important to begin long before the problems begin.”
Norman listed a number of things congregations should do:
- 1. “First, we need to begin preparing a theological assessment of where we stand. That starts with the pastor. He has to advise the congregation where he stands. It’s absolutely necessary to have one congregation.”
- 2. “The elders need to take the forefront in this job. Make sure the people in your congregations know what the issues are,” noting that this could be important in a court’s determination of whether there was “informed consent, a doctrine that permeates the law. Before you go into an operation, a doctor has to describe to you what the risks and benefits are. If you decide that you are going to depart from the denomination, your congregation should not be hoodwinked. The congregation should understand all the reasons behind it.”
- 3. “Our legal system is what is called an adversarial system. A lawyer is an analyst, advocate and adversary. As a client, you will go through the analytical; then as an advocate you will determine if you stand with the faithful. If so, you are likely to become an adversary.”
Norman said he has “serious questions” about the PCUSA’s property trust clause, which says that local congregations hold their property in trust for the benefit of the denomination. Through the presbyteries, the PCUSA has either required separating congregations to pay settlements before being released to another denomination or has filed lawsuits against the congregations to claim their property.
But “trust law varies state by state,” he said. “At the end of this, you have to take a look at your state trust law. And you have to take a little of the trek through the historical documents.”
His list included state trust law, state property law, a congregation’s articles of incorporation and its bylaws. He said a local church needs to determine whether its documents include wording that would assent to property claims by the denomination and whether trust clauses are revocable or irrevocable.
“In the Book of Order, it does not say whether it is to be a revocable or irrevocable trust,” he said.
“In the event there is a denominational division, if for some reason you can no longer remain affiliated with the denomination, provide for that,” he added. “A lot of your people take their tithes and offerings to the church with the hope that they will be maintained for faithful purposes.”
Norman warned that there’s a hard road ahead for any congregation faced with defending its decision to leave the denomination before a civil court because of a lawsuit filed by the denomination.
It could become expensive to have an effective defense against a suit, he said, noting that in one case a church spent $48,000 to defend its ownership of property valued at $50,000.
“There’s an emotional element to litigation,” he added. “You become tense and depressed. It puts a serious strain on you and distracts you from the greater mission of the church. The law is not simple. The denomination will say that when you joined the PCUSA that you tacitly accepted all elements of this Book of Order.”
“But you do have certain rights independent of the denomination,” he concluded.