Expect aggressive defense of property law by PCUSA
By John H. Adams, The Layman Online, January 13, 2005
Having lost his children, wealth and reputation, the bedeviled Job said, “For the thing that I fear comes upon me, and what I dread befalls me” (Job 3:25).
In a like manner, the Presbyterian Church (USA) faces a dread: the test of its right to the property of congregations that wish either to 1) separate from the denomination with their property or 2) simply to revoke the constitutional clause that declares that local congregations hold their property in trust for the denomination.
The major current battleground for this test is California, where the state’s Supreme Court has ruled in a Methodist case that a local congregation can revoke the United Methodist Church’s property trust law.
On Jan. 12, Serone Presbyterian Church, a 33-member Korean Presbyterian Church in Artesia, Calif., after deciding to leave the denomination, asked a California Superior Court judge to approve its revocation of the PCUSA property law and to prevent the Hamni Presbytery from taking over the property.
The judge will determine whether the Serone case meets the same legal criteria as the Methodist case. Based on its past involvement in property cases, in both Presbyterian and other denominations, the PCUSA will not go down without a fight.
The PCUSA is well-armed and ardent in the property issue. The mainline denominations that preceded the PCUSA, which was established in 1983 through the reunion of the Northern and Southern mainline streams of Presbyterianism, have been involved in several key U.S. Supreme Court cases on the property issue. In addition, denominational stated clerks have signed amicus curiae briefs in non-Presbyterian cases in which other denominations with similar property trust clauses went to court.
Furthermore, the PCUSA has published a detailed “legal manual” on church property on its Web site and has, thanks to the 1999 General Assembly, authorization for the Office of the General Assembly to help finance legal challenges in property cases.
The legal manual spells it out bluntly: “[C]ivil governments and courts must not assert ecclesiastical jurisdiction.” The denomination’s property law is spelled out in G-8.0201 of the Book of Order:
- “All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).”
In a denomination that refuses to codify its essential theological beliefs, the writers of the legal manual declare that G-8.0201 is “central … in many respects, [to] the life of the Presbyterian Church (U.S.A.). It establishes, as all Presbyterians know, that our church is not congregational in its structure. It is connectional.”
The PCUSA views with great alarm the possibility that civil courts would nullify the denomination’s property law.
“If courts are not willing to enforce the UMC’s ecclesiastical constitutional provisions regarding retention of local church property, the Presbyterian Church (U.S.A.) … and other hierarchical churches risk losing to breakaway congregations real and personal property contributed by generations of members to promote the faith and mission of the whole church,” Stated Clerk Clifton Kirkpatrick said in a Wisconsin Supreme Court case involving a property dispute in a Methodist case (Wisconsin Conference Board of Trustees, United Methodist Church, v. Ronald Culver et al).
“Hierarchial” is a word that many Presbyterians regard as politically incorrect when applied to relationships within the church. But it is emphasized in the Wisconsin brief, which declares that the PCUSA presbytery “has much of the authority that is possessed by individual bishops in Roman Catholic, Episcopal and House of Prayer polities.”
In 1994, former Stated Clerk James Andrews submitted an amicus curiae brief with the U.S. Supreme Court in a Russian Orthodox Church property dispute in Massachusetts (The Primate and Bishops Synond, Russian Orthodox Church outside of Russia, v. The Russian Orthodox Church of the Holy Resurrection et al).
He opposed the tendency by lower courts to “congregationalize hierarchial polities.”
“The Presbyterian Church (U.S.A.), the Episcopal Church in the United States of America and other churches have been losing parishes to breakaway congregations because of the refusal by lower courts to enforce the denomination’s right to retain local church property,” Andrews said in the brief. “This has come about because of this Court’s decision fifteen years ago that courts could use ‘neutral principles of law’ to decide ecclesiastical disputes over ownership of church property, but those principles have proved in many instances to be ‘neutral’ in favor of congregationalizing hierarchical polities, contrary to the church’s own self-definition.”
Andrews asked the Supreme Court to uphold the denomination’s right to enforce its property laws. “Repeatedly, lower courts have construed clear and express provisions in church law prohibiting the alienation of church property without the consent of hierarchical authorities as being mere moral and spiritual guidance without legal force or effect on temporal control of property. The instant case is just such an example of judicial disregard of explicit church law and provides this Court an opportunity to clarify and correct the lower courts’ [mis]understanding of the right of hierarchical churches to control their subordinate entities in property as in all other matters.”
Andrews further stated, “The upshot of this chaotic state of the law is that these nation-wide denominations, and others with hierarchical structures, now face a “patchwork” of conflicting decisions in various states, in an area that calls out for certainty so as to avoid chilling First Amendment rights. This Court’s intervention is needed.”
While the stated clerk’s office has asked the civil courts for the right to enforce its property laws, Kirkpatrick has declared numerous times that it is not his responsibility to uphold another PCUSA constitutional law: the denomination’s prohibition against ordaining self-acknowledged, practicing homosexuals.
But there is a substantial difference between the denomination’s property laws and its moral laws. The property laws are about money.
Between 2002 and 2004, five congregations left the PCUSA. In those cases, the denomination, acting through its presbyteries, confiscated one congregation’s property and required payments from the other four – at a total value of cash and property of $3,362,000. That’s an average value of $672,400.
At that average, the value of all property used by the PCUSA’s 11,000 local congregations held in trust for the benefit of the denomination is $7.4 billion.
So far, the PCUSA and other mainline denominations have managed to convince the Supreme Court to uphold their property trust canon law under a precedent established in a property dispute in Louisville, Ky., the headquarters of the PCUSA.
The case is known as Watson v. Jones. The 1871 case is based almost entirely on the First Amendment – the so-called separation of church and state clause. Although there was no property canon law in the Presbyterian Church at that time, the court concluded that the denomination – not a breakaway congregation – had the right to claim the property. The essence of the ruling is that the civil courts should avoid becoming entangled in doctrinal issues.
In another Presbyterian case – Jones v. Wolf, 1979 – the U.S. Supreme Court said, “Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a . . . doctrinal controversy.”
That clause prompted the mainline Presbyterian denominations and other church bodies to update their constitutions by spelling out their property laws.