Pepperdine law conference
will review property disputes
By John H. Adams, The Layman , December 31, 2008
A one-day conference that addresses what is probably the most contentious issue in the Presbyterian Church (USA) – “Who Owns the Lord’s House” – will be held at Pepperdine University in Malibu, Calif., on Jan. 30.
The conference will address other church-state issues as well, but the focus will be on property disputes. Conference literature features two statements about those disputes:
- Some states draw a distinction between hierarchical churches and congregational churches. Courts defer to the decision of the highest authority within hierarchical denominations; and,
- Other states resolve these disputes based on neutral (non-theological) principles where possible. Ownership of property is determined based on the contents of documents (deeds, contracts, etc.) just as it would be resolved in non-religious property disputes.
(See the brochure for more information.)
Kenneth Starr, dean of the law school, and Robert Cochran, his colleague, will be two of the principals. Promotional material for the conference includes an amicus curiae brief they wrote urging California courts to reject hierarchical deference as a basis for settling property disputes and to judge them exclusively by neutral principles of law.
Starr left a federal judgeship to serve in the Office of Independent Counsel to investigate the suicide death of the deputy White House counsel Vince Foster and the Whitewater land transactions by President Bill Clinton. He later submitted the Starr Report to Congress, resulting in Clinton’s impeachment on charges arising from the Monica Lewinsky scandal. In the “Dean’s Message” on the Pepperdine Law School Web site, Starr says the school holds to the “highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership.”
Cochran is the founder of Pepperdine’s Institute on Law, Religion and Ethics, an adjunct to its School of Law. He teaches torts, legal ethics, religion and law and family law. Cochran’s integration of law and Christian faith was featured in a Christianity Today feature in August. “Cochran enthusiastically leads the national Law Professors’ Christian Fellowship, writes and edits a growing body of literature on law and religion, directs Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics (which he founded), and leads a Bible study for law students in his home,” Christianity Today said.
Starr and Cochran submitted their brief to the California Supreme Court in May 2008. Here are some excerpts:
- “This court should now align itself fully with the freedom-fostering neutral principles doctrine.”
- “Since the 1970s, with the encouragement of the United States supreme Court, American courts have favored a neutral principles approach when dealing with religious property disputes.”
- Under neutral principles courts apply familiar (and secular) doctrines that have been developed over the centuries. … Under this non-entanglement approach, judges are empowered to apply a consistent set of standards to determine who owns what and where the parties stand.”
- “[I]t is difficult, if not impossible, to identify any other party to litigation in this country that exercises such sweeping control over its own disputes as that which would be granted to church hierarchies under the Hierarchical Deference rule.”
- “With such power comes the danger of its abuse. As then-Justice [William] Renquist stated in his dissenting opinion in a pre-Jones case, ‘If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness.’”
- “Under the Hierarchical Deference approach, “the courts would be required to enforce a decree seizing all property owned by local congregations, even if it were clearly stated in church documents and government deeds that the property was in fact owned by members of the local congregation. Whether such a result comports with justice is irrelevant under the Hierarchical Deference approach. The courts would be supine before the supreme authority of the church.”
- “In the past, deference-guided tribunals could reasonably assume that such hierarchies would exercise their power for benign purposes. That happy assumption can no longer be indulged. Over the last half century, a wide range of new religious movements has arisen, some with leaders who wield enormous power but are accountable to no one.”
- “Church hierarchies should not be exempt from the normal rules for creating and recording property interests. … Otherwise, congregations which have invested for several decades in their local church may find themselves without a church and without property.”
- “Because virtually all denominations have some form of denominational structure, a danger lurks that the Hierarchical Deference rule will lead to centralized control of myriad congregations.”
- “It is unlikely that those donating to religious congregations made their gifts – especially the capital campaign gift – with the assumption that the denomination could do with them whatever it pleased, which is one of the underlying assumptions of Hierarchical Deference theory. … The church hierarchy should not be able to take the local church property which it has obtained through the faithful giving of its partners. The intent of the giver should be respected, just as it is in other areas of the law.”