Lay Committee files amicus brief
with Virginia Supreme Court
By Parker T. Williamson, The Layman, February 3, 2010
The Presbyterian Lay Committee has joined the American Anglican Council and the Association for Church Renewal in an amicus curiae brief before the Supreme Court of Virginia.
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Filed on Feb. 1, the brief supports a cluster of Virginia congregations that left the Episcopal Church (USA) (TEC) to affiliate with The Convocation of Anglicans in North America (CANA) and are defending the title to their property against claims by the TEC. The amicus, or “friend of the court,” brief was a collaborative effort, authored by Kenneth Starr, dean of Pepperdine Law School, Robert Cochran, professor and associate dean at Pepperdine Law School, Lay Committee board member Forrest Norman, an attorney from Cleveland, Ohio, and Washington, D.C. attorney C. Kevin Marshall with the firm of Jones Day.
The TEC is claiming property owned by its departing congregations on the basis of its Dennis Canon, an ecclesiastical statute adopted in 1979, purporting to impose a trust on all local church property in favor of the denomination. Virginia’s CANA congregations argue that the Dennis Canon does not meet Virginia’s criteria for a “legally cognizable” trust. The lower courts have ruled in favor of the CANA congregations, holding the Dennis Canon does not establish a trust in favor of the denomination.
A ‘frivolous’ claim
“Translated into secular trust law,” declared the brief, “the appellants (TEC) are arguing that an organization may create a trust interest in property legally owned by another and render itself the beneficiary of the trust … Such a claim would be frivolous if brought by a secular body and evaluated under general Virginia trust law.”
The brief argues that church property disputes should be treated in the same way that any other parties’ property disputes are handled by the courts, namely, according to “neutral principles of law.”
Three forms of trusts are recognized by Virginia, “express,” “resulting” and “constructive.” An express trust is formed only when the owner of a property, “the settler, not the beneficiary, plainly manifests an intention to create it,” said the brief. In each of CANA’s Virginia congregations, the local church holds clear title to its property, and in no instance did any of these congregations “plainly manifest an intention” to place its property in trust for the TEC.
“A beneficiary cannot unilaterally create a trust in property legally owned by another,” the brief declared.
No implied trust
The TEC argues that its congregations consented to the Dennis Canon trust simply by virtue of the fact that they were members of the TEC at the time the canon was adopted. But the brief challenged this allegation: “The General Convention of the Episcopal Church, which creates the Episcopal Church’s canons, does not even include representation of congregations. Rather, it represents only dioceses, through their bishops and deputies … The actions of such bodies cannot be said to manifest an intention of any particular congregation.”
The TEC argues that by remaining in the denomination after the Dennis Canon was adopted in 1979, its congregations gave tacit approval to the trust. But the brief challenges the notion that merely by remaining members of the TEC, the congregations “plainly manifest an intention” to place their property in trust, as would be required for the creation of an express trust.
The sound of silence
“The plaintiffs are reduced to essentially arguing that the CANA congregations plainly manifested an intention to encumber their property by inaction – by failing to withdraw from the denomination and its activities. But continued association and participation is not the type of ‘plainly manifest’ intention that the law requires for encumbering one’s property with a trust … The appellants seek to turn trust law on its head, using what amounts to a purported lack of manifestation of an intention not to have one’s property encumbered as somehow affirmatively manifesting an intention that it be encumbered.”
The amicus brief lays out the illogical implications of the TEC’s tacit approval argument: “The Episcopal Church and diocese’s argument is no different than if the Rotary Club’s governing body adopted a bylaw granting itself a beneficial interest in all of its members’ properties, and then claimed that the members somehow manifested an intention to agree to the encumbrance if they did not quit the club… Such organizations might expel members unwilling to affirmatively encumber their property, but could not plausibly claim an interest in it by members’ failure to withdraw on their own.”
Citing two additional types of trust – resulting and constructive trusts – the brief shows that the facts render them inapplicable to the church property dispute. There was no “monetary contribution” that must be present in a resulting trust, and there is no evidence of “fraud” that must be present in a constructive trust.
No ‘establishment’ of religion
Not only does TEC’s purported trust fail to meet the criteria for a valid trust in Virginia, the brief said, but TEC’s argument that it be held to a different property law standard than that of the state’s secular entities “raises constitutional questions,” namely, favoritism by a secular court toward the edicts of a denominational hierarchy over the interests of its congregations. “The Supreme Court has recognized that the Establishment Clause is implicated if governments delegate to religious institutions authority over the rights of third parties,” the brief said.
“It is inconceivable that the special rights that a denomination seeks here would be extended to secular organizations,” the brief said. “The power to decide who owns property – a core power of civil government – would be vested in religious bodies. As then-Justice (William) Rehnquist sternly warned, that power could readily be employed for hierarchies’ own particular purposes, such as to enforce their orthodoxy and stifle dissent.”
“In sum,” said the brief, “allowing religious organizations to unilaterally declare trusts in their own favor may well unconstitutionally delegate governmental authority to religious institutions. This delegation would also amount to a grant of power to religious denominations that no other organizations enjoy over their members. Such delegation and preferential treatment, which appellants seek here, at the very least raises a problem under the Establishment Clause.”
Virginia’s ‘division statute’
The brief also defends Virginia’s Section 57-9 statute, commonly called “the division statute,” which states that when a denomination experiences a split, the property claims of a local church will be decided by majority rule from within that church.
“Virginia’s scheme avoids questions of religious doctrine and canon law by looking first to the title of the property to see if it is titled in the name of a bishop or other denominational officer; failing that, the law defers to a majority vote of the congregation,” said the brief. The amici argue that this default deference to the congregational majority is not only “neutral,” but “it is eminently reasonable because [it is] consistent with American traditions of majority democratic rule …”
“Far from discriminating against hierarchies in the name of majority rule and local control, Section 57-9 merely, and reasonably, enables the majority to determine between competing hierarchies of a divided denomination.”
Historic churches
Among the Virginia congregations that are defending themselves in this lawsuit is the historic Truro Church, home church to President George Washington whom the congregation named vestryman in 1762. The Truro congregation voted by a 92-percent majority to leave TEC in 2006 when it could no longer tolerate what it believed were numerous denominational departures from Biblical faith and ethics.
Another prominent party to the lawsuit is The Falls Church. Founded in 1732 near the Potomac River waterfalls, the congregation listed as members many of America’s revolutionary leaders, including Francis Scott Key, who served as a lay reader in the 1800s. The Falls Church voted to leave TEC in 2006, while calling on that denomination “to return to its historic Anglican roots in orthodox theology and Biblical authority…”
Similar Interests
The Presbyterian Lay Committee became an amici in this Episcopal Church case because the Episcopal Dennis Canon and a purported trust that the Presbyterian Church (USA) has tried to impose on its congregations are strikingly similar, as are constitutional arguments against their validity. “Property rights are a matter of state law and civil governance,” Norman said. “Ecclesiastical declarations cannot alter property ownership rights if they do not comply with the civil laws which define those property rights. Moreover,” he noted, “one must question the morality of holding hostage individuals and local churches with self declared property trusts, over theological differences.”
The Lay Committee has filed amicus curiae briefs in the U.S. Supreme Court, and the state Supreme Courts of California, South Carolina, Georgia and now Virginia in pursuit of its commitment to defend the property interests of Presbyterian congregations.