From east to west, PCUSA
property claims to be aired
By John H. Adams, The Layman, January 22, 2009
In two events at arenas separated by 3,000 miles and 20 days, lawyers on both sides of such church property disputes as those being waged in the Presbyterian Church (USA) will duke it out.
The scenes and dates will be Pepperdine University, a Christian school affiliated with the Church of Christ, on Jan. 30 and Beulah Presbyterian Church in Churchill, Pa., on Feb. 19.
Depending on which side you’re on, the debate will run hot and cold.
Pepperdine Conference
At Pepperdine, in Malibu, Calif., where wintertime temperatures are typically in the spring-like 70s, the theme question for the all-day conference will be “Who Owns the Lord’s House?” One of the worksheets for the one-day conference is an amicus curiae brief written by Kenneth Starr, dean of the Pepperdine School of Law, and Robert Cochran, a member of the law school faculty and the author of Faith and Law: How Religious Traditions From Calvinism to Islam View American Law.
Presbyterian Convocation
The Pittsburgh Presbytery convocation is titled “Our Freedom of Religion at Risk: A Presbyterian Crisis.” Spearheaded by the remarks of PCUSA lawyer Mark Tammen, the conference will be the legal opposite of Pepperdine’s, just as the Churchill weather is likely to be a far cry from Malibu’s. The convocation will be Web cast live from 2 p.m. to 5:30 p.m. on the Pittsburgh Presbytery Web site, www.pghpresbytery.org.
The difference in the presentations will be substantial.
Neutral principles of law
The Starr-Cochran brief argues that church property disputes should be decided by neutral principles of law and not simply by whether a denomination claims the right to seize a departing congregation’s church and assets because of the denomination’s property trust clause. In Presbyterian cases in 1969 and 1979, the U.S. Supreme Court ruled that state courts may make their decisions after applying non-doctrinal neutral principles based on deeds, incorporation records, bylaws and constitutions. Starr and Cochran say the court’s deference to hierarchical claims is the greater threat to freedom of religion.
Starr served 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.
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.
Hierarchical claims
In a new twist to its hard-ball strategies revealed in the “Louisville Papers,” the PCUSA is now claiming that departing congregations pose a threat to freedom of religion because they are asking civil courts to settle property claims by neutral principles of law. Tammen contends that the PCUSA is upholding freedom of religion by asking courts to recognize the PCUSA as a hierarchical body with the religious freedom to exercise control over congregations and their property.
“Your participation in this convocation is important because the unity and independence of the church are at risk from within and without,” sponsors of the Pennsylvania conference say in their promotional literature. “Ministers, sessions, trustees and congregations encouraging division within the church encourage subordination of the church to the state when they file civil lawsuits against presbyteries.”
The conference’s promotional material argues that the congregations – and not the denomination – are the ones filing lawsuits in civil courts to get their property. Those suits are defensive measures, often accompanied with requests for restraining orders to prevent presbyteries from seizing control of the property. Without the lawsuits, presbyteries could use one of the administrative procedures recommended in Tammen’s “Louisville Papers” – appointing administrative commissions to remove pastors and elders and take over governance of the congregation.
While the denomination often does not initiate lawsuits in property disputes, it does use legal coercion against church trustees, elders and pastors by naming them individually in countersuits. Thus, if state courts rule against a local congregation, its leaders could become personally liable for the PCUSA’s legal costs. Some of those costs have been more than $200,000.
In opposition to neutral principles of law, the “Louisville Papers” recommend that lawyers representing the denomination argue in civil court that the PCUSA, like Roman Catholics and Episcopalians, is a “hierarchical denomination” with full authority to take the property of dissenting congregations. Many of the PCUSA’s own documents declare that the PCUSA is not hierarchical.
The Layman will provide full coverage of the conferences, including a news account and an attorney’s assessment of each.