PCUSA ‘myths’ exposed
at New Wineskins event
By Parker T. Williamson, The Layman, August 12, 2008
ATLANTA – “Shame on them!” said Presbyterian attorney Lloyd Lunceford as he laid bare four “myths” that he said are being promulgated by denominational attorneys and bureaucrats. Lunceford’s remarks were made at an August 6 New Wineskins Association of Churches seminar in Atlanta.
Several church property opinions that emanate from Presbyterian Church (USA) headquarters and are being parroted by presbytery executives are the product of shoddy workmanship, and they are patently false, said Lunceford, a widely recognized church property law expert who has litigated on behalf of congregations in more than 20 states.
Myth #1: ‘Civil litigation is always bad; ecclesiastical negotiation is always good.’
“I’m not here to promote civil litigation,” said Lunceford, “but neither am I here uncritically to disparage it. In some environments negotiation alone, without the possible protection afforded by the civil courts, can be a recipe for disaster.”
Lunceford cited legal strategy memoranda “filled with draconian tactics” that have been distributed by the denomination’s national office. “Sadly, the ecclesiastical landscape today is often marked by one side misrepresenting the law in order to lay claim on property belonging to another … Pastoral letters are emailed in the afternoon offering discussion, but before a reply letter can be sent, an already-prepared eviction suit is filed the next morning … Administrative commissions are appointed to remove ministers and elders for the ‘sin’ of exploring the possibility of denominational realignment (a right which the Book of Order expressly provides for).”
In the kind of environment that has been spawned by such tactics, Lunceford said “a local church … may feel compelled to consider seeking civil court protection.”
Lunceford challenged the view of those who believe that the Bible forbids civil court action in church property disputes. Paul’s admonition in I Corinthians 6 is often quoted to support this point of view, he said. Citing support from John Calvin’s commentary on the passage, Lunceford argued that a careful reading of Scripture reveals no universal prohibition against civil action.
Lunceford quoted Calvin: “(a) a lawsuit is not evil in itself but only is rendered corrupt by abuse; (b) that God has a purposes for appointed courts of civil justice and that through them the pious may know how far their liberties extend, and; (c) the audacity of wrongdoers would not be repressed if they were not subjected to legal constraints.”
Chapter 6 in I Corinthians refers to “personal grievances which one individual believer may have against another believer, and a desire to seek personal vindication,” said Lunceford. “None of these aspects, however, are present in a typical declaratory judgment action concerning church property.”
Lunceford observed that typically, the parties in such civil actions are “legal constructs,” not individuals. One party is often a board of trustees that has legal duties and fiduciary responsibilities “to protect the interests not of themselves but of others.” The other party is typically “not an individual or a believer, but an ecclesiastical version of a political subdivision – an administrative subunit of a larger human creation, a denomination, that is distinct from the larger Church itself.”
Lunceford chided Christians, including some within the renewal movement, who have called all church property lawsuits “disgraceful.” “Certainly the sinfulness of man which causes strife, and some litigation tactics which have been reported, are disgraceful. But a civil lawsuit is by itself nothing more than an inanimate vehicle to resolve a disagreement by appealing to an impartial judge.”
That impartiality, said Lunceford, is often missing when a local church seeks resolution through negotiations with denominational officials. “An ecclesiastical forum, whether presbytery, synod or General Assembly, has a financial interest in the outcome – the denomination is the claimed beneficiary of the alleged trust! Even secular ethics would ordinarily require recusal. Imagine if the shoe were on the other foot. Would a presbytery be willing to let a disputed property matter with a local church be decided by a panel selected entirely by the local church? Of course not!”
“Here in America, property rights are not determined by ecclesiastical edicts, as if this were 14th century France,” said Lunceford. “I am here to tell you that the rule of law is a wonderful thing. An independent, impartial judiciary is one of the crown jewels in our American way of life. Equal justice under the law is certainly preferable to its historical predecessors: trial by sword, trial by ordeal, the divine right of kings, or ecclesiastical edicts that would control temporal matters.”
Myth #2: ‘You can only leave the PCUSA if the presbytery gives you permission.’
Lunceford cited “Advisory Opinion #19,” a document issued by the Office of the General Assembly that says a local church cannot unilaterally depart from the denomination because denominational membership is not by voluntary association. According to this view, said Lunceford, “departure by a local congregation can only be by that congregation petitioning the presbytery for ‘dismissal’ and the presbytery granting its permission.”
“This view is wrong,” said Lunceford. “It is based on bad theology and faulty logic. It is contrary to law, and it is contrary to the Book of Order itself.”
Bad theology and faulty logic: “This erroneous view is based on the proposition that because the invisible and universal Church is an organic body called into existence by God, and therefore not a matter of human choice only, there can be no right of choice by a particular church of the PCUSA to depart from the PCUSA.” Lunceford said this view “incorrectly equates the PCUSA with the invisible or universal Church. And it then incorrectly equates a person’s individual membership in the universal Church with collective membership by a local church in a humanly-originated denomination.”
Contrary to law: Lunceford said that those who think a congregation can only leave the PCUSA with PCUSA’s permission “would do well not to forget the ‘USA’ in PCUSA.” He reminded his audience that its church members live in a country that protects freedoms of speech, religion and assembly. He cited Supreme Court decisions that affirm the right of a congregation not only to associate with whomever it chooses, but its corollary, namely, the right not to associate. More than one court has acknowledged “the voluntary nature of denominational membership by local churches,” said Lunceford.
“If a Nazarene church wants to become a Baptist church, or a Methodist church wants to become a Lutheran church, or a Presbyterian church wants to become a different brand of Presbyterian church, they are all at liberty to do so in the United States without having to first obtain somebody else’s permission,” he said.
Not only is the denomination’s position contrary to civil law, it also violates the PCUSA Constitution, he said. Quoting from a host of General Assembly Permanent Judicial Commission decisions, Lunceford showed that “the Constitution does not prohibit a congregation from disaffiliating.”
Lunceford said that the denomination’s Book of Order (G-11.0103i) grants authority to a presbytery to ‘divide, dismiss or dissolve’ churches, but that clause “can only be rightly interpreted as a limitation on other PCUSA ‘governing bodies,’ defined elsewhere in the Book of Order as session, synod and General Assembly.” That means, said Lunceford, that only a presbytery can take those specified actions, and it is perfectly permissible for a congregation to reques
t that the presbytery do so. But the fact that there is a constitutionally permissible dismissal process does not prohibit the congregation from acting on its own to disaffiliate from the PCUSA.
Nothing in the Book of Order prohibits a congregation from choosing to affiliate with another denomination, said Lunceford, “nor, under the laws of the United States could it do so.”
Myth #3: ‘A property trust in favor of the national denomination over a local church property is essential to Presbyterian connectionalism and inherent in Presbyterianism since its 16th Century inception.’
Lunceford said that this claim, made by denominational lawyers Mark Tammen and Eric Graninger in an article that they wrote for The Presbyterian Outlook is spurious. To Lunceford’s amazement, the denominational attorneys cited a U.S. Supreme Court case, Watson v. Jones, 80 U.S.679 (1871), in support of their thesis.
“Nothing could be further from the truth,” said Lunceford. “… The Book of Order asserts an alleged trust for the use and benefit of the PCUSA, the national denomination. In stark contrast to this, though, the U.S. Supreme Court in Watson instead expressly rejected the proposition that a trust always exists in Presbyterianism in favor of the national denomination. Citing Watson as somehow supporting their thesis stands Watson on its head!”
“The U.S. Supreme Court long ago in 1871 rejected the notion that an enforceable property trust exists always for the benefit of the national denomination, and thus expressly rejected the tandem thesis that such a trust is inherent in what it means to be Presbyterian or is somehow essential to Presbyterian connectionalism,” said Lunceford. The two denominational lawyers’ assertion to the contrary “is pure invention,” he said, speculating that at the very least, the lawyers didn’t read far enough into the Watson decision to reach its conclusion.
The PCUSA lawyers’ invention, said Lunceford “has been asserted either unknowingly, in ignorance, or sadly, knowingly, for momentary convenience – by those who would try to deceive others into believing that confiscating property that has been bought and paid for by others and titled in another’s name is supported by the weight of U.S. Supreme Court authority and is somehow godly or Biblical. Either way, shame on them!”
Myth #4: ‘Following adoption by the PCUSA (and its predecessors) of trust clauses in their denominated constitutions such clauses are binding on member churches.’
“The U.S. Supreme Court, in Jones v. Wolf, 443 U.S.595 (1979), made it clear that any trust claims in denominational constitutions must be the product of mutual consent,” said Lunceford. “Jones did not allow national denominations to act by ecclesiastical fiat to unilaterally expropriate locally owned property. Jones merely recommended mutual, pre-dispute agreements in some form ordinarily recognized by the civil law as enforceable.”
So the key question, according to Lunceford, is whether a local church that holds title to its property agreed in writing to place its property in trust for the denomination. The mere fact that the presbytery of which the local church is a part agreed is not enough, he said.
“Of course, PCUSA officials argue that the local church corporations are subject to the PCUSA’s Book of Order – as the Book of Order not surprisingly claims for itself,” said Lunceford. “However, under the law of every state in the Union a local religious corporation, formed by the state, is a separate legal entity from its corresponding local congregation. The local corporation has separate functions and powers, like holding title to local church property. Accordingly, courts that follow neutral principles of law have typically rejected attempts by national denominations to use self-dealing ecclesiastical pronouncements to control civil corporations.”
At the conclusion of Lunceford’s presentation, he was peppered with questions, many of which related to specific local church situations. The attorney warned that because trust and property laws are state laws, there can be no generic, one-size-fits-all answer to such legal questions. He urged congregational leaders who are concerned about such matters to obtain competent legal counsel.
Going to court may be a last resort, said Lunceford, and in many cases, the fact that a local church has prepared its pleadings brings positive results during pre-trial negotiations with their presbytery. Churches that are prepared to argue their case in court often achieve the best chance to avoid it, he said.