Who owns church property in deed?
By James D. Berkley, The Layman, January 29, 2009
“I would like to see a deeper understanding by persons on both sides for the positions that others might take.” Professor Robert F. Cochran, Jr., was describing his goals for a conference on church property law to be held Friday, January 30, at the Pepperdine School of Law in Malibu, Calif. Obviously the conference is intended to be a broad-minded academic colloquium, rather than a one-sided partisan training session.
“You have complicated issues raised within the United States Constitution,” Cochran explained. “You’ve got a free-exercise [of religion] clause, but that means free exercise on both sides.” Recently, some congregations and mainline denominations have been at odds about the ownership of a congregation’s property when the congregation decides it must sever its relationship with the denomination.
“On the one hand, congregations argue that their properties are being taken away, and they are no longer able to worship in the churches they built,” Cochran advised. “But denominations argue that they should be able to form and place a congregation and then not have it taken out of the denomination. Whichever side wins, the other side can claim that the courts are establishing a preferred form of church government.”
Between 100 and 150 pastors, lawyers, professors, church leaders, denominational representatives, and students will gather at the Malibu campus of Pepperdine School of Law for the conference titled “Religious Liberty and Religious Property Disputes: Who Owns the Lord’s House?” Cochran, the Louis D. Brandeis Professor of Law and also the director of the Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics at Pepperdine, is coordinating the conference.
He will be joined as one of the speakers from Pepperdine by Kenneth W. Starr, who is the dean and professor of law at Pepperdine School of Law. Dean Starr, who has argued 25 cases before the Supreme Court, 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.
Pepperdine’s involvement in church property law has both academic and personal dimensions for Cochran and for Starr. Each year, Cochran’s institute focuses a conference on some aspect of law and religion, and Cochran chose this year’s property-law topic. “I had close friends at both Falls Church [a large Episcopal Church in Virginia] and St. James Anglican Church in Newport Beach [California],” Cochran explained, “and I knew what they had been going through. Both congregations had very big cases in the works.” So there was personal interest involved in the choice of topic.
But there was also the intriguing academic aspect of the disputes: Who does rightfully own the property? “For an academic conference of this sort, we worked hard to bring in people on both sides of the issue, scholars with thoughtful work in the area.”
Starr also has personal as well as academic interest in the issues. Together, Starr and Cochran filed an amici curiae brief with a State of California Court of Appeal. The brief argued for former Episcopal and now Anglican congregations to have the right to retain their property under “the freedom-fostering Neutral Principles doctrine.” That doctrine allows courts to treat church property ownership as it would the ownership of any other property under dispute, rather than deferring completely to the authority of the ecclesiastical hierarchy.
“The conference will start broadly and talk about the state of religious liberty in the United States,” Cochran noted. “Next will be a panel composed of two people who have experienced the property litigation from different perspectives.” One panel member will be an official in a Presbyterian Church (USA) governing body from which a congregation separated, and the other panel member will be a vestry member of an Episcopal congregation that has separated from its diocese. “These people will give us the facts of what it is really like to go through the experience,” Cochran added.
Another panel will provide lessons learned by three lawyers who have been involved in litigation. They will cover “the first question courts deal with: hierarchical deference or neutral principles,” according to Cochran. “The U.S. Supreme Court has given states authority to pursue either rule.” That thorny subject will be investigated in detail, including a lecture by Starr, who will give further thoughts on a key California Supreme Court decision in the Episcopal congregations’ case. “Dean Starr will also speak about the possibility of the issue getting up to the U.S. Supreme Court,” Cochran added. “It has been a number of years since the subject has come up, and the Supreme Court may allow it to be heard.”
Is there any probability of the courts moving to a single national standard, rather than the dual hierarchical deference and neutral principles standards that are applied fifty separate ways in fifty different states? “That will be discussed at the conference,” Cochran teased. “This court seems content to let the states adopt whatever rule they want. They’ve done that on a number of other issues on religious liberty. But there are also strong arguments for a uniform standard. You have national and even worldwide denominations that have to deal with fifty different rules on property. In the business sector, that used to be the case with the commercial code, but now there is one uniform commercial code.”
Churches and governing bodies will want to watch for theories and counter theories brought out in the Pepperdine conference. Even though the Lord owns the Lord’s house, somebody temporal must inevitably hold the keys.
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Interested in learning the availability of Church property.