Two sides of church property
dispute and fidelity to beliefs
By James D. Berkley, The Layman, February 12, 2009
MALIBU, Calif. – “What does a minister or member do when he or she believes the national church has violated its own principles?” The question came out of the audience at a conference on church property law at the Pepperdine University School of Law in Malibu, California, on Jan. 30.
Retired presbytery executive James H. Miller and Lynn E. Moyer.
The answer was stern and to the point. “Folks are in the wrong church if they disagree with the denomination,” declared the Rev. James H. Miller, retired presbytery executive of Albany Presbytery in the Presbyterian Church (USA).
The questioner persisted: “So if you have a 52-48 split in a national vote, the 48 percent should leave?” Miller had little to say in response, although he obviously was uncomfortable with the implications of his own pronouncement. “We need local option,” he finally concluded.
Miller was part of a two-person panel assigned the task of sharing their personal experience with congregations seeking to change denominational affiliation. While other attorneys and law professors at the conference provided legal opinions, Miller and canon law attorney Lynn E. Moyer were asked to tell their stories. Moyer serves as Chancellor to the All Saints Church in Long Beach, Calif., and serves on its vestry. All Saints is formerly an Episcopal congregation but has realigned itself with the American Anglican Council.
Change your beliefs or quietly leave – alone.
“My role as executive presbyter carried a lot of the responsibilities of a bishop, but none of the authority,” Miller began his case study of an event from the mid 1970s in Albany Presbytery. “Pastors and certain elders of seven out of eighty-some churches in the presbytery were holding meetings in private to arrange dismissal to another denomination that didn’t allow ordination of women.”
The theological issues at the time involved far more than the ordination of women, but Miller characterized the dispute only in those terms. In his knowledge, Miller said, transfers of a congregation to another denomination had never been done on theological grounds, but rather “by geography or by comity in mergers.”
“First Presbyterian Church in Schenectady became the focus,” Miller recalled, and Miller was pretty certain of the reason for the problem. “A former Schenectady pastor testified about how much the congregation had changed with a new pastor,” he explained. “The pastor plays an enormous influence in a congregation. The pastor draws in people who are likeminded.”
“I know now of three churches considering withdrawal from the denomination,” Miller noted, “but 25 years ago, they would never have considered it.” The difference? Miller left the impression that pastors had wormed their way into leadership to cause dissent. He apparently deemed it impossible for the congregation itself to be genuinely offended by actions of the denomination, without having been led astray by a disloyal pastor.
Between 1977 and 1984, the Schenectady matter played out in presbytery and the courts. “Presbytery voted by a significant margin not to approve the dismissal,” Miller remembered. “Presbytery held open hearings and appointed a new administrative commission with full powers to assume control [of the congregational affairs]. The church sought an injunction, but a Catholic judge stopped it.” Miller appeared to approve of the “Catholic judge’s” sense of hierarchy.
The case made its way up the New York court system, with judgments and reversals. Finally in 1984, the courts concluded in favor of the congregation, citing a state law that churches incorporated prior to 1828 could change denominational affiliation without losing their property. First Presbyterian Church in Schenectady had incorporated in 1809.
Miller’s presbytery lost its case with Schenectady, but other congregations among the seven dissenting churches fared differently, according to Miller. “Another pastor came into my office and said, ‘Here are the keys. We make no claim on the property.’ He started a home church.” The presbytery allowed one dissonant group to stay on the property for ten years, but then removed it and started a new church development on the site.
Why in hierarchical denominations is it so important to remain with the mother church? “It’s a matter of the integrity of oaths of office,” Miller stated firmly. “Presbyterians promise to be governed by our church’s polity and to abide by its discipline. This promise, I submit, is of the same character as oaths of office taken by public officers.”
But don’t circumstances change, sometimes leading to a situation in which the faith and practices once ascribed to become altered or even reversed? What’s a church officer to do when that happens? “You have the opportunity to change beliefs or to quietly leave,” Miller declared flatly. “But you are not permitted to lead a congregation into schism.”
Miller obviously favored the denomination’s interests, not the congregation’s. A legal theory known as “neutral principles of law” allows courts to set aside church hierarchical rule and look at the legal facts of property ownership, such as which organization’s name is on the deeds. But some denominations have created an implied trust that says the denomination holds all of the property for denominational purposes.
“There is a problem when neutral principles exclude internal governance of the church,” Miller argued. In the Schenectady case, “the court allowed the church to disavow its history. The court allowed state-sanctioned schism.”
Miller also argued about the intent of Presbyterians over generations to fund a Presbyterian church. “Church property includes bequests, endowments, and other accumulated assets,” he noted, assets that he felt belonged to the denomination and not the congregation. He then cited an underhanded example of asset manipulation: “One church transferred its endowments to a Decatur, Georgia, group temporarily. It wanted to get the money back to buy the church back from presbytery” after the congregation disassociated itself from the presbytery.
Pharaoh, let my people go!
Lynn Moyer approached the property situation from the vantage point of an active congregational leader, and thus saw the situation in a far different light. “When these [property] determinations are made by others, a person must be willing to do battle just to speak out on faith,” she asserted. “Our battle cry is ‘Pharaoh, let my people go!’” Pharaoh, in Moyer’s situation, would be the Episcopal Diocese of Los Angeles, which recently won a California Supreme Court case that awarded the denomination Moyer’s congregation’s property.
This legal turn of affairs shocked Moyer’s sense of simple fairness. “The funds were donated by and for the local members,” she argued. “They weren’t donated to the Diocese of Los Angeles.” And yet, now the Diocese of Los Angeles holds the upper hand and could throw the All Saints congregation out onto the street to start all over.
But didn’t the congregation choose to leave the diocese? Not according to Moyer. “The oath of office cuts both ways,” she reminded Miller. “We counted on the Episcopal Church to uphold the preamble of its constitution, which begins ‘upholding the historic faith and order.’ There have been over two thousand years of historic faith and order. Now the Episcopal Church has left us! It has departed from the historic faith and order of the Church of Jesus Christ. It has di
vided itself from the millions of Christians from around the world!”
Moyer delved into her history with the troubles in the Episcopal Church. “In 1993 I was a delegate to the local [diocesan] convention,” she recalled. “I read resolutions and bios of people running for election, and I was shocked. The statements were heretical.” Later Moyer presented a resolution that “Holy Scripture is the inerrant Word of God.” “It was hotly debated and defeated,” she recounted.
In 2004, prior to the congregation’s vote to leave the diocese, “We in the west had a conference, and all attendees were asked to sign a statement of faith based on Scripture,” Moyer reported. “Our bishop wanted to come to the conference, but could not come. Why? Because he could not sign the statement of faith!” The bishop, according to Moyer, did not believe what the Episcopal Church had always believed and taught.
Then it became for Moyer’s congregation a question of “How are we going to part?” The diocesan attempt to “reconcile” was no more than “trying to change our mind,” Moyer claimed dismissively. “The tripwire was the consecration of Bishop Robinson.” Robinson was elevated to bishop of New Hampshire, despite leaving his marriage for a homosexual lover. “The congregation – not the pastor – demanded that we could no longer be associated with this heretical church and we would need to officially align with another diocese.” Moyer was obviously countering Miller’s assumption that congregations follow pastors like mere sheep.
“We have not gone renegade,” Moyer said decisively. “We are doing things in the same calm way we have always done them. We put all of our money and life into this church, with the idea that the faith and order [of the Episcopal Church] would not change. So now that we find it objectionable, we stand to lose everything?” The sense of unfairness in her voice was unmistakable.
“The decision to stand firm has been easy for us,” she concluded, “but the consequences have been frightening.”