PCUSA lawyers advise hardline tactics in church property disputes

By John H. Adams

The Layman

 

Originally published Sept. 2006

The Presbyterian Church (USA) has selectively disseminated two “privileged and confidential” documents by denominational lawyers who advise presbyteries to use Draconian measures when claiming local church property.

The tone of the documents is reflected in the words they use to describe the parties: the “true church” – meaning those who submit to the governance and decisions of the PCUSA – versus the “schismatics” – meaning those who believe the denomination has abandoned its Biblical and Reformed roots. One recommendation for presbytery representatives is to portray themselves as the aggrieved party battling the ungodly – “keep the presbytery in a ‘defensive’ secular legal posture. (Let the schismatics seek Caesar’s help.)”

 

‘Spiritual language’

The documents also suggest that presbyteries use “spiritual language” in staking their claims to local church property, but there’s scant reference to Scripture, other than the steely citation about Caesar.

They call for aggressive administrative and/or legal measures designed to intimidate dissenting congregations from attempting to leave the denomination with the property paid for by their members.

The documents suggest that if the presbytery learns that a congregational majority is inclined to leave the denomination, it should look for a “loyal minority” in the congregation and declare it the “true church” with rights to the property.

If a loyal minority cannot be found, denominational lawyers suggest that the presbytery can simply declare the congregation dissolved and take the property.

One document is titled, “Church Property Disputes: A Resource for Those Representing Presbyterian Church (U.S.A.) Presbyteries and True Churches in the Civil Courts.” Authorship is attributed to the PCUSA’s Office of Legal Services, but the name of Eric Graninger, general counsel to the PCUSA, is also listed at the top of the front page as a contact person.

The second document is described as “Processes for use by presbyteries in responding to congregations seeking to withdraw.” It concludes with a notation that it was prepared in September 2005 by Mark Tammen, director of the Department of Constitutional Services in the Office of the General Assembly. Tammen, a Presbyterian minister and a lawyer, is Stated Clerk Clifton Kirkpatrick’s right-hand legal aide.

 

‘Privileged and confidential’

Both documents include the following underlined and capitalized statement at the top right of their front pages: “PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK COMMUNICATION.”

The two documents were mailed anonymously and without comment to The Layman. Tammen said he was familiar with documents as described on the front pages of those received by The Layman, but he said he would not comment on or validate those copies.

“My job is to hold the church together,” he said, contending that the Lay Committee was trying to cause “schism.”

The document described as “Processes for use by presbyteries …” includes the prevailing view of both works: “The Office of the General Assembly is aware of Presbyterians who feel compelled not only to abandon their vows and promises, but who are willing also to rend the fabric of the church and sinfully threaten the peace and unity of Christ’s Church.”

How Presbyterians leaving the PCUSA might “sinfully threaten the peace and unity of Christ’s Church” – meaning the universal Church – by affiliating with a more Christ-centered, Biblically grounded alternative is not explained.

But one thing is made emphatically clear in both documents. For purposes of property control and discipline, the documents repeatedly assert that the Presbyterian Church (USA) is a hierarchical church and its members must follow the dictates of its governing body. The papers do not use a theological justification for staking claim to local property or to hierarchical rule.

But they do propose psychological tactics – including one that might be used to divide a local congregation into two camps, the newer members and dead members. “Demonstrate to the court it is the presbytery that keeps the faith with Presbyterians who, in the past, gave their monies, work and hope to create a Presbyterian Church in this place to perpetuate the faith of the Presbyterian Church … It is improper and unfair to let present members ‘break the chain’ between founding Presbyterians of the past and those of the future.”

 

The scavenger hunt

On pages 12-13 of the “Church Property Disputes” document, the writers recommend that presbytery officials conduct a scavenger hunt for evidences of a congregation’s past and present identification with the denomination. They list 22 different things to check – ranging from deeds to hymnals.

 

Others include: Is Presbyterian etched into the cornerstone of your church? Have you used the Presbyterian logo on your letterhead? Did you use Presbyterian hymnals, attend Presbyterian camps, pay per capita, acquire benefits from the presbytery (funds for building, lower insurance rates), etc. There is even reference to worship style as a measure of keeping faith. Presbytery officials are asked to determine, “Are the worship activities of the local church consistent with those of the general church? This factor is challenging within the PCUSA because of the diversity in worship styles.”

 

Distinctives of the two papers

While the two papers emphasize a common purpose – protecting the denomination’s claim to local church property – they do have their distinctives. “Processes for use by presbyteries …” focuses on administrative and disciplinary provisions in the Book of Order and disputes that have been handled by higher governing bodies and their judicial commissions.

 

The overriding issue in “Church Property Courts” is preparing presbyteries for litigation. It calls for preparation to build a civil case, hiring the right kind of attorney, determining the religious background of potential  judges and compiling evidence favorable to the denomination’s claim. In both cases, the two denominational documents spin their assessments in a way that is most compatible with chapter 8 of the Book of Order, which includes the property trust clause. But the Book of Order (G-11.0103i) gives presbyteries the options “to divide, dismiss or dissolve churches in consultation with their members.”

 

The denomination has also produced documents, including one for the Presbytery of Pittsburgh, that was tailored to explain how to secure disputed local church property in the light of state laws. Jim Mead, executive presbyter, declined to divulge the contents.