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Church property cases and "neutral principles"

The U.S. Supreme Court has just been asked to review a major church property decision. At issue is who owns the land and buildings of 29 formerly Episcopal parishes in South Carolina. Some of these parishes have had their property for a long time—one of these parishes dates back to 1680, about a century before the Episcopal Church even existed as an entity in the United Sates. But notwithstanding this history, and even though the local congregations hold title to all these properties, the South Carolina Supreme Court held 3-2 that all of the properties belong to the national denomination, the Episcopal Church. In other words, the court held that the local congregations didn't really own their property, they just held it it in trust for the national denomination.

What is at issue is much more than the property of these 29 parishes. The case raises a fundamental question about how the First Amendment interacts with church property cases. In Jones v. Wolf, 443 U.S. 595 (1979), the Supreme Court said "neutral principles" may be applied in church property cases. Accordingly, in some jurisdictions courts have held that church property disputes should be resolved using the very same property rules as any other dispute.

In other jurisdictions--including South Carolina--courts have read Jones as requiring them to carve out special rules for ecclesiastical disputes, allowing national churches to claim that local churches hold their property "in trust" for the national church, even though there are no facts that would be sufficient to establish a trust if a church were not involved. In these jurisdictions trust law and real property law are different for churches, in ways that redistribute property away from local congregations toward denominational hierarchies. The scope of the "exception" for churches turns on the internal government structure of the church--or, more precisely, on a court's reading of the internal government structure of the church. There are obvious dangers when the ownership of real property turns on how a judge understands a church's ecclesiastical structure.

This case is an excellent vehicle for resolving a major dispute among state and federal courts over the meaning of Jones and the basic rules for how the First Amendment applies to church property cases. If the "neutral principles" of Jones are compatible with special trust and property rules for churches, the state supreme court's decision should be affirmed by the U.S. Supreme Court. But if--and I think this is the better view--the "neutral principles" of Jones can only be carried into effect with the same trust and property rules in church disputes as in any other kind of dispute, then the state supreme court's decision should be reversed. Either way, this is a cert petition the Court should grant.

NOTES

The cert petition is available here.

An article by Michael McConnell and Luke Goodrich on church property cases--one cited so frequently in the cert petition that it gets passim treatment in the table of authorities--is available here. The other side of the argument emphasizes deference to each religious organization's chosen polity (cf. this article by Rick Garnett).

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  • santamonica811||

    "passim treatment" ???

    What does this mean? Google shows no hits at all. :-(

    I did look up "passim" and got, "Used in academic writing to say that information about a particular subject can be found in various places in a text." That's a pretty cool word, although I have to admit that, in the context you used the term, I don't really understand what it means. I am apparently failing this particular IQ test.

  • Scarecrow Repair & Chippering||

    So .... it's defined in passim, somewhere else in the text? By context? By totality of the circumstances?

  • UVaGrad||

    You're required, in a table of authorities, to list every page an authority appears on: if Smith v. Jones is cited on pages 1, 3, and 5, your table says so.

    But if you cite an authority so often that listing every page would be cumbersome, you just say "passim" instead.

  • santamonica811||

    UVaGrad.
    Much thanks. That explained it perfectly.

    Either they did not teach us that in Legal Writing & Research, or they did, but b/c I never cited any source that frequently, it soon went down the memory hole.

  • loki13||

    "Either they did not teach us that in Legal Writing & Research, or they did, but b/c I never cited any source that frequently, it soon went down the memory hole."

    ????

    I can't remember the last appellate case I had which didn't have passim at least once in the TOA.

    Usually, you're appealing based on a case or a rule or something that is repeatedly mentioned in the text, or at least enough that you don't have to page-cite it.

  • santamonica811||

    Loki,
    I just went back and looked my last 30 appellate cases. Not a single passim in any of them. Not in any of my briefs (not surprisingly, given my earlier posts). But none from County Counsels' briefs. None from any attorneys representing other parties.

    I suspect that this is largely (entirely??) due to the weird and narrow specialty of law in which I did appellate work.

  • TheAmazingEmu||

    I remember covering it, but only vaguely enough that I had to ask someone else what it was called when I needed it for my Table of Contents.

  • Scarecrow Repair & Chippering||

    Thanks too, I reckon, although I was mostly just making an idle joke.

  • Rev. Arthur L. Kirkland||

    The caption inclines 5-1 odds: The theological discussion underlying the dispute involves whether Jesus loved or hated gay people, and in particular whether it was a hatred so obvious that it need not be mentioned in the New Testament. 10-1: The locals were on team Jesus Hates.

  • Eidde||

    I'm not what relevance this has to the legal question, but do you have any links to "the locals" expressing hate of gay people, or attributing such hatred to Jesus?

  • Eidde||

    It didn't take long to find one of the alleged hatey-haters explaining their side of the schism.

    "In a 2006 interview with Time magazine, the Presiding Bishop, the Rt. Rev. Katharine Jefferts-Schori, a strong pluriform proponent claimed that to believe, as Jesus said, that He is "the way the truth and the life no one comes to the Father but through Him," was to put God in an "awfully small box." That denial of Jesus' essential role clearly displayed the difference between traditional and modernist or pluriform Anglicans/Episcopalians....

    "Members of the diocese who voted to leave TEC feel the denomination has moved away from the authority of Scripture and their historic Anglican beliefs. They left us. You may agree with us about this, or you may find that TEC's revisions are appropriate. But whatever you believe, those personal opinions should not prevent us — or others – from practicing our faith.

    "And, since that religious freedom is constitutionally guaranteed in the United States, we believe that the people who built and paid for the disassociated parishes and dioceses have a right to their property. Obviously, TEC wants to keep those millions of dollars in property — an attractive prize for a denomination that is losing members and closing churches."

  • Rev. Arthur L. Kirkland||

    The gay-bashers split the Episcopal Church in my neck of the woods a number of years ago. The right-wingers calculatedly infiltrated the local church positions, changed legal documents, and then announced they were taking the property to advance the cause of bigotry. That inclines me to offer the propositions. Here's another one, with very long odds against: The Volokh Conspiracy endorsement -- "the better view," with an academic veneer -- favors the right-wingers' side of this dispute.

  • Sebastian Cremmington||

    Religions are innocuous and do not promote any particular values other than positive vibes. You are clearly expressing animus for this religion so any of your comments going forward are tainted with animus and should be stricken from the record.

  • Rev. Arthur L. Kirkland||

    I am expressing disdain for bigotry and backwardness. There are Episcopalians who are stale-thinking bigots and Episcopalians who are the opposite. The Episcopal part consequently is not the problem.

  • DRM||

    Now, now. Don't you understand that the only valid grounds for disqualifying someone to be a bishop is the belief that Jesus hates the person? I mean, sure, Scripture and tradition both have lots and lots of other things to say on the subject, but it's not like the Anglican communion treats those as sources of authority.

  • Eidde||

    Reverend, does Jesus hate Republicans?

    If He does, how is that better than hating gays?

    If He doesn't, why don't you follow His glorious example?

  • Doug Huffman||

    Charleston is a uniquely civil community and no one would DARE to publicly express hate. We can't fix what we can't speak.

  • MightyMouse||

    Sounds great if people refrain from expressing hate. On the other hand, I've never heard anyone complain too many people are keeping their opinions to themselves. I suppose it's possible.

  • the original jack||

    The real "Artie"? Or a parody account? It is tough going thru life as a living example of Poe's Law.

  • Rev. Arthur L. Kirkland||

    You seem to be the only one who is confused, jack. Perhaps you should find someone who can explain things to you.

  • the original jack||

    yeah, you don't see several parody "Jack" accounts, do you.

  • Brett Bellmore||

    I've come to the conclusion there is no real Artie. It's turtles all the way down.

  • swood1000||

    The theological discussion underlying the dispute involves whether Jesus loved or hated gay people

    Of course that's a parody, since Christian teaching is that Jesus came for the sinners and that we are all sinners. If Jesus hated sinners Jesus would hate everybody.

    Luke 5:29 Then Levi held a great banquet for Jesus at his house, and a large crowd of tax collectors and others were eating with them. 30 But the Pharisees and the teachers of the law who belonged to their sect complained to his disciples, "Why do you eat and drink with tax collectors and sinners?"

    31 Jesus answered them, "It is not the healthy who need a doctor, but the sick. 32 I have not come to call the righteous, but sinners to repentance."

    The question being debated here is not whether Jesus loves sinners, but whether homosexuality is a sin.

  • Rev. Arthur L. Kirkland||

    You can cloak bigotry in religious garb, but it's still ugly bigotry, made no better in a cardinal's finery (or a televangelist's ten-million-dollar digs).

    Carry on, clingers.

  • Sebastian Cremmington||

    Actually if you cloak bigotry in a hijab it is as pretty as the first sounds of the Adhan at sunset.

  • Rev. Arthur L. Kirkland||

    I object to all superstition-based bigotry. You seem to like some of it, and hate the competition.

    I win, at least if we are older than 12 or so. By then childhood indoctrination fades as an excuse for backwardness, intolerance, superstition, and ignorance. By ostensible adulthood it is no excuse.

    Choose reason. Be an adult. Or, at least, try.

  • Brett Bellmore||

    In the Philippines instead of the call to prayer, you greet the sunset with echoes of Celine Dion karaoke. Much more pleasant, but it still makes it hard to fall asleep.

  • swood1000||

    "Bigoted" also applies to the feelings many atheists have toward religious people. There is most definitely "virtue signaling" on both sides, or the ostentatious holding of oneself out as an exemplar of virtue, along with the denigration of the practices of the infidels on the other side.

  • Rev. Arthur L. Kirkland||

    Agnostics appear to have the most defensible position, perhaps the sole reason-based or reason-compatible position.

  • swood1000||

    Agnostics appear to have the most defensible position, perhaps the sole reason-based or reason-compatible position.

    On the other hand, there are those who doubt the reasonableness of a person who says that it is unknowable whether or not the universe could have spontaneously come into existence out of nothing, with no cause, in that this seems to be a logical impossibility so it is more reasonable to assume otherwise. (Such an argument would not be intended to prove the truth of the teachings of any particular religion.)

  • Rev. Arthur L. Kirkland||

    Your understanding of agnosticism seems unreliable. People who question agnostics invariably rely on a conclusion that is unreasonable.

  • swood1000||

    Your understanding of agnosticism seems unreliable. People who question agnostics invariably rely on a conclusion that is unreasonable.

    My tenth grade English teacher told us that an agnostic is one who believes that the existence of God is unknowable.

    According to the philosopher William L. Rowe, "agnosticism is the view that human reason is incapable of providing sufficient rational grounds to justify either the belief that God exists or the belief that God does not exist". https://en.wikipedia.org/wiki/Agnosticism

    Although many use the word to mean they're just not certain, I use the term in the above sense.

  • MatthewSlyfield||

    The agnostic position is "I know not whether god exists or not".

    Can one hold that position and still mock the very idea/possibility of religion without being an extreme hypocrite?

    Once again, Mr "I love reson" shows zero evidence of holding a reason-based or reason-compatible position.

  • Rev. Arthur L. Kirkland||

    You figure believing in the Catholic Church, or in faith-healing televangelism, or fundamentalist Islam or orthodox Judaism, or in the Bible's divinity and unerrant truth, is as reasonable as agnosticism?

    That the Catholic Church is right is possible. It's at least a billion-to-one shot, but it is possible. That something is possible does not make it sensible to believe that it is true.

  • swood1000||

    You figure believing in the Catholic Church, or in faith-healing televangelism, or fundamentalist Islam or orthodox Judaism, or in the Bible's divinity and unerrant truth, is as reasonable as agnosticism?

    I'm not really the right person to be arguing that point, but neither do I say that I would never believe anything without evidence, since we all believe many things without evidence. And we all believe many things that are contradictory, such as that light is at the same time both a wave and a particle. And we all have heard such things as from the atheist scientist Fred Hoyle that

    From 1953 onward, Willy Fowler and I have always been intrigued by the remarkable relation of the 7.65 Mev energy level in the nucleus of ¹²C to the 7.12 Mev level in ¹⁶O. If you wanted to produce carbon and oxygen in roughly equal quantities by stellar nucleosynthesis, these are the two levels you would have to fix, and your fixing would have to be just where these levels are actually found to be. Another put-up job? Following the above argument, I am inclined to think so. A common sense interpretation of the facts suggests that a superintellect has monkeyed with physics, as well as with chemistry and biology, and that there are no blind forces worth speaking about in nature.
  • NToJ||

    "Can one hold that position and still mock the very idea/possibility of religion without being an extreme hypocrite?"

    Mocking specific superstitious beliefs is not the same thing as mocking the very idea/possibility of religion. If somebody tells me that alligators are ornery because god made them with all those teeth but no tooth brush, or tells me that the Romans had a census in which they required all able-bodied men to travel to Bethlehem (as opposed to sending the censor to Nazareth) and a virgin woman gave birth to a baby on that road, I can question the rationality of believing those things without mocking "the very idea/possibility of religion". And I'm not a hypocrite for doing so.

  • MatthewSlyfield||

    "Mocking specific superstitious beliefs is not the same thing as mocking the very idea/possibility of religion."

    This is true. However, AK tends to engage more in the latter than in the former.

  • PoxOnBothYourHouses||

    Of course the issue at hand is not the sex-doctrine, It's "who owns the property?"

    Not being Episcopalian, and being pro-gay, I think it's fine for the Episcopal church to change its theology. I also think it's fine for dissenters to split away to their own church or no church. Such things are extraordinarily common.When the dissenters are not just a few individuals but a church community that has claims on the property -- well, things get interesting. It's at least as messy as a divorce.

  • swood1000||

    Timeline:

    1979 — National Episcopal Church passes the "Dennis Canon," saying that all local church property belongs to the national church but this will not affect the local authority over local property as long as the Congregation remains part of the national church.

    2003 — General Convention approves the Diocese of New Hampshire's election of the Rev. Canon Gene Robinson, an openly gay priest in a long-term committed relationship, as Bishop Coadjutor.

    2009 — the Episcopal Church's House of Bishops votes that "any ordained ministry" is open to gay men and lesbians. The General Convention charges the Standing Commission on Liturgy and Music to develop theological and liturgical resources for same-sex blessings.

    2009 to 2011 — the Diocese of South Carolina withdraws its accession to the Dennis Canon and other canons of the national Episcopal Church.

  • PoxOnBothYourHouses||

    So -- the "Dennis Canon" dates only to 1979. Wow. Clearly the Episcopal Church saw the handwriting on the wall and was playing hardball by declaring ownership of all property so late in the game.

    Bishop Vader: "I am altering the deal. Pray I don't alter it any further."

  • mse326||

    I agree that's ridiculous, but I wonder if a local church remaining part of the National Church is legally considered consent such that a new contract or transfer of property is agreed to and binding.

    This is one thing that gives me pause of simply applying property law, even if I think that is the way to go, because I foresee many instances of courts trying to distinguish what is and what is not church doctrine that they can't touch and what is simple contract/business type relationships that they can. That will create a big entanglement with religion.

  • swood1000||

    I agree that's ridiculous, but I wonder if a local church remaining part of the National Church is legally considered consent such that a new contract or transfer of property is agreed to and binding.

    The issue in the case was that the actions taken did not create a trust under South Carolina law, or in any way constitute a transfer of ownership. However, the South Carolina Supreme Court ruled that it would violate the First Amendment to require a national church to have to comply with local property law in every State.

    The South Carolina diocese claims that since there would have been a different outcome if a church had not been involved, this violates the "principle of neutrality" whereby "the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause."

  • Brett Bellmore||

    Bottom line: The national church should have gotten a receipt.

  • DRM||

    Note that the first (regular) Episcopal ordination of a woman was in 1977, and provoked the formation of the Continuing Anglican movement that year. The purpose of the "Dennis Canon" was very explicitly to stop further seceding congregations from leaving with their property.

    That that was the purpose, of course, does not establish whether it had that legal effect in secular law.

  • Rev. Arthur L. Kirkland||

    Uppity women, uppity gays, probably uppity blacks, too . . . no wonder the right-winger can't abide the Episcopal approach to respecting everyone.

    Keep on clinging, guys.

  • swood1000||

    The purpose of the "Dennis Canon" was very explicitly to stop further seceding congregations from leaving with their property.

    The original wave of this came around the time of the Civil War, when southern congregations split from northern. In 1871 the Supreme Court decided Watson v. Jones, which until 1979 stood for the proposition that civil courts could not become involved in issues of church doctrine. The national churches thought they were safe and didn't need to comply with the letter of real property law in each state. Then in Jones v. Wolf (1979) the Supreme Court said that maybe they did have to comply with local property or trust law. The argument was that the national church can easily comply with local law to establish the legal rights they desire. But didn't this amount to the Court declaring that existing internal church rules and doctrine were null and void, and had no effect?

  • Michael Cook||

    I am not a lawyer, but I sense a remote similarity in underlying principles to what happened when a railroad on which I labored as a gandy-dancer in the summers of my college years went bankrupt. The 19th century block land grants the RR received were firmly secure from legal challenge, but the roadbed itself was a hodge podge of long, very narrow parcels obtained by imminent domain and what appeared to be outright seizures by inaccurate surveying.

    In some cases, critical portions of the right of way may have been purchased from people who didn't actually own it.

    Closer to home (near Seattle) a school where my wife taught many years was sold off by the school district and is about to become a huge box store. This process has been delayed nearly a decade because a portion of the property had been unwillingly sold originally with the stipulation that it be used for education purposes "in perpetuity."

  • Michael Cook||

    For the box store to cometh, an extensive genealogical search ensued to include DNA samples before some distant heir was declared worthy to negate that original agreement. In the meantime, lawyers reportedly explored whether placing the school-supplies and magazine-books section of the store over the disputed plot would satisfy the "education purposes" prong. If so, would all the area be necessary, or only a portion?

  • Brett Bellmore||

    Back in Michigan the railroads got a lot of right of ways by contracts that specified that the property would revert if it ever ceased to be used as a railway. Unfortunately for the owners, the state found that a bit inconvenient.

  • John Doe 20||

    What about this analogy?
    A woman (the congregation) asks her boyfriend (the denomination) to move into her house (the church property). After he is unfaithful, she asks him to move out. He tells the judge, "I told her that I would own the house", so the judge tells her to move out.
    ----------
    The denomination claims to have a contract giving it the property of the local church. But a "Quid pro quo, or the exchange of valuable consideration, is required for the formation of a valid contract between individuals who are not merchants." (thefreedictionary.com). So if the local church spent a million dollars on property, what has the denomination provided in return of comparable value?
    ----------
    It's fine for secular courts to defer to denominations on theological issues. But property is property, whether it's a church or not. Judges should need a strong reason before taking property from its legal owners, not just a he-said she-said.
    ----------
    What about this extrapolation?
    Say you control a national denomination. You decide to change to some strongly un-Christian doctrine. Naturally the local churches want to leave. You go to court, confiscate all the churches' real estate and endowments, and now you control a billion dollars of assets. Should such behavior be so rewarded?
    ----------
    Obviously it's in the interest of statist progressives to confiscate churches, following the lead of Stalin for example.

  • Michael Cook||

    The elephant in the room in this whole discussion is Sharia Law, and what things look like if you defer to it.

  • Michael Cook||

    It is not just property at stake. There undoubtedly exist elderly Episcopalians who long ago left a portion or all of their estates to "the church." Which church is that--their neighbors and fellow parishoners they knew and loved, or the cosmopolitan Episcopal Church hierarchy that holds all kinds of pagan ceremonies in the National Cathedral that looms over Washington, D.C.?

  • Rev. Arthur L. Kirkland||

    You decide to change to some strongly un-Christian doctrine.

    You mean no longer treating woman and gays (or perhaps blacks, or liberals, or scientists, or immigrants) like second-class citizens?

    Carry on, clingers.

  • Joe_JP||

    Paul said that "The very fact that you have lawsuits among you means you have been completely defeated already." You submit disputes to others, you at times have to at least in part play by their rules.

    BTW, when confiscating churches is raised, I think about Henry VIII though don't really consider him much of a "progressive."

  • swood1000||

    Obviously it's in the interest of statist progressives to confiscate churches, following the lead of Stalin for example.

    A bit dramatic, perhaps, equating the national church with the state.

    But property is property, whether it's a church or not. Judges should need a strong reason before taking property from its legal owners, not just a he-said she-said.

    So if a church has an internal rule that members of the church possess certain rights as to church property, the state can declare such a rule null and void and substitute its own rules? What happened to the free exercise of religion?

  • Joe_JP||

    " You decide to change to some strongly un-Christian doctrine."

    Presbyterian Church v. Hull Church, 393 U.S. 440 (1969):

    The opinion of the Supreme Court of Georgia summarizes the claimed violations and departures from petitioner's original tenets of faith and practice as including the following:

    "ordaining of women as ministers and ruling elders, making pronouncements and recommendations concerning civil, economic, social and political matters, giving support to the removal of Bible reading and prayers by children in the public schools, adopting certain Sunday School literature and teaching neo-orthodoxy alien to the Confession of Faith and Catechisms, as originally adopted by the general church, and causing all members to remain in the National Council of Churches of Christ and willingly accepting its leadership which advocated named practices such as the subverting of parental authority, civil disobedience, and intermeddling in civil affairs;"

    also,

    "that the general church has . . . made pronouncements in matters involving international issues such as the Vietnam conflict, and has disseminated publications denying the Holy Trinity and violating the moral and ethical standards of the faith."

  • swood1000||

    Georgia law implies a trust of local church property for the benefit of the general church on condition that the general church adhere to doctrinal tenets existing at the time of affiliation by the local churches. In that case the Supreme Court decided that civil courts cannot be in the business of resolving ecclesiastical questions such as whether the national church departed from its original doctrine.

  • apedad||

    I have the solution...

    Let's tax the property and then see who wants to own it.

  • Rev. Arthur L. Kirkland||

    That is the most reasonable observation anyone will offer with respect to this issue.

  • swood1000||

    The "neutral principles of law" was added by the Supreme Court in Jones v Wolf (1979) in a five to four decision (which the Episcopal Church responded to in 1979 with the Dennis Canon, saying that local church property was held in trust for the national church).

    The dissent said that The First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. If the State then comes in and says "No, we are going to substitute some of our rules for the ones you have devised concerning property rights" isn't there a First Amendment free exercise issue, especially where the local church acceded to the church canon stating that they hold the property in trust?

  • TheAmazingEmu||

    It's not a free exercise issue as long as those rules are neutral and not discriminating against a particular religion.

    There's nothing stopping a church from creating a binding contract agreeing for property to be held in trust or to agree that all disputes be submitted to an arbitrator who is free to follow church rules. Those would both be neutral principles.

  • swood1000||

    There's nothing stopping a church from creating a binding contract agreeing for property to be held in trust or to agree that all disputes be submitted to an arbitrator who is free to follow church rules. Those would both be neutral principles.

    But these denominations did that. They ordered their affairs in accordance with Watson v. Jones (1871), and were secure in the knowledge that the local church held the property in trust for the national church. Then along came Jones v. Wolf (1979) where the Supreme Court upset the apple cart and said that their internal arrangements were no longer valid, opening up possibilities for those contemplating schism. Isn't it an interference with free exercise to tell them that some of their rules are inoperative?

  • TheAmazingEmu||

    Ordering ones affairs is not remotely the same thing as entering a binding contract. Regardless, it's disingenuous to argue they were relying on an 1871 case and not a 1979 case. That second case is still nearly forty years old.

  • swood1000||

    Ordering ones affairs is not remotely the same thing as entering a binding contract.

    In Watson v. Jones the Supreme Court said:

    "The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for."

    You are proposing that the state can declare church doctrine, including how internal disputes are settled, to be null and void but that that does not interfere with the free exercise of religion. Don't you see a problem?

    [continued]

  • swood1000||

    [continued]

    Regardless, it's disingenuous to argue they were relying on an 1871 case and not a 1979 case. That second case is still nearly forty years old.

    This denomination and this local church were in existence in 1979, when the Supreme Court announced that their church doctrine concerning the settling of disputes was invalid. Doesn't the First Amendment prohibit such interference? Furthermore, the local church acceded to the canon passed by the national church affirming the existence of a trust for the benefit of the national church. According to church doctrine this was sufficient. Church doctrine again invalidated by the state?

  • MatthewSlyfield||

    Here's my take on the case:

    The national denomination leadership came into secular state court to pursue property rights (via the claimed trust) vs the local parishes.

    Why should they be allowed to do that, if the establishment of the trust they claim was not done in accordance with state law?

  • swood1000||

    Why should they be allowed to do that, if the establishment of the trust they claim was not done in accordance with state law?

    But it was in accordance with state law until Jones v. Wolf (1979). Then the Supreme Court declared that church doctrine was no longer controlling with respect to church property. And if a particular church doctrine declares rights in church property doesn't it violate the free exercise clause to declare such doctrine to be void? If people form a church under certain rules then why shouldn't those rules that they agreed to govern?

  • TheAmazingEmu||

    Two things.

    One, saying something is in accordance with state law forty years ago is virtually meaningless. Was this particular property even purchased that long ago?

    Second, courts aren't declaring church doctrines null and void, they're just not declaring them legally enforceable. They're not giving churches a special carve out that doesn't apply to other organizations. If churches want their doctrines to be legally enforceable, all they need to do is use legally enforceable mechanisms. And, no, a case that was overturned nearly forty years ago is not one of those mechanisms.

  • swood1000||

    One, saying something is in accordance with state law forty years ago is virtually meaningless. Was this particular property even purchased that long ago?

    Apparently, some of the parishes involved in this case predate the American Revolution.

    For over 100 years prior to the day the Supreme Court decided Jones v. Wolf (1979) the law of every state was as stated in Watson v. Jones:

    "All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for."

    Then the Supreme Court announced that church doctrine concerning internal conflict resolution that had been agreed to by all and that had been enforced by the courts and relied on for 100 years would now be replaced by procedures mandated by the state, producing different results. Does this have no effect on the free exercise of religion? What difference does it make that it has been 40 years since Jones v Wolf?

  • TheAmazingEmu||

    Employment Division v. Smith makes it clear that generally applicable rules can interfere with religious practice without prohibiting the free exercise of religion.

    The age of the case is relevant if you're arguing they relied on an older case in how they ordered their affairs with respect to the law. They clearly had plenty of time to learn of the case and respond accordingly.

  • swood1000||

    I agree with you that when the local diocese created their version of the Dennis Canon, purporting to create a trust for the benefit of the national church, the national church screwed up by failing to make sure that it was expressly irrevocable. The argument that irrevocability should have been implied given that otherwise this was an idle action with no effect, possibly has some merit.

    Employment Division v. Smith was distinguished in Hosanna-Tabor, where the Court said

    Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

    Furthermore, Jones v Wolf (1979) did not decide whether a retroactive application of a neutral principles approach would infringe free exercise rights. Your argument is that the national church could have corrected the damage. But why should they have to?

  • CJColucci||

    This looks like one of those questions -- there are so many of them -- where it is far more important that we get some definite answer than that we get any particular answer.

  • Rev. Arthur L. Kirkland||

    These cases are unfortunate. People contributed and relied in good faith but have parted ways with respect to the desired use of a shared organization and some relatively indivisible property. Both sides now rely, to large degree, to arguments founded on "just because," and one side or the other probably took advantage of others' good nature and trust by engaging in sharp, clandestine legal tactics to prepare for a schism.

  • swood1000||

    Also unfortunate because invariably the local congregation is split and whatever they do, a large fraction are unhappy and have to split off. People don't see the value of a good prenup until it's too late. Nobody can imagine that his or her partner could engage in such treachery as to (pick one) (a) adopt such a depraved course of action, (b) attempt schism.

  • Rev. Arthur L. Kirkland||

    Would requiring a prenup in the context of volunteering labor to a church, or tossing money in the collection basket, be a reasonable course? What about the folks whose contributions built the church decades ago but are no longer available to identify wishes or understandings? I visit churches solely for funerals and weddings, or when I am representing one, but I sense that requiring a written contract of each congregant would be incongruent with most concepts of a church.

  • swood1000||

    Would requiring a prenup in the context of volunteering labor to a church, or tossing money in the collection basket, be a reasonable course?

    I was really saying that tongue-in-cheek. It never occurs to the local church that the national church will make such profound changes to church doctrine. However, in 1973 they learned their lesson. A number of southern churches split off from the national Presbyterian Church (PCUSA), having to walk away from their former church property, and formed their own denomination, the PCA, in which the local churches emphatically own their own property.

    Of course, a prenup isn't available for churches wishing to join the PCUSA. The national church won't accept them unless they agree to the terms required.

    What about the folks whose contributions built the church decades ago but are no longer available to identify wishes or understandings?

    In one case Justice Harlan agreed that internal church doctrine should govern disputes, but said that if someone deeded property to the church with certain conditions (for example that it had to be used for a religious purpose), then the conditions in the deed would govern even if there were contrary church doctrine.

  • Bob from Ohio||

    I really miss the "Ignore" button from the WaPo years.

  • apedad||

    Thank you Bob for clearly exhibiting the pubs' approach to addressing problems.

    Ignore.
    Build a wall.
    Have a gun.
    Pray.

    And cut funding...

  • MightyMouse||

    I'm surprised the denomination would take the step of suing for property. I'm not sure this reflects well on their interpretation of the gospel, especially when it's from the sermon on the mount, considered by many, and as I was taught, to be the most important part of the New Testament.

    https://en.wikipedia.org/wiki/Matthew_5:40
    http://biblehub.com/matthew/5-40.htm

  • swood1000||

    The problem is that the course you describe requires actual faith and belief.

    1 Cor 6: 1 When one of you has a grievance against another, does he dare go to law before the unrighteous instead of the saints? 2 Or do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? 3 Do you not know that we are to judge angels? How much more, then, matters pertaining to this life! 4 So if you have such cases, why do you lay them before those who have no standing in the church? 5 I say this to your shame. Can it be that there is no one among you wise enough to settle a dispute between the brothers, 6 but brother goes to law against brother, and that before unbelievers? 7 To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded? 8 But you yourselves wrong and defraud—even your own brothers
  • Bubba Jones||

    If the congregation accepted the religious authority of the denomination, they would still be part of the denomination.

  • swood1000||

    Right. They see each other as heretics.

  • Rev. Arthur L. Kirkland||

    This is where choosing reason is revealed as the path of sensible people.

  • Bubba Jones||

    It seems to me that if the church wants the state to enforce a transfer of deed, then they should file a transfer of deed with the state. Church law might require that the congregation transfer the deed, but that would be an internal matter. The actual State question of hinge on whether the deed was transferred. Not whether church law required that it should have been.

  • ReaderY||

    I disagree with the premise of Professor Bray's position here.

    South Carolina law permits churches to use church law rather than civil law to resolve property disputes if they want. The Episcopal Church and its member churches bought into this option by promulgating a religious-law cannon that local ownership of church property is in trust for the national church. And relying on the option, they didn't bother to go through the formalities of constructing valid civil-law trusts.

    The local churches, in a dispute with the national church, are trying to read the Supreme Court's familiar statement that courts should apply "neutral principles of law" to resolve disputes as meaning that South Carolina's religious law option is somehow unconstitutional.

    I disagree. There is nothing the least bit unconstitutional about it. Whether or not states are required to provide this option, they certainly can if they want. Letting churches settle matters themselves by canon law and by church tribunals if they want avoids civil intrusion on church matters.

    The local churches agreed to the "Dennis canon" when they joined the national church.

    The fact that national churches tend to interpret church property law to favor national ownership shouldn't surprise anyone. If you don't like it, don't join a national church that has provisions like this. Since the local churches did so, they have to accept the consequences. It's none of the state's business.

  • Rev. Arthur L. Kirkland||

    That approach does not favor the conservatives seeking to claim church property for the greater glory of gay-bashing and misogyny, so don't expect the Volokh Conspiracy to endorse it.

  • MightyMouse||

    I think Prof Bray's opinion is correct, in that it more closely hews to natural law, in that one cannot be dispossessed of property necessary for ones own survival. In this case, you would be figuratively be throwing the congregation out on the street.

  • qlangley||

    Intriguing that some of the title in the property concerned goes back to 1680. The present Episcopal Church is affiliated to the Anglican Communion. Were these churches perhaps owned by the Church of England at one point? If so, to whom did title transfer and when?

  • MoreCurious||

    Reading the original post took me on a trip down memory lane. About a million years ago I clerked for a justice on the Pennsylvania Supreme Court and spent a great deal of time researching this issue. Back in those pre-Lexis and pre-Westlaw days, research like this sometimes required blowing the dust off rarely used books and sitting at a conference-room table with dozens of opened digests, federal and state case books, and Shepards and filling up legal pads with notes and quotations and citations. After a careful review of USSC cases as well as decisions from other states, the Court rejected the former "deference" approach in favor of the "neutral principles" approach. (507 Pa. 255.)

  • Michael Cook||

    If you want to compound the issues involved, get your legacy church declared a national historic monument. In Russia, a great many crumbling onion-dome churches were covered by similar declarations and since are being restored with international grant money. How much of that sources from American taxpayers I don't know, but it likely depends on the degree of U.N. involvement.

  • ReaderY||

    To put the point more clearly, Jones v. Wolf said that a state is not required to defer to canon law and church tribunals in resolving property disputes between a local congregation and a church hierarchy, and can use "neutral principles of law" instead. But nothing in Jones v Wolf suggested a state is required to do so. It can use a deference policy if it wishes. Jones v. Wolf gives states the option.

    I think Professor Bray' basic premise - that the fact that today different states use different approaches represents an anomaly the Supreme Court needs to resolve - represents a misunderstanding of Jones v. Wolf. This consequence of that decision is not a bug. It's a feature.

  • Michael Cook||

    Talmudic law speaks a lot to the ethics of property disputes. I suppose courts in New York might defer to the Talmud in some things, and in Michigan maybe to Sharia law.

  • Hugo S. Cunningham||

    For those building up a community church, both the hierarchical approach and the congregational approach have their risks.

    A weak hierarchical authority and a mentally-disturbed pastor allowed a con man to take over an enticingly rich Swedenborgian Church in Boston Massachusetts.

    A Federal judge ruled that the national Swedenborgian church lacked authority to intervene. The dispute attracted attention from Federal authorities and the State attorney general, however, and ten years later they finally got the con man on criminal charges.

    Google: "swedenborgian church boston mackenzie verdict"
    (The bot would not accept my URLs)

    Moral-- Don't let your church get too rich and tempting. If your endowment is more than needed to service a declining congregation, give some of it away in good works. (Good advice also for the Knights Templar in France around 1300 AD.)

    -----

  • Hugo S. Cunningham||

    The Roman Catholic church has taken a strictly hierarchical approach to property ownership. That deters schism. On the other hand it has left unrelated church institutions, eg parochial schools with clean records, and cemeteries, vulnerable to seizure in clergy-sex-abuse litigation.

    I am not aware of an unrelated parochial school being shut down in these cases (the political pushback would be very strong), but at least one trust fund for cemeteries took a hit:

    Google: "catholic diocese bankruptcy cemetery milwaukee"
    The bot would not accept my URL

    "Time will pass. The graves of the odious traitors will be overgrown with weeds..."
    ----A.Ya. Vyshinsky at the 1938 Bukharin trial (Moscow)

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