Copyright 2006 by the Columbia Journal of Law and Social Problems, Inc. Reprinted by permission. This Note originally appeared at 40 COLUM. J.L. & SOC. PROBS. 125 (2006).

Whose Church Is It, Anyway? Property Disputes and Episcopal Church Splits KATHLEEN E. REEDER* If a parish separates from its hierarchy, which group should have legal rights over the property historically used by the congregation? The Supreme Court has established two basic frameworks for deciding church property cases, called deference and neutral principles. While the courts are not applying tests that are legally incorrect, the factors they take into account may be incomplete and the outcomes they produce are often inequitable, particularly when applied to local churches that operate largely independently. Tensions in the current approaches may become more apparent as church property disputes become more common and contentious. This Note argues that the understandings and expectations of church members can and should be considered by courts hearing church property disputes. Specifically, courts should integrate five factors into their church property adjudications: assessments to dioceses, church purchase of property, expectations of parishioner-donors, changes in membership between approval of canons and present-day disputes, and lack of bargaining power of newly developed churches.

I. INTRODUCTION If a parish separates from its hierarchy, which group should have legal rights over the property historically used by the church? The question may seem arcane, but its relevance has grown immensely since the 2003 ordination of openly gay Bishop * Executive Editor, COLUM. J.L. & SOC. PROBS., 2006–2007. The author thanks Professor Kent Greenawalt for his guidance, oversight, and numerous rounds of helpful comments, and Katherine Bobbitt for her ever-patient administrative assistance. Thanks also go to Reverend Charles and Patience Reeder, for their insights, feedback, and guidance at all stages of writing this Note.

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V. Gene Robinson provoked a schism in the American Episcopal Church.1 In the summer of 2006, Columbus, Ohio, became a hotbed of theological debate as church liberals and conservatives disputed biblical authority and the morality of homosexuality during their national convention. The tension was palpable, and in the weeks after the convention it became apparent that the American Episcopal Church might fracture.2 But as bishops and priests debated theological, philosophical, and cultural issues, important legal questions arose as well. If individual Episcopal churches left the governing bodies, called dioceses,3 what would happen to their parish property? As the law stands, when an Episcopal church separates from its diocese, the diocese frequently sues for — and wins — title to the church’s property.4 These church property cases are ripe for reexamination in the wake of the turmoil in the Episcopal Church. The Supreme Court has established two basic frameworks for ruling on church property cases. The current approaches, labeled “deference” and “neutral principles,”5 are at times confusing in their application.6 Still, despite broad authority to apply either deference or neutral principles, courts frequently disregard seemingly fundamental questions such as what funds were used to purchase the property and how the relationship between the church and diocese operates on a day-to-day basis. In cases involving the Episcopal Church, the current approaches are based 1. Brian Murphy, Will Fight Over Gay Clergy Split Anglicans?, CHICAGO SUN-TIMES, June 9, 2006, at A10. 2. See generally Laurie Goodstein, Episcopalians Shaken by Division in Church, N.Y. TIMES, July 2, 2006, at A10; Laurie Goodstein, Proposal by Anglican Leader Could Split Church, N.Y. TIMES, June 27, 2006, at A1. 3. See infra Part II.A for an explanation of the terminology adopted in this Note. 4. This Note focuses primarily on the internal operations of and hierarchical relationships within the Episcopal Church cases in arguing for a fresh judicial approach to church property disputes. Assessing the structures of other denominations is beyond the scope of this Note. Nevertheless, the framework proposed for approaching Episcopal Church cases may be applied to other hierarchical religious organizations. 5. Compare Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871), with Jones v. Wolf, 444 U.S. 1080 (1980). 6. See Nathan Belzer, Deference in the Resolution of Intrachurch Disputes: The Lesser of Two Constitutional Evils, 11 ST. THOMAS L. REV. 109 (1998); see also Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts Over Religious Property, 98 COLUM. L. REV. 1843, 1861 (1998).

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largely on a single church rule — the Dennis Canon7 — which cedes individual church property to the diocese8 without regard to the daily workings of the church or the expectations of church members.9 The courts’ application of the Dennis Canon almost always produces pro-diocese, anti-parish decisions. Weaknesses in the deference and neutral principles approaches may become more apparent as church property disputes become more common and contentious. Several Episcopal congregations are deep in the midst of property disputes. In the Los Angeles area, three congregations await appeal of rulings finding that the parishes were the rightful owners of church buildings and property.10 The congregations had defected from the National Church over disagreements about Biblical teachings and homosexuality, stemming from the National Church’s decision to ordain an openly gay bishop in 2003.11 Tempers have flared to such a degree that the bishop sued the priest and lay vestry in one parish. In the related property suit, the trial judge ruled that the diocesan suit to maintain church property upon secession was an attempt to violate the church’s free speech.12 Four Clevelandarea Episcopal churches, recently having left their diocese over deep theological rifts, are currently waiting to see if the diocese

7. For the Episcopal Church’s official definition of “canon,” see AN EPISCOPAL DICTIONARY OF THE CHURCH: A USER FRIENDLY REFERENCE FOR EPISCOPALIANS 68 (Don S. Armentrout & Robert Boak Slocum eds., 2000) [hereinafter EPISCOPAL DICTIONARY] (“The canons of the Episcopal Church are enacted by the General Convention. Canons of the Episcopal Church may only be enacted, amended, or repealed by concurrent resolution of the House of Deputies and the House of Bishops at General Convention.”). 8. Canons of the General Convention, 7.04 and 7.05, http://www.churchpublishing.org/general_convention/pdf_const_2003/ Title_I_OrgAdmin.pdf. 9. See generally Rector, Wardens & Vestrymen of Trinity–Saint Michael’s Parish, Inc. v. Episcopal Church in Diocese of Conn., 620 A.2d 1280 (Conn. 1993); In re Church of St. James the Less, 833 A.2d 319 (Pa. Commw. Ct. 2003). 10. Larry B. Stammer, Judge Rules Dissident Parish Owns Property, L.A. TIMES, Aug. 16, 2005, at B3; Larry B. Stammer, Judge Sides With 2 Episcopal Parishes in Property Dispute, L.A. TIMES, Dec. 13, 2005, at B3. 11. Stammer, Judge Rules Dissident Parish Owns Property, supra note 10. 12. Id. Presumably, the judge’s freedom of speech argument does not suppose government action. Instead, the judge likely meant that the diocese was unlawfully limiting the church’s use of its own property.

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will institute lawsuits to reclaim church property.13 As of December 2006, at least thirty-six parishes have left the Episcopal Church, and several more have taken steps towards separating from the diocese.14 While this may seem a small number compared to the more than seven thousand Episcopal churches in America,15 many more may be contemplating separation.16 Each of these separations may lead to a dispute over the disposition of church property. This Note argues that the understandings and expectations of church members can and should be critical factors in church property disputes. Courts currently tend to overlook these factors, and the tests courts commonly apply are unjust when applied to churches that operate largely independently.17 While the courts are not applying tests that are legally incorrect, the factors they take into account may be incomplete. A more comprehensive approach to church splits, incorporating approaches from contract law and accounting for the expectations of parishionerdonors, would produce more equitable and sound results. Part II of this Note traces the development of the judiciary’s two approaches to church property disputes. Under the deference approach, courts follow the assessments of intra-church judicial bodies. Under the neutral principles approach, courts interpret authoritative church documents without invoking religious doctrine or deciding whether the local or national church has broken from church doctrine. Part III explores the problems that the current judicial approaches create when applied to the Episcopal Church in particular. Local churches currently face almost cer13. Anthony Glassman, Four Churches Leave Ohio Diocese over N.H. Gay Bishop, GAY PEOPLE’S CHRON., Nov. 18, 2005, available at http://www.gaypeopleschronicle.com/ stories05/november/1118053.htm. 14. Laurie Goodstein, Episcopal Congregations in Virginia Vote to Secede in Dispute Over Church’s Direction, N.Y. TIMES, Dec. 18, 2006, at A16. 15. The Episcopal Church Welcomes You, http://www.ecusa.anglican.org/church.htm (last visited July 9, 2006). 16. Tellingly, a November 2005 conference drew more than 2400 Episcopal priests, bishops, and lay leaders to Pittsburgh to discuss the upcoming annual convention and the schism in the Episcopal Church. Neela Banerjee, Conservative Episcopalians Warn Church That It Must Change Course or Face Split, N.Y. TIMES, Nov. 12, 2005, at A9. 17. See John Fennelly, Property Disputes and Religious Schisms: Who Is the Church?, 9 ST. THOMAS L. REV. 319, 353 (1997).

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tain loss of the property where they have been worshipping, without regard to the facts behind their cases. Finally, Part IV sets forth a series of recommendations for how courts can better address church property disputes, both in the Episcopal Church and elsewhere.

II. JUDICIAL APPROACHES TO CHURCH PROPERTY DISPUTES: HISTORICAL AND MODERN SOLUTIONS AND THEIR CRITIQUES In attempting to resolve church property disputes, courts face a number of vexing issues. How deeply may civil courts inquire into church affairs when sorting out property disputes? What church documents should be taken into account? How should structural relationships between the national church, local parishes, and congregations be understood by the courts? The courts have developed two basic approaches to solving church property disputes: the deference approach and the neutral principles framework. While both approaches have their adherents, neither is applied with great consistency, and legal scholars have written extensively about how difficult it is for local parishes to order their affairs in the face of this analytical quagmire.18 The Supreme Court initially adopted a “deference approach” for resolving intra-church property disputes. Under this approach, secular courts defer to the decisions of judicial bodies of the national church. Ultimately, the deference approach has proven unsatisfactory because it cedes the role of adjudicator to church tribunals who are themselves a party in the dispute. Additionally, this approach imputes a relationship of implied trust between the national and local churches that does not necessarily reflect a congregation’s intent or expectations. Beginning in the late 1960s, courts began moving towards a novel approach in which courts adjudicated intra-church property by applying “neutral principles” of law. While neutral principles were intended to simplify church property disputes, according to one commentator, “the Supreme 18.

See supra note 6.

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Court’s optimistic conclusions concerning . . . neutral principles have been misplaced. What has emerged is a welter of contradictory and confusing case law largely devoid of certainty, consistency, or sustained analysis.”19 Well-developed contract principles clarify the expectations of those in the private sector, but local churches in the shadow of the neutral principles and deference approaches find it much more difficult to order their affairs in a way that ensures the property they use on a daily basis will be protected in case of a church split. Many official church documents — such as charters and constitutions — integrate theological principles with secular business concepts, which complicates the inquiry for courts constitutionally barred from deciding religious matters. For example, a church constitution may discuss the relationship between the church and its diocese in contractual terms while also elaborating on the importance of the greater Anglican Communion. Additionally, many church documents were written long before current church members had a voice in their development. Meanwhile, individual churches are rapidly losing their property despite expectations and deep investment,20 while scholars tussle over which of two wooden approaches to apply. As Professor Kent Greenawalt writes, “many religious organizations, not surprisingly, have tried to put their property affairs in order,” but still, “ordinary limitations of foresight about events and ambiguities of language, as well as uncertainties about how courts will make decisions, render this opportunity less than a perfect guarantee that relevant aspirations will be fulfilled.”21

A.

CHOICE OF TERMINOLOGY

In light of the profusion of intra-church property disputes within the Episcopal Church, this Note focuses on Episcopal 19. Fennelly, supra note 17, at 353; see also Giovan H. Venable, Note, Courts Examine Congregationalism, 41 STAN. L. REV. 719, 745 (1989) (“It has been suggested that the concept of neutral principles is too manipulable to be used with any consistency when resolving church property disputes . . . .”). 20. See infra Part III.B. 21. Greenawalt, supra note 6, at 1861.

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Church hierarchical structures. The terms “parish,” “local church,” and “congregation” are used interchangeably to indicate the individual church body within the greater national church. Individual churches are organized into geographical subdivisions called “dioceses,” which together constitute the denomination (such as the Episcopal Church, the Presbyterian Church, or the Catholic Church). A “diocese” is the “territorial jurisdiction of a diocesan bishop. The term also refers to the congregations and church members of the diocese.”22 A diocese includes all of the congregations within its geographical borders, each of which is led by a priest and an elected group of the laity called the vestry.23 A diocese is led by an elected leader called a bishop, who is “charged with the apostolic work of leading, supervising, and uniting the church.”24 Each bishop is elected and consecrated in a multi-stage process beginning with a vote by the churches of the diocese and ending in consecration by other bishops.25 The Episcopal Church in America, or the Protestant Episcopal Church of the USA (“PECUSA”), is composed of all of the Episcopal dioceses in the United States.26 The church disputes discussed in this 22. For the Episcopal Church’s official definition of “diocese,” see EPISCOPAL DICTIONARY, supra note 7, at 146–47. 23. The vestry is the elected lay leadership. The Episcopal Church defines “vestry” as follows: The vestry is the legal representative of the parish with regard to all matters pertaining to its corporate property. The number of vestry members and the term of office varies from parish to parish. Vestry members are usually elected at the annual parish meeting. The presiding officer of the vestry is the rector. There are usually two wardens. The senior warden leads the parish between rectors and is a support person for the rector. The junior warden often has responsibility for church property and buildings. A treasurer and a secretary or clerk may be chosen. These officers may or may not be vestry members. The basic responsibilities of the vestry are to help define and articulate the mission of the congregation; to support the church’s mission by word and deed, to select the rector, to ensure effective organization and planning, and to manage resources and finances. Id. at 541. 24. For the Episcopal Church’s official definition of “bishop,” see id. at 47. 25. Id. 26. PECUSA holds its general convention every three years, during which it discusses many matters, including church politics, policies, and theology. PECUSA held its 2006 convention in Columbus, Ohio. See General Convention 2006, at http://www.ecusa.anglican.org/53785_ENG_HTM.htm (last visited July 9, 2006).

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Note frequently occur between local churches and their dioceses, with the diocese acting as the representative of the national church.

B.

THE DEFERENCE APPROACH: THE SUPREME COURT’S FIRST FORAY INTO CHURCH PROPERTY DISPUTES

As the name plainly suggests, the deference approach to church property disputes requires civil courts to defer to the assessments of intra-church judicial bodies.27 If a church judicial tribunal ruled that the national church could retain the property of a local church that decided to leave the denomination, deference would require the secular court to defer to that tribunal’s decision. This approach originated with Watson v. Jones,28 an 1871 case in which a dispute over the morality of slavery in a local Presbyterian church led to an intra-parish split. The dissenting group claimed that the church failed to adhere to the basic anti-slavery principles of the national Presbyterian Church.29 The legal question the Court faced was the appropriateness of a legal rule that would allow the national church to retain the property of the local church through an implied trust, unless the national church had departed from established church doctrine. The Court affirmed this rule. The deference approach established by the Supreme Court in Watson is a product of the hierarchical organization of the church. The Court described the parish in question as “a subordinate member of some general church organization in which For the sake of simplicity, this Note does not address the relationship between the American Episcopal Church and the greater Anglican Communion. In addition to PECUSA, the world-wide Anglican Communion includes the Scottish Episcopal Church and the Anglican Church. 27. One might analogize this approach to “Chevron deference” in the administrative law context, which requires judicial deference to an administrative agency’s reasonable interpretations of its own rules. Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984). Church adjudicative bodies are assumed to make proper decisions in church property disputes, just as administrative agencies are presumed to be correct in their interpretations of agency regulations. Id. 28. 80 U.S. (13 Wall.) 679 (1871). 29. For an excellent summation of Watson’s complicated facts, see Greenawalt, supra note 6, at 1847–49.

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there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.”30 The Court held that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final.”31 Under the deference approach, once a church judicial body has decided an issue related to actual religious matters — generally, the only sort of issue that would precipitate a church split — courts defer to the church judicial body even if the related property dispute could be settled by examining secular church documents.32 1. Deference Helps Avoid Judicial Entanglement in Church Disputes at the Cost of Limiting Free Exercise Primarily because the deference approach requires minimal involvement of civil courts in religious affairs, it still attracts some followers in courts and academia. A principle advantage of this approach is that it gives lower courts a bright-line rule to apply while allowing them to avoid adjudicating questions of faith. Nathan Belzer, a prominent defender of the deference approach, has described deference as the “lesser of two constitutional evils,”33 precisely because it “violates fewer First Amendment principles” than other judicial approaches34 and because it is utterly predictable. While on one hand, the deference approach may present fewer entanglement issues than its alternatives, on the other hand, deference risks endorsing a particular theological judgment by ceding almost complete control to church adjudicative bodies. 30. Watson, 80 U.S. (13 Wall.) at 722–23. 31. Id. at 727. 32. Some Protestant denominations would not be covered by this approach, because they are organized in a completely non-hierarchical way, with individual churches standing alone as self-governing. 33. Belzer, supra note 6, at 139. 34. Id.

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Even in Belzer’s view, while the state has a legitimate interest in the peaceful resolution of church disputes, as recognized in the most recent significant church property case adjudicated by the Supreme Court, Jones v. Wolf,35 this interest “inevitably comes at the expense of some Free Exercise and Establishment Clause rights. A precarious line between judicial restraint and the need for resolution must be constantly drawn by the civil courts dealing with intra-church disputes.”36 Belzer suggests that the ultimate question in comparing the deference approach to the neutral principles framework “must not be which of the two approaches violates Free Exercise and Establishment Clause principles, but rather which approach draws a line that safeguards more First Amendment rights.”37 In fact, Belzer notes that the deference approach comes at great expense to the Establishment Clause because, by blindly ratifying the decisions of church tribunals, “the courts are placing the force of governmental authority behind a particular religious group or organization.”38 Courts following the deference approach essentially support one theological judgment over another. This outcome appears diametrically opposed to the principle of nondecision behind the deference approach. It was not necessary, however, for courts to defer to the national church’s judgment in church disputes to avoid excessive entanglement with religious matters. Watson’s unquestioning deference approach to church judicial bodies wholly ignores any independent judicial analysis of substantive but non-doctrinal statements in the articles of incorporation and constitutions of individual parishes. Watson also overlooks the possibility of mixed authority within the hierarchy, which, as Professor Greenawalt has noted, is “not unlike a federal system . . . in which neither a local nor a central body is the final authority on 35. 443 U.S. 595, 602 (1979) (citing Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 445 (1969)). 36. Belzer, supra note 6, at 122. Still, Belzer contends that, although deference raises Establishment Clause concerns, it is still less problematic than the alternatives. 37. Id. 38. Id. (discussing Michael William Galligan, Judicial Resolution of Intrachurch Disputes, 83 COLUM. L. REV. 2007, 2020 (1983)).

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all questions.”39 Additionally, property disputes will always arise in combination with doctrinal disputes, so by deferring to the church’s resolution of the doctrinal matter, courts are also deferring to the church’s resolution of the property dispute. The deference approach fails to recognize church disputes as having both doctrinal and non-doctrinal components. It also creates a system to resolve disputes in which the diocese is both a party to the “litigation” and the adjudicator. Finally, the Watson approach overlooks any possibility that local churches have chosen not to defer summarily to the national churches. Reflecting this view that the merits of the deference approach are limited, Professor Greenawalt analogizes a strict deference approach to a social contract theory of government: Suppose the highest church tribunal blatantly breaches the church constitution. According to ordinary social contract theory, citizen consent is given to governments so long as governments act within appropriate limits. In the American version of social contract, drawn heavily from Locke and reflected in the Declaration of Independence, consent to civil government is not absolute. Why should “implied consent” to authoritative church government be absolute? The answer cannot be that this is simply in the nature of church government.40 Watson’s deference approach often erroneously assumes the absolute consent of local churches to the decisions of their national church leadership. 2. Deference Has an Implicit Bias Towards the National Church When applying the deference approach, the deck is essentially stacked in favor of the national church, which acts as both a party to the dispute and an adjudicator whose decision will be entitled to great deference by the courts. As a result, local 39. 40.

Greenawalt, supra note 6, at 1851. Id.

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churches are frequently on the losing end of property disputes.41 It is not surprising that when church property disputes result in litigation, national churches seldom willingly permit a local church to secede, and often try to retain most or all the property of seceding congregations.42 Furthermore, because cases in which the national church permits a local church to retain its property never reach litigation, courts will almost invariably be reviewing cases where the relevant tribunal ruled against the local church. In other words, courts applying the deference approach almost always rule against a parish. Justice Rehnquist, dissenting in one such case, suggested that deference is not a lack of decision making by the courts, but rather decision by default, where courts “rubber-stamp ecclesiastical decisions of hierarchical religious associations.”43 In some cases, the deference approach may lead to unjust outcomes. For instance, in Beaver-Butler v. Middlesex Presbyterian Church,44 the Pennsylvania Supreme Court, employing a deference approach, recognized that the claims of the hierarchy and its interpretation of its rules may be self-serving and not indicative of the expectations and intent of the local churches.45 The deference approach often assumes that local churches have given implied consent to the church hierarchy, even though this assumption is not necessarily based on any understanding of the realities of everyday church operations. Courts readily im41. See, e.g., Bishop and Diocese of Colorado v. Mote, 716 P.2d 85 (Colo. 1986); Episcopal Church in the Diocese of Connecticut v. Trinity-St. Michael’s Parish, 620 A.2d 1280 (Conn. 1993); Bennison v. Sharp, 329 N.W.2d 466 (Mich. 1983); Protestant Episcopal Church of the Diocese of New Jersey v. Graves, 417 A.2d 19 (N.J. 1980); Trustees v. Diocese of Albany v. Trinity Episcopal Church of Gloversville, 684 N.Y.S.2d 76 (N.Y. 1999); In re Church of St. James the Less, 833 A.2d 319 (Pa. Commw. Ct. 2003). 42. One situation in which it seems likely that a local church will be permitted to retain its property is when that property is heavily mortgaged, and the diocese itself has no desire to assume such heavy financial burdens. These cases are of little value beyond pure intellectual curiosity, however, given that they never find their way into the judicial system. 43. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 734 (1976) (Rehnquist, J., dissenting). 44. 489 A.2d. 1317, 1324–25 (Pa. 1985). 45. Patty Gerstenblith, Civil Court Resolutions of Property Disputes Among Religious Organizations, 39 AM. U. L. REV. 513, 561 (1990) (citing Beaver-Butler, 489 A.2d at 1325).

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pute a local church’s consent to diocesan decisions when examining a hierarchical church. Some courts have even extended the notion of implied consent to church hierarchy by finding “intent to create a trust even where the hierarchy’s rules do not explicitly require forfeiture of property upon disaffiliation.”46 In these cases, courts rely on a number of factors to conclude that the local church is holding the property in trust, caring for the property for the benefit of the diocese.47 These factors include participation in conferences, acceptance of clergy appointed through the hierarchy, use of educational materials developed by the national church, use of the standard liturgy, use of a particular name, and the payment of dues from congregations to national churches.48 This implied consent approach rather simplistically accepts that once a local church has become a member of the national church and received some benefits of affiliation, it is subject to the decisions of the national church. As Gerstenblith observes, a church “must recognize its obligations and responsibilities and cannot unilaterally renege on these.”49 None of these factors proves or even addresses the intent of the local church, let alone any property donor who may lurk in the historical background.50 Rather, this approach overwhelmingly favors the national church51 and accepts a one-dimensional concept of consent that the law is wary to import into any other area.

46. Id. at 559; see also Lowe v. First Presbyterian Church, 308 N.E.2d 801, 807 (Ill. 1974) (deciding that a local church was a subordinate member of the general church and had implicitly consented to its rules so that the hierarchy’s decision bound the local church). 47. See N.Y. Annual Conf. of the United Methodist Church v. Fisher, 438 A.2d 62, 70– 71 (Conn. 1980) (assessing several criteria to determine whether a local church was part of the national hierarchy); United Methodist Church v. St. Louis Crossing Indep. Methodist Church, 276 N.E.2d 916, 923 (Ind. Ct. App. 1971) (factoring in use of Sunday school literature, attendance by representatives at denominational conferences, and other evidence of national-local church relationship). 48. Gerstenblith, supra note 45, at 559. Another approach suggests that paying dues to the national church shows the local church’s support, as opposed to submission. Under this approach, paying dues is not an implicit signal of the local parish’s deference to the national church. 49. Id. 50. Id. 51. Id.

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Indeed, Professor Greenawalt describes how the deference approach “neither recognizes possible differences in ways the superior authorities are constituted (from the top down or by some form of representational government), nor attends to nuances in balances of authority between higher authorities and local churches.”52 His disfavor for this approach is evident when he suggests that the courts’ “[p]rocrustean attitude risks giving central bodies more power than the members of some churches have assigned them.”53 The state’s legal rules become a de facto preference for national churches over local churches in resolving intra-church property disputes. Even defenders of the deference approach admit that it suffers from significant shortcomings. Nathan Belzer points out that its main weakness stems from the assumption “that a church that is hierarchical in spiritual and ecclesiastical matters is necessarily hierarchical in matters concerning property rights.”54 This assumption may not always be warranted. In his dissent in Church of God v. Noel, Judge Miller observes, “a particular group of churches may be hierarchical for purposes of church membership, the resolution of doctrinal questions, and the discipline of church officials, and congregational for purposes of using and controlling property.”55 Assuming otherwise fosters a model of church organization that fails to describe accurately the many relationships between churches, their members, and the hierarchies in which they are constituent members.56 This strict deference may frustrate the ability of losing factions to worship where they please by ignoring both the true allo52. Greenawalt, supra note 6, at 1864. 53. Id. 54. Belzer, supra note 6, at 124 (1998), quoting Louis Sirico, Church Property Disputes: Churches as Secular and Alien Institutions, 55 FORDHAM L. REV. 335, 349–50 (1986). 55. Church of God v. Noel, 318 S.E.2d 920, 926 (W. Va. 1984) (Miller, J., dissenting); see also Primate and Bishops’ Synod of the Russian Orthodox Church Outside Russia v. Russian Orthodox Church of the Holy Resurrection, Inc., 636 N.E.2d 211, 211 (Mass. 1994) (affirming the trial court’s determination that although the Russian Orthodox Church and the defendant parish “were hierarchical in matters of faith and polity, the defendant parish was congregational in terms of property ownership”). 56. Belzer, supra note 6, at 125 (citing Sirico, supra note 54, at 352–53).

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cation of decisional authority and the expectations of church members.57 As Michael William Galligan has noted, a court’s decision to defer automatically to church authorities “may violate rather than respect church members’ consent — often deeply rooted in religious conviction — to what they have deemed appropriate methods of religious governance and dispute resolution.”58 3. After Watson v. Jones: An Incremental Update on Church Property Jurisprudence The first two cases of the post-Watson era did not abandon the deference mold, but moved beyond a strict deference approach. In Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church,59 the Supreme Court reiterated that courts may not decide whether the doctrines and practices of the local or national church are more faithful to tradition.60 But the Court began by discussing an alternative to strict deference, and suggested that courts could adjudicate property disputes when looking to so-called “neutral principles” of law.61 In Blue Hull, local churches in Georgia withdrew from the national church. They argued that the actions of the general church departed from greater church doctrine and practices that were in place at the time of initial affiliation.62 At the trial level, the local church presented the national church’s actions as what might be called a “breaking of the covenants” by the national church, which, it was argued, should free the local church from its obliga57. Id. 58. Galligan, supra note 38, at 2024. 59. 393 U.S. 440 (1969). 60. Here the local church’s objections to actions of the general church “included predominantly doctrinal matters, such as the teaching of ‘neo-orthodoxy alien to the Confession of Faith and Catechisms’; church practices, such as the ordaining of women as ministers and elders; and political and social stances, such as support of removing prayers from public schools and acceptance of the leadership of the National Council of Churches, which had advocated civil disobedience.” Greenawalt, supra note 6, at 1856. 61. See discussion infra Part II.C. 62. Blue Hull, 393 U.S. at 442. Specifically, the petitioners cited the diocese’s position on issues ranging from ordaining women as ministers, to the role of the church in public schools, to international issues such as the Vietnam War. Id. at 443 n.1.

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tions.63 The case was submitted to a jury on the theory that Georgia law implies that local churches hold property in implied trust for the benefit of the national church on the condition “that the general church adhere[s] to its tenets of faith and practice existing at the time of affiliation by the local churches.”64 At the trial level, the jury was instructed “to determine whether the actions of the general church ‘amount to a fundamental or substantial abandonment of the original tenets and doctrine of the [general church], so that the new tenets and doctrine are utterly variant from the purposes for which the [general church] was founded.’”65 True to the deference approach adopted in Watson v. Jones, the Supreme Court disagreed with this interpretation and reversed.66 In reversing, Justice Brennan noted that “[t]he logic of this language [from Watson] leaves the civil courts no role in determining ecclesiastical questions in the process of resolving property disputes.”67 The trial court had delineated a two-step process in which a court must first decide if a general church has departed substantially from prior doctrine and then decide whether the matter is important enough to warrant termination of the implied trust.68 Justice Brennan was concerned that this “departure-from-doctrine” approach, under which the courts were forced to determine matters “at the very core of religion,”69 would raise the hazard of “inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.”70 Instead, Brennan introduced a novel approach in which courts may use “neutral principles of law” to resolve church property disputes. They may not, however, “re-

63. The trial court’s reasoning accords with Kent Greenawalt’s analogy between a parishioner’s relationship to his church and a citizen’s social contract with the state. See Greenawalt, supra note 6, at 1851. 64. Blue Hull, 393 U.S. at 443. 65. Id. at 443–44. 66. Id. at 440. 67. Id. at 447. 68. Id. at 450. 69. Id. 70. Id. at 449.

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solv[e] underlying controversies over religious doctrine.”71 Brennan’s majority precluded state courts from using a departurefrom-doctrine standard, reinforcing and refining the basic reasoning of Watson.72 This neutral principles approach was more fully developed in later cases. In Serbian Eastern Orthodox Diocese v. Milivojevich,73 the Court dealt with the removal of a bishop from his position, where both the trial and appeals courts had concluded that the removal was in violation of church law and therefore “arbitrary” under the approach of an earlier case.74 The case demanded an interpretation of diocesan constitutional provisions, which could not be made without “a searching and therefore impermissible inquiry into church polity.”75 The Supreme Court reversed, declaring that the lower courts had violated the First Amendment by drawing conclusions about matters of church law.76 Brennan’s majority invoked both Watson and Blue Hull, holding it unconstitutional for state courts to adjudicate disputed understandings of church rules.77 According to Brennan: [W]here resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them . . . .78

71. Id. 72. Id. at 450–52. 73. 426 U.S. 696 (1976). 74. Greenawalt, supra note 6, at 1858. 75. Serbian E. Orthodox Diocese, 426 U.S. at 723. Although the state courts attempted to rely on neutral principles of law, their resolution unacceptably determined ecclesiastical matters and was decided by the Supreme Court within the deference rubric. 76. Id. at 708–09. 77. Id. at 709–10. 78. Id.

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These cases created a climate in which a neutral principles approach to church property disputes could germinate.79 The next case provided a new framework for that approach.

C.

JONES V. WOLF AND THE BIRTH OF “NEUTRAL PRINCIPLES”

In 1979, the Supreme Court decided Jones v. Wolf.80 In this first fresh take on church property disputes since Watson v. Jones, the Court articulated the neutral principles doctrine in its present form. In Jones, the majority of a Presbyterian congregation voted to leave its diocese. The diocese then declared the remaining loyal minority the “true” congregation, and members of that minority sued to retain church property. The deeds conveyed the property to the local church,81 and neither the local church’s corporate charter nor state statutes conferred a property interest to the national church.82 Furthermore, nothing in the Book of Church Order for the national Presbyterian Church purported to create a trust in favor of the general church.83 The Georgia court applied what it called “neutral principles” to find that the property belonged to the local church as represented by the majority of congregants.84 Predictably, the diocese appealed to the Supreme Court. 79. Some state courts had begun embracing a neutral principles approach by 1970, without intervention from the Supreme Court. As Greenawalt points out, in the wake of Blue Hull the Supreme Court remanded to the state courts a pending Maryland case in which two local churches separated from the Church of God: After examining state statutes governing the holding of church property, the terms of the instruments deeding the property to the local churches, and provisions of the constitution of the general church and of the local church charters, the state court concluded that the majorities within the local churches could withdraw from the general church and retain their properties. Greenawalt, supra note 6, at 1887; see also Maryland and Va. Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 254 A.2d 162, 165 (Md. 1969). The Supreme Court denied the appeal and declared in a per curiam opinion that “the Maryland court’s resolution of the dispute involved no inquiry into religious doctrine.” 396 U.S. 367, 368 (1970). 80. 443 U.S. 595 (1979). 81. Id. at 597. 82. Id. at 601. 83. Id. 84. Id.

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The Court in Jones declared that courts need not defer to church authorities such as bishops and church judicial tribunals when deciding church property issues, as had become the de facto practice under Watson. Instead, it announced a neutral principles test that relied exclusively on authoritative church documents that could be interpreted without invoking religious doctrine or deciding whether the local or national church has departed from understandings of the true church. Neutral principles cannot themselves be religious or ecclesiastical, but they do not preclude examining “religious” documents such as church constitutions and evaluating secular principles within such documents. Jones left the Watson-era deferential approach intact, but it also provided the Court’s first articulation of an alternative that it termed “neutral principles.”85 While Jones’ “neutral principles” approach prohibits examination of religious or ecclesiastical principles, precisely what courts can examine was left somewhat unclear. Some members of the Jones majority, including Justice Rehnquist, were little concerned about the courts avoiding disputes about doctrine and ecclesiastical polity.86 This view is apparent from Rehnquist’s dissent in Serbian Eastern Orthodox Diocese, in which he agreed with the Illinois courts that “on the basis of testimony from experts on the canon law at issue, . . . the decision of the religious tribunal involved was rendered in violation of its own stated rules of procedure.”87 And commenting on Watson, Justice Rehnquist suggested that the Court merely recognized and applied “general rules as to the limited role which civil courts must have in set-

85. According to Greenawalt, the support for “neutral principles” was not nearly as strong as might be suggested, especially read in light of Serbian Eastern Orthodox Diocese: [E]xamination of the two majority opinions does not fairly reflect the divisions among the Justices . . . . A count of judicial votes reveals that only three Justices actually favored giving states a choice between neutral principles and deference to hierarchical decisions. Four Justices, the dissenters in Jones v. Wolf, rejected the neutral principles approach in favor of the deference mandated by Watson v. Jones and Serbian Eastern Orthodox Diocese. Greenawalt, supra note 6, at 1861–62. 86. Id. at 1862. 87. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 727 (1976).

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tling private intraorganizational disputes,”88 while discerning from precedent the principle that the government “may not displace the free religious choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect.”89 Yet, Justice Rehnquist’s dissent in Serbian Eastern Orthodox Diocese and subsequent position in Jones do not fully clarify what “neutral principles” are and how they apply. As Greenawalt writes, “[i]t is not easy to mark the distinction between inquiries the Court allows and those it does not, but apparently courts cannot make determinations about religious polity unless those are clearly established by documents that can be interpreted apart from any religious understanding.”90 Although Jones’ neutral principles approach may be more nuanced than the deference approach applied in Watson, it also raises a number of difficult questions. What documents should and may a court examine? How should courts determine membership within the church? May courts examine documents that are primarily of ecclesiastical value in an attempt to extract information on secular matters? If so, how can the court determine what is ecclesiastical and what is not? How specific do documents have to be to indicate that church property actually belongs to an entity other than the formal titleholder? For example, what will result when a local church holds title to property, but documents provide for national church control of all property? What about when a national church holds title, but a local parish entirely funds and supports the property, buildings, and church programs? Justice Powell’s dissenting opinion in Jones recognized that the neutral principles approach was not a cure-all for the ills of deference, declaring that it would “inevitably . . . increase the involvement of civil courts in church controversies, and . . . depart[ ] from long-established precedents.”91 Powell objected to examining the constitutional documents of churches, which “tend to be 88. 89. 90. 91.

Id. at 728. Id. at 733. Greenawalt, supra note 6, at 1860. Jones v. Wolf, 443 U.S. 595, 611 (1979) (Powell, J., dissenting).

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drawn in terms of religious precepts,” and concluded that “[a]ttempting to read them ‘in purely secular terms’ is more likely to promote confusion than understanding.”92 Finally, the dissent predicted judicial overreaching to fill in the blanks because “whenever religious polity has not been expressed in specific statements referring to the property of a church, there will be no evidence of that polity cognizable under the neutralprinciples rule. Lacking such evidence, presumably a court will impose some rule of church government derived from state law.”93 1. Do Neutral Principles Genuinely Present a Fresh Approach? How fresh is the neutral principles approach articulated in Jones? Does it truly provide a framework for a more equitable assessment of which party should control the disputed property? After all, “once a court has engaged in a neutral principles analysis, it may conclude that there is an express or implied trust in favor of the general church.”94 Given the ban on courts addressing religious issues, “neutral principles might lead a court to conclude that a civil court should give great deference to a determination by a church court or other religious body.”95 Another perspective goes so far as to suggest that the neutral principles approach will collapse into the deference approach: “Deference is the constitutional cushion on which the neutral principles analysis must fall when faced with entering the religious thicket.”96 And as one scholar suggests, Jones, with its neutral principles approach, may be “old wine in new wineskin.”97 Even if the neutral principles approach is a new way of resolving church property disputes, restrictions on evaluation of religious texts mean that courts will necessarily employ a lesssearching inquiry than they would with comparable non-religious voluntary associations. Courts may attach greater weight to 92. 93. 94. 95. 96. 97.

Id. at 612. Id. at 612–13. Greenawalt, supra note 6, at 1865. Id. Belzer, supra note 6, at 139. Fennelly, supra note 17, at 330.

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documents that national churches have shaped — such as Episcopal Church canons — than they attach to church-specific documents, because the former are more readily available and universally applicable to all churches within the denomination.98 As Professor Greenawalt writes, “to the extent that courts may not delve into church documents, doctrines, and practices, they are precluded from examining significant indicia of purpose and attachment.”99 2. Documents of Interest? No Neutral Opinions for the Neutral Principles Test Jones does little to clarify what documents should be considered under a neutral principles framework, and courts may take any approach along a continuum. At one end is the most restrictive “secular documents” standard.100 A middle ground permits consideration of secular documents in addition to church documents that are primarily secular in their meaning. The least restrictive approach allows courts to consider “any documents,” so long as the court does not engage issues of church doctrine. Unfortunately, the neutral principles doctrine does not suggest a clearly defined approach to document selection or interpretation, and as a result it has produced a frustratingly dense body of case law. Nor is there consensus among legal scholars regarding the appropriate approach. Professor Louis Sirico, for example, favors a “secular documents” test.101 Documents such as deeds and trusts fall into this category; their references to church documents do not present a problem, provided they are not too general or ambiguous. Although this standard is convenient for courts because is offers a bright-line rule, Greenawalt points out that it may produce unfair results when crucial transactions occurred prior to 98. Canons are essentially church laws. See EPISCOPAL DICTIONARY, supra note 7, at 68. 99. Greenawalt, supra note 6, at 1882. 100. Sirico, supra note 54, at 357. 101. Id. See also Louis Sirico, The Constitutional Dimensions of Church Property Disputes, 59 WASH. U.L.Q. 1, 68–77 (1981).

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its adoption. Moreover, it rests on the assumption that churches order their legal affairs with the same rigor and sophistication as corporations.102 For these reasons, a “secular documents” test may discount local church expectations and investments. Most courts apply an “any documents” standard, in which they review materials including church constitutions, charters, and even liturgical materials, provided the court does not engage in analysis of actual church doctrine.103 Using an “any documents” test, courts may extract secular principles from church documents considered traditionally religious.104 In the words of one court, however, “it is difficult if not impossible to disassociate [church] doctrine from [church] government or determine where one ends and the other begins.”105 Greenawalt proposes a more nuanced approach for analyzing what courts may examine. He suggests that the judiciary should distinguish between doctrine, practices, and church government. Doctrine “includes, for example, the belief in the Trinity, the significance of communion, and the authority of the Bible.”106 Greenawalt believes that courts should not examine doctrine, even undisputed religious doctrine. Practices, which “include such matters as an all-male priesthood (or a priesthood open to women), worship on Sunday (or Saturday), and use of wine for communion,” may be considered.107 The third category, church governance, “concerns the procedures and structures of authority, including, crucially, relations between a denomination’s general church and its locals.”108 Disputed issues of church governance (such as basic authorities in a church hierarchy) raise particularly difficult issues for courts in identifying what material is appropriate for judicial review. Applying neutral principles, some

102. Greenawalt, supra note 6, at 1886. 103. Id. at 1888. 104. Id. 105. Cumberland Presbyterian Church v. N. Red Bank Cumberland Presbyterian Church, 430 S.W.2d 879, 882 (Tenn. Ct. App. 1968). 106. Greenawalt, supra note 6, at 1888. 107. Id. 108. Id.

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courts will look beyond express documentary language,109 while others consider even undisputed matters of doctrine to be beyond the scope of their inquiry (although only disputed matters of doctrine are beyond constitutional inquiry).110 Even Greenawalt concedes that distinguishing among these distinct functions is not a panacea. Contention over practices often catalyzes church secession and, as Greenawalt notes, “practices and government nearly always bear some relation to doctrine.”111 Clearly, the neutral principles approach has its shortcomings, not least of which is general unpredictability.112 Applied in Episcopal Church property disputes, however, the neutral principles approach is often overly predictable, in that it fails to account for the nuances of property ownership and daily workings of the Episcopal Church.

III. APPLYING NEUTRAL PRINCIPLES: THE EPISCOPAL CHURCH CASES Both the deference approach and the neutral principles framework present a myriad of problems for courts adjudicating church property disputes. While the deference approach has waned in the advent of the neutral principles approach, courts still struggle to determine what documents to examine and how to extract secular principles from largely doctrinal documents. Yet in assessing Episcopal Church property disputes, courts almost unilaterally rule in favor of the diocese and against the local church, with what appears to be little regard for highly salient, 109. See, e.g., Templo Ebenezer v. Evangelical Assemblies, 752 S.W.2d 197, 198–99 (Tex. App. 1988) (where Tempolo Ebenezer separated from the Evangelical Assemblies church and a property dispute ensued). 110. See, e.g., Kaufmann v. Sheehan, 707 F.2d 355, 358–59 (8th Cir. 1983) (dismissing case alleging church officials failed to follow the generally accepted “ecclesiastical due process” on grounds that the claim involved “inherently religious issues,” but without suggesting that the issues are were actually in dispute). 111. Id. 112. The many cases where neutral principles are employed in unpredictable ways will not be covered, as they involve questions of varying hierarchical structures that are beyond the scope of this Note.

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case-specific facts. In the vast majority of cases, the national Episcopal Church has been able to retain the property of seceding local parishes, based on analysis of documents and structural relationships common within the denomination.113 Similar documents leading to similar outcomes may sound promising in the confusing world of neutral principles analysis, but these uniform outcomes fail to account for differing expectations and investments of parish members and church leadership among these cases. This section explores the Episcopal Church cases — the few victories and the many losses for local churches — to highlight particularly troubling examples of what courts miss in their analyses of church property disputes.

A.

DECISIONS FAVORING INDIVIDUAL CHURCHES

The foremost example within the small body of case law in which a separating church was allowed to keep church property is Protestant Episcopal Church of the United States (PECUSA) v. Barker,114 in which the state appellate court applied the neutral principles approach.115 Under this approach, the court rejected an implied trust model, in which the court would assume churches held property in trust for the diocese, concluding that an implied trust can be found too easily, given the somewhat hierarchical structure of the Episcopal Church. Instead, the court adopted an express trust approach, requiring a clear intent by the local church to hold its property in trust for the diocese.116 The appellate court presented the issue in the following manner: “Simply put, the issue is whether the local churches expressly hold their property in trust for the benefit of members of the Diocese and PECUSA. Did the local churches expressly agree that on withdrawal of their affiliation from the general church their property would go to the general church?”117 The Barker court 113. See cases cited supra note 41. 114. PECUSA v. Barker, 171 Cal. Rptr. 541 (Cal. App. Dep’t Super. Ct. 1981). 115. Id. at 549. 116. Id. at 549–53. In Barker, both parties agreed that the express trust model should apply, and that the trial court had erred in rejecting an express trust theory. Id. at 552. 117. Id. at 553.

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answered the question by focusing its analysis on four types of documents: (1) deeds to the property; (2) the articles of incorporation of the local church; (3) the constitution, canons, and rules of the general church; and (4) relevant state statutes, if any, governing possession and disposition of such property.118 The deeds of the four churches at issue had been held in the names of the local churches, with insignificant exceptions.119 The court recognized that this practice by PECUSA, while articulated as a matter of administrative convenience, implied that congregations that disaffiliated would take their property with them.120 The articles of incorporation of three of the four churches were drawn before 1958, and one after. Before 1958, neither the Diocese of Los Angeles nor PECUSA had any provisions for disposition of local church property on dissolution or disaffiliation of a local church.121 While PECUSA interpreted the general provisions of the articles of incorporation as “a kind of open-ended agreement by the local churches to accept in advance any and all rules and regulations which might thereafter be put in effect by the general church,”122 the appeals court disagreed. Invoking general principles of “real property law . . . contract law . . . corporate law . . . [and] trust law,” the court expressed the opinion that the articles of incorporation were a present expression of the intention to remain loyal to the greater Episcopal Church.123 The court’s language reflects a practical assessment of church structures and hierarchies without assuming a near-slavish devotion of local churches to their dioceses and denominations, regardless of the rules they adopted. Speaking out against such an automaton view of local churches, the Barker court drew the following analogy between a church and a secular organization: We think such declarations [of loyalty found in articles of incorporation and church constitutions] no more restrictive 118. 119. 120. 121. 122. 123.

Id. Id. Id. Id. at 554. See also infra note 125 and accompanying text. PECUSA v. Barker, 171 Cal. Rptr. 541, 554 (Cal. App. Dep’t Super. Ct. 1981). Id.

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of future amendments to the articles of incorporation than would be similar statements in an automobile dealer’s articles that it would always distribute General Motors products and always be bound by General Motors rules and policies, or statements in a political club’s articles that it would forever support the Democratic Party and be forever bound by the latter’s rules and platform. A subsequent switch of affiliation by the dealer to Ford, or by the political club to the Republican Party, would, under neutral principles of law, furnish no basis for a claim of express trust by the superseded automobile manufacturer to possession of the dealer’s showroom and repair shop or a claim by the deserted political party to possession of the political club’s meeting premises and bank account. As in matrimony, always and forever do not preclude a change in heart and do not create an express trust in another’s property. Under neutral principles of law no express trust was created by the articles of incorporation of the three churches incorporated prior to 1958.124 The court’s analogy to a franchise of General Motors reaffirms that the purpose of neutral principles is to analyze church property disputes like secular ones. The Barker court did not have to question Church doctrine to realize that a blanket assumption that member organizations accept all decisions of their superiors is untenable. Barker recognized that churches, just like franchises, may have a general, but not unconditional, loyalty. This approach seems more neutral in fact, and its refusal to place extra burdens of loyalty upon churches is both respectful of the local churches and realistic. The third and fourth factors considered by the court in Barker proved decisive in its decision that the property of one of four parishes should go to the diocese. Specifically, the court examined Canon 10.06, adopted in 1958, which made property distributable

124.

Id.

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to the diocese when the parish dissolved.125 Because the Church of the Holy Apostles was formed after 1958, it was found to have implicitly adopted the canon into its articles of incorporation.126 Additionally, Holy Apostles’s articles of incorporation specifically mentioned two sections of California statutory law127 dealing with the relationship between local and national bodies, and referred to the church as a subordinate body of a national church and the Diocese of Los Angeles itself.128 In the course of its opinion, the Barker court disclosed a strong preference for national church documents such as the Canons. Yet, the Barker court questioned whether pre-1958 churches had implicitly adopted Canon 10.06.

B.

DIOCESE-FAVORING DECISIONS IN THE EPISCOPAL CHURCH

Barker remains an outlying case in its recognition that churches parallel secular organizations in many ways and in its willingness to apply the same legal reasoning to churches that might be applied to business parties. Barker is also exceptional in its outcome, because cases litigated between Episcopal par125. After the 2003 update, analogous language appears in Canons 7.04 and 7.05, available at: http://www.churchpublishing.org/general_convention/pdf_const_2003/ Title_I_OrgAdmin.pdf. It states: Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. Existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part and subject to, this Church and its Constitution and Canons. Sec. 5. The several Dioceses may, at their election, further confirm the declared under the foregoing Section 4 by appropriate action, but no action shall be necessary for the existence and validity of the trust. Id. 126. PECUSA, 171 Cal. Rptr. at 555 (“It is arguable that the articles of Holy Apostles incorporated by reference the then existing Canon 10.06.”). 127. CAL. CORP. CODE §§ 9203, 9802 (West 2006) (repealed Jan. 1, 1980). Until 1939, the Code was silent about the relationship between the incorporation of a subordinate body into a national body. This date-stamp left the first two churches — St. Matthias and St. Mary’s — untouched, because they incorporated before 1939. The third church, Our Saviour, incorporated in 1944 but the articles of incorporation for the church neither declare nor suggest that it was being incorporated as a subordinate to a national body. PECUSA, 171 Cal. Rptr. at 554–55. 128. Id.

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ishes and dioceses are typically resolved in favor of the diocese. Although courts hearing subsequent disputes applied the analysis articulated in Barker, the presence of national church canons expressing the right of the diocese to maintain control of seceding church property often superseded the other factors. These other decisions fail to examine whether the implied trust is a valid assumption and they overlook signals that churches did not intend unquestioning loyalty to the diocese. 1. Episcopal Diocese of Massachusetts v. Devine In Episcopal Diocese of Massachusetts v. Devine,129 the court decided “as a threshold matter . . . that St. Paul’s [parish] holds its property in trust for the Diocese . . . . That trust exists principally and most clearly by virtue of [the Episcopal Church’s] adoption, in 1979, of Canon I.6.4 (the so-called ‘Dennis Canon’) in combination with the statement in the bylaws of St. Paul’s that it accedes to the Canons.”130 The bylaws of St. Paul’s provided that it “accede[d] to the Constitution, Canons, doctrine, discipline and worship of the Protestant Episcopal Church in the United States of America, and to the Constitution and Canons of the Diocese of Massachusetts, and acknowledge[d] their authority.”131 The court held that the property belonged to the diocese. The court’s analysis, while reasonable on its face, ignores evidence of the congregation’s intent and its day-to-day selfgovernance. The Episcopal Church had adopted the Dennis Canon, whereas the local parish itself had not adopted the Canon. Moreover, while the Dennis Canon was adopted in 1979, St. Paul’s had bylaws dating back to 1890.132 The most recent revision was done in 1935.133 When the rift between St. Paul’s

129. 797 N.E.2d 916 (Mass. App. Ct. 2003), review denied by Episcopal Diocese of Massachusetts v. Devine, 801 N.E.2d 803 (Mass. 2003). 130. Id. at 923. 131. Id. at 919. 132. Id. 133. Id. Additionally, the court never states or implies that St. Paul’s expressly assented to church canons (particularly the Dennis canon) in or after 1979.

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and the diocese arose in 1996,134 the church notified the diocese of its complaints and adopted new bylaws and articles of incorporation, removing language about allegiance to the diocese or PECUSA.135 Furthermore, the court brushed aside a 1957 deed conveying the property from the Trustees of Donations (the diocese) to St. Paul’s, stating that “the conveyance was free of the trust imposed by the original deeds.”136 The deed included a statement “that the property was placed in the name of St. Paul’s free of the trust imposed by the deeds.” The court dismissed this statement, concluding that it “appears less a determination to release the property to the autonomous control of St. Paul’s than a matter of administrative convenience.”137 Notably, appellants’ counsel in Devine admitted that the Dennis Canon was adopted by the Episcopal Church in 1979 — in the wake of Jones v. Wolf — in an attempt to secure its property against future seceding parishes.138 These facts suggest that PECUSA — a legally savvy organization — strategized to maintain a stronghold over church property, while member parishes likely remained relatively uninformed about impending legal difficulties if they attempted to secede. Yet courts seem to overlook 134. The dispute at St. Paul’s was two-fold. First, the local church was upset about the Diocese’s adoption of policies allowing the ordination of practicing homosexuals and the marriage of same-sex couples. Second, the record reflects frustration by parish leaders with the diocesan response to allegations of sexual misconduct by its then-rector. Id. 135. Id. Admittedly, St. Paul’s did not submit the new articles and bylaws for approval, but neither did the diocese take any affirmative steps to approve or disapprove of them. 136. Id. at 924. 137. Id. 138. The court stated: The Dennis Canon appears, in fact, to reflect an attempt by PECUSA to implement one illustrative example offered by the Court in Jones v. Wolf as a method for a hierarchical church to facilitate future resolution of church property disputes under neutral principles of law. See 443 U.S. at 606, 99 S. Ct. 3020. The record does not reveal when in 1979 PECUSA adopted the Canon, but Appellants’ counsel confirmed at oral argument that it was after the issuance (on July 2, 1979) of the opinion in Jones v. Wolf. See also Bishop & Diocese of Colo. v. Mote, 716 P.2d 85, 105 n.15 (1986) (stating that Dennis Canon was adopted in September of 1979). Id. at 923 n.20. Of course, PECUSA would have succeeded under a deference or implied trust model, so adopting the Dennis Canon appears to be an effort to ensure continued control over local church properties, in light of the court’s changing standard of review.

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the behind-the-scenes strategizing. Instead, like the court in Bennison v. Sharp, they readily accept claims such as “the undisputed facts show the Protestant Episcopal Church to be hierarchical with regard to property, as well as spiritual matters.”139 2. In re Church of St. James the Less The court in In re Church of St. James the Less140 reached a similar result, ruling that the church held property in an express trust for the diocese. The court based its reasoning on the Dennis Canon, noting that the church “waited 20 years after the adoption of the Dennis Canon to take action inconsistent with it.”141 St. James the Less was incorporated in 1846, before it even joined the diocese,142 and amended its charter in 1919 and 1967143 — all long before the Dennis Canon was enacted. The court acknowledged that in 1967 the Episcopal Church canons contained no express statement of a trust over local church property, and St. James the Less “never expressly or implicitly acceded to the Dennis Canon, but rather disclaimed any accession.”144 Nevertheless, the court assumed a blanket acceptance of Church canons and doctrine: “The Diocese contends that the question of a trust in the [c]hurch’s property in favor of the Diocese may be decided on the basis of the Dennis Canon alone, and the Court agrees.”145 In a strongly worded dissent, President Judge Colins rejected the diocese’s argument, pointing out that parishioners had donated and funded the purchase of the real and personal property associated with St. James and that the deeds indicated that St. James had always owned the property in fee simple.146 He further argued that individual parishes in the Episcopal Church had

139. 140. 141. 142. 143. 144. 145. 146.

Bennison v. Sharp, 329 N.W.2d 466, 472 (Mich. App. 1982). 833 A.2d 319 (Pa. Commw. Ct. 2003). Id. at 325. Id. at 321. Id. Id. at 323. Id. at 324. Id. at 327 (Colins, J., dissenting).

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always exercised broad control over their own affairs.147 Judge Colins suggested that the St. James majority misread Jones v. Wolf, which “does not say that ‘a national church may enact canons’ [unilaterally] . . . . It suggests that a national church and its individual parishes should jointly agree that in the event of a schism within a parish the faction loyal to the national church will retain control of the church property.”148 Jones did not sanction — or even suggest — that a denomination could unilaterally impose a trust on property by amending its governing documents and claiming that the individual church would be deemed to hold property in trust for the diocese.149 An examination of the procedures for amending the Episcopal Church canons supports the view that individual churches do not automatically assent to new canons. Canons are enacted and amended by a concurrent vote of the House of Deputies and the House of Bishops at PECUSA’s General Conventions. The House of Bishops is comprised of the bishops of all the dioceses. The House of Deputies is intended to be the somewhat more “democratic” body, comprised of clergy and laity. The apparently democratic thrust of this House is belied by the procedures used to select its members; each diocese elects a given number of House of Deputies members at its own Diocesan Convention. Diocesan conventions are often political and theological powder kegs. A conservative church in a relatively liberal diocese has little hope of rallying enough votes to send a conservative representative to the House of Deputies. In fact, sometimes all of the conservative parishes in a diocese vote in a block to elect a single conservative member to the House of Deputies. Furthermore, a single conservative member of the House of Deputies is unlikely to be able to affect votes on canon amendments. An argument can be made that if conservative churches were effectively without representa-

147. Id. (emphasizing the independence of Episcopal churches as compared to Roman Catholic Churches, Judge Colins noted: “This structure is in stark contrast to the Roman Catholic Church, which exercises a rigid hierarchical control over parish affairs that extends in a direct line up to the Pope.”). 148. Id. at 328–29. 149. Id. at 329.

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tion at a General Convention, then canons amended during that convention should not bind conservative churches. The lack of minority church representation in the diocesan rulemaking bodies may not seem odd within the context of American politics, in which minorities are often underrepresented. But this democratic decision-making process may not be appropriate for a collection of largely autonomous organizations. Perhaps the Episcopal Church is meant to operate less like a democratic government and more like a corporation or a voluntary social organization, where dissatisfied members can take steps to secede while preserving their financial interests. In the context of government entities, secession of a small unit is impractical. A city cannot leave a state because it is geographically trapped. Majority-rule democracy presents the best approach for encouraging peace and unity. But a church can leave a diocese and still thrive. In essence, binding majority-rule democracy may be the best-functioning system for a state, but not for a voluntary organization. For voluntary organizations like the Episcopal Church, majority-rule democracy may serve as a general organizing principle, while its member parishes retain the freedom to secede when they are dissatisfied with the organization’s choices and direction. Not only is there a plausible argument that St. James the Less did not assent to the Dennis Canon and therefore should not be bound by it, but Judge Colins also invokes trust law in favor of the local church, pointing out that the majority’s reading of Jones “turn[s] our law of trusts on its head when it concludes that a beneficiary can, as the Dennis Canon purports, unilaterally create a trust.”150 Judge Colins noted that “[t]here is simply no mechanism by which a beneficiary can create a trust in Pennsylvania without the explicit consent and cooperation of the settlor.”151 The court rejected Judge Colins’s arguments, holding 150. Id. 151. Id.; see also Presbytery of Beaver-Butler of the United Presbyterian Church v. Middlesex Presbyterian Church, 489 A.2d 1317, 1324 (Pa. 1985) (“In order for a court to find that a trust has been created there must exist in the record clear and unambiguous language or conduct evidencing the intent to create the trust. This Court has previously held . . . [a] trust must be created by clear and unambiguous language or conduct, it can-

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that St. James held property in an express trust under the Dennis Canon. 3. Trustees of Diocese of Albany v. Trinity Episcopal Church of Gloversville In court in Trustees of Diocese of Albany v. Trinity Episcopal Church of Gloversville152 also approved the retroactive application of the Dennis Canon. The Court accepted that the “documents of conveyance, the language on the face of the deeds, concerning the three parcels of land surrounding the church parcel, [do] not indicate that Trinity Episcopal Church or its predecessors acquired the property with the intention to hold it in trust for plaintiffs.”153 Nevertheless, the majority relied on the Dennis Canon, in conjunction with Trinity’s certificate of incorporation highlighting its integral role in the Episcopal Church,154 and ruled in favor of the diocese. According to the court, “[a]lthough [the Dennis Canon] was absent from the national canons at the time Trinity Episcopal Church acquired the parcels of land . . . retroactive application of such trust provisions would not . . . extinguish the real property rights of every local church or parish throughout New York, so long as a court finds that the trust provisions were declaratory of existing church policy.”155 It is unclear how the court defines “existing church policy,” but a clear definition is necessary if approval of and submission to “existing church policy” at one time is tantamount to approval and submission at some later time. Trinity Church of Gloversville may not have believed that the “existing church policy” at the time it joined the Episcopal Church was for the local church to hold its property in trust for the diocese.

not arise from loose statements admitting possible inferences consistent with other relationships.”) (emphasis in original omitted). 152. 250 A.D.2d 282 (N.Y. App. Div. 1999). 153. Id. at 286–87. 154. Id. at 287–89. 155. Id. at 288.

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The Colorado Supreme Court in Bishop and Diocese v. Mote156 read the neutral principles test extremely broadly in terms of what courts were allowed to infer from the relevant documents.157 In Mote, a majority of the local church wished to leave the denomination, while a minority wanted to remain Episcopalian. The court gave great weight to the ways in which the parish had acceded to the government of the general church, particularly with respect to property.158 Declaring that “truly neutral analysis” should begin without “any presumption,”159 the court held that no specific language was required to create “an express trust created by implication in fact.”160 A court need not shy away from “documents, or provisions in documents, that intertwine religious concepts with matters otherwise relevant to the issue of who controls the property.”161 The Mote court broke from the Barker majority on this point. As Greenawalt noted, the Mote court declared that “various canons that specify forms of control over local property by the general church ‘demonstrate the irrevocable nature of the dedication of property by the local church corporation for the purpose of advancing the work of PECUSA.’ These were sufficient to establish that a trust had been imposed for use of the general church.”162

IV. SOMETHING IS MISSING: FIVE FACTORS MISSING FROM MOST COURTS’ ANALYSES The muddy analytic waters surrounding current conceptions of neutral principles and deference make it difficult for both churches and dioceses to order their affairs to protect their expectations and interests. For some hierarchical churches, however, such as the Episcopal Church, applying either test leads to a foregone conclusion — the diocese retains parish property and 156. 157. 158. 159. 160. 161. 162.

716 P.2d 85 (Colo. 1986). Greenawalt, supra note 6, at 1897. Id. Mote, 716 P.2d at 99. Id. at 103, n.14. Id. at 101. Greenawalt, supra note 6, at 1898.

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buildings on the basis of the Dennis Canon, while the separating parish finds itself without a house of worship. In ruling in favor of the diocese, courts rely heavily on the Dennis Canon and the implied trust doctrine — or in the case of Mote, an “express trust created by implication in fact.”163 Yet while the church canons are important pieces of the legal puzzle, courts generally overlook a host of other factors that would be extremely helpful in illuminating whether or not an implied trust truly existed. Such a uniform result is not inherently problematic, but a closer examination of the Episcopal Church’s operations and other factors suggests no relationship of implied trust between the parish and the diocese. For example, parishes bear the brunt of the financial burden of caring for the greater national church, but under the application of neutral principles and deference they often lose the very properties they have purchased, improved, and maintained. This result is common in part because courts rarely engage in a deep factual analysis of how the church-diocese relationship works. Courts generally look to the church canons, the articles of incorporation, and perhaps a few other secular documents such as property deeds. But this inquiry ignores how the organization operates and the official procedures that shaped the canons and other documents. Perhaps most importantly, it fails to recognize vast imbalances in bargaining power between small, local parishes and large dioceses. These imbalances play a large role in keeping the canons as they are, despite deep disagreement between local churches and dioceses regarding their content. The limits of the current neutral principles approach prevent the court from looking into matters of great importance for many church members, and according to Greenawalt, “the greater the exclusion, the more legal results are likely to diverge from actual understandings of those concerned.”164 This Note argues that the understandings and expectations of church members should be of critical importance to courts when they decide how to allocate church property and that those expectations can be determined without delving into matters of church doctrine. Courts should 163. 164.

Mote, 716 P.2d at 103, n.14. Greenawalt, supra note 6, at 1884–85.

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apply a refined neutral principles approach, considering more salient factors in order to allocate church property more equitably. Courts should examine five factors when adjudicating disputes over Episcopal properties:165 (1) assessments to the dioceses, (2) the purchase and maintenance of property, (3) expectations of parishioner-donors, (4) change in membership between approval of the canons and present-day disputes, and (5) the lack of bargaining power for new churches. Such an approach requires a fact-intensive inquiry accounting for the expectations and understandings of local churches, their members, and the diocese. This approach avoids the current problem of relying too heavily on a single factor that exists in all Episcopal cases, such as the Dennis Canon, and instead seeks to understand the particular factual and legal situations surrounding each case. Applying this approach to Episcopal Church cases will likely result in more favorable outcomes for local parishes, but not in all cases. For example, if a parish and its regional authority were both well-informed and free to forge their relationship as they saw fit, and the church chose to cede its property to the regional authority — perhaps for liability reasons — then a finding for the regional authority would be appropriate. Likewise, if the regional authority provided the funding for the church building and the local church was purely a beneficiary of the regional authority’s largesse, then a finding for the regional authority may also be appropriate. These hypothetical situations, however, do not reflect a typical Episcopal Church property dispute.

A.

ASSESSMENTS TO DIOCESES

The flow of funds between levels of church hierarchy should be a factor in church property disputes, because it demonstrates where the decision-making power is held within the organization. In the Episcopal Church, individual parishes financially support the diocese and PECUSA by paying an essentially mandatory 165. While applied here in the Episcopal setting, these factors can also be applied broadly to church property disputes in other hierarchical denominations.

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annual “assessment,” generally a percentage of church collections.166 Barker suggests that a relationship of express trust may not be implied from assessments paid to the diocese,167 rejecting arguments that assessments are an expression of loyalty to the national church. Although Barker is an encouraging example of a court’s willingness to examine this first factor, it does not go far enough. The role of assessments suggests that local churches are not simply holding property in trust for the greater diocese, while the diocese is free to make decisions regarding that property as it pleases. Assessments — and the ability of local churches to withhold them — suggest that the daily relationship between churches and dioceses follows a model in which the church acts largely independently, using its funds and property as its local clergy and lay leadership see fit. Local churches do not blindly accept the positions of their dioceses. Yet under the present approach, even though the parishes support the diocese,168 the diocese frequently gains control of property when churches secede.169 Dioceses have few ways of raising money. Apart from small endowments and limited individual property holdings, most of their funds are generated in the form of assessments from churches. For example, in 2004 the 166. For a sense of how the assessment process works in practice (here where a dissenting diocese threatens to withhold its assessment from the national church), see Julia Duin, Dioceses Threaten to Cut Off Their Tithes, WASH. TIMES, Aug. 26, 2003, at A1. 167. PECUSA v. Barker, 171 Cal. Rptr. 541, 555 (Cal. App. Dep’t Super. Ct. 1981) (“It is true that these churches voluntarily conformed to certain financial requirements of the Diocese, such as filing annual financial reports and securing permission to mortgage real property. None of this, however, amounted to the creation of an express trust.”). 168. While variations will exist among dioceses, it is interesting to examine the financial relationship between the national church and the dioceses as a model for the financial relationship between a diocese and its member churches. For example, in 2005, 61% of PECUSA’s budget came directly from the dioceses, which are requested to give 21% of their budgets to PECUSA. Melodie Woerman, Toward Columbus: Mission priorities drive proposed budget of $152 million, Apr. 11, 2006, http://www.episcopalchurch.org/ 3577_73505_ENG_HTM.htm. 169. Some commentators propose that a “brand value” approach should govern, which may suggest that assessments to the diocese have some independent value. “Episcopalians benefit from an abundance and diversity of parishes, which provide worship choices, multiple venues for meetings and programs, church homes away from home for travelers, and enhanced public awareness of the Episcopal Church.” Lionel Deimel, Property Constraints, THE LIVING CHURCH, Sept. 2004, at 38–39.

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Western Diocese of Tennessee received approximately 64% of its budget from voluntary commitments from churches.170 That same year, the Episcopal Diocese of Nebraska estimated it would receive 80% of its income from church pledges.171 And in 2006, the Diocese of Atlanta estimated that a stunning 84% of its resources would come from individual churches.172 Clearly, the diocese as a functioning body and administration cannot exist without the financial support of individual churches. Finally, churches act autonomously in their daily financial decision-making. In short, local churches do control their own properties. Each church vestry has a treasurer, and decides how church funds will be spent. One such decision is whether or not to withhold the assessment. Courts could give this day-to-day autonomy more weight in the resolution of church property matters. Assessments and the withholding of assessments should signal to courts that churches provide the core of support for the diocese. Viewed together, these features support the view that churches controlling their own properties before secession should be able to control their own properties after secession.

B.

PURCHASE OF PROPERTY; BUILDING AND MAINTENANCE OF FACILITIES

The second factor that should be weighed heavily by courts is whether the disputed property was purchased by the diocese or by a local parish. Episcopal churches often buy their property and buildings with little or no assistance from the diocese. It would be manifestly unjust if the diocese held legal ownership of real property that the parish has wholly financed.173 170. WESTERN DIOCESE OF TENNESSEE 2004 BUDGET, http://www.episwtn.org/pdf/ 2005_Adopted_Budget.pdf. 171. EPISCOPAL DIOCESE OF NEBRASKA BUDGET 2004, http://www.episcopal-ne.org/ diocese/financial/budget2004.htm. 172. EPISCOPAL DIOCESE OF ATLANTA BUDGET, 2006, http://www.episcopalatlanta.org/ media/SummaryBudget2006.pdf. 173. Perhaps an apt analogy is to a restaurant franchise: when a hamburger franchise separates from the corporation, the individual restaurant may maintain its building if it paid for it. Certainly the restaurant will be subject to a non-compete clause, but one could argue that churches would not be violating an equivalent non-compete clause if they sepa-

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Barker again provides a strong starting point when it suggests that a church’s individual purchase and maintenance of property should weigh in favor of its right to retain property postsecession, rejecting the implied trust model.174 The pre-Dennis Canon property dispute Bjorkman v. PECUSA and Diocese of Lexington similarly relies on the individual church’s property purchase in holding for the individual church.175 Yet other cases — including Protestant Episcopal Church of the Diocese of New Jersey v. Graves176 — give little weight to a parish’s purchase of disputed property and its funding of improvements upon that property. Instead, they rely heavily on what is essentially a unilaterally-imposed trust by the dioceses upon the churches. Statements like this one from Episcopal Church in the Diocese of Connecticut v. Trinity–St. Michael’s Parish are all too common: “The Dennis Canon . . . enacted at the General Convention of the Episcopal Church in 1979, is an express trust provision.”177 The dissent in St. James the Less points out the error in reasoning behind the assumption of a unilaterally created trust,178 but the arguments fall on deaf ears. Courts should follow the approaches applied by the Barker decision and advocated by the St. James the Less dissent. When a parish has purchased its own property, built its own buildings, and maintained its own facilities, the building for all practical matters belongs to the parish. This argument is further strengthrate. Much like a hamburger restaurant will not find competition from, say, Vegan Co-Op Café, a parish that believes homosexuality is a sin is not competing against a more liberal church for members. On a practical note, Barker echoes the franchise argument in favor of local churches when other factors indicating an express trust in favor of the diocese are missing. See PECUSA v. Barker, 171 Cal. Rptr. 541, 553–54 (Cal. App. Dep’t Super. Ct. 1981). 174. Id. at 551. 175. 759 S.W.2d 583, 587 (1988) (“It should be remembered that St. John’s acquired the property with no assistance from PECUSA; that the property was managed and maintained exclusively by St. John’s; that St. John’s improved and added to its property; and that PECUSA deliberately avoided acquisition of title or entanglement with the property to ensure that it would not be subject to civil liability. The record is clear that PECUSA’s relationship with St. John’s was exclusively ecclesiastical and St. John’s was at all times in control of its temporal affairs.”). 176. 417 A.2d 19, 21 (N.J. 1980). 177. 620 A.2d 1280, 1284 (Conn. 1993). 178. See supra discussion accompanying notes 146–48.

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ened when coupled with a deed in the name of the church, rather than the diocese. Evidence such as this should weigh strongly in favor of the local church, and courts should not rely on the Dennis Canon as dispositive evidence that disputed property belongs with the diocese.

C.

EXPECTATIONS OF PARISHIONER-DONORS

Courts should also consider the reasonable expectations of parishioner-donors when evaluating church property disputes. The donations of individual parishioners are the source of income to purchase property, yet the diocese often retains the property if these parishioners in the aggregate wish to separate from the diocese. This can be quite a surprise to parishioner-donors. Parishioners who remain with the church as it approaches diocesan secession are unlikely to consider the possibility that the goodwill donations that helped build their individual church will essentially become worthless to the parish community if the parish leaves the diocese. Some bishops have suggested that Courts should look to the expectations of parishioners and their loyalties to the parish or the diocese.179 Certainly difficulties will arise when courts conduct such a fact-intensive review, but the injustices of stripping an organization of its property — its very means of worship and outreach to the community — warrant careful scrutiny. Yet scholars have noted that parishioner expectations

179. Deimel writes: The Bishop of Pittsburgh, the Rt. Rev. Robert W. Duncan, has offered an alternative to the legalistic perspective. . . . [H]e argued that fairness requires allowing congregations to control their own property, even if they choose to leave the Episcopal Church. Parishes conduct day-to-day business with little direct contact with the diocese or national church, so that it is natural for parishioners to think of the local church as “their” church and to resent any suggestion to the contrary. Often, many generations of Episcopalians have given to the parish, not to the diocese or to the Episcopal Church. The parish, therefore, seems the proper trustee for its assets. Besides, if a congregation departs and leaves its building behind, what could a diocese reasonably do with it? The fairness argument has a strong appeal to moderates and liberals inclined to be generous toward fellow Christians. Deimel, supra note 169, at 38–39.

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are often disregarded, to the detriment of the adjudication process.180 Determining parishioner expectations is likely to be fairly straightforward. While the expectations of the original donors may no longer be discernible, the expectations of current parishioners, who have taken on the burden of maintenance, expansion, and other property costs, can be determined with relative ease. For established churches with buildings that have long been mortgage-free, this is a just approach because it acknowledges the desires of current members who have maintained the church on a daily basis, while recognizing that the interests of temporally distant owners are not the primary concern. And for younger churches still under mortgage, looking to current donor expectations is especially important, because these donors are actually financing the building itself, in addition to daily church maintenance. By the time a local church is prepared to leave its denomination, the lay leadership and the clergy have usually reached a consensus after long discussion, including at least one vote either by the entire parish or the vestry. While many church separation cases will not begin with a unanimous congregation, by the time a church has decided to announce its separation from the diocese with which it disagrees, the minority in the church — those who agree with the diocese — may well have made the decision to leave the congregation and find another church. This is especially true because church separation cases emerge based on deep theological rifts. The minority that leaves the separating church is also more likely to agree with the majority of the churches in the diocese, so those churchgoers will have a wide range of options within the denomination. Furthermore, if church splits become more frequent and parishioner awareness of property issues grows, some members may see an incentive to withhold their tithes and other donations for fear that the benefit of these gifts will be lost by the parish to the dioceses. Dioceses will then receive a smaller assessment from 180.

Belzer, supra note 6, at 125; Gerstenblith, supra note 45, at 559.

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churches, but even this change seems unlikely to prompt any shifts in Episcopal Church policy given that tempers and tension run high by the time church secession becomes an articulated option. Courts instead should take a strong position respecting the expectations of church members and donors, whose likely focus when making their tithes or bequests was not the health of the greater Episcopal Church, but that of their specific parishes. Donors are free to bequeath their properties and monies to an Episcopal diocese rather than a specific parish. Their decisions to tithe or bequeath property to a specific parish arguably reflect their intent and expectation that these donations will benefit their local parish. Those with the resources to make such a gift may have legal assistance that could aid them in guiding their gift to the diocese or to individual churches with which they have long-term and intimate ties. This is a significant factor that courts should examine and employ in their church property decisions.

D.

CHANGE IN MEMBERSHIP BETWEEN APPROVAL OF CANONS AND PRESENT-DAY DISPUTES

Courts should look to the makeup of the church and the likelihood that current parish members have assented to the canons of the Episcopal Church. Just as Greenawalt has suggested that one-time consent to the rule of a diocese does not suggest consent in perpetuity,181 a parish membership’s consent at a given point in time to abide by the rule of the canons should not be read as a blanket agreement to the canons for all time, especially as the membership of the church changes. Dead hands cannot maintain an infinite grip, especially in a voluntary organization such as a church. The Barker court wisely recognized this factor when, invoking general principles of real property law, contract law, corporate law, and trust law, the court expressed its opinion that the articles of incorporation for the church were a present expression 181.

Greenawalt, supra note 6, at 1851, 1874.

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of the intention to remain loyal to the greater Episcopal Church.182 Present members of Episcopalian churches have had very little voice in shaping the canons that purport to express their congregation’s intent. Nor have they had a significant opportunity to reform these canons,183 especially given the multiple hierarchical levels to challenge in attempting to change current canons and the minority status of those most likely to encounter property litigation. Furthermore, major questions remain whether churches were informed about the import of the canons and were given an opportunity to consider their full implications. Additionally, courts should look to the changing membership of churches to determine whether a diocese can claim active, current, and ongoing consent by churches to the canons of PECUSA. In some cases there may be evidence of consent; for example, where a church vestry annually votes to affirm its dedication to the canons. But where a church has been silent, or where it has disavowed the canons, courts should hesitate to assume consent. This is especially true for the controversial Dennis Canon, of which most of the current church membership is likely unaware. Treating the Dennis Canon as dispositive does great injustice to a church membership that likely never provided its support for such language, especially when viewed in light of other evidence of a parish’s financial autonomy and independent management of church property.

E.

LACK OF BARGAINING POWER FOR MISSIONS

Courts should consider that newly established churches, called “missions,” often lack authentic bargaining power when establishing their relationships with the diocese. Contract law and the Uniform Commercial Code184 have long recognized the concept of unconscionability, where a bargain made between two parties with unequal bargaining power can be nullified by a court, in 182. 183. 184.

PECUSA v. Barker, 171 Cal. Rptr. 541, 554 (Cal. App. Dep’t Super. Ct. 1981). See supra note 7. U.C.C. § 2-302 (1999).

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whole or in part, to avoid unconscionable results. Courts routinely examine the relative benefits of the bargain to each party at the time of its making, along with the relative bargaining power of the parties and the nature of the negotiation.185 This principle is equally applicable to disputes between powerful dioceses and small, newly-established parishes. Even if one believes that established churches “get what they bargained for,” missions, which are spun off from existing churches, have little bargaining power when forming their relationships with the diocese. In these contexts, acquiescence to all of the canons of the national church may reflect less the optimistic consent of a new organization and more this inequitable relationship between the two parties. In some sense, PECUSA is a monopoly supplier — a mission spun off from a parent parish must join the originating diocese and national organization in order to be recognized by the denomination. A mission in Western Washington generally cannot elect to join the Central Florida diocese.186 If a church was unable to bargain with the diocese at its inception, perhaps it should not be bound to all the current canons of the national church. While a mission may wish to contract to maintain its property in the event of a split, it is incapable of doing so. Moreover, it is unlikely that missions — essentially small, “startup congregations” led by priests with no legal training — will even consider property issues at their inceptions, because many begin their organizational lives without any property. In contrast, the diocese and national church employ a small army of attorneys and are fully informed of the legal implications surrounding a mission’s inception. Furthermore, the legal status of missions with respect to the validity of the Dennis Canon can be questioned. Under the 185. 17A AM. JUR. 2D Contracts § 277 (2004). 186. Despite this general prohibition, as of December 2006, twenty-one U.S. parishes have left the Episcopalian Church in the U.S. and have joined Archbishop Peter J. Akinola's church in Nigeria. Other U.S. churches that have left the national church have joined archbishops in Rwanda, Uganda, and various provinces in Latin America. Lydia Polygreen & Laurie Goodstein, At Axis of Episcopal Split, an Anti-Gay Nigerian, N.Y. TIMES, Dec. 25, 2006, at A1.

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Barker court’s analysis, churches formed before the passage of the Dennis Canon (or its predecessors) are not subject to it.187 If a mission has not consented to be under the rule of any national church canons, they may be free of the Dennis obligations as the progeny of existing churches. The founding members of missions are members of established Episcopal churches, and if those members have not acceded to the canons, it is arguable that the organizations they form have not either.

F.

POTENTIAL SOLUTIONS: FROM WHENCE WILL THEY COME?

The five factors above represent a selection of items that courts should take into account when analyzing any church property dispute. A full and fair hearing must: (1) consider the documentation traditionally admitted under neutral principles, (2) examine the flow of funds between a church and diocese, (3) recognize the financial investments of individual churches in their properties and buildings, (4) respect the expectations of parishioner-donors, and (5) consider whether actual consent has been given to the Dennis Canon from both new and established churches. None of these recommendations suggests that courts should look into the substance of church doctrine, or assess property disputes based on an unacceptable “departure-from-doctrine” model. Instead, a consideration of these additional factors simply reflects a respect for churches and their members, and an understanding of the relative power between churches and dioceses. While this proposal pushes the boundaries of neutral principles analysis, fund transfers and similar evidence are hardly judicial assessments of the wisdom of religious doctrine. This proposal could protect the property of a local church or cede it to the greater diocese, whatever the views of either party and without regard to whether the local church has merged with or diverged from the greater national church or any mainstream vision of “normal.”

187.

PECUSA v. Barker, 171 Cal. Rptr. 541, 555 (Cal. App. Dep’t Super. Ct. 1981).

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For a supporter of church property dispute reform, the most difficult question is who will undertake the massive challenge of putting these improvements into action? 1. Court-Based Reform Other than the churches themselves, courts have the greatest potential for bringing about reform in church property disputes. The neutral principles approach leaves room for the judiciary to examine a wide variety of documents and practices that may be relevant to these cases. Because the five factors do not incorporate an analysis of church doctrine or theology, their consideration is permissible under a neutral principles analysis, without implicating First Amendment concerns. Instead, they treat churches much like secular, voluntary organizations. Furthermore, church property disputes are not so common that individual states have built up massive and irreversible bodies of precedent. A judge would not have to be a maverick to decide that the Dennis Canon is not dispositive and should be weighed against other factors that give insight into the workings of churches as organizations. Once it becomes clear that the five factors are appropriate objects of judicial inquiry, churches will be expected to “fill in the gaps” with extrinsic evidence of intent, such as financial data on donations, assessments, and real estate purchases. The adversarial system ensures that the litigants — in this case churches and dioceses — will do the bulk of the fact-finding for the courts. Courts would have to do a more thorough fact evaluation with a fuller record, but the information-gathering process would impose few additional burdens on the court. 2. Intra-Church Resolution If courts do not broaden the neutral principles inquiry on their own initiative, two other institutions may exert influence over church property disputes. The Episcopal Church itself could resolve this problem by entering negotiations with seceding churches and by declining to exert absolute authority over church

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property during intra-church adjudicatory proceedings. Some bishops have suggested this approach in an attempt to soothe already inflamed relationships within the church and comport with concepts of Christian generosity.188 An intra-church resolution, however, seems unlikely. First, the issues prompting parishes to split from their dioceses are frequently polarizing and arise out disputes over fundamental principles. Currently, the major issue in the Episcopal Church is the ordination of homosexual priests. This and other issues turn on Biblical interpretation and reinterpretation, reflecting deep social, moral, and political biases in both directions. Unfortunately, the Episcopal Church is an imperfect human institution, and a diocese has little incentive to grant leniency or “play fair” when tempers run high and a parish decides to leave the denomination based on fundamental theological differences with diocesan leadership. Given that seceding churches are in the theological minority, they will not have the ability to rally support for canonical changes they desire. Still, financial incentives — for example, if there were a downturn in collected assessments from the churches — might prompt the Episcopal leadership to relinquish its stranglehold on church properties. If the national Episcopal Church feels a financial pinch, it may be willing to rethink its policy on property. Then again, bishops may prefer to entrench themselves, wait until churches separate under the current regime, and sell the property that reverts to the diocese to recoup their losses.189 Also, a downturn in collected assessments will damage the individual parishes just as it does the diocese (because it signals a downturn in overall donations), unless each individual member of the church affirmatively allocates his or her donation only to the parish (an option that currently exists, but is infrequently used).

188. Deimel, supra note 169, at 38–39. 189. While church property with religious-looking buildings may not be as marketable as say, a shopping center, it still has strong resale value, either to another church or possibly for the land itself.

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Downturns in assessments may become more significant in church property disputes, so time may soon tell their effect when coordinated en masse. The Washington Times reported in 2003 that a number of large and vocal churches voted to significantly reduce or eliminate their assessments to the national Episcopal Church in the wake of Gene Robinson’s installation as the openly gay Bishop of Vermont.190 If conservative dioceses join together in an effort against the national church, the financial effect could be stunning. As the Washington Times points out, “with a $48 million yearly budget at stake, not to mention billions worth of assets and church property, dissenting dioceses could do serious damage if they all withheld funds.”191

V. CONCLUSION In resolving intra-church disputes, courts have historically confined themselves to an examination of a few basic documents that do not necessarily provide a realistic picture of how churches operate on a daily basis. In ignoring other evidence that might illustrate a parish’s intent to hold property separately from the national church, the present approach fails to respect the legal claims and expectations of congregants. There is some recognition among legal scholars that the current approach might be doing great injustice to individual parishes and their members, but there is little sign of change on the horizon. To avoid such an unjust result, when determining whether a church or a diocese has a right to the seceding church’s property, a court must look beyond official church canons and consider questions such as: Who paid for the property? What were the true expectations of parishioners, who, after all, are the body of the church? What was the balance of bargaining power when coercive church laws were passed? The system is broken, and at this crucial moment nobody is rushing to fix it. The courts, the legislatures, and the churches themselves must undertake a critical assessment of relevance of 190. 191.

Duin, supra note 166. Id.

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Columbia Journal of Law and Social Problems

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church doctrine, canons, and deeds to intra-church property disputes. Courts are frequently the final arbiter of intra-church property disputes and they should conduct an intensive factbased inquiry to determine whether property should be allocated to a local church or its diocese. They should consider the flow of funds between church hierarchical levels, the sources of funding for church properties and buildings, the expectations of parishioner-donors, changes in church membership, and imbalances in bargaining power between the churches and the diocese. Nothing bars courts from examining these factors, which require no assessment of church doctrine and comport with the current neutral principles framework. Consideration of these five factors, in addition to traditional neutral principles, will lead courts to richer, fuller, and more equitable resolutions of church property disputes, while abiding by the constitutional constraints of the separation of church and state.