Secession sends churches into unknown territory

No easy answers on who really owns church property

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With an Episcopal diocese that wants to secede from its denomination and several Presbyterian Church (USA) congregations that are trying to do the same, Western Pennsylvania courts could soon be awash in lawsuits over church property.

What is at stake beyond souls are millions of dollars in assets and in buildings where generations have worshiped. Activists for both the denominations and seceding parishes express public confidence that civil courts will rule on their favor. But experienced attorneys on both sides believe the outcomes uncertain. That may be especially true if a whole diocese tries to secede -- which is without legal precedent.

"Property law varies from state to state. It varies from one end of the commonwealth to the other," said Michael McCarty, a Philadelphia attorney who has represented several churches that want to leave the mainline Presbyterian Church (USA) for the more conservative Evangelical Presbyterian Church.

Because the state Supreme Court has ruled that church cases will be decided on the basis of their deeds and other legal documents, "I suspect that in Pennsylvania [decisions] are going to come down to a case-by -case, parcel-by-parcel, analysis," he said.

The original deed for a church founded in the 1780s might say nothing about entrusting its property to a denomination. But if it purchased additional property later, that parcel might have been explicitly held in trust for a larger church body.

"Trust" is the key word. Some denominations have a constitutional clause saying that all church property is held in trust for the denomination. But in others, such as the Baptists or the United Church of Christ, there are no trust clauses. Over the past two years, for instance, about 15 congregations broke from the Penn-West Conference of the United Church of Christ. But there were no fights over who got the buildings.

Those who defend trust clauses say they honor and preserve the gifts that people made over generations for the work of their religious tradition.

"Courts have jurisdiction over dirt and land and property. But a church, a presbytery, a diocese, has to see the parishes as mission sites. They're about sharing the gospel, not about real estate," said the Rev. Mark Tammen, counsel to the General Assembly of the Presbyterian Church (USA).

"We have a lot of congregations in communities that have changed language, changed character, and yet the presbyteries have kept the site to accompany a different group of people. That is how the trust clause works."

Within both denominations are factions who believe that the national church has compromised classic Christian tenets, such as belief in salvation through Christ alone. But the headline issue has been sexual ethics, chiefly the affirmation of gay relationships, which most conservatives believe shows a disregard for biblical authority.

According to the Episcopal Church, up to 25 breakaway parishes across the country were litigating over property in late October. Where courts have ruled, dioceses have usually kept the property. In the PCUSA, where at least 13 churches have gone into litigation, Mr. McCarty said, final court rulings have all allowed departing congregations to keep the property.

Of three Western Pennsylvania PCUSA churches that have voted to join the Evangelical Presbyterian Church, only Peters Creek in the Washington Presbytery has gone to court. Beverly Heights Presbyterian Church in Mount Lebanon negotiated its property's release from the Pittsburgh Presbytery with a $250,000 "mission gift" to the presbytery. Memorial Park Presbyterian Church in McCandless has been in similar negotiations.

Evaluating church property

There are two ways that civil courts can evaluate church property disputes. Until 1979 most courts nationwide practiced "hierarchical deference," saying that they did not have the right to rule on church law. Their only role was to enforce what the governing church body said about ownership of the property.

In 1979 the U.S. Supreme Court gave state courts the option of using legal documents such as deeds to determine who kept the property, as long as this did not require them to interpret religious tenets. This is called the "neutral principles" approach.

But those justices added that a denomination could protect its property claims by writing into its constitution that "the church property is held in trust for the general church and those who remain loyal to it." Many denominations did so.

In 2005 the Pennsylvania State Supreme Court declared that Pennsylvania is a "neutral principles" state, where disputes will be decided on the basis of individual deeds and documents. The case involved a suit by the Philadelphia diocese against St. James the Less, an inner city Philadelphia parish. The court ruled that the parish held title to the property, but only in trust for the diocese. The diocese kept the building.

Some experts don't believe that St. James the Less will have the last word in Pennsylvania.

"St. James the Less is a really strange decision," said Nicholas Cafardi, emeritus dean of the Duquesne University School of Law and co-author of an authoritative text on Catholic church property law. It was improper for the justices to interpret the canons of the Philadelphia diocese because "any time you interpret the canon law of any church, you have to interpret it theologically," he said.

"I don't think the courts of Allegheny County have a whole lot of guidance from [St. James the Less]. It is very muddled jurisprudence."

Mr. McCarty, the attorney for the seceding Presbyterian churches, who now holds an important office in the Evangelical Presbyterian Church, said that the problem for St. James the Less was the church's own legal documents.

"When it was incorporated in the 1840s, they put into their articles of incorporation language that they intended to be subordinate to their diocese," he said, stressing that he was speaking as a private attorney, not as a church official.

Some churches, especially very old ones, have no such language. Even some churches that inserted it later at the insistence of the denomination might not have followed proper procedures for doing so, he said.

He doesn't necessarily advocate fighting it out in court. Beverly Heights, which settled peacefully with Pittsburgh Presbytery, might have won in court but lost in other ways, he said.

"It would have tied up mission money that could be used for the real purpose of the church, and it would have tied people up emotionally if it had gone all the way to the Pennsylvania Supreme Court or the U.S. Supreme Court," he said.

The Peters Creek group that seceded is pursuing litigation, believing that their documents show no trust obligation.

"A trust clause that was never acknowledged by a church founded in 1795, a trust clause that was imposed in 1983 without having been officially accepted or recognized by that church has very little credibility in my mind," said Raymond Peterson, a spokesman for the Peters Creek majority that affiliated with the Evangelical Presbyterian Church.

The Rev. Tammen, at PCUSA headquarters, believes the Pennsylvania legal ground could shift.

"The state of the law in Pennsylvania is not very stable at the moment," he said.

Although some departing congregations have accused him of encouraging litigation, he praised the agreement that Pittsburgh Presbytery reached with Beverly Heights.

"The stake of the national church is in making sure that our presbyteries get to make their own decision, based on their own mission," he said.

Diocesan split unprecedented

His counterparts in the Episcopal Church aren't speaking to the media. They face an unprecedented legal situation because now it's a diocese, not a single church, that is trying to secede.

"This is new and sad territory," said Robert Royce, a former Episcopal chancellor, now living in North Carolina, who has been an expert witness for the denomination's side. "Both in our canons and experience we have never had a diocese threaten to bolt before. As far as I am concerned, this has never been litigated to the point where there is a legal precedent which would be binding. This is all new territory for everybody."

The question may turn on what it means to "accede." Episcopal Church law requires dioceses to "accede" to the constitution and canons of the national church. The national church views accession as a binding submission, while secessionists see it as a revocable assent.

In a speech to the Executive Council of the Episcopal Church, the denomination's chancellor, David Beers, outlined steps that could be taken if a diocese attempts to leave. In addition to removing and replacing the bishop, lawsuits could be filed against the departing bishop, other leaders of the secession and a sampling of congregations that try to keep their property.

"We are quite frankly stunned to learn of the actions of priests and lay leaders who undertake to leave the Episcopal Church and yet to maintain control and ownership of church buildings and other assets that belong to the [Episcopal] Church and have been held by them only in trust," wrote attorneys Josephine Hicks and John Vanderstar, who serve on the denomination's Executive Council, in response to a critical letter from several retired bishops Thursday.

"In case after case, state and federal courts have ruled that, inasmuch as The Episcopal Church is a 'hierarchical church,' its decisions must be respected by the courts. This means that the canons ... must be honored by church leaders and if they are not so honored the courts will enforce them."

Wicks Stephens, an attorney who is chancellor to the conservative Anglican Communion Network, doesn't believe the national church should be so confident.

Although the St. James the Less case gave the property to the diocese, he said, it did not enforce the trust clause of the national Episcopal Church, known as "the Dennis Canon" after one of its framers.

"While the Supreme Court could have validated and ruled based on the Dennis Canon, they did not," he said.

In Virginia, 11 parishes that want to realign with an African province have enlisted a top national law firm. Earlier, parishes often simply relied on sympathetic lawyers who lacked expertise, Mr. Stephens said.

Now that so many parishes are leaving at once, he said, "we are going to see ... harder fought litigation. I think there's a very good chance that the parishes who hold title to their property will be able to defeat the Dennis Canon and keep their property," he said.

He believes courts will look closely at whether trust provisions of the denominations meet the standards of civil trust law.

"When you pay attention to trust law and apply neutral principles, it's very hard to justify the validity of a trust which is declared by the Episcopal Church but not with the consent of the people who have title to the property," he said.

"It's as if I came to you and said, 'I have just created a trust [for] your house, in my favor.' "

A whole diocese leaving would change the legal playing field, because trust clauses normally vest control of the property with the diocese, not the national church, he said.

Although there is no legal precedent, there is a historical one, Mr. Stephens said. During the Civil War several Southern dioceses seceded from the national church.

"No action was ever brought against them. And when the war was over, they eventually came back," he said. Strategists for the Diocese of Pittsburgh have argued that the lack of action against those dioceses shows a right to leave.

The original church of St. James the Less is empty now. A recorded message says there are no services. All of its 75 or so former members worship in a cemetery chapel across the river. They use the gatehouse of another cemetery in their old neighborhood to continue an after-school tutoring program. "There is life after litigation," said the Rev. David Ousley, the rector.

"I don't wish litigation on anybody because it's hard to go through. I wish we could have settled with the diocese. We tried, but they wouldn't."

Ann Rodgers can be reached at or 412-263-1416. First Published December 2, 2007 5:00 AM


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