This is a rather technical-legal type of post. If these things don’t interest you, please feel free to just move along now. No one will blame you.

The Inheritance of the Prodigal’s Son

I wanted to make a quick note about something that I’m sure everyone loves to talk about: church property disputes. (I can imagine you cheering right now, doing your happy dance). If you find church property fights petty and boring (honestly, who doesn’t) don’t feel like you need to read any further. But maybe you’re interested in fair, honest dispute resolution. If so, this post may be for you.

For my part, I think a diverse denomination is more God’s design for us than a system where we are all of the same mind on every detail. Schism hurts and causes lingering enmity. A small number of churches are leaving my denomination, and I’d prefer they stay. I’d prefer not to have to deal with any of this, and I think God would rather us focus on ministry and mission instead.

But these cases exist. Increasingly so, it seems. Most people probably don’t know or don’t care all that much about this question, and that’s fine. Generally, I think religious communities themselves ought to handle their own internal squabbles, thank you very much. The state really shouldn’t get involved more than they have to, and then only to provide a fair resolution of competing claims.

Sometimes individual churches (and I imagine synagogues and mosques and what have you) seek to no longer be part of their larger structure. That larger structure may have had a huge role in setting up the church or keeping it going or training its leaders or connecting it in mission with others. Or maybe that has been minimal. Regardless, when this happens, there are conflicting claims to what happens next. Often the local church is split between groups who want to go and those who want to stay.

Also, different denominations have different underlying philosophies in the relationships between churches and each other. Some see them as largely independent, others as deeply dependent on the bishop/diocese/structure that oversees them. My particular denomination, the Presbyterian Church (USA), takes a third view: all churches are interdependent, each of us expressions of mission for the larger church, each of us tied to each other as a fundamental understanding of what God is doing among us as a church.

These differences are internal religious matters, and are properly left to the churches themselves to work out. When a church feels that they should break away and connect to a different group, its up to that church and that denomination to figure out how to do it, noting that all sorts of legal issues pop up in the process. Those legal issues include a mess of relationships between church constitutions and corporate bylaws and the language on deeds. It keeps attorneys busy and employed (and very useful, actually).

So, here’s the rub: what is the state to do when this sort of thing happens and one party or another goes to civil court to try to sort it all out?

Well, there are a few different ways courts try to sort this out. Two different methods are prevalent depending on the state. One is the Hierarchical Deference rule, which provides a test to see if the denomination has a claim on the property in contrast to a local congregation that wants to leave. It assumes that the denomination in question has the right to determine these questions and looks for a clear ruling from the denomination to do so. The other method is a so-called “Neutral-Principles” approach, which tries to get the court out of interpreting church hierarchies.

This second approach was permitted in the states by the landmark 1979 US Supreme Court case Jones v. Wolf.[i] But that case included the following bases for courts to decide these things:

Indeed, “a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.” Maryland & Va. Churches, 396 U.S., at 368 (BRENNAN, J., concurring) (emphasis in original).

At least in general outline, we think the “neutral principles of law” approach is consistent with the foregoing constitutional principles. The neutral-principles approach was approved [443 U.S. 595, 603]   in Maryland & Va. Churches, supra, an appeal from a judgment of the Court of Appeals of Maryland settling a local church property dispute on the basis of the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property.(My emphasis)

The neutral principles approach, according to Jones v. Wolf, proposed to look just at the deeds, the corporate chartering documents, state statutes, and, importantly, provisions in the church’s constitution about property claims:

Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy.

In other words, the Supreme Court said a neutral principles approach could work for all forms of church structure, if those denominations that were interdependent or hierarchical in nature added trust language into their church constitutions.

This is precisely what my particular denomination did, shortly after this ruling, putting into our church constitution a trust provision explicitly laying out what had been our centuries-old practice. In theory, this would continue to protect those forms of church that sees the local church as a part of a larger structure (including Methodists, Lutherans, Episcopalians, Presbyterians, and many others) from individual communities who break away without negotiating with their denominations how to do it.

* * *

Flash forward to today, and these internal church matters continue. While the vast majority of churches are serving just fine in their denominational home, sometimes some are not. While individuals or groups could just go to another church home that suited them better, others choose to try to take their church out of one system and into another. And now 35 years after Jones v. Wolf, some churches in interdependent denominations like mine are trying to find ways to avoid the church structure they’ve been working under, and just take their property scot free and against their denomination’s theological design.

I want to highlight one particularly pernicious effort being waged by some who want to advance the neutral principles approach in states that don’t already have it.

Under the right framework, a neutral principles approach could work, assuming they follow the tests listed above. It would allow for independent congregationalist churches to split away fairly easily while making it more challenging for those in traditions where the larger church has claim to individual churches.

But if you take away the denominational constitution provision from the neutral principles approach, the result is you are deciding the matter for the local church, often ignoring decades and centuries of denominational involvement.

An example can be found in Kansas, where a Representative (also a deacon of a church seriously pondering a split from the Presbyterian Church (USA)) proposed the following change from a hierarchical deference approach to neutral principles:[ii]

A neutral principles of law approach under subsection (a) shall rely on objective, well established principles of trust and property law. Such an analysis may include examination of a deed, local church charter, state statute or corporate governance documents in a completely secular manner, as would be conducted for any other property dispute.

Did you notice how reference to a church denomination’s constitution has been removed from this approach. In fact, this law would exclude the use of church constitutions from this analysis, the very provision Jones v. Wolf imagined would be used to protect hierarchical approaches to church governance.

While proponents suggest that this is a more fair approach, it in fact mandates a particular form of church: where churches are independent of each other and denominations (regardless of their role in establishing and supporting those churches) have no claim on their churches unless they establish an explicit secular trust. That is impractical and impossible, certainly for churches that might now want to leave. It changes the rules for all sorts of denominations. And, more importantly it goes against the intent of Jones v. Wolf which sought flexibility for different forms of church structure while getting the state out of making sense of theological claims.

I hope the legislature keeps the Kansas law the same. The Hierarchical Deference test is working just fine. If it chooses to move to neutral principles, they should explicitly reference church constitutions, in line with Jones v. Wolf, as part of the decision making process for the court. Otherwise, the state is getting involved in internal church squabbles and deciding for the local church in each instance. And it shouldn’t do that.