Daily Development for Thursday, January 15
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

RELIGIOUS PROPERTY; OWNERSHIP OF LOCAL CHURCHES: California Supreme Court, adopting “neutral principles” approach and rejecting “principle of government” approach, finds that local Episcopal Church deeded to the local congregation indeed belongs to the larger church after the local congregation separates from the larger church.

In re Episcopal Church Cases, 2009 Westlaw 18700 (1/5/09)

As has been in the new lately, the local church, St. James in Newport Beach, rejected affiliation with the National Episcopal Church when the national church ordained an openly gay man as a minister in 2003 in New Hampshire. 

St. James became a parish of the Los Angeles Episcopal Diocese in about 1947 and in 1950 the Diocesan Bishop transferred title to the real estate on which the church building stands to the parish.

The relationship of the parish to the broader church was meticulously documented through the years.  The members’ original application “promised and declared that said Parish shall be forever held under, and confirm to be bound by, the Ecclesiastical authority of the Bishop . . . the Constitution and Canons of the [Episcopal church] and the Constitution and Canons of the Diocese of Los Angeles.  The Articles of Incorporation of the parish continued the same theme. 

The Constitution and Canons of the general convention of the Church provided, at the time of the transfer of the property (1) no Church . . . shall be consecrated until the Bishop shall have been sufficiently satisfied that the building and the ground . . . are3 secured for ownership and use by a Parish . . . affiliated with this Church and subject to its Constitution and Canons.  Other sections limited the disposition or encumbrance of such properties without the consent of the Bishop and declared that no Church should be removed, taken down, or otherwise disposed of for any worldly or common use without the previous consent of the Standing Committee of the Diocese.”

The most direct and significant part of the Constitution and Canons, however was not adopted until 1971, twenty years after the transfer of the church property to the St. James Parish.  Following a U.S. Supreme Court decision, Jones v. Wolfe, 443 U.S. 595 (1971), the greater church added a fourth provision dealing with church property, stating that “Any dedicated and consecrated Church . . . shall be subject to the trust declared with respect to real and personal property held by any Parish . . . [as stated elsewhere in the document.]”

The Parish relied on the deed.  The greater Church relied on the reference to the Constitution and Canons, binding the Parish.  There was no question in this case that the trust could be dissolved by the beneficiary. 

The court acknowledged that the Establishment Clause was in play here.  The court could not impose the religious values of the greater church on the local parish.  In fact the local parish made that argument when it declared the case a SLAPP suit, brought for the purpose of depriving it of its protected right of religious freedom.  The trial court, in fact, agreed, and dismissed the suit.  The California Court of Appeals reversed.  It concluded that the traditional California approach to these issues was the “principle of government,” which held that in a hierarchical religious organization, the court will make no attempt to resolve religious differences, but simply defer to the decision of the “highest court” of such organization.  This was one of two approaches sanctioned by the Supreme Court, be apparently had long been the approach followed in California.  Under this approach, the question was simple - how did the broader Episcopal Church interpret its Constitution and Canons and their effect on the local parish?  Easy call.

The California Supreme Court, however (with one dissenter) decided that California should move to the second Constitutionally permitted approach to resolution of these disputes - the “neutral principles of law” approach.  Under this approach, to the extent that the court could interpret the operative statements of relationships among disputing parties in a “neutral” fashion, without regard to any interpretation of faith or doctrine, it was free to do so.  The U.S. Supreme Court had approved this principle unequivocally in the 1971 Jones decision, supra, and, as indicated, this is apparently what led the Episcopal Church to make very clear neutral tracks in the sand indicating how parish property was held and controlled.

The court carefully noted that if the “neutral principles of law” approach dragged it into a dispute as to the meaning of a religious term or concept, then it would be compelled to defer to the “highest court” in a hierarchical organization.  The court in fact held that provision 4, above, added in 1971, was part of the Constitution and Canons to which the parish and its operative documents had already committed themselves.  In any event, the court held, that the provision merely made express what had already been implicit with respect to the use of parish property consecrated as a church. 

Justice Kennard filed a dissenting and concurring opinion in which he argued that the “neutral principles of law” approach should not be used, but then concluded that under that approach, the parish would lose anyway, so it is difficult to see what the Justice’s dissent really is.

Comment 1: One supposes that a loose affiliations of local congregations could create non-hierarchical rules that would give each congregation complete control over its property, as well as its doctrine.  But it does appear that most of the traditional churches have hierarchical formats and, under one test or another, local congregations will be hard pressed to turn their religious disputes with their mother churches into property claims. 

Comment 2: Of course, the court’s view that “neutral principles” determine the case obviates the claim that the lawsuit is about gay ordination.  It’s just a dirt fight.  No SLAPP claim is available. Frankly, one wonders how the original trial judge could conclude otherwise. 

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