WASHINGTON – The Presbyterian Lay Committee has filed an amicus curiae brief before the United States Supreme Court, arguing on behalf of neutral principles of law in the adjudication of church property litigation.
 
Filed on July 27, the brief supports a Petition for Writ of Certiorari by St. James Parish in Newport Beach following a California Supreme Court ruling that awarded the congregation’s property to its former denomination, The Episcopal Church (USA).
 
To prepare the brief, the Lay Committee teamed up with Kenneth W. Starr, dean of the Pepperdine University School of Law, Associate Dean Robert F. Cochran Jr., director of the Herb and Elinor Nootbaar Institute of Law, Religion and Ethics and Louis D. Brandeis, professor of law at the university, and further utilized Attorney Forrest Norman of Gallagher Sharp in Cleveland, Ohio and a member of the Lay Committee Board of Directors, as legal counsel for the filing.

First Amendment cited

The Lay Committee brief argues that in awarding St. James Parish property to the Episcopal Church (USA), the California Supreme Court violated the First Amendment’s Establishment and Free Exercise clauses by exempting a hierarchical church government from fundamental property laws that all other persons and organizations are required to honor.
 
The brief recognized that in Jones v. Wolf (1979), the court moved partially, but not completely toward the remedy that it seeks. Prior to 1979, the court followed a precedent established in Watson v. Jones (1891) that recognized “hierarchical deference” in church property cases. In the Jones decision, the court acknowledged problems inherent in the Watson rule. It “criticized but allowed” that principle to continue, while simultaneously opening the door for courts to employ a neutral principles of law approach.
 
As a result of this both/and opinion, “confusion abounds, and litigation has exploded,” said the brief. “The time is ripe for this court to reexamine the constitutionally sensitive principles that govern church property disputes.”
 
The neutral principles approach that the court introduced but did not mandate in 1979 calls on the courts to adjudicate church property disputes using the same criteria that they use in all other property disputes: no special treatment based on religion.

Changed religious landscape

The Lay Committee noted that the American people are “overwhelmingly religious” and “astonishingly divided” in their religious preferences. “The nation boasts approximately twelve major religious groups as well as literally hundreds of independent sects and small denominations,” it said.
 
This diversity presents a very different landscape from the nation’s relatively monolithic religious culture in 1871, said the Lay Committee. In 1871, “most church structures fitted neatly into two categories: hierarchical or congregational,” but that “bipolar classification no longer captures the reality of America’s vibrantly diverse religious groups.”
 
Numerous examples were cited in the Lay Committee’s brief to show the wide spectrum of governmental arrangements that exists today among and within religious organizations. “Cases such as these, where the locus of control is ambiguous, have beguiled courts into adjudicating questions of religious polity, in violation of bedrock First Amendment principles.”

Rule by law, not theology

Forms of religious organization often relate to questions of doctrine, said the brief. Thus in siding with that portion of a denominational group that claims hierarchical authority, many courts are wandering into a theological thicket. “Judges are profoundly ill-equipped institutionally to make the ultimate theological judgment whether a church is hierarchical.”
 
Citing language from the Jones decision, the Lay Committee noted that the Court affirmed the value of the neutral principles approach, saying that it “‘obviates entirely the need for an analysis or examination of ecclesiastical polity or doctrine in settling church property disputes’ (Jones, 443 U.S. at 605).”
 
The Lay Committee continued: “In Jones, this court permitted (but did not require) courts to apply the neutral-principles test and expressly noted the numerous advantages of that inquiry. But that was a generation ago. The intervening history over the past thirty years has demonstrated not only the practical advantages of neutral principles, but has illuminated as well the constitutional mischief inherent in the hierarchical-deference methodology. A church property rule designed for nineteenth-century, more homogeneous America does not address the constitutional realities posed by religiously diverse twenty-first century America.” 

A matter of justice

The Lay Committee’s brief declared that the hierarchical deference principle is manifestly unjust, and it cited instances in which members of a local congregation purchased and maintained property entirely with their contributions, only to lose that property to a denomination when by unanimous vote they chose to separate from it.
 
“It is difficult in the extreme to identify any parallel in American law,” said the committee. “This starkly unequal treatment spawns profound constitutional tensions by granting preferential treatment – in civil courts – to some citizens over others.”
 
“In happy contrast to the hierarchical-deference approach,” said the Lay Committee, “neutral-principles analysis applies the same standards to all religious and non-religious associations … Our submission in this respect is straightforward: church hierarchies should not be exempt from the normal rules governing the creation and recordation of property interests.”
 
The Lay Committee brief took particular umbrage at California Corporations Code Section 9142, saying that this code “inappropriately advantages hierarchical religions over congregational faith communities.” “It does this,” argued the Lay Committee, “by granting only hierarchical institutions the unilateral power to assert trusts over parish properties without the consent of the titleholder.”
 
There is nothing in the law that prevents a local church from titling its property or placing it in trust for its denomination, said the Lay Committee, but that is a decision that the local church alone is entitled to make. “The denomination cannot assume this right without a proper legal instrument executed by the grantor – in this case, the local congregation.”

Serving the churches

Commenting on the Lay Committee’s entrance into an Episcopal Church (USA) property case, Chairman Stephen Brown said the issues involved are far ranging and of particular interest to Presbyterian congregations. “Three denominations, the Episcopal Church (USA), the United Methodist Church (USA) and the Presbyterian Church (USA) contain trust language in their constitutional documents that encroach on the property rights of their local churches,” he said. “We believe that by entering this case, the Lay Committee is serving many congregations whose ministries are being damaged by litigious encounters with denominational bureaucracies. We pray that a favorable decision by the U.S. Supreme Court will free God’s people to proclaim the Gospel in whatever venue they believe He is leading them to pursue.”
 
Brown underscores Norman’s point that from a legal perspective, the Lay Committee’s involvement makes sense because, as Norman puts it, “the precedential value of a case involving a church property dispute extends beyond the denomination of the litigants – future courts will apply the legal principles without regard to subtle differences in polity or church structure. Presbyterians churches may find themselves being judged by Episcopal case law, and to avoid this confusion, we Presbyterians need to ensure that courts understand the difference, and apply the law fairly to each different denomination.”

Lay Committee counsel

Norman has served as legal counsel for numerous congregations that have chosen to leave the Presbyterian Church (USA) with their property. One of his clients, Hudson Presbyterian Church in Hudson, Ohio, successfully defended itself against a lawsuit filed by Eastminster Presbytery. The congregation won again when Eastminster appealed the case, thereby setting a precedent in the state of Ohio for congregations seeking to defend their property interests against denominational claims.
 
Starr is a former judge and solicitor general who was appointed to the Office of the Independent Counsel to investigate the suicide death of the deputy White House counsel Vince Foster and the Whitewater land transactions by U.S. President Bill Clinton. He later submitted to Congress the Starr Report that opened the door for impeachment proceedings against Clinton. Starr is widely regarded as a leading scholar in legal religious issues.