PCUSA groups attack proposed changes in church's property law By John H. Adams The Layman Online Wednesday, May 24, 2006 Two denominational advisory bodies have come out full bore against an overture to the 217th General Assembly calling for a constitutional amendment to revise the property chapter of the Book of Order. The overture, which was submitted by the Presbytery of Stockton, and the comments will be considered by the General Assembly Committee on Church Polity. The proposed amendment would revise a number of sections of Chapter 8 of the Book of Order to give congregations absolute control over their property with the exception of financial assistance provided by presbyteries. In that case, the proposed amendment says, the presbyteries could attach a lien to the property for the benefit of the denomination. The proposed amendment would also allow a church, by the vote of 60 percent of its members at a congregational meeting, to leave the PCUSA with its property. Currently, Chapter 8 says all local church property – even that paid for fully by the congregations – is held in trust for the "use and benefit of the Presbyterian Church (USA)." There is no provision to allow congregations to vote to leave the PCUSA with their property. The denomination has aggressively defended Chapter 8 by filing civil suits against congregations that voted to leave the PCUSA with their property and urging that congregations approve new articles of incorporation to acknowledge the denomination's ultimate ownership of the property. With the concurrence of the Committee on the Office of the General Assembly, the Advisory Commission on the Constitution issued a comment strongly opposing the revisions to Chapter 8. It argued that the revisions would have the effect of changing the PCUSA from a connectional denomination to congregationalism. In its rationale, the Advisory Committee on the Constitution said: The PCUSA and its predecessor denominations had an "implied trust" requirement long before the former United Presbyterian Church (USA) in 1981 and the Presbyterian Church U.S. in 1982 amended their Books of Order to state explicitly that congregations hold their property in trust for the benefit of the denominations. The property chapters were added after "Both predecessor denominations engaged in long and careful studies of the history of these judicial decisions in the context of historic Presbyterian principles in adopting the antecedents." The argument did not say that Presbyterians in both denominations had voted down property trust clauses in previous years or that the changes in 1981 and 1982 were hurried attempts to avoid the repercussions of a 1979 Supreme Court ruling that recommended that church property disputes be settled according to "neutral principles of law." That landmark decision challenged hierarchical claims to church property. The current Chapter 8 "gives broad discretion to the presbytery in the resolution of property disputes. These provisions, which allow the presbytery to exercise its discretion in a property dispute in light of the mission of the Gospel within its bounds, provide a sound foundation for resolution of property disputes and should not be abandoned." In reality, though, the constitutional services branch of the Office of the General Assembly doesn't encourage discretion so broad that it would allow a congregation to leave the PCUSA with its property unless it pays an exit fee. Instead, it provides money and legal help to presbyteries to initiate civil court suits against those congregations and urges – through the presbyteries – that local churches rewrite their articles of incorporation and other documents to state their adherence to the trust clause provisions. The following are the texts of the overture and the responses of the Advisory Committee on the Constitution and the Committee on the Office of the General Assembly: The Stockton overture The Presbytery of Stockton overtures the 217th General Assembly (2006) to direct the Stated Clerk to send the following proposed amendments to the presbyteries for their affirmative or negative votes: 1. Shall G-8.0201 be amended to read as follows: [Text to be deleted is shown with a strike-through; text to be added or inserted is shown as italic.] "All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.) no matter how title is held or by whom, is the sole property of that church, except that the amount of any financial assistance provided by the Presbyterian Church (U.S.A.) to that church to purchase, improve, or repair that property, is a lien on that property for the benefit of the Presbyterian Church (U.S.A.)." 2. Shall G-8.0300 and 8.0301 be deleted and "G-8.0400-.0701" be re-numbered as "G-8.0300-.0601: "G-8.0300 3. Property Used Contrary to Constitution "G-8.0301 Property Used Contrary to Constitution "Whenever property of, or held for, a particular church of the Presbyterian Church (U.S.A.) ceases to be used by that church as a particular church of the Presbyterian Church (U.S.A.) in accordance with this Constitution, such property shall be held, used, applied, transferred, or sold as provided by the presbytery." 3. Shall current G-8.0401 be amended to read as follows: [Text to be deleted is shown with a strike-through; text to be added or inserted is shown as italic.] "Whenever a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause and no longer exists as a church body, such property as it may have shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the Presbyterian Church (U.S.A.)." 4. Shall current G-8.0501 be amended to read as follows: [Text to be deleted is shown with a strike-through; text to be added or inserted is shown as italic.] "So long as a particular church is a member of the Presbyterian Church (U.S.A.), it shall not sell, mortgage, or otherwise encumber any of its real property and it shall not acquire real property subject to an encumbrance or condition without the written permission of the presbytery transmitted through the session of the particular church." 5. Shall current G-8.0502 be amended to read as follows: [Text to be deleted is shown with a strike-through; text to be added or inserted is shown as italic.] "So long as a particular church is a member of the Presbyterian Church (U.S.A.), it shall not lease its real property used for purposes of worship, or lease for more than five years any of its other real property, without the written permission of the presbytery transmitted through the session of the particular church." 6. Shall current G-8.0601 be amended to read as follows: [Text to be deleted is shown with a strike-through; text to be added or inserted is shown as italic.] "The relationship to the Presbyterian Church (U.S.A.) of a particular church can be severed only by either constitutional action on the part of the presbytery. (G-11.0103i), or by the vote of sixty (60) percent of the active membership of that particular church. If there is a schism within the membership of a particular church and the presbytery is unable to effect a reconciliation or a division into separate churches within the Presbyterian Church (U.S.A.), the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church within the Presbyterian Church (U.S.A.). This determination does not depend upon which faction received the majority vote within the particular church at the time of the schism the sixty (60) percent vote of the active membership within that particular church shall determine what shall be done with that church's property not withstanding the provisions of G-11.O1O3i or any other provision in the Book of Order." Comment from the Advisory Committee on the Constitution The Advisory Committee on the Constitution advises the 217th General Assembly (2006) to disapprove Item 05-07. Rationale This overture would change the specific character of Chapter VIII of the Form of Government, and represents a Congregationalist rather than Presbyterian understanding of the nature of church property. The current provision of Chapter VIII of the Form of Government codifies a Presbyterian understanding of property ownership that prior to its adoption was settled in Presbyterian polity. Section G-8.0201 was only added as a constitutional provision to avoid confusion in the civil courts as to the status of church property. The origins of Chapter VIII of the Form of Government are found in both the Presbyterian Church in the United States (1981, pp. 224-25, 229-43) and the United Presbyterian Church in the U.S.A. (1980, pp. 99-105). Both denominations shared a long and common history of understanding a congregation's property to be held in trust for the whole church. This history is reflected in a number of judicial decisions, all the way to the United States Supreme Court, most notable in an 1872 case, Watson v. Jones, 80 U.S. (13 Wall) 679 (1872). However, for the protection of Presbyterian principles it became clear that it was necessary for the denominations to put in place a provision in its constitutional documents that which was implied in the earlier precedents, that is, that property is indeed held in trust for the benefit of the whole church. Both predecessor denominations engaged in long and careful studies of the history of these judicial decisions in the context of historic Presbyterian principles in adopting the antecedents to G-8.0201. This necessity for adoption of G-8.0201 arose from court decisions that changed the permissible role of courts in determining disputes as to church property. Until a few years before the adoption of G-8.0201, courts determining property disputes sought to determine from the doctrinal documents of a denomination whether the property of local congregations was held in trust for the larger church (this was referred to as the "implied trust" analysis). However, in 1979, the United States Supreme Court found that this type of inquiry into the doctrine of a denomination was an improper intrusion into the First Amendment right to freedom of religion. Accordingly, the courts were required to determine property disputes without seeking to interpret a denomination's doctrine (the so-called neutral principles of law analysis). For Presbyterians, this change in the legal framework the civil courts applied suggested specific reference in property matters in a denomination's constitutional documents was prudent. Section G-8.0201 provides that explicit understanding of the long held Presbyterian understanding. As such, it was not a change in our Presbyterian polity, but rather an attempt to protect the denomination's polity against changes in the permissible framework of legal analysis applied by the civil courts. Chapter VIII gives broad discretion to the presbytery in the resolution of property disputes. These provisions, which allow the presbytery to exercise its discretion in a property dispute in light of the mission of the Gospel within its bounds, provide a sound foundation for resolution of property disputes and should not be abandoned. This necessity for adoption of G-8.0201 arose from court decisions that changed the permissible role of courts in determining disputes as to church property. Until a few years before the adoption of G-8.0201, courts determining property disputes sought to determine from the doctrinal documents of a denomination whether the property of local congregations was held in trust for the larger church (this was referred to as the "implied trust" analysis). However, in 1979, the United States Supreme Court found that this type of inquiry into the doctrine of a denomination was an improper intrusion into the First Amendment right to freedom of religion. Accordingly, the courts were required to determine property disputes without seeking to interpret a denomination's doctrine (the so-called neutral principles of law analysis). For Presbyterians, this change in the legal framework the civil courts applied suggested specific reference in property matters in a denomination's constitutional documents was prudent. Section G-8.0201 provides that explicit understanding of the long held Presbyterian understanding. As such, it was not a change in our Presbyterian polity, but rather an attempt to protect the denomination's polity against changes in the permissible framework of legal analysis applied by the civil courts. Chapter VIII gives broad discretion to the presbytery in the resolution of property disputes. These provisions, which allow the presbytery to exercise its discretion in a property dispute in light of the mission of the Gospel within its bounds, provide a sound foundation for resolution of property disputes and should not be abandoned. Comment from the Committee on the Office of the General Assembly Item 05-07 seeks to change the Book or Order regarding ownership of church property. The Committee on the Office of the General Assembly (COGA) supports the comment and advice of the Advisory Committee on the Constitution to disapprove this overture. The COGA is a committee of fifteen persons, elected by the General Assembly from across the church, made up of elders and ministers who supervise the work of the Office of the General Assembly.

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