Possession is nine tenths of the law: but who really owns a church's property in the wake of a religious split within a hierarchical church?

AuthorMcElroy, Meghaan Cecilia

TABLE OF CONTENTS INTRODUCTION I. THE EVOLUTION OF THE SUPREME COURT'S JURISPRUDENCE ON HOW TO RESOLVE CHURCH PROPERTY DISPUTES A. The Deference Approach: The Supreme Court's Initial Attempt at Solving Church Property Disputes 1. The Presbyterian Church and Its Doctrinal Division over Slavery 2. The Supreme Court's Categorization of Church Property Disputes 3. The Flaws in the Supreme Court's Uneasiness To Decide Church Property Disputes B. A New Outlook on Church Property Disputes: The Supreme Court's Neutral Principles Doctrine 1. Laying the Groundwork for the Neutral Principles Approach 2. Jones v. Wolf: Neutral Principles Guide the Way in a Church Doctrinal Divorce II. THE LAW OF THE CHURCH: THE CONSTITUTION AND CANONS OF THE EPISCOPAL CHURCH A. The Hierarchical Organization of the Episcopal Church B. Applicable Canons of the Episcopal Church to Church Property Disputes III. THE HISTORY AND CONSTITUTIONALITY OF VIRGINIA CODE SECTION 57-9 A. Religious Discord in Nineteenth Century Virginia: The Virginia Religious Freedom Act B. Virginia Code Section 57-9: Violation of the First Amendment or Neutral Principle of Law? IV. HOW TO DEFINE DIVISION: DOES WEBSTER'S DEFINITION APPLY TO VIRGINIA CODE SECTION 57-9? A. The Application of Virginia Code Section 57-9 to Hierarchical Church Property Disputes B. Division as Defined by the Warring Factions 1. Breakaway and the Formation of a New Polity: The Definition of the Virginia Episcopal Congregations 2. Formal Approval of the Breakaway: The Definition of the Episcopal Church C. The Definition Solution and the Application of Property Law 1. The Best Definition: A Middle Ground Between the Local Churches and the Episcopal Church 2. Property Law to the Rescue: Abandonment Ends the Church Dispute CONCLUSION INTRODUCTION

Courts across the country face a perplexing legal issue regarding the ownership of church property. In the wake of the ordination of an openly gay bishop in 2003, local congregations have broken away from the Protestant Episcopal Church in the United States of America, leading to contentious property disputes over both the real and personal property of the churches. (1) This continual religious saga (2) has lead many legal scholars and ordinary citizens alike to wonder who should be entitled to the property after the split. The problem that arises in adjudicating this legal issue is the sparse continuity in court decisions addressing property ownership in the wake of a religious "divorce." With limited guidelines articulated by the Supreme Court, (3) the states are free to craft their own arsenal for handling church property disputes. (4) As social issues (5) increasingly stimulate American religious debate, the need for courts to develop a bright-line rule for handling church divisions is ever present, considering the likelihood that these issues will continue to drive a wedge between congregations and higher ecclesiastical bodies. (6) Virginia provides a perfect starting point for crafting a bright-line rule that all states should eventually follow, considering the existence of a post-Civil War statute meant to handle such religious property disputes.

Beginning in December 2006, fifteen traditionalist Virginia Episcopal parishes voted to break away from the Episcopal Diocese of Virginia (the "Diocese") and the Episcopal Church of the United States (the "Episcopal Church"). (7) The decision to disaffiliate with the Diocese and Episcopal Church (8) stemmed from a disagreement over the Episcopal Church's position on homosexuality, representing what the parishes considered a deeper affront to the teachings of the Christian faith and Scripture. (9) The parishes voted to affiliate with the Convocation of Anglicans in North America ("CANA"), a branch of the Anglican Church of Nigeria. (10) The parishes also incorporated their own diocese, the Anglican District of Virginia ("ADV") on December 5, 2006. (11) As a result of the separation, the local parishes and the Episcopal Church, along with the Diocese, have both claimed ownership of the real and personal property presently occupied and held by the parishes' trustees. (12)

The courts left to resolve these disputes have a choice between two different Supreme Court frameworks: the deference approach and the neutral principles doctrine. (13) The deference approach requires courts to accept the decision regarding property ownership made by the hierarchical church's judicial bodies, (14) while the neutral principles approach allows courts to determine the question of property ownership so long as the decision is based on neutral principles of law. (15) Under the neutral principles of law doctrine, states are free to craft their own mechanism for handling religious property disputes so long as their courts refrain from deciding any doctrinal issues.

Virginia enacted a statute long before the existence of the current church property dispute within its borders and long before the establishment of the neutral principles of law doctrine in Jones. Virginia Code section 57-9 specifically addresses who retains legal title to church property when a division occurs within a hierarchical church. The statute grants congregations the right to determine, by majority vote, to which branch of the church the congregation wishes to belong if a division occurs within the church. (16) If the determination is approved by the court, it shall be conclusive as to the title to and control of any property held in trust for the congregation. (17) The key interpretive question of Virginia Code section 57-9 is how one defines a "division" within a church.

This Note argues that, in order to create uniformity within the Commonwealth of Virginia, (18) "division" as used in section 57-9 should mean a factional separation within the hierarchical church between the national church and an aggregate of congregations. A factional separation only occurs if an aggregate of congregations, determined on a macro-level, disaffiliates with the national church due to distinct views of church doctrine. The nature of the church doctrine has no relevance to the determination of division; the analysis should focus solely on whether the aggregate of congregations are separating from the national church because of the same doctrinal dispute. If no such division has occurred and a parish votes to disaffiliate from the church, then the parish abandons the property held by the parish's trustees. The hierarchical church to which the parish previously belonged would then become the rightful owner of the property by nature of their claim to the property and the invalid action of the local church in voting to disaffiliate.

In order to settle the present dispute among the eleven Virginia Episcopal parishes, as well as any future disputes among congregations and the hierarchical church to which they belonged, courts should adopt the bright-line rule proposed by this Note. Such an approach will be beneficial for the judicial system because it will enable courts to resolve church property disputes expeditiously by addressing the sole question of whether a division existed within the church. Churches within Virginia will benefit equally from a brightline rule because knowing how a court will resolve their property dispute may prevent congregations from taking certain separational actions in the first place. Likewise, a bright-line rule may persuade congregations to settle their disputes internally as opposed to seeking recourse in the judicial system.

Part I of this Note traces the development of the Supreme Court's jurisprudence on how courts should decide church property disputes and the implications of the Court's decisions on the ability of states to approach the property issue. Part II analyzes the Canons and Constitution of the Episcopal Church regarding church property disputes and how these religious laws should factor into courts' decisions as to the rightful owner of the contested church property. Part III addresses the constitutionality of Virginia Code section 57-9, specifically whether the existence and application of the statute violates the Establishment Clause or Free Exercise Clause of the First Amendment. Part IV explores the crucial question of how courts should define the term "division," as used in Virginia Code section 57-9; the answer to this question will center on how courts have defined "division" in other contexts, as well as how courts should interpret the statute from a policy perspective. Part IV discusses the property law theory of abandonment and its application to the present church property disputes. Finally, this Note considers the benefits of creating a bright-line rule for resolving church property disputes considering the likelihood that such disputes will continue to erupt across the country as religious beliefs held by local parishes and the hierarchical church diverge.

  1. THE EVOLUTION OF THE SUPREME COURT'S JURISPRUDENCE ON HOW TO RESOLVE CHURCH PROPERTY DISPUTES

    The Supreme Court has articulated two divergent methods for resolving church property disputes: the deference approach and the neutral principles doctrine. (19) The Supreme Court first articulated the deference approach as the proper means for handling intrachurch property disputes, (20) and not until a century later did the Court accept a different manner for resolving property disputes in the wake of a church divorce. (21) The deference approach requires courts to accept the resolution reached by judicial bodies of the hierarchical church on intra-church disputes. (22) The neutral principles doctrine, on the other hand, focuses on courts resolving church property disputes by interpreting church documents relating to the contested property without deciding any questions of religious doctrine. (23) Both approaches articulated by the Supreme Court reveal an uneasiness by the judicial system to intervene in disputes involving issues of religious doctrine. (24)

    1. ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT