A virtual firestorm erupted in the Presbyblogs yesterday with the revelation from the Presbyterian Layman of documents purportedly written by denominational lawyers as a guide to those representing "presbyteries and true churches" in property disputes and a guide for presbyteries for processes to use in dealing with churches wanting to withdraw from the PCUSA. The Layman says these documents were mailed to its office anonymously without comment. This added fuel to the fire started by the release of Advisory Opinion #19.
Among those offering extensive analysis and commentary on these documents (and check out the discussions in the comments as well) are Classical Presbyterian, Will Spotts, and Jim Berkley.
There's been a lot of dismay expressed over the pugnacious, litigious attitude behind the recommendations and advice in these documents. What should the approach to churches seeking dismissal from the PCUSA be?
First of all, we must acknowledge that under the Book of Order church property is held in trust for the denomination and that no church has the right to withdraw from the denomination and keep its property. Although there have been challenges to denominational trust clauses recently, mostly by ECUSA churches, at this time courts are still upholding those clauses. A church could withdraw and affiliate with another reformed group and the presbytery could choose to negotiate a sale of the property to the church rather than asserting control and seeking to install a new pastor. There are so many factors that could arise in these circumstances, that it is impossible to formulate a hard-and-fast position for presbyteries as these documents seek to do.
Secondly, we must acknowledge that the denomination will not be held together by litigation. The language used in these documents contributes to a adversarial atmosphere that will undermine the efforts of presbyteries that seek to work towards reconciliation and continued relationship with disaffected congregations. Calling one part of a congregation the "true church" and another part schismatics, or threatening presbyteries with legal action from synods breeds distrust between all parties.
Presbyteries should seek to work with congregations in serious disagreement with the denomination on a pastoral level first. It is important to show trust in those with whom we are in a connectional relationship and to show that presbytery is also trust-worthy. Jumping immediately to the formation of administrative commissions that are empowered to seize control of the church and displace the elected leaders of the congregation is a sure-fire way to antagonize the members, create a litigious nightmare, and set up an ongoing atmosphere of distrust between the churches, presbytery and synod that will doubtless contribute to more attempted withdrawals from the denomination.
24 comments:
I don't really have a problem with denominational officials stating what current church law says, even if it comes across as adversarial and confrontational. Could say it is part of their job description.
On the other hand, it is interesting to see what parts of current church law they decide to strictly enforce and what parts they don't.
Thanks for your thoughts on this. I've been impressed with and thankful for Will Spotts' desire to converse about these things with me over at my humble place.
You're right: the denomination will not be held together with litigation. It will take renewed committment by all sides to the common endeavor we have. I remain prayerful that this can be undertaken, even by people who might disagree greatly on a host of matters.
I wish the PUP folk had been charged to include ecclesiology in their study, because I think a lot of this has to do with competing views of what the church is and ought to be about.
Anyway, as always, very good to read your thoughts on the matter.
I will say that I have not read all of the documents thoroughly. However, as a lawyer, it is my opinion that Classical Presbyterian has significantly misinterpreted this memorandum.
It is the purpose of a legal memorandum to advise the client what the law is, where there are areas of disagreement and what options are available to the client. That is not the same as advocating the use of any of the available options.
Could the use of descriptive terminology have been more sensitive? Absolutely.
Would it be a disaster for the denomination (and the public view of the American Church) if some of these options were utilized as described? No question.
My professional experience, however, is that this kind of a memorandum tends to illicit the contrary response from the client than Classical Presbyterian is suggesting. My experience is that when cold, hard, realities are spelled out this bluntly; clients tend to repel away from them. This kind of memorandum serves the purpose of confronting the client with the reality of smashing relationships and the ugliness of legal conflict. At that point most clients (other than family law clients) start looking for a better way.
Elaine
Norman, OK
dang, this sounds WAY too familiar to an Episcopalian. Why don't y'all figure it out and let us know how to handle? 'ppreciate ya.
Interesting points about the lawyers' memos, Elaine. Hope you're right.
I also hope you're right Elaine.
Thanks, Kairos -- I also have appreciated your willingness to converse.
QG - good point about litigation (and thanks for the link). As is pretty obvious, I don't like these documents at all. But I'm hopeful we can all back up and calmly assess the situation. I honestly don't think any of us will be served by the potentially very nasty fights coming our way.
Mary Beth, the PCUSA is just continuing her steady march to conform herself to this world. If I were you I wouldn't get my hopes up that we will show y'all much, though. The PCUSA is essentially following the same path as the ECUSA (or is is TEC now?) only about 5 or so years behind.
QG--Thanks for linking people to my posting, too. You add a lot to the conversation.
I think you neglected one possibility for a presbytery, however. The presbytery COULD decide to transfer the property to the church rather than sell it or appropriate it.
I think it boils down to simple fairness: Who has contributed what to the value and vitality of the entity and assets of the congregation? Maybe the congregation owes just about EVERYTHING to the work and generosity of the presbytery. In a case like that, selling the property to the outgoing body of believers might be a fair solution. But maybe the presbytery has contributed next to nothing to the congregation: it's the church's money that bought the property and built the buildings; it's their sacrifices and generosity and good work that have made the church what it is. Maybe presbytery has even been a hindrance to the vitality of the congregation. Maybe the presbytery owes the church MUCH more than the church owes the presbytery. What right, in that kind of a situation, does the presbytery have to demand a ransom in order for the refugees to leave?
This IS much like family law, and, sadly, it can get rather nasty.
In my presbytery, a church decided to leave the denomination, and all parties did it with grace and dignity. The presbytery negotiated a price for the property which was about 75% below fair market value, and the deal was done. Presbytery then held a service of transfer from one denomination to the other.
It can be done well. The congregation began this process by talking to the presbytery honestly about the change, not by marching in and deminding the assets, or by assembling a team of lawyers prepared to bring current case law to light.
By the way, mine is one of those presbyteries that some would call "apostate" in its progessiveness. ;-)
Cheese, thanks so much for that example from your presbytery.
That is truly the way it OUGHT to be done and I hope and pray will be done in the future, whether it is a progressive presbytery dismissing a conservative congregation, or a conservative presbytery dismissing a progressive one.
QG,
What about churches whose buildings (at least some of them) were built by non-presbytery money? My mom's church is building from a loan given by a Korean church that shares the Presbyterian facilities. My own church is building a $22 million project with money directly from the congregation and an outside bank loan. I'd wager that many other churches have the same issues.
Thanks for your views on this. It helps me as a layperson to understand and be prepared.
Presbyterian Gal--
Although your church and your mom's church may be funding the buildings themselves through loans from banks or other parties, like the Korean church (interesting situation!), I bet the presbytery was involved in purchasing the land where the buildings are being constructed. Usually the presbytery puts up some money to purchase the land and/or is a guarantor to the bank for the loan for purchasing the land. As a guarantor, the presbytery gave the loan of its credit to the church to help it qualify for the bank loan. If so, then the presbytery has some legal claim to the real estate, outside of any BOO requirements.
Even if the presbytery did not purchase the land, or guarantee the note for its purchase, the BOO provides that churches hold their property "in trust" for the PCUSA. You've probably seen a lot of debate on the blogs and some of the Presbyterian websites about this provision, which is fairly recent in the history of the denomination because many believe this is unfair and over-reaching, especially to those churches who joined the denomination before that provision went into effect. However, until it is changed by the denomination, or the state courts change their past precedent of honoring that provision, that is the controlling factor.
Maybe it would help to compare this to a contract for a franchise. Any congregation affiliating with the PCUSA today must be aware that when they join the denomination, they also are agreeing to the provisions of the "trust clause." The PCUSA gives the local church the right to identify itself as a PCUSA church in its community and to be a part of the connectional system of the denomination with all the advantages (and disadvantages) that provides. The church receives a "brand name" that communicates to its community that this is a church that follows reform theology, is part of a larger well-known denomination, requires educated clergy, ordains women etc. and in exchange agrees that it holds its property (real estate, buildings, cash, securities, etc) in trust for the denomination. If the church wants to leave the "franchise" then the property reverts to the presbytery. Presbytery can negotiate a "buy-out" of its interest if the church is leaving to join another reformed denomination, but it isn't legally required to do so.
QG
Thanks for the explanation. It makes much more sense to me now.
It still seems to me, though, that the current controversies are on the part of the overall ruling body and not the individual congregations. ie: a presbytery provably supporting an action of a particular church that in the action demonstrates a departure from reform theology. Couldn't a case be made for breech of implied contract, or is there such a thing in states other than California? Especially if the presbytery in question imposes requirements on all their congregations to follow suit, so to speak, in the non-reformed matters. I'm not a lawyer, but I've worked in a lot of legal situations (including entertainment which is full of implied contract). And if breech could be proven, would that support a congregation's position in at least some degree, of propriety on their church property?
Forgive me if I'm clumsy with my questions. I really am deeply frustrated over any congregation being hampered in a sincere and prayerful walk home. I know we're supposed to be willing to abandon everything to follow Jesus. It sure gets complicated when the road forks, yes?
Very astute, Presbyterian Gal.
The cases I have read from California (which involved Episcopal church withdrawals) did argue an implied breach of contract as a way of seeking to invalidate the "trust" clause. The argument is that if the denomination changes its theology and beliefs sufficiently after a church has joined, then it cannot enforce the "property trust" clause. The results in California are mixed and have not been finally adjudicated by the state's highest courts.
My brother, who is the attorney for the Diocese of West Texas and follows these cases closely, tells me that this argument has been tried in some other states but so far has been rejected. He thinks that might be in the process of changing--but it hasn't changed yet.
If you noticed the comment above from Cheesehead, you will see that some presbyteries have chosen to seek minimal compensation and bless the departing churches as they leave to join another reform denomination where they believe they will fit in better. The relationship of the church to the presbytery and the general attitude of the presbytery is probably just as important as the letter of the law in framing the context of the situation.
"The relationship of the church to the presbytery and the general attitude of the presbytery is probably just as important as the letter of the law in framing the context of the situation."
Unless of course the synod intervenes to prohibit any amicable solution per the recent "random brainwaves of the stated clerk".
Where does the synod get the power to intervene as per Will Spotts' comment? We are so accustomed as Americans to expect each larger body to have more power (city, county, state, fed.), that I think we forget that in PCUSA the real power is in the hands of the Presbytery. The Synod can secream. The Stated Clerk can scream. I just don't see what good it will do them.
Elaine
Norman, OK
Good point, Elaine.
Doesn't the Synod have to have an appeal of a disciplinary case from a presbytery before it in order to have the authority to act?
Which brings up another issue. It's time to get rid of Synods. They are an outdated, unnecessary organizational layer these days.
The relationship of the church to the presbytery and the general attitude of the presbytery is probably just as important as the letter of the law in framing the context of the situation.
I have seen it both ways -- the late 1970s in Denver where locks were changed and armed guards were placed at the doors (over the mission giving issue) and one a little closer to home where the Presbytery sold the property for $0.01 and wished the congregation well (over theological issues related to the entire denomination).
Armed guards? This is totally inconsistent with the Christian life.
Lawsuits? What did Paul say about that?
Thanks for your perspective, and good luck with the path toward "Mom of Presbytery."
We need to find ways to work together, instead of trying to outmaneuver each other.
QG:
Tom Oden makes the point in his book "Turning Around the Mainline" a point similar to yours in your post five posts or so back.
Namely, that the property trust clauses in denominational constitutions are there to protect doctrine and the faith. But they're meant to be the last resort. If say, my session and I decide that sacrificing goats to the god Pan will be a part of regular Sunday worship, then presbytery is responsible for making us comply with the BOO. If all else fails (i.e. the regular disciplinary process), then the biggest hammer in the toolbox is for the presbytery to take over and lock us out and we have to take our goat sacrifices elsewhere.
But as Oden points out, there have yet to be cases where the accountablity runs the other way. What's a doctrinally orthodox church to do when the higher governing bodies start doing unorthodox things? Oden thinks there is a strong argument to be made along the lines of your implied brach of contract comment. If the trust clauses are there to protect the proper use of property according to denomination standards (BOO and BOC) then the actual owner of the property in question should be the group that hews most closely to that line.
That said, it'll be an interesting thing to watch as these cases crawl through the denomination and then civil courts.
On synod intervention - according to the Stated Clerk of the GA's opinion,
" III. If a presbytery fails to carry out these constitutional responsibilities, the synod may be required to intervene.
A. It may undertake review of the presbytery’s processes and decisions. (G-9.0408)
B. If the synod finds that the presbytery has not been faithful to its Presbyterian mission, (G-9.0409) the synod may direct the presbytery to appropriate action. (G-9.0410)
C. If a presbytery is unable or unwilling to carry out these constitutional responsibilities, the synod may assume jurisdicition over the presbytery’s G-11.0103i, G-8.0201 & G-8.0601 powers. (G-12.0102m,n)"
Whether they have the power or not I do not know. But this AO threatens that the synod can at its own iniative assume original jurisdiction if, for example, a presbytery is too gracious and Christian in its repose in seeking an equitable solution.
Will,
I agree, there's no question that this new AO is very worrisome on a number of levels-- especially in the litigious and pugnacious attitude that underlies it.
In response to QG's question (Doesn't the Synod have to have an appeal of a disciplinary case from a presbytery before it in order to have the authority to act?):
The synod has the power to conduct administrative review of the presbyteries within its jurisdiction. General Administrative Review is described in G-9.0407, and Special Administrative Review is described in G-9.0408.
Unlike a remedial case brought against a presbytery to be heard and decided by the synod's PJC, under Special Administrative Review the synod itself (or an administrative commission of the synod with the proper delegated powers), on its own initiative and without regard to the time limits for filing remedial cases, would need to find that an irregularity or delinquency had occurred, and it could then take steps it deems necessary to fix the problem.
An official statement by the presbytery might be sufficient to support a finding of an irregularity or a delinquency.
Although in general Special Administrative Review is discretionary for the higher governing body, the Annotated Book of Order cites the 2001 Londonderry case to mandate a response to lower governing body statements threatening contumacy.
Thanks, Stewart, for your explanation. That is very helpful. The BOO is confusing, even for attorneys!
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