Jones on Internal Church Schism, Property Law, and Constitutional Limitations

In September, Bernie D. Jones of Suffolk University Law School posted Litigating the Schism and Reforming the Canon: Orthodoxy, Property & the Modern Social Gospel of the Episcopal Church.  Her article explores the issues that arise when intra-church dogmatic schisms encounter property jurisprudence and the thorny predicament that American courts, in turn, face when asked to decide questions of doctrinal accuracy under a system in which the Establishment Clause forbids courts’ taking sides in internal theological debates.  Jones ultimately recommends the development of internal Episcopal processes for resolving such disputes.

This article relates to a host of present-day schisms in the Anglican Communion.  Doctrinal controversies over issues such as the ordination of female priests have resulted in more than twenty American Episcopal congregations’ opting to align themselves with conservative bishops in Nigeria, Uganda, and Rwanda; forming new domestic provinces in the United States; and English congregations’ leaving the Communion for Catholicism.

When controversies that are, at their root, theological lead to legal questions over the ownership of property, what, if anything, can an American court do without violating constitutional limitations?

See the abstract of Jones’ article after the jump:

The Episcopal Church (PECUSA) of the past forty years has become progressively more liberal, through support for civil rights—women’s ordination and most critically, the ordination of gays.  Its support for gay rights has led dissenters from liberalism to leave the Episcopal Church and seek alliances with conservative Anglicans overseas.  The parties have pursued litigation in civil courts as they seek to determine whether the pro-PECUSA loyalists will keep their churches or whether the anti-PECUSA dissenters will take all the church property when they leave.

This article examines the rise of Episcopal Church property litigation generated by theological conflicts between the church’s liberal and conservative wings.  These disputes are taking place as the result of historical changes.  These include a changing social gospel stemming from newer theological developments, one which has parallels in perspectives on constitutional adjudication-process theory, critical theory and a “living constitution.”  The Supreme Court’s modification of the constitutional standards courts might use in hearing the disputes then influenced adjustments to the PECUSA’s strategies for claiming ownership over local church property.  The article offers some unique perspectives not previously addressed in the scholarly literature: the significance of property theory grounding the disputes in competing notions of property and identity.  Finally, it exposes the limitations of using civil courts to resolve what should be resolved instead “in-house.”  The Episcopal Church canons might be reformed to create an ecclesiastical property court for resolving these disputes.  It offers a model for explaining how such a court might work.

For further discussion, Professor Calvin R. Massey wrote on related issues in 2009, particularly the jurisprudence following the Supreme Court’s decision in Jones v. Wolf443 U.S. 595 (1979), in which the Court employed “secular criteria” to decide religious property disputes.

—DRS, CLR Fellow

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