I’ve been writing about theological and historical perspectives on religious identity, continuity, and division.  See here and here and here.  But what about the law? The problem of competing claims to what I’ve called the “religious DNA” of a faith tradition typically comes up during battles over church property arising out of divisions and schisms of one sort or another, within congregations or between congregations and larger church bodies.  (I’m not going to talk here about the “personnel” issues that have given risen to the “ministerial exception” doctrine

These sorts of conflicts arise frequently in a country such as ours where religious life and ecclesiastical identities have often been in flux, and have always raised fascinating and difficult questions.  An important recent example has been the effort to adjudicate the property of several Episcopal parish churches in Virginia whose congregations voted to break away from the Diocese of Virginia, and affiliate with the new “Anglican Church in North America” in reaction to the national Episcopal Church’s policies regarding homosexuality.  Nobody, of course, disputes the right of a group of persons to worship as they please and affiliate with whatever religious group they please.  The real question, put bluntly, is who gets to keep the church building, the bank accounts, the chalices and crosses and books and all the other material stuff of religious life.  This past April, the Virginia Supreme Court ruled largely in favor of the Diocese and the national Episcopal Church and against the breakaway congregations.

The issues raised by these and similar cases are much too involved and messy for one blog post.  But here are a few thoughts, connecting the legal questions to the other perspectives I’ve written about in this little series of posts.

In this and other contexts, I’m a strong supporter of religious institutional autonomy, treating religious communities as organic normative communities distinct from the “nomos” of the state.  But how to respect institutional autonomy is not always self-evident when various factions each claim to speak for the church or carry its “DNA.”

That said, lawyers comes to these sorts of issues with a perspective that borrows a bit from both the theologian and the historian.  On the one hand, they share with the theologian (at least sometimes) the need to decide one way or the other.  The historian can say “it’s complicated” and leave it at that.  The judge usually can’t.  On the other hand, the judge or lawyer shares with the historian, and as opposed to the theologian speaking in a religious voice, a goal of detached even-handedness and healthy skepticism.  That necessarily produces a third distinct perspective, with its own analytic tools and assumptions.  

Further complicating the matter is that legal disputes over church property or control and related matters can involve issues apart from religion.  The fight over our old friend Richard III is a nice example.  It turns out that for all the upset and blogging over whether the king’s remains should be re-interred in a Catholic or Anglican ceremony, the only actual litigation about the fate of his bones concerns whether they should go to Leicester Cathedral (as the government has planned) or to York Minster Cathedral (as the “Plantagenent Alliance,” a group of some distant relatives of the King, would prefer).  (For relevant stories, see herehere, and here.  For the latest court action, see here.)

But there’s still an important difference between recognizing that fights for ownership or control “can involve issues apart from religion” and trying to edit out religion entirely.  In recent years, since the United States Supreme Court decision in Jones v. Wolf, some state courts have become enamored of the so-called “neutral principles of law” approach, which tries to decide internal religious disputes by only looking to deeds, trust documents, by-laws, and other ostensibly “secular” legal documents.  That “neutral principles of law” approach differs from the more traditional “polity” approach, which seeks to defer to the decisions of the appropriate ecclesiastical authority in the church or (for “hierarchical” religious traditions) in the denomination.  The Court in Jones held that both the “polity” approach and the “neutral principles of law” approach are constitutional, as long as courts avoid deciding for themselves, as a substantive religious matter, which faction is being more faithful to the received doctrines of the church.  In the Virginia Supreme Court decision I mentioned, the court used the “neutral principles of law” approach to find a “constructive trust” in favor of the Diocese even if the local congregation held legal title.

As I argued in an article called “Omalous Autonomy,” however, the “neutral principles of law” approach is best understood, not as elevating “secular” law over religious norms in church property disputes and the like, but as giving religious communities a way to try to “translate religious principles into enforceable secular norms.”   It should not override genuine religious institutional autonomy, but rather try “to effectuate a religious community’s effort to specify the form that the community’s autonomy should take.”  The Virginia constructive trust is best understood as a roundabout way of recognizing the authority of the Bishop in a hierarchical church.  It’s only when courts treat “secular principles of law” as something entirely apart from the life and faith of the religious community that we run into real trouble.

And yet, and yet….    I’ve also argued, in an earlier essay called “The Varieties of Religious Autonomy” that we friends of religious institutional autonomy need to appreciate that the meaning of autonomy is, even in its own terms, “essentially contested.”  Religious communities are “sovereigns” over the normative world that they create.  But “sovereignty” has many dimensions.  I identity at least nine in the essay, and some are in deep tension with each other.  For example, sovereigns have the right to bind themselves to principles or procedures that cannot easily be changed or challenged even by momentary majorities.  (In the state context, we call that constitutionalism.)  But sovereigns also have the right to “to undergo change – even fundamental change.”  In fact, the power “to actualize fundamental changes marks an important difference between genuine sovereign dignity and a mere regime of rights.”  Put more specifically, it is within the “sovereign” authority of the Episcopal Church, or for that matter the Catholic Church, to be “hierarchical.”  But it is also within the “sovereign” authority of either church, or any of its parts, to rethink the matter, and certainly to rethink what it might mean to be “hierarchical,” as the dissenting congregations in Virginia did when they tried to attach themselves (and their material “stuff”) to a new form of Anglican governance.

I argue in the  “Varieties of Religious Autonomy” essay that the problem is, in a deep sense, intractable.  It has no solution.  Judges do have to decide specific disputes as best they can.  But the underlying questions remain in some sense open to debate.

So we’re back in a sense where I started this series of posts, in discussing good old Richard III, with uncertainty and a certain sense of paradox.  Which is as it should be.

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