Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Mark Movsesian

What Does the Methodist Divide Mean?

Logo of the United Methodist Church

In the past couple of decades, American Protestant churches have suffered divisions on the question of homosexuality, and same-sex marriage in particular. Conservative congregations and dioceses have seceded from progressive national bodies, which has led, in some cases, to acrimonious, high-profile litigation over church finances and property. For lawyers and scholars who study law-and-religion, these disputes raise complicated and interesting legal questions. For the litigants, they are often emotional and painful conflicts–divorces, really–that leave everyone, winners and losers, worse off.

It seems that the United Methodist Church (UMC), America’s second-largest Protestant denomination, will not be able to avoid a split over LGBT issues. The Methodists may, however, avoid litigation. This week, a group of church leaders announced a plan for the dissolution of the worldwide church that would allow conservative congregations and conferences to leave the main body and join a new conservative denomination. Under the proposal, the UMC would give the new denomination $25 million and allow departing congregations to keep their property, and departing clergy, their pensions. The UMC seems likely to approve the plan at its next general conference in May.

Observers believe that most American Methodist congregations, which support same-sex marriage, will stick with the main body. But the UMC is a global entity, and, worldwide, the opposite may be the case. In a post at Juicy Ecumenism, Mark Tooley observes that the majority of Methodists today live in Africa, where the church is growing. African Methodists are quite conservative on LGBT and other issues. As a global matter, then, the large majority of Methodists may end up in the new, conservative denomination. If that is the case, Methodism will reflect the same dynamic that exists in Christianity worldwide: growth in conservative churches in the developing world, decline in progressive churches in the developed world. Another sign that Christianity’s center of gravity may be shifting from the global North to the global South.

Posted on by Mark Movsesian · 1 Comment

Can a Church Refuse to Sell Property Because of a Buyer’s Religion?

Here’s a bleg for you law and religion fans. Rod Dreher had an interesting post last week about the continuing division in the Episcopal Church over doctrinal issues. Several parishes, and even a few dioceses, if I’m not mistaken, have sought to leave the Episcopal Church because of the church’s liberal stand on issues like homosexuality. These parishes typically affiliate with Anglican bishops who remain committed to traditional doctrine.

Often, the departing congregations wish to maintain control of church property. Because of the way the relevant deeds and other legal documents are written, though, and because of the church autonomy principle, the congregations typically lose. Rod reports that the Episcopal Church has spent about $26 million litigating all the cases–an astounding figure, when you think about it.

All this is straightforward, legally speaking. But Rod’s post raises an issue I hadn’t thought about. When a departing parish in Binghamton, New York, sought to purchase its church building for $150,000, the Episcopal Church refused to sell. Apparently, the Church’s presiding bishop, Katharine Jefferts Schori, has adopted a policy of refusing to sell church property to any group that intends to affiliate with an Anglican bishop. The Episcopal Church has sold off property to Baptists, Methodists, Jews, and Muslims, but not Anglicans. In the Binghamton case, the Church eventually sold the property to a mosque which paid only $50,000 for it–one-third what the departing congregation had offered to pay.

So, here’s the question. Is it legal for a church to refuse to sell church property solely because of the buyer’s religion? You’d think there would be an easy answer, but I haven’t been able to find one. The federal civil rights laws prohibit religious discrimination in residential sales, but that wouldn’t apply to church buildings. Some state civil rights laws apply to commercial property, but there are exemptions for religious groups–and anyway, these cases don’t involve commercial property, either. In the federal employment anti-discrimination laws, a specific exception exists for religious bodies that discriminate on the basis of religion, and a couple of years ago, in the Hosanna-Tabor case, the Supreme Court held that the Constitution allows religious bodies to discriminate with respect to the employment of ministers. Would there be an analogous carve-out from non-discrimination principles for churches that do not wish to sell their sanctuaries to religious rivals? Any ideas?

Posted on by Perry Dane

Religious Division and Identity – Richard III and the Rest of Us – Part IV

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.

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Posted on by Mark Movsesian

Another Episcopal Church Property Dispute

This time it’s in South Carolina. Yesterday’s Wall Street Journal reports (subscription required)  on litigation between two rival factions in the Episcopal Diocese of South Carolina. One faction, representing the leadership and about two-thirds of the membership, broke away from the national Episcopal Church in November over the national body’s liberal approach to sexuality and other issues. The minority faction has remained loyal to the national body. Both factions assert ownership of the diocese’s property, including St. Michael’s Church in Charleston (above). In total, the diocese’s church buildings, grounds, and cemeteries are worth around $500 million.

Church property disputes have become increasingly common in America, as local congregations distance themselves from more liberal national church bodies. In the Episcopal Church alone, there have been a dozen such disputes in the past few decades. Human nature being what it is, each side in such a dispute thinks of itself as the true depository of the faith, with a moral, and legal, right to church property.

Civil courts have adopted a couple of different approaches to resolving such disputes, depending on how the relevant legal instruments are written: the “deference” approach, which defers to the decision of the highest authority within the church structure, and the “neutral principles of law” approach, which attempts to resolve disputes using standard property law principles. Both approaches try to promote church autonomy by insulating internal church government and theological questions from civil court review.

I’m not sure which approach the South Carolina courts take. At the moment, the fight is whether the litigation should be in South Carolina courts at all. The national body is seeking to remove the action to federal court, where, I assume, it thinks it will get a more receptive hearing. Whichever court hears the case, the track record of prior litigation suggests the national body should be confident of ultimate victory –though of course it depends on how the deeds, trust documents, and bylaws are written. For civil-law purposes, the Episcopal Church is a hierarchical church, and courts would normally defer to the highest authority within the church–I assume that’s the national body– on ownership of church property. That’s what happened in a recent case involving the Fall Church in Virginia. If the national body wants to recognize the smaller, loyal faction as the rightful owners of church property, the majority faction will likely have to find somewhere else to pray.

Posted on by Mark Movsesian · 1 Comment

Holy Sepulcher May Close Over Unpaid Water Bill

I’ve posted before about legal issues surrounding the Church of the Holy Sepulcher in Jerusalem, which most Christians hold to be the site of Jesus’ crucifixion, burial, and resurrection. The building  is shared among several Christian communions, all of whom accept, more or less, the so-called “Status Quo,” a compilation of rules and customs dating to Ottoman times that governs possession and use of the church. I hadn’t seen this anywhere in the scholarship, but it seems that the Status Quo may also cover payment of the church’s water bill.  According to the Greek Orthodox Patriarchate of Jerusalem, which has the greatest share of rights in the church and, apparently, responsibility for utilities, the Status Quo exempts the church from water bills. According to Hagihon, the Israeli utility that supplies the church with water, the Patriarchate is incorrect. Hagihon says Israeli law does not exempt religious organizations from water bills and that the church owes roughly $2 million. Last week, Hagihon obtained a court order freezing the Patriarchate’s bank account until payment is made. The Patriarchate says that, with its bank account frozen, it cannot fund day to day operations and that it will have to close the church.  Cooler heads undoubtedly will prevail, but for the moment there’s an impasse. I don’t know whether any of the other communions have offered to chip in, but the Greek Patriarchate may not want them to do so. Under the Status Quo, paying to maintain any part of the property can be an assertion of the right of possession — and the Patriarchate surely does not want to create a precedent suggesting that other communions have greater rights in the church.

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Leeson on The Law and Economics of Monastic Malediction

Peter T. Leeson (George Mason U.) has posted “God Damn”: The Law and Economics of Monastic Malediction. The abstract follows.

Today monks are known for turning the other cheek, honoring saints, and blessing humanity with brotherly love. But for centuries they were known equally for fulminating their foes, humiliating saints, and casting calamitous curses at persons who crossed them. Clerics called these curses “maledictions.” This article argues that medieval communities of monks and canons used maledictions to protect their property against predators where government and physical self-help were unavailable to them. To explain how they did this I develop a theory of cursing with rational agents. I show that curses capable of improving property protection when cursors and their targets are rational must satisfy three conditions. They must be grounded in targets’ existing beliefs, monopolized by cursors, and unfalsifiable. Malediction satisfied these conditions, making it an effective institutional substitute for conventional institutions of clerical property protection.

Posted on by Mark Movsesian

1st Circuit Applies Neutral Principles Approach in Church Copyright Dispute

Here’s an unusual church property dispute. The Holy Transfiguration Monastery in Brookline, Massachusetts brought a copyright infringement action against a former monk who had posted on his website English-language translations of ancient Christian texts the monastery had prepared. The former monk, now an archbishop in a different Christian communion, raised a number of copyright defenses, including fair use and non-originality. Last week, the First Circuit rejected all the archbishop’s defenses and ruled in favor of the monastery. The copyright issues are quite dense and apparently of real importance to copyright lawyers. For CLR Forum readers, though, the case is significant for its implications for church autonomy doctrine. The archbishop argued that the monastery’s statutes gave title to the texts to the monastery’s then-parent body, the Russian Orthodox Church Outside Russia, or ROCOR. (The monastery has since ended its affiliation with ROCOR). Using the neutral principles approach, the First Circuit rejected this argument. Applying “the Monastic Statutes’ plain terms,” and “without treading upon religious doctrine, church governance, and ecclesiastical laws,” title to the texts rested in the monastery, not ROCOR. The case is Society of the Holy Transfiguration Monastery, Inc. v. Gregory, 2012 WL 3125120 (1st Cir., Aug. 2, 2012).

Posted on by Mark Movsesian

More on the Holy Sepulcher

Back in January, I wrote about the Status Quo at the Church of the Holy Sepulcher in Jerusalem, the informal set of customs that governs the rights and responsibilities of the major Christian communities in the shrine. From a secular and theoretical perspective, the Status Quo is a fascinating answer to a collective action problem. But the church is a place of deep faith as well, a site that has drawn pilgrims for centuries. Yesterday, the Washington Post ran a piece that adds some human context to the subject, an essay on the nightly liturgies that take place in the church. It’s all very beautiful, but, in keeping with the Status Quo, there’s an undercurrent of watchfulness. “We keep almost awake at night here to see that things are done properly, on time, that no one will trespass the other’s right by doing things that he’s not supposed to do,” one priest explains.  “So we have to be careful and watch what we do or what they do.” Worth reading.

Posted on by Mark Movsesian

Cert Petitions Filed in Church Property Disputes

Howard Friedman at Religion Clause reports that coordinated cert petitions have been filed in three recent property disputes between national church bodies and local congregations.  Two decisions, discussed by CLR Forum here, arise from the Georgia Supreme Court; one comes from the Connecticut Supreme Court. All three cases question the application of the “neutral principles of law” doctrine, one of the two main approaches to church property disputes, which allows civil courts to resolve such disputes using regular civil law principles. The local congregations that lost these cases, two Episcopalian and one Presbyterian, are the petitioners; the national church bodies have not yet filed their responses.