In the latest turn in a long-running litigation, a Virginia trial court ruled last night that breakaway parishes must vacate church property, including the 
landmark Falls Church in suburban Washington, DC (left), and return possession to the Episcopal Diocese of Virginia. In 2005, several Virginia parishes voted to leave the Diocese over a dispute, among other things, about the ordination of openly gay clergy. These parishes affiliated themselves with a new denomination, the Anglican Church of North America, but continued to occupy their existing church buildings, to which they claimed a right under Virginia law. When the Diocese sued, state courts initially sided with the breakaway parishes. The Virginia Supreme Court ruled, however, that those courts had relied on an unconstitutional statute and remanded the case. Yesterday’s decision, on remand, favors the Diocese. The breakaway parishes say that they are reviewing the latest decision. In recent months, courts in New York and Georgia also have ruled against breakaway congregations in church property disputes involving the Catholic, Episcopal and Presbyterian Churches.
The Holy Sepulcher as a Collective Action Problem
Inspired by last month’s announcement of an agreement to repair the Church of 
the Nativity in Bethlehem, over the break I read an interesting recent book on the church’s sister shrine, the Church of the Holy Sepulcher in Jerusalem, which many Christians believe to be the site of Jesus’ crucifixion and resurrection. Like the church in Bethlehem, the Holy Sepulcher is shared among monks from three different Christian communities, Armenian Apostolic, Greek Orthodox, and Latin (Roman Catholic), according to something called the “Status Quo,” a kind of customary law dating to Ottoman times, which governs possession and use of the church in minute detail.
It is not an entirely harmonious relationship. Monks from the rival communities not infrequently come to blows in disputes about use of altars. Only a couple of weeks ago in Bethlehem, monks got into a fistfight about who had authority to clean parts of the Church of the Nativity in preparation for Christmas celebrations. You might think these fights are driven by theological differences, but those are somewhat secondary. Under the Status Quo, cleaning an area is an assertion of possession. So communities bitterly resent unauthorized attempts to tidy up. Similarly, because paying for repairs likewise indicates possession, the communities often block each other’s attempts to repair common areas of the church, like the roof. This can lead to delays in necessary maintenance that place the church in danger of collapse.
From a Christian or even conservationist perspective, all this is very disedifying. From the perspective of a secular lawyer, however, the Status Quo is fascinating. In Saving the Holy Sepulchre: How Rival Christians Came Together to Rescue Their Holiest Shrine (Oxford 2008), Hebrew University Professor Raymond Cohen describes the decades-long process by which Armenian, Greek, and Latin monks negotiated an agreement to make essential repairs to the Holy Sepulcher, which had reached a terrible state by the middle of the last century. Working within the Status Quo, the three communities, each of which distrusted the other, somehow worked out a modus vivendi that allowed them to save the shrine. (One important prod: the communities’ fear that if they didn’t reach agreement on saving the church among themselves, secular authorities would intervene and upset the Status Quo in a way each would find unpleasant). The process led, if not to affection, then to a kind of mutual regard among the monks – at least some of them. Cohen’s story is one of the triumph of rationality over a massive collective action problem: inspiring, no matter what one’s religious commitments.
Same Name, Different Case
American law and religion scholars know the case of St. Nicholas Cathedral, a 
Supreme Court decision from the 1950s, about which Rick Garnett has written recently. Briefly, the case involved a dispute over a Russian Orthodox cathedral in New York between two parish councils, one loyal to the Moscow Patriarchate and the other loyal to the Russian Orthodox Church Outside Russia (ROCOR), a group that broke away from the Communist-dominated Patriarchate in the twentieth century. It turns out that a similar dispute has been making its way through the French courts. Since the fall of Communism, the Moscow Patriarchate and ROCOR have reestablished communion, and the Patriarchate has been reasserting its right to church properties around the world, including St. Nicholas Cathedral in Nice (above), an impressive, onion-domed structure, reputedly the largest Orthodox cathedral in Western Europe. The local parish council objected to returning St. Nicholas to Moscow and a six-year legal battle ensued. The battle ended last week, when the local council sadly turned over the keys to the Patriarch’s representative. The story is here, from a local paper (in French).
NY High Court Rules against Parishioners in Catholic Church Property Dispute
Another state high-court ruling highlighting the importance of the neutral principles of law 
doctrine in church property disputes. This week, the New York Court of Appeals dismissed a lawsuit that parishioners of Our Lady of Vilnius Roman Catholic Church in downtown New York City (left) had brought against the church’s board of trustees, seeking to overturn a decision to dissolve the parish and demolish the church building. In 2007, the Catholic Archdiocese of New York, citing the parish’s declining membership and the decayed state of the church building, directed that the parish be dissolved; shortly thereafter, the church’s board of trustees voted to demolish the church building. A group of parishioners then sued, arguing that as members of the parish they, not the board of trustees, had the ultimate say. Applying the neutral principles of law doctrine, the Court of Appeals examined the relevant legal instruments and rejected the parishioners’ argument. The church held the deed, the court explained, and the church’s bylaws gave the board of trustees, not the parishioners, control of the property, to be exercised in conformity with archdiocesan directives. Our Lady of Vilnius Church, about 100 years old, was the traditional Lithuanian Catholic parish in New York City. The case is Blaudziunas v. Egan (N.Y. 2011).
Bethlehem Church to Get New Roof
As Christmas approaches, word this week that the Church of the Nativity in 
Bethlehem (left), the traditional site of Jesus’ birth, will get a new roof. The roof, which is centuries old, has needed replacing for some time, but the three Christian communions that share the church – Armenian Apostolic, Greek Orthodox, and Roman Catholic – have been unable to agree on a plan. The story behind their disagreement, and the reason why they have had such a hard time resolving it, is a fascinating one.
The three communions share the church under the “Status Quo,” a set of rules and customs that date back centuries to Ottoman times, and which also govern other Christian sites like the Church of the Holy Sepulcher in Jerusalem. The provisions are incredibly detailed. For example, the Status Quo specifies the times of day when communions may have access to specific altars, the permissible length of religious services, the proper placement of chalices, the ownership of lamps and icons, and, crucially, the right to repair sections of the church. According to custom, to repair part of the church, or even to pay for repairs, is an assertion of ownership. As a result, each communion carefully guards against the possibility that another will undertake repairs in common areas, like the roof, and thereby gain rights by a sort of adverse possession.
All this seems a bit arcane today to outsiders, but the Status Quo has occupied a
major place in diplomatic history and international law. In the 19th Century, France, seeking to increase its influence in the Middle East, agitated for Catholic control of the church and other Christian shrines in the Holy Land; Russia, seeking to resist French influence, agitated on behalf of the Orthodox. The Status Quo was in fact an attempt by the Ottomans to freeze everybody in place as of 1852 and avoid further conflict. When someone removed a silver cross the French had donated to the church (above), the theft sparked an international incident that led ultimately to the Crimean War. In the treaty that ended the war in 1856, the belligerents endorsed the Status Quo, and it has been honored by the rulers of Bethlehem – the Ottomans, the British, the Jordanians, the Israelis, and now the Palestinians – ever since.
The present agreement to replace the roof has been brokered by the Palestinian Authority, which has somehow persuaded everybody to cooperate. Really, there isn’t much choice, as experts say the roof could collapse at any time. Work is to begin next year.
Georgia Supreme Court Decides Two Church Property Disputes
The Georgia Supreme Court last week decided two important church property cases. The rulings, handed down the same day, favor national bodies in disputes with local congregations and add nuance to the “neutral principles of law” doctrine, associated with the US Supreme Court’s holding in Jones v. Wolf, which allows judges to resolve intra-church disputes by interpreting relevant legal documents in terms of neutral civil law principles. The first case, Rector, Wardens, and Vestrymen of Christ Church, Savannah v. Bishop of the Episcopal Diocese of Georgia, applied the neutral principles doctrine to rule that an Episcopal parish in Savannah held property in trust for the parent body, the Protestant Episcopal Church in the USA. As a consequence of this ruling, the parish, which has seceded from the national body and affiliated itself with an African diocese, must vacate the property and turn it over to the national church. In the second case, Presbytery of Greater Atlanta v. Timberridge Presbyterian Church, the court similarly concluded, again under the neutral principles doctrine, that a local Presbyterian congregation held its property in trust for the national body, the Presbyterian Church-USA.
Two points about these cases. First, they demonstrate that “hierarchical churches” – and both the Episcopal and Presbyterian Churches qualify as such for purposes of American law – have learned, presumably in response to earlier court decisions, to amend and in some cases draw up church rules in a way that insures that local congregations hold property only in trust for the national body. Second, one typically thinks of the neutral principles doctrine in the context of “external” documents like deeds, contracts, and trust instruments. In these cases, however, the court applied the doctrine to “internal” church rules. There’s a danger in applying the doctrine in that context. Canon law may operate in ways that lawyers trained in the civil law system do not fully appreciate; from the perspective of the church, “neutral” civil law principles may not seem neutral at all. In these two cases, the court believed, that was not a problem, as the relevant canons did not implicate religious principles. In future cases, that may not be so clear.