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

Thanks again to Mark and Marc for inviting me to guest blog this month.  I hope to use this opportunity to think about a range of questions, and also introduce a bit of my own work.

Back in August, I posted Part I of some mediations on religious division prompted by the minor kerfuffle over whether the newly-discovered remains of Richard III should be reinterred in a Catholic or an Anglican ceremony.  That post looked at the question from a bit of a theological lens. I want now to say a bit about the same problem from the perspectives of history.  (I’ll have one or two more parts to this discussion, so stay tuned.)

So let’s go back to our test case: Was Richard III a “Catholic” in the modern sense of the word that would exclude his membership in the “Church of England”?  For that matter, is the contemporary Church of England in some meaningful sense Catholic and not merely catholic?

Historians, I think, would resist these questions from the get-go. For one thing, they would want to be more contextual and specific.  There is no one answer to the religious identity of either Richard III or the contemporary Church of England.  Are we talking about formal belief structures, lived spiritual premises, personal devotion, liturgical practices, institutional relations, personal networks, political allegiances, or something else?  How does the civil war that Richard fought and lost figure into the equation, if at all?  What about the radically different technology of the time, with its implications for travel and communication?  What about the long, complex, and often violent history of relations between King and clergy that long predated Henry VIII’s split from Rome?  How would Richard III himself have understood the question?  Would he have understood it?

For that matter, historians might find the question too essentialist to begin with.  Yes, categories such as “Catholic” are real and important.  But time is change.  Richard III could not be “Catholic” in the sense we understand the term because nobody in his time – before the Reformation, the Enlightenment, England’s split from Rome, the rise of secularism, and for that matter the advent of modern forms of communication and transportation – was “Catholic” in the sense we understand the term.

All this interests me, not because I’m a historian, but because the question of historical consciousness (and its limits) strikes me as deeply important to all sorts of other puzzles and challenges I’ll be taking up this month.

For now, though, I will leave to the next post or two some thoughts about the possible further theological implications of what I’ve just said about history to the fate of poor Richard III and about how law (this is a law blog, after all) fits into all this, both specifically and more generally.

Virginia Trial Court Rules for Episcopal Diocese in Church Property Dispute

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.

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.

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:

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