On the Supreme Court's calendar for its conference this Thursday are cert petitions in two linked cases, Gauss v. Protestant Episcopal Church in the United States and Timberridge Presbyterian Church v. Presbytery of Greater Atlanta. Links to the petitions, briefs in opposition, amicus briefs, and lower court opinions may be found here. The problem arises from the Court's muddled resolution of the role civil courts may play in determining disputes concerning ownership of church property. In Watson v. Jones, 80 US (13 Wall.) 679 (1871), the Court ruled that civil courts must first determine the type of church involved -- basically congregational (under control of the immediate congregation) or hierarchical (individual churches controlled by an umbrella church). With respect to the latter type, civil courts were to defer to the internal rules of the umbrella church. A bit over a century later, the Court, in Jones v. Wolf, 443 US 595 (1979), ruled that civil courts must eschew any inquiry into "ecclesiastical polity or doctrine," but must be "completely secular" and rely "exclusively on objective, well-established concepts of trust and property law." But Jones did not overrule Watson, and the result is that five state supreme courts and one federal circuit hold that internal church rules are irrelevant if they conflict with secular trust and property law, but four state supreme courts hold that internal church rules govern even if they do not comport with secular trust or property law.
This problem arises in the case of hierarchical churches, such as the Episcopal Church and the Presbyterian Church. The problem doesn't arise in the case of the Roman Catholic Church because deeds to parish property are almost universally in the name of the relevant Catholic Bishop. That's not so with Episcopalians and Presbyterians, where deeds to local church property are often in the name of the local church. Enter the so-called "Dennis Canon," in the case of the Episcopal Church. The umbrella Episcopal Church amended its constitution (the Canons) to provide that all local church property is held in trust for the national church. Of course, it is an axiomatic principle of trust law that an express trust can be created only by the settlor, not by unilateral action of the beneficiary. Yet, the Dennis Canon purports to create a trust by the action of the beneficiary alone. This gambit has been approved by those state courts that read Jones to mean that civil courts may defer to internal church rules, even when they are at odds with secular principles of trust law. On the other side are those courts that hold that secular principles of trust law control when internal church rules violate those principles.
Given the turmoil in the Episcopal Church there is certain to be even more of these disputes. Guidance is needed. I'm not agnostic on this issue -- I think that secular principles of trust and property law ought to control, regardless of what the internal church rules may be. There are at least two reasons for this: 1) Civil courts are obliged to apply secular law to resolve ecclesiastical property disputes; they can't do this if they look to church rules that the church itself proclaims; 2) Permitting churches to declare themselves to be the beneficiaries, in trust, of property owned by others, allows churches to exercise power that no secular entity could ever exercise. In short, by a modest extension of the rationale of Larkin v. Grendel's Den, 459 US 116 (1982), governmental blessing of this extraordinary power amounts to a forbidden establishment of religion.
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