Constitution Check: Should the Supreme Court get involved in church property disputes?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, examines the Supreme Court’s limited but important history in deciding on how churches can handle internal property disputes.

800px-Saint_Ann's_Church_insideTHE STATEMENT AT ISSUE:

“This issue is exceedingly important. It affects properties collectively worth billions of dollars – more than $100 million [in this case alone] – and the properties’ dollar value is far eclipsed by their religious significance. Indeed, to those parishioners exiled from their houses of worship, little could matter more. Their constitutional right to freely exercise religion – and to affiliate with a hierarchical church – has been infringed in the most fundamental ways….This issue is important, and, in a time of increasing denominational strife, it is not going away. The Supreme Court should step in.”

– Excerpt from a filing in the Supreme Court, asking the Justices to clarify how courts are to decide who owns church property when a local congregation splits off from a parent religious denomination. Lower courts are deeply split over how to interpret Supreme Court precedents going back to the 19th Century. On Monday, the Justices refused to hear the new appeal, giving no reasons.


An American tradition that actually predates the Constitution – the need for the government to remain neutral on matters of religious faith and doctrine – is enshrined in the famous Virginia Statute on Religious Freedom, drafted by Thomas Jefferson in 1777, a decade before the Philadelphia Convention.   Its sentiments are now echoed in the First Amendment’s ban on laws that would officially embrace a particular religion or that would deny free religious worship and expression.

In recent years, the tradition regularly has been tested in the courts, as conflicts have broken out within religious dominations over defining the true faith, and lawsuits have followed. Controversy has broken out initially over doctrine, often between conservative and liberal factions, but soon turns to splits within a denomination and rival claims to own the property of the church, especially local buildings used for worship. Because the courts as part of the government are barred from deciding faith questions, these lawsuits are supposed to focus only on civil law.

Keeping those two separate, though, has not been an easy task.   The governing arrangements of religious denominations often reflect matters of faith or doctrine, and those may conflict with principles of property law.

For a good many years, the courts followed the lead of the Supreme Court in an 1872 case, dealing with a split between pro-slavery and anti-slavery members of a Presbyterian Church in Louisville, Ky.   In that case, Watson v. Jones, the court spelled out specific limits on civil courts’ power when dealing with property disputes between what are called “hierarchical churches” – those in which leadership and structure work from the top down.   The Justices adopted what has since been called the “deference” approach, requiring courts in property disputes to defer to the internal governing structures. (The approach differed for locally governed congregations.)

That approach lasted until 1979, when a deeply divided Supreme Court decided the case of Jones v. Wolf, dealing with a split within the Presbyterian denomination in a local church in Macon, Ga.   For churches organized as this denomination was, the court majority declared, civil courts could either continue to use the deference approach, or they could apply “neutral principles” taken from civil property law.   A judge would look at such regular property documents as deeds and trusts, but also could examine church documents so long as those were analyzed in neutral – that is, secular — terms.

That alternative option was controversial at the time, and has remained mired in dispute ever since. Five years ago, a widely respected scholar of church-state law, University of Virginia professor Douglas Laycock, found in a survey that the “neutral principles” approach had actually developed a bias in favor of local congregations, with significant and continuing disruption of the governing processes of hierarchical churches.

This controversy became a central feature of the deep doctrinal splits that began developing in the Episcopal Church in the U.S. in the 1960s and 1970s, and those splits have continued right to the present. Breakaway congregations grew upset with a number of faith-based matters – admission of women to ecclesiastical positions, a perception that some bishops held heretical views, and, most importantly, the ordination of a gay man as a bishop.   A strong movement developed to leave the Episcopal denomination, and join the more conservative Anglican Episcopal Church.

The biggest event in this schism occurred in 2008, when the leadership of the entire Fort Worth, Texas, diocese led a break with the parent church, and took with them out of that denomination the property of 47 parish churches in 24 counties – property worth more than $100 million overall.   The parent church fought back, but ultimately lost in the Texas Supreme Court. From now on, and in this case, that state court ruled, church property disputes were to be decided by the “neutral principles” approach, no longer deferring to church structure arrangements. Examining the trust document under which the parent church had claimed ownership of the local property, the state court said that did not square with state civil law.

With support from a wide array of mainstream religious organizations and advocacy group, the Episcopal Church took the case to the Supreme Court, arguing that the time had come for the court to abandon the “neutral principles” approach and return to the deference approach. The parent church, it contended, had done everything it could to establish the parent’s dominion over property, and yet that was not enough.

The breakaway congregations in Fort Worth and their bishop urged the Supreme Court to stay out of the case, noting that the Justices had passed up other appeals on the issue, and commenting that the dispute in Texas has not yet become final.

When the Supreme Court declined to hear the case, it provided no explanation. It may have been that the Justices did not think the case was finished in lower courts. And it may be that the court simply had no appetite for reopening a generations-old controversy that would probably wind up dividing the Justices as deeply as it does the feuding denominations, and leave nobody satisfied.