O Tempora! The Law of Church Property (II)

In the first post in this new series, we reviewed the doctrine of an "implied trust" with regard to property donated and owned for religious purposes. The idea was that in cases where a donor did not expressly specify the terms and conditions upon which such property would be held, the courts would impress the property with an "implied trust" requiring that it be held so as to further the purposes of the religious organization to which it was donated --- with those purposes being determined as of the time the gift was made. When a split in the church occurred down the road, this doctrine led to courts deciding which of the two disagreeing factions remained closer to the original purposes laid down by its founders, or to its purposes as of the time the gift was made (if, by then, those differed from the organization's purposes when it was founded).

For example, if the "implied trust"doctrine were to be applied in the case of the current dispute between the Diocese of San Joaquin and the Episcopal Church, the court would have found in favor of the departing Diocese. Since it was established well before there was any ordination of women or homosexuals to holy orders in the Church, the "implied trust" on all its property would be enforced in favor of those who had remained truer to the principles that the Church followed when the Diocese was created, and the original donations to it had been made.

Making such a determination, however, would in almost every case inevitably cause the courts to run afoul of the barrier between church and State established by the First Amendment. And as we saw in the previous post, use of the "implied trust" doctrine to decide church property disputes was strongly disapproved of by the United States Supreme Court in 1872 (as a matter of "federal common law", and before it had been held directly that the First Amendment applied to the States). After the Court had ruled, in a series of cases beginning with Gitlow v. New York (1925), that the various restrictions in the First Amendment did apply to the States through the "due process" clause of the Fourteenth Amendment, it experienced no dissent in ruling (in 1969) the "implied trust" doctrine unconstitutional altogether, as unduly "entangling" the State, through its courts, in matters of religion. Today, the doctrine remains applicable only in English and commonwealth courts, where the authority of judges in cases of equity (involving trusts, or gifts made under a will) still derives in part from the royal prerogative.

The court's next foray into ecclesiastical property disputes occurred ten years after the Hull case (just linked), in Jones v. Wolf, 443 U.S. 595 (1979). I have already written extensively about this case, and so quote that earlier analysis here:

. . . in 1979, the Supreme Court decided Jones v. Wolf, a case from Georgia involving a congregation in the Presbyterian Church which split up over doctrinal differences (443 U.S. 595). The majority of the congregation voted to leave for another branch of the Church, and claimed the right to keep the church property; the minority, which wanted to stay, lost its suit for the return of what it claimed was its property. Applying what it called "neutral principles," the Georgia Supreme Court had examined the church's deed, its corporate charter, the governing documents of the Presbyterian Church, and State law concerning implied trusts, and found no facts or language to support a conclusion that the congregation's property was held in trust for the parent church. In doing so, it gave no deference to a decision by the supervising Presbytery (which exercised regional authority over the congregation) that the minority was the only true continuation of the original congregation, and that the majority no longer had authority to speak for the Presbyterian Church.

The United States Supreme Court, in a 5-4 decision, upheld Georgia's "neutral principles" approach to deciding the dispute, but remanded the case for the Georgia Supreme Court to articulate whether "majority rule" was a part of those principles. In doing so, it expressly held that Georgia was not required by the First Amendment to defer to the hierarchical ruling as to which group was the Church's true successor:

. . . We hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.

The dissent would require the States to abandon the neutral-principles method, and instead would insist as a matter of constitutional law that whenever a dispute arises over the [443 U.S. 605] ownership of church property, civil courts must defer to the "authoritative resolution of the dispute within the church itself." Post, at 614. It would require, first, that civil courts review ecclesiastical doctrine and polity to determine where the church has "placed ultimate authority over the use of the church property." Post, at 619. After answering this question, the courts would be required to "determine whether the dispute has been resolved within that structure of government and, if so, what decision has been made." Post, at 619 n. 6. They would then be required to enforce that decision. We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.

One would think that this language makes the holding of the case fairly clear. Yet here is a quotation taken from the supplemental brief for the Diocese of Virginia submitted for the May 28 hearing [in the Virginia litigation before Judge Randy Bellows]: "The Commonwealth [of Virginia] has no legitimate interest, compelling or otherwise, in the outcome of church property disputes. For the Commonwealth to assert an interest in promoting decision-making by congregational majorities---particularly within a hierarchical church, and contrary to that church's rules---itself violates the First Amendment." (Brief at p. 13, citing for a support a case that was decided before the decision in Jones v. Wolf.) Pardon, but as we have just seen, the Supreme Court in Jones v. Wolf sent the case back to Georgia for the courts to do just what the Diocese claims would violate the First Amendment---to decide a church property dispute on neutral principles, including majority rule, without having to defer to a preexisting adjudication in favor of the minority that had been made by the hierarchical church.

It is true that the Presbyterian Church in Jones, unlike TEC in this case, lacked any trust language in its governing document. Could that be a defining difference? Apparently TEC and the Diocese think it is. They derive this notion from the following oft-quoted passage from Jones v. Wolf:

The dissent also argues that a rule of compulsory deference is necessary in order to protect the free exercise rights "of [443 U.S. 606] those who have formed the association and submitted themselves to its authority." Post, at 618. This argument assumes that the neutral-principles method would somehow frustrate the free-exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral-principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. [Fn. omitted.]

What we have here, however, is not a holding by a majority of the Supreme Court, as in the quote in the previous paragraph, but an answer to an objection to that holding made by the dissent. And in answering that objection, Justice Blackmun stepped out of his normal role as Supreme Court Justice and engaged in the wholly unjudicial role of practicing law: he gave legal advice to those who would want to devise a way around the Court's holding. "Simply change your deeds or charter, or even put an express trust clause in your constitution, and then the courts will be required to honor your intent." Then, however, the justice part of Justice Blackmun takes over, and adds this caveat: "provided it [the trust] is embodied in some legally cognizable form." Which is to say: "I'm not going to draft the language for you. Just make sure it is in a form such that the courts can give legal effect to it."

This is a fairly crucial point, because I believe that the ultimate outcome of the Virginia lawsuits will in some way turn upon it, so let's be very clear here. Justice Blackmun and the majority in Jones v. Wolf first hold that (1) a State is free to decide church property disputes in accordance with "neutral principles" of law---meaning principles that are no different, as far as the law of property is concerned, from those used in all other cases of property disputes. Next, they hold that (2) as a part of those "neutral principles", they are free to incorporate a rule that in the absence of special provisions to the contrary, a vote by the majority controls what happens to the property---and they send the case back to Georgia to have just such a rule clearly articulated. Then, in answer to the dissent's objections that this result does not comport with the deference owed to hierarchical churches in matters of religious governance, Justice Blackmun steps out of his robes for a second to say: "Not at all---here's how you can be hierarchical and still keep your property, even under neutral principles and majority rule: just put an express trust in favor of the hierarchical church into the church deeds or charter, or into the hierarchy's constitution, and the courts will be bound to recognize what you have done---if you put it into legally cognizable form."

The words I italicized in that post have all but been swept under the table by subsequent court decisions, as we shall see. They were, however, the very thing that salvaged Justice Blackmun's legal advice --- that ensured it was just a truism in the form of free legal advice, and not an attempt to declare new law. Putting a trust "into legally cognizable form" means complying with the legal formalities required to create a trust: mainly, having an instrument in writing that is signed by the trustor, i.e., the person who owns the property being placed under a trust. Justice Blackmun was in effect saying: so long as you have the person who owns the property sign a trust document, then the national church constitution can also reflect that such a trust exists. That is the only meaning that can reasonably be ascribed to his "legal advice", because if you believe he was saying that a national church, as the beneficiary, could unilaterally declare it owned a trust interest in parish property, then you make nonsense of the words "in legally cognizable form." Before Justice Blackmun's dictum, there never was a trust in law created by a writing signed only by the proposed beneficiary of the trust. Such a trust document, in other words, would not be "legally cognizable", because in accordance with the Statute of Frauds (which is the common or statutory law adopted in all fifty States), only property owners --- and not beneficiaries --- can create, by signing an appropriate document, trusts in their property. So please keep that point in mind as we proceed --- it will turn out to be crucial in order to understand what has followed.

Now, before going any further, let me review and contrast the two approaches of the Court under Watson v. Jones (1872) and Jones v. Wolf (1979). Under the earlier ruling --- not binding on the States as a matter of federal constitutional law --- the court recommended resolving church property disputes in accordance with the following "decision tree":

1. If the property has been made subject to an express trust that is written in sufficiently definite terms, then enforce it as written.

2. If there is no sufficiently definite express trust, then:

a. If the property is held by a congregational church, with no higher governing authority above the parish itself, then the majority of its members decides where the property goes.

b. If the property is held by a parish that is part of a hierarchical church, and if the highest "judicatory" in that church to which the question has been taken has decided who gets the property, enforce the decision of that church judicatory.

The court in Watson did not say how a court was supposed to determine whether a church was "hierarchical" without getting involved in questions of religious polity and doctrine. As a matter of dictum again, Justice Miller simply opined that the Presbyterian, Methodist, and Episcopal Churches met the definition (80 U.S. 679, at 729):

Each of these large and influential bodies (to mention no others, let reference be had to the Protestant Episcopal, the Methodist Episcopal, and the Presbyterian churches), has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which as to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with.

Justice Miller was a Unitarian, and perhaps may be forgiven for thinking that the Episcopal Church had a "highest judicatory" with a "collection of [its] precedents", much like the decisions of the Supreme Court collected in numbered volumes. But in fact, the Episcopal Church (USA) has no such "highest judicatory", and hence there is no numbered set of volumes collecting any such body's precedents. ECUSA's General Convention has no adjudicatory powers under the Church's Constitution. It passes resolutions, admits dioceses, approves Church budgets and Church canons, and (over a four-year cycle) makes changes to the Book of Common Prayer and to the Constitution. Article IX of the latter document grants it authority to establish "an ultimate Court of Appeal", but one that is "solely for the review of the determination of any Court of Review on questions of Doctrine, Faith, or Worship." The determination of just who, or what body, in the polity of ECUSA would have the authority to "adjudicate" a dispute between the Church and one of its member dioceses is simply not possible by a straightforward reading of ECUSA's Constitution and Canons. Consequently, any such determination would in and of itself entangle a secular court in all kinds of questions of church law and structure, and in the interpretation of the Church's governing instruments.

It is thus fortunate that the holding in Watson v. Jones is now only of academic interest. It forms a part of that pre-Erie body of "federal common law" which the Supreme Court disavowed in Erie Railroad Co. v. Tompkins, and so is no longer binding on any court in the country. As the Supreme Court explained in footnote 4 of the Hull decision (quoting an earlier case):

"Watson v. Jones, although it contains a reference to the relations of church and state under our system of laws, was decided without depending upon prohibition of state interference with the free exercise of religion. It was decided in 1871 [sic], before judicial recognition of the coercive power of the Fourteenth Amendment to protect the limitations of the First Amendment against state action. It long antedated the 1938 decisions of Erie R. Co. v. Tompkins and Ruhlin v. New York Life Ins. Co., 304 U.S. 64 and 202, and, therefore, even though federal jurisdiction in the case depended solely on diversity, the holding was based on general law rather than Kentucky law." Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 115 -116 (1952).

However, Watson's influence has extended far beyond its reach. A number of State courts --- e.g., those in Florida, Kentucky, Michigan, Nevada, New Jersey, North Carolina, Texas and West Virginia --- still, according to their last decision on the matter, adhere to a "rule of deference" in cases they deem to involve hierarchical churches.

In contrast, the "neutral principles" approach approved in Jones v. Wolf has enjoyed widespread acceptance in the State courts, but only on the surface. All too often, a State's highest court says it is following "neutral principles", but then goes on to hold, for example, that ECUSA's Dennis Canon obviates any need under that approach for the Church to comply with the statute of frauds in establishing a trust interest in local church property without any written trust document signed by the parish in question. Frequently this result is reached by calling on a particular State statute for assistance in order to do an end run around such requirements, as in the two recent cases from New York and California, which I discussed here and here, respectively.

The lack of any clear definition of just what constitutes application of "neutral principles of law" undoubtedly stems from the fact that only two of the five justices who formed the majority in Jones v. Wolf actually endorsed the approach without reservation. The line of cases that led to the decision in Jones included the 1969 decision in Hull Presbyterian Church (1969), which unanimously held the "implied-trust-departure-from-doctrine" line of cases unconstitutional under the First Amendment, and also Serbian Eastern Orthodox Diocese of U.S. v. Milivojevich (1976). The latter case was a 7-2 decision which required a State court, in a suit brought by a defrocked bishop to have himself reinstated, to defer to the decision of the Serbian Orthodox Church upholding his deposition, even though it arguably had not followed its own procedures in doing so. Chief Justice Warren Burger concurred only in the judgment, and Justice White wrote a separate concurring opinion remarkable for its brevity, as follows:

Major predicates for the Court's opinion are that the Serbian Orthodox Church is a hierarchical church and the American-Canadian Diocese, involved here, is part of that Church. These basic issues are for the courts' ultimate decision, and the fact that church authorities may render their opinions on them does not foreclose the courts from coming to their independent judgment. I do not understand the Court's opinion to suggest otherwise and join the views expressed therein.

(Bold emphasis added.) Justice White thus spelled out his view that no church, however hierarchical, could simply by the act of proclaiming itself as such preclude secular courts from inquiring into the facts to determine whether that description was warranted. And Chief Justice Burger, by concurring only in the "judgment", sent a signal that he did not agree with everything written in the majority's opinion. Thus the real majority in the Serbian Orthodox case came down to just five justices (Brennan, Stewart, Marshall, Blackmun [who had replaced Douglas], and Powell).

Justices Rehnquist and Stevens dissented from the opinion on this ground:

Unless civil courts are to be wholly divested of authority to resolve conflicting claims to real property owned by a hierarchical church, and such claims are to be resolved by brute force, civil courts must of necessity make some factual inquiry even under the rules the Court purports to apply in this case. We are told that "a civil court must accept the ecclesiastical decisions of church tribunals as it finds them," ante, at 713. But even this rule requires that proof be made as to what these decisions are, and if proofs on that issue conflict the civil court will inevitably have to choose one over the other. In so choosing, if the choice is to be a rational one, reasons must be adduced as to why one proffered decision is to prevail over another. Such reasons will [426 U.S. 696, 727] obviously be based on the canon law by which the disputants have agreed to bind themselves, but they must also represent a preference for one view of that law over another.

In an eerie foreshadowing of what the Episcopal Church's House of Bishops did in attempting to depose Bishops Cox and Schofield, and again in its "deposition" of Bishop Robert Duncan, Justice Rehnquist wrote:

If civil courts, consistently with the First Amendment, may do that much, the question arises why they may not do what the Illinois courts did here regarding the defrockment of Bishop Dionisije, and conclude, on the basis of testimony from experts on the canon law at issue, that the decision of the religious tribunal involved was rendered in violation of its own stated rules of procedure. Suppose the Holy Assembly in this case had a membership of 100; its rules provided that a bishop could be defrocked by a majority vote of any session at which a quorum was present, and also provided that a quorum was not to be less than 40. Would a decision of the Holy Assembly attended by 30 members, 16 of whom voted to defrock Bishop Dionisije, be binding on civil courts in a dispute such as this? The hypothetical example is a clearer case than the one involved here, but the principle is the same. If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness.

Given these decisions that predated Jones v. Wolf, it is accordingly quite interesting to trace the alignment of the various justices who took part in them. In Hull, as mentioned, the Court seemingly came together in holding unanimously that the entanglement entailed by the implied-trust doctrine made it unconstitutional. This unanimity, as subsequent cases showed, was in reality made up of three different factions. There were three justices (Brennan, Douglas, and Marshall) in Hull Church who believed that the First Amendment forbade any determinations of religious doctrine or polity to be made by the courts, under any circumstances. Four justices, on the other hand (Burger, Stewart, White and Powell), agreed with the decision in Hull Church because it deferred to the church judicatory’s hierarchical determinations in the case, and so in that way avoided State entanglement in such matters. Finally, two Justices (Rehnquist and Stevens) agreed that courts must be neutral in reaching decisions about church property, but at the same time, they could not be blind to fraud, collusion or arbitrariness on the part of the hierarchy. These three different viewpoints have waxed and waned in their adherents as the Justices on the Court have changed with time.

For simplicity’s sake in what follows, I will refer to them as the “hands-off”, the “deferential”, and the “neutral principles” factions. Thus, Justices Brennan, Douglas (later replaced by Blackmun) and Marshall were of the school that demanded the courts keep their "hands off" with regard to any religious matters; Justices Burger, Stewart, White and Powell believed that courts should defer to any religious hierarchy that was involved, but could consider religious questions in the case of congregational and other non-hierarchical churches; while Justices Stevens and Rehnquist were of the view that everything --- even matters supposedly decided by a church hierarchy --- could be resolved through the application of "neutral principles of law". Under their view, no deference to any hierarchy was required by a "neutral principles" approach, and the courts could look behind the decisions of a church hierarchy to ensure that it was not being arbitrary, or oppressive, or, indeed, fraudulent. (Note that of the original factions, only Justice Stevens remains on the Court today.)

Now let us apply this factional analysis to the line of decisions following the Hull Presbyterian Church case. In the Serbian Orthodox case, for example, which (as explained above) was on the surface a 7-2 decision, the hands-off and deferential factions made up the majority, and the neutral principles faction (Stevens and Rehnquist) dissented. And in deciding Jones v. Wolf by a 5-4 majority, the dissenters (Powell, Burger, Stewart and White) comprised the deferential faction, while the hands-off and the neutral principles factions made up the majority. (The hands-off faction presumably was content with the outcome in Jones because the decision remanded the case to the Georgia Supreme Court so it could articulate a neutral basis under State law for identifying which group would keep the property --- a basis which did not "impair free-exercise rights or entangle the civil courts in matters of religious controversy." [443 U.S. at 608.] In other words, even under so-called "neutral principles", a "hands-off" approach to matters of religious doctrine was constitutionally required.)

The result is that no single faction has been able to dominate the Supreme Court's decision-making process in religious property disputes, ever since Jones v. Wolf. In subsequent posts on this topic, I shall trace the various factions as they evolved over the years with the subsequent changes in the Court's membership. An understanding of how these various factions have shifted over time plays an essential role in trying to evaluate the probability of the success before today's Court of the petition for review (certiorari) recently filed by St. James parish in Newport Beach, which asks the United States Supreme Court to hold that the California Supreme Court read a State statute in such a manner as to favor the "establishment" of a Church, and to inhibit the free exercise of their religion by local parishes, in violation of the First Amendment. First, however, we will be concerned to trace how the "neutral principles of law" doctrine has been adopted and transformed in recent years in the various State courts.