Category Archives: Episcopal Church

Brief Updates On Church Property Cases In Texas, Pennsylvania and Kansas

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As I have often commented in this space, I really don’t want to go chasing church property cases in the civil courts as they can vary so widely by jurisdiction. I am going to take this opportunity to update one situation I have previously covered in detail and use it as an opportunity to consolidate reporting on a couple more and in the process demonstrate the variety that there is, the moving target that it can be and the legal technicalities involved.

Let me begin with the legal landscape in Texas which I have written on to some extent before. In particular, I covered a ruling by the Texas Supreme Court back in August 2013 that set forth neutral principles as the standard of decision for the state. However, that decision, at least in my reading, left a little opening for a hierarchical church to make a claim under the trust clause.

Well, two decisions in the last couple of weeks don’t see it that way and the local judicatories won summary judgements over higher governing bodies in the trial courts on pure property ownership and Texas trust law arguments.

The first was a summary judgement in the case of First Presbyterian Church of Houston v. Presbytery of New Covenant issued back on February 16. (Thanks to the presbytery for posting the decision.) Being a summary judgement there is not a lot of analysis by the court. The critical point to be made is:

… the Court grants the motion finding that there is no genuinely disputed issue of material fact, and that Plaintiff is entitled to judgment as a matter of law.

The Court further finds that there is no enforceable trust or property interest created by any version of the Presbyterian Church (USA) Book of Order or the Presbyterian Church of the United States Book of Church Order under the neutral principle factors set forth by the Texas Supreme Court in Masterson v Diocese of Nw Texas.

The presbytery’s Pending Litigation web page indicates they will pursue the appeal. The lawyer for the church has a press release on their victory and indicates he will continue to represent the church pro bono.

The second court decision issued on March 2nd similarly gives the Diocese of Fort Worth under Bishop Jack Leo Iker control of the property of the diocese in a partial summary judgement which did exempt one church property dispute from the order. This was a rehearing of the case where the original decision in favor of the Episcopal Diocese of Fort Worth was overturned by the Texas Supreme Court decision previously mentioned. The Episcopal Diocese has indicated it will appeal.

We will see how these trial court decisions hold up in the appeals process.

On the other end of the spectrum we had a final decision this past December in the case of Peters Creek Church in Venetia, Pennsylvania. This was a case between a majority of the church that voted to join the Evangelical Presbyterian Church and a minority that voted to stay with Washington Presbytery of the Presbyterian Church (USA). After seven years of legal wrangling and two previous decisions that favored the majority, a decision by the Commonwealth Court last April awarded the control of the property to the minority as the True Church. With the denial of review by the Pennsylvania Supreme Court in October it was sent back to the local court to issue the final decision ordering the change of ownership and a negotiated solution. The two groups have been sharing the property.

The Commonwealth Court decision is a long but at points an interesting read as it determines the outcome based strictly on neutral principles and does affirm that a denomination can not create a unilateral trust in Pennsylvania unlike court decisions in New York, Georgia and California. However, the court did find that in their Bylaws of June 3, 2001, Peters Creek United Presbyterian Church did create a trust with the PC(USA) when it included the language:

…“nothing in these bylaws shall prevail over the [PC(USA)] Constitution,” and that the bylaws “shall be considered to include the mandatory provisions and requirements on local churches set forth in the Book of Order of the Presbyterian Church (U.S.A.), whether or not incorporated by specific reference.”

Among other finding of error by the trial court the Commonwealth Court declared that a formal trust document need not be created for the trust to be in force and recognized. They further find that the vote of the congregation on November 4, 2007, to leave the PC(USA) was invalid.

Woven into the rational of the decision are the histories of the PC(USA) and UPCUSA governing documents as well as the history of Pennsylvania trust law. In the end they make the case that using only neutral principles and consideration of the timeline of the history of the church the congregation can not unilaterally leave the PC(USA).

The trial court relied on the holdings in Beaver-Butler and Calhoun as examples of other Pennsylvania cases that have upheld the ability of a local church to disaffiliate from a national denomination (March 31, 2010, Trial Ct. Op. at 15). Those cases, however, do not support the trial court’s conclusions because their facts make clear that, at the time the local churches disaffiliated from the UPCUSA, the predecessor of the PCUSA, the UPCUSA governing documents did not prevent local churches from unilaterally disaffiliating. Here, in contrast, the PCUSA Constitution, which Peters Creek Church recognized as obligatory on its members, provided that the relationship between the PCUSA and an individual church can be severed only by the Presbytery.

So at least in Pennsylvania, timing and what you have in your bylaws and articles of incorporation is important.

And while this case is interesting, the legal nuances are a good example of why I don’t go chasing every one of these church property decision.

And now to Kansas…

Back in October a majority of the Presbyterian Church of Stanley, in Overland Park, Kansas, voted to disaffiliate from the PC(USA) and joint the EPC. There was a significant minority with 21% opposed. Control of the property is headed to court so there is not much to talk about there at this time.

However, there seems to be a pretty good back story on this one. A year ago there was an article quoting the church’s pastor as saying that the church was not looking to leave the larger denomination. But that article pointed out that this is the church home of Craig McPherson, a member of the Kansas legislature, who serves as an ordained officer in the church – a deacon. In last year’s legislative session he was a primary supporter of a Kansas House bill that was substituted for State Senate Bill 18 to clarify that Kansas judged church property disputes under neutral principles. The text, as amended by the House with McPherson’s input is included in an article in The Layman. Rep. McPherson published his testimony in support of a 2013 version of the bill. Last year the bill failed on the House floor but the Committee on the Judiciary, of which Rep. McPherson is a member, has reintroduced the bill in the 2015 session. According to the tracking page it is still awaiting committee action.

So there you have a selection of the church property cases recently in play across the country that have PC(USA) connections. If you want another interesting read consider the South Carolina decision giving control of a diocese, its property and its symbols (trademarks) to the group which has separated from The Episcopal Church. A unique case that probably has no impact on Presbyterian interests but one that gives the Episcopal equivalent of the Trust Clause, known as the Dennis Canon, very little weight.

So, enjoy that legal reading if you are so inclined. I might have a bit more to say on property from a PC(USA) polity standpoint in the near future.

A Brief Note On Texas Church Property Court Cases

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There was a brief ripple on the church property legal front this past week as the U.S. Supreme Court declined to hear an appeal of the Texas Supreme Court Decision regarding the Episcopal Church cases. Personally I found this to be an expected outcome and frankly a non-event for reasons I will explain in a minute, but it occasioned a look at another Presbyterian case that has some related characteristics.

The Texas case is the one I discussed recently where the Texas Supreme Court overturned the summary judgement granted to the mainline Episcopal Church in the lower courts based on it being a hierarchical denomination. The Texas decision then sent it back down to the trial court for a full hearing on neutral principals but The Episcopal Church appealed it to the U.S. Supreme Court which this past week included it in a summary order of the cases that they declined to hear.

As I said in the lede, nothing in this struck me as unusual as the high courts prefer to weigh in after a case has run its course in the lower courts. In addition, the U.S. Supreme Court has, to my knowledge, yet to accept any of the recent church property cases for review. As a more experienced observer of the Episcopal church property cases, Allan Haley who writes at the Anglican Curmudgeon, says in his analysis of this order:

The order was expected, because neither decision by the Texas Supreme Court was final. The U. S. Supreme Court almost never agrees to review lower court decisions until they are final. In these two cases, the Fort Worth matter was sent back to Judge Chupp’s court for a trial, and the Church of the Good Shepherd case was likewise sent back to the trial court in San Angelo for further proceedings.

The action by SCOTUS now frees both of those cases to move ahead.

Reading further in his analysis I was interested to see that the parties who have left the mainline Episcopal church have filed for summary judgement and how, in his view of the cases, now it all comes down to one specific question:

In Fort Worth, Bishop Iker’s attorneys have filed a motion for summary judgment which is scheduled for a hearing in December. Given the decision by the Texas Supreme Court, the only question remaining for the trial court to decide is whether or not ECUSA managed to create a valid trust in the Diocese’s property which the Diocese did not revoke when it decided to withdraw in 2008. In Texas all trusts are deemed to be fully revocable at any time, unless the language creating the trust states otherwise.

I am not sure that is the only issue to be resolved but I don’t follow these with the focus or knowledge Mr. Haley does. It will be interesting to see where this goes.

This news has brought to the forefront another Presbyterian case that I have not previously included in these discussions, that of Windwood Presbyterian Church in Houston. As a Christian Post article details the history, they began the process of getting clear title to their property back in 2008 and departed for ECO: A Covenant Order of Evangelical Presbyterians this past May with the property issue still unresolved. As in the Episcopal cases they initially lost on summary judgement in the Texas courts because of the hierarchical church argument but the August 2013 Texas Supreme Court decision caused the Appellate Court to vacate their earlier decision and send the case back to the trial court for a full hearing.

But Mr. Haley’s comment above about whether a valid trust was created caught my eye because that will clearly play a role in this case. Windwood was a member of the PCUS at the time of the union creating the PC(USA) and the PCUS churches had the option of avoiding the trust clause.  I quote from the fourth page of the Appellate decision (emphasis mine):

The Book of Order also contains a provision permitting a local church, with in eight years of the formation of the PCUSA, to opt out of the trust provision if it had not been subject to a similar provision before the formation of the PCUSA. Windwood never exercised this right.

While Windwood has multiple arguments for it’s clear ownership of the property under a neutral principles approach, it seems that their not having exercised this option is a significant hurdle they have to cross. This would appear to be an acknowledgement by the church back in 1991 (eight years after the union) that they are subject to the trust clause in a hierarchical church. I am curious to see how all this balances out as the courts see it.

As a side note, I would point out the case of Timberridge Church in Georgia where Atlanta Presbytery successfully argued that the opt-out was only one of several tests of whether the trust clause was in place and that the congregation was still subject to it in spite of exercising the option. But to my knowledge, that case is unique regarding the interpretation of the opt-out option.

So, as usual, each case carries its own nuances. And, based upon past history on these cases, whichever side prevails in the trial court appeals can be expected. We will see where all this leads.

Reflections On Corporate And Individual Salvation — It Is Not Either/Or But Both/And

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from Wikimedia Commons
 A couple of weeks ago the Rev. Katharine Jefferts Schori, the Presiding Bishop of the Episcopal Church, began a heated debate with these comments in her opening address to the Episcopal Church General Conference:

The overarching connection in all of these crises has to do with the great Western heresy – that we can be saved as individuals, that any of use alone can be in right relationship with God. It’s caricatured in some quarters by insisting that salvation depends on reciting a specific verbal formula about Jesus. That individualist focus is a form of idolatry, for it puts me and my words in the place that only God can occupy, at the center of existence, as the ground of all being.

This comment has been taken in many quarters to equate to the statement of Cyprian of Carthage:

Outside the Church there is no salvation

Part of the reason that this was taken negatively was that it seemed to be addressed at particular churches and dioceses that were departing from the Episcopal church and realigning in their own, new ecclesiastical structure.  For more on how this was taken within the Anglican world as an insult or threat you can check out comments from VirtueOnline, Anglican Curmudgeon, and Sydney Anglicans.  In the broader blogosphere there were comments, as much about the theology as the church politics, from Apprising Ministries, Internet Monk, and Bible Belt Blogger.  Maybe most notable were comments from two seminary presidents — Richard Mouw at Fuller and Albert Mohler at Southern Baptist.

The comments got me thinking both about confessional Christianity as well as the ecclesiastical relationship to salvation.  I’ll leave the former to another time and just address the latter now.

Let me state my thesis right at the beginning:  Based on my understanding of Scripture and Reformed thought this is not an either/or proposition but a both/and situation.  To put it in the simplest form — The Church is the bookends around individual salvation.

Part of the expressed concern is a long-standing theological tension that exists between individual salvation and corporate salvation.

On the individual side there is the ancient confession that “Jesus is Lord,” and the more modern tool – the Sinners Prayer.  As Dr. Mohler nicely points out in his piece, the mechanistic use of these formulae can be manipulative and gives a simplistic representation of the meaning and depth of salvation.  There is also concern for “Lone Ranger Christians” and the “Jesus and Me” situation, both of which are labeled heresies by some, where the only thing that matters is if a person has a right relationship with Jesus exclusive of the role other Christians play in that relationship.  All of this presents a simple view of the rich experience of Christianity.

On the other side is the belief that all you need to do to be a Christian is to jump through the hoops to become a member of the church.  The individual relationship with God is not what is important, but rather it is the relationship in the community — fidelity to the teachings of the church and participation in its sacraments.  You are saved by being a member — corporate status precedes salvation.  This view negates the personal call and responsibility that is involved in the Christian life.

Now most theological positions are more complex and I have caricatured the two extremes.  The varying theological positions are generally found in the middle ground.  Dr. Mouw in his article reflects this by saying that individual salvation is important but “that individual salvation is not enough.” (emphasis his)  He also mentions the centrality of the church in salvation.  I suggest that the answer to individual versus corporate lies very close to the center of this spectrum.

To begin, let us turn to the first post-ascension, and in many ways the archetype, conversion experience — the Day of Pentecost.  On that day one of the men in the crowd asks Peter “what should we do?” (Acts 2:37) and Peter responds:

Repent, and be baptized every one of you in the name of Jesus Christ so that your sins may be forgiven; and you will receive the gift of the Holy Spirit. (Acts 2:38)

The center of the conversion story is the recognized need, individual repentance and baptism leading to the indwelling of the Holy Spirit.

But note the full context in the story — It begins with the believers receiving and being empowered by the Holy Spirit. (Acts 2:4)  When the crowd mistakes their divine empowerment for inebriation (Acts 2:13) Peter preaches a sermon (Acts 2:14-36).  Only then comes the question about what they should do.  And the response includes baptism.

For those of a Reformed bent you probably caught where I am going with this, but for those who are not as familiar with it, the Reformed view of the marks of the church can be expressed like this:

Hence the form of the Church appears and stands forth conspicuous to our view. Wherever we see the word of God sincerely preached and heard, wherever we see the sacraments administered according to the institution of Christ, there we cannot have any doubt that the Church of God has some existence, since his promise cannot fail, “Where two or three are gathered together in my name, there am I in the midst of them,” (Matth. 18: 20.)  [Calvin, Inst. 4.1.9]

The repentance and conversion experience are bracketed by the Word preached and the sacraments administered.  The individual is buttressed and supported by the corporate.

And what happens?  “And day by day the Lord added to their number those who were being saved.” (Acts 2:47b)

The interplay of the corporate and individual is remarkable.  The core of the experience is individual — you must repent for yourself.  But the initiative belongs to God in the empowering by the Holy Spirit that produced a sermon that with the Spirit’s touch convicted those that heard it such that they were “cut to the heart.” (Acts 2:37a )  The first Great End of The Church: The proclamation of the Gospel for the salvation of human kind.  But the story does not end there because with individual repentance comes the sacrament of baptism that produces new believers that are added to “their number,” that is the New Testament Church, daily and share the breaking of the bread.

Empowered by God the Church supplies the preaching of the Gospel that leads to individual repentance which through the sacraments bring those individuals into the Covenant Community that is the Church.

In fact, in John Calvin’s thinking, salvation through election and the Body of Christ found in the Church were inseparable and each presumed the other.

Sometimes when [the Scriptures] speak of the Church they mean the Church as it really is before God – the Church into which none are admitted but those who by the gift of adoption are sons of God, and by the sanctification of the Spirit true members of Christ. [Calvin, Inst. 4.1.7]

I won’t repeat the argument here that I made in my last Calvin post, but the essence is that if salvation is the act of adoption by God into His family then the Church and Salvation are two sides of the same coin.  It reverses Cyprian’s statement so that “Outside salvation there is no Church.”

Now I won’t pretend that either Scripture or the writings of John Calvin are totally clean cut on the issue.  There is the story of Paul and the jailer in Acts 16:25-35 where the jailer, after the earthquake, asks what he must do to be saved.  And the story of Peter and Cornelius in Acts 10 where Cornelius has a vision and sends for Peter.  In both cases there is a divine prodding, earthquake and vision, and there is a proclamation of the Gospel of Jesus Christ.  There is also a baptism of those present after hearing the Gospel proclaimed.  The nature of the repentance or individual acceptance of the good news is a bit murkier.  It is clear that in both cases the head of the household has an individual conversion experience.  But the result is the baptism of the whole household.  It is left as an exercise for us, the readers, to decide if all members of the household had an individual conversion experience or if the repentance of the head of the household, and maybe some others, was enough.  I won’t pursue that any further except to affirm that at a basic level there was the pattern of divinely assisted proclamation of the gospel, some level of individual repentance, and the inclusion of multiple individuals into the Covenant Community through baptism.

From another perspective, Calvin includes in the Church Invisible, the true church known only to God, individuals who are not part of the visible church body but who have none-the-less not rejected Christ or the Church. (Inst. 4.1.9)  While this might argue against the need for the role of the Church and the possibility of isolated individual salvation, remember that Calvin is viewing this in the context of the Church Invisible.  Community and salvation form an indivisible union.  From a practical standpoint, and from my reading of the Institutes, this represents a particular moment in time and does not necessarily speak of the conversion which came before or the Christian life that is to follow.  And of course, this all ultimately falls in the realm of the Sovereignty of God and His perfect will.

It is probably also necessary to acknowledge that the idea of “individual salvation” takes on a nuance for the Reformed side that is not part of the view of much of the rest of the Church.  This difference is not a major issue for the discussion here where the focus has been on individual salvation in the sense that salvation comes to each of us individually apart from whatever role the wider community plays in the process.  Outside Reformed circles the “individual” nature of salvation also includes the idea that there is an individual choice in accepting salvation based on our human free will.  The Reformed view is that our condition is far enough corrupted by our sinful nature that left to ourselves we can not make the free choice for salvation and God must do that for us.  So while God saves each of us individually, as opposed to a chosen nation of the Old Testament, we can differ over what role an individual can play in that salvation.

So in summary, what scripture gives us as examples of salvation in the New Testament church is the necessity of the corporate component and the individual part, but neither is sufficient by itself.  The church’s ministry of Word and Sacrament are the foundation on which in individual receives salvation — the Word to convict and the Sacraments to affirm.  It is not individual salvation or corporate salvation but individual salvation through the corporate presence.

Presbyterians Do Things Differently

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Love it or hate it Presbyterians are big on committees.  That is how we do things as a Covenant Community.  That is how we hold ourselves accountable.  And it allows the church to discern together God’s will as we listen to each other and are guided by the Holy Spirit.  And the PC(USA) has an open meetings policy.

And you probably know that back in February the Moderator of the General Assembly of the PC(USA) named a Special Committee to study civil unions and Christian marriage.  It met back in March and will meet again in two weeks.

Being on that Special Committee myself I had to laugh when I read this news about the Episcopal Church today:

The House of Bishops Theology Committee is refusing to release the
names of members of a sub-committee it has appointed to study same-sex
relationships. The existence of the panel was first reported in the Blue Book,
which contains information relevant to General Convention, 2009.
However, the Rt. Rev. Henry Parsley of Alabama, chair of the Theology
Committee has refused several requests to disclose the names of its
members.

Thanks to The Lead for this information.  It seems that since it is a sub-committee of the Theology Committee the possible members of the sub-committee are known.  Still, an interesting way to do business.  The LGBT advocacy group Integrity responded, in part, with this:

“If this isn’t the height of absurdity and insult I don’t know what
is,” said the Reverend Susan Russell, President of Integrity USA, the
LGBT advocacy group within the Episcopal Church. “It sends a horrific
message to gay and lesbian people – both inside and outside the church.
The very concept of “secret studies” elicits painful memories of secret
studies done on other minority groups in the past and is utterly
contrary to our baptismal promise to respect the dignity of every human
being. There is absolutely nothing dignified about a secret study of a
group already being discriminated against. It is suspect, disingenuous
and dishonest.”

This has “gone viral” on the Episcopal and Anglican blogs:  The Friends of Jake, Preludium, Telling Secrets, Thinking Anglicans, are ones I have seen so far and I am sure there are many more to come.

I will update as news develops.

Update – 6/4/09:
There has been a response from the chair of the Theology Committee, the Rt. Rev. Henry N. Parsley, Jr. The official statement says, in part:

…I wish to assure those concerned that the panel very intentionally
represents a robust range of views on the subject and includes gay and
lesbian persons.

and

This project has been designed in full communication with the House of
Bishops. It has always been the committee’s intention to publish the
names of the panel when the work has reached the appropriate stage. We
believe that for a season the work can best be accomplished by allowing
the panel to work in confidence. This supports the full collegiality
and academic freedom of the theologians and provides the space they
need for the deep dialogue and reflection that is taking place among
them.

And the church has issued a press release referring to this statement.

The response from within the Episcopal Church continues and outside the Anglican circles a few others, besides myself, who have commented include more media-oriented blogs BibleBeltBlogger, Desert’s Child, and Daily Religious.

Update – 6/6/09
There are now reports that the Episcopal Church web site which previously promised transparency in their operations has removed that claim.  The story from BibleBeltBlogger and a response from Preludium.

And a little humor from The Lead about selecting the members of the secret committee.