Over the last few weeks and months there have been some significant developments regarding ministers and churches that are concerned with the direction the Kirk is headed.

Briefly, the background to the recent actions is in the on-going discernment by the Church of Scotland through the General Assembly to determine the church’s stand on same-gender relationships. The current stream can be traced back to January of 2009 when Queens Cross Church in Aberdeen extended a call to the Rev. Scott Rennie who was in a same-gender relationship. This call was sustained by the presbytery and later that Spring the dissent and complaint concerning the presbytery decision was refused by the General Assembly. The Kirk has done what in my opinion is a wise thing and that is to deal with the matters of same-gender relationships as a whole including consideration of ordination standards and civil unions and marriages. The 2009 General Assembly, after refusing the dissent and complaint, considered some additional overtures and ended up setting up a Special Commission to consult with the church more widely concerning these matters. The Special Commission brought to the 2011 GA a set of recommendations which included a choice of which direction to head concerning this matter. By a vote of 351 to 294 the General Assembly chose to “Resolve
to consider further the lifting of the moratorium on the acceptance for
training and ordination of persons in a same-sex relationship, and to
that end instruct the Theological Commission to prepare a report for the
General Assembly of 2013…” So that is where we are, waiting for next year’s GA to see how the report of the Theological Commission is acted upon. From there, any polity changes based on the Theological Commission report would take another year.

Except that not everyone is waiting. With a trajectory chosen some members of the Church of Scotland are concerned with what they see as a non-biblical direction and are considering their options.

Most recently, the Rev. Paul Gibson has moved from the Church of Scotland to the Free Church of Scotland, being accepted by the Commission of Assembly on 4 October. In the Free Church news article he is quoted as saying:

I’m under no false illusions that somewhere out there is the perfect denomination or Church.

However, in these days of political correctness, pluralism and great
moral confusion, I believe that what is so desperately needed is not
further confusion and liberal ambiguity from the Church, but instead a
consistent appeal to the unchanging truths of God’s word, the Bible.

The Church should, by God’s grace, do all in its power to further,
rather than hinder, the good news of Jesus Christ in Scotland.

Something about this transfer caught the attention of the mainstream media and Rev. Gibson did an interview with The Scotsman which was picked up by several other news outlets. Something that caught my attention was the nuance that each headline writer gave. In The Scotsman it is said that he “defects” to the Free Church. The Christian Post says he was “forced out,” and at least they use that term again in the body of the article. And in the Christian Institute article the headline says he “quits Kirk.”

The other news is related to the congregation of St.George’s Tron, a landmark church in the centre of Glasgow. (Hey, if your URL is thetron.org you have something going for you. )

Back in June, after a year of prayer and discernment, the church decided to leave the Church of Scotland because of their disagreement with the GA’s chosen trajectory. This past Tuesday the Presbytery of Glasgow received a report from a special committee and, based on documents online, approved the report’s recommendations to retain the property — the buildings as well as the contents, bank accounts and church records. The presbytery decision is fresh so the situation is still developing but this disagreement could certainly head to the courts.  In the statement from last Sunday the Rev. Dr. William Philip addresses this:

Now, we mustn’t pre-judge the issue, Presbytery on Tuesday night can
reject this report, but I have to tell you that I think that seems
extremely unlikely. And so, barring an intervention of God, that means
that we must be prepared for the fact that we must soon be forced out of
this building where we meet and where we so delight to share the gospel
of the Lord Jesus Christ. It may also be that the family and I are
forced to leave the manse and that we as a Church may lose all of our
other assets as well. (These things are more complicated, we may have a
better legal defence there, although it does seem that the Scottish
charity regulator has tended to side with the Church of Scotland view.
But as I say, these things are complex.)

Nevertheless, the deliverance being urged upon Presbytery on Tuesday
night includes taking further legal action without delay to dispossess
us of these things. As you know, there is already legal action underway
personally against myself and our Session Clerk and our treasurer.

[Note: the last action he is referring to is most likely the already initiated legal action to recover the church records.]

There are articles about the decision from The Scotsman and the Herald Scotland.

Let me make a few comments on church polity and legal precedents in this matter.

The Church of Scotland does not have a “trust clause” as American Presbyterians are familiar with. As I understand the property situation in the Kirk, title to church property in Scotland is, with minor exceptions, held by the General Trustees at a national level. This clearly presents a major legal hurdle for a congregation to overcome to retain their buildings and as noted in the statement above the charity regulator tends to side with the Church of Scotland.

Now, I have been advised that Scottish laws, and property laws in particular, have some unique aspects to them so I don’t want to go too far out on a limb here, but from the reading I have been doing the current situation does appear to present an up-hill battle for the congregation.

There is one recent church property decision that may present a precedent that supports the denomination and that is the July 2009 decision in the case of  Smith and other v Morrison and others. In this case the Free Church of Scotland successfully sued the Free Church of Scotland (Continuing) claiming that when the two groups split in 2000 the Free Church (Continuing) congregations were not entitled to take the property with them.

There is an interesting nuance here because it appears that under Scottish law a church may keep property if they separate after, and because, the denomination has “departed from fundamental principles.” The Free Church decision talks extensively about fundamental principles and how they are not an issue in that case. One such passage says

[63] The national church cases were of limited importance to
the essential issues in the present case. Each dealt with the issue of
fundamental principles in a different context. The pursuers here did not aver
departure by the defenders from fundamental principles.

The implication throughout is that if fundamental principles were at stake the decision might have been different. Since this case does involve doctrine we will have to see if that does qualify as a fundamental principle and makes a difference in any legal proceedings.

[A couple of interesting points for those familiar with current happenings in American cases. The first is that American courts stay clear of doctrinal issues in property cases under the “neutral principles” concept and can not judge whether one side or the other has departed from fundamental principles of doctrine. The second is that for PC(USA) folks this idea of fundamental principles probably carries echos of the ongoing discussion about essential tenets and if this question goes forward it will be interesting to see the arguments made about where these issues are, or are not, fundamental principles of doctrine.]

It is interesting to note that the Free Church (Continuing) is now trying to cast their continuing property dispute with the Free Church as a fundamental principles case. Now that the Free Church has relaxed their position on exclusive unaccompanied hymn singing the Free Church (Continuing) is claiming that they have made a change regarding their fundamental principles. (Opinion: I personally don’t think that will go very far.)

If you want more on the FC/FCC property dispute you can find it with Martin Frost and Scottish Christian. There is also the statement by the Free Church regarding the decision on the Sleat and Strath Free Church blog. These actions do continue and about a year ago the decision was upheld on appeal. In the decision regarding the appeal one of the judges, Lord Drummond Young, wrote

In this respect, the exhortation to long suffering forbearance and unity
of the spirit within a congregation may be as relevant to Broadford and
other communities in Scotland in the 21st Century as it was to Ephesus
in the First Century.

And so just as there is the prospect of more Free Church cases to reclaim property there is also the prospect of not just St. George’s Tron but other Church of Scotland congregations getting involved in legal actions if they decide to leave the denomination.

As with so many things Presbyterian there is a long way to go here. Stay tuned…

UPDATE: 15 October – Herald Scotland brings the report that legal proceedings against St. George’s Tron have been initiated.

UPDATE: 21 October – The Church of Scotland has issued a statement about the St. George’s Tron situation. In the statement it is pointed out that the congregation has unpaid contributions to the Presbytery of Glasgow and has a loan of almost £1M from the General Trustees. (H/T Peter Nimmo)