This time it’s in South Carolina. Yesterday’s Wall Street Journal reports (subscription required) on litigation between two rival factions in the Episcopal Diocese of South Carolina. One faction, representing the leadership and about two-thirds of the membership, broke away from the national Episcopal Church in November over the national body’s liberal approach to sexuality and other issues. The minority faction has remained loyal to the national body. Both factions assert ownership of the diocese’s property, including St. Michael’s Church in Charleston (above). In total, the diocese’s church buildings, grounds, and cemeteries are worth around $500 million.
Church property disputes have become increasingly common in America, as local congregations distance themselves from more liberal national church bodies. In the Episcopal Church alone, there have been a dozen such disputes in the past few decades. Human nature being what it is, each side in such a dispute thinks of itself as the true depository of the faith, with a moral, and legal, right to church property.
Civil courts have adopted a couple of different approaches to resolving such disputes, depending on how the relevant legal instruments are written: the “deference” approach, which defers to the decision of the highest authority within the church structure, and the “neutral principles of law” approach, which attempts to resolve disputes using standard property law principles. Both approaches try to promote church autonomy by insulating internal church government and theological questions from civil court review.
I’m not sure which approach the South Carolina courts take. At the moment, the fight is whether the litigation should be in South Carolina courts at all. The national body is seeking to remove the action to federal court, where, I assume, it thinks it will get a more receptive hearing. Whichever court hears the case, the track record of prior litigation suggests the national body should be confident of ultimate victory –though of course it depends on how the deeds, trust documents, and bylaws are written. For civil-law purposes, the Episcopal Church is a hierarchical church, and courts would normally defer to the highest authority within the church–I assume that’s the national body– on ownership of church property. That’s what happened in a recent case involving the Fall Church in Virginia. If the national body wants to recognize the smaller, loyal faction as the rightful owners of church property, the majority faction will likely have to find somewhere else to pray.
I’ve posted before about legal issues surrounding the Church of the Holy Sepulcher in Jerusalem, which most Christians hold to be the site of Jesus’ crucifixion, burial, and resurrection. The building is shared among several Christian communions, all of whom accept, more or less, the so-called “Status Quo,” a compilation of rules and customs dating to Ottoman times that governs possession and use of the church. I hadn’t seen this anywhere in the scholarship, but it seems that the Status Quo may also cover payment of the church’s water bill. According to the Greek Orthodox Patriarchate of Jerusalem, which has the greatest share of rights in the church and, apparently, responsibility for utilities, the Status Quo exempts the church from water bills. According to Hagihon, the Israeli utility that supplies the church with water, the Patriarchate is incorrect. Hagihon says Israeli law does not exempt religious organizations from water bills and that the church owes roughly $2 million. Last week, Hagihon obtained a court order freezing the Patriarchate’s bank account until payment is made. The Patriarchate says that, with its bank account frozen, it cannot fund day to day operations and that it will have to close the church. Cooler heads undoubtedly will prevail, but for the moment there’s an impasse. I don’t know whether any of the other communions have offered to chip in, but the Greek Patriarchate may not want them to do so. Under the Status Quo, paying to maintain any part of the property can be an assertion of the right of possession — and the Patriarchate surely does not want to create a precedent suggesting that other communions have greater rights in the church.
Peter T. Leeson (George Mason U.) has posted “God Damn”: The Law and Economics of Monastic Malediction. The abstract follows.
Today monks are known for turning the other cheek, honoring saints, and blessing humanity with brotherly love. But for centuries they were known equally for fulminating their foes, humiliating saints, and casting calamitous curses at persons who crossed them. Clerics called these curses “maledictions.” This article argues that medieval communities of monks and canons used maledictions to protect their property against predators where government and physical self-help were unavailable to them. To explain how they did this I develop a theory of cursing with rational agents. I show that curses capable of improving property protection when cursors and their targets are rational must satisfy three conditions. They must be grounded in targets’ existing beliefs, monopolized by cursors, and unfalsiﬁable. Malediction satisﬁed these conditions, making it an effective institutional substitute for conventional institutions of clerical property protection.
Here’s an unusual church property dispute. The Holy Transfiguration Monastery in Brookline, Massachusetts brought a copyright infringement action against a former monk who had posted on his website English-language translations of ancient Christian texts the monastery had prepared. The former monk, now an archbishop in a different Christian communion, raised a number of copyright defenses, including fair use and non-originality. Last week, the First Circuit rejected all the archbishop’s defenses and ruled in favor of the monastery. The copyright issues are quite dense and apparently of real importance to copyright lawyers. For CLR Forum readers, though, the case is significant for its implications for church autonomy doctrine. The archbishop argued that the monastery’s statutes gave title to the texts to the monastery’s then-parent body, the Russian Orthodox Church Outside Russia, or ROCOR. (The monastery has since ended its affiliation with ROCOR). Using the neutral principles approach, the First Circuit rejected this argument. Applying “the Monastic Statutes’ plain terms,” and “without treading upon religious doctrine, church governance, and ecclesiastical laws,” title to the texts rested in the monastery, not ROCOR. The case is Society of the Holy Transfiguration Monastery, Inc. v. Gregory, 2012 WL 3125120 (1st Cir., Aug. 2, 2012).
Back in January, I wrote about the Status Quo at the Church of the Holy Sepulcher in Jerusalem, the informal set of customs that governs the rights and responsibilities of the major Christian communities in the shrine. From a secular and theoretical perspective, the Status Quo is a fascinating answer to a collective action problem. But the church is a place of deep faith as well, a site that has drawn pilgrims for centuries. Yesterday, the Washington Post ran a piece that adds some human context to the subject, an essay on the nightly liturgies that take place in the church. It’s all very beautiful, but, in keeping with the Status Quo, there’s an undercurrent of watchfulness. “We keep almost awake at night here to see that things are done properly, on time, that no one will trespass the other’s right by doing things that he’s not supposed to do,” one priest explains. ”So we have to be careful and watch what we do or what they do.” Worth reading.
Howard Friedman at Religion Clause reports that coordinated cert petitions have been filed in three recent property disputes between national church bodies and local congregations. Two decisions, discussed by CLR Forum here, arise from the Georgia Supreme Court; one comes from the Connecticut Supreme Court. All three cases question the application of the “neutral principles of law” doctrine, one of the two main approaches to church property disputes, which allows civil courts to resolve such disputes using regular civil law principles. The local congregations that lost these cases, two Episcopalian and one Presbyterian, are the petitioners; the national church bodies have not yet filed their responses.
In the latest turn in a long-running litigation, a Virginia trial court ruled last night that breakaway parishes must vacate church property, including the landmark Falls Church in suburban Washington, DC (left), and return possession to the Episcopal Diocese of Virginia. In 2005, several Virginia parishes voted to leave the Diocese over a dispute, among other things, about the ordination of openly gay clergy. These parishes affiliated themselves with a new denomination, the Anglican Church of North America, but continued to occupy their existing church buildings, to which they claimed a right under Virginia law. When the Diocese sued, state courts initially sided with the breakaway parishes. The Virginia Supreme Court ruled, however, that those courts had relied on an unconstitutional statute and remanded the case. Yesterday’s decision, on remand, favors the Diocese. The breakaway parishes say that they are reviewing the latest decision. In recent months, courts in New York and Georgia also have ruled against breakaway congregations in church property disputes involving the Catholic, Episcopal and Presbyterian Churches.
Inspired by last month’s announcement of an agreement to repair the Church of the Nativity in Bethlehem, over the break I read an interesting recent book on the church’s sister shrine, the Church of the Holy Sepulcher in Jerusalem, which many Christians believe to be the site of Jesus’ crucifixion and resurrection. Like the church in Bethlehem, the Holy Sepulcher is shared among monks from three different Christian communities, Armenian Apostolic, Greek Orthodox, and Latin (Roman Catholic), according to something called the “Status Quo,” a kind of customary law dating to Ottoman times, which governs possession and use of the church in minute detail.
It is not an entirely harmonious relationship. Monks from the rival communities not infrequently come to blows in disputes about use of altars. Only a couple of weeks ago in Bethlehem, monks got into a fistfight about who had authority to clean parts of the Church of the Nativity in preparation for Christmas celebrations. You might think these fights are driven by theological differences, but those are somewhat secondary. Under the Status Quo, cleaning an area is an assertion of possession. So communities bitterly resent unauthorized attempts to tidy up. Similarly, because paying for repairs likewise indicates possession, the communities often block each other’s attempts to repair common areas of the church, like the roof. This can lead to delays in necessary maintenance that place the church in danger of collapse.
From a Christian or even conservationist perspective, all this is very disedifying. From the perspective of a secular lawyer, however, the Status Quo is fascinating. In Saving the Holy Sepulchre: How Rival Christians Came Together to Rescue Their Holiest Shrine (Oxford 2008), Hebrew University Professor Raymond Cohen describes the decades-long process by which Armenian, Greek, and Latin monks negotiated an agreement to make essential repairs to the Holy Sepulcher, which had reached a terrible state by the middle of the last century. Working within the Status Quo, the three communities, each of which distrusted the other, somehow worked out a modus vivendi that allowed them to save the shrine. (One important prod: the communities’ fear that if they didn’t reach agreement on saving the church among themselves, secular authorities would intervene and upset the Status Quo in a way each would find unpleasant). The process led, if not to affection, then to a kind of mutual regard among the monks – at least some of them. Cohen’s story is one of the triumph of rationality over a massive collective action problem: inspiring, no matter what one’s religious commitments.
American law and religion scholars know the case of St. Nicholas Cathedral, a Supreme Court decision from the 1950s, about which Rick Garnett has written recently. Briefly, the case involved a dispute over a Russian Orthodox cathedral in New York between two parish councils, one loyal to the Moscow Patriarchate and the other loyal to the Russian Orthodox Church Outside Russia (ROCOR), a group that broke away from the Communist-dominated Patriarchate in the twentieth century. It turns out that a similar dispute has been making its way through the French courts. Since the fall of Communism, the Moscow Patriarchate and ROCOR have reestablished communion, and the Patriarchate has been reasserting its right to church properties around the world, including St. Nicholas Cathedral in Nice (above), an impressive, onion-domed structure, reputedly the largest Orthodox cathedral in Western Europe. The local parish council objected to returning St. Nicholas to Moscow and a six-year legal battle ensued. The battle ended last week, when the local council sadly turned over the keys to the Patriarch’s representative. The story is here, from a local paper (in French).
Another state high-court ruling highlighting the importance of the neutral principles of law doctrine in church property disputes. This week, the New York Court of Appeals dismissed a lawsuit that parishioners of Our Lady of Vilnius Roman Catholic Church in downtown New York City (left) had brought against the church’s board of trustees, seeking to overturn a decision to dissolve the parish and demolish the church building. In 2007, the Catholic Archdiocese of New York, citing the parish’s declining membership and the decayed state of the church building, directed that the parish be dissolved; shortly thereafter, the church’s board of trustees voted to demolish the church building. A group of parishioners then sued, arguing that as members of the parish they, not the board of trustees, had the ultimate say. Applying the neutral principles of law doctrine, the Court of Appeals examined the relevant legal instruments and rejected the parishioners’ argument. The church held the deed, the court explained, and the church’s bylaws gave the board of trustees, not the parishioners, control of the property, to be exercised in conformity with archdiocesan directives. Our Lady of Vilnius Church, about 100 years old, was the traditional Lithuanian Catholic parish in New York City. The case is Blaudziunas v. Egan (N.Y. 2011).