That’s the question that’s got to be asked about an open letter published at the Layman Online today. Either the writer, a lawyer in Los Angeles, has found the key that will unlock the PCUSA’s trust clause and allow any congregation that wants to leave with its property to do so…or he hasn’t. This has the potential to either be extraordinarily important for dozens if not hundreds of PCUSA churches. Of course, it might also turn out to be a false alarm. In either event, keep an eye on Torrance, and watch for more to come.
The attached are articles of incorporation of the Presbyterian Church (USA) filed Dec. 22, 1986. It was located by counsel in the Serone case during the deposition of Clifford Kirkpatrick. It is one of those hidden documents. You can read it a dozen times and not recognize the key provision.
As counsel in the Torrance First Presbyterian Church case pending in Los Angeles BC 332180, we used the document in an action which is pending.
Please refer to Article VII of the articles, which provides that the PCUSA has no members. It is a non-constituent entity in Pennsylvania. Thus, a local church cannot be a member of the PCUSA as a matter of law.
A local church therefore is not bound by a trust provision in the Book of Order adopted purportedly on June 13, 1984, but not finalized until May 29, 1984, the date of the next General Assembly (one-year rule under Article 18.0300 of the BOO) because it is not a member and cannot be a member. A trust provision would only apply to members. Many presume membership, but this is a false argument and a false prophet.
Allan Wilion
Los Angeles, Calif.
UPDATE: Welcome, T19 readers!
Are there any attorneys out there who can answer this questions: is there a legal distinction between the PCUSA as a legal corporation and PCUSA as a religious organization? Is it possible for congregations to be “members” of the religious organization and not members of the corporation? And which status has legal priority, the corporation or the religious organization?
The Reformed Pastor 
August 2, 2007 at 11:23 pm
I would love for that to be true. I am, however, skeptical. Were it true, we could put this whole issue to rest. I would hope that departing congregations would seek to separate amicably – though I’m not sure that will happen. Still, it would be good for the whole ‘court’ option to be removed from the table.
August 3, 2007 at 5:58 pm
My father, Kenneth W. Linsley, Esq., was the Manager of the Legal Services Department, Support Agency of the United Presbyterian Church after he retired from 21 years as a US Air Force Officer (JAG). He was an evangelical Christian who taught evening classes on Personal Evangelism at the New York School of the Bible.
He saw first hand how the UPC and other mainline denominations were drifting into dangerous waters doctrinally and the impact that this was having on conservative congregations. He was angered by many of the UPC’s decisions while he worked at the Riverside Drive Headquarters, but his professionalism kept him focused on advocating for his client’s best interests, in this case, the retention of UPC’s property.
Were my father alive today, he would, as a retired lawyer, be defending churches that seek to sever relations with the liberal “reveisionist” Presbyterians. Of that I am confident. In 1973 he told my older sister that a persecution of conservatives Believers was coming and had already started. In 1982, he told me: “Were the Communists or Socialists to take over, you can be sure that I would be on their hit list for being a military man, a practitioner of the Law, and a Christian.”
The following document details how property disputes precipitated by theological differences between liberals and conservatives were to be handled by the leadership of The United Presbyterian Church in 1980.
G-8.0201 (6) UPC, 1980, pp. 99-105, New Church Property
REPORT OF THE PERMANENT COMMITTEE ON CONSERVATION OF PROPERTY
This report was referred to the Assembly Committee on Bills and Overtures and was designated Reference X-I. See page 35.
The Manual of the General Assembly provides for this committee as one of the permanent committees of the General Assembly as follows:
Committee on Conservation of Property
There shall be a Committee on Conservation of Property to advise the Stated Clerk and counsel the General Assembly as to the actions to be taken to retain and conserve property of The United Presbyterian Church in the United States of America held by any of the corporations of its judicatories and congregations.
This Committee shall consist of five persons appointed annually by the Moderator with the Moderator and the Stated Clerk serving ex officio (Manual or the General Assembly, 1979, page C-5.)
The Rev. Howard L. Rice, Jr., Moderator of the 191st General Assembly (1979), appointed the following persons to the committee: Rev. James D. Brown, Santa Fe, New Mexico, Chairperson; Nellie M. Fergus, Esq., Pittsburgh, Pennsylvania; Duncan MacAffer, Esq., Albany, New York; Richard H. Miller, Esq., Milwaukee, Wisconsin; James H. Randolph, Esq., New York, New York; Rev. Howard L. Rice, Jr., Moderator of the 191st General Assembly (1979), ex officio; and William P. Thompson, Esq., Stated Clerk of the General Assembly, ex officio.
The committee met in New York City on July 11 and August 2, 1979. All members of the committee were present at each of its meetings. In addition, the following persons were present by invitation for all or part of the meetings: Mr. Otto K. Finkbeiner, Associate Stated Clerk and Treasurer of the General Assembly; Mrs. Juanita H. Granady, Executive Assistant to the Stated Clerk of the General Assembly; Kenneth W. Linsley, Esq., Manager, Legal Services Department, Support Agency; Rev. G. Daniel Little, Executive Director, General Assembly Mission Council; Rev. William P. Lytle, Chairperson, General Assembly Mission Council; George W. McKeag, Esq., Solicitor of the General Assembly, Morgan, Lewis and Bockius, Philadelphia, Pennsylvania; Rev. Robert T. Newbold, Jr., Associate Stated Clerk of the General Assembly; Benjamin M. Quigg, Jr., Esq., Morgan, Lewis and Bockius. Philadelphia, Pennsylvania; Rev. Robert F. Stevenson, Associate Stated Clerk of the General Assembly; Rev. Robert R. Woods, Vice-Moderator of the 191st General Assembly (1979).
The meetings of this committee were occasioned by the decision of the Supreme Court of the United States, announced on July 2, 1979, in the case of Jones v. Wolf.
JONES v. WOLF
This case involved the property of a particular church of the Presbyterian Church in the United States (PCUS), sometimes referred to as the “Southern Presbyterian Church.” Although the Constitution of that church is not identical with the Constitution of The United Presbyterian Church in the United States of America (UPCUSA), the polities of the two are sufficiently similar and the language of the opinion is sufficiently far-reaching that this committee is convinced that the case causes confusion for United Presbyterians. This is evident when one recalls that in property matters both churches have relied upon the legal doctrine of “implied trust”–that all church property is held in trust for the whole church.
The Vineville Presbyterian Church of Macon, Georgia, was organized as a constituent church of the Augusta-Macon Presbytery of the PCUS. In 1973, at a congregational meeting attended by a quorum of the members of the Vineville Church, 164 of them voted to withdraw from the PCUS. while 94 voted against this. The majority subsequently united with the Presbyterian Church in America and has retained the church property.
The Augusta-Macon Presbytery appointed a commission to investigate the dispute. This commission eventually issued its decision holding that the minority, comprised of members still loyal to the PCUS, constituted the “true congregation” and removing from the majority “all authority to exercise office derived from the [PCUS].” This decision was never taken to a higher judicatory by complaint or appeal and was therefore the final determination of the issues made by any church body.
Representatives of the minority brought an action in the civil courts of Georgia seeking exclusive possession and use of the church property. The trial Court denied them the relief sought. basing its decision in favor of the majority on the “neutral principles of law” concept applied by the courts of Georgia in recent years in disputes regarding church property. The Supreme Court of Georgia affirmed and the Supreme Court of the United States issued its Writ of Certiorari.
The Stated Clerk of the General Assembly, Mr. William P. Thompson filed an amicus curiae brief supporting the position of the loyal minority. A number of other churches, including Presbyterian, Reformed. Lutheran, Orthodox, and Roman Catholic, filed their own briefs or joined in that of Mr. Thompson.
The Supreme Court held that a State may adopt a “neutral principles of law” approach to determine disputes regarding church property without contravening the First and Fourteenth Amendments to the United States Constitution. This approach was thought to permit a State court to avoid issues of doctrine and polity as determined by a succession of church judicatories and to limit its consideration to the deed to the property, the charter of the particular church, the statutes of the State pertaining to the holding of church property, and the constitution of the general church. The Court vacated the decision of the Supreme Court of Georgia and remanded the case to that court for further proceedings necessitated by its failure to identify the grounds upon which it had based its decision awarding the property to the majority who had withdrawn from the PCUS.
Mr. Justice Blackmun delivered the opinion of the Court in which four other justices joined; Mr. Justice Powell filed a dissent in which the Chief Justice and two other justices joined.
Significance of the Decision
This decision has already prompted widespread discussion among churches the civil courts describe as “hierarchical”–Reformed, Lutheran, Methodist, Roman Catholic, and Orthodox, as well as Presbyterian. All of them have expressed concern about the confusion the decision has injected into the law regarding church property.
All agree that the decision does not affect church property received subject to limitations imposed upon its use or transfer by the grantor or donor in the conveyance. Such restrictions are meticulously observed by all of these churches. Their concern centers on church property received for the use of the church without such strictures. This type of property has become the subject of increasingly frequent litigation.
These churches are troubled not only because of the value or the church property involved in such cases, although that is often substantial. They are far more concerned about the use to which that property will be put by those given possession of it by the civil courts. The choice between rival claimants may appear to rest upon the application of “neutral principles” of property law with which lawyers and judges are quite familiar, but each such decision has the secondary result of determining the religious doctrines that will be taught there and the ecclesiastical authorities whose jurisdiction will be acknowledged. A decision regarding the possession and use of church property almost invariably determines issues of faith and order.
Jones v. Wolf has left the outcome of such cases in many states in doubt.
Present UPCUSA Policies
The result in Jones v. Wolf was made possible because the Constitution of the PCUS does not state explicitly that all property of each particular church is held in trust for the PCUS as a whole. Neither does the Constitution of the UPCUSA contain such an explicit provision. Both churches have relied upon the concept of “implied trust,” a doctrine that in many states may no longer be relied upon with confidence following the recent decision.
Serious as this confusion rcgarding church property certainly is, the decision is considered by many to raise even deeper questions about the clarity with which the United Presbyterian Church has articulated its understanding of the nature of the church in its Constitution. From the days of their founders in Europe to the present, presbyterian and Reformed theologians have emphasized the organic unity of the church. Many see in this a reflection of the image developed in several of the Epistles of the New Testament that portrays the church as a body with members having different functions and of which Christ is the head. (See I Cor. 12:12-31; Eph. 4:11-16; Col. 1:18.) One of the best known of these references is Romans 12:4 and 5:
For as in one body we have many members. and all the members do not have the same function, so we, though many are one body in Christ, and individually members one of another.
The earliest architects of presbyterian polity sought to realize organic unity in their church order. They provided for representative governing bodies that relate to one another as follows: The particular church is governed by the session, consisting of the pastor of the church and the ruling elders elected by the people. The several churches in a district are governed by a presbytery, consisting of the ministers in the district and elder commissioners elected by the church sessions. Three or more presbyteries in a region are governed by a synod. And all of the synods, presbyteries, and particular churches are governed by one General Assembly. Synod and General Assembly are each comprised of commissioners, half ordained ministers and half ruling elders, elected by the presbyteries. Once described as “lower” and “higher” judicatories, more recent usage prefers “less inclusive” and “more inclusive.” Whatever designation is used, decisions of the “‘lower” or “less inclusive” judicatory are subject to review and correction by the “higher” ore “more inclusive.” The latter may act upon its own initiative or in response to complaint or appeal. This pattern of church order has been described by the civil courts as a “hierarchy” of judicatories.
This understanding of church order is readily perceived in one of the earliest actions taken by the newly formed General Assembly of the Presbyterian Church, when presbyterians had become sufficiently numerous in the New World to set up such a body:
The radical principles of Presbyterian Church government and discipline are: That the several different congregations of believers, taken collectively. constitute one Church of Christ, called emphatically the Church; that a larger part of the Church, or a representation of it, should govern a smaller, or determine matters of controversy which arise therein; that, in like manner, a representation of the whole should govern and determine in regard to every part and to all the parts united: that is, that a majority shall govern; and consequently that appeals may be carried from lower to higher judicatories, till they be finally decided by the collected wisdom and united voice of the whole Church. For these principles and this procedure, the example of the apostles and the practice of the primitive Church are considered as authority.1
This language is now included in the Constitution of the UPCUSA in Form of Government, Chapter V, Section 1 (35.01).
In 1927, the General Assembly of the Presbyterian Church in the United States of America (PCUSA, now the UPCUSA) adopted the report of the Swearingen Commission in the following words:
The Presbyterian Church is not a unity in the sense that it consists of an undivided oneness without distinguishable parts; neither is it a group of smaller bodies with common history and tradition which find it advantageous to work together in close harmony for the accomplishment of purposes common to all of them. Our Church is an organism. Its unity is not a unity of articulation, part touching part, like the bones of a skeleton, but the unity of life, the parts united by vital bonds, thus constituting a living whole and that whole imparting impulse and strength and order to the several parts, as the body to its members. (Minutes, 1927, Part I, p. 59.)
More recently, the “organic relation of all congregations in the church” maintained by presbyterian polity was affirmed in the Confession of 1967; (The Book. of Confessions, II, A, 2 (9.40).)
While it seems clear to the committee that in the context of Form of Government, Chapter V, Section 1 (35.01), quoted above, the term “majority” refers to a majority in the “highest” or “most inclusive” judicatory to which an issue is taken through administrative review or upon complaint or appeal, this may not be equally evident to all; and its application to issues regarding the possession and use of property may not be apparent to lawyers and judges unfamiliar with presbyterian polity when they are called upon to resolve property disputes. The committee has found that whenever there is a controversy regarding the possession and use of church property, the issues in that dispute are invariably intertwined with issues regarding a doctrinal or other ecclesiastical matter. There is no neat dichotomy between “spiritual” issues on the one hand and “temporal” on the other. Under presbyterian polity, all of these issues must be determined through the decision-making of the “hierarchy” of judicatories. Property matters cannot be determined correctly apart from the resolution of related “ecclesiastical” issues.
Many property matters are decided without controversy. For example, the commitment of the UPCUSA to ecumenism in mission strategy sometimes leads to the formation of union or federated churches that may involve transfer of property. Less often, wise ecumenical strategy suggests that a particular town or area should be served, on behalf of all churches, by one church related solely to one denomination. This may require transfer of property to, or receipt of property from, another denomination. Sometimes through agreement with another denomination, a church is transferred from one to the other. The UPCUSA has in recent years dismissed churches to other denominations and received churches from others.
Whenever the transfer of church property is made without the receipt of adequate financial compensation, the presbytery must obtain the approval of the General Assembly for such transfer. The 176th General Assembly (1964) explained the reasons for this requirement:
The United Presbyterian Church in the United States of America is one Church with synods, presbyteries and congregations as parts thereof. We reaffirm the position that the ownership of all property in The United Presbyterian Church in the United States of America is shared by all of its members, despite the multiplicity of corporations among its parts. Title cannot be transferred without adequate financial compensation except by action of the General Assembly as the judicatory which represents the whole Church. (Minutes, 1964, Part I, p. 271.)
This action clearly expresses the General Assembly’s understanding of the organic unity of the church.
Occasionally members of a particular church may desire to leave the UPCUSA and retain possession and use of the church property. In a few such cases the presbytery may determine that the property is not needed in the mission strategy that it has adopted and permit the members to withdraw with the property, subject to the requirements mentioned above regarding adequate financial compensation.
On the other hand, the presbytery may determine that this property is needed in carrying out its mission strategy. Such a determination is likely if there is a viable minority of members in the church who remain loyal to the UPCUSA and could form the nucleus of a congregation in that place. However, the presbytery may determine that it wishes to retain the property even when there is no such loyal minority. If the presbytery determines to refuse the request of the dissident members wishing to withdraw with the church property, the dissidents may seek review of the decision by the synod and ultimately by the General Assembly.
This was the course followed by the pastors and most of the members of the Community Church of Palm Springs (Presbyterian), Palm Springs, California. The Presbytery of Riverside declined to permit them to withdraw with the church property; the Synod of Southern California sustained the presbytery; and on appeal the General Assembly sustained the synod. The 180th General Assembly (1968) quoted with approval the above action of the 176th General Assembly (1964). (Minutes. 1968, Part I, p. 356.) The General Assembly then stated:
The constitutional provisions for the government of the denomination and of any particular church, as well as the provisions for future amendment of its governmental structure and its doctrinal statements, are accepted by a local church when it decides to become a part of the denomination (as Palm Springs Church did in 1917). It has been settled, by decisions of the civil courts, as well as by frequent actions of the General Assembly, that a particular church holds legal title to its property as trustee for the benefit of the entire denomination. . . .
One of the obligations of this trust relationship is that the trustee (namely, the local church) must use the property for the benefit of the denomination–that is, to serve the interests of the denomination by enhancing the witness of the denomination in that particular locality. The local church, as trustee, has no authority to act contrary to the purposes of the denomination as determined by the denomination as a whole. Presbyteries are given the authority and responsibility to supervise particular congregations to this end by such action as may be appropriate. (Form of Government, Chapter XII, Section 7.)
Furthermore, it is neither legally nor factually accurate to assume (as Complainant apparently does) that the property in question was given by people who intended to limit the use of their property forever to any particular theological emphasis. The property held by Palm Springs Church, like that of most congregations, represents the accumulated stewardship over the years of countless individuals who worshiped there for a time, whether former residents, current residents, or transients. They did not condition their gifts on any specific uses; they simply gave to the church as part of The United Presbyterian Church in the United States of America. The present congregation holds no proxy from former members and past donors; nor, under Presbyterian government, can any individual be considered to have a severable equity in any property of the church. Rather, it all belongs to the total church.
Just as no individual member who decides to withdraw is entitled to take a part of the church property with him [or her], so also the congregation as a whole must respect the fact that the property belongs to and is held for the use of the whole denomination. (Ibid., pp. 357-59.)
In the face of this decision by the highest judicatory of the church, this case was subsequently litigated in the civil courts of California and has been decided adversely to the interests of the UPCUSA on the basis of “neutral principles of law.” Review of that decision will be sought by Petition for Writ of Certiorari filed in the Supreme Court of the United States.
Since the holding of all property is regulated by state law, cases in which the presbytery does not acquiesce in the withdrawal are almost invariably litigated in civil courts. Depending upon the circumstances, the presbytery or its commission, the minority of the membership loyal to the UPCUSA, or the majority who wish to withdraw may take the initiative to bring the case into the civil court.
In the history of civil litigation involving Presbyterian church property in this country, there have been three periods when the number of cases has increased dramatically. One of these followed the Civil War and related to the formation of the PCUS. The second followed reunion of the larger part of the Cumberland Presbyterian Church with the Presbyterian Church in the United States of America (PCUSA) in 1906. The third resulted from the unrest following the Machen controversy, involving disagreements between “fundamentalists” and “modernists,” in the 1920’s and 1930’s.
The most important decision of the period following the Civil War was Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872). That case involved the Walnut Street Church of Louisville, Kentucky, which attempted to withdraw from the PCUSA (now the UPCUSA) and take the church property. The Supreme Court found that the PCUSA, which was governed exactly as the UPCUSA is today, was a “hierarchical church” and held that:
the rule of action which should govern the civil courts. . . is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these [hierarchical] church judicatories to which the matter has been carried, the legal tribunals must accept such decision as final, and as binding on them. . . . (Ibid., at 727.)
The Court said in part:
In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.
Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals. 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. (Ibid., at 728-729.)
This case was recognized as the leading case in church property law for more than a century. It was followed in cases involving other “hierarchical” churches, including the Russian Orthodox Church. Although Watson was decided under “general law,” the Supreme Court later reaffirmed that decision on Constitutional grounds after the protection of the First Amendment had been extended to state actions following adoption of the Fourteenth Amendment. In Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952), the Court said:
Ours is a government which by the ‘law of its being’ allows no statute, state or national, that prohibits the free exercise of religion. There are occasions when civil courts must draw lines between the responsibilities of Church and State for the disposition or use of property. Even in those cases when the property right follows as an incident from decisions of the church custom or law on ecclesiastical issues, the church rule controls. This under our Constitution necessarily follows in order that there may be free exercise of religion. (Ibid., pp. 120-121.)
This principle controlled the cases following the Cumberland reunion in 1906. The most frequently quoted opinion from that period was delivered by District Judge Van Valkenburgh, in Barkley v. Hayes, 208 Fed. 319 (1913). The case was later affirmed by the Court of Appeals, Duvall v. Synod of Kansas, 222 Fed. 669 (1915), and by the Supreme Court of the United States, Shepard v. Barkley, 247 U.S. 1 (1918). The district judge wrote:
Therefore, when the property held by a church is that purchased or conveyed for the general use of the religious congregation, not devoted forever by the instrument which conveyed it nor by any specific declaration of its owner to the support of any special religious dogmas, or any peculiar form of worship, it is and remains the property of the general church which exercises such general and ultimate power of control. It does not belong to the particular congregation which uses it, much less to the individual members of such congregation. It does not belong to the presbytery or the synod, nor in a strict sense, to the general assembly. It belongs to the church which is composed of its entire membership; that membership being governed and controlled by the organic law of the church, the administration of which is lodged in certain judicatories rising, in regular succession, to the general assembly or court of last resort, embracing in itself legislative, administrative, and judicial powers. The government of the Presbyterian Church is republican and representative in character. Its administration is vested not in the individual members, not in the congregations, but in the general assembly and the presbyteries; and the church as a whole, acting through its supreme governing bodies, exercises the ultimate rights of ownership and control over all of its properties. . . .
The Constitution of the United States and of the several states guarantees to the individual absolute independence of religious belief and worship. He need associate himself with no religious organization if he does not wish to do so, and he need remain identified with one no longer than he may desire; but when he does unite with a church, and becomes a member of that ecclesiastical body, he voluntarily surrenders his individual freedom to that extent. . . he has no personal or property rights which the civil courts can or should protect. Any other view would be entirely subversive of the very theory of organization. The church would be dissolved into a mere aggregation of individual views and theories. (Ibid., pp. 322-23.)
The unrest occasioned by the theological conflict between the “fundamentalists” and the “modernists” in the 1920’s and 1930’s issued in a number of property disputes. Perhaps in anticipation of these cases, the General Council of the General Assembly proposed in 1929 that the section of the Constitution requiring “each particular church” to form and maintain “a corporation . . . to receive, hold, and transfer property. . .” be amended by the addition of the following sentence:
The charter or articles of incorporation shall declare that its property is held in trust under the Constitution of and for The Presbyterian Church in the United States of America. (Minutes, 1929, Part I, p. 153.)
The General Assembly voted to send this overture to the presbyteries for their votes but the proposal failed in that arena. Although the larger number of the presbyteries voting favored the overture, their number did not constitute the majority of all the presbyteries required to amend the Constitution since a sizable number failed to vote. (Minutes, 1930, Part I, pp. 54 and 55.)
While we have no record of the reasons given by those who opposed this overture, doubtless the argument was made that the numerous decisions of the civil courts favorable to the general church made it unnecessary. This view was surely born out in the litigation that followed in the decade of the 1930’s. Moreover, the opponents may well have argued that adoption of such an amendment could be held to have only prospective effect and might even cast doubt on the existence of the “implied trust” prior to its enactment.
In any event the UPCUSA continued to rely upon the “implied trust” in all church property for the benefit of the whole church. The principles stated in Watson and reaffirmed in Kedroff seemed settled.
Then just a decade ago, the Supreme Court of the United States, in its opinion in Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, suggested that:
. . . there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which property is awarded. (393 U.S. 440, 449 (1969).)
The implications of this dictum were not fully apparent, although the case prompted widespread comment.
The Permanent Committee on Conservation of Property as then constituted had followed this case in the courts of the State of Georgia, and on recommendation of the committee, the General Assembly in 1968 had taken action to:
1. Affirm its continued adherence to the principle that all property owned by a local church of The United Presbyterian Church in the United States of America, whether used in programs of the local church or of a higher judicatory, or held for investment, is held in trust for The United Presbyterian Church in the United States of America.
2. Authorize and direct the Stated Clerk of the General Assembly and its other officers to continue to support any presbytery which determines to resist efforts by a local congregation attempting to withdraw from The United Presbyterian Church in the United States of America and to take church-owned property with it.
3. Recognize that such support of a presbytery may include the following actions by the Stated Clerk of the General Assembly: provide advice and counsel to the presbytery either personally, or by the solicitor of the General Assembly; appearance in legal proceedings on behalf of the General Assembly either as Amicus Curiae or otherwise; provide monetary support of the presbytery in the expenses incurred in connection with such legal proceedings on a basis to be negotiated in each case, but accepting as a general guide the participation by the Office of the General Assembly in an amount up to 50 percent of such expenses. (Minutes, 1968, Part I, p. 635.)
The Stated Clerk reported the Supreme Court’s decision in the Hull case to the General Assembly in 1969. (Minutes, 1969, Part I, p. 981.) Later that Court denied certiorari when on remand the Supreme Court of Georgia awarded the church property to the dissidents on the basis of “neutral principles of law.” The Stated Clerk then observed: “Further litigation will probably be required to clarify the law regarding church property.” (Minutes, 1970, Part I, p. 100.)
That further litigation has now culminated in Jones v. Wolf with its unsettling effect. Following its holding that adherence to the Watson rule is not required for a State to comply with the guarantees of the First Amendment, any State may now adopt the “neutral principles of law” approach with impunity. We cannot predict which States will do so; but we can state that wherever such a policy is followed, church property of most UPCUSA churches will be in jeopardy because the deeds, charters, and state laws in most places, and the constitution of the UPCUSA do not state explicitly the trust for the benefit of the whole church.
What should the UPCUSA do?
Options
The committee has considered several alternative courses of action that the UPCUSA might choose to follow.
First, the church might determine that in the future it would permit any particular church that wishes to withdraw and retain the possession and use of the church property to do so. This is the practice of the churches with congregational polity. Such a policy would negate the Presbyterian concept of the organic unity of the church, at least in decisions regarding church property. The committee does not recommend it.
Second, the church might determine that it would litigate cases as they arise, thus clarifying the laws of the several States of the Union. Then in any States in which the cases are decided adversely to the church, efforts could be made to secure modification of deeds, charters of particular churches, of statutes of those States to define explicitly the trust in all church property on behalf of the whole church. This course of action would be time-consuming and very costly in legal fees likely to be incurred and in property likely to be lost in trying out the developing legal concepts of the several States. Moreover the ultimate success of this method of clarifying the rights of the whole church would depend upon the political processes in a number of States in which the outcome is by no means assured. The committee does not recommend this approach.
Third, the church might seek to amend the Constitution of the UPCUSA to state clearly what has been implied previously–that all church property is held in trust for the whole church. The Supreme Court of the United States identified this possibility in the following sentences:
. . . 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. . . . [T]he 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. (Jones v. Wolf, published in 61 L. Ed. 2d 775, 99S. Ct. 3020 (1979.)
The committee has chosen to propose that the church follow this alternative.
After thorough deliberation, the committee agreed to recommend that the Constitution of The United Presbyterian Church in the United States of America should be amended as expeditiously as possible.
Recommendations
The committee has devoted major attention to the provisions of the amendment to the Constitution that it now proposes. The committee’s comments will precede the text of the amendment.
The committee has elected to add a new chapter to the Form of Government, “Chapter XLII, Of Property.” It is suggested that this chapter be placed at the end of the present Form of Government to make clear that this addition is prompted by, and in reliance upon, the decision of the Supreme Court of the United States in Jones v. Wolf. Moreover, this placement will obviate the renumbering of later chapters that would have been necessary had it been inserted earlier. Such renumbering should be avoided whenever possible to minimize confusion in references to successive editions of the Constitution.
The introductory paragraph is intended to make clear that this chapter does not state new policies but is simply “declaratory” of principles long held and followed.
The first section states unequivocally that decisions about property, like all doctrinal and ecclesiastical decisions, are to be made by judicatories of the church in accordance with other provisions of the Constitution of the church. The UPCUSA does not distinguish between matters of faith on the one hand and temporal matters on the other. All are essentially ecclesiastical and are determined in exactly the same way.
The second section states explicitly the principle that all church property is held in trust for the whole church.. This is intended to reduce to writing, in the Constitution, the trust that has heretofore been implied.
The third section makes clear that a particular church may forfeit its privilege of possession and use of the church property by utilizing it in some manner not in accordance with the UPCUSA Constitution.
The fourth and fifth sections incorporate into this Chapter Sections 11 and 12 of the present Chapter XXXII of the Form of Government. (62.11, 62.12.) The sections are unchanged except for two omissions from the present Section 11. That section now reads as follows:
Whenever [hereafter] a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have [, both real and personal,] shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct in conformity with the Constitution of The United Presbyterian Church in the United States or America.
The words which we have omitted are indicated by square brackets [ ] .
The word “hereafter” is omitted lest the reader be confused and think that this chapter and this section in particular are intended to have only prospective effect. The words “both real and personal” are omitted because the word “property” as used throughout the chapter is intended to include both real and personal property.
The committee accordingly makes the following recommendation to the 192nd General Assembly (1980):
Whereas we, as members of The United Presbyterian Church in the United States of America, have confessed that:
A. God binds us together as a people and has called us to be his children through faith in Jesus Christ and in a community of faith which is the church;
B. The church is the body of Jesus Christ and is one and the same in all ages;
C. The church is divided into particular churches organized by presbyteries; and
D. We, as members of particular churches, covenant and agree to work together in a church relationship according to the provisions of a Constitution which connects us to each other in a Presbyterian system of authority and discipline and which regulates the use and disposition of the property of particular churches; and
Whereas we believe that property of our particular churches is held by them as stewards for The United Presbyterian Church in the United States of America; and
Whereas the United States Supreme Court on July 2, 1979, indicated that, in its opinion, where property is held by a particular church for the denominational church, such should be expressly stated in the constitution of the denominational church;
Now therefore be it resolved that the Stated Clerk be directed to send the following overture to the presbyteries for their affirmative or negative replies:
Overture A
Shall the Form of Government be amended by adding Chapter XLII, “Of Property,” Sections 1-5 (72.00-.05), as follows:
“This chapter is declaratory of principles to which The United Presbyterian Church in the United States of America and its antecedent church bodies have adhered from the inception of the Presbyterian form of church government.
“1. The provisions of Form of Government, Chapter V, Section 1, and other provisions of this Constitution prescribing the manner in which decisions are made, reviewed, and corrected within this church are applicable to all matters pertaining to property.
“2. All property held by or for a particular church, a presbytery, a synod, the General Assembly, or The United Presbyterian Church in the United States of America, whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of the particular church or of a more inclusive judicatory or retained for the production of income, is held in trust nevertheless for the use and benefit of The United Presbyterian Church in the United States of America.
“3. Whenever property of, or held for, a particular church of The United Presbyterian Church in the United States of America ceases to be used by that church as a particular church of The United Presbyterian Church in the United States of America in accordance with this Constitution, such property shall be held, used, applied, transferred, or sold as provided by the presbytery.
“4. Whenever. . . a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have. . . shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of The United Presbyterian Church in the United States of America.
“5. A particular church shall not sell, mortgage, or otherwise encumber any of its real property and it shall not acquire real property subject to an encumbrance or condition without the written permission of the presbytery transmitted through the session of the particular church.
“A particular church shall not lease its real property used for purposes of worship, or lease …
The rest is available to read online here: http://descant.classicalanglican.net/index.php?s=Alice+C.+Linsley
August 3, 2007 at 6:56 pm
I am not a lwayer but I would say Article VII would not break the trust. While the coporation does not have members it can certain have property. The property is all the national church is laying claim to. The members of the church are free to do as they please.
August 3, 2007 at 7:01 pm
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August 4, 2007 at 9:28 am
Is it unusual for not-for-profit corporations to not have “members” yet hold assets in trust?
Haven’t even begun to read it but doesn’t it say right up front that the Trustees of the General Assembly of the PCUSA are the corporation as the corporate agency for the GA of the PCUSA? So we have trustees of a trust rather than members? Is there a not-for-profit lawyer in the house?