Author(s): L. Martin Nussbaum
Published: 10/30/2009
On August 19, 2009, the Churchwide Assembly of the Evangelical Lutheran Church of America (ELCA) voted 667 to 303, exactly the two-thirds majority required, to approve its Social Statement on Human Sexuality. The Statement emphasized the freedom of the human conscience and noted that groups within the ELCA held a number of differing "conscience-bound" beliefs regarding same sex unions. Before approving this statement, the Churchwide Assembly rejected an amendment that said, "The practice of homosexual erotic behavior [is] contrary to God's intent." Goodsoil, a Lutheran group working for GLBT inclusion in the ministry and sacramental life of the ELCA, called the statement, "Tolerant of our differences both in scriptural interpretation and practice." It added, "The door to full inclusion of GLBT members and their families is now most definitely open." The traditionalist Coalition for Reform expressed its disappointment: "We mourn the decision by the Churchwide Assembly to reject the clear teaching of the Bible that God's intention for marriage is the relationship of one man and one woman."
Immediately thereafter, some traditionalists vowed to stay with the ELCA and work for its reform. Others planned their departures. Regardless of the denomination, when the local leaders and a majority of the local members secede, there are a host of issues to resolve. Should the majority faction retain the historic name of the local church? Should it try to control the local church corporation? Should it continue to use the local church's employer identification number? Its Web site? Its bank accounts? Its relationship with those providing employee benefits? Its church buildings and parsonage? Should the loyalist minority fight to keep the local church's intellectual, financial, and real property? Should the denomination? Who are the lawful leaders of the local church when a split occurs? Are they those favored by the secessionists or those favored by the loyalists? If warring Christians cannot resolve such issues among themselves, can they take their dispute to the civil courts in violation of Paul's admonition in 1 Corinthians 6:1-7: "How dare one of your members take up a complaint against another in the law courts of the unjust instead of before the saints ..."
While the pain is fresh among the Lutheran faithful, schism and secession are, sadly, not a new phenomenon among faith communities. Just one month earlier, the General Convention of the Episcopal Church made clear that the November 2003 consecration of Gene Robinson was not an anomaly. It resolved, first, that all ministry positions should be open to gay and lesbian individuals, even when in same sex unions, and, second, that individual dioceses had the option to develop rites for the blessing of same sex unions. Before the contemporary disputes over homosexuality, Christians have divided over the circumcision and dietary requirements, Jesus' nature, the Trinity, the liturgical calendar, faith and works, Biblical interpretation, divorce, plural marriage, slavery, papal infallibility, the revision of liturgical texts, syncretism, the ordination of women, and other doctrinal disputes.
In the United States, these disputes have spilled over to the civil courts when one faction seeks declaratory relief as to which faction owns the property and which faction's leaders lawfully hold ecclesiastical office. Eight such cases became United States Supreme Court precedents. Three of those—Watson v. Jones (1871), Presbyterian Church v. Blue Hull Memorial Presbyterian Church (1969), and Jones v. Wolf (1979)—involve the Presbyterian denomination. Three—Kedroff v. St. Nicolas Cathedral (1952), Kreshik v. St. Nicholas Cathedral (1960), and Serbian Eastern Orthodox v. Milivojevich (1976)—involve Russian or Serbian Orthodox denominations. Of the remaining two, Bouldin v. Alexander (1872) involves an African American Baptist Church governed by a congregationally-elected board of trustees, and Maryland and Virginia Eldership v. Church of God (1979) also involves a church governed by a board of trustees. These eight cases provide the jurisprudential trunk for various doctrines defining the freedom of religious institutions. From these cases, three primary rules emerge:
- In deference approach states, civil courts decide church split property disputes by deferring to the decision made by the church hierarchy.
- In neutral principles approach states, civil courts decide church split property disputes on the basis of the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property.
- When a civil court uses the neutral principles approach to decide a property dispute case and its analysis leads the court to become entangled in matters of religious doctrine or practice, or when the dispute primarily focuses on which faction's leaders lawfully hold ecclesiastical office, the court must defer to the decision made by the church hierarchy.
RJ&L Religious Institution attorneys have just resolved four church split cases using four markedly different approaches, each of which successfully vindicated the particular faith community's freedom to govern itself in accordance with its own law. They provide object lessons regarding the tactical choices these cases present.
St. John's Baptist Church and the Peacemaking Model
St. John's Baptist Church is an historic congregation in Colorado Springs. It is affiliated with the National Baptist Church. After the retirement of Pastor Milton Proby, who had led the congregation for forty-eight years, the congregation selected a forty-three year old preacher from Chicago, Rev. Willie Sutton, to lead the congregation. Seven long-time members of the congregation had concerns about the new pastor, expressed those concerns aggressively, and were eventually removed from church membership. They filed suit asking the District Court to order the elder board to conduct a new election to select a senior pastor. Such a claim is almost certainly barred by the third rule above and the Serbian case. The parties resolved this case after RJ&L counsel for the Church and the attorney for the long-time members visited face-to-face, listened to their clients' respective concerns, identified common ground between the two sides, and agreed that this was an intra-church dispute that ought not to involve a civil court. The parties thereafter filed a stipulated motion to dismiss the lawsuit with prejudice.
First Apostolic Assembly of Faith in Christ Jesus and the Self-Help Model
The Apostolic Assembly of Faith in Christ Jesus is a Spanish-speaking oneness Pentecostal denomination. When its church in Thornton, Colorado, split, the denominational loyalists decided that they wanted to retain possession of the building during any dispute with the secessionist majority. With Colorado adopting the neutral principles methodology, the Apostolic Assembly engaged RJ&L Religious Institution attorneys to review the local church organizing documents, deeds, and national church law that are relevant under that methodology. RJ&L attorneys and the loyalists then informed the local police that the secessionists were trespassing on the property and that they intended on a specific date to retake the property. On the predetermined date, the loyalists, accompanied by RJ&L attorney Ed Schroeder and a locksmith, went to the property. When a secessionist saw what was happening, she called the police and Mr. Schroeder, with legal documents in hand, explained in the church parking lot the basis for the loyalists' right to the property. When the officer was convinced, he assisted with the loyalists in retaking the property. The secessionist faction did not file suit.
Grace and St. Stephen's Episcopal Church and the Civil Trial Model
Grace and St. Stephen's Episcopal Church is an Episcopal parish in Colorado Springs founded in the 1870s. The property it holds includes an irreplaceable Gothic structure, a garden columbarium, a school, an historic residence serving as the parish offices, a choir house, a rectory, bank accounts, and the beneficial interest in eight charitable trusts.
In 1987, the parish engaged Rev. Donald Armstrong to serve as rector. Father Armstrong was a vocal critic of the Episcopal Church. His criticism elevated after the November 2003 consecration of Gene Robinson to serve as Bishop of New Hampshire.
In March 2006, the Diocese of Colorado, having received a report of financial irregularities from a Grace and St. Stephen's bookkeeper, hired a forensic accountant to review the parish financial records. She submitted her report in December 2006, preliminarily concluding that Father Armstrong had acquired over $500,000 of parish funds and that the parish failed to report most of these payments to the Internal Revenue Service (IRS) on the W-2's it issued. Bishop Robert O'Neill promptly inhibited Father Armstrong and thereby ordered him to cease contact with the parish and to cease functioning as a priest, pending further investigation and an ecclesiastical trial.
Three months later, after the completion of a second formal Diocesan investigation, the Diocesan Review Committee issued a presentment that functioned as an ecclesiastical indictment. On this same day, Father Armstrong and nine of the ten vestry members voted to amend the parish's bylaws, seeking to free themselves from Episcopal Church canon law. They also voted to leave the Episcopal Church, and their secessionist congregation promptly attached to the American branch of the Anglican Church of Nigeria. The secessionist congregation took control of all the property held by the Episcopal parish, including its real estate, its financial accounts, its name, its Web site, its corporation, and its employer identification number.
On Good Friday, just after 3:00 p.m., the secessionist congregation filed suit in the name of the Episcopal parish corporation, Grace Church and St. Stephen's, against the Diocese of Colorado. The Episcopal parish and its corporation, Grace Church and St. Stephen's intervened in the case, leading to the confusing situation in all briefing and argument in which attorneys for opposing sides each claimed to represent a parish corporation with the same name. Midway through the case, the secessionist group contended that their parish corporation had an "ampersand" in its name instead of the word "and." This lawsuit concluded with a four and a half week trial in February and March 2009, the longest church trial in Colorado history.
This litigation was extraordinary in several respects. It proceeded against a backdrop of an ongoing police investigation related to Father Armstrong's alleged pre-secession conversion of parish funds; the recusal of the District Attorney, John Newsome, from any involvement due to his alignment with Father Armstrong; the appointment of a special prosecutor; and the convening of a grand jury. The investigation included the largest execution of a search warrant in the history of the Colorado Springs Police Department— over fifteen law enforcement officials searching the church, the school, the parish offices, the rectory, and computers at those locations and one officer assigned to inventory the firearms Father Armstrong carried on his person, in his Jeep, and in his home. On May 20, 2009, the El Paso County Grand Jury issued a twenty felony count indictment against Father Armstrong. The criminal trial will likely be scheduled to proceed in the first half of 2010.
Notwithstanding, seven published state supreme court rulings in favor of the Episcopal Church in similar cases—including the 1986 Colorado Supreme Court decision called Bishop and Diocese of Colorado v. Mote—the trial judge declined to rule on the heavily briefed motion for summary judgment filed in the case. Later, the judge denied motions for partial summary judgment and thereby declined to trim down the issues left to trial. Over the objection of RJ&L counsel, Martin Nussbaum and Eric Hall, the trial court permitted the secessionists to certify one its lawyers as an expert to testify on legal issues related to corporation, property, trust, adverse possession, and First Amendment law. In response, the Episcopal Church side certified two rebuttal legal experts. The result, at trial, involved lawyers examining fellow lawyers for days. There were also canonist experts testifying about church law and historians testifying about over 200 years of Episcopal Church and 135 years of Diocesan and parish history. Day after day, the courtroom was heavily attended by former members of the same parish, now split with the Episcopal Church faction seated on one side of the courtroom and the secessionist faction seated on the other.
After hearing exhaustive testimony and closing arguments and after reviewing findings of fact and conclusions of law, the trial judge found for the Episcopal parish and the Episcopal Church on every material issue argued by Martin Nussbaum and Eric Hall. He ruled that Father Armstrong's key testimony regarding statements attributed to a deceased senior warden was not credible. He ruled that the facts "were not substantially different from the history" in the Mote case and that the "history of Grace Church and St. Stephen's is consistent with . . . the canons that all parish property was held in trust for the benefit of the Diocese and the general church."
Brotherhood of the White Temple and the Notice of Dismissal Model
The Brotherhood of the White Temple is a small international religion headquartered near Sedalia, Colorado. Its teachings are in the metaphysical tradition and draw upon Western and Eastern religions. It is governed by a three person executive board. In 2008, a faction of the Brotherhood filed suit in the name of the Brotherhood asking the court to declare the incumbent members of the executive board usurpers.
Rule 41(b) is a seldom used rule in the Rules of Civil Procedure. It permits a plaintiff to dismiss his suit by simply filing a notice of dismissal so long as he does so before the defendant has responded to the complaint. RJ&L attorneys, Martin Nussbaum and Adam Weitzel, used this procedure to dismiss the lawsuit.
This led to a hearing in which opposing counsel each introduced themselves as representing the Brotherhood that had been named as the plaintiff and required the court to promptly determine whether the incumbent office holders or the faction filing suit had authority to engage counsel to file legal papers on behalf of the Brotherhood. After a prompt evidentiary hearing, the court ruled for the incumbents represented by RJ&L counsel and later assessed legal fees against the law firm initiating suit.
A partner practicing in RJ&L's Colorado Springs office, L. Martin Nussbaum serves as co-chair of the RJ&L Religious Institutions Group and as general counsel and advocate for numerous churches and religious organizations in a variety of legal matters, including risk management, ministerial misconduct, corporate, tax, property, tax-exempt financing, licensing, employment, First Amendment rights, and related litigation. He can be reached at 719-386-3004 or by email at mnussbaum@rothgerber.com.