Amicus Curiae Brief — Primate & Bishops' Synod of the Russian Orthodox Church Outside of Russia v. Russian Orthodox Church of the Holy Resurrection, Inc.

\

No. 94-966 ~ 7

MOTION FILED

pec 13 994.

In The

Supreme Court of the United States

October Term, 1994

°

THE PRIMATE AND BISHOPS’ SYNOD OF THE

RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA,

Petitioner,

THE RUSSIAN ORTHODOX CHURCH OF THE

HOLY RESURRECTION, et al.,

Respondents.

t

On Petition For A Writ Of Certiorari

To The Supreme Judicial Court Of Massachusetts

*

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE AND BRIEF AMICI CURIAE OF JAMES

ANDREWS AS STATED CLERK OF THE GENERAL

ASSEMBLY OF THE PRESBYTERIAN CHURCH

(U.S.A.), ORTHODOX CHURCH IN AMERICA,

NATIONAL COUNCIL OF CHURCHES OF CHRIST

IN THE U.S.A., GREEK ORTHODOX ARCHDIOCESE

OF NORTH AND SOUTH AMERICA, ANTIOCHIAN

ORTHODOX CHRISTIAN ARCHDIOCESE OF

NORTH AMERICA, GENERAL CONFERENCE OF

SEVENTH-DAY ADVENTISTS, AND CHRISTIAN

LEGAL SOCIETY IN SUPPORT OF THE

PETITION FOR CERTIORARI

¢

STEVEN T. McFARLAND* THomas C. BERG

SAMUEL B. CASEY Robinson Hall Room 309

Center for Law and 800 Lakeshore Drive

Religious Freedom Birmingham, AL

Christian Legal Society 35229-7021

4208 Evergreen Lane, (205) 870-2415

Suite 222

Annandale, VA 22003-3264

(703) 642-1070

*Counsel] of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

<_

No. 94-966

*

In The

Supreme Court of the United States

October Term, 1994

%

THE PRIMATE AND BISHOPS’ SYNOD OF THE

RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA,

Petitioner,

THE RUSSIAN ORTHODOX CHURCH OF THE

HOLY RESURRECTION, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The Supreme Judicial Court Of Massachusetts

+

MOTION OF PRESBYTERIAN CHURCH (U.S.A.)

ET AL. FOR LEAVE TO FILE

A BRIEF AMICI CURIAE

é

The Presbyterian Church (U.S.A.), the Protestant

Episcopal Church in the United States of America and

other churches have been losing parishes to breakaway

congregations because of the refusal by lower courts to

enforce the denomination’s right to retain local church

property. This has come about because of this Court’s

decision fifteen years ago that courts could use “neutral

principles of law” to decide ecclesiastical disputes over

ownership of church property. But those principles have

proved in many instances to be “neutral” in favor of

1

congregationalizing hierarchical polities, contrary to the

church’s own self-definition.

Repeatedly, lower courts have construed clear and

express provisions in church law prohibiting the aliena-

tion of church property without the consent of hierarchi-

cal authorities as being mere moral and spiritual

guidance without legal force or effect on temporal control

of property. The instant case is just such an example of

judicial disregard of explicit church law and provides this

Court an opportunity to clarify and correct the lower

courts’ (mis)understanding of the right of hierarchical

churches to control their subordinate entities in property

as in all other matters.

Pursuant to Rule 37 of this Court, amici curiae James

Andrews as Stated Clerk of the General Assembly of the

Presbyterian Church (U.S.A.), Orthodox Church in Amer-

ica, National Council of Churches of Christ in the U.S.A.,

Greek Orthodox Archdiocese of North and South Amer-

ica, Antiochian Orthodox Christian Archdiocese of North

America, General Conference of Seventh-day Adventists,

and Christian Legal Society move for leave to file the

attached brief amici curiae.

Petitioner the Primate and Bishops’ Synod of the

Russian Orthodox Church Outside of Russia consented to

the filing of this brief amici curiae, but respondents the

Russian Orthodox Church of the Holy Resurrection, et al.,

Dale Harger, Counsel, refused to consent. Petitioner’s

letter of consent has been lodged with the Court.

Because of their victimization in church property dis-

putes and because of their long involvement in issues of

religious liberty, these amici curiae are able to provide the

chet er

te ee

Court a unique and seasoned perspective on how the

courts in a number of states have trampled on amici’s

protected autonomy over church governance. Amici have

not merely repeated the arguments made in the petition,

but rather have explained their church polity and how

the present state of the law fosters unwarranted govern-

ment intrusion upon church autonomy, as this case and

too many others demonstrate.

Respectfully submitted,

STEVEN T. McFARLAND

Counsel of Record

for Amici Curiae

SAMUEL B. Casey

THOMAS C. BERG

TABLE OF CONTENTS

Page

py) As lea ts er er errr ere ii

INTEREoto OF AMGICE CURIAE. 2... cisiccdsdccticss 1

FEAR ek 5:5 daa REE Redes eee 3

A. The Decision Below And Decisions Like It

Seriously Burden Religious Freedom By Inter-

fering With Doctrinally-Based Decisions Con-

cerning Church Structure And Governance... 5

B. The Lower Courts Are In Confusion As To

How To Resolve Church Property Disputes

Within Hierarchically Organized Religious

NG oo kia GUS se Pike cieabn pmb ongh cae eearee 10

C. The Decision In This Case Exemplifies The

Means By Which Courts Have Overridden The

Structure Of Hierarchical Religious Bodies In

Violation Of This Court’s Directions ......... 12

1. Ignoring the Church’s Organic Documents.. 14

2. Misreading of Evidence Concerning

WE OE AS ks hed bo riee 18

ee FE 8 ener: PE See re ri re rer ee 20

Mei i eas App. 1

ii

TABLE OF AUTHORiTIES

Page

Cases: }

Babcock Memorial Presbyterian Church v. Presbytery

of Baltimore, 296 Md. 573, 464 A.2d 1008 (1983) .... 17

Bishop and Diocese of Colorado v. Mote, 716 P.2d 85

ND. SUE sc Siok baeddeceesees 0s oa ekerebtes oukes 17 '

Bjorkman v. Protestant Episcopal Church, 759 S.W.2d

errs reer cre rs corer ry 14, 16, 19

Bose Corp. v. Consumer’s Union, 466 U.S. 485 (1984) .... 13

Calvary Presbyterian Church v. Presbytery of Lake

Huron, 148 Mich. App. 105, 384 N.W.2d 92

(Serene he ey em mr ry ets yer 16, 19

Draskovich v. Pasalich, 151 Ind. App. 397, 280

SE SF COE Rv nw aden ha 60 5400 hoeds owe eene BOs 15

Employment Division v. Smith, 494 U.S. 872 (1990) ..... 6

Jimmy Swaggart Ministries v. Board of Equalization,

Se We TE CADE 65's 05S rahees Cc ¥acanenes hs ea eye 10

jones 0. Walt, 443 US. SOS (2979)... 0c csceneeccss passim

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952)..... 6

New York Times v. Sullivan, 376 U.S. 254 (1964)...... 14

Presbyterian Church v. Hull Church, 393 U.S. 440

SUES 6.60.64 basa 640506 s kee ORR Teen eds 10

Presbytery of Beaver-Butler v. Middlesex Presbyterian

Church, 507 Pa. 255, 489 A.2d 1317, cert. denied,

Se Ge DU. CRD 6 ne sixne cuneecnervoabtacauss. 15, 17

NMA Ne IOP eG SA OTR ae

Presbytery of Elijah Parish Lovejoy v. Jaeggi, 682

ee Ge CRU. SUN oon vic cdsseccquaaewiesbaces 17

iat aceaaaeetiniiiiiaiiaiaialiiiiiiaiaiiiiiiAilil

ili

TABLE OF AUTHORITIES - Continued

Page

Protestant Episcopal Church v. Graves, 83 N.J. 572,

ee Bi eee res a ee eee es ores 17

Rector, Wardens, and Vestrymen v. Episcopal Church,

224 Conn. 797, 620 A.2d 1280 (1993).............. 17

Tea v. Protestant Episcopal Church, 96 Nev. 399, 610

PE; Se ES on 6k ta end ot oaks bh ees Van 15

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871) ......... 3

York v. First Presbyterian Church of Anna, 130 Ill.

App. 3d 611, 474 N.E.2d 716 (1984)............... 17

RULEs:

ee a en eae 5, 10

es de, SU hee 0 4.44904 VES dean ida Knees 14, 16

OTHER AUTHORITIES:

Book of Common Prayer (1979) ..............ceeeeeee 8

Calvin, John, Institutes of the Christian Religion (H.

i ery on ere 9, 10

Constitution and Canons for the Government of the

Protestant Episcopal Church in the USA (1985)....... 7

Constitution of the Presbyterian Church (U.S.A.) -

Part if: Back of Criler C2996)... ccc vevcucces 8, 10, 17

Dublin Agreed Statement of 1984, quoted in On Being

a Bishop: Papers on Episcopacy from the Moscow

Consultation (R. Wright ed. 1993)................... 7

iv

TABLE OF AUTHORITIES —- Continued

195th General Assembly of the Presbyterian

Church in the United States of America, Historic

Principles, Conscience, and Church Government

(1983), quoted in McCarthy, The Emerging Impor-

tance of Presbyterian Polity, in The Organizational

Revolution: Presbyterians and American Denomina-

tionalism (M. Coalter, J. Mulder & L. Weeks eds.

LESTE PERN ES SO

Ross, William G., The Need for An Exclusive and

Uniform Application of “Neutral Principles” in the

Adjudication of Church Property Disputes, 32 St.

Rain S242. FOS CAGRE s ds i's banc gh ehid iceiws

St. Ignatius, Smyrna, reprinted in On Being a Bishop:

Papers on Episcopacy from the Moscow Consulta-

Chess CH. VCMT OG. TITS ois cd vce cians aweeirarscess

Westminster Assembly Directory for Church Govern-

ment, reprinted in Paradigms in Polity: Classical

Readings in Reformed and Presbyterian Church

Government (D. Hall & J. Hall eds. 1994)......

Yearbook of American and Canadian Churches (1994)

Page

se erm + SEEDERS

No. 94-966

¢

In The

Supreme Court of the United States

October Term, 1994

a

THE PRIMATE AND BISHOPS’ SYNOD OF THE

RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA,

Petitioner,

THE RUSSIAN ORTHODOX CHURCH OF THE

HOLY RESURRECTION, et al.,

Respondents.

>

On Petition For A Writ Of Certiorari

To The Supreme Judicial Court Of Massachusetts

.

BRIEF AMICI CURIAE OF JAMES ANDREWS AS

STATED CLERK OF THE GENERAL ASSEMBLY OF

THE PRESBYTERIAN CHURCH (U.S.A.),

ORTHODOX CHURCH IN AMERICA, NATIONAL

COUNCIL OF CHURCHES OF CHRIST IN THE

U.S.A., GREEK ORTHODOX ARCHDIOCESE OF

NORTH AND SOUTH AMERICA, ANTIOCHIAN

ORTHODOX CHRISTIAN ARCHDIOCESE OF

NORTH AMERICA, GENERAL CONFERENCE OF

SEVENTH-DAY ADVENTISTS, AND CHRISTIAN

LEGAL SOCIETY IN SUPPORT OF THE

PETITION FOR CERTICRARI

¢

INTERESTS OF AMICI CURIAE

The Presbyterian Church (U.S.A.), the Protestant

Episcopal Church in the United States of America and

other churches have been losing parishes to breakaway

1

2

congregations because of the refusal by lower courts to

enforce the denomination’s right to retain local church

property. This has come about because of this Court's

decision fifteen years ago that courts could use “neutral

principles of law” to decide ecclesiastical disputes over

ownership of church property. But those principles have

proved in many instances to be “neutral” in favor of

congregationalizing hierarchical polities, contrary to the

church’s own self-definition.

Repeatedly, lower courts have construed clear and

express provisions in church law prohibiting the aliena-

tion of church property without the consent of hierarchi-

cal authorities as being mere moral and spiritual

guidance without legal force or effect on temporal control

of property. The instant case is just such an example of

judicial disregard of explicit church law and provides this

Court an opportunity to clarify and correct the lower

courts’ (mis)understanding of the right of hierarchical

churches to control their subordinate entities in property

as in all other matters.

The amici curiae joining this brief are religious

denominations and organizations committed to the prin-

ciples of religious liberty and governmental non-interfer-

ence in religious affairs.1 Because of that commitment,

each of the amici is deeply disturbed by the judgment of

the Massachusetts state courts in this case, under which a

historically hierarchical church has been transformed into

a congregationally controlled organization with respect to

church property, in violation of both the traditions and

governing documents of the larger church and of the

particular parish.

1 The precise interest of each amicus is set forth in the

Appendix to this brief.

ee

3

Amici include religious denominations that are struc-

tured in a hierarchical manner similar to that of petitioner

and that have been ravaged by courts below due to the

lack of clear direction from this Court in this area. Amici

also include a civil rights organization dedicated to the

advocacy of strong protection for the first of our civil

liberties, religious freedom. The amici are thus in a posi-

tion to suggest to this Court a significant point that

appears to have escaped the attention of the Massa-

chusetts courts: theological convictions have a direct and

powerful bearing on the structures and forms of eccle-

siastical governance. Notwithstanding the important dif-

ferences among the amici - indeed, precisely because of

these significant theological differences - all of the amici

have a strong interest in keeping the government out of

affairs that are beyond its jurisdiction and literally none

of its business.

ARGUMENT

This case vividly exemplifies a disturbing trend

among state courts that are deciding disputes over church

property in the light of the Religion Clause of the First

Amendment. The problem concerns religious bodies that

are organized along “hierarchical” lines, that is, where

the local religious congregation “is but a subordinate

member of some general church organization in which

there are superior ecclesiastical tribunals with a general

and ultimate power of control.” Watson v. Jones, 80 U.S.

(13 Wall.) 679, 722 (1871). As-the Petition for Certiorari

details, such hierarchically organized religious bodies

have been unable to rely on the courts to provide consis-

tent enforcement of their chosen structures. State courts

have issued conflicting decisions as to whether the prop-

erty belongs to the national church or to a breakaway

local congregation, and far too often they have awarded

4

the property to the breakaway congregation in violation

of the governance structure and arrangements of the

church.

As set forth below and in the Petition, the inconsis-

tency has arisen partly because courts adhere to two

different approaches to resolve intra-church property dis-

putes: the “polity” approach, under which the court iden-

tifies whether the religious body is hierarchically or

congregationally organized and then defers to the deci-

sion of the authoritative body under each of those struc-

tures; and the “neutral principles” approach, under

which the court applies principles of trust, property, or

other law to the deeds, church documents, and other

relevant materials in the intra-church dispute. In Jones v.

Wolf, 443 U.S. 595, 602 (1979), this Court held that a state

may adopt either of these “approaches for settling church

property disputes so long as it involves no consideration

of doctrinal matters.” However, as detailed below, even

courts applying the “neutral principles” approach have

failed to reach consistent results concerning hier-

archically organized churches.

Amici agree that the issues presented in this case

cannot be permitted “to ripen further before resolution

by this Court,” but constitute “a grave constitutional

violation.” Pet. 23. We also agree with the Petition’s con-

tentions of law: at the very least, this Court should give

guidance to state courts applying the “neutral principles

of law” approach; but if the self-understanding of a reli-

gious community cannot be respected under that

approach, the Court should disapprove of it and reverse

the holding in Jones v. Wolf.

To this Court’s deliberation on the Petition amici

bring the perspective of other denominational victims of

lower court adventurism in church property disputes.

Inconsistent decisions among state courts of last resort

5

present an intolerable situation for hierarchically orga-

nized churches and therefore make review by this Court

necessary. See Sup. Ct. R. 10.1(b). Questions of church

structure and polity, for many religious bodies, involve

far more than simple convenience or efficiency: they rest

on deeply held theological and doctrinal beliefs that are

protected by the Religion Clause from government inter-

ference.

This case exemplifies the chief reasons why courts

have failed to respect the arrangements of hierarchically

organized religious bodies (even arrangements clearly

reflected in the body’s governing documents): a tendency

to ignore those documents in favor of purely “secular”

instruments such as deeds, and a misuse and misreading

of other evidence concerning the dealings between a

national church and a local congregation. Accordingly,

this case is an apt vehicle for this Court to clarify the law

and protect the constitutional rights of religious groups.

A. The Decision Below And Decisions Like It

Seriously Burden Religious Freedom By Inter-

fering With Doctrinally-Based Decisions Con-

cerning Church Structure And Governance

Unlike many other collective entities, churches do

not simply choose their organizational structures for rea-

sons of efficiency or bureaucratic ease. Instead, such

structure (or “polity”) is, in many cases, “an expression of

deeply held convictions of a faith community about their

understanding” of the nature of their faith. Pet. 25 n.18.

As a consequence, when courts unthinkingly override the

polity of a hierarchical body, the community self-under-

standing that is violated is a religious one. For that reason,

this Court has long recognized that the Free Exercise

Clause must guarantee religious organizations “power to

6

decide for themselves, free from state interference, mat-

ters of church government as well as those of faith and

doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116

(1952); see also Employment Division v. Smith, 494 U.S. 872,

877 (1990) (court may not “lend its power to one or the

other side in controversies over religious authority or

dogma”). We wish to illustrate this point not only with

respect to the Russian Orthodox Church Outside Russia,

but also with respect to two other hierarchically orga-

nized churches, the Protestant Episcopal-Church in the

USA (hereafter “the Episcopal Church”) and the Presby-

terian Church (U.S.A.) (or the “PC(USA)”).?

The structure of the Russian Orthodox Church Out-

side Russia — hierarchical, with control by bishops over

both discipline and property —- is not unlike that of the

Episcopal Church, which (like other members of the

world-wide Anglican communion) is also hierarchical.

That structure is reflected explicitly in provisions of

church canon law concerning both matters of faith and

matters of property and other business. The canon law

states that “[a]ll real or personal property held by or for

the benefit of any Parish, Mission or Congregation is held

in trust for [the Episcopal] Church and the Diocese

2 These bodies, both of which are members of the National

Council of Churches of Christ in the U.S.A. and will be adver-

sely affected if the judgment below and others like it are

allowed to stand, together count more than 6 million members.

See Yearbook of American and Canadian Churches 256, 258 (1994)

(listing 2.5 million members in Episcopal Church and 3.7 million

in PC(USA)). When other similarly organized churches are con-

sidered, the importance of this issue in sheer numbers is appar- |

ent.

MR MN ee Teer ar ae ORES On

7

thereof”; a local parish or mission may exercise authority

over the property only “so long as [it] remains a part of,

and subject to, th{e] Church and its Constitution and

Canons.” Constitution and Canons for the Government of the

Protestant Episcopal Church in the USA, Title I, Canon 7,

Section 4, at 34 (1985). Moreover, no local parish body

“authorized by Civil or Canon law to hold, manage, or

administer real property for any Parish. . . shall encum-

ber or alienate [the property] without the written consent

of the Bishop and Standing Committee of the Diocese.”

Id., Title I, Canon 7, Section 3. The same trust provisions

and limits on local parish authority apply to “dedicated

and consecrated” churches and chapels. Id., Title II,

Canon 7, Sections 1-4, at 56.

In both the Orthodox and the Episcopal churches, the

placing of authority in the bishop reflects the theological

notion of “apostolic succession,” or the “historic episco-

pate” — the continuity between the first apostles and

today’s church. Indeed, the Orthodox and Episcopal

churches, in ecumenical discussions on the meaning of

their common “episcopal” polity, agree that “[t]he apos-

tolicity of the Church is manifested in a particular way

through the succession of bishops. This succession is a

sign of the unbroken continuity of apostolic tradition and

life.” Dublin Agreed Statement of 1984, § 17, quoted in On

Being a Bishop: Papers on Episcopacy from the Moscow Con-

suliation 43 (R. Wright ed. 1993). As the Petition for

Certiorari (at 25 n.18) notes, “if one believes that Christ's

authority and teaching pass down through apostolic suc-

cession, then one does not let a congregation take votes

on these matters.”

Moreover, to those bodies organized on episcopal

terms, the “historic episcopate” is an expression of the

unity of the church. These bodies take seriously the state-

ment of St. Ignatius in the second century: “Take care,

8

then, to partake of one Eucharist; for one is the flesh of

our Lord Jesus Christ, and one the cup to unite us with

his blood, and one altar, just as there is one bishop assisted

by the presbyter and deacons.” St. Ignatius, Smyrna 7,1,

reprinted in R. Wright, On Being a Bishop, supra, id. at 41.

Thus, the 1979 Book of Common Prayer for the Episcopal

Church states that the bishops “carry on the apostolic

work of leading, supervising, and uniting the Church.”

Book of Common Prayer 510 (1979); see also id. at 517, 855

(admonishing newly ordained bishops to “guard the

faith, unity, and discipline of the whole Church”).

The polity of the Presbyterian family of religious

bodies similarly rests on theological affirmations. The

largest Presbyterian denomination, the Presbyterian

Church (U.S.A.), explicitly provides for the authority of

higher tribunals over matters of both faith and property.

The PC(USA) Book of Order states that “[a]ll property held

by or for a particular church,” wherever legal title is

lodged, “is held in trust nevertheless for the use and

benefit of the Presbyterian Church (U.S.A.).” Constitution

of the Presbyterian Church (U.S.A.) -— Part II: Book of Order

G-8.0201 (1994). Consequently, “[w]henever property of,

or held for, a particular church . . . ceases to be used by

that church... in accordance with [the PC(USA)] Consti-

tution,” such property shall be held, used, applied, trans-

ferred, or sold as provided by the presbytery.” Id.

G-8.0301. And a local church seeking to sever its ties with

the denomination may do so “only by constitutional

action on the part of the presbytery.” Id. G-8.0601.

The distinctive Presbyterian form of governance like-

wise is tied to deep religious tenets. The General Assem-

bly, the highest ruling body of the PC(USA), has

emphasized that

[t]he basis of Presbyterian polity is theological.

Our polity is not just a convenient way of get-

ting things done; rather, it is the ordering of our

9

corporate life which expresses what we believe.

The connection between faith and order is

inseparable. At its heart, the polity of our

church expresses our Reformed theology. What

we do and the way we do it is an expression of

how we understand our faith.

195th General Assembly of the Presbyterian Church in

the United States of America, Historic Principles, Con-

science, and Church Government (1983), quoted in McCarthy,

The Emerging Importance of Presbyterian Polity, in The

Organizational Revolution: Presbyterians and American

Denominationalism at 279, 302 (M. Coalter, J. Mulder & L.

Weeks eds. 1992).

The Presbyterian polity — with tribunals that are rep-

resentative in nature exercising authority over subordi-

nate entities — stems back to the teachings of John Calvin

and the “Ecclesiastical Ordinances” he instituted in

Geneva. After setting forth the various ministerial offices,

Calvin described this “order of church government as

delivered to us in the pure word of God, and

. instituted by Christ.” 2 John Calvin, Institutes of the

Christian Religion 327 (H. Beveridge trans. 1845); see gener-

ally id. Bock IV, chs. III-V. The Westminster Assembly of

1643 to 1645, whose creeds and confessions have directed

much of Presbyterian life for centuries, stated that “[i]t is

lawful, and agreeable to the Word of God, that the church

be governed by several sorts of assemblies, [including]

presbyteries and synods” and that “appeales be made

from the inferior to the superior respectively.” Westmins-

ter Assembly Directory for Church Government, reprinted in

Paradigms in Polity: Classical Readings in Reformed and Pres-

byterian Church Government at 263, 268 (D. Hall & J. Hall

eds. 1994).

In setting forth these doctrinal bases for the hier-

archical organization of certain religious bodies, we do not

suggest that courts must interpret religious doctrines in

10

order to find that a group has such a hierarchical polity.

Cf. Jones, 443 U.S. at 602, 604 (forbidding such inquiries);

Presbyterian Church v. Hull Church, 393 U.S. 440, 449-450

(1969) (same). The hierarchical nature of these commu-

nities is evident from the specific secular terms in the

governing documents as well as the overall structure of

those documents. We cite the doctrinal bases only to

emphasize that to disregard and trample upon a hier-

archical polity bars a group from following its “sincere

religious beliefs” and thus imposes a “significant” burden

on the free exercise of religion. Jimmy Swaggart Ministries

v. Board of Equalization, 493 U.S. 378, 391-392 (1990).

B. The Lower Courts Are In Confusion As To How

To Resolve Church Property Disputes Within

Hierarchically Organized Religious Bodies

In spite, however, of the clear language cited above

in the organic documents, hierarchically organized

churches have been unable to rely on the courts to pro-

vide consistent enforcement of the form of organization

they have chosen. This case dramatizes the problem with

respect to Orthodox churches (here, the Russian Ortho-

dox Church Outside Russia). And cases involving the |

Presbyterian Church (U.S.A.) and its predecessors? and

the Episcopal Church present the same inconsistency and

uncertainty. A number of courts have refused to enforce

the hierarchical polity of these bodies. See cases discussed

a —

3 The PC(USA) was formed in 1983 by the reunion of the

United Presbyterian Church in the USA (UPCUSA) and Presby-

terian Church in the US (PCUS). Several previous cases dis-

cussed here involved the UPCUSA, which had similar

provisions in its Book of Order to those of the PC(USA).

11

in the Petition for Certiorari at 16-17 (Presbyterian

churches), 18-20 (Episcopal churches).4

As the petition shows, some courts have recognized

the authority of higher church bodies over church prop-

erty. See cases cited in Petition at 15 (Orthodox churches),

17 (Presbyterian churches), 20-21 (Episcopal churches).

The upshot of this chaotic state of the law is that these

nation-wide denominations, and others with hierarchical

structures, now face a “patchwork” of conflicting deci-

sions in various states, in an area that calls out for cer-

tainty so as to avoid chilling First Amendment rights.

This Court’s intervention is needed. Sup. Ct. R. 10.1(b).

Several years ago, a survey of the law governing

church property disputes since Jones v. Wolf concluded

that the cases have been shot through with “inconsistency

and unpredictability.” William G. Ross, The Need for An

Exclusive and Uniform Application of “Neutral Principles” in

the Adjudication of Church Property Disputes, 32 St. Louis

U.L.J. 263, 305 (1987).5 As Professor Ross noted, the Jones

decision prompted many critics to suggest that the Court

needed to give “clearer guidance to lower courts” and

thus “that the Court would need to re-visit the question

of church property dispute resolution in the near future.”

Id. at 265. For fifteen years now, however, “the state

courts have navigated the treacherous waters of church

property disputes without additional guidance from” the

4 We discuss the specific reasons for the failure to give

consistent respect to hierarchically organized churches infra in

part C (pp. 14-19).

> While we disagree with that article’s ultimate judgment

that “neutral principles” analysis should be applied exclusively

(id. at 305-316), we agree with its characterization of the uncer-

tainty in the existing law and its recommendation that, if courts

are to apply “neutral principles,” they should do so in a consis-

tent manner.

12

Court. Id. The results —- that “inconsistency and unpredic-

tability abound” - are even clearer, and more distressing,

than in 1987. ~

Moreover, the consequences are important to reli-

gious bodies throughout the United States:

The law would better serve the needs of both

national denominations and their local congre-

gations if both sides were able to make more

accurate predictions about the outcome of prop-

erty disputes. National churches, for example,

could better evaluate the consequences of con-

troversial pronouncements on social and doctri-

nal issues. Members of congregations, in turn,

could better measure the prudence of voting to

withdraw from the parent body.

Id. at 305.

In short, there is an urgent need for this Court, a

decade and a half after Jones v. Wolf, to return to this area

and provide guidance on the proper means of resolving

church property disputes. Moreover, the primary prob-

lem in this area is that identified by the Petition for

Certiorari: the tendency of state courts to disregard the

hierarchical structure of a religious body ~— even as explic-

itly set forth in the governing documents of the church - and

to award property to a breakaway local congregation.

C. The Decision In This Case Exemplifies The

Means By Which Courts Have Overridden The

Structure Of Hierarchical Religious Bodies, In

Violation Of This Court’s Directions

This case presents a textbook example of the means

that state courts have used to disregard the hierarchical

structure of a religious body and impose a congregational

polity on it in violation of its deeply held religious tenets.

Therefore, this case presents an apt vehicle for correcting

the recurring errors and confusion in this area.

13

The Massachusetts Appeals Court (whose reasoning

was adopted by the Supreme Judicial Court, Pet. App. 3a)

recognized that the explicit language of both the general

Church documents and the parish by-laws “provide con-

siderable force to the Church’s position” that it “had

control over the Parish’s property,” especially the church

building and real estate. Pet. App. 8a.° Nevertheless, the

court overrode these documents on the basis of parol

evidence, “particularly of the considerable movement in

and out of the Church by individual parishes who took

with them their own property without claim by the

Church.” Pet. App. 11a.”

¢ As the Appeals Court noted, these explicit provisions

state among other things that the diocesan bishop “administers

and disposes of diocesan and monastic property and supervises

all other church property in the diocese, in accordance with the

4ist Apostolic canon: ‘We command that the Bishop have

authority over the property of the church.’ ” Regulation 47-18

(quoted at Pet. App. 8a; reprinted at Pet. App. 34a). The parish

by-laws provide that “church property” includes “[t]he church

building with all its appurtenances” (By-Laws § 44(a), Pet. App.

42a); and that “[t]he sale of church real estate, its alienation,

exchange or cession for building purposes, shall be effected

subject to the authorization of the Bishops’ Synod.” By-Laws

§ 53, Pet. App. 44a. Any amendment of the By-Laws and any

closing of the parish are likewise subject to the approval of the

Bishops’ Synod. By-Laws §§ 54, 56, Pet. App. 44a.

7 We agree with petitioner (Pet. 8 n.3) that the state appel-

late courts should have conducted an independent review of the

trial judge’s conclusion that the Church was “congregational”

with respect to property issues, rather than accepting that con-

clusion as “not clearly erroneous” (Pet. App. 2a; Pet. App. 9a,

lla). Permitting questions with such import for the Religion

Clause to be left to the discretion of trial courts - or presumably

in some cases, juries — is a recipe for the kind of inconsistency

that marks this area. The very purpose of the independent

appellate review mandated in Bose Corp. v. Consumer’s Union,

14

In addressing the following errors in the state court

decisions, we agree with the legal arguments presented

by petitioner in response to those errors. First, at the very

least, this Court should instruct state courts applying the

“neutral principles of law” approach (permitted in Jones

v. Wolf) that they must give effect to the language and

structure of the governing documents of the general

church. As we will show, to fail to give effect to such

documents violates the clear teachings of this Court on

this important issue of federal law. See Sup. Ct. R. 10.1(c).

More broadly, however, the Court should reject the use of

“neutral principles” of law, at least when they are applied

to override the hierarchical nature of a church as is

shown in the governing documents.

1. Ignoring the Church’s Organic Documents. The

primary reason why some state courts have failed to

respect the hierarchical polity of religious bodies is pre-

cisely what happened in this case: the courts ignore the

governing church constitutions and canons in favor of a

focus on purely secular documents such as property

deeds, or on ill-defined inquiries into a “course of con-

duct.”

In Bjorkman v. Protestant Episcopal Church, 759 S.W.2d

583 (Ky. 1988), for example, the Kentucky Supreme Court

simply refused to follow the provision of canon law, as

well as an instrument of donation from the local parish,

that prohibited encumbrance or alienation of church

property without the bishop’s consent. Bjorkman, 759

S.W.2d at 586 (dismissing both provisions as “of moral

value only and without legal effect”). This refusal was

essential to the court’s conclusion that the local parish

466 U.S. 485, 499 (1984), and New York Times v. Sullivan, 376 U.S.

254, 284-286 (1964), is to ensure consistent protection of First

Amendment rights.

15

“was at all times in control of its temporal affairs” such as

property (id. at 587). Likewise, in Presbytery of Beaver-

Butler v. Middlesex Presbyterian Church, 507 Pa. 255, 489

A.2d 1317, 1325, cert. denied, 474 U.S. 887 (1985), the court

looked solely at provisions in the deeds in awarding

property to the local church, and dismissed provisions in

the Book of Order as merely “a means of overseeing the

spiritual development of member churches” (emphasis in

original).

The same splitting of a hierarchical church into “spir-

itual” and “temporal” authority appears in this case. The

Supreme Judicial Court affirmed the finding that

“although [the general Church] and the defendant parish

were hierarchical in matters of faith and polity, the defen-

dant parish was congregational in terms of property own-

ership.” Pet. App. 2a.

By contrast, as discussed in greater detail below,

courts that have given effect to the provisions in the

general church constitution or canons have found that

these provisions gave the general church control over

matters of property as well as matters of faith and doc-

trine.

Undoubtedly, one factor in determining whether a

court gives effect to provisions in the larger church’s

governing documents is whether the court applies the

“polity” approach or the “neutral principles” approach.

Courts that seek to determine the nature of the polity in

order to defer to the authoritative intra-church resolution

have uniformly concluded that the Orthodox, Episcopal,

and Presbyterian churches are hierarchical, based on the

specific language and overall structure of the organic

documents. See, e.g., Draskovich v. Pasalich, 151 Ind. App.

397, 280 N.E.2d 69 (1972) (Serbian Eastern Orthodox

Church); Tea v. Protestant Episcopal Church, 96 Nev. 399,

16

610 P.2d 182 (1980) (Episcopal Church); Calvary Presby-

terian Church v. Presbytery of Lake Huron, 148 Mich. App.

105, 384 N.W.2d 92, 94-95 (1986) (UPCUSA). The only

cases in which courts have disregarded language in the

organic documents are cases applying the “neutral princi-

ples of law” approach. Thus, some confusion is almost

guaranteed to remain as long as this Court continues to

permit states to “adopt any one of various approaches for

settling church property disputes.” Jones, 443 U.S. at 602

(emphasis in original; quotation omitted). For that reason,

we agree with the Petition that this aspect of Jones v. Wolf

should be overruled and the “polity” approach be

adopted uniformly.

However, even if this Court determines that the

“neutral principles of law” approach remains appropri-

ate, the Court must correct the state courts’ lack of

respect for governing church documents, because that

lack of respect also has undermined consistent applica-

tion of the neutral principles approach. Although Jones v.

Wolf instructed courts applying neutral principles to look

to “the provisions in the constitution of the general

church concerning the ownership and control of church

property” (443 U.S. at 603), state courts since Jones -

including the Massachusetts courts here - have failed to

follow that directive consistently. This Court’s review is

necessary to ensure that the analysis prescribed in Jones is

followed. See Sup. Ct. R. 10.1(c).

For example, the Bjorkman decision dismissed the

Episcopal Church constitution and canons under the neu-

tral principles analysis (759 S.W.2d at 586), just as the

Massachusetts courts here overrode the governing docu-

ments of the Russian Orthodox Church Outside Russia.

On the other hand, several other cases applying “neutral

principles” to Episcopal parishes have enforced those

17

provisions. See, e.g., Rector, Wardens, and Vestrymen v. Epis-

copal Church, 224 Conn. 797, 821-822, 620 A.2d 1280, 1292

(1993); Bishop and Diocese of Colorado v. Mote, 716 P.2d 85,

105-107 (Colo. 1986); Protestant Episcopal Church v. Graves,

83 N.J. 572, 417 A.2d 19, 24 (1980).8

Likewise, several courts applying the “neutral princi-

ples” analysis to Presbyterian documents have refused to

give effect to provisions in the Book of Order, particularly

the provision that prohibits the selling or encumbering of

church property without approval of the Presbytery. See,

e.g., Presbytery of Beaver-Butler, supra; Presbytery of Elijah

Parish Lovejoy v. Jaeggi, 682 S.W.2d 465, 474 (Mo. 1984)

(rejecting that provision as inapplicable); York v. First

Presbyterian Church of Anna, 130 Ill. App. 3d 611, 474

N.E.2d 716 (1984) (simply ignoring that provision). But in

Babcock Memorial Presbyterian Church v. Presbytery of Bal-

timore, 296 Md. 573, 464 A.2d 1008, 1016-1017 (1983), the

court, applying “neutral principles” analysis, enforced

the provision prohibiting sales or encumbrances and thus

awarded the property to the denomination.

Even the explicit trust and property provisions

adopted by some religious bodies and set forth above

(pp. 6-10) have been cast into doubt by the decision and

reasoning of the Massachusetts courts in this case. The

regulations of the general Church and the by-laws of the

Holy Resurrection Parish are quite explicit in providing

that the diocesan bishop “disposes of” and “supervises”

church property, and that any alienation of church prop-

erty, as well as any amendment of the by-laws, must be

® Each of these cases also concluded that the express canon

law provisions reflected or confirmed the “established customs,

practices and usages” of the Church providing for general

church control over property. Mote, 716 P.2d at 105 n.15; Graves,

417 A.2d at 24; accord Rector, Wardens and Vestrymen, 620 A.2d at

1292.

18

approved by the Bishops’ Synod. See supra p. 13 n.6.

While admitting that these provisions have “considerable

force” (Pet. 8a), the Massachusetts courts overrode them

on the basis of vague testimony concerning the “course of

conduct” in this Church and other Orthodox bodies. (We

discuss this “course of conduct” testimony in the next

section.) Given the propensity that courts have already

shown to limit church constitutions and canons to merely

“moral” exhortations or “spiritual” matters, the decision

and reasoning in this case will likely encourage further

disregard of religious bodies’ organic documents.

2. Misreading of Evidence Concerning “Course of

Conduct.” The state court decisions in this case also

exemplify a second recurring source of confusion and

error: the tendency of some courts to elevate vague and

selective testimony about the “course of conduct” in a

religious body above the governing documents.

The Appeals Court here relied heavily on open-

ended testimony about a “crazy quilt” of property owner-

ship in the prerevolutionary Russian Orthodox Church,

including ownership by “tradesmen, nobles, and the

Tsars.” Pet. App. 9a. The Petition, however (at 29 n.24),

points out the obvious irrelevance of government owner-

ship of churches under American conditions of disestab-

lishment. More to the point, the Appeals Court noted that

the parish paid for and managed the property (Pet. App.

9a), but it ignored other elements of the relationship

between the parish and the general Church. This selective

examination of the dealings between the parties — selec-

tively favoring the claim of the local congregation - is,

again, typical of courts that disregard hierarchical church

polities. In Bjorkman, for example, the majority disre-

garded evidence that the local parish “enjoyed the bene-

fits of membership in the PECUSA for many long years,”

including insurance on the church property purchased,

19

participation of the parish clergy in the denominational

pension plan, and regular “help and advice” from the

diocesan bishop. Bjorkman, 759 S.W.2d at 588 (Stephens,

C.J., dissenting).?

* oa *

Even under a proper application of “neutral princi-

ples of law,” courts must give effect to church constitu-

tions and canons (Jones, 443 U.S. at 603); and this Court

should at least reaffirm that directive, since several state

courts have disregarded it. But we agree with petitioner

that the repeated failure of some courts applying “neutral

principles of law” to give effect to clear provisions

embodying a hierarchical polity places that whole

approach on shaky ground. The approval of “neutral

principles” in Jones v. Wolf rests on the premise that

“[t]hrough appropriate reversionary clauses and trust

provisions, religious societies can specify what is to hap-

pen to church property in the event of a particular contin-

gency.” 443 U.S. at 603. The state courts of last resort have

failed to give consistent assurance that this premise will

* Similarly in this case, the Massachusetts Appeals Court

relied heavily on testimony that other parishes had been

allowed to leave the denomination and “[t]ake with them their

property without claim by the Church” (Pet. App. 11a). This

conclusion squarely conflicts with Calvary Presbyterian Church,

supra, in which the Michigan Court of Appeals rejected the

argument that a denomination was estopped from asserting an

implied trust in church property because it earlier had permit-

ted the local church to sell a house that had been similarly held.

148 Mich. App. 105, 384 N.W.2d at 95-96. The Petition for Cer-

tiorari (at 8 n.3) explains why such evidence is inappropriate: it

employs a court’s notion of “consistency” to question the val-

idity of a religious body’s beliefs, when in fact there may (as

there were here) be numerous reasons, doctrinal and practical,

why a higher body chooses to exercise its ultimate control over

church property in one case but not in another.

20

be observed. Surely, if the decision in this case is allowed

to stand, hierarchical churches will be at a loss to know

how they can protect their rights in local church property

if statements as clear as these can be disregarded by

lower courts.

CONCLUSION

Amici urge that the Petition for Certiorari be granted.

Respectfully submitted,

STEVEN T. McFARLAND THomas C. BERG

SAMUEL B. CASEY Robinson Hall Room 309

Center for Law and 800 Lakeshore Drive

Religious Freedom Birmingham, AL

Christian Legal Society 35229-7021

4208 Evergreen Drive, (205) 870-2415

Suite 222

Annandale, VA 22003-3264

(703) 642-1070 :

App. 1

APPENDIX

STATEMENTS OF INTEREST

James E. Andrews, as Stated Clerk of the General

Assembly of the Presbyterian Church (U.S.A.). James E.

Andrews, as Stated Clerk of the General Assembly, is the

senior continuing officer of the highest governing body of

the Presbyterian Church (U.S.A.). The Presbyterian

Church (U.S.A.) is the largest Presbyterian denomination

in the United States, with approximately 2,750,000 active

members in 11,500 congregations organized into 172 pres-

byteries under the jurisdiction of 16 synods.

The Presbyterian Church (U.S.A.) is vitally interested

in protecting the free exercise of religious practice with

regard to church property issues. The case law set out in

this brief is indicative of the Presbyterian Church’s long

vigilance on this issue. As noted in this brief, the polity

and decision making structare of the Presbyterian Church

(U.S.A.) is an expression of the Church’s deeply held

religious convictions, tracing its origins to the first cen-

tury Christian community. Presbyterian constitutional

provisions deal with church property matters in the con-

text of its theological understanding of the Unity of the

Church.

In its constitution (the Book of Order), the Presbyterian

Church (U.S.A.) follows exactly the same process in mak-

ing decisions involving property as it does in the deci-

sions about ordination, placement of ministers in the

pulpit, and in dealing with religious doctrine. This truth

was recently reaffirmed in God Alone is Lord of the Con-

science, a Policy Statement adopted by the 200th General

App. 2

Assembly of the Presbyterian Church (U.S.A.) in 1988 (at

p. 17). The Assembly said: “Internal disputes within

churches, including disputes over church property,

should be decided by the highest ecclesiastical authority

recognized by both sides before the dispute arose.” The

Supreme Judicial Court of Massachusetts has intruded

into this ecclesiastical realm. Such confusion requires this

Court's careful attention.

The National Council of Churches of Christ in the

U.S.A. is a community of thirty-two national religious

communions having an aggregate membership of around

40,000,000 in the United States. Its policies are deter-

mined by a General Board of 250 members selected by the

member communions in proportion to their size and sup-

port of the Council. The Council has entered friend-of-

the-court briefs in over 130 cases involving issues of

ethics, morality and/or religious or civil liberty based on

the policies set by the Board. The Council includes bodies

of both congregational and hierarchical polity. It has long

affirmed the right of its member communions - and all

other religious bodies — to determine their own internal

affairs as they deem best, choosing their own locus for

the exercise of authority, whether local, regional, national

or global, free from intervention by civil powers. That

authority includes the ability to control the use of their

property for the purposes of the religious body, free from

alienation by judicial fiat.

The General Conference of Seventh-day Adventists

is the highest administrative level of the Seventh-day

Adventist Church, representing 7 million members

worldwide. The Church joins the accompanying brief

because it believes and has long taught that freedom of

App. 3

conscience must include not only the right to believe but

also the right to express, advocate and bear witness to

belief and that governmental neutrality towards religion

is in the best interest of both religion and government,

and of society at large.

Christian Legal Society, founded in 1961, is a non-

profit ecumenical professional association of over 4,000

Christian attorneys, judges, law students and law pro-

fessors with chapters in every state and at 85 law schools.

Since 1975, the Society’s legal advocacy and information

arm, the Center for Law and Religious Freedom, has

advocated the protection of religious autonomy, speech

and exercise in this Court and in state and federal courts

throughout the nation.

Using a network of volunteer attorneys and law pro-

fessors, the Center provides accurate information to the

general public and the political branches regarding the

law pertaining to religious exercise. In addition, the CLS

Center has filed briefs amici curiae on behalf of many

religious denominations and civil liberties groups in vir-

tually every case before the U.S. Supreme Court involv-

ing church-state relations since 1980.

The Society is committed to religious liberty because

the founding instrument of this nation acknowledges as a

“self-evident truth” that all persons are divinely

endowed with rights that no government may abridge

nor any citizen waive. Declaration of Independence

(1776). Among such inalienable rights are those enumer-

ated in (but not conferred by) the First Amendment, the

first and foremost of which is religious liberty. The right

App. 4

sought to be upheld here inheres in all persons by virtue

of its endowment by the Creator, Who is acknowledged

in the Declaration. It is also a “constitutional right,” but

only in the sense that it is recognized in and protected by

the U.S. Constitution. Because the source of religious

liberty, according to our nation’s charter, is the Creator,

not a constitutional amendment, statute or executive

order, it is not merely one of many policy interests to be

weighed against others by any of the several branches of

state or federal government. Rather, it is foundational to

the framers’ notion of human freedom. The State has no

higher duty than to protect inviolate its full and free

exercise. Hence, the unequivocal and non-negotiable pro-

hibition attached to this, our First Freedom is “Congress

shall make no law. . 7

The CLS Center’s national membership, two decades

of experience, and professional resources enable it to

speak with authority on church autonomy.