Amicus Curiae Brief — The v. Protestant Episcopal Church (No. 08-1579)

Supreme Court, U.S.

Fi

LED

JUL 27 2089

OFFICE OF THE CLERK

No. 08-1579

Sn the

Supreme Court of the United States

THE RECTOR, WARDENS AND VESTRYMEN OF

SAINT JAMES PARISH IN NEWPORT BEACH,

CALIFORNIA, ET AL.

Petitioners,

V.

THE PROTESTANT EPISCOPAL CHURCH IN THE

DIOCESE OF LOS ANGELES, ET AL.

Respondents.

On Petition for a Writ of Certiorari

to the California Supreme Court

BRIEF OF THE

PRESBYTERIAN LAY COMMITTEE

AS AMICUS CURIAE IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

FORREST NORMAN KENNETH W. STARR

GALLAGHER SHARP COUNSEL OF RECORD

1501 EUCLID AVE. 24569 VIA DE CASA

MALIBU, CA 90265

CLEVELAND, OHIO 44115

(310) 506-4611

(216) 522-1175

Counsel for Amicus Curiae

Presbyterian Lay Committee

July 27, 2009

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002

IT.

QUESTIONS PRESENTED

Whether the California Supreme Court

violated the First Amendment’s Establishment

and Free Exercise clauses by interpreting a

state statute to confer a special power on

certain religious denominations to create

trusts for their own benefit in the real

property of affiliated local church corporations,

solely by declaring that they have unilaterally

enacted a post-hoc internal rule, when no

other person or entity has such power under

state law?

Whether this Court’s refereeing in Jones v.

Wolf, 443 U.S. 595 (1979), to denominational

canons and constitutions as potential sources

of neutral principles of property law can be

read, consistently with the First Amendment,

as trumping other secular laws governing

property rights?

il

TABLE OF CONTENTS

QUES TIONS Fe iiletisscccnecsovenccecsese..s i

TABLE, OF AU Taper etaiiccisessrtsncesssccscsscesnecccscseese iv

INTEREST OF AMICUS CURIAE...............0....c00seecesseeee 1

REASONS FOR GRANTING THE PETITION............... 3

I. The Litigation-Triggering Changes In The

Nation’s Religious Composition Since

Watson v. Jones And Jones v. Wolf Call

For Reexamination Of The Hierarchical-

Deference Rule. .......... Se din censocescessce 4

II. Due To Substantial Changes In The

Nation’s Religious Makeup, Hierarchical

Deference Has Become Practically

Unworkable And Constitutionally

PO soca ksctosccesoys.0..-..... 6

A. Hierarchical Deference Entangles The

Courts In Religious Doctrinal

RR 6

B. The Hierarchical-Deference Approach,

Whether Adopted Explicitly Or

Through State Statutes That Allow

The Formation of Unilateral Trusts

Over Church Property, Creates Both

Unequal Treatment And Preferential

Rina Fe SE re 12

C. Continuing Use Of Hierarchical

Deference Has The Potential For

Lawlessness And Unfairness...................... 14

il

D. “he Neutral-Principles Approach

Both Embodies Sound Constitutional

Principles And Is Highly Practicable

RO Fe CN ons shcckcdd in cepitedibisnronridvtnceniseess 15

III. California Corporations Code Section 9142

As Interpreted By The California

Supreme Court Establishes Hierarchical

Deference And Violates The First

PIB, viclnsiccastens been 16

A. California Corporations Code Section

9142 Unconstitutionally Advantages

Hierarchical! Denominations At The

Expense Of Congregational

SONI os cscs chsnavcuieacapecaces caacedientawics 17

B. California Corporations Code Section

9142 Unconstitutionally Delegates

Governmental Decision-Making

Authority To Religious Institutions. .......... 19

IV. Both Hierarchical Deference And

Enforcement Of Unilaterally Adopted

Church Property Trust Provisions Are

Incongruous With The Expectations Of

Congregational Church Donors, Members,

FREE PII, dvnnesccsecpsicedistanetncsanes aeons 20

AFI IN i vccnsessochsataaradesinied eoneeniieniesancavneenenieneena 22

iV

TABLE OF AUTHORITIES

Page(s)

Cases

Bjorkman v. Protestant Episcopal Church in the

United States of America of Diocese of Lexington,

FO Ae is Re CID, BO racsecsciiccsvcascspeecinsconssenes 12

Board of Education of Kiryas Joel Village School

District v. Grumet,

Se Sa EE IED vn cas nce ssvnnsnvacssncessybevesssonasstaevness 15

Chrapko v. Kobasa,

Be TT, “TIED iss scsinhs duvivcenusnnuiienadoasenaneutoune 10

Clough v. Wilson,

I Pa ee ee COD, RTE) noises cencccneccsnsvsnsecsconnes 8

Concord Christian Center v. Open Bible Standard

Churches,

34 Cal. Rptr. 3d 412 (Ct. App. 2005)..................... 8

Corp. of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos,

Oe ie ee TE a cc nes.csvsnviptecenadscnricunsdsiavesecsans 17

Crumbley v. Solomon,

Be Bee BO CAM. EDTE) onc ccccsccccccscccesccccesscscccsess 9

Dragelevich v. Rajsich,

263 N.E.2d 778 (Ohio Ct. App. 1970) ......-cccccceeeeee. 7

Drozda v. Sassos,

23 N.Y.S.2d 544 (App. Div. 1940).....00.0..0.000000022.. 10

Epperson v. Arkansas,

Ne, SO oss swe wspennsdvncteesssasuosedoerevanade 16

Everson v. Bd. of Educ.,

NT Me WPT css echcdivanausnsebsevasasesedencuc cacuvaepsuess 16

Vv

First Church of Brethren v. Snider,

Fee Fee ee ED ans ncn essensivnvanscssnccadaveveenysasvie 10

Hayman v. St. Martin’s Evangelical Lutheran

Church,

Fe Se, Fe i I vicistncnnecceactpcrecveasestteeenne 10

Immanuel Evangelical Lutheran Church v. Fromm,

RAG Fe, We ee FO CIGD, BIDS) nove ccessccccccconcsssosccccee 10

Jones v. Wolf,

I RT Bh ncsknasesisdecnscechesncixeansunsennes passim

Kelley v. Riverside Blud. Indep. Church of God,

358 N.E.2d 696 (Ill. App. Ct. 1976) ..............cccceeess 7

Kemp v. Lentz,

68 N.E.2d 339 (Ohio Ct. App. 1943).................... 10

Larkin v. Grendel’s Den,

Re A I oan cccsuccnvsscenecsiccseonsnednausvans 19, 20

Larson v. Valente,

a Bs : ee 17, 18

Malanchuk v. Saint Mary’s Greek Catholic

Church of McKees Rocks,

DD Fie Be, FI ecvisaccreicniicsessccvescciecssoscossvesess 8

Master v. Second Parish of Portland,

BBG Fe ee CHE GAT. BED vneviccscceccsncesccencossceccesces. 8

Md. & Va. Eldership of the Churches of God v.

Church of God at Sharpsburg, Inc.,

241 A.2d 691 (Md. 1968),

vacated and remanded, 393 U.S. 528 (1969),

aff'd, 254 A.2d 162,

appeal dismissed, 396 U.S. 367 (1970).................. 7

Mullins v. Els:vick,

ee Oh. OF ee I CHR, BIO vic iecicssccsccnacscesecssssnesovers 10

vi

Rosicrucian Fellowship v. Rosicrucian Fellowship

Nonsectarian Church,

ee sc ssncdesnanstetsdamerontevietone 8

Serbian Eastern Orthodox Diocese v. Milivojevich,

aan and nssnnidcilanseenansveesiin 8, 14

Serbian Orthodox Church Congregation of St.

Demetrius v. Kelemen,

256 N.E.2d 212 (Ohio 1970),

cert. denied, 400 U.S. 827 (1970) .................cccccscees f

Singh v. Singh,

S Cal. Retr. Sd 4 (Ct. App. 2004) .........0.ccccrcccccceveee 8

Smith v. Church of God,

ee By I, ile Bs BUT BD seve ccsssoccctesscossevercesssous 7

W. Conference of Original Free Will Baptists

of N.C. v. Miles,

129 S.E.2d 600 (N.C. 1963)........ aged aden eee 10

Wallace v. Jaffree,

IE sada sbucheseecnssbunavientacenucte 18

Watson v. Jones,

80 U.S. (13 Wall.) 679 (1871).................0cceee0 3, 6, 8

Zorach v. Clauson,

ee I oo scans andiegnesevtentobeietenaets 16

Statutes

ee I OG MPEGS 5 csscsvecscsersisnavecsvedeeoss 16, 17, 18

Other Authorities

Adams, Arlin M. & Hanlon, William R.,

Jones v. Wolf: Church Autonomy and the

Religion Clauses of the First Amendment,

128 U. Pa. L. Rev. 1291 (1960) ...........cccccc.-ceccseses 13

Vil

American Anglican Council,

Equipping The Saints: An Educational Resource

Produced by The American Anglican Council,

8 (3d ed. March 2009),

http://www.americananglican.org/

assets/Resources/Equipping-the-saints/

Equipping-the-Saints-3AAC.pdf........ 0.0... ccc cece eee 11

Greenawalt, Kent,

Hands Off! Civil Court Involvement in

Conflicts over Religious Property,

98 Colum. L. Rev. 1843 (1998)................... 9. 12, Zi

Grossman, Cathy Lynn,

Most Religious Groups in USA Have

Lost Ground, Survey Finds,

USA TODAY, Mar. 9, 2009, available at

http://www.usatoday.com/news/religion/

2009-03-09-american-religion-ARIS_N.htm......... 5

Hassler, Jeff,

Comment, A Multitude of Sins? Constitutional

Standards for Legal Resolution of Church

Property Disputes in a Time of Escalating

Intradenominational Strife,

35 Pepp. L. Rev. 399 (2008) ................c0cceeee. passim

Kosmin, Barry A. & Keysar, Ariela,

American Religious Identification Survey

3 (Mar. 2009), available at

http://www.Americanreligionsurvey-

aris.org/reports/ARIS_ Report_2008.pdf........... 4,6

vill

Pew Forum on Religion & Public Life,

U.S. Religious Landscape Survey 5 (Feb. 2008),

available at

http://religions.pewforum.org/pdf/report

-religious-landscape-study-full.pdf.............. 4, 5, 21

Reeder, Kathleen E.,

Whose Church Is It, Anyway? Property Disputes

and Episcopal Church Splits,

40 Colum. J.L. & Soc. Probs.

a eee 9

U.S. Census Bureau, http://www.census.gov ............. 4

INTEREST OF AMICUS CURIAE!

The Presbyterian Lay Committee respectfully

submits the accompanying brief as amicus curiae in

support of petition for writ of certiorari. The petition

was filed on June 24, 2009, and placed on the docket

on June 25, 2009. Accordingly, this application is

timely under Rule 37 of this Court’s Rules.

Established in 1965, the Presbyterian Lay

Committee (“Lay Committee” or “PLC”) is a non-

profit corporation whose mission includes informing

Presbyterians about issues facing the denomination

and equipping local congregations—and their

members—in their interaction with the regional and

national entities within the Presbyterian Church

(United States of America) (“PC(USA)’). The Lay

Committee regularly reports on judicial decisions

concerning church property issues and publishes a

legal guide regarding disaffiliation and related

property-ownership issues: “A Guide to Church

Property Law: Theological, Constitutional and

Practical Considerations.” The Presbyterian Lay

Committee is composed of Presbyterian Church

members who are concerned with how the property

that is purchased with our money is used. As an

| The parties have consented to the filing of this brief in letters

on file in the Clerk's office. Pursuant to S. Ct. R. 37.6, no

counsel for any party authored this brief in whole or in part,

and no person or entity, other than the Presbyterian Lay

Committce and its counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Not less than ten days prior to the due date, the Presbyterian

Lay Committee provided counsel of record for all parties with

notice of its intent to file this brief

2

entity that helps equip lay leaders to maintain the

integrity of the Presbyterian denomination, the Lay

Committee has a strong interest in this matter.

In the wake of this Court’s decision in Jones v.

Wolf, 443 U.S. 595 (1979), the General Assembly of

the PC(USA) unilaterally attempted to assert a trust

in its favor over local congregational property, even

though legal title to local Presbyterian church

property is virtually always held by the local

church-—and in the name of the local church—alone.

Those local churches never assented to the would-be

trust. Few, if any, formal property transfers followed

in the wake of the General Assembly’s unilateral

actions. The Lay Committee holds that this

unilateral assertion of a trust is inconsistent with

the denomination’s’. historical structure of

governance. That well-established structure respects

the autonomous property ownership and

management of and by the local congregations.

Unilateral attempts to superimpose a trust on local

church property improperly impairs the rights and

interests of local congregants, and touches on the

abilities of local church fiduciaries to manage and

protect church assets according to the considered

judgment of local church members.

The United States Constitution forbids

preferential treatment of assertions of power by

ecclesiastical entities in civil courts resolving purely

civil disputes over such matters as title to local

church property. Accordingly, title to property held

by a local religious corporation should be evaluated

in the same manner as property held by any other

legal entity. An assertion of a trust by a self-

described trust beneficiary cannot properly be

3

enforced under trust law principles applicable to

every other person in civil society. That

preferentially idiosyncratic rule should not be

enforced merely because the _ self-described

beneficiary occupies, for some purposes, a higher tier

in a religious community. Correct enunciation of

these principles by this Court will help preserve the

basic legal expectations of Presbyterian—and

other—congregations throughout the United States.

Accordingly PLC respectfully submits its views on

the constitutional analysis properly applicable to

church property disputes and the ramifications of the

competing analyses offered to the bedrock religious

freedoms of millions of American Christians.

REASONS FOR GRANTING

THE PETITION

The issues raised by this closely-watched case

are of utmost importance to the relationship between

religious freedom and the judicial function. The

religious demographics of the United States have

changed dramatically over the last generation. The

upshot is this: the principle of hierarchical deference

handed down in Watson v. Jones, 80 U.S. (13 Wall.)

679 (1871), and criticized—but allowed—in Jones v.

Wolf, 443 U.S. 595 (1979), is no_ longer

constitutionally viable. Some courts explicitly adopt

a hierarchical-deference approach, stating that they

will defer to the decisions of church hierarchies in all

church disputes; other courts, such as the California

Supreme Court in the present case, adopt a neutral-

principles approach in name only, enforcing

documents unilaterally adopted by church

hierarchies declaring themselves the beneficiaries of

congregational property trusts. The decision of the

4

California Supreme Court at issue here, claiming to

apply neutral principles but in fact applying

hierarchical deference, has exacerbated’ the

deepening federal constitutional issues. Confusion

abounds, and litigation has exploded. The time is

ripe for this Court to reexamine the constitutionally-

sensitive principles that govern church property

disputes.

I. The Litigation-Triggering Changes In The

Nation’s Religious Composition Since

Watson v. Jones And Jones v. Wolf Call For

Reexamination Of The Hierarchical-

Deference Rule.

Religion is deeply rooted in our nation’s history

and tradition; it is also profoundly significant to—

and inseparable from—the beliefs and practices of

many citizens across the entire country. Studies

show that approximately eighty percent of

Americans consider themselves religious.2 That

formidable percentage translates into the practical

reality that religion directly touches the lives of

approximately 245 million Americans.?

2 Barry A. Kosmin & Ariela Keysar, American Religious

Identification Survey 3 (Mar. 2009), available at

http://www.Americanreligionsurvey-aris.org/reports/ARIS_

Report_2008.pdf; see also Pew Forum on Religion & Public Life,

U.S. Religious Landscape Survey 5 (Feb. 2008), available at

http://religions.pewforum .org/pdf/report-religious-landscape-

study-full. pdf.

3 U.S. Census Bureau, http://www.census.gov (the population

estimate is calculated from the July 6, 2009, population count of

306,850,212 people).

5

Not only are the $American people

overwhelmingly religious in their worldview, they

are an astonishingly divided community of believers

in the transcendent. According to a study by the

Pew Forum on Religion & Public Life, the United

States is among the most religiously diverse

countries in the _ world. The nation boasts

approximately twelve major religious groups, as well

as literally hundreds of independent sects and small

denominations. Pew Forum, supra note 2, at 10.

With numcrous communities of faith have come deep

internal divisions and intra-church strife. These

disagreements have led to schisms, realignments,

and the formation of new religious communities.‘

This has been particularly true in the Protestant

communities of faith, where the locus of control is

not always fixed. Unlike the Roman Catholic

Church, or the Church of Jesus Christ of Latter-Day

Saints, where property is typically held by a superior

body, many mainline Protestant communities allow

their congregations to hold title to their property.

Jeff Hassler, Comment, A Multitude of Sins?

Constitutional Standards for Legal Resolution of

Church Property Disputes in a Time of Escalating

Intradenominational Strife, 35 Pepp. L. Rev. 399,

405-06, 436 (2008). Internecine disagreements

within various Protestant communities of faith have

often led to property disputes that find their way into

4 Cathy Lynn Grossman, Most Religious Groups in USA Have

Lost Ground, Survey Finds, USA TODAY, Mar. 9, 2009,

avatlable at http://www.usatoday.com/news/religion/2009-03-09-

american-religion-ARIS_N.htm (“Nearly 2.8 million people now

identify with dozens of new religious movements....”)

6

secular courts. These disputes have occurred with

rapidly increasing frequency in recent years.

Aside from increased litigation due to internal

church divisions, immigration has _ significantly

altered the nation’s religious composition.® Indeed,

the country’s religious composition is obviously

different—and much more diverse—than in 1871

when Watson was decided. The issues presented are

entirely ripe—-and increasingly pressing—for the

Court’s resolution.

II. Due To Substantial Changes In The

Nation’s Religious Makeup, Hierarchical!

Deference Has Become Practically

Unworkable And Constitutionally

Problematic.

A. Hierarchical Deference Entangles The

Courts In Religious Doctrinal Disputes.

When this Court first articulated the principle of

hierarchical deference in Watson, most church

structures fitted neatly into two _ categories:

hierarchical or congregational. That bipolar

classification no longer captures the reality of

America’s vibrantly diverse religious groups. For

5 A Westlaw scarch for all state and federal cases discussing

“church property” reveals the following figures (appeals are

counted separately); from 1950 to 1959, there were

approximately 332 cases; from 1960-1969, 343 cases; from 1970-

1979, 387 cases; from 1980-1989, 486 cases; from 1990-1999,

569 cases; from 2000-2009, 806 cases. (This search was done

Jul. 24, 2009, in the “Alleases” database; hence, the numbers for

2009 are not fully comprehensive).

® Kosmin & Keysar, supra note 2, at “Highlights.”

7

example, among the Christian denominations in the

United States today, a host of different

organizational structures exist that combine both

hierarchical and congregational principles. See

Hassler, 35 Pepp. L. Rev. at 405-07. In light of that

structural reality, some courts have determined that

churches can be hierarchical for matters of doctrine

and practice, but congregational for purposes of

controlling property. See Kelley v. Riverside Blvd.

Indep. Church of God, 358 N.E.2d 696, 704 (Ill. App.

Ct. 1976); Md. & Va. Eldership of the Churches of

God v. Church of God at Sharpsburg, Inc., 241 A.2d

691, 703 (Md. 1968), vacated and remanded, 393 U.S.

528 (1969), aff'd, 254 A.2d 162, appeal dismissed, 396

U.S. 367 (1970); Smith v. Church of God, 326 F.

Supp. 6, 12 (D. Md. 1971); Serbian Orthodox Church

Congregation of St. Demetrius v. Kelemen, 256

N.E.2d 212, 217 (Ohio 1970), cert. dented, 400 U.S.

827 (1970); Dragelevich v. Rajsich, 263 N.E.2d 778,

781 (Ohio Ct. App. 1970).

Over the years, courts have’ confronted

significant difficulties when called upon to classify

many faith communities into the bipolar categories

of hierarchical or congregational. For example, there

is a dispute as to the claimed hierarchical nature of

the PC(USA). in particular, as the Presbyterian

polity shows, a denomination may have one or more

successive bodies with some _ responsibility for

doctrinal consistency over geographic areas

encompassing many local congregations, without

having authority over economic matters such as

property ownership. That an organization may have

multiple tiers does not mean that its local

congregations are subject to comprehensive

hierarchical governance. The classification

8

difficulties do not end there. Courts have even had

to handle cases involving churches with no organized

form of government. See Rosicrucian Fellowship v.

Rosicrucian Fellowship Nonsectarian Church, 245

P.2d 481 (Cal. 1952). Consider, too, the case of

Concord Christian Center v. Open Bible Standard

Churches, 34 Cal. Rptr. 3d 412, 423 (Ct. App. 2005),

where the parties themselves disagreed over whether

the church was congregational or hierarchical;

indeed, substantial evidence by both parties pointed

toward the validity of each of their respective

arguments. See also Master v. Second Parish of

Portland, 124 F.2d 622 (1st Cir. 1941) (Presbyterian

church merged with local congregational church);

Malanchuk v. Saint Mary’s Greek Catholic Church of

McKees Rocks, 9 A.2d 350 (Pa. 1939) (local

congregation composed of merged congregations from

denominations with different governing structures);

Singh v. Singh, 9 Cal. Rptr. 3d 4 (Ct. App. 2004) (two

competing boerds in a Sikh Temple, one claiming to

be appointed for life, and the other claiming their

appointment was for a term only); Clough v. Wilson,

368 A.2d 231 (Conn. 1976) (congregation had

ambiguous level of loyalty to Plymouth Brethren

church leader in England).

Cases such as these, where the locus of control is

ambiguous, have beguiled courts into adjudicating

questions of religious polity in violation of bedrock

First Amendment principles. See Serbian Eastern

Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723

(1976). That constitutional infirmity les at the heart

of the Watson-Wolf hierarchical-deference test. The

base inquiry under that test is whether the church is

in fact hierarchical. But that inquiry can become a

snare. “For every Christian church and probably

9

every religious organization, forms of government

relate to doctrine.... In religious institutions,

government is not independent of belief; rather, it

reflects an understanding of how God relates to

human beings and how human beings seek religious

truth.” Kent Greenawalt, Hands Off! Civil Court

Involvement in Conflicts over Religious Property, 98

Colum. L. Rev. 1843, 1877 (1998); see also Kathleen

E. Reeder, Whose Church Is It, Anyway? Property

Disputes and Episcopal Church Splits, 40 Colum.

J.L. & Soc. Probs. 125, 130 (Winter 2006).

Not only is the hierarchical vel non inquiry

fraught with inherent constitutional difficulty,

judges are profoundly ill-equipped institutionally to

make the ultimate theological judgment whether a

church is hierarchical. The problem is further

compounded when precedent has been set by a court

with one denominational polity before it, and

subsequent lower courts improperly apply that

ruling to litigants of another denomination. Any

court ruling which factors in polity risks imposing

that interpretation into other denomination's

internal relationships. In the case for which review

is now sought, it is clear that California's

interpretation of an Episcopal property dispute is

worded in a manner broad enough to blanket other

purportedly hierarchical denominations.

This problem is apparent from the many

inconsistent rulings that dot the judicial landscape.

For example, Baptist churches have generally been

found to be congregational in nature, Greenawalt, 98

Colum. L. Rev. at 1878, yet one modern court

classified a Baptist church as hierarchical, Crumbley

v. Solomon, 254 S.E.2d 330 (Ga. 1979); see also

10

Chrapko v. Kobasa, 114 A. 254 (Pa. 1921) (holding

that the Greek Catholic Church was connected with

the Roman Catholic Church, despite evidence that

the church was independently organized); Drozda uv.

Bassos, 23 N.Y.S.2d 544 (App. Div. 1940) (holding

Greek Catholic Church to be an independent

congregation, not united with the Roman Catholic

Church, despite testimony indicating association);

compare Mullins v. Elswick, 4388 S.W.2d 496 (Ky.

1968) (holding Free Will Baptist church is

congregational because its governing power rests

with members of the congregation), with W.

Conference of Original Free Will Baptists of N.C. v.

Miles, 129 S.E.2d 600 (N.C. 1963) (upholding a jury

determination that a relationship between the local

church and a Conference appointed to decide matters

of doctrine was enough to show Free Will Baptist

churches have a hierarchical structure); compare

Kemp v. Lentz, 68 N.E.2d 339 (Ohio Ct. App. 1943)

(holding Church of the Brethren is congregational,

and that sending delegates to national conventions

and giving money to parent church does not mean it

is hierarchical), with First Church of Brethren v.

Snider, 79 A.2d 422 (Pa. 1951) (holding Church of

the Brethren to be hierarchical because its affiliation

with General Conference and all ministers were duly

ordained ministers of the Church of the Brethren);

compare Hayman ov. St. Martin’s Evangelical

Lutheran Church, 176 A.2d 772 (Md. 1962) (local

church affiliated with Evangelical and Reformed

Church through merger, but still held to be

congregational), with Immanuel Evangelical

Lutheran Church v. Fromm, 116 N.W.2d 766 (Mich.

1962) (holding church to be hierarchical because it

“conducted business” as a part of the Evangelical and

11

Reformed Church). As this illustrative recitation

shows, courts find themselves reaching wildly

inconsistent results in searching for a sort of

jurisprudential Holy Grail. That should not be.

Assuming a church is correctly found to be

hierarchical in nature, sensitive problems still

emerge. For example, in the litigation at hand, the

Episcopal Church claims to be the pinnacle of the

hierarchy, yet it in turn is part of the worldwide

Anglican Communion. The Primates of the Anglican

Church have repeatedly encouraged the Episcopal

Church to suspend this litigation, but to no avail.’

So, to which hierarchy should the courts defer?

Should the Archbishop of Canterbury’s guidance for

litigation-avoidance trump the litigiousness of the

American church’s current decision-makers? The

current—and _ related—jurisprudence is woefully

unclear.

In happy contrast, the neutral-principles

approach “obviates entirely the need for an analysis

or examination of ecclesiastical polity or doctrine in

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

at 605. In Jones, this Court permitted (but did not

require) courts to apply the neutral-principles test

and expressly noted the numerous advantages of

that inquiry. But that was a generation ago. The

intervening history over the past thirty years has

demonstrated not only the practical advantages of

7 American Anglican Council, Equipping The Saints: An

Educational Resource Produced by The American Anglican

Council, 8 (3d ed. March 2009),

http://www.americananglican.org/assets/Resources/Equipping-

the-saints/Equipping-the-Saints-3AAC.pdf.

12

neutral principles, but has illuminated as well the

constitutional mischief inherent in the hierarchical-

deference methodology. A church property rule

designed for nineteenth-century, more homogeneous

America does not address the constitutional realities

posed by religiously diverse twenty-first century

America.

B. The Hierarchical-Deference Approach,

Whether Adopted Explicitly Or

Through State Statutes That Allow The

Formation of Unilateral Trusts Over

Church Property, Creates Both

Unequal Treatment And Preferential

Rulings.

The constitutional incoherence of the

hierarchicai-deference rule, whether adopted

explicitly or through deference to unilateral

denominational claims to beneficiary ~ status, is

manifest. Professor Kurt Greenawalt rightly noted

that hierarchical deference “contains an anomaly

that is so evidently impossible to justify, it will

almost certainly not survive. The anomaly is the

different treatment accorded congregational and

hierarchical churches’ once their’ polity is

determined.” Greenawalt, 98 Colum. L. Rev. at 1866.

This gaping inequality has not gone unnoticed in the

judicial literature. As the Supreme Court of

Kentucky observed in Bjorkman ov. Protestant

Episcopal Church in the United States of America of

Diocese of Lexington, 759 S.W.2d. 583, 586 (Ky.

1988): “[I]m every case, regardless of the facts,

compulsory deference would result in the triumph of

the hierarchical organization.” That is surely

overbroad—and profoundly wrong. Even in a

13

situation where members of a local congregation both

purchased and maintained property entirely with

their own tithes, offerings, and other resources, then

decided by unanimous vote to separate, the local

congregation would lose its property to the general

church solely because of its denominational

affiliation—and an affiliation frequently created in

the distant past. It is difficult in the extreme to

identify any parallel in American law.

Equally important, it is peculiarly the members

of hierarchical churches who will suifer from this

legally-imposed structural inequality. Under the

neutral-principles approach,

[b]ecause congregational churches and their

members are dealt with by civil courts on

the same terms as_ secular’ voluntary

associations, aggrieved members may seek

civil court protection of certain common-law

rights in their relations with the church.

Under the hicrarchical-deference standard,

members of hierarchical or semi-hierarchical

congregations, on the other hand, may be

deprived of all such rights as long as the

denomination determines they should be.

Hassler, 35 Pepp. L. Rev. at 428-29 (citation

omitted).

This starkly unequal treatment spawns profound

constitutional tensions by granting preferential

treatment—in civil courts—to some citizens over

others. See Arlin M. Adams & William R. Hanlon,

Jones v. Wolf: Church Autonomy and the Religion

Clauses of the First Amendment, 128 U. Pa. L. Rev.

1291, 1294-95 (1980). That should not be.

14

In addition, the hierarchical-deference approach

confers litigation advantages on religious bodies that

are not equally afforded to nonreligious associations.

As then-Justice Rehnquist, joined by Justice Stevens,

stated in dissent in Serbian Eastern Orthodox: “To

make available the coercive powers of civil courts to

rubber-stamp ecclesiastical decisions of hierarchical

religious associations, when such deference is not

accorded similar acts of secular’ voluntary

associations, would create far more serious problems

under the Establishment Clause.” Serbian Eastern

Orthodox, 426 U.S. at 734 (Rehnquist, J., dissenting).

In happy contrast to the hierarchical-deference

approach, neutral-principles analysis applies the

same standards to all religious and non-religious

associations. The upshot is this: the latter approach

avoids tipping the scales in favor of one litigant over

another.

C. Continuing Use Of § Hierarchical

Deference Has The Potential For

Lawlessness And Unfairness.

As (the late-Chief) Justice Rehnquist

emphasized in his Serbian Eastern Orthodox dissent,

“If the civil courts are to be bound by any sheet of

parchment bearing the _ ecclesiastical seal and

purporting to be a decree of a church court, they can

easily be converted into handmaidens of arbitrary

lawlessness.” Serbian Eastern Orthodox, 426 U.S. at

727 (Rehnquist, J., dissenting). In recent decades,

bewildering arrays of religious movements have

exercised considerable control over their iaembers.

Quite apart from the occasional madness of a suicide

pact, a hierarchical attempt to take = all

congregational property through imposition of a

15

unilateral trust—and to enforce it through the

hierarchical-principles theory—is not unlike the

actions of some of the new religious movements

which unceremoniously appropriate the assets of

their members. Our submission in this respect is

straightforward: church hierarchies should not be

exempt from the normal rules governing the creation

and recordation of property interests.

D. The Neutral-Principles Approach Both

Embodies Sound Constitutional

Principles And Is Highly Practicable In

Its Operation.

The neutral-principles approach, as its name

suggests, levels the litigation playing field in an

admirably practical way. That achieves a vitally

important constitutional value. As this Court stated

in Board of Education of Kiryas Joel Village School

District v. Grumet, 512 U.S. 687, 715 (1994),

“[a]bsent the most unusual circumstances, one’s

religion ought not affect one’s legal rights or duties

or benefits.” Neutral-principles analysis avoids these

constitutional difficulties and works to ensure

fairness for all parties.

This Court noted in Jones that “the primary

advantages of the neutral-principles approach are

that it is completely secular in operation, and yet

flexible enough to accommodate all forms of religious

organization and polity.” Jones, 443 U.S. at 603. For

example, in denominations that are hierarchical for

both theological and property purposes, such as the

Roman Catholic Church, the potential for property

disputes has largely been pretermitted by the vesting

of title in the Bishop. See Hassler, 35 Pepp. L. Rev.

at 405-06. That centralizing, dispute-avoidance tack

16

is also employed by the Church of Jesus Christ of

Latter-Day Saints. See id. at 436. These churches

would maintain current ownership structures under

neutral principles by either holding title or using

“appropriate reversionary clauses and _ trust

provisions.” Jones, 443 U.S. at 603. At the other

extreme, a clearly congregational denomination, such

as Baptist churches, would continue to have disputes

resolved as they have been in the past. All

denominations would retain the prerogative through

ordinary legal means to determine where property

will end up in the event of a split. Jd. at 603-04.

III. California Corporations Code Section 9142

As Interpreted By The California Supreme

Court Establishes Hierarchical Deference

And Violates The First Amendment.

The ruling of the California Supreme Court is

profoundly flawed. By its decision, our most

populous state’s highest court has crossed a

jurisprudential line that threatens religious freedom.

This Court has often stated that the “First

Amendment mandates governmental neutrality

between religion and religion, and between religion

and nonreligion.” Epperson v. Arkansas, 393 U.S. 97,

104 (1968); see also Everson v. Bd. of Educ., 330 U.S.

1 (1947); Zorach v. Clauson, 343 U.S. 306 (1952).8

The California Supreme Court’s interpretation of

California Corporations Code Section 9142 (“Section

8 We recognize fully that Epperson’s broad statement does not

reflect the views of some Members of the Court, but this robust

neutrality requirement has loomed large in modern First

Amendment jurisprudence.

17

9142”) runs afoul of both of these well-established

principles. The statute discriminates between

different religious sects and small denominations by

favoring hierarchical church structures without a

narrowly-tailored means of fostering a compelling

interest. Further, it violates the Establishment

Clause by advancing religion over nonreligion

through an unconstitutional delegation of state

power to churches.

A. California Corporations Code Section

9142 Unconstitutionally Advantages

Hierarchical Denominations At The

Expense Of Congregational

Denominations.

As interpreted by the California Supreme Court,

Section 9142 inappropriately advantages

hierarchical religions over congregational faith

communities. It does so by granting only

hierarchical institutions the unilateral power to

assert trusts over parish properties without the

consent of the _ titleholder. Cal. Corp. Code

§ 9142(c)(2) (West 2009). In Larson v. Valente, this

Court held that where a law violates the neutrality

principle by discriminating among denominations, it

becomes “suspect” and therefore subject to strict

scrutiny. Larson v. Valente, 456 U.S. 228, 246

(1982); see also Corp. of Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 339 (1987). The test for strict scrutiny

requires that there exist a compelling governmental

interest to justify the discrimination, and that the

law in question be narrowly tailored to further that

interest. Larson, 456 U.S. at 247.

18

In adumbrating the analysis, we assume,

arguendo, that a powerful governmental interest

exists in giving a church the power to rule

autonomously, in order to prevent judicial

entanglement in ecclesiastical matters. Even so,

Section 9142 is not narrowly tailored. The same goal

can still be achieved by striking part (c)(2),° as this

particular provision does nothing more than open the

door for hierarchical churches to do what no other

religious body can do. As written, this portion of the

statute is under-inclusive. However, if it were to

include congregational churches, it would still violate

the Establishment Clause because it would give a

benefit to all religions that it does not give to

similarly situated nonreligious nonprofit

associations. The best way to ensure that Section

9142 is aligned with the ideals of the First

Amendment is to strike Section (c)(2).'°

9 Cal. Corp. Code § 9142(c)(2) (West 2009) (“(c) No assets of a

religious corporation are or shall be deemed to be impressed

with any trust, express or implied, statutory or at common law

unless one of the following applies: (2) Unless, and only to the

extent that, the articles or bylaws of the corporation, or the

governing instruments of a superior religious body or general

church of which the corporation is a member, so expressly

provide.”),

'0 This situation is comparable to those put forth in Wallace v.

Jaffree, 472 U.S. 38, 59 (1985); and Larson, 456 U.S. at 248.

19

B. California Corporations Code Section

9142 Unconstitutionally Delegates

Governmental Decision-Making

Authority To Religious Institutions.

Since Jones, this Court has consistently held

that the government may not delegate decision-

making authority to religious institutions. In Larkin

v. Grendel’s Den, 459 U.S. 116, 122 (1982), this Court

rejected a state law that gave churches a veto over

neighboring applications for liquor licenses, because

the law “vest[ed] discretionary governmental powers

in religious bodies.” Similar to California’s Section

9142, the Massachusetts legislature had granted

churches a special benefit that it did not grant

secular nonprofit organizations. The Court

determined that the measure violated’ the

Establishment Clause because it advanced religion

by allowing churches to influence government land

use regulation. Jd. at 120.

This is precisely the function of Section 9142’s

hierarchical deference. It supplants the legislature’s

well-developed trust law and offers purportedly

hierarchical churches—and no other organizations—

the power to revoke the property rights of any

subordinate parish. Not only does this usurp

governmental authority, but it opens the door to the

Larkin Court’s fear that “the churches’ power under

the statute could be employed for explicitly religious

goals.” Jd. at 125. Granting hierarchical religious

bodies such untrammeled authority over property

rights poses this exact risk, especially when the local

churches have not expressly yielded such authority.

The power to decide who owns property, a core power

of civil government, would be vested in religious

20

bodies, which can—and will—use that power for

their own particularistic purposes, such as to enforce

orthodoxy and stifle dissent.

The result in Larkin would have been different if

the churches’ veto power had been included in local

covenants, conditions, and restrictions that were

voluntarily agreed upon by the surrounding property

owners. Under those circumstances, the churches

would have enjoyed veto power under neutral

principles of contract law. In the same way, a local

congregation is free to grant its_ religious

denomination the contractual right to resolve

property disputes. Yet, the denomination cannot

assume this right without a proper legal instrument

executed by the grantor—in this case, the local

congregation. Allowing religious organizations to

declare unilaterally trusts in their own favor

effectively delegates governmental authority to

religious institutions, which would then become free

to dictate results in a way other parties cannot. This

creates a religion-specific framework that binds even

entities that have not contractually accepted it. The

First Amendment does not allow such a law.

IV. Both Hierarchical Deference And

Enforcement Of Unilaterally Adopted

Church Property Trust Provisions Are

Incongruous With The Expectations Of

Congregational Church Donors, Members,

And Supporters.

The Free Exercise and Establishment clauses

are designed to protect individual liberty. The

purpose of anti-establishment structures is to ensure

that “We the People” may choose religious affiliations

free of governmental influence and _ coercion.

21

Similarly, the government may not lawfully interfere

with citizens’ free exercise rights in order to ensure

that people may worship and believe in the manner

that they see fit.

For many people, church is fundamentally at the

local level. People are connected to the members

they attend church with—the people they are

baptized, married, and buried among—not the

religious hierarchy behind them. In his analysis of

the religious expectations of American church

members, Professor Greenawalt found that “[mJany

Protestants now join a local church that seems

suitable, with relatively little concern about the

general denomination; they switch denominations

freely and, regardless of denomination, may consider

the congregational government of the local church as

most important.” Greenawalt, 98 Colum. L. Rev. at

1875. More systematically, a study by the Pew

Forum on Religion & Public Life confirms that

approximately forty percent of Americans have

switched religious allegiance since their childhood.

Pew Forum, supra note 2, at 5. Thus, it is generally

the case that when members donate money, time, or

land to their church, they mean for it to support the

activities at the local level. When courts operate

under standards of hierarchical deference or enforce

unilaterally adopted trust provisions, however, those

expectations are dashed. Especially in situations

like the one at hand, where the congregation voted to

leave a denomination by a lopsided vote of 341 to 4

(Pet. Cert. 7); the people donated the land directly to

the local congregation (Pet’s App. Br. 7); and literally

all costs associated with building and maintaining

the church property were paid by the very local

members who voted to change affiliation (Pet’s App.

22

Br. 9); constitutional freedom demands that the local

congregation be allowed to retain its property.

CONCLUSION

For the foregoing reasons, the petition of St.

James Anglican should be granted and the judgment

of the California Supreme Court should be reversed.

Respectfully submitted,

FORREST NORMAN KENNETH W. STARR

GALLAGHER SHARP COUNSEL OF RECORD

1501 EUCLID AVE. 24569 VIA DE CASA

CLEVELAND, OH 44115 MALIBU, CA 90265

(216) 522-1175 (310) 506-4611

Attorneys for Amicus Curtae

Presbyterian Lay Committee

July 27, 2009