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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0677%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0677%3A09. Public record. Not legal advice.