Ecclesiastical Divorce in Hierarchical Denominations and the Resulting Custody Battle over Church Property: How the Supreme Court Has Needlessly Rendered Church Property Trusts Ineffectual

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INTRODUCTION

Controversy and conflict often define political life in America. Republicans and Democrats, along with the occasional third party, constantly fight to gain political power by emphasizing their differences on the hot political issues of the day, whether they involve foreign policy, taxes, abortion, or homosexuality. Political conflicts, especially those with moral overtones, divide neighbors and families. In political discourse, conflict is considered normal and even lauded because it fosters vigorous debate, which is necessary to the health of democracy. (1) But political conflicts do not always remain confined to the political arena; they often spill over into other aspects of Americans' lives, including their religious lives. (2) And when controversy embroils a religious organization, the organization may formally split. (3) Once a denominational split occurs, a constitutionally fraught question arises--who gets the church property? (4)

The legal issues surrounding church property disputes are pertinent today, particularly given the rise of one politically contentious issue on the American religious landscape: the role of homosexuals in ecclesiastical life. Given the moral and religious dimensions of this topic, it is not surprising that this politically potent issue has become increasingly contentious within ecclesiastical organizations. (5) This is especially true in America's mainline Protestant churches. (6) For example, the controversy surrounding the issue of homosexuality has been at the forefront of debates in the United Methodist Church, the Episcopal Church, and the Presbyterian Church USA. (7) In the Episcopal and Presbyterian USA churches, the controversy over homosexuality and its role in ecclesiastical life has escalated to the point where a schism appears increasingly likely. (8)

In the Episcopal Church, this issue has been at the forefront of church politics since 2003, when the denomination elected its first practicing homosexual bishop. (9) In addition, the Episcopal Church passed a resolution allowing individual churches within the denomination to bless same-sex unions. (10) These actions have created a firestorm within the denomination, leading many of the churches wishing to adhere to traditional sexual morality to seek separation from the denomination. (11) In fact, entire dioceses have taken steps to disaffiliate with the denomination and are seeking to align with more traditional Anglican bodies overseas. (12) In the Diocese of Virginia alone, eleven churches have voted to leave the Episcopal Church, including two of the diocese's largest and most historic churches--Truro Church and Falls Church. (13) The departing churches represent more than ten percent of the diocese's 90,000 members, and they are attempting to take millions of dollars worth of church property with them as they leave. (14) The property value of the historic Truro Church and Falls Church combined is estimated at $27 million to $37 million. (15) In response to this exodus, the Episcopal Diocese of Virginia has declared the church property "abandoned," and has taken legal steps to obtain the millions of dollars worth of property from the departing congregations. (16) The battle appears to be headed to civil court, as neither side seems willing to give up its claim to the property. (17)

A similar controversy has also engulfed the Presbyterian denomination. (18) At its church convention in the summer of 2006, the Presbyterian Church USA approved the controversial proposal of the "Theological Task Force on Peace, Unity and Purity of the Church." (19) This proposal gives the regional church bodies, called presbyteries, wider latitude to ordain practicing homosexuals as clergy and elders in the church, even though the official standards of the denomination bar such ordinations. (20) Following this action, many congregations have voted to leave the denomination, and many others are considering a split. …