WLR44-3_HYDEN_3_7_08 3/18/2008 5:03:02 PM WELCOME TO THE EPISCOPAL CHURCH, NOW PLEASE LEAVE: AN ANALYSIS OF THE SUPREME COURT’S APPROVED METHODS OF SETTLING CHURCH PROPERTY DISPUTES IN THE CONTEXT OF THE EPISCOPAL CHURCH AND HOW COURTS ERRONEOUSLY IGNORE THE ROLE OF THE ANGLICAN COMMUNION R. GREGORY HYDEN∗ I. INTRODUCTION It is settled constitutional law that internal church disputes in- volving faith, doctrine, governance, and polity are outside of the pur- view of civil courts.1 The Supreme Court stated that “[t]he law knows no heresy, and is committed to the support of no dogma, the estab- lishment of no sect.”2 When a dispute erupts into schism, however, serious questions arise as to who owns church property and “[t]he state has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the owner- ship of church property can be determined conclusively.”3 Thus, the Supreme Court held that, while church property disputes come under the scrutiny of the First and Fourteenth Amendments, civil courts can resolve such conflicts so long as the underlying controversy does not 4 involve determining religious doctrines or ecclesiastical issues. ∗ Sitting for the State of Florida Bar, February 2008; J.D., Florida State University, 2007; B.A., University of South Florida, 2004; Episcopal Student Board Member of the Chapel Cen- ter at the University of South Florida, 2001–2004. The author wishes to thank Professor Gey at the Florida State University for his advice and guidance in the writing of this Article. 1. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708–20 (1976); Presbyte- rian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449–52 (1969); Watson v. Jones, 80 U.S. (13 Wall.) 679, 728–729 (1871); see Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d, 648, 655 (10th Cir. 2002). 2. Watson, 80 U.S. at 728. 3. Jones v. Wolf, 443 U.S. 595, 602 (1979). 4. Trustees of the Diocese of Albany v. Trinity Episcopal Church of Gloversville, 250 A.D.2d 282, 285 (N.Y. App. Div. 1999); see also Jones, 443 U.S. at 618; Serbian E. Orthodox Diocese, 426 U.S. 696; Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. at 541 WLR44-3_HYDEN_3_7_08 3/18/2008 5:03:02 PM 542 WILLAMETTE LAW REVIEW [44:541 The Supreme Court approved two different methods that a court may use in determining church property disputes: the Defer- ence/Church Autonomy Approach5 and the Neutral Principles of Law Approach.6 The Court noted, however, that “a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.”7 “While both ap- proaches have their adherents, neither is applied with great consis- tency, and legal scholars have written extensively about how difficult it is for local parishes to order their affairs in the face of this analyti- cal quagmire.”8 Further, despite the broad authority to apply a variety of approaches, “courts frequently disregard seemingly fundamental questions such as what funds were used to purchase the property and how the relationship between the church and [local parish] operates on a day to day basis.”9 What has emerged is a body of case law that is contradictory and often unjust. Since the theological and ecclesiological tensions have developed over the election of a bishop living in a same-sex relationship and the authorization in parts of the [Anglican] Communion of a pub- lic Rite of Blessing of same-sex unions, enormous strains have also arisen in the [Anglican] Communion regarding the pastoral care of those parishes and dioceses within the Episcopal Church that have been alienated from the life and structures of the Episco- pal Church because of those developments . .In response to these developments, some primates[10] and bishops of other Prov- 449. 5. The Deference/Church Autonomy Approach was first espoused by the Supreme Court in Watson, 80 U.S. 679. Professor Douglas Laycock is widely credited with popularizing the use of the phrase “church autonomy doctrine” in his article, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373 (1981). Andrew Soukup, Note, Reformulating Church Autonomy: How Employment Division v. Smith Provides a Framework for Fixing the Neutral Principles Ap- proach, 82 NOTRE DAME L. REV. 1679, 1680 n.6 (2007). 6. The Neutral Principles of Law Approach was approved by the Supreme Court in Jones, 443 U.S. at 602. 7.Id. (quoting Md. & Va. Eldership of the Churches of God v. Church of God at Sharps- burg, Inc., 396 U.S. 367, 368 (1970) (Brennen, J., concurring)). 8. Kathleen E. Reeder, Whose Church Is It, Anyway? Property Disputes and Episcopal Church Splits, 40 COLUM. J. L. & SOC. PROBS. 125, 129 (2006). Ms. Reeder also notes other scholarly work on this topic. Id. at 127 n.6. 9.Id. at 126. 10. “The use of the title PRIMATE in the context of meetings of the Anglican Commun- ion denotes the chief archbishop or bishop of a province of the Anglican Episcopal family of churches.” See The Anglican Communion, Instruments of Communion: Primates Meetings, WLR44-3_HYDEN_3_7_08 3/18/2008 5:03:02 PM 2008] WELCOME TO THE EPISCOPAL CHURCH 543 inces have been drawn into ad hoc arrangements assuming or claiming differing levels of pastoral and Episcopal authority for such ministry. This has created a complex pattern of parishes which are opting out of the life and structure of the Episcopal Church.11 This interventionist structure is particularly significant to church dispute cases because Dioceses of the Episcopal Church are suing to retrieve church property from groups they consider to have left the church.12 “In addition, it is becoming clear that around half a dozen dioceses are likely to withdraw from the Episcopal Church if their leadership continues in their conviction that the Episcopal Church has departed from a proper understanding of the Christian faith as re- ceived by Anglicans.”13 Given this situation, the Anglican Primates have urged “the representatives of The Episcopal Church and of those congregations in property disputes with it to suspend all actions in law arising in this situation.”14 It is not likely that churches are heed- ing that call. If a parish in a hierarchical church splits from that church struc- ture, who gets the property? Should it make a difference that the church is hierarchical in name but congregational in reality? Should it matter if the church belongs to an international church that operates in a congregational form in name but hierarchical structure in reality? If a court defers to the highest church tribunal in matters of doctrine and polity, what standard should be used to determine what the “highest” court is? Can neutral principles of law be applied justly if a court ig- nores inherently religious documents that also specify how church property is distributed? Should the court become involved in resolv- ing church property disputes when the church itself has http://www.anglicancommunion.org/communion/primates/definition.cfm (last visited Feb. 20, 2007). 11. The Report of the Joint Standing Committee to the Archbishop of Canterbury on the Response of The Episcopal Church to the Questions of the Primates articulated at their meet- ing in Dar es Salaam and related Pastoral Concerns 9–10 (Oct. 2, 2007) [hereinafter THE REPORT], available at http://www.dncweb.org/Report_of_Jt_Standing_Comm.pdf. 12.See Episcopal Diocese of Rochester v. Harnish, No. 2006/02669, 2006 WL 4809425 (N.Y. Sup. Ct. Sept. 13, 2006) (holding that, where a parish broke from the Episcopal Church and realigned itself with the Anglican Church of Uganda, the church property belonged to the Episcopal Church). 13. THE REPORT, supra note 11, at 10. 14. The Key Recommendations of the Primates, The Communiqué of the Primates’ Meet- ing in Dar es Salaam 11 (Feb. 19, 2007) [hereinafter THE COMMUNIQUÉ], available at http://www.anglicancommunion.org/communion/primates/resources/downloads/communique2 007_english.pdf. WLR44-3_HYDEN_3_7_08 3/18/2008 5:03:02 PM 544 WILLAMETTE LAW REVIEW [44:541 not resolved that issue? This Article first explores the two approaches the Supreme Court has authorized for resolution of church property dispute cases. It will then critique the application of those approaches to the unique polity structure in the Episcopal Church and the Anglican Communion. The Article then reviews a selection of church dispute cases involving the Episcopal Church from around the country. Finally, the Article con- cludes with a new suggested framework for courts to consider when dealing with church property disputes that involve a church that is both hierarchical and congregational at both national and international levels. II. THE DEFERENCE/CHURCH AUTONOMY APPROACH The Supreme Court announced the Deference/Church Autonomy Approach by stating “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and binding on them.”15 A. The Origins and Development of the Deference/Church Autonomy Approach16 The Deference/Church Autonomy Approach originates from the seminal Supreme Court decision in Watson v. Jones.17 This case in- volved two factions of a Presbyterian church in Kentucky disputing whether to follow the anti-slavery policy of the national church’s highest tribunal.18 The majority of the congregation disagreed with the church tribunal’s stance.19 The anti-slavery group sued in federal 15.