Date

The “Property Trust Clause”

G-4.0203

A History

Some Foundational Ideas F-1.0302a: Because in Christ the Church is one, it strives to

be one. To be one with Christ is to be joined with all those whom Christ calls into relationship with him. To be thus joined with one another is to become priests for one another, praying for the world and for one another and sharing the various gifts God has given to each Christian for the benefit of the whole community.

F-3.0102: The particular congregations of the Presbyterian Church (U.S.A.), wherever they are, taken collectively, constitute one church, called the church. (Organic Unity)

G-4.0201: The property of the Presbyterian Church (U.S.A.), of its councils and entities, and of its congregations, is a tool for the accomplishment of the mission of Jesus Christ in the world.

What is the “Property Trust Clause?”

•G 4.0203 Church Property Held in Trust

•All property held by or for a congregation, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a congregation or of a higher council or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).

Some history

•18/19th Century Presbyterianism

•No reference to property in 1789 documents from the First General Assembly

•1838 - Old School/ New School Schism•Old School Assembly urged congregations to conform their property-related documents to civil law, and to work to conform civil law to the standards of church law. Made no provisions about ownership or trust.

Watson v. Jones (1872)• Three “tests” by which to determine the matter of the ownership of

church property:

• The Doctrinal Divergence Principle: Has the property been used in a manner consistent with the doctrinal purposes for which it was originally donated?

• The Congregational Preference Principle: If the church is “strictly independent of other religious organizations, and ... holds no fealty or obligation to any higher authority,” then the numerical majority of the membership controls ownership.

• The Hierarchical Deference Principle: If the church “is but a subordinate member of some general church... in which there are superior ecclesiastical tribunals, (and)...whenever questions of discipline... have been decided by the highest of these tribunals, the legal tribunals must accept such decisions as final, and as binding on them....”

Presbyterian statements post-Watson

• PCUS, UPCNA, and PCUSA GAs all massaged the tension between congregational ownership of property and the obligation of the congregation to conform its behavior and ownership to the provisions of the Constitution.

• PCUS - 1944: “In the final analysis, the right in and to all property within its ecclesiastical jurisdiction belongs to the Church as a whole - the entire denomination” (PCUS Digest of the Minutes, 1944, p.80).

• PCUS - 1950: A particular church “does not have an absolute ownership of its property without reference to the denomination” (PCUS Minutes, 1950, pp.60).

• PCUS - 1953: “The beneficial ownership of ...property... is in the congregation, and title may be properly held in any form... consistent with the provisions of civil law.... In every instance nothing in the manner of tenure of such property or the use thereof shall be in violation of the obligation of such congregation to the body of the PCUS...” (PCUS Minutes, 1953, 143).

PCUS v. Hull Memorial Presbyterian Church (1969)• The US Supreme Court all but evacuated the first of the Watson

principles, “doctrinal divergence”:

• “... the First Amendment severely circumscribes the role that civil courts may play in church property disputes...”

• It commanded civil courts henceforward “to decide church property disputes without resolving underlying controversies over religious doctrine.”

• Courts may use “neutral principles” of law - but did not define those principles.

Jones v. Wolf (1979)• Ruled that civil courts could turn to “neutral principles”, but went on

to provide some definition:

• - a state court might adopt a presumptive rule of majority representation (the “congregational preference principle”), but that such a rule would be “defeasible upon a showing that the identity of the local church is to be determined by some other means.”

• - further noted that “other means” might include “providing in the corporate charter of the constitution of the general church that the identity of the local church is to be established in some way other than majoritarian representation, or by providing that church property is held in trust for the general church and those who remain loyal to is (italics added).

UPCUSA and PCUS “Property Trust Clauses”• In 1981, GAs of both denominations proposed addition of property trust

language to their constitutions. Passage was assumed to be less likely in the PCUS, but the many property cases in civil courts resulting from the PCA split persuaded many PCUS presbyteries of the need for constitutional clarity.

• Jones v. Wolf thus gives rise to the language of property trust currently in our Constitution. G-4.0203 (and its predecessor, G-8.0201) is an attempt to clarify for civil courts that PC(USA) congregations are connected to each other as part of a larger ecclesiastical body that understands itself as a unity in Christ.

• Property trust is also a way of reminding the church that the controversies of the day should not lead us further to divide the body of Christ. Those who invested themselves in years past in building the church - both its facilities and its fellowship - continue to have a voice in the future of the church through the trust of the property.

Roundtable Discussion• What is the “organic unity of the church,” and how is it expressed in

other ways than in the church’s notion of the ownership of property?

• What does it mean that a congregation or entity holds property “in trust for the use and benefit of the Presbyterian Church (U.S.A.)?

• What are “neutral principles of law”? How have they been applied in Louisiana cases on church property?

• Have Louisiana courts been willing to entertain arguments that would overturn the “majoritarian principle” in favor of explicit trust statements like those in G-4.0203?