Who Owns the Farm? Church Property Disputes.
On January 5, 2009 the California Supreme Court handed down a decision in favor of the Episcopal Diocese of Los Angeles. St. James, Newport Beach, had separated itself from the diocese over a doctrinal issue involving homosexuality and claimed ownership of the church property. The Diocese of Los Angeles sued, declaring that the property was held in trust for it. The Supreme Court agreed.
The Court relied heavily on the “neutral principles of law” rule propounded by the Supreme Court of the United States in 1979. The California Court explained this rule as considering:
sources such as the deeds to the property in dispute, the local church’s articles of incorporation, the general church’s constitution, canons, and rules, and relevant statutes….
Justice Kennard of the California Supreme Court agreed with the decision but dissented from the opinion arguing that the “neutral principles of law” rule was inadequate. He would have relied on the “principle of government” rule by which the highest authority in a church makes the final decision as to the ownership of property. He was right.
The “principle of government” rule dates back to 1871 when the Supreme Court of the United States had to deal with church property disputes that followed the division of many congregations over the issue of slavery. That rule has provided guidance and stability in resolving church property disputes, whereas the “neutral principles of law” approach has merely complicated and confused the issue.
The California Court held that the neutral principles of law rule allows judges to review court disputes in “purely secular terms” without their involvement in church “doctrine, polity, and practice.” But how can a secular court know that it is not involving itself in doctrine, polity or religious practice? Answering that question would make the Court the final judge of all those things. The power to define what something is or is not rests on the possession of competency in that subject. A court that declares it is not making religious decisions is asserting authority to define what is religious.
The assertion that it can review matters in “purely secular terms” is in fact a theological assertion—and a crude one at that. It implies a dichotomy between what is secular and what is religious and that what is secular is not religious and vice versa. However, matters that are secular are often defined by believers as religious.
For example, housing the homeless is a secular matter within the power of government, but it is not a purely secular matter. For many believers housing the homeless is profoundly religious and indeed one of the tests of true Christianity (See Matthew 25).
The right to define what is religious is reserved to citizens, and to declare that something is purely secular is to deprive them of their right to the free exercise of religion to regard those matters as religious.
If a matter is within the legitimate power of government the fact that a citizen may define it as religious does not impede the government’s power to pursue it. However, neither does that take away a citizen’s right to see the matter as religious.
If courts were to engage in an investigation of whether they were reading a “church’s articles of incorporation, the general church’s constitution, canons, and rules” in purely secular terms and were to call witnesses on behalf of the church to testify in this matter, the trial would demonstrate the extent to which courts are making assumptions about what is secular and what is religious. Judges do not engage in this investigation, however. They simply declare by fiat that they are not involving themselves in religious matters.
The “neutral principles of law” rule continues a long tradition of setting up religious standards for evaluating secular laws. The courts by declaring that that they are not involving themselves in religion in fact make themselves the judges of what is religious.
In 1947 the Supreme Court, in its Everson decision that applied the First Amendment to the states, set up as a standard for judging whether laws “aid one religion, aid all religions, or prefer one religion over another.” In this way the Court nationalized the anti-Catholic Blaine Amendments enacted in various states giving government expertise in religious matters and establishing a religious rather than a secular standard as the criterion for courts.
The rule for judges should be what is secular and within the jurisdiction of government. Not everything that is secular is within that jurisdiction. For example beliefs and acts that are secular and lawful such as saluting the flag are not within the jurisdiction of government to impose.
Almost all secular laws have religious dimensions for some believers, and government has no power to decree that a matter is not religious and purely secular.
For example, in its 2008 decision regarding gay marriage, the California Supreme Court declared:
Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person….
Had the Court argued that the issue of gay marriage was a secular matter within its jurisdiction, one that it could pronounce on even if some objected to the decision on account of religion, that would have kept discussion within the realm of the secular. Instead, the Court made itself the supreme judge of religious freedom and belief.
In 1785, in his famous Memorial and Remonstrance opposing a tax assessment for the support of churches in Virginia, James Madison wrote that religion is wholly outside the “cognizance” of civil society. Government may not say what aids religion, and judges may not declare that their actions have no impact or effect on religion or that their decisions are “purely secular.” To declare that they are not making religious decisions is to bring the meaning of religion within the “cognizance” of the courts and to make the judges into religious experts.
Judges and courts should abandon the “neutral principles of law” rule and return to the more stable and better “principle of government” rule that focuses more on the secular power of courts. They should avoid declaring that they are not making religious decisions because that declaration supposes that they are the final arbiter of the definition of what is religious.