Sunday, September 03, 2006

Walk-away Church Divorce

The Kirk of the Hills, a large conservative Presbyterian Church in Tulsa, has decided to leave the Presbyterian Church (USA) for another denomination that it finds more attractive, the Evangelical Presbyterian Church. After years of complaining that the PC(USA) was doing everything wrong, wasn't listening, just wasn't making the relationship work, Kirk found someone new. Kirk is willing to walk away – it just wants to keep the church building. Kirk's lawyers have already filed suit.

In family studies we talk about "walk-away wives." Most divorces are initiated by the wife, after years of complaints that he isn't acting the way she wants, that he isn't listening, that he just isn't making the relationship work. One day, she just walks away. Her lawyers contact his lawyers. Very often he is surprised by this. He knew she was complaining, but had no idea that she was ready to leave. And she just wants to keep the kids and the house.

Presbyterian church law, unlike civil law, makes it absolutely clear that the denomination owns the property.

"All property held by or for a particular church … is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.)" (G 8.0200 of the Book of Order).

"Whenever property of … a particular church of the Presbyterian Church (U.S.A.) ceases to be used by that church … in accordance with this Constitution, such property shall be held, used, applied, transferred, or sold as provided by the presbytery." (G 8.0300)

"If there is a schism within the membership of a particular church and the presbytery is unable to effect a reconciliation … , the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church within the Presbyterian Church (U.S.A.). This determination does not depend upon which faction received the majority vote within the particular church at the time of the schism." (G 8.0600)

If most of the leaders and members of Kirk of the Hills want to leave, they can. It's a free country, and a voluntary church. I wish they would stay, but they didn't ask me. But they don't get to keep the church. And they won't win by claiming that they are the true Presbyterian Church, so they should get everything. The Presbyterian Church is connectional, not congregational, and we all benefit from the connection.

That said, I think the presbytery should considering selling the building to the departing individuals at a reasonable price – a price big enough for the remaining members to build a new, more modest church, and start again. That would be generous on the part of the presbytery, and sensible on the part of the exiting folks. The property settlement is not really a matter of how literally to read the Bible (the official reason for the departure). It is just church property law.

If you must go, just walk away, or pay up, and go in peace.


Brett said...


If your convictions against the denomination are so strong, surely worldy concerns like money and a building won't hold you back.

Your sensible solution is just that. Those who don't want to leave should not suffer a total loss of a place to worship.

tin305 said...

Those who just walk away should be given benefit of the doubt. I might come to the point of might doing the same thing too. But my faith is high and I have deep trust in the LOrd. He will guide me through.

Gruntled said...

We all might have a time when we need to walk away from any particular denomination. I think it is better for our own characters if we plan on walking away from the building, too.

Talleyrand said...

You know, the leaders of the Kirk have said they will leave with or without the property. The property is a lot bigger deal to the Presbytery than it is to them. But it is definitely better to leave with it, and that would be the just conclusion, considering that it wasn't the Presbytery that paid for it. Maybe they could pay the Presbytery back whatever the 36 people who want to stay in the PC(USA) gave toward the facilites. That would be fair.

John said...

I'm not a church lawyer so I don't know if the PCUSA has the concept of "ex post facto". I do know that US law recognizes it. Perhaps that applies here since Kirk of the Hills property was bought and paid for before that section of the BOO was passed and, indeed, before the PCUSA even existed.

Gruntled said...

The PC(USA) is the successor to a body that was founded in 1706. The property rules are older than the city of Tulsa, so surely precede the Kirk of the Hills.

PJ said...

Beau wrote, "The property rules are older than the city of Tulsa, so surely precede the Kirk of the Hills."

Maybe, maybe not. The texts of the property rules you quote in your post are a fairly recent innovation, going back no further than the late 70s. Before that, I don't think there was an explicit rule about property. The text arose because in the absence of an explicit rule, courts were using "neutral principles of law" to decide property issues -- and often rulling against presbyteries.

If I remember the language correctly, a lawyer in western Pennsylvania advised some congregations it was not possible to retroactively encumber a conveyance. Basically, that meant the property clause didn't apply to gifts made before the mid 70s, and property decisions would be made according to the rules in place when the original gift was made, normally when the church was founded or when the present building was constructed on the current site.

There is a certain air of unreality in the presbytery's claim they own all property. The real sacrifices to care for and maintain the property are not made by the presbytery. For most congregations, the presbytery invests precious little in the care and maintenance of the property.

Imagine what we'd call a landlord who treated his tenants the way presbyteries treat their congregations. Or as an elder once complained, "Presbytery says they own this building. So tell me why we have to pay for the new roof on their building?"

dgn said...

Dear Gruntled, I love the name. I've usually considered myself well gruntled and certainly do not want to diss Gruntled, But, Presbyterian Property Law has always held that the local church owns the property. See the Disciplines of 1560 and 1578. Knox himself was involved in drafting these. The Westminster Confession clearly states "Nor doth their communion one with another as saints, take away or infringe the title or property which each man hath in his goods and possessions.", which in simple terms means just because I hang out with you in the denomination, you don't own my property. This provision is still in the superior part of the PC(USA) Constitution.
The recent additions the the Book of Order, the lesser part of the Constitution were added in the 1980's to bootstrap on a Supreme Court decision. PC(USA) reps have admitted as much. The Westminster Confession provision is based on scripture not on civil law. All references to the church in the NT refer only to locally owned churches. See for example Rom 16:5, 1Cor 16:9, Phil 4:15, Phm1:2, & 2John 10. I cannot find any reference in Scripture to a denominational trust.
Who paid for the property of the Kirk of the Hills? The people who voted 96% in favor of leaving. If the Kirk received even a dime from the PC(USA), they should pay it back, but the denomination should not claim to own property which it did not pay for and does not own. In ruling against the Property Trust provision, aJudge in a NY case recently said it is a basic principle of law that you cannot create an interest in someone's property just by declaring it. This is what the Property Trust provision purports to do. The Presbytery in Oklahoma went out and unilaterally made claim to the Kirk's property. Can't blame the Kirk for wanting to undo that.
Hope the info is helpful.

Gruntled said...

I don't think the Westminster Confession citation is really apt. It seems to me to be about individual property, not congregations. And, in any case, the Book of Order provisions are controlling here and now. I am in favor of making a reasonable deal with the congregational majority, but if they simply try to take the building, I don't see how they have a legal leg to stand on.