From the Daily Report

Tuesday, May 10, 2011

CHURCH BATTLES OVER PROPERTY

A split Savannah congregation has high court weighing which side should own historic site

By Alyson M. Palmer, Staff Reporter

Thorny theological differences that have divided a historic Savannah church gave way to secular legal arguments before the Georgia Supreme Court on Monday as the justices weighed which side of the split should control property that has been in the church's name since 1733.

The dispute, which has drawn competing amicus briefs from a spectrum of Christian denominations, stems from a decision by the majority of Savannah's Christ Church to leave the national Episcopal Church in 2007.

The departure followed similar moves in other Episcopal congregations since 2003, when the national church made a gay man a bishop.

In Savannah, Christ Church's reverend, also known as the rector, informed the bishop in charge of Episcopal churches in Georgia that the breakaway church had placed itself under the authority of the more conservative Anglican Province of Uganda. Rector Marc Robertson has said in press releases the dispute is about the "freedom to choose to follow the Jesus of Holy Scripture and not a culturally-manufactured Jesus."

The national Episcopal Church released the rector from his duties and appointed a new priest to minister to the remaining congregants who had elected to remain loyal Episcopalians. And the national church would not let go of the considerable earthly possessions amassed by the parish over the past 278 years.

Along with the Georgia diocese and the Christ Church members who stayed, the national church filed suit. They asserted ownership over the land on which Christ Church parishioners have worshipped for centuries, as well as the congregation's endowment and other real estate. The national church argues that the local congregation has held title to the property in trust for the mission of the greater church.

The breakaway church members, who have been allowed to remain in the historic church building during the course of the litigation while the minority members of Christ Church have been meeting in borrowed church space elsewhere in Savannah, argue that they could not have been holding the property in trust for the larger church because Christ Church predates the existence of a national Episcopal church.

Christ Church, whose early leaders included colonial religious figures John Wesley and George Whitefield, was granted the land on which the church building now sits by the English king and didn't become affiliated with the national Episcopal Church until 1823.

But the breakaway congregation has lost its legal fight, both before Judge Michael L. Karpf of the Chatham County Superior Court and a panel of the state Court of Appeals. The state Supreme Court in January agreed to take a look at the case, over the dissents of Justices Robert Benham and Hugh P. Thompson.

Besides garnering national media attention, the case has drawn numerous amicus briefs, signaling that the importance of the case goes beyond resolving a local congregation's squabble. The Becket Fund for Religious Liberty, the Presbyterian Lay Committee and the American Anglican Council have filed briefs backing the breakaway church. The African Methodist Episcopal Church, the Greek Orthodox Church, the United Methodist Church and the Church of God have filed briefs supportive of the national Episcopal Church.

Courts have been cleared to handle church property disputes since a landmark 1979 decision by the U.S. Supreme Court. In that case, which was from Georgia, the nation's highest court said the First Amendment does not bar secular courts from resolving church property disputes, as long as the courts apply "neutral principles of law."

The Georgia Supreme Court has signed off on disciplinary rules of the Holiness Baptist Association and the United Methodist Church that imposed trusts on local church property for the benefit of the greater denomination.

The bench was fairly quiet at Monday's argument. Most of the court's remarks and questions came from Justice David E. Nahmias, who seemed more receptive to the arguments of the national church, and Bibb County Superior Court Judge S. Phillip Brown, who sounded inclined to vote in favor of the breakaway congregation. Brown was sitting in for Presiding Justice George H. Carley, who recused from the case for reasons not announced by the court. (Carley's official court biography says he is a member of St. Barnabas Anglican Church in Dunwoody.)

Appearing for the breakaway church, Savannah lawyer Paul W. Painter Jr. argued that the state Court of Appeals had applied too broadly a state statute, O.C.G.A. § 14-5-46. The law says that "[a]ll deeds of conveyance" for "any lots of land" for the purposes of building a church or meeting house shall be valid for the purposes contained in the deeds.

Painter said the statute was merely a "deed validation statute," one that "does not cover what the Court of Appeals was recognizing."

"It does not cover any and all property a church may hold," he added.

Brown, the visiting judge from Macon, said the meaning of the statute was clear: Church property must be used for the purposes set forth in a deed, not a church canon promulgated in New York (an apparent reference to the site of the Episcopal Church's headquarters).

"I'm just wondering why you're fighting this statute," he told Painter.

"Your honor's points are excellent points," Painter responded, explaining the statute was simply the only way the national church could win the case.

The national church also has relied on a 1979 church canon, known as the Dennis Canon, that purports to place parish property in trust for the national church and local diocese. Painter argued Monday that, if such a stipulation is not in a deed, it must be in the denomination's constitution or the next closest thing.

But Nahmias questioned that argument, noting that at various points in Christ Church's history it had formally acceded to not only the larger church's constitution, but also its canons. "Why do we say constitutions matter and canons don't, when you accede to both?" asked Nahmias, whose campaign biography says he's a member of Holy Innocents' Episcopal Church in Atlanta.

Episcopal Church rules require giving congregations three years to consider a constitutional change, Painter replied, while the record is clear that neither individual churches or dioceses were given advance notice that the Dennis Canon would be on the 1979 meeting's agenda.

Nahmias questioned how a secular court could require certain church procedures without violating the rule that it must apply neutral legal principles.

Brown helped Painter out on that one. "Bylaws come and go with board meetings," said Brown. "Constitutions have more stability to them."

Appearing for the national church, Valdosta attorney James L. Elliott argued that O.C.G.A. § 14-5-46 was meant to apply to any written document conveying property and did not apply to worship space alone. Elliott insisted that the court could look at church documents to back up the national church's stance, if the statute doesn't apply.

Nahmias asked Elliott why his side was trying to "squeeze" this case into the statute.

When Elliott responded that the interpretation of the statute was the question posed by the court in agreeing to hear the case, Nahmias turned to his colleagues on the bench, grinned and shrugged, garnering laughter from the galley.

Elliott presented the national church's argument along with Mary E. Kostel, a Washington-based in-house lawyer for the Episcopal Church. She noted that the dispute was not simply a local-versus-national-church dispute, arguing that the Christ Church members who have elected to stay as Episcopalians deserve access to their property.

Kostel argued that, when Christ Church joined the Georgia diocese in 1823, Christ Church relinquished its separate congregational identity.

When Brown noted that the Dennis Canon didn't exist then, Kostel said that the tradition of the local church holding property in trust for the larger church, while codified by the church over time, dates back to the Church of England.

"The building stays within the larger church," she said.

The case is Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop in the Episcopal Diocese of Georgia, No. S10G1909.