Tom, et al. v. Presbytery of San Francisco (Remedial Case 221-03)

This is part three of our series on the recent rulings from the highest court of the Presbyterian Church (USA), the General Assembly Permanent Judicial Commission (GAPJC). The other posts are Presbyterian Church limits the ability of presbyteries to express theological consensus and Redefining marriage by judicial fiat.. These decisions are generally being reported as problematic for evangelicals in the denomination. For the most part, I agree with that assessment although at places results of the decisions have been overblown slightly.

Decision Summary 

Today’s issue is about whether Gracious Dismissal Policies (GDPs) require an evaluation of and consideration for the value of the real property owned by a congregation wishing to leave the PCUSA. 

In other words if a congregation wishes to leave the denomination, can a presbytery say to it: “Go ahead and leave with your property, just give us five years worth of your annual giving to presbytery, and XYZ amount to cover your giving to mission projects. You don’t have to pay us for the building.”

The GAPJC ruling has two main points.

  1. It ruled that the presbytery cannot simply consider its own interests in letting a church go with its property. It also must consider the interests of the national church: “…a presbytery’s discretionary authority to determine property rights, while broad, must be guided by the presbytery’s acting as a fiduciary for the benefit of the P.C.(USA), the beneficiary of the trust clause” (Decision ,3).
  2.  As a result, second, a presbytery cannot let a church leave the denomination without considering the economic interests of the PC(USA) in having the property: “To comply with the Trust Clause, the presbytery must consider the interest of the PC(USA) as a beneficiary of the property” (Decision, 3).

Here’s the gist of the case in the words of the commission:

“Due diligence [by the Presbytery], of necessity, will include not only the spiritual needs of the congregation and its circumstances, but an examination of the congregation’s financial position and the value of the property at stake.”

Interestingly, this decision has no affect on the parties to it. In a bizarre twist of events, the Presbytery followed its GDP and eventually signed a quitclaim deed to the congregation’s property prior to the final disposition of the case. Signing the deed released all interest the Presbytery had in the real property and cannot be revoked. As a result, the case is moot other than to provide guidance for future cases.

The biggest result–a significant one–affects the outcome of future attempts to leave the denomination: the decision essentially voids all of the GDPs made by Presbyteries around the country.

Unless a GDP explicitly provides for a valuation of the real property of the congregation in question and some mechanism by which to guarantee that the presbytery/denomination will be compensated for loss of the same, it is void. There will be a lot of revising going on around the church this next quarter.

Analysis

Evangelicals will likely read this decision as another attempt to stop churches from departing the denomination–it may be. I read one commentator refer to this as the “Shylock” decision. Despite the common perception among evangelicals, it seems a reasonable decision in light of the language of the Book of Order (see below).

It will make it more costly to leave the denomination. Arguably one outcome of the decision is that churches, especially smaller churches, will have a more difficult time leaving the Presbyterian Church (USA) and may elect not to leave. 

Small churches often do not have cash to make a lump sum payment for property in addition to the cash flow needed to pay per capita assessments and mission giving for five years. It bears considering, however, that smaller churches also benefit disproportionately from the services of presbytery and the denomination.

I understand and appreciate the desire of churches and presbyteries to have an “amicable divorce.” It’s a worthy goal. It is shameful to spend vast amounts of mission dollars on litigation between churches and governing bodies.

At the same time, however, the Trust Clause is explicit and it does govern. It may be the only part of the Book of Order that many parts of the church take seriously, but it is still the law unless it is revoked or altered by an act of the General Assembly.

 “All property held by or for a congregation, a presbytery, a synod, the General Assembly, or the Presbyterian Church (USA), 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 (USA).” (G-4.0203)

The language is clear that for a council to release a church from the denomination without at least assessing the value of its real property is failing in its fiduciary duty to the beneficiary, the denomination. I would argue that the denomination should not have an ownership interest in real property to begin with. The reality is, however, that when the predecessor denominations of our current PC(USA) merged, they chose to implement a trust clause.

Some churches, those in the Southern branch of the Presbyterian Church, were allowed to opt out. For those that chose not to, the Trust Clause stands as the provision governing the way real property is held.

There is one area in which the decision seems inconsistent. It makes much of the need to consider the economic impact on the denomination. Fair enough. However, it evinces little concern for the economic impact on a congregation seeking to leave the church because of a conflicted conscience. As an evangelical, I am hardwired to understand a denomination as something that exists to aid and assist congregations in advancing the Great Commission, not vice versa. To the extent that recent decisions of the Presbyterian Church (USA) have caused a crisis of conscience for many, it seems only fair that some equitable solution should be found. I hope that the decision will be construed to allow room for that.

It’s also interesting to note that the presbytery understood that the relationship between congregations and presbyteries is not principally a financial one.

In arguing for the need to consider the value of real property the Court refers to all of the following:

  1. the church as communion of saints across time;
  2. the historic relationship of the congregation to the denomination;
  3. the ordination vows of clergy and lay leaders;
  4. the bond of affection for the church by many members of the congregation.

It fails to list any economic value given to the particular congregation by the higher governing bodies such as presbyteries and synods. 

By doing this the court has essentially agreed with the rationale of the Presbytery in it’s GDP—the primary nature of the connection between church and governing body is not economic, but theological. Yet, in deciding the case the Court refused to consider the value of its investment in the congregation. This seems one-sided.

In reality, the two major parties to a financial decision by a congregation are the congregation itself and the presbytery (which may act as a guarantor on a loan for a congregation). Given this, it is difficult to argue that the PC(USA) has a greater economic interest in keeping property than the presbytery of which the congregation is member.

Recommendations

  • I would advise all churches that are considering departing from the PCUSA to begin hoarding cash because in light of this decision, the cost of departing will have gone up—perhaps significantly.
  •  I would advise presbyteries to adjust their GDPs to provide the valuation of real property and for a gracious resolution of the real property question—perhaps by requiring a tithe of the value of the real property in question.