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.
- 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).
- 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:
- the church as communion of saints across time;
- the historic relationship of the congregation to the denomination;
- the ordination vows of clergy and lay leaders;
- 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.
Jeff Gissing 
This is a thoughtyful analysis of the very onerous GAPJC decision. However, a few additional observations can be made.
First, the whole decion is based on a predicate that in most instances is false to begin with–a legaly valid trust.
Second,no payment of any kind, much less one based on property valuation, was required under the former Articles of Agreement, even though the trust (and a presbytery’s accompanting fiduciary duties), was alleged to exist at the time. This belies the decision’s contention that fiduciary duties require consideration of property values.
Third, the notion of paying a tithe of the property value is unconscionable in virtually every case. Almost all churches paid for the land, financed construction, and maintained and insured the property without any finacial help from the PCUSA whatsoever. (And usually all prior to when the would-be beneficiary adopted a trust in its own favor.) And along the way the local churches already have made generous voluntary finacial donations to the PCUSA in the form of per capita and mission giving.
It has yet to be explained how the denomination’s attempt to forcibly acquire someone else’s property, through threatened eviction proceedings, that the denomination never helped to pay for in the first place can be justified as godly or moral.The PCUSA seeks to justify the trust clause as a theological reflection of the organic unity of the Church — but this is revisonist history designed to “sell” the idea of the trust to a religious audience, even PCUSA loyalists who are increasingly uncomfortable with how the trust clause is being used to bully local churches. When the trust clause was initially adopted, official PCUS, UPCUSA, and PCUSA committees went on record as stating that the trust clause was a purely secular device that civil courts could interpret without reliance on any religious doctrines. See, e.g. The PCUS Permanent Judical Commission Report to the 1981 General Assembly.
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Great comments, Lloyd. I don’t know much of anything about trust law and my intuition is that this decision is over-reaching.
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Although there have been sad even outrageous exceptions, PC(USA) Presbyterians can be gratified by the way presbyteries have been dealing with departing congregations is gracious, Christ-honoring ways. That stands in stark contrast to the Episcopalians who have been treating departing congregations harshly and vindictively. That denomination won’t even negotiate with congregations willing to pay full market value for the buildings they built and paid for, giving churches only the two choices of surrendering the property voluntarily or litigating. At its triennial conference last summer, Episcopalians learned that the denomination has spent $18 million in legal fees seizing churches’ properties in court. And in one instance in New York City, the denomination sold the property to a Muslim group for a lower price than offered by the congregation. Denominations which behave this way seem clueless that they’re sounding the death knell for this type of church polity but maybe they figure that since they’re sliding toward extinction anyway it doesn’t matter much. I fervently hope that this PC(USA) judicial decision won’t result in presbyteries embarrassing themselves and the cause of Christ the way Episcopalians are embarrassing themselves.
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Jim, I’ve been pleasantly surprised yet recognize that should departures increase this posture by presbyteries may change.
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I have had conserable experience with dismissal procedures in more than a dozen states. Sadly, being gracious has been the presbytery exception, NOT the norm. A few presbyteries have acted graciously because the law leaves them with few practical alternatives. And a few more, in Houston and a few places on the west coast, have acted graciously–but then a more hard line synod overturns them. For the most part, though, in north Texas, north central Georgia, Kansas, Missouri, Indiana, Oregon, South Louisiana, Western North Carolina, and many other places, the presbyteries have put local churches through the wringer.
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Recommending a 10% payment is really disingenuous and irresponsible. You might as well just say that no one should be allowed to leave. Why on earth would you endorse something like that that will only penalize evangelicals?
Perhaps it’s time we acknowledge that the PCUSA is toxic and dying, and the best it could do is release potentially healthy churches to wherever they want to go without cost? Why should a toxic denomination be entitled to any money at all? Them getting paid is not good for the kingdom and will not help preach the gospel to a lost world. It will only penalize the churches that want to do just that.
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Tom, thanks for commenting. The ten percent tithe was more an off the cuff idea and not something that I am necessarily advocating.
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My question is how will the Presbtery’s be able to maintain these buildings with heat and electricity when many of the Presbyterys are already running in the red financially. Looks to me like the seizing of the buildings is going to put an undue stress on the Presbeterys financial budgets just to make a point that they are going to make it difficult for congregations to leave.
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I agree. It does seem that way.
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They often sell the buildings to real estate developers, or to non PCUSA churches, then use part of the sale proceeds to pay their lawyers or finance litigtion against other congregations that wish to leave the PCUSA with their property intact.
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I may be naive, but I would think a financial analysis on the part of the Presbytery which details the ongoing costs of maintaining the property when it is vacant versus the likelihood of a timely and reasonable sale would satisfy the GAPJC ruling. In many cases letting the property go IS the most prudent financial decision.
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Hi, interesting article. My question is what if a church broke relations with the PCUSA, refusing to pay the “amicable divorce” which seems arbitrary to me. If I (my church) want to leave the Presbytery because I feel called to do so by God, why do I have to empty my pockets to an organization I no longer wish to be part of? So my question is what if I (my church) ceased to preach Presbyterian doctrine and removed the name “Presbyterian” from everything we own. We already have an administrative commission, so what repercussions would be dealt to us?
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How much power an administartive commission ( AC) has depends on whether the local church is a member church of trhe PCUSA or not. If the former then the AC may have all power to take over the church and effectively seize control of the property by firing the pastor ( i.e., “dissolve the pastoral relationship”) and replacing the sessioin with presbytery surrogates I “i.e. “assume original jurisdiction”). . If the latter, the AC has no power at all over the administration of the local church because the PCUSA, and hence the AC of the PCUSA’s presbytery, would not have ecclesisatical jurisdiction. One doers not terminate the PCUSA’s jurisdiction, though, simply by not preaching Presbyterian doctrine or removing the name “Presbyterian.” UnNder the Book of Order, a local church leaves the PCUSA by an act of the presbytery, in “dismissing” the church from the PCUSA to another Reformed body. According to PCUSA acolytes, you can only leave the PCUSA if the PCUSA says you can go, because the BOO only speaks of dismissal by the presbytery. However, as a matter of well-established American constitutional law, departure from the PCUSA would also be effective upon a vote of the congregation at a duly noticed congregational meeting convened with a quorum, whether or not the presbytey votes to “dismiss.”. A congregation’s right to act on its own to “disaffiliate” only requires a majority of those present and voting–but as a practical, tactical, and pastoral matter, one would not wish to pursue this path unless one thought they could garner at least a super majority ( 66%) or preferably, 75, 85, or 90 % vote. Finally, the effect of dissafilaiting before an AC is appointed and exercises original jurisdiction is to eliminate the threat of an immediate hostile takeover.. Disaffiliating does not determine ultimate property use and control.THat is a separte issue, to be determined by the law of the state where the proerty is located and, if that state uses neytral principles of law, the property-related facts of the particular case, as evidenced in the deeds, the local arrticles of incorporation, and other relevant documents. If an administartive commission already exists and has authority to exercise original jurisdiction, then objectionable activity risks the AC deciding to use its power, assume original jurisdiction, thereby seize control of the church administration and property, and effective prevent any congregational meeting from being called at which any disaffiliation vote could be taken.
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power at all to
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Lloyd – thanks for replying to the comment (I was hoping you would!).
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I have a question . if a Presbyterian Church that is already paid for in full and later joins PCUSA and then wants to no longer be part of PCUSA .why should PCUSA Get the church if it is still going to be a Presbyterian Church ?
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Great question. I imagine that joining the pcusa creates the trust….I cannot think of single church that has joined the pcusa from another denomination, personally.
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What if the trust is broken by the PCUSA, when the members of the church feel betrayed by the PCUSA and Just want to go back to being a Presbyterian church like before .The PCUSA never did us any good or help ?
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If I understand what you’re saying, your congregation came into the PC(USA) from another presbyterian denomination (or as an independent presbyterian church). In doing that it is likely/possible that you created a legal trust (an ownership interest in your church property) that in favor of the PC(USA). This is a very specific legal situation and I would get the advice of a qualified lawyer specializing in real property and specifically church property law.
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