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Ecclesial Freedom and Federal Order: Reflections on the Pacific Homes Case

Published online by Cambridge University Press:  24 April 2015

William Johnson Everett
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Extract

Our public life takes shape within a field of competing organizational forms. Corporations, assemblies, constitutions, and federations compete for our loyalties, providing models of proper human existence. Like the family, they seek to provide trustworthy and dependable relationships of power and authority that enable us to live, work, argue, and reconcile with each other. Many crucial decisions of our social life revolve finally around the choices we make as a society among these institutional forms and the means by which we evoke deep sentiments of legitimacy and trust to uphold them.

The primary forms of American public life emerged in the rejection of European monarchy and religious establishment. The Constitution replaced the Crown and the denomination came to replace the one true Church. Fundamental to this revolutionary transition were the emergence of covenantal forms of association and democratic assemblies as the constituent elements of legitimate public authority. Social life was not to be governed by hierarchical and patriarchal authority “from above” but by free agreements of the people forged in open public assemblies. This model of legitimate order flowed through both governmental and religious spheres in complex and interpenetrating ways.

Type
Articles
Information
Journal of Law and Religion , Volume 12 , Issue 2 , 1995 , pp. 371 - 397
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1995

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References

1. For the religious dimensions of free assembly and covenantal order see Adams, James Luther, The Voluntary Principle in the Formation of American Christianity, in Engel, J. Ronald, Voluntary Associations: Socio-Cultural Analyses and Theological Interpretation 171–200 (Exploration Press, 1986)Google Scholar, and for a contemporary analysis of the question of legitimation of religious organization see White, O. Kendall Jr., Constitutional Norms and the Formal Organization of American Churches, 33 Sociological Analysis 95–109 (1972)CrossRefGoogle Scholar.

2. See my earlier book, Everett, William Johnson, God's Federal Republic: Reconstructing Our Governing Symbol (Paulist Press, 1988)Google Scholar, for historical and theoretical aspects, and Religion, Federalism, and the Struggle for Public Life, (Oxford U Press, 1997)Google Scholar especially chaps 1 and 5.

3. For a masterful presentation of the complex historical connections between covenant and federalism see Elazar, Daniel J., Covenant and Polity in Biblical Israel, (Transaction Publishers, 1994)Google Scholar and Elazar, Daniel J., Covenant & Commonwealth: From Christian Separation Through the Protestant Reformation (Transaction Publishers, 1996)Google Scholar. For the way covenant and constitutionalism emerged in American life see Lutz, Donald S., ed, Documents of Political Foundation Written by Colonial Americans: From Covenant to Constitution (Institute for the Study of Human Issues, 1986)Google Scholar, and Lutz, Donald S., Religious Dimensions in the Development of American Constitutionalism, 39 Emory L J 21 (1990)Google Scholar.

4. See Carwardine, Richard, Methodist Ministers and the Second Party System, in Richey, Russell, Row, Kenneth and Schmidt, Jean Miller, eds, Perspectives on American Methodism: Interpretive Essays 168 (Abingdon Press, 1993)Google Scholar, and Hatch, Nathan O., The Democratization of American Christianity (Yale U Press, 1989)Google Scholar.

5. For the origins of the problem see Arendt, Hannah, On Revolution (Viking Press, 1965)Google Scholar. For the contemporary theoretical issues see Walzer, Michael, Liberalism and the Art of Separation, 12 Pol Theory 315 (1984)CrossRefGoogle Scholar. See Horn, Robert A., Groups and the Constitution (Stanford U Press, 1956)Google Scholar for an earlier discussion of the lack of associational theory in the First Amendment.

6. For Methodism's place in American culture see Hatch, Nathan O., The Puzzle of American Methodism, 63 Church History 175 (1994)CrossRefGoogle Scholar, and Richey, Russell E. and Campbell, Dennis, Connectionalism: Ecclesiology, Mission, and Identity (Abingdon Press, 1997)Google Scholar.

7. Information for this section draws on Gaffney, Edward McGlynn Jr., and Sorenson, Philip C., Ascending Liability in Religious and Other Nonprofit Organizations (Mercer U Press, 1984)Google Scholar; Lyles, Jean Caffey, Methodist Litigations and Public Relations, The Christian Century 1256 (12 19, 1979)Google Scholar; Report of the 1980 General Council Regarding the Pacific Homes Litigation, 2 Journal of the 1980 General Conference of the UMC 1777–84 (04 1525, 1980)Google Scholar; official court documents, and materials graciously provided by the General Council on Finance and Administration, United Methodist Church, Evanston, Illinois.

8. Barr v United Methodist Church, 153 Cal Rep 322, 328 (1979). There were actually several court cases concerning different aspects of the Pacific Homes bankruptcy, but I am lumping them together as one case for purposes of this analysis. For discussion of liability of unincorporated associations see Gaffney, and Sorenson, , Ascending Liability at 20–40Google Scholar (cited in note 7).

9. Barr v United Methodist Church, no 404611 (Cal Sup Ct 1978) (Minute Order).

10. Barr, 153 Cal Rep at 328, 333Google Scholar.

11. Id at 329.

12. Id at 328. (Quoting from Carnes v Smith 222 SE2d 322, 325 (Ga 1976).

13. See Gaffney, and Sorenson, , Ascending Liability at 133–37Google Scholar (cited in note 7) for some examples. Some Lutheran organizational adjustments are described by Philip Draheim in the same volume at 137-42.

14. Compare the United Methodist Book of Discipline (1980), para 524.2, and Book of Discipline (1984), para 526.2. In addition, the 1984 Discipline added specific language denying that either “master-servant” or “principal-agent” relationships—both conveying legal meanings of liability—defined the relationship of general agencies and the General Conference.

15. See Gaffney, and Sorenson, , Ascending Liability at 103–32Google Scholar (cited in note 7).

16. However, in two Georgia cases involving Presbyterian churches in 1969 and 1979, courts developed the concept of “neutral principles” in order to approach church property disputes without entangling courts in doctrinal matters. In fact, however, “neutrality” simply means formulations familiar to civil law. See Gaffney, and Sorenson, , Ascending Liability at 60–75Google Scholar (cited in note 7); and Laycock, Douglas, The Right to Church Autonomy as Part of Free Exercise of Religion, in Kelley, Dean, ed, Government Intervention in Religious Affairs 28 (Pilgrim Press, 1986)Google Scholar.

17. A separate appeal by the General Council on Finance and Administration of the UMC was rebuffed by the US Supreme Court with Justice Rehnquist's claim that “… the First and Fourteenth Amendments [cannot] prevent a civil court from independently examining, and making the ultimate decision regarding, the structure and actual operation of a hierarchical church and its constituent units in an action such as this.” United Methodist Church v Superior Court, 439 US 1369, 1374 (1978). Cited with comment in Gaffney, and Sorenson, , Ascending Liability at 75Google Scholar (cited in note 7).

18. For an insightful presentation of the dynamic of conference within Methodism see Richey, Russell E., Early American Methodism 65 (Indiana U Press, 1991)Google Scholar and Richey, Russell E., The Methodist Conference in America: A History (Kingswood Books, 1996)Google Scholar.

19. Watson v Jones, 80 US (13 Wall) 679 (1872).

20. Book of Discipline, paras 2501, 2503 (cited in note 14).

21. See White, , 33 Constitutional Norms 95–109Google Scholar (cited in note 1) for a detailed examination of this point.

22. Kedroff v Saint Nicholas Cathedral, 344 US 94 (1952) and Serbian Orthodox Diocese v Milivojevich, 426 US 696 (1976) involved matters of ecclesiastical appointment and related control of church property.

23. See King, William McGuire, Denominational Modernization and Religious Identity: The Case of the Methodist Episcopal Church in Richey, , Rowe, , and Schmidt, , eds, Perspectives on American Methodism: Interpretive Essays at 343–55Google Scholar (cited in note 4) for a description of this process in the late nineteenth century.

24. The extensive organizational changes introduced at the 1996 General Conference of the UMC also exhibit this change, creating what Thomas E. Frank calls a kind of “confederation of annual conferences.” See Frank, Thomas Edward, Polity, Practice, and the Mission of the United Methodist Church (Abingdon Press, 1997)Google Scholar.

25. Memorandum of Points and Authorities in Support of Motion to Dismiss for Lack of Jurisdiction Over the Named Defendant, The United Methodist Church at 5, Trigg v Pacific Methodist Investment Fund, No 78-0198-S (SD Cal 1978).

26. Declaration of Dr. Murray H. Leiffer at 4, 20-21, Barr v United Methodist Church, 153 Cal Rep 322 (Ct App 1979) (No 404611).

27. Richey, , Early American Methodism at 21–32, 65–81Google Scholar (cited in note 18).