A Virginia trial judge has
ruled that conservative breakaway congregations from the Episcopal Church in Virginia should keep their property. (HT:
Christianity Today) The judge relied on and upheld the constitutionality of an 1867 Virginia statute providing that whenever church property involving a congregation is held in the name of trustees, the majority of the congregation determines who gets the property. This, the court held, was a permissible "neutral principle of law" for resolving intra-church property disputes, of the sort approved by the Supreme Court in
Jones v. Wolf, 443 U.S. 595 (1979).
In these disputes over property arising from a schism, the issue for churches in which congregations belong to larger bodies with religious authority over them -- the Catholic Church quintessentially, but others as well -- is how to ensure that such an authority relationhip is respected by a civil court. Jones v. Wolf had said that this was no problem because higher bodies or denominations could use general legal rules to put title in their name or create trusts in their favor. The Episcopal Church created such an express trust for its parishes in favor of the diocese and general church. But according to the Virginia court, trusts for religious denominations are invalid under state law. Instead the general church should have put title in the name of the diocesan bishop, as Catholics do, or perhaps incorporate every parish.
I'm not up on all the details of this litigation, but the decision raises several concerns. The idea that it's no burden to be blocked from the express-trust route of maintaining control because you can put title in the bishop's name seems a dangerous restriction on churches' ability to structure themselves to reflect their religious understandings about polity. In Virginia, the logic may force all churches to organize themselves either like Baptists (congregation wins) or like Catholics (bishop has formal title), when other churches may have religious reasons for preferring the route of local control but subject to a trust. More generally, a restrictive rather than flexible attitude toward how religious organizations can reflect their polity in legal terms is bad for religious autonomy in general, and should be of concern to Catholics too.
The trigger for these cases, of course, is the withdrawal of conservative congregations from the national church because of its liberal decisions, particularly but not only the ordination of an openly gay bishop. My final worry is that theological traditionalists, cheering these property cases based on their immediate effect, will make law that is bad more generally for the autonomy of religious organizations from state restrictions. That could well harm traditionalist Christianity more in the long run, since, as we are quite aware here on MOJ, traditionalist churches often run up against liberal- or secular-oriented regulation and look to constitutional autonomy doctrines to protect them.
ADDENDUM: I meant to congratulate Steffen Johnson and Gene Schaerr, my friends at Winston & Strawn, who won this case for the breakaway congregations. They have been strong defenders of church autonomy over the years, and they made arguments that would preserve some options for higher church bodies/denominations to use legal rules to retain control over property. But I still remain concerned about state rules that cut off certain kinds of organizational options, like trusts, for the higher body.
Saturday, June 28, 2008
Jim Towey, former head of the White House Office for Faith-Based and Community Initiatives, asks that question about the two presidential candidates in today's Washington Post. He begins by noting the opposition to the program:
Liberals who measure compassion only by tax dollars spent say it hasn't gone far enough, while zealots about church-state separation say that it goes too far and should be shut down. But this program is transforming lives. And in an election campaign lacking for new ideas, this one is worth saving.
As a defender (in scholarship and in litigation) of the faith-based initiative, I agree with Mr. Towey that it has opened the door for many private organizations doing good work with the needy to cooperate with government without having to give up their religious character. (If it focuses on faith-based organizations, that's because they were discriminated against in the past and rules need to be adopted against such discrimination.) But it's a bit irritating to see the paragraph above refer only to "liberals" and separationist "zealots" as dangers to the program. In fact, we have considerable evidence that there were many opponents within the Bush administration itself -- those concerned above all with cutting social spending and, one may reasonably infer, interested in maintaining the program primarily for its political value -- and that they were successful in limiting its funding. That evidence comes not only from the program's former deputy director David Kuo, but from its enthusiastic congressional supporters such as Rep. Mark Souder (Rick Santorum also fought for more funding).
In that light, it seems somewhat partisan to list as opponents of the plan only separationists along with certain "liberals" who want it to do more. But it's good that Mr. Towey ultimately asks McCain as well as Obama whether they''ll really be committed to cooperating with private (including religious) organizations to reduce poverty, especially since McCain has put such an emphasis on restricting discretionary domestic spending. It's just that he might also ask if either of them will put more resources into that cooperative effort.
Thursday, June 19, 2008
Theologian Robin Lovin predicts (and says it's already been) "a change election for religion and politics":
Just where all of this is going is still unclear. We may get a religious movement that is both socially conservative and globally aware in ways that refuse to line up neatly with the available political options. Instead of being a reliable part of someone's base, religious voters may become the new swing vote. Or the new generation may compel the politicians to redefine what the political options are. That will not happen quickly, if it happens at all, but the rhetoric of change that we now hear from both presidential candidates shows that they are alert to this possibility, and the results of the general election in November may give us hints of what this new politics will look like, or at least help to identify who will be shaping it.
Tom
Dale Carpenter's typically thoughtful post argues that one shouldn't oppose same-sex marriage on the ground that it creates "novel" threats to religious liberty, religious liberty concerns are no reason to oppose same-sex marriage, in large part because the conflicts between religious liberty and gay rights in multiple contexts predate any recognitions of same-sex marriage. I agree with the subordinate point. But the problem with his conclusion is that these other conflicts, although distinct, can be affected by the recognition of same-sex marriage, for a couple of reasons. (These are apart from any new religious-liberty challenges that gay marriage itself may raise.)
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Monday, June 16, 2008
The Washington Post reports on the "small but growing number":
When DMC Pharmacy opens this summer on Route 50 in Chantilly, the shelves will be stocked with allergy remedies, pain relievers, antiseptic ointments and almost everything else sold in any drugstore. But anyone who wants condoms, birth control pills or the Plan B emergency contraceptive will be turned away.
There's a familiar response from the "critics [who] say the stores could create dangerous obstacles for women seeking legal, safe and widely used birth control methods." But no evidence of any such obstacles, given that usually contraceptives are available at any number of drugstores.
Tom
Saturday, June 14, 2008
I'm a little confused by aspects of the Vischer-Perry exchange. Rob, when you express concern about "state efforts to overcome ... obstacles to same-sex marriage," are you talking primarily about the state imposing nondiscrimination rules on those who (for religious or other reasons) conscientiously oppose SSM? Michael, in your response appealing to the parallel to Loving, are you generally equating sexual-orientation discrimination with racial discrimination? If the two are equated, then that is likely to do away with most religious liberty claims against the imposition of SSM or sexual-orientation discrimination laws, e.g. employment or employment-benefits decisions by religious schools or social services. See, e.g., Bob Jones (withdrawal of tax exemption because of policy against interracial dating). But I thought, Michael, that you viewed it as consistent to have both SSM and a strong religious liberty/exemptions scheme. Even if SSM is determined to be warranted on constitutional or policy grounds, I think that preserving religious liberty in that context will depend on seeing some differences between SSM and interracial marriage.
Tom
Friday, May 30, 2008
Fleming Rutledge, among the first women ordained in the Episcopal church, is one of America's great preachers. (Check out a video here.) She proclaims a powerful message of orthodox, evangelical Christianity that involves the transformation of the world. Here she writes on how social transformations like the civil rights, anti-apartheid, and Solidarity movements have rested on the power of God rather than "the possibilities inherent in human nature":
For some time now, the academic guilds have been moving away from a rationalistic mode of biblical interpretation. This development opens the way for a new appropriation of the conceptual world of the New Testament, in which the presence of the demonic is presupposed. This perspective shapes theo-ethical thinking in two crucial ways: First, it allows Christians to view opponents not as evil in themselves, but as those who are in the grip of external forces. This conviction empowered Martin Luther King in his consistent message that blacks and whites together were in need of deliverance. Second, the worldview that acknowledges the agency of an active Enemy in world events encourages Christians to look for the power of God not only in stories of individual deliverance, but also in the great social movements of our time.
What practical implications does this have? Well, for example, in the context of exploitative factory conditions,
[i]f we are thinking theologically, we cannot in this illustration cast the corporate bosses as guilty exploiters and the workers as innocent victims. Rather, we see how the Enemy works to seduce and insulate powerful people from perceiving the suffering of their underlings. The bosses of workers in unjust situations are not evil in themselves. They are in bondage to the desire for profit, so that they think of their workers as means to an end, if they think of them at all. Who can loosen such bonds? God alone. Therefore, social action undertaken in the sight of God has the potential to liberate not only the workers but also the bosses, not to mention the activists themselves! This is the uniquely Christian vision based in the knowledge of the power of God for the justification of the ungodly (Rom. 4:5; 5:6).
Rutledge speaks in distinctively Protestant terms, but do these ideas resonate with Catholic themes?
Tom
Thursday, May 29, 2008
We have had, I think, only a bit of commentary on the blog concerning Benedict's November 2007 encyclical Spe salvi facti sumus ("in hope we were saved"). Now the great Protestant theologian Jurgen Moltmann, who for years has set forth a "theology of hope," critiques the encyclical. A couple of passages:
If we compare [Spe Salvi] with Vatican II's 1965 document on "Joy and Hope," or Gaudium et Spes[,] the peculiarity of Benedict's encyclical immediately catches our eye. Benedict's encyclical is intended for church insiders; it is aimed spiritually and pastorally at the bishops of the Roman Catholic Church and "all Christian believers." It limits Christian hope to the faithful and separates them from those in the world "who have no hope."
By contrast, Gaudium et Spes begins with the church's deep solidarity with "the entire human family." ...
What is lacking in the papal writing? What is missing is the gospel of the kingdom of God, the gospel that Jesus himself proclaimed. What is missing is the message of the lordship of the risen Christ over the living and the dead and the entire cosmos that we find in the apostle Paul. ... In short, what is missing is the hope of the all-encompassing promise of God who is coming: "See, I am making all things new." By limiting hope to the blessedness of souls in eternal life, Benedict also leaves out the prophetic promises of the Old Testament. Christian hope then becomes hard to differentiate from a Gnostic religion of salvation.
Comments welcome. Is this critique a fair reading of Benedict -- does he indeed "limi[t] Christian hope to the faithful" and "to the blessedness of souls in eternal life"?
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