Church schism dispute, part 2

On Sep 17, 8:07 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> When I was a kid, I belonged to a particularly sectarian Lutheran
> congregation. The church's constitution (and presumably its articles
> of incorporation, at least by reference) contained a statement that
> in the event of a schism all assets would be allocated to the part of
> the congregation that still followed the true faith as set out in
> various documents such as the Augsburg Confession.
>
> Even at the time, I remember thinking that it would be a real hair
> ball to litigate that claim.
>
> In fact there never was such a schism, but if there were, what would
> a court do?

I'm a bit rusty on this; 25 years ago, I wrote my law review case study on an antitrust dispute between the National Conference of Catholic Bishops - who reserved to themselves the right to put an imprimatur ("seal of approval") on all Catholic prayerbooks published in the USA - and a renegade publisher who came out with a competing, "unofficial" breviary (a prayerbook for priests) that was taking away sales from the "approved" publishers before the bishops ordered a boycott of the unapproved texts.  The upshot was, the court ruled it was OK to impose antitrust liability on NCCB for organizing the boycott even though the bishops claimed the boycott was doctrinally based because their imprimatur was necessary to assure that Catholic prayerbooks did not contain any heretical material.*  The court relied on the same principle as applied to allow the law to ban polygamy, etc.   The court doesn't care whether or not a marriage, or a book, is orthodox or heterodox in the eyes of the church.  All it cares about is that the secular law be obeyed, and for a monopoly business to boycott an upstart competitor is just as illegal as having multiple wives regardless of the reasons why either the bishops, or the polygamists, believed their religion told them they had to do this.

Anyway, in your situation, if the factions couldn't agree, the court would indeed have to decide who gets to keep the property, but it wouldn't do so by deciding doctrinal issues regardless of what the church bylaws said.  It would rather ignore those doctrinal issues and decide the case on secular principles.   Most likely, the majority faction would get to keep the property, regardless of whether they were the ones closer to Martin Luther's original principles.

You may have heard about a schism recently in the Episcopal church where the majority factions of a number of local congregations here in the Mid-Atlantic, including the eponymous Falls Church in Falls Church, VA (one of several where Geo. Washington used to worship), broke away from the American episcopal leadership (whatever it is called) and affiliated themselves with a Nigerian Anglican archbishop whom they felt was truer to the traditional church than the pro-gay, pro-female ordination Americans.   The breakaway faction got to keep the church buildings because they were bigger.   The minorities, who wanted to remain loyal to the American Episcopal movement, went and started their own, smaller congregations.

> Someone would have to decide which of the two daughter corporations
> owned the land and buildings and bank accounts, and if not a court
> then who?

One would hope that, if both sides consider doctrinal issues to be important, they would agree to submit to private arbitration by a body learned in church law.   Frex, orthodox Jews having disputes with each other will go to a Bet Din ("house of judgment", the term for any panel of 3 observant rabbis who agree to arbitrate a dispute among Jews) who will decide the issues according to halacha (religious law based on the Bible and Talmud).   The secular courts won't get involved in deciding Talmudic issues, but the parties' contractual agreement to submit to the Bet Din is secularly binding and the courts will enforce the result reached by the Bet Din if one party breaches the settlement.  Similary, Roman Catholics can submit to a Canon Law court run by the church hierarchy, and Moslems can go to a Shari'a court.  I'm not sure what the equivalent would be for Lutherans -- maybe the synod that had (up to the point of the schism) been recognized by the congregation itself as its governing or coordinating body vis a vis other Lutheran congregations.

Otherwise, the court will probably just award the property to the majority faction as the continuation of the original congregation.

> I don't see how a court could duck this because deciding
> who owns disputed property is done by courts in our society.

Right.   They wouldn't duck it, but they wouldn't get involved in resolving doctrinal issues to decide the case.

> I can
> imagine both sides would have to call expert testimony to show why
> they were following the Confession and other documents and therefore
> deserved the assets.

Actually they could do that if they submitted to a (private and religiously based) canonical court or panel.   That is the appropriate place for such doctrinal disputes to be hashed out.  The secular courts would be happy to decide who gets the property but in doing so they would simply ignore any doctrinal reasons for why one or the other group should be preferred and will rely only on secular principles as applied to the facts -- probably meaning, simple majority wins.

* Personally, when I wrote my law review article, I took the side of the bishops, arguing it made no sense to apply secular antitrust boycott law to a situation where the bishops were deciding what their loyal followers could and couldn't read or buy if they wished to remain within the faith and not be heretical.  IMO that was the whole point of a church body _having_ control over doctrine, the right to preach to their congregations against involvement in _religious_ activities or products that would endanger their faith.  To me, bishops telling their flocks not to buy a particular prayerbook whose only market was members of their particular faith and which the bishops had determined was not an orthodox expression of that faith, was fundamentally different from preachers urging their congregations (and others) to boycott other, purely secular and legal, broadly marketed activities or products they viewed as sinful (or as eating into their profits).  But that's not what the court held; the court that decided the NCCB case seems to have essentially concluded that the bishops' purported doctrinal reason for boycotting the non-imprimatured book was a pretext, and that their only real reason was to shut down a business competitor, which is secularly illegal. 

--
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