PULSES rarely race in Shaughnessy, a genteel, old-money district of
Vancouver where mature cedars shield mansions with giant drawing-rooms.
But the splendid Anglican church there, which draws worshippers from
across the city, is the centre of a dispute that arises in many
countries: how should judges rule in religious rows?
Usually such
quarrels involve worldly goods and rival claims to be the true
believers.
They quickly raise theological issues normally settled in
church councils, not the courtroom.
St John’s Shaughnessy is the largest of four conservative parishes in
British Columbia that have quit Canada’s mainstream Anglican
(Episcopalian) church in protest against the blessing of same-sex
unions.
They want to take their churches and their other property with
them; their bishop is resisting.
In the latest twist in a long battle, in November, British Columbia’s
court of appeal ruled in favour of the bishop. Parish conservatives
want to appeal.
The issue is who runs the church—something that has
riven Christianity since its founding.
Liberals say the decision on
same-sex blessing was taken according to the rules.
Conservatives (many
of them Chinese-Canadians) see it as an aberration: they argue that most
of the 80m adherents to worldwide Anglicanism belong to churches that
eschew gay unions.
The court’s ruling will add to the billowing secular jurisprudence
on the handling of disputes over religious assets.
A similar row may be
looming in the Church of England, where a bunch of Anglo-Catholics are
turning to Rome in protest against women becoming bishops.
Their leaders
will be ordained as Roman Catholic priests on January 15th.
Such rows occur chiefly among Protestant Christians (Roman
Catholicism has its own legal system), but also among Hindu and Sikh
immigrants to the English-speaking world; they often arise when a
religious community dissolves after the death of a charismatic leader.
They feature more often in the New World than in Europe.
Marco Ventura, an Italian law professor, points out that most legal
systems in continental Europe give such weight to the predominant church
that rebels have little chance.
The Paris municipality, which owns all
church property there under France’s laïcité regime, has at
least half-heartedly backed the mainstream Catholic church in its
efforts to oust ultra-conservatives from a church near the Seine.
Even in Christianity’s holiest places, the careful rules set by
Ottoman and British colonial powers (mostly still in force) have failed
to settle quarrels about the faith’s real estate.
In December the
Palestinian Authority issued an ultimatum to three Christian churches
whose squabbling has endangered the 500-year-old roof of the Church of
the Nativity in Bethlehem.
As for the modern Anglo-Saxon world, the 44-page judgment handed down
by the court in British Columbia gives a glimpse of the complexity
involved.
It mulls over some of the landmark judgments of America’s
Supreme Court on intra-Christian disputes and mentions a recent case in
Britain involving two factions of a Hindu sect.
It also cites a
remarkable ruling by Britain’s law lords in 1904 vindicating a tiny
bunch of Protestant diehards in a property row, on the ground that
predestination was indeed an immovable part of their church’s doctrine.
Under the English-speaking world’s common law, precedents, sometimes
going back to medieval England, always play a role. But wherever
religion is concerned, national taboos and traditions matter too.
The
United States is a special case because of the constitutional bar on
either establishing a religion or restricting religious freedom in any
way.
In the Supreme Court’s view, this means that American judges must
strenuously avoid doing or saying anything that implies they are
weighing the merits of a religious doctrine.
Judges in most other democracies are less constrained.
They may not
wish to speculate on the destiny of the soul or the nature of sin.
But
property disputes between religious groups often involve the
interpretation of trusts, which may have been established for, say, “the
propagation of the Presbyterian faith”.
In a typical case, two or more
factions will claim to be the genuine representatives of that faith and
denounce their rivals as impostors.
Like it or not, interpreting the
wishes of a trust’s founder in tricky circumstances is a quintessential
job for a judge.
In its most recent landmark ruling (a 1979 case known as Jones v Wolf)
America’s Supreme Court said a court could look into a church property
dispute but only if it studied the relevant documents (trusts, title
deeds and so on) in a “neutral” and non-religious spirit, as though it
were looking into rows among philatelists or hikers.
This modified an
earlier ruling that said courts should simply respect a church’s
internal procedures and their outcome.
Meghaan McElroy, an American legal scholar, argues that a “neutral”
approach allows a judge to respond fairly whenever a large dissident
movement, insisting on a point of principle, emerges within a religious
group and makes a claim to part of its assets.
Conservative Episcopalian
parishes in Virginia (some of the richest in America) have used that
sort of argument as they try to retain their property after breaking
away from their church’s gay-friendly mainstream.
The state’s Supreme
Court overturned the parishes’ initial victory, on technical grounds, in
June 2010.
In 2009 London’s High Court found itself considering rival claims to
the assets (worth perhaps £25m) of a Russian Orthodox church and diocese
in Britain.
One lot of believers had realigned themselves to the
Istanbul-based Ecumenical Patriarchate; a more conservative grouping
remained loyal to Moscow.
The trust deed said the assets could be
reassigned if “any doubts may arise relating to the continuity of the
life of the diocese”.
The Istanbul-leaning faction argued for a broad
interpretation of this clause, saying that the community’s original
liberal and cosmopolitan atmosphere had been compromised.
But the judge
agreed with the Muscovites, who argued that no such doubt had arisen:
services were continuing as normal.
At least the judge had something in writing.
Even harder are
questions of “implied trust”, created by past gifts of money and effort.
The British Columbia conservatives, in a tactic that is typical of such
cases, argue that the assets now enjoyed by the four dissident parishes
were bequeathed by people who believed in the principles of traditional
Anglicanism, in other words as part of an implied trust.
The court wrestled with that argument but ruled that the “implied
trust” involved loyalty to the Anglican church’s regular structures
(even with their newly gay-friendly line).
Moreover, the judgment
accepted the contention that same-sex unions were not a fundamental
issue of Anglican doctrine.
That is an interesting point for theological
dispute, but marshy ground for secular courts to tread on.
Yet as long
as quarrelsome religious groups keep resorting to the law, judges can
hardly avoid getting dragged in.
SIC: TE/UK