7/28/2007

Christians suing Christians - some preliminary thoughts

Christians suing Christians has been the sub-text of a considerable number of blog entries from the realignment crowd. Various commentaries have made it appear that there is something distinctly non-Christian about Christians suing other Christians in secular court. I have not seen any comments elsewhere in Anglican blog-land. The subject also arises in the more formal exchanges within the Communion.

The most recent missive from the Global South Steering Committee (GSSC) states,

"We have also been pained to hear of the continuing and growing resort to civil litigation by The Episcopal Church against congregations and individuals which wish to remain Anglican but are unable to do so within TEC. This is in defiance of the urgent plea agreed to by all of the Primates in the Dar es Salaam Communiqué. This approach to use power and coercion to resolve our current dispute is both enormously costly and doomed to failure and again, we urge the immediate suspension of all such activities and a return to biblical practices of prayer, reconciliation and mediation."

The Dar Es Salaam Communiqué stated,

"We are deeply concerned that so great has been the estrangement between some of the faithful and The Episcopal Church that this has led to recrimination, hostility and even to disputes in the civil courts."

"The Primates urge the representatives of The Episcopal Church and of those congregations in property disputes with it to suspend all actions in law arising in this situation. We also urge both parties to give assurances that no steps will be taken to alienate property from The Episcopal Church without its consent or to deny the use of that property to those congregations."

The reality is, of course, that Christians sue Christians all the time in civil court. While for specific "ecclesiastical" charges there remain distinctly religious courts, for most purposes in a secular world, in which the laws of particular churches do not have community wide standing as applicable to all, most matters of contention that lead to judicial review end up in civil or criminal court. It works for a Christian Treasurer who is caught with her hand in the till, it works for the priest who abuses children, it works for the whole variety of concerns for which mandatory liability insurance is required of church workers. And it works for two Christian groups that make claim to the same piece of property.

In the United States if you look at the number of lawyers who claim Christian affiliation and the number of plaintiffs and accusers who claim Christian affiliation you would come to the practical conclusion that Christians sue Christians all the time, and that they use Christian lawyers in the process. Furthermore, they do so in civil rather than religious courts.

On the face of it, the property disputes being dealt with by various dioceses of The Episcopal Church have every business being negotiated in court. It is a sad thing that matters come to this point; they sometimes don't. There are times when negotiation and compromise work. Sometimes "prayer, reconciliation and mediation" work. But when they don't it does not necessarily mean Christians have failed to be Christian about it all. It means Christians cannot agree. That too is no surprise. Christians have been in disagreement on a wide variety of matters for as long as there has been church.

The objection to Christians engaging in civil lawsuits seems to derive from three passages from the New Testament:

Luke 12:58-59
Matthew 5:25-26
1 Cor 6:1-86

The primary concern of the reading from 1st Corinthians seems to be that in a world where there were religious courts and civil courts, it was surprising to Paul and condemned by him, that Christians should sue other Christians in a civil, that is to say heathen, court.

The Gospel issue had to do with settling up with one's adversary quickly rather than going to court at all, that is to making peace with one's enemy before the judgment. The imagery and implication was clear: in a context where the end time was understood to be approaching the judge and judgment was not about local matters at all.

The biblical texts cited (perhaps there are others) do not seem to address the contemporary situation at all, except to suggest that Christians shouldn't take their arguments outside their own community and perhaps ought to be more concerned with matters of eternal damnation rather than temporal concerns.

So where else might the notion come into the current snarl that litigation among Christians is unseemly or wrong?

Well, on the face of it, it is unseemly. That is, we ought be able to figure out a better way to deal with our own internal conflicts regarding the use of real goods (the property and artifacts of a parish or diocese) for the pursuit of the Gospel message. The condemnation of litigation seems primarily to be that it is unworthy of our calling as Christians and a costly use of our time and monies.

In First Corinthians Paul clearly thinks that taking matters to secular court is unworthy of a community of believers. Believers ought to settle matters among themselves and rely upon the wisdom of the community and its own judges or leaders for judgment. And further Paul recommends that a person be wronged or be defrauded rather than take the matter to any court at all.

Paul understands that time is wasting and that many things are by comparison to the mission of God trivial. So, if it comes to it, better to be wronged or defrauded and simply get on with the Gospel than to spend time on the grievance at hand.

On several very important levels Paul is right: (i) my time, your time, the church's time, is a wasting and almost everything of our grievances is of no account compared to the Gospel and, (ii) most of the things about which conflict might arise are trivial compared to the salvation of all, or some, or even one person. So the argument against Christians suing Christians is primarily one of focus. Focus on righting wrongs or ending fraud is secondary to the mission of the Church, the salvation of humankind or even, say, the life of a healthy congregation.

There is a third level, not really articulated well in the New Testament, but implicit in the reading of 1 Cor: 1-8. It is unseemly that Christians are seen by others to be at such enmity with one another that they bring suit against one another. Christians, who are to judge the world, ought not be seen to be in such disarray that they must ask outsiders to judge them. By suing one another we are blocking people from seeing in us the fruits of the sort of living that will judge the world. This seems the argument put forward by a short article, "What does the Bible say about lawsuit / suing?"

Given that it is unseemly and a focus that can draw us away from the Gospel, is there any justification of the suits being brought by various parties in the Church against one another?

Returning again to the realities of the common order - Christians sue Christians all the time and it is not considered unseemly. The matter that both parties are Christian is seldom argued as a reason for dropping the case. Christians sue each other over civil matters (often involving being wronged or defrauded). A blanket condemnation of litigation between Christians is untenable. The issue then is about when such suit is appropriate.

On the matter of Christians suing other Christians over church property issues, we have another matter to consider:

Just as with the question of paying taxes, the issue here involves just whose image is on the face of the property. Properties, like coins, bear the metaphorical seal of the Caesar, in our case the State. From that notion arises the notion of eminent domain. "Eminent domain" is a legal concept articulated by Hugh Grotius, who in 1625 wrote the following:

"... the property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property."

Eminent domain is a part of the law of the states in the United States and referred to in the Bill of Rights of the Constitution. There are, I gather, similar sorts of laws in other Nations.

The laws of eminent domain are complex, and I am not a lawyer. But I believe there is a question in all this that finally reaches down into the question of church lawsuits.

All property is held on some level at the sufferance of the State, which in turn holds ultimate title for the common good. It cannot be taken (at least in US law) by the state without due payment and only for expressed common good, but there it is: property is a civil matter. This works for the condemnation of property of all kinds for the building of a new highway. It works in both God fearing and God hating states. Eminent domain laws are a reality and to a large extent work on the basis that property is held by individuals and organizations within the domain of a greater sufferance. That includes Church properties.

If ultimate or eminent control of the land is finally determined by State, that is to say, civil interests, then it might be argued that civil courts have a role to play in determining the disposition of church property just as much as the disposition of any other penultimate use of property. When disagreement arises as to the near-term ownership of other property, it is the courts of the State that determine the legal rights of particular persons or organizations to exercise ownership. Why should it not be so in the case of church property?

So it would appear that there is no special exemption of church property from issues that Christians occasionally can find themselves appealing to civil courts for judgment. Indeed property issues may be particularly of interest to the State given its stake in the outcome.

Arguments among Christians, as to who owns property, are genuinely a scandal, but the scandal precedes the litigation. Litigation may be a result of scandal; it is not the scandal itself. It is important to be clear that when all or a large majority of the congregation of a church determine to leave The Episcopal Church the faith is hit with the scandal of persons of faith who on some level cannot be reconciled to others of the faith. That scandal is real and we must face into it. But when reconciliation fails and disputes about property become a reality, the courts are there and can on occasion be a help in addressing the reality of the practical issues faced.

So why all the fuss about Christians suing Christians? Well, the answer is simple. The object of the fuss is to make the various dioceses of the Episcopal Church who have entered into civil action against groups who wish not only to leave the church but take the silver feel guilty, and particularly guilty as concerns an understanding of Scripture. The fuss gets nicely packaged as the good guys – those who are true believers against the bad guys – those who consistently misuse Scripture. The accusation of scandal and unscriptural actions is invoked; they say, "See, The Episcopal Church, that terrible gang, is even taking us to court!- how unscriptural!" Liberal and progressive Christians dislike the criticism that we are not too well versed or understanding of Scripture. The hope is that we will then back off.

I see no reason to give in to this ploy.

Scandal is real, but it is not the litigation that is the scandal (although there can indeed be scandalous litigation) it is the misery of schism that is the scandal.

As to the argument that lawsuits are a detriment to mission – many people have served mission who seemed detriments to mission – from invaders who brought Christianity in the wagons accompanying the soldiers, to ship's and company chaplains who ministered to the world of opportunists and entrepreneurs, to people who carried culture and faith as a potent mix and disregarded all local custom and life, to out and out racists who brought their racism with them, to, we might suppose, Christians who can't agree enough to stay in the same church and so find themselves at court. God's mission will get through even the worse of God's missioners and the Word will still be heard.

It may be of some comfort to remember that the child in the burning building, or her family, are not particularly interested in the color of the firefighters who run in to save her, or their gender, or sexual preferences, or their class or caste, or whether or not they are suing the pants off one another, only that they work together at that far edge of their other agendas, focused on the child.

It is at the far edge – the place where the real need to proclaim by word and deed the Gospel – that even those who are in court can find the focus that will eventually repair and reunite the peoples of the Church.

26 comments:

  1. "I see no reason to give in to this ploy." Fr. Harris

    Amen

    Nor any of the other "guilt" and "shame" mongering tactics used against fellow Christians/others.

    Leonardo Ricardo

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  2. Mark --

    This is a first rate piece -- many thanks!

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  3. And now you've been hurting poor dear little baby blue...

    Big boys like you!

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  4. As we can see by babyblue's comment to even engage in a real discussion about this matter is somehow beneath reasserters - their goals so lofty, their ideals so pure - where to begin with the rest of us. Or perhaps, to actually do so would mean they would have to watch their ploy unravel. Best if we all just "sigh."

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  5. Liberal and progressive Christians dislike the criticism that we are not too well versed or understanding of Scripture. The hope is that we will then back off.

    I find that statement quite silly, frankly, no one thinks that you will back off. For whatever reason

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  6. Pedro Concepcion29/7/07 10:51 AM

    I kept looking for the part where you show how those passages in the Bible have been misinterpreted or misunderstood. You didn't, and their traditional understanding stands.

    If you don't feel bad about lawsuits despite what the Bible says, that is fine.

    The fact is, the Episcopal Church and its leaders are going against scripture when it comes to lawsuits. That is plain as day. The vast sum of money being spent on lawyers is a scandal, the people in the pews need to know about it.

    So the essence of your essay, Mark, is "don't feel guilty". I don't think that has ever been an issue with the current group of church leaders, but fine.

    p.c.

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  7. There is another principle that is used in arriving at settlements, that is common in settling industrial disputes - and that is awarding decisions in favour of the party that can least afford to bear the loss. So often, in unfair termination of employment cases, a corporation is ordered by an industrial magistrate to make compensation to a dismissed employee, or to offer the dismissed employee some form of reemployment, even if the dismissal is technically justified. The rational for making such determinations is because the corporation is better able to sustain the award of compensation to its cost, than the employee is able to sustain the loss of compensation or employment. This principle seems to be based on a notion of fairness to the lesser party, than of absolute rightness at law. I wonder if such a principle could not apply in a Christian context, where love and grace are the basic units of currency in the kingdom of God. Grace, in the Bible, is always extended from the larger, more powerful entity to the lesser (ie: from God to us), and cannot be reciprocated by the lesser party, or demanded of one party by another - which would mean that it ceases to be grace.

    In many cases it seems to me, the larger entity (that is: ECUSA) has vastly more resources than the local parish, and is better able to withstand the notional loss of the real assets of the local parish, than the local parish. And I say "notional loss" because in many cases neither the diocese nor the national body has contributed any money towards the establishment or maintenance of the real assets. While the loss of such assets which come free of charge to the diocese is only a notional loss to the diocese, it is a real and material loss to the members of the local church, who have often contributed sacrificially to establishing and maintaining the real assets; and whose only desire is to adhere to the theological teaching of their fathers rather than following the theological innovations of the national church.

    It seems to me that the dioceses ought to be more proactive in being generous to parishes that can no longer abide remaining in communion with their local bishop, where the local bishop has drifted theologically from the Scriptural foundations upon which the local church was established.

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  8. It seems to me that introducing the truth that Christians are suing each other every day is a bit of a red herring. Sure there are Christians who break the criminal law (dishonest church treasurers and paedophilic priests for example) and must be prosecuted by the secular authorities; and sometimes the people employed by the secular authorities happen to be also Christian. But the cited bible passages in Matt 5, Luke 12, and 1 Cor 6 are not relevant because the aggrieved party is the Crown or the People. Just because the criminal acts may be performed by Christians in a church context does not make the Christian immune from prosecution by the State.

    I would have thought that the bible passages cited were relevent more for civil disputes, where both parties were Christians. So a Christian car dealer who sold a dodgy car to another Christian for example ought to be willing to settle out of court, and the aggrieved Christian has a process in Matt 18:15-17 by which he may seek recompense for his loss without resorting to suing in the civil courts.

    I also wonder about the accuracy of CB's statement on this topic in Fr Jakes blog that lay people are not being sued. In Dio Virginia I thought the law suit against the departing parishes by the diocese was extended to name individual lay persons. Are not members of a vestry still lay members of the congregation? Just because a lay person is elected to a vestry or parish council surely does not take away their lay status. This seems to be an extremely offensive abuse of power by the diocese.

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  9. Well, of course, an alternative would be for the departing congregations to negotiate the purchase of their facilities with the Diocese. I believe this is what happened with a church in the Diocese of Dallas and there was no litigation involved.

    Such a solution does not completely favor the diocese, since the market for church buildings is not exactly hot in most places, and the cost of maintaining the facility for only a handful of Episcopalians is ultimately quite prohibitive for the diocese. I suspect that if the dissenting parish put a good offer on the table it would very seriously considered by the bishop and the standing committee.

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  10. How ironic that only through Calvary Pittsburgh's legal action has the Church learned of the strategy and tactics of those who planned its replacement with their own.

    What the civil courts at least offer is the possibility of an impartial decision when two religious entities so entirely disagree. EPfizH

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  11. While TEC certainly has more resources than any single parish, it may be the other way around (or at least much more nearly so than for the cases in those industrial tribunals) for a particular diocese. Either way it would be the courts job to make the decision when negotiations have broken down.

    Jon

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  12. brian f - Please do not misquote me from another blog. I specifically stated that the vestry have a fiduciary duty to maintain church property in compliance with the cannons. There is no suit against them or any "lay person" for voting to leave the church. However, under VA. tort law they may not conspire to intentionally deprive the diocese of its property either. Further, they are named at this point in order to preserve the diocese's rights. The Va Diocese website explicitly states there is no intent to hold them personally liable.

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  13. Over a Jakes place, 'Mike in Texas' said:
    "So why all the fuss about Christians suing Christians?"

    To distract attention from the issue of Christians stealing from Christians?

    I concur.

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  14. What puzzles me about this whole debate is that it is not about "Christians" suing "Christians." For reasserters to appeal to scripture on this point is disingenuous, because their whole case is predicated on the notion that TEC is no longer "Christian."

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  15. The real issue is not the suit, it is the failure of bad, evil, sub-human liberals to understand that no less than God thinks the good, holy, homophobes should never be sued. Really, Mark, have you not paid any attention to the un-biased chair of the covenant committee?

    FWIW
    jimB

    There is no answer when asked, "what are you doing in my house?" or "What do you want with my wife?" An old Spanish proverb.

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  16. Brian F is correct that it is common in the secular world for companies to settle wrongful dismissal suits, even when there are ample and justifiable grounds for the dismissal.

    He is incorrect to suggest this is due to some principle that the employer "is better able to sustain the award of compensation to its cost, than the employee is able to sustain the loss of compensation or employment."

    The reason employers will settle such suits is that, in general, it is less expensive to settle than to see the case through. Certainly such a case can be lost, no matter how egregious the grounds for dismissal. But even if the court eventually upholds the dismissal, the cost of winning will often (usually?) exceed the grounds of settling.

    There neither is nor ever has been a principle that the wealthier litigant should give the poorrer litigant money just because one is wealthier and the other poorer.

    The reason for most wrongful dismissal settlements is simple expediency - not some never before expressed legal maxim created whole cloth to bolster the weak "reasserter" position.

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  17. Part of the fuss is that it is yet another opportunity for them to gleefully sing the anthem of victimhood. It is an anthem they have come to cherish and use for political sympathy.

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  18. Personally, I do wish that reasserters would abandon their property and start over. Then all you could do is revile them and utter all kinds of evil against them falsely on Christ's account. Your ability to persecute them would be severely limited.

    I am angered, though not surprised, at many of the commenters' lack of charity toward babyblue. It is, after all, her congregation that stands to lose its home over this, not yours. For her, this is a personal issue.

    In terms of the scandal, the scandal was the actions of the Episcopal Church in consecrating an actively gay bishop and allowing same-sex blessings. This was the reason the presiding bishop needed to step down from his leadership in ecumenical discussion with the Roman Catholic church within ARCIC. This is the reason behind the condemnation of the Russian Orthodox church, who found our position "profoundly anti-Christian and blasphemous." The Windsor Report noted that "the overwhelming response from other Christians both inside and outside the Anglican family has been to regard these developments as departures from genuine, apostolic Christian faith." The primates warned us that "this will tear the fabric of our Communion at its deepest level, and may lead to further division on this and further issues as provinces have to decide in consequence whether they can remain in communion with provinces that choose not to break communion with the Episcopal Church (USA)."

    Most of the Christian and Anglican world considers the recent actions of the Episcopal Church as apostate, and that is the scandal. It really is as simple as that. They are not being mean-spirited in thinking so; it is simply their perspective, based on the scriptures they still consider the Word of God, and thousands of years of church tradition. Of course you disagree, but that is hardly the point. The perception is there, and the Church's subsequent actions have hardly managed (and barely attempted) to convince anyone otherwise.

    What these conservative churches are doing is in fact what most Christian churches would do. Why should they stay in a denomination they can no longer support or take pride in? And why should they willingly hand the property over for purposes they consider apostate, despite what your canons say? After all, the Episcopal Church didn't build these buildings or pay for them; the local congregations did, and then the Episcopal Church put their stamp of ownership upon them. It appears to me that your canons exist to maintain order and status quo, not establish justice.

    If the Episcopal Church could at least acknowledge their role and responsibility for this scandal (even if they feel what happened needed to happen), this in itself would go a long way. But I'm not holding my breath on this one.

    BTW, I agree with Pedro Concepcion.

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  19. My position for TEC’s inclusiveness and against the lawsuits is based on Jesus’ response when he was labeled a blasphemer and they came after his body. He rebuked Peter for trying to defend him. His death and resurrection revealed the schemes of his enemies. His statement that he came to bring division is being fulfilled. His statement that the gates of hell will not prevail against his church is also being fulfilled.

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  20. The fundamentalists began the legal process when they attempted to transfer property they did not own to themselves. (I believe that legal scholars refer to this as "stealing.")

    For them to complain now calls to mind the old joke about the man who murdered his parents and then demanded mercy on the grounds that he was an orphan.

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  21. Malcolm+ - I used to work in the mining industry and was involved in a few unfair dismissal cases myself during the 1980-90's. It was common for industrial magistrates to make orders against the mining companies regardless of their rights under law, in favour of the employee, specifically because the corporations were regarded as better able to sustain the loss against it than the employee was if the magistrate awarded against the employee.

    As far as I am aware, this principle seemed to be only applied in the mining industry in Australia during a time of high union activism. Nevertheless - it demonstrates that there was more graciousness towards a lesser party in a dispute in a secular context than there is today within a supposed Christian organistion.

    And it also seems that noone has really dealt with the issue of equity - who contributed the money in the first place; and what was their understanding of the Christian gospel and mission - it seems to have changed considerably over the last few decades. Is it fair that the assets built up by their sacrifices are purloined into ECUSA's post-modern agenda?

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  22. Seems to me a more likely explanation is that the courts made awards based on the facts of the case. Despite there being grounds for a dismissal and even a proper procedure, the courts have tended to have some sympathy for plaintiffs in these cases.

    Courts may well have awarded partial settlements in favour of plaintiffs based on any number of reasons, including a belief that the employers case was not so well founded as they thought.

    But the fact remains that there is no legal principle that the courts should find in favour of the party with the least financial resources.

    And likewise, it is still the simple fact that employers will usually (indeed, virtually always) settle a wrongful dismissal suit, not because of any perceived weakness in their position, but simply because settling is usually cheaper, even if you eventually win. An employers victory in a wrongful dismissal case is generally Phyrric.

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  23. Oh. And "who committed the money initially" were people who believed they were contributing to the Episcopal Church. I doubt they had any intention of contributing to the upkeep of the Archbishop of Abuja.

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  24. pedro misses the point. as does, alas, mark harris.

    sorry.

    i think Paul is dead on, and right. the church is the judge of such things, and Christians should not have need of recourse to secular courts to receive satisfaction from each other. as Paul says, we are to judge the world, why not such petty cases?

    in the Episcopal Church property cases, the church has, in fact, issued its judgment. the question is, when the people in the building (the conservatives, mind you) refuse to recognize that the very "we" who will judge the world, have judged against them, what next?

    i invite the conservatives to explain how they want this to work out in practice. if, as they rightly say, we are to judge the world, then why do they not submit to the judgment of the church they are a part of and (in the case of clergy) sworn to obey?

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  25. Most of the Christian and Anglican world considers the recent actions of the Episcopal Church as apostate, and that is the scandal. It really is as simple as that ... Of course you disagree, but that is hardly the point.

    Sigh.

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