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:
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.