Community property?

The property battle between denominational bodies and the local churches that disaffiliate from them is heating up-and the list of congregations that suddenly find themselves homeless has grown longer.

Less than two months after the Georgia Supreme Court ruled in favor of the denominational bodies in two church property cases in that state, a county circuit court in Virginia ruled that seven more congregations must leave their properties to the Episcopal Church (see "Court order," Jan. 28). Two, Truro Church in Fairfax and The Falls Church in Falls Church, are among the most storied Episcopal churches in the country.

The seven Virginia congregations had disaffiliated from the Episcopal Church because they were concerned it was no longer committed to biblical and Anglican orthodoxy-as evidenced by its divergence from the global Anglican Communion on the matter of gay ordination. They affiliated instead with the Anglican Church of North America. "The core issue," according to Rev. John Yates, rector of The Falls Church, is not physical property but "theological and moral truth and the intellectual integrity of faith in the modern world."

Free to choose

2012 began with a bang for defenders of religious liberties. The Supreme Court issued on Jan. 11 a surprisingly robust (and surprisingly unanimous) defense of the right of churches to hire and fire ministers without government interference (see "Rights rulings," Jan. 28). Even in cases where an employee's responsibilities are only marginally ministerial, the court affirmed a "ministerial exemption" from federal, state, and local employment anti-discrimination laws. The First Amendment implies, the court held, that religious communities should be free to choose who will represent their beliefs and carry forth their mission.

When Cheryl Perich, an instructor at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., sought to return from a lengthy absence after she was diagnosed with narcolepsy, the school had hired another teacher for the year and expressed doubt whether she, given her condition, could fulfill her teaching duties. When Perich threatened to sue the school for violating the Americans with Disabilities Act, she was fired for defying a tenet of the church that members should seek to resolve their disagreements internally.

Some have questioned the church's decision on moral grounds. Legally, however, the implications were far-reaching. Could the government use anti-discrimination laws to force the Roman Catholic Church to hire women priests, or Southern Baptist Churches to hire openly gay pastors? While the Supreme Court historically has given churches wide latitude to govern their own internal affairs, it had never established a ministerial exemption to anti-discrimination laws.

Under the new ruling, a staff member can still sue a church for discrimination, but if the church can plausibly claim that the employee advances its religious mission even to a small extent, then the courts should not second-guess the church's determination. This affirms, says Richard Garnett, professor of law at the University of Notre Dame, that "governments are not permitted to resolve essentially religious disputes and questions."

Ironically, on the very next day, a New Jersey judge ruled that a tax-exempt retreat pavilion in Ocean Grove affiliated with the United Methodist Church that refused to host a same-sex civil union ceremony had violated the state's Law Against Discrimination. While the judge acknowledged in his ruling that it is "fundamentally a religious organization" which "opposes same-sex unions as a matter of religious belief," the First Amendment, he wrote, should tolerate "some intrusion into religious freedom to balance other important societal goals."