Deference vs. Neutral Principles January 23, 2013 News By G. Jeffrey MacDonaldTLC Correspondent Plaintiffs who sued the Episcopal Church in January for control of South Carolina church properties could ride to victory on the coattails of a 2009 decision involving a breakaway parish, according to two attorneys experienced in church property cases. Both Lloyd Lunceford of Baton Rouge and Martin Nussbaum of Colorado Springs cite the All Saints Church at Pawleys Island case, in which the South Carolina Supreme Court ruled in favor of a breakaway parish. Parameters established in that case could now help a larger group of plaintiffs prevail in a South Carolina Circuit Court, the lawyers said. But Nussbaum cautions that any plaintiff victory might be short-lived since the U.S. Supreme Court would likely overturn it if the case were to go that far. The suit, brought by congregations representing about 22,000 former Episcopalians, stems from the Diocese of South Carolina’s decision in September to leave the Episcopal Church. Exiting congregations are now suing to keep the Episcopal Church from gaining control of the diocese’s identity, as well as its property and that of its parishes. “It’s possible that the secessionists will have some success for some time, as long as they’re in the South Carolina courts,” says Nussbaum, an attorney with Rothberger Johnson & Lyons. “If it goes over to the federal courts … they’ll lose.” In most church property cases, courts have said congregations departing from a hierarchical denomination, such as the Episcopal Church, may not retain usage of local properties since they’re effectively held in trust for the wider church. But that legal principle of assigning “deference” to the higher entity did not guide the decision in the All Saints case. Instead, justices ruled church property matters should be decided by “neutral principles” of law, which bring other areas to bear, such as state trust law, as justices sort out who owns what. This “neutral principles” approach gives local bodies a chance to succeed, Lunceford said, if they can show properties were not in fact held in trust for a denomination. “When neutral principles of law are applied … local churches often win,” says Lunceford, author of A Guide To Church Property Law and an attorney with Taylor Porter. “The outcomes vary. It depends on the facts. … The national denomination would like to be able to produce any potential writing by the diocese that would acknowledge they are holding parish property on behalf of the denomination.” Nussbaum agrees that plaintiffs might have a better chance in South Carolina than they would in at least 10 other states where deference principles have held sway. But, he says, the Episcopal Church would almost certainly ask the U.S. Supreme Court to review any defeat that might come out of South Carolina. “It’s difficult to imagine that they would permit a secessionist group to run roughshod over their constitution and canon law in the way that will attempt to be done here,” Nussbaum says.