Litigating the Schism and Reforming the Canons: Orthodoxy, Property & the Modern Social Gospel of the Episcopal Church

The Episcopal Church (PECUSA) of the past forty years has become progressively more liberal, through support for civil rights— women’s ordination and most critically the ordination of gays. Its support for gay rights has led dissenters from liberalism to leave the Episcopal Church and seek alliances with conservative Anglicans overseas. The parties have pursued litigation in civil courts as they seek to determine whether the pro-PECUSA loyalists will keep their churches or whether the anti-PECUSA dissenters will take all the church property when they leave. This Article examines the rise of Episcopal Church property litigation generated by theological conflicts between the church’s liberal and conservative wings. These disputes are taking place as the result of historical changes. These include a changing social gospel stemming from newer theological developments, one that has parallels in perspectives on constitutional adjudication—process theory, critical theory and a “living constitution.” The Supreme Court’s modification of the constitutional standards courts might use in hearing the disputes then influenced adjustments to the PECUSA’s strategies for claiming ownership over local church property. This Article offers some unique perspectives on matters not previously addressed in the scholarly literature: the significance of property theory grounding the disputes in competing notions of property and identity. It exposes the limitations of using civil courts to resolve what should instead be resolved “in-house.” Finally, this Article explains how the Episcopal Church canons might be reformed to create an ecclesiastical property court for resolving these disputes, and offers a model for explaining how such a court might work. Cite as 42 Golden Gate Univ. L. Rev. 151 (2012)