Big Church Vs. Little Church
by Chap Petersen
Last Thursday, my law firm filed a First Amendment appeal with the Virginia Supreme Court to protect a small congregation in Fairfax County at risk of losing a $4 million dollar property due to an archaic legal principle favoring national denominations, which neither own nor invest in their members’ properties.
Shalom Presbyterian Church was an independent church formed by Korean-speaking immigrants in 1988. Soon after forming, it bought land to build a future church home. As with most small churches, the deed to that land was held in the name of “Trustees” for the congregation.
A decade later, Shalom Church joined a “regional presbytery” of Korean-speaking churches affiliated with the Presbyterian Church of the USA. They did not retitle their property. Nor did they accept any financial benefits. The engagement was merely social.
In 2007, the Trustees borrowed $2.0 million to build a new church sanctuary. The mortgage payments were solely made by the congregation, who also paid for the insurance and upkeep. The Deed of Trust only mentioned the congregation and its Trustees.
In 2016, the Trustees transferred title to a newly formed corporation, solely owned by church members. Again, the denomination had no role.
In 2022, the congregation was informed by the denomination that their pastor of 34 years was “unqualified” for the position. They decided to break ties, which led the denomination to claim that it “held” the church property “by trust,” pursuant to its bylaws. We filed suit in Fairfax County Circuit Court and the trial judge (logically) decided that my clients, as the title owners, had sole rights to the property.
Good guys win again, right?
Not so fast. The denomination appealed and the Court of Appeals ruled last month that the Circuit Court “lacked jurisdiction” to confirm our client’s ownership, due to the legal doctrine of “ecclesiastical abstention,” which means the Court will not “interfere” in church disputes. In essence, the property rights of the church members (and Corporation shareholders) could be superseded by a decision of The Big Church, which gets to interpret its own Bylaws.
This preference for Big Church protocols is a plain violation of the First Amendment’s Establishment clause (“Congress shall make no law establishing religion”), especially since the U.S. Supreme Court has held that property disputes amongst religious bodies must be resolved using “neutral principles of law” that do not favor one side — to do otherwise is to “establish” a religious body.
Two hundred and fifty (250) years ago, George Mason of Fairfax County drafted “the Virginia Declaration of Rights” which held (among other things) that the State would no longer establish religion but rather would allow each church to survive on its own merits. His handiwork eventually became the Virginia Statute of Religious Freedom and, of course, the First Amendment.
The original inspiration for Mason’s writings came from the prosecution of the “unlicensed” Baptist minister Jeremiah Moore. Defended by attorney Patrick Henry, Moore was acquitted in 1773 by a Fairfax County jury which refused to submit to the dictates of the Church of England. Could Fairfax County inspire another chapter in the fight for religious freedom?
Chap Petersen, a former Virginia state senator, practices law in Northern Virginia. This column has been republished with permission from his Substack account, The Virginia Attorney.
