Churches and Courts

by Philip Jones

Bentley v Anglican Synod of Diocese of New Westminster (2009) Supreme Court of British Columbia, Canada

This case concerned a dispute over the property of four parishes in the Anglican Church of Canada.  The parishes were incorporated and, qua corporations, were the legal owners of the property.  The claimants (including Bentley) were the vicars and lay ministers of the parishes, who were ex officio the trustees of the parish corporations.

The claimants and their congregations objected to the decision of their bishop and diocesan synod to authorise the blessing of homosexual relationships.  For this reason, they wished to secede from the diocese, while retaining control of the parish property. 

The legal argument for the claimants was that the parish property was held for ‘purposes consistent with historic, orthodox Anglican doctrine and practice’ (para 258).  The bishop and the synod had departed from these purposes, but the congregations of the four parishes continued to respect them.  Control of the parish property should therefore be turned over to the congregations.

This claim failed.  The court held that the parish property was not held for the purposes suggested by the claimants, or for any particular purposes.  Instead the property was held subject to the constitution of the Church of Canada.  Under the constitution, the parishes were not free to deal with their property as they pleased, but were subject to the control of the diocesan authority. 

Alternatively, the court held that, even if the property was not subject to the constitution, the court could not have implied a ‘purpose’ trust in the terms suggested by the claimants.  The concept of ‘historic, orthodox Anglican doctrine’ was too uncertain and subjective. 

Also, the evidence did not show that the congregations of the four parishes were ‘orthodox’, while the bishop and the synod were not.  Under the constitution, the definition of ‘Anglican doctrine’ was the responsibility of the Church’s General Synod, and the General Synod had not held that homosexual relationships were contrary to its doctrine. 

The claimants’ assertion that they represented ‘traditional’ Anglicanism was also undermined by statements from pan-Anglican organisations affirming the Canadian Church’s continuing membership of the Anglican Communion and deprecating the claimants’ own actions. 

Following the Bentley case, Professor Margaret Ogilvie reviewed the British and North American case law concerning disputes between members of the same Church in ‘Judicial Restraint and Neutral Principles’ Ecclesiastical Law Journal, May 2011, p.198.

The modern case law is still overshadowed by Free Church of Scotland v Lord Overtoun (1904) Appeal Cases 515, though that case itself followed a line of 19th century cases. 

The case arose when the Free Church decided to unite with another Church.  A small minority of Church members opposed this decision and refused to join the new Church.  They claimed that they alone now represented the ‘continuing’ Free Church.  They therefore claimed the exclusive right to the property settled on the Free Church in the early 19th century.  The House of Lords controversially upheld their claim, and has been criticised for this ever since.

Professor Ogilvie suggests that the Free Church case marked a turning-point in the approach of courts to disputes within Churches:

(1) the original approach was for the court to identify and enforce an ‘implied doctrinal trust’ of the Church’s property (in the Free Church case and before)

(2) the post-Free Church approach is for the court merely to review the decision of the Church authority, to ensure that it has acted within its constitutional powers (as in Bentley and other modern cases). (p.205)

She characterises (2) as the ‘neutral’ approach.

There is difficulty with this analysis.  The earlier case law (at least, the British case law) strongly emphasised the court’s religious neutrality in disputes between members of a Church.  Lord Chancellor Eldon said that ‘the court could not take notice of religious opinions … to decide whether they were right or wrong’ (Craigdallie v Aikman 3 English Reports 601 at 606).  His successor Lord Halsbury said ‘a court of law has nothing to do with the soundness or unsoundness of a particular doctrine’ (Free Church case, at 613).  The only limit to the court’s neutrality is that it must be satisfied that the religious doctrine is not unlawful.

The property of a voluntary Church is held on one or more trusts.  That was the case both in Free Church and in Bentley.  The courts’ function in relation to a contract or trust has never changed:  it is to give effect to the intention of the people who made it.  As Lord Eldon observed, if a trust provides for the removal of a trustee who changes his religious belief

 ‘if the question comes before this court, in the execution of a trust, whether the trustee has been properly removed [for religious reasons] … ex necessitate … the court [must] enquire, what was the religion and worship of the society … to ascertain whether or not the charge is substantiated …’ (Attorney-General v Pearson 36 English Reports 135 at 155).

In other words, if the trust imports a religious doctrine into its terms, the courts will have no choice but to declare what that doctrine is, in order to give effect to the settlor’s intention.

Thus the difficulty in the Free Church case was not caused by the House of Lords’ lack of ‘neutrality’, but by the intention of the donors of the Free Church’s property.  As Lord Halsbury observed, these gentlemen ‘left their claim, declaration and protest to stand for all time … as a profession of their faith’ (p.613).  The secular court was bound to give effect to this.

Law reform in the 20th century has made it easier for courts to vary trusts and so override antiquated provisions.  However, the difficulty in the Free Church case would have been avoided if the trusts had conferred power on the Church’s members for the time being to determine the religious belief of the Church in accordance with a constitutional process.

Lord Eldon said in Craigdallie that ‘If it were distinctly intended [in the trust] that [the Church members] should direct the use of the property … then the court might act upon it’ (p.606).  (In the Free Church case, a minority of the Law Lords apparently held that the trusts did empower Church members to modify its doctrines.)

In the 20th century, trusts of Church property have been careful to avoid importing religious doctrines.  The Anglican Church in Wales has a trust dating from 1919 which is armour-plated against the possibility of a dissenting minority gaining control of the Church’s property.  The Church in Wales’s property is held ‘upon and for such trusts, objects and purposes … as the governing body [General synod] shall from time to time determine’.  There is no reference here even to the Church in Wales (only to its governing body), let alone its religious beliefs.

The narrative in the Bentley case suggests that the Canadian Church’s trusts and constitution are contemporaneous with those of the Church in Wales, and motivated by a similar desire to avoid a repetition of the Free Church case.

The ‘traditionalists’ in Bentley were therefore bound to fail.  But that does not reflect a more ‘neutral’ stance by the courts.  The courts interpret trusts and contracts as they always have done.  It is the Churches that have changed, not the courts.  Church trusts now confer power on the Church’s members for the time being to determine its religious belief in accordance with a constitution.

This means that the Church is no longer, as J.N Figgis put it, ‘bound … rigidly by the dead hand of its original documents’.  The court’s function is therefore limited, as Professor Ogilvie says, to a form of judicial review.

Is this a good thing?  Figgis’s criticism of the Free Church decision was that it denied the Church ‘any real and inherent power of development … the power of defining and developing in its own doctrine’ (Churches in the Modern State (1913), pp.20-21).  One can agree that antiquated trusts which tie the Church to the past are undesirable, and that secular courts are not the best places to discuss religious doctrine.  However, it is most unlikely that Figgis would have approved of the ‘development’ that precipitated the Bentley case, nearly 100 years after he wrote.

Constitutional process has a valid, indeed essential, function in the Church, but it still lacks the fullness of authority necessary to genuine development.  By itself it can lead to fragmentation and schism, the opposite of development.  Faith is released from the archaic control of long-dead founders (as in Free Church) only to become the captive of what Lord Eldon called ‘the sense of the existing majority’ (Pearson, p.150), which is inevitably conditioned by the prevailing secular cultural values (as in Bentley).