Most kids in High School take a class in Civics or U.S. History. And most of those kids will learn about the United States Constitution. They’ll learn that the Constitution was amended by the Bill of Rights, and they’ll learn that the Bill of Rights is the name of the first 10 amendments to the Constitution. They’ll also learn that one of those amendments provides that Congress may not pass any law concerning the establishment of a religion. This is formally known as the “establishment” clause. It’s more commonly known as “separation between Church and state.” Less know, but equally true, is the fact that the California Constitution also prohibits the California State Government from making any “establishment” of religion. This is found in the California Constitution at Article I, section 4.
This separation is so firmly embedded in our perspective that the thought of having a church that is favored by the government is completely foreign to us. But not every country takes this approach. For example, some countries have supported a state-favored church with tax money. This can obviously provide such churches with an enormous benefit with respect to operational costs.
In the United States, the separation between church and state is almost taken for granted. Most people in this country never even think about how the establishment clause might affect their daily lives. Yet the establishment clause can have a real effect on peoples lives right now.
Here’s an example. Suppose a local congregation owns a church building on land that is also owned by the congregation. But suppose the congregation encounters a disagreement over a point of church beliefs. If this disagreement becomes severe enough, then it’s possible that the congregation may split. Each side could claim it holds the correct beliefs. If the dispute becomes sufficiently severe, there could literally be a separation of the congregation. If this were to happen, each side might claim that it is entitled to the church-owned land and building.
What happens if the dispute becomes severe enough that the dispute ends up in Court? The result can be surprising. In such a situation, a court would literally be called on to make a decision as to which group is entitled to ownership rights as to church property. However, the courts are governmental entities. Even though a court isn’t a legislative body, it is still one of the branches of government and courts can actually create law where none existed before. As a result, courts are subject to the establishment clause. This means that the courts can’t take sides, nor can they favor one religion over another. Where a “heierchal” church structure exists, then in appropriate circumstances a court may look to the decision of the church heierchary for determination as to which group represents the “true” church. And once the “true” group is determined, then a court may award the church property to the “true” group. In other cases, ownership of the church building and property may be determined by the bylaws of the church, the deeds to the property, and other key documents relating to church governance. These principles are generally discussed in Metropolitan Phillip v. Steiger (2000) 82 Cal. App. 4th 923.
What can be done in advance? Local congregations that own real property may be able to avoid later problems by deciding in advance how they are going to hold title to their church property, the nature of their relationship with a larger church organization, and how they plan to handle any potential disputes concerning ownership and handling of church property.