A House Divided (4D): Is the Pacific Union too Big to Fail?

(This is article 9 in a 9 article series by Adrian Zahid)

Every year denominations that have irreconcilable differences over doctrine and practice end up in the United States Court system. Here the courts wrestle over the apportioning of the assets and property of the church either to the breakaway faction or the denomination. The courts apply sets of principles to determine how best to divide up the church property which can include churches and other buildings associated with the denomination. While the current consensus among the observers in this conflict is that neither side [GC/PUC] is going to take this to court the possibility of going down that route is there. In an interview, regarding the North American Division’s view on compliance, Dr. Jackson did not rule out the court option although he stressed that such a route would compromise mission. In this article, I will first explain how the US Courts reach their decisions and then describe what would happen if our church decided to split and go to court.

Understanding the US Courts and their Precedents

The United States court system is comprised of both a Federal system that is the third branch of the Federal government and a state system in which the states have their own courts that determine matters in their regional jurisdiction. Because denominations that wish to incorporate have to register with the both the state and the Internal Revenue Service (IRS) the entities usually end up in state courts but can also end up in federal courts as well. If either party is not satisfied with the lower court ruling it can appeal to successively higher courts of Appeals culminating in the State Supreme Court for the state system or the United States Supreme Court for the federal system. For most matters pertaining to State law, the State Supreme Court’s opinion is final. However the United States Supreme Court is the final appeal in the US Courts system including that of the States.

After a judge has heard a case in which both opposing parties have presented arguments and written briefs in support of their case, the judge then takes into their consideration past judicial precedents. Precedents are cases that other judges and the Supreme Court have heard and rendered judgments on cases in the past using principles that may apply to the current case at hand. Usually the judge will also produce a written rationale along with the judgment. This written rationale lists the rules and principles used to reach the decision. It is this rationale along with the court transcripts that are reviewed by the Appellate courts for soundness of judgment and also to ensure that the correct process was followed to reach the verdict. Sometimes a judgment can be found to be in error because the judge made a mistake in the trial regarding the presentation of evidence or made some other procedural mistake that harmed the integrity of the trial. Other times the judgment can be reversed if the judge misapplied the principles or rules or made some other fundamental error, which in the opinion of the appeals court, caused the wrong decision to be reached. If the parties appeal to the US Supreme Court, and it decides to hear the case, the Supreme Court may reverse the Appeals Court and find the original judgment to be correct or it may refer it back for consideration of some point that was missed, or it might decide the case and render a different judgment.

The Role of the US Constitution in Church Property Disputes

The US Constitution’s first amendment establishes the freedom to exercise religion and the non-interference of government in the expression of it. This means that the courts are constrained from making judgments regarding doctrine of a church or determining who is correctly or more closely following the church founder’s original tenets of faith. In theory, this is easy to do but as you will see, in practice it is very difficult to reach decisions that do not intrude into the practice of faith. Consequently, the courts are reluctant to take on cases and prefer that the church solve its own problems outside of court interference. However, when churches are unable to reach an amicable decision, the courts have to make a decision since property is within their jurisdiction. There are many cases in church property law cases that have been decided and the court decisions have been mixed in their application of consistency. Rather than go into every nuance and detail on how courts apply the principles, I’ll give you an overview of the two main precedents that they use to decide cases. You may access several law review articles in the endnotes of this article to read in more detail if you would like regarding the constitutional implications of church property disputes.[1]

Various denominations are structured differently, as we noted in the first article of this series. Denominational structures in Protestantism range from Congregational to hierarchical. As I mentioned before, the first rule of the courts is to stay out of a denomination’s debate on doctrine, polity, or practice. They therefore try to determine the structure of the denomination. If they determine that the church is hierarchical they then defer to the church’s “highest tribunal” for its judgment and allow it to decide on the dispute. In these cases, if the “highest tribunal” determines that the church property belongs to the denomination, then the courts respect that decision and enforce it as such. If the denomination however, is congregational in nature, then the court seeks to determine if there is a majority faction within the local church that is splitting and awards the church to the majority faction. The cases that rely on this precedent rely on the case known as the Watson v Jones.[2]

Since the 1960s, the administrations of most denominations have become more theologically liberal than their congregants and this has caused friction between the members and their denomination’s leaders. As such, the church disputes that have reach the courts have experienced a different set of rules or principles applied to their cases. In this modern opinion, the school of thought is that the courts should not rely on the church’s documents, structure or polity as such determinations may inadvertently make the court take a side in a religious debate. A good example of this is the issue of women’s ordination or the debates over homosexual clergy in Protestantism. If the denominational leaders are pro-women’s ordination and the local church is anti-women’s ordination, and the courts decided to rely on the church’s internal polity or governance procedures, it might reward the pro-women’s ordination faction by default and thus make a ‘religious’ determination that the Constitution explicitly forbids. Therefore, some courts use what is known as the “Neutral Principles” test to determine which side should get the property. Neutral principles rely on the church’s founding documents filed with the state regarding the deeds to the property. If the deed is written in the name of the denomination, then the court awards the property to the denomination. If the deed is written to in the name of the local church, then the local church gets the property, and a majority vote on the issue determines who owns or has right of use for the property. The cases that rely on this precedent are from the Jones v Wolf case.

Now every denomination is unique and their circumstances are unique as well. And every case is not as clear cut as we would hope. In the case of hierarchical churches like the Seventh-day Adventist church which has several levels in its organizational structure complete with a “highest tribunal,” it would seem that the courts would quickly defer to the General Conference Session to rely on the GC Session’s determinations regarding its church property and right of use. This view has been challenged in courts in the church disputes of other denominations where collusion or malpractice has been alleged regarding the top leadership of the denomination. If the church’s leaders cheated or in some way made the highest authority render an unfair decision, then the Courts have applied the 14^th Amendment of the Constitution which protects its citizens from being deprived of their equal protection rights to due process.

This is why Dr. George Knight’s allegations regarding collusion and coercion of the Session’s Vote in 2015 by the denomination’s top leader, Pastor Ted Wilson are lethal. By casting the vote into doubt, this opens the door to courts questioning whether the rights of congregants were constitutionally deprived of their rights and thus render the decision(s) of the highest authority of the denomination void. Knight’s latest Call to Action raised doubts again regarding the way that the Annual Council is conducting its business.

Compounding this issue is the way the Seventh-day Adventist church is legally incorporated. If the General Conference were to own everything in the Seventh-day Adventist church, then they would be at legal and financial risk for the mistakes of the few, such as a slip and fall of some member at a local church in Alaska or a class-action suit against a pastor who sexually abused multiple members or children at a conference camp. Early in Adventist history, all the property of the church was under James White and a few other men. Back then he felt that such a risk was too great and his view was vindicated when Dr. Kellogg departed from the church and took with him an entire institution. Thus, the units of the General Conference which are the unions are ecclesiastically organized under a central organization of the GC but have to be legally autonomous to contain the risk. Therefore, to minimize and limit such a risk, the church has incorporated each union separately so that these risks are self-contained and self-limiting and so that the action of one or a few do not take down the entire denomination. Thus, there is a difference between how our unions are ecclesiastically organized and legally incorporated. Our ecclesiastical organization involves internal denominational polity and policies that are derived from a representationally-based system of governance. Each union is a unit of the General Conference and each union sends delegates to the Session to determine the policies and enforce its provisions in practice. Legally however, in our relationship to the State, each union is separately incorporated to minimize the above-mentioned risks. This means that in the carrying out of our mission, each union is delegated the power by the General Conference to do so with the understanding that it is a trust. There is nothing legally-speaking that is preventing an entire union from walking away from the church-at-large, if it one day decided that it wanted to, provided that its constituency voted to do so in a regularly announced meeting.

If you recall, I quoted the General Conference Secretariat saying this regarding the constitutional issue in the first article of this series,

“The danger to our unity lies not primarily in who we ordain, or what credentials are given to them. The chief danger lies in accepting the possibility of unilateral action. That has potential implications which go far beyond this immediate issue. Yet if we were to sacrifice the overreaching principle of representative, collegial, consensus-based decision making—if we were to accept that organizational units can act unilaterally— then our whole ecclesiastical polity and system of church governance would be in danger of breaking down. Unions would decline to follow division’s guidance; conferences will ignore unions when it suits them; local churches would flout conferences or missions.

We would do well to look to the wider principles of interconnectedness and interdependence. They have been the basis for 150 years of powerful proclamation of the gospel and prophetic truth, of extraordinary service to humanity, and of remarkable growth. They should not be lightly abandoned.”

If the General Conference were to accept the argument that the Unions are autonomous ecclesiastically and therefore can act unilaterally, the whole system of representationally-based decision-making breaks down. And just as the unions are separately legally incorporated, so are the conferences, and the local churches. If each entity starts acting outside the inter-dependent process that the church has embraced since 1903, our entire ability to carry out our mission to spread the Three Angels’ Messages and make disciples breaks down.

In their rationale to go contrary to the General Conference, the Union General Counsel seemed to rely on an ecclesiastical precedent. He made his determination that the Union Constituency could act contrary to its own By-laws and out of harmony with GC Policy and its By-laws contained in the model constitution for unions, using the example of the GC Session violating its own By-laws by pushing forward some election decisions to the next meeting rather than resolving them at the Session. The Session however is not the Union and its time to deliberate is limited and its quorum has to leave once the Session is over to all parts of the world. The Session was running short on time, in 2010, and it voted to push forward some associate department elections to the Annual Council meeting. It was a violation of its own By-laws, as the By-laws state that such decisions should be made in a Session. However, the Session’s power exceeds that of its own By-laws and it therefore pushed those decisions forward. The unions however do not face the same kinds of restraints as its constituency members are local and can be called back easily for another meeting. The union constituency sessions are also not equal to the General Conference in Session. And, those union By-laws are built on the Constitution and By-laws of the General Conference and its model constitutions for each union are not amendable or changeable. Finally, even if such a decision to push forward a vote or to suspend the By-laws were allowed for the unions, they still could not act or vote contrary to the General Conference Working Policy. Such a vote on women’s ordination is barred by various policy sections and Dr. Cooper recognized this fact in his paper at the London Unity Conference.

If the Union and the GC ended up in court, in their decision, the US Courts should automatically defer that rationale to the determination of the church’s highest authority using Jones v. Wolf because the union counsel based its determination on ecclesiastical precedent. However, if the General Counsel for the Pacific Union and the executive team of the Pacific union made its determination based on its legal incorporation and asserted its independence using that rationale, then it truly made an irrevocable autonomous decision that threatens the General Conference Session’s authority and invites the US Courts into the debate. If the union executive team used the legal incorporation to assert their independence, then by seeking the protection under State laws, the Pacific Union have asserted its independence legally and therefore potentially severed itself from the denomination. The courts then will not rule on anyone’s version of history, or what Ellen White wrote regarding the Session’s authority. Knight’s claims of collusion and coercion cast doubt on the legitimacy of the Session’s decisions and open a way for US Courts to find jurisdiction in this dispute and they may determine that Jones v. Wolf does not apply to this case based on the allegations of collusion. They will then decide using neutral principles and in that case the union’s assets will be divided as its constitutional documents in its state registration say they should be.

The legal risk that the General Conference faces in this situation is immense as other unions too can assert their independence the moment they disagree with a Session decision. Keep in mind that the Pacific Union acted before TOSC and the Session Vote. Therefore, it has no ecclesiastical precedence or an ecclesiastical decision by a higher body that it went against in its decision. Thus, at the Session, the Pacific union officers may have deliberately chosen to not get into any constitutional jurisdictional debates at the GC Session in order to preserve their options in court.

The hidden thrust of this constitutional problem is that on the surface it appears to be an ecclesiastical dispute over policy. While we agree that policy is the result or fruitage of unity, we must understand that to limit this to a mere policy decision is fraught with danger for several reasons:

1. The Pacific Union has asserted its ability to act unilaterally and this assertion cannot be corrected by referring to policy. They have rejected the statement on the authority of the Session and on policy that Pastor Wilson and Dr. Cooper read to them at the PUC Constituency Session in 2012. Pacific Union Conference Executive Secretary Brad Newton blogged in 2010, that the General Conference Session in 2010 “gender-referenced ordination passed for the very first time…” with its decision in 2010 to ordain female deaconesses.[3] It is unclear how he went from the conclusion that “the ordination of women is moot” to the one he advanced at the Pacific Union Constituency just two years later.
2. The term “ordination without regard to gender” opens the possibility that other self-declared genders may be considered eligible for ordination. The church is still working through its policy on sexuality and gender and such a broad term “without regard to gender” may lead some unions using the same unilateral arguments to find license to approve ordinations of other genders in the future.
3. The Unions have it both ways: they can argue on policy in public while maintaining the threat of legal separation over the General Conference in private. In the entire Year of Grace, the Pacific Union has not released a statement taking the option of going to court off the table.
4. The rationale advanced by the Pacific Union on its official website is contrary to doctoral dissertation level research done into the historical-theological-organizational and reorganization foundations of our church. This false narrative is harmful to the members and is currently officially unchallenged.
5. The ecclesiastical precedents of this decision will reverberate and manifest themselves in countless other disputes.
6. The Session’s authority is being nullified and the General Conference Executive committee is faced with negotiation under threat rather than a conversation.

If the General Conference executive committee takes a policy oriented approach to the issue of compliance on Monday, they may need to address several issues:

1. The need to clarify the role of policy and obtain written agreement from the Unions regarding the role of policy.
2. The need to clarify that the Union vote [PUC] was not based on its legal incorporation but was based on ecclesiastical procedure and ecclesiastical constitution.
3. Determine if the union General Counsel’s application of principles or rationale was wrong or unconstitutional and therefore the union constituency was misled and its vote is voided.
4. If the vote was wrong then the ordinations based on the union vote are not recognized as valid and will never be recognized as such because the underlying decision was unconstitutional.
5. Such a decision in the future needs to be made in coordination with the GCE and GC Counsel and Division representatives. Failure to do so may perhaps result in the additional sanctions both to the leadership team and the union itself.
6. If it is determined that the Union executive leaders base their rationale on legal incorporation, then their positions must be terminated and the division must be directed to take steps to find the union to be in rebellion from the General Conference and dissolve it.

While it truly is an ecclesiastical dispute, it carries with it broad and deep legal and ecclesiastical constitutional implications for the future of the church. Those arguing for expanded powers for the unions asserted that, several decades ago, Elder Neal Wilson tangled with the North Pacific Union over their adoption of a different constitution than the one in the official General Conference Working Policy. I have not read GC literature or minutes of that meeting. They assert that he was powerless to change the Union’s view on their constitution because of the separation or “firewall” status of the unions in relation to the General Conference. Perhaps Elder Wilson determined that to uproot the union would cause collateral damage to its membership and he chose to defer this to a future administration. Similarly, the choice that the current GC Executive Committee faces is that of the twin threats of collateral damage and the legal challenge.

Pastor Ted Wilson and his executive team face a terrible decision. On the one hand, if they choose to directly confront the union administration(s) over their unilateral moves they risk alienating vast numbers of members who would base their votes on the perception that the General Conference is attacking their personal religious freedom. On the other hand, if they choose to go the minimal route, they run the danger of pushing the hard choices on to a future administration and General Conference executive committee. That future administration undoubtedly will face this test not with one or two or even twenty-five unions within the Global North, but with unions in the Global South as well. Each one of them will assert “conscience” and “ecclesiastical precedent” formed by the decision made here and simultaneously threaten to place the General Conference into a direct confrontation with the State.

The assertion that the passing of women’s ordination on the basis of policy will bring unity on this issue is an incomplete solution because this decision addresses non-compliance on any number of issues of which women’s ordination is just one. The assertion made by some that by preventing women’s ordination that unity will be enhanced is also incorrect. Those who hope that liberals will be pushed to “leave the church” will be sorely disappointed because the “liberals” are too smart to do that. The word is out, there is to be no coming out of Adventism. Instead, we will face a war of attrition that will drain resources, morale and contribute to schismatic movements within Adventism.

What options does the General Conference Executive Committee have?

1. They can pass a measure that enacts “painful measures” that include the loss of a seat at the GC executive meetings and perhaps loss of employment in the denomination. This measure will be severely tested and may or may not pass at the Annual Council.
2. It could defer its decision and give another “period of Grace” to the Unions or go to the additional steps voted in the last statement at the previous Annual Council.
3. It could defer its decision while it considers the legal ramifications of a direct confrontation with the unions.
4. It could pass a decision but suspend the enactment until a period down the road.
5. It could propose that the unions in question invalidate the ordinations conducted so far and schedule theological exchanges in the Global South so that Global North theologians can interact with the Global South and explain or teach their reasons for why women’s ordination should be passed on the basis of mission or equality in Galatians.
6. It could reschedule a vote in 2020 but ask the Pacific union senior leadership to resign their positions.
7. It could pass an amendment to the policy and recognize the ordination of women on the basis of mission in select areas. [It is difficult to see the Annual Council take a position against a recent Session decision].

What can members do?

1. Pray for your leaders.
2. Read Scripture and participate in your local church.
3. Engage in member-care using the New Testament Model.
4. Hold your union and conference leaders accountable.
5. Pray that the General Conference Executive committee will find the right decision that the Lord wants so that the church can move forward.

Conclusion:

We need to collectively ask the question: Is the Pacific Union too big to Fail?

In 2008, when the global financial crisis hit the US markets and spread to Europe, the concern was that the large banks were “too big to fail.” The consequences of shutting down banks that had taken trillions of dollars-worth of bad debts and risks would be catastrophic. It was argued that letting these banks fail would take down the entire global economy and plunge the world into a depression not seen since the Great Depression of the 1930s. Thus, the decision was made to inject government capital into the banks so that they would be able to continue issuing credit so that big and small businesses would be able to continue serving their customers.

We are at a similar inflection point in our history. The Pacific Union with its vast monetary resources is also home to the Adventist Church’s largest medical institution Loma Linda Medical Center and two union universities La Sierra and PUC. It’s tithe output alone dwarfs that of whole divisions. It has been argued that the General Conference is incapable of dealing with this union because its financial prowess could cripple the General Conference.

Using Dr. Oliver’s analysis, we can see that the Pacific Union has trended so far towards diversity that it has lost sight of unity. It is incapable of policing itself and keeping itself in harmony with the General Conference policies. It’s theistic-evolution believing professors continue to teach new generations of ministers unchecked by union leaders.[4] It has come to believe that any semblance of doctrinal unity is uniformity.

Perhaps we need to consider breaking up the Pacific Union into separate smaller unions with new leadership. We need to consider the long-term impact diversity at the theological-hermeneutical level is having in the Pacific Union and around the world. And finally, we need to ask ourselves if the collateral damage in the short-term outweighs the damage that has been caused to our mission in the West Coast and around the world.

We accept the concept that our structure is not theologically determined but rather it is built on pragmatic missional concerns. However, the threat to our process is as serious as a threat to our doctrines and our message. While our structure can be modified, it is the process that enables and legitimizes it. The General Conference Executive Committee should weigh these considerations as they deliberate today on the issues of compliance as they relate to the authority of the General Conference in Session, and the role of its Unions.

——–

[1] For an excellent overview of Church Property and Constitutional Law see Hassler, Jeffery. “A Multitude of Sins? Constitutional Standards for Legal Resolution of Church Property Disputes in aTime of Escalating Intra-denominational Strife” http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1115&context=plr

Louis J. Sirico Jr.,The Constitutional Dimensions of Church Property Disputes, 59 Wash. U. L. Q. 001 (1981) Sourced Here: https://pdfs.semanticscholar.org/0e25/d213c56450c82eb4f4673a0957de54f74377.pdf  Cf. Curtis, Dennis E., “Judicial Intervention in Church Property Disputes—Some Constitutional Considerations” (1965).FacultyScholarship Series. Paper 1594.http://digitalcommons.law.yale.edu/fss_papers/1594. Sourced here:

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2578&context=fss_papers

[2] “Internal Property Disputes” Pew Research. http://www.pewforum.org/2011/03/31/churches-in-court2/ Cf. “Churches in Court” http://www.pewforum.org/2011/03/31/churches-in-court1/

[3] Brad Newton’s Official Blog: http://bradfordcnewton.blogspot.com/ Post: July 4, 2010.

“Gender-referenced ordination enters the World Church for the first time.  The previous editions of the Church Manual provided for an ordination service for elders and deacons.  Please note that “elders” is a gender-neutral office.  In North America, Australia, and Europe there are both women and men who are elected as elders and through that election are eligible for ordination.  But this gender-neutrality allows churches in places such as the African continent to bypass the whole discussion whether to ordain women elders–they just don’t appoint elders who are female.  And, of course, deacons are males by definition. The ordination issue for women is moot.  But what about the deaconess?

The previous Church Manual designated an “induction” service for deaconesses elected to this church office.  However, the practice of “laying hands of ordination” on deaconesses is increasingly practiced on an ad hoc basis in various parts of the world church.  The debate on the delegate floor at this General Conference was whether to officially authorize the ordination of deaconesses in the Church Manual. The actual proposal that came from the General Conference Executive Committee would have allowed the 13 World Divisions to apply this individually–thus leaving it open for cultural application.  As you can imagine, this whole topic elicited an intense debate.  Various amendments were offered, debated, and defeated.

In the end, the language voted into the Manual was even stronger than the original proposal.  I had a sense that some of the delegates really didn’t appreciate how powerful this final action turned out to be.  A service of ordination should be conducted for deacons and deaconesses without any wiggle-room for the various divisions to opt out of it.  Granted, “should” is a middle ground between “may” (optional) and “must” (no choice).  But it does do something that has never been done before–the world church has gender-specific ordination for a female. This is monumental, especially in Divisions of the world church that see “ordination” of elders, deacons, and pastors as identical in quality with the only difference being the functions of the office.
Sure, this is a small step but that is the nature of change when you’re seeking to move 13 World Divisions together.  And the vote came with a surprisingly clear majority.

I was thankful as we raised our yellow voting cards for progress in equipping every member of the church for service–especially the 60% of the membership who are women.”

[4] See Dr. Fritz Guy’s articles and books. He co-wrote a paper denying the Genesis account of a global flood. https://spectrummagazine.org/article/2015/10/13/discussion-young-earth-creationism-vs-old-earth-young-life-creationism  and https://spectrummagazine.org/article/fritz-guy/2014/05/29/bringing-real-world-genesis-negotiating-creation-evolution-wars  Cf. Canale, Fernando. “Adventist Theology and Deep Time/Evolutionary Theory: Are they compatible?” http://www.atsjats.org/publication/view/8

Also see his role as the chair of the nominating committee that nominated Dr. Sandra Roberts to be Conference president in violation of GC Policy. https://spectrummagazine.org/article/bonnie-dwyer/2013/09/20/woman-nominated-be-president-southeastern-california-conference