()

The Delaware Court of Chancery will be looking at a 263-year-old deed and the largely undefined area of religious corporation to resolve a dispute between the White Clay Creek Presbyterian Church and the governing body for Delaware’s Presbyterian congregations that stemmed from the admittance of gay and lesbian clergy.

White Clay Creek has sought to split from the faith and align itself with a more conservative sect because of its opposition to homosexual ministers, according to court documents. However, the state’s Presbyterian authority claims it controls the church’s assets and if White Clay Creek wants to join another sect, it must surrender its building and property.

The ministry overseeing the Presbyterian faith through the country, known as the Presbyterian Church (USA) or PC(USA), adopted a 2011 constitutional amendment permitting the ordination of gay and lesbian individuals as deacons, pastors, elders or ministers. Under the amendment, churches are free to make their own decisions on homosexual clergy and are not obligated to accept an individual for ordination.

White Clay Creek’s managing council, or session, views homosexuality as a sin and objects to the Presbyterian faith admitting gay and lesbian ministers, according to court documents filed by the New Castle Presbytery, the authority that governs 55 Presbyterian congregations throughout Delaware. The session voted to leave the PC(USA) to join A Covenant Order of Evangelical Presbyterians, or ECO, a denomination that opposes the ordination of homosexual ministers.

The New Castle Presbytery objected to White Clay Creek’s plan to transfer its religious corporation from PC(USA) to ECO, but retain the use of its property and building to serve its new denomination. In response, the New Castle Presbytery filed a June 2013 lawsuit in the Chancery Court seeking the imposition of a trust to control “all real and personal property, tangible or intangible, titled to or in the possession of White Clay Creek Presbyterian Church.” The lawsuit, In re White Clay Creek Presbyterian Church, also alleges that the session breached its fiduciary duties.

In addition, the New Castle Presbytery has also asked the Chancery Court to issue an injunction preventing White Clay Creek from disaffiliating from PC(USA) and using its property for further church functions if it is no longer a PC(USA) member.

David C. McBride, an attorney with Young Conaway Stargatt & Taylor, is representing the New Castle Presbytery. He argued in a June initial complaint that session members do not have the corporate authority to break from the PC(USA) and align themselves with ECO. McBride said that a statute passed by the Delaware General Assembly in 1881 says member churches are governed by their denomination’s constitution or doctrine.

“As long ago as 1881, the Delaware statute was interpreted as providing that the constitution’s canons and practices of the denomination of which a church is a member, apply to the governance of the religious corporation, and this holding is consistent with the law in other states, so long as those provisions are not contrary to the provision of the statute,” McBride said.

White Clay Creek filed a motion for partial dismissal of the fiduciary duty claim in September and the New Castle Presbytery responded with a December motion for summary judgment. Vice Chancellor J. Travis Laster is overseeing the case.

Last week, White Clay Creek countered with a motion opposing the New Castle Presbytery’s summary judgment request. The congregation’s attorney, Edward B. Rosenthal of Rosenthal, Monhait and Goddess, alleged that under multiple deeds, including one that dates back to 1741, White Clay Creek owns its property and can use it even if it aligns with another church.

“In the midst of the schism, the 1741 deed states that the property is granted for the ‘use and behoof of the Congregation of Presbyterian of White Clay Creek Meeting,’ following with a qualification that ‘they continue in and firmly adhere to the Presbyterian persuasion, discipline and constitution of the Kirk of Scotland,’” Rosenthal said.

Rosenthal also argued that the case is not ripe for summary judgment because there are several genuine issues of material fact, including the plaintiff’s assertion that Delaware law defers questions of religious corporation to individual church doctrine.

“No court in this state has applied this standard in any case involving church property for at least 23 years, with all courts applying instead the neutral principles method,” Rosenthal said. “In the case at bar, the property rights do not turn on religious issues of creed or doctrine, but can be determined by the application of the secular examination of deeds and bylaws.”

Rosenthal added that under Watson v. Jones, a 1871 U.S. Supreme Court ruling, the high court held that an implied property trust does not always turn in favor of a national society or denomination.

The New Castle Presbytery’s reply brief is due in April and Laster has scheduled a hearing on the summary judgment issue for April 30.

“As a lifelong Delawarean what is fascinating about the case is that it is a complicated legal issue and a historically significant congregation,” Rosenthal said. “We are looking at deeds that go back before Delaware was a state.”

McBride did not immediately return calls seeking comment.

Jeff Mordock can be contacted at 215-557-2485 or jmordock@alm.com. Follow him on Twitter @JeffMordockTLI.