The Mercy of Property

... is strained.

On Monday afternoon I posted the following to the House of Bishops/Deputies list:

Parishioners have the right to use church property for the work of the church. They have a custodial relationship over church property, but they do not own it. They have a form of usufruct, but have no power of alienation, as the canons made clear long before the Dennis Canon was a gleam in Walter Dennis’ eye.

Attempts to claim control of church property, conveying it to uses other than for the benefit of this Church, represent a form of alienation. It is not use but abuse, in the technical sense.

I received a couple of humorous notes about the use of the word usufruct — the right to make use of a property but not to dispose of it by sale or other conveyance. The technical meaning of the word abuse, by the way, is alienation, the opposite of use.

Then, late yesterday the California Court of Appeals issued a decision concerning a number of parishes that had sought to come under the governance of an overseas bishop and remain in control of their property. The decision rightly overturned the anomalous ruling that had held sway in California for about 30 years — a ruling out of step not only with most of the other states of the union but with the Supreme Court decision that led to the adoption of the Dennis Canon in the first place.

So I would like to make the further observation, in response to a press release from one of the dissident parishes arguing that the Court of Appeals decision is a departure from 30 years of precedents. Even a casual reading of the court’s decision shows that the earlier decision was a major departure — and an erroneous one — from many times more decades of precedents; moreover, precedents recognized throughout the US, based on a decision of the Supreme Court concerning implied and explicit trusts. The earlier California decision was an anomalous departure from the principal of stare decisis, as the Court of Appeals makes clear, and it led to an uneven and confusing application of law.

Moreover, much as folks like to demean the Dennis Canon, it is the law of the church; moreover, it was created in response to the request of the Supreme Court to render implied trusts (on the basis of which such cases had been decided up until then as sufficient) explicit. In short, there was no change in practice with the introduction of the Dennis Canon, merely a spelling out of what was already implied by both uniform practice and the already long-existing canons on alienation, to which I referred above. (Parishes cannot alienate, that is abuse, church property without the permission of the bishop and standing committee — clear evidence of the hierarchical nature of such decision-making processes concerning property.)

More than that, a moral issue is involved. Some have suggested that it is not fair that members of a dissenting parish should have to leave their property. This begs the question that it is “their” property. It isn’t, on several grounds. (I will not apply the various epithets of theft, poaching, &c., as I think the dissidents are honestly though mistakenly convinced of their proper ownership.)

Giving: When people give to the church, they give up control over what they have given. (A designated gift can, of course, allow for limited degree of control as to purpose.) However, most gifts are for the general operation of the church and its mission. Many people claim a tax deduction for such gifts; and if they were to attempt to recover them would incur a tax liability. It is an affront to the concept of stewardship to try to regain control over something you have given for the work of a larger entity. It would be very odd indeed if people could remove, say, a stained glass window, because they didn't like the new rector's preaching. We should not only not let our right hand know what our left hand is doing when we give open-handedly, but if we do know, forget it as soon as possible.

Custodianship: custodians have the care of property but they do not own it. They maintain it for the benefit of others. (Remember what Archbishop Temple said about the nature of the church: the only institution dedicated to serve those not yet its members.) The present members of a parish do not own the parish; it isn’t about “them.” They are not free to do with it as they please. Even in the days of pew rent, people only “rented” their pews.

Franchise: Parishes function as a part of and under the name of The Episcopal Church. While some may now see this to be a liability, for most of the life of these congregations it was an asset in that newcomers to the community could identify the parish as part of a larger entity, with its own identity. It is only through that larger entity that these parishes participate in the real-life Anglican Communion, as the Panel of Reference recently affirmed.

Tenancy: a church is the people, not the building; but not always the same people — as members pass into the ranks of the church expectant new members are added to the church militant. All of us, in the long run, are only temporary members of any congregation; tenants, not owners.

Usufruct: in a sense all congregations are like the Louisiana widow who has the right to continue to live in her intestate husband’s home, but doesn’t have the authority to sell it out from under the children, who inherit by right. (As I understand it, under Louisiana law a spouse is not an inheritor by right. That might seem odd, but it is similar to the situation in not-for-profit corporations which, when they dissolve, don’t divvy up the assets among the surviving members of the board, but turn the property over to another not-for-profit entity.) Moreover, the Louisiana widow loses usufruct over the property when she remarries, and the children come into their own inheritance. This seems a good analogy for the congregations who have hooked up with Uganda. There are still loyal Episcopalians who have the right to that property, and there will be more to come. The church is not only about the past but the future.

Stare decisis, returning to where we came in: In a hierarchical church such as The Episcopal Church, all real parish property is, and always has been, held in trust for the work of that church. Some have suggested that this case may be overturned if it comes to the Supreme Court of the United States. I would suggest that should it reach that Court, it will most likely rule in favor of TEC, since the Dennis Canon was enacted at it’s recommendation, to render explicit what was already implicit (and universal practice until that point, and was also covered in the canons on alienation, which go back to the 19th century).

Tobias Haller BSG

---