January 6, 2009

The Last Laugh (?)

The California Supreme Court has issued a decision unanimously favorable to The Episcopal Church, on the question of who has the proper right to church property in the case of parishes whose members choose to abandon The Episcopal Church. In this, they support the well-argued Appeals Court decision of last year.

Still, many people on the dissenting side feel that this was a mistake. They almost invariably cast this as an issue of ownership of property; and, indeed, the courts can do little but to frame it as such. But the real issue is not ownership, but control and use, of the property in question. And this is where the church's understanding of itself comes in. As I wrote in a post in June of 2007, this is about the alienation of property from its use by the church for the church -- that is, from The Episcopal Church of which the parish, or the diocese, is an element, not a mere detachable and autonomous entity. I framed the discussion in terms which find an echo in the Supreme Court decision, and I repeat them here:

...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.... (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).

It seems to me that the California Supreme Court takes my view of things, in general and in detail.

Tobias Haller BSG


Update: for those who don't know, the photo is of Bishop Walter Dennis. Walter was an old friend and colleague, and was Visitor to the Brotherhood of Saint Gregory. I snapped this portrait of him at one of his Visits. He is the source of the eponymous "Dennis Canon."

58 comments:

A. S. Haley said...

Father Haller, the Dennis Canon may well be the law of the Church; that is not my quarrel with the California Supreme Court decision.

My problem is with the way the California Supreme Court has seen fit, without any logic or true precedent, to allow ECUSA's canons to trump a State statute---a law which the people of this State first enacted in 1872, in their own legislature, and that has been on the books ever since. Think about how you would like it, say, if some religious body meeting in Zanzibar could pass a rule which changed the laws in New York without your having anything to say about it.

Tobias Haller said...

Dear Mr. Haley,
I read your response to the decision over at your blog, in part because I consider you among the sanest and soberest on that side of the issue. I understand your argument but do not find it persuasive on two primary grounds.

The Dennis Canon is not really the issue. As the court noted, and as I've pointed out here, the canons already had established that church property was not subject to alienation from the larger church without diocesan approval, under the Title II canons in effect from 1868. The principle actually goes back far further and rests on ecclesiastical property laws from England, which were given formal recognition in various of the older states (such as NY). With the expansion to the west, the church felt it prudent to embed these understandings in its canons.

The court also addresses the notion that trusts cannot be created unilaterally, by recognizing that upon affiliation with TEC a congregation enters into a covenant relationship which includes recognition of the canon law of the church -- they have voluntarily entered into an arrangement whereby they relinquish the right to withdraw at some future time with their property -- control of which has been ceded, by their submission to the larger entity, to that entity. The congregation has the use of the property, but no right to its abuse (in the technical sense of the word.) In fact, their attempt to leave might be seen as a kind of breach of contract. I wonder how the clergy in such a case might feel about being sued in secular court of violation of the Oath of Conformity?

So I demur from your opinion on these two grounds: the Dennis Canon merely codified an already existing understanding of the fiduciary and trustee relationship of parishes with their property; and by their admission into the church they have voluntarily accepted its law as governing and limiting their actions.

Those who want to remain in control of their church property would be better off in a congregational church; or as some of the disciples said when Jesus forbade divorce, "If this is the case, it is better not to marry!"

Tom said...

AS Haley's comment maybe without precedent but the California Supreme Court's decsion has near unanimous precedent:

"This conclusion is bolstered by a review of out-of-state cases that involved similar church property disputes within the Episcopal Church and that, with near unanimity, awarded the disputed property to the general church when a local church disaffiliated itself from that general church. A typical case, and one cited in some of the later cases, is Rector, Wardens v. Episcopal Church (Conn. 1993) 620 A.2d 1280. In that case, the court reviewed the history of the Episcopal Church. It concluded that a local church that had withdrawn from the general Episcopal Church, as well as the local church’s predecessors, “had agreed, as a condition to their formation as ecclesiastical organizations affiliated with the Diocese and [the Episcopal Church], to use and hold their property only for the greater purposes of the church.” (Id. at p. 1292.) Specifically, it found that Canon I.7.4 (which it called the “Dennis Canon”), “adopted in 1979 merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of [the Episcopal Church] in 1789.” (Ibid.) Accordingly, it found “a legally enforceable trust in favor of the general church in the property claimed by the [local church].” (Id. at p. 1293.)
Other Episcopal Church cases reaching similar conclusions include Bishop and Diocese of Colorado v. Mote (Colo. 1986) 716 P.2d 85; Episcopal Diocese of Mass. v. Devine (Mass.App.Ct. 2003) 797 N.E.2d 916 (relying on Canon I.7.4 and the fact the local church had agreed to accede to the general church’s canons); Bennison v. Sharp (Mich.Ct.App. 1983) 329 N.W.2d 466; Protestant Episc. Church, etc. v. Graves (N.J. 1980) 417 A.2d 19; The Diocese v. Trinity Epis. Church (App.Div. 1999) 684 N.Y.S.2d 76, 81 (“[T]he ‘Dennis Canon’ amendment expressly codifies a trust relationship which has implicitly existed between the local parishes and their dioceses throughout the history of the Protestant Episcopal Church,” citing Rector, Wardens v. Episcopal Church, supra, 620 A.2d 1280); Daniel v. Wray (N.C.Ct.App. 2003) 580 S.E.2d 711 (relying on Canon I.7.4); In re Church of St. James the Less (Pa. 2005) 888 A.2d 795 (relying on Canon I.7.4 and citing Rector, Wardens v. Episcopal Church, supra, 620 A.2d 1280)66; Protestant Episc. Church, etc. v. Graves (N.J. 1980) 417 A.2d 19; The Diocese v. Trinity Epis. Church (App.Div. 1999) 684 N.Y.S.2d 76, 81 (“[T]he ‘Dennis Canon’ amendment expressly codifies a trust relationship which has implicitly existed between the local parishes and their dioceses throughout the history of the Protestant Episcopal Church,” citing Rector, Wardens v. Episcopal Church, supra, 620 A.2d 1280); Daniel v. Wray (N.C.Ct.App. 2003) 580 S.E.2d 711 (relying on Canon I.7.4); In re Church of St. James the Less (Pa. 2005) 888 A.2d 795 (relying on Canon I.7.4 and citing Rector, Wardens v. Episcopal Church, supra, 620 A.2d 1280). . . . These out-of-state decisions are not binding on this court, but we find them persuasive, especially in the aggregate.

RB said...

Personally I find nothing humorous or joyous in congregations bereft of their church buildings, or church buildings bereft of their congregations, as will most certainly be the outcome of this. The Diocese of Los Angeles lost the moment it placed a lawsuit against these churches, and the decision of the courts has nothing to do with it, nor the rightness or wrongness of the diocese' rights to the property (ownership or use). Maintaining empty, or nearly empty, church buildings will be a hollow victory at best. But I won't deny you your right to enjoy this moment while it lasts.

Tobias Haller said...

RB,
Enjoyment has nothing to do with it. You will, I hope, note the question mark in the heading.

What amazes me is the consistent myth from the less rational on your side of the issue that these churches will somehow be "empty" because [some or most of] the current congregation has chosen to depart the Church. Perhaps for a while such churches will suffer, but I think with strong leadership they will bounce back. Some of the departing members may well think twice about their past decisions, as well.

I sense your bitterness over this decision, and I admit to being relieved at this outcome -- but I don't "enjoy" this at all, except to the extent I see justice being done. You may see this all as a "loss" but it seems to me the ones who lost the most are those who, while free to leave the church, in some cases violated their vows, and in others the law, in doing so. Had they simply walked away they would have saved everyone a good deal of pain and loss.

Note as well that Bishop Bruno has opened the possibility of reconciliation. Will there be any takers? Only time will tell. It is premature to assume these church buildings will fall into ruin.

JCF said...

RB,

Is your view of the faith of Episcopalians SO jaundiced that if, say, the vote to leave was 99-1 (I'm rather sure it wasn't that high a %), and the 1 remaining Episcopalian moves back into St. James (et al), that there will only EVER be 1 Episcopalian there?

No other Episcopalians will move nearby---nevermind that someone won't ever wander in, responding to the red, white&blue "Episcopal Church Welcomes You" sign? The 1 Episcopalian will never invite a friend to church? Someone won't come for Christmas/Easter/a wedding/a funeral, and decide to return? [To list only the most casual sorts of evangelism]

Just how awful/shallow/pointless/hopeless do you think our Episcopal faith is?

Lord have mercy!

Leonardo Ricardo said...

I find the ¨empty Church¨ projected ¨slam¨ absolutely silly...as if any one of us could, or would, caliculate the NUMBER of those who will RETURN to The Episcopal Church after being tossed out/about (not to mention those of us who simply didn´t qualify for full participation at all levels of Churchlife because of our ¨manner of life¨...gag).

Churches will FILL UP again after all of WE, codependent, sinners know it´s OK to seek spiritual guidance and HELP AGAIN without pretending to be all Holy and Sainted! What a relief, becoming rightsized Christians again!

paxpax said...

Oh my…..with the state that the world is in we need a little humor. I look forward to using the work “usufruct” in a sentence at my earliest convenience. The Louisiana widow was probably indeed Budreaux. -Joseph Basil

A. S. Haley said...

Thank you for replying, Father Haller. Although your grounds for disagreement are perfectly "sane and sober" when viewed from the perspective of Church law and polity, they do not address my issue, which is that no matter what churches may agree among themselves, they are not above the secular laws that we all agreed to live under in 1789, and that we in turn also inherited from England.

The original version of Canon II.6 enacted in 1868 (as Title I, Canon 21) contained this saving clause: "Provided, that this section shall not be operative in any State with the laws of which, relating to the title and holding of property by religious corporations, the same may conflict."

Although California's laws relating to the requirement that the owner of real property sign a written document creating a trust in that property were first codified in 1872, the same rules existed as common law enforced by the courts in the State before that. (An 1852 case quotes directly from section 6 of the original 1577 English Statute of Frauds, to the effect that a trust in land can be created only by a writing signed by the owner.)

Thus Canon 21 as enacted would not have been valid in California to place a restriction on the ability of a church to convey its property without a written instrument consenting to that restriction. One has to give credit to the canon lawyers at GC 1868 for recognizing that simple fact. The same sense of humility was not present in 1979, when Justice Blackmun's dictum was misread as giving the Church carte blanche to get around State law.

As far as a parish's voluntarily accepting the laws of the Church upon being admitted to it, that again is not my point. Two private parties may agree on anything, within the bounds of public policy. But if they agree among themselves to create an interest in real property, they had better have it in writing, signed by the one who owns the property, if they want it to be enforceable when one of them goes to court. Courts are simply not bound by canons that do not comply with the laws of the State in which they sit. The drafters in 1868 recognized that limitation.

By the same token, Justice Blackmun had no power to allow a Church to bypass State law requirements, and to give him credit, he claimed no such power: he qualified his dictum by saying that whatever the Church did with its governing documents would have to be in "legally cognizable form." The string of "precedents" that Tom and the CSC list all ignore that qualifier, and hold simply that a Church can change State laws by simply amending its constitution. Unfortunately, such judicial hokey-pokey, where they all keep citing each other for support, is the current norm, and TEC is only too pleased to profit by it while it can. Eventually, such an upending of the priority of State statutes (particularly the Statute of Frauds!) will produce its own backlash; that is the ponderous way of the law.

Fred Schwartz said...

The saddest part is those who had their church/mission "closed" and sold out from under neath them to support the errant bishop and others who needed the funds to promulgate their silliness on others. They will NEVER get their church back no matter who wins!

Tobias Haller said...

Dear Mr. Haley, I do understand your point. My point is that you are seeing a conflict between church and civil law where I do not. Perhaps this comes from living in NY where the state statute is identical to the canon! So bear with me. I am not an attorney, and am largely familiar with that with which I am familiar. Or something like that.

I see the state and civil laws (even in California) as harmonious rather than discordant. The Canons are not about ownership, but trusteeship and use. Parishes do (or can) "own" their property, in the sense of holding title. The law of the church does not restrict that. What the law of the church does is restrict what a parish can do with its property -- hence my analogy to usufruct. The congregation, by its entry into union with the diocese has by that covenant voluntarily relinquished the capacity to alienate property without permission. That is not in conflict with civil law.

A similar thing happens in marriage and divorce -- and, indeed, property issues on divorce vary from state to state. But, for example, in California, where a marriage would normally be governed by a common property arrangement (as I understand it) that divides the property upon divorce -- a couple could sign a prenuptial agreement that specified a different allocation of property in the case of divorce. A very wealthy woman marrying a poor man might well protect herself in this way.

So to apply the analogy, it seems to me that clergy upon signing the oath of conformity, parishes upon entering into union with the diocese, and diocese is with the national church, covenant to abide by the laws of the church --- which are not in fact in conflict with state law, since they do not apply to ownership but to alienation. "Ownership" only becomes a vexed question when the congregation seeks to violate the covenant agreement. The courts, recognizing the covenant embodied in the canon law of the church, generally rule in favor of the church rather than the congregation; and they do not always rule on the ownership pure and simple -- in some cases they mandate a mediated settlement. But they recognize the existence of a covenant and its violation By the congregation.

So a problem only arises when a congregation seeks to leave the church. It may well "own" the property in sense of holding title to it, but it has entered into an irrevocable covenant (certainly irrevocable unilaterally, though perhaps revocable by joint agreement) not to alienate that property from the diocese and the national church.

You are arguing that trusts have to be explicit and mutually agreed to in order to be binding; that is a fair point. What the courts have argued is that the implicit trust rendered explicit in the Dennis Canon is in fact mutually agreed-upon by the congregation's entry into the larger church. I don't have the reference at hand, but my recollection is that this also goes back to a Henrician legal precedent.

To return to the Louisiana widow, by analogy: the church, in having its own canon law to govern its own activities has not contradicted the civil law; but as a widow's husband who has written a will preserves his widow from mere usufruct if he were to die intestate is not contradicting the law but is assuring that it not come into effect -- so too a congregation and diocese entering into a covenant of union limit the congregation from future effective resort to civil law to retain their property. To apply the other analogy, they agreed to the prenup.

Tobias Haller said...

Following up. The Statue of Frauds appears to be Caroline: 1677 not 1577. The legislation to which I refer is also not Henrician, but dates from 1570 -- I can't be more specific as White and Dykman give no citation, but the purpose of the law was to prevent dilapidation or alienation of ecclesiastical property. See my earlier post on the legal history.

Anonymous said...

I'm just an ignorant atheist. To me, it looks as though someone who HAD a franchise for BurgerKing is trying to change the sign unilaterally to TacoBell.

IT

Tobias Haller said...

Yes, IT. That's part of what I meant.

As to the legislation, I did a bit more searching, and the 1570 acts appear to be 13 El. c. 10 and c.20. Interestingly, these are also against "Fraudes" -- but appear to be (as near as I can tell from the highly technical and archaic and arcane language) directed against ecclesiastical (and collegiate) persons who attempt to alienate church (or collegial) property by leasing it to pad their curial income. Such leases are to require legislative approval. This must be what Dykman was referring to in the case of the NY State law that required approval of the legislature (now the Supreme Court) -- in addition to the Bishop and Standing Committee as required by canon -- for a parish to lease its real property for more than five years, or to sell it. The state's interest is not in owning the property, but ensuring that the church maintain it for its intended use and not simply fritter it away. The diocesan interest is similar, and it only becomes an ownership question when a parish tries to bolt from the church, thus "alienating" what was formerly held in trust for the larger church of which it was a part.

It appears that prior to 13 El. c.10 this was a matter of Common Law.

Suffice it to say that the California Supreme Court and SCOTUS both recognized the validity of either the "hierarchical church" or the effective "neutrality" of the statutes of a hierarchical church. This does not, to my mind, as the lone dissenter seems to think, virtually render all decisions hierarchical -- but does recognize that there is a covenant and trust relationship involved in hierarchical churches, and that covenant and trust is in itself a neutral principle of law. This is the one point that the dissident side often seems not to acknowledge; that the SCOTUS decision includes the laws of a hierarchical church as neutral in themselves: the state, in short, recognizes Canon Law and the ability of corporate persons to bind themselves to those laws.

Erika Baker said...

IT
yes, but the TacoBell people believe that the franchise had always been a TacoBell one and that it had been corrupted into becoming a Burger King outlet.

Those who invested in it while it was a TacoBell style franchise would therefore want their money to go with the new pure TacoBell shop and not remain with the polluted Burger King.

Phil said...

Rev. Haller,

With respect, I think you actually are missing Mr. Haley’s point. ECUSA’s claim – and the impact of the California decision – is to make the Canons about ownership, and not about trusteeship. After all, if I am able to restrict you, in perpetuity, from exercising the ultimate privilege of ownership – selling what you own – then your ownership is nothing more than a mirage. Therefore, the distinction you are trying to make is not a difference in the world in which ECUSA and its judicial allies would have us live.

If the issue were one of trusteeship alone, then the logic would follow that I can place certain restrictions on how you use your property, so long as you choose to remain affiliated with me. However, as soon as you choose otherwise, those restrictions must vanish.

For example, if I choose to race a car on the NASCAR circuit, I have to accept any number of restrictions on how the car can be modified and maintained. But, if I choose to leave NASCAR and race my car on (I’ll throw you a bone) Billy Bob’s small, insignificant, purity-obsessed race circuit, NASCAR can no longer dictate what type of engine or wheels I use; still less can it tell me I’m free to go to Billy Bob’s, but, by the way, NASCAR now owns my car.

Tobias Haller said...

Dear Phil,
I do understand Mr. Haley's point but I disagree with it. By entering into union with the church a congregation does precisely relinquish it's "ultimate privilege of ownership" -- the right to alienate its property. I do not think this makes their "ownership" a mirage, but it places distinct limitations upon the disposition of the property. In addition, the congregation relinquishes its right to become independent, independently of a joint agreement to separate. This is the crucial distinction you appear not to recognize. Once a covenant is entered into (which is what happens, in writing, when a congregation becomes part of a diocese, or the diocese of the church) cannot be unilaterally violated.

The canons only become "about ownership" when a congregation defaults on the covenant.

Perhaps it would help to think of all that a congregation is and owns as a designated gift. The charters of most congregations are explicit in this regard, even before entering into union with the diocese. Such gifts cannot be diverted to other ends unilaterally. Unlike NASCAR, which you can drive away from as you please, the church is not simply a federation of otherwise disconnected congregations -- in short, TEC is not a congregational church, but a hierarchical one; and the laws of hierarchical churches can be interpreted neutrally as imposing a trust that is voluntarily assented to by union with that church.

Phil said...

A covenant cannot be unilaterally violated? In many cases, it certainly can be; I’m sure you’re familiar with the phrase, “termination for convenience.” For that matter, what’s ECUSA’s teaching on divorce, again?

So, where is it spelled out that an action to separate can only be taken by joint agreement?

Geoff said...

"Rev. Haller," indeed!

Anonymous said...

Actually most drivers do not own their car but drive someone else's. So isn't the analogy the driver illegally taking McLaren's car to BillyBob's speedway?

IT

Anglocat said...

Dear Mr. Haley, and Phil,

I am a lawyer, and have practiced as well as published in the First Amendment field. The flaw in Mr. Hale's analysis, and the reason undergirding the California Supreme Court's reasoning, is that the Free Exercise clause limits the state's ability to regulate church ownership of property so as to not disregard the church's polity. In Jones v. Wolf, the Supreme Court upheld a statute that presumed a "majority wins the property" approach to a dispute reasoning that: "Most importantly, any rule of majority representation can always be overcome, under the neutral principles approach, either by providing, in the corporate charter or the constitution of the general church, that the identity of the local church is to be established in some other way, or by providing that the church property is held in trust for the general church and those who remain loyal to it."

443 U.S. at 607-608.

In other words, the ability of the church to be allowed flexibility in ordering its affairs, and the relationship between the national body and diocese and parish, were significant reasons for the adoption of neutral principles to such disputes, not mere dicta.

The High Court has long recognized that church polity has theological underpinnings, and thus the Free Exercise Clause impacts the ability of the federal and of the state governments to interfere with it. The reason why pre-1920s state statutes often do not respect this line is that prior to Gitlow v. New York (1925), the Fourteenth Amendment had not been read to apply the First Amendment to the states, and thus states had plenary power over religious bodies within their borders. See Permoli v. First Mun., City of New Orleans (1845)("The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws. Nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.")

Such pre-1925 statutes are almost certainly unconstitutional, and decisions upholding them that do not address incorporation, are without precedential value.

JCF said...

if I choose to leave NASCAR and race my car

But it's precisely the "my" which is in dispute, Phil! You can't stipulate your way out of this.

Grandmère Mimi said...

After all, if I am able to restrict you, in perpetuity, from exercising the ultimate privilege of ownership – selling what you own – then your ownership is nothing more than a mirage.

Phil, the children cannot throw the Louisiana widow out of the house. That is the privilege of usufruct. The widow gets use of the property. That's not a mirage.

Tom Sramek, Jr. said...

It is also not entirely clear that TEC will choose to retain use of all of the disputed properties. As Bishop Bruno has mentioned, efforts at reconciliation will be made. I can certainly see where (in spite of the Presiding Bishop's warnings against doing so) a diocese might well sell a church building to a newly-created Anglican church, thus transferring ownership. However, the point is that it is ultimately up to the Diocese, not the dissenting members of the congregation.

And, yes, there is the divorce-like sense of "we're not leaving the church, the church left us" and attempting to say that there is some overarching "Anglican" ownership or franchise thing going on here. There isn't. There IS no worldwide Anglican Church, there is only a worldwide Anglican Communion of autonomous churches.

Paul Davison said...

Anglocat beat me to it. The First Amendment does restrict how a state can interfere in religious entities; something the Virginia courts will have to address.

A thought: do I feel that I belong more to the Episcopal Church or St. Christopher's, my local parish? I love the people at St. Christopher's, and it is a wonderful home to me, but I see myself as first a member of the Episcopal Church. If these wonderful people chose to leave (thankfully, not likely), I would still love them... and miss them.

Fr. Daniel Weir said...

I agree with the assertion that the relationship between a congregation and a diocese, or between a diocese and the Episcopal Church cannot be ended unilaterally. While there may be no signed trust agreements pertaining to property, there are many other signed documents that create the relationships among congregations, dioceses and the Episcopal Church, as well as documents that create relationships between clergy and the Episcopal Church (I have signed two of these in which I "solemnly engage[d] to conform to the doctrine,
discipline, and worship of the Episcopal Church" and have signed several such documents at the ordinations of others.)The absence of explicit trust documents seems to me to be unimportant.

Tobias Haller said...

(reposting to correct some wild voice recognition transcription)

Dear Phil,

I misspoke in saying "A covenant cannot unilaterally be violated" as should be clear from my earlier references to such violations, and the very next sentence in that comment, referring to those who default on a covenant. What I meant was a covenant cannot unilaterally be voided.

There are also consequences to such defaults or violations. Obviously a man can commit adultery --- but his wife can sue for divorce; when the marriage is ended (by law) a legal settlement will no doubt be made. Even in a no-fault divorce the state will have an interest in the distribution of property.

The Episcopal Church does not regulate divorce; it regulates remarriage after divorce -- just as does the Roman Catholic Church. In TEC it is up to the local bishop to determine the status of former marriages terminated by civil divorce, and there is no requirement for a bishop to recognize a divorce or grant permission to remarry. Nor can any priest be forced to perform the marriage of a divorced person.

This is simply another area in which the law of the church trumps the law of the state. Another, which occurred to me last night, is the freedom of a church to decide, for example, that it will not employ a woman in an ordained capacity -- this in spite of a state nondiscrimination laws. The state recognizes that there may be a religious principle at work that trumps civil law. This also goes for property, as Anglocat so ably demonstrates.

As to separation from the church, there is no provision for such separation. That's the point, really. Nor is there provision for a diocese to leave union with General Convention, except in the case of overseas dioceses. This is much the same as the US Constitution's lack of reference to a state becoming independent -- there is no such provision. One would no more expect to find a separation clause in the canons as one would find it in a marriage service. The few instances where a parish and bishop have agreed to a separation are taking place outside the national canonical regulations -- and might even be judged to be in violation.

After all, if a parish cannot sell any of its real property without approval of the Bishop and Standing Committee, what makes you think they can simply walk away with it in its entirety?

I'll say it once again, The Episcopal Church is not a congregational church. We are "Episcopal" -- and the bishops have certain well established authority over congregations. The Vestry serve as the Agents for the church, but even if they hold title they are not free to dispose of property without permission. And the state recognizes the right of the church so to frame its laws without interference. You are of course perfectly free to think that this should not be so, but the Supreme Court of the US has said otherwise, and is unlikely to revise their opinion on the matter.

Thanks for the other comments as well. Mimi, I'm glad to hear from a real Louisiana woman -- and, Phil, you had best heed her expertise.

Thanks as well to Tom for the reminder that there is no superior Synod or ecclesiastical law in the Anglican Communion --- the Episcopal Church is an autonomous church that is part of a larger Fellowship of churches.

Paul, you make a good point on that question of parish versus the larger church. Although one is a member of the church by virtue of being a member of a parish, it is the existence of the church that allows one to transfer one's membership to another Episcopal congregation if one relocates -- or even if not. As Wolf v Jones notes, the identity of the local church is established by its membership in the diocese and national church, and it is governed according to the law of the larger entities.

Phil said...

Anglocat,

Your citation of Jones v. Wolf shows, instead, why I don’t believe there’s a flaw in my analysis: as the Court recognized, churches are free and able to arrange their secular affairs in such a way that their (supposedly) theologically-based polity is protected. Given that, it is no infringement of the First Amendment to both require churches to adhere to secular property law and then adjudicate related cases “neutrally” based upon that law.

In any case, under the prevailing reasoning, the Supreme Court in California has now infringed on the First Amendment rights of the organizations that wished to leave ECUSA. This will always be the case when two religious bodies choose to litigate a dispute in which one must win and one must lose; which is why the neutral principles approach is the only valid avenue the State has to avoid infringing on our religious freedoms. It’s unfortunate the courts feel otherwise, but it isn’t the first error they’ve created and perpetrated over a long period of time, nor will it be the last.

Tobias Haller said...

Phil,

I'm afraid you just don't get it. The Canons of the Episcopal Church are the governing neutral principle here. Jones v Wolf made that clear. Property control is established either through deeds or through enaction of law by the larger church.

There is no First Amendment violation, because the individual members of the congregations are free to leave the church -- but while they are members of the church they are bound by its laws.

Anonymous said...

No one is restricting any individual's movement or opinion, Phil. that's a nonsense. That's like saying that my marriage impinges on THEIR first amendment rights!

oh, wait....

IT

David |Dah • veed| said...

The thing Phil wants, is to have his cake and eat it too. (Did I get that English idiomatic expression correct?)

He wants to associate with a parish that has submitted to the Constitution and Canons of the Episcopal Church as long as he feels like associating and then he wants to disassociate from that parish when he later feels like disassociating and take the parish's property with him, regardless of the fact that the C&Cs of TEC said, implicitly from their early formulation, and then explicitly from 1979 with the approval and adoption of the Dennis Canon, that the parish property was held in trust for the general church by those associated with the parish, only so long as they are associated with the parish and that should they disassociate from the parish they relinquish their trusteeship of the property back to the general church.

And that is specifically what the CA high court has taken 30 pages to ultimately say;
For these reasons, we agree with the Court of Appeal’s conclusion (although not with all of its reasoning) that when defendants disaffiliated from the Episcopal Church, the local church property reverted to the general church. As stated in one of the out-of-state cases involving the same Episcopal Church, “[t]he individual defendants are free to disassociate themselves from [the parish and the Episcopal Church] and to affiliate themselves with another religious denomination. No court can interfere with or control such an exercise of conscience. The problem lies in defendants’ efforts to take the church property with them. This they may not do.” (Protestant Episc. Church, etc. v. Graves, supra, 417 A.2d at p. 25.)

And this holds true whether one associates in the present day with a parish that dates back to the 1700s and which holds in trust historic real estate and buildings or whether one associates with a pioneering group who purchase new real estate and build a new building and form themselves and seek admission to a local diocese and the general church as a parish in 2009, or anything in between the two extremes.

David |Dah • veed| said...

PS - thank you for explaining the foto Bro T. I had erroneously surmised that we were laughing back at an African prelate who previously had laughed at us.

::wanders away red faced::

Tobias Haller said...

Spot on, Dahveed. And I realized not all would recognize Bishop Dennis -- though I did not foresee the interpretation you gave to the image! Walter was a dear friend and a man of great expressiveness. I only wish he could have enjoyed a longer retirement.

Anglocat said...

Sorry, Phil, but the Supreme Court held to the contrary in Jones v. Wolf:

"Furthermore, the neutral-principles analysis shares the peculiar genius of private-law systems in general - flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members."
443 U.S. at 603-604.

And:

"The neutral-principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form."

443 U.S. at 606.

So, your understanding of the case is simply incorrect.

Tobias, a technical (legal) correction: the "neutral principles" are principles of state law regarding trusts, property and conveyancing--but such "neutral principles" are required to give effect to the intent of the parties' and to respect the ecclesiastical polity as set forth by the religious body's constituent documents.

David |Dah • veed| said...

It now appears that the court in Central NY agrees and Fr. Mass Progeny & Company have been told by the court that they also relinquished their trusteeship of the parish Church of the Good Shepherd property when they chose to disassociate from the general church.

Tobias Haller said...

I tried to post a comment earlier today but it appears to have disappeared into the ethernet, or whatever the Internet equivalent of limbo is.

Anglocat, Thanks for the further clarification and the citations. I did misspeak in referring to the Dennis Canon itself as a neutral principle; rather the recognition of it is the neutral principle. I take that to be the meaning of the word "Alternatively" in the citation from Wolf v Jones. My reason for raising this is that many among the dissidents contrast the neutral principles approach of WvJ with the hierarchical approach of Watson, apparently without recognizing WvJ's offering the recognition of constitutional polity as an alternative to a merely hierarchical approach which did not require explicit language in the Constitution concerning church property. As we see in the recent settlement of the case in New York, the Dennis Canon is moot, as New York has followed a hierarchical approach for generations. The Dennis Canon now offers a course for following WvJ, but that not need be followed. (I would argue that even prior the the D.C. there was ample language in the Canons to limit secessionist property alienation.)

At least that's how I understand it and I beg your indulgence if I have again misspoken!

Thank you Dahveed for flagging the news on the New York decision. It should not come as a surprise to anyone; which makes the expense and false hopes on the part of the dissidents all that more regrettable. They have gained nothing in this action, and ought to have known their chances were infinitesimal. As to the use of what might be an amusing nickname, I confess I have done such things in the past but have tried to restrain myself over the last year or so, as I do not think it adds to the force of an argument; and I know it gives me a bad taste when I see it deployed on the other side of the divide, as rarely as I take the opportunity to look into what seems to have become a vortex of ill will -- Matt himself, as mistaken as I think him to be, one of the more moderate voices. For myself, I would rather take the high ground, as tempting as a descent to wallow in the muck is attractive at times.

Paul (A.) said...

Tobias, you wrote "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."

The principle is not limited to real estate only: The Dennis Canon (I.7.4) restates the trusteeship of "[a]ll real and personal property". That is why dissidents are required not only not leave without the parish house, they must also leave without the silver.

A local TV news clip shows the parishioners of Church of the Good Shepherd, Binghamton "packing and moving out" of "their" church property in consequence of the court ruling that the property was not theirs but the diocese's. They seem to be taking out not just the nursery toys but the kitchen equipment and tableware.

And I thought that taking the silverware was just a metaphor!

Over on MadPriest's, Fr. Kennedy has glibly asserted that these were just things that parishioners had "loaned" to the church and were now reclaiming.

That's novel.

And on an ironic side-note, the clip opens with a parishioner playing a hymn-tune on the piano. The text for the line he's playing is "Yet they at these themselves displease, and 'gainst him rise."

Tobias Haller said...

Thanks, Paul (A.) Good to have another attorney weigh in!

Yes, I know that the Dennis canon includes "personal" property -- I was speaking more generally; and many past disputes have mostly been about real estate. Does the old Watson hierarchical principle apply to personal as well as real property? I'm sure the canny Bp Dennis wanted to cover all the vases... uh bases.

I hope those parishioners kept receipts for those items, and that they didn't take a tax deduction on any of them. Novel indeed... as in Crime and Punishment!

I suppose another appropriate verse would be, "Somtimes they strew his way," or "In life no house, no home..." How utterly poignant and tragic is the bullheadedness of the self-styled orthodox. As it has always been...

David |Dah • veed| said...

Forgive me Father, for I have been glib. I have used a nickname, which I have always found humorous from first seeing it used, as a way of offsetting the pain and ill will which I feel as this person has directed much evil toward gay and lesbian brothers and sisters.

(Not to mention that in spite of the above, he is rather cute, in a milky-white sort of way, and has such pretty blue eyes. I am once again in the situation where after being gay-bashed by a man with a gun while in seminary in Dallas, TX, USA, I began having erotic dreams of this individual!

Lord have mercy.)

Tobias Haller said...

Dahveed -- I understand completely and didn't mean my comment as a rebuke but as a reminder to us all. I am no stranger to satire and humor, and it's certainly the case that gays have developed humor over the years as a response to oppression; and I still think we can use it that way. But in this case, Matt, cute as he is (though, yes, pale and wan), is also feeling much pain; self-inflicted though it is. I pray he may one day come to understand the Jesus he claims to know so well, but whom he has abused for so long in the persons of folks like us.

Be strong, dear brother Dahveed, and gracious, as I know you are.

Leonardo Ricardo said...

Not to mention that in spite of the above, he is rather cute, in a milky-white sort of way, and has such pretty blue eyes.¨David |Dah • veed|

GOOD GRIEF DAHVEED, lay off the triple hot roasted chilis...although, I´ve personally noticed that ¨milky-white a rosadito¨ does have certain ¨advantages¨ South of the Border(s) (even slightly ¨vintage¨ milky-white a rosadito¨ does...but, green trumps blue anyday (especially in Puerto Rico)...you ought know that.

Meanwhile Bishop Denis has a wonderful and especially appropriate smile and it carries right up to and including TODAY!

Viva Denis Canon, Viva The California Supreme Court, Viva Bishop Bruno and TEC diocese of Los Angeles!

Phil said...

Anglocat,

I seriously doubt the arrangements in question would suffice if the dispute were between you and me, or between Mrs. Jones’ Flower Shop and Mr. Wolf’s Property Co. And so, the court is claiming to follow “neutral” principles, but isn’t. It’s following “special” principles that only apply to religious bodies, even though, by its own reasoning, which you’ve cited and which I’ve affirmed, the secular affairs of the denomination could be ordered in a way that would not only give effect to its supposedly theologically-based polity, but would be recognized by all of us in the secular world as being valid.

In the real world, the court has infringed on the right of the mainstream Anglicans to live by their religious beliefs. The rejoinder that the individuals could simply walk away is meaningless, as the same thing applies to ECUSA, which could (and should have to) lick its wounds and move on to set up parishes with deeds clearly in its name, and/or according to trust arrangements clearly attested to by both parties, the validity of which neither you nor I would contest.

What’s more, none of this touches the right of the parishes to dissolve their relationship with ECUSA, which nothing says they don’t have (and on which Tobias’ subsequent post is unpersuasive, the similar case in our national life having been resolved, not by legal reasoning, but at the point of guns).

Of course, there is a moral dimension involved here as well; by all means, hang your moral authority on the courts, as is fitting for today’s Episcopalianism. Keep in mind, though, as I alluded to above, these are the same courts that claim the State has the right to seize your property and hand it over to a more powerful private party; the same courts that protect the right to murder babies in the womb; and the same courts that maintained a regime of slavery in this country. Those are your bedfellows.

---

By the way, Tobias, your last comment is offensive. I wonder what your reaction would be if I commented, “May you come to understand the Jesus you claim to know so well, but which you have abused for so long at the altar of your own gratification”? Ah, but that’s right: I’m not allowed to judge others’ relationships with Christ, but you are. After all, you’re an Episcopalian of the most Important and Beautiful kind, smarter than other Christians and obviously our moral better.

Tobias Haller said...

Phil, the game of Yes it Is, No it Isn't is getting tedious, and you are now raising your voice.

You clearly disagree with the California Supreme Court's (and, fwiw, SCOTUS' too) understanding of "neutral principles." We get that. I take it from your further comment that you support secessionism as a general right, even including the states; and that the Civil War was not in defense of a valid principle of union, and only carried the day by the force of arms. You think that parishes and dioceses are free to affiliate and disaffiliate with the larger church as they please. That is a point of view, but not one widely shared.

I do not, as you think, hang any moral authority in this matter (or any other) on the courts. The court settles law, and I do not agree with all of the laws of the land or all of courts' decisions regarding them -- including at least one of the ones you mention nor give them any particular moral weight even when I agree with them.

If there is a moral question involved in all of this it concerns those who violate their vows rather than taking the option to renounce them. As to the courts, you clearly have a great deal of anger about them, as your rant on the topic indicates. This is not the forum to settle those debates -- even on the one on which I agree.

As to my comment about Matt, you don't need to wonder what my reaction might be if you were to comment as you did; both since you did, and because Matt has stated, for example, he would not allow me (or people like me) to receive communion in his church unless I reformed my views and conformed to his. I don't know what world you have been living in, but it seems to me that there are many who have made statements such as yours, and numbered among them are Robert Duncan and not a few members of AMia, CANA, and its allied entities. My reaction is to say I think they are mistaken -- which is my reaction to Matt.

Why should I not be permitted to do so? It is you who seem to think I am not allowed to express a similar sentiment concerning them. No one is stopping you, either. As you can see by my posting this comment, even though it consists entirely of contradiction and assertion, with very little reason thrown in.

Most importantly, I do not claim to be Matt's "moral better" -- I know my own faults too well. What I do believe is that he is mistaken, and I pray he will come to see that, and reverse the harm he is doing. He has said the same thing about me. This is in the nature of a disagreement. In the end, God will forgive us both, because that is who God is. But I do not think the self-styled orthodox have the right to make the kinds of statements they do, while I do not. You reaction smacks of the "no fair hitting back" syndrome I've noticed to be so prevalent among those who think they are on the high side of morality.

If you have anything substantive to add to this conversation, you are welcome to do so. By the way, are you an Episcopalian?

Geoff said...

By the way, are you an Episcopalian?

[tangent] I just learned this week that David Virtue is a Baptist minister. Whence the obsession with how Episcopalians treat their gayfolk?[/tangent]

Tobias Haller said...

Geoff, this is a strange phenomenon; many of the most voluble critics of TEC are not Episcopalians. Some are former Episcopalians suffering from what I call the "Lot's Wife Syndrome."

Dahveed, thanks for that other comment. I would have taken you up on the offer to edit, but I can't edit posts, just allow or reject. I'm not sure you are correct in this your assumption in the present case, so rather than introduce a red herring I thought it best to "leave it lay where Jesus flang it." There are at least three different persons with the same Christian name who are frequent posters in various venues, and it does sometimes lead to confusion as to who is speaking, and from what perspective.

On a side note, I tend not to be too taken with what I regard as a form of ad hominem argument based on expertise (or the lack of it) or personal interest. My feeling is that if something is true, it doesn't matter who defends or articulates it.

My question to Phil is based on what appears to be his lack of familiarity with, and disdain for, the polity of the Episcopal Church. He honestly seems to think we have, or ought to have, a congregational polity. I just find that odd if he is an Episcopalian, and if he isn't, it might explain things, at least in part.

Phil said...

Tobias,

I’m a born-and-raised Episcopalian, which is more than can be said, as the flip side to your last comment, about many on your side who, for example, left the Roman Catholic Church, yet presume to lecture those who are Episcopalian lifers about the Anglican tradition.

I will admit, though, the teaching that ECUSA could seize parish property, without regard to civil law or its own malfeasance versus the Gospel (i.e., the denomination has meta-obligations in this deal as well, which it has violated), never came up – not in the liturgy, not in the sermons, not at Sunday School, not before Confirmation, not in the catechism and not in the parish or diocesan newsletters.

However, I can tell you with confidence that what is “odd,” is the notion that either the Episcopal or Anglican – or Christian, for that matter – tradition comprehends the notion that a man can “marry” a man. And, there are other things that receive tacit or overt approval in today’s ECUSA that have no history within Episcopalianism, or Anglicanism: things like the functional denial of the divinity of Christ that is inherent to an indifference to religious systems; or the idea that it is man who creates the Kingdom of God; or the reality that a bishop could widely, publicly and brazenly apostasize from Christianity – and profit from it – and still be feted as a member in very good standing of the episcopate.

I’ll go on, since you brought it up: how do you, as an Episcopalian, honestly find it to be so serious a transgression that you question his relationship with Christ that a minister of the Gospel would deny someone the Eucharist? It says right there in the BCP, and has for quite some time, that any priest is within his rights to do so. Along with nearly any of the Holy Fathers with an extensive enough corpus, read the letters of your own order’s patron: St. Gregory was very willing to “let [sinners] be deprived of communion” until such time as they repented and returned to the Faith.

Look, you have the right to say whatever you wish. It’s your blog. What you (and I’ll make it a generic “you”) can’t do without earning the title of hypocrite is go on about how inclusive and welcoming ECUSA is, or how it doesn’t matter what anybody thinks, it’s all acceptable, or how nobody had better ever, under any circumstances, “judge” another’s Christian life – then turn around and do the opposite. If ECUSA is so latitudinarian, why the quick assumption that anybody who disagrees with you has abandoned ECUSA, especially since the talking point is that practically nobody has left – that it’s all noise over nothing? Doesn’t that mean, statistically, most of those who disagree with you are still in? If these are your principles, these are your principles, no matter what Matt Kennedy says, all the more because Christ said, “turn the other cheek.”

Anglocat said...

Phil,

You seem surprised that a lawyer (me!) would describe the law (the First Amendment!) in a legal matter. We can have, if you like, a discussion regarding the religious and moral implications of this decision, but let me adcdress your claim that he courts have infringed the rights of Anglicans to worship as they choose.

Since the Dennis Canon was passed in 1979 (if not before--Tobias alludes to arguments made at greater length elsewhere), the polity of TEC has clearly vested ownership of parish property in the national church. The Canon has not been challenged, sought to be repealed, or in any way drawn into question. So, in what way has freedom of worship been denied? Join a hierarchical church, with a by-law that vests ownership in the national church, and what do you expect?

Tobias Haller said...

Phil, I'll let your comment speak for itself. It explains a great deal.

Grandmère Mimi said...

I’m a born-and-raised Episcopalian, which is more than can be said, as the flip side to your last comment, about many on your side who, for example, left the Roman Catholic Church, yet presume to lecture those who are Episcopalian lifers about the Anglican tradition.

Phil, are you saying that newbies (only 14 years an Episcopalian!) don't have a voice? I left a hierarchical church to join another hierarchical church. It would never have occurred to me that I could take property with me. Even if I had left with a group of like-minded Roman Catholics, we would never have thought that we could take the church property with us.

David |Dah • veed| said...

Not only has the bylaw not been challenged until now, it has been used in the past by at least one reasserter bishop when it was to his advantage. ±Iker used it in a TX court in the 80s when a parish more conservatively Anglo-Catholic than he himself, voted to leave his diocese for greener pastures and to take the parish property with them.

How dare this parish. I am shocked I tell you, shocked!

Tobias Haller said...

Thanks Mimi. FWIW I am a cradle Episcopalian; though I was brought up in the Roman Catholic Church from the age of 6 or so, and departed it when I was 14, to rediscover TEC in my first year in college. Perhaps people who consciously choose TEC as adults have a better understanding of it? Then, perhaps not.

Dahveed... so I'm not the only one who think Bp Iker resembles Claude Raines in Casablanca....

Anglocat said...

Tobias, just a quick apology for the barbarous typos in my last comment. I've analyzed the CGS decision over at my place.

Phil, one quick rejoinder to your depiction of TEC. It isn't intolerant and un-inclusive to refuse to allow the minority in a representative religous polity to dominate the majority. Had the "reasserters" been forced to themselves ordain openly gay, non-celibate priests and consecrate similarly situated bishops, you would have some kind of argument.

But they want to dictate to the majority, and failing that, leave taking the property, or even the "brand" with them. Resisting unlawful usurpation is not tyranny.

As to your critiques of TEC spiritually, I would with all due respect point you to Archbishop Ramsay's An Era in Aglican Theology and its account of the battles over the orthodoxy of H. Henley Henson, William Temple and many others who did not believe as you do, and yet who served the Church with great distinction. Your oblique reference to Bp. Spong reminds me of CS Lewis's evaluation of Spong's predecessor in some of his ideas, Bishop John A. T. Robinson, whose Honest to God provoked a similar storm. Lewis summed it up as not shocking and even described Robinson's view of Jesus as "wholly orthodox."

In other words, I would respectfully submit that orthodoxy, properly understood, is a bigger tent than you assume.

Tobias Haller said...

Thanks, Anglocat. As I noted at your blog, I just yesterday did some research, and found that in spite of the editorial error in not listing D-24 (Amendments to Canons I.6 and II.7, commonly and jointly called the Dennis Canon) in the Concurrent Actions section of the 1979 Journal of General Convention, the concurrent actions in both Houses, and the relevant messages back and forth, do appear in the minutes of each of the Houses in the Journal. The "Concurrent Actions" section of the Journal does not constitute the official minutes, but only a handy collection, and (supposedly) a repetition gathering together the actions in each house on a given resolution in a single place. The formal minutes themselves do indeed show adoption in the House of Bishops and concurrence in the House of Deputies. How the action came to be omitted from the "Concurrent Actions" section is something I'll address at greater length in a separate post (some day!). Suffice it to say it is clearly an editorial error, with an editorial explanation. Subsequent editions of the Journal of GC discontinued this (repetitious, wasteful, and when in error, confusing) practice of having a separate section of the Journal, and instead introduced the use of boldface for the final adopted text of resolutions, and an index pointing to the action trail in both houses. There were still errors with the indexing in subsequent years, but such errors do not invalidate the acts themselves, or we'd all be in trouble!

Phil said...

Anglocat,

Perhaps orthodoxy is, as you say, a “bigger tent” than I presume. It’s still a tent: it has sides and a door, beyond which one has moved outside its boundaries.

You will know more than me about Temple and (certainly) Henson, and so I’m not sure in what sense relevant to this thread their belief differs from mine (and, respectfully in return, I’m not sure you know, either). Temple had doubts early on that would disqualify him, in my mind, from serving as a Christian clergyman, but, in my understanding, the views he held as a bishop were fully Nicene. Feel free to correct me.

On Robinson, I really think he’s an entirely different kettle of fish than Spong. (Re: Lewis, in what is billed as his “final interview,” he was asked: “What do you think of the controversial new book, Honest to God, by John Robinson, the bishop of Woolwich?” His answer was, “I prefer being honest to being ‘honest to God.’” His endorsement was hardly unqualified.)

As to ECUSA’s polity, my comment was not directed to it per se, but to the individual attitudes of those who claim inclusivity – “all views are welcome here” – and non-judgmentalism but question a minister’s relationship to Christ because of a doctrinal disagreement (still more as a result of him exercising a responsibility long given to him in the Anglican, and, for that matter, Catholic tradition). In any case, ECUSA isn’t the Rotary Club, it’s a church. It isn’t free to alter the Gospel, even if it has the votes to do so.

Tobias Haller said...

Phil, thanks for the calmer explanation of your position. It does make it easier to understand.

I think one misconception you have is that "inclusiveness" somehow forbids expressing any opinion that someone else might be mistaken. You also confuse "judgment" with this same difference of opinion. Surely there is a difference between "judgment" (with the meaning Christ intended in saying "Do not judge.") and criticism, or saying you think someone is mistaken. You feel free to point out others' mistakes all the time... including in this comment.

What I said concerning Mat, which you found so offensive, was that I believed him to be profoundly mistaken, and not to understand Jesus as well as he thinks he does. I stand by that assessment.

That being said, I have not "excluded" him from anything; he would be welcome at my altar rail though I am not welcome at his. That is the difference between being inclusive and exclusive. Matt had that right to excommunicate -- so do I for that matter -- the difference is that he is willing to apply it to me while I would not do so to him. He has rendered a judgment and imposed a penalty; all I have done is to say I think he is mistaken; moreover, I have not said his "views are not welcome" -- and he has posted a number of times at this blog. That does not mean I agree with him any more than he agrees with me. He thinks I am mistaken, and I think he is. He has no qualms about saying this affects my relationship with Christ -- my comment, on the contrary, did not question his relationship, but his understanding.

Anglocat said...

Dear Phil,

You're right that Temple grew steadily more orthodox as he aged, and by the time he was consecrated a bishop, he was describable as a Nicenian believer--the Virgin birth having been one of his last sticking points. But he was never the disciplinarian Gore was, and believed that he had a mission to build bridges. Had he not been ordained in his more controversial period, what a great loss to the Church--and rejection at that stage might have pushed him away forever.

As to Robinson, I agree that Lewis didn't endorse his views--but he did not find them shocking.

I further agree with you that the bounds of orthodoxy are not unlimited. But I would respectfully urge you to consider that we should be very, very careful as to drawing those lines, and that they should not be drawn based on anything other than the core of the Gospel. While I have the greatest respect for St. Paul, the so-called "clobber passages", just like the attributed passages regarding the subjection of women, do not meet that standard, but rather seem to me to reflect the mores of his society.

Genesis says that it is not good for man--or woman--to be alone. Yet reasserters offer gays and lesbians nothing more than a mandatory solitude, coupled with a diagnosis of "inherently disordered." I believe that the message of the Gospel has more to it than that, in view of the Gospel of John's statements regarding development, and the Gospel imperative of the love of God.

Yet I respect your right to believe as you do, and would not refuse to receive Our Lord at the altar with you. And, as a creedal Christian--and I think we use that term teh same way--I view our difference as painful, but as adiaphora.

Phil said...

Tobias, OK. My conversations with progressive Christians have been cut off more times than I can count with the accusation that, "You are not to judge." I felt, however, that I was only critiquing; I understand "judgment" as you've used it and try not to go where Christ told me not to go (not that I can say I've never crossed the line, I'm sure I have.) I suppose I'm sensitive to what I see as a double standard.

Tobias Haller said...

Phil, here we are in agreement. I know that many progressives seem to think they can employ the very "no fair hitting back" argument -- they are so sure of the rightness of their cause that they are ready to jump all over anyone who criticizes them. All I'm saying is that the "conservatives" do the same -- getting bent out of shape when they are criticized. My effort has been to respond to the critiques themselves, to address the content.