Semi-Seminary

In my previous post I noted with some sadness an article about the transformation of parts of The General Theological Seminary into the High Line Hotel. I've heard from the Dean and President, the Very Rev Kurt Dunkle, that the article is in error in part, and certainly gives the wrong impression concerning the Refectory — which is leased for use by the Hotel only when not being used by the Seminary. That is good news, and actually the kind of arrangement of which I heartily approved, as it is wise use of an asset during its "dormant" phase.

I still regret the decisions to part with so much else of the property, but do hope that the new administration will bring some forward thinking.

The Dean's comment can be seen here.

Tobias Stanislas Haller BSG

Confusion in California

A California court has rendered a decision in the remaining property dispute concerning congregations (or parts thereof) who had chosen to depart the Episcopal Church. At issue in this case, rather different from most others, is a letter from the bishop of the diocese written in 1991 telling the congregation they could buy some property that would not fall under the prevailing canonical “trust” of the diocese or the general church. The judge has found that the bishop did not have the authority to waive the canons, which state that all real property is held in trust; and moreover that the bylaws of the congregation also declared that all property they hold is held in trust. This renders the letter and the “gentlemen’s agreement” a nullity. This only came to a head, of course, when the congregation chose to depart the church.

Some have wrongly seen this decision as creating a whole new requirement for the sale of church property, even alleging that all church property transactions might have to come under national approval of some sort. This is a mistaken view for several reasons:

First, the decision of the court involving the supposed waiver of a trust, is distinct from the attempted alienation of property (dealt with as a consequence, since it was the alleged waiver that the congregation thought permitted the alienation.) As the trust requirement is canonical, it cannot be waived by any authority other than the national church through an amendment of the canon itself, or perhaps by legislation clarifying the meaning of the canon (as the General Convention is the authorized interpreter of the canons, through its actions.)

Second, the canons do provide for the alienation of property, which does not require national approval. All that is required for a parish to alienate property is the approval of the bishop and standing committee. This is true for parishes that remain within the Episcopal Church and any which choose to depart — in a few cases amicable settlements have been reached by which congregations leaving TEC have been able to retain their property upon reaching an agreed settlement with the diocese. Parishes cannot simply walk away in possession of property they held in trust.

Third, and this is the most important principle: parishes may well hold title to their property but they do not own it free and clear — and this was true long before the enactment of the so-called "Dennis Canon" — as attested by the other long-standing canonical regulations that restrict the sale of church property, and require diocesan approval (of bishop and standing committee) for such sale. Church property is not allodial, but feudal — its disposition is not entirely in the hands of those who hold title because of other legal restrictions. This is actually true of most property even outside of the church, where zoning laws and eminent domain and other state and local regulations restrict what one can do with one's property.

So those who were claiming that this court decision opens a can of worms for all church property ownership have wildly missed the point.

Tobias Stanislas Haller BSG

Postscript and update:

I am flattered that the venerable Anglican Curmudgeon has taken note of my musings. I fear he has mistook me in small part (which I attribute to my hasty comments at Thinking Anglicans more than to my effort here). Suffice it to say he and I have continued some discussion at his well-worth-visiting blog. I posted a couple of comments there the gist of which I will share here, as I think it helps to offer some additional clarity to my view of the situation, edited slightly for this different context.

As I see it, the main issue involves the distinction between the trust itself and the alienation of property.

I have to agree with the finding of the court that the bishop exceeded his authority in attempting to waive the trust. There is no suggestion that a bishop acting alone, or even in concert with the Standing Committee, could waive the trust established in the canon (acknowledging that some feel the canon itself is irregular and overreaching, it is nonetheless “on the books” and the courts appear in general to defer to it as consistent with what Jones v. Wolf mused might be one appropriate way to flag the existence of such a trust in explicit language.)

Let me add that I do not think any duplicity was involved in the action of the bishop or his canon to the ordinary, and it is a matter of some concern that succeeding bishops, and others, have chosen not to honor that commitment, even if it was inappropriately made. It seems to me that both sides in that agreement were poorly advised as to the state of the law at the time, both ecclesiastical and civil. It would more likely have been advisable for the parish leaders to undertake the establishment of a separate not-for-profit corporation to obtain the property and then to have leased the property to the parish for its use, none of which would have required the consent of the bishop, though an episcopal nod would have been seemly. This would have improved on the gentleman's agreement and provided legal protection.

The issue of the alienation or sale of property is distinct from the existence of the trust. I believe that the current court decision, even if upheld on appeal, should not concern any parish so long as it remains part of the Episcopal Church. That seems to me to be the plain reading of Canon I.7.4. (The "Dennis Canon.") I read "otherwise" in this canon not in reference to the trust (for the Church and Diocese thereof) but in reference to the normal property rights enjoyed by the parish restricted only by the immediately preceding section of the Canon (I.7.3) which describes the procedure and the requirements for encumbrance or alienation.

So my point is that the bishop and standing committee cannot waive the trust, but they can permit the sale or long-term lease of property so long as the parish is part of the Episcopal Church. (Which is the case for the vast majority of congregations.) 

Furthermore, I do not see how this decision would apply to property transactions for parishes that remain part of the Episcopal Church -- or, indeed, who would have standing to challenge such a legitimately permitted and canonically correct sale if the Bishop and standing committee, and the vestry of the parish, have approved it – or even who would care to do so.

Matters are different for parishes that choose to leave the Episcopal Church. I am aware that national leadership have attempted to forbid amicable and fair-value settlements to departing congregations in a few cases; and very likely look askance at sales for a mere token; but I imagine that the urge to challenge even the latter in court will depend on the willingness to meet the legal costs, and I for one would hope that urging reasonable settlements would prevail.

TSH

Post-postcript

Further conversation with A Curmudgeon was very helpful and directs me to what I think is the difficulty I have with his position. This devolves to two points.

The attempted waiver on the acquisition of the property was really an attempt to waive responsibilities de futuro (pardon my mixing marriage law with real estate... just that my head is rather involved in work on the former at present), in other words, proactively to hold property free from the trust in the case of some future alienation. The court found that the trust relationship cannot be so dissolved, either in the future or the present. As I suggest, there were other possible ways to structure this, but a bishop cannot essentially authorize a sale of property (a parish doesn't yet own) in the future, or apply the dead hand to require a successor so to do -- and the St Com approval is also needed in any case. In the present, however, a Bp and SC can authorize an encumbrance (sale or lease) -- not "waive the trust." Which brings me to my second point.

Mr. Haley is interpreting the encumbrance of property in I.7.3 as a waiver of the trust in I.7.4. But it is not a waiver of the trust, since the value of the property remains for the use of the church. It is a transaction within the trust, not an escape from or waiver of it. It was the attempted waiver de futuro -- essentially to allow a parish allodial title to their property -- that the court found to be a nullity. Parishes do not hold their property free and clear.

I.7.3 was on the books long before I.7.4 was a glint in Walter's (or Blackmun's) eye. The trust element was, as various courts have stated it, implicit, in part because of the long-standing limitations on the encumbrance of property to the extent that a higher authority (Bp and SC) had to approve sales or long-term leases.

I do not see this as a case of special pleading, but an across the board requirement. Parishes are not able "to deal freely with their properties" even within TEC. They must have Bp and SC approval for any encumbrance. In NY this is written into the Not-or-Profit Religious Corporations statute as well (predating Dennis), so we need approval of the Supreme Court as well!

TSH

Post 800: From yesterday's sermon

What are the grapes or grain
that you could leave untouched
for others to be nourished by?
Perhaps it is the wheat and grapes you leave behind
that go to make
the bread and wine that will become
the Body and the Blood of God.

What extra miles have you trod down,
or coats or cloaks provided —
and has your cheek once felt
the sting of an unearned slap,
and yet you’ve not returned it
with a blow or protest?

Tobias Stanislas Haller BSG

Battle for Britain (well, England)

See here for a response to the Ashworth private member's motion referred to earlier, being distributed to the General Synod of the Church of England, concerning the "hounding" of "faithful" "Anglicans" by the leadership of The Episcopal Church. (Pardon the scare-quotes... I think I may have used my quota; though I found a hidden store overlooked by rightists who insist on writing about gay "marriage.")

I've also suggested the production of a postcard note saying something like this, to help the English put this in perspective:

Dear Synod Member,

Please consider the following for a moment:

1) What would be done in the Church of England if a bishop from the convocation of Canterbury were to announce one day that he no longer considered himself to be under the authority of the Archbishop of Canterbury and had transferred his allegiance to the Archbishop of Tanzania, but intended to remain in his present location and exercise episcopal functions as a representative of his new archbishop?

2) What would be done in the Church of England in the case of a priest who announced that he no longer recognized his diocesan bishop as having any authority over him, but refused to relinquish his cure? And if he invited bishops from other dioceses or provinces to do parish visitations there?

3) What would be done in the Church of England if the clergy and parish council of a parish in, shall we say, Dibley, announced that it was no longer part of the Church of England, but considered itself now to be a congregation of the Church of the Province of the Sudan, altered all of their signage and other public information to reflect this change, purporting now to be part of "The Anglican Church in England" and invited bishops from the Sudan to function in the parish, refusing to have anything more to do with their C. of E. diocese or its leadership?

These are the kinds of things The Episcopal Church is having to deal with, as facts on the ground. Any depositions, inhibitions, or lawsuits are a result of and in response to precisely these sorts of actions. Consider carefully how you vote on the motion to come before you. You may soon be dealing with just such situations yourself.

Tobias Stanislas Haller BSG

Mrs Ashworth is misinformed

and perhaps a meddlesome interferer who by her own admission did not consult with any Episcopalians other than those she appears to represent; or at the very least a well-meaning busybody.

Mrs Lorna Ashworth is bringing a Private Members Motion to the General Synod of the Church of England, appealing recognition by the Church of England of a state of communion with ACNA (the self-styled "Anglican Church in North America). You can review her background document for yourself. Amongst the numerous errors and half-truths in this document, I want simply to flag her assertion that the "Dennis Canon" was somehow a novel creation by which all parish property was transferred to "the ownership of the national church."

In fact, the "Dennis Canon" (which she quotes but clearly does not understand) merely put into canonical language the practice and understanding of the church (and in most places, the state) up to that time: that parishes may own their property, but they hold it as trustees for the wider church. It is not theirs to sell, for instance, and never has been, without diocesan approval, under canons far older than that proposed by Walter Dennis. (This is perhaps slightly different than they do in England, admittedly, but I very much doubt the leadership of an English parish could suddenly claim no longer to be part of the Church of England and retain the real property until then held in its name.) The Dennis Canon merely made explicit what had been the normal practice up to that time. Dozens of court cases had been decided in favor of the larger church prior to the adoption of this canon, and very, very few against (most of the latter involving peculiar circumstances in a given parish).

But to clarify for Mrs Ashworth, and any member of the Synod who might not understand, the question isn't ownership but trusteeship. I have dealt with this at length before and will not dwell on it here, but the basic principle is not that hard to understand: when people have custody of a property as trustees, the maintenance of the trust forms the basis of their control. Most Episcopal parishes were founded for the good and use of The Episcopal Church; they were maintained and contributed to over (in some cases) generations with that end in mind, and the vestries serve as the custodians of that trust. Those who give to the support of the church give -- the church doesn't belong to them simply because they have contributed to its construction or maintenance. (Ananias and Sapphira learned that the hard way.)

Moreover, when leaders of a parish vote to leave The Episcopal Church, even though they may feel that they are the truly faithful Anglicans, they fail in their trustee responsibilities, and at the very least remove themselves from being qualified to exercise that trust — they have, in fact, violated the trust. So the control of the property (not its ownership, per se) reverts to the body for whom it was held in trust: the diocese and national church. In many cases the members of the parish who remained part of The Episcopal Church will take up control of the property. Mrs A seems to show a great deal of pity of those she says are "excluded" from their churches, with scant recognition that in many cases a portion of the congregation has no wish to secede from The Episcopal Church, and it is they who have been "excluded" and are seeking to regain property wrongly occupied by those who wish to walk apart from the church of which they formerly were part.

I certainly hope this mischievous motion is not adopted. It will seriously muddy already well-trodden waters. (See the comments to this effect in the additional document from the Secretary General, especially noting the citations from the Windsor Continuation Group Report ¶ 93-96.)

Tobias Stanislas Haller BSG

Sacred Vows, Sacred Trust

a guest editorial

Fifty years ago, I was accepted as a postulant for Holy Orders. When I was ordained, our vows were referred to as “Sacred Vows” committing ourselves to a calling, a vocation and not just a job. The Vows were so significant that after we recited them, the service was stopped, while we went and signed a printed copy of the vows. I pasted my copy in my prayer book hymnal. I made those vows at ordination to the Diaconate and again at my ordination to the Priesthood. I was ordained by Bishops of a Diocese but for the Episcopal Church. In later years, when I was required to establish my identity by various secular authorities, I gave the page and edition number of the Episcopal Church Annual. My authority, my “license,” my legal standing as a priest, came from the Episcopal Church. When I moved to a Diocese, the first credential was to be in good standing as a Priest in the Episcopal Church.

The Episcopal Church welcomed me as a steward, not an owner, but a steward of ministry resources. When I was called to a parish, I was given the use of Church buildings and grounds; vestments, chalices and other altar appointments; organs, pianos, office equipment; funds for mission & ministry, endowments and designated funds for scholarships and outreach. I was responsible for working with the congregation to maintain all of the above and (see parable of the Talents) to enhance and grow those resources to the best of our ability. When it was time to leave, I turned all of the above over to my successor. I was told from day one, you are a steward not an owner and the Episcopal Church is trusting you with these resources because of your ordination to the priesthood and license within the Episcopal Church.

Bishops have a third set of vows. They are approved by the whole Episcopal Church before they may be ordained and consecrated to the Episcopate. The Diocese elects and the Episcopal Church, through a vote of Bishops holding jurisdiction over Dioceses and a majority of Diocesan Standing Committees, consents and affirms the election. When the consents are required within three months of General Convention, the House of Deputies of General Convention acts in the role of the Standing Committees. Once Consecrated, the Bishops receive the use of the resources of a Diocese as stewards not owners. When they leave, they are to turn it all over to the succeeding Bishop.

There have always been times when a Deacon, Priest or Bishop, as a matter of conscience, deems it impossible to continue in the Church which has empowered them. There are appropriate ways to declare such. Two Bishops I greatly respect, John Lipscomb formerly Bishop of Southwest Florida and Jeffrey Steenson of Rio Grande (New Mexico and part of West Texas) each have been received into the Roman Catholic Church. As Paul reminds us in Romans, we are to outdo one another in honor. These men took honor seriously.

Some are arguing that the property belongs to the current members of a Church or Institution. That requires forgetting the great contributions of the hundreds and thousands of Saints who have preceded them in those places. Trinity Cathedral is the mother Church of the Diocese of Pittsburgh and has served Western Pennsylvania for 25 decades. I had the privilege of being responsible for Trinity for two of those decades. Bp. Duncan was responsible for one. Does that mean I am twice as worthy to “own” the Cathedral? That is absolute nonsense.

Someone wrote that since the Episcopal Church has a polity of participatory democracy that the majority of current members has the right to property. ... I love our polity. While I am quick to point out its flaws, I have found it to be more helpful for me in ministry and mission for Jesus than other polities. But simply stated, we in Pittsburgh watched as the checks and balances of our polity were dismantled over the last eight years or so. At the end, we were not even permitted to have a roll call vote at Convention. I did not speak at our Convention to the issues of controversy during my six years as President of the House of Deputies, since I would have to preside over them. In November of 2006, in the two minutes I was allotted (and then only if you were near enough to the front of the line to be called on before debate was ended) I decried the fact that as someone who had served the mother parish of the Diocese for more than twenty years; as someone who had an unusual, if not unique, view of the entire Episcopal Church, that I was allowed only 120 seconds to speak to the most difficult and complex question the Diocese of Pittsburgh had faced since its founding following the war between the states.

I do not question the sincerity or commitment to Jesus of those with whom I may disagree. Like the late Bp. Herb Thomson said to the wardens and rector of a parish which chose to leave the Episcopal Church, “How may we help you board another ship in the fleet of Christ?” For fifty years, I have never once considered claiming ownership of property and resources entrusted to me and my colleagues. I was surprised, even shocked, when a Pittsburgh priest started talking about this twenty or more years ago. I think, like Bp. Thompson, we may work to find ways to make this painful period gracious and to give the Body of Christ in our areas the best opportunities to do ministry in Christ’s name. I still believe my vows are sacred. I still thank God for the sacred trust given me by the Episcopal Church. How blessed I have been.

George Werner
31st President of the House of Deputies.

posted with his permission, and my thanks, by Tobias Haller BSG

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The Effect of California Court Cases on Man-in-the-Moon Dioceses

One question that has been raised is the extent to which the recent California Supreme Court decision on Saint James Long Beach and The Episcopal Church will apply to the secessionist "Anglican Diocese of San Joaquin, of but not in the Southern Cone."

It is true that there is no explicit constitutional language describing the process by which a diocese can become independent of The Episcopal Church once it has entered into union with it. Some might say that silence implies consent. However, as I have noted in the past, exactly the same silence is a feature of the Constitution of the United States, and the Supreme Court has ruled (Texas v. White 74 U.S. 700 (1869)) that secession is not possible when a "union" is thus established — certainly not unilaterally without the consent of Congress. Details of Article V of the Constitution of the Episcopal Church are in many respects reminiscent of Article IV.3 of the US Constitution — though far wordier. The use of one word, union, is not without significance.

The governing documents of The Episcopal Church do provide a mechanism for non-domestic missionary dioceses to become independent, which requires the consent of the General Convention. Surely the independence of a domestic diocese — even if it were possible — would require at least as much consent.

It will be interesting to see how this case is argued, and the cases in Pittsburgh, Fort Worth and Quincy, if indeed argued they must be.

Tobias Haller BSG

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

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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."

Why the Courts?

Over at the House of Bishops / Deputies list there's some discussion going on about why we can't have more mediation or reconciliation instead of litigation, in addressing some of the painful controversies with dissident members or parishes and even large chunks of dioceses. Much of the litigation, of course, focuses on the property issues -- mostly real property issues.

I sympathize with those who wish we didn't have to resort to the courts. One often hears Paul's advice not to go before a civil court cited; but then when he got into a spot with his Jewish countrymen, he appealed to Caesar.

However, I think it is fair to note that in many cases the petitioners who, following Paul in his "appeal to Caesar" modality, are those who wish to remove church property from the control of the larger diocese or church. There have also been a few failed efforts at reconciliation which cast a larger shadow over the successful efforts; this is exacerbated, no doubt, by the press both "sacred" and secular.

There seems to me to be another reality at work: some people just can't be negotiated with; they don't want to negotiate even when negotiation is offered. That -- coupled with the fact that, if I'm not mistaken, about 80 - 90 percent of all such property cases end up favoring the "hierarchical church" -- presents the dissidents with three possibilities:

1) Negotiate and likely and up having to pay a fair price for the property, or

2) Litigate, spending perhaps less than the property would cost, but on the chance you might win and get it for nothing beyond the money spent to press the suit; or

3) Abdicate, walking away and starting anew, but then having to spend a pretty penny to do so.

Given that there is bound to be a cost involved, even the "logical" choice would appear to be (2), unless the legal costs become prohibitive.

This choice is, at least in some cases, also fueled by a high level of a "God is on our side and will deliver us" mentality. A perusal of some of the dissident side's reflection on their court cases, and indeed the whole course of the crisis in the Anglican Communion and environs, reveals that the Deuteronomic Historian's philosophy is alive and well ("If we do what God wants God will reward and protect us..." ) So that emotional pressure adds to the "logical" choice to risk litigation on the 10-20% chance of winning. Beats the lottery, hands down; and inclines the heart away from reconciliation or negotiation.

Tobias Haller BSG

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Update 12/20/08

This post has engendered a number of comments, some of which seem to derive from portions of it having been quoted out of context -- and with an added gloss -- at SFiF. Fr Matt commented below as well, and I responded to his very courteous note. I want to summarize what I said and add it here as an update, to help clarify what I intended in this brief reflection. I invite you to read the string of comments for further insight.

This reflection was written in answer to the question, "Why can't we all get along" and was an effort to understand why a parish would choose litigation -- from the get-go -- rather than negotiation or abdication. I think my original statement is true in many (not "most" -- as the gloss to my comments asserted at SFiF) cases. It appears to be true in relation to Don Armstrong's parish, and in the California parishes; the story in Virginia seems to be mixed, but as "the witnesses do not agree" I'm content to set that aside. What I'm left with is evidence from past reading in the Clergy Law and Tax Report, not just from TEC cases, but other churches. Good-faith negotiation seems to be rare, and litigation common. I've also spelled out [in the comments] the pressure to litigation from the "hierarchical church" side -- I don't mean to put all of the "blame" on dissident parishes, by any means.

In part I was trying to lay out the reasons for choosing litigation over negotiation (which takes both sides' agreement, and which often fails early on) or abdication (the third option I describe) from the dissident side; which Phil dismisses as "trivial" or so obvious it doesn't require saying. To my mind, the effort to alienate property rather than walking away and starting fresh, especially in places where the track record on court decisions is against the congregation and in favor of the hierarchy, requires some explanation as to what drives the movement in that direction. And I think it is the small but real hope of winning the case, and a very firm belief in the rightness of the cause. That does not seem to me to be unreasonable.

T

Courtship

The California Supreme Court decision on the issue of same-sex marriage includes this observation:

While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children.

One would think this to be a simple and obvious fact. Yet the foul cry has already gone up that such a broadening of recognition will in fact have impact upon either those mixed-sex couples already married, or those who might contemplate it. I'm sorry, but this begins to sound a bit like, “I don't want to be part of a(n) _________ that allows _________ to join.” Fill in the blanks as you will. It also begins to sound an awful lot like some couples want “special rights” reserved, rights and privileges that only apply to them and not to other couples. Stay posted as the effort to write these special rights into the California Constitution presses forward.

Meanwhile, it appears that, yes, Virginia, you are not alone in wanting to maintain your diocesan authority and trusteeship (in the name of The Episcopal Church) over Episcopal churches. According to a report from Episcopal Café, a whole slew of other churches (and the other dioceses in the state) have joined those already in the Diocese of Virginia's Friends List. They make a compelling case that state intrusion into the inner workings of any church constitutes an unconstitutional interference with the religious right to order a church according to its own beliefs and doctrines. Again, stay tuned for what is bound to be an important court decision.

Tobias Haller BSG

Property 1570 1610 1789 1806 2007

I received an e-mail in response to my article on the property dispute challenging it on two points. The writer suggested that in the colonial era, when churches were all under the authority of the Bishop of London — much to the satisfaction of those who like to “bless and keep the bishop... far away from us!” — it was hardly likely that there was any idea that church property was anything other than freely disposable. He also suggested that if the Bishop of London had an interest in the property, its transfer into American hands must have been irregular.

Actually, the rules on implied trust and alienation of church property go back to an English statute of 1570. We are dealing with an established church, and the state had an interest in the proper use of church property for the state church. I imagine that colonial churchmen observed all such statutes on alienation of church property scrupulously.

After the Revolution, the Episcopal Church became “necessarily” independent of English jurisdiction, “civil” and “ecclesiastical.” (Preface to the Book of Common Prayer, 1789, and enacting clause of the first Constitution of the Episcopal Church). However, as the Episcopal Church was considered to be a self-governing extension of the Church of England, the authority to limit alienation passed to the appropriate bodies, in accord with custom, until the formal enactment of a canon to that effect, apparently in 1806. (I’m unable to verify this detail as I don’t have a copy of the Constitution and Canons from that period handy. White and Dykman refer to “the old Canon 59” on parish vestries.)

Interestingly enough, such limitations remain (to this day) a matter of civil law in many places where the English statute of 1570 had been adapted (New York is an example). From the foundation on, no church could alienate property without permission of the legislature (or later the chancellor, and now the Supreme Court of the State of New York). In New York, even a 6-year lease requires such approval, to say nothing of permanent alienation through sale. The state’s interest is not proprietary, but directed towards the good order of a society that, like itself, is intended to survive a particular generation’s whims.

All of this prevented what we now see happening: a disaffected membership of a congregation gaining ascendancy and seeking to remove real property from the use of the “general” church.

Tobias Haller BSG

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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

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