“If I were in litigation in another state I would certainly point to this and say, ‘Hey, this is what another state’s Supreme Court said,'” said Robert W. Tuttle, a church-state expert at the George Washington University Law School.
Tuttle and others cautioned, however, that these kinds of property decisions tend to turn on facts specific to the case at hand.
The Rev. Peter Frank, spokesman for the Anglican Church in North America, the conservative rival province that was launched in December, said he doesn’t expect Monday’s rulings to staunch the conservative exodus.
“People that have made the choice to be mainstream Anglicans are unlikely to be sued back into a group they disagree with just because a panel of judges tells them they don’t actually own the candlesticks on the altar,” Frank said.
This statement is not attributed to anybody but the reporter, but I think it is basically true. In fact I believe the fight is more about this statement than the value of the property alone. So what the real battle is about is a matter of coercion of conscience. This takes the issue to the next step about the right to freely practice your religion without coercion. Taking away your property is coercion. That is why at some point the US Supreme Court may get involved.
The court did not apply neutral principles of law regardless of what they said. This is a confused and contorted opinion which reflects the state of law in California. I have been a trial judge fo 30 years and I can not understand the opinion or the holding.
Judge Pb,
To repeat an earlier observation: Suppose two corporations enter into a joint venture which one of them decides to terminate. Who gets the venture’s property when the dispute goes to court? The answer is not automatically going to be, “Whoever has their name on the deeds,” or “Whoever paid for the property,” but will be determined by the totality of the legal relationship between the parties, and particularly by the joint venture agreement. Nobody would consider enforcing the agreement as “taking away the property.”
In this case, the California Supreme Court basically used the same method, as it is required to under the “neutral principles of law” approach. Analysis under the “principles of governance” approach would require deferral to the central authorities of a hierarchical denomination and treat subsidiary bodies as dependent on the higher judicatories. In contrast, the parish, diocese, and national churches were treated “neutrally” here as independent entities bound by voluntary contractual relationships.
Among the relevant documents were the written declaration by the representatives of the parish that it would be bound by the Constitution and Canons of the diocese and denomination, and the action of the diocese in accepting that declaration and granting the parish status as an Episcopal church. In effect, this constitutes the “joint venture agreement” between the parish, diocese, and national church.
The Constitution and Canons have always contained provisions allowing them to be amended by majority vote of the General or Diocesan Conventions and providing that the amendments would be binding on all the parties. (That may not seem fair, but check your own credit card agreements for examples of secular contracts that can be amended unilaterally by the dominant partner.) As the result of one such amendment, congregations do not have (if, indeed, they ever had) the power to take parish property entirely out of the denomination. Even prior to that amendment, there was never anything in the Constitution and Canons allowing a parish to unilaterally secede with any assets currently in its possession.
Just so, I have never seen a secular joint venture agreement that gives one party the unilateral power to terminate and keep the venture’s property without consequences, either. Most contain provisions like the Dennis Canon that give equitable ownership of property used by the venture to the venture as a whole (even when legal title is held by just one party), and that provide for disposition of the property on termination of the venture. Since the courts will enforce those provisions against secular corporations, under “neutral principles” they must enforce them against religious corporations.
The real violations of neutral principles were seen in the various trial and appellate decisions in California and elsewhere that have refused to look at the contractual relationships between the parties, but only at whose name was on the deeds. By ignoring the reality that many denominations are organized hierarchically and have gone to considerable trouble to implement their organization by written legal documents, these courts have significantly departed from neutral principles and treated religious entities differently from non-religious entities.
The argument has been that enforcing the canons constitutes excessive entanglement between church and state, but ignoring the canons and imposing congregational independence on a hierarchical denomination that has gone to great lengths to express its theological principles in legal language seems no less entangling. It not only interferes with the free exercise of non-congregational religions, but also establishes congregationalism as a state-supported theological doctrine.
I still think that the “principles of governance” analysis is more consistent with First Amendment principles, but “neutral principles” as applied in this decision is not grossly inconsistent.
#2. Thanks for the affirmation of what I was thinking about the decision. Neutral principles of property law would preclude the use of so-called denominational “trust” clauses in the deciding of these cases. My additional concern about the decision would be that anytime a denomination changes its canons/rules with regard to the disposition of property those “votes” are taken by people without any fiduciary responsibility to the owners of that property. The “chilling effect” I fear will be for any future enthusiasm for starting or expanding a new church. Under neutral principles, is it possible that remaining TEC parishes could now sue for at least one trustee from the diocese or national church on the deeds as well as a mandated payment for mortgage or maintenance expenses?
Will this ruling adversely affect the growth of the Anglican Church in North America? I doubt it, and if anything, it will help it. People are far too smart to be taken in by anything TEC’s leadership says, and in particular, +Bruno’s statement about “reconciling” with the parishes involved in this lawsuit. It’s like “Come into my parlor, said the spider to the fly.”
#3 Thanks for your input. It did not know there were such documents. My former congregation was a parish before the creation of the diocese and I agree that there will be a number of factors to be considered.
Subscribing for now…thanks
Intercessor
#3. I appreciate the well considered argument. What has to be considered by applying neutral principles is was the language of the Denis Canon sufficient in establishing the property relationship between national church, diocese and local parish? Under neutral principles analysis, in addition to defining their property relationships in church law, religious organizations should consider the language in their secular legal documents, such as deeds and articles of incorporation. Why was this not done by TEC and the diocese, years ago? Was there a perception that there might have been a backlash from the congregations? I’m just guessing but I think most Episcopalians were asleep at the wheel as far as the Denis Canon or anything else coming out of a GC. Did messing with the deeds potentially expose TEC and diocese to potential financial liability for parish property? Property ownership cuts both ways, its a liability before its an asset…
As I have mentioned previously at T19, these kinds of discussions are very important. I agree they are indeed essential. But it is also important to observe that they are by necessity discussions framed solely by the theological concept of Law. That is, they are discussions framed around the concept of who is in the Right. The unspoken idea is that if 815 can be shown to be the “rightful” owner of the property than they should indeed use the courts to throw its current tenants out, etc.
But Christianity also has another paradigm, which the world knows not, and that is Grace. A grace based decision making process, if 815 were to employ one, would say: it is not important to us to know whether we are “right” in this property dispute. What’s clear is that we have, through decisions we have made (GC 2003 etc.) deeply wounded the consciences of some of our parishes. Therefore we’ll do everything we can to work out some kind of settlement with them. Not because the property is not our “by right” (maybe it is) but simply because we love these people.
A wonderful (if unheeded) call to grace issued to 815 was given by Paul Zahl back in early 2004. It’s still worth reading, especially in its deep theological insights into how graceful loving works:
http://www.adventbirmingham.org/articles.asp?ID=1625
Jon,
I agree completely. Anytime that a situation has deteriorated enough to require litigation, somebody (often both parties) have stopped acting reasonably. Not even the lawyers like to see that happen, no matter how much money they might make out of it. The fee isn’t worth the guilt at witnessing such a human tragedy.
When a congregational majority loses its buildings, they have been the victims of uncharity. However, when the minority faction in a parish or diocese (whether “reappraiser,” “communion conservative” or “federal conservative”) loses their church to a majority vote, they suffer none the less.
Here at T19, we often remember people who were driven out of their church (and parishes or dioceses that were driven out of TEC) by reappraisers, but there are also a significant number of folks who have effectively been forced out of their diocese or parish by a reasserter majority. Others (like my mother for example) have been involuntarily forced to choose between leaving TEC or leaving the local church community, even though they had belonged to both for decades, had intended to continue belonging to both for the rest of their lives, and regarded a split as unnecessary at this time.
It is would be wonderful if the parties could reach compromises that avoided all these bad outcomes, but the only way to do so would be for both parties to accept the necessity of sacrificing something in the interest of compromise. Absent the “spirit that was in Christ Jesus, who did not cling to equality with God but emptied himself,” litigation is the remaining alternative.
If that happens, we would all prefer the courts to apply good law rather than bad law that is going to create precedents that come back to bite all of us later.
Dale: Regarding your argument in post #3, the fact remains that churches are being treated differently under the law then any other organization. Granted, agreements, etc., should be considered, but the central fact in most of the parish property cases is can the Dominant Party unilaterarly invoke a trust on the other Party’s property. TEC is perfectly able to legally organize itself as a heirarchical church – just as the Roman Catholic Church chose to do – and require that all property be retitled. TEC also could have chosen to require all parishes to explicitly acknowledge the trust relationship in writing, per the Statute of Frauds. But TEC chose not to (and observation says that it chose not to because it knew that the parishes would never agree to do so).
The folly of the church heirarchy approach will probably be revealed in the departing diocese litigation. What happens when the interpretation of TEC’s C&C;are disagreed upon? Who is the “heirarchical church” then, Dale? Who decides, and by what principles? In the end, it will all come down to neutral principles anyway, because that is the only fair and logical way to arbitrate the disputes.
#8 Palagious, your comment about Episcopalians being asleep at the wheel echoes what I’ve been saying for years.
For years, it has been my experience that people in the pews in most Episcopal churches just don’t give a hoot about what goes on in the Church unless it affects them and their parish, yet when the present crisis arose, they were surprised that it happened!
Years ago, they had their chance to speak out against the heresies being perpetrated, yet they said nothing. They had their chance to send concerned delegates to General Convention, and they didn’t. They tried to voice their opinions at diocesan conventions, but were outmaneuvered and outvoted.
They didn’t bother to get organized, and what happened? “Integrity” happened! The proponents of New Age Thought happened, and they took control of the seminaries, and from them came the crop of bishops that they’re now stuck with. Along with those bishops came the heresies which have ruined the Church.