This is a victory (in South Carolina, at least) for traditional principles of trust law, and a complete rout of TEC’s theory that the Dennis Canon can override State law. It also puts the lie (read it carefully, folks) to claims of “stealing Church property,” because it makes clear whose property it was all along. Walter Dennis should be spinning in his grave.
Hmmmm…I think there might be more credence now for a review by the US Supreme court (I was dubious in the past) because we have two State Supreme Courts (South Carolina and California) ruling in different ways.
…because we have two State Supreme Courts (South Carolina and California) ruling in different ways.
It’s a little more complicated than that as I read the SC ruling. There the state supremes are basically ruling on the application of SC state law as being consistent with the neutral principals of law position in this case. That’s clearly a defeat for the TEC. It seems very unlikely to me that the US Supremes would overturn the SC ruling. In the CA case, the US Supremes could still uphold the CA court position (or simply not grant cert) and TEC could still win.
Still between this and TX, it must be an unhappy weekend at 815…
#4- Did not the Calif Supremes rule in favor of Neutral Principal Laws then provoked their activism against the law and stated without any evidence that ECUSA is a hieracrchy therefore upheld the Dennis Canon against the parishes (not the Diocese who has not had its’ full day in the court of appeals.)
Intercessor
BTW I am confident that BrianT19 will set us all straight on this.
Actually this was a vicious vast right wing conspiracy to undermine the Denis Canon whilst appearing to be a proponent of PECUSA claims. No doubt the dreaded (albino) monks of the corner will be battling in the streets again for control of property in the name of the nonexistent hierarchy.
I predict that you will be seeing vignettes such as this on blogs of the liberal members of the ECUSA/TEC/GCC/EO-PAC/same sex union affirming “church” soon. As soon as they have finished Dan Brown’s new book and have time to absorb the impact of what the great and glorious state of SC has just rendered their “preciousssssssssss” Denis canon for two Dioceses: DioSC and DioUpperSC.
While it saddens me (briefly) that DioSC should lose anything from Glory be to God on high! This decision (not counting the hundreds of thousands of dollars from the widows’ mites it has recieved from the faithful) confirms one of my deepening views- that it’s best that so-called hierarchical structures ought to best be kept weak, and congregations strong, that tyranny by prelates be prevented from destroying the congregations they ought to serve. If the soi-disant hierarchy of TEO were a lot more fearful of annoying the grass roots the poisonous weed of false prophecy would have less opportunity to grow.
Furthermore, we hold that neither the 2000 Notice nor the Dennis Canon has any legal effect on title to the All Saints congregation’s property. A trust “may be created by either declaration of trust or by transfer of property….†Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property.
If the U.S. Supreme Court would adopt this principle without carving out the exception for religious groups (i.e. make churches subject to the same trust law as everybody else) then TEC’s litigation strategy would spectacularly fail.
Intercessor – what the Cal. Supremes did was claim to adopt the “neutral principles” approach, then substantively apply the deferential approach. Quite frankly, speaking as one trained in the law and who works with the law daily, I was quite disappointed with the quality of the Cal. Supremes’ decision.
As in # 12 jamesw I agree that the “momey” paragraphs are:
“Furthermore, we hold that neither the 2000 Notice nor the Dennis Canon has any legal effect on title to the All Saints congregation’s property. A trust “may be created by either declaration of trust or by transfer of property….†Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. [b]Therefore, the recordation of the 2000 Notice could not have created a trust over the property.[/b]
As a very smart Southern lawyer friend of mine recently said: “A third party cannot impose their own trust over someone else’s already existing trust.” Yes. Apparently this is so.
For the aforementioned reasons, we hold that title to the property at issue is held by All Saints Parish, Waccamaw, Inc., [b]the Dennis Canons had NO LEGAL EFFECT on the title to the congregation’s property,[/b] and the 2000 Notice should be removed from the Georgetown County records.”
Further up in the document the case is made that the issue of “hierarchical vs congregational” principle in regard to church structures is trumped by the “neutral principle” approach. That is, the law should strive to avoid making any value judgements on the religious nature of the group, but rather judge according to accepted principles of property law. And this is what they did. They are also identifying their opinion as conforming with the principles required by the US Supreme Court.
There could not be better news. All this effectively renders the Dennis Canon null and void. If TEC appeals to the Supreme Court on the basis of the Dennis Canon — and the Supremes are faithful to their own principles (?!?) then the Dennis Canon is no longer a threat.
I couldn’t be happier to hear any other news. YAY! There is real hope of disentangling from TEC WITH the Family Silver intact after all.
Would someone mind taking the time to give me a brief background on this case in terms of Bishop Lawrence and Bishop Salmon and their views on it? For what reasons did the diocese of South Carolina and Bishop Salmon continue to pursue the case after the congregation left TEC in 2005? Who was bishop when the suit began? Thanks, the details are fuzzy for me, and I need the Cliff Notes version.
WOW! Finally a ruling that appears to apply the law, as summed up in the following statement from the ruling: “It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another”
This is good horse sense from the SCSC. If they had ruled otherwise there would be nothing to prevent, say, Dr. Harmon from claiming trusteeship over the property of everyone who posts here simply because they didn’t immediately cancel their membership the moment he made such a declaration. Ridiculous.
815 channels Harvey Korman:
Hedley Lamarr: Wait a minute… there might be legal precedent. Of course! Land-snatching!
[grabs a law book]
Hedley Lamarr: Land, land… “Land: see Snatch.”
[flips back several pages]
Hedley Lamarr: Ah, Haley vs. United States. Haley: 7, United States: nothing. You see, it can be done!
The problem with this is that the decision simply assumes (without considering the matter) that South Carolina can switch from being a “deference” state to a “neutral principles” state without thereby interfering with anybody’s established property rights.
As the opinion notes, until 13 years ago both the Episcopal Dioceses in South Carolina and all the parishes in the state were subject to the “deference” principle, under which the congregations and members of a hierarchical church were assumed to have acceded to the authority of the denomination by virtue of having joined that denomination rather than one organized on a congregational basis. All these entities conducted their business with one another under the assumption that their respective legal interests (and the ecclesiological assumptions underlaying them) would not be abrogated by state action. Not only was South Carolina a “deference” state until 1996, but its courts had insisted that this was the only constitutionally possible regime… which it arguably was until the US Supreme Court allowed the “neutral principles” alternative in 1979. So, in 1987 when The Diocese of South Carolina expressly adopted the Dennis Canon, there was clearly established local law that gave General Convention and the Diocese the authority to make rules that were binding on local congregations.
Of course, this was not a new rule. Going all the way back to colonial times and before, Anglo-American common and ecclesiastical laws had agreed that the local congregation’s existence was dependent on its status as a congregation of the denomination whose worship it had been created to conduct. A parish of the Church of England cannot vote itself into a Presbyterian church because it was created and continues to exist solely “for divine Worship of the Church of England,” as the founding documents of this South Carolina parish expressly stated. Similarly, a South Carolina chapel established as a preaching station of a Methodist Conference could not (prior to 1996) vote itself Episcopalian without the Conference’s consent. The Methodist Discipline (North and South) has for well over a century contained provisions substantively identical to the Dennis Canon.
“Deference” was the law everywhere in the United States until the spread, beginning in the early 20th century, of the “neutral principles” alternative that was allowed by the US Supreme Court in 1979 and adopted in South Caroline only in 1996. The Dennis Canon did not represent a land grab by General Convention, but only an effort to describe and preserve the existing hierarchical relationship between the national, diocesan, and local institutions of the Episcopal Church as they had arguably existed since the first parishes were organized in this new land in the early 17th century. The point was to preserve the same relationship in the new “neutral principles” states as had always existed there before, as well as to guarantee uniformity with the states that continued to honor “deference.”
Until the emergence of the alternative legal theory, there was no need to write deference principles into church law or title documents because everyone could take it for granted that “St. X Protestant Episcopal Church in Y, South Carolina,” which was organized to conduct the worship and organized life of the Episcopal Church in Y, was bound to the authority of the Episcopal Church, whether its title deeds said so or not. When the states (for example, South Carolina in 1996) shifted to “neutral principles,” they insisted on reading documents from as long ago as the 17th century as if the people writing those documents were able to anticipate the future change in the law.
At the time the Diocese of South Carolina adopted the Dennis Canon in 1987, it had every expectation that it was binding on all the diocese’s congregations [b]because that was actually the law at the time.[/b] It was not an effort to impose a trust from outside on a non-consenting independent corporation (as this decision holds), because South Carolina Episcopal parishes were not independent corporations in 1987. This judgment, in effect, holds that the adoption of “neutral principles” in 1996 divested the Diocese and National Church of their existing property interests without any compensation.
I have no clue, and nobody has ever managed to give me any notion, how an Episcopal diocese that suddenly had its legal relationship with its parishes fundamentally altered by local adoption of “neutral principles” was supposed to fix the problem. It could, presumably, politely ask each of the parishes to convey title back to a diocesan-controlled entity, but that has at least two major problems: (1) there would be no legal way to enforce the request on a parish that refused to comply, and (2) it would constitute an admission by the diocese that its parishes [b]were[/b] independent entities capable of conveying the properties they used.
In short, in order to preserve episcopal, presbyterian, or connectional government, the denominations holding those principles for reasons of theological conscience would be required by the state to ignore their principles and behave (at least temporarily) as if congregationalism was the only proper way to organize the Church of God. If that isn’t establishment of a religious doctrine by state action, I’m not sure what is. People have died to preserve those ecclesiological principles, folks.
That left the hierarchical churches with only the alternative of having the properly constituted governing authorities of the denomination declare that the ecclesiological relationship between it and its members was to continue as it had formerly been, notwithstanding any state action. Hence the Dennis Canon and its adoption in South Carolina, 9 years prior to the state action actually being taken.
It does not take a rocket scientist to see where the notion that congregations are necessarily independent entities can lead. How is a diocese to enforce its disciplinary canons if a defrocked pastor’s parish simply chooses to ignore the decree? How is a bishop to enforce use of the authorized liturgy when the highest court in the state has stated that he is powerless to control a local congregation? In short, how is Bishop Lawrence going to keep South Carolina parishes from calling gay clergy and prohibiting gay blessings? By decree of the Supreme Court, “there is no king in Israel and every man may do as he pleases.”
At The Church of the Incarnation, Dallas, on 5-6 February 2010, ACI will host a conference with the title “Who’s in Charge? Hierarchy and the Episcopal Church.” One concern of the conference is establishing that ‘hierarchy’ is a concept deployed differently by US churches, and to that end we have experts from the United Methodist Church (Professor Wm Abraham), the Roman Catholic Church (Mary Edlund, Chancellor of the RC Diocese of Dallas), and our own US context scholars (Attorney Mark McCall; Philip Turner; Robert Prichard from VTS; Bishop Stanton) and others from the UK.
Our advertising is underway. Obviously the news in SC and TX will/should accelerate wider interest. These are issues however that ACI has been engaged with for some time, so if you are interested, watch for announcements. We are grateful for Michael Watson’s hard work, reproduced for wider study at our site. To speak of ‘hierarchy’ is not simply to raise the question of ‘neutral principles’ or ‘deference’ — rather, it is to raise the question of the complexity of different models of polity within US churches, which in SC the judges are grasping.
Utah Benjamin (#14), there is a brief sketch of the background of this litigation toward the bottom of [url=http://accurmudgeon.blogspot.com/2008/08/trigger-happy-church.html]this post[/url] at the Curmudgeon’s site.
Dale Rye (#17), what you say is true, but it cuts both ways. The Dennis Canon was rushed through General Convention 1979 as a knee-jerk and last-minute reaction to some free legal advice offered by Justice Blackmun in the course of deciding [i]Jones v. Wolf[/i] on the basis of [b]neutral principles of law[/b]. So ECUSA began its history with the Dennis Canon by playing with fire — it thought it could change property law in all 50 States just by the adoption of a single canon because it was “hierarchical”, while the only thing that even conceivably could make it think it could do so was some ill-advised and poorly worded dicta in an opinion applying “neutral principles.” And even in doing that, it chose to ignore Justice Blackmun’s lawyerly proviso: ” . . . provided that it [the trust the hierarchical church wants to impose] is in [b]legally cognizable form[/b].”
Today, the South Carolina Supreme Court simply applied the logic of Justice Blackmun’s proviso, and held that the Dennis Canon does not create a trust that is in “legally cognizable form.” ECUSA has no one to blame but itself — and Bishop Walter Dennis.
It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another.
For those Dioceses that did or do not hold the TITLE to parish properties prior to the Denis Canon, it seems that this case may be useful as a precedent for court cases involving other seceding parishes. At least, I hope so, but I’m not a lawyer.
Of course, “trust” has a moral and not simply legal connotation.
Let’s remember that we are first and last talking about the “trust” the parish churches have placed in the General Convention to uphold the substance of the Faith. When this trust is broken, the rest is the “trust” of the world.
Dale: Another problem is that theologically “heirarchical” churches were “heirarchical” in much more then just property ownership. If parishes in the past agreed to join the “heirarchical” denomination, they did so believing that the “heirarchy” would preserve the doctrine and discipline as “this Church has received them.” The fact is that the “heirarchy” has not kept its part of the bargain. And what’s more, the “heirarchy” isn’t even enforcing its own rules anymore (see the lack of any discipline against bishops offering open communion). Much has changed since the 1700’s, Dale, and it seems bizarre to me to allow 95% of that change, but refusing to adapt in this one area. Had the folks back in the 1700’s knew what wingnuts were running TEC today, they would have NEVER agreed to the sort of implicit understanding you suggest.
Dale Rye, you make an interesting argument here, but I wonder about the legal support for it. Are you arguing for application on a prospective basis only of judicial decisions which announce rules of law which differ from those applied previously? Consider Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 Harv. J.L. & Pub. Pol’y 811 (2003), where the first sentence reads “Historically, rules of law announced in judicial decisions were applied retroactively–that is, to conduct or events that had occurred prior to the dates of those decisions.†And the footnote that is attached to it reads [blockquote]“Frequently quoted in connection with the retroactive (or, as some prefer, the retrospective) application of judicial decisions is the following passage from Justice Holmes’s opinion in Kuhn v. Fairmont Coal Co.: “I know of no authority in this court to say that . . . decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years.” 215 U.S. 349, 372 (1910) (Holmes, J., dissenting). See also United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982) (“The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student.”); Thomas S. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 VA. L. REV. 201, 205 (1965) (“It is the common-law tradition that judicial precedents normally have retroactive as well as prospective effect.”). Indeed, the retroactive application of judicial decisions has been so much the historical norm that the very “concept of retroactivity is a relative newcomer to our jurisprudence.” Kermit Roosevelt III, A Little Theory Is a Dangerous Thing: The Myth of Adjudicative Retroactivity, 31 CONN. L. REV. 1075, 1082 (1999).[/blockquote]There are also some things that can be said about the historical picture you put forward and the reliance insterests said to exist, but let me leave it at mentioning the above for now since I have to run to an event.
The South Carolina State Supreme Court has just declared that parishes are free to dissociate from the diocese and realign with another structure (the AMiA). It certainly appears that this gives a green light to the entire diocese realigning without fear of litigation rather than having piecemeal defections is VERY much on-topic especially when one the largest parishes is at this moment thinking about jumping ship. In fact, this is probably the most pertinent and important question to be asking in light of the ruling.
Dale Rye always speaks with a clear voice of intelligence and reason, a valued trait in this discussion. I am curious as to his opinion re the case which a CA church is attempting to bring to the Supreme Court testing the validity of the Dennis Canon, and whether, should the US Supreme Court agree to hear it and should it rule that the Dennis Canon is valid, whethe that would supercede the SC Supreme Court ruling?
Decisions of the Supreme Court of the United States are binding on all courts. The oath of a trial judge to uphold the Constitution would include all Sup. Ct. cases interpreting the Constitution. On another matter, this case could have been decided on a narrow issue (estoppel by deed) and the court chose to lay down broad prinicples instead. I think this case helps other courts who want to apply neutral principles and are looking for precedent.
Dale: I think one of the problems with your assertions rest in the following excerpt:
I have no clue, and nobody has ever managed to give me any notion, how an Episcopal diocese that suddenly had its legal relationship with its parishes fundamentally altered by local adoption of “neutral principles†was supposed to fix the problem. It could, presumably, politely ask each of the parishes to convey title back to a diocesan-controlled entity, but that has at least two major problems: (1) there would be no legal way to enforce the request on a parish that refused to comply, and (2) it would constitute an admission by the diocese that its parishes were independent entities capable of conveying the properties they used.
What you describe here is not a heirarchical church, but rather a “wannabe” heirarchical church.
What you still have not answered for anyone is this. The Roman Catholic Church developed in the very same legal environment as TEC, yet it seems to have had very little problem in adapting to the legal changes you describe. So my question to you is simply this – if it is so impossible for TEC to adapt, why was it so simple for the Roman Catholics? And doesn’t this tell us something about the relative polity of each Church?
Re: Dale’s comment, “In short, how is Bishop Lawrence going to keep South Carolina parishes from calling gay clergy and prohibiting gay blessings?” Yes, and if the Dennis Cannon is absolute, what would prevent the General Convention and the Diocese (in theory) from imposing such clergy on an unwilling congregation? God never promised us freedom from trouble in this transitory life, but we can work out our troubles better if we recognize that no human authorities, property titles or cannons are absolute. Only God and his word are absolute. The SCSC has recognized limitations of the property claims of TEC and the diocese. The ruling does not make us a congregational church, but it gives congregations some welcome breathing room as we work to resolve the difficult issues facing us.
A poster at Mark Harris’ site states that Bishop Salmon “gave every deed back to the vestries of the parishes in SC” some years ago. If the Dennis canon did not invalidate his authority to do this – and I will be surprised if that question does not arise – this could be a strong, if not deciding factor in the SC situation. Can you perhaps confirm that this is the case, Fr Harmon?
This is a victory (in South Carolina, at least) for traditional principles of trust law, and a complete rout of TEC’s theory that the Dennis Canon can override State law. It also puts the lie (read it carefully, folks) to claims of “stealing Church property,” because it makes clear whose property it was all along. Walter Dennis should be spinning in his grave.
This is simply fantastic news.
WOW.
Incredible for our state — neutral principles of law, and declared so by the Supreme Court of SC.
Hmmmm…I think there might be more credence now for a review by the US Supreme court (I was dubious in the past) because we have two State Supreme Courts (South Carolina and California) ruling in different ways.
…because we have two State Supreme Courts (South Carolina and California) ruling in different ways.
It’s a little more complicated than that as I read the SC ruling. There the state supremes are basically ruling on the application of SC state law as being consistent with the neutral principals of law position in this case. That’s clearly a defeat for the TEC. It seems very unlikely to me that the US Supremes would overturn the SC ruling. In the CA case, the US Supremes could still uphold the CA court position (or simply not grant cert) and TEC could still win.
Still between this and TX, it must be an unhappy weekend at 815…
Deleted–Unnecessarily sarcastic in tone
#4- Did not the Calif Supremes rule in favor of Neutral Principal Laws then provoked their activism against the law and stated without any evidence that ECUSA is a hieracrchy therefore upheld the Dennis Canon against the parishes (not the Diocese who has not had its’ full day in the court of appeals.)
Intercessor
BTW I am confident that BrianT19 will set us all straight on this.
God does indeed vindicate. I am thrilled.
Actually this was a vicious vast right wing conspiracy to undermine the Denis Canon whilst appearing to be a proponent of PECUSA claims. No doubt the dreaded (albino) monks of the corner will be battling in the streets again for control of property in the name of the nonexistent hierarchy.
I predict that you will be seeing vignettes such as this on blogs of the liberal members of the ECUSA/TEC/GCC/EO-PAC/same sex union affirming “church” soon. As soon as they have finished Dan Brown’s new book and have time to absorb the impact of what the great and glorious state of SC has just rendered their “preciousssssssssss” Denis canon for two Dioceses: DioSC and DioUpperSC.
It is a GOOD day.
Yes, a good day for hope.
While it saddens me (briefly) that DioSC should lose anything from Glory be to God on high! This decision (not counting the hundreds of thousands of dollars from the widows’ mites it has recieved from the faithful) confirms one of my deepening views- that it’s best that so-called hierarchical structures ought to best be kept weak, and congregations strong, that tyranny by prelates be prevented from destroying the congregations they ought to serve. If the soi-disant hierarchy of TEO were a lot more fearful of annoying the grass roots the poisonous weed of false prophecy would have less opportunity to grow.
Forgive the poor typing above. The iPhone is a less than perfect instrument in the hands of an incompetent.
The money quote from the decision is this
If the U.S. Supreme Court would adopt this principle without carving out the exception for religious groups (i.e. make churches subject to the same trust law as everybody else) then TEC’s litigation strategy would spectacularly fail.
Intercessor – what the Cal. Supremes did was claim to adopt the “neutral principles” approach, then substantively apply the deferential approach. Quite frankly, speaking as one trained in the law and who works with the law daily, I was quite disappointed with the quality of the Cal. Supremes’ decision.
As in # 12 jamesw I agree that the “momey” paragraphs are:
“Furthermore, we hold that neither the 2000 Notice nor the Dennis Canon has any legal effect on title to the All Saints congregation’s property. A trust “may be created by either declaration of trust or by transfer of property….†Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. [b]Therefore, the recordation of the 2000 Notice could not have created a trust over the property.[/b]
As a very smart Southern lawyer friend of mine recently said: “A third party cannot impose their own trust over someone else’s already existing trust.” Yes. Apparently this is so.
For the aforementioned reasons, we hold that title to the property at issue is held by All Saints Parish, Waccamaw, Inc., [b]the Dennis Canons had NO LEGAL EFFECT on the title to the congregation’s property,[/b] and the 2000 Notice should be removed from the Georgetown County records.”
Further up in the document the case is made that the issue of “hierarchical vs congregational” principle in regard to church structures is trumped by the “neutral principle” approach. That is, the law should strive to avoid making any value judgements on the religious nature of the group, but rather judge according to accepted principles of property law. And this is what they did. They are also identifying their opinion as conforming with the principles required by the US Supreme Court.
There could not be better news. All this effectively renders the Dennis Canon null and void. If TEC appeals to the Supreme Court on the basis of the Dennis Canon — and the Supremes are faithful to their own principles (?!?) then the Dennis Canon is no longer a threat.
I couldn’t be happier to hear any other news. YAY! There is real hope of disentangling from TEC WITH the Family Silver intact after all.
Would someone mind taking the time to give me a brief background on this case in terms of Bishop Lawrence and Bishop Salmon and their views on it? For what reasons did the diocese of South Carolina and Bishop Salmon continue to pursue the case after the congregation left TEC in 2005? Who was bishop when the suit began? Thanks, the details are fuzzy for me, and I need the Cliff Notes version.
WOW! Finally a ruling that appears to apply the law, as summed up in the following statement from the ruling: “It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another”
This is good horse sense from the SCSC. If they had ruled otherwise there would be nothing to prevent, say, Dr. Harmon from claiming trusteeship over the property of everyone who posts here simply because they didn’t immediately cancel their membership the moment he made such a declaration. Ridiculous.
815 channels Harvey Korman:
Hedley Lamarr: Wait a minute… there might be legal precedent. Of course! Land-snatching!
[grabs a law book]
Hedley Lamarr: Land, land… “Land: see Snatch.”
[flips back several pages]
Hedley Lamarr: Ah, Haley vs. United States. Haley: 7, United States: nothing. You see, it can be done!
The problem with this is that the decision simply assumes (without considering the matter) that South Carolina can switch from being a “deference” state to a “neutral principles” state without thereby interfering with anybody’s established property rights.
As the opinion notes, until 13 years ago both the Episcopal Dioceses in South Carolina and all the parishes in the state were subject to the “deference” principle, under which the congregations and members of a hierarchical church were assumed to have acceded to the authority of the denomination by virtue of having joined that denomination rather than one organized on a congregational basis. All these entities conducted their business with one another under the assumption that their respective legal interests (and the ecclesiological assumptions underlaying them) would not be abrogated by state action. Not only was South Carolina a “deference” state until 1996, but its courts had insisted that this was the only constitutionally possible regime… which it arguably was until the US Supreme Court allowed the “neutral principles” alternative in 1979. So, in 1987 when The Diocese of South Carolina expressly adopted the Dennis Canon, there was clearly established local law that gave General Convention and the Diocese the authority to make rules that were binding on local congregations.
Of course, this was not a new rule. Going all the way back to colonial times and before, Anglo-American common and ecclesiastical laws had agreed that the local congregation’s existence was dependent on its status as a congregation of the denomination whose worship it had been created to conduct. A parish of the Church of England cannot vote itself into a Presbyterian church because it was created and continues to exist solely “for divine Worship of the Church of England,” as the founding documents of this South Carolina parish expressly stated. Similarly, a South Carolina chapel established as a preaching station of a Methodist Conference could not (prior to 1996) vote itself Episcopalian without the Conference’s consent. The Methodist Discipline (North and South) has for well over a century contained provisions substantively identical to the Dennis Canon.
“Deference” was the law everywhere in the United States until the spread, beginning in the early 20th century, of the “neutral principles” alternative that was allowed by the US Supreme Court in 1979 and adopted in South Caroline only in 1996. The Dennis Canon did not represent a land grab by General Convention, but only an effort to describe and preserve the existing hierarchical relationship between the national, diocesan, and local institutions of the Episcopal Church as they had arguably existed since the first parishes were organized in this new land in the early 17th century. The point was to preserve the same relationship in the new “neutral principles” states as had always existed there before, as well as to guarantee uniformity with the states that continued to honor “deference.”
Until the emergence of the alternative legal theory, there was no need to write deference principles into church law or title documents because everyone could take it for granted that “St. X Protestant Episcopal Church in Y, South Carolina,” which was organized to conduct the worship and organized life of the Episcopal Church in Y, was bound to the authority of the Episcopal Church, whether its title deeds said so or not. When the states (for example, South Carolina in 1996) shifted to “neutral principles,” they insisted on reading documents from as long ago as the 17th century as if the people writing those documents were able to anticipate the future change in the law.
At the time the Diocese of South Carolina adopted the Dennis Canon in 1987, it had every expectation that it was binding on all the diocese’s congregations [b]because that was actually the law at the time.[/b] It was not an effort to impose a trust from outside on a non-consenting independent corporation (as this decision holds), because South Carolina Episcopal parishes were not independent corporations in 1987. This judgment, in effect, holds that the adoption of “neutral principles” in 1996 divested the Diocese and National Church of their existing property interests without any compensation.
I have no clue, and nobody has ever managed to give me any notion, how an Episcopal diocese that suddenly had its legal relationship with its parishes fundamentally altered by local adoption of “neutral principles” was supposed to fix the problem. It could, presumably, politely ask each of the parishes to convey title back to a diocesan-controlled entity, but that has at least two major problems: (1) there would be no legal way to enforce the request on a parish that refused to comply, and (2) it would constitute an admission by the diocese that its parishes [b]were[/b] independent entities capable of conveying the properties they used.
In short, in order to preserve episcopal, presbyterian, or connectional government, the denominations holding those principles for reasons of theological conscience would be required by the state to ignore their principles and behave (at least temporarily) as if congregationalism was the only proper way to organize the Church of God. If that isn’t establishment of a religious doctrine by state action, I’m not sure what is. People have died to preserve those ecclesiological principles, folks.
That left the hierarchical churches with only the alternative of having the properly constituted governing authorities of the denomination declare that the ecclesiological relationship between it and its members was to continue as it had formerly been, notwithstanding any state action. Hence the Dennis Canon and its adoption in South Carolina, 9 years prior to the state action actually being taken.
It does not take a rocket scientist to see where the notion that congregations are necessarily independent entities can lead. How is a diocese to enforce its disciplinary canons if a defrocked pastor’s parish simply chooses to ignore the decree? How is a bishop to enforce use of the authorized liturgy when the highest court in the state has stated that he is powerless to control a local congregation? In short, how is Bishop Lawrence going to keep South Carolina parishes from calling gay clergy and prohibiting gay blessings? By decree of the Supreme Court, “there is no king in Israel and every man may do as he pleases.”
At The Church of the Incarnation, Dallas, on 5-6 February 2010, ACI will host a conference with the title “Who’s in Charge? Hierarchy and the Episcopal Church.” One concern of the conference is establishing that ‘hierarchy’ is a concept deployed differently by US churches, and to that end we have experts from the United Methodist Church (Professor Wm Abraham), the Roman Catholic Church (Mary Edlund, Chancellor of the RC Diocese of Dallas), and our own US context scholars (Attorney Mark McCall; Philip Turner; Robert Prichard from VTS; Bishop Stanton) and others from the UK.
Our advertising is underway. Obviously the news in SC and TX will/should accelerate wider interest. These are issues however that ACI has been engaged with for some time, so if you are interested, watch for announcements. We are grateful for Michael Watson’s hard work, reproduced for wider study at our site. To speak of ‘hierarchy’ is not simply to raise the question of ‘neutral principles’ or ‘deference’ — rather, it is to raise the question of the complexity of different models of polity within US churches, which in SC the judges are grasping.
Utah Benjamin (#14), there is a brief sketch of the background of this litigation toward the bottom of [url=http://accurmudgeon.blogspot.com/2008/08/trigger-happy-church.html]this post[/url] at the Curmudgeon’s site.
Dale Rye (#17), what you say is true, but it cuts both ways. The Dennis Canon was rushed through General Convention 1979 as a knee-jerk and last-minute reaction to some free legal advice offered by Justice Blackmun in the course of deciding [i]Jones v. Wolf[/i] on the basis of [b]neutral principles of law[/b]. So ECUSA began its history with the Dennis Canon by playing with fire — it thought it could change property law in all 50 States just by the adoption of a single canon because it was “hierarchical”, while the only thing that even conceivably could make it think it could do so was some ill-advised and poorly worded dicta in an opinion applying “neutral principles.” And even in doing that, it chose to ignore Justice Blackmun’s lawyerly proviso: ” . . . provided that it [the trust the hierarchical church wants to impose] is in [b]legally cognizable form[/b].”
Today, the South Carolina Supreme Court simply applied the logic of Justice Blackmun’s proviso, and held that the Dennis Canon does not create a trust that is in “legally cognizable form.” ECUSA has no one to blame but itself — and Bishop Walter Dennis.
To repeat:
For those Dioceses that did or do not hold the TITLE to parish properties prior to the Denis Canon, it seems that this case may be useful as a precedent for court cases involving other seceding parishes. At least, I hope so, but I’m not a lawyer.
[Off topic comment deleted by Elf]
Of course, “trust” has a moral and not simply legal connotation.
Let’s remember that we are first and last talking about the “trust” the parish churches have placed in the General Convention to uphold the substance of the Faith. When this trust is broken, the rest is the “trust” of the world.
Dale: Another problem is that theologically “heirarchical” churches were “heirarchical” in much more then just property ownership. If parishes in the past agreed to join the “heirarchical” denomination, they did so believing that the “heirarchy” would preserve the doctrine and discipline as “this Church has received them.” The fact is that the “heirarchy” has not kept its part of the bargain. And what’s more, the “heirarchy” isn’t even enforcing its own rules anymore (see the lack of any discipline against bishops offering open communion). Much has changed since the 1700’s, Dale, and it seems bizarre to me to allow 95% of that change, but refusing to adapt in this one area. Had the folks back in the 1700’s knew what wingnuts were running TEC today, they would have NEVER agreed to the sort of implicit understanding you suggest.
Dale Rye, you make an interesting argument here, but I wonder about the legal support for it. Are you arguing for application on a prospective basis only of judicial decisions which announce rules of law which differ from those applied previously? Consider Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 Harv. J.L. & Pub. Pol’y 811 (2003), where the first sentence reads “Historically, rules of law announced in judicial decisions were applied retroactively–that is, to conduct or events that had occurred prior to the dates of those decisions.†And the footnote that is attached to it reads [blockquote]“Frequently quoted in connection with the retroactive (or, as some prefer, the retrospective) application of judicial decisions is the following passage from Justice Holmes’s opinion in Kuhn v. Fairmont Coal Co.: “I know of no authority in this court to say that . . . decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years.” 215 U.S. 349, 372 (1910) (Holmes, J., dissenting). See also United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982) (“The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student.”); Thomas S. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 VA. L. REV. 201, 205 (1965) (“It is the common-law tradition that judicial precedents normally have retroactive as well as prospective effect.”). Indeed, the retroactive application of judicial decisions has been so much the historical norm that the very “concept of retroactivity is a relative newcomer to our jurisprudence.” Kermit Roosevelt III, A Little Theory Is a Dangerous Thing: The Myth of Adjudicative Retroactivity, 31 CONN. L. REV. 1075, 1082 (1999).[/blockquote]There are also some things that can be said about the historical picture you put forward and the reliance insterests said to exist, but let me leave it at mentioning the above for now since I have to run to an event.
The South Carolina State Supreme Court has just declared that parishes are free to dissociate from the diocese and realign with another structure (the AMiA). It certainly appears that this gives a green light to the entire diocese realigning without fear of litigation rather than having piecemeal defections is VERY much on-topic especially when one the largest parishes is at this moment thinking about jumping ship. In fact, this is probably the most pertinent and important question to be asking in light of the ruling.
Dale Rye always speaks with a clear voice of intelligence and reason, a valued trait in this discussion. I am curious as to his opinion re the case which a CA church is attempting to bring to the Supreme Court testing the validity of the Dennis Canon, and whether, should the US Supreme Court agree to hear it and should it rule that the Dennis Canon is valid, whethe that would supercede the SC Supreme Court ruling?
Decisions of the Supreme Court of the United States are binding on all courts. The oath of a trial judge to uphold the Constitution would include all Sup. Ct. cases interpreting the Constitution. On another matter, this case could have been decided on a narrow issue (estoppel by deed) and the court chose to lay down broad prinicples instead. I think this case helps other courts who want to apply neutral principles and are looking for precedent.
Dale: I think one of the problems with your assertions rest in the following excerpt:
What you describe here is not a heirarchical church, but rather a “wannabe” heirarchical church.
What you still have not answered for anyone is this. The Roman Catholic Church developed in the very same legal environment as TEC, yet it seems to have had very little problem in adapting to the legal changes you describe. So my question to you is simply this – if it is so impossible for TEC to adapt, why was it so simple for the Roman Catholics? And doesn’t this tell us something about the relative polity of each Church?
Re: Dale’s comment, “In short, how is Bishop Lawrence going to keep South Carolina parishes from calling gay clergy and prohibiting gay blessings?” Yes, and if the Dennis Cannon is absolute, what would prevent the General Convention and the Diocese (in theory) from imposing such clergy on an unwilling congregation? God never promised us freedom from trouble in this transitory life, but we can work out our troubles better if we recognize that no human authorities, property titles or cannons are absolute. Only God and his word are absolute. The SCSC has recognized limitations of the property claims of TEC and the diocese. The ruling does not make us a congregational church, but it gives congregations some welcome breathing room as we work to resolve the difficult issues facing us.
A poster at Mark Harris’ site states that Bishop Salmon “gave every deed back to the vestries of the parishes in SC” some years ago. If the Dennis canon did not invalidate his authority to do this – and I will be surprised if that question does not arise – this could be a strong, if not deciding factor in the SC situation. Can you perhaps confirm that this is the case, Fr Harmon?