Enter the Supreme Court of South Carolina — which decided unanimously (5 – 0) a case in the way I had argued it should be decided. (I do not claim any influence on the decision itself; just that I argued the state courts should follow common sense, and not allow a trust to be created by the Dennis Canon when the owner of the property had not signed a paper consenting to the trust.) Does the Episcoleft regard this decision as a correct decision under the law?
Not on your life. They regard it as an aberration, an anomaly, which is a blot upon the otherwise beautiful façade of the Church as they would have it established. In their vacuum of a blogworld, they cite themselves in endless circles to show how the decision is unworthy of serious consideration.
Since I believe in the concept of proof, let the unadulterated voices of the Episcoleft convict themselves in this affair. As far as I can determine, here is the unaltered history of the reporting of the decision by the Supreme Court of South Carolina in the blog world, with special attention paid to those blogs listed in “Eyes Left”, as well as here…
An ironically apt title 😉
[blockquote]I argued the state courts should follow common sense, and not allow a trust to be created by the Dennis Canon when the owner of the property had not signed a paper consenting to the trust[/blockquote]
I don’t think anybody disagrees. The real problem, though, is [i]who is the owner?[/i] Until the adoption of the “neutral principles” doctrine the real owner of church property (the party with ultimate authority to determine its use) was the decision-making body within that church organization… in the case of TEC, that was arguably General Convention or the South Carolina Diocesan Convention. I can readily show you a paper signed by General Convention consenting to the trust, namely the Dennis Canon itself, and I can show you a similar paper signed by the diocesan convention.
The question of whether the owner is the parish or the denomination was the ultimate question that the courts were asked to determine. Answering the question by simply assuming the answer is a circular argument: the parish is the owner because it is the owner, which never signed a trust paper; the diocese is not the owner because it is not the owner, so its trust paper doesn’t matter.
Almost every day in secular property disputes, courts go outside the four corners of the deed to determine the business relationship of the parties before answering the ultimate question of ownership. They do not consider themselves foreclosed in such cases from considering extrinsic evidence, such as partnership documents, franchise agreements, contractual obligations, and the like. If South Carolina genuinely wished to treat religious organizations “neutrally,” it would allow evidence of the fact that this parish voluntarily submitted to the authority of the Episcopal Church and the Diocese of South Carolina over 200 years ago… even though that submission is supported by thousands of “papers signed by the parish” over the years, though not the deeds.
Ignoring such evidence that would be allowable in suits involving secular parties is the very opposite of neutral. It is the creation of a presumption in state law that all local religious congregations are independent bodies in absolute control of the property they use, no matter what the extrinsic evidence might suggest. In short, it is an establishment of the ecclesiological doctrine of congregationalism and a burden placed on the free exercise of the ecclesiological doctrines of episcopalianism, presbyterianism, and connectionalism.
Dale the answer is simple. Create and file the appropriate documents. If TEC and the diocese wants the property then require all the parishes to sign quit claim deeds in favor of TEC and/or the diocese. Its simple and effective.
The EpiscoLeft runs away from this one:
You say that we are a hierarchical Church, yet from diocese to diocese one can prove beyond doubt that each bishop does what is right in his or her own eyes. Examples? How about communion of the unbaptized despite the current canons prohibiting it, “generous discretion” to redefine marriage despite the Prayer Book definition that contradicts the push for/acceptance of same-gender marriage,
the rewriting of the Great Thanksgiving at Grace Cathedral to include how the bread is broken for those who follow in the way of the Buddha, etc., etc., etc., etc. Please feel free to add to the list of how there is utter arrogance and hypocrisy by bishops who “do their own….uh….I mean….”The New Thing” and ignore canons.
So….why does this (Dennis) canon deserve serious adherence when so many other canons are being contradicted and ignored???
4, because the liberal/revisionists/reappraisers want to. It’s nothing more than raw power. If they want to do it they will and if they want to ignore it they will.
So let me get this straight–according to Haley, TEC has hoodwinked the state courts in New York, California, Colorado, New Jersey, etc. And all those judges are fools, falling for illogical arguments that even an non-lawyer can identify as flawed.
And if this keeps up, he implies, there will be a second American Revolution. Really? If TEC prevails in one more court case we should take up arms agains the United States? Am I reading that last line correctly?
Wow.
Actually, I consider the deference approach to be circular: ‘some body other than the parish is the owner because [i]they[/i] say they are the owner.” I don’t have a dog in this fight, but consider neutral principles to be a much more orderly, predictable (treat everyone the same) approach than some unilateral trust hidden in the archives of certain types of private organizations.
Exactly the quality of legal analysis we have come to expect from A.S. Haley. As interesting as it is useful.
Dale Rye,
I read you to maintain in comment no. 2 that TEC or a diocese can be the beneficiary of a trust created by the Dennis canon on the basis that TEC or the diocese “arguably†already is the owner of the property and therefore could make a declaration of trust. But in that circumstance (TEC or the diocese already being the beneficial owner), what would the declaration of trust say, what would be the purpose of it and who would be the beneficiaries? The usual TEC argument is that a trust interest already exists in favor of TEC and the diocese so the Dennis canon is merely declaratory of what already is the case, not that TEC or the diocese is already the owner giving it the power to create a trust in favor of someone else. You are saying something different and it is not obvious to me exactly how you think this should work.
Contrary to something else you say, there is no circularity involved in the South Carolina Supreme Court’s opinion. Prior to discussing the Dennis canon, the court examined the ownership history and reached conclusions as to ownership apart from the Dennis canon and then considered the effect of the Dennis canon under principles of trust law which it properly described as “axiomatic.†One has to start somewhere and generally the starting place is record title. And to identify an exception to basing ownership on where record title leads, a recognized legal doctrine is necessary. A generalized notion of “voluntary submission to authority†is not such a recognized exception in suits involving secular parties. Where, for example, is the description of the analysis you are arguing for in the Restatement of Trusts, which is comprehensive and last revised relatively recently?
The still outlying questions about hierarchy remain and here’s why.
General Convention has NOT officially amended (by our own rules) the canons defining marriage, the candidates for marriage, the proper candidates for communion, nor has the Prayer Book been changed (which we are told is the repository of what we teach). The liberals cannot change these by a full and obvious vote (up/down) so they are withered down by resolutions of the 2009 GC that mysteriously was given the power to override canons. The precendent is set: Now mere resolutions trump canons…which are too hard to change, so just resolve in GC to ignore the canons that you don’t agree with. At the same time still require people to agree with the very standards of unity(Constitution & Canons) that GC is allowed to obfuscate with impunity.
What GC has done is to codify the truth that were are independent dioceses. The canons really don’t matter after all….except the ones about stuff.
General Convention assembles as the central authority of TEC under the restrictions of the Constitution and Canons. The last GC has given up it’s own authority as the locus of inter-diocesan unity by failing to adhere to the very documents that all TEC leaders are required to sign allegiance to. Let’s remember that. We don’t sign oaths of allegiance to GC’s resolutions, but to the Constitution and Canons. But those standards were changed without applying the very methods required for them to be changed.
For THAT reason we are not hierarchical.