Read it all.
Like many others, I can’t help wondering how long the continuing TEC congregation will be able to keep the church up and running.
Well, the headline is certainly misleading. The building is not being “returned” to the local congregation, but taken away from it. The small number of TEC loyalists who will now “own” the building (including the expense of upkeep, one presumes) would only be a small minority of the local congregation.
Over the years of sepration, two distinct congregations have been formed. Many who were disgruntled have joined the Episcopal congregation and this is shown as growth. The TEC congregation has an organist and two priests. I would guess there are 300 members. But it will take more to pay the bills.
It seems certain that the diocese involved will find means to provide whatever financial support it takes to keep this unique, historic property operating as a TEC parish; the opposite appears extremely unlikely. Unfortunately, it appears the present congregation will not be appealing the last unfavorable court decision, because surely their position would only be much weaker after passing the property to the diocese largely thanks to the the extremely broad provisions of the Dennis Canon, enacted not all that long ago, and contrary in spirit to the structure of TEC, which, although hierarchial, is hierarchial based on diocesans and not a structure premised on dioceses being mere subdivisions of a national church Thus congregations such as this should have the right, under civil law relating to trusts, to at least be able to negotiate with a diocese for the purchase of property under these circumstances.
RE No. 2: I think both groups were local, so there certainly is nothing worse than ambiguity in saying that the property was returned to local elements. The more misleading word might be “congregation.” There were two congregations, one composed of people who decided to leave the Episcopal Church but who nonetheless felt entitled to stay in the building that had previously been used for Episcopal worship and one composed of people who decided to stay in the Episcopal Church but who were forced to leave the building that they had used for years in order to continue to worship as part of the Episcopal Diocese.
Re No 4: I doubt that the U.S. Supreme Court would take an appeal of this decision. It seems very much to swing on state law principles. I do think that one or more of these property cases will ultimately reach the Supremes, but it will be one where constitutional principles are square in the middle of the disposition.
The decision was not based solely on the applicability of the Dennis Canon, although that was part of it. The Court instead found that the history of the particular parish showed a long and consistent undertaking to abide by the discipline of the Episcopal Church and that the seceding parishioners couldn’t just undo that history when it suited their purposes to support a claim to property.
If you are right about the primacy of the Diocese in the Episcopalian structure, moreover (and I think I agree with you on that point), this Diocese opposed the alienation of the property, apparently a changeover that the occupying group thought should occur without compensation.
As to your last point, people always have the right to make proposals for the acquisition of property. In this instance, however, the negotiation ambiance was rendered nearly toxic by the unilateral occupation of the church. If this were your property (or property you believed to be yours) would you want to negotiate with folks who occupied a parcel or a building and then said they’d treat with you about a purchase?
No. 5: I tend to think the U.S. Supreme Court might not entertain an appeal of the Christ Church (Savannah) decision (which I’ve not read, but plan to do so), based on the recent apparent waiver by Savannah’s Christ Church Anglican congregation to any right to the property of the church. Its unclear to me what issue(s) the appellants would ask the U.S. Supreme Court to decide and whether there is any pertinent claim because of that apparent waiver.
However, I believe other cases involving TEC would be good candidates for decision by the U.S. Supreme Court based on solid Constitutional issues involving the First and Fifth Amendments to the Constitution, as well as law of a particular state that apply to the creation and administration and disposition of property held in trust. The factual scenarios especially pertinent to several churches would likely be as follows: (a) a particular parish has existed for decades (probably in several cases for a century or longer) and, in some cases, before the existence of its present diocese and/or before the formation of TEC and before the fairly recent enactment of the Dennis Canon, (b) a clear majority of members in good standing in the parish have made it clear through voting that they want the parish to discontinue its affiliation with TEC, and (c) TEC has subsequently sought to apply provisions of the Dennis Canon to the parish and has initiated litigation in which the parish is a party. If a state court decided in favor of TEC in such litigation, the majority of members of the parish in good standing would be deprived of a right to worship in property in which they have been worshiping (as I said, probably for decades in the case of a considerable number of members). Further, as a matter of fact, the Dennis Canon is likely to run counter to several common principles of laws of a number of states with regard to the creation, administration, and disposition of property held in trust. (My point about the right of a parish to negotiation relates to that right EVEN IF a court has decided the Dennis Canon did apply to a parish in the situation I’ve described however, I believe that several aspects of the application of the Dennis Canon are suspect under the law of many states that relate to property held in trust.
While I’m only generally familiar with the specific statute in Virginia referred to as the “Division” statute, a statute concerning the property of local churches, I’m very doubtful that even as applied to a Virginia parish that particular statute would provide an exclusive remedy for local parishes of TEC seeking to retain church property. I have a great deal of difficulty in accepting the fact that a majority of members of a parish in good standing could be compelled by governmental decision (viz., decision of a court of law) to stand to lose the right to worship in property in which they have had the right to worship and have worshiped (as I’ve stated), often for many decades, without even the right to negotiate with the appropriate authority for the right to continue worshiping in that property, as a result of the imposition by the court of a provision of canon law that runs contra to state law relating to property held i trust. Thus, such deprivation, to me, flies in the face of Amendments I and V, and should be enjoined.
An omission: The last line of post no. 6, should–in addition to the references to Amendments I and V of the federal constitution–have also referenced Amendment XIV, pertaining to actions of a state in violation of Amendments I and V.
Nos. 6 an 7:
I would phrase it the other way around – that the departing parishioners didn’t appeal and surrendered the property because they were advised the US Supreme Court would be very unlikely to take their appeal, not, as you posit, that they cannot take the appeal because they surrendered the property. The jig was up. It was great while it lasted. If the Diocese doesn’t pursue back rents (set off, of course, by funds expended by the occupiers for maintenance) they will be getting an enormous windfall.
I don’t see how the First Amendment is implicated. No one is establishing a state religion or interfering with anyone’s beliefs. The Courts simply adjudicated a property dispute. That’s what they do. Similarly, the Fifth Amendment is not implicated. The government is not taking property for public use. This wasn’t like a condemnation for a highway. The courts simply required property to be returned to its owners.
As for the other notions, there is no provision in the governing documents of Christ Church, its Diocese, or the national church whereby an individual or group can take property upon departure from the parish, the Diocese or the national Church. How do you deal with the rights of the minority who chose not to leave? This is true of Georgia, Virginia, or anywhere else. When you decide to leave (and I’ll acknowledge, for purposes of discussion, that you might have the best of reasons) you leave with the expectation that you don’t worship in the same church buildings. You find another church or create another church. I question that there is any such thing as a “right” of a departing individual or group “to worship in a property in which they have been worshipping, even if for decades. And, if you read the Georgia Supreme Court’s decision, you see that it did not turn solely on the Dennis Canon. It relied heavily on the fact that over many decades this particular church had agreed to accept the discipline and doctrine of the Diocese. The Dennis Canon was part of the analysis, but I submit that the result could have been the same even without reference to it.
No. 8: The latest Georgia decision is pretty recent and the statement that there has been a “failure to appeal” that decision to the U.S. Supreme Court on the part of the congregation is a premature statement. Although I’ve read a news item to the effect that there had been no decision to appeal at this time, given the present circumstances surrounding this matter, I’d be surprised to see the Georgia decision appealed.
With regard to the First Amendment, I hope you will concede that no only does this Amendment apply to “establishment” situations, it also protects against governmental action that amounts to contravention of free EXERCISE of religion (as distinguished from your use of the term “belief”), something clearly involved when there is a provision of canon law (the Dennis Canon) that basically supplies a very important rationale for asserting that the current congregation may no longer worship in property it is now using because the property is held in trust for TEC where this canon is probably in contravention of existing law with regard to trusts of property in many, if not most, states, and a canon which may also be subject to the fatality of being not in conformance with TEC’s constitution.
The Fifth Amendment is also implicated in the Georgia decision because the Amendment isn’t limited to taking for public use (e.g., your highway example) but also applies to governmental denial of the due process of the law, something that has occurred because a congregation should be clearly entitled to the opportunity to retain property is occupying where there is no VALID TRUST of the property for another (the situation that arises under the application because of reliance on the putative trust of the Dennis Canon). The reason I say “opportunity” for retention of property is that I do recognize the existence of an implied contractual type of obligation when a parish would disaffiliate from TEC. Obviously, a diocese and TEC itself has undoubtedly received funds from a given parish over many years, and there should be an opportunity for a parish and the diocese and TEC to negotiate for a reasonable compensation upon a parish leaving TEC, and the intrinsic value of the property involved would be a matter included among items to be negotiated. That isn’t to sayt that a parish leaving TEC would be required to “purchase” the buildings it has been using, for example, but to provide reasonable compensation to the diocese from which it would depart and to TEC that takes into account the intrinsic value of those buildings in making such compensation.
I submit that your analysis relies very heavily on protection of a “minority” of a parish in a situation where the “majority” want the parish to disaffiliate from TEC. I disagree that the minority should be the ones retaining the parish property in that situation regardless of the past history of the parish as a parish in a diocese of TEC. After all, history is ongoing and things change, and the reliance of past history would have very little impact in the absence of the Dennis Canon. Thus–and I’m sure you will disagre with this statement, however, I consider it an accurate one: It’s rather superficial to say, as the PB has said, that “individuals may leave TEC but parishes may not” because that is a matter subject to the determination of courts of law in the final analysis. There are indeed valid reasons for a court to find that it is possible for a parish to disaffiliate from TEC, however, obviously, as I’ve stated, there are certainly equitable considerations involved.
If you can point me to the provisions of the by-laws of the parish or the canons of the Diocese or the national Church that specify that, if a majority of eligible parishioners at a given point in time can alienate property to a new denomination, it would help me focus my thinking on this, No. 9. And, as I have said before, anyone can negotiate anything if both parties see it to be in their common interests to agree.
This was the “final analysis” for this situation in Georgia.
No. 10. At this point I’m hoping to son read the Georgia decision (including the dissenting opinion, which I recall reportedly goes into some issues involving property purportedly held in trust). However, I’m also certain no by-laws of a parish or diocesan or TEC canons exist that authorize parochial property to pass to a new denomination, and even an older denomination or even a sister parish of the Anglican church in Canada (i.e., not a parish affiliated with the ACNA but affiliated with the Canadian church in communion with the See of Canterbury). The nonexistence of such bylaws or canons is fine because state and federal law should, and I submit, does provide some help in the circumstances that are the subject of our discussion. I’m definitely not naive enough to overlook the fact that that many courts are somewhat decidedly less than eager to deal with matters affecting religious bodies and thus prefer to avoid the weightier issues involving a religious body (and, thus, a court may indeed overly rely on bylaws and canons, focus on such matters, and thus remain happily distanced from weighter issues). I’m optimistic that in one case or another the U.S. Supreme Court will demonstrate intellectual integrity by not avoiding the weightier issues involving religious bodies in order that the Court may provide clarity and guidance relating to particular issues of law that are important, and–most critically–attempt to accomplish a just result in particular and important situations in which religious bodies may be involved.
I guess I’m very uncomfortable with the idea that the government at state or federal level could impose procedures on religious organizations concerning departing groups’ being able to leave and take property. The approach of government under the Constitution has been to defer to the internal organizational processes of the particular church. In my view, that’s good policy (and the only possible result in a country where religious liberty is guaranteed by the founding documents).
People who re-affiliate were Episcopalians until they decided to leave. They are bound by the internal rules of the Episcopal Church and the relevant diocese until they’ve departed. They are completely free to go. However, they can’t invent a procedure on their way out that is completely extra-canonical to justify their reaching a result that they could not achieve within the Church. That would lead to complete anarchy, with access and ownership shifting wildly over numerous issues. Every parish meeting would look like a political convention.