Boiled down to their essence, the Episcopal Church arguments against this are twofold — and nonsense twice over. First, the Episcopal Church will raise a federal First Amendment (free exercise of religion) issue, saying in effect that the state has no say over the internal laws of an organized Church. Because the organized Church (in other words, the institutional structure, the bureaucracy of the Diocese of Virginia and the U.S. Episcopal Church) has bylaws that claim corporate ownership of all individual churches’ parish property, the state supposedly must uphold those bylaws despite any claims, evidence, or history to the contrary. Second, they will argue that “hierarchical” churches (e.g., Episcopal, Catholic), unlike “congregational” churches (e.g. United Church of Christ), are indivisible without the assent of the whole body (in this case, the diocese) — much the same way that Lincoln argued that the Union was indivisible.
Of course, their arguments fail the smell test, because a civic polity and a religious one are two entirely different things. At issue in the lawsuit are civic property rights, which are always governed by the state, not the spiritual matters that are exclusively (and rightly) the province of churches alone.
Throughout this whole fight, the CANA churches have offered to negotiate a financial settlement, and they have kept their rhetoric low-key and respectful. After last Friday’s ruling, Jim Oakes, vice-chairman of the new Anglican District of Virginia (the group of breakaway churches), struck just the right tone in his statement. “Let us choose healing over litigation,” he said, “and peaceful co-existence over lawsuits, and let us devote all our resources to serving Christ and helping others around the world.”
If only the Episcopal Diocese of Virginia would be so reasonable. The congregations of the CANA parishes built, care for, and worship in their churches. The Episcopal Diocese ought to adhere to the scriptural admonition against coveting those properties the diocese had no part in creating or maintaining. To do otherwise — to continue attempts to confiscate those properties — is to accomplish the exact opposite of social justice.
Wow! What a clear description of what has happened to the church that we love. While the PECUSA (one of the many names for it) has always had an element of social awareness, it has been taken over by those political elements which require that you think “my way or else.” Unfortunately the “Bridge” church is not so much a bridge as a drop into deep water if you dare to disagree! Ah for the days of the high church vs low church. It seems so benign now in retrospect. We may have disagreed how to worship, but we all agreed it was real worship. Thanks for the insights from outside.
I agree. Sometimes outsiders have an easier time seeing the big picture, i.e., they have the distance to see the forest and not just the trees nearby. The decision by Judge Bellows was indeed a victory for justice and common sense. FWIW, I’ve just learned from a friend who is a retired circuit judge in VA that Judge Randy Bellows is Jewish, which probably helps add to the credibility of his decision as someone who has no personal stake in which side wins.
But we are left wondering how long it will take the California Supreme Court (thank God, NOT the ultra-liberal 9th Circuit Court of Appeals) to render their decision on the case of the breakaway churches being sued in the LA area. I suspect that decision will also favor the departing churches. But time will tell.
David Handy+
This is possibly the clearest and most concise summary I’ve read on the situation. Very good post, Kendall.
David+, I think you’re right. Remember, California is a strong “property rights” state, and the general consensus is that “he who holds the deed owns the property.” And my wife and I hold our deed. Therefore, if we were members of a homeowners’ association, and if that association passed a rule which said that they owned all of the members’ homes, would that mean that the association owned their homes? NO! The same applies to TEC.
Thanks, Cennydd (#4). Great analogy with the home owner’s association.
And yes, I think the CA cases will actually be more significant in the long run than the VA cases. The VA Division Statute of 1867 is apparently rather unique. But a positive ruling by the CA Supreme Court could set a much more influential precedent.
David Handy+
David Handy:
If you look the CA supreme court has issued several extensions to those who need to file documents with the case. I think TEC has asked for several extensions already probably due to the fact that the due dates came about the same time they needed to have documents filed in the VA case. Hopefully the CA Supreme court will rule soon.
The law in this area is fairly complex, as [url=http://covenant-communion.com/?p=693]I have discussed elsewhere.[/url]
The analogies to someone who buys a house and then joins a voluntary homeowner’s association are simply not apt. Perhaps a better example would be someone who moved into a highly restricted subdivision with a mandatory-membership HOA that was given the power in the deed restrictions to make amendments that would be binding on all the residents. Somebody who bought a house there should not be surprised when the courts enforce the restrictions despite the owner’s assertion of private property rights.
The same should be true of folks who joined a church that requires its dioceses to make an unconditional accession to a Constitution containing amendment provisions, and its clergy to take an oath to uphold its discipline. Clearly, all the dioceses that were formed under TEC authority after its organization knew what they were getting into. The same, actually, is true of the relatively few parishes that antedate the American Revolution. The myth that the colonial parishes were sovereign entities that voluntarily formed the original dioceses (which then voluntarily formed a national church), is just that… a powerful but misleading myth.
For example, it is simply not the case that the Diocese of Virginia was ever a collection of independent parishes (which in turn were founded and democratically run by those who voluntarily chose to join them), which then joined together to form diocesan and national membership associations that the parishes considered themselves free to leave.
Until the passage of the Virginia Statute for Religious Freedom on January 17, 1786, the (Anglican/Episcopal) Church in Virginia had been the established religion in Virginia. Parishes existing prior to that date (including the Fairfax Parish that originally included both Falls Church and Truro) were not created by their congregations, but by an act of the colonial or state legislature. They were geographic subdivisions like Louisiana parishes today, with civil as well as religious functions, and their “members” included everybody who lived within the geographic unit. The “congregation” was a rather different group of people, just as the congregation of an English cathedral founded before the 19th century are actually members of the parish where they reside.
It is true that Virginia vestries were self-perpetuating bodies that ran parish affairs, held title to the buildings, and so forth, but there was never any question of them somehow taking the parish or its assets outside “the church by law established,” any more than there was a question of their exercising the parish’s civil functions apart from the ultimate control of the Virginia government.
The same system prevailed elsewhere in the Southern Colonies. North Carolina parishes were coterminous with the counties and the vestries were elected by all the county freeholders or taxpayers. South Carolina vestries were elected by everyone “of the episcopal persuasion” living in the parish, but functioned as the basic unit of local government. Georgia vestries were also elected, as they exercised substantial civic responsibilities (in Savannah, they supervised the police).
After the Declaration of Independence, various steps were taken to relieve Virginia Dissenters of their obligation to pay taxes for the support of the Anglican clergy, but final disestablishment did not occur until after passage of the Statute for Religious Freedom; Anglicans enjoyed some degree of special treatment until 1787.
In the meantime, a voluntary meeting of clergy and laity from 6 states (including one from Virginia) met on October 6, 1784, and issued a call for Episcopalians to reorganize their state churches and elect representatives to a national convention. (One of the major driving forces in this was the desire among Anglicans nationally to provide established authorities who could prevent any repetition of the defection of King’s Chapel, Boston, to the Unitarians; parish autonomy was one thing that they specifically did not want.)
In response, the first convention of the “Protestant Episcopal Church in Virginia” met on May 18-25, 1785, in Richmond. They adopted “Rules for the Order, Government, and Discipline” of the church that set out the respective authority to be exercised by the Bishop, Convention, and parish vestries. This first American “Constitution and Canons” provided much of the model for the later national document.
Also prior to passage of the Virginia Statute for Religious Freedom, the first General Convention of the Protestant Episcopal Church in the United States of America had been convened on September 27, 1785. The Rev’d David Griffith of Virginia served as secretary. That convention adopted a proposed General Ecclesiastical Constitution.
This was ratified by the second diocesan convention in Virginia on May 24, 1786. On May 29, Griffith+ was elected Bishop of Virginia (although he was never consecrated). Before the second session of General Convention on June 20, the Diocese had obtained a certificate from the Virginia state government that the election of a bishop was not in conflict with secular law.
So, the first diocesan convention in Virginia (like the first convention in every other one of the 110 TEC dioceses, apart from Maryland, Connecticut, Pennsylvania, and Massachusetts) took place with a view towards forming part of a national church, and was held after the date of the first General Convention had already been set. The Virginia parishes (including Fairfax Parish) transitioned from being dependencies of the Established Church in Virginia to being an integral part of the Episcopal Diocese of Virginia without any substantial time between as autonomous entities. At all times, the vestries exercised their authority under regulations imposed from above by the authorities who had jurisdiction over the colonial or state church.
Another good reason for all congregations to own their own property outright from the very beginning. This is common in the Continuing Anglican churches…….or so I’ve been informed.
Filed April 3 by the California court:
[blockquote] On application of respondents and good cause appearing, it is ordered that the time to serve and file the consolidated reply brief on the merits is extended to and including April 18, 2008. [/blockquote] Seminarian, it appears that the extensions are getting shorter and shorter.
Movement can be expected soon.
[size=1][color=red][url=http://resurrectioncommunitypersonal.blogspot.com/]The Rabbit[/url][/color][color=gray].[/color][/size]
Our Colonial Revolutionary Fathers understood the problem well. Here is my favorite clause from Thomas Jefferson’s draft of the famous statute, The Virginia Act For Establishing Religious Freedom (emphasis added):
“…that the impious presumption of legislators and rulers, civil as well as ecclesiastical , who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…”
Here is the whole draft: http://religiousfreedom.lib.virginia.edu/sacred/vaact.html
Seminarian (#6) and Br_er Rabbit (#9),
Thanks for bringing me and the rest of us up to date. Great legal spadework coming from the Rabbit Patch. Way to go, Rolin! At least we shouldn’t have to wait much longer to get the final ruling in CA. And that could be HUGE. If the ruling favors the departing parishes, it could help open the floodgates for other churches to leave TEC.
David Handy+
Uhhh, excuse me, Dale Rye: I serve on the Bishop’s Committee, and we function under NO regulations handed down from above. We use Roberts’ Rules of Order.
An excellent summary of the situation in Virginia. The author’s description of TEC’s website is devastatingly accurate as is the question of why win people to Christ when Ceasar apparently needs so much help.
However this quote:
[blockquote]These churches (and others) helped create the diocese, not vice versa. And, to the tune of many, many millions of dollars, these churches have supported the diocese financially, not taken from the diocese.[/blockquote]
might be the highlight of the whole article. How ironic given the diocesan and 815 arguments that dioceses create parishes, not the other way around. Should the ADV churches now sue the diocese and 815 to get their money back with interest from the past 200+ years?
You’d think with a parent named Caesore I’d know how to spell Caesar…alas
Dale,
While the argument you lay out for is a good argument, you forget the Division Statute that was passed in Virginia in 1876. Becuase of divisions in multiple denominations the state legislature wanted to enact a neutral principle of law to help with the disputes that were certain to arise from the dispute and the divisions. Therefore the division statute that the judge indicated applies.
Dale Rye – many thanks for your thoughtful post.
Cennydd’s HOA analogy is a good one, Dale’s counter-argument is flawed, at least in California. TX law may be different.
In CA HOAs are governed by a combination of contract (CC&Rs;, by-laws, etc.) and statutes (plus case law). Membership in the HOA is automatic and mandatory upon purchase.
The actions allowed by the board of directors or by a vote of the whole membership are described and limited by the appropriate authority. But – and this is the part of the analogy that applies most directly to TEC – if the B/D or owners wished to do something affecting title and took appropriate action as allowed, the action would still not be effective until they completed the action by doing what’s required by the county recorder (e.g. record the deed, lot line adjustment, easement, etc.) Until that final action, the matter remains incomplete.
TEC’s problem is that it never “perfected” all the alleged trusts. TEC should have required implementing action after the Dennis Canon was passed(?). Each diocese could have required each parish to comply, taking appropriate action for failure. But TEC never did that.
TEC is very much in the same position as all the people who go to “trust mills”, get generic trusts, but then never complete the actual transfers of assets into trust. Upon death, the heirs sadly discover the estate still has to go through probate.
Both church case precedent and trust law favor the CA churches, not TEC. For all of TEC’s claims of being a hierarchical church, it would be difficlut answer a judge who asks, “If you are a hierarchical church, why doesn’t the diocese or national church hold title, directly or in trust?” As others have noted, TEC keeps trying to have it both ways.
Re #17: Before some courts in California adopted the “neutral principles” rule, local churches in a hierarchical denomination were obliged to follow the rules adopted by the higher judicatories in their denomination and the courts were required to defer to them as well. There was therefore no reason for the diocese to hold title directly or for the title documents to expressly set out the fiduciary relationship between the legal titleholder of church property and the beneficial owner (generally the parish, but only insofar as it remained under the oversight of the denomination and followed the doctrine, discipline, and worship required by its higher judicatories).
The documents therefore very rarely did set out this relationship, beyond saying that the property was to be held for the benefit of St. X Episcopal Church. Under the prior rule, the diocese and denomination got to determine who was lawfully St. X, not the courts or the majority of those who voted at a parish meeting.
After California adopted the new rule, the identity of St. X was left up to the person holding legal title. TEC and other denominations tried to restore the former relationship between parish, diocese, and denomination by making that relationship explicit (the Methodists had always made it explicit, but the courts refused to enforce their policies, either).
However, there was no way for the higher judicatories to “require each parish to comply,” since the parishes were now the absolute legal and beneficial owners of the property without any duty to obey anybody else. The diocese’s beneficial interest in having their constituent parishes use the property in accordance with denominational directives had simply been extinguished by state action (taken without compensation, one might say).
Dale’s posts contain a mixture of valuable factual information (especially #4) and arguable opinions (especially #18). Some of what he has to say may well hint at the arguments from TEC and DioL.A. that are about to be presented to the California Supreme Court a week from today. It will be most interesting to read the Payne & Fears presentation of the countervailing facts along with their rebuttals to such opinions. To date, their presentations to the CA courts have been devastating for the other side, inflicting pain in Los Angeles and fear on 815 2nd St.
[size=1][color=red][url=http://resurrectioncommunitypersonal.blogspot.com/]The Rabbit[/url][/color][color=gray].[/color][/size]
“Who has time to save souls when Caesar needs so much guidance?”
—Quin Hillyer
A phrase worth remembering.
#18 you said:
“However, there was no way for the higher judicatories to “require each parish to comply,†since the parishes were now the absolute legal and beneficial owners of the property without any duty to obey anybody else.”
This makes no sense. The Episcopal church is a hierarchical church, is it not? Could it not pass a canon an require priests and vestries to change the title or be deposed? Could not a bishop require it and depose a priest who did not do so? Of course they could. But they did not. I don’t think until recently they even wanted to, for a lot of reasons, not least that there are many properties and their mortgages that a diocese does not want to be responsible for. And so here we are.
Also, thanks for your information on Virginia history, but I think it misses the constitutional issue. To use your example, the problem is that the HOA never filed the restriction with the recorder of deeds. A HOA in that event would probably be out of luck in enforcing it. But here, the HOA is a church. Should the state give them a pass on recording it because it is a church (opening the question of whether that is a prohibited establishment) or require them to follow the same law as everyone else as to recording things in public records (opening the question of whether that interferes with the free exercise of their religion). That is the constitutional question.
Exactly right #21. A hierarchical church has the mechanisms to force compliance with the law. Failure to do so is not an excuse to overturn hundreds of years of trust law.
[blockquote] Could it not pass a canon an require priests and vestries to change the title or be deposed? Could not a bishop require it and depose a priest who did not do so? [/blockquote] At the diocese level, this is exactly what +Mathes is trying to do in San Diego. He has demanded that all the vestries change the title on their deeds to show an accession to the Diocese. Non-compliant rectors can expect to be inhibited. This action is directly responsible (I believe) for the loss of some of his parishes.
[size=1][color=red][url=http://resurrectioncommunitypersonal.blogspot.com/]The Rabbit[/url][/color][color=gray].[/color][/size]
As far as I can discern, the Virginia statute is unique and reflects the political and cultural divisions of its time (1867). If it indeed controls disposition of the properties of parishes whose majorities voted to depart the Diocese, one does have to ask, as the Judge has, why, under either the state or federal Constitution, should the state legislature control dispositions of property that are not consistent with the internal polity of the Church. This point is particularly acute if the Church structure for determining property rights has some theological grounding. The statute appears to have been passed at the urging of the Speaker of the House of Delegates, a Civil War veteran and attorney who represented one or more seceding congregations in the Commonwealth at a time when North/South splits were common. Virginia legislative politics in modern times is not free of legislators pushing through measures for their own benefit, I can imagine that this was not less of a problem in the Civil War period.
I am no fan of the national Church as presently led, but think it a matter of great concern to have the State controlling this kind of thing. The statute is not universal in its application, but seems to address only certain types of property owership. I’m also not too crazy about the idea that I or others could drum up a majority vote and march away with a multi-million dollar property virtually at will. The important principles at stake here for the departing congregants and the Nigerian and Ugandan churches could have been made far more compellingly if their decision to leave had not involved taking the property with them.
It was said, “The important principles at stake here for the departing congregants and the Nigerian and Ugandan churches could have been made far more compellingly if their decision to leave had not involved taking the property with them.”
At the time they left, there was an agreement with the bishop, called the Protocol for Departing Congregations, under which there was to be a negotiated settlement of the property and no litigation. One prominent congregation (All Saints) had already left under a property settlement. There was even one meeting of the committee after the votes. So I think that puts the parishes’ actions in a different light.
It was also said, “If it indeed controls disposition of the properties of parishes whose majorities voted to depart the Diocese, one does have to ask, as the Judge has, why, under either the state or federal Constitution, should the state legislature control dispositions of property that are not consistent with the internal polity of the Church.”
Yes, he does have to ask that. I’m sure that the Fundamentalist Latter Day Saints down in Eldorado, Texas, are asking similar questions of judges regarding the state intruding on their religious beliefs.
Keep in mind, that even if the statute were not applicable (first decision on that to CANA) or not constititutional (next to be decided), that still does not answer the question of who owns the property. The Diocese and TEC still have to argue that the canon law property trusts are valid under Virginia law in order to trump the titleholder. I think this will go on for years. Particularly since only the CANA side has been willing to settle since the bishop reneged.
PenDennis: there was no agreement with the Diocese at the time of the departure vote. There had been discussions about how the diocese and the parishes would manage this, but the direction of those negotations ulimately did not have the support of the diocese. All Saints was a one-off that reflected peculiarities of that church’s history and development. The Falls Church and Truro were particularly unlikely to escape dispute, given their size and history.
I’m not at all sure I follow the connection between the Texas polygamy/child abuse situation and the issues at the Virginia parishes. I am unaware of any crimes having been committed or alleged at the Episcopal parishes. You do not challenge, and I continue to maintain, that the principles at issues between the Nigerian Church and the diocese would have been more compellingly advanced had the departing congregations not attempted to retain the property. The numbers and resources of those who elected to leave were sufficient to have quickly established a viable parish without the dispute over “departure in place.”
Just discussions? There was a written protocol for departure. It was agreed to by the bishop. See the story and links here: http://babybluecafe.blogspot.com/2007/11/diocese-of-virginia-big-time-oops.html
You can argue that the protocol was revocable. You could argue that it needed standing committee approval, though that does not appear to be true under the canons. It certainly was reneged on by the bishop. And it was received or accepted (it is unclear) by the Standing Committee, a process that seems to have been confused as to the meaning of the Standing Committee’s vote at the time, but in any event, and as the decision found to be fact, the bishop told the parishes to proceed. And yet a second committee appointed by the diocese met with the CANA churches to negotiate the property settlement at least once. And, as is often forgotten, the bishop agreed with the parishes that their votes should be filed with the court.
That All Saints was one-off turned out to be true, but only subsequently. Certainly the departing congregations knew the diocese might change its mind at some point, and cease negotiating. And they did. After they had left. But even the judge’s decision reflects that the diocese did not do so till after the national church intervened.
So no, I don’t think that adds up to just a discussion. I think your argument is just spinning to try to make simple buyer’s remorse and reneging on an agreement to settle look less hard-hearted than it is.
Further, if you don’t see the constitutional implications of how broadly to defer to internal church polity and theology when applying any different particular state laws, then I’m sure I can’t make it clearer. It is facile, though, to say simply that this is one law and that is another. I do think that judges worry about these broader implications of the decisions they make all of the time.
What would have advanced the principles at issue in the departure better had the facts been entirely different in many important respects? You are right, I don’t know. The facts were what they were.