(Via Email) FAIRFAX, Va. (July 10, 2010) ”“ The nine Anglican District of Virginia (ADV) congregations that are parties to the church property case brought by The Episcopal Church and the Episcopal Diocese of Virginia today asked the Virginia Supreme Court to reconsider a narrow, but critical portion of its ruling. Specifically, the churches asked the Court to reconsider whether CANA and ADV are branches of The Episcopal Church and Episcopal Diocese of Virginia under the governing statute.
“Today we filed a motion asking the Virginia Supreme Court to rehear a portion of its June 10 ruling that addressed whether CANA and ADV are in fact branches that divided from The Episcopal Church and Diocese of Virginia,” said ADV Chairman Jim Oakes. “We are not challenging the Court’s legal interpretation of the relevant statute, but we are pointing out that the Court overlooked critical evidence showing that, even under that interpretation, the congregations have satisfied the statute.”
“CANA and ADV came about as a direct result of the division within the Church. In fact, ADV in particular was established because of the desire of the orthodox Virginia churches to stick together. It has become a diverse group of churches all working together for the Gospel. Even when ADV was formed, it was not limited to churches that were affiliated with the Convocation of Anglicans in North America and also included congregations that had established a connection with the Church of Uganda,” Oakes said.
“We recognize that motions to rehear a case are not automatically granted, but we feel we have a strong case and that based on key evidence that the Court overlooked, CANA and ADV satisfy the ”˜branch’ requirements of the Virginia Division Statute. We never sought these legal proceedings in the first place and look forward to the day when we can completely focus on our core mission of spreading the Good News of Christ. Ultimately, this court case is in the Lord’s hands and we will continue to welcome all who wish to worship with us regardless of the outcome,” Oakes concluded.
“We recognize that motions to rehear a case are not automatically granted”
Try almost never. In 2007, the Court decided 358 petitions for rehearing and granted 13. In 2008, it decided 367 petitions for rehearing and granted 23.
I’m not so sure I believe the phrase that they are a “diverse group of churches.” Aren’t they of one mind on most things? Also, how many minority members do they claim to have? I know – off topic, but I can’t help but laugh at that statement.
Fr. Handy, you are right, of course. I suspect this is just another of the many random procedural push-ups that must be offered to the esteemed Third Branch demi-gods to feed the their must-needs to avoid some future pitfall.
“[W]hether CANA and ADV are branches of The Episcopal Church and Episcopal Diocese of Virginia under the governing statute.”
Um. No.
RE: “Aren’t they of one mind on most things?”
Of course . . . because everybody knows that “diverse” means automatically “not of one mind about the Gospel.” [roll eyes] As if there are not scads of ways of being diverse other than a group holding antithetical visions of group mission, vision, and values. The whole point about “diversity” in a group is that while the group is pulling towards a common goal, the individuals in the group may be “diverse” in many various aspects and facets, whether socioeconomic, personality, skills and gifts, iq, education, color of hair, race, interests and hobbies, political party, cultural background, and on and on and on and on.
Even more richly ironic, of course, is that KJS continually claims “diversity” when the vast majority of her allies and peers are also “of one mind” about their gospel.
How do we measure who is an “ally” or “peer” of KJS? I have no idea. But my guess is as good as Sarah’s and my reckoning is that there is a wide spectrum of membership composition and opinion on the issues of the day within the Episcopal Church.
ADV is a branch of TEC in the sense that it developed from TEC
Too bad the Supreme Court of Virginia hasn’t agreed with you, Glendermott. But go ahead and hope for this rehearing “Hail Mary” to work.
RE: “How do we measure who is an “ally†or “peer†of KJS?”
Pretty easily — simply look at who voted in favor of D025 and C056. End of “measure”.
RE: “But my guess is as good as Sarah’s . . . ”
Actually, it is. You’re well aware of who the allies and peers of KJS are.
RE: ” . . . there is a wide spectrum of membership composition and opinion on the issues of the day within the Episcopal Church.”
Oh indeed yes — which would be why I made sure to say “ally and peer,” you know. And so, to repeat, it is richly ironic that, while Mark Johnson is busy implying that in order to have “diversity” one must not have a group where the people are “of one mind” about central tenets of the gospel — when over in TECUSA, KJS trumpets “diversity” while in reality meaning “we’re of one mind but we have lots of gays and lesbians.” Just rich. Another example of the ever-changing definitions of the revisionist activists in TEC.
Further, I wouldn’t characterize it as a hail Mary pass — which generally occurs as time is running out at the end of a game. As DavidH is well aware, this is merely one of the many options. I take it as an encouraging sign that the ADV is willing and committed to following every legal trail over the coming months.
Sarah, is time running out on this litigation overall? Clearly not. But with respect to the CANA folks’ best hope (the division statute), there are 2 seconds on the clock, they’re behind, and there’s at least 50 yards to the end zone.
DavidH, 2 seconds on the clock? More like two to five years. Three years ago, I went down to the courthouse and read the deed for the property in Heathsville. It gives the majority congregation reasonable expectations for retaining the property, if decided on neutral principles of real estate law.
[url=http://new.kendallharmon.net/wp-content/uploads/index.php/t19/article/31018/#419650]DavidH[/url], I agree that Glendermott’s assertion is inconsistent with the Supreme Court of Virginia’s opinion. But I do see people saying that the Court accepted TEC’s “branch” argument 100%, and that’s not how I read the opinion.
TEC had argued that for the division statute to apply, a departing parish must still maintain some sort of institutional connection to TEC–that an organization isn’t a “branch” of the church for the purporses of the statute unless it’s still part of the church. (The illustration here is a tree, which has many branches that are all still part of a tree.)
I think the Court’s reading was that you can have “branches” that originated from the original church but no longer maintain any formal affiliation with it. (The illustration here is a river delta, the streams of which were all part of the same river at some point in the past, but since then have diverged.) Otherwise, the division statute wouldn’t make sense, because there wouldn’t be a division.
What was rejected by the Court is the argument that CANA is a “branch” in the second sense–they held that because CANA preexisted the division (as an umbrella organization for ethnic Nigerian Anglicans in the U.S.), CANA wasn’t a branch of (read: [i]from[/i]) TEC. To use the river analogy (which, again, I think the Court accepted but found didn’t apply to CANA), the Court held that joining CANA wasn’t joining a branch because it was like hopping to an entirely different river.
That’s what the parishes are arguing against in this petition, as I understand it.
CANA is a branch of TEC in the same way that a getaway car is a branch of the bank.
Now, now, now, Reid. That was not the kindest image to draw of us CANA people. Are the majority really trying to steal their own buildings? We must wait for the courts to rule on who is in the driver’s seat of the getaway car. TEC may be the ultimate bandit, gaining all the buildings and losing most of the people.
CanaAnglican, I don’t think Reid has any clue as to what the court decision or the law means when it uses the word “branch” and thus he speaks in complete ignorance, albeit accompanied by the usual spite and bile of revisionist activists in TEC. No big deal — just pointing out that he doesn’t have a clue as to what “branch” means in the legal context.
RE: “But with respect to the CANA folks’ best hope (the division statute) . . . ”
Nah — not their “best hope” at all. I’m just impressed with their commitment to running down every legal trail and eliminating the options, methodically and with care and discipline.
It’s methodical, and it will go on for quite some time, and no, it’s not any sort of “hail mary pass” as any lawyer easily recognizes but one on this thread chooses to promote publicly, anyway. ; > )
CanaAnglican, 11, your apparent inability to read the first 11 words of the comment you’re responding to would cast considerable doubt on your claim of knowledge from reading the deed in the bowels of the Heathsville courthouse, even if it weren’t possible to drag the deed’s language out into the light. (BTW, you do know that the courthouse doesn’t have bowels and I’m not actually dragging a deed into the light, right? Just checking after that seconds on the clock thing.)
Fortunately, the original Heathsville deed from the 1870s was argued and transcribed in briefing a couple years ago. (Available from the Diocese website.) So go ahead and tell us, what part of:
gives the majority faction that has severed all ties with the Episcopal Church, entirely not in accordance with the canons of said church, “reasonable expectations for retaining the property, if decided on neutral principles of real estate law.”
Sarah, 15, one of the things I like about you is your confidence. You’re clearly having fun, and I say good for you. Is there any attempt to use facts or logic in your comment on rehearing and a “hail mary pass”? Nope. But you do it with relish, and I like that.
DavidH,16, two words, among others, found in the deed will be troublesome for the TEC in court. You will find them in the seventh line (words 12 and 13) of the portion of the deed you have quoted. They are “or congregation”. The court may take up details such as the word “church” following these two critical words being given in lower case, to parallel “congregation”.
If the court grants the property ownership based on neutral principles of real estate law without entering “the thicket” of church doctrine or polity, it could decide the property stays with the trustees of the congregation, appreciating that they are the best party to assure its proper use for the congregation as a house of Christian worship. Trustee decisions have some weight of standing in Virginia. The court may decide to not overturn this one.
The real question may be which congregation the court accepts. St. Stephens Episcopal church in Heathsville has never ceased to exist despite being barred (literally,i.e., locks were changed and guards posted) from using its church building. It met at the nearby Methodist church for some time and now meets in the rented home of a former parishoner that has been converted to a chapel. It is a vibrant. diverse group, active in the community. Most of its members have been with the church for a long time, have relatives bured in the churchyard and have contributed time and money to the church for many years.
#18. Eugen,
I think you have hit the nail on the head — and no one knows who the court will accept. Over the next few years we will find out and there is certainly a real possibility that we Anglicans will have to move out. One key point is that all the trustees (in whose name the deed rests) stayed with the Anglican majority of 75%. We feel that should give the court some direction.
I would like to clarify one point. Locks were changed and initially locked, but a plea was made to the minority to worship with us all the time or any time. After it was clear the Connecticut procedure of stealing the computers away in the night would not be invoked, the door to the church was unlocked. The church is open at all times for passerbys to stop and worship. The Episcopal congregation has been offered the church for special services they may have such as weddings and funerals.
The Anglican congregation does not consist of criminals who have set out to plunder, rob, and steal. It is a Christian community with serious Bible study and major outreach programs. It ministers to the poor, the hungry, the sick, and those in jail. It reaches out to the neighborhood and to the world. Two years ago it sent 23 missionaries to 9 countries and this year it will send out several teams. One team leaves for Uganda in two weeks and asks for all our prayers in light of Kampala. We support full time workers in Niger. We give scholarships to more than 20 students at a Christian school in the Dominican Republic. We do not need the property we are in for our own pleasure. Serious Kingdom work is being done here.
We miss the minority group and wish they would come back. The people of both congregations are important to the community and could do even more if they would rejoin the congregations.
First, let me clarify that I am not a member of St. Stephens Episcopal church but I do reside in Northumberland county. I think I speak for a number of non-Episcopalian/Anglican people in this area when I say that we are puzzled and disappointed by your group’s behavior in this matter. While we can certainly understand your decision to leave the Episcopal church, we are puzzled as to why you did not leave the church property and found your own church in another building. We are disappointed that your action and the manner in which it was conducted has caused resentment and bitterness on both sides. This has adversely affected the whole community, not just the Episcopalians and Anglicans. You disussed at some length your group’s charitable work. That work is commendable but think how much more could have been done if you were already in your own building and did not need to concern yourselves with the ongoing legal battle and the associated costs. The money spent on legal fees could have built several churches. I’m sure you realize that we live in one of the poorest counties in Virginia where a staggering number of residents go without safe drinking water and indoor plumbing. The money should go toward helping these people and not lining the pockets of the lawyers. Regardless of who ultimately wins the legal battle, the loser has been our community.
Eugen,
I am sorry that the Anglican Church position is not better known within the community. Perhaps we have been too meek in stating it. We feel it is actually the DioVA and TEC who have left the faith that this church was built to live and defend. Now it is incumbent on us to defend it to the end. We truly believe that TEC has lost its way in post-Christian practices.
Please do not over estimate the money we have used for legal fees. I doubt the total is 10% the amount that would be needed to replace the property. Our costs are low because we are so small and are “riding the coattails” of the larger churches. Instead we have put money into the mission of the church. I did not say much about help we have given to the community. There has been plenty of that, because it is indeed a poor community. We have been helping with water and winter fuel bill issues, the redevelopment of the Light Street community, tutoring in the schools, and presenting the gospel in the local jails. We partner with the local black churches. If you have not already done it, talk with some of their pastors to get their view of the situation.
If the courts take the property away from the trustees, who hold the deed, we will indeed worship in and work from a different location. If we were to have to build up a new property it would be a financial setback to missions both local and overseas.
Another point that would be helpful for the Northumberland community to be aware of is the majority congregation had agreed in 2007 with the Bishop of DioVA, +Peter Lee, to “buy” from the diocese the property it already owned. We thought this was walking the second mile to be accommodating. TEC then threw the arrangement out the window and sued us. It was tough for us that TEC sued us after we had already worked out a peaceable solution, it was tougher that +Peter Lee joined the suit. Finally it was even a worse blow when, with absolutely no need or advantage in it, more than a half dozen members of the minority congregation added their names to the suit. I think those people are the focus of whatever bitterness remains in the community. I would ask them to remove their names from the suit.
Eugen (and others), don’t miss the fact that CanaAnglican’s points are more fantasy than fact. There was no agreement, as even the Congregations’ own witnesses admitted at trial. They hoped, and they now present their hopes to the world as though they were facts.
And at the risk of dredging up a tired fact, it should be noted that the CANA folks filed the first batch of lawsuits. (I don’t particularly care about who filed first because my point of view is that it takes two to tango, in court or on a dance floor. But given that many of the CANA folks seem to place a great deal of emphasis on their tale of defending themselves, it’s worth keeping the actual filing facts straight.)
Finally, I certainly agree that it’d be nice if there were no lawsuits. I endorse groups choosing to spend time and treasure on things other than lawyers and either settling or walking away. But if there’s going to be a lawsuit, the continuing Episcopal congregation, as the entity that will ultimately use the buildings should the Diocese and TEC prevail, has every right to be represented.
I continue to look in vain for the principle that supports the idea that people who leave a church (and I do not question in the slightest their right to leave) get to keep it when they depart. The point causes so much strife among Christians, particularly in the recent context of American Anglican schism, but seems to have no underlying foundation other than that you get to keep the church and its contents when you leave if your doctrine is correct. That principle just doesn’t work on any level. I’ve left several churches with absolute confidence in the correctness of my doctrine and theology (although my leaving is usually a matter of geographic convenience following a move) and never once did it occur to me that I had the right to claim the building or any part of it. As someone said above, the money that has been poured into lawyers’ coffers could have built some wonderful new churches to house those who left the Episcopal Church.
Gosh, NoVA Scout, I’m not sure where you’ve been looking, but maybe I can help point you in the right direction.
If you’re looking for a legal principle and since your handle suggests you’re a Virginia resident, I’d direct you to that embodied by Virginia Code sections 57-7.1, 57-8, and others, that talk about local church property being owned by the trustees of congregations. Other sections, such as 57-16 (property held by ecclesiastical officers) and 57-16.1 (property held by religious corporation) talk about church property being owned by denominational entities rather than local congregations or their trustees.
Absent the Dennis Canon or some similar provision (which, as you know, many religious organizations don’t have, and the validity and effect of which, as you also know, is hotly debated), it’s pretty clear that if you fall under the former set of statutes, those who leave a church (by which I assume you mean a denomination) take the property with them, while if you fall under the latter, those who leave don’t.
If by “leave a church†you mean “to split from a local congregation,†then I’d point you to 57-9(B), which establishes the principle of majority control of property when an independent congregation experiences a split. Of course, 57-9(A) addresses splits in denominations with a hierarchical structure, and is at issue in the pending case, but that has to do more with whole congregations (or yes, a majority of a whole congregation) leaving the larger church, which goes to the previous paragraphs unless there’s a “division†and the congregation joins a “branch,†with both terms as defined by the Supreme Court of Virginia in its recent opinion.
If you’re looking for a religious principle, I don’t think you’ll find much if you limit your search to the official pronouncements of TEC, the PC(USA), and other similar bodies concerning property issues. Admittedly, they pretty much confine their remarks to the validity of the Dennis Canon and its counterparts in the constitutions of other denominations.
If you cast the net a bit wider, though, I think you’ll find examples on both sides of the line that would support congregational control of property when the congregation is the record owner. For example, in Baptist and other congregationalist churches, property is titled in the name of local churches. If a local church decides to split from the Baptists, it takes its property with it, and there’s no drama.
The flipside is also true. In the Roman Catholic Church (for example), the property is titled in the name of the archbishop or the archdiocese (depending on where you are). If a local parish decides to split from the Church, it doesn’t take its property with it, and there’s no drama.
Those are both religious entities that would recognize the principle you’ve been searching for. Of course, there are active disputes in some Christian bodies that blend these two scenarios (typically by titling property in the name of local churches but then putting a “trust clause†in favor of the denomination in the constitution of the national church), as to whether they fall into the “Baptist-esque†or “Roman Catholic-esque†categories. Both theologians and civil courts have come down on both sides of that one, so the principle you’re searching for is definitely out there.
As for your statement that [blockquote] the money that has been poured into lawyers’ coffers could have built some wonderful new churches to house those who left the Episcopal Church[/blockquote]the figures I’ve seen for (to take one example) the value of the Truro Church property are at least five times the amount spent on litigation by all of the CANA congregations to date. So you might be right about hypothetical new facilities built with money spent on lawsuits being “wonderful,†but I don’t think it’s possible to argue they’d be equivalent to the current facilities, or adequate to meet the needs of those congregations.
Jeff in VA, if you’re going to suggest “legal principles”, it would help if the principles you describe had any actual basis in law. Your two paragraph summary of Virginia law is wildly inaccurate. As the CANA folks are in the process of finding out, merely having trustees from the congregation hold legal title does not resolve a property dispute with the denomination.
Those who want to read about what the law in Virginia actually is can consult Green v. Lewis, 272 S.E.2d 181 (1980), and its predecessor Norfolk Presbytery v. Bollinger, 201 S.E.2d 752 (1974). Those cases are binding on Virginia courts looking to resolve property disputes and were cited in last month’s Supreme Court of Virginia opinion as governing the CANA cases when they go back to circuit court. Note that the denomination won both of the above cases.
Note also that the only reported Episcopal property dispute in Virginia (prior to the current one) was the Episcopal Diocese of Southwestern Virginia v. Buhrman, 5 Va. Cir. 497 (1977) (unfortunately not on Google). It was decided by a future justice of the Supreme Court of Virginia (still a senior justice today) two years before the Dennis Canon was passed, and the Diocese won.
Actually , Jeff, I wasn’t looking for a legal principle as much as an ethical principle that would apply across all these disputes, nationwide. I haven’t uncovered anything that seems morally coherent that would justify the idea that certain people can leave and grab all the property, real and personal. Addressing your point about the trustees, in my church, two of the three trustees stayed with the church, and one departed. Are you saying that the trustees control the disposition of the property? That seems a difficult principle to make universal. They hold the property in trust for someone, don’t they?
I’ve never attended a church where people who leave get to take stuff. It is an utterly radical notion to me. You seem to think it quite normal. What if the people who leave take everything (including the building) ? What do the people who stay get to keep? I guess nothing, by your principles. Sorry, that doesn’t hold together very well for me, and I would be concerned for the ethical compass of anyone who says that’s just fine and dandy.
I asked for a principle, and you cited a peculiar statute. In Virginia, the statute is an artifact of the Late Unpleasantness with the North. I suspect it is unconstitutional, and I’m confident that no legislature would ever enact such a thing today (even as goofy as state legislatures can sometimes be). Of course, we now know that 57-9 is not applicable to the current situation. So we don’t reach the constitutional side of it.
You’re probably right that Truro is worth more than attorneys’ fees to date. I’m not sure that that will always be the case. But it sounds like you’re saying that if someone has something that is worth a whole lot, it’s OK to take it, because it would cost more to build the same thing for oneself. Please stay away from my house. I’m sure it would be adequate to your needs, but would cost more for you to replicate than the attorneys’ fees if you and some of your friends kicked me out and held on to the property for a few years while we litigated.
I don’t know whether anyone but the three of us is still watching this aging post, but I’m game to continue. I’ll start with NoVA Scout, since that was the comment I was originally responding to.
Scout, I hope you realize that assuming an ethical principle is needed to address these disputes begs the question, by assuming that TEC has an ownership interest in the property. (Actually, we’ve [url=http://babybluecafe.blogspot.com/2010/02/there-must-be-another-way-than-this.html?showComment=1265226275822#c519071722462362163]been over this before[/url], [url=http://babybluecafe.blogspot.com/2010/02/there-must-be-another-way-than-this.html?showComment=1265290174348#c9093766300651810638]it seems[/url] [url=http://babybluecafe.blogspot.com/2010/02/there-must-be-another-way-than-this.html?showComment=1265310393922#c434082203562981758]Several times, in fact[/url].) Please do correct me if I’m wrong, but I think we’d all agree that in a Baptist or other congregationalist-type church, the larger denomination doesn’t have any claim to the real or personal property of local congregations. Consequently, if a local Baptist church decided to end its affiliation with the Baptists, I don’t think anyone would object to the local church keeping its property. (Again, correct me if I’m wrong.) You say you’ve never attended a church where people who leave get to keep stuff—I would venture a guess that you’ve never attended a Baptist church (or one with a similar ecclesiological structure), then. Fair enough.
The parishes that have departed TEC believe this is the state of affairs in TEC, notwithstanding the Dennis Canon, etc. My point is that no ethical justification for keeping the property is required unless ownership by the general church is acknowledged. As we know, it’s disputed by the departing parishes (and I know you and DavidH both disagree with that). Unless you disagree with my characterization of how property issues are handled in congregationalist denominations, I’ll thank you not to impugn my ethical compass. We just disagree about who actually owns the property in TEC, and that’s a disagreement of fact, not of ethics. If I agreed with you on the ownership question, I’d be with you on the questionable ethics of what would then be “stealing†property.
Re: the cost of new property, you said: [blockquote] [I]t sounds like you’re saying that if someone has something that is worth a whole lot, it’s OK to take it, because it would cost more to build the same thing for oneself.[/blockquote] Not at all. To use your construction, what I said was that if you believe you own something that’s worth a whole lot but someone else thinks they own it too, it [b]may[/b] be a stewardly course of action to pay to litigate the matter rather than surrendering and having to start from scratch.
DavidH, it may be obvious by this point, but I wish you would do me the courtesy of actually reading my comment. If the error was my failure to communicate clearly, I apologize. I was not claiming to summarize Virginia law governing the ongoing dispute between the Episcopal Diocese and TEC on one hand and the departed parishes on the other. I agree that, as things now stand, that dispute is governed by the cases you cited.
I was responding to NoVA Scout’s comment by talking about how Virginia law handles [b]other[/b] religious entities and how they hold property, to illustrate my assertion that in the case of other kinds of religious entities, the principle that NoVA Scout has been “looking in vain†for and “doesn’t work on any level†is in fact pretty common in other kinds of religious entities. The statutes I cited, even the other part of 57-9, explicitly don’t apply to churches that are part of a hierarchy. The point I was making was that there is a legal principle that establishes the right of a local congregation to do pretty much whatever it wants with its property, [b]when its ownership of the property is completely undisputed and established as a matter of law[/b]—which is emphatically not the case with the current dispute.
Again, the disagreement is over who owns the property in the first place. If you start, as I assume you and NoVA Scout do, with the assumption that the Dennis Canon completely and finally decides that question for TEC, PC(USA), and similar churches, always in favor of the national church, then your objections make perfect sense. You may think that I and those who constitute the parishes (and I’m not currently among their number, though I have been previously) are wrong on the law, but if we’re not (a possibility you may be entirely unwilling to consider), then we’re not wrong on the ethics either.
(re-subscribing, because I inadvertently hit the “unsubscribe” link.)
Jeff, stop digging.
Contrary to your original post’s claim to describe principles of Virginia law, you now say that you were actually describing principles applicable to situations where the law is essentially irrelevant — i.e. when “ownership of the property is completely undisputed and established as a matter of law.” The fact is that your original words are in black and white and wrong all over, and it actually reading the comment that readily reveals this.
And you now add another clear error in claiming that “The statutes I cited, even the other part of 57-9, explicitly don’t apply to churches that are part of a hierarchy.” That’s not true about ANY of the statutes you cited — 57-7.1, 57.8, 57-16, or 57-16.1 — much less all of them. In fact, as is almost always true in that part of the Virginia Code, those four statutes either contain language specifically applicable to hierarchical churches or broad language undoubtedly intended to be applicable to all churches.
I’m talking more broadly than the current litigation between the Virginia diocese and TEC and the CANA folks, just as you were/are. And if you had actually read my previous comment, you would know that I start with existing law, not the Dennis Canon.
DavidH, it’s obvious you’ve misunderstood me, and at this point I can only conclude that it’s deliberate as you seek to grind your axe. I hope I was clear enough for NoVA Scout (and anyone else following this thread) to get my meaning. It could be that I just misunderstood Scout’s original comment, and unwittingly sent us into sniping.
Jeff – you’re quite right that the parade has passed all but three of us by and we’re back here having a discussion that everyone else has no doubt tired of. But, for the sake of a good discussion, I’ll take another swing at it.
I do not assume that TEC owns the property. I am assuming, however, that the parish is not an isolated unit and that it is part of a larger network. I take your point that there are some churches that have no such links to a Diocese or national church. I still think there is a problem in those instances of what to do about the rights of those who do not wish to reaffiliate, but who are barred from continuing worship under their former clergy and rites. If the numerical majority of a Baptist congregation decides to become Jewish, does the minority who do not share that desire have no recourse?
I was looking for an ethical justification for a group of people choosing to depart a denomination taking property from a group of people who wish to stay in it. I have acknowledged here and elsewhere over the past year that there might be young parishes where the decision to depart is unanimous, and all those who leave are coterminous with all those who founded and supported the parish. In that situation, my ethical dilemma is largely muted, but I think there is still a legal argument that, in hierarchical churches, the property remains held by the larger church, whether at the Diocesan or national level. But that is not the situation in the large and older parishes where generations of parishioners have built the churches, and where there are living people who chose not to move. If you tell me that property should transfer (or stay with) the majority, I guess I would ask if you would feel the same way if the majority decided to become Muslim, Zoroastrian, Hindi, or Scientologists. If you say yes to that, I guess we just have a very different view of things, and the discussion collapses. If you say no, then I think you are attaching a theological value judgement to the decision to depart and are supporting a principle that Christian doctrine has some impact on this. If so, I ask you how the secular courts are to sort out whose doctrine is correct. I’d also ask whether a minority group departing (assuming correct Christian principles are their guide) would also have ownership rights, perhaps in proportion to their numbers. If so, could a departing third of the parish take with them a third of the assets, including the first 15 rows of pews?
Frankly, I think people who join a church, particularly an Episcopal or other highly hierarchical church (I take it you don’t think the parish stands in any hierarchical relationship to a Diocese, but I have been an Episcopalian long enough that I can’t ignore that that structure seems obvious by practice, canon and by-law) have no expectation of owning the buildings, the chattels, the accounts, or any other physical element of the church. I think they expect that, if they leave for any reason, they take nothing of worldly wealth with them. They do not get their tithes or offerings back, and they do not get pieces of the building. The principle I cannot locate is one that says at some point, that expectation changes radically to one of not only taking ownership of the Church property, but also of authority to dispossess those who do not share the urgency of their decision to leave from any interest whatsoever in a church that those who do not wish to leave may have supported just as earnestly and generously as those who leave.
Much time and treasure could have been preserved for God’s work if those who decided to leave the Episcopal Church, and, in our case, the Diocese of Virginia, had simply left. Everyone would be in an improved position now compared to where we are. And the initial decision to leave would have been better understood by those who assumed for some reason completely undetectable to me, and unilluminated thus far by anyone else (although I am open to a compelling argument) that they could leave without some initial inconvenience or sacrifice.
Scout, thanks for your comment. It helps me understand where we’re coming from, and just how big the differences are in how we conceive of what the church is. Given those differences, it’s not surprising we come out at very different places on the particular dispute that’s giving rise to this conversation.
You said:[blockquote] I do not assume that TEC owns the property. I am assuming, however, that the parish is not an isolated unit and that it is part of a larger network.[/blockquote]And I agree with that assumption, but I suspect we disagree profoundly about what being a part of that larger network entails, especially with respect to the ownership of real property.
In many ways, we’re back to the conversation we’ve previously had [url=http://babybluecafe.blogspot.com/2010/02/there-must-be-another-way-than-this.html?showComment=1265310393922#c434082203562981758]here[/url] (and comments following) about parishes taking action as parishes, only now we’ve expanded it from just “parishes in denominations with hierarchical structure†to local congregations in [i]all[/i] churches, if I’m reading you right. You said:[blockquote] I take your point that there are some churches that have no such links to a Diocese or national church. I still think there is a problem in those instances of what to do about the rights of those who do not wish to reaffiliate, but who are barred from continuing worship under their former clergy and rites. If the numerical majority of a Baptist congregation decides to become Jewish, does the minority who do not share that desire have no recourse? [/blockquote]Unless I’m misunderstanding the question, the answer is that they would have no recourse. That’s how non-hierarchical churches (and indeed most secular voluntary associations) work. Of course, they can self-police, by having rules about who can and can’t serve in leadership. Presumably, and barring a mass spontaneous conversion, the leadership of the church could recognize the subtle advances of the Jewish influence (to stick with your example) and take action to discredit or disfellowship those pushing the change. But in the end, if a majority of the congregation decided to throw in with the Jews, they could move the whole congregation there. That’s how it works.
The alternative is that once a group of individuals come together to form a church, and decide that it’s going to be (say) a Baptist church, affiliated with the Southern Baptist Convention, then that church is established in perpetuity as a Baptist church affiliated with the Southern Baptist Convention, regardless of what the membership or leaders at any point in time do.
Let me ask you this: what if the issue in a Baptist church was not whether to disaffiliate from the current denomination, but to cease operations and close the church because membership had shrunk to fifteen people? What if ten of them agreed that the closing needed to happen but the other five vehemently disagreed and wanted to continue? Would the majority be prevented from doing so?
At this point, the issue is hypothetical, because these kinds of churches do actually operate by majority rule. Secular law does recognize some basic protections for the minority in such organizations, like notice and an opportunity to be heard, but at the end of the day, the majority controls. Is that a good thing, or just poisonous fruit of the Reformation? I think we’d agree that it’s a mixed bag, even if we disagree about which way the balance tips. There certainly are bigger constitutional issues (like religious freedom and right of association) and theological issues lurking under the surface of any such meta-discussion.
Let me go a different direction. Your examples all assume that a majority of the local church wants to embrace different theological views from the denomination’s. I think we can agree (but let me know if not) that in the case of TEC, it’s the denomination that’s embracing changes and the local churches that are (to quote someone I once heard) “reasserting.†Does that change things? One of the questions that gets tossed around in these disputes is whether a congregation’s initial decision to join TEC and subject itself to its constitution and canons means that the congregation is irrevocably part of TEC, [i]no matter what TEC does, espouses, practices, etc.[/i] For the sake of the argument, what if it were TEC that wanted to become Jewish, Muslim, Zoroastrian, Hindu, or Scientologist (or perhaps some syncretistic combination thereof)? Would that change your analysis, or are parishes (though not individuals) along for the ride, in perpetuity?
I think it would be really interesting to sit down over a beer (or your preferred beverage) sometime and talk about our different ecclesiological backgrounds and why they lead us to our current views on the matter. There’s a lot of survey info out there about denominational loyalty (or the lack thereof), and while there are certainly many people who would heartily agree with your suppositions about what it means to join a local church that’s part of a denominational structure, I think there are many others who would disagree. In fact, you could probably find both views within any sizable TEC or PC(USA) congregation.
Coming back to the legal question, you said:[blockquote] If you tell me that property should transfer (or stay with) the majority, I guess I would ask if you would feel the same way if the majority decided to become Muslim, Zoroastrian, Hindi, or Scientologists. If you say yes to that, I guess we just have a very different view of things, and the discussion collapses.[/blockquote]Well, we may be at the end of the discussion, then.
But I think that rule only applies to situations where the congregation actually owns the property (which is part of what I was trying so inartfully to say to DavidH above). Such ownership brings with it the right to control the property, and however the congregation is governed, that’s how the property is controlled. For example, I would never argue that if a majority of a Roman Catholic parish wanted to break off from the Roman Catholic Church, it would be entitled to take the property. It’s clear that in the Roman Catholic Church, property is owned by the larger church—its name (or the archbishop’s name) is on the deed.
I would also (and this might surprise you) have no problem with an Episcopal diocese keeping the property vacated by a departing majority where the parish and the diocese formalized a trust relationship by agreeing that although the parish would hold legal title to the property, pay all expenses, and so forth, it would hold the property in trust for the benefit of the diocese. Same result if (as I think happens occasionally) the diocese buys the property and establishes a mission there, and then eventually deeds over the property to the newly established congregation but reserves a trust over the property.
In other words, I think the default rule for when the congregation formally owns the property should be majority control, but that the congregation should be free to change that. I take it from your comments you think the default and only rule should be that once the congregation establishes the church and affiliates, the denomination (or a minority loyal to it) always holds the ownership of the property (or at least a right to get it if the majority decides to leave).
The problem that I have with the way things have gone in TEC, the PC(USA), etc. (and I realize we’ve veered back into legal-land instead of ethics-land, but I think the two are contiguous here) is that there has been no hashing out of the actual ownership—no attempt to formalize who actually owns the property. Many of the congregations assume that their formal title, payment of purchase price, expenses, and insurance, and so forth evinces actual ownership by them, while the denominations assume that parish property is and always has been held in trust for the denomination’s benefit, even before the adoption of denominational trust clauses like the Dennis Canon thirty years ago. They have a basic but unspoken disagreement, and until a dispute arises, no one wants to talk about their different views on ownership, because it’s unpleasant and acknowledges that a dispute might arise.
(Okay, long comment. The site is making me break it up.)
(continued from previous comment)
I think and hope that many churches are addressing this at the outset with new congregations, particularly since the latest round of litigation. It doesn’t do anyone any favors to ignore the elephant in the room of disputed property ownership. Then again, talking about it might expose the conflicting views and lead to litigation anyway (such as a declaratory-judgment or quiet-title action), so maybe it’s just a classic case of avoidance.
I can’t let your last comment pass without a response. You said:[blockquote] Much time and treasure could have been preserved for God’s work if those who decided to leave the Episcopal Church, and, in our case, the Diocese of Virginia, had simply left. Everyone would be in an improved position now compared to where we are. And the initial decision to leave would have been better understood by those who assumed for some reason completely undetectable to me, and unilluminated thus far by anyone else (although I am open to a compelling argument) that they could leave without some
initial inconvenience or sacrifice.[/blockquote]
To which, of course, I’d respond that much time and treasure could have been preserved for God’s work if those who decided to leave the Episcopal Church, and, in our case, the Diocese of Virginia, [i]were simply allowed to take their property and go[/i]. Everyone would be in an improved position now compared to where we are. And the [i]Diocese’s[/i] initial decision to [i]embrace the theological innovations of the national church[/i] would have been better understood by those who assumed for some reason completely undetectable to me, and unilluminated thus far by anyone else (although I am open to a compelling argument) that [i]it[/i] could [i]embrace the changes[/i] without [i]losing some of some of its largest and most vibrant parishes[/i].
The basic disagreement, alas, persists.
There’s a lot there, Jeff. I probably can’t touch on every point and still be coherent. I think it can be fairly said that while I am struggling to understand how, particularly but not solely in a church structured like the Church of England or the Episcopal Church, at any given time a majority of the parishioners can lay claim to the assets and property of the church and eject the minority, you start from the assumption that the majority IS the parish and that there are no obligations either to the minority or to the larger church. Your basic assumption seems to be that a well-defined group of people makes a choice to enter a relationship with a church like the Diocese of Virginia or the national Episcopal Church and that the same defined group, by majority vote, later elects to leave it. You also say that, even in your self-contained parish hypothetical the parish can police who gets in and who doesn’t, thus minimizing the possibility for schism. To you, the “parish” is a present snapshot of people, all of whom elected to join initially and all of whom are still there and have the right to constantly readjust the denominational affiliation of the parish not only for themselves, but for minorities within the parish. I reject the concept that people who depart can “simply take their property and go” because I don’t think these people have property in the church that they own and I don’t like the implications for churches generally of people leaving and grabbing stuff on the way out the door. Because I don’t see the Episcopal Church (or the Lutheran or the Roman Catholic churches) as being composed of congregational parishes without obligations in the larger structure, I can’t imagine how individuals in a parish can effect a takeover that includes a conveyance of property. And I am concerned about why, between you and me, you, as someone who elects to depart, not only gets to take “your property” but also “mine” when I decide that I think, for whatever reason, departure is a bad idea. We can assume that we have supported the parish with equal generosity and that both of us are equally certain that we are observing sound doctrine.
The situation we have faced in many parishes of the Episcopal Church is not at all like the one you posit. We have parishes that have been around for centuries, where people have joined not as a defined, unchanged group, but in ones and twos over generations. Those that have paid for and supported the parish property and works are not all with us now. Many have passed on, new ones are coming in. Many of the living and dead have no strong views on the issues that caused the split or, if they do, they do not think that the proper course is departure and secession. The Diocese and the national church DO police who can come and go through Canons, by-laws, and Articles of Faith. Clergy and vestry must abide by those strictures and declare fealty to the Church as a whole, not just to the parish. When a member of the clergy or vestry cannot, in good conscience, stay in the church, he/she simply must resign and leave. We have seen a very sorry spectacle in recent years of priests and vestry members hanging around for months and years after they reached the internal decision to leave, advocating for others to do likewise from within the church, and designing ways in which to make the decision to go more palatable by suggesting that people can leave without inconvenience or sacrifice, because they will simply retain the property.
I have asked for an ethical principle that would bridge all the property dispute situations around the country. You tell me that the parish is just the people there at a given moment and that they can take the property and become a Hindu temple if the majority approves. I find that inconsistent with the canons and practices of this church and others similarly structured. I am still trying to figure out how this works.
Scout, sorry it’s taken me so long to respond—busy week.
There was a lot there, and I’m not sure it was all coherent to begin with.
On the “what-constitutes-a-parish†question, I think your characterization of my view (“the majority IS the parishâ€) is pretty much correct, at least from a legal perspective, especially with one addition: “the majority [u]at any given time[/u] IS the parish.†(I’m assuming that the parish is organized as TEC parishes are, with their names on the deeds and some degree of autonomy.) I don’t think the majority at the time of organization and affiliation will necessarily consist of the same people as at any later point; in fact, if even a small amount of time separates those two instances, the odds are very high that they won’t be the same people. My point is that whoever is in that position at any given time [u]is[/u] the parish at that time.
That’s not to say that there aren’t limits on that principle. Even within the legal realm, there can be limits on what the governing body of an organization can do. Those might come from the parish’s own bylaws: the majority at the time of organization may have limited the powers of later majorities to effect changes, although typically bylaws can be amended with a large enough majority. They might come from an agreement with the denomination (though what form such an agreement must take, who has to approve it, and what constitutes approval are all matters currently being debated). Going outside the legal realm, I absolutely agree that it’s appropriate to consider other interests, including minority views, church structure, etc. It would be unethical and absolutely un-Christian not to do so. (That’s where I’d take issue with your characterization of my position as saying the majority has “no obligations either to the minority or to the larger church.) But you seem to be saying that these other interests should trump the majority position, no matter what, and I can’t agree with that.
One of the other interests that should be considered is the desires of previous generations of members, in parishes that have been around for a while. This gets brought up a lot, on both sides; I’ve seen TEC argue that “generations of faithful Episcopalians wouldn’t support the property being taken outside The Episcopal Church,†and I’ve seen breakaway parishes argue that “generations of faithful Christians would be appalled at TEC’s theological innovations.†I guess my point is that it’s very easy to say what the dead believed, but unless they’ve left us some indication, it’s basically an appeal to unknowable authority and not very helpful, at least in terms of general principles. To the extent that a past gift contains applicable conditions (i.e., “I give the residue of my estate to St. Michael’s Episcopal Church, Smithville, to be held in trust for perpetuity,†or “I give my house for the use of St. Michael’s Episcopal Church, Smithville, as long as said parish remains a member of The Protestant Episcopal Church in the United States of America; otherwise, to my grandchildrenâ€), then you can have an argument about the terms of that specific gift.
One of the questions I was hoping you’d address, but which probably got lost in the munge of my last comment, was this one:[blockquote] Your examples all assume that a majority of the local church wants to embrace different theological views from the denomination’s. I think we can agree (but let me know if not) that in the case of TEC, it’s the denomination that’s embracing changes and the local churches that are (to quote someone I once heard) “reasserting.†Does that change things? One of the questions that gets tossed around in these disputes is whether a congregation’s initial decision to join TEC and subject itself to its constitution and canons means that the congregation is irrevocably part of TEC, [i]no matter what TEC does, espouses, practices, etc.[/i] For the sake of the argument, what if it were TEC that wanted to become Jewish, Muslim, Zoroastrian, Hindu, or Scientologist (or perhaps some syncretistic combination thereof)? Would that change your analysis, or are parishes (though not individuals) along for the ride, in perpetuity?[/blockquote]I’m still interested in your thoughts on this.
If a parish agreed when it joined TEC to be “forever bound†(or something similar) by TEC’s constitution, canons, etc., there’s a good argument that it would be bound by subsequent changes, but surely even that would have its limits, right? What if (for the sake of argument—I recognize the odds of this in reality are slim) General Convention passed an amendment to the Dennis Canon extending its scope to the personal property of parishoners? I’m not trying to set up a straw man; I’m just trying to figure out whether your position has any limits on the parish’s obligations to the national church.