Virginia Judge Rules in Favor of Cana Parishes

Posted by Kendall Harmon

Read it all.

Filed under: * Anglican - EpiscopalEpiscopal Church (TEC)TEC ConflictsTEC Conflicts: Virginia* Culture-WatchLaw & Legal Issues

47 Comments
Posted June 27, 2008 at 12:22 pm [Printer Friendly] [Print w/ comments]



1. The_Archer_of_the_Forest wrote:

Interesting little footnote at the end:

Whether it violates the Contracts Clause is a matter expressly reserved for a later date.

Another step in a long marathon…

June 27, 12:32 pm | [comment link]
2. MotherViolet wrote:

http://www.pwcweb.com/ecw/tec_to_nigeria.html

This is great news for the 11 CANA congregations who wish to continue to be Anglican while TEC moves away from it’s base and calling.

You may read more on the move from TEC to Nigeria at http://www.pwcweb.com/ecw/tec_to_nigeria.html

June 27, 1:00 pm | [comment link]
3. The_Elves wrote:

Should folks be having trouble accessing the linked PDF file, please be patient.  It’s getting very heavy traffic.

The main discussion thread at SF on this ruling is here:
http://www.standfirminfaith.com/index.php/site/article/13745/

There are some excerpts of the ruling included in various comments.

June 27, 1:02 pm | [comment link]
4. Dale Rye wrote:

Given the tone of the first two opinions, it seems exceedingly unlikely that the Contracts Clause is going to be seen as an impediment to this state governmental policy imposing an essentially congregational polity on the formerly Episcopal Church.

June 27, 1:03 pm | [comment link]
5. Phil wrote:

Thank goodness we will not have a state governmental policy of imposing the (non-episcopally-ordered) Episcopal Church’s religious beliefs on the CANA parishioners.

June 27, 1:07 pm | [comment link]
6. jamesw wrote:

Dale:  I must have missed the part in Bellows decision where it says that the state law forbid TEC from retitling the parish property in the name of the diocese…..like the Roman Catholic Church did?!?!?  This Virginia statute imposes no polity on TEC - rather TEC chose to legally structure itself according to a congregational polity when TEC chose to have parish property legally owned (and titled) by the parishes.  Now TEC is crying because it faces the consequences of the legal organization it chose for itself, and wants the courts to impose special rules because it is a church.

The Roman Catholic Church chose to legally structure itself according to a heirarchical polity and is not subject to this Statute.

Dale - actions have consequences, and I am sorry you don’t like those consequences, but that’s life.

June 27, 1:14 pm | [comment link]
7. Katherine wrote:

As the judge pointed out, the Diocese of Virginia has had 140 years to make its property titles correspond to its church polity.  Other church organizations in the ruling are cited as having done so.  The Diocese’s failure to do so is entirely of its own doing.  This is a property ruling, not a religious ruling.

June 27, 1:20 pm | [comment link]
8. Dilbertnomore wrote:

You can bet your bottom dollar the January 2009 Diocesan Council of the Diocese of Virginia will legislatively plug the titling leak in the dike. If there are any orthodox churches left that don’t hold a delusional view of the beneficence of +Peter/+Shannon it is well past time for them to get their paperwork in order. For those left, unfortunately, delusionalism seems to be the norm for the remnant. A year from now those who wait will be firmly controlled under the hobnailed boot of the TEO through it’s vassal, the Diocese of Virginia.

This is the Diocese of Virginia response to the ruling:
“Today’s ruling upholding the constitutionality of the Division Statute in Virginia is regrettable and reaches beyond the Episcopal Church to all hierarchical churches in the Commonwealth. We continue to believe that this Division Statute is clearly at odds with and uniquely hostile to religious freedom, the First Amendment and prior U.S. and Virginia Supreme Court rulings. We are unwavering in these beliefs and will explore fully every option available to restore constitutional and legal protections for all churches in Virginia.

The Diocese remains steadfast in its commitment to current and future generations of loyal Episcopalians and will continue to pursue every legal option available to ensure that they will be able to worship in the churches their Episcopal ancestors built.”

Find it at: http://thediocese.net/News_services/pressroom/newsrelease57.html

Sounds like there is no limit to the enthusiasm of the Diocese of Virginia and the TEO to continue demonstrating their love of things over their love of God.

June 27, 1:37 pm | [comment link]
9. Br. Michael wrote:

Likewise if 815 wants to claim the property then the property should be titled in 815’s name.

June 27, 1:52 pm | [comment link]
10. Jeffersonian wrote:

I must have missed the part in Bellows decision where it says that the state law forbid TEC from retitling the parish property in the name of the diocese…..like the Roman Catholic Church did?!?!?  This Virginia statute imposes no polity on TEC - rather TEC chose to legally structure itself according to a congregational polity when TEC chose to have parish property legally owned (and titled) by the parishes.  Now TEC is crying because it faces the consequences of the legal organization it chose for itself, and wants the courts to impose special rules because it is a church.

Well put, James.  IANAL, but I’m assuming that there are certain advantages to structuring one’s self as a congregational church - insurance, liability, financial, etc. - that TEC has enjoyed for these 140 years.  Now that the downside of the structure it chose is rearing its head, they want to pretend they wanted to be fish, not fowl, all along.

June 27, 1:53 pm | [comment link]
11. Br. Michael wrote:

You know titling property in the name of the owner is not a novel concept.

June 27, 2:00 pm | [comment link]
12. The_Archer_of_the_Forest wrote:

I likewise think all this is a tempest in a teapot. Whoever’s name is on the plain title of the deed should be the end of the matter. But then, that would be too logical.

June 27, 2:03 pm | [comment link]
13. Dale Rye wrote:

OK, so the Diocese passes a rule (or passed a rule in 1867) telling its parishes to retitle their property in the name of the Diocese. (I don’t know why they would have done that, incidentally, since everybody assumed until recently that such a move wasn’t necessary to defend denominational property from being taken out of a hierarchical denomination… but let’s pretend.) If a parish refuses to comply, they are free to leave the Diocese and take their property with them. Even if they do choose to comply, it concedes the principle that the local membership runs the parish independent of outside control and are free to dispose of its property as they see fit. The theological principle that a parish is no more than a dependent subdivision of a diocese has been abandoned either way.

If congregations have that authority, it is now the case in Virginia that an Episcopal parish is independent of any meaningful control by its diocese, except insofar as a majority of the parish’s current members may choose to comply with diocesan directives. If the majority choose to take the parish—-and all its property—-out of the diocese, the minority has no rights at all.

Incidentally, I’m not sure that your suggested remedy would even work in Virginia. On its face, the “Church division law” applies to all the property used by the congregation, regardless of who holds legal title. Virginia is not a “neutral principles” state where the four corners of the title documents prevail against all claimants.

The whole point of the 1867 law was to provide a rule for how to apportion property held by competing Methodist Annual Conferences or Presbyterian Presbyteries following the schisms over slaveholding. The Legislature decided that each congregation got to decide by majority vote which judicatory it would belong to, and then take the property it was using into that body with it. In most cases, at least in the Methodist context, the legal title was not held by the congregation but by a separate body of trustees for the benefit of “The Methodist Episcopal Church in X-ville.” Even in that case, the congregational vote to transfer into the “Methodist Protestant Church” or the “M.E. Church, South” would control over any contrary decision by the trustees.

I would assume that the same would apply if the buildings used by The Falls Church were held in the name of a separate entity or even in the name of the Diocese of Virginia. The court held that CANA is a branch of the Diocese, so it is left up to a congregational meeting which of those branches will have the benefit of the buildings.

June 27, 2:36 pm | [comment link]
14. Jeffersonian wrote:

The problem with your hypothesis, Dale, is that every simply assumed that their property belonged to the diocese (or the national church) all along until, that is, the eleven parishes departed.  Not even TEC (and its predecessors) believed that, else why would it pass the Dennis Canon?

June 27, 2:51 pm | [comment link]
15. Phil wrote:

The judge seems to disagree as to the importance of the title, Dale, as he notes

In fact, [the diocese] could have, at any time within the past 140 years since 57-9 (or the predecessor thereto) was originally passed, re-titled their properties in the name of a Bishop or other ecclesiastical officer.(35) If they had done so, they could have permanently avoided any potential application of 57-9(A).
...
(35) Other religious entities in Virginia, by this means, have entirely put themselves beyond the reach of 57-9(A). See Stipulations of Fact, ¶¶ 5-8, which state as follows:
5. Title to the real property of parishes (local congregations) in Virginia attached to the Roman Catholic Church is held in the name of the Bishop of the Diocese in which the parishes are located. …

Etc. [emphases mine]

June 27, 2:56 pm | [comment link]
16. William P. Sulik wrote:

Judge Bellows ruling shows how progressive the reconstruction-era statute is.  It moves away from establishing either a hierarchical-favored interpretation of the law or a congregational-style interpretation of the law.  Instead, the Virginia law uses neutral principles of law to interpret what the parties really believe.  As the other comments note, if a denomination believes in a national hierarchy, the titles should be in the name of the national headquarters; if a confederation of dioceses, then in the name of the local diocese, etc. 

Therefore, a denomination must actually “walk the walk” and not just “talk the talk.”

As an aside, Dale, #4, your comment (”...this state governmental policy imposing an essentially congregational polity on the formerly Episcopal Church…”) is uncharacteristically bitter and doesn’t reflect the probity I almost always see from you.  I am sure you have read the opinion - this isn’t a matter of a judge imposing something new on churches—or even the Lincoln Republicans of 1867.  This is something the Episcopal Church in Virginia has done to itself, through neglect, laziness, or ignorance (or some combination thereof).  As lawyers, we’ve had clients who have structured deals and transactions in such a way that may run afoul of the law.  That’s not the fault of the state or the judge.  Perhaps it’s time that the ECUSA counsel and the counsel for the DioVa tell their clients to stop throwing good money after bad and drop these cases.

I refer you to rule number two of the Colin Powell rules:  “Get mad, then get over it.”  http://www.geoffmetcalf.com/414.html —it’s time to move on.

June 27, 2:57 pm | [comment link]
17. Pb wrote:

The Virginia case is unique because of the statute. I do not understand the logic that TEC has always owned the property as a hierarchial church which someone felt the need for the Dennis canon of 1979. The attempt to impose a lien shows the thinking in 1979.

June 27, 3:08 pm | [comment link]
18. Dale Rye wrote:

Re #14: It passed the Dennis Canon to respond to the first few judicial decisions that started coming down the other way. Up until that point, it was black-letter law in the great majority of states that property disputes within a hierarchical denomination should be settled conclusively by the final authorities of the denomination. Until California and a few other states rejected that principle, there was no need for a specific canon.

Re #15: The judge may say that the title controls, but that really isn’t what the statute says. It does not talk about the property owned by the congregation, but about “the title to and control of any property held in trust for such congregation.” So, even if the Diocese had been the legal title-holder it could have been sued on the basis that it was simply holding the property used by the congregation in trust for it. Again, most of the cases that the statute was aimed at in the 1860s involved property used by a congregation but owned by trustees in the name of the denomination.

June 27, 3:10 pm | [comment link]
19. Jeffersonian wrote:

Re #14: It passed the Dennis Canon to respond to the first few judicial decisions that started coming down the other way. Up until that point, it was black-letter law in the great majority of states that property disputes within a hierarchical denomination should be settled conclusively by the final authorities of the denomination. Until California and a few other states rejected that principle, there was no need for a specific canon.

I think you’re making my point for me.  If it was “black-letter law” that TEC was in control all parish property, these judicial decisions would not have come down against TEC.  Futher, it is becoming clear that Virginia courts do not recognize a unilateral, post-hoc property grab as a valid expression of a church’s authority or tacit consent as agreement to such a grab.

TEC may be a theological heirarchy, but it did not structure itself that way legally (as the judge pointed, the Catholic Church did).

June 27, 3:30 pm | [comment link]
20. Pb wrote:

The Hull Memorial and Eastern Heights Presbyterian cases out of Savannah went to the U.S. Supreme Court. It held that unless the denomination had a lien, record title controlled. Hence the Dennis canon.

June 27, 3:33 pm | [comment link]
21. pendennis88 wrote:

It was said:

OK, so the Diocese passes a rule (or passed a rule in 1867) telling its parishes to retitle their property in the name of the Diocese. (I don’t know why they would have done that, incidentally, since everybody assumed until recently that such a move wasn’t necessary to defend denominational property from being taken out of a hierarchical denomination… but let’s pretend.)

Except that there is no basis for saying “everybody” assumed that.  It was litigated to varying results in varying states, and in fact, I think most people, prior to the Dennis canon, thought it was unclear, but also probably not important.  In Virginia, because of the division statute, people assumed the opposite.   

If congregations have that authority, it is now the case in Virginia that an Episcopal parish is independent of any meaningful control by its diocese, except insofar as a majority of the parish’s current members may choose to comply with diocesan directives. If the majority choose to take the parish—-and all its property—-out of the diocese, the minority has no rights at all.

Untrue.  The diocese can give the rector an order and depose him for not following it.  They have not done that because they have not wanted to give them due process.  The diocese can also reduce the parish to mission status.  They have had lots of options, and chosen not to use them. 

Incidentally, I’m not sure that your suggested remedy would even work in Virginia. On its face, the “Church division law” applies to all the property used by the congregation, regardless of who holds legal title. Virginia is not a “neutral principles” state where the four corners of the title documents prevail against all claimants.
....
I would assume that the same would apply if the buildings used by The Falls Church were held in the name of a separate entity or even in the name of the Diocese of Virginia. The court held that CANA is a branch of the Diocese, so it is left up to a congregational meeting which of those branches will have the benefit of the buildings.

Um, no, it helps to look at the face of the statute.  The hierarchical prong of the statute applies only to “any such congregation whose property is held by trustees”.  If the diocese held title, then the diocese would own it and the statue would be inapplicable.  That is not in dispute.

Incidentally, one of the reasons the diocese has not tried to have the ownership of the property clarified before, in Virginia and many other states, is that it wanted to be the “owner”, but not the owner.  Does the diocese want to be liable for acts committed on the property?  Does it want to be liable for the mortgage?  Do rectors think they could as easily get people to be generous to restore the wealthy diocese’ buildings?  They wanted to have it both ways.  It did not work in Virginia, so far, but results in other states may vary.

I wonder if the diocese will need to take out another loan to fund the appeal.

June 27, 3:37 pm | [comment link]
22. Jeffersonian wrote:

Incidentally, one of the reasons the diocese has not tried to have the ownership of the property clarified before, in Virginia and many other states, is that it wanted to be the “owner”, but not the owner.  Does the diocese want to be liable for acts committed on the property?  Does it want to be liable for the mortgage?  Do rectors think they could as easily get people to be generous to restore the wealthy diocese’ buildings?  They wanted to have it both ways.

Precisely my point in #10.  For 140 years, TEC has enjoyed the benefit of dispersed ownership and therefore, liability on many levels.  Legally, the arrangement hedged certain risks, but it also exposed TEC to others, among them parishes waving goodbye and taking the property they are title to with them.

June 27, 4:01 pm | [comment link]
23. Jeffersonian wrote:

Or, as the sage Bart Simpson once opined, “Well, I’ve made my bed, now it’s time to weasel out of it.”

June 27, 4:02 pm | [comment link]
24. tired wrote:

I never knew the RCC in Virginia had been rendered congregational…

rolleyes

anywho, I think TEC is letting a bit too much of its “core doctrine” show for community standards here in the Commonwealth.

red face

June 27, 4:14 pm | [comment link]
25. Mike L wrote:

#18,

It does not talk about the property owned by the congregation, but about “the title to and control of any property held in trust for such congregation.” So, even if the Diocese had been the legal title-holder it could have been sued on the basis that it was simply holding the property used by the congregation in trust for it.

Any entity can be “sued”, it’s the prevailing part that matters. And in this scenario, I believe the only way for the congregation to prevail would be for the courts to decide “and” means the same thing as “or”, which I would bet money against.

June 27, 4:19 pm | [comment link]
26. flaanglican wrote:

Here’s the Washington Times story

June 27, 4:49 pm | [comment link]
27. miserable sinner wrote:

A slight rev on my comment on SFIF -

It ain’t Appomattox quite yet, but for Bishop Lee this is definitely the end of beginning or the beginning of the end.  Given 815’s stance I assume it will end at the Federal Supremes.  (As discussed a while back, due to its make up, I personally would give close to even odds that the Fed Supremes would come to a different conclusion.)

That said, my quick read finds it to be a well-crafted opionion. One should have expected no less from this judge.

To me, the money quote is the one Phil identifies. (yes, I understand Dale’s counter-argument and see its merit)  Also, the Diocese/ECUSA lawyers have obviously tried this judge’s patience with their seeming sophistry.  If I were them I’d hate to go before this judge on another matter any time soon.  grin

I pray +Virginia is now calling 815 for permission to call a truce and proceed with a negotiated settlement from a much weaker position than he had when the standstill agreement was allowed to expire.

Peace to ALL, prayers for ALL,

June 27, 4:52 pm | [comment link]
28. archangelica wrote:

This reappraiser rejoices in this ruling! Thank you Jesus! Perhaps now 815 will re-think this nasty business of mandatory litigation and return to just and Christ honoring settlements with parishes wishing to depart by majority vote.
I’d much rather see this money given back to our TEC missionaries who have all lost their meager stipends. Shameful!
This is a lesson TEC needs to learn. Congratulations Virginia!

June 27, 4:59 pm | [comment link]
29. miserable sinner wrote:

Personally, I’d recommend a 40 or 77 year standstill agreement. 

Peace,

June 27, 5:04 pm | [comment link]
30. Chris Hathaway wrote:

If a parish refuses to comply, they are free to leave the Diocese and take their property with them. Even if they do choose to comply, it concedes the principle that the local membership runs the parish independent of outside control and are free to dispose of its property as they see fit. The theological principle that a parish is no more than a dependent subdivision of a diocese has been abandoned either way.

This is an interesting argument, Dale. You seem to be saying that no authority can exist if those under authority freely and independently choose to be under that authority in the first place. So initial freedom negates the ability to maker a binding submission to another. That explains the poor state of marriage where vows no longer can be seen to hold. This argument seems very similar in logical assumptions to the reappraiser argument that the church cannot be under the Bible because it possessed the authority to decide what was Scripture and what wasn’t.

June 27, 5:06 pm | [comment link]
31. jamesw wrote:

Dale:  Y’all don’t know the situation in Virginia if you think that “everyone assumed the diocese owned the parish properties”.  Simply not true.  Having lived in the Diocese of Virginia for a few years, it was abundantly clear that the parishes there saw the parish buildings as THEIR buildings, and heaven help the diocese if it claimed to own them.  The origins of the Diocese of Virginia bear this out - the original Virginia parishes were all started and built by the laity.  The Bishop of London was a very distant authority who licensed the priests to come by every now and then.

The simple truth, Dale, is that actual ownership wasn’t an issue prior to TEC’s increasing departure from its theological roots.  When it became a legal issue, TEC could have responded by requiring the retitling.  It did not do so, because it knew it could not do so without incurring the wrath of the parishes.  Why would it expect such wrath?  Because the idea that the diocese “owned” the parish property was so alien to Episcopalians.

June 27, 5:15 pm | [comment link]
32. flaanglican wrote:

Watch for retitling of TEC properties around the country in the near future. . .

June 27, 5:24 pm | [comment link]
33. miserable sinner wrote:

#31 jamesw speaks truth.  I will say however, as a former member of the Falls Church, they and Apostles at least, for the last decade or so, have been quite aware of the implications of building/expanding and what would happen if they felt called away from what they saw as the growing apostacy of the national church.

If I’m not mistaken, not so may years ago as part of their building campaign discernment process a resolution being passed at Apostles to stay within the Episcopal Church structure.  Although I’ve been away for a while, ISTM that, not surprisingly, Falls Church has kept its own campus expansion plans on hold until all of these property questions were resolved to their satisfaction.

Peace,

June 27, 5:36 pm | [comment link]
34. Dale Rye wrote:

OK, let me try again…

Why does this decision bother me? When I was in private practice, one of my toughest jobs was getting guys who had incorporated their family business to understand that they and the corporation were not one and the same. Likewise the late King Charles I… he could not grasp the traditional political theory of “the King’s Two Bodies,” the idea that Charles Stuart as an individual human being was not one and the same as the King’s Majesty of England.

I seem to be having the same difficulty here getting across the difference that I can clearly see between a parish and a congregation. I agree that parishes should have the right to control the property held in their name. I am not claiming that “everyone assumed the diocese owned the parish properties” because that would clearly be untrue. Where I disagree is with the assumption that the majority of the congregation in a non-congregationalist denomination should have the unrestricted right to control the parish and take into another denomination.

At the time of the American Revolution, the term “parish” in England, Wales, and Ireland, as well as Virginia and the other colonies where the Church of England was established, referred to a geographic subdivision of a diocese organized to carry out certain functions, both ecclesiastical and civic. The residents of the parish paid tithes to support those functions. In England, an Incumbent (a Rector or Vicar) held a freehold estate in the parish property and income in exchange for maintaining the church and providing services personally or by a Curate. The Incumbent was appointed by some person (such as the local Squire) or corporation (such as an Oxbridge college) who owned the right to present to the living. The congregation had no control at all.

In the American outlier of the Diocese of London, there weren’t enough clergy for most parishes to have a permanent Incumbent, so the freehold was generally in the name of the vestry—-often a self-perpetuating body not answerable to the congregation—-who if possible hired a clergyman to provide for the cure of souls.

Either way, however, legal title to the property and income were not held absolutely, but subject to a trust. They could only be used for purposes consistent with the ecclesiastical (and civic) functions of the parish, primarily to provide pastoral care and regular Divine Worship in a parish church (and possibly supplemental chapels), in accordance with the doctrine, discipline, and worship of the Church of England by law established.

That trust was enforceable in either the ecclesiastical or secular courts by its beneficiaries. These included on the one hand the ecclesiastical authorities of the province, diocese, and archdeaconry and on the other hand all the residents of the parish (not just the “congregation” of persons who regularly worshiped in the parish church or chapels). There could be no more question of the owner of the freehold, whether clergyman or vestry, attempting to take the parish out of the diocese than of the mayor and council of a town trying to take it out of the county. An “independent parish” was a contradiction in terms, because a parish was by definition a subdivision of a diocese (you could as well talk about the elbow of an armless man).

The original Fairfax Parish was a geographic subdivision of Virginia. After disestablishment, it lost its civic functions but it continued its existence as a nongovernmental entity with the religious functions of providing pastoral care and Divine Worship in accordance with Episcopalian principles (which included the definition of a parish as not being an independent entity). Upon the organization of the Diocese of Virginia within the Episcopal Church (by the Diocesan Convention’s unqualified accession to the TEC Constitution and Canons), the responsibilities that the parish had owed to the Church of England and Diocese of London passed to TEC and the DioVA (by the vestry’s unqualified accession to the diocesan constitution and canons when they requested representation in the convention as an Episcopal church).

The various parishes eventually carved out of Fairfax, such as Truro and The Falls Church, were created by the DioVA as subdivisions of that diocese, not as independent religious corporations. They thus had a continuing duty to use their property and income in a manner consistent with the doctrine, discipline, and worship of TEC. That duty is implicit in every section of the diocesan and national canons. For over 200 years, the secular courts of Virginia stood ready to enforce that duty whenever it became necessary.

The “parish,” then, is the entity (dependent on the diocese) which carries out the work of the church in a particular place. It is not synonymous with the “congregation,” the set of individuals who worship in the buildings belonging (in trust or outright) to the parish and who personally perform its work. To repeat, the parish owns the buildings; the congregation does not. Pretty much the same arrangement exists in other hierarchical denominations: the legal title to Methodist buildings is usually in the name of trustees who hold them for the benefit of a pastoral charge that is, by definition, subject to the authority of an Annual Conference within the denomination and not solely to the will of the local congregation.

Because an Anglican parish is by definition in relation to a particular diocese, nobody until a few years ago ever imagined that it could split from the diocese except to move to another diocese with the consent of both jurisdictions. The congregation is free to do whatever it wants, of course, including leaving one parish and joining or forming another, whether in the same or another diocese. They are also free to join or form an independent church that is not under the oversight of any diocese. It is a free country. However, to say that the congregation can do any of those things is not to say that the parish as a distinct entity can do them. Individuals can do things that corporate entities can’t. King Charles the Martyr shouldn’t have acted like the Divine Right of Kings made Charles Stuart individually infallible.

So, the question is: in the event of a dispute, who determines the identity of the continuing parish that controls the property? In England, it is the Established Church, but that wasn’t an option here after the adoption of the First Amendment. In most U.S. states, it is the final authorities of the religious group itself; for a congregational church, that is the congregational meeting, while for a hierarchical denomination it is whoever the denomination as a whole has chosen to exercise final authority in such disputes. I still think that minimizes the entanglement of the state in internal religious matters with a theological dimension.

In California and some other states, it is whoever holds legal title; if the trustees of an Episcopal parish want to give the buildings to the Moonies, they are free to do so. In Virginia, it is now the majority of a congregational meeting, whether the parish belongs to a hierarchical denomination or not. In other words, this decision means that there is no longer any distinction in Virginia between the parish and the congregation in hierarchical denominations, any more than there has ever been in congregationalist denominations. The Falls Church is no more or less than whatever the majority of its congregation wills it to be.

My problem with that is that the definition of a parish, whether “a subdivision of a diocese” or “an autonomous congregation,” involves a theological commitment to one doctrine of the church rather than another. Congregationalists are really nice people, but they have ecclesiological beliefs that are simply not consistent with the Anglican commitment to diocesan oversight. I do not think that the Commonwealth of Virginia should be enforcing their religious beliefs and regarding mine as dispensable.

Don’t tell me that TEC could negotiate with its parishes and ask them to give up their autonomy. Certainly that is true, but only if TEC admits that its parishes had autonomy in the first place… which it cannot do for reasons of theological principle. Catch 22: if you don’t bargain with your congregations, the parishes will be independent, but if you bargain with them you are conceding that they are independent already.

This isn’t just TEC being denied the right to determine its own ecclesiology. The churches that filed amicus briefs include virtually everybody from the African Methodist Episcopal Church through the Lutherans, Presbyterians, and Seventh-Day Adventists to the Worldwide Church of God. They all think that a religious denomination should be able to determine how to structure its internal affairs without legislative or judicial interference from the government. They should be able to define what a parish is, not a judge.

June 27, 7:37 pm | [comment link]
35. jamesw wrote:

Dale:  If TEC is heirarchical as you claim, then I don’t suppose that they do need to “negotiate” with parishes to give up their title.  They would just order it, wouldn’t they?  But seeing as nobody in their right mind thinks a TEC bishop or diocese could simply order it, that kind of answers the question about just how “heirarchical” TEC really is.

Dale - all of the denominations you mention are perfectly free to act according to the real and actual polity they have created for themselves.  If they are truly heirarchical, then demanding titles to property won’t be an issue.  If there IS an issue in demanding titles to properties, then they were not as heirarchical as they claim.

June 27, 8:07 pm | [comment link]
36. Cennydd wrote:

It seems to me that, in the Continuing Anglican bodies, each parish actually owns their own property, yet these Churches do claim hierarchy, with their Presiding Bishops, Diocesans, and synods.  Where then, is the argument that they are not hierarchical?

June 27, 10:03 pm | [comment link]
37. Dale Rye wrote:

Since the courts will not assist the diocese in enforcing its orders, how do you propose it could “order” a parish to do anything… guns, artillery, improvised explosive devices? Since the Vatican doesn’t have any armed forces, I suppose the Roman Catholic Church isn’t as hierarchical as it claims, either.

June 27, 10:09 pm | [comment link]
38. The Anglican Scotist wrote:

Maybe the sticking point is simply this: the CANA-group is willing to endorse and adopt for themselves a law implying they have congregational polity, in strict terms invalidating their theological status as parishes.

Why doesn’t that trouble them?  Maybe for them being congregational is preferable to living under the polit yof the Episcopal Church—period: the chasm between the CANA goup and TEC is simply that deep.

Mind you, Virginia has a long tradition of congregational polity, ostensibly going back long before the formation of the Episcopal Church. It does not seem to be much of a stratch to imagine conservative CANA evangelicals picturing parish polity, with its implication of hierarchical submission, as accidental and—when push comes to shove—dispensable.  One might expact something different from Fort Worth, but that fact is beside the point.

The CANA-group has indeed “crossed the Rubicon” in hereby declaring themselves for a certain type of congregational polity, but they see this as consistent with their Being good Anglicans and Being good Christians.

In this case, it seems legal maneuvering has uncovered a live, active theological divide.

June 27, 10:44 pm | [comment link]
39. William P. Sulik wrote:

Dale, thank you for your long and thoughtful response in #34.  I think I understand where you are coming from.  However, like the family businessman you mention in your first paragraph, I think you may have difficulty separating your Episcopal Church paradigm from the neutral principles approach. 

The trouble I see with a court deferring to either the claim of the Diocese of Virginia/ECUSA on one hand or the local congregations on the other is that this becomes an impermissible entanglement of the state in “the religious thicket.”  The way to avoid this is neutral principles of law approach which was developed by Justices Thurgood Marshall and William Brennan in Jones v. Wolf, 443 U.S. 595 (1979).  This is what the Virginia statute calls for and is what Judge Bellows has done.  Even though he clearly seems annoyed at some of the DioVa/ECUSA’s arguments, he is not a petty man and will give the contract clause issue a fair hearing.

Now, I think Brother Sinner, in post 27 above, raises an interesting point - that the U.S. Supreme Court, as presently constituted, may actually back away from Jones and neutral principles.  Only Stevens remains from that case—I think he could get Souter and Breyer, both of whom seem to get into all that stuff.  But the Catholic majority—I don’t know.  Scalia, Alito, and Kennedy are very doubtful in my mind.  That leaves Roberts, Thomas and Ginsburg.

Brother Sinner also indicates the best course would be to settle—this makes eminent sense to me and it is still my prayer.

June 27, 11:48 pm | [comment link]
40. CStan wrote:

A parish is responsible for all the souls in the parish whether they come to church or not.  There are still a few Catholic priests who will urge you to attend the church in your geographical parish instead of driving across town to their parish.  You’re not supposed to follow your favorite priest around town if he gets moved by the diocese.  You have a responsibility to your geographical parish, your “neighbors” (in the Biblical sense) as it were.  You’re basically supposed to go to the church whose bells you can hear on Sunday morning (RC or Anglican since no other churches have the ‘parish’ concept).

Essentially Dale Rye is right and it is not an esoteric point or at least shouldn’t be.

June 28, 7:03 am | [comment link]
41. Br. Michael wrote:

Don’t tell me that TEC could negotiate with its parishes and ask them to give up their autonomy. Certainly that is true, but only if TEC admits that its parishes had autonomy in the first place… which it cannot do for reasons of theological principle. Catch 22: if you don’t bargain with your congregations, the parishes will be independent, but if you bargain with them you are conceding that they are independent already.

Well Dale, some do predate their diocese.  And some were created and then joined an existing diocese and the diocese could have made them deed over their property as the price of admission.  It is no problem at all to have property retitled in the name of the diocese, if the dioceses had really wanted this.  And quite frankly a lot of the “theological principle” is newly discovered.  TEC has always been a mix of hierarchal and congregational polity.

June 28, 8:32 am | [comment link]
42. Todd Granger wrote:

I, too, appreciate Mr Rye’s lengthy and thoughtful response.  The distinction between “congregation” as (liturgically/ecclesially) defined and “parish” as canonically defined is perhaps a useful one, though further thought may disclose that it cleaves too cleanly through two entities that are too closely intertwined so easily to be abstracted from one another.  Vis-á-vis this distinction, though he lapses once into a mention of the “individual”, I appreciate that Mr Rye has not made his argument by appealing to a fundamentally non-Christian and non-Anglican notion (that “individuals” leave a diocese, or The Episcopal Church) that we have frequently seen from diocesan bishops, chancellors, 815 and various revisionist and institutionalist bloggers.  It is frequently the case - as with Christ Church (Plano), the Virginia churches, Christ Church in Kansas, the southern California churches - that congregations leave.  Even when families and individual members trickle out of existing Episcopal parishes, they often do so in concert with others, frequently joining the same new church (be it Anglican or otherwise).

However, there are a couple of difficult points for Mr Rye’s argument, noted by subsequent commenters.  First, there is of course the issue that parishes are no longer geographical but canonical entities whose congregations are - at least in those parts of the country where Episcopal churches are reasonably close together - mostly self-selecting.  What is the practical ecclesiology involved in this long-time practice, which dioceses have really done nothing to discourage?  Second, as Br Michael points out in #41, there was a period (a number of years, in fact), during which Fairfax Church was not only not a parish in the royal colony (commonwealth?) of Virginia, but wasn’t an outlier parish of the Diocese of London - or of the as-yet-uncreated Diocese (or Episcopal state convention) of Virginia.  What effect does this have on not only the legal arguments, but also any ecclesiological argument?  (I don’t presuppose any particular answer to this question.)

One further point:

Since the Vatican doesn’t have any armed forces, I suppose the Roman Catholic Church isn’t as hierarchical as it claims, either.

On the contrary.  Certainly there is no longer an army of the Papal States (outside the Swiss Guard - so watch out when pantalooned men with exceptionally good military training show up at your local RC parish armed with halberds), but the Catholic Church was able to convince its American parishes to hand over their title deeds in the 19th century.  Those parishes that didn’t comply were threatened with excommunication.  That works if you believe your Church to be “The Church” - which, despite the constant appeal to ancient canons drafted by bishops who very much believed their churches to be The Church - is a belief to which neither Episcopalians nor The Episcopal Church subscribes.

(By the way, this doesn’t universally work in the Catholic Church anymore, either.  Note the recent example of St Stanislaus’ Church in Saint Louis.)

June 28, 10:13 am | [comment link]
43. tired wrote:

I just don’t see why property control should be considered the sine qua non of a hierarchical church.  Given the potential for a variety of neutral principle approaches in the US, it is simply not convincing that the RCC in Virginia, for example, is somehow rendered congregational by this statute. 

Are not the more important aspects of ecclesial authority unrelated to the ownership of corporeal property?

rolleyes

June 28, 10:24 am | [comment link]
44. pendennis88 wrote:

The argument in #34 sums up like this:  the parish is a creature of a hierarchical church.  Therefore, all property of the parish must be the property of the hierarchical church.  Otherwise, you are requiring it to be congregational.

But that does not logically follow.  There is no reason why a parish in a hierarchical church cannot own its own property if the hierarchical body permits.  All 57-9 says is that if the hierarchical body permitted parishes to hold their property in such a way, then if the people in the parish choose to leave in a division, then the majority get to take the property.  The hierarchical body was free to require parishes to hold their property in a different way (and in other Virginia parishes did).

And it is then argued, “Don’t tell me that TEC could negotiate with its parishes and ask them to give up their autonomy. Certainly that is true, but only if TEC admits that its parishes had autonomy in the first place… which it cannot do for reasons of theological principle. Catch 22: if you don’t bargain with your congregations, the parishes will be independent, but if you bargain with them you are conceding that they are independent already.”  Exactly, and you admit too much.  The hierarchical church set itself up in a way that made parishes in Virginia able to take their property, and created the risk of rebellion if it tried to take that away (and by the way, I am sure some revisionist parishes would have rebelled at that as well - I recall that it was a coalition of the revisionist and reasserter parishes that tanked the idea of a mandatory diocesan assessment in Virginia several years ago).  But the rebellion can be put down using the canons.  It is happening everywhere.  And to complete your line of reasoning in #34, the episcopal parish would continue to be what the diocese said it was even after it deposed the rebellious rector and removed the dangerously independent vestry.  It just would do so without some parish property that the diocese had declined to own in accordance with Virginia law.  And thus the hierarchical polity of TEC is preserved.  This was always up to diocese.  That it was hard for reasons of its own creation is not an excuse for not doing it that the judge was willing to accept.  Indeed, giving TEC too much of a pass on following state laws creates constitutional problems of its own by establishing a religion.

June 28, 10:27 am | [comment link]
45. Ross wrote:

#39 William P. Sulik says:

The trouble I see with a court deferring to either the claim of the Diocese of Virginia/ECUSA on one hand or the local congregations on the other is that this becomes an impermissible entanglement of the state in “the religious thicket.” The way to avoid this is neutral principles of law approach which was developed by Justices Thurgood Marshall and William Brennan in Jones v. Wolf, 443 U.S. 595 (1979).  This is what the Virginia statute calls for and is what Judge Bellows has done.  Even though he clearly seems annoyed at some of the DioVa/ECUSA’s arguments, he is not a petty man and will give the contract clause issue a fair hearing.

I am not a lawyer of any description… but it seems to me that the Virginia division statute does not embody “neutral principles.”

Neutral principles, as I understand it, would treat a religious organization exactly the same as any other type of organization when it comes to matters goverened strictly by secular civil law, e.g., property ownership.  A neutral principles ruling would begin by looking to see what name is on the title—in the case of Truro, I would guess that it’s some form of non-profit entity incorporated under Virginia law—and then ask who gets to speak for that entity—and again, if I had to guess, I would expect that the bylaws of that non-profit specify that the Truro vestry makes the decisions.  If the Truro vestry agreed on seceding, then by neutral principles that would be the end of it.

But instead the Virginia statute singles out religious bodies from all other kinds of organizations and treats them differently.  Not only that, but it mandates how the decision must be made (by a vote of the congregation) regardless of what the polity of that particular congregation might be.  Perhaps in some denominations the rector makes binding decisions; perhaps in others decisions are made by a group of elders; perhaps in others by a vote of all left-handed redheads over six foot one.  The Virginia law doesn’t care.

If it were some other kind of organization involved—say, a business in Virginia that was owned by a larger out-of-state business decided it wanted to be independent—then nobody would suggest for a moment that a vote of the employees would have any effect.  The courts would look at who gets to to make decisions for the businesses in question, and by their own bylaws that would be their shareholders.

Now, in this particular case the distinction may be moot, as I presume that under a strict neutral principles examination it would still be found that whomever it is that governs the legal entity that is on the Truro title agreed to depart TEC.  But the nit-picker in me wanted to question the term “neutral principles” when applied to the Virginia statute.

June 28, 12:21 pm | [comment link]
46. Chris Hathaway wrote:

Don’t tell me that TEC could negotiate with its parishes and ask them to give up their autonomy. Certainly that is true, but only if TEC admits that its parishes had autonomy in the first place… which it cannot do for reasons of theological principle

Again, you insist that original autonomy is a hindrance to future hierarchical authority. There is no “theological pronciople” that requires Anglicanism to believe that all of its congregations and parishes originated fro itself. Whom planted the church in Lindisfarne? It wasn’t under Roman authority. After the Synod of Witby it came under the spiritual authority of Rome and the “English” church. The Roamn church in England absorbed the celtic Northumbrian churches. Was king Oswi not free to decide as he did? Afterward his decision became binding on him and his successors, until the Reformation.

June 28, 2:03 pm | [comment link]
47. William Witt wrote:

An interesting parallel can be found here.  In 1898, a group of Carpatho-Russians and Serbs incorporated themselves as the “Greek Catholic Church, Transfiguration of Christ” in Denver, Colorado.  They purchased property at East 47th and Logan Streets, where they are still located.

The parish was initially established as an Eastern Rite parish, with a priest who had been ordained by the Uniates in Europe.  From the beginning, the Roman Catholic bishop was hostile to the parish, cutting off their priest’s income, and attempting to close the parish.  When their priest died in 1903, the bishop attempted to impose the Latin Rite.  The parish responded by petitioning Bishop Tikhon, Bishop of the Russian Orthodox American Mission, to receive the parish into the Russian Orthodox Church, and in 1903, Holy Transfiguration became the first Orthodox Church in Colorado.

After a series of Orthodox priests, one of their priests left in 1916.  A new priest arrived, claiming to have been sent by the bishop.  He continued to function for a year until the parish discovered that he was actually a Uniate sent by the Roman Catholic bishop in an attempt to reclaim the parish.  The parish confronted the priest, giving him the option of converting to Orthodoxy or leaving.  He left and was replaced by an Orthodox priest.

With the fall of Russia to the Bolsheviks in 1918, the parish lost communication with its bishop in Russia.  Shortly afterwards, two different priests arrived, one sent by the Soviet-controlled Russian Church, one sent by the “canonical Russian Orthodox Church.”  There was a split in the parish for four years, as part followed one priest, and part another.  Matters became so confused that the parishioners of Holy Transfiguration filed a lawsuit naming every “Bishop and so called Bishop” in America and asking the court to give the Parish control of the Church property. 

Part of the parish met in a Dry Goods Store, while the rest met in the church building. At one point, the mortgage holder foreclosed the church, and the property was purchased by a member of the Dry Goods faction.  For awhile, one priest lived in the rectory, while the other priest controlled the church building.  Finally, the Soviet-sent priest managed to oust the other priest from the rectory, and bring the parish back together.  Unfortunately, he died in an automobile accident, and was replaced by a priest, who, at one point, pulled a revolver on a parishioner during an annual parish meeting.  Two priests after the death of the Soviet-sent priest, the parish returned two “canonical regularity” under the non-Soviet Russian bishop.

There are other interesting events in the history of the parish, including in 1959 a priest being deposed for “moral offenses.”  In 1964, the church building was damaged by the Platte River Flood.  In 1971, new property was purchased, but a large part of the congregation decided not to move.  In the 1970’s, it appeared that the parish might not survive.  In 1984 and 1985, the rectory and church building were remodelled and repaired.  Since the fall of communism, the parish has become the home of numerous immigrants from Eastern Europe.  In 1988, Bishop Tikhon of San Francisco raised the Church to the status of a Diocesan Cathedral, in recognition of its place as the “mother church” for the Orthodox faith in the Rocky Mountain region.

So the parish has survived for over 100 years under numerous bishops and jurisdictions.  At various times it has been uniate Roman Catholic, Russian Orthodox, Roman Catholic again, Soviet Russian Orthodox, non-Soviet Russian Orthodox. And, of course, a quick Google of “Orthodox Cathedral” and “Denver” will reveal that there is also a Greek Orthodox Cathedral in Denver as well as an Anticochian Orthodox Church and at least one parish for the Russian Orthodox Church outside of Russia.  So there is just a little bit of overlapping of diocesan boundaries here.  Sticklers for Nicene canonical orthodoxy might well ask who is the single legitimate Orthodox bishop in Denver.

During all of these many changes, the parish retained its property, and still worships in the original physical space.  Despite a quite confusing history, and loyalty to competing bishops, and numerous cases of boundary crossing, no one has suggested that the parish is actually a congregationalist church.

June 28, 3:28 pm | [comment link]
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