Alan Haley’s Detailed Analysis of the most recent Episcopal/Anglican Court decision

Posted by Kendall Harmon

Thus what the Diocese asked Judge Bellows to do is precisely what Judge Bellows did, and now the Diocese has to admit that it will have to sell some of the properties in order to pay off its debts. This is not acting prudently, or even out of a sense of fiduciary duty -- a fiduciary acts to conserve assets, and does not sacrifice them to solve troubles of one's own devising. This is more the story of the dog in the manger, only written on a truly grand scale. Nevertheless, like the proverbial dog, the Episcopal Diocese will now pretend that it really wanted that hay all along, even though it can make no use of it.

And what, in the end, has Judge Bellows accomplished? Did he uphold Virginia law and precedent? Yes, he certainly did -- once he was instructed by his superiors that the division statute did not apply to the facts of this case. But by awarding all the property to the people least able to maintain it and keep using it for church purposes, he took "neutral principles of law" to a truly Pyrrhic level. And in the process, the decision makes a mockery of all the hundreds of years of tradition which it claims to honor and uphold....

Read it all.

Filed under: * Anglican - EpiscopalEpiscopal Church (TEC)TEC ConflictsTEC Parishes* Christian Life / Church LifeParish MinistryStewardship* Culture-WatchLaw & Legal Issues

18 Comments
Posted January 17, 2012 at 5:15 am

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The URL for this article is http://www.kendallharmon.net/t19/index.php/t19/article/40692/



1. MotherViolet wrote:

The Virginia Supreme court already agreed that there had been a ‘division’ in the episcopal Church. This should mean that Bellows should recognize the CANA congregations as authentic in that they continue in some ligitemate format. Even if CANA is not a proper ‘branch’ it should mean that these new episcopal groups are recognized and their rights protected under neutral principles.

January 17, 9:03 am | [comment link]
2. Peter in Fairfax wrote:

“If the law supposes that,” said Mr. Bumble, … “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”
— Charles Dickens, Oliver Twist

January 17, 11:18 am | [comment link]
3. Archer_of_the_Forest wrote:

Yet another in the “Be Careful what you Wish For, 815, because you just might get it…”

January 17, 3:38 pm | [comment link]
4. sophy0075 wrote:

It is “dog in the manger” across the USA. TEC lacks the congregational mass to maintain the church buildings it is stolen in Connecticut, California, Georgia, Pennsylvania and elsewhere as well as in Virginia. Using the foundation monies bequested by deceased Anglicans and selling non-church properties will merely waste dollars that should be going for mission and will only postpone the inevitable. For shame!

January 17, 6:18 pm | [comment link]
5. MichaelA wrote:

“As this article painfully details, the Diocese of Virginia has stopped planting new churches, its membership has dropped by more than a quarter in just the last decade, and it had to take out a multi-million-dollar line of credit just to finance the cost of the litigation.”

It does sound like no-one in the hierarchy of Dio VA really thought about this before issuing writs…. Their situation is unlikely to improve, rather the opposite. Very sad.

January 18, 3:37 am | [comment link]
6. Cennydd13 wrote:

It’s a no-brainer that TEC is heading down the tubes, and it’ll be a major miracle if they survive.

January 18, 1:12 pm | [comment link]
7. wmresearchtrianglenc wrote:

The recent Bellows opinion reflects obvious misunderstandings and lengthy and unnecessary analysis involving matters beside the point of what entity owns property under an analysis based on neutral principles of law, and thus the decision appears vulnerable to a appellate court’s review. The misunderstandings concern the structure of TEC, the nature of and relationship to this controversy of deeds to any of the seven churches, the nature of and relationship of canons of TEC to any of the seven churches, and the lack of any necessity to consider potential issues relating to the existence of trust relationships between the diocese, TEC, and any of the seven churches.

Whether in the 1700s, 1800s, 1900s or today,, a reasonable person wishing to transfer or convey real property or personal property (a tract of land, alms basis, baptismal font, etc.) to one of the seven churches would have a reasonable expectation that the property was being transferred or conveyed for the use and benefit of that specific church and not the Diocese of Virginia or TEC, unless there was clear direction to that effect from the individual effecting the transfer or conveyance. Matters involving signage, liturgical usage, etc., are essentially peripheral matters as to what entity owns property under neutral principles of law. Further, as A.S. Haley has noted, the opinion reflects the misunderstanding of the importance of canons to the ownership issue since, importantly, TEC’s canons are binding on dioceses—the basic structural unit in TEC—where the diocese has adopted and applied them. The opinion reflects this misunderstanding in its REPEATED ordered listing: “TEC, the diocese,...”.  Again, the central issue in determining under neutral principle of law what entity owns a particular congregation’s property, isn’t what is or has been the congregation’s past or present relationship to a hierarchical denomination.

January 18, 3:15 pm | [comment link]
8. bettcee wrote:

I wonder if the leaders of this
“hierarchical” church are leading
us on a charge that could best
be described by
Alfred, Lord Tennyson.

“Forward, the Light Brigade!”
Was there a man dismay’d?
Not tho’ the soldier knew
Someone had blunder’d:
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die:
Into the valley of Death
Rode the six hundred.

January 18, 3:59 pm | [comment link]
9. Cennydd13 wrote:

There should be only ONE understanding of the law as it applies to Church properties where the parish has the deed registered in their name, and it is this:  If a parish has the deed in their possession, and if it is registered as such by a County Clerk, then that parish OWNS the property.  Pure and simple, and it should be no different than one’s ownership of his home.  It is indeed unfortunate that liberal-minded courts and judges have kowtowed to The Episcopal Church in this respect.  What is mine is MINE, and no one else’s.

January 18, 4:01 pm | [comment link]
10. NoVA Scout wrote:

Without getting entangled in whether the court accurately interpreted the deeds or the structure of the church, under the formulation advanced in comment no. 7, n instances where some members of the parish depart and some stay, how does one determine which group is “the parish”?  Is it by a plurality/majority of views on a particular topic?  Could one group “own” the property one week based on a plebescite on a particular controversy, only to “lose” ownership the following week as another majority/plurality coalesced on the next tough issue? Where are the rules governing how this plurality is determined?  Does each parish make its own rules on this subject or is the parish subject to Diocesan supervision on this point?  Does the concept apply only if the departing group affiliates with another Christian organisation? (i.e., could a large group of parishioners control property devolution if it decides to become Hindu,Buddhist or Jewish?).  I think this theory that “the parish” or “the congregation” “owns” the property needs some refinement before it could provide a working general rule for disposition of property when there are rifts between members on particular issues.  It does not, in any event, sound particularly like the structure of many of the major churches with which I am familiar.  I have acknowledged, however, that it may have some utility in these contemporary one-off churches that have no ties to any larger structure, particularly where the decision to reaffiliate is unanimous and where one doesn’t have the problem of generations of parishioners who had no view on the controversy having supported the church for decades or centuries.

January 19, 7:20 am | [comment link]
11. MichaelA wrote:

“...where some members of the parish depart and some stay, how does one determine which group is “the parish”?  Is it by a plurality/majority of views on a particular topic?  Could one group “own” the property one week based on a plebescite on a particular controversy, only to “lose” ownership the following week as another majority/plurality coalesced on the next tough issue?”

Precisely. This well illustrates a fundamental flaw in TEC’s reasoning in several disputed cases.

The parish is the parish. Its composition may change, it makes internal decisions on one issue or another (and with varying majorities), and it may even change its mind on a particular issue from one month to the next. But that doesn’t change the fact that the parish is an entity that owns the assets.

The obvious analogy is with a private company. All property is held by the company. The membership (shareholders) may change in identity and may decide different things, but that doesn’t change the identity of the company, nor its ownership of assets.

January 19, 5:49 pm | [comment link]
12. NoVA Scout wrote:

I guess my query went to how one determines what constitutes “the parish.” Is it 50% +1?  What are the procedures for detecting its collective mind?  As majorities (or pluralities, or whatever threshold one determines) come and go, does title transfer at each fluctuation?  Should the rules and procedures for determining the owning faction be stated in the governing documents of the parish or the church, or should each departing faction make up its own rules to provide itself with control? 

If the analogy is to a private company, why would one not organize the church as a private company, sell shares, and have shareholders’ meetings subject to the laws of the state corporation commission or whatever.  In fact, some of my Jewish friends have told me that synagogues are often organized on a kind of shareholder basis.  When someone leaves, he sells his ownership share. 

I keep looking for a limiting principle on this idea of property control in congregations that divide on theological issues.  As much as I’ve thought about it, I keep coming back to the old, traditional idea that if one feels compelled to leave, he should leave.  It may have some disadvantages, but it works rather elegantly.

January 19, 10:45 pm | [comment link]
13. wmresearchtrianglenc wrote:

Regardless of the aptness to a church of analogies to a business organization, it appears that within TEC at least, the vestry of a parish is probably the major defining “element” with regard to internal and legal issues. Elections for vestry members are a key factor influencing that element since individual members of a parish who are either satisfied or dissatisfied with their parish have an opportunity to deal with their view(s) by, for example, supporting a individual candidate or candidates for for vestry membership and by participating in elections for vestry members. Of course, the terms of vestry members is a factor determining whether changes may or may not occur that will satisfy a vestry member who is satisfied or even dissatisfied (to the point of wanting to leave the parish). Its certainly the case that throughout the history of TEC, parishes have changed, and will continue to change, following the election (and non-election!) of particular candidates for vestry membership. This fact has obviously been (and remains) problematical for particular members of a parish disappointed with the result or results of a vestry election or elections.

January 20, 2:26 pm | [comment link]
14. bettcee wrote:

I agree that Episcopal Church leaders do seem to be doing their best to compel conservative and orthodox parishioners to leave the church but I don’t believe that this is not a valid (or elegant) reason for anyone to leave a church.

January 21, 2:19 am | [comment link]
15. bettcee wrote:

Please excuse the typo, I should have said “I don’t believe that this is a valid (or elegant) reason for anyone to leave a church.

January 21, 2:24 am | [comment link]
16. NoVA Scout wrote:

I agree with that, no. 14.  I have never felt compelled to leave the Church, despite my discomfort with some of the activity that rattles around in it here and there.  And I have never noticed any effort by anyone to “compel conservative and orthodox parishioners to leave . . .etc,”  Most places where I have seen that happen, there appears to have been a lot of encouragement from within the departing groups to leave, not agitation by others to get them to leave.  My comment was directed very simply at those who do feel compelled to part company.

No. 13:  Of course vestries vary considerably in their performance and the perception among members as to their efficacy.  The one thing that seems certain, however, is that no vestry of the Episcopal Church could actually remove the parish from the Episcopal Church.  This seems definitionally impossible to me.  Any vestryman who would do that would seem to be acting outside his oaths and duties and would have, in effect at least, already left the Church.

January 21, 3:32 am | [comment link]
17. MichaelA wrote:

NoVA Scout,

“I guess my query went to how one determines what constitutes “the parish.” Is it 50% +1?  What are the procedures for detecting its collective mind? ... Should the rules and procedures for determining the owning faction be stated in the governing documents of the parish or the church, or should each departing faction make up its own rules to provide itself with control?”

You don’t know this, and yet you claim to have been a member of a parish that voted to disaffiliate from TEC? I suggest that next time you become a member of a parish, you take some time to become familiar with the rules for its governance. 

“As majorities (or pluralities, or whatever threshold one determines) come and go, does title transfer at each fluctuation?”

That is exactly the point - it does not. You don’t seem to understand how corporate identity works. 

“If the analogy is to a private company, why would one not organize the church as a private company, sell shares, and have shareholders’ meetings subject to the laws of the state corporation commission or whatever.”

Why would that be the case? There are many varieties of corporate bodies, not just private companies. You don’t seem to have really thought about the nature of corporate bodies at all, but the point I made applies to them all. 

“I keep looking for a limiting principle on this idea of property control in congregations that divide on theological issues.  As much as I’ve thought about it, I keep coming back to the old, traditional idea that if one feels compelled to leave, he should leave.  It may have some disadvantages, but it works rather elegantly.”

Very good point. You felt compelled to leave the congregation because you could not agree with the position of your fellow parishioners. At that point, you should leave. Your fellows, and the property of the parish, are no longer your concern.

January 21, 7:00 am | [comment link]
18. MichaelA wrote:

“Of course vestries vary considerably in their performance and the perception among members as to their efficacy.  The one thing that seems certain, however, is that no vestry of the Episcopal Church could actually remove the parish from the Episcopal Church.  This seems definitionally impossible to me.  Any vestryman who would do that would seem to be acting outside his oaths and duties and would have, in effect at least, already left the Church.”

None of this is true.

Also you appear to making basic mistakes of definition. You switch from the decision of a vestry to the decision of a vestryman without showing any sign that you understand the fundamental difference in nature between them, and you attempt to link this with “oaths and duties” in a way that is meaningless.

The reality is simply that your parish voted to disaffiliate from TEC because of the unrepentant liberal apostasy of its leaders. You were affronted by their decision because you support that liberal apostasy. You were also affronted that the Diocese of Virginia was initially prepared to negotiate with your congregation so that it could leave on an agreed basis. You applaud the way TEC stepped in to attempt to seize the property of the congregations and you are now seeking any possible way to justify TEC’s actions, regardless of whether it has a basis in law or reason. When the flaws of one of your reasons are pointed out to you, well, you’ll just look for another. We understand that.

January 21, 7:09 am | [comment link]


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