BREAKING: Court Reverses DioLA Property Decision

These churches are not about to back down. It’s on from here to the California Supreme Court.

But first, Payne & Fears will spend some time probing the defects in the appeals court decision.

This stuff is expensive.

Have any similar cases been heard by this panel in the past? I’m wondering what has changed the legal logic. Also, is there injunctive relief for the diocese? That would determine if the congregations would loose use of property immediately, pending further appeal, or if they remain in the building until appeals are exhausted.

I’m also wondering about who is on that panel of judges, and what do their previous rulings say about their legal approach. I wonder what percentage of their rulings are subsequently overturned by the Supremes.

Any CA lawyers out there to answer?

This was a sub-panel of the Court of Appeals. Maybe Bruno & Company went judge shopping. There is, I think - although I am not a lawyer, a process to have the appeal hear by the full appellate court. Or else it can be appealed to the Supreme Court. This decision is too inconsistent with previous decisions.  It makes no sense.

But then, what do I know. I prefer reason and logic over legal legerdemain.

This stuff is expensive.

And the lawyers representing TEC are willing to fight to the last dollar! The only way to stop them is to cut off the funds going to 815.

I know I’m goning to get pounced on here, but I just need to get it off my chest….

I really wish that the faithful would just walk away and leave the buildings and save the money that it is going to cost to fight this nastiness and wait on the Lord & continue to worship Him and expand His Kingdom and align ourelves with the GS and then when TEC can’t pay the bills on the buildings and the property becuase it has (and it will) die and it all (property & buildings) goes up for sale buy it back at a lower cost than what this legal battel is going to wind up costing in the long run!

I know this sounds like a cop-out, or a lay down and give up stradegy but I do ask myself what is God thinking about all this legality. It is not of Him and we are participating in it!

So let me get this straight for those of us who are literally starting with nothing and hoping to build something.  By belonging to or embracing a “hierarchiacal church denomination,” the denomination can take or appropriate at will??  No matter the existence of a separate incorporation and no matter that no contributions are made or accepted by the denomination???  Geeze, those Baptist are starting to sound more attractive everyday.

One Day Closer’s remarks remind me of Gideon.  Put out the fleece and see what happens!

What irks me in all this are the “mistruths” presented on both sides when BOTH sides say, “It’s not about the money.”

Yes…it…is…

One thing orthodox (and, for that matter less-than-orthodox) parishioners in the Episcopal Church need to understand: when they put money in a collection plate or alms bag it is funding the national church or their diocese’s suing fellow Christians.  And even if they designate their gifts for specific purposes, it may still be helping to fund such lawsuits, as it merely relieves the diocese or national church from otherwise funding that restricted purpose—i.e., freeing up money they can then use to fund these unbiblical legal actions.  People remaining in Episcopal churches where any money is going from the parish to diocese need to understand that often they are in fact the ones paying for these lawsuits.  And only when the money starts drying up will there be any incentive for dioceses to rethink this unholy strategy (it’s fair to assume 815 never will).  Are you in Virginia, or California, or Florida, or Connecticut?  This Sunday instead of putting a check in the collection plate, drop in an index card that reads, “I have this week given the $xxx that would have gone into this plate to the [choose one] Legal Defense Fund, with prayers that our diocese and the Episcopal Church will repent from its unbiblical actions—iincluding lawsuits against fellow Christians—and return to the Faith Once Delivered.”

Smuggs,
I never said “it isn’t about the money.” I know its about the money! But it pains me and many to see the money that it is going to take to fight these issues in court! I think it is bad stewardship and on the other hand I am passionate about fighting to keep what many generations of truly faithful believers in God and Scriptures have worked so hard for to build and gave loads of money for!

Well, ODC, I will not pounce on you.

The thing is disgusting. The main problem as I see it, about just walking away from the property is that the cross of Christ is left on real and tangible buildings as if the symbol only matters, with nothing behind it, unhinged as it were, if the larger eccleisial club has the property, keeps it and calls it church if it is not church. I have been supporting church, on the shoulders of those who came before for a few years and do not easily come to want to give it up. I have come closer and closer to the realization that I only have what I have with me at any time. And in the end, that might be how it goes for the tangible properties. I hope not. I am ready to walk, when called to. We still hold on with resolve for the property, symbol and meaning.

r, sv1

One Day, let me try making my statement again, rewording it a little:

Statement One:  I agree with One Day’s premise.  They should concentrate on the essentials and leave the non-essentials behind.  If it is of God, it will be blessed.

Statement Two:  People on both sides of the argument are not being honest when they say that their fight over the property is not about the money when it IS about the money.

Better stated?

Once again I think people are building an ark before the complete weather forecast is in. This appeals court verdict IS NOT the fat lady singing.  Let’s get a lawyer who is familiar with CA law to comment before we all put the floaties on! The Supreme Court of the State can decide on its own to hear this case or the parishes can bring it to the Supreme Court. (I always was a fan of the Supremes.)  Either way, it’s far from over…......

Thank you Smuggs! Isn’t it so sad that the bottom line in almost all things has to come down to the almighty $? I just hope on judgement day the Lord will forgive me for any and all participation I might have in the money funding for legal lawsuits on the defense side as I am not on the side that says….“We can sue!”

Kevin Kallsen will be so disappointed.  He said not to let anything happen while he was on vacation.  Oh well . . .

And as far as flooding goes—some of us here in North TX are putting on our floaties and looking for the ark.  It has been raining (literally) in some spots for days!

(Sorry, couldn’t resist sharing the weather report.  Back to the topic at hand . . . )

This is not particularly good news, but it’s not all bad either.  This will continue to work its way through the appellate process and this may be the case that winds up before SCOTUS.  If not this one, there will be another along before too long that will wind up before the high court.  As painful as the process is, it’s necessary ... individuals, parishes, dioceses and denominations need to know what to expect; they need to know where their property rights begin and end, and they need to understand the benefits and risks of associating with the TEC. 

Aside from the pure property aspect of it, it’s well past time for some clarification on the protections and limits of the 1st and 14th Amendments of the Constitution.  The sitting Supreme Court is perfect to decide the issue and lay down the law of the land .. this needs to happen.

Nara,

Either way, it’s far from over…......

That’s the point!

(cross-posted from T19)

Still at issue is whether the Episcopal Church validly passed an internal rule claiming to hold local church property in trust for itself, and whether that rule applied to the three local churches.

TEC may find itself in the same position as Pharoh’s army, stuck in the mud and all washed up, if the Dennis Canon is found to be invalid.  May the Lord fight for His people and make it so!

I am with One Day Closer,
I am/was a member of one of the churches still being sued in L.A. I just joined in January. After speaking with some vestry members, I come to find out that these folks had really no idea what they were getting themselves into. I am not a lawyer but am a law school grad from here in LA and I was astonished at the lack of true counsel. The only ones making money here are the defense lawyers.
The parish reserves were used and they wanted sacrificial offerings to continue paying for the suit.
On top of this, the rector has left in the middle of all this, to go teach in England. I joined the church based on my meeting with him. They’re looking for a priest. It was probably the rector who encouraged all this and now he’s gone. I am not a happy camper and won’t go back.
Who is going to step into this mess?
The money would’ve been better spent renting a hall and leaving the building. they’re throwing money down a black hole.
This is not a place where there will be evangelism any time soon, IMHO. It is a combat situation.
BTW, the church in Huntington Beach had their rector resign over an indiscretion.
These are some of the reasons why I see all this as the Continuing Church - of which I was a part briefly 20 years ago - all over again.
All the bravado just makes me sad. I am not hopeful about any real leadership.
It’s also because I don’t believe Episcopal priests know much about evangelism.

Our parish spent >$200,000 fighting our diocese for our property and lost.  I understand why we did it, but it would have been nice to have that $200k+ back today for a new building, bolder outreach, stouter mission, more vigorous support of our Rwandan ABp’s needs.  It eats at me that it was paid to lawyers instead.

We’re a wealthy parish and have been thriving since our eviction, so I don’t want to seem like a Marie Antoinette here, but I think these parishes would be better-served to hang these buildings around Bruno’s neck like an albatross.  Who’s he going to put in them…does he have a throng of wannabe Piskies waiting in the wings?  Not too likely.

I don’t know what if flowing more hardily, the rain in North Texas or my tears.  This is one of the saddest pieces of news I’ve heard.

http://picayune.uclick.com/comics/crspe/2007/crspe070626.gif
Or possibly Ecclesiastes 10:19 ?  I hate to be a cynic, but naivete is deadly.  Let’s pray!

I feel the urge to stand up for the legal profession with more of the standard “don’t shoot the messenger!” lines and wax eloquent about what I feel is a noble pursuit.  But instead, I’ll put my money where my mouth is and pledge to offer to do pro bono work for orthodox Anglicans if this sort of thing happens in Texas or Arkansas in upcoming years.

Jeffersonian says:

...but I think these parishes would be better-served to hang these buildings around Bruno’s neck like an albatross.

You’re kidding, right?  If he bulldozes the properties and sells the land (God knows they won’t need them for worshippers—there aren’t any) he has enough money to keep the diocese running well into the 23rd century on the interest from the capital alone—this is LA/Orange County land you’re talking about!  He wouldn’t need any churches to fund the diocese.  He could have his own little kingdom, he and Sergio and Bob…  (Bound to be a coup sooner or later, ‘tho…)

I feel the urge to stand up for the legal profession with more of the standard “don’t shoot the messenger!” lines and wax eloquent about what I feel is a noble pursuit.  But instead, I’ll put my money where my mouth is and pledge to offer to do pro bono work for orthodox Anglicans if this sort of thing happens in Texas or Arkansas in upcoming years.

Me too!

And I do think it’s a noble pursuit and dont mind standing up and shouting it.  If you want to get involved in pro bono work in this area in Texas, check out http://libertylegal.org/ if you havent already.

There’s a legal defense fund for ADV for the CANA parishes in Virginia.

How about a legal defense fund for the churches in California too so that the case can be appealed up to the California Supreme Court?

I don’t understand what the phrase “the gay agenda” is supposed to mean in this context.  I think we’ve already established that (a) this is about much more than that for you and much less than that for 815, and (b) “the gay agenda” in terms of secular gay rights has little to do with sexuality and ordination (and Don Armstrong, who supports the former but opposes the latter, is proof of concept). 

Cheers,

TH

MarkTXK and this_day, at least one of your noble compatriots in LA County is doing the same for two of the churches involved.  They (the churches) are basically covering her expenses and some small remuneration.
Clearly, you all give the lie to Dick the Butcher in Henry VI.  Proud to fellowship with y’all.

I like what Jan Nunley had to say recently: try that with the National Parks System, for example, and see how far you get taking your share of Yellowstone. Why? Because the National Parks are held in trust by the Federal Government for all Americans. And when you pay your fee, you get to use the Park—subject to certain restrictions designed to protect it for future users. And you don’t get to take pieces of it home for your kids. Because your neighbor has a right to expect that it will be there next week when she goes on vacation with her kids.

There’s no problem, of course, as long as you abide by these agreed-upon rules of civil society, or if you don’t like them, lawfully try to get them changed. But if you fail to get others to agree with you and then try to create “facts on the ground” by changing the locks on the clubhouse…you really shouldn’t be surprised if the rest of the members take exception to your actions.

Source: http://episcopalchurch.typepad.com/episcope/2007/06/control-issues.html

I don’t agree with Jan’s analogy, but that is quite possibly not only the most compelling, but also the funniest description of the institutionalist left point of view I have ever read.  Props to her.

The reason I don’t agree with the analogy, however, is because we don’t administer our own little parts of Yellowstone, and if we did, we would obviously have more clout if we wanted to take our pieces and leave.  If you look at the Secretary of State’s incorporation database, for example, there is not one Diocese of Mississippi with X-and-such number of pieces of property, but rather a group of autonomously organized churches operating under diocesan authority.

In order to enforce a non-confederation model of church ownership, the government has to accept the argument that the diocese has binding legal power over the church.  This means that theology can play no role, non-contractual promises can play no role, and so forth.  If the government says that churches can’t leave dioceses because dioceses have ecclesiological authority, then the government is violating the establishment clause by using ecclesiology as a basis for resolving property disputes.  Only the secular contract language applies.

But I sincerely hope that the phrase “the gay agenda” is dropped.  Every time a reasserter refers to this disagreement in terms of “the gay agenda,” this becomes closer to the mainstream culture war gay rights dispute, and that’s not really what this seems to be about from my vantage point at all.  There was a time when I believed it was (which was why I was an Integrity officer), and outside of the Woodliffs I’d say that Greg was probably the person on the reasserters’ side of the fence who was most responsible for curing me of that perception.

Cheers,

TH

In response to the question about the court and the judges:  This decision was filed in the Fourth District, Division Three Court of Appeal (Orange County) which hears appeals of decisions rendered by the Orange County Superior Court. Each case before a California Court of Appeal is heard by a three judge panel. The parties have 15 days from the date a decision is filed to file for rehearing before that same panel. Rehearing en banc is available from a decision of the federal Ninth Circuit Court of Appeals not from a decision of a state Court of Appeal. The lengthy opinion in this case was authored by Presiding Justice David G. Sills, who was joined in the unanimous opinion by Associate Justices Richard D. Fybel and Eileen C. Moore.  The text of the opinion and biographical information about the judges is available on the court’s Website at link

So I;m hoping that whatever new Anglican structure is created to provide oversight to orthodox parishes, that a rule, a law or decree can be made by this new structure that local congregations OWN and have title to local property.  If not, why bother…???

I know this sounds like a cop-out,

One day closer

Not a cop-out…reasonable, rational and logical thinking.

But I sincerely hope that the phrase “the gay agenda” is dropped.

Since we’re sincerely hoping for things, I sincerely hope that the word “theocracy” is dropped.

I like what Jan Nunley had to say recently:...

A poor analogy on Jan’s part.  If the federal government endeavors to take property that I, or I along with others, have procured, improved and maintained it must pay me its fair market value before it can exercise a trust over it.  By the same token, a unilateral declaration of trust by TEC over property, sans consideration, seems to me to have as much force, morally and legally, as would my declaration that, should you post again here John, I shall assume title of your car.

You’re kidding, right?  If he bulldozes the properties and sells the land (God knows they won’t need them for worshippers—there aren’t any) he has enough money to keep the diocese running well into the 23rd century on the interest from the capital alone—this is LA/Orange County land you’re talking about!

I understand that, but the albatross around Bruno’s neck will be more than financial.  He will have empty, abandoned churches that testify daily to the emptiness of TEC’s message, the bankruptcy of its theology.  Sure, he can bulldoze them, but to do so admits defeat, admits that the only means of survival for TEC is cannibalism.

Jeffersonian writes: 

I understand that, but the albatross around Bruno’s neck will be more than financial.  He will have empty, abandoned churches that testify daily to the emptiness of TEC’s message, the bankruptcy of its theology.

I’m having difficulty reconciling Jeffersonian’s comment with what I read earlier about ++Bruno on another thread:

“Thank God for the Godly Bishop Bruno of the Diocese of Los Angeles and his interest in promoting honesty, justice and the saving of ALL human beings from outcasting, demoralization and righteous religious extremists who promote crimes of hate.”

May God bless all the faithful people in the LA Anglican churches and continue to give them wisdom at this extremely difficult time.  I am very sad about this chapter, but it is not the final one. May they prevail at the next level, but if not, join with those of us who are starting over with nothing, aware that we have everything we need to be a family of faith serving the One true Lord.

We must remember that even if all the lawyers give their services for free, there are tremendous costs for any action, such as court reporters, printing depositions, maybe paying witness and experts and on and on.  Truly, justice is for those who can afford it.  In any conflict, we must count the costs.  As the Lord said, sometimes after getting the count of the enemy, it may be wise to sue for peace.  “Or what king, going to make war against another king, sitteth not down first, and consulteth whether he be able with ten thousand to meet him that cometh against him with twenty thousand? Or else, while the other is yet a great way off, he sendeth an ambassage, and desireth conditions of peace.”  Luke 14:31-32.  So since we live in a material universe, I guess in the end it is all about the money.  Before any revolution you must count your ballots or your bullets!  or your money.  Hope the good guys win and it be worth it.  IMHO

“Thank God for the Godly Bishop Bruno of the Diocese of Los Angeles and his interest in promoting honesty, justice and the saving of ALL human beings from outcasting, demoralization and righteous religious extremists who promote crimes of hate.”

Some good red meat, but it don’t put butts in the pews, amigo.  Once the revisionist euphoria subsides, once the ringers from other dwindling parishes filter back to them after going to these three purloined buildings, it will dawn on them that they have three edifices that might as well be warehouses.  Then the real fun starts.

BettyLee, thank you for that blessing—we all need it.  And, if we must begin again, it is good to have examples like yours to follow. 
Jeffersonian, there is a vindictive part of me that wants to see that kind of “real fun”.  Then I think of a WWII vet whose beloved bride and pillar of the church is in repose in a columbarium, and whose memorial fund pays for maintenance to the church building…

Truth Unites and Divides writes:

Since we’re sincerely hoping for things, I sincerely hope that the word “theocracy” is dropped.

You haven’t seen me using it, except to refer to actual theocracies (like, say, Iran). 

In fact, I just did a search for the word in my civil liberties site.  Six matches (out of 1,170 pages).  Three references to Iran, one reference to Afghanistan, one reference to North Korea, and a tiny snark from eight months ago that began “If you’re worried that the United States is importing theocracy faster than it’s exporting democracy…,” which was not even a statement that the United States is, in fact, importing theocracy, much less that it already has.

I obviously can’t stop other people from overusing the word “theocracy,” but I’ll be much more helpful at stopping people from overusing the word “homophobia” if the blogs they’re referring to don’t make so many references to “the gay agenda”...  ;o)

And may I add that every time someone on this board says “We are Ugandan,” my heart swells a little bit.  THAT’S a beautiful story, my friends, and a much better one than the tired old “fighting the gay agenda” warhorse.

Cheers,

TH,
a proud supporter of the gay agenda,
a proud supporter of churches of the Global South,
and strongly opposed to treating conservative Episcopalians like dirt.

Slightly off topic, but our Diocese north of the border is running into problems selling off properties, because they are designate heritage buildings. A significant portion of church buildings were thus declared and the use restrictions on those propertys significantly devalue them. Bulldozing the buildings would entail a whopping fine, so the usual tactic is to leave them unmaintained until they fall down. This still costs money in insurance, minimal heating etc.

Heritage churches are usually sold to more vibrant congregations. Non heritage buildings, esp in Toronto or Vancouver, would be torn down immediately.

Jeffersonian writes: 

Once the revisionist euphoria subsides, once the ringers from other dwindling parishes filter back to them after going to these three purloined buildings, it will dawn on them that they have three edifices that might as well be warehouses.  Then the real fun starts.

Jeffersonian, do you mean something similar to what happened here?

http://www.virtueonline.org/portal/modules/news/article.php?storyid=6213

Re: “try that with the National Parks System, for example, and see how far you get taking your share of Yellowstone. Why?  Because the National Parks are held in trust by the Federal Government for all Americans. And when you pay your fee, you get to use the Park—subject to certain restrictions designed to protect it for future users. And you don’t get to take pieces of it home”

This has to be the most idiotic comment I have ever read on this subject.  The Federal Government doesn’t own the national parks in trust.  It owns them, period.  It could build a toxic waste incinerator in the middle of Yellowstone if it wanted to.

Moreover, she got her attempted analogy backwards.  No one is claiming that the national church owns property in trust for local parishes.  To draw the proper analogy in this (silly) example, if the Federal Government wanted to take my farm, which I own in my name, for a national park, it would have to pay me just compensation.  It’s in the constitution.  Look it up.

If this is the church where people don’t have to check their brains at the door, why do so many do it anyway?

But I sincerely hope that the phrase “the gay agenda” is dropped.

TH, I went to Wikipedia to look up “gay agenda”.  Here’s a snippet:

(1)  James Dobson describes it thusly:  Those goals include universal acceptance of the gay lifestyle, discrediting of scriptures that condemn homosexuality, muzzling of the clergy and Christian media, granting of special privileges and rights in the law, overturning laws prohibiting pedophilia, indoctrinating children and future generations through public education, and securing all the legal benefits of marriage for any two or more people who claim to have homosexual tendencies.

(2)  Sears and Osten describes it thusly:  It is an agenda that they basically set in the late 1980s, in a book called ‘After the Ball,’ where they laid out a six-point plan for how they could transform the beliefs of ordinary Americans with regard to homosexual behavior — in a decade-long time frame…. They admit it privately, but they will not say that publicly. In their private publications, homosexual activists make it very clear that there is an agenda. The six-point agenda that they laid out in 1989 was explicit: Talk about gays and gayness as loudly and as often as possible… Portray gays as victims, not as aggressive challengers… Give homosexual protectors a just cause… Make gays look good… Make the victimizers look bad… Get funds from corporate America.

TH, are these descriptions a straw-man caricature of the “gay agenda” as much as the straw-man caricatures of a “religious right theocracy”?

Jesus weeps…

Intercessor

Truth United and Divides, I wish you would stop giving me opportunities to plug material on my own site because I am beginning to feel like a troller, but this is the “gay agenda” as far as I’m concerned.  I obviously can’t define it for Mr. Dobson or Sears and Ogden.

Cheers,

TH

Only the final California appellete decision counts. However, this is a blow.

Decisions whether to fight for property differ by state, level of congregational support, location and resources.  A church with supportive state law, good counsel, overwhelming congregational support, and a prime location for growth may discern God’s call to fight for the property.  Falls Church and Truro seem to fall in that catagory, although because they have smart leaders I am sure they will continue to monitor the situation and change course if circumstances change.  Parishes with fewer positive factors would be better off saving the legal fees and using this an opportunity to plant a new church in a growth location.

Many of the largest, most vibrant churches in the US weren’t even in existence thirty years ago. Over the long run, hanging on to old property may be the least important element in the survival of an orthodox Anglican presence in the US.  It is much more important to have dynamic leaders, preaching a clear message, with an energized flock that has gotten off it rear end and is willing to go door to door spreading the gospel and inviting people to church.

Sometimes (but not always), those pushing a hard line in the property wars are the ones with the least real time courtroom experience in these types of fights. 

If a parishioner’s willingness to leave TEC is contigent on keeping his or her property, then he or she is leaving for the wrong reason.

First of all I feel badly for these local churches and I will pray for them.
But it’s certain that this will be appealed and if TEC is lucky the case will get thrown out again on the original grounds and the damage will be limited to California.
If this thing somehow gets into the federal courts it will go to SCOTUS and they will set a precedent which will chill TEC to the bones. It’s clear that TEC effectively passed a religious ruling, the Denis Canon, to effect civil law, the transfer of property. If they believed there was any legal standing for what they claim then the Denis Canon would have been unnecessary. Considering where SCOTUS has been going over the past decades with “neutral principles”, and where many states like CA have been following, the only logical end to these cases is that if a church wishes to claim ownership of property, which is solely a civil matter, they should be required to follow civil rules, such as changing the name on the title, to effect civil results.  If the Denis Canon gets thrown out even at the state supreme level then you may even see “liberal” churches asserting their property rights over TEC to insure they can leave if things change.
TEC may be winning battles on the ground but their Gettysburg is there on the horizon, one wonders if they can still avoid it. There is no winning this “war” for TEC but they can avoid losing if they just stop to consider the carnage.

Rocks writes:

If this thing somehow gets into the federal courts it will go to SCOTUS and they will set a precedent which will chill TEC to the bones. It’s clear that TEC effectively passed a religious ruling, the Denis Canon, to effect civil law, the transfer of property. If they believed there was any legal standing for what they claim then the Denis Canon would have been unnecessary.

This is exactly right, based on my limited understanding of the facts of the situation.  Right or wrong, the Denis Canon cannot be enforced by state law because it is an ecclesiological doctrine.

Cheers,

TH

Thanks to whoever posted the link to the decision.  I think this is bad law and bad reasoning—typical of what we see in church property ligitation, the opinion is internally flawed & I do hope the parishes continue to fight the good fight.  I dont think this decision will stand.

As I said on T19—

On page 4, the Court deals with the statute that was enacted after the Baker line of cases —the statute conflicts with Baker unless a ‘general church’ has a ‘governing instrument’ that ‘expressly’ provides for a trust against local church property in favor of the general church.  The court then makes the conclusory statement that TEC does have a governing instrument expressely providing for such a trust & therefore determines that the statute does not present a conflict that they have to address. [exactly the opposite of what the lower court found]

To come to such a conclusion, however, the Court is rewriting California trust law.  The Dennis Canon is not a valid trust under California law because there is no express grant by the legal and beneficial owner of the property… yet, the appellate court just validated such a trust.  That is a complete departure from state law and from California supreme court decisions on the issue.

I think the appellate court interpreted the statute incorrectly and in the opposite way in which the statute was intended.  Anyway, the legal discussion is technical and tedious.  My point is I think there is certainly grounds for appeal, and since the court applied statutory law in direct contravention of state supreme court precedent, it is likely the kind of case that the state supremes would accept.  In that event, I wouldnt bet on this decision being upheld ... at least not that part of it.

Jeffersonian, do you mean something similar to what happened here?

Precisely…it’s Galt’s Gulch in vestments.

I know I’m not the brightest duck in the pond but….What is Galt’s Gulch?

I wish you would stop giving me opportunities to plug material on my own site because I am beginning to feel like a troller, but this is the “gay agenda” as far as I’m concerned.  I obviously can’t define it for Mr. Dobson or Sears and Ogden.

TH, there’s no need to feel like a troller.  I, for one, don’t regard you as a troll.  I also have no problems with you plugging your own site.  If you don’t, who will?

Obviously there will be differing definitions of words, phrases, concepts, and doctrines.  At least now you’re aware of what some people mean by “gay agenda” when they use the phrase.

Although we stand on different sides of the gay marriage issue, you have the clear advantage:  You’re an activist; I’m not.

Pax in Christ.

I hope the Virginia churches now start pooling their money into a building fund and helping their brothers and sisters in Nigeria , many of whom live in dreadful poverty.

Faith continuity is so more important than ” bricks and mortar” continuity.

I ask your prayers for the parishes involved, our vestries, staffs, and the attorneys.  (Two lead attorneys are members.)  It has always been our desire to follow Jesus as the only Source of our salvation and stand firm for the Authority of Holy Scriptures.  We were willing to walk away from our properties….and are still if that is God’s desire.  We need to discern His will in this.  Our 5 church plants in Orange, Los Angeles, Santa Barbara and San Bernardino Counties are composed of people who have left their buildings to start anew.  Right now I look somewhat with envy at their freedom to do God’s work unencumbered by the continued battle for our property.  But even if we lose in the court, we will have won in God’s Kingdom.  Jon Bruno cannot take that away from us!  The battle is the Lord’s, and it is our prayer that God will allow us to keep that which we have built and hold legal Title.  But we join with the hymn writer and say, “Lead on, O King Eternal….thy tents shall be our home.”

I agree with both ODC and LA Anglican: Let them have the property, AND we Episcopalians wouldn’t know what “evangelism” was if it bit us—-but we must learn now. One greater than we said, “Tear down this structure, and I will build it back in a day.”

Let them have the buildings—-they won’t be able to keep them, because they have left the Rock—-and go and build God’s Church! Hallelelujah! He is risen (and continues to do so). Thanks be to God!

Don

I am reminded that obedience to the Father led Jesus to the cross.  Why are we surprised then or bewildered when our own journey encounters hardship?  It seems that this is partly God’s method.  That He says concerning men like Paul, “I will show him how great things he must suffer for my sake.” 

May we not affirm that the supreme example and proof of this is seen in our Lord, who without distrust or rebellion went uncomplaining to the cross?  Is there anywhere so strong and impressive a Christian evidence as is to be found in trial or suffering or loss bravely and trustfully borne, a heavy cross cheerfully carried, irritation patiently endured?  It has pleased God by this means to put to silence the scoff and the sneer, to touch and turn the hearts of people….not of the sufferers, but of those who saw them. 

May God be glorified in what do.

Let us drop the “go quietly into the good night” defeatism. READ Sarah’s book. This a war between parties who have diametrically opposed outlooks on the church. A battle has been lost. The liberal usurpers have lost battles in the past 30 years, but they continued the fight as we must, too. The fight for the church is worth taking it to the very end. Send letters. Talk about it locally. And it is going to take money. Where do I send donations?

Lawyers, is it not true that in a church split, the hierarchal business goes out the window? Is 5 dioceses declaring separation good evidence for a split?

rob-roy:
Whether a church is categorized as hierarchical and whether or not it matters is entirely an issue of state law.  It will vary from jurisdiction to jurisdiction.  Virginia is the only state I’ve heard of that has a church split statute.

Some states make determinations based on legal title, property and trust law; other states tend to defer to the national church on virtually every issue, even where there’s indication of fraud or capriciousness on the part of the national church.  Some jurisdictions say they’re applying neutral principles of law when, in fact, they apply a deference approach; other jurisdictions say they’re defering to a hierarchy when, in fact, they engage in a neutral principles analysis.

Like we just saw in California, most jurisdictions reverse themselves, refuse to follow precedent or misapply precedent altogether.  What results is a hodgepodge of jurisprudence and it’s really anyone’s guess how any particular case will come down.  This is why it’s important for the higher courts to get involved and lay down some decent law

This verse from Isaiah 59, vs 4 covers the situation adequately..“No man sues with just cause, no man goes honestly to law; all trust in empty words, all tell lies, conceive mischief and give birth to trouble”

All,

I haven’t read the decision yet (I will imminently), but here’s one thought to consider for those advocating giving up the property:  for some large parishes (and perhaps some small ones, too) now involved in litigation or under threat, the costs of litigation, while substantial, pale in comparison to the costs of acquiring new land and building equivalent facilities to what they currently maintain.  For example, at Truro, the estimated costs of “starting over” are somewhere around $20 million, while the estimated costs of litigation are a “mere” $1 million.  Purely as a matter of fiscal responsibility, the litigation option bears some consideration.

Property Issues Pro and Con:

Pro:
(1)  God’s the Vineyard Owner.  Local Parish is His Designated Trustee (spiritually).  Local Parish paid and maintained property.  If someone steals the local vineyard property, wouldn’t the Owner be displeased with the Designated Trustee?
(2)  Potential harm to new families moving to the local community.  See the nice building.  They go check it out and are exposed to a false gospel.
(3)  If you give up, it discourages other parishes, rectors, vestries, and congregations from standing firm.
(4)  If you give up, it emboldens the revisionists Even More to do more inappropriate property taking.  It further ingrains their belief that Might makes Right.
(5)  If you love the revisionists, you must contend for the property.  If they gain acceptance of the property, then they’ll probably be forever convinced that they’re in the right.  They won!  They’ll believe that God rewards their “faithfulness” by awarding them the property.
(6)  As Jeff in CA says, the litigation prospect might actually be a better stewardship option!

Cons:
(1)  Totally distracts from the Gospel message.  Huge resource drain.  Legal battles siphon away evangelism efforts and discipling efforts.
(2)  Exhaustion.
(3)  Very Bad Witness.  Fallen, disbelieving world sees Christians fighting each other.  Says we don’t want that.  Fallen world has no interest in discerning responsibility and blame.

These are quick, early-morning thoughts.  Either way, in the short-term whether parishes/dioceses contend legally for the property or walk away from the property….  Satan will benefit and the Enemy will laugh and cackle.  The Perverter set it up where he can’t lose…. in the short-term.

Let’s all pray for our faithful brothers and sisters who are wrestling with the spiritual, physical, psychological, historical, and financial decision of whether to retain God’s propery or contend for God’s property.  It’s not an easy decision, and either way they decide they’ll need our prayers.

Thankfully God wins in the end!  Pax in Christ alone.

Truth Unites, thanks for the very helpful and thorough run-through of the competing interests a parish under legal heat faces.  I think it gives the lie to quick answers or claims of exclusive rectitude on either side.  I don’t envy the parishes faced with such choices.

Those who advocate “giving up” should realize that if they move on to conservative havens, the homosexual usurpers will not rest on their laurels. Those havens will be in their sights after they have taken this hill. Other denominations should also take heed. The orthodox both within the TEc and without such as the CANA folks fighting the usurpers are on the battle frontline. Albert Mohler understands this.

I know I’m not the brightest duck in the pond but….What is Galt’s Gulch?

Oh, sorry.  It a literary reference to Ayn Rand’s “Atlas Shrugged.”  In the book, the confiscatory state has advanced to the point that no one is safe from its predations, and all work at the pleasure of bureaucrats who operate on an ethic not appreciably different from that of modern-day 815.  Naturally, the mailed fist of legal power is ever-present in the velvet glove of compassion and reconciliation.

Eventually, the productive and inventive in the book decide to remove themselves from society and form a temporary community founded by a man named John Galt, hence “Galt’s Gulch.”  There they wait for the inevitable collapse of the looting-based society and their opportunity to pick up the pieces.

To TUaD’s list I would add:

Pro:
..(7) If you give up, you leave behind the gravesites, columbarium, and interment rose garden of the loved ones that you thought would be buried on the grounds of your home church.

What are you talking about - the ‘homosexual usurpers’? As if the majority of liberal Christians are gay or lesbian, which of course, they are not.

Notwithstanding the concern for gravesites I mentioned above, I must also add the following caveat, perhaps as a “con” to TUaD’s list:

Con:
...(4) Money spent so far is NEVER a good business reason to spend more money on a continuing project (such as, even, a lawsuit). At each step, one must write off all the money invested and ask the question: “From this point forward, will the money and energy and distraction required to continue to the end be worth the expected reward?”

A decisive factor for these California churches may be the fact that they are in the vanguard of penetration of the legal thicket. The results that they obtain (or do not obtain) will have a profound impact on all other churches entering or contemplating a property contest under law.

Jeffersonian,
Thank you for helping me to turn on a lamp of light! Having never read the book your explaination is most helpful and some understanding now resides.

FHS
ODC

MM,
You are right they are not, but the ones that are not support the ones that are and think that blessing that life-style is Godly of whch it is not!

I am sick and tired of this dead, apostate body and its tenetacles (the diosceses) taking the property of orthodox parishes, especially in this instance. If I were the rector of one of these three parishes, I would call a press conference to announce that I will burn down the building and sow the property with salt before I let the diocese take it away from us. Make no mistake, this is war, and the sooner we demonstrate the full measure of our resolve, the sooner the cowardice of the 815 crown will be exposed and perhaps we will be allowed to go in peace to establish a true Anglican province in America, instead of the psuedo-church the attempts and fails to make that claim.

p.s. I am venting right now and I my comments are out of bounds, my apologizes; but I think I am saying what some might be thinking.

These churches, and any churches struggling with legal bills, should consider contacting the local Christian Legal Society and/or bar regarding whether attorneys would be willing to donate pro bono time to help out.  Most major corporate firms give all attorneys about a 50-hour budget of time to donate their legal services and get credit for the work—in fact, some actually require it. 

A church could find top-drawer legal talent to help write a brief without charge if it looks carefully.  I guarantee there are a lot of attorneys who would love to get credit for doing something they believe in and which is more interesting than the normal litigation drudgery.  50 hours of legal time even at the low rate of $300 per hour (lower level partner or upper level associate) is $15,000.  Get a handful of attorneys to take the project on and you could easily get those briefs written (with oversight from the retained law firm) for pennies on the dollar.  Harassment by the diocese and the bottomless pockets of 815 certainly qualifies as an appropriate use of pro bono time.

Regarding taking these cases to the Supreme Court of the United States, I am not currently under the impression that a favorable verdict would result.  Five Lawrence v. Texas justices are still on the bench who would love the opportunity to strike another win for the homosexual agenda (Justices Ginsburg, Breyer, Stevens, and Souter).  The swing vote in this case would be Justice Kennedy, who also voted in the Lawrence majority (the case that struck down sodomy laws).  Justice Kennedy, further, is pretty deferential to established institutions and to stasis in general (i.e., let TEC have its way) and is fairly friendly to Establishment Clause challenges.

If the case turns on whether TEC has a stated interest in the deed to the property (it seems that one or more of these churches have a separately incorporated entity, which is unusual for TEC parishes), then that is really a matter of state real property law that the SCOTUS will not touch.

ProfJohn, try decaf! 

TEC’s litigation strategy is shameful and sinful, and a matter in which God will have the last word.  However, I said above, the fight over property is not determinative of the future of a faithful Anglican Province and if waged inprudently can be a detriment.

Get the right leadership, sense of evangelism (with the right tools) and a clear message and we can build all the buildings needed.

Let us drop the “go quietly into the good night” defeatism. READ Sarah’s book. This a war between parties who have diametrically opposed outlooks on the church. A battle has been lost. The liberal usurpers have lost battles in the past 30 years, but they continued the fight as we must, too. The fight for the church is worth taking it to the very end. Send letters. Talk about it locally. And it is going to take money. Where do I send donations?

Let me echo strong support for Dr. RobRoy’s comment above.  And I humbly suggest that the proprietors of this outstanding blog send free copies of Sarah’s book to the embattled parishes in California (and elsewhere) so that they may be aware of their role within the larger scheme of things.

Stand Firm in Faith!

Matthew 5:40
  And if anyone would sue you and take your tunic, let him have your cloak as well.

These are Jesus’ words….not Paul’s, not Peter’s, not mine!

Well said, One Day.

Amen to going to the words of Christ.

Rocks & TH,

Sorry to say that you are way off on US Supreme Court case law and the Dennis Canon.  The last SCOTUS decision was Jones v. Wolf, in 1979, the one that prompted the adoption of the Dennis Canon.  The Court there said:

At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal.  And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

Also, neutral principles are optional, not required.

provided it is in some legally cognizable form.

There’s the rub.  In many jurisdictions there is nothing legally cognizable about an entity granting itself a property interest unilaterally when it doesnt own the property.

And if someone wants to sue you and take your tunic, let him have your cloak as well.  (Matt 5:40)

The tunic was a shirt, the garment worn closest to the body. On top of that you wore a cloak which was almost like a blanket. In our day, you might sue someone’s pants off. But in Jesus’ day they didn’t wear pants. So Jewish law permitted a person to sue someone for their shirt.

The cloak was actually protected by law. It could not be taken away.

The lawsuit in this verse might be a legitimate case, but I think there is also an overtone in this passage that suggests that it might even be an unfair settlement. Once again, the idea is NOT that a Christian is some wimp, that if you get unjustly sued that you shouldn’t put on a defense or you should automatically give the plaintiff all he’s asking for and more. The idea is again that we shouldn’t try to get even. Don’t counter-sue to get them back and make them pay. Instead, be generous with what you own. Hold on to your possessions loosely. So loosely that you’re willing to give them up if the only way to hang onto them is to fight for them, stooping to the same level as the one who is cheating you.

In other words,

Be kind and generous even when…
Someone unjustly cheats you out of your property

If you’re in the wrong, make a generous settlement.  And if you’re NOT in the wrong, put on a defense, but don’t try to get revenge. Don’t hold so tightly to what you own that it prevents you from making peace. In 1 Corinthians 6:7, Paul says, “The very fact that you have lawsuits among you means you have been completely defeated already. Why not rather be wronged? Why not rather be cheated?”

From:  http://www.bible.org/page.php?page_id=3111

DavidH:

And the civil courts will be bound to give effect to the result indicated by the parties

Some commentators have also argued this phrase means that (in accordance with normal principles of trust law) there would have to be some indication by both parties (not just the general church) of intent to create a trust.

A few thought on this situation:

1. I work in the field of legal education and it is my considered opinion after reading lots of court decisions, that the most important policy type decisions involve the judges deciding the case based on their personal opinions, and only then finding law and fact to buttress their pre-judged decisions.  I know that this is considered serious heresy amongst legal types, but I am sorry folks, that’s the way of it.  Having said that, I would guess that Reason and Revelation is probably correct as to how SCOTUS would decide, and DavidH’s analysis is correct also.

2. So, yes, fight the legal fight, but we shouldn’t be surprised if we lose.  But you never know, you might win if the judge likes you.  In California, the appellate courts have been going all one way for the last decade and a half, without any objection from the Supreme Court, and now suddenly this appellate court comes down with this decision.  But we have no idea what the Supreme Court will do.

3. I am convinced that TEC - both conservative and liberal - has long been guilty of the sin of Pride.  Pride in fancy buildings, pride in fancy vestments, pride in church choirs and music.  I believe that part of the current crisis in TEC is God’s humiliation of an overly proud church.  Part of the church is being pruned for better growth in the future (orthodox) while part is being allowed to die off (liberals).

4. I have been around TEC a lot over the last decade, and I have seen that in many cases a church’s property is the millstone around its neck.  There are a lot of parishes that exist to serve their building, and their building is their primary identity.  For example, I was at a small parish that was very committed to its building.  I soon realized that if this parish was to grow at all, it would need to leave its building, but I also knew it never would.  And so it continued to wither on the vine.  I could repeat this story many times.  Growth often requires moving from an old building.

5. A parish that is forced to leave its building and start anew, is a parish that will need to become growth and mission-focused, and one for which planting a new church will be much easier in the future.

6. TEC will be left with near empty buildings, aging parishioners, churches that are financially unfeasible.  Sure they will close up and sell off a lot of property and get rich, but what will they become?  A small, boutique church that is dedicated to a small but extremely wealthy, highly self-centered, shrinking demographic that is becoming increasingly hostile to religion.  The money won’t last forever.

7. I have heard several Global South bishops speak, and while there is no doubt about their unswerving support for the orthodox here, I am guessing that they are somewhat puzzled and exasperated by Western materialism and dedication to property.  These are bishops who know that the church is people and not buildings.  These are bishops who lose their churches to Muslim mobs.  These are bishops who realize that buildings exist to serve the growth and ministry of the church, not that ministry in the Church exists to service buildings.

Excellent analysis JamesW!  I am heartened by the fact that there is principled discussion by biblical Anglicans about whether to contend for church property or not. 

I would be greatly surprised if there was any principled discussion by the revisionist wing of TEc about the possibility of giving the property to the local parishes.

Thank you James W! Well written and thought out!

However, I still contend that suing and counter suing is un-Christian like and something that “I personally” feel is not what God would want us doing or being in engaged in. Tunic or cloak or property or whatever…. the bottom line is the act…........the act of suing! There is no good will in it on either side and it is a very negative and evil act!

The TEC has sued vestries and rectors. The personal hardship and cost is enormous. These are ordinary folks who have never been sued before and they are shell-shocked.  It is also a very negative situation week in and week out for many parishioners who we all know are not spring chickens and many on fixed incomes asked periodically to add to the defense pot.
And it will go on against a wealthy national church. These people are not martyrs.
Bravado as to examples for other churches is not very useful.
These are only structures.
The rah rah is very tiresome.

jamesw, spot-on, as per usual.  Pride always goeth before the fall, too.    And until people start to realize that, they’ll never know how to combat it, either in others or in themselves. 

Blessings,

O.

ODC, I hear ya’.  Lawsuits are ugly.  War is ugly.  Spiritual warfare is ugly.  Aspects of it can be “very negative and an evil act.”

But there are times when you must engage in it, tip-toeing along the precipice and praying that the Holy Spirit doesn’t let you fall, because the Alternative is Worse.

The Price of Peace can be so unthinkably high that War becomes the better decision and course of action.

I cannot say whether the parishes in California (or anywhere else) should pursue legal efforts to retain the church properties or not, but “my personal feelings” are that they should NOT eliminate and dismiss the option of pursuing legal recourse as quickly as you seem to want to do.

Another thing. We have people here that are yelling for the good fight who are no longer Episcopalians.
I keep hearing about the gay agenda but have never seen it in practice in any TEC church I have ever been in on three coasts. I have never even seen a known gay person in church and you know where I live and I headed the diocesan men’s ministry for the international Anglican men’s ministry here for six years and was in charge of all 140 parishes. Oh, sure, at the Diocesan Convention there were gay people and gay priests (nobody seems to have yelled about gay priests until Robinson) I don’t know their sex lives.  I have never heard an unorthodox word from any pulpit nor in any Bible class or in any diocesan ministry meeting including LA.
Sure, I guess in West Hollywood and places like Pasadena, it’s there.
But that’s not where I’m at.
And in the Ugandan church I was in - was in - I didn’t see anything remotely different from what I was accustomed - including poor attendance at Bible study. And no known outreach evangelism in the area - Africa, sure. LA, never saw it.
In fact, the TEC parish I left had so many more ministries it wasn’t even close.
With all the negativity and uncertainty - and finally seeing that all the bravado was just that - I went back to TEC just last week and will wait it out just like the vast majority on this site has been doing. My 9 year old son won’t have to hear about lawsuits and evil bishops. My ill wife won’t have to deal with the stress and combat mentality. They were all very fine people. But not a good fit now.
I’ll just fight from within. I’ve come full circle on that after being on this site for over a year.
Plus, as I was discussing with my new TEC rector, there are plenty here that would call me heretical for my views on baptism, real presence, et al. So who am I?

No Truth Unites… and Divides,
You make sense in your arguments and I will give you kudos for that but you are wrong in one aspect of it in regrads to me.
I am not asking that we eliminate and dismiss the option of pursuing legal recourse as quickly as we can. We in California, and I am sure elsewhere have too, engaged in acting legally against the suits wheeled upon us, but they seem to just keep coming back, so where does it end? As suggested many times here and elsewhere it could go either way as long as it keeps on going! At what point do we say enough and focus on worshipping God wherever God wants us to whorship in whatever facility He wants us in. I want to obide by His will, not the will of the world, courts, materialism & human beings tht are tied so firmly to thingsthat they cannot take to heaven with them when they leave this earthly life.

Life is nasty and ugly in general just as war, lawsuits, spiritual warfare, etc… but there is much more happiness and joy when we walk the path of Jesus Christ. The war of all things belongs to God, not me, nor you, nor anyone else. I’m just saying how am I and all honoring Him in the engagement of continual legal battles that drain money & time that can be put to better use building and furthering His Kingdom through the teaching of the Truth, Way, & Life! ?

Dear ODC, I believe we are more close than distant in our perspectives.

I should like to examine one of your key statements.  You write: “...there is much more happiness and joy when we walk the path of Jesus Christ.”

I agree with you, but I’d like to unpack that statement a bit more.  Jesus was crucified.  Can you do that?  Can you bear the cross that the Lord wants you to bear?  Suppose, just as a hypothetical and no offense intended, that the Lord wants to crucify within you a tendency to run away when the going gets tough.  The Spirit happens to point out to you passages about division and standing firm and donning the armor of God in both the OT and the NT.

Remember this is hypothetical.  Would you be willing to surrender any timidity, to have that timidity crucified, and to bear a cross to be a full-fledged warrior-servant for God?  Which is something that you wouldn’t ordinarily want to do.

(And of course, the exact same inverse scenario could be posed to me.  And I would respond yes.)

Pax in Christ alone.

T U & D,
Jesus was crucified.  Can you do that?
No! Thank God he did it for me!

Can you bear the cross that the Lord wants you to bear?
Yes! and do it daily with His help, guidance, courage & wisdom that I pray for daily!

just as a hypothetical and no offense intended, that the Lord wants to crucify within you a tendency to run away when the going gets tough.  The Spirit happens to point out to you passages about division and standing firm and donning the armor of God in both the OT and the NT.
hmmmm? but what if (hypothetically speaking) He is telling me that He has better things in mind on this other path that does not include being entangled in lawsuits with non-believers and for me to come walk a different path with the resouces that come from Him that are being wasted on court & attorney’s fees that He has for me in taking up His aromor in truth and building on His word elsewhere.

Would you be willing to surrender any timidity, to have that timidity crucified, and to bear a cross to be a full-fledged warrior-servant for God?
Yes! If that was a clear message from God coming directly from Him and not he masses that want to continue to fight in the name of Jesus Christ!

And I am quite sure that with this passage I am about to post you will pick it apart to, but that’s fine!
<blockquote>Matthew 8:19-22
  And a scribe came up and said to him, “Teacher, I will follow you wherever you go.” [20] And Jesus said to him, “Foxes have holes, and birds of the air have nests, but the Son of Man has nowhere to lay his head.” [21] Another of the disciples said to him, “Lord, let me first go and bury my father.” [22] And Jesus said to him, “Follow me, and leave the dead to bury their own dead.”</blockquote.

I wish that all of the orthodox church buildings could be granted landmark status.  Although not orthodox, my church is designated an historic landmark.  It would be difficult for the TEC to seize it and develop it into condos.  As empty buildings, seized orthodox churches would stand as monuments to TEC’s cupidity.

ODC, we’re cool bro’.  When done right, and with respect and love, iron sharpens iron.

Truth Unites… and Divides,
True enough BTW I’m a sister in Christ, bro’!

I think of the Israelites in exile who kept the faith. I think of the early Christians who suffered horrible persecutions. And the martyrs all around the world in this generation. We lose one court ruling and folks are raising the white flag. These people will stop after we walk away and leave them the Episcopal church? No, they will start after the Baptists, Catholics, etc., even Boy Scouts. Your haven that you run to will not be safe for long. As orthodox Episcopalians, we have been blessed to be on the front line.

Now when the Philistines heard that the people of Israel had gathered at Mizpah, the lords of the Philistines went up against Israel. And when the people of Israel heard of it, they were afraid of the Philistines. And the people of Israel said to Samuel, “Do not cease to cry out to the LORD our God for us, that he may save us from the hand of the Philistines.” So Samuel took a nursing lamb and offered it as a whole burnt offering to the LORD. And Samuel cried out to the LORD for Israel, and the LORD answered him. As Samuel was offering up the burnt offering, the Philistines drew near to attack Israel. But the LORD thundered with a mighty sound that day against the Philistines and threw them into confusion, and they were routed before Israel.

Please accept my apologies, my dear sister-in-Christ, One Day Closer.

These unisex names always throw me off! 

robroy,
You are solid man of God and being one it is no surprise to me that you want to say in & fight a good fight! I don’t want to do it for 40 years!

No big deal, but I thought it only fair to let you know! By the way….I am quite sure that the faithful othrodox-conservative-tradionalists who are in charge will continue to wage forward in legal battle, I just don’t have to agree that it is the true and rightt hing to do, so I pray that God will intercede and cease it somehow and drect us on the path that glorifies Him in a more Godly manner!

ODC, I can understand where you’re coming from.  How ‘bout buying Sarah Hey’s book and seeing if there might be nuggets of Godly wisdom in it which might be helpful to you?

Truth Unites… and Divides -
Did! Thanks! 

DavidH, regardless of what the Supreme Court said in 1979, I find it unlikely that the current Court will rule that one party can shift property ownership to itself without consent of the other.  That would be in effect a vassal contract, which does not exist under U.S. law.

Cheers,

TH

If it’s any consolation, I get the feeling the whole lawsuit matter will be decisively resolved if the California cases reach the Supreme Court, which would be sometime in early 2009.  Whatever the Court’s ruling, it’s likely to set a precedent that would resolve the matter.

Of course if the Denis Canon is found unenforceable, then progressive parishes in Fort Worth can leave just as freely as conservative parishes in Los Angeles—which is as it should be, IMHO.

Cheers,

TH

Thanks, JamesW; and This_Day, I, too think that the ‘legally cognizable’ qualifier is potentially dispositive.

I’m still thinking through the ramifications of this, if (or to the extent that) it is, or becomes, generally-accepted law.

Bear with me through the following hypothetical, while I think this through.

So let’s say you’re a secular property-buyer. You’re looking for a 10-acre piece of prime real estate on which to build a store. (Or, in the alternative, you’re a bank, in the business of loaning money to churches, secured by their non-sanctuary investment property.)

John Oldeschoole, who has owned just such a parcel, dies, leaving a will that leaves his estate to his wife (who predeceased him in 1960)(and they have no other heirs-at-law), and the residuary clause leaves whatever remains to St Fred’s Episcopal Parish, Inc., an Episcopal parish incorporated under the laws of the fictional state of West Carolina.  (At the time of his will, it was a staunch, orthodox Anglican parish, a bastion of Christianity, with a million congregants.)

At the time Mr Oldeschoole acquired the property, it was used to grow corn. It still is—it has nothing but cornstalks on it, but now it is in a wealthy suburb, on a major intersection of the local urban beltway and a major interstate highway. The parcel is now valued at multiple millions of dollars.

St Fred’s takes the real estate under the will.

St Fred’s, which is in the arch-revisionist diocese of West Carolina, has changed with the times.  It is now inhabited entirely by people who publicly appear on talk shows every day of the week and declare that sex with Humboldt squid is a sacrament. In this, let us pretend, they are in 100% agreement with the diocese of West Carolina, ECUSA/TEC, Rowan Williams, the Presiding Bishop, and Lucifer, the Prince of Darkness himself. One big, happy family. In other words, no ideological conflict whatsoever anywhere down the ecclesiastical hierarchy. 

Now, let’s say St Fred’s, which now has 2 parishioners and meets in a Gothic Revival phone booth across town, decides it needs the money from the land (or, at least, to take a loan out on the land) to fund its Millennium Development Goals initiative. Absolutely no disapproval from anywhere up the ecclesiastical hierarchy (because any conflict would, of course, complicate things severalfold.) It decides to sell (or, in the alternative, to mortgage) the parcel.

You are the builder shopping for property–or, in the alternative, the bank contemplating making a loan, secured by a mortgage on this non-directly-religious-use parcel newly-acquired by St Fred’s. You are savvy enough to be aware of the Dennis Canon and you think that the opinion of the California Court of Appeals is likely to be treated as persuasive authority by the West Carolina courts. You realize, therefore, that this parcel of cornfield, now the property of St Fred’s, is subject to trust claims by the Diocese of West Carolina and TEC/ECUSA–though these appear nowhere of record for the property.

Are you not, at a minimum, going to need to seek written signoff from the Diocese and TEC/ECUSA before you close your transaction?

This is a significant complication, even assuming ZERO disapproval all the way up the hierarchy , it seems to me. Doesn’t ECUSA now put itself in the position of having to sign off on any major real (or personal?) property transaction by any church-affiliated entity? Obviously, some state laws will give some protection to those bona fide purchasers for value without actual notice of the ‘trust’ claim, but we can’t assume such ignorance will be universal–and, in my hypothetical, the would-be buyer (or lender) is actually aware of the Dennis Canon and the trust claim.  (And, if this sort of scenario gets duplicated more and more across the land, as TEC/ECUSA, ELCA, PCUSA, etc, etc run into similar disputes, you can bet that the title insurance companies, banks, etc are going to get wise to the potential clouds on title.)

Complicating?  I would think so.

Now let’s change things just a bit.  Let’s say the diocese is okay with the sale of the property, and the parish is in 100% agreement that a sale is the way to go.  Pretend, though, that there’s some disagreement between TEC/ECUSA and the Diocese of West Carolina as to whether such property should be mortgaged or sold.  TEC/ECUSA has adopted a policy vaguely and tangentially addressing this, but it is not crystal-clear whether this counts as an absolute prohibition of precisely this kind of sale of this kind of property.  Now it’s not merely a matter of the buyer or the lender or the title company needing TEC/ECUSA signoff—if the Diocese of West Carolina is going to approve the sale (and, under the Dennis Canon, it is a trustee, remember, and thus has fiduciary duties to TEC/ECUSA), then the diocese, quite independently of the interests of lender or purchaser, is going to balk at the sale until it can get written assurance from whatever body is authorised to speak for TEC/ECUSA on contemplated property transfers (which is—who?) that the sale is authorised.  Might delay the closing, no?

Just some musings.  Haven’t had the time to digest it all, but just some early thoughts.

ODC, if you’ve read Sarah’s book already, what did you think of it? 

(A 1-page book report would be nice, notwithstanding the fact that the author will probably be looking at your review!) 

Ref: Mr. Head’s comment regarding ‘shifting property ownership’ above.
Is that not precisely what the Denis Canon does? Has there ever been a Federal challenge to the effects of the Denis Canon?

RichardP - that is precisely what the Denis Canon purports to do.  It’s a legal fallacy, a big nothing.  Until the latest California case, I don’t think there were any cases upholding or giving effect to the Denis Canon.

RichardP writes:

Ref: Mr. Head’s comment regarding ‘shifting property ownership’ above.  Is that not precisely what the Denis Canon does?

Yes.

Has there ever been a Federal challenge to the effects of the Denis Canon?

No, and this would hopefully be the case put before the Supreme Court in 2009.

Cheers,

TH

Africanised Anglican, the answer to your question is yes at a Diocisian level.  Through a coordinated effort, Dioceses throughout the US passed regulations after adoption of the Denis Canon that required Diocisian approval (but not, of course, payment responsibility) for the mortgage of property and for all new property to be deeded in the name of the Diocese in Trust for the parish.  That is why there is a difference in the wording of the title to old and new property, and potentially different outcomes.  However, even with old property the Diocese is usually able to point to action by the Vestry “acknowledging” the Diocisian interest through such mortgage consent or other action.

I sat through one of these Diocisian convention debates, which occurred in the eighties, and was considered a bad apple for even objecting.

In response to an earlier comment, property for “new” Anglican parishes can be protected from similar circumstances through provisions in articles of incorporation and simply not acknowledging or accepting similar terms in the future.  New Anglican churches and their supporters should not be afraid of this, or use it as an excuse not to contribute to the establishment of new churches outside of TEC.

Africanised Anglican makes a point that I was wondering about.  Say the diocese approved the sale of a property a couple of years ago.  Nothing controversial.  Ordinary course.  Why isn’t the title clouded unless and until TEC relinquishes its interest in the property?  If I had purchased such a property (or was the lender or a title insurer) I think I’d be worried about it.  Particularly if I was ever planning to sell it again.

For what it’s worth, I believe AMiA’s/AACOM’s canons expressly vest title to church properties in the parishes themselves—essentially an anti-Dennis Canon.  If I remember correctly, there is sort of a financial ‘self-destruct’ clause elsewhere which purports to divest AMiA of all of its properties in the event of a renunciation of certain core doctrines.  Someone with better access to the AMiA constitution and canons might quote the relevant passages or post a link, while we’re talking about ways the new Anglican entities do, or might, deal with property issues.

Timothy and Africanized Anglican—
These issues of legal title and notice/recording ... that is the point the Jones court was TRYING to make.  If a national church and local church intend to create a trust,  they can assure that result by simply executing the proper transfer instruments like every other entity that’s subject to civil laws.  Unfortunately, the court used clumsy and imprecise language. 

The court was not creating a new kind of property interest ... it’s absurd to even conceive that an entity could simply declare that it owns someone else’s property.  No, the court was instructing how these “ecclesiastial” property disputes could be avoided by simply putting things in the proper legal form.

In NJ. by statute, no parish of TEC can convey property (or transfer title) without the consent of the Diocese.  There is no provision for obtaining the consent of the national church.

Truth Unites… and Divides -
Truth be known, I have not opened it up yet. It is in a pile of about a dozen more I need to open the covers and partake of the knowledge inside! But I did read the interview posted here on SF when it came out and I can only assume, and you may correct me if I am wrong, that since you challenged me in your hypothetical post and then threw out the bone of buying Sarah’s book you are tryng to “win” me over to the stand firm and fight the good fight montra and concede you are correct in your analogy. I am not budging from my stance in my faith and reliance on God and His provision for myself and the faithful. I do not consider myself on the path of marterdom either. Eventually I will get to Sarah’s book as well as all the others over there. And I am quite sure that I will no doubt find it an excellent read full of good tidbits to ponder. But the one book that will always take precedence over any other book given a choice is my Bible first, then my prayer book second! All others no matter how great they are will just be another book to read!

Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal.  And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

Ah but there is the rub isn’t it? It has to first be indicated by the parties. Any local church is only resposible to the Canons of the national church for as long as they agree to them. Once leaving they can not be forced to follow those Canons. The Denis Canon is just another Canon. SCOTUS clearly said they needed to recite the express trust in their constitution AND ensure that it is “embodied in some legally cognizable form” BESIDES the trust itself. What has TEC done to embody this trust? Nothing. They created a an express trust which assumes they owned the property. For a court to accept the Denis Canon as binding it needs to be shown they owned the property to begin with. TEC is using the Denis Canon to both show they own the property and establish that it’s is being held in trust for them by the local church. The Denis Canon itself only sets up the trust. Until TEC can show they own the property they can not settle a trust on it. They are relying on the local church acceptance of being bound by the Canons to enforce the trust. Once a local church rejects the Canons they reject the trust. Asking SCOTUS to reject neutral principles and accept a religious canon to establish both ownership and trust is asking alot in this day and age if you ask me.

If it’s “just brick and mortar” then why do the deadenders themselves want the property? 
If the deadenders want to leave, they can.  But if they want to leave AND take the property with them, that’s greed and it’s shameless.

I worship in a parish that is over 150 years old.  Our building is over 100 years old.  IF we wanted to leave the Episcopal Church, the building is not ours to take.

badger539,
Okay I have to ask…........Who are the “deadenders?”

The buildings do not belong to The Episcopal Church.

They belong to Jesus Christ.  At best, the Episcopal Church Dioceses were standing in for Christ.  When they gave up that position of authority, they lost any moral authority in this debate. In reality, the Diocesion authorities and national church isnt seeking to obtain the property for evangelistic purposes, indeed, the leaders of these entities openly repudiate the very evangelical principles upon which the church was founded.  They just want to deprive others of the buildings. 

I gladly walked from a magnificant facility, and believe that in many instances that is absolutely the right decision.  But I have zero sympathy for arguments that a heretical church hierarchy should have a claim on buildings constructed and maintained by orthodox congregations who seek to remain faithful to the Truth.

Five members - the majority - of the United States Supreme Court are conservative Roman Catholics.  How likely is it that they will rule against TEC and against the Episcopal dioceses in a case which will also have serious implications for the ownership of property in the US Roman Catholic Church?

Very likely.  Contrary to conventional wisdom, all five justices have shown considerable independence from the Roman Catholic Church.  Kennedy has upheld abortion rights, for example, and Scalia and Thomas have consistently ruled in favor of the death penalty.  I don’t agree with the five conservative justices, but they don’t legislate Roman Catholicism from the bench.

Cheers,

TH

BTW- If I were to go completely out on a limb here, I would say that this ruling will not be a 5-4 ruling and it will not break down along “liberal/conservative” lines.  Among other things, I would expect Breyer to rule in favor of dissenting parishes because his history on corporate law suggests that he probably will.

Cheers,

TH

Also: Do not be surprised if Souter, an Episcopalian, recuses himself.  Breyer (a Reform Jew) is also married to an Episcopalian, so it is entirely possible that he may recuse himself as well.

Regardless, the one thing I am ready to predict for certain is that if the Court hears this case, the ruling will not break down 5-4 on “party lines.”

Cheers,

TH

Some people have said the Denis Canon is not valid. Does anyone have any evidence that it is not valid? Would love to have it sent to Payne and Fears! As well as here on the blog.

Re: Denis Canon being invalid - are you referring to the legislative anomalies when it was enacted?  I don’t think there’s much to that argument, and so far courts will not consider whether or not a church has followed it’s own legislative processes.

For One Day Closer:
Well, that’s my term for a segment of a bell curve described by Charles Arn in his manuel “How to Start a New Service”.  The situation is a church that wants to start an additional service in a different worship style to meet the worship needs of a group that does not attend the present service(s).
2% are visionairies, people who will help plan and create the new service.
18% are early adopters and will support the service once it’s up and running.
60% will support the service once they see that it’s a success.
18% will eventually tolerate the new service
2% will never approve of it.
Those 2% are the deadenders. 
Likewise in the present travails of the Episcopal Church, I figure it stands to lose about 2% of it’s 7000 parishes.  I know people are tossing about all sorts of numbers, but my understanding is that 36 parishes that have left the Episcopal Church since the consecration of Bishop Robinson.

The buildings do not belong to The Episcopal Church.

They belong to Jesus Christ.

Well, yes Timothy.  The earth is the Lord’s and all in it.  But I believe the Episcopal Church is his trustee in this matter.

TH, there have been plenty of chances for the US Supreme Court to take a church property case since Jones v. Wolf.  They haven’t.  And, IMHO, unless a state court reaches a result completely at odds with Jones, they’re not going to.  SCOTUS also doesn’t take cases where state law is decisive, which dooms nearly all of these church cases.  It might be fun to speculate on what the current Court would do, but there’s absolutely no reason to believe they’re interested in revisiting this settled area of the law.

Finally, a “federal challenge” to the Dennis Canon is a pipe dream.  Civil courts cannot police whether churches follow their own, internal rules.

And for what it’s worth, I agree that the best course of action here is not to litigate.  If neither side wants to give up, create a property-sharing plan where both sides use the property for a few years.  See if both congregations thrive or one dies.

What appears to be settled law in CA, to some, and me isn’t.  A question remains who or what IS the trustor in all this.  The Palm Springs case aparently started with the assumption that the trustor was the parish, the presupposition of owership.  If they created the trust, they could simply revoke it.  But I find all of this fascinating.  A movement re-examining Jones v Wolf (neutral principles) and Watson v. Jones (hierarchical deference) and a restatement of the Jones v. Wolf’s recommendation to the parent church of creating such a canon (vs. constiutional amendment to Church’s constitution), and whether or not the Bush court will, given its concern with stare decisis, support the work of their brethren.

Last thought: I can respect alternative interpretations of the Jones language, but I don’t think they’re persuasive.  The fact is that the Court specifically mentioned making the general church’s constitution recite an express trust as a way to settle the matter.  In effect, they invited the Dennis Canon.  Do you really think they’re about to ignore that and hold all such canons (the Presbyterians have one too) invalid?

DavidH, I see what you’re saying, based on the language in Jones v. Wolf, but that can’t be the whole picture.  Unless you’re willing to put religious organizations in an entirely different category in terms of trusts (which some have done and advocated), one party wishing to create a trust can’t merely assert it, which is why the other language is in there:

And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

I think, based on reading that and looking at subsequent state court decisions, that the real issue then becomes what exactly indicates the intent of the parties to enter into the trust.  Is it merely failure to leave the general church upon passage of the trust clause?  Cooperation with the general church on property matters?  Or does it have to be some sort of official action (or most clear, an amendment to corporate documents) adopted by the parish to indicate intent to enter the trust?  These questions lead down the rabbit hole of trust law, and I’m not qualified to answer them.  But at the very least, it seems like in most jurisdictions, the Dennis Canon by itself hasn’t been enough under Jones v. Wolf.  You need at least some pro forma attempt to show that the parish agreed - a very low bar in some places, but it’s there.

Addendum:

I think the Jones v. Wolf Court’s goal was to try to give legal effect to the intent of the parties…and in almost every case, the parties chose not to get together and hammer out their precise relationship in case of a split…because often their intents were different, or because doing so would have the same distasteful flavor as signing a prenuptial agreement about who gets what in case of divorce.  It would be admitting the possibility of defeat, at a time (the late 1970s and early 1980s) when there were already tensions starting to well up.

I don’t mean to monopolize the thread, but I did want to comment on the earlier remarks (Lapinbizarre, Tom Head) concerning Catholic Supreme Court justices and this issue.

Justice Powell, a Virginia Presbyterian, certainly didn’t recuse himself from Jones v. Wolf, instead writing a stinging dissent from the majority’s holding that either hierarchical deference or neutral principles would be constitutional.  I’m not suggesting his affiliation dictated his position - just that there’s precedent for not recusing oneself based on affiliation from cases of this precise nature.

As to Catholic justices, it should also be noted that, if they were to vote based purely on the interests of their confessional home (again, debatable despite what Tony Auth says), it would seem they would go in favor of neutral principles, since the Roman Catholic Church is trying its darndest to avoid central liability (in bankruptcy and otherwise) for the actions of local parish employees.  It’s almost the exact opposite issue.

All five RC justices now customarily attend the archbishop of Washington’s mass of the Holy Ghost, specially celebrated at the opening of each Court session.  Is this a conflict of interest?

Is it a conflict of interest to have persons of religious faith in public office, where their duties might sometimes intersect their personal beliefs?  Depends on who you ask…but I would think either way it would be at least purportedly a First Amendment issue, rather than a conflict of interest in the narrow legal sense.

It isn’t necessarily a conflict of interest for a justice to rule on matters impacting his or her own denomination, never mind others.  The issue is whether Souter, who is Episcopalian, or Breyer, who is married to one, might voluntarily avoid ruling on the case because of their ties to the Episcopal Church.  If they do not, I would certainly not call that a conflict of interest, just as I would not expect all five Roman Catholic justices to recuse themselves on matters impacting the Roman Catholic Church.

DavidH, I disagree with your interpretation of Jones because the Denis Canon is a national policy and the issue of whether or not it is binding does not depend exclusively on individual state law.  I think the case will go before the 9th Circuit and a federal regional (not state-specific) precedent of some kind will be set, at which point one side or the other will appeal the case to the Supreme Court.  If the Supreme Court elects not to hear it and a national precedent is not set, then I would expect each regional Circuit Court to come to a different understanding of the situation, much as is currently being done with respect to gun rights issues and the issue of whether or not the gas chamber constitutes cruel and unusual punishment. 

I certainly agree that the cases should not be litigated, and I have suggested property-sharing agreements from the very beginning.  If it is going to be litigated, however, I would rather see a clear precedent set by the Supreme Court in 18 months than see this drag on for the next generation and a half, where both sides focus their mission on keeping or acquiring property and other material goods.  I think we already know that this is what institutional Christianity has become—it all seems to be about Holy Pledges and Holy Pensions, regardless of the church’s theology—but I don’t think any of us want to see that played out.  An early and binding decision would at least let us operate under the illusion that churches are not commercial enterprises.

Cheers,

TH

I meant to say 4th Circuit, not 9th, though obviously this is going to end up before more than one federal appeals court before all is said and done.

Cheers,

TH

No, I meant 9th Circuit.  Sorry; writing about several Supreme Court rulings for my “day job” and I’m getting my cases confused.

Cheers,

TH

Tom Head,

Actually, I don’t think a federal court of appeals will ever see this, or any similar case.  These are state cases, and the chain of appeal will be up to the highest state court, and then from there directly to the United States Supreme Court, if all appeals are exhausted.  Based on this, it looks like there’s a petition for rehearing by the Court of Appeals, followed by discretionary appeal to the California Supreme Court.  If I have some time later, I’ll pull up the California practice guide and see if it offers anything interesting regarding either of those processes.

I suppose one could imagine some tortured scenario whereby the initial claim is filed in federal court (an Episcopal parish on a Reservation?), but if it’s framed as a property dispute, chances are it’ll go through the state court system.

Dear One Day Closer, what do you think of the following message by J.C. Ryle?  (hat tip to Brad Drell)

  True Christianity! Let us mind that word “true.” There is a vast quantity of religion current in the world which is not true, genuine Christianity. It passes muster, it satisfies sleepy consciences; but it is not good money. It is not the authentic reality that called itself Christianity in the beginning. There are thousands of men and women who go to churches and chapels every Sunday and call themselves Christians. They make a “profession” of faith in Christ. Their names are in the baptismal register. They are reckoned Christians while they live. They are married with a Christian marriage service. They mean to be buried as Christians when they die. But you never see any “fight” about their religion! Of spiritual strife and exertion and conflict and self–denial and watching and warring they know literally nothing at all. Such Christianity may satisfy man, and those who say anything against it may be thought very hard and uncharitable; but it certainly is not the Christianity of the Bible. It is not the religion which the Lord Jesus founded and His apostles preached. It is not the religion which produces real holiness. True Christianity is “a fight.”

The true Christian is called to be a soldier and must behave as such from the day of his conversion to the day of his death. He is not meant to live a life of religious ease, indolence and security. He must never imagine for a moment that he can sleep and doze along the way to heaven, like one traveling in an easy carriage. If he takes his standard of Christianity from the children of this world, he may be content with such notions, but he will find no countenance for them in the Word of God. If the Bible is the rule of his faith and practice, he will find his course laid down very plainly in this matter. He must “fight.”

–J.C. Ryle

That is a good letter! Again I say, what a blessing we get to be on the frontline as orthodox Anglicans!

I think about Ruth Graham, wife of Billy, who was born to missionary parents. In one of the recent eulogies, they stated that her early life goal was to be martyred for Christ. We have it easy. We just get called “gay-hating A$$holes” and have our churches taken away.

Jeff,

You are of course correct.  This is why I should not pontificate on such things until I have finished my coffee!

Cheers,

TH

I can imagine scenarios where the initial claim would be filed in federal court ... or removed to federal court based on a counterclaims grounded in constitutional issues.

I don’t know if the link to the Caplifornia appellate court decision has been appeared on this site but in case it hasn’t, here it is: http://www.courtinfo.ca.gov/opinions/documents/G036096.PDF

A couple of observations:
1.  I’ll bet the California Supreme Court accepts the case for review.  The opinion points out conflicts between the intermediate appellate court opinions. Such conflicts are why you have a state supreme court.
2.  It is interesting that in the Episcopal Church, the diocese are attempting to augment their control over parish property, while in the Catholic Church in the US, at least some bishops are trying to downplay their control of parish property, with a bit of assistance from Rome.  See http://epiph.blogspot.com/2006/01/who-owns-church.html