Friday, 30 August 2013

Texas Supreme Court rules on church property cases

The Supreme Court of Texas today handed down its decisions in two cases relating to the property of The Episcopal Church. In both cases the ruling was against a diocese of The Episcopal Church.

The actual texts of the decisions are here:

Statements were issued by the two Fort Worth diocesan organisations:

Pastoral Letter from Bishop High

Pastoral Letter from Bishop Iker

A S Haley writes:

Today the Texas Supreme Court handed down decisions in the two ECUSA cases pending before it: No. 11-0265, Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church, et al.; and No. 11-0332, Masterson v. Diocese of Northwest Texas. In the first case, the Court sided with Bishop Iker’s Diocese by a closely split vote of 5-4, reversed the summary judgment of Circuit Judge John Chupp which had awarded all of the property and assets of Bishop Iker’s Diocese to the Episcopal Church and its rump diocese, and sent the case back to the trial court. The majority held that the trial court had improperly failed to apply a “neutral principles of law” analysis to the issues. The four dissenters did not disagree with that result, but instead believed that the Court lacked jurisdiction to hear a direct appeal from the trial court’s judgment in the case.

In the second case, the Court by a vote of 7-2 reversed the Court of Appeals’ decision requiring the Church of the Good Shepherd in San Angelo to turn over its building and all other assets to the Diocese of Northwest Texas. The Court definitively ruled that all Texas courts must follow “neutral principles of law” (rather than deferring to an ecclesiastical hierarchy), and that based on such an analysis, the Dennis Canon was not effective under Texas law (or that if it were effective to create a trust, the trust was not expressly irrevocable, and so could be revoked by the parish in question)…

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It just sets it up to go to the US Supreme Court, the very court that advised hierarchical churches to add devices such as the Dennis Canon.

Posted by: Bro David on Friday, 30 August 2013 at 11:34pm BST

Mr A.S. Haley, a lawyer associated with those in the U.S. who are actively opposed to the polity of TEC, is a noted advocate of ACNA and, as such, can be expected to rejoice at the action of the Texas Supreme Court in refuting TEC's dependence on the 'Dennis Canon', which gives special precedence to The Episcopal Church in matters of govvernance and property ownership.

Mr. Haley well knows the financial benefits accruing to the legal fraternity in the United States in their involvement with Church affairs, and may indeed be glad that his ACNA associates have, at last, had a court decision made on their behalf. Whether or not this will signal an escalation of benefits for the break-away ex-TEC entities in other States of the U.S. remains, though, to be seen.

Posted by: Father Ron Smith on Saturday, 31 August 2013 at 1:11am BST

"...based on such an analysis, the Dennis Canon was not effective under Texas law (or that if it were effective to create a trust, the trust was not expressly irrevocable, and so could be revoked by the parish in question)…"

Nonsense. This part of the ruling is clearly unconstitutional; the government and its courts have no business telling any religious organization how it should arrange its polity or its property holdings.

Posted by: Pat O'Neill on Saturday, 31 August 2013 at 2:56am BST

This is the state, where the gay population had to appeal to the US Supreme Court to get homosexuality legalised.

No doubt the Episcopal church will have to go to the Supreme Court to get justice. I have also little confidence in South Carolina justice either.

Furthermore whilst I abhor polygamy... how the Texas legal system treated a polygamous Mormon community was appalling.

Texas, America's most illiterate and retrograde state. The state that produced George Bush junior. Says it all, really.

Posted by: robert ian williams on Saturday, 31 August 2013 at 6:14am BST

From the SCOT order:

See TEX. PROP. CODE § 112.051 (“A settlor may revoke the trust unless it is irrevocable by the
express terms of the instrument creating it or of an instrument modifying it.”).

TEC will likely need to modify its constitution and canons if it wants to own local property. I suspect big liberal dioceses (PA) would oppose that.

Posted by: cseitz on Saturday, 31 August 2013 at 11:09am BST

Bro David

The hastily prepared 'Dennis Canon' picked up the advice of SCOTUS Justice Blackmun in 1979 Jones v Wolf that if churches wanted to own the property 'from top down' they had better create rules/canons (you use the language 'device') in their church documents that would function legally (viz., to commit trustees and beneficiaries both).

The 'Dennis Canon' would purport to establish this trust in one direction. Even an 'accession' to it does not do the work Blackmun suggested. My memory is he even said as much.

This is what the SCOT means when it cites its own statutes--widely similar in other states--about trust law.

If one wants to see what 'top down' property title looks like, see the United Methodist Church, PCA, RCC.

My question is whether TEC leadership will seek to return to Blackmun's suggestion and correct this deficiency. The problem is that even liberal dioceses will not like this.

Jones v Wolf is readily available on line.

Posted by: cseitz on Saturday, 31 August 2013 at 1:00pm BST

It is certainly true that A.S.Haley is on "the other side" and is no doubt rejoicing in this ruling--which i most emphatically am not. However, he does try to keep his legal analyses grounded in the facts and law.

The Texas Supreme Court decision is deplorable, but, in view of the composition of the US Supreme Court now, I wouldn't put it past them to modify Jones v. Wolf to the benefit of the more conservative faction.

Unfortunately, TEC may be paying a price here for its policy of not litigating these matter, canonically or in civil court, at the first act to withdraw property rights from the national church. We'll see how the case comes out on the remand, but the Texas Supreme Court certainly seems to be signaling a win for the breakaway action, assuming they prove the facts they allege.

Posted by: John Wirenius on Saturday, 31 August 2013 at 1:30pm BST

Actually, Dr Seitz, Jones v. Wolf expressly names as a means of securing the property for the "faction loyal to the hierarchical church" the adding of a provision in the hierarchical church's governing documents in almost the exact words of the Dennis Canon. The opinion then states that "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" such as those previously listed by the Court. No further requirement appears in the opinion. See 443 U.S. at 606.

I see nothing in the opinion to suggest any higher showing beyond such a canon's existence in the terms set out in Jones. As to the Texas Supreme Court opinion, it seems to me to be going beyond what Jones allowed as the appropriate role for neutral principles, by presumptively treating the trust as freely revocable, which does violence to the Jones concept that the "burden involved in taking such steps will be minimal." Id. If the trust must comply with the many local variants of formalities required of ordinary trusts, not cloaked by First Amendment protection, then the burden is not minimal, as promised by the Court in Jones.

Posted by: John Wirenius on Saturday, 31 August 2013 at 2:12pm BST

I believe cseitz is incorrect in thinking the SCOT decision will have application beyond Texas, as it hinges on a specific aspect of Texas law, by which the irrevocable nature of a trust must be explicit in the language of the trust. This is not the case in all state property law, or if it is, it is surprising that this is not the more common decision.

I do not know how the case will now be argued in its return to the lower court, but it does seem likely that in spite of the fact that the trust relationship in the Dennis Canon could not be dissoluble by the parish, or it would have no meaning as a trust. The issue would appear to be, who is the settlor in this case? The trust was established by the church, not by the parish.

We shall see how this pans out, but I am not optimistic that Texas law will see the intent as sufficient to maintain the trust, and this may be headed to SCOTUS after all.

Posted by: Tobias Haller on Saturday, 31 August 2013 at 2:43pm BST

You are correct, JW. SCOT looked for the language of 'irrevocable' and did not find it. The key language in Jones v Wolf, frequently conveniently left out, is Blackmun's last sentence. That is what SCOT quoted, quite rightly.

As I understand it, TX trust law at this point is not terribly different in other states, though I accept the point that for now TX is the major thorn in the side of those wanting property title to extend to 'national church.'

Posted by: cseitz on Saturday, 31 August 2013 at 5:38pm BST

For ease of reference I here cite from the dicta of Blackmun:

"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."

SCOT did not recognize the Dennis Canon as in this form, given TX trust law.

One suspects that the effort may be made to achieve this end by other means, but we shall have to see the response of Title IV orientated officialdom...

Posted by: cseitz on Saturday, 31 August 2013 at 5:53pm BST

"The Texas Supreme Court decision is deplorable, but, in view of the composition of the US Supreme Court now, I wouldn't put it past them to modify Jones v. Wolf to the benefit of the more conservative faction."

Considering how many Roman Catholics are on SCOTUS (inc the Chief Justice), and how many RC parishes would LOVE to break away and take the property with them, do you REALLY think SCOTUS would open this can o' worms? I think not.

Posted by: JCF on Saturday, 31 August 2013 at 8:13pm BST

Thanks for your clarification, Dr. Seitz. I suspect that you are over-reading that last phrase, in that I don't believe that the denomination is expected to anticipate the formalities of trust law from locality to locality; after all, the specific examples given by the preceding sentences. So, the passage in full: "They [members of the ecclesial body] 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."

That said, the following section creates an ambiguity as to whether state laws that do *not* recognize the amendment to the church's governing documents are constitutional. I believe that the specific example given in the majority opinion necessarily implies that such a device is sufficient, but I understand your contrary reading. I think, as a matter of legal interpretation, it is the less correct, but in view of the personnel changes since Jones, am unable to be as sure as I would like that my reading would clearly prevail before the current Court.

Posted by: John Wirenius on Saturday, 31 August 2013 at 8:28pm BST

Mr Wirenius, thank you for your response.

My personal view is that TEC will simply find other (Title IV) ways to bring about whatever outcome they wish. I am sorry to have to say that.

We are entering difficult waters.

Posted by: cseitz on Saturday, 31 August 2013 at 10:31pm BST

"My personal view is that TEC will simply find other (Title IV) ways to bring about whatever outcome they wish. I am sorry to have to say that. "

Why "sorry"? Are you really of the opinion that a parish or diocese that has been part of the national church since the inception of the parish or diocese should have the right to abscond with property the founders of said parish or diocese clearly intended to be of benefit to the church as a whole?

Further...any rector or vestry member is bound by the by-laws and canons of his or her parish and/or diocese...all of which require adhering to the canons of the national church, including the Dennis Canon. Whether the courts think the Dennis Canon is correct or not should not enter into it; the vows and oaths taken by rectors and vestry members should take precedence under the First Amendment.

Posted by: Pat O'Neill on Sunday, 1 September 2013 at 1:41am BST

"the founders of said parish or diocese clearly intended to be of benefit to the church as a whole"

Unfounded assertion # 1.

"Whether the courts think the Dennis Canon is correct or not should not enter into it"

Extremely dangerous assertion # 2.

Posted by: cseitz on Sunday, 1 September 2013 at 11:34am BST

Actually, there are a lot of people in and out of the church who believe that a church is set up for the local people, not to be just another asset of an international corporation in New York, which is what TEC is. TEC didn't build it, buy it, maintain it so if the locals who did pay for it think the national brand is going the wrong way, they should be able to leave. If you asked most people in the local church, what does the national church do in return for that 19% of income they want, what would most people say? Could they think of anything? There are no Episcopal schools, hospitals, orphanages, or monasteries here now. A hundred years ago, but not now. Why are there both conservatives and liberals in the church who specify where in the church their money goes if the organization is so wonderful? Would Jesus like these huge organizations, not just TEC, but all of them, that build wealth in His name?

Some of my great grandparents helped fund and build local churches, and my grandfather lived long enough to see the church stop sending missionaries and start giving funds to the pro-abortion, pro-gay lobbies and he was quite sure they would rather have burnt the church down than see it happen. So no, I rather think some of those who've gone before would be on the side of the breakaways.

Posted by: Chris H. on Sunday, 1 September 2013 at 2:51pm BST

""the founders of said parish or diocese clearly intended to be of benefit to the church as a whole"

Unfounded assertion # 1."

The canons and by-laws of the parish and diocese so state. Are they wrong?

""Whether the courts think the Dennis Canon is correct or not should not enter into it"

Extremely dangerous assertion # 2."

On the contrary...it is extremely dangerous for the government, through its courts, to determine what the polity and property rights of a religous institution should be. In that manner, a government can decide that THIS church gets to keep its property and THAT church does not.

"TEC didn't build it, buy it, maintain it so if the locals who did pay for it think the national brand is going the wrong way, they should be able to leave."

But the locals adopted and agreed to the canons and by-laws of the parish and diocese, both of which expressly confirm that they will abide by the canons of the national church, of which the Dennis Canon is an integral part...and the Dennis Canon says the parish and diocesan property is held in trust for the national church.

Yes, the individuals are free to leave at any time, but they are not free to take the property with them. Are your children free to take possession of your house when they leave?

Posted by: Pat O'Neill on Sunday, 1 September 2013 at 7:06pm BST

"the locals adopted and agreed to the canons and by-laws of the parish and diocese"

Nonsense. Get a calendar out. Jones v Wolf was a *1979 case*. *1979*. The Dennis Canon is even later.

Thank God we have courts that put a stop to people's logic like your own. I am third generation episcopal clergy. In my own lifetime, what you here assert would be regarded as eccentric and special pleading of the worst kind.

Please pick up a copy of Dawley's The Episcopal Church and its Work. It will repay careful study.

Posted by: cseitz on Monday, 2 September 2013 at 1:25am BST

"I don't believe that the denomination is expected to anticipate the formalities of trust law from locality to locality[.]"

Why not? Denominations have to follow state and local laws in other matters such as withholding rates for state and local income taxes, zoning, fire codes, etc.

If any of these property cases is accepted by the U.S. Supreme Court (none of them has so far), the Court may have to clarify whether or not Justice Blackmun's language about establishing a trust by amending a denomination's constitution is dicta. If it isn't, the Court may also have to explain where it gets the authority to determine state law requirements for establishing a trust. On such matters a state's supreme court (or in New York, the Court of Appeals) is usually the final authority.

Posted by: Paul Powers on Monday, 2 September 2013 at 4:35am BST

Plus, didn't Bishop Iker himself use the Dennis canon, when he prevented a departing parish taking their property with them ten years ago?

Posted by: Robert Ian williams on Monday, 2 September 2013 at 6:12am BST

Fairly argued, I think, Pat O'Neill!

Posted by: Father Ron Smith on Monday, 2 September 2013 at 6:25am BST

""the locals adopted and agreed to the canons and by-laws of the parish and diocese"

Nonsense. Get a calendar out. Jones v Wolf was a *1979 case*. *1979*. The Dennis Canon is even later. "

So, when I agree to follow the laws of my city, state or nation, I am not obligated to follow any NEW laws that may arise after that agreement? Thank you...I may now, with impunity, park in that "no parking" zone that was established after I moved to my current home.

"Why not? Denominations have to follow state and local laws in other matters such as withholding rates for state and local income taxes, zoning, fire codes, etc."

None of those laws affect the polity of the religious denomination. None of them affect who OWNS the denomination's property.

And Father Ron, thank you.

Posted by: Pat O'Neill on Monday, 2 September 2013 at 11:28am BST

> Are your children free to take possession of your house when they leave?

One might argue that the answer was yes, if they bought the house for you in the first place!

No-one comes out well from this sort of bickering. Wouldn't it be fairer and more Christian to allow the property to go with the local majority?

Posted by: Veuster on Monday, 2 September 2013 at 12:12pm BST

I don't think your analogy of the kids and the house applies because when the parents die the house/property goes to the children to do as they choose(i.e. the church to later parish members/vestry) not to a corporation in New York, unless the parents signed papers stating the inheritance goes elsewhere and such wills/trusts can be broken. Texas is saying part of the problem is the Canon neither has a way to break it, nor says it's unbreakable. It's incomplete.

The parish builds the church, gives the money for use of the name, BCP, etc. and TEC gives back, what? Sounds more like people who own a restaurant buying a franchise for McDonald's, paying fees for the name, advertising, etc. then the national corp. changes it's rules and says, "We now own all property belonging to the franchises." That wasn't in the agreement the franchises signed, but that's the way it goes now. McD's could do it for new stores, but would the court let them take the property of all the old ones without new signatures and without the owners having a chance to get out? Some states have exemptions for religious groups in trust law, Texas apparently doesn't.

It's not a given that all denominations or hierarchical churches take everything. When the Lutheran ELCA formed, those parishes with the deed in their name can and did leave with their property. Only those churches built after the new agreement with deeds in the synod's name can't take the property. Why didn't TEC change the deeds then?

Still, no one has answered, would Jesus be for the conglomerate amassing wealth in His name? Should we be having this fight at all? Why does the national church need vast property? They get income from the assessments and special fundraisers for certain activities. Should prince bishops live in palaces or fancy houses living 3+ times better than regular people? People have been complaining about the greed of the Catholic church for centuries. I don't remember when I realized most denominations are the same.

Posted by: Chris H on Monday, 2 September 2013 at 2:43pm BST

@Paul Powers: because the national church can, the US Supreme Court ruled in the very opinion under discussion, effect the creation of the trust through its constitution or canons. To expect the constitution or canons of a church to address the trust formalities of 50 states' varying laws, and to keep current with them all, does not impose a "minimal" burden but a fairly significant one. More to the point, this is a First Amendment issue, where the Free Exercise Clause is implicated.

So the real question is, what state law applies--the HQ. of the national church? Some other state's? Or all of them? The opinion is not ideally clear, but seems to me to suggest that state law is limited in its applicability--does the document create a trust? If so, state law seems to be applied less rigorously tan to a commercial setting.

Posted by: John Wirenius on Monday, 2 September 2013 at 3:03pm BST

Mr O'Neill

The 'law' in Texas does not recognize the trust being purported by TEC.

That is the law.

You spoke of founders of churches and their wishes. There was no Dennis canon purporting to do anything at that time. All property in the Diocese of Dallas belongs to the Corporation of the EDOD. That is the legal entity.

If you want a church like you are describing, you will need to join the Roman Catholic, PCA or Methodist Church.

Posted by: cseitz on Monday, 2 September 2013 at 3:15pm BST

@John Wirenius: The Supreme Court did not _rule_ that a church can create a trust through its constitution and canons. The lawsuit did not involve a trust, so that question was not before the court. I believe Justice Blackmun's suggestion is dicta. You obviously don't. I guess we won't know for sure unless and until the Court agrees to hear another church property case. So far, it has declined to do so.

Requiring national churches to comply with state law in establishing a trust wouldn't necessarily be all that burdensome. To the best of my knowledge, every diocese has a chancellor who is licensed to practice law in the state where the diocese is located and is presumably familiar with that state's property laws. A national church can direct its dioceses to adopt canons providing for the transfer of parish properties into a trust for the benefit of the diocese and national church. The diocesan chancellor can advise the diocese on the steps required to make such trusts valid under state law. The diocesan convention can adopt canons following the chancellor's advice. Problem solved!

Posted by: Paul Powers on Monday, 2 September 2013 at 4:22pm BST

Paul Powers,

Fair point about the use of the word "rule, " but I think that when the Supreme Court lays out what the necessary steps to effect a desired result in a constitutional case that has not been revisited in 30 years, and upon which religious bodies, state supreme courts, federal intermediate appellate courts and trial courts have relied, the "dicta/holding" distinction becomes less relevant. One could argue that Brown v. Bd. of Education didn't rule that all governmentally mandated segregation by race is unconstitutional. Technically true, but no way to run a legal system.

Your suggestion that compliance with 50 states' laws "wouldn't necessarily be all that burdensome" wouldn't address the very case at issue here, where the diocesan officials are the ones who choose to defect.

Posted by: John Wirenius on Monday, 2 September 2013 at 7:42pm BST

"Mr O'Neill

The 'law' in Texas does not recognize the trust being purported by TEC.

That is the law.

You spoke of founders of churches and their wishes. There was no Dennis canon purporting to do anything at that time. All property in the Diocese of Dallas belongs to the Corporation of the EDOD. That is the legal entity."

But all the rectors, bishops and vestry members in the relevant jurisdictions took oaths to obey the canons of TEC...without any phrasing of "except those that may be adopted after we take this oath or to which we object." Analogously, virtually all public officials in this country take an oath to protect and defend the Constitution...and that oath includes any amendments to the Constitution passed after the oath is taken. (Otherwise, for example, those who objected to alcohol could have ignored the repeal of prohibition...or those who objected to women's suffrage could have ignored that amendment.)

Posted by: Pat O'Neill on Monday, 2 September 2013 at 9:36pm BST

"A national church can direct its dioceses to adopt canons providing for the transfer of parish properties into a trust for the benefit of the diocese and national church. The diocesan chancellor can advise the diocese on the steps required to make such trusts valid under state law. The diocesan convention can adopt canons following the chancellor's advice. Problem solved!"

And what does the national church do when the diocese refuses to do so (as obviously would have been the case in Dallas)? Or when the diocese chooses to repeal such a canon? If the canon is not national in scope, it remains up to each diocese, effectively making the national church reliant upon the dioceses for its polity.

Posted by: Pat O'Neill on Monday, 2 September 2013 at 9:39pm BST

"...effectively making the national church reliant upon the dioceses for its polity."

How have you missed this salient point so long?

The 'national church' is an association of dioceses. That is why it is called The Episcopal Church -- not the General Convention Church, or the PB Church. That is why there are diocesan C/Cs (cf CofE).

Perhaps your question could be better phrased:

'Why have efforts to create a 'national church' faltered, been resisted (on left and right), or been confusedly/inadequately accomplished?'

The answer is: the tension between Bishops/dioceses and the history of Anglicanism in the New World, v. the very idea of a 'national church.'

I have consistently argued that if you want the latter, you have work to do. You will meet resistance as much from liberal dioceses as others. You will need to eliminate diocesan C/C. You will need to find compulsory giving schedules. You will need a tribunal to determine when new canons and things like Title IV are constitutional. You will need, probably, to make the PB a Metropolitan.

All you are doing here is identifying the very challenges that lie at the heart of what Anglicanism means to be in the USA. What you apparently fail to note is that the matter is inherently unstable. The 'Dennis Canon' is an almost perfect example of the instability. And it has now been exposed as such. A rough-and-ready effort to pick up on a dicta of a Supreme Court Justice and make it have legs. It did not work.

Posted by: cseitz on Monday, 2 September 2013 at 10:44pm BST

""...effectively making the national church reliant upon the dioceses for its polity."

How have you missed this salient point so long?

The 'national church' is an association of dioceses. That is why it is called The Episcopal Church -- not the General Convention Church, or the PB Church. That is why there are diocesan C/Cs (cf CofE). "

Says you. This is the religious version of the states' rights argument...that the federal government is a voluntary association of sovereign states.

It is nonsense in the political world and it's nonsense in the religious one (at least as it applies to the Episcopal Church). The vast majority of dioceses in this church were CREATED by action of the national church, through General Convention (as the vast majority of states in the Union were created by action of the federal government through Congress). The few that were not--those predating the formation of the Episcopal Church in the 18th Century--assented to being constituent parts of that church when it was founded (just as the original 13 states did when they ratified the Constitution). The assent included agreeing to abide by the canons of the Episcopal Church...including any canons adopted after their assent.

As for the diocese in question in this case, here's the history of its formation, as described in Wikipedia:

"The Episcopal Diocese of Dallas is a diocese of the Episcopal Church USA which was formed on December 20, 1895, when the Missionary District of Northern Texas was granted diocesan status at the denomination's General Convention the preceding October. The Rt Rev Alexander Charles Garrett, who had served as the first bishop of the Missionary District of Northern Texas, remained as bishop of the new diocese. The diocese began with thirteen parishes.

The Missionary District of Northern Texas was formed when a portion of the Episcopal Diocese of Texas was divided on February 2, 1875."

Note the all-important phrase "granted diocesan status at the denomination's General Convention". In other words, the diocese of Dallas is the creation of the national church...it is not a voluntary member of that church, any more than the branch of a tree is a voluntary member of that tree.

Posted by: Pat O'Neill on Tuesday, 3 September 2013 at 12:24am BST

It's fascinating how 'granted status' moves so effortlessly to 'created.' So the National Church came to Texas and 'created' a Bishop, and organized parishes, and 'went home' and marveled at its creation.

No, a diocese sought to associate and General Convention confirmed that request. That is the role given to them (General Convention does not create dioceses). So we are watching as SC and Ft W disassociate. They are The Episcopal Diocese of SC and The Episcopal Diocese of Ft Worth.

The idea that we should expect a church to track seamlessly with the national entity (with a Chief Executive) is wishful thinking and in this case simply wrong.

Posted by: cseitz on Tuesday, 3 September 2013 at 1:19pm BST

You also might find this transcript portion from the Quincy trial helpful for clarifying the polity of TEC. That ruling is also pending.

Please note the reference is to the Diocese of Los Angeles--hardly a conservative bastion.

Q. You’ve also testified that a number of dioceses—I believe 25 of them—continue as full members of ECUSA despite not having appropriate accession clauses in their constitutions. Has General Convention ever tried to do anything about that situation? A. Again, not that I’ve seen.

Q. What could it do, if it wanted? A. It’s debatable what it could do under the current non-supremacist arrangements.

Q. Did a recent incident happen with regard to the trial of a bishop where they tried to compel production of documents from a diocese? A. Yes, it did.

Q. Did that diocese refuse? A. Yes, it did.

Q. What were they—What was the court able to do with regard to compelling production of those documents? A. The court said that the Diocese of Los Angeles was an autonomous body and that they could not compel them to provide information, or words to that effect. ...

Q. So, Dr. Bonner, based on your research and the facts to which you’ve testified here, how you would characterize then the organization known as ECUSA? A. An extremely decentralized association of state churches, for want of a better word.

Q. Or dioceses? A. Or dioceses. I don’t like that word even though it’s the correct pronunciation.

Q. In your opinion, is the organization itself greater than any of its constituent parts? A. No, not in the absence of a supremacy clause.

Q. What are the closest models to its form of organization in your opinion? A. Again, we alluded to them earlier, but the situation—the political situation under the Articles of Confederation is the most obvious example. The Anglican Consultative Council and the United Nations are [also] analogous but perhaps less obvious.

Posted by: cseitz on Tuesday, 3 September 2013 at 2:18pm BST

"It's fascinating how 'granted status' moves so effortlessly to 'created.' So the National Church came to Texas and 'created' a Bishop, and organized parishes, and 'went home' and marveled at its creation.

No, a diocese sought to associate and General Convention confirmed that request. That is the role given to them (General Convention does not create dioceses). So we are watching as SC and Ft W disassociate. They are The Episcopal Diocese of SC and The Episcopal Diocese of Ft Worth."

There was NO diocese of Dallas until GC created it. In fact, even the Missionary District of North Texas that petitioned to become a diocese was a creature of GC, created when GC broke up the former diocese of Texas. To pretend that the diocese existed before GC so acted is to pretend that any entity can name itself an Episcopal diocese, as if GC had no authority over its own constituent members.

"The idea that we should expect a church to track seamlessly with the national entity (with a Chief Executive) is wishful thinking and in this case simply wrong."

But that idea exists from the very foundation of the Episcopal Church in the United States, from its democratic method of choosing bishops and rectors, from the greater control of vestry in parish affairs and standing committees in diocesan affairs, from the naming of a Presiding Bishop (as opposed to an Archbishop) as the head of the denomination. The Episcopal Church was created to mirror...as closely as a religious entity could...the democratic and federal nature of the secular government.

One more question, Dr. Seitz:

I have used the history of the creation of the diocese of Dallas as evidence for my argument. Can you cite any historical evidence for your claim that the Episcopal Church has always been seen as "association of dioceses"? A statement by a Presiding Bishop? A statement by even a diocesan bishop that predates the current controversies? I note that the last time there was a similar controversy regarding church doctrine, the dissenters left and formed their own denomination (the Reformed Episcopal Church), but not by blithely taking the real and personal property of the parishes and dioceses with which they were formerly affiliated.

Posted by: Pat O'Neill on Tuesday, 3 September 2013 at 2:51pm BST

See the previous note, please.

1. Yes, it mirrored the states-rights model you referred to; is this in doubt? See also the transcript above where Dr Bonner says this explicitly. Your point was that it stopped being this, and there is no evidence for that. LA refers to itself as autonomous, and the court agrees.
2. The REC had a doctrinal dispute grosso modo over baptismal regeneration (and also segregation) and this dispute was not a diocesan integrity one. So this analogy is false (and explains why we have never seen it used before).
3. You are welcome to read Dawley at p. 116. "While the Bishop's exercise of independent power within a diocese is restricted by the share of the church government possessed by the Diocesan Convention or the Standing Committee, his independence in respect to the rest of the church is almost complete".
4. Of course there was a diocese of Dallas--that is what was being petitioned for vis-à-vis GC! GC does not create dioceses -- it does not have the concrete means to do that. The language you are looking for it, admits to association, or grants status,etc. And of course, as mentioned above, what is why there remains an Episcopal Diocese of SC and and Episcopal Diocese of Ft Worth.

Posted by: cseitz on Tuesday, 3 September 2013 at 4:12pm BST

Dr. Seitz:

Who exactly is Dr. Bonner? And why should we find his testimony compelling? His conclusion, that the Episcopal Church is "[a]n extremely decentralized association of state churches," seems to be merely his opinion, without foundation in any of the documents of the church itself.

As for the example of whether the national church can compel a diocese to do anything, such as turn over documents, I return to my analogy of the states and the federal government. The US government cannot compel a state government in matters such as this, either, absent a federal statute that says it can.

Posted by: Pat O'Neill on Tuesday, 3 September 2013 at 5:23pm BST

An excellent answer Mr O'Neil, but the Reformed Episcopal Church in Chicago took its TEC property with it.

Posted by: robert ian Williams on Tuesday, 3 September 2013 at 6:50pm BST

The refreshing thing about this note from Dawley is its candor. “While there may be many good reasons for not changing the constitutional arrangements *which have resulted in this diocesan independence,* it must be recognized that at times it has seriously handicapped the effort of the Episcopal Church at the national level.”

If the Episcopal Church wants now to style itself a "national church," it must push against this principle. That is why it is resisted even in places like LA and PA. That is why there are diocesan constitution and canons. That is why giving is voluntary. That is why Title IV is presently being reviewed and was received in EDOD only to the degree that it could be held to be constitutional – EDOD C/C themselves require this. Have a look at Podmore’s “A Tale of Two Churches” (Ecc LJ 2008) where immediately one notes the sui generis character of The Episcopal Church in the US. It is that character which is in the fire of testing right now, and why there is pressure (from some quarters) to change things. I doubt these will succeed however. As a colleague said, money is a tide against which even the king’s sword cannot prevail – and at present time TEC is short of it to such an extent it cannot start constraining dioceses who also are stretched. One wonders if the TEC experiment of diocesan polity will need contraction and mergers long before one could contemplate greater centralization.

Posted by: cseitz on Tuesday, 3 September 2013 at 9:03pm BST

"1. Yes, it mirrored the states-rights model you referred to; is this in doubt? See also the transcript above where Dr Bonner says this explicitly. Your point was that it stopped being this, and there is no evidence for that. LA refers to itself as autonomous, and the court agrees."

But the court is not the last word on the matter (nor should it be in a society where church and state are not the same thing).

2. The REC had a doctrinal dispute grosso modo over baptismal regeneration (and also segregation) and this dispute was not a diocesan integrity one. So this analogy is false (and explains why we have never seen it used before).

Come now, are you arguing that the current controversies are about "diocesan integrity" and not issues regarding women's ordination and the status of gays in the church? Really? One might analogously say that the American Civil War was about "states' rights" and not slavery...and one would be equally disingenuous.

3. You are welcome to read Dawley at p. 116. "While the Bishop's exercise of independent power within a diocese is restricted by the share of the church government possessed by the Diocesan Convention or the Standing Committee, his independence in respect to the rest of the church is almost complete".

Except, of course, that the rest of church can charge him with violation of his oath to observe the canons of the national church and, if found guilty, depose him. And that his election to his post is dependent on approval from General Convention or the assent of the standing committees of a majority of other dioceses (depending on the timing of the election). That's an odd sort of independence.

4. Of course there was a diocese of Dallas--that is what was being petitioned for vis-à-vis GC! GC does not create dioceses -- it does not have the concrete means to do that. The language you are looking for it, admits to association, or grants status,etc. And of course, as mentioned above, what is why there remains an Episcopal Diocese of SC and and Episcopal Diocese of Ft Worth.

Until that petition was approved by GC, no such diocese existed...only the Missionary District of North Texas. You don't get to call yourself a diocese of the Episcopal Church without approval from that church's governing body.

Posted by: Pat O'Neill on Tuesday, 3 September 2013 at 9:37pm BST

"...the Reformed Episcopal Church in Chicago took its TEC property with it."

With or without the consent of those who remained with TEC? That is the issue...

Posted by: Pat O'Neill on Tuesday, 3 September 2013 at 9:38pm BST

"If the Episcopal Church wants now to style itself a "national church," it must push against this principle. That is why it is resisted even in places like LA and PA. That is why there are diocesan constitution and canons."

No, there are diocesan constitutions and canons because the national church recognizes, in the manner of the BCP, that local norms and standards may require differing methods of doing things. Does the existence of state constitutions and laws mean that the federal government is without authority? Please note that canons of TEC state that the national canons take precedence over diocesan ones, just as federal law trumps state law where the two conflict.


Posted by: Pat O'Neill on Tuesday, 3 September 2013 at 9:43pm BST

I'm no longer sure what you are actually arguing for. If TEC is a states-rights model of polity (on secular analogy) then the dioceses are autonomous agents (as in the claim of LA -- no federal agent can make LA hand over documents even though requested by TEC). They cannot be constrained (see Dawley above). The Constitution of TEC cannot be infringed upon but must be altered if one wants a different model. Dennis is void in TX and SC. It is dubious in other states and 25 have no accession clauses anyway. Dr Bonner was expert testimony in the Quincy case. We should have that ruling this week. The REC is irrelevant as noted above.

Posted by: cseitz on Tuesday, 3 September 2013 at 10:30pm BST

Well, you have at least helpfully ceased using the language of GC 'creating' dioceses. They confirm their status so they may 'call themselves' a diocese in TEC. And having done that, said Diocese may then disassociate, as we are presently observing.

Posted by: cseitz on Tuesday, 3 September 2013 at 10:37pm BST

1. "But the court is not the last word on the matter (nor should it be in a society where church and state are not the same thing)."

I am afraid in the case of LA you are wrong. Bruno refused and that was the end of the matter.

2. I am indeed saying the issue is about diocesan integrity. Your REC example has gone into the gutter. The ruling in TX--which this thread is about--is to do with Dioceses in TX and their status vis-à-vis the 'national church.' A concocted Dennis Canon was shown to be against state law. This means the dioceses in TX are free to ignore it. I struggle to see how you have thought this was about something else.

3. Bishops are no longer "deposed." That takes too much work. Have you not followed the proceedings of the last two years or so? They have their orders renounced for them. Deposition requires Senior Bishops and they didn't cooperate.

4. There are diocesan canons which recognize the TEC constitution, and where the newly minted TEC canons arguably go against that, they are not received. That was the outcome in EDOD. And that is why Title IV is being reviewed.

Posted by: cseitz on Tuesday, 3 September 2013 at 10:51pm BST

The REC parish in Chicago seceeded and the diocese did nothing.However this was a one off, and I agree with Mr O'Neil, no diocese can leave TEC unilaterally.

They may be able to dupe the Texas judiciary, but the SCOTUS will see right through this.

Why has no one commented on the fact Iker used the Dennis canon to force a departing parish to give up its property?

Posted by: robert ian Williams on Tuesday, 3 September 2013 at 11:02pm BST

"If TEC is a states-rights model of polity (on secular analogy) then the dioceses are autonomous agents (as in the claim of LA -- no federal agent can make LA hand over documents even though requested by TEC)."

When did I ever suggest this was my stand? I reject the states' rights model on both the secular and religious levels (at least as far as TEC is concerned). Just like a state is a creature of the federal government, a diocese is a creature of TEC. Both exist because the larger organization created them.

As for this:

"They [General Convention] confirm their status so they may 'call themselves' a diocese in TEC."

A distinction without a difference, as they say in law. Until GC so confirms, the petitioning entity is not a diocese, any more than a petitioning territory is a state until Congress says so. Is it your position that an individual parish can declare itself a "diocese" and expect to be treated as one, even if GC never so confirms?

Posted by: Pat O'Neill on Wednesday, 4 September 2013 at 12:33am BST

"2. I am indeed saying the issue is about diocesan integrity. Your REC example has gone into the gutter. The ruling in TX--which this thread is about--is to do with Dioceses in TX and their status vis-à-vis the 'national church.' A concocted Dennis Canon was shown to be against state law. This means the dioceses in TX are free to ignore it. I struggle to see how you have thought this was about something else."

Oh, come now. What is the REASON the dioceses in Texas want to leave TEC and go to ACNA? You are, quite deliberately I think, ignoring the underlying reason for the split simply to concentrate on the legalities of the split.

Posted by: Pat O'Neill on Wednesday, 4 September 2013 at 11:19am BST

You certainly have an active imagination! No Dioceses in TX are headed to ACNA. What a bizarre idea.

Posted by: cseitz on Wednesday, 4 September 2013 at 12:33pm BST

So now we have SCOTUS riding in to save the day.

A Diocese organizes as such, petitions GC, and becomes a Diocese in association with TEC. Then, as in SC and Ft Worth, when the association proves untenable, they disassociate. What about this is hard to understand?

And, for the umpteenth time, it may be possible to stop this, but TEC will need to change the language of Dennis and request fresh accessions. Or achieve this by some other means, and face the opposition even in liberal dioceses.

Posted by: cseitz on Wednesday, 4 September 2013 at 12:39pm BST

I firmly believe the US Supreme Court will settle this in favor of the national Episcopal Church and the property will be returned to the rightful owners. As was stated many times before in this forum, those who disagreed with the polity of the national Church have a clear option: LEAVE and form a new Church. Leaving does not give rights to those Churches to take property which does not belong to them. This would fall under the category of outright theft and in spite of the few rulings in states such as Texas and South Carolina, the US Supreme Court will be placed in a position to agree with the national Church which is a hierarchical Church with very clear canons that address this issue. There is clear history here which will play an important role in the US Supreme Court's decision. I am confident the national Church will prevail. I would like to know where the money for these break away Churches is coming from. Obviously, they have the money to file these lawsuits. We need to know the sources of this financial backing of the break away Churches. It will be most informative to know the sources.

Posted by: Chris Smith on Wednesday, 4 September 2013 at 5:32pm BST

If relying on the US Supreme Court a) wading into State court judgments, and b)siding with a 'national church' is your idea of hopefulness, by all means rest in that.

In the meantime, it might make sense to get the 25 states who have no accession clause to get on board, and to work hard to overturn judgments going against your view.

And yes, it takes a lot of money to do that. You have fairly asked the question. Where does TEC get all this money to litigate and spend 1M on expert testimony, etc. Does it draw down the DFMS funds by labeling litigation 'mission'? What is the most recent estimate of how much money TEC has spent? Over 60 Million is it?

Posted by: cseitz on Wednesday, 4 September 2013 at 8:25pm BST

"You certainly have an active imagination! No Dioceses in TX are headed to ACNA. What a bizarre idea. "

Then where is Fort Worth going?

"A Diocese organizes as such, petitions GC, and becomes a Diocese in association with TEC."

I can organize myself as a diocese all I want...but until TEC confirms my position as one, I am not a diocese. I can organize myself as President of the United States, but unless I am elected, I am not the president.

Posted by: Pat O'Neill on Wednesday, 4 September 2013 at 8:36pm BST

Robert Ian Williams, Bishop Iker didn't use the Dennis Canon to force the departing parish to give back the property. The Dennis Canon did not apply in that case because the _Diocesan Corporation_, not the parish had legal title to the property. Also, the lawsuit was between the Diocesan Corporation and the leadership of the departing parish. TEC was not a party to the lawsuit, and Bishop Iker made no assertions about TEC having an interest in the property. In any event, the case settled, so we can't be certain how the court would have ruled if there had been a trial.

Posted by: Paul Powers on Wednesday, 4 September 2013 at 9:30pm BST

So, let's see, you Pat O'Neill consist of more than a dozen parishes with active and longstanding congregations; you are a bishop; you have organized yourself in duly canonical convention.

Your comment is frankly absurd. All of this was true of the diocese that asked to associate with TEC. It is not true of you. You are welcome to style yourself president of the USA for good measure.

Ft Worth is I believe part of the Southern Cone. There are five other dioceses affected by the Dennis Canon. Your remark that they were leaving for ACNA is also absurd.

Thank you Paul Powers. The parishes in EDOD are also held by the corporation.

When the fog clears after this long exchange, I hope people better understand the lay of the land in TEC. 25 Dioceses with no accession clause. +Bruno says no to intrusion in LA and is upheld and no charges made against him. How a diocese petitions to belong to TEC and why they can disassociate. And of course all that hopefulness about SCOTUS wading in and granting TEC's every wish.

Posted by: cseitz on Wednesday, 4 September 2013 at 10:42pm BST

Well, according to this page
http://en.wikipedia.org/wiki/Episcopal_Diocese_of_Fort_Worth_(ACNA)
ACNA is engaged. Perhaps the page is wrong. But on the other hand, Fort Worth is listed by ACNA on its own website...

According to Google Maps, Ft Worth is about 34 miles from Dallas...

Posted by: Simon Sarmiento on Wednesday, 4 September 2013 at 11:34pm BST

This dramatic/hysterical comment

"Oh, come now. What is the REASON the dioceses in Texas want to leave TEC and go to ACNA."

was not about Ft Worth as such.

There are 6 dioceses in TX.

Posted by: cseitz on Wednesday, 4 September 2013 at 11:41pm BST

I can see there is no point in further discussion of this issue with Dr. Seitz. He is living in a strange land where a diocese exists outside of a national church, something that is completely apart from the "catholic" nature of Anglican polity (including TEC) and is not the case in any other church that is part of the Anglican Communion.

Further, he seems to believe (or would like us to believe), that the only issue in dispute between places like Ft. Worth and the national church is "diocesan integrity." That issues such as women's ordination and the status of gays in the church did not lead Ft. Worth to attempt to depart TEC and leave for the Southern Cone, or ACNA, or wherever it is they claim to be part of now.

I give up.

Posted by: Pat O'Neill on Thursday, 5 September 2013 at 3:40am BST

Paul Powers..."TEC was not a party to the lawsuit, and Bishop Iker made no assertions about TEC having an interest in the property."

Contact the departing congregation for the full facts. The interest of TEC was implied by the fact the Episcopal of Fort Worth was and is a diocese of the Episcopal Church and no diocese can act unilaterally and detrimentally against the interests of the main body. If Iker and co had done so in this case, TEC would have acted.

As for CSeitz.. read some of his previous legal opinion on other cases and see how he is invariably wrong.

Posted by: robert ian Williams on Thursday, 5 September 2013 at 6:55am BST

Oh, come now, Pat!

Haven't you realized before how big a problem integrity is for these so-called "conservative anglicans?"

:)

Posted by: MarkBrunson on Thursday, 5 September 2013 at 8:38am BST

Oh, now we have the 'catholic' ecclesial concerns of TEC!

The diocesan polity of TEC may be the one thing that preserves linkage with the Communion's catholicity. A 'national church' with its own special teaching is the last thing one could call catholic, and genuine liberals want nothing to do with that. You are right to put 'catholic' in scare quotes.

Posted by: cseitz on Thursday, 5 September 2013 at 1:16pm BST

All this legalistic bickering and point-scoring about property shows institutional Christianity at its most unattractive.

Let the local majority have the property, and let both sides get back to preaching the Gospel.

Posted by: Veuster on Thursday, 5 September 2013 at 2:00pm BST

"Let the local majority have the property, and let both sides get back to preaching the Gospel. "

IMO, the problem is two-fold:

1. Determining the "local majority"...in most parishes, it's the squeaky wheels that get the grease...even if only one of the four is squeaking.

2. In too many cases, the local majority's version of the Gospel is at odds with the national church's version.

Posted by: Pat O'Neill on Thursday, 5 September 2013 at 2:46pm BST

Pat, I love the "squeaky wheels" analogy. I hadn't encountered it before but I will use it in future when appropriate!

I suppose the local majority might reply that the national church's version of the Gospel had changed over the years whereas their version hadn't, so that they - not the national church - were being faithful to the principles of the original builders and benefactors.

While my sympathies are with the national church on the interpretation of the Gospel, I can understand the feelings of local majorities (or minorities) who feel overlooked and unheard, and I would try for compromise and accommodation wherever possible, rather than standing on strict legal rights.

Posted by: Veuster on Thursday, 5 September 2013 at 6:02pm BST

"...I would try for compromise and accommodation wherever possible, rather than standing on strict legal rights."

So would I, but experience seems to indicate that the groups seeking to depart TEC are (like their secular counterparts in the political world) unwilling to compromise, unless compromise is defined as "I get my way and you learn to live with it."

Posted by: Pat O'Neill on Thursday, 5 September 2013 at 10:25pm BST


"...I would try for compromise and accommodation wherever possible, rather than standing on strict legal rights."

And allow unscrupulous persons ( and also some well meaning persons)to get away with theft? These cases have implications for religious liberty and every religious denomination in the USA.

Posted by: Robert ian Williams on Friday, 6 September 2013 at 8:11am BST

The church treasurer and I were talking about this and she pointed out that while TEC(national)claims up and down they own the property, when property has been sold in this diocese, the income from the sale has always been kept by the diocese, not TEC. Also, the disbanding parish got to choose where the money went, mostly to the nearest parish or to the diocese camp or seminary scholarship fund. She couldn't recall anyone requesting the money to be sent to TEC's general fund. Apparently Pat and some others here would, though. Do all those arguing for national ownership rather than local ownership really want to send all those assets to New York? If TEC is the real owner, they should. Should your parish or diocese sell property I do hope you're as vocal demanding all income go to the national offices as you are here since it's their property. Then another thought struck, how long will it be until TEC decides it's financial woes are bad enough to demand dioceses sell property and pay them the money? If, as you keep arguing, everyone has always been giving their money to the church with the understanding it's for the glory of the national church, then they have that right. Considering the apparent money grab they're planning with UTO, perhaps it won't be long.

Posted by: Chris H. on Friday, 6 September 2013 at 5:37pm BST

Chris, I think you misunderstand the scope of the trust in favor of TEC and the applicable diocese. It does not limit a congregation's power over the property so long as the congregation remains a part of TEC. So your concerns about possible money-grabs by TEC of property connected with congegrations not attempting to leave TEC seem misplaced. The text of the applicable TEC canon (1.7.4) is as follows:

"All real and personal property held by or for the benefit of any Parish, Mission or congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons."

Posted by: dr.primrose on Friday, 6 September 2013 at 7:35pm BST
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