Comments: California court rules on church property cases

At the very least, the decision seems to leave the Southern Coners of San Joaquin up the creek without a cathedral.

Posted by Pat O'Neill at Tuesday, 6 January 2009 at 11:07pm GMT

I kinda saw this coming, though I'm surprised at just how strongly the court came down on the side of ECUSA. The vote was for all intents and purposes unanimous. Wow.

This certainly bodes ill for the Anglican Diocese of San Joaquin.

Whether and how it affects the Virginia cases of course remains to be seen, but I can't see the division statute there standing the test of constitutionality, precisely for the reasons the California court stated in refusing to accept the parishes' arguments -- it interferes with the internal workings of a religious institution.

Meanwhile maybe this will put a dent in the new breed of Congregationalist Anglicans that is appearing. But I won't hold my breath.

Posted by Walsingham at Wednesday, 7 January 2009 at 12:06am GMT

The ruling is wrong in its analysis and absurd in its results. As the justices plainly admit, no secular organization would be allowed to take property under such circumstances, The local churches which are having their property confiscated never explicitly deeded their property to the diocese or to the national church. The court relied on internal church documents to prove that California citizens could be stripped of their property without the protection of the state - a deed proving that they intended such a transaction. All the protections that a deed affords to secular citizens are denied these California citizens because they are churches.
The only justification for this discrimination and absurd entanglement of government with religion is "historic deference given to superior church bodies". These California judges have taken upon themselves to enforce church documents of which they can truly know nothing. Their duty was to neutrally analyze the documents that are duly recognized to transfer property rights and give the right result. Their "deference" is in fact an unconstitutional entanglement of government with religion and has the effect of strengthening one religous faction against another. The justices had no business in thrusting themselves unwanted into religious arguments. By their unwonted intervention the court has made itself a party to absurd and inequitable results. THe Court has in effect judged the affilation of a local church with the national chutch to be irrevocable, with loss of property as the forfeit for leaving.THe Court causes the state to endorse the result that if the overwhelming majority of a local church should decide to leave a relationship with the national church, the few remaining church members are to be unjustly enriched with the legacy and the property that the majority bought and paid for. The majority are to be bereft of everything. Unconstitutional.Challenge it again.

Posted by Bronwyn at Wednesday, 7 January 2009 at 12:24am GMT

It will be interesting indeed to see if this has any effect upon the property dispute cases now pending in other locations in the US and whether the folks in places like Ft. Worth and Pittsburgh, who have decided to affiliate with other Anglican churches, are going to go ahead and hire lawyers to claim ownership of what isn't really theirs. Suppose those who chose to follow former Bishop Schofield out of TEC are going to give back what they have walked away with in view of the California Supreme Court's ruling?

Posted by Richard Warren at Wednesday, 7 January 2009 at 1:02am GMT

"These governing documents make clear
that church property is held in trust for the general church and may be controlled
by the local church only so long as that local church remains a part of the general
church. When it disaffiliated from the general church, the local church did not
have the right to take the church property with it." - Supreme Court of California ruling -

In reply to Bronwyn here, the Supreme Court of California obviously does not agree with your undetstanding of the issue of property ownership vis-a-vis the dispute Diocese versus Congregation in California. TEC membership is not based upon Congregationalism - a situation very clearly understood by the Supreme Court in California, if not by the secessionists.

Obviously the departing schismatics will have to find some other way of funding the excursions of foreign prelates into the Californian territory of TEC. The property belongs to past generations of loyal members of TEC and cannot be alienated by dissenters from the polity of TEC. End of story

Posted by Father Ron Smith at Wednesday, 7 January 2009 at 9:52am GMT

Bronwyn: "The ruling is wrong in its analysis and absurd in its results..."

It's time this weird Anglican congregationalism was finally put to bed. No other Anglican province would permit a congregation to leave and take the property with it. Nor would congregations in other provinces expect to be able to do so. Even the very provinces that are egging the American defectors on do not permit it. E.g. the Constitution of the Church of Nigeria states:

"55. With effect from the registration of the Trustees under the Companies and Allied Matters Act, 1990, all property of the Church of Nigeria (Anglican Communion), movable or immovable, real or personal, shall become vested in the Registered Trustees of the Church of Nigeria (Anglican Communion) for and on behalf of the General Synod."

And yet they're cheerleading their CANA congregations to do the very thing their own Constitution would prohibit!?

Churches are not the property of Anglican parishes to do with as they please. Parishes in other provinces have no problem with that, and happily continue to fund, support and keep 'their' parish church in good repair. It's no novelty; it's Anglican (and catholic) polity. Anything else is simply congregationalist, which Anglicanism has never been.

Posted by MJ at Wednesday, 7 January 2009 at 9:53am GMT

This sounds like a wise ruling to me. It recognises that the churches of the Anglican Communion are episcopal in nature and that individual parishes are part of the diocese, not separate entities. Many of these parishes will have income and/or property from generations before, people who would not have wanted their bequests to be given away to breakaway groups. Any other ruling would have been impossible to uphold.

Posted by toby forward at Wednesday, 7 January 2009 at 10:27am GMT


Do the words in the canons and charter of the subject parishes mean nothing? Do the passages and phrases that say the property is held in trust for the diocese and the national church have no validity?

As for what the majority "bought and paid for" mean the predecessors of that majority, don't you? The current parishioners may have paid for the recent upkeep of the property, but they didn't pay to buy it or build it. If these parishes are like most around here, not even the descendants of the people who DID make those payments are parishioners there any longer.

Posted by Pat O'Neill at Wednesday, 7 January 2009 at 11:14am GMT

"If these parishes are like most around here, not even the descendants of the people who DID make those payments are parishioners there any longer."

OTOH, I know of a couple of people in my church here in Harrisonburg whose family members - some going back to colonial times - are in fact interred at The Falls Chruch. They are most unhappy to have the breakaway congregants controlling that property.

Posted by Cynthia Gilliatt at Wednesday, 7 January 2009 at 12:36pm GMT

"no secular organization"

"having their property confiscated"

"citizens could be stripped of their property"


Bronwyn, these statements show an alarming attitude towards the Church. The Church is not a secular organization. "Citizens" are not being stripped of "their" property. The property belongs to God. Oh, I know, everything belongs to God, but it is an ancient principle that congregations do not "own" the buildings they have built "to the glory and honour of God". Your insistence on seeing this as "discrimination" shows your attachment to victimhood rather than reality. Sorry, but if people want to go into schism, that's their prerogative, but they don't get to take the buildings with them, those buildings ceased to belong to them when they were consecrated to the worship of God. You aren't being victimized here, difficult though that may be to admit. We live, after all, in a culture that glorifies those who identify as victims and then fight against that victimhood, but we are constantly, and rightly, being told that Christians are supposed to be "countercultural". Thus we are supposed to go against this trend to identify as victims to win the world's approval. This sense of victimization is actually profoundly worldly. It is also pretty basic to American culture to consider the rights of the individual to be paramount, but again, Christians are not individualists, we live in community. I know it is a painful thing to feel the Church in which all your spiritual formation has taken place has abandoned the faith She taught you, I used to feel the same way. But you aren't a victim.

Posted by Ford Elms at Wednesday, 7 January 2009 at 1:23pm GMT

What does it mean in practice?

Posted by Mark Wharton at Wednesday, 7 January 2009 at 2:03pm GMT

"The only justification for this discrimination and absurd entanglement of government with religion is "historic deference given to superior church bodies". These California judges have taken upon themselves to enforce church documents of which they can truly know nothing."

On the contrary, they are *required* by Supreme Court precedent to give effect to the rulings of superior church bodies. The CA court correctly applied current precedent as have dozens of courts around the US. It implements the First Amendment guarantees of Freedom of Religion as it allows hierarchical churches to order their affairs as they choose. If you have a problem with that, you need to get your case in front of the Supreme Court and get them to change their precedent.

Don't hold your breath.

Posted by ruidh at Wednesday, 7 January 2009 at 4:25pm GMT

And, for that matter, the language of California Civil Code sections 9142(c) and 9142(d), which were enacted after the U.S. Supreme Court's decision in Jones v. Wolf specifically to address the issue. A statute duly enacted by the Legislature of a state of the United States to implement a holding of the United States Supreme Court is anything but unconstitutional. Bronwyn may not like the result, but from his post, it's clear he/she doesn't have the qualifications to make the statements he/she has.

Posted by Richard Zevnik at Wednesday, 7 January 2009 at 5:05pm GMT

Pat O'Neill - Sincere thanks for saving me the trouble of responding to Bronwyn. The only thing I care to add is that Churches are,clearly, not secular institutions so Bronwyn's comments are rendered suspect by the very first statement she makes.
It really would have been so much easier if the dissenters had done what so many others have done in millenia past and just packed their tents and moved on to new quarters rather than expecting to appropriate places that previous generations had paid for and expected to be passed down to their church - not to a dissenting version of their original church.
The sad truth is that today's "conservatives" would generally have been considered radicals by generations past considering, as one example, their general acceptance of divorce.

Posted by ettu at Wednesday, 7 January 2009 at 5:06pm GMT

It's important to keep in mind that whenever two people sue each other, only the lawyers win. I can't muster much sympathy for the Anglican Diocese of SJ, but this represents a waste of time, energy and money by both sides. Considerable ill will has been built. And now, how many of the old buildings will we have to sell because we can't create self-sustaining parishes in all of them?

Posted by Weiwen at Wednesday, 7 January 2009 at 5:46pm GMT

The California Supreme Court and the SCOTUS both recognize the validity of either the "hierarchical church" OR the effective "neutrality" of the statutes of a hierarchical church. This does not, as the lone dissenter seems to think, virtually render all decisions hierarchical -- but it does recognize that there is a covenant and trust relationship involved in hierarchical churches, and that explicit covenant and trust is in itself a neutral principle of law. This is the one point that the dissident side do not acknowledge; that the SCOTUS decision includes the laws of a hierarchical church as neutral in themselves: the state, in short, recognizes Canon Law and the ability of corporate persons to bind themselves to those laws. And when they are bound to those laws, they have to accept the consequences of violating them.

Posted by Tobias Haller at Wednesday, 7 January 2009 at 5:52pm GMT

The sad thing is , that the departing Dioceses know that they will lose..but they are banking on spinning the cases out for about five years.

Leagl bills are cheaper than renting or building new Churches.

They could only take more people with them by pretending they had a legal case.

Also even with this definitive ruling some of the Church congregations are planning an appeal!

Posted by Robert Ian Williams at Wednesday, 7 January 2009 at 6:09pm GMT

Me thinks Bronwyn just wants to stir up trouble. Can't imagine why! Must be a sore loser.

Posted by bobinswpa at Wednesday, 7 January 2009 at 6:28pm GMT

[Pounding the table, Bronwyn? (Old lawyers joke, re what to do when neither the law nor the facts are on one's side)]

Sad, to see it come to this. In this case, IMO, the Cal S.C. has been a vehicle for God's Justice. Depart in peace, "Church of Ugandans"...

Posted by JCF at Wednesday, 7 January 2009 at 7:41pm GMT

Bronwyn's spin doctoring is a definitional effort that falls flat. TEC has long been that typical USA combo of a national or provincial hierarchical church (hence, bishops, and GC) with counterbalancing local parish or congregational features (vestry, local calls, and so forth).

None of the local features was construed before now to undo or weaken the national or provincial ones, any more than such parish realities were understood to undo or weaken diocesan life any more than it already was. (The Wesleyians thought USA episcopal church bishops to be already too weak, so even United Methodist bishops have more direct power in some ways than TEC bishops do, over their own diocese or a local parish?)

Realignment believers no more hold property in trust for the rest of us than they hold an exclusive trust when it comes to following Jesus of Nazareth in our own century, according to open-ended best practices of inquiry, scholarship, or discernment in ethics and theology. Alas.

This strong court ruling? Just another welcome, clear step in a longer change process. One doubts that separated believers will wish to reconcile in much of any fashion, for after all from their closed-minded presuppositions and frameworks, they would be reconciling with nothing but sin and with nobody but sinners. If the conservative realignment campaigners could see diversities of believers as genuinely big tent stuff, they would not have had to leave. All this bully megachurch intensification is possibly a convulsion against too many changes in believer life and thought, too fast to digest.

But wake up believers, the genome has been decoded, and research continues apace. That and other indicators predict more and faster change, not less, and certainly not in favor of believers riding dinosaurs park displays.

I predict that most of the conservative realignment campaigners will now return to their planning groups, determined to find some other area where they can spin doctor, confuse, and presuppose things away - all of course, in their sole favor. Thank goodness the rest of us are not stranded on desert islands, alone with them. They would surely hog all the food, water, and other resources they believe the Lord has exclusively willed only for them. Joining them is like a frat initiation where you get whacked with penal religion paddles and have to yell out proper ritual thank yous to the delighted pledge master.

Alas, Lord have mercy.

Posted by drdanfee at Wednesday, 7 January 2009 at 7:43pm GMT

"What does it mean in practice?" - Mark Wharton -

Mark, if you need this to be spelt out for you, you must not have been completely understanding of the cause for which you have been contesting here on this blog-site.

Briefly, it means that the supreme Court of California has ruled against the attempts of parishes within its area to take with them the property of the TEC Churches with which they were formerly associated when they were members of TEC.

If you want further background of the disputes, you should take the trouble to look back over previous articles on this and other web-sites which have been following the historic dispute between TEC and the departing congregants of people who prefer the leadership of Archbishops of Nigeria, Uganda, Kenya & Southern Cone, rather than the leadership of their own Bishops in USA and Canada. Such behaviour has brought significant consequences - such as those described in this article.

Posted by Father Ron Smith at Wednesday, 7 January 2009 at 10:22pm GMT

Oh dear, Bronwyn, did you not know that The Episcopal Church is NOT formed of on the basis of congregational parishes?

The California Supreme Court seemed to have no trouble understanding that reality, now did it?

You may not like the result, but the Court deliberated on the basis of much more information available to either you, or me, or anyone else posting here.

And, as anyone who follows the US legal system knows, while you can get an off-the-wall (either direction) first level judge, the process purges most of those anomalies at the appellate level.

California's appellate process has spoken clearly, and the prospective poachers of national and diocesan church property are now duly put on notice that their attempted poaching will not succeed.

Individual congregants, and individual priests, and even individual bishops, may depart the Episcopal Church whenever they choose, for whatever right-wing Puritan fundamentalist, or whatever left-wing bizarre, sect that they might like. They simply cannot take away what belongs to the Episcopal Church when they do depart.

Surely you must understand that, don't you?

Posted by Jerry Hannon at Thursday, 8 January 2009 at 1:36am GMT


I've been your way. I recently visited Trinity in Staunton. I do see that on of the Network listed parishes in Charlottesville has distanced itself from the network (they even taken the emblems and link off their web page). Maybe some fo the parishes are starting to think this is going too far!

I think the case will be helpful to those in Virginia. Pennsylvania has come already come down on the side of the hierarchical church.

This happened with St. James the Less---
"The church and associated school have been closed since 2006, when, after a lengthy court battle, the local Episcopal diocese assumed control of the property. St James the Less had disaffiliated from the Episcopal Diocese of Pennsylvania in 1999 due to growing theological differences, and the diocese sued the parish in 2001 to seize the property. The Pennsylvania courts eventually decided that while the parish owns the property, there exists an “implied trust” in favor of the Episcopal Diocese of Pennsylvania.

"In the summer of 2008, the Standing Committee of the Episcopal Diocese of Pennsylvania voted to allow St. Mark's Church, Philadelphia, to adopt the Church of St. James the Less as a mission of St. Mark's. (Wikipedia)."

Posted by BobinSWPA at Thursday, 8 January 2009 at 1:39am GMT

"I think the case will be helpful to those in Virginia."

I don't know about that.

Virginia passed a law after the Civil War to accommodate churches - like the Presbyterians and the Baptists - that had split over slavery, so that post-war they could decide property issues. Neither of those churches is hierarchical.

Virginia also saw an Assistant Commonwealth's Attorney, who in the past, as a member of General Assembly, had tried to pass legislation designed to facilitate the alienation of property by absconders, file a brief on the side of the absconders. [I may not have all the legal terms down pat - am not a lawyer nor do I play one on TV.]

I think the intervention of an officer of the state was inapppropriate, especially given his affiliation with one of absconding groups.

If anyone is better versed in the teachnicalities and law here in Virginia, please weigh in.

Posted by Cynthia Gilliatt at Thursday, 8 January 2009 at 12:45pm GMT
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