“This decision reaffirms the principle that the property of an Episcopal congregation must be used to further the mission and ministry of the Episcopal Church,” said Baker & McKenzie partner, Charles H. Dick, Chancellor of the Diocese and its attorney in the property litigations. “People should be free to leave the Episcopal Church if they wish, but they cannot take the property of the Episcopal Church with them when they depart.”
Consider the anomaly behind the words "the property of the Episcopal Church." It is like speaking of "the property of the association of all people on Facebook" -- the expression is utterly and totally meaningless. There is no property of any kind which belongs to the Episcopal Church (USA). The Episcopal Church (USA) has never owned any property since it was first established in 1789. As an unincorporated association of individual dioceses which was organized at common law, and not under the law of any one State, it cannot hold title to any property of any kind, because the common law does not recognize an association as a separate legal entity. Like the collection of people who have joined Facebook, it is just a group (of other groups called "dioceses"), and is not any one person in the eyes of the law.
The Episcopal Church (USA) thus has no property, can claim title to no property, and cannot even legally call so much as a pencil its own. (It has its DFMS to do that on its behalf -- and believe me, the DFMS also pays for each and every pencil used by ECUSA, because it holds title to all the Church's bank accounts. Unlike ECUSA, the DFMS is a corporation, which the law recognizes as a separate person, and which therefore can take title to real and personal property.)
The legal mind that can allow the words "property of the Episcopal Church" even to be uttered thereby shows all that is wrong with our legal system today, and why we keep getting rulings which are ever more worse and worse from the courts. For over two thousand years now, the system of laws established by the Romans, and taken up and adapted locally by each Western country ever since, has never recognized a voluntary association of people or things as a separate legal entity, or "person", on its own -- it is the modern uniform codes of laws which have finally changed the common law, and declared that associations organized in accordance with their provisions may sue and be sued, and hold title to property, in their own name. (Nothing in those laws provides any cover for associations never organized under the laws of any State to begin with. Just as a State which does not recognize common-law marriage is not required to treat people as married who live together in it for seven or more years, so a State is not required to recognize as a single legal entity a group of people who came together long ago at common law.)
But when the people associated on Facebook decide to acquire, say, a bicycle, or a book, or something else for their common good and enjoyment, they had better have rules already agreed upon among themselves which spell out which of them actually gets to ride the bicycle or read the book when, which is responsible for replacing the bicycle or book if it is stolen or damaged, and which of them can go into court on behalf of the whole group if necessary to reclaim the group's common property. The Episcopal Church (USA) has no such rules -- and for good reason, as I say, because it has never owned any property of its own, and so has not needed to have any such rules.
So please, is it too much to ask of lawyers that they not debase the law, and make people think it means something else when it does not? When there is a perfectly good reason why the Episcopal Church (USA) has never owned any property of any kind since it began 220 years ago, how does it advance public understanding of the actual issues involved to assert that "no one can take the property of the Episcopal Church with them when they depart"?
I tell you what: let every withdrawing parish offer the Episcopal Church (USA) a terrific deal. The parish should offer to return to ECUSA its property in exchange for ECUSA agreeing that the parish can have the parish's property. That way everyone can end up with what is properly theirs, and there will be no need for any further lawsuits. Problem solved!