Saturday, December 11, 2010

Constitutional Crisis in ECUSA (Pt. VI): The Dennis Canon

This sixth post in a series covering the constitutional crises that presently engulf ECUSA will take us into the labyrinths of the Dennis Canon (text may be read at the link). "Adopted" illegally and by stealth on the next-to-last day of General Convention in July 1979, it has been embroiled in controversy ever since it first came to light in litigation, after lying dormant for some twenty years. One of the first cases in which it was asserted resulted in a ruling that the Canon was not self-executing, and could not create a trust in church property without the written consent of the parish, as the property's owner. But in many other court cases, the Canon has withstood attack because of the courts' deference to obiter dictum, for which former Justice Blackmun must take the blame.

It is the constitutional aspect of the Dennis Canon that interests us in this post -- not its constitutionality under federal or state law, but under the constitution of ECUSA. The questions of its constitutionality group themselves into topics, each of which is addressed below.

1. Controversy Surrounding the Passage of the Canon

Father George Conger personally examined, in the Episcopal Church Archives, all the original papers relating to the passage of the Dennis Canon at General Convention 1979. He first wrote up his findings in a post on his blog, which has links to his scans of all the contemporary documents. Although he could not find the crucial piece of evidence which would have definitively proved that the House of Deputies voted for its final passage on the next-to-last day, he concluded that there was circumstantial evidence that it did so. He subsequently submitted his findings and documentation in the form of an affidavit which sought to raise a disputed issue of fact on the Canon's validity in the New York case involving Church of the Good Shepherd in Binghamton. (I discussed his affidavit and its evidence in detail in this prior post.)

Subsequent to that affidavit, experts in canon law have researched the issue further, and have turned up more disturbing evidence that if the Dennis Canon was voted on by the House of Deputies on the next-to-last day, it was passed unconstitutionally. The reason is that any such action on the Dennis Canon would have required a halt in the day's business to approve a suspension of the House's Rules, which at the time required as follows (emphasis added):
22. Except by a vote of two-thirds of the members present, no new business requiring concurrent action shall be introduced in this House after the third legislative day of its session and no matter which originated in this House and which requires concurrent action by both Houses shall be considered by the House after the ninth legislative day.
What eventually became the Dennis Canon originated in the House of Bishops as Resolution D-24, introduced by the Rev. Canon Walter Dennis of New York. (Even though it was a member of the House of Deputies who proposed it, the measure was assigned by agreement to the House of Bishops' Committee on Canons for initial action.) It was amended in that Committee, and when it came to the floor, the Bishop of Kentucky proposed a further amendment to make it effective on the day that it passed -- a highly unusual provision, to say the least, since it meant the Canon would take effect with no advance notice or warning of any kind to the dioceses and their eight thousand parishes. But the amended version was not passed by the Bishops until the fifth legislative day (September 13), which would have been the first business day on which the House could have been asked to consider the Canon in the form as it had been amended by the Bishops, i.e., as "new business" in that House which required concurrent action.

Such a late introduction of the measure to the House required a vote by two-thirds of its members for it to be considered in accordance with Rule VI.22 just quoted, but there is no record of any such vote being taken; the measure was simply referred to the House's Committee on Canons. It was not approved by that Committee until September 17 (Report No. 32; see page 3 of this link), which was the eighth legislative day. Even if the Resolution had become "new business" in the House when it was received on the fifth day, therefore, its consideration on the tenth day would again have required a two-thirds vote of the Deputies on the floor. The day's agenda shows that no such vote was scheduled, and there is no evidence whatsoever that any such suspension of the Rules ever occurred.

Nevertheless, the Canon made its way into the printed version of the Constitution and Canons following the 1979 Convention, and there it has remained ever since -- to the utter shame and disgrace of the Church. Why shame and disgrace? Because since the year 2000, the Canon has been the occasion of more litigation, and more money wasted all out of proportion to the values of the individual properties at stake, than any other single act of the Church. Let us turn to what the lawsuits are all about.

2. Controversy Over the Canon's Interpretation and Application

On its face, the Dennis Canon purports to declare a trust which exists on every single piece of Episcopal parish-owned property (both real and personal -- from the dirt and the landscaping to the hymnals and prayer books) across the full extent of the Church. (I am unaware of any attempts by foreign dioceses in ECUSA to enforce the Canon.) But the trust is not an ordinary trust, because the same language that purports to create it goes on to provide that the parishes may use their properties in any way they choose -- they may throw away the old hymnals and replace them with new ones; with diocesan approval, they may even sell the parish property and move to a new site.

Every trust has to have a trustee. The Dennis Canon does not name the trustee as such, but leaves the implication that the Diocese to which a parish belongs is the trustee. Unlike a normal trust, however, the trustee in this case does not hold and keep actual possession of the property, or take care of it for the benefit of the beneficiary. Instead, the legal owner of the property retains title and possession to it, which is why the Dennis Canon never shows up on any certificate or chain of title -- and which is also why most parishes remain blissfully unaware of the trust's existence.

Until, that is, they vote to leave the Diocese to which they belong. If that happens, the Dennis Canon implies (but does not literally say) that their right to occupy and use the property as its legal owner terminates. And in that way, the Dennis Canon operates not like a trust, but rather like a defeasible fee -- a form of ownership which is taken upon a given condition, and which terminates when the condition no longer holds. (Many English country estates, for example, were held on condition that their owner leave a male heir -- like Mr. Bennett's home in Pride and Prejudice.)

However, in law, a defeasible fee is created by an original grantor, who owns the land in question, and who then deeds it to a grantee to have and hold the property on condition that something happen, or remain always the same -- such as "use the property for church purposes." If the condition subsequently fails, then depending on how the grantor's deed was worded, one of two things can happen: (1) the land reverts to the grantor (or his heirs, if he is no longer living), or (2) the land passes automatically to a third party as designated by the original grantor. (Example: A deeds Blackacre to B "on condition that he use it for a school, but should such use ever cease, then C and his heirs shall have the right to enter and take possession of Blackacre.")

The Dennis Canon meets none of these criteria. There is no original conveyance to the parish on any particular condition; most grants of land to Episcopal parishes are grants in fee simple absolute -- i.e., upon no conditions whatsoever (check your deeds and see). Yet the Canon has been held by many courts to establish a condition on the parish's fee simple title -- in other words, the Canon (according to these courts) in one stroke automatically converted the title of 8,000+ parcels of property across the nation from fee simple absolute into a fee simple on condition that the parish remain part of the Episcopal Church (USA). The Canon does not name the person or entity who is entitled, on the failure of the condition, to enter and take over the property -- but the courts again have come to the rescue, and held that the diocese in which the parish is located can do so.

How can this be? The reasoning, thanks to Justice Blackmun's obiter dictum in Jones v. Wolf, runs like this: If a national church is organized so that it governs and controls all of its inferior branches, then it can express a trust in its constitution, and the member parishes being subject to the constitution, will become subject to the trust, "provided it is expressed in legally cognizable form." The Episcopal Church's Dennis Canon, however, fails the test on each of these points: (a) there is no "national Episcopal church" which "governs and controls" all Episcopal parishes; (b) the trust is not expressed in ECUSA's constitution, but only in its canons; (c) it is not, as just explained, expressed in the "legally cognizable form" of a trust; and (d) individual parishes are subject to diocesan canons, not to national ones. (The clergy are subject both to national and to diocesan canons, but that is because they are ordained into the Church. Parishes are members of the diocese to which they belong, and only dioceses are members of ECUSA. General Convention, for example, has no power to legislate the terms of individual vestry members.)

So the Canon ought to be a non-starter in the State courts, but as regular readers of this blog well know, the courts are none too well informed on the subtleties of church canon law, and are all too susceptible to the blandishments of ECUSA's attorneys about its being a "hierarchical" church, with total control from the top all the way down. There are now about fifteen cases which ECUSA's attorneys can string-cite together as "precedent" on that point. They are a disgusting monument to the ignorance of the law, and not exactly the courts' finest moment. ("If the law says that," Charles Dickens' Mr. Bumble famously observed, "the law is a ass!")

Application of "neutral principles of law" ought to resolve the matter. Under that doctrine, ECUSA is held to the same standards as any other property owner: if he wants to create a trust on property he owns, he signs a writing to that effect, and thereby sets up the trust. But here again, the courts (and ECUSA's clever attorneys) have found a way to evade the problem of not having a writing signed by the owner of the parish's property: they argue that when the parish agreed upon its incorporation, or upon its admission into a diocese, to be "bound by" or "subject to" ECUSA's Constitution and Canons, it thereby "signed" the required writing to agree that the Church (as its agent, ostensibly) could place its property into a trust for the Church's benefit. What "neutral principles" was intended to exclude coming in the front door -- the idea of a "hierarchical" church being able to bypass ordinary principles of property law -- has in that way come in by the back door.

A few courts -- most notably the Supreme Court of South Carolina -- have seen through the scam, and have refused to give it any effect. But on the whole, the legal record is a sorry one, unless you are the attorneys for an unscrupulous church that is more interested in punishing dissenters than it is in following the precepts of St. Paul. ECUSA, in short, rejects Paul's teaching on that point (as it does with others of his teachings, as well), and is unashamed to haul fellow Christians -- the majority of whom actually paid for the properties, and kept them up for so many years -- into court.

3. Is the Dennis Canon a Proper Exercise of the Powers of General Convention?

This is the crux of the matter: how was General Convention granted the power to legislate a trust upon individual parishes' property?

One answer -- which is no answer at all -- is to say that it was enacted by General Convention, at which the parishes were represented by their lay and clergy deputies. But it was illegally enacted (see section 1 above), and measures which are passed in violation of the rules do not take effect. Moreover, even if the deputies had followed the rules in passing the Canon, that still does not answer the question: where did they get the authority to enact such a Canon?

Let me bring the issue into sharper focus by positing an extreme example. Suppose a canon were passed in the stealth of the night (i.e., illegally, with no one noticing or objecting to the illegality) at General Convention which said:
Every Episcopal parish church shall be painted off-white, with gray trim, and its front door shall be painted red.
Where would the General Convention's authority to pass that canon come from? Do you see what I mean? Either General Convention is a body with delegated powers, or else it is a body of unlimited powers. As those who will take the trouble to read this series of posts (click the link for Part I) will learn, General Convention most decidedly is not a body of supreme and unlimited powers, but exercises only those powers which have been delegated to it. There were no powers delegated by the parishes directly to General Convention; none whatsoever. Instead, they delegated some powers to their dioceses, and then those dioceses delegated some of their powers to General Convention. The powers so delegated are to be found not in ECUSA's canons, but in its Constitution.

You will search ECUSA's earliest and current Constitutions in vain for any delegation of authority to dictate how Church property is to be held, purchased, encumbered, or sold. (When the first Canon on that topic was adopted in 1868 -- the predecessor to current Canon I.7.3 -- it provided, as it always has since, that the sale or encumbrance of parish property required the approval of the ecclesiastical authority in the diocese, subject to such exceptions as the diocese might provide. The Canon thus was not an exercise of a national delegated power at all, but instead a recognition, or declaration, of where such power lay: with the individual dioceses.)

The problem is that ECUSA itself has no court or other body with the power to interpret its Constitution, or to declare a canon "unconstitutional". For that reason, an unconstitutional Canon unfortunately has been found enforceable, and enforced, in secular courts -- and that only because the secular courts are barred by the First Amendment from entertaining questions about the ecclesiastical constitutionality of Church legislation. (Indeed, I have contemplated recommending to my fellow chancellors that the next suit brought by a bishop to enforce the Dennis Canon be met with this objection, based on the words of Canon IV.14.2: "No Member of the Clergy of this Church may resort to the secular courts for the purpose of interpreting the Constitution and Canons, or for the purpose of resolving any dispute arising thereunder . . .". Someone also ought to bring a presentment against the bishop for violating the Canon.)

So the Church is, in the end, whatever it says it is -- which is exactly how God intended it to be. If a Church wishes to pursue all manner of ungodly goals and purposes, that is the kind of church it will be. We are witnessing today the spectacle of a Church tearing itself apart for the sake of unconstitutional power being asserted by those in a position to do so. Few are trying to check the powers so asserted; most are going along with the flow, like blind sheep.

History has not been kind to institutions which betrayed their founding principles. The Roman Republic succumbed to the Caesars, because the latter simply marched in and took over. Later, the Roman Empire tore itself apart through civil wars, and a resulting inability to defend itself -- because it had run out of money to pay for a sufficient defense force of trained soldiers. Instead, the last emperors saw to their own safety and security first -- for all the good it did them in the end.

The powers at 815 Second Avenue have taken over the present-day Episcopal Church (USA). Questions of constitutionality do not even impinge upon them; they simply do what they want to do, and dare anyone to oppose them. Meanwhile, they are running through the coffers at an alarming rate, and borrowing is at an all-time high. (As history again demonstrates, keeping an empire up and running is a very expensive proposition.)

The Dennis Canon has served as the Trojan Horse, if you will, of the Episcopal Church (USA). It was a last-minute grab for unconstitutional power -- seduced into being by the ill-considered blatherings of one long-winded judge, and rushed through the church legislature without the slightest attention to substance or procedure. Like its counterpart in Troy, it lay quiet and dormant until the time when the forces within it could spring out as a total surprise to the parishes they attacked. Aided and abetted by unwitting secular courts, the element of surprise has carried the day ever since. But the longer the Church relies on it to maintain power, the weaker the Church itself becomes.

"All power corrupts, but absolute power corrupts absolutely" (Lord Acton). Look in the mirror, ECUSA -- your current leadership is corrupt, and is on its way to being absolutely corrupt. And corruption is the decay that brings on decline.


  1. The Dennis Canon violates the Statute of Frauds, does it not?

  2. In South Carolina and one or two other states it definitely does, yes, Sactohye. And in most other states, it should, as well.

    But in California and New York, the courts have interpreted two state statutes as, in effect, giving statutory force to the trusts declared by the Canon. How this special favor bestowed by the courts (or the legislatures) on ECUSA is not a violation of the First Amendment's Establishment Clause is a question still to be addressed by the United States Supreme Court.

  3. Sometimes this website is better legal fantasy than Grisham.

  4. Glad you enjoy it, DavidH -- these days, as Grisham chronicles in King of Torts, The Firm and other novels, anomie and avarice don't have to look far to find their champions.

  5. DavidH, I just noticed this post at Volokh Conspiracy which I think comes close to explaining why we disagree so often.

    This is for the most part a normative blog; I am not so much concerned with describing what the law is on a given point, as what I think it should be. For you, as a practicing attorney, it may be more important or valuable to stick with a descriptive reading of the law.

    To be sure, the advice I give my clients is based on my descriptive views, as well. I just do not blog about it, because what fires me up to write in my spare time is not what the law is, but what in my view it ought to be.

    You may see things still otherwise, of course (perhaps your views are just as normative, and happen to be opposite to mine), but that explanation of our differences works for me.

  6. Excellent information. Many thanks.

    The comparison to the defeasible fee is brilliant.

    Let's hope responsible attorneys representing individual parishes will act appropriately as fiduciaries for their clients and use information you have provided to the benefit of their scripturally based Anglican principals who have built, paid for, and maintained their real and personal property through the years.

    Thank you again.

  7. DavidH,
    "Sometimes this website is better legal fantasy than Grisham."
    An ad hominem attack does not constitute a rebuttal.

  8. Glad that you have put this information on your blog. After reading this, I still find it amazing that many people are convinced that the Dennis Canon was properly voted on, etc. Very glad that this state (South Carolina) could see thru the "scam" that is the Dennis Canon.

    I agree. TECUSA is in a death spiral. Corrupt leadership does not help except if death is the goal.

  9. To me, valid or not, the Dennis Canon is a red herring. Most Episcopal parishes were established with some sort of trust language. The Dennis Canon was trying to fill the cracks.

    I think in situations like New York, the reason the statute is constitutional is because the state had already provided the terms by which a parish could incorporate within the state. If a parish decided to take a state charter as a nonprofit, it agreed to hold the property in trust. The decision was simply made the default choice of anyone who gave property into the denomination in New York State. It is not Establishment because there is the choice about whether or not to give or incorporate under those terms.

    I don't know about California's adoption of Dennis Canon language, but from what I have read, all religious societies that incorporate do so under one, standard, nonprofit law. (The same is true in Pennsylvania.)

  10. In the original colonies, the law followed the English model, where religious organizations could not hold any property on their own, but had to do so through individual trustees. And until the Supreme Court's decision in Hull Church (as explained in this post), courts applied trust doctrine to determine which of two factions was closer to the religion of the denomination at the time the property was gifted.

    However, the Supreme Court ruled that approach unconstitutional in 1969, and ever since churches have tried to rely on provisions like the Dennis Canon, as a shortcut for a more orthodox procedure, such as getting the individual parishes' written consent to a trust. The arrogance of unilaterally imposing a trust against their will, and the hubris of taking to court all those who disagree with its imposition, has led to the decline of those churches.