Tuesday, May 12, 2009

A Tale of Two Parishes (I): The Questions

Here is a tale of two parishes, on either side of the country.

The first, the Eastern one, traces its roots back to the eighteenth century, when its founders considered themselves as part of the Church of England. After the Revolutionary War, however, the Anglican-despisers in the legislature, who nursed a desire for revenge because of all the years they had been taxed by the colony to support a church they refused to attend, passed a law confiscating the parish's property on behalf of the newly formed State. The reasoning was appealing to the general populace: before the War, the government had supported the parish and paid the minister's salary out of the taxes it collected from everyone. Never mind that the land itself had been donated by a pious farmer in trust for the parish, and that the original building had been erected with slave labor; both had belonged to the State church, and so the State could now dispose of the property.

Following a sale of the property at auction the successful bidder, again using slave labor, tore down the decaying church building and planted a field of tobacco. But on his death he left no heirs to carry on the farm, his slaves were sold, and the land went fallow for years. Eventually another group of wealthy slaveholders purchased the land, cleared it with more slave labor, and erected a graceful new church, complete with pillars and portico. The land and the building were again placed in the hands of trustees, to hold for the use of "the parish of X and its successor congregations in the Diocese of Maryland in the Protestant Episcopal Church of the United States of America." And so the property has come down to today, passed on from one board of trustees to the next, each one choosing its successors.

The second parish was founded in southern California, only in the 1950's. A subdivider with thousands of acres land, some of it with ocean frontage, learned from his attorney that he could receive a bonus density in his development in exchange for donating a site for charitable purposes (meaning he could create more housing units for sale). The developer was not a churchgoer, but he was a regular contributor to the evangelicals he watched every Sunday, on that newfangled invention called television. One of them, who spoke with a cultured Oxford accent that set him apart from the Southern drawls of all the others, captured the developer's fancy. He had his attorney contact the evangelical, who happily accepted the donation of a prime piece of land for his church. It was not right on the ocean, but it was reasonably close.

The British-born evangelical approached his flock, and quickly raised enough money to put up a modern church building on the land. With the growth in the area due to the huge subdivision around it, the new church flourished and grew in just fifteen years to be a decent megachurch, with an average Sunday attendance of 7,000. The church acquired some of the lots around it, and expanded its campus considerably. It even managed to acquire two prime oceanfront lots, which remained vacant until an expansion plan was approved by the church's board in 1998.

By that time, the Oxford-trained evangelical had long since retired and passed away, but his hand-picked successors carried on. There were no more English accents from the pulpit, but the megachurch offered a broad spectrum of services designed to suit all tastes. One service every Sunday used a worship booklet which touted its derivation from the 1662 Anglican Book of Common Prayer, although its orthography and grammar had been modernized into current standard English. This service competed well with the more raucous and traditionally evangelical ones that featured small combos and electric guitars; it used only the Church's magnificent pipe organ, and had a choir that performed Anglican chant and elaborate anthems. Once a month there would be a solemn high mass with thurifers and a children's handbell choir; it grew in popularity over the years, especially for those who liked to listen to splendid music.

The church was fully congregational, and not a member of any national denomination. It achieved its Sunday numbers by managing to be all things to all churchgoers. But over time, the sheer upper-class appeal of all the smells and bells of the "Anglican" service attracted its share of the wealthiest members of the church. And they realized that for all its attractiveness, the church and its services lacked one essential ingredient, which they could not supply for any amount of money: a genuine priest in Anglican orders to say the Holy Eucharist, and to pronounce the absolution of their sins. So they began to make discreet inquiries.

Now imagine you are an attorney in a prominent national law firm, with offices from coast to coast. Your specialty is First Amendment issues and the law of religious organizations. You are in the Washington, D.C. office, but you travel frequently to consult with and assist other offices in handling clients and cases involving churches and their property. And as it happens, both of these disparate churches have come to you as clients.

The parish on the East Coast, as part of the Episcopal Diocese of Maryland, wants to know whether their property is subject to a trust in favor of its Diocese and the national church, by virtue of the "Dennis Canon" enacted in 1979. You begin your analysis by examining the diocesan Constitution and Canons, and are surprised to find that there is no provision in any of them by which the Diocese "acceded" to the national Constitution and Canons, or even which recognizes their paramountcy. Thus your question becomes: do the terms of the Dennis Canon even apply within the Diocese of Maryland?

The parish on the West Coast is, as I mentioned, not a member of any national denomination. However, the wealthy members are now attracted to the Anglican tradition, and have secured the agreement of the rest of their congregation to purchase from them the two oceanfront parcels and their beautiful church building. They want to know, among other things, whether they can retain ultimate control over their property if they join the Diocese of Los Angeles, or whether they should instead take up with the newly emerging Anglican Church in North America. Your review of that diocese's Constitution and Canons quickly establishes that not only has it acceded without qualification to the national Constitution and Canons (Constitution, Art. II), but that it also requires the following of any parish seeking admission:
A written application for the organization of a new Parish shall be made in the following manner:
(a) Applicants shall be fifteen or more confirmed communicants in good standing at least eighteen years of age, resident in the locality or community within which the proposed Parish is to be located.
(b) Evidence shall be provided that the proposed Parish is able to maintain a Rector on a salary not less than the standard minimum established by the Diocese and to meet its proportionate share of Diocesan assessments, quotas, life and health insurance, and annual premium to the Church Pension Fund.
(c) The site of the proposed Parish shall be described.
(d) The application shall include a promise and declaration by the applicants that the proposed Parish shall be forever held under, and conform to and be bound by, the Ecclesiastical Authority of the Diocese, and The Constitution and Canons of the National Church, and The Constitution and Canons of the Diocese.
The West Coast parish will have no problems meeting the first three requirements. But their question to you is: what will be the effect of their submitting the "promise and declaration" required by the fourth clause? They are very cognizant of the recent decisions by the California Supreme Court regarding the enforceability of the Dennis Canon in the State by virtue of the Legislature's enactment of Corporations Code section 9142 in 1981, just after the Dennis Canon itself was adopted---or so the Church claims; they have heard that there are questions about its passage, and want to know whether they should pay you to look into them. Relevant to this latter point, they inform you that in their preliminary discussions with the diocesan office, they have been told that the bishop might sign an appropriate letter waiving any right to enforce the terms of the Dennis Canon against the parish property. Apparently there is some precedent for this having been done in an earlier case (see pgs. 5 and 12 of the link), which also involved a parish whose annual contributions to the diocesan coffers were not inconsiderable. Their specific question to you is: would such a signed waiver be enforceable against the national Church? And if there is no way to guarantee this, would they not be better off negotiating for admission into ACNA---which (as they understand it) specifically renounces any claims to parish property?

Two parishes, two problems: very different, and yet still connected through the terms of the Dennis Canon and the place it plays in the structure of the present-day Episcopal Church (USA). In subsequent installments of this post, I shall tell you how I would proceed to analyze the questions thus presented, and the resulting advice I would give. For now, though, I want to invite readers, whether canon lawyers or not, to offer their thoughts on one or the other of the two cases---or both, if you would like. If you are addressing the facts of a particular situation, I ask that you do so in a separate comment for that situation, so that we can keep the arguments sorted out. If you are comparing and contrasting the two, then it is fine to do in the same comment. But otherwise, please keep them separate; you may use the shorthand references "East Coast" ("EC") and "West Coast" ("WC") for each of them, if you wish. So have at it---let's make this a learning experience for all!


  1. If I were a vestry member of the West coast church, I would not trust a "waiver" from the Dio of LA even if legal advisors said it was okay and it was signed in blood.

    I would ask to look next at the criteria for joining ACNA.

  2. East Coast parish: yes, the Dennis Canon does apply, unless you can somehow get a Maryland court to adopt the McCall "dioceses are the top of the hierarchy" or the "the courts shouldn't enforce the Dennis Canon because it didn't actually pass" theories.

    For just one relevant bit of evidence, see Diocese Md Canon 2-110(2) (every parish must agree to conform to TEC and diocesan constitutions and canons). Speaking of which, what do we know about this parish and that provision?

    West Coast parish: yes, the Dennis Canon can be waived, as can almost any right. But you don't want to rely on the letter for 2 reasons. First, you also want a resolution of the diocesan Standing Committee, since in many dioceses, it is the Standing Committee's approval for sale/encumbrance of property that's needed. Second, you want a letter from the PB also pledging not to enforce. The Bishop may have the authority to bind the diocese to a waiver, regardless of what other diocesan authorities say. But, IMHO, it's unlikely that a court will find that he can waive TEC's canonical provisions. And preferably, you want these documents to use the word "waiver" (or some form thereof).

    No, they shouldn't pay you to look into the Dennis Canon's passage. Courts aren't going to buy that argument. Also, the most that those who have investigated to date have been able to say, having seen all the relevant records, is that it's unclear. Barring some new treasure trove of records, there's nothing more to investigate.

    OT side-note: the characters I had to type in for the word verification were "herumf". A great thing for the site of a "curmudgeon."