Saturday, November 14, 2009

A Deal That ECUSA Cannot Refuse

The law must mean nothing any more. Up is down; black is white; and all property of Episcopal parishes everywhere is now the "property of the Episcopal Church." Consider this quote, taken word for word from a press statement issued by the Diocese of San Diego after yet one more California trial court judge ruled that he was not interested in the facts or considering the parties' different versions of them, and that he would give the victory to the Episcopal Church (USA) as a matter of law (emphasis added):

“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!


  1. Doesn't the common translation of Ein' Feste Burg conclude with the words:

    Let goods and kindred go, This mortal life also;

    The body they may kill: God's truth abideth still,

    His kingdom is forever.

    As I've mentioned elsewhere, the proper response should be, "You want the property? We'll give you property until you're sick of it and it comes out your nostrils! (...and by the way, since you can't use the power of the State to extract tithes, good luck heating and maintaining the buildings!)". Heck, all you have to do is leave the buildings in Winter without draining the pipes. Once the oil runs out and the pipes freeze the Diocese will have a pretty problem on its hands!

    If the courts are so obtuse, then may it be as it was in Numbers 11:31-34:

    Now a wind went out from the LORD and drove quail in from the sea. It brought them down all around the camp to about three feet above the ground, as far as a day's walk in any direction.

    All that day and night and all the next day the people went out and gathered quail. No one gathered less than ten homers. Then they spread them out all around the camp.

    But while the meat was still between their teeth and before it could be consumed, the anger of the LORD burned against the people, and he struck them with a severe plague.

    Therefore the place was named Kibroth Hattaavah, because there they buried the people who had craved other food.

  2. How about then, since all parish property is now owned by ECUSA, that each parish & hence each diocese property send all bills (utility & maintenance) to 815 for payment. Since 815 is now landlord, they are responsible for all the upkeep.

  3. Our present situation makes a mockery of the notion of "common" law in the USA. Has anyone compiled a list of the variations of interpretations of this one matter in courts across the country? Some state judges buy the claim that TEC is hierarchical and its rules apply (deference), apparently including its own interpretation of its own rules; others say to use the same rules for everyone (neutral principles) (i.e., whose name is on the deed?) and all the possibilities in between. And why can't TEC be forced to at least use the correct name in the lawsuits (i.e., DFMS)?

    I would really like to see a list, by states, of who holds what legal theory in the courts. Is there no chance that this could actually be settled by the SCOTUS?

  4. You propose a most equitable exchange, Mr. Haley, and not even subject to taxable boot, real estate brokerage fees, or even nit picky miscellaneous closing costs........would not surprise me if such a transaction were actually proposed one day in writing (plain language, of course) at a most opportune moment.

    Thank you as always.

  5. Dear Mr. Haley,

    You write:

    "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…."

    Would not a more precisely correct statement be "that a State which does not recognize common-law marriage is not entitled to treat people as married…," unless that State changes its statutes in some manner and particulars in a way which conform to the Constitution of that State?"

    Pax et bonum,
    Keith Töpfer

  6. I second David J's comment. Brilliant!

  7. Ricardo, ECUSA cannot use DFMS as its proxy because DFMS is not the "beneficiary" named by the Dennis Canon.

    Martial Artist, how much of the common law a State adopts is up to its Legislature and to its courts. In our example, it's the couple who would not be entitled to have their common-law marriage recognized, as a matter of constitutional right. Nothing prohibits or restrains the State from doing so -- as a sovereign, it may choose what parts of the common law it wishes to adopt.

    Thus, while a State may by statute abrogate the common law and allow an unincorporated association organized in that State to sue or to hold property in its own name, that privilege would apply to one whose rights and privileges are created by the statute -- unless the statute expressly indicated that it abrogated the common law as to all associations, regardless of their provenance.

  8. Mr. Haley,

    I believe you have essentially confirmed my assertion, i.e., the State would have to adopt a statute allowing it to recognize as valid a "status" (in this case, common law marriage, henceforth CLM) of persons coming from CLM states, that it would not grant to its own citizens. This is what I, perhaps unclearly, was attempting to state via the phrase "unless that State changes its statutes in some manner and particulars in a way which conform to the Constitution of that State."

    Is it not the case that, without such a propertly adopted statute, the non-CLM state, would not have the legal authority to confer a benefit of marriage on someone who is married only by virtue of CLM from a state which does recognize CLM as valid? Or at least, not without subjecting itself to civil liability from its own residents not similarly recognized. It seems to me that doing so without statutory authority would create a violation of equality before the law between the CLM state's own residents and those coming from a non-CLM jurisdiction.

    I apologize for being less clear than was my desire and intent.

    Pax et bonum,
    Keith Töpfer