Locking the Barn Door Before More Horses Get Out

Christ Church, Frederica, St. Simon's Island, is a beautiful old church in the Diocese of Georgia -- the same Diocese which is in a legal battle with another Christ Church, in Savannah, over the latter's right to withdraw itself from the Diocese and the Episcopal Church. While Christ Church, Savannah is (or was) the oldest parish in the Diocese of Georgia, Christ Church, Frederica is the second oldest, having been founded by charter from the State Legislature in 1808. (Indeed, both parishes preceded the creation of the Diocese, which did not come into being until 1823. And therein lies the problem, as you will see.)

It would appear that the Diocese of Georgia now wishes to lock up the barn doors before another of its horses gets out. Since, like Christ Church (Savannah), Christ Church, Frederica predates the creation of the Diocese, they share in common the question of just when, and how, the parish actually "acceded to" and became "bound by" the diocesan and national Church's governing documents. Georgia's Bishop and its Chancellor have been reviewing the bylaws of Christ Church, Frederica, and in an unusual move, have pre-approved certain changes which they would like to see made to them.

Christ Church, Frederica has been operating until now under a set of bylaws that dates from 1947. They were updated most recently in 1979 -- the year the Dennis Canon was adopted -- and as so updated, have served the Church well and truly ever since.

But they are obviously not "tight" enough for the current Diocese's purposes, which are to see to it that none of its parishes can ever make arguments again like those which Christ Church Savannah is currently making to the Supreme Court of Georgia. For example, here is what the 1947 (1979) bylaws say about the authority of the Constitution and canons of the Episcopal Church (USA) and of the Diocese of Georgia (my emphasis added):

ARTICLE I.

The Constitution and Canons of the Protestant Episcopal Church of the United States of America, and of the same Church in the Diocese of Georgia are hereby recognized as authority for the guidance of this Parish.

Well, now -- that certainly does not seem to make them binding on the parish, does it? Have a look at what the Bishop and his Chancellor have pre-approved for the parish to adopt as its "revised" bylaws (again, my emphasis added):

Article I

Christ Church Frederica (the “Church”) is a body corporate organized under the laws of the State of Georgia, and maintains an office at 6329 Frederica Road, Saint Simons Island, Georgia, 31522. As provided in and by a Charter of the Church, granted October 10, 1929, by the Superior Court of Glynn County, Georgia, the Church is a constituent part of the Protestant Episcopal Church in the United States of America (The Episcopal Church), and has acceded to, recognized, and adopted the Constitution and Canons of The Episcopal Church and the Constitution and Canons of the Episcopal Diocese of Georgia and has acknowledged the authority thereof. The Church is a Eucharistic community of Christians (the “Parish”), which has acknowledged the ecclesiastical authority of the Bishop of Georgia in the Diocese of Georgia (the “Diocese of Georgia”), and its accession, recognition, adoption, and acknowledgment of the same and of The Episcopal Church are continued in full force and effect by virtue of the adoption of these bylaws on the ___ day of ______, 2011.

Now the old bylaws contain a recital of their origin and history, as follows (with, once again, my emphasis added):

The Church was incorporated by an Act in 1808. An amendment to the Church Charter was filed in 1929 with the Superior Court of Glynn County, Georgia. Further amendments to the Charter dated December 18, 1947, January 3, 1952, January 17, 1958, August 12, 1974 and March 5, 1979 were filed with the Georgia Secretary of State, all of which served to amend the Bylaws of the Church, i.e., the bylaws were incorporated in the Charter. The Church adopted bylaws in 1947, but those bylaws did not include provisions from the Church Charter as revised through December 18, 1947, and were not updated with the charter amendments from 1952, 1958, 1974 and 1979. The attached bylaws are the 1947 bylaws with all of the revisions to the charter from 1947, 1952, 1958, 1974 and 1979 incorporated therein.

So we are to understand by this language that all of the previous changes made by the Charter revisions of 1947, 1952, 1958, 1974 and 1979 were incorporated into the current edition of the bylaws, as posted on Christ Church, Frederica's Website. But if that is correct, then why is there no language in the current bylaws saying what the proposed revisions say, namely, that

. . . the Church has acceded to, recognized, and adopted the Constitution and Canons of The Episcopal Church and the Constitution and Canons of the Episcopal Diocese of Georgia and has acknowledged the authority thereof . . . [and] has acknowledged the ecclesiastical authority of the Bishop of Georgia . . . .

If that were truly so, one would expect to see in the current bylaws the same language of adoption, accession, and acknowledgment of authority -- but one does not. Instead, there is only the insipid recital that the diocesan and national governing documents are recognized "as authority for the guidance of this Parish." That is not legally binding language, and apparently the Bishop of Georgia and his Chancellor recognize the potential problems it would create if the parish were ever to decide to withdraw from ECUSA.

Moreover, they want the current act of adopting the new bylaws to paper over any past ambiguities, as well. For they propose the following language at the end of the new Article I (quoted above):

. . . [Christ Church, Frederica's] accession, recognition, adoption, and acknowledgment of the same and of The Episcopal Church are continued in full force and effect by virtue of the adoption of these bylaws on the ___ day of ______, 2011.

Another proposed change to the bylaws would make them more difficult to change again, in the future. As you can see from looking at Article VII of the current bylaws, it provides that "Such amendment or new By-Laws shall require the approval of a majority of the Vestry and a majority of the eligible voters attending the Parish meeting." But the proposed new bylaws will require amendment by two-thirds of the vestry, in addition to approval by a majority of the communicants attending a specially noticed parish meeting for that purpose, who are in in good standing and over the age of sixteen.

A final substantive change made by the proposed bylaws would introduce extensive provisions for the "indemnification" of:

. . . any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative . . . by reason of the fact that he or she is or was a Warden, Vestry member, clergy, employee, or agent of the Church or is or was serving at the request of the Church as an agent or employee of another organization . . .

(There is a lot more than just this -- see proposed new Article VII in its entirety.) What is the need for this change? Well, only the Bishop and his Chancellor know their intentions, and as far as I am able to learn, they aren't saying anything other than to recommend that the congregation adopt the new bylaws in toto, as "pre-approved." However, as a parish Chancellor of considerable experience myself, I can say what I would tell my own parish if someone asked why we should have such an indemnification provision in our bylaws. I would tell them that this provision will act as a "poisoned pill" in the event that any future majority should unwisely decide to try to take the parish out of the Episcopal Church after the adoption of these new bylaws. Even though they were the majority, this Article would require them to pay all the legal expenses of ("indemnify") the minority in the event that anyone in the minority (a Warden, Vestry member, etc. -- see Section 2 of proposed Art. VII) successfully enforced a Dennis Canon trust against the Church, again as a result of the adoption of these bylaws.

(These indemnification provisions appear to be all the rage now in dioceses undergoing litigation as a result of withdrawals. See, for instance, my earlier post discussing similar provisions claimed to have been added by the remnant minority to the bylaws of the Corporation of the Diocese of Fort Worth.)

Without the proposed changes in the bylaws, the Diocese (and ECUSA, too) would have to make the same arguments they (admittedly, thus far successfully) have made to the Georgia courts: that a long course of usage and conduct by the parish have resulted in the creation of an implied trust in their favor on the parish's buildings and property. The terms of this trust, being implied by law, are nowhere spelled out in so many words, but they arguably include the provision that should the congregation ever vote to leave ECUSA for another denomination, it would have to forfeit its historic building and property to them.

As I have previously pointed out, in my critiques of the two Georgia decisions thus far in the Christ Church (Savannah) case, implied religious trusts were held by the United States Supreme Court in 1969 to be unenforceable in the civil courts. In the Presbyterian Hull Church case (which came out of Georgia!), the Court decided that inquiring into the terms of such trusts would require the courts to involve themselves in disputes over religious doctrine, to a necessary degree that was absolutely prohibited by the Establishment and Free Exercise Clauses of the First Amendment. It is indeed for this very reason that we are waiting to see how the Georgia Supreme Court will deal with the Court of Appeals' decision, which affirmed the trial court's ruling that Christ Church (Savannah) was subject to an implied trust in favor of the Diocese and of ECUSA, notwithstanding what the United States Supreme Court said.

So the legal implications of passing the Dennis Canon in 1979 continue to play themselves out in the dioceses of ECUSA still more than thirty years later. The Dennis Canon cannot even arguably come into play against a parish unless that parish has by some act expressly agreed to "accede to and be perpetually bound by" the Constitution and canons of the Church and of its local Diocese. It would appear (at least without being able to see the actual language of its Charter and the various revisions made to it, which are not available on the Web) that Christ Church, Frederica never made any such express commitment.

But the Bishop of Georgia, his Chancellor, and the vestry of the parish are in the process of seeing to that.