Friday, September 30, 2011

Connecticut Supreme Court Enforces Dennis Canon

Today the Connecticut Supreme Court upheld the Dennis Canon against a challenge offered by the rector and certain officers and vestry members of Bishop Seabury Church in Groton. The effect of the decision, which affirms a 2010 summary judgment granted by the trial court, is to require the defendants to turn over all of the real and personal property of Bishop Seabury's to the Diocese of Connecticut and the parish under the direction of the Rev. Canon David Cannon (this case is all about canons and cannons), whom the Bishop of Connecticut appointed as priest-in-charge following the departure of the prior rector and congregation to join CANA. (The parish, with its rector and vestry, had been using the Church pending the decision on the appeal, and so now they will have to vacate it.)

The victory by the Diocese may prove to be another Pyrrhic one for the Episcopal Church (USA), which has spent around a million dollars litigating the case. It is unclear whether the remnant and their priest-in-charge will have adequate resources to maintain the buildings and all the related expenses of a full parish. And it is also not clear at this writing whether the case is finally over: the defendants have 90 days within which to ask the United States Supreme Court to review the decision, as I will explain below.

There are actually two opinions today by the Connecticut Supreme Court; I have linked thus far only to the main one. The second decision affirms the trial court's rejection of a motion by the full former congregation of Bishop Seabury's, with some 280 voting members out of a total of about 700, to be allowed to intervene in the case to defend their title to the property. The Supreme Court decided that the interests of the larger group were adequately represented in the principal litigation by the twelve individual defendants.

There is little to say about the main decision, because although it is lengthy (the defendants having raised some fifteen separate defenses), it does not say anything that is new under Connecticut law -- except to establish (paradoxically) that Connecticut courts will be required to decide all future church property cases using "neutral principles of law." Listen to how the Court pats itself on the back for deciding in favor of the latter, before then going on and allowing a national Church to impose a trust on all local property by the enactment of a single canon:
Having considered these differences, we conclude that the neutral principles of law approach is preferable because it provides the parties with a more level playing field, and the outcome in any given case is not preordained in favor of the general church, as happens in practice under the hierarchical approach.
The decision repeats all the usual errors about the "hierarchical" nature of the Church -- while purporting to decide the merits on grounds (neutral principles) which should, as the Court itself acknowledges at one point, render the character or polity of the underlying church itself irrelevant. By reading Justice Blackmun's infamous dictum in Jones v. Wolf as actually binding the civil courts, however, the opinion reaches a new nadir in constitutional interpretation:
Jones thus not only gave general churches explicit permission to create an express trust in favor of the local church but stated that civil courts would be bound by such a provision, as long as the provision was enacted before the dispute occurred. We also reject the view that the Dennis Canon represents a ‘‘self-serving declaration of trust’’ because, as we previously noted, Parish members agreed to be bound by the constitutions and canons of the Episcopal Church and the Diocese in 1956 when they affiliated with the Episcopal Church, and, as a result, their interests are in harmony with those of the Episcopal Church and the Diocese.
What a statement: to find that the interests of the parish "are in harmony with those of the Episcopal Church and the Diocese", just because on joining the Church in 1956, members of the parish agreed to be subject to the national and diocesan constitutions and canons! Courts regularly indulge in what are called for this very reason "legal fictions", but this last one by the Connecticut Supreme Court bids fair to trump any I have seen expressed before. (And that includes the one in Mr. Dickens' Oliver Twist, when Mr. Bumble was informed that the law "assumed" that a husband was in control of his wife. "If the law presumes that," Mr. Bumble famously responded, "then the law is a ass.")

Thus Connecticut now joins California and New York as States of safe haven for ECUSA's ambitions to have all parish property everywhere under its thumb. As readers of this blog will be aware, the highest courts of the latter two States have each professed to follow "neutral principles of law" on the surface, while in reality deferring to the so-called "hierarchy" of the Episcopal Church (USA) underneath. The result is to grant to ECUSA a favored status under State law, because the decisions mean that only nationally structured churches such as ECUSA and PCUSA can qualify for special treatment. Connecticut now joins those two other States in that approach.

While normal people in all three States have to comply with the Statute of Frauds in order to create a trust in real property, these special churches do not. Under the Statute of Frauds as recognized in all fifty States, a trust in real property can be legally created only by a writing signed by the actual owner of the property. But for the special churches mentioned earlier, all they have to do to create trusts in the properties of all their individual parishes is to enact a national rule, or canon -- and for ECUSA, that is its Dennis Canon.

Selecting out some churches for preferential treatment under State law harkens back to the colonial days, when every citizen was taxed to support local parishes of the established Church of England, regardless of whether they happened to belong to those parishes or not. This was one of the reasons for the enactment of the First Amendment as part of the Bill of Rights: it expressly prohibited Congress from "establishing" any religion -- which would include favoring one or more over any others. Later on, in subsequent decisions, the United States Supreme Court extended the reach of the First Amendment to all of the fifty States, as well.

Thus, on the face of things, the interpretation and effect given to the Dennis Canon by today's decision would appear to be one more grant of preference in favor of a "hierarchical" national church, under the guise of applying principles which are scarcely neutral. The Connecticut Supreme Court had no difficulty in binding Bishop Seabury to a little-noticed canon enacted some twenty-three years after it joined the Diocese and acquired its property. Only in such churches, where the national canons are deemed "binding" on all of its lower elements from the moment they take force, can a group be held to have agreed blindly, years in advance, to whatever the national legislative body might see fit to enact many, many years down the road:
When the Dennis Canon [of 1979] is considered together with the application submitted by the members of the local congregation in 1956 for admission to the general church as a parish and with other church documents, it is clear that the disputed property in the present case is held in trust for the Episcopal Church and the Diocese. . . .

Thus, in agreeing in 1956 to abide by the constitution and canons of the Diocese, members of the congregation also agreed to abide by the constitution and canons of the Episcopal Church, including the subsequently enacted Dennis Canon. There is no provision in the constitution and canons of the Episcopal Church or the Diocese expressing an intent to the contrary or excusing a parish, either explicitly or implicitly, from complying with amendments or additions to the constitution and canons that might be enacted after a parish is accepted by the Diocese.
Of course, there is no provision in the constitutions and the canons of the national Church or the Diocese that all future enactments by them will become automatically binding on the parishes in perpetuity, either. (I will have more to say about this in a future post.)

And it is this discrepancy in treatment which may give Bishop Seabury's a federal ground on which to ask the United States Supreme Court to review today's decision. This is especially true in light of the earlier decision by South Carolina's Supreme Court, which also under "neutral principles of law" refused to give any legal effect to the self-declaratory Dennis Canon. It is difficult to see how "neutral principles of law" can be used to arrive at exactly opposite results, unless the result in favor of the national church is due to the granting to it, under State law as interpreted by that State's highest court, a special preference which would be unconstitutional under the First Amendment.

Cut it any way you like, but today's decision contributes further to the patchwork quilt of church property jurisprudence, in which all courts applying the same "neutral principles" still reach different results: the Dennis Canon ostensibly binds parishes in New York, Connecticut and California, but not in South Carolina, Kentucky, New Hampshire or Arkansas -- with Virginia still to be determined. And for that crazy result, we have ECUSA and its hired attorneys to thank.

So -- hang on to your hats. This case is not over until it is over, which is to say, until we see whether a petition will be filed in the next ninety days.

[UPDATE 09/30/2011: One has to marvel at the innocence of some good Episcopalians, such as the Very Rev. Nick Knisely, Dean of the Cathedral at Phoenix, in the Diocese of Arizona. I love his blog "Entangled States", which frequently informs me about the latest discoveries in the world of physics and cosmology, and so I link to it at the right. But look how, posting at The Lead, he has distorted the Associated Press account wholly to favor just ECUSA (emphasis added):
The Supreme Court of Connecticut today decided in favor of the Episcopal Church and the Episcopal Diocese of Connecticut in a dispute arising when a number of former Episcopalians claimed ownership of the building and property of the parish they had attended. . . .

"We now conclude under neutral principles of law that the Dennis Canon applies and that it clearly establishes an express trust interest in the property in favor of the Episcopal Church and the Diocese," [Connecticut Supreme Court Justice] Zarella wrote."

More here.

The article goes on to list all the instances where State supreme courts and other courts have ruled in favor of the Episcopal Church and the argument that the Dennis Canon means that all property in the Episcopal Church is held in trust for the Episcopal Church as a whole.
For your information, Dean Knisely, the article does not provide anything even approaching such a "list." In the first place, it confines itself just to a listing of cases in 2011, so it does not claim to survey the entire field. Next, it mentions the California litigation involving St. James, in Newport Beach, California -- in which St. James won its right to go back to the trial court for further proceedings: that is hardly an instance where the State court ruled in ECUSA's favor. Then the article mentions Pittsburgh, but that litigation is waiting to hear whether the Pennsylvania Supreme Court will review the appellate court's decision. And look at the other cases it mentions: Virginia and Texas, where there are no final rulings of any kind, and --- wait for drum roll, please -- Canada!

Pray tell us: how does the decision of a court in Canada, which operates under completely different laws and precedents, and which involves the Anglican Church of Canada, count as a "rul[ing] in favor of the Episcopal Church"? (Just because the Canadian court decided in favor of the Diocese of Westminster does not make it a Dennis Canon precedent -- the decision went entirely on the Canadian law of implied trusts, and not on express ones.) I am afraid, Dean Knisely, that your wishes that something were indeed true about our Church have led you, in this one instance, at least, to engage in some ultracrepidarian misinformation.]


  1. A.S.,
    This is certainly a another slap in the face for freedom of religion and to those who have contributed their heard earned money to build this church only to have it taken away by a group who hasn't contributed a dime.
    IF this goes to the US Supreme Court, anything this possible. While currently the court if majority conservative, this issue probably won't boil down to cons vs liberal; I hardly think the Supremes understand the issues facing TEC.
    IF they were to rule in favor of TEC, wouldn't that essentially flow down and put an end to the cases in CA and Ft. Worth? Wouldn't the rump diocese of FTW use a favorable CT ruling as their way of winning in TX?


  2. David, the Supreme Court is currently two-thirds Catholic, to one-third Jewish, in terms of their respective faiths. If they do decide to take the case, I think ECUSA would have to be worried, because the court accepts for review only those cases in which at least four of the nine justices think that a contribution from the full Court would assist in resolving some unsettled issues. And the enforceability of the Dennis Canon is -- with each conflicting State court decision -- becoming more and more one of those issues.

    At present, I cannot see how the Supreme Court could turn Justice Blackmun's dictum in Jones v. Wolf into a matter of uniform federal law across the land. What I could see is their calling a halt to the practice of State courts treating the dictum as though it were binding constitutional doctrine.

  3. Seems to me that a parish that agrees to abide by the 1956 constitution and canons should be bound by those 1956 canons unless ammendments and subsequent changes to the TEc canons are properly voted upon and agreed to.

  4. Mr. Haley,

    To me, the saddest part of this ruling is that one is now caused to worry that a new, even lower, nadir in consitutional interpretation might yet be found in one of the cases still undecided. I cannot help but see this as a worrying event for the future of any sort of return to a logically consistent application of the Rule of Law in the U.S., absent a hearing by the SCOTUS and their overturning of such a flawed decision. I think our nation, in particular its judicial system, is in desperate need of large amounts of prayer.

    Pax et bonum,
    Keith Töpfer

  5. As always, an informative analysis. Allow me to offer one minor correction: Mr. Bumble and his statement about the Law are to be found in Oliver Twist, not Pickwick Papers.

  6. Thank you so much for catching that memory slip, VB. The post has been corrected.