Thursday, August 23, 2012

The Dog in the Manger (IV): Bishop Seabury Church, Groton

In praesepi faeni pleno decumbebat Canis. Venit Bos ut comedat faenum, cum Canis, confestim sese erigens, tota voce elatravit. Cui Bos: “Dii te, cum ista tua invidia, perdant (inquit): nec enim faeno ipse vesceris, nec me vesci sines.”
[In a manger full of hay a dog was lying. There entered an ox to eat the hay, when the dog at once rose up and barked as loudly as he could. Said the ox to the dog: "May the gods destroy you and that envy of yours, for you yourself do not eat the hay, and you do not let me eat it."]

THE MORAL. Envy pretends to no other Happiness than what it derives from the Misery of other People. It will rather eat nothing itself than forego starving those that could have nourishment.

* * * * *
[Note: Part I of this series is here; Part II is here; Part III is here.]

The latest victim of a Church property lawsuit "resolved" by an illogical and incoherent judgment, naturally in favor of ECUSA and its supporters, is Bishop Seabury Church, in Groton, Connecticut:

(Picture Credit: Deborah Straszheim. Click to enlarge.)

The Church was built after the parish acquired the property (by gift and by purchase) in 1966. The parish had originally been founded as a mission in 1875, and was named after Connecticut's first Episcopal bishop, Samuel Seabury, who was born in Groton in 1729. In 1956, the Diocese of Connecticut in 1956 admitted Bishop Seabury Church into full union. Its current Senior Associate Rector, the Ven. Ronald Gauss, has been with the parish for over 37 years.

Fr. Gauss was one of the original "Connecticut Six," whose story I have told on this page. After the group lost their suit in federal court to preserve their rights of worship, the Bishop of Connecticut and his Diocese filed suit against the rector and vestry of Bishop Seabury Church in 2008 to establish their ownership of the  property under the supposed terms of the trust unilaterally imposed by the malodorous Dennis Canon. The trial court ruled against the parish in 2010, the Connecticut Supreme Court upheld the trial court's decision in September 2011, and the United States Supreme Court declined to review that decision earlier this year.

The opinion by the Supreme Court of Connecticut is a travesty of justice -- it nonsensically reads the United States Supreme Court's majority decision in Jones v. Wolf as granting the Episcopal Church (USA) the unique power to bypass the trust laws and requirements in all fifty States, by the enactment of a mere national canon which purported at one stroke to place all Episcopal parish properties throughout the Church in trust for the denomination. Recently, your Curmudgeon's criticism of the decision was seconded by the Supreme Court of Indiana, in a decision that refused to recognize any unilaterally created denominational trust under Indiana law:
Some state courts have apparently read Jones as an affirmative rule requiring the imposition of a trust whenever the denominational church organization enshrines such language in its constitution. See, e.g., Episcopal Church in the Diocese of Conn. v. Gauss, 28 A.3d 302, 325 (Conn. 2011) .... We do not understand Jones as creating such a rule. First, such a rule would result in de facto compulsory deference by enforcing the claim of the denominational church organization merely because the trust claim is added to the denominational church organization's constitution and regardless of any contrary evidence or state law.... Second, the Court approved the neutral-principles approach as an acceptable means of applying state property and trust law.... Thus, the Court's expression that "the constitution of the general church can be made to recite an express trust in favor of the denominational church" organization, was one example of a means by which parties may be able to express their intent, "provided it is embodied in some legally cognizable form" under state law.... As explained below, under Indiana trust law, whether under an express or implied trust theory, the intent of the owner (settlor) to create a trust must be demonstrated.... Thus, under Indiana law, a claim of trust by the purported beneficiary (e.g., insertion of a trust clause into a denominational church organization's constitution), without indicia of intent on the part of the owner (settlor), is insufficient to impose a trust. 
A proper reading of Jones v. Wolf, however, was denied to the rectors, vestry and members of Bishop Seabury Church, and so they conducted their last Sunday services in their building on August 12. A parish of some 750 members, with an average Sunday attendance of between 250-300, has now been forced out of its own property to meet for the time being at a local motel on Sundays, and at another site on Wednesdays.

Meanwhile, true to form, the Diocese of Connecticut joins all of the other Episcopal dogs in the manger, as documented by this series of posts. It has no current use for the property:
The Bishop of the Connecticut Episcopal Diocese said Tuesday he would meet with area clergy next week to discuss the future of the Bishop Seabury Church in Groton. 
... Connecticut Diocese Bishop Ian T. Douglas said the plan now is to meet with local clergy to discuss how the building might best be used in the future. He said everything is on the table. 
“What I want to do is begin the conversation with those clergy of the region, to pray together and take counsel together, and begin to say, ‘What is it that God would have us do with this resource for God’s mission in Groton?’” he said.
That's a very good question, Bishop Douglas. Perhaps you should have asked it earlier, before you told the parish that if they were to be allowed to stay in their own church, they could not affiliate with ACNA, or allow their senior rector to conduct services.

In other words, Bishop Douglas, you gave them no more of a choice than the dog in the manger gave the oxen who wanted to be allowed to eat their hay. You have no use for the Church yourself, but you made certain that the ones who could use it would not be able to do so, under the conditions you dictated to them.

Aesop had you and your lot pegged 200 years ago.


  1. So what is your reading of the St Mary of the Angels Hollywood situation? It appears that continuing Anglicans have exactly the same problems as TEC.

  2. Except, John, that the ACA does not have any equivalent of the Dennis Canon. Under their denominational rules, the parish owns its property free and clear of trust, and so the majority should decide its fate. What has happened is that a small minority is trying to take over the property and thwart the majority's intent to join the Anglican Ordinariate.

  3. But hasn't the court ruled that nevertheless, this is an ecclesiastical matter, and the ACA is indeed entitled to determine who is on the vestry and whether elections are valid? It's true that the ACA argued that the issue was control of the property rather than ownership outright, but isn't control for all intents and purposes the same as ownership? The court ruled it can't intervene, for instance, in whether the ACA replaces vestry members in violation of its own canons. Thus the ACA can install a vestry that will for all intents and purposes give the ACA all the privileges of ownership, including, I would assume, the ability to dissolve the corporation and sell the property.

  4. It looks like that knowledge of the law is not required in order to become a judge.

    David Katzakian

  5. Actually, Mr Haley, it seems to me that the ACA's attorneys have come up with (or at least thoroughly habilitated) a strategy that makes the Dennis Canon look like something clumsy and obsolete. Consider that the Dennis Canon refers exclusively to property. The argument that the court must defer to ecclesiastical authority in any ecclesiastical matter is much, much more powerful. Not only can the ecclesiastical authority govern liturgy and clergy conduct, but it can clearly govern the use of parish property, and since many parish officers and employees are appointed by the rector, the ecclesiastical authority can interfere in all of those matters without accountability to the courts. What is happening in the St Mary of the Angels case is that the ecclesiastical authority, without the need to refer to property ownership, first replaces the rector. Then, because senior warden is appointed by the rector, it replaces him. Then it makes an ecclesiastical decision to excommunicate other parishioners on the vestry. Then it acts uncanonically to appoint its own vestry members -- but the ACA attorneys argue that the court may not interfere with ecclesiastical actions even to the extent of asking whether they are uncanonical, because that question must be reserved for canonical authority. Complaints about canonical authority must go directly to canonical authority, the court can't intervene!

    Obviously if a denomination wishes to close a parish and sell the property, this doctrine permits it to happen irrespective of the Dennis Canon or other provisions of the articles of incorporation.

    I'm not sure if there's a way around this, but the logical extension is that if the ecclesiastical authority says the penalty for heresy is burning at the stake, and the ecclesiastical trial convicts you in whatever fraudulent way, it can burn you at the stake, and the courts can't intervene.

    How say you?

  6. John, I appreciate your interest in the questions posed by the St. Mary's case, but they have their own complexities, and to address them adequately, I would have to do an entirely other post (which I may well do, as we find out more about what is actually happening there).

    Suffice it at this point to say that because there is no claim of a trust imposed on the St. Mary property in favor of ACA should the parish decide to leave, the issue instead is entirely one of corporate governance. And there are two sides to that issue -- the ecclesiastical power to license and depose priests, and the State's civil laws regarding the governance of religious corporations.

    Under State law, a majority of the voting members of the parish have the power to elect board (vestry) members. The rector chooses the Senior Warden from among the directors so elected by the members. So while the ACA may designate the rector, and the rector the Senior Warden, it is the members who ultimately decide who serves on the vestry (and they also are the ones who decide on any permanent -- as opposed to interim -- rector).

    The dispute at St. Mary's involves just who is the actual majority, and who is the minority, of the members voting to determine whether the parish joins the Ordinariate or not. Fr. Kelley's side is claiming a "2/3 vote" of the membership to join, but the ACA side is saying that the vote was by absentee ballot, and hence illegal. These are questions that must be resolved in court by proper application of the parish's by-laws in effect at the time the dispute arose. The court will, if necessary, hold a supervised election in order to ensure that the voting is fair and the outcome the result of a true majority.

  7. Mr Haley, I certainly hope you'll look into this further, since this is one of the more interesting developments in the continuing Anglican movement. Having been at the trial earlier this week, I would say that the court indicated no plans, and no interest, in holding a supervised election, while the ACA has indicated no plans in reopening the parish (I've specifically asked the "Presiding Bishop" of that two-car funeral about this and gotten an unresponsive reply). Only continuing public discussion is going to help -- we need yours.

  8. So one more state supreme court (Indiana) rules with some sanity and knowledge of law. Definitely a good thing..... especially in the view of this Hoosier.

    SC Blu Cat Lady

  9. Katherine Jefferts-Schori to Bishop Seabury Church (and dozens others): "You didn't build that!"