Watch out What You Ask for: ECUSA Gets CA Judge to Call Every Parish Conveyance Since 1979 into Question

In 1979, in response to threats by parishes to leave over the issue of women's ordination to the priesthood, ECUSA enacted its now notorious Dennis Canon. The Canon purported to impose unilaterally a trust upon the real and personal property of every single parish, mission and congregation in every single diocese of the Church -- regardless of what State laws said about the requisites for creating a valid trust.

In 1982, the California legislature enacted the current version of Corporations Code Section 9142(c), which reads as follows (with my bold emphasis):

(c) No assets of a religious corporation are or shall be deemed to be impressed with any trust, express or implied, statutory or at common law unless one of the following applies:

(1) Unless, and only to the extent that, the assets were received by the corporation with an express commitment by resolution of its board of directors to so hold those assets in trust.

(2) Unless, and only to the extent that, the articles or bylaws of the corporation, or the governing instruments of a superior religious body or general church of which the corporation is a member, so expressly provide.

(3) Unless, and only to the extent that, the donor expressly imposed a trust, in writing, at the time of the gift or donation.

Never mind for the moment that the only "members" of ECUSA are its dioceses, and that parishes are members of individual dioceses, not of ECUSA itself. In 2009, in its decision in The Episcopal Church Cases, the California Supreme Court read section 9142 (c) to empower ECUSA to impose a trust on all property of every Episcopal Church parish in California simply by the enactment of its Dennis Canon -- three years before the statute enabling the Canon was adopted.

Ever since, ECUSA has used the Dennis Canon to win many suits against individual parishes in California who took steps to leave their diocese without the consent of the diocese or its ecclesiastical authority. The courts have held that, as given effect by section 9142 (c), the Dennis Canon trumps any State-law requirement of the statute of frauds, which prevents you or me from declaring a trust on someone else's property without a writing signed by that someone else who actually owns the property.

At the same time it added subsection (c) to the statute in 1982, the legislature added subsection (d), which reads (again, with my bold for emphasis):

(d) Trusts created by paragraph (2) of subdivision (c) may be amended or dissolved by amendment from time to time to the articles, bylaws, or governing instruments creating the trusts....

The California Supreme Court also held, in The Episcopal Church Cases, that pursuant to this language, a trust created by ECUSA in its national canons (bylaws) could be amended or revoked only by another amendment to those same canons -- in other words, that parishes could not revoke by themselves any Dennis Canon trust imposed unilaterally on their property.

ECUSA's lawsuits against individual parishes began in the Diocese of Los Angeles and Diocese of San Diego, as noted in earlier posts here and here. In those cases, as I mentioned, the parishes tried to leave and take their property without the consent of the ecclesiastical authorities of those dioceses. And in each case, the courts concluded that the attempts to amend the parish's governing documents contrary to the Dennis Canon were null and void.

In one case -- that against St. James parish in Newport Beach -- the trial court even refused to give effect to a written waiver of the Dennis Canon signed by the Diocese's Canon to the Ordinary (i.e., the diocesan bishop) on behalf of the Diocese of Los Angeles. The waiver had been requested by wealthy St. James donors who wanted to buy additional valuable property for the parish's expansion, but who did not want the property to be subject to the national trust. Amazingly, the trial court found that no single bishop (or his deputy) could waive the Canon, because it was part of the governing documents of ECUSA, and only ECUSA itself (i.e., acting through its General Convention) could amend its governing documents.

As I wrote here, this decision put a cloud on the title of all Episcopal parish deeds of real and personal property executed since 1979 in Orange County -- because none of those transfers had taken place with the consent of General Convention. Ever since the Church's formation in 1789, sales and alienations of parish property had required the consent only of the ecclesiastical authority of the diocese in which the parish was located. The national Church had never had anything to do with property transfers by individual parishes, nor could it -- General Convention is in session less than 1% of the time (10 days or so out of every three years).

When the Diocese of San Joaquin amended its constitution and canons in December 2007, however, things were different: the Dennis Canon applies by its language only to property held "by or for the benefit of any Parish, Mission or Congregation", and not to property owned by member dioceses. There was no language in ECUSA's governing documents prohibiting dioceses from amending their own governing documents as they chose, and in particular, there was no language preventing any diocese from withdrawing its membership in the Church.

Nevertheless, ECUSA still brought suit against Bishop Schofield and various entities that held the title to the diocesan real property and bank accounts, in which it claimed that Bishop Schofield was not authorized to transfer the properties and bank accounts. And then it also filed suit against the nine incorporated parishes in the diocese that owned their own real and personal property, and claimed title to that property under the terms of its Dennis Canon.

Fast forward now to the present day. One of the withdrawing San Joaquin parishes that ECUSA sued was St. John's, in Stockton. It brought a motion for summary judgment that its Dennis Canon applied to all of St. John's property, and that the withdrawing congregation had no right to any of it.

Notwithstanding that (in contrast to the Southern California cases) St. John's had not left on its own, but together with the entire Diocese and also with the express written consent of Bishop Schofield,  the trial court judge today decided that Bishop Schofield or his diocese had no authority to consent to remove the Dennis Canon trust from any parish property.

He reached this conclusion despite the evidence that Bishop Schofield and his standing committee for all the years they ran the Diocese, just like every other diocesan bishop and standing committee elsewhere in the Church, had regularly consented to the sale and disposition of parish properties -- without ever seeking any kind of approval or release from the national body.  In other words, the evidence was undisputed that the national Church had always, since 1979, allowed bishops and their dioceses to act as its agents in permitting sales of property free and clear of the Dennis Canon trust.

But no longer. Once again, a trial court's decision has beclouded the title of every transaction involving any sale or disposition of its real or personal property by any Episcopal parish in California from August 1979 forward. Technically, even goods purchased at a parish fundraiser or rummage sale are literally still impressed with a Dennis Canon trust under its broad language applying to "all" property.

To be sure, in most cases, the trust interest imposed by the Dennis Canon will have been extinguished by application of the bona-fide-purchaser doctrine, because it is an unrecorded interest. If you have an unrecorded trust interest in your cousins' property, say, but they sell it to someone else who has no way of knowing about your interest (because it is not part of the record title), then so long as the property is acquired for its fair value, the sale extinguishes your unrecorded interest, and the buyers take title free and clear of that interest.

But the bona-fide-purchaser exception is not automatic; it is a question of fact to be determined in each and every case, based on what the purchaser actually knew or could reasonably have been expected to know. Now that ECUSA has so many lawsuits pending in California, with stories about them appearing in many newspapers, it will become harder and harder for title companies to ignore the Dennis Canon interest in church cases involving just real property. And once they start writing exceptions in their title policies, the properties will become virtually unsaleable. That development, of course, would defeat the hope of ECUSA and its rump diocese in San Joaquin to recoup their  costly legal expenses by putting on the market the properties they have acquired through litigation, and for which they have no current physical use.

For all these reasons, therefore, it seems doubtful that these legal rulings in Los Angeles and San Joaquin counties can stand. But that is of no comfort to the parishes who have to move out and leave the properties vacant until the courts sort things out.

Nor does it sound as though ECUSA or its attorneys have thought things through. At this point, by urging that no single bishop can act on ECUSA's behalf, they have shot themselves in the foot. (For instance, if that is the case, then how could only the Presiding Bishop have authorized the bringing of all these lawsuits in the Church's name? By their own admission, the suits are not authorized.)

And as they are currently arguing these cases, they are making it more and more difficult for themselves to dispose of any surplus properties gained through the (unauthorized) litigation, until they get General Convention to modify the Dennis Canon.

Said in those classic words, watch out what you ask for: you just might get it. 

  

Enough evidence for you, Mr. Russell?

This video will put into perspective for you the extremely fragile niche which Planet Earth occupies in the vastness of the known universe. (Click on the four corners emblem at the lower right to watch it fullscreen.)





Earth is:

• just the right distance from the Sun to allow water and carbon-based life
• now at just the unique time in the Sun's evolution for its light and energy to foster and not destroy us (as it will in a few billion years)
• in a solar system just the right distance away from the galactic center for long-term stability
• in a perfect spot to allow astronomers to see out to the farthest edges of space
• circled by a moon at just the right distance to allow total solar eclipses
• at the point in time when humans have evolved to hold the keys to their own fate

Do you begin to grasp why belief in God is at least rational?

Note: my title is taken from the rather supercilious response Bertrand Russell once gave to the question of what he would say to God if, upon his death, he found himself before Him: "I would tell him that He did not provide enough evidence for rational belief."

Judge Orders God to Break Up into Smaller Deities

From The Onion (some 12 years ago, but still timeless -- and especially appropriate on this day, with only a few minor changes to protect the innocent):

WASHINGTON, DC—Calling the theological giant's stranglehold on the religion industry "blatantly anti-competitive," a U.S. district judge ruled Monday that God is in violation of anti-monopoly laws and ordered Him to be broken up into several less powerful deities.

"The evidence introduced in this trial has convinced me that the deity known as God has willfully and actively thwarted competition from other deities and demigods, promoting His worship with such unfair scare tactics as threatening non-believers with eternal damnation," wrote District Judge John Shelby Sprong in his decision. "In the process, He has carved out for Himself an illegal monotheopoly." 

The suit, brought against God by the Obama Justice Department on behalf of a coalition of Democratic, polytheistic "lesser deities," mayors and governors, alleged that He violated antitrust laws by claiming in the Holy Bible that He was the sole creator of the universe, and by strictly prohibiting the worship of what He termed "false idols." 

"God clearly commands that there shall be no other gods before Him, and He frequently employs the phrase 'I AM The Lord' to intimidate potential deserters," prosecuting attorney general Eric Holder said in his argument to the court. "God uses other questionable strong-arm tactics to secure and maintain humanity's devotion, demanding, among other things, that people sanctify their firstborn to Him and obtain circumcisions as a show of faith. There have also been documented examples of Him smiting those caught worshipping graven images, and vehemently opposing same-sex marriages."

OK, up to this point, The Onion gets its theology more or less correct -- at least from an Old Testament point of view. But then, as is inevitable with too-clever humorists, they stray from well-established Christian doctrine, and veer off into unnecessary stereotypes and parodies of Christianity, after they have already made their point. For the rest, therefore, your Anglican Curmudgeon has judiciously edited the original content to bring it into line with traditional Anglican and current Episcopalian views (you can compare what follows with the original here), with his own particular inventions to suit the occasion:

Attorneys for God did not deny such charges. They did, however, note that God offers followers "unbeatable incentives" in return for their acceptance of His revealed Word, including salvation from sin and hell, eternal life, and "fruitfulness on Earth" (for those who can learn to multiply). 

"God was the first to approach the Jewish people with an exclusive 'covenant' contract that guaranteed they would be the most favored in His eyes, and He handed down standards of morality, cleanliness, and personal conduct that exceeded anything else practiced at the time," lead defense attorney Hugh Blankenship said. 

"He readily admits to being a 'jealous' God, not because He is threatened by the prospect of competition from other gods, but because He is unmovable in the righteousness of His cause and declares that He, not the wretched mortal sinners whom He created 'in His image', already knows which of them will choose Him, and which of them will worship lesser gods. Many of these so-called 'lesser' gods could care less if somebody bears false witness, or covets thy neighbor's wife. Our client, on the other hand, is truly a 'People's God,' and wants no man to forfeit salvation except by his own pre-ordained choice." 

In the end, however, God was unable to convince Sprong over the arguments advanced by attorneys for The Episcopal Church (USA) that He deliberately sought to create a marketplace hostile to rival deities, which at the same time interfered with the Church's plans to devolve into a composite of society at large. 

God's attorneys attempted to convince the judge of His openness to partners, pointing to His longtime participation in the "Holy Trinity," but the effort failed when Sprong, following a suggestion by ECUSA attorney Bart "Beers" Ehrman, determined that Jesus Christ and the Holy Ghost are "more God subsidiaries than competitors." 

To comply with federal antitrust statutes, God will be required to divide Himself into a pantheon of specialized gods and goddesses, each representing a force of nature or a specific human custom, occupation, or state of mind. 

"There will most likely be a sun god, a moon goddess, a sea god, and a rain goddess," said religion-industry watcher and  prominent Episcopalian Rachel Herald Evans. "Then there will be some second-tier deities, like a god of wine, a goddess of the harvest, and perhaps a few who symbolize human love, beauty, art and/or blacksmithing. Stay tuned as we coordinate with the Standing Commission on Liturgy, the sponsors of 'Holy Women, Holy Men', to give equal representation in the Church liturgy to all the other deities deserving of Episcopalians' worship." 

Leading theologians, including the Presiding Bishop of the Episcopal Church (USA), the Most Reverend Katharine Jefferts Schori, are applauding the God breakup, saying that it will usher in a new era of greater worshipping options, increased efficiency, and more personalized service. 

"Before this decision," she said in an official statement from her headquarters at 815 Second Avenue in New York City, "we Episcopalians were faced with an unacceptable alternative of having to confine God to a very small box. Now that Judge Schofield has ordered Him to break up His monotheopoly, we will have a whole range of boxes at our disposal, and we can get on with the business of promoting our Church as open to all. After all, there is no Church that can beat us at inclusivity, and this decision vindicates our individualized approach to faith tailored to the needs of society as we recognize it." 

"God's prayer-response system has been plagued by massive, chronic backlogs, and many prayers have gone unanswered in the process," said Gene Suozzi, a Phoenix-area Wiccan. "With polytheism, you pray to the deity specifically devoted to your concern. If you wish to have children, you pray to the fertility goddess. If you want to do well on an exam, you pray to the god of wisdom, and so on. This decentralization will result in more individualized service and swifter response times." Suozzi denied that his views on the case had been influenced by an invitation from Dr. Jefferts Schori to lead the worship service at the 2015 installation of ECUSA's Presiding Bishop at National Cathedral.

Other religious experts were not so confident that the breakup is for the best, pointing to the chaotic nature of polytheistic worship and noting that multiple gods demand an elaborate regimen of devotion that today's average worshipper may find arduous and inconvenient. 

"If people want a world in which they must lay burnt offerings before an earthenware household god to ensure that their car will start on a cold winter morning, I suppose Judge Sprong means they can have it," said Father Thomas Reinholdt, theology professor at Chicago's Loyola University. 

"But don't forget their track record -- lesser deities are infamous for their mercurial nature. They often meddle directly in diplomatic affairs, abduct comely young women for their concubines, and are not above demanding an infant or two for sacrifice. Monotheism, for all its faults, at least means convenience, stability, and a consistent moral code -- not to mention a common lectionary."

 The Presiding Bishop of the Episcopal Church begged to differ. Said she: "Monotheism was fast succumbing to the Great Western Heresy, according to which only Westerners can know the path to salvation. Indeed, Western faith in the 21st century was on its last legs, until there came this invigorating decision to eliminate monotheopoly. We thank Gaia, the Mother Jesus, Sophia and all her faithful attendants, from the beginning of the world until today, for their faithful perseverance in prevailing against patriarchy and its feminine-degrading paternalism. Today is the beginning of the new freedom from superannuated Western monotheism!"   

Aides to the Presiding Bishop said that she would soon issue pastoral directives to all diocesan bishops in the Church concerning whom, and specifically which categories of canonically-recognized sexual orientations and identities, they could put forward as their successors in their dioceses. 

Meanwhile, one deity who, along with the Presiding Bishop of the Episcopal Church, is welcoming the verdict is the ancient Greek god Zeus, who described himself as "jubilant" and "absolutely vindicated." 

"For thousands of years, I've been screaming that this third-rate sky deity ripped me off wholesale," said Zeus, speaking from his Mt. Olympus residence. "Every good idea He ever had He took from me: Who first created men just like himself? Who punished mankind -- well, okay, not regularly -- for its transgressions and disrespectful sacrifices? Who lived eternally up in the clouds? And the whole fearsome, patriarchal, white-beard, thunderbolt thing? I was doing that eons before this two-bit hustler started horning in on the action." 

Lawyers for God say they plan to appeal Sprong's ruling and are prepared to go all the way to the "Supreme Court" if necessary -- only they indicated that Judge Sprong might have to answer to a higher power than nine mere black-robed mortals. 

"This decision is a crushing blow to God worshippers everywhere, and we refuse to submit to a breakup until every possible avenue of argument is pursued," Blankenship  said. "I have every confidence that God will ultimately win, as He and His lawyers are all-powerful, and -- after all -- there is no higher court than God's."