12/19/2008

Wringing of hands, muttering about litigation costs and other economic challenges.

As we approach Christmas this year there is great wringing of hands and mutterings about costs of keeping alive institutions civil and religious. It is seemingly impossible to keep perspective when the numbers seem so out of balance with the rest of our lives.

Whether or not it is a great idea to try to save the big three automobile companies, it is perhaps useful to keep something of the costs in perspective. Over on the sidebar here at Preludium there is not a counter on the costs of the Iraq war. It is now over 613 Billion dollars. One commentary today suggested that before it is over there will need to be a stimulus package costing nearly one trillion dollars to get us through this depression / recession. That is, it will cost almost twice as much to get us out of the financial muck as it has taken us to get in the muck in Iraq.

The hand wringers, however, have not as a whole protested the high costs of war but are less moved by the possible high cost of greed, avarice and stupidity. In neither case has there been as much attention to the workers and soldiers as to the corporate giants.

Still, the bottom line as far as I'm concerned, is that the last election campaign said very little about the abject poor who are screwed no matter what the possibilities of mortgages or college tuition are, or those for whom prospects were so poor that military service in a time of unjust war is attractive. So the work is not done. At least there is an administration coming on board that might, just might, make things better for the forgotten poor as well as the misbegotten middle class. That will happen, however, only if we keep their hands to the plow. America, it is time for the poets, queer, straight, and otherwise, to set their hand to the wheel. It is time to pull this people out of the muck.
Enough of a rant on matters civil and political, on to Anglican Land.

The hand wringers in Anglican Land, Episcopal Church division, are having a field day on the high cost of litigation. Prayers are asked for, analysis is done calling for common sense, potentates and primates make noises about the un-Christian behavior of christians suing other christians over church issues. It all is so unseemly, so, let us say, tacky. And beside, the hand wringers are quick to say, it is un-biblical.

I've tried to address some of this hand-wringing in an earlier post, which you can read HERE.
In doing some other research I came upon the commentary in the Annotated Canons of the Episcopal Church that struck me as of some importance regarding ownership of Churches. In 1868 a canon on the dedication and consecration of churches was enacted, (at first numbered Title 1, Canon 2, and now is Title II, canon 7.) It stated in part, (section 2) "It shall not be lawful for any Vestry, Trustees, or other body authorized by law of any State or Territory, to hold property for any Diocese, Parish, or Congregation, to incumber or alienate any consecrated Church or Chapel without the previous consent of the Bishop, acting with the advice and consent of the Standing Committee of the Diocese in which such Church or Chapel be situated, PROVIDED, that this section shall not be operative in any State with the laws of which , relating to the tile and holding of property by religious corporations, the same may conflict."

In 1871 this canon was changed, giving greater strength to section 1, which now spelled out the matter of being "free from lien or other incumbrance." That now read, "No Church or Chapel shall be consecrated until the Bishop shall have been sufficiently certified that the building and ground ...are secured by the terms of the devise, or deed, or subscription by which they are given from the danger of alienation from those who profess and practice the doctrine, discipline, and worship of the Protestant Episcopal Church in the United States of America, except in the cases provided for in Sections 2 and 3 of this Canon...."

The Annotated Canons indicate that "this change was occasioned by the secession of Christ Church, Chicago, who, taking the parish property with them, affiliated themselves with the Reformed Episcopal Church."

In 1904 the language of the 1868 proviso regarding state law and conflict was removed, and the rest of the language simplified. Relatively minor changes were made in 1943. In 1973 the work of the Standing Liturgical Commission on a new service for consecration of churches and chapels which did not require that the property be debt free and without lien, so a resolution was passed to repeal Section 1 of the Canon, since the proposed service was to include language allowing it to be used without the restriction of debt or lien. Convention did so, no realizing that at the same time they "had removed the requirement that property be secured from alienation to those not affiliated with this Church (meaning TEC)."

In 1979 a new Section 1 was inserted, as part of the same resolution that put in the new section of Title 1, Canon 6, Section 4&5 (also known as the "Dennis Canon.") It inadvertently makes possible a difference of opinion between the Canons and the BCP, and the Annotated Canons notes that the BCP takes precedence. The difference of opinion would concern what the canons meant by "secured for ownership" meant.

What is interesting to me in this otherwise arcane bit of history, is that (i) from 1871 until 1973 it was clear that property was to be held in such a manner that it could not be alienated from the Protestant Episcopal Church in the United States of America or "this Church." That is, the canons already supposed what Title 1, Canon 6, Section 4&5 spelled out - that property was held in trust for the Episcopal Church. The three years when this restriction was not in one way or another spelled out was an error in less than careful work on canons. But the essential point of the matter is that from 1871 to 1973, churches were consecrated only when assurances were secured that the church could not be alienated from this Church, and from 1979 to the present that they are held in trust for this Church. For the past century there has been no proviso for state law contrary notwithstanding to have weight.

So now we come back to the current litigation and related unpleasantness:

(i) The need to incumber property for use by The Episcopal Church in such a way that only with the Bishop and Standing Committee consenting could it be "sent along" to some other owner, and that it must be secure from alienation from TEC has been around for over 135 years. This has been the case for precisely the reasons now operant in the attempts by various congregants to take property with the to some other jurisdiction or to their own use separate from TEC.

(ii) It must be noted that the call for negotiations rather than legal proceedings is mostly a ruse. When people leave TEC and claim, as the majority of a congregation, the right to take the keys, the silver, etc, and change the locks, control the services and schedules, occupy the offices and such, they have staked a claim. Negotiation from the status quo, with those who have left TEC in occupation of buildings, is to negotiate with property being held de facto by those who have left. That is quite different from what might be possible if a majority of a congregation voted to leave TEC, resolved to quit the buildings until matters could otherwise be settled, and then voted to enter into negotiations with the Bishop of Diocese concerning the use, possible purchase or reception of the property. That has been accomplished in some few cases. But too often the presumption has been that occupation is the right of the majority independent of any past canonical assumptions. Having left TEC, those occupying the property feel no restraint of canon. The matter cannot be settled then without recourse to the courts.

(iii) When the matter of the costs of litigation comes up, as it has today (December 19, 2008) we hear this: "We hope that The Episcopal Church and the Diocese of Virginia will realize that it is time to stop this legal battle. In these economic times, we should be focused on helping our communities and spreading the Gospel, not spending millions of dollars on ongoing legal battles. The money we have been forced to spend to keep our property from being forcibly taken away from us is money that could have been spent in more productive ways." (James Oaks of the Anglican District of Virginia)
The costs of litigation are indeed high, and it is true that the monies could be used in other ways. However, we might compare the costs of such litigation to the value of properties and the invaluable value of the principle - that churches and chapels of this church are understood to be held in ways that do not allow alienation from use by "this church." As to churches formed prior to such canons, or indeed prior to the laws of state and federal government, there is always the question as to whether or not currently ordained persons and currently constituted congregations who live with the Constitution and Canons of The Episcopal Church understand that the Constitution and Canons as amended are what hold for all. I believe they do. So the litigation exists in part because there is the need to press for the validity of the canons.
The wringing of hands then makes the plea for better use of the monies. OK. Suppose over then next few years say 17 million dollars was spent by all parties in disputes throughout TEC regarding property. It is perhaps useful to remember that that is about the going rate for replacement of Grace and St. Stephens in Colorado Springs. If we look at the total value of properties all over the US where litigation is in the works, it becomes clear that establishing clarity about the intent of the canons, the ownership issues as determined by civil law, etc, are worth the effort and money.

The wringing of hands is just that. On the other side of the legal issues - ones mostly the result of occupation of buildings - it might be possible to talk of negotiations on use. In places where no occupation was assumed and negotiations held there seems to have been better results.

Meanwhile, most buildings are in use by people who are persuaded Christians going about the business of being in community, and I hope no matter who ultimately owns the buildings and who now controls the use of space, that the time at hand, what with the celebration of the Incarnation, might lead to prayers for all people, and particularly for those who are homeless, churchless, jobless, or otherwise mangled by an economy of haves and have nots.

Time for Christmas... it's always time for Christmas, for the mass that celebrates the presence of the Incarnate One, Jesus Christ our Lord.

8 comments:

  1. Interesting Mark+.

    But let me put some flesh on this...regarding in particular your point ii...we determined to leave the Episcopal Church but we also made the decision not do so unless and until we might secure an agreement to negotiate for the propery...the bishop (admittedly in an informal way) granted that it would be possible to negotiate but only AFTER we officially departed from TEC.

    Then, he said (and the chair of the SC agreed), we might discuss things as two separate parties rather than two entities within one party.

    We worked up an (again informal) protocal sitting in his office...step one of which was to actually leave.

    We did that. And we sent our first proposal...it was rejected without so much as an explanation. We were encouraged to send forward another. We did that and received exactly the same response. We had no idea why or what they wanted. Our offer exceeded the appraisal value of the property. But we never received a counter offer or any sort of formal response (beyond a rejection) to our offers.

    So, and you can read about the whole thing here...

    http://www.standfirminfaith.com/index.php/site/article/18482/

    In the end we were sued. We would have loved to continue to negotiate and would have loved to try to find a way to meet the demands they made...if only we knew the demands.

    So in this particular case (and we are not unique) we did not establish a "fact on the ground" and then seek negotiations. We went to the bishop first because we trusted him and had, at that point, a very good relationship.

    I am not an atty so I cannot address the other points in your post, but I am sure others will.

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  2. Fr. Matt, it's one thing for you and your wife to decide that you just can't take the Episcopal Church anymore, but I find it troublesome that you needed to drag the entire congregation with you. To me this isn't much different than the actions of some Cult Leader.

    If you and your wife had simply resigned and joined up with ACK, you wouldn't have needed to take the property with you, would you?

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  3. Not into all the details, since I am not Episcopalian, nor really Reforemd Episcopalian anymore, but did find the comment "The Annotated Canons indicate that "this change was occassioned by the secession of Christ Church, Chicago, who, taking the parish property with them, affiliated themselves with the Reformed Episcopal Church." interesting. One wonders who "annotated" the Canons since the REC was formed 5 years after the 1868 date of the Canons. In anticipation of the leaving?

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  4. Padre Mickey

    What makes you think we "dragged" the congregation with us?

    Matt Kennedy

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  5. Fr. Matt, you are correct; dragged is an inappropriate term; perhaps persuaded is the proper term. It still seems quite similar to things I saw when I was in a cult many years ago.

    So, why didn't you simply resign without taking others with you?

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  6. Padre Mickey,

    There was no need for persuasion. At least 90-95% of the people at GS wanted to go before I did.

    Matt Kennedy

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  7. Thanks for your response, Fr. Matt.

    ReplyDelete
  8. The greater theological question remains, "is the episcopal church" given the demonic forces at play, still a church? Has apostolic succession indeed been broken? Who "owns and controls" God's House? If the episcopal church is no longer a "church" and following the laws of Moses and of Christ and if the "so called" spinter groups are preserving the church founded by Christ and Peter, Christ's Rock then when they are instructed by Christ Himself to "shake off the dust from their shoes and walk on" as were Christ's instructions to the first deciples, then they are doing the right thing. They are indeed followers of Christ and administrators of the "heart" of the law as Christ Himself decreed.
    If, on the other hand all invovled are in fact simply "schismatic" that this discussion is moot. The final judgment will settle this issue once and for all. Those who enter the Kingdom of Heaven just might end up being a very small remnant. "Glory be to God for All Things." Peace be with you. GM

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