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Property Constraints
Lionel E. Deimel
President, Progressive Episcopalians of Pittsburgh

What follows appears as a “Reader’s Viewpoint” column in the September 5, 2004, issue of
The Living Church (TLC 229, 10, pp. 3839). The essay was written in response to struggles within the Episcopal Church, but many of the arguments apply equally well (or nearly equally well) to other churches.

— LED, 8/26/2004

The Episcopal Church, in the aftermath of General Convention’s votes on Gene Robinson and the blessing of same-sex unions, has already had virtually intact congregations leaving to become new, non-Episcopal, churches. No group has yet succeeded in taking parish property with it, but the report of the Lambeth Commission might provoke renewed attempts to do so. Episcopalians should examine the legal, ethical, and practical arguments that might confront us in such an eventuality.

Exploration of property issues begins with the so-called Dennis canon (Title I, Canon 7.4):

All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

Civil courts have consistently favored property rights of superior governing bodies over those of individual congregations.

Clergy and dioceses certainly appear to be bound by this rule, the plain meaning of which is that the Episcopal Church owns all church assets. Civil courts, which might be enlisted to enforce canonical arrangements, have consistently favored property rights of superior governing bodies over those of individual congregations in hierarchically organized churches such as ours, even in the absence of provisions as explicit as the Dennis canon.

The American Anglican Council and its allies have asserted that General Convention actions violated the preamble of the Church’s constitution, thereby justifying extralegal responses, possibly including the departure of intact parishes from a wayward church. Not surprisingly, the constitution does not allow a bishop, diocese, priest, or vestry to second-guess decisions of General Convention. Some have argued that it is “defective” for not establishing a “supreme court” to adjudicate constitutionality, but this failure cannot justify the unilateral assumption of judicial powers by individuals or groups.

The Bishop of Pittsburgh, the Rt. Rev. Robert W. Duncan, has offered an alternative to the legalistic perspective. Before becoming moderator of the Network of Anglican Communion Dioceses and Parishes, he argued that fairness requires allowing congregations to control their own property, even if they choose to leave the Episcopal Church. Parishes conduct day-to-day business with little direct contact with the diocese or national church, so that it is natural for parishioners to think of the local church as “their” church and to resent any suggestion to the contrary. Often, many generations of Episcopalians have given to the parish, not to the diocese or to the Episcopal Church. The parish, therefore, seems the proper trustee for its assets. Besides, if a congregation departs and leaves its building behind, what could a diocese reasonably do with it? The fairness argument has a strong appeal to moderates and liberals inclined to be generous toward fellow Christians.

Fairness is not easily discerned, however. Parishioners contribute for many reasons, including to support not simply a church but an Episcopal church. The diocese itself, or other parishes, likely contributed to the founding and early support of any now-dissident parish, and might once have helped rescue it. The parish itself might have made similar contributions, but any strict accounting of who “owes” what to whom is likely to be neither possible nor helpful.

Episcopal congregations are not independent, of course, but are integral components of a larger structure that is the Episcopal Church. Parishes must abide by canon law, maintain the faith and order of the Church, and be faithful stewards. They operate under many constraints, but they receive episcopal care and diocesan services in return. They use the prayer book and hymnals provided by the wider Church, as well as the Church Pension Fund and other services.

Every parish is part of a network of churches, and the loss of one always has broader implications. In myriad ways, all Episcopalians benefit from an abundance and diversity of parishes, which provide worship choices, multiple venues for meetings and programs, church homes away from home for travelers, and enhanced public awareness of the Episcopal Church. If we truly believed that parishioners, not Episcopalians generally, properly held an interest in their own parishes, would we not require some “buy-in” when new members join, and distribute proceeds of their “shares” when they leave?

Is it fair for a faithful remnant of Episcopalians, no matter how small, to have to fight to stay in their accustomed building?

Considerations of fairness cannot ignore parishioners wishing to remain Episcopalian within congregations that, predominately, want to leave. Is it fair for a faithful remnant of Episcopalians, no matter how small, to have to fight to stay in their accustomed building? Yet, advocates of the right to withdraw completely would have a vestry make a decision to leave the Episcopal Church by the same rules under which it might decide to replace a copy machine.

As a practical matter, allowing congregations to leave with parish property is surely a bad precedent. If one congregation succeeds in doing so because of one grievance, others will certainly follow. And others will follow them, perhaps for less severe grievances, until splitting becomes easier than staying together. History teaches that churches that split do not easily reunite. Whereas denying parish property to a disgruntled congregation might not preserve unity forever, it might assure it long enough for passions to dissipate and for cooler heads to prevail. Similar reasoning guided the House of Bishops’ adoption of its Delegated Episcopal Pastoral Oversight (DEPO) plan.

Parochial no-fault divorce, on the other hand, could facilitate even outright theft: identify a troubled parish, take over its lay leadership, leave the Episcopal Church, sell the real estate, and divide the proceeds. This strategy might seem far-fetched, but it is important to recognize that the Dennis canon can be a bulwark against indefensible abuses.

The strongest pragmatic argument for allowing a congregation to leave with its property is that doing so would avert protracted litigation. The Chapman letter [TLC, Feb. 15] suggested that the Episcopal Church could be worn down by a steady parade of conflicts over property, but that parade need never march if the Church is resolute in protecting its property rights.

Ultimately, theological differences unrelated to property are what threaten schism. We can force no one to remain Episcopalian, and, if a minority cannot tolerate communion with those who disagrees on a point of doctrine, we can but pray that they find peace elsewhere. In the absence of compelling legal, moral, or pragmatic arguments for ceding property to dissidents, however, any demand by them for property based on God’s being on their side is a pure right-of-revolution argument. As a practical matter, anyone can claim this right, but no one can grant it.

We should all hope, pray, and work for reconciliation. Arguing over property does not become missionaries of the gospel. Perhaps recognizing this will strengthen our resolve to maintain our traditional Anglican unity within diversity, and, thereby, to do better the work that God has given us to do.

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