Following my post of September 24, and still with all due respect for the work Bishop John Howe did in his days as national director of NOEL, I am posting yet another of the ECUSAn bishop of Central Florida's public statements. I am posting it because it demonstrates the problem facing any ECUSAn parish whose people want to leave that heretical sect. Since this blog is international, it may come as news to some readers that, for the last few decades, parish properties, as such, have not existed in the Episcopal Church. Except for California, where, long ago, now retired Archbishop Robert Morse won a lawsuit to keep church property for the local congregation in Berkeley where he had served as parish priest, the church properties are owned by each diocese, a rule protected by legal precedent. Furthermore, the Episcopal Church managed to have the Canon Law amended so that each diocese holds these properties in trust for the national "church" headquartered in New York. With the exception of California, and a few rare cases regarding very unusual land grants, the courts have always ruled in favor of the diocesan ownership. This may be good news for bishops such as Bps. Iker and Ackerman, and all "Common Cause" bishops, if they pull their dioceses from the denomination, since the courts may consider national ownership to be in conflict with the "local" or diocesan ownership that has been upheld by precedent. Whether or not to contest in court such a congregation's wishes to withdraw, however, is the call of each diocesan Ordinary. But, for ECUSAns, or may I say, for Episcopalians in Central Florida who wish to convert to real Anglicanism, or something a little closer to it than ECUSAn heresy, the Evangelical, Charismatic John Howe stands as much in the way as do the bishops who support Same Sex Blessing, or, for that matter, "a woman's right to choose" to murder her baby.
The religion business makes strange bed fellows.
Bp. Howe's dictatorial statement, to those whose money, time and energy have been keeping church properties in good repair:
Dear Brothers and Sisters,
There has been a great deal of conversation over the past few years about whether or not those who wish to leave The Episcopal Church might "negotiate" with the Diocese of Central Florida to purchase church properties and affiliate with some other Province of the Anglican Communion. It is time to end these discussions. The simple answer is: No. The Windsor Report and the several Communiques from the Primates of the Communion have said that the incursions by foreign Bishops and Archbishops are illegitimate. The Presiding Bishop has said that The Episcopal Church will not allow the purchase of any property by any group that seeks to affiliate with an offshore Province. I will not permit the passage of any Resolution by the Diocesan Board, the Standing Committee or the Annual Convention of the Diocese of Central Florida that seeks to alter the accession clause in our Constitution to the Constitution and Canons of The Episcopal Church, or that seeks to transfer any property held by parishes in trust for the Diocese of Central Florida and The Episcopal Church. If you must leave, for conscience sake, I will do all in my power to make your leaving amicable. But when you make the decision to leave you immediately cease being a member of The Episcopal Church and the Diocese of Central Florida. You immediately cease having any say in decisions regarding any congregation of the Diocese or its property. Please be aware of this in any plans you might be making.
Warmest regards in our Lord,
The Rt. Rev. John W. Howe
Episcopal Bishop of Central Florida
Compare this to the very important line in our own document, The Affirmation of St. Louis: "The right of congregations to control of their temporalities should be firmly and constitutionally recognized and protected." Is it hard to see which is ethical, and which is tyranny?
As a priest friend said to me recently: "All Episcopal bishops are compromised. Compromised lives means a compromised Gospel."
(Another essay dealing with gender and the primeval origins of the priesthood is now available at http://jandyongenesis.blogspot.com/
I'm not sure the property quetion is as cut and dried as you say it is. I assume you are referring to the Denis Canon. If so, the legality of that canon has been and is being challenged by departing parishes, and I believe some in California have already won. The big fight right now is going on in Virginia. Perhaps someone can tell us more about this.
Bottom line, though, is that Bp Howe, by his letter, has made it clear ain't no one gonna take any property without a big fight.
As I understand it, the situation in Australia is no better, at least in respect of individual parishes.
The solution of course is for the flocks to quit contributing anything to the upkeep of the parish properties and instead funnel such funds into a shelter corporation to buy the property at the fire sale when the bishop wearies of paying for electricity and gas and insurance and such. This, of course, is the tried and true "Virginia" solution to make priests who won't go away, go.
"The right of congregations to control of their temporalities should be firmly and constitutionally recognized and protected."
Property rights of a religious entity are a problematic matter, both in ecclesiology and in secular law. I am extremely glad of the "should" in the above clause of the St. Louis Affirmation, as it appears to make it more of a statement of what we find desirable than a statement of what must be. Such a principle may be, under most circumstances, a desirable one, but it cannot be treated as an absolute.
1. We are not a congregational denomination. In Catholic polity it is not the local congregation that is the basic unit of the church. It is the assembly of the clergy and people, however locally organized, around their bishop, in what we have come to call a diocese. Historically the parish is a subdivision, for convenience's sake, of the diocese.
Therefore, TEC is formally correct in asserting that the diocese has an interest in the property of the local congregation.
2. However, also historically, a declaration that a bishop, diocese, or jurisdiction is heretical, can be deemed as a declaration that it is no church at all, and therefore incapable of owning property as a church.. Therefore, the question of which of two parties in a schism retains capability of ownership is often a difficult one. There seems seldom to be a reasonable way for a secular society to make such a determination.
3. There are a lot of complicating factors, such as the terms of a gift or bequest, the precise wording of local church bylaws, the degree of interest granted to a lending authority in the obtaining of finances (the lender often being the diocese or a national church agency). Often a local congregation has, perhaps inadvertently, bound itself in its temporalities to the diocese or national church. A case oin point, in a congregationally organized denomination: The Lutheran Church in which I grew up had a carefully crafted clause in its constitution, stating that, in case of schism, the continuity of the congregation, and its property, would belong to that part that held to the standards of and remained in fellowship with the Missouri Synod. Many years later there was a breakoff from the Missouri Synod (since become part of ELCA). The church voted to join the new denomination. If so much as one family had refused to go along with the majority, and had insisted on organizing separately within Missouri Synod, they would have had title to the property. In the event there was no schism in the local church and the property was uncontested, but the possibility was there. Thus, even under law, not every parish has unencumbered claim to its temporalities.
4. This is, to my mind, the most important point: The rich young ruler that came to Jesus asked what he must do to be saved. He was told to sell all that he had and give it to the poor. He seems to have insisted, quite correctly, that what was his was his, and that he had a right to keep it, but in keeping it, he lost his soul. "Ye cannot serve God and Mammon," said Our Lord, and I'm afraid we give a bit too much appearance of trying to do just that when we pour our effort in this way into property matters.
This is said, not in criticism of anyone or any action being taken, but as a caution lest we allow concerns of property to divert our attention from the pearl of great price. TEC and its Bishop Howe have effectively demonstrated where their priorities lie. May God have mercy on them. Many Continuing (and also conservative) parishes have showed themselves willing to walk away in the pursuit of truth. Even if we should make the effort to hold what seemingly should be ours, may we hold firmly to that latter pattern. Even a splendid building is not worth the loss of the Faith.
As I understand the precedents in California, because of the ++Morse case won back in the late 70s, I am not surprised. What I was saying is that the Denis Canon could be ruled against in favor of a departing diocese, one that is leaving ECUSA, since the precedents (outside California) have been "local" which means diocesan. So, if, for example, Dallas/ Ft. Worth leaves ECUSA, and ECUSA tries to take the diocesan property, the precedents that have, up until now, made the ECUSAn bishops happy, could work against the national "church."
A quick note-several other states have supported a parish's rights to property-notably Kentucky. The bulk of the case law cuts against the individual parish.
On the polity question, here is where the rubber hits the road. We can say what we will about "catholic ecclesiology", but part of the heart of St. Louis was that "never again" moment concerning ownership of the temporalities. Local parish ownership had been assumed as a part of the American Episcopal polity, which was the very reason that the Denis Canon had to be sneaked through to oppress the orthodox. Indeed, in the 19th century there was a push by diocesans to have "gift" deeds recorded on parish property. thus, I would take issue with the notion that ECUSA, TEC. DRECK or whatever they call themselves is "correct" in their claims. A full Roman Catholic understanding of polity viz. temporalities never was at the heart of the Episcopal Church--for it was the Protestant Episcopal Church with all that that means.
Property has its importance-place having its spiritual dimension. Just ask the folks in Boston who have had their parishes closed and sold to satisfy judgment creditors.
I agree that temporalities are certainly not all important. However, not to be too critical, an account that sees the parish as an "administrative convenience" is an inadequate and authoritarian view of polity that finds little support in Anglican canon law or the American experience. (Bear in mind,that the CofE, as an established church, is in a completely different place juridically.)
From the perspective of one who has litigated these cases, my best advice to those departing is walk away, avoid the horrendous litigation costs (monetary and spiritual) and let Shinto-Episcopalians like Howe choke on their whited sepulchres. There already is a massive property sell-off underway, and there are many clever (and even legal!) avenues to retrieve the property often at pennies on the dollar without filling the coffers of Baal.
Fr. Charles H. Nalls, SSM
Canon Law Institute
Thank you, Fr. Nall, for a well-balanced response.
My suspicion is that the Lord would yield on the matter of formal correctness, as He did (at least often) with the Pharisees, but would point out (as He did with them) that what is "correct" is not necessarily "right" -- that insistence on rights often leads to the loss of one's soul.
Dear Canon Nall,
Your counsel in your final paragraph has also been mentioned on other Anglican blogs. The response to it that makes sense from a pragmatic point of view is for *all* the departing parishes to resist even if that means legal recourse, and this collective resistance will bankrupt the diocese and TEC. So if all resist, then all may be saved. But if departing parishes don't resist then it makes it that much more difficult for other departing parishes to retain their church properties.
It is true that a united legal battle could bankrupt the empire of Baal and its dioceses (as a recovering lawyer with some antitrust experience I would never refer to these entities as "Baby-Baals".) the problem is, first, a concerted legal effort among those leaving. It never has been possible, and the witness of the parishes in Virginia is a case in point. As well, even in this somewhat fragmented effort (at least one "resisting" parish has caved), unity has been by no means a harbinger of success in light of the jurisprudence and activist judges in the pocket of ECUSA.
The other points to be considered are the sheer dispatity of resources in the litigants, the toll on volunteer vestries participating in commercial litigation and the cost in time to do the work of Christ spent in courthouse shenanigans.
First, CLI's standard cost-out on property litigation runs from about USD 1 mil. to USD 2.7 mil. depending on the extent of discovery and whether the case goes out on motion. ECUSA has this in its coffers and will spend it, verses well-heeled parish groups who can't seem to raise the litigation swag. Indeed, news reporting locally shows the Virginia parishes well-behind in the litigation fundraising effort.
Secondly, the emotional and spiritual toll on vestries is unimaginable to those who have not been through one of these. You are stacking ordinary good people with day jobs who may never have seen the inside of the courthouse up against a property-cult that will stop at nothing to win. Layer in the occasional personal claims against the vestry (a la Bennison v. St. James the Less) and the anonymous hate calls and threatening letters that are always generated, and you have a very personal and highly destructive situation for the volunteer vestryman.
Finally, one has to ask, why take the time from mission and resources that can be husbanded for the work of Christ to fuel litigation. Mind you, I have never been one to begrudge the many impoverished lawyers their piece of the pie, but why engage in a costly duel in a secular arena on a legally tenuous (in many jurisdictions) fight? If it is simply to deprive the ECUSA beast of resources, I don't think it a valid reason. (There are compelling civil procedural aspects and professional responsibility aspects I won't inflict on the group.)
To be sure, there are some bright spots in the church property litigation arena. These keep folks like me busy giving talks and writing ever-so-exciting articles. However, I would be both a bad priest and worse lawyer if I did not engage in full disclosure on the nature of these types of causes of action.
With every blessing.
Fr. Charles H. Nalls, SSM
Canon Law Institute
Poetreader writes, "In Catholic polity it is not the local congregation that is the basic unit of the church. "
I question whether there is such a thing as "Catholic polity." Catholic Order, yes indeed, but "polity" is a very difference thing from Order.
The RC Church, the various Eastern Orthodox Churches both both sides of the Atlantic, the C of E, the Episcopal Church US (before and after the present crisis) have very different polities. Just compare
the polity of OCA and Greek Archdiocese of NA to see what I mean.
Also, don't try to sell the old wooden chestnut that "it is not the local congregation that is the basic unit of the church." When liberalizing bishops in the 50's and 60's started getting their filthy claws on parish property, they trumpeted that line.
Historically, parishes were established under the aegis of the Bishop of London in the colonial period, with help from SPG and others. They had no diocesan structure whatever. When disestablishment came at the end of the Revolution in or around 1783, these parishes were independent.
They got themselves together and organized dioceses. In the American Church, dioceses are the creatures of the original parishes.
Believe what you will about what Catholic Order implies about polity. But you cannot rewrite history to fit your doctrinal opinions.
Historically, the American Church has had a mixed polity, with prelatical, connectional, and congregational elements. It worked pretty well until the theology went modernist in the 1950's and 60's.
And when doctrine goes wrong, there is no polity in the world that will work.
Laurence K. Wells
Mr. Wells said:
"And when doctrine goes wrong, there is no polity in the world that will work."
Which is pretty much what I've been trying to say. There is no cut and dried way of dealing with temporalities. Ultimately, though we are in this world and are thus to make proper use of the things of this world, they are not ours in the first place. When teaching is right, such affairs will be handled in accord with it, even if the formal arrangements are less than ideal. When teaching is wrong, there is no way that such affairs will be handled as they should, no matter how good the rules look.
We could argue all day about the specifics of Catholic order or polity and the way it has been expressed in history, but ultimately the only rule truly applicable is to hold lightly to the things of this world.
Thank you very much to both Canon Nalls and Fr. Wells for their well-written and "spot on" posts. Local congregations' inalienable right to their temporalities is one of the most bedrock principles of the Affirmation of St. Louis and the entire Continuing Church Movement. It is in fact really the way things mostly worked in the Episcopal Church up until the 1970s. It is also one of the reasons that the founders of the Polish National Catholic Church broke away from the Romans in this country, if memory serves. And many of the Eastern Orthodox in the U.S. operate similarly.
Despite the multitude of jurisdictions and jurisdiction-hopping that is perhaps one of the unintended consequences of this principle, it seems also to have worked quite well in keeping much of the Continuing Church honest and true to the reasons for its establishment. Any attempt to move away from local control of temporalities will be roundly rejected by those whom Bill O'Reilly calls "the folks." It would also represent an absolute betrayal of those who gave up everything in the 1970s to establish the Continuing Church.
This is also, by the way, one reason why TAC's purported attempts to join up with Rome will never be agreed to by most of the ACA. Rome will never stand for local control, and the Americans are simply not going to sign over the deeds to their hard-earned buildings and property to some bishop or diocesan office in another city or state.
[i]"Local congregations' inalienable right to their temporalities is one of the most bedrock principles of the Affirmation of St. Louis and the entire Continuing Church Movement."[/i]
Sorry, but I can't let that pass. If I believed that to be true [i]as written[/i], I would need to flee in terror. To speak directly, if property rights is the only reason for not becoming part of the RCC -- in other words, if what they teach of the identity of the Church and the place of the Pope is true -- then it would be serious sin to let property rights stand in the way. By the same token, if the only thing that keeps one bound to a heretical denimination is property rights, then it is serious sin to remain.
Property is indeed a valuable tool, and Scripture does give support to the concept of sacred space, and for these reasons it is appropriate to own property and to make arrangements for how it should be owned. In spite of the theoretical considerations I made above, I do find ownership by the local church to be the least problematic way of doing so.
However, Our Lord is very clear, that, if we are not ready to leave everything we have, we cannot follow Him.
I don't like to sound extreme, but to make property title a 'bedrock principle', frankly, is serious heresy. Our citizenship is in heaven, and there also resides our treasure.
I have never before known any member of a CC to suggest that any portion of the Affirmation of St Louis is heretical. Parish ownership of its temporalities is indeed a "bedrock principle." The founders of the CC movement were determined that never again would a bishop hold a parish against its will by laying an inequitable claim on its building and real estate. I suspect that many a CC bishop has secretly regretted this fact, but there it is in black and white. The Affirmation speaks for itself.
Your application of the gospel text does not stand up to sound exegesis. Our Lord was addressing
unconverted non-disciples, explaining the cost of discipleship. He was not pronouncing on ownership of church property.
Laurence K. Wells+
I have never before thought about it; but, when I think of how the Provincial Development Fund of the APCK really works, the power it gives to the bishops of that dwindling jurisdiction seems like a way around the Affirmation of St. Louis. The PDF is a mixed bag, both good and bad.
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