by 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. 38–39).
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.
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?
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.