Category Archives: Anglican church

The Legal Cases Over Property — Counting The Cost

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The Presbyterian Church (U.S.A.) came out of its 218th General Assembly with an interesting tension.  On the one hand, it created a $2 million dollar legal fund to help presbyteries with legal costs of fighting churches wanting leave the denomination with their property.  (PC-biz and my post)  On the other hand, it passed a resolution “urging a gracious, pastoral response to churches requesting dismissal.”  (PC-biz and author’s comments)

Much of the legal action that has happened in the last couple of weeks was in process at the time of GA and I find interesting the tension, or paradox, that each side had in the arguments before the California Supreme Court two weeks ago.  From the congregations’ point of view, in spiritual matters the congregation agreed to the denomination’s rules, but the property is not a spiritual matter.  From the denomination’s perspective, in this and other cases, if a church chooses to leave the denomination that is one thing, but they can’t take their property with them.  So we are getting the property separated from the spiritual and the mission aspects of the church.

As you have probably heard, in another current property battle Kirk of the Hill Presbyterian Church in Tulsa, OK, has decided by a narrow margin to buy back their property from Eastern Oklahoma Presbytery after the court awarded the property to the presbytery upon the Kirk’s departure from the PC(USA) to the EPC.  The congregation’s vote was 508 to 483 to pay the Presbytery $1.75 million for the property settlement.  (More details in the Tulsa World article)

In the midst of these court battles and financial settlements individuals are beginning to ask the question about the financial cost of these actions and how it diverts resources from the mission of the church.

One person who has publicly asked this question is Dr. Richard Mouw, PC(USA) elder and President of Fuller Theological Seminary.  In his October 13th Mouw’s Musings he talks about a conversation with a friend who suggests that the disputing sides should negotiate a compromise and contribute the amount they would have spent on legal costs to the care of AIDS orphans in Africa.  Dr. Mouw notes:

The mainline Presbyterian (PCUSA) denomination to which I belong is
experiencing many property disputes right now, as some congregations
are leaving for what they see as greener ecclesiastical pastures. When
you look at the issue historically, it is a bit ironic that the leaders
of major Protestant denominations are so adamant in their right to hold
onto church properties, against the claims of the dissenters. At the
time of the Reformation the Protestants grabbed hold of Catholic
properties with abandon—monasteries and convents as well as places of
worship—and they also simply destroyed much of the contents of those
buildings: statues, altars, and the like. And all of this was done
without any respect for the claims of those who had strong moral and
legal claims to ownership of those properties. To the “breakaway”
groups belonged the spoils.

And he closes with this:

Such an arrangement [the contributions to AIDS orphans] would have important spiritual benefits. It would
help both sides to see themselves as using our disagreements to
accomplish something together for the Lord’s work. And it could help to
reduce our anger toward each other, presenting all parties with an
opportunity to be gracious toward our opponents.

The second article along these lines comes from Jim Oakes on the blog VirtueOnline where he points out that in the Virginia Episcopal cases millions of dollars have been spent on both sides in the legal action when “so many alternatives have been available.”  While he notes that the issues are important and complex he also says “We can only hope and pray that Episcopal leaders will realize that the
high cost of this litigation has not done one thing to further the
mission of God’s church in any way.”

So what we as the church do is an important witness to the world about our faith and life.  Yes, I know that there are a variety of circumstances and in different cases different parties have exercised the legal option first.  But in this do we all consider the way the world views it and in the end, if the denomination is left with an empty building, what has been accomplished?  It is interesting that Dr. Mouw uses the phrase “opportunity to be gracious toward our opponents.”  Remember the central part of what the GA passed in June placing responsibility on all parties:

2.  
Believing that trying to exercise this responsibility and power through
litigation is deadly to the cause of Christ, impacting the local
church, other parts of the Body of Christ and ecumenical relationships,
and our witness to Christ in the world around us, the General Assembly urges congregations considering leaving the denomination, presbyteries, and synods to implement a process using the following principles:

  • Consistency: The local authority delegated to presbyteries is guided and shaped by our shared faith, service, and witness to Jesus Christ.
  • Pastoral Responsibility: The
    requirement in G-11.0103i to consult with the members of a church
    seeking dismissal highlights the presbytery’s pastoral responsibility,
    which must not be submerged beneath other responsibilities.
  • Accountability: For a governing body,
    accountability rightly dictates fiduciary and connectional concerns,
    raising general issues of property (G-8.0000) and specific issues of
    schism within a congregation (G-8.0600). But, full accountability also
    requires preeminent concern with “caring for the flock.”
  • Gracious Witness: It is our belief that Scripture and the Holy Spirit require a gracious witness from us rather than a harsh legalism.
  • Openness and Transparency: Early, open
    communication and transparency about principles and process of
    dismissal necessarily serve truth, order, and goodness, and work
    against seeking civil litigation as a solution.

A Bit More On Property Cases

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First, my thanks to Lou for the additional info on the Kirk of the Hills case that he posted as a comment to my previous post.  He reports that there will be no written decision by the judge so I can stop watching for that and we won’t have any thing there to parse for the legal theory.  This will give us the state supreme court decision, when that is issued, as the next legal step in this case.

However, another case, that of All Saints Anglican Church of Rochester, New York, is a bit more advanced in the legal system.  The case, which I have mentioned before, is very similar to the Kirk of the Hills situation with a church that raised all the money to acquire the property and build the building before the “trust clause” and was then evicted from the building by the diocese.  Again, the church has lost legal decisions and the appeals are approaching the state supreme court.  In news reports today those associated with the case are suggesting that this could be the case that reaches the U.S. Supreme Court first.  It will be close since the California Episcopal Church Cases will go to that state supreme court in about a month so they might be the federal test case.

As always, stay tuned.

The Continuing Saga of the Anglican Communion

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While the Presbyterians have been occupying my attention the past few months I have been keeping an eye on developments in the Anglican Communion worldwide.  Part of this is the mirroring of the discussions and disagreements different Presbyterian branches are having.  Another point of contact is that there is significant overlap and cooperation, on both sides of the issue, in the property litigation.  (The test cases in the California Supreme Court which multiple Presbyterian governing bodies and groups have filed amicus briefs on, is dealing with Episcopal churches.)  But maybe at the heart of it the goings on in the Anglican Communion right now make a great soap opera or high global drama.  While physical conflict is not involved, there is still the air of a great global battle with leaders on one continent allying themselves with groups on another continent.  Like in chess, Risk, or Diplomacy there are strategic positions, blocking moves, and alliances.

Well at the moment the Anglican Communion is in the middle of their major decennial meeting to which all (or almost all) the bishops world wide are invited, the Lambeth Conference.  (FYI: It is named for Lambeth Palace, the official residence of the Archbishop of Canterbury, although the conference is being held at the University of Kent.) While not a legislative meeting with such a great attendance from across the Communion is a major “Instrument of Communion” and carries some consensus and institutional weight.

For a brief review of where the Anglican Communion is at the moment, and a not very optimistic view of where it is headed, Christianity Today just posted a good summary on their web site.

To briefly review:  In the United States, Episcopal churches, and even dioceses, that are not happy with The Episcopal Church’s permissive stand on ordaining and elevating to bishop practicing homosexuals, exemplified in New Hampshire Bishop Gene Robinson, are looking elsewhere in the world for church oversight.  These groups came together with similarly oriented representatives worldwide before the Lambeth conference as the Global Anglican Future Conference, being referred to as GAFCON.  This meeting itself was a mini-soap opera because it was supposed to start in Jordan at a Dead Sea conference center, but there were permitting and visa issues and the meeting was prematurely moved to Jerusalem.  Any way, the Jerusalem conference issued a final statement,  the Archbishop of Canterbury responded, and an additional GAFCON statement followed that.

Now, as if that were not enough, on July 7 the General Synod of the Church of England voted to permit the elevation of women to bishops without safeguards, or ways to opt out, for those opposed to the women bishops.  This was greeted by an expression of concern from the Vatican about breaking with apostolic tradition and a caution to Anglican clergy that although they may be dissatisfied with their current church’s positions, they would not be roundly welcomed into the Roman Catholic Church.  The Russian Orthodox Church also criticized the action, but left open the avenue for Anglican priests to switch to that church. (Note that The Episcopal Church has permitted women to serve as bishops for a while now and the Presiding Bishop is female.)  Further votes, including one requiring a 2/3 majority, are needed and it will be a couple of years at the earliest that this could happen.

So, where does this leave the Lambeth Conference?  We will have to see.  It is interesting to note who was not invited to this event that is supposed to include all the bishops:  Prominent on the not-invited list was Gene Robinson.  In addition, a bishop with close ties to the ruling regime in Zimbabwe as well as U.S. bishops who had been elevated by overseas archbishops over the objections of The Episcopal Church.  Who did not come?  Many of the no-shows are bishops who would have liked to have seen the supporters of Bishop Robinson on the not-invited list.  In addition to these divisions over doctrine, there are reports that the conference is heavily in debt and does not have the funds to pay the final bill.

While it is tempting to draw one-to-one comparisons of the Anglican situation with the PC(USA) situation, such as GAFCON = New Wineskins, I will leave that as an exercise for the reader.  However, I will leave you with one other item about Lambeth, and that is the presence of religious cartoonist Dave Walker, invited as the “cartoonist in residence” for the event.  I would point you to this contribution in particular.

Episcopal Church Update and their Polity Debate

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“Blood on Every Page”

That is a phrase we in the Presbyterian Church (U.S.A.) throw around to explain the volume, detail, and nature of our Book of Order.  The phrase is taken from one of our better know books on polity and expresses the fact that much of what has made its way into the Book of Order can be traced back to specific problems that arose and after the fact we decided that clarification or detailed rules were needed to address future instances.  One valid criticism of the proposed new Form of Government is that in the revision we will lose an accumulation of “institutional memory.”  It is also one of the strong arguments for the revision that the Book of Order is so cluttered with these reactive amendments that maybe it is time to start over with a clean copy and begin again.

If you have been following the drama in the American Episcopal Church the last few weeks you know that the recent developments have come down to an argument about applying their church, or canon, law.  I will return to that argument in a moment, but let me fill in the details from my last post  on the topic back in early December.  At that time the convention delegates to the Diocese of San Joaquin, California, had voted by a wide margin to change the diocese’s bylaws to change their oversight from the American Episcopal Church to the Southern Cone in South America. (Episcopal news story reporting that action)  The reason for the diocese’s departure, like in other mainline churches today, is the controversy over ordination standards related to practicing homosexuals.  Since then proceedings have been underway against the Bishop of the Diocese of San Joaquin, John-David Schofield, for “Abandonment of the Communion.”  Well the proceedings reached their final step on March 12, 2008, when the House of Bishops voted to agree with the investigation board to the “deposition” (that would be removal, not testimony under oath) of Bishop Schofield as well as a retired bishop, William Cox, from Maryland.  (Episcopal news story)

For Bishop Schofield’s part, he sent, or at least posted on the Diocese web site, a letter of resignation from the House of Bishops on March 1.  Reception of this letter by the Presiding Bishop has not been acknowledged.  So we have “You can’t fire me, I quit.”

Also, the House of Bishops at their meeting approved Bishop Jerry Lamb to serve as provisional bishop to the Continuing Episcopalians in the Diocese of San Joaquin.  The appointment needs to be confirmed by the diocese on March 29.  (Episcopal new story)

While I am not sure what all the implications of deposition are, Bishop Schofield and the majority of the Diocese seem happy to have joined, and welcomed by, Southern Cone.  The deposition seems a formality at this point, unless the American Episcopal Church can find some muscle from either civil authorities or the Worldwide Anglican Communion, to get the realigned churches in San Joaquin back in the fold.

Now, here is the current controversy over polity:  The section of canon law related to the process of removing a bishop for Abandonment of Communion ( Title IV Canon 9 ) says in Section 2:

Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

The vote was taken by voice vote so the exact count is not known, but as the Living Church News Service reported on March 14, from their reading of this section the vote could not have been valid.  By their count there were 294 members of the House of Bishops entitled to vote on March 12.  That would require 148 bishops to vote in the affirmative to agree to the disposition.  However, they know that only 131 bishops were registered for the meeting and 15 of those left before this item of business.  By their reading “a majority of the whole number of Bishops entitled to vote, shall give its consent” had not happened and the deposition was not valid.

Needless to say, the church hierarchy disagrees with this interpretation and issued a response the next day.  Here it is in its entirety:

The Presiding Bishop’s chancellor has confirmed the validity of votes
taken in the House of Bishops on March 12, correcting an erroneous
report published online March 14 by The Living Church News Service.  

Chancellor David Booth Beers said votes consenting to the
deposition of bishops John-David Schofield and William Cox conformed to
the canons. 

“In consultation with the House of Bishops’ parliamentarian prior to
the vote,” Beers said, “we both agreed that the canon meant a majority
of all those present and entitled to vote, because it is clear from the
canon that the vote had to be taken at a meeting, unlike the situation
where you poll the whole House of Bishops by mail. Therefore, it is our
position that the vote was in order.”

A quorum had been determined at the meeting by the House of Bishops’
secretary, Kenneth Price, Bishop Suffragan of the Diocese of Southern
Ohio.

So the official interpretation, by somebody like the Stated Clerk, is that the vote was valid.  They interpret the phrase in Section 2 “a majority of the whole number of Bishops entitled to vote” to mean “a majority
of all those present and entitled to vote.”  I will say that I may be missing certain implications of the next line “because it is clear from the
canon that the vote had to be taken at a meeting” because I am a GA Junkie, not a HOB (House of Bishops) Junkie.  They appear to be saying that “since this vote must be taken at a meeting by implication Title IV.9.2 must refer to those at the meeting.”  But others who are more familiar with Canon Law still see problems with this, like this viewpoint expressed by the Anglican Communion Institute today.

In the midst of this it is interesting to note one final item in the Anglican controversy at the moment.  Coming up this summer is the Lambeth Conference in England, a once-a-decade gathering of about 800 bishops from the Worldwide Anglican Communion.  The conference is by invitation and participants do not come as specific delegates or representatives of their churches.  At the present time Bishop Schofield is on the invitation list, but Bishop Gene Robinson, the openly gay Bishop of New Hampshire, is not on the list and will probably only attend as an observer.

And after that diversion we now return you to our regular Politics of Presbyterianism.

UPDATE:  At about the same time I finished this up and posted it Virtue Online posted a detailed entry with quotes from several, presumably conservative, cannon lawyers that argue the interpretation of the Canon Law making the vote valid is not reasonable.  In particular one expert cites other places in the Canon Law where there are detailed specifics about which bishops need to vote.  This corroborates the interpretation that “the whole House of Bishops” means everyone eligible, not just those present.

UPDATE 2:  In looking over this polity issue I have found a post on the blog Father Jake Stops the World which takes the position that the vote was valid and tackles the canon law and the math to explain why.  His argument centers on the necessary quorum.  However, he closes with a comment I think a lot of people could affirm at this point: “The wording of that canon certainly needs to be cleaned up. That is quite clear.”

Episcopal Diocese to Realign and Church Property in California

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Yesterday the Diocese of San Joaquin took their second and deciding vote to leave The Episcopal Church and realign with the southern-most Anglican Province in South America, known as the Southern Cone.  The vote was 70-12 within the clergy and 103-10 among the lay delegates at the annual diocese convention in Fresno, California.  A representative of the Archbishop of the Southern Cone read a statement from the Archbishop that began “Welcome Home. And welcome back into full fellowship in the Anglican Communion.”

While roughly 60 churches individually have left the Episcopal church and realigned with overseas Anglican Provinces, this is the first diocese to part ways with the Episcopal church over the differing views of the Bible and homosexuality.  Three other dioceses, Fort Worth, Texas, Quincy Illinois, and Pittsburgh, Pennsylvania, are in the process and others are discussing beginning the process.  In the Diocese of San Joaquin there is the group Remain Episcopal that is loyal to the Episcopal Church, that opposed the realignment of the diocese, and whose web site says they will remain with the Episcopal Church.

I think that it goes without saying that the Presiding Bishop Katharine Jefferts Schori is not in favor of the move.  She is quoted in an Episcopal Church news story as saying “The Episcopal Church receives with sadness the news that some members of this church have made a decision to leave this church.”  The quote finishes with “The Episcopal Church will continue in the Diocese of San Joaquin, albeit with new leadership.”

The news is full of stories, such as this one from Associated Press.  Also, the San Joaquin Diocese news page has several entries about the convention and the action.  I have found nothing from the Worldwide Anglican Communion yet.

This action brings up the interesting question of property ownership when a whole diocese (or presbytery) parts ways with the denomination.  The Diocese of San Joaquin says churches that wish to remain with the Episcopal Church can stay with their property.  The word from the national office and the group Remain Episcopal is that they will wage the legal fight to keep all of it.

All of this comes in the midst of news in California that the California State Supreme Court will be hearing a church property case to set the precedent for the state.  The test case will be one from the Diocese of Los Angeles for St. James church in Newport Beach, Orange County that voted to leave.  In the first round in Superior Court the church won the right to retain its property.  This was overturned by the appellate court which ruled in favor of the denomination using “implied trust.”  Initial briefs have been filed with the Supreme Court but a court date has not been set.  It will probably be in the spring.  Several additional cases already decided by lower courts and future cases will hinge on this decision.  I know that PC(USA) Presbyteries and Synods are watching it closely.  A news story on it is reprinted on Anglicans United.  and on the Rev. Canon Dr. Kendall Harmon’s Weblog TitusOneNine he has a good description of the cases and the legal background.  The law firm Payne and Fears that represents the churches has posted the initial brief on their web site.  The brief argues their case including several Presbyterian cases.  Finally, these issues are discussed more generally and with a national scope in an interview that the Orthodox Anglican web site Virtue Online did with canon lawyer Rt. Rev. William Wantland.

It is no exaggeration to say that this is a very closely watched case and it will define the landscape in California for churches in hierarchical denominations that want to leave with their property.

Update on the Anglican controversy

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At the present time the web site Anglican Mainstream is reporting that the Archbishop of Canterbury has added his voice to the controversy asking the Primate of Nigeria not to install the Rev. Martyn Minns as the bishop for  the Convocation of Anglicans in North America.  In addition, they are reporting the support of 30 members of the Church of England General Synod for the installation. The news about the Archbishop of Canterbury is about half way down in the article.  So far I have not seen this reported by The Anglican Communion News Service or the Church of Nigeria, but within the last few minutes the Episcopal Church has posted a press release.

Some news from the Anglican/Episcopal controversy

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Here is a quick run down of some recent happenings in the American Episcopal Church and it’s differences with the Worldwide Anglican church.

1)  The Archbishop of Canterbury, Rowan Williams, has announced he will meet with the American Bishops after initially saying that he did not have room in his schedule.  The meeting will take place in September at the regularly scheduled bishops’ gathering.  You can read about it in an Episcopal press release and an Anglican Communion News Service piece.

2)  With the passage of civil union legislation in New Hampshire, New Hampshire Bishop V. Gene Robinson has announced that he and his partner will be having a commitment ceremony.  One of many news reports, this from ABC News or another one from the Boston Globe.

3)  The Nigerian Primate Peter J. Akinola plans to install Martyn Minns as a bishop in the Convocation of Anglicans in North America (CANA).  This does not sit well with Episcopal Presiding Bishop Katharine Jefferts Schori who wrote Rev. Akinola to complain that this is outside the usual traditions and would not help reconciliation efforts. (Again, you can read the Episcopal press release or the Anglican Communion press release.)  In a response, Akinola turns the tables on her by suggesting it is the Episcopal Church’s liberal standards that have violated the traditions of the church and he is supporting a communion that is upholding tradition.  The response is available on the Church of Nigeria web site as well as Episcopal and Anglican press releases.

4)  The web site VirtueOnline by David Virtue specializes in covering and analyzing this controversy from the orthodox perspective.  Currently they have an interview with Martyn Minns about the installation this weekend.  There are also a number of commentaries.  One from April 7 talks about the Bishop of Los Angeles J. Jon Bruno and his reported attacks on the orthodox Episcopalians and the Archbishop of Canterbury.

5)  Finally, one more item that I am not entirely sure what to do with.  The Layman Online has run an article by the Rev. Canon David C. Anderson, president and CEO of the American Anglican Council that originally ran in the council’s weekly newsletter.  In the article there are several claims that the PC(USA) national staff and the Episcopal church hierarchy are working together on the legal processes around property and that the Episcopal church is using some of the strategy in the controversial legal memos from the PC(USA) OGA.  In addition, the commentary says that a Presbyterian governing body not specified has filed a friend of the court brief in the Episcopal church’s legal dispute against St. James Anglican Church in Newport Beach.  (In researching this it appears to be old news since this legal dispute appears to be settled in St. James’ favor back in January 2006 based upon this news/blog item from the American Anglican Council.)  I am currently trying to track down more on this item.