Holding the Property and the Organisation of the Church

Dr. Peter Toon’s long discussion of the organisation of various churches and their relationships to holding their property is a great idea but, as is the case with many things about our legal system, is also easier said than done.

He is correct that congregational churches (Baptists, Assemblies of God, etc.) tend to have their local churches hold the property.  He is also correct that centralised churches (Roman Catholic, Methodist, Church of God, etc.)  tend to have their denomination (or diocese) hold the property in trust.  In these cases the holding of the property corresponds to the governance of the church.

This is not, however, an absolute necessity.  It is certainly possible for a church that governs itself centrally to have the property of the local churches/parishes held by those entities, although this would tend to dilute the power of the central church government.   It’s also possible (but much less likely) for the reverse to be true.  The legal structure of property holding and the governance of the church do not have to follow each other rigidly.

In the case of the Episcopal Church, as with many things Anglican, we have a muddle (or, to use a misused phrase, a via media.)

In many ways TEC falls between a rigidly centralised church and a congregational one.  Its episcopal form of government suggest centralisation, but its "democratic" houses and selection of ministers suggest a more congregational way.

At one time the property holding reflected this, but the adoption of the Dennis Canon in 1979 put TEC on par with more completely centralised churches by placing all of the property to be held in trust for TEC.  The problem that most parishes that attempt to secede from the church run into is that U.S. courts are loathe to interfere with the internal affairs of churches.  They reason as follows: since the parishes were part of TEC, and TEC decided to uniformly centralise the property, then it is the church’s decision and the courts don’t have anything to say about it.

The one place where secession makes the most headway is California, where the courts (for the most part) apply "neutral legal principles" to the issue.  There, they look at the way the property is titled and decide on that basis, noting that the Dennis Canon is ex post facto.  Whether other states choose to follow this remains to be seen.

The cloud to the silver lining in California is that, should the courts decide to do so, they could use the same "neutral legal principles" to interfere in the workings of the church.  Since many churches operate in a very informal legal environment, the consequences of this are unpredictable, especially in the case of settling an internal dispute about leadership or doctrine.

We can debate endlessly what is right and what is not for the TEC to do in response to parishes that want to leave.  But that doesn’t have anything to do with what we can expect legally in a property dispute.  TEC knows that, in most places, it has the upper hand in this regard, and it is unreasonable to expect them to relent.  After all, isn’t the reason parishes want to secede because TEC has departed from basic Christianity?  What can you expect?

As I said almost two years ago, sometimes it pays to yield:

One of the vexing problems that orthodox Episcopal parishes face in separating themselves from the ECUSA is the fact that the ECUSA holds the property in trust through the so-called "Dennis Canon" (which may in fact have never been properly enacted.) Parishes’ success in getting their property has been spotty due to variations in state laws and the way parish property was titled in the first place.

Sometimes, though, it’s just important to yield, as many orthodox parishes have done. Many years ago, John Wesley was walking through the English countryside when he encountered a single log bridge. Across the bridge was an opponent of his. Someone was going to have to give way, and the two men stood in a standoff.

"I never yield to asses," the opponent declared, holding his ground.

"I always do," Wesley replied, stepping aside.

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