The Waukesha Freeman had an article in today's paper about the church in Elm Grove being sued by the diocese. I've put together this Q&A to try to answer some of the basic questions of the situation...
Q: Why are they leaving the Episcopal Church?
A: I have not seen the letter qualifying their actions, but from my perspective, it has to do with dissatisfaction with the Episcopal Church for two real reasons:
- Disagreement with the Episcopal Church over issues of human sexuality. Specifically for consenting to the Election of a partnered gay man to be the Bishop of New Hampshire and for not bringing certain bishops to trial for authorizing diocesan liturgies for same-sex blessings.
- Long-standing disagreement with changes in the church in the last fifty years, including (in their case) the 1979 BCP.
They will probably claim all sorts of other things, like "relativism" or "modernism" or "unitarianism," but these arguments are weak in my opinion. There has always been a minority of unitarianism in American Anglicanism (Thomas Jefferson being the most prominent) but it never has and does not currently reflect the church as a whole (See my post "Who are these revisionists?" for a longer statement on this.) A wish for clarity on the part of human sexuality is the primary mover and the older arguments lurk underneath the surface. It is especially puzzling in this case, considering that the Diocese of Milwaukee has taken a rather traditional stand on the issues at stake.
Q: Can they leave the church?
A: While it is possible for people and clergy to leave the Episcopal Church, it is not possible for a congregation as a body to leave the church. We are not a congregationally-ordered church. We are hierarchical, similar to the Roman Catholic and Methodist churches. In an organizational sense, congregations are admitted to the church and disbanded by actions of diocesan convention. According to canon law (which are the laws that govern how the church operates and which every ordained minister vows to uphold in their ordination vows) congregations do not have the authority to join or leave without the consent of the convention. This follows our traditional Anglican organizational theology (called ecclesiology) that states that the diocese is the smallest level that the entirety of the church is present, consisting of the people of God gathered around a bishop and his/her college of presbyters (priests.) This has been reaffirmed repeatedly in both intra-Anglican and ecumenical documents shared with the Roman Catholic and Eastern Orthodox churches.
This is stated in a legal sense in the so-called "Dennis Canon," which was added to the canons in 1979, and states:
"All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church [i.e., the Episcopal Church in the United States] 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."
This canon didn't cause a lot of conflict until now. In fact, the former Bishop of Fort Worth (who has now left the church) used this canon in 1992 to prevent a parish from leaving with their property.
So yes, people can leave, but no, an organized parish cannot leave with its assets. The question of whether an entire diocese can leave with their assets is one that is going to work its way through the courts for the next several years. The plain reading of the Dennis canon, if upheld by secular courts, seems to support that all diocesan property is held in trust for the national church. A diocese can no more secede from the national church than a state can secede from the United States, no matter how good they think their reasons are.
Q: Why are they being sued?
A: As stated above, people can leave, but congregations can not. In effect, the former parishioners have become members of another denomination (The Anglican Church of Nigeria, I believe) while trying to keep the assets and deny their use to parishioners who wish to remain part of the Episcopal Church. It is really no different (in legal terms) than if they had decided to become Baptists. The Nigerian church is part of the Anglican Communion, but operates under a different Constitution and Canons and Prayer Book. Although the Episcopal Church is in communion with other Anglican churches, we are not part of the same church in a legal sense. My understanding is that the diocese has repeatedly attempted to communicate with the leaders of the disaffected, but that they have been rebuffed. In a case like that, it is necessary to resort to the civil courts in order to protect the assets that belong (as everybody agreed to by previously operating under the canons) to the Diocese of Milwaukee in trust for the Episcopal Church. While such actions are unfortunate, they are necessary for the bishop and council to take because of their fiduciary responsibility to the corporation of the diocese.
Q: How will this turn out?
A: Hard to say, but most of the time, dioceses are successful in these lawsuits. This is because most state courts apply what are called "neutral principles" to the dispute, citing the separation of church and state. It works like this:
- The Episcopal Church claims we are a heirarchical church and state plainly in our canon law that this is how we are ordered. It is a theological and not just a legal principle. We are called "The Episcopal Church" (meaning "Church with bishops") for a reason.
- If a court rules that a local congregation has the right to leave with its property, the court has in effect made a theological decision for the church, saying, "You say that you are hierarchical, but we say you are congregational."
- So most state courts generally cite the separation of church and state and side with the diocese. It does not matter whose name the deed is actually in.
Here's a quote from a Supreme Court of California decision last month:
"Applying the neutral principles of law approach, we conclude that the general church, not the local church, owns the property in question. Although the deeds to the property have long been in the name of the local church, that church agreed from the beginning of its existence to be part of the greater church and to be bound by its governing documents. These governing documents make clear that church property is held in trust for the general church and may be controlled by the local church only so long as that local church remains a part of the general church. When it disaffiliated from the general church, the local church did not have the right to take the church property with it."
The major place where this has been murky is in Virginia, which has laws from the Confederacy still on its books that allowed churches to separate from their national denominations after sucession. The constitutionality of this law will probably be challenged by the Episcopal Church, with help from the Roman Catholics, Methodists, and several other denominations that are concerned about the ramifications.
My understanding from local lawyers is that the "neutral principles" approach has been upheld in Wisconsin state law.
Q: So what should they have done?
A. They had three options...
- Instead of leaving, stay as the loyal opposition. That's the way Anglicans have handled it in the past. Barring that:
- Negotiate with the diocese to reach a settlement. Barring that:
- Leave, following the Biblical model and taking nothing with them other than the shoes on their feet. If, following their argument, the Episcopal Church is apostate and God favors them, then they will prosper. To leave and to try to take the property with you is to say, "We trust in the Holy Spirit that we are correct, but not that much!" If God is really calling them to something new, they are currently in the place of the rich young man who when Jesus said to him, "Sell everything you have and follow me" he turned sadly away. To leave with nothing is a position of integrity.
I may expand this FAQ if more comes to mind or additional questions are asked....
David+
