One of the oldest religions in the United States is at the forefront of the development of property and First Amendment law. In 1607, with the celebration of Holy Eucharist on a fallen log under a tent in Jamestown Virginia, the Episcopal Church found its beginning as the American branch of the worldwide Anglican Communion. Today, under the leadership of Rt. Rev. Robert Duncan, the Bishop of Pittsburgh, the seeds of the demise of the Episcopal Church as we know it have been planted as the synods of the Dioceses of Pittsburgh, PA, San Joaquin, CA, Quincy, IL, and Fort Worth, TX, and potentially more to follow, have voted themselves out of the Episcopal Church. The Episcopal Diocese of Pennsylvania (which consists of the Philadelphia five county area) is the fifth largest Diocese in the Episcopal Church. If a critical mass of the faithful formed a sufficiently significant voting bloc, the Diocese of Pennsylvania could be another diocese that departs from the Episcopal Church in 2009.
Over the last forty years, there has been a slowly growing movement of liberal theology within the Episcopal Church causing many faithful Episcopalians to lose faith in the National Church to adequately preach, maintain, and defend the historic Christian faith. As a result, Episcopalians have been leaving the Episcopal Church in greater numbers with each successive year, reaching a peak in 2008 with the departure of entire dioceses. The departure of dioceses from the National Church has raised as yet unanswered questions about the nature of the property ownership by a religious institution. Specifically, what entity owns church property, the National Church or the diocese?
Of course, property disputes among religious bodies and their members are hardly new. Over the last century and a half, Courts from around the country have generally used two overarching guidelines when ruling on such cases: (1) avoid involvement into inter-church politics as much as possible and (2) church property in a hierarchical church is owned by the diocese (or presbytery, etc). The distinctive issue that has arisen, in contrast to previous cases, is that now entire dioceses, as opposed to individual parishes/congregations, have attempted to leave the National Church.
Supporters of the National Church keeping the properties cite to the so-called Dennis Canon. The Dennis Canon (Title I.7.4 of the Episcopal Church canons), allegedly passed by the 66th General Convention of the Episcopal Church in 1979 states that “[a]ll 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.” Therefore, under the Dennis Canon, those seceding from the National Church must abandon their property, as it remains the property of the National Church. Supporters of the dioceses seceding from the National Church argue that the Dennis Canon was never actually passed by General Convention and none of the records surviving from the General Convention indicate that it ever passed. Suffice it to say, the court is loath to inject itself into this sort of interchurch squabble. Instead, when such issues are litigated in a civil court, the court will analyze the matter based upon property ownership and the corporate relationship between parish, diocese, and national church.
If the Diocese of Pennsylvania, at its next Diocesan Convention, votes to disassociate itself from the Episcopal Church, it would be very likely the National Church would bring an action against the Diocese for possession of diocesan property, including the real estate and all personal property owned by the diocese, such as the fixtures, prayer books, hymnals, and vestments, as well as the ejectment of parochial authorities, like rectors or perhaps even vestries. Supporters of the National Church would assert that the National Church is the top of the hierarchy for which all dioceses hold their property in trust and such a view is consistent with the spirit and tenor of existing case law. Those in favor of seceding from the National Church would assert that the National Church is an association that dioceses freely joined and from which can just as freely withdraw. For example, dioceses in the American South withdrew from the National Church along with the states in which they are situated when they seceded from the United States before the Civil War. These dioceses withdrew from the National Church without objection from the same, and were freely readmitted after the War. Furthermore, it is worth noting that properties within dioceses are virtually always deeded to the diocese itself and not the National Church.
2008 saw the departure of four dioceses from the Episcopal Church and 2009 could see further departures. A concerted movement among traditional Episcopalians in the Philadelphia area could lead to the introduction of legislation at the next Diocesan Convention to move the Dioceses out of the National Church. If successful, significant civil litigation by the Episcopal Church against those seceding is likely. At present the Episcopal Church is weighing its options regarding the withdrawn dioceses. Many expect protracted, expensive, wide spread, and large scale litigation. However, as more parishes and dioceses withdraw, litigation may prove to be prohibitively expensive as with each withdrawn parish or diocese is withdrawn tithers to the National Church causing it to lose more revenue with each successive withdrawal. Although lawyers may be interested to see how courts may rule in a matter such as this, perhaps the best, and most Christian, way forward would be an amicable separation allowing each side to go its separate ways taking its property along with it.
This article was originally published in Upon Further Review on January 9, 2009 and can be found here or on my website here.