A Brief Look at the Status of the Anglican Wars

I haven't been posting much about the property disputes and other internecine strife within the Anglican Communion, because (1) Not all that much has happened lately, though there has been much sound and fury, and (2) it's Lent, and riling myself up and my readers too is hardly a spiritual discipline.

But, two things crossed my transom of late, and they do seem worth of note.

The U.S. Supreme Court's denial of review in Falls Church v. Protestant Episcopal Church was not, in my opinion, particularly notable as the Virginia Supreme Court based its decision on an issue of state law. At the time the decision came out, I agreed with A.S. Haley "that, as this decision is limited to an interpretation of the Virginia law of trusts, it is not susceptible review by the U.S. Supreme Court, and will stand whether the reader finds the opinion,Haley's critique, or my limited defense persuasive." (I strongly disagreed with his analysis on the merits).

So I am rather surprised to read Haley's post on the denial of certiorari, describing the decision as a "heartbreaker":

This was potentially a huge decision for those suffering from years of the courts' misreading of Jones v. Wolf (1979), 443 U.S. 595, as detailed in numerous posts on this blog. The significance is that it would have been the first church property dispute which the Court has accepted for review since Jones -- some 35 years ago. While the decision below (from the Virginia Supreme Court) is not based on ECUSA's Dennis Canon, it nonetheless is grounded in a misreading of how a national Church can unilaterally establish a trust in its favor on all parish property without the parishes themselves declaring the trust in question. Similar bad readings of the dictum in Jones have come from the Supreme Courts of Connecticut, Georgia, New York and California.

I am genuinely surprised by this reaction, not because I don't understand his chagrin at his side's loss, but because he saw it coming, and, more to the point, this claim that state and lower courts are misreading Jones v. Wolf, 443 U.S. 595 (1979)--the decision that found that state courts could under the First Amendment, within certain limits, apply neutral principles of law rather than deference o a hierarchical church's highest decision making body--just does not make sense. In Jones, at p. 618, the United States Supreme Court emphasized the minimal burden on a church to establish a trust retaining property for a diocese or the denomination that he states would be bound to respect:

Under the neutral principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form

(My emphasis).

Now, whatever you think about the theological merits of the dispute at issue, I just do not see how one can seriously argue that (1) The passage of the the Dennis Canon, using this language and in response to the Court's opinion, is not in conformity with the opinion; and (2) how it is not, therefore, under the First Amendment, governing, absent a reversal or modification of Jones--which would unsettle decades of settled property law and expectations reasonably relied upon for 35 years.

Now, this unsettling might be needed if there were in fact a misreading of Jones, but Haley seems to view the case as a charter for state independently applying their own laws willy-nilly, but in fact the opinion suggests that the Free Exercise Clause sets limits, as delineated in the opinion, a conclusion eloquently set out and applied to the Virginia law at issue in Justice McClanahan's concurrence. In sum, I do not just disagree with Haley, here; I genuinely do not see what his argument is, other than that the Supreme Court did not mean what it said, which is always a tough argument to make.

Edited to Add: "Chagrin" may be the wrong word to use, as it could be takes to mean merely frustration, and thus not recognize the genuine pain this internecine quarrel causes whoever loses an individual encounter. That'a part of why I have often suggested what I call the Gamaliel Option--based on my belief that time will reveal the truth-- we could both be wrong in part and right in part--and whether we really have a future apart or together. It could also take some of the heat out of the situation, as the parties deal with each other in the interim knowing no further damages can rack up. Both sides would have to sign a cease-fire agreement in which they agreed to do nothing for a period of years (say 10 to start), and to waive any statute of limitations or laches defenses against the other during that time period, as well as damages being frozen for the time period. Negotiate to see that the breakaway congregation make provision for the TEC adherents (or vice versa where applicable), so that too could be worked out.

Each side loses nothing other than the vindication of secular law. The breakaway parish/diocese would have functional independence, TEC would not have to worry about losing its legal claims by not moving aggressively. At the end of the 10 years, the parties could negotiate, renew, or file their legal actions again. It's not standard corporate law, but then, this shouldn't be. We could get on with mission and, even if we end up separating, do so with less animus, maybe even learning to work together in places. Anyway, one lawyer's mediation dream.

The other issue? The previously eirenic Peter Ould, in disagreeing with an article quoting Bishop Alan Wilson on whether clergy can be charged under the Clergy Discipline Measure for entering a same-sex marriage refers to it as being published in "the Guardian Komment Macht Frei" ("Comment is Free" is what the Guardian calls its opinion blogs and section). Seriously? That's offensive and, dare I say it, unchristian. It actually makes me re-think my prior references to Ould as a Christian conservative with one whom can productively engage. The Guardian may have its flaws, but I'm pretty sure it's not Auschwitz.