The Watcher Cat

The Watcher Cat

Friday, March 28, 2008

St. James, Elmhurst: Decision For the Diocese

(Edited and Updated)

The decision of the Supreme Court, Queens County in St. James Church, Elmhurst v. Episcopal Diocese of Long Island, Index No. 22564/05, was rendered on March 12. Over at SF, a scathing critique of the decision’s result does not engage the court’s reasoning. For the decision’s critics, the fact that the court found that a parish does not have a right to secede from the Episcopal Church is enough to (forgive the pun!) damn it. No analysis of the applicable state law is necessary.

This attitude is one that is, frankly, all too prevalent–and not just confined to one “side” of the dispute. Despite the fact that I’m a lawyer, I’ve tread warily with respect to these state law issues outside of my home state of New York, and likewise with respect to questions swirling around the canonicity of deposing Bishops Schofield and Cox. That is because canon law is complex, requiring review of caselaw, statutory language, and what we in the law biz call legislative history. Without access to a library containing such things, and a fair amount of time to review them, the better course is to remember Wittgenstein: “Whereof one cannot speak, thereof one must be silent.”

But, finally, the St. James decision is one where I feel I can offer an opinion. It’s in my state, I’m admitted to the bar, and I’ve had a chance to read the decision’s reasoning, and not just a partisan reaction to the holding. So let’s begin:

1. The Procedural Posture

Both sides moved for summary judgment–that is, a decision based on a finding that no material issue of fact is disputed, and therefore a trial is not necessary. Both sides had moved for summary judgment, and so that determination seems unlikely to be overturned on appeal.

2. The Facts Underlaying the Court’s Decision

St. James was established in 1704, but received a corporate charter in 1761. (Decision at 4). After the Revolution, St. James (as well as two other churches) petitioned the New York State Legislature “to permit these churches to exist in corporate form ‘in communion of the Protestant Episcopal Church in New York.’” (Decision at 5). In 1793, the Legislature passed a statute providing that “the said corporation of St. James church ... shall and may...take and use the name of, The Rector and Inhabitants of the town of Newtown, in Queens County, in communion of the Protestant Episcopal church, in the State of New-York; and ... be capable” of transacting business “in as full and ample manner” as before. (Decision at 5-6).

In 1951, St. James successfully petitioned for an order under the State Religious Corporations Law, approving the sale of certain real property, reciting, that “the sale had been consented to by the Bishop of Long Island” and other diocesan authority. (Decision at 6). The deeds referred to in the petition were produced to the court in this case, and (when entered into after the Revolution) described the Church as “in communion with the Protestant Episcopal Church of the State of New York” or to the corporate name as enacted by the Legislature. (Decision at 7).

When in 1849 St. James built its second church building, the corporation signed an “Instrument of Donation” stating that “the building would be used solely for the purposes of conducting religious services ‘according to the provisions of the Protestant Episcopal Church in the United States of America.’” (Decision at 8). The Instrument further stated that the “property would not be put to any use inconsistent with the Instrument of Donantion.” (Id.).

St. James owned property in Lower Manhattan that Trinity Church, Wall Street had an interest in as well, and sought in 1964 to sell it. St. James filed a petition seeking judicial approval of the sale, noting that Trinity agreed to waive its interest in the property as long as the proceeds be held in trust, and that the principal “‘shall revert to Trinity Church in the event that said St. James Parish shall cease to be an Episcopal Church.’” (Decision at 8-9). St. James sought the court’s approval of the sale under Religious Corporations Law § 12, as it had previously done in 1951, and noted that the Bishop of Long Island had, as before, given consent to the sale. Decision at 9).

I’ll spare you the details of the schism–it’s the usual: doctrinal differences, especially over homosexuality, with the parish withholding some assessments–but not all–and continuing to contribute to the pension funds of the clergy. Let’s move on to the analysis.

3. The Court’s Analysis

New York applies the “neutral principles of law” analysis, under which the language of property deeds, the terms of the church charter, and the provisions of the general church concerning the ownership and control of church property are employed. (Decision at 22). The court reviews these documents to determine whether there is any basis for finding a “trust or similar restriction in favor of the general church, taking care to scrutinize the documents in purely secular terms.” (Decision at 22). The court must take special care not to become involved "in internal religious disputes” or become engaged in "purely ecclesiastical concerns “such as church governance or polity.” Decision at 22-23).

Under New York law, a church may be either “hierarchical” (centrally organized as a single body) or “congregational”–a confederation of local churches, which remain independent at bottom). The Episcopal Church has been routinely deemed hierarchical. (Decision at 23-24). This conclusion conforms to cases decided by the U.S. Supreme Court, the New York intermediate appellate courts, and other trial level courts in the State. (Decision at 23-24). However, even where a church is hierarchical in nature, local members can claim property “provided that they have not previously ceded the property to the denominational church.” Decision at 24, quoting First Presbyt. Church v. United Presbyt. Church, 62 N.Y.2d 110, 120 (1984). In this case, the court found, the local church had clearly ceded the property. The court based this conclusion on several factors:

i. The Instrument of Donation in 1849, because the present use by a non-TEC Church is inconsistent with the Instrument;

ii. The 1964 proceeding made clear that the funds in trust would revert to Trinity Wall Street should St. James “cease to be an Episcopal Church.” (At this point, the court determines St. James’s incumbents have no claim on these funds; they appear to have lost credibility with the Court by maintaining these funds in an escrow account, rather than surrendering them);

iii. The reincorporation by the New York State Legislature, referencing “communion with” TEC. The court explicitly found that this provision stripped the vestry of authority when they disaffiliated with TEC.

iv. The relationship with the Diocese was not, as the incumbents claimed, severed prior to 2005; one of the incumbents admitted as much, and the correspondence established it as well;

v. The history of obtaining the Diocese’s consent before selling property, in 1951 and 1964.

vi New York State’s statutory acknowledgment of a “trust” relationship between parishes and TEC in Rel. Corp. Law § 42-a, enacted in 1991.

vii The Dennis Canons, amended in 1979. Both the Diocese and the incumbents produced expert witnesses regarding whether the amendments “affirmed and ma[d]e clear existing canonical church law” or acted to “effect a change in said law.” (Decision at 32). Based on Canon II.6, extending as far back as 1871, and Canon I.7 (1941), the Diocese’s expert was credited. (Decision at 33). Canon II.6, in particular, states that consecrated property “must be ‘secured for ownership and use’ by a parish or congregation ‘affiliated with [TEC] and subject to its Constitutions and Canons.’” (Decision at 33).

One reason for the court’s rejection of the incumbents’ challenge to the Dennis Canons was that “in the 26 years following the adoption of the Dennis Canons... St. James raised no objections to these Canons, until after the March 30, 2005 schism.” (Decision at 34).

As has been common in these cases, the court did not find for the Diocese on claims for damages–no doubt the sincerity with which the religious controversy is being waged on both sides led the court to want to avoid a punitive ruling. (Even though a strict reading of the law might not have been observed by that part of the ruling, as the implication of the ruling is that the former vestry is guilty of conversion, I think the court was probably right).

[Update: 3/29/08 On further reflection, I think the incumbents made three litigational errors that significantly undermined their cause: The first, referred to above, is that they continued to claim the trust funds, even though leaving TEC clearly abrogated the explicit terms of the trust. To be intellectually consistent, they should have argued that the funds belonged not to St James Parish-Anglican, but to Trinity Wall Street. Second, By arguing that the Religious Corporations Law did not govern St. James, they elided the fact that St. James had twice filed petitions under that statute, and had prevailed. A party who seeks relief under a legal theory and wins is prohibited by what is called "judicial estoppel" from denying that theory in subsequnt proceedings. Finally, the claim of a complete severance in relationship prior to 2005 was both untenable and unnecessary. By making a claim that correspondence, flow of funds and the incumbents' own witnesses undermined, precious credibility was lost.]

4. Prospects for Appeal

Finally, the fact that the Court of Appeals–New York’s highest court–is reviewing Episcopal Diocese of Rochester v. Harnish, 17 Misc.3d 1105A, 851 N.Y.S.2d 57 (Sup. Ct. Monroe Co. 2006), aff’d 43 A.D.3d 1406 (4th Dept. 2007), may offer some hope to the dissidents here. If the Court of Appeals overrules First Presbyterian, and rejects “neutral principles,” that may indeed be the case. I suspect, though, from reading the opinion in Harnish, that what attracted the Court of Appeal’s interest was that the court below granted summary judgment almost exclusively on the statutory argument, and on the assumption that the hierarchical nature of TEC was near-dispositive of the property question; after losing on summary judgment, the dissidents sought to bring in evidence that they had not ceded the property, but the lower court ruled that they had lost their opportunity to do so. The Court of Appeals may be uncomfortable with ruling on so sensitive a subject based on, in essence, a procedural default. The upshot of all of this is that, unlike the court in Harnish, the court in St. James made a very factually-specific, nuanced ruling. I not only think it will stand up on review if appealed, I think that it’s correct under the law, and under the facts.

Friday, March 21, 2008

Good Friday and the Atonement

Back in December, I explained my reasons for rejecting the theory of penal substitutionary atonement, and said that I would propose a Lux Mundi-influenced theory of the Atonement.

And then I didn't. Largely because the thought that I could try to encapsulate so much in a blog post was more than slightly daunting. But at today's Three Hours Meditations on the Seven Words, I had a thought regarding the Atonement:

My principal difficulty with PSA has always been its image of God; what kind of God would only spare humanity by sacrificing His Son to the hideous death of the Cross? In "The Atonement" in Lux Mundi, Arthur Lyttleton rejects a savage God propitiated with innocent blood; he stresses, instead, that the Atonement changes the suffering that follows sin from meaningless to transformative:
"Even we," says St. Paul, "which have the first fruits of the Spirit", even we are waiting for the further process, for "the adoption, to wit, the redemption of our body." And the process consists in so following "the Captain of our salvation" that, like Him, we accept every one of those sufferings which are the consequences of sin, but accept them not as punishment imposed from without upon unwilling offenders, but as the material of our freewill sacrifice. From no one pang or trial of our nature has He delivered us, indeed, He has rather laid them upon us more unsparingly, more inevitably. But the sufferings from which He would not deliver us He has transformed for us. They are no longer penal, but remedial and penitcntial. Pain has become the chastisement of a Father who loves us, and death the passage into His very presence.
"The Atonement," Lux Mundi at 254-25.

Embedded in Lyttleton's argument is the need for punishment to serve the justice of God. But, perhaps, the Atonement is not for what Jean Anouilh called "the Honor of God." Perhaps, instead, is for our benefit--that is, we need to be made aware of the profound love God bears us, how much He yearns to be reconciled with us--so much so, that, in fact, He will Himself show us how to live--to take up our cross and follow Him, or, put in more mundane terms, to live lives reponding to the magnitude of the gift of forgiveness we have been given, and in relationship as reconciled children of God. Perhaps it is we who cannot accept forgiveness without cost, or understand love without limit, until it is shown to us--until we can probe our Lord's wounds ourselves, and marvel.

Lyttleton puts forward a vision of the Atonement that is grounded not just in His death, but in Christ's whole life; a vision of a human being who is so steeped in God and so responsive to God, that He is able to give all to God, even to the point of death--even when God's absence is felt by Jesus in the moment of death--an absence,Lytleton suggests, that Jesus had never known before. In so living, and so dying, Jesus models for us our optimum response to God.

We can't do that, of course. The fallibility of the apostles must cheer us, to some extent. But, perhaps, we can like them strive to live in harmony, in relationship, with God, with Jesus's example, such that we can surprise ourselves. Paul, the legalist, becomes the advocate of inclusion beyond the Law; Peter, who denied Christ and fled, becomes the model of bravery. Thomas, who doubted, is made steadfast. As Lyttleton writes, "we are justified because we believe in God, but also because God believes in us." (Id. at 254).

Now, Lyttleton does not wholly reject PSA--he suggests that God's justice cannot spare us eternal death without some sacrifice, made by Jesus, who is representative of us (and mystically one with us)--but can initiate reconciliation by being without sin. But he also makes the point, related here, that Jesus's death on our behalf calls for a response from us--that he is teaching us what it means to be forgiven, and to live as a child of God: not in self-aggrandizement or in smug satisfaction like Spintho in Androcles and the Lion, but in awareness that ourselves forgiving and responding to forgiveness, are the essence of atonement. Lyttleton sees Jesus's life as reuniting us with God, that culminates not just in the Cross, but in the New Life that follows it.

Sunday, March 16, 2008

Perspective on Palm Sunday

After a crowded and stress-filled week at work (I'll spare you), I was looking forward to LEM-ing in the 11:00 Palm Sunday Mass as a chance to recharge my batteries. Instead, I was late due to the re-routing of traffic resulting from yesterday's crane collapse. I missed the procession, and took a seat among the congregation. Quite frankly, I was livid with myself--I'd never been late to assist in any capcity in church services, and was blaming myself for letting down the Verger, the clergy and my fellow LEMs. After a few minutes of this, I spied the Verger in a cloister. I delicately stalked round the Church to avoid distracting from the service, and told him I was sorry to be late--and then asked if I should vest, or just sit this one out. He calmly said "vest."

As I was tying the cincture, my friend the Deacon came into the vesting room, and said hello. I muttered "Late. Crane collapse." He picked up the last part, and empathetically murmured, "Terrible thing. All those people hurt--and the ones who lost their homes." And then whisked away. (How like the Deacon to focus on the relevant issue--those hurt and suffering in the world.)

On my way back to join the LEMs, the Rector and I met, heading in different directions in a passage too narrow for both of us to pass at onece. I motioned him through, and he gave me a pleasant smile, and said simply, "Thanks, John."

I rejoined the others, and served. When I saw the Verger later, he cheerfully waved away my apology, saying "Happens to us all. Don't worry."

The only one angry at me had been me.


Silly story, isn't it? How easily we all can beat up ourselves for not meeting our own expectations of acceptable performance. Yet--a couple of years ago, I'd have let this ruin the service for me. I wouldn't have sought out the Verger, and asked if I could still be of use. I'd have seethed at my own mistake, possibly all day. I'm struck by how we disproportionately view our flaws and mistakes, showing ourselves no mercy, or sometimes blind to our own errors.

I think this is one reason Jesus tells us to "Judge not, that ye be not judged." Because, quite frankly, we lack the perspective, and the loving-kindness to do it well. All too often, and the last few weeks in the Anglican blogosphere have been a great example of this, we have seen anger drown out charity, compassion evicted by "righteous indignation." I have been guilty of this myself. Time for a change.

I'm going to try to raise my game a bit here. Like
Father Jones, I'm going to try to focus on some spiritual study points, exploring the classics that have drawn me in, and also thinking out loud about some issues that are forming me on my own journey. I hope to, when I do venture into the Great Unpleasantness of the Anglican mess, remember the need to show real charity--by engaging with understanding views that differ from my own, and not just thundering out my own opinions.

A blessed Holy Week to all.

Saturday, March 8, 2008

Across the Gulf

Just a short post to commend a discussion on Stand Firm in which a (mostly) civil, erudite series of exchanges take place on the same subject covered by this post.

It's a pity we can't do this more across the gulf of the current disputes. Still, this kind of discussion could be a start to moving away from a "total war" mentality to one of reasoned debate. Or not; at any rate it's a good thing to see.