The Watcher Cat

The Watcher Cat

Wednesday, January 7, 2009

Litigation, Paradox and Charity

So the Supreme Court of California has ruled unequivocally in favor of TEC's claim to the church property the so-called realigning parishes endeavored to take with them.

The Supreme Court's ruling was consistent with the Supreme Court decision Wolf v. Jones (excerpted here; full text here), as well as the New York state caselaw discussed here:
But when called on to resolve church property disputes, secular courts must not entangle themselves in disputes over church doctrine or infringe on the right to free exercise of religion. In this regard, the United States Supreme Court has made two points clear: (1) how state courts resolve church property disputes is a matter of state law; but (2) the method a state chooses must not violate the First Amendment to the United States Constitution.


Defendants focus on the high court’s reference to what the “parties” can do, and argue that Canon I.7.4, to be effective, had to have been enacted by the parties — in other words, that some kind of agreement must have been reached between the general church and St. James Parish (and presumably every other parish in the country) ratifying Canon I.7.4. We do not so read the high court’s words. Use of the passive voice in describing the possible “alternative[]” of making the general church’s constitution recite the trust suggests the high court intended that this could be done by whatever method the church structure contemplated. Requiring a particular method to change a church’s constitution — such as requiring every parish in the country to ratify the change — would infringe on the free exercise rights of religious associations to govern themselves as they see fit. It would impose a major, not a “minimal,” burden on the church governance. (Jones v. Wolf, supra, 443 U.S. at p. 606.)
Thus, the high court’s discussion in Jones v. Wolf, supra, 443 U.S. at page 606, together with the Episcopal Church’s adoption of Canon I.7.4 in response, strongly supports the conclusion that, once defendants left the general church, the property reverted to the general church. Moreover, Canon I.7.4 is consistent with earlier-enacted canons that, although not using the word “trust,” impose substantial limitations on the local parish’s use of church property and give the higher church authorities substantial authority over that property. For example, permitting a disaffiliating local church to take the property with it when it reaffiliates with a different church is inconsistent with the prohibition of Canon II.6, section 2, against encumbering or alienating local property without the previous consent of higher church authorities. Defendants argue that such a reading of section 9142 “would unconstitutionally promote and establish denominational religion.” We need not, indeed, cannot consider all possible applications of section 9142, but as applied here, the section is fully consistent with Jones v. Wolf, supra, 443 U.S. at page 606, and promotes the free exercise rights of persons to form and join a religious association that is constructed and governed as they choose. Defendants also suggest that the Episcopal Church did not properly adopt Canon I.7.4 under its own rules. It is a bit late to argue that Canon I.7.4 was not effectively adopted, a quarter of a century later, and, in light of the consistent conclusions of the out-of-state cases that that canon is, indeed, part of the Episcopal Church’s governing documents, the argument seems dubious at best. But, in any event, this is one of those questions regarding “religious doctrine or polity” (or, as we phrased it in Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at page 541, “religious doctrine and internal church governance”) on which we must defer to the greater church’s resolution. (Jones v. Wolf, supra, 443 U.S. at p. 602.)
And that, of course, is exactly why the secessionists should lose: their arguments require the courts to scrutinize church hierarchy and organization, and strip away the flexibility mandated by Wolf. (The California Supreme Court's rationale regarding the Dennis Canon is essentially the view I've argued in opposition to the position of the Church of the Good Shepherd, linked above). It's why I also believe the Virginia lower court decision in favor of CANA cannot stand.

As I explained here:
The High Court has long recognized that church polity has theological underpinnings, and thus the Free Exercise Clause impacts the ability of the federal and of the state governments to interfere with it. The reason why pre-1920s state statutes often do not respect this line is that prior to Gitlow v. New York 1925), the Fourteenth Amendment had not been read to apply the First Amendment to the states, and thus states had plenary power over religious bodies within their borders. See Permoli v. First Mun., City of New Orleans (1845)("The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws. Nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.")
Such pre-1925 statutes are almost certainly unconstitutional, and decisions upholding them that do not address incorporation, are without precedential value.


So what can I, a "reappraiser" say about both sides, when their anger is at a pitch, and charity is scarce on the ground. How in particular to speak with those with whom I fervently disagree, and who are feeling loss today? Perhaps I may point to a paradox, and ask both sides to take some comfort from it. First, the paradox. Both sides are standing up for what they believe, sincerely, I am sure. TEC has risked (and continues to risk) expulsion from the global Anglican Communion. The secessionists (sorry; I'll take a better term if there is one) have risked, and are losing, more often than not, spiritual homes which they love.

Both, in short, whatever one may think of the results of their discernment--and I know which side I believe has it right--have avoided the trap pointed out a century ago by F.C. Burkett:
As long as we believe in our hearts that our property, our arts, our institutions, our buildings, our trust-deeds are the most permanent things in the world, so long we are not in sympathy with the gospel message.
"The Eschatological Idea in the Gospel," in Cambridge Biblical Essays (1909) at 211.

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