The Watcher Cat

The Watcher Cat

Sunday, April 21, 2013

They Can't Believe They're Losing to these Guys?

In my last two posts (here and here) I examined the decision of the Supreme Court of Virginia in Falls Church v. PECUSA. In so doing, I looked at some of the reaction to the opinion, and found among some of the "reasserters" a level of surprise and shock that frankly makes no sense to me.

(I should note, in view of the fact that I have directly engaged with A.S. Haley, the "Anglican Curmudgeon," that I am not referring here to his writings on the decision. While no one commenter prompted the reflection, an exchange with C.R. Seitz, of the Anglican Communion Institute crystallized my thoughts.)

I mean, I understand anger; the supporters of secession are acting based on deeply held views; though I believe them to be profoundly in error, they are paying a high price for acting on what what they believe to be right. But surprise?

Look, let's game it out:

1. The Supreme Court has long held that
"The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . no "arbitrariness" exception -- in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations -- is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.
2. More recently, the Court has acknowledged a limited role for civil courts in applying "neutral principles of law" to property disputes arising out of schism. In so doing, the Court provided that a hierarchical church could with "minimal" efforts, create an enforceable trust over parish property, and all that would be required would be for "the constitution of the general church [to] be made to recite an express trust in favor of the denominational church," to which "civil courts will be bound to give effect."

3. In the same year in which the Court stated this, the Episcopal Church adopted the Dennis Canon, expressly created such a reversionary trust in case of schism.

Now, right or wrong, love or hate it, on what view of these facts does this not make an effort on the part of a seceding parish or diocese to retain said property a mighty heavy lift? You can't question the procedural legitimacy of the Dennis Canon in civil court--see point 1. Even if you get a court to find it's not directly binding, it's weighty evidence of intent and course of dealing, and if the court goes the other way, it's essentially disregarding the Supreme Court's interpretation of the First Amendment, inviting overruling by any higher court, or by the Supreme Court itself. And it's a rule affecting property ownership, in which stability is especially important.

I'm not saying it can't be done, mind you--there has, in fact been some confusion in the application of neutral principles under Jones, and some tension between decisions in various states. (I think the linked author reads All Saints v. Campbell, a decision which explicitly turns on its highly unusual facts, too broadly, but I suspect we'll soon see if the South Carolina Supreme Court adopts that broader ruling.) I'm just saying it's like counting on drawing to an inside straight flush--counting on a perfect storm of luck, in effect. And, in fact, as A.S. Haley has recorded, that has in fact been the size of it.

I write this not--I promise!--sarcastically, or mockingly, but because the surprise I saw in the various reactions to the decision troubled me. I get taking a heavy risk because of a perceived moral imperative. What I don't see is the shock when the risk eventuates, and I guess I'm hoping that the principals, if not the commentariat, were properly advised of the risk's magnitude and likelihood.

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