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Litigation Involving Disaffiliating Parishes and Dioceses:

A View from 30,000 feet with Some Commentary on the Landscape

Although the subject isnt the most edifying one to contemplate, litigation

involving disaffiliating dioceses and parishes is with us and the frequency of news

developments on the subject seems to be increasing. It is hard to keep track of, not tomention account for in a coherent way, these developments. Nonetheless, we are goingto attempt here to make some connections and draw some distinctions about what is

going on in some of the different cases, and offer some observations along the way.

Overview of some recent parish cases. In the South Carolina case,AllSaints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South

Carolina, the South Carolina Supreme Courts September 2009 ruling was in favor of thedisaffiliated parish on three important issues common to cases involving Episcopal

Church parishes. First, it endorsed neutral principles of law as the method of resolvingchurch property disputes, instead of the deference approach applied in some

jurisdictions. Second, it held that the 1979 Dennis canon, which purports to create a trustinterest in all parish property in favor of TEC and the applicable diocese, did not affect

the parishs title because only the owner of the property can create a trust. And finally, itfound that the parish could, and did, validly adopt amendments to its incorporation

documents that had the effect of disaffiliating the parish from TEC and the diocese.

It has been suggested that the South Carolina case has limited applicabilitybecause the property had been acquired in colonial times before TEC was organized.

While it is true that the courts opinion analyzed the evolution of title to the parishproperty from the colonial period forward and reached the conclusion that title was now

held by the congregations corporate entity, the three important conclusions referred to inthe preceding paragraph are not dependent on the colonial history.

A case in which historical factors are perhaps more significant isIn re

Multi-Circuit Episcopal Church Property Litigation, the Virginia case in which TruroChurch, The Falls Church and other parishes were successful at the trial court level. (The

case has been accepted for review by the Virginia Supreme Court.) In order todisaffiliate, the parishes availed themselves of an 1867 state division statute. This

statute provides that if there is a division in a church in which congregational property isheld by trustees, the congregation may by majority vote determine to which branch

resulting from the division it will belong, and that property ownership will follow thatdetermination.

Although the Virginia division statute is itself unique, the Virginia case

has more factors in common with other cases than might appear. In the Virginialitigation, the efficacy of the Dennis canon and whether parish entities are allowed to

disaffiliate were at issue just as they were in South Carolina and other cases. Thedifference in the Virginia case was that the parishes were arguing for their right to

disaffiliate under a specific state statute applicable to divisions within churches ratherthan on the normal state law rules relating to property, trusts and legal entities. It seems


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Communion Institute has published papers on this subject.2

Non-legal academiccommentary also illustrates the exaggeration in TECs hierarchical claims.

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Many make the argument that accession clauses in diocesan constitutions

or canons result in subordination of the diocese to the national organization. Mark

McCall deals with this idea (Is the Episcopal Church Hierarchical?) and hedemonstrates that there is no support for the idea that the presence of an accession clauseimplies a prohibition on withdrawal.

4Arguing that accession to the associations rules

implies irrevocable subordination doesnt succeed, because the very existence of theassociation is premised on agreement to be bound by its rules. The very same

unincorporated nonprofit associations, the members of which must be allowed towithdraw on constitutional and public policy grounds, typically have governing

documents containing an agreement to be bound.

The litigation concerning the ability of a diocese to withdraw shouldinvolve less variation in the relevant facts from case to case, because there is only one

organization being withdrawn from, rather than one organization out of a universe of 111.The Pittsburgh case, Calvary Episcopal Church v. Rt. Rev. Robert W. Duncan, is unique

in that so far the dominant issues in play have been connected with the terms of an earlierstipulation (a form of settlement document) about ownership of diocesan property, rather

than the legal ability of the diocese to withdraw. In the Fort Worth case, The EpiscopalDiocese of Fort Worth v. Salazar, the judge has expressed skepticism from the bench

about claims that the Fort Worth diocese is prohibited from withdrawing, but at this earlystage of the proceedings involving preliminary motions he has been reluctant to follow

the logic of his observations to their natural conclusions. In the San Joaquin case,Diocese of San Joaquin v. David Mercer Schofield, the trial judge has been much more

receptive to TECs arguments, a factor, perhaps, in the somewhat unusual decision of an

2 See Mark McCall, Esq.,Is the Episcopal Church Hierarchical(Anglican Communion

Institute Sept. 2008),http://anglicancommunioninstitute.com/wpcontent/uploads/2008/09/is_the_episcopal_ch

urch_hierdoc.pdf;Bishops Statement on the Polity of the Episcopal Church (AnglicanCommunion Institute April 2009),

http://www.anglicancommunioninstitute.com/2009/04/bishops-statement-on-the-polity-of-the-episcopal-church/.3

For example: The denominations usually considered to have the most highlycentralized religious authority (i.e., denominations with Episcopal structures), actually

have religious authority that is only highly centralized at the regional level. Even in theEpiscopal Church or in the United Methodist Church, for example, religious authority is

highly decentralized from the national perspective. To say this another way, episcopaldenominations are like sets of relatively autonomous fiefdoms while the more unitary

denominations are like nascent nation-states in which a single king has establishedauthority over subordinate feudal lords. Mark Chaves,Denominations as Dual

Structures: An Organizational Analysis, Sociology of Religion, vol. 54, no. 2, Theory andHistory in the Study of Religion (Summer 1993), 147, 166.4 Mark McCall,supra note 2, at 20-22.


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appellate court to entertain a request for review of a ruling while the case is still beforethe trial court.

Common thread: The issue of special treatment. Stepping back from some

of the significant factual and legal variations in the parish cases and the less varied

profiles of the diocesan withdrawal cases, there seems to be at least one common threadthat emerges. It is the degree to and frequency with which TEC argues (although itsometimes denies that it is doing so) for special treatment for itself and other more clearly

hierarchical religious denominations not accorded to secular organizations. This can beseen, for example, in the insistence that General Convention can impose a trust on parish

property by passing a canon, in the three-tier hierarchical language found in the legalpleadings but not in TECs constitution, and in the insistence that dioceses cannot

withdraw, without pointing to language that prohibits withdrawal. The assumption ofentitlement extends in favor not just of an abstract TEC but to the people who are

presumed to be able to speak for it, as evidenced by various actions taken on TECsbehalf by the Presiding Bishop without constitutional or canonical warrant.

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TEC (and dioceses), moreover, have not been without success in taking

this stance. Many are familiar with the concepts of hierarchical deference and neutralprinciples as they apply to methods of resolving church property disputes. It seems

clear that use of overt hierarchical deference is in decline. As observed by a prominentacademic commentator, hierarchical deference contains an anomaly that is so evidently

impossible to justify, it will almost certainly not survive.6

Notwithstanding that, TECsdegree of success has been helped by instances in which courts purport to apply neutral

principles, but wind up creating, in practical effect, special exceptions for hierarchicalreligious denominations. This phenomenon has been observed in the literature for some

time, one example being a 1990 article in the American University Law Review byProfessor Patty Gerstenblith which contains this summary:

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These courts, while employing the language of neutral principles . . . are

nonetheless applying a concept that is entirely unique to church-related cases.This usage does not accord with legal principles from any other recognized

branch of the law. Instead, the courts base their opinions on presumptions of

5 See, e.g., Mike Watson,Litigation against Disaffiliating Dioceses: Is it Authorized andWhat does Fiduciary Duty Require?, 3-15 (Anglican Communion Institute Sept. 2009)

http://www.anglicancommunioninstitute.com/2009/09/litigation-against-disaffiliating-dioceses-is-it-authorized-and-what-does-fiduciary-duty-require/.6 Kent Greenawalt,Hands Off! Civil Court Involvement in Conflicts over ReligiousProperty, 98 Colum. L. Rev. 1843, 1866 (1998).7 Patty Gerstenblith, Civil Court Resolution of Property Disputes among ReligiousOrganizations, 39 Am .U. L. Rev 513, 558 (1990). See also the survey and analysis in

Jeffrey B. Hassler, A Multitude of Sins? Constitutional Standards for Legal Resolution ofChurch Property Disputes in a Time of Escalating Intradenominational Strife, 35

Pepperdine L. Rev. 399 (Jan. 2008).


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implied intent and implied consent without any inquiry into the actual intent ofthe presumed settlor.

Although it is possible there could exist arrangements within a diocese that would, under

a neutral principles analysis, prevent a parish from disaffiliating, TECs arguments go

further, and most of the courts finding an inability to disaffiliate with property intact havefound it necessary to reach beyond neutral principles.

A moral argument? Professor Gerstenbliths reference to legalconclusions being improperly based on presumptions about intent brings to mind other

uses of presumed intent, namely to frame a moral argument. Representatives of TECofficialdom have argued or implied that they have a moral duty to see that the intent of

prior donors is fulfilled. For example, Bishop Gulick is quoted as saying recently, "TheEpiscopal Diocese of Fort Worth, heir and steward of the legacy of generations of faithful

Episcopalians, has this day brought suit to recover that legacy. 8 Presiding BishopJefferts Schori said in July 2008, We really dont have the authority or the moral right to

give away those gifts that have been given by generations past and for the benefit ofgenerations now and the benefit of generations to come.9

If these are meant to be moral

argumentsand Bishop Jefferts Schori uses the word moralthey are moral argumentsfounded on an empirical premise. (Bishop Schori also demonstrates a certain sleight-of-

hand in framing the issue as whether TEC should give away assets that are held andwere paid for by others.)

But how would one go about determining donor intent, and are Bishops

Schori and Gulick in a better position to determine it than, for example, Bishop Iker andthe majority of the Fort Worth diocese that voted to leave? A legal commentator has

stated the obvious:10

. . . [T]he idea that members give implied consent to whatever the hierarchy doesis not tenable for many members of many churches. . . . Do local church members

mean to adhere to hierarchical decisions in . . . altered conditions, rather than tothe principles prevailing when they decided to join, or to local officials who

refuse to follow the hierarchy? No confident generalization can capture whathighly diverse local members have in mind. . . .

. . . Perhaps donors of property or large sums of money have more attachment to a

central denomination that the average parishioner, but one can hardly assume thatloyalty is to the general denomination, regardless of how doctrines shift,

procedures are observed, or foreign political influences are brought to bear. And,

8 http://episcopaldiocesefortworth.org/holystewardshipfiles/release%2008.28.09.htm.

9 The Defender: U.S. Episcopal leader to talk with Anglicans, Associated Press (July 12,2008)

http://www2.newsadvance.com/lna/lifestyles/faith_values/article/the_defender_us_episcopal_leader_to_talk_with_anglicans/6541/.10 Kent Greenawalt,supra note 6, at 1874-75 (footnote references omitted).


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as Michael Galligan has urged, [s]ome churches resemble a federation ofautonomous groups rather than a totally integrated entity. Even when a church is

essentially hierarchical, agreements of union between specific church and thecentral body may modify the amount of power granted church authorities. Any

notion that loyalty would be to the general church in all circumstances is a fiction

about the wishes of donors and contributors grounded upon the division of allchurch government into two rigid boxes.

Statements such as those made by Bishops Schori and Gulick are indeed based on afiction about the wishes of donors. In most cases we dont know specifics about donor

intent such as would lead to the inferences drawn by these bishops. That in itself is areason that a neutral principles approach properly carried out doesnt make assumptions

about donor intent that arent reflected in relevant documents in a legally effective way.

Given the usual silence as to any intent of the donor that gifts made locallyare to be subject to restrictions favoring the national denominational organization,

arguments that such restrictions nonetheless exist also raise a question of disclosure:Why werent we told that when we made the contributions?

Ecclesiological and First Amendment Arguments. One answer to the

question just asked might be, Why of course everyone knows this is a hierarchicaldenomination. But to say there is a hierarchy does not describe its structure and to what

substantive areas its authority extends. The case that sweeping assertions regarding athree-tiered hierarchy misdescribe historical fact and are inconsistent with constitution

and canons has been laid out at length.11

Related to the substantive assertion about hierarchy is an assertion aboutwho gets to decide. Passages from a few court decisions describing TEC as hierarchical

are used a base from which to argue that it is not up to courts to assess the validity ofmany of the arguments advanced, and that deference must instead be given, under the

First Amendment, to TECs own determinations about its polity. This approach isproblematic at two levels. First, there is the issue of whether it is correct that the First

Amendment requires deference where the issues dont involve religious doctrine orecclesiastical polity but property ownership and organizational issues that can be

analyzed using neutral principles of law. Second, even if it were conceded that deferencecould be due to a hierarchical body, how would that body and who speaks for it be

identified? In the present controversy, where is the body at the top of the hierarchy thathas determined that only people can leave and where is the record of that

determination? The answer cannot be that deference must be accorded to whoevercontrols the accounts used to pay the lawyers who come into court and make the

arguments. As the late Chief Justice Rehnquist said, If the civil courts are to be boundby any sheet of parchment bearing the ecclesiastical seal and purporting to be a decrees

of a church court, they can easily be converted into handmaidens of arbitrary

11 See footnote 2 above.


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