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National Church v. Regional Diocese: Property Ownership by a Religious Institution

James W. Cushing, Esq. on 01/09/2009

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One of the oldest religions in the United States is at the forefront of the development of property and First Amendment law.  In 1607, with the celebration of Holy Eucharist on a fallen log under a tent in Jamestown Virginia, the Episcopal Church found its beginning as the American branch of the worldwide Anglican Communion.  Today, under the leadership of Rt. Rev. Robert Duncan, the Bishop of Pittsburgh, the seeds of the demise of the Episcopal Church as we know it have been planted as the synods of the Dioceses of Pittsburgh, PA, San Joaquin, CA, Quincy, IL, and Fort Worth, TX, and potentially more to follow, have voted themselves out of the Episcopal Church.  The Episcopal Diocese of Pennsylvania (which consists of the Philadelphia five county area) is the fifth largest Diocese in the Episcopal Church.  If a critical mass of the faithful formed a sufficiently significant voting bloc, the Diocese of Pennsylvania could be another diocese that departs from the Episcopal Church in 2009.

            

Over the last forty years, there has been a slowly growing movement of liberal theology within the Episcopal Church causing many faithful Episcopalians to lose faith in the National Church to adequately preach, maintain, and defend the historic Christian faith.  As a result, Episcopalians have been leaving the Episcopal Church in greater numbers with each successive year, reaching a peak in 2008 with the departure of entire dioceses.  The departure of dioceses from the National Church has raised as yet unanswered questions about the nature of the property ownership by a religious institution.  Specifically, what entity owns church property, the National Church or the diocese?

              

Of course, property disputes among religious bodies and their members are hardly new.  Over the last century and a half, Courts from around the country have generally used two overarching guidelines when ruling on such cases: (1) avoid involvement into inter-church politics as much as possible and (2) church property in a hierarchical church is owned by the diocese (or presbytery, etc).  The distinctive issue that has arisen, in contrast to previous cases, is that now entire dioceses, as opposed to individual parishes/congregations, have attempted to leave the National Church.

              

Supporters of the National Church keeping the properties cite to the so-called Dennis Canon.  The Dennis Canon (Title I.7.4 of the Episcopal Church canons), allegedly passed by the 66th General Convention of the Episcopal Church in 1979 states that “[a]ll real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission, or Congregation is located.”   Therefore, under the Dennis Canon, those seceding from the National Church must abandon their property, as it remains the property of the National Church.  Supporters of the dioceses seceding from the National Church argue that the Dennis Canon was never actually passed by General Convention and none of the records surviving from the General Convention indicate that it ever passed.  Suffice it to say, the court is loath to inject itself into this sort of interchurch squabble.  Instead, when such issues are litigated in a civil court, the court will analyze the matter based upon property ownership and the corporate relationship between parish, diocese, and national church.

            

If the Diocese of Pennsylvania, at its next Diocesan Convention, votes to disassociate itself from the Episcopal Church, it would be very likely the National Church would bring an action against the Diocese for possession of diocesan property, including the real estate and all personal property owned by the diocese, such as the fixtures, prayer books, hymnals, and vestments, as well as the ejectment of parochial authorities, like rectors or perhaps even vestries.  Supporters of the National Church would assert that the National Church is the top of the hierarchy for which all dioceses hold their property in trust and such a view is consistent with the spirit and tenor of existing case law.  Those in favor of seceding from the National Church would assert that the National Church is an association that dioceses freely joined and from which can just as freely withdraw.  For example, dioceses in the American South withdrew from the National Church along with the states in which they are situated when they seceded from the United States before the Civil War.  These dioceses withdrew from the National Church without objection from the same, and were freely readmitted after the War.  Furthermore, it is worth noting that properties within dioceses are virtually always deeded to the diocese itself and not the National Church.

            

2008 saw the departure of four dioceses from the Episcopal Church and 2009 could see further departures.  A concerted movement among traditional Episcopalians in the Philadelphia area could lead to the introduction of legislation at the next Diocesan Convention to move the Dioceses out of the National Church.  If successful, significant civil litigation by the Episcopal Church against those seceding is likely. At present the Episcopal Church is weighing its options regarding the withdrawn dioceses.  Many expect protracted, expensive, wide spread, and large scale litigation.  However, as more parishes and dioceses withdraw, litigation may prove to be prohibitively expensive as with each withdrawn parish or diocese is withdrawn tithers to the National Church causing it to lose more revenue with each successive withdrawal.  Although lawyers may be interested to see how courts may rule in a matter such as this, perhaps the best, and most Christian, way forward would be an amicable separation allowing each side to go its separate ways taking its property along with it.

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  • 01/09/2009 by Sara

    Fascinating article, Jim. The only information I would have added is who is responsible when a diocese shuts down (due to declining membership or something like that)? I assume the National Church is still responsible for maintenance and upkeep….also, who holds the insurance on the buildings? Would the National Church have to contribute or do they contribute to insurance policies? So if the local church had a fire, would the national church contribute funds? Just curious but overall a very interesting article. Makes the case for nondenominational church so none of this has to get fought out in the big courts.

  • 01/10/2009 by Bob W

    A very well researched and written article. Even though this was written for a law review you have placed the issues facing the Episcopal Church and aired them in a manor that would make an educator proud.

    It is my understanding that to begin a church it takes an investment from the “mother church” to build and support the congregation. Then as the church grows it becomes self sufficient and finally moves on to giving support back to the “mother church.” If I am correct then what we have here is two sides in an argument who have both given to the other and now want to walk away from one another. I would imagine that everything from property, insurance, missions, annuities, etc. are far to complex to work out in total. It seems like a divorce to me. If it is a divorce (and the Episcopal Church knows about divorce) then as a good friend of mine who is a lawyer said to me “Just get out as quickly as you can, because nobody wins.”

  • 01/12/2009 by James W. Cushing

    Sara – the finer points of the relationship between an individual congregation, the diocese (or presbytery, etc), and the National Church varies between Christian denominations. Aside from the Episcopal Church, various Methodist, Presbyterian, Reformed, Lutheran, and other denominations have a hierarchical structure, each having its own distinctive flavor. For example, Roman Catholicism is extremely centralized and has its primary source of authority overseas as compared to, say the Southern Baptist convention which is a loose association between independent congregations. In addition, the precise relationship may differ by location. Using the Roman Church again as an example, canonically speaking there are no "parishes" in the United States as one would find in, say, Europe. American "parishes" are essentially missions with no actual parochial authority as compared to European parishes which actually do have some limited independence. So, to answer your question, I will do so with a very cliched lawyer response: "it depends" on the denomination. However, I can say two (2) things definitively: (1) hierarchical churches have always existed and, especially in the USA, experienced schism so the issues you present have been dealt with before more than once so there are solutions to your questions. (2) in my opinion, Nondenominationalism is, at best, Biblically, theologically, logistically, and practically questionable. However, if you want to discuss that point further, perhaps emailing me personally would be best. Thanks for the comment.

  • 01/13/2009 by Thomas R. Kellogg

    This article was of great interest to me. I am what they call a "birth Episcopalian" having been one since birth, and have attended a number of conventions of the Diocese of Pennsylvania as delegate or alternate delegate. The relationship between the dioceses and the National Church is ambiguous as far as I know. In other Anglican churches, the head of the church is frequently, if not always, an Archbishop. Note, e.g. the Archbishop of Canterbury (head of the Church of England) and the Archbishop of Armagh (head of the Church of Ireland not to be confused with the Roman Catholic primate in Ireland). However, the head of the Episcopal Church is not an Archbishop, but only a Presiding Bishop. Doesn’t this imply the position of first among equals as opposed to a CEO? Does the Presiding Bishop have the authority of an Archbishop of an Anglican church in another country? If the National Church is just an administrative convenience, there would be an argument that the various dioceses are the ultimate owners of the church property therein.

  • 01/13/2009 by James W. Cushing

    Hi Thomas: thanks for the comment; I am a cradle Episcopalian as well! You are correct to note that the American Anglican hierarchy differs from that of other most other provinces in the Anglican Communion inasmuch as there is no Archbishop here in the US. Each Anglican province has its own unique administrative preference: for example, all prelates are appointed by the Queen in the Church of England, there are multiple Archbishops in the Anglican Church of Canada, and the Church of Pakistan has a Moderator. As an aside, it should be noted that pursuant to the Chicago-Lambeth Quadrilateral of 1888 (passed by the Lambeth Conference of that same year) the required and necessary orders of Anglican clergy are deacons, priests and bishops. How each province wishes to massage those orders into something administratively more effective for it is its own prerogative. Previous to the American revolution, the Anglican Church in America essentially was an extra-provincial territory of the Church of England (not much different than the modern Church of Bermuda, for example) with no local American hierarchy or administration. When American Anglicans became independent from the Church of England around the time of the American Revolution, the bishops of the (then) nine existing dioceses came together in convention to form what is now the Episcopal Church of the USA. In the spirit of democracy, those bishops decentralized the power of the episcopacy and refused to have an Archbishop in favor of a Presiding Bishop who is primus inter pares and essentially a "speaker of the house" relative to his brother bishops. The Presiding Bishop is currently elected from amongst the American bishops but for many decades the Presiding Bishop was simply the most senior bishop. Now that he is elected, his term is a single 9 year term, after which he must step down to pursue some other ministry. So, it would seem that the formation of the Episcopal Church was more for local administrative ease than it was to create some sort of centralized provincial authority. Therefore, I agree with you that this mindset is consistent with diocesan control over church property.

  • 10/22/2009 by James W. Cushing, Esquire

    Kiil: The Presiding Bishop of the Episcopal Church is not an Archbishop and the office does not carry with it the authority that is found in an Archbishop. Indeed, until fairly recently (1925), the Presiding Bishop was simply the most senior diocesan ordinary. I think you are correct to say that the National Church’s status as a administrative convenience would support an argument that the diocese is the primary body in the Episcopal Church.

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  • 02/28/2011 by Anonymous

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