Friday, April 11, 2008

Bringing Victory Out of Defeat

Some years ago, when I was a priest in the Diocese of Michigan, Old Mariners Church decided to leave the Diocese.

I write that as if the events related to that were simple. In fact they weren’t. The Diocese sued for control of the property, and lost. The Diocese appealed, and lost. As I recall, it cost the Diocese something on the order of $75,000, and there was certainly disappointment within the Diocese, both at the losses and at the expenditure.

The Diocese lost because the founding of Mariners Church was unique. It was founded with funds donated by two sisters as an independent congregation. It later requested to join the Diocese, apparently in keeping with the wishes of the sisters; but it had retained in its corporate bylaws some unique characteristics that were meaningful in Michigan property laws. The congregation won because of certain unique and very specific characteristics.

Which ultimately served the Diocese. I have long felt that the Diocese lost the battle and won the war. You see, there were a number of other congregations in the Diocese watching all this closely. They largely agreed with the folks at Mariners Church (in this case, about continued use of the 1928 Book of Common Prayer, and about the social agenda of the Episcopal Church), and they were considering themselves leaving the Diocese.

What they discovered was that they couldn’t. They didn’t have the specific and unique characteristics of their foundation that Mariners Church had. As was made clear by the court decisions, without those characteristics there was no question that the Constitution and Canons of the Episcopal Church applied, and that in any legal dispute the Diocese would win. So, the Diocese lost one case, and so was spared another five or six. What seemed money lost was actually well invested.

I find myself thinking about this as I look at the initial court decision regarding the congregations in Virginia that have left that diocese to join the Anglican District of Virginia and the Convocation of Anglicans in North America (CANA), a ministry of (or a boundary violation by, depending on perspective) the Church of Nigeria – Anglican. That case also has aspects of uniqueness. First, there is the assertion by some of those congregations that their histories predate the founding of the Diocese of Virginia – a characteristic that must certainly apply in limited cases (if perhaps not as limited in Virginia as in other states). Second, there is the uniqueness of the Virginia law on divisions within congregations, a law not shared by any other of the United States.

I’m not an attorney, much less a Virginia attorney. On the other hand, I did read the appellate opinion in California which included that court’s detailed review of relevant cases in the federal courts. I personally don’t think it likely the Virginia congregations will win in the end, although I do expect it to take a while, including some time in the federal courts.

But, suppose they do? If they win based on those unique characteristics, they will also demonstrate how few other congregations can follow their lead. The state judge in Virginia has indeed decided that this specific law does apply; but there is no such law anywhere else. Nor do I think it likely that any other state could get such a law through legislatures these days. In no other state could congregations make such an assertion.

And, if they win based on assertion of historical precedence, that the congregations predate formation of the diocese: that, too, will offer little comfort outside their own region. There are certainly more such congregations along the Atlantic coast, and some may also think about departure. But, that won’t apply to most along the East Coast, and there will be none west of the Alleghenies. Even if some were founded before a diocesan structure existed, they were founded under the jurisdiction of missionary bishops elected by and serving under the General Convention of the Episcopal Church. It would be hard to argue that the Constitution and Canons don’t apply.

So, it seems to me quite possible that a victory for the Anglican District of Virginia and CANA would be Pyrrhic: in defining why they might leave, they would define clearly why the vast majority of congregations couldn’t. It’s certainly too soon to tell, and the legal process in California is also going to be interesting. But it seems to me that in pressing on the Diocese of Virginia and the Episcopal Church can win the war, even if they lose this battle.


Anonymous said...

You wrote that you did read the appellate opinion in California which included that court’s detailed review of relevant cases in the federal courts. Do understand that two years previously the CA Supreme Court, by declining to hear a Methodist Conference appeal request, let stand a bold statement for the individual church. With the recent CA Appeals Court 88 page decision overturning all recent church property ruling, the CA Supreme Court within ten days of being requested, agreed to hear an appeal of the individual churches against the 88 page ruling. One might think they were ready to reverse the Appeals Court's audacity, which in effect had tried to overrule them.

Marshall Scott said...

Well, anonymous, I had not read the earlier California court ruling, although I had heard some reference to it, including a reference in the more recent decision. I'm not surprised, just on procedural grounds, that the California Supreme Court would want these on the docket. After all, they involve more than one county and probably more than one circuit within the state court system, and that's just the kind of thing that supreme courts are for: to ajudicate differences within the same constitutional jurisdiction.

That's also why I think the current cases will end up in the Supreme Court of the United States: the same issues have been addressed one way in the most recent court decisions in California and New York, and may be addressed differently in Virginia (and I say "may be" because the judge in Virginia has not responded to the constitutional question). Again, issues with constitutional dynamics being decided differently in different states are the raison d'etre of the Supreme Court; and certainly parties on both sides have the financial resources to take it to that level.

So, how would this Court decided this issue? We don't know for certain. However, I think the California appellate court decision did lay out the precedents clearly. Could they be overturned? I don't expect it. I could certainly be wrong; but I don't expect it.