While it is true that the court's opinion analyzed the evolution of title to the parish property from the Colonial period forward and reached the conclusion that title was now held by the congregation's corporate entity, these three legal issues do not depend on the Colonial history.

A case in which historical factors are perhaps more significant is In re Multi-Circuit Episcopal Church Property Litigation, the Virginia case in which Truro Church, The Falls Church and other parishes were successful at the trial court level. (The Virginia Supreme Court has accepted the case for review.) In order to disaffiliate, the parishes availed themselves of an 1867 state "division statute." This statute provides that if there is a division in a church in which trustees hold congregational property, the congregation may, by majority vote, determine to which branch it will belong, and that property ownership will follow that determination.

This case has more in common with other cases than might appear. In the Virginia litigation, 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. The difference 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 rather than on the normal state law rules relating to property, trusts and legal entities. But the trial court might have reached the same result even if state law rules had been applied instead of the division statute.

A California case involving St. James' Anglican Church, Newport Beach, also involved a unique state statute, but in that case the statute was used against the disaffiliating parish rather than in its favor. TEC and the Los Angeles diocese have argued - so far successfully up to the California Supreme Court on an incomplete record - that the statute endorsed the use of denominational trust clauses such as the Dennis canon. They were also successful in making constitutional arguments that were not successful in South Carolina or, to date, in Virginia. The case has returned to the trial court for further proceedings.

A recent trial court decision in Georgia (Bishop of the Episcopal Diocese of Georgia v. Rector, Wardens and Vestrymen of Christ Church in Savannah) found that the property of historic Christ Church reverted to the control of the Bishop of Georgia when the parish disaffiliated. This trial court, unlike South Carolina's Supreme Court, found that an "implied trust" over parish property already existed, which the Dennis canon only made explicit. The case is being appealed to the Georgia Supreme Court, where the parish will presumably argue in part that the trial court's implied trust analysis is based not on accepted principles of trust law but on a limited number of cases that give special treatment to churches considered hierarchical.

Diocesan Cases

The cases involving disaffiliating dioceses are different from the parish cases in significant respects. The Dennis canon is not implicated, at least directly, because the Dennis canon applies to property held by parishes and missions but not to property owned by the diocese or other diocesan entities in their own right. The diocesan cases inevitably bring a sharp focus to what exactly could prevent a diocese from withdrawing. TEC essentially claims that a diocese is a "subordinate unit" that may not unilaterally disaffiliate.

But there is no provision in TEC's constitution or canons that states that a diocese may not disaffiliate, and legal authorities establish that a member of an unincorporated nonprofit association such as TEC must, on constitutional and public policy grounds, be allowed to withdraw from membership. Thus, according to the Revised Uniform Unincorporated Association Act (Section 20 and accompanying commentary): "Preventing a member from voluntarily withdrawing from a UNA [unincorporated nonprofit association] would be unconstitutional and void on public policy grounds." Likewise regarding incorporated nonprofit associations (see Model Nonprofit Corporation Act Section 6.20[a] and accompanying comment): "A nonprofit association generally cannot force a person to belong to it." Moreover, words like subordinate and other terms characteristic of a hierarchy do not occur in TEC's constitution and canons.

The recitation of a three-tiered hierarchical structure (national organization, dioceses, and parishes and missions) that frames TEC's legal papers thus does not reflect a view of TEC polity that is consistent with its history or reflected in its own authoritative, governing texts. The Anglican Communion Institute has published papers on this subject. And non-legal academic commentary also illustrates the exaggeration in TEC's hierarchical claims, as in the observation by Mark Chaves that "denominations usually considered to have the most highly centralized religious authority (i.e., denominations with episcopal structures), actually have religious authority that is only highly centralized at the regional level. Even in the Episcopal Church or in the United Methodist Church, for example, religious authority is highly decentralized from the national perspective. To say this another way, episcopal denominations are like sets of relatively autonomous fiefdoms while the more unitary denominations are like nascent nation-states in which a single king has established authority over subordinate feudal lords."

Some argue that accession clauses in diocesan constitutions or canons result in subordination of the diocese to the national organization. Mark McCall's essay "Is the Episcopal Church Hierarchical?" demonstrates no support for the idea that the presence of an accession clause implies a prohibition on withdrawal. Arguing that accession to the association's rules implies irrevocable subordination doesn't succeed because the very existence of the association is premised on agreement to be bound by its rules. The very same unincorporated nonprofit associations, the members of which must be allowed to withdraw on constitutional and public policy grounds, typically have governing documents containing an agreement to be bound.

Because dioceses are withdrawing from only one organization, litigation concerning their ability to withdraw should involve less variation in the relevant facts. Calvary Episcopal Church v. Rt. Rev. Robert W. Duncan is unique in that so far the dominant issues have been connected with the terms of an earlier stipulation (a form of settlement document) about ownership of diocesan property, rather than the legal ability of the diocese to withdraw. In The Episcopal Diocese of Fort Worth v. Salazar, the judge has expressed skepticism from the bench about claims that the Fort Worth diocese is prohibited from withdrawing from TEC, but at this early stage of the proceedings involving preliminary motions, he has been reluctant to follow the logic of his observations to their natural conclusions. In Diocese of San Joaquin v. David Mercer Schofield, the trial judge has been much more receptive to TEC's arguments - a factor, perhaps, in the somewhat unusual decision of an appellate court to entertain a request for review while the case is still before the trial court.

Common Thread: Special Treatment

While there are significant factual and legal variations in parish cases (less so with diocesan withdrawal cases), one common thread emerges. It is the degree to and frequency with which TEC argues (although it sometimes denies doing so) for special treatment for itself and other more clearly "hierarchical" religious denominations not accorded to secular organizations. This can be seen, 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 legal pleadings but not in TEC's constitution, and in the insistence that dioceses cannot withdraw, without citing language that prohibits withdrawal. The assumption of entitlement 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 TEC's behalf by the Presiding Bishop without constitutional or canonical warrant. (See my earlier essay, "Litigation against Disaffiliating Dioceses: Is it Authorized and What does Fiduciary Duty Require?" pp. 3-15.)

TEC (and dioceses) have not been without success in taking this stance. Many are familiar with the concepts of "hierarchical deference" and "neutral principles" as they apply to methods of resolving church property disputes. But overt hierarchical deference is declining. As Kent Greenawalt observed in his article "Hands Off. Civil Court Involvement in Conflicts over Religious Property," hierarchical deference "contains an anomaly that is so evidently impossible to justify, it will almost certainly not survive."

TEC has also been helped by instances in which courts purport to apply neutral principles, but wind up creating, in practical effect, special exceptions for hierarchical denominations. Professor Patty Gerstenblith describes the problem:

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 implied intent and implied consent without any inquiry into the actual intent of the 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, TEC's arguments go further, and most of the courts finding an inability to disaffiliate with property intact have found it necessary to reach beyond neutral principles.

A Moral Argument?

Improperly basing legal conclusions on presumptions about intent brings to mind other uses of presumed intent, namely, to frame a moral argument. TEC leaders have argued or implied that they have a moral duty to guard the intent of prior donors. For example, the Rt. Rev. Edwin Gulick, Bishop of Kentucky and the first provisional bishop of the reorganized Diocese of Fort Worth, is quoted as saying recently: "The Episcopal Diocese of Fort Worth, heir and steward of the legacy of generations of faithful Episcopalians, has this day brought suit to recover that legacy." And Presiding Bishop Katharine Jefferts Schori said in July 2008: "We really don't have the authority or the moral right to give away those gifts that have been given by generations past and for the benefit of generations now and the benefit of generations to come."

If these are meant to be moral arguments - and Bishop Jefferts Schori uses the word moral - they are founded on an empirical premise. How would one go about determining donor intent? Are Bishops Gulick and Jefferts Schori in a better position to determine it than, for example, Bishop Iker and the majority of the Fort Worth diocese that voted to leave? As Greenawalt writes: "Do local church members mean to adhere to hierarchical decisions in ... altered conditions, rather than to the principles prevailing when they decided to join, or to local officials who refuse to follow the hierarchy? No confident generalization can capture what highly diverse local members have in mind." And he continues, in an especially pertinent passage for our current circumstances:

Perhaps donors of property or large sums of money have more attachment to a central denomination than the average parishioner, but one can hardly assume that loyalty is to the general denomination, regardless of how doctrines shift, procedures are observed, or foreign political influences are brought to bear. And, as Michael Galligan has urged, "[s]ome churches resemble a federation of autonomous groups rather than a totally integrated entity. Even when a church is essentially hierarchical, agreements of union between specific churches and the central 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 all church government into two rigid boxes.

Because we don't know specifics about donor intent in most cases, a neutral principles approach properly carried out won't make assumptions about donor intent that aren't reflected in relevant documents in a legally effective way. Moreover, since most local donors do not give subject to an explicit restriction that favors the national denominational organization, the suggestion that such restrictions nonetheless exist de facto in all cases raises a question of disclosure: "Why weren't we told this when we made the contributions?" One answer might be, "Everyone knows this is a hierarchical denomination." But to say there is a hierarchy does not describe its structure and to what substantive areas its authority extends; nor, again, have sweeping assertions regarding the existence of a putative three-tiered hierarchy in TEC been demonstrated from its constitution and canons.

How, then, to determine the substance and extent of hierarchy? TEC has argued, using passages from a few court decisions describing it as hierarchical, that it is not up to courts to assess the validity of many of the arguments advanced, and that deference must instead be given, under the First Amendment, to TEC's own determinations about its polity. It is not clear, however, that the First Amendment comes into play when the matter at issue concerns neither religious doctrine nor ecclesiastical polity but property ownership and organizational issues that can be analyzed using neutral principles of law. And even if it were established that deference is due to a hierarchical body, how shall that body (and who speaks for it) be identified? If, for instance, it is true that "only people," and not parishes or dioceses, can leave TEC, where is the record of that determination? The answer cannot be that deference must be accorded to whoever controls the accounts used to pay the lawyers who come into court and make the arguments. As the late Chief Justice William Rehnquist said: "If the civil courts are to be bound by 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 lawlessness." In the cases at hand, there is even less than parchment with a purported court decree.

Is De-Escalation a Possibility?

Since the main conceptual drivers of TEC's litigation positions are hierarchical notions not embodied in its constitution and canons, and because General Convention has not directed or authorized particular lawsuits, it should be easier to lessen the conflict than might otherwise be the case. Might such a possibility be considered? In a July 31 letter to the House of Bishops, Bishop Jefferts Schori stated her criteria for settlement of property litigation in a new way. First, she suggested that settlements should contain "a reasonable and fair financial arrangement." This is significantly different from her previous suggestion simply that payment of "fair value" of the property should be required, since determining a reasonable and fair financial arrangement could obviously take into account a number of factors in addition to property value, including the parties' respective assessments of the merits of their legal positions and the costs, financial and otherwise, of carrying on the effort. Second, the Presiding Bishop proposed in her letter that settlements should not "encourage religious bodies who seek to replace The Episcopal Church," a rather different condition than the previously articulated categorical restriction on permissible transferees.

In all events, it seems apparent that TEC's litigation efforts are leading in a direction unlikely to be beneficial, and that the costs are great. In her July letter the Presiding Bishop also indicated that there had been an uncompleted discussion of property litigation among the bishops at General Convention, and she suggested resuming the discussion in March. May the discussion indeed resume, and may more bishops favor restraint.

---Mike Watson is a lawyer retired from law firm practice in Houston, Texas. He is a member and former parish chancellor of St. Martin's Episcopal Church in Houston.

Select bibliography

Chaves, Mark. "Denominations as Dual Structures: An Organizational Analysis," Sociology of Religion, 54/2 (1993)

Gerstenblith, Patty. "Civil Court Resolution of Property Disputes among Religious Organizations," American University Law Review 39 (1990)

Greenawalt, Kent. "Hands Off. Civil Court Involvement in Conflicts over Religious Property," Columbia Law Review 98 (1998)

Hassler, Jeffrey B. "A Multitude of Sins? Constitutional Standards for Legal Resolution of Church Property Disputes in a Time of Escalating Intradenominational Strife," Pepperdine Law Review 35 (2008)

McCall, Mark. "Is the Episcopal Church Hierarchical?" [PDF] for the Anglican Communion Institute (2008)

Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 727 (1976) (Rehnquist, J., dissenting)

Watson, Mike. "Litigation against Disaffiliating Dioceses: Is it Authorized and What does Fiduciary Duty Require?" [PDF] for the Anglican Communion Institute (2009)