For the most part, dioceses who have sued orthodox parish priests and vestries to retain the properties have been successful. A number of parishes in the Diocese of California have been more successful because of state laws favoring the local parish. But that is still an open question as these liberal diocesan bishops repeatedly counter-sue in state courts to "recover" the properties that say rightly belong to them even though, in most cases, they did not put a dime into their construction. Most parishes in the U.S. were built by parishioners. If it wasn't for the Dennis Canon they would, in all probability, retain the right of ownership to this day. Furthermore there is a serious question as to whether the Dennis Canon was validly adopted.

San Diego Bishop James R. Mathes in a letter to his diocese wrote this: "As far as property disputes are concerned, I see this as a critical issue of the faith and order of the church. While clearly we hope every parish will be financially self-sustaining through the stewardship of parishioners, it is far from precise to assume that all assets of a parish are the result of parishioner giving. In many cases, the Diocese invested significantly at the front end when the parishes were missions. More importantly, these congregations were begun as Episcopal communities. Every gift given would rightly be assumed to have been given to an Episcopal congregation. As far as our canons are concerned, they do indeed assume a trust relationship--that is, that the property is held in trust for the ministry of the Episcopal Church. That is why the Diocese deeds the property to a newly established parish, because it can rightly assume a perpetual relationship of trust."

The courts differ in how they handle church property disputes and not all courts agree with Bishop Mathes' interpretation. State corporate laws governing property ownership, deeds, and trusts are far from uniform and may be subject to conflicting interpretations.

To keep orthodox bishops from letting orthodox parishes flee with their properties, the national church is pouring huge amounts of money into the law firm of David Booth Beers to see that the dioceses do not weaken and cave into the demands of parishes who may be tempted to fight for their properties.

Because property ownership is in the realm of state corporate law, a few courts years ago began deciding church property disputes according to "neutral principles" while steering clear of doctrinal squabbles. This profoundly bothers the Episcopal Church. The U.S. Supreme Court in 1979 (Jones v. Wolf) not only approved but also encouraged this approach to local church ownership. The Episcopal Church hurried to add the Dennis Canon to its constitution, clearly claiming that property owned by churches is held in trust for TEC.

Times-and the courts-are changing. All this is going to be challenged by whole dioceses that are thinking of fleeing the Episcopal Church.

Mrs. Jefferts Schori, the Episcopal Church's Presiding Bishop, is on record saying that the sale of properties can be sold to another church as long as that church is not associated with other Anglican groups. So it can be sold to say a Methodist or independent evangelical or community church, a restaurant or night club, but not to a fellow Anglican who wishes to remain loyal to the Anglican Way. (It should be noted that the former cathedral in Western Michigan was recently sold to a large evangelical mega church.)

The question that is foremost in the minds of orthodox dioceses who are thinking of leaving the denomination is this: Does the national church have any claim on individual properties of fleeing dioceses?

A departure by a diocese will almost certainly land the two sides in court over the question of whether a diocese can take its institutions, property and endowment with it.

The Peoria-based Diocese of Quincy, which includes 23 churches and missions in west-central Illinois, has long been in disagreement with the church's liberal direction, and may find itself facing this very question. High church Anglo-Catholic Bishop Keith Ackerman has said his primary concern is to uphold the diocesan constitution and keep the Diocese of Quincy in good standing with the worldwide communion in the event that The Episcopal Church is kicked out. His rationale for keeping the properties is to keep his diocese's place in the Anglican Communion.

According to Episcopal Church spokeswoman Neva Rae Fox said a Quincy vote to leave would have to go through the church's General Convention in 2009 in order to be recognized. Dioceses can't leave The Episcopal Church on their own say-so because they were created by the church's General Convention.

"They're dead wrong on that," said Wicks Stephens, legal adviser for the Anglican Communion Network in Pittsburgh, of which the Diocese of Quincy is a part.

"If you read the constitution and canons of The Episcopal Church, in order for a diocese to come into union with other dioceses of The Episcopal Church through the General Convention, that diocese has to meet certain standards, including forming itself, becoming financially sustainable and other things, including allegiance to The Episcopal Church."

The Rev. John Spencer, president of Quincy's joint standing committee, agreed with Stephens, saying, "If you actually read the constitution carefully, what it says is the people and the churches and the clergy form a diocese." Dioceses, the vicar of St. Francis Church in Dunlap said, created the General Convention, not the other way around. Plus, according to Quincy chancellor Tad Brenner, the diocesan constitution "specifically gives us the ability to end that association" with TEC.

The diocese most in conflict with the national church as it prepares to exit The Episcopal Church, is the Diocese of Pittsburgh, which has a vociferous and litigious minority of liberal parishes. Two parishes have sued and one is suing the diocese.

The predominantly orthodox diocese is getting ready for that possibility and in pre-convention reports and resolutions raises that very possibility.

The diocese will vote to dis-affiliate and realign with another Anglican province. But first it must vote to amend the Constitution at this Convention, then in a second vote amend the Constitution at their next annual Convention, (tentatively slated for November of 2008) and finally in a third vote at an annual convention to adopt a canon that specifies membership in a province other than TEC.

The whole concept of realignment presupposes that TEC will continue to walk apart and that the Diocese will identify another Province that would accept it into membership, say diocesan leaders.

The diocese maintains that the canons of the Episcopal Church do not assign any authority to the General Convention or to the Presiding Bishop over the Dioceses. In the last General Convention legislation that "directed" a Diocese to do something, was regularly and intentionally changed to "urge" or "request."

There is no National Court that has jurisdiction over a diocese, only a Court for the Trial of a Bishop and Provincial Courts of Review (Clergy Discipline). Attempts at several General Conventions to establish such a Court have been rejected.

In short, the Constitution and Canons are silent on the matter of a Diocese disaffiliating.

The diocese cites the case of nine southern dioceses disaffiliating in 1861. No action was ever taken against them, nor was any legislation ever adopted to block it from happening again. "While we do not sympathize with the cause of those dioceses, the precedent is clear."

The Dennis Canon alone attempts to establish national authority over property held by parishes. It does not appear to give The Episcopal Church any claim over diocesan property. It is a general principle of law that such a trust cannot be established without the consent of those affected.

Three parishes of the Diocese of Pittsburgh, existed prior to the founding of the Diocese of Pennsylvania, as well as before the creation of the Protestant Episcopal Church in the United States of America.

Bishop Duncan maintains that the passage of Resolution One sets a direction for the diocese, but in fact makes no immediate changes to the status of the diocese, parishes or individuals.

Assuming the passage of Resolution One, it would be in this period that a discussion would be undertaken about which Anglican Province to affiliate with upon dis-affiliation from the Episcopal Church.

It would be in this period that determinations and negotiations would be undertaken as to how the minority (those who disagree with the dis-affiliation) would be charitably and equitably treated, including the hope that they would remain a part of the Diocese and continue to benefit from its resources and mission strategy.

It is also hoped that a mediated settlement in the best interests of all parties will be accomplished.

Some, though sympathetic with the orthodox faith of the majority of the diocese, believe now is not the time for action. Why should the diocese act now to begin this process?

The fight has been draining to all, says Duncan. "Two different trajectories are unmistakably clear. All of us need to get back to the mission as we understand it. Continuing to invest energies in the battle, or in control of one another, is a scandal to the world and odious to our God."

However odious it is to God, you can be sure the odor of dis-affiliation will waft all the way to the church's national headquarters where, it can be assumed, the pencils are being sharpened for legal action against Duncan and the diocese.

Mrs. Jefferts Schori has already threatened Bishop John-David Schofield (San Joaquin) should he attempt to take church properties out of the Episcopal Church, one sees no less a statement and action being enacted against Bishop Robert Duncan.

It is a different ball game when the National Church wants to sue to enforce the Dennis Canon - as distinguished from the diocese suing an individual parish. There are more questions here than answers. The first question is; who can sue on behalf of the national church? Secondly, can the national church really sue anyone? Third, since the trust is on behalf of both the national church and the diocese, what happens if the diocese refuses to join in the lawsuit?

The coming departures of whole dioceses poses a legal minefield for the national church who will need to prove they have a right to all of these properties.

Whichever way it goes the end of the Episcopal Church with fleeing dioceses will come not with a bang but long, drawn out and decidedly unpleasant legal actions.

END