ECUSA and diocese play hardball with congregations wishing to leave
By Paula R. Kincaid, January 25, 2007
The Episcopal Church (USA), like its sister denomination the Presbyterian Church (USA), has decided to play hardball with congregations that vote to leave the denomination over theological concerns.
No “secret” legal and polity strategies like the PCUSA’s “The Louisville Papers” have been uncovered in the ECUSA, but top officials are making it clear they intend to fight – all the way to civil court, if necessary – for church property.
Canons of the Virginia Diocese
regarding church property
“All real and personal property held by or for the benefit of any church or mission within this diocese is held in trust for The Episcopal Church and the Diocese of Virginia. No part of the real property of a church, except abandoned property, shall be alienated, sold, exchanged, encumbered or otherwise transferred for any purpose without the consent of the congregation … [and] the bishop, acting with the advice and consent of the Standing Committee of the Diocese … any property, real or personal, formerly owned or used by any congregation of the Episcopal Church in the Diocese of Virginia for any purpose for which religious congregations are authorized to hold property under the provisions of the Code of Virginia or any amendment thereof, has ceased to be so occupied or used by such congregation, so that the same may be regarded as abandoned property by the executive board, which shall have the authority to declare such property abandoned and shall have the authority to take charge and custody thereof, the executive board shall take such steps as may be necessary to transfer the property to the bishop…”
PCUSA’s property
trust clause
G-8.0201: All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (USA), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (USA). Since the majority of members in 15 congregations in the Diocese of Virginia voted recently to leave the more liberal ECUSA over theological reasons, the diocese has inhibited 21 clergy members attached to those congregations and declared the property of those churches “abandoned,” the first step in trying to seize the property for the denomination.
The departing churches have either affiliated with Church of Uganda or the Convocation of Anglicans in North America (CANA), an Anglican missionary effort in the U.S. sponsored by the Church of Nigeria (Anglican Communion). Both are viewed as theologically conservative.
In the ECUSA, all church property is claimed to be held in trust for the diocese and, in turn, the national church. In the PCUSA, all property is claimed to be held in trust for the denomination.
Inhibits clergy
On Jan. 24, the Diocese of Virginia announced its decision to inhibit the 21 clergy members and rescind the licenses of six others. The inhibition bars the clergy from performing any priestly duties in the diocese or from participating in denominational or diocesan councils. It also will make them ineligible to earn further credited service toward their ECUSA pension, so that when they reach retirement age they would receive a pension based on service before their removal from ministry.
The decision by Virginia Bishop Peter James Lee stated that the clergy were leading congregations that have declared “they do not recognize the ecclesiastical or legal authority of either The Episcopal Church or The Diocese of Virginia. As a result, those clergy have openly renounced the doctrine, discipline or worship of The Episcopal Church and, therefore, have abandoned the communion of The Episcopal Church.”
Under the canons, the clergy have six months to reverse their decisions before they are removed from the Episcopal ministry.
But according to the clergy and members of the departing churches, it is the denomination that has abandoned the faith.
The Rev. John Yates and Os Guinness, the rector and a parishioner of The Falls Church, their congregation was leaving the “Episcopal Church because the Episcopal Church first left the historic faith. Like our spiritual forebears in the Reformation, ‘Here we stand. So help us God. We can do no other.'”
The other congregations also cited theological concerns, including issues of Biblical authority, the departure from the historic teaching of the Anglican Communion and sexuality.
Declares church property ‘abandoned’
The diocese also has declared the property of those congregations “abandoned,” and authorized its bishop to “take such steps as may be necessary to recover or secure such real and personal property” of those congregations.
The Washington Post reported that lawyers for the congregations have sent a letter to diocesan officials warning them that “they would be exposed to ‘substantial legal risk – including liability for trespass and unlawful entry’ – if they attempted to take possession of the property.”
In the days following the congregational votes, the leadership of the churches and the diocese reached a 30-day “standstill agreement” stating that the congregations would not attempt to transfer church property to their ownership and the diocese would not initiate any litigation concerning the departures.
According to The Living Church,
the list of clergy and their churches
inhibited by Bishop Lee include:
The Rev. Robin T. Adams (Church Of The Word, Gainsville)
The Rev. Marshall Brown (Truro, Fairfax)
The Rev. E. Kathleen Christopher (Saint Francis, Great Falls)
The Rev. Jack W. Grubbs (Potomac Falls, Sterling)
The Rev. David N. Jones (Saint Paul’s, Haymarket)
The Rev. Herbert J. McMullan (Truro, Fairfax)
The Rev. Valarie A. Whitcomb (All Saints, Woodbridge)
The Rev. George R. Beaven (Christ Our Lord, Woodbridge)
The Rev. Neal H. Brown (Saint Margaret’s, Fairfax)
The Rev. Richard C. Crocker (Truro, Fairfax)
The Rev. John A.M. Guernsey (All Saints, Woodbridge)
The Rev. Nicholas P.N. Lebelfeld
The Rev. Elijah B. White (Our Savior, Hamilton)
The Rev. John W. Yates II (The Falls Church)
The Rev. Mark W. Brown
The Rev. Jeffrey O. Cerar (St. Stephen’s, Heathsville)
The Rev. Ramsey D. Gilchrist (Saint James’, Mount Vernon)
The Rev. David R. Harper (Apostles, Fairfax)
The Rev. Marion D. Lucas, III (Epiphany, Herndon)
The Rev. Robin Rauh (Epiphany, Herndon)
The Rev. Frederick M. Wright (The Falls Church) The diocese announced Jan. 9 that it would not renew the agreement. Nine days later, the diocese’s executive board declared all of the property “abandoned.”
In a letter to his diocese, Lee said the leadership “took action to preserve the sacred mission entrusted to us by previous generations for the future of the Church here in Virginia and across the Episcopal Church.”
He said when the majority of the congregations voted to leave the ECUSA, they left those voting in the minority “without vestries, without clergy and without their churches, whether the remaining congregations numbered one or 100 souls. The spiritual abandonment of their Episcopal brothers and sisters of the past, the present and the future, is perhaps the greatest offense for which there is no redress under our tradition.”
Denies transfer of property
The diocese also has filed responses with the circuit courts to the congregations’ filings of “civil actions styled as ‘reports’ with the respective circuit courts in an effort to transfer ownership of the affected properties.” The responses of the diocese deny any transfer of property and cite both Virginia law and the canons of The Episcopal Church and the Diocese of Virginia.
Saying they were complying with “a longstanding requirement of Virginia law,” the congregations reported the results of their votes to the circuit courts of their respective counties during the week following the congregational meetings.
According to a press release from The Falls Church, “The Virginia statute invoked in the congregations’ legal filings (Va. Code § 57-9) provides that when a religious denomination or diocese experiences a ‘division,’ member congregations may determine, by majority vote, which branch of the divided body they wish to join. It also states that this determination governs the ownership of property held in trust for the congregation.” In stating their reasons for believing the congregations own their property, Yates and Jim Oakes, senior warden at Truro Church, claimed:
- The deeds generally grant the property to local congregations, not the diocese.
- Virginia courts have said more than once that so-called denomination “trusts” in congregational property are not valid in the state.
- The properties have been purchased, built, improved and maintained with donations from the members of each congregation, not from the diocese.
- The flow of financial support has run from the congregations to the diocese, not the other way around.
Negotiation ‘unduly cumbersome’
Lee said he tried to keep the property disputes out of the civil courts, but “no longer am I convinced that such an outcome is possible, nor do I believe that such a move at this time is dishonorable. Rather, I believe, as does the leadership of our diocese and of our church, that the actions taken to secure our property are consistent with our mission and with our fiduciary and moral obligations to the church of our ancestors, to the church we serve today, and to the church of those who will follow us. … It became clear that the process of negotiation would be unduly cumbersome and would risk further a second alienation of those loyal Episcopalians who had already been disenfranchised by the vote of the majority of their former members.”
Katharine Jefferts Schori, presiding bishop of the ECUSA, has given her full support to the diocese. While saying the denomination regretted the recent congregational votes, the ECUSA wanted to be clear “that while individuals have the right and privilege to depart or return at any time, congregations do not. … Congregations cannot unilaterally disestablish themselves or remove themselves from a diocese.”
She said canon law states that all property held by parishes “is held and must be used for the mission of the Episcopal Church through diocesan bishops and governing bodies. As a church, we cannot abrogate our interest in such property, as it is a fiduciary and moral duty to preserve such property for generations to come and the ministries to be served both now and in the future.”
Schori’s intervention in the property disputes highlights a dramatic shift from her predecessor, Frank Griswold who, according to Oakes, “took the position that property disputes are in the purview of the diocese. … The current presiding bishop seems to be taking a different position.”
Reactions
Various members of the congregations, Anglican organizations and renewal groups have commented on the ECUSA’s recent actions. Clips from those statements and links to the full statements follows.
Institute on Religion and Democracy:
“It is tragic to see that the diocese has so quickly concluded that it cannot negotiate with the Virginia parishes. The diocese is using the term ‘abandoned’ with certain canonical connotations in an attempt to bolster its case against the parishes, but who has done the abandoning here?” asked Anglican Action Director Ralph Webb.
“They believe that the Episcopal Church has taken unilateral actions that went expressly against the mind of the majority of Anglicans worldwide. They also hold that the Episcopal Church has abandoned historic Christian orthodoxy. The parishioners currently remain at the properties where they have worshiped for years and invested their service, prayers and money. They want to worship God faithfully and within an Anglican context. Who is guilty of abandonment here?”
American Anglican Council:
“I am deeply disappointed, though not surprised, at the Diocese of Virginia’s sudden resort to litigation after pledging to avoid court battles in a protocol agreed upon last fall,” said the Rev. Canon David C. Anderson, AAC president and CEO. “The churches involved have indicated a clear willingness to negotiate a fair, amicable agreement regarding their properties, but the diocese has prematurely ended these discussions under the guise of concern for the diocese and national church, despite the fact that all options for an agreement have not been exhausted.”
He called it “ironic that a diocese and national church which so pride themselves on ‘reconciliation’ should ignore the chance for peaceful negotiation and instead choose to spend precious resources on expensive lega