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May|June 2004
Exodus. Numbers. Judges. By Elizabeth Austin
Just Say Nothing By Gary Greenberg

Exodus. Numbers. Judges.

As conservative parishes leave the liberal Episcopal Church, who shall inherit the real estate?

By Elizabeth Austin

ONE SUNDAY MORNING IN MAY 2001, Bishop Jane Holmes Dixon donned her official white vestment and sleeveless red robe and paid a visit to Christ Episcopal Church, a small, white-steepled, 300-year-old church in the suburban town of Accokeek, Md.

It was not a courtesy call. Dixon, the 63-year-old bishop of the Episcopal Diocese of Washington, D.C., arrived with the announced intention of removing a renegade priest from the pulpit.

When she reached the church steps, however, a group of the priest's supporters blocked her path. Lay leaders of the Accokeek church told Dixon she was welcome to sit and worship in the pews. But they did not recognize her spiritual authority as bishop and would not allow her to preside at the mass, even though Episcopal Church canons explicitly give bishops that right when they visit churches in their own dioceses.

While Dixon, only the second female bishop in the U.S. church's history, had a reputation for feistiness, she chose not to push her way inside. Instead, she celebrated mass at a card table set up on the church's outdoor basketball court, where about half the congregation joined her.

Meanwhile, the Rev. Samuel L. Edwards held the pulpit inside the church. Edwards had been hired at Christ Church by the parish's elected lay leadership just five months before. Prior to that, he headed Forward in Faith North America, a Texas-based group of Episcopal clergy and laypeople that opposes the ordination of women and homosexuals and the blessing of same-sex unions. Dixon, concerned about Edwards's history of fiery rhetoric against the national church, had refused to approve his appointment by the parish. When the priest ignored her orders to step down, she came to Accokeek to enforce them and assert her rights as bishop.

After being relegated to the card table, Dixon filed suit in U.S. District Court, won a summary judgment to unseat Edwards, and then won again when Christ Church appealed to the Fourth Circuit. The courts ruled that Dixon had clear authority under the church's laws and that Edwards's contract with the Accokeek congregation was void without the bishop's approval. Facing trial in ecclesiastical court for rebuffing Dixon, Edwards left the Episcopal Church in June 2002.

Over the past 30 years, similar conflicts have flared up in Episcopal parishes across America as congregations and clergy have grappled with changing liturgies, the ordination of women, the blessing of same-sex unions, and other hot-button issues. But with the recent consecration of the denomination's first openly gay bishop, Gene Robinson of New Hampshire, new and angry battle lines are forming in dozens of parishes and dioceses.

That means secular judges will be forced to interpret the church's hybrid structure of authority, an amalgam of Roman Catholic-style hierarchy and Protestant populism. The courts will have to decide how much power bishops really have and who, literally, owns the church, which has about 2.3 million members in 7,500 churches and controls billions of dollars' worth of real estate. Even as church leaders search for a solution that will allow liberals and conservatives to coexist, more bitter court fights seem likely over who keeps the church building—and who gets stuck with the card table.

The legal decisions will probably hinge on whether the courts uphold the Episcopal bishops' right to control real estate owned by individual dissident parishes. So far, when bishops have decided to play legal hardball with dissident priests, the courts have deferred to the church's hierarchical structure.

That may make it seem that Dixon and other Robinson supporters are likely to end up with the real estate. But that same hierarchical structure could also give muscle to the conservatives in dioceses led by bishops who bitterly opposed Robinson's ordination. The courts could well rule that a bishop who wants to boot out a liberal priest has as much right to control a diocese's properties and pulpits as Dixon did.

FIGHTING MAY SEEM OUT OF CHARACTER in a denomination that has traditionally been viewed as "the church in wing tips, the church of the Scotch and soda," made up of well-bred people "worshipping God in extremely good taste," in the words of the Episcopal convert Garrison Keillor. Over its 300-plus years of existence, the Anglican Church in America has weathered revolution, civil war, world war, segregation, integration, and the switch from the King James Bible to the New Standard Revised Version with relatively few splits or schisms.

In part, that reflects the great emphasis the church has placed on "the bonds of affection," the idea that Christians should love each other and focus on values that unite instead of those that divide. At the time of the Reformation, theologians in England watched in sore distress as European theological disputes gave rise to bloody purges, tearing countries apart and sharply reducing tithes.

When the Anglican Church broke from Rome in the 16th century, its leaders vowed to find a "via media," a middle way, that would allow English Calvinists and Catholics to worship in the same pews. This gave rise to a comfortably squishy theology: Church tradition was celebrated but so was human reason, or discernment, as a gift of the Holy Spirit. Congregants had to believe in the Holy Trinity, the virgin birth, and the divinity of Christ, but were invited to follow the old forms of worship or think up new ones as they saw fit. The Church of England was the original "big tent."

The situation became even more diffuse after the American Revolution, when church leaders sat down to create a new, more democratic Anglican church in the new United States. Officially throwing off the authority of the English crown and the archbishop of Canterbury, the leaders organized the church into a federation of dioceses, each led by a bishop.

The nation's dioceses were governed by the General Convention, made up of the House of Bishops and the lay House of Deputies. The founders also set up an ecclesiastical court system, but church government had no executive branch. Instead, an elected presiding bishop would act as the church's chief pastor and top administrator, generally keeping things running smoothly between the General Convention's triennial meetings but holding little real power.

All of which is truly arcane and internecine—and absolutely vital to understanding the current conflict, which pits priests against bishops and dioceses against the national church.

In the past, the Episcopal Church's loose theology has allowed liberal and conservative parishioners, priests, and bishops to avoid major schisms. When the General Convention voted to allow the ordination of women, for example, bishops who opposed the move were allowed to ban women priests from the altars in their dioceses. And on the parish level, worshippers who disliked their priest's take on social justice, international policy, or the proper liturgical color for Advent (light blue vs. violet) were welcome to vote with their feet and seek out a more congenial pastor at a neighboring church. As a result, many generally conservative dioceses wound up dotted with islands of liberal parishes, and vice versa.

Still, that tolerance has gone only so far. When a few angry parishes pulled out of the national church to protest the larger church's liberal direction in the 1970s, they succeeded in taking buildings and other assets with them. In response, in 1979 the General Convention passed Canon I.7.4, also known as the "trust canon" or the "Dennis canon," after Bishop Walter Dennis, its author. It states that "all 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."

While a congregation may hold the deed to its church building, that property is legally held in trust for all Episcopalians in the diocese by its bishop. The national canons further state that the trust relationship is in effect even for individual dioceses that don't rewrite their own canons to reflect the national rules.

Now, when disaffected priests or parishioners decide to leave the church, its response is straightforward: "We're sorry you're leaving, we hope you'll be back soon, and please drop off all the deeds, the bankbooks, and the sterling silver collection plates on your way out."

WHEN IT COMES TO SORTING OUT CHURCH SQUABBLES, the secular courts generally ask the rebellious faction one simple question: "When you joined up, did you agree to honor and obey (if not always love) the church higher-ups?"

If the answer is, "Heck, no" (as in the case of Baptists, for example), a congregation can decide to change pastors, change denominations, or convert the sanctuary into a bowling alley without consulting the folks over at the national office. But when a denomination has a hierarchical structure with the legal documents to prove it, it's almost impossible for a priest or parish to contest the larger church's authority and win in court. As the Supreme Court said in 1976, "the First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters."

For example, if a Roman Catholic parish holds a congregational vote and decides to start following Buddha instead, there's no question who's in charge. Under the strict hierarchy of the Roman Catholic Church, the bishop holds all diocesan property in corporation sole, which means that he can pretty much do with it as he pleases (short of fraud or embezzlement). And it's hard to imagine a Roman Catholic bishop telling a dissenting congregation, "Take the building, and God bless."

In general, the secular courts have ruled that the Episcopal Church is also hierarchical in nature, so dissenters have no legal right to contest the Dennis canon's validity.

In March 2000, the vestry of St. Andrew's Episcopal Church in Morehead City, N.C., voted unanimously to withdraw from the Diocese of East Carolina and from the Episcopal Church—and place itself under the authority of the Anglican archbishop of the province of the Central African nation of Rwanda, where bishops are much more conservative. The vestry further announced that the church's property was held wholly and without restrictions on transfer by the parish, and they intended to keep it.

After some civil but pointed correspondence, the East Carolina diocese's bishop, along with parish leaders from St. Andrew's who did not support the break, brought suit in North Carolina's Carteret County Superior Court. Citing the Dennis canon, the suit accused the breakaway group of a "ruthless taking of property" and "an unlawful destruction of religious activity," as well as a "breach of their vows and declaration of loyalty to the Bishop, the Diocese, and the Episcopal Church in the United States."

The bishop asked the court to evict the breakaway group from the church building and to force them to return to the diocese any and all money or property belonging to the church. The defense countered to the court that St. Andrew's had never agreed in writing to abide by the Dennis canon, so only North Carolina's property laws applied.

A jury trial ended in a mistrial. But in January 2002, a special superior court judge handed down a summary judgment in favor of the bishop. Citing the Supreme Court's 1979 decision in Jones v. Wolf, the court ruled that the First Amendment gives hierarchical churches the right to decide issues of religious doctrine or policy according to their own in-house rules. That decision was upheld by a three-judge panel of the North Carolina Court of Appeals in June 2003.

But not every case has been a clear victory for the diocese. In the Diocese of Quincy in west-central Illinois, the congregation of St. John's Episcopal Church split in two in 1993. Faced with a dissident ultraconservative priest, about half the congregation started holding services in the chapel of a nearby nursing home. Later, a judge ruled that the loyalists had surrendered the property by walking out. After a million-dollar battle, the two sides settled out of court in 1995. The group that had been holding service behind the nursing home got the buildings and some church funds, while the ultraconservatives got some cash and church heirlooms. In August 2002, the church building was struck by lightning and destroyed.

IN RWANDA AND SEVERAL OTHER AFRICAN COUNTRIES, the archbishops have already declared themselves "out of communion" with the Episcopal Church. They note that the Anglican Communion is 70 million members strong worldwide; only 2.3 million of those communicants are American—and a good number of those members don't hold with Robinson's consecration. So they contend the American church has taken a minority position that puts it far outside the mainstream of worldwide Christianity.

But even if the American church is booted out of the Anglican Communion—an unlikely scenario, insiders say—Episcopal Church leaders claim that wouldn't affect the American church's legitimacy within its own borders. While conservatives say they look to the archbishop of Canterbury as their spiritual leader, American church leaders insist he has no legal authority over them, and the church canons back them up. "It seems to me that the spiritual authority that he does hold over the Episcopal Church is precisely that, spiritual," explains the Rev. Canon J. Robert Wright, the official historiographer of the Episcopal Church.

There's a greater potential risk brewing though. So far, the national church has relied on secular courts' general willingness to uphold the Dennis canon. But the same legal logic that has been wielded by liberals in the past could snap back and give conservatives the right to hang on to their property in some dioceses.

That's the issue in yet another lawsuit, this one filed in October 2003 in the Court of Common Pleas of Allegheny County, Pa. Until now, Episcopal lawsuits have pitted conservative congregations and priests against liberal (or at least somewhat less conservative) bishops. But the Diocese of Pittsburgh is led by the conservative bishop Robert W. Duncan, who filed a friend-of-the-court brief on Edwards's behalf, and against Dixon, in the earlier Accokeek dispute.

Irate after the General Convention's vote to consecrate Robinson as bishop, Duncan convened a special diocesan convention. In apparent defiance of the national church canons, the diocese moved to release its control of parish property, breaking the trust relationship and giving each individual church the right to its own buildings and bank accounts.

Not so fast, responded the Rev. Dr. Harold T. Lewis, the rector of Calvary Episcopal Church in Pittsburgh and a Robinson supporter.

To block Bishop Duncan's giveaway, Lewis, along with his church and senior warden, filed suit, claiming to act on behalf of the entire Diocese of Pittsburgh. "There are parishes which are divided down the middle," Lewis said. "If they're divided, should the people who are loyal to the church have their birthright sold out from under them?"

Lewis's decision to name Bishop Duncan as defendant raises a difficult issue, both religiously and legally. As a priest within Duncan's diocese, Lewis has vowed obedience to his bishop—and the Accokeek case would suggest that the bishop is legally entitled to that obedience. But Lewis considers himself conscience-bound to oppose Bishop Duncan's recent move. "No bishop is above the law; no bishop is above the canons," he says.

If possible, the national church would prefer to resolve these disputes out of court. Its response to Lewis's suit, which will probably go to trial later this spring, has been lukewarm at best, as a ruling in Duncan's favor could send other conservative American bishops skipping merrily to the courthouse.

"We're not a part of that lawsuit," says the Rev. Jan Nunley, the deputy director of the Episcopal News Service. "I won't say we don't have a dog in that fight, but it was not instigated in any way by the church center." Instead, the national church is trying to craft a plan for "Supplemental Episcopal Pastoral Care," which would allow dissenting congregations and priests of either stripe to place themselves under the authority of an out-of-town bishop they find more congenial. However, that violates a church canon that bishops on both sides firmly uphold: "Nobody bishops on my turf but me."

Lewis says he understands the national church's reluctance, but he believes the lawsuit may act as a deterrent to other conservative bishops who might be considering a split. "Episcopalians suffer from an edifice complex," he said. "If people think they have to worship at the Holiday Inn, they may think twice."

But the Calvary suit could set a difficult precedent. In the past, said the historian Robert Prichard, the author of A History of the Episcopal Church, "the strategy supported by the national church has been to push for the power of individual bishops over dissenting congregations." But in those cases, the bishops did not question their dioceses' allegiance to the national church.

And here's where the church's Protestant roots start showing—and where secular courts may have trouble deciding who's in charge. In the Episcopal Church's hierarchy, the only thing standing between an individual bishop and his savior is a lot of clear airspace. While the presiding bishop acts as the church's executive director, the church canons do not give him final spiritual authority over his fellow bishops. Episcopal bishops can be deposed for various types of financial and theological misbehavior, but their consciences are under no authority but God's. That means legal precedent may favor conservative bishops who want to keep the liberal heretics at bay.

"Has this recent string of decisions provided a legal precedent that is going to strengthen the hand of dissenting bishops?" Prichard wonders. "If Bishop Dixon has the right to determine the worthiness of a priest, does that mean Bishop Duncan has the right to remove any priest in his diocese that he finds unworthy?"

That's a scary prospect for many in the church's liberal leadership, but there's nothing new under the sun. The Church of England was established when the unhappily married Henry VIII wanted to marry a nubile minx named Anne Boleyn. With the advice of Archbishop Thomas Cranmer, Henry realized that starting his own church would give him the power to end his marriage—and would simultaneously make him the owner of the Roman church's wealthy abbeys and monasteries and the land they sat on in England.

"The church got started on a sexual issue, a property issue, and an authority issue," commented one weary rector. "Five hundred years later, we're arguing about sex, we're arguing about property, and we're arguing about who's in control."

Elizabeth Austin is a Chicago writer and a practicing Episcopalian.

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