Sec. 4. All real and personal property held by or for the benefit of anyThe Living Church, Dec 10 2006:
Parish, Mission or Congregation is held in trust for this Church and
the Diocese thereof in which such Parish, Mission or Congregation is
located. The existence of this trust, however, shall in no way limit the
power and authority of the Parish, Mission or Congregation otherwise
existing over such property so long as the particular Parish, Mission
or Congregation remains a part of, and subject to, this Church and its
Constitution and Canons.
“The letter was an effort by Bishop Lee to make sure that those making these very serious decisions had a complete understanding of the canonical and legal picture of what the consequences might be,” said Patrick Getlein, secretary of the diocese. “We have heard that the rank and file has been told that this is nothing more than taking a vote and changing the name on the sign out front. The Presiding Bishop is weighing seriously what steps she might take in retaining real and personal property.”Then there is this (which also appeared in The Living Church):
In friend of the court filings in other diocesan property disputes, the Presiding Bishop’s chancellor has successfully argued that under the so-called Dennis Canon of the General Convention, all property is held in trust for the diocese and the national church. That theory was rejected again on appeal Dec. 7 by a California judge who dismissed claims against three congregations that voted to withdraw in 2004 from the Diocese of Los Angeles. Instead of deferring to internal church bylaws, California and a handful of other states apply neutral principles of law in property disputes. The senior wardens at the two parishes responded in a joint letter the following day to Bishop Lee, noting that Virginia law does not recognize express or implied trust claims in favor of the denomination in the event of a split.
“Given this plain rule of law, it is our position that the Diocese does not have a valid claim to ownership of our property under a theory of express or implied trust,” the letter stated. “Any attempt by the Episcopal Church or the Diocese to interfere with our interests, including any further attempt to interfere with our discernment process or our congregational vote, will be met with the strongest possible response, including legal defense.”
Clergy and dioceses certainly appear to be bound by this rule, the plain meaning of which is that the Episcopal Church owns all church assets. Civil courts, which might be enlisted to enforce canonical arrangements, have consistently favored property rights of superior governing bodies over those of individual congregations in hierarchically organized churches such as ours, even in the absence of provisions as explicit as the Dennis canon. [2006 example]
The American Anglican Council and its allies have asserted that General Convention actions violated the preamble of the Church’s constitution, thereby justifying extralegal responses, possibly including the departure of intact parishes from a wayward church. Not surprisingly, the constitution does not allow a bishop, diocese, priest, or vestry to second-guess decisions of General Convention. Some have argued that it is “defective” for not establishing a “supreme court” to adjudicate constitutionality, but this failure cannot justify the unilateral assumption of judicial powers by individuals or groups.