stayin' Anglican

The Pre-Dennis Property Canons: Did they already provide for a trust, which the Dennis canon merely codified?

We pick up here with the question that concluded the entry immediately below – whether in 1979 the Dennis canon did, or purported to do, something new.  In particular, did it purport to create a trust relationship where none previously existed, or was it simply declaratory of a legal state of affairs that already existed.  To answer the question history must be considered.  The starting point for the inquiry from history is that the original 1789 Constitution and Canons of the Episcopal Church said nothing about property. The national church owned no real property and had no entity capable of holding title to property.  Indeed it would not have such an entity until the incorporation of the Domestic and Foreign Missionary Society in the middle of the following century.  Nor can the explanation be that it was simply assumed that the Episcopal Church would have ultimate control over the property interests of congregations or that there were non-canonical requirements of general applicability operating so as to give the Episcopal Church an interest in parish property.  To take an example, in 1787 King’s Chapel in Boston left the Episcopal Church, taking its property with it, and became Unitarian.  A recent book on church property law summarizes the situation in the early years as follows:

Neither [the 1789] General Convention nor any diocese owned any property or laid claim to any property of any parish in these formative years, nor was there any effort to regulate parish property. Parish property was a matter of local control completely unfettered by the diocese or the ECUSA. As far as real property was concerned, the ECUSA was purely congregational, except that the elected vestry of the congregation rather than the parish congregational meeting was in control of the real estate of the parish.

Beginning in 1789, the General Convention met every three years, but it did and said nothing with respect to church property for almost a century. It is clear from the historical record that the Episcopal Church—be it the diocese, or the General Convention, or the bishops—exercised virtually no control over parish property until after the American Civil War.

Raymond J. Dague and R. Wicks Stephens II, Considerations Specific to Episcopalians, in A Guide to Church Property Law: Theological, Constitutional and Practical Considerations, 125 (Lloyd J. Lunceford, gen. ed. 2006).

If, therefore, the Dennis Canon was declaratory of a state of affairs already in existence, that preexisting state cannot have dated back to the formative years of the Episcopal Church.  It must have come into being at a later time. When might that have been?  We now consider the development of the canons having to do with property after 1789 and seek to identify a time before 1979 when the canons could be said to create a trust interest in parish property with TEC and the applicable diocese the beneficiaries. [1]

In 1868, the first national canon relating to property was adopted in the form of then Canon I.21, which corresponds to current Canon II.6. The 1868 canon required that before a church or chapel could be consecrated, it had to be paid for and free of liens. It also required that a consecrated church or chapel could not be alienated or encumbered, or taken down or deconsecrated, without the consent of the Bishop and the Standing Committee. The 1868 canonical revisions do not speak of creating a trust relationship and there is nothing in them that would have satisfied the requirements for creating a trust.

Additional canonical revisions were enacted at the next General Convention, in 1871. The background, according to the Annotated Constitution and Canons, was “the secession of Christ Church Chicago, who, taking the parish property with them, affiliated themselves with the Reformed Episcopal Church.”  The retention of the property by the departing congregation was upheld by the court in the Cheney case.  In light of the secession, the General Convention amended then Canon I.21.1 to add a requirement that in order for a church or chapel to be consecrated, the Bishop must be satisfied that the building and ground “are secured by the terms of the devise, or deed, or subscription by which they are given, from the danger of alienation from those who profess the doctrine, discipline, and worship of the Protestant Episcopal Church in the United States of America,” with certain exceptions.  Put aside the questions of what the language in the deed or other documents would say.  Put aside also that the canon did not apply to property already consecrated.  At a minimum, the 1871 revision demonstrates that there were not theretofore in place provisions in the canons of ECUSA that were effective in keeping property from being alienated, and that General Convention attempted to do at least something to address that situation.  But still there was no requirement for creating a trust.

The question remains, moreover, what the 1871 revision accomplished toward the expressed end.  Of primary significance is that the new provision was not self-executing.  Its effect depended on what the bishop was able to do, and in fact did, to assure himself that property was “secured from the danger of alienation.”  Obviously, what, if anything, bishops in fact did differed among the dioceses.  Moreover, since the kind of alienation to be prevented was to be determined at least in part on the basis of doctrinal matters, questions arise as to the enforceability of the restrictions envisioned, even if otherwise cast in a legally effective form.

In 1904 a change was made to the section prohibiting alienation or encumbrance of consecrated churches and chapels (now Canon II.6.2) that had the effect of emphasizing that ownership remained with the parish or congregation.  Prior to the change, the canon prohibited vestries, trustees or others authorized to hold property from encumbering or alienating churches or chapels without the prior consent of the bishop acting with the advice and consent of the standing committee.  The change added the words “belonging to the Parish or Congregation with they represent” after the reference to churches or chapels.  Thus the section imposing the restrictions on alienation was made also to contain an explicit indication of where ownership remained, with no suggestion of a trust relationship.  It is hard to conceive that the drafters of the 1904 amendment would have produced a section dealing with both where ownership resides and with restrictions on transfer without also at least mentioning a trust relationship if one were thought to exist.

In 1940 a section was added to the canon on parish vestries in order to prohibit the encumbrance or alienation of the real property of any parish, mission, congregation or institution without the consent of the bishop and standing committee, except as permitted by diocesan regulation. This section was transferred in 1943 to Canon 6, Section 3 and now exists as Canon I.7.3.  It is similar to the canon already discussed that prohibited alienation of a consecrated church or chapel without consent, but extends coverage to real property other than that on which consecrated churches or chapels are erected and also covers property held by institutions, in addition to parishes and missions.  Notably, in the 1954 edition of the Annotated Constitution and Canons, Dr. Jackson A. Dykman wrote concerning this section, “The power of the General Convention over the disposition of real property is questionable, governed as it is by the law of the state in which it is situated. . . . The law will differ in different jurisdictions and each case which arises must be decided according to the law of the situs of the property.” Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America (Seabury Press, 1954), pp. 265-266.

The canon requiring the bishop to satisfy himself that property was secured from alienation prior to consecrating a church or chapel was repealed at the General Convention of 1973.  At the General Convention of 1979, the committee proposing adoption of the Dennis canon also proposed language to replace what had been deleted in 1973.  However, the replacement language is weaker than the previously removed language. First, the original 1871 language had required that the bishop be assured that ownership was secured from the danger of certain categories of alienation, as discussed above.  The 1979 replacement language did not address alienation but required only that the consecrating Bishop be “sufficiently satisfied that the building and ground . . . are secured for ownership and use by a Parish, Mission, Congregation, or Institution affiliated with this Church and subject to its Constitution and Canons.”

What can be seen from this history is that the pre-Dennis canons dealing with property did not even purport to create a trust interest in parish property.  In saying that the Dennis canon merely confirmed a legal state of affairs that already existed, "815" is making the truly remarkable assertion that a series of canons dealing with matters having discrete and independent legal significance somehow, taken together, combine to create a trust relationship not created or implied by any one of the canons individually. The only situation in which any of the pre-Dennis canons could be specifically related to a trust interest would be the following:  If, pursuant to Canon II.6.1, prior to its 1973 repeal, a bishop had concluded that the way to assure himself that parish property was “secured from the danger of alienation” was to require that the parishes who owned the property sign a legally effective declaration of trust to the effect that they held the property in trust for TEC and the diocese, and if in fact a parish agreed and took the necessary steps to create such a trust, then the trust relationship could in some sense be said to relate to the requirements of Canon II.6.1.  But in that case the trust relationship would not have arisen from the operation of the canon itself (or from some generalized view of TEC’s polity not embodied in any legally cognizable form), but from specific consensual action taken in accordance with generally applicable principles of trust law.

Nonetheless, some courts have been persuaded that TEC’s position that the Dennis canon merely confirmed what already existed is correct. To see this, consider two cases. First, in Bishop and Diocese of Colorado v. Mote, 716 P.2d 85, 90 (Colo. 1986) cert. denied, 479 U.S. 826 (1986), the Colorado Supreme Court said that it “agree[d] with the plaintiffs that the 1979 amendment did nothing but confirm the relationships existing among PECUSA, the diocese and the parish. . . .” 716 P.2d at 105.  The court based its conclusion that a trust existed not only on TEC’s canons, but also on diocesan canons and the parish’s articles of incorporation and bylaws.  The TEC canons it considered relevant were (as presently numbered) Canon I.7.3 prohibiting encumbrance or alienation, Canon I.7.1(h) requiring adequate insurance, and Canon II.6.3 prohibiting the removal, taking down or deconsecration of a consecrated church or chapel without the consent of the bishop and standing committee. The diocesan canons it considered relevant required parishes to accede to the constitution and canons of TEC and the diocese, prohibited parishes from amending their articles without the consent of the bishop and the diocesan chancellor, required consents in order to alienate or encumber property, provided that upon dissolution of a parish its property would vest in a diocesan corporation, provided that the Priest in Charge or (in the absence of one) the Bishop would have control over the use of church property, and gave the diocesan executive council authority to direct the carrying out of the programs and policies of the diocese.  The provisions of the parish’s articles and bylaws the court viewed as relevant were the purpose clause and restrictions on alienation in the articles and accession clauses in the articles and bylaws. None of these provisions, however, creates a trust relationship.  Restrictions on use and alienation have been mentioned above.  Purpose clauses and dissolution provisions in corporate charters of nonprofit entities are well understood and neither creates a beneficial interest in property.  Accession clauses will be covered in more detail in a later posting but suffice it to say an accession clause does not create a property interest.  Likewise, a restriction on the ability to amend a corporation’s articles may in some circumstances be effective to “lock in” provisions in those articles, but it too does nothing to create a property interest.

The court in Mote states that “this court should analyze legal issues that arise out of church organizations in the same manner as we would analyze those issues if they arose out of any other corporation or voluntary association.” 716 P.2d at 99. It also says, “[c]lear, explicit, definite, unequivocal and unambiguous language or conduct” establishing the intent to create a trust is required in order for one to be created.  Id., at 100. But the court did not observe these principles in concluding that a trust existed on the basis of the facts before it. What courts are doing in cases like Mote is described by Professor Patty Gerstenblith in an article in American University Law Review:

These courts, while employing the language of neutral principles and examining church documents and state statutes, 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. As indicated earlier, this doctrine of implied trust does not fit within the definitions found in other areas of trust law.

Patty Gerstenblith, Civil Court Resolution of Property Disputes among Religious Organizations, 39 Am .U. L. Rev 513, 558 (1990) [footnotes omitted].

The second illustrative case is Rector, Wardens and Vestrymen of Trinity-St. Michael’s Parish, Inc. v. The Episcopal Church in the Diocese of Connecticut, 620 A.2d 1280 (Conn. 1993).  This case, like Mote, was based on facts that arose before passage of the Dennis canon but was decided after passage.  The Supreme Court of Connecticut wrote, “The evidence at trial overwhelmingly established that the Dennis Canon adopted in 1979 merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses.” 620 A.2d at 1292.  It being undisputed that there was no express trust, the court began with the premise that in determining whether there is an “implicit trust,” it “must examine the polity of the church, in addition to the church constitution and its canons, for language of trust in favor of the general church” (citing New York Annual Conference of the United Methodist Church v. Fisher, 438 A.2d 62 (Conn. 1980)).  Id., at 1284. In looking for “language of trust,” the Connecticut Supreme Court located it not in the canons it examined (which, as in Mote, included accession clauses, restrictions on alienation and encumbrance of property and other things), but in the words of three Episcopal clergymen and one layman and chancellor who testified at trial. The court’s opinion said of the testimony of Long Island Bishop Orris Walker:

Walker testified that, prior to the 1979 enactment of the Dennis Canon, the polity of PECUSA embraced the concept of a trust by implication because of the acceptance by a parish of the doctrine of the church and its stewardship over parochial property beginning with the formation of the parish.  Moreover, he testified that the polity of PECUSA was exemplified in the understanding between a diocese and a parish that parochial property -- both real and personal -- is held "in trust for the use of the ministry and mission of the Protestant Episcopal Church."

620 A.2d at 1286

Further,

Walker then added that title 1, canon 7, § 3 of the canons of the Episcopal Church, which prohibits the encumbrance or the alienation of parochial real property without the written consent of the Bishop and the Standing Committee of the Diocese, expresses "the same thing but in different words. It expresses the Polity of the Church and how we have operated down through the years," specifically as regards the holding of the parochial property.

620 A.2d at 1287.

Bishop Arthur Walmsley testified to the same effect that

the Diocese interpreted what had already been contained in title 1, canon 7, § 3, which the Diocese had enacted in 1956 as Diocesan Canon VIII, § 3, to cover the same subject matter as the Dennis Canon.

Id. [footnote omitted].

Former New York Appellate Judge Hugh Jones testified as an expert witness. His credentials included having been chancellor in the Central New York Diocese and Chancellor to the Presiding Bishop. The Court said the following of Mr. Jones’ testimony:

He viewed the Dennis Canon as itself recognizing a preexisting trust on parochial property in favor of PECUSA.  He testified that this was not a new concept and that no one had ever "questioned the existence of the legal relationship which is reflected in that canon as preexisting the adoption of the canon. . . . [I]t states in my opinion exactly what the relationship was before the canon was introduced" and it dates "all the way back to 1789 when the Protestant Church was formed in this country. That has been the nature of the covenant relationship between the parishes and the National Church and the dioceses."  Although Jones had great regard for the publication by Edwin White and Jackson Dykman, and viewed it as an authoritative work on canons of PECUSA, he disagreed very strenuously with the suggestion found on page 310 of that text that the Dennis Canon was not declaratory or that it introduced a new concept. Jones testified that he could think of no one who held that view at the time of its adoption.

620 A.2d at 1288 [footnote omitted].

Finally, the court’s summary indicated that the trial testimony of the Very Reverend James E. Annand, dean of the Berkeley Divinity School at Yale University, was to the effect

that there was no distinction in the church's hierarchical polity or in the allocation of ultimate authority to the bishop as to spiritual matters and temporal matters; that parochial property in the church is held solely for the larger, overall mission of the church; that, dating back to 1789, the historical understanding in PECUSA was that parochial property is held in trust for PECUSA and the Diocese; and that the express trust provided in the Dennis Canon by the General Convention of PECUSA in 1979 was merely declarative of existing understandings within the church.

Id.

Why the Supreme Court of Connecticut should have given credibility to the testimony, for example, of Bishop Walker to the effect that a trust, on the one hand, and a restriction on alienation, on the other, amount to "the same thing but in different words" or of Bishop Walker and Dean Annand that there existed trust relationships based on ill-defined "understandings" is hard to comprehend.  The court’s opinion acknowledged the objections of the defendants that the effect of the canons and other documents should have been evaluated without such "expert" testimony, but said this "issue" was raised too late.  Id., at 1286 n. 12.  One would think, however, that it should not have been necessary to persuade the state's highest court to evaluate a legal issue – whether a trust existed – through analysis of its own rather than defer to such an extent to clerical and lay witnesses from the Episcopal Church.

The phenomenon of courts purporting to utilize neutral principles of law while in fact weighting the outcome based on deference to religious hierarchy is well analyzed by Professor Gerstenblith in the article cited above.  One could ask what is the harm, since it is argued that courts are still free under Jones v. Wolf to apply a variety of methods in resolving church property disputes, including hierarchical deference.  I plan to discuss later where Supreme Court jurisprudence in this connection might be headed.  Without regard to that, it seems better for courts (and parties) to be candid about what they are doing (or arguing).

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[1]  For the history of the canons, our primary source is E. White & J. Dykman, Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America otherwise known as the Episcopal Church (1981).

 

The dual personality of the Dennis canon

As viewed by the hierarchy of The Episcopal Church, the Dennis canon seems to have a dual personality.  Canons I.7.4-I.7.5 read as follows:

Sec. 4. 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. 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.

Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.

On its face, the Dennis canon appears to have the attributes of what I will call the strong version.  There is nothing equivocal about it.  It states that the property of parishes and missions is held in trust for TEC and the Diocese.  The dioceses can confirm this if they wish, but it doesn't matter whether they do or not.  The trust exists and is valid.

As is evident from the immediately preceding blog entry, however, there are some problems with the strong version.  As a California court observed in 2004, “We know of no principle of trust law stating that a trust can be created by the declaration of a non-owner that the owner holds property as trustee for the non-owner.”  California-Nevada Annual Conference of United Methodist Church v. St. Luke’s United Methodist Church, 121 Cal. App. 4th 754 (2004).  For these reasons, those arguing the position of the national church have been insistent in maintaining that the Dennis Canon was merely declaratory, or a codification, of an already existing legal structure.  I will call the latter view the weak version of the canon.

Competition between the strong and weak versions of the Dennis canon can be illustrated by the following historical note.  The Episcopal Church has a quasi-official commentary on its legislative history entitled the Annotated Constitution and Canons (sometimes referred to as White & Dykman).  As revised in 1981 by the Standing Commission on Constitution and Canons, the Annotated Constitution and Canons said of the Dennis Canon that it was “considered by some to be declaratory of existing law.” The authoritative commentary offered no support for the position said to be held "by some."  The lack of support for the Dennis Canon as declaratory of existing law led a witness in a Connecticut church property case, former New York appellate judge and Chancellor (to the Presiding Bishop) Hugh Jones, to testify that although he viewed the commentary in the Annotated Constitution and Canons as an authoritative work, he “disagreed very strenuously with the suggestion . . . of that text that the Dennis Canon was not declaratory or that it introduced a new concept.”  Rector, Wardens and Vestrymen of Trinity-St. Michael’s Parish, Inc. v. The Episcopal Church in the Diocese of Connecticut, 620 A. 2d. 1280, 1288 (Conn. 1993).   What seems apparent is a tension between the historical perspective of the chroniclers of the legislative history, and the perspective of the Chancellor serving as witness who realizes how weak ECUSA’s position becomes if the Dennis canon doesn’t reflect existing law.

Some of the desire to advance the weak version can be attributed to the fact that some cases heard after adoption of the Dennis canon involved facts that occurred before passage.  (The Connecticut case just mentioned was such a case.) TEC wanted to deflect the argument that passage of the canon meant that there was no trust interest at the times relevant to the facts in the case.  Nonetheless the weak version continues to be deployed in cases with facts arising after adoption of the Dennis canon.

Who was right, then—Chancellor Hugh Jones who was sure that the Dennis Canon only reflected a state of affairs legally recognizable as already existing within ECUSA or the less enthusiastic authors of the material in the Annotated Constitution and Canons?  In the next post, I plan to examine some history that will shed light on this, including the evolution of the pre-Dennis property canons.

Did the U.S. Supreme Court invite passage of the Dennis canon?

To someone who hasn’t encountered the notion, the idea of an invitation to the Episcopal Church from the U.S. Supreme Court may seem silly. Consider, however, the following language from two briefs recently filed by TEC in pending property litigation:

The “Dennis Canon” was enacted in response to an invitation extended by the U.S. Supreme Court in Jones v. Wolf . . . . (Post-trial opening brief for The Episcopal Church and the Diocese of Virginia, In re Multi-Circuit Episcopal Church Litigation (December 21, 2007), at 44.)

Finally, in 1979, in response to Jones v. Wolf [ ], which invited hierarchical churches to adopt “express trust” provisions in their governing documents to ensure that, in the even of a dispute, local church property would remain with the denomination and its members, the Church adopted Canon I.7(4) . . . .  (The Episcopal Church’s Answer Brief on the Merits before the Supreme Court of California in Episcopal Church Cases (filed January 29, 2008))

That the Supreme Court invited passage of the Dennis canon has in fact been the 815 “party line” since the time of adoption, and corresponding positions are taken by the leadership of other denominations that introduced trust clauses around the same time.  I will speak later in this post about whether the Supreme Court is in the business of issuing invitations of the sort claimed to have been received by TEC.  Let us first, however, consider whether the Dennis canon complies with what the Supreme Court was describing.  Here’s the language from the opinion in Jones v. Wolf, 443 U.S. 595 (1979):

Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

443 U.S. at 606 [footnote omitted].

The first weakness in the TEC position is that a response that complied with what the Jones language suggests would have required action by “the parties” to a potential dispute, not unilateral action by one party only. That is, there would have to be consent to the amendment by the parish, as the other party to the dispute, not just the denominational hierarchy through General Convention.

Granted, the language to the effect that the constitution of the general church can be made to recite an express trust stands as a separate sentence and the use of the passive voice leaves the necessary actors unspecified within that sentence. But the language can be understood only if read in the context of the general concept embodied in the sentences that both precede it and follow it, which make clear that the action has to be by the parties (plural) to the dispute.

Second, to comply with what is suggested in Jones, the action taken would need to be “embodied in some legally cognizable form,” indicating that there must be not only consent by the parties that are to be bound but also compliance with other applicable legal requirements, such as the formal requirements under state law necessary for creation of a trust.

It is interesting to see how the brief filed at the end of January by the Diocese of Los Angeles in Episcopal Church Cases struggled with the problem of action by the parties versus unilateral action. The following language appears on page 47 of the brief:

Jones carefully explained that the neutral principles approach “cannot be said to ‘inhibit’ the free exercise of religion” precisely because the church can take steps, “[a]t any time before the dispute erupts,” to ensure “that the faction loyal to the hierarchical church will retain the church property.” (Jones, supra, 443 U.S.at 606).

As can be seen from comparing this with the language from Jones quoted above, the Diocese’s brief inserted between rearranged direct quotations a paraphrase that substituted "the church" for what in fairness to the text should have been rendered "the parties."

Now someone will say, and the Diocese does in a footnote on page 30 of the same brief, that St. James’ parish in Newport Beach effectively consented because they were represented at the General Convention where the Dennis canon was adopted. That argument doesn't seem to need much response.  It is sometimes argued that consent was given in advance to whatever the hierarchy might decide through the requirements for parishes to accede to the constitution and canons of the national church. That argument does not work either, for reasons I plan to cover in another post.

The third way in which the Dennis canon differs from what the Jones language suggests is in imposition of the trust rule by canon rather than a constitutional provision as specified in the Jones dictum. Of course this can be argued to be an unimportant distinction, but weighing in the other direction is the fact that constitutional amendments generally require passage on more than one reading, resulting in an opportunity for congregations dissatisfied with the change to take action in the interim.

Turn now to the question whether the Supreme Court issued an “invitation” to the Episcopal Church and other hierarchical denominations. The first point to be made is that the language cited as the "invitation" is dictum, not part of the precedential holding of the case. Remarkably, the Episcopal Church and the Diocese assert the opposite. Sometimes the dividing line between what is dictum and what is part of the holding is less than sharp. But here it is not. TEC endeavors to turn what is dictum into a qualification of the Jones holding, because otherwise its position won’t succeed.

The language from Jones that contains the supposed invitation is not part of the Court’s holding, but rather is part of the opinion’s answer to an argument made against the holding in the dissent authored by Justice Powell. The dissent maintained that a rule of compulsory deference to hierarchical church authority is necessary in order to protect free exercise rights. The opinion of the Court answers this first by saying that the neutral principles method doesn’t frustrate free-exercise rights “any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods.” The opinion then continues with the language quoted above in order to illustrate more specifically how the parties might ensure, before the dispute arises, that the faction loyal to the hierarchical church will retain the property. The question then becomes how to read the illustrations.

The first possibility (call it Reading No. 1) is that the court is simply giving illustrations that show that neutral principles don’t preclude the kind of private ordering, undertaken in advance, that would be recognized under neutral principles as resulting in the faction loyal to the denominational hierarchy retaining control of the property. Reading No. 1 is consistent with the requirement that the action be taken by “the parties.”

The second possibility (Reading No. 2) is the one TEC is advocating. Under Reading No. 2, if neutral principles don’t yield the result TEC wants – that a unilaterally imposed canon is effective to create a trust – there has to be an exception that will require courts to enforce that result nonetheless. This reading would have the Court, in the process of endorsing the application of neutral principles, create an exception which is itself inconsistent with neutral principles.

Under Reading No. 1, a hierarchical denomination could enact a constitutional rule requiring property to be held in trust and request congregations to consent to it in a legally effective way. For a congregation affiliating with the denomination after passage of the rule, obtaining the consent would be relatively straightforward (but would still require that the consent be “embodied in some legally cognizable form.”)  For a congregation already affiliated, things are more complicated because the congregation can’t be compelled to consent. Still, the denomination could include in the rule a provision requiring disaffiliation if a congregation declined to consent.

TEC appears to be concerned that it is disadvantaged by the retroactive application of the holding in Jones.  The argument would be that TEC has assumed that decisions of its General Convention would be accorded deference under a hierarchical approach and to allow a court to assess its decisions under neutral principles is therefore unfair. [i] But at least three things stand in the way of a retroactivity objection.

• First, Supreme Court decisions are retroactive as a matter of course. Decisions whether to make a result prospective and in what manner are things that a legislative body may do in making law, not things a court does in saying what the law is. There was a period in the 1960s and 1970s when the Supreme Court experimented with various forms of prospectivity, but the Court has now reverted to a firm rule of retroactive application. See, e.g., Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993); Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 Harv. J. L. & Pub. Policy 811 (2003). If States are constitutionally entitled to apply neutral principles of law in resolving church property disputes on the day Jones was decided, they were constitutionally entitled to do so the day before and they continue to be the day after.  Even though Jones was decided during the period when some of the Court's experimentation with prospectivity was still ongoing, there is nothing in the case that indicates that the Court even undertook the analysis that would have been required under the then-applicable precedents for a nonretroactive application (see Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971)), much less made any determination that nonretroactivity was appropriate.

• Second, Jones did not really introduce a change in anything upon which TEC had a reasonable basis for relying. Watson v. Jones, 80 U.S. 679 (1871), espousing the hierarchical deference approach, was decided not as a matter of federal constitutional law, but as a pre-Erie R. Co. v. Tompkins diversity case at a time before the First Amendment was held applicable to the States. Although subsequent cases, including among others Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710-11 (1976), said that some elements of Watson embodied First Amendment considerations, these were limited to avoidance of interfering in controversies over religious doctrine or practice or ecclesiatical polity. There is no statement that a requirement to follow a hierarchical deference approach was considered to be mandated by the U.S. Constitution in adjudicating property disputes that can be resolved without consideration of religious doctrine or practice or ecclesiastical polity.

• The equities are not in favor of TEC. When the Episcopal Church was organized in 1789, its constitution and canons contained no reference to property at all. Thereafter, some congregations did in fact leave with their property. Beginning in 1868 and from time to time thereafter the Episcopal Church enacted various canons imposing restrictions on use and alienation of property by congregations. But until passage of the Dennis canon, it never purported to acquire a trust interest in property and never sought consent from the owners to the imposition of such a trust interest. Why didn’t it? The answer seems clear. Many congregations wouldn’t have voluntarily granted such consent and if faced with the choice would have disaffiliated rather than do so. TEC’s method was to proceed incrementally and on a nonconsensual basis with canonical changes. Never having previously gotten to the point of enacting a canon that would assert the existence of a trust interest, TEC tried to turn the difficulty presented by Jones into an opportunity and enacted the Dennis canon.

I think the discussion above demonstrates why 815's usual argument doesn't rely solely on the Dennis canon being effective by its terms to create a trust. What they usually argue is that it somehow "codifies" or is "declaratory of" ECUSA canons and / or polity prior to adoption. I plan to say more about that in the next entry.

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[1]  The opinion of the intermediate California appellate court now being appealed to the California Supreme Court seems sympathetic to a retroactivity concern, saying, “The Jones majority also appears to have been aware of an obvious problem with the fact of a transition from a highest tribunal approach to neutral principles analysis: Neutral principles analysis makes a church property dispute issue turn on the quality of legal drafting done years prior to the dispute, and drafting done in a different legal environment.” Episcopal Church Cases, 61 Cal. Rptr. 3d 845, ___; 2007 Cal. App. LEXIS 1041, ___ (June 25, 2007), review granted, 67 Cal. Rptr. 3d 170, 169 P.3d 94, 2007 Cal. LEXIS 9660 (Cal. 2007).