Illinois Supreme Court denies TEC Petition

I have just learned that, with its denial of petition for certiorari, the Illinois Supreme Court has declared Diocese of Quincy vs. The Episcopal Church et al (2013) to be the law in the state of Illinois. A precedent for diocesan disaffiliation now exists in a state previously presumed to favor deference to the hierarchical argument. Interesting times!

Update: November 27

The following are revealing extracts from the Illinois Supreme Court ruling. The reference to the telling "concession" regarding the national church's lack of involvement in diocesan assets in ¶ 50 is revealing about how the courts adjudicate this sort of dispute. While at this remove I am a somewhat hazy as to what I actually said, my point in ¶ 54 was that the legislative history and the language of the Dennis Canon have nothing to say about dioceses. No one arguing the national church position has yet introduced testimony that the implications of the Dennis Canon for diocesan property were discussed at the time of its enactment (Walter Dennis died in 2003 and - apparently - left nothing to indicate what he - as drafter of the canon - intended). Given that most of Dr. Mullin's affidavits have been filled with references to canons mandating dioceses to do something, if dioceses were to be governed by the Dennis Canon surely it would have said so?            

¶ 39 Contrary to the Church’s position, this is not a “documents only” case. In addition to reviewing numerous exhibits, the trial court heard an extensive amount of conflicting testimony and argument from the parties and made factual findings therefrom. Although determining whether to apply a deference or neutral-principles approach may, on its face, appear to be strictly a question of law, the court had to weigh the evidence presented in doing so. As the trier of fact, the trial judge was in a superior position to judge the credibility of the witnesses and determine the weight to be given to their testimony. Buckner v. Causey, 311 Ill. App. 3d 139, 144, 724 N.E.2d 95, 100 (1999). When contradictory testimony that could support conflicting conclusions is given at a bench trial, an appellate court will not disturb the trial court’s factual findings based on that testimony unless a contrary finding is clearly apparent. Buckner, 311 Ill. App. 3d at 144, 724 N.E.2d at 100.

¶ 50 The property in question in this case consists of the funds in the National City account and, although not emphasized by the Church on appeal, a deed to a piece of real property referred to by the Diocese as the “Diocesan House.” The deed has been included in the record on appeal. It is undisputed the Church is not a party to the deed. Instead, the deed reflects title to the property is held by the Trustees. The language of the deed does not provide for an express trust in favor of the Church. The “Discretionary Agency Agreement,” which is the contract between the Trustees and National City, is also contained in the record on appeal. Like the deed, it is undisputed the Church is not a party to that agreement. A review of the agreement does not indicate otherwise. It is also undisputed the Church has never had any involvement with the account, i.e., it never made any deposits or withdrawals, never authorized distributions, and never exercised any type of control over the account at all. In fact, in its brief on appeal before this court, the Church clearly states it “has never asserted that it owns those funds or any of the Diocese’s assets, but rather has consistently asserted that they belong in the hands of the Episcopalians who are the proper leaders of the Diocese.” This is no small concession.

¶ 51 The Church also fails to cite any relevant legal authority to support the removal and substitution of the diocesan corporations’ directors. Instead, it emphasizes the provisions of the Religious Corporation Act (805 ILCS 110/0.01 to 51 (West 2012)), which imposes certain requirements on the incorporating body with regard to trustee membership. See, e.g., 805 ILCS 110/46d (West 2012) (a trustee may be removed from office for, inter alia, abandonment of the denomination). However, it is undisputed the diocesan corporations were not organized under the Religious Corporation Act. Thus, its requirements have no application here.

¶ 52 Moreover, Dr. Mullin, the Church’s own witness, testified he knew of nothing to prevent a diocese from incorporating. Indeed, the Church does not argue the Diocese could not incorporate or was required to do so under the Religious Corporation Act. See 805 ILCS 110/35 (West 2012) (organizations formed for the purpose of religious worship may become incorporated under the Religious Corporation Act). In fact, religious organizations in Illinois may incorporate under either the Religious Corporation Act or the General Not For Profit Corporation Act of 1986 (Not-for-Profit Act) (805 ILCS 105/103.05(a)(8) (West 2012)). While the Not-for-Profit Act provides for the removal of corporate directors, the Church did not attempt any such removal under that act. See 805 ILCS 105/108.35 (West 2012); People ex rel. Muhammad v. Muhammad-Rahmah, 289 Ill. App. 3d 740, 742-43, 682 N.E.2d 336, 338 (1997). (In fairness, it likely lacked any authority or standing with which to do so as it is not a member of either the Trustees or Diocese of Quincy corporations.)

¶ 53 The trial court also found the evidence did not demonstrate the funds were held by National City in trust for the Church. The neutral-principles approach can involve examination of religious documents such as a church constitution for language of a trust in favor of the central church. Jones, 443 U.S. at 604; Maryland & Virginia Eldership of the Churches of God, 396 U.S. at 368 (Brennan, J., concurring, joined by Douglas and Marshall, JJ.). Under a neutral-principles analysis: “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.” Jones, 443 U.S. at 606.

¶ 54 An examination of the evidence reveals nothing to demonstrate an express trust, an implied trust, or any other interest vested in the Church. As stated, neither the deed nor the Discretionary Agency Agreement provides for an express trust in favor of the Church. Further, our review of the Diocese’s constitution and canons does not suggest diocesan assets were ever impliedly held in trust for the Church. After Jones, the Church adopted a trust canon (Title I.7.4, referred to by the parties as the Dennis Canon). That canon provides parish property is held in trust for the Diocese and Church and restricts a parish’s ability to dispose of its property. However, it appears undisputed the Church’s canons do not contain similar language with respect to diocesan property being held in favor of the Church. In addition, Bonner testified the Dennis Canon does not apply to property owned by a diocese. Our review of the record reveals nothing to suggest the opposite conclusion. Accordingly, the trial court’s findings in this regard are not against the manifest weight of the evidence.

¶ 55 In sum, the evidence presented demonstrates title to the funds and real property lies with the Diocese. Following our review of the record, we cannot say the trial court’s findings were arbitrary, unreasonable, or not otherwise based on the evidence. Nor can we say the opposite conclusion is clearly apparent in this case. As a result, the court did not err in finding in favor of the Diocese. We commend the trial court for its detailed order, which we found quite helpful in reviewing this matter.

The New Anglicanism

The best most fruitful incoming parishioners in my neck of the woods have been evangelicals coming to Anglicanism (at least Good Shepherd’s brand of it) for the expositional teaching wedded to liturgical worship (a unique niche I think). I’ve found that many coming in from TEC are looking for a church like the one they grew up…ie. TEC sans “the gays”. And they tend to be angry that “their church” was stolen from them (not seeing how that theft was in part due to complacency and docility in the laity). That - back to the past - ethos is not what Good Shepherd is about and so many of them are disappointed when they find that we expect people to serve, to belong to a small group, to open their bibles during sermons etc. I’ve had more internal strife arising from these folks than from any other.

This comment by the rector of one former Episcopal parish in upstate New York speaks to the issue of an emerging Anglican identity that interests me as a scholar. It reflects the increased emphasis on active discipleship that tends to characterize successful congregations in a post-Christian society. It might also be said to bear comparison with the 19th century Anglo Catholic tendency to eschew the identification of the Anglican tradition with anything other than the practices of the Primitive Church.

Reading this (admittedly off-the-cuff) comment, however, I can't help wondering what it means for the next phase of Anglican development. Granted the ultimate division (in practice, if not in theory) of the Anglican Communion into two provincial federations, will that portion that seeks to resist the pressure to conform historic Christian teaching to the secular culture of the Global North ultimately retain anything that was historically considered distinctively Anglican about it? For many of those who ultimately abandoned Anglicanism across four centuries, of course, it was the precisely the desire to reconcile the irreconcilable that was at the root of their unease. Today's self- identified Anglicans appear to have solved that problem, but I wonder if there won't be an accompanying cost.

Quincy Appeal Affirms Lower Court Decision

The Fourth District of the Illinois Appellate Court has just upheld Judge Ortbal's ruling in The Diocese of Quincy vs. The Episcopal Church. In their ruling, the justices commend the lower court for its "detailed order," and express concurrence with the view that the Dennis Canon may impose restrictions on a Parish's ability to dispose of its property but impose no comparable restriction on the freedom of a Diocese. "A review of the evidence presented in this case, including testimony from Dr. Mullin, the Church's own witness, does not clearly demonstrate the existence of a hierarchical relationship between the Diocese and the Church," declares the court. "Indeed, the Church's authority is not readily ascertainable without an impermissible investigation into matters of polity." (Para. 48)

¶ 19 During the three-week trial that followed, 11 witnesses testified. We will recount only what is necessary to resolve the issues raised on appeal.

¶ 20 Dr. Robert Bruce Mullin testified for the Church as an expert regarding its structure and history. Mullin opined the Church was hierarchical. When asked the basis for his opinion, Mullin responded, "Because it is self-evident from evidence itself, you know, that all you have to do is look at the structure of the Episcopal Church and history of the Episcopal Church and it is a hierarchical church. No one is going to question the Episcopal Church is hierarchical before 2008." Mullin then testified in detail regarding the history of the Church.

¶ 21 However, on cross-examination, Mullin agreed his opinion the Church is hierarchical is not expressed in the Church's constitution. He also agreed neither the Church's constitution nor its canons specifically reference a three-tiered form of governance. Mullin further agreed the Church's constitution and canons do not prevent a diocese from withdrawing from the Church. Mullin was unaware of any attempt under Illinois law to remove the members of the Trustees from their offices. While Mullin testified the members of the Diocese forfeited their offices by leaving the Church, he could not point to the "magic moment" when they did so. He also agreed the Church cannot compel a diocese to contribute any money. Instead, the Church suggests what should be contributed. Historically, the lack of support from the dioceses has been a "frequent problem." Mullin also admitted the Church's constitution and canons do not provide for the discipline of a diocese.

¶ 22 Dr. Jeremy Bonner, a specialist in Church history, testified for the Diocese. According to Bonner's testimony, the Church is "an extremely decentralized association" of state churches or dioceses. The Church's constitution lacks a supremacy clause and a mechanism to enforce its canons or legislation against a diocese. According to Bonner, the most striking characteristic of the Church is its lack of any supreme judiciary. During his testimony, the following colloquy took place:

"Q. In your opinion, can a religious organization which lacks a constitutionally established executive and judicial function which has no language of supremacy in its constitution function as an hierarchical church?

A. I do not see how.

Q. How can [the Church] then enforce its canons against a member diocese?

A. It can't. It can express its displeasure and can exert moral outrage and attempt to persuade its dioceses of the need to change, but recent disputes have shown the limitations of that strategy."

¶ 23 Bonner also testified he was unaware of any canon that purports to give the Church authority to assert control over a diocese's property. He explained while the so-called "Dennis Canon" (Title I.7.4) purports to declare a trust in parish property to restrict a parish's ability to dispose of it, that canon does not apply to property owned by a diocese.   

Wrapping It Up: South Carolina Trial, July 24, 2014

They say one is known by the company one keeps, in this case the Bishop of South Carolina to my right and the Henry R. Luce Professor of the Civil War Era in the "pew" directly behind me. Perhaps notoriety is preferable to obscurity, after all.

Whenever one is spared an ordeal, initial relief is soon succeeded by a measure of regret that one has been unable to make public the fruits of one’s research. After two weeks in Charleston and five days sitting in the St. George courthouse, the news that I was not to take the stand was hardly a surprise, however, after this morning’s bravura performance by Gettysburg College's Allen Guelzo, who delivered one of the most lucid pieces of witness testimony of the whole trial.

Beginning with the review of an eighteenth century Act of Parliament acknowledging the Moravians as a “Protestant Episcopal” church, Diocese of South Carolina attorney Alan Runyan pressed on to explore the autonomous character of the state associations of colonial churches that existed after the American Revolution, discussed the notion of subsidiarity as expressed in William White’s initial proposals for the organization of a national church, and examined the nature of diocesan independence as experienced by South Carolina Episcopalians between 1861 and 1865. In passing, the court heard the public reading of various extracts from Powel Dawley’s The Episcopal Church and Its Work, published in 1955 as part of the Church’s Teaching Series (and which Bishop Mark Lawrence used while training to be a lay reader in The Episcopal Church in the 1970s), many of which are noteworthy for their lamentation about the decentralized character of the national church, almost forty years after the establishment of the National Council (later the Executive Council).

Both Mary Kostel and David Booth Beers did their best with a witness for whom they were unprepared (this is permitted under South Carolina law, as Guelzo was introduced for the purpose of rebuttal of their earlier argument pertaining to the manner in which the national church exercised control over dioceses and states). Kostel focused on the writings of nineteenth century commentators that have been at the center of my counterpart Robert Bruce Mullin’s arguments, but Guelzo fought back, in the process eliciting from the judge the revelation that state law requires that an expert witness have the freedom to offer a critique of a proffered document if he declines to accept it as “learned treatise” (something which came as news to a number of the South Carolina attorneys present for the independent Diocese). Freed from a simple acknowledgment of the statements presented, Guelzo happily explained how most of the advocates of national church hierarchy in the nineteenth century were ritualist partisans and certainly enjoyed no authority from the General Convention to say what they said. Asked for a counter argument from the same era, he proffered Calvin Colton’s Genius and Mission of the Protestant Episcopal Church in the United States (1853), a source of which, I must confess, I was unaware, but which I’ve no doubt fits the bill. The point at issue is that any notion of a churchwide consensus on polity is simply unsustainable. There followed a fruitless set of exchanges between Guelzo and David Beers in which the latter was in fairly short order outmaneuvered, when he attempted to switch the focus to twentieth century canon law, of which Guelzo did not profess to be an expert.

So the final historical verdict on the Diocese of South Carolina is delivered by the premier historian of the Reformed Episcopal Church, who after serving for many years as an REC priest was received into the then Episcopal Diocese of Quincy in 2000 and now assists in the Diocese of Pennsylvania, whose Provisional Bishop, Clifton Daniel, gave testimony on behalf of the national church earlier in these proceedings!

It’s been an interesting four years from July 2010, when I began to assist the Diocese of Quincy, until today. I’ve got to meet some interesting people and developed a fondness for a number of lawyers, while still rendering up thanks that I’m not part of the legal profession. For all that, I hope this whole process will prove to have been worth it. I have no doubts about the history, for the record is clear, but whether the lawsuits may ultimately have served to distract the Church from what is meant to be its focus is another matter entirely.

Stand Up Guards: An Anniversary

Today is Waterloo Day, one year short of the bicentennial.

It would also have been my father's eighty-eighth birthday. 

I miss him.

Looking Backward

A Nicene Prohibition forbade a Bishop to exercise his authoritative episcopal functions within the limits of the Diocese of another Bishop . . . [but intervention may be justified] by the Historic Episcopate, wherever existing, unscriptural terms of communion doctrine are exacted, departures from primitive catholic doctrine which are unauthorized and unsound are inculcated, unhistoric domination of an alien episcopal authority is imposed, and unwholesome and immoral practices in the discipline of daily life are permitted and encouraged. If believing souls call aloud for relief from such encompassing error and wrong, then the entering-in for help would seem to be rather a rightful catholic protection of oppressed orthodoxy, than an uncatholic intrusion into a prohibited cure.   

Another polemical outburst from a representative of schismatic Anglican conservatism?

Well, no, it's actually the pronouncement of the Joint Committee on the Increased Responsibilities of the Church of the General Convention of The Episcopal Church in 1898, regarding the extension of episcopal oversight to the new American jurisdictions of Cuba and Puerto Rico. How times change!          

Hensley Henson on the Consequences of War

As part of my duties as Ramsey Fellow, I am assisting Durham Cathedral in their preparations to observe the centenary of the First World War. Prominent among the primary sources available to us are the diaries of that renowned ecclesiastic Hensley Henson, who in 1914 was Dean of Durham Cathedral. The entries for the war years are by turns, amusing, sobering and touching. What follows (with the kind permission of the Dean and Chapter) is a portion of the entry for August 27, 1914:

What effect has war on Religion? I suspect that the effect is almost universally bad. There is no time for thinking, a vast stimulus is given to feeling. While the intellect is barren the emotions run riot. In an atmosphere of morbid sensationalism every superstition grows rankly. Death and the fear of death lie like a pall on the intelligence and paralyse the conscience. Every form of teaching and devotion which seems to illumine or affect the shadowed existence beyond the grave appeals to the bereaved, and a fat soil is prepared in which charlatanry can flourish. The prophecy-fanaticks secure a hearing & every type of wonder worker can count on a market. Besides, there is wide-spread and serious confusion of morals. War itself is hard to place in the scheme of Christian morality & patriotism is a creed which covers many sophistries. The sacred apologists of War with the New Testament as their text-book cannot be said to be an impressive company. Their embarrassment extends itself from the pulpits to the pews & everybody worships with a troubled conscience. Moreover, the daily reports of fighting & every form of violent atrocity are nowise wholesome feeling for the human spirit, which they inflame and distort.

Henson, it should be noted, was no pacifist. He willingly spoke at recruiting drives throughout County Durham and frequently preached to soldiers of the Durham Light Infantry, but it is evident that he had little time for the clerical jingoism of the early months of the War. He presciently foresaw the implications of the carnage of the Somme and Passchendaele on public opinion twenty years later, when he stood out as one of the few Church of England bishops actively opposed to Appeasement.         

Remembering Tiananmen Square, June 1989

Twenty-five years ago, beginning on the night of June 3, 1989, units of the People's Liberation Army (PLA) entered Beijing's Tiananmen Square to bring to an end six weeks of protests that had witnessed over a million students and workers demanding reforms that raised the possibility of an end to one-party rule and the advent of democracy in China. At the time observers speculated as to whether the PLA would side with the protesters or the government, but the lack of response from the countryside served to make clear that for many Chinese the prospect of widespread civil disorder only twenty years after the Cultural Revolution was not welcome.    

Post-Tiananmen China has become a global superpower with armed forces that are increasingly able to assert Chinese influence across South-East Asia. A hundred years ago, Theodore Roosevelt predicted a "Pacific Century" in which the United States would be the global superpower; today it seems that the twenty-first century will also be a Pacific Century.  Yet just as Vladimir Putin looks back to Peter the Great and the Romanovs for his inspiration, so the Chinese Communist Party seeks to emulate the expansionism of the Ming and the Qing dynasties, without succumbing to the Western "vice" of democracy. Will it succeed? It was hard in June 1989 to anticipate that only six months later the Berlin Wall would have fallen and the Soviet Union be in an advanced state of disintegration yet so it proved. While nationalism has proved an appealing theme for the Party to promote in recent years, the Manchus remain a potent example of how revolutions devour their own children. Twelve years after the Boxer Rebellion, the last emperor abdicated.

No one can know the consequences of democratization in China, either in 1989 or 2014, and yet, as Churchill remarked, though it may be a bad system it is better than the alternatives. We can nevertheless salute the idealists of Tiananmen Square, those who died and those who still live, for their refusal to accept the status quo. One day, God willing, they will have their memorial in the country for whose future they strove.                     

The Goddess of Democracy

Congratulations to Christopher Gildemeister

Yesterday, one my closest American friends, Christopher Gildemeister, received his long overdue PhD from our alma mater, The Catholic University of America, with a dissertation entitled An Analysis of the Portrayal of Catholicism on Prime-Time Network Entertainment Television, 1950-1980. It was dearly earned, but few people I know deserve more to bear the appellation Doctor of Philosophy.    

The New Man: C. S. Lewis and Posthumanism

A thought-provoking paper delivered to the Anglican Studies Seminar on February 25 by Professor Robert Song.