By Robin G. Jordan
It is frequently claimed that the ACNA Constitution and Canons prohibit the ACNA or the diocese or grouping to which a local congregation belongs, from seizing the church property of that congregation through litigation. If a local congregation does not like the direction in which the ACNA or the diocese is moving, it can leave the ACNA or the diocese, taking its church property with it. Congregations choosing to leave the ACNA will not face the kind of property litigation that congregations leaving TEC have faced. It is also argued that the threat of congregations leaving keeps the ACNA and its dioceses from moving in a too radical direction and obviates the need for any particular safeguards.
The ACNA Constitution and Canons, however, contain two loopholes that do permit a diocese or grouping to take a local congregation to court over ownership of church property and to prevent it from taking that property with it if it leaves the diocese. The first loophole is found in Article XII of the ACNA Constitution. Article XII states:
“All church property, both real and personal, owned by each member congregation now and in the future is and shall be solely and exclusively owned by each member congregation and shall not be subject to any trust interest in favor of the Province or any other claim of ownership arising out of the canon law of this Province. Where property is held in a different manner by any diocese or grouping, such ownership shall be preserved.”
Note carefully what the last clause states. “Where property is held in a different manner by any diocese or grouping, such ownership shall be preserved.” This clause does not prevent a diocese from holding or taking church property into trust. Indeed it guarantees dioceses that have joined and may join the ACNA the right to continue to hold property in trust that they already hold in trust.
The second loophole is found in Canon I.6.6. The wording of this provision is identical to that of Article XII except for the addition of a new clause. What the clause does is amend the Constitution and its inclusion in the Canons is highly questionable. It is one of a number of examples where the Governance Task Force amended the Constitution by Canon although the Constitution makes no provision for its amendment in this manner. In its haste to ratify the Constitution and Canons the inaugural Provincial Assembly overlooked these violations of the Constitution. Canon I.6.6 states:
“All congregational property, real and personal, owned by a member congregation is and shall be solely and exclusively owned by the congregation and shall not be subject to any trust in favor of the Province or other claim of ownership arising out of the canon law of the Church; neither may any Diocese assert any such claim over the property of any of its congregations without the express written consent of the congregation. Where property is held in a different manner by any Diocese or grouping, such ownership shall be preserved.”
Under the provisions of the added clause a diocese or grouping to which a local congregation belongs is not actually prohibited from making a claim of ownership over church property of a local congregation. However, it must prove that the local congregation has at some point recognized that it has an interest in the property. For example, if the diocese loaned a local congregation the money to construct a new building, then it could require the local congregation to consent to its claim of part or full ownership of the property as condition of the loan. Litigation may be necessary to establish that the congregation is not encumbered by such a claim and has free title to the property.
The security that Article XII and Canon I.6.6 offer a local congregation in regards to the ownership of church property is a false one. Their provisions need amending or replacing. I wonder how many of the folks that rushed through the ratification of the Constitution and Canons would have done the same thing if they were buying a new house or a new car. I suspect that they would have wanted to examine the fine print in the contract and made sure that any needed changes were incorporated into the contract before they signed it.
The ACNA Constitution and Canons needed more work at the time they were ratified. There was talk of fixing them after their ratification So far it appears to have been just that—talk. Archbishop Bob Duncan’s comments about Article XII shortly before its ratification prompted laughter from the floor of the inaugural Provincial Assembly. The congregations in the ACNA did not realize it but the joke was on them.
12 comments:
I understand that Lutheran church property is held by the congregation. Not entirely clear what that means but it is probably spelled out in detail in each charter. I would imagine that there would be a trust with the vestry (or equivalent) as trustees and the congregation as beneficiaries. Either way the trust should be structured in such a way that the wishes of the grantors or trustors are preserved and not subject to later amendment without proper process. Fortunately the secular courts are there to deal with this issue. However, for a Christian group to fight over property seems utterly inconsistent with our Faith. Calvary started in a tent less than 40 years ago: the issue is our faith. Today we celebrated Hooker from "Lesser Feasts and Fasts". Hooker born shortly after the Elizabethan Settlement is known for his belief that out of the synthesis of and dialog between RCs and Calvinists, we can construct a better place to worship here on earth. Such scholarship is sadly lacking today.
Michael:
You said:
"Hooker born shortly after the Elizabethan Settlement is known for his belief that out of the synthesis of and dialog between RCs and Calvinists, we can construct a better place to worship here on earth. Such scholarship is sadly lacking today."
Of course, I suspect you meant a dialog between RC's and "some" Calvinists.
The majority of Elizathan clergy, Parker, Grindal, and Whitgift were "Calvinists."
It was Hooker who said Calvin was were 1000 Jeromes, Chrysostom, and _________. Forgot name of the last one, off hand.
edit..."was worth 1000..."
Mr. Jordan, I gather from the tone of your comments that you think that diocesan ownership of many parishes in ACNA is the result of a "loophole," but in truth it has to stay that way unless the diocese which presently owns a parish property deeds it over to an individual congregation by a specific conveyance. No purported action by a national church convention can suddenly transfer an ownership interest in these properties from one entity to another this is the folly the Dennis Canon purported to do more than 30 years ago, by which General Convention allegedly created some sort of "trust beneficiary" status for the national TEC despite the fact that GenCon didn't have any ownership interest in those properties). If the diocese owned the parish property the day before the ACNA Provincial Assemly it owns it still. If the parish owned it before, it owns it still. Simple enough to understand, right? The Const. and Canons of ACNA simply state the "national" church has no ownership interest in our churches.
The property ownership rights of Lutheran congregations vary with the Lutheran denomination to which they belong. I have studied the constitution and bylaws of a number of Lutheran denominations and only one of them--the Lutheran Church Wisconsin Synod or the Lutheran Brotherhood if my memory serves me--recognizes the congregation has exclusive right to the ownership of local church property and could dispose of it as it deemed fit. This particular Lutheran denomination was basically a confederation of independent autonomous congregations. The constitutions and bylaws of the other Lutheran denominations contain provisions that prevent a congregation that acquired property after joining the denomination from leaving with that property, give the denomination power to dissolve a congregation and take possession of its property, and require a congregation that dissolves itself to turn property over to the denomination.
The idea of Hooker that advocated a synthesis of Roman Catholicism and Calvinism suggests a contemporary reinterpretation of his writings. It would be helpful to our readers to provide them with the specific passages in his writings upon which this conclusion is based so that they may examine those passages within the context of his entire corpus of writings, as well as the name or names of the authors drawing this conclusion. There has been a tendency in some quarters of the Anglican Church and even outside the Anglican Church to take passages from Hooker and to use them to support a pet theory and then to claim Hooker himself took such a view. Also, we must be cautious about giving too much weight to Hooker's views as if everything that Hooker wrote trumps everything written before, at the same time, or after he wrote.
A study of the history of the English Church and leading figures from the Reformation through the Laudian period shows that even among the High Church Caroline divines a strong anti-Roman sentiment prevailed. The Church of Rome refused to acknowledge the Church of England as a legitimate part of the one holy and catholic Church and sought to subvert its leaders, including the King and other members of the royal family.
The Church of Rome of today is, despite its social conservatism, still an unreformed Church. In Pope Benedict's recent proposal it has taken the position that it has always taken. The Church of Rome is right and Anglicans to gain its acceptance must recognize that it is right.
John Richardson in his New Diections, "A Host of Oversights - the House of Bishop’s Response to One Bread, One Body," on the Internet at: http://www.trushare.com/73JUN01/JN01RICH.htm, makes an important point that is applicable to the foregoing reinterpretation of Hooker's writings:
"However, a problem with TESU is not only that it is less than Evangelical but that it fails even to present historical Anglicanism accurately, opting instead for a post-ARCIC, post-Common Worship vision of ‘normality’ where the theological understandings of the past have undergone considerable blurring in order to find agreement with Rome in the present (my emphasis). This is particularly so regarding TESU’s handling of the central doctrines of ‘real presence’ and ‘eucharistic sacrifice’.
We need to be wary of this tendency to blur or even misrepresent past theological understandingsto find agreement with Rome.
Randall,
Please reread my article. I do not dispute the claim that the ACNA cannot assert any claim over the property of a local congregation. What I draw attention to is that the diocese or grouping under the provisions of the ACNA constitution and canons can take a local congregation to court over church property and consequently congregations in the ACNA are not free from the threat of property litigation. If you look at most of the litigation in TEC, it is the diocese that is taking a congregation to court over property ownership such as in Tennessee.
Compare the provisions of Article XII and Canon 1.6.6 with those of Canons I.7.5 of the Province of Rwanda:
Legal title to all property utilized by local congregations shall be indefeasibly vested in the local congregation, or in a corporation owned and controlled by the local congregation, or in one or more trustees of one or more charitable land trusts that are appointed or elected by the local congregation and hold the local church property in trust for the benefit of the local congregation.
To close the two "loopholes" that I have identified, I have proposed the following amendment to the ACNA constitution:
All church property, both real and personal, owned by each member congregation now and in the future is and shall be solely and exclusively owned by each member congregation and shall not be subject to any trust interest in favor of the Province, a member diocese, or any other claim of ownership arising out of the canon law of this Province or any member diocese thereof. Where property used by a local congregation is held in a different manner by any diocese such property shall be transferred to the local congregation, within five years of the adoption of this Constitution, under such terms and conditions as the diocese and the local congregation agree upon. A local congregation may dispose of its property as it determines, subject to any self-accepted indebtedness or other self-accepted restrictions. Nothing in this article shall be construed to abrogate or curtail the right of this Church or a member diocese thereof to own, hold, manage, and convey property in its own name for the purpose of carrying out ecclesiastical programs.
While these changes would not eliminate the possibility of litigation altogether, they go much further than the existing provisions of the ACNA constitution in protecting the property rights of the local congregation.
Robin,
Newbie here. And I'm sorry to post this comment here, but I wasn't sure how else to contact you.
In the last few years I've proceeded from Fundamental Baptist to Reformed Baptist to - well, I suppose you could call it Episco-terian. The more I read and study my Bible, the more I see Covenant theology, Calvinist soteriology and sacraments, as well as a higher view of liturgy. After studying Revelation and seeing the beautiful, common liturgy there, and the high place of the eucharist (marriage supper), I wanted to find that in a church. From what I had seen of my local REC (the vicar was ordained Presbyterian before becoming REC) they were very conservative and reformed. I bought a 1928 BCP thinking that was the conservative, reformed edition. But as I've tried to find other RECs, I keep encountering Anglo-Catholicism. And not just elements of it, but they call themselves Anglo-Catholics. That really confuses me.
Where is J.C. Ryle's church? How does one find a faithful Reformed Anglican church? As I said, I'm rather new to all this. I'm coming to this from reading Scripture, so I'm not even sure what questions to be asking. Thank you
Brian:
Welcome to the "Lonely Hearts Club." Was REC for 25 years, but could not abide the "double-minded" dealings, back-room deals, non-transparent statements,of the bishops.
Watch your theological wallet. Place hand firmly on it and look over both shoulders, like a Gideonite soldier.
LOL, at least I can laugh at them now.
Cheers,
Phil
Brian,
There are conservative evangelical Anglicans or confessional Anglicans, if you like, who are Protestant in their identity and Reformed in their theology in and outside the ACNA but they are not found in one particular jurisdiction within the ACNA or outside that body. Conservative Evangelicals have no "enclave" in the ACNA as do traditionalist Anglo-Catholics. As you have discovered, the REC is for a large part no longer Protestant, much less Reformed.
I can be reached at heritageanglicannetworkATgmailDOTcom. I would be interested in learning more about your present situtation and sharing with you some ideas for networking together individuals like yourself.
rian,
It seems that you have discovered the same thing about the REC as others have. The REC has changed from a Reformed Church to an anglo-catholic one by treachery and treason of its leaders (wolves in sheeps clothing). But there are those of of us who are throughly Reformed "Anglican" Christians as you seem to be. It is my hope and prayer that we will begin to find each other. I am in Williamsburg, Virginia. Where are you?
In Christ
Joe Mahler
Wow. This has been a great response and I really appreciate all of your help (and continued help, I hope).
I am in the buckle of the belt - er, Greenville, SC, that is.
We are currently members of a Community Church. This is where I found the freedom to study and come to these conclusions. I've been using the 1928 BCP at home, but ordered a 1662 yesterday and will switch once that arrives (hopefully next week).
Brian, you can trust Joe Mahler. Have known him for years. Robin follows all these constitutional questions closely.
I use the 1662 BCP, but--to my mind--it needs numerous revisions.
Am going to do some writing on it.
The REC leadership, for many of us who've watched them, have lost trust, confidence, and respect--for a military guy, the latter loss, of respect, is huge.
Keep the hand firmly on the wallet. ACNA is a coreless breed in terms of the Reformed faith, e.g. Calvinism.
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