No, I replied, the Dennis Canon only applies to the real and personal property of "any Parish, Mission, or Congregation." But that started me thinking. What if, at some future General Convention, someone introduced a new canon stating that the property of all seminaries that had historically served the Episcopal Church would, from that time forward, be held in trust for the Episcopal Church. Would that make it so? Could the Episcopal Church do that?
No, it could not. In the first place, the seminaries have been founded, chartered, and incorporated as free-standing institutions. The Episcopal Church has never asserted ownership of the seminaries.
Let's take another example: There are Elks' Clubs all over the United States. They own club houses, often with facilities for dining and dancing. Some local clubs own golf courses and other extensive facilities. Suppose, at a national convention of Elks, they introduced a constitutional change stating that, henceforth, all of the properties of the local Elks' lodges would be owned by and held in trust for the national organization. Would that fly legally? I don't think so!
Why does the Episcopal Church assert control over local church properties? First of all, in many cases local parishes have not incorporated as separate entities. They have operated under the corporate status, tax exempt status, etc. of the diocese in which they reside and the larger Episcopal Church.
Secondly, and more importantly, in court arguments, the Episcopal Church has asserted that it is a "hierarchical church." Presbyteries of the PCUSA have also been known to assert the same argument, though not always successfully.
More specifically, with regard to property issues, some national church bodies, such as the Episcopal Church, have asserted that they are hierarchical churches, like the Roman Catholic Church.
Oh, really? When did you ever see a Roman Catholic diocese hold a convention and elect a bishop? Do Roman Catholic dioceses elect deputies and send them to a convention every three years where they can vote to do anything from changing the shape of the liturgy to approving same sex marriages? The General Convention of the Episcopal Church could even change the Creed if they so desired. I can envision someone responding that there are some things about the Episcopal Church that would never change; but they are speaking out of mere sentimentality, not with a view to legal or constitutional reality. The fact is that there is nothing that inheres in the nature of the Episcopal Church, and there is no hierarchical authority (as in the Papacy) to see that it does.
Parenthetically, this is why there is all the fuss about the prospect of an Anglican Covenant. For the first time in the history of the Anglican Communion, there might actually come into being a document with the authority to bind Communion members to standards of Anglican doctrine and identity. And the very same people who are resisting the idea of an Anglican Covenant are the same ones who want to claim that the Episcopal Church is a hierarchical church!
No, what you have in the case of the Episcopal Church is a representative democracy, where every aspect of its constitutional and canonical structure comes from the consent of the membership and can be changed if the membership so chooses.
It is argued that "The Dennis Canon codifies the existing trust relationship the Episcopal Church has long had regarding property held by its parishes." Try telling that to the members of King's Chapel, Boston (and other colonial churches), or Mariner's Church, Detroit; or St. Mary's Church, Los Angeles. (There are other examples, but you get the point.)
The reality is that the Episcopal Church and its various dioceses enjoyed a maternal relationship with its parishes that had the appearance of ownership because no one in the parishes ever wanted it to be otherwise. And just about the time the Episcopal Church was beginning to make changes that would alienate a portion of its members, some clever canonical lawyers, with the acquiescence of members who trusted their church, exercised the power of a majority to expropriate the property of congregations.
It is worth considering the technical definitions of two terms I have just used:
Acquiescence is the term used to describe an act of a person in knowingly standing by without raising any objection to infringement of his rights, when someone else is unknowingly and honestly putting in his resources under the impression that the said rights actually belong to him. Consequently, the person whose rights are infringed cannot anymore make a claim against the infringer or succeed in an injunction suit due to his conduct.
Expropriation is the act of taking possession of an item of property from its owner in exchange for little or no compensation and irrespective of the wishes of the original owner. The term is used to both refer to acts by a government or by any group of people.
Now what is my point? Am I stating that congregations should violate the Constitution and Canons of the Episcopal Church? No. My view is that the Dennis Canon is a legally enacted injustice and ought to be changed by legal or democratic means, or overruled by the courts acting on the basis of neutral principles. What are neutral principles? "Neutral principles" means that the trust laws of a particular state ought to apply to churches the same as any other entity. That is to say, a church is not exempt from the trust laws that apply to other corporate entities just because it is a church. To do otherwise, it seems to me, is to give preferential treatment on the basis of religion--to "establish a religion," in violation of the First Amendment.
In other words, to refer again to my analogy of the Elks' clubs, if it would violate the trust laws of a given state for the Elks' clubs to expropriate the properties of its local chapters by an article adopted by a national convention, then, under neutral principles, a national church organization should not be able to get away with it either.
Further, it seems to me, in the interest of fairness, that a church that claims the freedom to change something as fundamentally Christian as the definition of marriage ought to admit that it is sailing off into a Brave New World and have the grace and humility to release amicably those congregations and dioceses that cannot, in all Christian conscience, go there. And church leaders who are so fundamentally anarchic as to throw off the constraint of historic Christian teaching ought to drop the pretense that they have an authority that is, in any sense, hierarchical.