Posted on 12/07/2006 6:08:19 PM PST by sionnsar
Good news, but don't forget, the appeal goes to the 9th Circuit..
St. Andrew's Vestry Members Dismissed From Lawsuit [Central NY, Dennis Canon], Raymond J. Dague, 9/01/2006
News Everywhere about the St. James Newport Beach Ruling (Brad Drell on the Dennis Canon), 8/12/2005
Brad Drell on the Dennis Canon (and more), Brad Drell, 6/12/2005
Do loose canons mean Dennis de minimis? [The Dennis canon], Louie Crew, 6/10/2005
Viewpoints : Dennis Canon...Gallup...New Hampshire...Panel of Reference...more news..., David Virtue, 6/08/2005
Is the End in Sight? (Dennis Canon never ratified?), David Virtue, 6/05/2005
On "Who Speaks For Religious Folks" (Dennis Canon never passed?), The Rev. Lawrence Thompson, 5/20/2005
Happy reading! (The oldest are the most direct references...)
Regardles of the merits of the case, an attorney who notifies the court that he is so busy that he can't take the time to show up in person for a hearing inflicts a fatal shot to his client's case.
The thing is, we pretend that law is this broad and generic thing that is applicable in the abstract, but that is not true in gross or in fine.
In gross, law is a political tool for imposing the will of those controlling the lawmaking and law enforcement processes. Therefore, law is never uniformly enforced, and never will be. I suppose a nice pair of examples would be that the Communion wine of the powerful and huge Catholic Church was not stoppered in most places during Prohibition, but the peyote of the Navajo Indians is illegal, regardless of the ancientness of the practice or centrality of the drug to the rituals. Catholicism is big and powerful; you treat it different politically than you do some cult on the fringes.
In fine, the law in any particular case is decided by a man, or maybe a handful of them. The judge's name is very Hispanic. Odds are, he is either a Catholic or an Evangelical. Either way, odds are that he has no respect for the gay English Church, and, when faced with a close question of law, will choose the arguments that favor giving a bash in the chops to the organization he disfavors.
That's why judge or jury selection is where cases are decided.
Evenhanded, impartial, blind law is like Santa Claus: a beloved, friendly, warm-and-toasty-inside fairy tale.
Just for the record, no, it doesn't.
Under current 'neutral principles of law' the courts should be looking at the paper record, not Canon law. I THINK I could set up an arrangement which would achieve the desired results in most states, but I bet you'd be hard pressed to find any bishop who had an adequate legal setup before 2000, and there are probably still a lot who don't.
You have to walk a fine line between being able to maintain legal control and insulating the assets from seizure. In the past, most of the Bishops leaned toward control. Wasn't it Boston where the Bishop went around closing and merging economically viable parishes, and disposing of the property for the benefit of the diocese? That is somewhat inconsistent with saying that the assets can't be made available for creditors of the diocese.
I realized my mistake...that's what happens when you speed read..thanks..and good morning..
Do you think that the mundane item of the name on the deed played a major part. If so, that will be the next change that the ECUSA will be acting on nationwide.
Dear KC Burke,
"Do you think that the mundane item of the name on the deed played a major part."
Sure, but I wonder how much of a part. That seems to me only a piece of the puzzle.
In my Catholic archdiocese, the name on the deed of many of our parishes is the parish itself. So the question then becomes, who "owns" or at least has legal control over the parish.
In the Catholic Church, that's almost always the pastor. But sometimes that control is attenuated by some sort of board of trustees, finance council, etc. On the other hand, in all cases, the pastor is answerable to the bishop, can be dismissed and replaced almost (but not quite) unilaterally by the bishop, and any board with any real power is almost always under the ultimate, but not immediate control of the bishop.
However, there are instances of parishes where the name on the deed is the parish, itself, but where the parish is tangibly and provably controlled by the laity of the parish.
In Catholicism, parishes like this are very few and very far between.
Thus, the same circumstance - parish name on the deed - might lead to two different results, depending on what the facts of each case suggest about who really and legally exercises control of the assets.
I'm no Episcopalian, so I'm kinda fuzzy here, but I imagine that Episcopalian polity gives the laity at least one leg up on their Catholic brethren, in the matter of control. My understanding is that the laity of a parish usually control the finances of the parish, have the ability to hire and fire pastors (subject to some form of approval/disapproval of the bishop), etc. Also, the governing lay boards are somewhat more beyond the reach of the bishop's control than are analogous Catholic boards, when they exist at all.
I imagine that that reality makes it more difficult for the Episcopalian hierarchy to make their case for hierarchical control of parish assets.
And then, state law plays into it more than folks may realize.
In Maryland, for instance, there is a state law that requires the courts of the state of Maryland to respect as binding the canon law of religious groups that are hierarchically based when it comes to questions like this. This law was passed specifically to give the Episcopal Church in Maryland the capacity to govern itself with little interference from civil courts. However, my understanding is that it also applies to the Catholic Church in Maryland.
I think that it would be much more difficult for a parish to break away from the Episcopal diocese of Maryland.
sitetest
Dear PAR35,
"Under current 'neutral principles of law' the courts should be looking at the paper record, not Canon law."
"Current" is the operative word here, I think. It's my understanding that in decades past, courts were more inclined to give greater weight to the internal structures set up by religious organizations, especially if, as in the Catholic Church, there existed a reasonably well-laid out code of law that was clear, explicable, and applicable.
As well, even under "current neutral principles of law," it seems to me that the court could have viewed the parish assets within a diocese as something other than assets purposed for the benefit and disposal of the diocese, since, in fact, they are not such assets.
Instead, the court chose to interpret the situation as if the diocese were a for-profit business, and the parishes are little money-making divisions that exist for the benefit of the diocese-as-business. Which contradicts the actual facts.
sitetest
The Presbytery of Eastern Oklahoma (PCUSA) ran out and recorded documents to try to cloud the title of every church in the Presbytery. The matter is currently being litigated by Kirk of the Hills in Tulsa. The outcome of that litigation should give some indication of how successful the ECUSA/TEC would be if they try your suggestion.
Dear PAR35,
"The 'neutral principles of law' theory goes back to the late 60s/early 70s."
It's a fairly recent innovation, then.
"If the Bishop can order the parish property sold with the funds put in his hands (Boston) to use as he wishes, he shouldn't be able to say that he can't order the property sold and the funds put in his hands (Oregon) for payment to the diocese creditors unless proper legal structures have been set up to protect the assets."
The thing is, the bishop isn't permitted to sell the parish property and do with it as he wishes. He is constrained by Canon Law to do with it as Canon Law instructs him. He holds control of the property in trust for the parish.
Even should he close a parish, its assets aren't supposed to revert to the diocese for any old use. That the proceeds of the sales of parish assets may have been used to pay off diocesan creditors in relationship to the abuse scandals is actually a violation of Canon Law.
"In that case, the title holder should record the governing code of canon law in the real estate records as covenants."
I'm not a lawyer, so that sound like one reasonable approach. I think that it's likely that there are others. Where I live, in Maryland, I think it may be less of a problem.
sitetest
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