A.S. Haley may have missed the unintentional humour of Judge Larry Schwartz in his decision favouring TEC in the case involving Grace Church and St. Stephens in Colorado. Part of his decision reads as follows:
For one thing, it appears to be rare that parish members, induding members of the governing Vestry, know anything about the details of canon law. In fact, Bishop O’Neil testified that no one expects church members to know much about the canons. That testimony is consistent with what was testified to by lay members of the parish; all of whom said they knew little or nothing about the canons. Thus, when the parish executes a document that pledges fidelity to canon law, it does so without members of the parish having actual knowledge or understanding of what it is that is being adopted.
Many years ago, I took Fluid Mechanics as part of my engineering education. Our teacher was Prof. Edwin Sereno Holdredge, a Lenoir City, TN native (and UTK graduate, for you Vols fans) whose dry East Tennessee humour escaped many of his urban, Texas raised students. One time he was talking about some consulting work for the Army about fluid flow around buildings. He said that “They said they didn’t know anything about fluid flow around buildings,” and then added, “They were right, they didn’t.” (Those of you involved with the military will have a special appreciation for that!)
Nevertheless, it’s amazing that laity, who invest their lives and time in their local church and denomination, are a) so ignorant about the workings of their church and b) so unable to have input on it because of the way their church actually works. As Judge Schwartz goes on to opine:
For another, canons are essentially created and imposed unilaterally. They appear always to have been adopted at the National Convention. Once they are adopted, they are imposed on all parishes through publication in the Episcopal Book of Canons. Even though the board that recommends changes to canons is made up of representatives from individual parishes, the canons are still ultimately imposed upon individual parishes from the hierarchy of bishops. Application of canon law is based more upon membership in the Episcopal Church than it is upon adoption through a democratic process where all individual church members participate.
And, I might add, TEC isn’t the only church which has this problem, either. The undemocratic nature of this is evident, but when it comes to property disputes, it may have legal implications if a court would decide to pursue the matter. Judge Schwartz goes on:
The perceptual legal problem with this procedure is the one argued by these Plaintiffs and those in other schism cases: that under a “neutral principles” analysis, it is difficult to understand how unilaterally imposed canons can create a legal trust relationship. While the canons form the basis for govemance within the Episcopal religion, they are usually unknown to all but the clergy and they don’t create a trust relationship in the manner one normally comes to expect. Unlike the secular “norm”, the canons purport to create a trust through a process that is the opposite of most estate situations. That is, the trust is created by the beneficiary of that trust and is imposed unilaterally on the settlor/trustee.
Fortunately for TEC (and other centrally held churches,) this Colorado court, like its counterparts in California, have held the Dennis Canon to have created the trust that owns the property, irrespective of how little input the laity (or most anyone else in the church) have had in its creation. But the possibility exists that, in the future, a court could go the other way based on the way in which this “trust” is created. That’s especially a problem for TEC because of the ex post facto nature of the Dennis Canon (the Church of God’s practice is more consistent,) but up to now such a court has not been found.
In the meanwhile, it would behoove churches to make their laity more participants than spectators in the life of the church. It’s consistent with the New Testament concept of the role of the laity and, as we saw recently in Conneticut, there’s a move out there to impose that on churches. It hasn’t succeeded. Yet.