Ft. Worth Supreme Court Decision Should Be a Governance Wakeup Call to TEC

By | February 22, 2021

Earlier today, the US Supreme Court declined to grant certiorari to loyalist factions seeking to maintain Episcopal control over church assets in the Ft. Worth area. As a result, dissident factions how have unquestioned control of formerly Episcopal assets, thanks to a Texas Supreme Court decision that grants property to the dissidents. While the outcome is painful for many, and wrongheaded, for it overrules the ability of the Episcopal Church to manage its internal affairs, the decision should be a wakeup call for the denomination. Specifically, the denomination needs to clean up its feckless approach to governance.

History of the “Dennis Canon”

The so-called Dennis Canon was passed by General Convention in 1979, and was named after an attorney, Walter Dennis, who late became suffragan bishop of New York. In a nutshell, the measure established a trust interest in parish and diocesan property in the larger denomination.

The move made good sense. While such an approach was traditional, the matter had been left largely to chance prior to passage of the measure. At the same time, it was a much-needed provision, for it is difficult to plan, for example, to leave one’s estate to a parish if there’s no assurance that the assets indeed will remain Episcopal.

Implementation — About What You’d Expect

The problem comes in the implementation and deployment of the Dennis Canon.

Under the church’s constitution and canons, all dioceses must adopt an accession clause, in which they agree to, and adopt by reference, the national constitution and canons. Thus, to my belief, all the dioceses require parishes to adopt their own accession clauses.

But in true Episcopal Church fashion, many dioceses pay scant attention to this issue. Indeed, in the South Carolina litigation, a number of parishes were found to be operating without any accession clause in their governing documents. Nor were these recently established parishes; most had been around for quite some time. Similarly, TEC for many years ignored, without objection, changes to the Ft. Worth canons, as recognized by the Texas Supreme Court:

Episcopal church ignored canonical violations

And while it is clear that adoption of an accession clause would not, in itself, have been adequate to prevent the Ft. Worth debacle, nothing prohibits dioceses from going further in ensuring that Episcopal assets remain Episcopal. The Diocese of Virginia, for example, specifically requires that trustees be named in favor of the diocese, and that the ecclesiastical authority or bishop may take action to recover property that may be at risk.

Nor is there anything to prevent a bishop from exercising her authority to issue pastoral directives requiring all rectors, for example, from sending her a copy of church governance documents. Or to execute deeds specifically in favor of an express trust interest to the diocese.

And while I’m often aghast at feckless attitudes and behaviors at the diocesan level, as someone whose will used to leave the entire remainder interest in my estate to my former parish, I would not see this as an inappropriate exercise of episcopal authority. Indeed, I would find it reassuring to know that my testamentary intent would likely be fulfilled.

Meanwhile, it is quite common to see dioceses ignore the national canons with impunity. Indeed, here in Virginia, one of the bishops sat on the tribunal that tried the ironically named Bishop Love for his refusal to implement same-sex marriage in his diocese, even as the Episcopal Diocese of Virginia blatantly ignores the clergy disciplinary provisions of Title IV. Not a great precedent if the diocese again skids into court over property issues, or any other issue involving enforcement of church canons.

For the Record

For the record, I did provide financial support to loyalist factions here in Virginia during the property recovery litigation, doing so both openly and anonymously. And my heart aches for generations of faithful Episcopalians whose generosity has been undone by a bunch of dissidents.

I also recognize that, representations to the contrary notwithstanding, the issues with the dissidents often have little to do with those of us, me included, in the LGBTQ+ community. Yes, we are a favorite scapegoat, and no doubt there are many among the dissident factions with no great love for us.

But my experience is that the issues usually transcend LGBTQ+ equality. Indeed, at the Falls Church and Truro, both near my home, my interaction with their rectors over the years suggested that the real issues involved power and control. That became particularly clear after John Yates, the long-time rector of The Falls Church Episcopal, was allegedly passed up for a bishopric—which in hindsight seems a prescient decision.

The Blind Eye Continues

And while I certainly am not privy to the internal discussions of all the dioceses, I see no sign that most dioceses have learned anything from this debacle.

Indeed, this is an appropriate role for the creaky old heap that is church headquarters, otherwise known as 815, after its street address in Manhattan. Given the huge chunk of rapidly dwindling revenue that church headquarters consumes, addressing these issues would, if nothing else, be a matter of self-interest.

Meanwhile, the larger church dithers over revisions to the Book of Common Prayer, which at this pace never will happen given the current rate of decline in TEC membership.

How might the church address issues involving property ownership?

  • First, it’s time to revisit the Dennis Canon and take action to strengthen it. For instance, establishing a church tribunal to adjudicate property disputes would make clear, as a First Amendment matter, that the church wishes to decide such issues for itself, without resort to the secular courts. Similarly, given the aging demographics of the denomination and thus the amount of wealth set to pass in the next 20 years, it makes sense to require all dioceses and parishes to execute and record deeds in favor of the denomination, so that there is a clear mechanism for the passage of wealth.
  • Second, we need to look at ways the national church can hold bequests and other assets for dioceses and parishes in a way that ensures mission integrity. This includes strengthening the Episcopal Church Foundation (ECF), which in my firsthand experience doesn’t even reply to requests for additional information. (Yes, at one point I tried to set up a bequest to ECF in my will. Having never heard back, that option now is off the table.) Thus, if the ECF doesn’t already have this set up, there should be a dedicated, restricted trust for each and every diocese. Meanwhile, ECF needs to act in way that shows it takes its mandate seriously.
  • Third, bishops need to take seriously implementation and enforcement of the Dennis Canon and other provisions that ensure that parishes truly are Episcopal. Over the years, I’ve been a member of more than one parish that flagrantly ignores church canons, with one openly flouting canons regarding the election of vestry members. This sort of thing is easy to ignore, but doing so can readily lead to later regrets. And some parishes have been at odds with Episcopal polity for decades, with zero consequences. That simply cannot continue.
  • Fourth, dioceses need to be open to vestry members and other leaders who raise concerns about parish governance. In my experience, many bishops refer such concerns back to local vestries, but that is basically a non-starter, for far too many vestries are nothing but rubber stamps for clergy who have settled in to become little mini-monarchs. A bishop, however, has the ability to handle such issues with courtesy and discretion, especially if the expectation is set in advance that the diocese pays attention to such issues. Indeed, one bishop whom I generally hold in high regard expressly cautions clergy that he expects churches to comply with diocesan audit requirements — and a failure to have a clean audit can and will be regarded as a canonical offense.

Of course, challenges with good governance in the Episcopal Church extend beyond just the Dennis Canon. The Ft. Worth debacle illustrates the importance of paying attention at every level to good governance, and the perils when these issues are ignored.

Thus, bishops as a group, the presiding bishop, and the church as a whole have an obligation to model good governance, to set high standards of good governance, and to insist that church leaders act with honor and integrity. That means vestries that are accountable and empowered, that understand Episcopal polity (a great many don’t), and clergy and staff that are held to the highest standards on every front.

The current paradigm, in which corporate America consistently displays standards that exceed that of the church, simply has to end.

Good governance simply is not too much to ask.

 

 

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