This post is for the initiated into the arcana of American state religious society law.
The interesting recent California case concerning Episcopal Church governance is New v. Kroeger, 167 Cal. App. 4th 800 (2008). I don’t have an accessible link but you can get it from the California courts website, courtesy of Lexis.
As it goes, this turns out to be another case where there was a parish at odds with the local diocese. Unlike Good Shepherd Rosemont, however, and much like St. James the Less, the people at odds decided to set themselves up, essentially, as their own denomination. They decided to affiliate with one of the “Anglican Church” constructs that have appeared within American Episcopalianism in recent decades.
It looks like the breakways got a win at the trial court level. But when it went up on appeal, they got their butts handed back to them. They lost big.
What is novel to me about the opinion is that state judges are finally being forced to open up the Constitution and Canons of the denomination, and actually start reading and making sense of what the actual rules are. What Judge Nares makes very clear is that Neutral Principles can be used as an analysis in applying rules to incorporated religious societies. As the rules themselves are the product of “hierarchical polity”, there is no inconsistency between so-called “deference” and an actual reading of what the denomination said are the rules.
As a case like New v. Kroeger has gone, it’s clear that the “Culture War” minority in Episcopalianism needs to climb into the Neutral Principles boat mighty fast, or risk losing everything if their local bishop is at odds with the parish. Otherwise, they will get an effective Establishment of another church’s (usually Roman Catholic) polity shoved down their throats via the local judge.
And how do they defend? By showing that they followed all the canons as enacted by the highest “judicatory” (decision making body) of the denomination. Like I mentioned, within Episcopalianism, it’s the triannual General Convention.
Link to the latest Episcopal Church Canons (2006)
The strategy is to force the judge, if he/she seeks to impose hierarchical rules on the denomination (and those are usually the ones from his/her own beliefs, or that of the local electorate that put the judge in robes), he/she be forced to explain where these rules are coming from. Not just say “hierarchical polity requires deference to the Bishop” or some nonsense like that.
You will not find anything in the link above that even suggests “hierarchical polity requires deference to the Bishop” on every decision a bishop makes. Why then have the two chamber House of Laity and House of Bishops at the General Convention level? Why were the canons written down if they don’t matter?
If the bishop wants to take all the diocese’s money and visit the Atlantic City casinos, because “it’s God’s will”, do you think American trust law actually requires that bankruptcy?
In the Good Shepherd Rosemont matter, it doesn’t look like any of the vestry in service there have “left” the Episcopal Church. That’s the electric rail in the church property cases like New v. Kroeger and the St. James case. They do have a rector, Rev. David Moyer,who, while serving as rector, has also affiliated with other, Anglican-styled groups. And he sought approval from foreign Anglican bishops as moral comfort for his predicament.
But it doesn’t seem to me that the vestry itself has done anything against canons.
And while it’s discomforting by the rules, maybe, that the vestry didn’t send Dr. Moyer out the door when he was disqualified by former Bishop Bennison (who in turn was defrocked for covering up that teenager sex scandal of the bishop’s brother), who is to say that they simply aren’t being tolerant of an eccentric? One that, furthermore “likes to sue”, as is said nowadays of people who rely on the court to vindicate personal rights. It seems reasonable that the vestry there could argue they didn’t want to be sued if they fired Dr. Moyer, so kept him on.
And in the end: The bishop does not pick the parish rector in the hierarchical rules of the denomination. The vestry picks the rector. It’s an overreach, as I read it, when that rule is turned on its head.
By treating the religious nonprofit using different legal standards than the ones that would be applied to a regular (i.e. nonreligious) nonprofit, wayward courts risk Establishment.
So it will be interesting to see what comes out of this potpourri.