“If you choose not to decide, you still have made a choice!”

“You can choose a ready guide in some celestial voice.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that’s clear
I will choose freewill.”

[Emphasis added.]

Lyrics by Neil Peart of the classic rock group Rush

Back on yesterday’s topic about the Episcopal Pennsylvania Diocese and the Church of Good Shepherd:

I clicked in to David Virtue’s Virtue Online last night to read a little more deeply into what has been going on in the Diocese.

If you remember, a few weeks back I was talking about asset grabs and shakedowns among warring factions in the U.S. Episcopal Church (also known as the U.S. Protestant Episcopal Church.)

Many of these disputes have now ended up in Pennsylvania courts. And God help you if you ever have to have anything decided in a Pennsylvania court. If you aren’t a believer in God you will see how quickly you feel the need to pray to some supranatural Entity to save your ass.


The Episcopal Church House, a phrase that would normally stand for the Bishop, but now appears to stand for a committee called the Standing Committee, has decided that the corporate officials of the Good Shepherd (Rosemont, Pa.) aren’t quite fit to be holding on to the parish property. Like I said.

And in their filing [link later when I find it again], they are relying on a local church rule, or “Diocesan Canon”, numbered 13.4:

SEC. 13.4 Providing a Trustee for Corporations Unable to Function

Whenever any property, real or personal, has heretofore been or shall hereafter be bequeathed, devised or conveyed to, or be in any manner in the lawful possession of any incorporated body, for use in connection with the work of the Episcopal Church in this Diocese, and such incorporated body

(a) through loss of membership or otherwise is, or shall become, incapable of corporate action, or

(b) in the determination of the Standing Committee has, in fact, discontinued normal exercise of corporate functions, or

(c) through its vestry or board of directors shall formally resolve it wishes to relinquish such trust,

(d) shall legally dissolve, or

(e) in the determination of the Bishop, with the advice and consent of the Standing Committee, has ceased to act in accordance with the Constitution, Canons, doctrine, discipline, and worship of The Episcopal Church and the Constitution and Canons of this Diocese, then the Ecclesiastical Authority, anything in the articles of incorporation or by-laws of such incorporated body to the contrary notwithstanding, shall be trustee thereof, by and with the consent of the Standing Committee, to take such steps as may be legally necessary or proper to vest such property, real or personal, in The Church Foundation, under the same trusts under which it had been held by such incorporated body, or if there be no such trusts, or if the same, in the judgment of the Ecclesiastical Authority, have become impractical of execution, then under such additional or different trusts as may be declared by the Ecclesiastical Authority by and with the approval of the Standing Committee. In the event of the application of clause (e) of this Canon 13.4, nothing herein shall be construed to preclude the Ecclesiastical Authority from first seeking reconciliation.

In short, the Diocese is saying in (e), that whenever the Bishop and the Standing Committee decide that they don’t think a parish vestry is adhering to the rules of the Episcopal Church, they can come in and scoop up (or scoop out) the property.

Now remember, this is a religious body deciding that they will write a rule to govern property in a civil legal system.

American state property law derives from the citizenry, not a church official. American corporation law derives from the citizenry, not a church official.

In Pennsylvania, this has never been made clear—the distinction between adherents’ “first amendment beliefs” and state property law and/or state corporation law.

I think it should be clear to any lawyer that first amendment beliefs are one thing, and state property law is another, as well as state corporation law.

It is inappropriate to let one individual’s religious beliefs trump others’ when it regards things like the civil law. You are entitled to your own beliefs, but not to impose them on others. Or to try and take or grab property or civil power that belongs to others on the excuse of those beliefs. That is to say, that you would try to get a court to endorse your religious views about the use and control of property in order to win the day in court.

Yet this is what Canon 13.4 in the Pennsylvania Diocese looks to do. In sections (a) through (d) the Diocese seeks to claim power over property, as trustee, in the event of situations that either don’t involve someone else’s religious perspective, or in ones where someone else has made an affirmative action as we understand in civil law, to give up property rights.

Only in (e) does it look like one person’s first amendment rights are trumping others’.

Like I say, in heavily Roman Catholic Pennsylvania, the Roman Catholic judges have in the past apparently not seen any problem with that.

They love the “deference rule” of American Supreme Court jurisprudence, and to quote it liberally. The rule says:

“[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding . . . .” Watson v. Jones, 13 Wall. 679, 727.

It is: We choose not to decide.

But the problem is when the judges allow the belief system to compromise civil law, and to trump the first amendment beliefs of the other interested parties.

In our screwball election finance system, we are governed under the idea from Buckley v. Valeo wiki here, 424 U.S. 1 (1976), that equates money (i.e. property) with “speech”. The U.S. Supreme Court ruled that property was the equivalent of speech.

I think that Justice Stevens (God bless him), pointed out in dissent that money is not speech. Money is property. Speech is speech.

We have the same problem in the Pennsylvania court system. Property does not have a first amendment right to religious belief. Religious officials’ personal religious beliefs have NO merit in deciding property disputes. The first amendment governs the right of you to believe in whatever god or salvation you choose (or none, right?) But the property law and the corporation law of a state should NOT be dependent on what an individual believes religiously! Property is property. Belief is belief.

Am I wrong or do I misunderstand something about being an American?

So, in short, you either believe that civil law always governs the control and use of property, or you believe something else. If you hide behind “deference rules” where it is up to some spiritual official to decide these matters of civil law, well . . .

I feel sorry for the Good Shepherdites. I strongly feel they are about to get hosed by inconsiderate Roman Catholic judges. But I think the analysis is correct, that Pa.C.S. Section 5107 requires the judges to look at the canon laws and apply them, except in cases where it looks like one person’s religious beliefs are trumping someone else’s. Or where the state law would be required to defer to the religious beliefs of one American over another.

Then, I think there is trouble.

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