No decision yet in the Good Shepherd Rosemont (Pennsylvania) case

This is for the Anglo-Catholics and other interested persons following my blog for insight into what is going on with churches and church members losing their rights within the Episcopal Church. My previous installment on Good Shepherd is here.

To review, the story is this: The Diocese of Pennsylvania is looking to yank the Good Shepherd property out from the parish’s board of directors (vestry). This is mostly due to the long-running dispute between the diocese and the vestry over Father David Moyer, who is part of an Episcopal Church group called “Anglican Church of North America”. The Episcopal Bishop of Pennsylvania, who has his own story that I leave you to Google, yanked Father Moyer’s license to officiate in the diocese in 2002. This was done against canons. The vestry did not fire Moyer, however.

The Diocese of Pennsylvania went to Montgomery County Orphans’ Court Division, which handles issues of nonprofit corporations in Pennsylvania, to get control of the property. The diocese claims that, under something known as the “deference rule”, whatever the diocese decides, the judge has to agree. The Good Shepherd vestry object to this. They say that the diocese has no claim on the property and that the vestry hasn’t done anything against canons or given any other reason for anyone to say they shouldn’t hold the property.

We call what the diocese did a “motion for summary judgment”.

I keep my eyes peeled for an order and an opinion in this, because Pennsylvania religious society law is entirely messed up. This is mostly due to stupid opinions written by less-than-competent judges on the issue over the past 20 years. But it’s also due to the influence of the Roman Catholic Church is some parts of this state.

Pennsylvania is not majority Catholic by any means. I think the number is 37%, which is less than New Jersey (46%). And many Catholics today, I’d say, are nominal Catholics. Meaning, they get counted as part of the numbers, but aren’t these zealots always preaching and pushing on others. I am baptized Catholic, by the way, just so you know, but joined the Episcopal Church in my younger, adult days. Nowadays, I just consider myself a bystander to organized religion more than anything. The multiple petty disputes–and agendas–you find in organized religion just scramble the message of Jesus. They are a real turnoff.

Back to Rosemont: What has happened is that Rosemont is at the short of the stick of all the other, prior litigation in the Commonwealth where judges saw it as only natural to impose Roman Catholic governing practices on the Episcopal Church. I don’t think they meant to do this explicitly. They did it implicitly–as if this is the only end result that the laws of the land could deliver. The phrase I have used is “More Dopery than Popery”, in reference to the 19th-century term, sometimes considered derogatory, for Catholics who couldn’t be trusted to honor the U.S. Constitution and civil laws because they swore obedience to a foreign power (i.e. the Pope).

(I think if you used the term Popery in ordinary conversation nowadays, it would ring like Scalliwag, Carpetbagger, or “Dry”. No one would know what you’re talking about.)

What has happened is that the Diocese of Pennsylania has adopted the position that they should be given all the powers that a Roman Catholic Diocese has. And in a Catholic diocese, the Bishop is the owner of all the churches, in trust. So if a Roman Catholic bishop wants to go in and make changes to a parish, he simply goes in and does it.

The legal hammer Roman Catholic Pennsylvania judges have employed is something I mentioned called the “deference rule”. The rule is employed in denominations that have some kind of hierarchy. (So this would not be the case in a religion that does not purport to have “levels” of authority.) The deference rule is dicta (not a holding) from a 19th century case, which said:

“[T]he rule of action which should govern the civil courts . . . is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.”

Watson v. Jones, 13 Wall. 679, 727. Pp. 708-712.

I don’t want to rehash an earlier post, but what the Episcopal diocese has done in Judge Ott’s courtroom is say that this rule entitles the diocese to summary judgment—they just get to kick out Father Moyer and the vestry who support him.

I keep following this case because I know every public detail about it. And it dovetails with one of the truisms of Pennsylvania civic life: the judges of Pennsylvania, for the most part, suck. Oh, sure, you get lucky here and there. But you’d be better off relying on Trial by Drowning than dealing with a Pennsylvania judge.

(I say, “for the most part”, because there are some truly outstanding people who serve on the bench. It’s not all crap.)

So this is a case where I get to see if there is a diamond in the rough. If you’ve stuck with me this far, you see that the issue is very complicated. It’s not easy to unwind a property issue that also involves religious practice. But the last thing you do is take your own religion as the genesis for what a U.S. Supreme Court rule supposedly means, and then impose your own religious practice onto the case. I have been waiting to see if Judge Ott is going to do this. So far, in over three months, he has not.

This is a good sign for the Rosemonters. It means that the judge is thinking through all the elements of the case. He is considering Pennsylvania property law. He is hopefully incorporating the statute 15 Pa.C.S. section 5107 (canon law governs religious nonprofit corporation). He is realizing that the diocese actually has to prove certain facts that they claim are “undisputed”.

If Stanley Ott rules in favor of the diocese, then that decision threatens every other denomination in Pennsylvania that has a church hierarchy. That opinion would be PDF’ed and crowdsourced all over the place, and I think the judge knows it. So it is much more likely that Rosemont is going to get a favorable opinion. “Favorable” here means that they get to present the evidence for why the diocese has no claim on the property.

I know that David Virtue disagrees with this prediction. But the longer the wait, the more I think you won’t see a ruling for the diocese and a kick-out.

[Update: Do most (judges) suck, or just a large plurality? Maybe it’s a large plurality. It’s kind of the difference between 60-40 and 40-60, when it’s a professional position that you rely on great competence for. Compare it to doctors. If 40% of the doctors were screwing up surgeries or diagnoses from time-to-time, you’d say, “these doctors suck!” They don’t even have to get every surgery wrong–just create enough victims.

Well, that’s what the Pennsylvania court system feels like.

I have the license to take you to one and argue on your behalf. But I’d never do it–I’d feel like I was inviting you to Auntie’s Wheel in the Thunderdome. ]

[Update #2: I hope I’m not confusing anybody about the key issue. In most protestant denominations, the church officers who have power only do so through the consent of the governed. There are rules about what power a church hierarchy has. It isn’t for the Pennsylvania court to make up these rules, but rather to determine what they are within the denomination and respect them. This was the key mistake in Gundlach v. Laister and its progeny. Edmund Pawelec (Philadelphia Orphans’ Court) decided that he was going to determine how parish membership in an Episcopal parish was determined–never mind what the canons and actual denomination rules are.

I walk below a Lutheran church routinely in the town where I live. I know there are Lutheran bishops, but I am sure they are bishops of limited authority (only the authority that was given to them by the collected membership of Lutheranism in America). The Mennonites also have bishops, but they only have the authority that the congregation gives.

You’d hate to think that judges of this state would go all off crazy and give powers to these denomination’s leaders that the denomination itself doesn’t grant.

Then why is it so easy for the Roman Catholic judges like Edmund Pawelec in Philadelphia to do this for the Episcopal Church? ]