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Bar fight

Episcopalians prepare to take their battles to the courtroom

Bar fight
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Bishop William Swing of northern California came out swinging at last month's meeting of the Episcopal House of Bishops in Florida.

He led a group of 28 bishops to set up a 10-member committee of lawyers, bishops, and other leaders to get ready to go to the mat legally. Their task: to prevent congregations or dioceses that leave the Episcopal Church (ECUSA) from taking the church property and assets with them.

He warned of a proliferation of lawsuits about church property that will embroil many more dioceses and bishops. Leaders of the 2.3-million-member denomination privately acknowledge they are bracing for the departure of a large number of conservative congregations and even dioceses opposed to ECUSA's theological liberalism and official embrace of gay causes.

In a trickle that threatens to become a torrent, the exodus has already begun. Some ECUSA churches and clergy have simply walked away from their property, but others are fighting in the courts to keep theirs.

A 1979 church law decreed that church property is held in trust for the local diocese. But under a U.S. Supreme Court directive issued that same year, state law can trump the denomination's in property disputes.

A court in Bishop Swing's neighboring Diocese of Los Angeles recently ruled three churches that pulled out of ECUSA can keep their property (see "Trust busting," Sept. 3). This was in line with a precedent in the California Supreme Court last year that permitted a former United Methodist congregation to keep its property. The ruling shook leaders of hierarchical denominations across the country.

The L.A. case is under appeal; meanwhile, the court has ordered the diocese to reimburse the churches $81,000 for their legal defense costs. Denominational leaders must now think twice before deciding to go after congregations that pull out. In prolonged litigation, legal costs could run well into six digits.

Bishop Swing, who leads 80 ECUSA congregations in northern California, knows what it's like to be clobbered in court. In a widely publicized case in 1983, a California appeals court ruled against him in his diocese's claim to the property of a conservative church in Hayward that had left the denomination in a dispute over doctrine.

On another front, the bishops must contend with legal brush fires involving ECUSA clergy and congregations that don't want to leave, at least not yet.

Late last month, six conservative Connecticut churches, their parish leaders, and five of their priests filed a wide-ranging federal lawsuit against Bishop Andrew Smith, ECUSA's Connecticut diocese, ECUSA presiding bishop Frank Griswold, and even state officials. The suit grew out of actions Bishop Smith took against the clergy and churches during a theological dispute. It seeks redress in a jury trial and unspecified punitive damages.

The dispute centered on the bishop's pro-gay stance and his refusal to grant the six alternative spiritual oversight by a conservative bishop independent of the diocese (see "A good Friday," May 7). He suspended the priests from ministry; one resigned from his church last month, explaining he wanted to spare his parish further hassle, but the others have stayed in place at the request of their parishes.

Among other things, the 67-page complaint alleged violations of the plaintiffs' constitutional rights and of both church and Connecticut law. It detailed a long list of alleged infractions by Bishop Smith. It also alleged Bishop Griswold "aided and abetted" the Connecticut diocese by failing to respond.

Some states, including Connecticut, by statute defer judgment in property disputes to church law, where applicable. The suit alleges this entanglement of church and state violates the Establishment and equal protection clauses of the U.S. Constitution-a troubling prospect for denominational officials across the country if this issue is argued all the way up to the U.S. Supreme Court.

Edward E. Plowman

Ed (1931–2018) was a WORLD reporter. Read Marvin Olasky's tribute.


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