A.S. Haley: New Signs of Trouble for the Dennis Canon

Sunday, September 18, 2011

As readers of this blog are aware, your Curmudgeon is no fan of the Dennis Canon, which I like to call the Episcopal Church (USA)'s Trojan Horse. It has spawned a disproportionate amount of Church property litigation, because it operates by stealth, and springs onto the back of a parish just at the time when it is most vulnerable, having decided to take the final step to disaffiliate from ECUSA. All of a sudden, the Bishop of the Diocese swoops down with his attorneys, and orders the congregation to vacate its building, and leave everything behind, from the altar candlesticks to the bank accounts and pew cushions. "Because you no longer are operating within the Episcopal Church," he says, "Canon I.7.4 [the Dennis Canon] declares that all of your property is now forfeit to the Diocese, since it was always held in trust for this Diocese and the Church."

Such a claimed operation for the Canon comes as a surprise to many congregations who thought that their years of paying for the acquisition, construction and maintenance of their building, plus a deed in their name, meant that they owned it. Furthermore, every State in the United States has a law which says that trusts in real property can be created only by a writing signed by the owner of the property. The Dennis Canon operates in reverse: it purports to create a trust in church property without the owner's signature, and just on the authority of ECUSA's General Convention. As I noted elsewhere, it purports to operate as though, upon you and your spouse's joining the Democratic Party, your house and all your worldly goods become forfeit to the Party should you ever decide to become a Republican.

States such as California and New York are lost causes, however. Although they have the same statute regarding how trusts are created as does every other State, they also have statutes which create special exceptions to that rule for national churches like ECUSA. The exception allows such national churches to create trusts in parish properties unilaterally, without the individual parishes' consent, by providing for such trusts in their governing documents. The highest courts in California and New York have accordingly upheld the validity of Dennis Canon trusts against individual parishes who decided to leave the Episcopal Church (USA).  the rest