|
By Bob Kuhn & Jonathan Maryniuk
WHO OWNS the church?
Just in time for the advent season, a B.C. Supreme Court judge attempted to
answer this question.
Many Anglican congregants in Vancouver and Abbotsford were left uncertain about
where they will worship as a result of his decision. This case creates an
upsetting precedent for local church congregations that clash with their
national denomination over doctrine.
The dispute arose as a consequence of the 2002 decision of the Diocese of New
Westminster, and its bishop, Michael Ingham, to authorize the blessing of
same-sex marriages.
Along with many others, congregants of four Lower Mainland parishes – St. John’s (Shaughnessy), St. Matthias and St. Luke, Good Shepherd Church, and St.
Matthew’s Church – strongly disagreed with Ingham’s decision. In 2008, the parishes overwhelmingly voted to affiliate themselves
with other Anglican groups with which they were more theologically aligned. The
Diocese of New Westminster attempted to take control of parish properties by
freezing their assets and dismissing their elected wardens and trustees.
Mixed decision
The local congregants of these four churches applied for a court order to affirm
that they controlled the church property, and that the diocese wrongfully
removed the trustees.
The court issued a mixed decision, with elements of a win for both the diocese
and the local parishioners.
The first part of Justice Kelleher’s decision was on the church property. He decided that local parishioners have
no property rights to the building in which they worship.
He concluded that the governing documents of the diocese (which was incorporated
by statute) did not allow for the property to be disposed of without the
consent of the diocese.
In other words, a local parish congregation that attempts to ‘leave’ the diocese acts outside the power given to it.
The second portion of the decision related to the independence of parish
trustees appointed to control the local church property. Although local church
property belongs to the diocese, the court decided that a bishop could not
arbitrarily fire trustees elected to manage that property.
In this case, Bishop Ingham, and the Diocese of New Westminster, acted without
legal or canonical authority when they dismissed the dissident trustees.
Doctrine and practice
The court also examined whether the properties were held under a religious
trust, for purposes “consistent with historic, orthodox Anglican doctrine and practice.”
The judge adopted the view of the Anglican Church of Canada by finding that
same-sex marriage was not an issue that engaged fundamental or core doctrine.
In the end, the decision still did not resolve the emotionally charged dispute
between the local congregations and their organizational superiors.
Continue article >>
|
In this case, the trustees of these dissident parishes have for years been
unable to work together with the diocese, and vice versa. Since the diocese
cannot simply remove the trustees who manage the parish, nor can the parish
choose to separate from the diocese, the stalemate continues.
As a result, unless one side gives up, the local parishes and their regional
diocese may be forced to compromise and work together despite their doctrinal
differences.
A question of principle
In practice, however, concord may not be so easily accomplished. Doctrinal
issues are often a question of principle, of truth. Unlike the election of
trustees, the issue of doctrine is not determined democratically. Rarely will a
party in a church dispute be willing to compromise on matters that are
considered to be, in essence, truth.
This case demonstrates that local churches are often ill prepared to deal with
doctrinal disagreements. Churches must fully understand how their church
property is legally owned, controlled and managed. They should also be aware of
the extent that their denominational hierarchy can control and manage a church’s local operations.
Local churches would be well served to ensure their governing documents have
dispute resolution clauses, where appropriate, as well as clearly defined
procedures to manage doctrinal and other disputes between themselves and their
regional overseers.
If the rules governing disputes are unfair, or not clearly defined or
understood, parties may be forced to look to the courts, an institution
ill-equipped to define ‘fundamental doctrine.’ Judges called upon to determine ‘truth’ for a church venture into jurisdictions far outside of their expertise.
As the Anglican decision shows, a court cannot, and maybe should not, always
seek to solve a spiritual stalemate.
After all, who does own the church?
Bob Kuhn is a lawyer with Kuhn and Company. Jonathan Maryniuk is an articling
student with the firm.
January 2010
|
