Rector, Wardens and Vestrymen of Christ Church In Savannah v. Bishop of the Episcopal Diocese of Georgia, Inc.

This case involves a dispute over control of property belonging to the oldest church in Georgia, Christ Church in Savannah ("Christ Church”), with a history spanning almost three centuries. As with so many hierarchical church property disputes that end up in court, this case had its genesis in doctrinal positions taken by the general denomination – the Protestant Episcopal Church in the United States of America ("Episcopal Church”) – that were opposed by a majority faction of the local congregation. In March 2006, the leadership of the majority faction, which calls itself "Christ Church in Savannah” or CCS, voted to sever Christ Church's 180-year-old ties with the Episcopal Church and the Episcopal Diocese of Georgia ("Georgia Diocese”) without advance notice to the Bishop of the Georgia Diocese. CCS took control of the church property, and in September 2007, the congregation voted to denounce the Episcopal Church and join the Diocese of Soroti in the Anglican Province of Uganda.



The minority faction, which remained loyal to the Episcopal Church, had to find another place to worship. The Georgia Bishop recognized the minority faction, which calls itself "Christ Church Episcopal” or CCE, as the true Christ Church entitled to control of the church property. The Bishop also recognized the rector, wardens, and vestry elected by the minority faction as the rightful leaders of Christ Church. However, CCS refused to surrender the church property.



On November 14, 2007, the Georgia Diocese filed suit against the Rector, Wardens, and Vestrymen of Christ Church in Savannah and the individuals holding those positions (collectively, "CCS”), seeking injunctive relief, damages, and a declaratory judgment that all property of Christ Church is held in trust for the Episcopal Church. The trial court allowed the Episcopal Church to intervene as an additional plaintiff, as well as Christ Church Episcopal and the Rector, Wardens, and Vestry of Christ Church Episcopal (collectively, "CCE”). The parties filed cross-motions for summary judgment.



Applying the "neutral principles of law” doctrine approved by the U.S. Supreme Court in Jones v. Wolf, 443 U.S. 595, 602-606 (99 SC 3020, 61 LE2d 775) (1979), and applied in several of this Court's cases, the trial court granted summary judgment in favor of the Episcopal Church, the Georgia Diocese, and CCE. The Court of Appeals affirmed. See Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of Episcopal Diocese of Georgia, Inc., 305 Ga. App. 87 (699 SE2d 45) (2010) ("Christ Church v. Bishop”). Both the trial court and the Court of Appeals relied in part on OCGA §§ 14-5-46 and 14-5-47 in concluding that the property of Christ Church is impressed with an implied trust in favor of the Episcopal Church.



We granted CCS's petition for certiorari to decide whether the trial court and the Court of Appeals erred in applying the neutral principles doctrine, particularly with respect to OCGA §§ 14-5-46 and 14-5-47. As explained below, although those courts may have erred to some extent in their reliance on OCGA §§ 14-5-46 and 14-5-47, they correctly concluded that neutral principles of law show that the property of Christ Church at issue is held in trust for the benefit of the Episcopal Church.1



1. The parties agree that the Episcopal Church is a hierarchical



We 1 note that amicus briefs have been filed in this case by the American Anglican Council, the Becket Fund for Religious Liberty, the Church of God, the Greek Orthodox Metropolis of Atlanta, Inc., the Presbyterian Lay Committee, and the South Georgia Annual Conference of the United Methodist Church, Inc. religious denomination with a three-tiered, representative form of government. At the top is a General Convention that meets at least once every three years, which consists of a House of Bishops (essentially all active and retired bishops) and a House of Deputies (four lay delegates and four non-bishop clergy elected by each diocese). Church canons, or laws, must be approved by both houses and are then binding on the Episcopal Church and all of its subdivisions. The middle tier is composed of geographically defined dioceses, each of which is governed by an annual diocesan convention, a bishop, and an elected standing committee. At the lowest tier are parishes, which must associate with the diocese where they are located and must agree to be bound by the constitution and canons of the diocese and the Episcopal Church. Each parish congregation is led by a rector elected by the wardens and vestry or directly by the congregation; the rector must then be approved by the bishop. Parishes elect the wardens and vestry as well as representatives to the diocesan convention. The parties also agree that legal title to the property of Christ Church at issue is held by the corporate entity known as "The Rector, Church Wardens and Vestrymen of Christ Church in Savannah.” See Wardens & Vestrymen of Christ Church v. Mayor & Aldermen of Savannah, 82 Ga. 656, 656 (9 SE 537) (1889) ("Christ Church v. Savannah”). The question presented is who controls that property.



As we recently reiterated, secular courts may resolve church property disputes. See Timberridge Presbyterian Church, Inc. v. Presbytery of Greater Atlanta, Inc., ___ Ga. ___, ___ (___ SE2d ___) (Case No. S11G0587, decided Nov. 21, 2011, slip op. at 10-11) ("Timberridge”). To avoid First Amendment concerns, Georgia courts apply "neutral principles of law” to determine whether the local congregation or the parent, or general, church in a hierarchical denomination like the Episcopal Church has the right to control local church property, while avoiding any inquiry into religious doctrine. See Jones, 443 U.S. at 602-606; Carnes v. Smith, 236 Ga. 30, 35-39 (222 SE2d 322) (1976) (following the "neutral principles of law” approach instead of the "formal title” approach advocated by the dissent).2 These neutral principles include deeds and 2 Not all states follow this approach, nor are they constitutionally required to do so. After Jones, state courts appeared to choose between the two United States Supreme Court methodologies. Currently, twenty states and the District of Columbia follow the neutral principles of law approach, nine states follow the hierarchical approach [which simply defers to the decision of the higher authorities within the church], eight follow a hybrid of the two approaches and thirteen are undecided, apparently because they have not been presented with the issue.



Episcopal Church in the Diocese of Conn. v. Gauss, 28 A3d 302, 313 n.11 (Conn. 2011, 2011) (citing a survey current through 2008). other instruments of title, state statutes, and documents regarding local and general church government. See Jones v. Wolf, 443 U.S. at 602-606; Timberridge, ___ Ga. at ___ (slip op. at 10).



In our review of these materials, we keep in mind that the outcome of church property disputes usually turns on the specific facts presented in the record and that the neutral principle factors are interrelated. See Timberridge, ___ Ga. at ___ (slip op. at 11). Our ultimate goal is to determine "'the intentions of the parties' at the local and national level regarding beneficial ownership of the property at issue as expressed 'before the dispute erupt[ed]' in a 'legally cognizable form.'” Id. at ___ (slip op. at 11) (quoting Jones v. Wolf, 443 U.S. at 603, 606).3



(a) Title Instruments.



This case focuses on four parcels of real estate conveyed to "The Rector, Church Wardens and Vestrymen of Christ Church in Savannah” and their predecessors over the course of nearly three centuries. Christ Church acquired title to the church building parcel now known 28 Bull Street by land grants from the royal government in 1758 and the post-Revolution state government in 1789. Indentures conveyed fee simple interests in the parish house parcel at 18 Abercorn Street in 1940; the first part of the school parcel at 134 Houston Street in 1947; and the parcel containing the two parking lots at the corner of Congress and Drayton Streets in 1994. The remainder of the school parcel was conveyed by warranty deed in 1958.



Although Jones v. Wolf speaks mainly of "deeds” and "conveyances” of the sort at issue in that case, see 443 U.S. at 597, 600-601, 603, 606, 609, we understand the first neutral principle to be examination of whatever legal instruments of title were used to transfer the property at issue. See id. at 603 n.3 (referring to the "'express terms' of a deed, will, or other instrument of church property ownership” (quoting Watson v. Jones, 80 U.S. at 722)).4 We agree with the trial court and the Court of Appeals that none of the title instruments in this case create a trust in favor of the Episcopal Church. See Christ Church v. Bishop, 305 Ga. App. at 89-90. But they also do not preclude the creation of one. See Timberridge, ___ Ga. at ___ (slip op. at 12). The Rector, Church Wardens and Vestrymen of Christ Church in Savannah, like other legal titleholders in fee simple, had the authority to place its property in trust or to act in ways that would impress a trust on the property. Given that the instruments of title neither include nor prohibit a trust in favor of the general church, they have a limited role in the neutral principles analysis in this case, and so we turn to consideration of other neutral principles. See id.



(b) Statutes.



(1) OCGA §§ 14-5-46 and 14-5-47. OCGA § 14-5-46, which is entitled "Conveyances to churches or religious societies confirmed,” provides:



All deeds of conveyance executed before April 1, 1969, or thereafter for any lots of land within this state to any person or persons, to any church or religious society, or to trustees for the use of any church or religious society for the purpose of erecting churches or meeting houses shall be deemed to be valid and available in law for the intents, uses, and purposes contained in the deeds of conveyance. All lots of land so conveyed shall be fully and absolutely vested in such church or religious society or in their respective trustees for the uses and purposes expressed in the deed to be held by them or their trustees for their use by succession, according to the mode of church government or rules of discipline exercised by such churches or religious societies.



When a conveyance that falls within § 14-5-46 is made to trustees, OCGA § 14- 5-47 also applies:



All trustees to whom conveyances are or shall be executed, for the purposes expressed in Code Section 14-5-46, shall be subject to the authority of the church or religious society for which they hold the same in trust and may be expelled from said trust by such church or society, according to the form of government or rules of discipline by which they may be governed.



The trial court and the Court of Appeals held that OCGA §§ 14-5-46 and 14-5-47 apply to Christ Church's property and support the conclusion that the property is subject to a trust in favor of the Episcopal Church due to "the mode of church government [and] rules of discipline” of the Episcopal Church and the Georgia Diocese. See Christ Church v. Bishop, 305 Ga. App. at 90-92. CCS offers at least eight arguments why these two statutes, which date back more than two centuries, see Ga. Laws 1805, pp. 15-16, are inapplicable by their terms, purpose, or historical context.5



One or more of CCS's arguments against directly applying §§ 14-5-46 and 14-5-47 to some or all of the property at issue in this case may have merit. However, as we recently explained, this Court has repeatedly referred to these statutes and their predecessors in resolving church property disputes based on the neutral principles doctrine, even where the text of the statutes did not squarely apply. See Timberridge, ___ Ga. at ___ (slip op. at 13-15) (citing Holiness Baptist Assoc. v. Barber, 274 Ga. 357, 358-359 (552 SE2d 90) (2001); Crumbley v. Solomon, 243 Ga. 343, 344-345 (254 SE2d 330) (1979); and Carnes, 236 Ga. at 37-38).



We have treated §§ 14-5-46 and 14-5-47 and their predecessors as expressing this State's policy of looking to "the mode of church government or rules of discipline” in resolving church property disputes – a policy fully consistent with Jones v. Wolf's focus on local and general church governing documents as an important neutral principle. See Timberridge, ___ Ga. at ___ (slip op. at 15) (citing Jones v. Wolf, 443 U.S. at 602-606). See also Barber, 274 Ga. at 359; Jones v. Wolf, 244 Ga. 388, 389 (260 SE2d 84) (1979) ("Jones II”) (on remand from the U.S. Supreme Court, "applying [the predecessors to OCGA § 14-5-46 and 14-5-47] to the present litigation” by looking to "church documents” to the extent they assist in determining "which persons have the right to enjoy and to use the church property in the event of a schism at the local level”); Carnes, 236 Ga. at 38 (stating broadly that "Code Ann. § 22-5507 [now § 14-5-46] recognizes and validates deeds conveying land for church purposes according to the limitations set out in the deed and for use 'according to the mode of church government or rules of discipline'”). Thus, although the Court of Appeals and the trial court may have erred in reading these statutes as applying directly to all of the property at issue, we need not decide that issue or the portion of our certiorari question that posed it, as there was no error under our precedent or Jones v. Wolf in looking to "the mode of church government or rules of discipline” in applying neutral principles in this case, as indeed we will do below.



(2) OCGA § 53-12-20.



CCS and the dissent point to Georgia's generic express trust statute, OCGA § 53-12-20, as proof 6 that there is no trust over the property of Christ Church in favor of the Episcopal Church. As we explained in Timberridge, however, requiring strict compliance with § 53-12-20 to find a trust under the neutral principles analysis would be inconsistent with the teaching of Jones v. Wolf that the burden on the general church and its local churches to provide which one will control local church property in the event of a dispute will be "minimal.” 443 U.S. at 606. In this regard, the dissent in Jones expressed concern that the neutral principles doctrine would unconstitutionally interfere with the free exercise rights "of those who have formed the association and submitted themselves to its authority.” Jones, 443 U.S. at 618 (Powell, J., dissenting). But the Court rejected that concern in this important passage:



Nothing could be further from the truth. The neutral-principles approach cannot be said to "inhibit” the free exercise of religion . . . . Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. Jones, 443 U.S. at 606 (emphasis added).



Thus, while local churches may modify their deeds, amend their charters, or draft separate legally recognized documents to establish an express trust as set forth in OCGA § 53-12-20, that is not the only way the parties can ensure that local church property will be held in trust for the benefit of the general church. Jones v. Wolf said that it may also be done through the general church's governing law, for example, by making it "recite an express trust.” 443 U.S. at 606. As we recognized in Timberridge, if hierarchical denominations like the Episcopal Church (and many others) must fully comply with § 53-12-20 to enable the general church to retain control of local church property in the event of a schism and disaffiliation of a majority faction of a local congregation, then an enormous number of deeds and corporate charters would need to be examined and reconveyed or amended. See Timberridge, ___ Ga. at ___ (slip op. at 17-18). The burden on the general churches, the local churches that formed the hierarchical denominations and submitted to their authority, and their members' free exercise of religion would not be minimal but immense. See id. at ___ (slip op. at 18-19). That is not how the Jones v. Wolf Court envisioned that the neutral principles doctrine would be applied in conformity with the First Amendment.



Nor is the approach proposed by CCS and the dissent consistent with this Court's many cases deciding that the local church held its property in trust for the general church with no mention of § 53-12-20 or evidence of compliance with its terms. See, e.g., Timberridge, ___ Ga. at ___ (slip op. at 19); Kemp v. Neal, 288 Ga. 324, 326-329 (704 SE2d 175) (plurality); Barber, 274 Ga. at 358- 359; Crumbley, 243 Ga. at 344-345; Carnes, 236 Ga. at 37-38. Even the dissents in those cases did not rely on § 53-12-20. As we said in Timberridge, "[i]f compliance with § 53-12-20 were necessary to create a trust in favor of a national church, those cases could not have been decided as they were.” ___ Ga. at ___ (slip op. at 19). In addition, until Timberridge discussed this point, see id., our numerous church property cases either made no mention of the generic implied trust statutes, now OCGA § 53-12-90 to 53-12-93, see, e.g., Kemp, 288 Ga. at 326-329 (plurality); id. at 331-334 (Carley, P.J., dissenting in part); Barber, 274 Ga. at 358-359; Crumbley, 243 Ga. at 344-345, or explained that the requirements of those statutes were not met, see Carnes, 236 Ga. at 37- 38 – and yet the Court still concluded that the local church property was held in trust for the general church.



This case, like previous cases, involves a trust implied under neutral principles of law, even though one aspect of that analysis is consideration of trust language expressly included in the documents establishing the governmental rules of the general church. See, e.g., Barber, 274 Ga. at 359 ("implying a trust” for the benefit of the general church where its discipline expressly provided that the general church "shall hold all church property”). In short, the fact that a trust was not created under our State's generic express (or implied) trust statutes does not preclude the implication of a trust on church property under the neutral principles of law doctrine. See Timberridge, ___ Ga. at ___ (slip op. at 20); Kemp, 288 Ga. at 326-329 (plurality); Barber, 274 Ga. at 358-359; Crumbley, 243 Ga. at 344-345; Carnes, 236 Ga. at 37-38. Accord Bishop & Diocese of Colorado v. Mote, 716 P2d at 100 (explaining that Jones v. Wolf "did not restrict the inquiry to a search for explicit language of express trust” (emphasis in original)). Indeed, in discussing the neutral principles approach, the Jones v. Wolf Court focused on "the state statutes governing the holding of church property,” 443 U.S. at 603 (emphasis added), of which OCGA §§ 14-5-46 and 14-5-47 are the most prominent in Georgia's code.7



Our many 7 church property decisions also do not mention the litany of other generic statutes cited by the dissent, see, e.g., Dis. Op. at 63-68, nor did any party in this case argue that those statutes were relevant, much less controlling. The dissent's repeated claim that we have somehow created "a new type of implied trust,” Dis. Op. at 3, 5, 27, 44, 51, 54-55, 88-89, similarly disregards the prior decisions of this Court.



(c) Local and National Church Documents.



The final neutral principle this Court has normally examined is the governing documents of the local and general churches. "The neutral-principles method, at least as it has evolved in Georgia, requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church.” Jones v. Wolf, 443 U.S. at 604 (emphasis added). See Carnes, 236 Ga. at 39 (explaining that "'[a] local church . . . cannot . . . enter a binding relationship with a parent church which has provisions of implied trust in its constitution, by-laws, rules, and other documents pertaining to the control of property, yet deny the existence of such relationship'” (citation omitted)). Like other courts, see, e.g., Jones v. Wolf, 443 U.S. at 604 (discussing the corporate charter of the local church and the constitution of the general church), this Court has examined, always in purely secular terms, the general and local church's governmental rules set forth in documents labeled in various ways. See, e.g., Timberridge, ___ Ga. at ___ (slip op. at 20-28) (examining the Articles of Incorporation of the local church corporation and the Book of Order of the parent church); Georgia Dist. Council of Assemblies of God, Inc. v. Atlanta Faith Mem. Church, Inc., 267 Ga. 59, 60-61 (472 SE2d 66) (1996) (reviewing the bylaws of the general denomination); Crumbley, 243 Ga. at 343-344 (reviewing the Disciplinary Rules of the parent church); Jones v. Wolf, 241 Ga. 208, 211 (243 SE2d 860) (1978) (discussing "documents of church government”), vacated on other grounds, 443 U.S. at 609-610; Carnes, 236 Ga. at 37 & n.16 (reviewing the Book of Discipline of the parent church and noting that the corporate charter of the local church would have been relevant of the local church had one).8



Indeed, because the relevant title instruments are often inconclusive and statutes may not be directly applicable, most of our church property cases have ultimately relied on such governing documents to resolve the dispute. See, e.g., Timberridge, ___ Ga. at ___ (slip op. at 20-28); Crumbley, 243 Ga. at 345 ("In recent years this court has looked consistently to the requirements of the church discipline in hierarchical denominations to avoid offending the prohibitions of the First Amendment.”). But this should come as no surprise, given that our task is to discern the "'the intentions of the parties' at the local and national level regarding beneficial ownership of the property at issue as expressed 'before the dispute erupt[ed]' in a 'legally cognizable form.'” Timberridge, ___ Ga. at ___ (slip op. at 11) (quoting Jones v. Wolf, 443 U.S. at 603, 606). One would expect those intentions to be revealed in the formal documents that memorialize the relationship between the local and general churches and their property-related rules, as well as the parties' course of conduct under those governing documents.



In this case, it is most revealing (although unfortunately not most succinct) to review the local and general church documents as they were created, amended, and followed over the course of the quarter millennium that Christ Church interacted with a parent denomination before the dispute underlying this lawsuit arose. As the trial court and the Court of Appeals similarly concluded, our review demonstrates that Christ Church has submitted to the authority of the parent church for all of its existence except for the Revolutionary War and subsequent interregnum when Christ Church was actively seeking a new parent church. Moreover, the parent church has always had control over local church property, with that control becoming more and more explicit in the "legally cognizable form” of the Episcopal Church's governing canons, culminating in an express property trust provision (the "Dennis Canon”) in 1979, just after the Jones v. Wolf decision invited hierarchical churches to clarify property control with such a provision. See Kemp, 288 Ga. at 328 (plurality) (noting that legal commentators have observed that "hierarchical churches, taking their cue from a concurrence in [a 1969 case] and instruction given by the United States Supreme Court in Jones v. Wolf, . . . amended church constitutions in the 1970s and 1980s to include a provision that local churches hold their property in trust for the use and benefit of the general church.” (citations and footnote amended)).



Christ Church repeatedly pledged its unequivocal adherence to the discipline of the parent church, including when it organized the Georgia Diocese of the Episcopal Church in 1823 and in its formal corporate Articles of Amendment filed with the State of Georgia in 1918 and its Articles of Incorporation filed in 1981 – two years after the Dennis Canon was enacted. And the record shows that at all times during the 180 years before this dispute began, Christ Church acted consistently with the Episcopal Church's canons regarding its property, demonstrating the local church's understanding that it could not consecrate, alienate, or encumber – much less leave with – its property without the consent of the parent church.9



(1) Founding of Christ Church through the Revolution.



The church building parcel was originally given to Christ Church in 1733 by the trustees of the Georgia colony, to be part of the Church of England under the jurisdiction of the Bishop of London. In 1750, Christ Church's sanctuary was finished and dedicated as a church by its rector, who was an ordained Church of England priest.10



In 1758, the colonial government passed a law establishing the Church of The dissent says 9 that we are relying on the "opinion” of a church historian. See, e.g., Dis. Op. at 5, 15-19. We do no such thing. What is relevant is not "church history” in general or someone's opinion about legal questions like whether a trust existed at some point in time. What matters is the specific and undisputed evidence about the governing documents of the general and local church and the parties' course of conduct in relation to those documents before the factional dispute arose – which in this case is an extended history. Notably, the dissent identifies no contrary evidence in the regard regarding these material issues.



On this point and regarding the case as a whole, the dissent contends that summary judgment is inappropriate. See, e.g., id. at 95-101. However, the facts about the documents examined under the neutral principles doctrine – i.e., the material facts – are not disputed, and whether a trust on the local church property in favor of the general church is determined to exist when that doctrine is applied to those facts is a legal determination. As we explained in Timberridge, ___ Ga. at ___ n.7 (slip op. at 29 n.7), because the neutral principles analysis focuses on documents, summary judgment will often be proper in these cases, as it has been in most of this Court's and other courts' church property cases since Jones v. Wolf – which, we note, was itself a summary judgment case from Georgia. See Jones II, 244 Ga. at 389 (affirming, on remand from the U.S. Supreme Court, the trial court's judgment for the local church based on the neutral principles doctrine).



England as the official religion of the colony and dividing the Georgia colony into eight "parishes” to serve as both the civil and ecclesiastical government for their inhabitants, with Christ Church named as the first parish. The same 1758 act incorporated Christ Church and vested its property "and also all other lands, tenements, and heriditaments, as shall or may hereafter be given and granted to the said church” in the rector of Christ Church and his successors.



The American Revolution severed Christ Church's legal connection to the Church of England and its head, King George III. Georgia's first post- Independence constitution, adopted in 1777, abandoned the parish system, calling them "counties” instead of "parishes,” combining some and reconfiguring others, and substituting secular names like "Chatham County” and "Liberty County” for religious appellations like "Christ Church Parish” and "Saint Paul Parish.” However, Christ Church's prior status as a subordinate member of the established church aided it in retaining legal title to the church building parcel instead of having it revert to the State of Georgia after the war.



See Christ Church v. Savannah, 82 Ga. at 662-666.



(2) Revolution to 1823.



After the Revolution, former Church of England congregations in the United States were called "episcopal” churches. In October 1789, episcopal congregations in nine of the American states (but not Georgia) sent delegations of clergy and lay members to an assembly in New York. The delegations formed a General Convention and adopted a constitution and canons organizing the Protestant Episcopal Church in the United States of America as the successor to the Church of England for the orphaned episcopal churches in the United States. Article II of the 1789 constitution guaranteed each state in union with the Episcopal Church the right to representation at the denomination's triennial General Conventions but also provided that if a state delegation sent no representatives, "the Church in such State shall nevertheless be bound by the acts of such Convention.” Article V stated that "A Protestant Episcopal Church in any of the United States, not now represented, may, at any time hereafter, be admitted, on acceding to this Constitution.” Canon III required regular visits by an Episcopal Church bishop to all parishes within his geographically defined jurisdiction "for the purpose[] of examining the state of his church.” (Emphasis added.)



Just two months after the Episcopal Church was organized in October 1789, the Georgia General Assembly enacted a statute incorporating Christ Church as "the episcopal church in Savannah.” The 1789 Act gave Christ Church both the ability to own property and ownership of the property it had held as a parish of the Church of England, as one of the "new corporations of the Episcopalian denomination.” Christ Church v. Savannah, 82 Ga. at 664.11



Although unable at the time to affiliate formally with the Episcopal Church because Georgia did not yet have the three active episcopal churches needed to form a state diocese, Christ Church placed itself under the authority of the Episcopal Bishop of South Carolina.



In 1811, Christ Church attempted to achieve formal union with the Episcopal Church even though Georgia still lacked the three episcopal churches needed to organize a state diocese. Christ Church sent its rector, an ordained 11 See id. at 664-665 ("We think that the [1789] grant, to new corporations of the Episcopalian denomination, of property which formerly belonged to local bodies of the established church [i.e., the Church of England], is to be regarded less as an assertion of title in the State to such property than as a recognition of continuous ownership in such local bodies, the new corporations being, as a general rule, created at church request and for church benefit.”). The dissent's invocation of Justice Hugo Black's classic rendition of American history leading to the First Amendment is ironic. See Dis. Op. at 19-23 & n.1 (quoting Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 8-16 (67 SC 504, 91 LE 711) (1947)). The church property in this case was not donated by citizens struggling against a "monolithic” state-established church. To the contrary, the main property at issue – the church building parcel – was given by the government to Christ Church precisely because the local church was part of the established general church of the time. There is no evidence suggesting that, had Christ Church been a dissenters' congregation, it would have acquired the main property that the current dissenters now claim to control. Moreover, Justice Black favorably cited Watson v. Jones, see Everson, 330 U.S. at 14 – the case that endorsed the pre-Jones v. Wolf approach of avoiding First Amendment entanglements in resolving property disputes in hierarchical churches by simply deferring to the decision of the general church's ecclesiastical authorities. Under that approach, the Episcopal Church would also prevail in this case.



Episcopal Church priest named John Bartow, to the General Convention in Connecticut with certificates authorizing him to attend as a representative of the "Episcopal Church in the city of Savannah.” The General Convention decided that Rev. Bartow could not be seated as a voting member because a Georgia diocese had not yet been organized, but it did seat him as an honorary member. In 1790, the Episcopal Church had formulated a consecration rite for church buildings, which required the leaders of the local church to present to the bishop, in front of the congregation, "the instruments of donation and endowment” for the property. In 1815, Christ Church finished the reconstruction of its sanctuary, which had been destroyed, and invited the Episcopal Bishop of South Carolina to consecrate its new sanctuary in accordance with the Episcopal Church's rite. In 1822, Rev. Abiel Carter, another ordained Episcopal Church priest, became the rector of Christ Church. Christ Church's efforts to organize a Georgia Diocese culminated in 1823 with the first diocesan convention.12 Rev. Carter chaired the convention, and three of the five lay delegates came from Christ Church. The convention unanimously adopted a diocesan constitution, the preamble to which stated that nothing in it "shall be so construed, as to contravene any part of the Constitution or Canons, of the Protestant Episcopal Church, in the United States of America.”



The first article then stated,



The several congregations of the Protestant Episcopal Church in this State, now represented in this Convention, shall be considered as one Church or Diocess [sic]; to be known and designated by the name of the "Protestant Episcopal Church in the State of Georgia,” with a view to an Union with the Protestant Episcopal Church in the United States of America.



The convention chose seven delegates to attend the 1823 Episcopal Church General Convention and passed a resolution inviting the Bishop of South Carolina "to perform Episcopal offices in this State under the regulations prescribed by the 20th canon” of the Episcopal Church relating to provisional bishops.



At the 1823 General Convention, the Episcopal Church accepted the Georgia Diocese's accession, formally making the Georgia Diocese and its parishes, including Christ Church, components of the Episcopal Church. Accordingly, after the 1823 General Convention, the Georgia churches attending diocesan conventions referred to themselves as "parishes” instead of "congregations” and gave "parochial” reports.



(3) 1823-1923.



Over the next century, the general church adopted additional canons that increased its formally expressed control over local church property. Christ Church not only abided by these canons but again confirmed, with a 1918 charter amendment, its accession to the constitution and canons of the Episcopal Church.



In 1839, the Georgia Diocese amended its constitution to confirm that it, "as a constituent part of the Protestant Episcopal Church of the United States of America, accedes to, recognizes, and adopts the General Constitution of that Church, and acknowledges its authority accordingly.” Georgia still lacked its own bishop, however, so in 1840 Christ Church again invited the Episcopal Bishop of South Carolina perform the consecration rite for a new sanctuary, which again involved presenting him "the instruments of donation and endowment” for the property. In 1842, the diocese adopted a canon requiring all future Georgia parishes to adopt Articles of Association confirming that, like the original parishes, they "accede to the Constitution, Canons, doctrines, discipline and worship of the Protestant Episcopal Church in the United States, and the Constitution and Canons of the Diocese of Georgia.”



In 1868, the Episcopal Church adopted a canon expressly prohibiting parishes from encumbering or alienating consecrated property without the consent of the Bishop and diocese. 13 In the early 1870's, a dispute arose within the denomination over certain theological teachings and liturgical practices, and between 90 and 100 parishes voted to sever their ties with the Episcopal Church. However, only two of the departing congregations (one in Illinois and the other in Kentucky) attempted to retain control of the parish property, and only one succeeded.14



In response to these events, in 1871 the 1868 canon was revised to emphasize that consecrated properties should be "secured by the terms of the devise, or deed, or subscription by which they are given, from the danger of alienation from those who profess and practice the doctrine, discipline, and worship of the Protestant Episcopal Church in the United States of America.” The Georgia Diocese also adopted a canon in 1870 that directed the Georgia Bishop to take control of the property of parishes that ceased reporting to the diocese if not restored to good standing.15



In 1904, the General Convention adopted a canon providing that the rector of a parish, "subject to . . . the Canons of the Church, . . . shall, at all times, be Illinois Supreme Court nevertheless ruled in favor of the local church. The court based its ruling on overwhelming evidence that the founders of that congregation and the donors who gave the property at issue consulted with an attorney and then deliberately structured the transaction to ensure that the property would be controlled solely by the local church with no interference from the bishop of the diocese, as well as features of the Illinois statutes on incorporation of churches not found in Georgia law. See Calkins v. Cheney, 92 Ill. 463, 472-477, 480 (1879 WL 8549) (1879). Kentucky's highest court ruled in favor of the Episcopal Church based on the 1868 canon, its 1871 amendment, and the local church trustees' invitation to the bishop to consecrate the church building and dedicate it for, among other things, "'the performance of all . . . holy offices according to the order of the Protestant Episcopal Church in the United States of America,'” despite the absence in the deed of explicit trust language in favor of the Episcopal Church. Merriweather v. Petit, 10 Ky. Op. 113, 114 (1878 WL 7605) (Ky. 1878). Both of these decisions are consistent with ours today.



The 1870 Georgia 15 diocesan canon provided that if, for three years, a parish failed to elect a vestry or make parochial reports, the bishop, unless he found the reasons for these failures satisfactory, was required to report the fact to the diocesan convention, and the parish's union with the diocese would cease if the parish had not been revived by the next annual diocesan convention.



The canon further provided that in the event the parish was not revived, "[i]t shall be the duty of the Bishop . . . to preserve the property of such parishes for the benefit of the Church.” entitled to the use and control of the Church and Parish buildings, with the appurtenances and furniture thereof.” And in 1916, the Episcopal Church adopted a canon requiring each diocese to establish a finance committee to ensure that adequate insurance was maintained on all church property, which was amended a few years later to impose even greater diocesan monitoring of parish finances.



After all these additions to the denomination's governing documents explicitly increasing the general church's control over the property of local parishes, Christ Church again formally expressed its allegiance to the Episcopal Church, the Georgia Diocese, and their rules. In 1918, Christ Church filed an amendment to its 1789 legislative charter in the Chatham County Superior Court. The amendment stated that "[t]his church does hereby acknowledge and accede to . . . the Constitution and Canons of the Protestant Episcopal Church in the United States of America, and the Constitution and Canons of the same church in the Diocese of Georgia,” which included the canons discussed above.



The amendment also changed "[t]he corporate name and style of this church” to "The Rector, Church Wardens and Vestrymen of Christ Church in Savannah” and authorized the adoption of "rules or by-laws not inconsistent with the civil and ecclesiastical laws” governing the church. Christ Church amended its legislative charter again in 1923 to increase the size of its vestry, without altering its accession to the discipline of the Episcopal Church.



(4) 1923-1981.



For the next 60 years, Christ Church continued to follow the constitution and canons of the Episcopal Church and the Georgia Diocese as they continued to increase the explicit control of the general church over the property of local churches like Christ Church, culminating in the enactment of the Dennis Canon in 1979. Far from indicating any disagreement with these canons, Christ Church repeated its accession to them in 1981, when it filed its 1789 charter, as amended in 1918 and 1923, with the Georgia Secretary of State.



In 1940, the parish house parcel at 18 Abercorn Street was conveyed to Christ Church by indenture. The same year, the Episcopal Church General Convention enacted the following canon extending the requirement of diocesan approval of the encumbrance or alienation of consecrated property to all real property held by a parish:



No Vestry, Trustee, or other Body authorized by civil or canon law to hold, manage, or administer real property for any parish, mission, congregation or institution, shall encumber or alienate the same or any part thereof . . . without the written consent of the Bishop and Standing Committee of the Diocese . . . of which the parish, mission, congregation or institution is a part, except under such regulations as may be prescribed by canons of the Diocese.



In 1942, the Georgia Diocese, following the General Convention's lead, adopted a canon providing that "[n]o indebtedness shall be incurred by a parish, mission, or congregation without the approval of both the Bishop and Standing Committee,” subject to certain exceptions not relevant here.



In November 1947, five years after these express limitations on control of even unconsecrated parish property took effect, Christ Church took title to the first part of the school property at 134 Houston Street. In 1948, the Georgia Diocese adopted a canon requiring all prospective church wardens and vestry members to take an oath confirming their "hearty assent and approbation to the doctrine, worship, and discipline of the Protestant Episcopal Church in the United States of America.” Ten years later, in September 1958, Christ Church obtained the rest of rest of the school property. In 1978, Christ Church sought and received the consent of the Georgia Bishop and the Standing Committee before selling church property on Washington Avenue, as required by the Episcopal Church and diocesan canons.



On July 2, 1979, the U.S. Supreme Court decided Jones v. Wolf, which approved the "neutral principles” approach to resolving church schism and property disputes in a case arising out of Georgia. See 443 U.S. at 602-606. As discussed previously, in rejecting the dissent's argument that courts should continue simply to defer to the rulings of hierarchical church authorities in resolving church property disputes, the Jones v. Wolf Court said:



Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.



Id. at 606 (emphasis added).



Two months later, at the Episcopal Church's 1979 General Convention, the House of Bishops passed the following resolution:



Whereas, the Episcopal Church is an hierarchical church, in which local parish churches are a part of, and are subject to, the Constitution and Canons of the Episcopal Church and of the Diocese in which they are geographically present; and



Whereas, the Episcopal Church recognizes that local parishes have broad autonomy in the use of their property, so long as they act within the confines of the Constitution and Canons of the Episcopal Church and of the Diocese in which they are geographically present; therefore be it



Resolved, the House of Deputies concurring, That Title I, Canon 6 of the Canons of the Episcopal Church, be amended to add a Section 4 as follows:



Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission on Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.



And be it further



Resolved, the House of Deputies concurring, That Title I, Canon 6 be amended to add a Section 5 as follows: Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no action shall be necessary for the existence and validity of the trust.



The House of Bishops also passed a resolution to amend Title II, Canon 7 by adding the following new section:



Sec. 3. Any dedicated and consecrated Church or Chapel shall be subject to the trust declared with respect to real and personal 34 property held by any Parish, Mission, or Congregation, as set forth in Section 4 of Title I, Canon 6.



The House of Deputies approved the resolutions, which took effect immediately. These amendments are collectively known as the "Dennis Canon.” Judge Perry Brannen, Jr. of Christ Church served as a lay delegate to the 1979 General Convention. The Dennis Canon was distributed in writing to the delegates to the next annual Georgia Diocesan convention in 1980, which was attended by delegates from Christ Church. In addition, the official journal of the 1980 diocesan convention reprinted the Dennis Canon, and the journal was mailed to each parish in the Georgia Diocese, as well as the clergy of each parish and each parish's delegates to the diocesan convention. In May 1981, 20 months after the Dennis Canon became part of the canons of the Episcopal Church, Christ Church filed Articles of Incorporation with the Georgia Secretary of the State based on its 1789 legislative charter and the amendments filed with the Chatham County Superior Court in 1918 and 1923 which stated:



This church does hereby acknowledge and accede to the doctrine, discipline, and worship and the Constitution and Canons of the Protestant Episcopal Church in the United States of America, and the Constitution and Canons of the same church in the Diocese of Georgia.



(5) 1981-2003.



Over the next two decades, Christ Church continued to obtain property without making any effort to avoid the general church's control and otherwise continued to function as a constituent member of the general church, complying with the constitution and canons of the Episcopal Church and the Georgia Diocese. Thus, as the canons required, in 1984 Christ Church again sought and received the permission of the Georgia Bishop before selling church property,16 and in 1987 Christ Church asked for and received the approval of the Georgia Bishop and the Standing Committee to borrow $950,000 to renovate the parish house property at issue in this case and to encumber the property to secure the loan.



In 1991, the Georgia Bishop consented to Christ Church's selection of Marcus B. Robertson, an ordained Episcopal Church priest, as the rector of Christ Church. Also in 1991, Christ Church's Endowment Committee reported to the vestry that the endowment fund had grown from $70,000 to $2 million in the last few years; the report expressed the committee's determination to see that this fund was "well administered not only for Christ Church, but the Diocese at large.” The following year, the endowment funds were transferred to the vestry as trustees. The endowment fund agreement provided that in the event of Christ Church's dissolution, the assets were to be transferred "to another religious organization organized and operating for the similar purposes for which the said Church was organized and operating” as directed by the vestry or, if the vestry failed to act in a timely manner, as directed by "the Bishop of the Diocese of Georgia.” On March 21, 1994, Christ Church obtained the two parking lot properties. During this period, Christ Church also adopted bylaws requiring election of church wardens and vestry members in accordance with the "ecclesiastical laws” of the Episcopal Church and requiring them to recite an oath assenting to the "doctrine, worship, and discipline” of the Episcopal Church.



(6) The Dispute Erupts.



The dispute leading to this litigation began in 2003 when the Episcopal Church General Convention approved the election of Gene Robinson as the Bishop of New Hampshire, a move opposed by the Georgia Bishop and a majority of the parishioners who contacted him about it. On November 12, 2003, the rector of Christ Church wrote to the Georgia Bishop to deny rumors that Christ Church had left the Episcopal Church, explaining that "that is not the case” and that Christ Church's vestry had adopted a "simple resolution . . . denounc[ing] the specific actions of the General Convention re: the confirmation of the episcopal election of a non-celibate gay person, and the recognition that same-sex unions are a part of our common life.”



The dispute deepened in 2004 and 2005, as representatives of Christ Church continued to express concerns to the Georgia Bishop about the theological direction of the general church, as well as their desire to earmark Christ Church's financial contributions for projects within the diocese to avoid supporting the actions of the general church. Then, on March 30, 2006, without advance notice to the Bishop, the wardens and a majority of the vestry voted to amend Christ Church's Articles of Incorporation. On April 10, 2006, Articles of Amendment were filed with the Georgia Secretary of State that removed all references to the Episcopal Church and the Georgia Diocese and stated that the 1918 and 1923 amendments to the 1789 charter were "repealed and annulled.”



After learning of these actions, on November 22, 2006, the Georgia Bishop filed with the trial court a declaration of the Georgia Diocese's interest in all real and tangible personal property possessed, occupied, or used by Christ Church, reciting the relevant provisions of church discipline, including the Dennis Canon.



On September 30, 2007, Christ Church's wardens and vestry adopted a resolution, later approved by a 172-24 vote of the congregation, that denounced the Episcopal Church and the Georgia Diocese as having abandoned the faith and purported to place Christ Church under the ecclesiastical authority of the Anglican Province of Uganda and the Diocese of Soroti. The Bishop then defrocked the rector of Christ Church of his Episcopal Church ordination and appointed a new priest-in-charge of Christ Church. The Bishop also removed the wardens and vestry of Christ Church for violating Episcopal Church law. On October 23, 2007, the Georgia Bishop met with the minority faction of Christ Church still loyal to the Episcopal Church to elect new church wardens and vestry members, whom the Bishop then recognized as having been chosen in accordance with the constitution and canons of the Episcopal Church and the Georgia Diocese. Rev. Michael White was subsequently called as their rector, and in 2008 and 2009, "Christ Church Episcopal” sent delegates to the Georgia



Diocese's annual conventions.



(7) Effect of Church Governing Documents.



Having reviewed the governing documents of the local church and the general church, we conclude, as did the trial court and the Court of Appeals before us, that a trust on Christ Church's property in favor of the Episcopal Church existed well before the dispute erupted that resulted in this litigation (and thus well before the 2006 corporate Articles of Amendment were filed). We need not decide whether the Episcopal Church had a trust on each parcel of real estate at issue at the moment it was obtained, nor if the neutral principles would have shown a trust on the property in 1823, 1918, 1981, or any other earlier time. Instead, we consider the record evidence of the "'the intentions of the parties' at the local and national level regarding beneficial ownership of the property at issue as expressed 'before the dispute erupt[ed]' in a 'legally cognizable form.'” Timberridge, ___ Ga. at ___ (slip op. at 11) (quoting Jones v. Wolf, 443 U.S. at 603, 606).



In doing so, we need not rely exclusively on the Dennis Canon. Instead, we consider the canon as one – although a strong one – of the many indications that Christ Church holds its property in trust for its parent church.17 In other words, like the highest courts of other states, we view the Dennis Canon as making explicit that which had always been implicit in the discipline of the Episcopal Church (and the Church of England before it), as shown in the documents setting forth, in legally cognizable and non-religious terms, the property-related rules and the relative authority of Christ Church, the Georgia Diocese, and the Episcopal Church, as well as the parties' understanding of them as revealed by their course of conduct. See, e.g., Rector, Wardens & Vestrymen of Trinity-Saint Michael's Parish, Inc. v. Episcopal Church in Diocese of Conn., 620 A.2d 1280, 1292 (1993) ("[T]he Dennis Canon adopted in 1979 merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of [Episcopal Church] in 1789.”); Episcopal Church Cases, 198 P3d 66, 81-81 (Cal. 2009) ("Moreover, [the Dennis Canon] is consistent with earlier enacted canons that, although not using the word 'trust,' impose substantial limitations on the local parish's use of church property and give the higher church authorities substantial authority over that property.”).



CCS and the dissent characterize this dispute as the Episcopal Church trying to take Christ Church's property. We disagree with that view of the record and the law. The First Amendment allows CCS and its members to leave the Episcopal Church and worship as they please, like all other Americans, but it does not allow them to take with them property that has for generations been accumulated and held by a constituent church of the Protestant Episcopal Church in the United States of America. Our conclusion regarding the effect of the governing documents of the local and general church in this case is consistent with U.S. Supreme Court precedent, this Court's prior cases, and the decisions of several other state supreme courts. See, e.g., Barber, 274 Ga. at 359 ("In this case, it is undisputed that the [parent church] remains a hierarchy, that the [local church] has been a member of the [parent church] for over thirty years, and that the [local church] is subject to the [parent church]'s discipline. Such discipline unquestionably provides that the [parent church] 'shall hold all church property,' thereby implying a trust for the benefit of the [parent church].



And this is irrespective of the [local church's] continuing membership in the [parent church].” (footnotes and citations omitted)); Gauss, 28 A3d at 321 (noting that the "highest courts of several other jurisdictions also have concluded that the Dennis Canon applies to defeat claims of ownership and control over parish property by disaffected parish members, even in cases in which record title to the property has been held in the name of the parish since before enactment of the provision” (citing Episcopal Church Cases, 198 P3d at 79-81; Harnish, 899 NE2d at 924-925; and In re Church of St. James the Less, 888 A2d 795, 807-809 (Pa. 2005))).



CCS relies heavily on this Court's decision in the Georgia District Council of Assemblies of God case, where we held that the local church property was not held in trust for the general church. See 267 Ga. at 61. But there the denomination's bylaws stated that each local church "'shall have the right to acquire and hold title to property, either through trustees or in its corporate name as a self-governing unit,'” "'[t]he fact that a local assembly is affiliated in the association of the District or General Council shall in no wise destroy its rights as above stated or interfere with its sovereignty,'” and "'affiliated churches are deemed to be sovereign, autonomous, and self-determining bodies'” Id. at 61 n.2. Here, the "bylaws” of the Episcopal Church state exactly the opposite, and, along with the other neutral principles, lead to the opposite result. The juxtaposition of the two cases also illustrates that, despite the dissent's lament, the result of neutral principles analysis by this Court is not pre-ordained but instead depends on the title instruments, applicable statutes, and general and local church governing documents at issue in the particular case. Finally, the South Carolina decision on which CCS relies is readily distinguishable, and it has not been followed in a church property case by any court outside that state.18 2. As in Timberridge, ___ Ga. at ___ (slip op. at 31), the resolution of this church property dispute in the general church's favor does not rest on the "mere connectional relationship between a local and national church.” Carnes, 236 Ga. at 35. Instead, our decision derives from the specific provisions of the governing documents adopted by the local and national churches, supported by the policy reflected in OCGA §§ 14-5-46 and 14-5-47 and not contradicted by the title instruments at issue. Our decision is based on the sort of legal materials that are "familiar to lawyers and judges” and embodied in "legally cognizable form,” and it has nothing to do with the religious doctrine of the denomination or the local congregation. Jones v. Wolf, 443 U.S. at 603, 606. In the end, it is fair to say, as the trial court did, that Christ Church can no more shrug off the trust, than the National Church could unilaterally impose it. The trust has historical roots going back to the English church and the founding of the Episcopal church in this country. Christ Church got the benefit of its bargain with the National Church for many years. The National Church has the right to insist on its part of the bargain as well.



Like the trial court and the Court of Appeals, we conclude that neutral principles of law demonstrate that an implied trust in favor of the Episcopal Church exists on the property of Christ Church. See Timberridge, ___ Ga. at ___ (slip op. at 31-32); Barber, 274 Ga. at 359; Crumbley, 243 Ga. at 345.



* * *



See: http://www.gasupreme.us/sc-op/pdf/s10g1909.pdf

Judgment affirmed.