…TEC is organized legally as a voluntary association of dioceses.
I want to break this point down into two parts: first, a voluntary association; and second, an association whose members are dioceses.
To begin, all sides of the current disputes agree that TEC is what the law has traditionally called a “voluntary association.” This kind of entity is sometimes referred to today as an unincorporated nonprofit association, but voluntary association is the traditional terminology. So, from a civil law perspective, that puts us immediately into the category of association law, which is different in important ways from that governing other forms of organization.
A church does not have to be an association. The Southern Baptist Convention””a church named by the way for its convention; TEC is named for the office of bishop””is a Georgia corporation. And after American independence, the largest of the state churches in the former colonies, the one in Virginia, was incorporated in that state by the Virginia legislature. But TEC itself has always been and remains a voluntary association. Everyone agrees.
This leads us to the question, “what are the essential legal characteristics of voluntary associations, the things that distinguish them from other forms of organization”? And the answer is “they’re not what they used to be.” Until fairly recently, the law did not recognize a voluntary association as a legal entity distinct from its members. In other words, when the law looked at a voluntary association, it only saw the members; the association itself was simply an aggregate of its members. The legal status of associations at the time TEC was organized is reflected in a case that arose ten years later in England. An association of Freemasons brought suit to recover some of its property, but the judge would not hear its claim. The judge, one of England’s law lords, concluded it was “singular that this Court should sit upon the concerns of an association, which in law has no existence.” (Emphasis added.) The suit could only be brought by the individual members of the association.
This rule was changed in the twentieth century in most, but not all states, typically by statute. Most states now recognize voluntary associations as legal entities and allow them to own property, enter into contracts, sue in their own names and enjoy the rights and responsibilities of legal personality. But that was not formerly the case.
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