The Episcopal Church (USA) currently is a party to some sixty lawsuits across the United States. Its litigation budget from 2006-2012 could approach $7 million, or more than $1 million per year — and that is just the official, published figures. There is another considerable amount going out to prop up its Potemkin dioceses in San Joaquin, Fort Worth, Pittsburgh and Quincy.
Those are the four dioceses which have thus far voted to leave the Church, and each departure has spawned a lawsuit. ECUSA from the beginning has adopted a high-stakes, winner-take-all strategy which depends for its success on its ability to prove in court the proposition that a diocese is not free to withdraw from the voluntary unincorporated association which ECUSA has been since its formation at common law in 1789….
The inverted logic of this argument should be apparent to any mind that loves reason. The Presiding Bishop and Chancellor first contend that ECUSA’s Constitution and Canons prohibit any Diocese from amending its Constitution so as to withdraw from the Church. They can point to no language in the national Constitution and Canons which says as much; they argue that the prohibition against leaving is implicit. Then they contend that because it is forbidden implicitly to withdraw, a vote to do so pursuant to the express power to amend spelled out in the diocesan Constitution (which, in the form approved by General Convention when the diocese in question was admitted, was an unlimited power to amend the document in any manner whatsoever) violates that implicit prohibition. So an implicit and unwritten understanding overrides the express language of amendment: the latter does not mean what it says, because despite its unrestricted language, it is to be understood that certain amendments are out of bounds. And it is further understood (although nowhere expressly written) that you are out of office the moment you choose to follow the express language in a manner that is implicitly prohibited.
As the saying goes, the wheels of justice (or at least the legal system in the US) may grind slowly, but they grind exceedingly fine.
As always, the Curmudgeon has provided us with an elegant, lucid summary of the legal issues, and their ramifications. I loved this pithy paragraph:
“Four lawsuits in four different courts, each with the same underlying question: what prohibits a diocese from leaving a voluntary association of dioceses when there is no express language prohibiting withdrawl?” Yes, what indeed??
And as he rightly notes, if one, or more, of the four courts rule against TEC, it will be fatal to their risky “winner-take-all” legal strategy.
The bigger they are, the harder they fall. I hope TEC is in for a very big fall indeed. A shattering one. The four dioceses versus mighty TEC may seem like a David vs. Goliath contest. But we know how that one turned out, don’t we?
David Handy+
It appeared to me that the Fresno lower court decision for Anglo-Dio SJ was summed up to say that they could leave but could not “transfer” the assets. I believe that decision is wrong and I surely hope that I am wrong as well. There is a lot of “we need to prepare to leave our buildings behind and plan accordingly” conversations going on here. I pray that is premature. Revsionists are calling local parish priests to woo them to woo the lay people to go Epsicopal if the property converts to lamb. That chances of that happening are far less than zero and the revsionists will have acquired a slough of empty buildings (most old) with related costs with no cash flow in a contracting real estate market.
God is good.
Intercessor
Perhaps, just perhaps, the Lord is allowing Pharaoh and her army of lawyers to pursue departing dioceses crossing on dry ground into the parted waters. The legal ground just may become a muddy slough for TEO lawyers if their towering wall of flimsy arguments collapses and buries them under deep judgments indeed!
The issue is the right to secede. The model that history has shown us for TEC is the bicameral legislature at the national level. The exact analogy is to the Federal and State governments. The Dioceses does not have the right to secede from TEC any more than the State has the right to secede from the United States. As the Supreme Court held in Texas v. White, where it was said that the Constitution does not permit States to secede (implicit) and that all of the ordinances and acts of legislatures (all explicit) for secession are “absolutely null”
So, the explicit language of an individual Diocesan Constitution can not trump the intent of the Constitutions and Canons of TEC (which, A.S. Haley fails to mention that they acceded to).
[i] Edited by elf. Please discuss the issue rather than an opinion of the individual’s opinion. [/i]
I’m agnostic about the prospective legal judgments, but it seems to me at least part of a question is whether, having once given “unqualified accession” to the Constitution and Canons of the Episcopal Church, a diocese may susequently qualify or withold accession.
Bruce Robison
[blockquote]The exact analogy is to the Federal and State governments. The Dioceses does not have the right to secede from TEC any more than the State has the right to secede from the United States. [/blockquote]
But that analogy fails when you consider that each state bound itself to the union via a plebiscite, not an act of its legislature. It wasn’t up to each state’s legislature to secede because it wasn’t the legislature that created the bond in the first place. That’s not the case with TGC and its dioceses.
[blockquote]The Dioceses does not have the right to secede from TEC any more than the State has the right to secede from the United States. [/blockquote]
The situation is not analogous to the reconstruction era, since TEC (fortunately) does not have a standing army.
Satan’s minions do not qualify?
Intercessor
[blockquote]The exact analogy is to the Federal and State governments. The Dioceses does not have the right to secede from TEC any more than the State has the right to secede from the United States. [/blockquote]
The Federal Constitution has a Supremacy Clause; ECUSA’s Constitution does not. Thus the correct analogy would be to the States and the Federal government as they existed under the Continental Congress from 1776 until 1781, when the Articles of Confederation (which also had a Supremacy Clause) went into effect. Until they agreed collectively to be subject to a Supremacy Clause, each State could do exactly as it pleased.
“Accede” simply means “[url=http://www.merriam-webster.com/dictionary/accede]to become a party to[/url]”. It does not mean “to join irrevocably or perpetually”. Regional governments accede to international agreements all the time, and they freely withdraw from them as well. An “unqualified” accession means that the government becomes a party to the treaty without expressing any reservations to it, such as agreeing to abide by only a part of it.
No government feels that it has to “reserve” the right to withdraw from a treaty to which it accedes; the right to withdraw follows from the fact that the government is autonomous. And the dioceses which came together to form General Convention in 1789 [i]were[/i] autonomous.
Consent in the law is always voluntary, as in a power of attorney: the person giving consent to another to act in his place may cancel the power of attorney at any time. To make a power of attorney irrevocable, it not only has to be stated as such, but it has to meet additional requirements as well.
So by “unqualifiedly acceding” to ECUSA’s Constitution and Canons, a Diocese merely meets a condition of membership in ECUSA: to belong, you have to consent to the whole C & C, and not just to some of their provisions. If the Diocese later changes its mind and amends its Constitution to delete the words of accession, that act makes it no longer eligible to belong — [i]i.e.,[/i] it is out of the Church. But without a Supremacy Clause (and the Articles also used the word “perpetual”), and by General Convention’s approving diocesan constitutions with unrestricted powers of amendment, there is simply no basis on which to say a Diocese may not exercise its powers of amendment to “de-accede” from ECUSA’s C & C.
To add to # 9’s remarks:
The relevant comparison is not to the Constitution, but to the Articles of Confederation which preceded it. That was structured much more like a federation of sovereign states. The theory behind the present Constitution was that it was directly from the people, and not a creature of the various states. Even then, the theory took a while to become accepted (see the Nullification Controversey of the 1830s, and the bit of unpleasantness in the 1860s).
No. 3, to extend your metaphor, it is perhaps a sign of ancient wisdom that the departing Israelites did not attempt to take the pyramids with them, lest doing so would have impeded their passage across the divided waters.
I continue to view the diocesan gymnastics (including the ambiguous and anomalous clinging to the term “Episcopal” by departing elements) described in A.S. Haley’s well-written and informative post as having no controlling explanation other than a desire to control physical property and accounts. I’ve made that point before here in other contexts and have not noticed anyone making even a feeble effort to disabuse me of that perception. With several of these situations teed up for the courts, I would not be surprised to see disparate resolutions, at least at the trial level, around the country. This means that both factions can look forward to around a half decade of pouring treasure down the maw of the American legal establishment. One can only hope that the lawyers on both sides are enthusiastic Christians who will, after extracting only the minimal amounts necessary for food, simple clothing, shelter, and BMW 740i’s (the long wheelbase version), return some of that money to service of Christ’s church.
Am surprised the PB hasn’t issued a [i]Dissolution of the Dioceses[/i] decree.
NoVA Scout says, “I continue to view the diocesan gymnastics (including the ambiguous and anomalous clinging to the term ‘Episcopal’ by departing elements) described in A.S. Haley’s well-written and informative post as having no controlling explanation other than a desire to control physical property and accounts.” –NoVA Scout
But if the departing people consider the Episcopal Church to be in serious, salvation-issue error (as they do), why would they want that same church to use their assets to continue in that error? I assume that this is the main reason for taking the property–to use it in the mission intended by those who established and cared for the property.
RE: ““I continue to view the diocesan gymnastics (including the ambiguous and anomalous clinging to the term ‘Episcopal’ by departing elements) . . . ”
Oh, I don’t find the term “Episcopal” to be “ambiguous” or “anomalous” at all. TEC does not own the word “episcopal.” I’m thrilled that the departed dioceses retained their official and legal names and have complete understanding of the non-ambiguous word “episcopal.”
TEC’s budget of $1 Million per year for litigation understates the true costs by a factor of 10. At least $2 million already spent to try to seize the property of a dozen VA churches.
Is it up to $700 per hour yet DBB??
Litigation is inherently risky – for both sides. Lower court rulings, while they may point to future success, don’t mean all that much unless the appellate courts let them stand. TEC has engaged in a very high risk litigation strategy. One lower court ruling in central California is not the end of it. If TEC wins, then they aren’t really any farther ahead then they currently are (i.e. they will simply inherit a bunch of empty buildings that they can’t support, leading to the bad publicity of eventually closing down the parishes and selling off the buildings). If TEC loses, then they will have lost the whole ball game.
A much smarter strategy would have been for TEC to negotiate in good faith with the dioceses that are leaving.
A.S. Haley is magnificent!
His reasoning is so incisive and well-informed that it should give Beers nightmares.
The Federal Constitution has a Supremacy Clause; ECUSA’s Constitution does not.
The U.S. Constitution is also the successor to the “Articles of Confederation and Perpetual Union.”
_ _ _ _ _ _ _ _ _
BTW, is ECUSA still an unincorporated association?
RalphM: You can be sure that if, as you say, the departing groups have spent $2M to seize the Virginia church properties, similar sums have been spent by the Diocese and the national church to protect them and the remaining Episcopalians. It is all waste.
Paula: I’m sure both factions would prefer that the other not have the properties. That isn’t justification for asserting ownership. Departing groups could leave and use the legal fees to build new facilities. Their desire for property tarnishes the purity of their theological positions, positions with with I am in substantial agreement, but have had no difficulty maintaining within the Episcopal Church.
Haley…makes good points but the courts have so far not agreed with his approach.
I have dear friends in all these dioceses and stand with them….and I personally believe that Diocese can join and leave and it is not the same as the Fed Gov. and States….and the Chancellor as made that clear….but courts in the secular world do not always see the logic any better than the EC.
I will continue to pray…that they do.
RE: “Their desire for property tarnishes the purity of their theological positions . . . ”
No it doesn’t — rather their desire to continue ownership of their property supports and ties into their theological positions.
It’s a terrible thing to allow an organization to ape Christianity through owning the facades of a church in order to deceive hapless Christians and pagans into entering. It would be rather like my stealing a pair of Golden Arches, claiming that I was a McDonalds, and feeding the ignorant tofu broccoli sprouts salads, garnished with seaweed.
No, departing Anglicans working to maintain ownership of their property is in fact a part of their theology — just as TEC revisionists’ desire to steal the parish property is a part of theirs. TEC revisionists knows well that the brand is important in maintaining the illusion of the Christian faith for their marketing efforts.
The parasite always needs a host.
NoVA Scout, what you seem not to realize is that, besides not wanting to allow the Egyptians to in this way plunder the Israelites, as it were, in many instances these churches are located in urban, built-up areas in which no land is available for building nor current buildings available except at prohibitive cost. So simply walking away from the building also means then walking away from ongoing ministries that serve many, and indeed, being defeated by unbelievers and walking away from and abandoning the area as a local body of Christ entirely. Are we not exhorted instead to put on the full armor of God so we may resist in the evil day and, having done all, to stand firm?