And this is the fatal flaw that lies at the heart of ECUSA’s “winner-take-all” strategy. It tries to argue that a Diocese may never vote to leave, and that the only result of such a vote is that people leave, but the structure remains intact. But the people in question do not conveniently resign their positions, because in their view, they are leaving and taking the entire diocesan legal structure with them. So in their view, they are keeping their positions. Thus ECUSA has to come up with a way of claiming that those positions are in fact vacant. It goes through the charade of “deposing” the Bishop with far less than the required number of votes, but that does not solve the problem. The clergy deputies who voted for the amendment cannot be summarily removed without deposing them as well — a process that takes six months. And there is no mechanism whatsoever for summarily “deposing” or “removing” a lay deputy from office.
Without such resignations, and without any mechanism for removing lay Convention deputies, the very next “special meeting” of the Diocese which is called is null and void itself. For the duly elected deputies from the last Convention are the ones who should be seated, but they are barred from attending by the unconstitutional device of imposing a “loyalty oath”. And there cannot be a legal (one-third) quorum of loyalist clergy, because nearly nine-tenths of them went with Bishop Iker.
The problem of ECUSA and its remnant “Diocese” is that they just will not follow their own procedures to organize and become legitimate in the eyes of the law. Mr. Nelson, Bishop Gulick’s attorney, even (unwittingly) described his own clients to the court and spelled out what they ought to have done (id. at 57):
MR. NELSON: What I’m saying is that the body gets together, and then it must be approved by the general convention in order to be a valid diocese. It can get together and call itself a diocese, but until it’s approved and until that diocese agrees to accede to the constitution and canons of the Episcopal Church, it is not a diocese and cannot be a diocese.
The real failure of TEC was that of the Browning-Griswold era and the General Conventions of 1994, 1997 and 2000. In those years they should have amended the constitution and adopted canons which actually could be the basis for what they are doing:
– a specific constitutional provision that dioceses may not withdraw from TEC without explicit permission from General Convention
– a specific canon giving authority to the Presiding Bishop, Executive Committee and/or House of Bishops to declare a diocesan bishopric, standing committee and convention “vacant” and to call a special convention of a diocese at which only a “quorum” of all TEC clergy and lay delegates is needed.
– a canon “clarifying” the so-called Dennis Canon to say that the diocese holds all parish property in trust for TEC and all property held by or held in trust by the diocese is held in trust for TEC.
Of course, this still doesn’t get around the problem in South Carolina where it is axiomatic that in order to create a trust one must actually own the property put in trust.
But then, just as no one expects the Inquisition, no one expected whole dioceses to up and leave TEC, even though the storm clouds were gathering as early as 2000 when TEC’s Inquisition invaded Eau Clair, Fort Worth, Quincy and San Joaquin.
Mr Haley, it seems, is the honest interpreter of legal matters in the Episcopal/Anglican legal disputes. The other side in this clarificatory process is in grave danger of being exposed as great pools of mendacity, and quite conscious mendacity, at that. Hmmmm…. they’d better watch out. Perjury laws could apply?