…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.
Not only is it fairly certain that the secular courts will not revisit the matter of the legal standing of TEC – and here it is TEC which has breached the wall of separation of Church and State – but it is certain that no constitutional mechanism exists for TEC to address the extent and limitations of it own authority over itself. The majority vote of GC determines that which its Constitution “means”.
Now this may all be well and good for the winners in the present controversy, but it does not take prophetic insight to predict that in the future this may well come back to bite the church in America.
The identification of a potent enemy may well induce members of a society to cede essential rights to those supposed capable of defending that society but power once ceded, particularly if such cession is generally acknowledged to be “constitutional” creates a formidable precedent. Whatever the intent of its form of governance, TEC is now a hierarchical church, like it or not and as throughly as the least “democratic” of Anglican Provinces.
wvparson-
I am tempted here to argue with you, although granted these are more matters of detail. The one that might be a matter of substance would be your presumption that secular courts will not review TEC’s legal standing. As things continue to play out, and lawsuits are opened in more states, which have different laws and definitions, the interpretation of the status of TEC may be entirely different. Certainly, California and NY may have similar takes on TEC claims, but equally obviously, the courts in Virginia and South Carolina, with perhaps closer ties to English Common Law, take a much different approach. In all probability, the question of the hierarchical nature of TEC will not be settled until it comes before the US Supreme Court- and even then, the high court may allow states to determine the nature of trusts, the importance of deeds, or whether to use neutral principles.
I would nit pick whether currently TEC is a hierarchy or a tyranny of the majority. In effect, the old hierarchy of Scripture, Prayer Book, Bishop (that is, the episcopal hierarchy) has been overthrown and replaced by a junta that can make its own law because it wields a super majority in the legislative body. Essentially, the legislative body has chosen to suspend the constitution and canons, in favor of rule by resolution. So we see Title III and Title IV disregarded in depositions and “renunciations,” we see marriage canons and the BCP overturned by resolution, and we see the Executive Committee and the PB overruling bishops on matters in their own dioceses, threatening deposition and lawsuits.
You are, of course, quite correct that it is much more difficult to recover authority than to give it away. As some of our friends in TEC will no doubt come to discover in the future.
If the courts impose a hierarchy or structure on a Church aren’t they establishing a Religion.