A S Haley–The Episcopal Church and the Freedom of Association: a Showdown Is Coming

By my count, 40 of the 91 cases listed resulted in legal victories at the trial or appellate level for ECUSA; just two parish cases (All Saints and the Good Shepherd San Angelo case in Texas) went the other way, but three of the five cases involving Dioceses resulted in rulings against ECUSA. A fourth diocese case (San Joaquin) is on appeal; the fifth one (Pittsburgh) gave a victory to ECUSA on the basis of a very strained reading of the effect of a stipulation between the parties.

It is a legitimate query to ask why the results of the parish cases are so lopsided in favor of ECUSA, while the results of the diocese cases go just the other way.
For the parishes, most of the decisions turned upon explicit language in their own bylaws that made them “perpetually” subject to their Diocese and ECUSA. No such language exists in any of the Dioceses’ governing documents, however. For the cases involving them, the explanation lies in the well-established freedom of association, which is a fundamental right enshrined in the First and Fourteenth Amendments to the United States Constitution. It holds that just as no one can be prevented by the government from joining a group, so also the group may not go to court to prevent a member from leaving it. “Freedom of association therefore plainly presupposes a freedom not to associate,” as the Supreme Court put it in Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984).

The liberals in ECUSA have a very difficult time trying to understand why their Church should be subject to such a doctrine. For them, the union between a Diocese and General Convention is an ecclesiastical one, and as such, they claim, civil courts should be precluded (by that same First Amendment!) from examining or questioning it in any way.

A moment’s reflection will expose the flaws in that argument (not that ecclesiastical liberals ever pay any attention to logic or reason). ECUSA is, ecclesiastically speaking, a denomination — but that says nothing about what it is in the eyes of the law. In order to sue or be sued in a civil court, for instance, ECUSA has to be a juridical person, not just an ecclesiastical one.

Read it all.


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12 comments on “A S Haley–The Episcopal Church and the Freedom of Association: a Showdown Is Coming

  1. Luke says:

    It appears that lawyer Haley and, among others, I, have the same opinion about ECUSA’s next General Convention-
    at the coming General Convention — watch them approve the next triennial budget without allowing any discussion (let alone itemization!) of more than $40 million in litigation costs. Watch 815 hide its head in the sand as it is presented with an order to pay still more millions of dollars to Bishop Lawrence’s diocese to reimburse it for its attorneys’ fees. Watch for the same thing to happen again in Texas. They must know what is coming, but they will not publicly acknowledge it.

  2. wildfire says:

    At the beginning of “The Marriage of Figaro” the buffoonish villain Bartolo plots his legal case against Figaro: “equivocate and paraphrase and trap him in a legal maze.” A fair critique, perhaps, of the legal art as sometimes deployed?

    Of course, in the end it is Bartolo himself, not Figaro, who is trapped in his legal maze. A fair critique of TEC’s legal effort.

  3. MichaelA says:

    Excellent analysis Curmudgeon – many thanks.

    Interesting that the liberal Mark Harris+ over at Preludium blog highlights how TEC is freezing or reducing funds for various ministries, including to marginal native ministries.

    The obvious response that invites is: what could TEC have done for ministry over the last few years with the $40 million (or more) that it has spent on law suits?

  4. Luke says:

    Another obvious question, at least to me, is what changes, if any, will there be in ECUSA’s direction following Schori’s departure?

    And, will the court battles end? Who at 815, of the likes of Beers and Sauls, will retain their Schori-appointed positions?

    Nearly everyone accepts there are huge numbers of Episcopalians who pray for the return of “the old days,” at least in some form. As the make-up of the HOB changes at glacial speed, what signs of hope are there to encourage these faithful? How vigorously will the Schori disciples fight to maintain their gains?

    Of course, new brooms* can sweep clean. Is there likely to be a different brand of broom chosen to succeed Schori? Could it actually occur that a strong and lusty new vacuum cleaner might replace the broom?

    *The use of the new broom metaphorl is in no way intended as a pejorative comment directed toward anyone.

  5. MotherViolet says:

    One wonders what ‘freedom of association’ issues have to say about some parishes being required to have a 5 year disaffiliation from other anglican bodies. Is this illegal as well as immoral?

  6. Luke says:

    Can you be specific?

  7. magnolia says:

    no. 4 imo nothing will change. whoever elected schiori will be electing the next one as well. they’ve already gone down the primrose path to hades and that will not be changing without a sea change of repentence; if you read the other side there is no mention of it coming and likely not be in our lifetime no matter how much we wish for it. too many departures from scripture; we didn’t just split over one issue.

  8. Luke says:

    I agree completely…

  9. Katherine says:

    #6, Luke, it could be that #5 referred to parishes in the Pittsburgh area which kept their buildings on condition they not join the ACNA for five years. I think those five years may now be about up, and the ACNA has not folded as the rump diocese had hoped it would.

  10. CSeitz-ACI says:

    I gather the President of the HOD and numerous TEC Bishops have filed an amicus brief to SCOTUS supporting ss marriage (against the present BCP, canons and Holy Scripture).

    Yet when we file an amicus brief in Texas, the Title IV wrath descends.

    The lawlessness and hypocrisy are patent.

    I trust AS Haley will be bird-dogging this recent development. It reminds one of the PB having defended diocesan autonomy in court in MD on behalf of +Jane Dixon, only later to say it was anathema.

  11. Luke says:

    Isn’t it all anathema?

  12. CSeitz-ACI says:

    The list appears to include 20 or so TEC Bishops. Filing an amicus is deserving of Title IV discipline unless you file one that subverts the actual BCP and canons. Then it is OK. ‘Prophetic.’