Mark McCall: Is the Episcopal Church Hierarchical? (Very Important)

I swear those ACI guys get paid by the word.

You’d think they could hire an editor.

Mark McCall did some great work in putting this together.  This is the kind of well-thought out legal analysis (basically it is an unpublished law review article) that should make very convincing reading for judges as they resolve the San Joaquin, Pittsburgh, Quincy and Fort Worth situations.

James Manley: Trust me - this should read VERY convincingly to a judge.  I have only been able to read through a few pages, but this is legal reasoning at its best.  Good legal reasoning is often dense and there is a need to cover all bases.  As a legal reference librarian, I can assure you that this is well written, and not in need of “editing”.

In a metaphorical, postmodern sort-of-way, ECUSA/TEC/GCC/EO-PAC could be hierarchal like Jesus could be a vehicle to salvation - if you really felt you needed one, that is - but on the matter of property and trusts, now that is a verbally inspired plenary inspirational-from-the-mouth-of-God-to-the-Beers-Schori-axis absolute meaning as defined by the BS-axis — trust us!

Yeah, then they get this.  Uh-oh!!!

And Mr. McCall’s excellent work OUGHT to be filed in every one of those diocesan vs 815 cases under the “amicus curiae” designation by whomever has the authority to offer it to the court hearing the case.
RNW+

I must dissent from Matt’s introductory comments and would encourage everyone to read the introduction by ACI.  It is incisive in its own right and an essential complement to my paper.  I am grateful that they have chosen to publish it.

Sure Mark, excellent paper. I greatly appreciate your work.

The ACI, on the other hand, continues to disappoint. I can’t imagine even entertaining the possibility, as they apparently did, of withholding a paper such as the one you produced while fellow orthodox parishes and diocese are being sued despite any ecclesiological disagreement I may have with them.

This is an interesting paper, and it’s a fresh perspective too.  I commend Mr. McCall for the idea and the effort.  There is insight to be had through this paper.

That said, I do not find this paper persuasive in many respects, and I think a pretty comprehensive rebuttal could be put together (and obviously will be in litigation when these types of arguments are made by the dioceses attempting to secede).

To touch on a few points:

  - McCall states at page 2: “The role of the courts under the First Amendment is first to determine what principles of governance have been agreed and then to defer to the body or bodies specified as the governing authority in the church’s constitution.”  Personally, I agree that courts should interfere as little as possible with church governance in any respect.  But what McCall states is NOT what the First Amendment requires.  If it were, the “principles of government” or “deference” approach would be mandated.  It is not.  See Presbyterian Church v. Blue Hull Memorial Presbyterian Church (US 1969); Jones v. Wolf (US 1979).  (It should be noted that the “neutral principles” approach places great weight on how the church has chosen to order its affairs.  And indeed, some commentators have questioned how different the neutral principles approach really is—in result, if not in analysis—from the principles of government approach.)  If it were, Employment Division v. Smith would not be the law.  But it is.

  - McCall spends several pages arguing that the constitution of TEC does not restrict diocesan authority.  All I can conclude is that he isn’t reading carefully.  There are all sorts of provisions in the TEC constitution regarding dioceses that are mandatory rather than optional.  McCall apparently ignores these because they lack the language of hierarchy that the paper is about.  But if you’re analyzing whether TEC possesses the authority to control dioceses, you have to include these examples.  They are entirely inconsistent with the ideas that dioceses either are the pinnacle of the hierarchy or are co-equal with TEC.

  - McCall acknowledges that new dioceses, upon joining the Episcopal Church, are required to make an “unqualified accession” to the constitution and canons of TEC.  It seems to me inescapable that reserving the right to withdraw accession in the future is entirely inconsistent with an unqualified accession.

I wish I were back in my law student days and had the chance to do a student note on this type of stuff.  I even wish I had enough time to engage in an open-ended web discussion.  But with family and work obligations, I don’t have the time I wish I did.  I will try to comment further if I can though.  I anticipate a lively debate—another example of how useful a site StandFirm is.

Dear Reverend Mr. Kennedy, your description of the ACI comment on Mr. McCall’s paper is a caricature of the comment itself.  You are capable of more than the facile sarcasm and mockery that follow upon your mischaracterization of ACI’s comment.  Many have been enervated and decimated by present turmoils and I pray your strength be returned to you.

ACI’s brief, one-page comment is not, “...a hand-wringing paroxysm of anxiety”, but instead demarcates critical distinctions between, including the respective functions of, legal and theological analyses; as well as the difference between an analysis of de facto conditions (McCall’s subject), and possible ways forward out of destructive conditions (ACI’s subject, at least primarily).  While Mr. McCall’s perspective and framework are explicitly legal, those of ACI are explicitly theological (incorporating historical, Biblical and ethical perspectives, as the training of the signatories alone might suggest).

I welcome both Mr. McCall’s views and insights as well as ACI’s and find them all together helpful and comforting.  As one senses within Anglicanism, and as articulated, for example, in the work of someone like O. O’Donovan, the relation between the perspectives represented by ACI and Mr. McCall, must be delved and confronted if a way out of the Anglican labyrinth can ever be found.  Anglicanism’s burden may provide its relief.

I also agree with ACI that looking a Medusa-headed reality in the face, if not done with great care, can leave little room for faith-infused acts of perspicacity, the blessing of the Holy Spirit on a community and those trying to exercise their gifts of intellect and training to discern the best way forward.  For what do we inevitably see when looking reality in the face, if not death itself, our own mortality?  Are we to rest our future on this vision?  Jesus Christ died to save us from the face that grins derisively at us from the very midst of God’s creation.  He has substituted his own face for ours and I am grateful for any, not least of all ACI, for reminding me of his triumph and sacrifice, including through a judicious word of caution.

McCall acknowledges that new dioceses, upon joining the Episcopal Church, are required to make an “unqualified accession” to the constitution and canons of TEC.  It seems to me inescapable that reserving the right to withdraw accession in the future is entirely inconsistent with an unqualified accession.

[8]  - I don’t know if you are American or not, but of course in the United States it’s assumed.  Case in point, “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” 

The freedom to make the case assumes the freedom to separate - we are not compelled to give our assent to a corporate entity when it no longer fulfills its mission.  This is a principle (radical though it may be, the King did not take kindly to that declaration either) on which our nation was founded and one would expect that the church-organization that has been most-closely linked with that nation (the National Cathedral is not Episcopalian for nothing) would also assume that principle.  That if it does become necessary to dissolve the political bands (and that’s what we are talking about in relation to this particular province in the Anglican Communion, by the way - this is about governing affiliation not salvation) than we should declare the reasoning for the cause, as has been done through countless communiques and statements, and go forth and do it.

To see the wringing of hands over the audacity for American Episcopalians to separate from a corporate structure that has lost its mission is to wonder if we were wrong to separate from the King of England in the first place.

bb

STM, heh, I feel fine. Thanks anyway though. And while nice, your description of the ACI’s is not altogether true. I think the ACI is worried that dioceses/parishes might use McCall’s paper to do what the ACI does not want them to do.

Yes, they are worried, MK [#11], ACI hardly denies it, but the worry is entirely realistic in the way I just tried to describe.  Breaking off from TEC can be understood in protestant Christianity but it is inescapbly a tragic choice, a great deal is lost in order to try to gain something else.  And who, exactly, secures that something else?  Not those breaking off, but one to whom those breaking off must subject themselves.  And if they subjected themselves to the one who secures the something else they seek, what are those breaking off to make of his self-binding, Trinitarian prayer “that they all may be one”?  A conundrum, at least.  Only the grace of God enables us to survive the tragedies of our isolated choices, something I doubt ACI would disagree with.  So I do not see how my previous comments are “not altogether true” with regard to ACI.

A tour de force. Thanks, Mark McCall. This “feeble mind” appreciates the time and effort that you put into preparing this piece.

In particular, everyone should take note of the section on withdrawal from the TEC (page 20):

Simply put, the argument that joining an organization and agreeing to its terms means one will remain a member forever is without merit. If membership is to be irrevocable, there must be clear indication of such a restriction. This elementary principle is as true of religious societies as of any other association…If withdrawal from TEC is prohibited, that prohibition must be found not in the mere fact of joining, but in some other constitutional provision that makes the union with General Convention irrevocable. But of course there is none.

DavidH #8
I’m no lawyer, so please explain some things:

- McCall states at page 2: “The role of the courts under the First Amendment is first to determine what principles of governance have been agreed and then to defer to the body or bodies specified as the governing authority in the church’s constitution.” Personally, I agree that courts should interfere as little as possible with church governance in any respect.  But what McCall states is NOT what the First Amendment requires.  If it were, the “principles of government” or “deference” approach would be mandated.  It is not.  See Presbyterian Church v. Blue Hull Memorial Presbyterian Church (US 1969); Jones v. Wolf (US 1979).  (It should be noted that the “neutral principles” approach places great weight on how the church has chosen to order its affairs.  And indeed, some commentators have questioned how different the neutral principles approach really is—in result, if not in analysis—from the principles of government approach.) If it were, Employment Division v. Smith would not be the law.  But it is.

How can a court defer to the governing body of a church if it doesn’t first determine what that governing body is?

- McCall spends several pages arguing that the constitution of TEC does not restrict diocesan authority.  All I can conclude is that he isn’t reading carefully.  There are all sorts of provisions in the TEC constitution regarding dioceses that are mandatory rather than optional.  McCall apparently ignores these because they lack the language of hierarchy that the paper is about.  But if you’re analyzing whether TEC possesses the authority to control dioceses, you have to include these examples.  They are entirely inconsistent with the ideas that dioceses either are the pinnacle of the hierarchy or are co-equal with TEC.

Please list what these mandatory provision are and explain why they would apply to a diocese that has left the TEC.  I have joined groups that required certian things of me, but when I quit those requirements no longer apply.

- McCall acknowledges that new dioceses, upon joining the Episcopal Church, are required to make an “unqualified accession” to the constitution and canons of TEC.  It seems to me inescapable that reserving the right to withdraw accession in the future is entirely inconsistent with an unqualified accession.

Again, I have agreed to follow the rules of groups I have joined, but when I left I was nolonger bound to those rules.  McCall went to great lengths to show why unqualified accession could be withdrawn, do you have anything other than your opinion that is is inconisistent or is it just wishful thinking?

STM, reconciling a departure from TEC with John 17 is not so difficult a conundrum when, contra ACI, it is recognized that TEC is no longer a Church. Leaving a dead branch does not tear the unity of the Church, it is rather the first step in restoring it. Of course I am writing from within a Reformed ecclesiological framework and you are not.

I should have said your original post was incomplete perhaps, rather than inaccurate, but I think your description of the ACI intro is both far too “glowing” and glosses over the fact that the ACI was, unconscionably in my view, considering withholding this paper.

Very interesting; particularly the conclusions on pages 49-51.

ACI have exhibited some considerable courage in publishing this piece given the way they were hacked last time.

I’ve edited my original post to make the reason for my original disgust at the ACI’s introduction clear.

bb, 10, I am American, and you’re entirely missing the point.  This is not about the inalienable rights of individuals.  Any person and any groups of individuals can leave TEC at any time they want.  The only dispute comes over whether the legal entities (either incorporated or unincorporated) that have joined TEC can leave, taking their property with them.

JOV, 12, asks “How can a court defer to the governing body of a church if it doesn’t first determine what that governing body is?”  It can’t.  That’s why the “principles of government” or “deference” approach requires attempting to determine what the governing body is.  The difficulty with the principles of government approach (again, see Jones v. Wolf, and also Serbian Eastern Orthodox Diocese v. Milivojevich (US 1976)) is that there is a limit as to how deeply civil courts can wade into analysis of a religion’s governing structure.  As the Serbian Eastern Orthodx case put it, they cannot engage in “a searching and therefore impermissible inquiry into church polity”.  It is, obviously, debatable as to where that line is crossed.  It’s also not clear what the result of running into that barrier would be, as I suspect courts might when adjudicating the dioceses v. TEC cases.

JOV, 12, also requests: “Please list what these mandatory provision are and explain why they would apply to a diocese that has left the TEC.  I have joined groups that required certian things of me, but when I quit those requirements no longer apply.”  To take the last part first, see the first paragraph of this post—you are unquestionably free to leave, and the rules don’t apply to you when you do.  (Note that in some cases, employment agreements for example, rules can apply after an individual has quit an organization.)  In TEC, the only apparent issue is what I stated above—whether entities can leave, taking their property.

Regarding the list of mandatory provisions, this really isn’t hard.  Read the TEC constitution, and when dioceses or diocesan organization is mentioned, see whether the provisions are mandatory or optional.  For example, in Art. II sec. 1, McCall emphasizes that it leaves the rules for choosing a Bishop or Bishop Coadjutor to the dioceses.  He’s absolutely right of course.  But the remainder of that first sentence restricts diocesan freedom by requiring that the Bishop Diocesan retire no more than 36 months after the consecration of the Bishop Coadjutor.  Then the first sentence of sec. 2 imposes an age minimum on Bishops and requires the consent of the larger church—through its dioceses, McCall rightly points out—to ordination and consecration.  Then the last sentence requires at least 3 bishops for ordination and consecration.  And so on—there are many more examples.  McCall is right:  none of them are explicitly a supremacy provision (the language of hierarchy, as he puts it).  But for him to focus solely on identifying that language, argue that the absence of it means that TEC does not possess the power to control dioceses, and to argue that the power of dioceses is essentially unrestricted, that I think overlooks a lot and goes too far.

Finally, JOV, 12 takes issue with my comment about unqualified accession.  I admit that I have not yet finished reading the paper, but I can respond to the first place where McCall attempts to show that unqualified accession is not irrevocable (the “technical” argument in a paragraph on p.21).  To respond, very briefly, to the points McCall makes there:

  1.  Yes, contracts are generally terminable.  But if an entity is agreeing to become part of and governed by another entity, it is not clear to me that you can always undo that act (except of course by the individuals that make up the entity leaving and forming a new entity that is free of the commitment).  To quote Juno, accession may be one doodle that can’t be undid.

  2.  After arguing that the analogy to treaties doesn’t work, McCall then uses the law of treaties to suggest that accession can be terminated.  That is ironic.  More directly, the remainder of the argument there is an argument from silence:  McCall says that if the drafters meant accession to be irrevocable, they would have used different language.  One can always argue that point, but it’s a dangerous and not always persuasive point because, with 20/20 hindsight, one could always have expressed something differently in legal documents.  The point is most persuasive where it can be shown that the other way was actually employed in the legal document in question, such that you know for certain that the drafters knew how to write it another way and meant something different by not doing so.  McCall does not make that argument.

  3.  McCall argues that the U.S. government can always modify a treaty.  McCall is right, but for that to mean anything with respect to TEC, one must assume that the dioceses are sovereign, which is the central question of McCall’s paper.  And, in today’s society, where we accept that philosopher kings in black robes make the final decisions on all sorts of things, McCall overlooks something significant when he says that the only appeal is to Heaven.

From pp.21-22, McCall seems to be promising more, so perhaps I’ll be persuaded later.  But I note that he assumes he’s proven that a diocese is not a subordinate and inextricable part of a higher body but rather that the diocese is the hierarchical structure.  I don’t think he has, for reasons stated above.

It should be stated that good analogies are scarce here.  The obvious case of sovereigns who joined and could not leave is the states of the United States, but as McCall would no doubt rightly observe, it took a war to prove that, and thankfully arms is not an option here.  (Unless one really buys into the metaphor of lawyers as hired guns, I suppose.)

Finally, to elaborate a bit on the argument about unqualified accession that I made above, examine the word that precedes accession:  unqualified.  According to dictionary.com, the relevant meaning of the word is “not modified, limited, or restricted in any way; without reservations”.  As a matter of logic, if one claims that one reserves the right to withdraw an accession at any time (or perhaps only when essential circumstances change or when some other set of conditions are met), one is not making an accession “without reservations.”

Part of membership in the “club” is to have full accession to the C&C;of the national church. Now, suppose in the C&C;it states that one needs to open the boiled egg from the large end, and suppose that the diocese of New Hampshire puts in its constitution that eggs must be opened from the small end. What is the appropriate response? It is for the national church to say to the diocese of New Hampshire that you are now longer part of our club. (And we all would all would be happy!)

#18 DavidH.  Thankyou for your very clear presentation.  ?  Do you think, especially considering Jones and Serbian Eastern Orthodox, they will be overturned on appeal?  2. If not overturned, do you think they will grant cert?  3. Given a “stare decisis” position of this USSC, and 5 Roman Catholics on board, what precedents, do you think they are most likely to apply and how would they apply them?

Mr McCall states his view that ACI’s introduction is an ‘essential complement’ to his paper. That is consistent with the work we have undertaken in concert with him. So in what then does the ‘disgust’ (as he puts it) of Mr Kennedy consist? That ACI considered ‘not releasing’ this paper? ACI published all of the previous fine work of Mr McCall. At issue was the best way to release this much longer and much more important document, and the concern was Mr McCall’s as well as our own. To make ACI the obstacle to McCall or the release of this paper is specious and unfounded, and speculation along these lines diverts attention from the material itself.
We are pleased to have been asked by Mr McCall to release this document and others previously and have consulted with him in detailed terms about its content, use, and potential.
We would also call attention to the essay on US episcopalian polity compared with that of the Church of England in the most recent issue of “International Journal for the Study of the Christian Church” (disseminated to all Bishops at Lambeth).
The danger all along is that the actual polity of the Episcopal Church would be ignored, would be said to be so unique as to be un-anglican, or would be transmuted into a hierarchical system focused on a ‘national CEO’ foreign to its logic. Issues of substance need to be engaged. Leaving a broken system in its present state is creating huge problems. McCall and ACI are in complete agreement at this point.
Hopefully the discussion can focus on the details of his paper and the challenge faced. The unique historical character of anglicanism in the US must be grasped and dealt with. We applaud Mr McCall for his hard work in this area. Grace and peace.

One other quick point.  Early on, in defining what his paper will do, McCall states as follows: 

Third, this paper focuses on TEC’s constitution, which states that it “sets forth the basic articles of government of this Church.” Any attempts that have been made in the past or that might be made in the future to alter TEC’s constitutional governance by canon rather than by the specified procedures for amending the constitution would be unconstitutional and void ab initio.

As far as these statements go, they’re unobjectionable.  Yes, attempts to alter the constitution by canon would probably be illegitimate.  (The same question has come up on the federal level, with the Religious Freedom Restoration Act for example.)  But I don’t think McCall can justifiably ignore the canons entirely, which he does, in inquiring into hierarchy.  McCall offers this explanation in fn 4:

As stated in the text, this paper addresses TEC’s constitution because the constitution is controlling as a matter of law. The result would not be different, however, if the canons were included in the analysis. The key hierarchical language is not used of General Convention in either the constitution or canons. Many dioceses continue to this day to follow policies or practices that are contrary to general canons, including open communion, same sex weddings and blessings, consecrating bishops who have not received necessary consents in the form required by the canons, and refusal to ordain women to the priesthood. Dioceses that do defer to General Convention do so as a voluntary matter pursuant to provisions in diocesan, not general, canon law. This is not a hierarchy; it is a voluntary association.

One can break this down as follows:

1.  TEC’s canons also lack the key language.
2.  Many dioceses violate the canons.
3.  Dioceses defer to TEC only as a voluntary matter pursuant to provisions in diocesan canon law.

As I’ve suggested above, I think argument 1 adopts too narrow a view of the matter.  Argument 2 does not establish whether TEC lacks the ability to enforce its canons or merely the will in certain cases.  (Nor is the fact that people violate a law generally thought of as a persuasive argument that the law lacks any force.)  The third point is the most interesting, but again, it does not answer the key questions:  Is there a hierarchy?  and Can accession be withdrawn?  Point 3 can be taken as evidence of a lack of hierarchy (a brick in a larger wall), but it does not establish that by itself.

Would someone please provide a link to the article distributed at Lambeth Seitz mentions?

EmilyH, 20, thank you for the kind words.  I’m afraid I can’t your questions.

“Do you think, especially considering Jones and Serbian Eastern Orthodox, they will be overturned on appeal?  2. If not overturned, do you think they will grant cert?”

I’m not sure what decision(s) you’re referring to.  I tend to believe that the SCotUS is done with church property, unless a state goes off the reservation.  Also, today’s Supreme Court does so little—takes so few cases—that it is an optimistic person indeed who bets on cert being granted.

If you’re talking about the Virginia litigation specifically, if I were a betting man, I’d put the odds at better than 50/50 that 57-9 is either reinterpreted or ruled unconstitutional on appeal.  OCICBW, and I don’t think I’d say the odds are very much better than 50/50.

“3. Given a “stare decisis” position of this USSC, and 5 Roman Catholics on board, what precedents, do you think they are most likely to apply and how would they apply them?”

This is an interesting question.  Various strategy memos have suggested that judges who are Baptists and the like are more likely to rule for congregations, while judges who are part of a more hierarchical church are more likely to rule for the general church.  It’s not clear to me that this is based on anything more than guesswork and stereotypes.  And there are always two ways to look at things.  For example, do 5 Catholics tend to favor finding a hierarchy, or are they going to say that TEC is not like the RCC, so therefore it is not hierarchical?

Color me a “stare decisis” skeptic too.  It is applied when the Supreme Court wants to apply it.

#23 Yes, I second that - Prof Seitz?

S-T-M, here’s a link to the table of contents.  It appears you want the Podmore article, although a number of them look interesting.  But it does not seem to me that the journal’s articles are freely available online.

The pricing may vary country to country, but the informaworld site is telling me $70 for the whole issue and $28 for the Podmore article alone.

Thank you DavidH.

The Podmore essay was the one I had in mind. McCall has also consulted it, if memory serves. I was teaching PhD students at the LCMS seminary this summer, in St Louis. It was useful to consider by contrast the way in which Lutheran Churches came into form in the New World, with various languages, Old World national churches, and how they processed the challenges of relationship. Podmore and McCall (and American church historians) show how tied up the polity of the fledgling church was with colonial secular government. I would also recomment the history of the Scottish Episcopal Church published by Gavin White, for perspective on the Seabury issue as seen outside the politics of the present period.

Seitz-ACI
My comments (and disgust) are based on two sections of the ACI introduction. In the first they write:
“It is the possible character of some of the solutions opened by the legal analysis this paper provides that has given us pause”

This seems to indicate at least some hesitation in publishing the piece and it gives a reason: “the possible character of some of the solutions opened by the legal analysis”

In case there is any doubt about what sort of character they mean, they write:

“There are more than simply legal issues at stake, and even they divide those of conservative persuasion.  Neither does it make clear how divisive some versions of this strategy are within the Communion as a whole.  We think here of the project to inaugurate a separate Anglican Province in North America.  What is legally permitted may not on all occasions be theologically or morally justifiable.  Our caution, therefore, is that the paper may provide justifiable constitutional license for a course of action that we believe in some instances to be arguably “legal” but nonetheless deleterious to both Gospel truth and Christian unity.”

It seems that 1. The ACI thought twice about publishing and 2. they thought twice about it because they worried that it might aid those who planned to depart.

I am happy that they ended up publishing…kudos…but if their “pause” had won out, I dare say our atty would not have gotten hold of this paper and many parishes or dioceses planning to go but not yet gone would not have seen it either. I’m glad some have but I remain surprised and disappointed that there was any pause at all, at least for the reasons stated in their introduction.

1. Mr McCall was not waiting for the kind of publication that has occurred for the work of attnys such as you intimate to profit from his work.
2. The ‘pause’ was not entirely up to us, but inhered with concerns from Mr McCall.
3. Your remarks belong to some context other than the wider one envisaged by the paper and its contribution, and so it might be good to let that go and let the paper get the proper attention it deserves.

Your comments about ACI were always only speculative and have been shown to be inaccurate. I suggest if you wish further confirmation of that you speak directly with the author, Mr McCall. That will keep this from being extended unnecessarily.

The solution going forward is blazingly clear.  In the future, the Anglican Communion Institutionalists may salve their consciences by refraining from publishing anything and everything they write.  That way, they never have to agonize over the earth-shattering implications of their transcendently brilliant manifestos.  Similarly, the rest of the world is protected from the tectonic shifts in the fate of human civilization that occur every time we read ACI emissions.  It’s a Win-Win situation all around!!!

Seitz-ACI, thanks to ACI for publishing Mr. McCall’s piece.

Um - read the paper, it is earth-shattering.  You can see the attention it is getting.

Mr. McCall’s opening up of the “legislative intent” via the legal powerhouses who designed the original Constitution and Canons is a most welcome contribution!

And now I understand Ubuntu better:  “Ubuntu = ‘I see the hierarch in you and you see the potential to liquedate property in me!’”

Mr. McCall’s paper is a brilliant piece of legal analysis and reasoning.  (That is an unqualified endorsement.  Unqualified in the context that I am not a lawyer and am therefore not qualified to offer it.  However, my law school professors would probably be disturbed at hearing me called either an expert or a complete novice.  Their possible reaction is not of much significance anyway since, to the best of my knowledge, they are all dead.)

Whether TECUSA is hierarchical or otherwise is an issue framed in some of the law suits filed by TECUSA.  There is another substantive issue, in my view, which appears to be getting much less attention at Mr. McCall’s level of expertise.

That issue is whether the actions of a church, hierarchical or otherwise, can take precedence over the laws of the individual states with regard to determination and transfer of ownership of real estate.  The judge in the Virginia case pointed out that TECUSA had had some 30 years to record in the proper jurisdictions the transfer of ownership of church real estate under Dennis but had not done so.  He seemed to imply that that is significant.

It seems to me that there might be a First Amendment establishment issue if a church is allowed to make its own rules regarding ownership and transfer of real estate which are in conflict with the laws of the state in which the real estate is located.  I think this issue may have been framed in one of the California cases, but it does not seem to be getting the attention the issue of hierarchy is getting.  If TECUSA wins at the state level, this issue might be useful in getting a parish or diocese to the U. S. Supreme Court.

How about it, Mr. McCall, mousestalker, and others?

I have now finished McCall’s article.  It is as it seemed back in post 8: interesting and insightful. 

I do not think that a court will rule dioceses are the hierarchy.  Papers like McCall’s could, however, persuade a court to conclude that it cannot decipher the principles of government in TEC without an impermissible constitutional inquiry.  That would be a victory for the departing dioceses.

Note that this paper only reinforces lawsuits against one or more congregations, however, because whether the hierarchy is the diocese or TEC, the congregation(s) still lose, and McCall does find hierarchy in the dioceses.

The Podmore article may be read and downloaded for no charge from this link.  It is written from the point of view of an English legal scholar, who is both outside and above the fray.  At the same time, however, his judgments have to be taken with a grain of salt, especially where they depend on the “argument from silence”—-as when he concludes that because no limits on the power of General Convention are expressed in TEC’s Constitution, its powers therefore must be unlimited. (Could General Convention prescribe the Book of Mormon for Sunday reading from the pulpit? Hardly. So, pace Mr. Podmore, there are limits to its powers, even if they are unwritten.) Here is an excerpt (I have omitted some of the footnotes):

Changes in diocesan constitutions do not require approval at national level,
and the Constitution is silent as to what happens when a diocese amends its constitution so as to qualify its accession to the Constitution and Canons of The
Episcopal Church. This may be tested shortly, since the Constitutions of the
Dioceses of Quincy (Illinois), Fort Worth (Texas), Pittsburgh (Pennsylvania)
and San Joaquin (California), in articles last amended respectively in 1993,
1997, 2004 and 2005, all qualify their accession to the national Constitution
and Canons. . . .

The San Joaquin diocesan convention voted in 2006 to remove all references
to The Episcopal Church from its Constitution and Canons, the amendments
being subject to confirmation at the 2007 convention. (Another amendment
would change Article 1 of the Constitution to state that the diocese’s territory
‘shall embrace but not be limited to’ the fourteen Californian counties that it
covers.45) This will effectively raise the issue of whether a diocese can secede
from The Episcopal Church. Is being ‘admitted into union with the General
Convention’ a one-way ticket, or is a return journey permissible? As John
Shepley has pointed out, the question of whether states could secede from the
Union into which they had entered was the fundamental dispute which prompted the American CivilWar. The secession at that time of nine dioceses to form the short-lived Protestant Episcopal Church in the Confederate States has been cited as a precedent for possible future secessions.

A comparable issue is increasingly arising in the relations between dioceses
and parishes or congregations.47 Each congregation (or group of congregations
with a single minister) had to be represented in the state convention, because
the convention would effectively be exercising jointly the rights of the congregations.

(Maybe it is in part to that principle that the number of dioceses in the
USA should be attributed; if every congregation is to be represented directly
in the diocesan convention, the number of congregations must be limited.
Most English dioceses have far more parishes and benefices but, unlike their
American counterparts, they are not necessarily directly represented in the diocesan
synod and do not need to be, because it is the diocese not the parish that is
the fundamental unit.) Because all congregations in The Episcopal Church
would be represented in the diocesan convention, the convention’s powers
over the congregations would be unlimited, notwithstanding the fact that originally
power resided with the parishes as the fundamental units. Just as the General Convention can change its Constitution and Canons without the agreement
of every diocese, so the diocesan conventions can change theirs without the agreement of every single congregation.

But once congregations have effectively pooled their sovereignty in a diocese
in this way, can they secede from it? In recent years, a small but growing stream
of congregations has been leaving The Episcopal Church. Between 2003 and
2007, about 45 congregations out of 7,500 left, and, in 2006, 13 parishes in
the Diocese of Virginia alone (accounting for some 10 per cent of the diocese’s
active membership) voted to do so. Dioceses are pre-existing entities that are
admitted into union with the General Convention, but the position regarding
congregations seems less clear-cut. Although it is historically true that the
original dioceses, such as the Diocese of Virginia, were formed by pre-existing
parishes (including some of those that have now voted to leave), Canon I.13.2
of the Canons of the General Convention now says that ‘the establishment of
a new Parish or Congregation . . . is left to the action of the several Diocesan
Conventions’ but the default position is that, until a diocesan canon or regulation
is adopted, ‘the formation of new Parishes, or the establishment of new
Parishes or Congregations within the limits of existing Parishes, shall be
vested in the Bishop of the Diocese, acting by and with the advice and
consent of the Standing Committee thereof’.50 Interestingly, however, Canon
10 of the Canons of the Diocese of Virginia envisages a group of people with a
priest, a place of worship and a current budget petitioning for recognition as
a church within the Diocese.51 Over the years, in The Episcopal Church as a
whole some congregations will have had been in existence before joining The
Episcopal Church, whereas others may have been formed as part of a diocesan
initiative. Thus, some congregations at least will have a sense of their identity as
prior to that of the diocese to which they belong, and in some cases that will have
been the case historically as well as in principle. Given that The Episcopal
Church is a church that congregations have commonly joined, it is understandable
that, regardless of their own particular history, its congregations should
believe that they should have the right to leave it.

The question that is posed when parishes or congregations leave (and may
also arise if dioceses leave, although there is no recent precedent for that) is
that of what happens to their property. Originally, the property belonged absolutely
to the parishes, but in 1979 the General Convention adopted the so-called
‘Dennis Canon’, which declares that ‘All real and personal property held by or for
the benefit of any Parish, Mission or Congregation is held in trust for this
Church and the Diocese thereof in which such Parish, Mission or Congregation is located.’52 This is another example of the mismatch between The Episcopal Church’s historical ecclesiology, still deeply ingrained in the thinking of many of its members and still reflected in many aspects of its structure – that of a church created from below in which the parishes and congregations are the original and fundamental units – and the more centralist ecclesiology reflected in some aspects of the Constitution and Canons.54 This mismatch has arisen because, although The Episcopal Church is highly decentralised and its polity has many features that are confederal in character, as we have already seen it is ultimately a unitary body, in that the Constitution places no limits on the decisions that the General Convention may take and those decisions do not require the consent of individual dioceses or indeed congregations. The Episcopal Church’s nature as a church constructed from below, whose fundamental units are its parishes and congregations, is in tension with its constitution as a unitary church, in which the conventions have unlimited power.

45 Quoted in a report by DW Virtue, 2 December 2006, available at http://www.virtueonline.org/portal/modules/news/article.php?storyid1/45100, accessed 25 July 2007 (my emphasis). See also Episcopal News Service article, 4 December 2006, available at http://www.episcopalchurch.org/3577_80194_ENG_HTM.htm, accessed 28 July 2007.
47 In the canons, principally Canon I.13, ‘Of Parishes and Congregations’, and Canon I.14, ‘Of Parish Vestries’ (Constitution and Canons, pp 49–50), the terms ‘parish’ and ‘congregation’ are both used, but the distinction between them is not entirely clear (see also p 67 below).
50 Constitution and Canons, p 49: Canon I.13.2(a), 2(b).
51 Constitution and Canons of the Protestant Episcopal Church in the Diocese of Virginia, p 19: Canon 10, s 2,
available at http://www.thediocese.net/diocese/c&c;/cc05.pdf., accessed 4 August 2007.
52 Constitution and Canons, p 40: Canon I.7.4.
54 The official commentary states that the ‘Dennis Canon’ is ‘considered by some to be declaratory of existing law’ (White and Dykman, Annotated Constitution and Canons, p 301, my emphasis).

Seitz-ACI,

“1. Mr McCall was not waiting for the kind of publication that has occurred for the work of attnys such as you intimate to profit from his work.”

Yes, that is good to know, and I am very thankful for Mark McCall’s willingness to share his work with you and others.

“2. The ‘pause’ was not entirely up to us, but inhered with concerns from Mr McCall.”

Yes, I am aware of that. But your introduction indicates that you also were hesitant to publish the paper because of,  “the possible character of some of the solutions opened by the legal analysis.” Is that untrue?
“3. Your remarks belong to some context other than the wider one envisaged by the paper and its contribution, and so it might be good to let that go and let the paper get the proper attention it deserves.”

I agree with the second half of this 3rd point, not the first. I think it is important for people, especially those in the “wider context” of being sued or contemplating a departure, to have both Mr. McCall’s paper and the ACI’s thoughts and worries about the possible “misuse” of the paper at their disposal. 

“Your comments about ACI were always only speculative and have been shown to be inaccurate.”

Not really. They were/are always based on what you write in your introduction.

“I suggest if you wish further confirmation of that you speak directly with the author, Mr McCall. That will keep this from being extended unnecessarily.”

I did. And, as you noted above, the concerns which gave you pause were not “entirely” your own. I am thankful for that. At the same time since you spelled out, presumably, your Own concerns accurately and clearly in your introduction, excerpts of which I have quoted above, I am not quite sure why you suggest I have inaccurately characterized your position? Are you now denying that part what gave you pause were the concerns identified in this paragraph:

“There are more than simply legal issues at stake, and even they divide those of conservative persuasion.  Neither does it make clear how divisive some versions of this strategy are within the Communion as a whole.  We think here of the project to inaugurate a separate Anglican Province in North America.  What is legally permitted may not on all occasions be theologically or morally justifiable.  Our caution, therefore, is that the paper may provide justifiable constitutional license for a course of action that we believe in some instances to be arguably “legal” but nonetheless deleterious to both Gospel truth and Christian unity”

If so, I’ll happily apologize.

As for letting this go,I agree, lets do that so that attention may be focused on Mark’s paper. I’ll let you have the last response.

Thank you, Chancellor for the link to the Podmore article.

I am reading and discussing the McCall article and the obvious analogies between the confederation-federation transition in US governmental/constitutional history and the international provinces of the Anglican Communion/proposed covenant is of course striking.  An early example in which John Jay asks that individual states rescind laws they passed that conflict with the national treaty between the US and England at the end of the Revolutionary War, is pointedly like what the Instruments of Communion have asked TEC to do.  The difference is that the new states of the United States followed Jay’s advice, while TEC does not recognize, much less concedes to, wiser council than its own self arrogations.

Thank you, Mr. McCall for writing this, thank you ACI for considering it and articulating your concerns about its implications, and thank you both for setting a framework for discussing them, with reference to your respective concerns.  Most generous and kind, Mr. McCall, is your casting your piece in language that is clear and readily accessible to non-attorneys.

(Does anyone know how or if Grotius is relevant to any of this?  I need to check but would appreciate any clues offerred.)

“For God has given conscience a judicial power to be the sovereign guide of human actions, by despising whose admonitions the mind is stupefied into brutal hardness.” Hugo Grotius

Getting a “File Not Available” error on Chancellor’s link.

DavidH, The link may be one of those that changes after it is used once, since it involves a query.  Try this: Go to the website for The Ecclesiastical Law Journal, and click on the link to issue #43, which will give you a table of contents. Then choose either the “html” or “pdf” link under the title of the Podmore article.

Chancellor, 43, that worked.  I recommend that for others.  Thanks.

I agree that the issues Podmore notes in his otherwise helpful historical vis-a-vis (CofE and TEC) are patient of other conclusions; and the point of the Introduction, prepared in consultation with Mr McCall, was to note that one way to remedy a hierarchy-above-diocesan-level polity would be to focus on Bishops electing to remain in the Anglican Communion via the Covenant undertaking. I know that several dioceses understand themselves, in their own diocesan canons, to be sovereign. As STM has noted, ACI sees this polity problematic as an opportunity. Mr McCall has simply done an excellent job indicating the historical and legal problems of 815 declaring itself to be ‘the hierarchy’ and ACI has made this point repeatedly in respect of the PB and the Communion Partners Plan, and in view of the american colonial realities as these would play out over time. At least Podmore sees the dis-analogies clearly when it comes to the history of the American Episcopal Church compared with the Catholic-Anglican polity in the C of E. This is why I mentioned his essay, though McCall covers much of the same ground from within the context of the episcopal church in the US.

At first I didn’t have my reading glasses on: I thought the headline was, “Is the Episcopal Church heretical?”  And then I saw the part about “Is the Pope Catholic?” so I thought the article asked and answered its own question right from the start.

But now that I see my error, I would say, Yes, the Episcopal Church is hierarchical.  The revisionist/neo-pagans are on top, and the orthodox are on the bottom about ready to be flushed down the drain.

#45 C.Seitz writes:

... one way to remedy a hierarchy-above-diocesan-level polity would be to focus on Bishops electing to remain in the Anglican Communion via the Covenant undertaking.

This is interesting, Chris - but how can this be accomplished after Lambeth (Rowan Williams, Drexel Gomex, Kenneth Kearon, and Gregory Cameron, to name a few) made it very very clear to us that the Covenant would be shopped to the provinces for acceptance (in TEC’s case, some day through General Convention) not through bishops or their dioceses?

#18 DavidH - Earlier you write, “This is not about the inalienable rights of individuals.”  I did not quote from a document about inalienable rights of individuals.  I quoted from the Declaration of Independence, not the Bill of Rights.  As we know, the Declaration of Independence was representing the will of individual States and Commonwealths, the clearest legal entities at the time.  The type of argument you make is the same one the king of England made - people can leave, but not the property - and we know how that turned out.

bb

Furthermore, to build on what BabyBlue said, Lambeth also made if very clear that the Anglican Covenent will not be about excluding anyone, but including everyone, except perhaps border crossers.  The idea that the heretetics will some how be excluded the the orthodox will get to stay in the Anglican Communion should be descarded when it is clear that the present person claiming the See of Canterbury considers both groups to be equally valid.  The Church of England will do everything in its power to draw up a Covenant that will allow its fellow Anglophonic provinces to stay in (which happen to be the most liberal ones), and won’t cry many tears over loosing Africa.

Ms Blue—this issue has been discussed in several fora, so apologies to others for repetition. In NYC in April G Cameron acknowledged that ‘provincial approval’ was the easiest, most tidy, but that TEC polity was such that if the province (GC) turned the covenant back, that would not foreclose others relating to dioceses etc from the wider Communion. And of course WDG continues to meet, with Radner and Gomez from ACI and other colleagues, so the matter requires further work. So ‘shopping’ (your language) may be to provinces in the first instance (if that notion persists) but the reality of individual provinces and their respective polities remains a learning curve. Hence the importance of Mr McCall’s essay.

I confess that I haven’t read the full load of comments on this post; I believed (on the basis of long experience) that my time would be better spent reading all eighty-some pages of Mr. McCall’s paper.  (I also confess that I largely skipped the extensive footnotes.)

This is a masterly and well-written piece of work; I urge everyone here to read it through in its entirety. 

But many of the comments I have seen here seem astonished or offended that ACI continues to hope and pray for a coherent Communion-based solution to the American problem.  This is simply silly.  Is there really anyone here who would not prefer forceful Communion action to defend orthodox belief?  I personally have concluded that effective action from the currently-constituted Instruments of Unity is unlikely to the point that it would amount to a decisive proof of the existence of miracles, but surely the ecclesiological views of such distinguished theologians as Drs Philip Turner, Christopher Seitz, and Ephraim Radner are not to be lightly dismissed by any sort of ad hominem sloganeering.  And I can hardly condemn them for having more patience (a Christian virtue) than I do.

We are all on the same side.  Mark’s paper is a tremendous work of research, and moreover eminently readable.  I’m almost as grateful to ACI for publishing it as I am to Mark for writing it.

I’m a “Roman”, but I’m not saying this for you to become Roman too (at least not this time):
JUST LEAVE TEC.
Please, do it.

Hi Craig,

“But many of the comments I have seen here seem astonished or offended that ACI continues to hope and pray for a coherent Communion-based solution to the American problem.”

That’s not me. I hope that this comes to pass.

Seitz-ACI, I agree.

That was my understanding from Lambeth as well.  They’d rather it be provincial recognition, but recognize that it may not be and thus that diocesan recognition may have to be an option.

Obviously, 815 won’t want that, so it will be interesting if 815 will succeed in gaining that.

I also am glad that the ACI posted this fascinating document.  I am able to stand a little rhetorical hand-wringing, as long as the *action* belies the hand-wringing.  ; > )

The issue of diocesan approval of the Covenant has been chatted about on several threads here.

Here:
http://www.standfirminfaith.com/index.php/site/article/15490/#268020

And here:
http://www.standfirminfaith.com/index.php/site/article/15760/#271720

bb, 47, wrote:

#18 DavidH - Earlier you write, “This is not about the inalienable rights of individuals.” I did not quote from a document about inalienable rights of individuals.  I quoted from the Declaration of Independence, not the Bill of Rights.  As we know, the Declaration of Independence was representing the will of individual States and Commonwealths, the clearest legal entities at the time.  The type of argument you make is the same one the king of England made - people can leave, but not the property - and we know how that turned out.

Are you serious?  Does any of the following ring a bell?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

You also need to brush up on your history.  The king didn’t tell the colonists to go ahead and clear out but leave the colonies behind.  He did not want the colonists to leave.  He wanted them to continue to work and pay taxes to him—i.e. to keep the property and the people. 

bb, your personal bias is, of course, unavoidable and understandable given your deep involvement in the Virginia litigation.  But to say that it clouds your assessment of things at times is to speak euphemistically indeed.  The Virginia litigation is not the revolution all over again.  Nor is it even a case of David vs. Goliath.  Don’t both Truro and TFC have a larger budget than the Diocese of Virginia?

#49 Chris, well that’s interesting too.  I would support such a thing, by the way.

However, the Lambeth leadership were quite clear about their Covenant timeline when they spoke to the press in Canterbury, including the men you mention.  The Proposed Draft Covenant would go to the Primates first of the year, then to the ACC meeting in the Spring, and then out to the provinces for approval. But the emphasis was clearly on the provinces, not the dioceses.  I could see then why you would find Mark McCall’s research helpful, then, to assist the idea of going around the provincial timeline when it comes to TEC, especially since it’s so unlikely for TEC as a province to accept the Covenant.

I see that you don’t mention the Archbishop of Canterbury in your response above.  It seemed quite clear at Lambeth that Rowan Williams personally endorses working through the provinces and not directly through dioceses. He’s out to forge a Church made up of provinces in a certain amount of time and in fact, backed away from being closely associated to diocesan bishops when he described his future engagements - which frankly surprised me, especially after reading his letter to John Howe.  He consistently talked in terms of provinces, not dioceses.  But of course, he’d backed away from two legally consecrated diocesan Anglican bishops - Gene Robinson and Martyn Minns - but is able to stay “technically” in communion with them by working through the provincial structures, to which they both belong.  This way, he gets it both ways, remaining actively engaged at the Anglican provincial level, while rising above the somewhat unpleasant fray at the diocesan level.  Quite an Anglican “via-media” solution! 

Now how would we get Rowan off his provincial cloud?

I did hear about the kind of ideas you are proposing through a bishop on your board while in Canterbury, but I didn’t see much evidence of an opening to your proposals there, well, except for perhaps that Kenneth Kearon (whom you also don’t mention in your comment above) was seen parking cars at Lambeth.

bb

DavidH - question about #8 and #18

McCall acknowledges that new dioceses, upon joining the Episcopal Church, are required to make an “unqualified accession” to the constitution and canons of TEC.
...
if one claims that one reserves the right to withdraw an accession at any time (or perhaps only when essential circumstances change or when some other set of conditions are met), one is not making an accession “without reservations.”

It seems there are 2 aspects to ‘unqualified accession’ with regards to hierarchy.
1 - that some of the canons involve mandatory provisions that imply the national church (ex. ‘at least 3 bishops’), therefore a hierarchy is involved above that of the diocese.

2 - But the ‘accession’ was to the canons themselves, not to the national church. So what if it were the case that ‘unqualified accession’ to the canons would necessitate leaving the national church.
Then unqualified accession would in effect be contradictory, and the assent of a diocese to that effect could not and should not be used to prove that it bound itself to be part of a hierarchy no matter what.

It seems that if what you say about court decisions is true, the courts would agree point 1 and decide there is a hierarchy involved. But when it comes to point 2 they would regard this as intruding into the theology of the church and stop there, deferring to whatever the national church wished. It doesn’t seem right.

And I’m not trying to be a wise guy when I say that accession to the canons might be rendered contradictory by actions of the national church. Title 4.1 d states that clergy should not violate the rubrics of the bcp, one of which is that they “do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, and to contain all things necessary to salvation”. But what if the national church seems determined to violate that by promoting people who believe that Holy Scriptures are (to pull a phrase completely at random) “pre Darwinian superstition and post Darwinian nonsense”?

Are the 2 aspects of unqualified accession really seperable like this? It seems like 815 is taking advantage of the fact that the court system will believe they are. I don’t see that dioceses wishing to separate are the ones who are looking for technicalities, etc.

Mmmpf.  On the notion of “unqualified accession”, the McCall paper discusses at some depth the impossibility of one session of a legislature limiting the powers of some future session.

Consider, for example, the repeated efforts of Congress to limit the uses to which your Social Security Number may be put.  In 1936, we were assured that it was completely confidential.  In the ‘60s, it became essential to identify your tax return.  In the ‘80s, your kids had to have a number to qualify as dependents.  Now your bank uses that number to identify your accounts and loans.

In the ‘70s, dioceses were assured by GC that their views on WO would be respected.  OK, sure, now about that real estate in Florida ...

Baby Blue raises the question of Covenant-making by dioceses:  is that really still an open question?  The answer is :  Yes, it is.  It is, because the Covenant Design Group, while thus far operating under the presumption of provincial representation in covenant-making, has done so on the basis of presumed legal expediency, vis a vis ecclesial entities recognized by the ACC (the only formal group of the Communion that has a documented framework for such recognition).  However, that has been only a presumption, not a commitment.  The question of diocesan covenant-making has already been raised in the Group, and it is still open.  Events of the past 8 months—since the St. Andrews session of the Group’s deliberations—have rendered less certain the presumption of provincial “hierarchy” in this regard;  McCall’s paper is one important piece in emphasizing this incertitude with regard at least to TEC;  and the Archbishop of Canterbury, as we know, has already publicly laid out the basis of a diocesan-episcopally-centered ecclesiology for the Communion (although not directly in relation to the Covenant).  Among others on the Group, I will be pressing this point concretely at our upcoming meeting in 2 weeks.  Of course, even were the Covenant Design Group to recommend—as ACI has already done—that the Covenant have the provision, under certain circumstances, for diocesan adoption (and the CDG may choose not to do so anyway), that does not mean that our recommendations will be followed.  But all this is what debate and argument, reasoning and persuasion within the Church are all about.  Not to mention prayer!

Anglican Curmudgeon has some additional take on this topic which I think all should digest.  I made the following comment over there:

I think the paper is important. It covers much material very well. One point that could be added to my mind is the absurdity that the Episcopal Church in the United States is making that the top of it hierarchy is General Convention. I see no way in which a body elected by the members, albeit indirectly, meets the idea of hierarchical as envision in federal case law.

Deferring to the decisions of a hierarchical church would seem to come in part from the idea that to go behind a decision reached by such a body is to cross over the line into faith and doctrine. In the Rider case it was said in effect there is no doctrine to the Episcopal Church save that which is in its cannons or similar documents. There are no unwritten elements such as Traditions (note cap T) which a church body must hear uniquely.

The Rider case established, at least in part, the idea that which is not prohibited is acceptable. This would also apply to a diocese leaving the Episcopal Church in the United States. 

If you’re talking about the Virginia litigation specifically, if I were a betting man, I’d put the odds at better than 50/50 that 57-9 is either reinterpreted or ruled unconstitutional on appeal. 

[24] Posted by DavidH on 09-07-2008 at 09:13 AM • top

I disagree.  I might agree that a state could not pass such a law today, but at the time states were not subject to the bill of rights.  If I remember correctly, the Federal Courts have already ruled it, that there was nothing illegal about slavery.  The latter outlawing of slavery did not give slaves rights to claim slavery was always illegal.  The Episcopal Church’s claim that the law is not constitutional because it could not be enacted today fail because of the same logic. It was constitutional at the time it was enacted, as it stands it agrees with the neutral principles of law. 

It has been the law for since long before anyone living today was born.  Except they assign the case to some radical Federal Judge, this matter will end in the Courts of the Commonwealth.

# 58 Spongjohn You wrote: “And I’m not trying to be a wise guy when I say that accession to the canons might be rendered contradictory by actions of the national church. Title 4.1 d states that clergy should not violate the rubrics of the bcp, one of which is that they “do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, and to contain all things necessary to salvation”. But what if the national church seems determined to violate that by promoting people who believe that Holy Scriptures are (to pull a phrase completely at random) “pre Darwinian superstition and post Darwinian nonsense”?
On this, I wondered, but thought that Presbyterian v. Hull would be controlling.  I.e., the national Presbyterian Church, not the Georgia church got to make that call.  Maybe DavidH could jump in here?

From mine of above: but at the time states were not subject to the bill of rights.
[62] Posted by Scott+ on 09-08-2008 at 09:39 AM • top  

I made a mistake here, I did not mean bill of rights but mean to say Federal constitutional limits.

OK, interesting paper.  By now, we understand the point the EC is not hierarchical.  That’s nice!  But the National Church will not relent.  The argument that we work within our diocese for change ignores the reality that most dioceses in TEC are controlled by those on the progressive/liberal or revisionists position.  The Bishops who claim to be traditional and moderate are playing directly into the hands of the other theological side as they seek to walk down the middle of the road and be bishop of all, which is not leadership but abdication of one’s leadership responsibilities. 

Now, I have said for a long time the battle was at the diocesan level (nothing to stop a diocese from leaving) but there are only a few dioceses that traditionalists hold a political majority, i.e. Ft. Worth, San Joaquin, Pittsburgh, and a few others.  The rest are simply not there!  Central Florida is clearly lost as well as the rest of Florida and parts of Texas as well and most other states are in similar situations. 

Nice argument but it not going to do anything to help those in most dioceses….they will continue to be marginalized until they leave, are forced out, or capitulate.

Sorry!  I misread the article to read:  “Is the Episcopal Church Heretical?”
anglicanfathertom

Have only brief moments to respond here.

58, SJ SP (great user name by the way), I think we agree—TEC could act in a way that is contradictory, raising questions about what accession means with respect to that act.  But I think you misunderstood my point about a court concluding it cannot act.  If a court were to conclude, because of Serbian Eastern Orthodox principles, that it cannot decipher the principles of government in TEC without an impermissible constitutional inquiry, I do not believe the result would necessarily be deference to TEC.  It would probably depend on the state, but the result could very well be that the civil court concludes it lacks the power to adjudicate the dispute.  Courts dislike reaching that conclusion, but it does happen.  In that case, the party in possession (usually the separatists) would win by default.

59, Craig Goodrich, you point to something significant—TEC lacks constitutional provisions that provide clear limits on what TEC can do.  There is, for example, no clear limited government and no TEC 10th Amendment.

62, Scott+, federal law generally holds that if something is unconstitutional, it is unconstitutional retroactively.  (If you don’t believe me, Mike Watson wrote about this in one of the web posts on his site at one point.) 

Also, the CANA folks brought suit under the statute in 2006.  As applied, the law is subject to constitutional law in effect at the time.  To use the analogy you used, slavery may not have been unconstitutional or illegal in 1859, but if you tried to enforce it in 1869, you’d have a problem.  (Or at least you should have, assuming that Roger Taney and company would have acted as judges should act.)  If an appellate court believes the law is unconstitutional, I don’t think the argument that it was constitutional in 1867 is going to (or should) carry the day.  Nor do I think that’s where the crux of the likely appellate dispute lies.

Also note that barring some very unusual development, the only way the Virginia litigation gets before a federal court is on appeal to the Supreme Court.  It goes from the trial court to the Supreme Court of Virginia.  There is no right to an appeal at either step (state or federal supreme court).

Posted by DavidH on 09-08-2008 at 10:53 PM

62, Scott+, federal law generally holds that if something is unconstitutional, it is unconstitutional retroactively.  (If you don’t believe me, Mike Watson wrote about this in one of the web posts on his site at one point.)

The only point with any validity is that upon enactment the Commonwealth violated the Contact Clause.  The idea here is that by enacting the law the Commonwealth changed a contract between the parish and the diocese.  However, the Contact Clause did not apply to the commonwealth when the law in question was enacted.  What was it constitutional then is the question.  Clearly, titling of property in Virginia after the enactment has no claim of the Commonwealth’s violation of the Contract Clause.  Any and all contracts between the diocese and the parish were made within the framework of existing law. 

It would be interesting if a court were to open this flood gate because it would open claims by the Bishop of London to much property in the United States.  Unilateral actions by the various states transferred property from the Church of England and the Crown.  A claim could be made that the enactment of these laws violated the Contract Clause. 

I have seen not seen any serious claim that the law itself is unconstitutional.  It embodies the neutral principles of law approach acceptable to the SCOUSA.  It is a clear framework to address legal actions.  It makes clear what will happen if a certain structure is used for holding of property by a religious group.  There are many ways in which religious groups can avoid the applicability of the law to them by using a specific method of holding title to the property. 

In the Virginia case most of the parishes were established after the law was enacted.  The parishes and the diocese agreed to the holding of property in this fashion.  There were other options available which were not taken.  Choices were made in the face of existing law which is being properly enforced.

Also, the CANA folks brought suit under the statute in 2006.  As applied, the law is subject to constitutional law in effect at the time.  To use the analogy you used, slavery may not have been unconstitutional or illegal in 1859, but if you tried to enforce it in 1869, you’d have a problem.  (Or at least you should have, assuming that Roger Taney and company would have acted as judges should act.) If an appellate court believes the law is unconstitutional, I don’t think the argument that it was constitutional in 1867 is going to (or should) carry the day.  Nor do I think that’s where the crux of the likely appellate dispute lies.

Filing a document with a Court is not bringing suit.  The parishes no more brought suit than does a family member when they file with the probate court to settle an estate.  What they filed was nothing more than a notice that events happened.

In respect to what is constitutional I have already answered above.

If I was not clear, my slavery example goes like this.  Nobody could bring legal action against a slave owner for having owned the slave. The fact that it was legal then closes the issue.  That it was later illegal makes no difference.  Review of the Commonwealth’s action in light of the Contract Clause is not proper.

Also note that barring some very unusual development, the only way the Virginia litigation gets before a federal court is on appeal to the Supreme Court.  It goes from the trial court to the Supreme Court of Virginia.  There is no right to an appeal at either step (state or federal supreme court).

I think I said that already.

If anyone is looking for an example of when the potential for reasonable discourse has evaporated, here you go:

“Also, the CANA folks brought suit under the statute in 2006.”

Now we all know that bringing suit requires the filing of a complaint - and it was the diocese that filed the complaint.  Such misrepresentation of an easily verifiable issue reveals many things!

For the curious, here is a scan of the stand still agreement between the churches and the Dio VA that expressly permitted recordation of the votes with the court.

It is beyond me to opine on it as I am not a US lawyer but as far as I can understand them Mark McCall’s Conclusions on pp 49-51 of this piece come down to the following:

First Conclusion: The highest authority in TEC is the diocese based on the wording of TEC’s constitution, principles of contract law and the law of voluntary associations.
Second Conclusion: The constitution of TEC cannot be changed by canon; any attempt to do so would be void in law from the start
Third Conclusion: the First conclusion does not affect hierachy WITHIN a diocese [this puts paid to the suggestion that Mr McCall’s piece does not help departing congregations as it determinations relationships and constitutional organisation within a diocese]
Fourth Conclusion: There is no constitutional requirement for a diocese to maintain communion with the PB or other dioceses.  There is no constitutional authority granted to the PB as a primate.
Fifth Conclusion: There is no constitutional restriction on a diocese entering into communion with a non-TEC body, alternative primatial oversight or alternative communion oversight.  The abandonment of communion canon is subject to a consent criterion which is to be granted by the diocesan bishop!  A diocese and its authorities itself are not subject to the abandonment canon.
 
Sixth: The diocese has authority to adopt or not adopt the Anglican Covenant based on these principles whatever ‘TEC’ decides.  This could cut both ways.
Seventh: There is no constitutional prohibition on dioceses revoking their commitment to be part of General Convention of which they are the ‘members’ in law.  The dioceses are free to join and leave under the law of contract and the First Amendment protects such a right in the case of religious bodies unless the dioceses consent to a restriction on their rights.
Finally it is pointed out that the above is entirely consistent with the ABC’s stated ecclesiology.  Further the constitutional design of TEC was probably the result of deliberate decisions by the founding drafters entirely consistent with church ecclesiology.

FWIW - If I have understood Mark McCall correctly, then this is presumably a very important analysis, and not particularly helpful to the current strategy of the PB and her legal advisors.

Don’t you know how to spell heretical?

Reference was made in #67 above to a brief discussion by me of retroactivity of Supreme Court interpretations of the Constitution.  (See http://www.stayinanglican.com/stayin_anglican/2008/03/did-the-us-supr.html, near the end.)  The context I was addressing was one in which without saying so directly, TEC seems to imply that it is disadvantaged by the retroactive application of the holding in Jones v. Wolf.  I don’t see that the departing parishes are arguing against this kind of retroactivity, and the point I was making is one in their favor.

This point about retroactivity relates to court decisions, not changes by amendment to the Constitution.  It wouldn’t be applicable, therefore, to the observation in the last paragraph of Judge Bellows’ August 19 letter opinion on the Contract Clause issue about the Fourteenth Amendment not being ratified until after the passage of the predecessor of Section 57-9.

Mike Watson, 72, other than with the Contracts Clause, are you suggesting then that constitutionality is assessed as of the time of a statute’s passage and not in light of current constitutional law?  How do you reconcile that with the case discussed in your web posting?

tired, 69, your username says it all.  This topic—one I did not intend to reopen here—is a tired one.  Because I refuse to give up hope that reasonable discourse is possible and resent your unfounded accusations, I’ll say again what I’ve said before:  There are two sets of cases here.  9 filed by CANA folks, 12 by the Diocese and TEC.  8 of the 9 filed by the CANA folks were filed before the 12 by the Diocese and TEC.  (Go check the dates on the ADV website, if you’d like.)  What’s the result?  Both sides are plaintiffs, and both sides are defendants.  And the CANA folks went to court first.  You don’t have to believe me—read the Judge’s April 3 post-trial opinion:  he consistently refers to the CANA folks as plaintiffs. 

Yes, I can hear you and BabyBlue now—the CANA folks’ cases aren’t REAL lawsuits; they’re just “reporting their votes.”  Right.  That’s why they did not just file “reports”; they filed “petitions” seeking the exact same thing that the Diocese and TEC sought: a declaration from the Court that they were the owners of the property.  Read the statute too: it does not require filing anything ... unless you’re seeking relief from the Court (which is what plaintiffs do).

Or is your argument really just that anyone can sue anyone else but as long as you call it something other than a “complaint”, you’re not a plaintiff?  Did you know that the initial pleadings in suits in Virginia went by other names until the last few years?

(And lest I be accused of entirely ignoring something, if you read the Standstill, it becomes clear that your argument about what it says is simply wrong.)

In any event, all of that is irrelevant.  Call it seeking to enforce the statute if you prefer.  It amounts to the same point:  whatever the CANA folks did, they did in 2006.

Scott+, 68, regarding bringing suit, see the above.

Regarding constitutionality, if you really think that the Contracts Clause is the main issue, I can’t help you—you’re totally lost.  And if you “have seen not seen any serious claim that the law itself is unconstitutional”, then you’re either just not paying any attention, or you’re dismissing as “not serious” anything you disagree with.  Again, can’t help you there.  There are serious arguments on both sides.

It’s interesting that you say “Unilateral actions by the various states transferred property from the Church of England.”  This is true.  In Virginia, it went to the Supreme Court of the United States, and the act in question was held unconstitutional.  See Terrett v. Taylor, 13 U.S. 43 (1815).  It’s sometimes hard to decipher the old cases, but it seems like more of a takings case to me than a contracts one.

The rest of what you say is simply parroting the CANA folks’ arguments (the statute “embodies the neutral principles of law approach acceptable to the SCOUSA”) about points that are very much in dispute, or statements that seem like either something has been garbled or something is being completely fabricated (“The parishes and the diocese agreed to the holding of property in this fashion.”).  On the last point, the CANA folks have argued that the terms of any agreement are irrelevant:  it is the statute that controls.  You come closer to the mark when you say that “Any and all contracts between the diocese and the parish were made within the framework of existing law.”

I could simply assert a variety of things too, but I choose to document what I say.

DavidH (#73), There’s no need for me to reconcile anything with what I wrote previously because I’m not saying anything different.  I responded here because you had referred to my prior post in an imprecise way without giving any link and I wanted to avoid any implication that the argument I made supported the TEC position.  It doesn’t, for the reasons already stated.

Mike, 74, you wrote (on the linked web post):

  * First, Supreme Court decisions are retroactive as a matter of course. Decisions whether to make a result prospective and in what manner are things that a legislative body may do in making law, not things a court does in saying what the law is. There was a period in the 1960s and 1970s when the Supreme Court experimented with various forms of prospectivity, but the Court has now reverted to a firm rule of retroactive application. See, e.g., Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993); Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 Harv. J. L. & Pub. Policy 811 (2003). If States are constitutionally entitled to apply neutral principles of law in resolving church property disputes on the day Jones was decided, they were constitutionally entitled to do so the day before and they continue to be the day after.  Even though Jones was decided during the period when some of the Court’s experimentation with prospectivity was still ongoing, there is nothing in the case that indicates that the Court even undertook the analysis that would have been required under the then-applicable precedents for a nonretroactive application (see Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971)), much less made any determination that nonretroactivity was appropriate.

This paragraph seems to me to support the argument that—other than the Contracts Clause—the relevant analysis is current constitutional law, and that constitutional decisions apply retroactively.  (No side relies solely on the text of an amendment—they rely on constitutional decisions since 1867 interpreting the constitution.)  The case I was asking about was Harper.  I have enjoyed reading the articles on your website, and what I wrote in post 73 above is an honest question.  You have not answered it, but if you choose to refuse to do so, that is your right, of course.

This is my quick answer to David H which is why it so long.  I was going to bow out of this topic but this morning I was again sleepless, so I wrote this.  After thankfully getting a little more sleep I post it anyway.  This is a reaction to that in post 73 addressed to me and not anything on this list posted thereafter.

Scott+

[73] Posted by DavidH on 09-09-2008 at 06:55 PM

Scott+, 68, regarding bringing suit, see the above.

Regarding constitutionality, if you really think that the Contracts Clause is the main issue, I can’t help you—you’re totally lost.  And if you “have seen not seen any serious claim that the law itself is unconstitutional”, then you’re either just not paying any attention, or you’re dismissing as “not serious” anything you disagree with.  Again, can’t help you there.  There are serious arguments on both sides.

I was a member of a vestry and congregation that removed the Bishop’s appoint “Vicar” and removed itself from the jurisdiction.  People loyal to the Bishop sued me.  I am well aware of the constitutional issues being discussed herein.  I read the Court’s ruling in the Virginia case about the constitutionality of the Virginia law.  I also scanned the briefs as available on the internet.  I therefore content that I am not totally lost.

I just did a quick reread of the Judges ruling that the law is constitutional.  My thinking that the only claim with any validity is the Contract Clause was formed when I first read that paper.  This is my thinking and my thinking alone.  I am not a lawyer, but I am well read on the case law concerning church property.  My reading of the pleading as summarized by the Court says that all except the Contract Clause elements are grasping at straws. 

It’s interesting that you say “Unilateral actions by the various states transferred property from the Church of England.” This is true.  In Virginia, it went to the Supreme Court of the United States, and the act in question was held unconstitutional.  See Terrett v. Taylor, 13 U.S. 43 (1815).  It’s sometimes hard to decipher the old cases, but it seems like more of a takings case to me than a contracts one.

 

I quickly read the case and it appears to me not to address the taking of property from the Crown or the Church of England.    It relates to who gets the property of the Crown and Church of England.  The question of taking from the Crown or the Church of England is not addressed.

The rest of what you say is simply parroting the CANA folks’ arguments (the statute “embodies the neutral principles of law approach acceptable to the SCOUSA”) about points that are very much in dispute, or statements that seem like either something has been garbled or something is being completely fabricated (“The parishes and the diocese agreed to the holding of property in this fashion.”).

 

I am not parroting anyone.  I am expressing my thinking and my thinking alone.  The Court seems to agree that the Virginia law is in keeping with neutral principles of law.  ECUSA made it case and the Court rejected it.  I have read the summary of the case make by ECUSA and I see no reason to disagree with the Court ruling.  So I do not see the point as very much in dispute.

I stand by my statement (“The parishes and the diocese agreed to the holding of property in this fashion.”).  There have been many years to change the method of holding the property they did not.  The Court has made my position.

The Court said:

In fact, ECUSA/Diocese could have, at any time within the past 140 years since 57-9 (or the predecessor thereto) was originally passed, re-titled their properties in the name of a Bishop or other ecclesiastical officer. If they had done so, they could have permanently avoided any potential application of 57-9(A).
.

I would say 140 years of inactions is the same as agreement.  I would suggest that 140 of inaction was because 140 years ago the law was not seen as changing anything.  It has only been within the last 30 years or so that ECUSA has laid claim to properties owned by parishes.

On the last point, the CANA folks have argued that the terms of any agreement are irrelevant:  it is the statute that controls.  You come closer to the mark when you say that “Any and all contracts between the diocese and the parish were made within the framework of existing law.”

The Court can enforce no agreement which is inconsistent with the law of the Commonwealth.  So to a great degree it is the statute that controls.  There can be agreements within the framework of the statute that would change the applicability of the statute but that does not change the applicability of the statute. 

I do not understand that you which you refer by saying:  On the last point, the CANA folks have argued that the terms of any agreement are irrelevant: So I cannot respond to that point.  I know of no claim in the Virginia case that deny explicate agreements. 

I could simply assert a variety of things too, but I choose to document what I say.

 

Other than to mention on SCOUS case which I do not see as applicable to the topic at hand, how did you document what you said?

Ref 76 above it has more than a few typos. 

is:

There can be agreements within the framework of the statute that would change the applicability of the statute but that does not change the applicability of the statute.

Should be:

There can be agreements within the framework of the statute that would change the specific applicability of the statute but that does not make the statute governing law.

is:

Other than to mention on SCOUS case

should be:

Other than to mention one SCOUS case

Other typos are left to the reader to assume my intent.

Should be:

There can be agreements within the framework of the statute that would change the specific applicability of the statute but that does not make the statute not governing law.

DavidH (re #75): You were the one who referred above to a prior post of mine.  One would think I might chime in to refer to the specifics of what I said and the context without being subject to the charge of refusing to answer your subsequent questions.  Particularly is this the case since one of your questions is whether I’m suggesting something which clearly I’m not and the other is how do I reconcile something where on the face of it no reconciliation is needed.  Moreover, I think I have answered your questions substantively, and I’m not sure what your point is unless it’s that I didn’t defer to your satisfaction to the way you put the issue.

To avoid this being too much of a repetition of what I’ve in substance already said, I’ll add that I think the implication that the retroactivity rule that I was discussing needs an exception for the Contract Clause is incorrect.  The retrospective application of the Contract Clause involves a quite different concept.

Mike, 79, I’m sensing hostility from you, and I don’t know why.  In any event, it is clear either that we don’t understand each other or that you do not wish to discuss the matter further.  So I’ll move on.

babyblue, please have a look at #73 above.
I love all the work you’ve put into covering the lawsuits in Virginia and I wish CANA well there - indeed, things seem to be doing very well.
I think that DavidH has an interesting point in #73 regarding the petitions filed by CANA - I had not been aware of this point.  It’s very likely that you didn’t know the full legal nature of these petitions.  You are sort of our expert here on the ADV cases, and if what DavidH is saying is true, and CANA did go beyond the standstill agreement in filing petitions, I and others really need to know.  I have been telling others that what ADV did was simply in accord with the standstill agreement, and I’d rather not that we get into the situation it seems some TEC bishops have fallen into - where we are less than vigilant in making sure that what we proclaim is true.
Curmudgeon, it would also be interesting to hear your take on this.

In response to some of[73] Posted by DavidH :

§ 57-9. How property rights determined on division of church or society.

A. . . .  determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court’s civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.           

The vote having been taken the law required it to be filed with the Court.  It was required by law. To view this as a provocation is to my mind ludicrous. 
In many Courts I have seen that a filing party takes on the title plaintiff, even if there is no defendant.  You may be correct if we list counting the number of filing where party X as plaintiff, but that is a diversion to the main point.  It was the Diocese that filed against the member of the parishes and others. 

I assume that ECUSA and the Diocese will question the taking of the vote, but does anyone really think that the vote was unfair or fraudulent?  As I read things that is the only valid question of fact which are part of the petitions filed by the ADV parishes.  In respect to what petitions were filed by the ADV parties, their only burden of proof was that votes were taken.  In all other respects the burden of proof is on ECUSA / Diocese and as such they are the plaintiffs. 

But this goes off topic from the post and I end with this.

I will repeat it again - ONLY TEC and the Diocese of Virginia filed lawsuits.  The “petitions” that DavidH mentions are also mentioned in the Standstill Agreement negotiated by Bishop Lee and the CANA parishes after we voted.  In the Standstill Agreement Bishop Lee and the Diocese agreed that the filing of our petitions was NOT - REPEAT - was NOT a hostile act.  This was an action following Bishop Lee’s Protocol for Departing Congregations (also hidden on the Diocese’s website and very very hard to find) where we filed our votes with the Court.  We never “transferred” the property because we believed we have title to it (and the Diocese now has surrendered that point) and we believed we were going into negotiations with Bishop Lee.  Everything changed when 815 intervened and Bishop Lee called off his own negotiating committee and refused to renew the Standstill and sued us.  We have never sued them - the Diocese and 815 ignored what was in the Standstill - that the petition filings were not hostile and took the complete opposite view, hence they technically became “plaintiffs.”  The court decided to set aside the lawsuits while the Division Statute was dealt with and that has taken precedence over the lawsuits because if the statute was applicable (ruled it is) and if the statute is constitutional (ruled that it is) and the votes properly taken (the subject of the October trial - which will take an entire month, by the way) - then the lawsuits are moot.

The Diocese and TEC have REFUSED to put the Standstill Agreement up on the websites.  And now we know why.

The Standstill Agreement

bb

“Lawsuit. A vernacular term for a suit, action, or cause instituted or depending between two private persons in the court of law.”

BLACK’S LAW DICTIONARY

... and here is the Virginia Code citation:

§ 57-9. How property rights determined on division of church or society.

A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court’s civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.

B. If a division has heretofore occurred or shall hereafter occur in a congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society, a majority of the members of such congregation, entitled to vote by its constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom, may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court, and if approved by it, shall be so entered as aforesaid, and shall be final as to such right of property so held.

(Code 1919, § 40; 1972, c. 825; 2005, cc. 681, 772.)

So… no defendant contemplated in the Va Code.

“Lawsuit. An ecclesiastical term for pastoral reconciliation inflicted by the Diocese of Virginia on Anglican Christians.”

PETER JAMES LEE’S EPISCOPALIAN LAW DICTIONARY

To get us back to Mark’s article, can General Convention force a diocese out of the Episcopal Church?

#86 I don’t know if they can vote one out.  But they are forcing at least 3 out and for every one else, they might not be able to force the diocese to leave, but they can run off the people.

WG:  I think that General Convention could vote a diocese out of union with the General Convention.  What McCall’s basic point is that dioceses are existing jurisdictions with unlimited powers under TEC’s constitution and General Convention is an organ with unlimited powers under TEC’s constitution.  TEC’s General Convention can only admit dioceses into union with it (or presumably kick them out) but they cannot purport to control decisions which diocese make by their own right.

A brief comment clarifying my off-hand and quick parenthetical re the Standstill in #73, since it has drawn later comments.  I did not say and do not mean that filing a petition violates the Standstill Agreement.  The parties agreed that filing a petition did not.  What I have to say about the Standstill is as follows:

1) No one violated it.  Then it expired.  After that point, it ceased to be relevant (although bb feels the need to resurrect it every now and again for some incomprehensible reason).

2) There is no need for the Standstill to carve out an exception in the “civil legal action” paragraph for the 57-9 petitions if they would not otherwise constitute civil legal action.

The point about the CANA folks also filing petitions was meant to respond to the statementt that bb and others have made before:  that all they did was report their votes.  They didn’t just file reports.  They filed petitions, seeking a court’s declaration that they owned the property.

In any event, this is OT, and, as I said, not where I originally meant to go in commenting.

tired, 84, you make an interesting point.  But I’m curious why you think that helps.  Doesn’t that suggest that this is not the kind of situation to which 57-9 was meant to apply?

No, that is false.  We did not take that extra step, DavidH.  We knew we were going into negotiations and so we did not take that step of asking the court to declare the ownership of the property.  We assumed it.  We knew we held the title and we assumed we held the title in trust for the congregation.  So we filed our votes - which are called petitions.  I was there.  I know we did not take the extra step - we could have, but we did not as the Standstill Agreement recognizes. 

If we had done what you say (which again, we thought was unnecessary and the rulings from the Court have shown this to be correct) we would never have had a Standstill, we would never have been invited by Bishop Lee to the negotiating table.  We entered into the process in good faith and that was where it was when suddenly - and believe me, it was a shock - the whole thing was tossed out the window the lawsuits were filed by both TEC and the Diocese. 

The plan was for the Standstill to be renewed for at least three more months - at the least - as we went through negotiations over next steps.  This was to be an example of how to walk through these intense and difficult times with Christian charity and hope and yes, even love. 

One of the most difficult aspects of this litigation has been how TEC has approached the law - and of course, in thinking about this thread - how they approach the canons is so similar as to how we’ve seen TEC’s counsel approach the law in court. 

There has been the same kind of disregard for the meaning of the law, in the same manner of how they approach theology and scripture and yes, even the canons. 

Case in point, at one point in the hearings in May, TEC took the statute and divided the statute on to different poster boards.  Then they would show just the part of the law they wanted to reinterpret on one poster board and they put the part of the law they didn’t like on other a second poster board.  Then they put the second poster board out of site of the judge as they made their presentation.

The problem was - it was out of context - it was missing the Second Poster Board.  They were attempting to revise the meaning of the law but taking out the second part as though it didn’t matter. 

The judge, keen as ever, was well aware of what they were doing and requested that they put both poster boards up so he could see them at the same time, and thereby diluted their case.  He wanted to see the law in context and they did not.  When they would make points, he would question them according to what was on the Second Poster Board.

That is what revisionism is and what revisionism does, in court, in the canons, and in scripture.  For those of us who care about the text, about the meaning of the text, who seek the text to inform the text to discover it’s truth and beauty and meaning - this is irrelevant to those who hold a standard that they are the ultimate decider of truth on their own.  It’s not a love for the text, or the law - or even the canon.  That is irrelevant.  What matters is how the words are redefined as metaphors and in their redefinitions, which parts of the text, the law, and the canons should be tossed aside like second poster board that was tossed aside in court last May.

bb

Have been looking every day for an answer to my question about the McCall opinion on Covenant, where I first read it, but the conversation there quickly stopped.  Question:  if the diocese trumps the national church in the hierarchical relationship (as McCall seems to be saying, although I may have misunderstood), where does that leave a parish church—in particular its constitution—in relationship to a diocese which votes to leave the national church?  Does McCall think a diocesan vote to leave the national church would render a pre-existing parish’s constitution null and void where the parish says it belongs to a diocese in the US Episcopal church? (Also: McCall is simply identified as “a lawyer”—would it be inappropriate to ask what type of law he practices, and where?)

celindascott, some of your questions about Mr. McCall are noted at the beginning of the paper.  No specific references, but general ones about his professional background are provided.

If the diocese is the main legal authority in TEC, what isn’t clear is the best way for dioceses to relate to one another in a wider, including, international, communion.  Unless there is some binding authority beyond the diocese, one that makes sense and is voluntary in initial association, the dioceses function as congregational and often national units which at best could be draw together in confederation, a very problematical alliance, and one that doesn’t seem to work now. 

Theoretically speaking, for the future, what would be the best way for an Anglican Covenant to formally bind dioceses to one another in wider communion?  What is the ecclesiological vision needed before laws, either civil or canonical, can be formed?

celindascott (#91), Mr. McCall is a long-time (since March 2006) commenter here at StandFirm. In addition to what you can learn from his paper, you can use the Member Search function in your “Account” settings here to learn from his 976 posts at this site about the quality of his legal thinking—-let me assure you that it is very high, indeed.

On your question about the effect of the decision of a diocese to withdraw from TEC on one of its parishes: the McCall paper demonstrates that the hierarchical relationship which the courts have looked for in the reported cases is between the diocese and its parishes (or between the bishop of a diocese and his or her clergy), and not between the national church and the dioceses.  So it is not that a diocese is “the main legal authority in TEC”, but rather that there is no basis for concluding that General Convention, or TEC itself, is at the top of whatever hierarchy may be said to exist in the Church, after examining TEC’s governing document, the Constitution.  The Constitution simply does not spell out any kind of hierarchy as such (pace DavidH and his views about what the Constitution does require of dioceses—-it ain’t much, and it is more for the sake of ecclesiastical uniformity rather than to create an ecclesiastical hierarchy).

Given this conclusion drawn by Mr. McCall, for which (IMHO) a rather solid foundation exists based on his analysis, your question would, it seems to me, be best answered as follows: I know of no withdrawing diocese that wishes to force a parish to do anything that is against its will. Each of the bishops of San Joaquin, Pittsburgh and Ft. Worth has announced that any parish who wishes to remain with TEC may do so. A diocese, even though hierarchically above a parish, may not unilaterally cause an amendment to be made in the parish’s own governing instrument; if push came to shove in that regard (and I stress that no withdrawing bishop has forced this issue), what would most likely happen is what has happened in cases where the diocese has sought to prevent a parish from withdrawing: the bishop would discharge the resisting vestry for “failure to perform their duty of loyalty to the diocese for which its property is held in trust” (according to the Dennis Canon), and would appoint a more compliant vestry that would do the bishop’s bidding. But it would still be the individual parish acting through its vestry, and not the diocese on its behalf, or in its place.

Thanks, Seen-Too-Much—I see in the note on page 1 of the paper that he is from NY and is a former partner of an international law firm with offices based there. Interesting point about the necessity of an ecclesiological vision before laws can be formed, which, I imagine, would include where a parish fits in.  On the other hand, the civil common law tradition we inherit from Great Britain is—I think—that specific laws develops through experience and precedence more than through a far-reaching initial vision. However, in the US the preamble to the Constitution does offer a far-reaching initial vision. In canon law, I like the preamble to our national Episcopal constitution, which states that we belong to a world-wide body. Although some leading members of TEC have said that preamble was cobbled together and the writers didn’t mean it to say what it does, nevertheless the language is there:  and I think it’s our tradition in the US to honor the actual language of a constitution rather than to try to go back and prove the writers did not mean it.—Thinking about the Bill of Rights, however, it took the 14th amendment to start a move to get those rights applied to the states—(perhaps an analogy between states and dioceses could be made here)—initially, they had legal force only as applied to the national government. Some still argue, unfortunately, that “transporting” that protection of individuals from the national gov’t to include protection from state gov’ts should never have happened.

Clarification: I didn’t mean by referencing the Bill of Rights in my last post that we should have a “rights-based” attitude toward the controversial issues (I don’t believe that).  What I meant to say was that particular part of the Constitution originally only applied to one level of gov’t (national)and it took later legislation to apply it to another level (state).

The House of Bishops convenes this coming Wednesday.  Lent & Beyond has posted the first of a series of prayers here.

The answer is most assuredly YES and at its head are the powers and principalities of this world.  Most definitley, the Lord Jesus is not the head of this trash heap.

bb, 90, you can blink at reality all you want.  Truro and eight other CANA congregations each filed a petition seeking “approval of its congregational determination and entry of that determination in the court’s civil order book.”  See the copy on the ADV website.  According to 57-9, the court’s approval is “conclusive as to the title to and control of any property held in trust for such congregation.”  Courts act through their orders, and cases are not resolved except through final orders.  Therefore, it is inescapable that you sought an order giving you conclusive title to and control of the property you claim.

Your account of the May constitutionality hearing is implausible.  Judging by the transcript on the ADV website, nothing like what you described happened.  I will be the first to admit that transcripts are not perfect.  But given the choice between concluding that the Court reporter missed an exchange like you describe and concluding that your biases are again coloring your descriptions of events, I’ll take the latter, especially in light of the entirely different exchanges that the transcript does show.  Not to mention the fact that the posters at the hearing were not a statute, as you say, but excerpts from a case.

celindascott, it is interesting to think about common law traditions which are often in tension with one another, and the preamble to the US Constitution arising from them, as setting forth some vision its authors wished to grasped through articulation, and the interactions of those on more explicit laws and (legal) practices that followed.

In jeopardy presently, within TEC and throughout the Anglican Communion, is the very meaning or grasp of communion, of just about any kind.  On page 19 of McCall’s paper, he notes, “it is clear that TEC’s understanding of communion is incoherent at best and more accurately self-contradictory.”  He goes on to note further on the same page the mind numbing, most acutely so theologically, senselessness of TEC’s actions, which we witness again in the PB’s clear intent to depose Bishop Duncan of Pittsburgh, in which, “...joining a church ‘in communion’ with TEC is regarded as abandonment of the ‘the communion of this Church.’” Hence McCall concludes, “It is manifest from these provisions that TEC canonically has no clear understanding of what communion is;” and later, “Whatever TEC’s canons specify regarding the relationships among the various bodies comprising it, those relationships are legal and administrative, not sacramental.”

So I don’t understand why the Anglican Covenant could not be explicitly sacramental, could not, like the preamble to the US Constitution, arising from the conflicting common law traditions or practices among Anglican Provinces, provide some vision of communion that all signatories to the Covenant embrace and strive to embody.  It appears to be the case that conflicts within the common law practices of heretofore Anglican churches is so pronounced that some must form a minority group while others form a majority group, in order for the Covenant to be articulatable (?) in this fashion.  But a minority unwilling to be anything less than the dominate party under the illusion of being the majority, presents further jeopardy to the entire process.  This might have been the state of affairs in early US history, had the former colonies not conceded their individual power to a central government; yet it was the yielding of clearly fractured identity with no future in isolation, to a powerfully unifying if emergent whole that returned a refreshed and reinvigorated identity to the early states that saved and transformed them from colonies to US States.  If such a transformation occurred in a civil government, think how more remarkable the sacramental transformation of member states of a newly constituted Anglican Communion might be, blessed beyond what had up until then been possible, by the head of his beloved church?

“tired, 84, you make an interesting point.  But I’m curious why you think that helps.  Doesn’t that suggest that this is not the kind of situation to which 57-9 was meant to apply?

It helps because the statue outlines an ex parte procedure, whereas the normative definition of a lawsuit is inter partes, or between two parties.  Thus, it is not accurate to say that the churches filed a lawsuit.

As for the second point, the statute is directed to divisions between branches of a church or religious society (as opposed to a congregation), which would have been understood to include a greater body than just the church.  There is no suggestion that the statute is intended to solve disputes between factions of an independent congregation.

I have to say I have not yet seen an effective challenge to Mr McCall’s excellent piece of research.

Please let us discuss the paper which is the subject of the post.  It looks like the Virginia case is all but over.  ECUSA and the Diocese are coming up between short and empty handed.  What happens in other states may not be influenced by the Virginia out come because of the unique nature of the specific law in the Commonwealth.    However, this is not what the paper is about.  It deals with a diocese’s ability to leave ECUSA.