Wednesday, July 9, 2008

Attempt at a Pre-Emptive Strike in Pittsburgh

Normally I do not do the kind of posts entitled "Breaking: This Just In," or similar attempts at being first to comment on the news. However, this post from Lionel Deimel in Pittsburgh just came to my attention, and he gives a link to the Supplemental Petition just filed by Calvary Church of Pittsburgh. The Petition, following up on a Stipulation entered into between Calvary Church and the Diocese of Pittsburgh in 2005, seeks the appointment of a court "monitor" to oversee the expenditure of funds and any transfer of assets by Bishop Robert Duncan preparatory to, or as a result of, the Diocesan Convention on October 4, 2008---at which there will be proposed, for second reading and final passage, amendments to the Constitution of that Diocese to withdraw its accession to the Constitution and Canons of The Episcopal Church.

Without the prior Stipulation, the current Petition would on first impression appear to ask the court impermissibly to interfere in the internal affairs and operation of a religious body in violation of the First Amendment. Even with the Stipulation, however, the Court may still be drawn into "entanglements" with religious doctrines and proceedings if it attempts to determine, for example, whether or not the vote to be taken by the Convention on October 4 would result in a violation of its terms. For example, do the Constitution and Canons of The Episcopal Church positively prevent any Diocese from so amending its own Constitution to remove the accession clause? (I have argued that they do not here, and that any attempt so to read them would itself violate the freedom of association clause under the First Amendment.)

The Petition asks that the Monitor be appointed to "assure . . . that such [diocesan] Property is not used for purposes of separation from the Episcopal Church in the United States of America." Can a court of the United States tell a group of people that they cannot decide by majority vote how to spend their funds? And if the group of people happens to be organized into a religious diocese, can a court appoint someone to step into their midst and tell them that they can spend their funds only in support of The Episcopal Church, and no other religious body? (Even worse: the Petitioners request that the court Monitor see to it that the Diocese of Pittsburgh cannot use diocesan funds to defend against the Petition! Now that is real legal muscle, if you can obtain it---sue your opponent and then have the court prohibit him from spending any of his money on his defense.) To me---at first blush, anyway---such orders as the Petitioners are asking for transgress every principle enshrined in the First Amendment. And if the prior Stipulation leads the court into such a forbidden thicket, then there is a problem with the prior Stipulation, as well.

We may nonetheless be grateful that a few within TEC have seen fit to force the issue at this point. The suspense of waiting until the September Showdown in Salt Lake City, or until the Convention in October, was beginning to get on the nerves. Now there are documents to pore over, arguments to weigh, and decisions to be made. It's just too bad that Christians are more and more resorting to the secular courts for such actions to be taken. For in asking the courts to limit the liberty of those who want to change their voluntary associations, and by seeing nothing improper in requesting such interference, the Pittsburgh Petitioners have not only demonstrated the utter inability of TEC's own polity to address such matters, but have diminished our own personal freedoms as well.


  1. Any chance of a link to the actual court order and stipulation?

  2. The link has been posted.

    Notably, the Stipulation applies to property "held or administered . . . for the beneficial use of the parishes and institutions of the Diocese," and says that such funds shall continue to be so held and so used regardless of how many individual parishes leave the diocese. Since the individual parishes were not represented in the litigation when the original stipulation was entered into, it is difficult for me to see how or why any of them should regard the stipulation as binding on them. It creates a sort of "last man standing" rule, where the money all goes for the benefit of the last parish to remain if the others all leave. That seems questionable, to say the least. I am going to research this subject further and will devote another post to it.

  3. If I read the stipulation correctly it relates to parishes leaving the diocese. There is no mention of the diocese leaving ECUSA. Therefore, anything about the diocese leaving ECUSA is de nova and the stipulation does nothing to overcome the courts want to stay out.

  4. Traditionalanglican, you are right as far as that point goes. What the Petitioners are alleging is that the Stipulation provides that the property was to be held by the Diocese of Pittsburgh of The Episcopal Church, so that it would technically be violated if the Diocese no longer was affiliated with TEC. The comments by the Judge in the transcripts attached as Exhibits to the Petition might bear out this interpretation, but they are only excerpts from arguments made several years ago, and so could be out of context. I still question whether the language "for the beneficial use of the . . . institutions of the Diocese" may be read so narrowly as the Petitioners want, i. e., to mean that the institutions of the Diocese---including its Bishop---may not expend diocesan funds on their own behalf, such as for defense against this one-sided attack.