Making Proper Plans to Remain Episcopal

As the dates for the fall diocesan conventions approach, we are seeing increasing signs that in those dioceses (Pittsburgh, Ft. Worth and Quincy) where proposals to leave The Episcopal Church are up for a vote, the groups that want to remain part of that Church are getting organized. On the whole, this is entirely as it should be. I have not seen any remarks or comments, by any of those planning to take their leave, that wish ill or intend difficulties for those planning to stay. (I have seen the occasional ill-tempered comment running in the other direction, such as "By all means, leave, but don't take the property and bank accounts with you, because that would be theft.")

It appears that the group in Ft. Worth has retained their own legal counsel, and that both that group and the group in Pittsburgh have been in consultation with TEC headquarters at 815 Second Avenue about their plans. Again, this is all well and good. As one commentator from Pittsburgh noted:

While in the end some San Joaquin Standing Committee members and others in diocesan leadership did not become a part of the realigned diocese, there was not any significant planning for a canonical transition. Thus, when “realignment” happened, those in the diocese wishing to remain within the Episcopal Church and the leadership of the Episcopal Church itself were put into a situation where some improvisation seemed necessary to call a reorganizational convention and to begin to create anew canonical structures and institutions within the diocese.

At the same time, I am a little disturbed by what I am able to read about the specific plans of the groups in Ft. Worth and Pittsburgh. In the minutes of the meeting of the "Ft. Worth Steering Committee" held on September 6, for example, I found this:

"The Church in Exile" will call a convention in April. Until that time, there may not be a bishop in charge of the "exiles." They feel sure that Bishop Iker will make acceptable resources available in the interim. At the April Convention, TEC will establish the diocese and install a bishop. The re-constituted diocese would elect a permanent bishop at a later convention

Deposition of Bp Iker will occur as soon as Presiding Bishop is advised of the vote result. Bp will have 60 days to recant. Inhibition will be effective immediately, meaning Iker may only act administratively. Bank accounts will be frozen? That issue was not completely discussed.

House of Bishops meets twice annually, with next meeting this month. Deposition cannot be approved until that time, they think. There is a possibility that Presiding Bishop may find some reason to depose prior to the Diocesan Convention.

In the first place, note the emphasis on the useless gesture of deposing the departing bishop---no doubt, for "abandonment of communion." (Also, the logic of first deposing Bishop Iker, and then looking to him to "make acceptable resources available in the interim", escapes me.) Not only would this be an abuse of Canon IV.9, as I have explained at length elsewhere, but it would be an utterly futile gesture under these circumstances, in which the diocese itself is leaving the Church. Why so? For several reasons: 1) the diocese and its bishop, from the moment of the vote, are no longer subject to the "doctrine, discipline, and worship" of The Episcopal Church, and so the latter has no jurisdiction in which to pronounce a sentence of deposition; 2) the bishop remains a bishop in another jurisdiction, and so will not be deposed by any act of The Episcopal Church; but most important of all, 3) the diocese itself is no longer part of The Episcopal Church, and so not only is its diocesan chair not empty, but there is no longer any diocesan entity subject to the jurisdiction of the Church whose see it can pronounce to be vacant, and proceed to fill!

If you consider this to be an extraordinary statement, then please read on.

The "Church in Exile" is apparently how those wishing to remain Episcopal in Ft. Worth are referring to themselves. They are apparently planning to call a "convention" of their number in April 2009. That is all well and good, as I say, but there are a number of issues which do not yet seem to have been brought to their attention.

They may certainly meet in April 2009, and assuming proper notice was given and a quorum of clergy and laity are present as defined in their operating instrument, they may adopt a Constitution and canons by which they will be bound to operate in the future. They may even decide to call themselves a "diocese", such as "The Episcopal Diocese of Ft. Worth." But---and this is a very big, as well as a very necessary, qualification---in April 2009 they will not yet be, and cannot yet be, a legitimate diocese of The Episcopal Church.

Why? Because the Diocese of Ft. Worth, like virtually every other diocese that has heretofore been a constituent part of The Episcopal Church, is an unincorporated association. In Texas, as elsewhere, this means that it is an organization of three or more people united for a common purpose, which adopts rules of operation through a governing instrument. In this case, that organization will have amended its Constitution in accordance with the provisions of that document, and those amendments will make it impossible for the organization governed by that Constitution to continue as a branch of The Episcopal Church. (Why? Because the amendments change the language of the Constitution acceding to the Constitution and Canons of The Episcopal Church---and the latter Church's Constitution requires that such language be a part of every diocesan constitution [see Art. V, quoted below].)

Apparently this concept is difficult for some non-lawyers to grasp, so I will repeat it: a diocese (unincorporated association) of The Episcopal Church which amends its Constitution so as to change or delete the language which accedes to the Constitution and Canons of The Episcopal Church can no longer serve as a diocese of The Episcopal Church.

For there to be such a diocese, it has to organize itself lawfully under (in this instance) Texas law, and adopt a Constitution which has the required language in it. And since the former diocese (unincorporated association) has a Constitution which does not qualify, it will have to be a new unincorporated association which organizes for that purpose. But the coming together of that new organization, and its adoption of an appropriate Constitution with the required language, does not ipso facto make that new entity a diocese of The Episcopal Church. Why, again? Because the Constitution of The Episcopal Church provides, in Art. V, section 1:

A new Diocese may be formed, with the consent of the General Convention and under such conditions as the General Convention shall prescribe by General Canon or Canons, (1) by the division of an existing Diocese; (2) by the junction of two or more Dioceses or of parts of two or more Dioceses; or (3) by the erection into a Diocese of an unorganized area evangelized as provided in Article VI. The proceedings shall originate in a Convocation of the Clergy and Laity of the unorganized area called by the Bishop for that purpose; or, with the approval of the Bishop, in the Convention of the Diocese to be divided; or (when it is proposed to form a new Diocese by the junction of two or more existing Dioceses or of parts of two or more Dioceses) by mutual agreement of the Conventions of the Dioceses concerned, with the approval of the Bishop of each Diocese. In case the Episcopate of a Diocese be vacant, no proceedings toward its division shall be taken until the vacancy is filled. After consent of the General Convention, when a certified copy of the duly adopted Constitution of the new Diocese, including an unqualified accession to the Constitution and Canons of this Church, shall have been filed with the Secretary of the General Convention and approved by the Executive Council of this Church, such new Diocese shall thereupon be in union with the General Convention.

So one of the things that has to happen is that the new Diocese has to receive the consent of General Convention---not the Executive Council, and not the Presiding Bishop, but the body which comes together only once every three years, and which meets next in Anaheim in June 2009. Whatever else the "Church in Exile" does, therefore, it will not be able to be a lawful diocese of The Episcopal Church in April 2009. Just as The Episcopal Church will no longer have, after November 2008, a Bishop of Ft. Worth to depose, or a Diocese of Ft. Worth whose see it can declare vacant, so the "Church in Exile" will not itself be able to elect a new diocesan bishop until after General Convention has admitted it as a diocese.

What can it do, then? Article V spells out the options: a new Diocese can be formed either by dividing up an existing Diocese, by joining together two or more Dioceses, or parts of Dioceses, or by the formation of a Diocese from "an unorganized area evangelized as provided in Article VI." Once the old diocese has left, there is nothing in the area of Ft. Worth left to be divided, or to be joined with something else, so let us take a look at the provisions of Article VI:

Sec. 1. The House of Bishops may establish a Mission in any area not included within the boundaries of any Diocese of this Church or of any Church in communion with this Church, and elect or appoint a Bishop therefor.

". . . not included within the boundaries of any Diocese of this Church . . ."---well, the remnant area of Ft. Worth would certainly satisfy that requirement. But what about the next requirement: "or of any Church in communion with this Church"? Since TEC has thus far not declared itself out of communion with any of the churches in the Anglican Communion, how could the remnant area of Ft. Worth, which by definition will be within the area of the old diocese, and which will as such be part of the Province of the Southern Cone, be organized as a Missionary area without violating this language of Article VI? So in order to organize the new diocese of Ft. Worth, TEC will first have to declare itself "out of communion" with the Southern Cone.

Alternatively, and perhaps preferably, the remnant area of Ft. Worth could simply be absorbed by the Diocese of Dallas, and be subject to its Bishop and canons until such time as it would be able to split off (as it did in 1983) and form a Diocese of its own, pursuant to the provisions of Article V quoted earlier.

But I hope that those on the "Steering Committee" are being properly advised that they cannot automatically be received into The Episcopal Church as a Diocese starting in April 2009. The same conclusion applies to the "remain Episcopal" group in Pittsbugh (and in Quincy, if there is one), which at least is saying the right words:

Despite rumors and anxieties that have moved through the diocese in the past few months, the Presiding Bishop and other leadership of the Episcopal Church have clearly indicated that they do not wish to improvise extra-canonical solutions when canonical solutions are possible, as they most certainly are here. This is an important point, as our clergy, vestries, and congregations seek to discern the best way forward. Ecclesiastical “martial law” is not going to be declared in Pittsburgh, armies of occupation will not descend upon us, and decisions about episcopal leadership and other matters of governance will be made by the clergy and laity of the remaining diocese ourselves, in an orderly, canonical process.

An "orderly, canonical process" means following the provisions of Articles V and VI as sketched out above. Since the apparent desire is not to repeat the canonical fiasco that happened in San Joaquin, I trust that the "remain Episcopal" groups in Ft. Worth and Pittsburgh will not try to take the route that was taken there, and to make the claim in Texas or Pennsylvania courts that the amendments to the diocesan Constitutions were unauthorized, unlawful, and in excess of the powers of those meeting in the respective conventions. Such a claim attempts to preserve the identity of the unincorporated association, by asserting that those who changed its constitution acted beyond their powers (ultra vires) in doing so, and contends that the changes can be ignored as though they had never happened.

That kind of a claim can be won only in court, if at all. It is in the first place highly questionable under the people's First Amendment right freely to associate in such entities, with such constitutions or governing principles, as they shall freely adopt. (No language in the Constitution of the Diocese of Ft. Worth placed any kind of restriction on the power to amend it in successive conventions, for example.) And in the second place, the diocesan chancellor in this instance has given an opinion that no fiduciary relationship exists under Texas law between those voting at convention and The Episcopal Church, so that their vote to amend will not betray any duty owed to that Church under local law. Finally, as Mark McCall's recent paper definitively shows, there is no language in TEC's Constitution or Canons that prohibits a diocese from amending its constitution to eliminate the accession clause. (An "unqualified accession" remains, as in international treaty law, a consent without reservations which is valid only for so long as the body which gave its consent does not subsequently withdraw it. An act which is voluntary in the first place can be undone just as voluntarily, without the necessity of saying: "I reserve the right to act voluntarily in a different fashion later"---such a "right" is the essence of what it means for an act to be "voluntary.")

Consequently, if the groups in Pittsbugh, Ft. Worth and Quincy want to stay on the canonically proper path, and avoid protracted litigation, they would be well advised to work out plans for absorption into neighboring dioceses until such time as they are once again prepared to be self-sustaining on their own, and can arrange to petition General Convention to that effect. Any other route to preservation entails either protracted and costly litigation, with an uncertain outcome, or more canonical innovation and abuse, which does not allow the Church to hold up its head as a Christian church.