A Primer on the Crisis (The Short Version)

I have now devoted seven rather lengthy posts to the history and misuse, both past and current, of the "Abandonment of Communion by a Bishop" Canon (Canon IV.9). In response to some requests for a boiled-down, just-the-meat-of-it version, I am putting up this post. A printable version of it may be found here.

The Current Problem

The current problem can be summed up in the names of just two people: Episcopal Church Presiding Bishop Katharine Jefferts Schori and her Chancellor, David Booth Beers. In recent proceedings under Canon IV.9 brought against the Rt. Rev. John-David Schofield and the Rt. Rev. William J. Cox (who had been, prior to his so-called "deposition," the most elderly Bishop of the Church), they ran roughshod over the plain requirements of the Canon. When they were called on what they had done, they gave audacious responses that denied that anything had been done wrong. Not only that, but Presiding Bishop Jefferts Schori has just as audaciously announced her intention of going forward with a vote, at the next House of Bishops meeting in September, to depose the Rt. Reverend Robert Duncan from his see in the Diocese of Pittsburgh---on the same illegal basis as the one on which she proclaimed the "deposition" of Bishop Cox.

The Violations of the Canon

First, Canon IV.9 provides (see the end of this post for the text) that when charges of abandonment have been certified by the Title IV Review Committee, notice of the charges shall be given "forthwith" to the Bishop so charged. The charges against Bishop Cox were certified to Presiding Bishop Jefferts Schori on May 29, 2007. She did not notify Bishop Cox of them until January 9, 2008---more than seven months later.

Second, before giving notice of the charges, the Presiding Bishop was required to seek the consent of the three most senior active Bishops in the House to inhibit Bishop Cox from performing any episcopal functions pending the vote on his deposition. She did not do so, and she did not obtain any consent to his inhibition, but obtained it in regard to Bishop Schofield.

Third, the Canon provides the "inhibited Bishop" with sixty days to respond to the charges, and says nothing about any further proceedings against a Bishop who was not inhibited. Notwithstanding that language, when Presiding Bishop Jefferts Schori notified Bishop Cox of the charges, she told him he had sixty days to respond before he would be deposed.

Fourth, when the sixty days had run, the Presiding Bishop brought a resolution to consent to Bishop Cox's deposition before the House of Bishops at its meeting in Camp Allen on March 12. Again, the language of the Canon provides that only a Bishop who has been inhibited shall be "liable to deposition," but in clear violation of those words, she took up the resolution with the House anyway.

Fifth, the Canon requires that the House of Bishops give its consent to deposition "by a majority of the whole number of Bishops entitled to vote." Article I, Section 2 of the Constitution spells out which Bishops are "entitled to vote" in the House---counting those both active and retired ("resigned" is the technical term), there were 294 such Bishops entitled to vote as of March 12. Thus a majority of that number would be 148. But only 131 Bishops registered at the meeting when it began on March 9, and that number was down to 116 as of the last day, the morning of March 12. By the time the resolutions to depose came up for discussion, the roll call registered just the bare minimum of active Bishops needed for a quorum: 68. The vote on the resolution was by voice only; no record of the actual votes exists. But it is obvious that the requirement for a minimum of 148 votes to approve the deposition could not possibly have been satisfied.

Notwithstanding all these defects in the procedure, Presiding Bishop Jefferts Schori signed certificates of deposition with respect to both Bishops shortly thereafter. When she was challenged on the procedures that had been violated, she defended her actions by saying that she had been advised throughout by her Chancellor, David Booth Beers, and he himself issued a statement that the depositions had been conducted properly.

Shortly after she began the proceedings against Bishops Cox and Schofield, the Presiding Bishop also notified Bishop Duncan that charges of "abandonment" had been certified against him by the Review Committee. As in the case of Bishop Cox, she was not able to get the consent of the three senior active bishops to his inhibition. Nevertheless, she gave him 60 days in which to respond to the charges. This 60-day period expired after the meeting of the House of Bishops ended on March 12, so she could not bring a resolution to depose him at the meeting. At its conclusion, she announced she would poll the members of the House about holding a special meeting in May to consider his deposition. When the results of that poll were apparently negative, she announced that she would bring a resolution to depose Bishop Duncan before the House at its next regular meeting in September. Both Bishop Duncan (through his attorney) and the Standing Committee of his diocese have protested that such a step would be in violation of Canon IV.9. And there the matter stands.

Questions and Answers

Q What's the big deal about Bishops Cox and Schofield? They didn't protest the charges, and they both wanted to leave The Episcopal Church for other pastures.

A Since they were not objecting, what would have been so hard about following the procedures spelled out in the Canon (or about applying the right one to begin with)? Out of the many answers this question calls for (we live under a rule of law, not men/women; ignoring the law is anarchy, etc.), I think this one applies best: The big deal is that Katharine Jefferts Schori is a BISHOP, and not just any Bishop, but our Presiding Bishop. A law-breaking Bishop is a contradiction in terms---an oxymoron. To have a law-breaking Bishop who presides over the whole Church is a calamity of the first magnitude.

Q Hadn't both Bishops already resigned from the Church?

A Yes, that's part of the tragedy here. When faced with a trial on the charges made against him (for ordaining, on U.S. territory, ministers into another church of the Anglican Communion [God forfend!]), Bishop Cox sent a letter of resignation rather than undergo the ordeal (after all, he was 85 years old, and dealing with a wife who had Alzheimer's Disease). That resignation mooted the charges, but Presiding Bishop Jefferts Schori took his letter (of resignation, mind you!) and promptly referred it to the Review Committee for new charges that he was now "abandoning the communion of this Church," and so needed to be deposed. (That is punishing with a vengeance, and can in no sense be termed Christian---particularly in light of her breaking the law to achieve her end. Don't be shocked by my blunt language: somebody has to call the Presiding Bishop to account for her brazen unlawfulness. Her own advisors are clearly not up to the task, and if it takes a curmudgeon to do it, so be it.)

As for Bishop Schofield, he resigned his seat in the House of Bishops, but not his see as the Bishop of San Joaquin. This meant that a new bishop could not be chosen to lead the Episcopalians in the diocese who wanted to remain with The Episcopal Church (TEC) until that see was vacant. Rather than negotiate with Bishop Schofield for a resignation that would have accomplished this, Presiding Bishop Schori chose the deposition route under Canon IV.9, and then failed to get the required number of votes for his deposition. So technically, even though he does not see himself as still affiliated with TEC, Bishop Schofield remains the Episcopal Bishop of San Joaquin until he has been properly deposed, or until the House of Bishops accepts a properly negotiated resignation.

Q I thought the Presiding Bishop had appointed the Rt. Rev. Jerry Lamb as the Episcopal Bishop of San Joaquin to replace Bishop Schofield.

A That's another can of worms arising out our Presiding Bishop's refusal to follow the Constitution and Canons. She did not follow them in claiming that Bishop Schofield was deposed, so everything she did in San Joaquin after that declaration was without any validity. She had no authority under the Canons to "derecognize" the Standing Committee; she had no authority to call a "Special Convention" on less than 30 days' notice; and there was not even a proper quorum at the Special Convention to approve the designation of Bishop Lamb.

Q How is it that Canon IV.9 was not followed in the deposition of Bishop Schofield? He was inhibited first as the Canon requires, right?

A Yes, he was, but as I explained earlier, there were not sufficient votes on March 12 to depose him, and so the motion to depose failed to carry. If the Church wants to try again to depose him, it will have to begin the process anew. And there is a problem even there: Bishop Schofield was charged with "abandoning the communion of this Church", because he left it for the Province of the Southern Cone, which is another Church in the Anglican Communion, with which The Episcopal Church considers itself to be "in communion." But the second clause of the first section in the Canon (see the text below) defines "abandonment" to mean the joining of a church that is "not in communion" with this Church. So how can he be considered to have "abandoned the communion of this Church" by joining a church that is in communion with us? Well, they charged him with renouncing "the Doctrine, Discipline, or Worship of this Church” under the first clause. So either the Canon’s definition contradicts itself, or the “Doctrine, Discipline and Worship” of the Episcopal Church is not the same as the Doctrine, Discipline and Worship of the rest of the Anglican Communion, and the Episcopal Church has no business calling itself a “constituent member” of that Communion. Take your pick.

Q Haven't reasonable people disagreed over what number of votes the language of the Canon requires in order to consent to the deposition of a Bishop?

A The Canon says that the House of Bishops must consent to a deposition "by a majority of the whole number of Bishops entitled to vote." Some reasonable people, like the Rev. Mark Harris, Father Jake, and some of those who comment at his blog, side with the Presiding Bishop's Chancellor and say that there were enough votes, because in their view the language really means "by a majority of the whole number of Bishops present at the meeting and entitled to vote." But that view is contradicted by the history of the Canon itself, and by other analogous passages in the Constitution and Canons.

Q Explain what you mean, please.

A Ever since its first version adopted in 1853, and throughout its three subsequent amendments since then, the Canon has used language that meant the majority of the whole House of Bishops had to approve the deposition of a fellow Bishop. (See the details here.)

In 1901, as part of a complete revision of the Constitution and Canons begun in 1895, the General Convention of the Church adopted a Constitution which used the exact same language in requiring that any changes to the Book of Common Prayer, and any further changes to the Constitution itself, had to be approved by the same "majority of the whole number of the Bishops entitled to vote in the House of Bishops" (Constitution, Arts. X and XII). So when the revisers of Canon IV.9 adopted this same language in 1904, they were saying that the deposition of a Bishop---which, remember, had theretofore always required such a majority---would continue to require such a majority.

It cannot seriously be argued that the language of Arts. X and XII as so adopted could be read to mean that just a simple majority of the Bishops present at a meeting could approve changes to the Constitution or to the Book of Common Prayer. Look at what this would mean if it were true today: with 294 Bishops entitled to vote (as of March 12, 2008), a quorum of the House of Bishops is just 68 active Bishops (because Art. I, section 2 of the Constitution spells out that for purposes of a quorum, only active Bishops with jurisdiction are to be counted). So under such a reading of the language as originally adopted in 1901, at a meeting where just 68 active Bishops were present and voting (as on March 12), a change proposed for the Book of Common Prayer, for example, would pass if it got just 35 votes, or just twelve percent of the total number of votes entitled under that language to be cast on the question. That is not reasonable, by any means of construction.

Q OK, but as I look at the language of Arts. X and XII today, it's not the same anymore as the language in Canon IV.9, is it?

A No, you're right, and that difference supplies, ironically, the clincher to this argument. The reason is that General Convention amended those Articles in 1937 to insert the phrase "excluding retired Bishops not present" into the language describing the majority needed to approve any changes. The key point is that neither General Convention 1937, nor any Convention since, ever made the same change to the language of Canon IV.9---they left its language untouched. But the language they inserted into Articles X and XII shows unarguably that by excluding the count of any retired Bishops who are not present, they must by the same token be including in the count any active Bishops who are not present, since only those who are both retired and not present are to be excluded. So that means, before this change was made, the drafters understood the language to require the inclusion in the count of all Bishops, active and retired, who were not present at the meeting itself---and that is precisely the reading that has been uniformly followed throughout the history of Canon IV.9.

Q Well, not really "uniformly," correct?

A (Sigh.) Again, you're right. Supporters of Chancellor Beers's view, such as Bishop Stacy Sauls of Lexington in his recent Memorandum to the House of Bishops, regularly trot out two examples of depositions that occurred in the past fifteen years where it also appears, from the records that survive, that there was not a full majority of all the Bishops in the House present and voting for the depositions. But an act done in violation of the Canon cannot serve as a precedent for how to follow the Canon---that's a logical impossibility. The solution, if you want to depose people on the vote of just those who show up, is to strike the words "whole number" from the Canon and add the words "present at the meeting"---just as the drafters did in the case of Canon III.12.8 (d), which provides that a Bishop's resignation may be accepted by "a majority of those present" (emphasis supplied).

Q So, what's going to happen in the case of Bishop Duncan?

A All of the Bishops in the House of Bishops are going to have to educate themselves on these issues, and show up in September prepared to address and discuss them, because I predict that a real donnybrook will ensue if the Presiding Bishop does go forward with her single-minded plan to remove him without having received consent to inhibit him first, as required by the Canon. If the House simply kowtows to her wishes and rubber-stamps a "deposition"---even with the full number of votes required this time---it still will be an unlawful act, because as the Canon itself says, only a Bishop who has first been "inhibited" is "liable to deposition". Bishop Duncan, remember, was not inhibited; therefore, the Canon says he cannot be deposed under its own terms. My hope is that, as the Bishops read about this and educate themselves, they will come to see that it will be futile to pile one illegal act upon another, no matter what Chancellor Beers or the Rt. Rev. Stacy Sauls advises them, and that they will either halt the proceeding in its tracks, or (better yet) inhibit the Presiding Bishop herself from going forward with her unlawful plan.

Q If I want more information than just what is in this summary, where should I look?

A These eleven posts (seven on the canons, and four on San Joaquin) will provide you with all the links that you need to become an expert on the situation:

1. Five Violations of the Same Canon!

2. A History of the "Abandonment" Canons

3. Abuses of the "Abandonment" Canons (First Part)

4. Abuses of the "Abandonment" Canons (Second Part)

5. Update on the History Canon IV.9.2

6. The Sauls Memorandum Refuted (First Part)

7. The Sauls Memorandum Refuted (Second Part)

On the Situation in San Joaquin:

8. How to Follow the Canons in San Joaquin

9. A Tale of Two Dioceses

10. Remaking San Joaquin

11. Can a Diocese Ever Leave the Church?

And finally, as a bonus, here's how the House of Bishops, if it has the spine to act, could ward off the coming donnybrook:

12. Who Will Stand Up for What Is Right?

Envoi: Anyone who takes the trouble to read the foregoing posts will know that I feel strongly that Canon IV.9 is absolutely the wrong Canon to apply to the cases of Bishops Cox, Schofield and Duncan. I express no opinion here on what would be the proper outcome of a presentment brought against any of them on charges made under Canon IV.1, because a such a presentment would require a trial, and the outcome of each trial would depend on what facts could or could not be proven in each individual case. But that is not my point.

Rather, the point I want to drive home here is that Canon IV.9 is not only the wrong Canon to use in these circumstances, but it is not even being followed. The procedure which the Presiding Bishop proposes to use to depose Bishop Duncan is unlawful, just as was the procedure she followed in "deposing" Bishop Cox, because neither of them was ever inhibited, as the Canon requires. Believe me, it will be in no Bishop's interest (other than that of the Presiding Bishop, because she alone is driving the agenda) to go on record as flouting the plain meaning of the Canon---and in September, the Bishops will not be able to hide behind a voice vote. Every single Bishop attending will have to be recorded as voting either "Yea" or "Nay" on allowing the resolution to depose to go forward. The lawlessness of those who cast their lots with the Presiding Bishop will then be out in the open for all to see. And for a Bishop knowingly to vote to break the law means not only that he or she will be committing the very act with which they are charging Bishop Duncan---that is, "openly renouncing the Doctrine, Discipline and Worship of this Church", and breaking their own ordination vows to boot. It means also that by casting such a vote, each of them becomes a living contradiction of their faith, that is, a professed disciple of Christ who nonetheless tramples at will, when it is expedient, on the law of the Church.

In sum: the watchword among the Bishops in this instance had better be Matthew 11:15.

* * * * *

And now, here is the language of Canon IV.9 for reference:

CANON 9: Of Abandonment of the Communion of This Church by a Bishop

Sec. 1. If a Bishop abandons the communion of this Church (i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or (ii) by formal admission into any religious body not in communion with the same, or (iii) by exercising episcopal acts in and for a religious body other than this Church or another Church in communion with this Church, so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in this Church; it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop and with the certificate to send a statement of the acts or declarations which show such abandonment, which certificate and statement shall be recorded by the Presiding Bishop. The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. During the period of Inhibition, the Bishop shall not perform any episcopal, ministerial or canonical acts, except as relate to the administration of the temporal affairs of the Diocese of which the Bishop holds jurisdiction or in which the Bishop is then serving.

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false or utilizes the provisions of Canon IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement constitutes (i) a good faith retraction of the declarations or acts relied upon in the certification to the Presiding Bishop or (ii) a good faith denial that the Bishop made the declarations or committed the acts relied upon in the certificate, the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, terminate the Inhibition. Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

The Sauls Memorandum Refuted (II)

In this post, I complete my rebuttal to the Memorandum sent to the House of Bishops by the Rt. Rev. Stacy F. Sauls, of the Diocese of Lexington. As in the previous post, the original text of the Memorandum is in black, and my comments are inserted in purple. The footnotes (numbers preceded by a *) appear at the end. This part takes up with the argument beginning on page six of the Memorandum.

MEMORANDUM (Continued)

. . .

(3) Evolutionary Context


In its evolutionary context, “the whole number of Bishops entitled to vote” (1904 language) must mean something different than “the whole number of Bishops entitled at the time to seats in the House of Bishops” (1874). 



The very fact you choose “Evolutionary Context” as a framework for your analysis shows how you have preordained what the outcome of that analysis will be: since “evolution” implies a change from something that is less fit for its environment to something that is “more fit,” you want to set up an argument that the deposition language “evolved” from (A) a requirement that all Bishops (both active and retired) decide the fate of a colleague who is to be deposed without a trial to (B) a requirement that “only those Bishops present at a meeting where there is a quorum” decide it. The latter requirement is, in your view from present-day hindsight, more adapted to the realities of today's Church politics. Unfortunately for that point of view, the actual history of the canonical changes does not support such an analytical framework. Indeed, while all else around it may be said to have "evolved", the current language of the Canon has been the same since it was first introduced.

The 1904 amendment was enacted as part of a process of comprehensive constitutional and canonical revision. One of those revisions was making allowance for suffragan bishops,*16 which were constitutionally
authorized for the first time in 1910 under Article II, Section 4 of the Constitution.*17 



Again, not so fast, Bishop Sauls: there precious little evidence in the record that the 1904 changes to Canon IV.9, which as you said earlier (in n. *13) were part of a comprehensive revision proposed originally in 1895, were drafted so as to allow for the recognition of suffragan bishops with a seat but no vote some fifteen years later. As White & Dykman make clear (p. 62), the proposal to allow suffragans grew out of a commission appointed by the General Convention of 1904, which did not report its recommendations until the Convention of 1907, and which finally saw those recommendations adopted in 1910. In light of the comments of Mark McCall on this point, I am withdrawing the earlier criticism I had that there was no evidence of any connection between these events at all. I will concede that there may have been some connection, but as we shall see, what evidence there is fails to support your contention that a change in substantive meaning was intended between the 1874 language and that adopted in 1904.

The contemporaneous constitutional revision of 1901 did not, however, extend the right to vote in the House of Bishops to suffragan bishops. Thus, suffragan bishops were legally entitled to seat and voice but not vote. 



The position of suffragan bishops was not authorized, as you just said in the previous paragraph, until 1910. So how can you say that “in 1901 . . . suffragan bishops were legally entitled to seat and voice but not vote”? The truth of the matter is that in 1901 (and until 1910), suffragan bishops were not authorized to exist at all.
(See the discussion of Canon 5 of 1829 in White & Dykman, p. 60. The canon was repealed in 1904, but the post of "suffragan" did not officially come into existence until the Constitution was changed in 1910.)

In these circumstances, it was necessary to amend the 1874 language of the abandonment Canon,*18 which had set the standard for
determining abandonment based on the number of bishops entitled to seat rather than those entitled to vote.



This is sophistry. Since suffragan bishops as such did not exist until 1910, there was no “necessity” to amend the 1874 language in 1904. Instead, every bishop who was entitled to vote on abandonment in 1903 continued to be entitled to vote on such questions after the 1904 changes, while suffragan bishops, who did not officially exist before 1910, were created with no right to vote on any matter before the House until 1943, as you state in your footnote *19. As Mark McCall indicates in his comment on TitusOneNine, the change from talking about "the right to seats in the House" to "the right to vote in the House" was a non-substantive change: both before it and afterwards, until the Constitutional amendment six years later, those Bishops with seats in the House were the same Bishops who had the right to vote in the House.

The operative phrase in the 1874 Canon for determining the standard for
determining abandonment, “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops,” was altered with this change in mind in two important ways. First, “to vote” replaced “to seats.” Indeed, before Suffragan Bishops became entitled to vote in 1943,*19 there were as many as 24 of them serving in the House of Bishops at one time,*20 which would have radically altered the standard for determining abandonment were it not for the 1904 amendment.



You continue here to build on your earlier fallacy. It was a canon that defined who voted on abandonment, but it was a Constitutional provision which gave suffragan Bishops a seat, but not a vote, in the House in 1910. So you are arguing, in effect, that while there was enough support to change the Constitution in 1910, there was not enough support to do so in 1904, and so the proponents settled in 1904 for a revision to the canon that could have no possible meaning until the Constitutional amendment passed in 1910. This is a fantasy constructed on a fallacy (post hoc, ergo propter hoc).

The 1901 constitutional amendment also deprived bishops resigning for nonconstitutionally specified grounds of both seat and vote, although the House itself, through Rule XXV, makes it possible for those resigned Bishops, when moral reasons are not involved in the resignation, to be granted seat and voice. 



This is a giant red herring that you have now introduced to the analysis. Since the Constitution as amended in 1901 defined who could have a vote in the House of Bishops, no provision in any “House Rule” or canon could override the Constitution and grant such person a vote just because he was given a seat.

House rules also make it possible to seat honorary and collegial Members (Rule XXIV) as well as guests (Rule XXVI). Guests with seat and voice, as opposed to honorary and collegial Members, are not entitled to be present during Executive Session. Again, were it not for the 1904 amendment to the abandonment canon, the presence of these non-voting Members would have an impact, potentially significant, in the determination of abandonment.



Simply not true. It was the 1901 constitutional amendment, defining who could vote in the House of Bishops, that determined who could vote thereafter on questions of abandonment, given the language of the Canon already in place. That language could not override the language of the Constitution; nor could the provisions of any rule of the House of Bishops. So if you want to draw conclusions about what actually happened, you should focus on the 1901 constitutional changes (proposed initially in 1898), and not on the changes made to the canon in 1904, which simply brought it into line with the Constitution as previously amended (and which used, as we shall see, identical language). (See also the comments of Brad Drell and Mark McCall on this point.)

Second, and very significantly, the 1904 amendment revised the 1874 language in one other crucial respect. The amended Canon omitted the important words “at the time” from the operative phrase as used in 1874. Their omission in 1904 meant that the standard for determining abandonment was not the whole number entitled at the time to vote, thus not requiring that those entitled to vote but not present at the meeting be counted as had been the case with respect to those entitled to a seat theretofore. It is a change that makes sense given the 1904 amendment’s decision to vest the responsibility for determining abandonment in the House as a body and not in the Bishops as individuals.



Total and utter sophistry. Elimination of the words “at the time” did nothing to change the meaning of the language as amended in 1904. The simplest way to see this is to compare the language of the section before and after.

 Here is the 1874 language:


. . . if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent . . .

Remember---throughout the nineteenth century and until 1910, if you were a "Bishop of the Church"---assisting bishop, provisional bishop, or whatever---you had a seat in the House and were entitled to vote. (White & Dykman, p. 18.) Thus in the terms of the 1874 language, there was no distinction between "having a seat" and "having the right to vote." Keeping this in mind, therefore, now look at the 1904 change to the language in Canon IV.9:

If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent . . .


Both versions require the same majority: a majority of all the Bishops in the House who were entitled to vote. (Bishops with seat but no vote were, as pointed out above, first created by the constitutional changes of 1910.) As we will note later, the 1904 language was taken from identical language used in the 1901 constitutional amendments, and was intended to express that an identical (super)majority was required on three types of questions requiring approval by the House: (1) changes to the Book of Common Prayer; (2) amendments to the Constitution, and (3) consent to the deposition of a Bishop for abandonment.

In context, then, it is highly likely that the canonical drafters in 1904, in choosing the language “whole number of Bishops entitled to vote,” did so with the primary intention of correcting the 1874 language so as to provide for the new potential (and actuality) of significant numbers of Members with seats but without vote and making the finding of abandonment an action of the House as a body and not of the individual bishops.



It can only be considered “highly likely” after you have manufactured the context in which you are analyzing the language of the Canon. Nothing needed "correcting" in 1904, apart from the minor matter of bringing the Canon into line with the 1901 Constitution by changing the word "seats" to "votes". To repeat: not one Bishop lost, and not one Bishop gained, the right to vote on questions of abandonment as a result of that change, and when the suffragan bishops were created, they were simply not extended that right until long afterward, in 1943. So nothing changed in that entire 90-year time period: in 1853, in 1874, in 1895, 1904 and again in 1910 and up until 1943, the number of bishops required to depose was a majority of “the whole number of Bishops entitled to vote” at any given time in the House. Furthermore, under your theory you have not accounted for what caused the supposed fear of increasing that number in 1904 to disappear in 1943, when suffragan bishops were given the right to vote. Ever since that time, despite numerous attempts to limit voting rights in the House just to active Bishops, none of which was ever adopted, the number of those allowed to vote, and hence the majority required for a deposition, has only increased, and not decreased (amendments of 1970 and 1982; White & Dykman, pp. 21-22). Your “evolutionary” reading of the canon advocates a very non-Darwinian, sudden and drastic chopping of that number by more than a factor of two---which goes completely against the trend of all the changes in voting that have been made since 1904.

(4) Analogous Provisions


Similar canonical language and situations support interpreting the phrase “whole number of Bishops entitled to vote” as meaning entitled to vote at that meeting. Canon IV.9 itself uses the phrase “all the Members” with respect to the Review Committee when it means a majority of the total number of Members and not the phrase “the whole number of Members.”

Are you saying that there is a difference in meaning between "all" and "the whole number"? Let’s try it out and see. What if, instead of reading: “ . . . it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop . . .” Canon IV.9.1 read this way: “ . . . it shall be the duty of the Review Committee, by a majority vote of the whole number of its Members, to certify the fact to the Presiding Bishop . . .”? It still reads the same to me, and so I do not see your point here.

The constitutional provision for defining a quorum for a meeting of the House of Bishops states: “A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.”*21 Similarly, both Canons I.12.2 (regarding Diocesan Standing Committees in some circumstances) and Canon V.3 (regarding bodies of General Convention) successfully define quorums with reference to all Members without using the word “whole” as an adjective even when using the word “whole” as a noun to describe the total number of Members for purposes of giving notice. The use of the word “whole” as an adjective is not necessary to define the set of Members necessary for a quorum, and since it is unnecessary for that purpose, cannot be held to require such an interpretation in Section 2 of Canon IV.9. Indeed, it has a different purpose therein.

Now you are stating the obvious as though it were a point in your favor (which it is not): the words used to describe a supermajority will of necessity be different from those used to describe a normal quorum. So as a result, there are differences in purpose between the passages that you compare, but they have nothing to do with the use of the words “all” or “whole”. (And by the way, the word “all” is not used either in the definitions of a quorum that appear in Canons I.12.2 and V.3, so your argument on this point fails to show anything more than the semantic equivalency of the two words---which, as I say, is not a point in your favor.)

And while we are on the subject of using other passages in the Canons as analogies, what about the language of Canon III.12.8 (d), which shows that the drafters knew how to describe when a Bishop's resignation could be accepted “by a majority of those present”? (Emphasis added.) Or what about the careful use of the phase “whole number of Bishops entitled to vote” in Articles X and XII of the Constitution as proposed in 1898 and approved in 1901? (See White & Dykman, pp. 134 and 140.) Did the language there mean that the Constitution could be amended, or a new Book of Common Prayer authorized, by a simple majority of those Bishops present at the meeting? To the contrary: as those Articles were adopted in 1901, they required exactly the same number of Bishops to approve constitutional and Prayer Book amendments as had been all along required to approve the deposition of a Bishop. And the stated purpose of the Constitutional amendments at the 1901 General Convention was to make it "more difficult" to approve changes to the Prayer Book and the Constitution---thereby evidencing that the standard for deposing a Bishop at that time was already considered a high one.

Those Articles were subsequently amended in 1937---but Canon IV.9.2 was not---to exclude from the required “whole number of Bishops entitled to vote” any “retired Bishops not present.” (Emphasis added.) Do you thus contend that by analogy, the words “not present” were superfluous, since the phrase “the whole number of Bishops entitled to vote” meant only those who were actually present anyway? To the contrary, again: the 1937 amendments to Articles X and XII are further proof that the drafters understood the phrase “the whole number of Bishops entitled to vote” to refer to all Bishops entitled to vote, whether present at the meeting or not.

So the arguments by analogy to other passages all count against you. There is not a single analogy to another passage in the Constitution or Canons which supports your special-case interpretation of Canon IV.9.

(5) The Actual Purpose of the Word “Whole” in Canon IV.9

If the word “whole” in Section 2 of Canon IV.9 is not intended to refer to the total number of Bishops entitled to vote whether or not present, what is its purpose?

As we have just seen, that is just what the word “whole” was intended to refer to. By setting up the argument to come to your preordained conclusion, you now have to ask a false question. And if the premise in the question is false, then any answer to the question will be equally false.

It would be improper to interpret the Canon in a way that rendered the language chosen by the 1904 General Convention, in whole or in part, meaningless if doing so would be unnecessary. It cannot be ignored that the General Convention, while making significant changes in the definition of the consent requirement for deposition, chose to retain the word “whole”. Again, however, the meaning of that word is completely consistent with the interpretation of this memorandum. Indeed, the word “whole” has important application in the Canon thus understood in that it requires counting abstaining Members present at the meeting, for the purpose of determining what constitutes a majority at a meeting, thus making failures to vote, or abstentions, have the same net effect as a negative vote, which has the effect of making a majority more difficult to obtain than would otherwise be the case. It is not difficult to posit a situation in which Members might express their displeasure at a given Bishop’s conduct and at the same time refuse to consent to the sanction of deposition by registering an abstention. Indeed, the 2008 votes included several abstentions.

I agree that you have found a meaning for the word “whole”, but it is in the false context you have created as shown earlier. The proof of the falsity of your conclusion as to its meaning may be seen by consulting the use of the same language in Articles X and XII of the Constitution, where the number of “retired Bishops not present” is excluded in computing the required majority for an amendment to pass. The language there clearly requires the number of active Bishops who are not present to be counted in determining whether a majority approved the amendment, and by the same token, it would require including the number of Bishops present, active or retired, but who abstain from the vote. So the reason that “whole” may be read in the manner you suggest is not because it refers directly (and only) to abstentions as such, but because it refers to the “whole number of Bishops entitled to vote,” counting those who abstain as well as those who vote, and counting those Bishops who are not present as well as those who are. Thus by concluding that the language requires abstentions to be counted, you are speaking only a half-truth, and refusing to acknowledge the rest of the truth of what the language requires. It’s a little like one of the blind men who describes only the part of the elephant that he can feel himself---and then concludes that he has described the animal fully.

B. Precedent establishes that the House of Bishops acted appropriately in considering and acting upon the Presiding Bishop’s referral to it of the abandonment of communion certified to her by the Review Committee.

In recent history, the House of Bishops has taken similar action regarding two
Bishops, Donald Davies of Ft. Worth (1993) and Neptali Larrea of Ecuador Central (2004). In both cases, the exact procedure followed with respect to John-David Schofield and William Cox was used. Decisions were taken based on a majority vote of those present at a meeting of the House of Bishops. Although the minutes of both meetings leave much to be desired, it appears that 131 Bishops of the 276 total eligible to vote attended the 1993 meeting and of that 143 Bishops of the over 300 total*22 eligible to vote attended the 2004 meeting. In neither case did a majority of those eligible to vote attend.

All this establishes is that those votes were invalid under the Canon as well. (Not that it matters now, except as is necessary to point out that those votes cannot serve as valid precedents.) Doing something wrong can never be a precedent for how to do it---otherwise, nothing would ever be done right.


Very tellingly, no objection was made at all. Even more tellingly, no objection was made at the time by either Schofield or Cox, or by any Bishop present at the time, which included, in the case of Bishop Larrea, many current Members of the House. There is no legitimate distinction to be made between the former cases and the present ones.

That is precisely the problem with the present cases.

Indeed, a fundamental unfairness would arise were Bishops similarly situated as to the Review Committee’s findings and certification treated differently. Impartial administration of the Canons of The Episcopal Church requires recognizing the legitimacy of the present depositions and not the contrary as some have argued.*23

If you want a valid precedent, go to the case of Bishop McCoskry. To depose him in 1878, the Bishops had to wait a number of days before voting so that additional members could be rounded up from their vacations to make a valid majority for deposition. I discuss the details of that precedent in this post.

C. Procedural safeguards assure fairness and justice in the case of Bishops accused of having abandoned the Communion of this Church.



Canon IV.9 provides several important safeguards to assure a fair and just
consideration of the cases bishops accused of abandoning the communion of this Church. Those assurances of due process begin before deposition is even a remote possibility.

First, abandonment is carefully defined by Section 1 of the Canon. A Bishop may
abandon the communion in one of three ways: (i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or (ii) by formal admission into any religious body not in communion with the same, or (iii) by exercising episcopal acts in and for a religious body other than this Church or another church in communion with this Church, so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper
authority in this Church.



Ah, yes---abandonment is “carefully defined.” So carefully, in fact, that it should not be possible to use this Canon to charge someone who has joined another church in the Anglican Communion with “abandonment”---because under clause (ii) of the definition, it is only “abandonment” when you join a religious body that is “not in communion with the [Episcopal Church].” (Emphasis added.) But Bishops like Cox and Schofield, who have transferred to other churches in the Anglican Communion, are nonetheless charged with “abandonment”---of the “Doctrine, Discipline, or Worship of this Church” under the first clause. So either the Canon’s definition contradicts itself, or the “Doctrine, Discipline and Worship” of the Episcopal Church is not the same as the Doctrine, Discipline and Worship of the rest of the Anglican Communion, and the Episcopal Church has no business calling itself a “constituent member” of that Communion. Take your pick.

The Review Committee, composed of five Bishop peers of the accused (a majority of the Committee) along with two Priests and two confirmed adult lay communicants,*24 must first find by a majority vote of all its Members that at least one of the three circumstances constituting abandonment is present and certify that fact to the Presiding Bishop. Inhibition of a Bishop so certified is possible only with the consent of the “three senior Bishops having jurisdiction in this Church.”

Even after the certification and, in some cases, inhibition, the certified Bishop has two months to make a Verified written statement to the Presiding Bishop that the facts alleged in the certification are false.

Not so fast again, Bishop Sauls---the language of the Canon makes clear that the only person who is given sixty days to respond is a Bishop who has been inhibited: “Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false . . .” (emphasis added). It is ludicrous to speak of “safeguards” when the plain language of the Canon was not followed in the case of Bishop Cox, nor is it currently being followed in the case of Bishop Duncan.

If the Presiding Bishop finds that the statement is a good faith retraction or denial, she or he may, with the consent of a majority of the three senior Bishops, dissolve the inhibition and drop the matter. The Presiding Bishop’s discretion is limited (in favor of the accused) by a standard of good faith, to which she or he is canonically accountable. The accused is protected by the necessity of majority consent in the House of Bishops, composed entirely of his or her peers to whom the accused is presumably well known. The House has the right to initiate further investigation, which indeed the accused might request. It should also be noted that a Bishop accused of abandoning the communion of this Church can also avoid further proceedings by renunciation pursuant either to Canon III.7.12 or Canon IV.8.

In the present cases all the procedural safeguards were followed. 



They most certainly were not (see also the comments of Chancellor Stephens on this point). Bishop Cox was deposed without ever having been inhibited, and Bishop Schofield’s joining the Southern Cone was deemed an “abandonment” despite the definition in clause (ii). And now you are construing the Canon to reduce by more than half the number of Bishops required to approve a deposition. These are what you call "safeguards"???

It is particularly noteworthy that neither Bishop certified as having abandoned the communion at any point whatsoever disputed the allegation of the abandonment as certified by the Review Committee, renounced the actions, denied the actions in any way, requested a further hearing, made any rebuttal, issued any defense, or contested the allegation whatsoever.


Have you considered the possibility that the Bishops in question saw clearly, from the arbitrariness behind the application of the Canons, that it would have been utterly futile to do so? Nevertheless, it is my understanding that Bishop Cox has demanded that the Presiding Bishop retract her declaration of deposition, on the ground that the deposition was illegal, and that to refer to him as “deposed” is an act of defamation.
Bishop Duncan, as well as the Standing Committee of his Diocese of Pittsburgh, have not let his pending "deposition" go without protest, either.

Nor did either do so despite having an affirmative canonical duty to do so to avoid deposition.*25 The fair opportunity to do so having been provided, but ignored, the right must at this point be considered waived.



As a person trained in the law, you know well that an illegal act does not become lawful just because no one objects. Illegality, indeed, cannot be waived, because no one can lawfully consent to an illegal act. (See also David Trimble's comments on this point.)

Finally, it must be noted that no Member of the House of Bishops, present or not present, requested further action, investigation, or hearing as permitted under House rules. No challenge was made to the Parliamentarian’s ruling on the meaning of Canon IV.9. Similarly, no Member of the House of Bishops, as permitted by Rule XVII, requested reconsideration of the House’s action. Again, no request having been made at the time, the right to do so must now be considered waived.



“Considered waived”---that is sheer legal obfuscation. (See the detailed refutation of your logic on this point by Mark McCall.) Waiver requires an informed consent. If no one at the meeting was aware that the Canon was not being followed, then there could not have been a waiver. And if you are saying that everyone at the meeting knew that the Canon was not being followed, then you are back to the impossibility of waiving an illegality.

Under the circumstances, then, the House can only conclude that a fair and lawful procedure was followed, as provided by the Canon, and that the decision canonically made stands as the legitimate judgment of the House.



I submit instead that the House should treat the depositions for the nullity that they are, leave the Bishops alone, and negotiate a resignation with Bishop Schofield that would allow the Church to go forward with a lawful replacement in San Joaquin. (See the details of my recommendations here.)

Endnotes

*16 The title “suffragan” had been previously but rarely used in TEC, but the so-called suffragan bishops functioned as canonical “assistant” bishops.


*17 White and Dykman (n 5) 62.


*18 Although the office of Suffragan Bishop was not created constitutionally until after the 1904 amendment to the abandonment canon (the creation of the office of suffragan having been passed on first reading in 1907, the next General Convention, and on second reading in 1910), the creation of the office had long been contemplated. It had been proposed as early as 1847, and gained serious interest for missionary reasons at the General Convention of 1871 (the year after the Church of England began again appointing Suffragan
Bishops) and thereafter [White and Dykman (n 5) 60-62].
*19 White and Dykman (n 5) 21.


*20 The Episcopal Church Annual: 2008 (Harrisburg: Morehouse Publishing, 2006).
*21 Constitution of The Episcopal Church, Art. I, Sec. 2 (2006).
*22 The Episcopal Church Annual 2004 (Harrisburg, Pa.: Morehouse Publishing, 2004) 429-436.


*23 “Western Louisiana Bishop: ‘Two Sets of Rules for One Church,’” The Living Church (17 April 2008)

http://www.livingchurch.org/news/newsupdates/2008/4/17/western_louisiana_bishop_two_sets_of_rules_for_one_church.
*24 Canon IV. 3.26.
*25 White and Dykman (n 5) 1082.

The Sauls Memorandum Refuted (I)

The lengthy Memorandum to the House of Bishops authored by the Rt. Rev. Stacy F. Sauls of the Diocese of Lexington is, as many bloggers have already spotted, full of inconsistencies and erroneous analysis. In considering how best to demonstrate this point, I have decided to use a "Fisking" format for its first five pages, where the errors accumulate until the conclusions can no longer be validly drawn. I am putting this part of my response up now; the second part is posted here. Suffice it to say that everyone who takes the trouble to follow along and see what is being claimed in light of what is actually the case should have no difficulty in seeing, without any help from me, how these errors permeate the rest of the Memorandum. The original is in black text, and my fisks are in purple; the footnotes (numbers preceded by a *) are reproduced at the end.

MEMORANDUM
May 27, 2008


To: House of Bishops


From: Task Force on Property Disputes


Re: Proper Use of Abandonment Procedures for Bishops

Subsequent to our meeting at Camp Allen, some Bishops of The Episcopal
Church*1 and some commentators*2 have suggested that we may have failed to follow our own rules for giving consent to the deposition of a Bishop for abandoning the communion of this Church. A careful analysis and examination of the canon law, however, confirms that consent to deposition was procedurally appropriate, as the House’s Parliamentarian ruled and the Presiding Bishop’s Chancellor has advised.*3

A “careful analysis and examination of the canon law”? We shall see.

This memorandum is intended to provide the Members of the House with necessary legal background and the reasoning supporting that conclusion for the assurance of the Members as to past actions and in advance of their consideration of any additional such actions in the future.

Actually, this memorandum is intended to arrive at a foregone conclusion (that the Presiding Bishop and her Chancellor committed no error), and would serve as a very poor guide to any such additional actions in the future.

Conclusion

The House of Bishops followed the proper canonical procedure for consenting to the depositions of John-David Schofield and William J. Cox from the Ministry of The Episcopal Church as provided in Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) for the following reasons:

A. The intended meaning of Section 2 of Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) is that the consent of a majority of the Bishops voting at a meeting of the House of Bishops constitutes valid consent for the deposition of a Bishop.

B. Precedent establishes that the House of Bishops acted appropriately in considering and acting upon the Presiding Bishop’s referral to it of the abandonment of communion certified to her by the Review Committee.

C. Procedural safeguards assure fairness and justice in the case of Bishops accused of having abandoned the Communion of this Church. 


All right, so we know what your conclusions are before we start (and so, most likely, did you). Now let’s look at the analysis.

Background


The House of Bishops met for its annual, and duly noticed, spring meeting at
Camp Allen, Navasota, Texas on March 7-12, 2008. As is its custom, the House
scheduled a business session during that meeting. Members were notified in advance of the business session that the certification of the abandonment of the communion of this Church by the Rt. Rev. John-David Schofield, Bishop of San Joaquin, and the Rt. Rev. William J. Cox, Bishop Suffragan of Maryland, Res., would be considered. The business session was held, as planned, on March 12, at which time the subject of consent to deposition was before the House. 

Actually, the “business meeting” (meaning chiefly the business of deposing Bishops Cox and Schofield) was scheduled for the last day of the Camp Allen session, when it was highly likely that a number of Bishops would already have left. It was scheduled for March 12 because that was the earliest day following the 60-day period in which Bishop Schofield had to deny the charges that he had “abandoned the communion of this Church” under Canon IV.9 (having been given notice of his inhibition on January 11), and thus was the only day on which the assembled Bishops who were left by that point could take up the “business.”

With respect to each Bishop, a voice vote was taken, which was not unanimous and included abstentions but which clearly indicated majority consent to the depositions of Bishops Schofield and Cox by a wide margin in each case.

By holding just a voice vote, the Presiding Bishop ensured that the actual count of those voting for and against, and the abstentions, would be forever lost to the record. How convenient it is not to have to deal with the actual numbers, when by the time the matter was called for discussion the attendees were down to just 68 active bishops plus an indeterminate number of retired bishops, and the departure of just one active bishop (since retired bishops do not count toward a quorum) would have meant there was no longer even a quorum to hold the vote at all!

Presiding Bishop Katharine Jefferts Schori, as required by Section 2 of Canon IV.9, has since deposed both from the Ministry of The Episcopal Church.*4

Deposition was not “required”---indeed, the motion to depose lost---if it was not approved by the requisite number of Bishops.

Reasoning


A. The intended meaning of Section 2 of Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) is that the consent of a majority of the Bishops voting at a meeting of the House of Bishops constitutes valid consent for the deposition of a Bishop.

An extraordinary statement, given the history of this Canon: although the language used has differed over the years, the requirement that the deposition of a colleague be approved by a majority of all Bishops entitled to vote in the House (whether present or not at the meeting where the vote is taken) has remained unchanged since the Canon’s original enactment in 1853, as we shall see.

The procedure for deposing a Bishop of The Episcopal Church for abandonment of the communion of this Church requires, upon certification of the abandonment by the Review Committee, that the Presiding Bishop “present the matter to the House of Bishops at the next regular or special meeting of the House.”

Not so fast, Bishop Sauls---to be “liable to deposition”, a Bishop must not only be certified by the Review Committee to have abandoned the communion, but he must also have been first inhibited with the consent of the three senior Bishops of the Church. You (conveniently) left out the requirement for inhibition in setting up your premise. Is that because you also want to use this Memorandum to "justify" the Presiding Bishop's proposed deposition of Bishop Duncan without any inhibition, just as she did with Bishop Cox?

The Canon goes on to provide in its next sentence:

"If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed."

The current language of the Canon has evolved over time, and some understanding of that evolution is necessary to understand the meaning of the Canon’s current language.


Indeed.

The abandonment Canon (currently numbered IV.9) was originally enacted in 1853, and pertinently amended in 1859, 1874, and 1904.*5 It has consistently provided for Bishops found to have abandoned the communion of this Church, with required consent, to be deposed by the Presiding Bishop. It is the giving of that consent that is primarily at issue now.


Indeed, again.

The method and requirements for giving consent have evolved over the Canon’s 165-year history, as follows:

 • 1853: “with the consent of the majority of the Members of the House of
Bishops.”*6

 • 1859: “with the consent of a majority of the House of Bishops.”*7

You have misquoted White & Dykman here, on a point that is crucial to your later argument. The 1859 version did not read as you have it, but said the same as the 1853 version: “with the consent of the majority of the House of Bishops” (emphasis supplied).

 • 1874: “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops” at a duly convened meeting of the House.*8

 • 1904: “consent of the House, by a majority of the whole number of Bishops entitled to vote.”*9

 
Absent evidence to the contrary, we must interpret the General Convention’s choice to change the language defining the necessary consent from one version to another also to indicate an intention to change the definition itself.

Why assume that a change in the language necessarily meant a change in meaning? The history of the Canon (which you have relegated to some isolated footnotes, and which you have interpreted based on a misreading of the actual changes) shows instead that it was amended in a continuing process intended to clarify its meaning as applied to specific circumstances as they arose.

Relegating some explanation of the rationale behind the original enactment and its amendments to the footnotes, the meaning of the consent definition evolved over time as follows:

 • 1853: the consent of a majority of all Members of the House of Bishops was required without the necessity of a meeting being held.*10

The House did not read it that way at all. It held a meeting to vote on the deposition of Bishop Ives immediately following the adoption of this Canon at the General Convention of 1853. Surely such an interpretation of the Canon by those who enacted it, evidenced by their conduct immediately afterward, completely outweighs your unfounded speculation that a meeting was not considered necessary under the Canon.

 • 1859: the consent of a majority of the Members in attendance at a meeting of the House of Bishops (the meeting requirement being implicit and established by subsequent interpretation).*11

Not by “subsequent” interpretation, but by consistent interpretation ever since the Canon was first adopted. Your argument in the footnote (*11) that there was a change from the definite to the indefinite article in front of the word “majority” has no foundation in fact, and leads your subsequent conclusions badly astray.

• 1874: the consent, at a meeting of the House of Bishops, of a majority of the total number of Members entitled to a seat, whether or not present.*12

Or, said another way, it was exactly the same majority of Bishops required under both the 1853 and the 1859 versions. The only relevant change in the 1874 amendment was to make the requirement of a meeting of the House explicit, and in so doing the House simply acknowledged what had been its consistent practice over the previous years.

• 1904: the consent of the House as determined by a majority of the Members
entitled to vote at that meeting (not entitled to vote whether or not present)*13

Now you have jumped the ship in order to arrive at your predetermined destination. Your interpolation of the words “at that meeting”---which are not in the language of the Canon itself---cannot be justified by logic or history, and is not justified by any of your subsequent arguments.

The interpretation of the 1904 language is governed by five considerations: (1) the issue of who gives consent, (2) canonical context, (3) evolutionary context, (4) analogous provisions, and (5) the actual purpose of the word “whole” in Canon IV.9.
 

(1) The Issue of who Gives Consent


The 1904 amendment replaced the consent of the Members acting individually with the consent of the body itself. This is a significant difference with practical implications.



No, it is a specious difference wholly without support in the history and application of the Canon, and one that is invented only to get you where you have already decided to go.

The election of Bishops, for example, requires the consent of certain individual Members (those Bishops having jurisdiction) and not the consent of the House of Bishops expressed in a vote thereof, even when the consents are given during General Convention.*14 



Your footnote *14 continues the specious distinction you have just made. You cite to Canon III.11.3. Subsection (c) of that Canon reads that “. . . notice of [the] consent [by the House of Deputies to the election of a Bishop] . . . shall be sent to the House of Bishops.” (Emphasis added.) The House of Bishops votes on the matter during one of its regular sessions at General Convention---individual consents are not gathered up during coffee breaks and tallied afterward, but a vote of the House is taken and recorded in its Minutes. That vote is then certified to the House of Deputies, if the required number of active Bishops have consented. The only time no meeting is needed to take the vote is when the election is being ratified in the period between one General Convention and three months before the next.

When the Members act individually, the majority is determined based on the total number of individuals and not based on the number of those individuals present at the meeting. 



The specious logic continues. The Bishops act “individually” when they are not in a meeting, as when they are ratifying an election when General Convention is not in session. When they vote on an election at one of their meetings during General Convention, the same number of affirmative votes is required by the Constitution and Canons as when they are voting individually outside of Convention: it is a majority of all Bishops exercising jurisdiction, and has nothing to do with the number who are present at a given meeting during Convention.


On the other hand, when the House acts as a body, a majority is determined based on the number of those eligible to vote who are present.*15 



This is not necessarily the case. As just noted, if the vote is to ratify the election of a colleague during a session of General Convention, a majority of all Bishops exercising jurisdiction in the Church must still give their consent, regardless of the number present at the given meeting, and as we shall see, the majority of “the whole number of Bishops entitled to vote” is also not tied to the number who are actually present. Likewise, your cite in the footnote to Canon V.3---specifying that a quorum is a majority of all the members in a given body, except where the Constitution and Canons provide otherwise, is a non-sequitur. It is not Canon V.3, but Art. I, section 2 of the Constitution that specifies the definition of a “quorum” of the House of Bishops, and the number it specifies is smaller than the number specified by Canon V.3, because Art. I, section 2 leaves bishops who have resigned jurisdiction out of the count for a quorum.

In changing who gives consent from the individual Members (1874) to the House itself (1904), a difference in how a majority is to be determined was presumably intended. Otherwise, there would be no practical difference between the 1874 language and the 1904 language.


Precisely the point! All that occurred in going from the 1874 language to the 1904 language was a grammatical change of subject, not a change in meaning. Your distinction between “the House, by a majority . . . of the Bishops” and “the majority of the House” is a distinction without any semantical difference. This is especially the case when we take up the use of the word “whole” (in Part II, to come).


Not only is there not clear intent to the contrary, on the whole, evidence of intent favors the general rule as set forth in Canon V.3, as explained below.



The “general rule as set forth in Canon V.3” is a rule dealing with a quorum, not a particular vote on deposition, and it has no application to the House of Bishops, because Art. I, section 2 of the Constitution supersedes its definition.

(2) Canonical Context 


It is noteworthy that the reference to “a majority of the whole number of Bishops entitled to vote” in the current Canon immediately follows the requirement of a meeting of the House and is specifically linked to the House itself and not to the individual Members thereof. Therefore, the plainest reading in context is that it means “a majority of the whole number of members entitled to vote” at that meeting.



I dealt with this argument in my previous post, and showed how this meaning does not at all follow from your artificially derived distinction between “the House” and “the individual members thereof.”

Endnotes
*1 “Diocese of South Carolina Protests Presiding Bishop’s failure to follow the Canons,” (Diocese of South Carolina, 27 March 2008)  http://www.dioceseofsc.org/mt/archives/000337.html.


*2 See, e.g., George Conger, “Call for Review after Trial ‘Flouted Church Rules,’” Church of England Newspaper, 28 March 2008, p. 5.


*3 “House of Bishops’ Votes Valid, Chancellor Confirms,” (Episcopal News Service, 15 March 2008)
http://www.episcopalchurch.org/79901_95735_ENG_HTM.htm.
*4 The Deposition of a Bishop (John David M. Schofield) dated March 12, 2008 and the Deposition of a Bishop (William J. Cox) dated March 12, 2008, in both cases signed by the Most Rev. Katharine Jefferts Schori and witnessed by the Rt. Rev. Richard S. Chang and the Rt. Rev. Kenneth L. Price, Jr.
*5 Edwin Augustine White and Jackson A. Dykman, Annotated Constitution and Canons vol. 2 (1981 ed.) (New York: Office of the General Convention, 1985) 1079-1082 (herewith cited as White and Dykman).


*6 White and Dykman (n 5) 1079.


*7 White and Dykman (n 5) 1080.


*8 White and Dykman (n 5) 1081.
*9 White and Dykman (n 5) 1082.


*10 The canon was originally enacted in response to the decision of Bishop Levi S. Ives, Bishop of North Carolina, to become a Roman Catholic in 1852.


*11 The language of the amended Canon does not explicitly require a meeting, but does change the consent required from that of the Members thereof to being that of the House itself. There seems to have been some dispute, possibly relating to the change in language, over whether a meeting was required when the Bishops were forced to consider the abandonment of Bishop George D. Cummins, the Assistant Bishop of Kentucky, in order to found the Reformed Episcopal Church in 1873. Presiding Bishop Benjamin Bosworth Smith (Bishop of Kentucky) obtained the consent of a majority of the total number of Bishops without calling a meeting after which Bishop Smith deposed Cummins. Concern that the intention was to require the action at a meeting of the House led the House, meeting at the General Convention of 1874, to reaffirm the consent in the context of a meeting, and in October of 1874, Bishop Smith repeated the deposition. [White and Dykman (n 5) 1081]. A logical argument can be made that the change from the definite article “the” to the indefinite article “a” in the 1859 amendment together with the change to requiring
the consent of the House as such implied that a meeting was required and redefined the consent requirement as meaning as given by a majority at a meeting.


In fact, as noted above, there was no such change, and so this speculation is groundless.

*12 The extraordinary requirement of a majority of the total number of Bishops entitled to a seat was likely a reaction to the crisis of the Reformed Episcopal Church schism and confusion surrounding the deposition of Cummins.

As we have already seen, there was no change in the specified majority of Bishops required to vote on a deposition from 1853 through 1874, and continuing right down to today: it was then, and is now, a majority of all ("the whole number") of the Bishops entitled at any given time to vote in the House. 

*13 The 1904 language was originally proposed to 1895 Convention by the Joint Commission on Revision of the Constitution and Canons [General Convention, Journal of the General Convention of The Episcopal Church, 1895 (General Convention, New York 1895) 679]. The report was taken up by the Convention in sections, the abandonment canon being revised in 1904 [General Convention, Journal of the General Convention of The Episcopal Church, 1904 (General Convention, New York 1904] 325-326, 598.


*14 Cf. Canon III.11.3 (c) and (d).


*15 Canon V.3.

This completes Part I of this Refutation. Part II is posted here.

Watch This Space

In a previous post concerning the history and interpretation of the section of the Abandonment Canon that deals with deposition of the abandoning Bishop (Canon IV.9.2), I closed with this challenge: "For all the bytes out on the Web that have been devoted to this subject, I have yet to see a convincing textual argument that would justify the Presiding Bishop's (and her Chancellor's) misreading of the Canon. Now, who's next?"

Well, it appears that no less formidable a canon lawyer than the Rt. Rev. Stacy F. Sauls of the Diocese of Lexington has thrown down the gauntlet.  Much of what he says in his interpretation of the language of Canon IV.9.2 tracks the same defective argument I analyzed in my previous post, and so has already been refuted. But he goes further, and attempts to draw wholly new conclusions out of the simple change in subject that I pointed out had occurred between the 1874 and the 1904 versions of the Canon. He also brings in new contextual and historical arguments, all of which require a more detailed and thoughtful treatment that will be worthy of such a presenter. Let me just say at this point that I welcome his challenge---it is exactly what I have been asking for from the Presiding Bishop and her colleagues. 

Thus, as they say on the billboards, "Watch This Space." In the meantime, I would refer you to the consummate lay person's refutation already posted by the inimitable Christopher Johnson.

Who Shall Own the Property?

[N.B.: there is an update to this post below, in light of the Virginia court's 6/27/2008 decision.]

Frank Kirkpatrick, a professor of religion at Trinity College who has contributed some notable articles about the split that has occurred in the Anglican Communion and in The Episcopal Church itself, has a new article which observes that as of December 2007, there were some 55 lawsuits pending in the courts over issues of who owned or controlled property that had belonged to churches which were once in TEC, but which had since voted to leave. Given that the Church has just 100 dioceses within the United States, that is a remarkable number: on average, there is a property dispute pending in more than half of the dioceses in this country.

Attention is focused for the time being on the Diocese of Virginia, where a hearing is scheduled May 28 in the Circuit Court for Fairfax County in the ongoing litigation between that Diocese (with The Episcopal Church as its partner) and the eleven churches that have left it to join the Convocation of Anglicans in North America ("CANA"). The issue to be addressed at that hearing will be the constitutionality of Virginia's "Division Statute" (Va. Code § 57-9[A]), as held by the Court in an earlier ruling to be applicable to the current situation. For reference, the statute provides as follows:

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.

This statute was enacted in 1867, following the Civil War, at a time when Methodists, Baptists and Presbyterians in Virginia were experiencing a considerable amount of structural turmoil that led to the splitting off of a number of congregations from the parent churches. In the years following its passage, there were some twenty-nine orders entered by Virginia courts declaring the ownership of Methodist and Presbyterian properties alone, but the statute had not been applied to an Episcopal church before the present case.

In his earlier decision, Judge Randy Bellows of the Fairfax County Circuit Court found that a "division" had "heretofore occurred" within the Diocese, The Episcopal Church, and the Anglican Communion itself, and that CANA was a "branch" of those entities which the dissident parishes were free to decide to join. This view of the statute then raised certain constitutional issues about the statute in light of the First Amendment (made applicable to States some time after §57-9 was enacted). These issues are to be addressed at the May 28 hearing. (Complete links to all the documents filed to date in this lawsuit may be found here---my thanks to the Diocese for putting this page together.)

The chief constitutional issue concerns the deference, if any, which the State of Virginia must accord to The Episcopal Church as a "hierarchical church." (Such a church is marked by increasing levels of higher and higher authority, beginning with local congregations and rising through regional entities---dioceses, in the case of TEC---to an overall national authority at the top---in the case of TEC again, its General Convention. It is in contrast to a "congregational church," in which the local congregation is itself the highest authority, and makes all the decisions affecting that church. Thus the latter type of church can have disputes only within individual congregations, while disputes in hierarchical churches are between congregations and those entities above them in the hierarchy.) Under a United States Supreme Court decision of 1872, courts are forbidden by the provisions of the First Amendment from scrutinizing religious doctrine or teachings in deciding civil cases (Watson v. Jones, 80 U.S. [13 Wall.] 679). Under Watson, if the highest church body to address the matter has decided a doctrinal or religious question in such a way as to resolve the issue of, say, who owns the church's property, then that decision cannot be questioned or reversed by a civil court. And if there were no such decision, presumably (although the Court did not say) the civil courts would have to refrain from going into the matter until the highest church body had an opportunity to do so.

Such was the law for more than 100 years. Then, in 1979, the Supreme Court decided Jones v. Wolf, a case from Georgia involving a congregation in the Presbyterian Church which split up over doctrinal differences (443 U.S. 595). The majority of the congregation voted to leave for another branch of the Church, and claimed the right to keep the church property; the minority, which wanted to stay, lost its suit for the return of what it claimed was its property. Applying what it called "neutral principles," the Georgia Supreme Court had examined the church's deed, its corporate charter, the governing documents of the Presbyterian Church, and State law concerning implied trusts, and found no facts or language to support a conclusion that the congregation's property was held in trust for the parent church. In doing so, it gave no deference to a decision by the supervising Presbytery (which exercised regional authority over the congregation) that the minority was the only true continuation of the original congregation, and that the majority no longer had authority to speak for the Presbyterian Church.

The United States Supreme Court, in a 5-4 decision, upheld Georgia's "neutral principles" approach to deciding the dispute, but remanded the case for the Georgia Supreme Court to articulate whether "majority rule" was a part of those principles. In doing so, it expressly held that Georgia was not required by the First Amendment to defer to the hierarchical ruling as to which group was the Church's true successor:

 . . . We hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.

The dissent would require the States to abandon the neutral-principles method, and instead would insist as a matter of constitutional law that whenever a dispute arises over the [443 U.S. 605] ownership of church property, civil courts must defer to the "authoritative resolution of the dispute within the church itself." Post, at 614. It would require, first, that civil courts review ecclesiastical doctrine and polity to determine where the church has "placed ultimate authority over the use of the church property." Post, at 619. After answering this question, the courts would be required to "determine whether the dispute has been resolved within that structure of government and, if so, what decision has been made." Post, at 619 n. 6. They would then be required to enforce that decision. We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.

One would think that this language makes the holding of the case fairly clear. Yet here is a quotation taken from the supplemental brief for the Diocese of Virginia submitted for the May 28 hearing: "The Commonwealth [of Virginia] has no legitimate interest, compelling or otherwise, in the outcome of church property disputes. For the Commonwealth to assert an interest in promoting decision-making by congregational majorities---particularly within a hierarchical church, and contrary to that church's rules---itself violates the First Amendment." (Brief at p. 13, citing for a support a case that was decided before the decision in Jones v. Wolf.) Pardon, but as we have just seen, the Supreme Court in Jones v. Wolf sent the case back to Georgia for the courts to do just what the Diocese claims would violate the First Amendment---to decide a church property dispute on neutral principles, including majority rule, without having to defer to a preexisting adjudication in favor of the minority that had been made by the hierarchical church.

It is true that the Presbyterian Church in Jones, unlike TEC in this case, lacked any trust language in its governing document. Could that be a defining difference? Apparently TEC and the Diocese think it is. They derive this notion from the following oft-quoted passage from Jones v. Wolf:

The dissent also argues that a rule of compulsory deference is necessary in order to protect the free exercise rights "of [443 U.S. 606] those who have formed the association and submitted themselves to its authority." Post, at 618. This argument assumes that the neutral-principles method would somehow frustrate the free-exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral-principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. [Fn. omitted.]

What we have here, however, is not a holding by a majority of the Supreme Court, as in the quote in the previous paragraph, but an answer to an objection to that holding made by the dissent. And in answering that objection, Justice Blackmun stepped out of his normal role as Supreme Court Justice and engaged in the wholly unjudicial role of practicing law: he gave legal advice to those who would want to devise a way around the Court's holding. "Simply change your deeds or charter, or even put an express trust clause in your constitution, and then the courts will be required to honor your intent." Then, however, the justice part of Justice Blackmun takes over, and adds this caveat: "provided it [the trust] is embodied in some legally cognizable form." Which is to say: "I'm not going to draft the language for you. Just make sure it is in a form such that the courts can give legal effect to it."

This is a fairly crucial point, because I believe that the ultimate outcome of the Virginia lawsuits will in some way turn upon it, so let's be very clear here. Justice Blackmun and the majority in Jones v. Wolf first hold that (1) a State is free to decide church property disputes in accordance with "neutral principles" of law---meaning principles that are no different, as far as the law of property is concerned, from those used in all other cases of property disputes. Next, they hold that (2) as a part of those "neutral principles", they are free to incorporate a rule that in the absence of special provisions to the contrary, a vote by the majority controls what happens to the property---and they send the case back to Georgia to have just such a rule clearly articulated. Then, in answer to the dissent's objections that this result does not comport with the deference owed to hierarchical churches in matters of religious governance, Justice Blackmun steps out of his robes for a second to say: "Not at all---here's how you can be hierarchical and still keep your property, even under neutral principles and majority rule: just put an express trust in favor of the hierarchical church into the church deeds or charter, or into the hierarchy's constitution, and the courts will be bound to recognize what you have done---if you put it into legally cognizable form."

Well, TEC took Justice Blackmun's legal advice---or tried to. Immediately after the decision in Jones v. Wolf came out, TEC's General Convention of 1979 adopted what is known as the "Dennis Canon," named after the Bishop who drafted and proposed it (adding sections 4 and 5 to Canon I.7):

Sec. 4. 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. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.

(For a while, it appeared as though the House of Deputies had never properly consented to the adoption of this Canon after it passed the House of Bishops, but that controversy now appears to have been laid to rest, even if some questions remain.) The problem with the Dennis Canon as drafted is that it purports to create a trust, but it is the trust beneficiary who is doing the creating, and not the owner of the trust property itself. In the law of trusts, the person creating a trust is called the settlor, or trustor; the person holding title to the property placed in trust is called the trustee; and the person for whose benefit the trust is created is called the beneficiary. For obvious reasons, the law does not allow beneficiaries to go around declaring that someone else's property is held in trust for their benefit---yet that is just what TEC did with its Dennis Canon. Does it satisfy Justice Blackmun's criterion of a trust in "legally cognizable form"? In cases where the Canon has been involved, some courts have said yes, and some have said no---but the real story, as so often in the law, is not that simple.

Courts that have recently considered the effect of the Canon in church property disputes have in many cases also applied the "neutral principles" approach. For example, in Berthiaume v. McCormack (153 N.H. 239, 891 A.2d 539 [2006]), the New Hampshire Supreme Court ordered its priorities as follows: first, a court must “consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use or disposal of church property.” (Id. at 248.) It justified this ranking by holding that such an approach “is consistent with [the] rules governing the resolution of property disputes generally. In resolving such disputes, [courts] consider extrinsic evidence and the circumstances surrounding a conveyance to determine the parties’ intent only if the language of the relevant documents contains either patent or latent ambiguity.” (Ibid. [citations omitted].)

The highest courts of Alabama, Georgia, Kentucky and other states have likewise applied a “neutral principles” approach to church property disputes. (Trinity Presbyterian Church v. Tankersley, 374 So.2d 861, 865-66 (Ala. 1979) ("in this litigation . . . the composition of the church’s corporate structure was the principal issue to be determined”); First Evangelical Methodist Church v. Clinton, 257 Ga. 459, 360 S.E.2d 584 (Ga. 1987) (“[Applying] neutral principles of property law . . . . we look to the provisions of the deeds that conveyed the two properties involved to the local church”); Bjorkman v. Protestant Episcopal Church (Ky. 1988) 759 S.W.2d 583, 586 (“[T]he application of neutral principles appears to be preferable to compulsory deference since in every case, regardless of the facts, compulsory deference would result in the triumph of the hierarchical organization”). (For more references, see the Research Note below.)

Older cases in other states have given lip service to "neutral principles" while deferring nevertheless to the church's canons. (E.g., Bishop & Diocese of Colorado v. Mote, 716 P.2d 85 (Colo. 1986).) Where a denomination's rules trump neutral laws, it is specious to speak of "neutral principles"; this approach simply pours the new wine into the old bottles. In the words of one California case: “Although the hierarchical theory has supposedly been rejected in California, it will nevertheless live on under the label of ‘neutral principles of law,’ if a church’s own rules are viewed as trumping state statutes.” (California-Nevada Annual Conf. v. St. Luke’s United Methodist Church, 121 Cal.App.4th 757, 771 (2004).)

The one principle that can be derived from the decisions on the Dennis Canon thus far is that if a court is correctly applying the "neutral principles" approach, the Dennis Canon is just one more factor in the mix of those considered when the court examines the original and any subsequent deeds, the church's charter, and so forth. And in some states, a statutory factor dominates. For example, New York courts have professed to follow "neutral principles," but thus far most of that State's decisions have been against the departing parish, and in favor of the diocese. But note: in New York, there is an express statute (Religious Corporations Law § 42-a) which recognizes the validity of the "trust" established by the Dennis Canon. (No one appears yet to have successfully challenged the statute on the ground that it violates the First Amendment by "establishing" a particular Church---The Episcopal Church---by giving its canons statutory effect, in preference to those of any other church. The same problem exists in Connecticut.) But in California, which has no such statute, the Courts of Appeal which have followed "neutral principles of law" in church property disputes have thus far declined to give any effect to the Dennis Canon, on the grounds that in California, at least, a valid trust requires the consent of the property owner as settlor, or alternatively, that if any trust was created by the enactment of the Canon, it is revocable by the property owner at any time. (The decision that is currently on appeal to the California Supreme Court rejected that "neutral principles" approach in favor of the older hierarchical doctrine.) 

[RESEARCH NOTE: For a further discussion of the current status and applicability of the neutral principles approach, see the reply brief filed on behalf of the breakaway churches in the California Supreme Court here. That brief also references some helpful annotations covering the subject, e.g., Determination of Property Rights Between Local Church and Present Church Body: the Modern View, 52 A.L.R. 3d 324 (2008); and Jeffrey B. Hassler, Note: "A Multitude of Sins? Constitutional Standards for Legal Resolution of Church Property Disputes in a Time of Escalating Intradenominational Strife" (2008) 35 Pepp.L.Rev. 399, 457-63 (Alabama, Georgia, Kentucky, Minnesota, New Hampshire, New York, Ohio, and South Dakota all follow a pure neutral principles approach; at least eleven other states have generally adopted a neutral principles approach; and thirteen others have not addressed the question). Those with a subscription to Westlaw or Lexis can also download this very interesting survey of the question.]

Thus for the case in Virginia, much will depend at the trial level on how Judge Bellows reads Jones v. Wolf, and how he decides to apply its "neutral principles of law" approach. Under the reading followed by the New Hampshire and other recent courts, the Virginia Division Statute will supply the express neutral "majoritarian rule" that the Supreme Court missed in the Georgia case. It can be followed and applied without violating the First Amendment so long as its application does not require the court to resolve any doctrinal or hierarchical disputes within TEC or the Diocese. And indeed, much of Judge Bellows' April 3 decision already points the way to such a neutral application that avoids deciding religious questions.

[UPDATE 06/27/2008: Judge Bellows has issued his opinion upholding the constitutionality of the Division Statute. The ruling leaves only for decision whether the Statute "impairs the obligation of contracts" in violation of the Contracts Clause in the United States Constitution. (The particular question to resolve will be whether any of the contractual relationships between TEC or the Diocese and its parishes, as established by church deeds, trust documents, charters, etc. and their respective constitutions and canons, were impermissibly "impaired" by the application of the Division Statute to the property ownership question---that is, whether the Statute unfairly alters such relationships in a way that is different from the effect that statutes of general application on a subject of important public interest have as a matter of course. See a discussion of the three-part test that the courts apply here. Of course, TEC and the Diocese will first have to prove that such binding trust relationships exist, i.e., that they were "embodied in some legally cognizable form", before they can proceed to claim that they are impermissibly "impaired" by the Statute.) In a separate letter ruling on five questions addressed to the litigants by the court, Judge Bellows spells out that if he finds no impairment of contracts, and if his review of the petitions filed by the eleven Virginia parishes finds that the votes conducted under the terms of the Division Statute were proper, then the actions brought by the Diocese of Virginia and The Episcopal Church to have the properties declared as held in trust for them will be moot---i.e., the case will be over (at the trial level). Judge Bellows' decision tracks the constitutional analysis of Jones v. Wolf as indicated above, and is remarkable for the patience and restraint it evinces in the face of what can only be termed outlandish arguments (bordering sometimes on sarcasm) put forward by the attorneys for TEC and the Diocese (a sample of which I quoted earlier). It would appear that TEC's strategy is simply to play out the lawsuits until the final judgments can be appealed---through the courts of Virginia and all the way to the United States Supreme Court, if it will agree to grant certiorari). By the time of any such appeal, TEC will hope to plug some of the leaks in the dike by means of canonical changes at GC 2009; the remaining leaks will not be stopped until constitutional changes adopted at GC 2009 can be ratified at GC 2012.  By that time, TEC will be a significantly reduced church, and the Diocese of Virginia, if it tags blindly along under TEC's leadership, will be a much reduced Diocese, as fewer and fewer parishes decide to support the litigation.]

Even if Judge Bellows decides that the Virginia Division Statute can be constitutionally applied to the facts of the case, he will still have to look at all of the evidence concerning the various churches' deeds, corporate charters, bylaws, canons and transactions that have occurred over the years in order to arrive at a final determination of who owns the property. No doubt, too, the loser of that decision will appeal it. We thus are in for a long haul yet, in both Virginia and California (where oral argument in the Supreme Court is yet to be scheduled). And then that will be just two out of the 100 Episcopal dioceses in America . . . .

As I noted in an earlier post, "plus ça change, plus c'est la même chose" ("The more things change, the more they stay the same"). Here, taken from another article about Church property disputes, is an apt illustration of that maxim by an anonymous Episcopal wit:

. . . The Church of England was established when the unhappily married Henry VIII wanted to marry a nubile minx named Anne Boleyn. With the advice of Archbishop Thomas Cranmer, Henry realized that starting his own church would give him the power to end his marriage—and would simultaneously make him the owner of the Roman church's wealthy abbeys and monasteries and the land they sat on in England.

"The church got started on a sexual issue, a property issue, and an authority issue," commented one weary rector. "Five hundred years later, we're arguing about sex, we're arguing about property, and we're arguing about who's in control."

Of Bishops and Boundaries

The mistaken belief that "the ancient councils of the Church forbade Bishops from invading each other's territories" has been laid well to rest (and see also this post). The appeals to ancient norms, however, are persistent. Sometimes, the appeal is simply to current "protocol", or to "the spirit and the letter of the Windsor Report" (which also erroneously cited to the Council of Nicaea, as explained in the first link). It is granted that TEC's own Constitution (Art. II, Sec. 3) limits a Bishop to exercising authority only in his or her own diocese, and that it has so provided since it was first adopted in 1789. What is to be said about the numerous instances in which former Episcopal congregations and clergy (and now even a diocese, with others perhaps to follow) have placed themselves under the jurisdiction of bishops in other Anglican provinces?

The first thing to note is that the phenomenon is largely, if not exclusively, confined to the provinces of The Episcopal Church and of the Anglican Church of Canada. That in itself says a great deal. Can it be just a coincidence that the boundary crossings are occurring in just the two churches in the Anglican Communion which have officially refused to abide by the resolutions made by all the bishops of the Communion meeting at Lambeth? Let's take a closer look.

It is inadequate to explain that TEC and the ACoC have rejected the recommendations made in Resolution 1.10 passed at the 1998 Lambeth Conference. Implicit in their rejections, and in their refusals to retract those rejections, is a statement about their respective polities. I do not think I could improve on this analysis by "AKMA", who (looking at the Statement issued by TEC's House of Bishops in March 2007) I think has it exactly right:

What might be wrong with our polity? It looks to me as though the Episcopal Church (on both “sides”) tends to regard bishops as though they were state governors — “our elected officials.” That neglects the two aspects of a bishop’s vocation that look most important to me: the bishop’s role as a teacher, and the bishop’s role as the point where the local church (the diocese) interacts with the church catholic. On that basis, churches in Iran really do have a stake in whom the Diocese of Chicago elects as bishop; a bishop who can’t function as a liaison (either because the world refuses them, or their home diocese does) can’t fulfill a constitutive aspect of the bishop’s role. The Episcopal Church tacitly recognizes this through its assent process, and (ironically) just exercised the prerogative to not accept a bishop’s election on the grounds that not enough dioceses felt they could rely on that candidate to remain within the Episcopal Church. [Footnote omitted.] Though we do not ask every diocese around the globe to consent to each episcopal election, the principle is the same: A bishop belongs both to the diocese and to the church catholic, and both need to accept the bishop in order to maintain sound polity.

So when the House of Bishops asserts that “the meaning of the Preamble to the Constitution of The Episcopal Church is determined solely by the General Convention of The Episcopal Church,” or that we have no intention of leaving the Anglican Communion but that our polity does not permit arrangements such as the Primates requested, they’re begging the question. It’s the polity itself that has come into focus as the problem. The Primates want a polity in which our bishops stand more fully accountable to the world church, because (on this interpretation) that’s part of their job description; and the Episcopal Church says, “You can’t exclude us because that’s not the way we do things.” The US position looks an awful lot like an assimilation of ecclesiastical roles to local civic models: the U.S. bishops should lobby on behalf of the citizens they represent to bring home favorable policies (and if the governors of Utah and Mississippi, even the President of the U.S., don’t like the governor of Iowa, it’s tough luck because the Iowans voted for her). That’s not my understanding of how the members of the Body of Christ work together to build up and strengthen the whole.

Indeed, The Episcopal Church's leadership is, if I may be allowed to say it, preoccupied with concerns of civil rights and social justice that have a full and necessary place in our body politic, but which, ironically, detract from the function of a body religious. Bishops are more than elected governors, and are accountable to more things than just civil rights and social justice. Remember: "God owes us nothing" (to use the title of one of Leszek Kolakowski's books). One cannot speak of mortal sinners demanding civil rights or social justice from God. One's eligibility to be called to God's service does not hinge on whether one has been oppressed, or denied elementary civil rights by a society, so that it is now "one's turn" to assume the leadership role, just so that the Church may be said to be doing "new things."

The fallacy in bringing a civil rights point of view to matters of Church polity is not just that sinners have no "civil rights", but also that one cannot champion civil rights in a representative capacity. A Bishop represents his diocese to the church catholic, as the above quote observes. If that Bishop feels strongly about women's rights, or gay and lesbian rights, or both, or still other rights, he or she may march in all the demonstrations and parades, and even get arrested if civil disobedience is felt to be the only way to gain attention for the cause. But when a Bishop marches, or is arrested, he is placing his individual liberty on the line. (I shall switch to using a generic "he" at this point, because it is simply too cumbersome to keep repeating "he or she," "his or her," etc. Let the gender-neutral intent be understood.) As a Bishop of his Church, however, his authority does not extend to placing his Diocese on the line, because he only represents the Diocese; he is not the Diocese itself.

Indeed, civil disobedience makes sense only from an individual standpoint, as I noted in an earlier post. There is no admirable sacrifice of liberty, no example for others to follow, if you use your representative authority to get someone else to go to jail for you. And this has been the problem with how TEC (and the ACoC) have gone about advancing the cause of gay and lesbian "rights" within the Anglican Communion. (I place the word in quotes, remember, because it does not make sense to speak of demanding from God a "right" to be ordained, or to receive God's blessing on one's relationship.) They claim to have done so in order to "be a witness" to the "new things" which the Holy Spirit is doing in the Church---that is the language of (religious) civil rights demonstrators. In fact, the compulsion for former Presiding Bishop Griswold to be a witness was so great that he could leave the Primates' Meeting at Lambeth Palace in October 2003, having signed a statement that urged TEC not to go forward with the consecration of Bishop Robinson, and then officiate at the ceremony just seventeen days later; he left it to his deputies to justify his conduct to the Communion. And the compulsion of the current Presiding Bishop to brook no opposition to the social justice agenda was foreshadowed even before she was elected.

In order to send a signal that they were witnessing to the cause of gay and lesbian civil rights, the Bishops of TEC and ACoC did not just pronounce that Lambeth Resolution 1.10 was not going to be followed in their churches; TEC actually consecrated a Bishop who, it was warned in advance, would not be able to represent his diocese to the wider church, and who could not be invited to the gathering at Lambeth without making a mockery of the actions taken there. And asked to clarify its stance, the Anglican Church of Canada responded with an ambiguous authorization to hold rites for the blessing of same-sex unions. Each of these actions, be it noted, constituted official acts of the respective churches, performed and approved by their delegates in their representative capacities. No one's individual liberty was placed at risk by such Anglican disobedience; instead, what it called into question was the churches' willingness to remain as full partners in the Communion.

It is very difficult to remain impartial about the different sides of this dispute, because there is so much at stake once the disobedience went to a representative, as opposed to staying on an individual, level. Some devout Episcopalians, whose sincerity cannot be questioned (even though the other side will not credit it), believe (along with Lambeth 1.10) that participating in or approving the ordination of a non-celibate gay or lesbian to the ministry simply cannot be reconciled with Holy Scripture, and quite a number of these Episcopalians also believe that it concerns one's salvation. The other side believes just as sincerely that gays and lesbians have for too long been discriminated against by the powers of the Church, are determined to put an end to the discrimination they see, and think that what they are doing is strengthening, not weakening the Church. The problem is that by taking action in the name of the whole Church, the activists have made it impossible for those who disagree to remain neutral or indifferent. The reasserters (to use the neutral terminology now current) cannot accept what has been done, and what continues to be done, in their name. And for their part, the reappraisers are just as determined to continue with what they have started, and to do so in the name of the Church as a whole.

One of the predictable consequences of such an impasse is that the reasserters will seek to be led by Bishops and clergy whom they see as faithful to Holy Scripture, and will reject the leadership of those who are approving and performing gay and lesbian ordinations and blessings. The results are the withdrawals, the joining of other Anglican provinces, and the border crossings by Bishops. The reappraisers can insist all they want that parishes in a diocese are not free to pick and choose whom they will individually have as their Bishop, that the majority rules, and that once a Bishop has been elected and consecrated the entire diocese has to live with that choice, or accept whatever that Bishop offers as alternative oversight. But for reasons I have set out in this post, those parishes have decided that when they joined The Episcopal Church, they did not delegate to their representatives the authority to take steps that would make them no longer a part of the Communion, or that could affect their salvation. Those decisions belong to the parishioners and their ministers alone, and they are voting with both their wallets and their feet. (Moreover, for an instance of why "Delegated Episcopal Pastoral Oversight" [DEPO] as offered to reasserters is unacceptable, read carefully this link, especially pages 13-19.)

The anguish of having to decide whether to leave the Church is not being assuaged by the unsympathetic stance of the reappraisers toward those who are faced with the choice. From the Presiding Bishop on down, the attitude is: Leave if you must, but don't try to take any property with you, because our side has all the money in the world for lawyers who will plague you like locusts. Moreover, don't even ask if you can buy the property from us, because we won't sell it to you---we'd rather it went to a sleazy nightclub than to a parish "in competition" with us. So long as you try to remain part of the Anglican Communion without also being a part of TEC, we will depose your clergy and bishops so they can never minister in this Church again; we will not recognize those whom you ordain, we will hound whatever bishop takes you under his wing every time he tries to make a pastoral visit to you, and we will threaten to depose those in this Church who cooperate with foreign bishops. We will never recognize your affiliation, and if we can get the Archbishop of Canterbury to listen to us, he will not either. And don't try to blame us for forcing you to do this: you and your rigid and antiquated readings of Scripture are what is causing this to happen.

The position of TEC towards those who leave it borders on violating their First Amendment freedom to associate, as I noted here. If TEC had its way in the courts, it would be illegal for a parish within its geographical territory to join another province of the Anglican Communion, let alone a newly formed province in America itself (which would require the assent of the Primates and the Anglican Consultative Council). As the link just given explains, the Anglican Consultative Council gives consent to the creation of new provinces, not dioceses. With the latest news from the Province of the Southern Cone about amending its Constitution to allow it to include dioceses in North America, we may eventually see some kind of test in court of TEC's hard and fast position that no foreign dioceses can exist within its geographical territory. At this point, however, the issues are not well-defined for adjudication.

The Church has split before over matters seen as involving salvation, and it has never been accomplished without trials and tribulations on both sides. There is little hope of reconciling the two groups, given the current stances, for the reasons just given: one is acting out of conviction born from faith in Scripture, while the other is acting out of conviction born from faith in human dignity and social justice. What I hope the reappraisers will come to see is that the departures and the "incursions" are the inevitable consequences of presuming to decide questions at a Church level that were not theirs to decide (at least, not until the Communion as a whole was ready to do so). And what I hope the reasserters will come to see is that the early failures to object to the undermining of doctrine, and to the post-modernizing of the Church, served only to postpone the difficult decisions they now must make today.

I shall close with a juxtaposition that is apt of two quotes on this subject. The first is the aforementioned Statement from the House of Bishops:

Other Anglican bishops, indeed including some Primates, have violated our provincial boundaries and caused great suffering and contributed immeasurably to our difficulties in solving our problems and in attempting to communicate for ourselves with our Anglican brothers and sisters. We have been repeatedly assured that boundary violations are inappropriate under the most ancient authorities and should cease. The Lambeth Conferences of 1988 and 1998 did so. The Windsor Report did so. The Dromantine Communiqué did so. None of these assurances has been heeded. The Dar es Salaam Communiqué affirms the principle that boundary violations are impermissible, but then sets conditions for ending those violations, conditions that are simply impossible for us to meet without calling a special meeting of our General Convention.

— A Statement from the House of Bishops of TEC – March 20, 2007

And the second quotation is from John Henry (later Cardinal) Newman (hat-tip: I'd Rather Not Say):

If unity lies in the Apostolical succession, an act of schism is from the nature of the case impossible; for as no one can reverse his parentage, so no Church can undo the fact that its clergy have come by lineal descent from the Apostles. Either there is no such sin as schism, or unity does not lie in the Episcopal form or in the Episcopal ordination. And this is felt by the controversialists of this day; who in consequence are obliged to invent a sin, and to consider, not division of Church from Church, but interference of Church with Church to be the sin of schism, as if local dioceses and bishops with restraint were more than ecclesiastical arrangements and by-laws of the Church, however sacred, while schism is a sin against her essence. Thus they strain out a gnat, and swallow a camel. Division is the schism, if schism there be, not interference. If interference is a sin, division which is the cause of it is greater; but where division is a duty, there can be no sin in interference.

—John Henry Newman, An Essay on the Development of Christian Doctrine, 1845

Can a Diocese Ever Leave the Church?

The question is often put as to whether a diocese can leave The Episcopal Church. It is the wrong question, in my opinion. It focuses on the concept of "diocese" as some kind of abstract, impersonal entity that acts on its own. A diocese is not a monolithic, autonomous object, but is a collection of people. Most of them are organized in law as unincorporated associations---which the law defines as "a group of two or more gathered by mutual consent in association for a common lawful purpose."

Because a diocese is simply a gathering together of people with a common purpose, it can happen that there will be a falling out---a disagreement over that common purpose. When that happens, the association will split up into two (or more) new groups. How does the law treat such splits?

All other things being equal, the law will recognize the larger of the two groups as the continuation of the entity that was the former association, and the smaller as a brand-new unincorporated association. But it may turn out that the larger group does not want to be seen as the continuation of the old association. It may choose, if it wants, to adopt a new name and articles of association, and the law will recognize it by its new name. In such a case, the smaller group could keep the old articles and claim to be the continuation of the old association---again, if it wanted to. If it also adopted a new name and articles, then the old association would simply go into limbo if there were no one to carry it on, and if no one saw to it that it was dissolved.

How does all this relate to The Episcopal Church? From what has been said, it should be apparent that as long as a diocese is an unincorporated association, the odds are high that there will always be some members of the old association who will want to carry on as the Episcopal diocese, while others may want to continue as an association that is a diocese within the Anglican Communion, but just not as an Episcopal diocese. So as has happened in San Joaquin, there will be two unincorporated associations, one of which can become the new "Episcopal Diocese of San Joaquin," and the other of which is now "the Anglican Diocese of San Joaquin." The accurate way to describe this result is not to say that "the Diocese of San Joaquin has left The Episcopal Church," but rather to say that "a number of people have left the Episcopal Diocese of San Joaquin and organized as the Anglican Diocese of San Joaquin, subject to the jurisdiction of the Province of the Southern Cone."

So far, so good. Now we come to the controversial part. Can a diocese constitutionally amend its articles so as to place itself outside the jurisdiction of The Episcopal Church, and under the jurisdiction of a different province of the Anglican Communion? And if it can, what happens to the diocesan property?

There is one school of thought that holds that by unwritten law and custom, as well as by analogy to the Union that is the United States of America, a diocese may not amend its articles so as to break off from The Episcopal Church. At the outset, this argument faces a conceptual disconnect with reality: as we have just seen, in almost any conceivable case (given that we are dealing, ultimately, with sovereign individuals), there will be an association of people that can remain as the unincorporated Episcopal Diocese in question. So what is to quarrel about? How about: property and money. The problem is that, before the split, there was an entity that held title to the diocesan property and bank accounts, and after the split, there are two (or even more) entities. So who ends up with the money and property?

If we ask the law again, it responds: the entity that held title to the property and bank accounts before, and which continues through the split to survive with its original "unincorporated shell" intact, is the one that the law recognizes as still having title to the assets. If the old organization is governed in all of its matters by majority vote, as is typical of most unincorporated associations, then the entity which continues to be governed by the majority of the members will be the one that the law recognizes as holding the assets.

Now I have to introduce another level of complexity here---my apologies, but accurate analysis requires it. Because of these very problems in determining successorship in the case of unincorporated associations, the law allows an unincorporated religious association in turn to authorize its duly designated religious leader to form what is called a "corporation sole". The creation is given this name because it is a unique form of corporation under State law: it has a single shareholder, a single director, and a single officer, who are one and the same person: the religious leader whom the association has authorized to file the papers for a corporation sole. The purpose of the corporation sole is to allow title to the diocesan assets to be held in the name of an entity in corporate form, because corporations have the characteristic of perpetual existence: if their sole shareholder/director/officer dies or is otherwise replaced, the newly designated leader simply steps into the place of the old, and the corporation continues as before. Once again, however, the process by which that leader is designated must be spelled out in the articles of the corporation sole, and the new leader must have the authorization of the religious unincorporated association to file the papers which make him (or her) the incumbent of the corporation sole.

Thus, by virtue of this statutory scheme, it has come about that most dioceses are unincorporated associations, which have authorized their Bishop to form a corporation sole to hold title to all of the diocesan property. Now you can appreciate the level of complexity that has been introduced: what happens to the corporation sole if the underlying religious association, that authorizes its successorship, splits up?

As you might imagine, the majority rule again prevails at secular law. If the larger group maintains the unincorporated entity that was the former diocese, then (all else being equal) that entity continues to govern the authorization of the corporation sole, as it did before the split. Under these circumstances, there is tremendous pressure on the minority group to claim the mantle of the legitimate successor to the prior association. And in the case of a religious association, the way to do so is to claim that the changes made by the majority group were not authorized by the governing principles of the particular religious group. So we have to address the question: is it unconstitutional, or uncanonical, for a formerly Episcopal diocese so to amend its constitution and canons as to place itself outside the jurisdiction of the Episcopal Church?

Those who would argue this question in the affirmative face significant difficulties under both secular and Episcopal law. In the first place, the secular law places great stock by written constitutions and articles, as opposed to unwritten law and custom. The reason is that when the rules are written out in advance for all to agree with before they join the organization, it is much easier to argue that by joining the organization, the members consented to abide by its written rules. It is much more difficult to make the case that by joining an organization where the rules are unwritten, a member had to know what they were anyway, and so gave consent to them by the act of joining. Unwritten laws have a way of being drafted or revised as needed to fit the facts; someone can always be counted on to testify: "That's the way we've always done it, during all my years in this organization."

In contrast, what we have in the case of San Joaquin is an unincorporated association with a written constitution and canons that each specified the procedures that were required in order to amend them. There were no limitations on the nature of the amendments that could be made. Furthermore, all of the procedures were precisely followed in adopting the amendments: the constitutional amendments were passed at two successive annual conventions, as the constitution required, and the amendments to canons were also passed by the required majorities of clergy and laity at an annual convention at which a quorum was present. California law provides: "If an unincorporated association's governing principles do not provide a procedure to amend the association's governing documents, the governing documents may be amended by a vote of the members." (Corp. Code section 18340.) Here those "governing principles" did provide a procedure for their amendment by the members, and the procedure was followed, so California law was satisfied.

If one next turns to the Constitution and Canons of The Episcopal Church, one searches in vain for a written provision that puts any kind of limitation on the kinds of reorganizational amendments a diocese may make to its own constitution and canons. To be sure, there are some provisions that specify details about the election and consecration of a Bishop (Art. II, sec. 2), the number of Bishops Suffragan it may elect (sec. 4), and the resignation of Bishops (secs. 6 and 9); there is a requirement that every diocese elect a Standing Committee (Art. IV), and that every diocese use the Book of Common Prayer (Art. X). But the only provision dealing with the membership of dioceses in the Church itself is this one, from Art. V, sec. 1 (see also Canon I.10.4, to the same effect):

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.

This prescribes the terms on which a diocese shall be admitted, but says nothing about the terms on which it it may leave, unless something to that effect can be inferred from the words "unqualified accession." They mean, as used in this context, the act of "consenting or agreeing without reservation", and thus imply a voluntary choice made to enter into an arrangement. (In the law, there can be no binding contract in the absence of voluntary consent. And if one party breaches the contract, the other does not need the consent of the breacher to withdraw from the contract.) Consent once given, being voluntary, may just as voluntarily be withdrawn if the other side fails to hold up their end of the bargain---mutual honoring of the agreement by each party is the quid pro quo for staying in it. This is also the law of international treaties between independent and sovereign states: when a state signs a treaty, it "accedes" to it, and it has always been understood that the accession lasts only as long as the state wants it to, i.e., a state may chose to withdraw its accession to the treaty at any time, and for any or for no reason whatever, since the state is sovereign, and beholden to no other state. Even if there were specific language forbidding deaccession, it could not be enforced once one side committed a breach of the agreement. So the language issue turns out to be a red herring, although that fact has not quelled the debate.

Father Tobias Haller argues, for example, based on his predilection to find "unwritten TEC law", that it would be "absurd to suggest that a unilateral vote, even by a majority of the members, can permit a diocese of TEC to declare itself independent absent the consent of the General Convention." This argument shows a misunderstanding both of the legal positions and of the kinds of entities involved. General Convention is a creation of the dioceses that join it, and not vice versa: General Convention has no power to create a diocese, but only to consent to its union with one. Dioceses are thus independent entities who owe their existence in the law not to General Convention, but to the people who decide to form them, who in turn agree to be governed by majority decision (or in most cases, by the decision of a vote "by orders", which does not change the underlying point). What the majority of each order in San Joaquin claims the right to do, and what each did, was to vote to amend their own diocesan constitution, which they are fully entitled to do as a matter of California law. This vote was an integral part of the process by which an unincorporated association comes apart when there has been a series of actions by the parent church that gives rise to dissension and disagreement. What would be absurd would be to hold, for example, that no matter what actions General Convention may take---even if it voted, say, to adopt mandatory rites for same-sex marriages throughout the Church---the majority members of the diocese of San Joaquin could not vote to change their affiliation without the consent of General Convention. No constitutional or canonical language of TEC so provides, and the secular law would not enforce it if there were such language. 

(Fr. Haller's analogy to the Union of the States also misses the mark, for several reasons [and for still another reason, see this link]: (1) In the first place, the principle that no State could secede was not established by interpretation of the Constitution, but only after the fighting of the most costly and bitter war in the nation's history. In other words, there was no unwritten law about the impossibility of seceding until after a war had been fought to establish it; the case which Fr. Haller relies on was decided after the Civil War. And during the Civil War, (2) the southern dioceses of the Church uniformly amended their constitutions so as to "deaccede" from General Convention, and voluntarily amended them again afterward so as to accede once more. A third reason the analogy fails is (3) that a diocese, as we have seen, is usually an unincorporated association (the complaint filed in San Joaquin alleges that TEC itself is one), and so is just a grouping of people under the law that will hold together only so long as there are sufficient people to keep it up. A State, on the other hand, is a sovereign entity in its own right, and as we know, thirteen of them existed on their own before there ever was a United States. Dioceses do have to exist in the law, with their own constitution and canons, before the church can recognize them, and before General Convention can come into union with them, but they owe their legal existence to the jurisdiction of the State in which they are located. States do not owe their legal existence to the Union, or to any other State; they have an independent existence which continues apart from their role in the Union or their relationship with other States. Thus Father Haller's analogy between the Church and the Union fails mainly because, as we have seen, even after there has been a split, there remains a group that can come together as an association and continue as the diocese of the Church. As a practical matter, therefore, no Episcopal diocese "withdraws" from the Church. The quarrel is rather, as just noted, over who has title to the assets.)

The second difficulty with the unwritten law position is that it needs a demonstration of consistent prior acts to prove how such situations were governed in the past. And there again, because of what happened during the Civil War, The Episcopal Church cannot point to a precedent for what it contends is the unwritten law today; what precedents exist cut the other way.

But the fatal objection to the current argument that "dioceses cannot leave the Church; only people can" is the statement itself: it recognizes the right of people to choose to leave The Episcopal Church. And if people can leave, they can also choose to group in an unincorporated association that has allegiance to a different province of the Anglican Communion. So what the current Church leadership is really trying to say, in an effort to maintain its right to the diocesan property, is this:

No group of Episcopalians within the given geographic territory of an Episcopal diocese is free to amend the diocesan articles to reorganize into an association that purports to be a diocese of another branch of the Anglican Communion.

Looked at in this light, this is truly a remarkable claim. "Freedom of association" is one of the rights guaranteed to all by the First Amendment, yet The Episcopal Church is trying to say it does not apply inside any of its dioceses. That is, no doubt it would concede that Bishop Schofield and his followers are free to abandon the unincorporated association and its corporation sole to the minority, and to organize a new unincorporated association and a related corporation sole that has no right to keep any of the former association's assets, but (it contends) they cannot lawfully amend the existing constitution and canons to eliminate the accession clause and change the name of the corporation sole.

Such a limitation on the freedom to associate---in the absence of any language to that effect in either the diocesan or the national constitutions---would be unprecedented in the law. (Remember, the so-called "Dennis Canon", which attempts to impose a trust in TEC's favor on all parish property, is silent about the property that belongs to dioceses.) The constitutionally required deference to a "hierarchical church" is not implicated here, because there is no language in the governing instruments to which deference could be required. Instead, under the "neutral principles" approach, state law was unquestionably followed in making the amendments, and they consequently were, and are, fully valid under state law.

Until I see different and better arguments on the side of TEC, this is how I expect the current California legal dispute in San Joaquin to play itself out. So: can a diocese leave the Church? In practice, it never does, but in legal reality, just watch it happen in San Joaquin, and in Ft. Worth, and in Pittsburgh, and in Quincy, and in . . . (to be continued, if TEC stays on its current course). 

But can a majority within that diocese decide to affiliate with a different church, without the consent of TEC? They not only can, but have lawfully done so.

  

Who Will Stand Up for What Is Right?

The matters discussed in this post will seem utterly fantastical to some and overly technical, or even irrelevant and incomprehensible, to others. I place this warning at the outset to save either group from having to struggle through what follows. But if you are one of those who is increasingly concerned by the lack of accountability on the part of the leadership of The Episcopal Church, then by all means read on. If you agree with the conclusions I draw, I would ask that you forward a copy of (or a link to) this post to your diocesan Bishop. And if you are one of the very few in a position actually to do something, it is my prayer that you will take what I say here to heart.

The recent publication of a memorandum analyzing the serious violations of the Constitution and Canons of The Episcopal Church (and of the Diocese of San Joaquin!) by Presiding Bishop Katharine Jefferts Schori, and the report of a simultaneous sabotage of the site where it was originally published, following denouncements of its motives and demands by TEC loyalists for the name(s) of the memorandum's author(s), have significantly raised the procedural ante within The Episcopal Church.

On the one side we have the Presiding Bishop and her Chancellor, along with her Title IV Review Committee, who have charged the Rt. Rev. Robert Duncan of Pittsburgh with having "abandoned the Communion of this Church" in supposed violation of Canon IV.9. (For a full analysis of why such charges against a Bishop like +Duncan, who has no intention of leaving the Anglican Communion, constitute an abuse of this Canon, see my earlier posts here and here.) Despite the fact that the three senior bishops of the Church refused to agree to the inhibition of Bishop Duncan, the Presiding Bishop has continued to say that she intends to bring a resolution before the House of Bishops at its next meeting to vote on his deposition.

On the other side we have the canon lawyers, who (with the exception of the Presiding Bishop's Chancellor David Booth Beers and his firm) have been unanimous in their opinion that Canon IV.9 cannot be read to allow a vote to depose a Bishop who has not first been inhibited. This result follows from the plain language of the Canon itself:

If a Bishop abandons the communion of this Church . . . it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop . . . The Presiding Bishop, with the consent of the three seniorBishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. . . .

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false . . . the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement [is in good faith], . . . the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, [shall] terminate the Inhibition. Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

I have added the bolding in order to show the requirements of the Canon (i) that only a Bishop who has first been inhibited is "liable to Deposition"; (ii) that the inhibition is terminated if the inhibited Bishop makes a satisfactory statement of denial; and (iii) that otherwise, the Presiding Bishop brings the question of deposing the inhibited Bishop to the House for a vote. As the Memorandum referenced above argues, it makes nonsense of the Canon to argue that the sentence beginning "Otherwise . . ." applies to Bishops who have not been inhibited, because then the Canon would lack any provision for voting on a Bishop who has been inhibited.

I say "the canon lawyers have been unanimous" that Canon IV.9 must be so read, because every lawyer's opinion I have seen on the Web reads it that way, while I have yet to read a single legal opinion, signed or otherwise, either on the Web, or published elsewhere, that defends the Presiding Bishop's reading of the Canon (with the exception of her own recent letter to the House of Bishops, which was presumably written by, or with the help of, her Chancellor, but which she alone signed). There have been some differing opinions about the requirement in the Canon that a vote to depose be approved "by a majority of the whole number of the Bishops entitled to vote", but there has not been a single dissenting view expressed , with reasons and logic to back it up, that the Presiding Bishop is justified by the Canon in proceeding as she proposes to do.

The Presiding Bishop appears impervious to an argument based on the plain language of the Canon. As her letter to the House of Bishops indicates, her reading of it is entirely "concept-driven":

These [three senior] bishops who must consent to the temporary inhibition do not, however, have a veto over consideration of the merits of the deposition by the House of Bishops, any more than those who must consent to temporary inhibitions in other circumstances have a veto over consideration of the charges by a trial court.

In other words, the Presiding Bishop sees herself as both chief prosecutor and chief judge, and the refusal of the three senior bishops to go along with her program will not prevent its execution one whit: the language of the Canon to the contrary means not a thing in the face of what the Canon obviously intends conceptually.

This is truly a remarkable impasse. We have the Presiding Bishop of the Episcopal Church announcing for months that she intends to take a manifestly uncanonical act---and while many lay persons in the blogosphere are speaking out against its legality, the vast majority of the clergy in the Church is acting as though nothing is wrong. Indeed, the silence from the House of Bishops (with the exception of Bishop Duncan himself) is deafening. It will be the purpose of this post to show how the Canons themselves could be used (nay, perhaps are being used now, without our knowledge) to bring a halt to this unlawfulness. They can be used at once, if the courage exists to apply them. The mechanisms are in place. Will any of the Bishops use them? Will any of them have the simple Christian courage to stand up for what is right, and do it?

The first thing to note is that the Presiding Bishop must step aside in any case in which she is a Respondent, that is, in which she has to answer to someone else's charges. (Canon IV.3.49.) The same Canon provides that the presiding officer of the House of Bishops takes over her role in any such matter, and if the presiding officer cannot so serve, the Secretary of the House of Bishops shall assume the role. The presiding officer (Vice President) of the House of Bishops is the retired Rt. Rev. Richard S. O. Chang, until 2007 the diocesan of Hawaii, whose term runs until General Convention 2009; the Secretary is the Rt. Rev. Kenneth Price, Bishop Suffragan of Southern Ohio (toggle the link to page 2). In a case involving the Presiding Bishop, Bishop Chang would have to decide if he could act, and if not, the decisions would fall to Bishop Price.

Functioning in the role of the Presiding Bishop for such a case, either Bishop alone would have the power to act on the information at hand, without waiting for anything else to happen. Canon IV.3.23 (b) provides:

Whenever the Presiding Bishop has sufficient reason to believe that any Bishop has committed an Offense and the interests and good order and discipline of the Church require investigation by the Review Committee, the Presiding Bishop shall concisely and clearly inform the Review Committee in writing as to the nature and facts surrounding each alleged Offense but without judgment or comment upon the allegations, and the Review Committee shall proceed as if a Charge had been filed.

Thus whoever substituted for the Presiding Bishop in this case would have the power to proceed without waiting for charges to be filed, as provided in Canon IV.3.23(a), by the required three bishops, or by at least ten clergy and laity (of whom at least seven---one priest and six lay persons---would have to be from the Diocese of Nevada, where the Presiding Bishop is still canonically resident). Moreover, to stop the unlawful proceeding against Bishop Duncan in its tracks, Bishop Chang (or Bishop Price, if in his stead) could issue a temporary inhibition against the Presiding Bishop forbidding her to introduce the resolution, if they felt that she could not be stopped from proceeding otherwise. Canon IV.1.5(a) provides:

If a Bishop is charged with an Offense or Offenses or serious acts are complained of to the Presiding Bishop that would constitute the grounds for a Charge of an Offense and, in the opinion of the Presiding Bishop, the Charge or complaint of serious acts is supported by sufficient facts, the Presiding Bishop may issue a Temporary Inhibition. The consent of a majority of All the Members of the Standing Committee is required for Bishops with jurisdiction.

The last sentence does not have any application to a case involving the Presiding Bishop, who is not a bishop with jurisdiction over any Diocese with a Standing Committee. (The Presiding Bishop does have jurisdiction over the Convocation of Anglican Churches in Europe, but that is not a Diocese, and it has no Standing Committee.) Thus the temporary inhibition, which Canon IV.1.5(c) says may be issued "without prior notice" to the Bishop involved, and which Canon IV.1.7 says "shall be used sparingly and limited to preventing immediate and irreparable harm to individuals or to the good order of the Church," could in this instance be issued by the acting Presiding Bishop alone. Because the bringing of Bishop Duncan before the House without consent having first been obtained to his inhibition would be an extraordinary violation of the Canons on its own, there is a good argument to be made that the high standard of Canon IV.1.7 could be met in this case---especially since the Presiding Bishop appears to have lowered the bar for such inhibitions by her own temporary inhibition of the elderly Bishop MacBurney, retired diocesan of the Diocese of Quincy, in Illinois, whom she at first thoughtlessly prohibited from taking any clerical role at his own son's funeral.

If this scenario sounds beyond belief, it simply illustrates the degree to which the Presiding Bishop's conduct in this matter is unprecedented, and dangerous for the future polity of the Church. Extraordinary dangers call for extraordinary countermeasures. If Bishops can be deposed by a simple majority vote of those present, and without first being inhibited (as the Presiding Bishop claims was proper in the case of Bishop Cox), then no member of the House of Bishops can feel safe. Today it is the orthodox Anglican wing of the House who are on the block, but once a precedent has been set, it could be used against the liberal wing in the future. Once the rules have been chucked overboard, as Robespierre learned in the French Revolution, no safeguards remain to protect those who advocated their abandonment.

No doubt the matter would not have to go beyond a temporary inhibition, and the Presiding Bishop, caught perhaps by surprise, would come to realize the error of her ways. But if she protested the inhibition to the Title IV Review Committee, as allowed by Canon IV.1.5(d), all of the members of that Committee would have to recuse themselves under Canon IV.14.13, because of their participation in issuing the charges against Bishop Duncan, and also because Bishop Jefferts Schori's letter to the House of Bishops discloses that she has consulted the members of the Review Committee on the propriety of her actions, and they apparently confirmed her improper reading of the Canon. Thus they cannot be impartial, and would have to recuse themselves. Bishop Chang (or Bishop Price) would have to select five Bishops to serve as replacements on the Committee. Because of the role that she played in supporting the Presiding Bishop's uncanonical actions in San Joaquin, Bonnie Anderson of the House of Deputies would probably also have to recuse herself from participating, and her Vice President, the Rev. Brian Prior, of Spokane, would select two priests and two lay persons to make up the nine members of the Committee. It would take a two-thirds majority of the Committee, or six votes, to dissolve or modify the temporary inhibition (Canon IV.1.5 (d)).

Meanwhile, the same substitute Review Committee would have sixty days to meet and consider the charges against the Presiding Bishop under Canon IV.3.40. If it decided to go forward (that is, if the Presiding Bishop was still maintaining she was right), it would transmit its version of the charges to the Church Attorney under the Canons, who is Larry White, Esq. of Philadelphia. (However, since he is handling the proceedings against Bishop MacBurney on behalf of the Presiding Bishop, he might also have to recuse himself. It should also be noted that the Presiding Bishop's Chancellor is excluded from acting for the Review Committee by Canon IV.14.18.)

The Church Attorney in turn has 120 days in which to investigate and to report back to the Review Committee; then the Review Committee has a further 45 days in which to weigh his report and decide whether to go forward with a presentment (Canons IV.3.42 and IV.3.43). (In this work, the Review Committee would be assisted by up to three additional church attorneys whom it could appoint as Lay Assessors under Canon IV.3.35. A "Lay Assessor" is defined in Canon IV.15 as "a duly licensed attorney to advise in matters of law, procedure and evidence affecting a Court or Review Committee in its proceedings.") If it does vote to go forward, it is only then that the charges (in the form of a formal presentment) would be made public: up until that point, Canon IV.3.38 requires that all proceedings be kept confidential.

Thus Bishop Chang (or in his place, Bishop Price) could act in complete confidentiality throughout these entire proceedings I have described; if the Presiding Bishop backed down from her plans to have Bishop Duncan deposed, then the proceedings could be quietly dropped, and no one outside of those involved in the House of Bishops and on the Review Committee would ever know what had taken place. (By the same token, charges brought against the Presiding Bishop by three or more bishops, or by ten or more clergy and laity, could now be pending, and the public would not know of it unless and until a presentment was approved.)

I have saved the most fantastical point of all for the last. Under a little-known Canon, the Presiding Bishop herself could be the instrument of her own correction. Canon IV.3.23 (c) provides:

A Bishop who shall have reason to believe that there are in circulation rumors, reports, or allegations affecting such Bishop's personal or official character, may, acting in conformity with the written advice and consent of any two Bishops of this Church, demand in writing of the Presiding Bishop that investigation of said rumors, reports, and allegations be made. It shall be the duty of the Presiding Bishop to cause the matter to be investigated and report the results to the requesting Bishop.

Under this Canon, Presiding Bishop Jefferts Schori could in full confidentiality request two of her colleagues to join her in writing to Bishop Chang (or to Bishop Price, if Bishop Chang recused himself) and in asking that the propriety of bringing the resolution to depose Bishop Duncan be formally investigated. The Canon does not say, but presumably the investigation could be carried out by the replacement Review Committee and by the replacement Church Attorney, as just described. This process would ensure the professional and outside opinions of at least four knowledgeable church attorneys on the proper interpretation of Canon IV.9, would be entirely confidential, and if the attorneys involved are selected impartially for their knowledge and skill in church law, I am confident in predicting that the Presiding Bishop's mistaken reading of the Canon would be refuted. And all this could happen with no loss of face, and no damage to the Presiding Bishop's prestige, since the whole affair would be kept confidential. [Update - 05/28/2008: For an example of another Bishop who recently availed himself of the procedure under Canon IV.3.23 (c), see this post.]

Of course, the Presiding Bishop is undoubtedly free to obtain a second (or a third, or a fourth) opinion on her reading from outside counsel at any time herself. She apparently believes she has done so, at least in the cases of "an attorney who is an original member of the [Title IV Review] Committee, the chancellors of several dioceses who have been consulted, and the former Chair of both the Standing Commission on the Constitution and Canons and the Legislative Committee on the Canons at the General Convention." She has not, however, produced a signed legal opinion from any of these persons she describes as having consulted. The process I am pointing out in this post would, unlike the apparently informal and verbal opinions which she solicited from acquaintances and colleagues, result in full and formal written legal opinions authored by independently hired church attorneys, who would not be beholden to Presiding Bishop Jefferts Schori for either their compensation or their thinking. If, as I predict, they read the Canon to prohibit its use for Bishop Duncan's deposition, the only persons who need find that out are Bishop Schori, Bishop Chang (or Price), and the replacement members of the Title IV Review Committee. The charges against Bishop Duncan would not be laid before the House in September, and the future of the Episcopal Church, while by no means rosy under its current leadership, would at least not be as grim as it looks now.

Remaking San Joaquin (Following the Canons-Pt III)

(Part I of this imagined Memorandum to a future Presiding Bishop is here; Part II is here.)

III. Remaking the Diocese of San Joaquin: a Canonical Proposal for Harmony

Given the background that is in Part I of this Memorandum, and the analysis that is in Part II, the way forward to reconstitute the Diocese of San Joaquin according to the Constitution and Canons of The Episcopal Church is clear. Recall that the Diocese has always been an unincorporated association, and that such an entity is simply a gathering together of like-minded people for a common purpose. The group known as Remain Episcopal can therefore be fully accommodated as a Diocese, along with the other parishes, missions and individuals who did not join or participate in the irregular convention held on March 29 (because of its irregularity). All that is required of them is that they agree they want to continue as the Diocese of San Joaquin in Province VIII of The Episcopal Church, and go through the proper procedures to do so.

(Your predecessor required that would-be participants in the March 29 convention sign an "oath of conformity" to the Church as a condition of participation. This was a condition without precedent in the annals of the Church, and should not be made into one for the future. The open nature of an association means that its members are free to join it and to leave it as they see fit.)

A Diocese should have a Bishop, and a Bishop can be elected only at a properly noticed diocesan Convention. Under Article V of the diocesan Constitution, a Convention must be called by the Ecclesiastical Authority of the Diocese. In the absence of a Bishop, Article III provides that the Standing Committee of the Diocese is the Ecclesiastical Authority. Thus it is necessary first to consider the canonical status of Bishop John-David Schofield.

As noted in Part I, Bishop Schofield sent in a letter that resigned his seat in the House of Bishops, but did not resign his jurisdiction as Bishop of the Diocese of San Joaquin. (He could not do that without jeopardizing his authority to lead the unincorporated association of which he had been made the Bishop in 1988.) He has since left with those members of the former Diocese who submitted to the jurisdiction of the Southern Cone. As explained in Part II, that group is an unincorporated association in its own right, but which The Episcopal Church cannot recognize as a Diocese in accordance with its Constitution. Thus, given that The Episcopal Church lost its lawsuit to declare that the changes voted in December 2007 were illegal, and because Article II, Section 6 of its Constitution requires the consent of the House of Bishops for a Bishop to resign jurisdiction, we have a clash between canon law of the Church and the secular law of California. Under the former, Bishop Schofield is still the Ecclesiastical Authority of the Diocese because the House of Bishops declined to accept his resignation, and its purported deposition of him was invalid---indeed, the vote to depose him failed for want of a sufficient majority. But under the latter law, he is no longer the head of an entity which The Episcopal Church can recognize as one of its dioceses. Thus it will first be necessary to organize properly a new unincorporated entity that can serve as the Episcopal Diocese of San Joaquin within The Episcopal Church. (The entity that met in March was not called in accordance with its own proclaimed Constitution, and so its proceedings were null and void.)

What should happen now is that a new gathering of those wishing to remain in the Episcopal Church should be called, with proper notice. (The notice could be given by the former Standing Committee, but in the end it will not matter, since the point of this gathering will be to form a new diocese, with its own new Standing Committee.) At the meeting, the group will formally adopt a Constitution and canons for the diocese, which can be modeled on the old ones. And it will elect a new Standing Committee, which thereupon will become the Ecclesiastical Authority of the Diocese until a Bishop can be elected. Then it can submit its application to be the Diocese of San Joaquin, along with its accession to TEC's Constitution, to General Convention 2009. (It will also be necessary for GC 2009 to enact a clarifying amendment to Canon I.11.3, because the language of that provision as it now stands would make it literally impossible to organize a new diocese in a territory where there had previously been a diocese, as in San Joaquin. Also, because of Article VI, Sec. 1 of the Constitution, it is not possible to organize the Remain Episcopal group as a Missionary Area while TEC considers itself in communion with the other provinces of the Anglican Communion, but only as a full diocese on its own. If it cannot sustain itself, it will have to be absorbed into one of the neighboring dioceses.) Upon the acceptance of the application and the adoption of appropriate changes to the Canons, The Episcopal Church will again have a Diocese of San Joaquin that is both canonically proper and duly recognized under California law.

The Episcopal Church will still need to find a way canonically to remove Bishop Schofield from its rolls. Your predecessor, and the Title IV Review Committee which reported to her, were frankly preoccupied with the mechanism for deposition provided by the "Abandonment of Communion" Canon (Canon IV.9). For reasons I have explained at length here and here, the use of this Canon to depose a Bishop who is leaving The Episcopal Church for another province of the Anglican Communion (as opposed to leaving for a church that is not in communion with The Episcopal Church) is improper, and ultimately self-defeating for TEC itself. The invocation of Canon IV.9 against Bishop Schofield served only to exacerbate the situation, and unduly prolonged its resolution, especially when the requisite number of votes could not be secured at the meeting of the House of Bishops which considered the resolution to depose.

I am confident from Bishop Schofield's public pronouncements that he has no desire to hinder or to impede those wishing to remain in The Episcopal Church from organizing themselves. That being the case, I recommend that we negotiate with his Chancellor the terms of a letter of resignation from any legal entity which this Church wishes to recognize as its own Diocese of San Joaquin. The letter would expressly provide that such resignation would be without prejudice to his right to continue as the Bishop of the Diocese of San Joaquin that is subject to the jurisdiction of the Southern Cone, and as incumbent of the corporation sole that bears the name "The Anglican Bishop of San Joaquin, a Corporation Sole." (When the court dismissed the lawsuit against Bishop Schofield and his Diocese, it ruled null and void the amendments to that corporation which had been filed by Bishop Lamb.)

Such a letter could be acted on by a majority of TEC's Bishops without the necessity of calling a meeting of the House of Bishops, under Canon III.22.3(b), and the way would then be cleared for the election of a successor under the Diocesan Canons, or (if the group wishes, after you consult with them) for the appointment of a Provisional Bishop under the terms of Canon III.23.1. Either of these alternatives would require the summoning of a Diocesan Convention, if the date of the next Annual Convention following General Convention 2009 is not close enough. Pending any such convention, the Standing Committee could invite in a visiting Bishop, pursuant to Canon III.23.2, to perform any necessary episcopal acts.

A final word about the property---the buildings, land and trust accounts that stayed with Bishop Schofield when he left. As noted in Part II, the court held that the Dennis Canon (Canon I.7.4 of TEC) applied only to the property of parishes and missions, and not to property held by dioceses. It was the policy of Bishop Schofield to allow any parish or mission remaining in The Episcopal Church to keep its property (so long as arrangements were made to pay off any debt owed to the diocese). Thus each of the parishes and missions that form part of the ongoing diocese already have their property as far as I am now aware, and I am certain that Bishop Schofield remains open to discussing amicably the particulars of any case that remains unresolved. The Episcopal Diocese now has property and accounts of its own in Stockton due to the generosity of the Church in funding it for the present, and with proper shepherding of those funds, and not having to expend them on further costly litigation, the Diocese should be viable.

END

Note by the Author: This exercise in imagination is wholly hypothetical, except for the facts given in Part I. Rather than having it turn out to predict the future course of the current litigation, the author hopes that those who read it, and who are in any position to bring it about, might use its points as a start in negotiating a compromise---among The Episcopal Church, the good and faithful Episcopalians of San Joaquin, and Bishop Schofield---that would avoid needlessly wasteful and rancorous litigation. A solution that lets everyone exist within their own parameters is at hand, if Christian consciences will only apply themselves to that end.

Update on the History of Canon IV.9.2

It is a source of wonderment to me how much ink can be spilled (or, to modernize the metaphor: how many bytes can be consumed) over the simple language of a Canon---how many people can find the language to be unclear, ambiguous, or "in need of clarification." The dispute over the validity of the depositions of Bishops Schofield and Cox has divided not just the rank and file, but also the professionals who earn their living by working with the Canons---with what they mean, and with how they apply on a daily basis.

Over at a blog not especially known for its tolerance of those who would find fault with the Presiding Bishop's conduct in this matter, we have the views of a canon lawyer who is convinced that Bishop Jefferts Schori read Canon IV.9.2 correctly in pronouncing that the House of Bishops had given its consent to the depositions. To frame the issue, the question is the meaning of the following bolded phrase from that section of the Canon:

Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

Those who have read my earlier post on the history behind this Canon will recall that although the wording of this phrase changed somewhat between the Canon's first enactment in 1853 and its taking its current form at GC 1904, its meaning, in my view, did not change. Now look at the way "Robert" regards this same history:

[I]t is important for TEC's leaders and their supporters to be able to demonstrate that their reading of the deposition canon is not arbitrary or capricious, but is grounded in sound principles of canonical interpretation. As a lawyer who has some experience with canon law, I think they have more than met that burden. At the risk (nay, the certainty) of being tedious, here's why:

1. The original deposition canon was enacted in 1853, and required the consent of "the majority of the Members of the House of Bishops."

The canon did not call for a meeting of the House, and, in language that is beyond peradventure, required the consent of the majority of the entire membership of the House of Bishops.

2. The canon was amended in 1859, when it required the consent of "the majority of the House of Bishops." Again, no meeting was called for, and it remained clear that the consent of the majority of the entire House of Bishops had to be obtained.

3. Another amendment was adopted in 1874, in response to the deposition of Bishop Cummings [sic: the name is "Cummins"], Assistant Bishop of Kentucky. Although the Presiding Bishop had obtained the written consents of a majority of the Bishops entitled to seats in the House of Bishops, the canon then in effect (see 2 above) required the consents of "the majority of the House of Bishops."

To resolve any doubts about the deposition process going forward, the 1874 canon required the Presiding Bishop to convene a meeting of the House of Bishops to consider the matter, and further provided that, "if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent," the Presiding Bishop shall proceed to depose the abandoning Bishop.

It is significant that, in terms of the number of consents required for deposition, the canon was revised in 1874 to correspond to what the Presiding Bishop had actually obtained for Bishop Cummings's deposition: a majority of the Bishops entitled to seats in the House of Bishops.

Based on that history, it seems clear that, in 1874, although a meeting was now required, the canonical majority of consents needed for deposition was a majority of Bishops entitled to seats "in the House of Bishops," not merely those entitled to seats at the meeting.

4. In 1904, the canon was amended again to provide that, "it shall be the duty of the Presiding Bishop to convene the House of Bishops to consider the case; and if the said House, by a majority of the whole number of Bishops entitled to vote, shall give their consent," the Presiding Bishop shall depose the Bishop in question.

NOTE WELL--the words "whole number of Bishops entitled to vote," in the 1904 canon, are NOT followed by the words "in the House of Bishops," or any reference whatsoever to "the House of Bishops."

Prior versions of the canons did contain such a reference: 1853 ("the majority of the Members OF THE HOUSE OF BISHOPS"); 1859 ("the majority OF THE HOUSE OF BISHOPS"); and 1874 ("a majority of the whole number of Bishops entitled at the time to seats IN THE HOUSE OF BISHOPS")(emphasis added).

The 1904 General Convention could have said "a majority of the whole number of Bishops entitled to vote IN THE HOUSE OF BISHOPS," but it did not. It certainly had a significant prior history of using those words, and when it wanted to refer to the entire House of Bishops, it did so expressly. The clear implication of omitting any such reference in the 1904 canon, is that the majority required is a majority of the "whole number of Bishops entitled to vote" WHO ARE PRESENT AT THE MEETING (in the current canon, the meeting is the clear referent immediately preceding the specified vote). Otherwise, the act of the General Convention in eliminating the words, "in the House of Bishops," makes no sense.

I will interrupt Robert's argument at this point, because it is at just this point where I believe he goes astray. Note that under his reading of the different versions, the meaning of the language was changed significantly by the General Convention of 1904. In other words, he agrees that from 1853 until 1904, the language required the consent of a majority of all the Bishops having seats and the right to vote in the House of Bishops, whether they were present and voting or not, and that this number was a larger number than just the majority of Bishops present and voting at a particular meeting. But in 1904, he contends, this larger requirement was reduced to just a majority of "the whole number of Bishops entitled to vote who are present at the meeting." He derives the intent to make this significant change from the dropping of the phrase "in the House of Bishops" following the words "entitled to vote".

Robert's argument, like so many other carefully constructed lawyers' arguments, depends on its narrow focus. That is, he is asking you to look at just one end of the sentence in question, while he omits to quote from its beginning. In interpreting statutory language, one ignores the beginning of a sentence at one's peril, because it frequently contains the subject of the sentence (or in this case, of the dependent clause)---as it does here. Look back at the full sentence as quoted at the outset above:

If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry . . .

As we shall see, Robert usually pays attention to subjects, but he has failed to do so here. My italicization above is meant to bring out the fact that it is the House of Bishops, and not just those Bishops present and voting at one of its meetings, who is to give the consent to deposition. Given this sentence structure, to repeat the phrase that GC 1904 dropped would produce a redundancy:

If the House, by a majority of the whole number of Bishops entitled to vote in the House of Bishops, shall give its consent . . .

Where else would the Bishops be entitled to vote on the deposition of a colleague, but in the House of Bishops? (If you had been a draftsman at GC 1904 taking up this Canon, you would have eliminated the language also, as entirely superfluous.) The point is not just that the language would have been superfluous, however. The point is rather that Robert is not entitled to conclude that a significant change in meaning was intended just because some language that would have been superfluous was left out.

To clinch this refutation, let us review each form of the sentence in its earlier manifestations. Here is how it read when originally enacted in 1853:

. . . such Bishop, Presbyter, or Deacon shall be held, ipso facto, as deposed to all intents and purposes; and shall thereupon be pronounced deposed; . . . and if a Bishop, by the Presiding Bishop, with the consent of the majority of the Members of the House of Bishops.

Here is how it was changed to read in 1859:

And if said declaration be not made within six months as aforesaid, it shall be the duty of the Senior Bishop with the consent of the majority of the House of Bishops, to depose from the Ministry the Bishop so certified as abandoning . . .

And here is how it was changed to read in 1874:

And if such declaration be not made within six months, as aforesaid, it shall be the duty of the Presiding Bishop to convene the House of Bishops, and if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent, the said Presiding Bishop, or the senior Bishop present, shall proceed to depose from the Ministry the Bishop so certified as abandoning . . .

So what really changed between the earlier versions and the 1904 version we have today? The answer is (roll the drums): the subject of the clause! In each of the three earlier versions, the subject was "a majority" (of the Bishops in the House of Bishops), and in 1904, the subject became the House of Bishops itself, acting by "a majority." Was this a substantive change, or just a different way of constructing a sentence? Let's consult with Robert again, on the subject of subjects.

For background, we have to look at one of the criticisms of Robert's analysis left as a comment on the blog, by one D. C. Toedt, whose blog The Questioning Christian is one of my regular stops on the Web. Like me, D. C. is an attorney who is affiliated with an Episcopal Church. We disagree on a number of current issues in the Church, but we do so honestly and with respect. One thing we agree on is the plain meaning of this phrase in Canon IV.9.2. Here is what D.C. had to say about Robert's (mis)reading of the Canon:

First, Robert doesn't address the effect of Art. I.2 of TEC's constitution, which defines which bishops are entitled to vote (basically, all active and retired bishops) and follows up by saying that "A majority of all Bishops entitled to vote, exclusive of [basically, retirees], shall be necessary to constitute a quorum for the transaction of business." This says two things: (A) That you need fewer bishops to achieve a quorum than you do for a majority of all bishops "entitled to vote" (because for quorum purposes you don't count retired bishops); and, even more importantly, (B) that the required vote for deposition under Canon IV.9.2, "a majority of the whole number of Bishops entitled to vote" cannot mean merely a majority of a quorum.

Second, Robert doesn't consider that in many other places, the Constitution and Canons use phrases such as "2/3 of all bishops present and voting." In other words, the drafters knew very well how to use the qualifier present and voting to limit the number of votes needed to a stated percentage of those present at the meeting. The unmistakable inference is that they did not intend to do so in Canon IV.9.2.

Robert responded to this criticism in a comment as follows:

Article I, Section 2 of the Constitution describes who has a seat and vote "in the House of Bishops," and how many (and which) Bishops are necessary to constitute a quorum of the House for the transaction of business. In other words, the SUBJECT of that Section is THE HOUSE OF BISHOPS, not any particular meeting of the House.

The SUBJECT of Canon IV.9.2, however, is expressly the "next regular or special meeting of the House." The Canon describes the minimum number of consents that must be obtained AT THE MEETING in order to depose.

I have to interrupt Robert here, because he has lost the argument. How can he parse the clause we have been looking at and say that its subject is "expressly the 'next regular or special meeting of the House'"? The verb is "shall give", and the answer to the question "Who shall give?" is "the House"---not the prepositional phrase "at the next regular or special meeting of the House". That phrase qualifies the verb in the earlier sentence "shall present", and answers the question where (or when) shall the presentation occur? It certainly is not the grammatical, or even substantive, subject of any sentence or clause in the Canon. Just to be sure we are understanding him, let's go back to Robert:

Furthermore, Article I, Section 2 does not use the same language as that used in Canon IV.9.2; the Section says "all Bishops entitled to vote;" the Canon says "a majority of the whole number of Bishops entitled to vote."

For a response to this argument, let me quote D.C. Toedt again:

Robert @ 2:51 pm, you seem to think that the phrase "a majority of the whole number of Bishops entitled to vote" (Canon IV.9.2) means something materially different than "[a] majority of all Bishops entitled to vote" (Art. I.2). (Emphasis added.) That's certainly an interesting point of view, but I think most people would read the two phrases as being synonymous.

I have to agree again with D.C.; Robert is skating on thin ice if he draws much semantic difference between the words "the whole number of" and "all". But it is a distinction without any apparent consequence, because Robert does not go on to say how the difference between those two phrases leads to any different interpretation of the two sentences in which they appear. Robert seems to concede that the phrase in the Constitution means "a majority of the whole House of Bishops," and this weakens his position that the equivalent phrase in the Canon means something different.

One final problem with Robert's position: he wants to use the absence of the phrase "in the House of Bishops" to infer a different phrase: "who are present at the meeting"---and this inference, as we have seen, changes the whole meaning of the sentence. Well, that same argument could be used in the case of Article I, Section 2 of the Constitution, which defines a quorum. It says:

A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.

Now this sentence likewise lacks the magic phrase "in the House of Bishops" following the words "entitled to vote". So if, following Robert's argument, we insert his preferred phrase "who are present at the meeting", we get the following:

A majority of all Bishops entitled to vote who are present at the meeting, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.

This time we get a manifest absurdity: a quorum would consist of a majority of whoever shows up at a meeting---even if there were only three Bishops present. See why arguments from inference are among the trickiest there are in a lawyer's book of stratagems?

I enjoy reading other people's views and arguments about the matter; maybe that's because I'm an attorney, that's part of how I make my living, and I can appreciate legal artistry when credit is due. What I do not enjoy, however, are the attitudes that sometimes go with the arguments. Here, for example, is how Robert opened and closed his piece:

On the one hand, the calumny that continues to be heaped upon our Presiding Bishop and her Chancellor over their interpretation of Canon IV.9.2 (the deposition of a Bishop canon) has become quite tiresome.

On the other hand, I do think it is important for TEC's leaders and their supporters to be able to demonstrate that their reading of the deposition canon is not arbitrary or capricious, but is grounded in sound principles of canonical interpretation.

. . .

Of course, there are certain people who will never be convinced of the reasonableness of our Presiding Bishop's interpretation of Canon IV.9.2, no matter what level of detail or analysis is provided in support of that interpretation.

Nonetheless, in my opinion, based on a detailed analysis of the language, history, and use of Canon IV.9.2, as well as a review of other relevant provisions of the Constitution and Canons of the Episcopal Church, the depositions of Bishops Schofield and Cox were reasonably, fairly, and canonically conducted.

Let's move on to something else.

Sorry, Robert---your argument does not merit the conclusion you draw; you have demonstrated only that if you leave out the subject of a clause in a sentence, and infer from what's left a change that was never intended, you can make the sentence mean something entirely different from what it says. For all the bytes out on the Web that have been devoted to this subject, I have yet to see a convincing textual argument that would justify the Presiding Bishop's (and her Chancellor's) misreading of the Canon. Now, who's next?

A Tale of Two Dioceses (Following the Canons-II)

(Part I of this imagined Memorandum to a future Presiding Bishop is here.)

II. A Tale of Two Dioceses

As noted in Part I, a Diocese of The Episcopal Church has a dual existence: it is canonically recognized as a Diocese by The Episcopal Church, and it is legally recognized as a separate entity by the State in which it geographically exists. Thus the Diocese of San Joaquin was recognized both as a diocese belonging to Province VIII of The Episcopal Church, and within California it was recognized as an unincorporated association by the State of California.

An "unincorporated association" is just a gathering of two or more people to accomplish some lawful purpose. Other groups of people in California could come together at any time and call themselves a diocese, but without more formalities, they would not be recognized as such by The Episcopal Church. Likewise, The Episcopal Church could through its General Convention create two new dioceses out of an old one, but until the second diocese filed its papers with the Secretary of State, it would not receive official recognition by the State of California.

Thus to fulfill its role and function properly in both the spiritual and the temporal domains, a diocese has to satisfy both the formal requirements of religious canon law, and the formal requirements of secular law. It cannot ignore one for the other, and it cannot avoid complying with both sets of requirements.

Because an association is just that---an association, or a coming together, of persons---an association can also split up into two (or more) separate groups. If it does, then there are two possibilities: one group can claim continuity with the former combined group, and carry on its name and governing principles, while the second group can form a new association of its own, with a new name, and with freshly adopted governing principles (which could be identical with the former ones; they would just have to be formally adopted by the new association).

The second possibility is that each of the two splinter groups can claim continuity and identity with the former combined group. In that event, only the courts can settle the matter, absent a compromise agreement. The State will not allow two separate entities to have the same legal name, so only one of the two groups can be declared the successor to the former organization, its name, and its articles of association (or Constitution and Canons, in the case of a religious diocese).

This is what has happened in San Joaquin. As detailed in the chronology in Part I, the unincorporated association known legally as "The Diocese of San Joaquin" was until December 2007 acknowledged as a Diocese of the Episcopal Church. With the changes made to its Constitution and Canons in December 2007, however, that unincorporated association made it impossible for it to continue to be so recognized. It aligned itself with the Province of the Southern Cone, whose synod authorized the alignment---notwithstanding that Province's Constitution, which limits its geographical territory to South America---on a temporary and "emergency" basis.

The decisions taken by the unincorporated association to amend its Constitution and Canons in December 2007 were not unanimous ones. A number of clergy and laity who had until then been members of the association disagreed with the move, and wished to remain in The Episcopal Church. But the amendments were passed by the constitutionally required number of votes at two successive annual conventions, the conventions were duly and lawfully noticed and had the required quorums of members present, and all requirements of California and local canon law were scrupulously followed in the process. What, then, becomes of the dissenters?

As explained in a previous post, the dissenters who have since gone to court took the legal position that all of the changes and amendments in December 2007 were null and void, on the ground that they exceeded the authority of the association to make. On March 29, 2008, these dissenters held a "special convention" and passed motions which rescinded all of the December 2007 changes, and confirmed a new Provisional Bishop to lead them. This put the dissenters in the position of claiming that their association was the only true continuation of "the Diocese of San Joaquin", and that whatever the other organization might be, it was not entitled to call itself "the Diocese of San Joaquin", or to hold title to any of the property or bank accounts which were owned by the Diocese before December 2007.

Despite the claim of continuity, however, the case was not that simple. The former "Diocese of San Joaquin" had its headquarters in Fresno, and was headed by Bishop Schofield. The new claimant to the title has its headquarters in Stockton, and chose Bishop Lamb as its provisional leader. The new association must therefore have adopted resolutions making these changes, while the old association did not. Thus the conclusion is unavoidable that while there may be only one "Diocese of San Joaquin" in the eyes of The Episcopal Church, there are currently two of them in the eyes of California law. In order to keep the discussion from being too confusing, I shall use in this memorandum the following terminology: "the Diocese of San Joaquin" refers only to the unincorporated association of that name as it existed up until the changes adopted on December 8, 2007; "the Anglican Diocese of San Joaquin" refers to the entity that made those changes, whose headquarters are currently in Fresno, and whose leader is currently Bishop Schofield; and "the Episcopal Diocese of San Joaquin" refers to the unincorporated association who met in special convention on March 29, 2008, whose Constitution and Canons are restated versions of the ones that existed before the December 2007 changes, and whose leader is Bishop Lamb.

As I noted earlier, the Episcopal Diocese of San Joaquin, and The Episcopal Church itself, took the position in court that the EDSJ was the only valid entity under California law which was the true continuation of the former Diocese of San Joaquin. And indeed, the Anglican Diocese of San Joaquin did not take issue with the right of those remaining to organize themselves---but it was not about to concede that the minority could take over the majority's entity, which had lawfully voted to remove its affiliation with The Episcopal Church. The dispute thus came down to who now rightfully owned the property and assets of the Diocese of San Joaquin.

There were, and are, two ways of analyzing this question. One, based on neutral principles of (California) law, looks at the matter in this way: (1) On December 7, the assets were held by the Diocese of San Joaquin; (2) on December 8, the Diocese made certain changes to its Constitution and Canons which did not, however, change or affect in any way the title to those assets; and (3) from and after December 8, the same legal entity, minus a few members, has continued to hold title to those assets. Moreover, the entity still has the same offices in Fresno, and the same person designated as its Bishop, who forms a corporation sole which it has authorized to govern it. Consequently, no other or different entity can have a valid claim to the assets.

The second approach is based on older principles of law as applied to religious organizations which are hierarchical in form: (1) The entity which existed on December 7 was a constituent diocese of a "hierarchical" organization, namely, The Episcopal Church; (2) The Episcopal Church does not recognize the validity of the acts which created the ADSJ; therefore (3) the ADSJ is not a true canonical entity, and only the EDSJ can hold title to assets which were placed and held in trust for The Episcopal Church, because it is the only true continuation of the entity that existed before December 2007.

Notice that the second approach entails proofs which are quite different from those involved in the first approach. Proof of the first approach involves nothing more than showing that the annual conventions were duly noticed, that required quorums were present, and that the amendments passed with the requisite majorities, but they did not change the structure of the association, which continued as before, with the same leader and the same headquarters. To establish the second approach, the burden was on the EDSJ as plaintiff to prove that (1) TEC meets the definition of a "hierarchical church" in the eyes of the law; (2) that the highest authority in TEC has definitively determined that dioceses cannot leave the Church; and (3) that TEC has in place a rule, or canon, that declares that all property of a diocese is held in trust for TEC.

There is also another burden of proof, applicable in this instance because the EDSJ chose to file suit as a plaintiff. One of the constitutional requirements for a court to be able to entertain a plaintiff's lawsuit is that there be an actual "case or controversy" for it to decide. In other words, courts will not entertain manufactured or hypothetical disputes that are unrelated to real parties disagreeing about real issues. And one of the indicators of a genuine "case or controversy" is that the plaintiff is the real party in interest---that is, he/she/it is the person whose interests are actually at stake, as opposed to a puppet, a nominee, or an impostor. This requirement is satisfied by the plaintiff's demonstrating that he has a real and genuine connection to the issues at stake. The courts refer to this concept as a plaintiff's standing to sue.

A second requirement which the plaintiff must meet in any lawsuit is that he, she or it has the capacity to sue as plaintiff. This means, for example, that the plaintiff is not a minor, or an incompetent person---such people lack the capacity to sue in a court of law by themselves, and must be represented by court-appointed guardians. In the case filed by the EDSJ, it had to show that it was an actual diocese of The Episcopal Church---that is, that it properly adopted a Constitution which acceded in the required language to TEC's Constitution, and that General Convention had acted to approve its accession. Moreover, as another party plaintiff, Bishop Lamb had to show that he was the duly appointed and acting head of the EDSJ, because he alleged in the complaint that he was suing "in his capacity as the Episcopal Bishop of San Joaquin."

Note that the requirements of a plaintiff's standing cannot be waived, while the requirements of capacity to sue can, if the defendant makes no proper objection. (If you are sued by an incompetent person, you may want to waive the requirement and not object.) The requirements of standing, necessary for a court to have jurisdiction, go to a court's ability to hear the case, while the requirements of capacity are designed to ensure that the court has a plaintiff who is appropriate under the claims that are made. In California, if a plaintiff lacks standing, the court must dismiss the case, while if the plaintiff lacks capacity to sue, the court must dismiss only if the defendant objects and the plaintiff does not substitute in an appropriate party with the requisite capacity.

In the lawsuit filed by the EDSJ, therefore, the objections made by the defendants were not surprising: they objected to both the capacity and the standing of the plaintiffs EDSJ and Bishop Lamb to sue, and they objected to the standing of the third plaintiff, TEC itself. In support of these objections, they showed: (1) that the "special convention" had not been called by the Ecclesiastical Authority of the Diocese, as required by its Canons; (2) that insufficient notice of the measures to be adopted at the special convention had been given in conformity with the Diocesan Canons (which require at least 60 days' notice, when the convention was called on less than 30 days' notice, immediately following the March 12 "deposition" of Bishop Schofield); (3) that there was not a sufficient quorum of clergy present who had been canonically resident in the Diocese for the three months preceding the convention; (4) that objections to the convention's going forward had been validly interposed by canonically resident clergy and by parishes who had been excluded from the process by which the convention was convened and the delegates qualified and seated; and (5) that there had been no act of General Convention approving the new entity as a diocese of The Episcopal Church. Consequently, the court found that Bishop Lamb had not been properly designated as the Bishop, and lacked both the capacity and the standing to sue, that the EDSJ had not validly rescinded the actions of the December 2007 Diocesan Convention, and that the unincorporated association which was the EDSJ was not the lawfully organized successor to the Diocese of San Joaquin, and so lacked both the standing and the capacity to sue. With regard to the standing of The Episcopal Church, the court found that nothing in TEC's Constitution and Canons imposed a trust on diocesan property and assets. The "Dennis Canon", relied upon by TEC, applied only to property held by or for individual parishes:

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. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons. [Canon I.7.4; emphasis supplied.]

Since TEC's lawsuit sought only the return of diocesan assets, and it was not a beneficiary of any trust that could be imposed on such assets by the terms of the Dennis Canon, the court concluded that TEC lacked the standing to sue for those assets. As a result, the court dismissed the lawsuit, without having to decide whether the hierarchical or neutral principles approach applied in the case.

This result caused a great backlash within TEC itself, and ultimately led to your election as Presiding Bishop Jefferts Schori's successor. You have indicated that in your approach to the situation, you wish only to follow the Constitution and Canons of The Episcopal Church insofar as they could properly be applied. In the concluding portion of this memorandum, I shall show what steps can properly be taken under our Constitution and Canons to rectify the current unresolved situation in San Joaquin.

Part III of this Memorandum is here.

How to Follow the Canons in San Joaquin

There seems to be so much confusion about what is going on in the Diocese of San Joaquin that it is probably too optimistic to expect that another post on the subject will assist anyone in understanding the situation. In considering how to approach the subject, and on how to place the current lawsuit in context, it occurred to me that one viewpoint that has not yet been seen is that of a chancellor's advice to a Presiding Bishop of The Episcopal Church who genuinely wants to honor and to follow TEC's Constitution and Canons. So let the following memorandum (which will appear in three parts) speak for itself.

MEMORANDUM

To: The Most Reverend N_______, Presiding Bishop of The Episcopal Church

From: A. S. Haley, Church attorney

Re: San Joaquin: the Situation and my Recommendations

The Situation in San Joaquin

A. Before December 2007

1. The Episcopal Diocese of San Joaquin was an unincorporated association organized under California law. As an unincorporated entity, it did not have "articles of incorporation" on file with the State, but it did have its own Constitution and Canons, adopted over the years at various diocesan conventions.

2. The Episcopal Diocese of San Joaquin was canonically recognized by The Episcopal Church as one of its dioceses, electing delegates to General Convention. Its Constitution contained language that it "accedes to the Constitution of that branch of the Holy Catholic Church known as the Episcopal Church in the United States of America and recognizes the authority of the General Convention of the same."

3. Thus the Diocese of San Joaquin had two identities before December 2007: it was an entity recognized by California as an unincorporated nonprofit religious association, and recognized by The Episcopal Church as a constituent Diocese of Province VIII of that Church.

4. California law authorizes the creation of a special kind of corporation, the "corporation sole", by "the bishop . . . of any religious denomination, society, or church, for the purpose of administering and managing the affairs, property, and temporalities thereof." (Calif. Corp. Code section 10002.) Under that provision, the Rt. Rev. John-David Schofield, who had been elected and consecrated as Bishop of San Joaquin in 1988, filed amendments to the articles of the corporation sole belonging to his predecessor (the original corporation sole for the Bishop of the Diocese of San Joaquin had been incorporated in 1911). These amendments made him the incumbent of the corporation sole under California law.

5. At its Diocesan Convention in October 2005, the Diocese of San Joaquin approved an amendment to Article II of its Constitution stating that the diocese would accede "to the extent that such terms and provisions, and any amendments thereto, adopted by the authority of the General Convention, are not inconsistent with the terms and provisions of the Constitution and Canons of the Diocese of San Joaquin...". This was a response (begun at the Diocesan Convention of 2003, and then changed at the Convention of 2004) to the actions of TEC's General Convention 2003, which approved the election of the Rt. Rev. V. Gene Robinson, an openly non-celibate homosexual who had divorced his wife, to be Bishop of the Diocese of New Hampshire.

6. In March 2006, Bishop Schofield again filed amendments to the articles of his corporation sole. These amendments changed the language that specified how his successor was to be chosen, and removed the requirement (conforming to Art. II, sec. 2 of TEC's Constitution) that the election of his successor be approved by a majority of the Bishops and the Diocesan Standing Committees of The Episcopal Church. After the amendment, the articles required only that Bishop Schofield's successor be consecrated as "a Bishop in the Apostolic Succession."

7. At the Diocesan Convention in December 2006, the 2005 amendment was superseded in favor of one that would lead to actual withdrawal from TEC. The delegates voted (clergy: 68-16; laity: 108-12) to amend Article II of their Constitution to remove language that stated the Diocese acceded to the Constitution of The Episcopal Church, and to substitute language making the Diocese "a constituent member of the Anglican Communion." This change did not specifically align the Diocese with any other Anglican Province (indeed, it left it free to reaffiliate with The Episcopal Church, should it so choose), and was the first vote; before the change would take effect, it had to pass a second vote at the next annual Diocesan Convention.

B. After December 2007

8. On December 8, 2007, a large majority of the delegates to the annual Convention voted again to adopt the proposed amendment to the Constitution to remove the Diocese from The Episcopal Church and to make it part of the broader Anglican Communion, along with related changes. (The text of the amendments may be read here.) A subsequent motion passed to amend the Canons of the Diocese to subject it to the authority of the Primate of the Anglican Province of the Southern Cone, the Most Rev. Gregory Venables.

9. The Standing Committee of the Diocese of San Joaquin has eight members, two of whom are elected at each Diocesan Convention to four-year staggered terms. At the Convention in December 2007, Mr. Stevie Oates was elected as a new lay member, and the Rev. Richard I. James and the Rev. Robert G. Eaton as clergy members (there was one additional clergy position vacant because of the departure of the Rev. Dan Martins for Indiana). Their terms would expire in December 2011.

10. Following the 2007 Convention, two of the lay members of the Standing Committee (Messrs. Oates and Yumoto) announced their intention of remaining with their respective congregations who were joining Bishop Schofield and the other parishes affiliating with the Province of the Southern Cone. The remaining six members of the Standing Committee, including all four of its clergy members, were with parishes who were still going through the process of discernment as to whether to stay with TEC or transfer their affiliations to the Southern Cone.

11. The Standing Committee held at least one regular meeting in January 2008 at which it dealt with a typical agenda, including the recording and transmission to the Presiding Bishop of its approval to the ordination of a Bishop who had been elected by another Diocese. What happened next is recounted here:

[A]s is now well-documented--on this blog and elsewhere--the four clerical members of the Standing Committee, and two of the lay members, almost immediately following the December convention, signaled their intention to not follow the majority to the Southern Cone. They did so by consenting to the election of a bishop by a diocese of the Episcopal Church, and transmitting that consent through normal channels. In mid-January, the President of the Standing Committee spoke on the phone with the Presiding Bishop and informed her that a majority of committee's members did not intend to join in the secession, and wished to continue to operate under the Constitution and Canons of the Episcopal Church. A day after this phone conversation, Bishop Schofield, in effect, recognized this reality and effectively "fired" these six individuals, and reconstituted the Standing Committee of the Southern Cone Diocese of San Joaquin from the remaining two lay members.

Bishop Schofield appointed six other persons to replace those he had dismissed. This move created a second Standing Committee whose responsibility was to Bishop Schofield and the Province of the Southern Cone. The original Standing Committee had not recognized the affiliation, and so wished to remain bound to The Episcopal Church, as its president had told your predecessor.

12. Nevertheless that predecessor, the Most Rev. Katharine Jefferts Schori, on January 25, 2008 sent an extraordinary letter addressed to all eight of the members of the Standing Committee as it had been constituted following the December 2007 Diocesan Convention. It informed them:

It has come to my attention that in the past several months you have taken actions in support of an attempt to take the Episcopal Diocese of San Joaquin out of the Episcopal Church and into affiliation with the Province of the Southern Cone. I understand that these have included voting to amend the Diocese’s Constitution and canons and attempting to organize as the Standing Committee of an entity that identifies itself as an Anglican Diocese of the Province of the Southern Cone. These actions directly conflict with the Constitution and canons of the Episcopal Church.

Canon I.17.8 of the Episcopal Church provides that “[a]ny person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised.” In the light of your recent actions, I find that you have been and are unable to well and faithfully fulfill your duties as members of the Standing Committee of the Episcopal Diocese of San Joaquin under Canon I.17.8. Accordingly, with this letter I inform you that I do not recognize you as the Standing Committee of the Episcopal Diocese of San Joaquin.

It is important to take note of the factual inaccuracy of the charges made in this letter. Contrary to what Bishop Jefferts Schori states, the Standing Committee did not vote to take any of the actions described as a basis for her refusal to recognize them any longer. Instead it was the Diocesan Convention that held the votes and passed the changes in question. Only the vote to change the Canons actually changed the affiliation of the Diocese, and the number of persons who voted for the Constitutional change (affiliating with the larger Anglican Communion) was greater than the number who voted to change the Canons. How the individual members of the Standing Committee may have voted as Delegates on the individual resolutions proposed at Convention is not only not known, but is irrelevant to their function as a Standing Committee.

13. The six members still remaining on the Standing Committee responded to Bishop Jefferts Schori in a letter informing her that she was without canonical authority in refusing to recognize them, that they were still the Diocesan Standing Committee, and would be "the Ecclesiastical Authority of the Diocese of San Joaquin in the event the House of Bishops should choose to depose Bishop John-David Schofield." They concluded with this warning:

Any attempt on your part, or on the part of any other person, to circumvent or replace the Standing Committee as the Ecclesiastical Authority will be a violation of the Constitution and Canons of the Episcopal Church.

14. From this point on, the events that unfolded are well known (see also the timeline here). Having inhibited Bishop Schofield following the certification of charges that he had "abandoned the communion of this Church," and rejecting Bishop Schofield's response to the charges in which he resigned his seat in the House of Bishops, Bishop Jefferts Schori brought before the House of Bishops, on the last day of its March 2008 meeting at Camp Allen, a resolution to depose him. Although there was only a bare minimum of a quorum of the House of Bishops (68 active Bishops, plus a small number of retired Bishops) present when the debate started, and although Canon IV.9 requires, in order to depose, the vote of "a majority of the whole number of Bishops entitled to vote"---or 148 Bishops, active and retired, at the time of the Camp Allen meeting---Bishop Jefferts Schori took only an unrecorded voice vote on the resolution, and declared that it had carried. A few days later, she certified that Bishop Schofield had been deposed in accordance with the vote.

15. The Diocesan Standing Committee, with its six members, refused to recognize the validity of the vote to depose Bishop Schofield, and indicated that they would wait to assume the Ecclesiastical Authority of the Diocese until he had been properly deposed. Bishop Jefferts Schori, however, did not wait. She herself issued a call for a Special Convention of the Diocese on March 29, at which all delegates were required to subscribe an oath of conformity to the Episcopal Church as a condition of being allowed to attend. She appointed clergy from other dioceses to serve in the Diocese on an interim basis pending the Convention, and she chose retired Bishop Jerry A. Lamb to be confirmed by the Special Convention as Provisional Bishop of the Diocese, with authority to sue for recovery of Church property. As has been noted in a thorough review of the legality of these actions, they each violated the Constitution and Canons of both The Episcopal Church and the Diocese of San Joaquin.

Except as will be necessary in the next part of this memorandum, I shall not recount here the legal debacle that ensued from these actions, when Bishop Lamb brought a lawsuit in Fresno County Superior Court to try to recover the title to the assets of the Diocese, and to have himself declared Bishop of San Joaquin and the rightful incumbent of the corporation sole; or the actions in the Church that led to your subsequent elevation to the post of Presiding Bishop. To do so would take us too far astray from the subject, which is to recommend concrete canonical steps and guidelines for you to follow in rectifying the unfortunate situation in San Joaquin. The next part of this memorandum will address the legal and canonical status of the two Dioceses of San Joaquin. A proper understanding of their status is essential to deciding on what steps may be taken toward that end.

(Part II follows in a subsequent post.)