My Head Is Starting to Hurt . . .

(Once again, I offer a tip o' the Rumpolean bowler to Greg Griffith, at StandFirm, for the news that sparked this post.) Remember when I put up a post called "A Murder of Crows"? I was only half-facetiously referring to the mess that would ensue if the Episcopal Church (USA) and its leadership determined to carry on the charade of pretending that "dioceses can never leave the Church; only people can." I said things would become more and more irregular, and more and more mixed up, until what resulted could be described only as "a murder of crows, a scold of jays, and a sneak of weasels."

I think we are there already. The Presiding Bishop, the Most Rev. Katharine Jefferts Schori, is acting more and more like an authoritarian metropolitan primate, and is claiming powers and jurisdiction over individual dioceses that have never been granted to her office by ECUSA's Constitution or Canons. Things are about to become so jumbled up legally and canonically that my head starts to hurt in just contemplating how to explain Bishop Schori's gallimaufry (that's a fancy word for stew) to non-legal folk who just come here to see if they can get a handle on what is happening. I shall try my best, but believe me, it is not that simple.

To start with, it appears that Presiding Bishop Jefferts Schori has been taken up on her metropolitan strategy. This has needed doing for some time, I regret to have to say. The Rt. Rev. Jack Leo Iker, the Bishop of the (only currently existing) Diocese of Ft. Worth, has written Bishop Jefferts Schori a marvellously concise letter that exposes in three short paragraphs the flaws in her plan to colonize Ft. Worth. (Her office has announced that she will appear there on February 7 to convene a "Special Convention", and to lead a celebration of Holy Communion at All Saints, Ft. Worth. Bishop Iker's letter pretty much ignores the special convention, which in any event is illegal, in purporting to be a gathering of the Diocese, and points out that she has not been invited to the Diocese to preach or to celebrate communion. In doing so, he is turning the tables on her with a letter that she wrote earlier to Archbishop Venables, when the shoe was on the other foot.)

Now, before I wade in too far too fast, please understand that when I say there is only one existing Diocese of Ft. Worth, I am referring to that entity in its legal sense. The Episcopal Diocese of Ft. Worth is a specific corporation organized under Texas law. Its Bishop is the Rt. Rev. Jack Leo Iker, who has placed himself under the jurisdiction of the Province of the Southern Cone. Thus the Presiding Bishop has no jurisdiction over him. Why, you ask, is he then citing ECUSA Canons in his letter to the Presiding Bishop, if he is no longer subject to them? Because whatever his situation may be, the Presiding Bishop is still subject to them---or should be, at any rate. That is why I say he has "taken her up" on her claim to be acting with authority. Her only source of authority is in those documents called the ECUSA Constitution and Canons, and it is right for him to demand that she justify her proposed actions with regard to them.

Thus in the first paragraph of his letter, Bishop Iker cites to Bishop Jefferts Schori one of her own canons---Canon III.12.3 (e) [note: the letter has a typo, and cites subsection (c)], which reads:

No Bishop shall perform episcopal acts or officiate by preaching, ministering the Sacraments, or holding any public service in a Diocese other than that in which the Bishop is canonically resident, without permission or a license to perform occasional public services from the Ecclesiastical Authority of the Diocese in which the Bishop desires to officiate or perform episcopal acts.

Bishop Iker then points out that no one in the Episcopal Diocese of Ft. Worth with authority has invited Bishop Jefferts Schori to do any of these things. He states flat-out, in the second paragraph (emphasis added): "You have no canonical authority to do what you propose to do."

In the final paragraph, Bishop Iker makes clear that the individuals purporting to issue the invitation to the Presiding Bishop are still members of parishes that have not left the Diocese (as a diocesan canon allows them to do), and thus are still bound by the diocesan constitution and canons. They are acting both in defiance of those documents, as well as in defiance of his authority as the Diocese's only elected bishop.

What Bishop Iker states is perfectly true. Canon I.4 is the Canon that spells out the duties and powers of the Presiding Bishop. Here is that Canon:

(a) The Presiding Bishop shall be the Chief Pastor and Primate of the Church, and shall:

(1) Be charged with responsibility for leadership in initiating and developing the policy and strategy in the Church and speaking for the Church as to the policies, strategies and programs authorized by the General Convention;

(2) Speak God's words to the Church and to the world, as the representative of this Church and its episcopate in its corporate capacity;

(3) In the event of an Episcopal vacancy within a Diocese, consult with the Ecclesiastical Authority to ensure that adequate interim Episcopal Services are provided;

(4) Take order for the consecration of Bishops, when duly elected; and, from time to time, assemble the Bishops of this Church to meet, either as the House of Bishops or as a Council of Bishops, and set the time and place of such meetings;

(5) Preside over meetings of the House of Bishops; and, when the two Houses of the General Convention meet in Joint Session, have the right of presiding over such Session, of calling for such Joint Session, of recommending legislation to either House and, upon due notification, of appearing before and addressing the House of Deputies; and whenever addressing the General Convention upon the state of the Church, it shall be incumbent upon both Houses thereof to consider and act upon any recommendations contained in such address;

(6) Visit every Diocese of this Church for the purpose of: (i) Holding pastoral consultations with the Bishop or Bishops thereof and, with their advice, with the Lay and Clerical leaders of the jurisdiction; (ii) Preaching the Word; and (iii) Celebrating the Holy Eucharist.

(b) The Presiding Bishop shall report annually to the Church, and may, from time to time, issue Pastoral Letters.

(c) The Presiding Bishop shall perform such other functions as shall be prescribed in these Canons . . .

Let us put aside for a moment Bishop Iker's little jibe at the Presiding Bishop for coming to celebrate Holy Communion in his Diocese without his permission, in violation of Canon III.12.3 (e). For there are things at stake here which are far more important than just a mass. Needless to say, Bishop Jefferts Schori did not consult either with the Ecclesiastical Authority in Ft. Worth before announcing that she would appear there February 7 to convoke a Special Convention. No, indeed---that is not her style. First she claimed to have deposed Bishop Iker, based on the strength only of a press release he issued in response to her declaration that he was inhibited, following the vote by the Diocese to disaffiliate with the Episcopal Church (USA). Then she announced that because of that vote, she did not "recognize" the Standing Committee as the Ecclesiastical Authority of the Diocese.

Of course, both of those actions on her part were utterly without any legal or canonical consequences whatsoever. Not only did Bishop Jefferts Schori lack jurisdiction over Bishop Iker to "depose" him, but his press release did not renounce his orders by simply pointing out that lack of jurisdiction. Nor did she have jurisdiction over the Standing Committee, or any authority to "derecognize it." The "diocese" which she presumed to declare vacant is no diocese at all---how could it be, when ECUSA apologists constantly reiterate that only General Convention creates a diocese, and General Convention will not meet for another seven months?

The entity formerly recognized as a member diocese of ECUSA---which still has the perfect legal right to call itself "the Episcopal Diocese of Ft. Worth", because it is still the same corporation, and did not change its name---could no longer be a member of ECUSA once the change was adopted. As of that instant, ECUSA itself, and its Presiding Bishop, lost all authority and jurisdiction over the diocese and its bishop. (That is, speaking legally again. Remember that to speak canonically has little meaning when it comes to the actions of the current Presiding Bishop. There is no point in trying to guess the canonical effect of what she does when that effect depends totally on what she claims it is from moment to moment. And because in the end she has to make any canonical decision of hers stand up in court, it is only the legal sense of her actions that ultimately matters.)

Having unilaterally acted (so she believes) to deprive the Diocese of Ft. Worth of any Ecclesiastical Authority, she now pretends that she and she alone can fill the resulting vacuum. I ask you to read Canon I.4 again, and read Canon III.13.1 while you are at it (which gives the Presiding Bishop authority to "consult" with the diocesan Convention on the appointment of a provisional bishop). Can you find anything in them that authorizes or allows any such course of action on her part? (Under the Constitution of the Diocese of Ft. Worth, by the way, conventions may be called only by the Bishop or the Standing Committee.) 

Bishop Jefferts Schori, in short, is acting as judge, jury, executioner and Supreme Executive all in one. She first judges and executes the bishop based on a press release; then she judges and summarily disposes of the Standing Committee; and having cleared the way, triumphantly enters on the scene, calls the faithful together and defines unilaterally who may attend and take part (caution: if San Joaquin is any guide, an "oath of conformity" will be required of each delegate), so that the outcome is foreordained. Does anyone fail to see the contrast between how the vote "to reorganize" will be taken, as compared to the vote to depart? 

Now, I realize all too well that there will be those who find the Presiding Bishop's actions in Ft. Worth to be entirely necessary and proper, even if not specifically authorized in the Canons. But those who do so are, I submit, the first to jump up and down and point to the fact that there was until recently no provision in the Constitution or Canons of the Province of the Southern Cone that would allow the Diocese of Ft. Worth to affiliate with it, either---even on a temporary and emergency basis. So let us apply some logic here, to see which side has the better argument.

The affiliation of Ft. Worth with the Southern Cone is temporary, intended to provide primatial oversight until there is in existence a North American province that will provide the same function. (Recall that the other North American province, that which I now refer to as ECUSA, refused to implement the plan of primatial oversight recommended by the Archbishop of Canterbury and the assembled primates at Dar-es-Salaam. Such outright refusal left the folk in Ft. Worth without any recourse within ECUSA, so they sought oversight elsewhere.) There is thus  scarcely any need to go through the cumbersome formalities of amending the provincial Constitution (which includes having the change considered by the Anglican Consultative Council) just to have to amend it again when the emergency---caused by ECUSA's refusal to do what the primates asked it to do---is over.

The claimed "vacancies" in the Diocese of Ft. Worth, however, are of a different legal order of magnitude. There will be thorough and lasting consequences from the action which the Presiding Bishop plans to take there on February 7. Consider these points:

(1) There will be a new "Standing Committee" elected, which will claim to exercise "ecclesiastical authority" over the "Diocese";

(2) There will eventually be elected a new "bishop" of the "Diocese", whom ECUSA's House of Bishops will purport to recognize, and will give a seat and a vote in its future deliberations; and

(3) Actions will be taken in the name of the "Diocese" by either the "Standing Committee" or the "bishop", or both, that will affect the status and careers of clergy, both within ECUSA and in the larger Anglican Communion.

There is only one parallel for the world which ECUSA is about to enter as a result of unilateral and unauthorized actions of its Presiding Bishop, along with the collaboration of willing constituents in San Joaquin, Ft. Worth and Pittsburgh (and perhaps soon, Quincy). That parallel is the nearly 40-year period of the Great Western Schism, from 1378-1417, when there was one who claimed to be the pope in Rome, and another claiming that title in Avignon. (Toward the end of that period, beginning in 1409, there were three cardinals each claiming to be the lawful pope.)

Needless to say, the Roman Catholic Church was hardly advanced in prestige and influence by that disgraceful quarrel. The same is about to be true of the Episcopal Church (USA). There are currently two Bishops of San Joaquin, and soon there will be two Bishops of Ft. Worth, two Bishops of Pittsburgh, and even perhaps two Bishops of Quincy. The Episcopal apologists say it is all the dissenters' fault, because dioceses "can never leave---only people can." Thus the renegades, in their topsy-turvy view of the situation, are the illegitimate ones.

Here is a link to the full Constitution and Canons of the Episcopal Church (USA). Be my guest: you can copy and paste from them into a comment below any language at all from them which you honestly believe restricts a Diocese of the Church from so amending its own Constitution as to remove the clause acceding to their authority. ("Accede" is defined by my dictionary as: "to join up, to become a party to." Thus one who joins up can just as easily leave; one who becomes a party to something can just as easily withdraw.) 

I will even do you a favor by anticipating one suggestion, and by dealing with it here and now. Should you be inclined to cite the following language from Article V, section 1 of ECUSA's Constitution, please pay close attention (the subject and the consequences, after all, are most serious):

A new Diocese may be formed, with the consent of the General Convention and under such conditions as the General Convention shall prescribe by General Canon or Canons . . . 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.

I have added the bold to make one thing perfectly clear about this language: after a new diocese has been formed, it is considered "to be in union" with General Convention only when its Constitution is on file with the Secretary containing an "unqualified accession" to ECUSA's Constitution and Canons. Please note that there is no restriction of any kind on what the new Diocese may do with its Constitution after it has been so filed with the Secretary. Dioceses amend their Constitutions with regularity, yet ECUSA's Constitution contains no requirement that such amendments receive the approval of General Convention, or even of the Executive Council, before they can take effect.

In other words, once General Convention is satisfied that a Diocese has acceded upon being admitted, it never revisits the topic. Some Dioceses, in fact, were admitted (and have continued to remain in ECUSA) without even having any kind of "accession" language in their Constitutions (for details, see this post). So General Convention does not insist that an accession be for all time, and irrevocable---no such language is to be found in ECUSA's Constitution.

To those who would imply a rule that an "unqualified accession" is irrevocable, on the analogy of the United States itself, I would first ask: "Are you prepared to fight a Civil War over it?" Such a rule became established only as a result of that War---because before the Civil War, the Southern States certainly felt that there was nothing in the Constitution that prohibited them from withdrawing.

The real reason that there is no analogy to the United States, however, is that unlike ECUSA, this country is not organized as a voluntary association of independent States. It tried that, with the Articles of Confederation, and found the result unsatisfactory. ECUSA, however, is nothing more than a voluntary coming together of associated dioceses. The "freedom of association" that is enshrined in our First Amendment means just that: dioceses, which are "persons" in the law just like real people, are free to associate with whom they wish. ECUSA's Constitution may be read as saying that the association lasts only for as long as the Diocese maintains an accession clause in its Constitution. Nonetheless, when a Diocese votes to remove the accession clause, all that means is that it no longer wishes to be associated with ECUSA, and no longer can be. (Quaere, as my law professors used to say, about the Dioceses of Maryland and Washington, which do not have such clauses today, and which never have had them in the past.)

Bishop Jefferts Schori, and those who do not question her actions, have succumbed to nothing more than a slogan, which may express some sort of religious sentiment: "people may leave, but dioceses may not." That religious sentiment, however poorly it may be expressed in church canons, does not correspond to the secular law. A Diocese, just like ECUSA itself, has a dual character: it is a creature both of canon law, and a creature of the secular law. As stated by two recognized authorities in the field:

While it seems completely obvious to observe that organized religion requires the existence of formally constituted organizations, the implications for the function and practice of religion are profound. Religion, whatever its transcendent qualities, is an inherently social phenomenon. If it is to have a continuing presence in society, that presence must be organized in some way . . . .

However, what religious organization means to adherents and what it means to outsiders, including the state, can be very different things. . . . [There has to be made] a careful distinction between a religious organization's legal structure and its religious structure. The legal structure is the particular corporate form a religious organization takes in the eyes of the law; it is, in other words, the embodiment of the religion as an organization in matters legal and governmental. As a result, some aspects of any given legal structure are not available to the discretion of organizational adherents---religious or otherwise---but are dictated by law. Examples of legal structure include a non-for-profit corporation, a trust, a corporation sole, and an unincorporated association.

(R.H. Williams and J.P.N. Massad, "Religious Diversity, Civil Law, and Institutional Isomorphism", in J. A. Serritella, et al., eds., Religious Organizations in the United States, at 111 [Durham: Carolina Academic Press, 2006].) Thus while a diocese is an integral structural part of a national church or province, it is so only as a matter of that church's or province's religious structure. Its role as a legal structure is limited and defined by its own governing documents.

A moment's thought will show that it is only in such a way that the legal system can function. The State of Texas, for example, knows everything there is to be known legally about the corporation which constitutes the "Diocese of Ft. Worth" in that State, because its articles are on file with the State government. At the same time, the State of Texas knows nothing at all about the entity which calls itself the "Episcopal Church", for the simple reason that ECUSA's Constitution is not on file with the Texas Secretary of State---for the perfectly good reason, mind you, that ECUSA does not purport to be organized under the laws of the State of Texas.

So if there were some restriction, written or unwritten, in ECUSA's Constitution that affected what the Diocese of Ft. Worth could do under Texas law, how would the State of Texas ever find out about it? The only way that could happen is if there were a legal contract between the Diocese and ECUSA, and ECUSA filed suit in a Texas court when it claimed that the Diocese had breached the contract. In such an instance, ECUSA would plead and prove its contract, and ask the court to enter judgment in its favor.

The Diocese of Ft. Worth has proceeded to follow its own constitutional provisions in voting to amend its Constitution. The amendment, among other things, removed the clause by which the Diocese acceded to ECUSA's Constitution and Canons. That one change made it impossible for that corporation to continue to be a Diocese of ECUSA. Question: what corporation took its place? What Texas corporation exists today, as I write this, which has a constitution which contains a clause acceding to the Constitution and Canons of the Episcopal Church (USA)?

Answer: There is none. None, nada, zilch. All there is are a few disgruntled parishes and their members who disagree with what the majority did. So, another question: have those disgruntled people taken the trouble to form a new corporation of their own? Not to my knowledge, they haven't. What they have done is to claim a right to use the corporate name, and to set up a Website. But a Website does not a Diocese make.

What they also intend to do, apparently, is to make a legal argument as to why the actions of the corporation in amending its governing document should not be given legal effect. (Notice that this is not the same as being given canonical effect. The latter sense, remember, is defined by the Presiding Bishop, since she makes up all her own canons, and by others in ECUSA when she allows them to do so.) Being given legal effect means, in this context, "being enforced by a Texas State court."

So for Bishop Jefferts Schori and her band of followers/enablers to claim that such an amendment was without any authority under Texas law, she will have to plead and prove in Texas court a legally binding contract by which the Diocese agreed to restrict its general power of amendment, notwithstanding the fact that its Constitution---which General Convention and the Executive Council voted to approve, mind you, when the Diocese was admitted to the Church---contains no such restriction.

That's Strike One against the Presiding Bishop's case in court. Strike Two is that there is no such language in ECUSA's Constitution or Canons, either.

The Presiding Bishop is left with the argument that despite the lack of any written language in their respective governing documents, the two entities had an unwritten understanding---a sort of side agreement, if you will, which everyone involved knew about, but which no one felt was necessary, or important enough, to put into writing. That's a pretty tough burden to meet---it would require in this instance a showing of a custom and practice between the Church and its Dioceses in the past.

And there the argument runs smack into the custom and practice which the Southern Dioceses and the Church followed during the Civil War. At the outset of that War (as the post just linked explains in detail), there was considerable discussion in the Southern dioceses about whether the secession of the several Confederate States from the Union had effected ipso facto the withdrawal of the Dioceses from the national Church. This issue was eventually resolved in favor of the dioceses being considered as independently able to make such a decision, each for itself. Those whose conventions were able to meet in wartime thus took steps to amend their governing documents as needed to affiliate with the "Protestant Episcopal Church in the Confederate States of America," whose Constitution was ratified by most of the Southern Dioceses in November 1862. (Only Tennessee and Louisiana were unable to convene assemblies during the entire War, and so never formally ratified it.) And when the War was over, the Southern Dioceses met in General Convention for the last time in November 1865, at which they adopted the following resolutions (bold added for emphasis): 

"Resolved, I. That in the judgment of this Council it is perfectly consistent with the good faith which she owes to the Bishops and Dioceses with which she has been in union since 1862, for any Diocese to decide for herself whether she shall any longer be in union with this Council."

V. "That whenever any Diocese shall determine to withdraw from this Ecclesiastical Confederation, such withdrawal shall be considered as duly accomplished when an official notice, signed by the Bishop and Secretary of such Diocese, shall have been given to the Bishops of the Dioceses remaining in connection with this Council."

So that is Strike Three against Bishop Jefferts Schori, and the claim that a Diocese cannot legally disaffiliate from the Church strikes out in court.

Now this ballgame is being played, at enormous expense, not just in Fort Worth, but simultaneously in San Joaquin and Pittsburgh. (The case in Pittsburgh is slightly different, because ECUSA there has not---yet---inserted itself as a party in the lawsuit. Instead, it is playing the game through a proxy---which is nothing other than the group which is claiming to be the diocese that didn't leave. More on that in a minute.) At some point the courts will have to decide just which entity in each case is the legal diocese. In doing so, they will look at two main things.

First, they will look for any custom or practice that establishes an unwritten rule that dioceses of ECUSA are not free to amend their governing documents as they wish. As already noted, they will find a ready counterexample in what happened with the Southern dioceses during the Civil War.

The second thing they will look at is whether ECUSA has followed its own Constitution and Canons to go through the steps required to create a lawful Diocese of its own in place of the one that has left. That inquiry will be over as soon as the court learns that General Convention does not meet until July 2009. (And because ECUSA will never retreat and admit its mistake, GC 2009 will come and go without any action in that direction as well. Then the courts will have to wait until GC 2012 to see whether ECUSA will act to create a diocese that can be legally recognized as such.)

"No man can serve two masters," said Our Lord and Savior (Mt 6:24). The same is true of corporations: no corporate Diocese can serve two different provinces of the Anglican Communion. It may well be that for its purposes, the Anglican Communion will not want to recognize two different dioceses (or provinces) covering the same geographical area---we shall see what happens in regard to the new North American province. But that decision, when it comes, will have only canonical, and not legal, significance. While there remains only one corporation incorporated as "the Episcopal Diocese of Fort Worth" in the eyes of Texas, that corporation will have the exclusive right to both the name and the property of the diocese, unless and until a Texas court rules that they belong to another. And I have already gone over in detail what ECUSA will have to show for that to happen.

The mess in Pittsburgh is turning out no better; the absence of ECUSA from the lawsuit there changes nothing. But this post has grown long (and perhaps confusing) enough. Pittsburgh deserves its own post, on which I shall start to work as soon as I take a big dose of aspirin.