Time for a Reality Check

The Episcopal Church (USA) is currently living a paradox. On the one hand, it is taking a stand for secular justice and civil rights---such as supporting women's ability to choose abortions and supporting the ability of gays and lesbians to be married, to say nothing of the Millennium Development Goals. But on the other hand, it is ignoring secular law and the rights of majorities when it comes to the identity of its dioceses. Like many successful people (including recent Cabinet nominees), ECUSA picks the parts of the law it likes or can use, and acts as though the rest did not apply to it.

As the Old Testament bears witness, man has never had a sterling record when it comes to observing the law. Time and again, Israel would stray from the Torah, only to suffer calamity, defeat and dispersion. A prophet or two would emerge to summon the nation back to full observance and obedience, and for a time things would be well again. But then a new generation would become strangers to the Torah, and the cycle would begin anew.

Currently the leadership of the Church is on a concerted campaign to ignore or evade certain consequences of the secular law, which the leadership cannot bring itself to accept. I am speaking of what the Presiding Bishop and the Executive Council are doing with regard to the people and churches who remain behind after a diocese has voted to disaffiliate. They are choosing to ignore the legal realities, and are insisting that ecclesial, or canon, law is all that matters.

What their approach ignores is that dioceses of the Church have a dual existence: they are, at one and the same time, creatures of both the canon law of the Church and of the secular law of the State. The first brings the diocese into existence as a matter of contract---in effect ECUSA contracts (through its Constitution and canons) with the people organizing the diocese that if they agree to such and such terms, the Church will treat them as one of its dioceses. Certain rights and benefits accrue to the diocese by contract, as a result: it can elect a bishop and have him or her consecrated, and then be entitled to a seat and voice in the House of Bishops; it can elect deputies who will have the right to seats and votes in the House of Deputies at General Convention, and so forth. All of those features of diocesan existence are brought into being as a matter of contract between the Church and the group forming the diocese. The terms of the contract are bilateral---they are expressed on the Church's side by its Constitution and canons, and on the diocese's side by its constitution and some of its canons. (The other diocesan canons establish in a similar way the contract relations between it and its member parishes, as well as between it and its clergy.)

But a diocese has a secular existence under the laws of the State(s) in which it is located. A diocese can be a corporation in the eyes of the secular law, or it can be a voluntary association, without a corporate structure. In this sense the diocese is not a creature of contract, but of statute. It has to adopt articles and (if it is a corporation) file them with the Secretary of State, whereupon the State, its officers and its courts will recognize the entity's separate legal existence.

Think of it for a moment as you would think of a McDonald's franchise. The parent company establishes a new outlet in a given town or city by entering into a franchise contract with the people who are to be the local outlet's owners. The contract spells out what they have to offer to the public, where they have to buy it, what the employees have to wear, what the outlet will look like, and a thousand other details. 

Now the national McDonald's could simply enter into a franchise contract with a bunch of individuals and start treating them like one of its outlets, but it would never do that. Why not? Because by insisting that the local owners incorporate, a number of additional benefits are gained: instead of a bunch of individual signatures on the franchise, now there is just a single signature representing the local corporation or other entity that holds the franchise. If there is a breach of the contract, the national McDonald's has just one person to sue, instead of having to go chase a bunch of individuals. They deal with just a single entity, which owns or leases the local site of the outlet, which places the orders and is responsible for paying the invoices, and---best of all---whose existence as a corporation is permanent. (If the owners die or want to sell, the shares can be passed on to others without changing the corporation; it goes on as before.)

In our local town, we had a popular school lunch spot that started out as an A & W Root Beer franchise. It stayed as that for years, but then one day---either under new owners or the original ones, I am not sure---it was no longer carrying the A & W logo, but was called just "Big A". It still served frosty mugs of cold root beer, and hamburgers with fries---and a whole lot of other items that it had never offered before, as well---but it was no longer A & W's root beer, fries, or hamburgers, since those supplies were now purchased from another source.

Did A & W sue the local franchise, to take back the property? No---it didn't own it to begin with, and its franchise contract gave it no right to assume ownership of the property if the local owners did not renew the franchise agreement. Did A & W claim that prior generations of its customers had all contributed to the profits of the franchise, and so it had a "fiduciary obligation" to see to it that the local outlet continued to remain in the A & W family? Again, no, it made no such argument. It simply went down the street and granted another franchise to a competing outfit. So now we can choose to have either A & W's root beer, or Big A's---as the January 1846 Punch first memorably expressed it, "You pays your money and you takes your choice."  

Now my point here is not that an Episcopal diocese is the equivalent of an A & W or McDonald's franchise---it is something more, obviously. But just like such a franchise, it is a creature both of private contract law and secular statutory law. The former lets it hold itself out and act as a diocese of the national Church; the latter lets it hold title to land and accept gifts and bequests of money and property. Without the latter ability, it would be useless to the national Church as a diocese.

But here is another respect in which there is a parallel between the national Church and its dioceses, and the national A & W brand and its many outlets: unless the corporate A & W owns the land on which the local franchise sits, and leases it to the outfit that operates the franchise, it has no right to claim the local property from the franchise if it decides to disaffiliate. It did not pay for that property, and so no local owner in his right mind would sign a contract agreeing to turn over the property to it if he ever decided to pull his affiliation with the national brand. 

So what is different about the Episcopal Church (USA)? Unlike A & W, it does claim to have a contract with the diocese that gives it such a right. But what kind of contract? It is not in writing; the language of the Dennis Canon applies only to property belonging to parishes, and not to property belonging to dioceses as such. No, the contract it claims is an implied one, meaning that "it was understood between the parties" (but not written down) that such would be the case.

This position presents all kinds of problems for the secular law, as you might imagine. For one thing, the law since 1677 has had what is called a Statute of Frauds, and which requires that any interests in land be created only by a writing---something that is written down and signed by the person whose property is subject to the interest. The Episcopal Church (USA) thinks it can ignore the Statute of Frauds; it is not clear to me why, or how. The one thing that is a fact is that to date, no court anywhere in the United States has ever upheld a trust in favor of the national Church in the property owned by a diocese (as opposed, again, to property owned by an individual parish, where some courts have given effect to the Dennis Canon). 

The Statute of Frauds came into being precisely because people were bribing "witnesses" to come into court and swear that years ago, they heard Joe Doakes say that he was giving his land to Sam Smith in trust for Tom, Dick and Harry Jones. Meanwhile, Joe Doakes' son, or heir, could not come up with any counter testimony, and could not prove his father did not ever say any such thing (because maybe he wasn't born yet, and didn't know anybody that old), and so lost the land to Tom, Dick and Harry. Requiring that Tom, Dick and Harry offer into evidence a trust deed in writing, signed by Joe Doakes himself, put an end to fraud based on oral testimony, hence the name "Statute of Frauds."

The case of the Episcopal Church (USA) against its former Dioceses of San Joaquin and Pittsburgh, and no doubt soon against Fort Worth and Quincy as well, is constructed out of something just as unreliable as ancient verbal testimony. The Church wants the court to examine the old petitions filed by those who first requested General Convention to form a missionary district, and then later to admit the district as a newly formed diocese. Some (but not all) of those petitions contain language that the district or diocese accedes to, or recognizes, ECUSA's Constitution and canons. 

That may be all well and good, but that Constitution and those canons have never contained, as I say, any specific language to the effect that "all property of the diocese shall revert to the national Church" in the event the diocese chooses to disaffiliate. So acceding to them does not amount, in law, to a declaration of trust with respect to the property. All that ECUSA can argue is: "Well, that's what the parties meant at the time."

The same is true of ECUSA's argument that "acceding" to the national Constitution means forming some kind of irrevocable union that can never be dissolved. That is not the plain and common-sense meaning of "to accede", which simply means "to consent", "to agree to abide by".  To "consent" or to "agree" is not the same as "to consent irrevocably", or "to agree forever and for all time". Words of such permanence have to be expressed in writing in order for courts to give them effect. (Again, the Statute of Frauds has something to say about contracts that run for more than one year---they too have to be in writing, just like contracts creating interests in real property.)

Eventually, ECUSA's arguments will have to come before a court, and be weighed based on the evidence that ECUSA can offer. In the meantime, however, ECUSA is proceeding as though it has already won the case. It is treating the people remaining behind in San Joaquin, Pittsburgh, Fort Worth and now Quincy as though the secular entity---the diocese in the eyes of the law, not in the eyes of the Church---had not voted to leave, but only its officers and members had. 

Such conduct denies the reality of what actually happened. Again, suppose we were not talking about a diocese of the Church, but an A & W franchise. The local owners of the franchise get together, and a majority of them vote to pull out, and not to renew the franchise. The national company could certainly grant a new franchise contract to the dissenters, and they could open a new restaurant. But that is not what the Church is doing. It is acting as though the dissenters were still the original entity that signed the original contract---as though the minority owners of the original franchise constituted the whole corporation. Such a pretense refuses to regard the majority and the entity they still own as a legal entity---indeed, as the same legal entity that signed the original contract, with the same corporate seal, corporate minute books, and corporate bank accounts as it had all along. 

Again, the Church may do what it likes, but the law will not play along, absent a written contract that says what the Church is claiming are the facts. At this point, by treating the minority that remains as the true diocese, the Church is acting like the franchise owner who contracts with a bunch of people who have not yet organized themselves into an entity the State can recognize in the law. It is not the best thing to do.

(To be more precise, because this is important: those remaining behind may well have organized themselves into a legal association or corporation which the law can recognize, and the Church may also have entered into a contractual relationship with them, whereby it gives them money and support, including a bishop, and even lets them elect deputies whom it will recognize at the next General Convention. But none of that makes that local entity into a true diocese of the Church. The reason is that by the Church's own Constitution, dioceses have to be admitted to the Church by General Convention---and General Convention has not met yet to be able to do any such thing. Saying something is a "diocese" does not make it so, if the Church has not followed its own Constitution.)

So the national Church is currently in the rather contradictory position of asking the courts to enforce part of its Constitution for one purpose (reading the accession clause to mean that dioceses cannot leave), but not for another (reading the same clause to mean that dioceses can be admitted and recognized only by General Convention, and not by the Presiding Bishop or the Executive Council acting on their own). The legal entities that have left---unincorporated associations in the case of San Joaquin and Pittsburgh, and a corporation in the case of Fort Worth---are still around, and still have the same legal existence under State law that they had before the split. They have the same bank accounts, the same diocesan offices and officers, as they had before the vote to leave. So why should the law not recognize them as what they are?

"Ah," the Church says, "but you see, people may leave a diocese, but a diocese cannot leave the Church." 

"And where in your Constitution does it say that?" asks the court. 

"It's right here, in this clause that requires dioceses to make an unqualified accession in order to join. And by 'unqualified', we meant 'irrevocable', and the dioceses so understood it." 

"But 'unqualified' means 'without reservation', not 'irrevocable'," replies the court. "The two words are not the same thing. If I accede to your authority without any reservations, it means I agree to obey you fully while I continue to agree to obey you, but it does not mean that I agree to obey you forever. To mean the latter, I would have to agree to accede to your authority permanently, or irrevocably, or for all time, or some such similar words showing an intent to bind not just myself, but all my successors, heirs and descendants forever. To make that kind of permanently binding contract, the law requires that the language say much more than just 'without any reservations.'  The difference is between specifying the subject areas in which you agree to be subservient, and the duration of time the agreement will be in effect. The two are by no means equivalent, at least as far as the law is concerned."

Words in the law have a purpose, and words used in a contract have to be understood in their plain and ordinary sense. Otherwise contract law would become chaos, with one side interpreting a word one way and the other side interpreting it as meaning the opposite, or something entirely different. This is not to say that the words of a contract are never ambiguous; they frequently are, and that is why there are lawsuits. But "unqualified" is not an ambiguous synonym for "irrevocable"---look it up. The two words have different meanings, and are used in law for two different purposes, as my little imaginary dialogue above illustrates.

I realize my argument will not convince the leadership of ECUSA, nor their attorneys, nor those who support them and want to see them prevail in court. But that is not my purpose in posting this; it will be up to the courts to make their decisions about who has the more convincing argument. My purpose, rather, is to lay out the case so that those who are not lawyers may have a better understanding of the issues that are at stake. If what lay people read here makes them ask questions, and go into court and see what their gifts and donations are being spent on, then it will have served its purpose. I see no analysis or discussions like this on the other blogs that I follow from all over the spectrum, and that is not comforting. For either I am way out in left field, or else an awful lot of people are not being told what they need to know in order to be ready for what will eventually come. The potential for confusion is great, and the issues are not being addressed.