Tuesday, April 21, 2009

To Whom It May Concern (I)

The Episcopal Church (USA) enjoys today a considerable momentum in American courts, chiefly in cases involving parishes that elect to leave their diocese. The success that momentum has brought to date may have made the Church increasingly careless, however. In implementing its current litigation strategy against the departing dioceses, it is making assumptions as to its structure and polity which it may not be able to defend.

The assumptions stem from an earlier time, when the Church was rarely to be found in the courts as a matter of its own initiative. With the withdrawal now of four separate dioceses from the Church, the latter is finding it necessary more and more to come into court as a plaintiff, and to assert its rights as a “hierarchical” organization, even as the departing dioceses demonstrate with their feet that such is not the case.

In fact, the Episcopal Church (USA) never has been a “hierarchical” organization, in the sense that the Roman Catholic Church is. In the first place, the Church has no Pope or his equivalent. Its Presiding Bishop, although bestowed by the Canons with the title of “Primate”, is not a Primate with the powers that position carries in other churches of the Anglican Communion. The authority of the Presiding Bishop derives entirely from that of the House of Bishops, of which that person is the chair---hence the adjective “Presiding”. The only body over which the Presiding Bishop regularly presides is the House of Bishops---and General Convention, when there is the rare joint session of both Houses. Since General Convention exists for only two weeks out of every 156, however, and joint sessions of both Houses last for at most just 2-3 hours out of the 336 during which a General Convention may be said to exist, it is a ludicrous exaggeration to claim that the Presiding Bishop "presides" over the whole Church, in the sense of governing it like a Chief Executive.

It is also highly debatable that the Presiding Bishop possesses the authority, all by herself, to decide what to say on behalf of the Episcopal Church (USA) when it makes an appearance in court. Still less does she have the express authority granted to her by any Canon to formulate and carry out an overall litigation strategy that is directly contrary to the positions of the various dioceses which make up the actual membership of the Church.  The analogy would be a little bit like this: under the United States Constitution, the Vice President is the presiding officer of the Senate when he is present. Imagine, however, if the Vice President as President of the Senate were to go into court and claim that in that capacity, he had the authority to represent the position of the United States as a whole. Or imagine if he were to hire a personal attorney and then together with that attorney, formulate an overall litigation strategy for cases in which the United States was a plaintiff.

Such a position would be ridiculous, right? Yet it is no more ridiculous than what the Presiding Bishop is claiming the authority to do on behalf of the entire Episcopal Church (USA). Under the Canons, the Presiding Bishop is 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 General Convention." (Canon I.2.4(a)(1); emphasis added.)

Thus the Presiding Bishop develops and initiates policy and strategy for relations within the Church; but the Presiding Bishop has authority to speak "for the Church" (i.e., to outside parties and third persons, such as a court of law) only when she is carrying out "policies, strategies and programs" that have previously been authorized by General Convention. Yet General Convention has never authorized the current litigation strategy that has led to the spending of simply enormous sums---over $4 million in the last year alone!---on lawsuits against departing churches and dioceses; the last budget approved by General Convention 2006 allocated just $100,000 per year for such expenses. Yes, the increase in the expenditures was authorized by the Executive Council, but the authority of that body is defined by Canon I.4.1 as "to carry out the program and policies adopted by General Convention." (Emphasis added.) And when it votes to spend money, the Executive Council is acting as the Board of Directors of the Domestic and Foreign Missionary Society (DFMS), which is the corporate arm of the Church that holds all of the money, property and other assets. In that capacity, Canon I.4.3(f) provides (italics again added):
In its capacity as the Board of Directors of The Domestic and Foreign Missionary Society, the Council shall have the power to direct the disposition of the moneys and other property of said Society in accordance with the provisions of this Canon and the orders and budgets adopted or approved by the General Convention.
Jumping the budget for litigation by over 1,560% from the amount last approved by General Convention does not sound to me like carrying out a program or policy "adopted by General Convention." This is particularly the case where the Church has voluntarily chosen to come into court as a plaintiff, and initiate the lawsuits. Such decisions are discretionary; it is not like the case when the Church has been sued and is a defendant, with no choice but either to answer or suffer a judgment against it by default. 

Such is the current state of the Church, however, that the entire Executive Council believes it has the authority to authorize the Presiding Bishop---no, wait; that is an incorrect way of stating the matter. I shall start again. Such is the current state of the Church, however, that the Presiding Bishop believes she has the authority to commit the Church to spending over $4 million in excess of the approved budget for litigation, and the Executive Council, in its capacity as Board of Directors of DFMS, rubber-stamps her actions after the fact without question, and without any apparent dissent. A proper regard for their authority as conferred by the Canons would suggest that they might have to seek prior authorization from the entire General Convention before approving such enormous expenditures in pursuit of what is a highly risky litigation strategy.

The Church is out of control. There are no longer any operative checks or balances in its polity. The Presiding Bishop is bent on a scorched-earth policy that commits enormous resources to outspending its opponents in court; the Executive Council passively goes along with her scheme, and General Convention, when it does finally meet, will be presented with a fait accompli that no one will be able to challenge or question. The parallels with the current out-of-control spending by our federal government are not exact, but they are similar: in each case, a supposedly democratic polity is being trampled under the stampede of a majority that wants to ensure it remains in power.

In the second part of this post, I shall explain, using the recent events in Fort Worth, how the Presiding Bishop's single-minded strategy translates into actual steps on the ground that are, to the utmost degree, risky and questionable. Episcopalians of all stripes may want to take heed. 


  1. Mr. Haley, your analysis is spot on.

    In thinking about the Presiding Bishop's distortion of TEC's polity, I find it helpful to compare her to the CEO of a corporation whose Board of Directors is entirely under his domination, and whose stockholders are unorganized and inert.

    For example, consider General Motors. For nearly 20 years the recently fired CEO (Rick Waggoner) presided over GM's loss of much of its market share, discontinued GM's pioneering electric car model, and focused GM's production on gas guzzling large SUVs. Moreover, for much of that time GM lost money on its car manufacturing operations and was profitable only because it financed purchases of its products and made money on its financing operations. Throughout it all the Board supported its CEO without reservation, and the stockholders were quiescent. Those decisions left GM poorly positioned when gas prices soared last year, followed by the current recession.

    I submit that TEC is now operating a lot like GM operated for the past 20 years. TEC is losing members rapidly, and the inability to generate enough cash to pay expenses from pledges affects more parishes and dioceses each year. Fiscally, a few lucky parishes and dioceses, and the DMS, stay afloat by increasingly spending their respective trust accounts' corpus to pay for operating costs, including the litigation.

    Clearly, TEC's situation is not sustainable. Yet, as with GM, unless the "stockholders" of TEC revolt and depose the management, I see no way for TEC to require the Presiding Bishop to change her policies.

    Here the analogy with GM breaks down. GM's stockholders theoretically can depose the board; every share has a vote. Unfortunately, TEC's polity effectively disenfranchises most ordinary parishioners from voting on anybody "higher" in TEC's structure than their vestry. Given that polity, I see no way for TEC's "stockholders" to revolt by using their limited franchise, even if they wanted to. They can stop pledging, or leave TEC altogether, which they are already doing.

    TEC's polity actually creates a very strange entity: a hierarchical non-hierarchical church. TEC is hierarchical, in the sense that the parishioners elect the vestry, the vestry elects the delegates to the diocesan convention, who in turn elect the delegates to the General Convention. At each stage of that process, the clergy and bishops influence who is nominated and elected. Of course, at General Convention the bishops have their own house and are accountable, if effect, to no one. Inasmuch as even the House of Deputies is at least three "levels" of selection removed from the parishioners, I think that TEC's polity is, in that sense, truly hierarchical.

    Yet, as your posts point out, TEC's vast superstructure actually has very little power over anything other than itself, and none at all over dioceses. In that sense, TEC is not hierarchical at all.

    Hopefully, the courts will make this distinction in the approaching litigation. Perhaps the courts cannot control the Presiding Bishop's spending if TEC's member remain passive, but the courts can control her claims to be a metroplitan who can set depose and create whole dioceses at will, and in violation of TEC's own canons.

  2. Mr. Haley, you wrote: "Jumping the budget for litigation by over 1,560% from the amount last approved by General Convention does not sound to me like carrying out a program or policy 'adopted by General Convention.'"

    Others might say that it does in fact carry out the Dennis Canon, by which General Convention adopted or confirmed or asserted a policy of denominational control over parish property.

  3. Publius, thank you for those comments, which add greatly to what I posted. You and I are in agreement that what is going on in ECUSA today simply mirrors what is going on in our larger society. In fact, this post over at BabyBlue's Cafe demonstrates that the leadership at 815 now has delusions of having (proportionately, anyway) as much money at its disposal as does the Obama administration. No doubt it will be just as responsible a steward of that with which it has been entrusted.

    DavidH, you might have a point if General Convention 1979 had done a better job of documenting the passage of the Dennis Canon, and publicizing it to all the parishes afterward. But as I have discussed in this post, neither was the case. Moreover, you have the recent spectacle of Bishop O'Neill of Colorado testifying under oath in court that "no one expects church members to know much about the canons."

    It hardly seems to me, therefore, that what is going on is a case of the PB and 815 simply implementing a policy that General Convention consciously and deliberately adopted. It is rather a case of her Chancellor's having sold the PB on a bill of goods which principally redounds to the economic benefit of his law firm. I would ask that you consider returning when I put up the next installment---I would be very interested in your views of the strategy that is being implemented.