Why is its "hierarchical" status thereby disproved? The answer is simple, if you think about it: If any Episcopal Bishop (and not just the Presiding Bishop, or a diocesan bishop, but one who has resigned jurisdiction), can swear in a court that "these are the true facts about the Episcopal Church", then there cannot be any true hierarchy. Otherwise, that hierarchy would have clearly specified who the one person is with the authority to speak on its behalf in court---and that person would be able to allege in the pleading that he was the person so duly designated by the organization to speak on its behalf.
But that does not describe our Episcopal Church (USA). As an illustration of what I mean, consider the latest filing by ECUSA of a "complaint in intervention" in the lawsuit brought first by Calvary Church in Pittsburgh in 2003. The complaint is signed and verified (meaning, the truth of its allegations are attested under oath of perjury) by the Rt. Rev. John Buchanan, resigned bishop of West Missouri, who recently left his post as Assisting Bishop in the Diocese of Texas to become a "provisional bishop" for those seeking to remain Episcopal in the former Diocese of Quincy, and who is also the Parliamentarian for the House of Bishops. Now, who designated Bishop Buchanan to speak on behalf of the Episcopal Church (USA) in Court?
All we have to go on is this statement in a declaration filed by Bishop Buchanan in support of the motion for summary adjudication currently under consideration in the San Joaquin lawsuit (emphasis added):
In 2008, the Presiding Bishop of the Episcopal Church asked me to serve as an advisor and testimonial agent for the Church in litigation involving disputes with persons who have left the Church.
And thus we go from "advisor and testimonial agent" to a "representative authorized to speak in court on behalf of the Episcopal Church (USA) as a whole." How and when did this happen? When did General Convention specially meet to appoint this person, and under what authority delegated to it by its member dioceses? And even if they were to have done so, there could be no authority granted to the spokesperson to misrepresent in court their own Constitution and Canons.
Listen to the words of Bishop Buchanan, as he has sworn to them under penalty of perjury in the latest complaint filed in the name of the Episcopal Church (USA):
16. The next level of the Church's organization and governance is the diocese. A diocese may be formed only by action of the General Convention, and only with an unqualified accession to The Episcopal Church's Constitution and canons. The governing body of each diocese, generally called its "Convention," is a legislative body comprised of clergy of the diocese and laity elected by their congregations. Each diocesan Convention adopts and from time to time amends its own diocesan Constitution and canons that supplement and may not conflict with the Church's Constitution or canons. . . .
"Next level of organization and governance"? The Episcopal Church (USA) is not organized into, and does not govern by, "levels". General Convention has no authority either to form or to govern a Diocese in any State, but only to consent to its admission to Convention once it has been formed as an entity under a given State's laws. Nor does General Convention have any authority to govern an individual parish.
The Church itself, as it so often must acknowledge in its pleadings in court, is an "unincorporated association." Such an association is made up in law of members. And in the case of ECUSA, those "members" of its association are the respective dioceses.
An association does not "govern" its members. The members themselves make up rules to govern their operation, and in that sense they govern themselves. They can change the rules by which they govern themselves at any time, in accordance with the rules theretofore adopted.
Another legal principle that describes an unincorporated association is that it is voluntary. The United States Supreme Court held in the case of NAACP v. Alabama that the "freedom of association" was a fundamental right secured by the First Amendment (although not in so many words). An association is formed by contract---by people coming together and agreeing to abide by the rules for their operation. The fundamental "freedom of contract" means that members may join and leave the association at any time, of their own free will. In fact, it has been held by courts that it is unreasonable as a matter of public policy for an association to place any absolute restriction on the right of a member to withdraw from it. In light of these legal principles, look at what Bishop Buchanan tries to tell the court:
22. Under the Church's Constitution, canons, and polity, no diocese or parish may unilaterally divide, separate, or otherwise disaffiliate from the Church.The Constitution and Canons of the Church say no such thing, as ably and exhaustively explained last year by Mark McCall in a thoroughly researched and well-documented paper on that very point. And Bishop Buchanan's saying it is so cannot countermand two hundred and twenty years of Episcopal history.
Bishop Buchanan again misrepresents the Canons to the court when he asserts:
21. Canon I.17(8) of The Episcopal Church applies to all officers at each level of governance and requires 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."
The canon in question does not apply "to all officers at each level of governance"; it applies only to lay positions "in this Church", i.e., to persons such as ECUSA's Treasurer. It does not apply to bishops, because they are not "laity" (the Canon is entitled: "Of Regulations Respecting the Laity"). Nor does it apply even to parish vestry members, because theirs is an office in that particular parish, and is not an office "in this Church". As already noted, ECUSA has nothing whatever to say about who serves on parish vestries. Its Canon on the subject (Canon I.14) is full of nothing but legal platitudes which recognize that parish vestries and their members are appointed and serve in accordance with the canons of the diocese, and the laws of the State, in which they are situated. In other words, they are completely beyond the reach of any canon enacted by General Convention.
Bishop Buchanan's complaint is replete with more inaccurate and incorrect assertions about ECUSA, its Constitution, its Canons, and its polity. Indeed, if one struck from the complaint all of its surplus conclusions of law, in order to find out just what actual facts it alleges, there would scarcely be anything left!
Moreover, the filing of the complaint at this time is a giant red herring. I already discussed the ramifications of the impending complaint, and why it was being filed at this time, in this post, to which I would refer the reader for some (nautically described) essential background to the current dispute. The real matter to note is that a hearing will be held before Judge James in the Pittsburgh litigation on May 27. Its subject, however, has nothing to do with what is alleged in Bishop Buchanan's complaint. The subject of the hearing is the meaning and application to be given to the first paragraph in the stipulation which the parties signed to settle the Pittsburgh litigation in October 5. That paragraph reads in its entirety as follows:
1. Property, whether real or personal (hereinafter "Property"), held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter "Diocese") for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held or administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. For purposes of this paragraph, Property as to which title is legitimately held in the name of a parish of the Diocese shall not be deemed Property held or administered by the Diocese.
Now I have already examined at length the arguments made by the opposite sides about the meaning of this paragraph, in this post. Suffice it to say here that Calvary Church and its supporters, including Bishop Buchanan in the name of ECUSA and the current group under the Rev. Dr. Jim Simons which claims to be a legitimate diocese of ECUSA, argue that this language required the diocese which Bishop Duncan headed always to remain in the Episcopal Church (USA). They argue that the words "property . . . held or administered by the Diocese of Pittsburgh . . . shall continue to be so held" implied a stipulation by the Diocese also to remain in the Church because of their addition to the name of the Diocese, in the stipulation, of these eight words: "of the Episcopal Church of the United States of America". To which Bishop Duncan and his supporters reply: "Those eight words were descriptive in character, not prescriptive. At the time we signed the stipulation in October 2005, it was only accurate to call us a Diocese 'of the Episcopal Church of the United States of America', because we were such a diocese. But there is nothing in the language of that paragraph that says the Diocese agreed that its description could not change."
It seems obvious to me that the subject of the paragraph is how property shall continue to be held by the Diocese, and not what the Diocese itself shall continue to be. In their most recent brief filed in support of their reading of the paragraph (CAUTION: 86-page .pdf download required), Calvary, ECUSA and Dr. Simons' group claim that the other side made judicial admissions in subsequent pleadings, which conceded their interpretation of the language. They also argue that Pennsylvania law requires that property once acquired for religious purposes must always remain with the denomination that acquired it.
The argument regarding "judicial admissions" seems to me a non-starter. In its petition filed in December 2006 to have the court enforce its reading of the October 2005 stipulation and order, Calvary Church had pled that Bishop Duncan and his Assistant, Bishop Scriven, were "in violation of the Order" for having "taken the final steps in a long-standing plan to extinguish any and all ties and duties of the Diocese, in respect of the Property, to TEC and its constituents." To which Bishop Duncan's attorneys quite reasonably replied:
The allegations set forth in Paragraph 2 of Plaintiffs' Petition contain conclusions of law to which no response is required and are otherwise denied. By way of further response, no action has been taken contrary to or in violation of the Stipulation and Order of Court by or on behalf of the Episcopal Diocese of Pittsburgh (hereinafter "Diocese") with respect to the estate, real and personal, which it holds or administers for the beneficial use of the institutions and parishes in the Diocese (hereinafter "Property"). The Diocese is a constituent member of The Episcopal Church of the United States (hereinafter "TEC"), has not withdrawn from TEC, and continues to be a constituent member of TEC.
Now Calvary and its supporters pounce on the "further response", and claim: "Aha! You see! By alleging that the Diocese had not yet withdrawn from TEC, Bishop Duncan judicially admitted that the Stipulation and Order requires the Diocese to remain in ECUSA!"
There was no admission of any such kind. The allegation was made in response to Calvary's one-sided reading of the Stipulation, and merely pointed out that, even under that reading, there had been no "violation" because the Diocese was still (at that time) a constituent member of ECUSA. It's a pretty good trick when you can take an opponent's meeting your arguments on their own territory as an admission that the opponent is thereby conceding the territory.
In arguing for an "implied trust" imposed on property held by hierarchical religious organizations under Pennsylvania statutory law, Calvary's final ground for claiming the Diocese is in violation of the Stipulation and Order in effect brings into issue the very point which the court expressly postponed for later. In arguments before the Court on April 17, the parties agreed on the need for a further hearing to be set by the court, and stipulated the issue to be addressed at that hearing as follows:
The parties dispute whether a diocese may validly withdraw from The Episcopal Church ("TEC"). The Court will reserve ruling on this issue and not take evidence on that issue at the hearing to be scheduled for a blank date.At that hearing, the Court will take evidence and hear argument as to the following issue: Assuming arguendo for the purposes of such hearing that the withdrawal of the Diocese was valid, has the Stipulation and Order of October 14, 2005, been violated in regard to property subject to Paragraph 1 of said Stipulation and Order? And if so, what should happen to said Paragraph 1 Property?
Calvary's third and final argument, accordingly, attempts to bring in by the back door what it agreed would not be addressed at the hearing. It contends that the defendants violated the October 2005 stipulation and order by taking the Diocese out of the Church, because under Pennsylvania law (independent of the stipulation!) property once given to or acquired by a (hierarchical) religious denomination must always remain with that denomination. This argument obviously requires the court to address the hierarchical nature of ECUSA---a point expressly left to another day.
I have to confess to being a little weary of knocking down the same old tired arguments over and over and over again. The problem is that ECUSA and its supporters have gotten a few courts, without really examining the underlying issues involved, to agree with them about what makes a church truly "hierarchical". And having obtained some decisions to cite, they march into court again and again to ask that it simply be taken as a matter of law---not open to dispute from their opponents---that ECUSA is "hierarchical". Where the premise has been fully examined, as it was in Virginia, it does not stand up in court. But where the courts simply glide over it, and accept it as beyond any dispute, there is one and only one conclusion that follows: ECUSA is "hierarchical", so it owns all the property; you may leave it, but you may never take any property with you.
Let us hope that Judge James will be among those who do not swallow ECUSA's arguments hook, line and sinker. Or, to revert to my earlier nautical analogy, let us hope that he is enough of a sailor to be able to tell a longboat from a frigate.