Saturday, May 16, 2009

Alarums and Excursions in Pittsburgh

The Episcopal Church (USA) is the only "hierarchical" church that I know of which can come into a State court and claim it is whatever the Bishop who happens to verify the facts alleged in the lawsuit wants it to be. Said another way, the Episcopal Church (USA) is the only church I know of whose "hierarchical" character is disproved every time it comes into court and files an initial pleading (whether as plaintiff, or as defendant) in which (among other things) it claims to be "hierarchical". 

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.  



  1. Whether you've appointed a single spokesperson / registered agent / pleading verifier is a test for hierarchical-ness? We've left all common meanings of the word behind, I see.

    Most of the post is based on contentions you've made in the past that (i) the PB is not authorized to pursue the lawsuits, (ii) in various instances related to the diocesan lawsuits, the Constitution and Canons have been violated, and (iii) TEC is not hierarchical.

    I think (i) is questionable at best. If the Dennis Canon reflects the policy of General Convention, the PB may well be authorized to take action in court to enforce it.

    I agree with (ii) in some circumstances, but the instances you choose to discuss are not examples of violations and misrepresentations.

    - Paragraph 16 could be read without any distortion or difficulty to reflect 815's view that an Episcopal diocese is only an Episcopal diocese so long as it remains in TEC. In that case, its second sentence is entirely accurate. You're taking issue with it because you have a different focus with respect to the identity of a diocese.

    - Likewise, you have a different view of TEC's polity than 815. It is unsurprising therefore that you disagree with paragraph 22.

    - Re paragraph 21, why is the vestry not an office in TEC? You assume it; you don't explain it.

    The point is that all of these instances are disagreements about how to read the relevant facts and texts. That doesn't make them misrepresentations by either side.

    I have no disagreement with you about the Pittsburgh stipulation. It has always seemed dubious to me that the Pittsburgh litigation would be resolved on the basis of that stipulation.

    You are entirely incorrect in your remark about Virginia. The whole point of the Virginia litigation so far is that it was resolved entirely based on Va. Code 57-9. The trial court made no findings one way or the other about TEC's hierarchical-ness. In fact, because subsection (A) of 57-9 applies to hierarchical churches, arguably the Virginia litigation thus far continues to support the principle that TEC is hierarchical.

    Finally, it must be said that your weariness paragraph conflates two important and distinct questions: Is TEC hierarchical for the purposes of parishes vs. dioceses and TEC, and is TEC hierarchical for the purposes of a diocese vs. TEC? You obviously know the difference, but you overlook the implication for your weariness paragraph. Diocesan property litigation (meaning TEC vs. dioceses) is a new phenomenon. The recent scholarship about TEC's hierarchical-ness is geared toward that new phenomenon. It does not undermine the hierarchical-ness conclusions reached uniformly by numerous courts in the traditional instance of parish property litigation.

  2. From your comments, DavidH, one would think you misunderstood me! :>)

    In a hierarchy, there is a well-defined structure of authority that defines who is authorized to speak for the Church in court. There may be Catholic bishops who do not feel strongly anti-abortion, but you will never see one in Court saying that the Church has no position on the subject. But in the Episcopal Church, you have the Presiding Bishop on her own---and without any authority in the Canons---refusing to recognize a valid Standing Committee, and then claiming to “recognize” a newly formed “diocese” without any action on the part of General Convention. So the fact that she can also appoint a bishop to speak for the Church in court means one of only two things: (a) the Church is hierarchical and she is its metropolitan; or (b) the Church is not hierarchical, and the position of spokesperson is up for grabs, depending on who is speaking.

    The Dennis Canon was never adopted in San Joaquin, Washington, and a number of other Episcopal Dioceses which were part of the Church before its enactment, so there can hardly be derived any type of General Convention national “policy” with regard to it. Moreover, the Dennis Canon does not apply to the property of Dioceses, so none of the lawsuits brought by TEC against former dioceses is in furtherance of any such “policy”, even if General Convention were to enact one.

    General Convention does not form Dioceses, period. Dioceses have to exist separately under a State’s laws before they are legally capable of becoming a member of ECUSA’s unincorporated association. It is not a matter of “focus”, it is talking about the way in which any entity has to be legally formed before it can exist. Paragraph 16 is not an accurate statement either of the law or of the functions of General Convention; it gives the false impression that Dioceses are its creations. They are not---just ask the Diocese of Virginia, or the Diocese of New York, or the Diocese of Pennsylvania!

    Withdrawing from an unincorporated association is again not a matter of “polity”. ECUSA is not a governmental body or nation, like the United States. It is, once again, nothing more and nothing less than an unincorporated association of member Dioceses. To say in the same complaint that “the Episcopal Church in the United States of America is an unincorporated association” and that “Under the Church’s Constitution, canons and polity, no diocese . . . may unilaterally . . . separate, or otherwise disaffiliate from the Church” is to engage in a contradiction of legal terms. The essence of an unincorporated association is the voluntary nature of its association. If it is a group that one can join but never leave, then it is not an unincorporated association---and certainly not one organized at common law, and not pursuant to the legislation of any State. It has nothing to do with one’s “views” of polity; it has to with the very essence of an unincorporated association at English common law.

    Is the office of mayor of New York City an “office of the United States” because New York City is in New York, which is a State in the United States? If each position on a parish vestry is an “office in this Church”, then why does General Convention, or Executive Council, or any of the employees or staff of ECUSA not have any say about who gets to fill them, and why cannot any of the same entities or persons remove them? I am not “assuming” anything other than common sense: an “office” is a position in an organization that is filled by that organization. Under that plain-sense understanding, vestries are not “offices in this Church.”

    These are not disagreements over facts and reading texts, DavidH. If you say that vestries are “offices in this Church,” or that an unincorporated association is an organization which members may voluntarily choose to join, but from which they may never withdraw, then you have to be defining the words in ways that the law does not.

    It’s funny that you think the hierarchical structure of ECUSA was not an issue in the Virginia case. The reason it’s funny is that here is the very first "Question Presented" by the Petition for Appeal filed by ECUSA with the Virginia Supreme Court (link at this page), according to ECUSA's attorneys (bold added):

    "Should § 57 -9(A) be interpreted consistently with related Virginia statutory and case law that respects the polity of hierarchical churches and with the principle of Constitutional avoidance? (Assignments of Error 1-3.)"

    And here is how the body of the Petition opens, exactly as does Bishop Buchanan’s complaint in Pittsburgh:

    "The Episcopal Church is a hierarchical religious denomination with three tiers of governance. The 'General Convention' is the highest governing body in the Church. It has adopted and amends the Church's Constitution and Canons. These documents contain the law of the Church and are binding on all entities of the Church. . . .
    It is undisputed that under the Church's law, only the General Convention has the authority to "divide" the Episcopal Church and to establish, divide, or release a diocese. . . ."

    And as that quote demonstrates, ECUSA never tires of repeating its “hierarchical” mantra, even in a case involving parishes leaving dioceses. It is not the relationship between the parishes and ECUSA that is hierarchical, but the relationship between the parish and the diocese in which it is located. That is the only aspect of ECUSA that may properly be said to be hierarchical, and wishing or opining it otherwise cannot change the history or the common-sense meaning of the words that define the other relationships.

  3. And from your response, Mr. Haley, it becomes clear that the problem is mutual.

    You repeat that hierarchical-ness turns on whether there is someone authorized to speak for the Church in court. This clarifies that your complaint is one about authority, based on your theory is that the PB is not authorized to speak for TEC in court. That in turn necessarily rests on your theory that the Dennis Canon / asserting an interest in property doesn't reflect a policy, strategy, or program of General Convention. See Canon I.2(4)(a)(1). I find that dubious.

    You then offer the theory that the Dennis Canon has to be adopted in each of the dioceses. I guess that's a variation of the "hierarchy stops at the diocese level" theory?

    Yes, dioceses in/of TEC are formed by action of General Convention. Prior to GC acting, there is a group of people (or association, I suppose, if you prefer) who have gotten organized and petitioned. Your focus is on that group of people or association, and I suppose you can apply the term "diocese" to them. You can't, however, call them a diocese in/of TEC.

    Withdrawal from an unincorporated association is a matter of polity when you're talking about the rights that groups of people have upon withdrawal. That question depends on the meaning of an unqualified accession and on TEC's hierarchical-ness. Again, if you believe that the group of people or association who became a diocese in/of TEC are always only an association, then of course you think that they can leave unchanged. If, on the other hand, you think that a diocese or a parish is more than a group of people or association -- that it's a part of a larger ecclesiastical structure -- then it makes perfect sense to say that even if a majority of the people in a diocese or parish leave, the diocese or parish in/of TEC remains.

    The mayor analogy isn't entirely on point. The federal government doesn't define, even in "legal platitudes," that there shall be mayors or what mayors do. TEC's canons do for vestries, albeit delegating filling just about all the details to dioceses. (This illustrates the differences between TEC's polity and the US's.) There are two different and reasonable readings of "offices in this Church."

    Regarding Virginia, you've changed what you're saying, but that doesn't make what you said originally any less wrong. Of course TEC and the Diocese think the Virginia litigation turns on their hierarchical-ness. But they didn't lose at the trial court because the trial court disagreed with the assertion that TEC is hierarchical. The trial court made no findings at all in that regard, one way or the other. (Read the opinions -- this isn't a matter of different viewpoints about what the opinions mean. Hierarchical-ness simply isn't something the trial court ruled on.) Therefore for you to say that "the premise has been fully examined ... in Virginia" and that "it d[id] not stand up in court" is wrong (or at the very least, badly misleading).

    Finally, you misunderstand my earlier comment about the difference between diocesan property litigation and congregational property litigation. My point was to say that you and McCall admit that there's a hierarchical relationship between parishes and dioceses and that, until the new thing of diocesan property litigation, that's the only situation in which courts had ruled. There's nothing wrong with arguing that all those prior opinions are inaccurate, as applied to the new situation. But it's hardly fair to imply that any of the many courts that have said so were simply "swallow[ing] ECUSA's arguments hook, line and sinker."

  4. I assure you that the problem is not “mutual” from my standpoint, DavidH. I read you, loud and clear. It is just that, as your points come across, they do not seem to be aimed at what I specifically said.

    Let me illustrate what I mean by recapping our first point of discussion. I put up a post in which I suggested that the recent filing by ECUSA in Pittsburgh of a complaint in which it claimed to be “hierarchical on three levels” was proof of just the opposite of what ECUSA claimed. The proof, I said, was in the fact of who signed and verified the complaint in the name of the Church. Was it the Presiding Bishop? No. It was a retired diocesan, who had recently been designated to assist with matters in Quincy. I asked the question: who authorized him to speak on behalf of the whole Church? And I showed proof that he had not been authorized by anybody---or at least, that the most he had claimed under oath was that he had been “requested” to serve as “an advisor and testimonial agent’ in cases involving departing dioceses and parishes---by the Presiding Bishop.

    Your first comment suggested that maybe I was moving the goalposts and changing the definition of what it meant to be “hierarchical.” You also saw no problem with the Presiding Bishop suing on behalf of the Church, because it would be in furtherance of a hypothetical “policy” proclaimed by General Convention, i.e., the Dennis Canon.

    Never mind that I pointed out in reply that the Dennis Canon cannot be involved in Pittsburgh, because the suit is about property held by a Diocese, and the Canon on its face does not apply to such property. In your latest response, you still find it “dubious” that the authority of the lawsuit in question cannot be based on such a policy, because to you, the PB’s authority under Canon I.4.2(a)(1) (“speaking for the Church as to the policies, strategies and programs authorized by the General Convention”) settles the matter. To which I can reply only: “Huh? You have not met my contentions. Not only has General Convention never enacted any such ‘policy’ (of authorizing the PB to sue in its name to enforce the Dennis Canon in court), but any such authorization would not cover the instant lawsuit.” If I have misunderstood you, then I apologize, but there is nothing I find which needs any further response. No Canon, no policy, and therefore no lawsuit. And not only that---no lawsuit, no authority to file it, and therefore, no hierarchy. Q.E.D.

    You take on a different subject entirely when you suggest that it is a “theory” that the Dennis Canon has to be adopted in each of the dioceses to be effective. It’s not a theory; it’s again the English language. If a diocese “accedes” to ECUSA’s Constitution, but expressly does not accede to ECUSA’s canons, then by what language in ECUSA’s Constitution do all of its canons automatically become operative in the Diocese without that Diocese’s consent? The ECUSA Constitution has no supremacy clause, and no provision making the Canons binding in all cases upon the dioceses. In fact the few places where the Constitution does make particular Canons binding (e.g., Art. II, Secs. 4 and 5 [suffragan bishops], Art. IV [standing committees], and Art. VIII [ordination of priests and deacons]) show that they are not regarded as binding on the dioceses generally unless specifically stated. I could cite you literally hundreds of instances in which diocesan canons are contrary to the national canons (including specifically the Dennis Canon), and for good reason: the national canons are not applicable throughout the Church of their own force.

    Your insistence that Episcopal dioceses are “formed” by General Convention misses the thrust of my argument. You concede that they first have to exist under the secular law as a separate entity before they can join the Church, but to you, that event does not count as “formation”, because they are not a diocese of ECUSA until General Convention acts. Fair enough; my point, however, was that for a secular court, it is wrong to imply that the Dioceses are the “creations” of General Convention. It is wrong for the very reason that, historically, General Convention itself was the creation of the original dioceses, and not the other way around.

    You say: “Again, if you believe that the group of people or association who became a diocese in/of TEC are always only an association, then of course you think that they can leave unchanged. If, on the other hand, you think that a diocese or a parish is more than a group of people or association -- that it's a part of a larger ecclesiastical structure -- then it makes perfect sense to say that even if a majority of the people in a diocese or parish leave, the diocese or parish in/of TEC remains.” This misses my point. It is not the people in ECUSA who are its members, it is the dioceses. And as members in a voluntary association, dioceses are in law free to leave the association at any time. Your invocation of “a larger ecclesiastical structure” again tries to appeal to canon law over secular law, and that does not fly in the United States (or at common law). Every church, no matter of what form or structure, has to have a legal existence under the secular law before it can hold title to property and sue and be sued in court. The law allows for churches to be unincorporated or incorporated---associations or corporations---or, possibly also, trusts. There are no other forms of “ecclesiastical structure” recognized in secular law. An association is voluntary by definition; there is no such creature in the law as an “involuntary association”. I can cite you case law holding that the placing of arbitrary restrictions on the right of a member to withdraw from a voluntary association is unreasonable and against public policy; you can cite no authority that there is an exception for religious associations---especially at common law, which is what we are dealing with in the case of ECUSA, since it was never organized under the laws of any one State.

    If you think it is “reasonable” to regard vestries as being “offices in this Church”, then what, pray tell, is a parish or diocesan chancellor? Is their first loyalty, too, to the national church? Can the diocese remove a parish chancellor if he advises the parish on how to leave the diocese? Can the national church remove a diocesan chancellor who represents the diocese in a lawsuit brought by the national church? Again, you simply make up positions that have no objective standards, and without any standards, then anything goes, and vestries are “offices in this Church”.

    On Virginia: I have not changed what I was saying, but I admit to responding to you in different language than I used in the original post. Here is what I said originally: “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.”

    I stand by this statement. ECUSA and the Diocese called two expert witnesses to prove the hierarchical structure of the Church: Dr. Ian Douglas and Dr. Robert Bruce Mullen. Together, they were on the stand for days (roughly, pages 831 to 1155 of the transcript). ECUSA’s argument was that, as a hierarchical church, Virginia’s Division statute could not apply to it because for there to be a “division” within the meaning of the statute, the Church’s highest authority would have to approve the division, and that had not occurred in this case. Judge Bellows specifically rejected that argument, and did so on the ground that he found the CANA experts’ testimony “to be more persuasive and convincing.” (April 3, 2008 letter opinion, at p. 63.) ECUSA is still maintaining on appeal that it is hierarchical, and that no “division” can have taken place under its polity. Judge Bellows found that ECUSA was “hierarchical” only to the extent that it was clearly not congregational, so that section (A) of the statute, rather than section (B), applied to its congregations. Had he bought ECUSA’s argument, Judge Bellows would have said that the statute does not apply, because congregations are not permitted to leave the hierarchical structure of the Church with all their property. But he rejected that argument---i.e., it did not “stand up in court”, exactly as I stated in the first instance.

    There is no “new thing” about the diocesan property litigation arguments. ECUSA maintains it is the same three-tiered hierarchical structure whether it is a parish or a diocese that is the defendant. This premise was, to my knowledge, never given any kind of detailed scrutiny by any court (with expert testimony both pro and con), to my knowledge, before the Virginia cases (I am still researching this point, and my conclusion may have to be revised). All I contend is that those courts who bought the argument without examining it in any detail are not really of any precedential value to deciding it now---whether it’s a parish or a diocese that is involved. I certainly do not concede the point that parishes must lose in every instance. I am currently advising at least one parish that changed its articles to remove any accession to national canons before the adoption of the Dennis Canon, and the Diocese never objected to the amendment. So each case has to turn on its own particular facts.

    You are welcome to respond further as you deem fit, but I will not regard your silence as a concession of anything. All I have done here is expound on my original points a little further, and I thank you for giving me the opportunity to do that.

  5. Mr. Haley, I appreciate the continued discussion. Your blog stands out for the fact that you have detailed, clearly intelligent posts and are happy to engage with those who comment in the same way. This is my final comment on this post -- I'm not out to monopolize the discussion, just to offer a viewpoint and discuss. I'm sure this does not address everything, and I appreciate you not holding silence on a matter against me.

    The crux of our disagreement about the hierarchical-ness point you made has been clarified. You contend that the Dennis Canon doesn't apply to the property at issue in Pittsburgh, and that even if it did that would not be sufficient authorization for the PB to sue to enforce it -- thus my view of Canon I.4.2(a)(1) is not a problem.

    I concede that the letter of the Dennis Canon does not encompass property that is truly diocesan -- the diocesan headquarters, for example (perhaps a smarter lawyer can work that one out, but I'm not seeing it at the moment). But I suspect that most of the property at issue in Pittsburgh is, in fact, congregational property (property held for the benefit of parishes, missions, or congregations), so it would fall under the Dennis Canon.

    I think we'll have to agree to disagree (but with an improved understanding, hopefully) about the specificity of the authorization by GC that is necessary for the PB to carry out lawsuits regarding property. GC has asserted that TEC has an interest in property used by groups within the church. GC has passed budgets that include litigation expenses. (I recognize that the Executive Council has increased the litigation expenses line item; the 2009 GC should tell us whether GC views that as a problem.) That seems to me to be enough.

    I am not saying that TEC is an involuntary association. At least in Virginia (falling back on what is most familiar to me), voluntary associations' rules are generally enforced as contractual in nature. When it comes to rules regarding property, the case law gets a bit more muddled but I believe is consistent with TEC's argument that those who depart can't take the property with them against the organization's rules. (Of course, there are problems in applying any body of law to church property disputes. If you haven't read the Virginia Attorney General's appellate filing, I recommend it -- it has an interesting section about how trust law is problematic in the church property context.)

    I am curious about the voluntary association case law you mention. Is that case law regarding a situation where the association's member is another association? That is a potentially significant difference, I think.

    Regarding "offices in this Church," I was not suggesting that vestries' first loyalty is to the national church -- merely that it is possible for a reasonable person to read the phrase more expansively than you do and thus that it goes too far to label the original statement by +Buchanan a misrepresentation.

    I think Virginia is another area where we will have to agree to disagree. You rightly point out that there has been much discussion (in briefs and at trial) about hierarchical-ness, in regard to TEC, the Anglican Communion, and other churches historically. (Douglas was testifying mostly about the Anglican Communion and Mullin mostly about history.) But the point stands that Bellows didn't examine and reject the argument that TEC is hierarchical -- he simply ignored it. For him, it wasn't relevant because it wasn't part of his analysis under the statute. You're conflating matters somewhat when you refer to TEC's "division" contentions. Those arguments Bellows did reject, of course, but he didn't reject them because he disagreed that TEC was hierarchical; he rejected them because he disagreed that the polity and view of a hierarchy was relevant under the statute. So I too will stand by my comment that your original contention is misleading.

  6. Dear Mr. Haley,

    It would appear that DavidH has by far a much more abundant supply of lipstick available for the pig named Hierarchical ECUSA than one might ordinarily assume would be the case.

    Pax et bonum,
    Keith Töpfer