Monday, March 2, 2015

ECUSA and the Freedom of Association: a Showdown Is Coming

Litigation between the Episcopal Church (USA) and its parishes has been ongoing for more than fifteen years. It is a myth to say that the Church did not start any of the lawsuits: you can read all of the dreary details in this post. The Church and its several Dioceses, in fact, are responsible for more than 90% of the cases that have been filed.

The first Diocese, however, did not vote to dissolve its union with General Convention until December 2007. Before that time, the cases all involved individual parishes that attempted to withdraw from their respective Dioceses. Thus, the All Saints Waccamaw case in the Diocese of South Carolina began in 2000 (it was not finally resolved until 2009). So also did the case of St. Andrew's, in Morehead City, North Carolina, which was finally decided in June 2003. The former was decided for the parish; the latter for the Diocese.

And that has pretty much been the story of the parish cases: mostly wins for ECUSA, with some occasional losses (particularly in those States which still adhere to the requirements of the Statute of Frauds, which requires that in order to create a legally binding trust in real property, there must be a trust instrument in writing that is signed by the actual owner of the real property).

The details, again, are all in the post linked before. By my count, 40 of the 91 cases listed resulted in legal victories at the trial or appellate level for ECUSA; just two parish cases (All Saints and the Good Shepherd San Angelo case in Texas) went the other way, but three of the five cases involving Dioceses resulted in rulings against ECUSA. A fourth diocese case (San Joaquin) is on appeal; the fifth one (Pittsburgh) gave a victory to ECUSA on the basis of a very strained reading of the effect of a stipulation between the parties.

It is a legitimate query to ask why the results of the parish cases are so lopsided in favor of ECUSA, while the results of the diocese cases go just the other way. For the parishes, most of the decisions turned upon explicit language in their own bylaws that made them "perpetually" subject to their Diocese and ECUSA. No such language exists in any of the Dioceses' governing documents, however. For the cases involving them, the explanation lies in the well-established freedom of association, which is a fundamental right enshrined in the First and Fourteenth Amendments to the United States Constitution. It holds that just as no one can be prevented by the government from joining a group, so also the group may not go to court to prevent a member from leaving it. "Freedom of association therefore plainly presupposes a freedom not to associate," as the Supreme Court put it in Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984).

The liberals in ECUSA have a very difficult time trying to understand why their Church should be subject to such a doctrine. For them, the union between a Diocese and General Convention is an ecclesiastical one, and as such, they claim, civil courts should be precluded (by that same First Amendment!) from examining or questioning it in any way.

A moment's reflection will expose the flaws in that argument (not that ecclesiastical liberals ever pay any attention to logic or reason). ECUSA is, ecclesiastically speaking, a denomination -- but that says nothing about what it is in the eyes of the law. In order to sue or be sued in a civil court, for instance, ECUSA has to be a juridical person, not just an ecclesiastical one. Which is to say, it has a secular existence in the eyes of the law: it is, as noted here many times, an unincorporated association that was organized at common law in 1789, and not licensed or chartered by any one particular State. (On the other hand, ECUSA's corporate arm, the Domestic and Foreign Missionary Society, is a religious corporation chartered by the State of New York.) 

Ecclesiastically speaking again, ECUSA may make its own rules (called canons), which -- to the extent they are ecclesiatical -- may not be examined or countermanded in any civil court. But as a secular association, ECUSA is at the same time subject to the civil laws of each State in which it operates, as well as to the civil laws of the United States (to the extent they may apply to it). And one of those laws is the freedom of association guaranteed by the First Amendment.

What the First Amendment says is that as an association, ECUSA may not constitutionally restrict the rights of its members to associate or to disassociate. The most it can do, under the cases that have been decided to date, is require a member to pay any previously owed dues before recognizing his withdrawal. Thus for an organization like ECUSA which does -- not yet -- have any membership dues, there is nothing it can do in law to prevent a member diocese from pulling out, and associating (or realigning) with another denomination.

Speaking from an ecclesiastical standpoint, ECUSA may attach all kinds of ecclesiastical sanctions to the withdrawing member: it can refuse to recognize its clerical orders; it can ask other denominations not to recognize the member as an ecclesiastical body; and it can (but only symbolically) "depose" the withdrawing member's clergy, i.e., strike them from the rolls of its ordained ministers.

Other denominations, however, are just as free to do the opposite, so the effect of any such ecclesiastical sanctions may be limited. My main point stands: any unincorporated association, whether religious or secular, may not prevent one of its members from withdrawing (except temporarily, until back dues are paid). 

In some of their court filings, ECUSA's attorneys have argued that under the "freedom to exercise its religion" also guaranteed by the First Amendment, ECUSA may prevent dioceses unilaterally from withdrawing (without General Convention's consent). This is just the same old fallacious argument in another guise. ECUSA wants to have its cake and eat it, too: it wants to be able to go into court to claim the bank accounts and real estate of withdrawing members, but it does not want to incur the civil consequences of being a juridical person entitled to sue -- which means being subject to the general civil law.

Moreover, ECUSA has  never tried even ecclesiastically to place any limits on the ability of its member dioceses to withdraw. If there were any such language in the Constitution or Canons, it still could not be enforced in a civil court, due to the First Amendment, so its practical effect would be useless.

These points are very plain and straightforward. Yet ECUSA is spending tens and tens of millions of dollars on fighting against them in the courts. And do you know what any reasonable attorney could predict? Simply this: given the jurisprudence on the freedom to associate, ECUSA's arguments, such as they are, will lose every time.

So why is it spending so much money on a futile legal dispute? Ah, that is the question. Whenever someone who is as wealthy as ECUSA is spends so much on an uphill legal battle, which it has no rational hope of winning, the motive has to be simply to hope to win by outspending one's opponent. Make it so costly for them that they will just fold their tents and walk away from all their property.

The strategy did not work in Illinois. And it has not worked to date in Fort Worth or South Carolina; I have little difficulty in predicting it will not work in San Joaquin. The decision in Fort Worth has just come out, and confirms what I wrote above; the one in South Carolina (affirming the trial court's ruling) is at least a year away; and the one in San Joaquin is probably eighteen months to two years away. But at the end of it all, ECUSA will lose, and lose big -- especially after having spent so much money.

And, really -- it couldn't happen to a nicer bunch of people. Watch this entire issue be swept under the rug at the coming General Convention -- watch them approve the next triennial budget without allowing any discussion (let alone itemization!) of more than $40 million in litigation costs. Watch 815 hide its head in the sand as it is presented with an order to pay still more millions of dollars to Bishop Lawrence's diocese to reimburse it for its attorneys' fees. Watch for the same thing to happen again in Texas. They must know what is coming, but they will not publicly acknowledge it.  

That is precisely why ECUSA and 815 will deserve what is bound to happen.


  1. For ECUSA that would be a result richly deserved by its so-called leadership.

    Pax et bonum,
    Keith Töpfer

  2. Thank you for the concise summary and analysis of these events. The cost of 815's litigation binge will indeed catch up with them. However, I am not able to find where the budget writers have stashed $40.0 million in the proposed triennial budget. Can you comment? Thank you.

  3. TGravesill, I added a link in the next-to-last paragraph of my post which will take you to the accounting I wrote in January 2014 of ECUSA's litigation costs to date, estimated (then) at over $40 million.

    I will update that accounting before the start of General Convention, as soon as the 2014 year-end figures become available.

  4. Thank you for the link to your accounting; it will help in the completion of the budget briefing I am preparing for our GC delegation. Total Legal for the coming Triennium, based on my corp. experience, is way short in light of the litigation known at this time. "Only" $2.5 million for "Legal Exp. Churchwide Conflict Res." Much like the majority of the cost of the PB's Office and all of the cost of the TEC Corp. Communications Dept (Total of $13.5 million) is tucked into Mark 1 "Proclaim the Good News" instead of Corporate or Governance, more legal has to be slotted elsewhere . . .or is being funded by undisclosed draws/gifts. I look forward to your budget update. Many thanks.

  5. One of the problems with their expensive legal strategy is that they are one entity fighting in courts with dozens of other entities; if they were fighting a single other entity, then outspending could be a way to win, but fighting the number of entities they are, and the number of people, dioceses, and associations (and the motivation of those groups) involved makes it highly unlikely that in the long run they will be able to achieve their goal. of course this becomes doubly difficult when they are required to pay legal costs for their opponent!