Wednesday, May 14, 2008

Can a Diocese Ever Leave the Church?

The question is often put as to whether a diocese can leave The Episcopal Church. It is the wrong question, in my opinion. It focuses on the concept of "diocese" as some kind of abstract, impersonal entity that acts on its own. A diocese is not a monolithic, autonomous object, but is a collection of people. Most of them are organized in law as unincorporated associations---which the law defines as "a group of two or more gathered by mutual consent in association for a common lawful purpose."

Because a diocese is simply a gathering together of people with a common purpose, it can happen that there will be a falling out---a disagreement over that common purpose. When that happens, the association will split up into two (or more) new groups. How does the law treat such splits?

All other things being equal, the law will recognize the larger of the two groups as the continuation of the entity that was the former association, and the smaller as a brand-new unincorporated association. But it may turn out that the larger group does not want to be seen as the continuation of the old association. It may choose, if it wants, to adopt a new name and articles of association, and the law will recognize it by its new name. In such a case, the smaller group could keep the old articles and claim to be the continuation of the old association---again, if it wanted to. If it also adopted a new name and articles, then the old association would simply go into limbo if there were no one to carry it on, and if no one saw to it that it was dissolved.

How does all this relate to The Episcopal Church? From what has been said, it should be apparent that as long as a diocese is an unincorporated association, the odds are high that there will always be some members of the old association who will want to carry on as the Episcopal diocese, while others may want to continue as an association that is a diocese within the Anglican Communion, but just not as an Episcopal diocese. So as has happened in San Joaquin, there will be two unincorporated associations, one of which can become the new "Episcopal Diocese of San Joaquin," and the other of which is now "the Anglican Diocese of San Joaquin." The accurate way to describe this result is not to say that "the Diocese of San Joaquin has left The Episcopal Church," but rather to say that "a number of people have left the Episcopal Diocese of San Joaquin and organized as the Anglican Diocese of San Joaquin, subject to the jurisdiction of the Province of the Southern Cone."

So far, so good. Now we come to the controversial part. Can a diocese constitutionally amend its articles so as to place itself outside the jurisdiction of The Episcopal Church, and under the jurisdiction of a different province of the Anglican Communion? And if it can, what happens to the diocesan property?

There is one school of thought that holds that by unwritten law and custom, as well as by analogy to the Union that is the United States of America, a diocese may not amend its articles so as to break off from The Episcopal Church. At the outset, this argument faces a conceptual disconnect with reality: as we have just seen, in almost any conceivable case (given that we are dealing, ultimately, with sovereign individuals), there will be an association of people that can remain as the unincorporated Episcopal Diocese in question. So what is to quarrel about? How about: property and money. The problem is that, before the split, there was an entity that held title to the diocesan property and bank accounts, and after the split, there are two (or even more) entities. So who ends up with the money and property?

If we ask the law again, it responds: the entity that held title to the property and bank accounts before, and which continues through the split to survive with its original "unincorporated shell" intact, is the one that the law recognizes as still having title to the assets. If the old organization is governed in all of its matters by majority vote, as is typical of most unincorporated associations, then the entity which continues to be governed by the majority of the members will be the one that the law recognizes as holding the assets.

Now I have to introduce another level of complexity here---my apologies, but accurate analysis requires it. Because of these very problems in determining successorship in the case of unincorporated associations, the law allows an unincorporated religious association in turn to authorize its duly designated religious leader to form what is called a "corporation sole". The creation is given this name because it is a unique form of corporation under State law: it has a single shareholder, a single director, and a single officer, who are one and the same person: the religious leader whom the association has authorized to file the papers for a corporation sole. The purpose of the corporation sole is to allow title to the diocesan assets to be held in the name of an entity in corporate form, because corporations have the characteristic of perpetual existence: if their sole shareholder/director/officer dies or is otherwise replaced, the newly designated leader simply steps into the place of the old, and the corporation continues as before. Once again, however, the process by which that leader is designated must be spelled out in the articles of the corporation sole, and the new leader must have the authorization of the religious unincorporated association to file the papers which make him (or her) the incumbent of the corporation sole.

Thus, by virtue of this statutory scheme, it has come about that most dioceses are unincorporated associations, which have authorized their Bishop to form a corporation sole to hold title to all of the diocesan property. Now you can appreciate the level of complexity that has been introduced: what happens to the corporation sole if the underlying religious association, that authorizes its successorship, splits up?

As you might imagine, the majority rule again prevails at secular law. If the larger group maintains the unincorporated entity that was the former diocese, then (all else being equal) that entity continues to govern the authorization of the corporation sole, as it did before the split. Under these circumstances, there is tremendous pressure on the minority group to claim the mantle of the legitimate successor to the prior association. And in the case of a religious association, the way to do so is to claim that the changes made by the majority group were not authorized by the governing principles of the particular religious group. So we have to address the question: is it unconstitutional, or uncanonical, for a formerly Episcopal diocese so to amend its constitution and canons as to place itself outside the jurisdiction of the Episcopal Church?

Those who would argue this question in the affirmative face significant difficulties under both secular and Episcopal law. In the first place, the secular law places great stock by written constitutions and articles, as opposed to unwritten law and custom. The reason is that when the rules are written out in advance for all to agree with before they join the organization, it is much easier to argue that by joining the organization, the members consented to abide by its written rules. It is much more difficult to make the case that by joining an organization where the rules are unwritten, a member had to know what they were anyway, and so gave consent to them by the act of joining. Unwritten laws have a way of being drafted or revised as needed to fit the facts; someone can always be counted on to testify: "That's the way we've always done it, during all my years in this organization."

In contrast, what we have in the case of San Joaquin is an unincorporated association with a written constitution and canons that each specified the procedures that were required in order to amend them. There were no limitations on the nature of the amendments that could be made. Furthermore, all of the procedures were precisely followed in adopting the amendments: the constitutional amendments were passed at two successive annual conventions, as the constitution required, and the amendments to canons were also passed by the required majorities of clergy and laity at an annual convention at which a quorum was present. California law provides: "If an unincorporated association's governing principles do not provide a procedure to amend the association's governing documents, the governing documents may be amended by a vote of the members." (Corp. Code section 18340.) Here those "governing principles" did provide a procedure for their amendment by the members, and the procedure was followed, so California law was satisfied.

If one next turns to the Constitution and Canons of The Episcopal Church, one searches in vain for a written provision that puts any kind of limitation on the kinds of reorganizational amendments a diocese may make to its own constitution and canons. To be sure, there are some provisions that specify details about the election and consecration of a Bishop (Art. II, sec. 2), the number of Bishops Suffragan it may elect (sec. 4), and the resignation of Bishops (secs. 6 and 9); there is a requirement that every diocese elect a Standing Committee (Art. IV), and that every diocese use the Book of Common Prayer (Art. X). But the only provision dealing with the membership of dioceses in the Church itself is this one, from Art. V, sec. 1 (see also Canon I.10.4, to the same effect):
After consent of the General Convention, when a certified copy of the duly adopted Constitution of the new Diocese, including an unqualified accession to the Constitution and Canons of this Church, shall have been filed with the Secretary of the General Convention and approved by the Executive Council of this Church, such new Diocese shall thereupon be in union with the General Convention.
This prescribes the terms on which a diocese shall be admitted, but says nothing about the terms on which it it may leave, unless something to that effect can be inferred from the words "unqualified accession." They mean, as used in this context, the act of "consenting or agreeing without reservation", and thus imply a voluntary choice made to enter into an arrangement. (In the law, there can be no binding contract in the absence of voluntary consent. And if one party breaches the contract, the other does not need the consent of the breacher to withdraw from the contract.) Consent once given, being voluntary, may just as voluntarily be withdrawn if the other side fails to hold up their end of the bargain---mutual honoring of the agreement by each party is the quid pro quo for staying in it. This is also the law of international treaties between independent and sovereign states: when a state signs a treaty, it "accedes" to it, and it has always been understood that the accession lasts only as long as the state wants it to, i.e., a state may chose to withdraw its accession to the treaty at any time, and for any or for no reason whatever, since the state is sovereign, and beholden to no other state. Even if there were specific language forbidding deaccession, it could not be enforced once one side committed a breach of the agreement. So the language issue turns out to be a red herring, although that fact has not quelled the debate.

Father Tobias Haller argues, for example, based on his predilection to find "unwritten TEC law", that it would be "absurd to suggest that a unilateral vote, even by a majority of the members, can permit a diocese of TEC to declare itself independent absent the consent of the General Convention." This argument shows a misunderstanding both of the legal positions and of the kinds of entities involved. General Convention is a creation of the dioceses that join it, and not vice versa: General Convention has no power to create a diocese, but only to consent to its union with one. Dioceses are thus independent entities who owe their existence in the law not to General Convention, but to the people who decide to form them, who in turn agree to be governed by majority decision (or in most cases, by the decision of a vote "by orders", which does not change the underlying point). What the majority of each order in San Joaquin claims the right to do, and what each did, was to vote to amend their own diocesan constitution, which they are fully entitled to do as a matter of California law. This vote was an integral part of the process by which an unincorporated association comes apart when there has been a series of actions by the parent church that gives rise to dissension and disagreement. What would be absurd would be to hold, for example, that no matter what actions General Convention may take---even if it voted, say, to adopt mandatory rites for same-sex marriages throughout the Church---the majority members of the diocese of San Joaquin could not vote to change their affiliation without the consent of General Convention. No constitutional or canonical language of TEC so provides, and the secular law would not enforce it if there were such language. 

(Fr. Haller's analogy to the Union of the States also misses the mark, for several reasons [and for still another reason, see this link]: (1) In the first place, the principle that no State could secede was not established by interpretation of the Constitution, but only after the fighting of the most costly and bitter war in the nation's history. In other words, there was no unwritten law about the impossibility of seceding until after a war had been fought to establish it; the case which Fr. Haller relies on was decided after the Civil War. And during the Civil War, (2) the southern dioceses of the Church uniformly amended their constitutions so as to "deaccede" from General Convention, and voluntarily amended them again afterward so as to accede once more. A third reason the analogy fails is (3) that a diocese, as we have seen, is usually an unincorporated association (the complaint filed in San Joaquin alleges that TEC itself is one), and so is just a grouping of people under the law that will hold together only so long as there are sufficient people to keep it up. A State, on the other hand, is a sovereign entity in its own right, and as we know, thirteen of them existed on their own before there ever was a United States. Dioceses do have to exist in the law, with their own constitution and canons, before the church can recognize them, and before General Convention can come into union with them, but they owe their legal existence to the jurisdiction of the State in which they are located. States do not owe their legal existence to the Union, or to any other State; they have an independent existence which continues apart from their role in the Union or their relationship with other States. Thus Father Haller's analogy between the Church and the Union fails mainly because, as we have seen, even after there has been a split, there remains a group that can come together as an association and continue as the diocese of the Church. As a practical matter, therefore, no Episcopal diocese "withdraws" from the Church. The quarrel is rather, as just noted, over who has title to the assets.)

The second difficulty with the unwritten law position is that it needs a demonstration of consistent prior acts to prove how such situations were governed in the past. And there again, because of what happened during the Civil War, The Episcopal Church cannot point to a precedent for what it contends is the unwritten law today; what precedents exist cut the other way.

But the fatal objection to the current argument that "dioceses cannot leave the Church; only people can" is the statement itself: it recognizes the right of people to choose to leave The Episcopal Church. And if people can leave, they can also choose to group in an unincorporated association that has allegiance to a different province of the Anglican Communion. So what the current Church leadership is really trying to say, in an effort to maintain its right to the diocesan property, is this:
No group of Episcopalians within the given geographic territory of an Episcopal diocese is free to amend the diocesan articles to reorganize into an association that purports to be a diocese of another branch of the Anglican Communion.
Looked at in this light, this is truly a remarkable claim. "Freedom of association" is one of the rights guaranteed to all by the First Amendment, yet The Episcopal Church is trying to say it does not apply inside any of its dioceses. That is, no doubt it would concede that Bishop Schofield and his followers are free to abandon the unincorporated association and its corporation sole to the minority, and to organize a new unincorporated association and a related corporation sole that has no right to keep any of the former association's assets, but (it contends) they cannot lawfully amend the existing constitution and canons to eliminate the accession clause and change the name of the corporation sole.

Such a limitation on the freedom to associate---in the absence of any language to that effect in either the diocesan or the national constitutions---would be unprecedented in the law. (Remember, the so-called "Dennis Canon", which attempts to impose a trust in TEC's favor on all parish property, is silent about the property that belongs to dioceses.) The constitutionally required deference to a "hierarchical church" is not implicated here, because there is no language in the governing instruments to which deference could be required. Instead, under the "neutral principles" approach, state law was unquestionably followed in making the amendments, and they consequently were, and are, fully valid under state law.

Until I see different and better arguments on the side of TEC, this is how I expect the current California legal dispute in San Joaquin to play itself out. So: can a diocese leave the Church? In practice, it never does, but in legal reality, just watch it happen in San Joaquin, and in Ft. Worth, and in Pittsburgh, and in Quincy, and in . . . (to be continued, if TEC stays on its current course). 

But can a majority within that diocese decide to affiliate with a different church, without the consent of TEC? They not only can, but have lawfully done so.



  1. You write:

    The accurate way to describe this result is not to say that "the Diocese of San Joaquin has left The Episcopal Church," but rather to say that "a number of people have left the Episcopal Diocese of San Joaquin and organized as the Anglican Diocese of San Joaquin, subject to the jurisdiction of the Province of the Southern Cone."

    I take issue with this. From an Anglican point of view, there is only ONE Diocese of San Joaquin, just as their is only ONE heir apparent to the throne of England. We cannot have two heirs, and we cannot have two dioceses. One will need to change their name.

    The reality is there is not enough people or resources for a diocese to sustain itself in the area of Fresno, California (though certain TEC will try to litigate the property back, they cannot litigate the people back which is also needed to sustain a diocese in the area of Fresno under the TEC banner). So what will happen is that the Diocese of California will institute a mission (perhaps with financial assistance from other Dioceses in California - though probably not the Diocese of El Camino Real, which - despite being located in one of the most affluent areas in the United States is barely keeping its head above water). That mission diocese may be called the Diocese of Fresno (but as a former Californian, the name "Fresno" is usually used pejoratively in common California usage, I'm afraid - which is probably why the name "San Joaquin" was used instead).

    One of the things that makes this crisis either intriguing or frustrating is that we are dealing with not only legal identities, but ecclesiastical identities. The answer lies not just in legally, but theologically.

    Which may be why the battle over San Joaquin is particularly bitter.


  2. babyblue, Thank you very much for your comment. I agree with your assessment of the situation on the ground. There is, however, no judicial or other authority within the Anglican Communion to decide that there can only be "ONE Diocese of San Joaquin." The Anglican Consultative Council recognizes provinces, not dioceses. So long as the Province of the Southern Cone accepts the Anglican Diocese of San Joaquin as one of its dioceses (albeit on a temporary basis), we will have two dioceses in the area formerly occupied solely by the Episcopal Diocese of San Joaquin. Both are creatures of California law, and California law allows people to organize and come together as unincorporated associations, regardless of what TEC says. Nevertheless, I agree wholly with you that the present situation is unstable, and will not last.

    My post, as you observed, was an attempt to look from a legal viewpoint at what is admittedly a very confusing ecclesiological situation. I am working on another post that will try to explain how our Constitutional "freedom of association" acts as an outer limit on just what TEC can and cannot do with all the dissenting parishes and dioceses.

  3. I have to disagree with Mr. Haley that Episcopal dioceses do not owe their existence to the General Convention. He is quite right that a diocese, before the General Convention acts, exists as a collection of congregations. But I would assert that it only becomes a diocese when the General Convention says that it is.

    Here is an example that I think supports my position.

    I currently serve in a diocese (WNY) which the first diocese to be formed that covered only part of a state. There was, I have been told by a colleague who wrote a paper on the matter, some disagreement about the division of the Diocese of New York into two dioceses. What became the Diocese of Western New York did exist before the General Convention acted, as a collection of congregations of the Diocese of New York. Only by General Convention action could these congregations become the Diocese of Western New York. While this example is not that of a diocese organized in territory where there was no existing diocese, I believe that the same case could be made for dioceses that were organized by congregations that were not part of another diocese. Until the General Convention acts, an Episcopal diocese does not exist.