Sunday, October 5, 2008

The Only Proper Way Is the One Not Being Followed

Following the vote at the annual convention of the Episcopal Diocese of Pittsburgh to amend its Constitution so as to make it impossible for that entity to continue to be a diocese within the Episcopal Church, we now have the reactions of those liberals who think it only right to reject the vote and stay within the Church.

Let us first examine the want of logic on display here. 

The groups that style themselves "Progressive Episcopalians of Pittsburgh", or "Across the Aisle"---see how we are already dealing with more than one association of people here?---demonstrate, by their very formation and separate existence, what is wrong with their legal position.

They each contend, in their own way, that the vote by the Annual Convention of the Diocese of Pittsburgh to amend its Constitution and Canons was illegal, void, and of no effect. So naturally, as a church attorney who has studied and applied canon law, I choose to cross-examine them on their view.  (In reading what follows, please remember that the object of a good cross-examination is to ask questions that admit of only one answer---that is, if you agree beforehand to be bound by the rules of logic. But then, if you do not so agree, you are claiming the right to be irrational, and you have forfeited the right to be treated as a member of the human race.) 

Was it a vote taken at a properly noticed and convened gathering of the duly elected delegates---both lay and clerical---of the parishes of the Episcopal Diocese of Pittsburgh? (I ask.) 

The only rational answer possible: Yes. 

And is The Episcopal Church itself an unincorporated association of Dioceses, organized under common law?

The only rational answer possible: Yes. (See paragraph 1 of the verified complaint here.)

So if The Episcopal Church itself is an unincorporated association, that means it is not a corporation?

The only rational answer possible: Yes.

And since The Episcopal Church is not a corporation, it depends for its existence on members who choose to come together, belong to it, and abide by its rules?

The only rational answer possible: Yes.  (That is the definition of an association.)

All right, now. Let me ask you this: The Book-of-the-Month Club is a corporation, is it not?

The only rational answer possible: Yes.

But it signs up "members" who are obliged to buy a certain number of books from it?

The only rational answer possible: Yes.

And once a member has bought the required number of books, that member is free to leave the BOMC at any time without being sued on the membership contract?

The only rational answer possible: Yes.

And a "member" pulls out of BOMC (among other possible ways) by signing and sending a letter to them that they are canceling their membership?
The only rational answer possible: Yes.

So there is no difference in principle, is there, between the people who join Book-of-the-Month Club for a minimum membership and the dioceses that join The Episcopal Church?

Answer: Now, wait a minute. You just made a quantum leap, from a mail-order book club to The Episcopal Church.  They are not the same at all.

OK, let's see where they differ, if they do.  The Episcopal Church is, as we previously agreed, an unincorporated association?

The only rational answer possible: Yes.

Which means that its members come together to make the association, and agree to be bound by its Constitution and canons?

Answer: Yes, but they are not independent of it, as are the BOMC members. Except for those dioceses that formed The Episcopal Church to begin with, all the subsequent dioceses started out as missionary districts within the Church, and became dioceses when they were ready to be self-sufficient. So a diocese does not exist apart from the Church that creates it.

Well, let's examine that for a minute. You say a diocese has no existence apart from its church. Let me ask you this: since The Episcopal Church is an unincorporated association, whose members are its dioceses, then it could not exist at all, isn't that right, if there were no dioceses? In other words, an association with no members is by definition not an association?

The only rational answer possible: Yes, that's right.

So The Episcopal Church needs dioceses in order to exist?

The only rational answer possible: Yes.

Just as the Book-of-the-Month Club needs customer members in order to stay in business?

The only rational answer possible: Yes.

So the Dioceses of The Episcopal Church have to abide by the Constitution and canons of The Episcopal Church, right, just as the members of the Book-of-the-Month Club have to abide by the rules of that organization?

The only rational answer possible: Yes.

So it really does not matter, does it, whether a diocese was "created" by the Church? What counts is that the Church stays in existence only so long as it has dioceses to support and sustain it?

The only rational answer possible: Yes.

But a member of the Book-of-the-Month Club may cancel his membership at any time, and refuse to receive any more books?

The only rational answer possible: Yes.

And equally, a diocese member of The Episcopal Church may therefore cancel its membership at any time, and refuse to take part in the Church's affairs, or be bound by its rules?

The only rational answer possible: Yes.  (See this post for why this is the only possible rational answer.)

So there is no difference, is there, in terms of joining and being free to withdraw, between the membership of a diocese in The Episcopal Church and the membership of an individual in the Book-of-the-Month Club?

The only rational answer possible: Yes.

Thank you.  (End of cross-examination.)

Now, with that as prelude, let us look closely at what is being said by those in the diocese of Pittsburgh who want to remain with The Episcopal Church. Here is their statement:
The following information is designed to explain what will happen if “realignment” is approved by the Annual Convention of the Episcopal Diocese of Pittsburgh on October 4, 2008.

1. Under the Canons and Constitution of the Diocese and the Episcopal Church, it is not possible for the Diocese or parishes within the Diocese to leave the Church. People may leave the Church; dioceses and parishes may not. Therefore, parishes, clergy and laity that wish to remain in the Episcopal Church will not recognize the legitimacy of “realignment.”
I regret to inform those of you who prepared this statement that it makes no difference what The Episcopal Church "recognizes" or does not "recognize." The views of the Episcopal Church on the matter are irrelevant, just as the views of the Book-of-the-Month Club would be irrelevant after you sent them a letter canceling your membership. If it were a fact that "under the Canons and Constitution of the Diocese and the Episcopal Church it is not possible for the Diocese or parishes within the Diocese to leave the Church", then the Canons and Constitution of the Diocese and of The Episcopal Church would constitute both an unconstitutional restraint on the Diocese's freedom of association under the First Amendment, as well as a logical contradiction to the nature of both entities as unincorporated associations.  (See this post again for details.)
2. At the close of Convention on October 4, we will no longer recognize those members of the current leadership of the Diocese of Pittsburgh who “realign” as being legitimate. Ecclesiastic authority will shift to those members of the Standing Committee who are known to be remaining in the Episcopal Church.
Once again, it is not a matter of whom you will recognize, but of by whom you will be recognized. The Episcopal Diocese of Pittsburgh, no matter what you say or believe, will continue in existence as an unincorporated association under Pennsylvania law---it has violated neither its Constitution nor its canons in approving the changes it adopted today. You dissented from those changes, but that does not mean that you are suddenly, by the act of dissenting, catapulted into a separate existence of your own under Pennsylvania law. You have to organize, just as the original Diocese of Pittsburgh did long ago, to form a new entity before you will have any status under Pennsylvania law whatsoever.
3. Soon after October 4, the remaining members of the Standing Committee will determine whether any of the other members of the current Standing Committee are remaining in the Episcopal Church. Those who are not will cease to be recognized as members of the Standing Committee. The remaining members of the Standing Committee will appoint two additional individuals to serve as members of the Standing Committee.
Sophistry, sheer sophistry. After the changes in the diocesan Constitution and Canons, the Diocese can no longer function as a diocese of The Episcopal Church. The Standing Committee is a creature of that Diocese. The Diocese having voted to leave, so of necessity has its Standing Committee. As persons who dissented from the vote to leave, you no longer have a Standing Committee, so your determination of "whom to recognize" is a complete fantasy, without any reality in the eyes of the law. Appointing "replacement" members of a non-existent Standing Committee is akin to appointing, on September 12, 2001, "replacement" elevator operators for the World Trade Center.
4. The Standing Committee will determine which members of the Diocesan Council and the Board of Trustees are remaining in the Episcopal Church. The Standing Committee will likely appoint a certain number of new members of Council and Trustees.
See comment on the previous paragraph---you are appointing officials to bodies that no longer exist, as far as you are concerned, after the vote.
5. The Presiding Bishop of the Episcopal Church is expected to recognize the reorganized Standing Committee as the ecclesiastical authority of the Episcopal Diocese of Pittsburgh.
Oh, no doubt she will---I can see her letter coming from a mile away.  Unfortunately, however, there is no diocese of Pittsburgh for her to recognize. There is only a geographical hole which you and she should start doing your utmost to fill in, as quickly as possible. Proclaiming that there is a diocese, and an "ecclesiastical authority", is an exercise in wishful thinking. Have you ever heard of the Emperor with No Clothes?
6. The Standing Committee will appoint a Secretary of Convention, Chancellor, Treasurer, and such other officers as may be necessary.
More wishful thinking. Until you have a proper organizing Convention, any such appointments will be meaningless.
7. The Standing Committee will call a special Convention of the Episcopal Diocese of Pittsburgh, most likely to take place before the end of 2008.
Pray do call a special Convention. Just be sure you do it on at least thirty days' notice (don't follow the 17-day example of San Joaquin), and please be sure there is a quorum of both laity and clergy present.  You will have to figure out how you manage not to count the 121 clergy who voted to leave in establishing your quorum; I refuse to help you, since you are the ones who invoked Canon IV.9 against Bishop Duncan.
8. The special Convention will elect additional members of the Standing Committee, Diocesan Council, Board of Trustees and such other offices that may be vacant due to “realignment.” The Convention will adopt a revised budget for the Diocese, and take such other actions that may be necessary.
Oh, no doubt your "special Convention" will purport to do all those things. Just be sure, as I say, that you have a legal quorum of both orders with which to transact business. Otherwise, you will simply be piling irregularity upon irregularity, until we have, as I have previously described it, "a Murder of Crows."
9. The Standing Committee will determine what course of action to take with respect to providing episcopal services and leadership for the Diocese. There are two options: the Standing Committee may, in consultation with the national Church, hire an Interim Bishop to provide sacramental services (such as ordinations and confirmations) and such other functions as they might choose to delegate to the Bishop; or, call for election of a Provisional Bishop who would have ecclesiastical authority and would serve until such time as a search process and election of a Diocesan Bishop could be completed.
No doubt, no doubt; just be sure to dot all your i's and cross all your t's.
10. The Standing Committee will arrange for Diocesan office space and staff.
Oh, really? Now let me see what you are saying here: there already is a Diocesan office and staff in Pittsburgh, which you can do nothing to change or affect. So where will you establish your office and staff? And how can there be two diocesan offices and staffs, if (in your view) there is only one "diocese of Pittsburgh"? How do you suddenly and miraculously succeed to that title, when the only diocese that there has ever been is still right where it has always been, in Pittsburgh? Doesn't the very fact that you have to establish an "office and staff" prove that you are creating a new entity? And if so, how does that square with your suddenly being recognized as a "diocese" of The Episcopal Church---without your having to go through any Article V formalities?  

But these plans are not all. We also have a letter to the faithful from Dr. Jim Simons, in his capacity as a (former) member of the (now-departed) Standing Committee, and as Chair of the group calling itself "Across the Aisle":
October 4, 2007 [sic]

To the Members of the Diocese of Pittsburgh:

As I am sure you have heard by now, the vote which attempts to realign the Diocese of Pittsburgh with the Province of the Southern Cone passed the Diocesan Convention on Saturday. 
"Attempts to realign"? Come on, Dr. Simons---face up to reality. The vote did realign the Diocese with the Province of the Southern Cone. Maybe you didn't stay around long enough to hear Bishop Duncan's greeting to the Convention after the vote: it was "¡hola!" (And a note for those who insist that the Province of the Southern Cone has no canonical way to "receive" the Diocese of Pittsburgh: the Diocese is a constituent member of the Anglican Communion, since its former Bishop was "received" at Lambeth this summer. As such, it does not need to be "received" anywhere. Until a new province in North America can be recognized, it is simply a matter of Anglican comity for the Province of the Southern Cone to recognize, on a temporary basis, a Diocese that is no longer a member of The Episcopal Church.)
This is ironic and sad. Ironic because the theme of the convention was "A House Divided Against Itself Cannot Stand" and sad because a majority of the diocese apparently does not believe this to be true.
No, Dr. Simons---the reference was not to the fact that the Diocese had to stay in The Episcopal Church for the "house" to stand. It was, in fact, a reference to exactly the opposite state of affairs: because The Episcopal Church is "divided against itself", in the sense that some (like you) believe everything is just fine, while others (like Bishop Duncan and those who voted to leave) sincerely believe (with good reason) that The Episcopal Church is not on a path to salvation, it is no place to stay, since it cannot stand. The proof of that is precisely in what happened today---a majority of the diocese demonstrated with its vote that The Episcopal Church cannot stand on its current destructive course.
I am writing to assure you that The Episcopal Diocese of Pittsburgh in The Episcopal Church of The United States still exists and Across the Aisle is working to assure this reality.
By so expressing your opinion, you are feeding the illusion that there can still be a "diocese" after it has voted to change its governing document. (See argument above.) Face reality, Dr. Simons---you are going to have to start from scratch. There is no diocese in law that can still function as a diocese of The Episcopal Church---you will have to create a new one, out of whole cloth.

As a member of the Standing Committee of the Diocese I will be determining which other members of the Standing Committee are also remaining. Once that has been established I will appoint several other members to serve on the Standing Committee, Episcopal Church leadership will recognize that body as the ecclesiastical authority of the Diocese and we will call for a special convention to be held sometime before the end of the year. At that Convention we will elect individuals to vacated offices and do such reorganization as is necessary.

The initial steps may take several weeks and we will do everything we can to communicate with you in a timely fashion.
If you persist in your delusion, you will only be adding confusion to irregularity. If the goal of all this shadow-boxing is to regain the diocesan property, then why don't you just say so? You want to play for high stakes, then be my guest. Just don't deceive your fellow congregants into believing that your motives are "to keep the diocese faithful".
Personally I am excited by the days that are before us. Twenty-five per cent of the parishes in the diocese have already contacted us about their desire to remain in The Episcopal Church, and we know that over the next months more will follow. I see a Diocese of Pittsburgh which will be diverse, vibrant, and most of all getting back to the work of proclaiming the Gospel of Jesus Christ.
Just imagine---twenty-five percent! What I see is a twenty-five percent minority organizing to sue (using the current lawsuit filed by Calvary Church) to claim back all of the property of the seventy-five percent who left, even though they can have no physical use for it. (It's the principle of the thing---sure.) Proclaim the Gospel of Jesus Christ by taking your brothers to court---that's a fine way to show the world what the Gospel means to you.

Please keep all of this in prayer.

In Christ,

Jim Simons
Standing Committee, Diocese of Pittsburgh
Chair, Steering Committee ATA
We will keep this in prayer, I assure you. We will pray 
for thy holy Church universal; that it may be so guided and governed by thy good Spirit, that all who profess and call themselves Christians may be led into the way of truth, and hold the faith in unity of spirit, in the bond of peace, and in righteousness of life. Finally, we commend to thy fatherly goodness all those who are in any ways afflicted or distressed, in mind, body, or estate; [especially those who think they are still "the diocese of Pittsburgh"]; that it may please thee to comfort and relieve them according to their several necessities, giving them patience under their sufferings, and a happy issue out of all their afflictions. And this we beg for Jesus Christ's sake.



  1. A genuine question: Is DFMS/PECUSA actually an association of dioceses? Is it possible it is rather an association of people with this association being organized in dioceses?

  2. It is confusing, John Tang Boyland. The DFMS/PECUSA is the corporate holding company, as it were, for the unincorporated association that is The Episcopal Church (see Canon I.3 for the history and form of the DFMS/PECUSA). The Canon provides that the DFMS/PECUSA "shall be considered as comprehending all persons who are members of the Church." But for the unincorporated association, all we have to go on is the Constitution itself, which has the complicated structure of General Convention with its two Houses and voting by orders. Nevertheless, since it is the Dioceses who elect deputies and Bishops, they must be considered as the ultimate "members" of the unincorporated association. You can read this account for some background on the relationship between the corporation and the unincorporated association.

  3. A masterful analysis, as always, Curmudgeon!

    When the lawsuit comes, I would hope that the lawyer for the real Diocese of Pittsburgh will be shrewd enough to present this line of reasoning to the courts.

    What a hoot it would be if, upon hearing such line of argument, that the court ruled that the plaintiff - in this case 815 and its faux diocese - had no legal standing to bring suit!