Monday, October 19, 2009

It's Great to Have Reinforcements

Please go on over to the website of the Anglican Communion Institute and read the address which Mark McCall gave to the Annual Convention of the Diocese of Dallas last week. Here's an excerpt, and if it sounds familiar to regular readers of this blog, well, all I can say is that great minds think alike:

This leads us to the question, “what are the essential legal characteristics of voluntary associations, the things that distinguish them from other forms of organization”? And the answer is, like Pegasus on top of the Mobil Building, “they’re not what they used to be.” Until fairly recently, the law did not recognize a voluntary association as a legal entity distinct from its members. In other words, when the law looked at a voluntary association, it only saw its members; the association itself was simply an aggregate of its members. That rule was changed in the twentieth century in most, but not all states, typically by statute. Texas, like other states, has a statute that recognizes voluntary associations as legal entities and allows them to own property and sue in their own names and enjoy the rights and responsibilities of legal personality. But that was not formerly the case.

The traditional rule is illustrated by two early U. S. Supreme Court cases related to the Episcopal church, both arising in the same small town in Vermont. About fifty miles north of my house is the beautiful town of Pawlet, Vermont. It is exactly what you think Vermont is like, especially if you think it is overrun by Mercedes and BMWs. Vermont is not what it used to be either! Shortly before the American Revolution, King George III donated a royal grant of land establishing the town of Pawlet. One parcel of land was donated to the Church of England for religious purposes and another was donated to the Society for the Propagation of the Gospel. And in the early years of both the Supreme Court and the Episcopal Church two law cases were filed concerning this single land grant by the king. The first, in 1815, was brought by the local Episcopal parish in Pawlet, which claimed it owned the land given to the Church of England. But the Supreme Court said no. By the time the local parish was formed, the Vermont legislature had already passed legislation transferring these two parcels to the town of Pawlet for eventual use as a school. And the Supreme Court ruled that until the formation of a local parish, which was treated as a corporation under the common law, or incorporation of the Episcopal Church by the state or some other means of establishing a legal personality, no group of Episcopalians legally existed to take ownership of the property from the king. These Episcopalians were “merely a voluntary society,” which could not own property.

The other case was brought by the Society for the Propagation of the Gospel and was decided in 1830 with an opinion by the same justice who had authored the earlier Pawlet case. This case had a completely different outcome. Because the Society was an English corporation and was a recognized legal entity, it took ownership of its parcel when the grant was made by the king. So here we find one Vermont town, one land grant, two Supreme Court cases and two different results depending entirely on the legal form of the entity. We see in these cases one of the significant aspects of the choice by the founders of TEC to organize it as a voluntary association.

We also see from this discussion of the traditional understanding of voluntary associations that the concept of membership is crucial. If it is the members not the association itself that are primary in this form of organization, who the members are becomes paramount. And in this respect, associations come in all types. Some have individuals as members. Other associations have corporations or other entities as their members. You are all familiar with trade associations. Their members typically are large corporations that are themselves more important than the association. Another association you have all heard of, the NCAA, the National Collegiate Athletic Association, is an association of colleges and universities. Some associations are in fact associations of associations. For example, there is an association of trade associations called the Federation of International Trade Associations. So, on the important question of determining the membership of an association, one has to look carefully at the structure of the particular association.

. . .

Next, given that the members of the association are the dioceses and the law says the members can organize themselves however they see fit, how does TEC governance work? The first hint is something I have already said: the founders of TEC chose a form of organization that was not at that time recognizable as a legal entity apart from its members. And we still see that basic concept today when we look at the governing principles in TEC’s constitution. We find there a recognition of several legislative bodies. There is a General Convention, but there are also diocesan conventions. And there are no general limitations placed on the authority of either, although there are some specific limitations on each.

This overlapping jurisdiction—we call it concurrent jurisdiction in the law—is not as odd as it might seem at first glance. The Congress and state legislatures frequently legislate on the same things and many court cases could be filed in either the state court or the federal court. And on a more practical level, this concept of overlapping unlimited authority is familiar to everyone through property law. We probably all have joint bank accounts, and we know that any owner of the account can draw on the entire account.

But in the case of concurrent legislative jurisdiction the question quickly arises as to which legislature has priority. This is a question to which the law gives two answers. The most ancient answer, going back to the Romans if not before, is called the “last in time” rule. The last legislature to speak prevails.

To take only one example here, you may not realize that there are actually two lawmaking bodies in the federal government. One, Congress, you all know. The other is the President acting in international matters with the concurrence of two thirds of the Senate. This kind of law is called a treaty, and the constitution provides that both statutes and treaties are the “law of the land” and gives no priority to either type. Occasionally, a treaty will be inconsistent with a statute and in this case the courts apply the last in time rule. Whichever was later, statute or treaty, prevails.

But another rule of priority developed in the law to change the last in time rule. This is a rule that gives priority to a legislative body based not on temporal sequence, but on identity. And for centuries this priority has been expressed legally in a very precise way, through the language of “supremacy.” The oldest law code now in use, the Code of Canon Law of the Roman Catholic Church, uses this language. One need only look at the Table of Contents to see the chapter entitled “The Hierarchical Constitution of the Church,” section I of which is “The Supreme Authority of the Church.” The first canon in this chapter specifies that the Pope possesses “supreme ordinary power in the Church.”

Not surprisingly, at the time of the English Reformation, when the Church of England broke with Rome, this break was expressed legally in the “Supremacy Act,” which made the British monarch the “supreme governor” of the Church of England. All clergy and government officials had to swear an “oath of supremacy” recognizing the king as the supreme governor. Sir Thomas More lost his head over this oath. It is still required of bishops in the Church of England.

And to take a final example, the reason state legislatures cannot take advantage of the “last in time” rule to overturn or nullify a federal statute is that there is a “Supremacy Clause” in the constitution that makes federal law “the supreme law of the land.” And the reason the state court in Alabama could not overrule the Supreme Court in the NAACP case I cited earlier is that the constitution expressly makes the Supreme Court the supreme court. And the reason there is no priority between Congressional statutes and treaties is that there is no language of supremacy in the constitution giving one priority over the other; they are on a par.

Turning to the TEC constitution, we find that it has no supremacy clause giving General Convention priority over diocesan conventions. There is no language of supremacy or any of its synonyms, such as “highest” or “hierarchical.” The closest the TEC constitution comes to this concept is in the provision making the Bishop and standing committee “the Ecclesiastical Authority” in the diocese. If the bishop is “the” ecclesiastical authority in the diocese, the Presiding Bishop, the General Convention and the Executive Council are not.

Great stuff, Mark! Now let's watch as the leftist blogs try to shoot the messenger, while ignoring the message. And just in case they can't read far enough to get to the main message, I will extract it here for them:

First, TEC polity. And to begin, why do we care what the civil law has to say? The answer to that largely lies in the fact that there are now several civil lawsuits around the country in which courts are addressing TEC polity. This is not the way we want it to be, but it is the way it is. And barring some unexpected negotiated settlement of these lawsuits, the secular courts will have profound things to say about TEC polity that will affect us all. So we have to care.


  1. Mark McCall: "And barring some unexpected negotiated settlement of these lawsuits, the secular courts will have profound things to say about TEC polity that will affect us all. So we have to care."

    Not to worry Mark! Legal Logic must and will prevail in the end!

    (It's going to be awhile before I start to tire of ribbing you, my dear Anglican Curmudgeon).

  2. A portrait of a dysfunctional polity is the one that is drawn by the courtroom artist.

  3. It appears that in regards to the Covenant, here we have a venue in which 815 and the Presiding Bishop have exactly zero power. Their position(s) are irrelevant.

  4. A.S. - two questions from this lay person, and neither are really related to each other other than they come to mind considering the current situation in several Dioceses (mine being FTW).

    1. Are Judges restricted as jurors are to reading, watching news regarding the case he is presiding over? Can the Judge in the FTW case, for example, read the various blogs and internet boards to perhaps get a better understanding of say, the C&C of FTW and ECUSA, etc.

    2. Everyone knows ECUSA isn't a church in which the "national church", in this case, 815 NY, owns property at the Diocese or Parish level. If I'm not mistaken, Rome owns all property in the Roman Church, from property at the Vatican to the local parish. Are there, to your knowledge, any other denominations, in which church property is owned by a higher office? How about the Lutherans, Methodists, Mormans, etc.?


  5. TU&D, I predict that the first court of record officially to decide the question of the ability of a Diocese to withdraw from the Church will be California's Fifth Appellate District, and if it's not logical, it won't be for lack of logical arguments! But rib on -- I don't mind being ribbed, and I may have the last laugh.

    David J, if a Judge came across a blog discussing the pros and cons of a case that was before him, he could not ethically read it before he made his decision. Judges are supposed to decide cases just on the evidence that is admitted in the case, and not on stuff found outside the courtroom.

    Rome itself does not own all the parish property, but the individual Catholic dioceses do. In the Protestant tradition in America, congregations have traditionally bought and developed their own property, and so title is usually not held by any higher authority. Some property which is for the benefit of a whole diocese or synod might be held by a corporation sole, of which the bishop is the incumbent.

    Among the Presbyterians and Lutherans, there are clear rules defining the hierarchy between congregation and synod or assembly, and making provision for what has to happen to the property if a congregation decides to leave. The Methodists actually have a Judicial Council whose decision on such matters is final. There are no such hierarchical provisions, or any judicatory over property matters, in ECUSA's Constitution or canons, and that is what causes all the litigation.