The Constitutional Crisis in ECUSA (Part II): Unconstitutional Acts in High Places

In this second post of a series examining the self-made constitutional crisis engulfing the Episcopal Church (USA), the focus will be on the complications created by the ongoing existence and treatment of four pseudo-dioceses (San Joaquin, Fort Worth, Pittsburgh and Quincy; another may soon be forced into existence in South Carolina).

These are all invited disasters; they need not have turned out as badly as they have. But for the twisted legal objectives which determined their treatment, they could have properly flourished and been recognized by General Convention in due course as legitimate dioceses. (I spelled out the procedures to do so in one instance -- the diocese of San Joaquin -- in a series of posts here, here and here.)

As things have turned out, however, the faithful Episcopalians in each of those four areas have willingly allowed themselves to be used to further the litigation objectives of the Presiding Bishop and her Chancellor. Because those two officials are acting on their own, without any oversight or supervision (as detailed in the series linked here), there is no one holding them accountable for having destroyed the will to follow the Constitution and the Canons in those areas. The result is fodder for the civil courts, millions wasted on attorneys and grindingly slow lawsuits, and a lack of all pretense of witnessing to Christian precepts.

You will hear again and again from those uneducated in the Church's governing law that "dioceses are created by General Convention." (ECUSA even pays so-called "experts" to swear to such foolishness in affidavits it gives to the courts.) Consider just a few of the reasons why this claim is simply false:

• If dioceses are "created" by General Convention, how did the Dioceses of Pennsylvania, New Jersey, Connecticut, New York, Delaware, Maryland, Virginia and South Carolina manage to come into being before there was even a General Convention?
• If dioceses are "created" by General Convention, then who created General Convention?
• If dioceses are "created" by General Convention, then why do they not all have uniform constitutions and canons, with uniform language "acceding" to ECUSA's Constitution and Canons in every instance?
• If Dioceses are "created" by General Convention, which meets for just ten (now eight) days a year every three years, then how do they organize and adopt their own governing instruments within just that limited window when General Convention is in session to "create" them? (Especially before the days of telephone and telegraph -- as in the case of the Diocese of Georgia, in 1823?)
• If dioceses are "created" by General Convention, then why does General Convention lack the power to appoint a replacement bishop for a diocese whose bishop transfers to another province of the Anglican Communion?
• If dioceses are "created" by General Convention, then why does General Convention need the diocese's consent to assign it to a specific province upon its creation?

The list of such questions could go on and on, but I trust the point has been made: dioceses are not created by General Convention. It is more accurate to say that dioceses are admitted into union with General Convention by the latter's voted consent. The source of all the confusion appears to be Article V of ECUSA's Constitution, which loosely states:

A new Diocese may be formed, with the consent of the General Convention and under such conditions as the General Convention shall prescribe by General Canon or Canons, (1) by the division of an existing Diocese; (2) by the junction of two or more Dioceses or of parts of two or more Dioceses; or (3) by the erection into a Diocese of an unorganized area evangelized as provided in Article VI. The proceedings shall originate in a Convocation of the Clergy and Laity of the unorganized area called by the Bishop for that purpose; or, with the approval of the Bishop, in the Convention of the Diocese to be divided; or (when it is proposed to form a new Diocese by the junction of two or more existing Dioceses or of parts of two or more Dioceses) by mutual agreement of the Conventions of the Dioceses concerned, with the approval of the Bishop of each Diocese. In case the Episcopate of a Diocese be vacant, no proceedings toward its division shall be taken until the vacancy is filled. 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.

In reading this language, many people appear to stop with the first line: "Aha! See? -- It says dioceses are formed 'with the consent of the General Convention'! So General Convention creates a diocese . . .". No, it doesn't. As the rest of the language in Article V spells out, dioceses come into existence in just one of three ways: by dividing an existing diocese, by joining all or parts of two dioceses, or by making a diocese out of an "unorganized evangelized area."

The consent of General Convention comes at various points in each of the three processes. If an existing Diocese wants to split, it comes to General Convention and asks for a resolution authorizing the proposed split, after showing that the measure has passed its own convention and has the backing of the diocesan bishop. If two existing dioceses want to join into one, they both come to General Convention, with their proofs as before, to ask its consent to do so.

But if a new diocese is formed out of an unorganized area, Article V itself spells out the procedure that is followed: "The proceedings shall originate in a Convocation of the Clergy and Laity of the unorganized area called by the Bishop for that purpose . . .". (Note the emphasis added: it is not General Convention, with its extremely limited window of existence, which calls the convocation; instead, it receives the petition for admission at its next regular session, after the convocation called by the local bishop has met and adopted appropriate governing instruments. When General Convention has voted its approval, the new diocese files certified copies of those documents with the Secretary of General Convention, and is thereafter a member of the Church, entitled to send its deputies to the House of Deputies, and its bishop to the House of Bishops.)

The Constitution spells out how a new diocese joins, but it is completely silent about how one leaves. Such silence is read by some to mean that it cannot happen. Again, however, that is not the way the law works. If the joining of an association is meant to be irrevocable, then the law requires that such a condition be spelled out, in words of plain meaning. "Accede" has no sense of permanence or irrevocability to it; it is a word used to describe the assent given by a sovereign state to an international treaty. Even when the assent is unqualified -- that is, without expressing reservations as to any part of the treaty -- it may be withdrawn at any later time, in the sole discretion of the assenting state. No state needs the consent of all (or even of a majority) of the other assenting states to withdraw from a treaty; it simply announces to everyone it has done so.

And that is what the four dioceses of San Joaquin, Fort Worth, Pittsburgh and Quincy each did: they held public conventions, duly noticed and with the required quorums of attendees in each order, and then very openly adopted amendments (all of which required two readings and two votes, at two successive conventions, to pass) which withdrew, or changed, their language of accession to ECUSA's Constitution. From that moment on, since they could not be members of two churches at the same time, they no longer were able to be members of the Episcopal Church. Thus they had defined themselves out of union with General Convention.

That did not mean that they passed out of existence, as all the current lawsuits and their ongoing struggles will attest. They continued to exist as they had before the votes, only they were no longer constituent members of ECUSA. They have each since voted to become constituent members of the Anglican Church in North America.

This is not rocket science, or even complicated law. It has been made so only, as I say, to suit the twisted legal objectives of the Presiding Bishop and her Chancellor. For what they want are the assets of the departing dioceses. Analogizing to the case of parishes which pull out of a diocese, they demand that the withdrawing dioceses surrender their keys, their bank accounts and everything else they own -- but to whom? Not to ECUSA itself; ECUSA cannot legally hold title even to so much as a pew cushion. No, they want the majority to turn these assets over to the minority who voted against the amendments.

Now in all the instances with which I am familiar, the majority in question offered to allow the minority to keep its own share of the assets. But, egged on by the Presiding Bishop and her Chancellor (whose law firm stood to benefit from the resulting lawsuits), the minorities each spurned those reasonable offers, and filed suit for everything -- their own share, as well as that of the majority (which was over 80% in San Joaquin and Fort Worth, and over 70% in Pittsburgh; Quincy, nearly three-quarters of whose clergy and four-fifths of whose lay deputies voted to realign, filed suit against the Church after the latter persuaded the diocese's bank to freeze its accounts).

Only in ECUSA do its leaders make up the law as it goes, and ignore their own Constitution and Canons in the process. When a diocese votes to amend its constitution, it follows that same constitution, which spells out precisely how to amend it. As an organization existing under the laws of the State in which it is located, the diocese obeys State law when it follows the procedures required to amend its governing documents. There is no national canon or constitutional provision which requires a diocese to obtain the consent of General Convention to amend its own constitution or canons, and General Convention has never claimed any such power. Only the Presiding Bishop, her Chancellor and (at the latter's highly interested advice) the Executive Council have made such a claim, probably because they know that General Convention would rebel if it were asked to approve such a measure, which would restrict the freedom of its own members. Then what would become of their much-vaunted claims of hierarchy and unity?

This ball will stay in the air only until the courts swat it down. They are now poised to do so, in both San Joaquin and in Fort Worth. The question is not squarely presented in the Pittsburgh appeal, because the parties stipulated that the trial court was to assume the diocese had acted properly in voting to realign with a different Anglican denomination. And I have not had any news of the status of the litigation in Quincy; perhaps a reader there will let us know.

In South Carolina, the question was all but resolved by the decision of that State's highest court, which upheld the right of an individual parish to amend its governing documents under state law to remove itself from the diocese. If a parish in South Carolina may so amend its articles and bylaws, then what is to prevent an entire diocese from doing so? I believe that some of the resolutions up for consideration at the forthcoming convention go beyond what is strictly necessary under the circumstances (for instance, they could simply withhold accession to the new Title IV instead of canceling accession to all the canons, holus bolus, since they are retaining the 2006 version of the canons for many purposes), but there can be no question about their right, under current state law, to amend their governing instruments.

The interesting question will be: what will be the effect of the amendments that do pass on the diocese's status as a member of ECUSA? There is no point in speculating until concrete changes have been approved, and we know what they are. But I will note, for the record, that the language of Article V (quoted above) makes an "unqualified accession to the Constitution and Canons of this Church" a condition only of being admitted to the Church. There is no indication in the language that the accession must continue to be "unqualified" for membership to continue. Indeed, if that were the case, then there are at least thirty-seven other dioceses currently in the Church who should not be regarded as members, either. (See the first two groups of dioceses, colored blue and green, in this post; I have not counted the four withdrawn dioceses in the total.)

That is not to say that the Presiding Bishop and her Chancellor will not try to make up the law in South Carolina, as well. But given the decision of that State's Supreme Court, and given the chaotic state of ECUSA's various accession clauses, I do not rank their chances of persuading South Carolina courts to agree with them as very high at all.

If and when a court does uphold the actions of a diocese in amending its own governing documents, and reaffirms what I believe to be an obvious and straightforward principle -- that a minority cannot seize control of an organization from its majority, or claim their assets -- the result will be disastrous for the current program in ECUSA. All of the millions of dollars which the DFMS's Treasurer has disbursed to the pseudo-groups at the behest of the Executive Council will suddenly be at risk, because they will not have been given to entities which have an established 501 (c) (3) charitable, tax-exempt purpose. Allow me to elaborate.

For many years now, the I.R.S. has allowed ECUSA to extend the umbrella of its own charitable exemption to its dioceses, by simply certifying that the diocese is one of its members. Some dioceses (such as those which have withdrawn) have chosen for their own reasons to apply for and obtain separate exemptions, but many have not bothered. If a court now rules that the member dioceses in question have properly withdrawn from ECUSA, what then becomes of the status of the pseudo-groups? They cannot claim to be dioceses in their own right, because they were not formed as Article V specifies must be done, and they are not the dioceses which withdrew.

So what are they, if a court so rules? Since they have not yet qualified as properly formed Episcopal dioceses, they are not entitled to use the tax-exempt umbrella of the Episcopal Church, and until they receive their own tax-exempt status, they do not qualify as charitable organizations. They are merely private associations under the law: non-profit associations, to be sure, but not tax-exempt ones. And the Church's corporate arm, the DFMS, will be risking its own tax-exempt status if it is shown to have disbursed charitable funds to benefit private, non-exempt groups.

I wonder what ECUSA's and DFMS's auditors in 2011 will have to say about that, when and if it happens. This is a high-risk, winner-take-all strategy, and the loser will surely pay, and pay dearly. But without any accountability at the top, there is no one to put the brakes on and cry "Hold! Enough!"

Unconstitutional acts are a risk in themselves, but when they spill over to implicate an entire organization's tax-exempt status, they go beyond individual ego and ambition. They become the Achilles heel of the entire organization. And the longer they continue, the worse the ensuing mess will be, and the greater the cost to clean it up.

Dictum sat sapienti.