Après Moi, le Déluge: Executive Council Fires on South Carolina

The Constitutional issues splitting the Episcopal Church are at last coming to a head, so there is at least that much for which, as an Episcopalian, to be thankful. But the tone and tenor of the confrontation do not bode well for the future of the Church.

As readers of this blog already know, it is an undeniable fact that the only members of the unincorporated association which currently calls itself "the Episcopal Church in the United States of America" are its dioceses. Moreover, history provides incontrovertible evidence that the Diocese of South Carolina was a legal entity whose existence preceded that of (P)ECUSA by at least eight years or more. The autonomous Diocese of South Carolina (as it then indisputably was) helped to form the association that is (P)ECUSA in 1789. It did not thereby, somehow in the act of formation, disappear or dissolve into the maw of some larger entity -- as subsequent history showed when, during the Civil War, the Diocese of South Carolina withdrew from PECUSA and joined the Protestant Episcopal Church of the Confederate States of America.

This is such a crucial preface to what follows that I shall restate it: only dioceses, in their given territories, are legal members of the association which is the Episcopal Church (USA). As such, they are free, under the First Amendment, to join it or to leave it at their pleasure, through duly enacted amendments to their governing documents -- which ECUSA is, again under the Constitution's First Amendment, powerless to annul or forbid.

Now comes an utterly supercilious pronouncement by an official on behalf of ECUSA's Executive Council (citing the "decision" of one of its joint standing committees) with regard to the Diocese of South Carolina, and which purports to "declare" certain acts taken by a member diocese to be "null and void". [A tip o' the Rumpolean bowler to the Rev. Steve Wood's blog, which in this instance was authored in his temporary absence by Greg Shore.]

Oh, really? And just who, pray tell, is this supra-diocesan "Executive Council", or its "Joint Standing Committee on Governance and Administration"?

Answer: the Executive Council is not an official body of the Episcopal Church (USA), because it is neither a constituent member of that association (only dioceses are members), nor is it a creature of ECUSA's Constitution, which does not mention it in any of its Articles. And by definition, a committee created by the Executive Council to operate under its auspices, whether sanctioned by canon or not, can attain no supra-diocesan status, either.

Instead, the Executive Council is nothing more than a glorified Board of Directors, to whom additional express duties have been delegated (and those duties emphatically do not include ruling on the constitutionality vel non of amendments by dioceses to their governing documents). The entity of which it is the Board of Directors is not the unincorporated association which is the Episcopal Church (which has no Board), but instead is the New York charitable corporation which calls itself "the Domestic and Foreign Missionary Society." That Corporation's articles were established by Canon, and the role of the Executive Council as its Board was likewise established by Canon. But I repeat: no mere canon of the Church can elevate the Board of Directors of a separate religious corporation, let alone one of its joint committees, into a supra-diocesan authority within the association of dioceses that form the Episcopal Church (USA).

Let me give you an ordinary-day analogy: the claim by the Executive Council to be able, by one of its resolutions, to "nullify" a duly adopted amendment by a diocese to its own Constitution and Canons is akin to the Board of the Book-of-the-Month Club claiming the power to nullify your neighborhood book club's bylaws, just because all of your book club's members were also subscribers to the Book-of-the-Month Club. They would never claim any such legal authority, and it is just as preposterous for the Executive Council of the DFMS to claim such authority with regard to members of ECUSA.

There is a reason, after all, why an unincorporated association like ECUSA has a Constitution. It embodies the terms of the contract between and among its several member dioceses. All of those members are signatories to the contract, and no non-member has any ability to sign or otherwise modify the terms of that contract.

The Executive Council, I repeat, is neither a member of ECUSA, nor a body created by the contract among its members, which is the Constitution. Another body created by that contract, which we call General Convention, chose to form a non-profit religious corporation under the laws of the State of New York, so as to be able to receive and hold gifts of property and money from Church donors. (Under New York and common law then in effect, an unincorporated association like the Protestant Episcopal Church (USA) was legally incapable of receiving gifts, or of holding title to property.)

That corporation so formed by canon of General Convention needed a board of directors under New York State law. Initially, the Canon authorizing the Corporation provided that the Board consisted of 24 members elected at each meeting of the DFMS, while all of the Church's bishops were deemed "Vice Presidents" of the Corporation. Those provisions, however, became unwieldy with the passage of time, and various intermediate solutions were adopted, only to be abandoned at subsequent Conventions and replaced by still other substitutes.

Finally, in 1919, General Convention proposed the creation of a body which it called the "National Council", which would function as the Board of the DFMS. The enactment of what became Canon 60 in that year described the powers and duties of the Council, in these words:

Sec. 2. The Presiding Bishop and Council shall exercise all the powers of The Domestic and Foreign Missionary Society . . . and have charge of the unification, development, and prosecution of the work of Missions, Church Extension, Religious Education, and Christian Social Service; of the performance of such work as may be committed to them by the General Convention, and of the initiation and development of such new work between the sessions of General Convention as they may deem necessary, subject, however, to the provisions of the Constitution and Canons . . . .

These duties and powers of the now-yclept "Executive Council" have essentially remained the same ever since. Current Canon I.4.1 provides in part:

Sec. 1 (a) There shall be an Executive Council of the General Convention (which Council shall generally be called simply the Executive Council) whose duty it shall be to carry out the program and policies adopted by the General Convention. The Executive Council shall have charge of the coordination, development, and implementation of the ministry and mission of the Church.

(b) The Executive Council shall be accountable to the General Convention and shall render a full published report concerning the work with which it is charged to each meeting of the said Convention. The report shall also include information on the implementation of all concurred resolutions of the previous General Convention calling for action by the Executive Council, by its officers and staff, and by the jurisdictions of the Church.

. . .

(e) The Council shall exercise the powers conferred upon it by Canon, and such further powers as may be designated by the General Convention, and between sessions of the General Convention may initiate and develop such new work as it may deem necessary. It may, subject to the provision of this Canon, enact By-laws for its own government and the government of its several departments.

(f) In its capacity as the Board of Directors of The Domestic and Foreign Missionary Society, the Council shall have the power to direct the disposition of the moneys and other property of said Society in accordance with the provisions of this Canon and the orders and budgets adopted or approved by the General Convention.

Needless to say, any powers conferred on the Council by Canon cannot override the powers of the several Dioceses under the Constitution. Although liberals like to argue otherwise, based on no verbal or historical evidence whatsoever, the documented history of the Church and its General Convention establishes conclusively that its member Dioceses are sovereign and autonomous, except only as they have severally agreed to be bound by the provisions of the Constitution.

Liberals like to argue, for example, that to "accede unconditionally" to the Constitution and Canons of ECUSA, as a Diocese sometimes (but by no means always) does on coming into union with ECUSA, binds the Diocese perpetually to be a member of the association which is the Church. Such an argument reads far too much into that language, however, because such a reading would assert that the Episcopal Church is above (or somehow exempt from) the restrictions of the First Amendment. Under the language of that Amendment, as construed by the Supreme Court, the Constitutional guarantee of "freedom of association" includes both the right freely to join (religious and other) organizations and associations, as well as the right to leave them. In short, even were there a written clause in ECUSA's Constitution forbidding members from withdrawing once they have joined -- and I emphasize that there is no such clause -- it would be unconstitutional, and unenforceable in any court of the United States.

The recent actions of the Executive Council are thus delusional, and on a grand scale. They arrogate to the Council a power which it never has had, and never could have. The fact that the Council believes it could exercise such legal power shows what terrible legal advice it is currently receiving -- legal advice which must be wholly colored by the plain need of the Presiding Bishop's Chancellor and his law firm to maintain the fiction that all member dioceses are subordinate to some ethereal, non-existent entity which is "the Episcopal Church." The obvious appeal is to the analogy of the United States -- which, unlike ECUSA, has an executive branch and a judicial branch which are co-equal with its legislative branch, and the three branches thus form a single, unitary political entity in the eyes of the law.

But at the head of ECUSA, there is no such unitary entity. There is only an occasional legislature, which meets once for ten days every three years and then dissolves, never to assemble in the same form, and with the same legislators, ever again. There is no supreme ECUSA judiciary, empowered authoritatively to construe and interpret the Constitution and Canons -- witness this very current dispute: there is no "court" within ECUSA that can authoritatively pronounce just what are the delegated powers of the Executive Council, and have that pronouncement deemed "binding" on the whole Church.

Likewise, there is no (at least not yet) President of the Episcopal Church, with the power to sue and be sued on behalf of the Church, to sign binding contracts on its behalf, and otherwise to enforce its laws (canons) in every Diocese.

(Side note: when was the last time the Episcopal Church [or its Presiding Bishop. acting on its behalf] ever prosecuted anyone, anywhere, for violating Canon II.1, which provides in full -- and I quote:

All persons within this Church shall celebrate and keep the Lord's Day, commonly called Sunday, by regular participation in the public worship of the Church, by hearing the Word of God read and taught, and by other acts of devotion and works of charity, using all godly and sober conversation.

I rest my case.)

In short: this latest action by the Executive Council is itself a nullity, because it is not authorized by any provision in ECUSA's Constitution. Those who make their rules must live by their rules, but ECUSA's Presiding Bishop, her Chancellor, and its Executive Council are deluded otherwise, because the House of Bishops and the House of Deputies have let them get away with it -- for too long!

If, therefore, this is ECUSA's equivalent of the opening salvo on Fort Sumter, then prepare for civil war.