What Are the Choices for South Carolina? (Part 2)

As I explained in an earlier comment to my introductory article about the choices available to the Diocese of South Carolina, so long as that Diocese remains joined to and a voting member of the Episcopal Church (USA), the Church can make no claim in court to either its property or assets. In these next two articles, I want to explore what both parties -- first, the Diocese, and second, the national Church -- could do if they maintain their existing legal relationship.

For examples of what choices and options are available to the Diocese if it remains a voting member of the association of dioceses which we call ECUSA, we may turn to history. For there was already a time in the past when South Carolina was not fully a participating member of (what was then called) PECUSA (where the "P" stands for "Protestant"). In 1861, following the outbreak of hostilities in the Civil War, the Diocese of South Carolina withdrew from PECUSA and affiliated with seven other southern dioceses in what was formally called the Protestant Episcopal Church in the Confederate States of America (to keep the acronyms from being too confusing, I shall refer to it as the "Southern Church").

From the point of view of PECUSA, none of the Southern dioceses ever actually "withdrew" -- it continued to call their names at each General Convention, and seated them again virtually without incident once the War was over. In other words, it continued to recognize them as constituent, voting members of the Church throughout the Civil War; it was just that their bishops and deputies were "prevented" by that War from attending its gatherings and participating.

That is why, it seems to me, the example of relations between PECUSA and the Diocese of South Carolina during the Civil War can furnish some instruction on what kind of ongoing relationship the Church and the Diocese could have today, so long as the Diocese remains a full voting member of ECUSA. There is no requirement that South Carolina attend General Conventions; it may still exercise its powers by having its Bishop and its Standing Committee give or withhold consent to the confirmation of new bishops, by controlling the amount of money it chooses to donate to the various parts of ECUSA, and by participating or not, as it pleases, in the other organizational activities of the Church.

During the War, the Canons of ECUSA were recognized in the Southern Church only to the extent they were not superseded by canons the Southern Dioceses adopted for themselves. Thus, the obedience of a Diocese to national canons with which it disagrees likewise is not a condition of retaining one's voting membership in ECUSA. The Diocese may choose to follow only those parts of ECUSA's Constitution and Canons which it approves. (Indeed, we know that many Dioceses do so already, as there are those -- like Eastern Oregon -- which refuse to obey the canon requiring that only baptized Christians partake of Holy Communion.)

There is also nothing to preclude Bishop Lawrence from participating in meetings of the House of Bishops only to the extent that he finds them fruitful, and furnishing him with an opportunity to have his grievances heard by his colleagues in meaningful dialogue. Attendance at the House of Bishops is a right, not a duty.

As the diocesan, Bishop Lawrence of course retains full control over the licensing of clergy to minister within the boundaries of the Diocese. And Presiding Bishop Jefferts Schori has already made her canonically mandated visit to the Diocese (shortly after Bishop Lawrence's consecration), so there is no need to arrange any further visits from her during her remaining term of office.

So life in the Diocese of South Carolina, at least from its point of view, could continue pretty much as it has to this date. Indeed, by reducing its participation in the national Church to an absolute minimum, the Diocese would be putting into practice the principle of subsidiarity, in which the national Church could stand to have a refresher lesson or two. Subsidiarity is the idea that the affairs of an organization are dealt with at as local a level as possible, and that only those matters which truly affect the organization as a whole need to receive attention at the topmost level. (It is the principle on which PECUSA itself was founded, and which governed its affairs for the first 150 years of its existence.)

During this period of showing its displeasure with the way the national Church is running itself, the Diocese of South Carolina could also use its continued membership to forge strengthened ties between it and similarly minded dioceses in the Church. For the truth is that if ECUSA is ever to see reform, it will have to take place at the hands of numerous dioceses, and not just one or two acting on their own.

The forging of such alliances should not be regarded as any kind of "disloyalty" to the national organization (although there are certainly those at the top who will choose to view it that way). Rather, it is the exercise of a right that is inherent in the democratic structure of an unincorporated association: the attempt to influence its actions by persuading enough of its members to agree until there is a working majority. Associations are governed by democratic procedures, by and large; ECUSA, even with its more complicated voting procedures in General Convention, is still no exception.

But -- and again, this observation is based on the Civil War experience -- the minimal participation in the affairs of the national Church, and the process of working for changes from within, cannot be a permanent choice. At some point, enough progress has to be made for South Carolina to believe that fuller participation is once more practical, or else the decision must be made that, despite one's best efforts to turn it around, the Church has become spiritually a dead end, so that salvation lies in other company.

I stress that this choice is a corporate one -- to be made by the Diocese of South Carolina as a whole. And in precisely that respect, it is very different from the choices which individuals must make with regard to joining or leaving individual parishes. Those latter choices will continue to be made at the local level, regardless of what corporate choice the Diocese makes as a whole, or when, and there are entirely different considerations at stake. The Episcopal Church (USA) cares little whether or not any given individual remains in one of its parishes; that is why its actions toward parishes can be so bullying. But if five or ten dioceses decide to depart -- now, that will get its attention.

The other question which needs to be addressed, in exploring the option of the Diocese's staying in ECUSA for the time being, is, of course, what steps could ECUSA take in response? As we shall see, those are largely ones under its new Title IV, the validity of which the Diocese of South Carolina does not recognize. Thereby lies the potential for a true constitutional crisis -- the perpetration of which, however, lies wholly in the hands of the national Church's leadership. And it is to that dire possibility that I shall turn in my next article.



  

What Choices Are There for the Diocese of South Carolina?

Bishop Lawrence of the Diocese of South Carolina will soon return from the vacation on which he said he would pray and ponder about the choices facing him and his Diocese. Your Curmudgeon does not want to co-opt any of the deliberations which Bishop Lawrence, his clergy, and the lay members of his Diocese must undergo in the coming weeks. Nevertheless, it seemed fitting that a systematic way of approaching the questions might help to further the necessary dialogue. Consider this post, therefore, as the first in a series of tentative steps taken to explore all the available options. The final choice, of course, rests with the Diocese (speaking through its convention).

And that, it turns out, is a very good place in which to start. Just what is the "Diocese of South Carolina", and what abilities and powers does it have when it speaks through its convention?

Here we must be careful to distinguish the ecclesiastical realities from the legal realities. Dioceses of a Church have dual personalities: they are participants in the Church of which they are a constituent member, and at one and the same time, they are legal entities ("persons") in the eyes of the State(s) in which they exist, and have their boundaries.

The Episcopal Church (USA), as has been discussed many times on this blog, is a rather unique entity in the eyes of the secular law. It formed itself in 1789, as an "unincorporated association." But what do those legal terms actually mean?

The fact that ECUSA is "unincorporated" actually speaks volumes -- in the legal sense, that is. The word "unincorporated" tags ECUSA as not being a corporation. All corporations are creations of a particular State or federal government, and thus ECUSA's "personhood" does not depend upon any particular government in existence in 1789 -- it is rather a creature of what is known as "the common law", which we inherited from our mother country of England.

Corporations come into legal existence when a State (or, in some limited cases, as in the instance of the Diocese of Washington, D.C., the federal government) issues a charter.  The charter is the official license by which the corporation derives its legal existence -- its right to be recognized in the courts of that State (or District) as a person capable of suing, and of being sued.

So the first legal fact of which we must take note is that the Episcopal Church (USA) is not the creation of any particular State, or of the federal government (which did not yet exist when ECUSA was organized). The founders who gathered in New York City in the summer and fall of 1789 did not apply to any of the thirteen colonies for a charter for the Church. They did not do so, for a very good reason: the newly organized Church was not supposed to function as a legal entity in its own right. 

ECUSA was (and is) an unincorporated association, i.e., a group of associated entities (dioceses) without a formal legal charter from any governmental authority. In that respect it was like any group of individuals who came together as a club, or "association", at the time. It is called an "association", because it consists in its entirety of individuals who have freely chosen to associate, under a governing constitution (or "articles of association") and bylaws.

Thus the first, and in many ways the most important, legal point to make is that the Diocese of South Carolina -- which itself was formed under South Carolina law, because it had no reach outside what would become the State of South Carolina -- is just a single member of an unincorporated association, in this case, an association of similar associations called "dioceses," which in 1789 organized themselves into a Church which they called "the Protestant Episcopal Church in the United States of America", or PECUSA (and now today's ECUSA), for short.

When the Diocese of South Carolina helped to form PECUSA, and voted in 1789 for PECUSA's  Constitution, it gave its consent ("acceded") to that Constitution. But consent, or "accession," is by definition not forever and always, unless such a permanent (and hence irrevocable) consent is expressed in unequivocal language. The accession to the Constitution of PECUSA by the Diocese of South Carolina was not stated to be "forever", or "always", or in any such words expressing irrevocability.

For a parallel in our own time, consider the United Nations. The United States of America has acceded to the Charter (Constitution) of the UN -- but that accession (consent) is not permanent. The United States, like any other member nation in the UN, reserves the right to disagree, and to withdraw its accession to the Charter, at any time. (Were the USA to do so, it would of course forfeit its "permanent" position on the UN Security Council. So much for "permanence", or irrevocability.)

Now here is another unusual fact about associations: unless its governing documents give the rest of the members the power to do so, an association cannot expel one of its members from the association. So ECUSA, for instance, has no power to "kick out" the Diocese of South Carolina, because there is nothing in the Constitution or Canons of ECUSA giving such a power to General Convention, or to any other body (or person) within ECUSA. (That is not to say the current leadership might not try to engineer such a stunt, but it would be highly counter-productive, as explained below.)

This, then, is the first major point for the Diocese of South Carolina to realize: the choice of whether or not to remain in ECUSA belongs entirely to it. No bishop, Presiding Bishop, House of Bishops, or General Convention of ECUSA has the power to declare that the Diocese of South Carolina is no longer one of ECUSA's members.

And further -- why would ECUSA ever want to exercise any such "power", if it existed? If ECUSA had the ability to dissolve its relationship with any single diocese, then it could no longer make any claim to that diocese's property. It would, itself, have brought about the circumstances making impossible its claim to any diocesan property, and an ancient maxim of the law is that "no man may profit by his own wrong." ECUSA, in other words, could not by its own actions in purporting to "expel" a diocese create the occasion by which it could thereby lay claim to the Diocese of South Carolina's property.

So ECUSA will never be able to dissolve unilaterally its relations with the Diocese of South Carolina. But the Diocese itself, as we just saw, is entirely free to withdraw its accession to ECUSA's Constitution and Canons at any time. The question which will face the delegates elected to its Convention is just that. Should it follow in the steps of the former Episcopal (now Anglican) Diocese of San Joaquin, and the Diocese of Fort Worth, and the Diocese of Quincy?

Based on the experience of those dioceses, to follow them would be to take a path that leads certainly to litigation, given the needs of the current ECUSA leadership to justify their megalomania, according to which entire dioceses are imagined to dedicate -- irrevocably! -- their property to the national Church upon joining it. Withdrawal (today, unlike the case of 1861) thus leads to a lawsuit, which in South Carolina's case will be led by the all-too-willing minions of dissident groups like the Episcopal Forum, who distinctly yearn to become tools in the hands of 815's megalomaniacs.

Given the decision of the South Carolina Supreme Court in the All Saints Waccamaw case, however, any such lawsuit would be doomed to failure. There is simply no valid claim, under that decision, of an implied trust on all the diocesan assets which the national Church could successfully assert in the South Carolina courts.

Of course, that does not mean that 815 will not wish to sue, or that it will be unable to find stooges ready, willing and able to claim to act on its behalf. But the sole purpose of such a lawsuit would be harassment, given that it will be dead out of the starting chute. (And thus it would be still more an unconscionable waste of the national Church's assets.)

The Episcopal Forum in South Carolina already has attorneys who have told it that the All Saints Waccamaw opinion is confined to its unique facts, even though the Supreme Court's decision on the per se invalidity of a purportedly universal, but wholly unilateral, trust in favor of ECUSA was rendered in language that applied across the board, as a matter of law, and not just confined to the facts of the case.

So be it -- that is what lawyers do: they collect fees to invent arguments, whether successful or not. (That is why most such attorneys insist on being paid in advance.) And that is likewise what their unquestioning clients will in this case be constrained to do: to pay them to argue a losing cause, until their arguments are utterly shot down, as All Saints Waccamaw requires. That is the plain price of a blinded refusal to acknowledge what the State's highest court actually said.

The decisions of the delegates to the Convention of the Diocese of South Carolina, therefore, should not be based upon what ECUSA, or the Episcopal Forum (or their ilk), may threaten will happen. We know what will happen; it is as fated as the Ides of March were fated. The fact remains, however, that such a "fate" is no real deterrent to anything that the convention of the Diocese of South Carolina should eventually choose to do.

The real question facing such a diocesan convention will be where to pledge their allegiance, if not to ECUSA. And by posing that question, I do not mean to exclude an answer that simply declines to separate, in any final way, from ECUSA itself. It is surely a choice that South Carolina may yet decide, under its Bishop, to remain (as he pledged) in ECUSA, but to dissent from its heretical ways, and to maintain a steadfast witness to "the faith once delivered to us by the saints."

In a further installment, therefore, I propose to examine just what the advantages would be for the Diocese of South Carolina if it decided to remain as a true witness in ECUSA, versus its making a decision to withdraw. As always, I invite comments from those who will be most affected by any such decision.

A Short Note to My Readers

This time of year is always family time -- it seems we are a tribe of Leos. At any rate, I have been glorying in the joys of spending time with all my cubs and grandcubs, against which the need for blogging has paled into insignificance.

There is a new decision by the Indiana Supreme Court which needs to be brought to your attention, because it will give hope to all the beleaguered Episcopalians in that State (other than those in the Diocese of Northern Indiana, under the orthodoxy of the Rt. Rev. Edward S. Little) that the Dennis Canon has no self-effectuating power there to rob them of their parish property. I shall expound upon its details and consequences, trust me [no pun, naturally, unintended], in due course.

Another factor contributing to my recent reticence is a rediscovery of the apologetic masterpieces of Gilbert Keith Chesterton -- who, I must acknowledge, would not approve of curmudgeonry for its own sake (that is, using your own debating skills in a contest to vanquish one's adversaries in a flourish of logic and rhetoric).

Chesterton achieved far more by being charitable and respectful to his opponents. He accepted their outlandish and anthropocentric premises at face value, and then proceeded to demolish them by invoking little more than man's innate wit and crowning common sense. Since both of those formidable weapons derive ultimately from God's having created man in His own image, his adversaries (being men themselves) could neither refute, nor credibly deny, what Chesterton wrote -- without, at the same time, negating their own humanity.

His acceptance of his opponents as full equals disarmed them so much, for instance, that neither George Bernard Shaw nor H. G. Wells ever quite realized it when he had severed their respective heads from their respective necks (rhetorically speaking). Instead, they each went right on being the best of comrades with him -- "arguing, but never quarreling" -- with Chesterton, to be sure, enjoying all the best arguments.

In my future posts here, I shall endeavor greatly to follow G.K.'s incomparable precept -- which stems  (as I believe) from his unshakable faith in the eternal wisdom that underlies a child's native innocence. Indeed, my recent wonderful time spent with my grandchildren has reinforced my conviction that Chesterton, though without offspring, had grasped the abiding truth in our Lord's example, and likewise delighted in the gifts that little children so freely offer to us.

Although I can never be as prolific as he was, I have hopes that I may yet, even at this late stage, be of witness to the glorious and faithful Christian example which he did his utmost to sustain and continue.