November 27, 2006

The Diocese and the Church

I come from seeing a few folks floating the idea that the Episcopal Church is "decentralized." I would say that on the contrary it is unitary, as no diocese can be created without national approval; nor can bishops be elected without national church approval, just for starters. All dioceses are required to give unqualified accession to the national Constitution and Canons. Between meetings of the General Convention, the church is managed by a national Executive Council. Where is this alleged "decentralization"? (Please note, I use "national" here for convenience: there are a number of "international" dioceses part of the Episcopal Church -- and they have say too, equally with those in the US.)

This structural reality also has bearing on the property question concerning dioceses that attempt to leave The Episcopal Church. "Who gets the property" is amply answered by the wording of the relevant canon: (I.7.4)

All real and personal property held by of for the benefit of any Parish, Mission or Congregegation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located.
If a "diocese" were to assert it is no longer "of this Church" it would forfeit the property under this canon, since the property is held for this Church and the Diocese thereof. So when a diocese "leaves" (if it could) or simply is dissolved (as is more likely) the property reverts to "this Church" -- that is, The Episcopal Church, governed since 1789 by the Constitution and Canons of General Convention.

15 comments:

Anonymous said...

And do you have a legal citation supporting your interpretation of what happens if a diocese were to leave?

Tobias said...

I don't have my copy at hand, but in the most recent issue of The Church Law and Tax Report there is an article addressing this issue, though in terms of a parish rather than an entire diocese. This derives from the decision in the recent Pennsyalvania case, which restates the basic principle that the Episcopal Church, as a hierarchical (rather than congregational) church, vests property in a trustee relationship with the next highest authority.

Now, of course, as the Hull and the Sharpsburg cases decided, at the parish level this will be a matter of state determination -- some states having adopted the neutral principles principle, others resting with the hierarchical.

However, Jones v Wolf (1979) led to the introduction of the Dennis Canon, and since its enactment, it has been looked to as well. I think in cases where an entity changes its bylaws at this point (assuming they had a neutral principle statement of vesting property initially) and then moves to sever a relationship and take the property, a court would hold that only monies collected, or real property obtained, after the amendment would be properly removable from the hierarchical setting.

Needless to say, this will vary from state to state. But I know there was a case (which I can't remember offhand) in which the court said, essentially, "The Canon was enacted in 1979 and you could have dissented at that point, and didn't, so changing your rules at this point will not wash."

Since as far as I know a diocese has never sought to "leave" (and there is no provision for it in the Constitution or Canons apart from dissolution by absorbtion or transfer to another Province -- and the latter refers to dioceses outside the territorial US) it will remain to be seen how the courts handle the matter. Since this would involve the national church, it would probably have to go to a Federal Court, perhaps even the Supreme Court, for ajudication. If it stays at the state level, I think we will see an intolerable lack of uniformity, with, perhaps San Joaquin being able to keep its property (or at least "new" property post amendment to the diocesan canons, but Pittsburgh not.

Finally, do you have a legal citation to the contrary of my interpretation?

Tobias said...

Responding to a comment over at Jake's place:

Although one hears it said quite a bit, the diocese is not "the basic unit" of the church. This view applies the sacramental concept that the church gathered around its bishop is the local manifestation of the whole church, but misses the distinction about "local" and "manifestation" -- and the important fact that polity is not the same thing as sacramental theology. The diocese simply does not stand alone in the polity of this church. The Episcopal Church preserves the tradition of the ancient canons that require three bishops to make one new bishop, for example. (Rome got away from this by vesting powers in the Papacy that formerly were dispersed to the provinces and surrounding dioceses.)

In our polity the diocese is an organ in the body of a province -- it cannot survive on its own. It represents the full expression of the church, but it is not that church. It has certain authorities delegated to it by the province, certain rights and responsibilities, but it is subsidiary to the higher synod -- which in our case includes clergy and laity as well as bishops.

I tis true that the PB is not "pope-like" -- having only limited episcopal jurisdiction -- but the PB is the Primate and Chief Pastor, and takes responsibility for all of the ordinations of all bishops in the church -- although the actual ordination itself can be delegated -- and is responsible for the organization of presentments and trials against bishops, and dealing with complaints against them. Something can be done by the PB when "bishops go wild" and cross boundaries -- though the PB has been loath in the past to start the machinery, the mechanism is there.

Anonymous said...

"Finally, do you have a legal citation to the contrary of my interpretation?"

No. There is no precedent for a diocese leaving. There is only precedent for a dispute between a a parish and a diocese, and the relationship between a parish and a diocese is much different, under secular and canon law, than a diocese and the national church. Also, contrary to your assertion, I don't think the Dennis canon has been litigated, either, if at all. I think the extant cases largely apply the diocesan property canons. My point is that no one knows what the outcome of a bishop versus bishop case will be. Thus, I agree with you that it remains to be seen how the courts handle the matter.

Personally, I think it would be better to separate amicably, but the national church has given no indication that it is willing to do so we may find out the answer.

Tobias said...

Thank you, Anonymous. First of all, let me say that I too wish this could be handled amicably; but while you put the onus on the national church, I place it on those who are proposing this "new thing" of a diocese departing the national church. When it comes to parishes, I think in some few cases the matter has been settled amicably, and I see no reason it could not be done the same with a diocese -- but it has to be clear that if a diocese "leaves" the Episcopal Church, and does not become a part of a Church that is formally recognized as a member of the Anglican Communion, the territory they occupy will be, to all intents and purposes, vacant as far as the Episcopal Church is concerned. The same will happen if the diocese becomes part of the Anglcian Communion and TEC is "kicked out" (as some on that side of the debate seem to think likely). In any case, the present ABofC has indicated he doesn't want to see a different kind of Anglican Church on every street corner -- and I simply don't know how monolithic even dioceses like San Joaquin are to warrant their identification under some new Anglican Province as the sole Anglican presence there.

Again, I don't have my resources at hand, but I am fairly sure reference was made to the Dennis Canon in the case of St James vs the Diocese of Pennsylvania -- and argument was made that it wasn't necessary to invoke the Dennis Canon because the implied trust was already present due to the nature of the hierarchical church; the 1979 Supreme Court case merely advised that hierarchical churches add explicit language to their Canons to avoid any possible ambiguity. That having been done, and protests not having been made at that time, it is seen as a mere codification of an existing understanding. So the Dennis Canon formed part of the litigation, even if its express effect was not adjudicated. In any case, even were it so, it is a matter of state law.

Again, let me say I agree wholeheartedly that this could be worked out. Sadly, it takes two to tango, and Iker and Duncan have just said they have no interest in further discussion. My bishop served on the committee that met with them, and said things were actually heading in a positive direction, though no final decision was reached. They appear now rather to have pulled back, and have thrown their trust towards the Global South. I do not think Canterbury is going to be supportive of this, as he keeps saying he wants individual provinces to work out their difficulties using their own internal methods.

Patrick Henry said...

Tobias, this is not the historic view in the Diocese of Virginia - which of course, predates PECUSA/ECUSA/TEC. There is no way that the founders of the Diocese of Virginia would ever have agreed to what you say because of the fallout from the war with England, as well as deep, deep theological issues with that view of the Church (we are historically evangelical, both in structure and in theology - until recently). There is an inherent mistrust built into the canons of the Diocese of Virginia of a centralized church with bishops. My Virginia Anglican ancestors spent a lot of time getting rid of that overbearing centralized church and adopted a different one, where it was parish centered and continues to be parish-centered to this day. Still, the majority of the Church of Virginia seperated from the Diocese after the American Revolution because the Virginians could not have a bishop. We hadn't had one for the first two hundred (the Bishop of London was our bishop, but he never bothered to come for a visit). In order to keep the remaining Anglicans, it was clear that the Church of Virginia would be parish-centered and rectors are far more the leaders than the bishop, with a few exceptions (including our current bishop, who is a very strong bishop). In fact, this was the reason - at the least in the first go-round - that Bishop Lee defended his vote for Gene Robinson. He used the conservative argument at the heart of the historic Diocese of Virginia, that ours is not a centralized church and if a Diocese wants to pick whomever they want for bishop, they should be allowed to. That the Diocese of Virginia cannot tell the Diocese of New Hampshire what to do. Ironically, that may be one of the major problems in the Episcopal Church - that it is not centralized and the Presiding Bishop is NOT a primate (despite what KJS has been writing on public letters of late).

TEC is still under the laws of the United States and in the United States real estate law is state/commonwealth law - not federal law. Even the TEC cannot - at this late date - turn into a feudal lordship institution and take property just because it wants to. We fought a war over this once. Let's not do it again.

bb

Tobias said...

Dear Mr. Henry,

I concede that court cases involving property will likely depend upon state law. HOwever, the case that led to the decision recommending the Dennis Canon was tried in the US Supreme Court -- so it seems it depends on what the case argues; and if TEC were to say that the state court is meddling in the national church's free exercise of religion in establishing laws governing its members and property, it might well end up back there again. Since the property of the church is held for a religious end (and people enjoy a Federal tax deduction for contributions to that end), I think a good case could be argued at a Federal Level that this becomes a constitutional issue.

I certainly understand the "states rights" view in Virginia, and differeing understandings exist in other dioceses too. But that is largely a matter of sentiment, not law. After all, the colonial church didn't have bishops until after the Revolution. They were all arms of "The Church of England in Virginia, Maryland, etc."

I also understand Bishop Lee's rationale, but I think he is mistaken. If the consent doesn't mean anything, why does it exist?

Finally, our Presiding Bishop is most definitely a Primate, according to the Canons, although she doesn't have all of the powers some Primates have. She is closer, in this regard, to the Archbishop of Canterbury than the Archbishop of Abuja.

Randy Muller said...

Canon I.7.4 is only a claim. This claim has been already been denied in California several times.

Tobias said...

Dear Randy,
I also understand it is on appeal. I realize California has some peculiar understandings in this regard, but it has already been noted that the decisions to date might lead to some real problems if their prededent were allowed in secular situations. I suspect this will all get worked out in the appellate arena.

JCF said...

Tobias, this is not the historic view in the Diocese of Virginia - which of course, predates PECUSA/ECUSA/TEC.

Come now, bb, that would be like claiming that "the 13 original colonies" aren't subject to the U.S. Constitution, because they predate it!

I believe that Fr. Tobias is presenting Episcopal polity "as it has always been taught". Therefore, it would have been incumbent for any diocese disagreeing w/ this form of polity to have said so when the polity was coming into being 200+ years ago (and not suddenly claiming the polity doesn't exist, because a diocese---or 8---suddenly does not like the ecclesiological RESULTS that this polity has created).

I say, to San Joaquin (and Truro/Falls Church): BAD FAITH

[and the current California decisions WILL be reversed on appeal]

thomas bushnell, bsg said...

i think that a diocese is the "basic unit" of the church, in the sense of being a "particular church". but this does NOT in my view amount to any sense in which a diocese is free to abandon the commitments it has entered into, or that bishops are not rightly structured in metropolitical arrangements.

the question is: what are the units out of which the organization of the church is constructed? (answer: dioceses, not parishes) and, what is the unit which has within it all that is of the essence of the church? (answer: dioceses, not parishes, and metropolitical authorities contain nothing which is not in some diocese or other)

when i say that a diocese is the basic unit, i do not deny or refute at all the legitimate claims of metropolitical authority or in any way suggest that bishops need not keep their ordination vows which involve commitments to that authority. i merely mean that parishes are not the basic unit (still less individuals), and that no "petrine ministry" or analog is at all necessary.

Tobias said...

Of course, it all depends on what you mean by "unit." I do not think you are correct in making this synomymous with "particular church" at least as that phrase has been used in the tradition as a term for a province or national church (recognizing that in some places a nation might be subdivided into particular regions).

If you take "unit" to mean, as you appear to, "those smaller parts out of which the larger entity is constructed" you may have a point. But you might as well say that the "units" of the Senate are the individual senators. That may be true in some sense, yet the Senate cannot function as such unless the senators be gathered together in an "assembly" (ekklesia?). The Senate acts as an organic unit, made up, it is true, of components -- but those components, on their own, are not self-sufficient to perform the function of the whole, other than as delegated, assigned, or commissioned (which indeed they are!)

I raise this because those who in general advance the "unit" theory are doing so precisely to claim a kind of self-sufficiency for the individual diocese --- and as I point out, that is lacking, in that a lone diocese cannot perpetuate itself. (The precise claim to the contrary was recently made by one of the reasserter side.) This answers your question as to what a province has that a diocese doesn't: to wit, the ability to create new bishops, and this characteristic is essential to the continuance of the church. This function was held in the early church by the apostolic college, and has been transferred to the college of bishops. My point is that the college is necessary, not incidental, to the life of the church catholic, and therefore a part of the "esse" of the political structures of the church. I acknowledge elsewhere that the sacramental fullness of the church subsists in an individual diocese (short of the ability to ordain a new bishop) -- but we are here talking about matters of polity, and the fullness of the polity of a church such as ours subsists only in the Province or "national or particular church."

Obviously we agree as to the question of obedience here.

thomas bushnell, bsg said...

I think perhaps we agree about everything but the terminology!

My use of "particular church" (and this is what I want to insist on, and not talk about "units") is informed by the two canonical sources I know of which use that exact term.

One is the Constitution of the Presbyterian Church (USA), in which it refers to a local congregation, what we call a parish or mission.

The other is the Code of Canon Law of the Roman Catholic Church, in which it means diocese, or other diocese-like structures which are not technically dioceses under canon law. We don't have a handy term for this, and so we have to keep listing the exceptional cases (currently, the Area Mission of Navajoland and the Convocation of American Churches in Europe are things which are not dioceses, but like them, and which RC polity would call "particular churches" along with dioceses proper).

Note that in *neither* case is there any sense of the particular churches being free to flee whenever they want; these are both two churches with a history of connectionalism every bit as strong as our own.

Moreover, when Presbyterians reattached the word "particular church" to refer to a congregation instead of what would be most natural for them, a presbytery, it was a very conscious and deliberate decision, and a very conscious and deliberate rejection of Catholic organization and ministerial orders. (It is connected strongly with the Presbyterian presence of the three "orders" of Presbyterian officers all present in such local congregations.)

About the ordination of bishops, indeed, a diocese needs other dioceses to ordain its bishops, but here I think I am not all that impressed; if this is a sign of the church catholic and the interrelationships of the various dioceses, then it does not therefore imply that somehow metropolitical authority as such is necessary. Metropolitical authority grew up, much later than dioceses. I'm all for it, but it came second, not first.

(More exactly: there is a significant gap between the death of the apostles, who might well have a claim to metropolitical authority, and any evidence of one bishop or province having any kind of authority over others. This grew up, over time, *later*.)

The college of bishops, is indeed, I agree completely, necessary. But having a college of bishops is not the same thing as having metropolitical authorities about. It is possible to have one without the other, at least, in conditions of relative charity and good will. As soon as conflict arises, and communication is easy, and people can get upset, metropolitical authority is a natural (and I would say, good) development. But I want to insist that the college of bishops was there long before the first primate, archbishop, or whatnot.

I agree completely about the notion in Anglicanism of a "national church" being a self-sufficient entity, in one sense, though such talk does make me uncomfortable. But I do not think you can find reference to Anglican provinces as being "particular churches", using *those specific words*. And it is those words, which have an important weight in the canonical tradition of the Church (Anglican *and* non-Anglican) that I don't want to see the care and precision of what I think is their proper use abandoned.

I would much rather we said "national church", except that we aren't one, and I'm pretty sure that most Anglican provinces aren't one either. We don't *actually* believe that national churches are the proper structures either.

What we have is "provinces", another helpful term, with long standing tradition behind it. Only a reticence and humility restrains us from what is probably the most correct term, "patriarchate".

When I use the old canard about a diocese having within it all that is necessary, I do not mean that the college of bishops is unnecessary, but rather that every bishop in the college of bishops is (or ought to be) a constituent of some diocese or other. I very much dislike the canonical position of the Presiding Bishop in this regard, though it is a symbolic question more than any practical consideration.

In principal, a bishop *can* be ordained without the participation of neighboring bishops, after all, simply by bishops taking care to ordain their successors, and since the requirement of three bishops has nearly always been seen as not being necessary for validity. This is not a question of what is *good* to do, of course, but only what is necessary. (And, we don't really have very clear knowledge about just how all bishops were chosen, examined, and ordained for many centuries at the beginnings of the church.)

Tobias said...

Thomas, I must continue to disagree with the basis of your argument.

First, thanks for explaining what you mean by particular based on what Presbyterians and Roman Catholics mean by it. However, Anglicans give it a different meaning. Let me direct you, for example, to Resolution 24 of the 1897 Lambeth Conference, which is also relevant to the wider discussion:

"That, while it is the duty of the whole Church to make disciples of all nations, yet, in the discharge of this duty, independent Churches of the Anglican Communion ought to recognise the equal rights of each other when establishing foreign missionary jurisdictions, so that two bishops of that Communion may not exercise jurisdiction in the same place, and the Conference recommends every bishop to use his influence in the diocesan and provincial synods of his particular Church to gain the adhesion of the synods to these principles, with a view to the framing of canons or resolutions in accord therewith. Where such rights have, through inadvertence, been infringed in the past, an adjustment of the respective positions of the bishops concerned ought to be made by an amicable arrangement between them, with a view to correcting as far as possible the evils arising from such infringement."

I have highlighted the usage, which clearly indicates that the various dioceses are part of a particular church. This is the sense in which "particular" is normally used in Anglican statements: and from this it is clear the difference between our understanding (the unity of a national province) and that of the Presbyterians and Roman Catholics.

While it is certainly true that the emergence of metropolitical structures postdates the apostles, so, indeed, does most of what we call "the church"! The thing to which I refer, the need to have three bishops to make one bishop, goes back to the Council of Nicea (canon 4), and as you know the Fathers gathered there didn't think they were making things up but rather reaffirming their understandings of what had been established. Canon 4 states, "IT is by all means proper that a bishop should be appointed by all the bishops in the province; but should this be difficult, either on account of urgent necessity or because of distance, three at least should meet together, and the suffrages of the absent[bishops] also being given and communicated in writing, then the ordination should take place. But in every province the ratification of what is done should be left to the Metropolitan." This is remarkably similar to our present practice, though we've added the Standing Committees! So I think the custom is sufficiently antique to be recognized. The fact that Rome allows ordination of bishops by one bishop stems solely from the plenipotentiary authority asserted by the papacy, as "metropolitan of metropolitans."

I won't repeat the argument, but it seems clear to me in spite of your observations that if something can be shown to be essential to the existence of a diocese then the diocese is not unitary, but dependent. The diocese represents an organ in the body of the church, but each diocese is unique, and none can function on its own. That is why they are not "units" in the sense of the bricks make up a house, which are more or less interchangeable. The diocese "is" the church in and of a unique place. We are dealing with a kind of incarnational understanding, coupled with a strong sense of the geographical is-ness of a diocese-in-relationship. No diocese is an island, sufficient unto itself, but is a promontory of the larger entity, the national or particular church.

thomas bushnell, bsg said...

thanks for the quote from Lambeth. I am currently reading the very nice 1940s Anglo-Catholic-ish "The Christian Faith" by Claude Beaufort Moss. In it, he writes of "local churches", and insists that local churches are not just dioceses, but include broader bigger things too, just as civil society is organized on broader bigger lines than just city-districts.

He has a little of the "nation" disease there, wanting to pretend sometimes that the Anglican Communion is made up of "national" churches, which is important if, as he wants to do, it is the actual ways civil society is organized upon which the church can draw. But I think he can be forgiven this, and perhaps all he really means is that we can have the same *kinds* of boundaries, even if not the same *lines*.

Anyhow, for him, a local church is crucially connected to territory, and he uses the word "local" rather carefully for just that reason. He also believes that a "local church" must have a bishop: in other words, one's "local parish" is not a "local church" in Moss's sense, at least, not in most of the cases he uses the word, and perhaps not in any of them.

This, I think, I could live with. I am not at all in disagreement with you, I think, about the way to think of the relationships between dioceses and provinces, and I agree with your very nice words about the mutual dependency which must be in place, and so forth.

My own "issue", as it were, is not so much with *that* level, as with the next one down. It is the habit of congregationalism that I wish to... destroy? :) I want every Anglican to think of themselves *first* as a member of the Diocese of Smugglesworth, and only *second* a member of the Parish of St. Swithin's. I have been speaking of this as if crucial to me was that the diocese be *first*, and I see now that perhaps this is *not* my real concern.

My *real* concern is just that the diocese be higher up than the parish. If you think that we should be members of the Episcopal Church first, and members of the Diocese of Smugglesworth second, I don't have any strong feelings on the matter, as long as St. Swithin's lands after Smugglesworth. :)

I see an awful lot of actual on-the-ground destructiveness in this area, far more than in the area of international and diocese-to-diocese relations. I am far more bothered, for example, by the parish priests who refuse to participate in any activities outside their own building; who think of diocesan liturgies as tedious interruptions of their routine best skipped; who refuse to advertise to their congregation any event which is not "theirs"; and so forth.

i have enjoyed (rejoiced in?) the RC canonical language of "particular church" as being a nice way to express this, but, when all is said and done, that language is not the only way to express it.