April 27, 2008

This Meeting is Now In Secession

In a recent statement to the clergy and parishioners of "the Anglican Diocese of San Joaquin" its bishop made the following observation:
I want to remind you that in spite of the claims by The Episcopal Church, nothing in their current Constitution and Canons prohibits a diocese from leaving one province and moving to another.

This is correct as far as it goes. Nothing in the Constitution and Canons of TEC explicitly forbids a diocese removing from the church and transferring to another, just as nothing in the US Constitution expressly forbids a state leaving the Union to align with another country. That matter was dealt with by the Supreme Court (Texas v White, 1869). The court found that the underlying importance of the concept of the "union" of the states literally "goes without saying." The same is true of the union of the dioceses in The Episcopal Church.

The Constitution and Canons of TEC make ample provision for the division, creation, and merger of dioceses, and for the cession of territory from one diocese to another. (The original dioceses were contiguous with the states, and in fact were called "states" in the earliest versions of our Constitution.) But it goes without saying -- and isn't said -- that no diocese is free simply to detach itself from the "national church" without the permission of that church through the General Convention in "union" with which it becomes part of the Church in the first place.

The only provision in our Canons for diocesan autonomy from TEC applies to missionary dioceses outside the territorial boundaries of the United States, and then only with the approval of General Convention.

Tobias Haller BSG

11 comments:

RFSJ said...

Tobias,

Doesn't yopur argument beg the question and introduce a value that we might not wish to introduce? I think comparing the C&C to the US constitution is a bit of a non sequitor. They aren't comparable. Yes, in this Constitution-centric age, we hold our governing documents, sacred and secular, as holy writ (to mix metaphors a bit). And that's good. I want us to take our C&C very seriously indeed. But just because the US Con. says or does not say something does not mean that *should* translate to the C&C necessarily. Why? Because the US Con. implies that there are democratic principles being enacted, for their own sake. My concern with arguing from the US Con. is that a hierarchical church - which we are as a catholic church, even though we have (rightly, I believe) diluted pure hierarchy with some polyarchy, to possibly invent a term - should not necessarily admit to democracy, i.e., the pure will of the people, even filtered as the US Con does through many layers of republicanism.

I think you can argue that the C&C "goes without saying" that secession is not an option. Even if it doesn't you can make the Gospel point from any number of places. Bottom line for me, as I have begun to emphasize in my parish, where there has been in the past a certain amount of both tit-for-tat-ness and walking away, is that we cannot model the reconciliation of Christ to the world and the community - we cannot be the branches bearing good fruit, from today's Gospel, if we are not connected to the Vine, if we are not at the table. I believe secession is practical heresy, as it denies the truth of the communion we share in baptism and which we renew in the Eucharist. it says we are not and cannot be in communion, a very pinched view indeed.

So I don't think we need a juridical argument to counter the former bishop of S.J. His argument from the C&C is a non sequitor to start with, theologically speaking, and so any rejoinder contains within it the same theological fallacy, seems to me.


Cheers,

Bob

Tobias Haller said...

Bob,
I'm not approaching this as a theological issue as I'm not sure it is one. There are some theological issues in all of this, but the status of a diocese in relation to its church is, from my perspective, purely political -- it is a question of church governance, for which there are different models, all of them theologically justifiable, from congregationalism to papalism.

But this is definitely a legal issue. The matter will be going to the secular courts (in response to which Schofield penned this epistle.) So these matters will be dealt with (or not) by the civil authorities.

As to the comparisons between the Episcopal Constitution and Canons and the US Constitution, there are actually many points of contact, both personal and legal. William White was chaplain to the Continental Congress, and there is language in, for example, Article IV of the US Constitution that is almost identical to language in the Episcopal Constitution, particularly when it comes to matters of how dioceses are formed. Even the language of "enter into union with the General Convention" shows the sibling relationship these two Constitutions, both adopted in 1789, have with each other.

I take your point about the problems all of this raises for the Body of Christ -- and share your feeling about the schism. But the schism is only exacerbated, to my mind, by the fallacious justifications used to advance that cause.

I can of course also point out that this idea of San Joaquin being part of the Southern Cone also violates their Constitution, which only allows dioceses within the national bounds of the countries making it up. This kind of disorder is indeed a non sequitur -- but it is the specious arguments of Schofield and Venables that do not stand up to either the letter or the spirit of the law in this case.

Fresno Mark said...

The Diocese is a political subdivision of the Episcopal Church. It would be as if the County of Fresno decided that it no longer wanted to be part of the State of California, and decided it now wanted to be part of Texas. Ain't gonna happen. And I'm SURE there is nothing in the California constitution that expressly forbids it.

Tobias Haller said...

Let me also add that even after the Civil War the US Constitution wasn't amended to include a prohibition on secession. It simply wasn't necessary. Moreover, during the Civil War the Episcopal Church never acknowledged the existence of the "Protestant Episcopal Church of the Confederate States of America" and simply deemed the bishops "absent" from meetings of the General Convention.

This is where the fallacy that "the diocese is capable of independence from the church" is so nonsensical. I dare say no English diocese could decide, on its own, to secede from the Church of England and become part of Wales or Ireland or Scotland -- to say nothing of the Southern Cone!

Some things don't need to be written into constitutions because they are obvious.

Erika Baker said...

Tobias

"Some things don't need to be written into constitutions because they are obvious."

They are obvious at the time, until someone comes along to challenge that presupposition.

In principle, this is an event in the legal/political sphere similar to what you are doing in the theological sphere.

And although I'm fairly sure of the outcome of this particular legal wrangle, I'm also fairly certain that a secession clause will from now on have to be written into all new constitutions.

Tobias Haller said...

Dear Erika,
This is part of the problem with law in general, and one of the reasons it tends to evolve rather than simply appearing in all its pristine glory. Things seem obvious at one point, such as go without saying, and then something inconceivable happens and either the law has to change or some authority (such as the Supreme Court) has to issue a judgment. Much of what has happened in the last few years comes under the category of constitutionally inconceivable -- or at least unconceived-of at the time the Constitution was framed. Whether we will amend our canons to prevent such future attempts or not remains to be seen; some might see an attempt to amend as a kind of confession that the intent wasn't really what it was from the beginning -- so a simple resolution stating how the church understands the Constitution might be more wise, as the General Convention acts in the role of a Supreme Court in interpreting the foundational documents.

To some extent all of this butts up against a kind of legal parallel to Gödel's Theorem in mathematics: that it is impossible to construct a totally "complete" system that addresses all eventualities. And, of course, that's why our Constitutions (both church and state) turn over the responsibility to deal with the unforeseen to other structures.

Anonymous said...

(Dan)
"some might see an attempt to amend as a kind of confession that the intent wasn't really what it was from the beginning "
Sort of like the Denis Canon!

Tobias Haller said...

Dan,
Only to the extent that there are some fantasists out there who think the Dennis Canon doesn't represent the original intent of the church in terms of the trustee relationship of vestries with regard to the larger church. It rests on a principle of law going back to Henrician legislation, so there is an ample pedigree to the principle, which, it is quite true, the framers of our Consitution did not think necessary to expound.

It is also perfectly clear that the Dennis Canon was crafted in direct response to the recommendations of the US Supreme Court precisely to enshrine in an explicit and governing law something that had always been the basis for past actions and court decisions for generations. Even given that, not a few in the "parish separatist" movement seem not to appreciate that the Dennis Canon is exactly what the Supreme Court offered as an alternative to changing deeds on an individual basis. It is a "neutral principle" that the courts can enforce, i.e., that the Canons of the church do in fact govern and define the trustee relationship, and always did, even if not explicitly so.

That doesn't stop some from clinging to illusions along with the property of which they were only trustees, not owners, and sometimes even confusing the odd court to rule in their favor -- but the bulk of decisions will fall to reliance on the principles established by SCOTUS. And should a case ever reach that level, it is very doubtful the court would overturn such a settled matter.

Grandmère Mimi said...

I'd go whole-heartedly with "goes without saying". I like to keep things simple.

A. S. Haley said...

Fr. Haller,

The history of the Church during the Civil War does not assist your argument. There was no lawsuit brought against the "absent" southern Dioceses to declare their withdrawal ultra vires, and when they rejoined the Church after the War, they each had to amend their Constitutions once more to accede to General Convention, and ask to rejoin. The General Convention of 1865 adopted a resolution allowing them to do so---they were not simply recorded as now "present".

Moreover, the current argument in San Joaquin is not exactly over whether or not a diocese can "leave" the Church---TEC, Bishop Lamb and the present Episcopal Diocese of San Joaquin as plaintiffs are taking the position that there still is only one Diocese of San Joaquin, and it met and acted to rescind the actions of the Diocesan Convention of December 2007, so they are rightfully in charge of the unincorporated entity that constitutes the Diocese in California law. Thus the argument will be over whether +Schofield and his delegates, on the one hand, and +Lamb and his delegates, on the other, followed proper procedures in withdrawing (+Schofield) or in rescinding the withdrawal measures (+Lamb). This is a big gamble, because if they win, +Lamb et al. take the pot; but if they do not prevail, they will be the ones who will have to start over, from scratch. (More on this at my blog.)

As presented to the courts, therefore, the argument will not be so much over what TEC's Constitution and Canons do not say, but over what they do say, and whether or not those provisions were properly followed.

Tobias Haller said...

Dear A.S.,

Your response reveals the usual confusions to which those on the conservative side of the discussion usually fall prey.

The lack of "lawsuits" at the time of the Civil War is irrelevant on two counts: first, the present lawsuits do not challenge the act of separation but the matters of property. Anyone is, of course, free to leave the Episcopal Church at any time she chooses, and no one can bring a suit against them for doing so. The second reason: no civil court would intrude on such a question as to whether an individual or group of individuals was still part of The Episcopal Church -- the moment it did so it would be intruding upon territory proscribed by the US Constitution and Bill of Rights -- as, indeed, I expect we will soon hear from Virginia.

As to the issue of being marked "present" you are misunderstanding what I said, which referred to how the bishops of the Confederate dioceses were treated during the War. That the dioceses were required to reaffirm their accession was only necessitated by the fact they had deleted the accession clause from their respective Constitutions. The one bishop elected in the South during the interim was received into the House of Bishops without re-ordination.

You do give a fair account of the underlying issues in the present situation in California, but err in your assessment at the end: the fact is there is no provision in the Constitution and Canons of TEC for a diocese to separate from the church. At the very least it is clear that such unilateral actions are void, by definition, since admission to union with General Convention requires approval of General Convention, and even those missionary dioceses overseas who gain their independence only do so on the basis of consent from the General Convention. It is absurd to suggest that a unilateral vote, even by a majority of the members, can permit a diocese of TEC to declare itself independent absent the consent of the General Convention. The parallel with the case of Texas vs. White is illuminating in this regard, considering the similar silence in the US Constitution.

As to San Joaquin, it seems apparent to me that the finding will be that Bishop Schofield and those who supported his effort ceased (as individuals) to be Episcopalians (they do not deny this) -- and therefore have no standing over the governance of the Episcopal Diocese of San Joaquin. They cannot have it both ways. There is no "proper procedure" to withdraw from TEC, other than that accorded to overseas dioceses or mission areas. That their purported membership in the Province of the Southern Cone also violates the Constitution of the Southern Cone does not advance their case in the least. It would appear, from a legal basis, that they are "extra ecclesiam."

I realize that California law is a bit hazy on some of these issues, though the anomalous past interpretations of a few courts are under review; my point of analogy with the US Constitution and SCOTUS decisions is a reminder that should this need to go to the Federal level, the track record is much clearer; and for SCOTUS to find the TEC Constitution deficient in this regard would require the same finding on the US Constitution, reversing Texas v White. I think that will be very unlikely.