The Watcher Cat

The Watcher Cat

Monday, January 7, 2013

More on Secession

A reader from South Carolina responded to my post Firing on Fort Sumter, and I think his views are worth addressing. Unfortunately, my response was too long to post as a comment, but I think the issues he raises are worth a separate post. I want to thank him for his comment, which led me to hone in and (I hope) clarify my own views on these issues. I especially want to thank him for coming over to what might feel like hostile territory to engage me civilly on the merits. I'll give potted versions of the critiques; the original comment may be read appended to the original post.

My reader (he signed his name, but had no way of knowing I'd reply in a full post, so I'll leave it out) raises three issues:

1. He contends that my statement in the original post that "it would appear to assert that the Breakaway Diocese, even though it has, to use its own word, 'disassociated' from the national church, remains the only Episcopal diocese in South Carolina. TEC should be, effectively, prohibited from having a diocese within the same boundaries as South Carolina" is inaccurate, as the "request for a declaratory judgement makes no such claim. You're building a straw man." He further states that "The Diocese of South Carolina has made it perfectly clear that those who left the diocese and wish to reassociate with TEC and form a NEW diocese in the South Carolina Lowcountry have every right to do so. Furthermore, any such parish can leave with all their property and cash intact. What those parishes CAN NOT do is present themselves as the Diocese of South Carolina or attempt to assume the identity (including the history, seal, etc) of The Diocese of South Carolina, which is a registered legal corporate entity in the State of South Carolina."

2. Second, he suggest that "you're being overly optimistic in your reading of the Wacamaw case. There is absolutely no evidence that South Carolina courts will by into TEC's cockamamie argument of 'implied trust.'"

3. "As to whether the Diocese of South Carolina can be a "free floating" diocese, the vast majority of Anglican around the world affirm the idea of extraterritorial dioceses."

My Response:

First, thanks for the comment. Really; I'm about to explain why I don't agree, but that doesn't mean I don't welcome the view from the other side.

Let me start with the easiest one. TEC's theory that a trust was created prior to the Dennis Canon's adoption is one that has been, as you note, accepted by several courts; the theory that the Dennis Canon was sufficient to create a trust, though, was not an invention of TEC but rather of the U.S. Supreme Court in Jones v. Wolf. The Court wrote that:
At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal.
443 U.S. at 606 (emphasis added). This is exactly what the Dennis Canon did, and, assuming the South Carolina Supreme Court got its facts right in All Saints v. Campbell, "[i]n 1987, the Diocese amended its constitution and canons so as to include the 'Dennis Canon.'" Id., text at n. 4.

Whether the existence of the trust will be ultimately upheld is, as I noted in the main post, not a slam dunk. To my mind, that's because the current U.S. Supreme Court is very fractured in its approach to the Free Exercise and Establishment Clauses, and the stability of the precedents can't be taken for granted as a result. But the Supreme Court told the state courts and lower federal courts what steps would be necessary to create a trust, and TEC followed those steps, and SC explicitly ratified that decision. Normally, that should do it.

2. Slightly harder: Extraterritoriality. I agree that there are dioceses that are both called "extraterritorial" or "extra-provincial." However, they are under the metropolitan authority of a province (generally, the Archbishop of Canterbury). Most of these were formed in colonial days, or as mission churches, in areas where the Anglican population was too small to support a province.

My understanding--not disputed by my reader--is that the Breakaway Diocese intends to remain unaffiliated, as a self standing body. That seems to me to pose a problem, as does the notion that a constituent diocese can unilaterally break away and re-align, let alone exist in isolation. As Colin Podmore notes in his report to General Synod, "The Governance of the Church of England and the Anglican Communion,"
The Church of England is not simply an aggregation of dioceses. In the Middle Age, it was called "Ecclesia Anglicana" in Latin, and the"Church of England" in English, not "Ecclesiae Anglicanae" or "the Churches of England." The General Synod is not an assembly of diocesan deputations, but the synod of a national church.
This view is in harmony with Anglican thought from Hooker on. I don't know how these fundamentals of Anglican ecclesiology square with an independent diocese, or with one purporting to secede from the province to which it belongs. (I should in fairness note that Podmore is something of a critic of James Dator's Many Parts, One Body, originally written in 1957, and which argues that the rights of nullification and secession did not apply to TEC; the Dennis Canon, enacted subsequent thereto supports Dator, and the classic secessionist arguments deployed against him seem to me to presume against experience and against logic that TEC is somehow less of a province than is the Church of England.)

3. Status of the Respective Dioceses of SC: Which brings me to the last point. First, let me acknowledge an error on my part; had I read the Diocese's press release in addition to the January 4, 2013 letter of Mark Lawrence I cited in the earlier post, I would have found this statement:
“When the Diocese disassociated from The Episcopal Church we didn’t become a new entity,” Canon Lewis explained. “We have existed as an association since 1785. We incorporated in 1973; adopted our current legal name, ‘The Protestant Episcopal Church in the Diocese of South Carolina,’ in 1987; and we disassociated from the Episcopal Church in October of 2012. The Episcopal Church has every right to have a presence in the area served by our Diocese – but it does not have a right to use our identity. The Episcopal Church must create a new entity.”
So I clearly did err in thinking that the Breakaway Diocese thought it had the right to simply geographically displace TEC. My apologies.

That said, for the reasons in part 2, I think the viewpoint has it rather backward--TEC doesn't recognize the right of a diocese to align itself with another province--and its case is pretty grounded in Anglican history; think of the original (1571/1662) text of Article 37 of the 39 Articles: "The Bishop of Rome hath no jurisdiction in this Realm of England." That's the basis from which Hooker postulates provinces based on national identity. Again, I think that the burden of proof is on those who assert that the Church of England is more of a national church theologically (not in civil law, obviously) than is TEC.

It seems to me that the TEC position--that the Episcopal Church-affiliated diocese in South Carolina is the Episcopal Diocese of South Carolina is consistent with this history and ecclesiology, while the converse position amounts to congregationalism writ large.

I appreciate my reader's comment, and pressing me to think through these issues, as well as pointing out my factual error.


Mr. Mcgranor said...

I guess they are too Protestant; for the Anglo-Catholic A.C.N.A.?

Anglocat said...

Well, this Anglo-Catholic remains comfortable in TEC, but I'm a Charles Gore liberal type. A Happy New Year to you, Mr. McGranor.

Anonymous said...

Dear Anglocat,

Thanks first of all for your graciousness and civility (heaps more than I've encountered from most on the "other side" of this debate, I'm very sorry to say--and I admit both sides have erred in this regard).

Second, thanks for this very considered response. I honor the fact that you are thinking systematically through this and are willing to debate it.

As to your first point, I'm not an attorney, but it seems logical to me (and I realize the law doesn't always follow logic--something that drives me absolutely bonkers!) that this argument for an implied trust via an hierarchical relationship (i.e., sovereignty) runs right up against TEC's own constitution. I'll leave it to the abler words of Mark McCall (himself a very capable legal mind) to thoroughly address the point in his treatise on the topic ("Is the Episcopal Church Hierarchical?" [ ]). At the very least, the matter is far from settled. But I can't for the life of me reconcile the fact that TEC was intentionally founded with the extent of its hierarchy confined within the boundaries of the independent dioceses (the founders eschewed establishing archdioceses even!) with TEC's current assertion that it is an hierarchical, "national" church, especially considering that it has never, until quite recently, presented itself that way. I think that an able judge who takes the time to thoroughly examine the matter would arrive at the same conclusion.

If anything, Bishop Lawrence is exhibiting an extraordinary degree of pastoral generosity in letting those parishes depart the diocese in order to realign with TEC with their property intact. As bishop of a sovereign diocese, he has every right to sue them. (As an aside, is it not revealing to contrast his response to that of the Presiding Bishop when it comes to dealing with departing parishes? I challenge readers to seriously ponder this question: which response is more grace filled and more abounding with Christian charity--+Lawrence's or Bishop Jefferts Schori's?)

As to your second point on Anglican polity, I do not substantively disagree. However, what it points out is how awkwardly Anglican polity operates within the reality of U.S. law as framed by the Constitution. The Founders (of the U.S. and TEC, who were one and the same after all) were acutely aware of this when they placed limits on Anglican polity within the context of The Episcopal Church. A good example of how Anglican polity really doesn't work in an American (U.S.) context is the crisis that became evident when Parliament recently approved gay marriage whilst the CoE didn't. Since there is no separation of church and state in Great Britain, in essence you have one division of the state in direct legal conflict with another. In the U.S., no such crisis exists. Even if the U.S. were to legalize gay marriage it could not (or shouldn't!) compel any religious institution to perform (or even recognize) such marriages if to do so were to violate that institution's doctrine or teaching. All that to say we must tread cautiously when applying ToE treatises to Anglican polity in the States. I would argue that in that regard we are, indeed, legally speaking, "less of a province" than ToE is. Of course, this addresses your third point as well, as you note. You write, "Again, I think that the burden of proof is on those who assert that the Church of England is more of a national church theologically (not in civil law, obviously) than is TEC." Well, except of course that is the very issue we're discussing: this is a matter of civil law (something within the larger context 815 has made abundantly clear). That's not to diminish the importance of the theological issue; it's simply that the theological issue is matter for a separate debate.

Warm regards,

Bryan Hunter
Charleston, SC

Anglocat said...

Many thanks for your graciousness and civility, too, Bryan (if I may), which I think really makes more meaningful exchanges like these possible. Let me also join with you in honoring Bishop Lawrence's (I'm finding writing "Mark Lawrence" silly, and think that using any other title would be discourteous and petty) generosity and pastoral response to those within the historical diocese who do not wish to realign from TEC. You're quite right to raise it, and I rather wish I'd dropped an acknowledgement within my own post.

I won't rehash the ground we've both gone over, other than to say that I think we agree that on the church polity issues there are serious thinkers on both sides (Dator and Pierre Whalon supporting TEC's position; McCall and, to a point, Podmore on that of the Breakaway Diocese). If I were to attempt a synthesis, I would suggest that the colonial experience gives SC its best argument, and post-Civil War developments give TEC its.

Which brings me to a point I should clarify. I suspect that the church polity arguments are a red herring in the civil lawsuit, in that in Jones v. Wolf, the Supreme Court has debarred the courts from considering them; the property disputes must be decided using "neutral principles of law" and the ecclesiastical polity questions cannot be addressed. So, as I see it, the legitimacy under the Church Constitution of the Dennis Canon is something the courts are not empowered to decide, likewise that of the process used to find abandonment by Bp. Lawrence. (There are some liberals in TEC who think the canon was not appropriately employed, too; I haven't done the analysis myself, so I won't speculate). So I think the courts are stuck with the Dennis Canon and the SC adoption of it in 1987. Because they tracked the language in Wolf, I think the courts would be reluctant to find them invalid. But I could be wrong.

The tragedy in all of this is that both sides have been precipitate, in my opinion. Issuing the quitclaim deeds put TEC on a limited timer to take action or be deemed to have acquiesced; charging Bp. Lawrence triggered the current imbroglio. Worse, I think there is a possible settlement to be had. If I were mediating this case, I would urge both sides to try what I call the Gamaliel Option--based on my belief that time will reveal the truth-- we could both be wrong in part and right in part--and whether we really have a future apart or together. It could also take some of the heat out of the situation, as the parties deal with each other in the interim knowing no further damages can rack up. Both sides would have to sign a cease-fire agreement in which they agreed to do nothing for a period of years (say 10 to start), and to waive any statute of limitations or laches defenses against the other during that time period, as well as damages being frozen for the time period. The Breakaway Diocese has shown itself willing to make provision for the TEC adherents, so that too could be worked out.

Each side gets and loses nothing other than the vindication of secular law. The Breakaway Diocese would have functional independence, TEC would not have to worry about losing its legal claims by not moving aggressively (my explanation for the TEC actions you note). At the end of the 10 years, the parties could negotiate, renew, or file their legal actions again. It's not standard corporate law, but then, this shouldn't be. We could get on with mission and, even if we end up separating, do so with less animus, maybe even learning to work together in places. Anyway, one lawyer's mediation dream.

I'm glad we got to exchange ideas, Bryan. Blessings for the New Year.

Warm regards,
John Wirenius

Anonymous said...

Dear John (I honestly don't think I've ever written that--hard to believe),

Thanks for this very well-reasoned response. I find very little to disagree with.

For example, I agree with what you write concerning "neutral principles." My reading of that is that courts should apply the same standard for defining trusts to religious institutions that they do to secular institutions. Given that, I think any reasonable person would be at least hesitant to accept the validity of the implied-trust argument.

(As a side note, the history, including the written record, of the passage of the Dennis Canon is shrouded in mystery and intrigue, which I find to be quite telling. Even canon lawyers for TEC have admitted this and noted it as a problem, which is one of the reasons why DC is still under review by TEC. Notably, at the end of October, 2012, the Virginia Supreme Court ruled the Denis Canon invalid in the Commonwealth, as, of course, has the South Carolina Supreme Court.)

As to restraint, I agree with you completely. But I also lay this entirely at the feet of the PB. The DofSC put in place the very trigger mechanisms it did because it anticipated that 815 was going to try to depose Mark Lawrence ... and the diocese was right. In fact, everything the diocese did up to that point was out of a defensive posture because it saw the handwriting on the wall. There may have been a handful of parishes that were "chomping at the bit" for any excuse to leave TEC (it's important to note that Bishop Lawrence managed with great adroitness to keep those parishes reined in and the diocese largely intact as long as he did), but the diocese as a whole (including Bishop Lawrence--and once again I must thank you for your courtesy in referring to him as such) had absolutely no desire to leave TEC. I've had the privileged of spending a considerable amount of private, unguarded moments with Bishop Lawrence, and I can say without doubt or reservation that the last thing he wanted was to lead the diocese out of TEC. He (and the diocese) was pushed to the brink by the PB and 815, and we had no other choice but to jump and pull the ripcord. It still grieves my heart that we had to do so.

As much as I am compelled by your idea for an amicable settlement (and I can tell you the diocese would have loved nothing more), we simply were not left that choice. We were given no indication, despite extending the olive branch, that the PB was going to pursue any other than the scorched earth policy that she's followed in every other diocese. In fact, the PB's outright duplicity when +Lawrence and +Waldo were meeting with her to offer an amicable compromise speaks volumes as to her real intent.

Blessings to you as well, John. I look forward to following your blog.

God's peace,


Anonymous said...

My family has attended St. Philip's Church for at least ten generations. What does the PB intend to do with the grave sites of my ancestors? Does she intend that they convey with the property? Should TEC succeed in its legal actions, will they sell my church? For it will most certainly be empty.