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.