The preamble to the Episcopal Church's constitution does NOT mandate Anglican Communion membership

Some scripturalists in the Episcopal Church (TEC) are trying to revive the argument that the Episcopal Church is required by its constitution to belong to the Anglican Communion. They're doing so to position themselves for future court battles over church property. Such court battles could well come to pass if TEC were ever kicked out of the Communion and one or more successor scripturalist churches accepted in its place.

[A variation on this argument seems to try to put a spin on TEC's claim to be a hierarchical church — sure thing, the scripturalists say, but the top of the hierarchy is the Archbishop of Canterbury, and he will ultimately call the shots about our internal affairs.]

These scripturalists' intent is to argue that their new church(es) are the lawful owner of TEC's property — real estate, cash, pension funds, chalices, vestments, staplers, stationery, etc. — and that the so-called apostates currently running the church will be out on their ears in the street.

[Such property disputes will eventually have to be decided by the secular courts. This isn't because the courts are trying to oppress the faithful, but because American society will not tolerate people engaging in "self-help" in such matters, of the kind we've tragically seen recently in Gaza.] 

From a purely-legal perspective, I see essentially zero chance that American courts would ever go along with this TEC-constitution argument in deciding who owns American church property. This posting is a consolidation of things I've written elsewhere about why I think this. (See also Property ought to go where it can be best used.)

The preamble's text

It's always useful to start with the actual text. The relevant reference in TEC's constitution is in its Preamble (emphasis and extra paragraphing are mine):

PREAMBLE

The Protestant Episcopal Church in the United States of America, otherwise known as The Episcopal Church (which name is hereby recognized as also designating the Church),

is a constituent member of the Anglican Communion,

a Fellowship within the One, Holy, Catholic, and Apostolic Church,

of those duly constituted Dioceses, Provinces, and regional Churches in communion with the See of Canterbury,

upholding and propagating the historic Faith and Order as set forth in the Book of Common Prayer.

This Constitution, adopted in General Convention in Philadelphia in October, 1789, as amended in subsequent General Conventions, sets forth the basic Articles for the government of this Church, and of its overseas missionary jurisdictions.

All but the last sentence of the Preamble was added in 1967.

[I've argued elsewhere that a church's membership in the Anglican Communion "fellowship" is pretty much like a family's membership in its "extended family" of aunts, uncles, and cousins.]

[Mark Harris pointed out in 2003 that the reference in the Preamble to the Book of Common Prayer can only be to the U.S. church's BCP, and that "the authority for determining the content of that Book is the same as the authority for the actions determining other matters at General Convention, namely the authority to decide matters that come before it ...."]

The "Communion" language seems to have been a passing nod to ecumenism, not a foundational statement of identity

The scripturalists claim that, when the 1967 General Convention approved adding the Communion language to the Preamble, its intent was to mandate that TEC always remain part of the Communion. I'm not aware of any evidence to support that claim.

A more plausible view is that the Communion language was intended simply as an inoffensive endorsement of that era's general trend toward ecumenism. Note that the 1967 General Convention also adopted a resolution, “The Visible Unity of the Whole Church Fellowship 1967″:

Resolved, That this General Convention affirm that the object of this Church’s ecumenical policy is to press toward the visible unity of the whole Christian fellowship in the faith and truth of Jesus Christ, developing and sharing in its various dialogues and consultations in such a way that the goal be neither obscured nor compromised and that each separate activity be a step toward the fullness of unity for which our Saviour prayed.

(Reprinted in the ECUSA Handbook for Ecumenism, rev. 2002, p. 10.) This resolution came just three years after the establishment of the Standing Commission on Ecumenical Relations as “a combination in 1964 of three former Joint Commissions concerned with ecumenical matters.” (Id. at 16.) 

Some legal-analysis points

I’d be very surprised if the secular courts were to read the Preamble as requiring TEC to remain a member in good standing of the Anglican Communion, on pain of forfeiting its property.

• First, as a general proposition, secular courts try to avoid intervening in churches' internal affairs; they much prefer to let the churches’ own governance processes sort things out whenever possible.  The courts' reticence is grounded in part on the First Amendment’s principle of separation of church and state.

• Second, the Communion language in the Preamble doesn’t proclaim a new foundational purpose of the Episcopal Church or its constitution; it merely mentions a well-known background fact.  Contrast the Preamble's language with the much stronger language in the preamble of the U.S. Constitution (which was included in the original document, not added later by amendment). The latter preamble explains that the Constitution was adopted “in order to form a more perfect union, establish justice,” etc.  Nothing in the TEC Preamble suggests that the church's constitution was adopted in order to keep the Church in the Anglican Communion.

• Third, if the 1967 General Convention had intended to require TEC to remain in the Anglican Communion, presumably it would have amended the body of the constitution accordingly in various places, not simply incorporated an unremarkable ecumenical observation into the Preamble. It didn't do so. In theology, this so-called "argument from silence" can be tricky. In law, however, it's a routine tool of judicial decisionmaking. 

• Fourth, it's impossible that the 1967 delegates intended for the Preamble to subordinate their authority as General Convention to the authority of the Communion as a whole: At the time there was no authority of the Communion as a whole (and there still isn't); of the four present-day "Instruments of Communion," two of them didn't even exist in 1967, and the remaining two were anything but governing bodies:

• The Anglican Consultative Council was not formed until October 1969, and its title refutes any notion that it is an instrument of governance;
• It's likely that some Anglican primates would purely love to be an Anglican Curia in charge of the Communion and its member churches, but their Primates' Meetings didn't start until 1979, so the 1967 General Convention delegates couldn't have intended to cede authority to them;
• The Lambeth Conferences of bishops meets only once every ten years and thus can hardly be called a governing body;  and
• Various archbishops of Canterbury, including the incumbent, Rowan Williams, have disclaimed any authority over any provinces of the Communion except the Church of England itself.

The difficulty of determining who's actually in the Communion

For the sake of argument, however, let's go along with the scripturalists for the time being: Let's suppose that U.S. secular courts agreed that the Episcopal Church must either remain part of the Anglican Communion or forfeit its property.

The courts would still have to determine whether TEC was in fact in or out of the Communion.  That’s where they would have to try to hack through an ecclesiastical thicket — which, as noted above, they’re going to be reluctant even to approach in the first place.   

• The courts would immediately note that the Anglican Communion has no recognized process for determining who is or isn’t part of the Fellowship.  Some scripturalists are claiming that the Primates’ Meeting now has such authority.  But courts are very unlikely to accept that claim, not least because it is anything but generally accepted in the Communion. The same is true for the Anglican Consultative Council.

• It's been suggested that the simplest test would be:  Does the Archbishop of Canterbury himself recognize the present Episcopal Church as being in communion with his see?   On its face, this test is not without its attractions.  And from an ecclesiastical perspective, if the ABC were to say that TEC is out and some dissident group is in, many Anglican churches might well go along with him.

But we're not talking about ecclesiastical tests.  We're talking about tests that American secular courts would accept in making decisions about rights in American property under American secular law.

It would not escape the courts' notice that the Archbishop of Canterbury is a foreign cleric, nor that the ABC is appointed — not elected — by the British government then in power, with zero representation for the American church in that process (hear those faint echoes of the Boston Tea Party?)  Furthermore, it's not clear that the Archbishop is required to consult with anyone, nor to be accountable to anyone, in deciding who is or is not in communion with his see. 

Conclusion

All of the foregoing analysis would have to be fleshed out before it could go into a legal brief. But from the facts currently available, I'm pretty confident that U.S. courts deciding property disputes would not give much weight, if any, to the Preamble's mention of the Episcopal Church's membership in the Anglican Communion.

Comments

[Chip]

Interesting article - but I believe that TEC's claim to own the property of seceeding parishes is based upon a 1979 Canon. Were TEC to cease being a member of the communion - which now is appearing more likely than not - then such a change would give departing congregations an argument that there has been a substantive change in the "deal" (a breach) under which the Church was operating at the time they did not object to the 1979 Cannon change. It would also be clear evidence of a divide which would be helpful to the Anglican District of Virginia congregations.

[Tim]

Counselor, you know how documents are interpreted at law. Whether or not a statement is ambiguous is a question of law. If the judge finds that a statement is ambiguous, then the intent of the parties to it is a question of fact. I'm not a judge, but I think finding ambiguity in the Preamble would be a stretch. And the attempt by the General Convention to state that only the Convention can interpret the meaning of the constitution and canons would provide a judge with an opportunity for a hearty laugh.

Chip is correct. I wonder how well the constructive trust that the Dennis Canon attempts to impose will stand up in individual states if the underlying constitution ceases to be applicable.

[D. C. Toedt]

Chip [11:20 a.m.] writes:

... I believe that TEC's claim to own the property of seceeding parishes is based upon a 1979 Canon. Were TEC to cease being a member of the communion - which now is appearing more likely than not - then such a change would give departing congregations an argument that there has been a substantive change in the "deal" (a breach) under which the Church was operating at the time they did not object to the 1979 Cannon [sic; canon] change.

That's not a bad argument, Chip. I suspect, though, that 815's lawyers would respond along something like the following lines:

(1) that the Dennis Canon has nothing to do with the Anglican Communion, but merely "clarifies" that TEC has (supposedly) always been a hierarchical church and not a congregational one; and

(2) that even under your argument, the scripturalist dissidents would still have to show:

(a) that the Dennis Canon was a material change in the church's organizational structure, and

(b) that, in exchange for congregations' forbearance of their "right" to walk away from TEC, the church implicitly agreed to continue participating in the Anglican Communion.

As to point 2(a): I don't follow church politics or history that closely, but I've never heard of any kind of movement to try to repudiate the Dennis Canon, nor to establish that TEC is a congregational church. In fact, I don't remember hearing or reading that the canon was even controversial when it was enacted. (I know some claim that the canon was not properly enacted, but that's another issue, and I'm not sure it'd be dispositive in any case.) I also think 815 could adduce considerable evidence to show that, while a few cardinal parishes have certainly thrown their weight around from time to time, in practice as well as in theory the church has pretty much always been governed hiearchically and not congregationally. All this might well suggest that the Dennis Canon's enactment was not a material change.

Concerning point #2(b), it's not apparent to me that individual congregations, or even dioceses, would have had any ecclesiastical or legal power in the first place to walk away from TEC after enactment of the Dennis Canon.

From what I understand, essentially every Episcopal congregation is "begotten" by its diocese, if you will, and is deemed a sub-unit of the diocese, much as a corporation may be organized into various divisions and departments. The arguable exceptions are a few congregations that allegedly pre-date the Revolution.

Moreover, from what I can tell, all but the nine original dioceses that formed the church were likewise begotten by the national church, either as a follow-up to missionary work or by carving up existing dioceses that had gotten big.

That being the case, it's hard to envision how any such "begotten" diocese or congregation could secede from TEC without the church's consent, any more than a department of a business corporation could secede without the coporation's consent.

But we still have to address the arguable exceptions, namely the original nine dioceses and the pre-TEC parishes (if any). The answer seems easy: It's hard to imagine that these bodies would have regarded the absence of continued communion with the ABC as a deal-breaker, especially so soon after the Revolution. (This seems even more true given that +Seabury was willing to be consecrated bishop by Scottish non-juror bishops when the English bishops declined to do so.) The burden of proof would be on those asserting that it would have been a deal-breaker; from what little I know, I don't see how they can carry that burden.

Disclaimer: I can't speak for 815, of course; I'm not their lawyer, and in fact I don't think I have any formal connection with any TEC body except membership in my (very-orthodox) parish.

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Tim [11:53 am], I'm not sure I understand your point. At the moment I don't see any ambiguity in the Preamble at all; it simply doesn't mean what the scripturalists claim it does — and yes, a judge likely would rule on that as a question of law.

You may be thinking that my mention of the ecumenism point in my main posting creates an ambiguity. I mentioned that point solely as a possible motivation for GC 1967's approval of the Communion language for the Preamble. Just because particular language was inspired by a certain motivation, it doesn't follow that the language is ambiguous. If I agree to sell you my car for X dollars, and it so happens that my motivation for selling is so that I can buy a new one, that doesn't create an ambiguity in my covenant to sell.

[Mike Watson]

D.C. writes:

The scripturalists claim that, when the 1967 General Convention approved adding the Communion language to the Preamble, its intent was to mandate that TEC always remain part of the Communion. I'm not aware of any evidence to support that claim.

A more plausible view is that the Communion language was intended simply as an inoffensive endorsement of that era's general trend toward ecumenism.

I haven't heard the argument that the intent was to mandate that TEC always remain part of the Communion. That's not to say that if doesn't remain such, there would not be consequences. But speaking of claims for which there isn't any evidence, the idea that inserting the self-identification as the first sentence of the Constitution was merely an inoffensive ecumenical gesture certainly meets that test. It is negated not only by the text, but the language of the resolution presenting it to the effect that the preamble was "an integral part of the Constitution." Annotated Constitution and Canons (1981 edition), v. 1, p. 6.

By the way, who are these "scripturalists" who are mentioned seven times in this blog entry? People who have respect for Holy Scripture (gasp)? And what is the signficance of that characterization to positions taken on the TEC constitution?

Regarding the Dennis Canon, how could a canon not adopted until 1979 unilaterally affect ownership of property held by those who had not agreed to it, and with retroactive effect? The obvious answer is that it could not. As a California court observed in 2004, “We know of no principle of trust law stating that a trust can be created by the declaration of a non-owner that the owner holds property as trustee for the non-owner.” The law on this subject is in accord with common sense, and there is no serious argument that enactment of the Dennis Canon could by itself affect the ownership of property. That is why those arguing the position of the national church have been insistent in maintaining that the Dennis Canon was merely declaratory of an already existing legal structure. If it was not, arguments based on the trust principle it enunciates should, in general, fail. One early indication of weakness surfaced after the canon was adopted. As revised in 1981 by the Standing Commission on Constitution and Canons, the Annotated Constitution and Canons said of the Dennis Canon only that it was “considered by some to be declaratory of existing law” and offered no support for this position. The lack of support for the Dennis Canon as declaratory of existing law led a witness in a Connecticut church property case, former New York appellate judge and ECUSA Chancellor Hugh Jones, to testify that although he viewed the commentary in the Annotated Constitution and Canons as an authoritative work, he "disagreed very strenuously with the suggestion . . . of that text that the Dennis Canon was not declaratory or that it introduced a new concept.” (Quotation from the characterization of his testimony by the Connecticut Supreme Court.) Jones testified that he viewed the Dennis Canon as recognizing a preexisting trust on parochial property in favor of ECUSA. Rector, Wardens and Vestrymen of Trinity-St. Michael’s Parish, Inc., et al. v. The Episcopal Church in the Diocese of Connecticut, et al., 620 A. 2d. 1280, 1288 (Conn. 1993). What seems apparent is a tension between the historical perspective of the chronicler of the legislative history, and the perspective of the Chancellor serving as witness who realizes how weak ECUSA’s position becomes if the Dennis Canon doesn’t reflect existing law.

I'm not going to go into detail here, but I think the case that the Dennis Canon was merely declarative of an already existing trust relationship existing throughout the ECUSA dioceses is not tenable. There are probably some cases where because of action taken at a diocesan or local level such a preexisting relationship could be argued to have existed. And in those cases, it would be that circumstance, not the Dennis Canon, which makes the difference.

[D. C. Toedt]

Mike Watson [2:47 pm] writes: ... the language of the resolution presenting it [the Communion language amending the Preamble] to the effect that the preamble was "an integral part of the Constitution." Annotated Constitution and Canons (1981 edition), v. 1, p. 6.'

Mike, I don't see how that fact, without more, alters the analysis. If the drafters had intended the Communion language to make a fundamental change in the nature of TEC, it's impossible to imagine they wouldn't done so expressly.

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Mike Watson asks: 'y the way, who are these "scripturalists" who are mentioned seven times in this blog entry? People who have respect for Holy Scripture (gasp)? And what is the signficance of that characterization to positions taken on the TEC constitution?'

I use the term "scripturalist" to denote people who claim that the Bible must be always be given supreme authority in all matters of faith or morals. (I tend to think of such people as bibliolators, but I know that's an unfair generalization.)

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I share your uncertainty about how Dennis-Canon arguments would play in various courts.

[Mike Watson]

D. C.: I didn't say that the drafters of the preamble intended the language about constituent membership in the Anglican Communion to make a fundamental change in the nature of TEC, and I didn't notice where anyone else said that either. I would argue to the contrary -- there was no attempt in 1964-67 to make a fundamental change in the nature of TEC, but to add a statement of self-identification reflecting what had been and continued to be the case.

Ordinarily, the language whereby a constitutional amendment is adopted doesn't say that the amended language is an integral part of the constitution. It doesn't need to. Here, the statement in the resolution that the new language was an integral part of the Constitution negates the idea that just because the language is part of the preamble it is to be accorded less significance.

[bls]

Anyway, even if Chip is right - and it's the best argument I've seen so far - the problem is that TEC has declared its desire to remain in the Communion. Not once, but many times.

So if it is ejected - something that actually doesn't seem very likely at all at this point - then it hasn't breached its contract at all. And it still owns the property, the dissenters don't.

The real question is: why don't dissenters put their money where their mouths are and simply walk away from TEC? People do that when their principles tell them they can no longer stay; they don't see what they can gather up as they leave. And if they're so sure TEC going to be ejected, then why should they care about leaving their property behind? They can simply join up with the Anglican Communion once that happens, and everything will be as it was, except in perhaps rented space.