Bishop Duncan Needs Better Lawyers

In a previous post, I noted Bishop Robert Duncan’s claim that, under the Episcopal Church’s constitution, his rump traditionalist group is the Episcopal Church.  He argues that (i) the preamble of the Episcopal Church’s constitution supposedly requires the Church to remain a part of the Anglican Communion; (ii) the liberal elements of the Church have allegedly left the Communion, in effect abandoning the Church’s house and leaving it vacant; and therefore, he seems to say, (iii) he and his traditionalist friends are entitled to move in and claim ownership of the premises. 

The good bishop also predicts that the secular courts would back his claim.  His legal argument is . . . unpersuasive, for several reasons. 

Let’s look at the preamble of the Church’s constitution, on which he relies so heavily:

The Protestant Episcopal Church in the United States of America, … is a constituent member of the Anglican Communion, a Fellowship … 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.

I’d be very surprised if the secular courts were to read this as establishing a test for who is, or is not, the Episcopal Church. 

(UPDATE 5/15/05:  See this comment on the TitusOneNine blog for my response, with some additional cites, to an argument that the purpose of the preamble amendment was to give "authority" to the preamble.)

First, secular courts generally try to avoid intervening in church affairs as much as possible.  They much prefer to let the churches’ own governance processes sort things out.  Their reticence is grounded in part on the First Amendment’s principle of separation of church and state.  Historically this has been especially true for hierarchical churches, of which the Episcopal Church is one.  I would imagine the same would be true for any church that had, and followed, a facially-reasonable set of governance mechanisms.

Second, the quoted preamble language doesn’t proclaim a fundamental purpose of the Episcopal Church or its constitution.  It merely states a background fact.  Contrast the Church constitution’s preamble with the much stronger language in the preamble of the U.S. Constitution:  The latter explains that the Constitution was adopted “in order to form a more perfect union, establish justice,” etc.  Nothing in the ECUSA preamble suggests that the Church's constitution was adopted in order to keep the Church in the Anglican Communion.

Third, secular courts likely would invoke a standard principle of legal interpretation:  If the drafters of the Episcopal Church constitution, and the delegates who voted to approve it, had intended to require the Church to remain in the Anglican Communion, presumably they would have said so explicitly, in the body of the document.  They didn't.  This is sometimes called the argument from silence.   In theology, the argument from silence can be tricky.  In law, it’s a routine tool of judicial decisionmaking.

Finally, let's suppose secular courts agreed that the Episcopal Church must remain part of the Anglican Communion.  They would still have to determine whether we were in or out.  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 official governing body, nor even a constitution.  Neither does it have any kind of recognized process for determining who is or isn’t part of the Fellowship. 
• Traditionalist primates and their allies 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.

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 ++Rowan Williams were to say that ECUSA is out and the Network 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 U.S. courts would accept in making decisions about rights under secular law.

It would not escape the courts' notice that the Archbishop of Canterbury is a foreign cleric.  Moreover, the ABC is appointed -- not elected -- by the British government then in power.  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.

So I'm going to go out on a limb here:  There is simply no way in hell that a U.S. court would allow ++Cantuar to decide that Bishop Duncan's band of dissidents is entitled to the name and property of the Episcopal Church.

*  *  *

Bishop Duncan surely knows he has no hope of being elected Presiding Bishop of the Episcopal Church when ++Frank Griswold retires.  He seems to think he can get the U.S. courts to bypass the Church’s electoral system, paving the way for his rump group to proclaim him as the Church’s primate.  He really ought to get better legal advice.

Comments

[RickT]

This seems so much like a Hail Mary pass type of argument that I almost wonder if it isn't just a head fake. The comparison to the preamble of the U.S. constitution is apt, and it may be worth noting that, notwithstanding the clear statement of purpose in the US preamble, Jacobson v. Mass stands for the proposition that the preamble creates no rights or powers that aren't expressly stated elsewhere in the principal text of the Constitution.

[Not this time]

I have limited expectations in the preamble argument, not necessarily for the reasons above, but I do question a number of your comments:

"...he and his traditionalist friends are entitled to move in and claim ownership of the premises"

1. I think his argument would be that he ("and his traditionalist friends") never left the premises. In this analogy, however, the house is more of a vacant provincial seat in the anglican communion than some ecclesial governing structure and DFMS.

"...bypass the Church’s electoral system..."

2. I have never heard that stated as an objective. My understanding is that the title "presiding bishop" as conferred by the departed ecclesial body would be irrelevant. Those remaining in the [ecclesial] house would sort out their internal matters as best they could under any applicable governing principles. The only property they would keep would be that in their possession as of the _split.

Meanwhile, the ex-anglican Episcopal Church wanders merrily along with whatever property was under its control and whatever presiding bishop that body of "liberal friends" so chooses.

3. It seems to me that the point is to have the court recognize the fact of a split; this might permit some equitable distribution of property. The notion of a civil court implemented ecclesial coup d'etat is a new one on me.

[bls]

I think it's clear that no matter what happens, ECUSA is indeed a Province in the Anglican Communion. There isn't any mechanism in place to change this status, and it won't change, either, by definition, if ECUSA voluntarily - and that's the word, BTW - absents itself from the Anglican Consultative Council. We are the Anglican Church in America; even if ties were almost completely severed, this would still be true.

And I think you're correct, D.C., that the courts won't intervene. This is, I've been told, exactly why the Diocese of Dallas can flagrantly violate canon law in re: the calling of priests by parishes, and get away with it.

[bls]

(Not this time, the U.S. courts do not care about our theological disputes. You can lament the "heretical" Episcopal establishment all you like, and this fact will not change. If the courts are not interested in the fine points of canon law - and they are not, apparently - they surely aren't going to be interested in the fine points of Biblical exegesis.

It's a nice thought, I suppose, that the courts will take the side of "orthodoxy," for justice's sake, but really: this is a fantasy.

In any case, the Episcopal Church is liberal on the whole. This is exactly what conservatives have been lamenting for years now - and this fact hasn't resulted in possible schism until now. So why would a court take the conservative side in any case? )

[bls]

I should add that I'm not opposed to a dual-Province arrangement in the United States. This seems optimal to me, but I think the idea was flatly rejected by the Windsor Report itself.

[Not this time]

I don't recall making reference to theology in my posting...

Nevertheless, I am no canon lawyer, but I do recall something about there being a legal distinction in some states between cases where a single parish breaks away from a hierarchical church and cases where an hierarchical church splits apart.

Again, this is in reference to allocation of property associated with a parish/diocese.

[bls]

What did you mean, then, by this: "Meanwhile, the ex-anglican Episcopal Church wanders merrily along with whatever property was under its control and whatever presiding bishop that body of "liberal friends" so chooses."? And by this: "I think his argument would be that he ("and his traditionalist friends") never left the premises."?

How did we become "ex-Anglican," if not through our alleged "heresy"? Isn't the thing about "traditionalism" a theological argument, rather than a legal one?

[Not this time]

-the references to "traditionalist" was drawn from our host's terminology. The word "liberal" was the best counterpoise I could come up with, as his article does not use such labeling for both sides.

-as for the term "ex-Anglican," I did not comment on the underlying theological issues, but referenced relationship to the Anglican Communion.

It is true that this relationship may depend on a group's theology, but I did not imply that a civil court would weigh the theological arguments of the two sides.

It is clear, however, that ECUSA faces some sort of choice as to remaining in the Anglican Communion or walking apart - to use terminology from the Windosr Report.

[bls]

Yes - but again: there isn't any mechanism in place to "eject" ECUSA from the Anglican Communion. That's not the basis of "Communion" in the first place. We would simply be "out of Communion," or "snubbed," or "not attending the meetings of the ACC." These are a theological or social conditions, not legal ones.

And if "Communion" has never consisted of a particular legal status, only in "bonds of affection with others," I simply don't see how or why a court would ever decide in favor of the conservatives when it comes to the Church's status as a whole. If it wanted to get involved in the first place, which it doesn't.

[Not this time]

I am not sure what you think that I am saying...is there another poster I do not see?

My comments were simply that the host's posting appeared to me to go beyond what Duncan was saying.

My understanding of Duncan's argument is that ECUSA's constitution (i.e., a legally cognizable document) has a preamble (my comment - a less important part of the legal document) that relies on a certain fact to characterize the body constituted by that constitution.

I assume that Duncan would continue by stating that when that body took action which changed this characterizing fact (my comment - regardless of what that fact may be), then it acted ultra vires, creating a split in the hierarchy body.

I assume the following arguments might also be made:

(a) A split in a hierarchical body is different from a single parish leaving; (b) those who sought to stay within the authority of the constitution should not be required to transfer their property to those moving out from under the authority of that constitution.

My comment: each state will decide on the basis of its particular law for dealing with religious organizations and trusts created by artifacts such as the Dennis Canon.

[bls]

I think you might want to read the host's previous post which quotes Duncan directly and extensively. If I'm reading it right, he claims that the Network is already the real American Anglican Church - and clearly that, I hope you'll agree, is not the case. ECUSA is still actively engaged in the process of responding to the Windsor Report! Duncan is engaging either in wishful thinking or in bluff.

Again: ECUSA cannot be thrown out of the Anglican Communion; there isn't any mechanism to do this. It has also stated its intention to remain within the Communion. Further, the Windsor Report acknowledges that the consecration of Gene Robinson - the precipitating incident - was in fact completely legal.

I honestly don't understand what your point is. I feel the same way as you do, I think: to whom are you speaking?

[bls]

But wait. Are you actually arguing that a descriptive phrase in the preamble of the Church's constituion, "a constituent member of the Anglican Communion," is in fact its sine qua non and therefore its legal definition?

That if it should become separated from the Anglican Communion, for whatever reason, it is no longer The Protestant Episcopal Church in the United States of America, and that its assets belong to whoever comes along to claim them?

That's quite a claim, I have to say!

[J. C. Fisher]

If anything, I think ECUSA's "Preamble" speaks more to the AC: as a "constituent" member, it's declaring "where ECUSA is, there is a constituent of the AC."

Let's not forget: ECUSA predates the AC by a hundred years. It's debateable whether there would even *be* an AC without it (or whether the Anglicans of Commonwealth nations would just be foreign provinces of the CofE).

Anyone can call themselves "Anglican" (hence all the so-called "continuing churches"). No one, least of all the AC, can make ECUSA *stop* calling itself "Anglican" (and furthermore, a "constituent member of the Anglican Communion"). Since ECUSA ain't going anywhere (well, except bearing our crosses daily, as we build/hope for the Kingdom of God, of course!), time---and the Spirit of God working through time---will tell where "Historic Anglicanism" really lies. (i.e. when yet another of those "apologies"---that The Church, writ large, has been making lately---comes *ECUSA's* way, I hope we Episcopalians will be gracious in reconciliation!)

[bls]

Anyway, I'm curious as to the definition of "walking apart." What is the actual meaning of this phrase? Does it have any that we know of?

[David Huff]

Anyway, I'm curious as to the definition of "walking apart." What is the actual meaning of this phrase? Does it have any that we know of?

I suspect it's whatever the AAC/Network wants it to mean, in a sense that will further their plans to break up the church ;) Or, as the collolary that our Bishop whips out all the time says, "We're not leaving the church, but it is leaving us." (yeah, right. that's well defined ;)

[Tobias Haller]

Thanks, JCF, for the clarity. In addition to it being highly unlikely that a US court at the Federal level would essentially treat the Episcopal Church as if it were a foreign embassy, history shows us the contrary to be true. As the Preface to the 1789 BCP put it, the Episcopal Church became ecclesiastically independent of the Church of England when it constituted itself as a "national" church on these shores. (Just as the Church of England asserted itself to be against Rome at the Reformation; not solely over doctrinal differences, but due to the strong notion favoring the concept of the "national church" idea. It is for this reason, not because he might make mistakes, that the "Bishop of Rome" has no authority in England any more than any other foreign prince.)
You are also right to point out the importance of constituent. The Episcopal Church predated the creation of the Anglican Communion (in any recognizable form) by nearly a century, and was always an independent church within a fellowship of churches even before the fellowship had a name. One could well argue that for the Anglican Communion to seek to disfellowship one of its founding constituents would render it subject to ceasing to be truly Anglican.
Our ecclesiastical independence (within a fellowship) is also clear in the original language of the enabling resolution that led to the first Constitution of the Episcopal Church as proposed in 1785, and adopted with amendments in 1789. The present preamble dates from 1967, and is descriptive, not prescriptive: it contains no restrictive nor directive language that a court could "order" be followed.
Finally, in hierarchical churches the courts always look to the hierarchy; and in the Episcopal Church the interpretation of the Constitution and Canons is in the hand of the General Convention, and no one else. The General Convention can amend or remove the preamble to the Constitution, as well as interpret it.
Bishop Duncan and his recusant friends do indeed need better legal advice in order to carry out this revolution -- if indeed that is their intent.

[Sinner]

First, there is a clear mechanism by which ECUSA will be ejected from the communion, and that will in all likelyhood begin in June:

1. The ACC amends the schedule of membership of its consitution.
Such amendment requires a simple majority of delegates;
the Global South has a clear majority there - although not yet one that represents
its membership worldwide. (Were the Anglican Commuion truly representative) ECUSA would have been thrown out years ago.

Such a motion can be raised by 10 members any meeting, whether it is on the agenda or not. The delegations for West Indies, Uganda, Nigeria are basically suficcient to bring this motion.

2. Such an amendment then needs a 2/3rds supermajority of primates to agree -
counting Griswold & Hutichson. This is 25 primates. The Global South has only
about 20 so far - but another 5 or 6 are waiting to see whether ECUSA
"reforms or resigns" at GC2006. The ACC will pass this amendment in June, then the Primates will act after GC2006, and which point ECUSA is OUT.

3. Duncan was seated as Archbishop of North America at the CAPA conference in February. He is treated as de factor leader of the North American province by a majority of the other primates, and all the largest other provinces.
Their refusal to communicate with Griswold - and then have an eucharist with Duncan, was an explicit sign of this relationship in Newry.

[JRG]

Just one problem with "Sinner's" scenario - membership in the ACC is not membership in the Anglican Communion. Archbishop Rowan Williams has shown no sign he is ready to disavow the Episcopal Church. It is HIS recognition that is the make or break point. In fact, his appointment of Peter Carnley to head the Panel of Reference would suggest a different scenario. As for what will happen at the ACC, and primates, I wouldn't be so sure of the numbers. A vote such as "Sinner" describes is not so likely to result in throwing the Episcopal Church out as to creating a split in the Anglican Communion. The ACC will be very hesitant to do anything resulting in that. I seriously question the count of primates as well.