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.
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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.