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.
• "Young men wearing T-shirts deemed too tight or haircuts seen as too Western have been paraded bleeding through Tehran’s streets by uniformed police officers who force them to suck on plastic jerrycans, a toilet item Iranians use to wash their bottoms. [The photo in the Times shows the uniformed police officer wearing a hooded mask.] In case anyone misses the point, it is the official news agency Fars distributing the pictures of what it calls 'riffraff.' Far bloodier photographs are circulating on blogs and on the Internet."
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