There’s no dispute that individuals can leave the Episcopal Church ("TEC"). The question is, when a group of individuals in a diocese does so — as happened earlier this month in the Diocese of San Joaquin — does the diocese itself (and its property) likewise leave TEC?
TEC’s constitution and canons indicate the answer is clearly "no." In a nutshell:
The Episcopal Church's constitution and canons require that a diocese's religious ministry and real property must be under the control of clergy who have vowed to conform to the "discipline" of the Episcopal Church [which I'll refer to as "the discipline vow].
I could not find any provision for such individuals to renounce that vow while still retaining any authority in their dioceses or parishes. It logically follows that:
A) an Episcopal Church clergy member, who by definition has taken the discipline vow, acquires certain authority in a diocese;
B) under the Episcopal Church's constitution and canons, the authority in question is reserved for clergy members; and
C) the clergy member subsequently repudiates the Episcopal Church's discipline,
D) the clergy member necessarily and automatically forfeits the right to exercise the authority in question, by virtue of his or her act of repudiation.
And given the sine-qua-non role of clergy members in any diocese of the Episcopal Church, it further follows that:
The Episcopal Church's constitution and canons implicitly prohibit a diocese per se from unilaterally 'leaving' the church, because the diocese's bishop and other clergy members are inherently incapable of taking or authorizing such action.
Putting it another way: It's no more possible for a diocese to leave the Episcopal Church than it is for the Chevrolet division of General Motors, or for GM's wholly-owned subsidiary OnStar, to decide that they're going to leave GM and be part of Ford or Chrysler instead.
The discipline vow
Here are some examples of the constitutional- and canonical provisions; I’m sure the national church's lawyers will do a much better job than this when the time comes:
• Const. art. VIII prohibits ordaining any priest or deacon unless the candidate takes the discipline vow. The Book of Common Prayer, whose use is constitutionally mandated for all dioceses (see below), likewise requires all bishops to take the discipline vow at ordination.
• Const. art. X requires all dioceses to use the Book of Common Prayer approved by General Convention; any special non-BCP services must have the approval of the bishop — who is required by the BCP itself to take the discipline vow.
• Canon I.7.1(f) and (g) require annual financial audits of all dioceses, parishes, etc., with audit reports to be made to the bishop, i.e., to an individual who has taken the discipline vow.
• Canon I.7.3 prohibits transferring or mortgaging parish real estate without consent of the bishop, who has taken the discipline vow, except pursuant to regulations prescribed by diocesan canons.
• Let’s not forget the Dennis Canon (I.7.4):
All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons. [Emphasis added]
[Footnote: The people who claim that the Dennis Canon was never properly enacted may well be clutching at straws. That canon has been in the published canons for going on 30 years (and some 9 or 10 General Conventions). To my knowledge, no one has ever objected to the Dennis Canon’s inclusion in the church’s published canons, nor tried to get any General Convention to state that the canon is not effective. That being the case, I think a court would be extremely reluctant to rule that the Dennis Canon was not in effect. It’s been argued, e.g., in the California litigation, that denominations cannot unilaterally impose a trust on their congregations’ property without conforming to state trust law. The U.S. Supreme Court, however, suggested in Jones v. Wolf that a denomination can do precisely that. The suggestion seems to have been a non-binding dictum, but I can envision the argument that the Free-Exercise and Establishment Clauses of the First Amendment override any contrary state law. We’ll have to see how future litigation plays out.]
• Canon I.14.3 requires that vestry meetings be presided over by the rector, who is required to take the discipline vow.
• Here’s a biggie: Canon IV requires that anyone holding virtually any significant religious lay ministry position — Pastoral Leader, Worship Leader, Preacher, Eucharistic Minister, Eucharistic Visitor, or Catechist — must be licensed by the Ecclesiastical Authority, which under Canon IV.15 means the bishop (who has taken the discipline vow) except during times of vacancy. Moreover, the lay minister must serve under the direction of a priest or deacon (who has taken the discipline vow). The lay minister’s license can be revoked essentially at will by the Ecclesiastical Authority.
Implications of the discipline vow
Anyone claiming that dioceses per se (as opposed to their congregants) can unilaterally remove themselves from the discipline of the Episcopal Church must find a way to reconcile that claim with the provisions summarized above.
Such claimants should also keep in mind that when it comes to disputes over property, secular courts usually treat church constitutional- and canonical provisions as though they were contracts entered into by each person joining, or accepting a position in, the church. (For citations on that point, see the national church's recently-filed post-trial brief in the Virginia litigation.)