10/03/2006

Seceding from the Episcopal Church: Can it be Done?

The Diocese of San Joaquin is widely thought to be preparing to secede from the Episcopal Church. It is at least considering doing so. So the question needs to be asked, “Can a Diocese secede from the Episcopal Church, and if so how?”

What follows are some thoughts on this matter. I must first, of course, make the following obvious disclaimer: I am not a canonist and my conjectures only arise from interest in the subject, not expertise. Thus I am sure to be soundly criticized. This is an exploratory exercise, not a finished product. Still, perhaps it is useful to proceed.

The matter of secession under the current Constitution and Canons:

What makes a Diocese part of the Episcopal Church is the “union” it has with General Convention. That is, its bishop is a member of the House of Bishops and the Deputies entitled to represent the Diocese are members of the House of Deputies of General Convention.

The Dioceses that formed the Episcopal Church, that is who sent bishops and deputies to the first and perhaps several conventions after were admitted by virtue of presence, that is, by actual inclusion. The question of admission of dioceses is now covered by Article V of the Constitution. But in every case the Diocese becomes part of the Episcopal Church by inclusion in General Convention, which determines admission in every instance.

There are rules in the Constitution covering the admission, division, joining, cession of diocesan territory and/ or jurisdiction and retrocession of jurisdiction.

There are provisions under Canon I.11 (Of Missionary Jurisdictions) for a Diocese to secede from the union with General Convention, specifically when a Missionary Diocese “beyond the territory of the United States of America” (1.11.3b) becomes “extra provincial” or part of another Province or where several Dioceses form part of a new Province. The General Convention can grant autonomy to such Missionary Dioceses.

There seems to be nothing in the Constitution or Canons concerning the ability of a Diocese part of “the territory of the United States of America” to secede from the Union. The special situation of the division between the Episcopal Church in the United States of America and the Episcopal Church in the Confederate States of America does not provide any clarity, in part because the argument of being part of “the territory of the United States of America” was precisely the question of civil union – namely can a state secede from the Union. If a state could, then the diocese in that state were no longer part of the territory of the United States, and were no longer clearly part of the Episcopal Church. If states could not secede, then the diocese were part of the Church. Unfortunately the only way to determine if a state could secede was to try by force of war. The true separation of the two bodies of dioceses, one in the North the other in the South, awaited the end of the war. At the end there was one nation and one Church.

So what happens if the clerical and lay leadership of a Diocese simply walk away? What if the Convention of a Diocese stops sending member bishops and deputies to General Convention or House of Bishops meetings, it stops contributing to the budget of the Church?

Contributions to the budget are a special case, for there is a canon regarding assessments. (Canon I.1.8) Presumably failure to pay the assessment constitutes a disobedience of canon, and opens a portal for the claim that because the leaders of the Diocese have abandoned their fiduciary responsibilities they have broken the canonical requirements for inclusion in the Episcopal Church.

But what about non-attendance? Suppose Bishop and Deputies simply do not attend meetings? At what point can the General Convention declare the representation of the Diocese vacated and appoint representatives or provide for the territory of that diocese to be absorbed by neighboring dioceses, or declare the area a mission territory to which it will appoint a bishop? I see nothing helpful in the canons, which means I suppose that General Convention can act as it sees fit.

There is, however, the matter of unqualified accession to the Constitution and Canons of the Episcopal Church. The admission of new dioceses into union with the General Convention includes submission of the Constitution of the Diocese which includes a statement of “unqualified accession to the Constitution and Canons of this Church.” (Constitution V.1) But what about those dioceses whose admission formed the Convention out of which the Constitution was written, or those who were admitted prior to the requirements of “unqualified accession (if such a time ever existed)?” It can be argued that those dioceses have in fact conformed by practice. But whatever those arguments, bishops, by their unqualified pledge at ordination, are required to conform to the Constitution. Here is what the oath looks like: “In the Name of God, Amen. I, N., chosen Bishop of the Protestant Episcopal Church in N., do promise conformity and obedience to the Doctrine, Discipline, and Worship of the Protestant Episcopal Church in the United States of America. So help me God, through Jesus Christ. (from the 1789 BCP). Now the form reads (from the Constitution – VIII) “I do believe the Holy Scriptures of the Old and new Testaments to be the Word of God, and to contain all things necessary to salvation; and I do solemnly engaged to conform to the Doctrine, Discipline, and Worship of the Episcopal Church.”


When a Diocese changes its own Constitution or Canons to strike unqualified accession or conformity, and the Bishop of that Diocese has declared him or her self to be subject to the Constitution of the Diocese and not the Episcopal Church there has been a breach of unqualified accession. At that point, it seems to me, the Diocese and / or the Bishop has defaulted on the oath of conformity. At some point the General Convention can declare the dissolution of the union between the Diocese as currently constituted and the Episcopal Church and reconstitute the diocese with a Constitution that gives unqualified accession and with a bishop who continues a pledge of conformity.

It seems to me then that there is a basis on which the General Convention could declare a Diocese vacated by its Bishop and Diocesan Convention, and by extension by its Deputies – the proof of which would be that the Diocese fails to send representatives, fails to financially support or fails to exercise authority in conformity with the Constitution and Canons of the Episcopal Church. What the General Convention then does with the ministry in the territory now vacated can be dealt with by reorganizing the diocese.

To declare a diocese vacant is not to declare that it no longer exists. Since a diocese represents the ministry of this church in a specific territory that work can be reassigned in a variety of ways congruent with the Constitution and Canons of the Church. It can be argued that the material and financial resources previously entrusted to the Diocesan offices now declared vacated revert to the trust of the Episcopal Church for the ministry to be done in that territory in whatever manner determined by the General Convention. Canon maintains this, but it is unclear just how civil law will understand the matter.

Since the church is made up of people who form a voluntary organization there is nothing that can prevent individuals from leaving. They could indeed form a new diocesan structure and seek other synod arrangements. Since the Episocpal Church would not be vacating its ministry to a particular area jurisdiction, any such synodical arrangements would almost surely be with a church not in communion with this church since we state in our Canons (I.11.4) that “no two bishops of Churches in communion with each other should exercise jurisdiction in the same place; except as may be defined by a concordat adopted jointly by the competent authority of each of the said Churches, after consultation with the appropriate inter-Anglican body.”

The conclusion is then that no Diocese may secede from the Union that constitutes the General Convention. People may go, but the missionary obligation of the Episcopal Church for the work in the territory vacated remains and the determination of the ecclesial structure of the work done in that territory is made by the General Convention.

When those who leave wish to take property and financial resources with them a wide range of options arise. Unfortunately, since vacating the premises assumes non conformity to the Constitution and Canons there is in principle no reason why those leaving will agree that all such material effects are held in trust for and by the Episcopal Church. Matters are made all the more difficult because the pure case of total agreement of bishops, clergy and people of a diocese to leave will almost never be the reality. There is no end to the problems that will arise in determining ownership of property and money.

The days may be upon us when the General Convention may be called upon to deny seating, voice or vote to deputations, or to declare a diocese vacant, and determine new structures for the work in those jurisdictions. Certainly it seems more and more important to find ways to hold bishops accountable to their oaths and dioceses to the requirement of “unqualified accession to the Constitution and Canons of this Church.”

10 comments:

Marshall said...

Take this, too, in light of the recent decision that the actions of the Diocesan Convention of San Joaquin to deny complete accession did not constitute grounds for a presentment against the Bishop. Now, I have drawn a distinction, as you did, between a diocesan statement and actual practice; and San Joaquin and the Bishop Ordinary did attend General Convention in Columbus.

Now the further changes to Diocesan Canons that are reportedly planned do go a step farther - not a limited but an absolute rejection of General Convention. At that point perhaps members of the moderate remnant in San Joaquin will offer a presentment, a petition that would perhaps receive a different response.

Bill Carroll said...

It's almost as if, disappointed by the dismissal of the charges against their bishop, they wanted to poke a stick in the eye of the Episcopal Church and see if they could force us to discipline them. Maybe indeed, this is what they want. Any entity that breaks ranks with General Convention is ipso facto no longer the Episcopal Diocese of San Joaquin, etc. I do think it is perfectly sensible not to go after a diocese the first time it repudiates its unqualified accession. When it starts to act on the repudiation, it has ceased to be the diocese and has become a collection of individuals who were once the diocese but are no longer such.

This is exactly the reason why serious questions need to be raised about the South Carolina consent.

David Wilson+ said...

What does it mean to "break ranks" from General Convention.

Does electing a full slate of deputies and only registering and sending one clergy and one lay and only sitting for one session constitute fullfilling the canons?

Mark Harris said...

David...beats the hell out of me! Canons say there are to be four but says that one in each order is enough to count the deputation present. But if they were not there for the rest of the sessions they would be absent and so noted. When would there be a breaking point? Don't know.


Good question! Maybe someone else can answer.

If a diocese sent its bishop and one each clergy and lay the diocese would be present and accounted for. If not they would be absent, but it gave me an idea (not origional I know.)

It might actually be refreshing if all dioceses did that -sent one bishop, one clergy and one layperson (still being present for all sessions), but then who would do the committee work.. o yes, I see, we'd have to have fewer committess and therefore fewer pieces of legislation, and perhaps even fewer visitors taking time away from debate, and ....

It's a dream, yes?

But maybe a good one.

Anonymous said...

The question of accession to the property of a "seceding diocese" (meaning most but not all the clergy and laity declare their separation from the Church) is best answered as did the appellate courts of Florida in 1977-78 involving PCUS and PCUSA and local church property in Madison, Florida. There was no express trust provision, even so the "national" church won the property on general trust principles of civil law: for in a hierarchical church it is in the hierarchy that the local congregation is identified. You 25 are that local congregation, not you 25,000, and we shall send a priest; the property remains in The Episcopal Church.

Anonymous said...

Question: Did the Episcopal Church split in the manner that denominations such as the Baptists (American and Southern Baptist Conventions) and others have since the Civil War?

Answer: The Rev. Canon Francis C. Zanger, D.Min, priest associate and pastoral counselor of the Church of the Holy Communion in Charleston, S.C., responds:

I am always a bit bemused to hear that “Protestant Episcopal Church (PECUSA) was the only church that did not experience a formal schism on the issue of slavery during the Civil War.” First, the “only” would surprise the Society of Friends (Quakers), the Unitarians and even the Lutherans, among others. Second, the rest of the statement would surprise Episcopalians living in the South.

On July 3, 1861, Episcopal delegates from all the dioceses in states that had seceded from the United States met in Montgomery, Ala., where they voted unanimously to form a new national church. In October of that year, they met in convention in Columbia, S.C., and (under the guidance of Louisiana’s Bishop Polk) formally established the “Protestant Episcopal Church in the Confederate States.”

Just as the U.S. did not acknowledge that the southern states had the right to secede and form their own nation, so too did PECUSA’s General Conventions of 1862 and 1865 refuse to acknowledge the southern dioceses’ formation of a new church. Instead, they continued to carry them on the rolls at Convention, listed as “absent.”

If TEC (once known as PECUSA) is truly interested in the "ministry of reconciliation" perhaps this lesson from the past - which was a conflict of the deepest proportions - might serve as a wise lesson.

J.J. said...

Anonymous,
Actually, our situation in the run up to the Civil War was quite different from the situation in the other denominations. We did not split over the issue of slavery like most of them did. In fact, we, for the most part, avoided the issue for the sake of unity. As a small Church, Northerners and Southerners knew each other better than in the other denominations and this made it harder for them to split. It was only after the South constituted its own government that Southern Episcopalians formed their own Church. This had everything to do with Anglican polity -that in a new country, in general, you have a new Church- and little to do with slavery. There was really little animosity in the Episcopal Church over the issue of slavery. The northern part of the Church did not accept that the Southern part of the Church was a new Church because during the war it was still an open question in the North as to what would happen. We can see that there was really no ill will in all of this because at the end of the war the Episcopal Church immediately reunified. It took other denominations many generations to reconcile.

Bill Fulton said...

Canon Zanger's account of General COnvention during the Civil War is refreshing. If General Convention had the patience to allow the southern dioceses to be "absent" for four years or more, why couldn't we do the same now with the Diocese of San Joaquin and others?

Let them go their way in peace, and simply mark their "absence" at General Convention. We don't lose anything, but this way we leave the door open for reconciliation sometime in the future.

Jim said...

Bill,

The cases are not parrallel. The church in the South did not leave hurling anethamas, claiming to be the only real Christians or attempting to simply take other's property. It simply organized to recognize that it was in a new, political division. When that division ceased, it simply said, "we're back!" And the church as a whole said, "so you are."

The current attempted mugging is another, violent, disreputable matter entire.

FWIW
jimB

Bruce Culver said...

What makes this interesting is that in just two weeks, the Diocese of Dallas will hold its 2006 General Convention. At this convention are a number of resolutions affecting the Constitution and Canons of the Diocese. If all these resolutions are passed, they will in effect be articles of secession. Among other things, they eliminate all references to the National Church, Constitution, Canons, and any other ties to the national church, from all diocesan work and publications. One of them will delete the diocesan constitutional article providing for the election of deputies to the TEC General Convention. The interesting thing here is that Bishop James M. Stanton has declared publicly that he will not leave the Episcopal Church. One supposes, if the diocesan delegates do pass these resolutions, that he may be put in the position of having to censure or abandon the very folks he helped lead to this present state.