9/10/2008

So what makes Mark McCall a Stakeholder? And why should we consider him right?

What makes the Episcopal Church Hierarchical?

This last week there has been considerable insistence from the realignment crowd that readers pay attention to a paper titled, Is the Episcopal Church Hierarchical?” by Mark McCall. Stand Firm, Titus One Nine and the Anglican Communion Institute, which first published this paper do not identify the writer except to say he is a lawyer. We are given no idea as to why or for whom the paper was written and no indication as to where he practices, his credentials, etc.

So my first (and last) question is, who is Mark McCall? Beats me.

Now to the paper.


The paper itself, to the extent that it is correct, is good news and bad news to everyone involved in the current Episcopal Church / Anglican Communion struggles. Mr. McCall goes to great lengths to show that the Episcopal Church is not a hierarchical church in a legal sense.


I am not a lawyer and on that level am not in a position to judge the adequacy of his argument. But as a student and member of the Episcopal Church and a believing Christian, I am more than willing to accept his conclusion that unlike many Anglican Churches we are not to the same extent hierarchical. On the other hand, tell that to my bishop, who seems to think, as I do, that there is a moral and canonical value placed on obedience to his godly counsel and occasions when, godly or not, his role takes precedence, his place is first and he has power and authority. And, I am only an egg.


The diocese as an entity may be as the paper argues from a legal standpoint only in voluntary relation to the Episcopal Church and other dioceses. But in the real world of vows taken, communities joined, and faith lived out, the link between the bishop and her or his clergy, the parishes, and the Doctrine, Discipline and Worship of the Episcopal Church is both hierarchical and binding. So while there may be no absolute sense of hierarchy in the legal sense, there are canonically binding rules within the Church to which all diocesan conventions are bound, unless and until they change those rules in General Convention.

The fact that dioceses exist in convention prior to union with the General Convention is a historical fact and assumed in much of the canons, but in union with the General Convention the diocese agrees to accede to the Constitution and Canons of the Episcopal Church.

What happens if the diocese in convention were to decide to leave the Episcopal Church? Well, the easiest way would be for that to be accompanied by mutual agreement between General Convention and the diocese in question. This has happened in the recent past when the Diocese of Puerto Rico requested permission to become detached from the Episcopal Church. At a later point the Diocese of Puerto Rico rejoined the Episcopal Church. One wonders what might have happened if the Diocese of San Joaquin had come to General Convention with the evidence that they wished to withdraw from the union and join another Province. We will never know because the diocese did no such thing, rather it unilaterally proceeded as if it were not bound to bring the matter to the whole.

On some level the paper is written with a kind of ecclesial distance. The writer seems not to understand the practice of ministry and the extent to which, legal or not, there is indeed a hierarchy that works its way back into the viscera of buildings, grounds, properties and responsibilities. The missionary, stewardship and legal responsibilities of bishops and of the Episcopal Church by way of General Convention, the Executive Council and the Board of the Domestic and Foreign Missionary Society preclude the easy use of the narrow legal definitions produced by Mr. McCall.


Mr. McCall makes the following statement in his paper:


“To summarize: (1) there is no provision in the constitution making General Convention the supreme or highest authority in the church; (2) there is no provision requiring that diocesan canons be consistent with the general canons; and (3) there is language indicating that the bishop and standing committee are “the” authority in the diocese. “

Mr. McCall seems to believe that the actual Constitution doesn’t count. Regarding item 2 above, I fail to see why Article V of the Constitution does not in fact require consistency with the general canons, or at the very least that they give way to the general canons.

Article V.1 reads:


“A new Diocese may be formed, with the consent of the General Convention and under such conditions as the General Convention shall prescribe by General Canon or Canons, (1) by the division of an existing Diocese; (2) by the junction of two or more Dioceses or of parts of two or more Dioceses; or (3) by the erection into a Diocese of an unorganized area evangelized as provided in Article VI. The proceedings shall originate in a Convocation of the Clergy and Laity of the unorganized area called by the Bishop for that purpose; o r, with the approval of the Bishop, in the Convention of the Diocese to be divided; or (when it is proposed to form a new Diocese by the junction of two or more existing Dioceses or of parts of two or mo re Dioceses) by mutual agreement of the Conventions of the Dioceses concerned, with the approval of the Bishop of each Diocese. In case the Episcopate of a Diocese be vacant, no proceedings toward its division shall be taken until the vacancy is filled. After consent of the General Convention, when a certified copy of the duly adopted Constitution of the new Diocese, including an unqualified accession to the Constitution and Canons of this Church, shall have been filed with the Secretary of the General Convention and approved by the Executive Council of this Church, such new Diocese shall thereupon be in union with the General Convention.”

Mr. McCall argues that the diocese exists before it becomes part of the union with General Convention, but Article V.1 clearly notes that “A new Diocese may be formed with the consent of the General Convention…” and “The proceedings shall originate in a Convocation of the Clergy and Laity...” The Diocese becomes an entity in an Episcopal synodical context only on submission of a constitution and canons approved by the convocation acceptable to the General Convention. The constitution and canons so submitted must give unqualified accession to the Constitution and Canons of the Episcopal Church. Mr. McCall is wrong.


Mr. McCall states, “there is no provision in the constitution making General Convention the supreme or highest authority in the church.” In solid lawyerly fashion he states it as a fact. Good for him. Those in debate are given to stating what may or may not be finally determined to be true as true. But saying it is true doesn’t make it so.

His arguments have to do with a reading of the Constitution of the Episcopal Church, the fact that the forming bodies of the Episcopal Church were state conventions (later called diocesan conventions) and that the first dioceses, like the first states, were present before the union called the General Convention and never gave authority to a supra-diocesan entity. He argues that to the extent that they were part of the union the General Convention by way of diocesan approval, they would settle the argument as to whether we were dealing with rules for the governance of a voluntary organization, i.e. the Episcopal Church or a hierarchical church. Pre-existing dioceses joining in voluntary association is quite different, he argues, from a higher authority forming such dioceses.


One problem is that following the initial formation of General Convention new dioceses were formed in something like the procedures outlined in the canon and they were required to give accession. The author makes much of the legal definition of accession and claims the word is misapplied to the requirements made of dioceses. But the canon seems clear and practice supports it: new dioceses in order to be formed as such must present a copy of their Constitution and Canons which must be found acceptable to General Convention and must include the notion that the national canons and constitution are to be understood as having greater authority. At some point, when additional canons were introduced concerning the form of the declaration of conformity in ordinations, or the canon on property, were introduced, the initial dioceses now part of the union were also brought into the present, since all their leadership had under oath sworn to uphold the Doctrine, Discipline and Worship of the Episcopal Church.


The question as to whether or not a diocese can unilaterally withdraw from the union of the General Convention is fairly simple: There is no provision for unilateral withdrawal from the union. There is no reason why a canonical or Constitutional change might not be enacted for that purpose, but there is no provision now. There is provision and precedent for dioceses withdrawing by mutual agreement. Why such provisions were not made use of in the Diocese of San Joaquin is a matter of opinion.


So who is Mr. McCall. What is his stake in all this?


I have no idea. Search engines were of little help, since the only link between Mr. McCall and the Episcopal Church are the ones that grew from the publication of this paper.


Again, where is the stakeholder link?


And, while we are at it, what leads us to think he is an authority on canon law, which is not simply a variation on civil law?


And where are his references to the Book of Common Prayer and the canons (rather than the Constitution)?




6 comments:

  1. As recently as the case involving the diocese of Washington and Mr. Moyer, the Federal courts have held that TEC is a hierarchical church for purposes of US law. In the cases now in progress in California, the most recent holding was the same.

    One can always find a lawyer to argue the loosing side of a case, after all, arguing viewpoints is what lawyers do. There is however, something called 'settled law." It is fairly clear that the status of TEC is one such item.

    I suspect we will have to litigate the point several more times as the Chapman Memo strategy fails. But, that is part of the process. While I am not a lawyer (alas) I rather think I know where this paper is headed.

    FWIW
    jimB

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  2. dr.primrose11/9/08 3:21 PM

    For what it's worth, the footnote on the first page of the article identifies him as:

    "A member of the New York bar and former partner of an international law firm based in New York, resident in the firm’s New York, Washington and Paris offices."

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  3. Mr. McCall’s legal career was spent practicing law at the firm of Sullivan & Cromwell, a large, international law firm based in New York, where he was a partner. Sullivan & Cromwell is widely regarded as one of the preeminent law firms in the world. He was resident in the firm’s New York, Washington and Paris offices and also worked extensively in London and The Hague, specializing in international litigation. He represented numerous clients over many years before the international tribunal (the Iran-United States Claims Tribunal) in The Hague that adjudicated claims arising out of the Iranian revolution and the seizing of the American hostages. He also served for three years as the administrator of an international tribunal in The Hague adjudicating a claim between a Persian Gulf state and a consortium of European companies. For many years, he represented British and European clients in United States and trans-national litigation and also advised private clients and the British government in connection with treaties and other international agreements. He took an early retirement from his firm, and is no longer affiliated with Sullivan & Cromwell.

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  4. John S Morgan11/9/08 8:40 PM

    "Based on our review, we have concluded that the structure and polity of the Province of the Southern Cone would afford our diocese greater self-determination than we currently have under the General Convention of The Episcopal Church. This autonomy would be evident most specifically in the areas of property ownership, liturgy, holy orders, and missionary focus."

    In this quote from the message of the bishop and standing committee in Fort Worth, there seems to be an inadvertent admission that the property really belongs to the Episcopal Church.

    If the Province of the Southern Cone would afford the Fort Worth diocese greater self-determination than it currently has, an autonomy evident most specifically in the areas of property ownership, then the bishop and standing committee is conceding that the property is owned by The Episcopal Church.

    After all, the only way to achieve an autonomy over property is if the owners grant one that right. If the diocese is wanting greater autonomy over property, then they have conceded that full autonomy has not been granted by the owner.

    Apparently the diocesan officials plan to expropriate (to use a polite word) the property.

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  5. There is a Mark Adrian McCall listed in the NYS registry of attorneys, graduate of Yale Law School, admitted to the NY Bar in 1997 but delinquent in his bienneal registration.

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  6. I want to thank the Anglican Communion Institute for their response. The footnote in the paper itself was not very informative. Mr McCall's paper, already a heavy lifter, seems even more weighty given the credentials. The question still remains as to why he wrote the paper. In what sense is he a stakeholder...that is why does he give a particular damn what happens in the Episcopal Church? Surely all this effort is not simply because he had time on his hands.

    I still have the sense that in the narrow sense from which he is working he may be right, and indeed I agree we are not a very hierarchical church. But in an ecclesial context we are bound by vows that implicate us in the Constitution and Canons, as they constitute a large part of the "discipline" of the church. Clergy take an oath, and in becoming part of the union of General Convention so do dioceses.

    It may be that our Constitution reflects in much of its ordering of things something like the Articles of Confederation rather than the Constitution of the United States. But the Constitution has been subject to continued revision and that has reflected the civil system as it too has changed.

    But again, thanks to ACI for the information.

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