11/20/2010

Does acceding to the Constitution imply acceding to the Canons?

Lawyer  A. S. Haley, aka the Anglican Curmudgeon,  also lawyer for the Anglican Diocese of San Joaquin (consisting of the deposed bishop of San Joaquin, a number of deposed clergy of The Episcopal Church, and a large number of lay persons), has written an analysis of the ruling of the California Appeals Court issued earlier this week. It can be read in its entirety HERE.  His read is very different from that provided by the lawyers for the Episcopal Diocese of San Joaquin, whose comments can be read HERE.  Apparently everyone calls them as they see them, but they sure saw different things.

Of interest is this comment by Haley:

"When it was admitted as a Diocese in 1961, San Joaquin acceded only to ECUSA's Constitution, and said nothing about acceding to its canons; its diocesan Constitution still reads the same way today, under Bishop Lamb." 

The question is, does acceding to the Constitution imply acceding to the Canons.  Apparently, A.S. Haley thinks not. 

According to the Constitution (Article V Section 1) General Convention is to be satisfied that the proceedings of a Convocation forming a new diocese, along with documents and other papers concerning the formation of the new diocese, meet the conditions for forming a diocese, and that the Convocation "has acceded to the Constitution and Canons of this Church."  

The Constitution of the Diocese of San Joaquin reads, 
"Article II – Acceding to the Constitution of the Episcopal Church.
 
The Church in the Diocese of San Joaquin accedes to the Constitution of that branch of the Holy Catholic Church known as the Episcopal Church in the United States of America and recognizes the authority of the General Convention of the same."

Haley believes this does not then involve acceding to the Canons. I believe he is wrong on several counts:

(i) Article II includes the assertion that the Diocese of San Joaquin "Recognizes the authority of the General Convention." That authority includes the provision of canons related to the fulfilling of the mandates and intentions of the constitution of the Church.  So if General Convention authorizes (votes for) a canon and intends it to be authoritative for The Episcopal Church, the Diocese of San Joaquin recognizes its authority to do so.

(ii) It would be helpful if the accession language of the diocesan constitution in fact repeated the language of the Constitution of The Episcopal Church, "Constitution an Canons", but it is unnecessary. Had the intention of the Diocese of San Joaquin been otherwise than to meet the requirements of TEC's constitutional requirements, would they have presented the appropriate papers, documents and certified copy of the proceedings of a Convocation? And would they not have stated clearly that they were willing only to accede to the Constitution and not the canons?  The omission of the full language is not a sign of intent not to be bound by the canons.

(iii) The Constitution of The Episcopal Church itself makes reference to canons as an extension of its own intent regarding organization (see Article V. Section 1)  and the Constitution makes reference to canons which extend the intent of the Constitution (see Article IV, on Standing Committees).  Acceding to the Constitution of The Episcopal Church therefore implies acceding to the Canons.

(iv) Quite independent of the matter of acceding to the Constitution, every clergy person promises to "solemnly engage to conform to the Doctrine, Discipline, and Worship of the Episcopal Church."  The insertion of the word "discipline" took place in 1901.  The Annotated Constitution and Canons, Vol 1, opines, "Inasmuch as a violation of the Constitution and Canons of the General Convention or of those of a diocese constitute an offense under Title IV, Canon 1, for which persons in Holy Orders may be liable to presentment and trial, it is appropriate that the engagement of conformity to the discipline of the Church, as well as to is doctrine and worship, be included in the declaration."  Here the reference to Discipline is to the Constitution and Canons.  The "Constitution and Canons" are viewed here as a whole, the Canons being by authority of General Convention the means of augmenting the Constitution for purposes of discipline and governance. 

It seems difficult to contend that the discipline can be split into two parts  such that the first (the Constitution) warrants conformity and the second (the Canons) don't.  

For a variety of reasons, therefore, I believe acceding to the Constitution implies acceding as well to the Canons.  This, of course, is very different from giving up the right to change either.

The reason Haley wants to make this distinction between acceding to the Constitution and to the Canons is so that his client can not be charged with violations of any Canon that the client might not agree with.  The object is to make his client the authority regarding the need to conform to any specific canon. 

My sense is that acceding to the Constitution of the Episcopal Church does indeed imply acceding to the Canons of TEC. Further, the application of the Diocese of San Joaquin does not imply, by its absence of mention of canons, a rejection of the need to conform to the canons of TEC. 

But, what do I know?  I am not a lawyer or the son of a lawyer. But I know when I'm being blind-sided.

What do you think?

48 comments:

  1. I think you should stick to poetry and leave legal analysis alone. Fred Slimp, Seattle

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  2. I believe that you're right and so, FWIW, does the California Appeal Court which stated in its recent ruling that "when the Diocese of San Joaquin was created in 1961, the constitution of the Episcopal Church provided that new dioceses could be admitted into union with the Episcopal Church only if they “acceded” to the constitution and canons (i.e., by-laws) of the Episcopal Church. The original constitution of the diocese provided that the diocese “accedes to the Constitution of that branch of the Holy Catholic Church known as the Protestant Episcopal Church in the United States of America and recognizes the authority of the General Convention of the same.”"

    Maybe some credit is due to poor Mr Hailey, who is playing poker with a really crappy hand, for doing his damndest with what he's been dealt.

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  3. I'm no attorney or child of one, but I think your Point III is a strong one; if the Constitution itself references the Canons then agreeing to follow the Constitution means following the Canons it references.

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  4. Hilary Laurens20/11/10 5:27 PM

    Mark, I do not think accession to the constitution requires accesssion to the canons for several reasons.

    First, if acceding to the Constitution implies acceding to the canons, then why have both? Why not simply have one document? The constitution is the framework for the organization, and the canons give the operating procedures.

    Second, in principle, a diocese could accede to the constitution and choose to implement the constitution in a different way than called for by the canons. Such a decision would greatly complicate life for the diocese and require a number of canons to be created de novo for that specific diocese, but it is possible.

    Third, that they are separate documents is clear from the fact the constitution requires two consecutive votes to amend, while the canons can be amended with only one vote.

    Finally, the nature of union of the dioceses with The Episcopal Church is that of a voluntary organization, sort of like the NCAA. Notre Dame, as a member of the NCAA is nevertheless free to be an independent, that is, not affiliated with a conference, yet it still participates in the "common life of the NCAA." A diocese could be a part of the Episcopal Church, it seems to me, subject to the Constitution, yet organizing itself differently from the Canons

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  5. dr.primrose20/11/10 6:46 PM

    Article II, Section 1 of the U.S. Constitution provides in part as follows:

    "Before he enter on the Execution of his Office, he [the President-elect] shall take the following Oath or Affirmation:

    "'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"

    Note that the President-elect makes no promises concerning the statutes of the United States, only its Constitution.

    I would love to be in a courtroom where Mr. Haley, based on his legal reasoning concerning the San Joaquin case, argued that the President of the United States promised to uphold only the Constitution and, because he made no promise concerning the U.S. statutes, he is free to ignore them. He'd be laughed out of every courtroom in America.

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  6. "Finally, the nature of union of the dioceses with The Episcopal Church is that of a voluntary organization, sort of like the NCAA." Where did you find this one, Hilary Laurens?

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  7. Rabbit, that voluntary association argument seems to be the schismatics latest gamble in their journey of backpedaling to rewrite history. I have seen it a number of times lately in their emissions here and there.

    But as Dr Primrose points out, it is difficult to accede to a Constitution that itself points to a system of canons to carry out the intentions of the Constitution and not at the same time be acceding to the canons themselves.

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  8. "Finally, the nature of union of the dioceses with The Episcopal Church is that of a voluntary organization, sort of like the NCAA." Where did you find this one, Hilary Laurens?

    Try the Episcopal Church's own complaint:

    http://www.episcopaldiocesefortworth.org/holystewardshipfiles/misc%20pdfs/Epis%20Fifth%20Amd%20Petition%20111210%20filemarked.pdf

    "2. Plaintiff The Episcopal Church ... is a ... non-profit unincorporated association ..."

    So the Episcopal Church says it is an association just like the NCAA, in its legal pleadings.

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  9. Thank you Fred, Hilary and Joe. Indeed, TEC is a not-for-profit voluntary association in law. When those wishing TEC to be something else, they go to great lengths. On another thread this amounted to declaring the US Supreme Court as ruling that TEC is 'hierarchical.' When pressed for a clarification, they simply went silent.
    As for accession within the context of such a lregal entity: it is also the case that one can withdraw, legally. One can accede, even 'unqualifiably' to the NCAA and still later decide to join another basketball association. 'Unqualified' in such a context simply means 'without fingers crossed or otherwise encumbered. So yes, SJ has only acceded to the constitution. So now TEC leadership/litigation has a double bind. It is producing canons not in line with the constitution (hence the call for revision of Title IV, apparently being heeded). But also it must face the integrity of dioceses as an integral part of the history and polity of this church. Sam

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  10. I have been following the San Joaquin matter, as well as the split in Pittsburgh and the case of the Good Shepherd Rosemont, Pennsylvania.

    I think that the question of acceding to the constitution and canons or just the constitution is a bit of a red herring. The real question is whether "accedes" means:

    1) that the national church can create a canon that changes the terms of a trust set up in favor of a parish operating within a diocese of the denomination; and

    2) whether the diocese has the right to withdraw from the national church, when joining the national church was never said to be irrevocable.

    I think it's true that a parish cannot unilaterally decide to leave the denomination. But I think Al Haley has a good point that a diocese, as a founding entity of General Convention, only commits to the denomination for the time that it chooses to remain in the denomination.

    In the case of San Joaquin, the diocese chose to leave in 2007. That was that.

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  11. In this context it is worth quoting in full the final paragraph of the Georgia Court of Appeals' July 2010 ruling on the Christ Church, Savannah case:

    "In this case, it is undisputed that the National Episcopal Church is hierarchical in nature, that Christ Church has been a member of the hierarchical organization since 1823 (for over 180 years), that Christ Church, through its own 1918 charter, made itself subject to the hierarchy's discipline and canons, and that Christ Church ratified its adherence to the National Episcopal Church discipline and canons in 1981 when it re-filed its 1918 charter.   Such discipline and canons unquestionably provide that the National Episcopal Church “shall hold all church property,” thereby implying a trust for the benefit of the National Episcopal Church.   This principle became an express trust with the enactment of the Dennis Canon in 1979.   Taking all of these factors into account, this Court is satisfied that a trust over the property exists in favor of the National Episcopal Church and the Diocese of Georgia.   When Christ Church disaffiliated from the National Episcopal Church, the local church property reverted to the control of the Bishop of the Diocese of Georgia for the uses and purposes of the National Episcopal Church.   The trial court's order is hereby affirmed."

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  12. hoofin

    "...a diocese, as a founding entity of General Convention, only commits to the denomination for the time that it chooses to remain in the denomination."

    Since the Constitution does not provide a mechanism for withdrawal, can it not be implied that accession/membership is permanent?

    Further, If the diocese has burdens, rights and responsibilites different from a parish, how can it assert the rights of a parish on its own behalf?

    Again further, "association" standing alone and without additional modifiers, is not determinative. Partnerships are associations with legal status and are legally defined that way. Withdrawal from a partnerhship must be in accordance with the Partnership Agreement (or Constitution depending on the context).

    Lastly, canons or by-laws are generally provided for in the constitution (which usually does not provide for the flexibility requred to actually operate.) No one expects an organization to put all of its operation into a constituion. That, of course is its prerogative, but is actually not feasible.

    I must commend Mr. Hailey for his zealous advocacy on behalf of his client. Indeed, it could be argued he is obligated by the ehtics of the profession to make this argument. Likewise, a judge, following the law, must reject this argument, of only because of the logical consequences for governance.

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  15. "Since the Constitution does not provide a mechanism for withdrawal, can it not be implied that accession/membership is permanent?"

    No. Such an implication would be illegal.

    Association law specifically provides that a member is free to resign from the organization at any time, but can be held liable for the payment of any dues owing.

    Further, under the First Amendment to the U.S. Constitution, courts cannot search religious documents for implied anything, because courts cannot conduct searching inquiries of church documents. The church documents must say what they mean, and mean what they say.

    "Partnerships are associations with legal status and are legally defined that way. Withdrawal from a partnerhship must be in accordance with the Partnership Agreement (or Constitution depending on the context)."

    No. For instance, property of the partnership is not property of the partners, and no partner has any interest in partnership property.

    By contrast, the association gains its interest (standing) only thru its members, and once the member leaves, the association loses its interest (standing).

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  16. Illegal in Civil Law, maybe, Joe, but not pertinent to religious denominations, which are protected by the first amendment. Be interested to know if you believe that the "principle" you are advocating also applies to the Roman Catholic Church.

    The Georgia decision, linked above - which makes interesting reading (easier reading format here) - quotes with approval the following ruling of the California Supreme Court:

    "It is a bit late to argue that [the Dennis Canon] was not effectively adopted, a quarter of a century later, and, in light of the consistent conclusions of the out-of-state cases that that canon is, indeed, part of the Episcopal Church's governing documents, the argument seems dubious at best.   But, in any event, this is one of those questions regarding ‘religious doctrine or polity’ ․ on which we must defer to the greater church's resolution.   Over the years, the Episcopal Church has consistently taken the position that [the Dennis Canon] was effectively adopted."

    The Georgia court continues, relative to the Savannah case, "If Christ Church had an objection to the validity of the Dennis Canon, the remedy is not with the courts, but rather with the General Convention of the National Episcopal Church."

    What's to add?

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  17. OK, I am a lawyer, and a First Amendment lawyer at that, and I think that those making the "voluntary association" claim are, forgive me, abjectly failing to deal with the facts on the ground. In addition to the cases cited by the esteemed Bunny, the New York State Court of Appeals in Episcopal Dio. of Rochester v. Harnish (2008), ratified that the Dennis Canon complied with the intentionally minimal procedure required to create an enforceable trust under the Supreme Court's First Amendment decision in Jones v. Wolf. Thus, the property is held in trust, and the diocese is not free to leave with the property at its sole whim.

    Analysis, with links to the cases, here

    Further analysis here.

    Oh, and courts look at parol evidence (written or oral evidence outside of the partnership agreement) all the time when the text of the agreement alone is ambiguous. It's called, aptly enough, the parol evidence rule. (that's the California version summarized, but the concept applies throughout the U.S, with some differences as to strictness and methodology).

    I hope this is helpful.

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  18. Knowledgeable professional opinion much appreciated, Anglocat.

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  20. Its only knowledgeable and professional because you agree with it, bunny.

    You must admit, however, that Allan Haley DID argue on behalf on Schofield, and HIS argument DID result in a REVERSAL of the court opinion below.

    So right now, Anglocat is merely conjecture, while Anglican Curmudgeon has a WIN under his belt.

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  21. Oh and bunny, I am in Texas. We could care less what the California Supreme Court has ruled. We tend to follow the South Carolina courts more.

    As you will note, the Episcopal Church has already lost here, had a writ of mandamus issued against them, had all of their pleadings struck, and their lawyers have been barred from appearing in the case as lawyers for the diocese.

    So they are on a very short leash here.

    Just so you're aware, a writ of mandamus is VERY difficult to get. Only about 2% of the applications are granted.

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  22. Joe:

    Come, come: Lapin might appreciate Anglocat's opinion because he agrees with it, but, like brother Hailey's opinion, it is knowledgeable and professional because it the Cat's credentials and practice, despite the fact that you disagree with it.

    I'm not a lawyer, but I am a student of history. I expect that one or more of these cases will be submitted to the Supreme Court of the United States. I believe that partly because, despite your interpretation of the recent decision in the San Joaquin case, to this point state supreme court decisions have ultimately gone to the Episcopal Church, relying on the US Supreme Court decision in Jones v. Wolf (and I base that on my own reading of the decisions that have come down). Since part of the purpose of having a Supreme Court of the United States is to address questions that seem to result in different decisions in different states and different Federal Circuits, and the various parties seem not only well resource but certainly convicted, I'm sure one or more cases will be submitted. (Yes, I know that lower Federal courts will receive a case first; but I expect that the whole process will be seen through.)

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  23. Yes Yes Marshall...

    I have been an Episcopalian since the 60's. I was confirmed in the 70's by A. Donald Davies, the bishop of Dallas.

    I'm so tired of the whole gay thing in the church. Just look where it has gotten us: broken communion with 22 of 38 provinces; people feeling as if they must flee the church, and yet being sued by people who have no claim on the buildings for those buildings. The church has degenerated into lawlessness, and we are being laughed at globally.

    Why? Because some gay man felt that he wanted to be a leader in the church, despite the fact that the heads of the other anglican jurisdictions told us that it would "tear the fabric" of the communion.

    Frank Griswold signed that letter, and then proceeded to preside at the consecration.

    As Allan Haley said in recent post,

    "The Senator from Wisconsin cannot frighten me by exclaiming, “My country, right or wrong.” In one sense I say so too. My country; and my country is the great American Republic. My country, right or wrong; if right, to be kept right; and if wrong, to be set right.

    "If right, to be kept right; and if wrong, to be set right" -- that is the proper course for the Episcopal Church to maintain instead of the disastrous one it is currently pursuing."

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  24. You may be misinterpreting the meaning of "Right" in this context, Joe. Incidentally, "if right, to keep it right" has a longer history than Mr Ha[i]ley. Attributed by some to Daniel Webster.

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  25. Carl Schurz, actually. A prominent German and later American liberal.

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  26. I'm so tired of the whole gay thing in the church.

    AT LAST, the FIGLEAF of concern over "the Constitution and Canons" is dispensed with!

    *I* am not a "gay thing*. I am a *member* of the Body of Christ, the Church.

    If you don't like it, take it up w/ my Creator, God-in-Christ. Posturing all "shocked, shocked" about the C&C, AS IF they are really at issue, is fooling precisely NOBODY.

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  27. "*I* am not a "gay thing*"

    You are correct JCF. And I respect you as a member of the church, and would have no problem sitting in a pew with you, nor taking communion with you. In fact, my brother is a priest in the Diocese of Dallas, and you would be welcome in his church also.

    Mind you, I would be praying for GOD to remove your fleshly desires.

    But when you want to tell me that GOD is telling me that homosexual relations are an example to be looked up to for holy leadership, that is when I will tell you that you are incorrect, and point you toward Holy Scripture so that you may hear God's word for you.

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  28. Again further, "association" standing alone and without additional modifiers, is not determinative. Partnerships are associations with legal status and are legally defined that way. Withdrawal from a partnerhship must be in accordance with the Partnership Agreement (or Constitution depending on the context).

    So, if the partnership agreement has no provision for terminating the partnership, the partners are stuck together?

    With this issue of dioceses' withdrawing from the EC, we're in uncharted territory. The EC's constitution and canons are silent. There is no "supreme court" in the EC to rule on this issue. There is no case law in the secular courts on the precise issue of dioceses' (as opposed to parishes') leaving the EC. Trying to discern "legislative intent" is complicated by the fact that we're talking, at least in part, about the intent of a group of 18th Century men that would have been scandalized by candles on the altar, let alone some of the more recent developments.

    I could see the courts going either way on this issue of whether a diocese can withdraw. And since the decision will be based primarily on state law, it's very possible that in different states you'll have different results.

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  29. I second JCF's comment, and I pray to Our Lord that the scales fall from Joe's eyes.

    The "gay thing," and unexamined prejudices based in science as dubious and outdated as Ptolemy's crystal spheres, are the driving force behind all of this struggle. Those passions are conveniently concealed underneath the arcana of legal priest-craft.

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  30. Paul, I recognize your point that the Constitution and Canons of the Episcopal Church are silent on withdrawal. That pushes to a thought new to me (although someone else might have come up with it before me). If I join an organization, once I have joined I have accepted the rules of the organization. By the same token, if I choose to withdraw from the organization, I must withdraw according to the rules of the organization for the withdrawal to be recognized.

    Now, we don't have directions for withdrawal in the Constitution, but we do have directions for joining and accession. Therefore, wouldn't procedures for withdrawing involve undoing the steps of joining? In this case, a diocese cannot be formed without the consent of the General Convention. A diocese cannot "bud off" a new diocese without the consent of General Convention. Two adjoining dioceses cannot change their boundaries without consent of General Convention. Therefore, it seems logical to me that even if we were to imagine some procedure for withdrawal of a diocese, wouldn't that also require consent of General Convention? If we were to imagine some procedure for a diocese to be acceded to another province of the Communion, wouldn't that require consent of General Convention? (And, actually, we might see where that has happened, when the dioceses in the Philippines formed their own church, or when Liberia joined the Church in West Africa.)

    Now, I'm not suggesting that there is such a procedure (even with the precedent of overseas dioceses). However, it seems logical to me. After all, I could certainly leave my primary professional organization; but having left and stopped paying dues, and having stopped meeting the continuing education requirements, I couldn't claim that I was still board certified.

    I can also imagine (though I could be wrong) that such a possible procedure would be unacceptable to those determined to leave. First, the procedure would be slow - at least three years - and would require making a case precisely to a body, the General Convention, that the those departing wish most to repudiate. However, where there are so many procedures affecting the activities of dioceses, any procedure proposed for withdrawal would seem to require parameters consistent with the other procedures affecting dioceses.

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  31. Responding to Point of Order

    Since the Constitution does not provide a mechanism for withdrawal, can it not be implied that accession/membership is permanent?

    I think of a group of people is free to join an association, they are also free to leave it. It's scary to think you can't leave a group that you join. An earlier poster mentioned free association.

    Further, If the diocese has burdens, rights and responsibilites different from a parish, how can it assert the rights of a parish on its own behalf?

    I think a diocese is a collection parishes, and is either in an unincorporated association form, or itself a corporation. (In California, this is a corporation sole?)

    What happens is that the parishes come together or join the diocese, and then the diocese accedes to the TEC?PECUSA constitution.

    Again further, "association" standing alone and without additional modifiers, is not determinative. Partnerships are associations with legal status and are legally defined that way. Withdrawal from a partnerhship must be in accordance with the Partnership Agreement (or Constitution depending on the context).

    In the case of a partnership, people are coming together for economic benefit (to make a profit). So, of course, a withdrawal is probably governed by partnership agreement. But it isn't clear why people should expect the same in a nonprofit arrangement. I think partnerships can also be formed and dissolved without the requirement of an express withdrawal provision to the agreement.

    Lastly, canons or by-laws are generally provided for in the constitution (which usually does not provide for the flexibility requred to actually operate.) No one expects an organization to put all of its operation into a constituion. That, of course is its prerogative, but is actually not feasible.

    Does this go to the point about constitution versus constitution and canons? I happen to agree that canons probably comes within constitution. The real issue, though, seems to be the Dennis Canon, which purports to be a beneficiary creating beneficial interests in trusts--which a beneficiary obviously cannot do. (The settlor creates the beneficial interest.)

    TEC, as beneficiary, confusing trust terms is sometimes itself confused with something called hierarchical polity, which is the doctrine that courts should not determine the questions of religious doctrine in a case IF the question has already been decided within a church hierarchy. (It does not require a church to determine all matters of dispute among denomination members, simply that it says the court can't make up religious practices as it's hearing a case.)

    Hierarchical polity and the Dennis Canon are two different things. This is what you're going toward, right?

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  32. Paul Powers,

    Lets agree not to conflate associations with organizations.

    If a Partnership Agreement is silent on withdrawal (highlyl unlikely in practice), the entire partnership MUST disolve. But that's so much messier than thinking about it in advance.

    Perhaps a better analogy is divorce. There is no explicit ecsape mechanism in a marriage, but they law provides a way to divide assets.

    The partnership is free to re-form without the "withdrawing" partner, but a Partnership Agreement completely silent on the rights of the partners who stay or leave stikes me as incomplete.

    hoofin,

    You have given me something new to think about. Thanks.

    The Denis Canon is something that may be neither fish nor fowl as it relates to this conversation. However, carving out just one canon starts the parade of horribles.

    But, can holders of a trust (trustees) agree to bind a trust in a manner that is inconsistent with the trust instrument? I think not, but I could be barking the wrong tree.

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  33. If you read the US Supreme Court decision in regard to Jones v Wolf two things are apparent.

    The first that as far as the USSC is concerned in 1979, there are but two forms of church government; hierarchical or connection and congregational. Since TEC is not congregational by any stretch of the imagination, then as far as the USSC is/would be concerned, it is hierarchical or connectional. It would seem that that conversation is closed.

    The second has to do with the eventual advent of the Denis Canon. To quote Jones v Wolf;
    "At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form."

    What the court said was that as long as the express trust in favor of the denominational church was enacted in a legally recognizable form in the general church's constituting documents prior to the property dispute, then the civil courts would be bound by it. Thus the Denis Canon, adopted by the General Convention as canon law long before the present disputes and explicitly stating that all property is held in trust for the general church.

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  34. Dahveed--to speak of categories (such as hierachical and congregational) is not to define TEC but to raise the question of TEC (and the adequacies of the categories themselves.)
    You speak of a closed conversation because you would wish that. My wish is that you would read the law in a closer way and not presume to speak of matters that you are not competent to pronounce on. Obviously, if the categories were so obvious we would not have Judge Chupp in Ft Worth putting TEC on the defensive. Rather' he would simply say: the US Supreme Court calls TEC 'hierarchical.' He does not do that because he questions whether hierarchy goes beyond the diocese and bishop. He questions whether 'TEC' has a 'rule book' that trumps the one he sees in Ft Worth.
    He does not simply cite USSC rulings in the manner you imply.
    Rightly so.
    Sam

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  35. Marshall: I see your point about the creation of a diocese requiring consent by General Convention. And if that newly-created diocese wishes to be admitted into union with General Convention, it must accede to the EC's constitution and canons. However, once created, does the diocese owe its continued existence to the EC? Can General Convention, for example, dissolve a diocese without its consent? Can it force it to merge with another diocese without both diocese's consent? If a diocese amends its constitution to delete its accession clause, does that mean that the amendment is void, or does it mean that the diocese can't be in the EC anymore? These are some of the questions that the courts in California, Texas, Pennsylvania and Illinois may have to address.

    Point of Order: You were the one who brought up partnerships. But I agree that a partnership agreement with no provision for terminating the partnership is incomplete.

    The Episcopal Church isn't a partnership, as you point out. It is an unincorporated association composed of several dioceses, most (if not all) of which are themselves unincorporated associations. When the governing documents of an unincorporated association are silent on an issue before the court, I believe the court would have to apply state law to determine the rights of the parties. And since we're talking about four different states, it's certainly possible that the end result will differ.

    David: Leaving aside the fact that the Dennis Canon deals with parochial property, not diocesan property, the portion of the Jones opinion that you cite is what we call "obiter dicta," a passing comment that wasn't essential to the Court's decision. Trusts are a matter of state law, and the highest judicial authority on state law matters is the state's supreme court. It would be beyond the competence of the U.S. Supreme Court to modify a state's trust laws. In some states an amendment to the denomination's constitution or canons may be enough. In others it may not. Again, it's up to the courts. We can argue about how the courts should rule, but until they do, the issue remains unsettled.

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  36. Mind you, I would be praying for GOD to remove your fleshly desires.

    Mind ME??? No, no, no: it's not *me* you have problems with.

    As I indicated, you have a problem with God-in-Christ, who created me WITH my same-sex "fleshly desires" (the same God who ordered me---all of us w/ fleshly desires---towards loving, monogamous union, under Christ).

    Take it up w/ God, Joe. As the old spiritual says, you may find "yo' arms to short to box wit' God" . . . but who knows? Maybe you can beat God into your homophobic INTERPRETATION of Scripture. [Lawd knows your ilk have tried beating my LGBT kin towards your way of thinking!]

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  37. Your words simply dont hold water. If GOD created you as a homosexual, and put in you the fleshly desire to have sex with other men, then why did he strike down Sodom and Gomorrah?

    Genesis 19:4-5

    "Where are the men who came with you tonight? Bring them out to us so that we may know them."

    As you will note, the words "know them" mean have sex with them.

    Genesis 19:8

    In response, Lot offers the men two virgin women, who were his daughters, and the men refuse.

    Genesis 19:12

    Subsequently, Sodom and Gomorrah were destroyed.

    How do you explain this paradox?

    You say that GOD created you homosexual, and yet the story of Sodom and Gomorrah establishes that when men had sex with men, God destroyed them with fire and brimstone.

    What GOD's word says and what you say are two different things.

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  38. Joe, perhaps you should go to seminary and then your grade 3 analysis of the passage in question would not be so pathetic. As well as perhaps you would pick up the fact that you ignore, hopefully from ignorance, the numerous passages scatted throughout the scriptures that specifically define why the twin cities of the plain were destroyed. Not one of them mentions that the cause was homosexuality! If that were the reason, I think that at least one or two of the other passages would confirm that instead of giving completely unrelated causes.

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  39. "the numerous passages scatted throughout the scriptures that specifically define why the twin cities of the plain were destroyed. Not one of them mentions that the cause was homosexuality! If that were the reason, I think that at least one or two of the other passages would confirm that instead of giving completely unrelated causes."

    Hmmm....

    Jude 1:7

    "[J]ust as Sodom and Gomorrah and the surrounding cities, which likewise indulged in sexual immorality and pursued unnatural desire, serve as an example by undergoing a punishment of eternal fire."

    Wanna try that again?

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  40. The Jude passage says nothing about homosexuality, neither in the English translation or the original. The first is fornication, which could be with anyone to whom someone was not married, but referred to heterosexual sex.The second is strange or foreign, which throughout the OT was used to refer to strangers or foreigners passing through, angels or animals.

    But with your predetermined understanding of the story, you will always see it based on that understanding, strange flesh has to be same sex flesh!

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  41. Jude is new testament David, not old.

    Try again!

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  42. Joe, I am aware that Jude is in the New Testament.

    The reference in Jude that you have pointed us toward is a reference regarding an Old Testament story, and a supposedly OT reason that the cities were destroyed.

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  43. The Greek in the original means "other flesh", i.e. homosexual.

    My brother, who is a priest, has confirmed this.

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  44. My brother, who is a priest, has confirmed this.

    Whoa, that pretty much settles it then, because your brother's Greek is obviously better than my own, because he likely has a 3 year spoon-fed MDiv and I only have a 4 year academic ThM. And other flesh certainly translates to a word that did not exist 200 years ago.

    Thanks Joe, It has been a fun circular discussion.

    •••
    Off Topic
    I am wondering where we managed to pick up a Sam and a Joe along the way?

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  45. One word for you David.

    Whatever.

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  46. Is this the same David who opined that the US Supreme Court declared TEC hierarchical? Yes, quite a learned expert, he. I see he had to back away from that nonsense, inside the echo chamber of progressive amens. And btw, the entire history of interpretation has read the proscriptions re: homosexual conduct as self-evident, from the plain sense of scripture. Romans 1 simply deferred to this OT logic. The church followed. Also, it was assisted by the greco-roman literature which likewise found the behaviour wrong and to be advised against.
    Sam

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  47. Honestly Sam, I have looked for the passages concerning the USSC, but because English is not my first language, and TEC has not been my church since 1995, I have had difficulty finding much of anything about it on the internet. And you were correct, I am not a lawyer, which makes it more difficult to even know where to look.

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  48. Dear Hermano--my advice is to stop looking because you will not find anything -- because the USSC has NOT ruled that TEC is hierarchical. That is a fantasy, and you are not alone in indulging it, even as the mistake of attributing it to the USSC appears to be your own. I'd say that Texas will probably rule as South Carolina. Hard to say about SJ. We also await the tweaking of Title IV as even the TEC leadership is apparently realising it is unconstitutional as it stands, granting the kind of authority to the PB that exists in (some) hierarchical church bodies. This is foreign to TEC's diocesan association polity. Sam

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OK... Comments, gripes, etc welcomed, but with comment moderation but with some cautions and one rule:
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