Written by: Mr. Mark McCall
Monday, October 19th, 2009
An Address Delivered to
the Convention of
The Episcopal Diocese of Dallas
October 14, 2009
Bishop Stanton has already addressed the subject of TEC’s polity from the perspective of its history and constitution. In just a bit, Dr. Turner will talk about the Anglican covenant, its provisions and background. What I want to do briefly is address both of these topics, but from a different angle: first, to talk about TEC’s polity from the perspective of the civil law and then to look at the Anglican covenant from the perspective of TEC polity. I hope when I am done that this is coherent and I can tie it all together!
First, TEC polity. And to begin, why do we care what the civil law has to say? The answer to that largely lies in the fact that there are now several civil lawsuits around the country in which courts are addressing TEC polity. This is not the way we want it to be, but it is the way it is. And barring some unexpected negotiated settlement of these lawsuits, the secular courts will have profound things to say about TEC polity that will affect us all. So we have to care.
So, proceeding from the perspective of the civil law, I will start by asking what kind of a legal entity is TEC? Indeed, is it any kind of recognizable legal entity at all? On this point, I am happy to say that all sides are in agreement. TEC is what the law has traditionally called a “voluntary association.” Both TEC and its litigation opponents recognize and accept this. This kind of entity is sometimes referred to today as an unincorporated nonprofit association, but voluntary association is the traditional terminology. So, from a civil law perspective, that puts us immediately into the category of association law.
A church does not have to be an association. The Southern Baptist Convention—a church named by the way for its convention; TEC is named of the office of bishop—is a Georgia corporation. To take another example, the missionary society responsible for establishing about half of the Anglican churches in this country prior to the American Revolution, the Society for the Propagation of the Gospel, was an English corporation. And after independence, the largest of the state churches in the former colonies, the one in Virginia, was incorporated in that state by the Virginia legislature. But TEC has always been and remains a voluntary association.
This leads us to the question, “what are the essential legal characteristics of voluntary associations, the things that distinguish them from other forms of organization”? And the answer is, like Pegasus on top of the Mobil Building, “they’re not what they used to be.” Until fairly recently, the law did not recognize a voluntary association as a legal entity distinct from its members. In other words, when the law looked at a voluntary association, it only saw its members; the association itself was simply an aggregate of its members. That rule was changed in the twentieth century in most, but not all states, typically by statute. Texas, like other states, has a statute that recognizes voluntary associations as legal entities and allows them to own property and sue in their own names and enjoy the rights and responsibilities of legal personality. But that was not formerly the case.
The traditional rule is illustrated by two early U. S. Supreme Court cases related to the Episcopal church, both arising in the same small town in Vermont. About fifty miles north of my house is the beautiful town of Pawlet, Vermont. It is exactly what you think Vermont is like, especially if you think it is overrun by Mercedes and BMWs. Vermont is not what it used to be either! Shortly before the American Revolution, King George III donated a royal grant of land establishing the town of Pawlet. One parcel of land was donated to the Church of England for religious purposes and another was donated to the Society for the Propagation of the Gospel. And in the early years of both the Supreme Court and the Episcopal Church two law cases were filed concerning this single land grant by the king. The first, in 1815, was brought by the local Episcopal parish in Pawlet, which claimed it owned the land given to the Church of England. But the Supreme Court said no. By the time the local parish was formed, the Vermont legislature had already passed legislation transferring these two parcels to the town of Pawlet for eventual use as a school. And the Supreme Court ruled that until the formation of a local parish, which was treated as a corporation under the common law, or incorporation of the Episcopal Church by the state or some other means of establishing a legal personality, no group of Episcopalians legally existed to take ownership of the property from the king. These Episcopalians were “merely a voluntary society,” which could not own property.
The other case was brought by the Society for the Propagation of the Gospel and was decided in 1830 with an opinion by the same justice who had authored the earlier Pawlet case. This case had a completely different outcome. Because the Society was an English corporation and was a recognized legal entity, it took ownership of its parcel when the grant was made by the king. So here we find one Vermont town, one land grant, two Supreme Court cases and two different results depending entirely on the legal form of the entity. We see in these cases one of the significant aspects of the choice by the founders of TEC to organize it as a voluntary association.
We also see from this discussion of the traditional understanding of voluntary associations that the concept of membership is crucial. If it is the members not the association itself that are primary in this form of organization, who the members are becomes paramount. And in this respect, associations come in all types. Some have individuals as members. Other associations have corporations or other entities as their members. You are all familiar with trade associations. Their members typically are large corporations that are themselves more important than the association. Another association you have all heard of, the NCAA, the National Collegiate Athletic Association, is an association of colleges and universities. Some associations are in fact associations of associations. For example, there is an association of trade associations called the Federation of International Trade Associations. So, on the important question of determining the membership of an association, one has to look carefully at the structure of the particular association.
Another association you have all heard of is the NAACP, the National Association for the Advancement of Colored People. The NAACP is actually a corporation at the national level, but it acts in states and local communities through voluntary associations. I mention the NAACP because it was the association involved in the most important legal case on associations ever decided. During the 1950s, the NAACP had a prolonged legal battle with the state of Alabama over its right to operate as a voluntary association in that state. This single case went to the United States Supreme Court four times. In the most important of these decisions, the Supreme Court ruled that there is a right to associate that is protected by the First Amendment. Freedom of association is not actually mentioned in the First Amendment, which speaks instead of the freedom of speech, freedom of assembly and freedom of religion. But the Supreme Court ruled that the freedom of association is inherent in those other freedoms because they cannot be realized without the freedom of association.
So there is a constitutional foundation to the law of associations. A key implication of this constitutional foundation is that the members can agree on whatever governing rules they want. This has always been the law of voluntary associations, but now we see that this has a constitutional guarantee. And it is on precisely this point that associations are very different from business corporations. Corporations are entirely creatures of the state. In a fundamental sense, people do not create corporations, the state does when it issues a certificate of incorporation. And corporations are governed by an extensive body of corporation law. Among other things, that law specifies the respective rights and duties of the shareholders and directors and how the corporation is to be run legally—board meetings, shareholder meetings, etc. In general, corporation law says that a corporation is managed by its directors, not its shareholders. This is not because the shareholders choose to have it that way, but rather that this is what the law requires.
These are the fundamental principles of association law. I now want to apply them very quickly to TEC and then conclude by looking at the Anglican covenant.
First, and this is probably the most important legal question—the one on which all others turn: who are the members of the voluntary association that is TEC? We answer this question by looking at TEC’s governing agreement, its constitution. The constitution specifies quite clearly that the entities that join—it has always used a term, “accede,” that comes from international law and was familiar to those in the 1780s who organized TEC—the entities that join the TEC association are dioceses. A parish cannot join General Convention and show up for meetings, nor can an individual. Only dioceses. And it is dioceses that are entitled to representation at General Convention. That is stated in the constitution and is also reflected in the way important matters are voted on in the House of Deputies. They vote “by orders,” which means that each diocese gets one vote when the lay order votes and one vote when the clergy vote. At the General Convention just concluded in Anaheim, the two controversial resolutions were both voted on by orders. That is why when you read the results of the votes, they were given as, e.g., 78 yes. There were over four hundred deputies in each order, but the votes were not 290 yes to 150 no. They were 78 yes, 22 no and 8 divided. This reflects the number of dioceses present and voting, not the number of people.
Next, given that the members of the association are the dioceses and the law says the members can organize themselves however they see fit, how does TEC governance work? The first hint is something I have already said: the founders of TEC chose a form of organization that was not at that time recognizable as a legal entity apart from its members. And we still see that basic concept today when we look at the governing principles in TEC’s constitution. We find there a recognition of several legislative bodies. There is a General Convention, but there are also diocesan conventions. And there are no general limitations placed on the authority of either, although there are some specific limitations on each.
This overlapping jurisdiction—we call it concurrent jurisdiction in the law—is not as odd as it might seem at first glance. The Congress and state legislatures frequently legislate on the same things and many court cases could be filed in either the state court or the federal court. And on a more practical level, this concept of overlapping unlimited authority is familiar to everyone through property law. We probably all have joint bank accounts, and we know that any owner of the account can draw on the entire account.
But in the case of concurrent legislative jurisdiction the question quickly arises as to which legislature has priority. This is a question to which the law gives two answers. The most ancient answer, going back to the Romans if not before, is called the “last in time” rule. The last legislature to speak prevails.
To take only one example here, you may not realize that there are actually two lawmaking bodies in the federal government. One, Congress, you all know. The other is the President acting in international matters with the concurrence of two thirds of the Senate. This kind of law is called a treaty, and the constitution provides that both statutes and treaties are the “law of the land” and gives no priority to either type. Occasionally, a treaty will be inconsistent with a statute and in this case the courts apply the last in time rule. Whichever was later, statute or treaty, prevails.
But another rule of priority developed in the law to change the last in time rule. This is a rule that gives priority to a legislative body based not on temporal sequence, but on identity. And for centuries this priority has been expressed legally in a very precise way, through the language of “supremacy.” The oldest law code now in use, the Code of Canon Law of the Roman Catholic Church, uses this language. One need only look at the Table of Contents to see the chapter entitled “The Hierarchical Constitution of the Church,” section I of which is “The Supreme Authority of the Church.” The first canon in this chapter specifies that the Pope possesses “supreme ordinary power in the Church.”
Not surprisingly, at the time of the English Reformation, when the Church of England broke with Rome, this break was expressed legally in the “Supremacy Act,” which made the British monarch the “supreme governor” of the Church of England. All clergy and government officials had to swear an “oath of supremacy” recognizing the king as the supreme governor. Sir Thomas More lost his head over this oath. It is still required of bishops in the Church of England.
And to take a final example, the reason state legislatures cannot take advantage of the “last in time” rule to overturn or nullify a federal statute is that there is a “Supremacy Clause” in the constitution that makes federal law “the supreme law of the land.” And the reason the state court in Alabama could not overrule the Supreme Court in the NAACP case I cited earlier is that the constitution expressly makes the Supreme Court the supreme court. And the reason there is no priority between Congressional statutes and treaties is that there is no language of supremacy in the constitution giving one priority over the other; they are on a par.
Turning to the TEC constitution, we find that it has no supremacy clause giving General Convention priority over diocesan conventions. There is no language of supremacy or any of its synonyms, such as “highest” or “hierarchical.” The closest the TEC constitution comes to this concept is in the provision making the Bishop and standing committee “the Ecclesiastical Authority” in the diocese. If the bishop is “the” ecclesiastical authority in the diocese, the Presiding Bishop, the General Convention and the Executive Council are not.
So in TEC we have concurrent jurisdiction without supremacy among the General Convention and the various diocesan conventions, and each can theoretically undo what the other has done. But since the diocesan conventions meet three times for every one time the General Convention meets, this gives a distinct legal advantage to the diocese, and as a practical matter, the diocese gets the last word.
Now: what does this mean for the Anglican covenant? I will conclude with three observations.
First, given this concurrent jurisdiction and lack of a supremacy clause, dioceses have the inherent authority to commit themselves to the covenant as soon as it is available. Moreover, given the principles just discussed, if General Convention were someday to adopt the covenant, dioceses that do not want to assume the obligations of mutual responsibility and interdependence entailed by the covenant—and we know there are many such dioceses in TEC—those dioceses would be able to nullify that adoption and those commitments for their dioceses. So TEC’s polity makes it inevitable that dioceses will have to consider the covenant, and they will be able to do so at any time after it is finalized and sent to the member churches of the Anglican Communion early next year.
Second, what does the Anglican covenant, or the Anglican Communion more broadly, have to say about TEC polity? The short and clear answer to this question is: “Absolutely nothing.” The covenant is explicit in saying that nothing in it alters any provision of the constitution or canons of any church. And that has always been understood as a hallmark of the Anglican Communion. Member churches are autonomous. The covenant and the Communion have no say in how we do what we do—unless, I suppose, we abolished bishops altogether. So the frequent complaint directed by some in the House of Deputies to the wider Communion, “you don’t understand our polity,” is irrelevant. The Communion does not need, or perhaps even care, to understand our polity. They have no interest or say in how we do what we do.
But TEC is not just autonomous, it is autonomous in communion. As the Windsor Report put it, “communion is the fundamental limit to autonomy.” If the communion does not care how we do what we do, they do care—deeply in some cases—what we do. There are some things that TEC could do—some say has already done—that put TEC outside the communion. This has nothing to do with TEC polity, but with what that polity produced. It is not a question of “how”; it is a question of “what.” And that is why the refrain, “you don’t understand our polity” is irrelevant.
But the process by which a church commits to the covenant is a “how” question, not a “what” question. The Anglican Consultative Council recommended last May that the covenant be sent early next year to the member churches of the Anglican Communion. And when it goes to the member churches, the Anglican covenant specifies that it is to be considered “according to [the member church’s] own constitutional procedures.” As we have seen, those constitutional procedures in TEC permit, and indeed require, dioceses to consider the covenant. This is not a question that the Anglican Consultative Council determines or the Primates’ Meeting or even the Archbishop of Canterbury. The question of constitutional procedures is a matter for TEC alone. It is a question of polity.
Now, one final issue: if the Anglican covenant and the Anglican Communion more broadly have nothing to say about TEC polity, what implications does TEC’s polity have for the covenant and the Communion? Here we get into murkier waters. One of the Anglican Communion documents, the constitution of the Anglican Consultative Council, appears at first glance to treat all member churches alike, including, for example, the established Church of England with explicit hierarchical supremacy and TEC, which is a voluntary association of dioceses without supremacy. At the same time, however, the Anglican Communion explicitly disavows any role in determining the internal polity of the member churches.
This contradiction gives rise to possible confusion. When the covenant is sent to member churches as listed on the ACC membership schedule, it will be sent to “The Episcopal Church.” How does the Communion interpret a response coming back that says “Dallas, yes, Los Angeles, no”? The Archbishop of Canterbury has recognized this problem and has stated that work is being done on it and he hopes the situation will be clearer by the end of the year. But he suggested that dioceses go ahead and endorse the covenant, notwithstanding this issue, and thereby declare their “intent to live within the agreed terms of the Communion’s life.” This, he says, “would undoubtedly positively affect a diocese’s pastoral and sacramental relations with the rest of the Communion.” And will do so immediately while the other issues are sorted out.
Now it is important to emphasize that reconciling any differences between which churches sign the covenant and those that are currently members of the Anglican Consultative Council will be something the Communion will have to deal with in the coming years. But that is the least important issue from the perspective of the communion-oriented dioceses like Dallas. Has Dallas ever had a representative to the ACC? What is more important from the perspective of the diocese is the impaired “pastoral and sacramental relations” that TEC now suffers with much of the Communion. And it is precisely those relations that the Archbishop has recognized are affected right away by diocesan commitment to the covenant.
And that takes us back to where we started. TEC, unlike the Church of England, is a voluntary association of dioceses. There is no restriction in the governing agreement, the constitution, on the right of dioceses to commit to the covenant. Therefore, when the covenant is sent to member churches of the Anglican Communion next year, dioceses, including Dallas, will be able to undertake the obligations of mutual responsibility and interdependence entailed by the covenant. That is a right they have under TEC’s constitution. That has been TEC’s polity from the beginning. And so it remains.
October 19 2009 11:03 am | Articles