The Division of The Episcopal Church: First Post-Trial Briefs Filed Today

BB NOTE: Here is an excerpt from the opening Post-Trial brief that was filed today by the VA CANA Churches following the trial in November. The entire Post-Trial briefings (both the CANA churches as well as TEC and the DoV) should be up soon online and we'll link here as soon as they are.

The Opposition Briefs (which respond to the arguments made in each of the briefs filed today with Judge Randy Bellows) are due on January 11, 2007. The Reply Briefs will follow on January 17, 2007. Following that date we can expect a ruling on this historic case.

Here is an excerpt from Section IV of the Post-Trial Brief (pg. 49-60):

IV. The CANA Congregations Have Independently Satisfied the Requirements of Virginia Code § 57-9 By Establishing The Existence Of A Division In The Worldwide Anglican Communion And The Existence Of Branches Resulting From That Division.

The CANA Congregations proved at trial the existence of divisions not only in TEC and the Diocese, but also in the worldwide Anglican Communion. In Part IV.A, we explain that the division in the Anglican Communion is evidenced by 2005 amendments to the Church of Nigeria’s constitution, which ended that church’s legal and structural relationship with TEC; by official statements of “broken” and “impaired” communion promulgated by multiple Anglican Provinces; and by a number of other official pronouncements from various organs of the Anglican Communion, all recognizing the existence of this international division. In Part IV.B., we explain that the result of this division is the existence of two branches of the Anglican Communion—those who continue relating to all Provinces that relate to the See of Canterbury, and those who have cut off their relationship with TEC and relate only to Provinces that are viewed as adherents to the historic Anglican faith. In Part IV.C, we explain that the Anglican Communion is a “church” or “religious society” within the ordinary meaning of those terms. And in Part IV.D., we explain that prior to their votes the CANA Congregations were, through their affiliation with TEC and the Diocese, “attached” to the Anglican Communion.

A. The CANA Congregations Have Demonstrated that a “Division” Has Occurred in the Anglican Communion.

The evidence presented at trial independently demonstrates that there has been a “division” in the Anglican Communion. See Sept. 14, 2007, Tr. 41 (directing the parties to address whether “there [is] a division within the Anglican Communion”).

The division in the Anglican Communion is most decisively demonstrated by the 2005 amendments to the Constitution of the Church of Nigeria, which redefine the Church of Nigeria’s legal and structural relationships to other provinces of the Anglican Communion. Registrar Abraham Yisa, the constitutionally elected chief legal advisor to the entire Church of Nigeria (Tr. 544-45), testified at trial that the Church of Nigeria amended its Constitution in 2005 to redefine its relationship to other provinces the Anglican Communion (Tr. 582-84). Registrar Yisa testified that these 2005 amendments changed the legal, structural, and functional relationship between the Church of Nigeria and other Provinces of the Anglican Communion. Tr. 582-84; 590-97.

Prior to 2005, the Church of Nigeria Constitution defined the Church’s legal relationship to the Anglican Communion in terms of its relationship to the See (the Archbishop) of Canterbury, by stating that “[t]he Church of Nigeria shall be in full communion with the See of Canterbury and with all dioceses, provinces and regional churches which are in full communion with the See of Canterbury.” Tr. 585 (Yisa). The 2005 amendments altered the Church’s relationship to the Anglican Communion, changing the relevant sections of the Constitution to provide that “[t]he Church of Nigeria (Anglican Communion) . . . shall be in full communion with Anglican Dioceses and Provinces that hold and maintain the historic faith, doctrine, sacrament and discipline of the One Holy, Catholic, and Apostolic Church as the Lord has commanded in His holy word and as the same are received as taught in the Book of Common Prayer and the ordinal of 1662, and in the 39 Articles of Religion.” Tr. 584-85 (Yisa). As a result, the Church of Nigeria’s constitutional, legal, and structural relationship to the Anglican Communion and to other Anglican Communion Provinces “did not have to be through the See of Canterbury, but that the Church of Nigeria could be in communion with all of those Anglican dioceses, provinces and churches that share the same historical view, the historical faith with Nigeria.” Tr. 585 (Yisa).

A second 2005 amendment to the Constitution gave the General Synod of the Church of Nigeria the constitutional power “to create convocations, chaplaincies of like-minded faith outside Nigeria, and to appoint persons within or outside Nigeria to administer them, and the Primate shall give Episcopal oversight.” Tr. 587 (Yisa). This amendment was designed to “put structures” in place that would “enable the Primate [of the Church of Nigeria] to give Episcopal oversight” to “congregations in America.” Tr. 587 (Yisa). “The amendment now allowed the Church of Nigeria to—Synod in particular—to create convocations outside Church of Nigeria.” Tr. 589 (Yisa).

Similarly, a third 2005 amendment defines the term convocation: “Convocation shall mean non-geographic connection of churches and mission.” Tr. 590 (Yisa). These two constitutional amendments were specifically adopted in order to provide a proper constitutional and legal basis for the establishment of CANA. Tr. 592-93, 609-13 (Yisa).

Registrar Yisa testified that all of these 2005 amendments were essentially structural in character and changed the constitutional structure of the Church of Nigeria. Tr. 590-91. He testified that they were proposed in response to the actions of TEC at its General Convention 2003, Tr. 590, and that they were “necessitated” to effectuate “the resolution of the [Church of Nigeria’s General] Synod that broke communion with ECUSA.” Tr. 584. The primary and immediate purpose of these amendments was to redefine the legal relationships between the Church of Nigeria and TEC, Tr. 585-86, 590-91 (Yisa), and between the Church of Nigeria and other Anglican provinces, Tr. 585-86 (Yisa), as well as to permit the establishment of CANA, Tr. 592-93; 609-13 (Yisa).26 Professor Douglas acknowledged that this change “altered the relationship between the Church of Nigeria and the Episcopal Church.” Tr. 950-51 (Douglas).

The Church of Nigeria resolution that broke communion with TEC was likewise structural in nature: it was initially adopted by the Episcopal Synod (the House of Bishops) of the Church, and then reported to the General Synod (the general legislative body) of the Church, which received it and took further actions on it, including amending the Church’s Constitution and providing for the establishment of CANA. Tr. 557-61 (Yisa). As Professor Douglas acknowledged in response to a question from the Court: “a province declaring that it was out of communion with another province” is “the most severe action one province could take to disassociate itself from another province”—“the most severe declaration it could do.” Tr. 993-94. He further acknowledged that statements of “broken communion” have become “common parlance as of late,” but that “previous to 2003 and in the ‘80s that was not the language that was used to discuss the tensions and relationships between the Churches of the Anglican Communion.” Tr. 999-1000.

This resolution of broken communion with another province of the Anglican Communion also has a major practical impact. It “means that a number of things like the fellowship, exchange of visits by our clergy, by the Primates, training programs, retreats, workshops, indeed financial assistance in some cases were no longer there.” Tr. 591-92 (Yisa). Thus, for example, the Church of Nigeria no longer receives financial contributions from TEC, has refused such contributions when offered, and no longer has exchanges of Bishops with TEC. Tr. 592 (Yisa).

The resolution of broken communion also reflected and implemented the departure of existing congregations and clergy (including Nigerian ex-patriots) resident in the United States that had been under the ecclesiastical jurisdiction of TEC and then came under the ecclesiastical jurisdiction of CANA. Tr. 596-97 (Yisa). Here again, as Professor Douglas acknowledged, “[i]f one church or the other functioned as if they had no relationship with another church in the Anglican Communion,” that would “evidence a division of the Anglican Communion.” Tr. 960:4-10. That is precisely what has occurred between TEC and the Church of Nigerian.

The Church of Nigeria was not alone in declaring itself to be in broken or impaired communion with TEC as a result of the actions of TEC at its 2003 General Convention. In his capacity as a member of the Anglican Consultative Council, Registrar Yisa was aware of a number of other Provinces—including the Anglican Provinces of Uganda, Kenya, the West Indies, and Southern Cone—that have done the same. Tr. 597-602. The Windsor Report of the Lambeth Commission on Communion also recognizes numerous declarations of broken or impaired communion CANA Cong. Exh. 61 at 19 & n.17 (The Report of the Lambeth Commission on Communion (the “Windsor Report”)).

The legal and practical implications of these declarations are much the same as for the Church of Nigeria. Tr. 591-92 (Yisa). Such Provinces “cannot share fellowship, ministry, Eucharist or gifts.” Tr. 601 (Yisa). Mr. Yisa testified, based upon his experience as Registrar of the Church of Nigeria and as a voting member of the Anglican Consultative Council, that there has never before been any division in the Anglican Communion comparable to the division caused by the 2003 TEC General Convention. Tr. 613. Professor Douglas’ testimony was much to the same effect. Tr. 998-1000.

Finally, the division in the Anglican Communion is evidenced by statements from various organs of the Anglican Communion, TEC, and the Diocese, all recognizing or referring to the division in various ways. For example, the Primates of the Anglican Communion, at their emergency meeting in the fall of 2003, issued a unanimous joint communiqué that the actions of TEC in 2003 would result in “tearing the fabric of the Communion at its deepest level.” Tr. 336 (Minns); Tr. 468 (Yates). Similarly, the eighteen Anglican Primates of the Global South issued a Communiqué from their meeting in Nairobi, Kenya in 2004, stating the TEC “has willfully torn ‘the fabric of the Communion at its deepest level,’ and as a consequence openly cut themselves adrift and broken the sacramental fellowship of the Communion.” Tr. 335-336 (Minns).

Following the mandate of the 2003 Anglican Primates Meeting, the Windsor Report acknowledged that the actions of the TEC 2003 General Convention “have uncovered major divisions throughout the Anglican Communion” and stated that “[t]hose divisions have been obvious at several levels of Anglican life: between provinces, between dioceses and between individual Anglican clergy and laity.” CANA Cong. Exh. 61 at 4. The Windsor Report recommended, and the Anglican Consultative Council (ACC) implemented, the withdrawal of the representatives of TEC from the ACC at least until the 2008 Lambeth Conference. Tr. 627-629 (Yisa). As Registrar Yisa explained, these actions are yet another indicator of the division within the Anglican Communion, as well as an attempt by the Communion to try to find solutions to this brokenness. Tr. 629.

B. The CANA Congregations Have Established that the Church of Nigeria Is A “Branch” of the Anglican Communion that Has Divided From the Episcopal Church.

As a result of these recent changes, the Anglican Communion is now divided into two “branches”—those that relate to all provinces that relate to the See of Canterbury, and those that relate only to those who are understood as adhering to the historic faith, doctrine, and discipline of the Anglican Communion. See Sept. 14, 2007, Tr. 41 (directing the parties to address the branch issue at the Anglican Communion level). The Church of Nigeria, with which the CANA Congregations have affiliated, is the principal leader of this new branch. Tr. 363-64, 372-74 (Minns); Tr. 639-40 (Yisa). Indeed, TEC Presiding Bishop Schori herself referred to CANA as a distinct “part” or “branch of the Anglican Communion” repeatedly in her deposition. Schori Dep, Designations 54-56, 79, 83. The evidence at trial thus independently satisfied the “branch” requirement of § 57-9 at the Anglican Communion level.

C. The CANA Congregations Have Established that the Anglican Communion Is a “Church” or “Religious Society.”

The evidence at trial also established that the Anglican Communion is a “church” or a “religious society” within the meaning of § 57-9. See Sept. 14, 2007, Tr. 40 (directing the parties to address whether “the Anglican Communion [is] a church or religious society” and whether a “religious society” “include[s] a non-hierarchical loose affiliation of religious entities”).27

As an initial matter, the common definition of “church” is simply “a particular Christian organization with its own distinctive doctrines,”28 or “a body or organization of religious believers: as a: the whole body of Christians[,] b: denomination , c: congregation.” 29 The Anglican Communion satisfies both of these definitions. As stated in the Preamble to the TEC Constitution, the Anglican Communion is a Christian organization with distinctive doctrines and a common liturgy, primarily “the historic Faith and Order as set forth in the Book of Common Prayer.”30 The Anglican Communion is also, as TEC witness Douglas acknowledged, “a body of religious believers.” Tr. 911:10-15.

In an attempt to avoid these plain meanings of “church,” TEC attempts to add new and unnecessary elements to its definition of that term. Thus, Professor Mullin would require not only the existence of common doctrines, but also formally agreed-upon rules of worship, liturgy, ordination, and discipline that are legally binding on all individual members of the organization. Tr. 1029-30. Professor Mullin provides no authority for his personal definition of a church. Tr. 1029:19-1030:14 (“it seems to me that a church—the word church in—has three very different parlances”). He bases it primarily on minor variances in the liturgy of the Book of Common Prayer, as adopted by different provinces of the Anglican Communion (Tr. 1030:18-1031:6), ignoring the fact that the Preamble to TEC’s own Constitution expressly recognizes the use of the Book of Common Prayer, even with provincial variations, as a key defining and unifying element of the Anglican Communion.

The CANA Congregations likewise established that the Anglican Communion constitutes a “religious society” for purposes of §57-9. The term “religious society” is not defined in §57-9, or in relevant historical or modern dictionaries. The term “society” is familiar, however, commonly defined in the 19th century as “[a] number of persons associated for any temporary or permanent objects,”31 and in modern dictionaries as “an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another.”32 Indeed, the terms “society,” “association,” and “fellowship” are all synonyms.33 A religious society is thus an association, fellowship, or group that has a religious nature or purpose.

There was abundant evidence at trial that the Anglican Communion is a fellowship, association, or society of churches—i.e., a religious society. The Preamble to the TEC Constitution defines the Anglican Communion as “a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and regional Churches.” Moreover, both TEC expert witnesses expressly agreed that the Anglican Communion is a “fellowship of churches.”34 Professor Douglas further acknowledged that the Anglican Communion is an enduring group whose members have developed organized patterns of relationships through their shared history and other interactions with one another, mirroring the modern dictionary definition of “society.” Tr. 908:21-910:4. Indeed, Professor Douglas’ primary concern with the terms “fellowship,” “association,” “society,” and group was not that they are inaccurate, but that he prefers to use stronger terms, such as “family,” to describe the nature of communion. Tr. 916:4–918:17. To him, terms such as “association” and “fellowship” and “society” “impl[y] a much looser kind of federation or voluntary association that doesn’t get at the historic DNA and relationship as a family of churches.” Tr. 912:19-21. As such a society, fellowship, association, group, or family of churches, the Anglican Communion clearly constitutes a “religious society” within the meaning of § 57-9.

D. The CANA Congregations Were “Attached” to the Anglican Communion

The evidence also establishes that prior to their votes in 2006 and 2007, the CANA Congregations were, by virtue of their affiliation with TEC and the Diocese, “attached” to the Anglican Communion within the meaning of §57-9. See Sept. 14, 2007, Tr. 41 (directing the parties to address whether “the departing churches [were] attached to the Anglican Communion”).35

The word “attached” is not defined in §57-9, and therefore must be given its common meaning. That meaning, according to both 19th century and modern dictionaries, is simple: “to connect, in a figurative sense”,36 “[t]o connect as an adjunct or associated condition or part”; or “[t]o bind by emotional ties, as of affection or loyalty.”37

Applying these common meanings demonstrates that the CANA Congregations were attached to the Anglican Communion—they were connected, in a figurative sense, through their affiliation with TEC and the Diocese, as well as by “bonds of affection” that characterize the communion of individual Anglicans and of their churches with the broader Anglican Communion. 38

TEC and the Diocese have admitted that the CANA Congregations were all “attached” to the Diocese and, through the Diocese, to TEC. Professor Douglas testified that a congregation’s attachment to TEC is an indirect one, mediated through the congregation’s relationship with a diocese.39 It is undisputed that at all times that the CANA Congregations were attached to the Diocese and to TEC. Moreover, the Preamble to the TEC Constitution states that TEC is a “constituent member” of the Anglican Communion.40 Accordingly, the CANA Congregations were no less “attached” to the Anglican Communion than they were to TEC. In this regard, the CANA Congregations’ attachment to the Anglican Communion while affiliated with the Diocese and TEC parallels their current attachment to the Anglican Communion through CANA and the Church of Nigeria.41

Thus the plain meaning of “attached” as well as its use within § 57-9 both establish that the CANA Congregations were “attached” to the Anglican Communion within the meaning of § 57-9. See Sept. 14, 2007, Tr. 39 (directing the parties to address the “question[s], does a church have to be hierarchical to be subject to 57-9(A)” and “in order to be attached . . . to a church or religious society, does a local church have to be subordinate to or controlled by a national church or religious society”).

In summary, the CANA Congregations have provided three separate grounds on which the Court may find the requirements of Va. Code §57-9 to have been satisfied: the division in the Episcopal Church, the division in Diocese of Virginia, and the division in the worldwide Anglican Communion.

NOTES: 25 Fifteen of these 20 congregations are former Diocese of Virginia congregations who joined ADV as “complete congregations.” Tr. 698 (Allison). Eleven of these 15 congregations (the parties to this lawsuit) are also affiliated with CANA, and four of them are also affiliated with the Church of Uganda’s American arm (an arrangement approved by the Primates of the Church of Nigeria and the Church of Uganda). Tr. 699-701 (Allison). Of the other five congregations, one came from another TEC diocese in Virginia and four are “church plants,” or “new churches.” Tr. 699-700 (Allison). Even these four new churches, however, are led by former TEC clergy and “[v]irtually all” of their members came from TEC. Tr. 697-98 (Allison). 26 As the primary author of those 2005 amendments and the undisputed authority regarding the Constitution of the Church of Nigeria (Tr. 550-551; 590), Mr. Yisa’s explanation of these amendments and their legal, structural, and practical effects must be controlling. TEC expert Douglas acknowledged that the Church of Nigeria is the primary interpreter of its Constitution and that TEC does not have any authority to interpret that Constitution or to determine its meaning and effect. Tr. 940-942. Indeed, to the extent that Professor Douglas offered any opinion regarding these amendments and their meaning and effect, he did so without having reviewed the Constitution or the amendments, but rather based entirely upon having “read press releases in I guess it was 2006, summer” that mentioned the changes to the Constitution. Tr. 941:13–942:5. 27 It is undisputed that both TEC and the Diocese are a “church” or “religious society” within the meaning of § 57-9. See CANA Exh. 171 at 4 (Diocese’s Response to Congregations’ First Set of Interrogatories) (“The Episcopal Church and the Diocese are churches or religious societies within the meaning of § 57-9(A)”). 28 See Compact Oxford English Dictionary of Current English, Third Edition (2005). 29 See Merriam-Webster Online Dictionary, at www.merriam-webster.com. 30 TEC-Diocese Exh. 2 at 1 (defining the Anglican Communion as “a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and regional Churches in communion with the See of Canterbury, upholding and propagating the historic Faith and Order as set forth in the Book of Common Prayer” (emphasis added)). 31 Noah Webster, A Dictionary of the English Language 682 (1872) (preface dated 1867). 32 See Merriam-Webster Online Dictionary, at http://www.merriam-webster.com/dictionary/- society (entry for “society”). 33 See Roget’s New Millennium™ Thesaurus (1st ed. 2007) (entry for “society”). 34 See, e.g., Tr. 1029:14-18 (Mullin) (“the Anglican Communion . . . is a Fellowship within the Holy Catholic and Apostolic Church of churches in communion with the Archbishop of Canterbury.”); Tr. 916:4-918:17 (Douglas) (acknowledging that the Anglican Communion is an association and fellowship of churches); Tr. 846:2-10 (Douglas) (describing the “Anglican Communion as a family of churches”). 35 It is undisputed that the CANA Congregations were “attached” to TEC and the Diocese, within the meaning of Va. Code § 57-9, prior to their votes to disaffiliate therefrom in 2006 and 2007. TEC-Diocese Exh. 5 at 4 (CANA Congregations’ Answer to [TEC-Diocese’s] First Interrogatories). 36 Noah Webster, A Dictionary of the English Language 44 (1872) (preface dated 1867). 37 The American Heritage Dictionary of the English Language, Fourth Edition (2004) (entry for “attached”). 38 See Windsor Report, CANA Exh. 61 at 24 ¶ 45 (“The communion we enjoy as Anglicans involves a sharing in double ‘bonds of affection’: those that flow from our shared status as children of God in Christ, and those that arise from our shared and inherited identity, which is the particular history of the churches to which we belong”).