If one thinks of a true hierarchy like the Roman Catholic Church, there would be no question as to who could authorize a bishop to speak for it in court: it would be the Pope, and nobody but the Pope. Since ECUSA, however, lacks any metropolitan archbishop (the Presiding Bishop is called a "Primate" without the word signifying anything other than that the Presiding Bishop represents ECUSA to the other Churches in the Anglican Communion), there is a very nice question as to just who has sufficient authority under its Constitution to represent it in a court of law. If it were a regular corporation, like General Motors, the matter would be clear: its Chief Executive Officer (or President, as the case may be) would be authorized by the Board of Directors to speak for the corporation in court; or the Board could give him the authority to delegate the task of spokesperson to some other officer of the Corporation.Nothing like that, however, has happened here. General Convention, ECUSA's only legislative body, has not met since 2006, and has never (to my knowledge, at least) specifically authorized any official within the Church to file suit in its name and to speak for it in court. Even if it had purported to do so, there is no provision in the Constitution to which General Convention could point as granting it the authority from the member dioceses to designate a spokesperson to represent the views of all of the dioceses in court---as though they were one. Elementary common sense suggests that the members of a group have to vote on an issue in accordance with their procedures before the position of the group as a whole on that issue may be stated. Even then, there is usually provision made for some means by which any division of opinion can be exhibited: by a "minority report", or by a "statement of the views of the minority", which always accompanies any presentation of the views of the majority.
The recent publication of the Statement by the (Communion Partner) bishops is evidence that just such a minority viewpoint exists in ECUSA today. There ought to be a full debate in General Convention on how to represent, and just what can be represented as, the "views of ECUSA" in any lawsuit. (Imagine how such an allegation would look: "A majority of the dioceses of ECUSA view themselves as subordinate to the national Church, and bound accordingly. A minority disagrees with this position." At least it would put an end to the present practice of sending a deputy of the Presiding Bishop into court to testify that ECUSA is hierarchical beyond dispute, and as a matter of law.)Instead, the Presiding Bishop apparently requested Bishop Buchanan informally, and without seeking approval from General Convention, to assist as an "advisor and testimonial agent" in court proceedings (emphasis added; see the evidence in this post). To be a testimonial agent, however, implies that there is somewhere a principal on whose behalf the agent acts. In the case of ECUSA, as I have argued on many occasions, there is no one principal in the organization; there are only the member dioceses---more than 100 of them. While they come together in General Convention to vote on resolutions and changes and amendments to the national Constitution and Canons, they still do so as individual dioceses. Without any agreed provision in the Constitution and Canons designating one person to represent the position of the Church as a whole in court, there is simply no way by which any individual could automatically assume such authority. So in the very first paragraph and response, ECUSA, Bishop Duncan and his diocese join issue on whether ECUSA's "complaint in intervention" may be said to have been properly filed at all.
Read it all here.
It now seems all the rage for parallel dioceses to be formed and that defections be organized at the diocesan level. I agree with Mr. Haley that this tactic presents different legal issues than those that attend the departures of parishes, such as has happened in Virginia. But I cannot help but note that the evolving tactics of defection (including use of the term "Episcopal") seem driven solely by an effort to find a better legal basis for asserting claims to buildings and accounts. Otherwise, the most direct approach would be simply to walk out the door and start services at a drive=in (if such things still exist), a high school gymnasium or a borrowed Church hall of another denomination. This apparent lust for property is unseemly and undermines the importance of the theological issues at stake. A sure way to stop this enervating litigation is for departing brothers and sisters to make clear that they have no interest in retaining property. The amount wasted on legal fees could build a more than adequate number of new churches.
Whatever the outcome in Pennsylvania, Texas, etc. at least in Virginia it is clear that we do not have departing dioceses and that there is no tension between diocesan positions and those of the national church on issues such as not acquiescing in departing parishioners taking property with them.
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