TOWARD A RESOLUTION

Part IV

(First posted on Jan. 11, 2018).
This is the fourth part of my series "Toward a Resolution" of the schism. In this collection of blog posts, we are looking at some of the important questions about the schism as we seek a truthful understanding of the church split in South Carolina. Today, we are considering the question:

DID THE DIOCESE OF SOUTH CAROLINA HAVE THE RIGHT TO WITHDRAW FROM THE EPISCOPAL CHURCH?

This question is not as easy to answer as the first two. It raises a contentious issue that has been roundly debated by informed people. That said, let us try to arrive at a reasonable answer.

Other ways of asking this same question are:

---Is the Episcopal Church hierarchical? That is, does the church have tiers of superiority (top-down), or, is the church congregational (bottom-up)?

---Does sovereignty rest in the church as a whole, or in the individual parts. That is, does the General Convention rule over the dioceses, or, are the dioceses over the General Convention?

Before, during, and after the schism, the leaders of DSC claimed the diocese was sovereign, that is, having its own independent authority. They said the diocese existed before the Episcopal Church and never surrendered its sovereignty to the Church. Therefore, it could nullify church laws and resolutions at will and leave the Church when it pleased. They said DSC was created in 1785, TEC in 1789. 

[HISTORICAL NOTE. It is not true that DSC existed before TEC. In fact, TEC held its first general convention in 1784 and invited the churches of SC to organize a state convention. The next year, SC agreed and did so. In 1789, delegates from SC and eight other states adopted the church's Constitution and Canons for their states simply by signing them. Their signatures on the documents automatically joined SC to the larger church. The C and C did not have to be ratified by the states individually after the fact as the U.S. Constitution which did not go into effect until nine states approved it, and that took a year. It is not true to say that DSC never surrendered sovereignty to TEC. By signing the C and C in 1789, the delegates from SC recognized the right of the national Church to make laws equally applicable to all states (dioceses).](p. 5-9) 

DSC did withdraw from TEC in the Civil War. This, however, was made absolutely necessary by the conditions of war. It was not a desired or pre-planned occurrence. In no way was it meant to be a criticism of the national Church. As soon as the war was over, SC, and all the other Confederate dioceses, went right back into TEC as if nothing had happened. (p. 16)

DSC began voting to nullify TEC decisions in the wake of the Robinson affair of 2003. In 2009-2010, DSC declared its independence, discarded all attachment to TEC except accession to TEC's constitution, and resolved to withdraw from all church governing bodies it wished at will. To the DSC leaders, the schism of 2012 was simply another expression of this inherent power.

On the other hand, the TEC authorities maintained that dioceses could not enter, divide, or leave the church without canonical permission. Moreover, all clergy were required to give an oath of allegiance to the Episcopal Church and dioceses were required to adhere to the resolutions and canons passed by the General Convention.

A major cause of the contention on this question arose from two gaps in TEC's Constitutions and Canons. In the first, they had no provision regarding diocesan secession from the church. There was no explicit clause forbidding a diocese from leaving the church. Similarly, the U.S. Constitution did not have a provision barring a state from leaving the union (600,000 deaths settled that one). In the second place, the TEC C and C did not have a supremacy clause stating explicitly that acts of General Convention would take precedence over local decisions. The U.S. Constitution, on the other hand, did have a supremacy clause giving laws of the federal government superiority over the states. Partisans for local rights, as in South Carolina, often cited these two gaps in the TEC C and C in support of their claims to local sovereignty.

The nature of the Episcopal Church government has been argued energetically for many years now. In ways, the TEC Constitution and Canons were similar to the U. S. Consitution. In other ways, they were not. They were definitely not a carbon copy of the federal constitution even though some of the same men worked on both. Thus, we cannot say that the C and C were parallel to the federal constitution and must be interpreted the same. If they were structurally the same, it would certainly make things easier for all of us today.

The best description of the Episcopal Church government is in James Dator's book, Many Parts, One Body. (p. 12) This is the best scholarly examination and analysis of the church's institutional system. Dator held that the church was set up neither as a federation (as the federal government of 1789) nor as a confederation (as the Articles of Confederation government). It was, he said, a "unitary" system in which the parts automatically bonded as a union. Therefore, every power did not have to be spelled out. It was all implied in the nature of the union. Dioceses were expected to follow the will of the General Convention while they kept a great deal of local control. Dioceses existed only in context of the whole Church. Clergy were all oath bound to adhere to the union. Bishops could be empowered only by consent of consecrated bishops of the wider church.

Thus, the structure of the Episcopal Church was peculiar to the denomination. It was far from the authoritarian top-down model of, say, the Roman Catholic Church, and equally as far from the opposite localism of, say, the Baptist churches. No doubt, the Episcopal Church's unique structure has given the judges in the courts great challenges in arriving at reasonable decisions. 

There have been around one hundred court cases in the U.S. of parishes breaking away from dioceses and claiming the local property in violation of the Dennis Canon. Only one of these has been finally settled on the side of the local congregation, All Saints, Pawleys Island, SC; by state supreme court decision of Sept. 2009. All the rest have been settled in favor of the dioceses or are on appeal. The Episcopal Church has been overwhelmingly but not universally successful in civic courts. It was the principle of hierarchy that made this so.

[Judge Diane Goodstein's Feb. 3, 2015 decision in the (SC state) circuit court declared TEC to be congregational. It was ridiculed to death and discarded on Sept. 23, 2015, by the justices of the South Carolina supreme court. Not one justice defended it.]

All of the five cases of dioceses voting to leave TEC (2007-2012) have gone to court. Judges' decisions have been wide-ranging. Three cases have been finally settled. Two are still in court. Of the three settled, two went entirely to the Church side (Pittsburgh and San Joaquin); and the breakaways lost the property and the rights of the old diocese. One went to the breakaway side (Quincy) as the Illinois state courts held to a strict interpretation. The judges there said the Episcopal Church C and C did not prevent a diocese from leaving and did not explicitly give the General Convention power over the dioceses. Ft. Worth is pending in the state appeals court. South Carolina is still hung up in state court, although the state supreme court ruled (twice) largely in favor of the Episcopal Church. There is also a federal case pending in SC. It is likely the courts in SC will finally come down on the Church side. The preponderance of judicial opinion in the United States favors the Episcopal Church on the basis of hierarchy.

So, in view of all this wide difference of opinion, how can we possibly answer the question at hand? I am neither a constitutional expert nor a canonical law scholar. I can only go by the information I have and common sense. All I can tell you is what I think is reasonable to conclude. Here is what I think:

If one joins a group, he or she accepts the rules of the group. That is the condition of joining. Larger and more important groups have elaborate structures such as constitutions. These automatically bind the parts together under the agreed upon terms. In order to become part of the larger union, one has to surrender a certain amount of freedom and independence. A larger union is a commune in which the individual parts give up some share, at least small, in return for a greater good. The union is greater than the individual parts. 

The Episcopal Church's 1789 Constitution and Canons set up one large body to make the decisions for the whole but did not negate local freedom beyond that. The framers of the C and C tried to strike a balance between local rights and overall rule. They left a great deal implied and not specified in the C and C. Still, the nature of the C and C was one church and one decision-making body (of two houses) for the whole church. This set up a clear hierarchy in which the General Convention, a union composed of the individual parts, by consensus made the rules, regulations, and laws to be equally applied throughout the church. There was no provision, not even an implied one, for a local diocese to reject the decisions of the General Convention. The delegates from South Carolina understood this clearly as they signed the documents of union for the state in 1789.

No one summarized the relationship between the national Church and the dioceses better than did Bishop Gray Temple in his address to the SC diocesan convention in 1967:

The General Convention is to the Dioceses what Congress is to the State legislature. Each Diocese governs its own affairs through its annual convention, but only under over-all policy and law set by the General Convention.

Throughout the years, the great consensus of opinion among scholars and judges has been that the Episcopal Church is an hierarchical institution (e.g., the majority of the SC supreme court). The national church (embodied in the consensus will of the General Convention) is over the diocese. The diocese is over the parish. The entire system is overlain by the Church's agreed-upon rules given in the Constitution and Canons. Dioceses are not free to discard the rules any more than clergy are free to ignore their vows. 

Freedom of religion means that people are free to follow whatever religion they wish, as long as they are not violating the civil laws. The cardinal American principle of the separation of church and state means that religious institutions are free to govern themselves as they see fit. Under the First Amendment to the U.S. Constitution, civic courts are forbidden from interfering in the internal matters of a religious institution. 

Under the Episcopal Church structure, a diocese is a part of the larger system. It surrendered a share of independence when it entered the church. As akin to a contract, it is not free to revoke that on its own. People are free to leave the church as they wish but dioceses are not.

Shorter answer:

There is an overwhelming consensus of opinion among scholars and judges that the Episcopal Church is an hierarchical institution. Hierarchy means layers of increasing superiority. The top of this stack would be the General Convention. Individual parts of the church are subject to the decisions of the General Convention. The Church's Constitutions and Canons, adopted by the General Convention, provide for ways dioceses may enter, divide, and leave the Episcopal Church. The Diocese of South Carolina did not abide by these rules in 2012.

The Diocese of South Carolina did not have the right to violate the laws of the Episcopal Church. It did not have the right to withdraw from the Church on its own terms.

The clergy and laity of the old diocese of South Carolina were certainly free to leave the Episcopal Church at will. They were not free, however, to take the local institution of the Church diocese with them.

The South Carolina Supreme Court validated this on Aug. 2, 2017.


Shortest answer:

No, the Diocese of South Carolina did not have the right to withdraw from the Episcopal Church.