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May 10, 2012


What’s a Principle Between Bishops?

The Rt. Rev. John C. Bauerschmidt, Bishop of Tennessee, walks a fine line. He is a co-plaintiff, with his Diocese, in a lawsuit he brought against St. Andrew’s parish in Nashville, which in 2006 voted to leave the Diocese of Tennessee and join the Diocese of Quincy. And in that capacity, he recently received a favorable decision from the Court of Appeals, holding that because ECUSA is “hierarchical” at all three levels, the General Convention’s Dennis Canon, enacted in 1979, overrode the parish’s attempt a year before, in 1978, to remove from its Articles all references to the national Church and its canons.

In other words, even though St. Andrew’s had declared in 1978 that it would no longer abide by the national Church’s canons, the Church could, simply because it is “hierarchical”, unilaterally impose a trust on St. Andrew’s property in 1979 by passing a new canon. Said the Court of Appeals:

St. Andrew’s asserts that no matter how clear the church governance documents may be regarding establishment of a trust, those documents do not create a trust in this instance because they simply do not apply to St. Andrew’s. This argument is based upon St. Andrew’s assertion that The Episcopal Church is not hierarchical for all purposes and, in particular, with regard to property ownership and control.
...

The trial court described the organization of The Episcopal Church, including its three tiers and the governance of the general or central church, its dioceses, and its parishes. Those facts establish that The Episcopal Church is a hierarchical church, using the test set out above and the tests applied in Tennessee and other courts.

As stated earlier, property disputes arising when an Episcopalian congregation decides to break away from The Episcopal Church have been before the courts in a number of states. In all of the opinions we have reviewed, either the parties agreed, or the courts concluded, that The Episcopal Church is hierarchical…. 

St. Andrew’s has cited no case in which a court has concluded The Episcopal Church is not hierarchical, for property matters or otherwise….

In reaction to this decision, Bishop Bauerschmidt issued a statement which said in part: “The Bishop and Diocesan leadership have a responsibility to see that resources held in trust for the Episcopal Church are used for the Episcopal Church..” It was, of course, Bishop Bauerschmidt and his attorneys who gave the Court its ammunition and its arguments, because they wanted to enjoy all the benefits that come from being classed as “hierarchical”, even in a State which supposedly applies “neutral principles of law” to church property disputes. But the Tennessee Court of Appeals went the plaintiffs one step farther. It held that St. Andrew’s could not even raise a disputed issue of fact as to whether ECUSA is hierarchical:

St. Andrew’s [Nashville] contends that it created a genuine issue of material fact concerning whether The Episcopal Church is hierarchical for temporal matters, including property disputes. St. Andrew’s submitted an affidavit by a former bishop of a diocese in Illinois, an affidavit by a board member of a diocese in Florida, and a document entitled Bishops’ Statement on the Polity of The Episcopal Church (the “Bishops’ Statement”). The former bishop stated that The Episcopal Church is not hierarchical for any purpose. The board member opined that The Episcopal Church is not hierarchical for “the issues in this dispute.” The Bishops’ Statement is dated April 18, 2009, and appears to be authored by fifteen or so bishops and former bishops, but does not appear to be sanctioned by The Episcopal Church or the General Convention. The Bishops’ Statement suggests, inter alia, that The Episcopal Church is a voluntary association of equal dioceses.

The affidavits St. Andrew’s offered do not create a disputed issue of material fact because the affiants were simply offering their opinions and interpretations of the constitutions and canons, not facts. The constitutions and canons, as well as St. Andrew’s filings and Articles of Association, speak for themselves and are determinative of the issue. As discussed earlier in this opinion, when resolving disputes involving hierarchical churches, the courts will defer to the highest church authority on questions of church governance. In such situations, the courts “are bound to look at the fact that the local congregation is itself but a member of a much larger and more important religious organization, and is under its government and control, and is bound by its orders and judgments.” Watson v. Jones, 80 U.S. at 726-27. We think that includes interpretation of church governing documents and interpretation of the basic organization of the church. Consequently, we cannot conclude that there is a factual question regarding the organization and governance of The Episcopal Church and will not inquire into it.

What is remarkable about this casting aside of all contrary evidence is that the Bishops’ Statement, which the Court denigrates because it “does not appear to be sanctioned by The Episcopal Church or the General Convention”, is a statement published in 2009 by fifteen bishops who were all founding members of Communion Partners—of which Bishop Bauerschmidt has been a member since shortly after he assumed diocesan authority in 2007.  He now sits on its Bishops’ Advisory Committee.

The Bishops’ Statement was notoriously leaked by Episcoleft bloggers ahead of its formal publication, in April 2009, by the Anglican Communion Institute, and quickly became their cause célèbre. The bloggers saw no problem in violating privacy and publishing personal emails, because it was more important to “out” the Communion Partners‘ outrageous plans to assert diocesan autonomy, in what they saw as a betrayal of the new Presiding Bishop’s authority.

The resulting brouhaha may have deterred some Communion Partner bishops from signing on to the Statement when published—we will never know. Along with the Anglican Communion Institute, as already noted, fifteen of the twenty-one CP bishops signed the Statement—and Bishop Bauerschmidt was not one of them. (He was still six months away from filing his lawsuit against St. Andrew’s.)

Nor was he a signatory to the recent and controversial amicus brief filed in the Fort Worth case now pending before the Texas Supreme Court, which was signed by seven CP bishops. The brief took the position that ECUSA was not hierarchical above the level of its dioceses, i.e., that the dioceses themselves were autonomous and subject to no higher authority in the Church. As such, it directly opposed the “official” position of ECUSA, emphasized over and over again in its brief in the Fort Worth case, that it was “hierarchical” from top to bottom, with the dioceses occupying the middle level between General Convention and individual parishes.

Thus Bishop Bauerschmidt may take pride from his membership in and advisory role to an organization whose other members are openly opposed to the version of Episcopal “hierarchy” being pushed on the courts by the Presiding Bishop and her attorneys. He may even agree with that stand when it comes to his own Diocese’s autonomy; we may never find out.

When, however, it suits his purposes to use the hierarchy argument to impose the Dennis Canon on a parish against its express will, and despite its attempts to opt out of any such trust in advance, he finds it convenient to align himself with the Presiding Bishop’s position, because it provides him with a ticket to victory in his own case. And he does so, even though it undermines everything for which his fellow CP bishops are presently risking their careers and their miters.

It’s as Groucho Marx once memorably said:

“Those are my principles. And if you don’t like them—-”

[here he paused, and raised those famous eyebrows several times while taking a puff on his cigar, before resuming in a softer voice:]

“Well, I have others.”


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7 comments

Another organization whose governance has always confused me is the Galactic Empire.  In the original _Star Wars_, government claims to be a republic with lay senate, separate Jedi spiritual leadership, and neutral principles of law.  Whereas in fact, an evil Sith Jedi Lord controls an imperial hierarchy of lay governors and military.  But the org. chart is chaotic—Sith Lord Darth Vader takes military orders from Imperial deputies and seems to be a spiritual leader/fighter pilot cum swordsman.  Yet when secular Admiral Motti mocks Vader’s “sorcerous ways” in statecraft, Vader famously defends a form of practical spiritual hierarchy by magically asphyxiating Motti, saying “I find your lack of faith disturbing.”

[1] Posted by The Plantagenets on 5-10-2012 at 08:35 PM · [top]

‘Hedging your bets’ seems common practice for Episcopal bishops these days. Jesus never hedged any bets…he always went all in.

As far as these rulings go…I’m not an attorney, but it seems that when the judge involved is active, critical, asks questions, and seems to care about fairness under the law, then this favors the church being sued by ECUSA. However, when the judge seems to be a person (how did Tolstoy put it?) who just constantly fills or slips into vacant positions, and wants to do the minimum to hold on to his desk, then that poor congregation is doomed before the arguments are even read.

I’d like to have an intelligence test for this fatuous guy in a robe masquerading as a judge: the paper by the bishops that goes against the General Convention’s description of the ‘hierarchical church’ cannot be valid because it was not approved by the same General Convention. Such circularity would have been laughed out of the court in Boston where John Adams argued the Preston Affair in 1770. The exit of American reason seems to have long preceded the awaited exit of American exceptionalism.

[2] Posted by All-Is-True on 5-10-2012 at 10:23 PM · [top]

A dear friend in Europe told me once that, “To princes and bishops there is no such thing as good or evil. Only success or failure.” True words.

[3] Posted by A Senior Priest on 5-10-2012 at 10:28 PM · [top]

I knew Bp. Bauerschmidt when he was rector of Christ Church in Covington, LA.  He and his congregation seemed orthodox and very missional minded.  It has been a supreme personal disappointment to see him devolve into an 815 robot.  A waste of a lot of good potential.

[4] Posted by Capt. Father Warren on 5-11-2012 at 08:04 AM · [top]

I actually find this talk of TEC being de facto “hierarchical” very interesting and I assume that it would be curious to Fredrick V. Mills, Sr., author of Bishops by Ballot: An Eighteenth Century Ecclesiastical Revolution. In this book, which was awarded the Brewer Prize for Church History in 1975, we find this description: “In this work the author demonstrates that at the same time the civil revolution was under way there was also an ecclesiastical revolution within the oldest continuous religious communion in the English-speaking part of the New World: the Church of England in America.
After the war new leaders arose who formed a church government based on on the republican concepts of the new nation. The substitution of these concepts in place of the hierarchical ones permitted the Protestant Episcopal Church to be born, achieve its identity, and contribute a significant chapter to the annals of American history.”

It is an interesting read and makes an historical case that is quite at odds with the current claims of TEC.

[5] Posted by Fr. Mark on 5-11-2012 at 09:10 AM · [top]

It seems to me the money statement is “...when resolving disputes involving hierarchical churches, the courts will defer to the highest church authority on questions of church governance.”

It’s a little bit of circular reasoning - the court asks the “highest church authority” if they are hierarchical; if they answer yes and can back it up with Canons, etc., then going forward they defer to the “highest church authority” on all issues of church authority.  So then there isn’t any reason for them to listen to any other arguments.  Game over.

Of course, no one thought “it would come to this” when Canons were voted on in GC in the 1970’s.  While the liberals were patiently and quietly plotting TEC’s demise we were all assuming they were being honest and up-front, as we would expect clergy to behave.  Very sad.

[6] Posted by B. Hunter on 5-11-2012 at 09:53 AM · [top]

I resubmit my question - if Tec is hierarchical, why are they not responsible for the sexual abuse claims at the parish or diocesan level?

I just can’t believe that at least one plaintiff’s attorney has not jumped on that bandwagon with both feet or at least one brief.  It is not as if there are not a lot of these claims out there.  Or alternatively, one whose claim was previously denied - would there not be a cause of action?

[7] Posted by Jackie on 5-11-2012 at 03:25 PM · [top]

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