US Churches are free to secede, rules judge

From Religious Intelligence via TitusOneNine:

Thursday, 17th September 2009. 12:05pm

By: George Conger.

There is nothing in the Constitution and Canons of the Episcopal Church that prevents a diocese from seceding from the national church, a Texas judge declared on Sept 16.
US Churches are free to secede, rules judge

On Wednesday Judge John Chupp of Texas’ 141st District Court handed the Episcopal Church a major setback in its campaign to seize the assets of breakaway dioceses, stating that of the two entities holding themselves out as the “Episcopal Diocese of Fort Worth”---Bishop Jack Iker and his diocese affiliated with the Province of the Southern Cone and Bishop Edwin Gulick and his Episcopal Church-affiliated diocese---Bishop Iker’s diocese was the lawful holder of that name, corporate seal and property.

The court’s actions were not a total victory for Bishop Iker, as it did not dismiss as illegitimate the loyalist’s Feb 2009 convention called by Presiding Bishop Katharine Jefferts Schori, nor quash their property suit. However, in his comments to the parties Judge Chupp rejected the Episcopal Church’s central legal premise that while people may leave the Episcopal Church, dioceses may not.

The 80 per cent of the delegates who voted to at the 2008 diocesan convention to quit the Episcopal Church for the Province of the Southern Cone “took the diocese with them,” Judge Chupp said.

With the backing of Presiding Bishop Katharine Jefferts Schori, a loyalist faction within the diocese held a special convention on Feb 7, electing officers and inviting the Bishop Edwin Gulick of Kentucky to serve as interim bishop of Fort Worth. On April 14, the loyalists, styling themselves as the “Episcopal Diocese of Fort Worth” brought suit against the secessionists seeking possession of the diocese’s assets.

On Aug 19 the secessionists filed a Rule 12 motion asking the court to require the attorneys for the loyalists to show that they had the legal authority to bring suit in the name of the “Episcopal Diocese of Forth Worth.”

“Those individuals” bringing the lawsuit “claim to hold offices in the Diocese to which they have never been legally elected,” Bishop Iker argued.

The loyalists responded on Sept 3, filing a motion for partial summary judgment arguing that as “Texas authority establishes that a constituent part of a hierarchical church is comprised of those remaining loyal to the hierarchical denomination” it was the true diocese. They then argued the court should resolve the Rule 12 motion by first deciding upon their request for summary judgment.

At the Sept 9 hearing Judge Chupp denied the loyalist’s plea to place their motion ahead of the secessionist’s Rule 12 motion. Arguments were presented to the court and the hearing was continued until Sept 16, with the judge asking each side to present briefs on the question whether a diocese had the legal authority to withdraw from the General Convention of the Episcopal Church.

At the Wednesday hearing, Judge Chupp declined to accept legal precedents offered by the Episcopal Church that held a parish could not withdraw from a diocese and keep its property, saying this argument was not germane to the question of diocesan secession. He also declined to follow the Fresno, California court ruling in favor of the national church in its suit with the breakaway diocese of San Joaquin.

Instead he charged the parties to “find a place” in the Constitution and Canons of the Episcopal Church “where it says the diocese cannot leave.” Unable to point to such language, loyalist attorney Kathleen Wells told the court that just because the prohibition is not explicit it does not mean it is not there.

Judge Chupp was not persuaded and ruled that the loyalist attorneys had “not discharged their burden of proof that they were hired by individuals holding positions” of legal authority within the diocese and ordered they be “barred from appearing in this suit as attorneys for The Episcopal Diocese of Fort Worth and The Corporation of the Episcopal Diocese of Fort Worth that is associated with Bishop Iker.”

In a statement issued after the hearing Bishop Iker said, “we are pleased that Judge Chupp has recognized the legitimacy of the vote of our Diocesan Convention in November 2008 to withdraw from the General Convention of the Episcopal Church and has ruled that we had the legal right to amend our Constitution in order to do so.”

Conservative activists lauded the ruling also. The Rev Phil Ashey of the American Anglican Council said the decision was a “victory of reason and common sense of the constitution and canons over against the over-reaching of Presiding Bishop Katherine Jefferts Schori.”

Canon lawyer Mark McCall of the Anglican Communion Institute told The Church of England Newspaper, “The judge was absolutely correct when he concluded that there is nothing in the Episcopal Church constitution that prohibits a diocese from withdrawing from General Convention. And the law in the United States is clear that members of religious associations have the right to withdraw from membership.”

The “members” of the General Convention “are dioceses since they are the parties that accede to membership. The oft-stated slogan ‘only individuals can leave’ actually has it backwards. It is a diocese that joins; therefore it is a diocese that has a constitutional right to withdraw,” he noted.

However, the communications director of the loyalist diocese Katie Sherrod dismissed the secessionist’s claims of victory, saying they appear to have been “misinformed.”

The “judge did indeed rule that Jonathan Nelson and Kathleen Wells do not represent Bishop Iker and others associated with him,” and he also declined to dismiss the lawsuit, but “made no other rulings,” she said.

“He made some offhand comments in court. He asked some questions. But he made no other rulings. Every other assertion about any such rulings are simply not factual,” Ms Sherrod told CEN.

The parties return to court on Oct 15.