This, then, is the first major point for the Diocese of South Carolina to realize: the choice of whether or not to remain in ECUSA belongs entirely to it. No bishop, Presiding Bishop, House of Bishops, or General Convention of ECUSA has the power to declare that the Diocese of South Carolina is no longer one of ECUSA’s members.

Bishop Lawrence of the Diocese of South Carolina will soon return from the vacation on which he said he would pray and ponder about the choices facing him and his Diocese. Your Curmudgeon does not want to co-opt any of the deliberations which Bishop Lawrence, his clergy, and the lay members of his Diocese must undergo in the coming weeks. Nevertheless, it seemed fitting that a systematic way of approaching the questions might help to further the necessary dialogue. Consider this post, therefore, as the first in a series of tentative steps taken to explore all the available options. The final choice, of course, rests with the Diocese (speaking through its convention).

And that, it turns out, is a very good place in which to start. Just what is the “Diocese of South Carolina”, and what abilities and powers does it have when it speaks through its convention?

Here we must be careful to distinguish the ecclesiastical realities from the legal realities. Dioceses of a Church have dual personalities: they are participants in the Church of which they are a constituent member, and at one and the same time, they are legal entities (“persons”) in the eyes of the State(s) in which they exist, and have their boundaries.

The Episcopal Church (USA), as has been discussed many times on this blog, is a rather unique entity in the eyes of the secular law. It formed itself in 1789, as an “unincorporated association.” But what do those legal terms actually mean?

The fact that ECUSA is “unincorporated” actually speaks volumes — in the legal sense, that is. The word “unincorporated” tags ECUSA as not being a corporation. All corporations are creations of a particular State or federal government, and thus ECUSA’s “personhood” does not depend upon any particular government in existence in 1789 — it is rather a creature of what is known as “the common law”, which we inherited from our mother country of England.

Corporations come into legal existence when a State (or, in some limited cases, as in the instance of the Diocese of Washington, D.C., the federal government) issues a charter. The charter is the official license by which the corporation derives its legal existence — its right to be recognized in the courts of that State (or District) as a person capable of suing, and of being sued.

So the first legal fact of which we must take note is that the Episcopal Church (USA) is not the creation of any particular State, or of the federal government (which did not yet exist when ECUSA was organized). The founders who gathered in New York City in the summer and fall of 1789 did not apply to any of the thirteen colonies for a charter for the Church. They did not do so, for a very good reason: the newly organized Church was not supposed to function as a legal entity in its own right.

ECUSA was (and is) an unincorporated association, i.e., a group of associated entities (dioceses) without a formal legal charter from any governmental authority. In that respect it was like any group of individuals who came together as a club, or “association”, at the time. It is called an “association”, because it consists in its entirety of individuals who have freely chosen to associate, under a governing constitution (or “articles of association”) and bylaws.

Thus the first, and in many ways the most important, legal point to make is that the Diocese of South Carolina — which itself was formed under South Carolina law, because it had no reach outside what would become the State of South Carolina — is just a single member of an unincorporated association, in this case, an association of similar associations called “dioceses,” which in 1789 organized themselves into a Church which they called “the Protestant Episcopal Church in the United States of America”, or PECUSA (and now today’s ECUSA), for short.

When the Diocese of South Carolina helped to form PECUSA, and voted in 1789 for PECUSA’s Constitution, it gave its consent (“acceded”) to that Constitution. But consent, or “accession,” is by definition not forever and always, unless such a permanent (and hence irrevocable) consent is expressed in unequivocal language. The accession to the Constitution of PECUSA by the Diocese of South Carolina was not stated to be “forever”, or “always”, or in any such words expressing irrevocability.

For a parallel in our own time, consider the United Nations. The United States of America has acceded to the Charter (Constitution) of the UN — but that accession (consent) is not permanent. The United States, like any other member nation in the UN, reserves the right to disagree, and to withdraw its accession to the Charter, at any time. (Were the USA to do so, it would of course forfeit its “permanent” position on the UN Security Council. So much for “permanence”, or irrevocability.)

Now here is another unusual fact about associations: unless its governing documents give the rest of the members the power to do so, an association cannot expel one of its members from the association. So ECUSA, for instance, has no power to “kick out” the Diocese of South Carolina, because there is nothing in the Constitution or Canons of ECUSA giving such a power to General Convention, or to any other body (or person) within ECUSA. (That is not to say the current leadership might not try to engineer such a stunt, but it would be highly counter-productive, as explained below.)

This, then, is the first major point for the Diocese of South Carolina to realize: the choice of whether or not to remain in ECUSA belongs entirely to it. No bishop, Presiding Bishop, House of Bishops, or General Convention of ECUSA has the power to declare that the Diocese of South Carolina is no longer one of ECUSA’s members.

And further — why would ECUSA ever want to exercise any such “power”, if it existed? If ECUSA had the ability to dissolve its relationship with any single diocese, then it could no longer make any claim to that diocese’s property. It would, itself, have brought about the circumstances making impossible its claim to any diocesan property, and an ancient maxim of the law is that “no man may profit by his own wrong.” ECUSA, in other words, could not by its own actions in purporting to “expel” a diocese create the occasion by which it could thereby lay claim to the Diocese of South Carolina’s property.

So ECUSA will never be able to dissolve unilaterally its relations with the Diocese of South Carolina. But the Diocese itself, as we just saw, is entirely free to withdraw its accession to ECUSA’s Constitution and Canons at any time. The question which will face the delegates elected to its Convention is just that. Should it follow in the steps of the former Episcopal (now Anglican) Diocese of San Joaquin, and the Diocese of Fort Worth, and the Diocese of Quincy?

Based on the experience of those dioceses, to follow them would be to take a path that leads certainly to litigation, given the needs of the current ECUSA leadership to justify their megalomania, according to which entire dioceses are imagined to dedicate — irrevocably. — their property to the national Church upon joining it. Withdrawal (today, unlike the case of 1861) thus leads to a lawsuit, which in South Carolina’s case will be led by the all-too-willing minions of dissident groups like the Episcopal Forum, who distinctly yearn to become tools in the hands of 815’s megalomaniacs.

Given the decision of the South Carolina Supreme Court in the All Saints Waccamaw case, however, any such lawsuit would be doomed to failure. There is simply no valid claim, under that decision, of an implied trust on all the diocesan assets which the national Church could successfully assert in the South Carolina courts.

Of course, that does not mean that 815 will not wish to sue, or that it will be unable to find stooges ready, willing and able to claim to act on its behalf. But the sole purpose of such a lawsuit would be harassment, given that it will be dead out of the starting chute. (And thus it would be still more an unconscionable waste of the national Church’s assets.)

The Episcopal Forum in South Carolina already has attorneys who have told it that the All Saints Waccamaw opinion is confined to its unique facts, even though the Supreme Court’s decision on the per se invalidity of a purportedly universal, but wholly unilateral, trust in favor of ECUSA was rendered in language that applied across the board, as a matter of law, and not just confined to the facts of the case.

So be it — that is what lawyers do: they collect fees to invent arguments, whether successful or not. (That is why most such attorneys insist on being paid in advance.) And that is likewise what their unquestioning clients will in this case be constrained to do: to pay them to argue a losing cause, until their arguments are utterly shot down, as All Saints Waccamaw requires. That is the plain price of a blinded refusal to acknowledge what the State’s highest court actually said.

The decisions of the delegates to the Convention of the Diocese of South Carolina, therefore, should not be based upon what ECUSA, or the Episcopal Forum (or their ilk), may threaten will happen. We know what will happen; it is as fated as the Ides of March were fated. The fact remains, however, that such a “fate” is no real deterrent to anything that the convention of the Diocese of South Carolina should eventually choose to do.

The real question facing such a diocesan convention will be where to pledge their allegiance, if not to ECUSA. And by posing that question, I do not mean to exclude an answer that simply declines to separate, in any final way, from ECUSA itself. It is surely a choice that South Carolina may yet decide, under its Bishop, to remain (as he pledged) in ECUSA, but to dissent from its heretical ways, and to maintain a steadfast witness to “the faith once delivered to us by the saints.”

In a further installment, therefore, I propose to examine just what the advantages would be for the Diocese of South Carolina if it decided to remain as a true witness in ECUSA, versus its making a decision to withdraw. As always, I invite comments from those who will be most affected by any such decision.

Allan S. Haley is a cradle Episcopalian who grew up worshipping with the 1928 BCP. He still attends the same church in Nevada City, California in which he was baptized, and serves now as its Chancellor. A practicing attorney, graduate of Harvard U and Harvard Law, who specializes in property law and litigation, he has also become an expert in Episcopal Church canon law, and objects strongly to the canonical abuses committed under the current Presiding Bishop. This article appeared at Virtue Online and is reprinted with their permission.