In the opinion of a lawyer:
September 2008

Is The Episcopal Church Hierarchical?

 

An important paper analyzing TEC’s Constitution has been released by the Anglican Communion Institute. Its title is “Is The Episcopal Church Hierarchical?” Its purpose, stated in the opening section, is to examine “TEC’s status under the law.”

The author is Mark McCall, a lawyer who spent his entire career at Sullivan & Cromwell, one of the world’s pre-eminent law firms. Specializing in international law, McCall had assignments in New York, Washington D.C., London, Paris, and the Hague. At the international tribunal he first represented clients with claims arising from the Iran hostages incident. Again at the Hague, he spent three years as administrator and legal advisor to three judges presiding over a case involving a Persian Gulf state and several European businesses. During a period when he represented a British airline, he advised the British government on international air transportation treaties. He is now retired and living in New England with his wife of 36 years.

The paper is available as an 89-page PDF [see link below] on the ACI Web site. The first of two appendices begins on page 52, and there is a 12-page bibliography, so the main body of the work is not as lengthy as it might first appear, and it is all very readable.

You will be able to get a good grasp of the essential arguments and the source materials by reading the opening section (pages 1-3) and the Conclusion (pages 49-51). McCall’s conclusions include:

  • “the highest authority in TEC is the diocese”

  • “it is duly constituted dioceses, already organized, that accede to union with the General Convention”

  • “The [TEC] constitution specifies the bishop and standing committee as ‘the’ ecclesiastical authority in the diocese. It gives General Convention virtually no control over dioceses, while dioceses collectively control the General Convention.”

  • “There is no provision in TEC’s constitution making General Convention the ‘highest’ or ‘final’ authority”

  • TEC “does not organize dioceses, but merely approves their joining General Convention”

  • “there is no prohibition on a diocese’s revoking its accession to TEC’s constitution and withdrawing from TEC. Pursuant to settled law, in the absence of constitutional provisions to the contrary, members of a religious association can withdraw from membership at any time. ... This is the subject, of course, of pending and threatened litigation, but the undeniable fact is that there is no such prohibition in the TEC constitution.”

  • “this is a constitutional structure that cannot be changed by canon”

  • “in the absence of a specified term, a contract is terminable. In the case of voluntary associations, mere agreement to join does not constitute an agreement to remain. ... Dioceses remain in TEC at their pleasure.”

McCall argues that these constitutional structures were the deliberate choice of those who drafted TEC’s polity, many of whom were founders of our federal government. In section III of the paper, he compares TEC’s constitution with those of five other Churches. His appendices give deeper historical context and provide analysis of a 1959 doctoral dissertation by James Allen Dator, which has been cited for many years as an aid to understanding TEC’s structure.

 
 
 
  Links:    
    Is The Episcopal Church Hierarchical? (PDF)    
    The Anglican Communion Institute    
    TEC Constitution and Canons    
    The Dator Dissertation: Confederal, Federal, or Unitary