November 5, 2006

Diocesan Divorce Court?

The Diocese of Pittsburgh has, by a recent action of its Diocesan Convention, withdrawn its consent to being part of Province III of the Episcopal Church. Citing Article VII of the Constitution, which states that no Diocese shall be included in a Province without its consent, it would seem the case is clear, and that Canon I.9.1 assigning Pittsburgh its provincial status is nullified.

I believe this view rests on faulty reasoning. The Chancellor of Pittsburgh raises the issue of the Constitution’s ambiguity, but I believe in doing so he defeats his own claims. For Article VII is only ambiguous to the extent it is capable of being misunderstood, by removing it from its legal and historical context, as has the Chancellor. He claims that the consent of the Diocese to inclusion in a Province is not simply an initial consent at the time of inclusion, but a continued consent for as long as inclusion continues. Had the Constitution been intended to refer only to the initial consent given at the creation of the Provinces, or the initial inclusion of Dioceses within them, he claims that the framers could have stipulated consent “at the time of admission” as part of the Article.

However, what the Chancellor ignores is that such clarifying language was not necessary to convey such a meaning, since at the time of the adoption of Article VII in 1901 initial inclusion was the only meaning possible, since the Provinces did not yet exist.

This Article was the enabling resolution that gave the General Convention the authority to create a provincial structure, and it took a dozen years to realize, when the General Convention finally (in 1913) adopted the Canon actually uniting all of the Dioceses of the Church into Provinces, stating that “the Dioceses of this Church shall be and are hereby united into Provinces” subject to the very proviso of the Constitution upon which the Chancellor makes his incorrect claim — that the diocese will remain in some state of perpetual consent — but which rather ensures that the dioceses will have consented to this action. It was not a question, as the historical record shows, of Dioceses wishing to remain unattached to any Province, but rather having the right to determine which Province they would consent to join. General Convention constituted the Provinces via a Canon — not via the Constitution, which had ceded that power to the General Convention.

Finally, any possible ambiguity about whether to be included means to become or remain a part of a Province is resolved by the legal use of the word consent. For “in law,” consent signifies not a kind of general or ongoing willingness, but “deliberate concurrence in the terms of a contract or agreement, of such nature as to bind the party consenting.”* And, as I addressed earlier with the word impediment, in the context of a legal document (such as the Constitution) words must be taken in their legal sense.

An analogy may be helpful: as with marriage, consent precedes union, and depends upon it. No one would suggest that the legal principle “no one shall be married without their consent” means anything other than that consent is required for and prior to the initiation of the marriage, and once consent is given, and the marriage rite performed, it takes more than a mere change of mind or heart — or unwillingness to abide by the consent once given — formally to end the marriage.

In the present case, it would appear the only body capable of severing the connection of the Diocese with the Province is the General Convention, who has the power to amend the Canon in question — as they have had cause to do over the years with the creation of new Dioceses and Provinces. If Pittsburgh wants a divorce — and if such a thing is possible (other than transferring Pittsburgh to some other Province to which it consents to be joined) it can only be granted by the very General Convention from which the Diocese seems so eager to distance itself.

— Tobias Haller BSG


* Webster’s New 20th Century Dictionary, Unabridged, Second Edition.

3 comments:

Anonymous said...

I agree with your analysis. At the same time, there is nothing to require Pittsburgh to participate functionally in the activities of Province III. Here in Province VII the participation of at least the bishops of Dallas and Fort Worth have been minimal at least. They haven't asked for an institutional redefinition, but they haven't been around much, either.

The letter from the Chancellor of Pittsburgh seems oriented more toward justifying a proposed 10th province. However, the logic for this is just as much a stretch. The action to create such a structure would have to come from the General Convention. Yet, it is the authority of General Convention that Pittsburgh seems so eager to reject.

Sadly, it all seems a case of applying logical tools to faulty premises.

Tobias said...

It came to mind that the marriage analogy also has another level, in that to "be married" has the same (spurious) ambiguity as "be included" -- that is, it is lexically possible to understand "be married" as referring not only to the rite of marriage but to the state of marriage, but semantically impossible to take it that way in the context of "no one shall be married without his or her consent."

Tobias said...

And one more thing...

The Chancellor's alleged conflict between Article VII and Canon I.9.1 vanishes when one understands that the Article is only about the creation of provinces, not their continued existence. This is perfectly clear via the use of the word "into" --- "Dioceses may be united into Provinces... provided however that no Diocese shall be included in a Province without its own consent." The plain sense meaning, which is also the legal meaning (given the contractual nature of consent) is that prior to dioceses being united into provinces, consent must be given. The use of the word "into" was necessary since the Article was added to the Constitution prior to the creation of any internal provinces, and was added solely to provide the possibility for that long debated development.