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More Thoughts on Provinces in
The Episcopal Church
Lionel E. Deimel
November 15, 2006


As expected, the Diocese of Pittsburgh passed a resolution at its November 3–4 annual convention asking for “aternative Primatial oversight” and calling for “withdrawal” of its consent to be included in Province III. (See “What Has the Diocese of Pittsburgh Done This Time?” for background on the latest developments.) Just before the convention, the diocese released one of its chancellor’s now famous opinions, telling the bishop that this is all on the up and up. Robert G. Devlin, in his letter of October 30, makes a fair case for removing the Diocese of Pittsburgh from Province III of The Episcopal Church. His arguments are, I think, wrongheaded, but he has done as good a job for his client as one could reasonably expect.

Since Mr. Devlin almost certainly studied my report on the matter (“An Appraisal of the Diocese of Pittsburgh’s ‘Withdrawal’ of Consent to Inclusion in Province III,” hereafter referred to as “Appraisal”), it seems only fair that I should have the opportunity to comment on his arguments. He offers four of them.

The Chancellor’s Case

The chancellor’s first argument is pretty straightforward. Recall that Article VII of The Episcopal Church’s constitution reads as follows:

Dioceses may be united into Provinces in such manner, under such conditions, and with such powers, as shall be provided by Canon of the General Convention; Provided, however, that no Diocese shall be included in a Province without its own consent. [There is some question as to whether “however” should be italicized, but that is of little consequence here. This text is taken from the Web site of Church Publishing Incorporated.]

Mr. Devlin argues that nothing suggests that the restriction regarding consent “should be read in any way other than its literal sense.” It is unclear what readings are being dismissed here, as I know of no one who has offered a metaphorical, symbolic, mythological, or other sense in which one might read Article VII. I am quite content, therefore, to stipulate that Article VII means just what it says.

Province III logo: in need of revision?
What, however, does Article VII say? There seems to be some ambiguity involving the word “included.” (As we shall see later, “consent” is also subject to misunderstanding.) As I pointed out in “Appraisal,” the restriction of Article VII could be about a diocese’s being placed into a province, its remaining in a province to which it had earlier been assigned, or both. Mr. Devlin’s first point, therefore, is unhelpful unless we can disambiguate Article VII. We will return to this presently.

Next, the chancellor argues that Canon I.9.1, which assigns dioceses to provinces, cannot alter the meaning of Article VII, since canons are subordinate to the constitution. This point seems both commonsensical and unassailable. Moreover, he continues, this canon explicitly incorporates—and, therefore, underscores—the restriction of Article VII. (Section 1 of the canon begins: “Subject to the proviso in Article VII of the Constitution.”) This begs the question, however, because of the aforementioned ambiguity in the constitution. Surely, the wording of Canon I.9.1 is intended to indicate that its writers are paying attention—it was enacted 15 years after Article VII was first proposed—but the wording does not really clarify just what the “proviso” referred to was taken to mean.

In his next argument, Mr. Devlin finally acknowledges the ambiguity problem, asserting that it has been suggested that Canon I.9.1 “is intended as a clarification.” I know of no one who has made this precise argument, and I certainly want to assert that I have not. If the General Convention believed Article VII to be ambiguous, it should have modified it, the chancellor asserts. If “included” was intended to refer to initial assignments to provinces, the words “at the time of assignment” or some such should have, but were not, included. Would that the General Convention had used such language! Its failure to do so, however, is rather more likely to be evidence that no one imagined Mr. Devlin’s interpretation at the time, than to be evidence that both initial and continued assignment to a province were intended. Undeterred, the chancellor proceeds to observe that nothing in the constitution or canons requires provincial membership. Since the time of consent is unspecified, and since membership is not required—I acknowledge that this is the case, by the way, although there does seem to be an expectation that domestic dioceses will always belong to provinces—the chancellor concludes that a diocese can withdraw its consent at any time.

Mr. Devlin’s fourth and final argument concerns appeals from ecclesiastical trials. Appeals from a diocese are heard at the provincial level, and the chancellor claims to have been asked how this would work were the diocese to become extra-provincial. Citing Canon IV.4.37, he says that such appeals would be handled by the geographically closest province or by the one thought most appropriate by the Presiding Bishop. That the canons contain such a provision acknowledges that a diocese can be extra-provincial; I noted this in “Appraisal.” Mr. Devlin has successfully knocked down his straw man. The question, of course, is not whether a diocese can be extra-provincial, but how it might obtain that state through its own efforts after being a member of a province. The canons offer no way to effect this other than through a canonical change, which can only be made by the General Convention.

A Reëvaluation

Has the chancellor made his case? I think not. His final point is meaningless, since no one has argued that dioceses cannot be extra-provincial, only that no domestic diocese has been such since provinces were created. Dioceses outside the United States have certainly been extra-provincial at times, but this does not speak to whether a diocese can “withdraw consent” for its provincial membership.

The argument that the General Convention would have written the rules differently had it meant consent to refer only to the initial assignment of dioceses to provinces relies on evidence of what people did not do and on the assumption that they recognized options that we have no evidence they were ever aware of. It is more straightforward to assume that it was obvious to everyone that the consent referred to was initial, and not continuing consent.

The case for this simpler theory is strong, for several reasons. (I am indebted to Tobias Haller BSG for some of what follows. See his excellent essay in response to the action of the Pittsburgh convention, “Diocesan Divorce Court?,” on his blog.) First, Article VII merely authorizes the General Convention to create provinces, a power it used only years later. When the article was written, the only consent that could be given was the consent to be assigned to one province, as opposed to another. What makes this idea compelling is the wording earlier in Article VII: “Dioceses may be united into Provinces” [emphasis added]. Article VII does not purport to deal with what happens after dioceses are so united. Details of how a provincial system is to be implemented are to be dealt with by canon.

An even stronger argument that only initial acquiescence is intended in the constitution concerns the meaning of “consent” as it is generally used in a legal context. In such a context—the constitution of a church surely qualifies—“consent” generally refers to an event in which acquiescence is expressed, not to some ongoing condition of permission-giving. (In many cases, the consent is even implicit.) Giving informed consent for an operation, for example, is done once, and it acknowledges that there are risks involved that the patient willingly assumes. One cannot “withdraw” consent if the outcome of the operation is not to one’s liking. An even more compelling example is giving of consent to be married. (This sounds a good deal like giving consent for inclusion.) Here, consent precedes marriage, but one is not allowed, at some later time, simply to “withdraw” one’s consent to be married because things aren’t working out well. (Technically, there are two different meanings to “married” here, but this is completely analogous to the two meanings of “included” that might be intended in the constitution.)

Let us now revisit the ambiguity of Article VII and its relation to the canons, on the assumption that some readers might still be unconvinced that Mr. Devlin is wrong in his interpretation. I did not suggest in “Appraisal” that canons can alter the meaning of the constitution. Effectively, however, I argued that the canons implementing provinces provide insight into what people understood Article VII to mean. No canon even hints that a diocese has the right to withdraw its permission to be in its province. Using Mr. Devlin’s own rhetorical methods, can we not say that this is evidence that such a prerogative was not assumed to belong to dioceses, since, were it otherwise, one would reasonably expect that the canons implementing the provincial system would have both acknowledged it and provided a standard procedure by which the right was to be exercised? (The canons specify an elaborate procedure by which a province can effect a transfer from one province to another, although this is a relatively recent addition. Would not one expect to find a description in the canons for unilateral removal from a province—a much more radical action—were such an action considered lawful?) Pittsburgh’s chancellor claims that nothing in the legislative record rules out his interpretation, but he has provided no evidence from the legislative record that his interpretation was even imagined when Article VII was first proposed in 1888, when it was finally approved in 1901, or at any later time before Pittsburgh decided that it no longer liked being part of The Episcopal Church.

Two additional arguments may be raised against Pittsburgh’s understanding of Article VII. The first is very simple, Why would the church want to allow a diocese to withdraw from a province at will? If provinces are to be useful, they need to have, if not permanence, than at least some degree of stability. Allowing a diocese to pull out on a whim seems counterproductive, perhaps even stupid. Since the General Convention is populated by reasonably smart people, it is likely that bishops and deputies realized this. (In defense of the chancellor, I should say that, implicit in his analysis, is the notion, dreamed up by the Diocese of Pittsburgh, that dioceses are members, not integral parts, of The Episcopal Church. Such a notion leads one to believe that rights not given to the General Convention are reserved to dioceses. Demolishing this cockamamie idea will need to be the subject of another essay.)

Finally, the fact that Mr. Devlin’s take on Article VII has strange and undesirable consequences argues against it. To see this, assume that Pittsburgh indeed had a right to do what it did. This would mean that the act of withdrawal, though legal, resulted in Pittsburgh’s no longer being in Province III. But Canon I.9.1 asserts that Pittsburgh is in Province III. The status of Pittsburgh now is in violation of a canon of the church. But this must mean that those who voted for the change, including the Bishop of Pittsburgh, have, by their actions, violated the canons and are thereby subject to presentment. Surely, such an argument suggests that our premise, namely that a diocese can withdraw from its province at will, must be in error.

In the end, it must be said that Mr. Devlin’s case is weak indeed. The question now is whether The Episcopal Church will yet again ignore the flagrant disregard for canon law exhibited by the Diocese of Pittsburgh, or whether it will insist, finally, that everyone in The Episcopal Church play by the same agreed-upon rules. Those who do not like the rules are free to leave the church, but the Diocese of Pittsburgh, being an integral part of The Episcopal Church, has no such ability.
 

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