After Convention November, 2008
This is intended to be a very brief explanation of the status of the Episcopal Diocese of Fort Worth ("EDFW") and those parishes and parishioners who were members of the EDFW prior to and immediately after the Diocesan Convention, November, 2008 ("The Convention"). This explanation is not intended to be a legal explanation of all the nuances and fine points of the law concerning this subject, but merely an explanation that will hopefully educate those who were affected by the actions taken at The Convention.
In order to understand any of what follows, it is first necessary to understand the legal entity that is the EDFW. It is a nonprofit corporation duly organized and registered with the Texas Secretary of State’s Corporate Filings Office in Austin. The filing information is as follows:
Name: Corporation of the Episcopal Diocese of Fort Worth
Date Filed: February 28, 1983
Charter. No.: 64493201
Registered Agent: Jack Leo Iker
Registered Office: 2900 Alemeda Street
Fort Worth, Texas 76108-5960
Status: Domestic Nonprofit Corporation
Tax ID: 17518551332
As a legally constituted corporation, the EDFW functions as any other nonprofit corporation functions, with all the rights and privileges attached to such a corporation. As such, it is free to enter into whatever associations it may choose. It is also free to disassociate itself from any association it may have once made. No nonprofit corporation, or any other corporation or person, is required to remain in association with any organization with which it does not wish to remain. There is no irrevocable association law. The corporation is governed by its governing documents, which, in the case of EDFW, in addition to its Charter and Bylaws, are its Constitution and Canons. No other governing documents may have legal preference over these. According to Article 2, Constitution of the Episcopal Diocese of Fort Worth,("the Constitution") the legislation of the diocese is entrusted to:
". . . a Convention to consist as follows: First, of the Bishop, when there be one; of the Bishop Coadjutor, when there be one; of the Suffragan Bishops, Assistant Bishops, if there be any; Second, of all priests canonically resident in the Diocese, and not under Ecclesiastical discipline, and who have not in contemplation of removal from this Diocese, applied for their Letters Dimissory; and Third, of Lay Delegates chosen by and representing their Congregations. Lay Delegates and their Alternates shall be elected by the Congregations of their respective Parishes and Missions at the Annual Parish Meeting and shall hold office until their successors are elected. The Rectors of Parishes and Vicars of Missions shall have authority to fill such vacancies as may occur from the list of Alternate Lay Delegates between the time of such election and any meetings of the Convention. Lay Delegates shall be confirmed communicants in good standing, at least 18 years of age."
Status After The Convention
By law, any "legislation" passed by the duly chosen representative members of the EDFW at convention, held according to the Constitution, is the act of the EDFW and all of its constituent members, i.e. parishes and members of parishes. Some rectors and lay leaders within EDFW who voted at the Diocesan Convention in November, 2008, against the proposed changes to the Constitution and Canons of EDFW at that convention are making the mistake of declaring that because they voted "No" the changes do not effect them. They mistakenly believe they are unchanged by the vote of almost 80% of the duly chosen delegates to that convention.
The parishes that were part of the EDFW prior to The Convention sent their duly appointed clergy and lay delegates to The Convention, just as they had always done, and those delegates voted at The Convention on the propositions properly placed before them, just as they had always done. Unlike previous conventions, however, some parishes (or rather rectors and vestry members) went away from this convention convinced that what happened at this convention did not apply to them, as all previous actions at previous conventions had applied. For some reason, these rectors and vestry members took the position that they were no longer a part of what took place, nor were they a part of the diocese that had just held its convention. The question then remains, what was the defining moment that made such a result possible? How did those parishes walk into that convention a part of it and walk out not a part of it?
To illustrate the absurdity of this position, consider the recent national elections that were held in the US. First, there were the primaries where voters voted for their choice for the nominee of their party. John McCain won enough votes in the Republican primaries to be the nominee of that party, and Barack Obama won enough votes in the Democratic primaries to be the nominee of that party. Then there was the general election where voters voted for President and Vice President. Obama won and McCain lost. To apply the reasoning of those who "lost" the election at the Diocesan Convention in November, 2008, if I did not vote for Obama for President, then the election of the majority of voters in America doesn’t affect me. I can still claim to be under President Bush, or even worse that I am under John McCain. To make such a claim is absurd.
So it is absurd for those who voted "No" at the Diocesan Convention in November, 2008, to claim that they are still in TEC, when the vote of almost 80% of the delegates voted that the EDFW leave TEC. Some will say, "But we didn’t vote to leave, so why should we have to be the ones to start a new diocese? Shouldn’t you who voted to leave be the ones to start a new diocese?" Since the only diocese with any standing is the EDFW, and since the EDFW has left TEC, the only choice for those who wish to remain in TEC is for them to take some action to accomplish that. It is not possible to remain in place and remain in TEC, because the EDFW, to which they all belong at present, is no longer in TEC. They must separate from the EDFW and go their own way. The Canons of the EDFW were amended to provide for just such action by those who wish to separate from the EDFW.
The crux of the problem seems to be that some have believed the continual pronouncements from TEC that parishes and dioceses cannot leave TEC, only people can. From this premise follows all the conflict in the EDFW. It is important to check the premise of any argument in order to arrive at a correct result. If the premise is wrong, the result will be wrong. Each time TEC is challenged to defend their position concerning who can leave TEC, they are silent. Their only response is that the Constitutions and Canons of TEC do not allow a diocese to leave TEC. In fact, there is nothing in the Constitutions and Canons of TEC that even address a diocese leaving TEC, let alone prohibiting such action. The rule of law is that any act that is not prohibited in the governing document is, therefore, allowed.
If the founders of PECUSA had intended to prohibit dioceses from leaving PECUSA, they could have placed such a prohibition in the Constitution and Canons of PECUSA, but they did not. In the intervening 200 years, if the Bishops and clergy and lay delegates to General Convention had desired to place such a prohibition in the Constitution and Canons of PECUSA, ECUSA, or TEC, they could have amended those documents. The have not. It is not as if this has never been an issue. During the Civil War, the dioceses of the Confederate States left PECUSA, and after the war, they returned to PECUSA. No question was raised about whether they could leave PECUSA. The precedent has clearly been established that a diocese can leave TEC. There is no issue now, except in the mind of the Presiding Bishop and of her supporters, about diocese leaving TEC. So far, no court has been asked to settle this question, so that remains to be resolved, but the law appears to be on the side of the diocese in this conflict.
What About The Bishop?
Some rectors have told their parishes that they no longer have a bishop in the EDFW and that they will be having a convention in February to elect a new bishop. The Restated Articles of Incorporation of the EDFW set forth the process for selecting a bishop.
"In the event of a dispute or challenge regarding the identity of the Bishop of the body now known as the Episcopal Diocese of Fort Worth, the elected Trustees shall have the sole authority to determine the identity and the authority of the Bishop, as provided by the Bylaws of the Corporation, for the purposes of these Amended and Restated Articles of Incorporation." (Amended and Restated Articles of Incorporation, Article VI.)
Since the Bishop of the EDFW is still Bp. Iker, there is no vacancy to be filled, but should such vacancy exist, it is clear that the Trustees of the Corporation of the Episcopal Diocese of Fort Worth have the "sole authority to determine the identity and the authority of the Bishop" and no one else. Therefore, those rectors and parishioners who believe they can simply call a convention and elect or appoint a bishop clearly do not know the rules by which this must be accomplished. Certainly, the Presiding Bishop of TEC has no authority to convene such a convention, as she proposed to do in Fort Worth on February 7, 2009.
What About the Property?
The issue of the title to the property of the EDFW is one of continual conjecture and controversy. It need not be. The title to the real property, i.e. the parish buildings and grounds, was vested in the Corporation of the Diocese of Fort Worth by court order in the case of the Episcopal Diocese of Dallas, et al. v. Jim Mattox, Cause No. 84-8573, the 95th District Court of Dallas County, Texas, (1984) in which the court entered a judgment whereby the title of all property standing in the name of the Bishops of the Episcopal Diocese of Dallas and located within the present boundaries of the Episcopal Diocese of Fort Worth were vested in the name of the Corporation of the Episcopal Diocese of Fort Worth. Since a court of competent jurisdiction has already ruled on the title to the property, the EDFW is in a better position to withstand a challenge by TEC to the property of the EDFW.
The EDFW is still alive and well. It is a legal entity with a life of its own, separate and apart from TEC. There is nothing TEC can do that will have any legal effect on the EDFW. Those who voted at The Convention for the EDFW to leave TEC can thank God that He placed in positions of authority wise and learned leaders who were responsible for the formation of the EDFW in the beginning, and who have guided it through the troubled seas of recent times. From a legal perspective, it would appear the EDFW is on very solid ground. From a pastoral prospective it would appear the EDFW is on solid biblical grounds in how it proposes to treat those within the EDFW who disagree with leaving TEC. Those members of the EDFW who wish to remain in TEC must now take some affirmative action to go their separate way from the EDFW. Until they take such action, they remain part of the EDFW.