Private Governance in Pittsburgh

The world of governance is never divided neatly into public and private.  This post has nothing to do with technology (though there is a property angle).  Instead it illustrates that the perils and pitfalls of uncritically accepting the authority of apparently autonomous self-governing communities — something that science and technology scholars are acutely aware of when it comes to online groups and digital technologies — are alive and well in off-line, analog, and supposedly old-fashioned contexts.  Along the way, there is some talk of things and objects, which are among my favorite subjects.  As to all of the above, what’s in a name?

Who or what is the Episcopal Diocese of Pittsburgh?

My interest in the Episcopal Church is mostly historical.  I grew up in the church but left it may years ago, both physically and spiritually.  Still, I take notice.  I grew up in a progressive congregation in California, and when I moved to Pittsburgh I was surprised to learn that the diocese here is among the most theologically conservative in the national church.  (Now that I know much more about Pittsburgh and the history of Episcopalianism here, it’s not so surprising!)  Over the years, divisions within the diocese got so pronounced that “realignment” was proposed, and earlier this month a vote was taken.  A majority of Pittsburgh Episcopal parishes voted to secede from the Episcopal Church of the USA and to join the Anglican Province of the Southern Cone in South America.  A minority remain in the Episcopal Church of the USA.  Both the Anglican Province and the Episcopal Church are part of the worldwide Anglican Communion, which has suffered its own share of theological stress in recent years.

The fun, so to speak, has only begun.  Episcopal Presiding Bishop Katharine Jefferts Schori has recognized the minority as the “rightful Standing Committee of the Episcopal Diocese of Pittsburgh,” which governs in the absence of a bishop.  (This Standing Committee succeeds an existing Standing Committee, which was governing because Pittsburgh’s Episcopal bishop, Robert Duncan, a leader of the conservative movement and chief proponent of realignment, was removed from office in September 2008 by the House of Bishops of the Episcopal Church.)  This group calls itself “the Episcopal Diocese of Pittsburgh” and has a website under that name at http://www.episcopalpgh.org/.

The realigned group, however, also calls itself the Episcopal Diocese of Pittsburgh and has a website under that name at http://www.pitanglican.org/.  Organizationally and theologically, it appears that the minority “stay behind” group are Episcopalians and the majority “realigning” group are Anglicans.  But the diocesan names are the same.

Of course, property ownership is where the private governance rubber meets the public governance road, so to speak.  The naming question turns out to be more than a matter of labels.  Back in 2005, there was litigation in a local state court between the diocese and a local parish.  The parish sued the diocese to prevent the transfer of diocesan property to local parishes.  Apparently, the threat of a transfer was perceived as a prelude to secession or realignment.  The case was settled; an order was signed by the presiding judge.  I haven’t seen the order, but press reports suggest that it provides that in the event of realignment, diocesan property will be subject to a fair and equitable distribution process.  There is a presumption, however, that diocesan property belongs to the Episcopal Diocese of Pittsburgh.  Parishes that are not part of the Diocese have to apply for a distribution.

Thus, from today’s Pittsburgh Post-Gazette:

This week the Episcopal Diocese of Pittsburgh (Anglican) wrote to churches aligned with the Episcopal Diocese of Pittsburgh, telling them to apply to the Anglican diocese for their property.

That’s backward, said the Rev. James Simons, president of the Standing Committee governing the Episcopal diocese until it elects an interim bishop.

“It’s a bit like Alice in Wonderland,” he said of the Anglican claim to be the diocese named in the court stipulation.

“That stipulation specifically says that it’s about parishes wanting to leave ‘the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America,'” he said.

“By their own decision, they are no longer a part of the Episcopal Church of the United States, which is what the stipulation is about.”

But Robert Devlin, chancellor of the Anglican diocese and author of the letter, said the language in the stipulation refers to the diocese that signed it in 2005, meaning the diocese that voted to join the Southern Cone.

“The entity that adopted the resolutions [to realign] on Saturday is the Episcopal Diocese of Pittsburgh,” he said. “All of those parishes are part of the diocese. We are not saying they have to stay with us. We are pointing out that the stipulation … requires every parish in the diocese that wants to disaffiliate to apply to the diocese.”

The parties will no doubt be back in court.  Who or what is “the” Episcopal Diocese of Pittsburgh?  Where does the authority of that name come from?  It may come from the parties’ agreement, if there is one.  Contracts scholars will recognize the affinity of the case to the classic Raffles v. Wichelhaus case (which ship Peerless is “the” ship Peerless?) and to the more recent and more entertaining “chicken” case, Frigaliment Importing Co v BNS International Sales Corp. (“The issue is, what is chicken?”).  Alternatively, it may come from the marketplace.  Trademark scholars will wonder whether there is any meaningful risk of confusion if two groups in the same “market,” so to speak, represent themselves as the same thing.  That question depends in part on priority of use.  Who can claim to be the Episcopal Diocese of Pittsburgh – first?  On the merits, my guess is that the right analogies come from cases involving bands that break up.  Who gets to use the name of the band when the former members are each playing different gigs?  The name usually belongs to the band itself, that is to players who control the quality of the band’s music, and not to individual members who leave, because it’s the band itself that embodies the goodwill that consumers associate with the name.  Robi v. Reed in the Ninth Circuit is representative of the law here.  More broadly, the situation offers another example of the complexity of debates over the virtues of the liberal political tradition that exalts communitarian self-governance.  Those communities cannot be completely dis-entangled from the interests of the state, of adjacent and overlapping communities, and even from the deceptively simple question of language and names.

When I’m tempted to cite and distinguish Saul Kripke, it’s clearly time to end the post.  Meanwhile, the Episcopalian and Anglican blogosphere is abuzz with thoughtful and often sad commentary on the whole affair.

2 thoughts on “Private Governance in Pittsburgh

  1. The stipulation, respecting diocesan property, says the following: “Property,.whether real or personal (hereinafter “Property”), held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter “Diocese”) for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held or administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. For purposes of this paragraph, Property as to which title is legitimately held in the name of a parish of the Diocese shall not be deemed Property held or administered by the Diocese.” (See http://deimel.org/commentary/b_pages/stipulation.pdf.)

    The situation is, as suggested in this essay, muddled. It is as if the Commonwealth of Pennsylvania had voted to leave the United States and to join, say Brazil. If the governor and all the members of the General Assembly who had voted for the measure claim to be citizens of Brazil, where is Pennsylvania and who is running it? The answer, of course, is that Pennsylvania is in the United States because the state government was not competent to do what it claims to have done. I assume that the lieutenant governor would be running the state.

    In the diocese, the convention passed illegal legislation, and 7 of 8 members of the Standing Committee (which was running the diocese) claimed to have defected to the Southern Cone. Therefore, the eighth member of the Standing Committee, who remained loyal to The Episcopal Church, like the lieutenant governor in my example, must be the legitimate authority running the (real) Episcopal Diocese of Pittsburgh in The Episcopal Church.

    Case closed.

    The “realigners” have not really formed a diocese and, by its own canons, cannot have been admitted to the Anglican Province of the Southern Cone. They are merely arrogant thieves who have no right to the assets they currently control.

  2. Lionel has oversimplified the case to support his point of view.

    In the 400+ year old Anglican communion, the bishop (and thus the diocese) is the key institutional actor. Unlike the Roman Catholic Church, there is no strong central authority. And while the national leader (in the US, the Presiding Bishop) has the authority to administer the national HQ, he/she has no canonical authority to determine what happens in a given diocese or parish.

    Historically, American church worship (and the law’s recognition of same) has been bottom-up, in which individual parishes organize, buy land, and then form a parish. (The RCC and a few other denominations are notable exceptions). Some may get loans from a church-affiliated entity, but those loans must be paid off after a fixed period of time.

    So the question is, how is the property titled? The land is normally titled by the parish or by the diocese, at least until next year when the PB plans to change the law to title all property to the national church.

    Finally, the Episcopal Church in the United State of America (ECUSA) was formed in the 18th century as a democratic reaction to the hierarchical, top-down, Church of England. Everyone and every issue was decided by a bottom-up process of voting. Bishop Duncan was selected by a vote of his diocese, not by the national church.

    Having a parish or diocese vote to secede is consistent with that. So the analogy is not Brazil, but the Civil War.

    ECUSA is going through a Civil War, and the one nearly 150 years ago was resolved by rifles, not by press releases or lawsuits.

    If a court of competent jurisdiction determines that the Diocese (as a legal entity) owns title to the parish land within its territory, it doesn’t matter what the PB or the ECUSA leadership think. The national church will certainly want to form a new franchise within the territory, but (absent title to the land) it lacks authority to do anything to the former franchisees.

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