I attended a NNECA conference in Boston a few years ago.  This was before we had the problem of dioceses leaving TEC.  One of the conference speakers was on the legal staff of the National Church and is now very much involved in litigation for TEC. As I remember the substance of her argument it went as follows:

In the Constitution of the USA a compact was made with religious organizations which treated them in the same way as treaties with sovereign bodies like the Native American groups. In exchange for internal “sovereignty” the United States agreed not to invade the constitutional integrity of religious bodies. The “churches” abandoned any claims to “establishment” in return for complete liberty to order and govern their own affairs.

This wall of separation, the speaker suggested, was being dismantled by religious bodies which either condoned or permitted its “members” to violate state law, or by religious bodies inviting the secular arm to adjudicate its own affairs.  In the first category were cases where the churches seemed to protect its members from civil law. In such cases the State was obliged to enter into the area of ecclesiastical discipline and to force the churches to give restitution to victims of abuse in one form or another.

In the second example churches were seeking to discipline its own “members” by recourse to secular courts, judging that such churches were unable, by themselves, to enforce their own discipline or protect their own claimed property.

Whatever the matter at hand, the churches invited the State into their own sovereignty and thereby ceded such authority to the secular courts. In short such ecclesial bodies were acting as if they were in some respect “established” or subject to, or open to the State to resolve their own difficulties.

The speaker suggested that every appeal to the secular arm to provide adjudication eroded the separation of Church and State. What may seem opportune at a moment might well set a precedent for the future. It also illustrated an incapacity on the part of the “Church” to manage its own affairs without the help of the secular arm.

I have now to affirm once again my opposition to schism as a method of affording protection to those whose beliefs and ideals were normal in the recent past. The unwillingness of our church to adopt unusual methods to afford safe haven to a disenfranchised and impotent minority, because TEC is governed by a “winner take all” form of governance is in itself a scandal. A simple expedient of the English “flying bishops” idea, adopted by a church which has a real claim to historic and unique territorial diocesan integrity, a system adopted to preserve unity, in that it was rejected by our “denominational” church, only underlines the stubborn and “conservative” policy of our majoritarian leadership. The simple adoption of protective measures to afford a safe haven for those who cannot in conscience submit to current TEC policies would have trumped schismatic schemes which have led to our present divisions. Our church would be lauded for its tolerance and comprehension while free to pursue the ideals of the majority. What would have emerged would have been “comprehension” tailored to years of conflict.

Instead TEC has asked the secular State by its courts to adjudicate not only property disputes but explicitly in is pleadings the doctrinal and structural ethos of what it means to be an Anglican in America.

If TEC wins its battles it will have given itself security as an ecclesial body intolerant of dissent and the price will be a surrender of its autonomy to the secular State. The wall of separation will have been breached. If the dissidents succeed the ability of TEC to govern itself autonomously will have been undermined by action of the State.

Perhaps it is not too late for the powers that be to count the cost of recourse to the State to settle its affairs and to grant to traditionalists dioceses and parishes a measure of protection, demonstrating a pastoral care for all its members and once again avowing its commitment to Anglican comprehension. Traditionalists in TEC need more than nice words suggesting the value they are to our breadth and unity. They need action and they need it now.

A simple and suitable action would be for the Executive Council to propose to the next General Convention a proposal permitting Dioceses and parishes to affirm the Covenant and to create a form of DEPO which permits diocesan bishop the right to offer secure and untrammeled temporary “jurisdiction” to parishes in “progressive” dioceses whose vestries adopt precise resolutions seeking such oversight. Bishops should be “comprehensive” enough to permit such a temporary relinquishment of jurisdiction in the cause of unity and concord.

Are the anachronistic claims to territorial jurisdiction on the part of diocesan bishops more important than the creation of extra diocesan structures within our unity?

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