In any case, the defendants (Robert Duncan, et al.) argue that the diocesan convention validly withdrew the diocese from The Episcopal Church and that, under those circumstances, the October 14, 2005, stipulation does not require any further action by the court. The defendants’ argument is aggressively and cleverly laid out in the aforementioned brief. I leave it for the reader’s amusement to analyze it.
The plaintiffs have not really offered their argument that the withdrawal from the diocese was not valid—my own argument on the issue can be read here—and they are, no doubt, hoping that doing so will be unnecessary. The Episcopal Church has asserted that a diocese cannot withdraw, but it has not offered its reasoning behind that claim either. There is probably a reluctance to make such an argument, as the church holds that the First Amendment gives it the right to interpret its own rules without interference by the state. In its most recent brief. that argument is made explicitly. (My favorite sentence from that argument: “But even so, it is doubtful whether defendants—persons who have voluntarily removed themselves from The Episcopal Church—have any rightful say about whom or what the Church decides to recognize as its constituent parts, or the officers and members thereof, or how the Church chooses to do so.”)
At the May 27 hearing, the plaintiffs tried to show how both sides were understanding the stipulation when it was signed. Calvary’s attorney, Walter DeForest, testified that he would have made no agreement that did not protect diocesan property for The Episcopal Church and that the possibility of there being two dioceses in Pittsburgh at some point had indeed been considered. The defendants’ attorney, John Lewis, on the other hand, argued that intention makes no difference; the words say what they say, and he obviously thinks they say something different from what the plaintiffs get from it. (There was and is some legal jockeying going on here as to the admissibility of evidence about the context of the stipulation, but Judge James seemed to give the plaintiffs wide latitude. See, for example, the Wikipedia article on the parol evidence rule, which I do not claim to understand.)
Anyway, only paragraph 1 of the stipulation is at issue right now:
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.I want to set aside the legal arguments that have been made to this point and offer my own observation on the stipulation, an observation that is a product of my computer science background. (The logic and linguistics education I received at Georgia Tech comes in handy on unexpected occasions.) I don’t know if my observation will be one that no one else has made, but my framing of it may be new. As an aside, permit me to note that I have always though the stipulation was oddly phrased, but unnatural language is frequently the result of complex negotiations.
A concept that arises in the processing of programming languages for computers is that of binding, the association of identifiers (i.e., variable names) and storage locations where values, which are the “meanings” of identifiers, are stored. Binding may be done early (“static binding”) or late (“dynamic binding”), either before the program is run or during its actual execution. The time of binding can affect the semantics of the program (i.e., what the program actually does). Happily, one need not actually understand binding to understand the point I want to make below.
As explained in court by the chancellor of the Episcopal Church diocese, Andy Roman, “Diocese” is a “defined term” in the stipulation. Everywhere “Diocese” occurs in the stipulation, one should read “Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.” Roman actually went through the exercise of reading paragraph 1 this way at the hearing. In reading the stipulation this way, he was applying late binding to the text; when we read the text now this way, diocesan property must be held by “the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.” Since Duncan’s “diocese” is not in The Episcopal Church, this phrase cannot refer to that entity. In this method of understanding paragraph 1, the defined term is processed through textual substitution.
On the other hand, one might handle “Diocese” using early or static binding. In this way of interpreting the text, the phrase “the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America” is used to identify an entity, the pre-schism diocese headed by Bishop Robert Duncan. “Diocese” is simply a variable name whose value (meaning) is fixed once and for all to be a particular organization. Even if the nature of that organization changes—it could cease to be a part of The Episcopal Church, for example—“Diocese” continues to refer to it. In this interpretation, Duncan’s “diocese” could continue to hold diocesan property post-schism.
Defendants have also focused on the phrase “shall continue to be so held or administered by the Diocese,” arguing that, if withdrawal were proper, only their entity could “continue” doing anything, since the church would have had to create a “new” Episcopal Diocese of Pittsburgh. This is a bit of a problem for the late-binding interpretation of the plaintiffs, but likely not an insurmountable one. Under that scheme, the text now asserts that property shall continue to be held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America. If withdrawal were proper, the property holder must be part of The Episcopal Church, but it need not be the pre-schism diocese. The property can continue to be held by such an entity (i.e., held by such an entity at every moment in time) if The Episcopal Church designates such an entity from the moment of schism, which it has essentially done. That is, the property is always being held by an Episcopal Church diocese, but not always by the same one.
The foregoing is not meant to be a definitive legal argument, but only an interesting way of looking at the dispute about what paragraph 1 of the stipulation means. (It might also be a lesson to anyone who uses defined terms in an agreement: multiple interpretations might be tenable.) One way or another, I believe that the right of the church to interpret its own rules is the concept that eventually will award property to the Episcopal Church’s Diocese of Pittsburgh. It may take us a while to get there, however.