February 5, 2011

Why Bother?

The Anglican Diocese of Pittsburgh is going to ask for a rehearing of the appeal just decided by the Pennsylvania Commonwealth Court. That is the gist of a press release issued yesterday by the Anglican Diocese of Pittsburgh. (See “Details of Commonwealth Court Ruling.”)

Under the circumstances, it is natural to ask why the diocese is bothering. The Commonwealth Court said pretty much what one might have expected, namely, that the stipulation agreed to by Calvary Church and then bishop Robert Duncan in October 2005 says just what it seems to say, and that the Court of Common Pleas of Allegheny County erred neither in its procedures nor in its judgment. Apparently, the three judges who heard the arguments in the case were in complete agreement in finding no merit in any of the sometimes far-fetched reasoning advanced by Archbishop Duncan’s lawyers.

Anglican diocese logoGiven the reception the appellants received from Commonwealth Court, it seems unlikely that a second bite at the apple will be granted and, if granted, will be successful. The move will, however, buy time, making success for the Anglican diocese no more likely, but delaying the absolute and final defeat in the courts. Honestly, I expected an appeal to the Pennsylvania Supreme Court, which will likely decline to hear the case. Once Commonwealth Court definitively disposes of the case, I’m sure we will indeed see a request for the high court to weigh in.

No one should be surprised that Duncan and his cronies have not given up the fight. This is simply what the “orthodox” secessionists from The Episcopal Church have done time after time—appeal endlessly after each legal reverse, most recently in the Diocese of Fort Worth. God only knows where the money comes from.

So, where do things stand? The Common Pleas court ordered the Anglican diocese to surrender diocesan assets to the Episcopal diocese, which, by and large, it has done. (The inventory includes various trust funds, real property, archives, and other material. I was disappointed that it did not include computers, routers, telephones, vestments, paper clips, and office furniture.) Should it become necessary at some point to undo this transfer, we will face one holy mess. But that is a vanishingly small possibility.

Actually, I don’t think that Duncan really expects to undo what increasingly seems like a done deal. Instead, he has two objectives: (1) help his allies as best he can and (2) keep the faithful in his diocese whipped up over the actions of the Episcopalians and distract them from thinking too deeply about their future.

Delay, of course, keeps up the spirits of the militant secessionists both within Southwestern Pittsburgh and elsewhere in the Anglican Church in North America (ACNA). As long as property litigation is ongoing, it is possible to delude one’s self into thinking that, despite losses piled upon losses, one might possibly win in the end.

Although the Anglican diocese is prolonging litigation mostly for symbolic reasons, Duncan and his lawyers may have at least one legal objective they think they may be able to achieve. The February 4 press release contains this sentence:
We believe there is an error in the court opinion that, if corrected, would lead to the validity of withdrawal issue finally being adjudicated,” said Archbishop Robert Duncan, bishop of the Anglican Diocese of Pittsburgh.
Recall that the Allegheny County court held a hearing on whether the Episcopal diocese should be awarded property once held by the undivided diocese assuming the withdrawal of the “Anglicans” was valid. The idea was that the validity of the withdrawal would be a complex issue that would not have to be argued in court if it actually made no difference. Judge Joseph James found that the wording of the stipulation did indeed require diocesan property to be given to the Episcopal diocese even if the withdrawal were proper. (I believe it was not, of course.)

Clearly, “the validity of withdrawal” is a moot issue in the Pittsburgh case, but it is very much in dispute in the courts dealing with the diocesan splits in Fort Worth and San Joaquin. Those dioceses do not have the benefit of an agreement like the Pittsburgh stipulation and have to argue the validity of withdrawal based on corporate and canon law. A determination of the legitimacy of withdrawal in the Pittsburgh case could help the ACNA dioceses, if only by identifying successful or unsuccessful legal theories about such withdrawals.

If the point is moot in the Pittsburgh case, however, why would Commonwealth Court have any interest in considering the matter? What “error” do the appellants think will move the members of the court? Significantly, the opinion of the Commonwealth Court is unpublished, indicating that the court found the matter to be a straightforward case of interpreting a clear, written agreement, that is to say, a case of no consequence for other litigation—basically, uninteresting.

The same day the diocese announced its intention to seek a rehearing before Commonwealth Court, Archbishop Duncan sent a pastoral letter to his diocese. In that letter, he is doing damage control not only in the wake of the Commonwealth Court decision but also in the aftermath of the St. Philip’s agreement. (See “St. Philip’s Update.”) He informs his diocese of the request for a rehearing before Commonwealth Court, and he laments the loss of St. Philip’s. (There is poetic justice here—having liberated most of its parish property from The Episcopal Church, ACNA declared that parish property could be disposed of by the parishes themselves, which made it impossible to object, other than rhetorically, to the St. Philip’s settlement.)

The announcement about the rehearing petition is meant to be encouraging, and Duncan observes that “the lower court’s ruling will not yet be final.” Significantly, he does not predict ultimate victory. Instead, the letter is mostly a pep talk intended to ease fears of losing property, having to return to The Episcopal Church, or being cut loose from the moorings, however illusory, of Anglicanism.

There is little of substance in the pastoral letter. Duncan declares that “the Standing Committee will work tirelessly for a negotiated end to the strife between the Anglican and Episcopal Church Dioceses.” This mirrors a line from the press release: “They [The Bishop and Standing Committee] also reaffirmed their commitment to work tirelessly to arrive at a reasonable negotiated settlement with the Episcopal Church diocese.” The bishop and Standing Committee have little to do, however. The matter of diocesan property is essentially settled, and, as per the stipulation, the matter of parish property occupied by the dissidents is a matter to be settled by the individual congregations and the Episcopal Diocese of Pittsburgh. Duncan and his Standing Committee may be able to advise his congregations, but the Episcopal Diocese has little reason to talk to them. (Recall that an ACNA diocese, unlike an Episcopal Church diocese, has no power over parish property.)

Duncan knows full well that his Western Pennsylvania churches are justifiably anxious. Surely the two dozen churches in buildings now owned by the Episcopal diocese have to know that their negotiation position is—not to put too fine a point on it—tenuous. What the effect of the negotiation process specified in the stipulation might be is anyone’s guess, but Duncan’s churches have to wonder if they are in a shrinking diocese soon to be dominated by parishes outside Pennsylvania. (Of course, it will be a great embarrassment to ACNA for its leader and primate-hopeful to control a diocese that seems to be melting away.)

To lift the spirits of the faithful, however, Duncan employs one of his greatest strengths—God talk. For instance, he tells his diocese
Our God is the Red Sea God. Our God is the Empty Tomb God. He will not abandon us. He has not abandoned us. As so many times before, He just delights in showing His power. Our journey as a Diocese since 2006 [sic?] has had many impossible moments. Yet every pruning has, in fact, made us stronger and more fruitful. That is the record.
He returns to this theme at the end of his letter:
Let us all stand together. Let no one stand alone. Fast and pray. More than ever this is the season for clean hands and a pure heart. [Ps 24:4] The Lord’s promises remain. He is God at the Red Sea, at the Empty Tomb, and right here and now. Trust Him. He will not fail.
Apparently, the thought that God might also be the God of Pittsburgh Episcopalians has not crossed the mind of the Archbishop.


  1. Good post. That last section is deeply disturbing, but fits in well with both the "God on our side" mentality and, in answer to what you suggest may not have occurred to the bishop but which I think has, that the real Episcopalians have ceased to worship the same God as this purist tribe.

    More and more the schismatics are reaping in themselves the reward of their error. On those who cause such divisions, see Jude 14-19

  2. Lionel,

    I'm not a lawyer, but I of course entirely agree with you that it seems the odds are about as long as they could possibly be that the Commonwealth Court, having heard arguments once, would find sufficient cause in terms of error of fact to reverse their decision.

    I agree as well that it's unlikely the Supreme Court of the Commonwealth will feel compelled to hear this, since the matter is framed not as a matter of law but as the interpretation of the enforcement by Judge James of the Stipulation that settled the Calvary suit.

    So of course this is--to say, on this Superbowl Weekend--a "hail Mary." Perhaps, indeed, more directed at the morale of the home side than at the possibility of actual success. We are a people together who deal with values and symbols and all the intangibles of faith, after all.

    So I don't begrudge them the play. I'm sure if our Episcopal Diocese had been on the short side of Judge James's ruling or of the appeal, we would expect our leadership as well to "exhaust all avenues" before retiring from the field. I wouldn't be surprised if the legal team for the Anglican Diocese isn't carefully reviewing all this now to see if there might be any grounds for a possible referral to Federal Court. And if they can see any, I would expect them to keep going for as long as they can.

    I know from many of my conversations with friends in the Anglican Diocese over the past couple of days that this is a moment of real discouragement for them. And while I believe their legal position is erroneous, what I also believe is that their fears about what will happen to them and to the important ministries they share in their congregations should their legal efforts fail are also not correct. They've been told that we don't care about them and that we are motivated now by a spirit of vengence. Which I know truly is not the case.

    What the successful conclusion of the St. Philip's negotiation shows is at least that the Episcopal Diocese is willing to sit down with members of Anglican congregations and to work in good faith to find a workable way forward. I pray that we will indeed continue to listen to the quiet urging of our better angels, and that there may be good news ultimately in this for all of us.

    Bruce Robison

  3. I agree with your analysis, Lionel. Lets hope that for all involved that the legal wranglings are nearly at an end.

    As to "God on our side" I recall Lincolns observation: "We trust, sir, that God is on our side. It is more important to know that we are on God’s side."

    Geoff Hurd


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