The Rt. Rev. John C. Bauerschmidt, Bishop of Tennessee, walks a fine line. He is a co-plaintiff, with his Diocese, in a lawsuit he brought against St. Andrew’s parish in Nashville, which in 2006 voted to leave the Diocese of Tennessee and join the Diocese of Quincy. And in that capacity, he recently received a favorable decision from the Court of Appeals, holding that because ECUSA is “hierarchical” at all three levels, the General Convention’s Dennis Canon, enacted in 1979, overrode the parish’s attempt a year before, in 1978, to remove from its Articles all references to the national Church and its canons.
In other words, even though St. Andrew’s had declared in 1978 that it would no longer abide by the national Church’s canons, the Church could, simply because it is "hierarchical", unilaterally impose a trust on St. Andrew’s property in 1979 by passing a new canon. Said the Court of Appeals:
"St. Andrew’s asserts that no matter how clear the church governance documents may be regarding establishment of a trust, those documents do not create a trust in this instance because they simply do not apply to St. Andrew’s. This argument is based upon St. Andrew’s assertion that The Episcopal Church is not hierarchical for all purposes and, in particular, with regard to property ownership and control.
"The trial court described the organization of The Episcopal Church, including its three tiers and the governance of the general or central church, its dioceses, and its parishes. Those facts establish that The Episcopal Church is a hierarchical church, using the test set out above and the tests applied in Tennessee and other courts.
"As stated earlier, property disputes arising when an Episcopalian congregation decides to break away from The Episcopal Church have been before the courts in a number of states. In all of the opinions we have reviewed, either the parties agreed, or the courts concluded, that The Episcopal Church is hierarchical....
"St. Andrew’s has cited no case in which a court has concluded The Episcopal Church is not hierarchical, for property matters or otherwise...."
In reaction to this decision, Bishop Bauerschmidt issued a statement which said in part: “The Bishop and Diocesan leadership have a responsibility to see that resources held in trust for the Episcopal Church are used for the Episcopal Church..” It was, of course, Bishop Bauerschmidt and his attorneys who gave the Court its ammunition and its arguments, because they wanted to enjoy all the benefits that come from being classed as “hierarchical”, even in a State which supposedly applies “neutral principles of law” to church property disputes. But the Tennessee Court of Appeals went the plaintiffs one step farther. It held that St. Andrew’s could not even raise a disputed issue of fact as to whether ECUSA is hierarchical:
"St. Andrew’s [Nashville] contends that it created a genuine issue of material fact concerning whether The Episcopal Church is hierarchical for temporal matters, including property disputes. St. Andrew’s submitted an affidavit by a former bishop of a diocese in Illinois, an affidavit by a board member of a diocese in Florida, and a document entitled Bishops’ Statement on the Polity of The Episcopal Church (the “Bishops’ Statement”). The former bishop stated that The Episcopal Church is not hierarchical for any purpose. The board member opined that The Episcopal Church is not hierarchical for “the issues in this dispute.” The Bishops’ Statement is dated April 18, 2009, and appears to be authored by fifteen or so bishops and former bishops, but does not appear to be sanctioned by The Episcopal Church or the General Convention. The Bishops’ Statement suggests, inter alia, that The Episcopal Church is a voluntary association of equal dioceses.
"The affidavits St. Andrew’s offered do not create a disputed issue of material fact because the affiants were simply offering their opinions and interpretations of the constitutions and canons, not facts. The constitutions and canons, as well as St. Andrew’s filings and Articles of Association, speak for themselves and are determinative of the issue. As discussed earlier in this opinion, when resolving disputes involving hierarchical churches, the courts will defer to the highest church authority on questions of church governance. In such situations, the courts “are bound to look at the fact that the local congregation is itself but a member of a much larger and more important religious organization, and is under its government and control, and is bound by its orders and judgments.” Watson v. Jones, 80 U.S. at 726-27. We think that includes interpretation of church governing documents and interpretation of the basic organization of the church. Consequently, we cannot conclude that there is a factual question regarding the organization and governance of The Episcopal Church and will not inquire into it."
What is remarkable about this casting aside of all contrary evidence is that the Bishops’ Statement, which the Court denigrates because it “does not appear to be sanctioned by The Episcopal Church or the General Convention”, is a statement published in 2009 by fifteen bishops who were all founding members of Communion Partners -- of which Bishop Bauerschmidt has been a member since shortly after he assumed diocesan authority in 2007. He now sits on its Bishops’ Advisory Committee.
The Bishops’ Statement was notoriously leaked by Episcoleft bloggers ahead of its formal publication, in April 2009, by the Anglican Communion Institute, and quickly became their cause célèbre. The bloggers saw no problem in violating privacy and publishing personal emails, because it was more important to “out” the Communion Partners‘ outrageous plans to assert diocesan autonomy, in what they saw as a betrayal of the new Presiding Bishop’s authority.
The resulting brouhaha may have deterred some Communion Partner bishops from signing on to the Statement when published -- we will never know. Along with the Anglican Communion Institute, as already noted, fifteen of the twenty-one CP bishops signed the Statement -- and Bishop Bauerschmidt was not one of them. (He was still six months away from filing his lawsuit against St. Andrew's.)
Nor was he a signatory to the recent and controversial amicus brief filed in the Fort Worth case now pending before the Texas Supreme Court, which was signed by seven CP bishops. The brief took the position that ECUSA was not hierarchical above the level of its dioceses, i.e., that the dioceses themselves were autonomous and subject to no higher authority in the Church. As such, it directly opposed the “official” position of ECUSA, emphasized over and over again in its brief in the Fort Worth case, that it was “hierarchical” from top to bottom, with the dioceses occupying the middle level between General Convention and individual parishes.
Thus Bishop Bauerschmidt may take pride from his membership in and advisory role to an organization whose other members are openly opposed to the version of Episcopal “hierarchy” being pushed on the courts by the Presiding Bishop and her attorneys. He may even agree with that stand when it comes to his own Diocese’s autonomy; we may never find out.
When, however, it suits his purposes to use the hierarchy argument to impose the Dennis Canon on a parish against its express will, and despite its attempts to opt out of any such trust in advance, he finds it convenient to align himself with the Presiding Bishop’s position, because it provides him with a ticket to victory in his own case. And he does so, even though it undermines everything for which his fellow CP bishops are presently risking their careers and their miters.
It’s as Groucho Marx once memorably said:
“Those are my principles. And if you don’t like them ---”
[here he paused, and raised those famous eyebrows several times while taking a puff on his cigar, before resuming in a softer voice:]
“Well, I have others.”