Friday, May 30, 2008

A Primer on the Crisis (The Short Version)

I have now devoted seven rather lengthy posts to the history and misuse, both past and current, of the "Abandonment of Communion by a Bishop" Canon (Canon IV.9). In response to some requests for a boiled-down, just-the-meat-of-it version, I am putting up this post. A printable version of it may be found here.

The Current Problem

The current problem can be summed up in the names of just two people: Episcopal Church Presiding Bishop Katharine Jefferts Schori and her Chancellor, David Booth Beers. In recent proceedings under Canon IV.9 brought against the Rt. Rev. John-David Schofield and the Rt. Rev. William J. Cox (who had been, prior to his so-called "deposition," the most elderly Bishop of the Church), they ran roughshod over the plain requirements of the Canon. When they were called on what they had done, they gave audacious responses that denied that anything had been done wrong. Not only that, but Presiding Bishop Jefferts Schori has just as audaciously announced her intention of going forward with a vote, at the next House of Bishops meeting in September, to depose the Rt. Reverend Robert Duncan from his see in the Diocese of Pittsburgh---on the same illegal basis as the one on which she proclaimed the "deposition" of Bishop Cox.

The Violations of the Canon

First, Canon IV.9 provides (see the end of this post for the text) that when charges of abandonment have been certified by the Title IV Review Committee, notice of the charges shall be given "forthwith" to the Bishop so charged. The charges against Bishop Cox were certified to Presiding Bishop Jefferts Schori on May 29, 2007. She did not notify Bishop Cox of them until January 9, 2008---more than seven months later.

Second, before giving notice of the charges, the Presiding Bishop was required to seek the consent of the three most senior active Bishops in the House to inhibit Bishop Cox from performing any episcopal functions pending the vote on his deposition. She did not do so, and she did not obtain any consent to his inhibition, but obtained it in regard to Bishop Schofield.

Third, the Canon provides the "inhibited Bishop" with sixty days to respond to the charges, and says nothing about any further proceedings against a Bishop who was not inhibited. Notwithstanding that language, when Presiding Bishop Jefferts Schori notified Bishop Cox of the charges, she told him he had sixty days to respond before he would be deposed.

Fourth, when the sixty days had run, the Presiding Bishop brought a resolution to consent to Bishop Cox's deposition before the House of Bishops at its meeting in Camp Allen on March 12. Again, the language of the Canon provides that only a Bishop who has been inhibited shall be "liable to deposition," but in clear violation of those words, she took up the resolution with the House anyway.

Fifth, the Canon requires that the House of Bishops give its consent to deposition "by a majority of the whole number of Bishops entitled to vote." Article I, Section 2 of the Constitution spells out which Bishops are "entitled to vote" in the House---counting those both active and retired ("resigned" is the technical term), there were 294 such Bishops entitled to vote as of March 12. Thus a majority of that number would be 148. But only 131 Bishops registered at the meeting when it began on March 9, and that number was down to 116 as of the last day, the morning of March 12. By the time the resolutions to depose came up for discussion, the roll call registered just the bare minimum of active Bishops needed for a quorum: 68. The vote on the resolution was by voice only; no record of the actual votes exists. But it is obvious that the requirement for a minimum of 148 votes to approve the deposition could not possibly have been satisfied.

Notwithstanding all these defects in the procedure, Presiding Bishop Jefferts Schori signed certificates of deposition with respect to both Bishops shortly thereafter. When she was challenged on the procedures that had been violated, she defended her actions by saying that she had been advised throughout by her Chancellor, David Booth Beers, and he himself issued a statement that the depositions had been conducted properly.

Shortly after she began the proceedings against Bishops Cox and Schofield, the Presiding Bishop also notified Bishop Duncan that charges of "abandonment" had been certified against him by the Review Committee. As in the case of Bishop Cox, she was not able to get the consent of the three senior active bishops to his inhibition. Nevertheless, she gave him 60 days in which to respond to the charges. This 60-day period expired after the meeting of the House of Bishops ended on March 12, so she could not bring a resolution to depose him at the meeting. At its conclusion, she announced she would poll the members of the House about holding a special meeting in May to consider his deposition. When the results of that poll were apparently negative, she announced that she would bring a resolution to depose Bishop Duncan before the House at its next regular meeting in September. Both Bishop Duncan (through his attorney) and the Standing Committee of his diocese have protested that such a step would be in violation of Canon IV.9. And there the matter stands.

Questions and Answers

Q What's the big deal about Bishops Cox and Schofield? They didn't protest the charges, and they both wanted to leave The Episcopal Church for other pastures.

A Since they were not objecting, what would have been so hard about following the procedures spelled out in the Canon (or about applying the right one to begin with)? Out of the many answers this question calls for (we live under a rule of law, not men/women; ignoring the law is anarchy, etc.), I think this one applies best: The big deal is that Katharine Jefferts Schori is a BISHOP, and not just any Bishop, but our Presiding Bishop. A law-breaking Bishop is a contradiction in terms---an oxymoron. To have a law-breaking Bishop who presides over the whole Church is a calamity of the first magnitude.

Q Hadn't both Bishops already resigned from the Church?

A Yes, that's part of the tragedy here. When faced with a trial on the charges made against him (for ordaining, on U.S. territory, ministers into another church of the Anglican Communion [God forfend!]), Bishop Cox sent a letter of resignation rather than undergo the ordeal (after all, he was 85 years old, and dealing with a wife who had Alzheimer's Disease). That resignation mooted the charges, but Presiding Bishop Jefferts Schori took his letter (of resignation, mind you!) and promptly referred it to the Review Committee for new charges that he was now "abandoning the communion of this Church," and so needed to be deposed. (That is punishing with a vengeance, and can in no sense be termed Christian---particularly in light of her breaking the law to achieve her end. Don't be shocked by my blunt language: somebody has to call the Presiding Bishop to account for her brazen unlawfulness. Her own advisors are clearly not up to the task, and if it takes a curmudgeon to do it, so be it.)

As for Bishop Schofield, he resigned his seat in the House of Bishops, but not his see as the Bishop of San Joaquin. This meant that a new bishop could not be chosen to lead the Episcopalians in the diocese who wanted to remain with The Episcopal Church (TEC) until that see was vacant. Rather than negotiate with Bishop Schofield for a resignation that would have accomplished this, Presiding Bishop Schori chose the deposition route under Canon IV.9, and then failed to get the required number of votes for his deposition. So technically, even though he does not see himself as still affiliated with TEC, Bishop Schofield remains the Episcopal Bishop of San Joaquin until he has been properly deposed, or until the House of Bishops accepts a properly negotiated resignation.

Q I thought the Presiding Bishop had appointed the Rt. Rev. Jerry Lamb as the Episcopal Bishop of San Joaquin to replace Bishop Schofield.

A That's another can of worms arising out our Presiding Bishop's refusal to follow the Constitution and Canons. She did not follow them in claiming that Bishop Schofield was deposed, so everything she did in San Joaquin after that declaration was without any validity. She had no authority under the Canons to "derecognize" the Standing Committee; she had no authority to call a "Special Convention" on less than 30 days' notice; and there was not even a proper quorum at the Special Convention to approve the designation of Bishop Lamb.

Q How is it that Canon IV.9 was not followed in the deposition of Bishop Schofield? He was inhibited first as the Canon requires, right?

A Yes, he was, but as I explained earlier, there were not sufficient votes on March 12 to depose him, and so the motion to depose failed to carry. If the Church wants to try again to depose him, it will have to begin the process anew. And there is a problem even there: Bishop Schofield was charged with "abandoning the communion of this Church", because he left it for the Province of the Southern Cone, which is another Church in the Anglican Communion, with which The Episcopal Church considers itself to be "in communion." But the second clause of the first section in the Canon (see the text below) defines "abandonment" to mean the joining of a church that is "not in communion" with this Church. So how can he be considered to have "abandoned the communion of this Church" by joining a church that is in communion with us? Well, they charged him with renouncing "the Doctrine, Discipline, or Worship of this Church” under the first clause. So either the Canon’s definition contradicts itself, or the “Doctrine, Discipline and Worship” of the Episcopal Church is not the same as the Doctrine, Discipline and Worship of the rest of the Anglican Communion, and the Episcopal Church has no business calling itself a “constituent member” of that Communion. Take your pick.

Q Haven't reasonable people disagreed over what number of votes the language of the Canon requires in order to consent to the deposition of a Bishop?

A The Canon says that the House of Bishops must consent to a deposition "by a majority of the whole number of Bishops entitled to vote." Some reasonable people, like the Rev. Mark Harris, Father Jake, and some of those who comment at his blog, side with the Presiding Bishop's Chancellor and say that there were enough votes, because in their view the language really means "by a majority of the whole number of Bishops present at the meeting and entitled to vote." But that view is contradicted by the history of the Canon itself, and by other analogous passages in the Constitution and Canons.

Q Explain what you mean, please.

A Ever since its first version adopted in 1853, and throughout its three subsequent amendments since then, the Canon has used language that meant the majority of the whole House of Bishops had to approve the deposition of a fellow Bishop. (See the details here.)

In 1901, as part of a complete revision of the Constitution and Canons begun in 1895, the General Convention of the Church adopted a Constitution which used the exact same language in requiring that any changes to the Book of Common Prayer, and any further changes to the Constitution itself, had to be approved by the same "majority of the whole number of the Bishops entitled to vote in the House of Bishops" (Constitution, Arts. X and XII). So when the revisers of Canon IV.9 adopted this same language in 1904, they were saying that the deposition of a Bishop---which, remember, had theretofore always required such a majority---would continue to require such a majority.

It cannot seriously be argued that the language of Arts. X and XII as so adopted could be read to mean that just a simple majority of the Bishops present at a meeting could approve changes to the Constitution or to the Book of Common Prayer. Look at what this would mean if it were true today: with 294 Bishops entitled to vote (as of March 12, 2008), a quorum of the House of Bishops is just 68 active Bishops (because Art. I, section 2 of the Constitution spells out that for purposes of a quorum, only active Bishops with jurisdiction are to be counted). So under such a reading of the language as originally adopted in 1901, at a meeting where just 68 active Bishops were present and voting (as on March 12), a change proposed for the Book of Common Prayer, for example, would pass if it got just 35 votes, or just twelve percent of the total number of votes entitled under that language to be cast on the question. That is not reasonable, by any means of construction.

Q OK, but as I look at the language of Arts. X and XII today, it's not the same anymore as the language in Canon IV.9, is it?

A No, you're right, and that difference supplies, ironically, the clincher to this argument. The reason is that General Convention amended those Articles in 1937 to insert the phrase "excluding retired Bishops not present" into the language describing the majority needed to approve any changes. The key point is that neither General Convention 1937, nor any Convention since, ever made the same change to the language of Canon IV.9---they left its language untouched. But the language they inserted into Articles X and XII shows unarguably that by excluding the count of any retired Bishops who are not present, they must by the same token be including in the count any active Bishops who are not present, since only those who are both retired and not present are to be excluded. So that means, before this change was made, the drafters understood the language to require the inclusion in the count of all Bishops, active and retired, who were not present at the meeting itself---and that is precisely the reading that has been uniformly followed throughout the history of Canon IV.9.

Q Well, not really "uniformly," correct?

A (Sigh.) Again, you're right. Supporters of Chancellor Beers's view, such as Bishop Stacy Sauls of Lexington in his recent Memorandum to the House of Bishops, regularly trot out two examples of depositions that occurred in the past fifteen years where it also appears, from the records that survive, that there was not a full majority of all the Bishops in the House present and voting for the depositions. But an act done in violation of the Canon cannot serve as a precedent for how to follow the Canon---that's a logical impossibility. The solution, if you want to depose people on the vote of just those who show up, is to strike the words "whole number" from the Canon and add the words "present at the meeting"---just as the drafters did in the case of Canon III.12.8 (d), which provides that a Bishop's resignation may be accepted by "a majority of those present" (emphasis supplied).

Q So, what's going to happen in the case of Bishop Duncan?

A All of the Bishops in the House of Bishops are going to have to educate themselves on these issues, and show up in September prepared to address and discuss them, because I predict that a real donnybrook will ensue if the Presiding Bishop does go forward with her single-minded plan to remove him without having received consent to inhibit him first, as required by the Canon. If the House simply kowtows to her wishes and rubber-stamps a "deposition"---even with the full number of votes required this time---it still will be an unlawful act, because as the Canon itself says, only a Bishop who has first been "inhibited" is "liable to deposition". Bishop Duncan, remember, was not inhibited; therefore, the Canon says he cannot be deposed under its own terms. My hope is that, as the Bishops read about this and educate themselves, they will come to see that it will be futile to pile one illegal act upon another, no matter what Chancellor Beers or the Rt. Rev. Stacy Sauls advises them, and that they will either halt the proceeding in its tracks, or (better yet) inhibit the Presiding Bishop herself from going forward with her unlawful plan.

Q If I want more information than just what is in this summary, where should I look?

A These eleven posts (seven on the canons, and four on San Joaquin) will provide you with all the links that you need to become an expert on the situation:

On the Situation in San Joaquin:

And finally, as a bonus, here's how the House of Bishops, if it has the spine to act, could ward off the coming donnybrook:

Envoi: Anyone who takes the trouble to read the foregoing posts will know that I feel strongly that Canon IV.9 is absolutely the wrong Canon to apply to the cases of Bishops Cox, Schofield and Duncan. I express no opinion here on what would be the proper outcome of a presentment brought against any of them on charges made under Canon IV.1, because a such a presentment would require a trial, and the outcome of each trial would depend on what facts could or could not be proven in each individual case. But that is not my point.

Rather, the point I want to drive home here is that Canon IV.9 is not only the wrong Canon to use in these circumstances, but it is not even being followed. The procedure which the Presiding Bishop proposes to use to depose Bishop Duncan is unlawful, just as was the procedure she followed in "deposing" Bishop Cox, because neither of them was ever inhibited, as the Canon requires. Believe me, it will be in no Bishop's interest (other than that of the Presiding Bishop, because she alone is driving the agenda) to go on record as flouting the plain meaning of the Canon---and in September, the Bishops will not be able to hide behind a voice vote. Every single Bishop attending will have to be recorded as voting either "Yea" or "Nay" on allowing the resolution to depose to go forward. The lawlessness of those who cast their lots with the Presiding Bishop will then be out in the open for all to see. And for a Bishop knowingly to vote to break the law means not only that he or she will be committing the very act with which they are charging Bishop Duncan---that is, "openly renouncing the Doctrine, Discipline and Worship of this Church", and breaking their own ordination vows to boot. It means also that by casting such a vote, each of them becomes a living contradiction of their faith, that is, a professed disciple of Christ who nonetheless tramples at will, when it is expedient, on the law of the Church.

In sum: the watchword among the Bishops in this instance had better be Matthew 11:15.

* * * * *

And now, here is the language of Canon IV.9 for reference:

CANON 9: Of Abandonment of the Communion of This Church by a Bishop

Sec. 1. If a Bishop abandons the communion of this Church (i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or (ii) by formal admission into any religious body not in communion with the same, or (iii) by exercising episcopal acts in and for a religious body other than this Church or another Church in communion with this Church, so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in this Church; it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop and with the certificate to send a statement of the acts or declarations which show such abandonment, which certificate and statement shall be recorded by the Presiding Bishop. The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. During the period of Inhibition, the Bishop shall not perform any episcopal, ministerial or canonical acts, except as relate to the administration of the temporal affairs of the Diocese of which the Bishop holds jurisdiction or in which the Bishop is then serving.

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false or utilizes the provisions of Canon IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement constitutes (i) a good faith retraction of the declarations or acts relied upon in the certification to the Presiding Bishop or (ii) a good faith denial that the Bishop made the declarations or committed the acts relied upon in the certificate, the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, terminate the Inhibition. Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

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