Saturday, October 16, 2010

Part III of The Constitutional Crisis in ECUSA: "If You Want Our Voice, Then We're Giving It to You"

The constitutional crisis in ECUSA continues to worsen. Many people observing the events in South Carolina have drawn a parallel to the shelling of Fort Sumter which started the Civil War, but I believe that to be an inappropriate analogy. There is, after all, no ECUSA "enclave" within the Diocese of South Carolina which could have any parallel to the federal garrison at Fort Sumter before the War Between the States. If a parallel must be drawn, then a closer one would be the situation just before the start of the Revolutionary War, when a distant sovereign was claiming the right to impose duties on the colonies without their having any mechanism to object to such tyranny.

That is not to say that there are no "federalist sympathizers" (sc. "815 loyalists") within the Diocese of South Carolina. There are a few, and as is typical of such misguided federalists, they want to uphold the power of the "national government" over the local one. The problem is that the Episcopal Church is in the United States of America, and is not of the United States of America.

That is a tiny semantical difference between the meaning of "in" and "of", but it is absolutely crucial to understanding the current crisis. So let me repeat: there is no such thing, and never has been any such thing, as the "Episcopal Church of the United States of America." What we have, and always has had since 1789, is what the "federalists" in our midst would too conveniently forget and ignore: a (Protestant) Episcopal Church in the United States of America. (To verify that fact, please see the text of the original 1789 Constitution of PECUSA, which I reproduced in this post (scroll down to the bold and centered headline); and please look at the latest online version of our Constitution, which you may download from this page.) To quote from the Preamble to the most recent version: "The Protestant Episcopal Church in the United States of America, otherwise known as The Episcopal Church (which name is hereby recognized as also designating the Church), is a constituent member of the Anglican Communion . . ." (emphasis added).

Ever since 1789, the Church has acknowledged that it is an entity which exists in, and not as something superior to and above, the churches (dioceses) in the several States of America. That is to say, each State (in 1789, at least) had its own version of the "Episcopal Church" in that State. (The churches in those States later became the churches in each of the numerous dioceses.) Contrast that language to the terminology used to describe the President: we speak of the "President of the United States of America", and not of the "President in the United States of America" -- the latter would make no sense, given our Constitution which establishes a federal government, separate and above the governments of the individual States.

Likewise with Congress: its official title is "the United States of America, in Congress assembled" -- signifying that each of the States comes together in a larger legislative body, with the powers to legislate for all of them as conferred by the specific clauses of the Constitution. That same Constitution also creates a national executive and a national judiciary, while ECUSA's Constitution does no such thing. It creates only a legislative body, and unlike the United States Congress, which is in session throughout most of each year, ECUSA's legislative body is in session for just a few days every three years. So, please -- spare us the "parallels" between the government of ECUSA and the government of the United States; there are precious few, and none which is relevant to the present discussion.

A government of a country needs an executive power, as well as a judiciary power, in addition to a legislative one. A "government" for a church, on the other hand, can get along perfectly well with only a legislative body to regulate national standards for clergy, and with no supreme executive, or supreme judiciary authority. Indeed, that is just how the Episcopal Church in the United States of America has been, for the last 221 years of its existence.

There are those in the Episcopal Church today, however, who would stand its history on its head, and claim that the Presiding Bishop is both its chief executive and its chief judicial officer. The only duty of the Presiding Bishop conferred on that position by ECUSA's Constitution, however, is to preside -- over the House of Bishops. All else has been conferred by subsequent canons -- such as the making of the Presiding Bishop "the chief Pastor and Primate" of the Church.

In the hierarchy of church law, the Constitution is at the top. Then comes the Book of Common Prayer, with its rubrics and liturgies which require two successive meetings of General Convention to be changed. Last come the Canons, or bylaws, which may be adopted by vote of a single General Convention.

If Canons (bylaws) are enacted which are contrary to the Constitution or the Book of Common Prayer, what is one to do? How can one follow canons which are contrary to the Church's higher law, and still claim to "accede" to the Constitution of the Church?

This is the constitutional dilemma which now, thanks to the misguided zeal of General Convention 2009 and its predecessors, confronts every diocese in the Church, and not just the Diocese of South Carolina. The latest General Convention adopted far-ranging changes to the Title IV disciplinary canons of the Church. There is no rational way in which any sane person, viewing the changes as a whole, can conclude that all of the changes so made are consistent with the provisions in ECUSA's Constitution.

For just one example of what I mean, take first this paragraph from (revised) Canon IV.7.1 as approved at GC 2009 (bold emphasis added):
At any time the Bishop Diocesan may issue a Pastoral Direction to a Member of the Clergy, canonically resident, actually resident, or licensed in the Diocese.
A "Pastoral Direction" must satisfy these requirements (set out in revised Canon IV.7.2):
A Pastoral Direction must (a) be made in writing; (b) set forth clearly the reasons for the Pastoral Direction; (c) set forth clearly what is required of the Member of the Clergy; (d) be issued in the Bishop Diocesan's capacity as the pastor, teacher and overseer of the Member of the Clergy; (e) be neither capricious nor arbitrary in nature nor in any way contrary to the Constitution and Canons of the General Convention or the Diocese; and (f) be directed to some matter which concerns the Doctrine, Discipline or Worship of the Church or the manner of life and behavior of the Member of the Clergy concerned; and (g) be promptly served upon the Member of the Clergy.
Have you got that? A diocesan bishop may "at any time" issue such a "Pastoral Directive" to a member of the clergy under his or her jurisdiction. However, what happens if the "member of the clergy" in question is a bishop, such as a Suffragan or Assistant Bishop? In that case, revised Canons IV.17.1 and IV.17.2 provide (bold emphasis added):
Sec. 1. Except as otherwise provided in this Canon, the provisions of this Title shall apply to all matters in which a Member of the Clergy who is subject to proceedings is a Bishop.

Sec. 2. In all matters in which the Member of the Clergy who is subject to proceedings is a Bishop, the following terms used in Canons IV.5 through IV.16 and Canons IV.18 and IV.19 shall have the following respective meanings:
(a) Disciplinary Board shall mean the Disciplinary Board for Bishops as provided in Canon IV.17.3.

(b) Intake Officer shall mean a person appointed by the Presiding Bishop.

(c) Bishop Diocesan shall mean the Presiding Bishop, unless the Member of the Clergy who is subject to proceedings is the Presiding Bishop, in which case Bishop shall mean the Bishop authorized by Canon IV.19.24. . . .
So by the express language just quoted, the Presiding Bishop of ECUSA will be empowered (or would be, if the canonical changes were constitutional) to issue to any other bishop in the Church, at any time, a "Pastoral Directive" which touches on "some matter which concerns the Doctrine, Discipline or Worship of the Church or the manner of life and behavior of the Member of the Clergy concerned . . .".

If you contend that such a change was never intended, then you have to explain the specific language which introduces the revised version of Canon IV.17.1: "Except as otherwise provided in this canon [i.e., Canon IV.17], the provisions of this Title [i.e., Title IV on discipline] shall apply to all matters in which a Member of the Clergy who is subject to proceedings is a Bishop." The authority to issue a Pastoral Directive is contained in Title IV, and that authority rests exclusively in the "Bishop Diocesan." And according to Canon IV.17.2, "[i]n all matters" in which a bishop is the subject of Title IV proceedings, the term "Bishop Diocesan" shall mean the Presiding Bishop.

This has never before been the case in the 221-year history of the Episcopal Church. Any Episcopal canon lawyer worth his salt will confirm to you that at no time in its history has the Presiding Bishop ever had the power to issue a "Pastoral Directive" to a colleague, directing that they do "what is required . . . concern[ing] the Doctrine, Discipline or Worship of the Church or the manner of life and behavior of the [Bishop] concerned." Such a "directive" is the sole prerogative of an archbishop with metropolitan authority: for example, the Archbishop of Canterbury may issue a "pastoral direction" to any member of the clergy in his Province of Canterbury, or the Archbishop of York may do likewise in his Province.

One cannot, however, be conversant with the early history of ECUSA and at the same time be ignorant of the overwhelming sentiment among its founders -- both clergy and laity alike -- against the power of bishops, and in particular, metropolitan bishops. That is why the 1789 Constitution of ECUSA gave no such powers to the Presiding Bishop, and why no version of the Constitution in the years since has ever conferred such powers, either.

What, then, are we to make of the revised Title IV passed at GC 2009? Does General Convention have the ability to confer powers upon Church officials which go beyond what the Constitution itself confers on those officials? Manifestly not.

But there are those, such as Bishop Mathes of San Diego, who insist that "we can work this out in subsequent Conventions." Yes, certainly -- just the way it was "worked out" at GC 2009? Once the power of General Convention to exceed the Constitution is given prima facie recognition -- even if only until the next Convention -- the precedent has been set. Thereafter there is no limit which can be logically set upon its authority.

The leadership at 815 is fond of going into the courts and claiming that diocesan Conventions have "no authority" to enact provisions which contravene the Constitution of ECUSA. Fine, but then why does General Convention have such authority?

This is the current dilemma in a nutshell. Liberals such as Bishop Mathes are incapable of perceiving the dilemma at all, because to their mind and way of thinking, whatever rule "the majority" is for at the moment suffices -- let the "minority" go wring their hands, because "the majority" is currently in power, and the Presiding Bishop can therefore do whatever the majority allows her to do.

Thus, according to Bishop Mathes, a diocese is bound to "accede" to canons which violate or exceed the authority granted to the Presiding Bishop under the Constitution -- while at the same time, the diocese must also "accede" to the Constitution which is thereby violated and trampled. The proposition would make sense only to liberals, who are not confined to the strictures of logic. If a Canon has been adopted which violates or exceeds the Constitution, well, then, it must be legitimate, because "the majority" of General Convention voted for it, and thus it "made the appropriate decision" -- for the time being, at least, until a new majority comes into power.

Bishop Lawrence and his Convention are trying to point out the absurdity of the present situation, in which dioceses and their bishops are being asked to "accede" to canons which violate ECUSA's Constitution, at the same time as they accede to the Constitution itself. As Bishop Lawrence responded to those who asked him just to fall in line, so that his voice may continue to be heard, "If you want our voice, then we're giving it to you."

In pointing out just one flagrant example of how the revised Title IV violates the Constitution, I do not mean to imply that there are not many others -- see this paper from the Anglican Communion Institute for a more comprehensive analysis. The point is that we have a constitutional crisis in ECUSA, and no one but Bishop Lawrence and his Diocese are recognizing that plain fact. If those on the left cannot see what is so plain to those who are versed in the Church's history and canonical law, then there is truly no hope for ECUSA's future. It will descend into a chaos that resembles nothing so much as the years of the French Revolution -- when the "law" was what ever Robespierre and his "Committee on Public Safety" said it was.

Note, by the way, the parallel of Robespierre and his Committee with the revised canons, which also purport to give the Presiding Bishop the authority to command, or even inhibit ["restrict"] another bishop for the "safety . . . of the Community." I kid you not. Here is the text of revised Canon IV.7.3 (remember that the term "Bishop Diocesan" is to be read, in the case of fellow bishops, as "the Presiding Bishop" -- bold emphasis added):
If at any time the Bishop Diocesan determines that a Member of the Clergy may have committed any Offense, or that the good order, welfare or safety of the Church or any person or Community may be threatened by that member of the Clergy, the Bishop Diocesan may, without prior notice or hearing, (a) place restrictions upon the exercise of the ministry of such Member of the Clergy or (b) place such Member of the Clergy on Administrative Leave.
Is that clear? At any time, according to this Canon, the Presiding Bishop may decide on her own that another bishop in the Church constitutes a "threat" to the "good order, welfare or safety" of "the Church, [or of] any person or Community", and proceed, again on her own and totally out of the blue, to restrict that bishop from all further ministry in the Church. The revised canons further provide that the Presiding Bishop (in place of the "Bishop Diocesan") may specify a restriction of any duration (Canon IV.7.5), and may combine the restriction with a "Pastoral Direction" (Canon IV.7.6). Under the revised canons, the restriction is subject to "review" by a panel of three bishops, one priest or deacon, and one lay person; but the Pastoral Direction is not subject to review of any kind whatsoever.

In light of what I have just laid out, please listen again to the words of Bishop Lawrence, addressed to his Diocesan Convention yesterday (emphasis added):
On Tuesday evening of this week as Allison and I were driving home from Sewanee I received a phone call from a fellow bishop. He said that he and five other bishops had received an email earlier that evening from the Presiding Bishop. She was encouraging each of them to speak with me as “the apparent focus of this diocesan gathering does not bode well for [Mark’s] status as a bishop who has sworn to uphold the doctrine, discipline, and worship of this Church.”. . .

Well upon hearing of her email to these bishops I wrote directly to the Presiding Bishop on Wednesday morning addressing many of my concerns and reminding her of the concerns of this Convention; that she had been informed by certified mail of the resolution which expressed our expectation that she remove the attorney unconstitutionally retained within this diocese. I then wrote that after six months we had still not heard from her. While her email in response failed once again to address this concern, she did write of her fear about the havoc that she believes is likely to ensue if I keep on my present course. What she fails to address or I suppose to understand is the havoc that is likely to ensue if we depart from our present course. . . .

Several of those bishops who received the email have called me or sent me emails since that email was sent to them. More than a few of them said, “Mark, we need your voice in the house of bishops. We need the voice of South Carolina.” I said, “This is my voice. You need to understand. This is my voice.” So the question is, “Is there a place for a vigorously stated minority opinion in this church?” I believe it is also the voice of many of the people here in this Diocese of South Carolina. If you want our voice, then we’re giving it to you.


  1. Since there is no mechanism to resolve unconstitutional canons or behavior on the part of Her Most Reverendship, the logical out come of thie DSC Convention is this. HMR will let her kangaroo out of his cage to convene an abandonment of communion court. +Mark will be inhibited for said abandonment. DSC will be forced to withdraw from TEC and re-elect +Mark as Bishop. Having no where elso to go, DSC will join ACNA where they will be welcomed with open arms and hearts. HMR will install one of her lackeys as Bishop of the rump Diocese of SC and file several nuisance law suits just to chew up time and money, one of her favorite activities.

    Please tell me I am wrong.

    Yours in sorrow once again,
    NW Bob

  2. Thank-you for an especially lucid explanation of a complicated issue. I am new to this church and have come to depend on your presentation of the facts and clear logic, especially as they touch on legal matters, for helping me find my way through these dense and contentious matters. But, alas, I am a liberal on many issues, and I have to wonder why you would interrupt such a brilliant and cogent argument by such an ad hominem attack as "the proposition would make sense only to liberals, who are not confined to the strictures of logic." The comma here is important, as I'm sure you recognize. Surely your argument stands too well on its own two feet to need this excursion outside the "strictures of logic."
    But other than that, I will continue to depend on you as the gold gtandard of reason and truth in trying to make sense of our present circumstances, and I sincerely pray for your success in San Joachin, where I and my parish have so much at stake in the ourcome.

  3. Northwest Bob, it is too early to prognosticate as to the future of the Diocese of South Carolina. They have made it clear that --unlike the other four dioceses which have also amended their governing documents -- they are not doing so with the intent of being unable to continue as a diocese in ECUSA. Instead, they are taking the proper route to call ECUSA to account for its unconstitutional acts in General Convention 2009.

    If the Presiding Bishop chooses to escalate matters, by claiming the power to "inhibit" Bishop Lawrence under the canons, then we will have a test of whom the Church will elect to follow: a rogue Presiding Bishop, or a godly diocesan bishop who is doing the best he can to protect his sheep from the depredations of a wolf in sheep's clothing. "By their fruits shall ye know them."

    If Bishop Lawrence stands his ground, then any "deposition" of him by the HoB ought to be capable of challenge for the nullity that it is -- since he will not, by any act of his own, have "abandoned the communion of this Church." Instead, he will have done his utmost to stay within that Communion.

    If ECUSA and its PB nonetheless maintain that the decisions of its PB may not be questioned in any court, then it will have exposed its hypocrisy for all to see. At that point, ECUSA's membership will shrink to just those who are completely comfortable with the "exclusiveness" of ECUSA as defined by the acts of its Presiding Bishop, and the so-called "inclusive" Church will have defined its identity by its exclusion of those who disagree with it.

    That step will, once and for all, expose the Church's inherent hypocrisy: while professing to welcome all and sundry, it in reality welcomes only those who agree with those who have taken control of it.

  4. It has angered the agenda-gospel folks that +Lawrence and DioSC will no longer compromise or play reindeer (or rainbow) games with them, such as Doctrine Determined by Democratic Vote, Compromise, Compliance, Dialogue, Diversity, Tolerance and Generous Orthodoxy, etc.

    However, a valid and important question was raised by TUaD at MCJ:
    Does the Diocese of SC still contribute financially to the support of 815/TEC/GC and thus to the promotion of their false gospel?

  5. It seems to me (not an attorney, though a parent of two) that it is high time to present a case against the current regime abusing canons, taking powers that are not lawfully given them and violating written doctrines - whether there is a majority vote to do so successfully or not.

  6. Jim Doe, you are welcome; thank you for coming here to comment.

    The love of fuzzy logic is not a negative attribute, and I did not mean for it to sound that way. A lot can be done with fuzzy logic, as I explained here.

    All I am saying is that those of us who feel obligated by logic to be consistent should not expect the same of those who prefer to live by the rules of fuzzy logic. Nor should the latter be surprised when they are called to account for their lack of logic in situations which fairly demand its use -- such as in the application of canons to administer ecclesiastical discipline.

    Such a failure can cause great trouble for the Church, as I discussed in this earlier post (and see also this post). While there are lots of uses for fuzzy logic, one place it does not work is in applying written laws.

  7. St. Nikao, the answer to TU&D's question may be found in the latest compendium of diocesan commitments as published by ECUSA's Finance Office.

    As you can see on page 2, South Carolina gave no money to the national Church in 2009, and is budgeted to give just $40,000 in 2010 (0.7% of its income).

  8. Having watched the Upper SC convention yesterday agree to this and any future Title IV change, I remain amazed at how many voting in these conventions do not understand the problems they might create in the future.

    I applaud the DSC for having studied the changes so well.

    Lest anyone forget, the laity missed being subject to these rules by a hair. They can be added easily by some future GC.

  9. Thank-you for your response. I still think you're a little hard on liberals, but I take your point. And I stand corrected on "ad hominem."
    On the main issue, I note with great interest Northwest Bob's comment and your response. This looks like a race to see whether Bp Lawrence can successfully challenge the PB's new-claimed authority before he becomes the victim of it. As I've said before, I'm new to this, but it seems to me that a much larger and more fundamental problem faces ECUSA and the Worldwide Anglican Communion: the breakdown of the Elizabethan settlement itself, which, please correct me if I'm wrong, is kind of the foundational understanding of the whole Anglican communion. Under this "latitudinarian" formula, as I understand it, opposing sides, whether Catholic and Calvinist in Elizabeth's time or conservative and liberal today, must agree to respect each other's right to exist and remain within a tolerable distance (not easy to define) from a common set of beliefs. If either side tries to suppress the other, the settlement breaks down. This was one of the causes of the English Civil War. Today, we have a different kind of war. At our national level, we see a liberal bloc exercising parliamentary and constitutional power to suppress their opponents, conservatives -- even other liberals -- who maintain that a common set of beliefs must center on the Gospel of Jesus Christ, and that love and social justice must follow from that, not replace it. The PB and her supporters have thought this suppression would be successful because they have not imagined that anyone would actually seceed from ECUSA and their authority, much less set up a new province. So they went to war to bring the rebels into line. As Charles I and William Laud used an army, the PB has enlisted an army of lawyers. Meanwhile, the majority of Episcopalians, conditioned to a live-and-let-live attitude in theology, are seeing in Bp Lawrence's experience the viability of that attitude while trying to maintain for one's own diocese fidelity to Anglican teachings. But liberal power under the PB insists on behaving like a cancer, and Bp Lawrence and many thousands of faithful Episcopalians are its host. Finally, they will only survive, and the Anglican Communion with them, by cutting out the cancer, in reverse in this case; ie, by cutting themselves out of it, as ACNA has already done. In the end, the Anglican Communion will survive, its commitment and fidelity to its Lord intact, and ECUSA will die, or, God willing, find a cure when it is ready for one and rejoin the healthy body.
    Until then, Mr. Haley, do you see the upcoming decision of the court in Fresno as having implications for Bp Lawrence, perhaps in the options available for him? As Northwest Bob said, we in ACNA certainly would welcome him with open arms!

  10. Unless I misuse the terminology which follows, we have here, in the microcosm of TEC, a telling analogue of what has been happening in the United States (and most of the rest of the industrialized world) since at least the very early 1960s. It is the triumph of positive legal theory over the Rule of Law.

    The Rule of Law requires, among other things, that all laws must treat any entity brought before the bar as equal to any other such entity accused of the same actions. The law may not discriminate. If a law does not apply equally to all, then it is not consistent with the Rule of Law. Positive legal theory as it has been explained to me, enshrines the idea that the law is whatever a majority of the legislature, absent a veto from the executive, says is the law, irrespective of whether or not all persons subject to the law are treated identically. If I have misidentified the correct terminology, I am confident that our host will rectify my error, but I suspect he will be in general agreement with the undesirability of the sort of approach to law that abandons the Rule of Law.

    If my understanding is correct, what we are seeing, writ on the small scale of TEC, is what we should probably increasingly expect to see occur in the secular laws. It is repugnant to me—the law will no longer be blind, nor just.

    F. A. Hayek wrote fairly extensively about the deleterious consequences of positive legal theory as early as 1963, and the results for the nation will likely be not less, but rather more, deleterious than they will be for the Church.

    Pax et bonum,
    Keith Töpfer

  11. Jim Doe, your latest comment takes the discussion to an entirely new plane. I had not, until I read your comment, related the current troubles to the situation just before the Elizabethan Settlement, but I can see your point, as well as that your point deserves a separate post of its own.

    As for the forthcoming decision in Fresno -- yes, I hope it will provide a meaningful check on ECUSA's unwarranted claims that it, as a voluntary association of member dioceses, is greater than any of them, and may make the association "involuntary" by insisting that once you join as a diocese, you may never leave.

    The decision of the Court of Appeal in Fresno will be followed in short order by decisions from courts in Pennsylvania and in Texas. While ECUSA has to win all three to preserve its arguments intact, the dioceses have to win only once to undermine the sham "hierarchical" theory (as to dioceses) for all future cases. In short, I do not see how ECUSA can win on the battleground it has chosen.

  12. Keith Töpfer, even the positivists recognized that law from a superior body trumped that from an inferior one. They simply claimed that all of the power to legislate was embodied in the people's chosen legislatures, and that "morality" as such could provide no source for law. Hence the law was whatever a majority in the appropriate legislature enacted.

    The current role being played out by ECUSA in the courts does not go as far as a claim of legal positivism -- which in this context, would amount to a repudiation of the 21st of the 39 Articles, by claiming that revealed truth is whatever a majority of orders in General Convention decides it is.

    But you are entirely right in saying that even a General Convention of the Church does not have the authority to contradict Scripture. The latter constitutes God's revealed word to us; a majority has no power to change revealed truth.

    So, yes -- this topic will increasingly become the subject of contention between the two groups.

  13. Very good point re similarities between the U.S. government and ECUSA “government”. I would say; however, that isn’t interesting that what 815 is doing is very parallel/similar to what the Obama administration is doing. What we have is 815 and Shori rewriting “laws” as they go along to satisfy the minority; 815 is gradually giving the PB more powers and when anyone dares to oppose them or disagree with them (be in re same sex marriage, women’s ordination or anything theological), there is a smear campaign and of course they bring in the attorneys. Both 815 and the Obama Administration are examples of the famous line about the frog in the pot of hot water. 815 spends more time and money suing individual Dioceses and parishes for property which they (815) has never contributed to nor holds title too; they spend time preaching about mother earth and global warming rather than bringing people to Christ through the Gospel. It’s no wonder TEC ASA numbers constantly drop year by year. It’s the same in the Obama world – spend more time going after your political enemies rather than making wise decisions to create jobs. Those are the only parallels between ECUSA and the federal government.

    This is especially true considering today's 4th lawsuit against Bishop Iker. Yet another desperate attempt to silence those who don't agree.