With the notifications to the Fort Worth Seven and the Quincy Three that they have been charged with violations under the New Title IV which the "Intake Officer", the Rt. Rev. F. Clayton Matthews found to be credible (i.e., he regarded them, "if true," to constitute "an Offense" under the canons), ECUSA has finally laid bare this latter part of its agenda.
The charges are both bizarre and ludicrous -- indeed, it may well be that the words sufficient to describe their twisted lunacy have not yet been invented. Forever after this moment in canonical history, canon lawyers will have to refer to them by some kind of recognized shorthand. Perhaps it will be by a name which links them to the one person under the new Title IV who is charged with acting responsibly: Bishop Matthews. As the "Intake Officer", he is supposed to use his own judgment and discretion to keep spurious charges from ever seeing the light of day.
It may be, therefore, that we shall have to refer to such excresences on the canonical body hereafter as "Matthewsian"(along the lines of "Malthusian", a similar term which now carries a certain opprobrium), or "Claytonian." I don't know at this point -- I throw it our there; but I am open to further suggestions. See what your fertile minds can come up with after you have read and absorbed the utter folly and disgrace of what I shall now proceed to tell you.
First, recall the basic background. In the Quincy litigation, Bishops Beckwith, MacPherson and Salmon filed affidavits with the trial court in opposition to the motion for summary judgment brought by ECUSA and its puppet plaintiff, which argued that no diocese can ever leave the Church. The motion eventually failed, as I reported in this earlier post.
The trial judge did not refer to any specific affidavits in his ruling. He did, however, note that the attorneys for ECUSA argued he should disregard them all as "merely the ... opinions of a minority, dissenting faction of church Bishops." Please note that was ECUSA's characterization of their views, not the trial judge's. (As he pointed out, he is not allowed to weigh the evidence on motions for summary judgment, in any event. He merely takes each side's evidence as it is offered, and determines whether there are any facts in dispute that will require a trial to resolve.)
In the Fort Worth litigation, Bishops Benitez, Howe, Lambert, Love, MacPherson (again), Martins and Stanton joined three clergy members of the Anglican Communion Institute in submitting an unusual amicus brief to the Texas Supreme Court. The brief was unusual in that it did not ask the Court to resolve the case upon "neutral principles of law," which was the main argument put forth by Bishop Iker and his attorneys.
Instead, it argued that if the Court were to retain the nineteenth-century "deference standard" as the law of Texas, it should not look any further than the diocesan bishop for that deference. That person, the brief noted, holds the highest position having the final say on the interpretation and application of the Church's constitution and canons in his diocese. (For contemporary illustrations of this point, see the interpretation recently promulgated by Bishop Mark Lawrence, or the statement of Bishop Shaw on gay marriage in his diocese, or the court's decision in the Dixon v. Edwards case -- at page 717.)
To go into questions of the unwritten powers of General Convention, or the Executive Council, or the Presiding Bishop would be to enter a tangled thicket of church polity and governance, since there are no provisions in any of the Church's foundational documents which confer any adjudicatory powers upon those entities. Due to the lack of any clear written provisions, the brief argued, the courts would inevitably cross the First Amendment line if they tried to resolve the dispute by going beyond the clear outlines of diocesan authority.
From this short sketch, you can see that both groups of bishops were arguing in essence the same point, only in different ways: yes, the Episcopal Church (USA) is hierarchical, but only up to the diocesan level. Such a hierarchy means both that dioceses are free to leave the unincorporated association that is ECUSA, and that diocesan bishops have the final authority to interpret the Church's governing documents within their dioceses.
Naturally this position did not sit well with either the Presiding Bishop or her Chancellor, who are in the midst of a multi-million dollar litigation program designed to get the courts to back her as the Church's highest authority. But while the governing documents (as far as they go) clearly back the bishops' position, the only thing backing the Presiding Bishop's position is ECUSA's vast millions of dollars in trust funds, and a compliant and feeble House of Bishops who is unwilling to rein her in.
Enter Bishop F. Clayton Matthews onto the scene, after he received written charges against the bishops from Episcopalians in Fort Worth, New Jersey and Illinois. He found that if the facts alleged were true (and who can dispute the facts? the brief and the affidavits were certainly filed, and they say what they say), then the bishops charged would most likely have committed an "Offense" under the Title IV Canons -- with the full panoply of disciplinary strictures available to the various panels of the Disciplinary Board.
Now let us look at the particulars of these "charges" under Title IV. Most of the conduct which can constitute an "Offense" is catalogued in Section 1 of Canon IV.4. The first charge I want to consider is one that claims the bishops violated subsection (e) of Canon IV.4.1, which reads:
CANON 4: Of Standards of Conduct
Sec. 1. In exercising his or her ministry, a Member of the Clergy shall:Do you see the utter folly of this charge? Because the bishops filed a legal argument in their respective courts, in full exercise of their First Amendment rights, they are said by that act of speech to have failed "to safeguard the property and funds of the Church and Community."
(e) safeguard the property and funds of the Church and Community ...
Never mind that it is for the courts to decide whose property and funds they are; the bishops must "safeguard" them by remaining silent! In other words, according to these "charges," to speak out is to endanger those funds and property.
Well, if you can endanger the "property and funds of the Church and Community" by speaking out instead of remaining silent, does that not indicate the rather precarious -- nay, specious -- nature of the claim being made to those property and funds in the first place?
And just what is this "Community", anyway, who holds title to the funds and property? Certainly the national Church holds no legal title to anything; as a mere common-law association of dioceses, the law does not recognize "the Church" as an entity capable of holding legal title to property.
Were this a criminal statute, the use of the undefined and unspecified term "Community" would render this Canon void for vagueness. As it is, the bishops should simply argue that the "Community" whose funds they were indeed safeguarding was the "Community of the Faithful, who continues to hold the faith once delivered to the saints." (We shall return to this term "Community" in a moment.)
So much for "violating" Canon IV.4.1 (e) -- but we are just getting started here. Take a look at the next set of so-called "violations", which have to do with failing to observe the Constitution and Canons, along with the vows given at ordination. Each bishop is said to have violated these parts of Canon IV.4, Section 1, by failing to --
(c) abide by the promises and vows made when ordained; [and]
(g) exercise his or her ministry in accordance with applicable provisions of the Constitution and Canons of the Church and of the Diocese, ecclesiastical licensure or commission and Community rule or bylaws ...(As an aside at this point, notice how the word "Community" is used in section (g): as most people would understand it. It refers to an organized ecclesiastical community such as a monastery, which operates under a "Community rule." It does not refer to any other part or subgroup of the Church, such as a member diocese.)
Let's see -- the "promises and vows made when ordained." When most of these bishops were consecrated, under the rubrics of the 1928 Book of Common Prayer, they each took vows as follows:
The Presiding Bishop.
ARE you persuaded that the Holy Scriptures contain all doctrine required as necessary for eternal salvation through faith in Jesus Christ? And are you determined out of the same Holy Scriptures to instruct the people committed to your charge ; and to teach or maintain nothing, as necessary to eternal salvation, but that which you shall be persuaded may be concluded and proved by the same?
Answer. I am so persuaded, and determined, by God’s grace.
. . .
ARE you ready, with all faithful diligence, to banish and drive away from the Church all erroneous and strange doctrine Contrary to God’s Word ; and both privately and openly to call upon and encourage others to the same?The complainants will no doubt point out that the bishops also signed the Oath of Conformity upon ordination, that is, they vowed to conform themselves "to the doctrine, discipline and worship of this Church." But which takes precedence here? Does the latter vow require all clergy to submit themselves to "discipline" by remaining silent in the face of "all erroneous and strange doctrine"? Is the "discipline of the Church" higher than "God's Word", including the "Discipline of Christ" (as the current ordination vows have it)? The question answers itself.
Answer. I am ready, the Lord being my helper.
And now, turn to the charge under subparagraph (g) -- that filing the brief and affidavits was a failure to "exercise [their] ministry in accordance with ... the Constitution and Canons of the Church and of the Diocese ...". Where in any of those provisions will you find language that applies to the acts of the Quincy Three, or the Fort Worth Seven? Search them; you will find none.
The complainants will no doubt try to fall back on the highly general language of Canon I.17.8 about "well and faithfully perform[ing] the duties of their office ...". Once again, however, they would overreach in doing so. For that Canon is headed: "Of Regulations Respecting the Laity". Bishops are not "laity."
So the charges under IV.4.1 (c), (e) and (g) are baseless. But that doesn't stop the complainants from throwing in the kitchen sink, or stop Bishop Matthews from approving that tactic. For in parallel with "failing to exercise their ministry in accordance with" the national and diocesan Constitution and Canons, why not charge the bishops with violating Canon IV.3.1, too? That section says:
Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for:What could possibly be the canonical difference between failing to act in accordance with the Constitution and Canons, and knowingly violating or attempting to violate them? I suppose the former might cover the case when one violates a canon out of ignorance or carelessness, but it makes no difference here. As we just saw, there is no provision in any of those governing documents which the bishops' actions could conceivably have violated -- knowingly or not.
(a) knowingly violating or attempting to violate, directly or through the acts of another person, the Constitution or Canons of the Church or of any Diocese ...
And then we come to a real corker: the bishops next are charged with failing to self-report their own supposed "violations"! The complainants charge them with transgressing Canon IV.4.1 (f), which makes a member of the clergy liable for neglecting to:
(f) report to the Intake Officer all matters which may constitute an Offense as defined in Canon IV.2 meeting the standards of Canon IV.3.3, except for matters disclosed to the Member of Clergy as confessor within the Rite of Reconciliation of a Penitent ...The complainants think that the bishops ought to have turned themselves in of their own accord after filing their papers with the courts! Or, at the very least -- since the exception for matters disclosed under confession seems to indicate that the Canon addresses only the conduct of others, and not of oneself -- then the bishops are being held accountable for not squealing on each other!!
Can you see how ridiculous and idiotic all this is? Well, as they say out West, "You ain't seen nothin' yet."
The final three charges are indeed the most twisted and outrageous of all. The first is the catchall provision for "Conduct Unbecoming a Member of the Clergy" (Canon IV.4.1 [h] ), which is defined in Canon IV.2 as:
any disorder or neglect that prejudices the reputation, good order and discipline of the Church, or any conduct of a nature to bring material discredit upon the Church or the Holy Orders conferred by the Church."Disorder or neglect"? Really?? Is filing a brief with a court on the same order as getting into a drunken brawl in a pub? Apparently it is, in the eyes of these accusers -- and don't forget: of Bishop Matthews, as well.
Or did the filing of the briefs and affidavits bring "material discredit" upon the Church, or upon the bishops' Holy Orders? Again -- really, really? What about the four other bishops who signed an amicus brief filed in the appeal of Good Shepherd, San Angelo? Did they bring material discredit upon the Church or their Holy Orders? And if so, why not?
By sorting out the charges in this way, we see that the gravamen of the complaint is not the speaking out in court, but rather the content of what the bishops said.
File a brief in favor of the Presiding Bishop's outlandish claims, and you are fine with the Disciplinary Board. But woe unto you if you express any public views in disagreement with our Most Reverend Presiding Bishop.
Which means that all these charges -- brought just because of what the bishops wrote and said -- violate the most fundamental privilege of going before any court in the land: people who testify in court are absolutely privileged for what they say on the stand. The only thing they can be prosecuted or held accountable for is perjury -- knowingly lying under oath about a material fact that is in issue before the court.
So, did the bishops really perjure themselves in going before the courts in question? Apparently Bishop Matthews and his complainants think so, for they have also charged the bishops with a violation of this provision of Canon IV.4.1, namely subsection (h) (6) (quoted with my emphasis):
CANON 4: Of Standards of ConductSo now it has come to this. The bishops are accused not only of disagreeing with the public stance of our Most Reverend Presiding Bishop, but in doing so they committed a fraud upon the court!
Sec. 1. In exercising his or her ministry, a Member of the Clergy shall:
... (h) refrain from:
... (6) conduct involving dishonesty, fraud, deceit or misrepresentation ...
Or in other words, the complainants think that they did commit perjury! (Except that such a claim could apply only to the Quincy Three, because only their statements were made under oath, in their affidavits.) But if that is what they think, they are in front of the wrong tribunal.
You know, with this charge the complainants have gone over the top. They had better be mindful themselves of the part of Canon IV.3.1 which I did not quote above, namely subsection (b):
Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for:If there ever was any such thing as a false accusation, brought intentionally and maliciously, it is this charge of committing deceit and fraud upon the courts. The disgrace is that any such fraud, if committed, is punishable by the court itself, in the first instance. A court of law is equipped to investigate and decide such a charge. And it would be only then, if the court found that a fraud was committed upon it, that disciplinary proceedings would be proper against any member of the clergy found first by the court to have committed a fraud upon it.
(b) intentionally and maliciously bringing a false accusation ... in any investigation or proceeding under this Title.
Proceeding in this manner attempts to usurp the jurisdiction of the courts, and my prediction is that if and when the courts in question find out about these attempted disciplinary proceedings based on such a charge, they will not be happy with the attempts, by certain parties in the case before them, to intimidate or silence their adversaries from testifying, under threat of being held liable for "fraud or misrepresentation."
And so now we come to the final charge -- admittedly described by Bishop Matthews as only a "possible" violation, and so you know already that even he has doubts about its validity. Under subsection (h) (2) of Canon IV.4.1, this "violation" consists of the
(2) holding and teaching publicly or privately, and advisedly, any Doctrine contrary to that held by the Church ...In light of the holdings of the ecclesiastical court in the Righter trial, this charge is the most dubious of all. That court cited an earlier decision in the heresy trial of the Rt. Rev. William Montgomery Brown, decided in 1925, to this effect (with my emphasis added):
The doctrine of this Church is fixed by the whole Church, acting in its corporate capacity, and not by the individual opinions or interpretations placed upon any documents supposed to contain the Church's doctrine, by any bishop, priest or deacon speaking individually . . . .
The question has been asked by counsel as to where the doctrine of the Church is to be found. In reply the Court expresses its opinion that such doctrine is to be found in the Book of Common Prayer as adopted and established by the Constitution of the Protestant Episcopal Church in the United States of America. It is perhaps superfluous to state that the most important formularies of doctrine are the Apostles' and the Nicene Creeds.So neither the Presiding Bishop, nor her Chancellor, nor Bishop Ohl, nor Bishop Buchanan nor any individual purporting to speak on behalf of the Church may establish thereby what its Doctrine is. And furthermore, what Doctrine the Church has is to be found in its Book of Common Prayer. There is, of course, no statement of any "doctrine" about Church polity to be found in that Book, and to claim otherwise is egregious overreaching.
In conclusion, these "charges" never should have seen the light of day. One might forgive the lay complainants for the sheer ignorance of the canons which they belie, but one cannot excuse the motives of the bishops involved in bringing them -- especially, as I say, Bishop Matthews, whose duty it is to make an objective judgment as to whether they actually amount to anything substantive. After all, Canon IV.3.3 imposes upon him and the entire Disciplinary Board the following limitation (with my emphasis added):
In order for any conduct or condition to be the subject of the provisions of this Title, the Offense complained of must violate applicable provisions of Canon IV.3 or IV.4 and must be material and substantial or of clear and weighty importance to the ministry of the Church.
These charges are exactly the opposite. They have nothing to do with the ministry of the Church. Their artificiality and hubris instead reek of personal revenge and vendetta, and for bishops to sign onto them should in itself amount to "Conduct Unbecoming."
But then we must remember -- as the 18th-century novelist and clergyman Laurence Sterne said in one of his sermons:
Look into the world—how often do you behold a sordid wretch, whose straight heart is open to no man's affliction, taking shelter behind an appearance of piety, and putting on the garb of religion, which none but the merciful and compassionate have a title to wear.