Showdown in Salt Lake City

The Diocese of Pittsburgh has just raised the stakes in the coming showdown that will take place at the fall meeting of the House of Bishops from September 17 to 19 at Salt Lake City. At that meeting, as I have explained in an earlier post, Presiding Bishop Katharine Jefferts Schori intends to bring a resolution to the floor to depose the Rt. Rev. Robert Duncan, diocesan of Pittsburgh, from his see on charges that he has "abandoned the communion of this Church" under Canon IV.9.

The problem with her doing this is that she is violating the plain language of the Canon: it provides (with italics added for emphasis) that "the inhibited Bishop . . . shall be liable to deposition," and the Presiding Bishop did not receive the required consents to inhibit Bishop Duncan. Canon IV.9 therefore cannot lawfully be used to depose him, but that fact apparently gives no pause to Presiding Bishop Jefferts Schori or to her Chancellor, David Booth Beers.

Bishop Duncan and his attorney have already objected to the Presiding Bishop's plans to ask the House of Bishops for consent to Bishop Duncan's deposition without a trial, and an objection is certain to be raised from the floor. The parliamentarian for the House of Bishops, the Rt. Rev. John Clark Buchanan (retired diocesan of West Missouri), has not been presented with the question before, because it was not raised during the similar "deposition without inhibition" of the Rt. Rev. William J. Cox at the House of Bishop's meeting at Camp Allen in March 2008. (The discussion about the actions taken at that meeting has primarily focused on the fact that the required "majority of the whole number of Bishops entitled to vote" was not present, and so the vote to depose failed to carry.) How will he rule in the face of the plain language of the canon? If he advises against proceeding under Canon IV.9, will the Presiding Bishop refuse his advice and proceed anyway? And if her ruling to proceed is challenged on the floor, will there be a sufficient majority to overrule her? The applicable Rule of the House is Rule XV of its General Rules:

XV All questions of order shall be decided by the Chair without debate, but appeal may be taken from such decision. The decision of the Chair shall stand unless overruled by a two-thirds vote of those present and voting. On such appeal, no member shall speak more than once without express leave of the House.

Note that the number here is expressly described as two-thirds "of those present and voting" (emphasis added). So we have yet another instance of language from the canons and rules that discredits those who contend that "a majority of the whole number of Bishops entitled to vote" means the same as "a majority of those present." (The phrase "the whole number of" never appears in the Constitution and Canons as a means of describing just those who are present at a meeting.)

Thus if the Presiding Bishop is determined to break the law, and if the Bishops present at the meeting are not inclined to stop her, the odds are overwhelming that those same Bishops will join her unlawfulness in voting to depose Bishop Duncan. This will set the stage for the showdown with the Diocese of Pittsburgh.

Bishop Duncan, in consultation with his Standing Committee, has announced that the date of the Annual Convention this year has been moved forward to October 4 in anticipation that the House of Bishops will (illegally) vote to depose him on September 19. At the Convention, the deputies will be asked to vote on three resolutions that together will have the effect of putting the Diocese under the jurisdiction of the Province of the Southern Cone, and removing it from the jurisdiction of The Episcopal Church.

By moving the date forward, the Diocese of Pittsburgh has ensured there will not be sufficient time for TEC to make any moves to take over the Diocesan machinery following its claim to have "deposed" Bishop Duncan. In the first place, there will be an obvious question as to the validity of any vote to depose, and so just as in San Joaquin, there will remain an uncertainty as to whether Bishop Duncan has been removed from his position or not. (Can't the Presiding Bishop understand that by proceeding in defiance of Canon IV.9, she makes it impossible to claim that TEC has followed its established procedures? Once again, she is hobbling her ability to argue that the Diocese is acting unlawfully, when she is acting just as unlawfully herself.) And should the Presiding Bishop try to repeat her actions in San Joaquin, by declaring that she "does not recognize" the diocesan Standing Committee as the Ecclesiastical Authority in the place of Bishop Duncan, there will be insufficient time to call a rump convention of the dissenters before the group following Bishop Duncan will have taken their vote. So it will be San Joaquin all over again: the Diocese will change its Constitution and Canons, the Presiding Bishop will attempt to "derecognize" the Ecclesiastical Authority and, with the cooperation of the dissenters, call a convention to appoint a provisional bishop. Once such a bishop is in place, he or she will be the figurehead in a lawsuit to recover the churches and their property from those who have left.

Now, before addressing metaphysical arguments about it being impossible for a diocese to remove itself from TEC, and about acts of thievery, let me emphasize the obvious: there are those, already organizing themselves, who as I say will not go along with the ones who vote for the resolutions, and who will remain a part of The Episcopal Church. Thus there will still be enough dissenters left to call themselves a Diocese of Pittsburgh within TEC, and it will be entirely possible to organize them without the necessity of disregarding the canons, as was done in San Joaquin. (For details, see this earlier post.)

The real issue at stake is whether, under the First Amendment's freedom of association guaranteed to us all, a group of people within the territorial area of The Episcopal Church have the freedom to disassociate from it and associate themselves as a group under the jurisdiction of a different church within the Anglican Communion. Stated in that way, the answer appears obvious, does it not? Not even TEC can place limits on the freedom of its members to associate with other churches; all it can constitutionally do (under the United States Constitution) is pronounce such persons (and churches, and dioceses!) no longer constituent members.

People can associate in different legal ways: they can form a partnership, a corporation, or an unincorporated association, to state just a few possibilities. (According to the complaint filed in San Joaquin, TEC is itself an unincorporated association organized under the laws of New York.) I assume the Diocese of Pittsburgh is also an unincorporated association, but in the final analysis it does not matter. As long as it follows Pennsylvania laws in amending its Constitution and Canons, at a duly called meeting of its deputies at which a defined quorum is present, the First Amendment of the U.S. Constitution guarantees that it has the right to do so, and the Constitution of TEC can have nothing to say about the matter. For if GC2009, or some other General Convention, were to try to adopt an amendment to TEC's Constitution saying that "no diocese of this Church shall have the power to amend its Constitution or Canons so as to deaccede from the Constitution of this Church," such an amendment could not be enforced without violating the First Amendment's freedom of association guarantee. That Amendment has long been read to mean that neither the federal government nor any State can dictate how people shall organize themselves, and thus---just as in the cases involving racial covenants--- TEC would not be able to get a State court to order a diocese to "unamend" its Constitution and Canons. The most you can constitutionally do (and TEC has done this), is to specify how people have to organize themselves if they want to be part of your organization.

So I really do not care to entertain arguments about how "a diocese (or parish) cannot leave this Church": they can, indeed, and TEC cannot constitutionally prevent them. But as a practical matter, there will always be dissenters left behind to pick up the pieces and carry on as the diocese (or parish) in question, so in the end there will be no outward change---except in the numbers, and in the properties. (Ah, the properties! A complex subject, because there are so many different State laws and precedents, and deserving of several posts---here's one, for starters. Suffice it for now to say that accusations of theft and stealing are grossly over-exaggerated, as well as ridiculously oversimplified.)

Reduced to its bottom line, then, what we will see in Salt Lake City is whether TEC is prepared to follow and observe its own canons, or whether it will make up, on the spot, law to suit its temporary ends. If it takes the latter step, its lawlessness will be plain for all to see. It will also serve as its own kind of justification for the actions that will be taken two weeks later at Pittsburgh. (What seeker of justice has to remain part of a Church that cannot follow its own laws?)

At that point, I can safely predict that a 21st-century Reign of Terror will begin in TEC, with the remaining orthodox Bishops deposed in short order. It will be done with or without inhibiting them, for what will it matter to the lawless ones at that point? Nor will it matter whether there is a sufficient majority to vote for the depositions; they will be pronounced as having carried (by a voice vote), and none will challenge the chair. Mr. Beers will have his associates busy filing new suits in Pennsylvania, Texas and Illinois, and instead of calling it The Episcopal Church, people will be entitled to call it "The Ejecting Church", or maybe "The Eroding Church," or even more simply, "The Plaintiff Church."

This is where a scorched-earth policy will take TEC. Is that what the assembled Bishops in September really want? Maybe they haven't thought about it---but now I've spelled it out, and it's not all that difficult to see. There is still time for an alternative track to be explored, which would involve a serious (and substantive) implementation of Alternative Episcopal Oversight, with guarantees to file no more lawsuits, and to dismiss those now pending. Can they come together to discuss this at Lambeth? It's a perfect opportunity, since both the Presiding Bishop and Bishop Duncan will be there.

I have to admit that the likelihood of any such discussion taking place is vanishingly small. And that is what strikes me about the inevitability of the coming destruction. It's as though the Presiding Bishop and her cohorts are truly deaf to cautions that they should not proceed any further down this road. Is it a case of "hardening her heart," as happened long ago with Pharaoh and his resistance to the Israelites' attempts to leave his country? The consequences for TEC may be less devastating than they were for Egypt, but they will be just as bleak: years and years of lawsuits, gazillions in legal fees, and a highly uncertain outcome. The Bishops gathered at Salt Lake might want to reflect before they choose such a future.