Sunday, September 14, 2008

Why Do the Canons Matter?

An Answer to the Rev. Canon Mark Harris and the Rev. Canon Elizabeth Kaeton
(in two parts): Part I

A number of liberal bloggers, among them the Rev. Canon Mark Harris at Preludium and the Rev. Canon Elizabeth Kaeton at Telling Secrets, seem to be unable to understand what all the fuss and bother is over the tactics currently being employed to ensure that the House of Bishop deposes the Rt. Rev. Robert Duncan before the Pittsburgh diocesan convention on October 4. To them, Bishop Duncan has been shown to be guilty of "abandonment of Communion" without a trial, and there is no need to be disturbed about whether he is deposed now or later. (UPDATE 09/15/2008: The Rev. Tobias Haller now adds his two cents, and makes it a trio.) But rather than speak for them, let me quote their own words. First, Canon Harris (whose typos I reproduce as is, with the appropriate notation "[sic]", lest I be accused of misquoting him [or the Property Task Force]):

The charge that this is a "trial without a trial," is really about the argument that abandonment of communion can only be declared if the accused has indeed left the building and that otherwise there has to be an ecclesiastical trial. That is, if [sic] abandonment only works if the accused has already walked out.

This is contested by the Property Task Force, which on September 8th, indicated that, "... the Canons of The Episcopal Church (2006) defines [sic] abandonment as the “open renunciation of the . . . Discipline of . . . this Church.” He has conclusively admitted doing so in sworn statements quoted below. It is not necessary that he have formally joined another Church, merely that he have renounced the discipline of this one to constitute an abandonment within the meaning of the Canon.

Furthermore, even if he has joined a Church in communion with this Church, it alters not the least [sic] that he has abandoned the communion of “this Church,” and as his admissions indicate, the real crux of the matter is that he is encouraging and actively leading communicants of this Church to do so."
The contention that Bishop Duncan will leave the building is well founded. It [sic] question seems to be "when." When does "if" pass to "when?" We are not dealing with the possibility that Bishop Duncan will not leave the building. We are only dealing with when. In this sense the bishops are dealing with an extraordinary situation and it does Bishop Duncan's case no good for him to be absent and for him to declare the whole matter a put up job.

The Property Task Force concluded that the determination to abandon the union of the General Convention constitutes reason to declare him to have abandoned the discipline of this Church. The Task force concludes, "The dots are all connected. Bishop Duncan has very carefully planned and executed a strategy to remove the Episcopal Diocese of Pittsburgh, as well as its assets and the assets of its parishes sympathetic to his viewpoints, from TEC. At this point, there is no doubt that Bishop Duncan has left The Episcopal Church.

The one and only question before the House of Bishops at this point is whether or not we allow Bishop Duncan to do irreparable damage to the Body by ignoring the reality of the situation."

I buy that argument.
The Rev. Canon Kaeton buys that argument, too, and in commenting over at BabyBlue's blog, she cannot understand what those of us who are strongly protesting the canonical violations are so upset about:

Baby Blue - I don't get it.

I don't get the apoplexy over Bishop Duncan's inevitable deposition. If not in September then, surely, after his diocese votes the second time to leave TEC in October. There is already abundant evidence, amply provided by Bishop Duncan himself, that this is what will, in fact happen. It's just a matter of time.

And, if he leads his diocese in this vote, it will mean his deposition. It has to. Surely, as someone who follows "the letter of the law" of scripture, you understand the "letter of the law" of the church.

So, help me understand, please, as your sister in Christ, why the wailing and gnashing of teeth and renting [sic!] of garments?

I'm really trying to understand.
Bloggers in response took up Canon Kaeton's challenge, and told her about "due process" and the fate of tyrants who abuse the law, but she was having none of it. Before she came over to BabyBlue's, she had posted this on her own site:

Stoopidity 101

. . .
Question #1: Why is it that people who have professed to have "left TEC X# of years ago" are still hooked into Episcopal/Anglican blogs?

Question #2: If you've "left" TEC, why do you still care? Except, of course, that you still do. (Note to self: You left Rome more than 40 years ago and you still read National Catholic Reporter.) New question: Can you ever leave the church you once loved?

Question #3: Memo to self: Why do you bother to read so-called "orthodox blogs" or send people to read them?

Question #4: Why do people gawk at accidents, train wrecks and watch reality shows?

Queston #5: Isn't the deposition of Bob Duncan and Jack Leo Iker as much a fait a compli [sic] as the deposition of John-David Schofield?

Question #6: So, why is this news?

Question #7 (last one, I promise) Why do I care?

With apologies and prayers for the Church.
One may perhaps be forgiven for wondering whether the Rev. Canon Kaeton, in light of her disdainful title and her rhetorical questions, is really interested in understanding what all the fuss is about. On the assumption, however, that both she and the Rev. Canon Harris are rational, intelligent persons who care deeply about the Church to which they have committed themselves, I am going to presume that I can explain it to them. Who knows---perhaps I can learn something in the process.

And that should be the beginning of all rational dialogue. People who are intelligent, and committed to their beliefs, can agree to come together on the common ground of reason to see whether they can understand the basis for each other's beliefs. So, Mr. Harris and Ms. Kaeton, are you ready? Because here we go . . . .

Let us start, if we may, with a text. As ministers who are trained in the principles of exegesis, I should think this would be familiar ground for you. In looking at the following text, I would respectfully request that you suspend for the moment everything you think you may know about the particular case of the Rt. Rev. Robert Duncan. I would like first to develop the exegesis of this text without regard to its application to any given case. The text is, of course, that of Canon IV.9 of the Canons of The Episcopal Church, entitled "Of the Abandonment of the Communion of This Church by a Bishop." You may, if you wish, consult the text at any time in this discussion by clicking on this link, but it is not necessary that you do so immediately, for I wish to focus first on the Canon's title.

This Canon, according to its official title, addresses the topic of when a Bishop of this Church abandons "the Communion of This Church." So we obviously would like to inquire into just what is meant by "the Communion of This Church", i.e., of The Episcopal Church. Think about that for a minute---would it most likely refer to "the Communion" in the sense of "the service of Holy Eucharist as authorized by The Episcopal Church's Book of Common Prayer"? Or does it more probably refer to a more abstract concept, such as "the Communion" that The Episcopal Church shares with others, as in the phrase "the Anglican Communion"?

Reason and common sense should tell us that it does not refer to Communion in the narrower sense of "the Holy Eucharist." What would it mean to charge a Bishop of this Church with "abandonment" of the Holy Eucharist---that he had left the service during the Prayer of Consecration because of a pressing need elsewhere? Since the punishment for violation of this Canon is deposition from episcopal office, such an interpretation would be, I hope you would agree, on purely rational grounds, out of proportion to the offense.

All right, then, it would appear that the Canon must be referring to "Communion" in the wider and more abstract sense of the word. Before we delve into its specifics to see whether our first intuition is borne out, perhaps we could invoke an additional and very traditional line of exegetical inquiry, and ask: "What was the occasion of this Canon being written, i.e., adopted in the first place as a Canon of the Church?

You will find the answer to that question at this post. It was adopted for the first time in 1853, and was occasioned by the abdication of his see by the Rt. Rev. Levi Silliman Ives of the Diocese of North Carolina in order to join the ranks of the Roman Catholic Church. So this confirms our intuition. Bishop Ives did not just abandon the service of Holy Eucharist, but he abandoned this Church, or rather its predecessor, to go elsewhere in Christendom.

But where in Christendom? The Roman Catholic Church. Was "this Church" in "Communion" with the Roman Catholic Church? Not at any time since the Elizabethan Settlement. So now we begin to get a glimmer of what this Canon must be about. Let us now turn to the Canon's definition of just what constitutes "abandonment of the Communion of this Church." As originally enacted in 1853, it read:
In all cases where a Bishop, Presbyter, or Deacon of this Church . . . has abandoned her Communion or shall hereafter abandon it, either by an open renunciation of the Doctrines, Discipline and Worship of this Church, or by a formal admission into any religious body not in Communion with the same: such Bishop, Presbyter, or Deacon shall be held, ipso facto, as deposed to all intents and purposes . . . .
This is pretty clear, is it not? Starting with its adoption in 1853, "abandonment of the Communion of this Church" was defined as "an open renunciation of the Doctrines, Discipline and Worship of this Church, or by a formal admission into any religious body not in Communion with the same . . ." (italics added).

So we come to our first exegetical conclusion: since Bishop Ives was charged with "abandonment" under this version of the Canon, for joining the Roman Catholic Church, and since the latter Church was not "in Communion" with the predecessor of The Episcopal Church at the time, the sense of the word "Communion" as used in the Canon when it was first adopted must have to do with the relationship of The Episcopal Church with those churches with whom it did consider itself "in Communion" at the time.

And notice, please, how the two parts of the 1853 definition of "abandonment" were complementary. For to join a church that was not "in Communion" with this Church was to become subject to some other church's "Doctrine, Discipline and Worship", and so was at the same time a renunciation of the "Doctrine, Discipline and Worship" of this Church.

You can, if you think it essential to reviewing the basis for your viewpoints that were quoted at the outset of this post, trace the entire subsequent history of the evolution of Canon IV.9 by reading the post I have already linked, or by going to any other source you may wish to consult on the history of the canonical language, such as Messrs. White & Dykman. But for present purposes, since the charges against Bishop Duncan are focused, as Canon Harris reports, on his "open renunciation of the . . . Discipline . . . of this Church" (italics added), I submit that such a complete review of the Canon's legislative history is not necessary. Because unless something occurred to require a change in the original definition of "abandonment" in this regard---that is, abandonment as consisting of "an open renunciation of the Doctrine, Discipline and Worship of this Church" by submitting to the "Doctrine, Discipline and Worship of a Church not in Communion with this Church", then what was intended by that language in 1853 should still have reference to something similar in 2008.

Well, let us now bring Bishop Duncan into the picture, and consider just what he has done that constitutes, in your view, "abandonment . . . of the doctrine, discipline and worship of this Church":

1. Has he joined, or announced his intention to join, the Roman Catholic Church? No.

2. Has he become an avowed follower of some pagan group, such as the Wiccans, or the Druids? No.

3. Has he joined any Church that is not in Communion with this Church? No, he is still celebrating Episcopal Holy Eucharist with his congregations in the Diocese of Pittsburgh.

But apparently, in your view, his declared intention to support his Diocese's decision to affiliate with a different group within the Anglican Communion constitutes all the proof that is necessary to convict him of "abandonment of the Communion of this Church."

The Episcopal Church has not, to my knowledge, either through a resolution of the Executive Council (of which you, Canon Harris, are a member), or through a resolution adopted at General Convention, declared itself "out of Communion" with the Province of the Southern Cone. So where, pray tell, do you derive your assumption that to affiliate with the Province of the Southern Cone is to "abandon the Communion of this Church"? Such a reading of Canon IV.9 has never before in its history, prior to its much disputed applications to the cases of Bishops Cox and Schofield (which are currently in the courts), been applied to a Bishop who was transferring his jurisdiction to another province within the Anglican Communion.

Accordingly, that Bishop Duncan has advocated his Diocese's affiliation with a different province of the Anglican Communion may be a possible criticism of his conduct, viewed in isolation as a Bishop of this Episcopal Church (if one disregards the doctrinal differences that led to his acts), but it is a non-starter in terms of charging a violation of Canon IV.9.

Now can you begin to comprehend the outrage that those of us who adhere to the Canons feel when you say that Bishop Duncan is already guilty, without having done anything to depart for a Church not in Communion with this Church, of violating Canon IV.9? If you freely admit that you cannot, then I urge you to clear (empty) your mind and to back up, and to start reading this post over from the beginning with an honest conscience and an open mind. Because I submit that as a professedly rational person, you cannot rationally hold the view, after honestly engaging in the foregoing straightforward exegesis, that Bishop Duncan can still be charged with violation of the Canon as it was adopted and originally intended. Nor, given the facts of the case, can you charge him with "abandonment of the Communion of this Church" as the language of the Canon has come down to us, without substantive change, to today.

(Part II of this Response may be read here.)


  1. The interpretation of "this church" is of importance is it not?

  2. Mr. Hartley, the phrase "this Church" is explained in Art. I of the Constitution as referring to "The Episcopal Church", or its longer name, "The Protestant Episcopal Church in the United States of America."

    What I find most interesting is that the drafters of Canon IV.9 used the phrase "the Communion of this Church," and so they had to have something in mind to which the word "Communion" had to refer. It has to be something that is larger than and outside of just The Episcopal Church, because they easily could have drafted a Canon that dealt with "abandonment of this Church." But they did not, and I submit it was because "this Church" (i.e., TEC) has always been seen as taking its identity from the larger Communion of which it is a constituent part.

  3. Even were I to accept your reading of the canon as a reference to "the Anglican Communion" rather than the communion of "this Church" -- since it is possible to be in communion with TEC and yet not part of the Anglican Communion (v. the ELCA), and the same goes for Porvoo with the C of E -- still, the problem for Duncan is that he is now affiliated with a group of churches that are not part either of the Anglican Communion, nor in communion with TEC. He notes this affiliation with some pride in his "retraction" statement. If this were a mere outreach, akiinh to being on the board of a local Council of Churches, that would be one thing; the fact is Duncan is part of an alternative body -- alternative to "this Church" -- and he has said as much. This is why he is not in communion with TEC.

    As to due process, it would be very simple for him to state, "I remain in full communion with the Episcopal Church, its Presiding Bishop and other Bishops." As a man of conscience, he cannot bring himself to make this affirmation.

  4. Thank you for your comment, Fr. Haller. Your contribution to this dialogue is most welcome.

    Like you, I can grant you your premise without undermining my point---Bishop Duncan has assumed the leadership of a group of Churches that are not in Communion with TEC. However, he remains for the present the incumbent of the see of the Episcopal Diocese of Pittsbugh, and as such is in full Communion with TEC, and the Anglican Communion. And what the Presiding Bishop and the Title IV Review Committee have charged him with is not his affiliation with CCP, but with lending support for his Diocese's plans to associate with another province of the Anglican Communion. As I argue in the post, that act, even when fully accomplished, cannot be the basis for charging a violation of Canon IV.9.

    (You cite examples of how it is possible to be "in Communion with" a Church without also being in Communion with the group of which it is a constituent part. Fair enough. But I take it you would not contend that the kind of relationship that exists between TEC and ELCA is the "Communion" that the drafters of Canon IV.9 had in mind when they came up with its language in 1853.)

    As to Bishop Duncan's affirmation that he remains in Communion with this Church, he said in his letter to the Presiding Bishop last March that "I consider myself 'fully subject to the doctrine, discipline and worship of this Church.'" While that is not the exact wording that you call for, it is pretty much the same thing.

    The violations of due process in the bringing of a resolution, to consent to the deposition without a trial of a bishop who has not been inhibited, and to be voted on by a number of bishops far less than that required by the plain language of the canon, are beneath the dignity of TEC's leadership, and serve only to belittle them in the eyes of all fair-minded persons. If they cannot be troubled to follow their canons in this instance, with all of the advance warnings and discussions that have occurred on this topic, then they have no high ground whatsoever to claim. They might as well constitute themselves a Court of the Star Chamber, and be done with it.

  5. I am happy to contribute to this discussion in part because I am in some sympathy with a stricter interpretation of the canons. But that interpretation must be informed by a wider reading than mere reliance on the 1853 version. There have been significant changes since then. Most importantly, the issue of the 3 senior bishops -- whose function was clearly replaced by the Council of Advice, and later by the Review Committee, and whose continued presence in the canon is clearly an error. (Even the idea of seniority was different back in 1853 when the PB was simply the longest serving bishop).

    As to our communion with ELCA, it is now complete, and is actually quite similar to many plans of union on the table in the 19th century. But again, an antiquarian approach is not helpful: the present Canons make it clear that TEC is in full communion with the ELCA. (I.20.2) This does not make ELCA a member of the WWAC, any more than the C of E's relationship under the Porvoo Agreement means that TEC is in communion with those churches.

    Duncan's plans will lead his diocese out of TEC. Whether it is into some illegal (under its own Canons) arrangement with the Southern Cone, or into the mix of Common Cause (not part of the WWAC) -- in either case the principle fact is that these are bodies that reject communion with TEC. That is, after all, the whole point, isn't it? It is, contrary to your argument, communion with "this Church" -- that is, The Episcopal Church -- which is at issue. Duncan may be by the end of this week deposed from the ministry of "this" same "Church." He may well continue to function as a bishop in or of Southern Cone, or Common Cause, or his own version of "The Episcopal Diocese of Pittsburgh (not part of TEC)." Or the House may vote otherwise. I also agree that the reading of the canon to allow this to happen by a smaller number of bishops than was originally intended is an unfortunate development -- one which ought to have been addressed long ago. But the precedent for this procedure was set decades ago, not under the present administration. Sadly, without a Supreme Court to make decisions on such matters, the House itself is the last court of review for its own actions, pending the next session of GC, at which point I have urged we excise the "abandonment" canon entirely (both for bishops and other clergy), as I agree it is open to abuse.

  6. Begging your patience, a second point regarding the "retraction." Stating one is "subject" to the laws of the church is not the same thing as "being in communion." Duncan is an intelligent man, and a man of conscience, and he knows the difference. I respect that in him. But that is why he did not say that he remains in full communion with TEC and its bishops. He doesn't. He has abandoned that communion, and is seeking to establish an alternative to it.

  7. Father Haller, I am conversant with the full legislative history of Canon IV.9, and have devoted almost a dozen posts to various aspects of it (see the section on the Canon in "A Guide to This Site.") What strikes me as most relevant, from the standpoint of one trained as an attorney to construe statutes based on their legislative history, is that the core language defining "abandonment of the Communion of this Church" has been left untouched for over a hundred and fifty years. The filigree and curlicues that have been improvised over the years to cover new situations as they have arisen have not exactly kept the Canon a model of internal consistency, but the fact is that General Convention has never felt it necessary to alter its principal thrust—--which is to address the case when a bishop has abdicated his responsibilities to join a Church that is not in Communion with this Church.

    And whatever anyone claims about Bishop Duncan's intentions, he has not yet abdicated his see, and he has not yet left his TEC responsibilities. When people like the Rev. Mark Harris, or the Rev. Elizabeth Kaeton, want to rush to judgment in cases like this, I am always reminded of the story told by my criminal law professor about the man who was arrested as he was walking down the street at night, carrying a leather bag full of burglar's tools. When asked by the judge how he pled to the charge of "attempted burglary," he replied: "Well if carrying that bag makes me guilty of attempted burglary, then you had better charge me with attempted rape, because I sure as hell have the equipment for that on me, too!"

    I am in full agreement with your position that the "abandonment" canons need to be scrapped, rather than augmented, as the current proposal would have it, and I commend your effort to convince other deputies to General Convention to do just that at Anaheim in 2009.

  8. Regarding your comment on Bishop Duncan's letter to the Presiding Bishop, I find it fascinating to compare from the sidelines the viewpoint of one such as yourself, who is fully committed to the current Church and all its works, with the view expressed by one who feels compelled to distance himself from the current Church, such as Bishop Duncan. What you see as his abandonment of the Communion of this Church in affiliating with CCP he sees as something quite different. As he says in his letter, "I have gathered Anglican fragments together from one hundred and thirty-five years of Episcopal
    Church division, vastly increasing understanding and cooperation, though preserving the jurisdictional independence of all."

    I, as just one Episcopalian, do not feel threatened in the slightest by what I see Bishop Duncan doing; I even am inclined to agree that the net result of his efforts may be more to bring disaffected parts of the former Episcopal community together than to drive the current parts apart. The latter result, indeed, is what I fear the current litigation and canonical abuses by TEC are producing. And I find it ironic that in the current Church's drive to be "inclusive", it is falling far short of the standard for which Bishop Duncan is striving, and for which he is to be deposed.

    In short, I do not see Bishop Duncan as trying to create an "alternative Communion," as you say. I think he is trying to find Communion in parts that long since walked apart, as well as in parts that are now estranged; his task is to help bring those parts together again. To the degree that TEC says "Fine, but you are not welcome to do any of that from within this Church," it may be TEC that is defining the "alternative Communion."

    The best way for TEC to have dealt with +Duncan would have been to take him at his word: set up a meaningful alternative pastoral oversight mechanism as called for by Dar es Salaam, and challenge +Duncan to demonstrate his desire for unity by keeping his Diocese in The Episcopal Church.