The Height of Folly: Tinkering with the Canons

The "Title IV Task Force II on Disciplinary Policies and Procedures" has issued their draft report for the Blue Book that will be distributed to bishops and deputies attending General Convention 2009 in Anaheim. It is quite an accomplishment, in the sense that they have managed to make what was already a bad thing even worse. No doubt the members of the Task Force are well-intentioned, and meant to do no harm. But it is obvious, from a perusal of the draft Report, that they are way too close to their subject, and have no grasp of the larger picture within which their tinkering will have its unfortunate effects.

Rather than give at this point a catalog of all the faults I could find with their draft, I shall content myself with just a close look at their treatment of the current text of Canons IV.9 and IV.10, with which I am very familiar (the so-called "Abandonment Canons", to which I have devoted four earlier posts: this one first, then this, next this, and last of all, this). For in their approach to these two Canons, they reveal what is wrong with their concept generally, and from the mistakes made with just these Canons, many lessons may be drawn.

We first must place the need for reform of the Canons in context. As I demonstrated in the second and third posts linked above, Canon IV.9 (and its companion, Canon IV.10 for clergy) have been increasingly abused in recent years, in ways that their drafters never could have foreseen. "Abandonment" within the historical sense of the two Canons had always been understood as walking away from the Anglican Communion as such, and not just the Episcopal Church (USA). The idea was that such a person would not be around any longer to defend himself (or more lately, herself) against the charges of "abandonment", so the formality of a trial was not really necessary. But a bishop or minister who joined another Church in communion with ECUSA would keep his or her orders and always be welcome to come back and, with the permission of the diocesan responsible, assist in services.

Thus, within the Anglican Communion, orders were seen as valid in all member Churches---all that was needed to celebrate Holy Communion elsewhere was a license from the bishop with jurisdiction. (Witness how the Archbishop of Canterbury this summer refused to grant the Rt. Rev. V. Gene Robinson a license to celebrate Communion within his province, because his orders were not recognized as valid within the wider Anglican Communion.) There was hardly ever any need to invoke the "abandonment" canons, because true abandonment was a relatively rare occurrence.

Then came Bishop Bennison, however, and things were never the same afterward. He was the one who first employed the abandonment canon to get rid of a priest with whom he disagreed, without the necessity of bringing charges and having a trial. The Rev. Dr. David Moyer initially did not want to leave ECUSA; he simply did not want the heresies that Bishop Bennison was backing to receive recognition or sanction in his parish. In Bishop Bennison's eyes, however, Father Moyer's intransigence in refusing to receive him for a pastoral visit, and in failing to present candidates to him for confirmation, were "proof" that he had "abandoned the communion of [ECUSA]" by openly renouncing the "doctrine, discipline or worship of the Episcopal Church."

Such charges quickly became commonplace in cases of a doctrinal disagreement between a priest and his bishop. The result was to place clergy in an impossible position. When charged under Canon IV.10, the charge was almost always based upon an alleged violation of the priest's vow, subscribed at ordination in accordance with Article VIII of the Constitution, "to conform to the Doctrine, Discipline and Worship of the Episcopal Church." (Thus the oath is in the conjunctive---the ordinand swears to conform to all three. But as just noted, the Abandonment Canons define "abandonment" in the disjunctive, so as to render the punishment easier to apply, for renunciation of either the Doctrine, or the Discipline, or the Worship of the Episcopal Church.)

What is seldom appreciated is that the written oath which the ordinand signs is only part of a more comprehensive vow which explains and amplifies just what the "Doctrine, Discipline and Worship of the Episcopal Church" is. This can be seen from reading the full text of the exchange between the Bishop and the ordinand in the Book of Common Prayer (p. 526):

The Bishop says to the ordinand

Will you be loyal to the doctrine, discipline, and worship of
Christ as this Church has received them? And will you, in
accordance with the canons of this Church, obey your bishop
and other ministers who may have authority over you and
your work?

Answer

I am willing and ready to do so; and I solemnly declare that I
do believe the Holy Scriptures of the Old and New Testaments
to be the Word of God, and to contain all things necessary to
salvation; and I do solemnly engage to conform to the doctrine,
discipline, and worship of The Episcopal Church.

This exchange shows that the "doctrine, discipline, and worship of The Episcopal Church" are supposed to be equivalent to "the doctrine, discipline and worship of Christ as this Church has received them." The problem arises, then, when a conscientious priest sincerely believes that his bishop, or the Church as a whole, has departed from the "doctrine, discipline and worship of Christ as this Church has received them." Indeed, the entire dispute over ordaining practicing gay persons to the ministry comes down, in this vital respect, to whether such ordinations do in fact conform to the doctrines and teachings of Christ as they were received by this Church.

A person does not have to take sides in that dispute to appreciate the dilemma that results from the abuse of the Abandonment Canons as just outlined. All one has to be is fair enough to acknowledge that there is room for honest and conscientious disagreement on the question. And if that is the case, why should the punishment for such disagreement be one's deposition from holy orders without even a trial?

Indeed, this observation could be used as the starting point for an entirely different criticism of the current Title IV of ECUSA's Canons. One could devote an entire article to a comparison of the ease with which the deposition of a disagreeable priest may be procured under the current version of Canon IV.10---"disagreeable" in the sense that he/she maintains (traditional) doctrines that are different from those (more "modern" and "inclusive" doctrines) maintained by the diocesan bishop---with the sheer difficulty of deposing a bishop under Canon IV.3.21 for "holding and teaching publicly or privately, and advisedly, any doctrine contrary to that held by this Church." (The difficulty in the latter case is intentional---the result of a report growing out of the controversy over Bishop Pike's demand for a heresy trial to clear him of charges made by his critics.)

A bishop may not be deposed on such a charge unless ten other bishops first request a "Statement of Disassociation" from the alleged heretical doctrine, and the House of Bishops agrees by majority vote to issue such a Statement at its next regular meeting. That will be the end of the matter unless ten bishops next file a Presentment with the Presiding Bishop, together with a statement of reasons "why the issuance of a Statement of Disassociation was not a sufficient response to the acts alleged". After a full briefing of the issues on both sides, the proceedings may not continue unless at least one-third of the members of the House of Bishops votes to allow them to continue. Only then do the charges go before the Court for the Trial of a Bishop, which consists of nine other bishops elected for just that purpose. (However, any such bishop who had signed the presentment, or who was part of the one-third vote allowing the presentment to be brought, would thereby be disqualified, and so the court would have to be stacked with those bishops who had not agreed to the presentment in the first place.) Do you begin to see why no bishop has been deposed on charges of heresy since 1924, and why that bishop was the only one ever to be so deposed in the entire history of the Church?

To depose a priest on charges of "abandonment" growing out of doctrinal differences with his bishop, however, requires but the vote of three-quarters of the diocesan standing committee, and the concurrence of the diocesan bishop. There is no reliable tally, on account of the wide variety of factual differences, but it is safe to say that, in contrast to just one bishop more than seventy years ago, hundreds of priests have been so deposed in just the last six years alone.

Thus one of the criteria by which I propose to judge the Task Force's draft report is how well it addresses and manages to solve the problem of rampant abuse of the Abandonment Canons, in contrast to what it does (or does not do) with the cumbersome procedure for charges of episcopal heresy.

And at the outset, I have to conclude that the Report gets off to an egregious start. For the very first change to be noted between the current Canons IV.9 and IV.10 and the new draft is in the title itself. Current Canon IV.9 is entitled "Of Abandonment of the Communion of this Church by a Bishop", and Canon IV.10 is titled the same way, with a substitution of "Priest or Deacon" for the word "Bishop". The proposed new canon combines these two, and is titled simply: "Of Abandonment of The Episcopal Church." (Emphasis added.)

Uh-oh. This spells big trouble. As I showed in my earlier posts on the history of the Abandonment Canons, they were not concerned with clergy or bishops who left this Church for another church in the Anglican Communion. Indeed, their definition of "abandonment" carefully specifies that it consists of the act of "formal admission into any religious body not in communion with [this Church] . . ." (emphasis supplied). And so the ominous change in the title suggests that this distinction will no longer be maintained. (In consequence, as I have argued elsewhere, the Episcopal Church will increasingly isolate itself from the rest of the Anglican Communion.)

But then, what do we find, on reading the new language itself? The Task Force proposes to retain the same definition of "abandonment" as is in the old canons! In the case of a Bishop, it says:

If a Bishop abandons the Episcopal Church (i) by an open renunciation of the Doctrine, Discipline or Worship of the 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 the Church or another church in communion with the Church, so as to extend to such body Holy Orders as the Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in the Church . . .

(The definition for a priest or deacon is also the same, including the additional open-ended phrase "or in any other way . . ." at the end. It was proposed in the earlier draft version to add this catchall language to the definition of "abandonment" for a bishop as well, but the Task Force seems to have rethought that particular change. As an attorney, I think the open-ended language is an invitation to open-ended abuse. The Task Force's failure to eliminate it, while choosing at the same time not to add it to the definition of a bishop's abandonment, demonstrates clearly its intent to maintain the double standard in the current Canons that favors bishops in every instance over priests and deacons. And that failure, I submit is completely at odds with the Task Force's avowed mission of "reconciliation, to free and strengthen the Church in its true mission to the world" [Report, p. 4].)

So what is to be made of this deliberate adherence to the old language? The only conclusion I can draw is that it amounts to an affirmation, almost sub silentio, of the current practice of deposing bishops and priests for "abandonment" whenever they leave the Episcopal Church (USA), period---regardless of whether they transfer to another province in the Anglican Communion or not. And the result is to render meaningless the second clause of the definition: "by formal admission into any religious body not in communion with the same". Formal admission into a body that is in communion with ECUSA will instead be treated as a violation of the first clause, i.e., a renunciation of one's ordination vows, read in the restrictive sense that one is swearing allegiance not to the "doctrine, discipline and worship of Christ", but only to "the doctrine, discipline and worship of The Episcopal Church."

This proposal is thus a disaster, and constitutes the worst of both worlds. We are, as I say, off to an egregious start.

To continue for a moment with the proposal as it deals just with bishops: the next thing to note is that it dispenses with the check on abuse of power which the current Canon IV.9 provides by requiring the three senior bishops with jurisdiction to consent to any proposed inhibition of the bishop charged with abandonment. If a charge clears the Disciplinary Board (which replaces the old Title IV Review Committee, and has twice as many members [18 instead of 9]), then the Presiding Bishop must impose a "restriction" (the new, and softer-sounding, replacement for "inhibition") on the bishop so charged; the three most senior bishops are not consulted. So that takes care, at least, of the problems that were engendered by the Presiding Bishop's unilateral decision that she could simply bypass the senior bishops in instances where they did not agree with her, as in the cases of Bishop Cox and Bishop Duncan. (Score one more point for the Imperial---or rather, Metropolitan---Presidency to which the Church is now de facto subject.)

Well, after these explications, you must be dying to know how the Task Force proposes to solve the claim of the Presiding Bishop, her Parliamentarian and Chancellor, and of Bishop Sauls and his Property Task Force (?!) that the second part of Canon IV.9 was "ambiguous" in calling for a consent to the proposed deposition by a "majority of the whole number of bishops entitled to vote." Remember that at the recent meeting of the House of Bishops in September, at which it illegally took up a resolution to depose Bishop Duncan (who had never been inhibited, as an express requirement for proceeding to a vote on deposition), the Presiding Bishop and her Parliamentarian took the extraordinary (and extremely uncanonical) step of announcing in advance of the meeting their parliamentary "rulings" resolving this claimed "ambiguity". They decided, in plain violation of Roberts Rules of Order, that the quoted language was "ambiguous" because it could mean either---

(1) a majority of the "whole number" of bishops present and qualified to vote at the meeting; or

(2) a majority of all of the bishops with a seat and vote in the House, whether present at the meeting or not.

Since the latter interpretation (which was the uniform interpretation applied in all previous cases of abandonment, except for the most recent ones of Bishop Davies of Ft. Worth and Bishop Larrea of Ecuador) required an inconvenient number of retired bishops to show up and vote, the Presiding Bishop and her Parliamentarian settled on the first interpretation, thereby making the words "the whole number of" superfluous and meaningless. Many conscientious members of the Church were troubled by this arbitrary reading of the plain language, and called for the Canon's language to be "clarified" at General Convention 2009.

Those who were so troubled will just have to wait, and propose a "clarification" from the floor. For the Task Force once again shows its mettle by retaining the old language, unchanged! What I want to know is this: does the Task Force mean by this recommendation to affirm the reading of this language imposed by the Presiding Bishop and her Parliamentarian last September, or is it thereby signaling that we should return to the traditional interpretation that was uniformly applied up until 1993? Or is it taking no position on the issue? How is anyone supposed to tell? The result in any event is unhelpful, to say the least.

The only other significant change in the procedures under the old Canons is a shortening of the six-month period of inhibition before a priest or deacon may be deposed to just a sixty-day period. Doubtless this is intended to expedite the current proceedings against disagreeable clergy, and to hasten their enforced separation from the Church when their bishop fails to see eye to eye with them.

Oh, yes---and what about the procedure for deposing a bishop on charges of heresy? Did the Task Force recommend any expediting changes for that process? Answer: not in the slightest. It remains every bit as difficult and cumbersome as before.

With this examination of the changes to the abandonment canons at an end, I hope that the larger picture presented by the draft Report will be more clear. In general (except in cases of heresy maintained by a bishop), the Task Force is recommending changes to the disciplinary process that will expedite and shorten the period of time in which troublesome dissenters may be removed from the Church. It accomplishes this feat in at least two ways: by removing former checks on authority and shortening time periods, as we have seen in the case of the abandonment canons; and by imbuing the disciplinary authorities with a vast amount of discretion as to which manner of discipline is appropriate to a given case. The choices will now be four, to be selected solely in the discretion of the triumvirate consisting of the Intake Officer, the diocesan bishop involved, and the president of the diocesan Disciplinary Board (known collectively as "the Reference Panel"); they are as set forth in proposed Canon IV.6.8:

Referral options are (a) no action required other than appropriate pastoral response pursuant to Canon IV.8; (b) conciliation pursuant to Canon IV.10; (c) investigation [for possible presentment and trial] pursuant to Canon IV.11 or (d) referral for possible agreement with the Bishop Diocesan regarding terms of discipline pursuant to Canon IV.9.

One can safely predict that if GC 2009 adopts the Task Force's recommendations, there will be a rise in depositions for abandonment, both of bishops, as well as of priests and deacons. Freedom in bringing and concluding charges will tend to produce, over time, a much more homogenized Church than at present.

But the result will not be all that lamentable, given the impending formation of a new North American province. For with the homogenization of ECUSA, the choice between it and the alternative will become that much more clear. Those who enjoy the untrammeled discretion of arbitrary power will much prefer ECUSA, while those who enjoy being bumps on the log will find ample room for their personalities in the looser structures of the new province. Whether the choice will remain as clear over the long run is much more difficult to foresee, given the inevitable tendency of any institution over time to concentrate power at the top. The already topheavy structure of ECUSA will become even more so, especially with the current precedents being set---without any meaningful objection or opposition---by the Presiding Bishop, who is gradually arrogating to her office the full powers of a metropolitan.

However, the one factor which the Presiding Bishop and her minions cannot control is the courts, and they are risking an awful lot in more and more legal proceedings in more and more States. There will be some victories, but also some inevitable losses. Should the latter come to be more numerous than the former, the office of the Presiding Bishop will come under severe pressure to pull in its horns, and to deal with what remains and can be safely managed. Even under those circumstances, however, I think the concentration of power will inexorably continue---if not during the term of the incumbent, then during that of her successor.

It may be trite to say it, but the trilogy of J.R.R. Tolkien's Lord of the Rings just might provide a fair analogy to understand the processes that are going on around us in the Church today. Think of how the forces of Mordor first dominated, and then how that domination produced over time its own self-correcting reaction---even down to the most imperturbable of all of Tolkien's creatures, the Ents. When they had had enough of Sauron, they had had enough, and proceeded to do something about it. I do not wish to push the analogy too far, because the future is inscrutable; there are just too many variables. What will help in any event is to keep one's mind focused on resisting arbitrary power at every little stone bridge that presents itself on the way. For only in that manner can arbitrary power be ultimately checked and brought to bay.