The Constitutional Crisis in ECUSA (I)

This will be the start of a new series of posts, to be called The Constitutional Crisis in ECUSA. Recent changes made by General Convention 2009 to the Canons, in combination with some in the Church who want to establish a strong central authority under the Presiding Bishop, and the ego of the current occupant of that office, have pushed ECUSA to the brink of a crisis, from which it cannot emerge unscathed. Presiding Bishop Katharine Jefferts Schori has already seized authority over the affairs of the Church which is unprecedented -- and her usurpation of authority to date has for the most part not been challenged, or questioned. Led by its Presiding Bishop, ECUSA is in the middle of being transformed by a small group from within, and the average congregation and their clergy as yet have no awareness of the scope of the changes. It will be the purpose of this series of articles, drawing on previous posts which I shall reference, to lay out the big picture clearly enough for anyone to form their own conclusions from the facts presented.

1. A Short Institutional History of ECUSA

The crisis stems from the fact that certain parts of the Church are exceeding their authority under the Constitution and Canons, and that there is no check on what they have done, and are in the midst of doing. (Remember that, unlike the United States of America, there are no checks and balances within the structure of ECUSA. Nor is there any highest body with any power to declare the actions of any other part of the Church "unconstitutional.")

The Church at bottom is a voluntary association of sovereign, or self-governing, member dioceses. Originally separate churches, each in its own colony, they joined together after the Revolutionary War by mutual contract, which was the Constitution of the "Protestant Episcopal Church in the United States of America" (PECUSA -- now more commonly without the first word, or ECUSA). A Diocese -- which is also a voluntary association of member parishes and their clergy -- at first joined the national Church by attesting that it agreed, or "acceded", to the Constitution. Note that there was no accession required to the canons adopted in General Convention, or to General Convention itself. Nor was there any requirement that the accession so attested be "unqualified"-- a word first added to the Constitution in 1982. (See this earlier post for the text of the original Constitution adopted in 1789, and see in particular Article V thereof.)

Article I of the original Constitution established a "General Convention" -- a representative body composed of delegates ("deputies") elected and sent by the member dioceses, and (in a separate chamber, or "House") the bishops who headed up each member Diocese. To General Convention was given the legislative power of the dioceses assembled in the persons of their respective bishops, and clergy and lay representatives. Its principal purpose was to establish and maintain a uniform liturgy, through the Book of Common Prayer (derived from its equivalent in the Church of England), and through a body of rules, or canons, for the Church's governance (again modeled on the canons of the Church of England).

From its outset, the national Church has had neither an executive body, nor a judiciary body -- other than for episcopal disciplinary matters. (That is why analogies between the Constitution of the United States and the Constitution of ECUSA are inapt.) Its member dioceses come together in convention only once every three years, for only a number of days. ("Special Conventions" have occasionally been called to address pressing issues which arose between scheduled Conventions.)

The bishops were a necessary part of an "Episcopal" church, but America had none before the Revolutionary War. It took some convincing on the part of the new Church, and a change in the law by Parliament, before the Archbishops of Canterbury and York could be persuaded to ordain the candidates from America (Bishop Seabury of Connecticut grew tired of waiting, and was ordained in Scotland). Once there were three such bishops ordained in the apostolic succession, they ordained later bishops in America, who were each elected by their respective dioceses.

The only requirement in the first canons for the ordination of a new bishop was that he present two certificates to those bishops ordaining him: one from his own State's convention, attesting to his due election and episcopal character, and one from the members of General Convention itself, who thereby evidenced their consent, and attested to the lack of any impediment to his ordination. (These requirements derived from the conditions which the English Archbishops had established for the ordination of candidates from America.) For its first decade, the new Church performed its episcopal ordinations during sessions of General Convention. In 1799, General Convention adopted a requirement that any episcopal consecration not occurring during one of its triennial sessions receive the approval of a majority of the diocesan standing committees; the requirement for the consent by a majority of bishops in the interim between Conventions was added in 1820, after the House of Bishops had become more numerous.

Other than procedures for the approval of episcopal elections during and between Conventions, and some minimal requirements at the national level, the rules governing a bishop once confirmed were derived mainly from the constitution and canons of his own diocese. The national Constitution did limit the exercise of his powers conferred by ordination to the diocese electing him. The Constitution, however, was not seen as the source of episcopal powers, which stemmed instead from ancient tradition. The powers of General Convention, on the other hand, were viewed as having been delegated to it by the respective dioceses, in accordance with the sixth (and final) fundamental principle first given expression by the Rev. William White of Philadelphia, in a pamphlet published seven years before the adoption of the first Constitution (emphasis added):

VI. That no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations.

As explained in this previous post, the position of Presiding Bishop at first rotated among the Church's original three bishops, but then devolved by consent upon the most senior member of the House of Bishops. It was not until 1925 that the Church had its first elected Presiding Bishop, and it was not until 1948, with the installation of the Most Rev. Henry Knox Sherrill, that the office began to acquire a significant staff of permanent employees -- which, over the ensuing years, became the bureaucracy now headquartered at 815 Second Avenue, in New York.

Despite giving him complete control over an extensive staff, the Church steadily rejected proposals to give the Presiding Bishop the powers of a metropolitan archbishop, with authority to command and discipline inferior bishops under his jurisdiction. General Convention in 1982 rejected a proposed constitutional amendment to change the title of the office from "Presiding Bishop" to "Archbishop", precisely because of concerns that such a change might imply the conferral of metropolitical authority. (To give the Presiding Bishop standing with the other primates in the Anglican Communion, Canon I.2.4 was changed in 1982 to describe him as the "Chief Pastor and Primate of the Church." However no additional authority was thereby conferred, since to do so would have required an amendment to Article I of the Constitution, such as the one that the assembled deputies and bishops rejected.) That description of the office has remained unchanged since.

In summary of the foregoing brief history, ECUSA is a voluntary association of sovereign (i.e., self-governing) member dioceses. Together in General Convention (or individually, in the interim between its sessions), they approve the elections of new bishops prior to their consecration, and every nine years they elect a new Presiding Bishop. The latter has no see of his own, and just like any other bishop in the Church, has no authority to act within any Diocese except with the consent of the Ecclesiastical Authority of that Diocese (either the diocesan or his acting successor, or in default thereof, the diocesan Standing Committee).

2. Encroachments on Dioceses by the Current Presiding Bishop

With the election of the Rt. Rev. Katharine Jefferts Schori to be Presiding Bishop in 2006, the authority claimed by that office began to expand considerably. The first woman to be elected to that office, she began by abusing the terms of the Abandonment Canon. That rule had been adopted in 1853 to provide a means of removing from the rolls bishops and clergy who left the Church to join non-Anglican denominations (such as the Roman Catholic Church), without bothering to resign their orders first. In five sequential violations of Canon IV.9, Bishop Jefferts Schori (1) trumped up charges (which did not satisfy the Canon's requirements) against the Rt. Rev. William J. Cox (at 86 years old, the Church's most senior bishop); (2) delayed informing him of the charges while she unsuccessfully tried to obtain the canonical consents required to inhibit him (i.e., restrict him from performing episcopal acts); (3) rammed through the House of Bishops a resolution "deposing" him even though, since he had not been first inhibited, the Canon made no provision for such a vote; (4) declared that the resolution had passed, even though the number of votes required by the Canon had not been achieved; and (5) blatantly signed a false certification that he had been duly deposed in accordance with the Canon!

That was evidently just a warm-up, to practice what her fellow bishops would let her get away with unchecked. Since that initial travesty, the Presiding Bishop has gone on to:

• assert the right to inhibit other bishops without first obtaining the consents to inhibition which the Canon required;
• assert the right to introduce a resolution of deposition against a bishop whom she had not received permission to inhibit;
• usurp the parliamentary functions of the House of Bishops, and unilaterally read the language of the canons contrary to their historic interpretation and application;
• claim the authority to "derecognize" the duly elected members of diocesan Standing Committees, who, to the extent that there remained a viable diocese at the time, constituted its Ecclesiastical Authority;
• claim the authority to invoke special diocesan conventions, in violation of the provisions of the constitutions of those dioceses, and without bothering to give the required advance notice;
• declare that a quorum of clergy and laity each was "present" at the special conventions thus illegally called, even though the numbers fell far short of constitutional requirements for a quorum in each order;
• claim the authority to "recognize" the groups gathered at the unconstitutional conventions as full-fledged "dioceses" in their own right, and to dispense with their having to go through the steps to be approved as such by General Convention;
• claim the authority to designate, for the Archbishop of Canterbury's benefit, who was and was not entitled to be invited as a bishop to the 2008 Lambeth Conference;
• claim the authority to join with the illegally constituted "dioceses" and their illegally elected "provisional bishops" in lawsuits seeking to claim title to all the assets and property of the legitimate dioceses;
• claim the authority to hire her own Chancellor's law firm to prosecute dozens of lawsuits in the name of the whole Church, at a cost of tens of millions of dollars not provided in the Church's budget;
• claim the authority to "accept the 'voluntary' renunciation of holy orders" of bishops who have transferred to other provinces of the Anglican Communion, without their having had the least intention of doing so, and officially pronounce them "deprived of the right to exercise the gifts and spiritual authority as a minister of God's Word and Sacraments conferred in Ordinations"; and, last but not least, she has gone on to
• claim the authority to "undo", all on her own, a previous actual renunciation of orders by a bishop upon leaving to join the Roman Catholic Church, and to reinstate the person as an Episcopal bishop without involving the House of Bishops.

Notice that each of these usurpations of authority has occurred in derogation of the authority of individual bishops, of self-governing dioceses, of the authority of the collective House of Bishops, or even of the authority of General Convention itself (as in her committing the Church to spend millions of dollars which it did not have budgeted). In short, without having ever been given the authority of a metropolitan, Bishop Jefferts Schori increasingly is acting like one. After filling just one-third of her term in office, she exercises more authority over her fellow bishops and the Church's member dioceses than any Archbishop of the Church of England.

3. The 2009 Changes in the Canons

In a question-and-answer session on the eve of the "special convention" she had illegally called in March 2008 to install Jerry Lamb as the "Provisional Bishop" of San Joaquin, Bishop Jefferts Schori made a remarkable prediction about some upcoming changes in the Church Canons:

When asked whether the House of Bishops will strengthen itself to deal with bishops who mistreat their dioceses, Jefferts Schori, reminding the audience of the Episcopal Church's governance structure, said such discipline is "not technically the responsibility of the House of Bishops."

. . .

Jefferts Schori said that the fact that the Episcopal Church is made up of "relatively autonomous dioceses in relationship with each other through General Convention" means that discipline in part "depends on people being able to call each other to account," as opposed to having one person able to impose penalties.

The Presiding Bishop predicted that the next meeting of General Convention in July 2009 would be asked to consider ways to change the canons to better deal with such disciplinary matters.

The revisions to the disciplinary section of the Canons ("Title IV") proposed at Anaheim in 2009 lived up to Bishop Jefferts Schori's prediction: with very little time to consider their sweeping nature, and with no line-by-line comparison of what was being changed made available to them (contrary to what the Canons themselves require), the deputies enacted changes the full scope of which no one -- not even those who had labored for years to draft them -- grasped. The extent of the disciplinary powers over other bishops alone which the new Canons give to the Presiding Bishop transform her -- in contrast to what tradition and ECUSA's Constitution say -- into a full-fledged metropolitan. Consider just these points (see this paper for the full details):

• Currently, if the Presiding Bishop wants to bring charges against another bishop, she has to send a written presentation of just the facts, without any editorializing, to an independent "Title IV Review Committee" consisting of bishops, clergy and laity. Under the new Canons, the Presiding Bishop is empowered to refer, "in any form", information about any offense she thinks "may" have been committed to an "Intake Officer", whom she alone appoints.
• Currently, the Title IV Review Committee screens and evaluates each potential charge against a bishop. Under the new Title IV, the Presiding Bishop, along with her appointed "Intake Officer", have two out of the three votes on the "Review Committee" which now screens the charges.
• Currently, the Presiding Bishop may inhibit a bishop only if the Title IV Review Committee decides to present charges, and only if a majority of all the members of the affected diocesan Standing Committee consent. Under the new Title IV, the Presiding Bishop may act alone, and out of the blue, to inhibit a fellow bishop (the word "inhibit" has been replaced by the term "place restrictions on the exercise of the ministry" of a bishop).
• Currently, any inhibition is "temporary", and is "an extraordinary remedy, to be used sparingly and limited to preventing immediate and irreparable harm to individuals or to the good order of the Church." Under the new Title IV there are no such limitations on its use -- restrictions may be imposed for any duration, and for any reason(s) the Presiding Bishop, in her sole judgment, thinks are sufficient.

There is more, but these comparisons are enough at this point to demonstrate the truth of my assertion that the new Title IV purports to confer upon the Presiding Bishop the authority of a metropolitan archbishop, despite ECUSA's history and polity to the contrary. If the changes to Title IV were now in effect, the Presiding Bishop could immediately place restrictions on Bishop Bennison again, and effectively remove him from the episcopal life of the Diocese of Pennsylvania -- she would only have to cite his "lack of repentance" as a reason. (She would have the full support of the diocesan Standing Committee, even though she would not need it under the revised canons to act.) The time he would spend in appealing the restrictions would exhaust the remainder of his term of office, and he would never visit another parish in Pennsylvania again as its bishop.

But likewise, if the new Title IV provisions were now in effect, the Presiding Bishop could use the latest whine from the Episcopal Forum of South Carolina as a basis to place restrictions on the ministry of Bishop Lawrence -- without the consent of, and against the wishes of, his Standing Committee. That is why the Diocese of South Carolina has proposed resolutions which would refuse to assent to the changes adopted by General Convention, and which would leave disciplinary procedures and structures in that Diocese are they are currently instituted. And that is partly why the Episcopal Church (USA) currently finds itself in a constitutional crisis.

4. The Clash of the Warring Factions

Bishop Lawrence has now responded very succinctly and very directly to the trumped-up charges made by the Episcopal Forum, which has been a thorn in the side of orthodox South Carolina bishops for seven years. But his appeals to ECUSA's Constitution, and the limits it places on any one bishop's authority over other bishops, are falling mostly on deaf ears. The usual enablers of the Presiding Bishop are rushing into print with their criticisms of what they regard as a challenge that comes too late: see, for instance, this piece, and this one, which has further links to like-minded thoughts. In arguing that South Carolina should have made its objections to the changes known at General Convention, the enablers parrot the line that Bishop Jefferts Schori used to justify her illegal depositions to her fellow bishops: "since there were no objections at the time, what's done is done, and cannot be undone."

The enablers believe there are no limits on the powers of General Convention, because none is expressed in the Constitution. Paradoxically, the same enablers believe that there are definite limits on the powers of dioceses (such as not being able to leave the Church) -- even though none is expressed in the Constitution.

Do you begin to see the problems here? Troubles aplenty are ahead for the Episcopal Church (USA). In future posts in this series, I shall describe them as I see them, one by one.

[Part II of this series of posts is here.]