Monday, November 29, 2010

Finally: a Rational Voice on Climate Change

In preparing a current curriculum on the respective domains of science and religion, I have been turned away by the shrill voices claiming they are incompatible, and have been drawn to the calmer, more reasoned voices who dwell on their similarities (while not disregarding their distinctions). The entire debate in the popular press about the "war between science and religion" seems to be, on closer inspection, an attempt to drum up either support for one particular camp against another, or else for sales of a particular author's books.

I may return to a discussion of my eventual findings in a future post, but for the present it seems both more fruitful, and more timely, to focus in upon a war whose impact and extent dwarf the alleged current conflict between science and religion. I speak of the war -- actual, and not imaginary or hypothetical -- between two political factions who each would draw upon science for their justification and support. These are the factions gathered on the opposite sides of an issue commonly called "global warming." The issue is so heated (sorry) and so sensitive that where one comes down on it may affect one's social invitations for the coming few years or so, to say nothing of one's position (and salary) at higher institutions of learning, or (more trivially) one's blogreader counts.

So much heat and light (sorry, again, but I'm afraid the punning analogies are inevitable) have been generated over this issue that it is extremely difficult, if not altogether impossible, to return the debate to a neutral starting point. Whatever one academic says in the furtherance of such a goal, he or she is immediately swamped in a flurry of hysterically ad hominem accusations and charges that render perilous further dialogue on the remarks so advanced. And now, mix in the recent series of purloined emails dubbed "Climategate", and one achieves a turbulence unmatched by anything one could encounter in the earth's atmosphere.

What the controversy obscures, however, is that science itself has precious little to do with partisan politics, while partisan politics has a great deal to do with what kinds of science are funded through government largesse. As a consequence, those in academia who need government funding to maintain their laboratories and research programs are very much inclined to stay on whatever current bandwagon is receiving the government's bounty -- regardless of the merits of the opposing scientific views at stake. The result is a self-perpetuating kind of scientific "orthodoxy", which dictates not only the prevailing winds of governmental benevolence, but also the kinds of open debate that will be tolerated.

Like Diogenes with his lantern, however, your curmudgeon daily sallies forth, looking for an honest man (or woman -- there is no bias here, but only a concern for good English prose style and grammar, which I am afraid mitigates against my continuing to bend my syntax in favor of the political correctness of inclusivity) who will venture to put such a perfervid controversy into an unbiased, yet still understandable, perspective. And so I am very pleased to report to my readers that such a person does exist -- in the figure of the current Alfred P. Sloan Professor of Meteorology, in the Department of Earth, Atmospheric and Planetary Sciences at the Massachusetts Institute of Technology: Dr. Richard Lindzen.

Now before the believers/supporters of the global warming crisis hyperventilate, and begin to twitch, let me assure them that, as a longtime student of this controversy, I am well informed about where Dr. Lindzen stands on the general scale of those who have publicly taken a position with regard to it. It is not a man's particular position which concerns me, however, but the way in which he justifies that position, and describes how he arrives at it, which to me weighs most in the balance. And on this scale, Dr. Lindzen comes in with flying colors -- as best evidenced by his latest (November 17) testimony before the United States House of Representatives' Committee on Science and Technology. The reports of his appearance before that Committee were lost in the ensuing Thanksgiving festivities and the related brouhaha over TSA body scans, but you can still access a modified version of his written testimony online (.pdf download here). It is that version which forms the basis for the rest of this post.

Let me show why one can give Professor Lindzen such a strong endorsement by quoting here his initial paragraph, which wastes no time in getting down to brass tacks. It is at one and the same time refreshing, candid, and disarmingly honest in its attempt to boil the controversy down to its crucial point (I have added the bold type to emphasize his points of candor):
I wish to thank the House Committee on Science and Technology for the opportunity to present my views on the issue of climate change – or as it was once referred to: global warming. The written testimony is, of course, far more detailed than my oral summary will be. In the summary, I will simply try to clarify what the debate over climate change is really about. It most certainly is not about whether climate is changing: it always is. It is not about whether CO2 is increasing: it clearly is. It is not about whether the increase in CO2, by itself, will lead to some warming: it should. The debate is simply over the matter of how much warming the increase in CO2 can lead to, and the connection of such warming to the innumerable claimed catastrophes. The evidence is that the increase in CO2 will lead to very little warming, and that the connection of this minimal warming (or even significant warming) to the purported catastrophes is also minimal. The arguments on which the catastrophic claims are made are extremely weak – and commonly acknowledged as such.
Professor Lindzen continues, in the same disarming vein (with emphasis again supplied):
In my long experience with the issue of global warming, I’ve come to realize that the vast majority of laymen -- including policymakers – do not actually know what the scientific debate is about. In this testimony, I will try to clarify this. Some of you may, for example, be surprised to hear that the debate is not about whether it is warming or not or even about whether man is contributing some portion of whatever is happening. I’ll explain this in this testimony. Unfortunately, some part of the confusion is explicitly due to members of the scientific community whose role as partisans has dominated any other role they may be playing.
And here we have the nub of the problem: the drafting of science into the lists of politics. For the two are wholly incompatible. Politics, "the art of the possible", proceeds (in a democracy or a republic, at least) largely by consensus -- the majority on a given point prevails. Science, however, is the antithesis of politics in that regard. "Consensus" is not science. A theory is either disproved, or not yet disproved -- it matters not how many scientists would vote to say that a theory is correct, or incorrect. A theory which has successfully stood all experimental tests to date is still not "proved", in the eyes of science, because there remains an infinity of opportunities to disprove it in the future -- far more opportunities, accordingly, than have existed to do so in the past. Thus the consensus of a group of scientists -- no matter how large, no matter how many thousands might sign on to the current belief -- does not, by itself, establish what is known by science.

Those who belong to the majority in a given democracy, or republic, are entitled to put their chosen policies and programs into effect. But just because a "majority of scientists" (whatever that may mean) believes that there may be looming catastrophes due to "global warming", their belief does not translate into a reason that the catastrophes feared will ensue. It is not a matter of majority vote, but of cause and effect. As Professor Lindzen goes on to testify (emphasis in original):

The claims that the earth has been warming, that there is a greenhouse effect, and that man’s activities have contributed to warming, are trivially true and essentially meaningless in terms of alarm.

"Trivially true" is a devastating way of summing up all the "scientific evidence" for so-called "global warming" to date. It puts the claim into perspective. Despite the fact that mankind's cumulative effects on CO2 concentrations in the atmosphere to date are not physically relatable to earlier periods, before there even was a mankind to speak of, the physical and historical evidence remains: (1) the concentration of CO2 is a miniscule part of the atmosphere's total composition (on the order of 390 parts in a million), and (2) there have occurred periods in earth's history, long before the current ecological impact of mankind, when the atmospheric concentrations of CO2 were far higher than those being projected (or even observed) today.

Consider, for just one example, the hysterical claims that the polar ice caps are disappearing as a result of man-caused global warming. In a series of graphs accompanying his testimony, Professor Lindzen puts this claim into an understandable perspective. The fluctuations reported in the Arctic ice field are completely seasonal, and proceed according to an established pattern, as shown in this graph of the extent of the ice fields since the year 2000 (click it to enlarge):

The amber line which represents the calendar year 2010 shows an ice extent which is thoroughly consistent with the data from the previous nine years. Professor Lindzen underscores the silliness of the claims of "polar bears adrift," and similar ecological disasters, with this quotation from an earlier U.S. Weather Burueau report on the state of ice in the Arctic Ocean:
. . . the arctic ocean is warming up, icebergs are growing scarcer and in some places the seals are finding the water too hot. [R]eports all point to a radical change in climate conditions and hitherto unheard-of temperatures in the arctic zone. [E]xpeditions report that scarcely any ice has been met with as far north as 81 degrees 29 minutes. [G]reat masses of ice have been replaced by moraines of earth and stones, while at many points well known glaciers have entirely disappeared . . .
Such were the calamitous observations of the Weather Bureau -- in 1922.

There are much more data and technical graphs in Professor Lindzen's testimony before Congress. I commend them to your leisurely perusal and detailed study, as both are equally informative. The essential point he makes, and which most media accounts ignore, is that the predictions of all the computer-based models, which have been so touted in the gloom-and-doom news stories to date, depend "on positive feedbacks, and not just [on] the modest effects of CO2." By "positive feedbacks", Prof. Lindzen is referring to a claim of a scientific mechanism, such as a supposed increase in other atmospheric greenhouse factors (principally clouds and water vapor) which are said to follow necessarily any rise -- including a projected doubling -- in the current levels of atmospheric CO2. As he shows in the detailed graphs accompanying his testimony, there is simply no present evidentiary support to back up any such claim of a "positive feedback" mechanism connected to the level of atmospheric CO2. There are, instead, only computerized models which to varying degrees assume there is such a feedback.

And here is where the "science" of global warming affects political policy. Because the feedback factor is a matter of sheer conjecture in all the current models, with no atmospheric temperature data to provide a basis for the projections, it is blatant alarmism to claim that all the models show a catastrophic rise in global temperatures if current CO2 production increases according to the present trend. The models in question have no basis in current science, because no one can quantify, based on available past data, the precise cumulative effect of an increase in what is an admittedly miniscule concentration (0.04 %) of atmospheric CO2, given the far greater concentrations of such major greenhouse components like clouds and water vapor -- which together account for one hundred times the current concentrations of carbon dioxide (measured by volume). The claims here are based on an abstract mathematical "forcing analysis", the outcome of which depends wholly on the arbitrarily selected parameters and the formulae chosen, and which thus has zero support in the physical data available to date.

Indeed, Professor Lindzen tosses in -- almost as an aside -- this zinger, which looks at an earth warmed by a much fainter sun, long before mankind appeared on the scene:
Discussion of other progress in science can also be discussed if there is any interest. Our recent work on the early faint sun may prove particularly important. [Two and a half] billion years ago, when the sun was 20% less bright (compared to the 2% change in the radiative budget associated with doubling CO2), evidence suggests that the oceans were unfrozen and the temperature was not very different from today’s. No greenhouse gas solution has worked [to explain this discrepancy], but a negative cloud feedback does.
In other words, well back in prehistoric time, before man and his activities ever could have affected earth's atmospheric composition, the cover of the clouds and water vapor alone accounted for the prevailing temperatures and the liquid condition of the oceans. This observation simply confirms our common-sense intuition of the relative contribution made by an environmental factor which is ten million times greater than the one the alarmists are isolating today.

It is fitting to conclude with this quotation from Prof. Lindzen's presentation to Congress:
You now have some idea of why I think that there won’t be much warming due to CO2, and without significant global warming, it is impossible to tie catastrophes to such warming. Even with significant warming it would have been extremely difficult to make this connection.

Perhaps we should stop accepting the term, ‘skeptic.’ Skepticism implies doubts about a plausible proposition. Current global warming alarm hardly represents a plausible proposition. Twenty years of repetition and escalation of claims does not make it more plausible. Quite the contrary, the failure to improve the case over 20 years makes the case even less plausible as does the evidence from climategate and other instances of overt cheating.
Instead of a catastrophic rise in global average temperatures, Dr. Lindzen reads the historical data, and the science known to date, to make a forecast of a phenomenon far more familiar to earth's recent denizens -- the approach of a new ice age. He is not alarmist, however, but projects its advent well beyond our own current lifetimes:
In the meantime, while I avoid making forecasts for tenths of a degree change in globally averaged temperature anomaly, I am quite willing to state that unprecedented climate catastrophes are not on the horizon, though in several thousand years we may return to an ice age.

Thursday, November 25, 2010

We Give Thanks to Thee, O Lord

From J. S. Bach's B-Minor Mass, performed in Bach's own church, with the successor choir to the one he led (now a bit more numerous, to be sure) -- mankind has never said it better than this:

May you and your loved ones enjoy a blessed Thanksgiving, in the grace and peace of God, through Our Lord Jesus Christ.

Tuesday, November 23, 2010

What If They Sign the Covenant, and No One Comes?

Bytes are streaming every which-way across the Internet as the General Synod of the Church of England debates whether or not to recommend the Anglican Covenant for further consideration before final adoption. The process is complicated (see paragraphs 23-26), and will depend in part upon later action taken by the House of Bishops, but the entire process could be stopped now if Synod tomorrow votes the pending resolution down.

In his opening address to Synod, the Archbishop of Canterbury made a plea for (are you surprised?) continuing dialogue among the Communion's members, and explained that the Covenant adoption process was part of that continuing dialogue. Some of the individual Synod members appeared to take him up on what he said, and indicated that they would like more time for dialogue and conversation among themselves before taking action as a Synod at a subsequent meeting. For the reasons that follow below, I believe that would be the wisest course -- but that is just my humble opinion.

The anti-Covenant forces have in the meanwhile concentrated their fire on General Synod, and are doing their level best to see to it that, as far as the Church of England is concerned, the adoption process will halt here and now. While many of those forces are part of the Church of England, others outside the CoE have joined them in the apparent hope that if the Mother Church rejects the work of the past seven years, the resulting embarrassment for its advocates in the wider Communion will ensure no further approvals by other Churches, as well.

If that result comes to pass, the Anglican Consultative Council will have come a cropper, indeed. To date (as far as I am aware), only Mexico has given its official approval to the Covenant. The Province of the West Indies, whose former Archbishop Drexel Gomez played a leading role in its formulation, is also meeting this week to vote on its approval. The provinces of the Global South have thus far signaled that they are unhappy with the role to be played by the newly created Standing Committee, and that Section 4 of the Covenant will need revision before they can sign on to it. As I predicted some time ago, the Episcopal Church (USA) will go through the motions of considering it, but will refuse to approve it in the end.

Thus, what will it mean for the Anglican Communion if it is reduced to defining itself as the Province of Mexico and the Province of West Indies -- with or without the Church of England? In this perspective, the action taken by General Synod today (it is already November 24 in England as I write), although by no means final, will have much to do with the momentum of the Covenant approval process. If the Church of England calls a halt to the process at this point, it will have many ramifications for the provinces which have still to act on its adoption. The particular ramifications will depend entirely on the reasons which carry the day in Synod, despite the Archbishop's pleas, for any such rejection.

In a previous post, I tried to analyze all the responses to the various Covenant drafts proposed, and concluded that there was a group of about fifteen "followers" of the Communion which will go along with what the ACC recommended (this included Mexico and the West Indies). However, I was not aware of Synod's timetable when I wrote that post. We may still have fifteen or so provinces which eventually agree to sign the Covenant in its current form, but if they do not include the CoE, the approval process will halt, and the signers will be a minority of the Communion.

If, on the other hand, the resolution passes, thereby ensuring the possibility that the Church of England may eventually sign on, then that action will give momentum to (or at least not deter) the adoption process in all the other provinces which have thus far indicated their approval of the drafts circulated to date. And depending on how matters proceed from there (i.e., if the rest of the provinces can agree on a final draft), the stage could then be set for the showdown at General Convention 2012 which I forecast in the previous post.

What is required now is for the provinces of the Global South to weigh in with one voice on the changes they would like to see in the Covenant. It would not then be too late for any such changes to be brought to ACC-15 in New Zealand in 2012, before ECUSA's General Convention, and any changes approved there could also be worked into the Synod process in the Church of England.

There remains, however, this paradox: if the Church of England finally adopts the Covenant in its present form, a triangulation could occur which will ensure the failure of the Covenant as a means of unifying what is left of the Anglican Communion. The CoE will thereby set itself apart both from the liberal forces which control ECUSA, and from the GAFCON provinces. If the latter, and those voting for the Covenant, are unable to come together on a new formulation at ACC-15, ECUSA will not even have to decide anything at its Convention in the summer of 2012. The Covenant, as such, will have been relegated to the scrapheap of history.

Whatever General Synod decides today, therefore, the future of the Anglican Covenant is fraught with perils -- which stem largely from the lackadaisical leadership at the top of the Communion. This is why I believe that the optimum outcome would be a vote to continue deliberations to a later session, and to take steps to work with the Global South in the interim. Voting to approve it in its current form, on the other hand, will require a commitment to consider seriously, at some point in the future (such as at ACC-15), the objections which the Global South will raise to it -- and the sooner they make those objections with one voice, the better for all who want in good faith to respond to them.

We are witnessing the dysfunctional processes of a fractured Communion. The forces that would tear it apart are threatening, at this point, to gain the upper hand. They have only been strengthened by the actions of the Communion's bureaucracy at ACC-14, and in the clumsy inauguration of the Standing Committee. The Archbishop of Canterbury, while motivated by the best of intentions to preserve the Communion, seems to be clueless about the overall consequences of his failure to guide the process with a firm hand.

What is reassuring is the civil tone of the debate at General Synod. If reasonable minds can grasp the importance of what is at stake, and the need for a firm direction that will enable the Covenant to reflect the mind of the (majority of the) Communion, then we may be hopeful that a sense of direction will emerge with which others can align themselves. But if the Covenant goes down to defeat as a result of the fears being so vociferously expressed by those who are unalterably opposed to its very concept, the Communion itself may never recover, or be known hereafter in its present form.

[UPDATE 11/24/2010: The vote was requested by orders, and the Covenant passed with decisive, even overwhelming, majorities in each of the three orders: the Bishops voted unanimously for it, with one abstention (39-0-1); the Clergy were for it, 145-32-11; and the Laity also, 147-25-8. The Church of England has thus added substantially to the momentum for Covenant approval, and has given the Archbishop of Canterbury a strong show of support. Now it will be up to the latter to use all of his diplomatic skills to try to reach an accommodation with the primates and provinces of the Global South.

The GAFCON primates' council have just issued their statement, as well -- more than one month after their meeting at Oxford (presumably it took time to secure everyone's signature to the statement). In it, they declare:
For the sake of Christ and of His Gospel we can no longer maintain the illusion of normalcy and so we join with other Primates from the Global South in declaring that we will not be present at the next Primates’ meeting to be held in Ireland. And while we acknowledge that the efforts to heal our brokenness through the introduction of an Anglican Covenant were well intentioned we have come to the conclusion the current text is fatally flawed and so support for this initiative is no longer appropriate.
Thus the triangulation of the Anglican Communion has begun -- the Global South will not put forth any proposed changes to the Covenant, and instead they call on Anglicans to join with them in attesting to the Jerusalem Declaration. The Archbishop of Canterbury has his work cut out for him.]

Saturday, November 20, 2010

The Canon Should Lay Off the Canons (UPDATED: Even More)

I enjoy reading the Rev. Canon Mark Harris' blog Preludium, I really do. He can always be counted on to present the views of those who currently are at the helm of the Episcopal Church (USA), and he usually does so in an entertaining manner. Being a Canon in the Church, however, does not give anyone particular insights into the Canons. (I believe a course in Church canon law is included in the curriculum at most, if not all, Episcopal seminaries. As professors of canon law would be the first to admit, however, passing one of their courses does not a canon lawyer make.)

Today Canon Harris chooses to take on the case of the Diocese of San Joaquin, which has never expressly acceded to the Canons of the Episcopal Church (USA). Back when it was a Missionary Diocese, it did so in its Constitution. For reasons which are lost in the past, the phrase "and Canons" was left out of the new Constitution's accession clause when the Diocese of San Joaquin formed and was admitted to the Church in 1961. The language was passed at a special convocation of the new Diocese, and then was reviewed by the members of the General Convention's Committees (one in each House) on the Admission of New Dioceses, who in many cases had trained in the law before joining the Church -- several even had LL.D.'s. It is difficult to think that the omission, therefore, was inadvertent -- but who now knows?

All that can be observed is that, not counting foreign dioceses or those which have withdrawn, there are some fifteen current dioceses in the Church which have Constitutions which accede to neither the national Constitution nor the Canons, and another fifteen which, like the Diocese of San Joaquin, accede only to the Constitution. The fact that diocesan accession clauses are all over the place, accordingly, makes any argument which is based on what they do not say a very weak argument, indeed.

Canon Harris presents a little syllogism which to him proves that the Diocese of San Joaquin is indeed subject to the Church's Canons. It runs like this:

A. The General Convention has the authority to enact Canons for the whole Church.

B. The Constitution of the Diocese of San Joaquin has always acknowledged the authority of General Convention.

C. Ergo, the Diocese of San Joaquin must be bound by the Canons of the Church.

Whoa! That conclusion does not in any way follow from the premises, because Premise B assumes that the "authority" which the Diocese acknowledges is the same "authority" of General Convention to enact Canons. Let's just put that assumption to the test, shall we?

Suppose General Convention enacts a Canon which allows horses to be elected bishops in the Church. (Yes, I know, it's a ridiculously extreme example, but that is just the point.) Would Canon Harris contend that the Diocese of San Joaquin was bound by that Canon to recognize a consecrated horse?

Obviously not (I hope). So what does that extreme example tell us? That there are limits on the "authority of General Convention." And that when a Diocese says it "acknowledges the authority of General Convention", it is not saying that it will be bound by whatever canons General Convention decides to enact.

Now take another example, closer to home. In 1982, General Convention amended the Canons to provide that "no unbaptized person shall be eligible to receive Holy Communion in this Church." Did it exceed its authority in doing so? Apparently some dioceses, including the Diocese of San Joaquin and its provisional bishop, are of that opinion -- because they refuse to obey it. (I also know several churches in the Diocese of Oregon which openly ignore it, and doubtless there are many, many others. To my knowledge, Canon Harris has not declared his own practice in this regard.) They invite everyone present, baptized or not, to partake of Communion.

Where are the calls for presentment of the clergy who administer Holy Communion to anyone, regardless of whether they are baptized? Do not their violations of that Canon count as violations of their ordination vows, too? And where, as in the case of a bishop with jurisdiction, like Bishop Lamb of San Joaquin, the disobedience is at a diocesan level, how can anyone argue that Dioceses are "bound" by the Canons of General Convention?

Or take another example, now hitting much closer to Canon Harris' views: can General Convention empower the Presiding Bishop by Canon to issue a Pastoral Directive to any diocesan bishop, at any time, without prior notice, and solely on her own judgment and authority? Is every Diocese "bound" by that Canon? Could, for example, Bishop Jefferts Schori issue a pastoral directive to Bishop Lamb to cease his violations of Canon I.17.7?

Don't look now, but General Convention 2009 did exactly that at Anaheim; no doubt Canon Harris even voted for the change as a clerical deputy from the Diocese of Delaware. But was that change constitutional? Article II, Section 3 of the Church's Constitution provides: "A Bishop shall confine the exercise of such office to the Diocese in which elected." Whence, then, comes the authority of General Convention to make the Presiding Bishop a metropolitan with supreme authority over every other Bishop acting in his or her own Diocese?

Bishop Lawrence of South Carolina has denied that General Convention has that authority, and his Diocesan Convention has backed him up, by refusing to accede to the new Title IV revisions adopted at Anaheim in 2009. But wait -- on Canon Harris' say-so, a Diocese cannot refuse to accede to the Canons, even if their Constitution leaves out the words that do just that. So where does that leave us? Just what "authority" does General Convention have to pass Canons, and under what circumstances are they binding on the Dioceses? And who is the judge of that?

The answers to those questions are not simple, and no doubt Canon Harris will not like them. But in a canonical nutshell, the situation is this: General Convention has no more authority over the several Dioceses than Congress did over the several States under the Articles of Confederation. If Congress in the time of the Articles passed a law which a particular State did not like, that State could simply pass its own contrary law to replace it, and there was absolutely nothing Congress could do about it.

That situation changed, of course, when the Constitutional Convention of 1789 proposed a new Constitution, which contained in Article VI a Supremacy Clause, making the Constitution and all laws of Congress enacted pursuant thereto "the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." From that point forward, no State could pass a law which was contrary to a law passed by Congress (provided the latter was constitutional).

But the Episcopal Church, which also organized in 1789, has never had a Supremacy Clause in its Constitution -- and so in that respect, the authority of its General Convention to pass Canons is on a par with that of Congress under the former Articles. In 1895, as I described in this post, a Standing Commission on the Constitution proposed to General Convention that a Supremacy Clause be added to the Church Constitution. It would have read (with emphasis added):
SECTION 1. For the purposes declared in this Constitution, and under the limitations therein prescribed, the General Synod is the Supreme Legislative Authority in this Church, and, in addition to such powers as are in other Articles of this Constitution expressly or by implication conferred upon it, shall have exclusive power to legislate upon the following subjects:
(a) The qualifications and conditions for making, ordaining, and consecrating Bishops, Priests, and Deacons.

(b) The conditions for the formation, division, and rearrangement of Provinces and Dioceses, and the relations of Provinces and Dioceses to each other.

(c) The foreign relations of the Church.

(d) The general missionary, educational, and charitable work of the Church.
This proposal, made in 1895, was overwhelmingly rejected in the House of Deputies, voting by orders, at the Convention in Baltimore in 1898. The Dioceses showed by their strong negative votes that they did not wish to cede "supreme authority" to General Convention. That is the way the matter was decided in 1898, and that is the way the matter has remained ever since.

People who are not trained in the Canons are often not aware of the significance of legislative history, or of the importance of delving into the work of prior Conventions before coming to any conclusions about what current language means. I do not hold Canon Harris to that standard, and so I do not fault him for his opinions. But his opinions in this instance have nothing to do with the actual "authority of General Convention" in the Episcopal Church (USA).

[UPDATE 11/21/2010: The Rev. Canon Harris, as I predicted above, did not like my answer to his question. What is more typical of those whose views he advocates is that in rejecting the answer I gave above, he also claims that I evaded giving him an answer.

The truth is, I did answer Canon Harris' question about whether accession to ECUSA's Constitution implies consent to be bound by whatever canons General Convention may subsequently choose to enact. He simply chose to ignore the answer -- because it was not to his liking. (I also find it most interesting that Canon Harris had nothing to say about the measures which he helped to enact at General Convention, which are blatantly unconstitutional in regard to the powers they presume to give to the Presiding Bishop. Silence, as they say, speaks volumes.)

So let me now be very direct, since Canon Harris claims not to like my "playing nice". Also, let me again be prompt in replying, even though Canon Harris regards such promptness as worthy of singling out for comment.

The answer to the question of whether a diocese which accedes to ECUSA's Constitution, but not at the same time (in so many words) to its Canons, is nevertheless bound to observe whatever Canons General Convention may decide to enact, is: No, a Diocese is not so bound by whatever General Convention may decide to enact.

The reason for that answer is, as I plainly stated in my original post above, that General Convention is not the "supreme legislative authority" in the Episcopal Church. Those who founded the Church in 1789 omitted the language of supremacy, which they included at the same time in the United States Constitution. And in 1895, General Convention proposed to adopt that same language of supremacy, but the very next Convention overwhelmingly rejected that proposal.

As a consequence, the Dennis Canon as enacted by the Church in 1979 is not the final word on the subject of parish property ownership, because whatever General Convention may choose to enact, a Diocese is free to counteract.

I do not know what makes it so hard for those on the left to grasp that fact. General Convention, I repeat, is not supreme in the Church -- the proposal to make it such was overwhelmingly defeated in 1898, by the House of Deputies, voting by orders, and hence representing the dioceses which elected them.

In the case of the Diocese of San Joaquin, it chose to enact in 2005 a counter to the Dennis Canon, which provided expressly that no parish property would be impressed with a trust in favor of the national Church (or any other entity) without the written consent of the Bishop and the Standing Committee of the Diocese.

Because General Convention was expressly not made the supreme legislative authority in the Church, it had no power to abrogate or declare illegal the enactment by San Joaquin of its counter-Dennis Canon in 2005 -- plus, it did not even try to do so, but let the amendment pass without objection or comment, and made no attempt since 2005 to re-enact the Dennis Canon. The Dennis Canon, therefore, was a nullity in the Diocese of San Joaquin after December 2005, and cannot now be resurrected by ECUSA and the replacement diocese in their suits against the individual parishes. Even if it is I who say it, those lawsuits are doomed to fail.

Moreover, the Dennis Canon itself has no application to the property which is owned by a Diocese. (Do you get that, Lapinbizarre?) No application -- zero -- nada -- zip. (I am sorry to be so blunt, but Canon Harris and his followers demand nothing less than straight talk.) So the current lawsuit, in which I am one of the attorneys defending Bishop Schofield, will not turn on the validity of the Dennis Canon -- as upheld by the California Supreme Court, for the time being (yes -- I have to stick that dagger in, because we are not through yet opposing that decision, too). Regardless, therefore, of what Episcopalians may think about the California Supreme Court decision involving St. James, Newport Beach: get it through your heads that the San Joaquin case does not involve anything about the Dennis Canon.

Is that clear enough for you, Canon Harris, Lapinbizarre, Dah-veed, and similar drum-beaters on the left?

And as for a certain Fred Schwartz, just what is it about reversed and vacated that you do not understand? (Again, I apologize for wielding a two-by-four, but these people positively ask for it by their obtuse remarks.) The only ones who had their "back sides whooped" in the recent decision of the Court of Appeals were Fred Schwartz and all those like him who are not content with being allowed to keep their own parish properties, but want Bishop Lamb to take over the properties of the majority in San Joaquin who voted to leave the very people who think that way.

If those of you who are so committed to the program of the Episcopal Church (USA) -- which seeks to ruin and impoverish those who disagree with it -- choose at the same time to believe that a thorough defeat at the appellate level is instead some kind of victory, then I pray that you may eventually come to realize all that is wrong about your overweening claims of authority, and to regret all the resources you have devoted to such a pursuit. (You may choose to spurn these remarks, but I say them as a fellow Episcopalian, and not as an attorney opposing your attorneys. I personally believe that donating or pledging funds to such a pursuit is wrong. And, by the way -- neither I nor any of Bishop Schofield's attorneys currently receive payment for our work on behalf of Bishop Schofield. At ECUSA's request, Merrill Lynch froze the Diocese's accounts, and so it cannot pay us, even if we wished it to do so. At the same time, ECUSA has seen to it that Bishop Lamb's attorneys are being paid "handsomely" -- but then, that is a debt which you in the remnant San Joaquin are committed to repay, no matter what happens -- right?)

Again, I would personally prefer that it were unnecessary to be so blunt, but when the olive branch of reason is rejected in so uncouth a fashion, then a two-by-four is required in response. So be it. As far as this curmudgeon is concerned, this is the end of the matter. Since those who support Canon Harris will disregard anything I say, further response is superfluous.]

Thursday, November 18, 2010

Translating the Appellate Decision in the San Joaquin Case

As briefly reported in this previous post, the Fifth District Court of Appeal today reversed the grant of summary adjudication by the Fresno trial court in favor of the Episcopal Church (USA) and Bishop Jerry Lamb. It held that the trial court should not have adjudicated the issue of who was the proper Bishop of San Joaquin, with entitlement to the assets of the departed Diocese of San Joaquin (now called the "Anglican Diocese of San Joaquin").

The second amended complaint (it does not appear to be on line; here is a link to its predecessor, which is nearly identical) brought by ECUSA and Bishop Lamb contained seven causes of action, for (1) a judicial declaration that the amendments finally adopted by the Diocese in December 2007 were illegal and void under the Constitution and Canons of ECUSA, and that as a consequence Bishop Lamb had succeeded to the position as bishop of the Diocese, incumbent of its corporation sole, and president/trustee of its associated property-holding entities; (2) a declaration that all money and property in the hands of the Diocese, the corporation sole and the other related entities were held in trust for ECUSA, and could not be used in any other Church; (3) a judgment that Bishop Schofield's "diversion" of the Diocese's assets constituted a breach of his fiduciary duties owed to the Episcopal Church (USA); (4) a judgment that Bishop Schofield and the related entities had wrongfully appropriated the assets of the Diocese to their own use; (5) a judgment ordering Bishop Schofield and his staff to vacate the Diocesan offices in Fresno, and to turn over all the Diocesan property to Bishop Lamb; (6) a judgment decreeing that the deeds putting title to the diocesan assets into the hands of its related entities were fraudulent; and (7) a judgment quieting the title of the disputed assets in the name of Bishop Lamb.

Bishop Lamb and ECUSA filed a motion to have the court grant the declaratory judgment requested by the first cause of action only: this is what the courts call a "motion for summary adjudication." (It is summary relief, because it is granted without going to trial, based on a showing that there are no disputed facts which have to be tried.) And the trial court, after postponing the matter six times, granted that motion on July 21, 2009, as discussed in this post. The result was a victory for the plaintiffs which, if it stood, would have virtually ensured that the outcome of the rest of the case would be in their favor, as well.

Normally, as a decision on only one of the seven causes of action in the complaint, the ruling by the trial court would not be reviewed until after it had entered judgment on all the other causes of action, as well. But because this ruling had the ability to taint all those other causes of action, and make a complete retrial of the whole case necessary if it should prove to have been granted in error, Bishop Schofield and the related diocesan entities asked the Fifth District Court of Appeal to review the correctness of the ruling now, before the whole case was over. And in an indication of what was to come, the Court of Appeal granted that request.

The case was fully briefed to the Court of Appeal by the end of last year, but it took until this October for the oral arguments to occur. I described that occasion, in which I participated on behalf of Bishop Schofield, in this post. I noted that the very first question out of the Justices' mouth was: "How can this Court decide who is the proper Bishop of San Joaquin?" And that proved to be the Court's sticking point. There were further indications from the Court along these lines as the argument proceeded:
More than once, their questions indicated a doubt that civil courts could (or should) decide the issue of who was the Bishop of San Joaquin, without getting entangled in ecclesiastical matters which the courts are barred by the First Amendment from considering.

Justice Cornell got right to the heart of things when he asked ECUSA's attorney: "If you think Bishop Lamb is the Bishop of San Joaquin, with the right to have all the Diocese's property, then why did you move for summary judgment on this complex question of who is the rightful bishop of San Joaquin? Why didn't you simply bring a lawsuit to regain possession of the property"? (The justice used the legal term for such a lawsuit, called an "action in ejectment.") The attorney admitted, "We do have such a cause of action in our complaint, your honor." "Well, why didn't you choose to try that cause of action first?" Justice Cornell persisted. The attorney for ECUSA was candid in his response, and admitted they had requested first a declaration from the court that Bishop Lamb was the Bishop of San Joaquin because they believed "such a judgment would help sort out all of the property matters." It was not clear that the answer was what the justices were looking for. They seemed to prefer an approach where the court would be asked to decide just straightforward issues of property ownership, without having to delve into the arcana of church constitutions and canons.
Now we have the benefit of the Court's written opinion, holding exactly as Justice Cornell indicated, that if Bishop Lamb wants to claim the diocesan properties from Bishop Schofield, he should simply prove that the latter had no right to continue to hold the property, and forget about trying to prove that he was entitled to all the property just by virtue of being recognized as "the Bishop of San Joaquin" by the Episcopal Church. At issue, as far as the Court of Appeals is concerned, is not who is the actual bishop of what diocese, but who currently holds legal title to the assets in dispute, and did those entities or persons acquire their title in accordance with standard principles of property law, applied neutrally and without any reliance upon the Church's religious doctrines.

At the same time, I read the opinion to mean that the issue of whether a Diocese may leave the Church, and what the legal consequences of such a departure are on the entity's status under California law, is now officially off the table -- it is part of what the Court considers to be non-justiciable issues involving religious structures, government, and polity. It said (slip opinion at p. 9):
Three facts are established by the record and are, in any event, “ecclesiastical facts” that the courts have no jurisdiction to adjudicate. First, before and through January 11, 2008, Schofield was the Episcopal Bishop of the Diocese of San Joaquin; on that day, his powers as Episcopal Bishop were suspended by the national church. Second, after March 29, 2008, Lamb was the Episcopal Bishop of the Diocese of San Joaquin, duly recognized by the national church. Third, at some point Schofield became the Anglican Bishop presiding over an Anglican Diocese of San Joaquin, affiliated with the Anglican Province of the Southern Cone of South America. In further proceedings in the trial court, these facts may be relevant to the court's consideration of the issues before it, but the validity of such removals and appointments are not subject to further adjudication by the trial court. The continuity of the diocese as an entity within the Episcopal Church is likewise a matter of ecclesiastical law, finally resolved, for civil law purposes, by the Episcopal church's recognition of Lamb as the bishop of that continuing entity.
Notice how the Court fudges the ecclesiastical points at issue here. It declares that "at some point [Bishop] Schofield became the Anglican Bishop presiding over an Anglican Diocese of San Joaquin," without deciding that such point occurred upon the passage of the operative amendments to the Diocese's Constitution on December 7, 2007 -- well before the Episcopal Church's Presiding Bishop claimed the power to inhibit Bishop Schofield on January 11, 2008. If Bishop Schofield became the "Anglican Bishop of San Joaquin" upon the passage of the amendments, then he could no longer be inhibited or deposed by the Episcopal Church (USA), because he had already left that body when they went through the motions of pretending to inhibit and then depose him. Thus the transfers of property to the related diocesan entities, about which the plaintiffs are complaining, occurred when Bishop Schofield was no longer subject to the jurisdiction of the Episcopal Church, and was under the jurisdiction of the Province of the Southern Cone. The only question for the trial court, then, will be whether those transfers were in violation of some kind of "express or implied trust" imposed on the Diocese's property at that time.

The same passage just quoted also appears to take off the table any inquiry by the secular courts into the validity of the "Episcopal Diocese of San Joaquin" as a continuing entity in the Episcopal Church. The Court in effect says that the Church gets to decide that issue, and whatever it says is one of its dioceses is binding on the courts, regardless of whether the Church followed its own procedures in setting it up. But while a "diocese" may thus be seen as continuous in the eyes of the Episcopal Church, that entity, as well as the entity that departed the Church, are each still governed by, and subject to, the "First Amendment rights of individuals and corporations (see Citizens United v. Federal Election Comm’n (2010) ___ U.S. ___, ___ [130 S.Ct. 876, 899]), general California statutory and common law principles governing transfer of title by the legal title holder, the law of trusts, including establishment of trusts and transfers by a trustee in contravention of a trust upon the property (if a trust is established by the evidence), and corporations law, including the law of corporations sole (see Corp. Code, § 10010) and general principles of corporate governance." (Slip opinion, at p. 10.)

Translation: "ECUSA may call any group of its followers it wants a 'diocese' in its Church, even a tiny minority who remains behind after the great majority leaves. But whether the majority or the minority succeeds to legal title to the property is a matter of civil, not ecclesiastical, law -- including First Amendment rights of freedom of association, trust law, and the law of corporations and corporate governance. Resolution of those issues on neutral principles will decide the ultimate ownership of the disputed property, and not resolution of who is the bishop, which is an ecclesiastical question."

[UPDATE 11/19/2010: ENS and other websites on the left are repeating a statement they attribute to Bishop Lamb's Chancellor to the effect that the decision "means that 'the defendants can no longer assert in court that a diocese has the right to unilaterally secede from the Episcopal Church, or that Bishop Lamb is somehow not the bishop of the diocese.'" I have already noted above how the Court's ruling takes the irregularities in the installation of +Lamb as the provisional bishop off the table, for the purposes of this lawsuit. However, it by no means follows from the decision that defendants "can no longer assert in court that a diocese has a right to unilaterally secede [sic] from the Episcopal Church." Indeed, the decision reversed and vacated a ruling by the trial court stating exactly that.

The reference in the decision to the settled "continuity" of the "Episcopal Diocese" means just what I stated above -- that the Church can choose to recognize any minority it wants as a Diocese after the majority has voted to leave. When a majority amends the organization's governing documents, as happened here, the organization continues with the documents as amended, and the minority can (if it chooses) continue with the documents as they were before they were amended. There are now two organizations where there was only one before, and each shares a form of continuity with that earlier entity. After all, along with holding that the Church could recognize the minority as a continuing Diocese, the Court also held that it was an unchallengeable "ecclesiastical fact" that Bishop Schofield was the Anglican Bishop of the Anglican Diocese of San Joaquin. It could not have recognized that ecclesiastical fact if, as ENS claims the Chancellor said, it had held that a diocese has no right to leave the Church.]

When the case goes back to the trial court, therefore, the first thing that will happen is that the Church and Bishop Lamb will ask for leave to amend their (now) fourth amended complaint yet another time, and remove or entirely reframe their first cause of action. Or if they do not, Bishop Schofield will bring a motion to dismiss it, on the strength of the appellate opinion. (The Court says, at page 9 again: "The dispute set forth in the request for declaratory relief in the first cause of action, namely, whether Schofield or Lamb is the incumbent Episcopal Bishop of the Diocese of San Joaquin, is quintessentially ecclesiastical. Accordingly, the trial court erred in adjudicating that cause of action and, upon proper motion, must dismiss that cause of action" [emphasis added].)

However, the plaintiffs Lamb and ECUSA first have the option of petitioning the Court of Appeal for a rehearing, which they must do within the next fifteen days. If they file such a petition, the Court has to act on it on or before December 20, or else the Rules of Court specify that it will be deemed to have been denied. If the Court does not act on the petition by then, or if the plaintiffs do not file for rehearing, then they will have until December 28 to file a petition for review with the California Supreme Court. The grounds for any such request to the Supreme Court would have to be "to secure uniformity of decision or to settle an important question of law." Since there are no other California decisions on this precise point, it would be the latter ground for which the plaintiffs would have to argue as a reason to grant their petition. And though I am admittedly biased, I have difficulty seeing how a holding that a particular point of ecclesiastical identity is not decidable by the secular courts involves "an important question of law" which needs settling by the Supreme Court.

What does this decision signify for the other nine cases pending in various local courts in the Diocese of San Joaquin? (These are the ones filed, since the Fresno trial court's decision in this case, by Bishop Lamb and the Episcopal Diocese against the individual incorporated parishes within the Anglican Diocese.) It is probably too early too tell. More skirmishes will have to occur, and the facts become clearer, before that question may be definitively answered. For each of the parishes in question did not leave the Diocese to which they have always belonged; instead, the Diocese in question left the Church to which it belonged, and the parishes came along with the Diocese. Now that the Court of Appeal has, in effect, ruled that state courts cannot inquire into the ecclesiastical legalities of that departure (which would require them at the same time to decide who is the proper Bishop of San Joaquin), it would appear that the local courts might be equally well precluded from inquiring whether the parishes correctly followed the Diocese.

Once again, if we take the present opinion as our guide, it would seem to say that the ownership of the individual parishes' property will have to be decided based on neutral principles of property law -- the deeds and the parish articles will be examined, as well as the diocesan and the national constitution and canons. And here is where the parishes have some breathing room. For the Dennis Canon was never adopted as such in the Diocese of San Joaquin, from the time it was enacted at the national level in 1979 until the date the Diocese withdrew from the national Church in December 2007. When it was admitted as a Diocese in 1961, San Joaquin acceded only to ECUSA's Constitution, and said nothing about acceding to its canons; its diocesan Constitution still reads the same way today, under Bishop Lamb. Indeed, the Diocese enacted in 2005 a type of anti-Dennis Canon, which negated any trust interest in diocesan or parish property for the benefit of the national Church:
No ownership or proprietary interest in any real or personal property in which title and/or ownership is held by the Diocese of San Joaquin, its churches, congregations, or institutions, shall be imputed to any party other than the Bishop as Corporation Sole (including a trust, express or implied) without the express written consent of the Bishop and the Standing Committee of the Diocese.
Given these circumstances, therefore, the most important language in the Court's opinion may well be in its final three sentences, directed to the trial court (emphasis added):
Other neutral principles of civil law may be relevant; and the governing documents of the diocese and the national church, to the extent those documents may establish trust relationships and limit or expand corporate powers. (See Episcopal Church Cases, supra, 45 Cal.4th at p. 485.) Thus, the trial court may be required to determine whether properties claimed by both plaintiffs and defendants were actually transferred by their legal owners under California law, and whether otherwise-valid transfers violated the provisions of a valid express or implied trust imposed on the property. But we emphasize that in resolution of, for example, trust issues, the court is required to determine the terms of the trust based on the applicable documents and the civil law, not on the basis of religious doctrine. (See Jones v. Wolf, supra, 443 U.S. at p. 604.)
This language pretty well disposes of the many pages of its briefs which ECUSA devoted to arguing that it was "hierarchical" because of its polity and so-called "three-tiered" structure. As I noted in my earlier post, the Court does not use the word "hierarchical" anywhere in its opinion. Under neutral principles, the character of a church as "hierarchical" is important only if there has been an express trust created nationwide through an exercise of hierarchical powers. And since, as also pointed out, the Dennis Canon creates no such trust in the property of any Episcopal Diocese, there is no other language in the national Constitution or Canons on which ECUSA can base a claim for the imposition of a legally valid trust on diocesan assets.

In short, 815's strategy of claiming the property of a departing Diocese because it is somehow "hierarchical" today went down to defeat in Fresno. How the Presiding Bishop and her attorneys react to this decision will speak volumes for their intentions to keep relying on that strategy to win cases in the secular courts.

Fresno Appellate Court Reverses Trial Court

The Fifth District Court of Appeal in Fresno has just issued an eleven-page opinion in which it grants the petition for review filed by Bishop John-David Schofield from the July 21, 2009 order of the trial court granting ECUSA's and Bishop Lamb's motion for summary adjudication. The appellate court has ordered the trial court to vacate (erase) its previous order, and to deny the plaintiffs' motion.

The ground upon which the reversal is ordered is that the case as presented by the plaintiffs Lamb and ECUSA in their first cause of action is not properly decidable by the secular courts without their becoming too entangled in First Amendment issues, such as who is the proper Bishop of San Joaquin. It holds that ECUSA's recognition of Bishop Lamb is conclusive as to his position as Bishop of the Episcopal Diocese of San Joaquin, and to the continuity of that entity "for ecclesiastical purposes", but it goes on to hold that the validity of the transfers of title to diocesan property by Bishop Schofield while he was still the Episcopal Bishop will have to be decided upon neutral principles of state corporate law, and also any relevant governing documents of the Diocese and the national Church.

This decision therefore will require ECUSA to prove through its documents that there is a trust in its favor on all diocesan church property for it to succeed in its claims to diocesan assets. And since the Dennis Canon expressly applies only to parish property, and not to any property of a diocese, the element of proof required in the national governing instruments is lacking. (The word "hierarchical" does not appear in the Court's opinion.)

However, this is just a first quick reading of the decision, which may be downloaded from this (temporary) link. I will have more to say about the decision in a later post.

Wednesday, November 17, 2010

Changing the Constitution: Final Approval in 1901

[This series on the history of the revisions made to the Constitution of the Episcopal Church (USA) over the years 1889-1901 is in four parts. Part I is here, Part II is here, and Part III is here; this post is the fourth and final part.]

In contrast to the mood at the General Convention of 1898, which had resulted in a wiping of the slate clean and a fresh start on Constitutional revisions, the General Convention which met for the first time in San Francisco beginning on the first Wednesday in October 1901 was all sweetness and light. The changes finally adopted in 1898 had been circulated among all the Church's dioceses in the intervening years, and the deputies came prepared to finish the process of revision quickly.

On its second day of meeting, the House of Deputies took up one by one each of the first seven articles of the new Constitution, together with the proposed new title for that document, and approved them all by mostly overwhelming majorities of at least 50 of the 59 dioceses in the Church. The one exception was the first article, which was approved by the minimum majority of dioceses represented. Nevertheless, it was approved, and the first seven articles then went to the House of Bishops, which approved them on its third day.

The House finished its work on the remaining articles on its fourth day, without any significant dissent. Ratification of those articles followed in the House of Bishops on the fifth day, and the new Constitution was complete. So that this historical document may be compared with the current version, I reproduce it below.



Section 1. There shall be a General Convention of this Church, consisting of the House of Bishops and the House of Deputies, which Houses shall sit and deliberate separately; and in all deliberations freedom of debate shall be allowed. Either House may originate and propose legislation, and all acts of the Convention shall be adopted and be authenticated by both Houses.

Sec. 2. Every Bishop of this Church having jurisdiction, every Bishop Coadjutor, and every Bishop who by reason of advanced age and bodily infirmity arising therefrom has resigned his jurisdiction, shall have a seat and a vote in the House of Bishops. A majority of all Bishops entitled to vote, exclusive of Foreign Missionary Bishops and of Bishops who have resigned their jurisdictions, shall be necessary to constitute a quorum for the transaction of business.

Sec. 3. The Senior Bishop of this Church in Presiding the order of consecration, having jurisdiction within the United States, shall be the Presiding Bishop of the Church. He shall discharge such duties as may be prescribed by the Constitution and the Canons of the General Convention. But if the Presiding Bishop shall resign his office as such, or if he shall resign his episcopal jurisdiction, or if by reason of infirmity he shall become disabled, the Bishop next in seniority by consecration, having jurisdiction within the United States, shall thereupon become the Presiding Bishop.

Sec. 4. The Church in each Diocese which has been admitted to union with the General Convention shall be entitled to representation in the House of Deputies by not more than four Presbyters, canonically resident in the Diocese, and not more than four Laymen, communicants of this Church, having domicile in the Diocese; but the General Convention by Canon may reduce the representation to not fewer than two Deputies in each order. Each Diocese shall prescribe the manner in which its Deputies shall be chosen.

To constitute a quorum for the transaction of business, the Clerical order shall be represented by at least one Deputy in each of a majority of the Dioceses entitled to representation, and the Lay order shall likewise be represented by at least one Deputy in each of a majority of the Dioceses entitled to representation.

On any question, the vote of a majority of the Deputies present shall suffice, unless otherwise ordered by this Constitution or, in cases not specially provided for by the Constitution, by Canons requiring more than a majority, or unless the Clerical or the Lay representation from any Diocese require that the vote be taken by orders. In all cases of a vote by orders, the two orders shall vote separately, each Diocese having one vote in the Clerical order and one in the Lay order; and the concurrence of the votes of the two orders, by not less than a majority
in each order of all the Dioceses represented in that order at the time of the vote, shall be necessary to constitute a vote of the House.

Sec. 5. In either House any number less than a quorum may adjourn from day to day. Neither House, without the consent of the other, shall adjourn for more than three days, or to any place other than that in which the Convention shall be sitting.

Sec. 6. The General Convention shall meet in every third year on the first Wednesday in October, unless a different day be appointed by the preceding Convention, and at the place designated by such Convention; but if there shall appear to the Presiding Bishop of the Church sufficient cause for changing the place so appointed, he may appoint another place for such meeting. Special meetings may be provided for by Canon.


Section 1. In every Diocese the Bishop or the Bishop Coadjutor shall be chosen agreeably to rules prescribed by the Convention of that Diocese. Missionary Bishops shall be chosen in accordance with the Canons of the General Convention.

Sec. 2. No one shall be ordained and consecrated Bishop until he shall be thirty years of age; nor without the consent of a majority of the Standing Committees of all the Dioceses, and the consent of a majority of the Bishops of this Church exercising jurisdiction within the United States. But if the election shall have taken place within three months next before the meeting of the General Convention, the consent of the House of Deputies shall be required in place of that of a majority of the Standing Committees. No one shall be ordained and consecrated Bishop by fewer than three Bishops.

Sec. 3. A Bishop shall confine the exercise of his office to his own Diocese or Missionary District, unless he shall have been requested to perform episcopal acts in another Diocese or Missionary District by the Ecclesiastical Authority thereof, or in a vacant Missionary District by the Presiding Bishop of this Church, or unless he shall have been authorized and appointed by the House of Bishops, or by the Presiding Bishop by its direction, to act temporarily in case of need within any territory not yet organized into Dioceses or Missionary Districts of this Church.

Sec. 4. A Bishop may not resign his jurisdiction without the consent of the House of Bishops.


Bishops may be consecrated for foreign lands upon due application therefrom, with the approbation of a majority of the Bishops of this Church entitled to vote in the House of Bishops, certified to the Presiding Bishop; under such conditions as may be prescribed by Canons of the General Convention. Bishops so consecrated shall not be eligible to the office of Diocesan or of Bishop Coadjutor of any Diocese in the United States or be entitled to vote in the House of Bishops, nor shall they perform any act of the episcopal office in any Diocese or Missionary District of this Church, unless requested so to do by the Ecclesiastical Authority thereof.


In every Diocese a Standing Committee shall be appointed by the Convention thereof. When there is a Bishop in charge of the Diocese, the Standing Committee shall be his Council of Advice; and when there is no such Bishop, the Standing Committee shall be the Ecclesiastical Authority of the Diocese for all purposes declared by the General Convention. The rights and the duties of the Standing Committee, except as provided in the Constitution and Canons of the General Convention, may be prescribed by the Canons of the respective Dioceses.


A Protestant Episcopal Church in any of the United States, or any Territory thereof, not now represented, may, at any time hereafter, be admitted on acceding to this Constitution; and a new Diocese, to be formed from one or more existing Dioceses, may be admitted under the following restrictions, viz.: —

No new Diocese shall be formed or erected within the limits of any other Diocese, nor shall any Diocese be formed by the junction of two or more Dioceses, or parts of Dioceses, unless with the consent of the Bishop and Convention of each of the Dioceses concerned, as well as of the General Convention, and such consent shall not be given by the General Convention until it has satisfactory assurance of a suitable provision for the support of the Episcopate in the contemplated new Diocese.

No such new Diocese shall be formed which shall contain less than six Parishes, or less than six Presbyters who have been for at least one year canonically resident within the bounds of such new Diocese, regularly settled in a Parish or Congregation, and qualified to vote for a Bishop. Nor shall such new Diocese be formed if thereby any existing Diocese shall be so reduced as to contain less than twelve Parishes, or less than twelve Presbyters who have been residing therein and settled and qualified as above mentioned : Provided, that no city shall form more than one Diocese.

In case one Diocese shall be divided into two or more Dioceses, the Diocesan of the Diocese divided may elect the one to which he will be attached, and shall thereupon become the Diocesan thereof; and the Bishop Coadjutor if there be one, may elect the one to which he will be attached; and if it be not the one elected by the Bishop, he shall be the Diocesan thereof.

Whenever the division of a Diocese into two or more Dioceses shall be ratified by the General Convention, each of the Dioceses shall be subject to the Constitution and Canons of the Diocese so divided, except as local circumstances may prevent, until the same may be altered in either Diocese by the Convention thereof. And whenever a Diocese shall be formed out of two or more existing Dioceses, the new Diocese shall be subject to the Constitution and Canons of that one of the said existing Dioceses to which the greater number of Clergymen shall have belonged prior to the erection of such new Diocese, until the same may be altered by the Convention of the new Diocese.


Section 1. The House of Bishops may establish Missionary Districts in States and Territories, or parts thereof not organized into Dioceses. It may also from time to time change, increase, or diminish the territory included in such Missionary Districts in such manner as may be prescribed by Canon.

Sec. 2. The General Convention may accept a cession of the territorial jurisdiction of a part of a Diocese when such cession shall have been proposed by the Bishop and the Convention of such Diocese, and consent thereto shall have been given by three-fourths of the parishes in the ceded territory, and also by the same ratio of the parishes within the remaining territory.
Any territorial jurisdiction or any part of the same, which may have been accepted from a Diocese by the General Convention under the foregoing provision, may be retroceded to the said Diocese by such joint action of all the several parties as is herein required for its cession: Provided, that such action of the General Convention, whether of cession or retrocession, shall be by a vote of two-thirds of all the Bishops present and voting and by a vote of two-thirds of the House of Deputies voting by orders.

Sec. 3. Missionary Districts shall be organized as may be prescribed by Canon of the General Convention.


Dioceses and Missionary Districts may be united into Provinces in such manner, under such conditions, and with such powers, as shall be provided by Canon of the General Convention; provided, however, that no Diocese shall be included in a Province without its own consent.


No person shall be ordered Priest or Deacon until he shall have been examined by the Bishop and two Priests and shall have exhibited such testimonials and other requisites as the Canons in that case provided may direct. No person shall be ordained and consecrated Bishop, or ordered Priest or Deacon, unless at the time, in the presence of the ordaining Bishop or Bishops, he shall subscribe and make the following declaration:
"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 Protestant Episcopal Church in the United States of America."
No person ordained by a foreign Bishop, or by a Bishop not in communion with this Church, shall be permitted to officiate as a Minister of this Church until he shall have complied with the Canon or Canons in that case provided and also shall have subscribed the aforesaid declaration.


The General Convention may, by Canon, establish a Court for the trial of Bishops, which shall be composed of Bishops only. Presbyters and Deacons shall be tried by a Court instituted by the Convention of the Diocese, or by the Ecclesiastical Authority of the Missionary District, in which they are canonically resident.

The General Convention, in like manner, may establish or may provide for the establishment of Courts of Review of the determinations of Diocesan or other trial Courts.

The Court for the review of the determination of the trial Court, on the trial of a Bishop, shall be composed of Bishops only.

The General Convention, in like manner, may establish an ultimate Court of Appeal, solely for the review of the determination of any Court of Review on questions of doctrine, faith, or worship.

None but a Bishop shall pronounce sentence of admonition, or suspension, deposition, or degradation from the ministry, on any Bishop, Presbyter, or Deacon.

A sentence of suspension shall specify on what suspension, terms or conditions and at what time the suspension shall cease.


The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church, together with the Psalter or Psalms of David, the Form and Manner of Making, Ordaining, and Consecrating Bishops, Priests, and Deacons, the Form of Consecration of a Church or Chapel, the Office of Institution of Ministers, and Articles of
Religion, as now established or hereafter amended by the authority of this Church, shall be in use in all the Dioceses and Missionary Districts of this Church.

No alteration thereof or addition thereto shall be made unless the same shall be first proposed in one triennial meeting of the General Convention, and by a resolve thereof be sent within six months to the Secretary of the Convention of every Diocese, to be made known to the Diocesan Convention at its next meeting, and be adopted by the General Convention at its next succeeding triennial meeting by a majority of the whole number of Bishops entitled to vote in the House of Bishops, and by a majority of the Clerical and Lay Deputies of all the Dioceses entitled to representation in the House of Deputies voting by orders. Provided, however, that the General Convention at any meeting shall have power to amend the Tables of Lessons by a majority of the whole number of Bishops entitled to vote in the House of Bishops, and by a majority of the Clerical and Lay Deputies of all the Dioceses entitled to representation in the House of Deputies voting by orders.


No alteration or amendment of this Constitution shall be made unless the same shall be first proposed at one triennial meeting of the General Convention, and by a resolve thereof be sent to the Secretary of the Convention of every Diocese, to be made known to the Diocesan Convention at its next meeting, and be adopted by the General Convention at its next succeeding triennial meeting by a majority of the whole number of Bishops entitled to vote in the House of Bishops, and by a majority of the Clerical and Lay Deputies of all the Dioceses entitled to representation in the House of Deputies voting by orders.
The work of revising the Constitution and Canons of the Church was still not complete; the 1901 General Convention adopted further changes to Articles I, V and X of the Constitution which were sent out to the several dioceses for final action at the General Convention of 1904. Chief among these proposed changes was a provision for the election of the Presiding Bishop -- a change which, due to many intervening institutional changes of mind by the House of Bishops, would not finally be made until 1919. (Even then, the senior bishop then in office -- Bishop Daniel Tuttle, who had opposed making the office elective -- did not die until after the Convention of 1922, so that the first Presiding Bishop to be elected in General Convention was Bishop Murray of Maryland, in 1925.) Of the additional changes proposed in 1901 (including the rewriting of Article V into what is very close to its current form), the only such change not approved at Boston in 1904 was the proposal for an elected Presiding Bishop.

What lesson, then, may be drawn from this excursion through the history of the constitutional revisions which began in 1889? Surely this one: the proposal to strengthen the governance of the national Church, by making its General Convention into a supreme legislative authority whose enactments would automatically be superior to and binding on every member diocese, was overwhelmingly rejected by the votes of the member dioceses in 1898. Instead, the dioceses chose to adhere to the original model established by the founders, in accordance with the six fundamental principles they adopted at their first meeting in 1784, the last of which stated:
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.
The Church's governing structures, therefore, are structures of delegated powers. They may exercise only the powers granted to them in the Constitution -- and no others. This is why the latest changes to Title IV of the Canons are unconstitutional: they grant the diocesan bishops, and the Presiding Bishop in particular, wide-ranging powers of discipline over the clergy which violate the reserved powers of the dioceses themselves. And this is also why the Episcopal Church is not a hierarchical church, from a national point of view -- because General Convention has absolutely no power over individual dioceses, and cannot order them to do anything. General Convention, on the few days it meets every three years, is nothing more than a collection of the dioceses assembled for the purposes of deciding upon a common plan, budget and mission for the next three years. It is the dioceses themselves -- whose existence is continuous -- which must carry out the plan, budget and mission thus collectively decided upon, and ideally the bureaucracy at 815 exists only to assist the dioceses in that ongoing function.

Under a series of recent Presiding Bishops, however, 815 has taken on a life and power of its own -- and under our current Presiding Bishop, that office itself has assumed powers never dreamed of by the founders. There is an ongoing conspiracy among the bishops of the Church to allow Katharine Jefferts Schori to assert those unprecedented powers, and it has led to a deterioration in relationships among the several dioceses. It has also brought the Church to the brink of a constitutional crisis, which will become most evident after next July, if the Presiding Bishop and other bishops begin to wield the arbitrary powers granted to them under the new Title IV provisions.

It is time for the bishops to pause on their way to the edge of the cliff, and to look back at the Church's history before they decide to plunge over the precipice. If they will only do so now, there remains time to pull back, and to resume the more moderate path laid out for them by those who wrote the Constitution in 1789, and by those who revised it in 1901. The Church must remain true to its founding principles, or it will no longer be the Episcopal Church in the United States of America.

Monday, November 15, 2010

Lack of Conviction and Passionate Intensity: a Fatal Blend

Previously I wrote about the current Archbishop of Canterbury's style of governance in this post. I drew on an analysis first made by the Rev. Canon Dr. Giles Fraser:
[Dr Williams embodies] what one might call the theology of the peace negotiator or mediator. Simply put, the mediator pursues a theology that refuses to accept that a disagreement can ever reach a point where there is no benefit to be gained from further conversation. . . .

. . . Put a different way, it is a refusal to accept that two seemingly irreconcilable positions are indeed irreconcilable. The mediator is the supreme pragmatist, employing all the philosophical strategies up his or her sleeve to keep opponents round the table, to keep them talking.

The philosophical substructure of this theology of mediatory conversation is Hegelian; indeed, I would want to call it dialectical---though the three thinkers that matter most in this book, Shanks, Rose and Rowan Williams (all Hegelians of sorts), refuse to equate the drivers of Hegel's thought with the crab-like progress of thesis, antithesis and synthesis. Instead, Williams perfectly describes the Hegelianism of the mediating peace negotiator when he writes: 'Reflection requires that the plain opposition of positive and negative be left behind. Thinking is not content with the abstraction of mutual exclusivities, but struggles to conceive of a structured wholeness nuanced enough to contain what appeared to be contradictories.'

As it turns out, this 'struggle to conceive of a structural wholeness nuanced enough to contain what appeared to be contradictories' is a pretty accurate summary of the Archbishop's strategy in dealing with the warring parties of contemporary Anglicanism. Indeed, rarely has there been a more convinced exponent of the theology of the peace negotiator than Rowan Williams. . . .
Another way of describing Dr Williams' approach to dealing with Anglican controversies is set out in the recent book by the Rev. Charles Raven, Shadow Gospel: Rowan Williams and the Anglican Communion Crisis:
Although signs of hope are undoubtedly emerging, a secure future for the Anglican Communion rests on an accurate diagnosis of its present ills. In this account of Rowan Williams' leadership as Archbishop of Canterbury a kind of tragedy unfolds, in which the weight of an historic institution and the resourcefulness of a deeply learned mind are brought to bear in an attempt to sustain the unsustainable - an illusory middle ground between two fundamentally opposed visions of Anglican identity.

The one is confessional and is being articulated with increasing confidence by the leadership of the Global South; the other represents the seduction of the Church by the spirit of the age, as seen in its most developed form in the increasingly apostate behaviour of The Episcopal Church in the United States. This analysis demonstrates that Dr Williams' theology is not only alien to the former, but also powerless to resist the latter and, in practice, the result is a doctrinally incoherent Communion barely held together by a mixture of sentiment and improvisation.

The understanding offered here is that at the heart of these difficulties is a shadow gospel; a theological project which can speak the language of orthodox faith, yet subverts the supremacy of Scripture and the essential nature of Christian truth itself.

This shadow gospel privileges form over substance and under Rowan Williams' leadership the pragmatic ethos of Anglican Communion institutions has sat comfortably with this emphasis upon ecclesiastical process rather than doctrinal content, as exemplified by the Windsor Covenant and the associated listening programme of so called 'indaba'. But these strategies are manifestly failing and it is now time to take seriously the calls emerging from the Global South for what we might call a 'new wineskin' of governance structures which will free Anglicanism to express its true confessional identity and make a fresh start in the re-evangelisation of the West.
What both Dr. Fraser and the Rev. Raven conclude is that the Archbishop's inability to withstand the willful acts in derogation of the Communion taken by ECUSA and the Anglican Church of Canada -- even following the Windsor Report -- leaves the other members of the Communion with no choice but to act on their own, whether singly or in concert. The inevitable result of this loose style of leadership will be a fragmentation of the Communion, which is becoming more and more evident as the upcoming Primates' Meeting, announced for the end of January 2011 at the Emmaus Conference Center in Dublin, Ireland, draws near. Various reports suggest that there will be more than one "Meeting," in which the groups opposed will not meet together, but separately -- if the GAFCON Primates even agree to meet with the Archbishop at all.

And now, look for a moment at an entirely different style of governance, which could be said to represent the opposite end of the spectrum. I refer to the governance of ECUSA by its Primate, the Most Rev. Katharine Jefferts Schori. By all accounts, hers is an autocratic style of control: she brooks no insubordination to her decisions, unilaterally decides when it is appropriate to intervene in the internal affairs of dioceses, when to file suits against those who have left the Church, and to whom a diocese may not sell church properties, bends the Canons to suit her objectives and overrules any objections to her interpretations of them, and is soon to assume the mantle of a metropolitan -- General Convention having obligingly conferred upon her those powers while being wholly ignorant and uninformed of what they were doing. (Though I have made inquiries of those who drafted the changes to Title IV, to date not one of them has come forward to defend the intentionality of their expansion of the Presiding Bishop's powers in the face of the Constitution.)

The Presiding Bishop's response to the remarks by informed observers that the powers conferred upon her are unconstitutional is all too typical: she simply ignores them. She does not claim to agree or to disagree; she simply will not engage in a dialogue, except to refer all queries to her Chancellor. No one else in authority in the Church will dare to speak until she has spoken. The result is a stalemate, and starting next July, no bishop or diocese can be comfortable about their status.

Let the Presiding Bishop begin to exercise metropolitical powers next July, however, and I predict a fracture of the Episcopal Church (USA) -- in much the same way that the fracture in the Communion is occurring. The fracture is being caused by unilateral assertions of authority for which there is no consensus that the assertions are justified. ECUSA is thus far on its own in conferring episcopal orders upon individuals living openly in relationships which are outside of the Church's traditional sacrament of marriage, and both ECUSA and the ACoC are alone in their move to provide liturgical blessings for such relationships.

In just the same manner, the Presiding Bishop will be acting on her own in assuming the mantle of a metropolitan, with absolute authority over her fellow bishops. The Canons purporting to confer such powers are a nullity, because they contravene the powers given to the Presiding Bishop by the Constitution. They thus cannot be the source of any such claimed powers; the Presiding Bishop, if she so acts, will simply have assumed them by force of her will.

But the end result of her style of governance will be for ECUSA what the result of Canterbury's style of governance will be for the Anglican Communion -- and perhaps even for the Church of England as well, where somewhat different fractures are at work. Too little direction is the equivalent of too forceful direction: a Church cannot be led or directed in either fashion.

The Pope is absolute in the powers conferred upon him on paper, by the Canons of Catholic Church, but he is constrained in reality by the magisterium -- by all that has preceded him, and by the need to remain true to the course that has thus been set. The Orthodox Church is used to two millennia of metropolitical rule, but with no primus at its head. But the Episcopal Church has absolutely no tradition of metropolitan authority, and nor does the Anglican Communion.

Instead, what has held those two bodies together over the past years is a commonly derived sense of mission and purpose. They operate through careful deliberation and laboriously attained consensus; when some of their members declare an end to deliberations and assume to act unilaterally against the previous consensus, the shock waves ripple through an organization unable to withstand them, and the fractures begin.

The only proper response to such unilaterally generated shock waves is to hold to the consensus theretofore achieved. The leadership demanded is one of being steady at the helm, not of abandoning the tiller altogether, nor yet of commanding dissenters to walk the plank. That leadership, unfortunately, is as absent from the halls of ECUSA as it is from the See of Canterbury.

Indeed, the two styles of leadership on show tend to bring out the worst in each other. Canterbury's refusal to apply meaningful sanctions to ECUSA's conduct is taken by Bishop Jefferts Schori as a vindication of that conduct, and only strengthens her resolve to brook no dissent at home. She insists on her prerogatives of continuing to take part in the Communion as a whole, even as she denies to all other Churches in the Communion those same prerogatives in her own Church. She belittles the lawful statutes of the Church of England which forbid her from wearing her miter while presiding as its guest at a Holy Eucharist, but she insists that the statutes of ECUSA require that she depose Bishop Henry Scriven of Oxford before he may return to England, and pronounce sentence that he be "deprived of the right to exercise the gifts and spiritual authority conferred in ordination." Faced with such obstinate contumely, Dr. Williams cannot even issue any statement defending his own prelate in response. Thus the one style of governance exacerbates the other, and the whole Communion is poorer as a consequence.

It is difficult to foretell just how the Communion and the Episcopal Church will fracture, and when, but that they will each fracture under their current respective leaders is a certainty, because neither of those leaders is acting so as to maintain the consensus previously achieved. The picture is looking more and more like that painted by William Butler Yeats, in his 1919 poem, The Second Coming:
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.