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All that can be observed is that, not counting foreign dioceses or those which have withdrawn, there are some fifteen current dioceses in the Church which have Constitutions which accede to neither the national Constitution nor the Canons, and another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.]


  1. Why is it that some will always assume something not present in the current canons ? Ignorance of the historical reality is too common place among our leaders.

  2. When Lamb was bishop of Northern California, he approved of open communion. That diocese did accede to both the constitution and canon of TEC.

  3. Why do the left continuously and always get their facts and reasoning wrong? What can and MUST be done to get it right?

    And after the individual is absolutely proven wrong, why do the left sheep forward as towards a lemming cliff?

  4. I agree, sir, you are wasting your breath. They will attempt to spin it their way. One thinks that logic courses should be mandatory in college.

  5. Much of the struggle of the last few years comes down to who interprets what and how and whose interpretation is accepted and enforced. This includes not only the constitution and canons of the TEC but the character of Anglicanism, meaning of Scripture, and so on. A lot of the redefining and reinterpreting, of course, is self-serving. This is not something particular to this century or even to the last century. It has origins in the nineteen century and earlier. For example, the intense debate between Bishop John Jewel and the Roman Catholic detractors of the reformed Church of England was over who would define the state of the English Church. A restoration of true apostolic teaching(Jewel) or every man doing what was right in his own sight (the Church of England's Roman Catholic detractors).

  6. Cannon Hairis is a bit snippy, even to the point of occasionally switching up the spelling of your name. Just odd for someone who is always so confident in his opinions.

  7. Another illuminating analysis; thanks.

    I would quibble, though, with your characterization of the example as "extreme." As the most superficial examination of the evidence shows, clearly the Canons allow at least one end of the horse to be consecrated as bishop...

  8. I am afraid they just don't get it and likely never will. Shake the dust from your shoes.

    "The soul of freedom is deathless; it cannot, and will not, perish." (Churchill)

  9. There's no need for a supremacy clause in the constitution itself, it's in the BCP. At ordination the bishop-elect must contract under God; before the bishops assembled and the congregation witnessing to:

    "In the Name of the Father, and of the Son, and of the Holy Spirit, I, N.N., chosen Bishop of the Church in N., solemnly declare that I do believe the Holy Scriptures (...) and I do solemnly engage to conform to the doctrine, discipline, and worship of the Episcopal Church." (1979 BCP)

    "IN the Name of God, Amen. I, N., chosen Bishop of the Protestant Episcopal Church in N., do promise conformity and obedience to the Doctrine, Discipline, and Worship of the Protestant Episcopal Church in the United States of America. So help me God, through Jesus Christ. " (1928 BCP)

    The BCP itself is a legal document per the constitution. Read the Preamble.

  10. Valley Stick, you are confusing bishops with Dioceses. It is the latter which are the constituent members of the Church, and although a Bishop governs them, their decisions are all made at annual Conventions. A bishop does not "vote" to leave the Church; a Diocese does, and the Bishop officially does not take part in the vote. Once a Diocese votes to amend its Constitution to take itself out of the Church, it is up to the Bishop to decide whether to follow the Diocese. If he/she does, then he/she is no longer subject to the discipline of the Church, and no longer bound by his ordination vow.

    So you are mixing apples and oranges. Dioceses are not bishops, and dioceses take no vow to remain subject to the "doctrine, discipline and worship" of the Church.

  11. Thanks for the insight A.S. Haley. So you're saying that if a bishop breaks his vow to the church that ordained him and whom he represents that he hasn't abrogated his duty to govern his flock on behalf of the church? How can the laity and the clergy of diocese itself make the man a bishop? I thought only the church could through the apostolic succession of the laying on hands.

  12. Good work by the Curmudgeon. I would add this regarding Valley Stick's comment: The argument that the Declaration of Conformity somehow amounts to a recognition of TEC supremacy is dealt with by Mark Mcall in response to an earlier posting by Canon Harris. See

  13. I am not convinced that a diocese within TEC can pick and choose which canons it wants to follow. It does seem, though, that a diocese can leave TEC, and henceforth disregard canons in toto.

    I think that the canons apply to dioceses as long as they haven't withdrawn from General Convention. There is no language in any of the national church constitution sections, or in canons, that says a diocese can't leave. Also, that if it does, no where does it say that the property becomes the property of TEC.

    It could very well be that the reason General Convention rejected the Supreme Authority language in 1895 was that the denomination already understood itself to be hierarchical, in that if a diocese joined General Convention, it was agreeing to follow General Convention as long as it remained affiliated with TEC. Simply that.

  14. Thanks for the link Mike Watson! Reading that now. I have to say this controversy is wicked complicated. I wish we could all get along but I guess we can't. *Sigh*

  15. hoofin, the point is that the Dioceses already pick and choose which canons they follow -- as in the case I cited of Canon I.17.7 (only baptized persons shall receive Holy Communion). And while the now departed dioceses were still in the Church, they refused to accept the change making WO mandatory.

    The understanding I documented in 1895 was definitely not that the Church was already hierarchical. Those on the Standing Commission who proposed to make it so nearly all had LL.D.'s in addition to their D.D.'s. But they woefully misread the sentiments of the Dioceses, who wanted none of it.

    You might find it worthwhile to take another look at Mark McCall's paper at the ACI. He goes into a wealth of detail about the type of structure created by the Church founders, and contrasts their solution with those adopted by other churches. In a nutshell, they purposefully set up a structure where there was a rule of applicability, rather than a rule of supremacy (hierarchy). The most recent legislation on any subject would control, whether it was at the national or diocesan level. Thus, if a diocese disagreed with a national canon, it simply enacted a different version, which it then followed until General Convention addressed the matter again.

  16. Mr. Haley, this makes perfect sense now. What the defeat of the supremacy language signifies is that the "highest judicatory to which the matter has been carried" decided that the dioceses could, in fact, opt out of one canon, and therefore all of them.

    So to support what Mark McCall is saying, with a bow to "hierarchical polity", is that even if the Episcopal Church were strictly hierarchical, like the Roman Catholics, it's already been decided that the dioceses--as entities--reserved the right to enact a rule different from the one enacted by General Convention.


  17. Mr. Haley:

    That, by the way, is similar to the quagmire I got stuck in with my Frederick W. Gundlach v. Peter Laister action in 1992. National canons were very clear that it is the member of the denomination, him- or herself, who decides where his membership papers reside. But Rector Laister was playing games, favoring one segment of the vestry who was looking to control the parish for their own purposes.

    The Philadelphia Orphans' Court, which is where nonprofit corporate matters are decided in Pennsylvania, ruled that a bishop is the one to "adjudicate" in the Episcopal Church which parish a member can join, so refused to let the case in until I received such "permission" to join from the Bishop. (This is how it works in the Roman Catholic Church, so the Roman Catholic judges so no issue with it.)

    I kept getting demurrers, and then finally the last time I was hit with costs.

    It was like the judge created a religious practice alien to Episcopalianism, and then shoved it down my throat.

  18. Valley Stick, et al,

    The link provided by Mike Watson won't work as displayed (note that it is not displayed as an active hyperlink and part of the hyperlink is neither visible nor copyable).

    You will find the referenced ACI paper at this link. Alternatively, you can go to the ACI website, click on the September 2010 link in the archive listing on the left hand navigation bar, and you will find the paper, titled "Ordination Vows: Do Bishops Pledge to Conform to Unconstitutional Canons?" there.

    Pax et bonum,
    Keith Töpfer

  19. Curmudgeon, I think that your consecrated horse example is exactly the sort of way that TEC thinks the canons work. They do indeed expect every diocese to recognize every bishop - regardless of gender, for example...or God forbid your example should prove true, regardless of species.

  20. I'm not a Piscopalian, nor the son of one. But I do appreciate Valley Stick's understanding that a pastor is made to be one by the hands of the church (small c, I'm saying).

    Is there a legal issue behind this take? On the biblical level, I don't think it flies. Jesus makes dudes pastors. And when He does, the authority of those pastors is pretty fluffy when they stray from the Truth. Think about Paul (made an apostle NOT by the church), telling us that Peter and ilk don't get no respect when they demand circumcision.

    Stick's schtick is Roman is flavor, of course. But is there law supporting it?

  21. Valley Stick. The oath of conformity is in past perfect tense - has received. The oath is not to whatever the Church may at some point determine to be doctrine, but to what the Church has received.

    So if TEC, through its General Convention, determines that teaching the Trinity is no longer permissible, true Bishops (and priests and deacons) will still teach the doctrine of the Trinity because that is and has been part of what TEC has received.

    One could make the case (but it would never fly in today's ecclesiastical courts) that those who are blessing same sex unions and are ordaining men or women involved in sexual relationships outside of marriage are the ones who are breaking their ordination vows for such things are counter to what has been received.

    Phil Snyder