On the Impossibility of Enacting a Trial Rite for Same-Sex Blessings without Violating the Constitution (I)

[Note: This post is Part I of a series on amending the BCP and adopting trial or experimental liturgies for use in the Church, as we head into General Convention LXXVII later this week. Part II will follow tomorrow, and the remaining parts each day thereafter, until the series is complete.]

In the lead-up to General Convention at Indianapolis this week, much has been written in Episcopal blogland about the expected passage there of Resolution A049, from the Standing Commission on Liturgy and Music:

Resolved, the House of _______ concurring, That the 77th General Convention commend "Liturgical Resources I: I Will Bless You and You Will Be a Blessing" for study and use in congregations and dioceses of The Episcopal Church; and be it further 

Resolved, That the 77th General Convention authorize for trial use "The Witnessing and Blessing of a Lifelong Covenant" from "Liturgical Resources I: I Will Bless You and You Will Be a Blessing" beginning the First Sunday of Advent 2012, under the direction of a bishop exercising ecclesiastical authority...

I have bolded the language in the Resolution that applies to this article. Article X of ECUSA's Constitution, in addition to specifying that "The Book of Common Prayer ... shall be in use in all the Dioceses of this Church", provides three different tracks for General Convention to adopt amendments, trial alternatives, and occasional rites for use in the Church.

Changes or additions to the BCP may be approved under Art. X only as follows:

No alteration thereof or addition thereto shall be made unless the same shall be first proposed in one regular 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 regular meeting by a majority of all Bishops, excluding retired Bishops not present, of the whole number of Bishops entitled to vote in the House of Bishops, and by a vote by orders in the House of Deputies in accordance with Article I, Sec. 5, except that concurrence by the orders shall require the affirmative vote in each order by a majority of the Dioceses entitled to representation in the House of Deputies.

It takes two successive General Conventions, therefore, to enact changes or additions to the BCP. The first time a proposal is made, it is enacted by a simple resolution passed by majority vote in each House, without any special requirements, such as a vote by orders. Then the amendments are certified to the several dioceses for consideration at their next meeting. Finally, the bishops and deputies from each Diocese must approve the amendments at the next successive General Convention.

In the House of Bishops, the Constitution specifies that the second approval must be by a "majority of all Bishops ... of the whole number of Bishops entitled to vote in the House of Bishops," excluding, however, "retired Bishops not present" (emphasis added). Given that most of the Church's 150 or so retired Bishops do not attend General Convention, this language specifically allows the House of Bishops to approve changes and additions to the BCP on the second pass by the same kind of vote taken in the first General Convention: a majority of all the Bishops present at the session.

Article I, Section 2 of the Constitution gives the requirements for a quorum and the criteria for voting in the House of Bishops (emphasis added):

Each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assistant Bishop, and every Bishop who by reason of advanced age or bodily infirmity, or who, under an election to an office created by the General Convention, or for reasons of mission strategy determined by action of the General Convention or the House of Bishops, has resigned a jurisdiction, shall have a seat and a vote in the House of Bishops. A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.

Under this provision, therefore, if there are, say, 140 active Bishops in the Church, then it would take 71 of them to make a quorum for the House of Bishops to do business at General Convention. Let's say that 100 of them were present, so that the quorum requirement is satisfied, and let's say that another 20 retired Bishops are also present. Then for any measure to pass the House of Bishops at that session, it would require the affirmative vote of a majority of all the Bishops then present, or 61, to approve it.

So to determine a quorum of the HoB, you do not count any retired Bishops, but for a majority with respect to regular measures (assuming a quorum is present), you do count the retired bishops who are present, in addition to the active bishops present -- because by the first sentence of Article II, every retired Bishop has "a seat and a vote" in the House of Bishops. (Bishops who resign their jurisdictions for any other than the specific reasons given in Section 2, however, do not have a right to vote, although they may be seated and participate in debates.) In order to exercise their vote, of course, the retired Bishops who are qualified to vote under the language of Section 2 above have to attend the HoB's sessions -- there is no provision for absentee voting in the HoB.

Thus, under this analysis, we see that the requirements for an amendment to the BCP to pass second reading, the Constitution are, at least in the House of Bishops, the same as they are for passing first reading, despite the extra language. It takes, on each occasion, a simple majority of those Bishops present who are entitled to vote. So why the special language?

To understand why, we need to look at the next paragraph of Article X, following the one quoted above. It deals with adopting trial liturgies for use in the entire Church (emphasis added):

But notwithstanding anything herein above contained, the General Convention may at any one meeting, by a majority of the whole number of the 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 as previously set forth in this Article:

(a) Amend the Table of Lessons and all Tables and Rubrics relating to the Psalms.
(b) Authorize for trial use throughout this Church, as an alternative at any time or times to the established Book of Common Prayer or to any section or Office thereof, a proposed revision of the whole Book or of any portion thereof, duly undertaken by the General Convention.

Notice, please, the differences here -- the draftsmen of the Constitution have been very careful to use precise language, which allows a direct comparison of the two methods for changing or adding to the BCP. We may, for purposes of ready comprehension, list those differences as follows:

1. Changes or additions to the BCP itself require the vote of two successive General Conventions, which satisfy the following requirements.

a. Both times in the House of Bishops, the votes are by a simple majority of those present and voting.

b. In the House of Deputies, the first vote is by a simple majority of all the Deputies, both lay and clergy, who are present and voting.

c. The second vote, however, requires passage by both the lay order and the clergy order separately, i.e., by a majority of all the lay Deputies present and voting, and by a majority of all the clergy Deputies present and voting.

d.  In addition, the second vote in the House of Deputies must pass by a majority of all the Dioceses represented in each order.

[Example -- skip if you don't need the explanation: If there are 400 in each order present and voting in each order, and if those 400 represent 100 of the Church's dioceses -- four lay and four clergy Deputies from each Diocese -- then for an amendment to the BCP to pass in the second Convention, there would have to be at least 201 lay votes, and 201 clergy votes in favor -- plus the deputations from at least 51 Dioceses would have to approve the measure, in each order. Since it takes at least three members of a Deputation to vote affirmatively on behalf of their Diocese, then it would require a minimum of 3 x 51 = 153 Deputies in each order, and potentially 4 x 51 = 204 could so vote to approve, if the deputations were each unanimous.

[Thus, it can get complicated fast for the second vote in the House of Deputies.  If, for example, the 201 votes in favor came from 50 deputations, each voting unanimously, plus one more Deputy in the minority of another Diocese, then the measure would pass in that order, but not by a majority of all Dioceses represented -- since 50 unanimous Dioceses could not make a majority. Needless to say, there are a considerable number of possibilities in between these two illustrations.]

2. The adoption of liturgy for trial use throughout the Church requires only the vote of a single General Convention, which, however, satisfies these requirements.

a. In the House of Bishops, the measure must pass by "a majority of the whole number ... of Bishops entitled to vote," counting all retired Bishops, present or not.

b. This is what the difference in language between the two paragraphs or Article X entails: for amendments to the BCP itself, it takes the majority vote of just the Bishops present and voting, i.e., specifically "excluding any retired Bishops not present."

c. But for trial liturgies, because there is just one vote required in the HoB, the Constitution carefully specifies that adoption requires a larger majority than for BCP amendments -- a "majority of the whole number of Bishops entitled to vote" -- not excluding (this time) "retired Bishops not present."

d. Therefore, with 300 Bishops, say, in the House of Bishops (both active and resigned), it would take the affirmative vote of at least 151 Bishops to approve any trial liturgy. 

e. In the House of Deputies, meanwhile, it requires the same majorities in each order, and for all of the Dioceses represented, as it does for second passage of an amendment to the BCP.

The scheme of the draftsmen of Article X is thus quite consistent, and clear. Trial rites for Church-wide use may be adopted on just one vote of General Convention, but with specially required, larger majorities than those required on the first passage of any BCP amendment. This requirement for an increased majority balances the requirement for BCP amendments to pass two successive General Conventions, rather than just one.

There is still one more method provided in the Constitution for adopting experimental and occasional rites for use in the Church. I will take a closer look at that third method in the next installment of this series, to be published tomorrow. Then, beginning in Part III, we will be in a position to evaluate the various proposals from the Standing Commission on Liturgy and Music, and especially, the proposed trial rite for same-sex blessings, in light of the Constitution's requirements.