New Level of Repression Signaled by Charges against +Lawrence

The certification of abandonment by ECUSA's new Disciplinary Board for Bishops, communicated to Bishop Mark Lawrence by Presiding Bishop Katharine Jefferts Schori on October 15, 2012, raises some very troubling questions. It also evidences a new degree of repression operative in ECUSA that seems designed to curb the free speech and other First Amendment rights of its clergy.

The first thing to note is the change in tone between this Disciplinary Board and the one that considered the same charges against Bishop Lawrence last year. In the certification just linked, after reviewing the actions of South Carolina's Diocesan Convention in 2010 and 2011, when it adopted a Constitutional amendment and other canonical changes to withdraw its accession to the Church's canons, and to qualify its accession to the ECUSA Constitution, the Board writes:

8. Bishop Lawrence further failed to “guard the faith, unity, and discipline of the Church” by presiding over the 220th Convention of the Diocese of South Carolina on February 19, 2011, at which Resolution R-6 was finally adopted on the second reading, without ruling it out of order or otherwise dissenting from its adoption.

9. The failure of Bishop Lawrence to rule these resolutions out of order or otherwise to dissent from their adoption, and in fact his endorsement of these resolutions in his address to the 219th Convention of the Diocese of South Carolina, violated his ordination vows to “conform to the doctrine, discipline, and worship of The Episcopal Church” and to “guard the faith, unity, and discipline of the Church,” as well as his duty to “well and faithfully perform the duties of [his] office in accordance with the Constitution and Canons of this Church,” constituting abandonment of The Episcopal Church by an open renunciation of the Discipline of the Church.

But in 2011, the previous Disciplinary Board could not find those same actions by Bishop Lawrence to rise to the level of "abandonment." As stated by the Board's President, the Rt. Rev. Dorsey L. Henderson, at the time of announcing that the Board had decided not to bring charges against Bishop Lawrence:

The abandonment canon (Title IV, Canon16) is quite specific, designating only three courses of action by which a Bishop is to be found to have abandoned the church: first, “by an open renunciation of the Doctrine, Discipline or Worship of the Church”; second, “by formal admission into any religious body not in communion with” the Church; and, third, “by exercising Episcopal acts in and for a religious body other than the Church or another church in communion with the Church ....” Applied strictly to the information under study, none of these three provisions was deemed applicable by a majority of the Board.

A basic question the Board faced was whether actions by conventions of the Diocese of South Carolina, though they seem—I repeat, seem—to be pointing toward abandonment of the Church and its discipline by the diocese, and even though supported by the Bishop, constitute abandonment by the Bishop. A majority of the members of the Board was unable to conclude that they do.

So the first time the matter of Bishop Lawrence's role in the diocesan conventions came up, a majority, at least, of the Disciplinary Board was careful to distinguish between the actions of the Diocese, and the actions of its Bishop. But this time, a new majority of the Board did not make that distinction, or consider it noteworthy. What changed between 2011 and 2012?

The Board's membership changed. Here is a link where you may still see the infamous Roster of the Board from last year, when it "mistakenly" showed Josephine Hicks -- the gay activist attorney assigned to investigate charges for the Board -- as a sitting member.

And here is a link to the list of current members, as shown on the Board's webpage, from which you can determine the following changes in Membership which occurred as a result of last summer's General Convention:

Went off Board at GC 2012:

Feliberty-Ruberte, Mr. Victor (IX - Puerto Rico)

Hayes, Mr. Christopher (VIII - California)

Menaul, the Rev. Marjorie (III - Central Pennsylvania)

Came onto Board after GC 2012

Alarid, Mr. Joseph (VII - Rio Grande)

Fleener, Jr., Mr. William (V - Western Michigan)

Tuttle, The Rev. Peggy (VI - Minnesota)

All other members of the Board remained the same (some were reelected, such as Bishops Douglas, Harrison, Hollerith, Mayer, and Singh, and the Rev. Canon Shepherd). Is it possible to account for the change in view by the replacement of just three of the Board's members? (The full Board is supposed to have 18 members -- ten bishops, four clergy and four lay persons. The current roster, however, lists just nine bishops, and Bishop Fitzpatrick of Hawaii, who was serving in 2011 as the Board's clerk with a term that would end at GC 2015, is for some reason not shown on the current roster.)

Consider: for a majority, at least ten of the Board would have to vote in favor of finding abandonment. Last year, they did not have ten votes; now they do. Thus if the three who left the Board this year had not been convinced of the charges, and eight others still on the Board were not convinced as well, that would leave a minority last year of nine (it could also have been a minority of seven or eight). And if that was the case in 2011, then the addition of the three new members, one or all of whom now voted for the charges, would have converted the former minority into a majority.

The Disciplinary Board does not appear to be bothered by this shift (there was no explanation offered), but orthodox Episcopalians should be. Under the new disciplinary canons of Title IV, which went into effect on July 1, 2011 (just before the previous charges against Bishop Lawrence were considered) the clergy have no constitutional rights which they may assert in proceedings against them. "Double jeopardy," in other words, is not recognized by the Board or by the Church -- which leads to the tactic of bringing up the same charges over and over again until there is a majority in favor of them.

But now look at the nature of the actions which underlie the first of the charges. Bishop Lawrence is accused of (a) not ruling out of order a motion to amend the diocesan constitution, (b) not dissenting from their adoption by the convention, and (c) advocating their passage in his pastoral address to the convention. As to the second charge, Bishop Lawrence is the Chair of the convention, and as such he has no vote unless he first steps down from that position. Charging him with "failure to dissent" is thus a non-starter. And as for "not ruling the motion out of order," any deputy to the Convention could have asked for such a ruling. Does that mean that every clergy attending the 2010 and 2011 conventions is liable to charges of "abandonment" because they did not make such an objection, or dissent from the resolutions' passage? (The minutes on the diocesan website -- Exhibits C and D to the certification of abandonment -- do not record any objections as having been made to the various resolutions; they record only their passage "by majority vote.") One has to wonder, but that appears to be the position of the complainers, and of a majority of the Board.

The third component of the first charge -- delivering a pastoral address which advocated passage of the resolutions in question -- shows how the Board has erased the distinction between the individual acts of a Bishop and the corporate acts of a Diocese. The real complaint is with what the Diocese did, and not with someone who spoke in favor of the resolutions. Again, if that is to be the new standard for charges constituting "abandonment," it will have a very chilling effect on what members of the clergy feel free to say at diocesan conventions.

The second and third charges in the certification fare no better under closer scrutiny. Bishop Lawrence is charged with a statement made in an amendment to the diocesan corporate articles filed with the secretary of state after the Convention had approved the amendments to the diocesan constitution. The change merely brought the corporate articles into synch with the constitution, and was purely a ministerial and clerical act. To elevate it into grounds for charging "abandonment" is ridiculous. Had Bishop Lawrence failed to sign an amendment to the articles after the deputies acted to change their constitution, his own convention could have charged him with abandonment.

And the third charge, of course, has to do with the signing and recording of the famous quitclaim deeds, following the 2009 ruling of the South Carolina Supreme Court in the Pawley's Island case. The Court ruled in that case that ECUSA's Dennis Canon did not comply with state law requirements for creating a valid trust. Bishop Lawrence's deeds served both to recognize the binding character of that ruling on the two Episcopal dioceses in the State, as well as to calm individual parish fears about possibly losing their church property. It was a consummate pastoral act, and represented an honest assessment of the Church's obligation to comply with South Carolina state law.

Making this particular act into a charge of "abandonment" shows the fine hand of Episcopal Forum attorney Melinda Lucka, who has consistently argued that the All Saints Waccamaw decision does not mean what it says. It now comes out that she is the attorney who advised the complainers on submitting charges to the Disciplinary Board. (She is also the attorney who thinks that the Executive Council -- whose existence and authority is not recognized in ECUSA's Constitution -- could somehow rule illegal the constitutional acts of a member diocese, and that such a nonsensical "ruling" would somehow be "binding" on that diocese.)

In short, the third charge is based on a flawed legal contention. There is no showing thus far that the Disciplinary Board obtained a formal legal opinion from a qualified and disinterested South Carolina law firm before deciding to act on Ms. Lucka's "charge". And if, as I suspect, they did not do so, then it shows just how partisan they now are.

Bishop Lawrence has 60 days in which to answer the charges, but he will not do so, as he could not enter into their rigged game without waiving his position that the new Title IV has no force or effect in South Carolina. Moreover, his diocese is no longer even a member of ECUSA, and so the Church's organs and agents have no jurisdiction whatsoever over him. They will still have to go through the motions of "deposing" him, but that is the Church's fault -- it refuses to allow its bishops or other clergy to leave peacefully, and can get them off its books only by charging "abandonment" or "renunciation."

Indeed, any communication Mark Lawrence makes in public about the charges or his diocese now runs the risk that the Presiding Bishop will treat it as she did in the case of Bishop Iker, and declare that it constitutes a "voluntary renunciation of orders" so that she can shorten the process of his removal, and not have to bother with a meeting of the House of Bishops. And in fact, now that I think about it, mark my words -- watch for that very thing to happen.

Fortunately, therefore, the Diocese of South Carolina is now rid of these partisans, and good riddance it is. The rest of us Episcopalians, however -- particularly orthodox clergy -- cannot feel comfortable with the direction that matters are taking with the bringing of these charges. For as noted above, any clergyperson who does not speak up at a convention, or who does not dissent from a vote, or who simply acts in accordance with state law, is now subject to charges under the new Title IV. Welcome, O Brave New World!