Of Bishops and Boundaries

The mistaken belief that "the ancient councils of the Church forbade Bishops from invading each other's territories" has been laid well to rest (and see also this post). The appeals to ancient norms, however, are persistent. Sometimes, the appeal is simply to current "protocol", or to "the spirit and the letter of the Windsor Report" (which also erroneously cited to the Council of Nicaea, as explained in the first link). It is granted that TEC's own Constitution (Art. II, Sec. 3) limits a Bishop to exercising authority only in his or her own diocese, and that it has so provided since it was first adopted in 1789. What is to be said about the numerous instances in which former Episcopal congregations and clergy (and now even a diocese, with others perhaps to follow) have placed themselves under the jurisdiction of bishops in other Anglican provinces?

The first thing to note is that the phenomenon is largely, if not exclusively, confined to the provinces of The Episcopal Church and of the Anglican Church of Canada. That in itself says a great deal. Can it be just a coincidence that the boundary crossings are occurring in just the two churches in the Anglican Communion which have officially refused to abide by the resolutions made by all the bishops of the Communion meeting at Lambeth? Let's take a closer look.

It is inadequate to explain that TEC and the ACoC have rejected the recommendations made in Resolution 1.10 passed at the 1998 Lambeth Conference. Implicit in their rejections, and in their refusals to retract those rejections, is a statement about their respective polities. I do not think I could improve on this analysis by "AKMA", who (looking at the Statement issued by TEC's House of Bishops in March 2007) I think has it exactly right:

What might be wrong with our polity? It looks to me as though the Episcopal Church (on both “sides”) tends to regard bishops as though they were state governors — “our elected officials.” That neglects the two aspects of a bishop’s vocation that look most important to me: the bishop’s role as a teacher, and the bishop’s role as the point where the local church (the diocese) interacts with the church catholic. On that basis, churches in Iran really do have a stake in whom the Diocese of Chicago elects as bishop; a bishop who can’t function as a liaison (either because the world refuses them, or their home diocese does) can’t fulfill a constitutive aspect of the bishop’s role. The Episcopal Church tacitly recognizes this through its assent process, and (ironically) just exercised the prerogative to not accept a bishop’s election on the grounds that not enough dioceses felt they could rely on that candidate to remain within the Episcopal Church. [Footnote omitted.] Though we do not ask every diocese around the globe to consent to each episcopal election, the principle is the same: A bishop belongs both to the diocese and to the church catholic, and both need to accept the bishop in order to maintain sound polity.

So when the House of Bishops asserts that “the meaning of the Preamble to the Constitution of The Episcopal Church is determined solely by the General Convention of The Episcopal Church,” or that we have no intention of leaving the Anglican Communion but that our polity does not permit arrangements such as the Primates requested, they’re begging the question. It’s the polity itself that has come into focus as the problem. The Primates want a polity in which our bishops stand more fully accountable to the world church, because (on this interpretation) that’s part of their job description; and the Episcopal Church says, “You can’t exclude us because that’s not the way we do things.” The US position looks an awful lot like an assimilation of ecclesiastical roles to local civic models: the U.S. bishops should lobby on behalf of the citizens they represent to bring home favorable policies (and if the governors of Utah and Mississippi, even the President of the U.S., don’t like the governor of Iowa, it’s tough luck because the Iowans voted for her). That’s not my understanding of how the members of the Body of Christ work together to build up and strengthen the whole.

Indeed, The Episcopal Church's leadership is, if I may be allowed to say it, preoccupied with concerns of civil rights and social justice that have a full and necessary place in our body politic, but which, ironically, detract from the function of a body religious. Bishops are more than elected governors, and are accountable to more things than just civil rights and social justice. Remember: "God owes us nothing" (to use the title of one of Leszek Kolakowski's books). One cannot speak of mortal sinners demanding civil rights or social justice from God. One's eligibility to be called to God's service does not hinge on whether one has been oppressed, or denied elementary civil rights by a society, so that it is now "one's turn" to assume the leadership role, just so that the Church may be said to be doing "new things."

The fallacy in bringing a civil rights point of view to matters of Church polity is not just that sinners have no "civil rights", but also that one cannot champion civil rights in a representative capacity. A Bishop represents his diocese to the church catholic, as the above quote observes. If that Bishop feels strongly about women's rights, or gay and lesbian rights, or both, or still other rights, he or she may march in all the demonstrations and parades, and even get arrested if civil disobedience is felt to be the only way to gain attention for the cause. But when a Bishop marches, or is arrested, he is placing his individual liberty on the line. (I shall switch to using a generic "he" at this point, because it is simply too cumbersome to keep repeating "he or she," "his or her," etc. Let the gender-neutral intent be understood.) As a Bishop of his Church, however, his authority does not extend to placing his Diocese on the line, because he only represents the Diocese; he is not the Diocese itself.

Indeed, civil disobedience makes sense only from an individual standpoint, as I noted in an earlier post. There is no admirable sacrifice of liberty, no example for others to follow, if you use your representative authority to get someone else to go to jail for you. And this has been the problem with how TEC (and the ACoC) have gone about advancing the cause of gay and lesbian "rights" within the Anglican Communion. (I place the word in quotes, remember, because it does not make sense to speak of demanding from God a "right" to be ordained, or to receive God's blessing on one's relationship.) They claim to have done so in order to "be a witness" to the "new things" which the Holy Spirit is doing in the Church---that is the language of (religious) civil rights demonstrators. In fact, the compulsion for former Presiding Bishop Griswold to be a witness was so great that he could leave the Primates' Meeting at Lambeth Palace in October 2003, having signed a statement that urged TEC not to go forward with the consecration of Bishop Robinson, and then officiate at the ceremony just seventeen days later; he left it to his deputies to justify his conduct to the Communion. And the compulsion of the current Presiding Bishop to brook no opposition to the social justice agenda was foreshadowed even before she was elected.

In order to send a signal that they were witnessing to the cause of gay and lesbian civil rights, the Bishops of TEC and ACoC did not just pronounce that Lambeth Resolution 1.10 was not going to be followed in their churches; TEC actually consecrated a Bishop who, it was warned in advance, would not be able to represent his diocese to the wider church, and who could not be invited to the gathering at Lambeth without making a mockery of the actions taken there. And asked to clarify its stance, the Anglican Church of Canada responded with an ambiguous authorization to hold rites for the blessing of same-sex unions. Each of these actions, be it noted, constituted official acts of the respective churches, performed and approved by their delegates in their representative capacities. No one's individual liberty was placed at risk by such Anglican disobedience; instead, what it called into question was the churches' willingness to remain as full partners in the Communion.

It is very difficult to remain impartial about the different sides of this dispute, because there is so much at stake once the disobedience went to a representative, as opposed to staying on an individual, level. Some devout Episcopalians, whose sincerity cannot be questioned (even though the other side will not credit it), believe (along with Lambeth 1.10) that participating in or approving the ordination of a non-celibate gay or lesbian to the ministry simply cannot be reconciled with Holy Scripture, and quite a number of these Episcopalians also believe that it concerns one's salvation. The other side believes just as sincerely that gays and lesbians have for too long been discriminated against by the powers of the Church, are determined to put an end to the discrimination they see, and think that what they are doing is strengthening, not weakening the Church. The problem is that by taking action in the name of the whole Church, the activists have made it impossible for those who disagree to remain neutral or indifferent. The reasserters (to use the neutral terminology now current) cannot accept what has been done, and what continues to be done, in their name. And for their part, the reappraisers are just as determined to continue with what they have started, and to do so in the name of the Church as a whole.

One of the predictable consequences of such an impasse is that the reasserters will seek to be led by Bishops and clergy whom they see as faithful to Holy Scripture, and will reject the leadership of those who are approving and performing gay and lesbian ordinations and blessings. The results are the withdrawals, the joining of other Anglican provinces, and the border crossings by Bishops. The reappraisers can insist all they want that parishes in a diocese are not free to pick and choose whom they will individually have as their Bishop, that the majority rules, and that once a Bishop has been elected and consecrated the entire diocese has to live with that choice, or accept whatever that Bishop offers as alternative oversight. But for reasons I have set out in this post, those parishes have decided that when they joined The Episcopal Church, they did not delegate to their representatives the authority to take steps that would make them no longer a part of the Communion, or that could affect their salvation. Those decisions belong to the parishioners and their ministers alone, and they are voting with both their wallets and their feet. (Moreover, for an instance of why "Delegated Episcopal Pastoral Oversight" [DEPO] as offered to reasserters is unacceptable, read carefully this link, especially pages 13-19.)

The anguish of having to decide whether to leave the Church is not being assuaged by the unsympathetic stance of the reappraisers toward those who are faced with the choice. From the Presiding Bishop on down, the attitude is: Leave if you must, but don't try to take any property with you, because our side has all the money in the world for lawyers who will plague you like locusts. Moreover, don't even ask if you can buy the property from us, because we won't sell it to you---we'd rather it went to a sleazy nightclub, and end up like this, than to a parish "in competition" with us. So long as you try to remain part of the Anglican Communion without also being a part of TEC, we will depose your clergy and bishops so they can never minister in this Church again; we will not recognize those whom you ordain, we will hound whatever bishop takes you under his wing every time he tries to make a pastoral visit to you, and we will threaten to depose those in this Church who cooperate with foreign bishops. We will never recognize your affiliation, and if we can get the Archbishop of Canterbury to listen to us, he will not either. And don't try to blame us for forcing you to do this: you and your rigid and antiquated readings of Scripture are what is causing this to happen.

The position of TEC towards those who leave it borders on violating their First Amendment freedom to associate, as I noted here. If TEC had its way in the courts, it would be illegal for a parish within its geographical territory to join another province of the Anglican Communion, let alone a newly formed province in America itself (which would require the assent of the Primates and the Anglican Consultative Council). As the link just given explains, the Anglican Consultative Council gives consent to the creation of new provinces, not dioceses. With the latest news from the Province of the Southern Cone about amending its Constitution to allow it to include dioceses in North America, we may eventually see some kind of test in court of TEC's hard and fast position that no foreign dioceses can exist within its geographical territory. At this point, however, the issues are not well-defined for adjudication.

The Church has split before over matters seen as involving salvation, and it has never been accomplished without trials and tribulations on both sides. There is little hope of reconciling the two groups, given the current stances, for the reasons just given: one is acting out of conviction born from faith in Scripture, while the other is acting out of conviction born from faith in human dignity and social justice. What I hope the reappraisers will come to see is that the departures and the "incursions" are the inevitable consequences of presuming to decide questions at a Church level that were not theirs to decide (at least, not until the Communion as a whole was ready to do so). And what I hope the reasserters will come to see is that the early failures to object to the undermining of doctrine, and to the post-modernizing of the Church, served only to postpone the difficult decisions they now must make today.

I shall close with a juxtaposition that is apt of two quotes on this subject. The first is the aforementioned Statement from the House of Bishops:

Other Anglican bishops, indeed including some Primates, have violated our provincial boundaries and caused great suffering and contributed immeasurably to our difficulties in solving our problems and in attempting to communicate for ourselves with our Anglican brothers and sisters. We have been repeatedly assured that boundary violations are inappropriate under the most ancient authorities and should cease. The Lambeth Conferences of 1988 and 1998 did so. The Windsor Report did so. The Dromantine Communiqué did so. None of these assurances has been heeded. The Dar es Salaam Communiqué affirms the principle that boundary violations are impermissible, but then sets conditions for ending those violations, conditions that are simply impossible for us to meet without calling a special meeting of our General Convention.

— A Statement from the House of Bishops of TEC – March 20, 2007

And the second quotation is from John Henry (later Cardinal) Newman (hat-tip: I'd Rather Not Say):

If unity lies in the Apostolical succession, an act of schism is from the nature of the case impossible; for as no one can reverse his parentage, so no Church can undo the fact that its clergy have come by lineal descent from the Apostles. Either there is no such sin as schism, or unity does not lie in the Episcopal form or in the Episcopal ordination. And this is felt by the controversialists of this day; who in consequence are obliged to invent a sin, and to consider, not division of Church from Church, but interference of Church with Church to be the sin of schism, as if local dioceses and bishops with restraint were more than ecclesiastical arrangements and by-laws of the Church, however sacred, while schism is a sin against her essence. Thus they strain out a gnat, and swallow a camel. Division is the schism, if schism there be, not interference. If interference is a sin, division which is the cause of it is greater; but where division is a duty, there can be no sin in interference.

—John Henry Newman, An Essay on the Development of Christian Doctrine, 1845

Can a Diocese Ever Leave the Church?

The question is often put as to whether a diocese can leave The Episcopal Church. It is the wrong question, in my opinion. It focuses on the concept of "diocese" as some kind of abstract, impersonal entity that acts on its own. A diocese is not a monolithic, autonomous object, but is a collection of people. Most of them are organized in law as unincorporated associations---which the law defines as "a group of two or more gathered by mutual consent in association for a common lawful purpose."

Because a diocese is simply a gathering together of people with a common purpose, it can happen that there will be a falling out---a disagreement over that common purpose. When that happens, the association will split up into two (or more) new groups. How does the law treat such splits?

All other things being equal, the law will recognize the larger of the two groups as the continuation of the entity that was the former association, and the smaller as a brand-new unincorporated association. But it may turn out that the larger group does not want to be seen as the continuation of the old association. It may choose, if it wants, to adopt a new name and articles of association, and the law will recognize it by its new name. In such a case, the smaller group could keep the old articles and claim to be the continuation of the old association---again, if it wanted to. If it also adopted a new name and articles, then the old association would simply go into limbo if there were no one to carry it on, and if no one saw to it that it was dissolved.

How does all this relate to The Episcopal Church? From what has been said, it should be apparent that as long as a diocese is an unincorporated association, the odds are high that there will always be some members of the old association who will want to carry on as the Episcopal diocese, while others may want to continue as an association that is a diocese within the Anglican Communion, but just not as an Episcopal diocese. So as has happened in San Joaquin, there will be two unincorporated associations, one of which can become the new "Episcopal Diocese of San Joaquin," and the other of which is now "the Anglican Diocese of San Joaquin." The accurate way to describe this result is not to say that "the Diocese of San Joaquin has left The Episcopal Church," but rather to say that "a number of people have left the Episcopal Diocese of San Joaquin and organized as the Anglican Diocese of San Joaquin, subject to the jurisdiction of the Province of the Southern Cone."

So far, so good. Now we come to the controversial part. Can a diocese constitutionally amend its articles so as to place itself outside the jurisdiction of The Episcopal Church, and under the jurisdiction of a different province of the Anglican Communion? And if it can, what happens to the diocesan property?

There is one school of thought that holds that by unwritten law and custom, as well as by analogy to the Union that is the United States of America, a diocese may not amend its articles so as to break off from The Episcopal Church. At the outset, this argument faces a conceptual disconnect with reality: as we have just seen, in almost any conceivable case (given that we are dealing, ultimately, with sovereign individuals), there will be an association of people that can remain as the unincorporated Episcopal Diocese in question. So what is to quarrel about? How about: property and money. The problem is that, before the split, there was an entity that held title to the diocesan property and bank accounts, and after the split, there are two (or even more) entities. So who ends up with the money and property?

If we ask the law again, it responds: the entity that held title to the property and bank accounts before, and which continues through the split to survive with its original "unincorporated shell" intact, is the one that the law recognizes as still having title to the assets. If the old organization is governed in all of its matters by majority vote, as is typical of most unincorporated associations, then the entity which continues to be governed by the majority of the members will be the one that the law recognizes as holding the assets.

Now I have to introduce another level of complexity here---my apologies, but accurate analysis requires it. Because of these very problems in determining successorship in the case of unincorporated associations, the law allows an unincorporated religious association in turn to authorize its duly designated religious leader to form what is called a "corporation sole". The creation is given this name because it is a unique form of corporation under State law: it has a single shareholder, a single director, and a single officer, who are one and the same person: the religious leader whom the association has authorized to file the papers for a corporation sole. The purpose of the corporation sole is to allow title to the diocesan assets to be held in the name of an entity in corporate form, because corporations have the characteristic of perpetual existence: if their sole shareholder/director/officer dies or is otherwise replaced, the newly designated leader simply steps into the place of the old, and the corporation continues as before. Once again, however, the process by which that leader is designated must be spelled out in the articles of the corporation sole, and the new leader must have the authorization of the religious unincorporated association to file the papers which make him (or her) the incumbent of the corporation sole.

Thus, by virtue of this statutory scheme, it has come about that most dioceses are unincorporated associations, which have authorized their Bishop to form a corporation sole to hold title to all of the diocesan property. Now you can appreciate the level of complexity that has been introduced: what happens to the corporation sole if the underlying religious association, that authorizes its successorship, splits up?

As you might imagine, the majority rule again prevails at secular law. If the larger group maintains the unincorporated entity that was the former diocese, then (all else being equal) that entity continues to govern the authorization of the corporation sole, as it did before the split. Under these circumstances, there is tremendous pressure on the minority group to claim the mantle of the legitimate successor to the prior association. And in the case of a religious association, the way to do so is to claim that the changes made by the majority group were not authorized by the governing principles of the particular religious group. So we have to address the question: is it unconstitutional, or uncanonical, for a formerly Episcopal diocese so to amend its constitution and canons as to place itself outside the jurisdiction of the Episcopal Church?

Those who would argue this question in the affirmative face significant difficulties under both secular and Episcopal law. In the first place, the secular law places great stock by written constitutions and articles, as opposed to unwritten law and custom. The reason is that when the rules are written out in advance for all to agree with before they join the organization, it is much easier to argue that by joining the organization, the members consented to abide by its written rules. It is much more difficult to make the case that by joining an organization where the rules are unwritten, a member had to know what they were anyway, and so gave consent to them by the act of joining. Unwritten laws have a way of being drafted or revised as needed to fit the facts; someone can always be counted on to testify: "That's the way we've always done it, during all my years in this organization."

In contrast, what we have in the case of San Joaquin is an unincorporated association with a written constitution and canons that each specified the procedures that were required in order to amend them. There were no limitations on the nature of the amendments that could be made. Furthermore, all of the procedures were precisely followed in adopting the amendments: the constitutional amendments were passed at two successive annual conventions, as the constitution required, and the amendments to canons were also passed by the required majorities of clergy and laity at an annual convention at which a quorum was present. California law provides: "If an unincorporated association's governing principles do not provide a procedure to amend the association's governing documents, the governing documents may be amended by a vote of the members." (Corp. Code section 18340.) Here those "governing principles" did provide a procedure for their amendment by the members, and the procedure was followed, so California law was satisfied.

If one next turns to the Constitution and Canons of The Episcopal Church, one searches in vain for a written provision that puts any kind of limitation on the kinds of reorganizational amendments a diocese may make to its own constitution and canons. To be sure, there are some provisions that specify details about the election and consecration of a Bishop (Art. II, sec. 2), the number of Bishops Suffragan it may elect (sec. 4), and the resignation of Bishops (secs. 6 and 9); there is a requirement that every diocese elect a Standing Committee (Art. IV), and that every diocese use the Book of Common Prayer (Art. X). But the only provision dealing with the membership of dioceses in the Church itself is this one, from Art. V, sec. 1 (see also Canon I.10.4, to the same effect):

After consent of the General Convention, when a certified copy of the duly adopted Constitution of the new Diocese, including an unqualified accession to the Constitution and Canons of this Church, shall have been filed with the Secretary of the General Convention and approved by the Executive Council of this Church, such new Diocese shall thereupon be in union with the General Convention.

This prescribes the terms on which a diocese shall be admitted, but says nothing about the terms on which it it may leave, unless something to that effect can be inferred from the words "unqualified accession." They mean, as used in this context, the act of "consenting or agreeing without reservation", and thus imply a voluntary choice made to enter into an arrangement. (In the law, there can be no binding contract in the absence of voluntary consent. And if one party breaches the contract, the other does not need the consent of the breacher to withdraw from the contract.) Consent once given, being voluntary, may just as voluntarily be withdrawn if the other side fails to hold up their end of the bargain---mutual honoring of the agreement by each party is the quid pro quo for staying in it. This is also the law of international treaties between independent and sovereign states: when a state signs a treaty, it "accedes" to it, and it has always been understood that the accession lasts only as long as the state wants it to, i.e., a state may chose to withdraw its accession to the treaty at any time, and for any or for no reason whatever, since the state is sovereign, and beholden to no other state. Even if there were specific language forbidding deaccession, it could not be enforced once one side committed a breach of the agreement. So the language issue turns out to be a red herring, although that fact has not quelled the debate.

Father Tobias Haller argues, for example, based on his predilection to find "unwritten TEC law", that it would be "absurd to suggest that a unilateral vote, even by a majority of the members, can permit a diocese of TEC to declare itself independent absent the consent of the General Convention." This argument shows a misunderstanding both of the legal positions and of the kinds of entities involved. General Convention is a creation of the dioceses that join it, and not vice versa: General Convention has no power to create a diocese, but only to consent to its union with one. Dioceses are thus independent entities who owe their existence in the law not to General Convention, but to the people who decide to form them, who in turn agree to be governed by majority decision (or in most cases, by the decision of a vote "by orders", which does not change the underlying point). What the majority of each order in San Joaquin claims the right to do, and what each did, was to vote to amend their own diocesan constitution, which they are fully entitled to do as a matter of California law. This vote was an integral part of the process by which an unincorporated association comes apart when there has been a series of actions by the parent church that gives rise to dissension and disagreement. What would be absurd would be to hold, for example, that no matter what actions General Convention may take---even if it voted, say, to adopt mandatory rites for same-sex marriages throughout the Church---the majority members of the diocese of San Joaquin could not vote to change their affiliation without the consent of General Convention. No constitutional or canonical language of TEC so provides, and the secular law would not enforce it if there were such language. 

(Fr. Haller's analogy to the Union of the States also misses the mark, for several reasons [and for still another reason, see this link]: (1) In the first place, the principle that no State could secede was not established by interpretation of the Constitution, but only after the fighting of the most costly and bitter war in the nation's history. In other words, there was no unwritten law about the impossibility of seceding until after a war had been fought to establish it; the case which Fr. Haller relies on was decided after the Civil War. And during the Civil War, (2) the southern dioceses of the Church uniformly amended their constitutions so as to "deaccede" from General Convention, and voluntarily amended them again afterward so as to accede once more. A third reason the analogy fails is (3) that a diocese, as we have seen, is usually an unincorporated association (the complaint filed in San Joaquin alleges that TEC itself is one), and so is just a grouping of people under the law that will hold together only so long as there are sufficient people to keep it up. A State, on the other hand, is a sovereign entity in its own right, and as we know, thirteen of them existed on their own before there ever was a United States. Dioceses do have to exist in the law, with their own constitution and canons, before the church can recognize them, and before General Convention can come into union with them, but they owe their legal existence to the jurisdiction of the State in which they are located. States do not owe their legal existence to the Union, or to any other State; they have an independent existence which continues apart from their role in the Union or their relationship with other States. Thus Father Haller's analogy between the Church and the Union fails mainly because, as we have seen, even after there has been a split, there remains a group that can come together as an association and continue as the diocese of the Church. As a practical matter, therefore, no Episcopal diocese "withdraws" from the Church. The quarrel is rather, as just noted, over who has title to the assets.)

The second difficulty with the unwritten law position is that it needs a demonstration of consistent prior acts to prove how such situations were governed in the past. And there again, because of what happened during the Civil War, The Episcopal Church cannot point to a precedent for what it contends is the unwritten law today; what precedents exist cut the other way.

But the fatal objection to the current argument that "dioceses cannot leave the Church; only people can" is the statement itself: it recognizes the right of people to choose to leave The Episcopal Church. And if people can leave, they can also choose to group in an unincorporated association that has allegiance to a different province of the Anglican Communion. So what the current Church leadership is really trying to say, in an effort to maintain its right to the diocesan property, is this:

No group of Episcopalians within the given geographic territory of an Episcopal diocese is free to amend the diocesan articles to reorganize into an association that purports to be a diocese of another branch of the Anglican Communion.

Looked at in this light, this is truly a remarkable claim. "Freedom of association" is one of the rights guaranteed to all by the First Amendment, yet The Episcopal Church is trying to say it does not apply inside any of its dioceses. That is, no doubt it would concede that Bishop Schofield and his followers are free to abandon the unincorporated association and its corporation sole to the minority, and to organize a new unincorporated association and a related corporation sole that has no right to keep any of the former association's assets, but (it contends) they cannot lawfully amend the existing constitution and canons to eliminate the accession clause and change the name of the corporation sole.

Such a limitation on the freedom to associate---in the absence of any language to that effect in either the diocesan or the national constitutions---would be unprecedented in the law. (Remember, the so-called "Dennis Canon", which attempts to impose a trust in TEC's favor on all parish property, is silent about the property that belongs to dioceses.) The constitutionally required deference to a "hierarchical church" is not implicated here, because there is no language in the governing instruments to which deference could be required. Instead, under the "neutral principles" approach, state law was unquestionably followed in making the amendments, and they consequently were, and are, fully valid under state law.

Until I see different and better arguments on the side of TEC, this is how I expect the current California legal dispute in San Joaquin to play itself out. So: can a diocese leave the Church? In practice, it never does, but in legal reality, just watch it happen in San Joaquin, and in Ft. Worth, and in Pittsburgh, and in Quincy, and in . . . (to be continued, if TEC stays on its current course). 

But can a majority within that diocese decide to affiliate with a different church, without the consent of TEC? They not only can, but have lawfully done so.

  

Who Will Stand Up for What Is Right?

The matters discussed in this post will seem utterly fantastical to some and overly technical, or even irrelevant and incomprehensible, to others. I place this warning at the outset to save either group from having to struggle through what follows. But if you are one of those who is increasingly concerned by the lack of accountability on the part of the leadership of The Episcopal Church, then by all means read on. If you agree with the conclusions I draw, I would ask that you forward a copy of (or a link to) this post to your diocesan Bishop. And if you are one of the very few in a position actually to do something, it is my prayer that you will take what I say here to heart.

The recent publication of a memorandum analyzing the serious violations of the Constitution and Canons of The Episcopal Church (and of the Diocese of San Joaquin!) by Presiding Bishop Katharine Jefferts Schori, and the report of a simultaneous sabotage of the site where it was originally published, following denouncements of its motives and demands by TEC loyalists for the name(s) of the memorandum's author(s), have significantly raised the procedural ante within The Episcopal Church.

On the one side we have the Presiding Bishop and her Chancellor, along with her Title IV Review Committee, who have charged the Rt. Rev. Robert Duncan of Pittsburgh with having "abandoned the Communion of this Church" in supposed violation of Canon IV.9. (For a full analysis of why such charges against a Bishop like +Duncan, who has no intention of leaving the Anglican Communion, constitute an abuse of this Canon, see my earlier posts here and here.) Despite the fact that the three senior bishops of the Church refused to agree to the inhibition of Bishop Duncan, the Presiding Bishop has continued to say that she intends to bring a resolution before the House of Bishops at its next meeting to vote on his deposition.

On the other side we have the canon lawyers, who (with the exception of the Presiding Bishop's Chancellor David Booth Beers and his firm) have been unanimous in their opinion that Canon IV.9 cannot be read to allow a vote to depose a Bishop who has not first been inhibited. This result follows from the plain language of the Canon itself:

If a Bishop abandons the communion of this Church . . . it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop . . . The Presiding Bishop, with the consent of the three seniorBishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. . . .

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false . . . the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement [is in good faith], . . . the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, [shall] terminate the Inhibition. Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

I have added the bolding in order to show the requirements of the Canon (i) that only a Bishop who has first been inhibited is "liable to Deposition"; (ii) that the inhibition is terminated if the inhibited Bishop makes a satisfactory statement of denial; and (iii) that otherwise, the Presiding Bishop brings the question of deposing the inhibited Bishop to the House for a vote. As the Memorandum referenced above argues, it makes nonsense of the Canon to argue that the sentence beginning "Otherwise . . ." applies to Bishops who have not been inhibited, because then the Canon would lack any provision for voting on a Bishop who has been inhibited.

I say "the canon lawyers have been unanimous" that Canon IV.9 must be so read, because every lawyer's opinion I have seen on the Web reads it that way, while I have yet to read a single legal opinion, signed or otherwise, either on the Web, or published elsewhere, that defends the Presiding Bishop's reading of the Canon (with the exception of her own recent letter to the House of Bishops, which was presumably written by, or with the help of, her Chancellor, but which she alone signed). There have been some differing opinions about the requirement in the Canon that a vote to depose be approved "by a majority of the whole number of the Bishops entitled to vote", but there has not been a single dissenting view expressed , with reasons and logic to back it up, that the Presiding Bishop is justified by the Canon in proceeding as she proposes to do.

The Presiding Bishop appears impervious to an argument based on the plain language of the Canon. As her letter to the House of Bishops indicates, her reading of it is entirely "concept-driven":

These [three senior] bishops who must consent to the temporary inhibition do not, however, have a veto over consideration of the merits of the deposition by the House of Bishops, any more than those who must consent to temporary inhibitions in other circumstances have a veto over consideration of the charges by a trial court.

In other words, the Presiding Bishop sees herself as both chief prosecutor and chief judge, and the refusal of the three senior bishops to go along with her program will not prevent its execution one whit: the language of the Canon to the contrary means not a thing in the face of what the Canon obviously intends conceptually.

This is truly a remarkable impasse. We have the Presiding Bishop of the Episcopal Church announcing for months that she intends to take a manifestly uncanonical act---and while many lay persons in the blogosphere are speaking out against its legality, the vast majority of the clergy in the Church is acting as though nothing is wrong. Indeed, the silence from the House of Bishops (with the exception of Bishop Duncan himself) is deafening. It will be the purpose of this post to show how the Canons themselves could be used (nay, perhaps are being used now, without our knowledge) to bring a halt to this unlawfulness. They can be used at once, if the courage exists to apply them. The mechanisms are in place. Will any of the Bishops use them? Will any of them have the simple Christian courage to stand up for what is right, and do it?

The first thing to note is that the Presiding Bishop must step aside in any case in which she is a Respondent, that is, in which she has to answer to someone else's charges. (Canon IV.3.49.) The same Canon provides that the presiding officer of the House of Bishops takes over her role in any such matter, and if the presiding officer cannot so serve, the Secretary of the House of Bishops shall assume the role. The presiding officer (Vice President) of the House of Bishops is the retired Rt. Rev. Richard S. O. Chang, until 2007 the diocesan of Hawaii, whose term runs until General Convention 2009; the Secretary is the Rt. Rev. Kenneth Price, Bishop Suffragan of Southern Ohio (toggle the link to page 2). In a case involving the Presiding Bishop, Bishop Chang would have to decide if he could act, and if not, the decisions would fall to Bishop Price.

Functioning in the role of the Presiding Bishop for such a case, either Bishop alone would have the power to act on the information at hand, without waiting for anything else to happen. Canon IV.3.23 (b) provides:

Whenever the Presiding Bishop has sufficient reason to believe that any Bishop has committed an Offense and the interests and good order and discipline of the Church require investigation by the Review Committee, the Presiding Bishop shall concisely and clearly inform the Review Committee in writing as to the nature and facts surrounding each alleged Offense but without judgment or comment upon the allegations, and the Review Committee shall proceed as if a Charge had been filed.

Thus whoever substituted for the Presiding Bishop in this case would have the power to proceed without waiting for charges to be filed, as provided in Canon IV.3.23(a), by the required three bishops, or by at least ten clergy and laity (of whom at least seven---one priest and six lay persons---would have to be from the Diocese of Nevada, where the Presiding Bishop is still canonically resident). Moreover, to stop the unlawful proceeding against Bishop Duncan in its tracks, Bishop Chang (or Bishop Price, if in his stead) could issue a temporary inhibition against the Presiding Bishop forbidding her to introduce the resolution, if they felt that she could not be stopped from proceeding otherwise. Canon IV.1.5(a) provides:

If a Bishop is charged with an Offense or Offenses or serious acts are complained of to the Presiding Bishop that would constitute the grounds for a Charge of an Offense and, in the opinion of the Presiding Bishop, the Charge or complaint of serious acts is supported by sufficient facts, the Presiding Bishop may issue a Temporary Inhibition. The consent of a majority of All the Members of the Standing Committee is required for Bishops with jurisdiction.

The last sentence does not have any application to a case involving the Presiding Bishop, who is not a bishop with jurisdiction over any Diocese with a Standing Committee. (The Presiding Bishop does have jurisdiction over the Convocation of Anglican Churches in Europe, but that is not a Diocese, and it has no Standing Committee.) Thus the temporary inhibition, which Canon IV.1.5(c) says may be issued "without prior notice" to the Bishop involved, and which Canon IV.1.7 says "shall be used sparingly and limited to preventing immediate and irreparable harm to individuals or to the good order of the Church," could in this instance be issued by the acting Presiding Bishop alone. Because the bringing of Bishop Duncan before the House without consent having first been obtained to his inhibition would be an extraordinary violation of the Canons on its own, there is a good argument to be made that the high standard of Canon IV.1.7 could be met in this case---especially since the Presiding Bishop appears to have lowered the bar for such inhibitions by her own temporary inhibition of the elderly Bishop MacBurney, retired diocesan of the Diocese of Quincy, in Illinois, whom she at first thoughtlessly prohibited from taking any clerical role at his own son's funeral.

If this scenario sounds beyond belief, it simply illustrates the degree to which the Presiding Bishop's conduct in this matter is unprecedented, and dangerous for the future polity of the Church. Extraordinary dangers call for extraordinary countermeasures. If Bishops can be deposed by a simple majority vote of those present, and without first being inhibited (as the Presiding Bishop claims was proper in the case of Bishop Cox), then no member of the House of Bishops can feel safe. Today it is the orthodox Anglican wing of the House who are on the block, but once a precedent has been set, it could be used against the liberal wing in the future. Once the rules have been chucked overboard, as Robespierre learned in the French Revolution, no safeguards remain to protect those who advocated their abandonment.

No doubt the matter would not have to go beyond a temporary inhibition, and the Presiding Bishop, caught perhaps by surprise, would come to realize the error of her ways. But if she protested the inhibition to the Title IV Review Committee, as allowed by Canon IV.1.5(d), all of the members of that Committee would have to recuse themselves under Canon IV.14.13, because of their participation in issuing the charges against Bishop Duncan, and also because Bishop Jefferts Schori's letter to the House of Bishops discloses that she has consulted the members of the Review Committee on the propriety of her actions, and they apparently confirmed her improper reading of the Canon. Thus they cannot be impartial, and would have to recuse themselves. Bishop Chang (or Bishop Price) would have to select five Bishops to serve as replacements on the Committee. Because of the role that she played in supporting the Presiding Bishop's uncanonical actions in San Joaquin, Bonnie Anderson of the House of Deputies would probably also have to recuse herself from participating, and her Vice President, the Rev. Brian Prior, of Spokane, would select two priests and two lay persons to make up the nine members of the Committee. It would take a two-thirds majority of the Committee, or six votes, to dissolve or modify the temporary inhibition (Canon IV.1.5 (d)).

Meanwhile, the same substitute Review Committee would have sixty days to meet and consider the charges against the Presiding Bishop under Canon IV.3.40. If it decided to go forward (that is, if the Presiding Bishop was still maintaining she was right), it would transmit its version of the charges to the Church Attorney under the Canons, who is Larry White, Esq. of Philadelphia. (However, since he is handling the proceedings against Bishop MacBurney on behalf of the Presiding Bishop, he might also have to recuse himself. It should also be noted that the Presiding Bishop's Chancellor is excluded from acting for the Review Committee by Canon IV.14.18.)

The Church Attorney in turn has 120 days in which to investigate and to report back to the Review Committee; then the Review Committee has a further 45 days in which to weigh his report and decide whether to go forward with a presentment (Canons IV.3.42 and IV.3.43). (In this work, the Review Committee would be assisted by up to three additional church attorneys whom it could appoint as Lay Assessors under Canon IV.3.35. A "Lay Assessor" is defined in Canon IV.15 as "a duly licensed attorney to advise in matters of law, procedure and evidence affecting a Court or Review Committee in its proceedings.") If it does vote to go forward, it is only then that the charges (in the form of a formal presentment) would be made public: up until that point, Canon IV.3.38 requires that all proceedings be kept confidential.

Thus Bishop Chang (or in his place, Bishop Price) could act in complete confidentiality throughout these entire proceedings I have described; if the Presiding Bishop backed down from her plans to have Bishop Duncan deposed, then the proceedings could be quietly dropped, and no one outside of those involved in the House of Bishops and on the Review Committee would ever know what had taken place. (By the same token, charges brought against the Presiding Bishop by three or more bishops, or by ten or more clergy and laity, could now be pending, and the public would not know of it unless and until a presentment was approved.)

I have saved the most fantastical point of all for the last. Under a little-known Canon, the Presiding Bishop herself could be the instrument of her own correction. Canon IV.3.23 (c) provides:

A Bishop who shall have reason to believe that there are in circulation rumors, reports, or allegations affecting such Bishop's personal or official character, may, acting in conformity with the written advice and consent of any two Bishops of this Church, demand in writing of the Presiding Bishop that investigation of said rumors, reports, and allegations be made. It shall be the duty of the Presiding Bishop to cause the matter to be investigated and report the results to the requesting Bishop.

Under this Canon, Presiding Bishop Jefferts Schori could in full confidentiality request two of her colleagues to join her in writing to Bishop Chang (or to Bishop Price, if Bishop Chang recused himself) and in asking that the propriety of bringing the resolution to depose Bishop Duncan be formally investigated. The Canon does not say, but presumably the investigation could be carried out by the replacement Review Committee and by the replacement Church Attorney, as just described. This process would ensure the professional and outside opinions of at least four knowledgeable church attorneys on the proper interpretation of Canon IV.9, would be entirely confidential, and if the attorneys involved are selected impartially for their knowledge and skill in church law, I am confident in predicting that the Presiding Bishop's mistaken reading of the Canon would be refuted. And all this could happen with no loss of face, and no damage to the Presiding Bishop's prestige, since the whole affair would be kept confidential. [Update - 05/28/2008: For an example of another Bishop who recently availed himself of the procedure under Canon IV.3.23 (c), see this post.]

Of course, the Presiding Bishop is undoubtedly free to obtain a second (or a third, or a fourth) opinion on her reading from outside counsel at any time herself. She apparently believes she has done so, at least in the cases of "an attorney who is an original member of the [Title IV Review] Committee, the chancellors of several dioceses who have been consulted, and the former Chair of both the Standing Commission on the Constitution and Canons and the Legislative Committee on the Canons at the General Convention." She has not, however, produced a signed legal opinion from any of these persons she describes as having consulted. The process I am pointing out in this post would, unlike the apparently informal and verbal opinions which she solicited from acquaintances and colleagues, result in full and formal written legal opinions authored by independently hired church attorneys, who would not be beholden to Presiding Bishop Jefferts Schori for either their compensation or their thinking. If, as I predict, they read the Canon to prohibit its use for Bishop Duncan's deposition, the only persons who need find that out are Bishop Schori, Bishop Chang (or Price), and the replacement members of the Title IV Review Committee. The charges against Bishop Duncan would not be laid before the House in September, and the future of the Episcopal Church, while by no means rosy under its current leadership, would at least not be as grim as it looks now.