by Raymond Dague
On a late afternoon last fall, Fr. Paul Kowalewski made a phone call to my
rector. At the time Kowalewski was the canon to Bishop Gladstone "Skip"
Adams of the Diocese of Central New York. Several years back Bishop Skip
gave Fr. Kowalewski the title =93canon visionary." The purpose of his call
was to complain to my rector about an essay which I published online in
June of 2005 entitled "The Theology of Heresy in Central New York".
That essay was highly critical of a diocesan invitation to bring Jesus
Seminar theologian Marcus Borg to present a series of talks to Central New
York clergy. Dague's essay was divisive, said Fr. Kowalewski. Raymond Dague
should be subjected to church discipline for his conduct, Fr. Kowalewski
told my rector. Flabbergasted by the suggestion, my rector said, "You want
me to excommunicate him for writing an essay critical of Marcus Borg and
the diocese!?" My rector immediately said "no" to the diocesan canon's
suggestion, and then called to tell me about the phone call.
I immediately hit the books to look into how a diocese could exercise
church discipline against a lay person. I discovered that a bishop and the
diocese cannot discipline a layman in the Episcopal Church. This is a
legacy from colonial times when an American church was as nervous of the
arbitrary power of bishops as it was of the arbitrary power of the British
king. Since its founding in the days before the United States Constitution
was written, no bishop or diocese of the Episcopal Church can discipline
any layman. Only clergy are subject to a bishop's discipline.
But if some folks have their way at General Convention 2006 that will all
change. Laity, including chancellors, church lawyers, bloggers, wardens,
vestrymembers, treasurers, secretaries, clerks, lay activists, or even the
directress of the parish altar guild would be subject to punishment by
bishops which can include removal from any church position or office.
The mechanism for this is a complete revision of the entire chapter on
church discipline. This proposed replacement to the existing Title IV of
the Canons can be found in the 2006 Blue Book as part of the report of the
Task Force on Disciplinary Policies and Procedures.
Catherine M. Waynick, the Bishop of Indianapolis, in the summary of the
revisions identifies what she says is "a need to be able to hold lay
members of the Church accountable in their formation and behavior in
leadership and ministry roles in the community of faith." According to Bp.
Waynick the "new canon proposed in this report reclaims the broader meaning
of discipline." And because this new canon is so complicated and different
from the existing disciplinary canons, the committee which proposed the
canons says that "we have enlisted the help of professional communicators,
who have graciously offered their talents as a gift to this work" to
explain them to us.
Well, the "professional communicators" have not delivered their verdict as
of this writing, so as a canon lawyer, I will lend a few thoughts to the
endeavor. Others in the coming weeks will give a detailed legal analysis of
these disciplinary canons covering them section by section. I will not do
that here. My analysis is geared to the lay person, not the canon lawyer. I
will review how these proposed disciplinary canons affect the laity.
The first thing the proposed canons do to accomplish their desired result
is to define "minister" to mean "any lay person who is an adult member of
this Church." Proposed Canon IV.2 In other words, everyone other than the
kids in the nursery are defined as ministers.
Then under the "Accountability" provision it says that a "Minister shall be
subject to proceedings under this Title for: the commission or omission of
any act which would justify the use of the Disciplinary Rubrics in the Book
of Common Prayer [or] knowingly violating or attempting to violate,
directly or through the acts of another person, the Constitution or Canons
of this Church or of any Diocese." Proposed Canon IV.3.1(a)(b)
Under current rules, only my rector could discipline me using the
Disciplinary Rubrics in the Book of Common Prayer found on page 409 of the
prayer book. It is called excommunication, or denial of the sacrament of
the Eucharist. It can only be done to "a person who is living a notoriously
evil life." And who better to know that than your priest. But under the new
proposed canons, anyone could charge me with that.
Does this mean I could file charges against Gene Robinson's same sex
partner for being "a person who is living a notoriously evil life," and he
could file counter charges against me for filing "homophobic" charges
against him? Could Gene Robinson=92s same sex partner be charged for taking a
hotel room with Gene for the night within the boundaries of a
traditionalist diocese? And then some diocesan court somewhere decides?
Traditionalist and revisionist activists could make a cottage industry out
of following their enemies and charging them with offenses. This should
make for an interesting church experience for us all.
Also under the proposed canons, violation of any canon of the church or any
canon of any diocese could result in charges. Every lay person better start
taking his copy of the canons around with him along with the Bible and the
Book of Common Prayer. And you better have a good canon lawyer on retainer,
since the average layperson does not know what is in the canons or how to
apply them.
Which bishop or diocese can try the layperson on changes? According to
Proposed Canon IV.19.5(a)(b) a lay person shall be subject to disciplinary
proceedings in the diocese where he is "canonically resident or in any
diocese in which an Offense is alleged to have occurred."
Canonical residence? In the existing canons, only clergy, not laity have
canonical residence. Under the new proposed rules, we laity now will all
have "canonical residence" where we live or attend church. Proposed Canon
IV.19.6
In addition even a bishop or diocese where we are not canonically resident
can charge us "in any diocese in which the Minister has performed his or
her Ministry." I suppose this means that I as a New Yorker could be hauled
up on changes in California for giving a speech there, or Episcopal
bloggers might be brought up on charges anywhere the internet goes.
How far can a bishop reach back to bring a layperson up on changes?
According to Proposed Canon IV.4 there is no statute of limitations.
Something I do the day after the new canons take effect can be used against
me 30 years later. The civil law with statutes of limitation are not this
draconian.
I am the assistant chancellor for the diocese of Albany. Can my bishop in
Albany protect me from charges elsewhere? Nope. Under Proposed Canon IV.19.5
(c)(d) my Albany bishop's decision that the charges against me from
somewhere else should be resolved in his court can be overruled by the
president of two different disciplinary boards, depending on where the
charges were filed against me.
How much evidence does the court need to prove that I did something wrong?
Not much, say the new rules. According to Proposed Canon IV.19.15 the
church uses the standard of proof by "a preponderance of evidence." For the
non-lawyers, that is the lowest level of proof in the law.
The toughest standard of proof is "beyond a reasonable doubt" which is used
in criminal cases. Below that there is the lesser standard of "clear and
convincing evidence" which is used in lots of situations where the matter
is very weighty, yet it is not a criminal case, such as in New York family
courts when you are charged with neglecting or abusing your children. The
lowest standard is "a preponderance of evidence," which is used with
personal injury cases.
The existing standard of proof in the current disciplinary canons (which
cover only clergy) is =93clear and convincing evidence.=94 The existing rule=
s
presume that church discipline is a matter of much importance. The irony of
the church lowering the standard in these proposed canons to the level used
in an automobile negligence lawsuit is too obvious for comment. I suppose
this is consistent with lowering standards of sexual morality.
Space does not permit me to describe the long and convoluted procedures
used under the proposed canons to conduct these disciplinary proceedings.
Clearly we will need to await the professional communicator=92s report to
figure them out. As a canon lawyer, I am still working on them. If someone
is brought up on charges, given the complicated nature of the procedures,
there will be a tendency to just ignore the whole thing as a bad dream. But
alas, that too can land you in trouble, since Proposed Canon IV.3.1(c) says
that one of the grounds for discipline is =93failing without good cause to
cooperate with any investigation or proceeding=94 for discipline. So merely
ignoring the process of discipline is ground for discipline irrespective of
whether you did anything wrong in the first instance.
A lay person brought up on charges under this new system will have two
choices: either quit and worship at another church down the street, or
scrape up lots of money to pay a canon lawyer who understands this
complicated process to fight for vindication.
Bluntly put, these proposed disciplinary canons are a disaster. This is
church discipline from hell. They are the product of a siege mentality by
an institution which seeks to stomp out opposition to the agenda of the
higher-ups by removing any laity who stand in their way. The very threat of
this process will make all but the most stout-hearted soul acquiesce.
The introduction to these proposed canons claim to help the laity
develop =93habits which can form all members of the Church in healthy and
responsible ministries and which can produce reconciliation and healing
when failures occur.=94 They will not do that. They will be mechanisms of
tyranny by bishops and other diocesan leaders against any laity who do not
do the bidding of the diocese, be it revisionist or traditionalist.
In the words of the proposed Canon IV.1 the leadership can under these new
rules =93hold each one accountable=94 for what they do in the church. And th=
ere
is no mechanism to stop a bishop who controls his diocesan judicial process
from =93disciplining=94 any lay person who opposes the bishop or the diocese=
on
any matter.
Traditionalist laity on a vestry in a revisionist diocese can be removed,
or for that matter, revisionist laity of a parish vestry in a
traditionalist diocese can be booted. Only canon lawyers will benefit from
these new rules. They will be an expensive mess for anyone else caught up
in this process. In a church which calls itself =93Christian=94 these propos=
ed
disciplinary canons should be =93dead on arrival=94 at the General Conventio=
n.
The supreme irony of all this is that today=92s Episcopal Church has shown
itself so dysfunctional that it cannot even discipline someone wearing a
miter since the days of Bishop Pike in the 1960s and Bishop Righter in the
1980s. So now we will take a crack a cleaning up the laity?
What will the deputies to the General Convention do with this draft of the
Proposed Canons. Maybe with all the discussion of the Windsor Report and
the confirmation of gay bishops, nobody will notice as it is quietly passed
into church law. But if they are smart and alert in Ohio in June they will
politely hand them back to Bp. Catherine Waynick and her =93professional
communicators=94 and say, =93thank you, but try again three years from now.=94=
Then if cooler heads prevail, church discipline against this canon lawyer
for publishing an essay which offended the bishop=92s canon visionary will
have to wait another day at least three years hence.
Raymond Dague is an attorney in Syracuse, New York, a member of St.
Andrew=92s in the Valley in Syracuse, and assistant chancellor to the bishop
of the Diocese of Albany.
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