“Oh what tangled webs we weave, when first we practise to deceive.” Sir Walter Scott
A Response to the Task Force on Property Disputes By Wicks Stephens Chancellor Anglican Communion Network
Under date of May 27, 2008, the House of Bishops’ Task Force on Property Disputes published a memorandum (the “Memo”) on the “proper use of abandonment procedures for bishops.”
Initially, I was intrigued that a group of bishops assigned the task of finding ways to keep property from leaving TEC would be called upon to add their voices to the thus-far futile attempts of the Presiding Bishop to justify the failure to obtain the required consents to depose Bishops Cox and Schofield. However, on reading the Memo, I found it to be just another example of how TEC attempts to justify actions which follow neither the canons nor approved rules for canonical interpretation. In short, this is simply another group in power in TEC saying: “It’s so because I say it’s so.” Let me demonstrate briefly.
The issue at hand is whether the House of Bishops (HoB) met the canonical requirement for its consent to the deposition of Bishops Cox and Schofield. The consent requirement is set forth in Canon IV.9.2 as follows:
“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….” (Emphasis added.)
Near the end of the meeting of the HoB, held March 7–12, 2008, the issue of consent to the proposed deposition of Bishops Cox and Schofield was put before the House. It is reported in the Memo that a voice vote was taken, and that, though the vote was not unanimous and included abstentions, it “clearly indicated majority consent.” It is without question that the “majority consent” referred to in the Memo is not that required by Canon IV.9.2, but rather is only an affirmative vote of a majority of those present and voting at the time of the meeting.
Now, here’s what is amazing. Neither the Memo nor the Presiding Bishop has attempted to argue that the consent requirements of the Canon were met. Instead, each invokes a “line of reasoning” designed to support the argument that what happened was and should be enough to validate the consent even though it was not “a majority of the whole number of Bishops entitled to vote. Here’s how the Memo, and to a large extent the Presiding Bishop, attempts to make that case.
1. First of all, the Memo argues that the “intended meaning” of Canon IV.9.2 is that a simple majority of those present and voting is all the consent that is necessary to depose a fellow Bishop. That, of course, is not what the Canon says. It requires “a majority of the whole number of Bishops entitled to vote.” Further, a mere majority of those present and voting is most assuredly not the same as a majority of the whole number of Bishops entitled to vote. Article I.2 of TEC’s Constitution says that the whole number of Bishops entitled to vote are:
“Each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assisting Bishop, and every Bishop who by reason of advanced age or bodily infirmity … has resigned a jurisdiction, shall have a seat and a vote in the House of Bishops.”
Since there are somewhere in the neighborhood of 290 Bishops who qualify under Article I.2 for a seat and vote in the HoB, a majority of those would be at least 146 Bishops. Rumor has it that fewer than that number were present and voted at the time of the vote to consent was taken. And of those voting, according to the Memo, there were dissenting votes as well as abstentions. Thus there is no way the canonical requirement for consent was met.
The accepted rules that govern canonical interpretation require first that the canon be examined for its plain meaning. Where the meaning is plain and not ambiguous, it is applied. We’ve done that and the outcome is obvious as set forth above. To try to overcome the lack of an adequate vote when the plain meaning of the canon is applied, the Memo suggests we should instead search for the “intended meaning “of the canon. What follows is a fanciful “interpretation” of the “intent’ of the canon’s drafters and changers beginning in 1853 and following through to the amendment of the canon in 1904. The conclusion the Memo reaches is that the plain words of the canon do not represent the “intent” of the drafters of the cited amendments. Even were the search for the intent of the drafters an appropriate inquiry, that conclusion is unpersuasive. The drafters of the amendments did not leave us a record of their intent apart from the language of the canon and its changes. Speculation about their intent is therefore nothing more than speculation.
1.
The second basis upon which the Memo argues that the vote was valid is that in previous times a vote of consent has been taken in the same way and no one objected. “Two wrongs don’t make a right.” A review of the history of this Canon in White & Dykman demonstrates that each amendment came from a set of specific circumstances which showed a need for that amendment. There is no reason that the canon cannot again be amended if that is what TEC desires.
2.
The Memo’s third argument as to why the vote should be found sufficient is that “procedural safeguards assure fairness and justice in the case of the Bishops accused of having abandoned the Communion of this Church.” What safeguards are those? Are they that:
* The canon does not allow for a hearing?
* The canon does not allow for legal representation at the meeting of the HoB’s at which the vote is to occur?
* The canon does not allow the accused to speak at the meeting?
* The Bishops are not required to examine the record which is offered in support of the certification of abandonment to determine for themselves whether or not to consent to the deposition?
* The matter of the consent can be accomplished by a voice vote rather than requiring the safeguard of a ballot or roll call vote which would record and preserve the facts of the vote?
If real safeguards of fairness and justice are what are desired, then simply apply the plain language of the canon, rather than an interpretation of that language which is concocted to support a different agenda. When the canon says “a majority of the whole number of Bishops entitled to vote,” don’t try to get away with a lesser consent. When the canons define the term “All the Members” to mean “the total number of the body provided for by Constitution or Canon without regard to absences, excused members, abstentions or vacancies,” honor its plain meaning. When the plain meaning of Canon IV.9.2 is enhanced by reference to other provisions of the Constitution or Canons don’t ignore the clarity so provided. See, for example: Articles I.2, I.3, II.2, II.3, III, VI.2, X, and XII of the Constitution; and Canons III.11, IV.5.25, IV.9.2, IV.15, V.3.
A review of these provisions demonstrates clearly that TEC knows full well how to call for a variety of different “majorities” in its Constitution and Canons. If the drafters of Canon IV.9.2 had intended to require a mere majority of those present and voting to constitute a valid consent to deposition, they surely would have done so.
Conclusion
The Memo is a regrettable effort to justify the unjustifiable. No right thinking person will be taken in by it. Perhaps the Task Force could redeem its work, however, by turning the Memo into a polemic for the amendment at General Convention 2009 of Canon IV.9.2 to require only a mere majority of those present and voting to consent to the deposition of a Bishop of TEC. On the other hand, simplifying the process of deposition for Bishops who disagree with the agenda of those in power may not be in the best interest of the members of the Task Force. After all, tomorrow….
Posted May 30, 2008
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