Response to Bonnie Anderson

Via TitusOneNine:

Written by: The Anglican Communion Institute, Inc.
Monday, October 26th, 2009

The Diocese of South Carolina received a letter from Bonnie Anderson, the elected President of the House of Deputies. It was followed by a second statement saying that it was her practice to send such letters to each Diocese before their conventions.

In what follows we pay attention to sections of the first letter, where the President of the House of Deputies spoke at some length of her interpretation of the resolutions to be voted on at the South Carolina Diocesan Convention. These remarks seek to be substantive in character; presumably they represent her own considerations as well as those of the Executive Council of The Episcopal Church. For that reason they deserve comment and evaluation of their own.

At the outset, we note that it is the duty of the President of the House of Deputies to preside over that body. Neither she nor the Executive Council is the constitutionally-designated Ecclesiastical Authority in the Diocese of South Carolina. It is not her role to instruct or interfere with the lawful diocesan Authority.

It remains an open question what the legal effect of resolutions passed at General Convention genuinely is. We have, for example, heard it claimed that there is a distinction between “descriptive” and “prescriptive” resolutions and that controversial ones (D025 and C056) were “descriptive.” It is hard to know how a non-prescriptive resolution could not be described, as the South Carolina resolution intimates, as without effect in that Diocese. But we proceed on the logic of the letter, where something more seems to be at stake.

1. Anderson Text:

Without the omitted language, someone reading the Resolution could come away with the idea that no departures from the doctrine, discipline and worship of the Church of England are permitted at all when the expectation has always been that alterations would be made. The Preface, set forth in October 1789, acknowledges our debt to the Church of England for this Church’s “first foundation and a long continuance of nursing care and protection” and goes on to quote from the Preface of the Book of Common Prayer of the Church of England at that time that “the Forms of Divine Worship are alterable and changes should be made according to the various exigency of times and occasions.”

Ms Anderson apparently believes that departing from the teaching of the Communion, or from the language of the BCP in respect of blessing in Christian marriage (now to be extended, contra the BCP, to same sex couples, as permitted by General Convention 2009) constitutes an ‘expected alteration.’ A ‘various exigency of time and occasion’ is presumably General Convention 2009’s exigency of wanting to permit rites for same-sex blessings, without addressing the constitutional legality of doing so without changing the BCP in accordance with this desire.

2. As for the Oath as cited by Anderson:

I do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, and to contain all things necessary to salvation; and I do solemnly engage to conform to the Doctrine, Discipline and Worship of the Episcopal Church.

Anderson apparently does not realize that issue is being taken with the constitutionality of what General Convention has done precisely because it is at odds with the Oath she herself sees as central. General Convention has not solemnly engaged to conform to the Doctrine, Discipline and Worship of the Episcopal Church because it has given permission to Bishops to bless same sex unions without bothering to change the marriage blessing rites the BCP regulates as in accordance with such Doctrine and Discipline.

3. Anderson text:

However, declaring actions of General Convention to be null and void and having no effect in a diocese is contrary to our polity and our Constitution and Canons.

What is being said is that the Constitution and Canons have been undercut or violated by the latitude General Convention has given in its resolutions D026, C056. Bishop Frey made this point quite clearly on the floor of General Convention. It would therefore be up to Ms Anderson to show that the Constitution and Canons were not violated by these resolutions. That is the point at issue. General Convention is not above the Constitution and Canons, nor is it identical with them. That would be to make nonsense of the very notion of Constitution and Canons. An assertion is not a legal fact. This is the matter the resolution is SC has concern about, precisely because it wishes to be in conformity with the Constitution and Canons of TEC on this issue.

4. Anderson text:

All dioceses must make an unqualified accession to the Constitution and Canons of The Episcopal Church.

Followed by:

The General Convention is the governing body of the Church and the authority of all other entities and offices comes from General Convention.

Here again, without any argument, the Constitution and Canons of the Episcopal Church are simply conflated with General Convention, as though they were one and the same. But this is belied by the Constitution’s insistence that General Convention, should it seek to undertake to alter the Constitution, must do so by specific procedures so stipulated by the Constitution itself, and this is the requirement if the Constitution is to be changed. The General Convention is under the authority of the Constitution. It is not identical with it. As we have repeatedly demonstrated with historical and legal arguments, dioceses are not made subordinate to General Convention by our Constitution. Conclusory assertions to the contrary from one who has no constitutional authority in the Diocese of South Carolina are not persuasive.

As for ‘unqualified accession.’ It has been pointed out at numerous times that accession, as a legal term, is in the gift of the one acceding, and to speak of ‘unqualified’ does not mean ‘irrevocable.’ To the contrary, in the legal context from which the term ‘accession’ is drawn, a qualified accession is well-known and understood as a partial acceptance subject to stated qualifications or reservations. Moreover, given the First Amendment implications of acceding to membership in religious associations, legal authorities suggest that any attempt to make such an accession to membership irrevocable would be unenforceable. To simply assert this, as does Ms Anderson, is to compound the error. Moreover, accession is to the Constitution and Canons, not to General Convention (or the Executive Council) and indeed this is what is being argued is under threat.

5. Anderson text:

So, adoption of a resolution declaring an action of General Convention null and void is itself, a nullity.

Not if the action is in violation of the Constitution. Moreover, the resolutions were described by proponents as ‘descriptive.’ This raises the question as to what legal character a resolution has at all. And we note that liberal bishops have repeatedly said that they are not bound by General Convention resolutions. One need only point to resolution B033 from 2006 as one instance among many.

Conclusion

What Anderson has achieved in this formal letter to South Carolina is a demonstration of what happens when General Convention undertakes to permit actions without bothering formally to amend the Constitution and Canons of The Episcopal Church. A similar demonstration is being made in the Presiding Bishop’s recourse to a Canon involving renunciation of orders so as to deal with a problem it was never designed to address. The consequence of such action is the creation of a view of Holy Orders and a ‘denominational regularization’ of them without any counterpart elsewhere in the Anglican Communion. The point is this. To use ‘abandonment of communion of this church’ to refer univocally to TEC makes TEC into its own, private communion. If this be the case, TEC is defining itself and its orders in a way different from that of the Anglican Communion as a whole. For Anglicans, communion is not defined within the circumference of a single province and orders are not conferred within a single province alone.

By arrogating to herself the role of commentary, evaluation, and exhortation, the President of the House of Deputies adopts an authority vis-à-vis the Diocese of SC nowhere granted to her by the Constitution and Canons she claims to be defending. Was the President of the House of Deputies elected with a clear remit to function in this way vis-à-vis the Dioceses of The Episcopal Church? Naturally, the President of the House of Deputies might wish to write a letter to the Diocese of South Carolina and encourage attendance at General Convention. But here the intention is to speak on behalf of the Constitution and Canons as well as on matters of doctrine, church history and theology. Where do the Constitution and Canons grant her authority to address the Dioceses in this way, and is election to this presidential office intended to grant her authority as here presumed?

The questions are serious ones because it appears that the elected leadership of The Episcopal Church is now seeking a clear authority and hierarchy above the Bishops of the Church and also above the Constitution and Canons, without at the same time following the legal procedures necessary for adopting and exercising such hierarchy, constitutionally. If there are those within TEC who desire constitutional reform of TEC polity along the lines of a corporate model or the hierarchical structures of churches such as the Church of England, the Roman Catholic Church or the Orthodox Churches, there are constitutional procedures to follow.

So to receive a notice from an elected official which purports to interpret doctrine, discipline and worship in this church, and to defend the Constitution and Canons, without an obvious warrant for doing so from the same Constitution risks exposing the very problem South Carolina and other dioceses have identified as needing address.