Part III of The Constitutional Crisis in ECUSA: "If You Want Our Voice, Then We're Giving It to You"

from Anglican Curmudgeon by A. S. Haley

The constitutional crisis in ECUSA continues to worsen. Many people observing the events in South Carolina have drawn a parallel to the shelling of Fort Sumter which started the Civil War, but I believe that to be an inappropriate analogy. There is, after all, no ECUSA "enclave" within the Diocese of South Carolina which could have any parallel to the federal garrison at Fort Sumter before the War Between the States. If a parallel must be drawn, then a closer one would be the situation just before the start of the Revolutionary War, when a distant sovereign was claiming the right to impose duties on the colonies without their having any mechanism to object to such tyranny.

That is not to say that there are no "federalist sympathizers" (sc. "815 loyalists") within the Diocese of South Carolina. There are a few, and as is typical of such misguided federalists, they want to uphold the power of the "national government" over the local one. The problem is that the Episcopal Church is in the United States of America, and is not of the United States of America.

That is a tiny semantical difference between the meaning of "in" and "of", but it is absolutely crucial to understanding the current crisis. So let me repeat: there is no such thing, and never has been any such thing, as the "Episcopal Church of the United States of America." What we have, and always has had since 1789, is what the "federalists" in our midst would too conveniently forget and ignore: a (Protestant) Episcopal Church in the United States of America. (To verify that fact, please see the text of the original 1789 Constitution of PECUSA, which I reproduced in this post (scroll down to the bold and centered headline); and please look at the latest online version of our Constitution, which you may download from this page.) To quote from the Preamble to the most recent version: "The Protestant Episcopal Church in the United States of America, otherwise known as The Episcopal Church (which name is hereby recognized as also designating the Church), is a constituent member of the Anglican Communion . . ." (emphasis added).

Ever since 1789, the Church has acknowledged that it is an entity which exists in, and not as something superior to and above, the churches (dioceses) in the several States of America. That is to say, each State (in 1789, at least) had its own version of the "Episcopal Church" in that State. (The churches in those States later became the churches in each of the numerous dioceses.) Contrast that language to the terminology used to describe the President: we speak of the "President of the United States of America", and not of the "President inthe United States of America" -- the latter would make no sense, given our Constitution which establishes a federal government, separate and above the governments of the individual States.

Likewise with Congress: its official title is "the United States of America, in Congress assembled" -- signifying that each of the States comes together in a larger legislative body, with the powers to legislate for all of them as conferred by the specific clauses of the Constitution. That same Constitution also creates a national executive and a national judiciary, while ECUSA's Constitution does no such thing. It creates only a legislative body, and unlike the United States Congress, which is in session throughout most of each year, ECUSA's legislative body is in session for just a few days every three years. So, please -- spare us the "parallels" between the government of ECUSA and the government of the United States; there are precious few, and none which is relevant to the present discussion.

A government of a country needs an executive power, as well as a judiciary power, in addition to a legislative one. A "government" for a church, on the other hand, can get along perfectly well with only a legislative body to regulate national standards for clergy, and with no supreme executive, or supreme judiciary authority. Indeed, that is just how the Episcopal Church in the United States of America has been, for the last 221 years of its existence.

There are those in the Episcopal Church today, however, who would stand its history on its head, and claim that the Presiding Bishop is both its chief executive and its chief judicial officer. The only duty of the Presiding Bishop conferred on that position by ECUSA's Constitution, however, is to preside -- over the House of Bishops. All else has been conferred by subsequent canons -- such as the making of the Presiding Bishop "the chief Pastor and Primate" of the Church.

In the hierarchy of church law, the Constitution is at the top. Then comes the Book of Common Prayer, with its rubrics and liturgies which require two successive meetings of General Convention to be changed. Last come the Canons, or bylaws, which may be adopted by vote of a single General Convention.

If Canons (bylaws) are enacted which are contrary to the Constitution or the Book of Common Prayer, what is one to do? How can one follow canons which are contrary to the Church's higher law, and still claim to "accede" to the Constitution of the Church?

This is the constitutional dilemma which now, thanks to the misguided zeal of General Convention 2009 and its predecessors, confronts every diocese in the Church, and not just the Diocese of South Carolina. The latest General Convention adopted far-ranging changes to the Title IV disciplinary canons of the Church. There is no rational way in which any sane person, viewing the changes as a whole, can conclude that all of the changes so made are consistent with the provisions in ECUSA's Constitution.

For just one example of what I mean, take first this paragraph from (revised) Canon IV.7.1 as approved at GC 2009 (bold emphasis added):

At any time the Bishop Diocesan may issue a Pastoral Direction to a Member of the Clergy, canonically resident, actually resident, or licensed in the Diocese.

A "Pastoral Direction" must satisfy these requirements (set out in revised Canon IV.7.2):

A Pastoral Direction must (a) be made in writing; (b) set forth clearly the reasons for the Pastoral Direction; (c) set forth clearly what is required of the Member of the Clergy; (d) be issued in the Bishop Diocesan's capacity as the pastor, teacher and overseer of the Member of the Clergy; (e) be neither capricious nor arbitrary in nature nor in any way contrary to the Constitution and Canons of the General Convention or the Diocese; and (f) be directed to some matter which concerns the Doctrine, Discipline or Worship of the Church or the manner of life and behavior of the Member of the Clergy concerned; and (g) be promptly served upon the Member of the Clergy.

Have you got that? A diocesan bishop may "at any time" issue such a "Pastoral Directive" to a member of the clergy under his or her jurisdiction. However, what happens if the "member of the clergy" in question is a bishop, such as a Suffragan or Assistant Bishop? In that case, revised Canons IV.17.1 and IV.17.2 provide (bold emphasis added):

Sec. 1. Except as otherwise provided in this Canon, the provisions of this Title shall apply to all matters in which a Member of the Clergy who is subject to proceedings is a Bishop.

Sec. 2. In all matters in which the Member of the Clergy who is subject to proceedings is a Bishop, the following terms used in Canons IV.5 through IV.16 and Canons IV.18 and IV.19 shall have the following respective meanings:

(a) Disciplinary Board shall mean the Disciplinary Board for Bishops as provided in Canon IV.17.3.

(b) Intake Officer shall mean a person appointed by the Presiding Bishop.

(c) Bishop Diocesan shall mean the Presiding Bishop, unless the Member of the Clergy who is subject to proceedings is the Presiding Bishop, in which case Bishop shall mean the Bishop authorized by Canon IV.19.24. . . .

So by the express language just quoted, the Presiding Bishop of ECUSA will be empowered (or would be, if the canonical changes were constitutional) to issue to any other bishop in the Church, at any time, a "Pastoral Directive" which touches on "some matter which concerns the Doctrine, Discipline or Worship of the Church or the manner of life and behavior of the Member of the Clergy concerned . . .".

If you contend that such a change was never intended, then you have to explain the specific language which introduces the revised version of Canon IV.17.1: "Except as otherwise provided in this canon [i.e., Canon IV.17], the provisions of this Title [i.e., Title IV on discipline] shall apply to all matters in which a Member of the Clergy who is subject to proceedings is a Bishop." The authority to issue a Pastoral Directive is contained in Title IV, and that authority rests exclusively in the "Bishop Diocesan." And according to Canon IV.17.2, "[i]n all matters" in which a bishop is the subject of Title IV proceedings, the term "Bishop Diocesan" shall mean the Presiding Bishop.

This has never before been the case in the 221-year history of the Episcopal Church. Any Episcopal canon lawyer worth his salt will confirm to you that at no time in its history has the Presiding Bishop ever had the power to issue a "Pastoral Directive" to a colleague, directing that they do "what is required . . . concern[ing] the Doctrine, Discipline or Worship of the Church or the manner of life and behavior of the [Bishop] concerned." Such a "directive" is the sole prerogative of an archbishop with metropolitan authority: for example, the Archbishop of Canterbury may issue a "pastoral direction" to any member of the clergy in his Province of Canterbury, or the Archbishop of York may do likewise in his Province.

One cannot, however, be conversant with the early history of ECUSA and at the same time be ignorant of the overwhelming sentiment among its founders -- both clergy and laity alike -- against the power of bishops, and in particular, metropolitan bishops. That is why the 1789 Constitution of ECUSA gave no such powers to the Presiding Bishop, and why no version of the Constitution in the years since has ever conferred such powers, either.

What, then, are we to make of the revised Title IV passed at GC 2009? Does General Convention have the ability to confer powers upon Church officials which go beyond what the Constitution itself confers on those officials? Manifestly not.

But there are those, such as Bishop Mathes of San Diego, who insist that "we can work this out in subsequent Conventions." Yes, certainly -- just the way it was "worked out" at GC 2009? Once the power of General Convention to exceed the Constitution is given prima facie recognition -- even if only until the next Convention -- the precedent has been set. Thereafter there is no limit which can be logically set upon its authority.

The leadership at 815 is fond of going into the courts and claiming that diocesan Conventions have "no authority" to enact provisions which contravene the Constitution of ECUSA. Fine, but then why does General Convention have such authority?

This is the current dilemma in a nutshell. Liberals such as Bishop Mathes are incapable of perceiving the dilemma at all, because to their mind and way of thinking, whatever rule "the majority" is for at the moment suffices -- let the "minority" go wring their hands, because "the majority" is currently in power, and the Presiding Bishop can therefore do whatever the majority allows her to do.

Thus, according to Bishop Mathes, a diocese is bound to "accede" to canons which violate or exceed the authority granted to the Presiding Bishop under the Constitution -- while at the same time, the diocese must also "accede" to the Constitution which is thereby violated and trampled. The proposition would make sense only to liberals, who are not confined to the strictures of logic. If a Canon has been adopted which violates or exceeds the Constitution, well, then, it must be legitimate, because "the majority" of General Convention voted for it, and thus it "made the appropriate decision" -- for the time being, at least, until a new majority comes into power.

Bishop Lawrence and his Convention are trying to point out the absurdity of the present situation, in which dioceses and their bishops are being asked to "accede" to canons which violate ECUSA's Constitution, at the same time as they accede to the Constitution itself. As Bishop Lawrence responded to those who asked him just to fall in line, so that his voice may continue to be heard, "If you want our voice, then we're giving it to you."

In pointing out just one flagrant example of how the revised Title IV violates the Constitution, I do not mean to imply that there are not many others -- see this paper from the Anglican Communion Institute for a more comprehensive analysis. The point is that we have a constitutional crisis in ECUSA, and no one but Bishop Lawrence and his Diocese are recognizing that plain fact. If those on the left cannot see what is so plain to those who are versed in the Church's history and canonical law, then there is truly no hope for ECUSA's future. It will descend into a chaos that resembles nothing so much as the years of the French Revolution -- when the "law" was what ever Robespierre and his "Committee on Public Safety" said it was.

Note, by the way, the parallel of Robespierre and his Committee with the revised canons, which also purport to give the Presiding Bishop the authority to command, or even inhibit ["restrict"] another bishop for the "safety . . . of the Community." I kid you not. Here is the text of revised Canon IV.7.3 (remember that the term "Bishop Diocesan" is to be read, in the case of fellow bishops, as "the Presiding Bishop" -- bold emphasis added):

If at any time the Bishop Diocesan determines that a Member of the Clergy may have committedany Offense, or that the good order, welfare or safety of the Church or any person or Community may be threatened by that member of the Clergy, the Bishop Diocesan may,without prior notice or hearing, (a) place restrictions upon the exercise of the ministry of such Member of the Clergy or (b) place such Member of the Clergy on Administrative Leave.

Is that clear? At any time, according to this Canon, the Presiding Bishop may decide on her own that another bishop in the Church constitutes a "threat" to the "good order, welfare or safety" of "the Church, [or of] any person or Community", and proceed, again on her own and totally out of the blue, to restrict that bishop from all further ministry in the Church. The revised canons further provide that the Presiding Bishop (in place of the "Bishop Diocesan") may specify a restriction of any duration (Canon IV.7.5), and may combine the restriction with a "Pastoral Direction" (Canon IV.7.6). Under the revised canons, the restriction is subject to "review" by a panel of three bishops, one priest or deacon, and one lay person; but the Pastoral Direction is not subject to review of any kind whatsoever.

In light of what I have just laid out, please listen again to the words of Bishop Lawrence, addressed to his Diocesan Convention yesterday (emphasis added):

On Tuesday evening of this week as Allison and I were driving home from Sewanee I received a phone call from a fellow bishop. He said that he and five other bishops had received an email earlier that evening from the Presiding Bishop. She was encouraging each of them to speak with me as “the apparent focus of this diocesan gathering does not bode well for [Mark’s] status as a bishop who has sworn to uphold the doctrine, discipline, and worship of this Church.”. . .

Well upon hearing of her email to these bishops I wrote directly to the Presiding Bishop on Wednesday morning addressing many of my concerns and reminding her of the concerns of this Convention; that she had been informed by certified mail of the resolution which expressed our expectation that she remove the attorney unconstitutionally retained within this diocese. I then wrote that after six months we had still not heard from her. While her email in response failed once again to address this concern, she did write of her fear about the havoc that she believes is likely to ensue if I keep on my present course. What she fails to address or I suppose to understand is the havoc that is likely to ensue if we depart from our present course. . . .

Several of those bishops who received the email have called me or sent me emails since that email was sent to them. More than a few of them said, “Mark, we need your voice in the house of bishops. We need the voice of South Carolina.” I said, “This is my voice. You need to understand. This is my voice.” So the question is, “Is there a place for a vigorously stated minority opinion in this church?” I believe it is also the voice of many of the people here in this Diocese of South Carolina. If you want our voice, then we’re giving it to you.