Fast and Furious: as GC 2012 Prepares to Open, the ACI Weighs in on the TEC-9 Charges

from Stand Firm by A. S. Haley 

The Anglican Communion Institute has now published its assessment of the spurious complaints filed against nine Bishops in the Episcopal Church (USA), as discussed in this previous article. The ACI provides an excellent factual background for the reasons leading up to the signing of the affidavits in the Quincy litigation and the signing of the amicus brief addressed to the Supreme Court of Texas. Here is just an extract, to show their perspective (bold emphasis in the original):

Many in the church fail to comprehend the legitimacy of the bishops’ claim that they are defending the traditional polity of TEC. But consider three authorities whose works were standard texts when today’s senior clergy were trained. First, in 1961 Canon Powel Dawley in the volume on polity in the official and widely-distributed series, “The Church’s Teaching,” summarized the role of the diocese as follows:

At the time that the American Revolution forced an independent organization upon the Anglican colonial parishes, the first dioceses existed separately from each other before they agreed to the union in 1789 into a national church. That union, like the original federation of our states, was one in which each diocese retained a large amount of autonomy, and still today the dioceses possess an independence far greater than that characteristic of most other Churches with episcopal polity….Diocesan participation in any national program or effort, for example, must be voluntarily given; it cannot be forced. Again, while the bishop’s exercise of independent power within the diocese is restricted by the share in church government possessed by the Diocesan Convention or the Standing Committee, his independence in respect to the rest of the Church is almost complete.

Second, in his widely used 1965 canon law handbook Daniel Stevick, a long-time faculty member at the Episcopal Divinity School and its predecessor, relied on Dawley and concluded:

The Episcopal Church is not, strictly speaking, a single jurisdiction. A diocese is free to accept or reject or qualify its national responsibilities….Work done, programs initiated, or social witness borne by departments of the Executive Council acting under general mandate of [General] Convention can be ignored or repudiated….[A]t present, diocesan support of the work of the national church is voluntary; commitment can be withheld. An entire group can, in effect, contract out of responsible participation in the life of the larger body.

Finally, the pre-existence of separate independent dioceses is also recognized in the current edition of White & Dykman, the official commentary on TEC’s constitution and canons: “Before their adherence to the Constitution united the Churches in the several states into a national body, each was completely independent.”  White & Dykman describe the national body they created as “a federation of equal and independent Churches in the several states.”

The point of including these authorities here is not to recapitulate the polity analysis but only to show that the views expressed by the accused bishops has long been the mainstream understanding of TEC polity. Significantly, witnesses on behalf of TEC are now testifying under oath in courts around the country that these propositions are false.
At no time since the Bishops’ Statement was published in 2009 has any Title IV complaint been made that holding or publishing these views is a canonical violation.

The ACI article next cites three concerns they have written extensively on, and which they continue to have, with regard to the new Title IV disciplinary canons—concerns about which, they painfully note, the present General Convention and its Standing Committee on the Constitution and Canons propose to do exactly nothing:

The revisions purport to give unconstitutional metropolitical authority to the Presiding Bishop, giving that office precisely the same authority over other bishops that diocesan bishops have over their clergy. Not only is there no constitutional basis for this unprecedented step, this approach is fundamentally incompatible with the ordination vows of the different orders of clergy: priests and deacons pledge obedience to their diocesan bishops, but bishops’ vows contain no such promise of obedience to any other office or body. The new Title IV thus subverts both the Constitution and the Ordinal in the Book of Common Prayer and re-defines the episcopal office.

The revisions infringe on the exclusive constitutional authority given to dioceses for the trial of priests and deacons. Few things are as clear in TEC’s history as the fact that the Constitution allocates to the dioceses the authority for disciplining diocesan clergy. That clarity derives in no small measure from the fact that almost from its inception, TEC has had a vocal contingent of canonical experts who disagreed with this constitutional allocation of authority and who made sustained efforts to change it. All of these efforts were unsuccessful, and their repeated failure only serves to underscore that the constitutional authority for clergy discipline very intentionally rests with the dioceses. (To those readers skeptical of this conclusion: please read the article linked below, “Title IV and the Constitution”; the conclusion is irrefutable.)

The revisions deny accused clergy due process protections widely seen as essential to fair trials. The definitions of offenses, the procedures for initiating and conducting proceedings and the standards for interim disciplinary measures are vague and overbroad and have already led to numerous and frivolous proceedings, inexplicable inconsistencies and arbitrary applications of discipline. Unlike professional disciplinary matters in other professions in which egregious lapses in due process can be remedied by judicial review, church discipline cases will not be reviewed by the courts due to First Amendment constraints. The only due process accused clergy will get is that specified in the church disciplinary code.

Clergy in ECUSA should take note particularly of one proposal before General Convention (by canon lawyer Michael Rehill, linked at the end of the ACI article) which would reinsert the Constitutional privilege against self-incrimination into the disciplinary canons—a provision which the 2009 amendments to Title IV deleted. That deletion is expressly worrying because of this provision, which was also in the 2009 amendments as Canon IV.19.1 (emphasis added):

Members of the Clergy have voluntarily sought and accepted positions in the Church and have thereby given their consent to subject themselves to the Discipline of the Church. They may not claim in proceedings under this Title constitutional guarantees otherwise associated with secular court proceedings.

As the ACI article notes, the extraordinary over-reach of the new Title IV canons, in all the particulars which it details (and see also the links at the end), is particularly worrisome in light of (a) the charges filed against the TEC-9 under their provisions, (b) the recent proposal by the Fort Worth deputation to subject all new bishop candidates for confirmation to an examination for their conformity with the views being advanced by ECUSA’s attorneys in the civil courts, and (c) the timing of the charges now, on the eve of General Convention and more than a year after the affidavits in Quincy were signed, but just months after the Bishops filed their amicus brief in the Texas Supreme Court. All these indications point to disgruntled representatives of the faux diocese in the Fort Worth litigation as having instigated these baseless Title IV charges. The ACI is not shy in drawing that conclusion, just as I did in my earlier post, and as Bishop Dan Martins has surmised, in his own post on this debacle.

One other indicator, which I just noticed as I was writing this article, is another sure signpost to the kind of forces behind this Putsch: the Episcopal blogs on the left have been remarkably silent in covering the ramifications at stake, and instead voice only a “wait and see what comes out of this” attitude. There is at best a weak defense of the clergy’s First Amendment rights of free speech, which takes back seat to the (assumed) powers of the Disciplinary Board for Bishops. It is the same phenomenon one can observe on the national scene, in the mainstream media’s studious silence in the face of all the evidence accumulating in the affair I referred to in my title. The left does not want to deal with the evidence there, any more than it does here. In contrast, we at StandFirm have now devoted no less than five substantial articles to covering this donnybrook.

The ACI article concludes strongly, as follows:

It cannot be coincidence that on the same day—the last Friday before General Convention meets—notice was served about the Quincy complaint, notice was served about the Fort Worth complaint and the Fort Worth General Convention deputation circulated a letter to other deputies asking that bishops-elect be interrogated as to their interpretation of TEC polity before consents are given. The conclusion is inescapable that abuse of the Title IV process is being coordinated with the anomaly of General Convention consents to promote a rigid uniformity of opinion on controversial issues of polity. Those who adhere to the views expressed in one Texas amicus brief are to be welcomed; those who share the views of the other amicus brief are to be blacklisted. We appear to have reached the point where Messrs. White, Dykman, Dawley and Stevick—if they were alive today—would be banished from the church were they to testify truthfully that they believed what they wrote—and the point where the abuse of canonical disciplinary processes is thought to be an acceptable tactic to obtain political and secular legal objectives. Our hope for TEC and those at this General Convention is that they will resist this creeping totalitarianism, dismiss these frivolous complaints, reconsider the ill-advised Title IV revisions and start to restore some health and dignity to our canonical processes.

Be sure to take the time, as Kendall Harmon says, to read the whole thing.