815 can’t have it both ways

I’ve tried to stay quiet on the whole ECUSA-lawsuits-and-depositions meme lately. Frankly there are plenty of other blogs out there who follow all this with great commitment and high passion. I think the whole thing is a travesty, because it takes us away from what the church should be doing.

Anyway, the Anglican Curmudgeon has a thorough post detailing some of the problems with recent canonical and legal arguments that 815 has emitted lately. Suffice it to say, it boils down to this: you can’t have it both ways.

On the one hand, our Presiding Bishop’s staff maintains that “majority of the whole number” means “of those who happen to show up.” That’s in the case where it has to do with bishops voting to depose a bishop. This is contrary to the plain text of the canons, but that’s what 815 maintains as the real meaning of the text. Along with many others, I think this sets the bar too low — making it too easy to depose bishops. That should be an exceedingly rare and hard-to-do thing.

On the other hand, our Presiding Bishop’s staff maintains that “majority of the whole number” means “of everyone, even if they didn’t come” when it comes to congregations voting to leave ECUSA. How can the same words mean two different things? When it’s convenient. All this is designed to support a legal process that I think will not be helpful to anyone, ultimately.

Here’s my take on all this. We should be very firm in disciplining clergy who violate their ordination vows. Period. Once someone has violated them (as opposed to talking about it), we should precisely follow the canons and deal with the matter quickly and justly. This, by the way, should include people who disregard the worship of the church, not just those who reject our polity. To name one example, “open communion” is expressly forbidden by General Convention and canon. Yet it goes on undisciplined, all the time. (I’m conflicted on this one, but until the canons are changed, I must follow them.)

I think we should be generous when it comes to things. If the vast majority of a congregation votes to leave, I’d like to see us have the option to work out a fair sale price for a building or other tangible assets. They are not entitled to take away these assets for free, but neither should we sue people into oblivion over property.

Unfortunately, people have gotten themselves into nasty rhetorical, political, and legal battles. There is rarely a spirit of charity present in these conversations, from what I can see. May I suggest two positive examples?

When Bishop Jeffrey Steenson was no longer able to serve in ECUSA in good conscience, he left the church honorably and nobly. You can read his eloquent statement to the House of Bishops here. The strategy followed by Bishop Iker and others is not up to this standard. Those of us who have taken ordination vows must not violate them by seeking to destroy the church to which we have pledged our obedience. Rather, it is for us to leave and continue our work where we are not troubled by our conscience.

Here in Rhode Island, one of our congregations felt it necessary to leave ECUSA several years ago. The Bishop & Standing Committee were able to work out an equitable sale price so that the congregation could stay in their building. The priest renounced, I believe, rather than force a deposition. To this day, relations between the departed congregation and the rest of the Diocese are good, as far as I know. At no point was the mood combative. Rather, all parties began with the presumption of charity and proceeded accordingly.

I am particularly disappointed by what seems to be the hypocrisy noted by the Anglican Curmudgeon. Sure, some of the parties involved might have behaved badly. But those in highest authority must always take the high road. Or should I say, the narrow road. I pray that all parties (secessionists, conservatives, liberals, 815, and the rest) will begin to approach all these conversations with a spirit of charity. It’s not too late to begin with a clean slate. Isn’t that what Christians say? Maybe we should practice what we preach.

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21 Responses

  1. i can’t for the life of me tell what you’re talking about. there is no canon about congregations departing, there is no “majority of the whole number” specified in such a non-existent canon. i have no clue what this second usage is that you’re talking about. you seem to be talking about the details of the wording of a canon that doesn’t even exist.

    i am already on the record saying that the summary process is useless and a bad idea. present people, and try them. (of course, that’s a *smaller* number necessary to depose.)

  2. Scott Gunn says:

    Thomas,

    You have to make your way over to the Anglican Curmudgeon for the language. You’re right, in that there is no canon about departing congregations. Rather, the same phrase appears in the Virginia 57-9 statute. My point is that in one place, we favor the plain meaning of the text and in another place we don’t. If there’s a contextual difference, I’d like to understand it.

    So, anyway, have a look at the referenced post. I’d be interested to hear what you think after that.

    SG

  3. in law, meaning is determined by context, both textual and historical.

    it is not at all unusual to have the exact same words mean different things in different places because of those varying contexts, which are often the results of arbitrary historical fact.

    i know that our canon has been used many times–not just recently–and that in every case it has been interpreted as it has been now. a sudden shift in interpretation–which is what the conservatives are asking for–would violate the legislative power of the GC, which is entitled to assume that canons will go on being interpreted as they had been in the past. it is very likely that if there were an uncontroversial deposition (as the previous ones were) but which got scuttled because of the absence of votes from retired bishops (which is the point here), we would have seen a speedy amendment.

    the virginia statute lives in an entirely different context.

    one key difference is that the one statute refers to “majority of the whole number”, and the canon refers to “majority of the whole number of Bishops entitled to vote”. note that this phrase is mostly omitted by the AC, but it shifts the context considerably.

    the statute does *not* have any qualifier like “entitled to vote”. and i would point out that, under the rules of the house of bishops, absent bishops are not entitled to vote.

    the qualifier is as if the canon said “majority of the whole number of Bishops taller than 5 foot 10 inches”; you can’t strip off the qualifier and pretend it was never there.

    now this is certainly not the only interpretation of the qualifier which could be given, but it *is* the one which has been historically given, and law, to repeat, derives meaning from context.

  4. Scott Gunn says:

    Thomas, OK I’ll agree that the language of the canon has been interpreted that way in the past. It seems odd to me, but there it is. I’m still troubled by the way things were done both with Pittsburgh and San Joaquin, but that’s another story.

    It’s also worth noting, by the way, that there are places in the canons where it says “of those present” when that is the intent. I still don’t get why these words have been interpreted the way we’ve read them, but again I’m just a canon dilettante.

    Oh, well. I’ve officially lost interest in this topic for now.

    SG

  5. Phil Snyder says:

    Scott ,

    ISTM that we have lost a common faith and common discipline. The HoB no longer cares what you believe, unless you act on a “conservative” belief. The only discipline left is power. To quote Voldemort: “There is not good or evil. There is only power….” The HoB had the power and the will to depose Duncan. They do not have the will to depose or discipline anyone on the progressive side for actions contrary to either the C&C (such as allowing or participating in Communion without Baptism) or the expressed will of the Church (as stated in either resolutions of General Convention or Lambeth or the ACC or the Primates’ meetings). While resolutions do not have enforecement measures, they do have moral authority and should be followed – particularly when the unity of the Church is at stake.

    Thank you for standing up for the rule of law rather than the rule of power.

    YBIC,
    Phil Snyder

  6. Jon says:

    Has anyone actually tried to bring charges based on folks practicing communion without baptism? It seems a little bizarre to complain about a practice being tolerated when not even those who object to the practice can be bothered to bring charges in conformity with the disciplinary Title.

    Also, we haven’t left the rule of law yet. Members of the HoB challenged the chair’s ruling on the meaning of the canons used and the chair’s ruling was sustained. While there are certainly plausible arguments for why an alternative reading ought to be preferred, insisting that those alternate readings are the correct readings is like holding that Supreme Court is mistaken when it hands down a ruling. In both cases, while there may be more plausible alternate readings, once the highest authority that can rule on the matter has ruled it is inappropriate to continue to insist on an alternative reading.

    Jon

  7. Scott Gunn says:

    OK, I can’t resist this one, Jon.

    “once the highest authority that can rule on the matter has ruled it is inappropriate to continue to insist on an alternative reading”

    That is of course a VERY dangerous position. Women’s ordination took activism. The repeal of slavery took activism. Civil rights takes activism. Justice for LGBT persons takes activism. For those seeking justice, resistance to the “settled” rulings of those in position of authority is often demanded. We can argue over the merits of all this, but I find it shocking to suggest that people should say nothing once it’s been “ruled.”

    In my case, I’m simply raising questions of justice. Surely there’s no problem with that.

    Pax,
    Scott

  8. Phil Snyder says:

    Scott,

    I will agree that fighting injustice requires working to change perceived norms.

    However, acting on your idea of “justice” over and against the rule of law is a very dicey situation.

    For example, there are several thousand people who believe that justice requires that their congregation and the property that the congregation has title to should leave TECUSA without paying TECUSA any money. This is because they are the ones who are consistent in following the teaching of the Church and they and their forebearers in the faith are the ones who paid for the property and buildings. TECUSA had very little to do with it. So, should they act for their ideas of Justice or should they follow the rule of law?

    In the current situation with parishes and dioceses leaving TECUSA, we see the whirlwind being reaped where the progressives sowed the wind by their activism. The best way to change society is not, necessarily, action but reasoned debate and argument. MLK persuaded more people by his arguments that the nation was not living up to its own ideals than the black panthers ever persuaded by their angry activism.

    I know that MLK also engaged in civil disobedience, but he willingly paid the prices. If TEC wishes to say it is acting in civil disobedience, then it should withdraw (for a time) from the Anglican Communion.

    YBIC,
    Phil Snyder

  9. Keith Toepfer says:

    Rev. Gunn,

    In my humble opinion, in writing “those in highest authority must always take the high road. Or should I say, the narrow road,” you uphold a principle of leadership that applies to all who lead, in the church, in the military, in business, in virtually any context. Despite the fact that you and I most probably do not agree on where the Episcopal Church is headed, I applaud you for the moral integrity of your stance. The recent multiple acts by the leadership of the Episcopal church, attempting to “have it both ways,” as you so aptly stated it, is the principal reason I am leaving the Episcopal Church.

    Keith Toepfer
    LCDR, USN (ret)

  10. Jon says:

    Concider the Supreme Court. When it rules what responses make sense and which do not? Nothing can change that particular ruling for those particular parties. In the future, however, the Court can rule differently on a new but similar case. Congress or the legislature can also change the laws to try to get the Court to rule differently.

    The same avenues are open within the Church, and in fact IIRC the retired bishops may finally be able to give up their vote next GC. The proposed Title IV revisions also eliminate the question of whether one can depose a bishop who hasn’t been inhibited, again IIRC. Either way Bishop Duncan has been deposed, and bitching about it is likely to only increase distrust in TEC.

    Jon

  11. Phil Snyder says:

    Jon,

    The distrust in TEC is increased by TEC’s actions and disregard for the rule of law in favor of the rule of power.

    Bishop Duncan is deposed within TEC, but a large number of provinces and bishops still consider him to be a Bishop in good standing within the Anglican Communion. I suspect that he would be welcome to celebrate, preach, baptize, confirm, or ordain by over half of the Bishops in the Anglican Communion.

    If TEC wants to increase trust, then it needs to be trustworthy and not speak out of both sides of its mouth.

    YBIC,
    Phil Snyder

  12. Phil, one of those expressed positions of the church is that gay and lesbian people are entitled to full equal civil rights under law. i take it, then, that you will join me in pushing for equal civil marriage laws?

  13. A. S. Haley says:

    Br. Bushnell, when you say:

    i know that our canon has been used many times–not just recently–and that in every case it has been interpreted as it has been now. a sudden shift in interpretation–which is what the conservatives are asking for–would violate the legislative power of the GC, which is entitled to assume that canons will go on being interpreted as they had been in the past.

    I regret I must conclude that you are unaware of how the Canon has actually been used in the past. The depositions of Bishop Davies in 1993 and of Bishop Larrea in 2004 were actually the first instances in which a “majority of the whole number of Bishops entitled to vote” did not consent to deposition of a colleague under the Canon, and the point was not even raised at the time, so they are very poor precedent for repeating the error still more times.

    The “reading” of the Canon followed by the PB in the depositions of Bishops Cox, Schofield and now Duncan—and which you evidently support—is patently absurd in light of the history of the Canon (which I have detailed in three posts over at my site, if you care to read them by following the Guide that is there).

    Under the current membership of the HoB, your view would authorize a deposition to take place with the affirmative vote of just 38 of the entire number of 300 bishops in the House (a majority of a quorum, which counts only active bishops)—a number that is less than the two-thirds vote it takes to approve the deposition of a Bishop for holding a doctrine that is contrary to that of this Church under Canon IV.5.30 (e).

    So while only 38 bishops (under your reading) may depose a bishop for “openly renouncing the doctrine . . . of this Church”, it requires a minimum of 50 bishops (assuming no retired bishops present at all, or else the number goes higher still) to depose a bishop for “holding and teaching doctrine contrary to that held by this Church”—a metaphysically absurd result that is as unnecessary as it is unwise, if one will simply look at the Canon’s history.

    As in so many instances, Justice Holmes has the appropriate aphorism: “On this point, a page of history is worth a volume of logic.”

  14. Phil Snyder says:

    Thomas

    I support the right of gay persons to be married. If they can find an eligible person to marry, that is.

    Marriage, as defined by Western Society (Israel after the exile, Greece, Rome, England) for the past 2000 years has been one man, one woman. So, a gay man can marry any woman he wants to and a gay woman can marry any man she wants to.

    Now, if you want to change the definition of marriage, then that is something that the people of the state (state or federal government) should do, isn’t it? Should something as fundamental to our society as what is marriage be redefinied by the fiat of five people – no matter how intelligent they are?

    Now, should there be something marriage-like for homosexual couples (why stop at 2?)? I believe so, I believe that there should be a legal state where the legal aspects of marriage (power of attorney, inheritance without tax, medical rights, etc.) are presumed. But I balk at calling it “marriage.”

    YBIC,
    Phil Snyder

  15. Jon says:

    Phil, the bishops have held to the rule of law in the deposition of Bishop Duncan, and as far as I have seen in every other action they have taken. That was my point in pointing to the Sumpreme Court. When those with the authority to rule on the meaning of a law give their ruling it is not for those who are not in authority to insist that the authorities have violated the laws.

    Your incorrect insistance that the bishops have chosen the rule of power over the rule of law is part of the problem, as was demonstrated at Lambeth when TEC bishops found themselves having to reassure bishops from around the communion that we still say the creeds every Sunday.

    Jon

  16. Phil Snyder says:

    Jon,

    The bishops overturned the plain meaning of the Canon when they deposed Duncan. Here are the relevant passages (emphasis mine in all passages):

    The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon.

    The Presiding Bishop, or the presiding officer, shall forthwith
    give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false or utilizes the provisions of Canon
    IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to Deposition.

    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, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

    First, Bishop Duncan was not inhibited. So, he could not receive notice of certification and inhibition. Second, the vote presupposes that the bishop be inhibited. Duncan was not inhibited. Third the phrase “majority of the whole number” is a specific term and “whole number of bishops entitled to vote” is defined in Article I section 2.

    If the HoB had acted differently in the past, that does not make this action OK. In the past, the depositions were basically without question. But with Schofield, Cox, and Duncan, the depositions were questioned and, especially with Duncan, objections were made that the HoB was not following the rules. They disagreed, but could not point to anything in the rules that said they were following the rules.

    This is like a company making an accounting mistake because it didn’t fully read the rules, but the results in those earlier cases were not material to the financial health of the company. An auditor would note the desrepancy, but also state that it did not affect the company’s financial state. Now, however, the company (having been advised of the rules) desires to use the same practices and it does have a material affect on the financial condition of the company. In this case, the auditor would specifically state that the company’s results do not reflect reality.

    Making up the rules as you go or interpreting the rules to suit your agenda is not the rule of law. It is the rule of power.

    YBIC,
    Phil Snyder

  17. Jon says:

    So you are a greater authority than the HoB, such that you can demand that they hold to your understanding of the canons? Where does it say this in the canons?

    The parliamentarian gave his ruling on the meaning of those canons and the house sustained that ruling. Even if your reading of the canons is more plausible, it isn’t a violation of the canons for the house to hold to a different reading. Again, concider how this would look if we were disagreeing with the Supreme Court’s rulings in a similar fashion. When those with authority to rule on the meaning of a law or canon give their ruling it is foolish to insist that they have abandoned the rule of law even if their reading seems arbitrary or foolish. The law more or less means whatever those in authority say it means until either the law is changed or those in authority change their mind about the meaning of the law.

    Jon

  18. Phil Snyder says:

    As another point in this discussion, Title IV.9 was intended to be employed for bishops who, like Clarence Pope, joined another Christian church, like Rome or the United Methodists. It was never intended to be used against sitting bishops who, just the month before, were at Lambeth with most of the Bishops of the Anglican Communion (thus showing his communion with ABC).

    The proper tract to take would have been to use Title IV.5 (Of the Court for the Trial of a Bishop). This way, Duncan gets to mount a defense. IV.9 does not require a trial because it is assumed that the Bishop in question would not show up for nor mount a defense at a trial. IV.9 is designed to recognize what has already occurred, not what might occur.

    I admit that, given the composition of the HoB today, Duncan would be found guilty by a trial court (that’s the result they wanted), but at least we would have abided by the rule of law.

    YBIC,
    Phil Snyder

  19. Phil Snyder says:

    Jon,

    I am glad that you like puppies and believe that homosexual sex is sinful in all cases.

    At least that is my interpretation of what you said.
    (/sarcasm)

    The problem is when “interpretation” violates the plain meaning of the text. If the Supreme Court “interpreted” the fifth amendment to require each person to testify against him or her self, wouldn’t you agree that the supreme court had errored badly and that the ruling should be considered null and void?

    I agree that there are different ways to interpret canon and scripture and law. However, interpretation should never contradict the plain meaning of the text being interpreted.

    In IV.9, the bar is very high because it is supposed to be self-evident that the bishop in question has left the Episcopal Church. It is not self-evident in Duncan’s case. I believe it is evident that he intended to leave TECUSA, but he had not yet done so when the vote was made to depose him.

    YBIC,
    Phil Snyder

  20. Jon says:

    No, I would not agree that the judgement should be considered null and void even if it disagreed with what I thought to be the plain meaning of the law. To insist that the judgement was null and void seems to me like it would be embracing anarchy. I might strive to get the ruling overturned in a later case or mooted by changes in the law or Constitution, but I would hold that the decision stands until it is overturned. Roe v Wade might be a better example of what I’m talking about than your hypothetical and profoundly unlikely example. At least it might be a better parallel in terms of its relationship with previous law (ex. on a right to privacy or on states’ rights) for what the bishops did in deposing Bishop Duncan. Note, for example, that IV.9 assumes that inhibition won’t be a problem, and so never specifies what is to be done if the “accused” isn’t inhibited before the matter comes before the HoB as IV.9.1 suggests it must.

    Jon

  21. Phil Snyder says:

    Jon – if a majority of bishops (or a majority of judges) can simply interpret the law to mean whatever they want it to mean, then we do not have the rule of law. We have the rule of men. It is that simple. Either the law governs men or men overturn the law based solely on political power and whim and expediency. Now, if the Bishops had first changed the canon to read that inhibition is not required or that a majority of the bishops present at the meeting would be sufficient for deposition, that is not ignoring the law, it is changing it and applying it.

    YBIC,
    Phil Snyder

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