November 25, 2006

Unqualified Accession

A recent story from The Living Church began with the following news:
On the eve of Nevada Bishop Katharine Jefferts Schori’s investiture as the 26th Presiding Bishop of The Episcopal Church, her chancellor, David Booth Beers, has written identical letters to the chancellors of two traditionalist dioceses demanding that they change language “that can be read as cutting against an ‘unqualified accession’ to the Constitution and Canons of the General Convention of The Episcopal Church.”
The two dioceses referred to are Fort Worth and Quincy. Two other dioceses in similar situations, Pittsburgh and San Joaquin, apparently did not receive letters. What these “problem dioceses” have in common is that they have removed provisions from their constitutions acceding to the constitution and canons of The Episcopal Church, a requirement the constitution has always imposed on new dioceses. The current wording of this requirement is as follows (taken from Article V, Section 1 of the church’s constitution):
After consent of the General Convention, when a certified copy of the duly adopted Constitution of the new Diocese, including an unqualified accession [emphasis added] to the Constitution and Canons of this Church, shall have been filed with the Secretary of the General Convention and approved by the Executive Council of this Church, such new Diocese shall thereupon be in union with the General Convention.
In contrast, and by way of example, the recently amended constitution of the Diocese of Pittsburgh reads as follows (Article I, Section 1):
The Church in the Diocese of Pittsburgh, being a constituent part of the Protestant Episcopal Church in the United States of America, accedes to, recognizes, and adopts the Constitution and Canons of that Church, and acknowledges its authority accordingly. In cases where the provisions of the Constitution and Canons of the Church in the Diocese of Pittsburgh speak to the contrary, or where resolutions of the Convention of said Diocese have determined the Constitution and Canons of the Protestant Episcopal Church in the United States of America, or resolutions of its General Convention, to be contrary to the historic Faith and Order of the one holy catholic and apostolic church, the local determination shall prevail.
Ironically, the Pittsburgh wording captures both the spirit of what the church’s constitution requires and illustrates that this particular diocese now accepts the constitution and canons with its fingers crossed behind its back.

The story from The Living Church invites two obvious questions: On what basis did the four dioceses think they could get away with what they did? and Why did The Episcopal Church take so long to object to the constitutional changes? The second question is the more perplexing, but I believe that I can offer some helpful thoughts on both.

How might a diocese rationalize a right to abrogate its accession to the constitution and canons of The Episcopal Church? There is little wiggle room here. The constitutional requirement of accession, unchanged in substance since 1785, is clearly intended to make the General Convention the supreme authority of the church. (One cannot prevent individuals from exercising a right of dissent based on their personal theological beliefs, of course, but individual opinion cannot be given a veto over institutional decisions. Dissenting individuals must take the consequences of exercising their conscience against duly constituted covenants, whether they be being overruled or being subject to disciplinary action. No one, on the other hand, can be held in The Episcopal Church against his or her will, so leaving is always an option.) It would make no sense to require unqualified accession of a diocese if, once admitted to the church, the diocese could renounce its accession, as, indeed, the four errant dioceses have now done. This being the case, advocates of the right to qualify accession must do so on narrowly legalistic grounds. Virtually the only argument available to them is that neither the constitution nor the canons of The Episcopal Church contain an explicit prohibition of such a move.

One suspects—and the Living Church story certainly implies—that the church’s apparent change in attitude on this matter is related to differences in disposition between Frank Griswold and Katharine Jefferts Schori, the previous and current Presiding Bishop, respectively. In the past, however, action against dioceses that have altered their constitutions may also have been inhibited by the view that abrogating accession, whether lawful or not, was harmless, in itself, until such time as a diocese used its abrogation as justification for some overt act contrary to the church’s constitution or canons. For whatever reason the church failed to react to these constitutional changes, the failure was, I believe, a serious mistake, both tactically and canonically. That the Diocese of Fort Worth was not challenged when it first changed its constitution in 1997 has only encouraged other traditionalist dioceses to make similar changes. I believe that the changes are themselves canonically prohibited and that the advocacy of them is an intrinsically schismatic and presentable offense.

Consider the nature of accession. To accede to is to agree to or consent to. The term has a strong connotation of subordinating one’s will to that of another, and it sometimes suggests that this is not done willingly (consider the common phrases “accede to the terms” or “accede to the demands”). This is clearly what is being communicated in the church’s constitution, namely, that, in all matters, it is the constitution and canons of The Episcopal Church that govern in cases where there might be conflict with the desires of an individual diocese. This is made especially clear in the current formulation of “unqualified accession,” although it can be argued that anything short of unqualified accession is not accession at all. Certainly, the weaselly wording in Pittsburgh’s present constitution would (and should) be unacceptable to the General Convention if presented in a proposed constitution for a new diocese.

Let us now suppose that a diocese has a constitution that accedes to the constitution and canons of The Episcopal Church, presumably the understanding of both the diocese and the General Convention when the diocese first became part of the church. Can the diocese remove or weaken its accession, on the basis that there is no explicit canonical prohibition against doing so? Surely not, and a detailed analysis of the constitution of the diocese is not needed to establish the fact. For such a change to be lawful, it would need to be permitted—or at least not prohibited—by the diocesan constitution. For this to be the case, the constitution would have had to have reserved for the diocese the right to make such a change, meaning that it did not make an unqualified accession to the church’s constitution and canons. But everyone agreed that it did, so our supposition that the change is allowed—a supposition that leads to a false conclusion—must itself be false.

If qualifying accession in a diocesan constitution is intrinsically unlawful, then the action of a diocese that claims to have done so is, in principle, null and void. Like any law, however, the logical constitutional restriction is meaningless unless there is some mechanism by which it can be enforced. If the diocesan convention has made an illegal change to the constitution, the diocesan bishop merely has to declare it invalid. In most cases, that will end the matter. The situation is troublesome in the more likely case that the bishop has supported, encouraged, or initiated the amendment process, however. In this case, the bishop could be presented and, eventually, deposed for (1) violating the diocesan constitution, an offense under Canon IV.1(f), and (2) for violating his or her ordination vows “to conform to the doctrine, discipline [emphasis added], and worship of the Episcopal Church” (BCP, p. 513), an offense under Canon IV.1(h). Evidence addressing intent would likely strengthen the latter cause of action, since the constitutional change was probably undertaken to facilitate some more radical assault on church polity, rather than for an abstract concern for diocesan independence.

Were a diocese actually to use the change it claims to have made to its constitution to circumvent the canon law of The Episcopal Church, the additional charge of violating directly the constitution or canons of the General Convention could be asserted under Canon IV.1(e).

Alas, removing a bishop of a diocese that has amended its constitution to weaken accession would not immediately remove the schismatic threat to the church posed by that diocese, since not only the bishop, but also a substantial portion of the diocesan leadership must have been complicit in the actions that resulted in the trial and conviction of the bishop and in the wider plan to subvert church polity. (The disciplining of priests who voted to change the diocesan constitution is a diocesan responsibility, unlike the disciplining of bishops, so that they are not so easily requited for their actions by their own diocese.) Deposing the bishop would be a necessary start toward restoring order to the diocese, however, and, although it might take years to accomplish the task, the revolt of such a diocese could almost certainly be put down, leaving the diocese in the hands of Episcopalians actually committed to the church’s doctrine, discipline, and worship.

In summary, I believe that amendments to diocesan constitutions to qualify their accession clauses are intrinsically unconstitutional and, even ignoring the transparent plans of the bishops of the Network of Anglican Communion Dioceses and Parishes to subvert the polity of The Episcopal Church, the bishops of the dioceses of Fort Worth, Quincy, Pittsburgh, and San Joaquin could be presented, found guilty, and deposed at any time for the constitutional changes they have effected alone. Given the conspiracy against Episcopal Church polity of which these bishops are major instigators, I believe that they should be.

POSTSCRIPT: The foregoing takes what I think is a strict-constructionist view of the church’s canon law. Other paths of argumentation are possible that are not necessarily incompatible with my own. The long-term problem of dealing with a rogue diocese is, I think, problematic, as it is unclear—to me, at least—what the church can do absent action by the General Convention. Also, a bishop could be removed using Canon IV.9, although this is controversial. Anyway, the interested reader should read the thoughts of Mark Harris (here and here) and of Father Jake. Particularly obsessive readers may also want to read two briefing papers prepared by Progressive Episcopalians of Pittsburgh in 2003, when the diocese first considered changing its constitution. The papers may be read here and here.

According to an ENS story, on June 14, 2007, the Executive Council of The Episcopal Church “passed Resolution NAC023, reminding dioceses that they are required to ‘accede’ to the Constitution and Canons, and declaring that any diocesan action that removes that accession from its constitution is ‘null and void.’” The dioceses of Fort Worth, Pittsburgh, San Joaquin, and Quincy were cited explicitly in the resolution as having made such changes. ENS later reported on reactions to the resolution.

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