June 27, 2011

Analysis of the Report from the Standing Commission on Constitution and Canons

It is good that the Executive Council of The Episcopal Church reversed its previous position and released the February 15, 2011, report from the Standing Commission on Constitution and Canons (SCCC). That untitled report was characterized in an Episcopal News Service story as “outlining the changes that would be needed if the General Convention decided to sign on to the covenant.(See “Report Released.”)

Now that the report has been made public, those calling for its release have enjoyed their victory, and Executive Council has celebrated its new-found transparency, it is incumbent on those who wanted to see the SCCC report to try to make sense of it. In what follows, I will try to do just that.

General Comments

At the outset, it should be said that the SCCC report does not claim to represent a legal evaluation of the Covenant as a whole. The SCCC states in its opening paragraph, “We have been asked to focus on Section 4 of the draft Covenant.” This stands in contrast to the recently released report prepared for the Anglican Church of Canada, which, although concentrating on Section 4 and its consequences for the Canadian church, deals with other issues as well, such as the imprecision of the terms used in the Covenant. On the other hand, the SCCC suggests, as almost no one else has, that the Introduction, which is declared not to be part of the Covenant, potentially has significant implications.

One cannot read the SCCC report without being struck by its reluctance to make categorical statements. The word “may” (as in “this may be seen” or “it may be of concern”) occurs frequently in the report, suggesting either that not everyone on the SCCC could agree on the implications of certain provisions of the Covenant or that the Covenant is so vague that a definitive interpretation is simply impossible.

The SCCC report refrains from offering value judgements. For example, the report declares that
adoption of the current draft Anglican Covenant has the potential to change the constitutional and canonical framework of TEC, particularly with respect to the autonomy of our Church, and the constitutional authority of our General Convention, bishops and dioceses.
It does not suggest whether such changes would be a good or a bad thing, though I suspect that the authors of the report anticipated that most Episcopalian readers would be distressed by this conclusion.

The main message of the report is that the commitments embedded in the Covenant would compromise the autonomy of The Episcopal Church and would require substantial changes to the church’s constitution and canons in order to assure that those commitments could be kept. Like the Canadian report, however, the Episcopal Church report does not suggest specific changes to accommodate Covenant acceptance.

Because the report refers to provisions in the Covenant without quoting them in full, it is helpful to have a copy of the Covenant at hand when reading the SCCC report.

The Report in Detail

The report is divided into five sections, which are unnumbered:
  1. Background, which might better have been titled Introduction
  2. Provisions of the Introduction and Preamble; Potential Concerns for Constitutional Autonomy
  3. Particular Issues in Section 4
  4. The Constitution and Canons of TEC, which, in fact, deals only with the church’s constitution
  5. Applicable Canonical Provisions
Brackground. This section explains the charge to the Commission and offers the conclusion that adoption of the Covenant could require significant changes in church polity.

Provisions of the Introduction and Preamble; Potential Concerns for Constitutional Autonomy. Given that the SCCC was asked to evaluate the implications of Section 4 of the Covenant, it is surprising that the first section of substance in its report concerns the Preamble and the Introduction to the Anglican Covenant. In the previous section, the SCCC makes this statement:
A close reading of the Covenant, and especially Section 4.4.1, makes it clear that the text of the Preamble and of the Introduction to the Covenant must be considered as part of the Covenant itself, despite some confusing language to the contrary.
That “confusing language” that is Section 4.4.1 states
The Covenant consists of the text set out in this document in the Preamble, Sections One to Four and the Declaration. The Introduction to the Covenant Text, which shall always be annexed to the Covenant text, is not part of the Covenant, but shall be accorded authority in understanding the purpose of the Covenant.
The recognition that the Introduction might have significant bearing on the meaning of the Covenant is perhaps the greatest contribution of the SCCC to the Covenant debate. That Introduction has received little attention, and what little it has has emphasized its incoherence and dubious theology (See my post “Clatworthy Trashes Covenant Introduction.”)

The report accuses the framers of the Covenant of conflating communion in Jesus Christ with communion among Anglican Communion churches:
The implication may be that the continuation of our communion in Jesus Christ requires accession to the particular ordering of the church described in the draft Covenant, or which may be described from time to time by various elements of the Anglican Communion (e.g., “Instruments of Communion”).
The SCCC is too polite to suggest that the confusion in the Introduction is an intentional effort to shame churches into adopting the Covenant, but I will certainly do so. The report suggests that elevating the importance of the Anglican Communion puts its concerns on a higher plane than the governing documents of particular churches. It expresses the concern of the Commission rather delicately in these words:
The thrust of the Covenant, that, under certain circumstances, new expression by a constituent member of its understanding of faith and order may be subject to the judgment (and assent) of other members of the Communion, may challenge the authority of the General Convention, under the provisions of our Constitution and Canons, in identifying and articulating new understandings of our faith and doctrine.
Here is one of those occurrences of “may,” meaning, of course, “will, as sure as the sun will rise tomorrow.”

The last paragraph in this section concerns the Covenant’s Preamble. There is a typographical error in this paragraph; there should be a closing double quotation mark at the end of the first sentence. The SCCC points out here the tension inherent between pursuing mission “in our different contexts” while we “maintain the unity of the Spirit.” This, of course, is the essence of what the Covenant is about, namely, changing the current balance between provincial autonomy and enforced uniformity in favor of the latter.

Not surprisingly, given the charge to the SCCC, Particular Issues in Section 4 is the longest section of the report. It begins with a rather tedious paragraph about the differing opinions held in the Communion about the status of the Windsor Report and the relative importance of its recommendations. The Commission should have simply declared the obvious—the Windsor Report is merely an un-adopted report with no special authority, and its recommendation of an Anglican Covenant is the only recommendation left that has not failed utterly. Tobias Haller has the right idea here—we should reject explicitly Lambeth I.10 and the Windsor Report as authoritative statements for the Communion. (See “How to Approach the Covenant.”)

The report goes on to point out, albeit in its own tentative, Anglican way, the disingenuousness of the Covenant’s treatment of provincial autonomy:
Some may view as contradictory the charge of the Covenant for each covenanting church to take the steps to implement the stated principles and procedures and the Covenant’s claim that it does not intentionally alter “any provision of the Constitution and Canons of any church of the Communion, or to limit its autonomy of governance.”
The Covenant, indeed, does not change the polity of any church directly, but adopting the Covenant will necessarily require changes in the governance of The Episcopal Church and, likely, all other churches of the Communion. (“Some,” in the above quotation, means “every literate person with half a brain.”) The report declares
If the adoption of a Covenant creates a limited governance authority in the Instruments, our Constitution would need to be amended to acknowledge accession to that authority.
Surely the Covenant does create such an authority, and this is the basis of observations about our constitution and canons that occur later in the report.

The report includes this garbled sentence:
It is necessary, before embracing any Communion-wide structure, to resolve the issue of how being in the Communion itself informs or changes our Church’s ability to receive the doctrine and practice of the Christian faith?
I think the question mark in this sentence was intended to be a period. Without analyzing the remainder of this section in detail, it is fair to say that the SCCC sees the Covenent as doing what it explicitly states it is not doing, namely changing the polity of constituent churches and limiting their ability to “innovate.” That, after all, is the purpose of the Covenant, all the Anglican fudge frosting notwithstanding.

Like the Canadian report, the SCCC document finds ambiguity and unfairness (such as the lack of ability to appeal decisions of the Communion) in Section 4. The question (or statement) cited above is answered (or underlined) clearly in this sentence:
Accordingly, the constitutional autonomy of the Episcopal Church in its future articulation of doctrine or practice could be compromised by this provision [Section 4.2.4].
This section of the report concludes with this chilling paragraph:
Section 4.2 would require substantial Constitutional and canonical action on the part of the Episcopal Church. It would purport to require the Episcopal Church to put into place “mechanisms, agencies, or institutions,” necessary to assure the compliance with the Covenant of all levels of the Church and respective dioceses. It further implies an expectation that the Constitution and Canons of the Episcopal Church be amended to empower the Presiding Bishop to become the Anglican Communion de facto compliance officer for the Episcopal Church, which would clearly exceed her present constitutional and canonical authority.
This realization is the analogy of what was concluded by the Governance Working Group in the Canadian report. Neither The Episcopal Church nor the Anglican Church of Canada is governed exclusively from the top; although their respective polities include central decision-making bodies, authority is dispersed. If each church in the Communion must avoid giving offense to other churches and assure compliance with decisions made by the Communion as a whole, then the behavior of all decision-making units of each church—dioceses, for example—must be tightly constrained. This is a problem for any church not governed in an authoritarian manner; it is a particularly difficult problem for The Episcopal Church.

The next section of the SCCC report is The Constitution and Canons of TEC, which, as noted earlier, does not address church canons at all. The Anglican Communion is mentioned only once in the Episcopal Church constitution, and that, as the report observes, is in the Preamble. That mention neither restricts the operation of the church nor grants any power over the church to the Anglican Communion. (See my post “A Preamble Proposal” from a year ago.)

After dispensing with the somewhat meaningless reference to the Anglican Communion in the Preamble, the SCCC cites five articles of the constitution that do not, but, under the Covenant, presumably should, include some provision for allowing Communion influence over decision making within The Episcopal Church: Articles V, VIII, IX, X, and XII. Article X, for example, treats the Book of Common Prayer and revisions thereof. Clearly, prayer book revision could run afoul of decisions made by the Anglican Communion as a body or could place the church in a position where another Anglican church could “raise a question” about a prayer book change. (Imagine a change to the marriage liturgy that allows for both principals to be of the same sex, for example.) The report neither explains the logic behind the need to change these articles nor suggests how they might be changed to accommodate compliance with the Covenant. That the Commission believes that nearly half of the articles in our most basic governing document would need to be modified should the church adopt the Covenant should give General Convention deputies pause, however.

The final section of the report—interestingly, the report includes no section of conclusions—is titled Applicable Canonical Provisions. As it happens, the Anglican Communion or other Anglican bodies are seldom mentioned in our canons. What mentions there are involve designating representatives to Anglican bodies (for example, to the Anglican Consultative Council in Canon 4.2 of Title I), territorial issues (for example, Canon 11.4 of Title I on non-overlapping episcopal jurisdictions), and competence of clergy coming from other churches (Canon 10.3 of Title III regarding examining candidates’ knowledge of things Anglican).

This section takes note of nearly every Anglican reference in our canons, though it misses the reference to the Standing Commission on Anglican and International Peace with Justice Concerns in Canon 1.2 of Title I and the aforementioned Anglican references of Title III’s Canon 10.3.

In the 13 paragraphs of the report, the SCCC mostly highlights parts of canons lacking any provision for consent or approval by the Communion. These observations are not justified in the report, and no means to “correct” them are proposed. For example, the report notes
Title I, Canons 9.2 and 10, describe the process for approving new dioceses, with no accession to or approval by the Anglican Communion.
Some explanation would be helpful here. Our canons generally do not allow overlapping jurisdictions with churches with which we are in communion, so it is not clear to me why any approval process by the Communion is necessary in these canons. Also, since a new diocese must declare unqualified accession to the constitution and canons of The Episcopal Church, changing the constitution and canons of the church to conform to the Covenant would seem to be all that is necessary here. The Commission should have been more helpful.

Of course, this raises the question about the meaning of communion, impaired communion, and so forth. These are issues that require additional examination. Although The Episcopal Church has not declared that it is not in communion with any other Anglican church, the analogous claim cannot be made of other church relative to ours. What do our canons mean when “some Church in communion with this Church” refers to a church of the Communion that claims not to be in communion with us? How do things work if we do not adopt the Covenant or if we adopt it and are sanctioned by “relational consequences”?

It seems unnecessary to remark on all the canons that the SCCC believes might need to be modified, though I do want to say something about Canon 2.4 of Title I regarding the role of the Presiding Bishop. About this, the report says the following:
In Title I, Canon 2.4, the role of the Presiding Bishop as chief pastor and primate is described, with no express duty or authority regarding our participation in the Anglican Communion.
I believe we must tread very carefully here. We can require the Presiding Bishop to participate in the Communion, but we cannot assure that the Communion will always permit this. In particular, we do not want to grant the Presiding Bishop to make decisions binding The Episcopal Church and encroaching on the proper powers of the General Convention. It is not clear to me that, as the SCCC asserts, the Presiding Bishop must “become the Anglican Communion de facto compliance officer for the Episcopal Church.”

Final Thoughts

The SCCC report is certainly helpful and should make it clear to all that, should we adopt the Covenant with integrity, our polity must be forever changed. I believe that the required changes would not be for the better. One could have wished that the Commission would have been clearer about why certain provisions of our governing documents need to be changed and just what those changes might look like. If we are considering seriously adoption of the Covenant, we need to discuss specific changes in our governance.

There are other related topics not treated in the SCCC report. One could argue that these topics were beyond its charge, but they do need to be considered.

What effect would Covenant adoption have on property litigation? The church has been able to argue that The Episcopal Church is beholden to no authority above the General Convention and that pronouncements from the Anglican Communion have no relevance to property litigation. Under the Covenant, it is not clear that we can continue to assert that position, particularly given the authority some attribute to the Windsor Report.

The SCCC report does not suggest what the consequences might be of rejecting the Covenant. The Canadian report opined that the consequences would be few and minor. If that is so, one could argue that, given the consequence of Covenant adoption, the conservative path would be to reject the Covenant outright. (This is certainly my preference.)

Finally, the report failed to consider facts on the ground that could cause problems for The Episcopal Church as soon as the Covenant is adopted. For example, we now have two active, un-closeted homosexual partnered bishops in the church. Knowing that consecrating such persons is anathema to many, perhaps even most, of the churches in the Communion, would the church need to depose Gene Robinson and Mary Glasspool as part of the Covenant-adoption process? I would like to know; they would like to know.

Despite the limitations of the SCCC report, its content only adds to the growing list of reasons not to adopt the Anglican Covenant. The changes the Covenant would effect in The Episcopal Church do not weigh favorably on Covenant adoption.

My view of the Covenant, of course, is well known. Let me simply close by saying that I wore my Integrity button to church yesterday. It well articulates what our church’s position should be going forward.


No turning back!

5 comments:

  1. In outright rejection, we would be bedfellows of GAFCON, who I believe has rejected the Covenant outright. Might I propose a more subtle strategy: at GC 2012, form another committee to study and consider the views of other provinces and to report its findings to GC 2015, along with its recommendations or concerns.

    Rather than precipitously adopt or reject the Covenant, hold off, be patient, get a feel for the entire Anglican Communion's attitudes. Is there a consensus on either side, those seeking to expel us and the Canadians or those opposed, that perhaps an amended Covenant, or a rewritten one, or none, would be preferable to the current edition? If the conservatives reject the Covenant because Section 4 contains no provisions for hauling us heretics to the guillotines in ox-carts, and our moderate and progressive friends reject the Covenant for its ambiguities and wholesale changes in polity, why not watch and wait. After all, we are the objects of the whole exercise in the first place, we don't need to lead, do we?

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  2. In truth, there is little actual enthusiasm for the Covenant. (Perhaps I’ve missed all the glowing and sincere defenses of the it on the Web. Perhaps Pfalz prophet can enlighten me.) There is little evidence that the Covenant will achieve its stated goal of effective unity, and there is a good deal of evidence that it will kill a generous Anglicanism for good.

    GAFCON is opposed to the Covenant for different reasons than I am. If TEC rejects the Covenant, we will be in the same category only in that each of us will have voted our conscience.

    The Achilles’ heel of Anglicanism is niceness. We would rather shoot ourselves in the foot—pardon the strangely mixed metaphor—than be seen as not playing the game. I submit that churches will (and have) signed on to the Covenant out of a sense of obligation, not conviction.

    I see the Communion as being a pack of ecclesiastical lemmings heading for the cliff. If no one stops and yells that it’s time to stop and think, all the lemmings will end up dead on the river bank.

    Delaying a decision by TEC is just slowing down and watching fellow lemmings continue their headlong race for the precipice.

    In short, we do need to lead. No one else is doing it. We can avert tragedy or we can stand by and watch it happen. If TEC rejects the Covenant, who needs it, since its real reason is to punish TEC?

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  3. I have had the chance to read the report finally, and my take is that when you get through all, the key to interpretation is the subjunctive mood.

    1. No alteration of the present Constitution and Canons of the Episcopal Church would be required to allow the Episcopal Church to approve the Anglican Covenant.

    2. If in the future some practice of the Episcopal Church were to be referred to the Section IV process, and if the result of that process were to be that the Episcopal Church should change its behavior in some way in order to remain in good standing in reference to one or more of the Anglican Communion's instruments, then the Episcopal Church might want or need to alter its Constitution and/or Canons in reference to that "behavior" to remain in that good standing.

    There is no suggestion in the canon that any force other than persuasion and the possibility of a withdrawal of relationship could be used to direct action of the Constitutional bodies of the Episcopal Church--and of course those "forces" are already available, Anglican Covenant or no.


    All the rest is, it seems to me, just pretty much speculation.

    Bruce Robison

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  4. We could, of course, simply adopt the Covenant and take what comes. There are, I think, many who would counsel this. I do think it would be unwise to pursue this strategy without deciding, in advance, whether our church would respond to “questions raised” by the Communion by trying sincerely to be compliant or by refusing to back down.

    The SCCC report may be seen as somewhat alarmist, but I think it begins with different assumptions about TEC intentions. The SCCC report assumes that the church is committed to being a “good citizen” of the Communion under the Covenant (a quite different status from the church’s current one), with the intention not only to be compliant with Communion requests but also to make a conscientious attempt to avoid giving offense in the first place.

    Given our church’s history and makeup, I find neither approach acceptable.

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  5. Lionel,

    I think we are in agreement. One might support the Covenant--and this is more or less where I am--in the perhaps naive hope that deeper Communion relationships will begin to reshape some of the values and directions of the Episcopal Church. One might support the Covenant in the--again, perhaps naive--hope that deeper Communion relationships will begin to reshape some of the values and directions of the wider Anglican Communion. One might support the Covenant in the belief that it would provide a structural rationale for continued Episcopal Church participation in the Anglican Communion while at the same time proving "toothless" in any effort to work transformation in either direction. One might support the Covenant because one would rather be kicked out of something than be asked to leave. Etc. One might oppose the Covenant on essentially any of the same grounds.

    Bruce Robison

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