December 14, 2011

Changes Needed in the Constitution and Canons of The Episcopal Church

Having both participated in and observed the power struggles that have taken place in The Episcopal Church in recent years, I have often wished that the constitution and canons of the church were different than they are. I have long wanted to offer a comprehensive list of desirable changes to our church’s canon law, along with scholarly discussion justifying the need for change and the benefits to be gained thereby.

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Somehow, my project has never really gotten off the ground, and I have even forgotten some of my brilliant proposals for canonical renewal. A General Convention is fast approaching, however, and a provocative hatchet job now may be more interesting—perhaps even useful—than a scholarly essay at some indeterminate future time.

I therefore will offer some suggested changes, along with at least a brief case for each one. I invite readers to offer their thoughts on my suggestions or to propose their own changes to the Episcopal Church constitution and canons.

Revise Constitution Preamble

I was speechless when, in September 2003, then Bishop of Pittsburgh Robert Duncan argued that, in approving the consecration of Gene Robinson to be Bishop of New Hampshire, the General Convention had violated its own constitution. I did not then—and I do not now—understand the logic of this charge, but it has often been repeated by conservative church militants. I think that two lines of argument have been put forth—that the church violated “historic Faith and Order” and that it somehow violated an obligation to the Anglican Communion. Neither argument makes any sense, but that is beside the point.

The Preamble, which was added to the constitution in 1967, reads as follows:
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, a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and regional Churches in communion with the See of Canterbury, upholding and propagating the historic Faith and Order as set forth in the Book of Common Prayer. This Constitution, adopted in General Convention in Philadelphia in October, 1789, as amended in subsequent General Conventions, sets forth the basic Articles for the government of this Church, and of its overseas missionary jurisdictions.
It is not apparent to the casual reader that the actual purpose of the Preamble is to establish “The Episcopal Church” as the legal equivalent to “Protestant Episcopal Church in the United States of America.” Various unsuccessful attempts had been made over the years to shorten the church’s name. When, in the 1960s, such a change had become widely acceptable, concern were expressed that a name change might have unanticipated legal ramifications. It was therefore decided to create an alternate legal name. The wording of the Preamble was proposed by Dr. Clifford P. Morehouse, who was president of the House of Deputies. The text involving the nature of the church and its relation to the Anglican Communion was, as we would say in Louisiana, lagniappe. The Preamble was adopted by the General Convention without amendment.

There are two reasons for removing unnecessary provisions from the Preamble. First, they have been used as a cudgel against the church, unfairly, to be sure, but convincingly to some. Second, should we find ourselves not in the Anglican Communion at some future time—we could remove ourselves, we could be ejected, or the Communion could self-destruct, three plausible developments—references to the Anglican Communion that could not be removed for six years would, at best, be embarrassing. Conservatives have argued that separation from the Communion would present a “constitutional crisis.” This is silliness, but we have been harmed by silliness before. We would do well to remove the threat, if not to our legitimacy, at least to our tranquility.

In my post, “A Preamble Proposal,” I offered this alternative to our present Preamble:
This Constitution for 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), adopted in General Convention in Philadelphia in October, 1789, as amended in subsequent General Conventions, sets forth the basic Articles for the government of this Church, and of its overseas missionary jurisdictions.
I propose that this become the revised Preamble, though perhaps we should retain “The Episcopal Church,” rather than “the Episcopal Church,” as I suggested last year.

Mandate Support of the General Church

It is unconscionable that dioceses like my own, at least in the years before the departure of Bob Duncan and his merry band, demanded a diocesan assessment be paid by parishes to the diocese while refusing to contribute any funds to the maintenance of the general church. This is both poor stewardship and blatant hypocrisy. It makes it easier for dioceses to keep the rest of The Episcopal Church at arm’s length. General Convention should determine a fair contribution from each diocese and demand payment. Hardship exceptions are needed, but there should be consequences for non-payment. The assessment on dioceses should be a single figure, so that dioceses have no incentive to pay part while objecting to paying another part.

Bring Transparency to Consent Collection

Once a bishop is elected by a diocese, a majority of standing committees and a majority of bishops with jurisdiction must consent to the consecration of the bishop-elect. The collection of consents is usually a formality that proceeds quickly, concluding long before the expiration of the 120 days allowed by Canon III.11.4. This is not always the case, however. Votes by standing committees and (particularly) bishops are only made public if the voters themselves make them so. Knowing the status of the voting is helpful in the case of controversial bishops-elect. It could alert the electorate to concerns of which many may be unaware, for instance. At the very least, final vote tallies should be released, which is both a check against fraud and an acknowledgement of American democratic values.

One might also ask the question whether 120 days are really necessary to collect consents in the Internet age. Perhaps 90 days would be enough. (Those 90 days should be calendar days, however, and there should be no excuse for extending the period as the presiding bishop did after the first election of Mark Lawrence.)

Provide a Mechanism to Remove a Dysfunctional Bishop

Appropriately, it is difficult to remove a bishop from office. There are times, however, when the relationship between a bishop and the bishop’s diocese has become dysfunctional and, apparently, beyond redemption. Such a situation can exist even in the absence of offenses by the bishop that could lead to the institution of disciplinary procedures under Title IV. (The relationship of the Diocese of Pennsylvania and Bishop Charles Bennison comes immediately to mind.) There should be a way for the diocese to remove its bishop. Perhaps bishops should even be elected for a fixed term, as they are in some other churches. I don’t have a plan here, but one is needed.

Clarify that Accession is Irreversible

Section 1 of Article V of the church’s constitution, which relates to the admission of new dioceses, contains this sentence:
After consent of the General Convention, when a certified copy of the duly adopted Constitution of the new Diocese, including an unqualified accession 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.
The clear intent here, I would argue, is that every diocese is to be forever bound by the provisions of the General Convention’s constitution and canons. Nevertheless, a number of dioceses have removed accession clauses from their constitutions, sometimes with the transparent intention of leaving the church altogether. I believe this was first done by the Diocese of Dallas and done most recently by the Diocese of South Carolina. It was done in my own diocese of Pittsburgh prior to the 2008 schism.

Dioceses that have removed or qualified accession clauses in their constitution have, as far as I have been able to determine, justified their moves by one of two arguments. South Carolina has argued that, as one of the original dioceses, the Article V restriction does not apply. Originally, however, all dioceses were required to accede to the constitution. (The required accession to the canons was added to the constitution much later.) The other argument, one used in Pittsburgh, is that, although a new diocese must have an accession clause in its constitution, Article V does not require that the clause remain in the constitution. The clause could be removed immediately after the diocese was admitted to the General Convention. This argument is silly and presumes that the General Convention is stupid, but there is a loopy logic to it.

It is time for the nonsense that dioceses are somehow sovereign and not necessarily bound to the constitution and canons of the General Convention to be put to rest. We need a constitutional amendment that declares that (1) every diocese must maintain a constitutional provision of accession to the General Convention’s constitution and canons, and (2) even in the absence of such a provision, the diocese is nonetheless so bound.

Clarify a Bishop’s Responsibility for Improper Changes to Governing Documents

Changes to accession clauses by dioceses have had few consequences. In the case of Pittsburgh, for example, Episcopalians in the diocese were able to get Executive Council to declare that the qualification of accession in the constitution was null and void. Well, we see how effective that determination was!

I argued in November 2006 that weakening a diocese’s accession clause is intrinsically unlawful and that support for it by a bishop is a punishable offense. (See “Unqualified Accession.”) Our church leaders, on the other hand, have had the view that crippling the accession clause is not an offense, but using the change to justify some otherwise improper action is. Thus, we wait until a diocese tries to leave the church before we take action! This is a bankrupt, even suicidal, policy.

The canons should state that any bishop who supports or abets the weakening of the diocesan accession clause should be subject to church discipline. Even this would not be an air-tight rule. Mark Lawrence has argued that changes to the South Carolina constitution were done by the South Carolina convention, not by him. Lawrence, of course, could have ruled the change out of order. He did not. (He might have a defense if such a ruling were overruled by the convention.)

Allow Clergy Discipline to be Handled Outside Diocese

Alas, Episcopalians have learned in recent years that dioceses sometimes run off the rails. They have also learned that there is little they can do about it when it happens. (See my recent post “Whither South Carolina?”) A few years ago, I consulted with members of another diocese that subsequently claimed to have left the church about a particular priest who seemed clearly guilty of canonical violations but who was presumably doing the bidding of his conservative bishop. Bringing charges against such a miscreant was pointless, as the diocese would never have found him guilty. As I understand the revised Title IV, this problem remains. Even if a bishop were removed for his or her part in gutting the diocese’s accession clause, there is presently no way to discipline clergy who voted for the change. We need a way to impose discipline on clergy from outside a diocese in extreme situations.

Provisions for Dealing with a Rogue Diocese

Consider the Diocese of South Carolina. Its bishop has been complicit in removing the accession to church canons and could conceivably be removed for that (see above). Even if Mark Lawrence were removed from the diocese, as I explained in “Whither South Carolina,” the church would still have a rogue diocese on its hands, one hostile to the general church and convinced of its own independence. Even if the more extreme clergy were deposed, South Carolina contains many laypeople holding similar views. What can The Episcopal Church do about such a situation now? Virtually nothing.  Despite charges that Presiding Bishop Katharine Jefferts Schori is a tyrant intent on subduing the sovereign Diocese of South Carolina, she is, in actual fact, lacking usable tools to restore South Carolina to sanity.

The Episcopal Church needs a constitutional procedure for dealing with a diocese—South Carolina is but the latest example—that has gone rogue and divorced itself, virtually, if not literally, from the wider church. There should be a mechanism for the church to replace diocesan leadership with leaders friendly to the general church until such time as the diocese can be made a sane participant in church life.

No doubt, this will be seen as my most radical proposal, and I will be denounced as an enemy of democracy and a friend of tyranny. So be it. I love my church and am sick of seeing it undermined from within while Episcopalians stand by wringing their hands. Having a democratically governed church need not mean having a church at the mercy of small, but determined minorities.

Completing the Job

Careful readers will observe that the foregoing suggestions mostly have to do with maintaining the integrity of The Episcopal Church internally. To complete the job of protecting our church from all enemies foreign and domestic, we should reject the Anglican Covenant (see “A Revised Proposal for General Convention 2012”) and amend the constitution to protect ourselves both from agreements that would limit our autonomy and from dioceses that would attempt to enter into such agreements. (Some conservative dioceses have wanted to adopt the Anglican Covenant as a diocese.) I have not really thought of an appropriate wording for such an amendment, but I would like to see the Anglican Covenant be not only unwise but also unlawful for The Episcopal Church and for any of its dioceses to adopt.


This ends my quick-and-dirty list of tasks for General Convention. I’m sorry that my list is not clearer or more compelling; this is the best I can do in a hurry.

Readers, what do you think? Which ideas a good and which do you think demented? Do you have other ideas? Let’s have a discussion.

6 comments:

  1. I am in complete and total agreement with all of this. Dr. Deimel's suggestions are absolutely right on. As an Episcopalian in the Diocese of Dallas, I have seen first hand the flippant attitude taken towards accession clauses, church discipline procedures, and the need to support financially the General Church. It is time to quit talking and start acting. Is there any way to actually present these changes to General Convention for consideration?

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  2. Politics, as the old saw goes, are the art of the possible. At this moment, I cannot imagine this program getting through the next GC in Indianapolis next year. It takes so long to get anything onto the agenda for GC that it is already too late.

    The house of bishops and few others have been suggesting a special convention for 2013 or 2014 to deal with other issues -- primarily the reality that we have a 2 million member church with a 3 - 5 million member structure. I am not inclined to support the idea, albeit that won't change a single vote as I have no influence.

    The problem with constitutional conventions is that once they are called, they can do just about anything.

    Canonical reform on the other hand is relatively easy to legislate. The question is what is needed that can be done, especially given that the "Blue Book" is about to issue and therefor there is little if any time to add or subtract from the agenda.

    FWIW
    jimB

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  3. Jim,

    I share your anxiety about any kind of constitutional convention.

    As for the pragmatics, I have a habit of tilting at windmills. Why change now?

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  4. Lionel, A point. But then, on occasion, I like to win.

    FWIW
    jimB

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  5. The Church is of course a complex thing: legal, corporate, institutional, biological, pneumatic. We have rules, customs, memories, relationships. Loyalties and beliefs.

    In our foundation, as per the Preface to 1789, we understood of ourselves as a matter of course that "this Church is far from intending to depart from the Church of England in any essential point of doctrine,discipline, or worship; or further than local circumstances require."

    There is liberty, but there is also continuity. The Preface didn't "create" that continuity. It simply stated that which was already understood to be true.

    It is sometimes said of the so-called "Dennis Canon" that it simply put in canonical form an understanding that was implicit from the beginning of our organization as a Christian body. I'm not sure about that. But I would say that the affirmations of the 1967 Preamble don't create our dependence upon the wider Anglican fellowship but simply restate that which has always been understood. Revising or removing the text wouldn't change that.

    Bruce Robison

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  6. Changing the Preamble will not change history, of course, but it will prevent certain pseudo-legal arguments against The Episcopal Church.

    We do not, I suggest, in any way depend on the “wider Anglican fellowship”—not now, not ever. We owe a debt of gratitude, but not one of obedience, to the Church of England and to the Scottish Episcopal Church.

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