My Day in Court

Today, I attended a hearing before Judge Joseph James on the October 14, 2005, stipulation in the Calvary lawsuit against deposed bishop Robert Duncan and other former officers of the Diocese of Pittsburgh. The event had been variously portrayed, but Judge James characterized it as being about the petition from the plaintiffs to enforce the stipulation. Soon after he took the bench, just after 10 o’clock, he said that the hearing was to determine whether the stipulation had been violated and needs to be enforced. At issue was only the meaning of paragraph 1 of the settlement document:

Property, whether real or personal (hereinafter “Property”), held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter “Diocese”) for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held or administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. For purposes of this paragraph, Property as to which title is legitimately held in the name of a parish of the Diocese shall not be deemed Property held or administered by the Diocese.

Diocese of Pittsburgh chancellor Andy Roman represented the plaintiffs, and John Lewis represented the defendants, none of whom appeared to be in the courtroom.

Calvary Church and the Diocese of Pittsburgh were amply represented among the small group of spectators. At one point, I thought I saw Bishop Duncan walking down the hallway to the courtroom, but it turned out that I had seen John Lewis, someone I had never met but who bears a striking resemblance to Duncan from certain angles. (I thought this rather remarkable and mused over whether Duncan had picked a lawyer from a book of 8x10 glossies. “That one!” I imagined him saying, as he pointed to the photo of Lewis. “He looks so trustworthy!” But I digress.)

In particular, what was not being litigated was whether Duncan and his supporters had rightfully removed the diocese from The Episcopal Church. During the hearing, Lewis made it clear that he thought the point at issue was the meaning of the stipulation under the assumption that the withdrawal was proper. Roman, on the other hand, was arguing for a particular interpretation of paragraph 1 without regard to the propriety of withdrawal. Although this seems like a broader issue, since the defense has admitted that it loses the case if withdrawal was not proper, the only interesting case to consider is the one in which the withdrawal was valid. If it were, however, the defendants might still lose.

The hearing began with Roman announcing a schedule for post-hearing briefs that had been agreed to by attorneys for both plaintiffs and defendants. This was a depressing beginning; the last deadline is July 9. Judge James, also, seemed none too happy. He remarked on the quantity of reading necessitated by the Calvary case and said that he “may have to get more Murine” for his eyes. Roman then proceeded to present the case for the plaintiffs.

I don’t frequent courtrooms, and what came next was something I had not been prepared for by watching episodes of Perry Mason. Neither Roman nor Lewis presented a coherent theory of the case to the judge. Instead, they made (or tried to make) various points, presumably relying on pre- and post-hearing briefs to construct a complete story for the court.

The nearly two-hour morning session of the hearing was taken up with the testimony of Walter DeForest, the attorney for Calvary Church who filed the suit against diocesan leaders in 2003. Lewis immediately objected to Roman’s calling DeForest, but the judge allowed it after Roman said that DeForest was not there to give his legal opinion but to provide context regarding the settlement reached in 2005.

Roman introduced 16 exhibits (documents) and asked DeForest to put each of them in context. Lewis objected to the introduction of each exhibit, but he only managed to convince the judge to exclude one of them. The exhibits were mostly documents generated by one party or the other in the process of negotiating the October 2005 stipulation. The primary negotiators were DeForest himself, for the plaintiffs, and Wilbur “Joe” Otto and Wicks Stevens for the defendants. What was established in the examination of DeForest primarily was that

1. Negotiation of the stipulation began at a time when discovery had produced a good number of documents from the defendants and, in the normal course of litigation, the taking of depositions would follow. (The implication seemed to be that the defendants wanted to avoid being deposed.)
2. A great deal of time was spent clarifying “Diocese” in the stipulation. (I learned that capitalizing such a word or phrase that is defined in the document makes it a “defined term,” whose meaning is always that which has been stipulated explicitly. In other words, capitalization, which might not be required grammatically, can be legally significant.) DeForest explained that he did not want any later confusion or dispute over what diocese was being referred to. (Obviously, he was not completely successful in this regard.)
   
3. DeForest always had the objective of maintaining diocesan property within The Episcopal Church and would not have agreed to a settlement that did not achieve that objective.
4. Otto agreed to keeping the diocesan property with the Episcopal Church diocese and did not object when the stipulation was characterized as doing so.

I will spare you details of the discussion of each of the 16 exhibits. After a lunch break, Roman quickly finished his questioning of DeForest. Before cross-examination began, Roman announced that exhibits 17–41 were also being offered to the court without objection by the defense as to their authenticity. More on these below.

When Lewis began questioning DeForest, the conversation became a bit testy. DeForest was obviously being careful about what he said, and I think he was genuinely perplexed at times as to what Lewis was getting at. Roman occasionally objected, and even Judge James seemed surprised by some of the questions. Lewis asked, for example, if DeForest intended the “Diocese” of the stipulation to be a “constituent part” of The Episcopal Church and whether “Diocese” could refer to the same diocese or a new diocese. At one point, DeForest responded that a Lewis question “doesn’t make sense to me.” Lewis asked if DeForest saw a difference between “disaffiliating” and “withdrawing.”

Lewis introduced an exhibit, and he asked DeForest to identify it. It was apparently a document from Otto, involving the negotiations about the stipulation, but DeForest could not identify it and said that no copy of the document had shown up in the search of his files. (The first set of exhibits were largely or completely from DeForest’s files.) Lewis was trying to make a point here, but it is not clear what it was. In the end, he said he would get an affidavit from Otto that the document had been sent to DeForest. What this was about proved to be the big mystery of the day.

In any case, cross-examination of DeForest ended without any clarity as to what Lewis was trying to accomplish.

Roman then called Jacqueline Koscelnik, a partner of DeForest who had been sequestered during her partner’s testimony. Her testimony largely provided minor details about the stipulation negotiation; her role in meetings was, according to her testimony, mostly as a witness. One particularly interesting fact did come out in her direct examination, however. There was, at one time, a plaintiff request for an accounting of Bishop Duncan’s time, as there was a concern that diocesan funds were being used to support the Anglican Communion Network. According to Koscelnik, however, the defendants would not agree to this.

Lewis’s cross-examination of Koscelnik was brief. He was mainly concerned with the creation of a “new” Episcopal diocese and what would happen if there stopped being an Episcopal Diocese of Pittsburgh in The Episcopal Church.

After a brief recess, Roman gave copies of the remaining exhibits to Judge James, and the attorneys quibbled over the relevance of particular documents. During this time, the judge observed that Roman never referred to the Southern Cone group as a “diocese,” and Lewis noted that Mary Kostel and David Beers, attorneys representing The Episcopal Church and sitting silently at the plaintiffs’ table, could never admit that a diocese can withdraw because of pending litigation elsewhere. Roman seemed to have a variety of objectives in bringing in the final set of exhibits, most of which were allowed by the judge, some with questions being raised by the judge or by Lewis as to their relevance. Because many of the exhibits were not clearly identified orally, some of the discussion was hard for spectators to follow.

One concern of the defense became clear. Lewis does not want a letter from the Presiding Bishop to end the discussion as to who represents the “Diocese” of the stipulation. (Roman indicated that some of the exhibits were intended to establish the legitimacy of his client.) Eventually, Kostel, who apparently could maintain silence no longer, stood up to say that Lewis had no standing to argue about Episcopal Church polity, a point reiterated by Roman as well near the end of the day.

The hearing ended with Lewis “conceding” several points and an agreement that the two sides would indicate to the court previous briefs they believed relevant to the matter at hand by Monday, June 1. (I was relieved when the end came, as Judge James had suggested earlier that the hearing might go on for three days. I had expected it to take only one morning!)

The plaintiff position has always been clear: A diocese cannot leave the church; the diocese recognized by The Episcopal Church is the continuation of the pre-October 4, 2008, diocese; and that is the “Diocese” of the stipulation. The defendants dispute all three points, and they know they cannot prevail without winning their point on the first proposition. Their argument seems to be that (1) they withdrew properly from The Episcopal Church, leaving the church without a Pittsburgh diocese; a “new” Pittsburgh diocese therefore needed to be created; the creation of a new diocese requires action by the General Convention, which has obviously not occurred; and the only entity that could “continue” to hold diocesan property is Duncan’s.

Although Roman is trying to show that the Presiding Bishop and Executive Council recognize his client as the legitimate and continuing Diocese of Pittsburgh, Lewis is claiming that legitimation comes only from the General Convention. Of course, Roman will soon be able to argue that deputies from his client have been admitted as members of the 2009 General Convention, which will thereby recognize the diocese, at least implicitly. Here’s an idea, however: Why not introduce a resolution in the General Convention to the effect that the Convention recognizes the Diocese of Pittsburgh as the legitimate and continuing diocese, for which no additional “admission” to union with the General Convention is necessary. Such a resolution should be passable in 15 minutes or so in Anaheim. It would seriously undercut Lewis’s argument and would be timely indeed.

San Joaquin Clergy Deposed

I received a press release from The Episcopal Diocese of San Joaquin today explaining that 61 priests and deacons who formerly were resident in the Diocese of San Joaquin have been deposed by the Rt. Rev. Jerry Lamb for abandonment of the communion of The Episcopal Church. According to the press release,

The clergy who followed Schofield refused to acknowledge the Episcopal Bishop of San Joaquin, the Rt. Rev. Jerry A. Lamb, and were determined to have abandoned the Communion of the Episcopal Church in October and November 2008. The clergy had six months to deny their abandonment, recant, or renounce their ministry in the Episcopal Church or face removal or deposition from the ministry of the Episcopal Church.

Bishop Lamb explained, “They declined to ask for a release from their ordination vows, and I had no option but to bring the charges of abandonment of the Communion to the Standing Committee last year and take these final steps today.”

You can read the full press release here.

It is sad that these clergy are now lost to The Episcopal Church. May they find spiritual contentment elsewhere.

Accountability

The overwhelming message I found in the latest court filing from Robert Duncan and his fellow defendants in the Calvary lawsuit is the idea that a diocese, and particularly its diocesan bishop, is accountable to no one. (See “More Words from Lala Land.”)

According to the material from the Duncan attorneys, the diocese is not subordinate to the General Convention. The accession clause required when a diocese becomes a part of the church means nothing the instant after union with the General Convention is approved. The Dennis Canon does not apply to diocesan assets. Not only is a diocesan bishop not “under” the Presiding Bishop, but the office of Presiding Bishop is primarily ceremonial. (Why, one has to wonder, did Duncan ever long to become Presiding Bishop. Presumably, the impotency of the formal leadership position in The Episcopal Church will be corrected in Duncan’s Anglican Church in North America.)

Much of the theory put before the Allegheny County Court of Common Pleas echoes the recent statement on church polity from a group of conservative bishops and its Anglican Communion Institute inspiration, Mark McCall’s improbable essay, “Is The Episcopal Church Hierarchical?” Duncan and his lawyers have extended even those extravagant claims to new extremes.

Isn’t it ironic that many of the same folks who insist that the autonomy of Anglican churches must be constrained by “interdependence“ and “accountability” seem to believe in the absolute independence of dioceses and their bishops, who, apparently, are accountable only to God.

Why is it that The Episcopal Church is tolerating the notion that our sister churches should have any formal power over our church whatsoever, when many of the people advocating such innovative relationships—and we are being sold radical changes in the Communion under the banner of “restoring” longstanding but broken relationships—are unaccountable even to formal, seemingly straightforward and binding canons. Does anyone doubt that fuzzy notions of accountability in the proposed Anglican covenant mean anything but that The Episcopal Church will be accountable, but our conservative critics will not be?

More Words from Lala Land

Attorneys for Bishop Robert Duncan and the other defendants in the Calvary lawsuit have filed “Answer and New Matter to Complaint in Intervention” with the Allegheny County Court of Common Pleas. It is difficult to know if the latest material from the Duncan camp is just so much legal flak intended to delay justice as long as possible or whether the deposed bishop is simply living in Lala Land. I am inclined to believe the latter. Apparently, being an “orthodox” bishop means never having to acknowledge ordinary facts. (Thanks to David Virtue for posting a PDF for the May 19, 2009, filing before it has appeared on the site of the county prothonotary. You can read an enhanced PDF here.)

I won’t attempt a serious analysis of the latest document from the defendants, but it is easy to communicate a sense of what is being argued by listing some of what the defendants admit and dispute. Most of the new document is concerned with refuting the assertions made in the most recent filing by The Episcopal Church, which can be read here. In particular, the defendants deny:

1. that Bishop John C. Buchanan is “authorized to state the official position of TEC.”
   
2. that TEC has headquarters in New York City.
3. that TEC is hierarchical or that dioceses are subordinate entities [to anything, apparently].
4. that the General Convention is “the highest branch of TEC.”
5. that the General Convention had anything to do with the church’s “founding dioceses.”
6. that TEC has 111 dioceses. (Dioceses such as Pittsburgh and San Joaquin have left, and “no new dioceses have been properly formed to replace them in accordance with the procedures set forth in the TEC Constitution and Canons.”)
7. that Robert Duncan “was formerly Bishop of the Diocese.” (He is the “current Bishop.”)
8. that the deposition of Duncan was legal or valid.
9. that neither the constitution nor canons of TEC prohibit the withdrawal of a diocese from TEC.
10. that the Dennis Canon applies to diocesan property.
11. that the Anglican Province of the Southern Cone encompasses Argentina, Bolivia, Chile, Paraguay, Peru, and Uruguay. (It is admitted that the Southern Cone is a member province of the Anglican Communion.)
12. that “[i]t is a historic tradition of the Anglican Communion that each Province exercises jurisdiction within its own distinct geographic territory and not in any other Province.”
13. that the church’s constitution and canons specify how dioceses are formed.
14. that new dioceses are required to accede to the constitution and canons of TEC.
15. “Any interpretation” of the BCP, constitution, or canons of either TEC or the Diocese of Pittsburgh. (The documents “speak for themselves. Any interpretation of said documents is specifically denied.” This assertion is made multiple times. A linguist would laugh at such an assertion, of course. Words are not carriers of pure meaning.)
16. that “[t]he Constitution and canons of The Episcopal Church do not provide for the autonomy, release, withdrawal, or transfer of any diocese that is not a Missionary Diocese.” (A simple reading of the constitution and canons will establish that this assertion is false.)
17. that Article I of the diocesan constitution has always acceded to the Episcopal Church constitution and/or canons. (Presumably this assertion is about recent history, that is, about the improper changes made to the diocesan constitution under Duncan.)
18. that the Diocese of Pittsburgh “has ever participated as a subordinate unit in TEC.”
    
19. that leaders of Duncan’s “diocese” are not bound by the constitution and canons, as they are no longer in TEC. (Of course, they were and were therefore bound at the time that they acted contrary to the canons.)
20. that the “realignment” vote was urged upon the diocese by Duncan, even though it is admitted that he supported the vote.
21. that the constitutional changes begun in 2007 were “intended to amend the Diocese’s Constitution to remove references to The Episcopal Church and to permit the Diocese to specify by canon the Province of the Anglican Communion of which it would be a member.” (That’s certainly what we thought we were voting on.)
22. that the vote in the House of Bishops to depose Duncan was not carried by the required majority. (Duncan was therefore not deposed. He “voluntarily allowed the Standing Committee to become the Ecclesiastical Authority,” something he surely did not make clear to the world at large at the time.)
23. that the “realignment” vote violated any provision of the constitution or canons of TEC. (Also: “The resolution is a written document, the contents of which speak for itself; any interpretation of said document is specifically denied.” Whatever does that mean?)
24. that the diocese had a special convention in December 2008 or that any valid action was taken at the “purported” meeting.
25. that “the Standing Committee of the Diocese appointed an Assisting Bishop to provide interim episcopal oversight for the Diocese.” (Obviously, truth or falsity here turns on which diocese is the Episcopal Diocese of Pittsburgh. This is really what the May 27, 2009, court hearing will be about.)
26. that The Episcopal Church has not recognized the diocese run by those who stayed in the church. (The Presiding Bishop merely offered her opinion.)
27. that there can be any interpretation of the “Request to Special Master,” which “is a written document, the contents of which speaks for itself.” (The same goofy assertion is made, in fact, about all filings by the defendants.)
    

The defendants deny other assertions by The Episcopal Church, but some of these are complex, and it is not clear whether, if pressed, some minor facts might be assented to. An incomplete list of what the defendants agree to is the following:

1. Calvary Episcopal Church “is a non-profit corporation located in Pittsburgh, Pennsylvania.”
2. The Rev. Dr. Harold Lewis is Calvary’s rector.
3. Philip Richard Roberts was senior warden at Calvary when Calvary first filed suit.
4. The diocese is not a missionary diocese.
5. The General Convention approved the creation of the Diocese of Pittsburgh in 1865.

Various other incontrovertible facts are also admitted; I’ll spare you the details.

The filing concludes with “new matter,” asserting, basically, the following:

1. Neither Bishop Buchanan, nor the Presiding Bishop, nor Executive Council has authority to state a position of the church relative to the current litigation.
2. TEC cannot enter the case because the plaintiffs have earlier argued against entry of the church. (In fact, the defendants earlier argued that TEC was necessarily a party to the dispute that had to be admitted to the case. Plaintiffs argued that it was not. Plaintiffs have now welcomed the intervention of TEC. The defendants have not.)
3. “Before the Diocese withdrew from TEC, the Diocese’s Constitution and Canons did not require its members or officers to remain members of TEC.”
4. Canon law of neither the church nor the diocese (1) required TEC approval of diocesan constitutional amendments, (2) probibited the withdrawal of the diocese, or (3) required the diocese “to always accede to the Constitution and Canons of TEC.” (See my own essay, “Unqualified Accession.”)
   
5. The changes to diocesan canon law allowing withdrawal were proper.
6. The stipulation to which all parties agreed in 2005 did not prohibit withdrawal and was not violated by withdrawal.
7. TEC is not a party to the stipulation, and the stipulation imposes no obligations to TEC on the part of the defendants.

That pretty much covers what I assume will be the last filing prior to the hearing a week from now. Judge for yourself where the defendants are coming from.

Streamlining Choir Rehearsals

I sing bass in my church choir. Although I very much enjoy this activity, both for its musical rewards and for the contribution I can make to worship at St. Paul’s Episcopal Church, choir rehearsals can sometimes be frustrating. I often find myself flipping frantically through the music in my rehearsal folder trying to find the next piece we are going to rehearse, and I sometimes discover I have not found what I’m looking for because my choir director has announced a title that is not quite the title printed on the music!

I suspect that members of other church choirs experience such frustrations as well, so I have devised a plan to minimize them and to make choir rehearsals more efficient. This isn’t really rocket science, but other choirs might also benefit from my plan. You can read about what I have proposed to my choir director on my Web site. My essay is called “Streamlining Choir Rehearsals.”

Cuba and Chrysler

In the news this past week was Chrysler’s dropping over 700 dealerships and GM’s planned non-renewal of agreements with over a thousand dealers. I also happened to see a CNN report on Cuba this week, although, since I really wasn’t actively watching the television at the time, I’m not too certain about the content of the report.

Juxtaposing thoughts of Cuba and failing car companies gave me an idea. Why not sell new Chrysler automobiles to Cuba? Cuba is a natural trading partner, yet the U.S., alone among the world’s countries, has maintained an embargo on trade with the Caribbean island. Clearly, however, President Obama does not share the mindless commitment to this senseless policy the U.S. has pursued for half a century.

Who hasn’t seen the TV reports of the privations of ordinary Cubans resulting from our embargo? Who hasn’t seen the antique American cars plying Cuban streets and maintained with duct tape and bailing wire? And Cuba’s government today is neither better nor more democratic as a result of America’s foreign policy.

After so many years, perhaps the American economy needs the Cuban economy as much as the reverse. Creating a new trading partner with a huge backlog of needs just 90 miles from our shores could give our ailing economy a significant boost.

Isn’t it time to admit that the Cuban trade embargo has been a colossal bust, and that allowing aging, angry Cuban exiles—isn’t it time we called them immigrants?—to dictate our foreign policy is, and never was, a good idea? Lifting the embargo could be a win-win strategy for our two nations. Let’s just hope that the Cuban government isn’t so angry with us that it would decline to deal with us because of our longstanding and pointless hostility all these years.

Still No Reason for a Covenant

I don’t usually reprint other people’s essays on Lionel Deimel’s Web Log, but I am making an exception for a perceptive essay that was sent to the House of Bishops and Deputies Mailing List a few days ago. The essay, “Still No Reason for a Covenant,” was written by Jim Stockton, an Episcopal priest in Austin, Texas. Because the HoB/D list does not have a public archive, and because I believe this essay deserves to be more widely read, I am reproducing it here, with permission of the author. There is no need for me to write on this topic, as Fr. Stockton has done a better job than I could hope to do. The text below is slightly edited from the original, what was in plain text, rather than in HTML.

He has made himself abundantly clear: the Archbishop of Canterbury (ABC) is intent on imposing a covenant upon the Churches of the Anglican Communion. One can only wonder why he is intent on this end, for he has offered no real purpose for it. The sum of all his apologetic is that a covenant is an end that justifies itself. He fails to offer a genuine and theological purpose for it. On the one hand, he notes that the Churches do function and serve in effective partnership with one another. On the other hand, he implies that without a covenant the Churches will not be able to continue to do so. His reliance upon a false and implied logic exemplifies a plain truth of the matter: neither he nor anyone one has yet offered a serious reason for pursuing a covenant. Many have offered justifications for the concept of covenant per se, but no one has offered anything that approaches a compelling inspiration for this particular effort. This effort was initiated bureaucratically through the Windsor Report (even though the Primates themselves meeting at Dromantine expressed reservations toward the pursuit of a covenant) which was itself a response to the use of parliamentary bullying and the socio-politically ‘conservative’ propaganda by emerging-world primates who were then and are still being funded and manipulated by hard-right American money. The Archbishop of Canterbury, apparently possessed of a curious notion of his role as somehow the head of a single global Church, now seems intent upon imposing this view of his own rights and privileges upon the wider Anglican Communion.

His address to the recent meeting of the Anglican Consultative Council helps exemplify his position. “The Anglican Communion has never called itself ‘a church’ in its official documents and yet as a world-wide communion—not just a federation—it has claimed for itself and claimed particularly in relation to its ecumenical partners that it is precisely more than just an assembly of local churches that happen to belong to the same bureaucracy. It has tried to behave in a church-like way: recognizing ordained ministry, sharing sacraments, sharing teaching and to a large extent doctrinal formulations and canonical positions.” Reality contradicts the Archbishop’s claims. In fact, the Churches do not belong to the same bureaucracy. In fact, the Churches have not “tried to behave in a church-like way;” unless such behavior equates to the efforts of autonomous and autocephalous Churches working cooperatively on specific goals and ministries. If this is the case, then where lies the need, much less the inspiration, for a covenant? Further, it is a fact that the Churches of the Communion do not universally ‘recognize ordained ministry, share sacraments, teaching, and doctrinal formulations and canonical positions’ any more than, for instance, the Episcopal Church and the Lutheran Church. An American clergy person’s ordination does not automatically translate to ordination in the Church of England; he or she is not an English priest and is not allowed to function as such without application for license to do so. As is true respectively for each Church of the Communion, the Episcopal Church in the United States ordains clergy in and only for the Episcopal Church in the United States. Any exception to the rule is exactly that, an exception. It may be that the Church of England, or just the Archbishop of Canterbury, would prefer it to be otherwise. Nevertheless, we are not a Roman Catholic style Church. The reality simply is not what the Archbishop describes in his remarks. In fact, the reality of the Anglican Communion is ecumenical in the sense of the ancient Church. Rather than trying to change this to recreate the Anglican Communion in the image of jolly old England or of the Roman Church, we should be celebrating the distinctive gifts that this venerable model offers the world.

It is, I think, manipulative and unkind of the ABC to imply that Churches who may not look favorably upon a covenant are somehow lesser in their faithfulness to Christ-like fellowship and ministry. Yet he does exactly this when he declares “that provinces of the communion that choose to adopt the proposed Anglican covenant when it is made available will be showing that they ‘want to create a more intense relationship between them—a fuller and freer exchange between them.’” [This and subsequent quotations are from a May 12, 2009, Episcopal New Service story.] He goes on to suggest that once a covenant is in place, then more will need to be added: “Others,” he says, “are not choosing that [to adopt the proposed covenant] and the difficult question is: what is the best and most constructive relationship between those who do choose and those who do not.” He declares that with some Churches signing on and “others” not doing so, what will be needed then is “some other kind of structure with ‘groups of Anglicans associated for different purposes in different ways.’” Again, he implies something that simply isn’t true. He implies that if all the Churches, rather than only some, will adopt a covenant, then all will be well. I suggest, to the contrary, that whether the adoption is partial or wholly Communion-wide, any adoption of “the covenant” will require a new structure. And, I suggest, the ABC fully anticipates exactly this.

The ABC’s remarks strike me as a thinly veiled warning to those Churches that would dare consider non-compliance. Despite the fact that the Church of England, bound by its status as a national institution, is well ahead of The Episcopal Church (TEC) on recognizing same-sex civil unions, the Archbishop of Canterbury is singling out The Episcopal Church in the United States as an example of those likely “others” among the Churches. He suggests that we of TEC had best not dare to set aside B033 of our last General Convention and return to observing our democratically established canons forbidding discrimination around sexual orientation in discernment of a person’s fitness for and call to Holy Orders. He claims that “holding back” on the episcopal ordination of people living in same-gender relationships “ought not to be seen as a denial of the place of lesbian and gay people in the life of Christ’s body.” This twisted logic may make some illusory rhetorical sense. However, it denies the reality that “holding back” is an autocratic assignment of a particularly and amorally defined group of people to a remnant margin. The Archbishop of Canterbury is issuing an official call for the Churches of the Anglican Communion to continue participating in official discrimination, and he does so for reasons that are purely and pathetically political.

Yet, he suggests that, should TEC ignore his endorsement of the moratoria [on blessing same-sex unions, etc., called for by the Windsor Report], we will be demonstrating our choice “not to go down the route of closer structural bonds and [of] that particular kind of mutual responsibility.” Does anyone see anything “mutually responsible” about the ABC’s circumvention of the Anglican Consultative Council’s decision not to forward to the Churches the proposed covenant? For my part, I pray that TEC chooses exactly as the ABC uncharitably characterizes he fears we will do. The Archbishop’s description of “some other kind of structure” sounds very much like the one that is now being demanded by the self-anointed “Anglican Church in North America” and their boundary-crossing foreign prelates. It also sounds like one that the ABC will be able successfully to sell to the English Parliament and the Queen. With “the covenant” as the fulcrum and the Archbishop of Canterbury (and thus the English monarchy) firmly in place as authoritative head of this new covenanted global Church, the new structure will resonate well with hard-dying English imperialistic impulses.

Watch for it. The ABC will continue to impose upon our conversations about a covenant his own vocabulary, speaking more frequently and plainly of the Anglican Communion as a “Church.” I anticipate that he will use these terms purposefully, hoping that, after having repeated them long enough and often enough, he will have succeeded in creating a new perception of reality, replacing fact with fantasy, reason with dogma. Undoubtedly, the Archbishop will continue to tell us that the Anglican Communion is not “just a federation,” not merely “an assembly of local churches,” hoping to train us to assume that there is more and that we should want it. He will then begin more overtly defining for us what that “more” is. My guess is that he will soon begin to imply, and then overtly to tell us in no uncertain terms, that we “are” already and “historically have been” a Church, albeit in a unique way. We will continue to hear and see the same from all those whose sense of institutional inadequacy drives them similarly to try create an Anglican imitation of Rome.

My prayer is that The Episcopal Church in the United States and the Anglican Church of Canada, along with some of our fellow “others” of the Anglican Communion Churches, will not succumb. Institutionally, structurally, no Church of the Anglican Communion is an appendage of a global “Anglican Church.” However, organically, spiritually, ministerially, and missionally, we are already united one to another, and with no further covenant than the historic creeds of the Church catholic. We are united not by virtue of our Anglicanism, which is secondary at best, but by our kinship in Christ. TEC and our fellow “others” need to lead the way in listening past the increasingly shrill demand for a covenant. We need to reject the use of rhetoric that includes talk of “The Covenant,” as though such a thing is already established. We will, I pray, not be misled to assume that it is an accomplished fact. It is not. There is no such thing as “The Covenant.” It does not exist, and language that speaks of it as though it does is inaccurate at best and deceptive at worst. There is only “a” proposed covenant. And it is a proposal without any express inspiration. It is a proposal awash in desperation. It is merely a proposed covenant. And I pray that we will reject it as a conceptual artifact.

Two New Moratoria

Over the past few years, we have heard much about the moratoria that various Anglican bodies have sought to impose. Member churches have been told to refrain from blessing same-sex unions, from consecrating partnered gay bishops, and from allowing bishops to operate in dioceses not their own without permission. It is likely that the Anglican Consultative Council, which is currently meeting in Kingston, Jamaica, will, yet again, endorse these moratoria. The principle behind the use of such moratoria, I’ll call it the Principle of Anglican Progress (or PAP), is that no change should take place in the Anglican Communion until every member church (most of them, anyway) agree that the proposed innovation is a good thing. PAP is part of our Catholic heritage, and it assures us that Anglicans will eventually do the right thing, even if they do so centuries after the rest of the world has concluded it is the right thing.

Since PAP has become a bedrock principle of Anglicanism, it is clearly time to examine if there are other arenas where it could beneficially be applied. This thought leads me to propose yet another moratorium—two other moratoria, in fact. For years, The Episcopal Church has been the major underwriter of the bureaucracy that is the Anglican Communion, a bureaucracy that, increasingly, has arrogated authority and grown increasingly hostile to The Episcopal Church. It is not an exaggeration to say that The Episcopal Church is financing an institution that is seriously considering gaining effective control over it or removing it from that institution entirely. Surely, we have been underwriting the undermining of The Episcopal Church.

Given our current relation to the Anglican Communion, a proper application of PAP would require that The Episcopal Church declare a moratorium on funding the Anglican Communion until such time as the mind of the Communion is settled on how it is going to treat The Episcopal Church and the “innovations” it sees our church as having instituted. Financing the subversion of our church is but another Episcopal Church innovation. Moreover, since The Episcopal Church has essentially been on trial in Communion councils since 2003, it hardly seems fair that we should participate in the decision of what the Communion should do with The Episcopal Church. Therefore, I suggest a second moratorium on participation in Anglican Communion councils until the mind of the Communion becomes clear. Like the matter of same-sex blessings, I’m sure the mind of the Commmunion will become clear in a century or so. Meanwhile, we can mend the net and keep peace in this great Communion that has been given us as a gift by God.

Happily, the General Convention meets this summer and promptly can adopt officially the moratoria I have suggested.

Not So Fast

Following the 2006 General Convention, Christopher Wells and I suggested, in an essay in The Living Church, that dealing with the Anglican Communion on matters such as the Windsor Report can be thought of as conducting the foreign policy of the church. I thought of “The Church Faces a Foreign Policy Challenge” as I considered the current deliberations at the Anglican Consultative Council meeting now going on in Kingston, Jamaica, and what the immediate fate is likely to be of the latest draft of an Anglican covenant.

There is every expectation that the current covenant draft, or something very much like it, will be sent to the Anglican provinces, including The Episcopal Church, for acceptance or rejection by the ACC. There is no doubt that only the General Convention could give an official response on behalf of the church.

Presiding Bishop Katharine Jefferts Schori has already expressed the opinion that such a response could not be considered responsibly at the 2009 General Convention. According to Episcopal News Service, Jefferts Schori said, “[M]y sense is that the time is far too short before our General Convention for us to have a thorough discussion of it as a church and I’m therefore going to strongly discourage any move to bring it to General Convention.”

In our essay, Christopher and I remarked on the fact that, even with substantial lead time, the General Convention had great difficulty responding satisfactorily to the Windsor Report. We speculated that, at the 2009 General Convention, the church might be called upon to react to a proposed Anglican covenant, and we suggested ways in which the church could do a better job next time. Our assumption was that the church would create another commission to study the situation and to offer recommendations to the General Convention. Clearly, there is no time for that or for the other recommendations we made, which I reproduce here:

1. The commission should be rigorously representative of various voices in the church, have adequate time to do its work, and act as the legislative committee at convention. This last provision would minimize the time needed to build trust and a spirit of cooperation within the group, and could discourage last-minute changes to proposed resolutions, which the convention can find disorienting.
2. The commission should incorporate into its work plan the model for developing a foreign policy response articulated above, requiring it to wrestle with the difficult particulars inherent in the interplay of autonomy and interdependence.
3. The commission should consider presenting alternative plans in its report, each with its own set of proposed resolutions; offering alternatives could facilitate agreement on resolutions without requiring agreement as to the policy to be implemented. To encourage clarity, the commission should produce as few resolutions as possible, however, and the commission members, ideally, should be willing to support the resolutions—or all of one set of resolutions, if alternative policies are presented—unequivocally and without amendment.
4. The commission’s report should appear sufficiently before the General Convention for interested parties to appraise it and for legislators to evaluate it against their own analysis of the questions, desirable goals, and means by which objectives might be achieved.
5. At convention, the committee might consider holding hearings before the Houses of Bishops and the House of Deputies in joint session, concentrating on strategy, rather than on the minutiae of particular resolutions.
6. The legislative houses should discuss the strategy recommended (or strategies offered) by the commission and whether it is the one the convention really wants to adopt. Participants, having had ample time to respond to the commission’s report, will have been prepared for this.
7. Final resolutions should be sent to the houses as early as possible—our recommendations are meant to facilitate this—which will afford the bishops and deputies ample time to put their stamp on the final result. Reporting out the resolutions as a group would facilitate coherent action.

Clearly, there is inadequate time to do any of this; the Presiding Bishop’s remarks were right on target.

Apparently, a resolution has been proposed for General Convention (“Provisional Acceptance of the Anglican Covenant”)—ironically, co-sponsored by Christopher Wells—that indeed proposes a task force to study the covenant and to bring forth recommendations for the 2012 General Convention. It also proposes, however, that the church make a provisional commitment to the terms of the covenant. How can we possibly do that if we have no time to consider seriously whether the latest covenant is anything close to what the church might want to sign on to?

Not only is it unreasonable to consider making a decision about accepting the covenant at the upcoming General Convention, but also is it unreasonable to make a tentative commitment to what is, at this point, something of a pig in a poke.

What we should begin doing at General Convention is discussing what our goals as a church are. What is most important to us, and what are we willing to sacrifice for the sake of peace in the Anglican Communion? Conducting foreign policy without any clear notion of what one’s ultimate goals are is a blueprint for disaster.

The ACC Begins Its Meeting

The meeting of the Anglican Consultative Council is now underway in Kingston, Jamaica. The most important item on the agenda is the fate of the Ridley-Cambridge draft of an Anglican covenant. Will it be sent to provinces for approval? Will it be sent back to the Covenant Design Group for a third revision? Will the idea of a covenant simply be dropped? The most likely outcome is surely that it will be offered for approval by individual churches, so that the primary issue to be decided will be the guidelines of the approval process.

Early reports from the meeting have been surprising. Anglican Journal carried this report:

“I think the Covenant Design Group thinks that it has done what it can with the text and feels that it is now mature enough to be handed out to the provinces,” added Canon Kenneth Kearon, secretary general of the Anglican Communion. While it is up to the ACC to make a decision, “the hope is that the ACC will feel that it’s mature enough to go to the provinces,” said Mr. Kearon. “No instrument of the Communion is going to make a decision about the covenant, it’s up to the member churches in the Communion.” The Anglican Communion is composed of 80 million Anglicans in 44 regional and national churches in over 160 countries.

Acceding to the covenant is voluntary, explained Mr. Kearon, adding that the membership in the Communion of churches will not cease or be altered if their decision-making bodies decide not to sign on to it.

This is an encouraging report, at least insofar as the idea of a two-tiered Communion seems to be off the table. It is difficult to know how confident one should be that that is the case, however. (Personally, I had no problem with The Episcopal Church’s being in the outer ring of the Communion, so long as we did not finance the activities of the inner circle.)

One should not be too confident that the Anglican Communion Office either knows what will happen in Jamaica or is able to control it. Interestingly, Anglican Mainstream reported Kearon’s statement like this: “The text is mature enough to send on to the provinces who will make the decisions.” Notice that this attributes the opinion to Kearon himself and not to the Covenant Design Group. More worrisome is this from Anglican Mainstream:

However, he [Kearon] admitted that ACC-14 will need to decide whether it will be individual dioceses or provinces that will sign up to the Covenant. So it appears that ACC 14 [sic] needs to decide whether individual dioceses can sign up to the Covenant even if their province does not.

Although this latter statement attributed to Kearon was not reported by Anglican Journal, there is no reason to doubt its authenticity. Conservative American bishops are trying to gain the right of dioceses to sign on to an Anglican covenant even if their province does not. (See “Communion Partner Bishops’ Statement.”) Those bishops, no doubt, have their allies in the ACC.

Let us hope that the Communion Partner bishops are not granted their wish by the ACC, which would be disastrous for the Anglican Communion. Not only would it call into question the structure of the Communion as a fellowship of provinces (churches), but it would directly undermine the internal coherence of provinces with dioceses that insisted on dissenting from the decision of their churches. Note that, if a diocese could accept the covenant if its church does not, it could presumably reject the covenant if its church does sign on. This is an invitation to anarchy. Moreover, it is unclear how Section Four of the covenant would work if dioceses can opt in or out, as that section deals with churches, not dioceses.

Can anyone doubt that, if diocese are given an option of accepting or rejecting the covenant, not all dioceses in The Episcopal Church will go along? Either the church will reject the covenant, and conservative dioceses will accept it—the most likely outcome—or the church will accept the covenant and liberal dioceses will reject it.

The notion that an Anglican covenant would unify the Communion was never a tenable idea. The ACC now has an opportunity to assure that not only the Communion will be destroyed by a covenant, but that the individual churches will be thrown into chaos. This is what comes of deciding early on that you have the “only way forward” and never looking back. And you thought only the likes of GM, Chrysler, and AIG were bad at strategic planning!

The Real Case Against Gay Marriage

A friend sent me a link today to a story about the progress of a bill allowing gay marriage in Maine. Generally, Democrats seem to be in favor of the bill, and Republicans seem to be against it. Passage by the legislature seems assured, but whether the governor will sign or veto the bill is unknown.

It is demoralizing that the debate on matters such as this is so often driven by people’s prejudices, fears, and hatred. The really significant issues are often ignored or suppressed by one side or the other. I am tired of hearing about equal rights for all from one side and about how gay marriage will destroy heterosexual marriage from the other. It’s about time that someone spoke out on the real issue in the gay marriage debate, and I intend to do so here.

Allowing persons of the same sex to wed surely does extend to gays a right hitherto restricted to straight folks.That must be counted as a plus when, for example, the Maine legislature considers whether to allow gay marriage. On the other hand, allowing gays to marry will provide a threat to everyone married now. This is a negative. (I have never completely understood this argument, but I suspect it is based on the idea that everyone wants gay sex, and making it possible to marry someone of the same sex will result in divorces to allow one or the other partner to try that alternative.)

These effects of instituting gay marriage, however, are all rather minor social consequences. The real impact of gay marriage is negative, and it most directly affects software developers and their employers.

As a database developer, I have built many databases that store personal information, including, quite often, information about people’s marital status. It is bad enough that, due to the women’s liberation movement, databases now need a field for the last name of a wife. Moreover, this field has to accommodate a particularly large number of characters because of the lamentable trend of wives taking on a hyphenated last name. When Jane Mandeville marries John MacFarland, she could become Jane Mandeville-MacFarland, which is a lot of data to store. Worse still is when the woman chooses to use both surnames, but, for lack of a hyphen, one cannot tell how to alphabetize the name. (Our example wife could be Jane Mandeville MacFarland. A real-world example is the Most Rev. Katharine Jefferts Schori, which I think should be alphabetized under “J.”)

But this is nothing compared to the extra work and mental anguish that will be occasioned by the advent of gay marriage. Of course, databases can still use fields for “spouse,” but the spouse can no longer be assumed to be the opposite sex of the party dealt with in the record. Thus, another field for sex must be added. The situation is more complex than is readily apparent, however. The sex field used to indicate who was the husband and who was the wife. I have heard gay people talk about “my wife” or “my husband,” but I don’t know if this is common. Even if it is, how does one know which is which? In fact, can each partner consider the other the “husband” or each partner consider the other the “wife”? This is a real problem for software designers whose products deal with statistics about real people. It also presents problems in social situations that could take decades to work out. Surely, a new round of etiquette books will need to be written. Is our society ready for these disruptions yet?

Getting back to the software world, will there be other terms that database and other software developers will be expected to incorporate into their products? Marital status may become more complex, for example, and may require developers to include options such as “married-straight” and “married-gay.”

In short, gay marriage will create an enormous amount of work for software professionals, and I haven’t even considered changes to payroll programs and the like that may have to deal with additional benefits to married gays. The cost to the economy will be enormous, and the anxiety to which developers will be subject due to deadlines associated with programs that must be modified because of gay marriage will be a terrible price for society to pay. And we will all have anxieties about what to call the partner of the married gay person to whom we have just been introduced.

Yes, gay marriage will create all sorts of social disruptions. The most important reason for opposing the extension of marriage to same-sex couples, however, is its effect on one of our most important industries, the software industry. The burden on our software industry and on software developers personally will greatly outweigh the benefits of providing equal rights to all. In these days of a troubled economy, we surely cannot afford to burden a major American industry just to expand freedom.

Communion Partner Bishops’ Statement

Back in September, I expressed surprise that the Anglican Communion Institute (ACI) was promoting the wrongheaded and potentially schismatic essay by Mark McCall, “Is the Episcopal Church Hierarchical?” Apparently, advocacy of McCall’s ideas was not a fluke; the ACI Web site now hosts a statement by a majority of the so-called Communion Partner bishops (and three bishops not listed as such) that is warmed-over McCall, combined with a big helping of self-serving, anti-democratic Anglo-Catholicism. “Bishops’ Statement on the Polity of The Episcopal Church” (hereinafter “Statement on Polity”) was posted April 22, though it is dated April 18, 2009. The statement is “endorsed” by the president, vice president, and senior fellow of the ACI. Five bishops who are on the Advisory Committee of the ACI are signatories of the statement. (Attorney Mark McCall is also on the Advisory Committee.)

The ACI seems so taken with Roman Catholic centralization of ecclesiastical power that it is willing to promote a revisionist church history that threatens to inject a possibly fatal anarchy into the Anglican Communion if that will help obtain approval of some version of an Anglican covenant. The ACI has, I think, made a pact with the devil.

The ACI has been quite single-minded in its advocacy. McCall’s September 2008 paper, with its provocative title and equally provocative ideas, was much criticized on the Web and elsewhere. Dr. Joan Gundersen wrote a rebuttal to the McCall piece called “A Response to Mark McCall’s ‘Is The Episcopal Church Hierarchical?’” that was published by Progressive Episcopalians of Pittsburgh. Gundersen is a historian of The Episcopal Church, and her critique relied primarily on historical evidence, rather than on legal speculation. McCall posted his own rebuttal, “Fatal Flaws: A Response to Dr. Joan Gundersen,” on the ACI Web site the day after Gundersen’s piece appeared. “Statement on Polity” cites McCall’s original paper six times in footnotes but ignores Gundersen’s analysis. One might have hoped that the scholarly members of the ACI would have encouraged the bishops—presumably a less scholarly crowd—to conduct a more comprehensive literature search and to answer objections raised by Gundersen and others. But “Statement on Polity” is not scholarship; it is naked, self-interested, and destructive advocacy.

Controversy about “Statement on Polity” began even before the document became public. The day before the statement was posted on the Web, Mark Harris wrote a commentary on his blog about some of the e-mail messages exchanged by those involved in writing it. (The e-mail, which was not addressed to Harris, of course, has been published by the Washington Blade.) The ACI president, the Rev. Christopher Seitz, chided Harris the next day. (In Shakespearean prose, Seitz declared, “We assume him [Harris] to be a man of civility and honor.”) This ACI post was quickly followed by one by Mark McCall himself, who criticized Harris both for revealing the e-mail contents and for his “misunderstanding” of McCall’s viewpoint. Ironically, McCall complained about Harris’s follow-up post, which links to the Gundersen paper but not to McCall’s rebuttal. On April 28, a new ACI post appeared under the name of ACI vice president, the Rev. Dr. Philip Turner. Turner was upset both with Harris’s posting of e-mail messages and the reception the bishops’ composition has received from Harris and others. “Unanswered Questions” does enumerate some interesting questions related to “Statement on Polity,” but some of the questions are surely of the have-you-stopped-beating your-wife? variety.

An Overview of “Statement on Polity”

As much as I would like to present a thorough analysis of “Bishops’ Statement on the Polity of The Episcopal Church,” I neither have the time to do the project justice nor do I want certain aspects of the document to go unanswered any longer than necessary. I will therefore essay but a modest critique of the document, commenting especially on those assertions I find personally most irksome. (This post is, even with its modest objectives, outrageously long and lamentably late in coming.) First, an overview of the piece.

The bishops begin with an argument intended to justify their authority apart from any particular ecclesiastical body. While asserting their authority and independence, they minimize the powers of the Episcopal Church’s Presiding Bishop and suggest that the current office holder has arrogated new powers to her office. The bishops proceed to advance the novel theory—especially familiar to those of us in the Diocese of Pittsburgh who have long been subjected to it by our now-deposed bishop—that The Episcopal Church is a “voluntary association” of autonomous dioceses. They then argue that dioceses are not subordinate to a “central hierarchy.” This section relies most heavily on McCall’s earlier work. According to the authors, The Episcopal Church is less hierarchical than, for example, the Presbyterian Church. (In his response to Mark Harris, McCall asserts that our church is hierarchical, but that the hierarchy is “dispersed,” presumably with dioceses at the top level of the distributed power centers.)

The next section of the document is “The Nature of Our Vows,” in which the bishops assert that their oaths to conform to the “discipline” of The Episcopal Church does not mean conforming to the Presiding Bishop’s understanding of the church’s polity. They assert: “Our episcopal vows contain no pledge of obedience to a higher office or body, as do churches with metropolitical hierarchies.” The bishops finally get to the purpose of the piece in the penultimate section. They assert: “Not only is the diocese the fundamental unit of The Episcopal Church, it is also the fundamental unit in catholic ecclesiology by which the people of God in the particular or local churches relate to the wider communion.” They then cite Archbishop of Canterbury Rowan Williams’ famously stupid remark to Bishop Howe on the matter of diocesan supremacy. They express the concern that dioceses might be prevented from signing on to an Anglican covenant if the covenant is rejected by the General Convention. Given the preamble to the church’s constitution, rejection of the covenant by The Episcopal Church “would plunge The Episcopal Church into a constitutional crisis,” they assert. Then follows the pièce de résistance: “Any attempt to prevent willing dioceses from signing the covenant would be unconstitutional and thereby void.”

The bishops conclude with this paragraph:

We have found it necessary to address these issues as a matter of faithfulness to our apostolic vocation and our Constitution. The traditional doctrine and worship and the historic polity of the Church are in grave peril. For this reason, we emphasize that The Episcopal Church consists of autonomous, but interdependent, dioceses not subject to any metropolitical power or hierarchical control. The Ecclesiastical Authorities in our dioceses are the Bishops and Standing Committees; no one else may act in or speak on behalf of the dioceses or of The Episcopal Church within the dioceses. We intend to exercise our episcopal authority to remain constituent members of the Anglican Communion and will continue to speak out on these issues as necessary.

General Observations

One can make a number of general comments about “Bishops’ Statement on the Polity of The Episcopal Church.” I offer those below in no particular order, and I will not attempt to justify each one. Some of the assertions I will not justify here have been dealt with adequately by others. My observations:

1. Many assertions in the document are untrue.
2. Many assertions, whether true or not, are irrelevant.
3. The self-interest of the authors is—not to put too fine a point on it—readily apparent.
4. The document assumes acceptance of a particular churchmanship—excuse my use of this obviously sexist term that has, to my knowledge, no non-sexist counterpart—that is not shared either by a majority of Episcopal Church bishops or by a majority of Episcopalians at large. Because of this, the bishops, who represent themselves as occupying some middle ground between conservatives who have left the church and the church’s “liberal” leaders, in fact are radical conservatives who might even be criticized as being cowardly for not leaving a church for which they seem to have so little respect or understanding.
5. Independent observers of the manner in which the authors use their sources might have a difficult time reaching the same conclusions as the authors.
6. There is a point to be made about the degree to which the Episcopal Church hierarchy is “defective,” but it isn’t the point made by the bishops.

Some Random Comments

I think that Dr. Gundersen has done a good job of putting dioceses in their proper historical context, so I will say little about the matter here. Frankly, some of the arguments made in “Statement on Polity” in support of the primacy and autonomy of dioceses are ludicrous. The bishops point out, for example, that voting is by dioceses in the House of Deputies (though not in the House of Bishops, I might add), and all diocese get equal votes. So what? One could make a similar statement about the U.S. Senate, but one would be wrong to conclude from it that states are supreme in the United States of America and can secede at will. The bishops are even misinformed in thinking their dioceses members of the Anglican Communion. National and regional churches are Communion members. There are a few extra-provincial dioceses included, but the dioceses of the bishops who signed “Statement on Polity” are not extra-provincial; they are part—an indivisible part—of The Episcopal Church. It makes no more sense for dioceses to be signing an Anglican covenant than it would be for Texas to sign a treaty with the United Nations.

As a person who began life as a Presbyterian in very Roman Catholic New Orleans, I have a strong prejudice against extravagant Roman Catholic claims of authority. The Episcopal Church, I discovered, has a rich liturgy to replace impoverished Protestant practice, and that need not come with a lot of Roman Catholic baggage that I tend to view as so much nonsense. (Who does the Bishop of Rome think he is anyway?) Imagine my surprise when I discovered that the introduction portion of “Statement on Polity” cites a document from the Anglican Roman Catholic International Commission to this effect: “Decisions taken by the bishop in performing this task [the exercise of episcope within a local church] have an authority which the faithful have a duty to receive and accept.” I acknowledge no such duty, and any awe I might have of bishops is tempered by the observation that the variability in episcopal performance seems comparable to that found in any other profession. If God’s Angel of Death were to visit all bishops tonight, Christianity would still be alive and well tomorrow, and excellent Christian teachers would not have been wiped from the face of the earth.

Whereas the episcopal authors of the document are much taken with their own office, they are surprisingly dismissive of the office of the Presiding Bishop. It is difficult not to suspect that the sex of the current office holder has something to do with this, but I am willing to grant them the benefit of the doubt on this score. (One has to wonder if the absence of Communion Partner bishop Geralyn Wolf’s signature isn’t more than a coincidence, however.) In any case, the office of Presiding Bishop is trivialized in overt and surreptitious ways. The authors point out that the Presiding Bishop’s authorizing a bishop to act in unorganized territory not yet a diocese requires the consent of the House of Bishops. While true, its relevance is unclear. The role of the Presiding Bishop is surely substantive here. If the Presiding Bishop had no discretion in the matter, full authorization would be given directly by the House of Bishops. The Presiding Bishop’s role in the deposition of a bishop is of a similar nature.

The bishops make much of their position as “ordinary”—the word is used only once in the constitution and canons, and only in a rather oblique reference—and the fact that their authority receives little attention in the church’s governing documents, whereas the role of the Presiding Bishop is rather more clearly spelled out. The Presiding Bishop does not have a see, say the bishops, and therefore (apparently) lacks their own “inherent authority.” (The Presiding Bishop has jurisdiction in the Convocation of the American Churches in Europe, of course, which is a diocese in everything but name, and it is not, as the authors suggest, “exercised with the consent of other Anglican bishops having authority in Europe.”) Clearly, the authors view having a see as conferring some mystical authority from God, which authority the authors do not want to grant to the Presiding Bishop. The Presiding Bishop is necessarily a bishop, however, and, in former times, actually served as a diocesan bishop. It is a relatively recent innovation that the Presiding Bishop does not so serve—the exercise of jurisdiction now is mostly symbolic—because the responsibility of heading a diocese and exercising the powers of the Presiding Bishop was found to be too much work for one person. (Canon I.2.3(a) requires that a person elected Presiding Bishop “tender to the House of Bishops a resignation from the Bishop’s previous jurisdiction.”) The ministry of the Presiding Bishop is not greater or lesser than that of a diocesan bishop—note that not all signatories to “Statement on Polity” are diocesan bishops—it is simply different.

What all this is about, of course, is the denial that the Presiding Bishop has metropolitan authority, which is to say, authority to tell diocesan bishops what to do. This is undeniable, of course, but it is also irrelevant. The lack of an archbishop in the American church does not mean that the church is not hierarchical, nor does it mean that dioceses are free to leave the church at will. It does mean that the church is not hierarchical in precisely the same manner as, say, the Roman Catholic Church. Americans would not readily tolerate a despot with papal powers, and the lack of an archbishop is simply a reflection of, in the words of the Chicago-Lambeth Quadrilateral, “The Historic Episcopate, locally adapted in the methods of its administration to the varying needs of the nations and peoples called of God into the unity of His Church.”

The bishops emphasize their view of the limited authority of the Presiding Bishop by criticizing the actions of Katharine Jefferts Shori in recent church disruptions:

We emphasize this significant feature of our governance at the outset because in the recent controversies surrounding the withdrawal of several dioceses from The Episcopal Church the Presiding Bishop and others acting on her behalf, including the Presiding Bishop’s chancellor, have purported to act within dioceses, to “recognize” or “de-recognize” diocesan officers and to speak on behalf of The Episcopal Church in civil litigation involving dioceses. We respect the desire of the Presiding Bishop to provide pastoral assistance in these areas, and indeed we too want to do all that we can to reach out to persons in those dioceses who wish to remain in The Episcopal Church. But neither she nor anyone acting on her behalf has constitutional authority to act without consent from the Ecclesiastical Authority except in unorganized territory.

I have a special interest in the view expressed here because my diocese (Pittsburgh) is one of those to which the bishops refer. Others have commented that the bishops do not express an opinion on the recent “realignments,” but it does not require great powers of inference to conclude that the bishops have some sympathy, if not for the realignments themselves, then at least for the view that dioceses have the right to remove themselves from The Episcopal Church in search of a more sympathetic province. They speak, after all, of the “withdrawal,” rather than, say, the “purported withdrawal” of dioceses, yet they refer not to the Presiding Bishop’s acting, but to her “purported” acting. (The bishops’ statement is somewhat garbled, but the point is clear. Surely, the Presiding Bishop acted, and surely the dioceses voted to withdraw. Whether the Presiding Bishop acted properly and whether the withdrawal was proper, and therefore effective, are the real questions here.)

What has the Presiding Bishop done that has so upset these bishops? In the Diocese of San Joaquin—her role was similar in Fort Worth and Quincy—she merely acknowledged the obvious, namely that the bishop and all members of the standing committee had left The Episcopal Church. She also played a role in organizing a convention to elect a provisional bishop. It is not hard to justify these (actual) actions by reference to Canon I.2.4(a)(1) (where the Presiding Bishop is authorized to speak “for the Church as to the policies, strategies and programs authorized by the General Convention”) and to Canon I.2.4(a)(3) (“In the event of an Episcopal vacancy within a Diocese, [the Presiding Bishop shall] consult with the Ecclesiastical Authority to ensure that adequate interim Episcopal Services are provided.”) Of course, the Presiding Bishop had to recognize that the standing committee of the Diocese of San Joaquin had no members, and so she acted in conjunction with an empty committee. (Some will consider this logic a stretch, but is no more a stretch than Congress regularly uses to justify regulating all manner of activity not so clearly allowed by the Constitution.) The problem faced by the Diocese of San Joaquin and the Presiding Bishop was a troublesome one. Absent the provision of Canon I.2.4(a)(3), no one in or out of the Diocese of San Joaquin had the explicit right to call a special convention. What the Presiding Bishop did was reasonable and, I think, proper. What do the signatory bishops think should have happened? Do they think the Diocese of San Joaquin should simply have been written off because no one had “authority” to do anything? How pastoral (or sensible, for that matter) would that have been for the church’s “Chief Pastor and Primate”? In Pittsburgh, the situation was somewhat different, as one member of the standing committee remained in the church. The Presiding Bishop was not needed to call a special convention. Nonetheless, with two entities claiming to be “the Episcopal Diocese of Pittsburgh,” The Episcopal Church needed to pick one, if only to determine where to send the mail! Surely as “Primate,” the Presiding Bishop had the “inherent” right to figure that out. (Admittedly, the “choice” of “dioceses” had legal implications.)

The matter of how hierarchical The Episcopal Church is is not really a matter of whether or not the Presiding Bishop is an archbishop with the power to override decisions of diocesan bishops. Not even church liberals claim that the Presiding Bishop is the highest authority in the church. The supreme institutional authority in The Episcopal Church—primary allegiance to God can guide individual conscience, but is unhelpful in running an actual church—is the General Convention, and anyone with a sixth-grade reading ability and a copy of the church’s constitution cannot conscientiously conclude otherwise. Extra-constitutional appeals by bishops to the “inherent authority” of ordinaries is merely an attempt to weasel out of their vows. In an earlier post, I discussed how dioceses are constrained by the general church, and, for brevity’s sake, I will not reproduce that argument here. (See “Unqualified Accession.”) Likewise, bishops are held accountable by the general church and can, as we have seen in the case of Robert Duncan, be deposed for subverting it. That the process is cumbersome and little-used is unfortunate.

General Convention can, in fact, do anything it chooses to do and can change the church in any way that suits its fancy. It can give power to or remove power from bishops or dioceses. It can cede power to the Anglican Communion, though it has not done so and, God willing, will not do so. This is what makes our church hierarchical. If our church is defective as a hierarchical church, it is only in that church discipline is difficult to enforce. In a sense, however, this is true of any church not backed directly by the power of the state. The constitution can demand an oath of obedience from a bishop, but it is hard to make the bishop obey. The secular courts come in handy here. Pittsburgh Episcopalians will not need to visit Robert Duncan’s office carrying torches and pitchforks to encourage his departure. The Sheriff with do that for them.

Of course, the Communion Partner bishops do not really believe (or do not want to believe) that our church is autonomous, and they have offered a bogus argument to justify their belief, to which I now want to turn.

The bishops have again raised the issue of the preamble of the Episcopal Church constitution. I first heard their argument—I thought it ludicrous then—from Bishop Robert Duncan in September 2003. This is what the bishops write: “The preamble to our Constitution identifies continuing constituent membership in the Anglican Communion as one of the fundamental conditions on which our governing agreement is based. The failure to maintain that membership would plunge The Episcopal Church into a constitutional crisis.” Of course, the preamble does no such thing (and membership in the Anglican Communion is a pretty fuzzy notion anyway). Recall that the preamble, which was only adopted in 1967, says

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.

The first thing to notice here is that the preamble neither establishes anything nor authorizes anything. The preamble simply states what are taken to be facts, including what it is a preamble to. The church is a member of the Communion, it says; the preamble does not make it so, nor does it imply consequences should it, at some future time, not be so. Since the bishops quote White and Dykman’s Annotated Constitution and Canons as an authoritative explicator of the church’s governing documents, it is appropriate to quote what those authors have to say about the preamble. I quote this at length because I am tired of hearing the strange interpretation given the preamble by people who are likely misreading it intentionally and are either ignoring historical facts or hoping that others will do so. What follows is taken from pages 4–7 of Annotated Constitution and Canons. I have omitted footnotes citing convention journals.

The immediate occasion of the composition of the Preamble was a resolution submitted to the House of Bishops at the Convention of 1964 by its committee on memorials and petitions. The committee, having received memorials from the Dioceses of Chicago, Montana, New Jersey, and South Florida, petitioning for a change of the name of the Church, requested permission to prepare

a simple resolution on the subject, to be presented to the House at the next session thereof, without explanatory material, and to be voted on without debate.

Permission was granted, and the following resolution was submitted, moved, and adopted:

Resolved, the House of Deputies concurring, that the official name of this Church be changed by expunging the word “Protestant” from its title; and that steps be taken to effect the necessary constitutional and canonical changes in harmony therewith.

The resolution was the last in a series of efforts to change the name of the Church that had extended over almost ninety years. The first direct attempt was made in the House of Deputies in the Convention of 1877. It was defeated overwhelmingly. For forty years before 1877, however, the matter had been the subject of debate and often acrimonious controversy in the church press, the High Churchmen of the day advocating a change lest the term “Protestant” obscure the Catholic heritage of Anglicanism, while their Evangelical opponents clung tenaciously to a name which they felt affirmed the Reformation experience of the Church of England.

The controversy projected itself, at least indirectly, into the Convention of 1844. The church press reported that the Rev. Dr. Samuel F. Jarvis of Connecticut, an eminent, if somewhat abrasive, historical scholar, who had been one of the first two professors at the General Theological Seminary in 1819, had presented credentials in the House of Deputies describing himself as a “Presbyter of the Reformed Catholic Church.” His right to be seated was challenged by a lay deputy from Ohio, then a diocese reflecting the strong Evangelical opinions of Bishop McIlvaine, on the grounds that Dr. Jarvis had “joined another Church.” Jarvis was seated, but the episode produced a resolution offered in the House of Deputies:

That the practice of omitting the full name of the Church in printed Documents, or of substituting any other, is derogatory to the Protestant character of our Church, and of evil tendency.

Action on the resolution was postponed, and it was subsequently withdrawn by its proposer.

The rejection of the move to change the name of the Church in 1877 did not halt the agitation. On the contrary, the issue appeared regularly in Convention thereafter, having a longer life in Convention discussions than any other in the history of the Church. In 1886, for example, one resolution proposed to expunge the words “Protestant Episcopal” from the Church’s name as “too narrow and exclusive a designation of a Branch … of the One Holy Catholic and Apostolic Church,” and, therefore, “pernicious and harmful,” while another resolution sought to change the name to “The American Catholic Church.” Change was defeated in this Convention by a much smaller margin than in 1877, but “The American Catholic Church” persisted as a suggested alternative and appeared again in 1901. In that Convention, as in 1895 and later in 1910, the attempt to change the name was extended to appropriate alterations on the title page of the Prayer Book and in the Declaration of Conformity prescribed by Article VIII of the Constitution.

Partisan controversy gradually diminished after 1910, and efforts to substitute other names for the Church’s official designation were abandoned in favor of simply removing the word “Protestant.” In 1955, for example, a resolution was offered and defeated in the House of Deputies that illustrates the changes sought in the final years before 1964. It was moved that

The name of this Church shall be The Episcopal Church in the United States of America; That Article VIII of the Constitution be amended by omitting from the Declaration required of those to be ordained or consecrated the word “Protestant”… That the title page of the Book of Common Prayer … be amended to describe the Church as The Episcopal Church in the United States of America.

When the resolution passed by the House of Bishops in 1964 proposing the removal of the word “Protestant” reached the House of Deputies, it was referred to the committee on amendments to the Constitution. By that time, the abatement of past churchmanship controversies left the chief obstacle to such change the possibility of legal complications, a matter that had been raised as early as 1877. The committee requested its chairman, the Very Rev. John C. Leffler of Olympia, and its secretary, Mr. David E. Bronson of Minnesota, to draft a suitable amendment that would avoid any legal problems. During the ensuing deliberation they accepted a proposed amendment offered privately by Dr. Clifford P. Morehouse of New York, President of the House of Deputies. This consisted of the Preamble in the exact form in which it was later adopted. The committee approved the proposed Preamble unanimously and presented it to the House of Deputies. After defeating two amendments which were offered during the debate, one of which sought to substitute the resolution as originally presented and the other to amend the text by changing the order of the first two lines, the House of Deputies voted to recommend to the Convention of 1967 the adoption of the Preamble. The House of Bishops concurred.

When adopted by the House of Deputies in the Convention of 1967 by a very large majority in both orders, an action with which the Bishops concurred, the Preamble became, in the words of the resolution presenting it, “an integral part of the Constitution.” Out of the long and often acrimonious controversy over the name of the Church, came not only a peaceful resolution of that issue, but also a valuable and succinct definition of the nature and structure of the Anglican Communion, with an affirmation of the constituent membership of the Episcopal Church therein.

There remained the matter of the use of the word “Protestant” in the Declaration of Conformity and on the title page of the Prayer Book. In the Convention of 1976, the House of Bishops proposed the deletion from the title page of the proposed Prayer Book the words “Protestant Episcopal Church in the United States of America otherwise known as.” The Deputies concurred, and the effect was to leave simply the words “According to the use of The Episcopal Church.” The proposed amendment was adopted by both houses in the Convention of 1979. Likewise, in 1976 the Committee on Amendments to the Constitution of the House of Deputies proposed an amendment to Article VIII of the Constitution, striking the word “Protestant” before the words “Episcopal Church.” It was adopted by the House of Deputies and the House of Bishops concurred. Both houses gave final approval in the Convention of 1979.

The point of all this, of course, is that no one was even thinking about the Anglican Communion when the preamble was adopted. It was adopted to settle on the name—alternative name, actually—of the church. Debate would have been much different had members of the General Convention thought they were somehow subordinating their church to a foreign ecclesiastical body. The Episcopal Church is not formally obligated in any way to the Anglican Communion. God willing, that will continue to be the case.

I personally do not understand why some Episcopalians (and new former Episcopalians) have such a need to be part of the Anglican Communion. (See my post “Do We Need the Anglican Communion?” The recent pining for the Anglican Communion does not really seem to be about Christian unity, as there no corresponding call from the same folks for unity with Methodists or Presbyterians. I believe that the desire for greater commitment to the Anglican Communion is really a political ploy by minority elements of The Episcopal Church to pressure the church from the outside to grant concessions that cannot be won in the General Convention. As such, the effort is disingenuous and mean-spirited.

In any case, it would be destructive both to The Episcopal Church and, I think, to the Anglican Communion if an Anglican covenant could be signed by dioceses and rejected by their provinces. One church observer recently called the very idea of this “bizarre.” (See ENS story here.) I could not agree more and do not even want to think of the implications of such a strange development. We already have a Communion poised to split over theological differences. Allowing dioceses independently to accept or to reject an Anglican covenant has the potential to split individual churches as well. Surely, Rowan Williams knows that even his own Church of England is not immunized against such fracture. It is ironic that the Anglican covenant, which is intended to tie churches of the Communion closer together, could be the trigger for an anarchy that destroys not only the Communion, but also its constituent churches.

Two years ago, I suggested that, if we need an Anglican covenant, we should concentrate on producing an agreement that regulates relations between churches—not a document that sets up a system to punish “bad” behavior, but a document that says what bad behavior is. Of course, I believe that subverting sister churches, by any means, is bad behavior. I am beginning to think that “The Covenant We Do Need” suggests what we actually need now. What we surely do not need is the doctrinal warfare and ecclesiastical extortion in which certain members of the Anglican Communion are now engaging. General Convention had best not engage in this warfare nor succumb to the extortion.

Let me close then with some random comments on the footnotes of “Statement on Polity” that may even offer some comic relief. Why, I wonder, do the bishops, in their first footnote, cite the 1979 prayer book as they do? Rather than citing the book from Church Publishing, the edition from Oxford University Press is cited. Do these people have such low regard for their church that they cannot even bring themselves to cite (“promote”?) the prayer book published by it? Another curious footnote is #13. Pages 12 and 29 of Annotated Constitution and Canons is referenced here. As one might suspect, the bishops are connecting ideas out of context as they try to establish the independence of dioceses. It really matters not that dioceses might have been independent entities before entering into union with the General Convention. Just as Texas and Hawaii were unquestionably independent states before joining the Union, they are now just as unquestionably not independent and are not free to leave the Union.

Alas, so much of “Bishops’ Statement on the Polity of The Episcopal Church” is either nonsensical or simply irrelevant. Arguably, the Communion Partner bishops and the self-important Anglican Communion Institute are just as irrelevant.

Update, 3/10/2013. In an agreement reached in January 2013—see press release here—seven of the bishops endorsing the“Bishops’ Statement” admitted that its analysis of Episcopal Church polity “is likely a minority opinion.”

Catching Up on Calvary Litigation Documents

When I wrote my last post on the Calvary lawsuit against deposed bishop Robert Duncan and his allies—see “A Hearing at Last”—some of the court documents relevant to the discussion had not yet found their way to the site of the Allegheny County prothonotary. Now that those documents are available, I want to make others aware of them.

Although not all documents that are a part of Calvary Church vs. Robert Duncan, et al., are available on the Web, many are. Some time ago, however, they were made more difficult to find. In particular, one needs to know the specific case number of the litigation to access a complete list of available documents. That case number for the Calvary litigation is GD-03-020941. This number has to be entered at the top of the Select CaseID page. Upon clicking the OK button at the bottom of the page, visitors are taken to the page about the Calvary lawsuit that has links to documents under the heading “Docket Entries.” Most of the documents are PDFs from scanned paper documents, which is why, in my blog posts, I have usually linked to PDFs generated from such documents by the OCR function of Adobe Acrobat.

Well, so much for that little housekeeping digression. On to substance.

One filing I did not mention earlier was from the plaintiffs, as it is short and unremarkable. Titled “Consent to Intervention by The Episcopal Church” and filed April 16, 2009, the three-page document makes the unsurprising statement that the plaintiffs have no objection to the entry into the case of The Episcopal Church. In fact, of course, they welcome it. You can read the document here.

The other new documents were all filed April 21, 2009. Three are motions dated April 14, 2009, along with corresponding orders signed by Judge Joseph James on April 17, 2009. They seek to admit each of three attorneys to the case as lawyers representing The Episcopal Church. (The motions seek to admit the attorneys pro hac vice, which is to say, to admit them to represent a client in a jurisdiction in which they are not licensed to practice. Attorneys for the defendants had argued against allowing The Episcopal Church to enter the case.) The attorneys are David Booth Beers, Soyong Cho, and Mary Kostel, all of the Washington law firm Goodwin Proctor LLP. Beers, of course, is the Presiding Bishop’s chancellor. Kostel is chancellor of the Diocese of Washington and special counsel to the Presiding Bishop for property litigation and discipline. (You can read the motions and orders here for Beers, Cho, and Kostel.)

The remaining documents reflect the court orders on which I reported earlier.

On January 9, 2009, plaintiffs asked the special master to deliver diocesan assets to the continuing Episcopal Church diocese in accordance with paragraph 1 of the October 2005 stipulation. The defense, not surprisingly, objected, filing “Motion to Strike Request to Special Master and Notice to Plead” on January 20, 2009. On April 17, Judge James signed the proposed order provided in that document, changing it significantly. That order reads:

AND NOW this 17^th day of APR 2009, upon consideration of the Motion to Strike Request to Special Master and Notice to Plead, the said Motion is GRANTED and it is ORDERED that the Request to Special Master and Notice to Plead are striken denied.

Likewise, defandants’ attempt to keep Diocese of Pittsburgh chancellor Andy Roman out of the case resulted in this order, modified from that proposed by the defendants:

AND NOW this 17^th day of APR 2009, upon consideration of the Motion to Strike Praecipe for Entry of Appearance, the said Motion is GRANTED and it is ORDERED that the Praecipe for Entrance of Appearance of Andrew Roman on behalf of “The Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America” is striken denied.

And so we are now ready to determine if, as Calvary Church, et al., contend, the October 2005 stipulation has been violated by the defendants, requiring that diocesan assets be returned to representatives of The Episcopal Church.