January 29, 2009

The Dennis Canon Was Adopted

It has become popular recently in certain circles to foment doubts as to whether the so-called Dennis Canon was actually adopted by General Convention in 1979. Matt Kennedy, in ¶15 of his affidavit filed in Diocese of Central New York vs. Good Shepherd, claimed that White & Dykman (the Annotated Constitution and Canons of the Episcopal Church) notes a “defect in the adoption” of the canon on page 296. This is inaccurate. The authors note that the adoption of the canon does not appear in the “Concurrent Actions” section of the 1979 Journal of General Convention. They express no doubt about the adoption of the canon itself.

There remains some confusion, nonetheless, and I would like to clarify a number of things, and will take them point by point.

First of all the “Dennis Canon” actually involves two canons. Resolution D-24 of the 1979 General Convention amended Canon I.6 to render explicit the implicit trust relationship under which the church had functioned since its foundation, whereby parishes hold property in trust for the diocese and general church. The same resolution also amended Canon II.7 to specify the types of churches (that is, whether parish or mission) to which Canon I.6 would apply.

Second, and perhaps most importantly, the canonical amendment was not controversial at the time of its adoption. It was proposed in response to a suggestion from the US Supreme Court in Jones v. Wolf that a general church could clarify an explicit binding trust relationship concerning church property either by having all churches change the titles and deeds to express it, or by making a change to the governing documents of the general church. The Dennis Canon was a direct response to this suggestion, and it had wide support. The record in the Journal shows none of the usual marks of controversy: no roll call vote was required in the House of Bishops, nor a vote by orders in the House of Deputies. The only amendment to the original proposal, made in the House of Bishops, was to hasten the effective date of the resolution; this amendment was adopted easily.

Third, the Journal of the Convention clearly (in its own rather complicated way) shows that Resolution D-24 was adopted in both Houses. This is also contrary to Kennedy’s assertion in ¶19 of his affidavit, that the Journal “does not indicate that this so-called Dennis Canon passed both houses of that Convention.”

On the contrary, the Journal shows that the House of Bishops approved the changes to the canons, amended to add the change in effective date, on the Fifth Day of the session. This appears in the Journal on pages B-60 and 61. The House of Bishops communicated this action to the House of Deputies in HB Messages #75 (the amendment to Canon II.7) and #76 (the amendments to Canon I.6 with the change in effective date). On the Tenth Day, the Journal shows (page D-154) that the House of Deputies received and concurred with these messages. The Journal does not show the message number for the communication of their concurrence to the House of Bishops, but the Eleventh Day minutes of that House (Journal page B-144) indicate receipt of HD Message #204 informing the Bishops that the Deputies had concurred with HB Messages #75 and #76 on Resolution D-24 — Amend Canon I.6 and Canon II.7. George Conger, in a search of the Archives of the Episcopal Church, stated in ¶17 his affidavit in DCNY vs. Good Shepherd, that he found independent corroboration for the existence of HD Message #204 (though not a copy of the message itself) on page nine of a print shop order summary showing that “resolution D-24 as amended was adopted by the House of Deputies, and message 204 memorializing this action was sent to the House of Bishops.” While bemoaning the state of the archival records for this entire convention (and they are, frankly, appalling), and the paucity of back-up material, he does report that he found documentary evidence of the adoption of the resolution in the House of Bishops.

So there appears to be no reason to doubt that the Resolution was adopted and concurred. It was so reported in the actions of each House in the published edition of the Journal of the General Convention 1979, in the next printed edition of the Constitution and Canons as amended, in the 1982 revision of the Annotated Constitution and Canons, and all subsequent editions of the Constitution and Canons as amended in subsequent sessions of General Convention ever since.

Still, a listing of the adoption of Resolution D-24 is missing from the 1979 Journal in its “Concurrent Actions” section — exactly the omission to which White and Dykman referred. But what is this “Concurrent Actions” section?

Because of the way resolutions are adopted in the General Convention — acted upon first in one House, and if approved passed through a legislative committee to the other for concurrence — the minutes of the meetings of the separate Houses form a complicated web of cross references, as can be seen in the account above showing the back-and-forth trail of evidence of action, reaction, and communication. Over the years different editors have developed various ways to make the final results of the Convention — most especially the actions adopted — convenient to find. At the 1979 Convention this was done by repeating the minutes germane to any given resolution in each House in a separate section of the Journal arranged by topic. This was, in theory, a convenient way to find all of the resolutions concerning social issues or liturgy, for example, neatly gathered together. Obviously this is a very repetitive way of working, duplicating material that already appears elsewhere in an already cumbersome volume, and other more efficient summary mechanisms have been adopted since. It is also an invitation to additional editorial error, and this is precisely what appears to have happened in the case of Resolution D-24, which was certainly concurred, but doesn’t appear in the section of concurrences.

I have a theory to offer for the reasons for this omission. As an editor, in particular a past editor of the Journal of General Convention itself in 1991, assisting the late Charles Scott in that task — I have a grasp of the way an editor of this particular volume is forced to think, and the complexities with which one must wrestle. One question that arises, when producing the summary of concurrent actions, whatever form it takes, is the order in which resolutions will be reported, and to what categories they will be assigned.

While the 1979 editor chose to list many canonical changes under the heading “Canons,” there is also a note that some canonical changes are listed elsewhere under more relevant topics which the particular canons address. An additional problem was created in that Canon II.7, amended in part by resolution D-24, was also subject to another resolution that added a new first section to the same canon. This, which also dealt with church property, was classified not under “Canons” but under “Structure” — and I really am not sure why, unless that was the legislative committee that first dealt with that part of the canon. It appears to me that the original intent was to include the canonical changes in D-24 in this same section — indeed the page reference at the concurrence points to this very place — but that in the paper shuffling necessarily involved in such an editorial operation, the collated text from the minutes of each house did not make it into its final position. Thus, there is no question about the actual adoption of the resolution — the minutes in the Journal in each House make that clear — and all the “Concurred Actions” section would have shown is the same text drawn together under a single heading.

This omission is confusing, but it in no way affects the validity of the adoption of the amendments to the Canons. It is purely an editorial error concerning an altogether supplementary portion of the Journal of General Convention.

Tobias Stanislas Haller BSG


Jim Naughton said...

Thanks, Tobias. One can spend one's life correcting the misinformation generated by the Anglican right. And sometimes it is just not worth the trouble. But I am glad you have set the record straight here.

Jim Naughton

John B. Chilton said...

In one of those strange coincidences I had read Conger's account right before reading yours. (And I wasn't even surfing for the Dennis Canon.) It's good that you two come to the same conclusion.

Brother David said...

It seems that the usual detractors are speechless!

Well done.

You may wish to wade through A Legal Fable. You provide his first link.

Anglocat said...

Tobias, thanks so much for shedding some light on this minor mystery. I call it minor because, as I suggested in our prior discussion, legally speaking, it is--from an internal polity perspective of course, it's important that justice be known to have been done.

Still, the notion that a secular court should scrutinize the process by which votes are recorded and registered in a church for "validity" consistent with the First Amendment would, to steal from Robertson Davies, make a cat laugh.