Of “Revision” of Marriage Rites

The debate over whether the proposed marriage rites authorized under Resolution B012 of the 2018 General Convention constitute “a revision of the BCP” or “trial use in accordance with Article X” is moot. Article X provides for the authorization of trial rites "throughout this church" as part of the revision process of the BCP. 

So when someone says these rites were "not proposed as a revision" that only means they were not proposed under the first part of Article X as a “first reading” to be approved finally at the next session of General Convention. That is a procedure only undertaken when rites have been tested and are ready for their final form

It is not at all unusual for a rite to be authorized in the manner of B012. Since the early 60s, in the leadup to the wholesale revision of the BCP in 1976/79, the various revisions of individual liturgies were published, promulgated, and authorized “for trial use” until, in 1976, the “first reading” of the whole new BCP was approved, and the same (with only a couple of minor emendations to take account of the approval of the ordination of women) ratified in 1979. The marriage rites are now in the exactly the same situation as the numerous revisions of other rites, including matrimony, that were published from 1964 on; that is, as Article X says, they are authorized “for trial use throughout this  Church, as an alternative at any time or times to the established Book of Common Prayer or to any section or Office thereof,” as “a proposed revision of the whole Book or of any portion thereof...” (emphasis mine.)

Meanwhile, part of the reason Bishop Love of Albany has been found wanting is due to the marriage canon (I.18.1), which states that all clergy may solemnize marriages using “any of the liturgical forms authorized by this Church.” The rites are unquestionably authorized, and Bishop Love interfered with that clerical right, though he had absolutely no need to do so. 

Tobias Stanislas Haller BSG

One Last Question on the Canon Change

Continued from here

Bishops Benhase and McConnell have posted an essay concerning the proposals coming to the General Convention. They are very concerned about the proposed Canon change, and observe this:

We focus here on good order. Resolution A036 proposes that all clergy will henceforth conform to “these canons concerning the solemnization of marriage,” rather than to “the laws of this Church governing Holy Matrimony.” The manifest problem that this revision seeks to get around is that the Episcopal Church will continue to have contrary laws governing Holy Matrimony in the Book of Common Prayer, a constitutional document. There are constitutional provisions for revising the prayer book. Perhaps that is the conversation we really need to have, but it is hard to see how a canon that directs clergy to disobey the prayer book might help that discussion.

This represents an almost compete inversion of what the proposed canon change will do. Far from "directing clergy to disobey" the BCP, the canon change addresses the current situation, in which we have clergy, operating under "generous pastoral provision," solemnizing same-sex marriages in those states in which the civil law permits, in violation of the current canon, and, if you accept the logic of Benhase and McConnell, in conflict with the BCP as well. It is true that the canon change will do nothing to change the BCP -- or to authorize any other liturgy, for that matter -- but it will remove the problem of clergy being in violation of the canons. And it is only the canon we are proposing to change.

So if the bishops are interested in "good order" as they say, this is a step they should applaud. It introduces no new conflict with the BCP -- that conflict is already there, if you accept their logic -- but it does remove the canonical dissonance, which is actionable under Title IV, in spite of the wink and nod of "generous pastoral provision." That no one is going to take clergy to ecclesiastical court, in those dioceses in which the bishop has permitted use of provisional rites for solemnizing same-sex marriages, is a nice promise, but from a canonist's perspective it is disorderly. We desire good order rather than ambiguity.

For there is no need for such ambiguity. The canon change will not alter the BCP, or the status of the BCP, but it will remove a conscientious burden for those clergy, and some bishops. This was, after all, one of the explicit charges to the Task Force, and the proposal offers a canonical solution to a canonical problem. There will be plenty of time to consider amending or supplementing the BCP, including at this session of General Convention.

When it comes to that liturgical side, the proposed canon change restores language that was part of the canon during the last cycle of prayerbook revision (in 1973), precisely to provide for the use of the trial rites that were issued as part of that process (the earlier form of the canon limiting the rite to the one in the BCP.)

So this canon change actually advances the "good order" the bishops are calling for.

Tobias Stanislas Haller BSG

UPDATE

And, by the way, the BCP is not "constitutional." Only the Constitution is constitutional. The BCP is sometimes mistakenly called "constitutional" because its amendment process takes two conventions -- but unlike the Constitution itself, amendments to the BCP can be "tried out," as the Constitution describes. Amendments to the Constitution itself, however, are null until approved by two conventions, then they are the law.

This problem arises when people treat the BCP as a law-book instead of a liturgical book. (It has some legal standing where the rubrics are concerned.) Moreover, the BCP itself provides (on page 13) for other liturgies to be authorized. These liturgies would not be needed if they were not in some way different to the BCP, so to argue that such liturgies have to be congruent to the BCP doesn't stand. Besides that, the provisional liturgies for same-gender blessings do not "contradict" the BCP; they simply offer a liturgy for something the BCP did not conceive. The BCP is descriptive, not proscriptive, when it comes to marriage -- otherwise all second marriages (permitted by canon) would be ruled out because the BCP says marriages are "life-long."

TSH

Marriage Canon Q and A Part 2

...continued from Part 1.

Doesn't the canon change stand in conflict with the BCP? Since the BCP supersedes the Canons doesn't this set up a conflict?

As noted in the earlier round of questions, the proposed canon does not change the doctrine of the church on marriage, nor is that the point of the canon change. The issue isn't that "the BCP supersedes the Canons" -- but they are different documents governing different aspects of marriage. For example, the canons provide for remarriage after divorce -- something which is nowhere mentioned as possible in the BCP, which on the contrary (in the Catechism) describes marriage "as life-long." One could see this as a conflict, or recognize that the intent of the two authorities is different. The purpose of the canons is not to lay out a doctrine of marriage, but to describe procedures and rules and requirements for marriage. It is not about "what marriage is" but what the cleric and the couple must do in order to marry. If -- and it is an "if" -- the church continues to authorize liturgies for same-sex marriages, then the canons need to provide procedures that address that reality. The TFSM was charged with the task of addressing this pastoral reality in states where same-sex marriage is legal, and the proposal offers a response, removing the obstacle some feel the current canon presents.

Why do you propose removing the requirement to sign the Declaration of Intention from the Canon?

It's probably helpful to begin by understanding how this requirement to sign a document got into the canons in the first place, as that in part explains why it is no longer necessary in that form (a document is still required, but the content is changed).

The requirement that the couple sign a declaration was introduced to the canons in the late 1940s, as part of the gradual accommodation of the church to remarriage after divorce. As a common ground for divorce (or annulment) is "defective intent," having a couple sign a declaration of their "intent" was felt by many to be a safeguard against later claims on that ground. This language was originally in the canon on divorce, rather than the canon on marriage.

The other circumstance at that time was that the marriage liturgy in the 1928 Book of Common Prayer lacked any of the language now found in the prologue to the current (1979) marriage rite concerning the institution of marriage. So having this repeated in the canons is, to some extent, redundant, as these purposes are now spoken publicly in the sight of the congregation. Perhaps needless to say, the church had functioned quite well without any such statement of purposes for marriage in either the liturgy or the canons for over a century.

Still, to cover the legal ground, some form of declaration is still desired. The one remaining difficulty with the current declaration, as the Task Force essay on the canon notes, is that it is cast in a creedal format: the couple must attest that they "believe" certain statements about God's intention and will concerning the institution of marriage. This creates a practical problem in some circumstances, to which I can speak from personal experience. As a priest, I am regularly faced with having to instruct people about marriage. That includes addressing the allowance, under the canons and the rubric, for the marriage of a Christian to a non-Christian, who could be a Buddhist or an atheist. One can presume that the non-believing or other-believing partner is marrying in a Christian ceremony for the sake of the conscience or wishes of her spouse (or family). She may not believe in God or that "God" has "intentions" or a "will" for either the institution of marriage or her own particular marriage. Should she be required to sign a declaration stating belief in that which she does not believe? Should the cleric refuse to solemnize the marriage if she is unable to affirm "belief" in an arguably un-scriptural notion -- at least as some understand it? I would add that the BCP description of marriage is not even exactly the same as that of the Roman Church -- so should a RC spouse be forced to affirm a description of marriage that is not what her church teaches?

These are real questions and the Task Force has sought to remove this obstacle from the path of a couple in such a situation. Unlike in 1949, the causal language is part of the liturgy -- publicly stated as an exhortation -- but no one is required to subscribe to it as a statement of belief. As the official explanation in resolution A036 says, the current wording of this declaration

...is to some extent problematical when one member of the couple may not be a “believer” at all or may come from a tradition with a different theology of marriage. It should be sufficient that the couple be instructed in, and understand the rights, duties, and responsibilities of, marriage as expressed in the marriage vows; and attest to that understanding as well as to their legal competence to marry.

Finally, as already noted, this declaration forms one of the obstacles to conscience some have felt in extending the generous pastoral support to solemnizing marriages of same-sex couples in places where the bishop approves and the civil law allows. This is an obstacle the Task Force was explicitly asked to address in its charter, so that is an additional reason to remove a statement which some, in conscience, would find very difficult, if not impossible, to sign.

So what about "defective intent"?

As noted above, this remains a reality. So to meet the legal concern about defective intent, the couple is asked to sign a declaration that, in addition to covering all of the canonical requirements (including competency, formerly solely the responsibility of the cleric, and now offering the cleric some cover should the couple later be found to have presented inaccurate or false evidence of competence), states

Sec. 3. Prior to the solemnization, the Member of the Clergy shall determine, and shall require the couple to sign a declaration attesting

(a) that both parties have the right to marry according to the laws of the State and consent to do so freely, without fraud, coercion, mistake as to the identity of either, or mental reservation; and

(b) that at least one of the parties is baptized; and

(c) that both parties have been instructed by the Member of the Clergy, or a person known by the Member of the Clergy to be competent and responsible, in the rights, duties, and responsibilities of marriage as embodied in the marriage vows: that the covenant of marriage is unconditional, mutual, exclusive, faithful, and lifelong; and

(d) that both parties understand these duties and responsibilities, and engage to make the utmost effort, with the help of God and the support of the community, to accept and perform them.

I'm more than happy to answer any further questions that come up, so please post comments here if you have any other questions.

Tobias Stanislas Haller BSG

UPDATE: The questions continue...

Marriage Canon Change Q&A (Part 1)

The A050 Task Force on the Study of Marriage has proposed (in resolution A036) that General Convention amend Canon I.18. The proposal has sparked some conversation and many questions. Some of the conversation is less about the proposed canon change and more about the theological and historical papers that accompany and inform it, and I will address some of those issues separately. But I would like to answer some of the questions, and correct some of the misapprehensions, concerning the proposed canon change, as best I can.

First, though, a disclaimer. Although I served as a member of the Task Force (and as its secretary) I am writing here solely on my own initiative, and other members of the Task Force may have opinions different to mine. But as I was one of the members most closely involved in the creation of the "Biblical and Theological Framework" and the wording of the canon, I think I can offer some perspective concerning matters of "original intent" whatever interpretation another may choose to give to any particular wording.

So, with that established, on to the questions. (And I will present what follows in dialogue format, which is much how it happened in the various threads, blogs, and listservs in which much of what follows originally appeared.

Does the proposed canon change alter the church's teaching on marriage?

The canon does not alter the teaching on marriage as it appears in the Book of Common Prayer. In fact, the proposed change removes the one clause in the present canon that does conflict with the Book of Common Prayer, that "Holy Matrimony is a physical and spiritual union ... entered into within the community of faith." The BCP maintains that marriage involves a "union... in heart, body, and mind," not "spirit" -- and traditional sacramental theology holds that spiritual union is engendered in Baptism and nourished in the Holy Eucharist. This is not to say that a Christian couple may not find their life -- as Christians -- enriched by their marriage, just as the witness of their marriage may inspire others to "find their lives strengthened and their loyalites confirmed." (BCP 430) But since both the BCP and the canons allow a marriage in which one of the spouses is not baptized (and, according to traditional sacramental theology, the particular marriage is therefore not sacramental) any reference to "spiritual union" or "community of faith" does not apply.

So what does the canon change accomplish?

One of the charges to the Task Force was to "consult with the Standing Commission on Constitution and Canons and the Standing Commission on Liturgy and Music to address the pastoral need for priests to officiate at a civil marriage of a same-sex couple in states that authorize such." Part of the consultation revealed a consensus that the present wording of the canon made it difficult to exercise this civil function; so an effort was made to remove the language that was perceived as an obstacle. However, nothing in the proposed canon in itself authorizes or requires clergy to officiate at same-sex civil marriages, or blessings of such relationships, unless and until the church provides liturgical texts that allow it. This has happened provisionally, and this provisional status will likely continue for some time.

This opportunity to reshape the canon also allowed for some clarification and more orderly description of the canonical process. The proposed change focuses on the procedures and performance required of the clergy and the couple, which is what canons are best suited to address. The focus, therefore, is not on expounding the "church's teaching," but on the responsibilities of the clergy and the couple, focusing in particular on the vows that the couple will make to each other, and the cleric's responsibility in assuring they understand the gravity and meaning of those vows, and that they not undertake them "unadvisedly or lightly, but reverently, deliberately, and in accordance with the purposes for which it was instituted by God."

Isn't one of those "purposes" procreation?"

"Purpose" is likely a poor choice of words in this context. The more traditional language speaks of procreation as a "good" -- recognizing both that procreation is a biological reality we share with the natural world, and that, as St Augustine put it (Of Marriage and Concupiscence, I.iv), it reaches its crown of goodness when children are "generated to be regenerated," that is, as the BCP stresses, not merely to be born, but to be nurtured "in the knowledge and love of the Lord."

In all of this, it is important to note that procreation is only a factor for a couple capable of it. The BCP uses the somewhat confusing wording "when it is God's will." Earlier liturgies, such as that of the 1549 BCP, simply recognized that there were circumstances, such as advanced age in a woman, that rendered procreation impossible, and that such circumstances were not a bar to marriage. (The Theological Framework essay explores this issue at greater length.)

Now on to some more practical questions, from a Facebook thread, in particular a series of questions from Craig Uffman,.

By your reading, does the proposal allow a priest to conduct a SS marriage rite even if his bishop disallows it in his diocese?

At present, the liturgies for celebration of a same-sex marriage are provisional, and require the permission of the bishop. The proposed canon change doe not alter that; it refers to liturgies authorized by the church, and that includes the form and extent to which they are authorized. The SCLM in proposed resolution A054 asks for authorization of continued use of the "I Will Bless You" liturgy, and for use of three new liturgies with the permission of the local bishop. It is not clear to me whether they intend no longer to require local permission for the IWBY liturgy. I believe that will be clarified in the course of the work of the legislative committee and General Convention sessions, and in my opinion I think the status quo of the proviso will remain.

Does it imagine the possibility of such a rite without mentioning procreation among the purposes of marriage, as the essay argues against?

Those of us old enough to remember the 1928 BCP do not have to imagine a marriage rite with no mention of procreation. The 1928 liturgy only mentions procreation in two optional prayers. The classical 1549 liturgy mentioned procreation in the prologue, but recognized there were circumstances in which it was impossible, and so provided for omission of the prayer for children when the woman was past the years of childbearing. So, yes, it is quite possible to have a marriage liturgy without mentioning procreation, as the Episcopal Church recognized from 1789 and until the 1979 BCP was created.

To what extent is the argument for allowing same sex marriages as a rite connected to a justification based on a civil rights concern? If it is in some way so based, how is it reasonable to have a conscientious objector clause? That is, can a person refuse to marry persons on the basis of the class (same sex marriages)? If yes, how is that exemption tolerable if such discrimination becomes illegal in this nation? Or does our theology exclude the civil rights claim and posit the addition of same sex marriages as a proposal under the doctrine of reception (and therefore in some way leaving space for conscientious objection)?

While some speak of marriage equality in terms of justice -- and I would be among the last to say, given the witness of the prophets in Holy Scripture, that justice is not an important issue! -- that is not the focus of the Biblical and Theological framework, or of the proposed canon change.

When discussing civil rights, it is important to note that marriage is not an "individual" right -- that is, no one has the "right" to marry anyone they choose. The consent of the other party is always needed. (This to some extent addresses the accusation that the move to marriage equality is based on some kind of "social atomism" and "individual rights"; aside from the point that even if it were, such views are not in themselves antithetical to Christian thinking.) Marriage equality is about allowing particular couples to marry who have, for legal reasons, been barred from doing so. The better analogy is with the debates surrounding anti-miscegenation laws, which held that an individual man or woman was in no way impeded from marriage to a person of the same race. (Some have supplied similar unconvincing rhetoric in the case of individual gay and lesbian people.) But marriage is not, as I note, an individual action; it is always social.

That being said, the canon preserves the right of a cleric to decline to solemnize (or, as extended, decline to bless) any given marriage. This could be on the basis of a particular issue (a feeling the couple is not prepared to take on the responsibility) or on the basis of a belief concerning a class of people. In fact, this language made its way into the canon in order to allow clergy to refuse to solemnize the marriage of any divorced person, if they did not believe such people should remarry.

This does appear to conflict with the "non-discrimination canon" (I.17.5) which describes "marital status" as a protected class, along with age, race, and sexual orientation, among other categories. However, the canon contains a specific proviso, "except as otherwise specified by Canons." So, for example, the canons can "discriminate" on the basis of age by setting minimum and maximum ages for service as a cleric. The proviso in the marriage canon was added specifically to allow discrimination on the basis of "marital status." So a cleric is able to refuse to marry or bless a same-sex couple -- or any other couple -- if she has an objection of any sort to that couple's marriage, including an objection to an entire class of marriages. As I note, the proposed canon change preserves and extends this "individual right" of the cleric.

I am happy to follow up on further questions, but I think this is good for now.

Tobias Stanislas Haller BSG

UPDATE: the conversation continues...

Allowance is not Mandate: A Thought on Marriage

I have heard it said by some that the Episcopal Church cannot amend its Canons to allow for marriage equality because the Book of Common Prayer's marriage liturgy makes no such provision, and furthermore "defines" marriage as only between one man and one woman. I will simply note in response that the Canons provide at present for marriage by a party to someone other than their living former spouse, after divorce, a situation which is nowhere deemed possible in the Book of Common Prayer's marriage liturgy, which "defines" marriage as requiring life-long fidelity in no uncertain terms.

Canonical allowance does not require full congruity with liturgical practice. Nor does permission need to rise to the level of mandate. The present proposed amendment to the Canons would allow for the celebration of same-sex marriage (should the church authorize liturgies with that in mind), but would no more require them than the present canon on remarriage after divorce requires bishops to approve, or clergy to celebrate, such marriages.

Tobias Stanislas Haller BSG

Confusion in California

A California court has rendered a decision in the remaining property dispute concerning congregations (or parts thereof) who had chosen to depart the Episcopal Church. At issue in this case, rather different from most others, is a letter from the bishop of the diocese written in 1991 telling the congregation they could buy some property that would not fall under the prevailing canonical “trust” of the diocese or the general church. The judge has found that the bishop did not have the authority to waive the canons, which state that all real property is held in trust; and moreover that the bylaws of the congregation also declared that all property they hold is held in trust. This renders the letter and the “gentlemen’s agreement” a nullity. This only came to a head, of course, when the congregation chose to depart the church.

Some have wrongly seen this decision as creating a whole new requirement for the sale of church property, even alleging that all church property transactions might have to come under national approval of some sort. This is a mistaken view for several reasons:

First, the decision of the court involving the supposed waiver of a trust, is distinct from the attempted alienation of property (dealt with as a consequence, since it was the alleged waiver that the congregation thought permitted the alienation.) As the trust requirement is canonical, it cannot be waived by any authority other than the national church through an amendment of the canon itself, or perhaps by legislation clarifying the meaning of the canon (as the General Convention is the authorized interpreter of the canons, through its actions.)

Second, the canons do provide for the alienation of property, which does not require national approval. All that is required for a parish to alienate property is the approval of the bishop and standing committee. This is true for parishes that remain within the Episcopal Church and any which choose to depart — in a few cases amicable settlements have been reached by which congregations leaving TEC have been able to retain their property upon reaching an agreed settlement with the diocese. Parishes cannot simply walk away in possession of property they held in trust.

Third, and this is the most important principle: parishes may well hold title to their property but they do not own it free and clear — and this was true long before the enactment of the so-called "Dennis Canon" — as attested by the other long-standing canonical regulations that restrict the sale of church property, and require diocesan approval (of bishop and standing committee) for such sale. Church property is not allodial, but feudal — its disposition is not entirely in the hands of those who hold title because of other legal restrictions. This is actually true of most property even outside of the church, where zoning laws and eminent domain and other state and local regulations restrict what one can do with one's property.

So those who were claiming that this court decision opens a can of worms for all church property ownership have wildly missed the point.

Tobias Stanislas Haller BSG

Postscript and update:

I am flattered that the venerable Anglican Curmudgeon has taken note of my musings. I fear he has mistook me in small part (which I attribute to my hasty comments at Thinking Anglicans more than to my effort here). Suffice it to say he and I have continued some discussion at his well-worth-visiting blog. I posted a couple of comments there the gist of which I will share here, as I think it helps to offer some additional clarity to my view of the situation, edited slightly for this different context.

As I see it, the main issue involves the distinction between the trust itself and the alienation of property.

I have to agree with the finding of the court that the bishop exceeded his authority in attempting to waive the trust. There is no suggestion that a bishop acting alone, or even in concert with the Standing Committee, could waive the trust established in the canon (acknowledging that some feel the canon itself is irregular and overreaching, it is nonetheless “on the books” and the courts appear in general to defer to it as consistent with what Jones v. Wolf mused might be one appropriate way to flag the existence of such a trust in explicit language.)

Let me add that I do not think any duplicity was involved in the action of the bishop or his canon to the ordinary, and it is a matter of some concern that succeeding bishops, and others, have chosen not to honor that commitment, even if it was inappropriately made. It seems to me that both sides in that agreement were poorly advised as to the state of the law at the time, both ecclesiastical and civil. It would more likely have been advisable for the parish leaders to undertake the establishment of a separate not-for-profit corporation to obtain the property and then to have leased the property to the parish for its use, none of which would have required the consent of the bishop, though an episcopal nod would have been seemly. This would have improved on the gentleman's agreement and provided legal protection.

The issue of the alienation or sale of property is distinct from the existence of the trust. I believe that the current court decision, even if upheld on appeal, should not concern any parish so long as it remains part of the Episcopal Church. That seems to me to be the plain reading of Canon I.7.4. (The "Dennis Canon.") I read "otherwise" in this canon not in reference to the trust (for the Church and Diocese thereof) but in reference to the normal property rights enjoyed by the parish restricted only by the immediately preceding section of the Canon (I.7.3) which describes the procedure and the requirements for encumbrance or alienation.

So my point is that the bishop and standing committee cannot waive the trust, but they can permit the sale or long-term lease of property so long as the parish is part of the Episcopal Church. (Which is the case for the vast majority of congregations.) 

Furthermore, I do not see how this decision would apply to property transactions for parishes that remain part of the Episcopal Church -- or, indeed, who would have standing to challenge such a legitimately permitted and canonically correct sale if the Bishop and standing committee, and the vestry of the parish, have approved it – or even who would care to do so.

Matters are different for parishes that choose to leave the Episcopal Church. I am aware that national leadership have attempted to forbid amicable and fair-value settlements to departing congregations in a few cases; and very likely look askance at sales for a mere token; but I imagine that the urge to challenge even the latter in court will depend on the willingness to meet the legal costs, and I for one would hope that urging reasonable settlements would prevail.

TSH

Post-postcript

Further conversation with A Curmudgeon was very helpful and directs me to what I think is the difficulty I have with his position. This devolves to two points.

The attempted waiver on the acquisition of the property was really an attempt to waive responsibilities de futuro (pardon my mixing marriage law with real estate... just that my head is rather involved in work on the former at present), in other words, proactively to hold property free from the trust in the case of some future alienation. The court found that the trust relationship cannot be so dissolved, either in the future or the present. As I suggest, there were other possible ways to structure this, but a bishop cannot essentially authorize a sale of property (a parish doesn't yet own) in the future, or apply the dead hand to require a successor so to do -- and the St Com approval is also needed in any case. In the present, however, a Bp and SC can authorize an encumbrance (sale or lease) -- not "waive the trust." Which brings me to my second point.

Mr. Haley is interpreting the encumbrance of property in I.7.3 as a waiver of the trust in I.7.4. But it is not a waiver of the trust, since the value of the property remains for the use of the church. It is a transaction within the trust, not an escape from or waiver of it. It was the attempted waiver de futuro -- essentially to allow a parish allodial title to their property -- that the court found to be a nullity. Parishes do not hold their property free and clear.

I.7.3 was on the books long before I.7.4 was a glint in Walter's (or Blackmun's) eye. The trust element was, as various courts have stated it, implicit, in part because of the long-standing limitations on the encumbrance of property to the extent that a higher authority (Bp and SC) had to approve sales or long-term leases.

I do not see this as a case of special pleading, but an across the board requirement. Parishes are not able "to deal freely with their properties" even within TEC. They must have Bp and SC approval for any encumbrance. In NY this is written into the Not-or-Profit Religious Corporations statute as well (predating Dennis), so we need approval of the Supreme Court as well!

TSH

Jumping the Gun?

There is a press report that the Presiding Bishop has accepted Mark Lawrence's renunciation of ministry in The Episcopal Church.

While I believe that Mark Lawrence has abandoned the communion of The Episcopal Church, I do not think he has renounced his ministry, at least in the manner laid out by Canon III.12.7, which requires a written declaration to the Presiding Bishop expressing a “desire to be removed.”

I think that rather than jumping the gun, and taking actions and speeches as if they met the formal requirements of the Canon, the process of dealing with the abandonment should have been followed to the letter. Lawrence's November 17 speech — and other actions — obviously do not constitute "a good faith retraction" of those things that led to the charge of abandonment, which is what he could have done in the 60-day period to reverse course. But continuing on the same course does not transform abandonment into renunciation under either the letter or spirit of the law.

Haste is not our friend.

Tobias Stanislas Haller BSG

UPDATE: An additional problem is that “renunciation of the Doctrine, Discipline or Worship of the Church” — which constitutes abandonment under Title IV — is not the same thing as “renunciation of the Ordained Ministry” under Title III. I think it is clear that Lawrence has done the former, but it is not at all clear he has done the latter — in the form set out in the Canon, that is, by a written statement to that effect. There has been no canonically formal, “You can't fire me, I quit.”

Taking a Constitutional

Prior to the recently ended session of the General Convention, a few fringe voices had been raised contesting the constitutionality of provisions of Title IV of the Canons. Since the Convention, similar, if not identical, voices have been raised questioning the constitutionality of the liturgy for the blessing of a same-sex covenanted relationship.

Let me address the latter first. The bulk of Article X refers to alterations of and additions to the Book of Common Prayer, and for authorization of trial use to that end. The explicit proviso at the end of the Article allows the Bishops to take order for other forms in accordance with the rubrics -- the principal of which is the rubric on page 13, which deals with the question of additional rites directly.

In addition to [the Daily Office and Holy Eucharist] and the other rites contained in this Book, other forms set forth by authority within this Church may be used.

This includes the Book of Occasional Services, Lesser Feasts and Fasts, and more recent supplementary liturgical material such as those in the Enriching our Worship series. It also includes the liturgy approved at this past Convention by an overwhelming majority in both Houses, for the blessing of a life-long covenant. This liturgy is not in conflict with the BCP, any more than a liturgy for the blessing of a battleship would be. The fact that the BCP does not refer to such blessings is not in itself a limiting factor, nor does this blessing liturgy in any way conflict with or alter the forms in the BCP. It is a supplemental rite making provision for something the BCP does not address -- which is the nature of a supplement. By Constitutional definition, the limit upon authorized rites is respected, and with the proviso of local episcopal approval, these rites may be used as of authority in this church, equally as much as the rites I have enumerated above. Some bishops will decline or refuse to permit the use of this new rite -- this is what renders it provisional, and they will be within their competence to act in this way.

Questions of constitutionality have been referred to the Standing Commission on Constitution and Canons. In the past they have been reluctant to rule on Constitutionality as beyond the ambit of their role, but in accordance with Canon I.1.2.n.3.v they have by resolution C116 been charged to take up the question. The opinions of canon lawyers (and others) on both sides will no doubt be considered in their deliberations.

Tobias Stanislas Haller BSG

An Imperfect Union

One of the issues facing clergy in New York State — joining a handful of other American jurisdictions — is the role they may play in the marriage of same-sex couples. The issue is open to a broad range of interpretation, as both the canons and the Book of Common Prayer are silent on the subject. The range of interpretation is well represented by the bishops of the various dioceses into which the Episcopal Church in the state of New York is divided. Differences of opinions between the bishops is particularly exacerbated in New York City because its five boroughs are distributed into two different dioceses: Manhattan, the Bronx and Staten Island are in the Diocese of New York, while Brooklyn and Queens are part of Long Island. Bishop Provenzano of Long Island has taken the position that clergy may perform same-sex marriages, while Bishop Sisk of New York has taken the position that they may bless civil marriages but not exercise the civil function in the solemnization of marriage for a same-sex couple.

This would not be a problem — or less of a problem — if we lived under Napoleonic law, in which only civil functionaries can perform the civil function of solemnizing marriage. In France a couple must take part in a civil marriage if they are to be considered married in the eyes of the state (and if they are Roman Catholic they must also have a church wedding in order to be considered married under the Roman Catholic canons.)

But here in New York, as in much of the rest of the United States, clergy are granted the faculty of performing civil marriage on the basis of their being ordained and authorized to celebrate marriages by their churches. The irony, and the misunderstanding (on the part of the civil authorities) is that according to the theology of marriage in place in the West for quite some time, the actual ministers of marriage are the couple — not the clergy. That is, the couple minister marriage to each other. The role of the church, and in particular the clergy, is to record, witness and above all to bless the marriage. But the marriage is made by the couple. So in allowing clergy the civil faculty to “perform” a marriage there was already a significant misunderstanding at play.

Ultimately this bleeds over into the current dilemma. Since blessing the marriage is all that clergy do strictly as clergy, what logic is there in forbidding them to perform the civil act of solemnization which is only theirs by gift of the state? (Except that the state only gives it because it misunderstands what the church is doing in marriage! Oh, what a mess this is...)

Canons to the right of me

The confusion is further exacerbated when we look closely at canonical rules. The first section of Canon I.18 states:

Sec. 1. Every Member of the Clergy of this Church shall conform to the laws of the State governing the creation of the civil status of marriage, and also to the laws of this Church governing the solemnization of Holy Matrimony.

We are off to a bad start with the artificial distinction between “creation of the civil status” and “solemnization.” But let that pass. The primary issue here is the mandatory conformity enjoined upon members of the clergy with the laws of the state concerning civil marriage. Several states and jurisdictions now have laws governing the civil status of marriage which permit marriage to same-sex couples. At present the “laws of this Church” do not address the question of same-sex marriage at all, either to forbid or allow. The laws of the church are designed solely to govern marriage between a man and a woman, primarily to assure that capacity to marry and consent obtain. This is how section 2 describes it:

Sec. 2. Before solemnizing a marriage the Member of the Clergy shall have ascertained:
(a) That both parties have the right to contract a marriage according to the laws of the State.
(b) That both parties understand that Holy Matrimony is a physical and spiritual union of a man and a woman, entered into within the community of faith, by mutual consent of heart, mind, and will, and with intent that it be lifelong.
(c) That both parties freely and knowingly consent to such marriage, without fraud, coercion, mistake as to identity of a partner, or mental reservation.
(d) That at least one of the parties has received Holy Baptism.
(e) That both parties have been instructed as to the nature, meaning, and purpose of Holy Matrimony by the Member of the Clergy, or that they have both received such instruction from persons known by the Member of the Clergy to be competent and responsible.

Clause (b) is a problem on a number of levels¹ but not primarily as a restriction on same-sex marriage. For the “understanding” that holy matrimony involves a man and a woman falls upon the couple rather than the clergy, as does the similar language in the “declaration of intent” that the couple are somewhat redundantly² obliged to sign. The crucial thing to observe is that none of this has any impact on the civil faculty of clergy to solemnize marriage, nor on the ecclesiastical faculty of blessing the marriage (which, as I note above, is the primary clergy task from a strictly ecclesiastical point of view.)

Rite of Way

A further level of complexity concerns the lack of a nationally authorized liturgy for the marriage of same-sex couples. This is where the “generous pastoral response” of the 2009 GC Resolution C056 comes in. This Resolution, which was adopted by overwhelming majorities in both the House of Bishops and House of Deputies, states, among other things:

That bishops, particularly those in dioceses within civil jurisdictions where same-gender marriage, civil unions or domestic partnerships are legal, may provide generous pastoral response to meet the needs of members of this Church...

Taking advantage of the bishops’ constitutional prerogative (Article X, and BCP page 13), to authorize special forms of liturgy for occasions not already provided for in the BCP, it is well within a bishop’s scope of action to do as some have done in allowing use of experimental liturgies such as have already been developed for same-sex marriages.

In Conclusion

It seems to me that it is fully appropriate for a bishop to authorize clergy of a diocese in which the civil law allows the solemnization of same-sex marriage to perform both the civil function of solemnization and the ecclesiastical function of witnessing, registering, and blessing the marriage, using forms authorized by the bishop to that end.

__________

1. The main problem lies in the word “spiritual” — since the tradition, and the liturgy, do not define marriage as a “spiritual union” in the Western tradition, which holds that marriage ends at death. This biblical point of view (cf. Luke 20:35, 1 Cor 7:39) is not accepted in the East, which is one of the reasons the Eastern Orthodox are not sanguine about second marriages even in widowhood.

The secondary problem concerns the marriage being “entered into within the community of faith” since as the canon states (repeating a BCP rubric) only one of the parties need to be baptized and there is no requirement at all that the witnesses be baptized.

It would probably be best to delete this whole section “b” as superfluous.

2. The Declaration of Consent contained in I.18.3.e-g repeats the language of the BCP. That a couple should have to sign this declaration prior to making the declaration as part of the marriage liturgy seems a completely unnecessary requirement, rather like requiring an ordinand to sign the Oath of Conformity before signing the Oath of Conformity in the ordination liturgy.

Tobias Stanislas Haller BSG

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Taking a Constitutional

I am happy to see that a group of diocesan chancellors has issued a response to the claims of the ACI and South Carolina that Title IV grants unconstitutional powers to the Presiding Bishop. I am also pleased to see that even as a legal amateur I anticipated a number of the arguments in defense of the authority of the PB that appear in this paper. The strangest of these claims by the ACI and SC is that the Presiding Bishop requires permission to exercise tasks assigned to her in the Constitution and Canons, based on the restriction of bishops’ exercise of their office to the diocese for which they are consecrated. The present paper defends the PB’s right, and indeed duty, to carry out these responsibilities, and there is no indication that permission is needed to do something mandated by law.

Good work. (Note, the link to the paper in the Episcopal New Service release is incorrect. Use this one.)

Tobias Stanislas Haller BSG

Dueling Epistles

Much is being made of the publication of two letters from two primates of the Anglican Communion: the Archbishop of Canterbury and the Presiding Bishop of the Episcopal Church. Both of them are well worth reading and say important things from their different perspectives: the Archbishop properly speaking in the role and to the end for which he feels responsible: to preserve the unity of the Anglican Communion; the Presiding Bishop properly speaking for the historic and continuing independence of the Episcopal Church concerning its internal affairs, while remaining Anglican in the same way it has from the beginning. To vastly oversimplify, Rowan appears in the role of loving parent of unruly children instructed that they will have to stay in their rooms without TV until they can get along with the rest of the family. He is very even-handed in laying down what he clearly thinks is the law. Katherine’s response is a reminder and reassertion that this role-play is in itself an assumption of a power not granted in an entity not yet constructed.

So, in its own way, this epistolary exchange incarnates the larger debate on the nature of the Anglican Communion itself, and whether it should continue as a fellowship of autonomous churches or morph into a more tightly governed structure, such as that proposed by the draft Anglican Covenant.

Some commentators are engaging in a bit of revisionist history when they seek to portray in the foundation of the Episcopal Church a desire to serve as a branch or outpost of the Church of England, which indeed the colonial churches had been, answerable to the Bishop of London, prior to the War of Independence. There may well indeed have been a few individuals who thought that way at that time. However, the bulk of the evidence shows that the emerging Episcopal Church of the late 18th century wanted nothing from England but bishops — that is, they wanted bishops (to remain Episcopal) but knew the church would not be English — and indeed if they were unable to obtain the episcopate from England they were happy to go to other quarters. Indeed, it is ironic that the principled Tory Seabury ended up going to Scotland, while the Patriot White held out for England, pressing other Patriots such as Jay and Adams in that cause. But however bishops were obtained, the documentary evidence shows that it was bishops that were wanted and not any kind of continued governance from England — a cordial relationship, yes; but governance, no.

On the contrary, great pains were taken in the new land to militate against any such divided loyalty. As the preface to the 1785 Constitution of the Episcopal Church stated as its first “Whereas” — “in the course of Divine Providence, the Protestant Episcopal Church in the United States of America is become independent of all foreign authority, civil and ecclesiastical...” This language was echoed in the Preface to the first American Book of Common Prayer in 1789.

Nor were the English particularly interested in ecclesiastical entanglement with this new independent church in America, playing what is best described as an affectionately avuncular role. In witness of this, the Act of Parliament permitting Canterbury the ordination of American bishops contains this important proviso:

Provided also, and be it hereby declared, that no person or persons consecrated to the office of a bishop in the manner aforesaid, nor any person or persons deriving their consecration from or under any bishop so consecrated, nor any person or persons admitted to the order of deacon or priest by any bishop or bishops so consecrated, or by the successor or successors of any bishop or bishops so consecrated, shall be thereby enabled to exercise his or their respective office or offices within his Majesty's dominions.

Hardly a “continuation” of the Church of England, and rather a blow even to the notion of communion itself — usually understood as involving recognition and interchangeability of ministers — or to the ahistorical notion that a “bishop is a bishop for the whole church.” In fact, this proviso echos the language of the ancient canons that required bishops to confine themselves to their own sees and not meddle about extramurally.

But back to the dueling epistles: some, such as Diana Butler Bass, see this as a turning point — something’s got to give, and the Communion will never be the same. She may well be right, and I think that is unfortunate. I wish Rowan had exercised the wisdom of a truly loving parent, when from his perspective the children started acting up, to let them be, rather than to formalize their quarrels — and his Pentecost letter continues on that road of mildly vexed and punitive paternalism. It may have effect: It is so much easier to have consensus when those who disagree are removed from the conversation; but then, as with Caroline’s “ball without dancing” — it will not be near so much a conversation. Or a Communion.

Tobias Stanislas Haller

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On Consents: Conscience, Consequences and Canons

The consent process for the ordination and consecration of Mary Glasspool is well under way, and the score-keepers and handicappers are hard at work. As we all realize, consents to episcopal elections are not a trivial matter; but then, they never were, as a reading of the first decades of the church's history reveals. Even in those simpler times there were a number of priests elected who failed to garner the necessary consent to their episcopate.

No one would say we live in simpler times, and some of the complexity is due to conscience. In Glasspool's case, there will be people (bishops with jurisdiction and members of standing committees) whose conscience will insist she must be ordained; and there will equally be others who in conscience will cast a negative (or withhold a positive) vote on the grounds of her partnered status, or even on the grounds of her sex. (There are still those who believe that a woman not only should not, but cannot be a bishop, and their belief will inform their vote.)

Still others will be swayed by concern over consequences. The Archbishop of Canterbury himself has alluded to that reality; and certainly it is no great prognostication that consent, or failure of consent, will indeed have consequences of one sort or another.

Others yet will take the course of reading the text of what they are signing, which, at least as far as standing committees goes, attests that they "know of no impediment on account of which the Reverend A.B. ought not be ordained..." and consent on the basis of their agnosticism, or deny consent on the basis of knowing of some such impediment. (Obviously those who do not believe a woman can be a bishop would hold her sex to be such an impediment; though this is not the current teaching of the church, and thus not a canonical, but a conscientious impediment, as noted above. A canonical impediment, apart from matters of age, having filed the proper paperwork, and so on, would include having done something that would be cause for deposition if proven, under the disciplinary canons.)

Whatever happens, people are watching and keeping count. One hundred twenty days seems like a long time in our electronic age, but it may well run its full course in this case. My suspicion is that we may see some exercise of the "pocket veto" — some lukewarm bishops or standing committees simply not getting around to registering their vote, which will count as a "no" since an absolute majority is needed in both categories. So, if consent fails, they will be able to say, "We didn't vote against her," while if she is confirmed, will be able to say, "We didn't vote for her." It will be interesting to see, come early May, how many voices are silent at the deadline.

Tobias Stanislas Haller BSG

Mrs Ashworth is misinformed

and perhaps a meddlesome interferer who by her own admission did not consult with any Episcopalians other than those she appears to represent; or at the very least a well-meaning busybody.

Mrs Lorna Ashworth is bringing a Private Members Motion to the General Synod of the Church of England, appealing recognition by the Church of England of a state of communion with ACNA (the self-styled "Anglican Church in North America). You can review her background document for yourself. Amongst the numerous errors and half-truths in this document, I want simply to flag her assertion that the "Dennis Canon" was somehow a novel creation by which all parish property was transferred to "the ownership of the national church."

In fact, the "Dennis Canon" (which she quotes but clearly does not understand) merely put into canonical language the practice and understanding of the church (and in most places, the state) up to that time: that parishes may own their property, but they hold it as trustees for the wider church. It is not theirs to sell, for instance, and never has been, without diocesan approval, under canons far older than that proposed by Walter Dennis. (This is perhaps slightly different than they do in England, admittedly, but I very much doubt the leadership of an English parish could suddenly claim no longer to be part of the Church of England and retain the real property until then held in its name.) The Dennis Canon merely made explicit what had been the normal practice up to that time. Dozens of court cases had been decided in favor of the larger church prior to the adoption of this canon, and very, very few against (most of the latter involving peculiar circumstances in a given parish).

But to clarify for Mrs Ashworth, and any member of the Synod who might not understand, the question isn't ownership but trusteeship. I have dealt with this at length before and will not dwell on it here, but the basic principle is not that hard to understand: when people have custody of a property as trustees, the maintenance of the trust forms the basis of their control. Most Episcopal parishes were founded for the good and use of The Episcopal Church; they were maintained and contributed to over (in some cases) generations with that end in mind, and the vestries serve as the custodians of that trust. Those who give to the support of the church give -- the church doesn't belong to them simply because they have contributed to its construction or maintenance. (Ananias and Sapphira learned that the hard way.)

Moreover, when leaders of a parish vote to leave The Episcopal Church, even though they may feel that they are the truly faithful Anglicans, they fail in their trustee responsibilities, and at the very least remove themselves from being qualified to exercise that trust — they have, in fact, violated the trust. So the control of the property (not its ownership, per se) reverts to the body for whom it was held in trust: the diocese and national church. In many cases the members of the parish who remained part of The Episcopal Church will take up control of the property. Mrs A seems to show a great deal of pity of those she says are "excluded" from their churches, with scant recognition that in many cases a portion of the congregation has no wish to secede from The Episcopal Church, and it is they who have been "excluded" and are seeking to regain property wrongly occupied by those who wish to walk apart from the church of which they formerly were part.

I certainly hope this mischievous motion is not adopted. It will seriously muddy already well-trodden waters. (See the comments to this effect in the additional document from the Secretary General, especially noting the citations from the Windsor Continuation Group Report ¶ 93-96.)

Tobias Stanislas Haller BSG

A Distinction to be Made

I would like to highlight one source of confusion in the present debates on marriage and sexuality (in the classic sense of a mixing together of various things).

That is the subtle distinction between Holy Matrimony and Marriage. The terms really ought not be used interchangeably, though they often are. However, marriage, properly speaking, is a human phenomenon (as part of the creation; and as many believe, thus instituted by God). Even given that source, there is wide variability to the form of marriage in many cultures and countries, through time and space, including the Jewish tradition out of which the Christian tradition grew. In many respects the Christian understanding of marriage was as much influenced by prevailing Roman custom (and law) as it was by Jewish understandings.

Holy Matrimony, or “Christian Marriage” is a particular subset of these various forms of marriage. The Canons of the Episcopal Church (I.18.1) attempt to preserve this distinction, limiting Holy Matrimony to marriages that are “entered into within the community of faith,” that is, within the church. (As a side note, I will point out that the BCP rubric, page 422, allowing “Christian marriage” in which only one of the parties is a Christian, pushes the envelope considerably, and is arguably discordant.)

The Exhortation at the opening of the Celebration and Blessing of a Marriage, on the other hand, supports the distinction, noting that “marriage” has existed since the Creation, but that what the assembled body has “come together” for is Holy Matrimony. The Catechism, page 861, continues this clarification by stating, “Holy Matrimony is Christian marriage.” (I will also note that the Catechism is one of the formal elements defining the Doctrine of the Church according to Canon IV.15. This is as “official” as one can get.)

Thus our church recognizes the existence of marriages which do not come under the law of our church as Holy Matrimony. This includes civil marriages as well as the religious marriages of non-Christians. We do not deny the legal reality of civil marriages, nor do we require the members of our church to have been married in a church wedding, or to participate in the “Blessing of a Civil Marriage,” in order to be considered married. (To some extent this reaffirms the ancient doctrine that the ministers of marriage are the couple, and the church serves to witness and bless the marriage.) This is, needless to say, not the case in all Christian traditions, and this is just one more example of the discontinuities that exist between those various traditions.

In the Episcopal Church, clergy are required by Canon I.1.18 to abide by the law of the church concerning Holy Matrimony and the law of the state concerning marriage. Where these are in conflict, it seems to me that preserving the distinction between Holy Matrimony and marriage is a helpful factor in determining what to do — or refrain from doing — in particular cases.

I hope raising this distinction will be helpful in continued discussions of the interaction between church and state, and within the church.

Tobias Stanislas Haller BSG

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The Upside-downity of Subsidiarity

I've been thinking more about the proposed Covenant and Archbishop Rowan's post-GC Reflections these last few days, including some helpful conversation in London, both with friends and in connection with other programs. I have also found Savi Hensman's essay to be of great help in providing some further digestive enzymes to break down the harder-to-swallow portions. I promise to offer some additional thoughts on the Covenant and the Archbishop's Reflections anon, but wanted to note a shift in direction within the Virginia Report and further movement in the Windsor Report which is, I think, to some extent diagnostic (if not prognostic) about less than helpful trends. It has to do with a shift in the understanding of subsidiarity.

The Virginia Report (4.8 ) helpfully quotes the Oxford English Dictionary for its definition of subsidiarity:

The principle of "subsidiarily" has been formulated to express this investment in the local and face-to-face. Properly used, subsidiarily means that "a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level."

and goes on to say (4.9):

Subsidiarity may properly be applied to the life of the Church in order to resist the temptation of centralism.

However, a bit further along the drift towards that very centralization begins to scrape bottom, including the introduction of vertical rather than horizontal language (albeit in scare-quotes):

4.10 ...Every "higher" authority ought to encourage the free use of God's gifts at "lower" levels. There must be clarity on what has to be observed and carried out at that level, and also on the limits of its competence. As much space as possible should be given to personal initiative and responsibility. For example, in the relationship between a bishop and a parish priest and congregation, there is initially a giving of responsibility to the latter for the task of worship, witness and service within its geographical boundaries or area of immediate influence. The priest and parish will be given a set of tasks which they are obliged to fulfil. These will be few in number and general in character The limits of their authority and responsibility will also be explained to priest and parish. These will essentially reflect agreements made previously by church synods, and expressed in canons and other ways. They will be honoured by all unless and until they are changed by the due processes of agreement. Subject to such boundaries the priest and parish will be encouraged to use all their gifts, energy and commitment to enable the gospel to go forward in that area. The bishop and parish priest will maintain the highest level of communication possible so that encouragement, advice, and, where necessary, correction can be given, together with new task as occasion arises.

4.11 Anglicans may properly claim that the observation of different levels and the granting of considerable freedom to the lowest possible level has been a feature of their polity. In Anglicanism today canonically binding decisions can only be made at the level of a Province or in some Provinces at the level of a diocese.

You will notice that the text I have italicized in section 4.11 has already inverted understanding of "subsidarily" from the assignment of broader duties to a more central authority into the grant of freedom to a lower level.

By the time we get to Windsor, even this dim memory has faded, and subsidiarity is essentially trivialized, and described as only concerning matters literally of no importance.

38 This highlights a fourth key strand of our common life: subsidiarity, the principle that matters should be decided as close to the local level as possible. Subsidiarity and adiaphora belong together: the more something is regarded as 'indifferent', the more locally the decision can be made. It does not take an Ecumenical Council to decide what colour flowers might be displayed in church; nor does a local congregation presume to add or subtract clauses from the Nicene Creed. In part this belongs with the missionary imperative: the church must give its primary energy to God's mission to the world, not to reordering its internal life.

39 The fourth reason for our present problems is thus that it was assumed by the Episcopal Church (USA) and the Diocese of New Westminster that they were free to take decisions on matters which many in the rest of the Communion believe can and should be decided only at the Communion-wide level.

And so it is that this notion, originally about the bottom-up nature of governance, which refers by a natural process broader functions to a more centrally coordinated authority, has become the classical pyramid of top-down government.

Yet surely it can be shown, as I have stated time and again, that the actions of New Westminster and TEC were precisely consonant with the original meaning of subsidiarity. To use the language of WR39, their assumptions were precisely correct, and the false assumption was that of those who felt such matters could only be decided at the Communion-wide level. However, as the Virginia Report notes, "In Anglicanism today canonically binding decisions can only be made at the level of a Province." There is no Communion-wide canonical procedure for the approval of the election of bishops, for example, and no bishop has any authority outside his or her own province -- that is, the province that, through its appropriate canonical processes (the only such processes that exist, approved his or her ordination. The office of bishop is precisely the locus of a subsidiary function. Until an Anglican Congress or Council is established, bishops of the whole Communion have been given no authority to legislate for the whole Communion. They have not yet been granted that subsidiary authority, to do what cannot be done more effectively at a local level, where, if a Province doesn't want to have a partnered gay bishop, it need not do so -- nor allow such a one to function within its borders.

I will not comment at length on the topic of same-sex marriage, since it is of even less necessary impact beyond those places where it may take place. No one is forcing any other province to do what it doesn't want to do. In the long run, either the individual Provinces have certain liberties in matters of rites and ceremonies -- an explicitly Anglican declaration of subsidiarity and provincial liberty from the very beginning -- or they don't.

Tobias Stanislas Haller BSG

Why I don't like tinkering...

A commenter on the previous post asked why I wrote it, and I responded in the comments. It occurs to me that the further thinking to which the question led might be of more interest, so here is some of it.

I'm concerned because I've seen some intentional revisions to our fundamental liturgies, not authorized by General Convention, proffered here and there. These are often no more theologically adept than the occasional ad hoc and ex tempore alterations encountered with, I'm sorry to say, greater frequency, as a cleric changes a word here or there off the top of his or her head. These other alterations are sometimes extensive, and radically revise the texts away from (or even contrary to) their original meaning. Quite apart from this being a violation of the canons, I find it undermines the unity of the church, and tends to produce parishes with the atmosphere of a boutique — a specialty shop that offers a liturgy to be found no where else.

I readily admit such things happen in terms of music and liturgical style — but at least the text has a common center. But with the text altered, everything is literally up for grabs. Such a parish becomes sui generis in almost every aspect. And I think this is destructive to our common mission as much as to our common prayer. Why?

It seems to me that the further apart parishes are, the more they should aim at being as plain vanilla as possible — good vanilla, of course, organic beans with heavy cream — not only for the sake of the visitor or newcomer, but in order to share more closely in the common life of the wider church. In more urban settings, parishes can, I think, risk more variety in style (though not, as I'm attempting to note here, substance). But if the only church in town is offering a liturgy that is not BCP — in addition to whatever ceremonial, musical, homiletical, or sartorial variants are on tap — I can only think it will become more and more peculiar and isolated as time goes on, and is at risk of becoming a sect of its own.

— Tobias Stanislas Haller BSG

The Province is the Church

Episcopal Café reports the following answer to the question of just what "Churches" are intended by the proposed Covenant.

In Anglican ecclesiology, there is a creative tension between the understanding of “local Church”, which is that portion of God’s people gathered around their bishop, usually in the form of a territorial diocese, and “Church” as a term or description for a national or regional ecclesial community, which is bound together by a national character, and/or common liturgical life, governance and canon law. Traditionally, Anglicans have asserted the ecclesial character of the national Church as the privileged unit of ecclesiastical life. The Church of England’s very existence was predicated upon such an assumption at the time of the Reformation. Recognised in most cases as “Provinces”, these national or regional Churches are the historical bodies through which the life of the Anglican Communion has been expressed, and they are the primary parties for whom the covenant has been designed. If, however, the canons and constitutions of a Province permit, there is no reason why a diocesan synod should not commit itself to the covenant, thus strengthening its commitment to the interdependent life of the Communion.

Which is more or less what I've been saying for some time. The notion that the diocese is autonomous from the church of which it forms a part makes no sense in an Anglican ecclesiastical framework. The "national church" was the idea from the beginning of the Reformation, on through the creation of the Protestant Episcopal Church of the United States of America (because the US was now an independent nation), the creation of the PECCSA (Protestant Episcopal Church of the Confederate States of America) when the southern states believed they had formed a new nation; &c.

Although Roman Catholicism enjoys the concept of a single world-church, Anglicans have tilted more in the direction of Orthodox autocephaly, with our own peculiar twist on things as a communion of autonomous churches bound together with shared history and liturgies springing from a common trunk, with many branches and leaves, and those apparently foresaken bonds of affection. Efforts to squeeze the individual Churches of the Anglican Communioin onto the procrustean bed of international uniformity cut against the grain of our rich tradition — cutting down perhaps our greatest gift to the whole Church of God, in that our provincial structure makes possible selective development in teaching and practice, limited not by some central magisterium, but by the natural process of reception. Thus change is limited in scope until (and unless) it becomes more widely accepted. (As I've said again and again, nothing TEC or the ACoC have done necessitates the Nigerian or Ugandan Churches approval, or their doing the same thing.)

The driving force behing this Covenant is a step away from this manner of thinking. It is a step backwards, and will prove to be an tool for division and fragmentation, rather than an instrument towards unity. Unless we all just sign up and get on with our lives, allowing it to serve its symbolic function with no real power over any of those who sign it.

The fact is, all of our problems began with Lambeth 1998, when it came to imagine itself capable to make doctrinal statements beyond its competence. The fathers of Lambeth ate sour grapes, and the children's teeth are set on edge.

Tobias Stanislas Haller BSG

Legerdemain

My view, laid out somewhat tongue in cheek in the previous post, is that a diocese's signing the covenant is essentially irrelevant to whether they are part of the Anglican Communion or not. Didn't Dr. Radner say Southern Baptists could sign if they wanted to? The whole enterprise in the long Bishops' Statement appears to have little to do with the supposed goal -- remaining part of the Anglican Communion.

It is hardly necessary to argue (in the face of the obvious) that TEC is not hierarchical in order for a diocese to sign a statement such as the proposed Covenant. That is, dioceses not being autonomous -- in that they must follow the Constitution and Canons of the General Convention, and are governed by those laws -- what, in the Covenant, is contrary to the Constitution and Canons of our church? I don't see what all the fuss and bother is, on either side.

I do see a good deal of lawyerly piling up of irrelevance to "make a case" for diocesan autonomy on counselor McCall's part, but that's another matter. The case he made, bad as it is, might have a pernicious effect sooner down the road than the Covenant coming to fruition. All the talk about the Covenant may be nothing more than a smoke-screen anyway -- read the earlier ACI statement of March 12 (St Gregory must have taken a turn in his tomb) where the idea of diocesan autonomy is more clearly linked to the litigation taking place (or due to take place) in a number of dioceses — a topic bruited upon in the email thread gone public.

This is the real issue, not the Covenant. Pay attention, folks. Remember how sleight of hand works.

Tobias Stanislas Haller BSG

BS from ACI

The self-styled Anglican Communion Institute has issued a Bishops' Statement designed to bolster the notion that the individual dioceses of the Episcopal Church are not only independent, but "autonomous." Isn't it strange for those so keen on limiting provincial claims to autonomy to so willingly parse it down to the next level?

For, the claims of the long and tedious paper notwithstanding, there are different levels. The General Convention is superior to any given individual diocese, and establishes laws that limit what the dioceses can do. The fact that this limitation comes about because of the agreement of the dioceses acting together in Convention is not an indication of their individual autonomy -- as the paper suggests -- but is rather proof of their submission to the jointly taken actions of the whole body. This is really a basic principle, well laid out in Hooker's Laws of Ecclesiastical Polity. Once the larger body has taken a decision, dissent is quelled. (See especially the Preface, "Of the need of some kind of authority.")

This is what a hierarchical entity looks like: the constituents agree to be bound by the decisions of the group, even when they are in the minority, and disagree with the decisions. They relinquish their autonomy in order to be part of a larger entity, to whose decisions they submit.

The paper also makes the curious argument that because the dioceses (then states) that formed the original Episcopal Church were independent prior to entering into union with each other, they somehow maintain that independence. This neglects the significance of what union means. One might just as well say that because a couple were single before marriage that they retain their independence afterward. It can also be pointed out that the Constitution of the US also lacks reference to its own indissolubility -- and uses the same word, union, to capture that concept, a concept later proved on the battlefield and in the courts.

The paper also ignores basic facts concerning the government of the Episcopal Church that do not fit its thesis. For example, the disciplinary canons' list of offenses makes violation of the Constitution and Canons of the General Convention an offense, and any clergy person, including a bishop, is amenable to trial on that account. In the case of a bishop, the trial necessarily involves the larger church, outside the confines of the diocese. The court structure itself is plainly hierarchical, and higher courts can overrule lower courts. When it comes to matters concerning the trial of a bishop, the General Convention may "establish" an "ultimate" court of review in matters of doctrine, faith and worship. How can something be "ultimate" if there is no hierarchy?

Given the many authorities constitutionally assigned to General Convention in relation to the admission, division, and so on, of dioceses, it seems to be kicking at goads to say there is no authority implied in language such as consent, accept, prescribe, approve, &c., on the side of General Convention, and of accede on the side of the diocese. The article tries to make a case for unqualified accession meaning something other than "to become a party to an agreement without reservation." The fact that the term is used in treaties and other serious contracts in no way lessens its force as signifying assent and acceptance of the terms!

When we look at the worship and doctrinal life of the Episcopal Church, it is abundantly clear that dioceses are not autonomous in either regard, except in very narrowly prescribed limits: and it is the Constitution and the General Convention that set those limits. This is a clear indication of hierarchy, which includes the mandatory use of the Book of Common Prayer as adopted by General Convention, not to be amended or altered by diocesan authority (though a bishop may supplement it in specified circumstances.)

In short, the idea that dioceses are autonomous, and not part of a clearly defined hierarchy, is entirely specious. That our hierarchy is not as rigid or monolithic as that of, say, the Holy Catholic Church of Rome, and has a more federal¹ structure, in no way alters the fact that there is a central governing body, which, even if it be made up entirely of representatives of the several dioceses, is a body to which those dioceses covenant to submit themselves, without qualification. After all, an individual diocese cannot even elect² a bishop of its own without the consent of the rest of the church, either through General Convention, or (apart from its sessions) by a vote of the other diocesan bishops and standing committees.

One of the most significant facts the paper neglects is that most of the original dioceses (or "states") that went to form the Episcopal Church at the outset, did not have bishops at the time -- with a few exceptions they were "dioceses" in formation, lacking the episcopate which would only come by later action of the Episcopal Church, once they were part of it. (Surely it is strange to find scholars with such a high view of the episcopate argue that a diocese can really be a diocese in the fullest sense without a bishop! Yes, there is an ecclesiastical authority in a bishop's absence -- but one that is sorely curtailed from exercising any and all of the episcopal functions that reside in a person, not a committee.)

So while it is true that the Episcopal Church has a kind of democratic (or republican) hierarchy -- but it is hierarchical: the dioceses do not rule themselves -- that is, they are not autonomous.

So let's stop all this nonsense about free-floating dioceses, please.

Tobias Stanislas Haller BSG

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Updated clarifications:

1. Note that I say more federal. Dr. Dator has argued that our structure is even more centralized and unitary than federal. I use the term here only in the sense of strongly centralized.

2. Consent is required both for the ordination of bishops, and, in the case of coadjutors (which is now more the rule than the exception) for permission to hold the election itself. I have conflated the language a bit here, but the fact is that no one becomes a bishop in the Episcopal Church without the consent of the wider church.

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

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