11/21/2010

Anglican Curmudgeon dumps on Preludium's opinions.

The Anglican Curmudgeon didn't take long. Six hours after I posted  Does acceding to the Constitution imply acceding to the Canons? A. S. Haley posted the following retort, " The Canon Should Lay Off the Canons.
In his usual curmudgeonly way Haley lays on the nice, followed by a slice and dice routine, ending with just a touch of snide. He closes out,

"People who are not trained in the Canons are often not aware of the significance of legislative history, or of the importance of delving into the work of prior Conventions before coming to any conclusions about what current language means. I do not hold Canon Harris to that standard, and so I do not fault him for his opinions. But his opinions in this instance have nothing to do with the actual "authority of General Convention" in the Episcopal Church (USA)."

How nice that he doesn't fault me for my opinions. He does tell me to lay off the Canons, suggests that I am not trained in them, etc. I think he indeed faults me and is just singing nice for the fun of it.


What to make of his quick response?  

Well, for starters he doesn't think much of my scholarly abilities.  "Being a Canon in the Church, however, does not give anyone particular insights into the Canons. (I believe a course in Church canon law is included in the curriculum at most, if not all, Episcopal seminaries. As professors of canon law would be the first to admit, however, passing one of their courses does not a canon lawyer make.)"

I have to admit that is true. And in my own way I acknowledge the possibilities of shortcoming. I write, 

"My sense is that acceding to the Constitution of the Episcopal Church does indeed imply acceding to the Canons of TEC. Further, the application of the Diocese of San Joaquin does not imply, by its absence of mention of canons, a rejection of the need to conform to the canons of TEC. 
But, what do I know?  I am not a lawyer or the son of a lawyer. But I know when I'm being blind-sided.


What do you think?"

Now the point to my admission is both to say I am indeed not a canon lawyer, but do believe Haley's argument is inadequate to the task.  Still, perhaps Haley is right. Perhaps I ought to lay off asking questions about what some specialist claims the Canons do or don't mean.

But wait.   

I was interested in the question, "does acceding to the Constitution imply acceding to the Canons?"  

Haily doesn't answer that. He leads us down an interesting historical romp through the documents of various dioceses, puts together some interesting and amusing possible canons that we would not wish to have to obey, talks about the authority of General Convention and its limits, the matter of obedience to the canons, ordination vows, and finally swoops down on the matter of supreme authority, and finally drags in the Articles of Confederation, finally ending up with an argument against any sort of supremacy clause in The Episcopal Church's rules of governance.  But in the end he did not answer the question I raised.


My understanding is that "acceding to the Constitution (or the Constitution and Canons)" primarily involves the pledge by dioceses not to issue a constitution or enact canons that are contrary to the Constitution and Canons of The Episcopal Church.  That says nothing about changing the Constitution or Canons of The Episcopal Church. It says nothing about the General Convention being the supreme authority of the Church.


I believe that acceding to the Constitution means that the constitution and canons of any diocese will not be contrary to the constitution and canons of The Episcopal Church, not just to the constitution of TEC.


My question, which arose from a comment that Mr. Haily had made earlier on his blog, in which he opined that acceding to the Constitution of The Episcopal Church did not imply acceding to the Canons, remains.  

I believe Mr. Haily to be incorrect on this. And I admit that I may be wrong. But the response he had provided in his latest attempt does nothing to temper my belief that he is incorrect.  His essay takes us down many interesting paths, but not any closer to an argument that holds - one that shows clearly that acceding to the Constitution does not imply acceding to the Canons.

Just to set Mr. Haley's mind at rest, at least to some small extent, I am aware, having been trained in history, of the importance of delving into matters canonical and other wise with some historical depth. I find his depth of such information admirable, and his ability thereby to change the subject tempting.


But the question remains.


18 comments:

Caminante said...

And it is possible to disagree with what someone has written without ad hominem attacks or snide remarks; indeed, it is laudable to address solely the text rather than the person. Period.

Lapinbizarre said...

The speed of his response, and the fact that Hailey saw the need to respond to you at all, indicates clearly that he takes your argument seriously enough to try to spin it in this way. I hate to post the same, lengthy quote on two adjacent threads, but the following paragraph, from a ruling of the California Supreme Court, indicates that, spin hard though he may, Mr Hailey hasn't a leg to stand upon in his own state:

"It is a bit late to argue that [the Dennis Canon] was not effectively adopted, a quarter of a century later, and, in light of the consistent conclusions of the out-of-state cases that that canon is, indeed, part of the Episcopal Church's governing documents, the argument seems dubious at best.   But, in any event, this is one of those questions regarding ‘religious doctrine or polity’ ․ on which we must defer to the greater church's resolution.   Over the years, the Episcopal Church has consistently taken the position that [the Dennis Canon] was effectively adopted."

Makes you why people are still wasting Bishop Schofield's money.

Fred Schwartz said...

Father Mark,

Mr. Haley, has thusfar, had his back side whooped but I believe that the only "woofing" that should go on is at the end of the long and tourtuous road we currently call litigation. I might add that he is being paid, and quite handsomely, for his opinion that he espouses on your blog. He is therefore, what we in the research field, call biased. His opinion, in the research field, would be worth little to nothing, not because it is or is not true but rather because it is biased.

Counterlight said...

We may not be experts, but we are interested parties with a huge stake in this case.

Valley Stick said...

In regards to Anglican Curmudgeon's misunderstanding of Episcopal polity, there's no need for a supremacy clause in the constitution itself, it's in the BCP. At ordination the bishop-elect must contract under God; before the bishops assembled and the congregation witnessing to:

"In the Name of the Father, and of the Son, and of the Holy Spirit, I, N.N., chosen Bishop of the Church in N., solemnly declare that I do believe the Holy Scriptures (...) and I do solemnly engage to conform to the doctrine, discipline, and worship of the Episcopal Church." (1979 BCP)

"IN the Name of God, Amen. I, N., chosen Bishop of the Protestant Episcopal Church in N., do promise conformity and obedience to the Doctrine, Discipline, and Worship of the Protestant Episcopal Church in the United States of America. So help me God, through Jesus Christ. " (1928 BCP)

The BCP itself is a legal document of the church per the constitution. See the Preamble.

Joe said...

An ordination vow does not establish anything with regard to a diocese. A diocese exists independent of a bishop.

And as you will note, when there is no bishop, the standing committee is the ecclesiastical authority.

Thus polity in a diocese is not up and down; it is sideways. When there is a bishop he is the authority, when there is no bishop, the elected lay/clergy are the authority.

Point of Order said...

Joe

To your point, the diocese exists without a bishop, but does it exist without the General Convention which created it? Or asked another way, did the diocese exist prior to its recognition?

Parish recognition falls to the diocese, no?

hoofin said...

I happen to think that "accede to the constitution" means accede to both constitution and caoons. But I don't believe that canons enacted that go against state property law are valid.

So, I think, in a number of states, the so-called Dennis Canon should not be relied on by the civil courts to determine property issues.

In TEC, parishes are bound by canons, and those whose administrators or clergy don't follow them should be handed over to those that do. But I believe Al Haley (spelled H-A-L-E-Y, it appears) is right that a diocese can accept or reject PECUSAs constitution and/or canons in toto. This obviously is done by withdrawing from General Convention.

Mr. Haley makes a number of good points to show that nothing about the set up of PECUSA was meant to say that the people who gave property to a diocese in trust also agreed that the national church was entitled to control the property. That was all later interpretation, starting I suppose in 1979.

I don't think it's a question of whether the Dennis Canon was effective adopted--it's rather whether it has any application to the instance where a diocese withdraws from PECUSA.

Valley Stick said...

To Joe: I didn't realize the standing committee could ordain or confirm anyone and the services of the bishop weren't necessary in the diocese. When a diocese is without a bishop is it not merely an impaired intermittent state that will be shortly corrected with installation of a bishop so it can function in episcopal polity? If the standing committee were simply in control wouldn't that make them Presbyterians?

Marshall Scott said...

Joe, I think Valley Stick has a point: a Standing Committee is the "ecclesiastical authority" only in the absence of a bishop. The underlying assumption is that a bishop is required for the life of a diocese, even though provision is made for an absence.

The thing is, that determination is not measured by state law, even when the diocese does incorporate under state law. It is a matter of the polity of the Episcopal Church, its ecclesiology; and that ecclesiology is a theological decision, even when it has civil consequences. That seems to be where Jones v. Wolf comes into play in state supreme court decisions. The courts refuse to make a decision about polity, because that gets into theology. Rather, they accept the polity as described by the church (in our case, in Constitution and Canons). After Jones v. Wolf, the decisions have been that in connectional churches the highest level of authority is where the decisions get made. While the courts in Virginia, South Carolina, and Texas haven't gotten there yet, we also can't say they won't get there. And if, as I expect, it does go to the US Supreme Court, we have every reason to believe that it will stand there as well. It doesn't matter that the US Supreme Court hasn't identified the Episcopal Church as hierarchical. After Jones v. Wolf it appears that courts will simply take our word (or at least the description in Constitution and Canons) on that, and incorporate that into any decision.

Joe said...

Valley Stick:

The constitution says:

"If there be no Bishop or Bishop Coadjutor or Suffragan
Bishop canonically authorized to act, the Standing Committee shall be
the Ecclesiastical Authority of the Diocese for all purposes declared
by the General Convention."

So, anywhere where the words "Ecclesiastical Authority" are used, then yes the standing committee of a diocese without a bishop can do that.

By the way, the word priest is a variation of the word presbyter.
So priests are presbyters.

Joe said...

Marshall:

Since you cite Jones v. Wolf, perhaps you can explain this:

"But there is no reason to restrict the courts to statements of polity related directly to church property. For the constitutionally necessary limitations are imposed not on the evidence to be considered but instead on the object of the inquiry, which is both limited and clear: the civil court must determine whether the local church remains autonomous, so that its members have unreviewable authority to withdraw it (and its property) from the general church, or whether the local church is inseparably integrated into and subordinate to the general church."

Thats the question: Do the members have UNREVIEWABLE authority to withdraw it? The answer, in the case of a DIOCESE, is clearly YES.

There is NOTHING providing for the REVIEW of a decision by a DIOCESE to withdraw.

Marshall Scott said...

Joe: I don't know that I could explain that to your satisfaction. As I have acknowledged regarding Mr. Haley and Anglocat in the previous post, I'm not a lawyer; and you may well have credentials such as theirs. (If so, I'd be happy to hear about them and acknowledge them.)

That said, to answer your immediate question to the best of my ability, it seems clear to me that the passage you cite is, in context, paired with the reference to

In any case, just below that is the sentence that seems in context to state the justices' bottom line: "No provision of the Book of Church Order gives the Session the authority to withdraw the local church from the PCUS; similarly, no section exempts such a decision by the local church from review by the Presbytery." The document in the Episcopal Church (which would certainly also meet the description in Jones v. Wolf of a "hierarchical church," cited just above the statement I quote) would be the published Constitution and Canons. While the case in question related to a relatively local case (congregation vs. presbytery), the relevant authority was the national authority. Just as Constitution and Canons make no provision for a congregation to withdraw from the Episcopal Church, neither do they make provision for a diocese to withdraw from the Episcopal Church.

So, would this not be an appropriate parallel? And if not, why not?

Marshall Scott said...

I'm sorry. My second paragraph was truncated. Let me complete it:

That said, to answer your immediate question to the best of my ability, it seems clear to me that the passage you cite is, in context, paired with the reference to Serbian Orthodox Diocese v. Milivojevich:

"[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them."

I think the passage you quote is dependent on this, rather than a contradiction of it. It states that it is the "rules and regulations for internal discipline" of the hierarchical church that are the standard used to determine whether the local church can be independent; or so it seems to me.

Joe said...

Marshall:

"When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies..."

Where are these ecclesiastical tribunals that decide disputes over the government and direction of a DIOCESE at the NATIONAL level?

See - the Episcopal Church doesnt have them.

In fact, the Constitution specifically limits the jurisdiction of a Bishop:

Article II, Section 3:

"Sec. 3. A Bishop shall confine the exercise of such office to the Diocese in which elected, unless requested to perform episcopal acts in another Diocese by the Ecclesiastical Authority thereof, or unless authorized by the House of Bishops, or by the Presiding Bishop by its direction, to act temporarily in case of need within any territory not yet organized
into Dioceses of this Church."

Thus a bishop cannot do anything in a diocese except at the invitation of the ecclesiastical authority - who is - the bishop or the standing committee, if the see is vacant.

Joe said...

Point of Order:

"To your point, the diocese exists without a bishop, but does it exist without the General Convention which created it? Or asked another way, did the diocese exist prior to its recognition?"

I guess that depends on how you read the following provision:

Article V, Section 1:

"After consent of the General
Convention, when a certified copy of the duly adopted Constitution
of the new Diocese, including an unqualified accession to the
Constitution and Canons of this Church, shall have been filed with the Secretary of the General Convention and approved by the Executive Council of this Church, such new Diocese shall thereupon be in union with the General Convention."

How does the "new Diocese" become in union with the "General Convention" if it doesnt exist prior to its recognition?

hoofin said...

Marshall Scott says:

I think the passage you quote is dependent on this, rather than a contradiction of it. It states that it is the "rules and regulations for internal discipline" of the hierarchical church that are the standard used to determine whether the local church can be independent; or so it seems to me.

I think the Milivojevich case was a lemon. It was 7-2, with Rehnquist as a dissent. The problem was that it only focused on one of the two methodologies in the 19th century Watson v. Jones case.

What happened after, in 1979, with Rehnquist in the majority, is the Supreme Court heard Jones v. Wolf. This case re-emphasized the "neutral principles of law" aspect of the original, 19th century Watson v. Jones.

There are very few "internal tribunals" in the Episcopal Church, and none which hear property matters, for obvious reasons. Their decisions would have no legal effect in state law, and would be highly embarrassing when that fact would be pointed out.

hoofin said...

Marshall Scott says:

In any case, just below that is the sentence that seems in context to state the justices' bottom line: "No provision of the Book of Church Order gives the Session the authority to withdraw the local church from the PCUS; similarly, no section exempts such a decision by the local church from review by the Presbytery." The document in the Episcopal Church (which would certainly also meet the description in Jones v. Wolf of a "hierarchical church," cited just above the statement I quote) would be the published Constitution and Canons. While the case in question related to a relatively local case (congregation vs. presbytery), the relevant authority was the national authority. Just as Constitution and Canons make no provision for a congregation to withdraw from the Episcopal Church, neither do they make provision for a diocese to withdraw from the Episcopal Church.

The problem that I am having is that Al Haley makes it very clear, here:

http://accurmudgeon.blogspot.com/2010/11/constitutional-changes-more-on-church.html

that in 1895, the Episcopal Church expressly rejected the notion that General Convention is the Supreme Authority in the denomination. This means that a local diocese can pass a canon that is contrary to what the General Convention has enacted, and the local canon should govern.

On the issue of supremacy, if "the highest judicatory to which the matter has been carried" (quoting Watson v. Jones, and Milivojevich) has determined that a national canon can be trumped by local enactment to the contrary, then what stops a diocese from withdrawing from the denomination?

If you can disregard one national canon, then why can't you disregard all of them?

The hierarchical-congregational pattern of analysis has a real problem with situations where the hierarchy has left it up to a subordinate or constituent part to decide issues of doctrine or worship.

This is scary, because frankly the higher federal courts have been silent on this question, but it reappears time and again in the governing structure of the Episcopal Church. I am sure, also, that it appears in far Eastern religions and contemporary Bible churches like the megachurches who use TV to spread the Word.