Misrepresenting ACI’s Concerns About The Constitutionality of Supplemental Liturgical Material

Written by:
Tuesday, April 21st, 2015

Last week we published an analysis of proposals to have this General Convention authorize supplemental liturgies that would be neither part of the Book of Common Prayer nor a proposed revision of it. Based on the detailed text of Article X of TEC’s Constitution, we concluded that General Convention does not have this authority and that whatever authority does exist to authorize supplemental rites resides in the bishop of each diocese. We noted that the Standing Commission on Liturgy and Music appears to agree with us since it has proposed amending Article X to assign this authority to General Convention and explained the need for such an amendment with an analysis of that article that is identical to our own reading.

Tobias Haller, who served on the Marriage Task Force that has put forward various proposals to the upcoming General Convention, objects to our analysis. We have engaged Mr. Haller through comments on blogs, and that engagement has yielded interesting information about what he thinks General Convention is legally capable of doing with respect to liturgical revision. We believe his reasoning is flawed on these matters, and we have stated our concerns straightforwardly. More recently, on his own blog, he has attacked these statements of ours as being the product of simple “ignorance”. Not only does he disagree with our recent analysis, his response begins as follows: “Those who are ignorant of history…are doomed not to know what they are talking about.” Given the importance of General Convention’s upcoming decisions on our liturgies, we need to clarify any misunderstandings about this disagreement.

Haller begins his dismissal of our concerns with an obviously false (implied) premise: that we are unaware that General Convention has purported to “authorize” supplemental materials for a long time. Indeed, we began our own analysis of this issue in part II of our piece with precisely this formulation (“purported to ‘authorize’”) in order to signal that the issue is not the existence of these materials, but their constitutional status. We are well aware of the Book of Occasional Services and Lesser Feasts and Fasts, as are all clergy of TEC.

Careful readers of our discussion would have noticed that we inserted an ellipsis into a quotation from a 2006 SCLM report:

The multiplication of liturgical and musical materials intended for occasional use at the direction of the Diocesan bishop … has rendered the meanings of prayer book phrases like forms set forth by authority with this Church and subject to the direction of the bishop (BCP p. 13) and hymns…authorized by this Church (BCP p. 14) difficult to interpret.

What we omitted from the quote and indicated by the ellipsis was such a laundry-list of supplemental materials as to render the sentence almost unintelligible as written. For the avoidance of doubt, for us their existence is not the issue.

Perhaps Haller’s title was only a rhetorical flourish; and so we should address the substance at issue. His main argument appears to be that if something has been going on for a long time it must be constitutional. For starters, he should take this point up with the SCLM and the Standing Commission on Constitution and Canons, which jointly have been attempting over the last 25 years to amend Article X of TEC’s Constitution to give General Convention authority to authorize these supplemental materials. If they are constitutional anyway, why the bother? Why try again now?

In any event, Haller’s legal reasoning at this point is naïve, common though it may be. Constitutional questions are not something like adverse possession: as if doing an unconstitutional act openly and notoriously for ten years makes it constitutional. There is often a significant period of time when the unconstitutionality of a legislative act goes unrecognized. Indeed, whenever a court finds such an act unconstitutional it is true by definition that a majority of the legislators themselves had previously thought the act constitutional. And there are well known cases in which the Supreme Court itself had previously upheld the constitutionality of statutes it was later to strike down. As we know, Brown v. Board of Education overruled a similar case, Plessy v. Ferguson, that sixty years earlier had found segregation statutes constitutional. Similarly, Lawrence v. Texas overruled a Supreme Court case decided only seventeen years earlier when it ruled state sodomy statutes unconstitutional.

Haller’s other arguments similarly do not convince. . His second one is that “nothing in the Constitution or Canons forbids General Convention authorizing rites supplemental to the Book of Common Prayer.” This argument from silence is a tricky one; although TEC acknowledges in court, as it must, that there is no provision in the Constitution forbidding a diocese from withdrawing from the church, it continues to argue (both insistently and unsuccessfully) that a diocese cannot leave. As is well known, we have concluded that a diocese has the legal right to withdraw, but our argument is not based on mere silence but instead on a careful analysis of TEC’s legal structure. (One of us (McCall) testified in the Quincy trial on just this issue.)

Similarly, our analysis of the constitutional issues surrounding supplemental liturgical materials is not based simply on silence in the Constitution, but on the fact that a) General Convention is given carefully-defined authority over liturgical matters; b) another office (diocesan bishop) is explicitly given the authority Haller would assign to General Convention; and c) the church has repeatedly recognized the need for amending the Constitution to give General Convention authority in this area but has failed to do so. By pointing to silence in the face of these facts, Haller is essentially conceding the main point we were making: the Constitution does not give this authority to General Convention.

Haller next resorts to what is, frankly, a recognized logical fallacy when he argues that “ACI seems to think that the House of Bishops (and Deputies) cannot do as a body what any individual bishop can do in her own diocese (authorize a liturgy for a special occasion or for circumstance not provided for in the BCP).” He is quite right that we believe that General Convention cannot do what bishops do simply because it incorporates a collection of bishops. By suggesting that they might, as a self-evident proposition, Haller here commits the fallacy of composition, which, as one common source of information defines it “arises when one infers that something is true of the whole from the fact that it is true of some part of the whole (or even of every proper part).” An oft-used example of this fallacy is this: every piece of this machine is lightweight; therefore the whole machine is lightweight. To take an obvious example from TEC that exposes the fallacy: every diocesan bishop has the right to give or withhold consent from episcopal elections; that does not give the House of Bishops that right—much less the House of Deputies! Even under the former rule that required that consents for some elections be given at General Conventions those consents were given by bishops with jurisdiction, not the House of Bishops voting as a whole.

To return to history: Samuel Seabury himself authorized supplemental liturgical materials in the first years of TEC’s existence. But more on point for the current issue is the view taken by the other half of the first HOB, William White. In 1789, he was deeply unhappy with a decision by the first General Convention after TEC was organized to deviate from the Church of England’s Book of Common Prayer in the Apostle’s Creed. He expressed this in a December 1789 letter to Seabury, quoting here from Clara Loveland’s seminal book on the founding of TEC:

Bishop White insisted that the Convention had no authority to reject the English Prayer Book as the basis for their revisions, adding that

its being the general opinion of the majority of the members of the late General Convention, will never justify me to my own conscience, in making it a ground for conduct. On the contrary, I hold it to be my duty to God and the Church to presume the opposite….

Finally, we end by noting the first point we made in our essay to which Haller objects. There is a New Episcopal Church, which he seems to be defending. It has cut the constraints tethering it to constitutional governance and Prayer Book worship and is soaring Icarus-like to ever greater heights. What could possibly go wrong?

Without a constitutionally defined episcopal office and a Constitution respected as such, TEC will become a triennial General Convention Church with triennially defined identity.

April 21 2015 | Articles

The Episcopal Church and the New Episcopal Church

Written by:
Tuesday, April 14th, 2015

In 2013 an “Ecclesiology Committee of the House of Bishops” produced something they called “A Primer on the Government of the Episcopal Church and its underlying theology.” We have evaluated the document in detail at the Anglican Communion Institute website. Recently the document appeared again, this time at a House of Bishops meeting in North Carolina (See the weblog of Bishop Dan Martins).What is the purpose of trying to secure a place for this understanding of TEC’s polity at this point in time?

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April 14 2015 | Articles

Called To Serve The Lord: An Address To Some Clergy From The Episcopal Diocese of West Texas

Written by:
Tuesday, March 10th, 2015

This is a hard time in the life of our church. It’s easy to spend most of our time obsessing about all that has gone wrong. However, the subject I have been asked to address, “Called to Serve”, points in a different direction. It points away from our discontent and toward a vision of a reformed and renewed church—a church identified by a commitment to service. “Called to Serve” has branding potential for a renewed and reformed church, but the potential will not be realized unless two words are added to the proposed brand name. Let’s not talk about “called to serve”. Let’s talk about “called to serve the Lord.” If we want to brand ourselves in a way that calls us toward a vision of a new day let us be known as servants of the Lord.

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March 10 2015 | Articles

The Marriage Taskforce and the Balkan Solution

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Wednesday, February 11th, 2015

In what follows I do not intend to respond to the Taskforce on Marriage’s theological papers. The papers deserve such a response, but not here. Rather, I wish to respond to the Taskforce Report on basis of its canonical proposal and its implied approach to the Church’s decision-making, both of which I believe are seriously deficient and potentially harmful to our church’s common life and future witness. I will argue that the Taskforce not only avoids the deep disagreement within the church over the matter of marriage, but stokes that disagreement. And I will conclude that General Convention should reject the Taskforce’s proposal, and do so on the basis of seeking a more generalized and negotiated “peace” within the church.

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February 11 2015 | Articles

Christian Marriage and Civil Marriage: A Legal Perspective On The Marriage Pledge

Written by:
Tuesday, November 25th, 2014

My ACI colleagues Ephraim Radner and Christopher Seitz have recently published a “Marriage Pledge” in the journal First Things in which they undertake to refrain from serving as agents of the state in marriage by, e.g., signing government-provided marriage certificates. Couples will be asked to contract civil marriage separately from “weddings that seek to establish a Christian marriage in accord with the principles articulated and lived out from the beginning of the Church’s life.” Their reasoning is that as civil marriage has been progressively redefined it no longer coincides with the Christian understanding of marriage: “to continue with church practices that intertwine government marriage with Christian marriage will implicate the Church in a false definition of marriage.”

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November 25 2014 | Articles

The Ethics of Sex, Marriage, and the Family

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Saturday, September 20th, 2014

download the original version of this article here (pdf) Rightly Handling the Word of Truth: Scripture, Canon, and Creed A Theological Conference of the North American Lutheran Church, The Citadel, 21-22 July, Charleston, SC “The Ethics of Sex, Marriage, and the Family” C. Seitz Personal Remarks When Carl Braaten emailed me to participate in this […]

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September 20 2014 | Articles

Divisions Deepen in Pilling

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Saturday, December 7th, 2013

The Church of England House of Bishops’ Working Group on Human Sexuality, chaired by Sir Joseph Pilling, published its report (“the Pilling Report”) on November 28, in advance of discussion by the House of Bishops in December and the whole College of Bishops in January (see this TLC report by John Martin). It is, as Lambeth Palace tweeted, a report to not of the Church of England but it will set the agenda for future discussions and so its content, rationale, and significance are important. They can be summed up by exploring nine areas (building on the analysis I offered earlier this year here).

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December 07 2013 | Articles

Polity “Primer”: ACI Response

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Friday, November 29th, 2013

An “Ecclesiology Committee” committee advising the House of Bishops has released a “Primer” on polity prepared with the assistance of various consultants identified at the end of the document. The identity of those preparing this document—most have participated as counsel or witnesses or have been listed as potential witnesses in the various lawsuits—makes obvious that the primary purpose of this document is its perceived usefulness in litigation. ACI principals have also appeared as witnesses in this litigation. This is our response to the claims asserted in this Primer.

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November 29 2013 | Articles

After Quincy: Rethinking The Purpose Of Our Common Life

Written by:
Wednesday, October 23rd, 2013

The recent decision in Illinois upholding the property rights of dioceses who withdraw from General Convention may not stand up on appeal. But the opinion’s reasoning, by Judge Thomas Ortbal, was perhaps the most careful and thorough on record in such cases, and will likely have to be taken into account in all future judgments. In any case, the decision offers a chance for sober consideration of our church’s mission and its relation to ecclesiastical structure.

I am someone who once assumed that TEC was a single entity, and that dioceses were an integral part of this entity, gears in a larger machine. The notion of a diocese “leaving” TEC never crossed my mind, and in fact seemed simply antithetical to the meaning of “Church”. I still think this, deep down, and much of my academic writing on the Church has been devoted to trying to understand how Christian unity properly founds the very nature of our Christian faithfulness, as it is engaged by God’s gracious gift of Himself to our rebellious hearts and hands: God for the godless.

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October 23 2013 | Articles

The Instruments of Unity and the Way Forward

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Friday, October 11th, 2013

Archbishop Josiah Idowu-Fearon at the Toronto Conference

Click Here to Listen To The Audio

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October 11 2013 | Articles

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