Law and Ecclesiastical Polity: A Theological Approach

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Thursday, July 19th, 2012

By Jordan Hylden

The passing of Resolution A049 to authorize rites of blessing for same-sex couples was a cause of joy for many, and a cause of sadness for others. But one way or the other, the resolution has created something of a theological puzzle—for what does it mean to “authorize” rites that declare God’s blessing upon same-sex unions, while at the same time stipulating that those rites are “provisional,” and cannot be performed without the permission of the diocesan bishop? What status does such a rite possess when it manifestly has not reached the level of consensus within even the Episcopal Church, let alone among the increasingly divided Anglican Communion and our ecumenical partners?

Given these issues, the theological difficulty is clear: In what sense can it now be said that with the passage of this resolution by General Convention, a priest of the one, holy, catholic, and apostolic church may now declare God’s blessing upon the union of same-sex couples? Is it not the case that any such blessing would have to be bestowed, as it were, only “provisionally”—with the implication that “this Word of God is for trial use”? And if so, how can it possibly carry the authoritative weight of the church’s apostolic blessing?

Bishop Stephen Miller of the diocese of Milwaukee suggested during debate that the rites be offered to the church not as ecclesially “authorized,” but instead as “commended” as a means of generous pastoral response to same-sex couples. While doing so would have been not without problems of its own, it would have been the wiser course to take—for at bottom, that is all that General Convention has done and could have done given the state of the church’s reflection on the issue. We have not yet reached the point where it would be possible for the church genuinely to authorize such rites in the name of her Lord, notwithstanding the contention that correct procedures have been followed and majority votes attained.

At the deepest level, ecclesial law is not made that way, no matter how much the parliamentary appearance of General Convention (where even time is organized into “legislative days”) may seduce us into supposing that it is. In a recent Living Church article co-authored with Victoria Heard, I argued that the standard-issue understanding of law and politics in the Episcopal Church, as in other mainline churches, owes too much to secular parallels and not enough to theological reflection. The passage of Resolution A049 is, to my mind, a further demonstration of this unfortunate state of affairs. Our judicial actions have outrun their theological warrant, and we find ourselves now in a state of considerable contradiction. In what follows, I hope to shed at least some light on what it means to talk about law in the church, in the conviction that we very desperately need to go back to first principles and think theologically rather than merely judicially about ecclesial law.

1. Lex orandi, lex credendi: Law and Common Worship

The South Carolina deputation’s choice to walk out of General Convention at the passage of A049, while perhaps unnecessary, is only a rather dramatic enactment of what has in fact taken place—we have for the first time created a rite of worship that the whole church cannot share in common, contradicting the classical Anglican conviction that common prayer and common worship are central to our unity in Christ. The Indianapolis Statement’s lament that the rite “subverts the teaching of the Book of Common Prayer” amounts to the same thing—it is a rite the prayers of which we cannot pray together, and just as such is a tear in the fabric of our common life.

It is often said that the issue of sexuality is a disagreement with which the church should be able to live, with room for those of opposed convictions in a united, comprehensive church. This is often said out of a genuine liberality of spirit; Dean Ian Markham of Virginia Seminary has joined many in arguing that Episcopal conservatives should be not only allowed to live their convictions with integrity, but also welcomed in the church as needed voices. Such sentiments clearly were at work in the wording of A049, with the generous addition of a “conscience clause” modeled on the Port St. Lucie statement. But while welcome, this posture has not yet grappled seriously enough with the increasingly deep divisions that have opened up in the church.

Disagreement, as the Catholic theologian John Courtney Murray often said, is in fact a rare and welcome achievement—much of what passes for disagreement is mere confusion, the babbling of people who no longer share a common language. The Lutheran theologian Bernd Wannenwetsch, in his pathbreaking book Political Worship, explains such failures of understanding by pointing to a saying of Ludwig Wittgenstein: “If language is to be used as a means of communication,” he wrote, “there must be agreement not only in definitions but also (queer as this may sound) in judgments.” This is finally true, Wittgenstein wrote, because “to imagine a language is to imagine a form of life.” As Wannenwetsch explains, “Agreement in judgments springs from a shared ethos, and at the same time sustains that ethos. The specific forms of the shared social context of living determine the way things are perceived and the terms deployed. Where different forms of life intersect, on the other hand, or where there is no prevailing form of life at all, equivocations lurk. We think we understand, but in fact we are at cross purposes.” “Moral discussion,” Wannenwetsch warns, “is especially prone to this failure.”

Moral and doctrinal laws truly possess the normative status of law when they flow naturally out of the worshiping church’s life together as the body of Christ, when they form the taken for granted fabric of belief and practice that hold us together as a people. As Wannenwetsch argues, common worship gives rise to a shared ethos, the agreement in judgments that undergirds common language and allows us to speak about both God and the moral life. Far from shutting down disagreement, this common language in fact enables it—for instead of the confusion of equivocation, we are enabled to disagree intelligibly about the goods of the Christian life, in such a manner that genuine consensus becomes a possibility. We may argue, for instance, about whether private charity or public provision is the best way to care for the poor, or about what immigration laws are required to do justice to the alien in our midst, but our arguments only have form because of our shared understanding that the poor and the alien among us are to be cherished and cared for, rather than despised for their weakness or cast out as barbarians. And we would not share this if not for the fact that we are joined together in common worship of our Lord, the one who told us of the Good Samaritan and sought out the lost and the least.

To Anglicans, this line of thought should sound familiar. As Michael Ramsey liked to say, Anglicans do their theology to the sound of church-bells—what we believe is inseparable from how we worship; the law of prayer is the law of belief. Anglicans historically have been reticent to pin down the “essentials” of doctrine in any precise manner, and instead have required conformity to certain received church practices, chief among them common worship and the common reading of Scripture. In other words, instead of the Augsburg Confession or a pope, we have a common language and form of life, handed down to us in ordinal and prayer book.

Common worship, however, is increasingly a memory of the Anglican past. It is perhaps not often enough noted that the balkanization of the Episcopal Church (and the larger Anglican world) may well owe a great deal to the proliferation of ecclesial forms of life corresponding to different forms of worship—Rite 1, Rite 2, choose-your-own “Rite 3,” Enriching Our Worship, the 1662 prayer book, the New Zealand prayer book, and so on. As our common inheritance has fragmented, so too has our common ecclesial life. We struggle to communicate because we struggle to share a language; focal terms like “mission,” “Gospel,” “hierarchy,” “sin” and “communion” lack shared reference; conversations break down and move to the courts.

Some kind of plurality in liturgical and musical form, of course, has long been a commonplace in the church’s life, but genuine discord in form is deeply problematic. At bottom, “worship wars” and liturgical struggles are so distressing to many because they raise fundamental questions: Are we any longer worshiping the same God? And if not, is it not the case that we are no longer one body? Is the deity named “Creator, Redeemer, and Sustainer” the same as the Father, Son, and Holy Spirit? Must we humbly kneel before the throne of mercy for access to the Father for Christ’s sake, or may we confidently stand in God’s presence with no need to confess our sins? Are we proclaiming what God has done for us in Christ, or what we can do to help God’s dream come true? Are we declaring the forgiveness of sins, or are we assuaging feelings of guilt? And are we declaring God’s blessing upon what God has not blessed?

Liturgical forms that do not join Christians together in common worship, by expressing discordant rather than harmonious judgments about God and the Christian life, have fundamentally failed at their purpose. A rite of Christian worship in which the whole church cannot participate is an oxymoron. To create a “provisional” rite of blessing for same-sex unions, with the express knowledge that the rite cannot and will not be authorized by a substantial portion of even the Episcopal Church (and already stands rejected by the wider Instruments of Communion), is to have set forth a contradiction in terms.

2. Law and Common Counsel

Participants in General Convention often describe their experience as like being a small cog in a giant legislative machine. There is too much business to attend to everything with the care it requires; there are too many people to allow for genuine deliberation instead of microphone sound-bites; the sheer procedural complexity of it all makes it difficult at times to even understand what is being voted on, and allows those skilled in the dark arts of parliamentary maneuver to have a disproportionate influence. By the end, innumerable resolutions have been passed covering everything from statehood for the District of Columbia to sexual ethics, but how many of them can be said to represent the considered judgment of the apostolic church in the name of her Lord?

Bernd Wannenwetsch, drawing upon the work of Gabriel Hebert, makes a crucial distinction between parliaments and councils. Parliaments are in essence vast machines that exist to turn majority opinion into law, and to do so quickly in the face of the pressing need for decisions. They are not meant to foster consensus (think of the shouting match that is Prime Minister’s question time), but rather to reach an outcome satisfactory to the majority. Councils, on the other hand, are explicitly ordered toward reaching consensus in the truth. They are unhurried, for they regard it as far more important to speak with one voice in God’s name than it is to make a decision. They know that truth often does not lie with the majority, or with those skilled in debate—just as often, truth lies with the dogged few (like Athanasius and his party, contra mundum) or with the still, small voice of those possessed of holiness and wisdom rather than articulacy and political skill.

Unlike parliaments, councils do not make laws by legislative fiat, by imposing the will of the majority upon all and sundry. Rather, councils know that law in the church is begotten not made, recognized as part of the logic of the Logos, the Word of the Father who created the world, became incarnate in the person of Jesus Christ, and bears witness to himself by his Spirit. As such, true church laws are not made by parliaments, but in council—through the timely process of taking counsel together as the body of Christ, hearts lifted up in worship and prayer to a common object of love, joined together at the Eucharistic table in one common life, and gathered around the common reading of the Scriptures. As we are joined together in one faith, one Lord, and one baptism, we discover as we take counsel together how God has knit all created things together in Christ, and how we might as Christ’s body order our common life in lives of harmonious variety. Here, as Richard Hooker knew, is where the laws of ecclesiastical polity are found.

Any student of church history knows, of course, that the church’s record on this point is decidedly mixed. But even the church’s failures demonstrate the necessity of conciliarism—the Great Schism between East and West, for instance, turned on the lack of genuine consensus in support of the addition of the filioque clause to the creed. Legislation simply has no power to paper over real division, and often inflames it. Our presiding bishop has spoken wisely on this point, decrying the political processes that wind up dividing the church into winners and losers.

There is, of course, a place for parliamentary procedure and democratic decision-making in the church’s life. On some matters, decisions must indeed be made—what shall the budget look like? Who qualifies for the pension fund? Shall we sell headquarters in New York and move somewhere more affordable? But on other matters, when we cannot yet speak with a common voice, we must learn how to wait—not endlessly, but in the expectation that the Holy Spirit will guide us in God’s time into all truth.

Moreover, if counsel is to be genuinely common, it must involve all those whose life it affects—as the ancient dictum has it, what affects all is to be decided by all. One often hears it said that the Episcopal Church is autonomous, and must remain so if she is to preach and live the Christian faith in her particular context. To a certain extent, this is of course true. But the issue of contextualization requires considerably more nuance than is often allowed. Oliver O’Donovan puts it wellin his Church in Crisis: it is, he points out, incoherent to tell someone that while I think what you are doing is morally wrong, you should go on doing it all the same. Genuine pluralism is possible, given contextual difference—in some cultures, O’Donovan explains, arranged marriages might make the most sense given circumstances, while at the same time in our own we are right to hold that young people should be free to choose their own mates. But it is another thing altogether to hold that in some cultures it is quite all right to sell young females into sexual bondage, while in our own it is nonetheless wrong. The lesson is clear: some divergences in matters of faith and life will be quite justified given contextual difference, while others will not.

Some things, in other words, will be heretical and immoral anywhere, given the determinate contours of the apostolic Gospel and God’s creation. And if we are to be able to tell the difference between legitimate and illegitimate divergence, we need the voices of people who stand at some distance from our cultural location, who can see things with fresh eyes and tell us where we’ve gone off the rails. Everyone knows that Episcopalians are a relatively homogenous group, even for all our efforts at inclusion and diversity—we are largely white, affluent, educated, older, and of course American. This is where, in the end, our cherished autonomy and our claims to have discerned the movement of the Spirit ring hollow.

Ephraim Radner argues in his important article “Authority Under Larger Authority” (TLC, 14 Nov. 2011)that General Convention’s legislative authority is properly seen as diaconal and custodial, in service of a larger catholic process of Christian reasoning that faithfully preserves what it has been given for the sake of the whole church throughout the world. In matters particular to our context, we can and should take counsel together about how best to proclaim the Gospel in our time and place. But in all else, we stand in need of the counsel of others, of our Anglican brothers and sisters from around the globe and from the wider Christian oecumene. In one sense, it was wise of this summer’s convention to decline to take a position on the Anglican Covenant—we are indeed not yet of one mind, and so we were right to wait. But it remains the best avenue we have to begin seriously taking counsel together with the entire Anglican family, not just within our rather small and parochial household of faith.

General Convention, in short, ought to be not a parliament, but a council—and she will only be a true council when ordered toward the common life of the broken body of Christ in all places.

3. Canon Law and the Canon of Scripture

No discussion of ecclesial law can be complete without finally turning to the canon of Scripture, the authoritative kanon or rule by which the church’s life is measured. As the Yale theologian David Kelsey reminded us years ago in Proving Doctrine, it is axiomatic to say that the Scriptures are authoritative for the church, for that is the very definition of what it is to call a book canonical Scripture. But to say that, Kelsey goes on to point out, is not to have thereby resolved all issues, but instead to have started in on a highly contested discussion.

Dean Ian Markham has observed that conservatives are needed voices in the Episcopal Church, because they refuse to allow the question of biblical faithfulness to take a back seat. The Indianapolis Statement bishops placed the issue front and center in their dissent to A049: “We believe,” they wrote, “that the Scriptures clearly teach that God’s vision for sexual intimacy is that it be exercised only within the context of marriage between a man and a woman… Our dissent from this action of the 77th General Convention is thus rooted in the teachings of our own Church; in the historic biblical and theological witness upon which those teachings rest.”

Careful work by biblical exegetes such as Richard Hays and Robert Gagnon has made it highly difficult to dismiss the claim that the Indianapolis Statement puts forward—the biblical witness concerning homosexual conduct, Hays and Gagnon contend, is clear and unequivocal, unlike that with respect to women’s ordination or divorce and remarriage. At the very least, then, it must be said that the Indianapolis Statement bishops have put forth a serious and weighty charge to which supporters of A049 must respond—has General Convention in fact been disobedient to the canonical Scriptures, the “rule and ultimate standard of faith” for the life of the church?

As Oliver O’Donovan has argued, to agree with Hays and Gagnon on the exegesis of Scripture does not yet end the theological discussion, for there yet remains the difficult task of exegeting the world. Is it the case that the phenomenon of homosexual identity, which Michel Foucault and others have shown to be a unique feature of the modern world, is a new thing that the canonical Scriptures and their historic reading in church tradition were not equipped to address? Or is it rather the case that it is a result of what St. Paul called a culture given over to idolatry; an attempt to grasp after a secure identity in a world that has exchanged substantive communal traditions for the will-o’-the-wisp of happiness construed as the endless pursuit of individual, internal desires?

O’Donovan is quite right, as is David Kelsey, to hold that a firm commitment to the authority of Scripture cannot bypass such difficulties; we must address what Rowan Williams called the “further questions” that the biblical text raises precisely because we must always ask ourselves whether we remain obedient to Scripture in this particular context.

But once we have done so, through reading the Scriptures in common worship and common counsel, we must recognize that canon law is in the end subordinate to the canon of Scripture. The tradition has long held canon law to be divided into two parts—divine law, unchangeable and given by God, and ecclesiastical law, made by human beings to order the church’s life in accordance with divine law. Ecclesiastical laws may take on a variety of forms, so long as they are fit for their ultimate purpose, but if they conflict with divine law they are null and void.

The actions of General Convention this summer have run the risk of doing so, meriting what Bishop Mark Lawrence of South Carolina called his “grievous concern.” The 77th General Convention has attempted to authorize that which the plain and canonical sense of Scripture prima facie forbids, without the consensus of the Episcopal Church, the Anglican Communion, or the wider church catholic, and in doing so has created a rite of worship in which the whole body of Christ cannot share. It has not, in short, authorized what it purports to authorize. Bishop Andrew Waldo of upstate South Carolina said in floor debate that while he wanted to vote for A049, he could not do so since the theological warrant for it did not yet exist. If more had followed his lead, it would have been the better part of wisdom.

In their 1992 volume The Crisis in Moral Teaching in the Episcopal Church, Philip Turner and Timothy Sedgwick argued that our church in large part has failed to articulate a clear and coherent moral vision; that we have failed to be a “teaching church,” and so have become too captive to the passing winds of culture and politics. Few would argue that matters have improved since then. Our failure to formulate together the genuinely normative ecclesial laws that emerge naturally out of a common life and language has meant that positive law and judicial fiat have arisen to take their place, as our many court battles and transparently political Title IV accusations demonstrate.

We have the opportunity over the next few years to change the parliamentary shape of General Convention, to re-examine old assumptions and habits and think afresh about how we might take counsel together to discover truly authoritative laws for the church. Our judicial reach at present far exceeds our theological grasp, but nothing prevents us from following Richard Hooker’s lead and thinking again about law and ecclesiastical polity.

Jordan Hylden, a doctoral candidate in theology and ethics at Duke Divinity School, is a candidate for holy orders in the Diocese of North Dakota.

July 19 2012 05:24 pm | Articles