Conciliation Accord: What It Means

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Saturday, March 9th, 2013

The recent Conciliation “Accord” announced between several bishops and their accusers over charges they violated canons in filing an amicus brief in Texas is a minor event.  But it does fit well into a larger and disturbing pattern of TEC’s current leadership. That complaints were filed and charges brought against the bishops in the first place, such as to make this conciliation process necessary, represents gross misconduct on the part of the complainants in Fort Worth and of the Presiding Bishop’s office. It is misconduct not only according the canons as they now stand, but according to generally accepted ethical standards. That other TEC bishops and leaders have failed to protest this misconduct is a matter of shame for our church and for them.

The complaints and subsequent charges alleged that the bishops (and two ACI priests, about which later) violated canons by advising the Texas Supreme Court, in an Amicus brief, that the court should not wade into the property dispute between the departed and the continuing dioceses of Fort Worth in a way that demanded an adjudication of TEC’s Constitution. On the basis of the First Amendment and in conformance with our own TEC Canons (IV.19.2 makes it a violation to seek the secular court’s “interpretation of the constitution” and polity of our church), our brief asked that the court not engage in such interpretation, and gave reasons why not.  If complaints were to be filed, they ought to have been filed against those of the continuing Fort Worth diocese and the PB’s office. They lodged the initial lawsuit and argued for the court’s engagement in interpreting our church’s constitution.

As it was, however, the Fort Worth Standing Committee and bishops and others filed complaints against the bishops who signed the brief. In doing so, they set up a disciplinary process that was in the control of their co-litigants – the PB’s office – in Texas. Two things can be said here that are straightforward and point to the misconduct involved. First, the filing of these complaints was a direct attempt at intimidation and harassment of disinterested “friends of the court” in the course of a trial, in an effort to further their litigation. Second, the PB’s office embraced the disciplinary process in full violation of the canonical and ethical demands of impartiality. We would hope that the courts – whether civil or simply that of public opinion – will openly and forcefully reject this misconduct.

The intimidation element in this affair cannot be overstated, because it goes to the prudential decisions made by the bishops in the Conciliation process and Accord. That the PB’s office is not above manipulating canons, facts, and standard modes of communication against members of our church for the sake of its litigation needs is well-established, particularly with regard to bishops viewed as obstacles to these needs. Having at its disposal millions of dollars from TEC’s trust funds and budget to support its litigation and disciplinary attacks on its opponents, the threat of such discipline by the PB”s office carries with it now the promise of unequal and indeed overwhelming financial advantage in the course of truly expensive demands. The probability of un-canonical, but nonetheless effective, discipline and deposition against bishops who publicly disagree and resist the PB’s litigation strategies is now lodged in precedent.

Having been formally charged with violation of the canons, the Amicus bishops were offered the route of a “conciliation” process with the complainants, a peculiar provision in the new disciplinary canons. The bishops themselves accepted this route out of two prudential motives: first, to avoid the potential bankruptcy of their dioceses through continuing legal fees as well as protecting their dioceses through the maintenance of their ministries; second to preserve the integrity of their voices and witness within TEC. To repeat: that these prudential choices were thrust upon them is due to the initial acts of intimidation by the complainants, with the PB’s office’s collaboration.

That there was an “accord” at all is perhaps surprising. There is a good deal of misperception already about its implications, but in fact there is little new ground that the document provides. It stands rather as a mirror of the status quo.

First of all, it should be underlined what an Accord is in this case: an Accord brings to completion a disciplinary process; that is all. An Accord has no canonical or legal status; it arises from a “conciliation process” and affects the parties who signed it in the context of that process. It declares of itself that its effects are pastoral (‘healing, etc’), not precedential. It is the statement that, in itself, brings to closure (“full and final resolution”) the process begun with the initial complaints.

In the Accord, the Amicus bishops have continued to affirm not only their views in the filed Amicus brief, but also their view that such a filing is in conformance with TEC’s constitution and canons. There has been no change in this affirmation.

The positive elements, in paragraphs 5-7, represent the prudential burdens the bishops have assumed.

They have agreed not to file briefs such as the one in question outside their own dioceses in matters that might contest the legal position of the PB’s office, until such time as General Convention addresses this topic. However, this agreement does not withdraw (and cannot, legally) any filings made already. Indeed, canons exist already that stipulate that US courts will not be had recourse to for the adjudication of TEC affairs. The Amicus brief filed by these Bishops likewise called on the First Amendment as grounds for the Courts refraining from determining the constitutionality of arguments made by TEC parties in dispute over property and hierarchical understandings. On this score, as we have noted, it is the continuing Diocese of Fort Worth and the PB’s office that are in violation, and remain so.

The bishops also stated that their views are “likely a minority opinion” on the polity matters. “Minority” among whom? The statement’s vagueness in meaning constitutes its complete vacuity, and its status as window-dressing. These views may not be held by a majority of the current House of Bishops focusing only on current litigation objectives in the secular courts. So much the worse for them. But these views are the traditional understanding of the polity of TEC. Indeed, as recently as 2009 one of TEC’s ecclesiastical courts ruled that dioceses are “wholly autonomous” and in 2001 Bishop Jane Dixon submitted affidavit testimony in federal court on “the hierarchical structure of the Episcopal Church, and the diocesan bishop’s position at the apex of that hierarchy as the apostle, chief priest, pastor and ecclesiastical authority of the diocese.” When the trial court accepted this interpretation of TEC’s polity, repeating the conclusion that the bishop is the “apex of the hierarchy,” the current Presiding Bishop joined 25 other TEC bishops in filing an amicus brief in support of the trial court’s ruling in favor of Bishop Dixon.

In fact, to the extent that it is now recognized that there are different views as to the nature of TEC’s polity, whether majority or minority, this only reinforces the argument set forth in the amicus brief that the secular courts cannot constitutionally adjudicate these conflicting views.

Paragraph seven likewise states the obvious fact that, to the extent constitutional and not superseded by other canons or civil laws, canons of the church limit the authority of Bishops. In the case of the Dennis Canon, the question is how this canon is to be interpreted in the law, and in turn, how that would limit or otherwise the Bishops’ authority. These are presently disputed matters. An Accord cannot and has not resolved that dispute. In this case, a platitude has conveniently embellished an otherwise vacuous affirmation.

The amicus brief stated explicitly that it took no position on the ultimate property issues in the Texas lawsuit. This fact has been deliberately ignored by the complainants and the PB’s office. The Dennis canon was itself not mentioned in the brief. That this irrelevant paragraph was demanded in the Accord shows the extent to which the real purpose of this conciliation was to assist the secular litigation objectives of the Presiding Bishop and her co-litigants.

The fact that the amicus bishops chose to offer a sign of goodwill in assuming some of the costs involved in the conciliation process is a mark of their humility and charity. While these costs are probably not inconsiderable, they are nonetheless well below the obscene levels demanded by a full disciplinary process as it might have unfolded.

By and large, it seems that the bishops tried to fulfill their prudential obligations in this accord. But we also emphasize that, however construed, the pressures they were responding to were thrust upon them under duress, by the misconduct of the complainants and the PB’s office.

It is, furthermore, a strategy of intimidation on the latter’s part that cannot succeed. The arguments of the Amicus brief, and the constitutional reasoning behind it, are now well-publicized and available for all. They have also, to the present, not been refuted in any compelling way by the PB’s office. In fact, despite their paying literally hundreds of thousands of dollars to “expert” witnesses, that witness itself is concocted of misreadings and misquotations from the constitutional and historical record of our church.

Lastly it should be stated clearly: members of ACI will not be intimidated by the complainants or the PB’s office or those who collude with it. Currently, Turner and Radner of ACI have had formal complaints lodged against them in their respective dioceses (Texas and Colorado). Those dioceses have decided to leave these complaints open thus far, refusing to act on them for whatever reason, whether out of desire to leave the threats hanging in the air or out of ignorance regarding the canonical demands before them or simply out of a desire not to make waves in a difficult moment. In any case, the members of ACI are in the business simply and quite transparently of articulating and stating our understanding of the theology and polity of our church, to which we are committed. These are not matters over which to negotiate; nor are they matters about which to fear. They are duties of Christian honesty.

For the Amicus Brief itself:
http://www.anglicancommunioninstitute.com/wp-content/uploads/2012/04/FW-amicus-brief-as-filed.pdf

For a summary of the Argument regarding the Constitution and Polity of TEC:
http://www.anglicancommunioninstitute.com/2012/10/polity-politics-or-the-rule-of-law-a-response-to-bishop-whalon/

March 9, 2013
The Rev. Dr. Christopher Seitz
The Rev. Dr. Philip Turner
The Rev. Dr. Eprhaim Radner
Of the Anglican Communion Institute

March 09 2013 03:18 pm | Articles