Author Archive

Good Order And The Re-Definition of Marriage

Written by:
Sunday, June 21st, 2015

On the eve of a General Convention that will consider several important proposals to change the definition of marriage in the Church’s doctrine, discipline and worship, much attention is directed, perhaps belatedly, to the question of good order. Several bishops generally sympathetic to the idea of same sex marriage have expressed concerns that the way in which that innovation is now being proposed violates “good order.” Rejecting this charge, the Task Force on the Study of Marriage, also sympathetic to same sex marriage, has offered an amendment to the marriage canon that it claims will promote rather than undermine “good order.” The Task Force’s secretary, who states that he was “one of the members most closely involved in …the wording of the canon,” responds to the question of order:

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June 21 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

Affidavit Of Mark McCall

Written by:
Saturday, September 14th, 2013

In April I submitted as affidavit in federal court in South Carolina on behalf of Bishop Mark Lawrence. It was one of several affidavits submitted by the Diocese of South Carolina in response to litigation filed against Bishop Lawrence by parties supporting the position of the Episcopal Church in South Carolina. My affidavit included work on issues relating to TEC polity that I have done over the last three years but had not previously published. This affidavit has been part of the public record for several months. ACI is now posting it online.

My affidavit contains a detailed analysis of the legal structure and history of TEC. The following paragraphs provide an overview of the analysis:

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September 14 2013 | Articles

South Carolina: Upholding The Church’s Discipline By Upholding The Constitution

Written by:
Monday, October 17th, 2011

One of the allegations now being made against Bishop Lawrence is that the decision by the Diocese of South Carolina to continue to adhere to the prior Title IV canons rather than adopt the controversial new revisions constitutes abandonment by being an open renunciation of the discipline of TEC. Last March Alan Runyan and I published an article that undertook a careful examination of the history of TEC’s Constitution as it relates to clergy discipline. We started at the beginning in 1789, but gave particular attention to those constitutional revisions in 1901 that the drafters of the new Title IV claim “profoundly changed” the constitutional allocation of authority in the church. That article provides conclusive proof that the Constitution as now in effect allocates authority for discipline of priests and deacons exclusively to the dioceses except for appeals.

This issue has been much debated in the history of TEC, and our article contains a detailed examination of that history. But throughout those years of debates, the result was always the same: disciplinary authority remained with the dioceses. Our article provides compelling proof that the revisions to Title IV are unconstitutional. It cannot be a renunciation of the discipline of the church to uphold that discipline as specified in the Constitution by resisting unconstitutional encroachment on the diocese’s exclusive authority. One might disagree with the opinion of the Diocese of South Carolina, but one cannot regard upholding at great personal cost the constitutional polity of the church as always understood in the past as an “open renunciation.”

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October 17 2011 | Articles

Ordination Vows: Do Bishops Pledge to Conform to Unconstitutional Canons?

Written by:
Tuesday, September 28th, 2010

It has become commonplace for those supporting the current majority in The Episcopal Church to claim that a bishop’s ordination vow, particularly what is called the “Declaration of Conformity,” is a vow to accept the majority’s interpretation of TEC’s polity that would grant unfettered supremacy to General Convention’s actions. For example, Fr. Mark Harris made this argument when criticizing proposed resolutions in the diocese of South Carolina:

Now, lets see: The Constitution of The Episcopal Church says this: I do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, and to contain all things necessary to salvation; and I do solemnly engage to conform to the Doctrine, Discipline, and Worship of the Episcopal Church.” (Article VIII of TEC Constitution)

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September 28 2010 | Articles

The 16 Countries of TEC

Written by:
Tuesday, June 22nd, 2010

It has become commonplace for The Episcopal Church to proclaim itself an international church of sixteen countries. For example, the minutes of the October 2009 Executive Council record that:

The Presiding Bishop gave Opening Remarks. She asked for a moratorium on use of “National Church” and enumerated the countries in which The Episcopal Church [hereafter, TEC] works.

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June 22 2010 | Articles

Losing Their Nerve: What The Courts Would Discover If They Examined TEC Polity Afresh

Written by:
Sunday, February 7th, 2010

Several years ago I was in a meeting at a large London law firm. We were working on a very complex matter, and this was one of a series of meetings that went on for several years. This particular one was quite large with 30 or so lawyers from several London and New York law firms, as well as representatives of Her Majesty’s Government. During the morning, one of the junior partners of the host firm was asked to address a difficult legal question. He spoke for a considerable time, over an hour, without notes, and then lunch arrived and we went off to a different conference room to eat. But as we were filing back into the meeting room after lunch we could see what this lawyer had done over the break because piled up on his chair and the table in front of his seat was an enormous stack of law books with little handwritten notes and yellow post-its stuck in here and there. As we walked in and saw the pile of books, one of his senior partners turned to this lawyer and said “what happened, David? Did you lose your nerve?”

Today I want to talk about what the courts would see if they lost their nerve and went back to the books and took a fresh look at the law and the facts concerning TEC polity. But I want to state one thing very clearly at the outset: there is no guarantee the courts will ever do this. They may simply assume that TEC has a central hierarchy like the other churches, the Roman Catholic Church, the Orthodox churches, and the Church of England, and never seriously engage the issues I am going to address. But what if they do engage? What if they undertake a serious examination of this issue? What would they see?

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February 07 2010 | Articles

TEC Polity, The Civil Law and the Anglican Covenant

Written by:
Monday, October 19th, 2009

Bishop Stanton has already addressed the subject of TEC’s polity from the perspective of its history and constitution. In just a bit, Dr. Turner will talk about the Anglican covenant, its provisions and background. What I want to do briefly is address both of these topics, but from a different angle: first, to talk about TEC’s polity from the perspective of the civil law and then to look at the Anglican covenant from the perspective of TEC polity. I hope when I am done that this is coherent and I can tie it all together!

First, TEC polity. And to begin, why do we care what the civil law has to say? The answer to that largely lies in the fact that there are now several civil lawsuits around the country in which courts are addressing TEC polity. This is not the way we want it to be, but it is the way it is. And barring some unexpected negotiated settlement of these lawsuits, the secular courts will have profound things to say about TEC polity that will affect us all. So we have to care.
First, TEC polity. And to begin, why do we care what the civil law has to say? The answer to that largely lies in the fact that there are now several civil lawsuits around the country in which courts are addressing TEC polity. This is not the way we want it to be, but it is the way it is. And barring some unexpected negotiated settlement of these lawsuits, the secular courts will have profound things to say about TEC polity that will affect us all. So we have to care.

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October 19 2009 | Articles

Statement in Response to Father Mark Harris

Written by:
Thursday, April 23rd, 2009

Fr. Mark Harris has published today a further article on his blog, “Preludium,” concerning the “Bishops’ Statement on the Polity of The Episcopal Church,” published yesterday by the Anglican Communion Institute, Inc.  Fr. Harris is a member of the Executive Council of The Episcopal Church. Fr. Harris had previously disclosed on his blog obviously confidential […]

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April 23 2009 | Articles

Statement on the “Sentence of Deposition” of Bishop Duncan

Written by:
Tuesday, September 23rd, 2008

Prior to the meeting of the House of Bishops last week The Anglican Communion Institute, Inc. warned that the “proceeding against Bishop Duncan clearly belong[s] to a larger effort to create an office of Presiding Bishop, and a way of proceeding in the present season, at odds with the constitution and canons of this church.” Following the questionable vote, ACI noted that “the legitimacy of the House’s action and the Presiding Bishop’s leadership has been placed in serious question before the eyes of the Communion and the larger public. No one should minimize the role this may play in the unfolding re-establishment of the Communion’s common life.”

ACI’s concerns about canonical abuse and procedural legitimacy are not allayed by the purported “Sentence of Deposition” of Bishop Duncan now made public. In her memorandum to the House of Bishops, dated September 12, 2008, the Presiding Bishop addressed the question whether the canonically required vote by the House of Bishops was “by a majority of bishops present at the meeting at which the matter is presented or, on the other hand, by a majority of all the voting members of the House whether or not in attendance.” She concluded that “the vote must be by a majority of all the bishops who are at the meeting at which the vote must be taken and who are entitled to vote.”

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September 23 2008 | Articles

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