Moreover, the ACC committee cannot fulfill the role defined by the Covenant, which makes the Section 4 committee “responsible to” both the Primates’ Meeting and the ACC, in the case of the latter as it was defined by its former constitution. Under the ACC’s new corporate arrangement, the members of its standing committee now comprise the entire membership and management of the ACC for legal purposes. Nor is there any meaningful way in which that committee could be said to be responsible to the Primates’ Meeting as contemplated by the Covenant.

Accordingly, it is necessary for covenanting churches to clarify what committee they intend to perform the functions specified in Section 4. Adopting the Covenant without such a clarification would suggest that the ACC standing committee is intended for this role when it is manifestly unsuited for the task. But it is not necessary to amend the Covenant text for this or broader purposes because the text does not explicitly identify the ACC committee as it is now constituted. Unnecessarily amending the Covenant would also run the very real risk of splitting the Communion into groups that had adopted different texts. The final text as proposed constitutes a common understanding of the Communion and its structures, widely held by the member churches, that should not be given up through unilateral amendment.

What is required, therefore, is not an amendment but a clarification to specify transitional procedures and to establish on a provisional basis a committee capable of performing the tasks defined in Section 4. Among other things, this provisional committee would arrange for a committee recognized by the covenanting churches to fulfill the Covenant duties on an ongoing basis.

Accordingly, we offer the following suggestion for a way forward in light of the confusion over the status of the ACC and the committee specified in Section 4. We propose that each church adopting the Covenant also adopt the following statement of clarification and attach it as an integral part of the adoption to the instrument by which they formally enter into the covenant:

At the time the text of the Anglican Communion Covenant was sent to the member churches of the Anglican Communion in December 2009, no existing body met the requisites for the Standing Committee of the Anglican Communion described in Section 4 of the Covenant. Since that time, that situation remains the case, and, further, the ACC itself may have been replaced by a different body with a constitution and legal structure such that neither it nor its standing committee are capable of functioning as contemplated by the final text of the Covenant. Accordingly, this adoption is expressly subject to the following clarification of terms used in the Anglican Communion Covenant:

The Standing Committee of the Anglican Communion, as specified in Section Four, shall initially and provisionally consist of the Primate or one ACC member designated by each Church of the Anglican Communion that has either adopted the Covenant pursuant to section 4.1.4 or begun the process of adoption and such initial Committee shall have full authority to adopt rules that provide for the appointment of their successors and the conduct of the committee’s business. For the avoidance of doubt, the functions of this Standing Committee of the Anglican Communion as specified in Section Four of the Covenant shall not be exercised by the committee known as “the Standing Committee” that is established by the Articles of Association of the Anglican Consultative Council unless and until the provisional Standing Committee of the Anglican Communion is satisfied that the Standing Committee of the Anglican Consultative Council can fulfill the duties specified in Section Four.

The Anglican Consultative Council, as specified in section 3.1.4, shall be a council defined by the membership and functions specified in the constitution referenced in that paragraph or any successor constitution that establishes a council enjoying all the rights and performing all the functions of the council established by the constitution referenced in section 3.1.4.

Although we have written before of our concerns over the substance of the new Articles of Association of the Anglican Consultative Council, until now we have said little about our concerns over the procedures followed by the Anglican Communion Office in managing the development of these Articles. Others voiced complaints and we remained hopeful that the ACO would respond to these complaints with transparency and by providing satisfactory answers. This has not happened.

We are dismayed that the Communion Office is either unable or unwilling to provide even the most basic information to those who have raised serious concerns: what information was provided to the provinces; when was it provided; and what was their response. An amendment of the constitution is a significant action by an organization, especially one subject to legal duties. Maintaining this information is the most basic level of diligence required of an organization’s secretariat. The lack of transparency and public accountability throughout this process is one of the most regrettable episodes of Communion life in recent years.

Our concerns are only heightened by information suggesting that the ACO may not have followed advice given to it on the necessary procedures for adopting the new Articles. In November 2008 Robert Fordham of Australia, then a member of the ACC standing committee and the “convenor” of its “sub-committee on Constitutional Issues,” addressed the Joint Standing Committee on the status of the new constitution and “what steps have to be taken at this stage.” He advised that the revised draft of the Articles needed to be submitted to the provinces for ratification at that time. He noted that after ACC-13 had approved a draft of the new Articles in 2005 the ACC’s legal advisor, Canon John Rees, had held “extensive discussions” with the UK charity commission and had engaged in “considerable work” to produce a new draft for the February 2008 JSC. At that meeting in February 2008, the JSC then amended the draft further before approving it. Mr. Fordham then states:

The next and final step is to circulate the Constitution in this new format to each of the Member Provinces of the Communion to seek their ratification. For the new Constitution to come into effect support will be required from two-thirds of the 39 Provinces.

This necessary final step is distinguished from previous communications with the provinces referred to by Mr. Fordham in the same memorandum:

The Secretary General sent an Explanatory Memorandum to Primates and Provincial Secretaries in May 2006 seeking their response to each of the ACC-13 resolutions dealing with the Constitution and although many of the Provinces have not replied in writing those that have have been supportive of this proposal and as indicated above the Primates have also given their endorsement.

The Fordham memorandum concludes that:

To summarize, the revised ACC Constitution incorporating two of the three proposals for constitutional change passed by ACC 13 has now been finalized and in accordance with the decision taken at the last meeting of the Joint Standing Committee will now be sent together with a comprehensive explanatory Memorandum to the Provinces of the Communion seeking their ratification. (Emphasis added.)

It is hardly a surprising conclusion that the ratification requirement would apply to the actual text proposed for adoption. Article 10 of the prior constitution required that amendments “shall be submitted by the Council to the Constitutional bodies [provinces].” A plain reading of this provision indicates that the final text should be approved by the full council and then sent to the provinces for ratification, especially when the amendment is an entirely new constitution. It hardly comports with the concept of ratification to suggest that the ratification occurs “in principle” prior to the detailed drafting of the document to be ratified.

There is nothing in the public record, however, to indicate that the recommendation of the Constitutional Issues sub-committee was followed. We are now being told that provincial consents were sought, not in 2008 after the revised draft was prepared, but in 2006, presumably through the memorandum sent out by the Secretary General in May 2006 that Fordham mentions when he reports that “many of the Provinces have not replied” even two and a half years later.

In fact, the account now being given publicly goes straight from the 2005 draft Articles to provincial approvals (finally) in 2009 and only then to the Charity Commission.

For example, Canon Rees stated on August 11 that:

Q. There’s recently been media speculation that proper procedures weren’t followed as regards getting assent to the change from the old constitution to the new.

It’s good to see that there are Anglicans out there who care that things are being done properly. Certainly no one in the Communion is above criticism. I’ve already explained that a change to the Constitution was planned and discussed at several ACC meetings. Then, as required by Article 10 of the old constitution, the draft was circulated for approval by the provinces of the Communion after the 2005 Conference. It finally achieved the requisite level of replies—two thirds of Anglican Communion provinces—and this was reported to the ACC in Jamaica in 2009, after which it was submitted for registration at Companies House and by the Charity Commission.

Q. Were any major changes made in the final Constitution since the approval in 2009?

No. Due to changes in company and charity law some points needed tightening up as to directors’ duties and on conflict of interest, but there are no differences of substance. There are noticeable differences of layout (what used to be in the ‘Memorandum’ is required by the Charity Commission now to be in the ‘Articles’, which serves to simplify rather than complicate), but the material remains essentially the same as in the drafts circulated 2005-2009. (Emphasis added.)

And on August 12, 2010, the ACO stated that:

Copies of the new constitution with an accompanying letter were sent by Canon Kearon to all Provinces in 2006, and it was discussed and approved by the primates at their meeting in 2007. By the time of the ACC meeting in Jamaica two-thirds of Provinces had indicated their assent. (Emphasis added.)

Both of these statements indicate that the now outdated 2005 draft was the one circulated to the provinces, not the revised draft approved by the JSC in 2008 after “considerable work” and “extensive discussions.” Indeed, there is no indication in the statements by the ACO and Canon Rees of any efforts to obtain ratification of a version that included changes made after 2005.

It is interesting to compare these explanations with those offered by the Secretary General. In a January 2010 letter to the progressive blog, the Episcopal Cafe, Canon Kearon stated:

The change (in effect a change to the Constitution) required approval in principle from a majority of the provinces, and the Standing Committee just before ACC 14 in Jamaica in 2009 noted that the requisite number of approvals had been received. The change to the status of the Primates’ Standing Committee with respect to the ACC and its Standing Committee came into effect when approvals had been received. The company itself is now in the process of registration with the Charity Commissioners. (Emphasis added.)

And in a letter last month responding to concerns raised privately by ACI, but since shared with other members of the Communion, Canon Kearon did not even mention provincial ratification in outlining the eleven-year process of transforming the ACC. He pointed to approvals by the ACC in 2005 and the Primates’ Meeting in Dar es Salaam in 2007 (where it was not mentioned at all in the communiqué issued at the end of that difficult meeting) and then noted:

The text was finalised at the Standing Committee meeting just before ACC 15 in Jamaica. Soon after that meeting the Constitution (or Memorandum and Articles) was filed with Companies House in London prior to approval by the Charity Commissioners. Companies’ House put the text on its website (as is usual), and so the document was in the public domain, and approval by the Charity Commissioners was received just before the recent Standing Committee meeting, at which point it became operative.

Indeed, neither the memorandum by Mr. Fordham nor the statements by Canon Kearon indicate whether even the earlier 2005 draft was ever sent to the provinces. The Fordham memorandum states that the 2006 Explanatory Memorandum referred to the ACC resolutions, not the text of the proposed Articles. But the ACC resolution said only that:

The Anglican Consultative Council:

1. notes and approves the draft memorandum and articles proposed by the Standing Committee in order to reconstitute the work of the Council within the framework of a limited liability company as requested by ACC 11 and ACC 12
2. authorises the Standing Committee to make such final amendments to the documentation as may be needed in the light of this Council’s discussions and the views of the Primates Meeting, and in accordance with legal advice and any further comments received from the Charity Commissioners
3. requests the Standing Committee to establish such a body with charitable status in accordance with the such approved draft Memorandum and Articles as amended as a result of any such views, advice or comments
4. resolves to transfer to the new charitable company all the Council’s assets and liabilities in due course and to wind up the affairs of the existing legal entity once the new arrangements are in place.

Nothing in this resolution suggests that the constitutional provisions requiring provincial ratification would not be followed as expected after the draft had been revised to reflect the “final amendments,” the “views of the Primates’ Meeting,” and “comments from the Charity Commissioners.” A council resolution could not modify this constitutional requirement in any event.

Some provinces have stated publicly that they have no recollection of ever being given the proposed Articles themselves or that they received a statement that approval would be presumed unless objection was made (a procedure not contemplated by the constitution). Perhaps this is why Canon Kearon himself says only that approval was sought “in principle,” which is not the ratification required by the constitution.

In addition to the matter of what version was submitted to the provinces for ratification and when, a separate question of how what was being submitted was described to the provinces may be important.  When the process was initiated at the 1999 meeting of the ACC in Dundee, the process contemplated was that conversion to limited company status was to be consistent with the requirements of the charity commissioners of England and Wales and with legal advice but be “so far as possible in all other respects in accordance with the existing constitutional arrangements.” (ACC-11, Resolution 6)  As recently as January 6, 2010 in a letter to a blogger authorized to be made public by Canon Kearon, he stated that the new articles of the charitable company “closely reflect the Constitution of ACC but also conform to the requirements of the Charity Commissioners in the UK.”  With this background, and bearing in mind that significant requirements can be subsumed in technical language, the question may reasonably be asked whether the provinces were ever told about changes that altered governance in significant respects but were not required by conversion to a limited company or charity regulation.  For example, were they told about how legal membership in the ACC would be redefined or how the process of voting on future amendments would be changed, including a change that would ensure that what is at issue here – provincial approval of amendments – would never be an issue again because the requirement for provincial approval would be removed?

The bottom line is that neither we nor the Communion at large knows what consents were given, when they were given and on what information they were based. We note, for example, that the Church of England states that it consented in 2009 and TEC has stated its General Convention did not give consent. Were they among the “many” provinces that did not respond to the 2006 letter or did they conclude along with the Constitutional Issues sub-committee that further consent was necessary after 2008? We simply do not know the answers to these basic questions.

This is no longer merely a matter of restoring trust to the ACO and the ACC standing committee that has been badly damaged by this process. It is now a question of whether there is a real and functioning ACC in any legal continuity with the entity recognized by the Communion’s provinces; whether necessary approvals were ever obtained to adopt the new constitution and transfer assets from the former trust; and whether anybody who claims to represent it actually does any longer.  We urge the ACO as a matter of priority to make public:

• the May 2006 Explanatory Memorandum sent to the provinces by the Secretary General;
• any other communications from the ACO to the provinces on the new constitution;
• the 2005, 2008, and 2009 drafts of the new Articles;
• all minutes of the standing committee addressing this topic;
• a list of provinces ratifying the new constitution with the dates on which they did so; and
• any other materials necessary to a full understanding of this process.

We note that the standing committee has now begun to make minutes of its meetings publicly available in the interests of transparency. We believe that providing the documents enumerated above would be consistent with this move in the direction of transparency and is crucial in light of the important questions that have been raised about this process. As long as this is not dealt with straightforwardly, openly, and immediately, the credibility of a range of Anglican leaders, touching matters that go well beyond the ACC itself, is being undermined. There may be perfectly good answers to all these questions, but at the moment they have not been given and the attendant uncertainties and confusions are proving deeply destructive of trust in the Communion.

Yesterday the Anglican Communion News Service published an interview with Canon John Rees, legal advisor to the Anglican Consultative Council, that responded in part to questions we previously raised in our paper, “Contrasting Futures for the Anglican Communion: A Transformed ACC and the Anglican Covenant.” We are grateful to the Anglican Communion Office, Canon Rees and the ACNS for responding directly on this matter of wide interest and for their renewed commitment to transparency in the process of structural reform now underway in the Communion. We continue to believe that these changes raise significant questions, that many of these questions remain unanswered, and that these questions should be considered throughout the Anglican Communion. We emphasize that the questions we raise below are not posed to Canon Rees alone, but are addressed more broadly to all those interested in the future of the Communion.

1. Canon Rees begins by providing helpful background to the constitutional changes recently implemented at the ACC. He notes that one of the objectives of the new Articles was to eliminate personal liability to which the trustees responsible for managing the Communion’s charitable assets might be exposed. As we emphasized in our original paper, this is an objective we fully share. But reiterating this objective does not address the concern we raised, which was instead whether “this legal entity should be one of the Communion Instruments itself and [whether] the fiduciaries charged with overseeing these charitable activities should be the same as those comprising one of the bodies responsible for faith and order in the Communion.”

Surely no one wants the trustees exposed to personal liability. But are we equally certain we want those who share responsibility for faith and order in the Communion to be those same charitable trustees having fiduciary duties under the charity law and legal duties imposed by the Companies Acts? In our paper, we emphasized in particular the role of the Communion’s Primates, who bear special responsibility for “doctrinal, moral and pastoral matters that have Communion-wide implications.” These are not duties recognized by English company law or even by the new ACC Articles.

We noted in our paper that the ACC as originally conceived did not contemplate that it would itself become an English company or even an English charity. At its second meeting in 1973, the ACC authorized the formation of an English charitable trust for the purpose of owning “on behalf of the Council” all “property and funds situated in the United Kingdom.” We have now come to the point that the ACC, at its creation an international unincorporated association not necessarily tied to UK law, has itself become completely identified legally with that charitable property-holding entity, now an English company governed by UK and EU law like any other English company. Has there been informed debate in the Communion on this transformation? Even if this is the appropriate legal vehicle for an affiliate that owns UK property, is this the best structure for a Communion Instrument having responsibilities relating to faith and order?

2. One of our concerns with the new Articles is that they reverse the traditional relationship between the full ACC council and its standing committee, giving the standing committee primary management authority and the full council a lesser and secondary role. Canon Rees responded to this concern by saying:

That’s very wide of the mark. The drafting committee took care to ensure that the plenary meeting of the Council would continue to have the same democratic rights to appoint the Standing Committee that it always had in its unincorporated state. The wider membership attending the plenary meetings of the ACC every two or three years remains the body which appoints its members of the Standing Committee and entrusts the Committee with the Council’s work in between its meetings.

But this response only highlights that the full council, formerly the consultative body itself that functioned as one of the four Instruments, is now a body whose primary legal responsibility is to appoint the standing committee. Canon Rees also notes that the standing committee members are now not only the trustees for charity law purposes but also the company directors for company law purposes. He does not acknowledge, however, what was a primary concern expressed in our paper: only the standing committee members are now the members of the new company that constitutes the ACC and only they are responsible under the law for company governance. Other UK church-related charities converting to limited company status have done so without demoting former members to remove their status as legal members, including some with membership that far exceeds that of the ACC.

In fact, taken together Canon Rees’ response raises more questions than it answers. Why were only the standing committee members made the legal members of the new company? What legal function does the full council have other than electing the standing committee? Does UK company law impose additional governance restrictions on the ACC not specified in the Articles, such as a 75% vote by the standing committee to approve changes to the Articles? Does this voting requirement supersede the provisions in the Articles or are the different provisions cumulative? If the opportunity was taken to re-define the ACC’s objects, why were those of the full council made narrower than those of the standing committee? And most importantly, is this relationship between the ACC and its standing committee, a committee that was briefly identified as the “Standing Committee of the Anglican Communion,” one that the Communion finds appropriate for the role of one of its four Instruments? Given the lack of transparency during much of this process, it is doubtful that informed consideration was given to these often technical issues by the member churches.

3. We also raised in our original paper the concern that the new ACC Articles potentially infringe on the other Instruments, especially the Primates’ Meeting and the Archbishop of Canterbury, in that they reflect an assumption that the other Instruments can be governed in some way by the ACC’s Articles. We were concerned that this might be claimed as a precedent for using the ACC constitution to control the other Instruments in the future. Canon Rees responded by saying that:

Neither the Archbishop’s role as the pivotal Instrument of Communion, nor his role in calling together the Primates’ Meeting (which itself has no formal constitution) are in any way restricted by these Articles. As the Archbishop’s Registrar for the Province of Canterbury, I would have been very concerned if I had thought there was any intention to do so.

We share Canon Rees’ concern over any infringement of the other Instruments by the ACC Articles and are reassured by his comments. We noted in our original paper that the Archbishop has not in the past been guided by definitions in the ACC membership schedule in gathering the Primates’ Meeting. We understand Canon Rees to be stating that the Archbishop retains this discretion unfettered by the new ACC Articles. If this is not what he intended, we hope he will clarify how the Archbishop’s role is not “in any way restricted by these Articles.”

We also note Canon Rees’ assurance that the diversity criteria imposed on the Primates “at best can operate only as an aspiration.” This too raises several questions. Why should the Primates’ aspirations be determined by the ACC? Since the Primates only became part of the ACC and its standing committee in 2009 when the new company structure was approved how can this diversity aspiration be derived from the former constitution? And to return to the issue that lies behind many of our concerns: how confident can we be that these diversity criteria—characterized as mere aspirations—will continue to be viewed so benignly now that the ACC is a company governed by UK company law under which these provisions acquire the force of law?

4. As we have noted often in recent months, we share Canon Rees’ “unease” over the impact of British equalities legislation on religious bodies, especially the ACC. Our understanding is that the scope of religious exemptions from these regulations has been the source of controversy between the UK government and EU authorities and that this issue will not be settled without further judicial decisions. We are neither as sanguine about the future scope of these exemptions nor as resigned to their applicability to the ACC as is Canon Rees. Interestingly, Canon Rees points to the Church Mission Society as another religious body that has adopted the structure of an English company, but it is significant that it has also adopted and incorporated into its constitution a robust declaration and ethos statement that articulate its core values, a key element in considering the application to a particular entity of any religious exemption to the equalities laws. As CMS notes:

One factor behind the Ethos Statement was the necessity to have an official document in response to European legislation which safeguarded the right to employ only persons in sympathy with the aims and ethos of a society engaged in evangelistic mission.

Notwithstanding its role as a Communion Instrument responsible for faith and order the ACC has no comparable ethos statement other than the provisions of Lambeth resolution 1.10 and the Communion moratoria, which the standing committee has refused to implement in a consistent way. How will the exemptions to the equalities regulations be applied to the ACC in the future?

More importantly, Canon Rees simply assumes that the ACC is an entity that must be governed by UK law. We disagree. The ACC was conceived as an international association. The Church of England is one of its members, but no different in this respect than any other. Although the Archbishop of Canterbury is the president of the ACC, this is a role defined by Communion agreements, not Church of England canons or British secular law. Obviously, to the extent the ACC owns property or operates in the UK it must comply with UK law. But the same is true of any other country in which it might operate or own property. This limited aspect of the ACC’s purpose need not dictate all other matters. One traditional way associations and corporate bodies have dealt with this problem has been to create separate structures for the purpose of property ownership and the legal duties such ownership entails. TEC itself, and many of its dioceses, operate in just this way. In an era of widespread concerns over encroachments on religious liberty-especially concerns, now shared by Canon Rees, that were not yet apparent when the ACC embarked on this restructuring eleven years ago-the choice of an appropriate legal entity and appropriate governing law must not be dictated by secondary objectives or, worse, by default. Protection of religious liberty and the integrity of faith and order must be at the forefront of these considerations.

5. Although this is not a matter we raised in our original paper because we are not privy to the underlying facts, Canon Rees acknowledges that changes were made to the new Articles after they were approved by the Communion’s member churches. Canon Rees says that these changes were not “major” or matters of substance. But legal details matter! That is why the member churches have lawyers. Can it ever be appropriate for the ACC to adopt a new constitution that has not been approved in final form by its churches? Is this even effective legally? To resolve legitimate concerns about the ratification process, it would be helpful to know what member churches consented to the new Articles, when they did so, what explanatory material was provided to the member churches with the request for consents and what changes were made after receiving consents.

6. Finally, we note that our original paper dealt in large part with the possible incompatibility of the new Articles with the Anglican Covenant now being considered by the member churches. Canon Rees does not even mention the Covenant in his interview, notwithstanding the fact that he has just rendered legal advice to the standing committee in response to a question raised by the province of Aotearoa, New Zealand and Polynesia suggesting that the Covenant and ACC constitution are not compatible. This advice has not been made public even as the Covenant is being considered for adoption by the member churches. How can they make an informed decision on adoption when this issue has been addressed by the legal advisor but not all the churches have been informed of the answer? And the larger question for the member churches is this: should the member churches ever acquiesce in allowing their Covenant to be, in effect, unilaterally modified through interpretation by the ACC’s standing committee or by UK law? Or should they instead insist that the Covenant is the standard to which the Communion Instruments are accountable?

7. To summarize, Canon Rees’ remarks only underscore the extent to which proper debate on these pressing issues has never occurred. The final text was not seen even by the member churches until disclosed last month by the Registrar of Companies. The proposed Articles were never posted for public comment and debate at any point in the process. The effect of equalities legislation enacted in the last year was not considered at all. Technical matters related to charity law have dictated decisions about the structure and governing law of one of the Communion’s Instruments. The intended scope of the new Articles with respect to the other Instruments remains murky at best. And the relationship of the new Articles to the Anglican Covenant has been discussed by the ACC’s standing committee, but the results of that discussion have not been disclosed to the member churches that are considering adoption of the Covenant. We urge the Communion as a whole, but especially its constituent churches, to begin considering these important issues as a matter of priority. To have the structural coherence it needs the Communion requires a broader focus than the management of UK charitable assets.

This brief notice is yet another signal that the Anglican Communion stands in unparalleled danger. The way in which TEC does business poses a serious threat to the evangelical and catholic identity of our Communion.  I write to point out the nature of that threat and to call upon those responsible for its future health to take vigorous steps to halt an increasingly obvious attempt by TEC to remake the Anglican Communion over in its own image.

For the sake of clarity, I wish to make several things clear.  First, I write as a person who has not left the Episcopal Church and does not intend to do so.  Second, I write as one who has for more than 30 years opposed the theological and ethical directions TEC has taken.  Third, I do not write to convince either group that they have taken a wrong direction.  I wish it were possible to do so. Sadly, it is not.  The progressives within TEC have already proclaimed that history is on their side and that they are acting under the guidance of the Holy Spirit. Those who have left have laid claim to an unquestionable orthodoxy and become self-declared defenders of the faith.  Serious discussion with both groups has become a virtual impossibility.  My hope is that in the midst of the present ideological warfare, faithful reason will prevail, and that a way will be found both to hold TEC’s ambitions in check and maintain the evangelical and catholic identity of Anglicanism.  My hopes and prayers in respect to these matters focus particularly on the Archbishop of Canterbury, the Primates, and the leaders from the Global South who represent the largest and most vital part of the Anglican Communion.  I write with these men and women particularly in mind.

Having stated as clearly as I am able my intentions and hopes, I shall begin. Since the Standing Committee has decided that, in so far as it is concerned, TEC’s position in the Communion is to be decided through an indefinite period of dialogue, it is essential to understand just how TEC understands this process. TEC’s recent history makes one thing perfectly clear.  Dialogue, for TEC, is not a process of disciplined argument designed to clarify issues, expose false reasoning, and arrive at a truth both parties can hold. It is not even a process of critical examination that occurs before taking a disputed action.  Rather it is an aggressive form of self-promotion built around “talking points” rather than disciplined argument—talking points that are meant to beat down opposition to a disputed action already taken.  In short, the decision made by the Standing Committee is in reality a decision to allow TEC more time to gain acceptance for its actions.  It is not, in TEC’s mind, a time to subject those actions to “consequences” or to critical examination.

TEC’s recent history reveals that it now has a standard way of doing business—one that exposes its pleas for dialogue as disingenuous.  What is that way?  One makes changes in disputed aspects of the life and order of the church by breaking the rules and then calling for conversation rather than “consequences.” This standard way of doing business carries with it its own very idiosyncratic notion of dialogue–one that, by laying claim to the prophet’s mantle, will not allow the possibility that one could be wrong and one’s opponent right.  When TEC acts, TEC acts (according to TEC) in the power of the Holy Spirit; and when TEC speaks, TEC speaks (according to TEC) in the power of the Holy Spirit. To be in opposition, therefore, is to oppose both the Holy Spirit and the justice it is God’s purpose to bring to the world. These are shocking conclusions but, given TEC’s recent history, they are unavoidable conclusions–conclusions that if ignored by the Instruments of Communion and the member Provinces, will lead to the demise of the Anglican Communion.

TEC’s recent history makes the truth of these charges abundantly plain.  Let us begin with the first of the more recent challenges to the Communion’s common life–the ordination of women to the priesthood.  Before I begin this tale, I wish to make it clear that I am a strong supporter of the ordination of women both to the Presbyterate and to the Episcopate.  What I do not support is the way in which TEC made this change.  The way in which it was done opened Pandora’s box, and now TEC seeks to spread the bad habits it learned though this event to the rest of the Communion.

Go back to the year 1974. The General Convention of The Episcopal Church (then ECUSA) had twice refused (by a narrow vote) to approve the ordination of women to the priesthood.  After the second refusal, three retired bishops ordained 11 female deacons as priests.  The bishops said they broke the rules as an “obedient” and “prophetic” protest against oppression and an act of solidarity with those who are oppressed.

What were the consequences of breaking the rules? There was an attempt to bring the bishops to trial, but it failed despite committee advice to the contrary.  The House of Bishops did decry the action of their colleagues and went on to pass a motion of censure; but since the bishops were all retired, the motion was of little effect.  It was of so little effect that the following year Bishop George Barrett, yet another retired bishop, ordained four more women to the priesthood.  Once again, no meaningful consequences followed.  On their part, the women involved said that they consented to this action because to wait for another General Convention was to affirm in principle the concept that discrimination against ordaining women to the priesthood may be practiced in the church until the majority changes its mind and votes.  It probably does not need saying, but in case the point is missed, very similar reasons are given by TEC for its recent breach of the moratoria in the case of Mary Glasspool’s ordination as Suffragan Bishop of Los Angeles.

The basic point, however, is that a pattern was established.  There was a prohibition by TEC’s governing body of a proposed course of action.  The action was undertaken anyway as a “prophetic witness.”  There followed assertions that those who acted against the rules ought to be free from consequences because of the righteousness of their actions.  The consequences that ensued were indeed minimal. Continuing conversation was substituted for ecclesial discipline.  A new way of effecting change had been established.  If the constitutional and canonical processes do not go your way, act anyway, deny the applicability of consequences, and then call for conversation.

The same pattern appeared again shortly after the struggle over women’s ordination when the issue of ordaining people engaged in same gender sexual relations arose.  In 1977 Bishop Paul Moore of the Episcopal Diocese of New York ordained a professed and sexually active lesbian to the priesthood.  In response, the bishops did no more than express “disapproval.”  The next General Convention passed a resolution saying, “It is not appropriate for this Church to ordain a practicing homosexual or any person who is engaged in heterosexual relations outside marriage.”

It appeared that the General Convention had spoken definitively on this matter, but some 20 bishops dissented, citing wording in the resolution that might be taken to mean that the resolution was only “recommendary” and not “prescriptive.”  Recommendation was most certainly not the intent of the General Convention!  Nonetheless, the 20 bishops found an unintended loophole, claimed the prophet’s mantle and stated that they would not implement the resolution in their dioceses.

In 1989, 1990, and 1991 the dioceses of Washington DC and Newark ordained men involved in same gender relations.  The justification for these actions was that new experience and knowledge make the ordination of gay people a “justice issue” that must be furthered by a “prophetic” episcopate.  This time, one of the offending bishops, Walter Righter of Newark, was brought to trial; but he was acquitted–not on grounds that the action of General Convention was “recommendary” rather than “prescriptive,” but on grounds that his action was not contrary to the “core doctrine” of the Episcopal Church.

It was now well established!  Within TEC prohibited actions (of a progressive sort at any rate) are not to be subject to meaningful consequences.  Within TEC, just as women’s ordination was losing its status as a matter of reception and becoming a requirement, the question of ordaining persons engaged in same gender sexual relations was becoming what the ordination of women once had been–a matter of “local option” (open to local choice by each diocese).  The consecration of Gene Robinson as Bishop of New Hampshire, despite universal opposition by the Instruments of Communion (including resolution 1:10 of the Lambeth Conference of Bishops), had now become for TEC (according to the way it understands its relation to the rest of the Communion) also a matter of local option.  Apparently, it had also become a matter of sufficient weight to render inoperative Resolution B020 of the 1991 General Convention, which stated clearly that the potentially divisive issues concerning human sexuality “should not be resolved by the Episcopal Church on its own.”  This resolution had never been repealed or changed.  It was simply ignored.  The well-established pattern persisted. If the rules don’t suit a political agenda, break the rules, seek to avoid meaningful consequences and then ask to talk about the matter.

Thus, against the actions of its own General Convention and against the wishes of all the Instruments of Communion, TEC went ahead with the consecration. Of course, the question of the hour was whether or not this time the action would, in the words of the present Archbishop of Canterbury, have “consequences.” The progressive leadership of TEC pleaded in a number of ways for the right of TEC to take this action and for its consequent immunity from consequences.  This plea was not completely successful, however. TEC was reduced to observer status at the Nottingham meeting of the ACC—a precedent not since repeated.

Realizing the disruptive potential of TEC’s action (along with other divisive issues facing the Communion) the Archbishop of Canterbury, along with the other Instruments of Communion, espoused the proposal of the Windsor Report for an Anglican Covenant, the basic premise of which is communion rooted and grounded in “mutual subjection within the body of Christ.”  Further, pursuant to that report, a number of moratoria were agreed upon by the Instruments of Communion, including cessation of gay blessings and ordinations along with border crossings as engaged in by several provinces from the Global South.  TEC agreed to these moratoria and for a short time, but only a short time, claimed to live by its commitment.

The proposed Covenant went through a number of drafts, but a final draft was placed before the Anglican Consultative Council at its Jamaica meeting in 2009.  The proposal was for the Council to receive and consider the proposed covenant and then send it on to the Provinces for ratification.  The first three sections of the proposed Covenant sailed though, but not the fourth–the one in which “consequences” were addressed.  TEC took strong exception to this fourth section precisely because of its concern for consequences.  In its opposition TEC made clear that it had decided to export its domestic way of doing business by introducing the “break the rules, claim immunity and then ask for conversation” syndrome into the operating procedures of the Communion as a whole.

Nevertheless, if the export was to gain acceptance, it required appropriate packaging. Thus, long before the Jamaica meeting TEC began to champion a novel view of communion–one that focuses on mutual aid and fellowship but does not (in contrast to the ecumenical dialogues of the Communion) demand much in the way of common belief and practice.  Its leadership also leveled the charge that the fourth section of the proposed covenant in effect set up a central authority within the Communion that was contrary to Anglican tradition in that it impinged upon the autonomy of the Provinces. It is not difficult to see that both the view of communion espoused by TEC and its objections to what it claimed (falsely) were the polity implications of Section Four served the purpose of exempting TEC from the meaningful consequences that might be expected to follow from its renunciation of its own commitments and its disregard for the accepted teaching of the Communion.

During the course of the Jamaica meeting the extent to which TEC is willing to go both to impose its will and to avoid consequences became patently obvious in ways that (sadly) damaged the credibility of both the Archbishop of Canterbury and the ACC.  TEC began a campaign against Section Four well before the Jamaica meeting. Though a “Resolutions Committee” had been charged with the preparation of resolutions to be considered, the Standing Committee of the ACC took precipitous action.  It drew up its own resolution–one that sought to delay the ratification process by asking only that the Provinces report on progress by 2014.  What is more, this resolution represented something of a compromise. TEC’s Presiding Bishop had previously pushed for a more drastic measure–one that would remove Section Four altogether and delay any duty to consider the Covenant until 2015.  There was, however, strong resistance even to the compromise resolution by representatives of the Global South, and it was never introduced as drafted by the Standing Committee.

When time came for the actual meeting, the Resolutions Committee (which had among its members a significant number of Covenant opponents) produced not one but two resolutions, Resolution A and Resolution B.  The first put forward, Resolution A, was apparently the one favored by the Resolutions Committee.  It contained much of what the Presiding Bishop wanted.  It was partially designed by and strongly supported by TEC’s representatives. It moved, among other things, that Section Four be removed from the draft for further consideration.  In the ensuing debate TEC did all within its power to see that Resolution A passed. Nevertheless, Archbishop Williams spoke against the resolution and the sentiment of the Council seemed largely in agreement with the Archbishop. When they realized that Resolution A was apt to fail, the opponents of Section Four began to propose amendments (one on top of the other) that would incorporate what they wanted from Resolution A into Resolution B that was to be considered next.

Resolution B, among other things, asked the Sec. Gen. of the ACC to send the draft proposal, which included Section Four, to the member Churches of the ACC for consideration and decision on acceptance or adoption.  The purpose of the opponents in incorporating elements of Resolution A in Resolution B was to re-establish what had been lost with the defeat of A, namely, the removal of Section Four from immediate consideration.

The whole process was and remains very difficult to follow, but its clear purpose was to remove any notion of consequences from the covenant under review.  The means of achieving this end was not clear debate over well-understood issues but deliberately confusing and irregular parliamentary maneuvering designed to scuttle Section Four.  Indeed, in the eyes of many observers, there was something unsavory about what went on. In the end, however, the purposes of those who proposed the amendments were not achieved. The upshot of all the confusion and irregularity was that the matter was referred to a drafting committee that rejigged Section Four in a way that left it essentially as before. A final covenant draft with this version of Section Four was then sent to the Provinces for consideration and decision.

From a procedural point of view, Jamaica was a debacle, but it does serve to make clear TEC’s attempt to export to the rest of the Communion its way of doing business.  TEC’s leadership does not agree with Lambeth 1:10 and it refuses to accept the unanimous opinion of the Instruments of Communion that blessing gay unions and ordaining people involved in same gender sexual relations are practices contrary to Holy Scripture.  In short, they reject what the Archbishop has termed “established Anglican teaching.”  This rejection led to the consecration of Gene Robinson as Bishop of New Hampshire.  After this event, in response to heavy pressure from the rest of the Communion, TEC agreed to a moratorium on this practice but pressed to remove from the Covenant any possibility that they would suffer consequences for breaking this agreement. Recently, TEC has in fact abandoned the moratorium to which it had agreed and consecrated a partnered lesbian as Suffragan Bishop of the Diocese of Los Angeles.  Its General Convention has also called for the preparation of liturgies for the blessing of gay unions.  When questioned about these actions, one TEC bishop responded that things had changed and The Episcopal Church had “moved on.”  Now, having renounced their agreement, TEC’s leaders are appealing for dialogue, and the ACC has received a significant grant from an American source to promote the Continuing Indaba Project.

It is this observation that brings me back to the starting point of this essay.  The Standing Committee has apparently acceded to TEC’s way of doing business.  Though TEC has taken actions contrary to established Anglican teaching and against the counsel of all four Instruments of Communion, no “consequences” appear to follow.  A bishop of The Episcopal Church, who allows for gay blessings in his diocese has been seated on the Standing Committee, though ineligible for other reasons as well. The Presiding Bishop of The Episcopal Church also remains a member.  Further, that very same Standing Committee has determined that TEC’s status in the communion must be determined not by its adherence to established Anglican teaching but by an indefinite period of dialogue.  “Consequences,” they opine, must be avoided because that would stifle dialogue on a number of important communion issues.

Further, as reported in the Standing Committee Bulletin of Day 3, when Dato’ Stanley Isaacs proposed that TEC’s place on the Standing Committee and in the ACC be withdrawn when matters of faith and order are under discussion, Archbishop Philip Aspinall (an opponent of Section Four) stated falsely that the Standing Committee did not have power to exclude in this way.  Nevertheless, contrary to Archbishop Aspinall’s assertion, under the new articles the Standing Committee had just adopted, the committee is given power “to regulate their meetings as they see fit.”  The Standing Committee, that, under the old articles, had denied a seat to a Uganda representative at the Jamaica meeting of the ACC, is also given power under the new articles to remove people from membership without cause by a two-thirds vote.

This short history makes plain that the Jamaica meeting of the ACC and the most recent meeting of the Standing Committee have given full support to the TEC way of doing business, and they have done so by means of highly questionable procedures.  Sad to say, most members of TEC with whom I speak see little problem.  They simply do not understand the objections to their way of doing business. As they see it, they have taken an action that is right and now they want to explain what they have done.  Further, they believe it right to deploy the political means necessary to achieve their ends.  Most people I know who oppose TEC’s actions see things rather differently.  As they see it, TEC has broken the rules and as a result there must be consequences if any degree of order is to be maintained within the Communion.  Once proper procedures have been followed, the consequences have fallen into place, and order restored then the conversation can move forward in a proper manner.

Here one comes face to face with a great divide.  The divide poses this question.  Does the Anglican Communion really want its common life to be shaped by TEC’s way of doing business–reject the rules, break the rules, demand immunity from meaningful consequences, and then demand dialogue?  Is this way of being together what we really want?

I pray not!  William Golding, in his Lord of the Flies, has one of his characters cry out in the face of a lawless grab for power, “The rules, the rules, all we have are the rules.”  Taken at face value, this statement is far too simplistic. Rules are made and rules are changed as times and sensibilities change.  But if we are to live together in some degree of peace and harmony (let alone love and justice) there have to be rules, fallible and imperfect though they may be.  However, in both its internal life and its external relations TEC is asking for freedom from the rules it doesn’t like and immunity from any consequences that might follow from breaking those rules.

This is TEC’s way of doing business! However, if the Anglican Communion adopts or allows this way of doing things to continue, it cannot survive as an authentic expression of evangelical and catholic Christianity.  It can only shatter into pieces like a dropped vase.  TEC’s attempt to export its way of doing business must be taken as a dire threat to Anglican identity or that identity will not survive in any recognizable form.  That’s the bad news!  The good news is that TEC’s aggressive stance in support of its own convictions has posed a crucial question to a Communion that wishes to avoid centralized forms of authority.  How is a church that is a member of a communion of churches that does not have a centralized authority able to dissent in a way that does not undermine communion but actually strengthens it?  The answer found in the lives of the saints is to take one’s stand and at the same time accept the consequences of that stand, no matter how unjust they may appear.  In this way, by taking a stand, one lives according the truth as one sees it.  In this way also, by accepting the consequences, one expresses loyalty to and support of the body of which he or she is a member and for which Christ gave his life.  In this way, one makes plain that one takes the stand one has for the benefit rather than harm the body as a whole.

The question buried in the proposed covenant is how a communion of churches that does not have centralized authority can contain dissent without destroying itself.  This is a discussion that has barely begun.  If Jamaica and the recent meeting of the Standing Committee are any indication, that conversation, even at its inception, is not going very well. Given the floundering that has gone on and the irregularities that abound it is a good idea to ask how well we believe TEC’s way of doing business serves the health of our communion, and whether its way of dissent is a godly way or one more designed for conquest.

That conquest is indeed the goal of TEC’s plea for freedom from consequences is manifest in the changed way it treats those who still oppose the ordination of women.  The ordination of women, unlike the ordination of persons involved in same gender relations or the blessing of these unions, is not a matter the Anglican Communion considers established teaching. The ordination of women is a matter for “reception”—a matter that is not prohibited but is to be tested by the Communion over time.  In the eyes of the Communion the ordination of women is an open matter in the way the issues concerning homosexual behavior are not.  However, TEC, whose original approval of women’s ordination left the matter as one of “local option,” has, as a matter of practice, over time made approval of women’s ordination a de facto test for the approval of newly elected bishops. As a matter of practice, within TEC, the ordination of women is no longer a matter of “reception.”  It is a matter of “justice,” and as such cannot rightly be opposed.

It is this change in practice that stands behind the withdrawal of several dioceses from TEC.  These dioceses have not as yet “received” this practice, and, given TEC’s change in practice, feel that there is no way a bishop who shares their views will be approved for ordination when their present bishops retire. The only way they see to retain their ability to receive or refuse to receive this practice is withdrawal from the General Convention of the Episcopal Church.

The point is that the cycle of breaking the rules, demanding immunity from consequences and then calling for conversation has ended not in dialogue but in enforcement, in this case through the misuse of canons and finally in appeal to the secular courts.  Once the practice of ordaining women (which began as an un-canonical act) became for TEC a matter of justice rather than one of reception, it became inevitable that the practice would become one to be enforced.

I note this precedent for one reason.  The ordination of persons involved in “monogamous and faithful” same gender relations is now also considered by TEC’s leadership to be a matter of “justice.”  Given this fact, it is inevitable that it seek to bring about circumstances in which these views can be enforced both within TEC and within the Communion as a whole.  At the moment, TEC claims these “rights” to bless and ordain persons Anglican teaching says are not qualified for these sacramental acts on the basis of local option or provincial autonomy.  Nevertheless, the logic of their view of mission as establishing justice (the millennium goals) will inevitably push toward a mandate for Communion wide acceptance and enforcement.  Dialogue for TEC is but a temporary strategy.  It is not an established way to establish truth.  The truth in TEC’s mind has already been established by action of the General Convention.  The job now is to establish universal acceptance of what TEC has done. I have simply set forth the methods that will be employed to achieve this end.

In short, TEC’s way of doing business is a prelude to making the Communion over in its own image.  My prayer is that the leaders of our Communion, particularly the Archbishop of Canterbury, the Primates and the leaders of the Global South will recognize what is going on and take the steps necessary to sustain Anglicanism as a communion of churches. If the warning is ignored, the Anglican Communion will become a federation held together only by a rapidly fading historical memory and unstable and (sometimes) conflicting commitments to good works. My hope and prayer is that this warning will be heeded. When it comes to TEC’s way of doing business, let the buyer beware!

The crises in the Anglican Communion in recent years have revealed two distinct problems confronting the Communion, one theological and one structural. The two halves of faith and order. The theological problem is whether the Communion has theological coherence on major questions of faith and practice. Slowly over the last decade and a half an affirmative answer to this question has been evolving. In particular, on the presenting crisis of human sexuality the Communion does have a common mind that has been expressed repeatedly by all four Instruments. The extent to which this has happened is reflected in the report of the Joint Standing Committee in late 2007 after the meeting of TEC’s House of Bishops in New Orleans:

The Communion seems to be converging around a position which says that while it is inappropriate to proceed to public Rites of Blessing of same-sex unions and to the consecration of bishops who are living in sexual relationships outside of Christian marriage, we need to take seriously our ministry to gay and lesbian people inside the Church and the ending of discrimination, persecution and violence against them. Here, The Episcopal Church and the Instruments of Communion speak with one voice.

TEC’s Presiding Bishop concurred in that report, but she has since served as the chief consecrator of Mary Glasspool and TEC’s General Convention has authorized the development of liturgies for public rites of blessing.

The extent to which the theological question has been answered is also reflected in the steps already taken by the Archbishop of Canterbury to begin removing TEC representatives from Communion bodies responsible for faith and order and the acknowledgement by the Secretary General that TEC does not “share the faith and order of the vast majority of the Anglican Communion.”

Also evolving, albeit more slowly and less certainly, are solutions to the structural problem: whether the Communion has the structural coherence to deal with these kinds of crises. A number of well known studies have addressed this issue, including the Virginia Report, the Windsor Report and the Report of the Windsor Continuation Group. But the Communion response has not been limited to the publication of reports. There have been two concrete responses to the structural problem and the recommendations in the various studies, and both have come to fruition in the past year. One is the Anglican Communion Covenant, now under consideration by the member churches. The Covenant was under development for several years in a largely transparent process. Three drafts were published and open to public debate and comment. Regardless of one’s position on the Covenant, there can be no question that its contents are known and have been scrutinized by all interested parties.

The second response to the structural problem is the constitutional reform of the Anglican Consultative Council. This response has also been under development for several years and is motivated both by purely legal issues and by the recognition of needed institutional reform, but unlike the Covenant the constitutional reform of the ACC has largely proceeded outside of public view. This feature has been compounded by the fact that many of the issues involve technical legal matters that have implications that are not readily apparent and, in some cases, were not even applicable until late in the process. This has made informed consideration by the member churches and Instruments difficult, if not impossible.

This process is now nearing completion. On July 12, 2010, a certificate of incorporation was issued for a new UK company, the Anglican Consultative Council. Accompanying the certificate were the Memorandum and Articles of Association of this new company. These documents were made public by the Registrar of Companies for England and Wales although they were not disclosed publicly by the Anglican Communion Office until July 24. With the registration of this new company with the UK Charity Commission, the transformation of the ACC is now complete. The ACC is now a company regulated under both UK Companies and Charities laws.

We will examine below the provisions of the ACC’s new constitution, its Articles of Association, and the implications these Articles have for the structural problems of the Communion. We will also consider the extent to which the new ACC constitution presents a future for the Communion compatible with that of the Covenant. In summary, our conclusions are as follows:

• By making the ACC an English company, the new constitution subjects the ACC, one of the Communion’s Instruments, fully to UK and applicable EU law, including equalities legislation that the Church of England itself has resisted.
• The new constitution reverses the historic relationship between the ACC and its Standing Committee, making the Standing Committee the primary legal entity and giving it greater authority than the Council as a whole.
• The new constitution infringes on the traditional authority of the Archbishop of Canterbury and the Primates’ Meeting, which are separate and independent Instruments of the Communion that do not derive their authority from the ACC constitution.
• The new constitution reduces the role of the member churches in the governance of the ACC.
• In these ways, the new constitution is inconsistent, both in vision and in detail, with the Covenant.

Because this document has been held outside of public view until very recently, we write without the benefit of comment from English lawyers. If correction on that account is in order, we expect it will be voiced. Many things, however, seem straightforward enough and it is important that the nature and extent of the changes brought about begin to be appreciated.

1. The ACC Is a Corporation Governed by UK and EU Law

The starting point in a review of the new constitution is to note that the ACC is now an English company, subject to UK and EU law like all other English companies. A certificate of incorporation has been issued in the name of “The Anglican Consultative Council” and the new Articles make clear that this new company is now governed by the Companies Act 2006. We will consider below to what extent the new legal entity is the same body as that traditionally understood as the ACC. For the present, however, it is important to recognize the significance of the fact that the ACC is now a corporation governed by UK and EU law.

The initial Lambeth Conference resolution calling for the establishment of the ACC and proposing its initial constitution (1968 Res. 69) did not specify any legal structure or entity for the ACC. It was just a body to be defined by its constitution. As such, the ACC was what is generally regarded as a voluntary association. Traditionally, such associations were not recognized by the law as legal entities distinct from their members. The essence of a corporation, on the other hand, is that it has a legal personality distinct from its members or shareholders and its legal rights and duties are determined not solely by agreement of its members but by the governing law.

At its second meeting in 1973, the ACC approved the establishment of a limited legal structure (a trust) under UK law, but its specific purpose was to hold property located in the UK and the resolution indicated clearly that the ACC itself and this trust were not identical, but distinct entities—the trust holds property “on behalf of” the Council. Resolution 2:33 (1973):

Legal Status

1. The Council approves that a Trust be set up in the United Kingdom the object of which shall be to advance the Christian religion in accordance with the terms of the Constitution of the Anglican Consultative Council which may hold on behalf of the Council all property and funds situated in the United Kingdom.
2. The Council delegates full responsibility to the Standing Committee to approve on its behalf the final form of the said Trust and to appoint the necessary Trustees.

In 1999, the ACC began the process of changing this status. Resolution 11:6 provided in part:

That the Standing Committee consider, and if it thinks fit, adopt an appropriate legal structure for the ongoing work of the council within the framework of a limited company in accordance with legal advice and any directions of the charity commissioners for England and Wales, but so far as possible in all other respects in accordance with the existing constitutional arrangements.

Although this resolution only called for “an appropriate legal structure” “within the framework of a limited company” and did not specify that the ACC itself would be incorporated, it was clear by ACC-13 in 2005 that the intent was for the ACC itself to become a charitable company governed by UK law. We are now at the endpoint of this process, and the Articles of Association forming that company are the new constitution of the ACC.

We do not question the underlying legal advice that the appropriate legal structure for the entity responsible for managing the Communion’s UK assets is a company limited by guarantee. We are not at all persuaded, however, that this legal entity should be one of the Communion Instruments itself and that the fiduciaries charged with overseeing these charitable activities should be the same as those comprising one of the bodies responsible for faith and order in the Communion. Whatever the complex legal issues may have been, the practical result for the Communion of this legal transformation of the ACC will be to return and consolidate legal and ecclesiastical power in London and to insure that no important decision can be made without consulting UK lawyers and complying with UK law.

The potential for resultant legal problems is obvious. Some charities affiliated with other churches, both in the UK and elsewhere, are either ceasing operations or converting to secular control—hardly an option for the ACC—to avoid regulations restrictive of religious freedom. And one can readily contemplate future mandates on UK companies designed to enforce UK policy objectives in other countries, including gay rights, e.g., embargoes on transactions with countries (most of the Communion) not complying with European equality regulations. It is incongruous that in the last year the bishops of the Church of England were voting in the House of Lords against proposed equalities legislation because it would restrict religious liberty even as steps were being taken to incorporate the ACC under UK law and possibly subject one of the Communion’s Instruments to that same legislation. Significantly, the new Articles contain no “ethos statement” or statement of required standards of conduct or faith for ACC officials, and Article 6.5.2 already refers to the possibility that Standing Committee members might have civil partners.

2. The ACC Is Now Defined Legally by Reference to the Standing Committee with the Full Council Playing a Secondary Role

Under the old ACC constitution, the powers of the Standing Committee were derivative of those of the Council itself. The Council consisted of its members, who were appointed directly by the member churches. The Standing Committee had the power to act for the Council between meetings of the full Council and to execute matters referred to it by the Council. The nature of the Standing Committee’s legal role as derivative of (and lesser than) the full council is shown by Article 8 of the former constitution:

The Standing Committee may exercise all powers of the Council as are not by this Constitution required to be done specifically by the Council, and in particular may borrow money and mortgage or charge the Council assets.

Under the former constitution, the members of the Standing Committee also served as trustees of the Council for charity law purposes.

The ACC’s new Articles of Association essentially reverse this relationship. It is the Standing Committee that has primary management authority and it is the full Council that has a lesser and secondary role.

By adopting the corporate form, the ACC has fundamentally altered the foundation of its governance. The principles of governance of an unincorporated association are those chosen by the members themselves. Indeed, as already noted, traditionally the law has not recognized such an association as having a legal personality apart from its members. Corporations, on the other hand, are created by the law and their governance is prescribed in the first instance by the corporate law. The ACC company was formed and got its legal personality only when a Certificate of Incorporation for company number 07311767 was issued by the Registrar of Companies for England and Wales.

Corporations are juridical persons, entities created by the law. As such, the corporate law defines in detail the fundamental governance of the corporate entity, including who the members are, how votes are to be taken, how meetings are called and who is responsible for the management of the company. Choices as to these matters are permitted, but are subject to the parameters established by company law. For English companies, the most recent corporate law is found in the Companies Act 2006, a 700 page statute that specifies the basic rules of company life. In general, English company law specifies that

• non-written resolutions can only be passed in “general meetings” of the members, including the familiar “annual general meetings” required of public companies and often held by private companies;
• who must be given notice of such meetings and how notice is to be given;
• what kind of majorities are required to pass “ordinary resolutions” and “special resolutions” and what constitutes each; and
• how members can designate others, “proxies,” to vote on their behalf.

These concepts are well known to corporate lawyers, but may be less familiar to ordinary Anglicans around the Communion. The ACC’s new Articles explicitly adopt the meanings of terms defined in the Companies Act 2006.

Applying these concepts to the ACC’s Articles, we see that the most important provision for understanding the ACC’s new structure is Article 7.5:

The Trustee-Members shall constitute the membership body of the Council for the purposes of the Companies Acts and as Charity trustees they shall have responsibility for management of the Council’s property and funds.

Thus, the legal membership of the company consists of the Trustee-Members. And they are defined in the definitions of Article 1 as follows:

Trustee-Members means the individual members for the time being of the Standing Committee of the Council (and “Trustee-Member” or “Trustee-Members” has a corresponding meaning), the Trustee-Members being also the members of the company for the purposes of the Companies Acts….

Put simply, the membership body for legal purposes is the Standing Committee, not the full Council. This is reflected throughout the new articles in other more technical provisions. For example, Articles 12, 13 and 16 make clear that it is the meeting of the Standing Committee that constitutes the “general meeting” and “annual general meeting” of all members specified in the Companies Acts as the meetings at which the company can pass resolutions. And Article 3.1 specifies that it is the Standing Committee members whose personal liability is limited. If the company had other members, their liability would be unlimited since they are not included in the limitation in this article.

This constitutes a significant change in structure from that of the former constitution. Under the old constitution, the members of the ACC were the persons directly elected by the member churches. And the former constitution provided for “meetings of the Council” at intervals of every two or three years, and “meetings of the Council” meant meetings of the members elected by the member churches. What is the role of these “members” under the new corporate structure?

In the new Articles, the persons elected by the member churches are still identified as “Members” but this is largely definitional and of limited effect since the Articles also specify that for legal purposes–that is, for purposes of the Companies Act under which the Council is now organized–the members of the Council are now the members of the Standing Committee. And the meetings of the full Council are designated under the new Articles as “Plenary Sessions of the Council” and are said to be “in addition to” the general meetings and annual general meetings of the Standing Committee, the latter being the meetings of members recognized under the new Companies Act structure. The Plenary Session is in fact an extra-corporate body whose primary legal role is the exercise of a right, provided for in the Articles but not mandated by company law, to elect the members and trustees of the company—the Standing Committee—and to advise the company on certain, but not all, matters that the Standing Committee has the legal authority to do.

Does any of this matter in practice or is it mere legal formality? In fact, it has real practical consequences. One important feature is the relative scope of the authority of the Standing Committee and Plenary Session. As already noted, in the past the authority of the Standing Committee was derivative of, but less than, that of the full Council. The Standing Committee could do much of what the full Council could do, but nothing more, except to the extent they were acting solely in their capacities as trustees of a charity. But under the new Articles, the Plenary Sessions have a separate limit on their authority that is not applicable to the Standing Committee. The “Objects” or purposes of the ACC have been revised in the new Articles to include three objects: to advance the Christian religion; to promote the unity of the Anglican Communion; and to promote the purposes of the Anglican Communion. The Standing Committee, as the legal company, is authorized by law to pursue all of these objects. But the authority of the Plenary Sessions is limited to the contractual rights granted to them in the Articles. And under Article 16.1 they can only meet “to promote the unity of the Anglican Communion” and can only consider other matters “in that context.” The Standing Committee has no such restriction on its authority, i.e., it need not consider matters only in the “context” of unity.

Given the controversies in the Communion and the provisions of Section 4 of the Covenant this becomes a real, not a theoretical, issue. Can the recognition of “relational consequences” that diminishes the role of a member church in some way be considered by the Plenary Session as a matter promoting the unity of the Communion? Or is this something that can only be done by the Standing Committee?

Another important issue that has been the subject of recent controversy is the manner in which amendment of the ACC’s constitution is accomplished, and in particular amendment of the constitutional schedule specifying its membership. The Articles treat amendments to the main body differently from amendments to the membership schedule, but each case requires action by a body other than the Standing Committee. In the case of amendments other than to the membership schedule, Article 27.3 provides for a vote of two-thirds of the plenary members. In the case of the membership schedule, amendment is by the Standing Committee with the consent of two-thirds of the Primates. But the Companies Act mandates that amendment of the articles must be accomplished by a vote of 75% of the full membership of the company, i.e., the Standing Committee. As we understand it, the Companies Act thus imposes an additional requirement to amend the Articles that in effect gives any four members of the Standing Committee a veto over the proposed amendment. In other words, the full Council could vote overwhelmingly to amend the Articles, but the decision could be blocked by a minority faction on the Standing Committee. And this possibility is not merely hypothetical. We know there have been allied blocks on the Standing Committee, we have seen them in action in Jamaica, and ACC officials have publicly bemoaned recent Standing Committee meetings to the point of resignation and extreme frustration (the “worst meeting of my life”).

As noted above, the Plenary Session is not part of the legal membership of the ACC. The plenary members therefore possess no statutory rights as members of the incorporated body, but only those rights granted in the Articles. These rights are contractual in nature; unlike the Standing Committee, the plenary members have no inherent legal authority to manage the ACC. It is important therefore to recognize the extent to which the new Articles restrict the authority of the plenary members even over the Plenary Sessions themselves and transfer significant control over these Plenary Sessions to the Standing Committee. New Article 16.5 now gives the Standing Committee the power to adopt rules governing the conduct of business at the Plenary Sessions. And it is not even clear whether the Plenary Session itself could change such rules even with an overwhelming majority vote and the consent of the ACC President, the Archbishop of Canterbury. The wording of Article 27.2 suggests not. Under the old rules, the Standing Committee had no such role in adopting procedures for meetings other than its own. (Old bylaws 1(c) and 2(b).)

Similarly, Article 8.2.3 now gives the Standing Committee the ability to give directions for the conduct of elections for Standing Committee membership, as well as elections for Chairperson and Vice-chairperson, and Article 27 gives it general authority to adopt rules and guidelines broader than its previous authority, which was limited to the Standing Committee’s own proceedings. (Compare Article 27.1 with old bylaw 2(b).)

Not only are the Plenary Sessions downgraded in importance relative to the old structure and subject to significant control by the Standing Committee, the Standing Committee is given additional ability to influence the proceedings through exercise of the right to appoint up to six members in addition to those elected by the member churches. Under the old constitution, authority to appoint these additional members (previously called co-opted members) was given to the Council itself.

And in addition to exercising all the membership rights, the Standing Committee members, as “Trustees,” also exercise the rights of directors of the company under the Companies Act. As a matter of law, directors have the primary management responsibility for the company.

In short, the reversal in the legal structure making the Standing Committee primary and the full Council secondary is also reflected in specific rules that give the Standing Committee significant control over the Plenary Session—what was formerly thought of as the ACC.

3. The New Articles Infringe on the Prerogatives and Traditional Authority of Other Instruments.

To this point we have looked at the ACC’s new constitutional structure only from the perspective of the ACC itself. The changes in the nature and governance of the ACC are significant and obvious. But the new Articles also take the first steps toward asserting legal control over the other Instruments thereby radically changing the traditional understanding of those Instruments as independent bodies or offices.

The starting point is the definitions section in Article 2, which appears to be an attempt to define and thereby control the membership of the Primates’ Meeting by reference to the ACC’s membership schedule rather than the Primates’ Meeting’s own self-definition:

“Primates” means the principal Archbishop, Bishop, Moderator or Primate of each of the bodies listed under paragraphs 1, 2 and 3 of the Schedule appended to these Articles.

“Primates’ Meeting” means the gathering of the Primates convened time to time by the Archbishop of Canterbury.

This is an important, if technical, point. The former ACC constitution contained a definition of “Primates” identical in substance to this definition but with a qualification that the definition was “for the purposes of this Article,” which was the article on determining ACC membership. But this definition now applies not just when changing the ACC’s own membership but to “these Articles,” and as we will see next, the new Articles purport to regulate, at least in part, some decisions of the Primates’ Meeting.

This attempt to define the Primates is now broadened because the new Articles also purport to define the Primates’ Meeting itself. This definition partly mirrors that used in the Covenant, reflecting the traditional understanding (that the Primates’ Meeting is “convened by” the Archbishop of Canterbury), but there is an important difference. Under the new Articles, the Primates’ Meeting is the “gathering of the Primates” and “Primates” as we have just seen is a defined term that is defined by reference not to the Primates themselves or the Archbishop of Canterbury, but to the ACC membership schedule, which is controlled by the Standing Committee.

Following the traditional practice, the Covenant specifies that it is the Archbishop who “gathers” the “Primates’ Meeting” and there is no qualification on his discretion as to which Primates to gather—no reference to the ACC membership or any other list. Indeed, in the past the Archbishop has not in fact used the ACC list as the basis for gathering the Primates. For example, he has invited the Archbishop of York notwithstanding the fact that he would not be included among those defined by the ACC list. In addition, the Archbishop has not invited the senior bishop from Ceylon despite the fact that the extra-provincial Church of Ceylon was listed on the ACC schedule. And in 2007, the Archbishop made clear that invitations were within his discretion when he announced that “I have decided not to withhold an invitation to Bishop Katharine Jefferts Schori as the elected Primate of the Episcopal Church to attend the forthcoming meeting. I believe it is important that she be given a chance both to hear and to speak and to discuss face to face the problems we are confronting together.”

By attempting to define the Primates’ Meeting as those on the ACC schedule as opposed to those whom the Archbishop of Canterbury chooses to gather, the ACC is encroaching on matters within the domain of two other Instruments.

But the ACC Articles go further. They purport to regulate and control decisions the Primates make about their own leadership. Article 8.2.1 provides:

In electing the Chairman, Vice Chairman and other Trustee-Members [Standing Committee members] the Members and the Primates (as the case may be) shall have regard (particularly in the process of nomination) to the desirability of achieving (so far as practicable) appropriate regional diversity and a balance of representation between clergy and laity and between the genders. (Emphasis added.)

What this article purports to do is impose diversity criteria on the Primates’ election of members to their own standing committee since those members become “Trustee-Members.” Whether these criteria are laudatory is not the issue. It is for the Primates to decide on the qualifications they will consider in electing their standing committee. For example, although they have not yet chosen to do so the Primates might wish to adopt selection criteria that focus on proportional representation or theological coherence with the Communion’s faith and order rather than regional or gender diversity. We hope the Primates will robustly resist these initial efforts to control their decision making.

The new articles further encroach on the historical prerogative of the Archbishop of Canterbury to appoint members of the Communion’s commissions and similar bodies. New Article 5.5 gives the ACC (the Standing Committee) the authority to establish Communion commissions. We have already seen this developing in recent years without any legal authority, but this now formalizes that practice. Will the Standing Committee next claim that the Archbishop cannot appoint such commissions without its consent? It does not bode well that the Standing Committee recently interrogated the Archbishop on decisions taken concerning some of these commissions and the explanation given was that he had conferred with the Secretary General, who possesses no authority in these matters.

As a final example of the ACC’s encroachment on other Instruments under these Articles, we note that the procedures for determining the membership of the Inter-Anglican Finance Committee have been changed to place sole appointing authority in the Standing Committee. Former bylaw 4 provided that the committee would consist of at least five members, of which at least two would be appointed by the Primates’ Meeting and at least three would be appointed by the Council. Now the Standing Committee, not the full Council, is the appointing body for all members, with both the Primatial and non-Primatial members of the finance committee appointed separately from among the members of the Standing Committee. (Articles 14.1 -14.2.) The “at least” language on the number of members is dropped, fixing the size of the committee and ensuring that there will be a majority of non-Primatial members.

In each instance just described, the changes made were small and in some cases technical. But they reflect an assumption that the other Instruments can be governed in some way by the ACC’s Articles and may be claimed as a precedent for that in the future. Given the Standing Committee’s control over these Articles, this is a dangerous precedent for the Communion and its Instruments as traditionally understood.

4. The New Articles Reduce the Influence of the Member Churches on the ACC.

In many ways the reduced influence of the member churches follows from the facts we have already noted. The members elected by the member churches are no longer the legally recognized members of the ACC. But there is one other way in which the influence of the member churches has been reduced. The former requirement that amendments to the constitution be ratified by two-thirds of the member churches has been removed. Amendments now require only a two-thirds vote of one Plenary Session and, under the Companies Act, a 75% vote of the Standing Committee.

It is ironic that one of the legal arguments TEC has made in litigation it instituted against its former dioceses is that its General Convention possesses legal supremacy because it can amend TEC’s constitution. But TEC’s constitution requires that amendments be approved at two successive meetings of the General Convention and that formal notice of the proposed amendment be transmitted to the diocesan conventions between the two votes. And when the vote is taken at the General Convention, it is cast in the House of Deputies by dioceses that have equal representation and vote as a unit in both the clergy and lay orders with each diocese having one vote in each order. This is considered a vote by dioceses by TEC’s own constitutional commentary.

Under the new ACC Articles, however, amendments do not require two readings, are not sent formally to the provincial synods and are not voted on at the Plenary Sessions by member churches as a unit with each church having one vote. They are voted on in one session by the individual members, including the members appointed by the Standing Committee, which gives disproportionate representation to the western churches. This reduces further the input of the member churches in the functioning of the ACC.

5. The Structure of the Communion Reflected in the New ACC Articles Is Not What Was Contemplated In the Covenant.

We have identified above the distinctive features of the transformed ACC. We now must ask to what extent this ACC response to the Communion’s structural problems is compatible with that found in the Covenant finalized only seven months ago?

To start it is helpful to revisit the fundamental principles of our Anglican identity as expressed in Section 3 of the Covenant:

First:

Churches of the Anglican Communion are bound together “not by a central legislative and executive authority, but by mutual loyalty sustained through the common counsel of the bishops in conference” and of the other instruments of Communion. (3.1.2.)

Second:

[Each Church affirms] the central role of bishops as guardians and teachers of faith, as leaders in mission, and as a visible sign of unity, representing the universal Church to the local, and the local Church to the universal and the local Churches to one another. This ministry is exercised personally, collegially and within and for the eucharistic community. (3.1.3.)

Third:

In addition to the many and varied links which sustain our life together, we acknowledge four particular Instruments at the level of the Anglican Communion which express this co-operative service in the life of communion….It is the responsibility of each Instrument to consult with, respond to, and support each other Instrument and the Churches of the Communion. Each Instrument may initiate and commend a process of discernment and a direction for the Communion and its Churches. (3.1.4.)

These principles can be summarized as recognizing that the Anglican Communion (1) is not tied to a single “central authority”; (2) is one in which its bishops play “the central role” in essential areas of leadership; and (3) is led by four distinct Instruments of Communion, each of which “may initiate and commend a process of discernment and a direction for the Communion and its Churches.”

None of this is novel. As the Covenant itself notes in the Introduction:

To covenant together is not intended to change the character of this Anglican expression of Christian faith. Rather, we recognise the importance of renewing in a solemn way our commitment to one another, and to the common understanding of faith and order we have received, so that the bonds of affection which hold us together may be re-affirmed and intensified.

It must be emphasized that the “we” of the Covenant are the member churches of the Anglican Communion that sign the Covenant together with the other churches who may join them in that agreement. The Covenant is their commitment to each other and the historic Instruments of Communion they recognize in their re-affirmation of their common faith and order. The Instruments derive their authority in the Communion not from their own internal legal processes, but from the recognition they receive from the Communion’s churches.

The Covenant thus becomes the foundational document for the Communion. It does not derive its authority from any of the Instruments. Rather the reverse.

One can see at a glance that the new ACC Articles present quite a different vision at key points. They unquestionably establish a “central executive authority.” Indeed, in its recently posted Q&A this is explicit:

The Standing Committee is the executive arm of the Anglican Consultative Council, charged with advancing its work between its three-yearly plenary meetings. It also incorporates the Standing Committee of the Primates’ Meeting, and has responsibility to oversee the implementation of requests from the Lambeth Conference. So, for example, it takes responsibility for organising meetings of the Instruments, and co-ordinates the work of the various Networks and Commissions which serve the Communion in a wide variety of ways. The work on Theological Education came from an initiative of the Primates’ Meeting; the Relief and Development Alliance was a proposal from the Lambeth Conference of 2008.

The ACC Articles, moreover, do not sufficiently acknowledge the central role of bishops and the bishops in conference. The Lambeth Conference of bishops appoints none of the members of the Standing Committee, and it is the ACC that elects the majority of the Committee members. Although the ACC can and does elect bishops from among its members and bishops will always comprise a large part of the Standing Committee, there is no formal recognition of a “central role” for bishops and the stated criteria for appointing Committee members include “a balance of representation between clergy and laity.” In the larger, if now less important, Plenary Session, there is no vote by orders, which would guarantee a special role for bishops, and the membership criteria encourage lay, not episcopal participation.

And as noted, the ACC Articles assert the legal authority to define and regulate in some respects the other Instruments of Communion. The Covenant’s oft-expressed vision is of a Communion in which each Instrument is distinct, co-equal and responsible for its own membership decisions. A possible trajectory of the new ACC Articles, if now only in its earliest stages, is that of a Communion in which all the Instruments are governed by a single legal constitution subject to UK law.

Indeed, a threshold question is whether the new ACC Articles and the Anglican Covenant are even talking about the same Instruments. The Covenant defines the ACC with reference to its former constitution and specifically refers to the membership schedule, indicating it considered the Council to be the body comprised of the members elected by the member churches, not the smaller body comprising the Standing Committee. This accords with the original Lambeth Conference resolution that specified the first constitution of the ACC. It also defined the Council by reference to the members elected by the member churches and said of the Standing Committee only that:

The Council shall appoint a Standing Committee of nine members, which shall include the Chairman and Vice-Chairman of the Council. The Secretary General shall be its Secretary. The Standing Committee shall meet annually. It shall have the right to call advisers.

Is this even the same body as the new English company whose members and directors consist of the Standing Committee only and not those elected directly by the member churches?

Similar questions arise with respect to the committee defined in Section 4 “to monitor the functioning of the Covenant…on behalf of the Instruments.” Among other duties, this committee must be “responsible to the Anglican Consultative Council and the Primates’ Meeting” and “make recommendations as to relational consequences” to “the Instruments of Communion.” The Covenant identified that committee as the “Standing Committee of the Anglican Communion.” In its public materials, the ACC Standing Committee identifies itself correctly as “The Anglican Consultative Council-Standing Committee.” This accords with its legal definition. By its own account, last December it “adopted” the title used in the Covenant of “Standing Committee of the Anglican Communion” but has since thought better of that idea and decided to stick with “ ‘the Standing Committee,’ as per the new ACC Articles of Association.”

Whatever else can be said of this confusion, one thing is clear: when the Covenant defined a committee to monitor “on behalf of the Instruments,” to “be responsible to” the ACC and the Primates’ Meeting, and to “make recommendations” to the Instruments, it did not contemplate that this role would be filled by a group that constitutes the entire membership and governing body for legal purposes of one of those same Instruments.

6. Conclusion

In light of these developments, we draw the following conclusions:

• It is not appropriate for one of the Communion’s four Instruments to be an English company regulated by UK and EU law like any other UK company. To repeat what we said above, we do not question the need for the proper and efficient management of the Communion’s charitable assets by fiduciaries complying with all relevant laws. We are not convinced, however, that this role should be confused with the historic role of the Instruments of Communion in “the discernment, articulation and exercise of our shared faith and common life and mission” and in particular with the role of the Communion’s Primatial leadership, which bears special responsibility for “doctrinal, moral and pastoral matters that have Communion-wide implications.” (Covenant 3.1.4.)
• We urge the Archbishop of Canterbury and the Primates not to cede their independent authority to the corporate charter of the ACC, but to insist that their authority cannot be infringed by the ACC.
• It is now beyond doubt that the newly transformed and empowered ACC Standing Committee cannot function as the committee required by Section 4 of the Covenant.
• The Covenant remains the only hope for preserving the traditional faith and order of the Anglican Communion. We call upon member churches of the Anglican Communion to adopt the Covenant with all deliberate speed and, having done so, to make proper arrangements for the responsibilities assigned to the Standing Committee of the Anglican Communion in Section 4 to be undertaken by a body that has both the competence and ability to assess threats to the Communion and recommend appropriate action.

We have written often about the Anglican Consultative Council and its Standing Committee over the last year. After the chaotic session in Jamaica in May 2009 we noted that the ACC had not followed its own rules in conducting the crucial vote on the Covenant with the result that the vote to defer Section 4 probably did not effectively pass the Council. And we also noted that in the confusion in Jamaica, it is doubtful that the members sufficiently understood what they were actually voting on to make that vote even morally authoritative. ACC officials suggested that a move away from western parliamentary procedures placed great weight on decisions of the chairman, who could discern the sense of the meeting, but in fact the chairman was actually corrected twice during the crucial vote—once when he ruled the controversial “Trisk amendment” out of order and then later when he ruled that a second vote was required to pass the resolution as amended. This confusion was televised over Anglican TV (and later transcribed) so the debacle is preserved for all to see. From that moment on many Communion members lost all confidence in the ACC as a viable and representative Instrument of Communion.

In the year since the ACC meeting in Jamaica, it has become increasingly clear that the problems so evident there were not isolated events but are endemic to the operations of the Council and its Standing Committee. We have written about this repeatedly in recent months, including publicly here, here, here and here. The most recent news concerning resignations from and dubious appointments to the Standing Committee, released nearly simultaneously by the ACNS and TEC’s Episcopal News Service, once again present these issues in acute form.

1. Transparency

In his December 18, 2009 letter formally transmitting the Anglican Covenant to the member churches of the Communion, the Secretary General referred to a document then publicly unknown to explain key procedures for determining membership in the ACC. This document has since come to be called the “new” or in some cases, “secret,” constitution. We noted this in our essay posted a few days later on December 22:

Thus, there apparently is a new ACC constitution (now referred to as Articles of Association) that changes the membership procedures for the ACC.  This new constitution (which has not been made public) also applies in some way to the adoption of the Covenant by other churches.

When the Secretary General was subsequently queried by TEC progressives about this, he explained the background to the reorganization of the ACC, amended his letter to the member churches after the fact to refer to both the “new” and the existing constitutions and stated that as of January 6, 2010, the ACC was still awaiting approval by the UK legal authorities to implement the new constitution. All of this is helpful information, but it was disclosed in private correspondence to TEC bloggers, not posted on the Communion website.

The new constitution still has not been made public; the constitution posted to this day on the Communion website is the “old” one. Nor is this an administrative oversight. As recently as April of this year, the old constitution was publicly posted with erroneous membership provisions, then removed for several days altogether and finally replaced with a corrected version of the “old” constitution. And as recently as last month, those inquiring of the ACO were told based on legal advice that the “old” constitution was “the existing” one, but that the “new” constitution was “similar.”

And  now on the eve of another Standing Committee meeting we are informed (by ACNS and ENS) of resignations that have not been previously announced by those involved and controversial appointments that were made at the last meeting over six months ago. We will turn to the substance of these announcements next, but this lack of transparency has itself become a contributing factor to the crisis in the Communion, a crisis so acute that even the Archbishop of Canterbury acknowledges that maintaining “outward unity at a formal level” is no longer a “good thing” and the Secretary General states that key discussions are “at a point of collapse.”

2. Failure to Follow the Rules

The point is often made by those who would promote the ACC as the paramount body of the Communion that it is the only body with a written constitution. Indeed, the Archbishop of Canterbury himself called attention to this constitution in his Pentecost letter when he noted that membership on both the ACC and its Standing Committee is governed by the ACC constitution. But if these bodies are governed by formal rules, it is imperative that those rules be followed. And it is becoming ever more evident that not only are the rules ignored, they are applied unevenly to benefit some provinces and disadvantage others.

As already noted, we and others have written repeatedly about the numerous constitution and bylaw provisions being flouted by TEC in an effort to keep Bishop Ian Douglas on the Standing Committee. We will not repeat those points here, but only note that during the recent Executive Council meeting, the President of TEC’s House of Deputies and Vice Chair of the Executive Council described both TEC’s clerical and episcopal seats on the ACC as “open” and noted that there were contested elections for both seats. The implications of these facts under the ACC constitution and bylaws are straightforward: (i) when the clerical seat formerly held by Douglas became “open” he automatically ceased to be a member of the Standing Committee under Article 2(f) of the ACC bylaws; and (ii) under Clause 4(c) of the ACC constitution, Douglas cannot re-join the ACC itself for six years.

Similar issues arise with the Standing Committee’s attempt to appoint the Rev. Janet Trisk of Southern Africa to replace a lay representative on the Standing Committee. The ACC constitution provides that the ACC members of the Standing Committee are to be appointed by “the Council.” Article 7 of the bylaws supplements this constitutional article by providing that in the case of vacancies between meetings “the Standing Committee itself shall have power to appoint a member of the Council of the same order as the representative who filled the vacant place.” If, as seems reasonable, the bylaw is a lawful supplement to the constitution and is not itself unlawful, the Standing Committee is clearly authorized only to appoint someone of the same order. It is not given any power to go beyond not only the constitution but even the additional authority granted in the bylaws by appointing someone such as Trisk who is not of the same order as the previous member. The attempt to appoint Trisk, therefore, was ultra vires and ineffective. And, lest anyone claim the Trisk appointment is valid under the “new” unpublished constitution, it should be emphasized that it was done last December when the old constitution was unquestionably still in effect.

It cannot escape notice, moreover, that Trisk was the proponent of the controversial amendment at ACC-14 in Jamaica that effectively stripped Section 4 out of the Covenant to be revised. If permitted to serve on the Standing Committee, she would join several others, including Bishops Katharine Jefferts Schori, Ian Douglas and Phillip Aspinall and Dr. Anthony Fitchett who have criticized the Covenant or who sought to block or delay its adoption. Yet this is the very body that has taken on the primary role in administering that same Covenant.

And the announcement that two Primates from Africa have resigned and that the Primate of Bangladesh has become a “member” raise more questions than they answer. As to Bishop Mouneer’s replacement, Bishop Paul Sarker, the ACC constitution requires that the ex officio Primatial members also be members of “the body known as the Standing Committee of the Primates of the Anglican Communion in each case for so long as they shall remain members of such Standing Committee.” In his letter of resignation, Bishop Mouneer stated that “I hereby submit my resignation from the Standing Committee of the Anglican Communion….I would like to assure you that my resignation from the SCAC will not stop my commitment to the Primates’ Meeting….” There has been no public announcement that Bishop Mouneer has ever resigned from the Primates’ Standing Committee (as opposed to the ACC and its Standing Committee).  We do not know whether he has or not, but if he has not, on what basis can Bishop Sarker be made a “member” of the ACC or its Standing Committee?  The ACC constitution defines “alternate member” as someone “invited to attend a meeting if the ordinary member is unable to be present for a whole session of the Council.” Is Bishop Sarker a member or alternate member of “the body known as the Standing Committee of the Primates”? If merely the latter, how can he become a member of the ACC or its Standing Committee?

The same questions arise with respect to Archbishop Akrofi. Was he ever a member (as opposed to an alternate) of the Primates’ Standing Committee and thereby a member of the ACC and its Standing Committee? If not, how can he resign?

Finally, until this point, Archbishop Orombi has insisted publicly that he has not resigned from the ACC’s Standing Committee even though he has refused for reasons of principle to attend meetings. Has he changed his position? We do not know. But given his previous public position the question may arise whether a provision in the “new” constitution (not contained in the existing constitution) that permits a trustee director to be removed for failure to attend two meetings has been applied prematurely to remove Archbishop Orombi without his consent? It is at points like these that questions of the proper application of the rules and questions of transparency become so blurred as to be inseparable.

3. Application of the Moratoria

In his Pentecost letter, the Archbishop of Canterbury recognized that Communion churches that do not share the faith and order of the Communion as a whole cannot represent the Communion on bodies responsible for faith and order. The internal bodies with this responsibility include the Standing Commission on Unity, Faith and Order, but the Archbishop stated explicitly that there are other internal bodies implicated as well, and indirectly identifies the ACC, its Standing Committee and the Primates’ Meeting as among them.  The Secretary General recently reiterated this conclusion in remarks reported in the recent communiqué of TEC’s Executive Council, which noted:

Canon Kearon’s statement that The Episcopal Church does not “share the faith and order of the vast majority of the Anglican Communion.” He also responded to concerns about incursions by other provinces of the Communion. He acknowledged that the Archbishop of Canterbury considers certain activities of the Province of the Southern Cone to constitute an incursion, but is awaiting clarification about the extent of these activities from the primate of that province. However, such ongoing breaches of the moratorium on incursions do not rise to the same level of departure from the faith and order of the Communion as does the full inclusion of lesbian, gay, bisexual and transgendered Christians.

The ACC’s Standing Committee had already addressed these very issues in May 2009 on the eve of the Council meeting in Jamaica when it considered who was “qualified” to serve as an ACC member. At the last minute the Standing Committee, reportedly at the request of TEC, reversed the prior determination of the Secretary General and ruled that Uganda’s alternate clerical member was not qualified to serve as an ACC member. The Secretary General explained the decision as follows:

The Joint Standing Committee has discussed this at length. We understand that the Revd Philip Ashey’s relationship with the Church of the Province of Uganda is as a result of a cross provincial intervention, and note that such interventions are contrary to the Windsor Report and other reports accepted by successive meetings of the Instruments of Communion, including Primates’ Meetings which you have attended. Therefore we regret to inform you that Mr Ashey’s current status means that we cannot regard him as a ‘qualified’ member according to Section 4(e) of the current Constitution.

TEC acknowledges that the leadership of the Communion does not regard the matter at issue in the Ashey precedent as rising “to the same level of departure from the faith and order of the Communion” as TEC’s own repudiation of the Communion’s moratoria. Yet TEC still claims the right to have its representatives seated, not as one-time alternates or even as ordinary ACC members, but as members of the ACC’s Standing Committee. And the two representatives concerned, the Presiding Bishop and Bishop Douglas, are personally and directly responsible for TEC’s departures from Communion faith and order: the Presiding Bishop as chief consecrator of Mary Glasspool and Douglas as one who permits in his diocese public blessings of same sex unions and marriages. It should be noted that under the Connecticut policy, blessings are available to all parishes in the diocese and thus its policy is even broader than the policy in New Westminster in Canada about which the Windsor Report concluded:

We believe that to proceed unilaterally with the authorisation of public Rites of Blessing for same sex unions at this time goes against the formally expressed opinions of the Instruments of Unity and therefore constitutes action in breach of the legitimate application of the Christian faith as the churches of the Anglican Communion have received it, and of bonds of affection in the life of the Communion, especially the principle of interdependence.

4. Unrepresentative Nature of the ACC and Its Standing Committee

The problems addressed to this point are only exacerbated by the unrepresentative nature of the ACC and its Standing Committee. This problem is structural and pervasive; it is not a function of the vagaries of the last elections or recent resignations, although they do not help the problem to be sure.

The structural problem starts with the constitutional membership schedule of the ACC. Several western and European churches, including TEC, Canada and Australia are guaranteed three members, while large African churches such as Kenya, Sudan, West Africa and Burundi get only one or two. Indeed, TEC (with weekly attendance of approximately 750,000), Canada (with 325,000) and Australia (fewer than 180,000) probably do not equal the size of the church in Kenya even when combined, yet each of these western churches has three ACC members while Kenya has only two. Wales, with 50,000 weekly churchgoers, has the same ACC representation as Kenya and Sudan (with millions of members each), and twice as many as Burundi and West Africa, which dwarf Wales in size.

The ACC is the body that elects the majority of members to the Standing Committee, in part through a method of cumulative voting (single transferrable votes) that permits the concentration of voting power to benefit a small number of candidates. These ACC procedures are reinforced by the practice of the Primates to elect their five members by a regional voting scheme that allocates three of the five seats to regions having only 20% of the Communion’s active membership and limits the largest region, Africa, with over half the Communion’s active members, to one seat.

The cumulative effect of these provisions is demonstrated by the list of the thirteen members scheduled to attend the next meeting of the Standing Committee. Three are from the UK, two from the US, and two more from Australia and New Zealand. The other six members, fewer than half of the total, are spread among the churches of the Global South, which comprises approximately eighty percent of the Communion.

5. Can This Standing Committee Function as the “Standing Committee of the Anglican Communion”?

It is beyond doubt at this point that this Standing Committee as currently constituted does not enjoy the confidence of a majority of the Communion. There have been five resignations in less than a year. One of those resigning, Bishop Mouneer, called on the entire committee to resign. Archbishop Orombi has also stated publicly his lack of confidence in the committee as currently composed. Archbishop Ian Ernest, Chairman of CAPA and one who has long supported the Communion’s Instruments, who attended the Lambeth conference and who was part of the Conference design team, has stated that he will no longer attend Primates’ Meetings if TEC’s Primate is present.  And the Singapore communiqué of twenty Global South provinces explicitly upheld the positions of Archbishops Mouneer, Orombi and Ernest and called for the Standing Committee’s responsibilities for Covenant oversight to be transferred to the Primates. It is difficult to conceive of a more categorical rejection of this Standing Committee by a majority of the Communion.

The problems with the ACC’s Standing Committee go well beyond the current controversies, however, and are themselves structural in nature. As the Archbishop of Canterbury himself has acknowledged in his Pentecost letter, the Standing Committee is “governed” by the provisions of the ACC constitution. All of its members, including the Primatial members, are members of the ACC and their duties on the Standing Committee are determined by the ACC governing instruments. Indeed, one of the Standing Committee’s primary fiduciary responsibilities under UK law is the administration of charitable assets held by the ACC, soon to be a UK company. The ACC-elected members on the Standing Committee have no responsibility to the Primates’ Meeting comparable to the fiduciary duties owed by the Primatial members to the ACC.

And even if we ignore this structural problem, it is difficult to see how this committee could function as the standing committee of the entire communion when the majority of its members (9 of 15) are elected by the ACC, a minority (5) are elected by the Primates and not a single one is elected by the oldest and most important of the conciliar Instruments, the Lambeth Conference of bishops. Still further issues arise when we note that this committee like the ACC as a whole is being increasingly subjected to UK law even as the bishops in the Church of England are raising alarms over the threat to religious liberty posed by UK and European laws and regulations.

Our colleague, Ephraim Radner, has stated that it was never understood by the Covenant Design Group that such a committee totally governed by the ACC would have primary responsibility for administering the Covenant. Nor has it been approved by the Communion’s conciliar Instruments. Although the deliberations at the Primates’ Meetings are not public, Archbishop Orombi has stated:

There is, however, no “Standing Committee of the Anglican Communion.” The Standing Committee has never been approved in its present form by the Primates Meeting or the Lambeth Conference.

It is in fact questionable whether the ACC’s Standing Committee’s role as “Standing Committee of the Anglican Communion,” with the greater responsibilities that title implies, has been approved even by the ACC, which did not use that name for its Standing Committee when it amended its constitution in Jamaica.

All this leaves the current committee ill-defined and ill-equipped legally to perform the new duties arising under the covenanted Communion, especially in the face of widespread loss of confidence in both its membership and its commitment to observe legal requirements. In fact a legal challenge has already arisen from within the Standing Committee itself. One of its members, Anthony Fitchett of New Zealand, has requested legal advice on the “appropriateness” of one section of the Covenant based on possible conflict with the ACC constitution. Dr. Fitchett makes no effort to disguise his own distaste for the Covenant:

Section 4.2, on the other hand, contains provisions that are punitive, controlling, and completely un-Anglican, and reflect the movement towards centralized, Curia-like control that was rejected by the Lambeth conference…over a century ago….

Regardless of Dr. Fitchett’s personal opinions of the Covenant, his question serves only to highlight the dubious nature of the assumption that the ACC Standing Committee is the appropriate committee to administer the Covenant. For as we have pointed out, if the legal advice is indeed that the Covenant provision is not appropriate under the ACC constitution, this would not affect the Covenant, which is a separate legal instrument not subordinate to the ACC constitution, but would instead prove beyond doubt that the current Standing Committee is legally disqualified from acting as the Covenant requires.

6. Conclusion

A year ago, after analyzing carefully the chaotic vote on the Trisk amendment in Jamaica, we expressed the “hope that this will further demonstrate to the Communion the corrosive effect the current conflict and the efforts of those who seek to defeat or disable the Covenant are having in the Communion.” We have to conclude, however, that in the past year this hope has not been realized and the corrosion has only spread. Many of the primary players at Jamaica are now on the Standing Committee itself and they freely denounce and try to subvert the very Covenant they are to administer. TEC’s Presiding Bishop, like Dr. Fitchett calls the Covenant “un-Anglican,” challenges the Archbishop of Canterbury’s understanding of Pentecost and dismisses canonical requirements of the Church of England as “nonsense.” In reply, a Lambeth Palace official noted pointedly that one of the statements made by the Presiding Bishop was not true. The Secretary General notes that TEC does not “share the faith and order of the vast majority of the Anglican Communion” and that some Communion discussions are “at the point of collapse.”  The Secretary General interrupted his vacation to meet with TEC’s Executive Council at its request only to be treated rudely while he was there and ridiculed after he left. Five resignations have been reported by the ACC Standing Committee in the last six months, and the Secretary General described its last meeting as the “worst meeting” of his life.

The Communion can hardly tolerate another year like the last one. It is essential that the Communion have structures that work in the midst of ongoing crises in several churches of the Communion. The corrosive effect we spoke of a year ago must now be addressed as a matter of urgency. Five things are needed:

• ACC processes must be transparent; if the Communion churches are to give proper consideration to the Covenant, they must know what the ACC constitution and bylaws are.
• At a time of great stress, membership and procedural rules must be scrupulously followed; having two members of the Standing Committee serve in patent violation of the published rules should be unacceptable to anyone concerned with the rule of law.
• TEC must be disqualified from serving on any bodies concerned with faith and order, including the Primates’ Meeting and the Standing Committee so long as it insists on departing from the faith and order of the Communion and repudiating the agreed moratoria.
• The ACC and its Standing Committee must begin the process of reform to make them representative of the entire Communion and the Primates’ Standing Committee must also be made more representative.
• Given the structural and practical problems besetting the ACC’s Standing Committee, a provisional advisory committee enjoying the confidence of the Communion must be established to assume initial responsibility for Covenant matters. If the Standing Committee itself refuses to designate such a committee, the member churches should do so themselves. The opportunity to restore the Communion through the Covenant is a last chance that cannot be wasted.

Presiding Bishop Schori’s response has criticized Archbishop Williams’ decision on several grounds.  Here, let me address just three of her objections: first, that the Archbishop’s actions represent a move towards “centralization” within the Communion, viewed especially in terms of the application of “sanctions” against member churches;  second, that in removing TEC members from the Communion commissions in question, the Archbishop has somehow acted as if the proposed Anglican Covenant now before the Communion’s churches were already in effect when it is not;  third, that a proper understanding of the Communion’s life would entail the maintenance of diversity among Anglican churches, rather than the (punitive) pursuit of “uniformity”.

A common framework for ecclesial relationship?

These are all substantive issues, which I shall address one by one in a moment.  But to do so requires some larger common framework by which to understand the kinds of terms in use.  In this case, let me suggest a category for ecclesial relationships that is now known as the “Lund Principle”, named after the 1952 Third Conference of Faith and Order held in Lund (Sweden) where the “principle” was first enunciated.  The principle is this:   Christian churches should do together all things that can be done together, and do separately only that which must be done separately.  This appeal was made, in the Lund Report, not as a normative rule, but as a descriptive one that must be understood in terms of the greater Christian vocation to unity in all things, and “separation” in as little as possible.  Indeed, Lund was challenging the churches to a concrete unitive life, not the acceptance of the status quo of division:  “a faith in the one church of Christ that is not implemented by acts of obedience is dead”, the Conference wrote.

So, for Lund, the issues here had to do with the fullness of Christian life, not just compartments of it; and thus, “acting together” was a matter of faith and order – ministerial order and discipline – and vice versa.   Furthermore, “acting separately” was viewed as something that, for whatever granted convictions, stood as a barrier to unity.  (The division within the early ecumenical movement between “Life and Work” and “Faith and Order” is, in this light, deemed obviously artificial and ultimately misleading.)  Indeed, Lund over and over challenged the churches to self-criticism over these matters:  the “compulsion” to “act separately” was often one that grew out of sin, rather than a pure conscience. So the Lund Principle is as much (or, even more)  a negative judgment on the churches as it is a permissive direction.

I bring up the Lund Principle for a simple reason: TEC formally accepted it (as did the Lambeth Conference), and agreed to its application to all facets of its life.  Hence, its terms and meanings, at least in theory, represent a shared framework for assessing ecclesial relationships.  At the General Convention of 1976 (A034), TEC resolved the following:

And in the spirit of the “Lund Principle” approved by our church’s delegates and others attending the World Conference on Faith and Order in 1952 and affirmed by the 1968 Lambeth Conference, that the Episcopal Church at every level of its life be urged to act together and in concert with other churches of Jesus Christ in all matters except those in which deep differences of conviction or church order compel us to act separately; and be it further

Resolved, That in all future presentations of budget and program to this General Convention, consideration be given to what efforts have been expended to secure data ecumenically and to plan ecumenically; and be it further

Resolved, That the dioceses be urged to establish a similar policy of ecumenical review and planning.

(I note that the final two “resolves” direct both the national office and diocesan churches to frame their lives – “budget and program” – in terms of ecumenical consultation and planning, precisely a matter at issue in the last 10 years of TEC’s life.)

In her June 2 Pastoral Letter to TEC, Presiding Bishop Schori noted the following:

The Episcopal Church recognizes that [its] decisions [regarding Glasspool’s consecration] are problematic to a number of other Anglicans. We have not made these decisions lightly. We recognize that the Spirit has not been widely heard in the same way in other parts of the Communion. In all humility, we recognize that we may be wrong, yet we have proceeded in the belief that the Spirit permeates our decisions.

Using the Lund Principle framework, we can see that TEC’s Presiding Bishop has now made it clear that TEC feels “compelled to act separately”.  The significance of this declaration cannot be overstated.

In itself, this declaration need not involve a “value judgment”, for it is but a description of a church’s actions vis a vis other churches.  More than that, however, such a description entails the ordering of an altered relationship with these other churches.  Recognizing this helps us see that Presiding Bishop Schori does not seem to grasp that such separate actions may not be coherent with continued unity in its fullness, but that, for whatever justified local “compulsions”, they must affect the kind of unity that will be enjoyed with others. Add to this, however, that Communion leaders have in fact judged TEC’s actions to be unacceptable Scripturally and doctrinally, and TEC’s desire to “go ahead” anyway makes the “separateness” of their decisions unavoidably compromising of unity, whatever TEC’s own judgments of the matter may be.

This is not a matter of evaluating in advance what is “essential” and what is “non-essential” to ecclesial unity  – that, after all, is a matter that only the whole church can decide.  It is rather a matter of stating the obvious:  insisted separateness must imply embodied separateness of a kind, and such separateness is not the same as unity. That is the Lund Principle at work!  One might even go further, as Archbishop Williams wrote in his Pentecost Letter: “To maintain outward unity at a formal level while we are convinced that the divisions are not only deep but damaging to our local mission is not a good thing.”

Ecumenical discussions, of course, presuppose that such separations exist – if they did not, there would be no discussions in the first place.  But as Lund itself stressed, no church can escape responsibility for such separations, however conscientiously pursued or maintained.  Ecumenical engagement demands such sobering honesty, as well as every effort to resolve the challenges posed by those actions about which honesty is required.

But it is also clear that the parallel between ecumenical relations and relations within the Anglican Communion can be misleading:  the Communion’s churches, so the very notion of “communion” entails, exist in a real “oneness” in an ecclesial sense;  while ecumenical relations derive from an acknowledged imperfection within and obstacle to such oneness.  Still, the line of difference between the two is historically ever shifting, as we see today.  And in both cases – within ecumenical relationships and within Anglicanism as a “Communion” — the ecclesiological standards of communion are understood as being the same.  If they were not, the difference between a communion on the one hand, and an ecumenical relationship that is challenged to go further, on the other, could never be made.

Thus, one confusion in the current debate within Anglicanism is that the Communion is often treated (as by the Presiding Bishop) as an ecumenical partnership; another, is that the principles that govern “communion” and “ecumenical partnership” are not properly identified.  This has led, on the part of Presiding Bishop Schori for instance, to a fundamental misunderstanding, it seems to me, of the ecclesiological reality of communion:  contra Schori, in a “communion it is not up to one member to declare that their actions are without meaning to another or to the majority or to the whole.  Such a member can only say that it “must do” what it does, and thereby accept the fact that it has acted separately, with all the consequences of such separation. Within the civil sphere, this is called “civil disobedience”: citizens who share a commonwealth, yet disagree in conscience with some fact of its ordering, “disobey” an aspect of that ordering; at the same time, they accept the responses of the state made to their disobedience,  precisely because they acknowledge and submit to the civil society’s common embrace of their lives.  In the Church, such conscientious separation entails the acceptance of developing degrees of disunity as embodied in one’s own relationships with others.

Yet the Presiding Bishop’s letter, and subsequent statements, seems to ignore these ecclesiological meanings, in favor of another theology of the church, which one might call a theology of “pneumatic diversity” that has little bearing on questions and realities of unity.  This may indeed be a theology that has coherence in the long run – although I do not see how it can, on both Scriptural and historical grounds –but it certainly is not a theology that undergirds the ecumenical understandings of communion that TEC has, in the past, upheld and undertaken to uphold within the Anglican Communion.

And it is important to grasp this novel notion the Presiding Bishop has put forward, of diversity as unity, rather than “separated action as disunity”, because its novelty explains the otherwise incoherent arguments Schori makes regarding TEC’s drift away from representative standing within the Communion.

In this light, let us look at Schori’s objections to the Archbishop of Canterbury’s decisions regarding the removal of TEC members from ecumenical and faith and order commissions.

Centralization and sanctions

The Presiding Bishops accuses Williams of seeking some kind of “centralized” authority, and exercising it in an “unanglican” manner.  This objection ignores a host of historical and ecclesial realities.  Most importantly, the particular issues dealt with have to do with TEC’s representative character within the Communion; but Schori has herself admitted that there is nothing representative about TEC’s views on these matters at hand:  TEC has chosen to act “separately”, which is by definition to act “on its own”.

That the Communion has always understood its character as a gathered body to be one based on some kind of fundamental common face to the world is historically uncontroversial.  It finds its expressed origin in the beginnings of TEC itself, as it sought to order its life, newly independent of the Church of England.  The need for recognition of shared doctrinal and moral standards, without “stumbling blocks”, goes back to the 1786 letter from Canterbury and the English bishops to the new Episcopal Church, a letter that affirmed such shared standards as necessary for e.g. providing ministerial testimonials, and thus for the sake of continued “communion” (“spiritual” in this case).  The American Prayer Book’s Preface reiterated this general understanding of related identity (using the term “discipline” in the way that “order” is used today),  and the church passed, in 1786, an “Act of General Convention” “declaring [TEC’s] steadfast resolution to maintain the same essential Articles of Faith and discipline with the Church of England.”  Soon after, these kinds of matters were ensconced canonically, in something like the 1789 canon (IX) on the matters of recognition of orders and of episcopal “authority” of a [foreign] bishop, upon whose “testimonial” to the mutually understood doctrinal integrity and “moral” character of clergy depended “communion” with TEC.  Successive Lambeth Conferences (beginning with Lambeth 1867, Resolution 8 ) reiterated in different ways the fact that to be a member of the “Anglican Communion” embodied shared doctrinal and practical commitments, bound genetically to the Church of England’s original bequest.  And just on this basis, TEC itself affirmed, at its General Convention  in 1868, the first Lambeth Conference’s Encyclical regarding that common bequest.  It defined the bequest in terms of an “acknowledgment” of “one Lord, one Faith, one Baptism, […] connected by common Formularies,” and expressed in the Scriptures, Creeds, commitments of the “primitive church” and agreements of the first four General Councils. (These elements have informed the some of the Covenant’s substance.)

Indeed, TEC at the time joined in the kind of “sanctions” Presiding Bishop Schori now decries as “unanglican”, by “reminding” observers of its common repudiation of the South African bishop, John William Colenso’s, erroneous views regarding Scripture:  “this Church accepts the full spiritual validity of the deposition and excommunication of Dr. Colenso, pronounced by the Metropolitan and Bishops of the South African Church ; and we will regard him as deposed and excommunicate accordingly, until he shall so turn from his errors, and be restored to full communion by the Church of South Africa, which God of His infinite mercy grant” (1868, 20th day).  In doing this, TEC’s House of Bishops was announcing what they had already effectively done as a gathered body of “communion” bishops at the Lambeth Conference of the preceding year: upholding the actions of the Canterbury Convocation with respect to South Africa on a world-wide Anglican basis of shared episcopal discernment and decision.  The interplay of unity, recognizability and separateness is here clearly at work.

By 1868, then, the Rev. William Lamson, who headed the new American Episcopal congregation in Paris, could report to the General Convention on the gathering of American and English bishops and priests at his church the previous year:  this was a symbol, he announced, “of the essential oneness and complete intercommunion of these two branches of the Church. By an alteration of services in both uses, and by the conjoint ministrations of the Bishops and Clergy of both Churches, this unity was completely declared”.  That Lamson was describing this “Church” in terms of the Communion itself is likely.  But in any case, it was recognized and interchangeable ministries that marked this “essential” oneness, a oneness that expressed itself in the earlier Lambeth Conference’s gathered life in action.

TEC’s own understanding of her identity in this regard has been consistent with this, until very recently, as the 1967 Preamble to the Constitution (drawn from the language of the 1930 Lambeth Conference) makes clear:  the Preamble defines TEC primarily, not as an American denomination at all, but in terms of her membership in the Communion, and in relation to an “historical faith and order” that it shares with other members of this “fellowship”, bound to the Archbishop of Canterbury.

And so, the current Archbishop of Canterbury, Rowan Williams, has, after more than 7 years of consultation with various groups and commissions and “instruments of unity” within the Communion, merely stated a consistent judgment regarding TEC’s actions:  they are actions that, in contrast to a given identity from the past, have now been taken “separately” from the Communion’s common self-presentations.  In removing TEC representatives from ecumenical and faith-and-order groups within the Communion, he has hardly pressed towards a “centralization” of control over the Communion.  Rather, he has thus articulated a fact that is well-known and admitted by Schori herself:  TEC has acted, in conscience, separately from others.   And in doing this, the “unity” of the Communion’s life has been altered at least in this regard.  It makes perfectly good sense for TEC to engage in any discussions it may desire with other Christians, as they in turn are willing to engage;  but it no longer makes any logical sense for TEC to speak out of the unity of the Communion’s views, such as they are.  Canon Kearon’s own remarks regarding such discussions in light of TEC’s actions – that “they are at the point of collapse” — indicate that the larger Communion’s ecumenical partners understood this the same way.

Is the Archbishop preempting the Covenant’s adoption?

It should be clear that the Covenant, in this regard, does not represent the invention of a new set of dynamics.  Rather, as has been the claim from the beginning of the Covenant’s formulation, it seeks to express the character of the Communion already in place, if not always defined explicitly.  To describe the actions Archbishop Williams’ decisions, let alone of the Covenant’s proposed common accountability, as based on a “punitive” model of the Church seems, again, historically in error, as noted above:  the “bonds” of “communion” among what became the Anglican churches, were those of “acting in unity”;  their solidity has been measured inversely to concrete actions made in “separation”.  And such “separation”, when it is accomplished through deliberate action, is a term of description, not of punishment.

Do the churches of the Anglican Communion need to wait for a Covenant to know this?  Hardly.  For how could we thereby make sense of e.g. TEC’s 19th-century affirmation of the Church of England’s and South Africa’s excommunication of Bp. Colenso, and its engagement at the Lambeth Conference in these matters?  Indeed, it is important to realize that the Anglican Communion’s emergence as an entity – referred to for the first time, it seems (and by Americans first of all?) only in the 1850’s – gathers decisional substance only bit by bit, with discussion but without rancor or dispute, because the character of unity in doctrine and discipline was a presupposition, rather than an invention, to the members of the growing Communion.  And, as a presupposition, the conditions of its meaning demanded ongoing fashioning of methods for its formal sustenance and definition, i.e. “standards” and structures.

But the standards and structures were expressive of, not creative of, a prior ordering of life. There were no constitutionally organized Communion legislatures that set up the Lambeth Conferences, or the ACC or the Primates’ Meeting, let alone consistent means by which Anglican representatives were chosen to head the Faith and Order movement (as Anglicans like Charles Henry Brent and William Temple did) and other bodies in an astonishing succession of world ecumenical leadership. Invitations were offered;  ad hoc suggestions were made and channels of decision-making proposed and followed.  No one questioned these gatherings, emerging structures, and representative choices as being without legislative foundation, largely because their articulation came out of an already acknowledged “unity”.   It was only as decisions in separation were made by Communion churches (and here we do need to note that other churches besides TEC are representing the Lund Principle at work1), not once but in consistent repetition, that the question of “legitimation” was self-consciously posed, posed mostly, however, by those like TEC whose actions no longer engaged the coherent self-identity of other Anglican churches.   But, as with Colenso’s appeal to the civil powers of England proved, such questions are raised in demonstration of the distance apart that churches had already moved, one from another.

It is not the case, therefore,  that the proposed Covenant has somehow been prematurely implemented “against TEC”;  the dynamics of unity and separation have been well-known within the Communion for some time.  Rather, the ongoing character of Communion decision-making continues, without yet the regularized features a Covenant may provide.  But when these features are provided, they will organize something already given.

The character of communion and diversity

Is all “diversity” of viewpoint the same thing as “separation”?  The Presiding Bishop is right to bring up the question of appropriate “diversity” within the Communion.  But it is also a question that Archbishop Williams has long grappled with as well. Only recently, he spoke in Durham (January 2009) on the ways that Anglicans have, from the early 16th-century, always sought ways of discovering and employing a shared language of consensus, that could properly place diverse particulars of religious commitment in a more universally recognizable framework.  This has been an Anglican commitment and tradition, so that “while no external authority can be invoked to coerce the local church in the realm of England, this does not imply that that church’s doctrine and discipline are no-one’s business but its own”.  In his November 2009 Willebrands Lecture at the Gregorian University in Rome, he challenged Roman Catholics to take more seriously such shared consensus about central ecclesial claims, not allowing a “diversity” in understandings of ordained leadership to undermine the deeper agreements Anglicans and Catholics have reached regarding the character of communion as a common means of “filial holiness” in Christ and with one another.  This argument demonstrates a far subtler approach to the question than Schori acknowledges, for it realizes that there are diversities that do not undercut certain recognizable agreed-upon commonalities;  by the same token, however, such distorting diversities do exist.  The point is to take the trouble together to make these distinctions, which cannot be assumed and require the work of consultation.   And thus, in the recent Pentecost letter to which Schori objects, Archbishop Williams sought to emphasize how diversity and “recognizability” within the Communion are not always, as now, mutually supportive characteristics, and that such consensually “acceptable” recognizability of shared faith and order must inform the Communion’s representatives as they seek common understandings with other Christians.

But the whole question of diversity and communion more broadly has been a consistent Anglican concern, at least since the late 18th-century English bishops required of the nascent Episcopal Church that she reorder her Prayer Book (e.g. replacing those parts stricken from the Americans’ proposed version of the Apostles’ Creed), if she wished to have her ministers and bishops “recognized” through a process of continuous succession with the English Church.   It was still a question when the first Lambeth Conference met and resolved that “it is necessary that [newer Anglican churches] receive and maintain without alteration the standards of faith and doctrine as now in use in [the Church of England]”, echoing in this instance TEC’s initial commitments from 1786.  The bishops then explained that, nevertheless, “each province should have the right to make such adaptations and additions to the services of the Church as its peculiar circumstances may require”.   Immediately, however, the bishops noted a proviso, “that no change or addition be made inconsistent with the spirit and principles of the Book of Common Prayer”, a standard that, if rather loose, at least pointed to a text.  Further, the bishops insisted more concretely, “that all such changes be liable to revision by any synod of the Anglican Communion in which the said province shall be represented”.   And here, obviously, “representation” is not viewed as a veto power for one’s own interests, but rather as a participatory role bounded by unitive action.

One can argue whether this Lambeth resolution was consistently followed through in a strict sense.  And so, with respect to the broader diversity-unity question, the Communion has tended to address difficult issues on this score as they have arisen, rather than through a strict censorial mechanism, whether constitutional or confessional.  But does this lack of a defined template that can measure when diversity becomes “too much”, or when the “recognizable becomes unrecognizable” indicate that in fact there is no means of discernment at all?  Certainly not, since the dynamic of recognition – unity and separation — has performed this task quite adequately:  when one church is no longer recognized as representing other Anglicans before the world, diversity has exceeded the measure of unity.

And, indeed, if the Archbishop of Canterbury himself, based on whatever means by which he has made this determination (in this case, years of consultation) no longer recognizes TEC as representative of the Communion that – for TEC and many other Anglican churches – is substantively defined by their bonds with him, then it is a simple descriptive fact that TEC’s particular convictions have undercut common Communion commitments.  There is not some other mechanism that awaits application to reveal this fact.   Indeed, the claim made by the Presiding Bishop that a Covenant is needed first before this can be done, — and therefore it cannot be done now — only underscores TEC’s choice to move to the side of previously acknowledged means of discernment regarding appropriate Christian diversity with the Communion, and to claim a kind of Communion chaos on this matter that even more desperately seeks some kind of covenantal resolution.

Finally, what are we to make of the fact that the Presiding Bishop and other leaders of TEC have long sought to undercut the strength of local diversity within the American Church – there are vast swaths of no-go zones in TEC for traditional and conservative Episcopal clergy and scholars, imposed quite consciously by bishops and the committees they lead?  Or that they have now put in place disciplinary canons (the revised Title IV rules) that would give the Presiding Bishop the arguably unconstitutional power to inhibit fellow bishops without prior consultative permission?  None of this suggests a stable understanding of the relationship between diversity and Christian unity, despite claims to the contrary in her Pastoral Letter.   While the diversity-unity question deserves (and has received) significant Scriptural and theological scrutiny, its practical import is nonetheless contained within these kinds of “actions”, as Lund put it:  one judges the character of a tree of unity by its fruit, if always somewhat retrospectively.

Owning one’s own actions with grace

In a real sense, both Archbishop Williams and Presiding Bishop Schori agree on how TEC’s actions relate to the Communion’s common life:  they are actions taken separately from that life. What they disagree on is whether these actions thereby alter the degree of unity TEC now inhabits in relation to the Communion.   Yet, as I have tried to illustrate, that alteration is an inevitable ecclesiological consequence that is bound up with acting separately, at least as such action is understood within the framework of ecclesial relationship that most churches have long accepted.   That consequence is not one of punishment or juridical coercion.  It is simply an essential aspect to separated actions.  Nor are such actions as such “wrong”, although in this case the stated consensus of the Communion is that they are Scripturally illegitimate, which makes their insisted performance something that deliberately challenges the oneness of Anglican witness.  Thus, considered by all sides, even by TEC,  they are a mark of disunity.  It is that mark, and that mark alone, that is being acknowledged now by the Archbishop.  It would be another mark, the mark of graciousness, if the Presiding Bishop could, in this instance at least, agree with him on this point and accept the meaning of this reality.

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.

Again, in her recent sermon at Southwark Cathedral, the Presiding Bishop began by giving her standard enumeration of the sixteen countries:

I bring you greetings from The Episcopal Church, from Episcopalians in Taiwan and Micronesia, in Honduras, Ecuador, Columbia, Venezuela, Haiti, our biggest diocese, the Dominican Republic, the British and U.S. Virgin Islands, Puerto Rico, and from the Episcopal Churches in Europe, in Austria, Belgium, France, Germany, Italy and Switzerland.

Oddly missing from this list is the United States.

It is instructive to review the average Sunday attendance of TEC’s churches in these countries using the most recent data (2008) in the order of the Presiding Bishop’s standard recitation:

Taiwan – 680
Micronesia – 138
Honduras – 12,340
Ecuador – 2017
Columbia – 1081
Venezuela – 489
Haiti – 16,631
Dominican Republic – 3058
Virgin Islands – 2041
Puerto Rico – 2342
Churches in Europe – 1302   (Austria, Belgium, France, Germany, Italy and Switzerland)

In her recent address to the Scottish Episcopal Church, the Presiding Bishop used the same list that she used in Southwark, but began her address to another “Episcopal Church” by defending the use of the name “The” Episcopal Church: “we’ve struggled with what to call ourselves because ECUSA is not accurate.”  In fact, the official name of TEC as designated in its constitution is“The Protestant Episcopal Church in the United States of America, otherwise known as The Episcopal Church (which name is hereby recognized as also designating the Church).”  She also stated that the Churches in Europe were “rapidly becoming indigenized.”  The data show that they have declined 13% since 2003 from an ASA of 1500 to 1302.

TEC is not, of course, the only “international” church in the Anglican Communion.  Others include the West Indies, Central America, Southern Cone, Ireland, West Africa, Central Africa, Southern Africa, Indian Ocean, Jerusalem and the Middle East, Southeast Asia, Melanesia and Aotearoa New Zealand and Polynesia.

But the most international of all Anglican churches remains the Church of England.  In addition to churches extra-provincial to Canterbury in Spain, Portugal, Bermuda, Ceylon and the Falkland Islands, the Church of England’s Diocese in Europe includes parishes or missions in forty-three countries with a weekly attendance of 12,600.

Sources:

TEC Statistics 2008

Presiding Bishop:

to Executive Council

at Southwark Cathedral

at SEC General Synod

Church of England Diocese in Europe

Church of England statistics

Convocation of Episcopal Churches in Europe

The Episcopal News Service has announced that Bishop Ian Douglas of Connecticut was elected by the Executive Council on June 18 to succeed Bishop Catherine Roskam as the episcopal representative from TEC on the Anglican Consultative Council. In addition, a presbyter, the Rev. Gay Jennings, was elected to the clerical seat on the ACC formerly held but since vacated by Bishop Douglas.

We note that until recently Bishop Douglas also held a presbyter seat on the Executive Council as well but he formally resigned that position in February in light of his anticipated consecration to the episcopate. He noted in his resignation letter that:

The reason for my resignation is my “translation” to a new order as a result of being elected to the episcopate in the Diocese of Connecticut. I thus can no longer serve as a presbyter elected by the General Convention to the Executive Council.

Although there has been public confusion on this issue, Bishop Douglas has stated that he did not send a similar letter to the ACC, notwithstanding his recognition that he “can no longer serve as a presbyter” and the confirmation now by Executive Council that his presbyter seat on the ACC is vacant and needed to be filled. Indeed, today Bonnie Anderson described both seats as “open.”

This recognition by the Executive Council that Bishop Douglas’s clerical seat has been vacated and the attempt to elect him to the episcopal seat have clear consequences under the ACC’s constitution and rules. The point at which Bishop Douglas’s clerical seat was vacated was his consecration to the episcopate in April, and accordingly he ceased to be a member of the ACC’s standing committee at that time. Restoration of the ACC’s credibility requires recognition of these facts notwithstanding TEC’s determination to flout the ACC rules.

First, the date on which Bishop Douglas’s clerical seat on the ACC became vacant was April 17 when he was “translated” to the episcopate and could “no longer serve as a presbyter.” Clause 4(d) of the ACC constitution provides:

Bishops and other clerical members shall cease to be members on retirement from ecclesiastical office.

And ACC Resolution 4:28 proves that “retirement” in this context is used in a broad sense to mean leave or vacate the office or position for any reason:

Standing Committee members take their place on the Standing Committee as from the end of the Council Meeting at which they are elected and hold their position until such time as their successors take their place or they retire for any other reason. (Emphasis added.)

Therefore, Bishop Douglas’s membership on the ACC ended on April 17 when he retired from his presbyterial office and was “translated” to a new order.

Second, Bishop Douglas also ceased to be a member of the ACC standing committee at that moment. Article 2(f) of the ACC bylaws provides:

Elected members of the Standing Committee shall hold office from the end of the Council meeting at which they are appointed until the end of the last ordinary Council meeting which they would be entitled to attend but subject to earlier termination in the event that such elected member shall for any reason cease to be a member of the Council. (Emphasis added.)

Bishop Douglas therefore is no longer a member of the standing committee, and his seat on that committee is now also vacant.

Third, under Article 7 of the ACC bylaws, the standing committee may fill this vacancy only by appointing a member of the same order, in this case, clerical, as that of the former member:

Casual Vacancies on the Standing Committee

In the event of a casual vacancy occurring in the membership of the Standing Committee between Council meetings the Standing Committee itself shall have power to appoint a member of the Council of the same order as the representative who filled the vacant place and such member shall have full voting rights for the remainder of the term of service of the former member. Such member shall, subject to his or her eligibility for continuing membership of the Council, be eligible for re election to the Standing Committee at the next Council meeting. (Emphasis added.)

Therefore, the standing committee could not appoint, even if it wished to do so, Bishop Douglas to replace himself.

Fourth, Bishop Douglas is not eligible in any event to replace retiring Bishop Roskam as TEC’s episcopal representative to the ACC. Clause 4(c) of the ACC constitution provides:

On termination of his or her period of office, no member shall be eligible for re-appointment nor shall he or she be appointed an alternate member until a period of six years elapses from the date when such original membership ceased.

Bishop Douglas may not serve again on the ACC until 2016. This rule is constitutional, not merely a bylaw or resolution.

Fifth, even if Bishop Douglas could be elected to TEC’s episcopal seat, his new term would not begin until the next ACC meeting under ACC Resolution 4:28:

those elected or appointed to the Anglican Consultative Council begin their membership as from the beginning of the first Council meeting following their election.

He would not be qualified to serve on either the ACC or the standing committee under any circumstances until that time.

Finally, unless Bishop Douglas retracts the authorization given by his predecessor to perform same sex blessings in the diocese of Connecticut, he is not “qualified” to serve on the ACC under the precedent established at ACC-14 by the refusal to seat the appointed member of Uganda. The ACC Secretary General advised Archbishop Orombi that this refusal was on the grounds that:

The Joint Standing Committee has discussed this at length. We understand that the Revd Philip Ashey’s relationship with the Church of the Province of Uganda is as a result of a cross provincial intervention, and note that such interventions are contrary to the Windsor Report and other reports accepted by successive meetings of the Instruments of Communion, including Primates’ Meetings which you have attended. Therefore we regret to inform you that Mr Ashey’s current status means that we cannot regard him as a ‘qualified’ member according to Section 4(e) of the current Constitution.

Authorization of same sex blessings is “contrary to the Windsor Report” and to the moratoria that have now been affirmed by all four Instruments of Communion, including the ACC. Accordingly, Bishop Douglas is not, consistent with the interpretation articulated by the Secretary General, “qualified” to serve on the ACC.

It is significant that the standing committee’s decision concerning Fr. Ashey was taken the day before ACC-14 began in Jamaica. Under the Clause 8 of the ACC constitution, the standing committee is authorized to act for the Council “between meetings.” Rather than refer the matter of Ashey’s qualification to the Council itself the next day, the standing committee acted at the last possible minute, reportedly at the request of TEC’s Presiding Bishop, to reverse the prior decision by the Secretary General already communicated to Uganda to accept Ashey’s appointment. This last minute reversal, which the standing committee refused to submit to the Council as a whole, meant that Uganda had no opportunity to send a replacement and therefore had no clerical representative at ACC-14.

We have written on all these matters before, but TEC has now clearly set its face against complying with either the moratoria requested by the Communion’s Instruments or the measured requests made of it to hold the Communion together in light of TEC’s intransigence. TEC requires the resignation of Bishop Douglas from its own council, but shows contempt for the rules and canons of the Communion as a whole and other member churches. The ACC can ill afford to ignore the flouting of its rules by TEC. The ACC’s credibility has been badly damaged in recent years by actions that are widely seen as favoring TEC over wider Communion convictions and sentiments. And this harm has only been highlighted by resignation and principled absence from the ACC’s standing committee. Restoration of the ACC’s credibility can only begin by enforcing its rules in the case of Bishop Douglas’s attempt to hold onto a standing committee seat that became vacant under the rules on April 17.

Clearly the Presiding Bishop’s Pastoral was written in response to the Pentecost letter of the Archbishop of Canterbury.  In that letter the Archbishop made it clear that the recent actions of TEC raise questions about the suitability of members of our church to represent the Anglican Communion in conversations with the Communion’s ecumenical partners.  He also indicated that he, as Archbishop of Canterbury, has authority to determine the status of the Presiding Bishop in respect to the meeting of the Primates. He said as well that he intends to consult with the Primates about the most prudent course for the exercise this authority.

Among many other things, the Pentecost Letter of the Archbishop presents the distinct possibility that TEC’s Presiding Bishop will be placed within what has been called a “second track” within the Communion. If she is in fact located on the “second track” so also in some way may be TEC, the church she represents.  The Pastoral of the Presiding Bishop must be understood in large measure as a response to this possibility.  Confronted with location within a “second track” of Anglicanism, the Presiding Bishop has thought it necessary to give an account of TEC’s actions both to the members of TEC and the various Provinces of the Anglican Communion; and in so doing block the course of action the Archbishop seems to be taking.

The account she offers of TEC’s action and the response of the Archbishop is intended (1) to defend the course TEC has chosen to follow, (2) to call into question both the probity of the Archbishop and his authority to respond as he has, and (3) set forth a normative account of what it means to be a Communion—an account that runs counter to the one contained in the Covenant each of the Provinces have been requested to consider for adoption.

(1) The letter is meant first as a defense of TEC’s actions. It is from start to finish a defense of an action already taken rather than a request for the Communion and its ecumenical partners in their collective wisdom to help TEC test the spirits.  Given the fact that TEC’s action represents a remarkable novelty in the history of Christian belief and practice, one would have thought that some testing of the Spirit not just by TEC but also by the Communion as a whole is in order.  In the face of a novelty of this magnitude the burden of proof surely lies with TEC.  After all, all four of the Instruments of Unity have urged that actions like those of TEC not be taken.  In the face of such widespread opposition, it is a mystery why the Presiding Bishop fails to see that this is so.

Nevertheless, she does not, and so strongly suggests that it is up to the Communion to catch up with TEC rather than the reverse.  When it comes to TEC’s actions, it seems that she believes it is proper for the tail to wag the dog.  Thus, she starts with a fait accompli, and then marshals a bevy of arguments to show (1) that TEC has done the right thing and that (2) that the Archbishop is just plain wrong in requesting that TEC’s representatives step down from bodies that represent the Communion in ecumenical settings.

The foundation of her defense is that TEC has taken the action it has in response to the guidance of the Holy Spirit. She notes that parts of the Anglican Communion and some of TEC’s Christian partners believe the same thing, but admits that many (she should have said most) Anglicans do not.  It is at this point that her argument takes a curious direction.  She seems to believe that in some mysterious way the Spirit is leading both TEC and her opponents.

This claim is certainly incoherent.  It’s hard to see how the Holy Spirit can favor TEC’s action yet be opposed to it.  That said, the burden of her letter is that TEC has understood the promptings of the Spirit correctly.  Thus, she makes much of the Spirit teaching new things and promoting diversity.  In doing so she relies heavily on John’s saying about the Spirit teaching new things and Acts depiction of each hearing the Gospel in their own language.  The Johannine citation is intended to justify TEC’s introduction of theological and ethical novelty, and the citation from Acts is meant to justify contextualization of the Gospel in ways suitable to various languages and cultures.  She seems to be saying both that TEC’s action is a new thing taught by the Spirit and that it is suited to America’s particular cultural and “missional” situation.

My colleague Christopher Seitz, in his article “God the Holy Spirit and being led into all truth,” has shown that both these claims misrepresent the plain meaning of the texts upon which she relies.  (http://www.anglicancommunioninstitute.com/2010/06/god-the-holy-spirit-and-“being-led-into-all-truth”/) What he says is convincing in itself and there is no need to rehearse his exegesis here.  The point is that the Presiding Bishop begins with the tendentious claim that TEC’s action accords with Scripture and represents a new work of the Holy Spirit.  Here is the tail (TEC’s action) that she then uses in an attempt to wag the dog (the weight of Communion teaching, procedure, and opinion).

(2) What I mean is this.  To sustain her position she launches an attack on the Archbishop’s response.  She seeks to show not only that the Archbishop is acting to quench the Spirit, but also that he has taken a morally dubious course that violates longstanding Anglican tradition. A hallmark of Anglicanism, she says, is a form of “diversity in community” that manifests “willingness to live in tension.” This tolerance of diversity “recognizes that the Spirit may be speaking to all of us, in ways that do not at present seem to cohere or agree.”

I have already noted that her view of the Spirit’s leading seems incoherent.  I will leave it to the historians among us to assess her claims about the tolerant character of the Elizabethan Settlement, but it has never seemed to me that the Act of Uniformity was meant to put up a big tent, or that the treatment of Anabaptists (they were burned) showed great openness to contrary views of the Christian’s relation to the state.  The fact of the matter is that “Anglican inclusiveness” serves more as a charter myth for legitimizing contested issues than a solid historical precedent for innovation.  Anglican history, though not overly confessional when it comes to doctrine, manifests extraordinary caution when it comes to changing practice.  If anything, caution in respect to changing practice is a “hallmark of Anglicanism.”

The real issue, however, is not the claim about “diversity in community” or “willingness to live in tension.”  The real issue is what Anglican’s are to do when the action of one Province, diocese, or person within the Communion takes an official action that others do not “recognize” as consonant with Christian belief and practice.  The issue of “recognition” stands in the background of the first Lambeth Conference.  There, the question of recognition centered on Bishop Colenso’s interpretation of Holy Scripture.  Latterly, the question of recognition surfaced with the consecration by TEC of a partnered gay man.  Now it has surfaced once more with the consecration of the Suffragan Bishop of Los Angeles.

The Anglican Covenant is the latest attempt on the part of the Communion to address this issue.  The Pastoral Letter of the Presiding Bishop, however, simply assumes that the diversity of Anglicanism renders the question of “recognition” moot.  Each Province should have authority to determine the Christian adequacy of its actions on its own. Each Province should be free to determine the way in which Christian belief and practice are to be rendered within its particular cultural context.

Once more, the tail wags the dog!  Most Anglicans elsewhere may not “recognize” what TEC has done as “Christianly apt.”  But TEC is best suited to be judge in its own case and other Provinces, no matter what their convictions might be, should simply be accepting of this fact.  Having arrived at this point, however, the TEC tail wags the Communion dog in yet another way.  Given the unfettered autonomy of the Provinces the Presiding Bishop assumes, she sees the letter of the Archbishop as a  “troubling push toward centralized authority.”  It seems that in yet another way Anglican tradition has been violated.  So she notes, “Anglicanism as a body began in the repudiation of the control of the Bishop of Rome.”

The statements of the Archbishop that “push toward centralized authority” put the Presiding Bishop in mind of the Anglican Covenant.  She sees this proposal also as an “instrument of control” (and so contrary to the Anglican tradition of diversity).  Thus, while the Archbishop in all his communications has spoken of “recognition” and “consequences” she speaks of an “instrument of control” that imposes “sanctions.”  Clearly, she seeks to depict the Archbishop and the Covenant as harbingers of a centralized Anglican authority like the Vatican.  Given these views, one cannot imagine those within TEC who share the Presiding Bishop’s views giving support to the proposed Covenant.

Be that as it may, I can only say in response that either she has failed to understand the Covenant proposal or she is simply distorting its plain meaning.  The dreaded Section Four she mentions does no more than lay out a procedure for recognition or non-recognition of contested action. In this procedure there is no central authority to be found.  If anything, the process is so diffuse one wonders how any common judgment can be arrived at.  A Standing Committee receives questions about recognition, assesses them and possible consequences, passes recommendations on the Primates and the ACC and these recommendations are in turn assessed by each of the Provinces.  This doesn’t look much like the Vatican to me.

So the claim is that the Archbishop’s letter lies outside the circle of Anglican tradition.  I wish she had stopped here, but she didn’t.  She goes on to question the moral probity of the Archbishop’s request.  In his attempt to limit the TEC’s autonomy, she detects a colonial attitude that “attempts to impose a single understanding across widely varying contexts and cultures.”  The Archbishop’s letter thus gives expression to “the same kind of colonial excess practiced by many of our colonial forbears.”  So now TEC is the victim of “colonial excess” by the same people from whom we broke through a revolution.  All one can say is that this is a curious charge, given the fact that the most common criticism of the Archbishop is that he has been loath to use the authority of his office to rein in TEC’s idiosyncratic actions and in his letter he proposed only the most modest consequences.

(3) Nevertheless, modest though the proposed consequences may be, they have prompted another wag of the dog’s tail.  This time, in order to place TEC’s action beyond the reach of communion reaction, she in fact proposes an account of communion that legitimates TEC’s claim to autonomy rather than the view of mutual subjection within the body of Christ that stands at the foundation of the Covenant.  She wants no checks on the actions of the various Provinces of the Communion.  By implication, mutually recognized faith and practice do not play a central role in the Communion of Anglicans.  Communion then, as her final paragraph makes plain, consists of listening one to another, continuing conversation, joint efforts in theological education, and less formal and more local partnerships in mission and ministry. As best I can determine, her view of communion does not flow from mutually recognized belief and practice but from bilateral, even multilateral assistance in mission and ministry.

I have argued elsewhere, that in comparison with that proposed in the Covenant, her view of communion is “thin” rather than “thick.”  It does not ask the Provinces to have mutually recognizable forms of belief and practice—only that they keep open lines of communication and provide one another mutual assistance.  And it appears that this view of communion stems from an attempt to justify a contested action already taken.  The tail wags the dog!

I am prepared to say also that this view of communion amounts to an attempt to export American denominationalism and in so doing remake the Communion in TEC’s image.  Americans are prone to this sort of thing. The Presiding Bishop’s proposal remakes the world in America’s image and so reduces the various Provinces of the Communion to denominated national expressions that share the same historical origins but need not see in one another forms of belief and practice they recognize.  Each is free to cooperate or not as they may see fit.

I could spend far more time and space expositing the two views of communion the letters of the Archbishop of Canterbury and the Presiding Bishop exemplify.  That discussion, however, points to the theological and practical work that lies ahead for the Communion in the coming season.  All I can do here is indicate the sort of challenges that lie before us.  Those challenges, so it seems to me, press hard upon us even now.  As I write, the Presiding Bishop has undertaken an extensive and intensive travel schedule to Canada, England, and Scotland. She appears to be in the midst of a diplomatic campaign to gain support for TEC’s actions and for her view of communion life.  So she seeks to cast doubt on the wisdom and probity of the Archbishop of Canterbury, the chief symbol and instrument of Anglican unity and identity.  She seeks also the call into question the proposed Covenant.  She also promotes a thin account of communion that runs counter to the proposed Covenant.  The Covenant now before the Communion sees communion as more than a means for promoting cooperation and mutual support.  The Covenant supported by the Archbishop of Canterbury is a means of maintaining commonly recognized forms of belief and life and so also a coherent and common view of the mission to which the Provinces of the Communion are called.