In order to weigh current arguments about the structure of The Episcopal Church and its relationship to the other members of the Anglican Communion, it may be useful to reflect on earlier periods in which the Constitution and Canons of The Episcopal Church have changed significantly.  It could be argued that the three most important such periods in the history of The Episcopal Church in which such change took place were:  the American Revolution, the early 20th century, and the 1960s.  The first of these three periods was perhaps the most radical, an attempt to revise English canon law in light of American democratic ideals.  The second of these periods of reform was perhaps the most sweeping; Episcopalians of the early 20th century attempted to replace a set of individual provisions with a comprehensive code of canon law.  The third period of revision—during the 1960s—is an important realignment made in recognition of the increasing complexity of the Anglican Communion.

Constitution and Canons for a new Democracy

Later in this volume other authors will write about the precise details of the Constitution and Canons that were adopted by the Episcopal Church in the period from 1785 to 1789.  At this point I do not want to enter into that very important conversation.  What I would like to do is to step back and simply consider the importance of the fact that a set of constitutions and canons were adopted at all.

It is easy for contemporary Americans to overlook the degree to which William White (1748-1836), the first bishop of Pennsylvania and the longest serving Presiding Bishop (1789, 1795-1835), and his colleagues departed from the English model of church organization that they inherited.  Americans, after all, declared their interest in preserving “the religious principles of the Church of England,” and they continued to use much of the same terminology as their English co-coreligionists.1  Nevertheless, they created a church quite unlike that of England.

Apologists for the Episcopal Church often overemphasize the degree to which the revised Episcopal Constitution of 1789 and the U.S. Constitution of the same year were the product of the same personnel and based upon the same principles.  What is true, however, is that the deputies who gathered in General Convention and the representatives who gathered in the Continental Congress faced a similar problem.  They sought to reduce to written form systems of government, at a time when the British example on which they could build lacked written constitutions.  The Church of England, like the English Parliament had no written constitution.

There were also limits to the concrete example that could be provided by the Church of England.  That church had a theoretical system of clergy convocations.  Both the provinces of Canterbury and York had a history of gatherings of bishops and clergy in “two-house” assemblies, but the convocations had not met since 1717 and would not meet again until the mid-19th century.2  Americans could not turn to the Church of England for a contemporaneous model of church organization.

The Church of England did, to be sure, have a canon law code: a set of 141 canons prepared largely by Bishop Richard Bancroft, presented to the Convocation of Canterbury during the winter of 1603-04, and approved by James I in April 1604.  The canons, however, were largely a response to the specific conditions and debates of the English Church in the early years of James I, which the English had made no attempt to revise or update in the intervening two centuries.  (The Church of England would not consider revisions in the canons until 1865 and would not replace the code itself until 1969.3)   The code did not contain a succinct statement of polity or doctrine, and individual provisions were often stated in the negative.

These English canons were divided into eight sections.  The first (canons 1-12) concerned general principles of the Church of England, and particularly the role of the monarch and the suppression of dissent.  It was followed by sections on worship (13-30), ordained ministry (31-76), school masters (77-79), church buildings and lands (80-88), lay leadership (89-91), church courts (92-138), and synods (139-141).

The Americans drew on only 11 of these 141 canons—three for the constitution and eight for the canons.  The three articles in the constitution based at least in part on English Canons were Article VIII on the “use of the Book of Common Prayer” (English Canon 14 on “prescript forms of divine service”), Article VII on “Examination and Ordination” (English canon 35 on the “examination of such as are to be made ministers”), and Article I on the General Convention (English Canon 139 on “a National Synod”).  Roughly half of the canons adopted in 1789–8 of 17—were based at least in part on English antecedents.  The English canons on which they relied were 13 (on keeping the Sabbath), 26 (which paralleled the Book of Common Prayer provision about exclusion of certain persons from communion), 31 (on the times of the year for ordination), 33 (on the positions to be held by clergy), 34 (on candidates for ordination), 55 (which directed clergy not to use extemporaneous prayers before sermons), 70 (on keeping registers of baptisms, marriages, and burials), and 75 (on “Sober Conversation” of clergy).

What is striking here is not the degree on which the Americans relied on the previous English canons, but the degree to which they omitted legislation on whole areas covered by the English canons.  The combined number of articles in the constitution (nine) and canons (seventeen) in the Constitution and Canons of the Episcopal Church was less then 20% of the number of English Canons of 1603-04.  Americans did not rely at all upon any of the material in four of the eight sections in the English canons: those concerning general principles, schoolmasters, church buildings and property, or lay leadership. In the place of a provision for a national court system, they specifying only that “the mode of trying Clergymen shall be instituted by the” state convention.

Americans were in part able to adopt this minimalist system because of their reliance on something that the Church of England lacked: a system of diocesan constitutions and canons.  To this day the dioceses of the Church of England (with the sole exception of the Diocese in Europe, the British equivalent of The Episcopal Church’s Convocation of Churches in Europe) have no diocesan constitutions and no diocesan canon laws.5  In contrast, the Americans produced a constitutional system in which the national General Convention assumed the existence of diocesan constitutions (which provided for the election of bishops and deputies who served in General Convention) and canons (which addressed the many issues such as discipline that were not covered in national canons).

In summary, the American Episcopalians adopted a constitution (which the Church of England lacked), a body of national canons (which covered only a small percentage of the material covered in the English canons of 1603-04), and a system of diocesan constitutions and canons (also lacking in England).

This combination of decisions had two important consequences for the later development of canon law in The Episcopal Church.  First, the omission of canons covering five of the eight categories of the English Canon law provided an agenda of issues to which later General Conventions would return.  Second, the adoption of both national and diocesan constitutions and canons set up the possibility of a conflict of authorities absent in the Church of England.

The Early 20th Century

Episcopalians of the early 20th century looked at their Constitution and Canons with a very different set of eyes.  Episcopalians of the period were convinced of the need to reorganize their church along the lines of what they referred to at times as “business-like methods”—i.e. the techniques of centralized leadership and planning being used to build the large corporations and financial conglomerates of the time.

The recasting of the Constitution and Canons was done in two stages.  The first stage was the work of a long-running joint committee (i.e. one with members of both the House of Bishops and the House of Deputies) which completed its work in the early 20th century.7  The committee identified three sub-goals in its attempt to give a more business like shape to the Constitution and Canons:

(1) of rendering [the Constitution and Canons] more entirely harmonious and freeing them from ambiguities; (2) of adapting them to the greater enlargement and growth of the Church; and (3) of clothing them with such accuracy and precision of language as to relieve the Digest from the technicalities and objections which are made to its phraseology by jurists and canonists.

The reference to jurists and canonists make it clear that the members of the General Convention’s Joint Committee were aware that they were not working in a vacuum.  By the 1890s, when the joint committee began its work, there were a growing number of Episcopal authors who wrote on canon law. Among them were Murray Hoffman (Treatise on the Law of the Protestant Episcopal Church in the United States, 1850), Francis Vinton (A Manual Commentary on the General Canon Law and the Constitution of the Protestant Episcopal Church in the United States, 1870),  John Wallingford Andrews (Church Law; suggestions of the law of the Protestant Episcopal Church in the United States of America, 1883), George H. Humphrey (The Law of the Protestant Episcopal Church, 1890), William Stevens Perry (The General Ecclesiastical Constitution of the American Church, 1891), and Edwin Augustine White (American Church Law, 1898).  The last of these would play a particularly important role in the history of Episcopal Canon law.

The Church of England had attempted, unsuccessfully, to revise its canons in the period from 1874 to 1879 and had in the process produced a model set of canons.9  An unsuccessful proposal made in the U.S. by the joint committee in 1895 that would have changed the name of the General Convention to the General Synod (the preferred name in England for a church assembly) made it likely that members of the joint committee were aware of the English efforts.10  As their work drew to a close in 1904 members of the committee would have become aware of another canonical effort; in that year Pope Pius X would call for a “collecting the laws of the universal church, in a clear and concise order, and adapting them to the conditions of our time.”  Pius’s call would lead to a collection and reformulation of the Roman Catholic canons, which would be completed in 1914 and promulgated in 1917.

After some initial efforts, the joint committee prepared a revised constitution, which was adopted by the General Convention on second reading in 1901. The joint committee met for three more years and submitted its final report on the revision of the canons in 1904.

Some of the committee’s ideas for revising the Constitution and Canons were adopted.  Among the idea that General Convention approved were expanding the constitution with material previously in the canons, increasing the complexity of the church’s court system, adding the first canon on the work of vestries, and reworking the canons for missionary dioceses.

Other proposals would not be fully implemented until the following decade.  This was the case with the proposal to create provinces; General Convention included an article in the constitution of 1901 allowing for the provinces, but did not adopt enabling canons until 1913.  It was also the case with the proposal made in 1901 that the position of presiding bishop be made elective rather than based on seniority by date of consecration.  The proposal, rejected in 1901 would not be adopted until 1919.

Still other proposal for change, such as canonical provisions to create a national court of review that was allowed in the revised Constitution of 1901 or the creation of a more proportional form of representation, would never be acted upon.

The joint committee issued its final report in 1904.  The committee had not been successful in all of its proposals, but it had served long and hard.  Eugene Augustus Hoffman, who was the Dean of the General Theological Seminary, secretary of the joint committee, and a leading force in its work, had died in 1902.12  The committee was not reappointed.  Individual members of the convention would continue to submit proposed canonical changes, but without the joint committee the effort to overhaul the canons slowed.

The revisions of 1901-04 modified some of the innovations of the Constitutions and Canons of 1789.  In contrast to the English canons of 1603-04, which said a great deal about church discipline, the documents of 1789 had been silent on the composition of diocesan courts and had made no provision for national courts of review.13  The Generals Conventions of 1901 and 1904 would specify the composition of courts, provide for provincial courts of review, and allow for the possibility of an “ultimate Court of Appeal, solely for the review of the determination of any Court of Review on questions of Doctrine, Faith, or Worship.”14  The Constitutions and Canons of 1789 had been silent (with the exception “incidental” references to the Standing Committee in several canons) on lay leadership, a topic about which the English canons had more to say.15  The revised Constitution and Canons of 1901-04, with its new canon on vestries, its reworking of the material on Standing Committees, its expansion of a canon on “Regulations Respecting the laity,” and its rewriting of a canon on lay readers that had been first introduced in 1871, attempted to fill that silence.

The second stage of early twentieth-century revision took place in the period from 1916 to 1919.  Business practice may have led Episcopalians at the beginning of the century to propose a revision of canons; a new circumstance—the First World War—reinforced the value of unified action and centralized leadership.  The General Convention of 1916 adopted canons that provided for uniform financial practices (Canon 50, Of Business Methods in Church Affairs) and a clergy pensions (Canon 56, Of the Church Pension Fund).

The General Conventions of 1916 and 1919 also made a major change in the form of national leadership of the church.  The proposal to amend the constitution to make the office of presiding bishop elective, which had failed in 1904, was approve in 1916 and 1919.18  Another amendment to the constitution approved by the two successive conventions allowed a bishop elected “to an office created by the General Convention” to retain seat and voice at General Convention.  New canon 60 of 1919 created a centralized governing structure (the Council, renamed the National Council in 1922) that replaced the maze of overlapping volunteer bodies by which the church had operated to that point.  The 1919 Convention also adopted the Nation-wide Campaign, a fund-raising effort that create national and diocesan endowments and effectively marked the end of the pew-rent system.  With very few exceptions, annual financial pledges to Episcopal congregations would replace the older system of renting church seating.

Edwin Augustine White had been one of the “jurists and canonists” of whom the joint committee of earlier in the century had taken note.  By 1919, he was a venerated senior scholar of the Church and the chair of the House of Deputies’ committee on Canons.20  The convention in that year called for the creation of a definitive commentary on the Constitution and Canons.21  White became the author of that commentary, which appeared in 1924.  In that commentary, he identified the decision to create a National Council that worked with the Presiding Bishop as one of the most significant decisions made in the history of Episcopal canon law.

Canon 60 of 1919 [on the National Council], with the amendments made by the Convention of 1922, undoubtedly marks a greater change in the polity of the American Church than any other Canon ever enacted by General Convention, and is one of the greatest pieces of constructive legislation, if not the greatest, ever enacted by the body since the first General Convention of 1789.

The American Nation and the American Church both began their national life at precisely the same time.  In the beginning, one was a Confederation of independent Sates, and the other, to some extent, a Confederation of independent Dioceses.  In both cases, there was a strong opposition to any form of centralized government.  In each case, there was as little of executive authority provided for as conditions would permit.  But the parallel between the Nation and Church ceases soon after the beginning of each.  Gradually, there was either granted to the executive branch of the National Government, or else assumed by it, additional power and authority, until, today, we have one of the strongest forms of centralized government in the world.  But the Church did not keep pace with the Nation in this matter.  The Church began her National life with practically no executive head, and with no central governing power, save only General Convention, meeting once in three years, and whose functions were chiefly legislative, not executive.

As she began, so she continued in great measure for one hundred and thirty years, until the General Convention of 1919, when in one fell swoop she discarded all her past traditions in the matter of executive government, and by the enactment of Canon 60, erected a strong form of centralized government.  To one central body the Church committed the administration of her work, giving to the Presiding Bishop and the National Council, as now named, not only the performance of such work as the General Convention may commit to that body, but also the power to initiate and develop such new work as it may deem necessary.

The creation of the National Council and the provision for the election of the Presiding Bishop added an element that the joint committee at the start of the century had desired but had been unable to attain.  The more modern, centralized, business-like church structure that they had created now had a stronger executive power.

Edwin Augustine White’s comment about the sweeping effect of Canon 60 posed a question that is currently being adjudicated in the secular court system.23  The second stage of early 20th century revision had been primarily canonical, rather than constitutional.  General Convention created a more centralized leadership with the adoption of Canon 60, but it did not make corresponding changes in the constitution.  The potential for conflict between diocesan and national authority, which had been a feature of the Constitution of 1789 and had not been significantly changed in 1901, remained.

Paradoxically, the 1916-19 revision of the canons to give the Episcopal Church a centralized leadership more typical of the U.S. Federal government, also brought the Episcopal Church more in line with the other provinces of the Anglican Communion, for it introduced an administrative arch-episcopal power—though not a pastoral one–of the sort that had been omitted in 1789.

A semi-official publication of the Episcopal Church took note of the shift in the power of the presiding bishop.    The Living Church Annual & Churchman’s Almanac used the title of “Rt. Rev” (the title of a bishop) of the presiding bishop through 1919 and listed him as the chairman of the House of Bishops.  Beginning in 1920 it switched to “the Most Rev.” (the designation for an Archbishop) and listed him as Presiding Bishop of the Episcopal Church.

Edwin Augustine White’s 1924 commentary on the canons had an underlying theme that also stressed the relationship of the Episcopal Church to the Church of England.  As he had explained in his Church Law (1898),  Edwin Augustine White believed that “the English Ecclesiastical law in force at the time of the colonization of America, so far as it is applicable to our condition and circumstances, and not superseded by enactments of our own, [forms] the Common Law of the Church in the United States.”26  The movement toward greater conformity with English canon law was thus two-fold: it involved both the creation of a more centralized executive, which had been lacking in the 1789 Constitution and Canons, and the propagation of a theory (through the adoption of a text on the canons by an author with a particular point of view) of the continuing applicability of English Canon Law.

The Church in a Big World

The third period of change was in the mid 1960s, and was the result of a shift in the global character of Anglicanism.  In August of 1963 the Anglican Congress (an occasional unofficial gathering of Anglican clergy and laity) met in Toronto.  Roughly a thousand delegates attended from throughout the Anglican world.27  Many came from churches in newly independent or soon-to-be independent former British colonies in Africa and Asia.  The official report of the gathering, titled Mutual Responsibility and Interdependence in the Body of Christ, noted this broad constituency and commented that

In our time the Anglican Communion has come of age.  Our professed nature as a world-wide fellowship of national and regional churches has suddenly become a reality—all but ten of the 350 Anglican dioceses are now included in self-governing churches, of one blood with their own self-governing regions and peoples.  The full communion in Christ which has been our traditional tie has suddenly taken on a totally new dimension.

The report when on to cite “three central truths at the heart of our faith.” The third was the conviction that “the time has fully come when this unity and interdependence must find a completely new level of expression and corporate obedience.”29  That new level involved both a change in vision about mission (cooperative ventures replaced an earlier colonial pattern in which sending nations decided what needed to be done and where) and a reconfiguring of structure of the Anglican Communion that was already in process when the Anglican Congress met.

The Lambeth Conference (a gathering of Anglican bishops world-wide once each decade) had created the Advisory Council on Missionary Strategy in 1948 and the Lambeth Consultative Body in 1958.30  Both bodies met at the time of the Toronto Anglican Congress.  Both bodies were composed primarily of archbishops or presiding bishops.31 The developed world was more heavily represented than what were then being called “the young churches” of the Southern Hemisphere.    The Lambeth Consultative Body, for example, had 5 seats for the British Isles, and one each for the US, Canada, Australia, and New Zealand, but only 3 for all of Africa.32  At the Lambeth Conference following the Toronto meeting, both of these bodies were replaced by the Anglican Consultative Council (ACC) with a wider representation that included lay persons and priests or deacons, as well as bishops.  The Episcopal Church was one of six national churches or provinces entitled to 3 seats on the ACC.  Lambeth 1968 drafted a constitution for the ACC and asked provinces of the Anglican Communion to approve it.

The creation of this body required no canonical change in the Episcopal Church’s Constitution and Canons, but it did have implications nonetheless, for someone needed to appoint the three representatives to the ACC, and someone needed to respond to the request for approval of the ACC’s constitution.  The special session of the General Convention in 1969 “acceded and subscribed to the Proposed Constitution of the said Anglican Consultative Council,” and took responsibility for election of representatives to that body.34  Subsequent General Conventions approved later changes in the ACC constitution.35  The convention’s Joint Committee on Nominations initially proposed names of ACC representatives for election by convention, but in 1982 the Executive Council (the name adopted in 1967 for what had been called the National Council since 1922) took over the responsibility for selection of ACC representatives.

An additional development in the Anglican Communion had taken place in 1960, which would also bring the Episcopal Church into closer relationship with the Anglican Communion.  In that year Stephen Bayne, former Bishop of Olympia in the U.S., had accepted a position as the first Executive Officer or the Anglican Communion, a position later renamed as “Secretary General.”   Bayne served until 1964.  The fourth person to hold the position (Samuel Van Culin, Secretary General,1983-94), was also an American.

The General Conventions of 1964 and 1967 responded to the call of the Anglican Congress in Toronto that it was time for “the rebirth of the Anglican Communion, which means the death of many old things but—infinitely more—the birth of entirely new relationships.”37  The Presiding Bishop set up a Committee on Mutual Responsibility, which reported to both conventions.  The 1964 Convention adopted a resolution proposed by the committee that resolved

That this Church, speaking through its episcopate and its duly elected representative in the lay and clerical orders in General Convention assembled, accept the message of the Primates and Metropolitans of the Anglican Communion entitled, “Mutual Responsibility and Interdependence in the Body of Christ”, as a declaration of God’s judgment upon our insularity, complacency, and defective obedience to Mission; and be it further

Resolved, the House of Deputies concurring, That this Church undertake without delay that evaluation and reformation of our corporate life, our priorities, and our response to Mission, which is called for by the leaders of the Anglican Communion….

The General Convention made an important change in the Constitution and Canons at the 1964 Convention, which was then confirmed in the convention of 1967.  The General Convention completely rewrote the Preamble of the Constitution in order to reflect the Episcopal Church’s place within the growing Anglican Communion.  While not a direct proposal from the MRI committee, it did reflect the goals and values of the Toronto gathering.  The new preface read:

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), is a constituent members of the Anglican Communion, a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and Regional Church in communion with the See of Canterbury, upholding and propagating the historical Faith and Order as set forth in the  Book of Common Prayer.

The 1967 General Convention also expanded the role of the Presiding Bishop in a rewritten Canon 2, section 4.  The Presiding Bishops was thereafter identified as “the Chief Pastor” of the Church and given the responsibility to visit every diocese of the church, that is to say, that the pastoral element of ministry of an archbishop that was lacking in the 1919 creation of a central executive was now added.

An unsuccessful attempt was made at the 1967 General Convention to also append the title “Archbishop” to the description of the role of the Presiding Bishops, but moves in the direction of treating the presiding Bishop more like the Archbishops in other provinces did meet success in the following two decades.  The Book of Common Prayer of 1979 included for the first time mandatory prayers for the Presiding Bishop within the Prayers of the People in the Eucharist.  The 1982 General Convention amended Canon 2, section 4 to note that the Presiding Bishops was a “primate.”41  The editors of the General Convention Journal for that year finally followed the practice that the Living Church has adopted in the 1920s and began to style the Presiding Bishop as the Most Reverend, the designation reserved for Archbishops.

The Commission on Structure that recommended the change in the description of the office of the presiding bishop in 1967 summed up the direction of changes of that decade by referring back to the Anglican Congress in Toronto and its doctrine of Mutual Responsibility and Interdependence:

A clarifying understanding is now discernible through the Church.  This is that the initial five-year period referred to in the Document [Mutual Responsibility and Interdependence in the Body of Christ] (1963-68) is now generally recognized for what it was intended to be: a time of transition within the Anglican Communion when our widely separate paths would come closer together; a time when we would be developing new patterns of relationship; a time when we would see ourselves growing from a fellowship of Churches to a fellowship within the Church of God; a time of emergency when new assistance must be transmitted to the younger Churches.”

Changes in this period were not so much an attempt to conform the U.S. to an English pattern as they were a participation in a rethinking of the whole idea of an Anglican Communion.

Concluding Thoughts

We have looked at three moments in the history of Episcopal Canon law: the initial effort to create a Constitution and Canons following the American Revolution, the attempt in the years before and after World War I to create a more comprehensive system of church law and a more modernized and centralized executive, and the effort in the 1960s to recognize the international character of the Anglican Communion.

It is always dangerous to speak about a movement or trajectory to history, so please take what I am going to say with appropriate skepticism.  I think that what we have seen is a movement away from an early minimalist view of authority to a more comprehensive form of government that is both more centralized in the U.S. and more involved in the Anglican Communion.

One of the interesting things about the current moment in the Episcopal Church is that the two movements that have long gone side by side—more centralized authority in the U.S. and deeper relationship with other Anglican church—seem now to be set at odds against one another.

pdf version with footnotes available for download here

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

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

I think there are several things they would see that are surprising, even counter-intuitive, and today I am going to talk about five of these—five things the courts would see if they went back to the books and took a fresh look.

1. First, TEC is organized legally as a voluntary association of dioceses.

I want to break this point down into two parts: first, a voluntary association; and second, an association whose members are dioceses.

To begin, all sides of the current disputes agree that TEC is what the law has traditionally called a “voluntary association.” This kind of entity is sometimes referred to today as an unincorporated nonprofit association, but voluntary association is the traditional terminology. So, from a civil law perspective, that puts us immediately into the category of association law, which is different in important ways from that governing other forms of organization.

A church does not have to be an association. The Southern Baptist Convention—a church named by the way for its convention; TEC is named for the office of bishop—is a Georgia corporation. And after American independence, the largest of the state churches in the former colonies, the one in Virginia, was incorporated in that state by the Virginia legislature. But TEC itself has always been and remains a voluntary association. Everyone agrees.

This leads us to the question, “what are the essential legal characteristics of voluntary associations, the things that distinguish them from other forms of organization”? And the answer is “they’re not what they used to be.” Until fairly recently, the law did not recognize a voluntary association as a legal entity distinct from its members. In other words, when the law looked at a voluntary association, it only saw the members; the association itself was simply an aggregate of its members. The legal status of associations at the time TEC was organized is reflected in a case that arose ten years later in England. An association of Freemasons brought suit to recover some of its property, but the judge would not hear its claim. The judge, one of England’s law lords, concluded it was “singular that this Court should sit upon the concerns of an association, which in law has no existence.” (Emphasis added.) The suit could only be brought by the individual members of the association.

This rule was changed in the twentieth century in most, but not all states, typically by statute. Most states now recognize voluntary associations as legal entities and allow them to own property, enter into contracts, sue in their own names and enjoy the rights and responsibilities of legal personality. But that was not formerly the case.

This brings us to the second part of this first point. If traditionally members were the legally cognizable element of a voluntary association, who its members are becomes of paramount importance in understanding the legal structure of the association. Associations can be associations of individuals, of corporations or even other associations. You are all familiar with the NCAA, which is an association of colleges and universities. And trade associations, which typically have multi-national corporations as their members. And there is even an association of trade associations.

So, who are the members of the voluntary association that is TEC? We answer this question by looking at TEC’s governing agreement, its constitution. The constitution specifies quite clearly that the entities that join TEC are dioceses. A parish cannot join General Convention and show up for meetings, nor can an individual. Only dioceses. And it is the several dioceses that are entitled to representation at General Convention. That is stated in the constitution and is also reflected in the way important matters are voted on in the House of Deputies. They vote “by orders,” which means that each diocese gets one vote when the lay order votes and one vote when the clergy vote. At the General Convention just concluded in Anaheim, the two controversial resolutions were both voted on by orders. That is why when you read the results of the votes, they were given as, e.g., 78 yes. There were over four hundred deputies in each order, but the votes were not 290 yes to 150 no. They were 78 yes, 22 no and 8 divided. This reflects the number of dioceses present and voting, not the number of people.

Legally, the conclusion that the members of the association comprising TEC are its dioceses has significant consequences. I will return to this later. But first, a bit more about association law. It is a foundational principle of association law—constitutional in fact—that associations can order their governance however they choose. So, given that the members of the TEC association are the dioceses and the law says the members can organize themselves however they see fit, how does TEC governance work? The first hint is something I have already said: the founders of TEC chose a form of organization that was not at that time recognizable as a legal entity apart from its members. And we still see that basic concept today when we look at the governing principles in TEC’s constitution. We find there a recognition of several bodies and offices. There is a General Convention, but there are also diocesan conventions. There are bishops, and there are other entities and offices as well. But to ask the question posed in the title of this conference: “who’s in charge?” And this leads to the second point that the courts would notice if they were to lose their nerve and look afresh at the law and the facts.

2. TEC’s constitution does not have a Supremacy Clause making any of these bodies the supreme or highest authority.

What is not defined in TEC’s constitution is any legal or hierarchical relationship among the various bodies and offices it creates or whose pre-existence it recognizes. Indeed, TEC’s constitution is devoid of the legal terminology used to express hierarchies in legal documents. None of the following terms routinely used in legal documents to indicate hierarchical priority is found at all in the constitution: “supreme”; “supremacy”; “highest”; “hierarchical”; “subordinate”; “sole”; “preempt”; “final”; and “contrary”. Other terms used to indicate hierarchical relationships, including “exclusive”, “subject to”, “consent”, “notwithstanding”, and “inconsistent” are found in the constitution, but they are not used to indicate a central hierarchy.

What we find instead when we look at the various bodies and offices and governing principles in TEC’s constitution is overlapping jurisdiction—we call it concurrent jurisdiction in the law. And it is not as odd as it might seem at first glance. Indeed, it is common. The Congress and state legislatures frequently legislate on the same things and many court cases could be filed in either the state court or the federal court. And on a more practical level, this concept of overlapping authority is familiar to everyone through property law. We all have or understand joint bank accounts, and we know that any owner of the account can draw on the entire account. Any partner can bind a partnership; both a principal and its agent can bind the principal. In fact, this notion of concurrent authority has a very ancient pedigree. Think of the Roman republic and its two consuls who shared authority to guard against monarchy. This was so ingrained in Roman law and culture that even in the Roman Empire, the office of consul remained and the emperor often appointed himself and a family member as the two consuls.

But in the case of concurrent legislative jurisdiction the question quickly arises as to which legislature has priority. This is a question to which the law gives two answers: there is a traditional or default rule of priority; and a special rule. The traditional rule, going back to the Romans if not before, is called the “last in time” rule. The last legislature to speak prevails.

To take only one example here, you may not realize that there are actually two lawmaking bodies in the federal government. One, Congress, you all know. The other is the President acting in international matters with the concurrence of two thirds of the Senate. This kind of law is called a treaty, and the constitution provides that both statutes and treaties are the “law of the land” and gives no priority to either type. Occasionally, a treaty will be inconsistent with a statute and in this case the courts apply the last in time rule. Whichever was later, statute or treaty, prevails.

But another rule of priority developed in the law to change the last in time rule. This is a rule that gives priority to a legislative body based not on temporal sequence, but on identity. And for centuries this priority has been expressed legally in a very precise way, through the language of “supremacy.” The oldest law code now in use, the Code of Canon Law of the Roman Catholic Church, uses this language. One need only look at the Table of Contents to see the chapter entitled “The Hierarchical Constitution of the Church,” section I of which is “The Supreme Authority of the Church.” The first canon in this chapter specifies that the Pope possesses “supreme ordinary power in the Church.”  Note the subtlety!

Not surprisingly, at the time of the English Reformation, when the Church of England broke with Rome, this break was expressed legally in the “Supremacy Act,” which made the British monarch the “supreme governor” of the Church of England. All clergy and government officials had to swear an “oath of supremacy” recognizing the king as the supreme governor. It is still required of bishops in the Church of England.

And to take a final example, the reason state legislatures cannot take advantage of the “last in time” rule to overturn or nullify a federal statute is that there is a “Supremacy Clause” in the constitution that makes federal law “the supreme law of the land.” And the reason the state courts cannot overrule the Supreme Court is that the constitution expressly makes the Supreme Court the supreme court. Go back and read the constitution. It does not create a court with the name, “the United States Supreme Court.” It says instead that “the judicial power of the United States shall be vested in one supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” The Supreme Court took its name from its constitutionally specified hierarchical authority.

And the reason there is no priority between Congressional statutes and treaties is that there is no language of supremacy in the constitution giving one priority over the other; they are on a par.

Similarly, in TEC’s constitution there is no language of supremacy or any of its synonyms, such as “highest” or “hierarchical.” The closest the TEC constitution comes to this concept is in the provision making the Bishop and standing committee “the Ecclesiastical Authority” in the diocese. If the bishop is “the” ecclesiastical authority in the diocese, the Presiding Bishop, the General Convention and the Executive Council are not.

So in TEC we have concurrent jurisdiction without supremacy among the General Convention and the various diocesan conventions, and each can theoretically undo what the other has done. But is this any way to run a church?  Was this an inadvertent oversight by TEC’s founders, who did not understand these legal concepts clearly enough to express them properly? This leads to my third main point.

3. This omission of the concept of supremacy or hierarchy was intentional on the part of TEC’s founders, who were uniquely familiar with these concepts.

Let me begin by pointing to the role played in the formation of TEC by two well-known New York lawyers, James Duane and John Jay. Duane was a signatory to the Articles of Confederation on behalf of New York and was the first mayor of New York after the Revolutionary War and the first federal judge in New York. John Jay was the United States Secretary for Foreign Affairs during the Confederation and was later the first Chief Justice of the United States Supreme Court. Both men are noted to this day among legal scholars for their roles in developing the jurisprudence of hierarchy subsequently used in the United States Constitution, including the Supremacy Clause. I don’t have time to elaborate the legal work for which they are known, but if you do legal research on the Supremacy Clause or the “last in time” rule you will find major law review articles just in the past decade on their importance to the development of this jurisprudence. And what these legal scholars don’t mention at all is that Duane and Jay were simultaneously designing TEC’s polity and drafting its first constitution!

Sitting as judge in 1784, Duane ruled in a well-known case still studied by legal scholars that the absence of a routine technical term indicating hierarchical priority substantially eviscerated a New York statute purporting to nullify part of the peace treaty that ended the Revolutionary War. Six weeks later Duane was a delegate to the first interstate convention that established the fundamental principles of what was to become the constitution of The Episcopal Church.  The first of these principles was the very language, that “there be a general convention,” that remains to this day the only specification of the authority of General Convention.  Duane was again a delegate to the General Convention in 1785, one of only two from New York, and served on the committee that drafted the first constitution. That constitution, the key language of which remains virtually unchanged in the current constitution, contained no language giving hierarchical priority to the General Convention. Duane was once again a delegate to the 1786 Convention that revised the draft constitution.

Jay is known among legal scholars for his work in drafting the hierarchical legal language that resolved the treaty nullification controversy with Great Britain and that became the prototype for the Supremacy Clause in the United States Constitution, the primary provision establishing the hierarchy of the federal government in our federal system. Right in the middle of this work on the treaty controversy, Jay was a delegate to the General Convention in June 1786.  It was this Convention that amended and then approved the constitution drafted the year before containing no language giving hierarchical priority to the General Convention or any central body. Although Jay arrived late, after the constitution had been approved, he had to have been aware of the terms of the constitution since the draft was a primary item on the agenda.  After his arrival, Jay took a leading role in drafting a key letter to the Archbishop of Canterbury from the Convention.  He did not attend the adjourned session of the Convention in October 1786, undoubtedly because it occurred just as he was delivering his report to Congress with his proposed solution to the treaty crisis, including resolutions containing the legal language that would later be incorporated into the Supremacy Clause of the United States Constitution.

It is inconceivable that these two knowledgeable lawyers, known to this day for their role in developing our jurisprudence concerning legal hierarchy, would have inadvertently drafted a TEC constitution devoid of hierarchical language.

Indeed, there is conclusive proof that this omission of a central hierarchy was intentional, not inadvertent.  The primary imperative driving the Anglican churches in America to break formally with the Church of England was the Oath of Supremacy that all prospective bishops and clergy were required to swear.  It was the paradigm of legal language recognizing a hierarchical body: allegiance was pledged to the British monarch as the “only supreme governor” of the church.  American clergy were both unwilling and unable to give this oath.  One of the main tasks of the early General Conventions was to obtain the agreement of the Church of England bishops to consecrate American bishops without this oath.  James Duane was on the committee that developed a plan to achieve this objective, and he was the one who presented it to the General Convention.  Between October 1785 and October 1786, no fewer than six letters were exchanged between the General Convention and the English bishops on this topic.  Both Duane and Jay played major roles in drafting this correspondence.  The agreement reached was that the Oaths of Supremacy and Allegiance to the monarch and the Oath of Due Obedience to the Archbishop would be replaced for American bishops by the recital “I do solemnly engage to conform to the doctrine and worship of the Protestant Episcopal Church….”  In other words, submission to a hierarchy, the monarch and the archbishop, was explicitly replaced not by submission to a different hierarchy, but by a pledge of doctrinal conformity.

This brings me to my fourth point.

4. TEC’s ordination vows do not establish or recognize a central hierarchy.

Those who allege the supremacy of General Convention in TEC often point to the episcopal ordination vows for support, but we can quickly see that those vows offer no such support. Apparently these advocates have never compared TEC’s vows to a truly hierarchical oath. I have already mentioned the oaths of supremacy and due obedience given by Church of England bishops. And Roman Catholic bishops vow to be obedient and remain under the authority of the successor to Peter. But I also want to emphasize the oath used by the Serbian Orthodox Church because that oath, expressly designated an “Episcopal-Hierarchical Oath,” was part of what the United States Supreme Court relied on in its most important case on religious hierarchy. In this oath, Serbian Orthodox bishops swear that they will “always be obedient to the Most Holy Assembly,” which is the very body identified in that church’s constitution as “the highest hierarchical body.”  Again, note the subtlety!

One can see at a glance that TEC’s vows are the exact opposite of these hierarchical oaths. In the Examination of the TEC episcopal candidate there is no mention of General Convention, the Presiding Bishop or the Executive Council.  The Presiding Bishop is mentioned in the rubrics only as presider, but this role can be and is assigned to another bishop. Indeed, the TEC candidate is presented for consecration as “bishop in the one, holy catholic, and apostolic Church” and later as “bishop of the Church of God to serve in the Diocese of N.” The Examination of the candidate begins by emphasizing that “with your fellow bishops you will share in the leadership of the Church throughout the world.”  Note: “fellow bishops”; “Church throughout the world.” There is no mention of General Convention.  There is no vow of obedience to the Presiding Bishop as there is to the Archbishops or Pope or Holy Assembly in the oaths of the other churches.

And the actual vow is simply one of conformity: “I do solemnly engage to conform to the doctrine, discipline, and worship of The Episcopal Church.” So, what is the discipline or polity to which the bishops vow to conform? The Examination points to it: to share with “fellow bishops” in the government of the “Church throughout the world,” the “Church of God,” the “one, holy, catholic, and apostolic Church”.  These vows thus suggest a truly episcopal church, not one in which a provincial convention is the supreme authority. Indeed, it would be surprising if the General Convention were to be the highest authority when the episcopal ordination vows do not mention General Convention at all.

Now to my final point.

5. The requirement that dioceses joining TEC accede to the constitution and canons does not supply the central hierarchy that is elsewhere unspecified.

Those litigating in the name of TEC attempt to avoid the consequences of the legal realities represented by the principles I have described up to now by claiming that the concept of “unqualified accession” provides the hierarchy that is otherwise missing. But the concept of accession cannot carry this legal burden. For one thing, this is like the matter of the ordination vows just addressed. Those who argue that TEC’s constitution specifies a central hierarchy will say that new dioceses accede irrevocably to that hierarchy.  But those who argue that TEC’s constitution specifies a voluntary association of autonomous dioceses will say that the joining dioceses accede to that form of governance. The concept of accession, in other words, adds nothing.

My time is almost up, so I will make just three observations about accession.

First, the term itself is an unusual technical term from international law that is used to describe the act of a sovereign state becoming a party to a treaty already signed by others.  A treaty, of course, is a compact among sovereign and independent states. “Acceding” was the term used in the Articles of Confederation, which established a “league of friendship” of states retaining their “sovereignty, freedom and independence.” That term is not used in the United States Constitution, which established a hierarchical central government. This use of treaty language could not have been accidental. James Duane was a signatory to the Articles of Confederation; John Jay, besides being the nation’s Foreign Secretary and Chief Justice, negotiated the second treaty with Great Britain, known to this day as the “Jay Treaty.” These men clearly knew what the term “acceding” signified.

Treaties are typically subject to termination.  The vast majority of them are explicitly terminable, and the ones foremost in the minds of TEC’s founders, the Treaty of Peace with Great Britain and the Articles of Confederation, were being abrogated or nullified just as TEC’s constitution was being drafted and ratified.  If TEC’s founders had intended to signal irrevocable submission to a central hierarchy, they would not have borrowed a term from the Articles of Confederation that lacked such a hierarchy and that had just been abrogated by the thirteen states.

Second, many dioceses do not have an accession clause at all in their diocesan constitutions and those that do have accessions that vary widely in their terms. Allan Haley has compiled this information and analyzed it on his “Anglican Curmudgeon” blog in an article published in January of this year entitled “ECUSA Hierarchy R.I.P.” These absent and sundry accessions thus actually work against TEC’s claims to hierarchical authority because they are exactly the kind of variety one would expect of voluntary submission by autonomous dioceses.

Third, the law of associations is clear that members can withdraw from associations absent restrictions in the governing agreement. The Supreme Court has recognized this and it is stated explicitly in the uniform statute on associations, which was drafted by the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association. Significantly, moreover, the Law Commissioners note the following in their commentary on the statutory language:  “[p]reventing a member from voluntarily withdrawing from a UNA [unincorporated nonprofit association] would be unconstitutional and void on public policy grounds.”  This is a terse reference to a body of law recognizing that freedom of association is a constitutional right, and the state, including its courts, can neither preclude nor compel association. In other words, what the Law Commissioners are opining is that even if the TEC constitution said explicitly that a diocese cannot withdraw (which it does not), courts could not enforce such a provision on a voluntary association because to do so would be unconstitutional. [This is actually a new development since my original paper and this discussion is based on an important paper by Mike Watson entitled “Litigation against Disaffiliating Dioceses” published by ACI in September 2009.]

I started by saying I wanted to indicate what the courts would find if they went back to the books.  Let me end by quoting two recent court decisions that have attempted to explain TEC polity. First, a few years ago, the United States Court of Appeals, in Dixon v. Edwards, put it this way: “Episcopalism (sic) is said to mean ‘the theory that in church government supreme authority resides in a body of bishops and not in any one individual.’” Notwithstanding this conclusion the court then found in the dispute before it between a parish and the diocese that the bishop was “the highest ecclesiastical authority.”

Then last year in Colorado Springs the court tried to explain it this way.  The judge noted that a key document signed in 1929 “was created in large part in response [to] various controversies between Episcopal Dioceses and their parishes throughout the country. As a result of these controversies, the Bishop of the national church feared that real property could be used without the consent of the local Bishop” Then later in the opinion: “Even though the board that recommends changes to canons is made up of representatives from the individual parishes, the canons are still ultimately imposed upon individual parishes from the hierarchy of bishops.”

I suspect one thing people on all sides of current disputes would agree on is that these two courts do not fully understand TEC polity! I hope at some point a court will go back to the books, start over and get it right.

Finally, I want to close with a quote from Bishop William White, the founding architect and long-time Presiding Bishop of TEC. He was deeply unhappy with a decision by the first General Convention after TEC was organized to deviate from the Church of England’s Book of Common Prayer in the Apostle’s Creed. He expressed this in a letter to his fellow bishop, Samuel Seabury written in December 1789. I am quoting here from Clara Loveland’s seminal book on the founding of TEC:

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

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

In his own words: the authority of General Convention from the architect of TEC’s polity.

I owe it to my readers to provide an explanation of a puzzling title.  What does a discussion of “communion, order, and dissent” have to do with the well-known and well-loved children’s story of Puss and Boots?  Remember, in the story, the hero can only reach his goal if he listens to a despised cat that he must take as his companion on the way.  It would seem that the point of the story is that attention must be given to what we might otherwise despise if we are to succeed in our more “high flown” endeavors.

My point is that hierarchy, the subject of this conference, is an aspect of church order, and both have become something like the cat in Puss and Boots.  We cannot reach our more noble goals without these unwelcome sources of help. Nevertheless, for some years we have neglected these despised companions, and as a result our church and our communion are in a terrible mess. Indeed, our seminaries do little or nothing to introduce future clergy to the importance of church polity.  I remember when I was in seminary the arguments about church order that so engaged the Reformers were mentioned, but only in passing.  Polity, we were told, is a subject we ought to “bone up on” because there would be polity questions on our General Ordination Exams.  The message was clear.  Hierarchy and order are not very important subjects. Yet, here we are at the beginning of the 21st Century faced with fiercely debated polity issues.  The debate centers on the communion wide challenge of an Anglican Covenant and on a domestic legal battle over the meaning of the constitution and canons of The Episcopal Church (TEC).  The former challenge might produce a divided communion and/or result in TEC becoming a second track form of Anglicanism.  The latter might produce a change in our constitution effected by a secular court rather than constitutionally mandated procedures.

It is high time we look once more at these despised companions and give them the attention they deserve. The simple fact is that neither the Anglican Communion nor TEC can remain catholic expressions of Christian belief and practice unless church order is accorded the significance that rightfully belongs to it.  I can provide a simple example.  Can you imagine Plato, Aristotle, Hobbes, John Locke or John Rawls writing a political philosophy that said nothing about the form of governance best suited to reach the social, economic and political goals they believe life in society should support?  Yet we are daily provided with accounts of the life and mission of the church that are utterly silent on the matter of church governance.

II

My purpose in this essay is to play the role of the wretched cat “Polity” and ask afresh why we have a form of church governance in the first place, what form is best for it to take, and what to do when conscience prevents us from living according to the dictates of those in authority over us. I think a simple statement is the best way to begin.  The form of governance adopted by a church (or for that matter any society) is not the result of social cause followed by social effect.  Neither is it merely a practical and morally indifferent arrangement for ordering every day life.  When we enter a form of polity we enter the realm of freedom rather than necessity.  We enter a realm of human goals and aspirations rather than one of mere efficiencies.  To put the matter more directly, when we look at a form of governance, be it of a church or a commonwealth, we look at a means of pursuing certain human ends rather than others.

For John Locke, the end of government was the protection of life, liberty, and property.  For Thomas Jefferson the end of government was the guarantee of life, liberty and the pursuit of happiness.  There is a big difference between the protection of property and the pursuit of happiness, and this difference produces concomitant differences in the form of governance thought apposite for the pursuit of these varying ends.

Now, if we take this point and ask how it applies to the Anglican Communion and to The Episcopal Church we will be forced to say that church polity is not an indifferent matter.  Church polity is part of an adequate account of the doctrine of the church.  Church polity is tied directly to theology.  It is requisite for a church, therefore, to ask if its form of governance in fact accords with and supports its nature as a divinely founded society whose ends and way of life are properly divinely ordered.

I do not mean to suggest by this statement that there is but one form of governance that accords with the divine foundation or ordering of the church.  I am neither a Mennonite, a Presbyterian nor a Roman Catholic.  I do mean to say, however, that church order is a theological matter.  It is more than a practical arrangement.  It is not one that, from a theological perspective, is utterly indifferent. By implication, I am led to say that, within the United States, because of the constitutionally mandated separation between church and state, issues concerning the meaning and adequacy of the constitution of a church do not rightly fall under the jurisdiction of a secular court.  The meaning and adequacy of ecclesial order, to the extent that order differs from any other, are in part theological questions that concern the goals and form of life thought proper for a society whose foundation and form of life rest in a particular understanding of divine nature and providence.  Indeed, the complexities of church order and hierarchy are so closely tied to differences in theology that one cannot speak of one without comment on the other.

I will leave it to the lawyers among us to sort out the adequacy of my interpretation of no establishment and free exercise. Indeed, I hope they will. My goal at the moment, however, is to show how, in the case of the Anglican Communion and The Episcopal Church, theology and polity are connected and how different understandings of the connection map the terrain of our present conflicts.  These are differences the church(s) must sort out for itself (themselves). They are matters of fidelity and obedience to the faith rather than questions for secular courts to adjudicate as aspects of property law.

III

The best place to begin this exercise is with the proposed Anglican Covenant and the various reactions to it.  By its own admission, the proposed covenant is designed to protect and further “communion”. In its “Introduction” the framers of the proposed covenant deploy the theological notion of communion as a means of summarizing the full content of Christian belief and practice.  They intend that it provide the raison d’être for the specific provisions of The Anglican Communion Covenant (TACC), and so insist that, though not a part of TACC per se, it is always to be printed along with the actual text.

The theological question is how communion is to be understood and maintained. There are two answers to this question now before the Communion, and they lead to very different preferences for the sort of order and hierarchy that ought to bind the various churches of the communion together. I will call one understanding of communion, “thick” and the other “thin.”

The “thick” view presents communion as a complex relationship involving not only cooperation and mutual assistance in carrying out a common mission but also rather extensive agreements about both belief and practice.  In support of these agreements, the thick understanding contains within it certain forms of hierarchical relationship and certain procedures. These hierarchies and procedures are designed both to maintain and further common belief and practice and to provide means to address circumstances in which the actions of one or more churches within the Communion are no longer “recognizable” to the others as ones that accord with the shared understandings that bind the churches of the Communion together.   This thick view of communion has found expression in The Virginia Report, The Windsor Report and in the various versions of the proposed covenant that have appeared.

The “thin” view emphasizes mission, mutual hospitality (which includes Eucharistic sharing) and aid rather than common belief and practice.  The issue for those who hold the thin view is not “recognizability”, but concrete, practical forms of interchange that render mutual aid and assistance in carrying out the mission of the church.  That mission is shaped by the particular context in which the various churches of the Communion may find themselves.  Further, Christian belief and practice must find various expressions, each of which speaks meaningfully to a particular context. The advocates of the thin position have a polycentric view of belief, practice, order, and to some extent mission.  In their view, the issue is not so much “recognizability” as it is  “difference” that contributes to the richness of Christian expression and the effectiveness of mission. As a result, advocates of the thin position (as within TEC) may well promote strong forms of local hierarchy but they oppose any form of hierarchy above that of the local church.  In their view, each local church should be free to order its affairs in relation to its own context rather than in relation to “recognizable” forms of doctrine, worship and moral practice.  This view has not found support in the various renditions of the proposed covenant but it has been variously expressed and stoutly defended on progressive blogs and in a range of articles and addresses.

IV

TACC proposes that the churches of the Anglican Communion bind themselves by a thick version of communion.  The issue is how are communion and order related in the proposal now before the churches? The question presents a challenge for supporters of a thick view of communion because Anglican polity has, for theological as well as practical reasons, eschewed any form of centralized jurisdiction that might enforce the sort of thick view of communion they support. The reasons for this eschewal are fourfold.  First, from earliest times English speaking Christians have sought a national expression of Christian belief and practice and have given theological reasons for this focus.   Second, the original break with Rome involved a rejection of what were understood as theological novelties—novelties that were linked to the Papal office.  In fact, the Reformers regarded the Pope as the instrument of Satan.  Similar theological objections to the centralized authority of the Papacy were expressed at the first Lambeth Conference because of the recently announced Marian dogmas and the previous claims to infallibility.  Third, Anglicans tend to place great emphasis on the Doctrine of the Incarnation, and they interpret it in a way that stresses effective adaptation of the message and ministry of the church to local contexts. Fourth, the established position of the Church of England renders a synod superior to that of the C of E a constitutional impossibility.

The question confronting supporters of the thick view of communion is this. How are the churches of the Communion to maintain mutually recognizable forms of belief and practice and yet respect the autonomy of each? The success of TACC depends upon finding an adequate answer to this question. It is my belief that TACC has set the Communion off in a direction that will yield a satisfactory answer, and in doing so its drafters have at long last given polity the attention it deserves.

How so?  It is quite a simple matter to establish the fact that its account of communion is thick and that the purpose of the Covenant is to protect, strengthen and further this thickly defined marker of Anglican identity.  The “Introduction”, which provides the theological foundation for all that follows, insists that all the churches are called, through Christ, into communion with the Triune God.  Through this communion, Christians share in the very life of God that is itself a communion between Father, Son, and Holy Spirit.  The mission of the Anglican Communion is to share with all the churches in calling the peoples of the earth, through Christ, into the life of God, and in doing so to manifest life in communion in the relations of its various provinces one with another.

These relations are thickly described. They give concrete expression first of all to “the catholic and apostolic faith uniquely revealed in Holy Scripture and set forth in the catholic creeds” and to which “the historic formularies of the Church of England bear authentic witness.”   Advocates of the thick position regard these as necessary points of reference when seeking to determine whether or not a given interpretation of Christian belief and practice is “recognizable” as an adequate expression of the faith members of the Communion hold in common.  Though the thick view of communion is not confessional, in contradistinction to the thin version of communion, its advocates regard commonly recognized beliefs and practices to be at the heart of life in communion and so also of the proposed covenant.

So also do certain modes of relationship.  These are given summary expression in the “Introduction” as “Faithfulness, honesty, gentleness, humility, patience forgiveness and love itself, lived out in mutual deference and service among the Church’s people and through its ministries…”  We might say by way of summary that, according to the thick view, communion comprises both shared beliefs and common virtues.  It also involves common ministry, common worship and shared participation in the Church’s mission.   This mission includes proclamation of the good news of reconciliation and redemption in Christ, teaching that forms faithful disciples, and care of those in need.

Now the question, once more, is what order is to protect, sustain, and further this thickly defined form of common life, and in what way, if at all, does it contain a form or forms of hierarchy? At this point we run directly into questions of hierarchy and church order.  The covenant grants a central role to bishops “as guardians and teachers of the faith, as leaders in mission and as a visible sign of unity.”   In this capacity, bishops represent “the universal Church to the local, and the local Church to the universal and the local Churches one to another.”   They do this through a ministry that is “exercised personally, collegially, and within and for the Eucharistic community.”

The Covenant clearly envisions a form of hierarchical Episcopal order at a diocesan, even a provincial level, but not one that overarches the various provinces of the Communion.  Beyond the boundaries of their diocese and/or province, the bishops exercise their function as guardians of the faith “not by central legislative and executive authority, but by mutual loyalty sustained through common counsel of the bishops in conference.”

The only form of inter-provincial hierarchy one can assume at this point is one of “moral authority” on the part of bishops in conference—a form of authority that places the burden of proof on one who dissents but relies upon voluntary compliance for effectiveness.  This assumption has been present since the first Lambeth Conference.   However, to the statement about mutual loyalty sustained through conferral among bishops the proposed covenant adds the mutual loyalty and common counsel of “other instruments of communion.”  These are listed as the Archbishop of Canterbury, the Lambeth Conference, the Anglican Consultative Council and the Primates Meeting.  To promote unity, these instruments have a responsibility “to consult with, respond to, and support each other.”

Clearly, the covenant envisions a process wherein these instruments reach a common mind and once expressed, that common mind is to be given moral authority.  The Instruments thus order by moral suasion and in this process depend upon the moral authority of a common mind located in the Episcopal office.  The moral authority of Bishops in conference constitutes a hierarchy of sorts in that their counsel is due deference.  However, Bishops in council have no political authority as a council beyond the borders of their own diocese or province.  In these realms, they do not have authority to enforce their judgments.

Now another question presents itself.  How is a thick view of communion to be maintained if the moral authority of the instruments is resisted or refused and there are no mechanisms of enforcement?  The answer provided by the proposed covenant is a procedure that can issue in a judgment that either recognizes as fitting a matter some have questioned or concludes that the Communion is indeed faced with a novelty it cannot recognize as part of the common mind and practice that binds the Communion together.

V

The question now becomes does the procedure, as its critics assert, set up a central political authority that has jurisdiction over the various churches of the Communion.  The answer to this question, despite many protestations to the contrary, is most emphatically no.  As I understand it, the procedure works as follows, and though it involves various forms of hierarchy, none of them qualify as a centralized authority with jurisdiction over the various Provinces of the Communion.

When an issue arises concerning “the meaning of the Covenant, or about the compatibility of an action by a covenanting Church with the Covenant” each covenanting Church is committed under provision 3.2 of the Covenant to “have regard for the common good of the Communion in the exercise of its autonomy…to respect the constitutional autonomy of all the Churches of the Anglican Communion while upholding… mutual responsibility and interdependence…” of each Church to the other.  Further the churches are to exercise patience and to spend time in seeking a common mind.  They are as well “to act with diligence, care and caution in respect of any action which may provoke controversy, which by its intensity, substance or extent could threaten the unity of the Communion.”   Finally, in these situations of conflict, the churches are to be willing to participate in mediated conversations.

These are commitments that, as it were, bracket any conflict brought on by an action or interpretation of the meaning of the Covenant that raise the issue of recognition.  It is the duty of The Standing Committee of the Anglican Communion responsible to the Meeting of Primates and the ACC (but, as I understand it a part of neither) to monitor these proceedings.  If a shared mind has not been reached through the above process, the matter in question is to be referred to The Standing Committee.  (Let us call this process one.)  The Standing Committee is then to make every effort to facilitate agreement.   The Standing Committee, may, during the course of these discussions, “request a Church to defer a controversial action.”   If the Church in question declines to do so, The Standing Committee “may recommend to any Instrument of Communion relational consequences.”   These may include provisional limitation or suspension of participation in that Instrument until the completion of a succeeding process.

What process then ensues? (Let us call this process two.)  If it receives advice from the ACC and the Meeting of Primates to do so, The Standing Committee may declare that an action or decision is or would be “incompatible with the covenant.”   Further, on the basis of the advice received from the Instruments in question, The Standing Committee “shall make recommendations as to relational consequences that flow from an action incompatible with the covenant.”   These recommendations, it is important to note, may be addressed to the churches of the Anglican Communion or to the Instruments of Communion, and they may address the extent of impaired communion and the practical consequences of that impairment.  Further, it is important to note, “Each Church or each Instrument shall determine whether or not to accept such recommendations.”

I hope all this is clear. The two processes set out in Section Four of the proposed covenant involve much “toing and froing” between The Standing Committee, the Instruments and the Churches of the Communion.  However, it is simply not the case that the Covenant sets up The Standing Committee as a sort of “court of star chamber” that has central judicial and jurisdictional authority.  The Standing Committee, in cases involving “recognition”, monitors, receives advice, discerns and recommends either to the churches of the Communion or its Instruments or both.  These entities are free in each case either to accept the recommendations or not.

The proposed covenant does not set up a central judiciary or a central form of jurisdiction.  It does, however, involve various forms of hierarchy.  There is first of all an administrative form of hierarchy located in the Instruments and The Standing Committee. It is intended to facilitate discernment on the part of the Communion and its Instruments in cases where there is a problem of recognition either of an action or an interpretation of the Covenant.  There is second a hierarchy of discernment in respect to disputed matters that is located once more in The Standing Committee and the Instruments.  There is third a moral hierarchy also located in The Standing Committee and the Instruments.  Presumably, the recommendations of these bodies, to the extent they are in agreement, place the burden of proof on those churches that may disagree.  Finally, there is a limited form of political authority.  That is, The Standing Committee and the Instruments may limit or suspend participation on the part of a Church that refuses their counsel.  This form of political authority has been accorded to the Archbishop of Canterbury since the first Lambeth Conference when he withheld an invitation to Bishop Colenso. It was recently exercised in the case of the Bishop of New Hampshire.  The political authority of the Archbishop of Canterbury to invite (or not) is, in the proposed covenant, simply being extended in a limited way to the other Instruments of Communion.  Here one is not dealing with a jurisdictional authority, but with a procedure for determining membership and its privileges.

Allow me a final comment before passing on to the “thin” view of communion.  It is clear to me that the proposed covenant is indeed designed to sustain and strengthen a form of communion that involves common belief and practice as well as common mission, and common ministry coupled with mutual hospitality and assistance.  It seems clear to me also that it does so in a way that protects the autonomy of the various provinces of the Communion.  It is clear to me as well, however, that the success of the covenant in achieving the goal of autonomy in communion, since it does not have a central form of jurisdiction, depends upon the presence and exercise of certain graces within and between the various Churches.  These are sketched in #3 of the Introduction—“Faithfulness, honesty, gentleness, humility, forgiveness, and love itself, lived out in mutual deference and service.”  To these we might add, as did the Virginia Report, mutual subjection in the body of Christ that manifests itself in “eagerness to maintain the bond of peace in the unity of the Spirit.”  This understanding of what might be called the moral and spiritual foundation of the proposed covenant mirrors that of Paul in the letter to the Romans (12-16) and in the Epistles to the Colossians and Ephesians.  The quality of life in the Spirit among Anglicans will determine the fate of their communion.  The structures and procedures proposed by the drafters of the Covenant can facilitate communion but they will not be effective apart from the form of life summarized by the graces listed in the “Introduction.”

In one way, I believe the present Archbishop of Canterbury understands this truth about a conciliar form of governance.  Many have criticized him (myself included) for silence during the processes that have led up to the present covenant proposal.  However, to be fair, one must recognize that conciliar governance, which eschews centralized forms of authority and power, depends upon a commitment to forms of mutual subjection like those that undergird the present covenant proposal. This simple fact limits what any Archbishop of Canterbury can achieve. Apart from a willingness to be subject one to another all the moral authority in the world will be of little effect.

The drafters of the proposed covenant appear to be aware that it is the presupposition of mutual subjection that provides the foundation for Anglican polity in all it forms. Sadly, it is precisely this understanding that TEC’s present leadership seems to lack.  The recent history of that church has been one of contending parties relentlessly pressing their position with the sole purpose of winning.  It is not surprising that TEC has carried the same strategy into inter-Anglican relations by acting on its convictions even in the face of objections on the part of each of the Instruments of Communion and a significant majority of the churches that comprise the Communion.  TEC’s stance is particularly sad because it is just this form of conciliarism that Anglicans have to offer to our primary ecumenical partners, and it is just this form of conciliarism that TEC’s actions have served to subvert.

VI

The form of church order sketched above is intended to sustain and further a “thick” theological account of communion. That championed by those who hold a “thin” account has a very different goal, and favors a far less structured form of inter-provincial relationship—one in which none of the forms of hierarchy present in the covenant proposal extend beyond diocesan and provincial boundaries.   The goal is different because advocates of the thin position have a very different theology and give a very different account of the Communion and its order.

The earliest expression of that view of which I am aware comes from the former Archbishop of Canada, Michael Peers, in his Arnold Lecture of 2000.    Archbishop Peers juxtaposes a form of communion based upon confessional agreement with one rooted in the practice of mutual hospitality and aid.  In his view, the boundaries of autonomous dioceses and provinces should not be drawn by confessional statements (which he considers an Un-Anglican Activity). It is his view that the Provinces are tied together by appreciation of difference and mutual aid rather than identity of belief and practice.

By using confessionalism as a foil for his relational view of communion, Archbishop Peers sets up something of a straw man.  Mark Chapman, in his article “Catholicity, Unity and Provincial Autonomy” provides a far more convincing version of the thin account.   He agrees that there must be fundamentals, but for Anglicans these are adequately expressed by the four elements of the Chicago/Lambeth Quadrilateral.  These boundaries do not provide much by way of theological specificity; however, for two reasons, what might be called “theological under-definition” is thought to be a good thing.  First, because of differences in cultural and historical context Christian truth, for the sake of effectiveness, must receive various articulations.  Second, Christian truth can only be partially grasped within history.  A fully adequate grasp of that truth lies out ahead.  It is an eschatological goal rather than a present possession.  For these reasons, Provinces ought to be given maximal autonomy.  Relations between them should not be on the basis of doctrinal recognition but on the basis of love. Doctrinal agreement is a consummation devoutly to be hoped for but not a present requirement for communion.

Ian Douglas, who also favors a form of theological polycentrism, takes the argument a little further by suggesting that what he considers moves toward the centralization of authority in the Anglican Communion are not only destructive of the richness of Christian expression but also expressions of paternalism on the part of Western Christians who wish to retain control of an increasingly diverse communion.   He acknowledges the need for transnational structures, but sees them in the service of common mission rather than as means of insuring the provinces recognize a commonality in their belief and practice

These two authors present the two pillars of the thin position, viz., the inevitability and benefit of doctrinal pluralism on the one hand and a view of communion whose foundation is common mission (understood primarily as seeking peace and justice) abetted by mutual aid and hospitality on the other.  There are, however, more polemical defenses of the thin position in circulation.  I have mentioned Ian Douglas’ charge that the Windsor Report gives expression to a form of Western paternalism. Bloggers have leveled the even more serious charge that the covenant is the tool of homophobic forces bent on causing conflict and furthering injustice in all parts of the globe.  Behind these negative judgments, however, stands a positive theological conviction—one that provides what I believe to be the primary justification for the thin view of communion.  The conviction is that the action of TEC constitutes a prophetic witness, and that prophetic witness in defense of gay people and other marginalized persons is a primary vocation of TEC.  Prophecy is, in fact, the particular gift TEC has to offer the Communion and its ecumenical partners.

Behind TEC’s fascination with the prophetic office stands a distinctive construal of the Gospel of Christ, namely, that God’s purpose in history is to establish peace and justice and include the outcast and disadvantaged within its compass.  The mission of the church, like that of Christ, is to seek justice apart from which there can be no peace.   Communion between the churches is one of placing themselves jointly in God’s service in a quest for peace and justice.  In this case, church order is properly designed to facilitate cooperation and mutual assistance in this effort but not common belief and practice.

VII

It is not surprising that this difference in theological perspective has had its effects both upon TEC’s relation with the rest of the communion and upon the way in which its own order is interpreted.  In respect to TEC’s relations with the rest of the communion, I have said enough already to make a credible claim that resistance within TEC to Section 4 of the proposed covenant is related to a theological conviction that the Gospel message must be incarnated in given places.  In North America, TEC’s leadership claims such incarnation requires full inclusion of gay people in the life of the Church.  Covenantal provisions that impede such contextualization are, therefore, to be resisted.

In respect to the way in which advocates of the thin view interpret TEC’s own Constitution and Canons a tack opposite to that taken in respect to the Communion as a whole has been followed.  Since full inclusion is central to the Gospel message, dissent in respect to such a view is to be strongly resisted.  To oppose inclusion is a matter of injustice. One must, therefore, have a strong central authority to prevent deviations of this sort. The problem is that TEC’s Constitution does not give either The General Convention, or the Office of the Presiding Bishop, or the Executive Council, or the Council of Advice this sort of authority.   As a result, it is difficult to place limits on dissent by individual dioceses.  Unfortunately, within TEC, dissent of this sort has to date taken the form of leaving TEC for another province—sometimes by individual parishes and sometimes by entire dioceses.

My own view is that this form of dissent lacks both adequate theological justification and prudential merit.  Be that as it may, TEC’s constitution makes no provision for addressing the action of dissenting dioceses by the ordering mechanisms just mentioned. Given the centrality of the issue involved and given the value of the property involved, it is not surprising that The Office of the Presiding Bishop has proposed a novel view of the ordering mechanisms of TEC—one that presents TEC not (as stipulated by its present constitution) as a voluntary association of dioceses that creates mechanisms to facilitate a common mission but as a corporation to which the various dioceses are subservient.

Before bringing this discussion to a close, I must comment on what I take to be the inadequacy of the “thin position.”  One must welcome the fact that, as in the case of those who support the thick account, advocates of the thin position have at last turned their attention to questions of order and hierarchy.  In doing so, however, those who hold the thin position have exposed the inadequacy and incoherence of their own view.

How so? It has been noted that the form of jurisdictional and moral hierarchy they dismiss or condemn on an international level they elevate on a local one.  It is precisely at this point, however, that the inadequacy and incoherence of the thin position becomes patently obvious.  In respect to inadequacy, one is forced to say that the account of mission so central to the thin position is itself “thin.”  It focuses relentlessly on good works in pursuit of peace and justice yet pays little or no attention to the transcendence of God, the atoning sacrifice of Christ or the importance of conversion. It is also the case that the sort of theological diversity advocated in the end empties the notion of Christian identity of meaningful content.  Indeed, it empties the notion of communion itself of meaningful content. Simple citation of the four elements of the Chicago/Lambeth Quadrilateral leaves room for all sorts of false accounts of Christian belief and practice and so does little to address the question of “recognizability.”  In the end one is left with little more than a loose association of churches linked by a rapidly fading common history and mutually beneficial aid agreements.

In respect to incoherence, let this problem be noted. Because those who hold the thin view of communion believe that the inclusion of gay people is a matter of the Gospel, a question immediately presents itself.  What would be their position if a majority of the provinces of the Communion shared their view?  Would they continue to support the sort of pluralism they now do?  Because they believe the inclusion they advocate is a matter of the Gospel, it would seem that they would at least, on this issue, insist upon “recognition” of their position throughout the communion.   One must ask, therefore, if in fact the thin version of communion is not merely a tactical stance fashioned to create space for a progressive view of the substance of the Gospel until such time as it is more generally accepted.  One must ask as well if in fact a pluralistic view of communion of the sort progressive voices advocate does not necessarily lead to the conclusion that space must be made for false accounts of the Christian Gospel including ones that advocate forms of injustice.  In short, one must ask if a thin view of communion like that now advocated by TEC does not necessarily end in a rather obvious self-contradiction.

VIII

Be that as it may, TEC pleads for a right of dissent on a communion level but, by constitutional irregularity and canonical misuse, seeks to close out that possibility within its own ranks.  With this point, I rest my case.  A failure to pay attention to that wretched cat “Polity” has landed TEC and the Anglican Communion in a proper mess.  Anglicans now have before them two accounts of the nature of communion, two accounts of hierarchy, and two accounts of the way in which the common life of the Communion ought to be ordered.  For the thick account, hierarchy is of different sorts, each of which has a particular sphere of operation and each of which stands in the service of a thick view of communion.  For the thin account, hierarchy is addressed only in its political guise and as such is limited in its sphere of operation to diocese and/or province.  Within these spheres, it serves to order local and autonomous churches each of which is called to carry out the mission of the church in a particular locality.

I personally am delighted that both TEC and the Communion are at last paying attention to the wretched cat “Polity.”  In doing so, however, the issue of dissent has presented itself with considerable urgency.  At the moment, TEC finds itself in a dissenting position in respect to the covenant proposal now before the Communion; while those within TEC who support the covenant find themselves dissenters in relation to their own church.  It would seem that everyone within TEC is in one way or another confronted with the issue of dissent.

When the normal processes of governance no longer provide effective means for objection, just what is the right way to express this dissent?  For those within TEC, is the right way departure?  For TEC itself, is the right way to seek, as now it does, to escape the consequences of its actions by means of a covenant that lacks both theological substance and any meaningful form of accountability?  My own view is that the answer to this question is to be found in the well-tested tradition of civil disobedience.   Civil disobedience seeks neither to bring down duly constituted authority nor to establish another altogether.  Rather it seeks to express loyalty to governing authority by dissenting from actions that do not accord with the reasons for its existence.  Further, in dissenting those who are civilly disobedient insist upon suffering the appointed penalties for disobedience. They insist upon consequences so as to express loyalty to duly constituted authority even as they oppose actions that do not accord with the common good that government exists to uphold and further.

So, in conclusion, I suggest that we all attend to the counsel of our despised cat “Polity,” recognize the creature as an unlikely but valuable friend, give our support to the proposed covenant, and, if necessary, learn the practice of “ecclesial disobedience” as an expression of both dissent and loyalty. We learn this ancient art not as a means of breaking or weakening our communion one with another, but as a means, through costly witness, of strengthening our communion in one Lord, one faith and one baptism and one Father of us all.

I think, when we approach the articulation of the vision of the Communion Partner Plan we really need to start with our understanding of the identity of the Church. One of the best and certainly most succinct descriptions of the Church I have read is that of the Gospel in Our Culture Network, which was developed under the influence of the Church of Scotland missionary, Lesslie Newbigin. From their missional perspective, the church is the community whose purpose is to announce and demonstrate the purpose and direction of God in the world through Jesus Christ. Thus the doing is built in. We witness by announcing and demonstrating the Gospel. Such actions cannot leave the world, or the church, unchanged. It is here that we might begin to see that the radical transformation we are seeking has more to do with spiritual renewal than institutional re-formation.

Once we have placed ourselves in the path of spiritual renewal we begin to perceive that humble obedience to God is our most important attribute. We start to become conscious once more of the fact that the Church is of God’s making and belongs to him. When it comes to conversion, all of us are aware that men’s hearts are only changed through the action of the Holy Spirit. Likewise, we believe that any group of human beings called a church cannot be forced into reformation or renewal by men. Again, renewal in the Church is a sovereign act of the Spirit. And yet, this understanding of renewal does not let us off the hook like passive spectators. Rather, as in evangelism, we are to create an environment within the church that will allow renewal to take place. In other words, our role is to prepare the soil for the work of the Spirit.

As Episcopalians we find the environment in which we have been placed to be Anglicanism. The authentic Anglican identity is one of diverse communities living in interdependent communion. As such, the communion is a manifestation of the biblical model of the Church as described in the writings of St. Paul. In the Apostle’s letter to the Ephesians, we read that our God-given diversity is to be exercised under the headship of Christ and the unifying power of the Holy Spirit in order that we attain the “full stature of Christ” (Ephesians 4:1-7, 11-13). Elsewhere he writes that we are completed through the uniting of our combined gifts (1 Corinthians 12:14-21). Therefore, we have two essential elements of communion, unity under Christ and interdependence among communities. However, we cannot live successfully in any relationship unless we have ears to hear. We must listen to God, who speaks through Scripture and the Spirit, and we must listen to one another as parishes, dioceses and provinces in communion.

At this point, we in the Episcopal Church have become very accomplished at listening to ourselves, but reasonably deaf to the voices of the other provinces of our communion and the theological minority within our own province.  Furthermore, the voices of those the majority of the Episcopal Church chooses to hear have effectively deafened our province to the voice of Scripture. This is where the fellowship of the Communion Partners provides an alternative within the Episcopal Church. As Communion Partners, we seek to listen to the other provinces of the Anglican Communion and the Word of God as interpreted by the Church over the millennia because we are convicted that such listening is the only way we can fully experience communion and grow into the full stature of Christ. In addition, when we listen to others we also gain an understanding of how we are heard, gain a better perspective of what we are saying and are able to adjust our speech to the context of the recipient. Through such partnering and listening we envision that we can re-attain the role of the Episcopal Church as a fully functional member of the Anglican Communion. Within the Episcopal Church the Communion Partners offer a fellowship of individuals and communities that are dedicated to the restoration of our relationship with the Anglican Communion and the historic faith.

We are Episcopalians, and like Hosea of old, divorce is not an option for us. Rather, we are called to stay in relationship with the Episcopal Church in the hope that God will restore her and use her to glorify himself. Likewise, in all four Gospels Jesus calls us to follow him (Matthew 4:19; Mark 1:17; Luke 5:27; John 1:43). And where did Jesus go?  Jesus remained a Jew and repeatedly went to the Jews and debated with them even though they were apostate, rejected him and even conspired with the Gentiles to kill him. Together as dioceses, parishes and individuals following Jesus, we, as Communion Partners, can stand firm for the faith within the Episcopal Church and perhaps be a light for those who wish to see.

In directly addressing the question of what we are to do, I am going to present five ways to participate in Communion Partners at the parish level, and then five tasks that partner parishes can cooperatively tackle.

First, I will list five specific ways we can participate in communion partnerships at the parish level:

• As the basis for healthy cooperative relationships within the Communion, we can support and firmly commit ourselves to the Windsor process and Anglican Covenant that provide a meaningful framework within which we can function theologically and missiologically.
• We can establish ministry relationships with dioceses in other provinces which will provide for the sharing of ideas and ministry opportunities. Such relationships should be initiated through the process of listening to our partners in order to better understand them and their particular needs, and be continued based on mutual agreement and accountability.
• We can facilitate access to quality theological education and practical parish experience for our partners, as well as ministry-expanding opportunities for our parishioners through contact with partner clergy and lay persons, both at home and abroad.
• Within The Episcopal Church, we can commit ourselves to supporting one another through prayer and fellowship, with a particular concern for those rectors and parishes that find themselves isolated geographically or theologically.
• Finally, we can aspire to provide a positive contribution to the life of this church by witnessing to the importance of an authentic Anglican identity not only within The Episcopal Church, (USA), but also the greater Communion, by a consistent loyalty to the mission and relationships that best define our connectedness as members of the Body of Christ and Jesus’ presence in the Anglican Communion.

Second, here are five possible cooperative tasks for partner parishes:

• In view of the confusion about the church and its theology, a curriculum needs to be developed and offered that will inform our parishes about authentic Anglicanism and biblical Christianity. Work has already begun on such a curriculum.
• So that we can have opportunities to experience and listen to other Anglicans in other cultures, we need to provide mission trips for the members of our parishes to other Anglican Communion provinces.
• Partnerships for ministry and renewal need to be developed between isolated Communion Partner parishes and those in Communion Partner dioceses.
• Regular regional gatherings of Episcopalians interested in the Communion Partner vision should be offered for support, education and encouragement.
• A vehicle for communicating resources for mission and ministry opportunities offered by Communion Partner parishes and dioceses needs to be developed so that any interested parishes might have the opportunity to participate. Such a web site is on the verge of being unveiled.

In summary, the Communion Partner Plan is an action plan. Through it we can mobilize our dioceses and parishes for the spread of the Gospel in the church and the world. In his letter to the Ephesians, St. Paul gave us instruction for the battle when he listed our necessary equipment.

13 Therefore put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand. 14 Stand firm then, with the belt of truth buckled around your waist, with the breastplate of righteousness in place, 15 and with your feet fitted with the readiness that comes from the gospel of peace. 16 In addition to all this, take up the shield of faith, with which you can extinguish all the flaming arrows of the evil one. 17 Take the helmet of salvation and the sword of the Spirit, which is the word of God.  (Ephesians 6:13-17)

This is an exhortation to those who are called to actively stand their ground. If one is to passively fade into the environment and wait out the battle, he does not need the equipment that God has provided. St. Paul’s call to us is not to be passive but to strike a defensive posture for the preservation and promulgation of the Gospel. And this is a defense that depends upon the wielding of the “sword of the Spirit, which is the word of God.”

We who participate in the Communion Partner Plan have discerned a call to stay in the Episcopal Church and provide an example of the authentic Anglican identity. That being said, we continue to resist the temptation to sit back and let things happen. Our call is to announce and demonstrate the direction and purpose of God through our lives and the way in which we interact with others. To be a witness is to stand for something, so we are committed to being steadfast in seeking ways to represent the truth of Jesus Christ in the life and counsels of the church as a fellowship of witness.

The Reverend Charles D. Alley, Ph.D.
Rector of St. Matthew’s Episcopal Churc
Richmond, Virginia

What we have not argued is that we need to start the whole process of writing a Covenant over again; or that some party must convene its own adjudicating group of its own initiative to work from the ground up, independently of all the existing structures of the Anglican Communion.  Such a path, in my own view, would be disastrous.  The Covenant has come to its final text through a relatively regularized process, with relatively wide Communion representation behind its formulation, and has been commended and sent out by two recognized Instruments of the Communion (the ACC and Canterbury), and with at least some primatial endorsement (via the Joint Standing Committee of Primates and ACC, with, by the way, Abp Mouneer still present and participant before his resignation from that group).    Furthermore, the Covenant itself, in its formal declarations, provides a means forward for dealing with the current confusions, and we have suggested a way this might work that maintains legitimate continuity with the structures that have themselves given birth to the Covenant, ordered it, received it, and commended it.

Let me now speak personally about my own view of the other alternatives here – that is, other than the kind of proposal that ACI has put forward.  These alternatives to our proposal are being touted, with varying degrees of hostility, by one group or another on the blogs at the present, and I believe them to be options that must be avoided.

One alternative is simply to sit back and watch things unfold according to whatever dynamics are now in play with the ACC’s Standing Committee having laid out an extended time frame for the adoption process, having restricted participation, and having claimed an authority to itself for overseeing all this.  I strongly resist this alternative, for reasons that ACI has already argued, and which I will not repeat.  It is clear to everyone that the Covenant was always considered a threat by theologically more liberal (“progressive”) elements in the Communion, especially in the Western churches.  From the start, it was labeled as “coercive” and “punitive” in conception and execution, aimed at centralizing authority, eradicating local and national autonomies, excluding homosexuals from the Church, an instrument for injustice to be controlled by a vast Right-Wing Anglican Conspiracy.  Although these charges are false, few liberal leaders or liberal information sources in TEC have lost an opportunity to attack or diminish the Covenant and its supporters.  When the Covenant’s fate was given over to groups, like the ACC and its Standing Committee, that were disproportionately made up of those whose stated convictions were anti-Covenant, not so much as to determine the content of the Covenant itself as to control its dissemination and adoption process, there was every reason to be concerned and certainly vigilant.  When the outcome to this adjudication has been procedural chaos (at the last ACC meeting) punctuated by autocratic resolution, the insertion of new processes based on committees and rules whose provenance is either unknown or questionable, that is cause for disturbed dissent.   For the “process” to which the Covenant is now thereby consigned is one that is inevitably shaped by the Covenant’s own enemies.   And when that process is itself veiled, only partially declared in its authority, necessarily misunderstood and mistrusted by many, it is faithful common sense to resist it.  So I do.

The other alternative is to reject the entire process of the Covenant’s drafting and final text, to reject the groups that have had a hand in all of this, including the four Instruments of Communion, and simply to declare a new authoritative structure by which to formulate and adopt a new Covenant for those who wish to be party to these self-declared structures.  At present, this alternative has been voiced by some leaders in the Fellowship of Confessing Anglicans, the outcome of the so-called Gafcon movement.  Unfortunately, this movement, at least formally, has been no friend of the Covenant either, and it is hard to know why one would trust their stewardship of its fate any more than anybody else’s.  Leaders of Gafcon rejected the Covenant drafting from the start, as bound to processes they viewed as intrinsically corrupt.  In one embarrassing episode, Gafcon’s theological committee publicly issued a long and vitriolic critique of what they thought was the second draft of the Covenant, accusing it of theological betrayal – only to be later alerted that the document they were criticizing wasn’t even the text of the Covenant at all, but another wholly unrelated essay they had managed somehow to mix it up with in their anger. In any case, the final Ridley draft was initially criticized by FCA leadership as unacceptable, although later that view was softened.  But add to this that much of the Gafcon leadership refused to be present at the two main places where the Covenant’s content and future were to be studied, debated, and decided in the Communion – the Lambeth Conference of 2008 and the ACC meeting of 2009.   Archbishop Mouneer has felt marginalized in the meetings of the Communion:  but that is not simply because liberal opponents outnumber him;  it is also because traditional friends abandoned him.  Those who claim that they have the best interest of the Communion and the Covenant at heart, yet who have done everything to sabotage the processes by which the Communion’s members have struggled, in the face of much difficulty and internal turmoil to be sure, to draw our churches into a renewed common faith and witness – such persons do not garner the trust of many Anglicans any more than do those in America who have dragged us into this turmoil in the first place, and because of which the Covenant’s promise was first extended as a ray of light.

Let no one be misled on this point:  throw out the continuities of our common life on the front end, and the hope of reconstituting them at the back end is vain.  That is not because these continuities are sound in every, or even in many respects;   but rather because they represent the means by which personal motives, whatever they are, can be restrained by the Body of Christ, however weakened.  The Scriptures, and the Spirit that speaks them, cannot do their work among the self-willed, not because they do not have the power of themselves to accomplish their purposes, but because the “Amen” that is Christ’s answer to this work is given in the common voice not in the predilections of the autonomous.

There are, then, continuities in the Communion’s structures and the existing Covenant process that can and should be engaged. We have indicated how this might work in our paper:  First, a majority of provinces from the Global South, for instance, have indicated their readiness to sign the final text and they should go ahead and do so at the earliest opportunity.  This is a perfectly legitimate and indeed hoped-for action within the covenanting process.  Second, since the Covenant goes into effect upon signing, it would be appropriate for the provinces that do sign to create an ad hoc committee to handle pro tem the sorts of issues the Standing Committee envisaged by the Covenant is to address.  There is no legitimate reason this cannot happen;  and there is every moral reason, given the confusions and mistrust over the status and character of the current ACC Standing Committee, that this should happen.  Third, far from trying to subvert the ACC’s place in the Communion, however contested it is,  it is clear that there needs to be some public and transparent discussion about how to form a “Standing Committee of the Communion” that is recognized by our churches and capable of doing what it needs to do for the sake of covenanted life. The Archbishop of Canterbury should take steps in conjunction with those who have signed the covenant or are in the positive process of adoption to see that this issue is addressed in a way that inspires confidence and provides stability for the future.  All of this is reasonable, doable, and consistent with both our current Anglican Communion order and with the intent of the Covenant’s effect.

Thinking through matters in this light and making such proposals is hardly a matter of either attempting to stage a coup or playing footsy with corrupt powers.  Rather, I believe it to be a responsible path to follow in what we all know to be a longer, more challenging, and difficult journey in our Communion’s vocation.  I do not reject the ACC or its members and leaders;  I will question vigorously those of their actions I think are ill-advised;  I will resist strongly actions that appear to be improper.  But the ACC are not my enemies;  they are a part of the church of which I am a part.  I do not reject the Archbishop of Canterbury.  He is in fact someone whose heart and mind I deeply respect in Christ.  I will question vigorously, however, judgments he makes or actions he takes that I think are ill-advised;  I will even resist those that appear to be improper, as I would any within the church.  But he is someone, quite apart from my personal views, whose role I honor in my very office as an Anglican priest.  I do not reject the leaders and members of FCA – among them are individuals I do indeed respect and, out of a similar bond of ecclesial affection and shared ministry, I honor.  But I will resist vigorously judgments and actions that seem ill-advised;  and I will resist ones that seem improper.  I do not reject TEC itself, of which I am formally a member and in whose ordering my ministry is placed.  But I do maintain the calling of honesty, necessary dissent, and active resistance where called for.

None of this is an all-or-nothing proposition, not as I understand the Church in Christ at any rate.   In the Church’s life as it travels through the world there is struggle, agon, as Paul says repeatedly.   We do not continually have to throw everything away and start over again.  We engage continuities of faith and relationship as they are given us and as we are able, we correct them, we strive to reform them, we suffer rebukes and setbacks.  But that is what faith engages us in;  that is Christ’s life, and the life of His Body.   One of the many things I admire about Bishop Mouneer is just his witness to this kind of striving.  His resignation from the ACC Standing Committee came only after a long and devoted service within particular Communion structures that most of his theologically-sympathetic colleagues had long since abandoned, leaving him a lone voice within an often hostile context.  Further, his resignation does not constitute a rejection of these structures themselves, but a sense on his part that the overriding goal of the Covenant, which he continues to support, is more faithfully served outside of a committee incapable of shepherding the Covenant to its effective adoption.  Finally, Abp Mouneer has always and continues to support Anglicans from around the globe who themselves have maintained their place in the difficult work of engaged renewal of the Communion common life, including the Communion Partners in TEC.   This is not a walking away from engagement, but a fuller grappling with its tasks.   Well should we heed  the larger example here

There is still work to be done with this Covenant, and good work at that.  There are questions to be raised, resistance in some cases to be offered, and constructive labor to be expended.  Speaking for myself, I pray that it be done together, and not in various corners of a pugilist’s ring.

We have learned today from Bishop Mouneer Anis that he has submitted his resignation from the former joint standing committee. Following so closely the release in December of the final text of the Anglican Communion Covenant, this resignation underscores the extent to which the Anglican Communion is at a major crossroads. At this decisive moment, however, substantial doubts have been expressed both publicly by Bishop Mouneer and privately by others as to whether this committee, now the standing committee of the Anglican Consultative Council, is the appropriate body to coordinate the implementation of the Covenant. These concerns point to the steps that we believe are necessary to restore the Communion so badly damaged by actions in North America over the last decade.  In what follows, we seek first to outline the current structural challenges to the Covenant’s initial implementation.  This will involve some important, if technical, analysis.  Only then, however, can we make clear what, in our mind, these necessary steps for implementation are.

In summary, and on the basis of our continued conviction that the Covenant itself as currently formulated is a positive, faithful, and necessary basis for the renewal of the Anglican Communion and its member churches, we argue that:

1. The final Covenant text envisions a Communion of responsibly coordinated Instruments, ordered episcopally, that the current ACC-led standing committee is in fact undermining;
2. The current ACC standing committee is not necessarily the “Standing Committee of the Anglican Communion” indicated by the Covenant text, and cannot therefore automatically claim the authority it seems to be assuming;
3. The current ACC standing committee has little credibility in the eyes of a large part of the Communion and ought not to be claiming the authority it seems to be assuming;
4. Those Churches of the Communion who move fully and decisively to adopt the Covenant must work with a provisional and representative standing committee, continuous in membership with the other Instruments, that will direct the implementation of the Covenant in a way that can eventually permit a Standing Committee of the Anglican Communion to be formed as envisioned by the Covenant text.

The Pressing Need for the Covenant’s Adoption

We begin by reiterating our belief that the Covenant is the only means for preserving our endangered Communion. We note with appreciation the recent statements of support for the Covenant from Communion churches that have not fully participated in the Communion’s councils in recent years. If the Communion is even to survive in any recognizable form, much less be restored to thrive with the missionary vigor that once characterized Anglicanism more broadly but now is confined to only certain parts of the globe, the Covenant is the only hope. We are confident that the Covenant if implemented in good faith will bear this fruit.

First Principles: The Central Role of Bishops and Distinct Instruments of Communion

In order to understand fully the concerns about the implementation of the Covenant it is necessary 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.”

The new Section 4 reflects these fundamental principles in its provisions for adopting, maintaining and amending the Covenant. It assigns to a “Standing Committee of the Anglican Communion” a coordinating and monitoring role in carrying out these activities. Prior to the release of the Covenant, no such committee had been given that title or assigned the role of performing these functions.

Contrary to a widely shared assumption, Section 4 does not in fact explicitly identify this “Standing Committee of the Anglican Communion” with any pre-existing committee. It does, however, define the Committee’s responsibilities and thereby determines the qualifications for any committee that would fill this role. First, and most importantly, the Standing Committee of the Anglican Communion is to be “responsible to the Anglican Consultative Council and the Primates’ Meeting.” Its primary role is to “monitor,” “take advice,” and “recommend.” Importantly, “[o]n the basis of advice received from the Anglican Consultative Council and the Primates’ Meeting, the Standing Committee may make a declaration that an action or decision is or would be ‘incompatible with the Covenant’.” In other respects, however, its role is that of coordination and recommendation, all the while “responsible to” the two Instruments of Communion. For example, under 4.1.5, invitations to “other churches” to adopt the Covenant are issued by the Instruments, not the Standing Committee of the Anglican Communion. Similarly, under 4.4.2, proposed amendments to the Covenant may be submitted either by the covenanting Churches or by the Instruments. They are submitted “through” the Standing Committee, but that Committee’s duties are mandatory, not discretionary: it “shall” send the proposal to the Instruments and Churches for advice, make a recommendation and then submit the proposal to the covenanting Churches for approval.

The working group that revised Section 4 seems to have assumed that the recently reorganized standing committee of the ACC would function as the Standing Committee of the Anglican Communion, and the ACC committee itself appears ready to assume the functions of the committee defined by Section 4 of the Covenant. But it is increasingly doubtful that this assumption, which has not yet been explicitly and publicly ratified by any of the Instruments, is consistent with the text of Section 4 or acceptable to a large part of the Communion.

It is important to recognize that the committee that recently met in December to approve the revisions to Section 4 was itself the standing committee of the ACC as defined by the ACC constitution. It was acting pursuant to Resolution 14.11 from the May 2009 meeting of the ACC in Jamaica that asked its standing committee to approve a final form of Section 4 and asked the ACC’s Secretary General to send the revised text of the Covenant to the Churches of the Communion. These actions were not authorized by the Primates’ Meeting.

This point is easily lost and bears repeating: this committee is formally the standing committee of the ACC as defined by the ACC constitution. It is widely regarded as the successor to the former “Joint Standing Committee,” which apparently no longer exists, but that “joint committee” was in fact two committees, each  responsible to a different body, that met together for some but not all purposes. That the ACC chose to re-organize its standing committee to include representatives of the Primates and the Primates authorized its representatives to serve on the ACC committee does not change the fact that this committee is constitutionally a committee of the ACC. There is no published report that the Primates have authorized this committee to replace their own standing committee or act on behalf of the Primates. Nor is there indication that the Primates have changed the composition of their separate standing committee.

And as we have noted before, the Covenant is not the property of any one Instrument. It could have been approved and sent to the Communion Churches by any of the Instruments or, indeed, by any of the Churches. The doubts that now arise relate specifically to the extent to which the other Instruments and Communion Churches should defer to the ACC and its assumption of the central role in the implementation of the Covenant.

The ACC: A Time of Transition and Confusion

These matters are greatly complicated by the fact that the ACC is in the midst of a period of legal and constitutional transition. It is not yet clear what the implications of this reorganization ultimately will be for the Communion and the Covenant, but the main elements of this transition are twofold: (1) an ongoing process of incorporating the ACC under UK law and changing its legal structure to that of a charitable company; and (2) contemporaneous steps, controversial in some particulars, to make the ACC more effective and representative of the Communion as a whole.

Becoming a UK Charitable Company

Secretary General Kearon has recently summarized the status of the first of these elements, the legal process, as follows:

The Constitution of the ACC has been through a long process of change, first proposed in 1999, as outlined in the enclosed background statement. Part of this included a change of status from a Charitable Trust to that of a Charitable Company. As a charitable company it requires ‘Articles of Association’. These articles closely reflect the Constitution of ACC but also conform to the requirements of the Charity Commissioners in the UK. These were available at the ACC meeting in Jamaica in 2009 and were discussed at the recent Standing Committee meeting. These were sent to the Charity Commissioners for final approval immediately after ACC in 2009, but we have not yet received a response, and until that happens we are procluded for [sic] publishing them on the website.

…

The main purpose of the change is to give a greater degree of protection to the trustees (the members of the Standing Committee). Some other changes were incorporated into the process, the most significant of which is to make the Primates’ Standing Committee ex-officio members of the ACC and of its Standing Committee (hence the name change of the Standing Committee). (Emphasis added.)

http://blog.deimel.org/2010/01/communion-transparency-take-3.htm

http://www.episcopalcafe.com/lead/anglican_communion/anglican_constitution_is_what.html

It is clear from Canon Kearon’s correspondence in recent weeks that: the ACC is in the process of being incorporated under UK law; the “main purpose” of this change concerns the status of the ACC standing committee under UK law; this committee will be subject to new Articles of Association, which are still to be approved by UK authorities, under which the committee members will be fiduciaries of and responsible to the ACC and will themselves be governed in the exercise of their fiduciary duty by UK law; Canon Kearon believes the new Articles cannot be made public due to constraints imposed by UK law; those Articles contain changes to the current ACC constitution; and some of the changes relate to procedures for amending the membership schedule of the ACC, which is a provision explicitly referenced in Paragraph 4.1.5 of the Covenant. We will return to the implications of this reorganization below.

Becoming More Representative and Effective

The final Report of the Windsor Continuation Group recently summarized the thinking behind the second of the elements of the ACC transition, the need to reform the ACC to make it more representative and effective:

71. However, there are questions about whether a body meeting every three years, with rapidly changing membership can fulfil adequately the tasks presently given to it. There may be other ways in which the involvement of the laity should be made effective in the discernment and guidance of the Communion and not only at the world level.

72. Related to the Anglican Consultative Council and the Primates’ Meeting is the work of the Joint Standing Committee, which is the meeting together of the Standing Committee of the ACC with the Standing Committee of the Primates. It is not a separate Instrument of Communion, but it does contain representatives of all four Instruments – presided over by the Archbishop of Canterbury, with representatives of the Primates, of the bishops, and of the clergy and lay members of the Council. The crux is how the committee works and the various parts dovetail. In many senses, it is still in an early stage of development. As it develops, it will be important to stress the links to all four instruments so that it is not just seen as a branch of the ACC. It will also be important to ensure that the membership reflects the breadth of opinion in the Communion. If the membership becomes polarised, it will lose its ability to act effectively on behalf of the whole Communion. It would be strengthened by the Archbishop of Canterbury being present throughout the meeting.

Recommendation:

73. A review should be commissioned of how the Anglican Consultative Council’s effectiveness and confidence in its work can be enhanced. In particular, the WCG would like to see work done on exploring the effectiveness and role of the Joint Standing Committee in the life of the Communion. In order for it to be able to do this, questions need to be addressed about its membership and the extent to which Provinces are prepared to invest in its work. The JSC needs to be constituted in a way which is seen as fully representative; at which the primatial members are fully participating, and at which the Archbishop of Canterbury is fully present throughout its meetings. (Emphasis added.)

The newly-created Inter-Anglican Standing Commission on Unity, Faith and Order has been charged with the responsibility for the review recommended here by the WCG and is only now beginning its work.

For its part, the ACC has responded to these concerns by making members of the Primates’ standing committee ex officio members of the ACC and of the ACC standing committee, but this does not in any way change the fundamental legal nature of that committee as a committee of the ACC, with all the duties that status entails. This is a subtle, but important, point: the Primatial members have been made members of the ACC and its standing committee. Their membership may make the ACC more representative, but we assume that as standing committee members their primary and other fiduciary duties will be owed, not to the Primates’ Meeting, but to the ACC and its charitable purposes. Indeed, this points to a profound concern: as trustees or directors of a charitable company (the new ACC) governed by UK law, the members of the ACC standing committee (including the Primatial representatives) will have fiduciary duties to the ACC that are defined by UK law rather than Anglican doctrine at a time of increasingly aggressive secularization in that country.

It should be noted that this concept of adding Primatial members to the ACC standing committee was proposed in the Windsor Report, but that report also concluded:

This would give structural and constitutional reality to the present arrangements of meeting annually, but with unresolved questions of differing responsibilities.

Resolving those questions by placing on the Primatial members, already a minority, the same responsibilities as those of the ACC members diminishes the independent voice of the Primates.

Should the ACC Standing Committee Become the Standing Committee of the Anglican Communion?

In this context of transition, uncertainty and doubt, the question necessarily arises whether the constitutional standing committee of the ACC, even as recently expanded, is the appropriate body to do the work specified for the “Standing Committee of the Anglican Communion” in Section 4 of the Covenant. We recognize that most observers consider this a foregone conclusion and that this position is not unreasonable. We are, however, increasingly doubtful that this is in the best interests of the covenanted communion and at a minimum can conclude that an affirmative answer to this question is not automatic as has been assumed up to this point.

First, no Communion Instrument or Church has yet explicitly authorized the standing committee of the ACC to function in this manner. The Primates Meeting has not done so; it has not even met since Section 4 was drafted. Indeed, not even the ACC has expressly authorized its standing committee to function in this way, including in particular any authorization to be “responsible to” the Primates Meeting as required by Section 4.

ACC Resolution 14.39 entitled “Terminology (Standing Committee)”, passed last May, provided that the Council:

a. notes that the former “Joint Standing Committee” is named as the “Standing Committee” under the new constitution;

b. amends the resolutions of this Anglican Consultative Council meeting so that the title “Joint Standing Committee” is replaced with the title “Standing Committee” wherever appropriate.

And in Resolution 14.38, the Council:

a. welcomes the presence of the Primatial members of the Standing Committee as full members of the Anglican Consultative Council, and

b. asks the Primates to include an equal number of non-Primatial members of the Standing Committee as non voting participants in the Primates’ Meeting.

But as already noted, the effect of these resolutions (reflecting an amendment to the ACC constitution) was to expand the standing committee of the ACC by giving the Primates minority representation, not to authorize it to function as the committee that would only later be specified in Section 4 of the Covenant. Notwithstanding the official change of terminology (enacted retroactively), there is no reference in the ACC resolutions even as amended to any “Standing Committee of the Anglican Communion” nor is there any indication that the ACC intends that its own standing committee will be “responsible to” the Primates’ Meeting or act on behalf of any Communion Instrument other than the ACC.  To the contrary, Article 8 of the current ACC Constitution (“Powers of the Standing Committee”) makes clear that this committee is still responsible to the ACC: “The Standing Committee shall act for the Council between meetings of the Council and shall execute such matters as are referred to it by the Council.” (Emphasis added.)

In this light it is instructive to compare the role of the ACC’s standing committee to that of its Secretary General. The ACC constitution specifies that this officer is the Secretary General of the ACC:

The Council shall delegate to its Standing Committee the appointment of a Secretary for a specified term who shall be known as the Secretary General of the Council and whose duties it shall determine. (Article 6.c; emphasis added.)

But at the first ACC meeting, the Council passed Resolution 42, which defined the duties of this office as follows:

(a) to be responsible for all secretarial and other duties for the Council and for the meetings of the Council and of its Standing Committee; and

(b) to serve the Anglican Communion and its member Churches with particular regard to the stated functions of the Anglican Consultative Council and to the recommendations and reports of the Council. (Emphasis added.)

This resolution is noted as a footnote to the ACC constitution and is why the office has been designated since the time of its first occupant as the “Secretary General of the Anglican Communion.”

But note carefully the provisions of subpart (b) of this resolution. The Secretary General is authorized by the ACC to serve the whole communion, but he is appointed by the ACC standing committee and is obligated to pay “particular regard” to the ACC and its recommendations. It is precisely this dual role and possible conflict that lies at the heart of our concerns about the ability of the ACC’s standing committee to perform the functions defined for the Standing Committee of the Anglican Communion in Section 4 of the Covenant.

Second, when the legal reorganization of the ACC is completed, the members of the ACC standing committee will have duties and responsibilities to an entity, the ACC, governed by UK law. These duties and responsibilities will be determined by UK law and will be owed to the entity, the ACC, on whose standing committee they serve. Can the members of the ACC’s standing committee function in the way contemplated by Section 4 for the Standing Committee of the Anglican Communion? Can the committee be “responsible to” the Primates Meeting? Can it consistent with its legal duties ever act contrary to the advice or direction received from the ACC and accept instead the advice of the Primates or the covenanting Churches? If the legal advice is that this would not be inconsistent with the fiduciary duties imposed under current UK law, how might future court decisions or legislation change this advice? How will substantive provisions of UK and EU law, such as non-discrimination regulations, affect the deliberations of this committee on Communion disputes?

Third, the uncertainty raised by these questions is exacerbated by a lack of transparency concerning the legal status of the ACC and its constitution. ACC Resolution 14.39 refers to a “new constitution” as if one were already in effect. Canon Kearon indicated in his recent correspondence that the new legal entity will be governed, at least in part, by “Articles of Association,” which “closely reflect the Constitution of ACC but also conform to the requirements of the Charity Commissioners in the UK.” It remains unclear whether they replace or supplement either the existing or the “new” ACC constitution. It is said that UK law prevents the posting of these Articles on the Communion website.

And in what is probably the single most contentious paragraph in the Covenant, a change was made to Paragraph 4.1.5 to incorporate a reference to procedures for amending the ACC membership schedule. Canon Kearon’s cover letter disseminating the Covenant to the Communion Churches cited the unpublished Articles of Association to explain these procedures, but the procedures he quoted were different from those that were shown at the time in the published version of the ACC constitution on the Communion website. Canon Kearon subsequently amended his cover letter and the published version of the constitution was changed as well, but the constitution even as changed still does not match what Canon Kearon quoted from the Articles. We do not want to dwell on what might be minor discrepancies and administrative hiccups–although the differences in the procedures are substantive and when ACNA was formed a year ago a Communion spokesman described the procedures as “clear” and cited different ones than are now quoted by Canon Kearon. But transparency on such a contentious issue is essential, especially when more profound questions lie just beneath the surface.

As the websites linked above indicate, concerns about transparency and the changes to the ACC’s legal status are shared across the theological divide in the Communion. We too have addressed this subject previously in our statement of December 22, 2009:

http://www.anglicancommunioninstitute.com/2009/12/committing-to-the-anglican-covenantan-analysis-by-the-anglican-communion-institute/

Fourth, it does not help that the ACC standing committee in purporting to fulfill the role of the committee specified in Section 4 of the Covenant has already assumed authority not in fact given to the Standing Committee of the Anglican Communion. In his cover letter, Canon Kearon announced the following decision by the “Standing Committee”:

The Standing Committee has decided that it will neither invite any other Churches (beyond the Schedule of members of the ACC) to adopt the Covenant (Covenant 4.1.5), nor propose any amendments to it (Covenant 4.4.2), until it has had an opportunity to evaluate the situation after ACC-15. (Emphasis added.)

But even a cursory review of Section 4 shows that it is the prerogative of the Instruments, not the Standing Committee, to issue such invitations and it is the right of any Instrument or covenanting Church to propose amendments, which the Standing Committee has a mandatory duty to process.

Finally, and most importantly, this approach fundamentally misconceives the nature of the Anglican Communion. The ACC is not a body that subsumes all other Instruments; nor do those other Instruments get their authority by being incorporated into or recognized by the ACC. And the constitution of the ACC is just that: the constitution of one, but only one, of the Instruments.  These principles, as already noted, are fundamental to both the Covenant and the Anglican Communion as traditionally understood. To the extent that any one body plays a “central role” in the Anglican Communion it is the college of bishops, as Paragraph 3.1.3 of the Covenant makes clear. Thus, any notion that Primates must first be made members of the ACC standing committee and thereby legally responsible to the ACC and only then serve as members of a Standing Committee of the Anglican Communion is fundamentally misguided and assumes a foundational priority for the ACC that is inconsistent with both traditional Anglican ecclesiology and Section 3 of the Covenant.

These matters take on greater, not lesser, significance as the ACC subjects itself to an increasing degree to the vagaries of UK civil law. So the notion that the ACC controls the Covenant, that its constitution is the controlling legal instrument of the Communion and that its standing committee, whether enlarged by representatives of other Instruments or not, is the de facto Standing Committee of the Anglican Communion is one to be strongly resisted at this time, not one to be embraced without further thought.

And, it must be noted, this discussion points to the larger issue of whether the ACC as a UK company subject to UK and EU legal requirements will be able to function as an Instrument of the Communion as contemplated by the Covenant. The references in Section 3 of the Covenant to the ACC are, of course, to the ACC as currently constituted, not as it may eventually emerge, legally transformed, when necessary approvals have been obtained from UK legal authorities.

The Standing Committee’s Current Lack of Credibility

We have focused to this point on formal issues that are important in their own right to the Communion. But we must be clear that these complex questions are neither the only nor even the most important reasons for raising concerns about the role of the ACC standing committee as now constituted. Indeed, the urgency to consider these questions now arises because they point to a more profound flaw in the mechanisms currently contemplated for implementing the Covenant.  Whatever its legal status, the standing committee of the ACC does not enjoy the trust of a large part of the Communion. The degree of trust, already diminished, was further eroded by the public display of procedural chaos, never appropriately resolved, at the last ACC meeting, out of which the current committee’s make-up emerged. And to repeat a point made above by the Windsor Continuation Group about the ACC: “If the membership becomes polarised, it will lose its ability to act effectively on behalf of the whole Communion.”

This issue has been brought to a head by the election of a non-celibate lesbian as suffragan bishop in Los Angeles, which occurred after the Covenant working group finished its revision of Section Four. Confirmation of this election by TEC as a whole, following the removal of previous restraints at last summer’s General Convention, will be a clear repudiation of the discernment of the Communion on this issue and therefore a repudiation of the Covenant under which each covenanting Church undertakes “to endeavour to accommodate [the] recommendations” of the Communion’s Instruments and “to act with diligence, care and caution in respect of any action which may provoke controversy”. Should the bishop-elect receive the necessary consents for consecration TEC could not maintain in good faith any claim to be “still in the process of adopt[ing]” the Covenant as contemplated by paragraph 4.2.8. The representation—highly disproportionate moreover–of TEC on the standing committee of the ACC in such circumstances would disqualify that body from Covenant decision-making even if the legal issues described above were resolved. Furthermore, although the consent process for the Los Angeles election has not been concluded, the injection of this kind of confusion into the structural initiation of the Covenant’s dissemination and adoption process coupled with the current ACC committee’s transitional status preclude that committee from functioning in a way that the Covenant text itself envisions and about which the Communion at large ought to feel confident.

Necessary and Constructive Steps Forward

Where do we go from here? The Covenant is now in the hands of the Churches of the Communion. This is altogether fitting as it is a Covenant among those Churches. As the Preamble recites, it is the “Churches of the Anglican Communion under the Lordship of Jesus Christ,” not the Communion’s Instruments and committees, that make the affirmations and commitments in the Covenant. It has never belonged to, nor should it ever become, the property of a particular Instrument or committee. The Covenant will be what the covenanting Churches make of it. And we are confident that the final text of the Covenant gives those Churches that do choose to covenant with one another on its basis the principles they need to restore the Communion. It is Scriptural, theological, Anglican and fit for the purpose for which it has been offered to the Communion.  Indeed, it is the only hope for restoring a common Communion life that has been all but destroyed. We urge all Churches willing to commit to a life of mutual responsibility and interdependence under the Covenant to sign and adopt promptly and fully. We note with a sense of encouragement that some provinces, like many in the Global South, have already made public assurances that this is their intention. Given the current structural uncertainty, however, we wish to emphasize the need for moving ahead quickly with all due procedural care.

But since there is no body currently recognized, either by the Instruments or the Churches of the Communion, as authorized to exercise the responsibilities of the Standing Committee of the Anglican Communion in coordinating the implementation of the Covenant, we think it is necessary and appropriate for the covenanting Churches themselves to fulfill this task initially by convening a provisional committee drawn from the Primates and ACC representatives of Churches that adopt the Covenant to coordinate the implementation of the Covenant within the Churches and dioceses wishing to participate.

This concept is hardly novel or radical and is substantially identical to that proposed by the Church of England in its final comments on the Ridley Cambridge draft of the Covenant. It would maintain the legitimate continuity of representation envisioned by the Covenant itself in Section 4.2.   And such a coordinating committee would, of course, be provisional and would function only until a Standing Committee as contemplated by the Covenant is established and has the approval of the Communion’s Instruments and covenanting Churches.   Indeed, one of the provisional committee’s urgent tasks would be to coordinate with the existing ACC standing committee to develop a body that can function as the Standing Committee of the Anglican Communion with the trust of the covenanting Churches as envisioned in the Covenant.

We conclude with the words of our colleague, Philip Turner, who recently addressed this topic in a way that merits repetition:

I believe the Covenant is the only hope we have if we wish on the one hand to preserve a communion that involves more than mutual aid and hospitality; and on the other, in doing so, avoid the creation of an international hierarchy. At this point, I must be utterly clear. From a human point of view our choices are extremely limited. Either we have a covenant with real consequences like the “two track” proposal or the Communion will collapse. Many provinces from the Global South that support a covenant with consequences will simply go their own way, and those who have rejected a covenant with consequences will be left with something that is a Communion in name only. To return to the beginning, I believe the Covenant is our only hope to arrive at our present cross in the roads and meet rather than part forever.

That hope, which derives from, is consistent with, and is sustained and animated by our larger hope in Jesus Christ as the head of our Church, now lies with the Churches of the Communion. We pray that they will seize this moment and use the Covenant to preserve and restore the Communion.

The final text of the Anglican Covenant has now been sent out for adoption by the churches of the Communion.  The slow process by which this text and its official dissemination for action has occurred has frustrated some, yet its persistent progress forward to this point at last puts the lie to the naysayers and early eulogists of the Covenant’s purpose.  Joined to the restarting of the Anglican-Roman Catholic international dialogue, to be focused on substantive matters of ecclesiology and moral decision-making, what seemed merely slow now appears to be the visible sign of a tectonic shift in global Anglicanism and Christianity itself.  It is one in which the Episcopal Church in the United States has placed itself on the far side of a widening channel separating the ballast of Christian witness, Catholic and Pentecostal, from marginal spin-offs of liberal Protestantism in decline.

And so some stock-taking is in order.  I would like to speak as honestly as I can about the Episcopal Church, of which I am and remain a member, as we enter this new decade.  The purpose of doing so is not to provoke response or to encourage reactive apathy.  Honesty is necessary, simply and straightforwardly, for anyone who seeks God’s will, and surely that is all of us, and especially those of us who are Anglicans in America and in the Episcopal Church.

To be sure, this is not a favorable time or place for honesty.  I am about to speak what, from my point of view, are hard things to receive.  But I do not wish at all to play into the greed for TEC’s failure that is fueled by the anger of some former Episcopalians and former Anglicans.  I do not count myself in this group. Nor do I want to confirm the consistent dismissal of traditional Episcopalians by others as defeatist and in love with misery. The moment of the Covenant’s finalization and ARCIC’s reinvigoration are far from miserable;  they betoken new promise!   More importantly, I do not want to discourage the many faithful Episcopalians who look for hope in the face of too many voices of hopelessness about their church and about most Christian churches.  There are many people, especially among the young, who are seeking to serve because they are in fact called;  and I believe they are called by God to serve in this strange Anglican place, but they are rightly questioning.  And there are many who are wearied of the struggle in this church over the past few years, and simply afraid of their own anger;  they neither wish to be challenged anew nor reminded again, and in so doing have failed to speak to the genuine questions that are now in our midst.

But true encouragement comes from honesty before God and self and the strength of purpose to serve in the face of disappointment or uncertainty.  Or so it should.  I know a young person who sneered at the faith of an Episcopalian – a more conservative person – who chose to leave TEC for another set of ecclesial structures.  “You would do such a thing”, this young person said to him:  “yours is the generation, after all, who invented no-fault divorce”.    In fact, in this case, the complaint was less directed at a purported hypocrite, than at what he perceived to be the witness of an impotent God, unable to garner the sacrificial steadiness of His adherents.   But either way, faith is scandalized by those who do not have the strength, nor certainly seek the strength, to stand in the face of upheaval.

I will come back to this at the close of my remarks: honesty need be neither angry, miserable, nor defeatist.  It should be the seed for hope, because it is the first and necessary turn to God who alone saves.

The Current Season

What is the difficult thing to speak, honestly?  It is this:  the Episcopal Church, as it has been known through the past two centuries, is no more, in any substantive sense.  TEC is simply no longer the church filled with even the strength of purpose we saw only 10 years ago – yes, even then, a church with a good deal of vital diversity and disagreement;  but a seeming sense of restraint over pressing these in ways that overwhelmed witness and mission.  And as a result, even then, it was church that was growing in outreach and faith.  That church, shimmering still with some of the vibrancy of love spent for the Gospel seen140 years before, even 90 years before, is now gone.  And TEC will not survive in any real continuity with this past and its gifts.

This is something we must face.  To be sure, I am not speaking here of this or that diocese or bishop or congregation or clergy person within TEC:  there are many through whose service the Gospel shines bright and the witness of the Kingdom flourishes.  I am speaking of an institution as a whole – not even in terms of its legal corporation, but in terms of its character and Christian substance given flesh in the Spirit’s mission.

1. There are some rather stark objective or quantifiable elements that force this taking stock.  For instance:

a.  TEC, over the past decade, and after a few years of reinvigorated growth, has plummeted in its active membership.  The statistics for Average Sunday Attendance (ASA) show a decline inching up towards 20% — or one fifth – from 1998-2008.   In many dioceses, the decline hovers around or over 30%.   In a diocese like Colorado (my own), the decline is 25% — a full quarter! –  and much of this comes after the defection of congregations and clergy to the AMiA in 2000.  These statistics are not newly publicized, although the national leadership rarely acknowledges them.  But they are, in the absolute sense, shocking.  TEC has lost between a fifth and a third of its participating membership in many of its vital geographic areas in but a few short years.

b.  The fact that average financial giving to the church per pledging family has actually increased over this time is a sign of willing support by this dwindling membership.  But it is also an indicator of a likely terrible collapse in resources some time soon.  One cannot expect fewer and fewer people to support to greater and greater extents the financial demands of a failing institution.  This is a bubble that is bound to burst soon, for personal and demographic reasons, and the result of this bursting threatens to be an astonishing unraveling in resources that will affect dioceses far-flung and poor, as well as nearby and seemingly well-off.   We shall hear of bankruptcies soon enough.

c.  It is a bellwether of this set of dynamics that several of our seminaries have faced or will soon face their own inability to continue in existence.  The demise of Seabury-Western, the selling off of the Episcopal Divinity School’s real estate assets, the well-known financial travails of Church Divinity School of the Pacific and General Seminary, not to mention the long-standing challenges of the Seminary of the Southwest – all this suggests not just that theological education in TEC needs a more rational institutional basis (something argued for some time), but that the “institution” is incapable of sustaining the theological education of its ministers, period.  This incapacity, it needs to be said, threatens more conservative as well as liberal seminaries.

On the latter front, and from my own particular experience as well as from an admittedly more subjective perspective, I would note that Episcopalian ministers and scholars generally have received some of the best-resourced educations within the Christian churches;  in their ranks are some of the most lively minds and engaging personalities. (Oh, how I wish we could better invigorate and sustain one another!) But they remain among the most intellectually lazy Christians I know, most of whom stopped reading rigorously years ago, prefer arguments based on prejudice, and have contributed virtually nothing to the Anglican and larger Christian theological forum for decades now.  There are exceptions, of course, some of them wonderful;  but the problem frankly colors the leadership across the board, from the top down and the bottom up, from Left to Right, Liberal to Conservative.  The Anglican intellectual tradition that is embodied by and that has derived from TEC is bankrupt, long deflated in comparison with even recent witness from other parts of the Communion.

The goodbyes here are hardly debatable as far as I can see, and the fact that they are shared, to some extent, by several other Christian denominations hardly mitigates the farewell’s stinging force.

2.  Perhaps more debatable is the moral unraveling of TEC – debatable among conflicted Anglicans, in any case, although not much among onlookers to our arguments.

a.  For 6 years now, TEC has descended into a morass of public and expensive civil litigation among its members and former members, mostly about who has the legal right to hold on to church property.   The excuses made by all sides in this travesty of evangelical witness, clearly and pointedly condemned by our Lord and by the apostle Paul, make for pathetic reading.  Meanwhile, upwards of $30 million dollars, by my reckoning – probably more – has been expended by the gentle Christian leadership of North American Anglicans, all the while claiming to take Luke 6:27-31 (among many Scriptural texts) seriously.    It is blasphemy, pure and simple, not entered into through passion’s fury, but through deliberation and careful, cold planning.

b.  Meanwhile, the public malice exhibited by Anglicans – many still members  of TEC, others who have left – one towards another, on blogs, and in public statements, has so tarnished the image of decency and sobriety among the followers of Christ in this family of churches that it is hard to see how the “woes” of the Jesus could possibly escape us.  May the Lord be merciful!

c.  Bound up with this spiritual  disintegration, given voice in lawsuits, idolatry (greed), and anger, have come calculating and Pharisaic twisting and whole-scale negligence of canonical order, ignoring precedent, creating it on the fly on Left and Right as if leaders were immune from the responsibility of their vows and unaccountable to the laws by which common life is properly secured, let alone gained through the grace of Christ Jesus.  Much – but by no means all — of this has come most visibly from the leadership of TEC, but it has trickled down to parochial levels – ignoring Eucharistic discipline and the responsibilities of being “stewards of the mysteries” of Christ; altering the gifts of liturgical order on personal whims, spewing misinformation from pulpits while indulging idiosyncratic spiritual predilections with complete disdain for the gifts of former generations.

d.  To be sure, much of this is simply bound up with TEC’s rapidly accelerating habits of despising tradition, and this from across the board of the theological spectrum;  something that amounts to the rejection of the Communion of Saints, and therefore a rejection of the Creed itself.  For some generations, the Episcopal Church was the guardian of liturgical and spiritual order among Anglicans, as much from a practical as from a scholarly perspective.  But this too has long slipped through our church’s fingers.

e.  I leave aside the notorious matter of sexuality, at least from a theological perspective.  But even from the vantage point of some kind of common sense prudence, what shall we say to this?  It is hardly “homophobic” to make this observation: The attempt that the majority of TEC’s leaders have made to normalize the sexual behavior of a tiny minority of people, and then to build normative moral and even biological principles upon this behavior designed to restructure the form and character of human relations in general, including marriage, family, and civil order,  will surely go down as one of the great follies and social distortions of the late 20th and early 21st centuries.  That TEC has now so clearly committed itself to this project remains an astonishing act of moral betrayal, intellectual irresponsibility, and self-destruction, done brazenly in the face of the endemic needs of the Communion’s majority of members whose own social fabric – again, leaving aside theology altogether – cannot sustain such self-regarding actions by their “friends”.

TEC has no more moral capital in the bank.  It is all gone.

3.  And so, to the missionary accounting.

For the consequence of this squandering of resources is simple unfaithfulness in the great calling of the Christian and Christian Church:  proclaiming the Good News of Jesus and His Kingdom, drawing others to such faith, teaching the commandments of the Risen Lord, and praising God before creation as a people redeemed and reconciled.

Of all times to run from this calling, when the roots of Christian faith and life have been so steadily and severely weakened in the West, and when that faith and life are but new shoots elsewhere, however vigorous in the short run, nonetheless under enormous threat!  Every study made of Christian commitment in America (and in the West more largely) demonstrates the current vulnerability of Christian witness, especially among the young.  Yet TEC has become the (necessarily shrinking) institution of the aging, who have less and less to offer to others of the light given in Christ in a time of increasingly desperate spiritual need.

Meanwhile, there are all kinds of reasons to think that an ongoing economic and political “progress” among non-Western nations – Africa especially – is unlikely.  The imbalance of resources among nations shows every sign of continuing and increasing here, and with it, the peculiar relationship of Christian responsibility between West and “global south”.  In the face of this, TEC’s insouciance to its location economically, morally, and historically, is hard to accept as anything but hardness of heart.  The notion that TEC’s moral agenda will ever be of use to other cultures springs in part from a refusal to see that American material blessing hangs like a curse around the necks of those who take such blessing as an excuse to see everyone else in their own image and to insist that the world belongs to them and they have nothing to give up.

As if there were nothing to fear, in a world where all things of importance come upon us “like a thief”!  Do we think that we will escape when others have not?  Our laziness before the inevitably gripping realities of death, procreation, sacrifice, and necessary and hard-won courage has left us empty before the future.   As an integral ecclesial institution, TEC has become a hollow vessel.

And it is hard for me to say all this – after almost 30 years of ministry, once high hopes, and actual experience for some brief but glorious times, if mixed with struggle, of witness in all of its giving, forgiving, and abundantly receptive modes, bound to persons whose lives once shared are now the fodder of division without quarter.   There are days we weep.

But one must say all this, nonetheless.  The young especially – but all of us! — need honesty and bravery, not collusion in whitewashing and indulgence.  The poor need strength and perseverance and generosity, not constantly re-jigged strategies of self-justification from the wealthy.  The sinful need the offer of God’s promises of redemption and newness of life, not the insistence that those who offer are something other than the beggarly sick like them.  All is not well, and this we have long known:  thanks be to God who gives us the victory in Jesus Christ!

It is on this promise of victory in Christ, not on the integrity of the Episcopal Church or something called Anglicanism or even some “greater” Christian body apart from the body that is Christ’s, that we move forward.  The world’s and the Christian Church’s moral compromise, economically and politically has, over the past century (not decade!), provided a sad spectacle of ecclesial treachery, marked by only some brushes of light, though with countless individual offerings enlivening the more somber scene.  Few have resisted this compromise, from either Left or Right on the theological spectrum.  Certainly not Anglicanism as a whole, such that our Anglican vocation could arise from a deserved self-satisfaction.  This could never be.

The New Season

But there is a reason to be brave and to be strong, through the pleading for divine grace and its promised self-giving.  For Anglicanism’s witness has been valuable in all this, and still has a gift to offer other Christians and the world at large.  If not to a superior moral achievement, her witness has been to a certain realism and penitence, politically and otherwise.  And, to a remarkable degree, Anglicanism has also embodied a persistent hope that has been peculiar in its modesty, and in its willingness to humble itself before the Spirit of Christ, a convergence that has in fact meant missionary release along with its internal disarray.   To me, this moment, in which the tectonic shift of the Anglican Communion now surfaces into view, is one of enormous hope and a testimony to the grace of God in a continued calling.

The Anglican Covenant, in its final form, points to the likelihood of a growing core of covenanting Anglican churches – the Covenant becomes “active” as soon as any church adopts it – whose critical mass will soon shift the character of decision-making as a whole among the Instruments.   TEC’s place in this process, even should she presume to adopt the Covenant  (which at present could only be in a posture of already-set disregard of its meaning and purpose), is simply one of entering a current that is now gathering force in another direction than her own insistence on isolated and unrecognized sexual prophecy.  She has become irrelevant to Anglicanism’s own missionary calling and the rising willingness to meet it.

I am not counseling people to “leave” TEC;  I have never done so and do not do so now.  One must let the processes of the common church unfold, obediently.  God shepherds His people, wherever they may be. These processes, however and now more clearly than ever before, involve the Anglican Communion’s movement into a more focused global witness that will no longer be substantively restricted by TEC’s official distractions.  And the Covenant, founded on a commitment to mutual care and accountability in the gifts of Christ, will prove a means by which faithful Anglicans, in TEC and elsewhere, will also be able to join in this movement.   How exactly that will happen, in terms of structure and institution, is not yet known; but happen it will.  That I am willing now to say clearly.

So that what I am doing now is offering both an assessment of where we are, but also a prediction of where we are headed.   I am not at all sure what will take the place of the atrophied TEC that we now see embodied in our governing structures.  But I believe that, from the Communion’s missionary perspective, this will include, surely, the reinvigorating reconfiguration of existing and healthy dioceses, and the refashioning of broken ones and the building up of new things.  Anglicans have been through these upheavals before in similar and different ways: 1559; 1658;  1785; 1918; 1960’s Africa or 1990’s Rwanda.   At each stage, an opening up, that emerged from a going down.  And at each stage, there emerged a larger breadth in Christian communion, however contradicted by the failings of our apostolic calling.  God’s grace is bigger and wider – and so Anglicanism, with its evangelical-charismatic and scripturally ordered worship, is now called to enter the mission of reconciling grace the contours of which Catholicism and Pentecostalism have most clearly described for the coming century, with Eastern Orthodoxy offering a parallel vocation.

And we – older and younger – can, because we must, bear with a continued hope that, though still demanding new orderings, does not seek the overturning of the hope of the past.  Still, in Christ, we hope for common prayer in the Scripture’s formation;  still we hope for ordered debate and discernment;  still we hope for mission that reforms us even as it touches the world;  still, for unity.  These have been among the Anglican essentials of life in the face of challenge; they remain so; and they continue as means of grace that can strengthen the ministry of other Christian bodies and draw us closer together.  But now we must appropriate these essentials, in all humility, for a deliberate mission of seeding the Kingdom – every one of us, a sower who walks in the wake of the great Sower’s passing through the fields.  What could be more enlivening than such a vocation and invitation?   Let those young people who are called to service in this way be encouraged at this time, above all times!

It is important that grand plans and strategies be put aside now that the direction of our future has emerged so clearly.  The legal maneuverings will continue with who knows what fruits;  but we know the larger outcome now and the larger outcome’s fruits are more clearly promised, and perhaps we can lay aside the anxiety of the past few years more fully and carry forward with the mission we have been given.   Anglicans in North America, encouraged by the Covenant Working Group itself (see its most recent Commentary on their revisions), can, through their dioceses and otherwise, formally “affirm” the Covenant, and in so doing formally join themselves to the core of the Communion that will, I hope, quickly adopt the Covenant and become the motor quickening the shift now taking place.  Even as some of us are still members of TEC, we are no longer standing on the far shore of the widening channel but, like the worthies of Hebrews 11, we are joined with those “not apart from whom” we will have our faith made perfect.

The legal and institutional aspects of this are less important to nail down, frankly.  For there is much to cooperate on, as Anglicans even in America become anew missionaries of the Gospel of Jesus in the expanding landscapes of unbelief.  There is much over which to mend relationships with a view to going forward.  But we cannot go forward without properly understanding that this is now God’s work, and not the arena for individual self-assertion, including the building up of structures only loosely capable of breaking free of individual rancor.  God has not yet finished breaking us down in order to make us strong in hope and gentleness.  At least, we should be ready for such work, because it is a work we need for the sake of the world.

My wife has been studying the miracle of grace that permitted the small village of Le Chambon-sur-Lignon to harbor and save scores of Jewish fugitives during the 1940’s in France.  Recently, she procured some copies of sermon notes written by the village pastor, André Trocmé, sermons now preserved at Swarthmore College.  That Trocmé formed this village in its capacities of witness no one disputes.  In one sermon, given to his flock in June, 1940, he speaks of the need for all the people of the parish to “humble” themselves before God, seeking pardon for the sins in which they are complicit, sins that have caught France up in the Nazi grip and collaboration.  But self-humiliation, Trocmé says, must be properly understood.  “We must not confuse self-humiliation with discouragement… faith is not lost; … rather humiliation takes our faith more deeply into God, and kindles within us a stronger will to serve Him”.  Nor should our humiliation somehow be projected onto anyone else but ourselves!  Finally, in humbling ourselves before God, we must guard against giving ourselves over to anything other or less than the Gospel itself.  We must “abandon all our Christian divisions… abandon our suspicion and hatreds… abandon our slavery to the ways of the world… We resist the world by loving it freely, without cowardice, but bravely”.

The Episcopal Church, as we have known it and given ourselves to its ministry, is over.  But the Gospel is alive, and the Church that is Christ’s Body given, takes us to a new place.

2. Section 4 of the Covenant specifies two procedures by which churches may enter the Covenant. Paragraph 4.1.4 deals with churches that already are recognized as members of the Anglican Consultative Council, one of the four Instruments of Communion. Paragraph 4.1.5 deals with “other churches.”

Member Churches

3. Paragraph 4.1.4 provides that “Every Church of the Anglican Communion, as recognised in accordance with the Constitution of the Anglican Consultative Council, is invited to enter into this Covenant according to its own constitutional procedures.” In our paper “Communion Partner Dioceses and the Anglican Covenant,” published on September 8, 2009, we have previously addressed the application of paragraph 4.1.4 in the unique constitutional framework of TEC:

These provisions of Section 4 deferring to the constitutional procedures of the member churches on matters of internal governance reflect a principle that already has been articulated in the first three sections of the Covenant (3.1.2 and 3.2.2) and has long been recognized as fundamental to Anglicanism. This principle is not in dispute.

That the reference in 4.1.4 to member churches of the ACC includes the constituent and extra-provincial bodies of those churches is apparent from the fact that not all churches recognized as full members of the Anglican Communion are direct members in their own names of the ACC. The extra-provincial churches are generally (with the exception of Ceylon) not listed as members of the ACC, but are represented through their primatial provinces. In the absence of an expressed intention to excommunicate or otherwise exclude these churches through the covenant process, one must interpret 4.1.4 to include member churches and all their constituent and extra-provincial churches.

…

Thus, in the case of TEC the relevant constitutional procedures for adopting the Covenant include direct adoption by its autonomous dioceses, which are the highest governing bodies within their territory and enjoy a particular constitutional prerogative concerning constituent membership in the Anglican Communion. Indeed, given the autonomy of TEC dioceses, central bodies such as General Convention could not commit individual dioceses to the Covenant over their objection. Thus, when the Covenant is sent to the member churches, dioceses are appropriate bodies to respond at that time under the unique constitutional procedures of TEC.

This long-standing polity of TEC is now being challenged by the Presiding Bishop in civil litigation that she has commenced against departing dioceses and parishes…. This civil litigation is in the early stages and final resolution of inevitable appeals will not come for several years.

In any event, this remains a dispute that must be resolved within TEC and one in which Communion Instruments must remain neutral as required by the fundamental principle of constitutional integrity of member churches that is recognized explicitly in paragraphs 4.1.3 and 4.1.4 of the Covenant.

http://www.anglicancommunioninstitute.com/2009/09/communion-partner-dioceses-and-the-anglican-covenant

4. It must be recognized that the eventual outcome of existing litigation is uncertain. It may be resolved in the Presiding Bishop’s favor and dioceses would lose their traditional autonomy. But it may also be resolved in the dioceses’ favor. In any event, decisions by dioceses to commit to the Covenant need not await the final outcome of all the litigation.

5. These procedures unquestionably will give rise to possible confusion among the churches and Instruments of the Anglican Communion. The Covenant has been sent to member churches as listed on the ACC membership schedule, including “The Episcopal Church.”  How does the Communion interpret responses coming back that vary by diocese? This clearly will require further thought and decisions by the Communion Instruments. It is important to emphasize, however, that reconciling any differences between those churches that sign the Covenant and those that are currently members of the Anglican Consultative Council will be something the Communion will have to deal with in the coming years in any event since it is unlikely that all current member churches will enter the Covenant. There will be opportunities for each of the Instruments to address this issue in the coming years.

6. For his part, the Archbishop of Canterbury has already addressed this question, in part, in his introductory remarks to the Covenant:

Beyond that, what’s going to happen? It’s hard to say as yet, but the Covenant text itself does make it clear that at some point it’ll be open to other bodies, other Ecclesial bodies as they’re called, other Churches and communities to adopt this Covenant, and be considered for incorporation into the Anglican Communion.  Meanwhile, it’s open to anybody that wishes to affirm the principles of the Covenant – to say that this is what they wish to live with.

7. Similarly, the Commentary prepared by the Covenant Working Group on the final text noted that:

Recognised in most cases as “Provinces”, these national or regional Churches are the historical bodies through which the life of the Anglican Communion has been expressed, and they are the primary parties for whom the covenant has been designed. If, however, the canons and constitutions of a Province permit, there is no reason why a diocesan synod should not commit itself to the covenant, thus strengthening its commitment to the interdependent life of the Communion.

Other Churches

8. Paragraph 4.1.5 deals with churches not currently listed on the ACC membership schedule and provides as follows:

(4.1.5)  The Instruments of Communion may invite other Churches to adopt the Covenant using the same procedures as set out by the Anglican Consultative Council for the amendment of its schedule of membership. Adoption of this Covenant does not confer any right of recognition by, or membership of, the Instruments of Communion, which shall be decided by those Instruments themselves.

9. This raises two questions: (1) what are the “procedures as set out by the Anglican Consultative Council for the amendment of its schedule of membership”; and (2) who can issue the invitations to the other churches under this paragraph?

10. As to the first question, it is important to note that these procedures have apparently changed recently, although they have not been announced publicly. The ACC constitution as previously in force and as still posted at its website reads as follows:

3. Membership

a. The Council shall be constituted with a membership according to the schedule hereto. With the assent of two-thirds of the Primates of the Anglican Communion, the council may alter or add to the schedule. “Primates,” for the purposes of this article, shall mean the principle Archbishop, bishop, or Primates of each of the bodies listed in paragraphs b,c and d of the schedule of membership. (Emphasis added.)

However, Canon Kearon’s cover letter sent out with the Covenant to the member churches on December 18, 2009, includes the following:

Section 4.1.5 of the Covenant refers to the ‘procedures as set out by the Anglican Consultative Council for the amendment of its schedule of membership’. These procedures are to be found in the Articles of Association of the Anglican Consultative Council 2.2, which state ‘with the assent of two-thirds of the Primates of the Anglican Communion (which shall be deemed to have been received if not withheld in writing within four months from the date of notification) the Standing Committee may alter or add to the Schedule’. (Emphasis added.)

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. 
11. On the second question, “who can invite,” the Covenant is explicit in saying that this may be done by the “Instruments.” On its face, this means that any of the Instruments, e.g., the Archbishop of Canterbury or the Primates’ Meeting, could issue such an invitation, which would then invoke the procedures indicated: approval by the Standing Committee and consents from the Primates.

12. None of this is meant to suggest that such an invitation is necessarily imminent, but the procedures are far more flexible and responsive to developing circumstances than many have been led to believe.

13. With these principles in mind, we urge all churches and dioceses interested in committing to the life of mutual accountability and interdependence required by the Covenant to adopt and affirm the Covenant as soon as practicable and communicate their decisions to the Communion and its churches. We note that paragraph 4.1.6 provides that “This Covenant becomes active for a Church when that Church adopts the Covenant through the procedures of its own Constitution and Canons.”  Thus, the Covenant will become active as soon as member churches begin to adopt it, and the Global South churches have indicated their intention to begin doing so as early as April 2010. By committing to the Covenant, a church or diocese will immediately begin to share in the Communion life represented by the Covenant even as the formalities of the Communion Instruments necessarily will take longer to implement.

Fr. Harris takes issue with almost everything Bishop Stanton has to say save for one important point. With the Bishop he holds that individual dioceses have a right to sign onto the proposed Anglican Covenant!  Coming from the mouth of such a staunch progressive an admission of this sort is both startling and welcome.  Nevertheless, Fr. Harris has a problem. He grants the right of a diocese to sign on but he objects strenuously to the exercise of this right. His objection takes several forms and each deserves attention because each displays in its own way the perilous state of our common life.

Though later in his argument he contradicts this statement, he notes (correctly) that the reason for a diocese exercising such a right is “to affirm and maintain a connection with Canterbury and/or other Provinces quite independently of what might happen at General Convention.” Fr. Harris believes that independent action of this sort will have several baleful results that, in combination, subvert national and regional churches. So he claims first that diocesan sign-on renders “any discussion in General Convention moot.” He goes on to say that if indeed discussion in General Convention is moot (i.e., deprived of any practical significance), direct relations between dioceses and the Communion will completely subvert national and regional church structures. Finally, subversion of national and regional churches will render a “covenanted worldwide church directly made up of dioceses” (rather than national churches).

I take it that the heart of Fr. Harris’ argument is that dioceses have a right to ratify the Covenant but that to do so would prove destructive to the integrity of national churches and in the end to the Communion as a whole. The charge is serious and deserves careful scrutiny.

The place to begin is with the one point Fr. Harris appears to grant Bishop Stanton—a diocesan right to pass a resolution supporting and signing onto the Anglican Covenant. Fr. Harris grants this right for contingent reasons only, namely, that at present “there is no canon or even legislation requiring restraint from doing so.” Though he does not address the issue directly, one is forced to the conclusion that if there were such a canon or such legislation Fr. Harris would say that a diocese has no such right.

It is at this point that a fundamental disagreement between Bishop Stanton and Fr. Harris appears. Fr. Harris claims that Bishop Stanton believes the right to be unqualified because TEC is “a confederation of dioceses” rather than a “local franchise” of a larger corporation. It would be more accurate to say that the Bishop holds that TEC is a “voluntary association” of dioceses because that is the way in which it is constitutionally and legally defined. Be that as it may, Fr. Harris objects that TEC is not to be understood in this way because, as Bishop Stanton himself freely admits, each new diocese is required to make an “unqualified accession” to the Constitution and Canons of The Episcopal Church. It is clearly the view of Fr. Harris that an unqualified accession means that the national church stands in a hierarchical relation to the several diocese of which it is comprised, and that these diocese are subject in all ways and at all times to the canons and legislative actions of the General Convention by which they are governed.

Fr. Harris makes this point by assertion rather than argument, and he does so knowing full well that the laws of voluntary association were not understood in this way by the original drafters of TEC’s constitution, and are not understood in this way by the present civil laws governing voluntary associations. In the minds of the framers of TEC’s constitution and in contemporary jurisprudence the laws governing voluntary associations do not limit the rights of individual members in the way Fr. Harris asserts.

Here we come to the first point I wish to make about the substance and manner of present progressive argument. The substantial issues have to do with the nature of TEC’s constitution. Communion Partner Bishops along with ACI have argued consistently and in great detail that TEC’s constitution is indeed unusual within the Anglican Communion in that it neither sets up a metropolitan ecclesial authority nor a corporation enjoying a hierarchical relation with its various franchises (link). The unqualified accession required of new dioceses applying for membership in the General Convention as a voluntary association does not require of them submission to all future canons or constitutional changes. It does not require them to refrain from passing diocesan canons contrary to those of General Convention. It does not even require of them permanent membership. These points have been argued in great detail, objections have been lodged, replies have been given, and briefs filed with the courts by both sides. As we wait the judicial determination of these issues, we find in Fr. Harris’ post only more and repeated assertions!

TEC has before it a substantial disagreement about the meaning of its constitution. What Fr. Harris has offered in his response to Bishop Stanton, however, is not an argument but an assertion; and it is at this point that a defining characteristic of current forms of public speech within TEC appears in rather stark relief. There is little argument but much assertion! This mode of public discourse is a cause for alarm because, as the history of the 20th Century so well illustrates, when assertion takes the place of public argument, one is confronted not with the give and take of a free society, but with the assertion of power on the part of those who control its mechanisms.

For this reason alone, Fr. Harris’ response to Bishop Stanton should cause alarm among both progressives and conservatives because in his remarks assertion constantly replaces argument. Indeed, his prudential worries about diocesan sign-on take the form of unsubstantiated assertions designed to draw his readers into the alarm he, himself, feels. So we must ask is it really the case that, as Fr. Harris claims, “marshalling dioceses to sign on now, if successful, can be a way to make any discussion in General Convention moot?” I suppose it might indeed render the discussion moot if a significant number of dioceses were to do so. However, if indeed a substantial majority of dioceses were to “sign on” prior to action by the General Convention, the dioceses would have done no more than exercise a right they have and so rightly rendered such a discussion and action moot. The more likely circumstance, however, is that a few, a very few, dioceses will take such an action. How will the action of a few render the discussion of General Convention moot? It would not in any way do so. If the General Convention were to sign on, then a majority would have expressed its agreement with those who did so independently. If the General Convention were not to sign on, then a minority would have exercised their right to demur. In neither case is the discussion “moot.”

Now for another assertion! Diocesan sign on independent of General Convention will “further the direct relationship between dioceses and the Communion completely (emphasis added) subverting the national and regional church structures in the process.” Given the fact that as yet arrangements have not been made by any of the Instruments of Communion for direct diocesan sign-on for all the churches of the Communion, a statement such as this ought to be placed in “scare quotes.” The facts are these. Dioceses within TEC contemplating such an action claim the right to do so under TEC’s Constitution, not under a general invitation by the communion’s Instruments to all dioceses of the communion. Acting lawfully under TEC’s constitution is hardly subverting TEC and has no effect on other churches of the Communion. Remember, the Communion has been defined since the 1930 Lambeth Conference as a fellowship of “dioceses, provinces, or regional churches,” a definition incorporated into TEC’s own constitution.

It is nonetheless true that dioceses that might sign on prior to a discussion by the General Convention will do so in order to signal not only their support of the proposed covenant but their firm belief that TEC will not vote for ratification. Indeed, given the actions of the recent General Convention that make way for both “gay blessings” and the consecration of partnered gay Bishops (and so run directly counter to Sections One and Three of the proposed covenant) many in these dioceses hold that TEC has already given a provisional No to the covenant. For them Fr. Harris’ lament that early sign-on means “a loss both for Dallas and the rest of the church”, given the declaration by the last General Convention that it is now time to move on, appears at best disingenuous. The time for dialogue is now past it would seem, so what is to be missed?

The motive for early ratification is thus not to subvert national and regional church structures but, as Fr. Harris at one point states, “to affirm and maintain a connection to Canterbury and / or to other Provinces independent of what might happen at General Convention.” No matter what the motive, however, it is hard to see why early action on the part of a diocese or even a group of TEC dioceses would completely subvert national and regional church structures of the entire Communion. These structures would certainly continue to function. Complete subversion of national and regional structures seems a far-fetched result of sign-on by TEC dioceses in exceptional circumstances. What diocesan sign-on might do in such circumstances is show that there are dioceses that do not accept the actions of their national and regional structures. In cases where the Instruments of Communion share this disagreement, a request to the Instruments to sign on as dioceses would express a desire to establish full communion with the dioceses and provinces represented by those Instruments. They would in no way be aiming to create anarchy within the Communion for a simple reason. They would be acting for the sake of maintaining relationships with the communion rather than seeking to further diocesan autonomy.

Here we come to the real issue that troubles Fr. Harris. He worries next that “If the Communion is about dioceses in covenant, then the future of the communion will no longer involve national or regional churches at all (emphasis added).” It will become without remainder a “covenanted world wide church directly made up of dioceses.” Frankly, a result of this sort seems beyond the realm even of remote possibility. If, say, dioceses whose Bishops belong to Communion Partners were to take an action of this sort, and if a way were found to relate these dioceses in some direct manner to the Instruments of Communion, how would that subvert national and regional churches. I can’t imagine people in Singapore or North Africa even thinking such a thought! I certainly cannot think of the Archbishop of Canterbury doing so. Even more I cannot imagine the delegates to General Convention announcing the dissolution of this structure because Communion Partner Bishops and Dioceses had signed on independently.

So why does Fr. Harris worry about such an unlikely result? Given the other things he has to say in this posting, it is difficult to avoid the conclusion that his actual concern is that the position of TEC within the councils of the Communion may, because of its recent actions, be in jeopardy. To counter such a possibility he holds out the possibility of the collapse of the provincial structures of the Communion as a whole if any space is given for diocesan sign-on. It appears that what he wants is a corporate form of Anglican governance that gives each national church, autonomy in its own sphere. Parenthetically, I must remark that it is difficult to see how, if Fr. Harris’ view of autonomy were to prevail among Anglicans, they would any longer be able to lay claim to the term Communion.

Be that as it may, it is important to ask what the relation between provincial and diocesan structures ought to be within Anglican polity. It would have been more helpful if Fr. Harris had raised this question directly rather than making a somewhat concealed case by way of assertion for the primacy of national structures over diocesan ones (and apparently over communion ones as well). The Archbishop of Canterbury has clearly indicated that he believes that dioceses have priority within Anglican polity. Ephraim Radner has argued on the basis of good evidence that provincial structures were intended from the outset to serve an administrative function—one that does not subvert the primary responsibility of the local bishop for the doctrine, discipline and worship of the church (link). This question is of fundamental importance for Anglicans throughout the world. Voices such as these are due a considered and well-argued response rather than a contrary assertion.

I hope I have accurately presented both the substance and the manner of Fr. Harris’ presentation. I cannot complete this response, however, without noting another thing about the manner of his argument. In addition to the fact that he presents his case by assertion rather than argument, he in effect accuses Bishop Stanton of being disingenuous. Thus, he concludes with an ad hominem attack on the Bishop’s motives.

I have been unable to avoid this conclusion. Fr. Harris begins by saying that the reason the Bishop takes the position he does is to “affirm and maintain a connection to Canterbury and / or to other Provinces quite independently of what might happen at General Convention.” At this point he takes the Bishop at his word. However, his title suggests suspicion about the Bishop’s motives. So he says that the Bishop “barks up the wrong tree so that we won’t notice the bite.”

What does he mean by the title? Apparently he means that that the Bishop’s real desire is to establish the right of a diocese “to autonomy apart from its existence within The Episcopal Church and its canonical limitations.” He then goes on to say that the Bishop wishes to establish this right in order to keep TEC from preventing a diocese from leaving with its property.

Though it is not his primary purpose, it certainly is the case that Bishop Stanton wishes to establish the autonomy of dioceses apart from The Episcopal Church and its canonical limitations. My question is on what grounds does Fr. Harris make the assertion that Bishop Stanton’s real motive is protection of property? By this charge, Fr. Harris questions Bishop Stanton’s transparency and integrity.

I have worked with Bishop Stanton for many years and have never experienced him as a man who dissimulates. His conduct in respect to the property of Parishes that wished to leave the Diocese of Dallas has been to negotiate a settlement and so avoid going to court. Further, he has no design to take the Diocese of Dallas out of TEC. It is true that in reaction to dioceses that have left, the Presiding Bishop has stated publically that her motive for taking the actions she has is to secure property. However, there is no indication that Bishops Stanton has spoken or acted either to secede from TEC or gain control of property. On just what basis does Fr. Harris level the charge that these are his true intentions? As far as I can tell these charges are leveled on the basis of no evidence what so ever.

Which brings me once more to the manner rather than the substance of argument! Another indication that public discourse has devolved into a struggle for power is the substitution of personal attack for hard evidence and civil argument. The personal slur has become a favored mechanism for establishing dominance. It is a mechanism for political control. It is not the sort of speech that promotes freedom, let alone the Communion of Saints. Not a happy thought, but one that accurately identifies where we are as a church!

In what follows we pay attention to sections of the first letter, where the President of the House of Deputies spoke at some length of her interpretation of the resolutions to be voted on at the South Carolina Diocesan Convention. These remarks seek to be substantive in character; presumably they represent her own considerations as well as those of the Executive Council of The Episcopal Church. For that reason they deserve comment and evaluation of their own.

At the outset, we note that it is the duty of the President of the House of Deputies to preside over that body. Neither she nor the Executive Council is the constitutionally-designated Ecclesiastical Authority in the Diocese of South Carolina. It is not her role to instruct or interfere with the lawful diocesan Authority.

It remains an open question what the legal effect of resolutions passed at General Convention genuinely is. We have, for example, heard it claimed that there is a distinction between “descriptive” and “prescriptive” resolutions and that controversial ones (D025 and C056) were “descriptive.” It is hard to know how a non-prescriptive resolution could not be described, as the South Carolina resolution intimates, as without effect in that Diocese. But we proceed on the logic of the letter, where something more seems to be at stake.

1. Anderson Text:

Without the omitted language, someone reading the Resolution could come away with the idea that no departures from the doctrine, discipline and worship of the Church of England are permitted at all when the expectation has always been that alterations would be made. The Preface, set forth in October 1789, acknowledges our debt to the Church of England for this Church’s “first foundation and a long continuance of nursing care and protection” and goes on to quote from the Preface of the Book of Common Prayer of the Church of England at that time that “the Forms of Divine Worship are alterable and changes should be made according to the various exigency of times and occasions.”

Ms Anderson apparently believes that departing from the teaching of the Communion, or from the language of the BCP in respect of blessing in Christian marriage (now to be extended, contra the BCP, to same sex couples, as permitted by General Convention 2009) constitutes an ‘expected alteration.’ A ‘various exigency of time and occasion’ is presumably General Convention 2009’s exigency of wanting to permit rites for same-sex blessings, without addressing the constitutional legality of doing so without changing the BCP in accordance with this desire.

2. As for the Oath as cited by Anderson:

I do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, and to contain all things necessary to salvation; and I do solemnly engage to conform to the Doctrine, Discipline and Worship of the Episcopal Church.

Anderson apparently does not realize that issue is being taken with the constitutionality of what General Convention has done precisely because it is at odds with the Oath she herself sees as central. General Convention has not solemnly engaged to conform to the Doctrine, Discipline and Worship of the Episcopal Church because it has given permission to Bishops to bless same sex unions without bothering to change the marriage blessing rites the BCP regulates as in accordance with such Doctrine and Discipline.

3. Anderson text:

However, declaring actions of General Convention to be null and void and having no effect in a diocese is contrary to our polity and our Constitution and Canons.

What is being said is that the Constitution and Canons have been undercut or violated by the latitude General Convention has given in its resolutions D026, C056. Bishop Frey made this point quite clearly on the floor of General Convention. It would therefore be up to Ms Anderson to show that the Constitution and Canons were not violated by these resolutions. That is the point at issue. General Convention is not above the Constitution and Canons, nor is it identical with them. That would be to make nonsense of the very notion of Constitution and Canons. An assertion is not a legal fact. This is the matter the resolution is SC has concern about, precisely because it wishes to be in conformity with the Constitution and Canons of TEC on this issue.

4. Anderson text:

All dioceses must make an unqualified accession to the Constitution and Canons of The Episcopal Church.

Followed by:

The General Convention is the governing body of the Church and the authority of all other entities and offices comes from General Convention.

Here again, without any argument, the Constitution and Canons of the Episcopal Church are simply conflated with General Convention, as though they were one and the same. But this is belied by the Constitution’s insistence that General Convention, should it seek to undertake to alter the Constitution, must do so by specific procedures so stipulated by the Constitution itself, and this is the requirement if the Constitution is to be changed. The General Convention is under the authority of the Constitution. It is not identical with it. As we have repeatedly demonstrated with historical and legal arguments, dioceses are not made subordinate to General Convention by our Constitution. Conclusory assertions to the contrary from one who has no constitutional authority in the Diocese of South Carolina are not persuasive.

As for ‘unqualified accession.’ It has been pointed out at numerous times that accession, as a legal term, is in the gift of the one acceding, and to speak of ‘unqualified’ does not mean ‘irrevocable.’ To the contrary, in the legal context from which the term ‘accession’ is drawn, a qualified accession is well-known and understood as a partial acceptance subject to stated qualifications or reservations. Moreover, given the First Amendment implications of acceding to membership in religious associations, legal authorities suggest that any attempt to make such an accession to membership irrevocable would be unenforceable. To simply assert this, as does Ms Anderson, is to compound the error.  Moreover, accession is to the Constitution and Canons, not to General Convention (or the Executive Council) and indeed this is what is being argued is under threat.

5. Anderson text:

So, adoption of a resolution declaring an action of General Convention null and void is itself, a nullity.

Not if the action is in violation of the Constitution. Moreover, the resolutions were described by proponents as ‘descriptive.’ This raises the question as to what legal character a resolution has at all. And we note that liberal bishops have repeatedly said that they are not bound by General Convention resolutions.  One need only point to resolution B033 from 2006 as one instance among many.

Conclusion

What Anderson has achieved in this formal letter to South Carolina is a demonstration of what happens when General Convention undertakes to permit actions without bothering formally to amend the Constitution and Canons of The Episcopal Church. A similar demonstration is being made in the Presiding Bishop’s recourse to a Canon involving renunciation of orders so as to deal with a problem it was never designed to address. The consequence of such action is the creation of a view of Holy Orders and a ‘denominational regularization’ of them without any counterpart elsewhere in the Anglican Communion. The point is this. To use ‘abandonment of communion of this church’ to refer univocally to TEC makes TEC into its own, private communion.  If this be the case, TEC is defining itself and its orders in a way different from that of the Anglican Communion as a whole.  For Anglicans, communion is not defined within the circumference of a single province and orders are not conferred within a single province alone.

By arrogating to herself the role of commentary, evaluation, and exhortation, the President of the House of Deputies adopts an authority vis-à-vis the Diocese of SC nowhere granted to her by the Constitution and Canons she claims to be defending. Was the President of the House of Deputies elected with a clear remit to function in this way vis-à-vis the Dioceses of The Episcopal Church? Naturally, the President of the House of Deputies might wish to write a letter to the Diocese of South Carolina and encourage attendance at General Convention. But here the intention is to speak on behalf of the Constitution and Canons as well as on matters of doctrine, church history and theology. Where do the Constitution and Canons grant her authority to address the Dioceses in this way, and is election to this presidential office intended to grant her authority as here presumed?

The questions are serious ones because it appears that the elected leadership of The Episcopal Church is now seeking a clear authority and hierarchy above the Bishops of the Church and also above the Constitution and Canons, without at the same time following the legal procedures necessary for adopting and exercising such hierarchy, constitutionally. If there are those within TEC who desire constitutional reform of TEC polity along the lines of a corporate model or the hierarchical structures of churches such as the Church of England, the Roman Catholic Church or the Orthodox Churches, there are constitutional procedures to follow.

So to receive a notice from an elected official which purports to interpret doctrine, discipline and worship in this church, and to defend the Constitution and Canons, without an obvious warrant for doing so from the same Constitution risks exposing the very problem South Carolina and other dioceses have identified as needing address.