Conciliation Accord: What It Means

Written by:
Saturday, March 9th, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the Amicus Brief itself:

For a summary of the Argument regarding the Constitution and Polity of TEC:

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

March 09 2013 | Articles

Bishops and Civil Partnerships II: Still More Questions Than Answers

Written by:
Friday, January 18th, 2013

Two weeks since the House of Bishops’ decision on civil partnerships finally hit the headlines, many questions (such as those raised in my earlier article, written before media interest in the story) remain unanswered. Some of the processes are, however, beginning to become clearer, though these in turn often provide more questions than answers. What follows attempts to map what has happened, read between the lines to highlight key questions that remain, and point to some of the contextual factors that may have shaped the decision. A further article may explore some of the lessons that need to be learned from what has undoubtedly been a presentational disaster, irrespective of one’s views on the decision itself. That disaster does not bode well for the handling of this contentious issue by the church’s leadership in the coming year.


January 18 2013 | Articles

Church of England Bishops and Civil Partnerships

Written by:
Wednesday, January 2nd, 2013

Tucked away within a wider press release just before Christmas it has been announced that at their December meeting the Church of England’s House of Bishops decided that “the House does not intend to issue a further pastoral statement on civil partnerships” and that “the requirements in the 2005 statement concerning the eligibility for ordination of those in civil partnerships whose relationships are consistent with the teaching of the Church of England apply equally in relation to the episcopate”. The announcement is already beginning to gain attention and speculation as to its significance including at Changing Attitude and Thinking Anglicans but its full import remains largely unconsidered. What follows seeks to set this decision in context and highlight important questions that remain unanswered and issues that need addressing.


January 02 2013 | Articles

Open Letter to the Bishops of The Episcopal Church

Written by:
Tuesday, November 27th, 2012

This is a painful letter. It is painful because it concerns un-canonical (and perhaps even unlawful) actions on the part of our Presiding Bishop and her associates. These actions, detailed in the attached appendix and summarized in the bullet points below, have already undermined the good order and spiritual health of our church. We write to you our Bishops because of your responsibility for that good order. We write as Presbyters who have in one way or another faithfully served our church for over half a century. We pray that, despite the painful nature of the story we place before you, you will listen to what we have to say with a clear and open mind.


November 27 2012 | Articles

South Carolina: A Communion Response

Written by:
Tuesday, November 20th, 2012

Yesterday Bishop Christopher Hill of Guildford, the chairman of the Church of England’s Council for Christian Unity, advised that church’s General Synod of developments in South Carolina:

On Saturday, a Special Diocesan Convention endorsed the South Carolina withdrawal from The Episcopal Church. The Bishop has stated that their position would be to remain within the Anglican Communion as an extra-provincial Diocese. The Episcopal Church on the other hand maintains that General Convention consent is necessary for any withdrawal. So the legal and indeed theological and ecclesiological position is extremely complicated. And it is absolutely not certain.

It has therefore not been possible to consider the consequences for our relationships at this immediate stage. And, in my view, any statement just at this point would be premature.


November 20 2012 | Articles

Consumed By Litigation: TEC In South Carolina (Part Two)

Written by:
Wednesday, November 14th, 2012

In the first part of this article we addressed questions of good faith and canonical integrity arising from TEC’s actions in South Carolina. We concluded that those actions raise troubling questions about the good faith of many church leaders in their dealing with Bishop Lawrence, including the Presiding Bishop, the Disciplinary Board, other TEC bishops and some diocesan clergy. We also concluded that TEC’s position is canonically incoherent: either its actions in South Carolina are in open contempt of its own canons or TEC has undermined the legal basis of its position by acknowledging that the Diocese has indeed left.


November 14 2012 | Articles

Consumed By Litigation: TEC In South Carolina

Written by:
Sunday, November 11th, 2012

It is becoming increasingly apparent as we witness developments unfolding in The Episcopal Church that secular litigation objectives are paramount, trumping other principles such as the fundamental norms of Christian conduct, the canonical integrity of the church, ancient standards of catholic ecclesiology and even the pastoral care of TEC’s own people. Proof of this startling proposition abounds, including the inexplicable disciplinary charges brought against nine bishops for joining ACI in filing an amicus brief asking the Texas courts to refrain from deciding complex questions of TEC polity and in submitting truthful affidavit testimony in Illinois. But nowhere is the ascendancy of litigation imperatives more apparent than in the actions TEC has taken concerning the Diocese of South Carolina.


November 11 2012 | Articles

Polity Politics or The Rule Of Law? A Response To Bishop Whalon

Written by:
Thursday, October 11th, 2012

Bishop Pierre Whalon’s recent essay, “Polity Politics,” offers a critique of the amicus curiae brief submitted to the Texas Supreme Court by ACI and seven bishops of The Episcopal Church. Surprisingly, there is much with which we agree in this essay, especially the conclusion Bishop Whalon reaches at the mid-point that “on the face of it, the seven bishops are right.” He goes on to assert that although we are right “on the face of it,” we are nonetheless ultimately wrong in light of his interpretation of TEC’s history, Constitution (which he never quotes) and ordination vows. While we disagree with him on these latter points, it is useful to start with the common ground where Bishop Whalon’s observations support the perspective expressed in the amicus brief.


October 11 2012 | Articles

Title IV Under Review

Written by:
Wednesday, August 15th, 2012

The recent General Convention passed two resolutions calling for fundamental review of the new Title IV. Resolution C116 called for a review of the “Constitutionality of Certain Provisions of Title IV,” including:

the constitutionality of the power granted therein to the Presiding Bishop to restrict the ministry of a Diocesan Bishop [and] the constitutionality of the creation of a charging and trial system applicable to Presbyters and Deacons in violation of Article IX of the Constitution which provides that Presbyters and Deacons shall be tried by a Court instituted by the Convention of the Diocese.


August 15 2012 | Articles

Same Sex Blessings: What Did General Convention Do?

Written by:
Friday, July 20th, 2012

Every bishop, priest and deacon undertakes at ordination “to conform to the doctrine, discipline and worship of The Episcopal Church.” The recent action by General Convention purporting to authorize bishops to authorize a rite for blessing same sex couples raises in an acute way the question of what exactly is the worship of The Episcopal Church to which all clergy promise to conform. We look carefully at this question below. Our conclusions can be summarized as follows:


July 20 2012 | Articles

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