Written by: The Reverend Canon Professor Christopher Seitz & Mark McCall, Esq.
Tuesday, April 21st, 2015
Last week we published an analysis of proposals to have this General Convention authorize supplemental liturgies that would be neither part of the Book of Common Prayer nor a proposed revision of it. Based on the detailed text of Article X of TEC’s Constitution, we concluded that General Convention does not have this authority and that whatever authority does exist to authorize supplemental rites resides in the bishop of each diocese. We noted that the Standing Commission on Liturgy and Music appears to agree with us since it has proposed amending Article X to assign this authority to General Convention and explained the need for such an amendment with an analysis of that article that is identical to our own reading.
Tobias Haller, who served on the Marriage Task Force that has put forward various proposals to the upcoming General Convention, objects to our analysis. We have engaged Mr. Haller through comments on blogs, and that engagement has yielded interesting information about what he thinks General Convention is legally capable of doing with respect to liturgical revision. We believe his reasoning is flawed on these matters, and we have stated our concerns straightforwardly. More recently, on his own blog, he has attacked these statements of ours as being the product of simple “ignorance”. Not only does he disagree with our recent analysis, his response begins as follows: “Those who are ignorant of history…are doomed not to know what they are talking about.” Given the importance of General Convention’s upcoming decisions on our liturgies, we need to clarify any misunderstandings about this disagreement.
Haller begins his dismissal of our concerns with an obviously false (implied) premise: that we are unaware that General Convention has purported to “authorize” supplemental materials for a long time. Indeed, we began our own analysis of this issue in part II of our piece with precisely this formulation (“purported to ‘authorize’”) in order to signal that the issue is not the existence of these materials, but their constitutional status. We are well aware of the Book of Occasional Services and Lesser Feasts and Fasts, as are all clergy of TEC.
Careful readers of our discussion would have noticed that we inserted an ellipsis into a quotation from a 2006 SCLM report:
The multiplication of liturgical and musical materials intended for occasional use at the direction of the Diocesan bishop … has rendered the meanings of prayer book phrases like forms set forth by authority with this Church and subject to the direction of the bishop (BCP p. 13) and hymns…authorized by this Church (BCP p. 14) difficult to interpret.
What we omitted from the quote and indicated by the ellipsis was such a laundry-list of supplemental materials as to render the sentence almost unintelligible as written. For the avoidance of doubt, for us their existence is not the issue.
Perhaps Haller’s title was only a rhetorical flourish; and so we should address the substance at issue. His main argument appears to be that if something has been going on for a long time it must be constitutional. For starters, he should take this point up with the SCLM and the Standing Commission on Constitution and Canons, which jointly have been attempting over the last 25 years to amend Article X of TEC’s Constitution to give General Convention authority to authorize these supplemental materials. If they are constitutional anyway, why the bother? Why try again now?
In any event, Haller’s legal reasoning at this point is naïve, common though it may be. Constitutional questions are not something like adverse possession: as if doing an unconstitutional act openly and notoriously for ten years makes it constitutional. There is often a significant period of time when the unconstitutionality of a legislative act goes unrecognized. Indeed, whenever a court finds such an act unconstitutional it is true by definition that a majority of the legislators themselves had previously thought the act constitutional. And there are well known cases in which the Supreme Court itself had previously upheld the constitutionality of statutes it was later to strike down. As we know, Brown v. Board of Education overruled a similar case, Plessy v. Ferguson, that sixty years earlier had found segregation statutes constitutional. Similarly, Lawrence v. Texas overruled a Supreme Court case decided only seventeen years earlier when it ruled state sodomy statutes unconstitutional.
Haller’s other arguments similarly do not convince. . His second one is that “nothing in the Constitution or Canons forbids General Convention authorizing rites supplemental to the Book of Common Prayer.” This argument from silence is a tricky one; although TEC acknowledges in court, as it must, that there is no provision in the Constitution forbidding a diocese from withdrawing from the church, it continues to argue (both insistently and unsuccessfully) that a diocese cannot leave. As is well known, we have concluded that a diocese has the legal right to withdraw, but our argument is not based on mere silence but instead on a careful analysis of TEC’s legal structure. (One of us (McCall) testified in the Quincy trial on just this issue.)
Similarly, our analysis of the constitutional issues surrounding supplemental liturgical materials is not based simply on silence in the Constitution, but on the fact that a) General Convention is given carefully-defined authority over liturgical matters; b) another office (diocesan bishop) is explicitly given the authority Haller would assign to General Convention; and c) the church has repeatedly recognized the need for amending the Constitution to give General Convention authority in this area but has failed to do so. By pointing to silence in the face of these facts, Haller is essentially conceding the main point we were making: the Constitution does not give this authority to General Convention.
Haller next resorts to what is, frankly, a recognized logical fallacy when he argues that “ACI seems to think that the House of Bishops (and Deputies) cannot do as a body what any individual bishop can do in her own diocese (authorize a liturgy for a special occasion or for circumstance not provided for in the BCP).” He is quite right that we believe that General Convention cannot do what bishops do simply because it incorporates a collection of bishops. By suggesting that they might, as a self-evident proposition, Haller here commits the fallacy of composition, which, as one common source of information defines it “arises when one infers that something is true of the whole from the fact that it is true of some part of the whole (or even of every proper part).” An oft-used example of this fallacy is this: every piece of this machine is lightweight; therefore the whole machine is lightweight. To take an obvious example from TEC that exposes the fallacy: every diocesan bishop has the right to give or withhold consent from episcopal elections; that does not give the House of Bishops that right—much less the House of Deputies! Even under the former rule that required that consents for some elections be given at General Conventions those consents were given by bishops with jurisdiction, not the House of Bishops voting as a whole.
To return to history: Samuel Seabury himself authorized supplemental liturgical materials in the first years of TEC’s existence. But more on point for the current issue is the view taken by the other half of the first HOB, William White. In 1789, 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 December 1789 letter to Seabury, 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….
Finally, we end by noting the first point we made in our essay to which Haller objects. There is a New Episcopal Church, which he seems to be defending. It has cut the constraints tethering it to constitutional governance and Prayer Book worship and is soaring Icarus-like to ever greater heights. What could possibly go wrong?
Without a constitutionally defined episcopal office and a Constitution respected as such, TEC will become a triennial General Convention Church with triennially defined identity.
April 21 2015 | Articles