Suicide by Canon: the House of Bishops Letter on Episcopal Consents

At different times in the course of this blog, Crusty has expressed his frustration at the deficiencies of the Episcopal Church's canonical structures.  To give some quick backstory, there are a variety of factors that come together to lead to instances of canonical mayhem:

a)  some essential and integral components of the Constitution and Canons of the Episcopal Church were laid down in 1789 for a tiny church ( maybe 15,000 members?) scattered along the Eastern seabord in a handful of dioceses.  There are some growing pains in extrapolating this to a church of over 2,000,000 members with over 120 active bishops in over 100 dioceses in 16 different countries.  Things like voting by orders and have a bicameral governing structure meeting separately in a compressed timeframe come to mind.

b)  canonical revision has been sporadic and often occasional -- that is, canons are revised in fits and spurts over time, and often in response to specific events.  Here's a quick example: in 1873, Bishop George Cummins of Kentucky wrote to the Presiding Bishop about his desire to resign his episcopal orders and form a new church.  Under the canonical provisions of the time, all the Presiding Bishop

He could have been deposed for the ears and facial hair  alone. 

could do is tell Cummins he had six months to think things over or he would be deposed.  Cummins promptly held an organizing conference and consecrated a new bishop for his Reformed Episcopal Church.  So the canons were revised to allow the Presiding Bishop to temporarily inhibit bishops (under certain provisions), since there was no procedure in place in 1873 and Cummins was technically still a bishop of the Episcopal Church when he consecrated Charles Edward Cheney.  We could go on and on about canons revised specifically in response to certain events.  Now, extrapolate over 220 years, and you get canons designed for specific situations accumulating over time.

c)  there have, at times, been thorough attempts and efforts at redoing chunks of the canons.  For instance, the canons of preparation and discernment for ordained ministry were overhauled at the 2003 and 2006 General Conventions, and the Title IV provisions for clergy discipline were overhauled in the 1990s and again at the 2009 General Convention.  We overhauled much of our denominational governance at the 1919 General Convention, creating what is now the Executive Council and making the Presiding Bishop an elected office.

So that's the big picture:  the canons, at times, are a mess, and for lots of systemic reasons.  Hey, COD can't contain himself.  A couple other great examples:

--we had to revise the canons to bring about coherence in the timeframe for episcopal consents that are given at General Convention.  The canons used to say in some places consents would be given at General Convention if an election was "within three months" and in other places "within 120 days".  So in the canons we had two different time frames for when consent needed to be given at Convention!  After reconciling these two timeframes, we then went a step further and eliminated the whole consent process at Convention and now leave it solely to diocesan Standing Committees and bishops with jurisdiction.

--the canons use the term "in communion" without defining it and by using it in different contexts; for instance "clergy ordained by bishops in communion" with this church.  Well, some diocesan bishops ended up defining this as they understood it, receiving clergy (rather than ordination or conditional ordination) from churches with whom the church has no formal agreement (for instance so-called non-canonical "Old Catholic" Churches) or licensing bishops to perform episcopal acts (as when the deposed bishop of Pittsburgh permitted a Reformed Episcopal Church bishop to preside at confirmations).  So eventually a patch was needed, and Title I, Canon 20 was created precisely to resolve the whole question of what "in communion" means (shameless plug: which Crusty helped to draft).

That's just some problems with the Constitution and Canons themselves.  Another whole issue is the problematic implementation and interpretation of the canons.  One of the most common concerns regularly inviting and/or communing non-baptized persons.  There are a whole range of issues involved in communion non-baptized persons, one of them being canonical:  it is something explicitly prohibited by the Constitution and Canons, but routinely ignored.  There are serious issues of accountability and integrity of governance if we have canons that are routinely ignored while others are implemented.  Read more about what Crusty thinks about this here.

Another problem is the way the canons are used to end pastoral relationships between bishops and dioceses, or between parishes and clergy.  Just as some law enforcement officers speak of "suicide by police," where some people confront law enforcement more or less begging to be shot in lieu of killing

No deadly force used by these Police.  Best album ever!

themselves, we, at times, practice our own version of "suicide by canon", more properly "pastoral dissolution by canon," using the canonical process to end problematic pastoral relationships.  The situation with Bishop Charles Bennison in Pennsylvania is the most recent example, where the canon on conduct unbecoming of a member of the clergy was stretched to barely credible extremes in order to get a canonical conviction and deposition -- only to be overturned on appeal when the appeals body ruled that the canons had been applied inappropriately.  Read more about Crusty's thoughts on abuse of canonical provisions for other purposes here.

And then came the House of Bishops Committee on Pastoral Development (HOBCOPD).  BTW, Crusty wonders:  shouldn't it be House of Bishops' Committee on Pastoral Development? (Watch, this will get the most comments in the comments section, COD raises this not because he cares but because he knows grammar czars simply can't help themselves.)  They have recently weighed in on providing guidelines for the giving of consent to episcopal elections.  For a quick review of Episcopal polity in case someone who has stumbled blindly onto this blog and has somehow made it this far looking for a "What's Happening" reference:  when a diocese chooses a bishop, that choice must be confirmed by a majority of Standing Committees (bodies consisting of lay and clergy representatives elected by dioceses with certain canonically defined roles of oversight) and a majority of bishops with jurisdiction (bishop coadjutor or bishops diocesan).  However, canonical ambiguity emerges:  what does "consent" mean?  Does it mean that these votes should just be box-checking, that the election occurred properly and according to guidelines?  Or is there a broader role of consent -- is the church beyond the diocese somehow approving or endorsing this particular selection, and therefore should employ certain standards?  Fortunately, this is one of the few times when the dysfunction in the church is so systemic that it transcends liberal and conservative, something that is truly miraculous, as both "liberal" and "conservative" candidates have failed to receive consents in recent years.  The election of Kevin Forrester in the diocese of Northern Michigan did not receive consent, largely due to concerns from some that the bishop-elect used unauthorized liturgical texts and had been "ordained" as a Zen buddhist monk.  Likewise, the first time Mark Lawrence was elected bishop of South Carolina, consent was not given, with many who declined to give consent citing concerns about Bishop-elect Lawrence's response to questions about respecting the polity of the Episcopal Church.

So there's clearly a canonical ambiguity here, which the letter from the Committee on Pastoral Development notes in more than words:

“The House of Bishops Committee on Pastoral Development has observed two extremes in the process  

Crusty only believes in one Extreme.  

of granting consent:

"At one extreme, a bishop comes under intense scrutiny without apparent appreciation for the rigorous process he/she has already undergone in order to be elected.

The opposite extreme find bishops and Standing Committees offering uninformed consent; consent granted with little regard for the fairness of the process, or other circumstances which could eventually affect the ministry of the elected bishop and the mission of the diocese.”

That pretty much hits the nail on the head -- and is the main reason why the consent process was changed so that consents are no longer given at General Convention, but are solely done by the

Bishop-elect, what are your opinions on the Filioque? 

diocesan Standing Committees and bishops with jurisdictions.  At the 2006 Convention, giving of consents to episcopal elections was running the risk of becoming the Episcopal Church's version of Supreme Court nominating hearings, with candidates grilled with questions by various interests groups on matters already vetted in the election process and being held to a different parliamentary standard -- largely out of fury by conservatives that another openly gay bishop had not been elected, so they had to fulminate against someone for something.  One bishop-elect in 2006 was questioned about a confidentiality agreement (which, of course, the bishop-elect could not comment on), while another was raked over the coals for his number of marriages.

While we are back to having a consent process being solely done by Standing Committees and bishops with jurisdiction, the question of "consent" still remains.  What does it mean?  What standards should we use?

Well, kids, call Crusty crazy but he thinks the way to define our understanding of consent is IN THE CANONS.

Not in a letter by a committee of the House of Bishops seeking to interpret the canons.  A quick perusal of the questions demonstrates this -- they follow, cut and pasted from the PDF COD downloaded from one of the tubes that make up the internet.  The questions are intended to be "additional discernment" for Standing Committees and bishops as they consider to give consent, and are preceded by the header "Questions Bishops and Standing Committees might consider before offering consent to an episcopal election.”

Consideration of Questions 1-7 could be seen as contrary to the Constitution and Canons of the Episcopal Church, and in violation of Article II, Section 1:

Crusty teaches church history and Episcopal polity.  A central component of the polity of the Episcopal Church is that "lower" or "local" levels may structure certain aspects of their governance as they see fit, provided that a) they are on conformity with the law, and b) they do not violate any provisions of the levels "above" them.  For example:  COD has been a member of congregations where the entire congregation votes on the annual budget at the annual meeting.  COD has been a member of congregations where the congregation does not vote as a whole, but the Vestry approves the budget, and the parish is informed and has opportunity to comment, but not vote.  Either method is OK (though one in COD's mind clearly preferable) so long as there are no diocesan canons or local law prohibiting such a practice.

Selection of bishops are one of those places where the Constitution and Canons give that leeway to dioceses.  Article II lays it out: bishops are chosen according to "rules prescribed by the Convention of that diocese."  Period (metaphorically speaking, since there is a provided that follows).  As COD has taught in his polity course, dioceses could throw darts at pictures of candidates or draw lots if that is what the diocesan Convention has laid out.  COD always liked the fact that when the Moravians used to draw lots, they left one blank, in case God didn't want them to pick any of the persons.  This actually happened when they were choosing a new person to be their Senior, or Presiding Bishop.  For realz.  Check it out here.  When COD reads first read this he thought, "This don't sound so bad given some people who get elected bishop."  There's no reason bishops need to be elected at all.

Questions 1-7 can been seen as an effort to establish standards for episcopal elections through an interpretation of what "consent" means: to standards on the nominating process (were nomination by petition allowed?), to matters of diocesan personnel policies (is there a letter of agreement in place?), to placing authority in non-canonical standards (conducted in a manner according to best practice guidelines of The Episcopal Church in consultation with the Presiding Bishop's office).  If we are to introduce "standards", should we not direct Standing Committees and dioceses to the Constitutions and Canons of individual dioceses, since the Constitution of The Episcopal Church places the process for choosing bishops squarely with diocesan Conventions?

Let's keep in mind that at the 2006 General Convention, there was considerable discussion around a "response" to the Windsor Report and Anglican Communion on the question of whether the Episcopal Church would given consent to any future openly gay or lesbian persons elected bishop.  Various draft resolutions were debated, from asking bishops and Standing Committees to "exercise caution" to "refrain from" giving consent to placing an outright moratorium on consents to openly gay and lesbian candidates.  COD was sitting in the House of Deputies and commented on the draft resolution, "That should be ruled out of order, since it violates the Constitution."  Surely enough, after a challenge to the chair, who ruled it in order, (and which was defeated and debate went on), eventually the parliamentarian informed the chair the resolution was, indeed, out of order, since qualifications for episcopal elections are left to the dioceses in the Constitution.

Question 8-9 are just from the Department of Redundancy Department.  Bishops already promise to do this in their ordination vows.

Question 10 -- Department of Redundancy Department to questions 1-7.  It adds standards which are not part of the Constitution and Canons or ordination rite in the Prayer Book.

Come on, HOBCOPD: you've got Crusty over a barrel.  

First off, you have several letters in common with COD so I want to cut you some slack.   

Second, Crusty is not necessarily opposed to all of the provisions laid out in this letter (for instance he thinks letters of agreement are important and believes The Episcopal Church is actually moving backwards on inclusion of women and persons of color in the episcopate) -- but WTF are they doing as part of the consent process?  The right place for these questions is in the nomination and election process, not the consent process.  

Once again COD feels forced to state the obvious:  The way to fix canonical ambiguities is IN THE CANONS.  Not to let unelected and/or unrepresentative entities of any kind redefine the canons outside of the canonical process.  

Third:  you're forcing me to agree with other bloggers!  Crusty likes to see himself as operating above

Keanu and Swayze, show us the way!

the liberal/conservative divide (I am shockingly liberal on some things, which makes conservatives not trust me; and shockingly conservative on some things, which make liberals accuse me of betrayal) in a passionless state, like Yoda, Spock, the Queen, and Keanu Reeves.  When COD is agreeing with George Conger (albeit only on the question of establishing some kind of standards) AND Mark Harris (BTW, Crusty actually quite likes them both) some Ghostbuster-like apocalypse of dogs and cats living together is surely coming.

Far from solving anything, this letter from the House of Bishops Committee on Pastoral Development runs the risk of becoming another instance of suicide by canon.  We have recast our canons before:  if something's important enough to do, it is important enough to do properly and, well, canonically.