Polity politics or the rule of law? Christopher Wells October 11, 2012 Commentary From the Anglican Communion Institute, Inc. 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. Common Ground First, Bishop Whalon observes correctly that while “hierarchy is natural” each denomination exhibits it “in wildly different ways.” In this broader context, he finds TEC’s form of government “idiosyncratic.” We agree with this because it underscores the basic point of the amicus brief. Bishop Whalon’s observations about TEC’s idiosyncratic governance are based on his readings of 2000 years of church tradition and 200 years of TEC history. He puts these interpretations forward in an effort to go beyond what is true on “the face of it” to opine more fully on “what a hierarchy is.” Advertisement It is important to stress that the document Bishop Whalon critiques in his online essay is a legal argument filed in a court of law. We welcome the opportunity to engage in a lively online debate on these important issues and to discuss them in church meetings and journals. But it is not the role of the civil courts to delve into this fascinating topic, sort through multiple issues of church history and attempt to analyze properly each of the “wildly different” church polities. This becomes an imperative when the civil courts confront a form of church government that is admittedly “idiosyncratic.” The courts must stop at what is true on the face of it or go no further. That, in a nutshell, is the primary argument of the amicus brief. A second point of agreement is Bishop Whalon’s conclusion that from the earliest days of the church “the office of bishop had become the central feature of church government throughout the Roman Empire,” a development still considered as fundamental to Anglicanism in the Chicago-Lambeth Quadrilateral. In line with this tradition, TEC’s Constitution makes the bishop the “Ecclesiastical Authority” of the diocese, another point emphasized in the amicus brief. Third, Bishop Whalon notes that “local autonomy” has been a central feature of TEC governance from the outset. He also invokes the twentieth century term “subsidiarity,” which the Windsor Report defines as “the principle that matters should be decided as close to the local level as possible.” ACI and several bishops made this same point a few years back in their “Bishops’ Statement on the Polity of The Episcopal Church,” also noting that subsidiarity has been identified as a “key strand” of Anglican polity and that its principle was explicitly articulated by William White and the other founders of TEC as a “fundamental principle” for creating the form of governance of the new church. This preference for local authority is an important interpretative principle when one starts sifting through the often obscure historical data and ambiguous constitutional language. We will return to this point below. A final point of agreement with Bishop Whalon is his observation that “‘dispersed authority’ is a classic hallmark of Anglicanism.” We submit that TEC’s Constitution reflects this by dispersing authority among many bodies and offices, including the several diocesan bishops acting in conjunction with their diocesan conventions pursuant to their diocesan constitutions. On matters within the diocese, the bishop is “the” Ecclesiastical Authority. This is in part what makes TEC’s polity “idiosyncratic.” Bishop Whalon regards TEC polity as confusing. He first claims we are confused and then admits that he “may also be confused.” One of the points on which Bishop Whalon is confused is whether we regard TEC as “hierarchical.” He first says we do not, then admits we do, but then takes that back: “As there is no archbishop or other metropolitical authority figure above bishops in our church, they reason, the government of the Episcopal Church taken as a whole is not hierarchical.” To be clear: we regard TEC as “hierarchical” but as a hierarchy that displays the “classic hallmark of Anglicanism,” dispersed authority — in TEC’s case, authority dispersed among dioceses and their bishops, the essential units of catholic ecclesiology. Ultimate Issue: Is TEC a Metropolitical Church? This last point brings us to the crux of our disagreement with Bishop Whalon: does TEC’s Constitution create a “metropolitical authority” superior to the diocesan bishop? Bishop Whalon thinks it does. Without citing or alluding to a single provision of the Constitution, he merely asserts: “the metropolitical authority… resides in the General Convention….The General Convention is at the top of our hierarchy.” We disagree. And it is important to emphasize that our disagreement with this conclusion is based fundamentally on an undeniable legal fact: nowhere does TEC’s Constitution state what Bishop Whalon asserts. “Metropolitical authority” is a very precise and technical ecclesiological term. “Top of the hierarchy” is a very colloquial allusion to a legal concept that is widely used and readily identified in constitutions and legal documents. The legal term most often used to express this concept is “supremacy,” as in the English Act of Supremacy by which the Church of England separated from Rome and the oath of supremacy that all Church of England bishops continue to swear to this day. There are also other terms that are recognized legally as expressing this concept, but none of them is used in TEC’s Constitution. If there were any constitutional article stating that the General Convention is the supreme or highest or metropolitical authority in the church, we can be quite confident that Bishop Whalon would have quoted it rather than relying on mere colloquial assertion. Again it is important to stress the context of this debate: a legal brief to a civil court. Given the constraints of the First Amendment, secular courts of law can draw conclusions about church polity only when those conclusions are stated plainly in recognizable legal language in the church’s governing instruments — in other words “on the face of it.” They cannot enter the thicket of disputed questions of polity based on mere assertions by well-meaning churchmen that some office or body is at “the top of the hierarchy.” Courts can conclude that the Roman Catholic Church has a supreme authority because they need only look at the table of contents of its Code of Canon Law to see the chapter entitled “The Hierarchical Constitution of the Church,” the first section of which is “The Supreme Authority of the Church.” The United States Supreme Court was able to identify the hierarchical authority in the Serbian Orthodox Church because its constitution stated explicitly that the Holy Assembly of Bishops is “the highest hierarchical body.” And in the many cases involving Presbyterian churches the courts can cite the language in their constitution — as the Texas Supreme Court itself has done in the past — that states “the General Assembly is the highest court of this church.” TEC’s Constitution has no comparable provision. Unlike the civil courts, however, we can enter the polity thicket and debate the inferences Bishop Whalon draws from his survey of comparative ecclesiology and church history. Closer examination shows that the main points he offers to buttress his conclusion about General Convention cannot withstand scrutiny. Geography and Basic Structure He starts with the assertion that “all churches have the same basic structure.” They have a “local congregation,” a “regional organization” and “an overall authority.” This appears to be an attempt to supply by geography what is lacking as a matter of law. The unstated premise is that any organization broader than a regional one must be the “overall authority.” But that premise is plainly false as a well-known example proves. The Southern Baptist Convention is a denomination named after its general convention. And local Baptist congregations tend to belong to regional or state conventions in addition to the general convention. But of course that simple fact does not give the general convention supreme or metropolitical authority over the local congregations. To possess “overall authority” that authority must be specified in the governing instruments. An entity does not give up its autonomy merely by joining a national association, as the NCAA and the Southern Baptist Convention attest. If TEC’s General Convention is indeed at the top of a legal hierarchy it must derive that legal status from something other than being a “general” convention. Vows Next Bishop Whalon looks to the ordinal to support his view that the General Convention is the metropolitical authority of the church: “the General Convention rules on what is the doctrine of the Church, its discipline (canon law), and its worship. All the clergy pledge to conform to that doctrine, discipline, and worship….” The question-begging nature of this assertion is given away by its opening words. One sees the declaration of conformity as confirming that the General Convention is the supreme authority in the church only after one asserts without argument that the General Convention is the sole source of authority for the church’s doctrine, discipline and worship. There are many authorities in the church, including the General Convention, the Ecclesiastical Authority of the diocese, the bishop, diocesan conventions, standing committees, rectors, wardens and vestries. All are sources of authority in the church. The General Convention would be entitled to “rule on” these matters as the sole or supreme authority only if it were given that authority by some governing instrument. Most importantly, the source of all temporal or canonical authority in TEC is the Constitution, which states that it “sets forth the basic Articles for the government of this Church.” It is the Constitution, not the General Convention, that is the source of the “discipline” to which ordinands pledge conformity. This is an important point that is often missed by those advocating for the supremacy of General Convention. Metropolitical churches have “hierarchical oaths” in which the ordinand pledges obedience to the metropolitical authority by name. Roman Catholic bishops promise “obedience to the successor of the apostle Peter.” Serbian Orthodox bishops swear an “Episcopal-Hierarchical Oath” 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.” Church of England bishops “promise all due reverence and obedience to the Archbishop and to the Metropolitical Church of Canterbury [or York].” 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 often 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.” There is no mention of General Convention; the emphasis is on bishops sharing leadership of the “Church throughout the world,” the “Church of God,” the “one, holy, catholic, and apostolic Church.” There is no vow of obedience to any office or body as there is to the Archbishops or Pope or Holy Assembly in the oaths of the other churches. This understanding of hierarchical authority is underscored by the vows of priests and deacons in which they pledge conformity to the doctrine, discipline and worship of the Church and obedience to the diocesan bishop — the diocesan bishop is the Ecclesiastical Authority to whom obedience is pledged, not the General Convention. Indeed, the model for TEC’s declaration was the oath specified in the pre-existing canons of the state church in Virginia, which prior to the first meeting of any “general convention” already had a canon requiring the following: Every person hereafter to officiate in this church as a bishop…shall take the oath ofallegiance to the commonwealth, and subscribe to conform to the doctrine, discipline and worship of the Protestant Episcopal Church of Virginia. (Emphasis added.) Had TEC’s founders intended to create a metropolitical hierarchy it would have been a simple matter to adapt this oath or the English oath of due obedience to require “allegiance” or “due obedience” to General Convention in place of the Commonwealth of Virginia or the “Metropolitical Church of Canterbury.” In sum, far from supporting his case, Bishop Whalon’s reliance on the ordination vows actually undermines it. And the other assertions offered in support of the theory of a metropolitical church are equally dubious. Early History Bishop Whalon’s survey of the colonial churches omits the most important fact concerning the governance of the majority of those churches: they were established by law by the various state governments and were under the control of the state legislatures. The “Church of Virginia” was so “fettered by Laws” it could not participate in the first interstate “convention” in 1784. The minutes of that convention noted that: “The Clergy of that State being restricted by Laws yet in force there, were not at liberty to send Delegates, or consent to any Alterations in the Order Government, Doctrine, or Worship of the Church.” The “Church of Maryland,” also established, had to request permission from the state legislature even to meet in a state convocation, at which they issued a declaration that the Maryland church was “an entire church” “independent of every foreign or other jurisdiction, so far as may be consistent with the civil Rights of Society [i.e., state government].” Its position as stated to William White was: the Protestant Episcopal Church, in each particular State, is fully entitled to all the Rights and Authority that are essentially necessary to form and compleat an Entire Church; and that, as the several States in [the Articles of] Confederation have essential Rights and Powers independent on each other, so the Church in each State has essential Rights and Powers independent on those in other States. The South Carolina church was not fully disestablished and free to govern itself independent of state control until 1790. These were among the founding state churches that came together to form TEC. Given this legal context, it is implausible, to say the least, that they intended to create a metropolitical church without ever saying so. New Dioceses Nor is it true that after 1789 “the General Convention alone can create a new diocese.” One has only to look at the table of contents of the Constitution to see that the relevant article is entitled “Of the Admission of New Dioceses,” not “the Creationof New Dioceses.” The article provides that the process for creating a new diocese “originates” in a convocation in the “unorganized area.” This body forms a legal entity by adopting a constitution. General Convention’s role is to “consent” to the admission of this entity into union with the other dioceses of General Convention. One can see this in operation in the journal of the 1835 General Convention, William White’s last as Presiding Bishop, in which the “Church of Illinois,” already existing with its own constitution and bishop, was by resolution “received and acknowledged as a Diocese in union with the General Convention.” The procedure Bishop Whalon has in mind is not the TEC process but rather that expressed succinctly by Canon 373 of the Roman Catholic Code of Canon law: “It is only for the supreme authority to erect particular churches [dioceses].” TEC has neither a designated “supreme authority” nor this process for creating new dioceses. Is General Convention Subject to the Constitution? Bishop Whalon may not fully appreciate the implications his observations have when coupled with the principles of civil law. He is ambivalent about whether the Constitution constrains General Convention in any way. On the one hand, he acknowledges that “there are real limits to the extent of the Convention’s authority.” But he also claims “Convention’s decisions are unimpeachable; there is no court of appeal other than future meetings of the Convention to reverse decisions.” Bishop Whalon probably does not realize how the simple acknowledgement that there are limits to General Convention’s authority undermines the legal case being put forward by TEC in the civil courts. Because the Constitution does not give General Convention supreme authority, TEC has been forced to defend in the civil courts the extreme position that General Convention has inherent authority unlimited even by the Constitution. The primary polity witness, Professor Mullin, puts it as follows: “The Church Constitution acknowledges a General Convention without specifically defining its authority, thus placing no limits on that authority.” If this view of TEC polity were accepted by the secular courts and enforced by the coercive power of the civil law, even the theory advocated by Bishop Whalon would be swept aside in favor of an unlimited and unconstrained centralized authority. Constitutional silence does not bestow unlimited authority, especially in the context where the principle of subsidiarity has long been paramount. The absence of a designated body with final interpretive or judicatory authority does not mean that there must be one somewhere and that we — worse still the courts — should identify our preferred candidate. It means there is none. For example, the initial union of American states formed by the Articles of Confederation also lacked a central judiciary. That did not mean that Congress exercised that function (and supreme hierarchical power). It meant that the only judiciary was that found in the several sovereign states comprising that union. In fact, Article IX of TEC’s Constitution provides for the creation of “an ultimate Court of Appeal” to review determinations of other courts on matters of “doctrine, faith or worship.” This “ultimate” court has never been established. This confirms that General Convention is not constitutionally the “ultimate” authority on these matters as Bishop Whalon maintains. If it were, the Constitution would not provide for a different body. And on other questions, such as the interpretation of the Constitution and general and diocesan canon law, there is no ultimate authority. Authority on these matters rests with the various bodies that share jurisdiction, including diocesan and other courts and the various conventions and other bodies of TEC, without any “highest judicatory.” This may be idiosyncratic, but it is also typically Anglican. Accession This leads to our final point of disagreement with Bishop Whalon. He asserts that the General Convention “does not prescribe the constitution and canons of each diocese, only that these must conform to the constitution and canons of the whole Church.” And later he asserts that “each diocese and all their congregations must accede to the authority of the General Convention” and that the original dioceses “acceded to the unimpeachable authority of the General Convention in 1789.” This can only be described as wishful thinking. There is no constitutional provision requiring that diocesan constitution and canons conform to general canons. Dioceses accede to the general Constitution and canons when they join TEC, but thereafter they reserve their unfettered authority to amend their constitutions and canons as they see fit. There is not even any requirement for prior review and approval by General Convention of changes to diocesan constitutions and canons. The requirement of prior review is one of the primary legal mechanisms by which truly metropolitical churches exercise their hierarchical authority. But in TEC the reverse is true; changes to the general Constitution must be formally submitted to the dioceses for prior review before approval. Dioceses do what they like without any review. Moreover, dioceses have never “acceded to the authority of General Convention.” They acceded instead to the Constitution — later the Constitution and canons — at the time they originally joined TEC. By sleight of hand, Bishop Whalon transforms accession to a document into accession to one of the bodies established or recognized in that document. And that accession is then treated as establishing the legal supremacy of that one body. But accession to a legal instrument does not constitute acknowledgement of legal supremacy or metropolitical authority unless the instrument itself specifies such authority. TEC’s Constitution does not do so, and the act of accession therefore adds nothing to this issue. When TEC’s dioceses acceded to its Constitution they did nothing more than what TEC itself did when it “acceded and subscribed to the Proposed Constitution of the said Anglican Consultative Council” in 1969. TEC did not thereby “accede to the authority of the ACC,” much less to its “unimpeachable authority.” It is agreed by all that the Anglican Communion is not a hierarchical organization and that accession to the constitution of the ACC does not confer metropolitical authority on that organization. Conclusion This brings us back to where we started. TEC’s polity exhibits the “classic hallmarks of Anglicanism,” dispersed authority and local autonomy. Put differently, Anglican Communion polity is TEC governance writ large. This form of governance is complex, even confusing and most certainly idiosyncratic. Secular courts cannot be asked to sift through the myriad historical facts and inferences allegedly beyond the “face” of what the Constitution plainly says and irretrievably assign TEC to a pre-existing legal pigeonhole. The risk to TEC’s traditional polity is too great. That in the end was the primary point of the amicus brief. 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