Bishop John Howe of Central Florida has written to the House of Bishops suggesting that a clear response to the Windsor Report be taken up at their next meeting. This includes the recommendation that the bishops “agree to a moratorium on same sex-blessings and the consecration of non-celibate homosexual persons until or unless a ‘new consensus’ emerges in the Communion that such actions are seen as legitimate in the light of Scripture and Christian tradition.”
The House of Bishops’ adoption of such a moratorium raises several issues. Most seriously, it concerns the abrogation of a fundamental right of dioceses and provinces to elect, approve, and consecrate leaders of their own choosing, in accordance with our form of church government. Aquinas held the right of people “to choose their rulers” to be a matter of Divine Law, and it is certainly deeply embedded in the American psyche. (see note below)
Since potential abrogation of rights is concerned in this case, it must come under the rubric of “What touches all must be approved by all.” (see the note on this below) Therefore a mere majority of the House of Bishops, or even an overwhelming one, would be insufficient to impose such a moratorium in a strict form of binding mandate. Moreover, since in our polity the election and consecration of Bishops is not in the hand of the House of Bishops, but actually in the hands of the bishops with jurisdiction and the Standing Committees or House of Deputies such a matter would only finally be decided by the General Convention in session.
That is, if we are talking of a legally binding moratorium or stay. Because it is true that a majority of the bishops with jursidction, acting on their own, could by their refusal to consent to such elections exercise the equivalent effective result of such a moratorium. So too could the various Standing Committees of the dioceses. Clearly they are free so to do — but this is a matter of the exercise of their personal individual judgment, not of the assembly as a whole.
I would suggest that Bishop Howe consider wording his motion as a recommendation towards collegial restraint rather than as an authoritative mandate from above, in order to prevent what might well appear to be a constitutional crisis.
Aquinas writes in Summa Theologica I.II.Q105.1 concerning the form of governance of the People of God designated for Israel under the Old Testament, which he presents as an ideal:
I answer that... all should take some share in the government: for this form of constitution ensures peace among the people, commends itself to all, and is most enduring, as stated in Polit. ii, 6... Accordingly, the best form of government is in a state or kingdom, where one is given the power to preside over all; while under him are others having governing powers: and yet a government of this kind is shared by all, both because all are eligible to govern, and because the rulers are chosen by all. For this is the best form of polity, being partly kingdom, since there is one at the head of all; partly aristocracy, in so far as a number of persons are set in authority; partly democracy, i.e. government by the people, in so far as the rulers can be chosen from the people, and the people have the right to choose their rulers. Such was the form of government established by the Divine Law.
A further note on “What Touches All”
A full-fledged moratorium which would legally bind bishops not to approve of the consecration of Candidate Whoever requires a unanimous vote under the principle, “What touches all must be approved by all.” I’ve laid out the full legal background on the history of that law elsewhere in this blog. But “all” means “all” in this case, because a fundamental right (the voting franchise itself) is abrogated by an affirmative vote. It would be inappropriate for the House of Bishops, some of whom (as suffragans, for example) do not have the right or responsibility to consent to an episcopal election, to bind the bishops with jurisdiction to act in a way contrary to their informed judgement in some future case.
The original Justinian law had to do with water rights, which is a little obscure. Closer to home, imagine someone on the vestry proposes a resolution that says, “No one may vote Yes on any resolution to increase the Rector’s salary.” Such a resolution would have to be unanimous because it proactively takes the vote away from everyone concerned. It touches all because it affects a fundamental individual right possessed by all. If “all” agree, fine. But if only 9 out of 10 agree, they have effectively stolen someone’s vote. And what if it is only 6 out of 10? (This is not the same thing, by the way, as voting not to raise the Rector’s salary; that is, sadly, usually accomplished by a simple majority!)