February 12, 2008

$.02 on San Joaquin

While I would not use, as some have, the word stink, the DSJ situation is a mess. It represents a situation unconceived-of in the canons and constitution. I am of the opinion that the Standing Committee did not cease to exist on the illegal actions taken by the Convention, or as a result of their failure to interpose an action in the Convention’s or the Bishop’s path; in the absence of certain knowledge, I assume at least some members of the Standing Committee were elected at previous sessions of the Convention, not all of them at the “Robbers’ Synod” (a reference for all you church history buffs out there).

In any case, the duly elected Standing Committee has a canonical responsibility and is not merely a creature of the Convention, even though elected by it — any more than the Bishop is a creature of Convention because elected by it.

Moreover, I disagree with those who see this as being a “systems” thing. There are only, in this case, individuals, since a Diocese cannot, in fact, leave the Episcopal Church — there is no canonical way to do that apart from action of General Convention, and even then it is possible only in the case of Dioceses that are not part of the territorial United States. If you want the canons, that’s what the canons say. The “Anglican Diocese of San Joaquin of the Southern Cone of the Americas” is an “illegal fiction” with no standing whatever. There is only the Episcopal Diocese of San Joaquin, with a number of disobedient or disorderly members and clergy (who meeting in convention took an action they were not by law empowered to take) and one bishop (now awaiting deposition), together with a number of loyal and obedient clergy and members.

The question comes down to, and has been posed as: does casting an improper vote or failing to exercise due diligence in preventing improper actions by others cause one automatically to abdicate an elected office? I would say not, for there are canonical procedures in place to address these failings; there is no mere ipso facto deposition absent an action by those with the authority to impose such a sentence. Even if the charge is abandonment of the communion of this Church (which is well appropriate if one voted to leave it and join Cono Sur) this should properly be addressed by the use of the canon next after the one already applied to the errant Bishop.

The situation is complicated by the fact that it is the Standing Committee itself that normally brings charges in such a case. As the old Latin tag has it, Qui custodet ipsos custodes — who will guard the guardians?

My view, then, is that if the members of the former/existing Standing Committee can unambiguously reaffirm their allegiance to The Episcopal Church (the real one), they should be able to continue to function as members of the Standing Committee of the Episcopal Diocese, and serve out terms until the next elections by the diocesan convention. (I disagree, by the way, with the language suggesting that there is a need to “reconstitute” the diocese; some organization and reordering is needed, but the diocese still exists, and the illegal efforts to amend its constitution are void.) This may, in fact, be what is happening in the interplay of letters and conversations, and the continued hard work on the ground by a number of folks, not least of them the Presiding Bishop.

We can only hope for some greater clarity as time goes on. But to blame the present problem on Katherine Jefferts Schori is not helpful: she is attempting to deal with a novel situation created by Bishop John David Schofield’s hubristic folly, “L’eglise, c’est moi.”

Tobias Haller BSG


20 comments:

Nick Finke said...

I agree with Tobias and I agree especially here:

"The question comes down to, and has been posed as: does casting an improper vote or failing to exercise due diligence in preventing improper actions by others cause one automatically_to abdicate an elected office?"

In my former life in the Roman persuasion one said of a priest who got married without first receiving a dispensation from his vow of celibacy, that he "attempted marriage." In the view of the canon lawyers he couldn't marry because he lacked the legal capacity to do so, no matter how hard he tried.

No matter what anyone thinks, the simple reality of the current situation in the DSJ under our canons is that the Bishop has been inhibited and may, in the future, be deposed. I do not believe that any other significant change has occurred. Although the Bishop and other members of the Diocese have attempted to remove the Diocese from TEC, Tobias rightly points out that they lack the legal capacity to do this and we should treat their actions as the nullity that they are (another old Roman concept).

This being the case, TEC has to deal with the Standing Committee of the DSJ unless and until they are removed by the proper canonical procedures. Any other approach on our part has the same status as their attempts to take the DSJ out of TEC. Unless we follow the procedures set forth in the canons, we would merely be attempting to remove them without having the canonical capacity to do so.

One reason that our Church has attracted me is that by and large our instinct is to deal with each other pastorally, not legalistically. The current situation shows that there are situations where a fairly strict adherence to the canons is actually the more charitable thing to so.

thomas bushnell, bsg said...

i fear we have come to this pass for a clearly identifiable reason.

the habit of "who cares what the canons and rubrics say; i should do what i think best" has come to roost. i can only hope that this doesn't burn +KJS too badly. much depends on what happens at the convention which will be called.

there has always been a certain brand of leader in the church which seeks to lead by deciding what is best--perhaps by a consultative process, perhaps not--and then implementing it as much as possible. missing in the process is a question like "what are my particular responsibilities in this system?" and "what authority do i have or not have?"

it is hard enough keeping track of the things we are called to keep track of and exercise the authority we have been given responsibly. it does not go well when a priest, bishop, or presiding bishop operate without those constraints.

it is simply that her approach to title iv is, apparently, much what her approach is to canon i.18.7. whatever the leader wants, the leader gets.

this is bad at any time, but it's electrically disastrous in the current climate. we don't need more George W. Bushes in the church, and the episcopal church is filled with them.

Anonymous said...

(Dan)
I generally agree with your comments except in two instances:
First, whatever the fate of the Episcopal DioSJ, to say there is no Anglican Diocese of the Southern Cone now in place is simply wrong. All those folks who left the Episcopal Churcha are free to constitute themselves as a Diocese of the Southern Cone and associate itself with that Province. What that Diocese owns or doesn't own will have to be resolved under church and California law, but that Diocese is a reality. The second disagreement I have is with your demand for a loyalty oath as a condition for the duly elecred Standing Committee to continue to function. Where is that requirement in the canons? If it isn't there, no matter how desirable it might be to some, it should not be imposed as a precondition to the performance of their canonical responibilities. Vote them out. Charge them if they have violated the canons. But until and unless they are properly succeeded by duly elected new members, they are the Standing Committee.

Tobias Haller said...

Thanks for the comments. Nick, nullity is a good concept to keep in mind. Thanks for reminding us of it. Thomas, I'm not sure which canon you are referring to as i.18.7-- is there a mistake in the enumeration?

Dan, what I mean is that I believe there is no legal basis for the formation of the "Anglican Diocese of San Joaquin." It is not just about the property, or even the people, but the pretense that Anglicanism has no "rules" -- and I'm sorry if all of those in the Continuum want to continue to think they are still Anglicans, but it means, among other things, until and unless something changes, as the ABofC has repeatedly said, there is only one Anglican province in the US and that is TEC. As with Recife, the "missionary" efforts of the Southern Cone are not being recognized as legitimate. People are "free" of course to make any claims they like; they can form a shadow diocese with a name that sounds official; but I am addressing the legal basis of this claim to have founded a new diocese within Anglicanism -- through a means that has no legitimacy in Anglican polity, based on many Lambeth decisions (themselves resting on the ancient canons) as well as common practice: people are not to form "Anglican" churches in other territorial jurisdictions. Under Episcopal Church law this fictive diocese has no existence, and if the Church rightly approaches this not as a property dispute but as a dispute over church law, the property issue will take care of itself.

Secondly, I did not "demand" a "loyalty oath." (Nor am I in a position to do so!) I simply suggest that as a way to clarify the situation, the persons in question could make their position clear without anything so dramatic. As far as I am concerned they have already made the Oath of Conformity at ordination, and if they express willingness to abide by it I would take that as a good-faith gesture. A simple acknowledgment would go far to alleviating much of the anguish in this hellishly ambiguous situation.

Anonymous said...

(Dan)
1. What oath of Conformity did the lay members of the Standing Committee make?
2. The province of the Southern Cone has admitted the Diocese into the Province. Whether the Ab of C approves or not, whether Bp. Schofield is invited to Lambeth or not, are all irrelevant. There is now a US Diocese in the Southern Cone. It is located in the same geographicl boundaries as the Episcopal Diocese of San Joaquin. It may not meet tradtional understandings of territorial integrity but it is a fact of life. That is my point.

Anonymous said...

(Dan)
The clergy members also made a commitment to obey their bishop. As I understand the canons, Schofieed remains the Bishop of the Episcopal Diocese of San Joaquin. He has been inhibited but in all administrative and similar such matters, he is still the Diocesan. How are the clergy members to reconcile their ordiataion vows to conform to the doctrine, discipline etc. of the Episcopal Church and also to obey their Bishop?

Tobias Haller said...

Dan,

1) I was speaking of the clergy members. The lay members are, I assume, communicants in good standing in a parish that is part of the Episcopal Diocese. A word of clarity on that count again would be sufficient, given the confusion.

2) I take your point, but the problem is that the claim has no basis in church law. I do not deny there is a collection of people calling themselves "the Anglican Diocese of San Joaquin." I agree that the Province of the Southern Cone has claimed to take this new entity under its wing. I am simply noting that this is roughly equivalent to someone claiming to be the Queen of Romania, as the old Dorothy Parker poem put it. There is no legal basis for the purported action; it is null and void. This parrot is dead.

3) The vow of obedience is conditioned by the proper exercise of authority on the part of the one to whom the vow is made. No one is morally bound to obey illegal orders; in fact, one is morally bound to disobey them. These are precisely the kinds of decisions that the clergy in question have had to wrestle with, and it appears that they (and at least 2 of the laity) have chosen not to follow the Bishop's lead, and been dismissed from their positions in the new fictive diocesan structure. It must have been a very difficult decision for them, and I am sympathetic to the tensions they have experienced.

Dan, I am trying to find a way through all of this that can restore some semblance of order in a very disorderly situation. Don't you think it incumbent upon those who acted badly (in supporting an illegal action) to take some responsibility in setting matters right? I agree with you that they "are" the standing committee; and they should act with maturity rather than reactivity and work with others who are seeking a resolution to a deeply anomalous situation.

Anonymous said...

(Dan)
Of course I agree they should act soberly, maturely and in utmost good faith. You and I, however, would not necessarily agree what that means in the given context.

Tobias Haller said...

Perhaps not. On the other hand, what do you suggest? (We have agreed on a few things in the past -- if you are the Dan I take you to be; perhaps this might be yet another of those instances where people with very different perspectives might see the same solution, or at least find themselves to be in the same ballpark)...

Anonymous said...

(Dan)
Let the duly elected Standing Committee perform its canonical responsibilities. The PB can electioneer, encourage and promote all she wants, but it is up to the SC to take action if and when Bp Schofield is deposed. Follow the canons. Don't deviate from them. That is what I suggest be done.

Tobias Haller said...

I think that is a very reasonable and prudent suggestion, and moreover accords with the law, and is in keeping with what I said in the original post: "the duly elected SC has a canonical responsibility." My suggestion has been that a "soft word" from the SC would go far to help make this unfold in a positive direction. From what I have read, there are a goodly number of people willing to work to repair the breach. If everyone could step back from the battlements the battle might be over sooner rather than later.

Richard Illinois said...

There may be no way to resolve this matter within existing canonical contexts, whatever side of the issue you happen to take. I would guess that the actions taken by +Katherine were based on legal advice, knowing that the matter is undoubtedly headed for secular courts. If the EC doesn't make its objections to events in SJ clear it might be said that it concurs or accepts the situation because it took no action.

Paul Davison said...

One difficulty is that I don't believe there is any canonical authority to remove lay officers, except perhaps if they fail to meet a qualification for membership. (And I'm not sure that is sufficient.) The Title IV task force is proposing a canonical method for dealing with this issue, but that doesn't help now.

Anonymous said...

(Dan)
No need to beat this to death. The suggestion you made was "IF" the members of the SC take the pledge, they should be permitted to function. I find that objectionable in that it is not required by the canons. If the members of the SC wish to make such a statement, it might go a ways in engendering some good will with 815 but face it, the Remain Episcopal crowd is eager for revenge. The only proper place to get it is by way of canonical action or by the ballot bax.

Tobias Haller said...

Richard, I think that is correct: this is a way to register an objection, failure to do which might have later impact.

Paul and Dan, the issue for me is one of clarity. The only reason I think the members of the SC who wish to continue should make a clarifying statement is to remove the ambiguity created by the present situation. I do think a person who has transferred his or her membership to another church (whether in communion or not!) is no longer a confirmed communicant in good standing or a cleric of this Church, and hence barred from service on a Standing Committee. It is unclear to me what the status of the clergy members is: did they sign the letters of transfer to Southern Cone provided at the Convention, or not? And was their removal by Bishop Schofield based on their not having signed, or having had second thoughts? It simply isn't clear, and all I think that should reasonably be asked is clarification. I'm by no means suggesting a liturgical or even a formal act. I agree that such a statement is not a legal requirement -- but given the confusion and the clearly extra-legal actions taken by a number of folks in the opposite direction, such an act in a positive direction would be welcome in both removing ambiguity and defusing the atmosphere of mistrust -- for which there is ample ground. You are closer to the situation than I am, and perhaps you are correct that there is a spirit of revenge at work in some quarters. But if that is the case, I would suggest that the politic way to defuse it would be to come to the table with open hands, and a reaffirmation of willingness to work together -- not in the rather militant and huffy way with which the SC responded to the PB. I understand the huffiness of their response; but that really does not advance the situation. I am by no means interested in beating this to death -- but rather offering advice towards what I earnestly see as a way to life together, in spite of differences.

Malcolm+ said...

A couple of things.

I don't know off hand how the canonical and liturgical language runs in the US, but the phrase I am familiar with is to obey "in all things lawful and honest." Without wanting to get into a demonizing match, one can certainly argue that the actions and directions of +John-David were neither lawful nor honest.

That said, I am concerned that the actions of the Presiding Bishop (quite apart from possibly being ultra vires) seem to be predicated on an assumption of guilt on the part of those members of the Standing Committee who have indicated that they are not metaphorically "going to Peru." At the very least, that appearance is unhelpful.

The same effect might have been accomplished had some appropriate national official - possibly the Presiding Bishop - had written to the members to say that, in the circumstances, it was necessary for the members to clarify their status as members of the Episcopal Church in order to definitively settle the question of their elegibility to serve on the Standing Committee.

thomas bushnell, bsg said...

whoops, a typo. i meant I.17.7.

Tobias Haller said...

Thanks, Thomas... that makes much more sense.

Paul Davison said...

If I might try to add a little clarity: Title I, Canon 12 (On Standing Committees), does not impose any qualifications for being a member of a Standing Committee. (In fact, my own Diocese's (Atlanta) canons don't either, beyond requiring lay or clerical status for the specific seats on the Committee.

That being said, could we assume that an implied requirement for lay members is membership in the Episcopal Church? Otherwise, a diocesan convention could elect a Roman Catholic, a Buddhist, or even a member of the Province of the Southern Cone to a Standing Committee!

(I think I'm glad my term as a judge of the Ecclesiastical Trial Court is up in December, before Title IV can be amended.)

Tobias Haller said...

Thank you, Paul. I think this is just one more instance of our canons having "grown" rather than having been systematically drafted. No one would have conceived that you could have anyone other than a confirmed adult communicant on a Standing Committee. (Remember too, the bulk of our canons date from a time in which confirmation was required to be a communicant!) We really do need to take a long hard look at the "assumptions" and put them into the code.