February 27, 2017

April 24, 2012

Have They Violated Title IV? Bishops and Priests Oppose ECUSA’s Stance in Fort Worth Case

Yesterday, seven bishops of the Episcopal Church (USA)—five active, and two resigned (retired)—joined the three Episcopal priests in the Anglican Communion Institute in filing an amicus curiae (“friend of the court”) brief in the Texas Supreme Court appeal brought by Bishop Jack L. Iker and his Episcopal Diocese of Fort Worth to overturn the summary judgment granted by the District Court in favor of ECUSA and its rump diocese and parishes. The arguments in the brief present a view directly contrary to the view expressed in the case by the Church’s attorneys that ECUSA is “hierarchical.” 

[Side note for SF readers unfamiliar with curmudgeonly directness of speech: Despite all the magic hand-waving by ECUSA’s Presiding Bishop and its General Convention, there is one and only one way to have a diocese become a member of the association of dioceses known as the Protestant Episcopal Church in the United States of America. That one way is spelled out, in very clear words, in Article V of ECUSA’s Constitution, and it has not changed in over 200 years. The faux “Diocese of Fort Worth” is here so called (and also denominated with adjectives like “rump”, “Potemkin”, “ersatz”, or similar words) because it has not gone through that constitutional procedure. Unless and until it does, it is not a genuine ECUSA diocese, no matter how many official pronouncements issue from no matter what quarter of the Church. End of sidenote.]

The bishops joining in the brief are +Benitez (resigned - Texas), +Howe (resigned - Central Florida), +Lambert (suffragan - Dallas), +Love (Albany), +MacPherson (Western Louisiana), +Martins (Springfield), and +Stanton (Dallas).  The three priests are the Rev. Prof. Christopher Seitz, the Very Rev. Dr. Philip Turner III, and the Rev. Dr. Ephraim Radner.

Earlier, the merits brief filed with the Court by ECUSA’s attorneys contained the following statement at pp. 24-25:

As every court in the nation that has addressed the question has concluded, The Episcopal Church is a hierarchical church [footnote omitted]. The undisputed evidence in this case confirms that conclusion. The Church’s governing documents clearly reflect the Church’s three-tier structure, with the General Convention at the top tier.

The amicus brief just filed, on the other hand, states at p. 16:

In this dispute, both sides do in fact agree that there is no explicit language in The Episcopal Church’s governing constitution identifying in express legal terms of hierarchy or supremacy any central body or office allegedly superior to the diocesan bishop [footnote omitted]. Indeed, none of the following terms routinely used in legal documents to indicate hierarchical priority is found at all in The Episcopal Church constitution: “supreme”; “supremacy”; “highest”; “hierarchical”; “subordinate”; “sole”; “preempt”; and “final.”

So how could all those courts trumpeted (in the omitted footnote) in ECUSA’s brief have found that ECUSA was “hierarchical”? Simple. ECUSA’s attorneys are playing their usual game of “look over there while we hide the ball over here.” All of the cases cited by ECUSA as making that finding were cases involving relationships between bishops/dioceses, on the one side, vs. clergy/parishes on the other. But the Fort Worth case is not that case: it involves one bishop and his diocese against other dioceses and their bishops who have joined into an association.

Bishop Iker and his diocese withdrew from the association, as was their constitutional right under the First Amendment’s freedom of association. The other bishops and their dioceses have sued Bishop Iker and his diocese for all of the diocesan properties and bank accounts. Since when does an association to which you belong have the right to claim all of your property if you decide to leave it?

(Hint to ECUSA and its attorneys: the Dennis Canon, which the dioceses and bishops invoked with the Church in those “many cases” alluded to earlier, makes a claim only to parish property, and not to the property of a diocese as such. So your argument that dioceses have to surrender their property upon withdrawal is without precedent in Church history, and indeed is specifically contradicted by its history during the Civil War.)

For ECUSA and its attorneys, all they have to do is wave the magic word “hierarchical” about, and courts must allow their claims. That is why the amicus brief filed by some of its own clergy, which points out the Emperor’s lack of clothes on this occasion, must be both an embarrassment, and also no small irritant. After all, if the “Church” is at the top of the “three-tiered hierarchy,” why can’t the “Church” keeps its bishops and clergy in line?

Well, could it?

Could the leaders of ECUSA now lodge disciplinary charges under the new Title IV (that went into effect last July) against the seven bishops and three priests who have dared to defy them in open court? Let’s go be a fly on the wall at 815, and see:

Scene: in a conference room in the chambers of the Presiding Bishop at 815 Second Avenue, New York City. Huddled together at a table are the Presiding Bishop, her Chancellor, and her Special Presidential Assistant for Litigation.

CHANCELLOR: The offenses for which a bishop or clergy may be charged under new Canon IV.3 include “knowingly violating or attempting to violate, directly or through the acts of another person, the Constitution or Canons of the Church or of any Diocese. . . .”  The problem is that there is no Constitutional or canonical provision I can find in the entire Church which says that you cannot file briefs as a friend of the court. So, Mary, what else might we try?

SPECIAL ASSISTANT FOR LITIGATION: Well, under new Canon IV.4, all clergy in the Church must abide by certain “standards of conduct,” such as these:

(b) conform to the Rubrics of the Book of Common Prayer;
(c) abide by the promises and vows made when ordained;

PRESIDING BISHOP: The BCP says nothing about amicus briefs, and I’m pretty sure the ordination vows don’t, either. Couldn’t I simply issue these meddlesome priests a Pastoral Directive to stay out of the Fort Worth proceedings? Then we could charge them with insubordination.

SPECIAL ASSISTANT FOR LITIGATION: But you would have had to issue the Directive before they filed the brief. I’m afraid we forgot to include any authority to issue Pastoral Directives on an ex post facto basis. 

CHANCELLOR: Mary, dammit, make a note of that for the next GC.

SPECIAL ASSISTANT FOR LITIGATION: What about the requirement in subsection (e) to “safeguard the property and funds of the Church and Community”? Surely what they’ve done fails to safeguard our right to +Iker’s property.

CHANCELLOR: They would simply argue that that’s the very question involved in the Fort Worth case, and that until the Court decides it, we won’t know whether it’s our property or not. Besides, we’re saving the first case under that section for Bishop Lawrence, as you know. We can’t risk establishing a bad precedent with others first. 

PRESIDING BISHOP: Wait—there’s this: it says in (h)(2) that all clergy in the Church must refrain from “holding and teaching publicly or privately, and advisedly, any Doctrine contrary to that held by the Church…”.  Couldn’t we pretend, David, that whatever you write in any of our briefs in these cases was Church doctrine?

CHANCELLOR: Nice try, Bishop Katharine, but that canon has “Doctrine” with a capital “D”. And that’s a term defined in Canon IV.2 [reads]:

Doctrine shall mean the basic and essential teachings of the Church and is to be found in the Canon of Holy Scripture as understood in the Apostles and Nicene Creeds and in the sacramental rites, the Ordinal and Catechism of the Book of Common Prayer.

PRESIDING BISHOP: Not a great loss, I guess. I don’t really put much stock in that Canon anyway, since the trial of Bishop Righter.

CHANCELLOR [beneath his breath]: So some have observed.

PRESIDING BISHOP [sharply looking at the Chancellor]: What’s that you say?

CHANCELLOR: Nothing. I just said that was an astute observation. [Pauses.] It looks to me, Mary, as though we’ve got only one charge left.

SPECIAL ASSISTANT FOR LITIGATION: You mean, the “catch-all”?

CHANCELLOR: The very one. [In a mockingly spectral voice:] Conduct Unbecoming a Member of the Clergy.

PRESIDING BISHOP: But hasn’t that got its own special definition, too? Seems to me I remember something about dear old “Chuckles” Bennison…

SPECIAL ASSISTANT FOR LITIGATION: You are right, Your Grace. The term is defined as [reads]:

... any disorder or neglect that prejudices the reputation, good order and discipline of the Church, or any conduct of a nature to bring material discredit upon the Church or the Holy Orders conferred by the Church.

PRESIDING BISHOP: Well, there we have it, then—I can charge them with “conduct unbecoming a member of the clergy.” Mary, you draw up the charges, and run them by David before bringing them to me to sign.

SPECIAL ASSISTANT FOR LITIGATION: But what’s the specific violation?

PRESIDING BISHOP: Don’t you see? They have written words to say that we are not “hierarchical”—and not only that, they had the nerve to file them in a court proceeding adverse to us. They accused us, in essence of not speaking the truth. That is certainly intended to bring discredit on us.

SPECIAL ASSISTANT FOR LITIGATION: But won’t they just respond that they were the ones speaking the truth?

PRESIDING BISHOP: What’s wrong with you, Mary? Have you forgotten what it says in John 18:38? [Reads:]

“Pilate asked: what is truth?”

SPECIAL ASSISTANT FOR LITIGATION: But didn’t Pilate say that in response to Jesus’s statement that he came to testify to the truth?

PRESIDING BISHOP: Exactly, Mary—good for you. If Jesus Christ could get into trouble for speaking the truth in a court of law, then so can these infernal bishops. Now, draw up the charges!

[Scene darkens as a fly is heard buzzing in the background.]

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You didn’t quote Wormtongue. I’m sure he was at the table too!

[1] Posted by sophy0075 on 4-24-2012 at 05:16 PM · [top]

He was perched throughout on one of the three’s shoulders, Sophy0075. I will let you guess which one.

[2] Posted by A. S. Haley on 4-24-2012 at 05:25 PM · [top]

You know, SF contributors were called “bottom feeders” by one of the revisionists.  What’s ironic is that SF now has to go to the very top of the organization to bottom feed.

[3] Posted by Timothy Fountain on 4-24-2012 at 06:08 PM · [top]

Excellent, Mr. Haley. I am afraid this just might come to be realized.

[4] Posted by SC blu cat lady on 4-24-2012 at 06:31 PM · [top]

On a happy note—three cheers for the TEC bishops who have put their names on this brief.  Very awesome news!

[5] Posted by Sarah on 4-24-2012 at 06:42 PM · [top]

These bishops and clergy showed courage for filing this with the court.  Whether this has a happy ending or not…......

[6] Posted by SC blu cat lady on 4-24-2012 at 07:18 PM · [top]

I am pleasantly surprised that +Stanton is among those filling the brief.

Yes, kudos to those brave men indeed.

[7] Posted by Newbie Anglican on 4-24-2012 at 07:28 PM · [top]

Wow, very impressive action by these bishops and the three members of the Institute.  Really putting themselves on the line, because they will be vilified and attacked in all sorts of ways, and by all sorts of people.

One of the most fundamentental duties of bishop is simply to speak.  Even when its dangerous or unpopular to do so.

[8] Posted by MichaelA on 4-24-2012 at 07:52 PM · [top]

Why should the PB bother with Title IV when all she has to do is announce
that she has accepted their renunciations of ministry?

[9] Posted by Paul Powers on 4-24-2012 at 08:08 PM · [top]

I am pleasantly surprised to see the names of two people from the Episcopal Diocese of Dallas on the list of signatories. I recall my question to one, in particular, at a meeting at Trinity Hillcrest during pre-departure discussions several years ago, and his response. Perhaps the heresy and apostasy of the 815 crowd has finally sunk in.

Daniel (aka Fisherman)

[10] Posted by Fisherman on 4-24-2012 at 08:20 PM · [top]

I think #9 has a point.  No better demonstration that a hierarchy exists than the hierarch blatantly abusing power and no one standing up to do anything about it.  You know, like an HoB meeting.

[11] Posted by tjmcmahon on 4-24-2012 at 08:32 PM · [top]

Paul Powers (#9) and tjmcmahon (#11), you might want to read pp. 18-19 of the amicus brief—I don’t think the Presiding Bishop will try to pull that stunt again. When she accepts a bishop’s “voluntary renunciation,” she necessarily admits that she is not disciplining that bishop, because she can only act under that canon if there has been no disciplinary violation. The dismissal is pronounced “voluntary” on the part of the bishop, and so she cannot claim to be exercising hierarchical powers.

Instead, the abuse in her so acting comes from her being so arbitrary as to proceed in defiance of the bishop’s actual intent, and then challenging anyone to do anything about it. But that is not “hierarchy” either (which implies that even the PB is subject to authority greater than herself, such as the HoB or General Convention). That is tyranny. So if she wants to prove her tyranny over the Church, let her proceed.  She won’t be demonstrating the Church’s claimed “hierarchy” in doing so; she will be demonstrating the exact opposite.

[12] Posted by A. S. Haley on 4-24-2012 at 10:52 PM · [top]

Of course you are correct Mr. Haley, although I think that was the point the 2 of us were trying to make- TEC has confused tyranny for hierarchy, and is attempting to get the courts to recognize the first (exercise of non-constitutional authority) as the second (exercise of constitutional authority within a defined structure).

Having followed the issues related for this for quite a number of years now, and having read a number of your analyses as well as others, what I do not understand is why the courts have so often agreed with TEC that (a) it is hierarchical above the level of diocese (I refer here to the cases in California and Pennsylvania, although there are various appeals yet to be settled), and (b) that the consistent open abuse of constitutional authority is recognized as legitimate - there was, for example, no constitutionally legitimate removal of the bishops who TEC refers to as “former bishops.” From a strictly constitutional point of view, either the Diocese of Fort Worth left the Episcopal Church (which I believe is what happened, and is allowable under the wording of the accession clause- of for that matter, under the definition of the word “acceed”) OR the Diocese of Fort Worth CANNOT leave the Episcopal Church.  But if the latter is true (I don’t think it is, but for sake of argument) then +Jack Iker is still the bishop of the TEC Diocese of Fort Worth, since he has never been deposed, and never signed a document renouncing his orders (as required in the canons).  However, the courts to date seem to have backed KJS on these non-canonical removals.  For the PB to act outside the canons is indeed a constitutional infraction- since she is exercising powers not granted her by the constitution, and indeed infringing on powers reserved to the HoB.

[13] Posted by tjmcmahon on 4-25-2012 at 07:44 AM · [top]

My earlier remark was meant to be tongue-in-cheek. I don’t really think she’d try it this time (even though she’s also used it to rid herself of some pesky retired bishops). As to the courts backing her on these non-canonical removals, as far as I know, the courts have never been asked to address their validity. That’s exactly the kind of entanglement into a church’s internal procedures that the courts try to avoid.

[14] Posted by Paul Powers on 4-25-2012 at 08:32 AM · [top]

Several of these bishops are on the threshold of retirement.  They clearly are not using their retirement as an escape hatch to the golf course.  God bless them.

[15] Posted by Jill Woodliff on 4-25-2012 at 08:37 AM · [top]

This affidavit should have been filed in the trial court. In several cases the point has not been sufficiently contested.

[16] Posted by Pb on 4-25-2012 at 08:47 AM · [top]

I was also surprised and pleased to see +Stanton’s name on the brief. He has seemed very quiet lately at least to me (since I was lately of a parish that left the Dio of Dallas for the Southern Cone) I had assumed that he was in head down, make no waves, lets put the unpleasantness behind us mode. Not that he wouldnt have an good argument there since that may be the best way anymore to protect a largely orthodox dio still within TEC from the punitive ministrations of 815

But now that he is ostensibly my bishop again (yes I have been forced by geography to attend a Dio of Dallas parish once again) I have to say that it bodes well that he is still willing to back the cause of the orthodox even at a potential cost. We haven’t lost him and that’s a good thing in my book.

[17] Posted by StayinAnglican on 4-25-2012 at 10:07 AM · [top]

Perhaps I am overly suspicious / paranoid, but I seem to detect the nearly hidden, subtle, skillful hand of a curmudgeon in these developments.  If so, well done sir!

[18] Posted by ABQ Methodist on 4-25-2012 at 11:21 AM · [top]

And from this “bottom feeder:” (Me)  Ditto!

[19] Posted by cennydd13 on 4-25-2012 at 01:48 PM · [top]

I’d like to see the spinmeisters’ reaction to this; it ought to be very interesting!

[20] Posted by cennydd13 on 4-25-2012 at 01:50 PM · [top]

what I do not understand is why the courts have so often agreed with TEC that (a) it is hierarchical above the level of diocese (I refer here to the cases in California and Pennsylvania, although there are various appeals yet to be settled)

I think we have to remember that as plaintiffs, TEC’s legal team tries to choose a judicial venue within a geographical diocese where they will get a sympathetic hearing. That was definitely their reasoning for choosing Judge Chupp’s court in Arlington, Texas. I’m not sure what percent of TEC’s legal actions have been successful to date (maybe 50%, etc.), but that reflects clever legal maneuvering more than sound arguments based on law at this point. We’ll see on appeal.

[21] Posted by All-Is-True on 4-25-2012 at 02:19 PM · [top]

#17 - Stay in Anglican - there is a DioFW ACNA/Forward in Faith parish in the City of Dallas, in case you were unaware. 

I’m glad to see Bp. Stanton do something.  This is the first risky stand I’ve seen him take since the “Plano” meeting in 2003, and his pension wasn’t at risk then.

[22] Posted by Connie Sandlin on 4-25-2012 at 06:23 PM · [top]

Connie, unfortunately both St Francis and St Matthias are too far away for me. I would love to say that I bounce eagerly out of bed every Sunday with more than enough time to drive from Plano to attend either one of those parishes but the truth is more like the opposite. Most of the time, I barely manage to stumble zombie-like but basically on time through the doors of Holy Nativity, Plano which is about five minutes from me. I gotta do what works for me grin

I do make it to St Francis once in a blue moon. I was a happy member of St Matthias for a long time but now I prefer the more contemplative liturgy at St Francis.

I still consider myself to be in the Dio of Ft Worth. +Iker confirmed me and since I still make it on occasion to a parish under his oversight, I see no reason to officially transfer back into Dallas. I hope that is a kosher thing to do because it feels right to me given my situation. Ft Worth is my home and +Iker is my bishop as long as I live in this area.

[23] Posted by StayinAnglican on 4-25-2012 at 11:05 PM · [top]

An illuminating, and typically vitriolic, response to this story was posted to the House of Bishops and Deputies e-mail listserv by The Rev. Michael Russell, the Rector of All Souls’, San Diego.  It’s a nice window into how people who don’t toe the ECUSA company line are viewed by the senior leadership of the Episcopal Church:

We can certainly charge these bishops and try them.  That is what disciplinary structures are for and as many here well know I have charged conservatives frequently for failing to use them. The amici is the wrong place to make their assertions, they should bring it to GC as Constitutional or Canonical changes.  Now all they are doing is serving as pawns for more os [sic] ACI’s intellectual mischief.

Serendipitously, I am re-reading Master of the Senate in preparation for Caro’s new volume on Lyndon Johnson.  It begins with a history of the Senate that is wonderful.  I am in the period leading up to the civil war, and he is describing the Stares’ Rights debates that surged through the Senate as well as the southern states’ belief they could nullify actions of Congress.  These, of course are the same lines of argument used by the ACI.  They are also the sort of arguments coming from the nouveau secessionists in the political sphere.

We need to remind these bishops again what unqualified accession has meant since both Constitutions were first formed.  While some states and some parishes preceded the Constitution, everyone acceded to the new structure and bound themselves to it. These folks continue to fail to understand what “unqualified” means and that Dioceses are creations of GC, and live under the umbrella of GC.

I suggest the HoB send an amici as well, challenging the defective understanding of this group.

[24] Posted by Pigeon on 5-2-2012 at 01:32 PM · [top]

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