Leading Church historian, Robert W. Prichard of the Virginia Theological Seminary, has written a fine essay in the church history journal, Anglican & Episcopal History (Vol. 78, No. 1, March 2009).
Here, Fr. N.J.A. Humphrey of Covenant offers an excellent summary of Dr. Prichard's essay, much of which is quite pertinent not only to the upcoming General Convention and it's attempt to recast Title IV with the current Troubles, but also the assumption that the General Convention operates as an authority above the local dioceses when the TEC constitution says no such thing. The essay is also casts an enlightening view on the property fights now underway in American courts, including Dr. Prichard's own Diocese of Virginia whom he will represent as a Deputy to General Convention this summer.
The Title IV revisions include what appears to be a draconian provision that would prohibit redress in American courts (the presumption in the first place is that American courts are free and the church is under law, but it seems that in the proposed revisions that is not the case and the church is above the law) In other words, the church decides what the laws mean. That's a little waco to me.
Dr. Prichard is also troubled by the announcements that the Episcopal Church will not even consider the Anglican Covenant until the current Presiding Bishop is out of office, which - according to Fr. Humphrey - is not good news for The Episcopal Church and benefits the establishment of a new Anglican province in North America.
In this post, I will summarize Robert W. Pritchard’s article in the same journal, entitled, “Courts, Covenants, and Canon Law: A Review of Legal and Canonical Issues Facing the General Convention.”
Pritchard considers the issues in four categories:
1) questions relating to the behavior of individual members of the Episcopal Church; 2) questions relating to the rights and responsibilities of congregations; 3) questions relating to the rights and responsibilities of dioceses; and 4) questions relating to the Episcopal Church’s relationship to the Anglican Communion.
In the first category, General Convention will consider a proposal from a task force it established in 2006 after rejecting much of the proposals of a similar task force appointed in 2003. According to Pritchard,
The heart of the new proposal is a plan for replacing the current disciplinary procedure in the church with a new proposal that is intended to be more compact and more collegial…The task force suggested that a single disciplinary board, from which all participants in the canonical procedure at the diocesan level would be drawn, should replace the current system in which there are separate review committees and trial courts.
After a summary of the new proposal in contrast to the existing system, Pritchard comments,
On the positive side, it is designed to promote a less antagonistic approach to questions of misconduct. It also provides for greater confidentiality and requires less personnel than the current system. On the negative side, it provides fewer checks and balances than the previous system, precisely because of fewer people are involved. (sic)
Pritchard also notes that “the new proposals seriously curtail the rights of the clergyperson accused of any offence.” The canons would exclude a right against self-incrimination, require cooperation and report of one’s own offences (except those disclosed in the Rite of Reconciliation), cannot seek the interpretation of the canons from secular courts, and the standard of proof would be “a preponderance of the evidence” rather than the current standard of “clear and convincing evidence.”
While not coming right out and saying so, it would appear Pritchard finds the new standards a bit draconian.
Moving on to the rights and responsibilities of congregations, Pritchard sets out the best summary of the legal issues in property disputes, explaining with concision “the principle of hierarchy,” which tends to favor the national church, and the “neutral principles” approach, which can favor the local congregation. Pritchard notes the vulnerabilities currently existing with the Dennis Canon, which asserts that congregational property is held in trust for the diocese and denomination. Since any summary I would attempt would not do justice to Pritchard’s paper, I will only note that it is well worth reading if one is interested in these legal issues.
In the third secion on the rights and responsibilities of dioceses, Pritchard gives a favorable review to Mark McCall’s paper, “Is the Episcopal Church Hierarchical?” published by the Anglican Communion Institute, writing,
McCall’s analysis is cogent and based on good historical argument. One can note, however, that the deputies and bishops at General Convention have often operated under the assumption that they exercised the authority over individual dioceses that McCall points out is absent from the church’s Constitution. McCall responded to this potential argument by noting that the church has “a constitutional structure that cannot be changed by canon. Any attempt to do so would be unconstitutional as an attempt to amend the constitution without following the required procedures.”
Pritchard concludes that
Were the [secular] courts to agree with McCall’s analysis, moreover, there would be no way for the General Convention itself to alter the situation. Only the dioceses themselves could make the decision to become legally subordinate to the General Convention.
Pritchard concludes this section by casting doubt on the legal strategy pursued thus far of recognizing “continuing elements within departing dioceses as the legitimate authority.” Should McCall’s analysis prove correct, “the tables might well be turned” on the national church.
In the fourth section, Pritchard notes that the “Covenant Design Group will meet from 28 March to 2 April in 2009 in Cambridge, England,” and is expected to produce a final draft for submission to the Anglican Consultative Council, which is set to meet in Jamaica from 1-12 May, 2009.
Of the Presiding Bishop’s statement that she will “strongly discourage” action on the Covenant in Anaheim in July, Pritchard writes,
A decision by the Episcopal Church to defer consideration of the Anglican Covenant until 2012 and a decision by the Anglican Province in North America to endorses (sic) it might strengthen the hand of those in the Anglican Communion [who] would like to grant member status to the alternative province.
Pritchard thus appears to be warning the Episcopal Church that inaction or delay may result in its being out-flanked.
Pritchard sets out with refreshing clarity the many issues facing General Convention. All bishops and deputies in attendance (as well as interested third parties) would be well-served to read, mark, learn, and inwardly digest Pritchard’s article, particularly as he resists the temptation to advocate for any particular action on the part of General Convention.
Read it all here.