Clearing up Misconceptions about South Carolina

Reading articles and comments about what is going on between ECUSA and its Diocese of South Carolina, I find a level of misunderstanding which is preventing clear communication. Let me try to clear up at least a few points by using a Q & A format.

Q Exactly who sent to Bishop Lawrence the documents published on South Carolina's website which accuse him of "abandonment of Communion"?

A The cover letter for the documents has not been published. However, we know from Bishop Lawrence's letter to his Diocese that the Rt. Rev. Dorsey Henderson, President of the Disciplinary Board for Bishops, sent the documents to him, to inform him that charges considered "serious" had been lodged against him under the newly adopted Title IV disciplinary canons.

Q And who sent the charges to the Disciplinary Board?

A No one is admitting to having done so, but from their nature, two things appear: 1) they come from disaffected Episcopalians in the Diocese itself, and 2) many of the charges are identical to the ones about which a group calling itself "The Episcopal Forum of South Carolina" (for more information, see this earlier post) complained in a letter they sent last September to the Church's Executive Council and its House of Bishops.

Q Was no action taken on the charges at that time?

According to Episcopal News Service, the Executive Council responded to the Forum's letter, and explained that they had no canonical authority to act: "The letter says that the council and the presiding bishop are 'committed to doing what we can to help the Episcopal Diocese of South Carolina continue to participate fully in the life, work and mission of the Episcopal Church,' but notes that 'there are canonical limits to how her office and the Executive Council can intervene.'" (Emphasis added.) Those "canonical limits" had to do with how charges could be brought against bishops under the previous disciplinary canons in effect at that time.

Q What is different about the new disciplinary canons?

A A major difference is that under the new canons which took effect at the national level last July 1, any person can lodge charges against a bishop (or other clergy) by presenting them verbally or in writing to the "Intake Officer" (a new position created by the new Title IV on July 1). For bishops, that Intake Officer is the Rt. Rev. F. Clayton Matthews, who heads up the Church's Office of Pastoral Development in New Bern, North Carolina. I cannot prove it, but my guess is that the disgruntled members of the Episcopal Forum were invited by someone working for the Presiding Bishop to resubmit their charges after July 1, 2011 -- when they could be acted upon by the newly created Disciplinary Board for Bishops.

Q What could Bishop Matthews do with the charges once he received them?

A As explained in this previous post, his first task was to determine whether or not, if the charges were true, they would make out a "presentable offense" under the new Canons that took effect on July 1. If, for example, he decided in his judgment that the charges did not rise to that level, he could dismiss them -- with the consent of one other bishop. (New) Canon IV.6.5 says in part:
If the Intake Officer determines that the information, if true, would not constitute an Offense, the Intake Officer shall inform the Bishop Diocesan of an intention to dismiss the matter. If the Bishop Diocesan does not object, the Intake Officer shall dismiss the matter. . . .
Q And who would be "the Bishop Diocesan" referred to by the Canon in this matter?

A In all cases involving charges made against bishops of the Church, the new canons (IV.17.2 [c]) make the Presiding Bishop, the Most Rev. Katharine Jefferts Schori, the "Bishop Diocesan" for their purposes.

Q So the charges made against Bishop Lawrence could not have been dismissed in the first place without the consent of Presiding Bishop Jefferts Schori?

A That is correct. And if she had done so, we would never have heard about them being brought -- unless the complainants had appealed to the President of the Disciplinary Board (Bishop Henderson), and he decided to overrule the dismissal, and to send the charges to the Reference Panel. (There has probably not been time enough since the charges were filed for the appeal scenario to have played itself out to the point where we are now.) But if Bishop Matthews felt that the charges, if true, would amount to an "Offense" as defined under the new canons, then he could have sent them to the Reference Panel -- which is where they appear to have gone next.

Q And who is on this Reference Panel?

A In the case of bishops, the Panel consists of the Presiding Bishop, Bishop Matthews (the Intake Officer), and Bishop Henderson (the President of the Disciplinary Board).

Q What can the Reference Panel do with the charges, once they are before it?

A Upon referral of the charges, Canon IV.6.7 provides in part:
The president shall promptly select from the Disciplinary Board, by lot or by other random means, a Conference Panel and a Hearing Panel, and shall designate a president of each Panel. A Conference Panel may consist of one or more persons. A Hearing Panel shall consist of not less than three persons and shall include both clergy and lay members. The president shall be ineligible to serve on either Panel.
Q What do these other Panels do?

A Not so fast. Before they get into the picture, the Reference Panel itself has to decide how best to handle the matter. The other Panels become involved only as the Reference Panel refers the matter to them. Canon IV.6.8 spells out all the options which the Reference Panel has at this stage of the proceedings:
The Reference Panel shall meet as soon as possible after receiving the intake report to determine how to refer the report. Referral options are (a) no action required other than appropriate pastoral response pursuant to Canon IV.8; (b) conciliation pursuant to Canon IV.10; (c) investigation pursuant to Canon IV.11 or (d) referral for possible agreement with the Bishop Diocesan regarding terms of discipline pursuant to Canon IV.9. Referral decisions shall require the approval of a majority of the Reference Panel.
If the charges were filed right after July 1, the three-bishop Reference Panel could have met shortly afterwards, because Bishop Henderson was probably elected as President of the Disciplinary Board on July 1, as well. It does not appear that the Panel chose either of the first two options available to it, because of the nature of the letter which Bishop Lawrence received, detailing the charges against him which the Panel called "serious." And they certainly did not offer him any disciplinary terms under the fourth option. So that means they must have chosen to investigate the charges further, under Canon IV.11.

Q And what does that mean?

A Under (new) Canon IV.11, they would ask their appointed Investigator to look further into the charges, and to make a written report to enable the Reference Panel to determine how to handle them. But it looks, from what we know at this point, as though we are past that stage, as well.

Q Why do you suggest that?

A Because Bishop Lawrence's letter to his Diocese says that the letter he received was not from any "Investigator" working for the Disciplinary Board, but from the Board's President. The President does not do investigations; he supervises them.

Q So what does the letter coming from the President of the Disciplinary Board mean?

A Well, coupled with the fact that the Diocese's Standing Committee was also contacted, not by an "Investigator", but by the Church Attorney working for the Board, both developments suggest that the Reference Panel may already have completed its preliminary investigation, and may have decided, a week or more ago, to refer the matter to its Conference Panel -- again, rather than dismiss the charges at that point. The Church Attorney first gets involved when the matter has been referred to the Conference Panel, as described in Canon IV.12.1:
Upon referral of a matter to a Conference Panel, the president of the Disciplinary Board shall forward to the Church Attorney the intake report, all of the Investigator's reports and any other writings or other file materials created or collected by the Disciplinary Board or any panel thereof during the intake, investigative or referral process. From this material the Church Attorney shall prepare a written statement, describing each alleged Offense separately, with reasonable particularity sufficient to apprise the Respondent of the acts, omissions or conditions which are the subject of the proceedings. The Church Attorney shall then forward the materials received from the president of the Disciplinary Board, together with the written statement, to the Conference Panel.
Q Are the documents published on the diocesan Website the report by the Church Attorney?

A They do not look like it; they are less professional in appearance, and do not meet the description of what the Canon requires. Furthermore, the separate letter by the Church Attorney to the Standing Committee suggests that she is still gathering evidence for her report to the Panel. And so this is the point at which Bishop Lawrence is confidentially notified of the charges against him (it was Bishop Lawrence and his Standing Committee who decided to make the charges public).

Q All of the charges appear to stem from actions Bishop Lawrence is claimed to have taken before the new Canons took effect. How could the new Canons make conduct before they were enacted an "offense"?

A There is a provision in Section IV.19.32 which states:
No Member of the Clergy shall be accountable for any Offense if the act or omission constituting the Offense shall have occurred only prior to the effective date of this Title, unless such act or omission would have constituted an offense under the predecessor to this Title.
The charges against Bishop Lawrence are for "abandonment of the communion of this Church" under Section IV.16.1. The definition of that offense is still very close to how it was defined under former Canon IV.9, and so the elements of the offense have pretty much remained the same under both the old and the new versions.

Q How, in any sense of the word, can a Bishop who has insisted on remaining in the Church be accused of "abandoning" it?

A Before Bishop Lawrence's election was even confirmed by the rest of the Church, many others were arguing against his confirmation on the grounds that they suspected he would lead the Diocese of South Carolina out of the Church, once he got elected. Those same people have seen further evidence of such an intent following the Diocese's assertion of its autonomy, by its refusal to adopt the new Title IV, and the changes it made to its accession clause. To them, what they take as a "preparation for abandonment" is the same thing as "actual abandonment", and so they want to see a pre-emptive strike. No doubt such a prejudice accounts for the reaction of so many on the left to the current "charges": regardless of how insubstantial they are, they treat the bringing of charges as "confirmation" of their earlier suspicions. ("I knew we never should have confirmed him," etc.)

Q What can Bishop Lawrence do at this point?

A Ah, that is the crucial question. For it is at this point -- when Bishop Lawrence is first notified that charges have been brought against him under the new Title IV as in effect at the national level since July 1 -- that grave constitutional questions about the entire procedure arise.

Q What kinds of constitutional questions?

A Well, to begin with, the Diocese of South Carolina expressly refused to adopt the new Title IV within its borders. It is the old Title IV which still has effect in the Diocese of South Carolina. South Carolina therefore does not recognize the entire revamped process, starting with the "Intake Officer", which is being deployed against its Bishop.

Q But aren't all bishops in the Church subject to the Church's disciplinary canons as enacted by General Convention?

A In general that is true, yes. But that principle applies only to canons which are enacted pursuant to the constitutional authority which General Convention has to begin with. For example, General Convention could theoretically enact a Canon making it a disciplinary offense for all clergy to fail to read a verse from the Quran at every service of Holy Communion -- but it would lack the authority under ECUSA's Constitution to do so, because the Constitution leaves the rubrics of the service of Holy Communion to what is specified in the Book of Common Prayer.

Q How did General Convention lack the authority to enact the new Title IV provisions?

A The answer to that question is long and complicated. You could start with this post, and then follow all the links. The bottom line is that Bishop Lawrence and his Diocese do not concede that the new Title IV was enacted with constitutional authority -- and they especially do not concede that the Presiding Bishop has any authority to proceed against him under the new Title IV.

Q Who is the final decider of the constitutionality of the canons enacted by General Convention?

A That is just the problem -- no one is. ECUSA does not have a court for deciding such constitutional questions, and General Convention is not a court; it is a legislature. In the end, only the Dioceses can decide such questions for themselves.

Q But isn't that a recipe for anarchy?

A It is, once there is a serious disagreement. The solution would be not to take actions which some members (dioceses) of the Church believe to be unconstitutional. But that is not what the Church has done. I conclude that it must want to pick a deliberate fight, in order to see who is more powerful.

Q So I ask again: what can Bishop Lawrence and his Diocese do in this situation?

A Well, the first thing they cannot do is to concede the legitimacy of the investigation which is being carried out on the charges leveled against him. Those charges could not have been brought in that fashion under the old Title IV which South Carolina recognizes, and they would not have been handled as they are being handled now.

Q So he cannot refute the charges?

A Not in any way that would imply that he was taking part in the current proceedings, no. That does not stop him from rejecting them (indeed, he has already done so), or speaking out publicly against the disgraceful witch-hunt which they represent. Most of the charges do not rise above third-grade elementary school level, and none of them is what could genuinely be called "serious." Bishop Henderson ought to be ashamed of himself for using that word to describe them.

Q What happens if the Presiding Bishop uses her new powers to inhibit Bishop Lawrence?

A He ignores it as an unconstitutional act, and goes right on being Bishop of South Carolina.

Q But what happens if she then asks the House of Bishops to depose him?

A The House of Bishops could never legitimately do so.

Q Why do you say that?

A Because the proceedings leading up to any such vote will have been completely unconstitutional, and the House of Bishops by any action it takes could not legitimize those proceedings. (And even if those proceedings had been brought under the old Title IV, the House could never muster the required number of bishops it would take to approve his deposition -- but that is all academic now.)

Q But what if it goes ahead and does so anyway?

A As long as he has the support of his Diocese, Bishop Lawrence's position as its diocesan is unassailable. He would ignore the sentence of deposition, and simply continue to function as its bishop.

Q Couldn't the Presiding Bishop sue Bishop Lawrence in the South Carolina courts to force him to be removed from office?

A Such a suit, if filed, would go nowhere. In the first place, as the Court of Appeal already ruled in the San Joaquin litigation, the question of who is the proper bishop of a diocese is a "quintessentially ecclesiastical" question, which the First Amendment precludes civil courts from deciding. And in the second place, if the Presiding Bishop were to try to do so, her own canons could be used against her.

Q How could her canons be used against her?

A Because a provision of the newly enacted Title IV (Section IV.19.2) states expressly:
No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons, or for any purpose of delay, hindrance, review or otherwise affecting any proceeding under this Title.
Not only would such a lawsuit be "reviewing or affecting" a proceeding under Title IV itself, but it would also ask the secular courts to resolve "a dispute arising under the Constitution and Canons." The South Carolina courts, I predict, would not hesitate in dismissing any such suit.

Q And what if the Presiding Bishop were to "derecognize" the Standing Committee, and convene a special convention of the Diocese to elect a new bishop, as she did in San Joaquin, Fort Worth and Quincy?

A Such a move, if she were foolhardy enough to carry it out, would show her up for the empty authority which she is. Any "special convention" she could muster would represent, at most, a tiny fraction of the entire Diocese, which is some 26,000 members strong. Any "diocese" they could create would be economically unsustainable, and would have to be merged with another one to survive. And then where would her "Diocese of South Carolina" be?

Q But what would happen to the real Diocese in the meantime?

A Conceivably, it might have to bide its time until ECUSA and its House of Bishops came to their senses. But that would be no loss -- it would not have to incur the expense of sending any deputies to a meaningless General Convention, and Bishop Lawrence would not have to sit among many fools, spineless supplicants and enablers. Perhaps some other bishops and dioceses would be emboldened to take a stand -- once they saw how Bishop Lawrence and his Diocese fared despite all attempts to remove him. I do not deny there are such who could be motivated to do so; but given the lack of character they have demonstrated with all of her depositions to date, they appear individually at this point to be cowed. (However, any such bishops should read this recent post by Fr. Dale Matson to realize how they could be next on Bishop Katharine's little list.) Unless there is a move to challenge the Presiding Bishop from the strong, unified stance that many bishops acting together could provide, she will continue to have her way in undermining, and eventually destroying, the foundations of the Church.

In the final event, if ECUSA never came to its senses, the Diocese, along with any other Dioceses who had seen the light and stood up to the Presiding Bishop, could form the nucleus of a strong new Anglican province to replace it. The irony is that if those Dioceses never changed their governing documents to take themselves out of ECUSA, it would force ECUSA itself to change its governing documents to kick out the Dioceses. I would love to see the folly of its doing so -- especially after Bishop Jefferts Schori has repeated for all these years, so often, her mantra that "people can leave, but dioceses never can." What a joke that would be!

And on that fantastical note, I shall end this post.

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