I
A pattern of uninformed generalizations and implicit concessions is to be found at the very beginning of Bishop Whalon's response. In his objection to my discussion of diocesan autonomy, he agrees that the principle of subsidiarity is "perfectly appropriate" as a means of understanding the relationship between the Dioceses and the central bodies of the church. Nevertheless, inexplicably he claims, "The concept itself was not around when the framers of our Constitution and Canons wrote it (sic)." The fact of the matter is that Bishop William White, though he did not use the term subsidiarity, clearly articulated the principle in his blueprint for the new church. In The Case of the Episcopal Churches in the United States Considered, he set forth a vision of a new church comprised of "voluntary associations" of local and state churches designed expressly "to retain in each church every power that need not be delegated for the good of the whole." This principle in turn became one of the "Fundamental Principles" adopted by his Pennsylvania state church (ironically the predecessor of the Diocese of Pittsburgh). It was also incorporated by reference into its first "act of association" that reads "That no powers be delegated to a general ecclesiastical government, except such as cannot conveniently be exercised by the clergy and laity, in their respective congregations." In short, though not labeled as such, the principle of subsidiarity was an explicit foundational principle of TEC's original organization.
So much for the uninformed generalization. What of the implicit concession? Bishop Whalon goes on to concede the basic point of my paper. He argues correctly that subsidiarity cuts both ways. He notes that the local body "owes" to the general body the rights and powers that only that body is competent to exercise. Unfettered diocesan autonomy, he correctly observes, would "make hash both out of historical precedence as well as what good church governance requires."
First, let me say that what a friend calls "the scare quotes" around the word "owes" are Bishop Whalon's and not mine. That said, while those on all sides of the current controversies are apt to agree that absolute diocesan autonomy "makes hash" of good church governance, the insertion of "scare quotes" around the word "owes" serves to emphasize the main point of my paper. TEC's constitutional polity is inadequate to deal with the current crisis. It contains, as I noted, "entropic" possibilities that will lead to TEC's disintegration. It is simply the case that, under the Constitution, TEC's Dioceses do not "owe" any rights and powers either to its General Convention or its Presiding Bishop. It is this arrangement that distinguishes TEC so dramatically from other churches in which the hierarchical obligation is stated explicitly in their legal instruments.
Now to return briefly to Bishop White's fundamental principle; the local bodies, the Dioceses, "delegate" powers to the general body as part of their "voluntary association." This arrangement shows clearly that the reservoir of power and governance resides in the Dioceses. Further, they maintain any power not explicitly delegated to a general body. Among the powers not delegated are the power to prevent a Diocese from withdrawing and the power to restrict a Diocese from nullifying actions on the part of a general body to which the Diocese objects. The only obligation a diocese "owes" to a general body in TEC is the obligation of voluntary submission, which is no obligation at all. It is a voluntary act. Its voluntary character is precisely the reason for the "scare quotes."
Having said these things, I do not wish to give the impression that I disagree with Bishop Whalon when he says that these arrangements can "make hash" of good church governance. As I have argued in my paper and many times elsewhere, "Bonds of Affection" are insufficiently strong to hold the Anglican Communion together. Further, "voluntary association" no longer works for TEC. Changes in polity are necessary both within TEC and within the Communion as a whole. The question is what the nature of those changes ought to be. Bishop Whalon tackles this question himself toward the end of his response, and I will do the same at the end of this one.
II
Before I do so, however, there are other objections to my analysis that deserve a response. Bishop Whalon and others often argue that Dioceses are "created" by General Convention. This claim, however, is an example of wishful thinking that ignores the legal precision of Article V of TEC's Constitution. This article is entitled "Admission of New Dioceses," and not "Creation of New Dioceses." The first sentence specifies General Convention's role in the process. It is to "consent." The wording indicates at the outset that the role of General Convention is secondary, not primary. It consents to actions initiated elsewhere.
The following sentences in Article V elaborate this process. The proceedings "originate" with a convention of "the unorganized area," not with General Convention. It is the unorganized area that "duly adopts" its own constitution. Article V then describes the legal entity created by the duly adopted constitution not, as before, as an "unorganized area," but as a "Diocese." Then the "new Diocese" submits its constitution to the General Convention for consent; and upon receipt of this consent, it enters into "union with the General Convention."
In this articulation of the steps involved in the creation of a new Diocese, Article V reflects the civil law. When an unorganized area adopts its own constitution, by definition it is no longer "unorganized." It is a legal entity. In the terminology of Article V, this entity is called a "new Diocese." This step, furthermore, occurs before the constitutional involvement of General Convention. What happens when the new Diocese obtains the consent of General Convention to its application is that it is "admitted" into union with the other dioceses in General Convention. The transformation from "unorganized area" to "new Diocese" occurs when the diocesan constitution is duly adopted. When General Convention gives its consent, another transformation occurs, but it is not the creation of a new Diocese. It is the transformation of unaffiliated "new Diocese" to member diocese of General Convention.
The logic of this process can be grasped by a hypothetical case. Suppose an unorganized area holds its convention and duly adopts a constitution. Suppose also that before applying to TEC for admission to General Convention it votes at its convention to apply not to TEC but to the Southern Cone. By definition, the General Convention has yet to give consent and admit the new Diocese. Nevertheless, the Diocese is fully constituted by adopting its own constitution and so legally capable of acting on its own behalf.
All this can be seen if one reads carefully the provisions of Article V, recognizing that this article reflects the operation of the civil law that relates the creation of religious societies and voluntary associations to the steps in the process of the creation and admission of new Dioceses. In the Roman Catholic Church the Supreme Pontiff creates Dioceses. In TEC, they are created by the adoption of a constitution on the part of a group of clergy and laity in an "unorganized area." Like Bishop Whalon, one might wish it was otherwise, but it is the language of Article V and not an informal understanding of diocesan creation that is decisive in these matters.
III
Bishop Whalon also gives voice to what many others have said about the application of the "abandonment canon" (Canon IV.9) to Bishops like Schofield and Duncan (and now Iker). He admits that the Canon contains "confusing passages," and that (unfortunately) "one can read it" to give the three senior Bishops a veto over its use. With others, he laments the perplexities associated with the Canon. In particular he questions the three Bishop panel of review. Nonetheless, he goes on to ask how the Canon might work, even given these perplexities.
The obvious response is that the Canon was never intended to "work" in the circumstances in which it is now being employed. It is confusing only when one is determined to use it for a purpose for which it was never intended. Its original intention was for use in cases wherein there was an uncontested abandonment of TEC for another body not in communion with this church. If anyone were to contest that abandonment for another body had occurred, be it the Bishop himself, the three senior Bishops, the Review Committee, or the House of Bishops (through failure to achieve a true majority) the Canon was not to be used. The point was to provide due process in cases wherein charges of violation of doctrine or discipline are contested. In short, one cannot rightly object to a Canon intended for use in uncontested cases on grounds that it gives three senior Bishops (on the basis of seniority alone) responsibility to review cases that are in fact contested. The procedural safeguards were put there for a reason. When they are invoked, the proper response is to use the appropriate procedure; not to object to the safeguards themselves.
IV
There is another common response to the cases of Bishops Schofield, Duncan, and now Iker that is not made by Bishop Whalon. It is sufficiently common, however, to deserve separate treatment. The charge is frequently made that all three have violated their ordination vows to uphold the doctrine and discipline of TEC. The objection seems plausible enough but it is in fact question begging. The objectors assume without argument that the discipline of TEC is such that what these Bishops have done is in violation of that discipline. But this is to assert what must be proved. What TEC's discipline requires is the question at issue. I have argued in my paper that the actions of the Presiding Bishop are in fact contrary to TEC's discipline. If one disagrees, it is proper to present a counter argument. It is not proper to say simply that TEC has a discipline and these gentlemen, or the Presiding Bishop (or for that matter anyone else) have acted in a way contrary to it. The issue before us is exactly what that discipline is. Again, as I have argued, we do not have a satisfactory constitutional way of adjudicating this question. As a result, we are placing its resolution in a political rather than a legal context; and the results of this move will prove disastrous for all.
V
Finally, I would like to point out where Bishop Whalon and I are in substantial agreement. Like myself, the Bishop is concerned that unfettered diocesan autonomy "makes hash" of good church governance. His view that our polity does not sanction such autonomy is I believe incorrect. However, in his conclusion he begins to wrestle with the actual predicament in which we find ourselves, and he indicates awareness of what is at stake for TEC and the Communion.
He notes that TEC's "Polity exists to support a dynamic missionary expansion as its first priority." He notes also that TEC's polity has enabled it to launch a quarter of the Anglican Communion's Provinces. He concedes, however, that this polity is not well suited to resolving conflicts within the church that concern doctrine and discipline. This inability exists because the effectiveness of the polity depends upon sufficient agreement on these matters.
It is at this point that he puts his finger on the essence of voluntary associations like TEC. They cannot resolve internal conflict if common agreement on fundamental issues does not exist. When common agreement dissolves, voluntary associations do as well.
The solution to this problem proposed by TEC's progressive majority is to impose "sufficient agreement" by transforming General Convention and the Office of the Presiding Bishop into a metropolitan hierarchy. This cannot be done legally for the simple reason that it is a solution in violation of TEC's Constitution and long history.
Bishop Whalon's conclusion, I am pleased to say, points in a very different direction. TEC's fundamental priority is that of a missionary endeavor that from the beginning has been inextricably linked with other Provinces of the Anglican Communion. Indeed, as a national church we are incorporated as the Domestic and Foreign Missionary Society and not The Episcopal Church of America.
This is as it should be. Continued fidelity to the priority of mission, domestic and foreign, requires that we constrain our idiosyncratic diocesan autonomy. The way to do that, however, is not with Metropolitans and other bodies that have been intentionally rejected throughout TEC's history. The way to do it is by continuing to align ourselves through the proposed Anglican Covenant to the larger Communion that has always been the focus of our missionary work and polity. This is the "more excellent way" about which I wrote in my paper.
