Misrepresenting ACI’s Concerns About The Constitutionality of Supplemental Liturgical Material
Written by: The Reverend Canon Professor Christopher Seitz & Mark McCall, Esq.
Last week we published an analysis of proposals to have this General Convention authorize supplemental liturgies that would be neither part of the Book of Common Prayer nor a proposed revision of it. Based on the detailed text of Article X of TEC’s Constitution, we concluded that General Convention does not have this authority and that whatever authority does exist to authorize supplemental rites resides in the bishop of each diocese. We noted that the Standing Commission on Liturgy and Music appears to agree with us since it has proposed amending Article X to assign this authority to General Convention and explained the need for such an amendment with an analysis of that article that is identical to our own reading.
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Tobias Haller, who served on the Marriage Task Force that has put forward various proposals to the upcoming General Convention, objects to our analysis.
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Perhaps Haller’s title was only a rhetorical flourish; and so we should address the substance at issue. His main argument appears to be that if something has been going on for a long time it must be constitutional. For starters, he should take this point up with the SCLM and the Standing Commission on Constitution and Canons, which jointly have been attempting over the last 25 years to amend Article X of TEC’s Constitution to give General Convention authority to authorize these supplemental materials. If they are constitutional anyway, why the bother? Why try again now?
In any event, Haller’s legal reasoning at this point is naïve, common though it may be. Constitutional questions are not something like adverse possession: as if doing an unconstitutional act openly and notoriously for ten years makes it constitutional. There is often a significant period of time when the unconstitutionality of a legislative act goes unrecognized. Indeed, whenever a court finds such an act unconstitutional it is true by definition that a majority of the legislators themselves had previously thought the act constitutional. And there are well known cases in which the Supreme Court itself had previously upheld the constitutionality of statutes it was later to strike down. As we know, Brown v. Board of Education overruled a similar case…
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Finally, we end by noting the first point we made in our essay to which Haller objects. There is a New Episcopal Church, which he seems to be defending. It has cut the constraints tethering it to constitutional governance and Prayer Book worship and is soaring Icarus-like to ever greater heights. What could possibly go wrong?
Without a constitutionally defined episcopal office and a Constitution respected as such, TEC will become a triennial General Convention Church with triennially defined identity.
Read it all and the earlier ACI analysis ‘The Episcopal Church and The New Episcopal Church’ is here
TEc is already a church with a “triennially defined identity” and that does not sound like something that is particularly appealing to newcomers.
I think the deck chairs would look nicer if they didn’t face the iceberg.
The priceless money quote that sums up the entire history of TEC become NEC:
“There is a New Episcopal Church, which he seems to be defending. It has cut the constraints tethering it to constitutional governance and Prayer Book worship and is soaring Icarus-like to ever greater heights. What could possibly go wrong?”
Don’t expect anyone in the NEC to see their situation clearly if they haven’t already seen it, now long after the wax has melted from the wings and many of the feathers are floating in a downward trail, just because the final hard landing still lies in the (likely near) future.
[The following comment is by Mark McCall– 1/3]
Tobias Haller has now [url=http://blog.tobiashaller.net/2015/04/the-authority-for-worship-forms.html]replied[/url] to this piece. I will provide a surrebuttal here (look it up!).
To begin, I will concede an error. Haller points out—with photographic evidence no less!—that I used the wrong font for the word “and†in a quote from a prior SCLM report. I was unaware of this typo until Haller brought it to my attention. That said, I am not concerned that anyone familiar with the BCP rubrics was led astray by this error since the meaning of the quote was clear to all notwithstanding the inadvertent italicizing of “and.â€
Turning to substance: the thrust of Haller’s reply is to re-litigate the issue of hierarchy. He regards the General Convention as the supreme authority in TEC and his view of its constitutional prerogatives flows from that. He rightly notes that ACI takes a different position. He says we have persuaded some of our view, but not most. I agree. The title of the article to which he originally objected after all was “The Episcopal Church and the New Episcopal Church.†The main thesis of that essay was that a new church has been created by those who have abandoned constitutional governance and the rule of law. We hardly would be making such a claim if the current majority concurred with our view of what constitutes rigorous constitutional adherence.
One thing the last few years has demonstrated is that there is no shortage of opinions as to what the polity of TEC “really is.†TEC’s governing document has become a Rorschach constitution onto which people project their preferred view of church polity. TEC’s own expert has testified in court that “the question, of course, is how hierarchical it is, and that’s a long-standing debate….†But no one with intellectual integrity can continue to maintain that TEC’s governing document expresses clearly in legal terminology a central hierarchy with General Convention supremacy.
[The following comment is by Mark McCall– 2/3]
When one steps outside one’s own wishful thinking and into the world of a neutral arbiter considering legal evidence reality must be confronted. No one would expect Haller to be familiar with the testimony of the multiple witnesses and thousands of pages in the legal record from the two-week trial in Quincy in which the nature of TEC’s polity was the primary issue litigated. But I was there. (I choose Quincy because it was the first case in which the hierarchical structure of TEC was fully litigated. TEC’s appeals in that case were unsuccessful, and it will now be confronted in other cases with the argument that the Quincy ruling is binding on TEC in all cases under the doctrine of collateral estoppel.)
Here is what TEC’s expert witness said under oath and under cross-examination in Quincy:
[blockquote]“Q: Based on that statement, you have made the – you have actually made the statement? A: Yes. Q: That the hierarchical nature of the Episcopal Church is evident, reflected, and the supremacy that that shows continues to be reflected. You use these terms in several sections of your statement. Does that look right to you? A: That looks right to me. Q: Meaning that it is not expressed? A: It is not expressed, yes.â€
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“Q. Now I think you have testified before that there is no language of supremacy or hierarchy in the Constitution of the Episcopal Church? A: Yes.â€[/blockquote]
In his written affidavit he went so far as to say that “in the case of The Episcopal Church in the 1780s, where no such competing authorities existed, language of supremacy in the Constitution was unnecessary and, indeed, inappropriate.†Absent, unnecessary, inappropriate. Those who continue to claim that TEC’s Constitution “expresses†a hierarchical governance with General Convention supremacy need to confront the legal evidence. These admissions were not made lightly.
After hearing all the witnesses and reviewing the documentary evidence, the court adjudicated this issue as follows:
[blockquote]There is no explicit provision in TEC’s Constitution or Canons specifying the office or body having supremacy or ultimate authority over the acknowledged Ecclesiastical Authority of a Diocese, i.e., a Bishop or a Standing Committee in the absence of the Bishop….Based upon this record, the court finds that, despite the general hierarchical structure of TEC, the determination that the General Convention is the highest ecclesiastical authority over the disputed property issue is not readily ascertainable.[/blockquote]
(The court in South Carolina made a similar finding after a lengthy trial: “There is no supremacy clause or other provision unambiguously giving any central body or officer of TEC governing authority superior to the diocesan bishop.â€)
[The following comment is by Mark McCall– 3/3]
Haller claims, however, to have found a smoking gun, an argument not pressed by TEC in the litigation:
[blockquote]He [McCall] has failed, however, to note the significance of the word “General†and its implications in an ecclesiastical context. “General church†is a term of art in many legal cases (including SCOTUS) concerning local churches that are part of a hierarchical church, of which The Episcopal Church is one….[/blockquote]
Perhaps the reason TEC has not pressed this argument in court is that Haller himself has failed to note that the two paradigms of congregational polity, the “Congregationalists†(UCC) and the Southern Baptists, both use this “term of art†in their decidedly non-hierarchical polities. The UCC has a “General Synod†and the eponymous convention of the Southern Baptists is described as “a general organization for Baptists in the United States and its territories†in the opening lines of its constitution. The term “general†without the proper legal terminology indicating a hierarchy is a geographical term essentially meaning “churchwide.†It is not a signal of hierarchy as the above examples prove.
I have spent time on the hierarchy issue because Haller raised it and the supremacy of General Convention is the unspoken premise in his arguments. The remaining points he makes are ones that have been ventilated in detail elsewhere, both in court and in public debate. I will just flag them here and point to where the longer discussion is found.
Haller follows the Standing Commission on Constitution and Canons (in its Blue Book report) in making the specious argument that General Convention must be the ultimate adjudicator of constitutionality because TEC lacks any tribunal with final authority in such matters. (This is one of those places where Haller’s assumption of GC supremacy is an essential premise in his argument.) But absent this question-begging premise this argument is an obvious non sequitur; the premise “TEC lacks a tribunal to adjudicate constitutionality†leads to the conclusion “there is no tribunal to adjudicate constitutionality,†not “I get to pick the entity I like.†For this reason, this fact actually undercuts TEC’s primary argument in the law courts. One of the findings on which the decision in South Carolina was based was “TEC does not have an ultimate judicatory.†The SCC report is actually more evidence for that, not that it is needed at this point.
I have discussed this issue thoroughly, including some of the candidates proposed as the final tribunal throughout TEC’s history, in my 2013 [url=https://s3.amazonaws.com/aci-274fc66252a/a4aa79c58cb441b1872686537f62c63a/Affidavit+of+Mark+McCall+(SC).pdf ]South Carolina affidavit[/url], paragraphs 125-130.
Another place where Haller’s assumption about the supremacy of General Convention comes into play is his discussion of the BCP rubric on p.13. The problem with his analysis is that the rubric refers to “authority within this Church†but never mentions the General Convention. The best way to interpret this phrase is by reference to the constitutional article pursuant to which the BCP is adopted and amended and that article recognizes the “authority†of the diocesan bishop over supplemental rites and ties this authority explicitly to the BCP rubrics. One yanks the word “authority†out of this context only when one is pre-disposed to equate “authority†with General Convention. If this one rubric answered the question there would hardly have been multiple unsuccessful efforts to amend the constitution to assign this authority to General Convention.
Again, Seitz and I discussed this rubric and Article X in detail back in [url=http://www.anglicancommunioninstitute.com/2012/07/same-sex-blessings-what-did-general-convention-do/]2012[/url]. I won’t go on further.
I am going to have this be my final comment. Virtually every argument that Haller, et al., have been bringing up, is one that ACI has answered some time ago, yet still they are bringing it up again, as if no one has noticed the empty repetition. To be sure, in the blogworld, no one bothers to go through the (hundreds of) pages generated by the current debate over our polity. Fortunately, law courts have to do so, and in doing so, as in Illinois and elsewhere, they have recognized Haller’s arguments for what they are: wishful thinking. Haller’s ongoing but shifting commentary on these matters—in which he manages the all but inconceivable feat of simultaneously opposing both ACI and the SCLM—combines typographical exactitude with a constitutional elasticity that is apparently too much even for the SCLM—all expressed in his own idiosyncratic legal vocabulary. Words, including constitutional language, mean what we say they mean because we are the majority and have determined it to be so. The New Episcopal Church welcomes you.
It further appears that some convergence in specious argument now links the ruling of the Standing Commission on Constitution and Canons and Haller’s most recent comments at his blog, as Attorney McCall intimates above. We are in other words facing a concerted effort from various angles to invent a polity of the New Episcopal Church: Bishop Whalon’s ‘Primer’, the SCCC, and Haller. One does wonder what sort of Bishop would encourage a polity in which his/her own role is so radically redefined, to the point of being mere agents of a triennial convention and without episcopal discretion re: constitution and canons.
This is why they are called revisionists.
Thank you Wildfire/McCall. I have followed your and ACI’s posts for a number of years.
The tragedy is their “wishful thinking” has destroyed a grand church, one that once was seen as a real bridge between the Roman Catholic Church and Protestantism. Alas, the Lord of the Church will have to create other means to gather his People together, even as these wolves scatter them.