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The Discipline of Canonical Enforcement
4 February 2001
As the Executive Council meets this month, one major question they will consider is how to implement General Convention Resolution A045. This concerns the enforcement of womens ordination in the three remaining Episcopal dioceses that do not grant women priests licenses to serve in them, nor ordain women to the priesthood.
One way to force compliance would be to serve their bishops with presentments for violating the discipline of the Episcopal Church. But presentments against bishops have been heretofore rare. The most recent, brought against Bishop Charles Jones of Montana, has elicited a lot of commentary about its fairness, since the charges against him were supposedly dealt with in a pastoral manner in 1993 by the Most Rev. Edmond Browning, then Presiding Bishop. The previous presentment, brought against Bishop Walter Righter for violating the doctrine of the church by ordaining a gay man, never reached a trial. Only two other bishops have been actually brought to trial since the Episcopal Church began. If the Council decides to go forth with canonical enforcement, presumably presentments will eventually be brought against Bps. Keith Ackerman of Quincy, Jack Iker of Fort Worth, and JohnDavid Schofield of San Joaquin.
Contemplating this record number of possible presentments (fairness presumably would require that they all be charged simultaneously), one recalls that only recently election to the ecclesiastical court of a diocese was a quick way to garner more stuffing for a clerical resumé without doing any work. We solved almost all of our problems "pastorally," which is to say quietly and without lawyers. Invoking disciplinary canons was almost unAnglican, it seemed.
This gentlemanly state of affairs came crashing down with a series of lawsuits that began when the Diocese of Colorado had to pay out a large sum of money over a priests affair with a parishioner. One problem was that the disciplinary canons did not spell out that such conduct was actually wrong. In the land with more lawyers per square inch than any other nation on earth, underemployed barristers were quick to exploit the newfound pot of gold. As a goodly number of predatory clergy had escaped facing the consequences of their behavior through the pastoral back door, the churchs insurers soon began requiring all kinds of measures to limit liability. These included a complete revision of the disciplinary canons. Pastoral was out, disciplinary was in.
Clearly the old system was just plain wrong. It emphasized the need for the church to forgive, rather than hold people accountable for their actions. While forgiving errant clerics, the church also tended to "forget" their misdoings, so that they could resume their activities in another parish. In Bp. Jones case, he never complied fully with Bp. Brownings prescriptions. His trial has made it clear that even a sitting bishop can and should be held accountable.
Beyond moral transgressions, there is the issue of enforcing the churchs discipline. It is worth pointing out that the three bishops who ordained the first eleven women at an irregular service in 1974 were never brought to trial for violating the churchs discipline, though the 1973 General Convention had voted down ordination of women to the priesthood. No bishop to this writers knowledge has ever been brought to trial for breaking the discipline of the church, in fact. The three bishops in question will insist that they are not violating the norm of the Anglican Communion, since many provinces still do not ordain women. Furthermore, they continue to have the backing of their dioceses. The other side of the coin is the injustice of having a nonuniform standard within the same province in which women priests are denied the opportunity to serve. But are presentments the best way to rectify the situation?
Then there is the issue of bishops violating the doctrine of the church. Clearly, the general sentiment after the Righter affair is that heresy trials are not appropriate. The last time the issue came up was the case of Bishop James Pike in the 60s. Presiding Bishop John Hines named a blueribbon panel of theologians to issue a report on whether Pikes unorthodox views, stated with a confrontational flair, should be subject to presentment. They replied that since the great heresies of the past have been settled, it is now a question of good theology correcting bada pastoral approach. The Righter verdict did not go down this pastoral road, but rather found that there had been no violation of the churchs doctrine. (Its definition of doctrine was so minimal, however, that a new canon had to be inserted in the section on discipline defining the sources of Episcopal Church doctrine.)
In all three areas, cases of moral transgressions, violation of discipline, and holding of false doctrine, the church is moving toward using thecourts to settle matters. This raises a number of questions.
First, how are we to differentiate between instances in which disciplinary action is called for and those where a pastoral approach is still more appropriate? Who should make those determinations? Bringing presentment against the three bishops, for example, will probably make martyrs of them, and thus prolong the matter rather than bring it to an eventual end. More routinely, perhaps, will priests ever feel free to confide in their bishops again?
Second, when a priest or bishop is brought up on charges, is it not incumbent upon our courts to provide for a "public defender," since most clerics do not have the means with which to hire competent legal defense? If not, then the use of presentments will be subject to abuse, as the threat of presentment and ensuing bankruptcy can become a tool for enforcing conformity.
Third, the firewall that separates presentments for moral turpitude and violations of discipline from charges of heresy is a lot thinner than many believe. If the ecclesiastical courts become busy with the first two, then it is only a matter of time before someone invokes those canons that forbid holding publicly and advisedly teachings contrary to this churchs doctrine. Just as we have been vague about definitions in the old disciplinary canons, but now have clarified them and are willing to use them to bring charges, so will people exploit the courts to try to clarify issues of doctrine, and bring about conformity.
This is a good time to consider carefully when to be pastoral and when discipline is unavoidable. We needed to change the traditional Anglican avoidance of canonical discipline, but we have hardly begun to think through the ramifications of this shift.
Fr Whalon welcomes comments or questions about this essay. You can write to him at email@example.com.