Posted on 03/10/2005 5:55:28 PM PST by sionnsar
When the House of Bishops meet in Camp Allen, Texas this week they will consider, among other things, proposed revisions to the disciplinary canons that govern not only the behavior of Episcopal clergy but laity as well.
A draft proposal will be presented to the bishops to reconsider revisions to Title IV with regard to the "fitness for ministry, accountability and ecclesiastical discipline."
What is being considered, however, is more sweeping in its implications with far reaching consequences not merely for the clergy but laity as well. The disciplinary canons were originally constructed on THE Uniform Code of Military Justice used by the U.S. armed services; the changes now being considered make the canons closer to a pastoral model that could have far reaching consequences - mostly negative to ordinary Episcopalians.
Three main issues are on the table.
The first is that lay people would now be subject to the canons and not just the clergy. "The new revision defines minister as encompassing all lay people and clergy of the church and then subjects all ministers to proceedings under this title for alleged violations of the constitution and canons of the Episcopal Church, or even for violation of the Prayer Book rubrics," said Drell.
Secondly under the new provision even a lay person cannot seek to have the canons and constitutions interpreted by the secular courts without risking excommunication from the church. By implication it binds an Episcopal lawyer, who will then be torn by his ethical duty to his client and his membership in the church. While a less sweeping provision states similarly in the current canon the canon never applied to lay people, backed by the potential for ecclesiastical discipline or excommunication.
Brad Drell, church attorney before the Ecclesiastical Court in the Diocese of Western Louisiana and a deputy to General Convention in 2006 told VirtueOnline, that this revision has a subtle agenda that will profoundly affect conservatives in the church. "Laity being under the canons is a new thing. It appears you can be disciplined for seeking a review of the Constitution and Canons in the civil courts. This means that revisionist Pennsylvania bishop Charles E. Bennison could defrock Fr. David L. Moyer again for seeking review in the civil courts, and the initial error by the bishop becomes a red herring. Furthermore the courts have already established that they won't get involved where a minister or member has resorted to civil courts and is kicked out for doing so."
Thirdly and perhaps most dangerously, is that the entire structure of these revisions are that you are going to end up with hearing panels with a partial court. The president of the "Fitness Board" (nee court) picks the members of the hearing panel for proceedings under this title, it will not be done by lot, said Drell.
"Put together it is a plot for control," says Drell. "On the one hand lay people are subject to the canons, and secondly those same lay people cannot go to the secular courts, and thirdly the powers that be get to pick the hearing panels and not Diocesan Convention."
"So if a liberal person is the president of the board of review, he will likely pick three liberal members, and if you go to a secular court then you could be excommunicated," he said.
In every other judicial system of the free world if you have more than one judge in a particular court the assignments are either handled on a rotation basis or by lot to assure fairness and to keep the courts from being stacked against a particular party. That would be wiped out here. Drell also said: "Every other Episcopalian lawyer with whom I have shared this information with regarding the picking of the review panels has cringed. It smacks of unfairness. I also shared these concerns with the subscribers to the House of Bishops Listserv, and no one has yet defended these provisions. The potential for abuse of power by the passage of this canonical revision is obvious."
The Disciplinary Canon "revisionists" definitely had a few things (or people) in mind when they set to work on this travesty, Drell told VirtueOnline. "I see a coming church war in the ecclesiastical courts, the likes of which we have never seen before. Those behind this disciplinary canon revision appear to me, at least, to be sharpening their swords. I would suggest now is not the time for such revisions while our church is seeing a tremendously increased amount of disciplinary proceedings stemming from disagreements over doctrine. We need to work on reconciliation among each other and the Anglican Communion, not how to tilt the battle in case we don't reconcile," Drell said.
The Episcopal Church is proposing a new set of disciplinary canons that is not only undemocratic, it wipes out any chance for redress in the secular courts, allowing only the holders of power, and they are nearly all liberal, to run the Episcopal Church and excommunicate anyone who stands up against them.
"The chess pieces are being moved on the periphery of the board, and we had better be watching. As a church attorney this revision is a step in the wrong direction. Instead of more definiteness in the law and procedural aspects of church discipline, it is more ambiguous and attempts to address even more situations, when our current Title IV doesn't adequately address the things before it."
Drell said that while it is a noble idea to have kinder, gentler proceedings - more akin to professional discipline for psychologists, there is a lot more to being a minister than a psychologist - issues of doctrine, for one.
"It would be very easy to run afoul of these canons and be judged in an extremely subjective manner. Evidence could be manipulated and with no juridical base, judgments could be made that would not hold up in a court of law."
"While some may recoil at the idea of having standards similar to those for lawyers, I can say that at least the lawyer disciplinary standards are clear, and you can only be disciplined on clear and convincing evidence. That is to be preferred to the situation than is found in our current canons. People lie and attempt do vengeful things within professional discipline against lawyers, and so too with priests."
David C. Anderson, JR., son of the president of the American Anglican Council, Canon David C. Anderson said on Drell's Blog (http://descant.classicalanglican.net//index.php?p=56#comments) making the laity subject to canon law recalls to mind the Monte Python skit: Ha! no one expects the Anglican (or Episcopal) inquisition! Except that in reality it would be terrifying.
Drell did have praise for the covenant idea set out in the draft, that is, a pre-trial diversion procedure. "I think the idea of forgiveness is certainly a concept that ought to be in our disciplinary canons."
But Drell took exception to calling the Ecclesiastical Court a mere fitness board, arguing that it denigrates the nature of the disciplinary body.
"Why the name change? Trying to make it warm and fuzzy doesn't really change what it will do." Drell also expressed alarm that the hearing panel arrangement had no appeal to the main body of the court.
"An appellate right at the provincial level isn't a substitute for a local appeal or a trial by the entire court. Essentially, the revision limits the 'jury' for the respondent to three, rather than nine people. This is a bad idea. If someone draws the wrong panel, they lose; if they pick the right one, they win. There is no chance for the entire body of the court to make a decision."
Drell said it would be disaster to have the "President" or Chief Judge of the court pick the members of the hearing panel, the review panel, or any other "panel" subset of the court. The deck would be loaded against conservatives; to be fair to all parties concerned it has to be done by lot.
"To resort to the civil courts for anything having to do with the Constitution and Canons of the Church, or any proceedings in this title is a disaster. What if we run amuck, and violate our own Constitutions and Canons? Churches have certainly done that from time to time. Under the First Amendment, the courts won't address these situations except where our own rules are clear and provable; I think that is enough protection for our church."
Traditional Anglican ping, continued in memory of its founder Arlin Adams. I am not an attorney, but this looks like an end-run on the property issue also, at least on the issue that if ECUSA winds up outside the Anglican Communion, it is no longer the church defined by its consritution.
"...but this looks like an end-run on the property issue also"
I'm no attorney either, but I think you are right. ECUSA has slipped into full worldy mode when to get at the truth one merely has to 'follow the money' (or property in this case which is really the same thing).
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