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Proposed Episcopal Church Canons Target the Laity [!]
Transfigurations ^ | 5/01/2006 | Raymond Dague

Posted on 05/02/2006 5:33:49 PM PDT by sionnsar

On a late afternoon last fall, Fr. Paul Kowalewski made a phone call to my rector. At the time Kowalewski was the canon to Bishop Gladstone “Skip” Adams of the Diocese of Central New York. Several years back Bishop Skip gave Fr. Kowalewski the title “canon visionary." The purpose of his call was to complain to my rector about an essay which I published online in June of 2005 entitled "The Theology of Heresy in Central New York".

That essay was highly critical of a diocesan invitation to bring Jesus Seminar theologian Marcus Borg to present a series of talks to Central New York clergy. Dague’s essay was divisive, said Fr. Kowalewski. Raymond Dague should be subjected to church discipline for his conduct, Fr. Kowalewski told my rector. Flabbergasted by the suggestion, my rector said, “You want me to excommunicate him for writing an essay critical of Marcus Borg and the diocese!?” My rector immediately said “no” to the diocesan canon’s suggestion, and then called to tell me about the phone call.

I immediately hit the books to look into how a diocese could exercise church discipline against a lay person. I discovered that a bishop and the diocese cannot discipline a layman in the Episcopal Church. This is a legacy from colonial times when an American church was as nervous of the arbitrary power of bishops as it was of the arbitrary power of the British king. Since its founding in the days before the United States Constitution was written, no bishop or diocese of the Episcopal Church can discipline any layman. Only clergy are subject to a bishop’s discipline.

But if some folks have their way at General Convention 2006 that will all change. Laity, including chancellors, church lawyers, bloggers, wardens, vestrymembers, treasurers, secretaries, clerks, lay activists, or even the directress of the parish altar guild would be subject to punishment by bishops which can include removal from any church position or office.

The mechanism for this is a complete revision of the entire chapter on church discipline. This proposed replacement to the existing Title IV of the Canons can be found in the 2006 Blue Book as part of the report of the
Task Force on Disciplinary Policies and Procedures.

Catherine M. Waynick, the Bishop of Indianapolis, in the summary of the revisions identifies what she says is “a need to be able to hold lay members of the Church accountable in their formation and behavior in leadership and ministry roles in the community of faith.” According to Bp. Waynick the “new canon proposed in this report reclaims the broader meaning of discipline.” And because this new canon is so complicated and different from the existing disciplinary canons, the committee which proposed the canons says that “we have enlisted the help of professional communicators, who have graciously offered their talents as a gift to this work” to explain them to us.

Well, the “professional communicators” have not delivered their verdict as of this writing, so as a canon lawyer, I will lend a few thoughts to the endeavor. Others in the coming weeks will give a detailed legal analysis of these disciplinary canons covering them section by section. I will not do that here. My analysis is geared to the lay person, not the canon lawyer. I will review how these proposed disciplinary canons affect the laity.

The first thing the proposed canons do to accomplish their desired result is to define “minister” to mean “any lay person who is an adult member of this Church.” Proposed Canon IV.2 In other words, everyone other than the kids in the nursery are defined as ministers.

Then under the “Accountability” provision it says that a “Minister shall be subject to proceedings under this Title for: the commission or omission of any act which would justify the use of the Disciplinary Rubrics in the Book of Common Prayer [or] knowingly violating or attempting to violate, directly or through the acts of another person, the Constitution or Canons of this Church or of any Diocese.” Proposed Canon IV.3.1(a)(b)

Under current rules, only my rector could discipline me using the Disciplinary Rubrics in the Book of Common Prayer found on page 409 of the prayer book. It is called excommunication, or denial of the sacrament of the Eucharist. It can only be done to “a person who is living a notoriously evil life.” And who better to know that than your priest. But under the new proposed canons, anyone could charge me with that.

Does this mean I could file charges against Gene Robinson’s same sex partner for being “a person who is living a notoriously evil life,” and he could file counter charges against me for filing “homophobic” charges against him? Could Gene Robinson’s same sex partner be charged for taking a hotel room with Gene for the night within the boundaries of a traditionalist diocese? And then some diocesan court somewhere decides? Traditionalist and revisionist activists could make a cottage industry out of following their enemies and charging them with offenses. This should make for an interesting church experience for us all.

Also under the proposed canons, violation of any canon of the church or any canon of any diocese could result in charges. Every lay person better start taking his copy of the canons around with him along with the Bible and the Book of Common Prayer. And you better have a good canon lawyer on retainer, since the average layperson does not know what is in the canons or how to apply them.

Which bishop or diocese can try the layperson on charges? According to Proposed Canon IV.19.5(a)(b) a lay person shall be subject to disciplinary proceedings in the diocese where he is “canonically resident or in any diocese in which an Offense is alleged to have occurred.”

Canonical residence? In the existing canons, only clergy, not laity have canonical residence. Under the new proposed rules, we laity now will all have “canonical residence” where we live or attend church. Proposed Canon IV.19.6

In addition even a bishop or diocese where we are not canonically resident can charge us “in any diocese in which the Minister has performed his or her Ministry.” I suppose this means that I as a New Yorker could be hauled up on charges in California for giving a speech there, or Episcopal bloggers might be brought up on charges anywhere the internet goes.

How far can a bishop reach back to bring a layperson up on charges? According to Proposed Canon IV.4 there is no statute of limitations. Something I do the day after the new canons take effect can be used against me 30 years later. The civil law with statutes of limitation are not this draconian.

I am the assistant chancellor for the diocese of Albany. Can my bishop in Albany protect me from charges elsewhere? Nope. Under Proposed Canon IV.19.5(c)(d) my Albany bishop’s decision that the charges against me from somewhere else should be resolved in his court can be overruled by the president of two different disciplinary boards, depending on where the charges were filed against me.

How much evidence does the court need to prove that I did something wrong? Not much, say the new rules. According to Proposed Canon IV.19.15 the church uses the standard of proof by “a preponderance of evidence.” For the non-lawyers, that is the lowest level of proof in the law.

The toughest standard of proof is “beyond a reasonable doubt” which is used in criminal cases. Below that there is the lesser standard of “clear and convincing evidence” which is used in lots of situations where the matter is very weighty, yet it is not a criminal case, such as in New York family courts when you are charged with neglecting or abusing your children. The lowest standard is “a preponderance of evidence,” which is used with personal injury cases.

The existing standard of proof in the current disciplinary canons (which cover only clergy) is “clear and convincing evidence.” The existing rules presume that church discipline is a matter of much importance. The irony of the church lowering the standard in these proposed canons to the level used in an automobile negligence lawsuit is too obvious for comment. I suppose this is consistent with lowering standards of sexual morality.

Space does not permit me to describe the long and convoluted procedures used under the proposed canons to conduct these disciplinary proceedings. Clearly we will need to await the professional communicator’s report to figure them out. As a canon lawyer, I am still working on them. If someone is brought up on charges, given the complicated nature of the procedures, there will be a tendency to just ignore the whole thing as a bad dream. But alas, that too can land you in trouble, since Proposed Canon IV.3.1(c) says that one of the grounds for discipline is “failing without good cause to cooperate with any investigation or proceeding” for discipline. So merely ignoring the process of discipline is ground for discipline irrespective of whether you did anything wrong in the first instance.

A lay person brought up on charges under this new system will have two choices: either quit and worship at another church down the street, or scrape up lots of money to pay a canon lawyer who understands this complicated process to fight for vindication.

Bluntly put, these proposed disciplinary canons are a disaster. This is church discipline from hell. They are the product of a siege mentality by an institution which seeks to stomp out opposition to the agenda of the higher-ups by removing any laity who stand in their way. The very threat of this process will make all but the most stout-hearted soul acquiesce.

The introduction to these proposed canons claim to help the laity develop “habits which can form all members of the Church in healthy and responsible ministries and which can produce reconciliation and healing when failures occur.” They will not do that. They will be mechanisms of tyranny by bishops and other diocesan leaders against any laity who do not do the bidding of the diocese, be it revisionist or traditionalist.

In the words of the proposed Canon IV.1 the leadership can under these new rules “hold each one accountable” for what they do in the church. And there is no mechanism to stop a bishop who controls his diocesan judicial process from “disciplining” any lay person who opposes the bishop or the diocese on any matter.

Traditionalist laity on a vestry in a revisionist diocese can be removed, or for that matter, revisionist laity of a parish vestry in a traditionalist diocese can be booted. Only canon lawyers will benefit from these new rules. They will be an expensive mess for anyone else caught up in this process. In a church which calls itself “Christian” these proposed disciplinary canons should be “dead on arrival” at the General Convention.

The supreme irony of all this is that today’s Episcopal Church has shown itself so dysfunctional that it cannot even discipline someone wearing a miter since the days of Bishop Pike in the 1960s and Bishop Righter in the 1980s. So now we will take a crack a cleaning up the laity?

What will the deputies to the General Convention do with this draft of the Proposed Canons. Maybe with all the discussion of the Windsor Report and the confirmation of gay bishops, nobody will notice as it is quietly passed into church law. But if they are smart and alert in Ohio in June they will politely hand them back to Bp. Catherine Waynick and her “professional communicators” and say, “thank you, but try again three years from now.”

Then if cooler heads prevail, church discipline against this canon lawyer for publishing an essay which offended the bishop’s canon visionary will have to wait another day at least three years hence.

Raymond Dague is an attorney in Syracuse, New York, a member of St. Andrew’s in the Valley in Syracuse, and assistant chancellor to the bishop of the Diocese of Albany.

TOPICS: Mainline Protestant
[Hat tip to titusonenine. --sionnsar]
1 posted on 05/02/2006 5:33:52 PM PDT by sionnsar
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To: ahadams2; meandog; gogeo; Lord Washbourne; Calabash; axegrinder; AnalogReigns; Uriah_lost; ...
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2 posted on 05/02/2006 5:35:43 PM PDT by sionnsar (†† | Iran Azadi 2006 | SONY: 5yst3m 0wn3d - it's N0t Y0urs)
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To: Kolokotronis


3 posted on 05/02/2006 5:36:56 PM PDT by sionnsar (†† | Iran Azadi 2006 | SONY: 5yst3m 0wn3d - it's N0t Y0urs)
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