Skip to comments.The Coming Church War in Ecclesiastical Courts
Posted on 07/28/2005 6:52:19 PM PDT by sionnsar
ECUSA is proposing a new set of disciplinary canons.
Realize that this revision has a subtle agenda that will affect us as conservatives in the church. Laity being under the canons is a new thing. Also, it appears you can be disciplined for seeking review of the Constitution and Canons in the civil courts. A Bennison could defrock a Moyer again for seeking review in the civil courts, and the initial error by the bishop becomes a red herring. Additionally, the courts have already been clear that the courts won't get involved where a minister or member has resorted to civil courts and is kicked out for doing so. The Disciplinary Canon "revisionists" definitely had a few things (or people) in mind when they set to work on this travesty.
Chess pieces are being moved on the periphery of the board, and we had better be watching. Be sure to let conservative deputations to general convention and bishops know what is going on.
I had a few choice things to say about it on the HOBD listserv:
As a church attorney, I can say I think this revision is 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 didn't adequately address the things before it.
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. Additionally, I agree with the posts talking about more definiteness as to when a sexual relationship can be had between ministers and those in their congregation (since we've now swept lay people into the mix). It would be very easy to run afoul of these canons and be judged in an extremely subjective manner.
While some of you may recoil at the idea of having standards similar to those for lawyers, I can say that at least the lawyer disciplinary standards are quite clear, and you can only be disciplined on clear and convincing evidence, which I would find to be a much better situation than our current canons. People lie and attempt do vengeful things within professional discipline against lawyers, and so too with priests.
I think the convenant idea is a step in the right direction - sort of a pre-trial diversion procedure. Forgiveness - that is certainly a concept that ought to be in our disciplinary canons.
I think calling the Ecclesiastical Court a mere fitness board 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. I also dislike the hearing panel arrangement without any 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. Bad idea. If someone draws the wrong panel, they lose, the right one, they win, without the chance for the entire body of the court to make a decision. Also, it is utter crap to have the "President" or Chief Judge of the court to pick the members of the hearing panel, the review panel, or any other "panel" subset of the court. To be fair to all parties concerned, it has to be done by lot.
The General Provisions by themselves justify a no vote to the revision from all of us as bishops and deputies (although I realize we are at the discussion stage at this point). No resort to the civil courts for anything having to do with the Constitution and Canons of the Church, or any proceedings in this title. What if we run amuck, and violate our own Constitutions and Canons? Churches haven't 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.
So, if a respondent seeks redress in civil courts, we can discipline him for that as well? How about his attorney, if a communicant? I don't think so. Also, I want everyone (since laity are now subject to these canons) on this list to know that if you hire me to represent one of you in a case outside my Diocese, I won't hesitate to petition the civil courts for redress if necessary, and I'm willing to risk excommunication to do it, and I would advise you not to hire any attorney who wouldn't do the same.
Also, the revision states that, in proceedings at the provincial level, the fees and expenses of the church attorney is a charge upon the Diocese from which the proceedings originated. This indicates that the original church attorney handling the case won't be handling the case on appeal. That is a tremendous waste of resources, but I'll definitely let my bishop know I want to jump on the gravy train and be the church attorney for the province, and not just the Diocese.
There is a great deal to be discussed on this proposed revision. While I'm sure a lot of thought and work has gone into this revision, it needs a WHOLE lot of work. But, I also sense that this revision is part of a hunkering down for the future for the war that may be coming in our church (particularly the General Provisions section about review and interpretation of our Constitution and Canons in the civil courts), and I think that is very sad.
Brad Drell is Lay 1, Western Louisiana and is a Church Attorney before the Ecclesiastical Court, Diocese of Western Louisiana.
Wow, looks like the heretics are pulling out all the stops.
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