Legal wrangling, spin and misunderstandings

This week the House of Bishops meets in Salt Lake City. In addition to reflecting on Lambeth, the Bishops will discuss whether or not Bishop Bob Duncan has abandoned the Episcopal Church and, if so, what to do about it.

Letters from Duncan and Presiding Bishop Katharine Jefferts Schori may be found here and here. See the previous Lead entry here.

George Conger writes in his blog Religious Intelligence:

Presiding Bishop Katharine Jefferts Schori may face legal hurdles in her bid to depose Pittsburgh Bishop Robert Duncan (pictured) this week, as her decision to change the agenda of the special session of the House of Bishops five days before its start appears to violate canon law.


Giving five days notice that the lawfully elected bishop of a diocese would stand trial for what he might do, rather than what he had done, was “unfair” to both the diocese and to Bishop Duncan, diocesan communications officer Peter Frank said.

Whether the vote will take place is unclear, however, as the canons specifically forbid the Presiding Bishop from amending the agenda once she issued her March 25 and Aug 20 call for a special session to review the Lambeth Conference.

Fr. Tobias Haller responds to Conger’s article:

What a strange mixture of strained readings and false statements.

This is not a trial, nor even a hearing. It is a proceeding to determine if the certification of the Review Committee is to be sustained in light of Bishop Duncan’s response to same. Bishop Duncan did receive timely notice of the January certification of the Review Committee, and issued his response in March. His shock that he’s only received five days notice (for a meeting he says he plans not to attend anyway) sounds as believable as that of Captain Renault on finding gambling at Rick’s.

His written response, taken in conjunction with his much more important statements and actions towards “realignment” have made it very clear that he does not deny there is — in his mind — a two-church situation at play, and that he is making his choice not to be in communion with The Episcopal Church (the one with General Convention), regardless of any actions taken by his diocese — which he has urged to follow the course of realignment. I have long maintained that this urging in itself is actionable — it is a form of incitement or conspiracy — and that the action of the diocese is not determinative of the guilt of the bishop.

For Duncan has urged “realignment” publicly and unapologetically. He no longer wishes to be part of The Episcopal Church whose House of Bishops will soon be meeting, though he recognizes it has the authority to discipline him. He has played the word game that he and those who believe what he believes represent the “real” Episcopal Church — on his tendentious reading of the Preamble to the Constitution of TEC (though his hopes that TEC would lose its status of being in communion with Canterbury fell flat; he has rather painted himself into a corner in this regard.) Duncan had a chance to back down from his course of throwing in his lot with Common Cause against and opposed to the “course” of The Episcopal Church, and he refused to take it. He is for realignment — which in this case is just another word for abandonment of communion with one Church in order to join another, in this case assembled from the fragments of several dozen churchlets also not in communion with The Episcopal Church. To suggest this is not schismatic involves a distorted view of the nature of schism.

Back to the Intelligence article: There is no need for this consideration to be “on the agenda” of the House of Bishops’ meeting, as the Canons say the PB is to place the matter before the next regular or special meeting of the House after the two-month period for response or retraction. (The red herring of the sessions at Lambeth is typical obfuscation — those were not meetings of the House of Bishops, but provincial gatherings of those bishops who happened to be present at Lambeth.)

Duncan’s choice to stay away from what his coterie characterize as a “trial” would simply be contumacy if it really were a trial. If he wants to assure the House of his bona fide he should show up and recant his program of realignment. In this case it is Duncan who is “steeped in so far” that turning back is difficult. But it is still a lively option.

Further, citing Robert’s Rules is in vain as the Canons and the Rules of Order of the HB cover this situation without any need to appeal to the stopgap of Robert’s. (RRoO is only called upon to address matters not dealt with.)

Moreover it takes a two-thirds majority (not a simple majority as the article states) to overrule the chair’s decision on a point of order on appeal, according to rule XV of the House of Bishops.

For those who want to judge for themselves if Duncan’s response to the certification of abandonment was adequate, I copy it out below. This was posted originally in mid-March. While he acknowledges himself to be “subject” to the discipline of this Church, he in no way indicates any sympathy with it, but rather his opposition to it. Which would be fine if he stopped short of realignment — about which his “response” says nothing. His actions speak much louder than his words in this regard. If this was intended as a good faith retraction, it fails miserably.

Read George Conger’s article here and Fr. Haller’s blog entry here.

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