“Our Constitutional Heritage: Why Polity and Canon Law Matter” by the Rt. Rev. Stacy F. Sauls, Bishop of Lexington, was presented at the Chicago Consultation at Seabury-Western Seminary, December 5, 2007. To read the footnotes of this paper, go to the end of the article and click on Read More
By Stacy F. Sauls
I am pleased beyond measure that this conference has elected to include a consideration of polity along with that most dreaded fifth horseman of the Apocalypse, canon law. Neither is really as mysterious, and certainly not as malevolent, as some would suggest. Neither is arcane nor, despite the fact that they are legal, legalistic. Both are simply applied ecclesiology, which means they are entirely theological in nature. Both are disciplines that may well help us think through our current challenges. Both are relationally and spiritually healthy, as they express the agreed-upon boundaries of our community life. Both are important to our life together because the alternative to the rule of law on this side of the kingdom of heaven is not grace, but the rule of men (and I use the gender-exclusive term quite intentionally), men who equate their prejudices with God’s word, their ambitions with God’s will, and their agendas with the tradition of God’s Church. Polity and canon law are the security of God’s people against the wrongful exercise of power.
With that conviction, I will turn some attention in this paper to our constitutional nature. I will deal more with the “big picture” and less with the written laws, which vary to some extent from Province to Province of the Anglican Communion, because who we are as a constitutional reality is something larger than a legal document. Some attention will be paid to the peculiar, and perhaps unique, constitutional reality of The Episcopal Church (TEC). Finally, I will turn some attention to a few of the constitutional challenges we face in the time leading up to Lambeth 2008 and General Convention 2009.
The constitutional nature of the Church of England, to which all Anglican churches are linked, is traceable to a series of English statutes we know collectively as the Elizabethan Settlement. The constitutional identity of Anglicanism is not in the violent course of the English Reformation itself but in the Elizabethan Settlement that brought that violence to an end by charting a middle way. That Settlement has three key aspects: (1) the principle of autonomy, (2) the principle of toleration, and (3) the principle of lay participation in the governance of the Church.
The Principle of Autonomy
The English Church’s separation from the jurisdiction of the See of Rome was accomplished over time by a series of statutes passed during the reign of Henry VIII. These included most significantly the 1532 Appeals Act, the 1533 Submission of the Clergy Act, and the 1533 Appointment of Bishops Act. The Henrican legislation culminated in the 1534 Supremacy Act, which declared the King the Supreme Head of the English Church. The result was to vest the King with the same power to govern the Church previously vested in the Pope and therefore resting outside the emerging modern English state.(1) The idea of supremacy in Anglicanism has less to do with the inherent rights of royalty than with the inherent importance of nationality.
Henry’s Supremacy Act was repealed at the ascension of Mary but restored under Elizabeth in 1558, although with some modifications of a mostly non-substantive compromise nature. It nevertheless left Elizabeth with all the spiritual and ecclesiastical power that had been previously exercised by her father,(2) and it remains part of English law today.(3)
In a broader context, the supremacy has found expression in Anglican canon law, not so much vesting authority in a hereditary monarch, even a constitutional one, as vesting authority for the government of national churches in national communities. It is a principle we have come to recognize as local autonomy, and it has been considered fundamental to the identity of Anglicanism.(4)
According to Anglican canonist Norman Doe, the principle of local autonomy has been repeatedly affirmed as relating to the very “nature of the Anglican Communion and the nature and location of authority within it.”(5) Thus, the Anglican Communion has traditionally understood its member churches to enjoy full autonomy as to governing themselves within their own canonical systems.(6) That autonomy is recognized (so far) by all the individual institutions of the whole Communion, and (so far) there is no body within the Anglican Communion with the competence to create law for the Communion as a whole,(7) however interdependent we may all be relationally and missionally.
The Principle of Toleration
It is perhaps odd to use the words uniformity and toleration in a way that relates them. Nevertheless, such is the cumulative effect of the 1558 Act of Uniformity together with the publication of the 1559 Book of Common Prayer. It is this tension that yields the Anglican approach to living in communion sacramentally rather than doctrinally.
The compromises of the 1559 Prayer Book, which modified some of the most extreme protestant provisions of its immediate predecessor, are instructive. The words of administration are most revealing. The first Prayer Book in 1549 expressed its catholic theology of the presence of Christ in the consecrated elements of bread and wine (“The body of our Lord Jesus Christ, which was given for thee” and “The blood of our Lord Jesus Christ, which was shed for thee”).(8) The second Prayer Book in 1552 expressed a quite different Zwinglian theology of the Eucharist (“Take and eat this in remembrance that Christ died for thee” and “Drink this in remembrance that Christ’s blood was shed for thee”).(9) The Elizabethan Prayer Book in 1559 combined the two, doctrinal inconsistency notwithstanding.
The standardization of worship with a toleration of theological diversity has been constitutionally characteristic of Anglicanism ever since. It finds expression, for example, in the recently revised Prayer Books of TEC,(10) New Zealand,(11) and Australia.(12)
The Principle of Lay Participation in Governance
Unlike the principles of autonomy and toleration, which are rooted in particular Acts of Parliament, the principle of the participation of the laity derives from the cumulative effect of several statutes. The Act of Supremacy itself points in this direction, making as it does, the Supreme Governor of the Church a lay office in the person of the monarch. The principle found elaboration and strengthening in other ways in the course and conclusion of the English Reformation. The House of Governors, which exercised authority in cooperation with the monarch, was composed entirely of laypeople. A royal commission composed of 32 persons, half of whom were lay, reviewed church legislation. Church courts were replaced for some purposes by civil courts. The laity thus assumed a very powerful role in the life and governance of the Church of England from the beginning.
The role of the laity remains a fundamental characteristic of Anglicanism. Indeed, there have been successive calls in the instruments of the Anglican Communion for enhancing the role of the laity in the life of the Church,(13) and at all levels of the Church’s life.(14)
The TEC Experience
The experience of TEC deserves some special attention in a consideration of polity. First, TEC is one of the two major venues of controversy in the consideration of the full inclusion of gay and lesbian persons along with the Anglican Church of Canada. Second, it is only with the formation of TEC, that there existed for the first time a Church sharing a common heritage with the Church of England choosing to be related in a cooperative way while still maintaining its independence. The formation of TEC is thus constitutionally important to the existence of the Anglican Communion. Third, to my knowledge, TEC is the only Church in the Anglican Communion that took shape in its formation entirely without the involvement of bishops.
There are consequences of these realities. For one thing, in the emergence of TEC from the crucible of post-revolutionary America, the Anglican constitutional principle of lay participation was amplified by the American revolutionary principle of democratization. For another, in TEC’s origin, securing the historic succession in the former colonies was secondary in importance to uniting the isolated and scattered congregations formerly a part of the Church of England.
The agenda for a unified national church in America, with or without bishops, was set by the Rev. William White, the rector of Christ Church in Philadelphia, the former chaplain to the revolutionary Continental Congress, and the future first Bishop of Pennsylvania, in a pamphlet called “The Case of the Episcopal Churches in the United States Considered,”(15) which was published in 1782, a year before the Treaty of Paris formally ended the Revolution. The “Case” is in part a product of its author’s revolutionary principles inspired by John Locke’s contract theory of government.(16) White began with the premise that the Revolution had broken the former ties that bound the colonial churches through the Bishop of London so that “their future continuance can be provided for only by voluntary associations for union and good government.” (17)
The division of power in the Constitution of TEC is not a matter of independent and sovereign entities delegating powers to a central authority, which may in turn be removed from the central authority, which would be a confederal system, like that of the Articles of Confederation. Nor is it a matter of a division of power between a central government and associated governments, which would be a federal system like that found in the United States Constitution. All power and authority, though it may have once resided, if only briefly and accidentally, at the most local level, was voluntarily ceded to a national governmental structure through the 1789 Constitution. The polity of TEC, like most if not all other Anglican Provinces, is a unitary form of government in which the national government holds legal supremacy over other subordinate levels of government.
The sole expression of the national government in TEC is the General Convention. In this regard the Constitution of TEC resembles the Constitution of England, which vests supreme authority in Parliament. As a unitary system, TEC has chosen to distribute governmental powers to subordinate levels of government as a matter of canon. It remains, however, constitutionally unitary with all of its powers residing originally in the General Convention and subject to recall by it.(18)
For example, the exercise of episcopacy was one area in which the central authority initially delegated power to the states. Each state was to choose its own bishop according to its own rules.(19) Some dioceses even limited their bishops to a seat in their state conventions without the right to preside, and some allowed a bishop to be tried for offenses without the presence of another bishop.(20) The General Convention has reclaimed a great deal of this authority over the years, as is its right.
The Constitutional Challenges We Face
We now face something of a constitutional crisis, both in TEC and in the Anglican Communion, just as Bishop Robert Duncan promised his colleagues he intended to create at the 2002 fall meeting of the House of Bishops in Cleveland. Happily, the antidote is not complicated. It is simply to follow our own rules and be true to our own constitutional principles.
The Anglican Covenant
Last year the present Archbishop of Canterbury expressed his concern that the Anglican Communion might, in its current tensions, degenerate into no more than a federation.(21) I was immediately alarmed, as a federation is already a great deal more than I think we are now. According to political scientist James Allen Dator, whose unpublished doctoral dissertation is the most comprehensive analysis of the governmental structure of TEC, a federation is a governmental system manifesting a division of powers between a central government and two or more regional, constituent, or associated governments.(22) To be more than a federation, which the Archbishop seems to desire, is to be a unitary form of government, i.e., having a structure in which all power to govern rests in a central organ. Perhaps what the Archbishop meant when he said federation is confederation. A confederation, according to Dator, is
an association of governments which have agreed to delegate to a common governmental authority the exercise of certain of their governmental powers. The association . . . is characterized by the retention in the associated governments of the right to nullify acts of the common governmental agency, and to secede from the association at will.(23)
In the Anglican Communion, however, no one has much delegated anything to anyone. Confederation does not describe us very well either.
There are proposals, of course, to make us either a federation or a confederation, or God forbid, a unitary governmental structure such as the Roman Catholic Church has. The draft Anglican Covenant is a serious concern in this regard, particularly because it abrogates the constitutional principles that make us Anglicans. It abrogates the principle of lay participation in the governance of the Church by placing disproportionate emphasis on the views of the highest ranking bishops. It abrogates the principle of toleration by imposing a standard, and more frighteningly a mechanism, for judging orthodoxy other than the idea of common worship. Most dangerously of all, it appears merely to compromise the principle of autonomy when, if fact, it virtually destroys it by vesting the right to determine what is a matter of common concern, what the common mind of the Communion is, and what punishment is appropriate for violations of the common mind in the Primates Meeting. It is as if the English Reformation, to say nothing either of the Elizabethan Settlement or the constitutional development over time of independent churches voluntarily cooperating on the basis of a shared heritage, never happened.
I do not believe it is impossible to create an Anglican covenant that is constitutionally consistent with existing Anglican polity. The Inter-Anglican Commission on Mission and Evangelism has proposed one.(24) I do believe the current draft being considered, rather than being an expression of our constitutional identity, would be a complete replacement of it with something far less significant as an experiment in being the Church than is the Elizabethan Settlement.
In truth, the Anglican Communion does not exist with a governmental structure at all. It is, rather, a voluntary association of autonomous churches bound together by a shared heritage from the Church of England and enjoying cooperative relationships for the purpose of mission, nothing more. It is not at all unlike the autocephalous Eastern Orthodox churches in that regard, and they somehow manage to function reasonably well without a central government.
The term Anglican Communion arose, after all, not from an international constitutional convention but from the usage of Horatio Southgate, the American missionary bishop to Turkey in 1847.(25) Strictly speaking, there is no such thing as the Anglican Communion at all in an institutional sense. There are, instead, ways in which Anglican Christians affirm their heritage and further their missional ends by mutual respect for the office of the Archbishop of Canterbury and participation in the Lambeth Conference, the Anglican Consultative Council, and the Primates Meeting, as well as, probably more importantly, countless informal relationships that bring them together across racial, cultural, and geographic barriers for a common purpose in the service of the Gospel of Christ. What the Anglican Communion already is, I would suggest, is quite enough.
The primary manifestation of our constitutional crisis at the moment within TEC is probably the disputes we are facing regarding church property. The principle of the national church’s trust interest in diocesan and congregational property does not depend on the so-called Dennis Canon. It was, indeed, already the law of TEC prior to the enactment of the Dennis Canon, and it derives from the unitary nature of our church structure. It has always been the law of TEC, and to my knowledge, it is the generally prevailing law of any church that traces its legal heritage to the Church of England. What the Dennis Canon did was to restate existing canon law in a way that it would be recognized by the secular law as being protected by the First Amendment as set out by the Supreme Court in Jones v. Wolfe.(26) It will, for the most part, be controlling in the property disputes before us.
There are many pleas coming from secessionist congregations and dioceses to end the recourse to secular law, a plea that has been adopted recently by the Joint Standing Committee.(27) Since the secessionist case is so weak in secular as well as canon law, the plea, while understandable, is also hollow. The most appropriate, and absolutely effective, way to end all property litigation immediately is for the secessionists and uninvited bishops to stop trying to steal the property.
Shared Fiduciary Responsibilities
The obligation to protect property rights flow from fiduciary responsibilities, but carrying out those responsibilities reveals a polity and governance issue within TEC. A fiduciary duty exists in secular law for an organization’s leadership to guard its property for the good of the whole. It is a duty imposed additionally by vow in the case of the ordained and by canon in the case of others.(28) In TEC, that fiduciary duty rests in particular on the Presiding Bishop as the organization’s chief executive officer, but not solely on the Presiding Bishop. It rests equally on the Executive Council, which is by canon the Church’s board of directors,(29) and as such, has exactly the same fiduciary responsibility as the Presiding Bishop. In other words, the Executive Council cannot discharge the duty it owes the people of the Church by relying on the Presiding Bishop to exercise her judgment just as the Presiding Bishop cannot discharge her duty to the people of the Church by relying on the Executive Council to exercise its judgment. At law, canon and civil, each must exercise judgment, not one or the other.
If you think about it, it makes perfect sense. To carry out its fiduciary responsibility, the Executive Council must balance protecting property rights against a set of other considerations, including its canonical responsibility to carry out the programs of General Convention and the cost of protecting those property rights. The Presiding Bishop must balance protecting property rights against a different set of considerations, including the pastoral discipline of bishops and our relations with others in the Anglican Communion. It is quite possible, and should be, that the Presiding Bishop and the Executive Council could balance their respective portfolios of interests and reach different conclusions as to the protection of property interests. There is no reason that any difference could not be resolved collaboratively and canonically. In the case of conflict otherwise irresolvable, a vote of the Executive Council, of which the Presiding Bishop is ex officio the Chair and President, would prevail.(30)
The only problem is that those who equally share a fiduciary duty do not equally share an ability to discharge their duties independently, as they must for our polity to work as intended. The job of the Presiding Bishop’s Chancellor is appropriately to advise the Presiding Bishop on what the law is and then, within the law, to advocate his or her position—advise and advocate on behalf of the Presiding Bishop. The Chancellor owes no duty to advise and advocate on behalf of the Executive Council, the General Convention, or the Domestic and Foreign Missionary Society. The Presiding Bishop’s Chancellor cannot ethically both advocate the position of his one and only client, the Presiding Bishop, and advise the Executive Council at the same time because the Presiding Bishop and the Executive Council do not have, and should not have, precisely the same set of interests to consider in exercising their respective legal duties. The problem is exacerbated by the fact that the Chancellor to the Presiding Bishop, as the only canonically authorized lawyer at the national level, is de facto seen as the general counsel to the Church as a whole including the Executive Council, even though David Beers, the current Chancellor, frequently reminds various persons that this is not his role.
The expanded role of the Presiding Bishop’s Chancellor has developed understandably, but not canonically. The canons were amended in 1976 to provide that the Presiding Bishop shall have the right to appoint a Chancellor.(31) The intention, however, was more modest than the current reality. “The chancellor appointed under this section deals with the needs of the Presiding Bishop only, not with those of the whole Church or in connection with secular legal matters with which the Presiding Bishop and Executive Council are involved in the course of their work.”(32) Some structural reform to check this unintended development may be necessary in the interest of underlying polity, the need for which is heightened and more apparent in times of controversy.
Another issue that threatens to seduce us into being untrue to the identity we have claimed for ourselves in our constitutional principles is the persistent call to submit TEC to some sort of foreign oversight, jurisdiction, or consultation, not as to matters of interdependence, but as to matters of autonomy. The Windsor Report, the Panel of Reference, and the Anglican Covenant in its current draft are examples. Most recently, the Primates have purported to impose on TEC something called a Pastoral Council to oversee intra-church relations within TEC. The idea was unequivocally rejected by the House of Bishops meeting at Camp Allen in March of this year.(33) The rejection was affirmed by the Executive Council meeting in Parsippany, New Jersey in June of this year.(34) To the horror of at least some, it resurfaced at the House of Bishops meeting in New Orleans in September.
Several in the House argued strongly against such a proposal both because it was not true to our own constitutional identity and because it held the danger of weakening the Church’s position in pending property litigation. I am only one observer, but my read is that any such language had very little support. After a great deal of effort to remove more pernicious versions of the language, the final statement of the House contained this language:
[W]e recognize a useful role for communion-wide consultation with respect to the pastoral needs of those seeking alternative oversight, as well as the pastoral needs of gay and lesbian persons in this and other provinces. We encourage our Presiding Bishop to continue to explore such consultation in a manner that is in accord with our Constitution and Canons.(35)
I find myself deeply concerned about that statement, although relieved that it is not as bad as it might have been. Its saving grace may be 1) that the word consultation, if we have the will, can be a sufficient limitation on the intent to cede anything resembling jurisdiction, and 2) the explicit requirement that any such consultation be consistent with our own Constitution and Canons. Anything else would be a very dangerous abrogation of our constitutional identity. In my opinion, every other Anglican Province should have the same grave concerns about even participating in such an unprecedented consultation out of concern for its own Anglican constitutional integrity in theory and out of concern that it could be next in practice.
Authorizing the Blessings of Same Sex Relationships
Finally, and at the considerable risk of saying something that may be decidedly unpopular in this gathering, let me say a word about the legality of liturgies for blessing same-sex relationships at the current time. First let me say that I believe General Convention, as the legitimate voice of the whole Church, should begin a process to move toward authorizing such liturgies sooner rather than later. In the meantime, though, I think it is incumbent upon the rest of us, particularly bishops—individually and collectively, as something less than the General Convention, to wait on General Convention to act because it is crucial to maintaining our polity that we do.
The only provision possibly authorizing a bishop to provide such liturgies is found in a rubric on page 13 of the Prayer Book: “For special days of fasting or thanksgiving, appointed by civil or church authority, and for other special occasions for which no service or prayer has been provided in this Book, the bishop may set forth such forms as are fitting to the occasion.”(36) The question is whether that rubric gives bishops the required authority.
The most common and straightforward meaning of the word special in the a rubric, however, which has explicit legal ramifications, would suggest an objective understanding of the term, along the lines of exceptional, rare, unusual.(37) The fact that the Church has not left it to the device of bishops acting alone to create appropriate liturgies for marriage, which serve an analogous pastoral purpose and are similar in terms of whether or not they should be considered “special,” suggests that liturgies to bless same-sex relationships do not fall within the grant of authority of the episcopal authorization rubric in any good faith reading of the same.
As tempting as it may be, bishops should be extremely reticent about authorizing liturgies they have not been granted the authority to promulgate by General Convention as a matter of constitutional self-respect. Nor should they relieve General Convention of the pressure to do the right thing for the full inclusion and pastoral care of gay and lesbian persons by providing a surreptitious way to circumvent Convention’s legitimate authority. For now, though, a bishop’s use of his or her power to set forth a liturgy for blessing same-sex unions is, in my judgment, an abuse of power within the understanding of TEC’s polity. As supportive as I am of the conviction that such liturgies are something God’s people need and that God wants done, I am also aware that “what God wants done,” untempered by the rule of the community’s law and its principles, becomes the justification for rule by individuals without any principles at all.
Either we have constitutional principles or we do not. Either we are accountable or we are not. Either the rules apply to everyone or they apply to no one. I hope we will choose to be governed by our rules and by Anglican principles. It might be possible to make an inclusive Church sooner perhaps if we do not, but it will be a Church with an identity different from the Anglican and constitutionally-governed Church we now so value. In the long run, our constitutional principles will serve us all, the goal of inclusion, and the Gospel of justice admirably. Our identity as a constitutionally-governed Church based as the principles of autonomy, toleration, and lay participation is well worth preserving, and it is well worth including others in.
Stacy F. Sauls, a laywer and doctoral student in canon law, is Bishop of the Diocese of Lexington.
Halsbury’s Laws of England vol. 14 (4th edn Butterworth’s, London 1975) para. 169.
2 W. K. Jordan, The Development of Religious Toleration in England (Peter Smith, Gloucester, Mass. 1965) vol. 1, 84.
3 Halsbury’s vol. 14 (n 1) para. 165.
4 Norman Doe, Canon Law in the Anglican Communion (University Press, Oxford 1998) 338.
5 Doe (n 4) 342.
6 Doe (n 4) 339.
7 Doe (n 4) 347.
8 Marion Hatchett, Commentary on the American Prayer Book (Seabury Press, New York 1980) 386.
9 Hatchett (n 15) 386.
11 New Zealand Prayer Book (Williams Collins Publishers, Auckland 1989) 427.
12 Prayer Book for Australia (Broughton Books, Alexandria 1995) 113.
13 Doe (n 4) 159.
14 Doe (n 4) 173.
15 William White, “The Case of the Episcopal Churches in the United States Considered” in Don S. Armentrout and Robert Boak Slocum, eds., Documents of Witness: A History of the Episcopal Church (Church Hymnal Corporation, New York 1994) 2-14.
16 H. G. G. Herklots, The Church of England and the American Episcopal Church (A. R. Mowbray & Co., London 1966) 90-91.
17 Frederick V. Mills, Sr., Bishops by Ballot (Oxford University Press, New York 1978) 185.
18 David L. Holmes, A Brief History of thee Episcopal Church (Trinity Press International, Valley Forge 1993) 51.
19 Raymond W. Albright, A History of the Protestant Episcopal Church (Trinity Press International, Valley Forge 1993) 131.
20 Albright (n 19) 142.
21 Anglican Communion News Service, “Archbishop of Canterbury: address to General Synod on the Anglican Communion (July 7, 2006), www.anglicancommunion.org/acns/news.cfm/2006/7/7/acns4164.
22 James Allen Dator, The Government of the Protestant Episcopal Church in the Untied States of America: Confederal, Federal, or Unitary, http://www.edow.org/dator.
23 Dator (n 22).
24 Living Communion: The Official Report of the 13th Meeting of the Anglican Consultative Council (Church Publishing, New York 2006) 191ff.
25 J. Robert Wright, “The Anglican Communion and the Facts of History, The Anglican 35 and 36 (January 2007) 4.
26 433 U.S. 595 (1979).
27 Joint Standing Committee of the Anglican Consultative Council and the Primates, The Report of the Joint Standing Committee to the Archbishop of Canterbury on the Response of The Episcopal Church to the Questions of the Primates articulated at their meeting in Dar es Salaam and related Pastoral Concerns (23 October 2007).
28 Constitution and Canons: The Episcopal Church (2006) (Church Publishing, New York n.d.) Canon I.17. 8.
29 Constitution and Canons (n 28) Canon I.3.
30 Constitution and Canons (n28) Canon I.4.3(a).
31 Edwin Augustine White and Jackson A. Dykman, Annotated Constitution and Canons vol. I (1981 edn) (Morehouse-Barlow Co., New York 1997) 203.
32 White and Dykman (n 31) 207.
33 House of Bishops, “A Communication to The Episcopal Church from the March 2007 Meeting of the House of Bishops” (Episcopal News Service, 20 March 2007), http://www.episcopalchurch.org/78650_84230_ENG.HTM.htm.
34 Mary Frances Schjonberg, “Executive council declines to participate in Primates’ ‘pastoral scheme,’ says only Convention makes policy” (Episcopal News Service, 14 June 2007), http://www.episcopalchurch.org/78650_ENG)HTM.htm.
35 House of Bishops of The Episcopal Church, “House of Bishops response ‘to questions and concerns raised by our Anglican Communion partners’” (Episcopal News Service, 25 September 2007), http://www.episcopalchurch.org/78650_90457_ENG.HTM.htm.
36 Book of Common Prayer. According to the use of The Episcopal Church (1979 edn) 13.
37 Oxford English Dictionary, http://dictionary.oed.com/cgi/entry/50232614?query_type=word&queryword=special&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=jAUc-CCtvqs-12048&hilite=50232614.