A Response To The “Lawyer Bishops” Paper To the House of Bishops

At the outset, it is apparent to me that this work is largely, if not completely, that of Bishop Joe Morris Doss, as it essentially builds upon his earlier writing on the theory of some kind of common law Anglican Constitution which somehow mimics International Constitutional Law. I have to say at the outset of this piece that I have great respect and admiration for Bishop Doss. As fellow Louisianian, he has a hearty laugh and is someone you can share a drink or a meal with and it is most pleasurable. As someone whose ministry is working with people in prison and their families, I appreciate the fact that his work for the poor has followed the best of the traditions of the Christian Church as it has endeavored to follow Matthew 25. He is also a fellow graduate of one of the best law schools in the country, the Louisiana State University Law Center, and I am sure I suffered under the same legal tutelage of certain professors as he did, as they tended to stay around for a while. Moreover, Bishop Doss has a local connection here in Alexandria; his best friend lives across the street from my parents and he visits Alexandria often. Prior to the controversies of the day, Doss has preached and celebrated at my parish. Now, he merely attends when he is in town. I regret that the controversies of the day have led to him not being asked to bless our congregation at the end of services. Our divisions are regrettable.

However, the circumstances confronting the Episcopal Church and the Anglican Communion require that his paper to the House of Bishops be addressed – fisked, if you will – as I believe it presents an unrealistic picture of the current state of affairs. If this view is adopted by our House of Bishops, I fear it could prove disastrous for the Anglican Communion and the Episcopal Church.

In reality, the Anglican constitution is a fantasy of Bishop Doss, as the paper ignores how the Anglican Communion came into being, including the concessions that the American Church had to make first to the Episcopal Church of Scotland and then to the Church of England in order to receive Episcopal orders from those churches. These concessions both included doctrine in the form of creedal language and changes in the prayer book. It also ignores the Colenso controversy which sparked the first Lambeth Conference and the first Anglican border crossing – the creation of the Diocese of Mauritzberg which was coterminous with the Diocese of Natal. I don’t think any paper can effectively address the structure of the Anglican Communion without addressing these two issues – the admission of the Episcopal Church to communion with the churches in Britain and the Colenso controversy. To ignore these issues is like talking about weather while not discussing cloud formations, or maybe a discussion of shoes without addressing the issue of feet. If anything constitutes a common law of the Anglican Communion, it is these two issues and how they were handled.

The paper, in addition to ignoring the foregoing issues, lacks concreteness by previous examples (perhaps precedent from a common law legal point of view) in its assertions of what this Anglican constitution really is, other than citation to Hooker for his three strands and how the Church of England dealt with competing theologies and practices before the Anglican Communion was ever established. During these times, a hierarchical structure governed in the Church of England (and, arguably, still does) which enables someone to impose a solution on various disputes. The Queen enforced a prayer book. I note that Doss does not suggest that the Queen do so again, but comprehensiveness does not exist in a vacuum – someone has to provide to glue to hold the comprehensive church together. Doss, while arguing for keeping the structure (or lack thereof) that we have in the Anglican Communion, supplies no glue for holding things together.

The paper also assumes, without proof, that same-sex sexuality and the doctrinal innovations of the Episcopal Church are good and true, essentially foreclosing any further discussion of them. It lays the blame for the current controversies squarely at the feet of traditionalists and ignores the fact that the innovations of the Episcopal Church, while perhaps not challenging the mythical Anglican Constitution (if such even exists), are squarely against the Christian thought and teaching of a majority of Christians and certainly Anglicans. While the paper recognizes the fact that the Anglican Communion is built partially on like-mindedness, it then ignores the evaporation of this like-mindedness as a cause for the current controversies.

Of course, its most fatal flaw is that it believes a member province of the Anglican Communion cannot be excluded or barred from participation. Well, if you don’t get invited to Lambeth, if the ACC votes to remove TEC from its Constitution, and the Primates no longer recognize the Presiding Bishop of TEC, then Bishop Doss can pretend all he wants that TEC hasn’t been excluded or barred form participation. Wishing doesn’t make it so.

What is most interesting is that the paper protests the coming Anglican convenant, yet recognizes that “[n]either the Anglican Constitution nor the International Constitution is enforceable, except as it is actualized into formal agreements and accepted law.” Largely, international constitutional law is a liberal theory of natural law that is recognized by the paper to be “emerging” and not truly accepted in the legal community. Additionally, the idea that either an unwritten International or Anglican Constitution could not be enforced yet International or say Anglican “laws” that were contrary to the “Constitution” could not enforced. This assertion essentially defies logic. What is to stop this law that is contrary to an unwritten constitution from being enforced? Nothing.

One other interesting thought in the paper that is on the lips of just about everyone defending the actions of the Episcopal Church, and that is the younger people are going to demand the theological innovations happening now from the Episcopal Church. The problem is that younger people, including my generation, really aren’t coming to this church much. The Episcopal Church is shrinking; denominations that are far more traditional in theology and on issue such as sexuality are far more in demand. More importantly, it has been Baby-Boomers and the generation immediately before them that have been demanding changes regarding women’s ordination and sexuality. Moreover, the idea that the Episcopal Church is becoming more baptismal in its ecclesiology rings hollow when the issues have surrounded who gets to wear a purple shirt or a collar. Clericalism continues to dominate the Episcopal Church and its ministry. Further, clericalism was one of the issues the confronted the retired Bishop of New Jersey and was one of the problems that led to his resignation. I suppose it is of no surprise that he does not see the issue as applicable or problematic to his position, and the paper later claims that alternative Episcopal oversight and border crossing eat away at the Episcopacy as a symbol of unity and cites clericalism as one of our presenting issues standing in the way of Baptismal ecclesiology which, for Doss, centers to a large extent on who gets to be a cleric. However, during the struggles of the early church, border crossings were precisely how doctrinal disagreements were handled and ultimately resolved, which allowed competing theologies to preach their message, and, ultimately, one would win out. I suppose I can’t really fault the good Bishop for arguing for the value of purple shirts, since he has one. However, Baptismal ecclesiology has to center on empowering the laity for ministry including added responsibilities for governance by the laity; otherwise, it is merely a shift in power from one party to another but is otherwise clericalism, just as Nazism and Communism otherwise fit into the Orwellian Oligarchical Collectivism of the novel 1984. People can claim that there are different ideals at play, but as to the people living and working under these systems, there is no difference.

The paper does recognize the un-Christian attitude of western churches to those of the global south, yet does not propose to do anything about it but continuing dialogue. While the paper preaches humility to the West, it doesn’t ask the West to do anything about it. The next part of the paper expresses great dismay at submitting to authority to be given the Primates Meeting in the proposed Covenant but provides no alternatives for mutual accountability among the provinces of the Anglican Communion. Largely, the paper argues for a lack of accountability because it suits allowing TEC to do what it wishes, rather than any inherent overall good.

The paper then makes the argument I’ve seen previously from many other sources that our unique polity in TEC keeps TEC from acceding to the demands of the Primates Communique. It asserts that the rest of the Communion doesn’t understand our polity. I think Bishop Jenkins of Louisiana had it right when he said that the rest of the Communion understands our polity, they just do not buy it.

I find it truly hard to believe that Bishop Doss, a lawyer, hasn’t actually read the organizational documents of the Anglican Consultative Council. The ACC Constitution states that it is the Primates who determines who are member provinces of the Anglican Communion. This, of course, has played out in practice when the ACC has passed resolutions requesting the Primates to add Provinces to the Anglican Communion.  The ACC can only recommend admission to new provinces. Further, as the paper recognizes, membership on the ACC is not the same as membership in the Communion. The Primates can admit a new Province, but another process is followed for adding a province to the ACC’s Constitution so they get a vote in the governance of the charitable trust. It also  needs to be understood that membership on the ACC does not imply equal votes among provinces; some provinces have more representation than others.  Doss mentions none of this in his paper. I suppose mentioning it would undermine his thesis. This is not good lawyering, in that the paper doesn’t address the principal argument against the position taken by Bishop Doss.

Since the ACC’s Constitution and actions recognize that the Primates determine the admission of new provinces to the Anglican Communion, it is at least arguable that the Primates determine who is in AND who is out, contrary to Doss’ assertions that have no documentary basis. The ancient principle that Communion is mediated through bishops also bolsters this proposition (which is recognized by Doss in his appendix where he proceeds to blame those who declare broken communion and ignore the actions that precipitate those declarations). Another is that, in the international community, nation states make individual determinations as to who they will recognize as a fellow nation state and with whom they will conduct diplomatic relations. TEC could easily not be recognized by the other provinces in the Anglican Communion; it already is not by many of the provinces. What these provinces are saying to the wider Communion is to either excommunicate and not recognize TEC or they will no longer be a part of the Anglican Communion and will not recognize churches in communion with TEC. Doss ignores all of this.

The paper is very typical of the Episcopal left in that it takes Hooker’s Three Strands and automatically assumes that any person who uses reason in the Christian life must arrive at the inescapable conclusion that same sex sexuality is good and blessed. The paper, while on the one hand saying that provinces in the Communion have the right not to adopt TEC’s position on sexuality, is effectively calling those that disagree with TEC to be unreasonable, yet pages earlier was pleading for addressing the international community with humility. If this is humility, it is no wonder TEC is in the shape it is.

Doss then claims that equity and the presumption in favor of the exploited should be the overriding principles for interpretation of scripture. However, even jurists that apply these principles in law do not do so in a manner that invalidates the law being interpreted, unless such a law is unconstitutional. If they do so, they are acting as oligarchs, and not jurists.

In the Appendix, Doss outlines the very well understood ideal of Anglicanism – common prayer. However, Doss completely ignores two important facts. Many liberal parishes and Dioceses do not follow the accepted forms of worship (ie., the BCP) and change them at will or even whim. It also ignores the fact that, if common prayer is at the heart of Anglican unity, then the development of differing forms of common prayer for each member province essentially undermines and perhaps eliminates that unity. Doss also recognizes the statement of a 1920 Lambeth conference regarding the restraints of truth and love, but fails to recognize that the “love” has been broken, and that TEC’s interpretation of the Truth is at odds with the wider Communion, to the point where the statement of the Lambeth Conference is obviously implicated.

The paper’s most grievous error is ignoring the recognition by the ACC of the power of the Primates to admit new Provinces to Communion, and the fact that, yes, the Primates do have the power to remove TEC from the fellowship of the Anglican Communion based on that provision, communion being mediated through bishops of particular churches, and by analogy to international relations regarding recognition among nation-states.  Clearly, if common law is to be a basis for an Anglican Constitution, then how relationships have been created and handled within the Anglican Communion need to be the basis for the same, and not Hooker’s three strands and how Elizabeth imposed the prayer book on the Church of England.  Further, it begs logic to suggest that relationships cannot be broken or cannot end. Much like Albert in I Heart Huckabees, TEC may have written the charter for the Anglican Communion (which is unwritten, by the way), but it too, can be removed as Albert was from the Open Spaces Coalition.

Much like Charlie Brown’s philosophy, Doss suggests that we need to think about the problem, not so much to come up with a solution to it that is well thought out, but to give it time to go away. Our Bishops, if they buy into this work and choose to follow it at the upcoming House of Bishops meeting, do so at their peril, ignoring the realities we face and the structures we do have in place, like the Primates Meeting and the text and actions of the ACC, rather than the non-existent Anglican constitution.