Six bishops of the Episcopal Church in the United States, who are also licensed attorneys at law, offer the enclosed statement for discussion at the House of Bishops meeting in New Orleans. They are, in order of their ordinations, Cable Tennis, Robert D. Rowley, Jr., Joe Morris Doss, Dorsey F. Henderson, Jr., Creighton L. Robertson, and Stacy F. Sauls.
Their statement addresses the crisis within the Anglican Communion. It is offered in the spirit of genuine dialogue and out of profound respect for the Communion, each member Province, and each baptized member. It is also offered with prayerful gratitude for Archbishop Rowan Williams and in particular for the ministry he is courageously performing under the most difficult, though potentially promising, of circumstances.
Enclosed is:
(1) the statement itself
(2) a summary of the statement
(3) an appendix that offers two more examples of the methodology employed for analysis of the issues
(4) an audio disk for those who will find it more convenient to listen to the statement as they go about their daily round than to sit down and read it.
The Constitutional Crisis, 2007
A Statement to The House of Bishops, the Archbishop of Canterbury, & Honored Visitors
By Legally Trained Members of the House
Cabell Tennis
Robert D. Rowley, Jr,
Joe Morris Doss
Dorsey F. Henderson, Jr.
Creighton L. Robertson
Stacy F. Sauls
Table of Contents
Conclusion page 2
Summary page 3
Introduction page 3
The Analogy to International Constitutional Law page 15
Caveat: The Anglican Constitution is Not a Body of Law page 18 Two Movements for Change:
Theological Reform v. Constitutional Redefinition page 20
Baptismal Ecclesiology page 22
The Opposition to Theological Development: page 26 Demands and Proposals for Constitutional Change
A Proposed Covenant page 29
Tanzania Communiqué page 31 The Law of Associations:
Action to Remove or Discipline, Ultra Vires page 33 The Appeal to The Anglican Constitution
Articles Under Attack page 37
Modalities of Interpretation in International Constitutional Law page 43
The authority of Scripture, Reason, and Tradition page 44
Objectivism page 45 Original Intent
Application to International Constitutional Law page 46
Application to Anglican Constitution page 46 The Text
Application to International Constitutional Law page 48
Application to Anglican Constitution page 48 The Structural Inferences
Application to International Constitutional Law page 51
Application to Anglican Constitution page 52
Subjectivism page 53 The Precedents
Application to International Constitutional Law page 54
Application to Anglican Constitution page 5 General Ethos and Specific Purpose Underlying a Provision
Application to International Constitutional Law page 56
Application to Anglican Constitution page 59 The Balance of Credible Contrarieties in terms of Costs and Benefits
Application to International Constitution page 61
Application to Anglican Constitution page 62
APPENDIX page 66 Anglican Comprehensiveness
Lex Orandi, Lex Credendi, Via Media page 66
Original Intent page 73
Text page 73
The Structural Inferences page 74
The Precedents page 76
General Ethos and Specific Purpose Underlying a Provision page 77
The Balance of Credible Contrarieties in terms of Costs and Benefits page 80
Episcopal Oversight page 82
General Ethos and Specific Purpose Underlying a Provision page 86
Clericalism page 87
Obsession with sacramental validity page 90
Donatism page 91
The Balance of Credible Contrarieties in terms of Costs and Benefits page 93
Conclusion page 98
Conclusion
The Anglican Communion already enjoys a Constitution that has served us well. The novel idea of a Covenant is out of order unless the Anglican Constitution is employed and properly amended or replaced. The fundamental issue in the current conflict, the most important and lasting reality, is not the matter of theological innovation, but the proposals and actions that would revolutionize the Anglican Constitution.
We do not want the Anglican Communion to become defined by juridical ecclesiology. By training and experience we are poignantly aware of the meaning and value of law as well as of theology. This gives us a unique perspective, which in turn leads us to conclude that the Anglican Communion must not be reduced to a hierarchically controlled, monolithic, confessional structure.
Please note that we do not all agree about the issues of human sexuality and the participation of women, children, and gay and lesbian persons in the church that have excited conflict; we voted differently when Gene Robinson’s election was confirmed. We look to Archbishop Williams’s aspiration and endorse it as our own: “My aim,” he said, “is to try and keep people at the table for as long as possible to understand one another and to encourage local churches to ask...what...to do to keep in that conversation, to keep around the table.”
Our legal training and experience drives home this analytical axiom: the most important factor in any scrutiny is the correct identification and definition of the issues, together with – and this weighs just as heavily – the elimination of wrong, irrelevant, or improperly formulated
issues. If the issues are identified and defined correctly, then all else can and should follow to the proper result. If they are not, a waste of effort, time, resources, and an unfortunate result will follow. Sometimes, even with the finest of goals and intentions, the result can be a disaster for justice and order. We believe that the issues that have been held up as the cause of the crisis within the Anglican Communion have been incorrectly identified. This statement is an effort to redefine the issues, and to begin a more respectful, non-polemical, conversation among faithful Anglicans who disagree over matters of grave importance and passionate concern.
The North American Churches are told that the conflict is over misbehavior: that there is an attempt to change traditional Anglican doctrines regarding human sexuality and the authority of scripture, and that these Provinces are acting by themselves without appropriate consultation with, and respect for, the Communion, therefore forcing the majority of the Provinces to take preventive, even disciplinary, action. That is not, in our opinion, a clear or definitive identification of what is going on, or of what is at stake. We offer the following statement of the issues.
The first step is to identify the actors and define their purpose: Two movements for change, each of which claims the mantle of reform, have finally come into conflict which is not only direct, but which could prove decisive. Of course, no Provincial Church has uniformly accepted either movement, and there are minority positions within each and every one of the national churches. Nevertheless, different Provinces have become identified with one or the other movements because the leadership and decision-making bodies have taken direct action or issued strong statements that support it. To the extent that each movement seeks to defeat the other with the claim that it is absolutely right and there can be no compromise the two movements place an intolerable tension on the Anglican Constitution, stretching it to the breaking point.
(1) One movement claims that its purpose is to draw the line on and reverse what it considers a liberal agenda for change. Actually, it is itself an agent for change in that it wants to redefine the Anglican Communion. This is a revolutionary movement in the name of conservative values. It would base affiliation on confessional compliance as interpreted and enforced by entirely novel institutions and structures—monolithic, juridical, and hierarchically dominated. It regrets, according to one report, “the chaos” of the Anglican way of defining what makes a person or a church a member of the Communion, of relating to one another, and of allowing for theological differences that arise from the necessary dialogue between each provincial church and its particular culture. It assumes that we need a written constitution and thus supports the novel idea of a covenant to fill that void, not because what we have is unwritten or chaotic, but because it is dissatisfied with the principles and accords by which we have lived up to now. This movement wants the whole Communion to conform to one of the “parties” or “wings” within Anglicanism. Once called the “Evangelical Party,” this wing of the Anglican Communion, given the rise global fundamentalism, might be more accurately defined as the “Conservative Evangelical/Anglo-Catholic Party"—or “The Traditionalists” as its American adherents prefer.
An instance of the fact that this party’s adherents aim not at mere preservation, or conservation can be seen in their desire to undo the Anglican tradition regarding the use of reason in interpretation of scripture. For more than a century and a half there has existed a consensus that finds values in the richness of interpreting scripture in different evangelistic circumstances without having, insisting upon, or enforcing any single doctrine of inspiration and hermeneutics. This tradition includes a number of strong and helpful statements from Lambeth Conference (see for example, Resolution 111.1 of “The Official Report of the Lambeth Conference 1998 and the whole Section III report in which statement after statement expresses the tradition, sometimes with different nuances but always with stark clarity.) The party’s desire to rid the church of “chaos” leads directly to a new rigidity in theology and structure that is patently un-Anglican and would require radical change.
(2) The other movement seeks to reform the church in a way that requires theological innovation, but is happy with Anglicanism as it was delivered: an international communion of like-minded Christian Churches united by the love of Christ for purposes of mission—unity and mission that are the gift of God in Jesus Christ through the gospel and expressed in the means of grace that are the sacraments of baptism and eucharist. It neither finds nor seeks in Anglicanism a unity based on a single creed or catechism or rhetoric. The movement envisions itself as a part of a larger movement that may eventually become the Ecumenical Reformation. This larger
picture, and the issues for reform that are being brought to the church, is complex and confusing to the church, which is in great flux.
This movement generally accepts, as it must, the reality that reform will take time and unfold largely in the dialogue between church and society. Even so, its adherents can sometimes grow impatient and make claims that are insensitive to cultural differences, the caustic vestiges of colonialism, and the continuing dominance of Western powers in international affairs.
We believe the most accurate way to summarize the basis of this reform is to say that the early church’s baptismal theology has been rediscovered and that this reform movement within the North American Anglican Churches seeks to bring that discovery to the church within our culture, in and for this century. The rediscovery of that theological foundation in the latter part of the nineteenth century conveyed sufficient clarity to cause action by the latter half of the twentieth century, such as was seen in the Second Vatican Council and in the ecumenical document Baptism, Eucharist, and Ministry, produced under the auspices of the World Council of Church’s Faith & Order council in 1982. Within Anglicanism this baptismal ecclesiology has led the North American Provinces toward the inclusion of all baptized people in the full life of the church without exclusion of any single category of persons. Thus all of the sacraments and positions of authority have become available, where personally qualified, to children, women, and gay and lesbian persons. For the North American Churches inclusiveness is a matter of justice, a theological category of the first order, as well as of sacramental theology. This is change, and it is profound change, but it is not constitutional change. That is, it does not change the identity and polity of the Anglican Church, and certainly not radically so.
The second step is to identify and define methodology: (1) One movement
unapologetically seeks the utter defeat of the other; and, in the process, would establish its vision of the church through new structures and agreements that finally will conform the Anglican Communion to that vision. One way of accomplishing this goal may necessitate the removal of the parts of the church that act in accord with the purposes of the other movement, if they refuse to recant and conform. The pressure being applied has come in a series of demands, assertions, and even threats; but the most pressing proposal would establish what is termed a “Covenant”. We know without question that this Covenant has been proposed in good will for all parts of the Communion. Most of the leaders and theological spokespersons of the North American Churches have tried to remain open to the possibilities. There are those who view such a covenant as a relatively simple statement of agreement that does not really change anything and hope that it may be a way to find peace from conflict and reconciliation. Some suspect that the technological, economic, and political developments that have led to pervasive globalization may demand international centralization and confessional conformity for ecclesiological bodies and faith communities, and believe that the proposed Covenant will serve the Anglican Communion. We must respectfully submit that the idea of the Covenant is dangerous in the extreme, the direst of consequences of which would be a fundamentally radical alteration of the Anglican Constitution.
(2) The other movement wishes to leave Anglicanism the way it is. Specifically addressing the controversial issue of including gay and lesbian persons to participate fully in the life of the church, this movement would wish to continue the established principle of open reception to theological innovation. Its traditional position clearly draws strength from recent statements in the Eames Commission Report, the Virginia Report, and at Lambeth, 1998 (e.g. see pages 206ff, The Official Report of the Lambeth Conference, Morehouse, 1998.) This movement holds justice in the highest regard and believes that justice is necessary for genuine unity, and in a conflict, is necessary for genuine reconciliation.
In the face of the proposed Covenant, our methodology will be to present the case in this way: we posit that there exists an unwritten and unenforceable but clearly recognized and anciently respected Anglican Constitution, that must not be lightly tossed aside. We say emphatically that no covenant can supplant the Anglican Constitution, though we do not claim, nor wish to claim, that there is an enforceable body of law that is called The Anglican Constitution. Our analogy is to International Constitutional Law.
The growing recognition that there are principles of international constitutional law to be applied to certain issues as they arrive in the relationships within the international community of states is a relatively recent phenomenon. (Don’t be surprised if your Chancellor asks you, “What International Constitution”?) Archbishop Williams made extended reference to the work of one outstanding scholar of this developing discipline (The Shield of Achilles, Philip Bobbitt, Alfred A. Knopf, 2002) in his 2002 Richard Dimleby lectures at the Westminster School of London. An evolving, but relatively clear and effective, International Constitution has existed in the West since the founding of nation-states during the Middle Ages and has been significant in the long movement through the various rules of princes, monarchs, aristocracies, and finally the peoples themselves. In each of these instances, the fundamental purpose of each nation and, in turn, of the community of states was security and order. Nations thus found it helpful to recognize and act on the basis of an understanding we are calling an International Constitution, for the purpose of protecting the particular forms of government in operation at the time and providing national and international security, law, and order—even where rulers and states were in competition and in conflict. One example is the way states came together after the Napoleonic Wars to form agreements that guarded against revolution within the constituent nations and protected the system of colonialism. The community of nations has long enjoyed a constitutional understanding for use in the way the states interact with one another, an understanding that
serves to help each state know what is expected and how it is to act in relation to other states and to the international community of states as a whole, and as a basis for the formulation of actualized international laws.
In much the same way, Anglicanism has enjoyed an understanding that attracted us, brought us together in defined bonds, distinguished us from other churches, and provided the norms and expectations for the life of our particular churches and for our communion-wide relations. It is not necessary that you personally agree with us when we posit that the Anglican Communion has an unwritten constitution. You may choose to call it classical Anglicanism, commonly held Anglican agreements and suppositions, our Anglican birthright, or the combination of ethos, customs, shared memory of experience, precedents, inviolate traditions, and ideals that. shape the Anglican consciousness. We think we are correct in seeing it as a Constitution and we find this precision enormously helpful for our understanding, but we will not quibble as long as you are able to agree that what is at stake is as important as constitutional change, that is, fundamental, “constituting” matters that define and distinguish us from other branches of the Christian Church.
The third step is to identify and define precisely what particular matters and changes are at stake in the conflict, and to determine the standing of what is being challenged by proposals for change. It is especially important to ascertain that which is constitutional, because amending or replacing a constitution should only be accepted after the most careful due deliberation and approval by an overwhelming majority, and not in a time of bitter conflict. One significant goal of a constitution is to protect a minority from the oppression of those who at any given moment enjoy a majority status. Because our purpose is limited to defining the issues in controversy we do not seek to articulate the entire Anglican Constitution. We focus instead on those “articles”, if you will, that are being threatened in the present crisis, and which we believe must be protected. Using well-established modalities of interpretation within international constitutional law (whether examining the comparative constitutions of nation-states or of the current version of the International Constitution itself) we analyze each issue. (This will be the longest and most involved analysis in the body of the statement itself.) We employ six modalities: the first half of which share the desire to ground interpretations objectively: (1) based on the original intent; (2) based on the text; (3) based on structural inferences. The second three rest interpretations in more subjective criteria: (4) based on the precedents; (5) based on the general ethos and the specific purpose underlying a provision; (6) based on the balance of creditable contrarieties in terms of costs and benefits.
Finally, we will definitively establish that these “articles” enjoy the highest status within Anglicanism, that is, that they have constitutional standing. Thus, it is to be understood that they cannot be amended or pushed aside by a new covenant without paying the closest and most respectful attention to them. At this point we trust that the issues will have been defined. properly and correctly.
The following traditions are under attack and they are articles of the Anglican Constitution:
(1) The interlocking traditions concerning Anglican Comprehensiveness, the Via Media, and Lex Orandi Lex Credendi.
If the Anglican Communion reduces its comprehensiveness to a conforming set of confessional doctrines, and discounts the uniting force of worship, it will be a different church.
(2) The authority of Scripture, Reason, and Tradition. If the Anglican Communion decides to read scripture literally or impose conformity to a single interpretation without attempting objective regard for critical scholarship, it will be a different church.
(3) Episcopal Oversight. If bishops are increasingly used in the church as a sign of division, or of conformity, rather than a sign of unity, it will be a different church.
(4) Baptismal Bonds and Community as Communion. If the Anglican Communion decides to allow Christians to refuse to worship and share communion with fellow baptized Christians, including collegial bishops, it will be a different church.
(5) Jurisdiction and the Diocese as the basic and local unit of the Church in relation to congregations, the Province, and the Anglican Communion. If the Anglican Communion creates jurisdictions that cross provincial and diocesan boundaries in order to satisfy those within a given jurisdiction who disagree with the episcopal authority and the majority decisions of the duly constituted decision-making bodies of that jurisdiction,
or if it allows extra-jurisdictional episcopal authority to be exercised at personal whim, it will be a different church.
(6) Provincial Autonomy. If the Anglican Communion creates a Communion-wide teaching office (magisterium) requiring and perhaps enforcing doctrinal conformity without regard to cultural and experiential differences among provinces, enabling it to overrule decisions duly made by a province, it will be a different church.
(7) The Mission of the Church, especially in terms of justice. If Anglicanism separates love of God from love of neighbor, separates spirituality, religious observance, and doctrinal adherence from the mission for justice, and separates vocation to creation from vocation to kingdom, it will be a different church.
Clearly, some of the primates, perhaps a majority, are deeply troubled by decisions of the Episcopal Church in the United States and by actions taken in the Anglican Church of Canada. Some have formally distanced themselves under a newly invented rubric, termed “broken bonds of affection”. But they are the ones separating themselves. They may choose to withdraw in any number of ways, but the Episcopal Church will not. We trust that our statement clarifies that under the existing articles of agreement, written and unwritten, member Provinces cannot be expelled or restricted from full participation.
The issue is not human sexuality or provincial misbehavior. The issue is the Anglican identity as defined by the Anglican Constitution. Is it to radically amended or replaced?
The Constitutional Crisis, 2007
Introduction
We do not want the Anglican Communion to become defined by juridical ecclesiology. This is not the Anglican way. Our history has survived efforts to put all-controlling structures in place, each time at the call of a movement that had its day and then became passé. Invariably juridical ecclesiology has been successfully resisted, or, as with the Puritan ascendancy during the mid-seventeenth century was tried and rejected. Anglicanism is distinguished by having its different way of defining what makes a person or a church Anglican and of relating to one another. This generation, however is under increasing pressures to conform Anglicanism to other western Churches, Roman Catholic and Protestant, which base affiliation on confessional compliance as interpreted and enforced by monolithic juridical institutions.
We do not want to lose the unique Anglican contribution to the ecumenical unity that the traditions seek to realize. Anglicanism provides an exceptional model for ecclesiastical unity, including its reach across international boundaries and cultural divergence, which would be a great loss to the ecumenical movement. It is not just Anglican unity with which we must be concerned, but that general unity to which Jesus calls his church. Nevertheless, the Anglican Communion has proposals before it that have been developed without consultation with ecumenical partners, without being considered in their ecumenical context, and without sufficient regard to that source of unity that cannot arise from agreement but is the gift of God in Jesus Christ through the gospel and expressed in the means of grace that are the sacraments of baptism and eucharist, Already the Evangelical Lutheran Church has formally expressed its dismay with the potential changes to the church with which it has entered into full communion and toward which it was moving into unity, There can be little doubt that the branch of the
Church most like the Anglican Communion in terms of polity, the Eastern Orthodox Churches with their long standing system of autocephalous autonomy within unity, will feel the impact of any Anglican movement away from our diversity within unity and toward a hierarchically controlled, internationally monolithic, confessional, juridical polity. We have not brought any of our ecumenical partners into meaningful discussion about the possibilities of radical change.
We speak to you in this statement as colleagues who are legally as well as theologically trained. We do not all agree about the issues of human sexuality and the participation of women, children, and gay and lesbian persons in the church that have excited conflict; some of us were in favor of confirming Gene Robinson’s election and some were not. We speak together because
we love the Anglican Communion and want to be faithful to it, as we want it to remain faithful to itself. Our stance may appear paradoxical to the unversed, who perhaps expect lawyers to be legalistic, but it is because we are poignantly aware of the meaning and value of the law that we realize the ties that bind the Anglican Communion must not be reduced to juridical structures. Indeed, we believe that one very good way to understand what is really happening in the current conflict is to examine that which constitutes the membership of Anglicanism in terns of constitutional law. That is, we believe that there are classical forms and principles of Anglicanism that have been developed over our history and which effectively make up a constitution. When that constitution is examined we discover fundamentally what is at stake.
Please take note that this is not a legal analysis. This is a theological analysis using the tried and proved methodologies made available in law for the sort of research and examination that is needed to avoid losing our constitutional identity and slipping into an inappropriate juridical mode. This statement has been prepared with the advice and expertise of certain of the church’s finest scholars who specialize in particularly relevant disciplines, such as Anglican history, ecclesiastical theology, scriptural theology, sacramental theology, and constitutional law.
The Analogy to International Constitutional Law
In examining the constitutional nature of the Anglican position on authority and the whole question of the existence and validity of the Anglican Constitution it is particularly appropriate to turn to constitutional law at the international level. This is so not only because the Anglican Communion is global, but also because of several readily apparent similarities. First, the international community is composed of a society of autonomously governed states in much the same way that the Anglican Communion is an international “society” of autonomously governed provinces. The international society of states and the international Anglican Communion each form, with varying degrees of intentionality, a single and united body. Each body is unified primarily in the desire to accomplish a common mission and to foster the mission of each component part, while the autonomy of each is recognized and respected. The international community of Anglican Provinces looks to certain institutions and to a body of tradition, ethos, and custom, which, taken together, compose a governing constitution. Neither the community of states nor the Anglican Communion has a written constitution. Neither the Anglican Constitution nor the International Constitution is enforceable, except as it is actualized in formal agreements and accepted law. It is not coincidental that the Anglican Communion emerged simultaneously with the emergence of nation states in Medieval Europe. Colonialism and the subsequent rise of new, non-white and non-English-speaking nations throughout the nineteenth and twentieth centuries shaped both the international constitution and the truly global Anglican Communion.
Now there is an emerging understanding among many experts that an International Constitution exists, at least in this sense: there are recognized principles of international constitutional law to be applied to certain issues as they arise in the relationships within the international community of states. It is used to facilitate diplomacy, to help each state understand the expectations of other states, and as a basis for international laws. The fundamental purpose of each nation and, in turn, of the community. of states has always been order and security. Nations have found it helpful to relate on the basis of an understanding that emerges in a given era, becomes recognized and institutionalized in formal agreements and internationally accepted laws. This understanding invariably emerges from circumstances and events rather than simply by design, and it is increasingly being called an International Constitution. It has served in each era to protect the particular forms of government in operation and it provided national and international security, law, and order—even where rulers and states were in competition and in conflict.
To understand what we are calling the International Constitution, we can look to the formational relationship of the ever evolving United States Constitution and the ever-evolving International Constitution. When the Americans crafted their Constitution in the attempt to establish a republican form of government, the international community was coming to grips with a tendency away from monarchies. The document finally agreed upon was rather more conservative than the majority of those we have come to think of as our national fathers. In retrospect, it is apparent that the new republic was unready to allow its entire population to become fully participating citizens. But there was more to this telling failure than that. The international community was not ready for, and could not support, a nation-state in which the defining purpose was to serve the best interests of all its citizens as equals who themselves would define their interests. In fact, the international community was not ready to address this extreme than of national order for another century. It was not until after the shock of the French Revolution and the Napoleonic Wars, a generation after the American Revolution, that the community of states was ready to face the emergence of the next development, a new international order based on competitive nationalism and designed for the citizen to serve their state in exchange for order, security, and the identification with national success. For example, Napoleon had been the first to use all the citizens to form massive armies instead of a professional standing army that fought on behalf of the citizens. Hence, the community of states at that time recognized the need for a new international understanding, or unwritten constitution, and formed new agreements and schemes, such as those that guarded against revolution within the constituent nations and protected the system of colonialism.
In fact, it was not until nearly a century had passed and an awful war had been won that the United States was able to amend its Constitution to extend the guarantees inherent in its original vision of a government in which all people are equal and exercise self-determination, voting on how to serve the interests of one another and the whole. President Abraham Lincoln best articulated the promised but unfulfilled American order following a highly climatic moment at Gettysburg when he called for “a government of the people, by the people, and for the people.” That is, all the people. The effective expansion of citizenship and the franchise to all members of the population is one way to tell the American story, but it was a story that could only unfold in step with the evolving international understanding that gradually became the International Constitution. This began with Lincoln and Bismarck, was fully established by the end of World War I, and carried the twentieth century through the long struggle between fascism, communism, and parliamentary democracy. The promise that every citizen—all categories of citizens—should have an effective vote was not fulfilled in the United States for yet another century after Lincoln’s words at Gettysburg.
This American story transpired as a dramatic and important part of a long movement in international law that may arbitrarily be said to have begun with the appearance of the state and proceeded to develop with the establishment of states over the world, first in the West and finally in the non-white nations of the twentieth century. It is, of course, still evolving. To facilitate and support each step in that ever developing movement through the rule of princes, monarchs, aristocracies, and finally the peoples themselves, a relatively clear and effective international constitutional law came into being.
At the present moment the international constitution is in a new state of flux, coping with what is termed globalization and new threats to national security and order. Our Archbishop of Canterbury has publicly pondered the role of the church in this new dispensation, when states are vexed about how to provide national and international security, law, and order while unable to secure boundaries against terrorism and while coming to grips with new issues, such as when it is appropriate to force national sovereignty to yield to the interests of human rights.
Caveat: The Anglican Constitution is Not a Body of Law
It is not necessary that you personally agree with us when we posit that the Anglican Communion has an unwritten Constitution. You may choose to call it classical Anglicanism, commonly held Anglican agreements and suppositions, our Anglican birthright, or the combination of ethos, customs, ideals, precedents, shared memory of experience, and inviolate traditions that shape the Anglican consciousness. We believe the Archbishop of Cape Town was referring to our Constitution when he defined “the broad rich heartlands of our Anglican
Heritage. We think we are correct in seeing it as a Constitution and we find this precision enormously helpful for our understanding, but we will not quibble as long as you are able to agree that what is at stake is as important as constitutional change, that is, fundamental, “constituting” matters that define and distinguish us from other branches of the Christian Church.
We want to be absolutely clear about this point: we do not seek to recognize and establish a body of law that is to be enforced in any way. The analogy we will use to international constitution law is helpful in this regard, for the Constitution of the Anglican Communion serves in much the same way. The International Constitution is not available (or if you prefer, the presently applicable principles of international law are not there) for the purpose of enforcement but only for use in the way the states interact with one another. It is an understanding that serves to help each state know what is expected of it and how it is to act in relation to other states and to the international community of states as a whole, and is a basis for the formulation of actualized international laws. International constitutional law is applied and succeeds in its effectiveness through politics and diplomacy and it is protected politically and diplomatically. No state can be taken to court for having violated the International Constitution as such. For that to happen the violation must be spelled out in definitive terms with enforcement mechanisms and institutions put in place. International law that can be enforced in international courts is explicitly accepted by the states through their own sovereign decision-making institutions. On the other hand, of course, no international laws could be enforced that violate the international constitution. This is the way the Anglican Constitution functions.
Our caveat is this: The Anglican Constitution is understood as those principles that are fundamental to and constitutive of Anglicanism and it is available to the Communion for the life of each Province and for our interaction, but we do not propose that it is to be recognized as a body of law to be imposed or enforced. Indeed, another way to say this is to clarify that we want to keep our unwritten and unenforceable, but long recognized and respected Anglican Constitution, the way it is. We do not want to radically change it or replace it.
Two Movements for Change: Theological Reform v. Constitutional Redefinition
At present there are two movements in the international Anglican Communion that stand in opposition to one another and that have created a genuine crisis. To the extent that each movement makes the demand that its way is the only way forward and that the opposition must be defeated, intolerable tension is placed on the Constitution of the Communion, stretching it to the breaking point. On the one hand, there is a movement that is grounded in theological development and defines itself as reform. It has led to serious changes of significant consequence in the practice and order of the North American provinces. It has led to serious questions in those parts of the Anglican Communion that are open to the theological reform. On the other hand, there is a countering movement to redefine classical Anglicanism, to change its identity in ways . that are fundamental and to change the way it is constituted. This movement has arisen in the name of conserving theological tradition. Both sides, in actuality, seek change. The crisis is over whether the change will be theological reform or constitutional redefinition, or schism—the change no one wants.
It is ultimately irrelevant that the actions and proposals of those seeking constitutional change have materialized as an answering demand to those seeking theological reform. There is no need to make claims of bad faith on the part of those in either movement, any more than there is any reason for either movement to be defensive about what they seek and to be less than perfectly open about their positions and what they desire. The reality is that Anglicans are in a
state of profound theological disagreement about what makes Anglicanism what it is, which has led to political conflict and the threat of separation. Our call is to work out our differences in good faith, and that we must do. Answering the call requires that we speak forthrightly to one another in frank terms that each can understand and that each seeks to appreciate, that we have the sort of conversation David Tracy reminds us is necessary in a pluralistic society: “Real conversation occurs only when the participants allow the question, the subject matter, to assume primacy. It occurs only when our usual fears...die, whether that fear is expressed in either arrogance or scrupulosity matters little.” (The Analogical Imagination, page 101). Conversation must continue in the attempt to gain a clear and fair analysis of the situation, We offer this as a statement for conversation.
We want to declare that we stand for being faithful to the Anglican Communion no matter what. We are determined to be at the table and hoping to maintain serious discussion as long as we are invited. Even if an overwhelming majority ultimately tries to remove us from all bodies, institutions, and structures, and proceeds to deny us all participation in governing and decision-making, we are determined to remain faithful Anglicans. (As we will demonstrate, we do not believe a mere majority can legally do so, and we question whether it can be done at all as long as a Province chooses to remain.) We will look for our model to Paul who remained faithful to the Jerusalem Church even in the face of significant disagreement about whether or not the Gentiles to whom he offered the Gospel and to whom he ministered should be included in the full life of the church. Paul’s understanding of communion in Christ, of the unity that is not merely formal, not a thing that can be chosen or put aside, but that which is a given with and for the whole body, was so real to him that he spent a considerable amount of his limited time and energy raising funds from these same Gentiles as a gift to the Church in Jerusalem. While Paul was afraid that their theological disdain for that which he felt called by God to do would cause the leadership to reject the offering, he realized that this was not for him to decide. He had simply to be faithful to his calling and gather the offering to present. We will urge the American Church to remain faithful in this way, with prayerful and respectful patience. We will not go away.
Baptismal Ecclesiology
It was at the General Convention of 1970 that the Episcopal Church in the United States explicitly accepted the challenge to re-examine its baptismal theology in the light of what has been learned in the twentieth century about the early church. The liturgical movement, together with many other reforms, began in the middle of the nineteenth century with the courageous use of critical biblical scholarship and it relied heavily upon what that scholarship gradually discovered about the life of the early church. Interestingly enough, it was this same General Convention of 1970 that seated women as deputies for the first time. Meanwhile, the issue for debate at the moment was whether or not to give communion to children prior to confirmation. This had been driven by the gradual rediscovery of the baptismal theology of the early church. The debate resulted in the decision to include children in the full sacramental life of the church and consequently in the decision to establish this rediscovered baptismal theology in The Book of Common Prayer that was being prepared. Just six years later in 1976, the General Convention voted to accept that Prayer Book as revised. It also voted to ordain women. Here was no coincidence: the church had been led to this decision by the new baptismal theology within the Prayer Book. The theology that affirms the foundation of the church’s ministry in baptism and the equality of status among the baptized, that affirms the church as sign and foretaste of the eschatological fulfillment of communion in the coming of the Kingdom for which we pray, while affirming the creation theology of the church as mission-driven-sacrament to the world, this baptismal theology had immediate effect even during trial use.
It is that same baptismal theology that led just as inexorably to today’s crisis over the place of gay and lesbian persons in the Body of Christ, The American Church could not ignore the challenge to include children, women, and gay and lesbian persons in the full life of the church due to its own theological logic. This pressure for reform welled up from within its own internal life. It is important to realize that the reforms of inclusion were not conjured up for the sake of conformity to society or for any other instrument of imagination, but they came from the inexorable logic of re-forming and con-forming our theology and practice to what the Episcopal Church considered generative for the Christian Church.
Thereafter, in 1982, the landmark ecumenical and ecclesiastical text Baptism, Eucharist, and Ministry was produced under the auspices of the World Council of Church’s Faith and Order council. It represented participation by theologians from traditions along a spectrum from Anglican, Eastern Orthodox, Roman Catholic, Lutheran, Reformed, Methodist, Baptist, to Pentecostal. The accord exhibits the thorough-going baptismal ecclesiology of the North American Books of Common Prayer in which Christians find saving identity in Christ and the church is realized in the eucharistic celebration of word and sacrament, led by an ordained ministry exercising its service always in three inter-related aspects: the personal, the collegial, and the communal. We may take backward steps from time to time but we can remain confident that the overall movement, ecumenically and within each of the adopting traditions, will be steadily forward behind this common charter and standard.
was afraid that their theological disdain for that which he felt called by God to do would cause the leadership to reject the offering, he realized that this was not for him to decide. He had simply to be faithful to his calling and gather the offering to present. We will urge the American Church to remain faithful in this way, with prayerful and respectful patience. We will not go away.
Baptismal Ecclesiology
It was at the General Convention of 1970 that the Episcopal Church in the United States explicitly accepted the challenge to re-examine its baptismal theology in the light of what has been learned in the twentieth century about the early church. The liturgical movement, together with many other reforms, began in the middle of the nineteenth century with the courageous use of critical biblical scholarship and it relied heavily upon what that scholarship gradually discovered about the life of the early church. Interestingly enough, it was this same General Convention of 1970 that seated women as deputies for the first time. Meanwhile, the issue for debate at the moment was whether or not to give communion to children prior to confirmation. This had been driven by the gradual rediscovery of the baptismal theology of the early church. The debate resulted in the decision to include children in the full sacramental life of the church and consequently in the decision to establish this rediscovered baptismal theology in The Book of Common Prayer that was being prepared, Just six years later in 1976, the General Convention voted to accept that Prayer Book as revised. It also voted to ordain women. Here was no coincidence: the church had been led to this decision by the new baptismal theology within the Prayer Book. The theology that affirms the foundation of the church’s ministry in baptism and the equality of status among the baptized, that affirms the church as sign and foretaste of the eschatological fulfillment of communion in the coming of the Kingdom for which we pray, while affirming the creation theology of the church as mission-driven-sacrament to the world, this baptismal theology had immediate effect even during trial use.
It is that same baptismal theology that led just as inexorably to today’s crisis over the place of gay and lesbian persons in the Body of Christ. The American Church could not ignore the challenge to include children, women, and gay and lesbian persons in the full life of the church due to its own theological logic. This pressure for reform welled up from within its own internal life. It is important to realize that the reforms of inclusion were not conjured up for the sake of conformity to society or for any other instrument of imagination, but they came from the inexorable logic of re-forming and con-forming our theology and practice to what the Episcopal. Church considered generative for the Christian Church.
Thereafter, in 1982, the landmark ecumenical and ecclesiastical text Baptism, Eucharist, and Ministry was produced under the auspices of the World Council of Church’s Faith and Order council. It represented participation by theologians from traditions along a spectrum from Anglican, Eastern Orthodox, Roman Catholic, Lutheran, Reformed, Methodist, Baptist, to Pentecostal. The accord exhibits the thorough-going baptismal ecclesiology of the North American Books of Common Prayer in which Christians find saving identity in Christ and the church is realized in the eucharistic celebration of word and sacrament, led by an ordained ministry exercising its service always in three inter-related aspects: the personal, the collegial, and the communal. We may take backward steps from time to time but we can remain confident that the overall movement, ecumenically and within each of the adopting traditions, will be steadily forward behind this common charter and standard.
At the same time that the North American Churches of the Anglican Communion were adopting and starting to live out the implications of this baptismal theology our culture was absorbing the difficult lessons of justice learned during the U. S. civil rights movement of the mid-twentieth century. Thus, it would be impossible to exaggerate the profound sense in the Episcopal Church’s House of Bishops that in the name of God henceforth the church must always stand for justice, and actively so. A significant number of us began to see that the next issue of justice in American culture was emerging from a relatively rapid transformation in its understanding of human sexuality, in particular that of gay and lesbian persons. We were confronted with the history of discrimination, oppression, and hate crimes against a whole class of persons and many of us began to change our thinking.
We were tremendously influenced by an increasing number of friends and colleagues who came forward to acknowledge that they are gay and lesbian. Our own experience of gay and lesbian persons whom we knew as faithful Christians has been a revelation to many of us.
The desire to perform our mission as an incarnational community, a church manifesting and offering the life of the risen Christ to our particular society, especially to a younger population who do not share the assumptions of previous generations, compelled us to reexamine our theology of human sexuality. This is something we continue to struggle with in many ways and we cannot claim to have settled this in the same way we have settled on our baptismal theology. Thus, the church felt the pressures for reform, powerfully so, and they came externally from American culture as well as internally from the dynamic of theological discoveries and institutional life.
Gradually those who had been excluded by category were welcomed to participation in all of the sacraments, offices of governance, and holy orders. Within a generation the reach of the movement has encompassed a gay bishop who lives with a partner in a life long commitment, the reception of communion prior to confirmation by a majority of baptized children, and in female Presiding Bishop.
Several Provinces of the Anglican Communion have followed the American lead in revising their prayer books, beginning with the Canadian Anglican Church. The revisions were demanded by sacramental theology and when the U. S. Book of Common Prayer served as one of the models for revision they were centered in the same rediscovery of the early church’s baptismal theology. In many Anglican Churches the rediscovered baptismal theology is in place and the pressure to bring the inclusiveness it implies to actual practice is present (perhaps in some places like a burr under the saddle).
Including children, women, and gay and lesbian persons in the full life of the church is indeed a momentous change in Anglican theology and practice. The change is profound, but it in no way represents constitutional changes that effectively altered our Anglican identity. Contrariwise revolutionaries in the Anglican Communion are those who would radically amend the Constitution.
Gay and lesbian persons, women, and children cannot be accepted into the full life of the church everywhere, in particular because of legitimate cultural differences but also because of differences in the experiences and internal life of the churches. There is no expectation that the American and Canadian reforms can occur, nor that they should be imposed, in those provinces where the dialogue between theology and culture has established that it is unacceptable. Clearly, the majority of the Provinces of the Anglican Church are as yet unable to accept the North American understanding within the boundaries of their cultures. At the same time, Provinces with and without revised prayer books continue to exclude women and children, as well as gay and lesbian communicants, from sacramental participation and leadership roles. It can legitimately be said that baptismal theology is dividing the church.
The baptismal theology of many Anglicans is still primarily defined by the scholastic theology of the medieval Roman Catholic Church and by the definitions of the 16`h Century Protestant Reformations. At any rate, the North American Provinces legitimately holds the expectation that this change can be established where it is culturally acceptable, and to the extent that the rediscovered theology of baptism comes to be accepted. Indeed, there can be little doubt that the younger citizens of these western cultures will come to demand it of the North American churches.
The Opposition to Theological Development
Serious opposition to the baptismal ecclesiology of The Book of Common Prayer was voiced at home and abroad with each step the Episcopal Church took in the extension of its logic, first over the inclusion of baptized children, then more vociferously over the inclusion of baptized women, and finally over the inclusion of baptized gay and lesbian persons. By and large, it is the same North American leadership and the same Provinces from abroad that have opposed each step. This time opposition from abroad proved more effective and the proverbial foot came down. For one thing, the debate over this issue is not as settled within the secular culture of the United States as are controversies concerning women and children. But primarily, the opposition seems to have found it is much more effectively able to claim that this reform is about human sexuality and biblical faithfulness, and thus to assume a moral high ground while casting the American Church in the onerous role of change agents.
In our opinion there are other reasons for the present conflict that must be named, confessed, and addressed. The underlying and perhaps dominant issues go much deeper into the resentment against Western powers and Western culture caused by colonialism and the dominating wealth, power, privilege, and international standing still enjoyed by the industrialized West. Frustration over many forms of repression, condescension, and cultural destruction is surely deep-seated, and the need to change the moral order that is the source of this is long overdue. Assuredly, the Western churches are obliged to engage the Anglican Provinces that emerged from colonies in the difficult conversation about Western dominance with manifest and genuine humility. This begins with the acceptance by the churches of the cultural West of a minority status within the Communion. The impact of the new relationships and the constitutional dynamic within Anglicanism will be much like the relational and constitutional developments between the old colonial powers and the emerging non-white nations within the international community of nations, that is, in international constitutional law. The new dispensation may be difficult for all parties from time to time, but we must never forget that it is worth the trouble.
Too many within the North American Provinces have responded to criticism from other Provinces with condescending cultural accusations, many of which in turn play directly into prejudices against Western culture and common theological postures of western Churches. For example, it is often pointed out that other cultures have not enjoyed the benefits and insights of the Enlightenment. In return those outside of western culture see in the Enlightenment a myth designed to remake and better the world in the image and interests of the West’s secular elites, one to which the liberal western churches too often and too easily adapt: the myth that the world finally grew up, thanks to Northern and Western Europe, got in touch with the truth, and became
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good about 300 years ago; that human beings opened their eyes to see that religion is mostly ignorance and superstition; that this must give way to science, which is equated with fact and reason; that tribal allegiances and corporate commitments must yield to individualism, fulfillment of self-hood, and cosmopolitanism; that top down command systems must defer to democratic systems that require the separation of church from secular life and politics and of politics from science.
The reality is that we must free ourselves, on all sides, from being trapped by feelings and cultural assumptions that are not only false but which get in the way of genuine consideration of the issues and the unity of our fellowship. There are new claims being made for Anglican “Instruments of Unity”, mostly new structures about which there is no consensus but which those seeking a new and revolutionary order seem to be looking to as instruments of new authority. In fact, if they are to serve unity their first and foremost role should be to uphold and strengthen classical Anglicanism against subversion and to protect the well established rights of the minority from the tyranny of the majority in any given moment. We are confident that this will be accomplished in this day and age by fostering restoration of the moral order that begins with dialogue over the continuing history of Western domination. We are deeply cognizant that the Archbishop of Canterbury and most leaders of our Anglican institutions are engaged in doing just this.
Demands and Proposals for Constitutional Change
A Covenant
Opposition to the North American reforms that flowed from the rediscovery of the early church’s baptismal theology soon became a series of demands and proposals that, if made
permanent and enforceable within the Anglican Communion, would radically change its identity constitutionally. Perhaps the most dangerous immediate proposal, though we know it is intended to be anything but that, is the call to establish a new covenant between the Provinces of the Anglican Communion. The first issue, and ultimately the fundamental issue, is that this call fails to take sufficient account of the agreements and commonly held understandings that have given a specific Anglican identity to the widely diverse international society of churches that make up the Communion, and which distinguishes Anglicanism from any other branch or form of Christianity. Those agreements and common understandings are, by their nature, constitutional. Taken as a body, they form a Constitution. The covenant proposal is dangerous because it threatens to alter substantially the very substance of the Constitution and if that happens it is very unlikely that the center will hold, because the Constitution is the very foundation of the Communion, not the views and positions of this or any other particular time in history.
As Frederick Quinn has recently noted, the idea of covenants that emerged from the Continental Reformation via a Swiss theologian, Henrich Bullinger, never appealed to Anglicans. In Bullinger’s thinking, the primary virtue of covenants was to provide credentials for the new state churches and monarchs of Northern Europe, which were not problems for the emerging English Church. Reformation writers on the continent were caught up in deciding who was saved and who was damned, and covenants assumed the role of gatekeeper. Anglicans developed a distinctive way of resolving differences, as expounded in anti-covenant, anti-Puritan works like Richard Hooker’s Laws of Ecclesiastical Polity (1593) and in the writings of Jeremy Taylor (1613-1667). Do today’s Anglicans really want to make the radical break with our tradition indicated in Articles 5.5 and 5.6 of the proposed covenant, and place that exclusionary role of gatekeeper the hand’s of our Primates?
30 Members and churches of the Anglican Communion are called to commit:
(4) to heed the counsel of our Instruments of Communion in matters which threaten the unity of the Communion and the effectiveness of our mission. While [these] have no juridical or executive authority in our Provinces, we recognise them as those bodies by which our common life in Christ is articulated and sustained, and which therefore carry a moral authority which commands our respect.
(5) to seek guidance of the Instruments of Communion, where there are matters in serious dispute among churches that cannot be resolved by mutual admonition and counsel:
1. by submitting the matter to the Primates’ Meeting
2. if the Primates believe that the matter is not one for which a common mind has been articulated, they will seek it with the other instruments and their councils
3. finally, on this basis, the Primates will offer guidance and direction.
(6) We acknowledge that in the most extreme circumstances, where member churches choose not to fulfil the substance of the covenant as understood by the Councils of the Instruments of Communion, we will consider that such churches will have relinquished for themselves the force and meaning of the covenant’s purpose, and a process of restoration and renewal will be required to re-establish their covenant relationship with other member churches.
(http://www.anglicancommunion.org. An Anglican Covenant: A Draft for Discussion, emphasis added. The citation is, significantly, from section 6 “Unity of Communion")
Despite the stated assumption that everyone wants a covenant, as presented in the introduction to the document, it must be questioned whether anyone really wants one except those who hope to find a non-substantive way out of conflict (a worthy hope but here misplaced) and those who seek the radical change to centralized authority and confessional conformity. Tanzania Communiqué
The recent Tanzania Communiqué and the demands that followed it went beyond a call for a new covenant and demonstrated the dangers inherent in Constitutional change without the
careful and faithful observation of those universally recognized safeguards that must be placed in constitutional governance, procedures that protect the community as a whole from precipitous change because of changing political winds and due processes that protect minority rights and prerogatives. First, the Communiqué failed, no doubt inadvertently and with good will but without due diligence, to take into account certain features of the Constitution and polity of the Episcopal Church in the United States.
Episcopal polity stands apart from that of other Provinces throughout the communion. Ever since 1789, for example, our bishops have been elected in conventions of clergy and lay people. That procedure is twice validated in the ordination rite for bishops in the Book of Common Prayer. First, at the presentation, representatives of the diocese, both ordained and lay persons, declare to the Presiding Bishop, “N., Bishop in the Church of God, the clergy and the people (emphasis added) of the Diocese of N., trusting in the guidance of the Holy Spirit have chosen N.N. to be a bishop and chief pastor. (BCP, p 513) Second, during the examination, the Presiding Bishop opens with these words, “My sister/brother, the people (emphasis added) have chosen you and have affirmed their trust in you acclaiming your election.” (ibid, p 517) By contrast, the prime minister, on behalf of the sovereign nominates archbishops and bishops of the Church of England to Parliament, which either confirms or rejects the nominees. Presumably, the Holy Spirit works his mysterious ways in that overtly political institution as in an American diocesan or General Convention. Furthermore, the General Convention, not the Parliament, whether in the United Kingdom, Nigeria, or anywhere else, acts for the Episcopal Church, which is something Anglicans in the Commonwealth of Nations fail to grasp fully. Consequently, the House of Bishops of the Episcopal Church cannot address such demands as are in the Tanzania Communiqué.
Then too, as Robert Brooks has pointed out in several postings, action was posed that would violate the Constitution of The Anglican Consultative Union (ACC). Article 2 lists, and therefore definitively limits, the “powers” that the Council exercises (specifically 18 of them) and explicitly defines the role of the Primates’ Meeting and the Archbishop of Canterbury in relation to the Council. Article 3 lists its constitutionally recognized membership, naming all the Provinces of the Anglican Communion. The Episco