Conservative canon lawyer Allan S. Haley says that ECUSA is barely four months away from precipitating a wholly unnecessary constitutional crisis that can only weaken it further and drive its constituent pieces yet further apart. He says the changes to Title IV will transform the Presiding Bishop of ECUSA into a metropolitan.

An article written by C. Alan Runyan, a South Carolina lawyer, and Mark McCall, a member of the New York bar for the Anglican Communion Institute (a group of serious-minded Episcopalian theologians bent on staying in The Episcopal Church), entitled "Title IV Revisions Unmasked," blasted the changes arguing that the new Title IV disciplinary canons enacted at the last General Convention are unconstitutional and unwise. They are unconstitutional because they infringe on the exclusive rights of dioceses to institute courts for the discipline of clergy and give the Presiding Bishop metropolitical authority over other bishops. They are unwise because they deny basic due process rights to diocesan clergy.

Opponents to the Title IV revisions also object to provisions in the sections pertaining to discipline of bishops that give the presiding bishop the ability to give pastoral direction to other bishops and the ability to temporarily inhibit a bishop without the consent of the Standing Committee of the diocese in which he or she has jurisdiction. They argue that the presiding bishop's duties and authority are limited by the constitution.

Constitutional language prohibits a bishop from exercising their authority outside of the diocese that elected them. With the pending changes, that authority now applies to the presiding bishop, in their opinion.

Three supporters of the changes to the "Title IV Task Force II Framers" have defended the constitutionality of the disciplinary canon revisions. Duncan Bayne, Diocese of Olympia vice chancellor; Stephen Hutchinson, Diocese of Utah chancellor; and Joseph Delafield, Diocese of Maine chancellor say that all three were "active participants in the nine-year process of development and adoption of the amendments."

They have hit back at the ACI theologians who say the disciplinary canons set to go into effect July 1 are unconstitutional by asserting the constitutionality of the amendments.

Delafield said in his short statement that the three wrote the paper in response to questions that were raised by the leadership of the Diocese of South Carolina and others as to whether the revision conforms to the church's constitution.

Defenders of the Title IV revisions say that the church's constitution authorizes the canons to spell out the presiding bishop's duties while opponents say that the presiding bishop's duties and authority are limited by the constitution.

Bishop Mark Lawrence of South Carolina does not believe that General Convention has that authority. His Diocesan Convention has backed him up by refusing to accede to the new Title IV revisions adopted at Anaheim in 2009.

During its Feb. 18 - 19 220th annual convention, the Diocese of South Carolina "passed again" two of the "protective resolutions" that a re-convened diocesan convention had approved in October.

The first resolution removed the accession clause to the Canons of the Episcopal Church. The second enabled the convention to meet more frequently than annually, if needed.

"These resolutions seek to protect the diocese from any attempt at un-constitutional intrusions in our corporate life in South Carolina and were in response to the revisions to the Title IV Canons of the Episcopal Church," the diocese argues.

In his convention address, Lawrence argued that the actions he has taken in recent months concerning his stand on the revisions include talking to his fellow provincial bishops and hearing their concerns, as well as speaking at the clergy conference in the Diocese of Central Pennsylvania.

"Certainly there remain, however, significant differences for many of us with the direction of the Episcopal Church," Lawrence told the convention before the vote on the resolutions. "So I believe we need to finish what we set out to do at our convention in 2010, upholding the heritage and constitution of our church. I believe we have done a service to everyone in the Episcopal Church by pointing out the problems inherent in the Title IV revisions."

The diocese voted overwhelmingly by a two-thirds majority not to cede authority to the national church, but to retain their sovereign right. They will no longer recognize the Canons of the national Church as binding in the Diocese, to the extent that they are inconsistent with the diocesan Constitution and Canons. The Diocese of Central Florida recently said its canons would comply with those of the Episcopal Church as long as they did not violate the church's constitution in a vote related to the Title IV revisions. After tabling a vote on the revisions during their October convention, Dallas Episcopalians are due to consider the revisions during a special convention this year. The Diocese of Western Louisiana said during its last convention that the General Convention of the Episcopal Church ought to change the Title IV revisions to limit the authority given to the presiding bishop.

Haley argues that the changes to Title IV are voluntary -- that is, it is up to each diocese to decide whether to accept or reject them. A confederation is based on a contract among its members. The contract is renewed every time the members agree upon something in accordance with their governing rules. As is the case with every contract, changes to it need the consent of all parties. Since the governing agreements do not include a Supremacy Clause, the result is that a party who does not consent to a change cannot be bound by it.

"If a diocese elects not to adopt the Title IV revisions, there is nothing that General Convention, or the Presiding Bishop, or the staff at 815 Second Avenue, can do about it. The changes to Title IV will simply have no effect in that particular diocese. Again, this is a consequence of two factors: ECUSA's Constitution has no Supremacy Clause, and ECUSA has never established a constitutional court with final authority to interpret the Constitution."

Haley further argues that to speak of the "constitutionality" or "unconstitutionality" of the changes as a whole distorts the real picture. "The changes may indeed be 'unconstitutional', from any particular diocese's standpoint -- but it is up to each individual diocese to make that decision. And in doing so, that particular diocese is SOVEREIGN -- there is no authority within ECUSA that can force it to accept the changes against its will, or override its decision not to accept them.

"I regard the fact that the eight-page memorandum from the Title IV Task Force II nowhere acknowledges these basic principles as a fundamental, and fatal, flaw in its overall reasoning. The memorandum, indeed, proceeds from a point of view, which holds that whatever its authors and the staff at 815 decide that General Convention approved in 2009, is thereby ipso facto 'final' and 'binding' on the collective dioceses. (See the Fourth Proposition above for a refutation of this view.)

"Unless and until the truth of the foregoing four propositions is recognized, there can be no real common ground in discussing the propriety of the changes made to Title IV. Those on the left, like the Title IV Task Forces I and II, will think that they are justified in proceeding under the new canons to discipline and sanction those clergy who disagree with them. But those who disagree must take heart in the undeniable facts about how ECUSA came into being, and what exactly is the consequent authority of General Convention.

"The moment a diocesan bishop rejects the Directive as being unconstitutional, there will be a confrontation in which one party -- either the Presiding Bishop or the bishop of the diocese -- will have to back down. If the Presiding Bishop proceeds to exercise her new disciplinary powers, leading to her signing a certificate of inhibition, and then asking the House of Bishops to depose the recalcitrant bishop, civil war could erupt in the halls of the Church", writes Haley.

"We could end up with a further splintering of factions -- with two persons claiming authority to act as the bishop of a given diocese (one of them installed 'provisionally' by the Presiding Bishop and the other contending that s/he had not been legitimately deposed)."

Alternatively, a diocese could vote itself to pull out of The Episcopal Church with consequences similar to those of the four dioceses which have already withdrawn from TEC.

One wonders how long the HOB will tolerate seeing their numbers decrease while inhibitions and depositions increase and continuing litigation slowly empties the church's coffers as budgets are trimmed and the church's governance and structures prove inadequate in the 21st Century.

The die has been cast.

END