IN THE COURT FOR THE TRIAL OF A BISHOP
James M. Stanton, Bishop of Dallas, et al.,) ) Presenters, ) ) v. ) ) The Rt. Rev. Walter C. Righter, ) ) Respondent. )The Opinion of the Court in which Edward W. Jones, Bishop of Indianapolis, Robert C. Johnson, Jr., Bishop of North Carolina, Donis D. Patterson, Bishop of Dallas (retired), Cabell Tennis, Bishop of Delaware, Douglas E. Theuner, Bishop of New Hampshire, Arthur E. Walmsley, Bishop of Connecticut (retired), and Roger J. White, Bishop of Milwaukee join:
The Court today is not giving an opinion on the morality of same gender relationships. We are not deciding whether life-long, committed, same gender sexual relationships are or are not a wholesome example with respect to ordination vows. We are not rendering an opinion on whether a bishop and diocese should or should not ordain persons living in same gender sexual relationships. Rather, we are deciding the narrow issue of whether or not under Title IV a bishop is restrained from ordaining persons living in committed same gender sexual relationships. The conclusions reached in our opinion are based upon our understanding of the Core Doctrine of this Church; how this is related to traditional teaching; the ordering of the Church■s discipline; and the authority of General Convention and House of Bishops resolutions. The Court includes within its opinion pastoral concerns which confront the Church as it continues to face difficult and important issues.
This case arises by the presentment of James M. Stanton, Bishop of Dallas, Stephen H. Jecko, Bishop of Florida, John-David Schofield, Bishop of San Joaquin, John W. Howe, Bishop of Central Florida, Maurice M. Benitez, Bishop of Texas, William C. Wantland, Bishop of Eau Claire, Jack L. Iker, Bishop of Fort Worth, Keith L. Ackerman, Bishop of Quincy, James M. Coleman, Bishop of West Tennessee, and Terence Kelshaw, Bishop of Rio Grande, Presenters.
In the Presentment, it is alleged that Walter C. Righter, retired Bishop of Iowa, the Respondent in this matter, on September 18, 1990, at a meeting of the House of Bishops in Washington, D.C., voted against Resolution B-1a. This resolution affirmed the February 1990 statement of the Presiding Bishop and Council of Advice disassociating from the ordination by John S. Spong, the Bishop of Newark, of Robert Williams, a homosexual person living in a public avowed relationship with a person of the same sex. (Presentment, para. VII, p. 5; see Resolution B-1a, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1991], 499-501, set forth in the Appendix at A1-3; Statement of the Presiding Bishop and Council of Advice, February 20, 1990, set forth in the Appendix at A4-5). Further it is alleged that Respondent joined in signing 'A Statement of Koinonia,' which states that 'a wholesome example to the flock of Christ does not exclude a person of homosexual orientation nor does it exclude those homosexual persons who choose to live out their sexual orientation in a partnership that is marked by faithfulness and life-giving holiness.' (Presentment, para. VIII, p. 6; see 'A Statement in Koinonia,' August 25, 1994, set forth in the Appendix at A6-8). It is further alleged that on September 30, 1990, Respondent ordained to the diaconate Barry L. Stopfel knowing that he was a practicing homosexual, living in a sexual partnership with a person of the same sex prior to ordination and intending to continue in that relationship after ordination. (Presentment, para. VIII, p. 5).
Count 1 of the Presentment alleges that Respondent is in violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) for teaching a doctrine contrary to that held by this Church. (Presentment, para. X, pp. 6-7; see Canon IV.1.1(2)  and Canon IV.1.1(c) , set forth in the Appendix at A9). However, Count I does not specify which of Respondent's actions constitute the allegedly impermissible teaching.
In Count 2, Respondent is charged with violation of Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ) for violating his ordination vows to 'conform to the Doctrine . . . of the . . . Church' for his ordination of a practicing homosexual to the diaconate. (Presentment, para. X, p. 7; see Canon IV.1.1(6)  and Canon IV.1.1(h) , set forth in the Appendix at A9).
The Presentment and Brief in Support of Presentment was forwarded to the Presiding Bishop by the Presenters on January 27, 1995. Respondent filed his Answer and Brief in Support of Answer on May 10, 1995. Respondent did not contest any of the facts alleged but denied that they constitute an offense under the Constitution and Canons of the Church. (See Answer to Presentment, para. 1-7). Thereafter the Presiding Bishop forwarded all of those materials to each bishop pursuant to Canon IV.4.2 (1994) (cf. Canon IV.3.22 ). Within the required time, at least one-fourth of the bishops consented to the trial of the case and the matter was referred to this Court.
In a pre-trial hearing held on December 8, 1995, in Hartford, Connecticut, the Presenters and Respondent agreed that the basic issue in this case is the doctrine of the Episcopal Church. The Court gave permission to the parties to submit a paper and cite additional published resources that would guide the Court in deciding the question: 'What does and does not constitute the doctrine of the Church, particularly as it is binding on what a bishop may or may not teach?' (Memorandum and Order of the Court, January 10, 1996). The submissions were made and the question of doctrine was the focus of the arguments before the Court in the first session of the trial held in Wilmington, Delaware, on February 27, 1996. The Court has given careful consideration to these arguments, the submissions offered by the parties, the published resources submitted and cited by them, and the Court's own understanding of doctrine in the Anglican tradition as bishops of the Episcopal Church entrusted with the doctrine and teaching of the Church.
A. The Scope of Doctrine in Relationship to the Church's Teaching and Discipline
In the case before us the Presenters have argued by submissions and oral argument that doctrine includes the Church's teaching as well as its Creeds. In their view, all doctrinal teaching comes under the weighty purview of Title IV especially Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) for 'holding and teaching publicly or privately and advisedly any doctrine contrary to that held by the Church.' The Court finds that this is overreaching the Anglican understanding of doctrine. We are not a confessional church which has carefully articulated and identified the entire scope of its teaching and the disciplinary consequences for the violation of its teaching. The Court is bound not to extend this Church in that direction without explicit authority from General Convention of the Church, which is the Church acting corporately.
On the other hand, Respondent makes a sharp distinction between doctrine and discipline. Respondent relies heavily on the close reasoning of the Preface of the Book of Common Prayer which states:
. . . that in his worship different forms and usages may without offense be allowed, provided the substance of the Faith be kept entire; and that in every church what cannot be clearly determined to belong to Doctrine must be referred to Discipline; and therefore by common consent and authority, may be altered, abridged, enlarged, amended, or otherwise disposed of, as may seem most convenient for the edification of the people, 'according to the various exigency of times and occasions.'(Book of Common Prayer, 9). Standing alone this language would seem to deny the force of doctrine to anything other than creedal formations. Indeed Respondent argues that doctrine is limited to statements about God and not about human relationships. (Transcript of the Record, February 27, 1996, 131, 134-35). Making this sharp distinction ignores the broader context of Anglican thought and practice.
The Court is guided by what we understand to be a broader Anglican tradition. In doing so, we follow a more flexible course. We hold that doctrine involves more than creedal affirmations, and that it involves a spectrum which includes not only faith and belief, but morals and practice. In affirming this, the Court understands that the issue before us is not a general definition of doctrine and its scope, but rather the question of what doctrine is protected by Title IV.
B. Core Doctrine
Within Anglicanism there is a long tradition of appeal to fundamental doctrine as supplying a basis for reckoning a Church to be a true Church. This 'Core Doctrine' of the Church arises out of the Gospel itself, and is rooted and grounded in Holy Scripture. It is the story of God's relationship to God's people, and has been entrusted to the Church as the people of God, the bearers of God's mission to 'restore all people to unity with God and each other in Christ.' (See 'An Outline of the Faith commonly called the Catechism,' Book of Common Prayer, 855).
The Court holds to the ancient distinction between the Core Doctrine which is derived from the Gospel preaching, kerygma, and the Church's teaching, didache, of those things necessary for our life in community and the world. The kerygma is found in the life and teaching of Jesus and the preaching and evangelistic action of the Church revealed in the New Testament and other early Christian documents. Sound and trustworthy biblical scholarship has identified the basic contents of the kerygma. See, for example, C.H. Dodd, The Apostolic Preaching (New York and London: Harper & Bros., 1936). They are:
C. Where is Core Doctrine to be Found?
Anglicans have important grounds for viewing the Chicago-Lambeth Quadrilateral of 1886, 1888 (see Book of Common Prayer, 876) as a reflection of this understanding of Core Doctrine, one which sets forth what we hold as essential to the restoration of the unity of the Church. This Quadrilateral describes not only articles of belief but a way of life. The use of scripture and the creeds in worship, the centrality of the dominical sacraments of Holy Baptism and the Eucharist, and the practice of episcopal government represent elements which seek to ensure the transmission of orthodox apostolic doctrine, not solely to propound it. We are guided by the Anglican understanding of lex orandi, lex credendi, (the law of prayer, the law of faith). Worship, when faithful to Holy Scripture, expresses the kerygma as the living dwelling place of the Church's Core Doctrine. It is this tradition of 'continu[ing] in the apostles' teaching and fellowship' which we pledge to continue in the Baptismal Covenant. (See ibid., 304).
It is this Core Doctrine, and not the broad definition urged by the dissent, which is protected by the Canons of the Church, particularly Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) which we have before us today. Teaching contrary to this Core Doctrine is constrained by this Canon. This understanding of the doctrine of the Church, protected by canon law, is consistent with the holding of the Court of Review in In the Matter of the Presentment of Bishop William Montgomery Brown, Decision and Opinion, Court for the Review of the Trial of a Bishop, January 15, 1925, 15-18, affirmed by Opinion and Decision, Court of Review for the Trail of a Bishop, 1925, Archives of the Episcopal Church (hereinafter 'Bishop Brown Case'). Among other things, the Court of Review affirmed the holding of the trial court that:
The doctrine of this Church is fixed by the whole Church, acting in its corporate capacity, and not by the individual opinions or interpretations placed upon any documents supposed to contain the Church's doctrine, by any bishop, priest or deacon speaking individually . . . .(Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, May 29, 1924, Archives of the Episcopal Church, 133-34). This Court reaffirms the decision of Bishop Brown Case in holding that the 'doctrine of the Church' as the term 'doctrine' is used in Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) and Article VIII of the Constitution, is the Core Doctrine as set forth by the court in the Bishop Brown Case. We agree with and reaffirm the holding in the Bishop Brown Case that this doctrine is not found but rather is grounded in Holy Scripture. Holy Scripture is the story of our relationship to God. It is not at heart a rule book of doctrine or discipline. It is the foundation on which and by which all doctrine and tradition are to be tested.
The question has been asked by counsel as to where the doctrine of the Church is to be found. In reply the Court expresses its opinion that such doctrine is to be found in the Book of Common Prayer as adopted and established by the Constitution of the Protestant Episcopal Church in the United States of America. It is perhaps superfluous to state that the most important formularies of doctrine are the Apostles' and the Nicene Creeds.
It is a matter of common knowledge that the doctrine of the Church is not formulated in the Holy Scriptures, but is in all cases to be supported by the Holy Scriptures as interpreted by the Church in its corporate capacity.
D. Theology is Different From Doctrine
We also agree with the holding of the Bishop Brown Case that doctrine in the Anglican sense is to be established by the whole Church acting in its corporate capacity. Doctrine is not to be confused with 'theology' which is prayerful reflection on scripture and Core Doctrine in the light of the Christian experience. While such reflection has helped to form doctrine, theology may also offer diverse understandings of Holy Scripture and doctrine. It is a reflection upon and guidance for Christian life and practice. The Anglican tradition has encouraged theological diversity and supports faithful exploration in developing theology rather than a confessional definition. Nevertheless, all theology is in the end to be subordinated to the Core Doctrine of the Church's faith.
E. Count One Dismissed
Accordingly, the Court holds that the protection afforded by the disciplinary canons of Title IV to matters of doctrine is limited to what we describe as Core Doctrine. The Court finds that there is no Core Doctrine prohibiting the ordination of a non-celibate, homosexual person living in a faithful and committed sexual relationship with a person of the same sex and therefore the Court dismisses Count 1., ,
A. Respondent's Motions Regarding Count 2
The Court has decided it has full jurisdiction of all issues encompassed in Count 2. The discussion of the Court's decision on the issues raised regarding its jurisdiction of Court 2 is set forth at pages 21 to 26 below.
B. Traditional Teaching
Alongside the Core Doctrine through the ages has stood the Church's teaching, the didache. Various sources, including documents submitted to the Court, call this teaching 'doctrine,' 'doctrinal teaching,' and 'traditional teaching.' The terms are frequently used interchangeably. For instance, we speak of the Church's 'doctrine of marriage;' sometimes this 'doctrine' is referred to as the Church's 'traditional teaching.' In every instance, it is intended by the Church to be an expression of the contours by which faithful Christian marriage is to be lived. As another example, we speak of the 'just war doctrine' in attempting to offer ethical and moral standards to guide us in deciding whether or not to go to war. Doctrinal teachings as illustrated by these examples are used by the Church to guide its members in living the faith day by day in the Church and the world. Doctrinal teachings, grounded in Holy Scripture, seek to interpret the Holy Scripture, the Core Doctrine described above, and the Church's tradition, that the people of God may understand and faithfully live out the mission entrusted to us. As the dissent points out, there are other examples of teachings that are referred to as 'doctrine' such as the 'doctrine of episcopal collegiality.'
Doctrinal teachings are of vital importance for the life of the Church. They are the deposit of the Church's tradition from age to age, understood and expounded by the gift of reason which integrates the lived experience of the people of God in particular times and places, under the guidance of the Holy Spirit. 'Doctrine' in this sense consists of 'communally authoritative teachings regarding belief and practice that are considered essential to the identity and welfare of the group in question.'
Traditional teachings give guidance to the Church and focus its life and that of its members. They contain the patterns of interpretation and ethics that guide us amid the challenges and decisions that pull and tug at the disciples of Jesus the Christ. The history of Anglicanism has from the sixteenth century to the present been marked by an effort to understand the relation between traditional teaching and the demands of life within changing social, political, and theological understandings and realities.
It is significant that both Presenters and Respondent have sought support for their position in the Laws of Ecclesiastical Polity of Richard Hooker (1554-1600), a work which has shaped Anglican theology to the present. (Cambridge: Harvard University Press, Folger Library Edition of The Works of Richard Hooker, 1977-1993). Hooker is at pains, in the controversies with Puritan elements in England, to shape and defend a church polity within which there is a unity of vision linking scripture, tradition, and reason. No church polity is good, he argues, unless God is its author. But God is present as author either by light of the scripture itself, or by the natural light of reason guided by the Holy Spirit. Although scripture is the source of many laws, there are 'laws for the Polity of the Church [which] may be made by the advice of men . . . those Laws being not repugnant to the Word of God are approved by his sight.' Thus, there are matters for which the scripture hath not provided by any law, but left them unto the carefull discretion of the Church: . . . and what is so in these case, partly scripture and partly reason must teach to discern. (Ibid., vol. III, intro. and ch. ix. 1.). For our purposes, it is enough to note that Hooker's effort at comprehensivness has shaped a tradition extending through such figures as Frederick Denison Maurice and Charles Gore in the last century, and William Temple and Michael Ramsey in our own. In From Gore to Temple: The Development of Anglican Theology between Lux Mundi and the Second World War (London: Lonmans, 1960), 27, Ramsey wrote:
There is . . . a distinctive witness still to be borne by Anglican theology out of the depths of its own tradition. . . . There is here a task that Anglican theology can yet perform, by keeping alive the importance of history in the manner of its great divines of the past, by strenuous attempts to relate Biblical revelation to other categories of thought in the contemporary world, by striving to integrate dogma with spirituality in the life of prayer, by presenting the Church as the effectual sign of the supernatural in the midst of the natural order.
The Court understands that doctrinal teaching in the broad sense includes belief, practice, faith, and morals. Stability of doctrinal teaching is important for the order and unity of the Church. Nevertheless, the context in which we live, worship and carry out our ministry does change. As the context changes, the Church's teaching may also change in order to guide us in living the Christian life as we face new circumstances and understandings. Changes in doctrinal teaching must always seek to be in conformity and obedience to the Core Doctrine as interpreted by the Church in its corporate capacity.
C. Changes in Doctrinal Teaching
The Court notes that development and change in the Church's doctrinal teaching has occurred in various aspects of the Church's life. For example, for most of its history the Church understood slavery as normative in society and acceptable within Christian life and practice. Gradually, we have come to accept that the enslavement of human beings violates the Gospel's gift of freedom and dignity to every human being. The continuing struggle to understand and overcome the effects of racism in contemporary culture indicates that this work has not yet been completed, nor have we fully grasped its implications for faith and morals.
Similarly, the Church for generations also interpreted New Testament passages on divorce and remarriage as a fixed and unchangeable law which prohibited remarriage in the Church after divorce. We have come to see and understand that marriages can die and even be places of destruction which may justify their termination. Furthermore, as the Episcopal Church now recognizes, remarriage in the light of the Gospel can be a new beginning grounded upon God's forgiveness and reconciliation. Again, as revisions in the Book of Common Prayer make clear, the Church has changed its teaching on the emphasis placed on the several purposes of marriage. With a dramatic decline in infant mortality, greatly extended life expectancy, and a worldwide population explosion, the focus on procreation of children has been subsumed in many places by a heightened emphasis on marriage as a union of husband and wife for their mutual joy and support. This shift has been accompanied by a strong acceptance of family planning and the use of contraception, views strongly resisted within the Anglican communion a generation earlier.
This reshaping of the doctrinal teaching of the Church in the face of new historical contexts and in the light of reason and faithful reflection on experiences was at the heart of the Report of the Advisory Committee of the Episcopal Church chaired by Bishop Stephen F. Bayne, Jr.. (See 'Report of the Advisory Committee on Theological Freedom and Social Responsibilities,' reprinted in Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1967], app. 6 [hereinafter 'Bayne Committee Report']). The Bayne Committee Report was a response from within the House of Bishops to the controversial teachings of Bishop James A. Pike. The summary from that report provides sound guidance for the Church of this day as well (with apologies for the report's use of gender, itself a note of contextual change):
God makes men free. It does not behoove His Church to try to hobble their minds or inhibit their search for new insights into truth. The Church not only should tolerate, but should actively encourage, free and vigorous theological debate, application of the Gospel to social wrongs, re- statement of Christian doctrines to make them more intelligible to contemporary minds, and experimentation with new forms of worship and service. Any risks the Church may run by fostering a climate of genuine freedom are minor compared to the dangers it surely will encounter from any attempts at suppression, censorship or thought-control. The Church can command the respect of modern man only if it has the confidence, courage, and honesty to test its faith in the free-market place of ideas. We believe that the historic Christian faith can stand that test, and are not afraid to have it subjected to the most searching scrutiny. To that end, we recommend the establishment of institutes and seminars and provisions for new training which will enable laymen and clergymen to participate more positively in theological discourse. We recommend a new design for meetings of the Bishops to give more opportunity for theological discussion. We recommend the formation of a Standing Commission on the Teaching of the Church.(Ibid., app. 6.23-6.24).
While we affirm the right of every man to choose what he will believe without any kind of coercion whatever, we also assert the right of the Church to maintain its distinctive identity and continuity as a community of faith centered around the historic revelation of God in Christ. Although we certainly do not uphold a narrow verbal orthodoxy which requires a person to give literal assent to some particular formulation of doctrine, we do believe that if an individual finds himself unable, in good conscience, to identify with the living tradition of the Church, reflected in the Bible, the Creeds, and, especially for Anglicans, in the liturgy of the Book of Common Prayer, he should as a matter of personal integrity voluntarily remove himself from any position in which he may be taken to be an official spokesman for the whole community.
Without censuring or condemning any individual for his ideas, the Church may find it necessary, on occasion, to dis-associate itself publicly from theological views which it considers to be seriously subversive of essential Christian truths. But this should be done in a positive and constructive way, and with scrupulous fairness to those concerned, by explaining what the Church does believe. The best answer to bad doctrine is good doctrine. 'Heresy trials' are anachronistic. Although the Church may feel that it must maintain a last-resort power to deal juridically with Bishops or priests who publicly engage in persistent and flagrant contradiction of its essential witness, we strongly recommend that initiation of this process be made extremely difficult. To that end, we propose a drastic revision of canon law, to insure that no charge of deviant teaching may be put forward by only three bishops, and that no such charge may proceed to the stage of a formal trial without the advance concurrence of two-thirds of the House of Bishops.
We do not believe that there are many who willfully set out to destroy the Christian community. We are prepared to say that there are many ideas and speculations which fail to do justice to the acts by which God gave us the Church in the beginning. We agree that it is essential that the Church make its own judgments as to those ideas and speculations. But, in all this, we pray that the Church may not act as less than what it is -- the community of those who know, have accepted, and mean to show, the love of God and His supporting grace for all who mean to bear honest witness for Him.
D. Tensions in the Teaching on Sexuality
The Court recognizes that while this Church has reaffirmed traditional teaching concerning human sexuality in various Resolutions of General Convention (see Resolution A-53s, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], C-89 to C-93; partially set forth in the Appendix at A14; Resolution A-104sa, Journal of the General Convention of . . . Episcopal Church [New York: General Convention, 1991], 746, set forth in the Appendix at A15), this teaching is being tested by what some believe are new understandings about human sexuality, especially homosexuality. These developments place vexing questions before the people of the Church. Some wish to hold very firmly to traditional teaching and resist its reinterpretation, especially to the ordination of persons to the sacred ministry of the Church who are openly living in same sex relationships. At the same time there are voices in the Church who would expand the traditional teaching concerning Christian marriage to include persons living in life-long, committed, same sex relationships and develop ethical understandings which embody Christian values of faithfulness, compassion, love and forgiveness in those relationships. Times such as these call upon the people of the Church, in the spirit of the Bayne Committee Report, to be 'the community of those who know, have accepted, and mean to show the love of God and His supporting grace for all who mean to bear honest witness for Him.'
E. Ordering the Church by Discipline
Some doctrinal teachings of the Church have been found to be so important to the ordering of the life of the Church that they have been made mandatory, with disciplinary consequences defined in canon law for failure to conform. Some of these understandings, as for example what constitutes eligibility for ordination, are incorporated in the constraints found in Title III of the Canons concerning age, gender, and prior ordination, and which are binding upon bishops, standing committees, commissions on ministry, vestries and presbyters. No such written constraint is contained in the Canons that forbids the ordination of persons because of homosexuality, in orientation or in practice. In light of the controversy concerning the Church's teachings about homosexuality over the past decade and a half, it is significant that no Canon, positive or negative, has been passed by General Convention with respect to such ordinations. We do not find a constraint in the Canons that proscribes Respondent's action as charged in Count 2.
Although it is clear that the Constitution and Canons are part of the 'discipline' of the Church, as are their diocesan counterparts, there is very little, if any, guidance or precedent of what constitutes disciplinary authority which is binding on bishops. The Court recognizes that some traditional or doctrinal teachings are likely enforceable under Title IV as disciplinary authority even though not explicitly incorporated in the Canons. It is possible that where a traditional or doctrinal teaching has not been seriously questioned or challenged, it may be enforceable under Title IV in the absence of a canon or resolution purporting to state or establish the teaching and its disciplinary authority. While the Court affirms that the act of ordaining a person who is practicing immorality, such as adultery, theft, or assault is itself immoral and subject to the discipline of the Church, this accountability does not obtain unless the moral teaching is expressed by the full and clear authority of the Church. We do not find that full and clear expression at this time and in this case. When, as in this case, a traditional teaching has been subjected to lengthy, serious, and widespread questioning and challenge, the Court believes that the authority to hold persons liable for presentment and trial for violation of a traditional teaching must be full and clear.
F. Is the General Convention Resolution of 1979 Binding?
Presenters argue that resolutions of General Convention constitute just such full and clear authority. The Presenters point to Resolution A-53s, Journal of the General Convention of the . . . Episcopal Church (New York: General Convention, 1979), C-89 to C-93, adopted in 1979, which expressly reaffirms the traditional teaching of the Church and states: 'we believe it is not appropriate for this Church to ordain a practicing homosexual or any person who is engaged in heterosexual relationships outside of marriage.' It was this resolution that the Presiding Bishop and the Council of Advice cited in a statement of disassociation in response to the ordination of a non-celibate homosexual person in the Diocese of Newark. (See Statement by the Presiding Bishop and Council of Advice, February 20, 1990). Furthermore, this statement was affirmed and supported by the House of Bishops meeting in Washington, D.C. on September 18, 1990. (See Resolution B-1a, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1991], 499-501). Presenters urge that Resolution A-53s and its subsequent reaffirmations are a part of the mandatory teaching of the Church to which Respondent must be held accountable. We disagree. We hold that Resolution A- 53s is not binding on its own terms. It contains within itself advisory language. The second resolve is 'that this General Convention recommend to Bishops, Pastors, Vestries, Commissions on Ministry and Standing Committees, the following considerations as they continue to exercise their proper canonical functions in the selection and approval of persons for ordination.' (See Resolution A-53s, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], C-89 to C-93 [emphasis added]). Resolution A-53s is clearly recommendatory and therefore not binding on the members of this Church for the purpose of canonical discipline under Title IV. This is not to say that Resolution A-53s does not hold up traditional teachings of the Church which should be respected and taught as guides for Christian living even when under serious discussion and proposed reinterpretation. We agree that it does. Yet it does not set forth a clear constraint which allows canonical disciplinary action. The Church may forbid what has been done here, but not by a recommendatory resolution.
G. When are Resolutions Binding in Discipline?
Presenters refer to several actions of the House of Bishops and General Convention for support of their argument that the Episcopal Church has a doctrine or discipline forbidding the ordination of non-celibate homosexual persons. They include:
The only Resolution resulting from the corporate action of the Church acting in General Convention is Resolution A-53s which we have previously held as recommendatory only. The Court holds that only General Convention can establish the doctrine of the Episcopal Church or delineate its discipline and even so it may not change the Core Doctrine of the Church.
While there have been repeated reaffirmations of the traditional teaching concerning human sexuality, especially the practice of celibacy outside of marriage (see Resolution A-53s, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], C-89 to C-93; Resolution A-104sa, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1991], 746), at the same time other resolutions have been introduced at General Convention seeking to change as well as to relate the traditional teaching to blessing same sex relationships, ordination and discipline. Some have passed, others have failed to pass. We conclude that at this time the Church, in spite of its reaffirmations of traditional teaching, is in a period of indecision with respect to its moral doctrine concerning same gender relationships and we do not find sufficient clarity in the Church's teaching at the present time concerning the morality of same sex relationships to hold that ordination of a non-celibate homosexual person violates a bishop's ordination vow to uphold the 'discipline' of the Church.
H. Count Two Dismissed
We hold that for a violation of a doctrinal or traditional teaching to be 'an act which involves a violation of ordination vows,' under Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ), the proscribed act must have been so specified by the full and unequivocal authority of General Convention.
Having taken jurisdiction over all matters relating to Count 2, including the question of discipline, the Court dismisses Count 2 because there is no discipline of the Church prohibiting the ordination of a non-celibate homosexual person living in a committed relationship with a person of the same sex, violation of which would constitute a violation of Respondent's ordination vows under Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ).
The Court believes that having given a judgment on these matters we would not fulfill our full responsibility without speaking a pastoral word to the Church, the baptized in Christ Jesus who are bound together in the community of faith.The issues we have dealt with in these proceedings have proven to be quite controversial in our Church in recent years, and in other denominations and religious bodies as well as in society-at- large. We recognize that there are sharp disagreements among theologians and ethicists in this matter. In part this is true because there are devout and caring Christians who have different understandings about these matters. There is probably an even greater number of disciples who do not like controversy about them even while they are struggling to know what is right and good. We note in this regard that some of the differences among us do seem to reflect different cultural contexts. This in itself raises the question as to whether all Christian moral teaching, as distinguished from Core Doctrine, should be regarded as universal, or whether some aspects of it may be shaped by the contexts in which decisions must be made, as, for example, in a cosmopolitan urban area or a sparsely-settled rural one.
Reflection, prayer, discussion and debate regarding the issues also take place in a context in which there is much brokenness and confusion about sexuality. Indeed, all the reasons we are sexual beings are not fully comprehended and, while our sexual expression can be a gift of God and a great source of blessing and mutual love, the power of its drive, linked with many human insecurities, can also be used sinfully, dangerously and in ways that do not enhance life and love. The Church has a great responsibility, most particularly to its members, to teach of these dangers, but also to offer wisdom and guidance with regard to faithful, ethical and holy living in matters involving our sexuality as in all important areas of life. It does not appear to us, however, that this part of the One, Holy, Catholic, and Apostolic Church will find it at all easy fully to resolve and reconcile some of the questions involving right living for our gay and lesbian brothers and sisters in the years immediately ahead. Even more legislation will not necessarily accomplish this. It will likely take time for new understanding to be fully received or for older understanding to reestablish itself everywhere. If this Court has erred, it would point to Article XXVI of the Articles of Religion (1801) which states:
XXVI. Of the Unworthiness of the Ministers, which hinders not the effect of the Sacraments.
Although in the visible Church the evil be ever mingled with the good, and sometimes the evil have chief authority in the Ministration of the Word and Sacraments, yet forasmuch as they do not the same in their own name, but in Christ's, and do minister by his commission and authority, we may use their Ministry, both in hearing the Word of God, and in receiving the Sacraments. Neither is the effect of Christ's ordinance taken away by their wickedness, nor the grace of God's gifts diminished from such as by faith, and rightly, do receive the Sacraments ministered unto them; which be effectual, because of Christ's institution and promise, although they be ministered by evil men.
While engaged in such prayerful reflection and teaching, and while living and serving in the ways of justice, compassion and peace as the best disciples of Jesus we can be, it will always remain important to keep eye and heart trained on the essentials of faithful belief and life, recognizing that we may not agree on all else, even while we may regard other matters to be of great importance. While we seek to do this worship and serving, our witness to the world may depend much more on our love for one another and all our neighbors than on any final resolution of our other concerns. Such may well matter more to God, and, as Jesus teaches us, be what is necessary above all for our unity.
The Court believes that on many matters having to do with human sexuality, the Episcopal Church is of one mind. Thus, it would be difficult to find those who would defend adultery. Similarly, by resolution and sometimes by disciplinary action, the Church has left little doubt that sexually promiscuous, predatory and abusive behavior are wrong.
One place where the Church is not of one mind has to do with homosexuality and, more particularly, with the propriety of ordaining homosexual persons who are living in faithful and committed sexual relationships. Some members of the Church believe that homosexual relationships, even when faithful and committed, are not 'a wholesome example to the flock of Christ.' On the other hand, there are equally sincere members who believe that God is challenging the Church to reassess traditional views concerning homosexuality. Since devoted members of the Church hold such differing opinions, the Court believes that on both sides of the issue there must be mutual respect and understanding.
Since devoted members of this Church hold such deeply differing opinions, we believe that this is not the time to take hard positions on moral teachings either to reaffirm traditional teaching and close any consideration of change or to press and act for radical changes without the action of the whole Church acting in its corporate capacity. Rather, this is a time for patient listening and holy discernment. This is a time for faithfully maintaining the Church as a community. This is not a time for taking each other to trial but rather a time for taking each other to God in prayer.
The Court is sensitive to those who seek greater clarity of the issues. The Court would remind the Church that there are ways we could order our life less ambiguously. General Convention has authority to pass Canons which are binding, and could, perhaps, adopt resolutions which clearly declare themselves to be mandatory, and which call for specific penalties when they are disobeyed. We remind the Church that this issue will not be resolved and the Church unified in its faith and practice by presentments and trials, nor by unilateral acts of bishops and their dioceses, or through the adoption of proclamations by groups of bishops or others expressing positions on the issues.
The Court is aware, especially in consideration of the Bayne Committee Report, that we would be wise to develop other means of insuring our good order than the use of presentment and trial. A trial is not only a poor way to clarify doctrine, it also is at the personal expense of a respondent who in most instances, as here, is not acting alone, but with the collaboration and participation of many others.
In the course of its deliberations, the Court has been deeply mindful of the issues of accountability which involve bishops, in respect to their personal lives, their ecclesiastical responsibilities, and their calling to be faithful pastors and teachers. The Court believes that the House of Bishops has an urgent responsibility to develop processes to secure its own good order and engage in the oversight of its members across a wide spectrum of ecclesiastical and personal conduct. Any canonical changes this might entail need to be developed in accord with General Convention.
Finally, the Court is aware that this decision may be difficult for members of other Christian communions. This is especially so if they believe that we are deciding here whether or not the Church should ordain persons living in same sex relationships. In ecumenical charity, we ask them to understand that this opinion speaks only to the narrow issue of whether there is a constraint within the life of this Church that prohibits a bishop from so acting and which is enforceable under the Church's disciplinary Canons. We trust that with equal charity other Christians will see that the Episcopal Church continues to hold faithfully to the Core Doctrine of the Christian faith, which is the common treasure of the universal Church and necessary for salvation.
A number of other motions are pending before the Court and it will discuss those here.
A. Presenters' Motion for Declaratory Judgment and Partial Summary Judgment as to
Count 1 and Count 2 of the Presentment.
On December 28, 1995, the Presenters filed the above entitled motion on their own initiative. They renewed this motion on March 29, 1996 and filed a Praecipe in support thereof. The motion requested the Court to declare that the Episcopal Church has a doctrine which makes it inappropriate for a bishop to ordain a non-celibate practicing homosexual person and requested that the Court grant partial summary judgment against Respondent by finding that a bishop is liable for holding or teaching that it is appropriate to ordain a non-celibate practicing homosexual person.
The Court's finding on doctrine discussed above disposes of the issues raised by Presenters in this motion and it is, therefore, denied.
B. Presenters' Motion to Disqualify an Additional Member of the Court.
On February 22, 1996, Presenters filed the above entitled motion seeking to have Bishop Frederick H. Borsch disqualified as a member of the Court. Presenters alleged that Bishop Borsch consented to the ordination of a non-celibate homosexual person by the Suffragan Bishop of Los Angeles on January 13, 1996. Bishop Borsch recused himself from voting on matters which the Court has considered since the hearing in Wilmington, Delaware on February 27, 1996, and from participation in this matter since April 17, 1996. Therefore, Presenters' motion is moot.
C. Presenters' Objection to Respondent's Filing of Affidavits of Bishops De Bene Esse and Motion to Seal the Same.
At the close of the hearing in Wilmington, Delaware on February 27, 1996, Respondent provided to the Court a document entitled Affidavits of Bishops De Bene Esse. On February 28, 1996, the Presenters filed the above entitled motion requesting that the Court seal the Affidavits so that they could not be considered by the Court in its present deliberations. The Court did not consider the Affidavits in its deliberations and they do not form the basis or support for any portion of its decisions and opinions herein. The Presenters' motion is, therefore, granted.
D. Presenters' Motion for Summary Judgment and Other Relief as to Count 2 of the Presentment.
The Presenters filed the above entitled motion on March 29, 1996, asking the Court to declare that the ordination of a non-celibate homosexual person constitutes a violation of the Church's discipline by the ordaining bishop and thus a violation of Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ) as an act in violation of ordination vows and, on that basis, to grant summary judgment on Count 2 against Respondent. Respondent objected to the motion on three grounds. The first objection was that the 1996 Canons did not incorporate the portion of the Federal Rules of Civil Procedure governing summary judgment, and, therefore, the Court cannot entertain motions for summary judgment, particularly from the Presenters. The Court has the inherent authority to decide the case, or issues in the case, by making a 'summary judgment' whether or not a specific procedural rule exists for that purpose. Respondent's second objection was that the Presenters did not have standing to file a presentment alleging a violation of Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ) for a violation of ordination vows because the proper canonical procedure was not followed. That issue is thoroughly discussed and resolved below against Respondent. Respondent's third objection was that Count 2 does not allege a violation of ordination vows for failure to conform to the Church's 'discipline' and that Presenters had argued previously that if there was no doctrine applicable to this case, there would be no basis for finding Respondent guilty. The Court, as discussed elsewhere, is not bound by the parties' interpretation of what is or is not dispositive of the case.
On the basis of the lengthy discussion above on the Church's discipline and the dismissal of Count 2, Presenters' Motion for Summary Judgment and Other Relief as to Count 2 of the Presentment is denied.
E. Respondent's Motions Regarding Count 2.
Prior to the pretrial conference in Hartford, Connecticut on December 8, 1995, Respondent filed a Motion to Sever and Stay Count 2 of the Presentment. The parties briefed that motion and argued it to the Court in Hartford. On March 1, 1996, the Court entered its Order denying Respondent's Motion to Sever and Stay Count 2 and indicated that a memorandum regarding that Order would be issued at a later date. Respondent then filed a Motion to Dismiss Count 2 on the grounds that the Court lacks jurisdiction of Count 2 because the proper canonical procedure for a presentment for other than a violation of holding and teaching doctrine contrary to that held by the Church was not followed. This opinion will serve as the Court's memorandum on both motions.
The Court notes that Count 1, a violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) for 'holding and teaching publicly or privately and advisedly any doctrine contrary to that held by this Church,' requires a different procedure, with arguably more extensive safeguards, before it can be referred to the Court than Count 2 for violation of Canon IV.1.1(6)(1994) (cf. Canon IV.1l1(h) ) regarding ordination vows. The former requires ten bishops to make a presentment and at least one-fourth of the House of Bishops to consent to sending it to trial. (Canon IV.4.2 , cf. Canon IV.3.22 ).
The procedure called for under Canon IV.4.3 and 5-7 (1994) (cf. Canon IV.3.24(a) and 25-44 ), establishes a process with different, arguably lesser, safeguards. Upon receiving a charge other than 'holding and teaching doctrine contrary to that held by this Church,' the Presiding Bishop summons no less than three and no more than seven bishops to review and consider the charge. (Canon IV.4.5 , cf. Canon IV.3.25  [no less than five and no more than seven bishops]). Only if a majority of those bishops find that the charge, if proved, would constitute an offense, is a Board of Inquiry consisting of five priests and lay persons impaneled to make further inquiry. (Canon IV.4.5 , cf. Canon IV.3.25 ). This is the process which was used in the cases of Bishop Edward R. Welles and Bishop R. Stewart Wood, Jr. discussed in footnotes 5, 18 and 20 in this opinion. Respondent moved the Court to sever Count 2 from Count 1 and, upon a finding by the Court that there is a doctrine prohibiting the ordination in question, to send Count 2 back to the Presiding Bishop to conform to the canonical procedure for a violation of ordination vows under Canons IV.4.3 and 5-7 (1994) (cf. Canons IV.3.24(a) and 25-44 ).
The Canons are silent on how a presentment which explicitly alleges violations of both Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) and other portions of Canon IV.1.1 (1994) (cf. Canon IV.1.1 ) should be handled. Similarly, the Canons are silent on the procedures to be followed in a case in which a charge does not explicitly allege a violation of holding doctrine contrary in violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) but which the Presiding Bishop, panel of bishops, Board of Inquiry, or Court for the Trial of a Bishop determines involves a violation of doctrine.
The parties herein drew opposite conclusions from the same facts regarding this issue. Presenters argue that the persons bringing the charges are entitled to choose which procedural track applies by whether or not they include an allegation of a violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ). Implicit in their argument is the allegation that if such a violation is included, the procedural track in Canon IV.4.2 (1994) (cf. Canon IV.3.22 ) must be utilized. If those bringing the charge do not include a reference to Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ), then the procedures specified in Canons IV.4.3 and 5-6 (1994) (cf. Canons IV.3.24(a) and 25-44 ) must be used. They further assert, without reference to any Episcopal sources, that the Court having obtained jurisdiction over the part of the Presentment involving an alleged violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ), the Court thereby has jurisdiction of everything else in the Presentment. Respondent argues the opposite. He concludes from the silence of the Canons on this issue that the Court cannot obtain jurisdiction of that portion of a presentment involving anything other than an alleged violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) unless and until the procedures specified in Canons IV.4.3 and 5-6 (1994) (cf. Canons IV.3.24(a) and 25-44 ) are followed.
The Court acknowledges that the procedures are different. One involves the preliminary submission to the entire House of Bishops for a determination of whether the matter should go forward. That occurred in this case and Respondent has not alleged that he raised an objection with the Presiding Bishop or included anything in his Answer to the Presentment or Brief in Support of Answer to Presentment stating that the bishops could not vote to consent to the trial of Count 2 because the wrong procedure was being used.
A threshold issue is whether the decision of the Presiding Bishop to forward the entire Presentment to the Court for trial is reviewable by the Court for the Trial of a Bishop or, similarly, by the Court of Review. We do not have to decide that issue because we find that even if we could review the Presiding Bishop's decision, we would uphold it. Of course, if the Presiding Bishop's decision to forward Count 2 to the Court is not reviewable, a decision by this Court that it lacked jurisdiction of Count 2 because the proper procedure was not followed, would be of no effect.
The reasons for the Court's conclusion are several. Charges and presentments against bishops have been rare indeed. Trials have been even rarer. In its 200 plus year history, the Court is aware of only three trials of bishops although an exhaustive search of the Archives has not been made to verify that figure. The procedural dilemma raised by Respondent's Motion to Sever and Stay Count 2 and by his Motion to Dismiss Count 2 certainly was apparent after the Board of Inquiry dismissed the presentment against Bishop Welles who participated in the 1974 ordination to the priesthood of eleven women in Philadelphia. (See In the Matter of the Rt. Rev. Edward R. Welles, Certificate of the Determination of the Board of Inquiry and Report, March 4, 1975, Archives of the Episcopal Church [hereinafter 'Bishop Welles Case']). The fact that General Convention did not thereafter change the Canons to resolve the dilemma is some evidence that it saw no need to change them. However, given the infrequency with which the legislative body of the Church meets and the great press of business it conducts in its relatively brief time together, the Court is reluctant to conclude that General Convention has, by its inaction, deliberately intended to uphold the decision of the Board of Inquiry in the Bishop Welles Case or that it has deliberately refused to resolve the inherent procedural dilemma. The Court is unaware of, and the parties have not pointed out to the Court, any proposed legislation since the dismissal of the presentment by the Board of Inquiry in the Bishop Welles Case twenty years ago in which canonical amendments to resolve the procedural dilemma were offered but not adopted.
The Court finds that the Presenters' arguments in favor of the Court exercising jurisdiction are persuasive and the arguments of Respondent against the Court exercising jurisdiction are not. The Court agrees that the interests of judicial economy are best served by the Court exercising jurisdiction in cases where the presentment alleges both violations of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) and other portions of Canon IV.1.1 (1994) (cf. Canon IV.1.1 ). The Presiding Bishop should not be put in the position of dissecting a presentment which, on its face, alleges a violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1.(c) ) to determine what should be done with other portions which allege violations of other sections of Canon IV.1.1 (1994) (cf. Canon IV.1.1 ). If it were otherwise, the Church could be faced with having two parallel proceedings pending at one time, which might reach inconsistent results. Under Respondent's reasoning the Presiding Bishop would essentially 'sever' a presentment into its component parts and send the portion alleging a violation of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) through the 'doctrine' procedure. At the same time, the portion of a presentment alleging violations of other sections of Canon IV.1.1 (1994) (cf. Canon IV.1.1 ) would be sent to a panel of bishops. That panel might conclude that it lacked jurisdiction because the matter was really one of doctrine (as the Board of Inquiry concluded in the Bishop Welles Case). The House of Bishops might decline to approve the doctrine portion of a presentment for trial, or, having approved it, the Court for the Trial of a Bishop might conclude, as we have here, that doctrine was not involved.
The process for obtaining the bishops' consent to sending the doctrine portion of a presentment to trial takes approximately five to eight months. The process for consideration of the non-doctrinal portions of a presentment has no time limits specified in the Canons. Would the Court be required to stay whichever portion of a presentment reached it first until it was clear whether or not the other portion would also reach it for trial? Judicial economy of both the Court and the parties suggests that would be prudent. However, the Canons are silent on whether that would be required.
The Court previously denied the Motion to Sever and Stay Count 2 and hereby denies that portion of Respondent's Motion to Dismiss Count 2 which alleges that the Court lacks jurisdiction because the proper procedure was not followed. The Court accepts full jurisdiction over both Counts. The Court finds that the greater procedural safeguards established for a violation under Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) requiring ten bishops to make a presentment and one-fourth of the House of Bishops to review it supersedes and includes the lesser provisions and safeguards of Canons IV.4.3 and 5-8 (1994) (cf. Canons IV.3.24(a) and 25-44 ). It does not serve justice or the good order of the Church to require two separate procedures on a single presentment by the same ten bishops. This Court will make a judgment on all matters contained in the Presentment.
The second ground on which Respondent moved for dismissal of Count 2 was that the Declaration of Conformity in Article VIII of the Constitution is not an 'ordination vow' within the meaning of Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ). Respondent argued that a distinction must be made between the Declaration of Conformity which is made in the ordination rite at 'The Presentation' and the vows made during 'The Examination' portion of the rite. (See Memorandum of Respondent On the Court's Motion For Summary Judgment on Count 2 of the Presentment, 11.) The Court disagrees. The Declaration of Conformity must be subscribed and made by every person ordained to minister in this Church. Presenters pointed out that the disregard or disobedience of a pastoral direction is a violation of ordination vows when it concerns the 'Doctrine, Discipline or Worship of this Church or the manner of life or behavior of the Presbyter or Deacon concerned.' (See Canon IV.1.6 ; cf. Canon IV.1.1(h) ; see also Presenters' Response to Respondent's Memorandum on the Court's Motion for Summary Judgment, 13). Thus, the phrase 'ordination vows' as used in Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ) clearly encompasses and refers to the Article VIII Declaration of Conformity. White and Dykman also refer to the Article VIII Declaration as 'the ordination vow.' (See Edwin Augustine White and Jackson A. Dykman, eds., Annotated Constitution and Canons for the Government of the . . . Episcopal Church [New York: Seabury Press, 1981] 1:112). Thus, the Court holds that the Article VIII Declaration of Conformity is an 'ordination vow,' violation of which is presentable under Canon IV.1.1(6) (1994) (cf. Canon IV.1.1(h) ).
Presenters and Respondent both took the position in various briefs and statements to the Court that if the Court found there is no doctrine of the Church prohibiting the ordination of non-celibate homosexual persons, Count 2 as well as Count 1 of the Presentment should be dismissed because Count 2 is based on Respondent's alleged violation of his ordination vow to 'uphold the Doctrine . . . of the . . . Church.' (Presentment, para. X, p. 7.) The quote in the Presentment is to the Declaration of Conformity found in Article VIII of the Constitution. The entire declaration is as follows:
'I do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, and to contain all things necessary to salvation; and I do solemnly engage to conform to the Doctrine, Discipline, and Worship of the Episcopal Church.'
Presenters apparently intended to limit Count 2 to an allegation that Respondent's actions violated only the 'Doctrine' of the Church and not the 'Discipline' or 'Worship' of the Church through their selective quotation of the Declaration of Conformity in paragraph X of the Presentment. However, the Court is not bound by the parties' interpretation that the only violation of ordination vows which may be considered under Count 2 is a violation based on doctrine. The Court must read the Presentment as a whole and determine whether the acts alleged therein, could, if proved, constitute a violation of ordination vows, whether for a failure to conform to the Church's doctrine or on some other grounds. The Court's reading of the Presentment and of Count 2 is that it is not limited to an allegation of violation of doctrine, but includes a broad allegation of violation of ordination vows as well.
Now, therefore, the Court orders as follows:
Let judgment be entered for Respondent.
May 15, 1996
__________________________ _____________________________ Edward W. Jones Robert C. Johnson Bishop of Indianapolis Bishop of North Carolina ___________________________ _______________________________ Donis D. Patterson Cabell Tennis Bishop of Dallas (retired) Bishop of Delaware ___________________________ _______________________________ Douglas E. Theuner Arthur E. Walmsley Bishop of New Hampshire Bishop of Connecticut (retired) ____________________________ Roger J. White Bishop of Milwaukee
Roger J. White, Bishop of Milwaukee, with whom Donis D. Patterson, Bishop of Dallas (retired), joins, concurring in the judgment and filing a separate opinion:
This opinion concurs with the majority opinion in principle and in a 'technical' sense, and includes a separate opinion addressing issues not reached by the majority.
1. This opinion concurs with the majority opinion when it concludes that doctrine is that teaching which the Church has discerned from the Gospel -- kerygma -- through the Councils of the Church over time. Core Doctrine is that which is necessary for salvation. It is 'found in the Book of Common Prayer as adapted and established by the Constitution of the Protestant Episcopal Church in the United States of America . . . in the Apostles' and Nicene Creeds . . . [and] is in all cases to be supported by the Holy Scriptures as interpreted by the Church in its corporate capacity.' (Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, May 29, 1924, Archives of the Episcopal Church, 134).
To teach or not against such Doctrine leaves a person liable to the charge presentable under Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ), 'holding and teaching publicly or privately, and advisedly any doctrine contrary to that held by this Church.'
No specific Core Doctrine has been taught or acted upon by Respondent, as charged in Count 1.
2. This opinion concurs with the majority opinion when it concludes that there is no 'discipline' of the Episcopal Church as the Church's teaching is codified in the Constitution and Canons of this Church presentable under Canon IV.1.1 (1994) (cf. Canon IV.1.1 ) for ordaining a non-celibate homosexual person. There is no specific canonical constraint that governs Respondent's action as charged in Count 2.
3. This opinion concurs in a 'technical' sense with the majority opinion when it concludes that in the teaching, didache, discerned by the Church in its corporate capacity, there is no specific teaching or discipline which has been contravened by Respondent as charged in Count 2 as the pertinent 1979 General Convention action referred to in this case was specifically 'recommendatory.'
This separate opinion addresses issues of doctrine not addressed by the majority opinion.
The argument of Respondent is based on silence in both the Holy Scriptures and in this Church's teaching as discerned in its corporate capacity, by General Convention. This opinion will address the consequences of such arguments based on silence as they apply to what constitutes the doctrine of the Church as they impact the life and order of the Church, and as they specifically apply to the authority of a bishop.
A. The Issue Before the Court
The second half of the question submitted to the parties by the Court focused on the issue before the Court. Specifically, 'what is binding on what a bishop may or may not teach?'
In the context of what constitutes the teaching of the Church, as outlined in this opinion, the following related question becomes a helpful focus for this opinion: Is it possible for a bishop to teach or act on teaching which is neither supported by Holy Scripture; or by the Church discerning, deciding and fixing teaching as it acts in its corporate capacity; or which is not supported by the Book of Common Prayer?
This opinion relies on various precedents, but especially on the Bishop Brown Case, which sets precedent for this Court. (See Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, 1924, Archives of the Episcopal Church).
While the majority opinion leans heavily for guidance on the Bayne Committee Report (reprinted in Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1967], app. 6), this opinion finds that report to be a 'softer' precedent, as it was not officially received by the Church and few of its suggestions have ever been implemented by the Church. The Bayne Committee Report is useful as a guide for the Church's life, but lacks the precedential value of other sources, especially the Bishop Brown Case.
B. What Does Constitute the Teaching of the Church
The history and tradition of this Church has consistently held that what constitutes the teaching of the Church has been formulated from the following sources and needs to be supported by these sources.
1. Holy Scripture
The teaching of the Church is to be supported by Holy Scripture. Nothing may be taught which does not accord with Holy Scripture. As the Court for the Trial of a Bishop in the Bishop Brown Case stated:
It is a matter of common knowledge that the doctrine of the Church is not formulated in the Holy Scriptures, but is in all cases to be supported by the Holy Scriptures as interpreted by the Church in its corporate capacity.
(Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, May 29, 1924, Archives of the Episcopal Church, 134 [emphasis added]).
2. The Whole Church Acting in its Corporate Capacity
The teaching of the Church is found, interpreted and fixed by the Church corporately. Once again, a precedent for this Court is the Bishop Brown Case:
The doctrine of this Church is fixed by the whole Church, acting in its corporate capacity, and not by the individual opinions or interpretations placed upon any documents supposed to contain the Church's doctrine, by any bishop, priest, or deacon speaking individually.
(Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, May 29, 1924, Archives of the Episcopal Church, 133 [emphasis added]).
3. Book of Common Prayer
The teaching of the Church is also found in the Book of Common Prayer, if derived from both the Holy Scriptures and from the teaching of the Church fixed by the whole Church acting in its corporate capacity.
B. What Does Not Constitute the Teaching of the Church
In the polity of the Episcopal Church, the corporate capacity of the Church is the General Convention. The House of Bishops, the House of Deputies, a diocese, or individual acting independently does not constitute the whole Church acting in its corporate capacity, but in each case speaks for themselves alone. General Convention acting as the Council of the whole Church speaks for the Church in its corporate capacity and fixes the teaching of the Church, so long as such conforms and does not contradict the Core Doctrine of the Church as outlined in the majority opinion.
This opinion finds no precedent in the tradition of the Church for a diocese, a bishop, a priest, a deacon or any individual acting alone having the authority to change or propound the teaching of the Church without the whole Church first acting in its corporate capacity. But rather in the polity of this Church, a bishop and diocese are called upon to implement in their diocese the teaching found, interpreted and fixed by the whole Church acting in its corporate capacity. If such were not the case, then a diocese would be 'the whole Church,' when in reality it is a part of the whole.
For a bishop or a diocese to propound or change the teaching of the Church apart from the whole Church acting in its corporate capacity would be contrary to the polity of this Church and contrary to the nature of the Church as this Church has understood the nature of the Church. A bishop is ordained as 'a bishop of the Church of God' (Book of Common Prayer, 514) and teaches and acts on behalf of the whole Church. Such teaching or action may be, and usually is, in the context of a diocese. However, such teaching and action is that which has been found, interpreted and fixed by the whole Church acting in its corporate capacity, not, according to the precedent of the Bishop Brown Case, 'by the individual opinions or interpretations . . . by any bishop . . . speaking individually.' (See Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, May 29, 1924, Archives of the Episcopal Church, 133; see also Resolution, 'Levels of Authority within the Church,' sec. 1, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1964], 313). This understanding is a reflection of the attitude expressed in Article XXXIV of the Articles of Religion (1801) which states:
Whosoever, through his private judgment, willingly and purposely, doth openly break the Traditions and Ceremonies of the Church, which be not repugnant to the Word of God, and be ordained and approved by common authority, ought to be rebuked openly, (that others may fear to do the like,) as he that offendeth against the common order of the Church, and hurteeth the authority of the Magistrate, and woundeth the consciences of the weak brethren.
(reprinted in Book of Common Prayer, 874).
C. The Teaching of the Church as Applied to this Presentment
This opinion now moves to apply what does and what does not constitute the teaching of the Church to the Presentment before the Court.
This analysis raises the crucial issue in this Presentment as to whether the ordination by Respondent of a non-celibate person to the diaconate was based on:
1. Teaching Supported by Holy Scripture
Counsel for Respondent stated in Court in Wilmington, Delaware that the Brief in Support of Presentment 'was simply silent on the issue as respect to a scriptural basis for concluding that there is a prohibition against such an ordination. It simply is not there.' (Transcript of the Record, February 27, 1996, 208). Counsel for Respondent went on to state that his 'argument is clearly based on the absence of finding this prohibition that [the Presenters] cite in any of the four sources of doctrine. . . . You simply can't find it.' (Ibid., 210-11). If 'it is simply not there,' then such action cannot be supported by the Holy Scriptures.
The Bishop Brown Case sets a precedent that nullifies arguments from the silence of Holy Scripture. It is very specific in its ruling that 'doctrine of the Church is not formulated in the Holy Scriptures, but is in all cases is to be supported by the Holy Scriptures as interpreted by the Church in its corporate capacity.' (See Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, May 29, 1924, Archives of the Episcopal Church, 134 [emphasis added]).
There is no scriptural support or commendation in the Holy Scriptures, there is silence on the matter. Therefore, there is no scriptural support evidenced for such action by a bishop of the Church.
2. Teaching Found, Interpreted and Fixed by the Whole Church in its Corporate Capacity
The actions of General Convention as recorded in the Journal of the General Convention of the Church has not, to date, declared in its teaching that the ordination of a non-celibate homosexual person is permissible. In fact, various bodies of the Church from General Convention to other statements and resolutions of the House of Bishops have recommended against such action by a bishop of the Church, until the whole Church acting in its corporate capacity has decided what is the teaching of the Church as it relates to such ordinations.
Such advisory statements include:
Thus, the Church acting in its cooperate capacity has not, to this date, decided what is to be the Church's teaching concerning the ordination of non-celibate homosexual persons. Nor has the Church in its corporate capacity endorsed or given permission for such ordinations. To the contrary, it has in a recommendatory manner strongly asked that such ordinations should not proceed.
3. Teaching Supported by the Book of Common Prayer
In the Book of Common Prayer there is no specific teaching to support ordination of non-celibate homosexual persons by a bishop of this Church.
The teaching and action of Respondent has not been shown in documents and evidence submitted to this Court to be supported by Holy Scripture, nor has it been shown to be supported by the corporate decision of the Church acting in its corporate capacity, nor has it been shown to be supported by the teaching of the Book of Common Prayer. The ordination of non-celibate homosexual persons cannot be verified or endorsed by any teaching of the Church nor has the Church given permission to a bishop to take order for such ordinations.
The argument of Respondent is that Holy Scripture, General Convention, and the Book of Common Prayer are silent on the matter before the Court and any caution about procedingg to such ordinations are only recommendatory. But because the teaching and action of Respondent cannot be supported by Holy Scripture, the resolutions of General Convention or the Book of Common Prayer, such teaching and action must be seen to be presumptive and preemptive. To act without the support of Holy Scriptures, the corporate decision of the whole Church or the Book of Common Prayer, is to preempt the corporately discerned and fixed teaching of the Church. Such individual action by a bishop or a diocese can only threaten the unity of the Church and question the nature of the Church itself.
The central importance of unity to the nature of the Church was expressed in a 1964 resolution of General Convention:
. . . . There is an obligation in our mutual interdependence within the Body of Christ that calls for appropriate restraint lest any statement or action seem to claim authority that it does not possess.
. . . we urge that groups and individuals will identify their private character and not appear to assume authority which is not possessed. Unofficial groups and individuals also bear responsibility to the Church of which they are a part.
The Holy Spirit of God is not to be bound. Yet the Church must act with a sense of order within itself, that God's word be spoken effectually to God's world and in clarity within its own fellowship.
(Resolution, 'Levels of Authority within the Church,' Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1964], 313).
The Church of England provides similar teaching on the subject of unity within the church and the role and responsibility of bishops. A statement by the House of Bishops of the General Synod of the Church of England states:
The Anglican ethos, as this has developed over the centuries, is to see the perception and teaching of the faith as work in which the whole Church is involved. . . . the bishops have a particular role and responsibility, but this is exercised in two ways: 'in council,' that is, in consultation with the whole people of God, and especially with their representatives in synod; and collegially, that is, seeking as one body the wisdom and insight that come from the Grace of God's Holy Spirit in and through the corporate prayer and reflection, and expressing to the rest of the Church and to the world the common mind given to them as a result.(The Nature of Christian Belief, A Statement and Exposition by the House of Bishops of the General Synod of the Church of England [London: Church Publishing House, 1986], para. 64). As to the role of bishops in particular, the statement explained that 'for the oversight of this bishops are responsible within their own dioceses, and corporately within the Church of which they are members.' (Ibid., para. 73). Accordingly, a bishop 'in all he says he must take care not to present variant beliefs as if they were the faith of the Church.' (Ibid., para. 70). Likewise, the report of the Archbishop of Canterbury's Commission on Communion and Women in the Episcopate addressing the reception of teaching called upon those who disagree to stay united during the process of reception, which may take some time, and instructed bishops that 'they should exercise special care lest they cease to be agents of the unity by becoming focal points of dissension.' (The Eames Commission: The Official Reports, the Archbishop of Canterbury's Commission on Communion and Women in the Episcopate [Toronto: Anglican Book Centre, 1994], 36 [emphasis added]).
This opinion concludes that it is not permissible, if it is even possible, in our polity for a bishop to teach or act on teaching which is neither supported by the Holy Scriptures, the Church acting corporately nor the Book of Common Prayer. This opinion also concludes that it is not inappropriate for the Church to disassociate itself from such individually discerned teaching and preemptive action by an individual bishop, priest, deacon, person or diocese acting on authority which it does not possess.
This opinion raises the important issue of teaching and acting from silence for this Church to address. Instead of pursuing legal avenues the Church would be better served if it would move to clarify the basis of its teaching and polity. The Church has clear precedents for how the teaching of the Church is constituted, the Church is urged to address this issue of Doctrine and teaching so that the unity of the Church may be preserved. For unity is critical for God's mission and it is to that mission that we are called and must attend.
____________________________ _____________________________ Roger J. White Donis D. Patterson Bishop of Milwaukee Bishop of Dallas (retired)
Andrew H. Fairfield, Bishop of North Dakota, dissenting:
This opinion differs from the majority opinion in the basic definition of doctrine. The majority would limit the term 'doctrine' to the original, core gospel preaching, or kerygma. I see doctrine more broadly as including the teaching of the Church about Christian faith and life, teaching which can be found in Holy Scripture, is formalized in the Book of Common Prayer, and is identified and applied by resolutions of General Convention. What the majority describes as 'doctrinal teachings' outside of doctrine as that term is used in Article VIII of the Constitution, Title IV of the Canons, and the Book of Common Prayer, I include within the use of the term 'doctrine.' Further, I am convinced that the Episcopal Church does have doctrine which proscribes ordination of non-celibate homosexual persons. Because of the approach I take, I do not reach the questions raised by Count 2 with respect to discipline.
II. Central Issues in this Case
Respondent is charged, in part, with 'holding and teaching publicly or privately, and advisedly . . . doctrine contrary to that held by this church.' (Canon IV.1.1(2) ; cf. Canon IV.1.1(c) ). The main action for which Respondent is charged, which he does not dispute, is the ordination of a non-celibate homosexual person to the diaconate. The issues then, are the meaning of the term 'doctrine,' and whether the Episcopal Church has doctrine that proscribes ordination of non-celibate homosexual persons.
What is 'doctrine' in the context of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) )?
In this context, doctrine is the teaching of the Church as we have reflected corporately on Holy Scripture and spoken through our Book of Common Prayer, and on some issues have spoken further through resolutions of General Convention. Doctrine may be about God, our relationship with God, and about human beings as we relate with one another. The more clearly a resolution of General Convention relating to faith and practice is explicitly connected to the consistent teaching of Holy Scripture as historically accepted by the Church, the more clearly it is to be understood as doctrinal authority which bishops by their ordination vows are obliged to uphold. Whatever degree of consistency with Holy Scriptures a particular General Convention resolution must have to be identified as doctrine, the 1979 General Convention resolution proscribing ordination of non-celibate homosexual people has that degree and therefore is to be regarded as doctrine.
III. Presenters' and Respondent's Position on 'Doctrine'
Presenters in their Paper on Doctrine offered to this Court and in their arguments to the Court on February 27, 1996, argued that 'doctrine' is the teaching of the Church, and that doctrine can involve moral and social teaching as well as the basic statements in the Nicene and Apostles' Creeds. (Paper on Doctrine, February 1, 1996, 1-2; Transcript of the Record, February 27, 1996, 19-20). Presenters pointed to the doctrinally authoritative integration of Holy Scripture with the House of Bishops resolution of 1977 and the General Convention resolution of 1979 proscribing ordination of non-celibate homosexual people. (See Resolution, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], B-192 to B-193; Resolution A-53s, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], C-89 to C-93). The Presenters' attorney concluded by urging this Court to hold that 'the Episcopal Church has a moral doctrine by which we are willing to stand' and by suggesting that 'how we apply that doctrine in any given case would be a matter of charity, love, wisdom, . . . (and) prudential judgment.' (Transcript of the Record, February 27, 1996, 256).
Respondent argued that the Church does not have a doctrine relating to ordination of non-celibate homosexual people. During oral argument on February 27, 1996, Respondent's attorney cited a passage in the first paragraph of the Preface to the Book of Common Prayer, 9, referring to the Church's worship, that ''what cannot clearly be determined to belong to doctrine must be referred to discipline,'' (Transcript of the Record, February 27, 1996, 134) and used this to argue that doctrine is only what we say about God that is agreed upon by all and is essential to membership in the church (such as what can be found in the Apostles' or Nicene Creeds). All else, including matters of human interaction, Respondent's attorney said is 'discipline.' (Transcript of the Record, February 27, 1996, 121-23, 131, 134-35).
However, material included in the prayer book to which the above mentioned Preface was applied indicates that when the Book of Common Prayer was first adopted, 'doctrine' was understood to have a broader meaning than simply what can be found in the creeds. Specifically, Article XXXV of the Articles of Religion (1801) (reprinted in Book of Common Prayer, 874-75) declares that 'the Second Book of Homilies . . . doth contain a godly and wholesome Doctrine.' In this book are to be found homilies on subjects such as matrimony, alms giving, and against excess of apparel. (Ibid.) These subjects are certainly of a much broader range than what can be found in the creeds. Respondent's argument limiting 'doctrine' to our essential belief about God does not hold up to contextual criticism.
Respondent argued that since 'doctrine' concerns basic commonly agreed upon statements about God only, and does not refer to issues of human interaction, the Episcopal Church holds no doctrine proscribing ordination of non-celibate homosexual people. According to Respondent, such a proscription, if it existed, could only be a matter of discipline. (Transcript of the Record, February 27, 1996, 121-23).
However, Respondent's attorney was not logically consistent in this line of argument. Having said that matters of human interaction are 'discipline,' when asked about the opening instructions of the marriage service (see Book of Common Prayer, 423), he said this was 'a fair statement of doctrine' even though the instruction clearly involves the interaction of a man and a woman in marriage. (Transcript of the Record, February 27, 1996, 164). Respondent's inconsistent way of differentiating 'doctrine' from 'discipline' does not convincingly fit textual reality.
I find Respondent's restrictive definition of 'doctrine' as basic creedal statements about God only, with all other Christian teaching defined as 'discipline,' to be untenable.
IV. Critique of Majority Opinion of this Court
The majority has adopted the essentials of Respondent's argument in holding that, as it applies in Title IV of the Canons, 'doctrine' refers only to 'Core Doctrine' or kerygma. This restrictive definition of the term 'doctrine' is questionable for a number of reasons. Contemporary conversational use of the word 'doctrine' most often denotes both kerygma and other teaching. Webster's New Collegiate Dictionary (Springfield, Massachusetts: Merriam, 1977), 336, defines 'doctrine' as 'something that is taught; a . . . position . . . in a . . . system of belief.' Numerous examples of the word 'doctrine' being used broadly to mean the teaching of the Church about Christian faith and life appear also in the literature offered by both Presenters and Respondent for consideration by this court. Following are some examples.
The Presenters offered an excerpt from 'A Traditional Christian Understanding of Marriage,' in Continuing the Dialogue, a Pastoral Study Document of the House of Bishops to the Church as the Church Considers Issues of Human Sexuality (Cincinnati: Forward Movement Publications, 1995), 39-54. Here we read: . . . the traditional teaching of the Episcopal Church on sexuality and marriage. Since all Church doctrine must be rooted and grounded in Holy Scripture . . . . (Ibid., 39). And again:
The present tradition of the Episcopal Church on human sexuality and marriage is our expression, in doctrine and worship . . . . (Ibid.). In both of these usages, 'doctrine' is clearly used as a synonym for 'traditional teaching of the Church.'
Both Presenters and Respondent offered the Bayne Committee Report ('Report of the Advisory Committee on Theological Freedom and Social Responsibilities,' reprinted in Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1967], app. 6) in support of their arguments. In the report, we read:
The intent of this proposal is to give the Church an alternative method of dealing with doctrine -- spoken or acted out -- which is clearly irreconcilable with the Church's teaching, without rejection of the person himself. (Ibid., app. 6.21). Here, not only is 'doctrine' used in a parallel way with 'the Church's teaching,' but 'acted out' suggests teaching of a broader scope than statements about God such as are found in the creeds.
Respondent offered selected articles from On Being a Bishop, Papers on Episcopacy from the Moscow Consultation 1992 (New York: Church Hymnal Corp., 1993), edited by the Rt. Rev. J. Robert Wright, including 'The Ministry of Bishops: A Study Document Authorized by the House of Bishops of the Episcopal Church.' In this article, we find reference to:
. . . the doctrines of episcopal collegiality and conciliar leadership . . . . (Ibid., para. 32, p. 100). And again, we find reference to: . . . doctrine of the Church, or ecclesiology, . . . . (Ibid., para. 36, p. 103). 'Doctrine' in these usages offered by Respondent clearly goes beyond his narrow definition of the term. The majority's restriction of the term 'doctrine' to mean only the 'core' gospel preaching of kerygma is not consistent with the way the term 'doctrine' is used in recent academic Church literature.
Further, canonical use of the word 'doctrine' includes teaching broader than 'Core Doctrine' or kerygma. The Episcopal Church's ministry Canons describe doctrine as 'the Church's teaching as set forth in the Creeds and in An Outline of the Faith, commonly called the Catechism.' (Canon III.10.1(c)(2)). The Catechism teaches, among other things, that we are 'to love, honor, and help our parents' (Book of Common Prayer, 848) and that the ministry of a bishop, in part, is 'to guard the faith, unity, and discipline of the whole Church' (ibid., 855). This doctrine reaches far beyond 'kerygma.'
In summary, contemporary conversational use of the word 'doctrine,' recent academic and canonical use of the word, as well as archaic use of 'doctrine' in the Articles of Religion (1801) (reprinted in Book of Common Prayer, 867-876) indicate that the plain meaning of the term to the Church has been and still is 'teaching of the Church.' This broad meaning of 'doctrine' may then include teaching on the issue of ordination of non-celibate homosexual people, and encompasses the language of Canon IV.1.1(2) (1994) (cf. Canon IV.1.1(c) ) that a bishop of this Church shall be liable to presentment for 'holding and teaching publicly or privately, and advisedly, any doctrine contrary to that held by this Church.'
V. Episcopal Church Doctrine Concerning Sexuality and Homosexual Behavior
Is ordination of an actively homosexual person contrary to the 'doctrine' of the Episcopal Church? I believe that it is. Here follows the reasoning towards this opinion:
Episcopal Church doctrine on sexuality and homosexual behavior comes from three sources:
The first source is basic. The second formalizes certain doctrines coming from Holy Scripture. In the third, we interpret, expand on, and apply doctrine we see it coming from both Holy Scripture and the Book of Common Prayer.
A. Holy Scripture
1. Creation Stories
So God created humankind in his image,
In the image of God he created them;
Male and female he created them.
Genesis 1:27 NRSV (New Revised Standard Version)
We who are coming to know God, from the earliest writers on, understand God to be complete unto God's self, complete in some mysterious way by bringing opposites into integration with each other. Through our experience, we have known God as both judge and lover, boundary setter and intimacy seeker. Through the experience and appreciation of complementary opposites such as these, we have known God as the comprehensive source of life.
C.S. Lewis spoke of these complementary opposites as a 'transcendent polarity.' Through the mouth of his protagonist Ransom in his novel That Hideous Strength (New York: Collier, 1962), 315, Lewis asserts:
Gender is a reality and a more fundamental reality than sex. Sex is, in fact, merely the adaptation to organic life of a fundamental polarity which divides all created beings. Female sex is simply one of the things which has feminine gender; there are many others and Masculine and Feminine meet us on planes of reality where male and female would be simply meaningless
. . . . The male and female of organic creatures are rather faint and blurred reflections of masculine and feminine . . . . Their reproductive functions, their differences in shape and size partly exhibit, party also confuse and mis- represent, the real polarity.
So when the Priestly writer said, 'In the image of God He created them; male and female He created them,' I believe the writer was saying that the human opposites male and female complement each other into a wholeness which reflects God's nature and purpose.
The 1977 House of Bishops adopted a statement from its Committee on Theology (see Statement of Committee on Theology, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], B-190 to B-191), which addressed the complementariness of man and woman in reflecting the image of God. The statement said, in part:
Both in the Old Testament and in the New Testament the understanding of sex is rooted in the conviction that the divine image in humanity is incomplete without both man and woman. Hence, the aim of sexuality, as understood in Christian terms, is not merely satisfaction or procreation but completeness. Interpersonal completeness -- 'The two shall become one' -- is the ancient prescription, a union of differences. This does not mean simply genital differences, but all the differences biological and cultural that distinguish male and female all gathered into the symbol of 'two shall become one.'
While the Hebrews spoke of male and female, and the House of Bishops' Committee on Theology spoke of man and woman, these days we are apt to echo C.S. Lewis in reference to the more transcendent aspects of femininity and masculinity. In talking about God, we would say that God is perfect masculinity and perfect femininity all in one. (In speaking of the Trinity, we might say that we know the Father as judge [masculine], the Spirit as the one who empowers to intimacy [feminine], and Jesus, though he was 'male,' in his dealings with people as displaying perfect masculinity and femininity. Leanne Payne in her book Crisis in Masculinity [Westchester, Illinois: Crossway Books, 1985], 82-83, writes of prayerfully leaning on Jesus' masculine breast and being 'strengthened and renewed, as by a mother.' [emphasis in original]).
But this principal is basic in Scripture: It takes maleness and femaleness, masculinity and femininity, coming together to reflect the image of God. In sexual matters specifically, it takes the coming together of maleness and femaleness to reflect the plan of God for life. This plan for life is both biological in procreation and relational in sexual intimacy.
It is not good that the man should be alone; I will make him a helper as his partner. (Genesis 2:18 NRSV). The Jahwist says that the man by himself is not complete, not the fulfillment of God's plan to create humankind in God's image. Completeness -- man and woman together -- is said to be 'good;' while incompleteness ('alone') is said to be 'not good.' 'A helper as his partner' suggests the relational/emotional complementariness mentioned above.
Therefore a man leaves his father and his mother and clings to his wife, and they become one flesh. (Genesis 2:24 NRSV). 'Father and mother' together reflect completeness. To act out God's plan for completeness, the Jahwist sees the man, alone, moving into intimate relationship with ('clings to') his wife.
What we have here then is a view of sexual relationship which is normative because it reflects the coming together of complementary opposites which the biblical writer understood to be 'in the image of God' and therefore 'good.' Other references in Scripture evaluative of sexual behavior are keyed on this norm of the complementary coming together of male and female, husband and wife.
2. Holiness Code
Leviticus chapters 18-20 proscribes, among other things, incest, bestiality, and homosexual acts. Here the underlying principal is that 'you shall be holy, for I the Lord your God am holy.' (Leviticus 19:2 NRSV). 'For by (these proscribed behaviors) the nations I am casting out before you have defiled themselves.' (Leviticus 18:24 NRSV). To paraphrase, the passages say 'Don't do these things that other peoples have done, for by doing them, they have fallen short of the glory of God.'
Incest is proscribed because 'their nakedness is your own nakedness.' (Leviticus 18:10 NRSV). Complementariness is not there. The verse (which I do not use as a stand- alone 'proof text' here) 'You shall not lie with a male as with a woman; it is an abomination' (Leviticus 18:22 NRSV) is a concise way of saying that turning away from the complementariness of male/female, turning away from acting in the image of God, is against God's plan for life. It simply points back to the norm for sexual behavior outlined in the creation story.
The record we have of Jesus' teaching about divorce indicates that Jesus referred to that same norm in the creation story: 'But from the beginning of creation, 'God made them male and female.'' (Mark 10:6 NRSV). Jesus associates God's will with a man and a woman coming together in marriage: 'Therefore what God has joined together . . . .' (Mark 10:9 NRSV). In other words, Jesus restates in a positive way God's plan for sexual relationships as male and female, husband and wife, coming together to reflect a complete image of God.
Currently it is popular to speculate that Jesus would treat homosexual people in the same way he treated tax collectors and other outcasts -- that he would go to their homes, identify with them. This is probably so. But he would not bless their activity, just as he did not bless the activity of tax collectors and others such as the woman caught in adultery ('Go your way, and from now on do not sin again.' [John 8:11 NRSV]). Jesus would not bless what conflicts with his foundational understanding.
In the Gospel according to Paul (the Letter of Paul to the Romans), Paul began with a description of human rebellion towards God:
for though they knew God, they did not honor him as God or give thanks to him, but they became futile in their thinking, and their senseless minds were darkened.(Romans 1:21 NRSV). Because of this, Paul says that God
gave them up to degrading passions. Their women exchanged natural intercourse for unnatural, and in the same way also the men, giving up natural intercourse with women, were consumed with passion for one another.
(Romans 1:26-27 NRSV). Paul sees lesbian and homosexual acts as natural extensions of human rebellion and idolatry. For Paul the Jew, this is totally consistent with Genesis 1 and 2. The 'image of God' norm is heterosexual relationship which reflects God's identity and plan for the life of God's creation. When you rebel against God, you naturally do what does not reflect God, which does not make for life.
In 1 Corinthians, Paul's teaching about sexual relationships was in the context of 'the impending crisis.' (1 Corinthians 7:26 NRSV). He said that he wished that all were as he was (celibate), but that each has a particular gift from God (1 Corinthians 7:7 NRSV) and that instead of slipping into porneia (sexual immorality), 'each man should have his own wife and each woman her own husband' (1 Corinthians 7:2 NRSV). Again, even though times were tough, if people's sexual drives were becoming a distraction to them, they should follow the norm set down in Genesis 1 and 2.
In summary, there is an integrated approach to human sexuality that the Bible sets forth as a norm (male/female, husband/wife); and this norm is based on a doctrine of humanity ('image of God') which is in turn based upon a doctrine of God's complementariness and completeness ('male and female he created them . . . . good').
There are, of course, many passages in scripture which are being debated on the issue of homosexuality. Let me briefly point to one other passage: 'Fornicators, idolaters, adulterers, male prostitutes, sodomites, . . . none of these will inherit the kingdom of God.' (1 Corinthians 6:9-10 NRSV). The translation here of the word malakoi as 'male prostitutes' misses the mark. The argument goes that Paul was not really proscribing homosexual behavior, only prostitution. However, it is not so easy to put malakoi aside. The root of the word malakoi means 'soft;' and in the slang which both was used in the ancient world and continues today in matters of sex, as likely a translation for malakoi as 'male prostitute' would be 'softy,' suggesting a passive or reactive homosexual partner. The other term, translated 'sodomites' in the New Standard Revised Version, is arsenokoitai, which literally means 'man-bed.' This suggests an active partner in a homosexual encounter. Issues in Human Sexuality, a Statement by the House of Bishops, General Synod of the Church of England (London: Church House Publishing, 1991; reprint Harrisburg, Pennsylvania: Morehouse Publishing, 1991), para. 2.15, agrees that malakoi and arsenokoitai are 'words usually held to denote men who adapt [sic] passive and active roles in homosexual intercourse respectively.' The bottom line is that homosexual activity of any kind is proscribed. And this is totally consistent with Paul's Jewish theological roots outlined above.
While the Old Testament reports instances of polygamy and concubinage, the Old and New Testaments are agreed and consistent in their view that extra-marital sexual activity constitutes diversion from God's plan. The heterosexual, married ('What God has joined together . . . .') relationship is the Biblical standard for sexual activity. Homosexual activity is proscribed, along with bestiality, incest, and all sexual activity which does not embody the complementary image and creative purpose of God.
The Committee on Theology report adopted by the 1977 House of Bishops, (see Statement of Committee on Theology, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], B-190 to B-191), offers the following summary:
The biblical understanding rejects homosexual practice. Heterosexual sex is clearly and repeatedly affirmed as God's will for humanity. The teaching of Jesus about marriage, the teaching of Paul and other biblical writers are unanimous and undeviating in portraying heterosexual love as God's will and therefore good and normative at the same time keeping in mind our Lord's recognition (cf. Matthew 19:12) that there is also virtue in the celibate life. It is clear from Scripture that heterosexual marriage is unanimously affirmed and that homosexual activity is condemned.
This scriptural evidence stands by itself. What makes it Episcopal doctrine is the identification and formalization of it in our Book of Common Prayer, with further interpretation and application in official communications of General Convention.
B. Book of Common Prayer
In the Book of Common Prayer, Episcopal Church doctrine on matters of sexuality is found in two places: in 'The Celebration and Blessing of a Marriage' and in 'An Outline of the Faith commonly called the Catechism.' (Book of Common Prayer, 423, 485).
In the marriage service, the opening instructions state that 'the bond and covenant of marriage was established by God in creation.' (Ibid., 423). This refers back to the Genesis passage cited above. The marriage collect begins 'you have created us male and female in your image.' (Ibid., 425). Again, this refers to the complementariness of male and female which in the created order and in marriage serves to reflect God's nature.
The opening instructions conclude that marriage is not to be entered into otherwise than 'in accordance with the purposes for which it was instituted by God.' (Ibid., 423). This clearly links marriage with God's purposes for complementary companionship between wife and husband, for their mutual joy, help and comfort, as well as ('when it is God's will' [Ibid.]) for the raising of children.
Are there any other purposes for which human sexuality was instituted by God? Consistent with Holy Scriptures, the Book of Common Prayer suggests no other.
The other reference in the Book of Common Prayer to God's intention for human sexual activity is in the Catechism treatment of the Ten Commandments with respect to the meaning of the seventh commandment: 'To use all our bodily desires as God intended.' (Ibid., 848). The reasonable conclusion from this textual material is that according to the Book of Common Prayer, sexual intercourse other than as God intended in marriage comes under the heading of adultery or fornication. (The Interpreter's Dictionary of the Bible, an Illustrated Encyclopedia [New York: Abingdon Press, 1962], 2:321, defines 'fornication' in the Old Testament as the 'practice of sexual immorality and harlotry,' and in the New Testament, 'the words for 'fornication,' 'to practice fornication,' etc., refer to every kind of sexual intercourse outside marriage.')
C. Resolutions of General Convention
It is debatable whether or not resolutions of General Convention concerning positions of the Church constitute Church doctrine in and of themselves. However, when in the context of Holy Scripture and the Book of Common Prayer, resolutions which offer interpretation or application of teaching from these more deeply rooted sources, together with these sources themselves, constitute doctrine.
The 1924 decision of the Court for the Trial of a Bishop in the Bishop Brown Case stated 'doctrine is to be found in the Book of Common Prayer as adopted and established by the Constitution of the . . . Episcopal Church . . . . It is a matter of common knowledge that the doctrine of the Church is not formulated in the Holy Scriptures, but is in all cases to be supported by the Holy Scriptures as interpreted by the Church in its corporate capacity.' (Bishop Brown Case, Transcript of the Record, Court for the Trial of a Bishop, May 29, 1924, Archives of the Episcopal Church, 134).
Thus the resolution of the 1979 General Convention identified and applied a basic Christian doctrine. The resolution said in part:
. . . the traditional teaching of the Church on marriage, marital fidelity, and sexual chastity [is] the standard of Christian sexual morality. Candidates for ordination are expected to conform to this standard. Therefore, . . . it is not appropriate for this church to ordain a practicing homosexual, or any person who is engaged in heterosexual relations outside of marriage.
(Resolution A-53s, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1979], C-89 to C-93). Even though twenty bishops signed a minority report in conflict with this resolution, the majority resolution, rooted in the traditional teaching of the Book of Common Prayer and Holy Scripture, was one of doctrine, official teaching of the Church which members, and especially bishops (by their ordination promises), are expected to honor.
Since 1979, Church leadership has offered various other statements and resolutions (see Statement by the Presiding Bishop and Council of Advice, February 20, 1990; Resolution B-1a, Journal of the General Convention of the . . . Episcopal Church [New York: General Convention, 1991], 499-501; Resolution A-104sa, ibid., 746) reflecting the traditional teaching of the Church (doctrine), with other continuing minority reports as well as acknowledgment of 'discontinuity' between doctrine and the experience of some members of the Church.
The continuing doctrine in the Episcopal Church, in spite of minority reports and 'discontinuities,' is that sexual activity within marriage is the only acceptable sexual activity for a Christian, and that it is not appropriate to ordain someone who is acting otherwise, since that activity is not a 'wholesome example' of God's purpose understood in Scripture. Despite the majority's argument that no Canon has been passed by General Convention prohibiting such ordinations, there has never been an official statement of General Convention rejecting its 1979 Resolution. As a result, the members of General Convention had a right to assume that bishops would respect their statements without requiring the explicit threat of a sanction.
Because I find that the doctrine of the Church -- as found in Holy Scripture, formalized in the Book of Common Prayer, and identified and applied by resolutions of General Convention -- proscribes the ordination of non-celibate homosexual persons, I therefore dissent from the decision reached by the majority of the Court.
Andrew H. Fairfield
Bishop of North Dakota