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A series of essays towards General Convention in 2003

Why Trials Are Good Things, or Why Non-Resident Licensed Clergy Are Not

Why Trials Are Good Things,
or Why Non-Resident Licensed Clergy Are Not

By Thomas Bushnell, BSG

On March 4, 2002 The Rt. Rev. Charles Bennison, Bishop of Pennsylvania inhibited the Rev. David Moyer, a priest of his diocese, under Canon IV.10. This canon provides that a priest who has abandoned the communion of the Episcopal Church, upon a suitable finding by the Standing Committee, may be inhibited for six months. If the priest does not present a good faith retraction of the allegations made by the Standing Committee, then he may be deposed at the conclusion of the six month waiting period.

The Canon addresses those who leave, and intend to leave, the communion of the Episcopal Church, but who do not request the proper form of release from the vows of ordination. Its use by the Diocese of Pennsylvania as a response to the many violations of canon law by the Rev. David Moyer came as quite a surprise to many. The Bishop explained in a letter to the clergy of the Diocese of Pennsylvania, on March 1, that this course was being chosen out of a spirit of patience, because it allowed Moyer six months of grace period.

During the six months, Moyer obeyed the terms of the inhibition, neither wearing clericals, nor presiding at worship in his parish. Services were conducted by his curate, who it turns out is not canonically resident in Pennsylvania, but rather the Diocese of Pittsburgh.

The six months have now ended, Moyer did not offer a good faith retraction of the Standing Committee's allegations, and Bennison duly deposed him on September 4. The sequel is most alarming. The bishop of the Diocese of Pittsburgh has received Moyer as a priest in good standing, and offered him a non-stipendiary post in Pittsburgh, while expecting he will continue to hold services at the parish in the Diocese of Pennsylvania. The curate's license has been revoked by Bennison, but the bishop of Pittsburgh has told him to "stay at his post" without a license--knowing that any trial for this breach of canons will be held in Pittsburgh.

(Duncan would not have been allowed by the canons to accept Moyer, because Moyer of course does not have proper letters dimissory from Bishop Bennison. Instead, they chose to have Moyer accepted by an overseas Anglican jurisdiction, and then transferred back to Duncan. Presumably that overseas jurisdiction does not require letters dimissory as does the Episcopal Church. Is this kind of end-run around the canons tolerable?)

Now, let it be said that I am an ally of Bishop Bennison. I've met him in person, and am impressed with his deep Christian faith and his outstanding scholarship and pastoral good sense. In the instant case, however, I am convinced that his pastoral good sense led him astray. I consider it to be true, without qualification, that disciplining David Moyer needed to happen--indeed, should have happened ten years ago when he began his schism--and that failure to do so has harmed the church considerably.

The arch-conservatives claim the sole mantle of orthodoxy, and claim any attempt to discipline them for their manifest violations of the canons of the church--to which they have vowed obedience--amount to persecution and intolerance. Nothing could be further from the truth. They are to be disciplined when and if they presume to exclude bishops from visitations, deem themselves the judge of the orthodoxy of their bishop rather than vice versa, and refuse to obey canonical process.

It is not intolerant to do what Bishop Bennison was trying to do: allow a parish to be different in worship and theology, provided it participates in the life of the diocese and remains in communion with its bishop. Would the Bishop of Ft. Worth permit a liberal parish in his diocese to do the things that were done in Accokeek or Rosemont?

But the mechanism Bennison chose to discipline Moyer, while clever, has now probably backfired horribly. What should have happened?

Moyer should have been presented for violation of the rubrics (in refusing the bishop his prerogative to preside at the Eucharist), violation of the canons (in refusing pastoral visitations and failing to present candidates for confirmation), a violation of ordination vows (in disobeying a good-form pastoral direction of the bishop), and conduct unbecoming a member of the clergy (for his accusations and claims about episcopal authority, which do prejudice the good order of the church).

After presentment, a trial should have been scheduled, proceeded to a judgment (presumably against Moyer), and a sentence of deposition. The process would be a few months longer than the six months term of Canon IV.10--but Bennison rightly values patience, and so this is no obstacle.

At the outcome of such a trial, Moyer would have had the right to appeal to the Province III Court of Review. Assuming the trial were to have been held in good form, the Provincial Court would have affirmed the judgment. There would be nowhere for Moyer to turn in wriggling out of appropriate disciplinary action.

Why didn't Bennison do this? He said on March 1 that he chose Canon IV.10 because it allowed for "patience". I think the real reason is because he is allergic to trials. Trials, and process, seem like horrible evil things to the tolerant side of the church--the side that Bennison is entirely on. We remember the trial of Walter Righter, and we consider that trials are a nasty, evil, horrible thing, to be avoided no matter what.

The Presiding Bishop has said that "the difficulties between the parties are at heart pastoral, and therefore resolution could have been found without recourse to canons and rubrics." The great mistake in the PB's impulse is that somehow canons and rubrics are inimical to pastoral resolution. Rather, I believe that by providing clear and unequivocal standards they can greatly facilitate a pastoral resolution. The approach of "don't use the canons, for God's sake!" has been tried for ten years in Rosemont. Exactly how long should it take to expect Moyer to live up to his ordination vows?

This approach to canons is all wrong. Trials are a great blessing. Just trials produce closure, can settle individual issues (even if not broad political ones), and guarantee to all concerned the ability to participate fully and fairly. The trial of Bishop Walter Righter, I contend, was actually a good thing for the church. For the first time, we have a clear statement of the reach of the heresy canon; we have a judicial confirmation that a bishop may ordain a gay man without violating the discipline of the church, and a whole category of unpleasant schismatic noises from the right wing of the church has been effectively dismissed, if not silenced.

The Bishop Pike affair was horribly mucked up by the then Presiding Bishop's fear of process and trials. Instead of a trial, we got a process vastly uglier, with solidly hurt feelings on all sides, no resolution whatsoever, and everyone convinced that all standards of due process had been ignored.

If a proper trial course had been followed with Moyer, the result now would be entirely different. The claim that Canon IV.10 has been "misused" would be entirely obviated. Indeed, Canon IV.10 does seem to be unfair, and the manner in which Bennison used it is highly unusual. I don't believe Bennison actually violated the terms of the canon, but I do think that it was imprudent to use it in this fashion, seemingly to avoid the "unpleasantness" of a trial.

The situation with regard to the earnest schismatics of the Episcopal Church is extreme, and requires care. It does not require an allergy to anything unpleasant. The situation already is unpleasant, and papering it over in the hopes that we could all just get along is not going to help--it will only hurt.

We have now in the Episcopal Church a group of clergy--and more worrisome, bishops--who believe that they have the simple and unequivocal right to disregard any and all canons if they believe it necessary to uphold their own singular vision of orthodoxy. In one sense, they are right--but not if they wish to remain within the Church. If the Church's canons bind them to what they can only view as heterodoxy, they have a moral obligation to leave the Church's discipline entirely, and not to continue to violate their own vows--taken before God.

And now there is a curate in place at Good Shepherd, Rosemont, who has been instructed by his bishop, the Bishop of Pittsburgh, to act in violation of the canons. Leaving aside what it means when a Bishop explicitly counsels a priest to violate his own ordination vows, why is this even possible? Why is this curate canonically resident in the Diocese of Pittsburgh at all? Canonical residence has been treated as a "plum" by most bishops. Clergy who move into a diocese are required to stay several years before letters dimissory are accepted, in some cases, non-parochial clergy are told that letters dimissory will not *ever* be accepted unless they have a pastoral cure. The only exceptions are the canonical requirement that settled priests in charge must have their letters accepted promptly.

This practice has been motivated by understandable concerns. But in the case of the curate at Good Shepherd, Rosemont,
Good Shepherd Rosemont
we will now see its ill effects. The Bishop of Pennsylvania will have essentially no opportunity to issue canonical process against him, which will surely need to happen if the curate does not leave. He can charge him, but the Diocese of Pittsburgh will hold the trial. When the Bishop of Pittsburgh (who has already injected himself into the situation) refuses to issue any sentence other than admonition, what is to happen?

What needs to happen:

Canon IV.10 needs to be repealed. Even in the circumstances which it was originally contemplated to cover, there is no need for a special procedure. If a priest is entirely nonresponsive to a normally-presented charge of abandoning the church's communion (something already presentable for under Canon IV.1), then the canons for trial procedure allow for summary process anyway.

Canon IV.1 needs to be used by bishops for the purposes it contemplates: which include disobedient clergy who have persistently and mendaciously violated their ordination vows and the discipline of the church.

Dioceses need to require long-term physically resident clergy, and all clergy in ecclesiastical employment for non-time-limited terms, to be canonically resident. Canonical residence should not be regarded as a plum, a thing to be jealously guarded, but as a thing to be *required*, because only in this way can the diocese effectively exercise its pastoral authority. Bishops are reluctant to have large numbers of non-stipendiary clergy voting in convention who have only a tenuous relationship to the diocese. The solution here is first, to simply state that such clergy, while canonically resident, are not entitled to vote in convention (as is the case in the Diocese of Los Angeles and many others). Second, clergy not in ecclesiastical employment who have only a tenuous connection to the structure of the church should be required to increase their participation, or seek release from their vows of ordination, rather than persist in a poorly motivated ecclesiastical limbo.

And what about the root problem: parishes that refuse pastoral visitations of the bishop? There is, as it happens, a procedure! Yes, once again, the fear of process has caused bishops and standing committees to not bother actually following appropriate process, thinking that this is nasty and mean, and instead, things muck up quite horribly. Canon III.24.4(c) provides a process for a non-judicial conciliation of such disagreements. Bennison--or rather, his predecessor--should have asked for such a panel of conciliation *seven years* ago.

It's time to stop being allergic to process and to trials. It's time to face, squarely, that disobedient clergy need to be given the option of staying--obediently--or leaving.

You are welcome to submit your essays for consideration for this series. Send them to Identify yourself by name, snail address, parish, and other connections to the Episcopal Church. Please encourage others to do the same.


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