Railroaded! (updated)

The blogosphere is buzzing with stories and comments indicating that the deposition of the Rt. Rev. John David Schofield and the Rt. Rev. William J. Cox (about whom I wrote in my last post) may have been out of order; that is, the vote did not actually comply with the requirements of the Constitution and Canons of the Episcopal Church.

I am going to reproduce the most salient comments I have run across because this story needs to be documented as many places as possible. The most thoughtful thread on the subject is the one at Stand Firm entitled, Let’s Get to the Procedural Bottom of This.

Canon IV.9. states that there are requirements that must be met before one even gets to the point of a vote on deposition of a bishop. The first of these requirements is that a Review Committee of the House of Bishops must conclude that there are grounds for the deposition. Next, the Presiding Bishop must get the consent of the three most senior bishops with jurisdiction (i.e., active diocesan bishops). According to a report in The Living Church, "One of the three senior bishops with jurisdiction confirmed to The Living Church that his consent to inhibit Bishop Cox was never sought."

This, by itself, is sufficient to indicate that the deposition of Bishop Cox is null and void. I do not know whether the consent of the three most senior bishops was sought in the case of Bishop Schofield; but I have seen no reports to indicate that it was; and such a request of the three most senior bishops would have been a newsworthy event if it occurred.

The question as to whether the vote to depose Bishops Cox and Schofield was legal hinges on Article 1(2) of the Constitution, Canon I.2.4(4), Canon III.12.8(d), and Canon IV.9.

Section 1 of Canon IV.9 states that once the three senior bishops have given consent, the Presiding Bishop shall inhibit the bishop in question “…until such time as the House of Bishops shall investigate the matter and act thereon.” Section 2 contains the requirements for the actual deposition. If the inhibited bishop does not recant, “…it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry.”

Section 2 of IV.9 also sets forth what constitutes consent by the House of Bishops. Specifically it declares that the consent must be “…by a majority of the whole number of Bishops entitled to vote.” What does this phrase mean? Some have suggested that it means simply a majority of bishops at the meeting in question. However, Canon III.12.8(d) makes clear what language is employed when a simple majority of those present is required, and that language is “by a majority of those present.” Article 1(2) of the Constitution specifies what “the whole number of Bishops entitled to vote” means when it states:

Each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assistant Bishop, and every Bishop who by reason of advanced age or bodily infirmity, or who, under an election to an office created by the General Convention, or for reasons of mission strategy determined by action of the General Convention or the House of Bishops, has resigned a jurisdiction, shall have a seat and a vote in the House of Bishops.

Article 1(2) also specifies the quorum necessary for House of Bishops meetings as “[a] majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.”

Commenter "jamesw," writing on the Stand Firm blog, cites these same portions of the Constitutions and Canons and then does some very helpful math to show that "it would take 148 votes of consent for a valid deposition. This number was clearly NOT achieved if the Living Church’s figure of 131 attendees [present at the time the vote was taken] is correct."

Then on the Stand Firm thread Commenter "Chancellor" adds this very helpful history of the applicable Canon:

A little history may be helpful here. From White and Dykman (1981 ed.), Vol. II, pp. 1079-80 (with emphases added):

The first canonical enactment on the subject of the “Abandonment of the Communion of the Church by a Bishop” was Canon 1 of 1853, which read as follows:

In all cases where a Bishop, Presbyter or Deacon of this Church . . . has abandoned her Communion . . . either by an open renunciation of the Doctrine, Discipline and Worship of this Church, or by a formal admission into any religious body not in Communion with the same: such Bishop, Presbyter or Deacon . . . shall thereupon be pronounced deposed; . . . and if a Bishop, by the Presiding Bishop, with the consent of the majority of the Members of the House of Bishops . . . .

This canon was enacted to meet the case of Bishop Ives of North Carolina, who, on December 22, 1852, renounced the communion of the Protestant Episcopal Church and submitted himself to the authority of the Church of Rome. No canon on this subject had before been enacted, as there had been no need thereof . . . .

It was recognized that the canon, hastily enacted to meet an emergency, was far from perfect . . . . In the revision of the canons by [the] Convention [of 1859], Canon 1 of 1853 was made Title II, Canon 8, and amended to read as follows:

If any Bishop . . . abandon the Communion of this Church, either by an open renunciation of the doctrine, discipline, and worship of this Church, or by formal admission into any religious body not in communion with the same, it shall be the duty of the Standing Committee of the Diocese to make certificate of the fact to the Senior Bishop . . .

Notice shall then be given to said Bishop . . . that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, he will be deposed from the Ministry of this Church.

And if said declaration be not made within six months as aforesaid, it shall be the duty of the Senior Bishop with the consent of the majority of the House of Bishops, to depose from the Ministry the Bishop so certified as abandoning . . . .

It has thus been the case ever since the first version of the “abandonment” canon was adopted that a majority of the House of Bishops was required to consent to the deposition of a Bishop.

"Chancellor" continues in another comment:

Continuing with the history of the Abandonment Canon from White and Dykman (1981 ed.), Vol. II, pp. 1080-82 (with emphases added):

[The] Convention [of 1874], confronted by the renunciation of the communion of the Church by another bishop, and realizing certain defects in the canon, amended Title II, Canon 8, to read as follows:

If any Bishop . . . abandon the Communion of this Church, either by an open renunciation of the doctrine, discipline, and worship of this Church, or by a formal admission into any religious body not in communion with the same, or otherwise, it shall be the duty of the Standing Committee of the Diocese of said Bishop to make certificate of the fact to the Presiding Bishop . . .; and the Presiding Bishop with the consent of the three Bishops next in seniority, shall then suspend said Bishop from the exercise of his office and Ministry until such time as the House of Bishops shall consent or refuse to consent to his deposition . . .
Notice shall then be given to said Bishop . . . that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, and shall demand a trial, he will be deposed from the Ministry. And if such declaration be not made within six months, . . . it shall be the duty of the Presiding Bishop to convene the House of Bishops, and if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent, the said Presiding Bishop . . . shall proceed to depose from the Ministry the Bishop so certified as abandoning . . .

On November 10, 1873, Bishop Cummings, Assistant Bishop of Kentucky, addressed a letter to the Presiding Bishop, declaring his renunciation of the ministry of this Church. The Presiding Bishop, without calling a meeting of the House of Bishops, obtained the written consent of a majority of the bishops entitled to seats in the House of Bishops, and then proceeded to depose the said Bishop Cummings on June 24, 1874, and pronounced and recorded said deposition in the presence of two bishops. It was questioned whether the consent of the bishops so obtained was regular . . .
In order to remove any doubt as to the canonical deposition of Bishop Cummings, when the House met in General Convention a few months later, [a resolution was passed] by that house [consenting to, ratifying and confirming the deposition] . . .

Thus the changes made by the 1874 Convention were to remedy the defects in the previous version of 1859 (quoted in my previous post) that were shown up by the case of Bishop Cummings.

The sequence of abandonment---certification---suspension (inhibition)---period to deny abandonment---convening House of Bishops to vote on deposition if no denial, has been followed in the changes to this canon made ever since. Moreover, the requirement for a full majority of those entitled to vote in the House of Bishops to consent to the deposition before it can take effect has been maintained consistently since the first version of the canon was enacted in 1853. In 1904, the 1874 language was changed from “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops” to read as it does at present: “a majority of of the whole number of Bishops entitled to vote”, and has remained the same ever since.

Thus [Presiding Bishop's Chancellor] David Booth Beers is all wet. An historical analysis of the canons easily puts to rest the meaning of the phrase “a majority of the whole number of Bishops entitled to vote”: it means a majority of all the Bishops then having seats in the House and entitled to vote on matters coming before it. It has meant that ever since the first version of the canon was adopted in 1853.

Even commenters on the liberal side of the aisle have commented that the vote AND the subsequent of the legality of the vote by the PB's Chancellor David Booth Beers is to be discounted. D.C. Toedt, on his blog, Questioning Christian, had this to say:

I'm sorry, but I don't think Mr. Beers' present-and-voting rationale is at all persuasive. Article I.2 of the Episcopal Church constitution specifies which bishops are "entitled to vote" at meetings of the House of Bishops:

Sec. 2. Each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assistant Bishop, and every Bishop who by reason of advanced age or bodily infirmity, or who, under an election to an office created by the General Convention, or for reasons of mission strategy determined by action of the General Convention or the House of Bishops, has resigned a jurisdiction, shall have a seat and a vote in the House of Bishops.

A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.

This alone suggests pretty strongly that the Schofield deposition could not proceed by a vote of merely a majority of those present at the meeting.

Read the whole thread, including the updates, at Questioning Christian. It is very informative.

One final comment on my part: Accepting the opinion of the Chancellor to the Presiding Bishop, David Booth Beers, as to the validity of this vote is like letting the attorney for the prosecution serve as the judge, jury, and appeals court judge in this matter. Bishops Cox and Schofield are godly men who are more focused on God's mission in their lives than on fighting with bureacrats in a corrupt and dying ecclesiastical structure. They may well choose not to fight this matter, and that is their prerogative. I personally believe that, if they do not fight, others ought to do so as a simple matter of justice (which is why I have taken the time to document the salient points here). Because, as I think of what has been done to these fine men, one term stands out in my mind: "RAILROADED!"

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UPDATE: I wholeheartedly endorse Sarah Hey's proposal Episcopal Flagplanters: An Action Idea Regarding the Non-Canonical Actions of the HOB. TEC's leadership will only be accountable if we hold them to accountability.