Official Response to the Presentment
Official Response to the Presentment
Send mail to: lcrew@andromeda.rutgers.edu
THE PROTESTANT EPISCOPAL CHURCH
IN THE UNITED STATES OF AMERICA
IN THE COURT FOR THE TRIAL OF A BISHOP
________________________________________________
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JAMES M. STANTON, BISHOP OF DALLAS, }
et al., }
PRESENTERS, }
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v. }
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THE RT. REV. WALTER C. RIGHTER, }
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RESPONDENT. }
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_______________________________________________________________________
BRIEF OF RESPONDENT IN SUPPORT OF ANSWER TO PRESENTMENT
_______________________________________________________________________
Respectfully submitted,
MICHAEL F. REHILL
Of Counsel and Chancellor, Diocese of Newark
On the Brief:
Counsel for Respondent
WILLIAM C. BULLITT The Rt. Rev. Walter C. Righter
Chancellor, Diocese of Pennsylvania Retired Bishop of Iowa
JOHN K. CANNON
Chancellor, Diocese of Michigan
PAUL E. COONEY
Chancellor, Diocese of Washington
RICHARD J. HOSKINS
Chancellor, Diocese of Chicago
Dated: May 10, 1995
TABLE OF CONTENTS
PAGE
INTRODUCTORY STATEMENT ........................................ 1
SUMMARY OF THE ARGUMENT ........................................2
PRIOR PROCEEDINGS ..............................................3
THE PRESENTMENT ................................................3
THE ANSWER TO THE PRESENTMENT ..................................8
ARGUMENT
I. WHETHER IT IS "IMPERMISSIBLE" TO ORDAIN A
NON-CELIBATE HOMOSEXUAL PERSON IS NOT A
QUESTION OF DOCTRINE .......................................9
A. DOCTRINE CONCERNS FUNDAMENTAL MATTERS OF
THE SUBSTANCE OF THE CATHOLIC FAITH .................. 9
1. THE DOCTRINE OF THE EPISCOPAL CHURCH IS
FOUND IN HOLY SCRIPTURE, THE APOSTLES'
AND NICENE CREEDS, AND THE BOOK OF
COMMON PRAYER ...................................10
2. THE DOCTRINE OF THE EPISCOPAL CHURCH IS
NOT THE SAME THING AS ITS MORAL AND
SOCIAL TEACHING .................................13
3. THE DOCTRINE OF THE EPISCOPAL CHURCH IS NOT
ESTABLISHED BY RESOLUTIONS OF GENERAL
CONVENTION OR THE HOUSE OF BISHOPS ..........14
B. QUALIFICATIONS FOR ORDINATION ARE PART OF
THE DISCIPLINE OF THE CHURCH ..............................16
II. TO ACCEPT THE ARGUMENT OF THE PRESENTMENT WOULD
BE TO HOLD THAT ALL THOSE BISHOPS WHO SIGNED THE
STATEMENT OF CONSCIENCE IN RESPONSE TO THE 1979
GENERAL CONVENTION RESOLUTION, ALL THOSE BISHOPS
WHO VOTED AGAINST THE 1990 RESOLUTION OF THE
HOUSE OF BISHOPS, AND ALL THOSE BISHOPS WHO SIGNED
THE 1994 "STATEMENT OF KOINONIA" WOULD BE SUBJECT
TO PRESENTMENT FOR VIOLATIONS OF CANON IV.1.1(2)........18
III. THE ORDINATION OF THE REV. BARRY STOPFEL TO THE
DIACONATE IN COMPLIANCE WITH THE CANONS AND IN
ACCORDANCE WITH THE WORSHIP OF THE EPISCOPAL
CHURCH WAS NOT A VIOLATION OF BISHOP RIGHTER'S
ORDINATION VOWS. .......................................19
CONCLUSION ..................................................22
APPENDICES
A. Resolution A053sa, General Convention 1979
B. Statement of Conscience In Response to Resolution A053sa
C. Statement of Presiding Bishop and His Council of Advice,
February 20, 1990
D. Resolution B-1a, House of Bishops, September 18, 1990
E. Statement of Koinonia, General Convention 1994
F. Bishop Righter's Ordination Vows, January 12, 1972
G. Statement of the Presiding Bishop, 1995
INTRODUCTORY STATEMENT
The Rt. Rev. Walter C. Righter, retired Bishop of Iowa, stands
accused in a Presentment signed by the Bishops of Dallas, Florida,
San Joaquin, Central Florida, Texas (since retired), Eau Clare, Fort
Worth, Quincy, Rio Grande and West Tennessee under Canon
IV.1.1(2) of "holding and teaching publicly or privately, and advisedly,
doctrine contrary to that held by this Church" and under Canon
IV.1.1(6) of "violation of ordination vows". Bishop Righter has
submitted an Answer to the Presentment, and this Brief is submitted
on behalf of Bishop Righter pursuant to the provisions of Section 2 of
Canon IV.4(b).
Under the provisions of Section 2 of Canon IV.4(b),
"The written consent of one-fourth of the Bishops
qualified to vote in the House of Bishops shall be
required before the proceeding may continue [to trial]
as provided by Canon. In case one-fourth of all the
Bishops entitled to act in the premises shall not consent
within the period of three months from the date of
notification to them by the Presiding Bishop of the
proceeding, the Presiding Bishop shall declare the
presentment dismissed." Bracketed text added.
The Presentment is a gravely serious matter in the life of The
Episcopal Church. As each Bishop prayerfully considers whether to
consent to proceeding with a trial on the Presentment, consideration
should first be given to the statement contained in the letter
transmitting the Presentment to the Presiding Bishop,
"We have chosen to make this Presentment against
Bishop Righter because his action is the least recent
ordination within the current five year statute of
limitation. Should this matter be set for trial, it is our
intention to file Presentments against the next most
recent offender, and so on, until we are current in
bringing to trial all those who have knowingly violated
the teaching of the Church."
and to the statement given by the Presiding Bishop at the Special
Meeting of the House of Bishops at Kanuga on March 3, 1995,
"My sisters and brothers, this presentment is not the
way ... This presentment can only disrupt us and divert
us from the path that we are on. ... I pray we will never
be required to pay what this could cost us as a church,
not only for now but into the time of the next Presiding
Bishop. I pray we will never be required to experience
one presentment, and then another, and another. ... This
is not a debating society or a court of law. This is a
community of God's people. We have another way. To
that way, I commend you. ... I pray that this house will
realize that this is not the way."
This Brief is respectfully and faithfully submitted to urge that the
members of the House of Bishops not consent to proceeding to trial
on this Presentment.
SUMMARY OF THE ARGUMENT
The Presentment is based on a misunderstanding of the Doctrine
of The Episcopal Church and the sources of such Doctrine.
Notwithstanding that the only recognized sources of the Doctrine of
The Episcopal Church are Holy Scripture, the Apostles' Creed, The
Nicene Creed and the Book of Common Prayer (the latter alone
being recognized in the Canons of this Church as the repository of the
only "authorized formularies of this Church"), the Presentment
contends that the Doctrine of this Church is found in resolutions and
"teachings" of the House of Bishops. Based upon that false premise,
the Presentment claims that it is the Doctrine of The Episcopal
Church that non-celibate homosexual persons may not be ordained.
The Presentment charges Bishop Righter with two acts which it
alleges constitute heresy ("holding and teaching doctrine contrary to
that held by this Church") in violation of Canon IV.1.1(2).
Specifically, the Presentment charges (a) that on September 18, 1990,
Bishop Righter dissented and voted against a resolution of the House
of Bishops [along with 75 other Bishops] regarding a 1989 ordination
by the Bishop of Newark; and (b) that on August 25, 1994, at the
General Convention in Indianapolis, Bishop Righter [along with 70
other Bishops] signed "A Statement of Koinonia."
The Presentment then states that on September 30, 1990 Bishop
Righter, while Assistant Bishop of Newark, ordained to the diaconate
the Rev. Barry L. Stopfel, a homosexual man living in a committed
relationship of long standing with another, and alleges that such
ordination was "in violation of the Bishop's ordination vow to conform
to the doctrine of the Church".
There is no DOCTRINE of The Episcopal Church on the issue of
whether it is permissible or impermissible to ordain non-celibate
homosexual persons.
To apply the words of the Court in the only heresy trial of any
Bishop in The Episcopal Church to the issues raised in the
Presentment, there is no article of faith stating that it is impermissible
to ordain a non-celibate homosexual person which must be accepted
by all members of the Church. As the House of Bishops
acknowledged in the Statement issued in September 1990 on the issue
of "ordination to Holy Orders of sexually active homosexual men and
women" ... "we are not of a single mind..." Journal, 1991, p.517. By
definition, an issue on which there are such widely divergent views
cannot constitute the Doctrine of the Church.
PRIOR PROCEEDINGS
At the meeting of the House of Bishops at the General Convention
in Phoenix in 1991, a motion was made to "censure" Bishop Righter
for the Stopfel ordination (and to censure the Rt. Rev. Ronald H.
Haines, Bishop of Washington, D.C. for the ordination of a non-
celibate homosexual woman to the priesthood). Journal, 1991,
pp.321-323.
The House of Bishops, after lengthy, often emotional debate, chose
not to act on that motion, but to adopt a substitute resolution calling
for further study of the ordination issue and to refer the matter to the
Presiding Bishop and his Council of Advice for consideration by the
House of Bishops at an interim meeting of the House.
THE PRESENTMENT
The Presenters claim that "`doctrine' is the teaching of the Church
as determined by the formularies of the Church, including
declarations by the House of Bishops." Based upon that
mischaracterization of the "formularies of the Episcopal Church" and
its sources, the Presenters reach the false conclusion that "The
Teaching or doctrine of The Episcopal Church ... is that ... it is not
permissible to ordain a practicing homosexual." Brief, p.7.
Count I: Heresy
In "Count I", Bishop Righter is charged with heresy ("holding and
teaching ... doctrine contrary to that held by this Church") in violation
of Canon IV.1.1(2). Specifically, the Presentment alleges are (a) that
while Assistant Bishop of Newark in 1990, Bishop Righter voted
against a Resolution of the House of Bishops regarding an ordination
by the Bishop of Newark; and (b) that Bishop Righter signed "A
Statement of Koinonia" at General Convention in 1994.
The September 1990 Resolution
The first act of heresy allegedly occurred on September 18, 1990,
when Bishop Righter, while present in the House of Bishops in
Washington, D.C., "dissented from Resolution [No. B-1a] and voted
against affirming the February [20, 1990] Statement" [of the Presiding
Bishop and his Council of Advice]. Presentment, p.5. Bracketed text
added.
The proceedings of the House of Bishops on September 18, 1990
are found in the Journal of the General Convention 1991 at pages
498-503. The Journal indicates that on a roll call vote, only 80 of the
158 Bishops present voted in favor of adopting the resolution. A total
of 76 Bishops, including Bishop Righter, to use the language of the
Presentment, "dissented from the Resolution and voted against
affirming the February Statement". Two Bishops, including the
Bishop of Newark, who was the subject of the resolution, abstained.
Among those Bishops who, like Bishop Righter, "dissented from the
Resolution and voted against affirming the February Statement" were
The Presiding Bishop and five of the nine members of the Council of
Advice who had originally signed the February Statement. See
Appendix D for a list of those Bishops who joined with Bishop Righter
in opposing Resolution B-1a.
The Presentment quotes a portion of Resolution A053sa adopted
by the General Convention in Denver in 1979 (hereinafter "the 1979
Resolution"), and then quotes a portion of the February 1990
Statement, quoting an even smaller portion of the 1979 Resolution.
Presentment, pp.3-5. See Appendix A for the complete text of both
the 1979 Resolution and Appendix C for the complete text of the
Statement of February 1990.
The 1979 Resolution did not purport to set forth the "Doctrine" of
the Church, nor did it state that a non-celibate homosexual person
cannot be properly ordained or that such an ordination is not
permitted. That resolution was merely advisory as to the
appropriateness of ordination of a non-celibate homosexual or
heterosexual person engaged in sexual relations outside of marriage
based upon a reaffirmation of "the traditional teaching of the Church
on marriage, marital fidelity and sexual chastity as the standard of
Christian morality."
In the 1979 Resolution, General Convention "recommend[ed] to
Bishops, Pastors, Vestries, Commissions on Ministry, and Standing
Committees", each of whom has responsibility under the Canons to
select and approve persons for ordination, a number of
"considerations" as those persons, "continue to exercise their proper
canonical functions." Among those "considerations" which General
Convention "recommended" was the statement that because
"candidates for ordination are expected to conform" to "the traditional
teaching of the Church on marriage, marital fidelity and sexual
chastity", "we believe that it is not appropriate for this Church to
ordain a practicing homosexual, or any person who is engaged in
heterosexual relations outside of marriage." Journal, 1979, pp.B-96-
97. Bishop Righter voted in favor of the adoption of Resolution
A053sa. Journal, 1979, p.B-95.
However, in response to the adoption of the 1979 Resolution,
twenty Bishops issued a Statement which recognized that the
Resolution was neither prescriptive nor binding, but only made
recommendations as to various considerations in the ordination
process. The Statement of Conscience, quoting from the ordination
vows of a Bishop in The Book of Common Prayer, provided in part as
follows:
"Taking note, therefore, that this action of the House
is recommendatory and not prescriptive, we give notice
as we are answerable before Almighty God that we
cannot accept these recommendations or implement
them in our Dioceses insofar as they relate or give
unqualified expression to Recommendation 3. To do so
would be to abrogate our responsibilities of apostolic
leadership and prophetic witness to the flock of Christ,
committed to our charge; and it would involve a
repudiation of our ordination vows as Bishops, in the
words of the new Prayer Book, boldly [to] proclaim and
interpret the Gospel of Christ, enlightening the minds
and stirring up the conscience of [our] people, and to
encourage and support all baptized people in their gifts
and ministries . . . and to celebrate with them the
sacraments of our redemption; or in the words of the
old, to be to the flock of Christ a shepherd, not a wolf.
Our appeal is to conscience, and to God. Amen."
Emphasis and brackets in original.
The full text of the 1979 Statement is set forth in Appendix B. Among
the twenty Bishops who issued that Statement was the then Bishop of
Hawaii and now Presiding Bishop. An additional twenty-three
Bishops signed the Statement in 1988. Journal, 1988, pp.198-199.
The only portion of the 1979 Resolution quoted in the Statement
of the Presiding Bishop and his Council of Advice of February 20,
1990 was three paragraphs setting forth the "considerations" which
were "recommend[ed]" to Bishops, Pastors, Vestries, Commissions on
Ministry, and Standing Committees", as those persons, "continue to
exercise their proper canonical functions."
The February 1990 Statement did not set forth the "Doctrine" of
the Church. It did not state that a non-celibate homosexual person
cannot be properly ordained. It did not state that such an ordination
is not permitted or that the December 1989 ordination violated the
Doctrine of the Church. On the contrary, the February 1990
Statement was a statement of "disassociation" from the action of the
Standing Committee and Bishop of Newark in carrying out an
ordination in December 1989 which, it stated, threatened the "unity"
and "good order" of the Church, and concluded by calling its readers
"to join with us in recommitting ourselves to the unity of the church ..."
It is also noteworthy that following the adoption of Resolution B-
1a by the House of Bishops in 1990 "affirming and supporting" the
February 1990 Statement, the House of Bishops adopted a Resolution
(the introduction of which was approved by a vote of 102-23), which
referred the Statement to the Commission on Canons "inasmuch as
the statement raises questions about the authority of General
Convention resolutions", and to the Commission on Human Affairs
"inasmuch as the appropriateness of ordaining to the priesthood
openly gay persons continues to be a vexing issue within the church."
Journal, 1991, p.503.
Moreover, the very next day, the House of Bishops adopted a
Statement which provided in part as follows:
"We begin by acknowledging that on the issues of
human sexuality wide diversity and confusion marks our
Church and most Christian communions, to say nothing
of society at large. Two issues in particular rise to the
surface - the affirmation of those living in faithful same-
sex relationships and the ordination to Holy Orders of
avowed and sexually active homosexual men and
women.
"We are not of a single mind in our understanding of
the demands of Holy Scripture, of faithful obedience to
tradition, or informed awareness of the actual lives and
choices faced by homosexual men and women. . . ."
Journal, 1991, p.517.
Although the Presenters argue that one should look to
"declarations of the House of Bishops" as determining the Doctrine of
The Episcopal Church, they cite no resolution or other "declaration"
of the House of Bishops which states that it is the Doctrine of the
Church that a non-celibate homosexual person cannot be properly
ordained or that such an ordination is not permitted. In any event, to
hold that voting in the minority in the House of Bishops constitutes a
heretical dissent from the "declarations of the House of Bishops"
would be to create a very dangerous precedent indeed.
The Koinonia Statement
The Presentment states that the second act of heresy occurred
when, while present in the House of Bishops at General Convention
in Indianapolis, on August 25, 1994, Bishop Righter "joined in the
signing of `A Statement of Koinonia', made by the Rt. Rev. John S.
Spong, in which Respondent acceded to the following statement:
"We pledge ourselves to ordain only those persons
whom the testing and screening process reveals to be
wholesome examples to the flock of Christ. But let
there be no misunderstanding, our lives and our
experience as bishops have convinced us 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, pp.5-6.
The "Statement of Koinonia", signed by Bishop Righter at the
General Convention in Indianapolis in 1994, was also signed by 70
other Bishops. If the Presenters' position were to be sustained, all
those Bishops would themselves be subject to presentment and trial
seriatim for "heresy". See Appendix E for a complete text of the
Statement and a list of the signatories.
Count II: The 1990 Ordination
In "Count II", Bishop Righter is charged with violation of his
"ordination vows" under Canon IV.1.1(6) for ordaining to the
diaconate a homosexual man living in a committed relationship with
another. The Presenters allege that ordination was "in violation of the
teaching of the Church," and constituted "an act in violation of his
ordination vows to `conform to the Doctrine ... of the ... Church.'"
Presentment, p.7. The Presenters contend that the declaration of
belief and conformity is the "ordination vow" referred to in Canon
IV.1.1(6).
A distinction must be made between the declaration of belief and
conformity required of every person ordained in this Church, whether
Deacon, Priest or Bishop and the vows or promises made by each
ordinand at his or her ordination. Similarly, a distinction must be
made between a violation of Canon IV.1.1(2) (holding and teaching
Doctrine contrary to that held by The Episcopal Church) and Canon
IV.1.1(6) (violation of "ordination vows"). The declaration of belief
and conformity is made in the ordination rite at "The Presentation."
The "ordination vows" referred to in Canon IV.1.1(6) are the vows
taken by the ordinand during the ordination at "The Examination" and
which are referred to therein as "promises." Book of Common Prayer,
p.517f.
The erroneous argument advanced by the Presenters is that should
a Bishop knowingly ordain a non-celibate homosexual man or woman,
that act would be in violation of the Bishop's ordination vow "to
conform to the doctrine of the Church". Brief, p.7. Failure to
conform to the "Doctrine" of The Episcopal Church is presentable
only under Canon IV.1.1(2) ("Holding and teaching publicly or
privately, and advisedly, any doctrine contrary to that held by this
Church."), and there is no Doctrine of The Episcopal Church on the
issue of whether it is permissible or impermissible to ordain non-
celibate homosexual men or women.
THE ANSWER TO THE PRESENTMENT
Bishop Righter denies holding and teaching publicly or privately,
and advisedly, any Doctrine contrary to that held by this Church.
Bishop Righter affirms, without reservation or exception, the Doctrine
of The Episcopal Church.
Bishop Righter was in attendance at the General Convention in
Denver in 1979 when Resolution A053sa was adopted. Bishop
Righter voted in favor of the adoption of that resolution.
Bishop Righter, along with 75 other Bishops, including the
Presiding Bishop, dissented from House of Bishops Resolution B-1a,
and voted against affirming the February 20, 1990 Statement of the
Presiding Bishop and his Council of Advice.
While present in the House of Bishops at General Convention in
Indianapolis, on August 25, 1994, Bishop Righter, together with 70
other Bishops, joined in the signing of "A Statement of Koinonia."
Bishop Righter does not deny the allegation in the Presentment
that on September 30, 1990, while serving as Assistant Bishop in the
Diocese of Newark, he ordained the Rev. Barry L. Stopfel to the
diaconate, and that, at the time of such ordination, Bishop Righter
was aware that Barry Stopfel was a homosexual man living in a non-
celibate committed relationship of long standing with another. Bishop
Righter denies that such ordination violated his ordination vows.
At the time of his ordination to the diaconate by Bishop Righter,
the Rev. Barry Stopfel had the support of a congregation with which
he had worked and who came to trust in his ministry, and had satisfied
all of the canonical requirements for such ordination, including
(a) certification from the Rector and Vestry of the Parish of which
Barry Stopfel was a member certifying,
"After due inquiry, we are well assured and believe that
Barry L. Stopfel, for the last three years, has led a sober,
honest and godly life, and is loyal to the Doctrine,
Discipline and Worship of this Church, and does not
hold anything contrary thereto. And moreover, we
think Barry L. Stopfel a person worthy to be admitted to
the Sacred Order of Deacons."
(b) the resolution of the Standing Committee of the Diocese of
Newark recommending that Barry Stopfel be ordained to the
Diaconate, testifying that,
"Barry Lee Stopfel has lived a sober, honest and godly
life, and is loyal to the Doctrine, Discipline and
Worship of this Church, and does not hold anything
contrary thereto," and
(c) the approval of the Bishop of Newark to such ordination.
Moreover, the aforesaid testimonial of the Standing Committee, in
addition to the canonically required testimonial, included the
following language,
"We find him fully qualified and do recommend him to
the Bishop for Ordination to the DIACONATE in June,
1990, unless the Presiding Bishop states to us in writing,
upon legal advice of his Chancellor, that such
Ordination would violate the Canons of The Episcopal
Church."
The Bishop of Newark delayed the diaconal ordination until after
the September 1990 meeting of the House of Bishops at the request of
the Presiding Bishop, as a commitment to collegiality; and, to avoid
unnecessary complications, he chose not to perform the ordination
himself. As a result, Bishop Righter, then the Assistant Bishop of
Newark, was called upon and agreed to perform the ordination.
ARGUMENT
I. WHETHER IT IS "IMPERMISSIBLE" TO ORDAIN A NON-CELIBATE
HOMOSEXUAL PERSON IS NOT A QUESTION OF DOCTRINE.
A. DOCTRINE CONCERNS FUNDAMENTAL MATTERS OF THE
SUBSTANCE OF THE CATHOLIC FAITH.
Article VIII of the Constitution contains the declaration of belief
and conformity required of all ordinands, Bishop, Priest or Deacon,
"to engage to conform to the Doctrine, Discipline and Worship of this
Church," and each may be presented for holding and teaching
"Doctrine" contrary to that of this Church under Canon IV.1.1(2).
The "Doctrine" to which the declaration of belief and conformity calls
all ordained persons, concerns fundamental matters of the substance
of the Catholic Faith.
In the first official defense of what became Anglicanism, Bishop
John Jewel, in An Apologie of the Church of England, 1564, writing
on behalf of the Bishops of the English Church, defended the Church
of England against its Roman detractors by stating that it was not a
new church, but a church which had restored the faith and practice of
the early church as expressed in the Creeds and the first four
ecumenical councils. Thus, Anglican doctrine was defined by Bishop
Jewel as nothing more and nothing less than the historic faith of the
Catholic Church:
"We have searched out the Holy Bible, which we are
sure cannot deceive, one sure form of religion, and have
returned again unto the primitive church of the ancient
fathers and apostles, that is to say, to the first ground
and beginning of things, as unto the very foundations
and headsprings of Christ's church. Apologie,
"Recapitulation" Folger Edition, p.135.
When The Episcopal Church was independently organized in 1789,
it declared itself "far from intending to depart from the Church of
England in any essential point of doctrine, discipline or worship; or
further than local circumstances require." Preface to the Book of
Common Prayer, 1979, which first appeared in the 1789 Book of
Common Prayer. The opening paragraph of that Preface refers to
"Doctrine" as "the substance of the Faith."
1. THE DOCTRINE OF THE EPISCOPAL CHURCH IS FOUND IN HOLY
SCRIPTURE, THE APOSTLES' AND NICENE CREEDS, AND THE BOOK
OF COMMON PRAYER
The Episcopal Church, unlike some other churches, has produced
no confession of faith setting forth a body of distinctive doctrinal
teaching. Rather, its doctrinal development has been carried out with
reference to its authoritative sources. The "Doctrine" of The
Episcopal Church is to be found in Holy Scripture, the Apostles'
Creed, the Nicene Creed and the Book of Common Prayer, the latter
alone being recognized in the Canons of this Church as the repository
of the only "authorized formularies of this Church". Canon II.3.4. See
Canon Law: A Handbook, Daniel B. Stevick, 1965, p.113f. There are
no other officially recognized sources of the doctrine of The Episcopal
Church.
This identification of the Scriptures and the two most ancient
creeds as occupying a unique place of authority for doctrine is
distinctive of Anglicanism, as witnessed by the Chicago- Lambeth
Quadrilateral. When, in the 19th Century the separated Christian
churches began to work towards unity, The Episcopal Church, and
then the entire Anglican Communion, proposed this "Quadrilateral"
as a basis for ecumenical discussion and negotiation. This
formulation had its origins in a book, The Church-Idea, written in
1870 by William Reed Huntington, then put forward by the House of
Bishops in Chicago in 1886 and finally endorsed, in slightly altered
form, by the Lambeth Conference of Bishops in 1888. It sets forth
four essentials: Holy Scripture, the Apostles' and Nicene Creeds, the
dominical sacraments of Baptism and the Lord's Supper, and the
historic episcopate. Book of Common Prayer, pp.876-878. In this
proposal for Christian unity, the Anglican Churches were saying that
the only doctrinal authorities to which they seek to hold others were
the Scriptures and the two Catholic Creeds.
The Chicago-Lambeth Quadrilateral has been described in a book
written by one of the Presenters as containing "the basis of our faith."
Foundations of the Faith, The Rt. Rev. William C. Wantland, 1993,
p.6.
This identification of the sources of doctrine in The Episcopal
Church was made clear in the 1924 heresy trial of Bishop William
Montgomery Brown. The Presentment of Bishop Brown made
explicit reference (in Section 23) to the "Doctrine" that is "held by the
Protestant Episcopal Church, as contained in the Book of Common
Prayer and especially in the Apostles' and Nicene Creeds."
The Court for the Review of the Trial of A Bishop, considering the
appeal of Bishop Brown's conviction, defined the "doctrine of the
Church" as the "articles of faith" which "must be accepted by all
members of the Church."
At its meeting in Montana in September 1965, the House of
Bishops adopted a resolution on the recommendation of its
Theological Committee in response to a request from several Bishops
that the then Bishop of California, James A. Pike, be presented for
holding and teaching Doctrine contrary to that of the Church. That
resolution restated the long-recognized sources of the Doctrine of this
Church, providing in pertinent part,
"Because of the misunderstandings which so easily
occur, we say to those outside and inside the Church
that THE CHURCH'S FAITH IS EXPRESSED IN ITS
TITLE DEEDS - THE SCRIPTURES, AND THE
CREEDS WHICH GUARD THEM - AND IN THE
PRAYERS AND SACRAMENTAL ACTS IN THE
BOOK OF COMMON PRAYER, WHICH
EXPRESSES CHRIST'S MINISTRY WITHIN THE
CHURCH." Emphasis added. Minutes of House of
Bishops, 1965, pp.23-24. Reprinted in The Bishop Pike
Affair, Scandals of Conscience and Heresy, Relevance
and Solemnity in the Contemporary Church, William
Stringfellow and Anthony Towne, Appendix, pp.199-
200.
The Presenters ignore 450 years of Anglican tradition and
understanding of the Doctrine of this Church and its four universally
recognized sources. Instead, the Presenters misrely upon outdated
texts, an encyclopedia by a theologian of little scholarly distinction,
and even a secular dictionary in an attempt to redefine the sources of
the Doctrine of The Episcopal Church to include resolutions of
General Convention and "teachings" of the House of Bishops, which
they have erroneously chosen to describe as "formularies of this
Church." The Presenters even describe a 1977 resolution of the
House of Bishops as "doctrinal principles." Brief, p.4.
The only Episcopal authority cited by the Presenters is their
acknowledgement that "White & Dykman's Annotated Constitution
and Canons, ... cites the Book of Common Prayer, the Apostles' Creed
and the Nicene Creed as three places where the doctrine of the
Church may be found." Brief, p.2. Presenters fail to note that neither
White & Dykman, nor any other accepted authoritative source, has
ever suggested that resolutions of General Convention, much less
resolutions of the House of Bishops, acting alone, establish the
"Doctrine" of The Episcopal Church.
None of the accepted doctrinal sources and nothing in the
authoritative discussions that have arisen from them has anything to
say about the issue in this Presentment, viz. whether it is permissible
to ordain a non-celibate homosexual person. It is difficult to see how
one can violate doctrinal standards on a matter on which they are
entirely silent.
2. THE DOCTRINE OF THE EPISCOPAL CHURCH IS NOT THE SAME
THING AS ITS MORAL AND SOCIAL TEACHING.
In addition to Doctrine, there is also a body of moral and social
teaching which explicates and applies the Christian fundamental
message to the particular circumstances of human life in society.
However, as important as this moral and social teaching is, it is not
that fundamental Doctrine which is the subject of the declaration of
belief and conformity taken at Ordination or the basis for the
canonical charge in Canon IV.1.1(2).
The moral and social teaching of the Church, unlike its
fundamental Doctrine, is open to modification (e.g., remarriage after
divorce; relations with South Africa); development (e.g., the role of
women in the Church) and even repudiation (e.g., slavery), in light of
changing perceptions and understandings of the human condition. It
is continuously under review and the subject of regular legislation by
General Convention, but it is not the Doctrine of The Episcopal
Church.
The modification, development and even repudiation of what had
been traditional stands on specific moral or social issues is not
distinctive to The Episcopal Church. It is the nature of Anglicanism
which looks to tradition and reason as interpreters of Scripture in
ever-changing circumstances and cultural settings. In times of internal
conflict when different insights are being applied to particular moral
or social teachings, the Church continues to exist and to recognize and
live through those conflicts.
"Acceptance of anomaly is not the compromise of truth. It is to
take seriously the imperative to maintain the unity of the Church."
Report of the Eames Commission (The Archbishop of Canterbury's
Commission on Communion and Women in the Episcopate), 1989.
3. THE DOCTRINE OF THE EPISCOPAL CHURCH IS NOT ESTABLISHED
BY RESOLUTION OF GENERAL CONVENTION OR THE HOUSE OF
BISHOPS.
Article I, Section 1 of the Constitution of The Episcopal Church
declares: "There shall be a General Convention of this Church,
consisting of the House of Bishops and the House of Deputies, which
Houses shall sit and deliberate separately; and in all deliberations
freedom of debate shall be allowed. Either House may originate
proposed legislation, and all acts of the Convention shall be adopted
and authenticated by both Houses."
The laws of the church, like those of the state, are made such "by
consent of the governed." This principle was established through the
leadership of Bishop William White, who was following Hooker:
"Laws they are not which public approbation hath not made so...Laws
human, of what kind soever, are available by consent." The Laws of
Ecclesiastical Polity, I.x.8. Such consent is exercised by representation.
The orders of the church, gathered in plenary synod, adopt laws that,
only when duly considered and passed, are binding on all.
To quote from Phillimore's The Ecclesiastical Law of the Church
of England, Second Edition, Volume II, 1873, an English text cited by
the Presenters (Brief, p.2),
"Matters of doctrine, in which the church has prescribed
no rule, may be discussed without penal consequences;
and no rule is to be ascribed to the church which is not
found expressly and distinctly stated, or which is not
plainly involved in, or to be collected from the written
law of the church." Id., p.1100.
The Constitution establishes the Book of Common Prayer, the only
"recognized formularies" of this Church, and one of the four
recognized sources of this Church's Doctrine. The General
Convention, with its two Houses, as the highest legislative body of The
Episcopal Church, can amend the Constitution and the Book of
Common Prayer through a time-consuming process including
approvals at two successive meetings of General Convention.
Accordingly, while it is possible for the General Convention acting
through Constitutional means and with the required deliberative
process, to amend the Constitution to establish other or different
formularies, or to amend the Book of Common Prayer, it is extremely
time consuming and a very rare event indeed.
The Presenters argue that resolutions of General Convention,
including a resolution which makes a mere "recommendation" as to
certain "considerations", should be considered as establishing the
Doctrine of this Church. Prior to this Presentment, no one has
seriously argued and no respected authority states that resolutions of
General Convention, which do not even amend the Constitution or
Canons, should have the "force of law," much less Doctrine.
More than a century ago, the General Convention of 1877 received
a report on the significance of resolutions of General Convention.
That report stated that such resolutions "have never been deemed to
have, and ought not to be construed as having, the force of law, but as
merely being the expression of an opinion ... of great weight but not
obligatory." Journal 1877, pp.141-43, 205.
At the 1880 General Convention, a committee commented about
the 1877 report, pointing out that "These very resolutions [about the
`force' of joint resolutions], if passed, would themselves become joint
resolutions, neither more nor less, and ... it is difficult to see how any
relief could come to embarrassed minds from our passing them."
Journal, 1880, pp.114-115. See also Annotated Constitution and
Canons, 1954 ed., vol. 1, 351-361. New Wine, Pamela W. Darling,
1994, Note 4, p.247.
More recently, the 1964 General Convention adopted a resolution
on the subject of the levels of authority within The Episcopal Church.
That resolution recognized that the Church "accepts as its authority
the Holy Scriptures, the Nicene and Apostles' Creeds, and speaks
through the Book of Common Prayer and the Constitution and
Canons of the Church." Journal, 1964, pp.312-314.
While that resolution recognized the importance of resolutions,
statements and actions of General Convention, and to a lesser extent
the teachings of the House of Bishops, the resolution does not suggest
that any such resolution, statement or action could conceivably
establish the Doctrine of this Church as argued by Presenters.
The Presenters make reference to the 1924 trial of Bishop William
Montgomery Brown where pursuant to Canon Law, the House of
Bishops acted as the "Ultimate Court of Appeal" after a finding of
heresy by both the trial and appellate courts, to attempt to support
their claim that "matters approved by the House of Bishops as to
doctrine have the highest sanction possible." Brief, p.3.
The Presenters fail to note that there has been only one such
"judicial" determination of "doctrine" in the history of The Episcopal
Church (the Brown case); that such a finding can only be made after a
trial, a conviction and an appeal; and that such a finding requires the
approval of two-thirds of all Bishops canonically assembled and
entitled to vote. Canon IV.6.5.
While it is true that the entire House of Bishops acts as a final
"court of review" of any Bishop convicted of heresy, it is a
mischaracterization of the Canons and the notes of its standard
commentators and a grotesque exaggeration to suggest that every
resolution of the House of Bishops carries with it the force of
Doctrine, and the risk of a presentment for heresy for dissent.
B. QUALIFICATIONS FOR ORDINATION ARE PART OF THE DISCIPLINE
OF THE CHURCH.
Anglicanism has long made a distinction between Doctrine and
Discipline. The distinction is at least as old as Richard Hooker, who
argued in The Laws of Ecclesiastical Polity, 1594-7 [especially
E.P.III.iii], that his Puritan opponents sought to treat as matters of
Doctrine things which really belonged to Discipline.
A classic expression of this distinction is the opening paragraph of
the Preface to the Book of Common Prayer, 1979, which first
appeared in the 1789 Book of Common Prayer:
"It is a most invaluable part of that blessed `liberty
wherewith Christ hath made us free,' 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.'" Emphasis
added. Id., p.9.
Although the Preface was concerned about Liturgy as the new
American Church was claiming the liberty to modify the Book of
Common Prayer, the words draw the essential distinction between the
permanent nature of Doctrine, which dealt with "the substance of the
Faith" (or, as Hooker spoke of it, "necessary things"), and the
changeable nature of Discipline about which the Church could be
more flexible and pragmatic.
None of the sources of the Doctrine of this Church set forth any
prohibition to the ordination of a non-celibate homosexual man or
woman or limitations on Bishops performing ordinations. Rather, the
qualifications of ordinands are found in the Canons and the
prerequisites to ordination are found in the Constitution (the
declaration of belief and conformity required in Article X) and the
Canons. The qualifications for ordinands and other prerequisites for
ordination to the diaconate (in preparation for eventual ordination to
the priesthood) are set forth in Canon III.7.
There is no provision in the Constitution or the Canons which
prohibits the ordination of non-celibate homosexual candidates or
which would make any such ordination "impermissible" to use the
term of the Presentment, although there have been repeated
unsuccessful attempts to secure the enactment of such Canonical
prohibitions, the most recent coming from two of the Presenters, the
Bishop of Central Florida in 1991 and the Bishop of San Joaquin in
1994.
Under the historic legal principle of legislative construction
inclusio unis, exclusio alterus, the inclusion of detailed, specific
requirements, qualifications and prerequisites to ordination excludes
any others not included. Indeed, the failure of attempts to enact
canonical prohibitions against such ordinations shows that the mind of
the Church has been not to make such ordination unlawful, much less
a violation of the Doctrine of The Episcopal Church.
II. TO ACCEPT THE PRESENTMENT WOULD BE TO HOLD THAT ALL
THOSE BISHOPS WHO SIGNED THE STATEMENT OF CONSCIENCE
IN RESPONSE TO THE 1979 GENERAL CONVENTION RESOLUTION,
ALL THOSE BISHOPS WHO VOTED AGAINST THE 1990 RESOLUTION
OF THE HOUSE OF BISHOPS, AND ALL THOSE BISHOPS WHO
SIGNED THE 1994 "STATEMENT OF KOINONIA" WOULD BE SUBJECT
TO PRESENTMENT FOR VIOLATIONS OF CANON IV.1.1(2).
Apparently recognizing that Bishop Righter was but one of many
Bishops to have undertaken the "public action" and "public teaching"
which forms the basis for the alleged violation of Canon IV.1.1(2) in
the Presentment, the Presenters warn,
"Should any Bishop preach or otherwise publicly
proclaim that it is permissible and right to ordain
practicing homosexuals, that teaching or doctrine would
be directly contrary to the declared teaching of the
Church, and would be a violation of Canon IV.1.1(2)
prohibiting teaching contrary to the doctrine of the
Church." Brief, p.7.
The Presenters contend that 1979 General Convention Resolution
A053sa establishes the doctrine of this Church. If they were correct,
the Statement of Conscience issued in response "would be a violation
of Canon IV.1.1(2) prohibiting teaching contrary to the doctrine of the
Church", and all 43 of the Bishops who signed the Statement of
Conscience would be liable to Presentment along with Bishop
Righter.
At the meeting of the House of Bishops in Washington, D.C., on
September 18, 1990, 75 Bishops, in addition to Bishop Righter
"dissented from Resolution [No. B-1a] and voted against affirming the
February [20, 1990] Statement" [of the Presiding Bishop and his
Council of Advice], including The Presiding Bishop, and five of the
nine members of the Council of Advice who had originally signed the
February Statement. The Presenters charge that this "public action"
constitutes "holding and teaching doctrine contrary to that held by this
Church." If they were correct (that voting against Resolution B-1a
constituted "public action" in "violation of Canon IV.1.1(2)
prohibiting teaching contrary to the doctrine of the Church"), then all
75 of the Bishops who, along with Bishop Righter, "dissented" would
also be liable to Presentment.
On August 25, 1994, at the General Convention in Indianapolis, 71
Bishops signed "A Statement of Koinonia". The Presenters charge
that signing the Statement of Koinonia constitutes "public teaching" of
"doctrine contrary to that held by this Church." If the Presenters were
correct, then all 70 of the Bishops who, along with Bishop Righter,
signed the Statement of Koinonia would also be liable to Presentment
for "violation of Canon IV.1.1(2) prohibiting teaching contrary to the
doctrine of the Church".
In 1924 the Court for the Review of the Trial of A Bishop,
considering the appeal of the heresy conviction of Bishop William
Montgomery Brown (the only trial of any Bishop in The Episcopal
Church for "holding and teaching doctrine contrary to that held by this
Church"), defined the "doctrine of the Church" as the "articles of faith"
which "must be accepted by all members of the Church."
There is no doctrine of this Church on the issue of whether it is
permissible or impermissible to ordain non-celibate homosexual
persons. To put it in the precise words of the Court in rejecting
Bishop Brown's appeal, there is no article of faith stating that it is
impermissible to ordain a non-celibate homosexual person which must
be accepted by all members of the Church.
As the House of Bishops acknowledged in the Statement issued in
September 1990, on the issue of "ordination to Holy Orders of
sexually active homosexual men and women" ... "we are not of a single
mind..." Journal, 1991, p.517.
III. THE ORDINATION OF THE REV. BARRY STOPFEL TO THE
DIACONATE IN COMPLIANCE WITH THE CANONS AND IN
ACCORDANCE WITH THE WORSHIP OF THE EPISCOPAL CHURCH
WAS NOT A VIOLATION OF BISHOP RIGHTER'S ORDINATION
VOWS.
In "Count II" of the Presentment, Bishop Righter is charged with
violation of Canon IV.1.1(6) ("violation of ordination vows") based
upon the assertion that ordaining the Rev. Barry Stopfel to the
diaconate violated the declaration of belief and conformity given by
Bishop Righter at the time of his ordinations (which Presenters
characterize as his "ordination vows to `conform to the Doctrine ... of
the ... Church.'" Presentment, p.7.
The "ordination vows" referred to in Canon IV.1.1(6) are not the
declaration of belief and conformity, but the vows taken by the
ordinand during the examination at his or her ordination. The
declaration of belief and conformity requires all ordinands to
"solemnly engage to conform to the Doctrine, Discipline, and Worship
of The Episcopal Church," and the failure to conform to the Doctrine,
or the Discipline, or the Worship of The Episcopal Church can be the
basis for a presentment under Canon IV.1.1, but not under Canon
IV.1.1(6) for "violation of ordination vows."
Canon IV.1.1(6) is intended to address conduct not included in any
of the other sections of Canon IV.1.1, e.g., failure to obey a godly
admonition by a priest or a deacon. The "Doctrine, Discipline and
Worship of The Episcopal Church" are each covered by different
sections of the disciplinary Canon. Were Canon IV.1.1(6) ("violation
of ordination vows"), to mean failure to obey the declaration of belief
and conformity (failure to conform to the "Doctrine, Worship and
Discipline of The Episcopal Church"), then it would be duplicative
and redundant. In addition, the Presenter's argument that failure to
conform to the Doctrine of the Church is presentable under both
Canon IV.1.1(2) and Canon IV.1.1(6) creates a fundamental
procedural paradox under Canon IV.4(b). It is not possible to comply
with the inconsistent procedural requirements of both sections.
Even were it proper under Canon IV to bring charges under both
IV.1.1(2) and IV.1.1(6) based upon a breach of the Doctrine of The
Episcopal Church, there is no such breach herein. As indicated above,
there is no Doctrine of this Church on the question of whether it is
permissible or impermissible to ordain non-celibate homosexual
persons or establishes limitations on Bishops performing such
ordinations. The required qualifications of ordinands and the
prerequisites to ordination are found in the Constitution and Canons
of this Church, and there is no provision in the Constitution or the
Canons which prohibits the ordination of non-celibate homosexual
candidates.
The qualifications and other prerequisites for ordination to the
diaconate (in preparation for eventual ordination to the priesthood)
are set forth in Canon III.7. At the time of his ordination to the
diaconate by Bishop Righter, the Rev. Barry Stopfel had satisfied all
of the canonical requirements for such ordination, including (a) the
required certification from the Rector and Vestry of the Parish of
which Barry Stopfel was a member; (b) a resolution of the Standing
Committee of the Diocese of Newark recommending that Barry
Stopfel be ordained to the Diaconate; and (c) the approval of the
Bishop of Newark to such ordination.
The ordination of the Rev. Barry Stopfel to the diaconate did not
violate the DOCTRINE of this Church, because there is no Doctrine
of this Church pertaining to the qualifications of ordinands or
imposing limitations on the authority of Bishops to ordain. Such
qualifications and limitations are matters of discipline under the
Constitution and Canons. The ordination of the Rev. Barry Stopfel to
the diaconate did not violate the DISCIPLINE of this Church in that
all of the prerequisites to such ordination required under the
Constitution and Canons were satisfied and the ordinand met all of
the Canonical qualifications for ordination. The Rev. Barry Stopfel
was ordained to the diaconate in accordance with the WORSHIP of
this Church as set forth in the Book of Common Prayer.
The ordination of the Rev. Barry Stopfel was not contrary to the
declaration of belief and conformity given by Bishop Righter to
engage to conform to the Doctrine, Discipline and Worship of The
Episcopal Church, nor did such ordination violate any ordination vow
given by Bishop Righter.
CONCLUSION
There is no basis for bringing Bishop Righter to trial on a charge of
holding and teaching Doctrine contrary to that of The Episcopal
Church in violation of Canon IV.1.1(2) or on a charge of violating his
ordination vows under Canon IV.1.1(6). This attempt to use the
Church's judicial process to resolve an issue on which there is no
agreement must fail. Accordingly, it is respectfully submitted that the
House of Bishops should not consent to proceeding to a trial and the
Presentment should be dismissed.
Respectfully submitted,
MICHAEL F. REHILL
Of Counsel and Chancellor, Diocese of Newark
On the Brief:
Counsel for Respondent
The Rt. Rev. Walter C. Righter
Retired Bishop of Iowa
WILLIAM C. BULLITT
Chancellor, Diocese of Pennsylvania
JOHN K. CANNON
Chancellor, Diocese of Michigan
PAUL E. COONEY
Chancellor, Diocese of Washington
RICHARD J. HOSKINS
Chancellor, Diocese of Chicago
Dated: May 10, 1995