James M. Stanton, Bishop of )
Dallas, et al., )
)
Presenters, )
)
The Rt. Rev. Walter C. Righter, )
)
Respondent. )
The decision to appeal in this case is complicated because the right of appeal does not extend to all the issues covered by the Court's decision. Thus, the Court of Review might accept the distinction between "Core Doctrine" and "Traditional Doctrinal Teaching" but then not be able to reach the question of whether the Respondent's act constituted a violation of his ordination vows as a violation of "Traditional Doctrinal Teaching."
The Presenters have advised the Church Advocates that they have decided not to ask for an appeal. While this decision carries great weight, the Canons do not make it dispositive of the question of whether there will be an appeal. The Church Advocates have an independent authority to pursue an appeal. There are issues peculiar to the case which make it a special category of case involving the holding and teaching of any doctrine contrary to that held by this Church. With respect to Count 1, these issues are: (a) Should there be a review of the failure to disqualify certain members of the Trial Court? and (b) Should there be left standing the unprecedented category of encore Doctrine" invented by the Trial Court as a means of departing from Scripture and Tradition on the central issue of the case while seeking to lead the unwary to believe that the central issue of the case had not been so decided.{See Note 1 below} Of these two issues, the Church Advocates believe the first to be the more significant to the outcome of an appeal, although somewhat less significant as a matter of principle. Since three judges had committed the same act as the one which was the subject of the Presentment and the same three, joined by a fourth judge, had signed the so-called Koinonia Statement, the bias of these judges was as clear as it could possibly be based on their extrajudicial conduct and statements. The rejection by the Trial Court of the appearaZnce of impropriety as a standard for judges in an ecclesiastical trial, especially
In the first three sentences of the Opinion, the Court said: "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 dioceses should or should not ordain persons living in same gender sexual relationships." The maxim "not to decide is to decide" was borne out as one follows the contrived path of the balance of the Opinion.
as to a Court composed entirely of bishops, will undermine confidence in the result through this Church as well as beyond it. A judgment for the Respondent would have been more soundly based and thus better received had it not come from a Court on which a third of the judges had performed the same act as the person charged and the remaining judges found no fault with their being allowed to serve on the Court.
In the view of the Church Advocates, the only way to correct this error of the Trial Court would be for the Court of Review to overrule the failure to disqualify the four bishops whose bias was alleged by the Presenters and to remand the case to the Court with an order to constitute a Court that is free from legal bias and to proceed with the case as if no orders or decisions had ever been made. With this in mind, a successful appeal would not settle the case but would require trial proceedings which would likely continue until after the date ofthe 1997 General Convention, an outcome not contemplated when the Presentment was lodged in January 1995. One may only speculate about the approach which could be taken by an appellate court to follow the trial court's unwillingness to decide the central issues of the case. The Presenters have proposed to give the 1997 General Convention the opportunity to affirm its acceptance of the authority of Holy Scripture which this Court has refused to accept. That opportunity could be confused by the specious argument that a pending appeal to the Court of Review or retrial by this Court as then reconstituted would preclude the need for action by the 1997 General Convention.
The decision as to Count 2 is even more disturbing and far reaching in its effect. Count 2 as worded in the Presentment limited the charge of violation of the Respondent's ordination vow to Ailing to conform to the Doctrine of this Church. This Court---on its own---made a "finding" that Count 2 also raised issues of Discipline. Then through a device which it called its own motion for summary judgment, it proceeded to dismiss Count 2 on the ground that there was no canon which specifically names the category of immoral conduct which was the subject of the 1979 Resolution and applicable to the facts of this case. {See note 2 below} The Court then abdicated its episcopal and canonical responsibilities to adhere to the teaching of Holy Scripture and to the Doctrine and Discipline of this Church in holding that it need not enforce the traditional moral teaching bearing on the case since it is the subject of debate and challenge by members of this Church. This purportedly means that any biblical or traditional standard of behavior is not enforceable when challenged to some degree not specified by the Court. The Court's decision has leR the disciplinary structure of the Church powerless to deal with challenges to moral or ethical teaching and practice which are at the center of the covenant relationship between God and his people so long as those teachings and practices are in dispute or in "dialogue."
The Court knew that its decision relating to Count 2 would not be subject to appellate review when it expanded Count 2 to include discipline, and therefore was able to evade its obligation to decide the central disciplinary issue in this case, the violation by the Respondent of Canon III.7.9 (l988) relating to the moral qualifications of ordinands.
Some may ask what will be the long range or precedential effect of the decision. It has certainly raised some problems for the General Convention. It is perhaps too early to speculate about all the problems which the decision could create but any answer must be received with the
2In an earlier memorandum Presenters described this approach to church discipline as "canonical fundamentalism." It is now clear that the lack of a specific canon is merely a sword in the hands of those who claim canonical specificity is necessary and then feel free as this Court did to use the shield of judicial amendment where canons do exist. Thus this Court felt free to amend Canon IV.I. 1(2) to delete the words "any doctrine" and add the words "Core Doctrine" [emphasis added] as well as to ignore the specific requirement of Canon 111.7.9 requiring findings as to the moral qualifications of ordinands.
perspective of more than thirty years of refusals by the House of Bishops to impose any order of self-discipline. {See note 3 below} This in turn, has continued to weaken the Episcopal Church within the wider church so that the net effect of the decision will be to allow local option on all matters of faith and morals. In some dioceses of the American Episcopal Church the decision will be hailed as a license to violate other teachings of Holy Scripture. In those dioceses which adhere to traditional teachings of the Christian Church, the decision may be ignored or rejected. {See note 4 below}
The Presenters and Church Advocates are grateful for the dissenting opinion of Bishop Fairfield. It stands in remarkable contrast to that of the majority. The only appeal of this case that will be taken is an appeal to those who accept the authority of the Holy Scriptures of the Old and New Testaments in the sense intended by the Author of 2 Timothy 3: 16-17.
"Thus, over the last quarter of a century the House of Bishops of the ECUSA has been confronted by statements and actions on the part of individual bishops that fly in the face of established doctrine, morality, and order. In the first case, a bishop left the church after an act of censure. In no case, however, has a bishop been removed from office or in any way inhibited in the exercise thereof. Further, the disciplinary actions of the bishops have become increasingly weaker, moving as they have from censure to statements that 'decry' an action or 'disassociate' other bishops from it. Each reaction seems weaker and less effective than the one before. One must ask, therefore, about the prudence of a pattern of oversight and discipline that, in the face of obvious challenges to the doctrine and discipline of the church, goes no further than an increasingly mild and qualified expression of disapproval. One must ask if this pattern of response does not signal both the decay of tradition and the decline of virtue within an entire church and a de facto break in its communion--an internal schism whereby warring factions make use of a single organizational structure but in fact do not seek to maintain communion by means of it." "Episcopal Oversight and Ecclesiastical Discipline," The Very Rev. Philip Turner, Inhabiting Unity, Ephraim Radner and Russell Reno, Eerdmans, 1995, p. 131.
4The Church should be reminded that it took twenty-two years following the Synod of Rimini for the Council of Constantinople to affirm the orthodox position. The position faced by those who are faithful to the teaching of the 1979 Resolution is not unlike that faced by the faithful orthodox after Rimini. Faithfulness will be rewarded, but in God's time.
THE CHURCH ADVOCATES
By: [signed]
A. Hugo Blankingship, Jr
On the Feast of St. Barnabas, Apostle
A. Hugo Blankingship, Jr.
Church Advocate
Rev. Charles G. Flinn
Assistant Church Advocate
4020 University Drive, Suite 312
Fairfax, Virginia 22030
The Rt. Rev. Edward W. Jones
Diocese of Indianapolis
1100 West 42nd Street
Indianapolis, Indiana 46208
The Rev. Canon Sue Reid
Clerk of the Court
Diocese of Indianapolis
1100 West 42nd Street
Indianapolis, Indiana 46208
Michael F. Rehill, Chancellor
Williamson & Rehill, P.C.
345 Kinderkamack Road
WestZvood, New Jersey 07675
Sally A. Johnson, Esquire
Faegre & Benson
2200 Norwest Center
Minneapolis, Minnesota 55402
[signed]
A. Hugo Blankingship, Jr.
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