It has been a curious few days in regard to the topic of same sex unions, which has so long excited contemporary culture. It opened with Pope Francis in Rome seemingly coming out in support of civil unions, in a documentary about him called “Francesco”, in which he observes “Homosexuals [are] children of God and have a right to a family. Nobody should be thrown out of the family or have a miserable life because of their homosexuality. We need a law of civil union. They have a right to be legally covered. I defended this.”
These few days ended with the dramatic action of US Episcopal Bishop Love of Albany announcing his resolve to resign as a bishop, in consequence of the decision against him of the Disciplinary Board of the House of Bishops, for failing to provide access in his diocese for trial rites of same-sex blessing.
The potential for a headline along the lines of, “Pope Comes Out, Love Goes Out” might come to mind….. but both stories merit further and separate consideration for the light they cast on the two different stories on this theme.
In the first case, the Roman pontiff seems to be doing something he rather likes to do, which is to go right up to the very edge of a classical church position and appear to subvert it, but without actually quite doing so in the end. As it turns out, a degree of mystery surrounds the clip in the new film, made by the Oscar-nominated Evgeny Afineevsky, since it turns out it is not actually new, but comprises a short scene that had been cut from an earlier interview recorded in 2019 by the long time Vatican reporter Valentina Alazraki for the Mexican broadcasting company Televisa. The clip, as is customary with all such filming, was recorded on Vatican cameras but was removed from the first edition of the recording –though whether by the Vatican or others is as yet unclear, as is the exact path to its recovery and placement in the new film, although it seems that its use does enjoy full Papal approval.
Predictably, the Pope’s suggestion has attracted severely negative comments from more traditional Roman Catholic figures such as Raymond Cardinal Burke, who has been quoted as observing that these comments “are contrary to the teaching of the Sacred Scripture and Sacred Tradition,” and, “cause wonderment and error regarding the Church’s teaching among people of good will,” while going on to add that they are not binding for Catholics in any way.
Nonetheless, it is hard to see these observations as essentially merely those of a private figure. Moreover, as a matter of practical reality, where countries have changed their laws to provide for civil unions and even civil marriages of same sex couples the church has necessarily had to coexist with this. What remains to be clarified is how far the Pope – even if seeking to speak in a purely personal capacity—wishes to go in regard to the fulness of relations between the couple. In other words would sexual relations between the couple still be regarded as sinful which is the historic Church position? If the Pontiff wishes still to uphold that teaching, as is probably in fact the case, then his statement is rather less radical than it might at first appear (as so often in his case it seems). If he does wish to hold that such relationships are not sinful then that would be news indeed.
Here it is apposite to recall his famous comment during an impromptu, July 29, 2013 press conference on his flight back from Brazil, “Who am I to judge.” Or, to cite the statement more fully, “If a person is gay and seeks out the Lord and is willing, who am I to judge that person?”
In a subsequent conversation, with the Italian journalist Andrea Tornielli, when asked how he might act as a confessor to a gay person in light of this remark, the Pope replied that. “I was paraphrasing by heart the Catechism of the Catholic Church where it says that these people should be treated with delicacy and not be marginalized.” He then added that “I am glad that we are talking about ‘homosexual people’ because before all else comes the individual person, in his wholeness and dignity,… And people should not be defined only by their sexual tendencies: let us not forget that God loves all his creatures and we are destined to receive his infinite love.” adding that “I prefer that homosexuals come to confession, that they stay close to the Lord, and that we pray all together,” …. “You can advise them to pray, show goodwill, show them the way, and accompany them along it.” Asked whether there is an opposition between truth and mercy, or doctrine and mercy, the pontiff responded: “I will say this: mercy is real; it is the first attribute of God.” and that, “Theological reflections on doctrine or mercy may then follow, but let us not forget that mercy is doctrine,” …. “Even so, I love saying: mercy is true.” All of which leaves frankly unclear what he did mean exactly in that original phrase.
Pending some further modification of his previously known views, moreover, it is clear from past statements that the Pope’s then openness as Archbishop of Buenos Aires to a civil union law in 2010 in Argentina was based on his hope that compromise on civil unions would forestall gay marriage, with an attendant redefinition of the family which he later has held to, “threaten to disfigure God’s plan for creation and betray the very values which have inspired and shaped all that is best in your culture” and which further reflected a “lack of openness to life”. It is in the context of such reasoning that he is also on record as opposed to the adoption of children by same sex couples a point of current relevance in the context of policies regarding the placement of children into foster care and adoption by Roman Catholic charities and the case of Fulton v. City of Philadelphia due to come before the Supreme Court in the United States on 4th November.
But addition. it is important to note that in his formal document of 2016, Amoris Laetitia, Pope Francis categorically stated that: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and the family.” All of which entails that this story has some further way to run before the final impact and indeed final position of the Pope on the key central questions is definitively resolved given his variety of comments and statements which do seem in some degree of mutual tension,.
Turning then to the case of Bishop Love of Albany, he announced his previously unsignalled decision to resign on Saturday 24th October, during the course of his Presidential address to the 152nd meeting of the General Convention of his Diocese.
This action is evidently part of a formal “Accord” negotiated through the Presiding Bishop with the unanimous approval of the Disciplinary Board of the House of Bishops. Under the terms of this Accord, Bishop Love will go on a sabbatical leave from 1st January 2021 until 1st February 2021 when he will resign –that day being the exact 14th Anniversary of his becoming the Bishop Diocesan of Albany.
He took this step following the decision earlier this month of the Hearing Panel convened by the Episcopal Church to find him “guilty of failing to abide by the Discipline and Worship of the Episcopal Church, and thus violating my ordination vows” and in consequence of his conclusion that, even though,
“I don’t agree with the Hearing Panel’s ruling, they have issued their judgement. Unfortunately, given the nature of this case, and the Episcopal Church’s demonstrated intent to ensure all dioceses (where civil law permits) allow for same-sex marriages, I have no reason to believe that appealing the Hearing Panel’s Decision would result in any different outcome.”
This marks a very sad end to his successful ministry as Bishop and leaves ultimately inconclusively addressed (since the appeals process was not undertaken) the convoluted reasoning adduced for the conclusion reached by the Panel against Bishop Love. It can also only be a source of likely wonderment to wider society that the Episcopal Church in the middle of the global pandemic and the existential crisis facing so many shrinking congregations can still expend the energy and very considerable resources it has used to prosecute such a case. Be that as it may, the outcome is significant on several levels. Canonically and constitutionally it matters because the decision by the Panel accepts as legitimate proceedings against a Bishop who declined to ensure the provision of access in his diocese to trial liturgies on the basis that they were incompatible with the Episcopal Church’s 1979 Book of Common Prayer. That Book of Common Prayer it is further important to note both the Church’s Constitution (Art. X) and Canons (Canon II.3.1) make mandatory and normative for all forms of worship in the Episcopal Church (USA).
This resulting situation can perhaps helpfully be set out as comprised of the following elements (among others):
- Bishop Love was and remains fully committed to upholding (as the Constitution and Canons of the Episcopal Church require) the Discipline and Worship of the Episcopal Church, as defined by the Book of Common Prayer (1979) to which he had formally committed himself upon Consecration as Bishop (as the Church requires).
- In consequence of this commitment, Bishop Love felt in conscience unable to ensure access in his diocese to liturgies approved in Resolution B12 by the church’s 79thGeneral Convention, for trial use, that were incompatible with that normative Book of Common Prayer (1979) standard, given that the General Convention had not revised the Book of Common Prayer (1979) first in such a way as to remove the incompatibility (which would have required the approval of two successive General Conventions and assent of the Diocesan Conventions)
- Bishop Love has now been found “guilty of failing to abide by the Discipline and Worship of the Episcopal Church” and in violation of his ordination vows, for failing to permit access to these trial liturgies in his Diocese as mandated by Resolution B12 of the 79th General Convention.
Taken together it is hard to see a coherent ecclesial position here.
While it might be tempting to suppose that the situation is simply that current church procedures, and whatever the most recent General Convention has approved, is paramount in the Episcopal Church, rather than what is entailed by official commitment to the Book of Common Prayer, in point of fact, that is not the formal and legal position to which the Church is officially subscribed, which remains that of the 1979 Prayer Book.
This gives rise to a paradox: either the Church and its bishops are committed to following its Constitution and Canons or they are not. If they are, then the incompatibility of the trial rites advanced by Resolution B12 with the Book of Common Prayer (1979) as it stands –unrevised– is a problem, and the action of the 79th General Convention in passing this resolution is a problem too. (At least until such time as that BCP 1979 is amended, as approved by two successive General Conventions and Diocesan Conventions). If on the other hand, the General Convention is sovereign to the point of being unfettered by the very Constitution and Canons under which it is constituted, then what defence can be advanced if its actions be deemed arbitrary ?
Upon analysis – for which time will allow a more definitive view – it seems that while the effects in terms of legal proceedings are sharp and clear, the underlying position is at best complex and more likely even ambiguous to the point of seeming contradictory.
To take the first point:
In their Decision against Bishop Love, the panel of Bishop judges state that:
“Resolution B012 was properly constituted and passed as an authorized revision to the BCP as expressly provided for in Constitution Article X (b)” (p.3)
This entails the view that despite being expressly called “trial rights”. the Resolution B12 authorizing them and requiring provision of access to their use, did in fact change the Book of Common Prayer (1979) and did so despite failing to meet the requirement in the Constitution and Canons that changes to the Book of Common Prayer be approved by two successive General Conventions, (which could not happen in this instance since the resolution was only proposed and approved at the last Convention in 2018).
In support of their conclusion the Panel states however that,
“the explicit language of Resolution B012 as passed, makes plain its intent to be a proposed revision to the BCP and not as supplemental rites masquerading as a proposed revision to the BCP” (p.27)
But, this claim merely clarifies the intent. Yet the intent, of itself, does nothing to show that what was intended was constitutionally possible.
Recognition that this was and remains a problem is further provided by the separate action of the same 79th General Convention in passing Resolution A63 which was clearly designed to change the requirements upon this very point. This action was interesting of itself, and also, because of how it was sought to be accomplished, because Resolution A 63 was expressly passed as a first reading of a proposed amendment that would grant (and thus acknowledges this capacity as lacking hitherto) the specific authority to a single session (of the General Convention) acting with the appropriate majorities under Article X of the Constitution, by adding a new subsection (c) to: (c) Authorize for use throughout this Church, as provided by Canon, alternative and additional liturgies to supplement those provided in the Book of Common Prayer.
But this amendment, by virtue of having itself to comply with the requirement for approval by two successive General Conventions has not yet come into effect, and will not do so until it passes on a second reading at the next General Convention (in 2021). Yet its being put forward makes clear that, as of now, such approval by two consecutive General Conventions continues to be needed for any attempt to modify the normative Prayer Book of 1979. (Thus implying that any action attempting to achieve this without the needed twin successive approvals by General Convention must be void.)
In other words, the action of putting this resolution forward and approving it demonstrates precisely the point Bishop Love asserted, namely that, as things stand, whatever the intent to supplement and change the Book of Common Prayer (1979) such intent could not be effected until either the Constitution was amended as Resolution A63 proposes (to allow for such changes to be effected by just one General Convention) or, Resolution B12 would have had itself to have been approved in the appropriate way for such a change, and thus, at two General successive General Conventions etc.
Resolution 2018 A63 far from assisting effectively undercuts Resolution 2018-B12, since it is not yet itself in effect, and more damagingly still, by virtue of its existence, it highlights exactly why Resolution B12 did not in fact change the Book of Common Prayer 1979 (to the upholding of which Bishop Love and indeed the Panel in this case are obliged to be committed). And without this change, the trial rites of Resolution B12 remain clearly incompatible with the 1979 Prayer Book, thus making it hard indeed to see how a bishop could properly be subject to censure for failing to ensure their availability for use across his diocese.
The Constitution and Canons state clearly that the “Discipline of the Church shall be found in the Constitution, the Canons and the Rubrics and the Ordinal of the Book of Common Prayer”. This, on the matter at hand in regard to the case against Bishop Love, in the absence of changes and amendments, still defines and limits the possible parties to a marriage as a man and a woman, — the express point with which the trial rites of Resolution B12 are incompatible.
By virtue of passing the proposed Amendment to Article X, the General Convention 2018 in effect recognised and even highlighted the point that it lacked all authority to propose any supplements to the BCP for mandatory use throughout the church without observing the formalities that Article X requires in terms of approval by two successive General Convention.
But what of the second point :
the underlying ambiguity of the Episcopal Church’s current constitutional position on doctrine?
Here, it is important to note the exact language of Resolution B12, since this is constitutionally relevant. In particular, it specifically but merely authorizes “trial use” (under Article X of the Constitution and Canons) and specifies that “the period of trial use for these liturgies shall extend until the completion of the next comprehensive revision of the Book of Common Prayer.” This reflects the fact that this is the only mechanism the Constitution provides for changing the BCP and, thereby, the doctrine of the church.
But there is a quite significant question that the Constitution leaves unanswered, namely: Do all dioceses automatically have authorization to use trial use texts without the permission of the Ordinary, or does the bishop of the diocese have the authority to decide whether or not trial use liturgies will be used (or to what extent or under what conditions) in each diocese?
Since the Constitution does not in fact answer this question, the case, and now judgement, that Love violated his ordination vows must seem deficient here also. After all, if the trial use process comprises six years, then that means six years in which a new doctrine (embedded in the trial use liturgy) is simply under consideration, while the doctrine expressed (in the as yet unrevised BCP 1979) must clearly thenremain formally in effect unchanged throughout. (And as seen above, the attempt to claim otherwise –set out in the judgement– appears to fall short of the two-stage approval process the Constitution requires and which resolution 2018 A63 implicitly reaffirms.
This circumstance can but entail that when a trial use liturgy involves a change in doctrine, there must be an evidently problematic uncertainty regarding what this entails by way of action under the terms of the sworn duty of an Ordinary as a bishop. It would in logic, therefore, seem evident that this major constitutional question ought to have been addressed before disciplinary action against any Ordinary was even considered let alone attempted
But there is a yet further large question that the Constitution leaves unanswered, namely, for how long a trial use may continue.
One possible reading is that it can only continue for six years, and that the General Convention, after the one at which the process was initiated, must vote in favour or against the new liturgy, thereby either ending trial use after three years or continuing it for another three years, after which it would need to be voted on again. This would in fact seem prima facie the most likely reading of Article X. (Appended here below) However, it seems that the President of the House of Deputies and the Secretary of Convention consulted canon lawyers on this question and then apparently opted to take a different view, namely that trial use can continue indefinitely, relying for this on the language contained in the enabling resolution passed, rather than acknowledging the requirements in terms of process seemingly quite clearly imposed by the words of the constitutional Article X itself. (The viability as a general principle of holding that the internal wording of a resolution can of itself change the constitution and rules to which it would itself otherwise be subject is here put aside for another day.)
But if this is indeed correct, it has a radical consequence, since it follows that a trial use liturgy (by virtue of being such) even though it itself implicitly presumes upon a change in doctrine, must leave the actualdoctrine unchanged, (even while simultaneously authorizing exploration in practice of the new doctrine in the form of liturgical activity that presupposes it) and this state of doctrinal limbo will itself also continue indefinitely, or indeed permanently if not otherwise addressed so long as the trial rites remain available or in use.
Implicitly, Resolution B12 seems predicated upon this latter path, since the resolution specifies that “the period of trial use for these liturgies shall extend until the completion of the next comprehensive revision of the Book of Common Prayer.” And no one knows when or if another comprehensive revision of the BCP will take place.
This point militates strongly though, against the line of thought, cited earlier, that was used by the Panel judges in finding against Bishop Love when, as was seen above, they expressly cited the intent of the words used in Resolution B012 to authorise use of the trial rites of blessing, as in fact able of itself –upon the resolution being approved– to change the doctrine of the 1979 Book of Common Prayer, which Bishop Love –in common with the judges themselves — had sworn to uphold. But to say this seems quite incompatible with the rites being in fact the trial-use rites they are stated to be. Either they comprise a change in the doctrine of the 1979 Book of Common Prayer, and are thus not really “trial use rites” at all, in which case they have not been properly approved, since that would require approval by two successive General Conventions, or they are indeed rites merely approved in the limited sense of being available for trial use (be it for six years only or even indefinitely) and therefore do not change the doctrine of the 1979 Book of Common Prayer (being in fact incompatible with it as has been seen) which was the point upon which Bishop Love relied.
To add yet a further layer to all this, a considerable further complexity was added by the passing of Resolution A68 at the same General Convention, which resolved to “memorialize the 1979 Book of Common Prayer as a Prayer Book of the church preserving the psalter, liturgies, The Lambeth Quadrilateral, Historic Documents, and Trinitarian Formularies ensuring its continued use.”
This would seem to entail that the Book of Common Prayer (1979) has been preserved for continued use in perpetuity (much as is the case with the BCP 1662 in the Church of England) regardless of whether or not a new Prayer Book is ever authorized in the future in America, with the further implication that the doctrines expressed by those liturgies also continue to be formally recognized sine die. The use of the indefinite article in the resolution, when it refers to the 1979 Prayer Book as, “a Prayer Book of the church” suggests the resolution envisages a future in which multiple Books of Common Prayer are authorized, inviting the question of just which expresses the official doctrine of the church or will that be somehow contained in the corpus of the whole?
Lastly. it is worth noting that in regard to its relations with other Provinces of the Anglican Communion worldwide, representatives of the Episcopal Church USA have tended to stress hitherto, that in regard to same sex unions and any trial use rites pertaining to them, the church has not changed its formal doctrine from that of the 1979 Prayer Book. The circumstances arising from the case of Bishop Love cast an interesting light on that claim.
Article X: of the Constitution and Canons of the Episcopal Church
Of The Book of Common Prayer
The Book of Common Prayer, as now established or hereafter amended by the authority of this Church, shall be in use in all the Dioceses of this Church. No alteration thereof or addition thereto shall be made unless the same shall be first proposed in one regular meeting of the General Convention and by a resolve thereof be sent within six months to the Secretary of the Convention of every Diocese, to be made known to the Diocesan Convention at its next meeting, and be adopted by the General Convention at its next succeeding regular meeting by a majority of all Bishops, excluding retired Bishops not present, of the whole number of Bishops entitled to vote in the House of Bishops, and by a vote by orders in the House of Deputies in accordance with Article I, Sec. 5, except that concurrence by the orders shall require the affirmative vote in each order by a majority of the Dioceses entitled to representation in the House of Deputies.
But notwithstanding anything herein above contained, the General Convention may at any one meeting, by a majority of the whole number of the Bishops entitled to vote in the House of Bishops, and by a majority of the Clerical and Lay Deputies of all the Dioceses entitled to representation in the House of Deputies, voting by orders as previously set forth in this Article:
(a) Amend the Table of Lessons and all Tables and Rubrics relating to the Psalms.
(b) Authorize for trial use throughout this Church, as an alternative at any time or times to the established Book of Common Prayer or to any section or Office thereof, a proposed revision of the whole Book or of any portion thereof, duly undertaken by the General Convention.
And provided that nothing in this Article shall be construed as restricting the authority of the Bishops of this Church to take such order as may be permitted by the Rubrics of the Book of Common Prayer or by the Canons of the General Convention for the use of special forms of worship.
 All these elucidatory comments were contained in the book The Name of God is Mercy resulting from the extensive interview between the pope and Tornielli, the coordinator for the Vatican Insider website, see also https://www.ncronline.org/news/vatican/francis-explains-who-am-i-judge
 Speaking in Manilla in January 2015, see also https://www.catholicnewsagency.com/news/gay-marriage-is-ideological-colonization-says-vatican-spokesman-89365