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Stalinist Tactics Deployed to Silence ECUSA Bishops in Court
Needless to say, these "charges" should never have made it past the Intake Officer, and would not have done so without the implicit approval of the Presiding Bishop herself.
Sec. 4. Upon receipt of such information, the Intake Officer may make such preliminary investigation as he or she deems necessary, and shall incorporate the information into a written intake report, including as much specificity as possible. The Intake Officer shall provide copies of the intake report to the other members of the Reference Panel and to the Church Attorney.
Sec. 5. If the Intake Officer determines that the information, if true, would not constitute an Offense, the Intake Officer shall inform the Bishop Diocesan of an intention to dismiss the matter. If the Bishop Diocesan does not object, the Intake Officer shall dismiss the matter...
Bishop Matthew's email does not notify the bishops that he is dismissing the charges. To the contrary: he states that he will "initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 ...". Those Canons spell out the offenses for which clergy may be charged, and would be irrelevant if the charges were being dismissed. Consequently, either Bishop Matthews wanted to dismiss the charges, and the Presiding Bishop objected; or else Bishop Matthews truly believes the charges may constitute an offense under the Church canons, and so he is proceeding with his investigation.
But just what does it mean to say that ECUSA is or is not "hierarchical"? In legal proceedings, such a statement is called a "conclusion of law", reached after an inquiry into all the relevant facts. Attorneys and judges differ all the time over conclusions of law, and so it is fair to say that what the law will conclude on a given set of facts is a matter of opinion. And that is why the bishops filed their various affidavits and brief: ECUSA had given its opinion to the judges in each case that it was "hierarchical," and the bishops simply wanted to give the contrary version of that opinion.
After all, it is for the judges ultimately to decide which view is more correct (or to modify their holding to yet another version, if they are so inclined). That is what judges are paid to do. So how can the Episcopal Church (USA) possibly charge someone with discipline for expressing an opinion? Such a right is guaranteed to everyone in America by the First Amendment.
Well, if it is not opinion in the case of the Episcopal Church (USA), then is it a matter of Church doctrine? Is the polity of the Episcopal Church (USA) truly a "doctrinal" matter?
It does not matter if it were, because then the following provisions of Canon IV.17.7 would apply:
Notwithstanding any provision of this Title to the contrary, no proceeding shall be brought under this Title against a Bishop in which the Offense alleged is violation of Canon IV.4.1(h)(2) for holding and teaching, or having held and taught, publicly or privately, and advisedly, any Doctrine contrary to that held by the Church unless a statement of disassociation shall have first been issued by the House of Bishops as provided in Canon IV.17.7 (a) and thereafter the consent of one-third of the Bishops qualified to vote in the House of Bishops has been received to initiate proceedings under this Title as provided in Canon IV.17.7 (b).
Needless to say, no such "statement of disassociation" has been issued by the House of Bishops. Thus Bishop Matthews cannot be treating the bishops' alleged offense as a matter of advocating false doctrine.
That takes us back to expressing a matter of opinion. One searches in vain through the new Title IV for any offense that consists of expressing an opinion at variance with the leadership of the Church. The loosest of all the provisions is for engaging in "conduct unbecoming a member of the clergy", and if it is "conduct unbecoming" to disagree with the position that ECUSA is hierarchical, then a considerable number of clergy in the Church would have to be charged.
The idea, of course, is ridiculous on its face. And that is why these "charges" against these bishops should never have made it past the Intake Officer. In fact, if the Presiding Bishop did approve the bringing of these charges, then she herself should be charged under the provisions of Canon IV.3.1 (c):
Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for: (c) intentionally and maliciously bringing a false accusation . . . in any investigation or proceeding under this Title.
(Emphasis added.) These charges are certainly intentionally brought, because it takes, as noted above, the concurrence of the Presiding Bishop not to have dismissed them in the first instance. And are they "maliciously" brought as well?
Those who know the history of the Presiding Bishop's disregard for the canons will have no hesitation in answering that question.
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