"But It Shall Not Be So Among You": Some Reflections Towards the Reception of the Windsor Report within ECUSA

Grieb, A Katherine

Can our biblical texts and legal traditions help us to assess the wisdom of the Windsor Report's recommendation for tighter structures and more formal procedures? Among other texts, the two rival accounts of how Israel got its first king form an important precedent for today's conversations about covenant and centralized authority. Similarly, the long conversation with text and tradition that comprises biblical interpretation has dynamics like the classic law/equity debate stemming from British common law and analogous discussions about interpreting the United States constitution and congressional statutes. The Windsor Report wisely bases its primary arguments on Paul's insistence that church unity is both commanded by God and worth the hard interpersonal and cross-cultural work it demands of us all. Nevertheless, a subsidiary theme of the Report hinting that our difficulties could be solved by increased legal structure threatens to undercut that powerful theological vision.

Before attending seminary, I studied law. During the first semester of law school, in a course on contracts and remedies, we were introduced to the ancient English distinction between law and equity. To oversimplify greatly, the tradition of common law developed in the civil courts, while the remedies associated with equity originated in ecclesiastical courts. Law regarded only what was contained within "the four corners" of a legal document: if the defendant had in fact signed the contract and subsequently defaulted, then the court would find for the plaintiff and apply the legal penalty. The justice of law is traditionally blind to the identity of the parties and to external factors. Law focuses on the facts of the case as contained in the contract itself.

Equity, on the other hand, claimed the right to notice other extenuating circumstances that were relevant to the case and to suggest more appropriate remedies. The equitable tradition of church law insisted that if the defendant could hardly read or did not understand the nature of a contract, and if the plaintiffs sales agent had made misleading statements designed to confuse or apply undue pressure to sign, and if the plaintiffs company had a long history of exploiting those who were poor, powerless, and illiterate, these factors, external to the "four corners," were relevant to the question of justice between the parties. Equity asks whether penalties should be applied against corporate greed (even though the companies might be operating entirely within the law) instead of against poor and poorly educated persons (who had admittedly signed the contract and subsequently defaulted exactly as the plaintiff had claimed). This debate goes on today with respect to the aggressive marketing of credit card companies, their targeting of poor credit risks, subsequent collection practices, and the proposed tightening of bankruptcy laws.

The tendency of law is to try to abolish equity by increasing legislation and adding structure. The apparent solution to the perceived problems of flexibility and ambiguity is tighter control, greater specificity. More statutory law, designed to give the courts less room for interpretation, is the consistent response of law to equity. Law values conservation and predictability, so important to the corporate world, over reforms that call its established ways of operating into question. But without equity, it is difficult to see how law would ever question its own assumptions or initiate reforms of its own practices.

Seminary and subsequent biblical studies have increased my appreciation of these complex dynamics. Whereas the landowner surely has the right to harvest all the way up to the four corners of the field, something like equity urges that the edges of the fields be left for the poor to glean (Deut. 24:19-22). Credit card companies would blanch at the idea of a Jubilee year when debts were forgiven (Lev. 25), but a reference to that equitable adjustment is engraved on our Liberty Bell. When Judah says of Tamar that she is "more in the right" than he is (Gen. 38:36), even though he has just condemned her to death under law for her actions, his reversal of the judgment depends on something like a notion of equity. Even the concept of "civil disobedience" promulgated in Acts 5 ("We must obey God rather than people") has its origins in the biblical equivalent of "equity": it assumes that those in power are not likely to question their own assumptions and may be blind to issues outside their own self-interest. Article XIX of the Articles of Religion applies this idea to the government of the church as well when it insists that "As the Church of Jerusalem, Alexandria, and Antioch have erred; so also the Church of Rome hath erred, not only in their living and manner of ceremonies, but also in matters of Faith." The very notion of the church as something which is semper reformanda (always to be reformed) assumes that at least sometimes the church shares in the blindness of the world around it.

Surely no one wants the situation described in Judges 21:25 where "there was no king in Israel; all the people did what was right in their own eyes." Yet already in Judges 8, Jothams parable warns against uncritical acceptance of kingship. More structure by itself does not automatically solve the problem of lawlessness. In one of I Samuel's blended accounts of how Israel got its first king, the writer assumed it was because the people of God wanted to be like the nations around them (8:4) and had rejected God's kingship over them (8:7). The prophet Samuel warns that there may be tension between the ruling power and the Spirit of the Lord. Indeed, the apparently perpetual triangle of king, court prophet, and God's prophet is played out in subsequent generations. The language of "covenant" in Scripture, theologically prior to either king or prophet, is more often associated with the prophets, like Moses, who call Israel back into covenant relationship with God. But it can also be associated with the Zion theology of "divine right" of kings and the eternal covenant of God with King David and his seed. Covenant turns out to be a complex idea that can resist attempts to reform institutions in the name of the "four corners" of the contract.

The long conversation with text and tradition that comprises biblical interpretation has dynamics similar to the law/equity debate and to the ongoing discussion about interpreting the U.S. constitution and congressional statutes. There are supporters of enforcing "what the text literally says" (the four corners) no matter how dire the consequences, including the death penalty for "a man who lies with a man as with a woman" since that is what it says in the text (Lev. 20:13). There is a perennial debate about how these biblical texts can be both the Word of God and human words traceable to distinct historical circumstances and written for particular reasons that may or may not be easy to decipher or apply today. And just as there has been a distinction between the "letter" of the law and its "spirit" (or the Spirit which moved it) from at least the time of Paul (2 Cor. 3:6), so, for example in the debates about slavery, the far greater weight of the proslavery biblical texts was eventually set aside in favor of the Spirit that appeared to call them into question. The Bible itself is as full of examples warning against an overly literal interpretation of Scripture as it is of texts warning that nothing is to be added or subtracted from the words on the page.

I have been reminded of this traditional tension between law and equity in recent discussions of the Windsor Report, an important compromise document designed to help the Anglican Communion move forward, without schism if possible, after the controversial actions taken by the Episcopal Church USA and the Anglican Church of Canada, and the subsequent controversial reactions by other member churches of the Anglican Communion, especially the crossing of diocesan and provincial boundaries by bishops.

The most important contributions of the Windsor Report are its passionate insistence that it is not too late to learn how to walk together as an Anglican Communion, and its boldness in asking those whose actions and reactions have provoked the most controversy: How much do you care whether we go on as an Anglican Communion? This question is sharply posed in the form of specific invitations to express regret, not for the actions taken, which it is assumed were taken as a matter of conscience, but for the way in which these actions have impaired or risked impairment of communion. Along with the expression of regret, all the dioceses and provinces involved are asked to declare a moratorium on any further such actions and reactions, in order to give the Anglican Communion time for its various members to talk and listen to one another, to think and pray, and to attempt to correct misperceptions of intention and misstatements of fact.

The Windsor Report also specifically requests of ECUSA an account, based on the traditional sources of authority in Anglicanism, of its actions in consecrating Bishop Robinson and allowing some diocesan clergy to assist at same-sex blessings (para. 135). This invitation models a willingness to consider a minority view within the Anglican Communion, one that has had a difficult time getting a hearing for the last two or three decades. At the same time, it signals that ECUSA has not successfully provided such an account and that feelings on this issue are intense. In all of these ways, the Report has framed the debate in such a way that it is not only possible but actually desirable for serious concessions to be offered on both sides that signal an ongoing commitment to the Anglican Communion. The genius of the Report is that it defines the moral high ground that all sides want to claim in terms of statements and actions that both further the constructive debate and limit the opportunities for escalating the conflict. Its own powerful theology of the cross functions to point out the destructiveness of the rhetorical posturing that defines the opposing view as that of the enemy.

Not surprisingly, the Windsor Report has as its primary conversation partner Paul, who spent most of his career working for church unity against serious odds. In addition to describing Paul's early church experiences, the Report provides an excellent account of "biblical authority" that rightly locates authority primarily in God, in the Word of God, Jesus Christ, and in the Holy Spirit. Reading the Report, one senses the power of the lively word of God in Scripture and the rich heritage of ecclesial biblical interpretation as treasures that ought not to be squandered in the heat of controversy. The Report describes a tradition of Anglicanism well worth the hard work of staying in communion.

All of these features of the Windsor Report make it an invaluable resource for the present crisis within the Anglican Communion. But the Report does a great deal more as well. Along the way, it provides a curious history of women's ordination in an apparent dramatic contrast to the history of the present conflict. It claims that ECUSA assumed the divisive issues were adiaphora and could therefore be handled locally, while most of the rest of the Anglican Communion did not. And it proposes a number of additional legislative and structural modifications to strengthen the Instruments of Unity in the Anglican Communion. Among these are the proposed covenant, procedural steps that could be taken by the Archbishop of Canterbury to help protect the Anglican Communion, and the suggestion that the Archbishop of Canterbury's role might be enhanced by a Council of Advice. The Report also suggests that in addition to four named Instruments of Unity, Anglican Communion common law might function as a fifth instrument of unity.

It is these additional elements that, ironically, function to call into question the vision described by the biblical/theological sections of the Report. Having painted a powerful picture of an Anglican Communion inhabiting a richly furnished ecclesial tradition of lively engagement with the living Word of God, through biblical study and theological reflection, the Windsor Report challenges the provinces that seem to be putting the Anglican Communion at risk to self-discernment and decision: Is the future of the Anglican Communion worth some temporary sacrifice of apparent self-interest so that genuine conversation and listening can occur? The argument is demonstratively persuasive. It reminds us who we are, whose we are, what the church is about, what the martyrs died for, what we want as an inheritance for our children.

But the Windsor Report does not seem to trust the power of its own witness. It cannot or will not confess the real difficulties the church has had with women's ordination at the same time it documents the progress towards unity that has in fact been won. It cannot or will not admit that it was precisely the theological importance (not the unimportance) of the current issues that have caused ECUSA and the Anglican Church of Canada to take an unpopular stand. And it cannot or will not allow the church to go on as if the more powerful and more truthful arguments would prevail by persuasion and by mutual self-submission to the compelling biblical/theological vision it describes so well. Instead, it seems to be using the proposed moratorium to rebuild its fortifications and to hire more sharpshooters.

If law looks primarily or only at the four corners of a document, then it may be the role of equity in this context to notice some other aspects of the conversation leading up to and following from the Windsor Report to raise some questions not raised by the Report itself. One such issue is the widespread perception of the arrogance of the United States. The question the Report asks ECUSA, put less diplomatically, is something like, "Are you aware that you are coming across as so arrogant that the best spin we can put on your actions is that you didn't have any idea what you were doing?" While not many of the provinces of the Anglican Communion are national churches in the way that England is, there is a closer relationship between church and state in many of them than exists in the United States. ECUSA would have had more credibility with the rest of the Anglican Communion if the church had been more outspoken in its opposition to the foreign military, economic, and environmental policies so damaging to their nations and their people. There is understandable confusion about our arrogance if ECUSA is seen as a wing of the government that takes whatever it wants and is accountable to no one.

The perception of North American arrogance is complicated by ECUSA's failure to consult widely enough and to signal clearly enough its nearly-thirty-years-long conversations predictably moving towards the actions it finally took. It is perhaps also the case that for some of that time the Archbishop of Canterbury and other Anglican leaders found the issue so distasteful that serious discussion of it was not allowed. Even when the issue was discussed at the Communion level, some of the primates returned home to provinces where the death penalty is imposed on anyone with same-sex affections, limiting frank discussion of an already difficult issue. For whatever reasons, one result of not engaging this controversial issue was that in some parts of the Anglican Communion, the people had no word for same-sex relationships, did not believe there was such a thing, or believed that ECUSA had invented it a few months before the consecration of Bishop Robinson. Perhaps this is the most important difference between this issue and the way the question of women's ordination was handled. Because there had been extensive anticipatory conversations about the possibility of some provinces ordaining women to the episcopate, primates were not surprised. There had already been agreements to disagree and assurances that women bishops would not be imposed on unwilling provinces, agreements that stand fast today. Though there were fears of potential schism, there was also more time to get used to the idea because of the conversations that had occurred. Provinces without ordained women could learn from the experiences of those, like Hong Kong, that had already ordained them.

The biblical question of whether or not Israel should become like the other nations (in having a king) raised above is also relevant. ECUSAs polity means that the Presiding Bishop functions less like the tribal chief who is never to be questioned and more like the moderator of an endless debate. Other provinces of the Anglican Communion are more likely to expect that a bishop will simply impose his own will upon his subjects. No wonder it looks like a breach of episcopal collegiality when a bishop apparently fails to hold the line. In some provinces where Christianity is assailed by forms of militant Islam, the working definition of "holiness" for the province may in fact be set by the context and not by the independent thinking of the Anglican bishop and people. Unless there is a clear agreement with such provinces to agree to disagree, similar to that involving the ordination of women, the actions of ECUSA may seem to compromise the witness or even the safety of Anglicans there. For some or all of these reasons, some parts of the Anglican Communion would find it especially difficult to hear the argument ECUSA was making-even if it had been stated clearly and consistently over a long period of time.

The Windsor Report's preferred language for the persuasive power exerted by members of the Anglican Communion upon one another is "moral authority" (for example, para. 18, 105, 115, and Appendix One, para. 3). For example, principles about "discernment in communion and inter-Anglican relations, enunciated at global level by the Instruments of Unity, have persuasive moral authority for individual churches; they do not have enforceable juridical authority" (para. 115). Classic Anglicanism persuades through compelling arguments that are expected to be matched by careful attention and serious reflection on the part of those to whom the appeals are directed. In my mind, therefore, the most distressing language in the Report occurs in paragraph 141: "Whilst proponents of actions in the Diocese of New Westminster and the Episcopal Church (USA) may argue that such advice has only moral authority. . ." (emphasis mine).

What could such language mean? It is the great privilege of members of the Anglican Communion to recognize the moral authority of the urgent appeals of other members of the Anglican Communion, precisely because of the "bonds of affection" that exist between us and among us. Within the framework of the Anglican Communion, to say that an urgent appeal from a significant majority of the Communion to one of its members "has only moral authority" is to deny the bonds of affection that we say we have for one another. This does not mean that after intense study, fervent prayer, widespread consultation, and a clear restatement of commitment to the Anglican Communion, a diocese or province may not feel bound in conscience to take action contrary to the advice and counsel offered it. But this action should never be done lightly or in a dismissive way, so as to endanger the bonds of affection that are the most precious treasure of the Anglican Communion's life together.

The Windsor Report wisely adopted the approach of Paul towards the conflicts of the early churches; it might have been otherwise. The Report could have chosen to speak in the strident tone of the Apocalypse, defining the church over against the whore of Babylon and issuing the appeal, "Come out of her, my people, so that you do not take part in her sins!" (Rev. 18:4). Or, in reverse logic, it could have demonized those who have left in the language of 1 John: "They went out from us but they did not belong to us; for if they had belonged to us, they would have remained with us" (2:19). These rhetorical strategies require only enough commitment to the church to form temporary coalitions of like-minded members. By contrast, Paul's theology of the cross describes a costly discipleship that requires much more of the body of Christ. It is considerably more difficult to live by "speaking the truth in love" as the author of Ephesians (4:15) suggests, than to adopt either of these two polemical approaches to the Communion's culture wars.

The Windsor Report has given us all the great gift of defining a vision of the Anglican Communion worth striving for. And it has challenged ECUSA to examine our staying power. Let us not be like the seed that falls on rocky ground and springs up quickly since it has no depth of root; then when tribulation and testing comes, it withers and falls away (Mark 4:5-6). Who knows whether God cannot scatter these unlikely seeds to bring forth a harvest of thirtyfold, sixtyfold, or even a hundredfold.

A. KATHERINE GRIEB*

* A. Katherine Grieb is Associate Professor of New Testament at the Virginia Theological Seminary.

Copyright Anglican Theological Review, Inc. Fall 2005
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