B033 for Beginners

This summer, the General Convention (GC) of The Episcopal Church (TEC) will meet in Anaheim. I am a deputy elected by the Diocese of Rochester to that convention. This event occurs every 3 years and is the governing body of the church, setting policy and establishing our corporate understanding of how we, as Christians act out our faith in the world. It's a big ole WWJD convocation.

In the final hours of the GC 2006 a resolution was passed coded B033. It stated:

Resolved, That the 75^th General Convention receive and embrace The Windsor Report’s invitation to engage in a process of healing and reconciliation; and be it further
Resolved, That this Convention therefore call upon Standing Committees and bishops with jurisdiction to exercise restraint by not consenting to the consecration of any candidate to the episcopate whose manner of life presents a challenge to the wider church and will lead to further strains on communion.

It was clearly intended to diffuse the tension over the ordination of The Rt. Rev. V. Gene Robinson as the Bishop of New Hampshire. "Manner of life" it was clear to everyone meant openly gay or lesbian.

The President of the House of Deputies has a very concise history of the issues which led to B033 online. Click here to read it.

In Anaheim, GC will take up a number of resolutions that will seek to overturn or supplant the chilling effect that this resolution had on the election of another openly gay bishop.

Below are links to the resolutions currently before the GC 2009 which deal with B033

C007 C010 C015 C033 C036 C039 C045 C046

It is of some interest that NO resolution seeks to reaffirm it or assure its continuance.

One question has been whether B033 has durability. Does it continue beyond 2009 if not acted upon by GC 2009? Here answer is "yes." The entire opinion is at the end of the post.

So the question is:
Will General Convention 2009 , which meets in Anaheim, July 8-17:
A) Allow it to remain in force
B) Pass a resolution that will supersede it.
C) Pass a resolution to repeal it
D) Repeal it and apologize for its discriminatory nature.

Opinion: This writer would prefer option D, but is reminded of how long it took anyone to publicly apologize for slavery.

Analysis of the Status of Resolution B033, passed by General Convention 2009
Deputy Sally Johnson, Chancellor to the President of the House of Deputies

Part I

What is the present status of B033?

I am going to respond to this question in two parts. In this first part I will address the question is in terms of the overall structure and polity of the Church. In a separate post I will talk about the extent to which Resolutions of General Convention are binding.

The answer to this question leads to the broader question of what is the effect of a Resolution of General Convention. General Convention, with the exception of elections and a few other minor things, only acts through the adoption of Resolutions. Resolutions may be for the purpose of amending the Constitution (it takes two consecutive General Conventions), amending the Canons (it takes one General Convention), amending the Rules of Order, talking stands on public policy issues, taking positions on theological issues, making changes to the Church Calendar, directing a part of the Church to do something or refrain from doing something (i.e. directing a Standing Commission to study X and report back at the next General Convention) or encouraging, but not requiring, a part of the Church to do something or refrain from doing something (i.e. encourage use of vendors that pay a living wage).

It is a fundamental principle of our secular legal systems that when a body (Congress, state legislature, town council, board of directors, etc.) authorized to adopt a policy, rule, or other guiding statement does so, the position or rule adopted is in full force and effect until (1) it expires by its own terms - i.e. it sunsets on a certain date or event, (2) it is explicitly revoked by a subsequent act of the same body, (3) it is superseded by the subsequent adoption of something clearly contrary to the prior enactment even if the prior enactment is not explicitly revoked, or (4) a body such as a court declares the initial act to be null and void or contrary to a rule of a higher order than the act itself (i.e. The Constitution is of a higher order than the Canons. The Canons are of a higher order than the House of Bishops or House of Deputies Rules of Order). This principle is set out in some governing documents but not in many others. It is not set out explicitly in the Constitution and Canons of the Church.


So, a Resolution adopted by one General Convention remains the position of the General Convention until it (1) expires by its own terms, (2) is revoked by a subsequent act of a General Convention, or (3) is superseded by General Convention's adoption of something clearly contrary to the prior enactment even if the prior act is not explicitly revoked. A General Convention cannot bind a future General Convention, a future General Convention can always change what a prior General Convention has done.*

Unlike the states and the federal government, the Church does not have a Supreme Court with the authority to declare a Canon or other act of General Convention unconstitutional or null and void. Article IX of the Constitution says, "The General Convention ... may establish an ultimate Court of Appeal, solely for the review of the determination of any Court of Review on questions of Doctrine, Faith or Worship." General Convention has never established an ultimate Court of Appeal. Even if it did, its jurisdiction would be limited and would not include matters of "Discipline" or anything not within the definitions of "Doctrine," "Faith" or "Worship." The Church has Provincial Courts of Review for hearing appeals from diocesan Ecclesiastical Trial Courts. Their rulings may be binding on Diocesan Ecclesiastical Trial Courts within the Province. The Church also has a Court of Review for the Trial of a Bishop to hear appeals from the Courts for the Trial of a Bishop. It can issue rulings that may bind Courts for the Trial of a Bishop. The rulings of the Court of Review for the Trial of a Bishop, however, are not binding on Provincial Courts of Review or Diocesan Ecclesiastical Trial Courts. Similarly, the Court of Review for the Trial of a Bishop does not have jurisdiction to resolve differences in the decisions of the Provincial Courts of Review nor does it have jurisdiction to review acts of General Convention and declare them null and void or contrary to the Constitution or Canons. General Convention is the ultimate decision-maker about, and interpreter of, the Constitution, Canons and other acts of General Convention.

Therefore, Resolution B033, since it did not contain language stating when it will expire, remains the position of General Convention until General Convention revokes it, adopts something contrary to it so as to supersede it, or in some way determines that it is contrary to a Church rule of a higher order such as the Constitution or Canons and is therefore null and void or of no effect.

Part II


For just a moment, let's look at the function of rules, laws, positions, statutes, processes, and the like. Groups of people have found it useful to have an agreed upon set of ways for (1) the process of how they will decide certain things and (2) what the decision is on certain things. These agreed upon ways save time and conflict in that every time a question arises the group does not have to first decide how it will decide the answer to the question and in many instances when the question has been considered before, the group can say, "We've already decided that and we're not going to change it."

The discussion of the current status of B033 focuses on the later. What question did General Convention answer through its adoption of B033 and what is the status of that decision? In my previous post I discussed that a decision of General Convention stands until General Convention changes it (I'm ignoring those situations where the decision itself contains an expiration date). Having established that B033 is still in effect, what status does it have?

Sometimes people in the Church will say, "If it's in the Canons, it's binding. If it's not in the Canons, it's not binding." Or, "A Canon is binding but a Resolution of General Convention isn't." I have heard others say, "Canons are aspirational statements, they are not laws." B033 was not an amendment to the Constitution. It was not an amendment to the Canons. It was a Resolution of General Convention. A review of General Convention resolutions shows that some of them are clearly intended to be binding and some of them are intended not to be binding. For example, the budget priorities and budget are intended to bind the Church. A Resolution directing a Standing Commission to study an issue and report back at the next General Convention is intended to bind that Standing Commission. A Resolution saying, "We encourage all dioceses to consider adopting a policy on X" would not be binding in the same way.

The Court for the Trial of a Bishop In The Matter of The Rt. Rev. Walter Righter considered this matter in depth but for the limited purpose of whether a Bishop's failure to follow a General Convention Resolution could be the basis for discipline under Title IV of the Canons. It concluded that either a Canon or a "mandatory" resolution which called for specific penalties could be used as the basis of ecclesiastical discipline. Bishop Righter was charged with violating the "Doctrine" of the Church because he ordained a non-celibate man to the Diaconate, contrary to Resolution A-53s of the 1979 General Convention. That Resolution stated in part, "We believe it is not appropriate for this Church to ordain a practicing homosexual or any person who is engaged in heterosexual relationships outside of marriage. ... that this General Convention recommend to Bishops, Pastors, Vestries, Commissions on Ministry and Standing Committees, the following considerations as they continue to exercise their proper canonical functions in the selection and approval of persons for ordination." The Court for the Trial of a Bishop held:

Resolution A-53s is clearly recommendatory and therefore not binding on the members of this Church for the purpose of canonical discipline under Title IV. ... it does not set forth a clear constraint which allows canonical disciplinary action. The Church may forbid what has been done here, but not by a recommendatory resolution. The Court for the Trial of a Bishop, In the Matter of The Rt. Rev. Walter Righter, Opinion, page 14.

The Court went on to say:

The Court would remind the Church that there are ways we could order our life less ambiguously. General Convention has the authority to pass Canons which are binding, and could, perhaps, adopt resolutions which clearly declare themselves to be mandatory, and which call for specific penalties when they are disobeyed. The Court for the Trial of a Bishop, In the Matter of The Rt. Rev. Walter Righter, Opinion, page 19.


So, Resolutions of General Convention can be as binding as Canons in terms of being used as the basis for discipline if they meet the criteria set forth above. Resolutions can be intended to bind persons or bodies but not to the extent that they can be the basis for Title IV discipline. And, they can clearly be recommendatory. The language of a Resolution must be looked at carefully and in a broader context to determine to what extent it was intended to be binding and in what ways.

Deputy Sally Johnson
Chancellor to the President of the House of Deputies