The Existing Canonical Authority for Women’s Ordination

by Henry H. Rightor

from Towards a New Theology of Ordination: Essays on the Ordination of Women, pp.101-110.

Ed. by Marianne H. Micks and Charles P.Price, Virginia Theological Seminary,
Greeno, Hadden &Company Ltd. Somerville, Mass., 1976

Henry H. Rightor is Arthur Lee Kinsolving Professor of Pastoral Care at Virginia Theological Seminary. Following Harvard Law School and prior to his ordination he was a practicing lawyer in Arkansas.

There are no canonical or constitutional barriers to the ordination of women to the diaconate, priesthood or episcopate in the Protestant Episcopal Church in the U.S.A.

The canonical situation here calls to mind the judgment of Samuel Johnson regarding the strawberry: “Doubtless God could have made a better berry than the strawberry; but doubtless God never did.” In the same vein one can say that doubtless General Convention, the governing body of the Episcopal Church in the United States, could have enacted barriers to the ordination of women; but doubtless General Convention never did. Down through the years Convention has exercised its authority to restrict ordination to each of the three orders of ministry to persons with various qualifications, such as age; but one searches in vain for a constitutional or canonical restriction of ordination to males in any of the three orders.

The Constitution, Canons and Ordinal generally refer to persons in all Holy Orders by words of male gender. Where the context of the words is not violated, however, this church and its convention, like the civil courts, have always given a generic interpretation to such words as “man,” “brother” and the referent pronouns “he,” “him” and “his.” This has been true with regard to both the canons and the liturgy. If an example were needed, there is the familiar creedal phrase, “for us men and for our salvation." To say that females are not included in the word “men” would be considered outrageous.

In one instance the House of Clerical and Lay Deputies of General Convention, acting apart from the House of Bishops, departed from the general rule of generic interpretation which includes females in words of male gender. At the 1949 Convention the Deputies, using their exclusive authority to judge the qualifications of the members of that House, ruled that women who had been elected Lay Deputies were not “laymen.” This ruling meant that women did not meet the constitutional requirement that only “laymen” could serve as Lay Deputies.(1)

The arbitrary nature of the House of Deputies’ restriction of “laymen” to male deputies is apparent from the history of that same House. At the preceding Convention in 1946 the identical issue was raised when the qualifications of a woman elected a Deputy to that Convention were questioned for the same reason. Serving as a Lay Deputy from New York at the 1946 Convention was an eminent jurist, the Hon. Augustus N. Hand. He urged the House of Deputies to follow the normal practice of interpreting “laymen” as a generic word which includes females, and Mrs. Randolph H. Dyer of Missouri was seated as a Lay Deputy.(2)

The question of seating women as Lay Deputies remained subject to the arbitrary interpretation of the House of Deputies until 1970. In that year a constitutional amendment removed the question from the jurisdiction of the House of Deputies by changing the word “layman” to “lay person” in the article defining the qualifications of Lay Deputies.

The obvious method of restricting generic words so as to exclude females is to use the word “male” in a particular canon or constitutional provision. For example, the office of lay reader was restricted by canon to “males” until 1969. However, the General Conventions of both 1970 and 1973 failed to take the obvious steps to end the debate regarding the ordination of women: either of those Conventions could have restricted by canon the diaconate, or the priesthood, or the episcopate, or any two or three of the orders to “males,” had this been the intent of either Convention. It can not seriously be argued that the House of Deputies’ failure, in those years, to adopt resolutions favoring the ordination of women to the priesthood had the effect of restricting that order to males. The vote each time was a Vote by Orders and by Dioceses.

Note on the Vote by Orders and by Dioceses

Article I, Section 4 of the Constitution provides that on “any question” a majority vote of the Deputies present shall suffice unless a higher number is called for by the Constitution or the Canons, or “unless the Clerical or the Lay representation from any Diocese require that the vote be taken by orders. In all cases of a vote by orders, the two orders shall vote separately, each Diocese and Missionary Diocese having one vote in the Clerical order and one vote in the Lay order.” A majority of the Dioceses voting affirmatively on the question in both orders is necessary for its passage.

Every Diocese is normally represented by its full complement of four Clerical and four Lay Deputies. The vote of a diocesan deputation in one or both orders is often divided, with two votes for and two against the proposed question. The attainment of a majority vote in both orders, necessary for passage of a question, would not be too difficult if the diocesan deputations with divided votes were treated as having abstained from voting; these deputations would not then be included in the number of which a majority is required for passage.

Attainment of a majority vote on a question is made substantially more difficult, however, by Rule 41 of the Rules of Procedure in the House of Deputies. This Rule states that the votes of diocesan deputations in each order are recorded as “Aye,” “No,” or “Divided.” So long as the divided deputations are included in the number of which a majority is required for passage of a question, a “Divided” vote has the same effect as a “No” vote. Thus a 2 - 2 vote in any deputation is no different from a 3 - 1 or 4 - 0 “No” vote, with regard to the outcome of a proposed resolution on a vote by orders and by dioceses.

Chancellor Arthur W. Machen, Jr., of the Diocese of Maryland, has written an essay entitled “General Convention Voting Procedures or—The Strange Game of Episcopal Roulette.” He simplifies his analysis by assuming a House of Deputies composed of 1,000 members, with 500 clerical and 500 lay deputies from 125 dioceses, rather than the 113 dioceses represented at the 1973 Convention. Regarding the vote by orders he concluded: “All it takes is two votes in either order from 63 dioceses, or 126 deputies out of a total of 500 in that order, to cause that order to be totally divided. Thus, the question could fail by a negative vote as meager as 25.2% of one order or 12.ó% of the entire House.

“On a constitutional question requiring a two-thirds vote, the power of the minority is even more startling. In our hypothetical House of 125 dioceses, a minimum of 84 must vote affirmatively in both orders for the proposal to pass, and it takes only 42 diocesan votes in either order to defeat it. It follows that only two deputies from any of 42 dioceses, or a total of 84 out of 500 in either order can block anything. These numbers represent less than 17% of either order and less than 9% of the entire House."

The vote by orders and by dioceses in the House of Deputies makes it possible for a relatively small minority in either the clerical or the lay order to vote down any resolution. The tallies in both the 1970 and the 1973 Conventions on the resolution favoring the ordination of women demonstrate an interesting fact: had a contrary resolution been presented, that is, had the resolution favored the restriction of the priesthood to males, it too would have been defeated at both Conventions — and by a much larger vote. The point is that the simple failure of the Deputies to pass any such resolution, whether the resolution favors ordaining women or whether it favors restricting ordination to males, is precatory at best. (Bishops and Dioceses have always remained free to reject the “askings” of Convention. For instance, the diocesan authorities of New Mexico and Southwest Texas refused in 1969 to pay to the national church its quota, the “asking” made of it by Convention, because they did not like one grant made from the General Convention Special Program.) Surely the failure of the Deputies to adopt a resolution favoring the ordination of women to the priesthood has none of the obligatory effect of a canon, enacted by the entire Convention, restricting that order to males; and, without such restriction by Convention, the normal interpretation of generic words assumes the inclusion of females in the relevant constitutional, canonical and liturgical provisions for ordination.

The general rule of including females in generic words was in no way affected, where their ordination is concerned, by the rule of construction included in Canons III. 2 and 3, adopted in 1973. These canons have to do with Candidates for Holy Orders, and Section 1 of both canons recites that “words of male gender shall also imply female gender.”

Note on the Effect of the Generic Interpretation of Words of Male Gender Having Been Expressed in Canons 111. 2 and 3

The General Convention of 1973 adopted Canons III. 2 and 3, written by an ad hoc committee of which the author of this essay was a member. Section 1 of each Canon says: “This Canon shall be interpreted in its plain and literal sense, except that words of male gender shall also imply the female gender.” Canon 2 is entitled “Of Candidates for Holy Orders"; Canon 3, “Of the Normal Standard of Learning and Examination of Candidates for Holy Orders.”

In documents such as wills, the express grant of a certain object or sum of money to a particular devisee can be held to bar the devisee’s claim that the deviser intended the devisee to receive additional objects or sums. The rejection of the claim would accord with the maxim, “expressio unis est exclusio alterius”; the mention of one thing implies the exclusion of another. However, the mention of generic construction of words of male gender in two particular canons could not, by this or any other principle of interpretation, be considered to exclude the generic construction of the same words throughout the entire body of canons, enacted serially over a period of many years.(3)

The recitation of the rule of construction in Canons III. 2 and 3 did not create the rule, nor did it limit application of the rule to the instances where it was expressed. The recitation of the rule of generic construction is, rather, similar to the practice of printing “he” in italics in the Baptismal Service and, more recently, in the Confirmation Service of the Book of Common Prayer. The rules of construction in the two canons that came before the 1973 Convention for adoption were helpful reminders that no debate regarding women’s ordination was necessary to their passage. The different print of “he” in the Baptismal and Confirmation Services did not create its generic nature in these services; such print is, rather, a helpful reminder to clergy to substitute “she” when the person involved is female. (A thorough dicussion of the use of different type in these instances appears in Board of Presenters v. Wendt, Diocese of Washington, 1975, p. 15 )

Seriously to affirm that a rule of construction is necessary for each canon regarding the ordained ministry to permit the generic interpretation of words of male gender—or to maintain that “women” must be specifically mentioned in such canons before they apply to females—would produce absurd results. It would mean, for example, that those women whose ordination to the diaconate is now unquestioned could not be disciplined in any way under the existing canons; for all of the canons regarding ecclesiastical discipline use words of male gender exclusively, and these words require a generic interpretation if they are to apply to women.

Note on Canon III. 26, “Of Women and the Diaconate”

A unique and unrelated instance of the specific mention of “women” in a canon regarding their ordination to a particular order of ministry is found in Canon III. 26, “Of Women and the Diaconate.” This canon was adopted in 1970 to replace old Canon 50, “On Deaconesses,” pursuant to the recommendation in the Report to the 1970 Convention by the Joint Commission on Women Church Workers.4 . . . Resolution I recommended by the Commission proposed that existing deaconesses “be declared to be within the Diaconate.” This resolution was adopted by Convention separately from the succeeding resolutions recommended by the Commission.5 . . . The succeeding resolutions were adopted as new Canon III. 26, replacing old Canon 50.6 The intent of the new canon, read in conjunction with the resolution declaring deaconesses to be within the diaconate, was clear: it was to permit women who wished to serve permanently in the more limited order of ministry to continue to do so in the diaconate rather than as “deaconesses.” It is for this reason that Section 5 of Canon III. 26 made it possible for such women to be exempted from the provisions relating to the priesthood in requirements for postulants and candidates for Holy Orders.

There are those who would agree with all the foregoing statements in this article, but who are disturbed by the fact that those who wrote and adopted most of the constitutional and canonical provisions regarding ordination did not have women in mind. Those who are hesitant, for this reason, to see women ordained to the priesthood or episcopate are due a respectful answer. For in the interpretation of some documents, a will being a fair example, the intent of the author at the time of writing is often conclusive.

A will is a “dead” document, however, compared to a constitution and the laws or canons it controls. In societies informed by the Anglo-American common law, constitutions

must be read as embodying general principles meant to govern society and institutions of government as they evolve through time. It is therefore this Court’s function to apply the Constitution as a living document to the legal cases and controversies of contemporary society.(7)

This quotation is from the opinion of a three-judge Federal Court in Alabama, where a civil suit successfully depended on the equal protection clause of the 14th Amendment to attack an Alabama statute stating that only “male residents of the County” were qualified for jury service. The defense contended, unsuccessfully, that “the 14th Amendment was not historically intended to require the states to make women eligible for jury service.”

It is suggested here that the several dioceses of this church, by virtue of their existing canonical authority, need not wait for further action by General Convention to ordain women to the priesthood. They are called on by our tradition to look beyond the historical intent of the Constitution and Canons, and to treat them as “living documents,” to be applied “to the controversies of contemporary society.”

Note on the Use of Analogues from Civil Law to Interpret the Constitution and Canons of the Church.

Strictly speaking, there is no Canon “Law” in the Protestant Episcopal Church in the U.S.A. comparable to that in the Church of England and other Established Churches, whether Anglican or not. The Constitution and Canons of the Episcopal Church in this country more nearly resemble the by-laws of a voluntary association, which depend for their context on the civil law which surrounds them. It is this context of civil law which justifies the use of civil law analogues to interpret the Church’s Constitution and Canons.

The use of the civil law context is expressly validated in Canon IV. 3, Sec. 21, regarding Courts and their Procedures, as follows:

Sec. 21. In the conduct of investigations preliminary to presentments, as well as in all trials, the laws of the civil jurisdiction in which such investigation or trial is had, so far as they relate to evidence, shall be adopted and taken as the rules by which said Board of Inquiry, Commission, or Court, shall be governed, and trials shall be conducted according to the principles of the common law as the same is generally administered in the United States, except in those Dioceses where Ecclesiastical Courts are provided for by Constitution or Statute, in which case the same shall govern.

In White and Dykman’s Annotated Constitution and Canons (Greenwich, Conn.: Seabury Press, 1954, Vol. II, p. 323) there is the following terse commentary on the exception made in the above canon for provision for ecclesiastical courts by a civil constitution or statute: “An exception is made for dioceses where ecclesiastical courts are provided for by constitution or statute, of which there are none” [Emphasis added].

Conclusion

It is submitted that no action by General Convention is required to give a Diocesan the authority to ordain a female deacon to the priesthood under Canon III. 11, given the recommendation of the Standing Committee of the Diocese and the required certificate from the Minister and Vestry of the Parish where she resides. The same authority, presently existing, also permits Diocesans to regularize the ordination of the female deacons ordained to the priesthood in Philadelphia on July 29, and in Washington, D.C., on September 7, 1975. (8)

At the 1973 General Convention the House of Bishops seems to have been well aware that authority to ordain women deacons to the priesthood did, in fact, exist. For, to prevent any such ordinations, a majority of the Bishops resorted to an alarming expedient on the last afternoon of the Convention; by a vote of 53 to 40 they invoked “the principle of collegiality,” in an apparent effort to intimidate individual bishops who might otherwise exercise their authority to ordain women to the priesthood. The entire resolution is set out herewith:

WHEREAS, The House of Deputies has, in this 64th General Convention, rejected the principle of the ordination of women to the priesthood; and

WHEREAS, The Presiding Bishop-elect has called for the appointment of a competent committee to study in depth the matter of the ordination of women; and

WHEREAS, It has been said that individual Bishops have expressed their intention to ordain women to the priesthood in spite of the action of the House of Deputies; therefore, be it

RESOLVED, That the House of Bishops put these rumors to rest by a public affirmation of its adherence to the principles of collegiality and mutual loyalty, as well as respect for due constitutional and canonical process.(9)

“Collegiality” does not appear in the church’s Constitution, Canons or Ordinal, nor has it been found in any index of prior resolutions of General Convention or the House of Bishops. The adjective “collegial” had been used previously only once, when new Rule XXV was adopted as a rule of order by the House of Bishops in 1970.(10) “Collegial” is there used in a precise and understandable way: to describe the kind of membership in the House of Bishops that may be given a Bishop of a church in the Anglican communion, resident in a jurisdiction of this church. The “collegial” member, under Rule XXV, is admitted on a two-thirds vote of the House and given a seat and voice, but no vote.

Clearly the House of Bishops has never been given the power to invest the “principle of collegiality” with any such arcane meaning as has been given it by the Bishops of this church since 1973. Those Bishops who participated in the Philadelphia ordinations of 1974, and the Washington ordinations of 1975, refused to be bound by the new “principle of collegiality.” However, this principle has been allowed by other bishops to override their canonical authority to ordain women to the priesthood and to regularize the irregular ordinations that have already taken place. The surrender of episcopal authority and responsibility to the “principle of collegiality” is admittedly true of several Bishops who are both conscious of their canonical authority and desirous of ordaining qualified women to the priesthood.

Some Bishops have indicated that they feel restrained by “collegiality” only through the forthcoming 1976 Convention, after which they will begin ordaining women even if Convention fails to act. Because they are aware of their existing authority to ordain women to the priesthood, the action they seek must be action by the House of Bishops, rather than action by General Convention as a whole. It was not Convention but the House of Bishops which imposed the restraints of “collegiality” on its members at the close of the 1973 Convention; and it is obvious that only that House can remove them if, indeed, they do exist.

The “principle of collegiality,” as it has been employed, remains an offense to the Protestant Episcopal Church in the U.S.A. whether its duration is indefinite, or whether it is only to be honored between the meetings of the House of Bishops which take place at General Convention. The offense does not lie in the respect which members of the House of Bishops properly show each other; it lies in the fact that the “principle of collegiality,” adopted by one House of General Convention, should arbitrarily be used to override the Constitution and Canons of this Church for any length of time. The maxim, “justice delayed is justice denied,” applies to ecclesiastical as well as to civil institutions.

There remains one area, not strictly canonical, in which a resolution by Convention favoring the ordination of women to the priesthood would be not necessary, but helpful. The Anglican Consultative Council has advised that a Bishop should have the approval of his “Province” (in this Church, General Convention) before such ordinations take place in any diocese of the Anglican Communion. The advice and requests of that Council, like those of the Lambeth Conference, are due great respect; this, although their requests and advice have no binding control over the actions of any church in the Anglican Communion.

There comes a time, however, when the Christian mission of a church takes precedence over things a particular church might like to do. Today seems to be such a time in the life of this church, when its mission to men as well as women is hampered by the arbitrary treatment of women as less than full members of the Body of Christ. This treatment continues so long as women are denied access to the priesthood. The mission of this church demands that they receive now, not at some uncertain time in the future, the regular ordination now permitted them by the church’s Constitution and Canons.

Notes

1. Journal of General Convention, 1949; p. 102.

2. Journal of General Convention , 1946; p.102.

3. Cf. 73 American Jurisprudence 2d, “Statutes,” Sec. 212, together with cases cited.

4. Journal of General Convention1970; pp. 769-70.

5. Op. cit.,p. 270.

6 Op. cit., p. 249.

7. White v. Crock, 251F. Supp.401(1956). (Emphasis added.)

8. Cf. Standing Committee v. Beebe, Diocese of Ohio, 1975.

9. Journal of General Convention, 1973; p.124.

10. Journal of General Convention , 1970; p.77.

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