It seems that the Episcopal Church is in a constant state of litigation. Over the last decade and a half, we’ve seen repeated conflict across the church in response to the moves toward full inclusion of LGBT persons in our life and ministry. Now, millions of dollars later in legal fees, with courts consistently affirming the Episcopal Church’s position that dioceses are not independent of General Convention, another round of such litigation is likely. First, we’ll have to see how things play out within the Church.

This past summer, General Convention passed resolution B012 which mandated that bishops opposed to same-sex marriage make pastoral provisions for couples, congregations, and clergy who sought to solemnize such marriages in their dioceses. Several of the bishops opposed to same-sex marriage have offered such provision, some are still discerning. One, Bishop William H. Love of the Diocese of Albany, announced in November that he would not offer such pastoral provisions.

As was to be expected, an disciplinary proceeding was begun against Bishop Love. Such proceedings, or complaints, can be made by anyone within the Church, so the likelihood that someone or some group would initiate the proceeding was highly likely. Less certain was whether the Presiding Bishop would take any additional action while the disciplinary proceeding was moving forward. Yesterday, Presiding Bishop Curry published his response: to restrict partially and temporarily Bishop Love’s exercise of ministry. Specifically, Bishop Love may not participate in any diocesan disciplinary proceeding against a priest who performs same-sex marriage, “nor may he penalize any member of the clergy or laity or worshipping congregation of his Diocese for their participation in the arrangements for or participation in a same-sex marriage in his Diocese or elsewhere.”

Now, Bishop Love has issued his response to the response. Unsurprisingly, and unfortunately, he will appeal the Presiding Bishop’s restriction on his ministry and vigorous challenge the disciplinary proceeding. He bases his appeal on the definition of marriage in the 1979 Book of Common Prayer:

The official teaching of this Church as outlined in the rubrics of the Marriage Service in the Book of Common Prayer is that: “Christian marriage is a solemn and public covenant between a man and woman in the presence of God.” (BCP 422). Canon 16 of the Constitution and Canons of the Diocese of Albany upholds this teaching and remains in effect until it is either changed by the Diocesan Convention, or it is legally proven to be over-ridden by the legitimate actions of General Convention; none of which has yet taken place.

Now, I’m no canon lawyer, but it would seem to me that because the Book of Common Prayer is itself authoritative because of an act of General Convention, General Convention has the power to rescind or modify anything stated within the BCP. Likely, there’s some fancy canon lawyer parsing of later General Convention actions, that will be the hinge on which any ecclesiastical disciplinary proceeding will depend.

The other key element in Bishop Love’s defense is his appeal to the definition of marriage in the Constitution and Canons of the Diocese of Albany, which he says will remain in effect until changed by Diocesan Convention or legally proven to be over-ridden by the legitimate actions of General Convention. Here Bishop Love is appealing to the familiar, but often proved wrong, argument that dioceses are independent of General Convention. It’s wrong, because General Convention has the power to create and dissolve dioceses.

What’s so unfortunate about all this is that it is avoidable just as all of the earlier litigation and attempts by bishops, other clergy, and congregations to leave the Church. When Bishop Love was ordained deacon, then priest, and consecrated bishop,, he vowed to ” I do solemnly engage to conform to the doctrine, discipline, and worship of the Episcopal Church.’

If he is no longer able to conform to the doctrine, discipline, and worship of the Episcopal Church, he should step down as bishop. It’s really quite simple.

Instead, the Church will expend energy and resources on this internal battle. Should Bishop Love be unhappy with the final result of his appeal and of the disciplinary proceeding’s ultimate outcome, he may choose to pursue his cause in the civil court system as many other bishops and dioceses have done. If he does, it’s likely that more millions of dollars will be expended in the effort.