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The Debate over Open Communion in the Episcopal Church: Ecclesiastical Disobedience or Lawlessness?

Published online by Cambridge University Press:  13 December 2013

James D Prendergast*
Vice-Chancellor, Diocese of Los Angeles Adjunct Professor of Law, Pepperdine University School of Law and Loyola of Los Angeles School of Law


Lawyers and priests are both vested in their office by a licensing authority and take oaths to obey the law, whether civil or ecclesiastical, that governs. Within these similar settings, the appropriate authority may need to judge disobedience by the lawyer or priest. If obedience is not enforced, respect for the law will decline and lawlessness ensues. In the Episcopal Church, it is black-letter law that only the baptised may receive communion. Notwithstanding the law, priests in ever-increasing numbers are inviting all to the table. Against what standard is such conduct to be judged? The Constitution and Canons are silent. Is the standard therefore to be merely the fact that the priest thinks he or she is following the dictates of the Holy Spirit? Or is there a real standard for judgment? Perhaps the gloss around civil disobedience and the rules of professional responsibility of lawyers may provide a more objective guide. This article discusses the debate over open table and the current black-letter law, and considers ecclesiastical disobedience under the guidance of the standards for legitimate civil disobedience. In addition, it considers the apparent desire of the bishops for the best of all possible worlds – having a law that the greater Church will appreciate, but then not enforcing it. The result may be more table fellowship but also anarchy.

Copyright © Ecclesiastical Law Society 2014 

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1 The Constitution & Canons Together with the Rules of Order for the Government of the Protestant Episcopal Church in the United States Of America Otherwise Known as the Episcopal Church, Adopted and Revised in General Convention, 1789–2012 (hereafter Constitution and Canons, or ‘Constitution’ or ‘Canon’ as the context requires). Copy in the possession of the author.

2 See Canon II.4; and for comparison see Canon B 5 of the Canons of the Church of England; available at <>, accessed 21 April 2013.

3 Theology Committee Report, <>, accessed 19 April 2013. Resolution D084 reads: ‘Resolved, That the 75th General Convention recognize the position of the Constitution and Canons (1.17.7), that only those who have been baptized in the name of the Father and of the Son and of the Holy Spirit shall be eligible to receive Holy Communion; and be it further Resolved, That the Theology Committee of the House of Bishops, in deliberate consultation with the Standing Committee on Liturgy and Music, and others they may deem appropriate, provide to the 76th General Convention a pastoral and theological understanding of the relationship between Holy Baptism and Eucharistic practice’. Ibid, p 1. Doe, N, The Legal Framework of the Church of England (Oxford, 1996)CrossRefGoogle Scholar, p 311, states that ‘The doctrine of the Church of England, and across the Communion, treats baptism and the Eucharist together as a dominical sacrament’, citing the Article XXV of the Thirty-Nine Articles of Religion (Book of Common Prayer (New York, 1979)Google Scholar, p 872).

4 In this article, the terms ‘open communion’ or ‘open table’ do not refer to the relatively common practice among churches of the Reformation of offering an open Eucharistic service irrespective of denominational status. Rather, the terms refer to baptismal status and the more or less explicit policy of being willing to suspend, occasionally or indefinitely, the traditional rule of ‘no communion without baptism’. Hefling, C, ‘Who is communion for? The debate over the open table,’ (2012) 129: 24Christian Century 2223Google Scholar, <>, accessed 11 October 2013.

5 Theology Committee Report, p 1.

6 Ibid.


7 Ibid, p 2.


8 Ibid.


9 Ibid.


10 Book of Common Prayer, p 371.

11 Theology Committee Report, p 4.

12 G Conger, ‘Bishops close “open table”’, Anglican Ink, 12 July 2012, p 1, <>, accessed 27 September 2012.

13 Ibid.


14 Ibid.


15 Ibid. See also D Virture, ‘“Open table” testimony hotly debated at GC2012. Should people be baptized before taking communion?’, <>, accessed 13 August 2012; M Heidt, ‘GC2012: The Episcopal Church moves one step closer to open table’, <>, accessed 13 August 2012; M Schjonberg, ‘Communion resolutions open the table for discussion’, <>, accessed 13 August 2012.


16 Conger, ‘Bishops close “open table”’.

17 (2004) 86:2Anglican Theological Review 215238Google Scholar.

18 (2004) 86:3Anglican Theological Review 473485Google Scholar.

19 See, eg, Doe, N, Canon Law in the Anglican Communion (Oxford, 1998)CrossRefGoogle Scholar, p 259.

20 See 1 Cor 11.27ff: ‘Whoever, therefore, eats the bread or drinks the cup of the Lord in an unworthy manner will be answerable for the body and blood of the Lord. Examine yourselves, and only then eat the bread and drink the cup. For all who eat and drink without discerning the body, eat and drink judgement against themselves’.

21 See the discussion on open communion at <>, accessed 13 August 2012.

22 See, eg, Article XXVIII of the Articles of Religion, which states the middle ground between transubstantiation and mere memorial: ‘The Supper of the Lord is not only a sign of the love that Christians ought to have among themselves one to another; but rather is a Sacrament of our Redemption by Christ's death: insomuch that to such as rightly, worthily, and with faith, receive the same, the Bread which we break is a partaking of the Body of Christ; and likewise the Cup of Blessing is a partaking of the Blood of Christ’. (Book of Common Prayer, p 873).

23 Farwell, ‘Baptism, Eucharist, and the hospitality of Jesus’, p 219.

24 Ibid, emphasis in original.


26 T Richstatter, ‘Sacraments of initiation: sacraments of invitation’, Catholic Update, <>, accessed 13 August 2012. The relationship of the sacraments inter se is a necessary component of the open table debate and similar debates such as the debate in the Church of England over whether confirmation is necessary for reception of Holy Communion. See General Synod of the Church of England, ‘Report of Proceedings 2011’, <>, accessed 9 October 2013. The debate over confirmation in this report starts on p 179. The Bishop of Chelmsford's comments, especially the last paragraph on p 187 are helpful. However, the issue is not questioning parishioners on the way to the altar, but the scope of the invitation to partake of the sacrament. Another observation is that disruptive debates seem to begin in the West and move East, from the Episcopal Church to the Church of England, eg in debates about communion before confirmation, the ordination of women in orders, active gay clergy and so on.

27 G Griffith, ‘Fresh hell: Episcopal Church to consider communion without baptism’, Stand Firm in Faith, 24 March 2012, <>, accessed 13 August 2012, citing T Haller.

28 Tuck, M, ‘Who is invited to the feast? A critique of the practice of communion without baptism,’ (2012) 86:6Worship 505526Google Scholar at 517.

29 Ibid.


30 Ibid.


31 Ibid, p 519.


32 Ibid, p 525.


33 Ibid, pp 526–527.


34 Williams, R, ‘Foreword’ in The Principles of Canon Law Common to the Churches of the Anglican Communion (London, 2008)Google Scholar, p 11.

35 Constitution, Article VIII.

36 Canon 4.1.1. The Ordination Right for a priest in the Book of Common Prayer requires the affirmation from the ordinand that he or she will ‘be loyal to the doctrine, discipline, and worship of Christ as this Church has received them’ (Book of Common Prayer, p 526).

37 Nemeth, C, Aquinas and King: a discourse on civil disobedience (Durham, NC, 2009)Google Scholar, p 31.

38 Ibid.


39 Ibid, p 11.


40 Aquinas, T, Summa Theologica in Adler, M (ed in chief), Great Books of the Western World, vol 18 (Chicago 1994)Google Scholar, ‘Aquinas II’, I–II, Q 96, 233. See also MacGuigan, M, ‘Civil disobedience and natural law,’ (1965) 52 Kentucky Law Journal 347362Google Scholar; Zinn, H, ‘Law, justice and disobedience,’ (1991) 5 Notre Dame Journal of Law, Ethics & Public Policy 899919Google Scholar.

41 Aquinas, Summa Theologica, I–II, Q 95, 228. See also Palumbos, R, ‘Within each lawyer's conscience a touchstone: law, morality, and attorney civil disobedience,’ (2005) 153 University of Pennsylvania Law Review 10571096Google Scholar; Finnis, J, ‘Unjust laws in a democratic society: some philosophical and theological expectations,’ (1995–1996) 78 Notre Dame Law Review 595604Google Scholar.

42 King, M, ‘Letter from Birmingham Jail’, in Why We Can't Wait (Boston, 1964)Google Scholar, p 76, available at <>, accessed 6 October 2012; also <>, accessed 8 October 2012.

43 Nemeth, Aquinas and King, pp 39–40.

44 See ‘ABA model code of professional responsibility’, EC 8-2 (stating that a lawyer ‘should endeavor by lawful means to obtain appropriate changes in the law’), available at <>, accessed 27 November 2012; see also, ‘ABA model rules of professional conduct’, Rule 6.1(b)(3), available at <>, accessed 28 November 2012.

45 Palumbos, ‘Within each lawyer's conscience a touchstone’, p 1067.

46 (1966) Hallinan v Committee of Bar Examiners, 421 P 2d 76, at 80.

47 See, eg, Palumbos, ‘Within each lawyer's conscience a touchstone’, p 1072.

48 Ibid, p 1075.


49 M Pountney, ‘Lambeth from a distance’, <>, accessed 27 September 2012.

50 Orsy, L, Receiving the Council: theological and canonical insights and debates (Collegeville, MN, 2009)Google Scholar, p 69.

51 Palumbos, ‘Within each lawyer's conscience a touchstone’, p 1074.

52 King, ‘Letter from Birmingham Jail’, p 83, emphasis added.

53 Palumbos, ‘Within each lawyer's conscience a touchstone’, p 1075.

54 Ibid, p 1082.


55 Ibid, p 1075.


56 Pountney, ‘Lambeth from a distance’.

57 Ibid.


58 I have heard the argument that open table is what Jesus would do because the apostles were not baptised at the Last Supper.

59 Turning again to the analogy of civil disobedience by lawyers: for Palumbos, civil disobedience should be incorporated into the ‘Model rules of professional conduct’ as a defence to militate against the effects of a charge that an attorney has violated his or her legal duties. For such a defence to be recognised, civil disobedience needs to be defined. Such a definition of civil disobedience if included in the ‘Model rules’ should include four elements: (1) the act constituting civil disobedience must be public; (2) the disobedience must be non-violent; (3) the attorney must offer an explanation of his or her defiance based on moral or religious conviction; and (4) civil disobedience should exclude activities motivated primarily by material self-interest (Palumbos, ‘Within each lawyer's conscience a touchstone’, pp 1092–1094). Perhaps a similar definition of clerical disobedience should be included in the Canons to allow for a similar defence to Canonical disobedience.

60 Ibid. An interesting approach to this debate is presented in Hefling, ‘Who is communion for?’. Professor Hefling easily disposes of the ‘table fellowship’ rationale for open communion. He does, however, give more credence to the argument of viewing communion as a ‘converting ordinance’. Following John Wesley, he argues that ‘the one indispensable pre-requisite for receiving communion is a desire to accept whatever blessing God is pleased to give through it’ (p 26). The Eucharist in this context may lead towards baptism. Those who accept an open table invitation may well be co-operating with the prevenient operation of grace. Taken as such, the invitation to communion is not simply an invitation to eat with friends (the hospitality argument) but an invitation to encounter the risen Christ, which is to say Christ crucified. For Hefling, communion is never irrespective of baptism, although in certain situations it may precede it. He argues for an integration of communion into a formation programme that involves the entire faith community. For him, Eucharistic worship needs to belong to a larger pattern and process – an all-inclusive corporate turning to God.


61 (2012) 14 Ecc LJ 324326Google Scholar.

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