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Bp. Howard Accused of ‘Pattern & Practice’ of Discrimination

Update: LGBTQ+ Caucus Urges Withholding Consent

Analysis by Kirk Petersen

A stunning report of an investigation into alleged election irregularities in the Diocese of Florida has fundamentally changed the nature of the controversy there.

The dispute has been characterized as an attempt by a liberal faction to scuttle the election of a conservative bishop by a conservative diocese — even though the prospective bishop has vowed to permit same-sex marriages in the diocese as required by church policy.

That characterization has some basis in fact, but the election has turned into a sideshow, along with same-sex marriage. The key issue now is that the soon-to-retire Bishop of Florida has for years allegedly violated the canons of the Episcopal Church by discriminating against LGBT clergy — and those allegations have been declared credible by a church court after an extensive investigation.

An LGBT support group in the Diocese of Florida has called for the resignation of Bishop Samuel Johnson Howard (as well as the members of the diocesan standing committee), and has requested a disciplinary investigation of the bishop under Title IV of the canons.

Howard has flatly denied the allegations, and the diocese is preparing a detailed rebuttal to the court report. However, the threshold for launching a Title IV proceeding is extremely low. According to an official website of the church that explains the Title IV process, when an allegation is made against any member of the clergy, the first step is “to decide whether or not the facts presented, if any were true, would constitute an “Offense” under the Canons. (Title IV.6.5). This determination expressly excludes any determination as to the actual truth of the allegations.”

The 14-member Court of Review — which includes four bishops and five attorneys — issued a 33-page report with 156 pages of exhibits, detailing accusations of discrimination by nearly a dozen clergy and prospective clergy. Out of all that text, one sentence makes clear that a Title IV proceeding is inevitable.

“Our interviews suggest a pattern and practice of LGBTQ clergy and those who opposed the Bishop’s stated views not being treated equally with similarly situated clergy in the securing and exercising of their rights to ordination, licensing and the granting of canonical residency,” the Court of Review declared.

The “pattern and practice,” if true — and it doesn’t have to be proven to trigger Title IV, it just has to be credible — would clearly violate Canon III.1.2, which reads: “No person shall be denied access to the discernment process or to any process for the employment, licensing, calling, or deployment for any ministry, lay or ordained, in this Church because of race, color, ethnic origin, immigration status, national origin, sex, marital or family status (including pregnancy and child care plans), sexual orientation, gender identity and expression, disabilities or age, except as otherwise provided by these Canons. No right to employment, licensing, ordination, call, deployment, or election is hereby established.”

In other words, it’s a Title IV case now.

Members of Love Out Loud, a group of LGBT persons and allies at Holy Trinity Episcopal Church in Gainesville, Florida, on February 20 issued a memo about the Court of Review report, stating: “The specific finding of overt discrimination against LGBTQ+ clergy and clergy wanting to minister to the LGTBQ+ community by Bishop Samuel Howard is staggering. Those of us who have been hearing these whispers for decades have been trying to sound the alarm. Now, sadly, we have our worst fears confirmed.”

The members also want the November 2022 election of the Rev. Charlie Holt as bishop coadjutor to be “vacated,” and they have sent their memo to the diocesan standing committees and bishops throughout the church. In order for Holt to become a bishop, he must receive consent from a majority of standing committees and bishops diocesan. The memo itself does not request a Title IV investigation, but Kristin Bryant, president of Love Out Loud, said it has been sent also to the Church Center with a request for such an investigation. The complete memo appears at the bottom of this post.

Amanda Skofstad, public affairs officer for Presiding Bishop Michael B. Curry, declined to comment for this article, or to confirm that a Title IV complaint had been received.

Asked for a response to the Love Out Loud memo, the Rev. Joe Gibbes told TLC by email: “As president of the Standing Committee, I regret that people in any parish in our diocese are hurting. The truth is, people are hurting on all sides. The conclusions of this dear group represent premature judgment based on what we believe are faulty allegations, to which we are currently preparing a response. We believe it is in the best interest of all the people of the diocese if those of us elected to our posts continue to carry out the difficult work with which we have been tasked and, by God’s grace, find a way toward healing and hope for our beloved church.”

A spokesman said Howard would have nothing to add to Gibbes’s statement at this time.

Bryant’s rector, the Rev. J. Fletcher Montgomery, replied by email to a query about the Love Out Loud group’s memo: “I have enjoyed working with them in my five years as rector here. I cannot agree with the group’s recent letter calling for the resignation of our bishop and standing committee, nor was I asked to approve it before it was published. I am supportive of all of our parishioners’ efforts to bring about reconciliation in Christ, full access to the Sacraments for all baptized Christians, and the promotion and safeguarding of the respect and dignity of every human being.”

Holt now has twice been declared the victor in bishop elections, in May and November 2022. Separate ecclesiastical courts have twice found fault with the election process. The first court said the May election should have been adjourned without a vote because of the lack of a quorum — a fairly innocuous finding. The second court’s finding is far more explosive — it implies that Howard has improperly manipulated the voting pool.

“Pattern and practice” (also known as “pattern or practice”) is a term of art in civil rights law, and the lawyers on the Court of Review did not pull that phrase out of a hat.

The term originated with the civil rights division of the U.S. Department of Justice, as a mechanism for combating police brutality and improper tactics. It is notoriously difficult to convict a police officer of a crime, so a mechanism was created for addressing systemic problems within a police department, such as racism or a culture of aggression, without having to prove a specific crime beyond a reasonable doubt.

According to the Department of Justice website, if a pattern-or-practice investigation “reveals patterns or practices of unlawful policing, the division will seek to work with the department … to effectively and sustainably remedy any unlawful practices. This usually takes the form of a negotiated agreement that incorporates specific remedies and that becomes a federal court order overseen by an independent monitor.” If no agreement can be reached, the department can file suit to force changes.

The analogy between church law and secular law is not precise, but discrimination on the basis of sexual orientation is, generically speaking, one way to violate a person’s civil rights. By using the term pattern and practice, the Court of Review essentially is saying that even if plausible defenses might be mounted against any specific allegation of discrimination, there appears to be enough of a systemic problem that a higher authority needs to intervene.

“The evidence received by the Court describes both perceived and real patterns of functioning by Diocesan leadership currently and over significant periods of time,” the court wrote. Holt prevailed in the clergy order by a single vote in November, and the court described three specific cases of clergy “who we find can establish a sufficient connection to their alleged denial of canonical residence and their right to vote in this election.”

After noting that three additional clergy votes could easily have led to a different outcome, the court added: “The allegations of multiple clergy satisfy this Court that the administration of the Diocese, whether through inaction or otherwise, discouraged the efforts of gay and lesbian aspirants to discern their call to ministry which resulted in some seeking ordination in other dioceses. We also credit the statements of multiple clergy who alleged significant restrictions being placed on their rights to exercise their ministry. We find that there are several clergy who did not present letters dimissory because they felt it would be a futile exercise given the climate as alleged.”

As reported previously, several clergy and lay leaders who were granted anonymity by the Court of Review promptly agreed to be identified by name after the report became public. Additional clergy and lay people have since spoken with TLC on condition they not be identified, and have described alleged acts of retaliation that are consistent with anonymous accounts that the Court of Review found credible.

Throughout the election controversy, supporters of Holt’s candidacy have declared that a small minority of the diocese is attempting to thwart the will of the majority. The court’s report, and the flood of reactions it unleashed from emboldened members of the diocese, make it clear that the diocese is more closely divided, especially among the clergy.

In addition to the allegations of discrimination, the final exhibit in the court’s report is an October 2022 letter urging that the second election be postponed. The letter was signed by 80 people from the diocese, including 20 clergy. It read in part: “Trust has eroded in the diocese. Previously and long-scheduled opportunities for dialogue and communion among diocesan clergy and laity have been shut down by the Diocesan leadership.”

Gibbes, president of the standing committee, told TLC by telephone that he believes a majority of the clergy oppose the bishop’s views. The Rev. Allison DeFoor, who is canon to the ordinary (essentially the chief of staff) of the diocese, said in an email: “In fact, my own theology has no objection to same-sex marriage, and that is also true of a number of other lay and clergy, at the highest levels of leadership in the diocese.” Both men are staunch supporters of the bishop.

The Love Out Loud memo accuses Howard of attempting “to push through the election of a Bishop Coadjutor who may likely continue a legacy of exclusion, targeting the LGBTQ+ clergy and community.” Holt has vowed to abide by church policies, despite his personal opposition to same-sex marriage.

Love Out Loud also accused the bishop and standing committee of trying “to stack the deck against the candidates for Bishop Coadjutor who held more liberal or even moderate views.” Of the five candidates in the initial election, only Holt explicitly stated that he opposed same-sex marriage — meaning clergy and delegates who opposed Holt for that reason would split their votes among the four other candidates. (Two candidates dropped out between May and November, leaving a slate of three for the second election.)

Holt received 56 votes in the clergy order in the second election, a bare-minimum majority out of 111 votes cast. However, a priest who asked not to be identified told TLC that “a lot of people wanted to abstain,” and there was much discussion before the vote about how best to do so. A careful reading of the rules showed that an actual abstention would be meaningless, as it would not count toward establishing the threshold necessary for election. An “illegal vote” for more than one candidate, however, would not be counted as a vote for anyone — but would be counted as a vote cast, thus making it more difficult for any candidate to win a majority. Exhibit 7 of the court’s report shows that 14 of the 111 clergy voting marked their ballots for all three candidates. Most or all of them must have known they were invalidating their ballots — thereby setting a higher bar for election without actually voting against a potential Bishop Holt. Only five delegates in the larger lay order cast similar illegal votes.

Title IV proceedings against bishops are complicated and rare, with time-consuming opportunities for appeals and exchange of legal briefs at every step along the way. The time before any penalty might be imposed would be measured in years, not weeks. Howard will reach the mandatory retirement age of 72 on September 8, 2023.

Holt, meanwhile, will have 120 days to receive consent from a majority of standing committees and bishops diocesan, starting when the diocese officially asks for consent, which could happen this week. More than 90 percent of bishops diocesan disagree with Howard and Holt on the issue of same-sex marriage, and those bishops presumably also support other rights for LGBT persons.

Some bishops, even extremely liberal bishops, have declared that conservative bishops play an important role in the church, which could incline them to let a conservative diocese pick a conservative bishop. But the diocese now appears to be a bit less conservative than it seemed before the court’s report — and any bishop inclined to withhold consent from Holt can now do so because, in the court’s words, the investigation has “cast doubt on the integrity of the election process.” There is no need to pass judgment on Holt’s theology.

Even people who oppose Holt’s candidacy tend to concede that he is an affable, godly man with strong credentials for the job. He now stands to become collateral damage for reasons beyond his control. In a controversial move, Howard hired Holt last year while the election was already in dispute, and the prospective bishop moved his family from Texas. Holt is listed on the diocesan staff web directory as “Priest.”

Disclosure: I know or am acquainted with two of the attorneys on the Court of Review, and a third attorney who advised the court is a friend. I have not discussed this article with any of them. 

The Diocese of Florida has been a long-time financial supporter of the Living Church Foundation, Inc.

Love Out Loud_ Memo by Kirk Petersen

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