Wednesday, July 1, 2015

Sweet Poetic Justice for the Bishop of LA

Bishop J. Jon Bruno of Los Angeles, he of the forkèd tongue, has finally met with a degree of poetic justice worthy of his nefarious aims. I have previously reported in these pages the long and tortuous saga of the parish of St. James, Newport Beach, which had no stomach for the revisionist tendencies of either Bishop Bruno or his Episcopal Church (USA), and which voted in 2004 to leave the Diocese of Los Angeles.

The usual lawsuit by the Diocese ensued, joined later in a separate suit by the "new sheriff in town," the Most Rev. Katharine Jeffers Schori. Both maintained that the infamous Dennis Canon operated, under California law, to prevent the congregation from departing ECUSA with its property as its own.

The case found its way to the California Supreme Court, which triumphantly applied the Dennis Canon to conclude on demurrer -- i.e., before St. James had even answered the complaint -- that the trust imposed by the Dennis Canon overrode every other claim to the property. Since the parish was no longer a part of the Episcopal Church, it no longer had any ownership interest in the property (despite the deeds being all in its name), which the Supreme Court concluded now belonged to the Diocese.

The case had to undergo a further appeal to the California Supreme Court before it clarified its ruling to say that if the facts alleged in the complaints by the Diocese and ECUSA were proved true, then the parish would no longer own its property. Along the way, the U.S. Supreme Court declined to take cognizance of the case, no doubt because it had not yet even gone to trial.

The parish of St. James rested a huge part of its defense on the strength of a letter its donors had requested and received from the Diocese of Los Angeles, which stated (under the signature of the Bishop's right-hand aide, his Canon to the Ordinary) that the Diocese "waived" any Dennis Canon interest in the property being purchased by wealthy donors to St. James, so that it could expand its premises without worrying about any future reversionary interest.

Finally, in 2013, Orange County Superior Court Judge Kim Dunning ruled on the Diocese's and ECUSA's motions for summary judgment that the parish could not retain the property under the Dennis Canon even though the Diocese had waived the Canon's application (to at least one of the parish's parcels). She did so on the ground that because the Dennis Canon was a creation of the national Church, only the national Church could "waive" the interest it created in parish property.

Consequently, she held, the letter written by the Diocese was "ineffective" to cancel out the national Church's Dennis Canon interest. And given that conclusion, the Dennis Canon triumphed again, so that the Diocese was entitled to the real property.

After some preliminary maneuvers, the parish of St. James, in a very painful decision reached in September 2013, resolved to vacate the property, and not to take any further appeals. This left the church free for the congregation that wished to remain in the Episcopal Church (USA).

By all accounts, that congregation took over the management of the property and began, under a dedicated vicar, to grow its numbers. However, after they had been using the property for about a year, Bishop Bruno (he of the forkèd tongue, remember) announced he had sold the property to an oceanfront developer, for a rumored price of $15 million (more than twice its appraised value), who planned to raze the beautiful church buildings and put up a mixed use apartment and commercial complex on the oceanfront property.

The remnant congregation was shocked and angered by this sudden decision. Their vicar bravely filed a lawsuit in Orange County Superior Court in an attempt to block the proposed sale. It emerged from the legal documents that although the Diocese of Los Angeles had taken over title to the property after the Anglican congregation vacated the buildings, Bishop Bruno had surreptitiously arranged for the transfer of its title into his corporation sole. By definition, such a corporation has only one officer -- the sitting bishop -- and thus he can make decisions about property it holds without having to obtain approval from any other people or bodies in the Diocese.

Despite the lawsuit and protests by the congregation and others in the diocese, Bishop Bruno and his diocese went ahead with plans for the sale. The vicar said good-bye to her parish after holding her last service there just a week ago. And it looked as though the sale would proceed, even though the buyer would (in my view) have been foolish to ignore the Superior Court's ruling that only the national Church could release its Dennis Canon trust interest in the property

And now -- enter God's poetic justice. It seems that Bishop Bruno, who is as quick as any Episcopal Church diocesan to recognize a Dennis Canon interest in property when he comes across one, forgot about an earlier reversionary interest in the St. James parish property. It turns out that the original developer of the area, Griffith Company, donated in 1945 the land on which the beautiful St. James building was erected, to the Protestant Episcopal Bishop of the Diocese of Los Angeles, upon "the condition, covenant and restriction" that
The property conveyed shall be used for church purposes exclusively and no building other than a church and appurtenances shall be erected, placed or maintained thereon. The foregoing restriction shall be binding upon the [Bishop], his successors and assigns. Upon the breach of the foregoing condition, the title to said property ... shall become at once divested from the [Bishop], his successors and assigns, and shall revert and revest in the grantor [Griffith Company], its successors or assigns.   
Thus if Bishop Bruno carries out his plans to sell the property to the current developer, the only thing that developer could do with the property is maintain the existing church building on it (or build a brand-new one). And thus there is no way a developer would pay $15 million for land that is so encumbered.

Has Bishop Bruno taken the news like a man, and canceled the sale?

Bishop Bruno? Are you kidding? He has filed a "slander of title" lawsuit against the Griffith Company, in which he maintains that the donor released its reversionary interest in the property in 1984, when it agreed to allow three of the four original St. James parcels to be used for the construction of a church parking lot (an "ancillary" use). He claims that this act freed the property of its restriction, so that to revive the claim in 2015 amounts to denigrating the Diocese's free and clear title to the property ("slander of title").

Well, two can play at that game. One of the interesting features about a claim for slander of title under California law is that the party who prevails in the lawsuit may ask to be awarded its attorneys' fees.

So the Diocese of Los Angeles, already out of pocket some $4 to $5 million in its battle to recover the St. James property, and hoping to turn it into a neat $10 million net profit, may face still more legal costs and attorneys' fees, only to find out that the property has to remain a church after all. (Or, more likely, Bishop Bruno's lawsuit is just an opening gambit in a game that will end in a settlement to divide the loot from the property with the Griffith Company and leave the congregation out in the cold.)

Stay tuned as we follow the future developments of this most circuitous church property case in the entire history of ECUSA.

Tuesday, June 30, 2015

Bishops Bless Blasphemy; Curmudgeon's Cup Runneth Over

One hundred and twenty-nine of the bishops in the Episcopal Church (USA) House of Bishops voted yesterday to embrace blasphemy as a "trial rite" for same-sex marriages in the Church. The blasphemy begins in the rite at the point where the celebrant says to the congregation (see p. 98 of these materials; my bold emphasis added):
Dearly beloved: We have come together in the presence of God to witness and bless the joining together of N. and N. in Holy Matrimony. The joining of two people in a life of mutual fidelity signifies to us the mystery of the union between Christ and his Church, and so it is worthy of being honored among all people.
As I wrote in an earlier post, critiquing the rite when it was first proposed, the bold language evinces a category mistake of the worst sort, by equating the union of two people of the same gender to the holy union between Christ and His Church. (How can they be equated? In the former, which of the two men -- or two women -- signifies Christ, and which the Church?)

The bishops approved three other rites for trial use, as well, but they are just as blasphemous in invoking the blessing of the triune God on the union/marriage of a same-sex pair. It was God Himself who defined marriage as between a male and a female in Genesis 2:24, and thus to invoke the name of that same God in blessing (or celebrating) a pairing that is not one that he made provision for in Holy Scripture is a blasphemy on His name.

The Archbishop of Canterbury registered the following strenuous objection to the action of the House of Bishops:
While recognising the prerogative of The Episcopal Church to address issues appropriate to its own context, Archbishop Justin Welby said that its decision will cause distress for some and have ramifications for the Anglican Communion as a whole, as well as for its ecumenical and interfaith relationships.
The Resolution that adopts the rites (which now goes to the House of Deputies for what is likely to be an even more enthusiastic endorsement) contains an "opt-out" clause to excuse any clergy in the Church from performing any of the adopted rites, so the good news is that those who will stumble over blaspheming Christ, the Church and the triune God will not be forced to do so.

But the bad news is that, for the reasons explained in this earlier post, the Episcopal Church (USA) will have to make the performance of same-sex marriage rites mandatory upon the request of a same-gender couple, in order to be able to retain its tax-exempt status under the Internal Revenue Code. So the opt-out clause will have to be removed from the Canons at the next General Convention.

Your Curmudgeon will from this day forth no longer call himself an Episcopalian, or be a member of an organization (it is not a church) that endorses liturgies of blasphemy. I have changed the header describing this blog to read:
Curmudgeonly comments documenting an unsuccessful attempt to remain in the  Episcopal Church (USA) and the Anglican Communion at the same time---with some leavening for good measure.

Saturday, June 27, 2015

Trouble Ahead for U.S. Churches?

The Supreme Court is an anomaly. It is neither "Supreme" (since it can overrule itself at any time, and also be overruled by statute or constitutional amendment) nor -- after yesterday's decision -- a court. Here is how Justice Scalia described it in his dissent to the same-sex marriage decision (Obergefell v. Hodges) -- it consists of
... nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
Yesterday, two Catholic and three Jewish Justices -- two Californians and three New Yorkers, four of them graduates of Harvard and one a graduate of Yale -- purported to discover a constitutional "right" to marriage. This maneuver preempted the various State legislatures who had been dealing with the question, and now makes it impossible for any legislature (Congress included) to change, modify or eliminate the "right", as it is a federal constitutional one. Unless and until the Supreme Court reverses its own decision, or until three-quarters of the States pass an amendment, it will stay as is.

The problem is that with this decision, the not-Supreme-and-not-a-court has set the stage for a monumental conflict between two constitutional rights: the right to exercise one's religion under the First Amendment, and the right to marry (which soon will have to be extended to polygamy and polyandry, since there are no limiting principles to the new "right" just discovered). And the worst part is that the only umpires for this impending conflict will be: you guessed it -- unelected lawyers in black robes.

What may come as news to some is that the United States has been there before -- and the results were not pretty.

Start with a church's tax-exempt status: it can be removed for teaching and holding principles that are contrary to federal law, as happened in the 1983 case of Bob Jones University v. United States, in which the Supreme Court upheld the IRS' refusal to continue the religious university's tax exemption because it forbade -- on sincerely held religious grounds -- interracial dating between its students. (Previously it had refused to admit blacks at all, but changed its policy in 1975 and adopted the ban on dating and marriage between races.)

The same reasoning used in Bob Jones can be used to deny a tax exemption to any church or religious institution that refuses to perform same-sex marriages. "[E]ntitlement to tax exemption depends on meeting certain common-law standards of charity - namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy." (Bob Jones, 461 U.S. 574, at 586; emphasis added.) The italicized language is broad enough to be adapted to the "public policy" as now established in federal constitutional law by the five Harvard-Yale lawyers in their black robes -- as the United States Solicitor General admitted in oral argument.

This is also why ordained clergy in ECUSA will be deluding themselves if they think that the "opt-out" clause that keeps them from being mandated to perform same-sex marriages is going to last beyond the next General Convention. By then, the Church will have to make it mandatory for all clergy to perform same-sex marriages if it wishes to retain its tax-exempt status.

And that is still not the end of it. As my British barrister colleague Neil Addison, writing in his Religious Law Blog (linked at the right, under "Juricannon"), reminds us, the unfettered power of the U.S. government can even extend to seizing and forfeiting the property of churches that advocate religious principles that violate federal law:
In the 19th Century when the Mormon Church practiced polygamy the US Congress passed a series of increasingly draconian anti-Mormon acts culminating in the 1887 Edmunds-Tucker Act which dissolved the Mormon Church and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this act was endorsed by the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). on the basis that the beliefs and practices of the Mormon Church were incompatible with US Law.

Could the same thing happen to Religious Organisations which disagree with same-sex marriage ? The legal precedents are there and certainly on the part of same-sex marriage advocates the will is there to attack and if possible destroy religion, in particular Christianity. Religions in the US are therefore facing a dangerous future where their freedom is far from guaranteed.
I agree with my colleague. There are absolutely no signs that the LGBT faction will be moderate in asserting the primacy of their newly-discovered constitutional right -- and the weak "assurance" given in Justice Kennedy's majority opinion provides no solace at all that those in black robes will protect anyone in the exercise of their religion.

In the words said at the opening of every session in the ornate courtroom at 1 First Street:

God save the United States and this honorable court.