Wednesday, June 13, 2018

"O, What a Tangled Web We Weave . . ."

" . . . when first we practice to deceive." That's a famous quote, frequently misattributed to Shakespeare, that comes from the epic poem Marmion, by Sir Walter Scott. And it perfectly describes the current situation with the Episcopal Church case in South Carolina.

For you see, the Episcopalians conspired with Associate Justice Kaye Hearn of the South Carolina Supreme Court to hide her bias and prejudging of the issues until she was allowed to hear and contribute her opinion to the case without objection from the attorneys for Bishop Mark Lawrence and the parishes in his Diocese of South Carolina. She was too biased to conceal her partisanship in the oral argument of the case, and then she displayed it overtly when she ruled against Bishop Lawrence and his parishes -- even going so far as to single him out for "betraying his vows of ordination" and for "breaches of fiduciary duty."

(Note to Justice Hearn: the secular courts cannot, consistently with the First Amendment, entertain questions as to whether a cleric in a religious denomination has broken faith with it, or acted in breach of the unique duties owed by a bishop to the church in which he sits. So your opinion that expresses your views on those issues was ultra vires -- beyond your powers to decide.)

And then, having delivered her coup de grace to Bishop Lawrence, Justice Hearn finally saw fit to recuse herself from the case -- after she had signed her opinion!

That opinion was one of five in the case, no two of which followed the same reasoning.  (To be sure, Justices Pleicones and Hearn "concurred" in each other's opinion, but Justice Hearn based her result on grounds other than those of Justice Pleicones, such as the law of constructive trusts.) Given such a splintered result, what is the trial court judge to do on remand?

Here are the conclusions to each of the three opinions agreeing that Judge Goodstein's judgment below should be reversed:

Pleicones, J.: "Further, the civil courts in South Carolina cannot decide disputes which are governed by church polity and governance concerning property ownership.  For the reasons given above, I have determined that the real and personal property disputes sought to be adjudicated in this civil lawsuit are 'question[s] of religious law or doctrine masquerading as a dispute over church property [and] corporate control . . . .' See All Saints at 445, 685 S.E.2d at 172. I find, therefore, the Court 'must defer to the decision of the proper church judicatories . . . .'  Id.
. . . For the reasons given above, I would reverse the circuit court's order and also join Justice Hearn's opinion."

Hearn, J.: "Based on our doctrine of deference to ecclesiastical authority, the Appellants represent the true Lower Diocese of the Protestant Episcopal Church in South Carolina and are therefore entitled to all property, including Camp Saint Christopher and the emblems, seals, and trademarks associated with the National Church. This holding is based on the National Church's recognition of Charles vonRosenberg as its Bishop and the express trust imposed on Respondents' property by the Dennis Canon, as well as on state corporate law principles." [Footnote omitted.]

Beatty, C.J.: "Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was no writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust. [Footnote omitted.] In conclusion, I readily acknowledge the controversy surrounding this case and the ramifications of the Court's decision. Even so, my decision cannot be driven by personal beliefs or a desired result. Strictly applying neutral principles of law, which I believe this property dispute mandates, I would affirm in part and reverse in part the order of the circuit court."

Thus two of the Justices viewed this case as one in which the civil courts should "defer" to the "ecclesiastical authorities" -- even though South Carolina is a "neutral principles" State, in which "deference" has no role! -- while the third reaches his result based "strictly applying neutral principles of law." Two of them simply "reverse" the decision below (and one only in part), while only Justice Hearn declares the whole kit and caboodle to belong to her own denomination.

The first two Justices would thus have overruled the leading South Carolina neutral principles case, All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina, but two votes do not suffice for that. They would have required a third vote to overrule that decision, and they never obtained that third vote. So the neutral principles doctrine of All Saints Waccamaw stands unchanged.

Nor did Justice Hearn get any other Justice to buy into her "constructive trust" rationale (unless Justice Pleicones may be said to have done so by "joining" in her opinion). But that was not a ground urged on appeal by ECUSA or its rump diocese -- so Justice Hearn gratuitously inserted her views on an issue that was not properly before the Court.

Finally, only two of the Justices (Hearn and Beatty) mentioned Camp Christopher -- the retreat property that belongs not to any one parish, but to the Diocese itself. The Dennis Canon does not apply to the property of a diocese, and so it cannot be used to transfer ownership. For Justice Hearn, "deference" requires that result, while for Chief Justice Beatty, the result follows from the fact that he cannot see how Bishop Lawrence's Diocese is the "successor" to the diocese that owned the property before the lawsuit began. (But the Diocese did not go anywhere -- it is still the same South Carolina religious corporation it always was. So how can there be any question of whether a Diocese can "succeed" itself? The Chief Justice went out on a limb, and no one joined him.)

An even bigger problem for Judge Goodstein on remand, however, is how she should regard the opinion of Justice Hearn, who belatedly recused herself due to a (presumed) perception of a conflict of interest. (You think?) Which is to say, she never should have participated in the case to begin with. In light of that fact, why should attention be paid any longer to her views of the case? To give effect to them would be to allow a conflict of interest to decide the case's outcome, when courts are required to avoid all conflicts in order to ensure their impartiality.

If Justice Hearn's opinion and vote are disregarded, we then have a situation in which the vote of the South Carolina Supreme Court was only 2-2 for reversal, which means that Judge Goodstein's previous order would not be reversed, but would stand as the final decision in the case. In other words, Justice Hearn's deceptive tactic of waiting for the petition for rehearing to recuse herself (thereby ensuring a 2-2 vote against granting the rehearing) would be turned against her, and used instead to affirm the judgment below.

Can you imagine how the ECUSA attorneys will jump and yell and stamp their feet if Judge Goodstein takes that position on remand? But what can they do otherwise, if she does? The most they could do is take another appeal up to the South Carolina Court of Appeals, and then ask the Supreme Court to take the case. But if the case gets that far, Justice Hearn will no longer be able to participate in it. The outcome would thus not be assured at all.

This mess is to be laid entirely at the feet of Justice Hearn and the denomination of which she is a devout and practicing member, namely, the Episcopal Church. They conspired together, as I charge, to obtain the result they wanted by concealing the open bias that Justice Hearn later felt bold enough to display. And then, by recusing herself only at the last minute, Justice Hearn has managed to enshroud all her previous actions in the case with doubt and uncertainty as to their validity.

Only another (and very different) South Carolina Supreme Court can sort out this mess. In this Curmudgeon's view, Bishop Lawrence and his attorneys should take the firm position that with Justice Hearn's recognition that she never should have participated in the case, her opinion must be disregarded just as if she had openly withdrawn it. To give it any shrift at all would be to sanction open bias and partiality in our court system, and thereby undermine the rule of law.

 [UPDATE 06/14/18: I am informed that the "Supreme Court" (which three Justices, after Justice Hearn's recusal, I don't yet know) "remitted" (not "remanded") the case to a different circuit court and judge -- to Judge Edgar Dickson of Orangeburg County. That means that Judge Goodstein will also play no further role in these proceedings, while Judge Dickson is a blank slate.

Nothing in that news changes the logic of my argument, however. The point is that Justice Hearn's participation in the case was invalid, and that she herself has acknowledged it was invalid. An invalid vote is a nullity, and cannot be counted.]

Monday, June 11, 2018

Justice Denied: SCOTUS Refuses South Carolina Petition

Today's order list from the United States Supreme Court brings the sad news that the Court voted to deny certiorari (review) in the case of Bishop Mark Lawrence and the parishes of the Diocese of South Carolina.  This means that no four justices considered the case important enough to have the Court's full attention, and says volumes about the secular makeup of our current Court.  (Or it could be telling us that the justices of the Supreme Court are better followers of St. Paul's advice on litigation than are most Episcopalians, Methodists and Presbyterians! Six of them are Roman Catholic, after all.)

It also means that the impossibly fractured, highly partisan and irresponsible decision of the court below will stand in infamy as possibly the worst application of so-called "neutral principles" on record. But that the Supreme Court chose to do nothing about the legacy that Harry Blackmun gave us says that it has disowned its responsibility for that doctrine, and in the future will mean that churches can expect no fair treatment of their property issues in the secular courts.

As, always, therefore, St Paul is vindicated yet again. And ECUSA gets just what it always wanted: a servient South Carolina of its own, with no regard whatsoever for the centuries of history that built the heritage it betrays today. By watching what the Episcopal Church and its minions do with the treasure that has been handed over to them, the rest of the Christian world will learn the nature of the god which Episcopalians today truly worship.

Wednesday, May 30, 2018

How Did Everybody Forget Where the Temple Was?

This is Part III of a series: Where Did Israel's Temples Stand? You may read Part I here, and Part II is here.

In the previous post in this series, we looked at the fairly convincing evidence that Jerusalem's present-day "Temple Mount," or Haram-esh-Sharif as the Muslims call it, is the foundation of what was once the Roman fortress at Jerusalem, built by Herod and named "Antonia" for his patron Mark Antony. It was not the site at all for any of the earlier temples which were at the center of Jewish religious life. Rather, as eyewitness testimony will show, the site for Herod's temple (and Zerubbabel's, and Solomon's) was at the top of the mount called Ophel, about 1000 feet to the south of the Antonia fortress.

In this post, I want to review the eyewitness testimony as to the temple's location, in contrast to that of Antonia's. We will start with the earliest testimony recorded just after Titus and his Roman soldiers had razed Herod's temple to the ground -- including all its foundations.  Our starting point is, once again, the first-century historian Josephus, who was in Jerusalem (and a member of Titus' staff) when the Romans destroyed the temple.

Josephus quotes Eleazar, the commander of the Jewish forces at Masada until that fortress in turn was overrun by the Romans three years after Jerusalem fell.  As the Romans were about to storm the last ramparts that defended the Jews there, Eleazar gave a speech urging his men to put themselves to the sword rather than accept death or captivity at the hands of the Romans. In the course of that speech, Josephus has him say of Jerusalem (Jewish War, 7:375-76 [Hammond tr., OUP 2017; my emphasis):
"Where now is that great city, the mother-city of the whole Jewish race, secure behind all those rings of walls, protected by all those guard-posts and massive towers, with hardly enough room for its arsenal of munitions, and with all those tens of thousands of fighting men to defend it? Where has it gone, that city of ours which was believed to have God as its founder? It has been torn up by the roots and swept away.  The only memorial of it left is the camp of those that destroyed it, still quartered in the ruins . . .".
While Eleazar's words might be artistic license rather than recorded verbatim, the fact that their author is Josephus, who was himself personally familiar with what the Romans left standing at Jerusalem, is guaranty enough that what Eleazar states is an accurate description  -- otherwise those with equal knowledge of the facts -- including Josephus' own sponsor, Titus himself -- could easily have contradicted him.

The next eyewitness testimony is from the time of the Emperor Hadrian, in 132 A.D., who with Roman troops put down the second Jewish rebellion which began that year, led by Simon bar-Kokhba.  That rebellion, unlike the first, was not fought in the streets of Jerusalem, because Titus and his troops had left the city uninhabitable. Citing contemporary accounts, Epiphanius of Salamis, who was the bishop of Cyprus, wrote in the fourth century:
It was in the second year of his reign when [Hadrian] went up to Jerusalem, the famous and much-praised city which had been destroyed by Titus the son of Vespasian. He found it utterly destroyed and God's Holy Temple a ruin, there being nothing where the city stood but a few dwellings and one small church. . . .  [Then] Hadrian decided to restore the city, but not the Temple.
Hadrian built the city he called Aelia Capitolina on the westernmost hill of the former Jerusalem, in the area of what Josephus called "the upper city." The builders used stones from the former Temple and from other ruins left by Titus. (This "recycling" of stones from the lower city has presented many puzzles for archaeologists at Jerusalem's various sites.)

The former City of David, on the lower eastern hill (where the temple had stood), was left to go fallow, and according to the testimony of St. Jerome (in his Commentaries, with reference to Isaiah 64:11) "the Temple which earned reverence throughout the world has become the refuse dump of the new city Aelia . . .".

The Christian historian Eusebius was the librarian at Caesarea, and frequently visited the library at Aelia in the early fourth century. On numerous occasions in his writings he laments the complete and utter destruction of the Temple, and notes that its site was now "a Roman farm like the rest of the country . . . I have seen the bulls plowing there and the sacred site sown with seed" (Ecclesiastical History VIII.3:406).

In contrast to the site of the Temple, other fourth-century writers referred to the site of Fortress Antonia as the site of the rebuilt Praetorium, where Jesus had been tried before Pilate. The Romans ceased using it as a fort around A.D. 289, and Eusebius reported it had deteriorated from disuse by the time he came to Jerusalem (Aelia). But St. Jerome again describes it rebuilt circa 380 A.D. as an "imperial residence", in which he invited his noble-born friend Paula (who had become a nun) to stay. (She declined on the ground that it was too ornate for a nun, even one who was noble-born.)

By the time of the "Piacenza Pilgrim", writing ca. A.D. 570, there was a Christian shrine, called the Basilica of St. Sophia or the "Church of the Holy Wisdom" built on the Praetorium platform to surround the "judgment rock" on which it was thought that Jesus had stood when Pilate sentenced him to death. From the description the Pilgrim gives of the rock, there can be no doubt that this is the same irregular stone over which the Dome of the Rock now stands, in the middle of the Haram-esh-Sharif, and the Pilgrim's narrative thus supplies the conclusive connection between the former Roman Praetorium (Antonia Fortress) and the Haram-esh-Sharif which so many now mistake as "the Temple Mount". The indentations which present-day Muslims identify as the "footprints of Mohammed" which the Prophet left as he began his final journey are the same which the "Piacenza Pilgrim" identified in 570 A.D. as the "footprints of Jesus" when he stood before Pilate.

Making this connection enables one to understand just how the memory of the original temple site was lost over time, and became conflated with the site of the Antonia, now the Haram-esh-Sharif. The Church of the Holy Wisdom stood over its revered rock during Byzantine times until the Persians (and Jewish soldiers) destroyed it in A.D. 614. As I noted in the post before this one, Caliph Omar, after conquering Jerusalem in A.D. 638, left the (now) bare rock alone when he built the al-Aqsa Mosque at the far southern end of the fortress platform to honor the Prophet's last journey. But by the time of the Caliph Abd-al-Malik in A.D. 691, Muslims had come to identify the visible markings on the rock with the Prophet's nighttime journey, and so he had the Dome of the Rock built over it, where it stands today.

So things went until the time of the Crusades. When the Christians conquered Jerusalem in A.D. 1099, they slaughtered most of Jerusalem's Muslim and Jewish inhabitants, and converted al-Aqsa and the Dome of the Rock into Christian places of worship. Later Crusaders mistakenly identified al-Aqsa as having been built on the site of Solomon's Temple, and called it "Templum Solomonis". King Baldwin II of Jerusalem, along with Jerusalem's then patriarch, gave approval to the formation of a military holy order to protect Christian pilgrims to the Holy City. He let them establish their headquarters in the refurbished al-Aqsa mosque, and due to its Christian name they became known as the "Knights Templar".

And ever since, Christians, Moslems and Jews have identified the Haram-esh-Sharif as the former site of the Jewish temples, beginning with that of Solomon.

The original connection between the Temple of Solomon and the Gihon Spring has been forgotten. (Even the Roman historian Tacitus referred to Herod's Temple as having an "inexhaustible spring" within its perimeter, while there were only cisterns -- and no spring -- to supply water for the Antonia Fortress.) To complete the circle back to the original temple site, I will review the evidence identifying Gihon's waters with the Temple in a subsequent post.