Friday, May 30, 2008

A Primer on the Crisis (The Short Version)

I have now devoted seven rather lengthy posts to the history and misuse, both past and current, of the "Abandonment of Communion by a Bishop" Canon (Canon IV.9). In response to some requests for a boiled-down, just-the-meat-of-it version, I am putting up this post. A printable version of it may be found here.

The Current Problem

The current problem can be summed up in the names of just two people: Episcopal Church Presiding Bishop Katharine Jefferts Schori and her Chancellor, David Booth Beers. In recent proceedings under Canon IV.9 brought against the Rt. Rev. John-David Schofield and the Rt. Rev. William J. Cox (who had been, prior to his so-called "deposition," the most elderly Bishop of the Church), they ran roughshod over the plain requirements of the Canon. When they were called on what they had done, they gave audacious responses that denied that anything had been done wrong. Not only that, but Presiding Bishop Jefferts Schori has just as audaciously announced her intention of going forward with a vote, at the next House of Bishops meeting in September, to depose the Rt. Reverend Robert Duncan from his see in the Diocese of Pittsburgh---on the same illegal basis as the one on which she proclaimed the "deposition" of Bishop Cox.

The Violations of the Canon

First, Canon IV.9 provides (see the end of this post for the text) that when charges of abandonment have been certified by the Title IV Review Committee, notice of the charges shall be given "forthwith" to the Bishop so charged. The charges against Bishop Cox were certified to Presiding Bishop Jefferts Schori on May 29, 2007. She did not notify Bishop Cox of them until January 9, 2008---more than seven months later.

Second, before giving notice of the charges, the Presiding Bishop was required to seek the consent of the three most senior active Bishops in the House to inhibit Bishop Cox from performing any episcopal functions pending the vote on his deposition. She did not do so, and she did not obtain any consent to his inhibition, but obtained it in regard to Bishop Schofield.

Third, the Canon provides the "inhibited Bishop" with sixty days to respond to the charges, and says nothing about any further proceedings against a Bishop who was not inhibited. Notwithstanding that language, when Presiding Bishop Jefferts Schori notified Bishop Cox of the charges, she told him he had sixty days to respond before he would be deposed.

Fourth, when the sixty days had run, the Presiding Bishop brought a resolution to consent to Bishop Cox's deposition before the House of Bishops at its meeting in Camp Allen on March 12. Again, the language of the Canon provides that only a Bishop who has been inhibited shall be "liable to deposition," but in clear violation of those words, she took up the resolution with the House anyway.

Fifth, the Canon requires that the House of Bishops give its consent to deposition "by a majority of the whole number of Bishops entitled to vote." Article I, Section 2 of the Constitution spells out which Bishops are "entitled to vote" in the House---counting those both active and retired ("resigned" is the technical term), there were 294 such Bishops entitled to vote as of March 12. Thus a majority of that number would be 148. But only 131 Bishops registered at the meeting when it began on March 9, and that number was down to 116 as of the last day, the morning of March 12. By the time the resolutions to depose came up for discussion, the roll call registered just the bare minimum of active Bishops needed for a quorum: 68. The vote on the resolution was by voice only; no record of the actual votes exists. But it is obvious that the requirement for a minimum of 148 votes to approve the deposition could not possibly have been satisfied.

Notwithstanding all these defects in the procedure, Presiding Bishop Jefferts Schori signed certificates of deposition with respect to both Bishops shortly thereafter. When she was challenged on the procedures that had been violated, she defended her actions by saying that she had been advised throughout by her Chancellor, David Booth Beers, and he himself issued a statement that the depositions had been conducted properly.

Shortly after she began the proceedings against Bishops Cox and Schofield, the Presiding Bishop also notified Bishop Duncan that charges of "abandonment" had been certified against him by the Review Committee. As in the case of Bishop Cox, she was not able to get the consent of the three senior active bishops to his inhibition. Nevertheless, she gave him 60 days in which to respond to the charges. This 60-day period expired after the meeting of the House of Bishops ended on March 12, so she could not bring a resolution to depose him at the meeting. At its conclusion, she announced she would poll the members of the House about holding a special meeting in May to consider his deposition. When the results of that poll were apparently negative, she announced that she would bring a resolution to depose Bishop Duncan before the House at its next regular meeting in September. Both Bishop Duncan (through his attorney) and the Standing Committee of his diocese have protested that such a step would be in violation of Canon IV.9. And there the matter stands.

Questions and Answers

Q What's the big deal about Bishops Cox and Schofield? They didn't protest the charges, and they both wanted to leave The Episcopal Church for other pastures.

A Since they were not objecting, what would have been so hard about following the procedures spelled out in the Canon (or about applying the right one to begin with)? Out of the many answers this question calls for (we live under a rule of law, not men/women; ignoring the law is anarchy, etc.), I think this one applies best: The big deal is that Katharine Jefferts Schori is a BISHOP, and not just any Bishop, but our Presiding Bishop. A law-breaking Bishop is a contradiction in terms---an oxymoron. To have a law-breaking Bishop who presides over the whole Church is a calamity of the first magnitude.

Q Hadn't both Bishops already resigned from the Church?

A Yes, that's part of the tragedy here. When faced with a trial on the charges made against him (for ordaining, on U.S. territory, ministers into another church of the Anglican Communion [God forfend!]), Bishop Cox sent a letter of resignation rather than undergo the ordeal (after all, he was 85 years old, and dealing with a wife who had Alzheimer's Disease). That resignation mooted the charges, but Presiding Bishop Jefferts Schori took his letter (of resignation, mind you!) and promptly referred it to the Review Committee for new charges that he was now "abandoning the communion of this Church," and so needed to be deposed. (That is punishing with a vengeance, and can in no sense be termed Christian---particularly in light of her breaking the law to achieve her end. Don't be shocked by my blunt language: somebody has to call the Presiding Bishop to account for her brazen unlawfulness. Her own advisors are clearly not up to the task, and if it takes a curmudgeon to do it, so be it.)

As for Bishop Schofield, he resigned his seat in the House of Bishops, but not his see as the Bishop of San Joaquin. This meant that a new bishop could not be chosen to lead the Episcopalians in the diocese who wanted to remain with The Episcopal Church (TEC) until that see was vacant. Rather than negotiate with Bishop Schofield for a resignation that would have accomplished this, Presiding Bishop Schori chose the deposition route under Canon IV.9, and then failed to get the required number of votes for his deposition. So technically, even though he does not see himself as still affiliated with TEC, Bishop Schofield remains the Episcopal Bishop of San Joaquin until he has been properly deposed, or until the House of Bishops accepts a properly negotiated resignation.

Q I thought the Presiding Bishop had appointed the Rt. Rev. Jerry Lamb as the Episcopal Bishop of San Joaquin to replace Bishop Schofield.

A That's another can of worms arising out our Presiding Bishop's refusal to follow the Constitution and Canons. She did not follow them in claiming that Bishop Schofield was deposed, so everything she did in San Joaquin after that declaration was without any validity. She had no authority under the Canons to "derecognize" the Standing Committee; she had no authority to call a "Special Convention" on less than 30 days' notice; and there was not even a proper quorum at the Special Convention to approve the designation of Bishop Lamb.

Q How is it that Canon IV.9 was not followed in the deposition of Bishop Schofield? He was inhibited first as the Canon requires, right?

A Yes, he was, but as I explained earlier, there were not sufficient votes on March 12 to depose him, and so the motion to depose failed to carry. If the Church wants to try again to depose him, it will have to begin the process anew. And there is a problem even there: Bishop Schofield was charged with "abandoning the communion of this Church", because he left it for the Province of the Southern Cone, which is another Church in the Anglican Communion, with which The Episcopal Church considers itself to be "in communion." But the second clause of the first section in the Canon (see the text below) defines "abandonment" to mean the joining of a church that is "not in communion" with this Church. So how can he be considered to have "abandoned the communion of this Church" by joining a church that is in communion with us? Well, they charged him with renouncing "the Doctrine, Discipline, or Worship of this Church” under the first clause. So either the Canon’s definition contradicts itself, or the “Doctrine, Discipline and Worship” of the Episcopal Church is not the same as the Doctrine, Discipline and Worship of the rest of the Anglican Communion, and the Episcopal Church has no business calling itself a “constituent member” of that Communion. Take your pick.

Q Haven't reasonable people disagreed over what number of votes the language of the Canon requires in order to consent to the deposition of a Bishop?

A The Canon says that the House of Bishops must consent to a deposition "by a majority of the whole number of Bishops entitled to vote." Some reasonable people, like the Rev. Mark Harris, Father Jake, and some of those who comment at his blog, side with the Presiding Bishop's Chancellor and say that there were enough votes, because in their view the language really means "by a majority of the whole number of Bishops present at the meeting and entitled to vote." But that view is contradicted by the history of the Canon itself, and by other analogous passages in the Constitution and Canons.

Q Explain what you mean, please.

A Ever since its first version adopted in 1853, and throughout its three subsequent amendments since then, the Canon has used language that meant the majority of the whole House of Bishops had to approve the deposition of a fellow Bishop. (See the details here.)

In 1901, as part of a complete revision of the Constitution and Canons begun in 1895, the General Convention of the Church adopted a Constitution which used the exact same language in requiring that any changes to the Book of Common Prayer, and any further changes to the Constitution itself, had to be approved by the same "majority of the whole number of the Bishops entitled to vote in the House of Bishops" (Constitution, Arts. X and XII). So when the revisers of Canon IV.9 adopted this same language in 1904, they were saying that the deposition of a Bishop---which, remember, had theretofore always required such a majority---would continue to require such a majority.

It cannot seriously be argued that the language of Arts. X and XII as so adopted could be read to mean that just a simple majority of the Bishops present at a meeting could approve changes to the Constitution or to the Book of Common Prayer. Look at what this would mean if it were true today: with 294 Bishops entitled to vote (as of March 12, 2008), a quorum of the House of Bishops is just 68 active Bishops (because Art. I, section 2 of the Constitution spells out that for purposes of a quorum, only active Bishops with jurisdiction are to be counted). So under such a reading of the language as originally adopted in 1901, at a meeting where just 68 active Bishops were present and voting (as on March 12), a change proposed for the Book of Common Prayer, for example, would pass if it got just 35 votes, or just twelve percent of the total number of votes entitled under that language to be cast on the question. That is not reasonable, by any means of construction.

Q OK, but as I look at the language of Arts. X and XII today, it's not the same anymore as the language in Canon IV.9, is it?

A No, you're right, and that difference supplies, ironically, the clincher to this argument. The reason is that General Convention amended those Articles in 1937 to insert the phrase "excluding retired Bishops not present" into the language describing the majority needed to approve any changes. The key point is that neither General Convention 1937, nor any Convention since, ever made the same change to the language of Canon IV.9---they left its language untouched. But the language they inserted into Articles X and XII shows unarguably that by excluding the count of any retired Bishops who are not present, they must by the same token be including in the count any active Bishops who are not present, since only those who are both retired and not present are to be excluded. So that means, before this change was made, the drafters understood the language to require the inclusion in the count of all Bishops, active and retired, who were not present at the meeting itself---and that is precisely the reading that has been uniformly followed throughout the history of Canon IV.9.

Q Well, not really "uniformly," correct?

A (Sigh.) Again, you're right. Supporters of Chancellor Beers's view, such as Bishop Stacy Sauls of Lexington in his recent Memorandum to the House of Bishops, regularly trot out two examples of depositions that occurred in the past fifteen years where it also appears, from the records that survive, that there was not a full majority of all the Bishops in the House present and voting for the depositions. But an act done in violation of the Canon cannot serve as a precedent for how to follow the Canon---that's a logical impossibility. The solution, if you want to depose people on the vote of just those who show up, is to strike the words "whole number" from the Canon and add the words "present at the meeting"---just as the drafters did in the case of Canon III.12.8 (d), which provides that a Bishop's resignation may be accepted by "a majority of those present" (emphasis supplied).

Q So, what's going to happen in the case of Bishop Duncan?

A All of the Bishops in the House of Bishops are going to have to educate themselves on these issues, and show up in September prepared to address and discuss them, because I predict that a real donnybrook will ensue if the Presiding Bishop does go forward with her single-minded plan to remove him without having received consent to inhibit him first, as required by the Canon. If the House simply kowtows to her wishes and rubber-stamps a "deposition"---even with the full number of votes required this time---it still will be an unlawful act, because as the Canon itself says, only a Bishop who has first been "inhibited" is "liable to deposition". Bishop Duncan, remember, was not inhibited; therefore, the Canon says he cannot be deposed under its own terms. My hope is that, as the Bishops read about this and educate themselves, they will come to see that it will be futile to pile one illegal act upon another, no matter what Chancellor Beers or the Rt. Rev. Stacy Sauls advises them, and that they will either halt the proceeding in its tracks, or (better yet) inhibit the Presiding Bishop herself from going forward with her unlawful plan.

Q If I want more information than just what is in this summary, where should I look?

A These eleven posts (seven on the canons, and four on San Joaquin) will provide you with all the links that you need to become an expert on the situation:

On the Situation in San Joaquin:

And finally, as a bonus, here's how the House of Bishops, if it has the spine to act, could ward off the coming donnybrook:

Envoi: Anyone who takes the trouble to read the foregoing posts will know that I feel strongly that Canon IV.9 is absolutely the wrong Canon to apply to the cases of Bishops Cox, Schofield and Duncan. I express no opinion here on what would be the proper outcome of a presentment brought against any of them on charges made under Canon IV.1, because a such a presentment would require a trial, and the outcome of each trial would depend on what facts could or could not be proven in each individual case. But that is not my point.

Rather, the point I want to drive home here is that Canon IV.9 is not only the wrong Canon to use in these circumstances, but it is not even being followed. The procedure which the Presiding Bishop proposes to use to depose Bishop Duncan is unlawful, just as was the procedure she followed in "deposing" Bishop Cox, because neither of them was ever inhibited, as the Canon requires. Believe me, it will be in no Bishop's interest (other than that of the Presiding Bishop, because she alone is driving the agenda) to go on record as flouting the plain meaning of the Canon---and in September, the Bishops will not be able to hide behind a voice vote. Every single Bishop attending will have to be recorded as voting either "Yea" or "Nay" on allowing the resolution to depose to go forward. The lawlessness of those who cast their lots with the Presiding Bishop will then be out in the open for all to see. And for a Bishop knowingly to vote to break the law means not only that he or she will be committing the very act with which they are charging Bishop Duncan---that is, "openly renouncing the Doctrine, Discipline and Worship of this Church", and breaking their own ordination vows to boot. It means also that by casting such a vote, each of them becomes a living contradiction of their faith, that is, a professed disciple of Christ who nonetheless tramples at will, when it is expedient, on the law of the Church.

In sum: the watchword among the Bishops in this instance had better be Matthew 11:15.

* * * * *

And now, here is the language of Canon IV.9 for reference:

CANON 9: Of Abandonment of the Communion of This Church by a Bishop

Sec. 1. If a Bishop abandons the communion of this Church (i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or (ii) by formal admission into any religious body not in communion with the same, or (iii) by exercising episcopal acts in and for a religious body other than this Church or another Church in communion with this Church, so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in this Church; it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop and with the certificate to send a statement of the acts or declarations which show such abandonment, which certificate and statement shall be recorded by the Presiding Bishop. The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. During the period of Inhibition, the Bishop shall not perform any episcopal, ministerial or canonical acts, except as relate to the administration of the temporal affairs of the Diocese of which the Bishop holds jurisdiction or in which the Bishop is then serving.

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false or utilizes the provisions of Canon IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement constitutes (i) a good faith retraction of the declarations or acts relied upon in the certification to the Presiding Bishop or (ii) a good faith denial that the Bishop made the declarations or committed the acts relied upon in the certificate, the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, terminate the Inhibition. Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

The Sauls Memorandum Refuted (II)

In this post, I complete my rebuttal to the Memorandum sent to the House of Bishops by the Rt. Rev. Stacy F. Sauls, of the Diocese of Lexington. As in the previous post, the original text of the Memorandum is in black, and my comments are inserted in purple. The footnotes (numbers preceded by a *) appear at the end. This part takes up with the argument beginning on page six of the Memorandum.

MEMORANDUM (Continued)
. . .

(3) Evolutionary Context

In its evolutionary context, “the whole number of Bishops entitled to vote” (1904 language) must mean something different than “the whole number of Bishops entitled at the time to seats in the House of Bishops” (1874). 

The very fact you choose “Evolutionary Context” as a framework for your analysis shows how you have preordained what the outcome of that analysis will be: since “evolution” implies a change from something that is less fit for its environment to something that is “more fit,” you want to set up an argument that the deposition language “evolved” from (A) a requirement that all Bishops (both active and retired) decide the fate of a colleague who is to be deposed without a trial to (B) a requirement that “only those Bishops present at a meeting where there is a quorum” decide it. The latter requirement is, in your view from present-day hindsight, more adapted to the realities of today's Church politics. Unfortunately for that point of view, the actual history of the canonical changes does not support such an analytical framework. Indeed, while all else around it may be said to have "evolved", the current language of the Canon has been the same since it was first introduced.
The 1904 amendment was enacted as part of a process of comprehensive constitutional and canonical revision. One of those revisions was making allowance for suffragan bishops,*16 which were constitutionally
authorized for the first time in 1910 under Article II, Section 4 of the Constitution.*17 

Again, not so fast, Bishop Sauls: there precious little evidence in the record that the 1904 changes to Canon IV.9, which as you said earlier (in n. *13) were part of a comprehensive revision proposed originally in 1895, were drafted so as to allow for the recognition of suffragan bishops with a seat but no vote some fifteen years later. As White & Dykman make clear (p. 62), the proposal to allow suffragans grew out of a commission appointed by the General Convention of 1904, which did not report its recommendations until the Convention of 1907, and which finally saw those recommendations adopted in 1910. In light of the comments of Mark McCall on this point, I am withdrawing the earlier criticism I had that there was no evidence of any connection between these events at all. I will concede that there may have been some connection, but as we shall see, what evidence there is fails to support your contention that a change in substantive meaning was intended between the 1874 language and that adopted in 1904.
The contemporaneous constitutional revision of 1901 did not, however, extend the right to vote in the House of Bishops to suffragan bishops. Thus, suffragan bishops were legally entitled to seat and voice but not vote. 

The position of suffragan bishops was not authorized, as you just said in the previous paragraph, until 1910. So how can you say that “in 1901 . . . suffragan bishops were legally entitled to seat and voice but not vote”? The truth of the matter is that in 1901 (and until 1910), suffragan bishops were not authorized to exist at all.
(See the discussion of Canon 5 of 1829 in White & Dykman, p. 60. The canon was repealed in 1904, but the post of "suffragan" did not officially come into existence until the Constitution was changed in 1910.)
In these circumstances, it was necessary to amend the 1874 language of the abandonment Canon,*18 which had set the standard for
determining abandonment based on the number of bishops entitled to seat rather than those entitled to vote.

This is sophistry. Since suffragan bishops as such did not exist until 1910, there was no “necessity” to amend the 1874 language in 1904. Instead, every bishop who was entitled to vote on abandonment in 1903 continued to be entitled to vote on such questions after the 1904 changes, while suffragan bishops, who did not officially exist before 1910, were created with no right to vote on any matter before the House until 1943, as you state in your footnote *19. As Mark McCall indicates in his comment on TitusOneNine, the change from talking about "the right to seats in the House" to "the right to vote in the House" was a non-substantive change: both before it and afterwards, until the Constitutional amendment six years later, those Bishops with seats in the House were the same Bishops who had the right to vote in the House.
The operative phrase in the 1874 Canon for determining the standard for
determining abandonment, “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops,” was altered with this change in mind in two important ways. First, “to vote” replaced “to seats.” Indeed, before Suffragan Bishops became entitled to vote in 1943,*19 there were as many as 24 of them serving in the House of Bishops at one time,*20 which would have radically altered the standard for determining abandonment were it not for the 1904 amendment.

You continue here to build on your earlier fallacy. It was a canon that defined who voted on abandonment, but it was a Constitutional provision which gave suffragan Bishops a seat, but not a vote, in the House in 1910. So you are arguing, in effect, that while there was enough support to change the Constitution in 1910, there was not enough support to do so in 1904, and so the proponents settled in 1904 for a revision to the canon that could have no possible meaning until the Constitutional amendment passed in 1910. This is a fantasy constructed on a fallacy (post hoc, ergo propter hoc).
The 1901 constitutional amendment also deprived bishops resigning for nonconstitutionally specified grounds of both seat and vote, although the House itself, through Rule XXV, makes it possible for those resigned Bishops, when moral reasons are not involved in the resignation, to be granted seat and voice. 

This is a giant red herring that you have now introduced to the analysis. Since the Constitution as amended in 1901 defined who could have a vote in the House of Bishops, no provision in any “House Rule” or canon could override the Constitution and grant such person a vote just because he was given a seat.
House rules also make it possible to seat honorary and collegial Members (Rule XXIV) as well as guests (Rule XXVI). Guests with seat and voice, as opposed to honorary and collegial Members, are not entitled to be present during Executive Session. Again, were it not for the 1904 amendment to the abandonment canon, the presence of these non-voting Members would have an impact, potentially significant, in the determination of abandonment.

Simply not true. It was the 1901 constitutional amendment, defining who could vote in the House of Bishops, that determined who could vote thereafter on questions of abandonment, given the language of the Canon already in place. That language could not override the language of the Constitution; nor could the provisions of any rule of the House of Bishops. So if you want to draw conclusions about what actually happened, you should focus on the 1901 constitutional changes (proposed initially in 1898), and not on the changes made to the canon in 1904, which simply brought it into line with the Constitution as previously amended (and which used, as we shall see, identical language). (See also the comments of Brad Drell and Mark McCall on this point.)
Second, and very significantly, the 1904 amendment revised the 1874 language in one other crucial respect. The amended Canon omitted the important words “at the time” from the operative phrase as used in 1874. Their omission in 1904 meant that the standard for determining abandonment was not the whole number entitled at the time to vote, thus not requiring that those entitled to vote but not present at the meeting be counted as had been the case with respect to those entitled to a seat theretofore. It is a change that makes sense given the 1904 amendment’s decision to vest the responsibility for determining abandonment in the House as a body and not in the Bishops as individuals.

Total and utter sophistry. Elimination of the words “at the time” did nothing to change the meaning of the language as amended in 1904. The simplest way to see this is to compare the language of the section before and after.

 Here is the 1874 language:
. . . if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent . . .
Remember---throughout the nineteenth century and until 1910, if you were a "Bishop of the Church"---assisting bishop, provisional bishop, or whatever---you had a seat in the House and were entitled to vote. (White & Dykman, p. 18.) Thus in the terms of the 1874 language, there was no distinction between "having a seat" and "having the right to vote." Keeping this in mind, therefore, now look at the 1904 change to the language in Canon IV.9:
If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent . . .

Both versions require the same majority: a majority of all the Bishops in the House who were entitled to vote. (Bishops with seat but no vote were, as pointed out above, first created by the constitutional changes of 1910.) As we will note later, the 1904 language was taken from identical language used in the 1901 constitutional amendments, and was intended to express that an identical (super)majority was required on three types of questions requiring approval by the House: (1) changes to the Book of Common Prayer; (2) amendments to the Constitution, and (3) consent to the deposition of a Bishop for abandonment.

In context, then, it is highly likely that the canonical drafters in 1904, in choosing the language “whole number of Bishops entitled to vote,” did so with the primary intention of correcting the 1874 language so as to provide for the new potential (and actuality) of significant numbers of Members with seats but without vote and making the finding of abandonment an action of the House as a body and not of the individual bishops.

It can only be considered “highly likely” after you have manufactured the context in which you are analyzing the language of the Canon. Nothing needed "correcting" in 1904, apart from the minor matter of bringing the Canon into line with the 1901 Constitution by changing the word "seats" to "votes". To repeat: not one Bishop lost, and not one Bishop gained, the right to vote on questions of abandonment as a result of that change, and when the suffragan bishops were created, they were simply not extended that right until long afterward, in 1943. So nothing changed in that entire 90-year time period: in 1853, in 1874, in 1895, 1904 and again in 1910 and up until 1943, the number of bishops required to depose was a majority of “the whole number of Bishops entitled to vote” at any given time in the House. Furthermore, under your theory you have not accounted for what caused the supposed fear of increasing that number in 1904 to disappear in 1943, when suffragan bishops were given the right to vote. Ever since that time, despite numerous attempts to limit voting rights in the House just to active Bishops, none of which was ever adopted, the number of those allowed to vote, and hence the majority required for a deposition, has only increased, and not decreased (amendments of 1970 and 1982; White & Dykman, pp. 21-22). Your “evolutionary” reading of the canon advocates a very non-Darwinian, sudden and drastic chopping of that number by more than a factor of two---which goes completely against the trend of all the changes in voting that have been made since 1904.
(4) Analogous Provisions

Similar canonical language and situations support interpreting the phrase “whole number of Bishops entitled to vote” as meaning entitled to vote at that meeting. Canon IV.9 itself uses the phrase “all the Members” with respect to the Review Committee when it means a majority of the total number of Members and not the phrase “the whole number of Members.”
Are you saying that there is a difference in meaning between "all" and "the whole number"? Let’s try it out and see. What if, instead of reading: “ . . . it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop . . .” Canon IV.9.1 read this way: “ . . . it shall be the duty of the Review Committee, by a majority vote of the whole number of its Members, to certify the fact to the Presiding Bishop . . .”? It still reads the same to me, and so I do not see your point here.
The constitutional provision for defining a quorum for a meeting of the House of Bishops states: “A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.”*21 Similarly, both Canons I.12.2 (regarding Diocesan Standing Committees in some circumstances) and Canon V.3 (regarding bodies of General Convention) successfully define quorums with reference to all Members without using the word “whole” as an adjective even when using the word “whole” as a noun to describe the total number of Members for purposes of giving notice. The use of the word “whole” as an adjective is not necessary to define the set of Members necessary for a quorum, and since it is unnecessary for that purpose, cannot be held to require such an interpretation in Section 2 of Canon IV.9. Indeed, it has a different purpose therein.
Now you are stating the obvious as though it were a point in your favor (which it is not): the words used to describe a supermajority will of necessity be different from those used to describe a normal quorum. So as a result, there are differences in purpose between the passages that you compare, but they have nothing to do with the use of the words “all” or “whole”. (And by the way, the word “all” is not used either in the definitions of a quorum that appear in Canons I.12.2 and V.3, so your argument on this point fails to show anything more than the semantic equivalency of the two words---which, as I say, is not a point in your favor.)

And while we are on the subject of using other passages in the Canons as analogies, what about the language of Canon III.12.8 (d), which shows that the drafters knew how to describe when a Bishop's resignation could be accepted “by a majority of those present”? (Emphasis added.) Or what about the careful use of the phase “whole number of Bishops entitled to vote” in Articles X and XII of the Constitution as proposed in 1898 and approved in 1901? (See White & Dykman, pp. 134 and 140.) Did the language there mean that the Constitution could be amended, or a new Book of Common Prayer authorized, by a simple majority of those Bishops present at the meeting? To the contrary: as those Articles were adopted in 1901, they required exactly the same number of Bishops to approve constitutional and Prayer Book amendments as had been all along required to approve the deposition of a Bishop. And the stated purpose of the Constitutional amendments at the 1901 General Convention was to make it "more difficult" to approve changes to the Prayer Book and the Constitution---thereby evidencing that the standard for deposing a Bishop at that time was already considered a high one.
Those Articles were subsequently amended in 1937---but Canon IV.9.2 was not---to exclude from the required “whole number of Bishops entitled to vote” any “retired Bishops not present.” (Emphasis added.) Do you thus contend that by analogy, the words “not present” were superfluous, since the phrase “the whole number of Bishops entitled to vote” meant only those who were actually present anyway? To the contrary, again: the 1937 amendments to Articles X and XII are further proof that the drafters understood the phrase “the whole number of Bishops entitled to vote” to refer to all Bishops entitled to vote, whether present at the meeting or not.

So the arguments by analogy to other passages all count against you. There is not a single analogy to another passage in the Constitution or Canons which supports your special-case interpretation of Canon IV.9.
(5) The Actual Purpose of the Word “Whole” in Canon IV.9

If the word “whole” in Section 2 of Canon IV.9 is not intended to refer to the total number of Bishops entitled to vote whether or not present, what is its purpose?
As we have just seen, that is just what the word “whole” was intended to refer to. By setting up the argument to come to your preordained conclusion, you now have to ask a false question. And if the premise in the question is false, then any answer to the question will be equally false.
It would be improper to interpret the Canon in a way that rendered the language chosen by the 1904 General Convention, in whole or in part, meaningless if doing so would be unnecessary. It cannot be ignored that the General Convention, while making significant changes in the definition of the consent requirement for deposition, chose to retain the word “whole”. Again, however, the meaning of that word is completely consistent with the interpretation of this memorandum. Indeed, the word “whole” has important application in the Canon thus understood in that it requires counting abstaining Members present at the meeting, for the purpose of determining what constitutes a majority at a meeting, thus making failures to vote, or abstentions, have the same net effect as a negative vote, which has the effect of making a majority more difficult to obtain than would otherwise be the case. It is not difficult to posit a situation in which Members might express their displeasure at a given Bishop’s conduct and at the same time refuse to consent to the sanction of deposition by registering an abstention. Indeed, the 2008 votes included several abstentions.
I agree that you have found a meaning for the word “whole”, but it is in the false context you have created as shown earlier. The proof of the falsity of your conclusion as to its meaning may be seen by consulting the use of the same language in Articles X and XII of the Constitution, where the number of “retired Bishops not present” is excluded in computing the required majority for an amendment to pass. The language there clearly requires the number of active Bishops who are not present to be counted in determining whether a majority approved the amendment, and by the same token, it would require including the number of Bishops present, active or retired, but who abstain from the vote. So the reason that “whole” may be read in the manner you suggest is not because it refers directly (and only) to abstentions as such, but because it refers to the “whole number of Bishops entitled to vote,” counting those who abstain as well as those who vote, and counting those Bishops who are not present as well as those who are. Thus by concluding that the language requires abstentions to be counted, you are speaking only a half-truth, and refusing to acknowledge the rest of the truth of what the language requires. It’s a little like one of the blind men who describes only the part of the elephant that he can feel himself---and then concludes that he has described the animal fully.
B. Precedent establishes that the House of Bishops acted appropriately in considering and acting upon the Presiding Bishop’s referral to it of the abandonment of communion certified to her by the Review Committee.

In recent history, the House of Bishops has taken similar action regarding two
Bishops, Donald Davies of Ft. Worth (1993) and Neptali Larrea of Ecuador Central (2004). In both cases, the exact procedure followed with respect to John-David Schofield and William Cox was used. Decisions were taken based on a majority vote of those present at a meeting of the House of Bishops. Although the minutes of both meetings leave much to be desired, it appears that 131 Bishops of the 276 total eligible to vote attended the 1993 meeting and of that 143 Bishops of the over 300 total*22 eligible to vote attended the 2004 meeting. In neither case did a majority of those eligible to vote attend.
All this establishes is that those votes were invalid under the Canon as well. (Not that it matters now, except as is necessary to point out that those votes cannot serve as valid precedents.) Doing something wrong can never be a precedent for how to do it---otherwise, nothing would ever be done right.

Very tellingly, no objection was made at all. Even more tellingly, no objection was made at the time by either Schofield or Cox, or by any Bishop present at the time, which included, in the case of Bishop Larrea, many current Members of the House. There is no legitimate distinction to be made between the former cases and the present ones.
That is precisely the problem with the present cases.
Indeed, a fundamental unfairness would arise were Bishops similarly situated as to the Review Committee’s findings and certification treated differently. Impartial administration of the Canons of The Episcopal Church requires recognizing the legitimacy of the present depositions and not the contrary as some have argued.*23
If you want a valid precedent, go to the case of Bishop McCoskry. To depose him in 1878, the Bishops had to wait a number of days before voting so that additional members could be rounded up from their vacations to make a valid majority for deposition. I discuss the details of that precedent in this post.
C. Procedural safeguards assure fairness and justice in the case of Bishops accused of having abandoned the Communion of this Church.

Canon IV.9 provides several important safeguards to assure a fair and just
consideration of the cases bishops accused of abandoning the communion of this Church. Those assurances of due process begin before deposition is even a remote possibility.

First, abandonment is carefully defined by Section 1 of the Canon. A Bishop may
abandon the communion in one of three ways: (i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or (ii) by formal admission into any religious body not in communion with the same, or (iii) by exercising episcopal acts in and for a religious body other than this Church or another church in communion with this Church, so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper
authority in this Church.

Ah, yes---abandonment is “carefully defined.” So carefully, in fact, that it should not be possible to use this Canon to charge someone who has joined another church in the Anglican Communion with “abandonment”---because under clause (ii) of the definition, it is only “abandonment” when you join a religious body that is “not in communion with the [Episcopal Church].” (Emphasis added.) But Bishops like Cox and Schofield, who have transferred to other churches in the Anglican Communion, are nonetheless charged with “abandonment”---of the “Doctrine, Discipline, or Worship of this Church” under the first clause. So either the Canon’s definition contradicts itself, or the “Doctrine, Discipline and Worship” of the Episcopal Church is not the same as the Doctrine, Discipline and Worship of the rest of the Anglican Communion, and the Episcopal Church has no business calling itself a “constituent member” of that Communion. Take your pick.
The Review Committee, composed of five Bishop peers of the accused (a majority of the Committee) along with two Priests and two confirmed adult lay communicants,*24 must first find by a majority vote of all its Members that at least one of the three circumstances constituting abandonment is present and certify that fact to the Presiding Bishop. Inhibition of a Bishop so certified is possible only with the consent of the “three senior Bishops having jurisdiction in this Church.”

Even after the certification and, in some cases, inhibition, the certified Bishop has two months to make a Verified written statement to the Presiding Bishop that the facts alleged in the certification are false.
Not so fast again, Bishop Sauls---the language of the Canon makes clear that the only person who is given sixty days to respond is a Bishop who has been inhibited: “Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false . . .” (emphasis added). It is ludicrous to speak of “safeguards” when the plain language of the Canon was not followed in the case of Bishop Cox, nor is it currently being followed in the case of Bishop Duncan.
If the Presiding Bishop finds that the statement is a good faith retraction or denial, she or he may, with the consent of a majority of the three senior Bishops, dissolve the inhibition and drop the matter. The Presiding Bishop’s discretion is limited (in favor of the accused) by a standard of good faith, to which she or he is canonically accountable. The accused is protected by the necessity of majority consent in the House of Bishops, composed entirely of his or her peers to whom the accused is presumably well known. The House has the right to initiate further investigation, which indeed the accused might request. It should also be noted that a Bishop accused of abandoning the communion of this Church can also avoid further proceedings by renunciation pursuant either to Canon III.7.12 or Canon IV.8.

In the present cases all the procedural safeguards were followed. 

They most certainly were not (see also the comments of Chancellor Stephens on this point). Bishop Cox was deposed without ever having been inhibited, and Bishop Schofield’s joining the Southern Cone was deemed an “abandonment” despite the definition in clause (ii). And now you are construing the Canon to reduce by more than half the number of Bishops required to approve a deposition. These are what you call "safeguards"???
It is particularly noteworthy that neither Bishop certified as having abandoned the communion at any point whatsoever disputed the allegation of the abandonment as certified by the Review Committee, renounced the actions, denied the actions in any way, requested a further hearing, made any rebuttal, issued any defense, or contested the allegation whatsoever.

Have you considered the possibility that the Bishops in question saw clearly, from the arbitrariness behind the application of the Canons, that it would have been utterly futile to do so? Nevertheless, it is my understanding that Bishop Cox has demanded that the Presiding Bishop retract her declaration of deposition, on the ground that the deposition was illegal, and that to refer to him as “deposed” is an act of defamation.
Bishop Duncan, as well as the Standing Committee of his Diocese of Pittsburgh, have not let his pending "deposition" go without protest, either.
Nor did either do so despite having an affirmative canonical duty to do so to avoid deposition.*25 The fair opportunity to do so having been provided, but ignored, the right must at this point be considered waived.

As a person trained in the law, you know well that an illegal act does not become lawful just because no one objects. Illegality, indeed, cannot be waived, because no one can lawfully consent to an illegal act. (See also David Trimble's comments on this point.)
Finally, it must be noted that no Member of the House of Bishops, present or not present, requested further action, investigation, or hearing as permitted under House rules. No challenge was made to the Parliamentarian’s ruling on the meaning of Canon IV.9. Similarly, no Member of the House of Bishops, as permitted by Rule XVII, requested reconsideration of the House’s action. Again, no request having been made at the time, the right to do so must now be considered waived.

“Considered waived”---that is sheer legal obfuscation. (See the detailed refutation of your logic on this point by Mark McCall.) Waiver requires an informed consent. If no one at the meeting was aware that the Canon was not being followed, then there could not have been a waiver. And if you are saying that everyone at the meeting knew that the Canon was not being followed, then you are back to the impossibility of waiving an illegality.
Under the circumstances, then, the House can only conclude that a fair and lawful procedure was followed, as provided by the Canon, and that the decision canonically made stands as the legitimate judgment of the House.

I submit instead that the House should treat the depositions for the nullity that they are, leave the Bishops alone, and negotiate a resignation with Bishop Schofield that would allow the Church to go forward with a lawful replacement in San Joaquin. (See the details of my recommendations here.)


*16 The title “suffragan” had been previously but rarely used in TEC, but the so-called suffragan bishops functioned as canonical “assistant” bishops.

*17 White and Dykman (n 5) 62.

*18 Although the office of Suffragan Bishop was not created constitutionally until after the 1904 amendment to the abandonment canon (the creation of the office of suffragan having been passed on first reading in 1907, the next General Convention, and on second reading in 1910), the creation of the office had long been contemplated. It had been proposed as early as 1847, and gained serious interest for missionary reasons at the General Convention of 1871 (the year after the Church of England began again appointing Suffragan
Bishops) and thereafter [White and Dykman (n 5) 60-62].
*19 White and Dykman (n 5) 21.

*20 The Episcopal Church Annual: 2008 (Harrisburg: Morehouse Publishing, 2006).
*21 Constitution of The Episcopal Church, Art. I, Sec. 2 (2006).
*22 The Episcopal Church Annual 2004 (Harrisburg, Pa.: Morehouse Publishing, 2004) 429-436.

*23 “Western Louisiana Bishop: ‘Two Sets of Rules for One Church,’” The Living Church (17 April 2008)

Thursday, May 29, 2008

The Sauls Memorandum Refuted (I)

The lengthy Memorandum to the House of Bishops authored by the Rt. Rev. Stacy F. Sauls of the Diocese of Lexington is, as many bloggers have already spotted, full of inconsistencies and erroneous analysis. In considering how best to demonstrate this point, I have decided to use a "Fisking" format for its first five pages, where the errors accumulate until the conclusions can no longer be validly drawn. I am putting this part of my response up now; the second part is posted here. Suffice it to say that everyone who takes the trouble to follow along and see what is being claimed in light of what is actually the case should have no difficulty in seeing, without any help from me, how these errors permeate the rest of the Memorandum. The original is in black text, and my fisks are in purple; the footnotes (numbers preceded by a *) are reproduced at the end.

May 27, 2008

To: House of Bishops

From: Task Force on Property Disputes

Re: Proper Use of Abandonment Procedures for Bishops

Subsequent to our meeting at Camp Allen, some Bishops of The Episcopal
Church*1 and some commentators*2 have suggested that we may have failed to follow our own rules for giving consent to the deposition of a Bishop for abandoning the communion of this Church. A careful analysis and examination of the canon law, however, confirms that consent to deposition was procedurally appropriate, as the House’s Parliamentarian ruled and the Presiding Bishop’s Chancellor has advised.*3
A “careful analysis and examination of the canon law”? We shall see.
This memorandum is intended to provide the Members of the House with necessary legal background and the reasoning supporting that conclusion for the assurance of the Members as to past actions and in advance of their consideration of any additional such actions in the future.
Actually, this memorandum is intended to arrive at a foregone conclusion (that the Presiding Bishop and her Chancellor committed no error), and would serve as a very poor guide to any such additional actions in the future.

The House of Bishops followed the proper canonical procedure for consenting to the depositions of John-David Schofield and William J. Cox from the Ministry of The Episcopal Church as provided in Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) for the following reasons:

A. The intended meaning of Section 2 of Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) is that the consent of a majority of the Bishops voting at a meeting of the House of Bishops constitutes valid consent for the deposition of a Bishop.

B. Precedent establishes that the House of Bishops acted appropriately in considering and acting upon the Presiding Bishop’s referral to it of the abandonment of communion certified to her by the Review Committee.

C. Procedural safeguards assure fairness and justice in the case of Bishops accused of having abandoned the Communion of this Church. 

All right, so we know what your conclusions are before we start (and so, most likely, did you). Now let’s look at the analysis.

The House of Bishops met for its annual, and duly noticed, spring meeting at
Camp Allen, Navasota, Texas on March 7-12, 2008. As is its custom, the House
scheduled a business session during that meeting. Members were notified in advance of the business session that the certification of the abandonment of the communion of this Church by the Rt. Rev. John-David Schofield, Bishop of San Joaquin, and the Rt. Rev. William J. Cox, Bishop Suffragan of Maryland, Res., would be considered. The business session was held, as planned, on March 12, at which time the subject of consent to deposition was before the House. 
Actually, the “business meeting” (meaning chiefly the business of deposing Bishops Cox and Schofield) was scheduled for the last day of the Camp Allen session, when it was highly likely that a number of Bishops would already have left. It was scheduled for March 12 because that was the earliest day following the 60-day period in which Bishop Schofield had to deny the charges that he had “abandoned the communion of this Church” under Canon IV.9 (having been given notice of his inhibition on January 11), and thus was the only day on which the assembled Bishops who were left by that point could take up the “business.”
With respect to each Bishop, a voice vote was taken, which was not unanimous and included abstentions but which clearly indicated majority consent to the depositions of Bishops Schofield and Cox by a wide margin in each case.
By holding just a voice vote, the Presiding Bishop ensured that the actual count of those voting for and against, and the abstentions, would be forever lost to the record. How convenient it is not to have to deal with the actual numbers, when by the time the matter was called for discussion the attendees were down to just 68 active bishops plus an indeterminate number of retired bishops, and the departure of just one active bishop (since retired bishops do not count toward a quorum) would have meant there was no longer even a quorum to hold the vote at all!
Presiding Bishop Katharine Jefferts Schori, as required by Section 2 of Canon IV.9, has since deposed both from the Ministry of The Episcopal Church.*4
Deposition was not “required”---indeed, the motion to depose lost---if it was not approved by the requisite number of Bishops.

A. The intended meaning of Section 2 of Canon IV.9 of the Constitution and Canons of The Episcopal Church (2006) is that the consent of a majority of the Bishops voting at a meeting of the House of Bishops constitutes valid consent for the deposition of a Bishop.
An extraordinary statement, given the history of this Canon: although the language used has differed over the years, the requirement that the deposition of a colleague be approved by a majority of all Bishops entitled to vote in the House (whether present or not at the meeting where the vote is taken) has remained unchanged since the Canon’s original enactment in 1853, as we shall see.
The procedure for deposing a Bishop of The Episcopal Church for abandonment of the communion of this Church requires, upon certification of the abandonment by the Review Committee, that the Presiding Bishop “present the matter to the House of Bishops at the next regular or special meeting of the House.”
Not so fast, Bishop Sauls---to be “liable to deposition”, a Bishop must not only be certified by the Review Committee to have abandoned the communion, but he must also have been first inhibited with the consent of the three senior Bishops of the Church. You (conveniently) left out the requirement for inhibition in setting up your premise. Is that because you also want to use this Memorandum to "justify" the Presiding Bishop's proposed deposition of Bishop Duncan without any inhibition, just as she did with Bishop Cox?
The Canon goes on to provide in its next sentence:

"If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed."

The current language of the Canon has evolved over time, and some understanding of that evolution is necessary to understand the meaning of the Canon’s current language.

The abandonment Canon (currently numbered IV.9) was originally enacted in 1853, and pertinently amended in 1859, 1874, and 1904.*5 It has consistently provided for Bishops found to have abandoned the communion of this Church, with required consent, to be deposed by the Presiding Bishop. It is the giving of that consent that is primarily at issue now.

Indeed, again.
The method and requirements for giving consent have evolved over the Canon’s 165-year history, as follows:

 • 1853: “with the consent of the majority of the Members of the House of

 • 1859: “with the consent of a majority of the House of Bishops.”*7
You have misquoted White & Dykman here, on a point that is crucial to your later argument. The 1859 version did not read as you have it, but said the same as the 1853 version: “with the consent of the majority of the House of Bishops” (emphasis supplied).
 • 1874: “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops” at a duly convened meeting of the House.*8

 • 1904: “consent of the House, by a majority of the whole number of Bishops entitled to vote.”*9
Absent evidence to the contrary, we must interpret the General Convention’s choice to change the language defining the necessary consent from one version to another also to indicate an intention to change the definition itself.
Why assume that a change in the language necessarily meant a change in meaning? The history of the Canon (which you have relegated to some isolated footnotes, and which you have interpreted based on a misreading of the actual changes) shows instead that it was amended in a continuing process intended to clarify its meaning as applied to specific circumstances as they arose.
Relegating some explanation of the rationale behind the original enactment and its amendments to the footnotes, the meaning of the consent definition evolved over time as follows:

 • 1853: the consent of a majority of all Members of the House of Bishops was required without the necessity of a meeting being held.*10
The House did not read it that way at all. It held a meeting to vote on the deposition of Bishop Ives immediately following the adoption of this Canon at the General Convention of 1853. Surely such an interpretation of the Canon by those who enacted it, evidenced by their conduct immediately afterward, completely outweighs your unfounded speculation that a meeting was not considered necessary under the Canon.
 • 1859: the consent of a majority of the Members in attendance at a meeting of the House of Bishops (the meeting requirement being implicit and established by subsequent interpretation).*11
Not by “subsequent” interpretation, but by consistent interpretation ever since the Canon was first adopted. Your argument in the footnote (*11) that there was a change from the definite to the indefinite article in front of the word “majority” has no foundation in fact, and leads your subsequent conclusions badly astray.
• 1874: the consent, at a meeting of the House of Bishops, of a majority of the total number of Members entitled to a seat, whether or not present.*12
Or, said another way, it was exactly the same majority of Bishops required under both the 1853 and the 1859 versions. The only relevant change in the 1874 amendment was to make the requirement of a meeting of the House explicit, and in so doing the House simply acknowledged what had been its consistent practice over the previous years.
• 1904: the consent of the House as determined by a majority of the Members
entitled to vote at that meeting (not entitled to vote whether or not present)*13
Now you have jumped the ship in order to arrive at your predetermined destination. Your interpolation of the words “at that meeting”---which are not in the language of the Canon itself---cannot be justified by logic or history, and is not justified by any of your subsequent arguments.
The interpretation of the 1904 language is governed by five considerations: (1) the issue of who gives consent, (2) canonical context, (3) evolutionary context, (4) analogous provisions, and (5) the actual purpose of the word “whole” in Canon IV.9.

(1) The Issue of who Gives Consent

The 1904 amendment replaced the consent of the Members acting individually with the consent of the body itself. This is a significant difference with practical implications.

No, it is a specious difference wholly without support in the history and application of the Canon, and one that is invented only to get you where you have already decided to go.
The election of Bishops, for example, requires the consent of certain individual Members (those Bishops having jurisdiction) and not the consent of the House of Bishops expressed in a vote thereof, even when the consents are given during General Convention.*14 

Your footnote *14 continues the specious distinction you have just made. You cite to Canon III.11.3. Subsection (c) of that Canon reads that “. . . notice of [the] consent [by the House of Deputies to the election of a Bishop] . . . shall be sent to the House of Bishops.” (Emphasis added.) The House of Bishops votes on the matter during one of its regular sessions at General Convention---individual consents are not gathered up during coffee breaks and tallied afterward, but a vote of the House is taken and recorded in its Minutes. That vote is then certified to the House of Deputies, if the required number of active Bishops have consented. The only time no meeting is needed to take the vote is when the election is being ratified in the period between one General Convention and three months before the next.
When the Members act individually, the majority is determined based on the total number of individuals and not based on the number of those individuals present at the meeting. 

The specious logic continues. The Bishops act “individually” when they are not in a meeting, as when they are ratifying an election when General Convention is not in session. When they vote on an election at one of their meetings during General Convention, the same number of affirmative votes is required by the Constitution and Canons as when they are voting individually outside of Convention: it is a majority of all Bishops exercising jurisdiction, and has nothing to do with the number who are present at a given meeting during Convention.

On the other hand, when the House acts as a body, a majority is determined based on the number of those eligible to vote who are present.*15 

This is not necessarily the case. As just noted, if the vote is to ratify the election of a colleague during a session of General Convention, a majority of all Bishops exercising jurisdiction in the Church must still give their consent, regardless of the number present at the given meeting, and as we shall see, the majority of “the whole number of Bishops entitled to vote” is also not tied to the number who are actually present. Likewise, your cite in the footnote to Canon V.3---specifying that a quorum is a majority of all the members in a given body, except where the Constitution and Canons provide otherwise, is a non-sequitur. It is not Canon V.3, but Art. I, section 2 of the Constitution that specifies the definition of a “quorum” of the House of Bishops, and the number it specifies is smaller than the number specified by Canon V.3, because Art. I, section 2 leaves bishops who have resigned jurisdiction out of the count for a quorum.
In changing who gives consent from the individual Members (1874) to the House itself (1904), a difference in how a majority is to be determined was presumably intended. Otherwise, there would be no practical difference between the 1874 language and the 1904 language.

Precisely the point! All that occurred in going from the 1874 language to the 1904 language was a grammatical change of subject, not a change in meaning. Your distinction between “the House, by a majority . . . of the Bishops” and “the majority of the House” is a distinction without any semantical difference. This is especially the case when we take up the use of the word “whole” (in Part II, to come).

Not only is there not clear intent to the contrary, on the whole, evidence of intent favors the general rule as set forth in Canon V.3, as explained below.

The “general rule as set forth in Canon V.3” is a rule dealing with a quorum, not a particular vote on deposition, and it has no application to the House of Bishops, because Art. I, section 2 of the Constitution supersedes its definition.
(2) Canonical Context 

It is noteworthy that the reference to “a majority of the whole number of Bishops entitled to vote” in the current Canon immediately follows the requirement of a meeting of the House and is specifically linked to the House itself and not to the individual Members thereof. Therefore, the plainest reading in context is that it means “a majority of the whole number of members entitled to vote” at that meeting.

I dealt with this argument in my previous post, and showed how this meaning does not at all follow from your artificially derived distinction between “the House” and “the individual members thereof.”
*1 “Diocese of South Carolina Protests Presiding Bishop’s failure to follow the Canons,” (Diocese of South Carolina, 27 March 2008)

*2 See, e.g., George Conger, “Call for Review after Trial ‘Flouted Church Rules,’” Church of England Newspaper, 28 March 2008, p. 5.

*3 “House of Bishops’ Votes Valid, Chancellor Confirms,” (Episcopal News Service, 15 March 2008)
*4 The Deposition of a Bishop (John David M. Schofield) dated March 12, 2008 and the Deposition of a Bishop (William J. Cox) dated March 12, 2008, in both cases signed by the Most Rev. Katharine Jefferts Schori and witnessed by the Rt. Rev. Richard S. Chang and the Rt. Rev. Kenneth L. Price, Jr.
*5 Edwin Augustine White and Jackson A. Dykman, Annotated Constitution and Canons vol. 2 (1981 ed.) (New York: Office of the General Convention, 1985) 1079-1082 (herewith cited as White and Dykman).

*6 White and Dykman (n 5) 1079.

*7 White and Dykman (n 5) 1080.

*8 White and Dykman (n 5) 1081.
*9 White and Dykman (n 5) 1082.

*10 The canon was originally enacted in response to the decision of Bishop Levi S. Ives, Bishop of North Carolina, to become a Roman Catholic in 1852.

*11 The language of the amended Canon does not explicitly require a meeting, but does change the consent required from that of the Members thereof to being that of the House itself. There seems to have been some dispute, possibly relating to the change in language, over whether a meeting was required when the Bishops were forced to consider the abandonment of Bishop George D. Cummins, the Assistant Bishop of Kentucky, in order to found the Reformed Episcopal Church in 1873. Presiding Bishop Benjamin Bosworth Smith (Bishop of Kentucky) obtained the consent of a majority of the total number of Bishops without calling a meeting after which Bishop Smith deposed Cummins. Concern that the intention was to require the action at a meeting of the House led the House, meeting at the General Convention of 1874, to reaffirm the consent in the context of a meeting, and in October of 1874, Bishop Smith repeated the deposition. [White and Dykman (n 5) 1081]. A logical argument can be made that the change from the definite article “the” to the indefinite article “a” in the 1859 amendment together with the change to requiring
the consent of the House as such implied that a meeting was required and redefined the consent requirement as meaning as given by a majority at a meeting.

In fact, as noted above, there was no such change, and so this speculation is groundless.
*12 The extraordinary requirement of a majority of the total number of Bishops entitled to a seat was likely a reaction to the crisis of the Reformed Episcopal Church schism and confusion surrounding the deposition of Cummins.
As we have already seen, there was no change in the specified majority of Bishops required to vote on a deposition from 1853 through 1874, and continuing right down to today: it was then, and is now, a majority of all ("the whole number") of the Bishops entitled at any given time to vote in the House. 
*13 The 1904 language was originally proposed to 1895 Convention by the Joint Commission on Revision of the Constitution and Canons [General Convention, Journal of the General Convention of The Episcopal Church, 1895 (General Convention, New York 1895) 679]. The report was taken up by the Convention in sections, the abandonment canon being revised in 1904 [General Convention, Journal of the General Convention of The Episcopal Church, 1904 (General Convention, New York 1904] 325-326, 598.

*14 Cf. Canon III.11.3 (c) and (d).

*15 Canon V.3.

This completes Part I of this Refutation. Part II is posted here.

Wednesday, May 28, 2008

Watch This Space

In a previous post concerning the history and interpretation of the section of the Abandonment Canon that deals with deposition of the abandoning Bishop (Canon IV.9.2), I closed with this challenge: "For all the bytes out on the Web that have been devoted to this subject, I have yet to see a convincing textual argument that would justify the Presiding Bishop's (and her Chancellor's) misreading of the Canon. Now, who's next?"

Well, it appears that no less formidable a canon lawyer than the Rt. Rev. Stacy F. Sauls of the Diocese of Lexington has thrown down the gauntlet.  Much of what he says in his interpretation of the language of Canon IV.9.2 tracks the same defective argument I analyzed in my previous post, and so has already been refuted. But he goes further, and attempts to draw wholly new conclusions out of the simple change in subject that I pointed out had occurred between the 1874 and the 1904 versions of the Canon. He also brings in new contextual and historical arguments, all of which require a more detailed and thoughtful treatment that will be worthy of such a presenter. Let me just say at this point that I welcome his challenge---it is exactly what I have been asking for from the Presiding Bishop and her colleagues. 

Thus, as they say on the billboards, "Watch This Space." In the meantime, I would refer you to the consummate lay person's refutation already posted by the inimitable Christopher Johnson.

Tuesday, May 27, 2008

Who Shall Own the Property?

[N.B.: there is an update to this post below, in light of the Virginia court's 6/27/2008 decision.]

Frank Kirkpatrick, a professor of religion at Trinity College who has contributed some notable articles about the split that has occurred in the Anglican Communion and in The Episcopal Church itself, has a new article which observes that as of December 2007, there were some 55 lawsuits pending in the courts over issues of who owned or controlled property that had belonged to churches which were once in TEC, but which had since voted to leave. Given that the Church has just 100 dioceses within the United States, that is a remarkable number: on average, there is a property dispute pending in more than half of the dioceses in this country.

Attention is focused for the time being on the Diocese of Virginia, where a hearing is scheduled May 28 in the Circuit Court for Fairfax County in the ongoing litigation between that Diocese (with The Episcopal Church as its partner) and the eleven churches that have left it to join the Convocation of Anglicans in North America ("CANA"). The issue to be addressed at that hearing will be the constitutionality of Virginia's "Division Statute" (Va. Code § 57-9[A]), as held by the Court in an earlier ruling to be applicable to the current situation. For reference, the statute provides as follows:
If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.
This statute was enacted in 1867, following the Civil War, at a time when Methodists, Baptists and Presbyterians in Virginia were experiencing a considerable amount of structural turmoil that led to the splitting off of a number of congregations from the parent churches. In the years following its passage, there were some twenty-nine orders entered by Virginia courts declaring the ownership of Methodist and Presbyterian properties alone, but the statute had not been applied to an Episcopal church before the present case.

In his earlier decision, Judge Randy Bellows of the Fairfax County Circuit Court found that a "division" had "heretofore occurred" within the Diocese, The Episcopal Church, and the Anglican Communion itself, and that CANA was a "branch" of those entities which the dissident parishes were free to decide to join. This view of the statute then raised certain constitutional issues about the statute in light of the First Amendment (made applicable to States some time after §57-9 was enacted). These issues are to be addressed at the May 28 hearing. (Complete links to all the documents filed to date in this lawsuit may be found here---my thanks to the Diocese for putting this page together.)

The chief constitutional issue concerns the deference, if any, which the State of Virginia must accord to The Episcopal Church as a "hierarchical church." (Such a church is marked by increasing levels of higher and higher authority, beginning with local congregations and rising through regional entities---dioceses, in the case of TEC---to an overall national authority at the top---in the case of TEC again, its General Convention. It is in contrast to a "congregational church," in which the local congregation is itself the highest authority, and makes all the decisions affecting that church. Thus the latter type of church can have disputes only within individual congregations, while disputes in hierarchical churches are between congregations and those entities above them in the hierarchy.) Under a United States Supreme Court decision of 1872, courts are forbidden by the provisions of the First Amendment from scrutinizing religious doctrine or teachings in deciding civil cases (Watson v. Jones, 80 U.S. [13 Wall.] 679). Under Watson, if the highest church body to address the matter has decided a doctrinal or religious question in such a way as to resolve the issue of, say, who owns the church's property, then that decision cannot be questioned or reversed by a civil court. And if there were no such decision, presumably (although the Court did not say) the civil courts would have to refrain from going into the matter until the highest church body had an opportunity to do so.

Such was the law for more than 100 years. Then, in 1979, the Supreme Court decided Jones v. Wolf, a case from Georgia involving a congregation in the Presbyterian Church which split up over doctrinal differences (443 U.S. 595). The majority of the congregation voted to leave for another branch of the Church, and claimed the right to keep the church property; the minority, which wanted to stay, lost its suit for the return of what it claimed was its property. Applying what it called "neutral principles," the Georgia Supreme Court had examined the church's deed, its corporate charter, the governing documents of the Presbyterian Church, and State law concerning implied trusts, and found no facts or language to support a conclusion that the congregation's property was held in trust for the parent church. In doing so, it gave no deference to a decision by the supervising Presbytery (which exercised regional authority over the congregation) that the minority was the only true continuation of the original congregation, and that the majority no longer had authority to speak for the Presbyterian Church.

The United States Supreme Court, in a 5-4 decision, upheld Georgia's "neutral principles" approach to deciding the dispute, but remanded the case for the Georgia Supreme Court to articulate whether "majority rule" was a part of those principles. In doing so, it expressly held that Georgia was not required by the First Amendment to defer to the hierarchical ruling as to which group was the Church's true successor:
 . . . We hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.
The dissent would require the States to abandon the neutral-principles method, and instead would insist as a matter of constitutional law that whenever a dispute arises over the [443 U.S. 605] ownership of church property, civil courts must defer to the "authoritative resolution of the dispute within the church itself." Post, at 614. It would require, first, that civil courts review ecclesiastical doctrine and polity to determine where the church has "placed ultimate authority over the use of the church property." Post, at 619. After answering this question, the courts would be required to "determine whether the dispute has been resolved within that structure of government and, if so, what decision has been made." Post, at 619 n. 6. They would then be required to enforce that decision. We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.
One would think that this language makes the holding of the case fairly clear. Yet here is a quotation taken from the supplemental brief for the Diocese of Virginia submitted for the May 28 hearing: "The Commonwealth [of Virginia] has no legitimate interest, compelling or otherwise, in the outcome of church property disputes. For the Commonwealth to assert an interest in promoting decision-making by congregational majorities---particularly within a hierarchical church, and contrary to that church's rules---itself violates the First Amendment." (Brief at p. 13, citing for a support a case that was decided before the decision in Jones v. Wolf.) Pardon, but as we have just seen, the Supreme Court in Jones v. Wolf sent the case back to Georgia for the courts to do just what the Diocese claims would violate the First Amendment---to decide a church property dispute on neutral principles, including majority rule, without having to defer to a preexisting adjudication in favor of the minority that had been made by the hierarchical church.

It is true that the Presbyterian Church in Jones, unlike TEC in this case, lacked any trust language in its governing document. Could that be a defining difference? Apparently TEC and the Diocese think it is. They derive this notion from the following oft-quoted passage from Jones v. Wolf:
The dissent also argues that a rule of compulsory deference is necessary in order to protect the free exercise rights "of [443 U.S. 606] those who have formed the association and submitted themselves to its authority." Post, at 618. This argument assumes that the neutral-principles method would somehow frustrate the free-exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral-principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. [Fn. omitted.]
What we have here, however, is not a holding by a majority of the Supreme Court, as in the quote in the previous paragraph, but an answer to an objection to that holding made by the dissent. And in answering that objection, Justice Blackmun stepped out of his normal role as Supreme Court Justice and engaged in the wholly unjudicial role of practicing law: he gave legal advice to those who would want to devise a way around the Court's holding. "Simply change your deeds or charter, or even put an express trust clause in your constitution, and then the courts will be required to honor your intent." Then, however, the justice part of Justice Blackmun takes over, and adds this caveat: "provided it [the trust] is embodied in some legally cognizable form." Which is to say: "I'm not going to draft the language for you. Just make sure it is in a form such that the courts can give legal effect to it."

This is a fairly crucial point, because I believe that the ultimate outcome of the Virginia lawsuits will in some way turn upon it, so let's be very clear here. Justice Blackmun and the majority in Jones v. Wolf first hold that (1) a State is free to decide church property disputes in accordance with "neutral principles" of law---meaning principles that are no different, as far as the law of property is concerned, from those used in all other cases of property disputes. Next, they hold that (2) as a part of those "neutral principles", they are free to incorporate a rule that in the absence of special provisions to the contrary, a vote by the majority controls what happens to the property---and they send the case back to Georgia to have just such a rule clearly articulated. Then, in answer to the dissent's objections that this result does not comport with the deference owed to hierarchical churches in matters of religious governance, Justice Blackmun steps out of his robes for a second to say: "Not at all---here's how you can be hierarchical and still keep your property, even under neutral principles and majority rule: just put an express trust in favor of the hierarchical church into the church deeds or charter, or into the hierarchy's constitution, and the courts will be bound to recognize what you have done---if you put it into legally cognizable form."

Well, TEC took Justice Blackmun's legal advice---or tried to. Immediately after the decision in Jones v. Wolf came out, TEC's General Convention of 1979 adopted what is known as the "Dennis Canon," named after the Bishop who drafted and proposed it (adding sections 4 and 5 to Canon I.7):
Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.
Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.
(For a while, it appeared as though the House of Deputies had never properly consented to the adoption of this Canon after it passed the House of Bishops, but that controversy now appears to have been laid to rest, even if some questions remain.) The problem with the Dennis Canon as drafted is that it purports to create a trust, but it is the trust beneficiary who is doing the creating, and not the owner of the trust property itself. In the law of trusts, the person creating a trust is called the settlor, or trustor; the person holding title to the property placed in trust is called the trustee; and the person for whose benefit the trust is created is called the beneficiary. For obvious reasons, the law does not allow beneficiaries to go around declaring that someone else's property is held in trust for their benefit---yet that is just what TEC did with its Dennis Canon. Does it satisfy Justice Blackmun's criterion of a trust in "legally cognizable form"? In cases where the Canon has been involved, some courts have said yes, and some have said no---but the real story, as so often in the law, is not that simple.

Courts that have recently considered the effect of the Canon in church property disputes have in many cases also applied the "neutral principles" approach. For example, in Berthiaume v. McCormack (153 N.H. 239, 891 A.2d 539 [2006]), the New Hampshire Supreme Court ordered its priorities as follows: first, a court must “consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use or disposal of church property.” (Id. at 248.) It justified this ranking by holding that such an approach “is consistent with [the] rules governing the resolution of property disputes generally. In resolving such disputes, [courts] consider extrinsic evidence and the circumstances surrounding a conveyance to determine the parties’ intent only if the language of the relevant documents contains either patent or latent ambiguity.” (Ibid. [citations omitted].)

The highest courts of Alabama, Georgia, Kentucky and other states have likewise applied a “neutral principles” approach to church property disputes. (Trinity Presbyterian Church v. Tankersley, 374 So.2d 861, 865-66 (Ala. 1979) ("in this litigation . . . the composition of the church’s corporate structure was the principal issue to be determined”); First Evangelical Methodist Church v. Clinton, 257 Ga. 459, 360 S.E.2d 584 (Ga. 1987) (“[Applying] neutral principles of property law . . . . we look to the provisions of the deeds that conveyed the two properties involved to the local church”); Bjorkman v. Protestant Episcopal Church (Ky. 1988) 759 S.W.2d 583, 586 (“[T]he application of neutral principles appears to be preferable to compulsory deference since in every case, regardless of the facts, compulsory deference would result in the triumph of the hierarchical organization”). (For more references, see the Research Note below.)

Older cases in other states have given lip service to "neutral principles" while deferring nevertheless to the church's canons. (E.g., Bishop & Diocese of Colorado v. Mote, 716 P.2d 85 (Colo. 1986).) Where a denomination's rules trump neutral laws, it is specious to speak of "neutral principles"; this approach simply pours the new wine into the old bottles. In the words of one California case: “Although the hierarchical theory has supposedly been rejected in California, it will nevertheless live on under the label of ‘neutral principles of law,’ if a church’s own rules are viewed as trumping state statutes.” (California-Nevada Annual Conf. v. St. Luke’s United Methodist Church, 121 Cal.App.4th 757, 771 (2004).)

The one principle that can be derived from the decisions on the Dennis Canon thus far is that if a court is correctly applying the "neutral principles" approach, the Dennis Canon is just one more factor in the mix of those considered when the court examines the original and any subsequent deeds, the church's charter, and so forth. And in some states, a statutory factor dominates. For example, New York courts have professed to follow "neutral principles," but thus far most of that State's decisions have been against the departing parish, and in favor of the diocese. But note: in New York, there is an express statute (Religious Corporations Law § 42-a) which recognizes the validity of the "trust" established by the Dennis Canon. (No one appears yet to have successfully challenged the statute on the ground that it violates the First Amendment by "establishing" a particular Church---The Episcopal Church---by giving its canons statutory effect, in preference to those of any other church. The same problem exists in Connecticut.) But in California, which has no such statute, the Courts of Appeal which have followed "neutral principles of law" in church property disputes have thus far declined to give any effect to the Dennis Canon, on the grounds that in California, at least, a valid trust requires the consent of the property owner as settlor, or alternatively, that if any trust was created by the enactment of the Canon, it is revocable by the property owner at any time. (The decision that is currently on appeal to the California Supreme Court rejected that "neutral principles" approach in favor of the older hierarchical doctrine.) 

[RESEARCH NOTE: For a further discussion of the current status and applicability of the neutral principles approach, see the reply brief filed on behalf of the breakaway churches in the California Supreme Court here. That brief also references some helpful annotations covering the subject, e.g., Determination of Property Rights Between Local Church and Present Church Body: the Modern View, 52 A.L.R. 3d 324 (2008); and Jeffrey B. Hassler, Note: "A Multitude of Sins? Constitutional Standards for Legal Resolution of Church Property Disputes in a Time of Escalating Intradenominational Strife" (2008) 35 Pepp.L.Rev. 399, 457-63 (Alabama, Georgia, Kentucky, Minnesota, New Hampshire, New York, Ohio, and South Dakota all follow a pure neutral principles approach; at least eleven other states have generally adopted a neutral principles approach; and thirteen others have not addressed the question). Those with a subscription to Westlaw or Lexis can also download this very interesting survey of the question.]

Thus for the case in Virginia, much will depend at the trial level on how Judge Bellows reads Jones v. Wolf, and how he decides to apply its "neutral principles of law" approach. Under the reading followed by the New Hampshire and other recent courts, the Virginia Division Statute will supply the express neutral "majoritarian rule" that the Supreme Court missed in the Georgia case. It can be followed and applied without violating the First Amendment so long as its application does not require the court to resolve any doctrinal or hierarchical disputes within TEC or the Diocese. And indeed, much of Judge Bellows' April 3 decision already points the way to such a neutral application that avoids deciding religious questions.

[UPDATE 06/27/2008: Judge Bellows has issued his opinion upholding the constitutionality of the Division Statute. The ruling leaves only for decision whether the Statute "impairs the obligation of contracts" in violation of the Contracts Clause in the United States Constitution. (The particular question to resolve will be whether any of the contractual relationships between TEC or the Diocese and its parishes, as established by church deeds, trust documents, charters, etc. and their respective constitutions and canons, were impermissibly "impaired" by the application of the Division Statute to the property ownership question---that is, whether the Statute unfairly alters such relationships in a way that is different from the effect that statutes of general application on a subject of important public interest have as a matter of course. See a discussion of the three-part test that the courts apply here. Of course, TEC and the Diocese will first have to prove that such binding trust relationships exist, i.e., that they were "embodied in some legally cognizable form", before they can proceed to claim that they are impermissibly "impaired" by the Statute.) In a separate letter ruling on five questions addressed to the litigants by the court, Judge Bellows spells out that if he finds no impairment of contracts, and if his review of the petitions filed by the eleven Virginia parishes finds that the votes conducted under the terms of the Division Statute were proper, then the actions brought by the Diocese of Virginia and The Episcopal Church to have the properties declared as held in trust for them will be moot---i.e., the case will be over (at the trial level). Judge Bellows' decision tracks the constitutional analysis of Jones v. Wolf as indicated above, and is remarkable for the patience and restraint it evinces in the face of what can only be termed outlandish arguments (bordering sometimes on sarcasm) put forward by the attorneys for TEC and the Diocese (a sample of which I quoted earlier). It would appear that TEC's strategy is simply to play out the lawsuits until the final judgments can be appealed---through the courts of Virginia and all the way to the United States Supreme Court, if it will agree to grant certiorari). By the time of any such appeal, TEC will hope to plug some of the leaks in the dike by means of canonical changes at GC 2009; the remaining leaks will not be stopped until constitutional changes adopted at GC 2009 can be ratified at GC 2012.  By that time, TEC will be a significantly reduced church, and the Diocese of Virginia, if it tags blindly along under TEC's leadership, will be a much reduced Diocese, as fewer and fewer parishes decide to support the litigation.]

Even if Judge Bellows decides that the Virginia Division Statute can be constitutionally applied to the facts of the case, he will still have to look at all of the evidence concerning the various churches' deeds, corporate charters, bylaws, canons and transactions that have occurred over the years in order to arrive at a final determination of who owns the property. No doubt, too, the loser of that decision will appeal it. We thus are in for a long haul yet, in both Virginia and California (where oral argument in the Supreme Court is yet to be scheduled). And then that will be just two out of the 100 Episcopal dioceses in America . . . .

As I noted in an earlier post, "plus ça change, plus c'est la même chose" ("The more things change, the more they stay the same"). Here, taken from another article about Church property disputes, is an apt illustration of that maxim by an anonymous Episcopal wit:
. . . The Church of England was established when the unhappily married Henry VIII wanted to marry a nubile minx named Anne Boleyn. With the advice of Archbishop Thomas Cranmer, Henry realized that starting his own church would give him the power to end his marriage—and would simultaneously make him the owner of the Roman church's wealthy abbeys and monasteries and the land they sat on in England.

"The church got started on a sexual issue, a property issue, and an authority issue," commented one weary rector. "Five hundred years later, we're arguing about sex, we're arguing about property, and we're arguing about who's in control."