Saturday, August 30, 2008

A New Declaration of Independence

The Common Cause Partnership has signaled its intent to petition, and the FCA (GAFCON) Primates' Council has declared it will give priority to the petition, for the recognition of a new North American province within the historical tradition of the Anglican Communion. This marks a watershed in the history of the Communion---a time when the forces resisting the heterodoxy rampant within The Episcopal Church and the Anglican Church of Canada can no longer be contained within the walls of endless talk erected and maintained by the so-called "Instruments of Unity."

A similar watershed was reached in times past, at a momentous point in the history of our country, and a document was created to memorialize the irrevocable resolve of its founders. That document---the Declaration of Independence---chronicled the abuses and misrule that led to the decision to throw off the King's yoke, and declared to all the world why George III had, by his actions, forfeited his exclusive franchise over the thirteen colonies.

There is no reason why a similar Declaration cannot be drafted now. In just the same way as King George's insults and abuses led our forefathers to declare themselves forever free of his polity, so the members of the Common Cause Partnership, with confidence in the FCA, and with its support, can declare themselves free of the polity of The Episcopal Church (TEC) and of the Anglican Church of Canada (ACoC).

(Some of the members of Common Cause, like the Reformed Episcopal Church, declared themselves free more than a century ago, while others, like CANA and Forward in Faith North America, have from their beginnings been free of TEC and the ACoC. However, because of their exclusive Anglican franchises in North America, TEC and ACoC have been able to date to keep these organizations from being recognized as constituent members of the Anglican Communion. Thus the chief purpose of a modern Declaration would be to state the reasons why those franchises can now no longer remain exclusive, and to lay the foundation for a claim to be independent, co-equal members of the Communion.)   

In putting together the following exercise, I was constantly surprised at how Thomas Jefferson's words could be applied with very little change (once the document had been adapted as a religious, rather than a secular, declaration) to the offenses committed by the leadership of The Episcopal Church. (ACoC readers can easily substitute their own indictments.) Not all of the links below are serious, but most are, and as a whole they bear out the fact that the time has now come to begin the separation that must inevitably occur as we head into the meeting of the House of Bishops in September, the Pittsburgh diocesan convention in October, and the diocesan conventions in Ft. Worth and Quincy in November. Accordingly, with Mr. Jefferson's classic text as a model, here is what such a contemporary "Declaration of Independence" might look like:



The unanimous Declaration of the Common Cause Partners

WHEN in the Course of human events, it becomes necessary for one people to dissolve the religious bands which have connected them with another, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these religious truths to be self-evident, that all baptized Christians are equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, which is Salvation by Grace through Faith.—That to secure these rights, Churches and their Governments are instituted among Men, deriving their just powers from God and from the consent of the governed.—That whenever any Form of Church Polity becomes destructive of these ends, it is the Right of the People to alter or to abolish it; and to institute a new Church, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Salvation and Happiness. Prudence, indeed, will dictate that Churches long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such a Church, and to provide new Guards for their future security.—Such has been the patient sufferance of these who are now united as Common Cause Partners; and such is now the necessity which constrains them to alter their former Systems of Church Polity. The history of the present Presiding Bishop and General Convention of The Episcopal Church is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these Partners. To prove this, let Facts be submitted to a candid world.

They have refused their Assent to Resolutions affirming the basic Tenets of the Christian Faith, the most wholesome and necessary for the good of the body religious.

They have forbidden their Dioceses to pass Laws of immediate and pressing importance, unless suspended in their operation till their Assent should be obtained.

They intend other Laws demanding the payment of assessments by the Dioceses, unless those Dioceses would relinquish the right of Representation in the General Convention, a right inestimable to them and formidable to tyrants only.

They have called together legislative bodies at places unusual, uncomfortable, and distant, so that the requisite majority needed for action could not attend, for the sole purpose of fatiguing the members into compliance with their measures, adopted without the required number of assents.

They have deposed Bishops and Priests repeatedly, for opposing with manly firmness their invasions on the rights of the Dioceses and Congregations.

They have obstructed the Administration of Justice, by refusing their Assent to Presentments for violation of the Church Canons.

They have made Bishops dependent on their Will alone, for the tenure of their offices, and the amount and payment of their salaries.

They have erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.

They have established among us, in times of peace, Standing Committees without the Consent of any duly noticed Diocesan Convention.

They have affected to render the Presiding Bishop independent of and superior to the Canons that embody the Discipline of the Church.

They have combined with others to subject us to a theology foreign to our tradition, and unacknowledged by our scriptures; giving their Assent to the teaching of false doctrine.

For Quartering large bodies of clergy preaching and celebrating open sin among us:

For protecting them, by unscriptural enactments, from being excluded from ordination, or from deposition once ordained:

For cutting off our bonds with all parts of the Anglican Communion:

For imposing Immorality on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury through the abuse of the "Abandonment of Communion" Canons, and through new canons proposed for adoption:

For forcing us to look beyond the Seas for adequate pastoral oversight, and for denouncing and hindering our every attempt to do so:

For abolishing the free System of Canon law in the Diocese of San Joaquin, and establishing therein an Arbitrary Church government, so as to render it at once an example and fit instrument for introducing the same absolute rule into other Dioceses:

For taking away the right freely to amend our Diocesan Constitutions, falsely construing our most valuable Canons, and thereby altering fundamentally the Forms of our Church Governments:

For suspending our own elected Ecclesiastical Authorities, and declaring themselves invested with power to legislate and execute for us in all cases whatsoever:

They have forfeited and abdicated their exclusive Anglican franchise here, by declaring us out of their Protection and waging War against us.

They have squandered our reserves on wasteful proceedings at law, laid claim to our properties, seized our bank accounts, and destroyed the Lives of our people.

They are at this time plotting new resolutions and legislation for the next General Convention, to complete the works of desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy of the Head of a Christian religion.

They have constrained our fellow Bishops to bring charges against their Will, to become the deposers of their friends and Brethren, or to be deposed themselves by their Hands.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Primate, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free Church.

Nor have We been wanting in attention to our British brethren, from whose Church we were born. We have warned them from time to time of the attempts by The Episcopal Church to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too---especially their Archbishop of Canterbury---have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in Oppression, in Faith Friends.—

WE, THEREFORE, the REPRESENTATIVES of the Common Cause Partners, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of our Churches, solemnly publish and declare, That these United Churches, Dioceses and their Members are, and of Right ought to be FREE AND INDEPENDENT of The Episcopal Church and the Anglican Church of Canada; that they are Absolved from all Allegiance to or Dependence upon the said Churches, and that all political and canonical connection between them and those Churches, is and ought to be totally dissolved; and that as Free and Independent members of the Anglican Communion, they have full Power to organize themselves as they deem fit, conclude Covenants, recognize and bestow Orders, establish Relationships in Communion, and to do all other Acts and Things which Independent Churches may of right do.—And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.


Posted by A. S. Haley at 11:14 AM 6 comments

Tuesday, August 26, 2008

The Wonderful World of Rose-Colored Spin

The Episcopal "Diocese" of San Joaquin (which is not yet an official diocese of the Episcopal Church, for reasons explained here) has put out a press release concerning a recent Stipulation approved in an Order issued by the Fresno County Superior Court in the pending litigation between TEC, Bishop Lamb, and Bishop Schofield. The press release, as most such one-sided documents are intended to do, tries to put a positive spin on what was actually a refreshingly pragmatic solution arrived at between the parties, but only after a good deal of initial resistance from the TEC side.

Before I deal with what the release says, let me give some background to the unusual situation which this Stipulation and Order address. As noted in earlier posts, the Episcopal "Diocese", Bishop Lamb, and TEC joined in a lawsuit filed in April 2008 against Bishop Schofield (whom the plaintiffs refused to title as a "bishop" in their pleadings) and various diocesan trust fund entities, who, they alleged, had absconded with buildings, properties and bank accounts which belonged to them, the plaintiffs. In a tactic designed solely to turn up the heat on the defendants, the plaintiffs amended their lawsuit in May to name as an additional defendant the brokerage firm of Merrill Lynch, with whom Bishop Schofield and the trust entities had invested their funds. In response to being sued, Merrill Lynch placed a hold, or "freeze", on some 33 different investment accounts maintained with it by the defendants (and others who were not defendants).

In describing the assets they were claiming title to in their amended complaint, Bishop Lamb and his co-plaintiffs named four accounts maintained with Merrill Lynch by individual congregations and organizations whom they had not named as defendants: St. John's in Tulare, St. John's in Porterville, St. James's Cathedral in Fresno, and the Episcopal Conference Center in Oakhurst ("ECCO"). Normal legal procedure would have required the plaintiffs first to name these parties in the action, then to give them prior notice that they would be applying to the Court for an order attaching their Merrill Lynch accounts, and thus to give them an opportunity to be heard as to why such an attachment order should not issue.

But this is The Episcopal Church of which we are speaking. Ordinary laws and rules simply do not apply to it. The details are shrouded for the time being, but the facts are that TEC had but to name Merrill Lynch in its complaint, and Merrill Lynch immediately cooperated by freezing its clients' accounts---even the accounts of those whom TEC had not named as defendants.

The consequences of Merrill Lynch's unilateral action for innocent bystanders like ECCO was disastrous. As you can see from the ECCO Budget which is attached to the Stipulation, the summer months are precisely the time when ECCO realizes its greatest revenues. But the freeze imposed by Merrill Lynch at the instigation of TEC meant that ECCO could not write a single check to pay expenses on its Merrill Lynch account---and expect that check to be honored. The Conference Center, as I stress, is an innocent bystander in all of the brouhaha. Until recently, the dispute between TEC and Bishop Schofield had not affected its operations in the slightest. Moreover, ECCO offers its facilities on an equal basis, first come first serve, to those in TEC and without. As Bishop Lamb acknowledges in the press release, its ministry is "critical." So why should the Episcopal "Diocese" of San Joaquin threaten to shut it down? Indeed---please read on.

Now, suitably informed, we may take up the "Diocese's" press release. Here starts a fisking, by way of rebuttal to the "spin" it tries to apply to the facts. (Think of this as an "annotated version", such as Harper's Magazine regularly provides to its readers.) The first thing to note is the outrageously slanted headline:

Court maintains freeze on Episcopal Diocesan accounts pending litigation

To suggest, as this headline does, that the Court was "maintaining" a freeze is to engage in sophistry for the sole purpose gaining a PR advantage. The freeze, as I said above, was unilaterally imposed by the pusillanimous Merrill Lynch in response to being sued by one of its major clients, The Episcopal Church. [UPDATE 08/27/2008: This article and this article attest to the fact that TEC maintained accounts at Merrill Lynch when its former treasurer, Ellen Cooke, managed to embezzle $2.2 million in Church funds by transferring them, in part, into her own personal account at Merrill Lynch. Whether that is still the case remains to be seen, but certainly the brokerage house's conduct in this instance supports that assumption.] To avoid the risk of offending a major client, as I suspect, Merrill Lynch chose to inconvenience what it regarded as pipsqueak investors who could not mount a meaningful counteroffensive. This would include clients like St. John's in Tulare, who was trying its level best to remain within TEC while discerning the proper path for it to tread amidst all the minefields being laid for it. Merrill Lynch, however, could not even be bothered to inquire into the view of St. John's. It was enough to take TEC's unsworn word that its account must be frozen. By such a cowardly act, Merrill Lynch spared TEC and Bishop Lamb the bother of applying to the court for an attachment order---which would have required TEC to post a bond to cover the amount of the funds being frozen. So make no mistake---given what TEC had impelled Merrill Lynch to do on its own, the parties simply sorted out what was practical under the circumstances. They looked at what would be required during the pendency of the litigation, and decided what they could accept. Rather than ordering on its own initiative that the freeze be maintained, the Court simply approved the terms on which the parties stipulated they would allow it to continue, pending the outcome of the lawsuit. (And because neither TEC nor Merrill Lynch included them in the discussions, the Stipulation does not cover four of the 33 accounts held in the names of the non-defendant St. John's Tulare, St. John's Porterville, and St. James's Fresno.)

Next, the release brags:
In April the Episcopal Diocese of San Joaquin filed a lawsuit to recover the property and the assets of the Diocese from its former bishop, John-David Schofield. As a result of this lawsuit several of the disputed investment accounts and related funds belonging to the Diocese were frozen.
As we have seen, the phrase "as a result" covers up a multitude of sins. The funds were not frozen in accordance with the procedures called for by statute, but solely because Merrill Lynch felt impelled by TEC's lawsuit to take an adverse stance against its small-fry investors. Oh, yes---that is certainly something to crow about, all right! And as we have also seen, it is not just the "accounts and related funds belonging to the Diocese" that were frozen: TEC deliberately attacked the funds of one of its own---St. John's in Tulare---as well, and sought by its allegations to halt the operations of the independent Conference Center at Oakhurst. Inexcusably, it failed to name those entities as parties to the lawsuit, but it still managed to tie up all their accounts with Merrill Lynch. (Welcome to the current world of TEC: if you're not with us, you're against us, and even if you're with us, we reserve the right to say you're against us.)

The press release continues its one-sided account:
In a hearing yesterday, the Court adopted a stipulation and ordered that these accounts may only be accessed with the consent of the Episcopal Diocese and/or by further order of the Court. Several of the affected accounts included those critical to the operations of the Evergreen Conference Center in Oakhurst (ECCO).
This is a gross oversimplification of the terms of the Stipulation, as anyone will discover who will take the trouble to follow the link and read. The fact is that the Stipulation allows the appropriate officers at ECCO to continue to write checks as they have in the past, and to pay expenses in accordance with the annual budget that ECCO adopted, without any further input, or "consent", by the "Episcopal Diocese."

The hypocrisy of the press release mounts when it claims (emphasis added):
Bishop Jerry Lamb called the continuation of ECCO’s ministry “critical.” At the direction of the Episcopal Diocesan Council, the Chancellor for the Diocese and attorneys for the Episcopal Church contacted Mr. Schofield’s attorneys to negotiate terms for interim access to funds to support camp operations, including staff salaries, daily operations and certain capital improvements. . . .
Bishop Lamb must not have communicated his concerns about the continued operation of ECCO to his attorneys very well. For the facts are these:
  1. With the ECCO accounts frozen along with all the others, TEC and Bishop Lamb were prepared to let that situation continue while TEC decided just how it would amend again its already amended complaint. The defendants had noticed demurrers to the amended complaint (which tested its legal sufficiency), which the Court had set for hearing on August 25. But rather than get a ruling from the Court that their complaint was insufficient, TEC and Bishop Lamb stipulated that they would file a second amended complaint by September 15. (Their press release says nothing about that stipulation.)
  2. The Court, in a minute order entered on July 15, had ordered the parties to "meet and confer regarding the treatment of the Merrill Lynch accounts pending litigation and to discuss proxy/joinder of necessary parties." So far from TEC/Bishop Lamb's attorneys "contacting" Bishop Schofield's attorneys, the discussions---especially regarding ECCO, whose needs were indeed "critical," as Bishop Lamb admits---were initiated by the Chancellor for Bishop Schofield's Diocese, who put forward to TEC's and Bishop Lamb's attorneys concrete and specific proposals to deal with the ECCO accounts, as well as all of the other ones pertaining to the named defendants. (Notice again how TEC persists in referring to the Rt. Rev. John-David Schofield, a duly accepted member of the House of Bishops of the Anglican Province of the Southern Cone, as "Mr. Schofield"---as though it could thereby legitimize its illegal deposition of him.)
  3. To ensure that there would be some kind of court ruling allowing ECCO to operate, Bishop Schofield's Chancellor filed with the Court on August 6, 2008 a "Request for Instructions" to Merrill Lynch, which consisted largely of the same terms eventually agreed to in the Stipulation, and which was noticed for hearing on August 25, when the parties would be in Court for the Case Management Conference, at which the Court would set the case for trial.
  4. Instead of agreeing at once to the proposed terms for the ECCO accounts, TEC and Bishop Lamb filed with the Court on August 19 their opposition to the Request for Instructions, in which they argued (among other things) that the Request was filed too late and should not be heard, that there was no urgency about ECCO (+Jerry Lamb had not issued his statement yet), and that the defendants were not the appropriate people to speak on ECCO's behalf anyway. (Given that TEC and Bishop Lamb had not seen fit to name or join ECCO in the lawsuit, one can only wonder as to who should speak for ECCO, in their view---certainly they were not doing so. As of August 19, TEC and Bishop Lamb, according to their attorneys, at any rate, were content to see ECCO shut down altogether.)
  5. The Stipulation was worked out only on the day of the hearing itself, on August 25, after Bishop Schofield and his attorneys had pointed out the hypocrisy in the position that TEC and Bishop Lamb were taking before the Court. Far from being a suggestion that originated with the latter, it was something that they agreed to only when faced with the prospect that the Court might be presented with ECCO's collapse as a consequence of their refusal to negotiate.
The one statement in the TEC/Bishop Lamb press release that is the unvarnished truth is this last, at the very end:
The Court has set a tentative date of August 24, 2009 to hear the lawsuit.
By that time, of course, TEC and Bishop Lamb will have had to demonstrate to the Court that they are legitimate parties to present a complaint against Bishop Schofield's and his diocese's departure from TEC. For all the reasons explained in my earlier posts on this subject (see the Guide to This Site; Topic: The Situation in San Joaquin), they face, in my view, an uphill battle on that score. But you will not learn that from reading their press releases.



Posted by A. S. Haley at 7:00 PM 3 comments

Miscellaneous Posts

On this page are collected the posts that do not easily fit into any of the other categories. Just as hash is the sign of a clean kitchen, so a good "Miscellany" page is the sign of a well-varied blog. A lot of the following posts are humor or parody, and maybe I will make that a category by itself some day.



























Posted by A. S. Haley at 3:03 PM 0 comments

Evidence for the Accuracy of the Bible

As an attorney, I am constantly engaged in the presentation and evaluation of evidence, particularly evidence tending to show that a given event did or did not happen. On this page are collected the posts evaluating historical and other kinds of evidence which supports various accounts of events (miraculous and otherwise) as given in the Bible.











Posted by A. S. Haley at 3:02 PM 0 comments

TED Conference Talks

The TED Conference is an annual event held (now) at Long Beach; others are held around the world. The letters of the acronym stand for Technology, Entertainment and Design. The TED website contains videos of over 300 talks from past conferences. Each Friday morning, I put one of them up for viewers of this blog to watch and to leave comments on, if they so desire. The speakers are given usually just eighteen minutes (or less) in which to tell us about an "idea worth spreading", or to unveil a new invention or project on which they have been working which promises to make a change in the world. The talks are always intriguing and thought-provoking. Here are links to the ones I have published thus far:


Friday TED Talks

Juan Enriquez (the economy and the future)

Ed Ulbrich (technology used in the Story of Benjamin Button)

Nalini Nadkarni (the ecology of canopies in the rainforest)

Tim Berners-Lee (the new Internet)

Elizabeth Gilbert (creativity)

John Wooden (the difference between winning and success)

David Merrill (mini-computer "Siftables")

Dan Ariely (the bugs in our moral code)

Willie Smits (regrowing a rain forest)

Laurie Garrett (how flu spreads)

José Antonio Abreu (inspiration through music)

Sarah Jones (acting in character)

Bruce Bueno de Mesquita (predicting what Iran will do)

Bonnie Bassler (how bacteria communicate)

Hans Rosling (world AIDS statistics)

John La Grou (SmartPlugs for safer homes)

Richard St. John (Eight Keys to Success)

Al Seckel (Our crossed visual circuitry)

Gever Tulley (Teaching kids dangerously)

Kary Mullis (hunting for a molecular tag to awake immune reactions)

Karen Armstrong (the proper goal for religion)

Nina Jablonski (the science of skin color)

Alain de Botton (contrasting success and failure)

Michael Pritchard (making any water drinkable)

Emmanuel Jal (the redemption of a war child)

Elaine Morgan (the aquatic ape hypothesis)

Eric Giler (wireless electricity)

Cary Fowler (world seed bank)

JoAnn Kuchera-Morin (the Amazing AlloSphere)

Willard Wigan (incredible micro-sculptures)

Taryn Simon (photographs of hidden things)

Oliver Sacks (Charles Bonnet Syndrome)

Rory Sutherland (the perception of value)

Itay Talgam (melding an orchestra without words)

Bjarke Ingels (transformative architecture)

Ian Goldin (what the world will be like in 2030)

Hans Rosling (datasets vs. mindsets)

Jonathan Haidt (the moral roots of social conflict)

Magnus Larsson (turning dunes into architecture)

Carolyn Porco (Cassini mission to Saturn)

John Lloyd (the humor of the invisible)

Jonathan Zittrain (what makes the Internet work)





Other TED Talks

Posted by A. S. Haley at 3:02 PM 0 comments

Love and Marriage

Collected on this page are the posts I have put up about the issue of same-sex marriages, both from a secular and a religious point of view. As a California attorney, I have taken a special interest in the issues surrounding the Supreme Court's rulings and Proposition 8, passed in November 2008, which added the following fourteen words as section 7.5 of article I of the California Constitution:

Only marriage between a man and a woman is valid or recognized in California.

Just as I contend that gay-rights activists have gone down the wrong path when they argue that gays and lesbians have an "equal right" to be consecrated bishops in the Church, so do I demonstrate in the first few posts below how it is a mistake to speak of a "right to marry". Other posts deal with the Biblical arguments relating to marriage.

Love and Marriage

The Church of Enablers





Posted by A. S. Haley at 3:02 PM 0 comments

Science and Religion

During high school and my first two years of college, I planned to become a theoretical physicist, and studied a lot of math and science. My lifelong interest in religion has also nourished those interests; the intersections of science and religion continually fascinate me. The posts on this page, however, are the ones that take me the longest to research and assemble; that is why they are so few and far between. In particular, I plan a number of additional posts on the book The Physics of Christianity by Professor Frank Tipler of Tulane University, because I believe it is such an important synthesis.

Also collected (on a separate page) are the posts in which I discuss historical and other evidence corroborating various accounts in the Bible, such as the Nativity, the Crucifixion and the Resurrection of Jesus Christ.




Posted by A. S. Haley at 3:01 PM 0 comments

Politics, Economics and the Media

This is not just a blog about religion and canon law. My interest in law spills over to issues in politics, economics, and the media, and posting on those topics sometimes provides a welcome relief from the desultory task of chronicling and commenting on canon-law abuses in the Episcopal Church (USA). On this page you will find links to those posts, as well as to a series of posts dealing with the issues in the 2008 elections---some of which are still relevant.

Politics/Economy






















Election 2008






Finally: An Insider Tells off the Legislature

Holiday Fun for a Crumbling America





Posted by A. S. Haley at 3:00 PM 0 comments

Litigation and the Episcopal Church (USA)

The Legal Follies of ECUSA, Part II

On this page are collected links to all of the posts that deal with aspects of the Episcopal Church (USA) in litigation with fellow Christians. Since I practice church law, this topic is of major interest to me, and so there are quite a number of posts.

Grouped at the outset are the posts that give an overview of the current litigation. There follow links to other individual pages that collect posts on specific topics, like the Dennis Canon, and on litigation in and with specific dioceses, grouped alphabetically. Finally there is a link to the page that deals with the intrachurch disciplinary actions under the canons, and the abuses of the so-called "abandonment canons."










A Pewster's Primer for St. Patrick's Day

And Now a Word from the Bishops . . .

Fuzzy Logic and the Church We Know (II): "Stealing" the Property








Posted by A. S. Haley at 2:59 PM 0 comments

Litigation - the Diocese of Virginia

Like the dioceses in New York, the dioceses in Virginia operate under a special statute that affects the outcome of any litigation with their parishes. The so-called "Division Statute", section 57-9 (a) of the Virginia Code, provides:
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.
Eleven parishes in the Diocese of Virginia held votes in 2006 pursuant to this section, and the tally was overwhelmingly in favor of leaving ECUSA in each instance. They entered into a protocol with the Diocese, pursuant to which they would file the results of the elections with the Circuit Court as required by the statute, but would not take further steps to leave pending negotiations with the diocese for a settlement with regard to their respective properties.

Once again, as in Pittsburgh, the Presiding Bishop and Primate of ECUSA took matters into her own hands---because, as she later admitted in her deposition, she could not agree to allow the parishes to "go into competition" with the Episcopal Church (USA). She instructed the Bishop of Virginia, the Rt. Rev. Peter James Lee, to file responses to the petitions in order to contest them in court, and she had her own Chancellor file separate suits against the eleven parishes.

All of the cases were consolidated in one action in Fairfax County Circuit Court, under the Hon. Randy Bellows. In a series of very readable and illuminating decisions, he found that the parishes had each met all of the statutory requirements, and rejected all of ECUSA's and the Diocese's constitutional arguments against the Division Statute. The Diocese and ECUSA have now asked the Virginia Supreme Court to review his final judgment in the case. You can read more detail about his decisions, and about the background of the litigation, in these posts:

Posted by A. S. Haley at 2:58 PM 0 comments

The Abandonment Canons

The Legal Follies of ECUSA, Part IV

Since its earliest years, the Episcopal Church (USA) has had a canon dealing with the defrocking, called "degradation", of priests for violations of morals and discipline. In 1815 the canon was used to "degrade" a priest who had left PECUSA (as it was then called, with the "P" standing for "Protestant") to form his own church. Not until 1867, however, was PECUSA faced with the departure of a bishop to join another church, when Bishop Ives of North Carolina became a Roman Catholic. As a result, the Church enacted the first canon dealing with "abandonment of communion" by a bishop. By then the remedy had changed from "degradation" to "deposition", but the process in each case did not require a trial, because the priest or bishop in question left no doubt about his intentions by joining another church. Trials instead were used for cases of disciplinary violations which involved disputed issues of fact.

The current canon for the deposition of a bishop for "abandonment of communion" reads as follows:

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 Canon for the deposition of a priest for abandonment (Canon IV.10) is very similar, except the period of inhibition during which the priest is allowed to recant, if he will, is extended to six months rather than two. The inhibition is ordered by the Bishop of the Diocese to which the priest belongs, on the certification of charges of abandonment by the Standing Committee.

These two canons have seen much more use in the last seven years than ever before in the history of the Church. A recent report (see pp. 19-27) documents that the bishops of the church have deposed more than ninety priests under Canon IV.10, while the Presiding Bishop herself has signed certificates of deposition for three bishops, and has certified the "renunciation of orders" by six more. And with the recent "deposition" of 61 additional clergy in San Joaquin, plus the impending threat of another 72 in Fort Worth, that total will more than double.

The numbers reflect that the abandonment canons are being grossly misused in ways that were never intended by their drafters. Bishops and priests are deposed for "abandonment" even if the so-called act of abandonment consists of joining another church that is in communion with ECUSA. (See the language in section 1 of Canon IV.9 above, which defines abandonment as the "formal admission into any religious body not in communion with [ECUSA]".)

The following posts document the full history of these canons, chronicle the sorry history of their abuse by the current leadership of ECUSA, and speak to the impossible paradoxes that have come into being as a result:


On the "Abandonment of Communion" Canons












Posted by A. S. Haley at 2:58 PM 0 comments

Litigation - the Diocese of Tennessee

Sadly, as the Episcopal Church (USA) continues its policy of suing every departing parish and diocese, I have to keep expanding the pages in my ECUSA litigation coverage. For now, this is the newest such page, involving the Diocese of Tennessee; I am sure it will not be the last. For some time now, it was believed that this Diocese, whose Bishop John C. Bauerschmidt counts himself among the Communion Partner bishops, would be able to follow the example of the Diocese of Central Florida, and work out an amicable resolution with the parishes that chose to leave it. Now we see that such will not be the case.

The situation of St. Andrew's parish in Nashville is unique in certain respects. For one thing, it proceeded to amend its Articles of Association under Tennessee law to remove all statements of accession to diocesan and national constitutions and canons before the adoption of the Dennis Canon in 1979. In this respect, its case parallels that of All Saints Waccamaw in South Carolina, where that State's Supreme Court recently held that amendments to its governing documents which conformed to State law were valid, and superseded the effect of any national or diocesan canons which contained no provision expressly restricting or limiting such amendments.

I will use the series of posts linked below to trace the aspects of a lawsuit based on the Dennis Canon against a church which did everything it could not to be subject to its enactment. After all, in New York and California, the courts chided the parishes for waiting twenty or more years before raising any objections to the canon. Now we have a case of a parish that did exactly what those courts said was the proper way to prevent its application to a parish even before the canon went into effect. Thus we shall see whether the courts mean what they say, or are just (as they often do) throwing out meaningless makeweight arguments to buttress the outcome they have been predisposed to favor.










Posted by A. S. Haley at 2:57 PM 0 comments

Litigation - the Diocese of South Carolina

For more than ten years, the Diocese of South Carolina has been home to the longest-running lawsuit involving an attempt to apply the Dennis Canon to a withdrawing parish. The lawsuit was actually begun by the parish, All Saints Parish, Waccamaw, in 2000 after the Diocese recorded a notice that it and ECUSA had a trust interest in its property, by virtue of the passage of the Dennis Canon in 1979. Here is what I wrote about the background to the suit in this earlier post:

The earliest (and, I would say, the only genuine) instance of a parish starting a lawsuit was in 2000, after a dispute arose between All Saints Parish, Pawley's Island, SC, the Diocese of South Carolina, and TEC in connection with the formation of the Anglican Mission in America. The Rev. Canon Charles Murphy, who had been rector of All Saints for over twenty years, was consecrated as an AMiA bishop in Singapore along with the Rev. John Rodgers. Bishop Edward Salmon, the diocesan of South Carolina, issued a pastoral letter expressing the canonical difficulties which the consecration created. Although Canon Murphy had announced before his consecration his intentions to remain at All Saints, alarm bells went off in the diocesan chancellor's office when it was subsequently learned that All Saints had ordered a title report on its property. This raised concerns because of what had happened earlier in Morehead City, North Carolina . . . . There St. Andrew's parish had conveyed its property to an AMiA entity without securing permission beforehand from either the Bishop or the Standing Committee as required by the applicable canons, and the deed had been recorded without any difficulty. As he explains in this letter to the members of All Saints, Bishop Salmon received advice from his chancellor that he should record with the local Register of Deeds a notice of what the Episcopal Church's canons provided with respect to conveyances of parish property. The parish considered this action as putting a cloud on their title (which they contended was in an 18th-century trust; see below), but as Bishop Salmon explains, since they were a parish in the Episcopal Church, it was the other way around: "If the permission of the Bishop and the Standing Committee are not given [to the conveyance], the title is clouded." In any event, All Saints (even though it had not yet voted to leave the Episcopal Church) brought an action to remove what it saw as a cloud on its property, and named as defendants the Diocese of South Carolina and The Episcopal Church. The latter filed counterclaims seeking to establish that the church property was held in trust for the Diocese and for TEC.

In 2003, a majority of the parish voted to leave the Diocese and affiliate with AMiA. Bishop Salmon appointed a new vestry for the parish that remained, and following a successful appeal from an initially adverse decision that vestry, joined by Bishop Salmon, the Diocese and TEC itself, filed in 2005 a second lawsuit against the vestry it replaced, seeking their ejectment from and the possession of the 60-acre church property. The two lawsuits (one from 2000 and the other from 2005) were consolidated, and tried to a jury. In April 2007, the trial court took the case away from the jury, saying that the legal issues involved were too complex, and needed to be resolved by the court, on the evidence presented to the jury. The judge handed down a lengthy and complex ruling granting judgment in part to both sides, but leaving ultimate ownership to be decided by the probate court.

That court will have some very knotty issues to untangle, as the title to the property was originally held by a charitable trust established under a 1745 will, in favor of "the Church of England". The original parish argues that since it has occupied the property continuously since the trust was established, it is now the beneficiary of that trust, which it contends is still valid. (It uses that argument to get around the Dennis Canon, contending that the earlier trust, established before there even was an Episcopal Church, controls.) The only problem is that the trustees stopped functioning as such centuries ago: the court named "John Doe" trustees to represent the unknown common-law heirs of the two original trustees named in 1745. Those "John Doe" trustees have aligned themselves with the original parish---not surprisingly, since both groups want the trust to continue to function and hold the property. The Diocese and the surviving TEC parish, on the other hand, maintain that the trust has long since merged into the identity of the parish, and that as the only hierarchically approved entity belonging to the successor to the Church of England in the United States, it now owns the property. As I mentioned, the trial court's ruling is now on appeal, and these ownership questions will probably not be sorted out until after the appellate court has weighed in on the other issues. Talk about a complex case! [A hat-tip to the ever-reliable Rev. Canon Kendall Harmon, with his personal knowledge of the scene, for helping me to sort out the strands.]
A complex case, indeed. But now the Supreme Court of South Carolina has issued its very clear and easy to follow opinion resolving the matter, by declaring that no trust could be created by the Dennis Canon (or its Diocesan counterpart) alone in South Carolina, because the law of that State requires that any trust be created only in a writing signed by the owner of the property being placed in trust. The Court also resolved the issue of the battling vestries by holding that the original All Saints vestry had acted fully within South Carolina law by amending its Parish Articles to remove the language which made the Parish subject to the Diocese of South Carolina. In doing so, the Court rejected the Diocese's argument that the vestry members became disqualified to hold their positions as a result of the vote, and pointed out that there was no restriction of any kind on the power of the Parish to amend its Articles, or any kind of requirement that an amendment must receive approval from the Diocese before it could take effect.

My other separate posts on this Diocese, the first of which lightly annotates the Supreme Court's decision, and the second of which discusses its reception among the Episcoleft, are linked below. It is hoped that this decision, combined with an enlightened attitude on the part of diocesan leaders in South Carolina, will result in these posts being my last posts on South Carolina.






Posted by A. S. Haley at 2:57 PM 0 comments

Litigation - the Diocese of San Joaquin

The Diocese of San Joaquin has been the pioneer in the wave of dioceses deciding to make their way apart from the autocratic path of the Episcopal Church (USA) that began under its current Primate and Presiding Bishop. The litigation strategy for which ECUSA is now notorious has been tested to the fullest here, and as a result the posts on it are the most complete analysis of that strategy which you will find on this site. If you want to understand what is happening today in all the litigation brought by the Episcopal Church (USA), you could do worse than begin here.










Posted by A. S. Haley at 2:57 PM 0 comments

Litigation - the Diocese of San Diego

There has been only one reported case from the Diocese of San Diego, where Bishop Mathes has been just as aggressive as Bishop Bruno in going after departing parishes. It involved St. John's in Fallbrook, and is analyzed in the post linked below. There are two other cases still making their way through the lower court, involving St. Anne's of Oceanside and Holy Trinity in San Diego. (You can read the complaint here, after you scroll down past the other papers.) I will have more to say about them when there is a decision.
Posted by A. S. Haley at 2:56 PM 0 comments

Litigation - the Diocese of Quincy

The little Diocese of Quincy in Illinois (with less than two dozen parishes and missions) has become the latest to vote to disaffiliate from the Episcopal Church (USA). For the time being, the dissenters are being called into a rump organization by the Presiding Bishop, who asked retired Bishop John Buchanan to assist them. The departing Diocese, currently without a Bishop, filed a pre-emptive declaratory action against ECUSA to quiet title to its assets, and ECUSA has challenged the suit's venue, saying it has to be brought in a different county of Illinois. Once the venue issue is resolved, look for ECUSA to file a cross-complaint on behalf of what it claims is the "true" diocese. I have not yet had occasion to discuss matters in Quincy; the following posts touch only briefly on the situation there. I shall post more as events unfold; meanwhile, here is a link to a recent story showing how the path sadly being followed by ECUSA in Quincy is repeating the same mistakes it made in San Joaquin, Pittsburgh and Fort Worth. Quincy's response to Bishop Buchanan's actions is quoted here.



Posted by A. S. Haley at 2:55 PM 0 comments

Litigation - The Diocese of Pittsburgh

Perhaps nowhere else in the United States has the battle over turf and assets been fought for as long as it has within the Diocese of Pittsburgh, led by the Rt. Rev. Robert W. Duncan. Immediately after the ratification of Bishop Robinson's election at GC 2003, a progressive parish and its progressive minister (Calvary Church, led by the Rev. ), who disagreed with Bishop Duncan's vote against the ratification, and who believed that Bishop Duncan was preparing actions that would remove the diocese from the larger Church, filed suit against the Bishop in the Pennsylvania Court of Common Pleas in Pittsburgh. The suit ostensibly settled in October 2005 with an agreement that the diocese would keep all its assets intact, and would not allow individual parishes to depart from the diocese without paying fair market value for their property. Nevertheless, the new Presiding Bishop of ECUSA changed all that when she gave ear in 2007 to Calvary's further complaints about Bishop Duncan. (Calvary made the same charges in court, claiming that Bishop Duncan had violated the terms of the stipulation.) She referred Calvary's charges to the Title IV Review Committee, which duly rubber-stamped them and passed them back to her with a certification that they amounted to "abandonment of communion". However, because Bishop Duncan had not yet done anything overt towards leaving the Church, she could not get the consent of the three senior bishops in ECUSA to his inhibition.

Never one to let a thing like the language of the canons stop her, the Presiding Bishop announced she would bring a resolution to depose Bishop Duncan for "abandonment of communion" before the next meeting of the House of Bishops, in September 2008. (The Canon clearly says that only bishops who have first been inhibited are "liable to deposition.") A divided House, in which the great majority of those present showed their inability to read or understand simple English, voted in favor of the resolution. Then the Presiding Bishop, notwithstanding the fact that there were not enough bishops present and voting to carry the resolution in accordance with the terms of the Canon, announced nonetheless that she was signing a certificate of deposition, because she had already overruled in advance of the meeting any objection to the fact that there were not enough bishops voting.

After that display of collective arrogance, there was nothing for the Diocese of Pittsburgh to do except vote to leave the Church, which it did at its annual convention in October 2008. After joining the Province of the Southern Cone, the diocese then called a special convention at which it re-elected Robert Duncan as its Bishop. Following its now standard litigation strategy in such cases, the Presiding Bishop recognized the dissenters as the "Episcopal Diocese of Pittsburgh", and in that capacity they now have asked to intervene in Calvary's lawsuit in order to claim title to all of the diocesan bank accounts and properties. And in its latest move, ECUSA itself has asked to intervene as well.

All of these maneuvers and more are detailed and chronicled in the following posts.






Posted by A. S. Haley at 2:54 PM 0 comments

Litigation - the Dioceses in New York

Episcopal Dioceses in New York enjoy the benefit of a special state statute that enacts the provisions of the Dennis Canon into State law. Section 42-a of the New York Religious Corporations Code provides (I have added the italics):

§ 42-a. Additional powers of the corporate trustees and vestry.
Notwithstanding and in addition to the provisions of section five of this chapter, and subject always to the trust in which all real and personal property is held for the Protestant Episcopal Church and the Diocese thereof in which the parish, mission or congregation is located,the vestry or trustees of any incorporated Protestant Episcopal parish or church, the trustees of every incorporated governing body of the Protestant Episcopal Church and each diocese are authorized to administer the temporalities and property, real and personal, belonging to the corporation, for the support and maintenance of the corporation and, provided it is in accordance with the discipline, rules and usages of the Protestant Episcopal Church and with the provisions of law relating thereto, for the support and maintenance of other religious, charitable, benevolent or educational objects whether or not conducted by the corporation or in connection with it or with the Protestant Episcopal Church.

Arguably, this statute violates the Establishment Clause of the First Amendment, by giving a statutory preference to trusts created by action of the legislative body of a national church without having to comply with the local Statute of Frauds. However, no successful challenge to it has yet been mounted in the New York courts. Instead, the Diocese of Rochester recently scored a victory with the Dennis Canon in New York's highest court, as described in this post:


That case in turn has had ramifications for the Church of the Good Shepherd in Binghamton, in the Diocese of Central New York, as I describe in these two posts:




In the latter post, I opined that there would be an appeal, no matter which side won. I was wrong---the Church lost the motion for summary judgment, based on the court's upholding of a Dennis Canon trust on all its property (with the help of the New York statute quoted above), but it is not going to appeal the decision. Once again, the Episcopal Church (USA) succeeds in forcing a congregation to find a new place to worship, and to leave behind an empty building which stands in mute testimony to the folly of its litigation policy.

And now the same judge has rendered a further decision which goes to the extreme length of finding that the Church of the Good Shepherd "no longer exists" for purposes of a parishioner's bequest to it:


Meanwhile, in the Diocese of Long Island, the Diocese benefited from the court's application of the Dennis Canon to prevail in a lawsuit brought against it and ECUSA by St. James Parish in Elmhurst to quiet title to the latter's property. (St. James was the first Anglican church in Elmhurst [formerly "Newtown"], chartered by King George in 1761, and had for one of its earliest rectors the Rev. Dr. Samuel Seabury, who was later elected and consecrated in Scotland as the first Episcopal bishop in America after the Revolutionary War.) The Parish has since had to vacate its historic property, and the Diocese brought in a priest-in-charge to try to build back the congregation and manage the historic campus. But the Diocese has now seen fit to pursue the Parish's attorneys to recover the amounts they received from the Parish in payment of their legal fees. (A copy of the lawsuit as filed may be downloaded here.) I analyze the claims and their probabilities of failure in the following post:




Posted by A. S. Haley at 2:53 PM 0 comments

Litigation - the Diocese of Los Angeles

The Episcopal Diocese of Los Angeles, headed by the Rt. Rev. Jon J. Bruno, has been in the forefront of litigation brought against departing parishes, in which it has been joined by the Episcopal Church (USA). These pages chronicle the progress (or lack thereof) of that litigation, in a vain attempt to show where over $2 million of diocesan and Church funds have been spent to date.



The Situation in Los Angeles/Orange County

California Court Rules Against Departing Church

California Supreme Court Announces Impending Decision in Episcopal Church Cases







Posted by A. S. Haley at 2:52 PM 0 comments

Litigation - the Diocese of Georgia

ECUSA and the Bishop of the Diocese of Georgia filed a lawsuit against the Rector, Wardens and Vestrymen of Georgia's oldest church, Christ Church in Savannah, after the latter voted unanimously to withdraw from the Diocese in 2006. The congregation ratified the vote to withdraw by an 83% majority; later, the minority parishioners and a rector appointed by the bishop requested, and were granted, leave to intervene on the side of the plaintiffs.

Both sides subsequently moved for summary judgment, arguing that the material facts were not in dispute. However, the facts about how ECUSA itself was formed, and about the nature of the relationship between ECUSA, its dioceses and parishes were in dispute, as matters turned out. Instead of denying both motions and setting the case down for trial on the disputed issues, the Judge of the Superior Court in the Eastern District, the Hon. Michael Karpf, accepted the version of the facts offered by the plaintiffs and their experts, and gave summary judgment in their favor. The defendants have announced they will appeal the judgment, so the post below, which analyzes the faults in Judge Karpf's opinion, will undoubtedly not be the last.



Striking out in Georgia
Posted by A. S. Haley at 2:51 PM 0 comments

Litigation - the Diocese of Ft. Worth

The Episcopal Diocese of Ft. Worth, which is incorporated under Texas law, voted at its annual convention in November 2008 to amend its Constitution and bylaws to make the corporation no longer a diocese in ECUSA. Predictably, ECUSA's Presiding Bishop and her Chancellor have moved in to organize the dissenters into a body that they think can serve as a vehicle for a lawsuit against the departed diocese to assert claims to its bank accounts and property. The moves in that game, and what is wrong with ECUSA's strategy, are detailed in the posts below.



The Situation in Ft. Worth











Posted by A. S. Haley at 2:51 PM 0 comments

Litigation - the Diocese of Colorado

There is only one lawsuit pending currently that involves the Episcopal Church (USA) in the Diocese of Colorado, but it is a substantial one, involving the beautiful and valuable property of Grace Church and St. Stephens Church in Colorado Springs. The trial court recently issued its decision awarding the property to the congregation that chose to remain with ECUSA, and I have put up this post about the decision:


"One More Such Victory . . .
Posted by A. S. Haley at 2:50 PM 0 comments

The Dennis Canon

The Legal Follies of ECUSA, Part III

Canon I.7.4 of the Episcopal Church (USA) is referred to commonly as "the Dennis Canon", after the name of its draftsman, the Rt. Rev. Walter D. Dennis, former Suffragan Bishop of New York, a lawyer and civil rights activist who proposed its adoption as a canon at General Convention 1979. Together with its companion section (Canon I.7.5), it reads as follows:

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.
The language purports to enact a trust affecting all real property owned by any parish or mission anywhere in the Church, without having to go through any other formalities of creating local trusts of real and personal property in each case. The Church's insistence that the Dennis Canon is alone sufficient to create a valid trust has produced a tremendous amount of litigation and suffering, unworthy of a body that claims to be a Christian Church. Since in virtually all cases the national Church has contributed nothing towards the cost of the property originally, or for its upkeep and maintenance throughout the years, the Church's position that it can swoop down and enforce the trust should any parish decide to leave amounts to a gratuitous confiscation that belies the real purpose of the Canon, which is to discourage parishes from leaving. It has not worked. The name of Bishop Dennis is associated with all that is wrong with the current Church, like it or not, and it is a sad legacy to have left behind.

The posts collected on this page go into the details of all the litigation over the Dennis Canon, and why it is such a problem for all parties concerned. As an introduction to the legal issues involved, there is first a series of posts on the law of church property. Then come the posts on the Dennis Canon itself, including some practical suggestions about resolving disputes over its interpretation without having to resort to court.


O Tempora! The Law of Church Property



Part III

Posted by A. S. Haley at 2:50 PM 0 comments

ECUSA's Presiding Bishop Defi(l)es the Canons

The Legal Follies of ECUSA, Part I

The posts in this category chronicle the manifold abuses and violations of the Constitution and Canons committed by ECUSA's current Presiding Bishop. They are presented below in chronological order from the earliest to the latest, and make for a sorry tale. I take no pleasure whatsoever in adding new posts to the list, but then the Presiding Bishop shows no indication of altering her uncanonical ways. At the end I provide a link to the Part IV of this Series, on the Abandonment Canons, because the Presiding Bishop has made a special practice of defiling them.






























Posted by A. S. Haley at 2:38 PM 0 comments

The Consequences of General Convention 2003

At its General Convention held in Minneapolis, Minnesota from July 30 to August 8, 2003, the Episcopal Church (USA) defied the consensus within the Anglican Communion, reached painfully but definitively at the Lambeth Conference of 1998, and embodied in Resolution 1.10 from that Conference, and ratified the election of an openly active homoosexual to the positio9n of Bishop of the Diocese of New Hampshire. Doubtless the delegates who voted to confirm his election believed that they were in the vanguard of social justice, and were setting a worthy example for others in the Communion to emulate.

Time has thus far proved that belief sadly misguided. The consequences of that one decision, as further ratified and confirmed by the bishops of the Church who went ahead with his consecration ceremony in November 2003, defying a collective warning from the Primates of the Anglican Communion, continue to ripple through the Anglican world. The bishop himself has become nothing more than a poster boy for the gay rights movement, and is still not recognized by the Archbishop of Canterbury as a fellow bishop in the Anglican Communion. On that score, and that score alone, the rash gesture by ECUSA failed to bring the rest of the Communion round to its point of view.

The gay rights movement continues to push forward within America in general, and within ECUSA in particular. In consequence of its decision in 2003, the Church has suffered declining membership, dissension and outright conflict within its ranks, as parishes by the hundreds, and now four entire dioceses, have voted their disapproval by leaving. The Church has added fuel to the flames by vigorously pursuing, under its no-compromise Presiding Bishop, a policy of suing those entities that depart for their bank accounts and property, in another misguided attempt to assert dominion over assets whose value to ECUSA consists for the most part the cash they could bring into its coffers to finance yet more litigation.

On this page are collected posts about many of the sad consequences resulting from that fateful step taken in August 2003. I wish, for the sake of the Church in which I grew up, that they did not have to be chronicled, but someone who is still an Episcopalian needs to keep track, so here they are.



The Consequences of General Convention 2003















Posted by A. S. Haley at 2:34 PM 0 comments

The Episcopal Church (USA) Pages

On these pages you will find posts about the Episcopal Church in the United States of America (ECUSA). This was the title it took more recently, after dropping the word "Protestant" from its name (PECUSA); it began its formal existence under that title in 1789, the same year the United States did. (Some of the founding fathers---John Jay of New York, for instance---helped to draft its first Constitution.) Lately, the Church has tried to make itself less visible as a creation of just the United States, by dropping the phrase "in the United States of America" from its name (it rationalizes that action by pointing to its member dioceses that stretch from Taiwan to Europe). However, ECUSA is so thoroughly a product of American law and politics that this curmudgeon, at any rate, refuses to let it get away with such a masquerade. ECUSA it is, and ECUSA it shall remain on this site.

The posts are divided into four groups: those on ECUSA generally, those specifically about its current (76th) General Convention, those setting out its history, and those discussing the niceties of its governing structure, or "polity".



The Episcopal Church (USA) - General












The Episcopal Church (USA) - Budget and Finances


The Episcopal Church (USA) - History
The Polity of the Episcopal Church (USA)









The Episcopal Church (USA) - Scripture and Interpretation

On "the Faith Once Delivered to the Saints"

What Is So Hard About Reading Scripture?

Jesus and the Sinful Tax Collectors

A Classic Restated: "Christianity and Liberalism"

Does the Truth Change with Time?


The 76th General Convention (2009)
Posted by A. S. Haley at 2:34 PM 0 comments

The Lambeth Pages

Every ten years or so since 1867, the Archbishop of Canterbury has convened a conference of all of the active bishops in the Anglican Communion. Historically, the bishops gathered at the Archbishop's palace at Lambeth outside of London, hence the name "Lambeth Conference".

Gathered on this page you will find assorted posts about these conferences, beginning with the first and continuing down to the one held last summer (at the University of Kent, due to the number of bishops attending).


The Lambeth Conferences








The First Lambeth Conference (1867)






Lambeth Conference 2008











Posted by A. S. Haley at 2:33 PM 0 comments

Anglican Communion - Current Issues

Posts thus far on current issues and topics affecting the Anglican Communion as a whole, including the Instruments of Unity, Global Anglican Future Conference (GAFCON), actions by the Episcopal Church (USA), and more.




ECUSA and the Anglican Covenant - Who Decides?





Posted by A. S. Haley at 2:32 PM 0 comments

A Guide to This Site

Most Recent Post

[Note: this may lag a few days behind the main site.]

Date: March 4, 2009





Category/ies: Love and Marriage


A Guide to the Site by Categories

This is not a Weblog for keeping track of current events in the Anglican Communion---the sites linked at the right do that far better than I can. Instead, what I do here is to relate some of what is happening in the Communion today to its history, traditions and law (canon law and church constitutions). This page will guide you through the posts that are relevant to a specific topic.

The topics I have addressed thus far are as follows:

The Anglican Communion - Current Issues


















The Lambeth Conferences






The First Lambeth Conference (1867)





Lambeth Conference 2008







Windsor Continuation Group: Let's Indaba!


The Episcopal Church - General







The Episcopal Church - History





The Polity of The Episcopal Church














The Consequences of General Convention 2003










TEC's Presiding Bishop Defi(l)es the Canons



















The Dennis Canon

















The Situation in Ft. Worth






The Situation in Los Angeles/Orange County

California Supreme Court Announces Impending Decision in Episcopal Church Cases




The Situation in New York








The Situation in Virginia






On the "Abandonment of Communion" Canons








The Sauls Memorandum Refuted (Second Part)






Election 2008






Love and Marriage

The Church of Enablers


Politics/Economy







Friday Morning TED Talks

Juan Enriquez

Ed Ulbrich




Miscellaneous (Mostly Humorous)












Posted by A. S. Haley at 2:31 PM 0 comments

The Church and the Culture Wars

The Church Catholic -- including its principal branches, the Roman Catholic Church, the Eastern Orthodox Church, the Anglican Communion, and others -- is in a fight for its life, meaning it is in a struggle to the finish. This is a struggle that has been going on since before its founding. It was evidenced in the temptations offered to Jesus, in the fight between the early Church and the various heresies that threatened to engulf it, in the temporal entanglements of the Church after it became a State religion, and in the battles following the splits in 1054 and in the sixteenth century.

I am interested in all these historical facets of the struggle. But I am particularly interested in how the struggle is taking shape today, in the form popularly referred to as "the culture wars." At issue is whether or not the Church can keep her eye on her main raison d'être: to reflect the revealed truth of the Word of God. This revealed truth is eternal and unchanging. Mankind's perception and reception of it, however, is fallible, and the Church is not exempted from such fallibility.

On this page are collected the various posts in which I offer my own modest contributions to this tremendously important topic.


The Ghost of Bishop Pike

On "the Faith Once Delivered to the Saints"

We Have a Problem . . .

Dr. Williams, Sharia Law, and GAFCON

The Most Important Teaching of Lambeth Thus Far

The Teaching Continues

On the Gulf that Divides Us

Feudal Morality? Or Blind Perversity?

On the Gulf that Separates Us

In the Land of the Canon-Eaters

Bart Ehrman, Meet Frank Tipler

The Church of Enablers

The Unvarnished Truth

A Classic Restated: "Christianity and Liberalism"

Representing Jesus at GC 2009

Jesus' Warning to Those Perpetuating False Teaching

Start Them Early: Religion for Kids

The Future Before Your Eyes

Fuzzy Logic and the Church We Know (I)

The New Colonialism: Ganging up on Nigeria

The 2009 Church Follies (I)

The 2009 Church Follies (II): How to Feel Good Spending $1,300,000 per Day

Episcopal Church "Rescue" Announced

Fuzzy Logic and the Left

A Tale of Three Hyperlinks

Playing Back the Resurrection

The Oxymoron of Church Politics

From the Outside in, or Vice Versa?

How to Be Irrelevant - Just Watch

A House Divided Against Itself

The Dog in the Manger

The 2009 Church Follies (III): Veni, sancte spiritus

Hollywood Goes Episcopal: Over to You, Greg!

Ten Theses contra General Convention

Night and Day

Gordon Brown at TED: Political Heresy Equal to +Schori's

Presiding Bishop Defies General Convention

A Modest Proposal for Going Forward

Culture Wars: Dispatches from Behind the Lines

Dispatches from Behind the Lines (Continued)

Does the Truth Change with Time?






Posted by A. S. Haley at 2:30 PM 0 comments

Monday, August 25, 2008

A Murder of Crows

As readers of this site are aware, there is an entity out there which claims to be "the [Episcopal] Diocese of San Joaquin, a California unincorporated association"---it is even one of the plaintiffs in the lawsuit currently pending in Fresno County Superior Court. It alleges that it "is one of the [Episcopal] Church’s 111 dioceses, and encompasses the territory of 14 California counties, including Fresno County."

How did this come to be? When was this entity formed, and when did it become a Diocese of The Episcopal Church?

For there is also out there another entity, which used to be the [Episcopal] Diocese of San Joaquin, but which in December 2007 amended its Constitution and Canons to become a constituent member of the Anglican Communion, instead of The Episcopal Church. Let us compare and contrast these two entities.

The [Anglican] Diocese of San Joaquin:
  1. Is headquartered in Fresno, California.
  2. Has as its Bishop the Rt. Rev. John-David Schofield.
  3. Has forty parishes and missions in its territory.
  4. Recognizes the Most Rev. Gregory Venables as its primate.
  5. Spreads over 14 California counties, in the same area it occupied when it was part of TEC.
  6. Is self-funding through parish contributions.
  7. Began as a Missionary Diocese of the Protestant Episcopal Church of the United States of America ("PECUSA") in 1911.
  8. Was recognized as a full diocese of PECUSA in 1961, when it became fiscally independent of General Convention.
  9. Will hold its Annual Convention at Fresno on October 24-25, 2008, per its Constitution (download the August issue of the Star and see official notice on page 10).
The [Episcopal] Diocese of San Joaquin:
  1. Is headquartered in Stockton, California.
  2. Has a Provisional Bishop, the Rt. Rev. Jerry A. Lamb.
  3. Has eighteen parishes and missions listed in its territory, of which only eight were registered and actually in existence prior to December 8, 2007. At least six are the splinter minorities of congregations which voted to leave with Bishop Schofield, and another three are new start-ups; they all meet in rented facilities or private homes.
  4. Recognizes the Most Rev. Katharine Jefferts Schori as its primate.
  5. Spreads over 14 California counties, in the same area occupied by the other entity.
  6. Is financially dependent on The Episcopal Church.
  7. Began its existence on March 29, 2008 in a "Special Convention".
  8. Has not been officially recognized by General Convention (which does not meet until June 2009), but only by the Presiding Bishop and the Executive Council of TEC.
  9. Will hold its Annual Convention at Hanford, California from October 24-26, 2008.
These obviously cannot be one and the same entities. Given that indisputable fact, we have to ask: forgetting for a moment the viewpoint of Church canon law, what is the status of each of these entities under California secular law?
  1. They are both unincorporated associations, meaning that they are both "an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not." (Section 18035 [a], Corp. Code.)
  2. One organization began its existence under California law in 1911; the other began its existence on March 29, 2008.
  3. Yet both organizations claim to be holding their "49th Annual Convention" on October 24-25, 2008. How can this be?
The answer is that, under California law, it cannot. The (Episcopal) "Diocese of San Joaquin" did not exist as an entity headquartered in Stockton, with its eighteen parishes and missions, before March 29, 2008. Even if it claims to be the canonical successor to the Diocese that had existed since 1911, the fact remains that it is a successor, and not a continuation, of that entity. The distinction is inescapable, and it is vital.

Here is where the distinction becomes crucial. A corporation sole is a special creature under California law which is recognized for the purpose of administering and holding title to church property, among other things. As a corporation, it can sue and be sued, and its liability is limited to the extent of its assets. It has only one officer, one director, and one shareholder, and they are all the same individual. (It's something like a secular model of what the Trinity is to the Church.) That person, called "the incumbent," is exclusively named and selected by the unincorporated religious association which authorizes the creation of the corporation sole associated with it. The articles of the corporation sole must spell out how a successor incumbent is to be selected and named by the religious association.

Thus, when it became a missionary diocese of PECUSA in 1911, the Diocese of San Joaquin authorized the formation of "The Protestant Episcopal Bishop of San Joaquin, a corporation sole" under California law. After San Joaquin became a self-sufficient diocese, the Rt. Rev. Victor Rivera, formerly rector of St. Paul's in Visalia, became the incumbent of that corporation sole in 1968. When he stepped down as diocesan, his successor, the Rt. Rev. John-David Schofield, who had previously been the rector at St. Columba's, in Inverness, became the incumbent. When he and the diocese left The Episcopal Church following the December 2007 vote, changes were recorded to the name of the corporation sole (from "Protestant Episcopal" to "Anglican"), as well as to the article which spelled out how +John-David's successor would be chosen.

To my knowledge, there is still only one corporation sole that is associated with either of the entities which call themselves "the Diocese of San Joaquin." That is because, as I have explained in a previous post, Presiding Bishop Katharine Jefferts Schori and her Chancellor, David Booth Beers, are playing a high-stakes game in San Joaquin. They are taking the position in court that the changes which the (Anglican) Diocese of San Joaquin made to its Constitution and Canons in December 2007 were unauthorized and hence ultra vires---"beyond the powers" of that entity, as a diocese of the Episcopal Church, to make. They have staked their all on the success of that argument. And pursuant to that position, they filed with the Secretary of State in April of this year a paper claiming to have amended the articles of the corporation sole to change its name back to "Protestant Episcopal", and to restore the succession provisions to what they had been before. The Secretary of State accepted the documents for recording since they were in the proper form, but their validity will be one of the major issues in the lawsuit now pending in Fresno County Superior Court.

If that argument is successful in the courts, then the entity which is now the (Anglican) Diocese of San Joaquin will have to organize itself as a new unincorporated association under California law, and authorize the filing of papers for a new corporation sole, with the Rt. Rev. John-David Schofield as its incumbent. That might be a temporary inconvenience, but it certainly would not prevent either Bishop Schofield or his diocese from continuing to function.

But if the argument is unsuccessful, look at what a catastrophe it would be for The Episcopal Church, Bishop Lamb, and his "diocese." Now it would be they who would have to organize as a new unincorporated association, and authorize the formation of a new corporation sole. Then, since it was a new entity, it would have to apply to TEC for temporary status as a missionary diocese, until General Convention could act (if it so chose) to make it a full diocese again. And here is where TEC's Constitution and Canons come into play.

Article VI, Section 1 of TEC's Constitution provides (with my emphasis added):
The House of Bishops may establish a Mission in any area not included within the boundaries of any Diocese of this Church or of any Church in communion with this Church . . .
So this is where TEC will have to face facts. It claims still to "be in communion with" the Anglican Province of the Southern Cone---at least, GC 2006 never adopted any resolution to the contrary, and that was the status quo ante. So in order to form a new missionary diocese within the same area as the (Anglican) Diocese of San Joaquin, TEC's General Convention will first have to adopt a resolution declaring TEC to be no longer in communion with the Province of the Southern Cone.

But even if it passed such a resolution, GC 2009 would also have to amend TEC's Canon I.11.3, which provides (again, with my emphasis added):
An Area not previously organized as a Diocese, and not under the permanent jurisdiction of a Bishop in communion with this Church, may, upon application for admission, in accordance with the procedures of Article V, Section 1, be admitted as a Diocese, and may be accepted as a Missionary Diocese within the meaning of Sec. 1 of this Canon.
Since the area of the "new" diocese is the same as that of the former diocese, this Canon prohibits outright its acceptance as either a Diocese or a Missionary Diocese of the Church. There is no getting around it (unless you are the current TEC leadership, and then you simply ignore what the canons say if you need to do something different).

That is why I say that Bishop Lamb and Presiding Bishop Jefferts Schori are playing a very high-stakes game in San Joaquin. The membership of TEC might well start asking, "By what rights are they staking so much on all this?" We cannot tell how much of a fiscal impact their decision is having on Bishop Lamb's mission in San Joaquin, but it has to be substantial. Certainly the decision to stake everything on litigation is having an impact on the mission of the (Anglican) Diocese of San Joaquin, which has published its proposed budget to be considered at the upcoming annual convention in October. (You can find it by downloading the August issue of the Star here, and scrolling down to page 11.) The items for Mission Support and Development, for example, have been reduced from a total of $125,900 in 2008 to $88,000 in 2009; Youth Ministry has been cut back from $97,100 to $57,000, and so forth. Similar impacts can be seen in all other budget categories. If this is the measure of the impact that TEC's litigation strategy has had on Bishop Schofield's diocese, what is the impact it has had on Bishop Lamb's? And what will be the further impact of Bishop Lamb's declared intent to depose so many of the clergy who have transferred to the Southern Cone along with Bishop Schofield?

Father Dan Martins has some interesting speculation on why these depositions are being rushed forward in advance of the Annual Convention called by Bishop Lamb. However, as another one of the clergy in San Joaquin has helpfully pointed out to me, any such depositions will not solve the problem of having a quorum of canonically resident clergy at the Convention. The reason is that under the canons, depositions do not follow at once, but take effect only after a period of six months. And during that six-month period, any priests inhibited will remain "canonically resident" in the diocese. Article V, section 6 of the Diocesan Constitution provides:

The Bishop, the Bishop Coadjutor, the Suffragan Bishop, the Assisting Bishop and other qualified Bishops, Presbyters, and Deacons shall each have a seat and vote in Convention, provided they have been canonically resident within the Diocese for three calendar months next before the meeting of Convention and provided they have been domiciled therein . . .
So the only qualification for having a seat and a vote at the diocesan conventions is that the clergy have been canonically and physically resident in the Diocese for at least three months; there is no additional requirement that they be in "good standing", i.e., not inhibited. Thus even if Bishop Lamb inhibits his clergy before October, it will not have any effect on the determination of a proper quorum of the clergy at the convention in Hanford in October.

Nor will anything Bishop Lamb can do solve the problem of having a quorum of lay deputies from the required number of congregations. (You can depose clergy for "abandonment," if that is how you decide to treat departure for another church in the Anglican Communion, but you cannot depose parishes.) And what such scrambling does is serve only to point out how there was no such quorum---either of clergy or of the laity---at the "Special Convention" that confirmed Bishop Lamb in the first place.

Irregularities in procedure are not just academic. There are thousands and thousands of dollars---nay, hundreds of thousands of dollars---being spent in reliance that what has been done was done right. And the irregularities are not subtle, or contrived; they fairly leap out at one. There is no consistent story to tell with the new Episcopal Diocese of San Joaquin. On the one hand, they are treating the clergy who had departed as though they were still canonically resident as of this month---five months after they would have had to be counted in determining the quorum for a valid special convention. Everyone present at the March convention signed a supposed waiver of irregularities, but the Constitutional requirement of a quorum cannot be waived.

Now money is being spent on calling an "annual convention"---the 49th, no less---which will be held on the same days as the convention taking place in Fresno. But if the Special Convention in March was not valid, then neither can the "annual" one called as a consequence of it be valid. We have a "diocese" that is not a diocese (at least, not until GC 2009 meets, passes a resolution declaring TEC no longer in communion with the Southern Cone, and amends Canon I.11.3), meeting to elect a Standing Committee that cannot stand for anything (because there is no valid diocese), and deputies to General Convention who will be sworn in by no one having authority, and who have no one they can legitimately represent. Meanwhile, the "Standing Committee" that was purportedly elected at the invalid special convention in March will pretend to act canonically in proceeding to depose those who disagree with them, and a Bishop who is not a diocesan bishop will purport to pronounce them deposed, and "certify" that fact to the Presiding Bishop and all other TEC bishops.

This is piling too much irregularity on irregularity---it is a murder of crows, a scold of jays, and a sneak of weasels, all at the same time. Just like a house of cards, the entire rickety structure will come tumbling down before long. (And this is supposed to be what a church being "guided by the Holy Spirit" looks like? Take another look.) Meanwhile, it will be the average Episcopalian pewsitters, largely clueless as to what is being done in their names, who will be asked to pony up to cover the costs of the multiple mistakes. At some point, those people are going to wake up, and vote---first with their wallets, and then with their feet.
Posted by A. S. Haley at 9:37 AM 2 comments

Thursday, August 21, 2008

Genesis Updated (The California Version)



any years later, the Lord came again unto Noah, who was now living in Southern California, and said:

“Once again, the earth has become wicked and over-populated, and I see the end of all flesh before me. Build another Ark and save two of every living thing along with a few good humans.”

He gave Noah the blueprints, saying: "You have 6 months to build the Ark before the rains commence and they will last for 40 days and 40 nights."

Six months later, the Lord looked down and saw Noah weeping in his yard - but there was no Ark.

“Noah!” the Lord roared. “I'm about to start the rain! Where is the Ark?”

“Forgive me, Lord,” begged Noah, “but things have changed. I needed a building permit. I've been arguing with the inspector about the need for a sprinkler system. My neighbours claim that I've violated the local planning regulations by building the Ark in my back yard and exceeding the height limitations. We had to appeal to the Board of Supervisors for a decision.

“Then Pacific Gas & Electric demanded payment in advance for the costs of moving power lines and other overhead obstructions, to clear the passage for the Ark's move to the sea. I told them that the sea would be coming to us, but they would hear nothing of it. Getting the wood was another problem. There's a ban in California on cutting down the kind of trees You specified in order to save the spotted owl. I tried to convince the environmentalists that I needed the wood to save the spotted owls - but no go!

“And when I started gathering the animals, PETA, an animal rights group, sued me. They insisted that I was confining wild animals against their will and violating their rights. They argued the accommodation was too restrictive, and it was cruel and inhumane to put so many animals in a confined space. Then the Environmental Protection Agency ruled that I couldn't build the Ark until I paid for an Environmental Impact Report and they held public hearings on its adequacy in addressing the mitigation measures needed to deal with the flood I told them I was preparing for in accordance with Your instructions. Among the mitigation measures they are proposing is that I pay for the raising of the major dams and levees across the state by four feet to accommodate the increased run-off which their engineers have calculated will occur. I told them that they were off by a factor of ten, but they wouldn't listen to me.

“I'm still trying to resolve a complaint with the Equal Rights Commission on how many minorities I'm supposed to hire for my work crew.

“Immigration is checking the nationality status of the people I have managed to employ, insisting that I have to run ads to find local workers before I can be allowed to use my sons, who as You know, were not born here and so do not have citizenship. I've had to apply for green cards for them, and they tell me the waiting list is seven years long.

“The labor unions also say I can't use my sons. They insist I have to hire only Union workers with Ark-building experience, and since there are none, I'm in what they call here a "Catch-22".

“To make matters worse, Customs seized all my assets, claiming I'm trying to leave the country illegally with endangered species.

“So, forgive me, Lord, but it would take at least ten years as it's going now for me to finish this Ark.”

And the Lord took pity upon Noah. The skies cleared, the sun began to shine, and a rainbow stretched across the sky. Noah looked up in wonder and asked, “You mean You're not going to destroy the world?”

'No,' said the Lord.

“The government beat me to it.’


Thanks to Cranmer (who presents the UK version).
Posted by A. S. Haley at 7:27 AM 2 comments

Tuesday, August 19, 2008

Victories in Virginia

Judge Randy Bellows has all but disposed of the issues remaining in the litigation between The Episcopal Church, the Episcopal Diocese of Virginia, and eleven of the churches who voted to withdraw from the Diocese and form the Anglican District of Virginia (ADV) in December 2005, and who also chose to affiliate with the Congregation of Anglicans in North America (CANA). (There are some twenty Virginia churches in all who have withdrawn from TEC and joined the ADV. When TEC and the Diocese chose to break off negotiations for an orderly withdrawal in January 2007 and to file separate lawsuits, they sued only those churches in the ADV who were CANA members, along with their rectors, vestry members, and the trustees who held the legal title to the churches' property.) To understand better the significance of Judge Bellows' latest rulings, a little background will be helpful.

In their complaints, TEC and the Diocese sought declarations that all the churches' property was held in trust for the Diocese and TEC (an attempt to enforce TEC's notorious Dennis Canon, first adopted at GC 1979), and could not be transferred to or used for the benefit of any congregation not affiliated with TEC. They further sought orders from the respective courts directing that the defendants transfer the churches' property and assets to the Bishop of Virginia, the Rt. Rev. Peter James Lee, that they vacate the churches in question and render an accounting to Bishop Lee for all of the parish moneys and property in their hands. TEC's complaint in addition asked for a preliminary injunction, pending trial of the action, to restrain the defendants from transferring away any of the churches' property.

Eight of the eleven CANA churches had property, some of which dated to the colonial era prior to the time when TEC's predecessor (PECUSA, or the Protestant Episcopal Church in the USA) was founded in 1789, and which was held by individual trustees for their respective benefit, as specifically allowed by Virginia law. (The other three owned no real property.) Under a law unique to Virginia and first enacted in 1867, the eight churches had each filed petitions in December 2006 with their respective circuit courts, together with reports showing the majority votes that had been taken to withdraw, and requesting the courts to approve the reports. Under the terms of the statute, the courts' approval of the respective reports would be "conclusive as to the title and control of any property held" by the trustees for the benefit of the withdrawing congregations. TEC and the Diocese each intervened in these petition proceedings, to assert the same claims which they made in the separate lawsuits they filed a month or so later. In April 2007, all twenty actions (eight brought by the property-owning churches, eleven filed by the Diocese and the one filed by TEC) were ordered consolidated for trial under Judge Bellows.

On February 19, 2007, the Primates gathered at Dar-es-Salaam had issued their now-famous communique which, among other things, called upon the churches in the Anglican Communion to "suspend all actions at law" over church property disputes, pending the response requested of TEC's House of Bishops by September 30, 2007. The churches' attorneys promptly wrote the attorneys for TEC and the Diocese on February 22, and invited them to agree to a standstill in the litigation. (All documents not specifically linked to in this post may be downloaded or viewed---not necessarily by date, I regret to say---at this site. You have to click on the "News Release" tab on the right, then on the "Downloads Home" image, then finally on the "Legal Documents" folder, where they are all listed.) The reply to the request by TEC Chancellor David Booth Beers, dated February 26, 2007, is especially illuminating:
. . .

We think that there can be no dispute that the Episcopal Church is an independent hierarchical religious denomination with subordinate entities through the United States and several other countries. . .
Notice the claim being made here, which should be news to most diocesan chancellors: The Episcopal Church is representing that it is hierarchical, "with subordinate entities through the United States . . ." (emphasis added). And just what might those subordinate entities be? Could Chancellor Beers possibly be referring to Dioceses such as the Diocese of Virginia, which came into existence well before PECUSA, and which was one of the dioceses which met in New York in 1789 and agreed to form PECUSA? Apparently so, and for now we shall only note this claim and return to it when we see how it fared before Judge Bellows. Chancellor Beers continues:
As you also know, at their recent meeting in Tanzania, the Primates expressed concern regarding differences among the leaders and members of the Episcopal Church, largely regarding issues of human sexuality. In that connection, the Primates, while recognizing that steps to deal with these differences within the Church "must be generated with its own life," undertook to offer a number of interrelated "recommendations," one of which dealt with circumstances under which the differing parties could see their way to withdrawing from civil litigation over property matters. All these recommendations, taken together, call for a number of steps to be considered over time by the bishops and other leaders of the Episcopal Church.
(Emphasis supplied.) It fairly oozes with legalese smooth-talk, does it not? And look what has disappeared in the fog: the request for a suspension of the lawsuits pending a response from the House of Bishops expected by September 30 has been transformed into a series of "steps to be considered over time" by not just the bishops, but by "other leaders" of the church---presumably General Convention (which in February 2007 was not due to meet again for another two years and four months)? Who else could the "leaders" of this "hierarchical religious denomination" be, besides the bishops?

Chancellor Beers goes on to recount all the many ways in which the actions of the churches, their rectors and their vestries have violated "numerous rules of the Church and state law," and notes that the Dar-es-Salaam communique called for assurances that no property would be alienated (conveyed away to others) without appropriate consent. He then observes: "The Church is unaware of any movement in this regard on the part of the congregations involved in the pending litigation."

"Movement?" All he has to do is propose a stipulation that there will be no conveyances; the parties can sign it, the court approves it, and there is the requisite "assurance." No, this is not the real reason why TEC will not agree to a standstill. The letter goes on to reveal the true reasons:
In these circumstances, it would be premature, to say the least, for the Church at this time to withdraw from or agree to suspend the litigation, thereby ceasing its efforts to protect its interests and that of its past, current, and future members in seeing that parish property be used for the Church's ministry and mission. Any proposal for such a step should be considered by the Church in connection with all the other recommendations of the Primates' communique that are under consideration by the leaders and other interested persons within the Church, and in the context of developments that may protect the Church's interests in other ways. As noted, this involves a process that will be undertaken over time, in accordance with the rules and procedures of the Church.

Thus, the suspension of this litigation at this time would not be appropriate.
Translation: "A standstill with you will never happen, because there are just too many bishops and 'other interested persons within the Church' [??!] who want this fight to go forward. There is just too much at stake in terms of power, and any one bishop or church chancellor, or even a few of them together, who called for such a step would immediately be branded as cowards in the eyes of their colleagues. See you back in court." (And this interpretation of Mr. Beers's letter was borne out just weeks later, by the pugnacious statements in response to the communique issued from Camp Allen by the House of Bishops.)

Well, here we are now, one year and six months later, and what has this stubborn strategy obtained for TEC and the Diocese of Virginia? The score, by my tally, is currently five to nothing in favor of the withdrawing CANA churches. A quick summary:

1. In November 2007 the parties had a five-day trial on the interpretation of the Virginia Division Statute (see my previous post for its text) and its applicability to the parties in the case. After exhaustive briefing and a full day of oral argument, Judge Bellows issues his first decision against TEC and the Diocese, on April 3, 2008. The decision (88 pages long) provides a thorough review of the recent history in TEC and in the Anglican Communion, concludes that the Diocese and TEC are each a "church" within the meaning of the statute, and that the Anglican Communion itself is a "religious society," if not a church as such. (After the Archbishop of Canterbury's last press conference at Lambeth, Judge Bellows could now cite Dr. Williams in support of a finding that the Anglican Communion is indeed a "church"---and who better to have as an expert?) The decision goes on to find that the CANA congregations are "attached to" (affiliated with) each of these three churches, that CANA, the Church of Nigeria, ECUSA, ADV and the Diocese are all "branches" of the Anglican Communion, and that as a consequence, CANA and ADV are likewise "branches" of ECUSA and the Diocese. Finally, the Court decides, based on the experts it heard, that unquestionably a "division" has occurred in a "church or religious society" (as previously defined) to which the CANA congregations are "attached," and that the division has occurred at all three levels: within the Diocese, within ECUSA, and within the Anglican Communion. Thus the Division Statute on its face applies to the dispute. Score: 1-0 in favor of the CANA congregations.

2. The next question is whether the application of the Statute to the parties would violate either the Virginia or the federal Constitutions. Again, the issues are thoroughly briefed and argued, and again Judge Bellows issues a comprehensive and scholarly opinion of 49 pages that makes hash of the insipid arguments offered up by TEC and the Diocese. The ruling, delivered on June 27, 2008, finds that the Statute does not violate the Free Exercise Clause in the First Amendment, because it is neutral in its operation, and allows a hierarchical church to ensure that its parishes' property will remain with the church no matter what kind of division occurs, if it follows the legal steps necessary to create an ownership interest in the hierarchical entity. Pointedly, Judge Bellows finds that despite years of opportunity to do so since the Division Statute was enacted in 1867, ECUSA and the Diocese failed to make the appropriate legal arrangements with their parishes (and ECUSA and the Diocese virtually conceded that they would have faced stiff resistance in doing so; hence their taking refuge behind the Dennis Canon). Judge Bellows goes on to hold that the Statute does not get the Commonwealth of Virginia into the business of "establishing religions", or of unduly entangling itself with questions of religious doctrine or belief, so that it does not violate the Establishment Clause, either. Nor does its application offend the 14th Amendment's concern for "equal protection of the laws"---he already ruled that the Statute is neutral in its operation, and allows hierarchical churches to function as they wish to operate. And finally, he rules that the operation of the Statute does not produce an unconstitional "taking" of property in violation of the Fifth Amendment (as applied to the States via the 14th Amendment). Score: CANA congregations 2, ECUSA/Diocese 0.

3. In a separate ruling delivered also on June 27, Judge Bellows disposes of five technical points of Virginia law bearing on the interpretation of the Division Statute. He holds that under its terms, his review of the votes taken is limited to whether or not the requirements of the Statute were met, and that the vote was "fairly taken." He also notes that the Statute provides that once he has made that determination, it "shall be conclusive as to the title and control of any property held in trust for such congregation . . .". And finally, he rules that he does not have to look behind the petitions under the Statute themselves to decide who actually "holds title" to the churches' property, so long as the petition shows that it is "held by trustees" as required by the Statute. Score: CANA Congregations 3, ECUSA Diocese 0.

4. These rulings leave still one aspect of the constitutionality of the Division Statute to be decided: whether or not its operation in this case will "impair the obligation of contracts" in violation of Art. I, Sec. 10, cl. 1 of the United States Constitution. That is the subject of the first of the rulings Judge Bellows issued on August 19, 2008. (Incidentally, the date of this ruling, following supplemental briefs by the parties following another day of oral argument held just on August 11, shows the considerable effort that Judge Bellows is putting into this case: he delivers another 32 pages of rulings a mere number of days after getting supplemental briefs---which he called for on questions that he had raised, not the parties, at the oral argument 8 days earlier.) He once again makes mincemeat of the TEC/Diocese arguments, some of which are palpably ridiculous (charitably, Judge Bellows refers to them as "rather ambitious"). In essence, TEC had nothing like a Dennis Canon in 1867 when the Statute was first enacted, and Judge Bellows holds that the Statute therefore takes precedence over any contractual arrangement between the Diocese and a parish that was entered into after that date. Thus ECUSA's Dennis Canon cannot trump the Statute without ECUSA taking steps beyond the Canon itself to set up a proper and legal trust arrangement:
Vested rights in property cannot lie where the property itself has not been acquired as of the date of the supposed vesting. Nor can ECUSA/Diocese convert or transmute property acquired after 1867 into property treated as it it was acquired prior to 1867, even by reference to ECUSA/Diocese's constitution or canons. The Contracts Clause limits the power of the state to impair contract rights. It is not alchemy.
(Ruling at p. 11; footnote omitted, in which the court points out that to try to construe the Dennis Canon (as urged by the Diocese/TEC), so as to achieve the transmutation of property titles into a trust for the Church, would be much more likely to entangle the court in the questions of religious doctrine and of hierarchical governance that TEC and the Diocese have all along contended the court must avoid! And that takes care of Chancellor Beers's argument that the "hierarchical nature" of TEC trumps the Division Statute.) So the application of the Division Statute has been found to be fully constitutional on all points raised by TEC and the Diocese, and the Commonwealth of Virginia's role in the case can now cease (to be resumed on any appeal). Score: CANA congregations 4, TEC/Diocese 0.

5. This leaves the most incredible ruling of all, also handed down on August 19---incredible, not because of the ruling itself, but because TEC and the Diocese had the chutzpah to require Judge Bellows to make it. In essence, what they tried to do, after they lost rulings 1, 2 and 3 above, was to go back to the very beginning of the case and argue that the entire proceedings since that time had been entirely in vain---over 180 pages of detailed rulings, countless hundreds of thousands of dollars poured into legal research, briefs and argument, and five full days of trial. Why in vain? Well, because TEC's and the Diocese's lawyers thought of a brand-new argument they ought to have been---and rather ludicrously claimed they had been---making all along: Rather than contend (as they had up to this point) that TEC's and the Diocese's constitutions and canons prevented the churches from leaving as they did, and from invoking the Division Statute, now they wanted to be able to show that those same churches had voluntarily waived the protections of the Statute. (Presumably they wanted to make the same arguments as before about the effect of their constitutions and canons, since no one has mentioned anything about a written, knowing, and fully executed and notarized waiver document.) Needless to say, the court made short shrift of this outlandish request, given all the money and resources that had been spent to date, and with the end nearly in sight. Score at this time, therefore: 5-0 in favor of the CANA congregations.

What does this leave for the trial scheduled for October? Judge Bellows also issued an order calling for counsel to come to his courtroom on August 22 at 2:00 p.m. to discuss that very point. I have no inside information here, and there will be many who are closer to the events who can speak to this more knowledgeably, but it seems to me that the case is just about over as to the eight CANA churches who filed their petitions. In accordance with the ruling discussed in Item No. 3 above, all Judge Bellows will require of them is that they prove the facts alleged in their petitions: that they are each a church whose property is held by trustees, formerly attached to a branch of ECUSA, that in light of the division that the Judge already found has occurred, they each took a duly recorded vote in which all of their membership had an opportunity to take part, that the vote was fair in all respects, and that the majority decided to leave with the property. End of proof: the judge approves the vote, and that approval is "conclusive as to the title and control of [the] property . . .". End of case, and next: to the Virginia Supreme Court [UPDATE 08/20/2008: not first to the court of appeals, as in most other states: see the helpful comment of Jeff H. below], and then a request for review to the United States Supreme Court, no matter who loses. We are years away from any final resolution in this matter. And the three churches who do not own any real property will have to proceed to trial without having the benefit of the Division Statute. But because they have no real property, presumably the only argument is about bank accounts, and maybe some hymnals and prayer books---all of which should be replaceable in the event the Dennis Canon rears its ugly head.

What is so disheartening to note is the gulf that existed between the supremely confident views of TEC as expressed by its Chancellor in the February 2007 letter quoted at the outset above, and the reception of TEC's actual justifications for those views offered to Judge Bellows, who is a very sharp and competent judge. Chancellor Beers has had his day in court, and then some; he did not put forth even one argument that caused the Judge any difficulty in wrestling with the plain terms of the Statute, and with what little precedent under it there was to argue. The CANA lawyers had the much better side of the argument; time and again, Judge Bellows quotes from their briefs the perfect riposte to a half-hearted or poorly thought-out contention raised by the TEC attorneys. But Judge Bellows is also perfectly capable of handling the arguments by himself, as he demonstrated when he gave TEC even further opportunity to develop their points beyond where they themselves had thought to take them.

At this juncture, therefore, I am moved to quote Horace (or was it Plutarch?):




Posted by A. S. Haley at 11:41 PM 8 comments

Monday, August 18, 2008

The Self-Fulfilling Prophecy

The Rev. Elizabeth Kaeton has put up on her blog what she says is a leaked copy of an email sent by the Rt. Rev. Robert Duncan of the Diocese of Pittsburgh to an undisclosed recipient. [UPDATE 08/20/2008: The email is genuine, and was sent from Bishop Duncan to the Rt. Rev. Gary Lillibridge, who is a member of the Windsor Continuation Group. Since it contains a critique of their preliminary Lambeth observations, Bishop Lillibridge asked Bishop Duncan for permission to forward it to the WCG, which Bishop Duncan granted. It was then leaked by someone in that Group, or on its staff, to liberals for their purposes as openly stated by Susan Russell below. So I shall not change any of my criticism leveled against the liberals for their sneaky attempt to discredit Bishop Duncan in advance of the September HoB meeting in Salt Lake City. Rather, to his credit, Bishop Duncan's forthright avowal of authorship, and of the genuineness of the letter, shows us why he wrote it, and how his willingness to back his views, even if his enemies could seek to use them against him, is a measure of his character. Those who participated in this scurrilous episode for their own short-sighted ends look puny in comparison to his moral strength. And that, mind you, not the systematic abuses of the canons by the Most Rev. Katharine Jefferts Schori et al., is what is the sign of a real bishop! Honi soit qui mal y pense.]

Apparently now private emails are to be added to the type of "evidence" to be adduced in favor of the charges that Bishop Duncan has "abandoned the communion of this Church" that will be the subject of an invalid resolution to depose him at the House of Bishops meeting in Salt Lake City in September. (I have explained in detail what is invalid about the resolution to depose in an earlier post.)

If the email is genuine, it certainly contains no surprises. Bishop Duncan is straightforward in discussing what is the matter with the Windsor Continuation Group's call for three moratoria: on further ordinations of non-celibate gay or lesbian bishops, on further blessings of same-sex unions, and on cross-border interventions by bishop. The email supposedly says:
The WCG proposes "cessation of all cross-border interventions and inter-provincial claims of jurisdiction." There are at least four serious problems with the thinking surrounding the work of the Windsor Continuation Group in this regard.

The first difficulty is the moral equivalence implied between the three moratoria, a notion specifically rejected in the original Windsor Report and at Dromantine.

The second is the notion that, even if the moratoria are held to be equally necessary, there would be some way to "freeze" the situation as it now stands for those of us in the process of separating from The Episcopal Church.

The three dioceses of Pittsburgh, Quincy and Fort Worth have taken first constitutional votes on separation with second votes just weeks away. We all anticipate coming under Southern Cone this fall, thus to join San Joaquin. This process cannot be stopped -- constitutions require an automatic second vote, and to recommend against passage without guarantees from the other side would be suicidal.

The third reality is that those already separated parishes and missionary jurisdictions under Rwanda, Nigeria, Kenya, Uganda and Southern Cone (including Recife) will never consent to the "holding tank" whose stated purpose is eventual "reconciliation" with TEC or the Anglican Church of Canada. (It was obvious to all at Lambeth that the majorities in the US and Canada have no intention of reversing direction.)

The fourth matter is that the legal proceedings brought by TEC and ACC against many of us have been nowhere suspended by these aggressor provinces, with no willingness to mediate or negotiate though we have proposed it repeatedly, not least since Dar es Salaam.
That there is no moral equivalence between the first two moratoria and the third is indeed a fact that was recognized in the Windsor Report and again by the Primates meeting at Dromantine. So, there is nothing new there.

That the process of separation cannot be "frozen" is also a given. As the quotation above states, the Constitution of the Diocese of Pittsburgh requires a second vote on any proposed change once a change has first been proposed and approved at an earlier convention. So the vote on October 4 will go forward regardless of anything TEC, the WCG, or anybody else, for that matter, does (but see below). And in that vote, which will be secret, Bishop Duncan will have only one ballot to cast, along with everybody else. (See this post by the Rev. Mark Harris on why anyone's secret vote should not be used as evidence of "abandonment"---for once, I am in full agreement with the Rev. Harris.) Thus there is nothing in this statement that should be offered in support of the resolution to depose, either.

The third and the fourth reasons given in the statement quoted above are also simple assertions of fact, and have nothing to do with any personal intentions or thoughts of Bishop Duncan on "abandoning communion."

So let us review the significance of this post by the Rev. Kaeton (which I understand she also forwarded to the entire House of Bishops/Deputies list). A purloined email is instantly, via the Internet, circulated to all of Bishop Duncan's colleagues, without any assurances that it genuinely originated from Bishop Duncan, since the Rev. Kaeton is unable (or unwilling) to disclose how she came by it, or who was the original recipient. It is accompanied by this personal insinuation:
I find myself scratching my head and asking why anyone who claims that his deposition (rumored to be on the agenda for discussion at this September's HOB's meeting), is "unfair" would be putting this kind of stuff in email dated August 11 which can - to wit - be so easily reproduced and distributed.
That is precisely the point here, Rev. Kaeton: it has been, thanks to you, "so easily reproduced and distributed," but without the kind of thought or analysis that would show how unrelated its content is to any of the trumped-up charges that will be used as the basis for an illegal resolution to depose. Instead it is offered in the hope (Susan Russell is even more explicit about this) to convince even more members of the House of Bishops to join Presiding Bishop Jefferts Schori and the rest of her lemmings in jumping off yet one more legal cliff: one more violation to add to her catalog of violations of the Constitution and canons to date---surely an unenviable achievement that has never been before equalled, and with God's help will never be approached again.

The House of Bishops will meet in Salt Lake City on September 19, and will proceed with this pre-programmed farce. The first sign of what is to come is that there will probably not be a sufficient number of retired bishops present to produce the required number of assents to deposition. The violations will thus commence when Presiding Bishop Jefferts Schori, as the Chair of the meeting, overrules the objection by Bishop Duncan that the House cannot vote to depose him because he was never inhibited first, as Canon IV.9 in plain English requires. The next violation will be the taking of the vote itself, and the third violation will be in the Presiding Bishop's overruling yet one more objection based on the Canon---that the requisite number of Bishops in the House are not present and voting. And the fourth violation will occur when the Presiding Bishop declares to the assembled bishops that the resolution passed---even though the lack of the required number to vote for deposition will mean that the resolution actually failed. The fifth and final violation will occur when Presiding Bishop Jefferts Schori signs the certificate of deposition.

So, five new violations of the same Canon in just the space of a few days, for a new egregious record. And that will be only the beginning! For watch what the Presiding Bishop and her minions immediately will start to do in the Diocese of Pittsburgh once the deposition is announced: they will probably move against the Standing Committee and "depose" them, just as was attempted in San Joaquin. There may even be an attempt to get an injunction against the Convention's going forward with the vote on October 4, if they can find a compliant judge (see my concerns on that point previously expressed here).

The liberals will all seek to justify these cascading illegalities by saying what they have been saying of Bishops Cox and Schofield all along: "The depositions are valid, because they never showed up to object, and they had each decided to leave anyway. We're just acknowledging the realities of the situation." Even if true, what does due process mean? Why have canons at all if you cannot follow them?

And does anyone still wonder why The Episcopal Church bothers to publish the Canons, and make them available online for anyone to read? You are watching a true kangaroo court in action---run by our bishops, no less! If we cannot obtain their commitment to follow their own laws and procedures, how much less can we expect their commitment to be dutiful adherents to and teachers of the faith once delivered to the saints?

The result is a self-fulfilling prophecy. The Episcopal Church proves by its manifold illegal acts that it is not a lawful organization any more, and thereby provides the justification for leaving it---in order not to be corrupted by even more illegalities, still to come (in the cases of Ft. Worth and Quincy). And the Rev. Kaeton and others like her circulate purloined private correspondence in an effort to drum up enthusiasm for taking yet more illegal action, so that the invasion of privacy becomes the justification for what those who will vote to depose already think they know: that "abandonment" has indeed occurred, and Bishop Duncan is guilty as charged. Well, if he is guilty, then it must be for committing a thought-crime, since nothing has happened yet on the ground. But TEC and its liberals are doing their level best to see that what they are punishing before it happens will then actually occur. And that is what we call a self-fulfilling prophecy.

[UPDATE #2 - 8/20/2008: The Reverend Elizabeth Kaeton, I regret to report, still does not get it. When she learned that the source of the leak she exploited for political purposes was someone within the Windsor Continuation Group or its staff, did she bother to tell us any more about how she came to obtain the private message, or to apologize for the role she played? No---but she puts up a new post called "Disturbing", to which I refuse to link on principle. (For the time being, you can find the link to her blog on the right, but this entire incident, and her blasé response to it thus far, might just be all the reason I need to remove the link. I try to let every viewpoint have a link here---even the atheists have their link---but there is no reason to lend support to underhandedness and subterfuge.)

[And just what is disturbing to the Rev. Kaeton? It is the fact that Bishop Duncan's article owning up to the letter used the words "liberal activists" to describe the persons responsible for the leak---"like that's a bad thing," she says. Projecting from criticism of the leak---which was a bad thing---onto a criticism of the leakers---who did violate Bishop Duncan's privacy in the hopes of scoring a short-term political gain, and so were "activists" in every sense of the word (and they for sure and certain were not "conservative" activists)---is a common liberal feint that seeks to turn criticism of an act into an ad hominem argument, and so turn the criticism back on the criticizer. It never worked in the past, and it won't work in this case.]

Posted by A. S. Haley at 5:17 PM 1 comments

Don't Talk to the Police

This post will offer a change of pace from the usual Anglican/Episcopal ferment. What I am about to show you reminded me of an incident that occurred when I was fifteen years old, and visiting San Francisco. I was taking part in a chess tournament for juniors (a young Bobby Fischer, just at the start of his career, won it). I had just finished a game, and walked outside to get some light and fresh air. I was wearing my best gray sports jacket; San Francisco was remarkably cool for that time of year. 

As I approached an intersection, I saw two policemen who were looking at me intensely. They conferred briefly, and one of them came up to me and asked: "Do you have any identification?" I did not yet have a driver's license, but I did have a Social Security card, and I produced that (it had no photo, of course; just my signature). The policeman then took my arm and said, "Would you come with us, please?" Before I could assess what was happening, I found myself seated between the two policemen in the back seat of a patrol car that had been parked nearby, and we drove off. I asked where we were going, and one policeman responded courteously, "Not far. You'll see soon enough." They asked me all about where I was from, and what I was doing in San Francisco. In a few minutes the car pulled to the curb again, and we got out, again with me between the two police. There were more policemen all around, with the red lights flashing on their cars. Again, without realizing what was happening, I was guided inside a revolving glass door, and I came into what I realized was the lobby of a bank. There were lights rigged up for backlighting, as when a photographer takes your portrait, and some men in plain clothes were taking flash pictures. I was asked to go over to a blank wall and join three other young men who were standing there---each, like me, tall, blond, and wearing a gray sports jacket! 

It turned out that the bank had been robbed just half an hour earlier---by a tall, blond young man wearing a gray sports jacket, who had fled down the street. The police had simply fanned out, and hauled in all the potential suspects they could spot on the street. We were lined up back at the bank, and the tellers were asked if they could identify the robber.

After a few more minutes, I was released, and the police, while not apologizing to me, courteously asked if I needed a ride back to where they had picked me up. I thanked them and declined---it was not that far to walk, and I was a little leery of police cars by then!  

This story is by way of introducing a video which, as an attorney, I think is worthy of everyone's attention. If you were ever stopped and interrogated by the police, you might think that, as a God-fearing and upright Christian with nothing to hide, that you could simply tell the truth to the police and they would let you go. Let me assure you that things have greatly changed in the law enforcement world since I was fifteen years old, and that while that may have once been true, it is unfortunately no longer the case. Now get yourself a cup of coffee or a glass of iced tea, settle in, and listen to Professor of Law James Duane explain to you why you should never talk to the police by yourself. Although the video is nearly half an hour in length, it flies by because the good Professor does not, shall we say, waste time in between words:



(Here is a link, if you wish, to the original on YouTube where you can watch it on a larger screen. The second half is also there, as well.) 

The video ends, as you have seen, with his introducing a real live policeman who has interrogated hundreds and hundreds of suspects. In a somewhat shorter, but equally informative, talk, he gives details of the tricks that police (legally) use to get evidence out of interrogations:



I hope now you see the truth in the title of this piece. (Hat-tip: The Anglican Firearms Enthusiast.)


Posted by A. S. Haley at 9:52 AM 0 comments

Sunday, August 17, 2008

A Second Look: Jesus and the Sinful Tax Collectors

In my previous post, I drew on the Gospel passages about Jesus and his dealings with social pariahs, like tax collectors who enriched themselves by extorting more than was due, to explain that no sinner was simply welcomed at the table by Jesus. The Lord said he "came to call (invite) not the righeous, but sinners" (Mt 9:13). Or again, "The Son of Man came to seek and save the lost" (Lk 19:10). A lesson followed that was applicable to the current agitation by LGBT persons for "full equality" in The Episcopal Church/Anglican Communion---meaning ordaining LGBTs and blessing their same-sex unions. It concluded that because sex outside Christian marriage between a man and a woman has always been regarded as a sin, the traditional position that LGBTs had to be celibate in order to be priests was only applying what Jesus required of the tax collector Matthew before he could become His disciple: to give up his sinful behavior, repent of his ways, and desire sincerely to follow Him.

In looking through the Web at how other peoples' sermons have dealt with the tax collector stories, I am struck by the fact that the lessons drawn have to do with all kinds of sinners, and not just sexually active LGBT persons. Here, indeed, is a list of social misfits and outcasts that appears in one such sermon:
Let's consider who we faithful, righteous Christians tend to look down on:

Punk rockers, surely, and
Teenagers with body piercings and gothic clothing,
Pregnant teenagers,
Divorced men and women,
Gamblers and junkies,
Emigrants and illegal aliens,
Those who are of a different religion,
Poor, smelly homeless people who don't exactly belong in our churches and might steal our purses if given have a chance,
and the list goes on.
Without even referring to LGBTs, this sermon goes on to make the same two points that I did. First, that the humble tax collector genuinely repented and begged forgiveness for his sins (I am leaving out all the references in the original):
"But the tax collector stood at a distance. He would not even look up to heaven, but beat his breast and said, 'God, have mercy on me, a sinner.' " (Lk18:13)

Notice the tax collector's posture. Jesus describes three kinds of body language before he voices the tax collector's prayer:

Standing at a distance. He doesn't feel worthy to draw close to God or the temple.
Not raising his eyes to heaven, but standing with head level or bowed, as a sign of his sense of guilt.
Beating his breast. Though we don't see many instances of this in scripture is a sign of mourning, Josephus, a Pharisee who lived a few decades after Jesus, described David's mourning for his son Absalom in this way: "David ... wept for his son, and beat his breast, tearing [the hair of] his head, tormenting himself all manner of ways...."
The tax collector's prayer is remarkable and short. First, he addresses God, just as the Pharisee had done.

Next, instead of telling God all the good things about himself, he describes himself as a sinner, hamartolos, "pertaining to behavior or activity that does not measure up to standard moral or cultic expectations, 'sinner.' " Notice that he makes no excuses for his behavior, offers no mitigating circumstances. He is confessing his sinfulness before God and taking full responsibility for it.

Finally, he asks for mercy, Greek hilaskomai, "to cause to be favorably inclined or disposed, 'propitiate, conciliate.' When used in the passive, of one addressed in prayer, to act as one who has been conciliated, 'be propitiated, be merciful or gracious.' " I was expecting to see the common Greek word eleeo, "to be greatly concerned about someone in need, 'have compassion/mercy/pity on or for someone.' " The difference between the two words is significant. Hilaskomai calls for forgiveness from one who has been wronged, while eleeo asks for compassion and pity for one in tragic circumstances.

For the tax collector to ask for forgiveness and restoration of his relationship with God is a bold and faith-filled act for a man so despised by his society. He is obviously humble and repentant of his sins, but his faith has made him bold to ask for something that he has no right to expect -- forgiveness and restoration before God.
And second, that those who are confident in their own righteousness should guard against shunning the sinner, for they may turn out to be the ones who are wrong in the sight of God:
Having contrasted the Pharisee's self-righteous and disdainful piety with the tax collector's sincere and faith-filled penitence, Jesus pronounces judgment:

"I tell you that this man, rather than the other, went home justified before God." (Lk18:14a)
The word translated "justified" is Greek dikaioo, "to render a favorable verdict, 'justify, vindicate, treat as just' ... 'to be found in the right, be free of charges.' "

Can you imagine the impact Jesus' parable had on the Pharisees present? They must have been livid with anger. How about the crowd? They were amazed, wondering, pondering. But the prostitutes and tax collectors, thieves and adulterers in the audience may have been weeping, for Jesus had declared that it was possible for them to be saved, to be forgiven, to be cleansed, to be justified before God. There was hope for them yet. Jesus had given them hope.
My point in revisiting this topic is this: I would ask readers who have stuck with me thus far to note that I could have written the entire previous post on the topic of adulterers instead of using LGBTs as the subject of my analogy. After all, adulterers are right down there with the tax collectors in the eyes of the self-righteous:
"The Pharisee stood up and prayed about himself: 'God, I thank you that I am not like other men -- robbers, evildoers, adulterers -- or even like this tax collector. I fast twice a week and give a tenth of all I get.' " (Lk18:11-12)
Or I could have written the post analogizing to gamblers, or prostitutes, or drunkards, or any of the many other categories of sinners. 

But I did not. I admit that I deliberately singled out LGBTs for my comments. Was this a show of prejudice? I know that there will be those who received it as such, and so wrote it off as not worthy of their notice. I cannot do anything about that, so I will waste no time regretting that I did not reach those people. But to the rest, here is the simple reason why the focus of the post was on LGBT Christians: It is because only they, and not the adulterers, gamblers, drunkards or misers, or any other sizeable group of fellow sinners, have a militantly organized lobby in the Church who are demanding "rights" from it which it cannot rightfully give and still remain faithful to its Gospel. And in demanding what is not theirs to have, that lobby is tearing apart The Episcopal Church, and the Anglican Communion in the process.  

I will not repeat what I said in the earlier post about there being no "right" to be ordained, or to have a same-sex union blessed. That much should be self-evident to anyone who recognizes God as the sole authority in the life of the Church. By organizing as a political group in the Church, by pre-screening and carefully picking their deputies to General Convention, by having membership on Title IV Review Committees who bring baseless charges of "abandonment" against clergy who are caught in a Catch-22 in trying to be faithful to their ordination vows, and by supporting bishops who trample on the Constitution and canons in their drive to expel and punish the faithful, the LGBT lobby is fully deserving of being singled out. Far from evidencing prejudice, to comment on their outrageous demands, and to point up the destruction they have brought to the Church, is no more than a curmudgeon's duty. And if that be prejudice, so be it---it is a worthy charge to accept in service of the Church in which I grew up.

Perhaps most egregious of all are those among the LGBTs who now are tired of the fight as well, and who, having managed to bring the Church into disorder and confusion, are saying that the time has come to discard it:
I am not sure what to say; "things are slowly getting better" is very cold comfort, and it does not mean things have become tolerable for all the "improvement."

Still, there are affirming communities in TEC that are not wavering or wobbling in their commitment, and it seems the HoD is very sympathetic.

What other course is there, in any such case, other than building up base communities? Going it alone?

Yes, I think going it alone is better, honestly. In fact, it's starting to feel to me like the 3rd Century, and the desert seems to beckon.

Hey, listen: I'm not alone. The pews continue to empty out as people continue to recognize how crazy the church is. It's just not a healthy environment.

I think we really can do better on our own . . . I don't mean alone, individually, but joined with one another, outside the institution. The Desert Fathers and Mothers did it that way, after all.

I think the church is done for, really. It's corrupt and unhealthy, and I don't see that changing anytime soon; the secular world is actually healthier, in fact, I think. Meantime, we do have a chance to be part of building something better.

I do appreciate the things you've written here, though! And there's nothing that stops any of us from writing and speaking and being a part of our own communities. But the institution isn't worth it any longer, I don't think.  
No, there is "nothing that stops any of us from writing and speaking and being a part of our own communities," especially after the tidal forces of activism have wrecked the larger Church community we once had. But the instinct now to walk away from the wreckage bears out the truth of this passage:
False assurance and a smug attitude bedevil the heretic. He is so enchanted by his own twisted logic that he loses the ability to doubt his feelings, turning his faith into a fierce fanaticism that seeks to devour the weak and make more converts to his side.

The Church must ask itself: how does this happen? How could faithful people be so beguiled by their own thoughts that they give up on Christ and set aside Gospel values? What has caused them to fail God?

The shame of the Church is this: that those who once espoused a faithful life are now inclined to berate Christ’s followers and subvert the Gospel. The heretic now has his own agenda to destroy the Church from within, looking to corrupt the body of Christ with a disloyal, agitated, and unloving heart.

The Bible is full of fallen servants, whose desires overcome their devotion to God. They are plagued with envy, guilt, and pride. In order to be restored to God’s community, they need to seek mercy and grace, forgiveness and pardon. The heretic cannot bring himself to do this. His false integrity and uncompromising pride makes him withhold his contrition and repentance, leading him into the path of perdition.

. . . 

God knows those who are His and He embraces those who belong to Him, even if they have fallen from grace. God loves the sinner without embracing the sin. And the faithful fallen one seeks His clemency and benevolence, favor and restoration.

Not so the heretic. He remains pure in his own eyes and does not seek the Lord’s favor. He makes his own restitution and belittles those who acknowledge their weaknesses. The heretic wallows in his own thoughts and bathes his soul in his own understanding.

Even amongst Christ’s own company, of those who walked and talked with Him, were some who chose to go another way. His message was too hard to endure; His demands were too high to achieve. They chose to make their own religion and follow an easier way. But not all of Christ’s disciples chose this. Some remained with Him until His arrest. The way was hard, but they kept their hope in the Lord.

In every generation, [there] are those who start [in] the Lord’s company, but end up taking their own sides. No church, no community of faith, no congregation of the faithful is without its critics or heretics. Even in the Lord’s solemn and sacred company of apostles was one who would choose to betray Him.

We are naïve if we believe that the Church is perfect and free from heresy. The sad thing to note is this: the Church is the breeding ground for heresy. It strikes from within and causes trouble amongst the faithful. Shepherds of the sheep must always be vigilant and look for leaders of the wolf pack.

In the end, heretics choose schism over sanctification, and division instead of devotion. They are not forced out of the church; they separate themselves from the body of Christ. They enforce their own anathema.
Posted by A. S. Haley at 8:04 AM 6 comments

Friday, August 15, 2008

Jesus and the Sinful Tax Collectors

The excellent and very useful Bible History site has a good overview of what was so wrong about the tax collectors in Jesus' day:

The Jewish people were under the yoke of foreign oppressors ever since the Babylonian captivity. During the New Testament times the land of Israel was within the province of Syria and the tax collectors were collectors of Roman taxes, they were extortioners, and very despised.

The Jews detested these tax collectors not only on account of their abusive and tyrannical attitude, but because the very taxes that they were forced to collect by the Roman government were a badge of servitude and a constant reminder that God had forsaken His people. The tax collectors were always classed by the people with the harlots, usurers, gamblers, thieves, and dishonest herdsmen, who lived promiscuous, lawless lives. Some of the common terms for the tax collectors were "licensed robbers" and "beasts in human shape."

According to Rabbinism there was no hope for a tax collector. They were excluded from all religious fellowship including the Temple and Synagogue. Their money was considered tainted and it defiled anyone who accepted it. They could not serve as a witness in any court in Israel. The Rabbis had no word to describe any sort of help for the tax collector, because they expected him to externally conform to the law in order to be justified before God.
"Beasts in human shape"---sounds pretty exclusory, does it not? Tax collectors were the lowest of the low, outcasts and pariahs, who had only their wealth to console them---and doubtless that was enough for most of them. Until Jesus came into their midst:

The attitude of Jesus toward the tax collectors was in stark contrast to that of the Rabbis. He had come to seek and save the lost. The Pharisees were separatists, and did not lower themselves to have anything to do with a tax collector, who was to them no better than a Gentile. But Jesus came not to condemn anyone, but to save every sinner and offer a better life. He never taught that there was anything inherently wrong with paying tribute to the Roman Government or collecting the tax. He was opposed to extortioners, but would fling open the door of repentance and salvation to them. He rejected none, not even the worst.

Jesus made himself a friend of men, even of the tax collectors and the worst of sinners. He set a new precedent among the Jews by accepting and associating with the tax collectors. He ate with them (Mark 2:16), He offered salvation to them (Luke 19:9), and He even chose a tax collector (Matthew) as one of His twelve disciples (Matt 9:9).

Luke 18:9-14 "Also He spoke this parable to some who trusted in themselves that they were righteous, and despised others: Two men went up to the temple to pray, one a Pharisee and the other a tax collector. The Pharisee stood and prayed thus with himself, 'God, I thank You that I am not like other men--extortioners, unjust, adulterers, or even as this tax collector. I fast twice a week; I give tithes of all that I possess.' And the tax collector, standing afar off, would not so much as raise his eyes to heaven, but beat his breast, saying, 'God, be merciful to me a sinner!' I tell you, this man went down to his house justified rather than the other; for everyone who exalts himself will be humbled, and he who humbles himself will be exalted."
Many people today who are gay, lesbian or bisexual in their orientation, or who have undergone gender transformation, see themselves as social outcasts on a par with the first-century tax collectors. And to the extent such discrimination takes place against any LGBT person (to use the collective acronym) in the secular world or in any Church, it is to be denounced and opposed. Jesus' example to us demands no less of any Christian.

It is a confusion of categories, however, to believe that it is equally discriminatory to deny ordination to a non-celibate LGBT person, or to refuse to bestow a Church blessing on their unions. The result of this confusion is that LGBT's see themselves as "victims", and people like V. Gene Robinson become a symbol of society's oppression, on the one hand, or of a radical vanguard that is transforming the Church, on the other hand. Neither role is correct.

The reason for this statement is again found in the Gospels. What did Jesus tell Matthew, who was a tax collector?
Mt9:9 As Jesus went on from there, he saw a man named Matthew sitting at the tax booth. “Follow me,” he said to him. And he got up and followed him. 9:10 As Jesus was having a meal in Matthew’s house, many tax collectors and sinners came and ate with Jesus and his disciples. 9:11 When the Pharisees saw this they said to his disciples, “Why does your teacher eat with tax collectors and sinners?” 9:12 When Jesus heard this he said, “Those who are healthy don’t need a physician, but those who are sick do. 9:13 Go and learn what this saying means: ‘I want mercy and not sacrifice.’ For I did not come to call the righteous, but sinners.”
Jesus did not tell Matthew to continue on in his sinful ways. He required that Matthew give them up, and follow him (see also Luke 5:27-28). Then he used Matthew's friendships with other tax collectors to reach out to them as well, over dinners at Matthew's house. He reached out to them, not because they were righteous, or good companions, but because they were sinners, and Jesus came to call sinners.

Another tax collector, Zacchaeus, recognized what Jesus required of him without even being asked:
Lk19:1 Jesus entered Jericho and was passing through it. 19:2 Now a man named Zacchaeus was there; he was a chief tax collector and was rich. 19:3 He was trying to get a look at Jesus, but being a short man he could not see over the crowd. 19:4 So he ran on ahead and climbed up into a sycamore tree to see him, because Jesus was going to pass that way. 19:5 And when Jesus came to that place, he looked up and said to him, “Zacchaeus, come down quickly, because I must stay at your house today.” 19:6 So he came down quickly and welcomed Jesus joyfully. 19:7 And when the people saw it, they all complained, “He has gone in to be the guest of a man who is a sinner.” 19:8 But Zacchaeus stopped and said to the Lord, “Look, Lord, half of my possessions I now give to the poor, and if I have cheated anyone of anything, I am paying back four times as much!” 19:9 Then Jesus said to him, “Today salvation has come to this household, because he too is a son of Abraham! 19:10 For the Son of Man came to seek and to save the lost.”
"The Son of Man came to seek and save the lost." "Today salvation has come to this household"---why? Because Zacchaeus agreed to give up his sinful trade, and to make amends to those he had wronged.

The lesson from the Gospels is clear: Jesus did not associate with sinners to celebrate their sinful orientations; he called on them to repent of their ways and stop sinning. Still less did Jesus make Matthew one of his disciples and allow him to continue sinning as a tax collector: he required him to give up his profession altogether in order to become His disciple.

I say that the lesson from the Gospels is clear, but there are many who still disagree. In doing so, however, I submit that they distort (or ignore altogether) Jesus' clear calls for repentance. Here, for example, is how one author sympathetic to LGBT's reads the same passages I have just quoted (I have put in bold the statements with which I take issue):
The tax collectors were Jews who collected taxes from fellow Jews for the Roman Empire. They made their living by charging an extra amount. Some of them made more than a living. They exacted any amount they could and thus became well to do. They were considered traitors who became wealthy by collaborating with Roman authorities at the expense of their own people.

The sinners who are grouped with the tax collectors were not ordinary sinners. The Pharisees along with others could readily admit that everyone is, after all, a sinner and in need of God's mercy and forgiveness. But the sinners associated with tax collectors were in a special class. These were people who deliberately and persistently transgressed the requirements of the law. Included in this group would be money-lenders who charged interest on loans advanced to fellow Jews. This was a clear violation of the law of God stated in Leviticus 25:36-38.

Also in this group of sinners might be prostitutes who made their living by their ill-gotten gains. These were individuals who sold themselves to a life of sin in deliberate disregard of the law of God.

Yet, Jesus apparently associated with such people at dinner parties. The Pharisees charged that Jesus was "a glutton and a drunkard, a friend of tax collectors and sinners" (Luke 7:34). Even though Jesus belonged to the middle class, he reached out to people of the lower class. On one occasion Jesus said to some religious leaders in Jerusalem, "The tax collectors and the prostitutes are entering the kingdom of God ahead of you" (Matthew 21:31).

It's not hard to see why the Pharisees and others were upset that Jesus had table fellowship with people who were morally questionable. These individuals were profiting by disobeying the command of God and betraying their own people. They were what the Old Testament calls the wicked, unworthy to be part of the people of God.

Now, if Jesus had fellowship with tax collectors and sinners in order to preach to them, the Pharisees would not have fussed. After all, who would have objected that tax collectors and sinners were forsaking their sinful lifestyle, making restitution, and seeking a life of righteousness? The Pharisees believed that God offered forgiveness when sinners repented. They could even rejoice that a wretched sinner saw the light and was converted from a life of debauchery.

But what infuriated the Pharisees was that Jesus was not explicitly or directly asking tax collectors and sinners to do any of this. Some of them no doubt did repent, such as Levi (Luke 5:28). But Jesus seems to have accepted them as they were and was freely having dinner with them without requiring that they first clean up their lives.

Of course, Jesus did have a message to proclaim to them. But his message was not, "Straighten up your life and keep the law." Rather, his message was, "The kingdom of God is yours; you are included." By eating with them, he was extending to them the kingdom of God.

When we read about the protest of the Pharisees, we are quick to condemn them and to side with Jesus. But if Jesus were physically present in our world today, would we as church people be comfortable if he spent his time with cheats and swindlers, sexually deviant individuals, gays and lesbians? Would we not be infuriated if he constantly went to their dinner parties and didn't come to ours?
If Jesus were here today, anyone familiar with the Gospels would expect Him to spend his time "with cheats and swindlers, sexually deviant individuals, gays and lesbians", and would not be uncomfortable with that in the least. What Jesus did was come to save sinners, as He Himself explained. Does one think that Jesus' method of saving them was not to preach to them about giving up their sins and leading a better life? For the author of the article just quoted, all the Gospel is about is reveling at dinner parties with loose people.

"But Jesus accepted them as they were," he says, "and was freely having dinner with them without requiring that they first clean up their lives." That is simply being dishonest with oneself. No, of course, Jesus did not tell the taxpayers, prostitutes and usurers with whom He dined: "First renounce your ways, then we can sit down to eat." Eating was a form of shared fellowship, a way of allowing the sinners to come into contact with all that is good and holy, and of creating in them the inward desire to model Christ in their lives. We have no details of how He changed these people---other than Zacchaeus and Matthew (who may have been the same person as Levi), which should be enough for any thoughtful reader---but we know what His message to them most certainly was. He said it plainly to the woman whom he saved from stoning: "Go, and sin no more."

Remember the most important of all of Jesus' sayings in the passages quoted above: "Go and learn what this saying means: I want mercy and not sacrifice." This is a reference to the Old Testament, Hosea 6:6, where the Hebrew word checed (pronounced kheh' sed) can be translated both as "mercy" and "faithfulness". Jesus, stressing the former meaning, sat and ate with sinners to show them God's mercy in living form. He was not interested in false or feigned repentance, any more than the God of whom Hosea was speaking desired a sacrifice that was not accompanied by the required moral submission, which signified the worshiper's faithfulness, or a sincere intent not to sin again. In the NET Bible, there is a substantive note which explains Hosea 6:6 as follows (I have added the bold for emphasis):
Contrary to popular misunderstanding, Hosea does not reject animal sacrifice nor cultic ritual, and advocate instead obedience only. Rather, God does not delight in ritual sacrifice without the accompanying prerequisite moral obedience (1 Sam 15:22; Pss 40:6-8; 51:16-17; Prov 21:3; Isa 1:11-17; Jer 7:21-23; Hos 6:6; Mic 6:6-8). However, if prerequisite moral obedience is present, he delights in sacrificial worship as an outward expression (Ps 51:19). Presented by a repentant obedient worshiper, whole burnt offerings were “an aroma pleasing” to the Lord (Lev 1:9, 13).
It is simply dishonest, therefore, to read the call of Jesus to fellowship with Him without the accompanying demand for genuine repentance and mending of sinful ways. The analogy to tax collectors does not serve the LGBT community's contentions in the least; instead, it underlines how they are selectively reading the Gospels.

And so we come to the final point of the analogy: Being a tax collector as such did not qualify Matthew to become a disciple---instead, his life as a tax collector was an obstacle to his being one of the Lord's followers, until he gave it up. In just the same way, having a homosexual orientation does not qualify one to be a priest, or to have one's same-sex union receive the Church's (as opposed to the State's) blessing. Just as in Matthew's case, it will be an obstacle to being a minister of Christ until the sinner repents and agrees to sin no more---i.e., agrees to remain celibate while serving as a priest. The strong resistance to this conclusion I see on the part of LGBT's is, as I said earlier, a confusion of categories: it confounds a predilection for a way of life (a greedy tendency to extort money, in the case of tax collectors) with a calling to minister for God in (or through) His church, as a faithful servant of the Lord. The former does not entitle one to be the latter---the two roles, indeed, are mutually inconsistent.

The only way for non-celibate LGBT's to evade the force of this argument is to declare outright that sex outside the covenant of Christian marriage is not a sin, or else that Christian marriage itself is a relationship that applies to more than just a man and a woman. Either way involves a violence to tradition that should give any rational person pause, because once the old concepts are redefined, there remain no limits to redefining them again, and again, and again, as convenient. (If active homosexuality is not a block to ordination, then logically neither is polygyny or polyandry, or incest; and if the Church can marry gays or lesbians, it could equally well bless bigamy, or polygamy, or incest.)

While I recognize, as I say, the right of a civil society to extend full equality to LGBT's in accordance with its democratic processes, it is limited in doing so only by the terms of its constitution. "Full equality" in the civil context does not translate into a religious context, because no one has any "civil rights" before God. All are sinners, and all are equally deserving of condemnation but for His saving Grace. There is and can be no "discrimination" in the religious context, because it is God and God alone Who determines who shall be saved. No one of us has a "right" to be ordained, or even to be called, to His ministry--- again, it is a confusion of Who is in charge to argue so. 

(Indeed, TEC's current canons, such as Canon I.17.5, exhibit this same confusion. By listing a whole series of factors that are not to be used in denying to any person "rights, status or access to an equal place in the life, worship, and governance of this Church", including "sexual orientation," the canons confuse God's qualifications for the ministry---repenting of one's sins and promising to lead a new life in Christ---with earthly ones. Again, no one has "rights" or "status" before God, and the only access we have to an "equal place" before God is that we are all sinners in His hands.)

The Church has to stop modeling secular society when it comes to entertaining dialogue about who can be priests. The confusion in categories is overwhelming and obscuring its mission. By all means, let us kneel down together at communion---tax collectors, LGBTs, lawyers, journalists, bloggers, and all the other sinners among us. (Have I left anybody out? Just add your own profession.) Let us all together pray and work for our betterment as Christians; as I say, Jesus demands of us no less. But just as He did not allow His disciple to continue in his life as a tax collector, let us not allow the life of LGBTs to define the life of the Church.
Posted by A. S. Haley at 1:43 PM 6 comments

Thursday, August 14, 2008

On the Gulf That Separates Us

As many of you can tell from looking at the links to the right, I like to survey many viewpoints in the process of deciding what to write here. Up until now, I have not added any of my own observations about the significance of the 2008 Lambeth Conference. In the course of reviewing the comments of many others on the Conference, however, I am once again struck by the wide degree of difference they exhibit. Earlier, I wrote about “The Gulf That Divides Us”; now I want to take note of “The Gulf That Separates Us.” In other words, we probably could all agree on what are the issues that divide us—that cause all the controversy and disagreement with one another. But I am not so certain that we are aware of the degree to which the Weltanschauung, or “world-view,” of each side evinces the separation that is between us.

Let’s begin with the following observations by the Anglican Scotist. He is assessing what “sacrifices” will be needed, if any, in implementing the moratoria called for by Archbishop Rowan Williams and the Windsor Continuation Group at Lambeth:
There is simply no sense in turning our advantages in political power and moral theology into more self-righteous hypocrisy; the church has plenty of that as it is. Abusing our power will not leave us happy in the end. Perhaps it is worth considering whether we should take on the poverty [++Rowan] Williams requires of us, whether we should take on this poverty even if it should bring mourning with it, even as the thirst for righteousness goes unabated. The last bit from the quote above grabbed my attention: it seemed to imply poverty of spirit can go with the prophetic calling. There is no inconsistency between answering the prophetic call and the moral standard of the Beatitudes.

In plain English that must imply consenting to the moratoria does not mean betraying our gay brothers and sisters. Though it seems impossible, foolish even to try—like the camel going through the needle's eye—nevertheless there is a way, there must be a way.

When the disciples heard this, they were greatly astounded and said, ‘Then who can be saved?’ But Jesus looked at them and said, ‘For mortals it is impossible, but for God all things are possible.’

From my own viewpoint I can readily concede that the Scotist’s side has the current political advantage: there is no one more dedicated than Louie Crew is to seeing to it that supporters of LGBT rights are elected as deputies to General Convention, and I have already written about the liberal ghost that even yet haunts our House of Bishops. But “advantages in moral theology”? This seems to me mere wordplay, a stringing together of concepts that do not reveal the writer’s underlying thoughts. (For example, what would an “immoral theology” look like?) The Scotist’s further remarks seem to indicate that he is claiming a moral superiority for those whose theology includes LGBT civil rights to be married and ordained:
Again, in plain English, here are some tentative suggestions about what this might come to in concrete terms: at the very least, the work of building a case for the actions of GC2003 should continue. And we might well admit that the theological case for those actions can be made better, clearer, more persuasively. If the rest of the Communion is to brought over to our side—seeing that right wing assistance from the developed world will not soon abate—the making of a more cogent case should be a priority.

Then we should also bring agitation for civil rights for gays in Nigeria et al to the fore; that issue should receive a much higher profile in the affairs of the Communion. And there will be sacrifices—as when pastoral affairs at the parish level grind against moratoria at the Communion level. Father Dudley is something of an icon here—it being safe to assume the CoE sets a tenable pattern for unofficial, parish-level rites around blessing SSUs. The real sticking point will be around the election of another partnered gay bishop. Still, it seems there may be a number of ways forward; e.g. the bishop is gay, but becomes partnered only some time after election. There is no logical inconsistency here that should prevent assent to moratoria.

The Communion qua institution will see things as an institution, but it is surely true that the life of the church is largely outside the bounds of the necessary institution, and it is there we might find the life of the Spirit, in a type of exile looking forward to the day when institution and Spirit are brought closer together. It will take a lot of work.
Whoa, Scotist—you just jumped the tracks. First, you suggest that the “theological case” for consecrating a partnered gay bishop needs to be “made better, clearer, [and] more persuasively.” But I thought you before had claimed to have a morally superior position with that theology. (Is the problem just that you have not articulated it clearly enough so that everyone can perceive just how superior it is?)

Next, you suggest that there be “agitation for civil rights for gays in Nigeria”—right after you concede that “right wing assistance from the developed world will not soon abate.” Presumably you would acknowledge the strong cultural taboo against homosexuality that is ingrained in many African countries, including Nigeria, and which unites their Anglicans in opposition to the TEC agenda, along with the "right wingers" in the developed world. But do you really think that marches for gay civil rights could occur in present-day Nigeria just as they once did for blacks in Birmingham and Montgomery? And whom are you nominating to organize and lead those marches?

Then, you offer a means for skirting around the moratorium on gay consecrations: just have the bishop marry his partner after he receives his miter. That hardly seems to be claiming the moral high ground, does it?

You conclude by indicating the problem is that the Holy Spirit is “in exile” from the institution which the Spirit is supposed to be leading, and that it will take a “lot of work” to bring them together again. Now I’m really confused, because I thought that with your “political advantage” in the Church, and leading it with your advantage in “moral theology,” you were claiming the right to lead the Church because the “Holy Spirit” was guiding your every move! So how can the Spirit be at one and the same time leading the Church and in exile from it?

What I take from this contradictory presentation is that according to the Scotist, his crowd is firmly in control of TEC, but they have “a lot of work” to do to counteract the “right-wing” forces, both in the developing world as well as here in the United States, who are determined to oppose their “Spirit-led” and morally superior program. So his message is: “Roll up your sleeves, and let’s get to work! We’ll organize some civil rights demonstrations in Nigeria (well, maybe here in the United States, then), we’ll slip a few gay bishops by them who don’t disclose their relationships until after they’ve been consecrated, and in the meantime, we’ll articulate some really superior version of our already morally outstanding LGBT theology, which will show up those right-wing aborigines for the fundamentalist numbskulls they are.” (OK, I’ve taken some satirical license here, but you get the point.) Notice that this worldview is all about TEC; although the Scotist’s post focuses on what should happen in the aftermath of Lambeth, the rest of the Communion, and Archbishop Williams himself, are there just as obstacles to be overcome:
Many on the Anglican left who supported GC2003 or the like have, in fact, followed Williams up onto the high wire, remaining within an institution lurching rightward in hope of something better coming in the future: extending the reforms of GC2003 et al would be all that much harder were the Anglican Communion to split. "Moratoria or marginalization" is clearly the message, whether it can be enforced or not.

This sort of message is not too surprising from Williams. He is not sympathetic to political liberalism, and although there is an element of liberation theology in his work, he does not seem to have been formed by anything analogous to the Civil Rights movement in the US—which seems to me to have decisively impacted the moral sensibilities of Episcopalian bishops. Liberation themes in his work—I have Resurrection in mind—could well indicate Williams will not tolerate acting so as to cast off provinces in the developing world, come what may, even if their primates and policies are offensive for one reason or another. He would rather call for sacrifice and toleration from the developed world than lose them—and from a certain scriptural point of view that kind of strategy is cogent.

That is to say Williams intentionally burdens the Episcopal Church, Canada, and any province sympathetic to GC2003 et al with the task of bringing the other provinces "on board." He simply will not assist; it is not in his job description, and it would risk driving away just the provinces with which he most wishes to keep in communion.


Got it? The Anglican Communion is the problem, not the solution, because it won’t repeal Lambeth 1998 Resolution 1.10, and because it won’t sign on to our program. Now let’s look at a spokesperson for the opposite side, the esteemed Baby Blue, in a comment she left over at StandFirm:

One of the things Rowan said at the final press conference is that he is going to be contacting those GAFCON bishops who were not at Lambeth directly, to listen to their views regarding the topics covered at Lambeth. He is not going to wait for them to come to him - he’s going to straight to them. Again, this has infuriated the progressives in TEC who see those bishops as having opted themselves out of the Communion.

Oh, they’ve opted themselves out, but not from the Communion but from control by the long arm of TEC, as the TEC leaders found out when the Sudanese bishops drew a line in the sand in the early days of the Lambeth Conference. It was a wake-up call for those bishops to discover first hand that TEC is of a different mind on scriptural truth and moral life than they could have ever imagined. It was clear that they drew back once that was made clear and Rowan seems to have sided with them in the end.

And the GAFCon bishops and primates are the embodiment of the proverb that the enemy of your enemy is your friend, at least for Rowan Williams. It was clear that TEC and even the ACC office were running a different communications offensive than Rowan Williams and his Lambeth team. The fact remains that the Lambeth Communications team put up more conservative/moderates than the TEC team did—their team basically gave us a steady diet of one progressive after another. The conservative Episcopalians, upon realizing they would not be invited by the TEC apparatus, then began instituting their own press conferences to counterbalance the one put on by 815.

Jesus said we should be gentle as doves and cunning as serpents. Often we side with one of those and not do both. We [often] go [so far] overboard in our gentleness that we are shocked by the tactics of our opponents. And sometimes we are so cunning that we become cynical and hard-hearted and can’t see when those we thought were lost are found.

Finding a way to do both—being both smart and kind—is a full-time endeavor. For Rowan Williams, he has been wounded deeply by this development, a development that his weary staff seemed unprepared to handle. But TEC has been right there, running a first-line offensive and we should remember that, lest we suddenly find ourselves inadvertently and suddenly engaged in friendly fire at the wrong person.

For BabyBlue, as with the Scotist, tactics are important: in the Gospel to which she refers, Jesus says: “I am sending you out like sheep surrounded by wolves, so be wise as serpents and innocent as doves.” But the vantage point of her world-view is from a wholly different perspective: it is from the standpoint of the Anglican Communion as a whole. And far from being seen as an obstacle to progress, the Archbishop of Canterbury is viewed as being besieged by all the forces that are vying to reduce him to a tool for their purposes. The key to his survival, she says, lies in his accommodating the GAFCON primates in their struggle to work themselves free of domination by TEC and its allies—in recognizing that TEC is really his enemy, and that as another enemy of TEC, GAFCON is ++Rowan’s best friend at this juncture in the Communion.

I think this juxtaposition of two viewpoints is illuminating, not just from the perspective of one side or the other. It tends to show that TEC is in a struggle to maintain the historical domination—in terms of finances, number of bishops, and dictation of agenda—it has enjoyed in the Anglican Communion. That domination was challenged at Lambeth 1998 in a way that TEC’s leadership considered shocking, and having shown what they thought of Lambeth at GC 2003 (and again at GC 2006), they went to Lambeth 2008, well-furnished with talking points and misinformation, determined to win converts to their view by any means possible. They now see the Archbishop of Canterbury as having temporarily thwarted their plans with his indaba groups and his refusal to allow any resolutions to be voted upon, and they are determined that he shall be marginalized for the future. So they do not see Lambeth 2008 as a loss, or a defeat—instead it serves only as regrettable evidence that the Communion is an “institution lurching rightward,” as the Scotist has it. Far from being a setback, Lambeth 2008 serves as a rallying cry to the troops: it calls for “a lot of work” and for sharper, cleverer tactics: “Though it seems impossible, foolish even to try—like the camel going through the needle's eye—nevertheless there is a way, there must be a way.”

And in the end, it may even call for giving up on the Communion, and walking apart from it, even though “extending the reforms of GC2003 et al would be all that much harder were the Anglican Communion to split.” (I have added the italics to highlight the point of view here.) But if that is where the “Holy Spirit” takes us, says the Scotist, so let it be: “. . . it is surely true that the life of the church is largely outside the bounds of the necessary institution, and it is there we might find the life of the Spirit, in a type of exile looking forward to the day when institution and Spirit are brought closer together.”

The only question that remains, it would seem, is how long it will take for the two sides to come to the realization that they are actually walking apart, and that they have been doing so for some time now. Probably that realization will come with the battle to adopt a covenant: TEC has signaled that it will accept only a covenant that is descriptive, and not prescriptive. But that time is at least ten years off, and so it may come sooner, over a breakup of the Primates' Meeting, the formation of a new North American Province, or even over a matter of financing the Communion’s deficit. What is certain is that if TEC cannot mold the Communion to its will, it will cast the Communion aside as outdated and irrelevant to its purposes. It will then form its own mold and invite other progressive churches to join it. There is no longer—and many have been saying it for years now—any other path for TEC to take. The gulf that now separates it from those who hold fast to the teachings and traditions handed down to the fathers is unbridgeable. Congratulations, ++Frank: you and your cohorts have listened with your heart, and your "vast and diverse center" may at last have coalesced into something with a mind of its own. Like the ancients' concept of a planetes, or "wanderer", that strayed randomly through the heavens, TEC has left the Communion which used to revolve around it, from which it used to derive its identity and purpose, and is headed off into the void for parts unknown.
Posted by A. S. Haley at 1:09 PM 4 comments

Saturday, August 9, 2008

Pittsburgh Fights Back

In a previous post, I described the Supplemental Petition filed by Calvary Church in Pittsbugh against the Diocese of Pittsburgh and its Bishop, the Rt. Rev. Robert Duncan. The Supplemental Petition, which was based on an earlier court-approved Stipulation between the parties, sought (among other things) the appointment of a monitor to oversee the use and expenditure of all diocesan funds, including specifically to see that no diocesan funds could be spent in defending itself against Calvary's lawsuit! (By requesting that the Monitor approve all Diocesan expenditures, the plaintiffs were also seeking a back-door injunction against the use of any funds to allow the vote, scheduled to be taken next October 4 at the annual Diocesan Convention, to amend the diocesan Constitution and Canons in order to remove the Diocese from Province III of The Episcopal Church.)

As expected, the Diocese and its Bishop have now responded to the Supplemental Petition, and pointed up the glaring unlawfulness of its requests. Their answer first quotes the various paragraphs of the Supplemental Petition, and either admits or denies the allegations in each paragraph. The meat of the response is contained in the answer given to the very first paragraph of the Supplemental Petition, which had alleged:
1. On October 14, 2005, this Court entered, pursuant to Stipulation of the Parties, an Order (the "Order") prohibiting Bishop Duncan and the other defendants from taking real and personal property ("Property") held, or administered, by the Diocese with them outside the jurisdiction and authority of the Episcopal Church in the United States of America ("The Episcopal Church"). (See Exhibit 1, Transcript of Hearing of March 17, 2004, pp. 60-63, where this court discussed this eventuality wherein Bishop Duncan has abandoned The Episcopal Church but continues to use the assets.) Property subject to the Order has an estimated value in excess of $23 million. Notwithstanding the Order, Bishop Duncan and his compatriots have openly and actively pursued their plan purportedly to separate the Diocese (and Property it holds or administers) from The Episcopal Church, and Bishop Duncan cannot now credibly contend otherwise.
Thus according to the petitioner Calvary Church, nearly three years ago Bishop Duncan and his Diocese entered voluntarily into a stipulation, approved by the court, that the Diocese would not remove any diocesan real or personal property "outside the jurisdiction and authority of the Episcopal Church." Let us look at paragraph 1 of the Stipulation and see what it says:
Property, whether real or personal (hereinafter "Property"), held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter "Diocese") for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held or administered by the Diocese regardless of whether some or even a majority of the parishes of the Diocese might decide not to remain in the Episcopal Church of the United States of America. For purposes of this paragraph, Property as to which title is legitimately held in the name of a parish of the Diocese shall not be deemed Property held or administered by the Diocese.
Are we clear now? This paragraph simply provides that the Diocese of Pittsburgh, presently part of the Episcopal Church, shall continue to hold and administer Diocesan property on behalf of the Diocese regardless of the number of individual parishes that choose to leave the Episcopal Church. Is there anything in this paragraph about the Diocese itself agreeing not to leave the Episcopal Church? Not in so many words. Calvary Church, however, cites this exchange which took place on the record at a different hearing that was held more than a year after the Stipulation had been approved (see Exhibit A to the Supplemental Petition---hearing on December 22, 2006 on Request for Expedited Discovery):
Counsel for Diocese [addressing the Court]: . . . [Y]ou've indicated that you are not interested in engaging in ecclesiastical debates. And what we seem to have here based on the---

The Court: Not only am I not interested, I am not capable of entering into that ecclesiastical debate.

Counsel for Diocese: What we have here today entered into in October [2005] was a stipulation, court-approved, about the property. That's what we really should be talking about.

The Court: There's more in the stipulation than that. There's discussions of withdrawal and how parish churches can withdraw, how they go about it, delivering notice. There's lots of things, terms of any disaffiliations. All these things are delineated here. Recognizing that creating---as I said in the transcript, you create a parallel organization and stay in the church, in the buildings. Mr. DeForest's clients [Calvary Church] are concerned that you are using their facilities [sic---no one is claiming, as far as I can tell, that the Diocesan facilities belong to Calvary Church!] without having formally transferred them in title and are not affiliated with the Episcopal Church in North America which has title to the property. So, yeah, they are intertwined. The rightness and the wrongness of who's withdrawing and who's staying is irrelevant to me, but the fact that somebody is withdrawing is relevant because now you are in the facility that belongs to the Episcopal Church of North America and you are no longer affiliated with the Episcopal Church of North America. If that is discovered to be true, then you violated the terms of the consent order and there's a question whether the churches are evicted, will have to pay rent or some other remedy which Mr. DeForest's clients would have. Simply passing title is not the only thing that violates the intent of this stipulation.
This is a good example of how a court's remarks should never be lifted out of context---in this case, from a hearing held on a motion to expedite discovery. I have bolded the parts of the court's remarks on which Calvary Church and its attorneys are relying. In them, the Court seems to have decided already that it will apply the Dennis Canon to the question of  who owns the parishes' property. (Remember that the Dennis Canon says nothing about ownership of Diocesan property.) Then the Court jumps to the conclusion that because of the Dennis Canon, the property belongs to the national Church---a conclusion that would surely come as a surprise to the parishes in question. And from that conclusion, the court leaps to yet a further unsupported assertion---that a transfer of parish property would violate the terms of the Stipulation. Thus it is no wonder that to support their reading of the Stipulation, Calvary's attorneys cite no language from the Stipulation itself, but only the interpretation of it given in another context by the Judge hearing the case.

To be fair, it does not appear that the Judge had the language of the Stipulation in front of him when he made these remarks, although he certainly evidenced a familiarity with its subject-matter. But if you look back at the actual language of paragraph 1 quoted above, you will see that it quite plainly does not address the issue of the departure of the Diocese from The Episcopal Church. The only way for such an interpretation to be implied would be if one read the descriptive language "held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America" to be actually prescriptive in intent---that is, such property shall not only continue to be held or administered by that Diocese, but that the Diocese itself shall not act so to change its status as a Diocese of the Episcopal Church.

If the latter interpretation is what Calvary Church's attorneys are really arguing, then it is plain to this attorney that they do not appreciate the limitations imposed by the First Amendment on any such contention.  In the first place, neither Bishop Duncan nor the Diocese's attorneys could properly agree on behalf of the Diocese itself to any such limitation on its powers freely to amend and change its Constitution and canons. (The Stipulation shows that it was entered into only by the respective attorneys; neither Bishop Duncan nor anyone else connected with the Diocese signed it.) To impose such a limitation would itself have required that amendments be duly passed at two successive Diocesan conventions, and that simply did not occur.

But in the second place, any such limitation on the power of a Diocese to choose with which organization it shall affiliate would, even if properly adopted, violate the group's freedom of association under the First Amendment. It would be saying that this group of Christians known as the Diocese of Pittsburgh shall never be free to associate with any entity other than The Episcopal Church, and given the fact that the Church is a creation of the original colonial dioceses who came together to organize it, and the dioceses are not the creation of the Church, the contradiction inherent in any such limitation should be manifest. 

Needless to say, therefore, if this is the basis on which Calvary Church intends to argue that its "Stipulation" prevents the Diocese from enacting the proposed changes to its Constitution and canons on October 4, I cannot see how its argument could carry the day. And if Calvary intends to invoke the Dennis Canon, then apart from the fact that the Canon does not even apply to Diocesan property, the problem is that Calvary itself has no standing to invoke it: the Dennis Canon benefits the Diocese of Pittsburgh and TEC itself, not individual parishes. TEC is not a party to Calvary's lawsuit, and so there is no one before the Court with standing to invoke a violation of the Dennis Canon, even if an individual parish (also not before the Court) were to vote to leave TEC along with the Diocese. 

With these remarks as background, now let us have a closer look at the Diocese's response to paragraph 1 of the Petition:
ANSWER: Admitted in part and denied in part. Defendants admit the Court entered an Order approving the Stipulation on October 14, 2005 (the "Stipulation and Order"). Defendants specifically deny Plaintiffs' characterization of Bishop Duncan's actions, and state that no action has been taken contrary to or in violation of the Stipulation and Order of Court by or on behalf of the Episcopal Diocese of Pittsburgh (hereinafter "Diocese") with respect to the estate, real and personal, which it holds or administers for the beneficial use of the institutions and parishes in the Diocese (hereinafter "Property").

With respect to "the jurisdiction and authority of the Episcopal Church" and Exhibits 1 and 2:
     a. The Episcopal Church ("TEC") is a federation of Dioceses. The Diocese of Pennsylvania (of which the Diocese is a part) existed before TEC. . . .
     b. The members of TEC are the Dioceses, not parishes or individuals. The parishes of the Dioceses are members of the Diocese, and individuals are members of parishes.
     c. The TEC Constitution does not prohibit withdrawal of a Diocese (and its property) from TEC.
     d. The Diocesan Constitution does not prohibit withdrawal of the Diocese (and its property) from TEC.
     e. There is no requirement in the Constitution or Canons of TEC that any change in the Constitution of the Diocese be approved by TEC.
     f. The so-called Dennis Canon, by its explicit terms, does not apply to Diocesan property.
It is indubitably true that "no action has been taken contrary to or in violation of the Stipulation": the controversial vote will not occur until October 4. And for the reasons given above, the First Amendment, as well as the lack of restrictions in TEC's Constitution and in Pittsburgh's Constitution, mean that the Court cannot lawfully prohibit the Diocesan Convention from voting on the changes. The Answer goes on to make the point that the real dispute is not between Calvary and the Diocese of Pittsburgh, but between TEC and the Diocese:
     e. If the Resolution passes, as previously stated by counsel for Plaintiff, it is expected that TEC will: 1) challenge the validity of the Resolution; 2) challenge the right of the Diocese to leave TEC; 3) create a competing "Diocese" to claim the property; 4) challenge the right of the Diocese to call itself the Episcopal Diocese of Pittsburgh; and 5) challenge the status of Bishop Duncan as Bishop of the Diocese. (Indeed, TEC has done this following the withdrawal of another Diocese [San Joaquin] from TEC. That litigation is pending.)

     f. The "real" dispute is not between the Diocese and Calvary. The real dispute is between TEC and the Diocese. The Diocese has attempted to negotiate a settlement with TEC, but TEC has instead insisted on an "all or nothing" approach. Litigation by TEC is the proper forum to determine all of these questions and any property claims of TEC. In the interim, Defendants are willing to enter into a standstill agreement that there will be no transfer of any real property and that all expenses will be in the normal course of business, including counsel fees. [Footnote omitted.] 

     g. The Stipulation and Order does not refer to these many issues, now being litigated by TEC against another Diocese. Rather, the Stipulation and Order is directed to individual actions by parishes, such as disaffiliation from the Diocese. In particular, and without limitation, the Stipulation and Order does not (nor could it) adjudicate the right of the 400 lay deputies and clergy at the Diocesan Convention to exercise the right of the Diocese to leave TEC for theological reasons.
I have bolded the portions of this Response that (a) raise the defenses mentioned above, and (b) tell us something new, namely, that the Diocese has offered to negotiate a settlement with TEC, but has been met with a response of "It's all or nothing." (TEC is playing the same high-stakes game in San Joaquin.) It is also news that the Diocese is willing to stipulate to a standstill agreement---which to be effective, however, would require TEC's joinder in the lawsuit.

The Answer further discloses (in response to paragraph 3 of the Supplemental Petition) that Bishop Duncan's recent formation of a Pennsylvania corporation called "the Episcopal Diocese of Pittsburgh" had a pre-emptive purpose: it "was created in April 2008 (not for the transfer of any property but to protect the name of the Diocese from a competing claim to that name by any entity formed by TEC)." The news that such an entity had been formed had occasioned rumors that Bishop Duncan was up to some nefarious purpose; it turns out that he was simply several moves ahead of TEC in the chess game.

Continuing to misread their own Stipulation, Calvary's attorneys reiterate their allegations of wrongdoing in paragraph 5, and utterly without any shame, throw in the fact that TEC intends (illegally!) to depose Bishop Duncan in September for "abandonment of communion": 
5. Bishop Duncan's efforts to separate the Diocese (and the Property it holds or administers) from The Episcopal Church have continued not only in the face of this Court's Order, but in the face of ecclesiastical proceedings anticipated to occur this Fall to permanently remove him as a bishop of The Episcopal Church and head of the Diocese. As set forth more fully hereinafter, a Review Committee established by The Episcopal Church . . . has already certified to the Presiding Bishop of The Episcopal Church that Bishop Duncan has "abandoned the communion" of The Episcopal Church. . . .
Could any more than this paragraph alone be needed as proof of the deliberate falsification by TEC's liberals of its Canons? Given the plain text and history of Canon IV.9, these allegations are nothing short of astonishing. To begin with, Calvary's attorneys do not inform the Court that the Presiding Bishop did not obtain consent to inhibit Bishop Duncan, and that hence, under the plain text of the Canon, he is not liable to deposition. (Canon IV.9 reads in pertinent part: "Unless the inhibited Bishop [makes a satisfactory response to the Title IV Review Committee charges within 60 days], the Bishop will be liable to deposition.") Even worse, they predict to the Court that TEC's bishops will proceed to disregard the Canon's language entirely and illegally pronounce him deposed in September. (And see this report, which appears to bear out the attorneys' prediction of what the House of Bishops will in fact do, regardless of what objection is made, or what the Canons say.)

But worst of all is the allegation that Bishop Duncan was charged with "abandoning the communion of The Episcopal Church," based on charges (instigated again by the Calvary crowd) that he planned to have his Diocese withdraw from TEC. Forget the Anglican Communion of which TEC pretends to be a part; the only Communion that matters to TEC's liberals is its own. Never mind, yet once more, that this reading is directly contradicted by the language of Canon IV.9, which defines "abandonment of communion" as, among other things, "formal admission into any religious body not in communion with [this Church]." Thus, by definition, for the Diocese of Pittsburgh to join a province like the Southern Cone---with which TEC has never declared itself out of communion---cannot be "abandonment of the communion of this Church" under the Canon.   

But do Calvary or its attorneys care for what TEC canon law actually says? Are they being candid with the Court when they imply that the proceedings against Bishop Duncan are fully in accord with TEC's canons? Evidently not, and what is amazing is that they fully expect to get away with it.  

Bishop Duncan's response to these allegations is far more reasoned and moderate than mine (but then, can a curmudgeon do any less?):
ANSWER: Denied. This allegation is premature. If and when TEC takes action against Bishop Duncan, the Bishop will determine whether to challenge that act as in violation of the Canons of TEC and/or a denial of due process. . . . Moreover, TEC does not have a valid claim to "the Property." Plaintiffs are improperly construing the Stipulation and Order as giving TEC greater rights tha[n] it actually has. The alleged property rights of TEC are not referenced in the Stipulation and in any event, are not defined. Yet Plaintiffs now claim that TEC owns all Diocesan and parish property. Such construction of the Stipulation and Order would deprive the Diocese and the parishes of their right to have TEC's claim(s) adjudicated in a proceeding brought by TEC. . . . TEC is not a party to this litigation. The Stipulation and Order do not pertain to or in any way address the rights and obligations, if any, of TEC. . . .
I have barely scratched the surface of what is wrong with Calvary's Supplemental Petition. If you want more, look at how they deliberately misread Paragraph 2 of the Stipulation (dealing with the withdrawal of parishes from the Diocese) when they allege in paragraph 9 of their Petition that "Paragraph 2 of the Order precluded separation from The Episcopal Church of Property specifically held for or in the name of parishes within the Diocese . . .". (That sentence contradicts itself---it claims that property held by the Diocese for its parishes could not be conveyed away from TEC. If it is held by the Diocese, in trust for its parishes, then it cannot be held by TEC! The plaintiffs are confused about the Dennis Canon, which provides that property held by parishes shall be deemed to be held in trust for the diocese and for TEC. (Admittedly, the Canon purports to override existing trusts when it says that property "held 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." Obviously TEC has no power by Canon or otherwise to amend a trust document to which it was not a party in the first place.) Finally, in paragraph 21 Calvary announces that they have cost the Diocese thus far $750,000 in legal fees in defending against their nonsensical claims, and then has the gall to allege that that money was wasted in being spent for that purpose!

(If you do read the entire Answer, be sure to read the New Matter beginning at page 19. Here Bishop Duncan and the Diocese set out the objections to Calvary's position that I have sketched in my introductory observations above, as well as even more grounds that I have not mentioned.)

I do not know which makes for more desultory reading: the Supplemental Petition itself, or the comments on the Diocese's response at Lionel Deimel's blog, which he titles "Lies and Dodges." He evidences the mindset of Calvary's Petition when he takes it for granted that the original Stipulation was a commitment by the Diocese not to leave TEC, and does not even ask how such a commitment could be binding on an entire group governed by its own Constitution. Listen to him complain:
Throughout this section, defendants argue that the stipulation is not relevant. In the following section of the defendants’ filing, they suggest that it was defectively drawn. It was, of course, the agreement that Calvary was able to extract from the defendants. The defendants also assert repeatedly that no offenses have yet been committed by the defendants. Calvary, on the other hand, points out the statements Duncan has made and the steps he has implemented to effect his plan to take the diocese outside TEC. What an irony it is that a bishop so fond of referring to the “plain meaning” of scripture insists that the court ignore the plain meaning of his own statements and actions! Repeatedly, the answers given by the defendants begin with: “Admitted in part and denied in part.” In many cases, this simply means that they admit that a statement was made and is properly quoted, while they deny the obvious implications of the text.

A worrisome statement appears on page 6: “If and when TEC takes action against Bishop Duncan, the Bishop will determine whether to challenge that act as a violation of the Canons of TEC and/or a denial of due process.” The House of Bishops should take note.
Apparently, the idea that Bishop Duncan might actually challenge the legality of the proceedings against him is "worrisome." And well it ought to be, Mr. Deimel. But then you conclude with this confession:
As an intelligent, rational human being, I find the defendant’s filing to be mostly nonsense. It is impressive, however, that one can argue for the indefensible with such sincerity and surface credibility. So many of the arguments made are defective, but establishing the fact requires a long chain of reasoning. Just how judges keep trac[k] of such logic I do not know. I hope Judge James is good at it. That said, I have to repeat that I am not a lawyer, and there are certainly legal arguments here that legitimately may carry weight.
So here we have an ultracrepidarian admission, of sorts, that Mr. Deimel might possibly be out of his league. I would urge him to get the advice of a good, disinterested attorney who is knowledgeable both about First Amendment law and about TEC's canons. If he is supporting Calvary's lawsuit with his wallet as well as with his blog, Mr. Deimel might just be in for a surprise. However, now comes my caveat:

I see, from reviewing the docket in this matter, that the issues raised in this latest round of pleadings are not new. In December 2006, the Calvary plaintiffs filed a 315-page Petition for Enforcement of Settlement and Order. (Expect to wait a while for the download if you click on the link---the Petition itself is just sixteen pages, but attached as an Exhibit are the complete 270-page edition of TEC's Constitution, Canons and Rules of Order, with index!). This Petition argued many of the same points as does the Supplemental Petition, but is based on events just through the end of 2006. The Defendants answered and pled additional New Matter, just as they have done in their current filing. They also demanded a trial by jury, which the plaintiffs subsequently moved to strike, on the grounds that the demand came too late and that jury trial had been waived in the original round of pleadings filed in 2003. In February 2007, Bishop Duncan and the Diocese filed a motion to dismiss the Petition; after full briefing, which again raised many of the same issues being argued today, the Court on May 8, 2007 denied the motion in a one-sentence order giving no reasons (look at the second page of the link). Afterwards the defendants were granted leave to file an amended New Matter to their prior answer, to which the plaintiffs responded in July 2007.  There the matter sat until the plaintiffs filed their Supplemental Petition in July of this year.

The Court has now scheduled a hearing in the case for September 8,
to resolve issues raised in the above pleadings, including but not limited to: 

1. Request for appointment of a Monitor;

2. Request for creation of escrow accounts;

3. Plaintiffs' motion to strike request for a jury trial [filed January 29, 2007!].
Given this extensive prior history of the case, and the fact that no new legal issues are raised in the latest round which were not already before the Court on the earlier motion to dismiss, the denial of that motion without any reasons being given has to be troubling to the defendants. That denial, plus the Court's apparent buy-in to the plaintiffs' argument based on the Dennis Canon as quoted in the excerpts of oral argument above, may indicate that the Court is genuinely of the belief that it can rule on TEC's claimed beneficiary interest in the Diocesan assets without (a) TEC being a party to the case, and (b) any language in the Dennis Canon itself properly giving TEC such an interest in any diocesan property. If such is in fact the case, I can only shake my head, and remember the response a wise old federal District Court Judge gave to me when I objected that if he ruled as he indicated he would in my case, it would force me to take an appeal: "Counsel," he said, "I just get paid to make decisions. The Ninth Circuit gets paid to make them right!" 


Posted by A. S. Haley at 8:44 AM 3 comments

Friday, August 8, 2008

Windsor Continuation Group: Let's Indaba!


Everyone has been talking about the Lambeth Reflections, the vapid summation of all the group indaba sessions. The Reflections have received appropriate criticism here, here and here, and I do not propose to add another critique. Instead, I want to take a closer look at what has been obscured in all the cloud of commentary, and that is an entirely different document that came out of Lambeth 2008. You may remember (or you equally well may have forgotten) that the Windsor Continuation Group (WCG), headed by the Most Reverend Clive Handford, retired Primate of Jerusalem and the Middle East, released for discussion midway through the Conference the full text of its "preliminary observations". (Parts 1 and 2 were released and discussed earlier; Part 3 was released and discussed on July 28.) For reasons I shall give below, I believe that the observations of the WCG are a far more important indicator of the current state of the Anglican Communion than are the Reflections. Unlike the latter, which will simply be filed away in the chronicles of Lambeth, and which are already on their way to a well-deserved oblivion, the observations are the first draft of what will eventually become a full-blown report and recommendations to the Primates Meeting, which will gather again in the first months of 2009. They represent the best current thinking on the actual problems that beset the Communion, and on the ways to go forward from where we now find ourselves. And for that very reason, as we shall see, one has to conclude, after making one's way carefully through them, that the Communion is in deep trouble. 

These were only observations, "offered to the Lambeth Conference for conversation and testing," the document says. It then asks: "Are they an accurate description of the current state of our life together?"

Let's consider what they say. In short, staccato fashion, the WCG describes the current crisis:
1. Where we are: the severity of the situation

a. The reality of our current life is complex; presenting issues are not always the issues that we are actually dealing with. Doctrine, theology, ecclesiology, ethics, anthropology, culture, history, political and global realities are all dimensions. There are competing value systems at work and a lack of clarity about a shared value framework.

b. Much has been undertaken in the Communion through and in response to the Windsor Process, but as a Communion, we appear to remain at an impasse. There is inconsistency between what has been agreed, and what has been done. A gap between promise and follow through [citing resolutions by General Convention 2006, TEC's House of Bishops, and by the General Synod and House of Bishops in Canada, and "undertakings and affirmations of the primates"].

The gap is manifested in:
* Inconsistency between the stated intent and the reality – including the use and abuse of language, e.g. moratorium, "initiating interventions".

* The implications of requests and responses are either not fully thought through or they are disregarded. The consequences of actions have not always been adequately addressed.
These generalities are followed by some specifics:
c. Breakdown of Trust

* There are real fears of a wider agenda – over creedal issues (the authority of scripture, the application of doctrine in life and ethics and even Christology and soteriology) and polity (comprehensiveness, autonomy and synodical government); other issues, such as lay presidency and theological statements that go far beyond the doctrinal definitions of the historic creeds, lie just over the horizon. Positions and arguments are becoming more extreme: not moving towards one another, relationships in the Communion continue to deteriorate; there is little sense of mutual accountability and a fear that vital issues are not being addressed in the most timely and effective manner.
This is the first description I have seen that equates the current controversies to arguments over "creedal issues." (In the original, the word is misspelled as "credal".) Upon reflection, however, I think the WCG has it right. We recite the Nicene Creed each Sunday, in which we affirm that Jesus' resurrection was "according to the Scriptures," i.e., in fulfillment of God's holy word. Those who argue that V. Gene Robinson was a proper candidate for episcopal honors have to deny, after all, what the words of scripture plainly say: "A bishop (or "elder") must be blameless, the husband of one wife (mias gynaikos aner---literally, "a man of one woman": Titus 1:6).

"Positions and arguments are becoming more extreme"---I don't know how the positions already taken could become more extreme, unless someone who is an avowed polygamist gets nominated for a bishopric. Arguments, however, are certainly becoming more extreme; some now contend that the Church of England would collapse if it did not allow gay priests---and that was by way of a response to the argument that it would collapse if it continued to allow them! The WCG continues its catalog of factors:
* Through modern technology, there has been active fear-mongering, deliberate distortion and demonising. Politicisation has overtaken Christian discernment.
"Modern technology" has simply brought more voices to the debate. The views have always been there, and no one is forced to read a Weblog. As for "politicisation overtaking Christian discernment," I suppose that would be a good phrase to describe the vote at GC 2003 to confirm Bishop Robinson, or the actions of former Presiding Bishop Griswold in going forward with his consecration immediately after joining the other Primates in sounding a warning not to do so.
* Suspicions have been raised about the purpose, timing and outcomes of the Global Anglicanism Future Conference; there is some perplexity about the establishment of the Gafcon Primates' Council and of FOCA which, with withdrawal from participation at the Lambeth Conference, has further damaged trust.
Yes, GAFCON did get everyone's attention---that was the point! And it was the point of the decision to stay away from Lambeth, as well. Are you listening now? If "trust" has been damaged by these actions, what would you say of the injuries that provoked them?
* There are growing patterns of episcopal congregationalism throughout the communion at parochial, diocesan and provincial level. Parishes feel free to choose from whom they will accept episcopal ministry; bishops feel free to make decisions of great controversy without reference to existing collegial structures. Primates make provision for episcopal leadership in territories outside their own Province.
"Parishes feel free to choose??" The parishes that I know of all felt compelled to leave; they were literally driven away by the bishops who made "decisions of great controversy without reference to existing collegial structures. " And as for primates "making provision" for episcopal leadership, it is more properly described as the only response possible to TEC's failure to institute meaningful alternative oversight, and the failure of the Anglican Panel of Reference to deal with the situation. The WCG concludes this section with some truisms ("There is distrust of the Instruments of Communion and uncertainty about their capacity to respond to the situation"), and then points out that the disagreements in TEC threaten to spill over into the wider Communion, and are causing difficulty with its ecumenical partners.

All in all, it is not a bad description of the current miasma, even if its attempts to sound neutral undermine its integrity. People can deal with the truth when it is spoken to them, and they usually appreciate the compliment that candor implies. The WCG met with the assembled bishops three times during the Conference, and hopefully it received the feedback that will enable it to develop a concrete plan from these observations.

In the second part of its document, the WCG addresses the longer-term prospects for the Anglican Communion. It poses three questions necessary to answer:
i. Can we recognise the Church in one another?

ii. What is a Communion of Churches?

iii. What is our shared understanding of the role of a bishop in the communion of the Church?
It goes on to say that these questions can best be answered by developing and agreeing upon a common Covenant, and calls for a definitive timeline for its adoption, "to ensure confidence that the process has credibility." Then it calls for work on the Instruments of Unity "to enable them to sustain communion":

About the Archbishop of Canterbury, the WCG does nothing more than repeat the rather wimpy description of his role in the Windsor Report: he is "'the central focus of unity and mission within the Communion [with authority] to speak directly to any provincial situation on behalf of the Communion where this is deemed to be advisable." (Deemed advisable by whom? is the next question.)

On the Lambeth Conference, the WCG says:
There are questions concerning the authority of a Lambeth Conference and the nature and of the authority of its Resolutions.

While acknowledging that resolutions of one Conference have been reviewed, and directions changed at a later Conference, nonetheless, like the resolutions taken by councils of bishops in primitive Christianity, they are of sufficient weight that the consciences of many bishops require them to follow or at least try to follow such resolutions. They are taken after due debate and after prayer by the ministers who represent the apostles to their churches.
Again, no suggestions are made for "strengthening" the Lambeth Conference. But with regard to the Anglican Consultative Council, the WCG has this to say:
ACC is not to be understood as a synodical body at the Communion wide level. It is 'consultative'. Its Constitution provides for the bringing together of bishops, clergy and laity in order to advise, encourage and inform the Provinces. It is particularly valued by those who emphasise the contribution of the whole people of God in the life, mission and the governance of the Church.

There are questions about whether a body meeting every three years, with a rapidly changing membership not necessarily located within the central structures of their own Provinces, can fulfil adequately the tasks presently given to it.

Not all believe that a representative body is the best way to express the contribution of the whole people of God at a worldwide level. There are many ways in which the voice of the whole body can be heard: diocesan and Provincial synods, networks, dialogues and commissions.
The language here is very indirect. It would seem to be saying that the ACC will not play much of a role in resolving the present crisis. Next, the WCG turns to the Primates' Meeting:
recognising the need and importance for collegial consultation and support for the Archbishop of Canterbury, it is a body that could be called together as occasion requires in between Lambeth Conferences.

Recognising that different models of primacy exist, a great virtue of the Primates' Meeting is that the Primates are in conversation with their own Houses of Bishops and located within their own synodical structures. They are, therefore, able to reflect the breadth and depth of the conversations and opinion in their Provinces.
Notice there is no mention of being in touch with anyone beyond the "Houses of Bishops." (Then again, who was it who authored this document? Oh, yes---bishops.) And once more, this language is descriptive, not prescriptive. The WCG concludes its comments on the four Instruments of Unity with this glorious bit of fluff:
In considering the future development of the Instruments of Communion it is vital to take account of their ecclesiological significance as well as whether they are fit to respond effectively to the demands of global leadership. There needs to be a process of communion wide reflection which leads towards a common understanding.
Exam question for seminarians: What is the ecclesiological significance of the Anglican Consultative Council? Of the Primates' Meeting? Contrast and explain, with citations to the Post-Nicene Fathers.

Part Two of the WCG "observations" concludes with a description of four processes that are underway in the Communion:
(c) Processes and Commissions:

1. The Listening Process
2. The Hermeneutics Project – The Bible in the Church
3. The Principles of Canon Law Project
4. A Faith & Order Commission

These four initiatives are already in hand, but we see them as vital for strengthening the life of our Communion. The Listening Process and conversation on issues of sexuality needs to continue. We also recommend the continuation of plans for The Bible in the Church. Such projects are urgent and vital if we are to regain a sense of common values and mutual understanding.

The Common Principles of Canon Law Project (Anglican Communion Legal Advisers Network) gives a sense of the integrity of Anglicanism and we commend the suggestion for the setting up of an Anglican Communion Faith and Order Commission that could give guidance on the ecclesiological issues raised by our current 'crisis'.
In case you've forgotten what "The Hermeneutics Project" is, here is how it was described in the communique from Dar es Salaam:
We agreed to proceed with a worldwide study of hermeneutics (the methods of interpreting scripture). The primates have joined the Joint Standing Committee in asking the Anglican Communion Office to develop options for carrying the study forward following the Lambeth Conference in 2008. A report will be presented to the Joint Standing Committee next year.
So what comes of this discussion of the longer-term prospects for the Anglican Communion? It looks like: talk, talk, and then some more talk. Let us turn to Part III of the "observations," in which the WCG makes some suggestions for what must happen while all this talk is going on:
3. How do we get from here to there

The various initiatives set out in Part Two and the Covenant is [sic] a longer term process to reverse the trends described in Part One; to restore the sense of trust, fellowship and communion on which we thrive. In the period leading up to the establishment of a covenant, however, there are urgent issues which need addressing if we are going to be able to get to the point where such a renewal of trust even becomes possible.
The inability to make their verb agree with their subject does not bode well for what follows. Nevertheless, we shall plunge forward, searching for substance amidst all the fog of description. The WCG takes up the controversial issue of the heretofore thrice requested moratoria:
The Windsor Report sets out requests for three moratoria in relation to the public Rites of Blessing of same sex unions, the consecration to the episcopate of those living in partnered gay relationships and the cessation of cross border interventions.

There have been different interpretations of the sense in which "moratorium" was used in the Windsor Report. Our understanding is that moratorium refers to both future actions and is also retrospective: that is that it requires the cessation of activity. This necessarily applies to practices that may have already been authorised as well as proposed for authorisation in the future.
Let us pause a moment and ask just what this language means. How can a moratorium be "retrospective"? The word comes from a Latin participle meaning "delaying", and how can something that has already occurred be "delayed"? No one appears to contend that this language calls for the undoing of V. Gene Robinson's consecration, for example---even if it could be conceived how such a solemn act could be "undone." "It requires the cessation of activity." All right, that seems clear enough: "You have to stop same-sex blessings now, as of this very day, even if they have been authorized." That is fine, but that is not what we lawyers call a "retrospective" moratorium. "From this day forward" is actually prospective in effect. So once again, the WCG's misuse of well-established legal terms does not bode well for the seriousness with which one should take their recommendations. They continue:
The request for moratorium applies in this way to the complete cessation of (a) the celebration of blessings for same-sex unions, (b) consecrations of those living in openly gay relationships, and (c) all cross border interventions and inter-provincial claims of jurisdiction.

The three moratoria have been requested several times: Windsor (2004); Dromantine (2005); Dar es Salaam (2007) and the requests have been less than wholeheartedly embraced on all sides.

The failure to respond presents us with a situation where if the three moratoria are not observed, the Communion is likely to fracture. The patterns of action currently embraced with the continued blessings of same-sex unions and of interventions could lead to irreparable damage.
Many would say that irreparable damage has already occurred. And what can one say to the pronouncements, both before and after Lambeth, that same-sex blessings and consecrations of homosexually active deacons, priests and bishops will continue as before? How does irreparable become even more irreparable? To quote the WCG: "This poses the serious question of what response should be made to those who act contrary to the moratorium during the Covenant process and who should make a response." Well, just listen to their ideas:
New Ways of Responding

We make the following suggestions for situations which might arise in different parts of the Communion:

*the swift formation of a 'Pastoral Forum' at Communion level to engage theologically and practically with situations of controversy as they arise or divisive actions that may be taken around the Communion. Such a Forum draws upon proposals for a Council of Advice (Windsor), a Panel of Reference (Dromantine), a Pastoral Council (Dar es Salaam) and the TEC House of Bishops' Statement (Sept 2007) acknowledging a 'useful role for communion wide consultation with respect to the pastoral needs of those seeking alternative oversight'. The existence of such a Forum might be included in the Covenant as a key mechanism to achieve reconciliation.
But the Covenant won't come about for years, so don't look for "swift formation" of the Pastoral Forum through the Covenant process. Just how would such a Pastoral Forum operate?
Part of the role of a Forum might be for some of its members, having considered the theological and ecclesiological issues of any controversy or divisive action, to travel, meet and offer pastoral advice and guidelines in conflicted, confused and fragile situations. There is a precedent in the method of the Eames Commission in the 1980s.
There is nothing to stop bishops from traveling, meeting and offering pastoral advice to each other right now. If they had really wanted such a service to be available, nothing stood in its way of being implemented, since it is entirely voluntary from start to finish. Reduced to its essentials, this is simply a recipe for more talk, talk, talk---or if you will, for more indaba.
The President of such a Forum would be the Archbishop of Canterbury, who would also appoint its episcopal chair, and its members. The membership of the Forum must include members from the Instruments of Communion and be representative of the breadth of the life of the Communion as a whole. Movement forward on this proposal must bear fruit quickly.

We believe that the Pastoral Forum should be empowered to act in the Anglican Communion in a rapid manner to emerging threats to its life, especially through the ministry of its Chair, who should work alongside the Archbishop of Canterbury in the exercise of his ministry.

The Forum would be responsible for addressing those anomalies of pastoral care arising in the Communion against the recommendations of the Windsor Report. It could also offer guidance on what response and any diminishment of standing within the Communion might be appropriate where any of the three moratoria are broken.
"Offer guidance"? This is another masterpiece of Anglican indirection. Let me see, now: the Pastoral Forum is chaired by the Archbishop of Canterbury, who could, if he were so inclined, threaten those breaking the moratoria with being disinvited to Lambeth in ten years' time---yes, that would be a threat with real teeth in it. And what if he were not so inclined? What other kind of "diminishment in standing" would be available as a form of discipline to the Archbishop? It is true that the Church of England has authorized the Archbishop of Canterbury and the Archbishop of York alone to decide with whom it shall be in a Covenant relationship. But since our own Presiding Bishop has already suggested that there was no interest "in producing a Covenant that defined who could be excluded," it seems unlikely that having a Covenant or not could be a source of significant "diminishment in standing."
We are encouraged by the planned setting up of the Communion Partners initiative in the Episcopal Church as a means of sustaining those who feel at odds with developments taking place in their own Province but who wish to be loyal to, and to maintain, their fellowship within TEC and within the Anglican Communion.

The proliferation of ad hoc episcopal and archiepiscopal ministries cannot be maintained within a global Communion. We recommend that the Pastoral Forum develop a scheme in which existing ad hoc jurisdictions could be held "in trust" in preparation for their reconciliation within their proper Provinces. Such a scheme might draw on models derived from religious life (the relationship of religious orders to the wider Church), family life (the way in which the extended family can care for children in dysfunctional nuclear families) or from law (where escrow accounts can be created to hold monies in trust for their rightful owner on completion of certain undertakings. Ways of halting litigation must be explored, and perhaps the escrow concept could even be extended to have some applicability here.
Both the Communion Partners initiative, as well as any mechanism for holding dissenting parishes and dioceses "in trust", depend for their implementation on the voluntary consent of all parties involved. Which means, again, that if they had wanted to do this, they could have done it already. So once again, we have no substance here, but only an encouragement to agree to agree.

In a final section, called a "Coda" (meaning "tail"), the WCG finally asks the question: "Why bother with all this?" And here is what they come up with for an answer:
Much faithful witness continues – converts are baptised; disciples are nurtured; vocations are encouraged; the scriptures are studied; the Gospel is proclaimed.

Anglicanism as a distinctive global expression of Reformed Catholicism: not only in its content, but in its processes – diverse, patient, hospitable and tolerant.

"We believe in this Communion"; a Communion which contributes to the wider life of the Church in the ecumenical community, and gives witness in a world of many faiths.
All true, all true. In the end, however, what the WCG is admitting is that the Anglican Communion will survive as such only if its members voluntarily agree to make that happen. And for such an agreement to occur will require . . . [drum roll] the dreaded "S"-word!
What might mutual accountability under God in life and mission look like at its best in the period between now and the completion of the Covenant process?

What personal sacrifices might it involve for each of us?
The introduction of the S-word, note, did not come from Archbishop Rowan, but from the WCG. And as I have detailed in another post, it gave the gay rights activists a foothold to claim that they were being asked to give up that which they do not in fact possess---a "right" to ordination, or to have "their" unions blessed. With this single misstep, the WCG's "observations" managed to undo any positive effects they had previously had on those at Lambeth. The dialogue immediately degenerated into a litany of complaint about rights denied, even though, as Archbishop Rowan had carefully taught before the Conference proper began, no one can claim any kind of "rights" before God.

(Can you just see the activist on Judgment Day? "God, I demand a fair trial!")

The WCG's observations conclude with the by now mandatory recommendation that "all our people . . . minister pastorally and sensitively to all irrespective of sexual orientation and to condemn irrational fear of homosexuals, violence within marriage and any trivialisation and commercialisation of sex."

So, what do these "observations" accomplish? After starting out with a strong, clear vision of what is wrong with the Anglican Communion, they end, as T. S. Eliot has it, "not with a bang, but a whimper." They identify the current fractures and brokenness of the Communion, describe what has brought us to that pass, and then---they punt the ball down the field, relying on wholly voluntary decisions to bring the opposite sides into---further indaba! This is not a recipe for taming the forces that divide us, but for talking each other to death while nothing changes, or rather, while each side continues in its chosen course.

All the post-Lambeth stories about each side persevering in its chosen path serve only to highlight that the time has just about run out for the Windsor Continuation Group to have any effect whatsoever on the future of the Anglican Communion. By the time the WCG meets again, it will be too late for any revision in these "observations" to have an impact. Instead, the only result of all the wailing and gnashing of teeth at Lambeth will be to leave matters exactly as they stood before Lambeth: with all the hopes for the future pinned on the creation of a voluntary Covenant, which will be ten or more years in  the making, if events do not overtake it. That is a very slim thread on which to hang the Communion's destiny.


Posted by A. S. Haley at 8:08 AM 5 comments

Monday, August 4, 2008

The Trigger-Happy Church

[UPDATE 03/01/2009: Building on the following post, trhe American Anglican Council has compiled a comprehensive list of some 60 current lawsuits in which ECUSA is involved over church property disputes. See pages 28-32 of its full report on the current situation.]

At Lambeth, TEC's bishops were (whether deliberately, or negligently---it makes no difference) giving out wrong information about the lawsuits they are involved in with their own parishes. The Bishop of Lichfield, the Rt. Rev. Jonathan Gledhill, in the Province of Canterbury, reports on his Weblog about the meeting of his indaba group on August 2 (Day 18 of the Lambeth Conference):
In the discussion afterwards we are told that the US House of Bishops has regretted for the hurt it has caused and its lack of consultation and has issued a public apology - though no one has the exact wording. We are also told that the Canadians have voted against same-sex blessings - though two dioceses are pressing their bishops to change that. We are told that in the lawsuits in America between parishes and their dioceses it is the dioceses who are the defendants and the conservative parishes who are the accusers.
Since it is well known to many individual Episcopalians who have been involved in the many lawsuits instigated and still pending at all levels here that the statement I have put into boldface type above is simply not the case, it did not take long for a blog reader familiar with the details in Virginia to inform the good Bishop of the facts on the ground there. The Rev. Canon Kendall Harmon put the information up on his site at TitusOneNine, and it elicited this comment from a reader:
In the interest of being scrupulously fair: this just refers to the Virginia situation, is it possible there are other parishes/dioceses where the reasserters are suing?
Well, let us be scrupulously fair, and see just what the facts are. The Episcopal Church and/or one of its Dioceses played the role of plaintiff---the party who initiates a case in court, by filing a complaint---in bringing the pending or former lawsuits I have listed below over Church property and assets in the courts of the United States. This list makes no claim to be complete; it comprises just the ones I have read about (I have listed them alphabetically by State, and not chronologically):

1. Against Christ Anglican Church in Mobile, AL (plaintiff was the Diocese of the Central Gulf Coast---the suit settled before trial);

2. Against St. John's Episcopal Church in Fallbrook, CA; St. Anne's, in Oceanside CA; and Holy Trinity, in Ocean Beach, CA (plaintiff in all three cases is the Diocese of San Diego--- apparently after not being allowed to amend an older suit, the Diocese simply filed a new one);

3. Against St. James Anglican Church and two others in Newport Beach, CA (Diocese of Los Angeles is plaintiff---the case is now being reviewed by the California Supreme Court);

4. Against St. John's Anglican Church in Petaluma, CA (Diocese of Northern California is plaintiff);

5. Against Bishop Schofield and the diocesan investment fund in the Diocese of San Joaquin, CA (for an update on that suit, see this post, as well as my earlier ones you can find in the Guide);

6. Against Trinity Anglican Church in Bristol, CT (recently settled);

8. Against Redeemer Anglican Church in Jacksonville, FL (plaintiff was the Diocese of Florida)

9. Against Christ Church in Savannah, GA (plaintiff is the Diocese of Georgia);

10. Against All Saints Church in Attleboro, MA (plaintiff was the Diocese of Massachusetts; the case settled in 2007);

11. Against St. Andrew's Anglican Church in Morehead City, NC (plaintiff was the Diocese of East Carolina and those members of the parish who had not voted to join AMiA; following a jury mistrial, plaintiffs obtained summary judgment which was affirmed on appeal);

12. Against the Church of the Good Shepherd in Binghamton, NY (if the link has been removed, try this one---the plaintiff is the Diocese of Central New York, and the defendant church is the parish of StandFirm's Matt Kennedy and his wife, Anne;

13. Against St. Joseph's Anglican Church (formerly Trinity Church of East New York) in Brooklyn, NY, which originally separated from TEC in 1977, before the adoption of the Dennis Canon (plaintiff was the Diocese of Long Island, in a second brought in 2005 after it lost its first suit, filed in the early 1980's---the case settled early this year);

14. Against St. James Anglican Church in Elmhurst (Queens), NY (plaintiff was the Diocese of Long Island, and the court ruled in its favor in March of this year)

15. Against All Saints Protestant Episcopal Church in Rochester, NY (plaintiff was the Diocese of Rochester);

16. Against St. Andrew's in Syracuse, NY (plaintiff originally was the Diocese of Central New York, and TEC's Domestic and Foreign Missionary Society later intervened---the lawsuit recently settled);

17. Against St. Luke's Church in Akron, OH and four other northeast Ohio parishes (plaintiff is the Diocese of Ohio).

18. And last, but certainly not least, we have the aforementioned suits against the churches in the Anglican District of Virginia, in which both TEC and the Diocese of VA filed separate declaratory actions as plaintiffs after the churches had filed with the court reports of the votes to leave TEC held pursuant to the terms of Virginia's unique Division Statute.


I am aware of just three [actually, four---see the Update below] instances in which a Diocese or The Episcopal Church were defendants, rather than plaintiffs. But in two of the cases, as noted below, it was the Diocese which triggered the filing of a lawsuit by moving to take control of the individual church's assets, and the legal actions that followed were essentially a defensive response against those moves.

A. The earliest (and, I would say, the only genuine) instance of a parish starting a lawsuit was in 2000, after a dispute arose between All Saints Parish, Pawley's Island, SC, the Diocese of South Carolina, and TEC in connection with the formation of the Anglican Mission in America. The Rev. Canon Charles Murphy, who had been rector of All Saints for over twenty years, was consecrated as an AMiA bishop in Singapore along with the Rev. John Rodgers. Bishop Edward Salmon, the diocesan of South Carolina, issued a pastoral letter expressing the canonical difficulties which the consecration created. Although Canon Murphy had announced before his consecration his intentions to remain at All Saints, alarm bells went off in the diocesan chancellor's office when it was subsequently learned that All Saints had ordered a title report on its property. This raised concerns because of what had happened earlier in Morehead City, North Carolina (see Item No. 11 above). There St. Andrew's parish had conveyed its property to an AMiA entity without securing permission beforehand from either the Bishop or the Standing Committee as required by the applicable canons, and the deed had been recorded without any difficulty. As he explains in this letter to the members of All Saints, Bishop Salmon received advice from his chancellor that he should record with the local Register of Deeds a notice of what the Episcopal Church's canons provided with respect to conveyances of parish property. The parish considered this action as putting a cloud on their title (which they contended was in an 18th-century trust; see below), but as Bishop Salmon explains, since they were a parish in the Episcopal Church, it was the other way around: "If the permission of the Bishop and the Standing Committee are not given [to the conveyance], the title is clouded." In any event, All Saints (even though it had not yet voted to leave the Episcopal Church) brought an action to remove what it saw as a cloud on its property, and named as defendants the Diocese of South Carolina and The Episcopal Church. The latter filed counterclaims seeking to establish that the church property was held in trust for the Diocese and for TEC.

In 2003, a majority of the parish voted to leave the Diocese and affiliate with AMiA. Bishop Salmon appointed a new vestry for the parish that remained, and following a successful appeal from an initially adverse decision that vestry, joined by Bishop Salmon, the Diocese and TEC itself, filed in 2005 a second lawsuit against the vestry it replaced, seeking their ejectment from and the possession of the 60-acre church property. The two lawsuits (one from 2000 and the other from 2005) were consolidated, and tried to a jury. In April 2007, the trial court took the case away from the jury, saying that the legal issues involved were too complex, and needed to be resolved by the court, on the evidence presented to the jury. The judge handed down a lengthy and complex ruling granting judgment in part to both sides, but leaving ultimate ownership to be decided by the probate court.

That court will have some very knotty issues to untangle, as the title to the property was originally held by a charitable trust established under a 1745 will, in favor of "the Church of England". The original parish argues that since it has occupied the property continuously since the trust was established, it is now the beneficiary of that trust, which it contends is still valid. (It uses that argument to get around the Dennis Canon, contending that the earlier trust, established before there even was an Episcopal Church, controls.) The only problem is that the trustees stopped functioning as such centuries ago: the court named "John Doe" trustees to represent the unknown common-law heirs of the two original trustees named in 1745. Those "John Doe" trustees have aligned themselves with the original parish---not surprisingly, since both groups want the trust to continue to function and hold the property. The Diocese and the surviving TEC parish, on the other hand, maintain that the trust has long since merged into the identity of the parish, and that as the only hierarchically approved entity belonging to the successor to the Church of England in the United States, it now owns the property. As I mentioned, the trial court's ruling is now on appeal, and these ownership questions will probably not be sorted out until after the appellate court has weighed in on the other issues. Talk about a complex case! [A hat-tip to the ever-reliable Rev. Canon Kendall Harmon, with his personal knowledge of the scene, for helping me to sort out the strands.]

B. An action was brought in 2005 in federal district court by six parishes and their rectors (the "Connecticut Six") against the Diocese of Connecticut, whose bishop had suspended the priests in question and taken over some of the church properties. The cou