Saturday, October 31, 2009

A Documentary History of ECUSA's Constitution

There is much litigation going on currently in State courts over the polity of the Episcopal Church. At the same time, there do not appear to be any online versions readily available of ECUSA's early Constitution, either as originally adopted or as subsequently from time to time amended. The commentary on the history of the Constitution and Canons published in 1981 by Messrs. White & Dykman, and reprinted in 1997, is available for download from this site (along with two supplements written by others, carrying the account through General Convention 1991). However, even it does not have in one place a complete version of ECUSA's original Constitution, which is so important for understanding the nature of ECUSA's mixed form of ecclesiastical polity.

Since the nature of ECUSA's polity is so much in dispute these days, I have decided that as a public service, I will publish in this post the earliest version of the Church's Constitution, as well as some further historical materials leading up to its formulation. The purpose will be so that everyone may access and understand the Church's organic evolution (see this earlier post for even more detail and background), out of a meeting of delegates from the various successors, in each new State, of the previously established Church of England in the respective colonies.

Let us begin with the six principles for the formation of a national replacement in the States for the Church of England, as it had existed in the Colonies prior to the Revolutionary War. The Rev. Dr. William White, of Christ Church in Philadelphia, later one of the first Bishops in the newly established Church, first proposed them in a pamphlet which he had published in 1782, entitled The Case of the Episcopal Churches in the United States Considered:

I. That the Episcopal Church in these States is and ought to be independent of all foreign Authority, ecclesiastical or civil.

II. That it hath and ought to have, in common with all other religious Societies, full and exclusive Powers to regulate the Concerns of its own Communion.

III. That the Doctrines of the Gospel be maintained as now professed by the Church of England; and Uniformity of Worship be continued, as near as may be, to the Liturgy of the said Church.

IV. That the Succession of the Ministry be agreeably to the Usage which requireth the three Orders of Bishops, Priests, and Deacons ; that the Rights and Powers of the same respectively be ascertained, and that they be exercised according to reasonable Laws, to be duly made.

V. That to make Canons or Laws, there be no other Authority than that of a Representative Body of the Clergy and Laity conjointly.

VI. That no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations.
(Emphasis added.) The last principle thus expressed from the very outset the belief that the "general ecclesiastical Government" would consist of powers delegated to it from local congregations. Those who contend that the lack of any limitation in the powers so delegated means that they are unlimited, or that once delegated, they may not be withdrawn, are ignorant of this documentary history of how General Convention came into being.

This pamphlet had a wide reception in the mid-Atlantic States, and served as the basis for a further "Declaration of certain fundamental rights" agreed upon by the assembled former Anglican clergy of the State of Maryland, at a gathering in Annapolis in August 1783, which stated in relevant part as follows:
DECLARATION of certain fundamental Rights and Liberties of the Protestant Episcopal Church of Maryland, &C.

WHEREAS by the CONSTITUTION and FORM of Government of this State "All Persons professing the Christian Religion, are equally entitled to Protection in their Religious Liberty . . . And Whereas the ecclesiastical and spiritual Independence of the different religious Denominations, Societies, Congregations, and Churches of Christians in this State, necessarily follows from, or is included in, their civil Independence,

WHEREFORE WE the Clergy of the Protestant Episcopal Church of Maryland (heretofore denominated the Church of England, as by Law established) with all Duty to the civil Authority of the State, and with all Love and Good-will to our Fellow-Christians of every other religious Denomination, do hereby declare, make known, and claim, the following, as certain of the fundamental Rights and Liberties inherent in and belonging to the said Episcopal Church . . .

I. WE consider it as the undoubted Right of the said Protestant Episcopal Church, in common with other Christian Churches under the American Revolution, to compleat and preserve herself as an entire Church, agreeably to her ancient Usages and Profession, and to have the free Enjoyment and free Exercise of those purely spiritual Powers, which are essential to the Being of every Church or Congregation of the faithful, and which, being derived only from CHRIST and his APOSTLES, are to be maintained independent of every foreign or other Jurisdiction, so far as may be consistent with the civil Rights of Society.

II. That ever since the Reformation, it hath been the received Doctrine of the Church whereof we are Members . . . "That there be these three Orders of Ministers in CHRIST'S Church, BISHOPS, PRIESTS, and DEACONS," and that an Episcopal Ordination and Commission are necessary to the valid Administration of the Sacraments, and the due Exercise of the Ministerial Functions in the said Church.

III. That, without calling in Question the Rights, Modes, and Forms of any other Christian Churches or Societies, or wishing the least Contest with them on that Subject, we consider and declare it to be an essential Right of the said Protestant Episcopal Church to have and enjoy the Continuance of the said three Orders of Ministers forever, so far as concerns Matters purely spiritual; and that no Persons, in the Character of Ministers, except such as are in the Communion of the said Church, and duly called to the Ministry by regular Episcopal Ordination, can or ought to be admitted into, or enjoy any of the "Churches, Chapels, Glebes, or other Property," formerly belonging to the Church of England in this State, and which by the Constitution and Form of Government is secured to the said Church forever, by whatsoever Name, she the said Church, or her superior Order of Ministers, may in future be denominated.

IV. That as it is the Right, so it will be the Duty, of the said Church, when duly organized, constituted, and represented in a Synod or Convention of the different Orders of her Ministry and People, to revise her Liturgy, Forms of Prayer, and public Worship, in order to adapt the same to the late Revolution and other local Circumstances of America; which it is humbly conceived, may and will be done, without any other or farther Departure from the venerable Order and beautiful Forms of Worship of the Church from whence we sprung, than may be found expedient in the Change of our Situation from a DAUGHTER to a SISTER-CHURCH.
(Emphasis again added.) The editor of the volume in which this declaration is to be found appends a piece of contemporary correspondence, with the following introductory remarks (I have added the italics):
In connection with these "Fundamental Principles," which appear not only in this printed address, but again and again in subsequent Journals and fragments of Journals of the Maryland Conventions, it may be well to subjoin the following important letter, from the Rev. Dr. William Smith, the leading spirit in the Maryland organization, which bears strongly upon the question of diocesan independence, as held by the framers of our ecclesiastical Constitution. It forms, moreover, a fitting preface to the "Proceedings" it so clearly indicates in advance.

Dear Sir:

The Clergy of Maryland are to meet (in pursuance of the sanction obtained from the G. Assembly) on the 13th of this Month; but as Mr. Gates and myself were to call this Meeting, we found on consulting some of our nearest Brethren, that they did not think it proper, nor that we were authorized, to call any Clergy to our assistance from the neighboring States that the Episcopal Clergy of Maryland were in some respects peculiarly circumstanced, and ought, in the first instance, to have a preparatory Convention or Conference, to consider and frame a DECLARATION of their own Rights as one of the Churches of a separate and independent State, to agree upon some articles of Government and Unity among themselves, to fix some future Time of meeting by adjournment, to appoint a Committee to bring in a Plan of SOME FEW alterations that may be found necessary in the Liturgy and Service of the Church, and by the authority of this first Meeting to open a correspondence on the subject with the Clergy of the neighboring States, and to have some speedy future and more general meeting with the Clergy of those States, or Committees from them, to unite if possible in the alterations to be made, which many among us think cannot have a full Church Ratification, till we have on some plan or another the three Orders of Bishops, Priests and Deacons to concur in the same. What STATE or civic ratification may be necessary, or whether any is a question yet to be determined. In Maryland, I presume, a few words of a Declaratory Act, that a Clergy, ordained in such a form, and using a Liturgy with such alterations as may be agreed upon, are to be considered as entitled to the Glebes, Churches and other property declared by the Constitution to belong to the CHURCH OF ENGLAND for ever. I say such a short Act as this, or the Opinion of the Judges that such Act is not necessary, is I conceive all that will be wanted.

Chester: August 4th, 1783.
To Rev. Dr. WHITE.
From the Bishop White MSS., in the possession of the Rev. F. L. Hawks, D.D.
There followed a gathering of clergy and laity from New York, Pennsylvania and New Jersey at Brunswick, New Jersey on May 11, 1784, which resulted in a determination to gather again in October, and to invite representatives from churches in additional States. This meeting also spurred the clergy and laity from the parishes in Pennsylvania to begin their own organizing. To that end, they assembled in Philadelphia toward the end of May 1784. The meeting was the first of its kind in the former Colonies to include laity from each and every parish. It ended up by adopting the following recommendation concerning the creation of a "standing committee" -- the first use of this term in the nascent Church:
That they think it expedient to appoint a standing committee of the Episcopal church in this state, consisting of clergy and laity; that the said committee be empowered to correspond and confer with representatives from the Episcopal church in the other states, or any of them; and assist in framing an ecclesiastical government; that a constitution of ecclesiastical government, when framed, be reported to the several congregations, through their respective ministers, church-wardens, and vestrymen, to be binding on all the congregations consenting to it, as soon as a majority of the congregations shall have consented; that a majority of the committee, or any less number by them appointed, be a quorum; that they be desired to keep minutes of their proceedings; and that they be bound by the following instructions or fundamental principles. [There follow the six fundamental principles first set out by the Rev. Dr. White in his pamphlet.]
The "standing committee" so formed did communicate with clergy and laity in other States, as I have already related in this earlier post. This resulted in a series of further meetings and drafts of a national constitution, as I have spelled out in great detail there, and I will not repeat here what I said earlier. My concern from this point on is to set out the version of the Church Constitution as finally agreed upon by the assembled representatives of the Churches in the States of Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia and South Carolina in the city of Philadelphia in September-October 1789, and as finally ratified by diocesan conventions in each of those States, since the text does not readily appear elsewhere on the Web. Here, then, is the text of that original Constitution, in full:


ART. 1. There shall be a General Convention of the Protestant Episcopal Church in the United States of America on the second Tuesday of September, in the year of our Lord 1792, and on the second Tuesday of September in every third year afterwards, in such place as shall be determined by the Convention; and special meetings may be called at other times, in the manner hereafter to be provided for; and this Church, in a majority of the States which shall have adopted this Constitution, shall be represented, before they shall proceed to business, except that the representation from two States shall be sufficient to adjourn; and in all business of the Convention, freedom of debate shall be allowed.

ART. 2. The Church in each State shall be entitled to a representation of both the Clergy and the Laity, which representation shall consist of one or more Deputies, not exceeding four of each Order, chosen by the Convention of the State: and in all questions, when required by the Clerical or Lay representation from any State, each Order shall have one vote; and the majority of suffrages by States shall be conclusive in each Order, provided such majority comprehend a majority of the States represented in that Order. The concurrence of both Orders shall be necessary to constitute a vote of the Convention. If the Convention of any State should neglect or decline to appoint Clerical Deputies, or if they should neglect or decline to appoint Lay Deputies, or if any of those of either Order appointed should neglect to attend, or be prevented by sickness or any other accident, such State shall nevertheless be considered as duly represented by such Deputy or Deputies as may attend, whether lay or clerical. And if, through the neglect of the Convention of any of the Churches which shall have adopted, or may hereafter adopt this Constitution, no Deputies, either Lay or Clerical, should attend at any General Convention, the Church in such State shall nevertheless be bound by the acts of such Convention.

ART. 3. The Bishops of this Church, when there shall be three or more, shall, whenever General Conventions are held, form a separate House, with a right to originate and propose acts for the concurrence of the House of Deputies, composed of Clergy and Laity ; and when any proposed act shall have passed the House of Deputies, the same shall be transmitted to the House of Bishops, who shall have a negative thereupon unless adhered to by four-fifths of the other House. And all acts of the Convention shall be authenticated by both Houses. And in all cases, the House of Bishops shall signify to the Convention their approbation or disapprobation, the latter with their reasons in writing, within three days after the proposed act shall have been reported to them for concurrence, and in failure thereof it shall have the operation of a law. But until there shall be three or more Bishops as aforesaid, any Bishop attending a General Convention shall be a member ex officio, and shall vote with the Clerical Deputies of the State to which he belongs; and a Bishop shall then preside.

ART. 4. The Bishop or Bishops in every State shall be chosen agreeably to such rules as shall be fixed by the Convention of that State. And every Bishop of this Church shall confine the exercise of his Episcopal office to his proper Diocese or District, unless requested to ordain or confirm, or perform any other act of the Episcopal office, by any Church destitute of a Bishop.

ART. 5. A Protestant Episcopal Church in any of the United States not now represented, may, at any time hereafter, be admitted, on acceding to this Constitution.

ART. 6. In every State, the mode of trying Clergymen shall be instituted by the Convention of the Church therein. At every trial of a Bishop there shall be one or more of the Episcopal Order present: and none but a Bishop shall pronounce sentence of deposition or degradation from the Ministry on any Clergyman, whether Bishop, or Presbyter, or Deacon.

ART. 7. No person shall be admitted to Holy Orders, until he shall have been examined by the Bishop and by two Presbyters, and shall have exhibited such testimonials and other requisites as the Canons in that case provided may direct. Nor shall any person be ordained until he shall have subscribed the following declaration: "I do believe the Holy Scriptures of the Old and New Testament to be the word of God, and to contain all things necessary to salvation: and I do solemnly engage to conform to the doctrines and worship of the Protestant Episcopal Church in these United States." No person ordained by a foreign Bishop shall be permitted to officiate as a Minister of this Church, until he shall have complied with the Canon or Canons in that case provided, and have also subscribed the aforesaid declaration.

ART. 8. A Book of Common Prayer, Administration of the Sacraments, and other Rites and Ceremonies of the Church, Articles of Religion, and a form and manner of making, ordaining, and consecrating Bishops, Priests, and Deacons, when established by this or a future General Convention, shall be used in the Protestant Episcopal Church in those States, which shall have adopted this Constitution.

ART. 9. This Constitution shall be unalterable, unless in General Convention by the Church in a majority of the States which may have adopted the same; and all alterations shall be first proposed in one General Convention, and made known to the several State Conventions, before they shall be finally agreed to, or ratified, in the ensuing General Convention.

Done in General Convention of the Bishops, Clergy, and Laity of the Church, the second day of October, 1789, and ordered to be transcribed into the Book of Records, and subscribed, which was done as follows, viz.


SAMUEL SEABURY, D.D., Bishop of Connecticut.

WILLIAM WHITE, D.D., Bishop of the Protestant Episcopal Church, Pennsylvania.


WILLIAM SMITH, D.D., President of the House of Clerical and Lay Deputies, and Clerical Deputy from Maryland.


SAMUEL PARKER, D.D., Rector of Trinity Church, Boston.


BELA HUBBARD, A.M., Rector of Trinity Church, New Haven.
ABRAHAM JARVIS, A.M., Rector of Christ Church, Middletown.


BENJAMIN MOORE, D.D., } Assistant Ministers of
ABRAHAM BEACH, D.D., } Trinity Church, in the City of New York.
RICHARD HARRISON, Lay Deputy from the State of New York.


UZAL OGDEN, Rector of Trinity Church, Newark.
WILLIAM FRAZER, A.M., Rector of St. Michael's Church, Trenton, and St. Andrew's Church, Amwell.
R. STRETTELL JONES, } Lay Deputies.


SAMUEL MAGAW, D.D., Rector of St. Paul's, Philadelphia.
ROBERT BLACKWELL, D.D., Senior Assistant Minister of Christ Church and St. Peter's, Philadelphia.
JOSEPH G. J. BEND, Assistant Minister of Christ Church and St. Peter's, Philadelphia.
JOSEPH PILMORE, Rector of the United Churches of Trinity, St. Thomas, and All Saints.
TENCH COXE, } from the State
FRANCIS HOPKINSON, } of Pennsylva-


JOSEPH COWDEN, A.M., Rector of St. Anne's.
ROBERT CLAY, Rector of Emanuel and St. James's Churches.


JOHN BISSETT, A.M., Rector of Shrews bury Parish, Kent County.


JOHN BRACKEN, Rector of Bruton Parish, Williamsburg.


ROBERT SMITH, D.D., Rector of St. Philip's Church, Charleston.
WILLIAM SMITH, } Lay Deputies from
WILLIAM BRISBANE, } the State of South Carolina.

Note the many features in common with the version we have today, as well as the provisions that have been greatly expanded (e.g., Art. V, on how dioceses form and join) and that were subsequently dropped altogether (e.g., the last sentence of Art. 2, as discussed and explained in the paper by Mark McCall published by the Anglican Communion Institute [see n. 44 and the text at that point]; repealed as part of the overhaul made in 1901.) As I deem it useful, I will document additional versions of the Constitution in subsequent posts.

Friday, October 30, 2009

Friday TED Talk: Bjarke Ingels Tells the Stories Behind His Amazing Architecture

Danish architect Bjarke Ingels, who heads up one of the most innovative design teams in the field today, tells with humor, sharp wit and images the stories behind three of the projects he has completed. In each one he shows how the designers' concern for connecting people with the functions made for a more humane and ecologically sensible environment. Don't miss his tale about proposing to ship Denmark's national treasure -- the "Little Mermaid" -- to China for an exhibition, along with her own crystal-clean harbor water as a backdrop, or his tale about transferring the ideas from a failed project in Iceland to a new one that recreated a national landmark for an urban environment in Malaysia. This talk was one of the very best at the TED 2009 Global Conference:

You may read more about Bjarke Ingels here; he is a principal of a firm appropriately named BIG (for Bjarke Ingels Group), in Denmark, and the TED blog has just published an interview with him. Watch the talk in high-resolution video from this link, and download the talk in that and other versions from this page. Best of all -- and save it for last -- is a visit to his firm's innovative Website (be sure your Java is up-to-date).

Wednesday, October 28, 2009

Striking out in Georgia

The Honorable Michael Karpf, Judge of the Superior Court in the Eastern District of Georgia, has now rendered his decision awarding ownership of the oldest Church in Georgia to the Episcopal Diocese of Georgia, and to ECUSA itself (which, paradoxically, as a common-law unincorporated association, is deemed incapable of holding any interests in property). I know that there will be knee-jerk reactions on both sides of the issue, but I refuse to respond in that fashion. On this blog, all that counts is faithful application of the actual law to the facts. Where the trial courts get either the facts or the law wrong, I shall point that out to be the case, and explain why the court is wrong. And by the same token, where a court gets things right, I shall point that out, too. Those who are outcome-oriented, and inclined to agree with any decision (regardless how poorly reasoned) that allows them to carve another notch into their gunstock, will receive no comfort here.

De facto victories in the trial courts are nothing to celebrate if they cannot bear up under legal analysis. All of us suffer when a court fails to follow the law. For too long now, the Episcopal Church (USA) has been twisting the facts of its formation, and avoiding confrontations over those facts by moving for summary judgment with hand-tailored affidavits (declarations). It claims the facts are in its favor, when they are not. It argues that there is an abstract entity, called "the Church", which exists in the hierarchical sky over each and every member diocese and parish. Some courts see through the flimflam, but many are taken in by it.

Unfortunately, the decision of the Hon. Michael Karpf is an instance of the latter category. What is worse, it not only gets the facts wrong, but it also misreads the law as well. In doing so, it only adds to the terrible muck that ECUSA is making of property law across the country. Some respond to ECUSA's maneuvers by saying, "Just let it have its way; it's too big to fight, and you can't win." I am unable to live with that. I make my living from the law, and I cannot understand the thinking of those who try to undermine it to gain a temporary advantage. ECUSA's win is the law's loss, because ECUSA is allowed to act as though it is above the law -- it doesn't have to bother with deeds or declarations of trust, as does everyone else. Accordingly, let us proceed to one more example of how to get it all wrong by listening to ECUSA's attorneys and experts.

The trial court's decision begins with a more or less standard recitation of the context in which the Court is called upon to make its decision:

This case is one of a series around the country involving parishes of the Episcopal Church who have sought to disaffiliate because of doctrinal differences. Specifically, the case at bar involves a schism in what is likely the oldest church in the state of Georgia. The division within the church has resulted in one faction taking control of the church property, while the other has sued to regain it. It appears that both sides are passionate about the doctrinal issues, but it is well settled that courts have no business intervening in such disputes. Each side has moved for summary judgment. For the reasons that follow, the court GRANTS plaintiffs’ motion and DENIES defendants’ motion. The facts are not materially in dispute and will be recited briefly.
(Emphasis added.) So the facts are not materially in dispute? Let us view how that observation holds up under detailed analysis. [UPDATE 10/29/2009: A member of Christ Church who was there when it happened writes to point out that Judge Karpf has the facts wrong from the second sentence onward, when he writes of a "schism" in Christ Church and (in the next sentence) a "division within the Church" resulting in two competing "factions". The vote to withdraw by the Vestry of Christ Church was unanimous. The congregation itself later approved the move by an 83% majority of its members; it is not the case that the minority is a "faction" which has the capability of maintaining and operating the Church with a pastoral staff on its own. As the Court later acknowledges, the minority parishioners did not even begin the lawsuit; they were added by intervention later to the suit brought by the Bishop of the Diocese and by ECUSA. Also, the writer says, for the Judge to refer to Christ Church as "likely the oldest church in the state of Georgia" is akin to referring to George Washington as "likely the first President of the United States."]

This is a decision upon a motion for summary judgment, which argues that there are no material facts in dispute, and that the Court may use the undisputed facts as the basis for rendering judgment as a matter of law. On the other hand, if the Court were to find that there were any material facts which were disputed, it could not grant summary judgment, but would be required to submit the case to a jury, or to a judge sitting without a jury, to find which of the disputed fact versions is operative for the case.

Apart from its mischaracterization of the parties as "factions", rather than as "the overwhelming majority" and "the minority", the opinion begins with a relatively neutral expression of the actual issue before the Court:
The competing factions seek to control the property of Christ Church, located on Johnson Square in downtown Savannah. Plaintiffs are the Episcopal Church [the National Church], the Diocese of Georgia and the local group which remained loyal to the National Church and the Diocese. The local plaintiffs, who were added by petition to intervene, formed a new vestry, changed their name slightly and began holding services elsewhere, but continued to press their claim to the disputed property. Defendants are the group which has disassociated itself from the National Church and Diocese, and who retain control of church property. At issue before the court is whether church property is impressed with a trust in favor of the National Church and Diocese. If so, then plaintiffs are entitled to control the property. If not, then defendants will continue their dominion over it.
(Emphasis added.) This is a fair statement of the central issue with which the Court is presented. Is there a trust on the parish property which can be enforced by the Diocese and the "National Church" -- whatever that entity may prove to be?

And now let us recall certain universal legal propositions in the Anglo-Saxon world, at least, about how trusts in real property may be validly created. The first requisite for such a valid trust is that there be a written document signed by the owner of the property, which establishes the trust in question. The basic principle here is that no one may create a trust interest in their favor, and in your property, without your written consent to its creation. (This is called historically, for reasons that may be obvious, the "Statute of Frauds." It has been adopted in each and every one of the fifty States. It was the basis for the recent rejection by the Supreme Court of South Carolina of ECUSA's and the Diocese's claim to have a trust in their favor in a parish's property for which there was no written evidence.)

The court now delves into the history of the parish of Christ Church in Savannah:
Christ Church was founded in 1733, shortly after the arrival of General Oglethorpe and the original colonists. The church was formally organized in 1758 by act of the colonial government of Georgia. At the time of its founding, the church was a constituent of the Church of England. After the Revolutionary War, affiliation with the English church was no longer possible in the newly formed country.
So far, so good. But now watch the Court deliberately prepare the result upon which it has decided, by slanting the facts which it claims are "undisputed" (I have put in bold the words where the court begins to stray from the actual evidence, in order to buttress its prejudged result):
The National Church then began to organize in 1789 as a hierarchical institution. The church organization has three tiers – the National Church, the dioceses and the local parishes or missions.
Oh dear, oh dear. No one who is familiar with the actual facts of the initial formation of "the National Church" could possibly conclude that it "began to organize in 1789 as a hierarchical institution." The Protestant Episcopal Church in the United States of America without question began in 1789 as a confederation of independent and autonomous State churches (referred to as "Dioceses", whose boundaries were coterminous with the States [former colonies] in which they had their existence up to that point), and not as any sort of "hierarchy". The very idea of a national hierarchy was anathema to Bishop William White, the person who did the most to bring about the "national Church". There was no sentiment in any State Church at that time to form any kind of "national hierarchy". Instead, here is what Bishop White proposed, and what PECUSA's founders agreed upon as a governing principle at the very outset of its formation:
VI. That no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations.
This is so well-documented a fact (see other posts here and here and here) as to be beyond dispute, unless you are a well-paid sham masquerading as an historian who reinvents the truth upon request. In sum, there was in 1789, and there is now, no "national Church" in the sense for which the plaintiffs argued, and which the trial court appears unhesitatingly to have accepted.

Indeed, just what is this "National Church" at the top of the imaginary three tiers which the court perceives? Is it a church, and does it have a place of worship where it meets every Sunday? Then why call it a "church", when what you mean is a "denomination"?

Very well -- let's call it a denomination. Of what, precisely, does this denomination consist? There are some 7,000 parishes which make it up, to be sure, and they are organized into 111 105 dioceses at the present time. But which parish, or which diocese, is at the top of the "hierarchy"? We all know that the Pope is at the top of the Roman Catholic Church, and in case we didn't the Canons spell it out precisely for us:

Art. 1.


Can. 331 The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth. By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.

Can. 333 §1. By virtue of his office, the Roman Pontiff not only possesses power over the universal Church but also obtains the primacy of ordinary power over all particular churches and groups of them. . . .

§3. No appeal or recourse is permitted against a sentence or decree of the Roman Pontiff.

Is there anything even remotely akin to this in ECUSA's Constitution or Canons? How does the language "There shall be a General Convention . . ." amount to a statement that it is the supreme and highest body of "the Church"? Or does the court mean to say that it considers General Convention to be the denomination which it is calling the "national Church"?

General Convention is no denomination, but is merely a legislative assembly, through which the 105 dioceses can act in concert. Does that mean that General Convention is all-powerful, and at the top of the "hierarchy"? Hardly -- it is difficult to operate a hierarchy when you exist for just two weeks out of every three years, and when there is no language conferring hierarchical status upon you. Consider the reception which GC 2006's Resolution B 033 received in the various dioceses which are supposed to be "subordinate": a number of Dioceses declared they would ignore it. That's some hierarchy.

The court tries to document its conclusion:
The National Church has a constitution and canons, which are similar to bylaws. The dioceses also have constitutions and canons, but these are subordinate to the National Church. The individual parishes are controlled by the terms of their charters and bylaws, which are in turn subordinate to both the diocese and the National Church. In addition, the dioceses and parishes are subject to the doctrine, discipline and worship of the National Church generally.
This would be comical if there were not so much at stake in the court's getting things right. Where is the language -- the specific words -- which make diocesan constitutions and canons "subordinate" to the national constitution and canons? And just what language makes a diocese -- or even an individual parish -- subject to the "doctrine, discipline and worship of the National Church"? Does the court mean to say that my little parish can be deposed if it allows people who are not baptized or confirmed to take communion? (Oh, yes -- Canon I.17.7 ["No unbaptized person shall be eligible to receive Holy Communion in this church"] is most certainly binding on every diocese and parish in the "National Church". That's why "open communion" is completely unknown in ECUSA -- because everyone, and every parish, is subordinate to its Canons -- don't you see?)

From here, the decision proceeds downhill quickly to its conclusion. Along the way, the court is persuaded that the Dennis Canon enacted in 1979 "merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of PECUSA in 1789." The problem with that claim is twofold: in the first place, as an unincorporated association at common law, PECUSA was incapable of holding any interest in real property, whether in trust or in fee; and in the second place, the early history of PECUSA and its parishes proves exactly the opposite.

Consider, just for one such instance, the history of King's Chapel in Boston. As its name indicates, it was originally founded in 1686 as a colonial parish of the Church of England, and was the first such parish in all of New England. Its current building was begun in 1749, and opened for worship in 1754. During the Revolutionary War its loyalist clergy and parishioners fled to Canada, and the church was unused for several years. In 1782, however, the church opened under the leadership of a young graduate from Harvard, James Freeman. As a Unitarian, he revised the Book of Common Prayer radically to suit the principles he espoused, and the congregation approved his changes.

However, there was no bishop in Massachusetts to ordain him, and so Freeman applied to the newly consecrated Bishop William White of Pennsylvania for assistance in becoming an ordained minister. Bishop White had heard about the changes made to the Prayer Book, and asked Freeman to send him a copy. When he saw that the liturgy had been revised to remove every single reference to the Redeemer, he protested that the departure from Anglican tradition was simply too great for the church to remain in communion with the nascent PECUSA: "The invoking of the Redeemer has been too conspicuous a part of our services to be set aside by some of us, consistently with any reasonable expectation of continuing of the same communion with the rest." He also noted that the changes had been approved by a simple vote of the congregation, instead of receiving the imprimatur from a bishop of the church, or ecclesiastical council. This action "was inconsistent with the whole tenor of the ecclesiastical government of the Church of England", he wrote. To leave each church to its own congregational government "would be foreign to every idea of Episcopal government."

Bishop White declared that King's Chapel could not claim to be Episcopal if it adopted Unitarian doctrines and a congregational polity. He delivered an ultimatum: the congregation must return to the Book of Common Prayer as it had received it, or leave and start its new church somewhere else. In essence, he repeated the mantra of the current head of ECUSA: "Go if you must, but leave the keys, since the property is ours."

Freeman and his congregation ignored Bishop White's ultimatum, and Bishop White acknowledged that it had moral force only: he had no legal basis to assert ownership for the Church in any court of law. After also being turned down for ordination by Bishop Seabury of Connecticut, Freeman was "ordained by the Senior Warden of King's Chapel, in the name of the congregation, in words still used in ordinations at King's Chapel today: 'to be the Rector, Minister, Priest, Pastor, Public Teacher and Teaching Elder.'"

However, according to ECUSA's expert Dr. Mullin, and the findings made by Judge Karpf based on his declaration, what happened with King's Chapel simply could not have happened. All Anglican church properties were, you see, held "in an implied trust" for the "National Church" following the Revolution. Isn't it annoying when your theory simply will not fit in with the actual historical facts?

The same "implied trust" doctrine was of no avail to PECUSA when the Rev. Dr. Charles Cheney, of Christ Church in Chicago, left with his congregation in 1871 to affiliate with the Reformed Episcopal Church, which had ordained him as a bishop. The Diocese of Illinois first deposed him, and then brought suit in the name of three former parishioners to regain possession of the church property. In its 1879 decision, Calkins v. Cheney, the Illinois Supreme Court held that the property belonged to the parish, which held the deed. The courts of Illinois could determine questions of title only by looking to matters of public record, said the Court, and not to any implied trust arising out of a religious polity.

The entire implied trust doctrine was declared unconstitutional by the Supreme Court of the United States in 1969, as I have explained in this previous post. Judge Karpf shows his failure to understand this point of law when he writes:
Defendants’ reliance on Presbyterian Church v. Eastern Heights Presbyterian Church, 225 Ga. 259 (1969), for the proposition that implied trusts over all church property have been abolished, is misplaced. First, that case was decided prior to Jones v. Wolf, 443 U.S. 595 (1979), which distinguished and explained it.
Not only was that case decided before Jones v. Wolf, Judge Karpf -- it was the Georgia Supreme Court's holding on remand after it had been reversed by the U.S. Supreme Court! It was the predecessor to that decision, with the same title but appearing in Volume 224 of the Georgia Reports at page 61 (159 S.E.2d 690), which had held -- just as Judge Karpf does -- that the parish property was subject to an implied trust in favor of the national denomination. On appeal to the United States Supreme Court (under the name Presbyterian Church v. Hull Church [1969] 393 U.S. 440), that court reversed the Georgia decision and stated unequivocally (393 U.S. at 450; emphasis added):
Since the Georgia courts on remand may undertake to determine whether petitioner is entitled to relief on its cross-claims, we find it appropriate to remark that the departure-from-doctrine element of Georgia's implied trust theory can play no role in any future judicial proceedings.
Why, then, does Judge Karpf think that some vestige of the implied trust doctrine can remain, so long as it is not based on any determinations of "departure-from-doctrine"? His explanation of Georgia cases post-Jones does not adequately account for their actual holdings. Listen first to what Judge Karpf says:
Second, subsequent Georgia cases have also noted that the prohibition in Presbyterian Church was to an implied trust theory based on a departure from doctrine, where a court would have to decide the ecclesiastical issue, i.e., did the larger church depart from the tenets of faith such as would defeat the implied trust. See Carnes v. Smith, supra; Coles v. Wilburn, 241 Ga. 322 (1978); Crocker v. Stevens, 210 Ga. App. 231 (1993), disapproved on other grounds, Kim v. Lim, 254 Ga. App. 627 (2002). No such issue is presented in the case at bar.
Let us examine more closely what Judge Karpf appears to be saying with this argument. He first acknowledges that the implied trust doctrine was ruled unconstitutional by both the Georgia and the United States Supreme Courts. Then, however, he explains that his reading of the cases teaches him that only implied trusts which were based on determinations of which faction in a church remained truer to the original tenets of the faith were declared unconstitutional. The clear implication is that other rationales for imposing an implied trust remained intact -- but is this reading of the cases correct?

Now look at how the United States Supreme Court in Jones v. Wolf read what happened in Georgia following the Hull Church reversal -- in contrast to Judge Karpf's reading (I have added the bold for emphasis):

On remand, the Georgia Supreme Court concluded that, without the departure-from-doctrine element, the implied trust theory would have to be abandoned in its entirety. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S. E. 2d 658 (1969) (Presbyterian Church II). In its place, the court adopted what is now known as the "neutral principles of law" method for resolving church property disputes. The court examined the deeds to the properties, the state statutes dealing with implied trusts, Ga. Code 108-106, 108-107 (1978), and the Book of Church Order to determine whether there was any basis for a trust in favor of the general church. Finding nothing that would give rise to a trust in any of these documents, the court awarded the property on the basis of legal title, which was in the local church, or in the names of trustees for the local church. 225 Ga., at 261, 167 S. E. 2d, at 660. Review was again sought in this Court, but was denied. 396 U.S. 1041 (1970).

The neutral-principles analysis was further refined by the Georgia Supreme Court in Carnes v. Smith, 236 Ga. 30, 222 S. E. 2d 322, cert. denied, 429 U.S. 868 (1976). That case concerned a property dispute between The United Methodist Church and a local congregation that had withdrawn from that church. As in Presbyterian Church II, the court found no basis for a trust in favor of the general church in the deeds, the corporate charter, or the state statutes dealing with implied trusts. The court observed, however, that the constitution of The United Methodist Church, its Book of Discipline, contained an express trust provision in favor of the general church. [Footnote omitted.] On this basis, the church property was awarded to the denominational church. 236 Ga., at 39, 222 S. E. 2d, at 328. . .

None of this sounds as though there was any authority granted by either the United States Supreme Court or the Georgia Supreme Court to continue to resolve title questions on any kind of implied trust doctrine -- as the former observed, the latter ordered that the doctrine "be abandoned in its entirety", and not just as to its departure-from-doctrine aspect. If a court has to look into a church's history and polity to determine that there was always an implied trust relationship between parishes and the denomination, it will be engaging in the same unconstitutional evaluation and weighing of religious language and doctrines as it did in deciding whether there had been a "departure from doctrine." Any such implied trust, if it can be created only out of a subordinate religious relationship and not from any objective words of trust written on paper, is purely a creation of religious doctrine and polity -- which the Hull decision says "can play no role in any future judicial proceedings."

Thus Judge Karpf pays lip service to deciding the current case on "neutral principles", but by resurrecting the implied trust doctrine forty years after it was laid to rest, he has thrown out neutral principles and reverted to the law as it was pre-Hull Church.

Judge Karpf also misreads two Georgia statutes which appear to codify the implied trust doctrine by declaring the existence of an express trust with regard to certain conveyances of land to churches. The precise language of the statutes cannot be applied to Christ Church, because it did not receive its land by "deeds of conveyance" -- it received a land grant from the colonial legislature. Watch how Judge Karpf tries to blur the clear language of the statutes:

At the time Christ Church was incorporated and the Legislature confirmed its land grant, it was a congregational church, unaffiliated with either the Diocese or the National Church. When the church joined the hierarchy in 1823, the two code sections had been promulgated eighteen years earlier. By taking the steps to affiliate itself with the larger church body, Christ Church made itself subject to the code sections. Even though the first part of OCGA § 14-5-46 did not change the status of the church’s title to its property, which was already valid by the earlier act of the Legislature, the second sentence became applicable.
This is bootstrap reasoning, and not legitimate legal argument at all. "By taking steps to affiliate with the larger church body", just how did Christ Church "make itself subject" to two laws dealing with deeds to churches? Judge Karpf claims that the parish's joining the Diocese made the "second sentence" of the statute applicable to it, even though the first sentence did not apply to its land. How can that be? And what does this second sentence of the statute in question say, in order to accomplish this magical feat? Take a look:
All lots of land so conveyed shall be fully and absolutely vested in such church or religious society or in their respective trustees for the uses and purposes expressed in the deed to be held by them or their trustees for their use by succession, according to the mode of church government or rules of discipline exercised by such churches or religious societies.
In his opinion, Judge Karpf places the entire sentence in italics for emphasis. I have changed his emphasis to highlight the two little words he appears to have missed. This sentence spells out how the land "so conveyed" to a church shall be held and used: the reference "so conveyed" takes us right back to the first sentence, which Judge Karpf admitted did not apply to Christ Church, or modify the terms on which it held its property. Thus if the first sentence did not apply to Christ Church when it joined the Diocese of Georgia, nothing in the second sentence could have applied to it, either. The second sentence is completely dependent on the first.

Judge Karpf's reference to a second statute is just as ineffective, because it, too, refers back to the statute just quoted -- which cannot apply to Christ Church. It reads:
All trustees to whom conveyances are or shall be executed, for the purposes expressed in Code Section 14-5-46, shall be subject to the authority of the church or religious society for which they hold the same in trust . . .
This statute does not apply to Christ Church for another reason: it applies only to conveyances (and Christ Church did not, as Judge Karpf acknowledges, receive its land by conveyance) executed after the statute's effective date --"which are or shall be executed . . ." Christ Church was granted its land well before the enactment of the statute. Thus Judge Karpf is just wrong when he concludes that the two statutes support the existence of the trust supposedly created by the Dennis Canon. They simply do not apply to the situation of Christ Church.

There is much, much more in the decision that is wrongly reasoned, and wrongly decided, but it would be too tedious to work through all the details. One more example shall have to suffice. Towards the end of his opinion, Judge Karpf deals summarily with Christ Church's argument that the Diocese of Georgia's own canons insulate its property from the trust of the Dennis Canon:
Defendants’ reliance on Canon II.8 of the Diocese of Georgia is misplaced. The canon does state that “[n]othing in these Canons shall prejudice the legal rights of any Parish or Vestry already existing by act of incorporation.” However, diocesan canons are subordinate to the canons of the National Church.13 To the extent that II.8 and the Dennis Canon conflict, the Dennis Canon would control.
And what is the source for this blanket assertion that "diocesan canons are subordinate to the canons of the National Church"? Footnote 13 spells it out: "The Episcopal Church Const. art. V, § 1; Mullin Aff. ¶ ¶ 15 and 22." I have enough familiarity with Dr. Mullin's declarations to know that he simply asserts they are subordinate, without any reference to language making them so. But the reference to Article V, § 1 of the Constitution utterly fails to convince. That section says only that as a condition of joining the Church, the Diocese of Georgia had to accede to the Church's Constitution and Canons back then. As I have already noted, Dioceses routinely refuse to comply with or give effect to canons with which they disagree -- many allow open communion, and still more allow same-sex marriages in defiance of the Book of Common Prayer (whose authority is superior to that of the Canons).

Moreover, even if the national canons would have to be read in conjunction with diocesan ones, there is no conflict between the Dennis Canon and Georgia's Canon II.8. The former purports to make the Church and the Diocese the beneficiaries of a trust in the parish's property. But as we already know, ECUSA is a common-law association which is incapable of holding any interest in property, so the trust interest supposedly created for it is of no effect. That leaves the Diocese of Georgia, which as a beneficiary is perfectly capable of waiving its right to the trust -- and it appears to have done so with its Canon II.8, as to properties held by parish corporations before the date of its enactment. It agreed not to prejudice those pre-existing rights, and the Dennis Canon constitutes an extreme prejudice to those rights.

Enough said. Judge Karpf's decision is too full of mistakes to stand on appeal. One might be hopeful about the Supreme Court of Georgia's reluctance to touch any "implied trust" argument with a ten-foot pole after having two of its earlier decisions taken up by the United States Supreme Court. The first was reversed outright (Hull Church), and in the second one, the Court said: "You almost got it right this time with your neutral principles approach, but . . ." If the Georgia Supreme Court sticks to true neutral principles, stays away from the two inapplicable statutes relied upon by ECUSA, and reads Canon II.8 as a waiver of imposing the Dennis Canon on pre-existing parish corporations, then Christ Church might just keep its property. Only time will tell.

Tuesday, October 27, 2009

History Repeats Itself: the First Church Property Suit

Eusebius, the great historian of the early Church, recounts in one passage what has to be one of the earliest lawsuits over Church property. The setting is the center of early Christianity, the city of Antioch in Syria, where followers first called themselves Christians. It was the third largest city in the Roman Empire, and by the third century had become the seat of a patriarchate founded by St. Peter himself, before he went to Rome.

By the third century as well, the Roman Empire was in an advanced state of decline from its days of glory during the reign of Augustus, while Jesus was still a young man. In 235 A.D. Roman soldiers murdered their emperor, Alexander Severus. Shortly afterwards, the Romans were defeated in a campaign against the Sassanid Empire to the east. Following its defeat, the Roman army broke up into quarreling factions, each led by a general vying for power. In 260, one such general who had clawed his way to the top, the Emperor Valerian, was actually captured by the Goths after his defeat at the Battle of Edessa. As the towns and villages at the borders of the Empire were being ransacked by invading barbarians, and Rome remained unable to coordinate a defense, the western provinces of Britain, Gaul and Hispania broke off, to form the Gallic Empire.

In the East, the governor Septimus Odaenathus, who had been bestowed the title of King of Palmyra by Valerian's son, Gallienus, had a very powerful and influential wife, Zenobia. When Septimus, at her urging, was on the point of also breaking away from the greatly weakened Roman Empire, his nephew assassinated him in revenge for having been briefly incarcerated. Zenobia immediately had her infant son Vaballathus crowned King of what now became the Palmyrene Empire, but she was the actual ruler behind the throne. Without any opposition from Rome, her legions conquered Egypt, Syria, Palestine, Lebanon and Asia Minor.

In the city of Samosata, in what is now eastern Turkey (present-day Samsat, now surrounded by an artificial lake created by the Atatürk Dam), a major settlement on the banks of the upper Euphrates River which in the previous century had been the home of the Greek satirist Lucian, there was born in A.D. 200 a certain Paul, about whom we know little until he was made Bishop of Antioch in 260. Since as Bishop he remained known as "Paul of Samosata", he was probably active in the church for some years earlier. What little we know of him today is not flattering, however, and comes largely from a letter written to the bishops of Rome and Alexandria by the synod at Antioch in 269, when its members voted to depose Paul. This letter is quoted by Eusebius (Book VII, ch. 30), and you can read it online. At issue was a heresy which Paul preached, an early version of Adoptionism known as Monarchianism. The Catholic Encyclopedia describes Paul's doctrine as follows:
We can gather these points: the Father, Son, and Holy Ghost are but a single Person (prosopon). The Son or Logos is without hypostasis, being merely the wisdom and science of God, which is in Him as reason is in a man. Before all worlds He was born as Son (Logos prophorikos) without a virgin; he is without shape and cannot be made visible to men. He worked in the Prophets, especially in Moses (let us remember that Zenobia was a Jewess, and that this monarchianism may have been intended to please her), and in a far higher way in the Son of David who was born by the Holy Ghost of a Virgin. The Christ, the Saviour, is essentially a man, but the Holy Ghost inspired Him from above. The Father and the Son are one God, whereas Christ is from the earth with a personality of his own. Thus there are two Persons in Christ. . . . Mary did not bring forth the Word, for she did not exist before the worlds, but a man like to us. Paul [of Samosata] denied the inference that there are two Sons.

How could he deny that he was not describing two separate persons as one and the same Christ? Because he posited a mystical union of the divine personality with that of the human:
Union of two Persons is possible only by agreement of will, issuing in unity of action, and originating by love. By this kind of union Christ had merit; He could have had none had the union been by nature. By the unchangeableness of His will He is like God, and was united to Him by remaining pure from sin. By striving and suffering He conquered the sin of our first parent, and was joined to God, being one with Him in intention and action. God worked in Him to do miracles in order to prove Him the Redeemer and Saviour of the race. . . . The baptism of Christ, as usual, was regarded by Paul as a step in His junction with the Logos. If He had been God by nature, Paul argued, there would be two Gods. He forbade hymns to Christ, and openly attacked the older (Alexandrian) interpretations of Scripture.
The synod of bishops which gathered at Antioch had to meet several times to deal with Paul and his teachings, because at first he backed down when confronted, and promised to mend his ways. Eusebius quotes the letter they wrote after finally voting to depose him in 269:
“We sent for and called many of the bishops from a distance to relieve us from this deadly doctrine; as Dionysius of Alexandria and Firmilianus of Cappadocia, those blessed men. The first of these not considering the author of this delusion worthy to be addressed, sent a letter to Antioch, not written to him, but to the entire parish . . . .

4. But Firmilianus came twice and condemned his innovations, as we who were present know and testify, and many others understand. But as he promised to change his opinions, he believed him and hoped that without any reproach to the Word what was necessary would be done. So he delayed the matter, being deceived by him who denied even his own God and Lord, and had not kept the faith which he formerly held.
Eusebius then quotes a passage in which the Antioch Christians describe the manner of life which Paul of Samosata led:

7. “Whereas he has departed from the rule of faith, and has turned aside after base and spurious teachings, it is not necessary,—since he is without,—that we should pass judgment upon his practices: as for instance in that although formerly destitute and poor, and having received no wealth from his fathers, nor made anything by trade or business, he now possesses abundant wealth through his iniquities and sacrilegious acts, and through those things which he extorts from the brethren, depriving the injured of their rights and promising to assist them for reward, yet deceiving them, and plundering those who in their trouble are ready to give that they may obtain reconciliation with their oppressors, ‘supposing that gain is godliness’ [1 Tim. vi. 5] ;—

8. or in that he is haughty, and is puffed up, and assumes worldly dignities, preferring to be called ducenarius, rather than bishop [Paul was the “Procurator Ducenarius” of Zenobia, the queen of Palmyra, an official so-called because his salary was 200 sestertia -- we know from Athanasius that he was a great favorite with Zenobia, and that to her he owed the privilege of retaining his bishopric after the synod had deposed him]; and struts in the market-places, reading letters and reciting them as he walks in public, attended by a body-guard, with a multitude preceding and following him, so that the faith is envied and hated on account of his pride and haughtiness of heart;—

9. or in that he practices chicanery in ecclesiastical assemblies, contrives to glorify himself, and deceive with appearances, and astonish the minds of the simple, preparing for himself a tribunal and lofty throne, —not like a disciple of Christ,—and possessing a ‘secretum’ [the name of the place where the civil magistrates and higher judges sat to decide cases, raised and enclosed with railings and curtains in order to separate it from the people; in the present case it means a sort of cabinet which Paul had at the side of the tribunal he had built, in which he could hold private conferences], —like the rulers of the world,— and so calling it, and striking his thigh with his hand, and stamping on the tribunal with his feet;—or in that he rebukes and insults those who do not applaud, and shake their handkerchiefs as in the theaters, and shout and leap about like the men and women that are stationed around him, and hear him in this unbecoming manner, but who listen reverently and orderly as in the house of God;—or in that he violently and coarsely assails in public the expounders of the Word that have departed this life, and magnifies himself, not as a bishop, but as a sophist and juggler,

10. and stops the psalms to our Lord Jesus Christ, as being the modern productions of modern men, and trains women to sing psalms to himself in the midst of the church on the great day of the passover, which any one might shudder to hear, and persuades the bishops and presbyters of the neighboring districts and cities who fawn upon him, to advance the same ideas in their discourses to the people.
Are you beginning to get the measure of the man? Quoting the letter, Eusebius adds even more damning detail (I will wager you had not heard of "subintroductæ" before):
11. For to anticipate something of what we shall presently write, he is unwilling to acknowledge that the Son of God has come down from heaven. And this is not a mere assertion, but it is abundantly proved from the records which we have sent you; and not least where he says ‘Jesus Christ is from below.’ But those singing to him and extolling him among the people say that their impious teacher has come down an angel from heaven. And he does not forbid such things; but the arrogant man is even present when they are uttered.

12. And there are the women, the ‘subintroductæ,’ as the people of Antioch call them [see also this link, and see Canon III adopted at Nicaea, quoted toward the bottom of the previous link], belonging to him and to the presbyters and deacons that are with him. Although he knows and has convicted these men, yet he connives at this and their other incurable sins, in order that they may be bound to him, and through fear for themselves may not dare to accuse him for his wicked words and deeds. But he has also made them rich; on which account he is loved and admired by those who covet such things.

13. We know, beloved, that the bishop and all the clergy should be an example to the people of all good works. And we are not ignorant how many have fallen or incurred suspicion, through the women whom they have thus brought in. So that even if we should allow that he commits no sinful act, yet he ought to avoid the suspicion which arises from such a thing, lest he scandalize some one, or lead others to imitate him.

14. For how can he reprove or admonish another not to be too familiar with women,—lest he fall, as it is written, —when he has himself sent one away already, and now has two with him, blooming and beautiful, and takes them with him wherever he goes, and at the same time lives in luxury and surfeiting?

15. Because of these things all mourn and lament by themselves; but they so fear his tyranny and power, that they dare not accuse him.
That last paragraph reminds me, somehow, of the situation today in a Church with which I am familiar. Plus ça change, plus c'est la même chose . . .

The editor of Eusebius' text adds a note at this point, as follows:
We get a glimpse here of the relative importance of orthodoxy and morality in the minds of these Fathers. Had Paul been orthodox, they would have asked him to explain his course, and would have endeavored to persuade him to reform his conduct; but since he was a heretic, it was not worth while. It is noticeable that he is not condemned because he is immoral, but because he is heretical. The implication is that he might have been even worse than he was in his morals and yet no decisive steps have been taken against him, had he not deviated from the orthodox faith. The Fathers, in fact, by their letters, put themselves in a sad dilemma. Either Paul was not as wicked as they try to make him out, or else they were shamefully indifferent to the moral character of their bishops, and even of the incumbents of their most prominent sees.
What about the lawsuit over Church property? you ask. I'm getting there; still setting the scene. After the council voted to depose and excommunicate him, Paul of Samosata invoked the protection of Zenobia, and continued to occupy the see in Antioch, and to conduct services as before. The same council of assembled bishops (afraid to let the local Diocese elect a new bishop on its own because they knew the hold which Paul had, through fear of retribution, on the local priests and deacons) themselves appointed a new bishop of Antioch, one Domnus by name. But Paul refused to let Domnus take his position, and retained his possession of the church in Antioch. Because of Zenobia's power, the assembled bishops could do nothing for the time being.

Roman politics were changing in the meantime, however -- a new soldier-emperor had emerged, the Emperor Aurelian. After consolidating his power in Rome, he systematically began reclaiming the parts of the Empire which had left, beginning with driving the Vandals and the Alemanni out of northern Italy, and the Goths out of the Balkans. In A.D. 272 he invaded Asia Minor, and Zenobia's Palmyrene Empire began to crumble. When Aurelian advanced to the gates of her capital, Zenobia tried to flee, and the city surrendered. Zenobia was captured and paraded in golden chains through the streets of Rome. She must have been an impressive woman still, because Aurelian freed her. He granted her a splendid villa in what is now Tivoli, and she became "a prominent philosopher, socialite and Roman matron."

Now to the lawsuit. With the capture of Zenobia, Paul of Samosata lost his protection. As Eusebius briefly recounts, the bishops appealed to the Emperor for assistance in removing him (probably while Aurelian was still in Asia Minor):
18. As Paul had fallen from the episcopate, as well as from the orthodox faith, Domnus, as has been said, became bishop of the church at Antioch.

19. But as Paul refused to surrender the church building, the Emperor Aurelian was petitioned; and he decided the matter most equitably, ordering the building to be given to those to whom the bishops of Italy and of the city of Rome should adjudge it.
This was unusual, to say the least, but it shows the advantages of universal Roman law. Even though Christianity had been a religion persecuted by many previous Emperors, Aurelian stepped into the dispute and in a precursor of what would become known as the "deference" approach, allowed the Church in Italy and Rome to adjudicate the ownership of the Church property at Antioch. Paul was finally removed from the building, and no more is heard of him ever again.

Eusebius adds this further note about Aurelian and the early Church:
20. Such was Aurelian’s treatment of us at that time; but in the course of his reign he changed his mind in regard to us, and was moved by certain advisers to institute a persecution against us. And there was great talk about this on every side.

21. But as he was about to do it, and was, so to speak, in the very act of signing the decrees against us, the divine judgment came upon him and restrained him at the very verge of his undertaking, showing in a manner that all could see clearly, that the rulers of this world can never find an opportunity against the churches of Christ, except the hand that defends them permits it, in divine and heavenly judgment, for the sake of discipline and correction, at such times as it sees best.

The "divine judgment" to which Eusebius refers was the murder of Aurelian by his own officers. Always a stickler for discipline, Aurelian had a secretary who feared the Emperor would find out about a trivial lie he had told. To forestall his punishment, the secretary forged a document under Aurelian's signature which purported to list high-ranking officers whom Aurelian planned to execute. The secretary showed the document to those who were named, and they plotted his murder instead. Over such trifles do the mighty fall!

The "Crisis of the Third Century" resumed with a rash of short-lived emperors. It continued until Diocletian came to power in 284, and set about once again rebuilding the Empire (until his abdication due to poor health in 305). That turned out to be very bad for the Christians in Rome and elsewhere, who had to endure renewed persecution until Constantine finally came to power and made Christianity the official State religion. And that elevation, as we now know, led to the gradual enmeshing of the Church in all manner of temporal affairs.

The first Church property lawsuit does not differ in its outward particulars much from the ones it still fights today. A holdover bishop is deposed, but with his followers retains possession of the church building, and the State is finally asked to intervene to determine the property's true and rightful owner. What has changed are the internal reasons for the bishop's "deposition" in the first place. Paul of Samosata was an energetic heretic, and the early Church could not allow him a base from which to spread his heresy. Today, the Church deposes its bishops for refusing to adopt a heresy, then lays claim to the property of all those it has forced out, and ends up putting it on the market, since it is surplus for which the Church has no other use.

The buildings and property once used to preach "the faith once delivered to the saints" -- meaning the faith as it was first preached in Antioch, long ago -- are left empty. The message goes on being preached, but from a new location. The Church thus demonstrates once again that it is people who make a church, not buildings and pews. And time marches on.

Monday, October 26, 2009

Finally: An Insider Tells off the Legislature

This is a unique moment in the annals of political history. California's State Treasurer, Bill Lockyer, who is a former Attorney General and also served as President of the State Senate -- he has been in elective office continually since 1973 -- tells off his fellow Democrats in the California Legislature: "Just stop it! [He is referring to their passing reams of meaningless, "junk" legislation while the State crashes and burns around them.] If you don't fix the California pension system, the State will go bankrupt -- but I don't think there's anyone here who can fix it, because of who elected you [the unions, the lobbyists and the government employees who all benefit from the current system]."

Take a look at this short video excerpt and marvel, because you will never see this or read about it in the mainstream media:

Friday, October 23, 2009

Friday TED Talk: Itay Talgam on Leading without Words

This was one of my all-time favorite talks given at the 2009 TED Global Conference. I studied music theory and composition as an undergraduate, and played in my share of orchestras, so this talk was literally music to my ears. Itay Talgam, who is no slouch of a conductor himself, uses rare old footage to illustrate how six master conductors approach and solve the problem of how one brings a 100-piece orchestra together into a performance of stunning effect and beauty, with only non-verbal communication:

You can read more about Itay Talgam here; and you really should watch this talk in its high-res version here to get the most out of the old footage he uses. He has a homepage here, which goes into more depth about his application of conducting techniques to achieving better teamwork in businesses. You can download the talk in that and other formats from this page.

Thursday, October 22, 2009

The Bandit Bishop: Presiding Judge, Jury and Executioner

It is bad enough that the Episcopal Church (USA) has been saddled with a Presiding Bishop who cannot, and will not, recognize the limitations on her authority imposed by the Constitution and Canons of the Church. (If you have not done so already, please read Mike Watson's outstanding paper on the PB's authority, and her abuses of it, posted at the ACI website.) Now, in the case of Bishop Keith Ackerman, we have crystal-clear proof of the fact that she has arrogated to herself all the functions of the Court for the Trial of a Bishop. (Bishop Bennison was lucky, as it turns out. He was probably the last bishop in ECUSA to receive a full-blown trial by (and appeal to) a court of his peers.)

The proof comes from the Lord High Executioner herself, in the form of a message sent to the House of Bishops by way of a response to the charges raised in this post and all over the Episcopal blogosphere -- but not, apparently, by any members of the House (at least, not openly):

There have been several questions asked regarding Keith Ackerman and acceptance of his renunciation of orders in the Episcopal Church.

Acceptance of Keith Ackerman’s renunciation of orders in The Episcopal Church was the result of consultation with my Council of Advice, and based on his written submission to me describing his intention to function as a bishop in the Diocese of Bolivia, in the Province of the Southern Cone and requesting that he be "transferred" to that church and thus out of the Episcopal Church. It is also based on his public participation in, and signature on a document affirming, the election of Robert Duncan as “archbishop” of ACNA.

Acceptance of his renunciation says nothing about the indelibility of his orders. It does clarify the reality that he is no longer permitted to function as a bishop in The Episcopal Church.

We have been and will be consistent regarding our canons, which clearly state that The Episcopal Church can accept the ministry of a bishop of The Episcopal Church functioning temporarily in another province of the Anglican Communion, when it is clear that that province does not seek to undermine or replace the ministry of this Church. Such temporary duty requires the full and informed consent of the respective ecclesiastical authorities. The ministry of Mark McDonald is an example, but as his position becomes permanent, his loyalty will have to be to the Anglican Church of Canada, rather than The Episcopal Church, and a recognition of his renunciation of orders in this Church will be necessary.

Yours in Christ,

The Most Rev. Katharine Jefferts Schori
Presiding Bishop and Primate
First, note the affirmation (although we did not need it) of the complicity of her Council of Advice in this sorry affair. (I note in passing that the "Council of Advice" currently amounts to an Episcopal version of the Star Chamber, since its current roster is nowhere to be found on the official ECUSA website. All they have is the list of members who served from GC 2006 until GC 2009 -- and even to find that, one has to do a site search, since the usual link to the CCAB page has been replaced.)

Second, note the persistence in her misreading of what Bishop Ackerman told her. She claims that Bishop Ackerman declared in his letter to her "his intention to function as a bishop in the Diocese of Bolivia." Since she stubbornly refuses to make his letter public, we have to judge the objective circumstances in this. What Bishop Ackerman says makes complete sense, in light of the actual facts: he says he explained to her that he had been invited to attend meetings of the House of Bishops of the Southern Cone, where he would not have either voice or vote (see my previous post). In other words, while working in Bolivia he would receive respect for his title as a bishop, but he would not function as a bishop in the Diocese of Bolivia. This distinction utterly escapes our Most Reverend Judge, who simply does not know what it means to function as a bishop of the one, true, catholic and apostolic church -- and that is her first failure in this matter.

The next bit is equally telling: "based on his written submission to me . . . requesting that he be 'transferred' to that church and thus out of the Episcopal Church." The "thus" clause does not follow at all, unless you are acting as Judge and Jury together. Again, since she will not let us see the letters so that we may judge her actions for ourselves, we have to trust Bishop Ackerman here. Bishop Ackerman's diocese of canonical residence, the Diocese of Quincy, had withdrawn from ECUSA, thereby creating a chicken-and-egg problem for him. As a bishop with resigned status, he was subject to the Ecclesiastical Authority of that Diocese -- but just who would that be, canonically speaking? There had been the usual "special convention" called without proper notice or quorum, at which a "Provisional Bishop" hand-picked by Yours Truly had been "approved." Bishop Ackerman was not going to receive any warm welcome there -- they had moved to freeze the Diocese's bank accounts, and thus cut off its ability to pay his health insurance, remember? So he wrote to the Presiding Bishop, asking if he needed a transfer in order to earn some money while carrying on his mission work to the poor in Bolivia.

In retrospect, that action had all the sagacity of Little Red Riding Hood placing her trust in the creature that was dressed up as her grandmother. And note that, just like the big bad wolf, the Presiding Bishop lured him into her trap by promising him, as Bishop Ackerman informs us, that she would, after consultation with her Star Chamber Council of Advice, send him the "appropriate papers."

Now we learn from this latest message that she had no such intention of transferring him at all. Bolivia was not just another diocese in a sister province of the Anglican Communion -- it was the Camp of the Enemy, whose actual bishop, the Rt. Rev. Frank Lyons, was bent on "undermining and replacing the ministry of this Church." (It's funny -- my copy of the Canons is missing that language in the definition of what constitutes "abandonment of communion" or "renunciation of Ministry".) Thus, her verdict had to be "Guilty by association". Never mind that Bishop Ackerman was going there to carry on his work of ministering to the poverty-stricken inhabitants of that Diocese.

So instead of consulting her Star Chamber about what to do with Bishop Ackerman's request, we now know that she sent his letter to them and asked whether she could treat it as a convenient written renunciation of his ordained Ministry, pursuant to Canon III.12.7. And to sugar-coat the pill, she included this damning datum: that Bishop Ackerman had publicly participated in -- and yes, had even dared to sign -- "a document affirming the election of Robert Duncan as 'archbishop' of ACNA."

Oh, we can see the scorn literally dripping off that word "archbishop", which she includes in quotation marks and refuses even to capitalize. So that was Bishop Ackerman's real offense!

But, be careful, now -- we are getting into the realm of "abandonment of the communion of this Church", and to proceed under that Canon would require a messy vote in the House of Bishops itself. There it might prove that Bishop Ackerman's years of humble and godly service to ECUSA still earned him a fair measure of respect among his colleagues, such that they might not play along with such a move. So that maneuver is out.

Back to Square One -- treat his letter as a "renunciation" of his Ministry -- even though it specifically states it is not. But when called upon to justify your treating it as such, throw in that bit about participating in the installation of that d---d "archbishop" -- er, archrival.

So now we have gone from Judge and Jury to Executioner, in one fell swoop. No charges were made to the Title IV Review Committee, or inhibition imposed; no trial before the House of Bishops has taken place; and no resolution to depose was moved and voted on. Judgment and sentence of renunciation has been pronounced without bothering to request the "renouncer" even for a clarification of his intent, because that could muddy the waters.

Katharine Jefferts Schori, you are a disgrace to all who profess and call themselves Christian. The title of "Bandit Bishop" is what most suits. You now stand convicted, yourself, out of your own mouth, of conduct unbecoming a member of the clergy. If the House of Bishops is too spineless to depose you for your abuses of the Canons (how fortunate that you specialized in the study of marine invertebrates), you should accept your own renunciation of the ordained Ministry, and step down.

Wednesday, October 21, 2009

Canon Law Background of the Pontiff's Proposal

We are still some time away, I think, from seeing the actual text of the canonical structure which Pope Benedict XVI proposes to establish in accordance with the Vatican's announcement on October, 20, 2009. Because there is so much speculation on the Web about what it will entail, I thought I would provide some canon law background to inform the debate.

First of all, the announcement speaks of the promulgation of an "Apostolic constitution." Wikipedia proves unusually helpful here. It explains that an Apostolic constitution (Lat. constitutio apostolica) "is the highest level of decree issued by the Pope of the Roman Catholic Church." As such it issues as a papal bull (named for the metal bulla with which such decrees were sealed in times past), with a Latin title and the beginning words (in the case of Benedict XVI): "Benedictus, Episcopus, Servus Servorum Dei . . . ["Benedict, Bishop, Servant of the Servants of God . . ."]. A papal bull, in turn, is a subclass (particular to the Pope) of what are called letters patent, which a government or monarch issues to confer certain rights, status and/or privileges upon a territory, organization or class of people.

So that is what the "Apostolic constitution" will do when it is issued: it will be a formal charter establishing the canonical terms and conditions upon which the "personal ordinariates" which it creates are to come into being and to continue to exist within the Roman Catholic Church. Now as to the personal ordinariates: they are an amalgam of two already existing structures in the canon law of the Church: personal prelatures and military ordinariates.

Personal prelatures were made a feature of the 1983 Code of Canon Law after they were established by Pope Paul VI following a recommendation by the Second Vatican Council. Here are the sections of the Code which deal with them:



Can. 294 After the conferences of bishops involved have been heard, the Apostolic See can erect personal prelatures, which consist of presbyters and deacons of the secular clergy, to promote a suitable distribution of presbyters or to accomplish particular pastoral or missionary works for various regions or for different social groups.

Can. 295 §1. The statutes established by the Apostolic See govern a personal prelature, and a prelate presides over it as the proper ordinary; he has the right to erect a national or international seminary and even to incardinate students and promote them to orders under title of service to the prelature.

§2. The prelate must see to both the spiritual formation and decent support of those whom he has promoted under the above-mentioned title.

Can. 296 Lay persons can dedicate themselves to the apostolic works of a personal prelature by agreements entered into with the prelature. The statutes, however, are to determine suitably the manner of this organic cooperation and the principal duties and rights connected to it.

Can. 297 The statutes likewise are to define the relations of the personal prelature with the local ordinaries in whose particular churches the prelature itself exercises or desires to exercise its pastoral or missionary works, with the previous consent of the diocesan bishop.

As you see, personal prelatures are established by the Holy See "after the conferences of bishops involved have been heard." They have the inherent right to establish seminaries and to "incardinate" their students, i.e., place them under the jurisdiction of the prelate for later ordination and advancement. This will be a feature important to Anglo-Catholics, which is expected to be preserved in the creation of "personal ordinariates."

The only personal prelature to have been established to date is Opus Dei, the organization known (but poorly) to most people through the fiction of Dan Brown. Pope John Paul II created it by publishing the Apostolic constitution Ut sit in 1982 (the organization had been in existence since its formation in Spain in 1928; the Pope's bull elevated it into a personal prefecture). So that you can see what an "Apostolic constitution" looks like, here are the first six numbered paragraphs (and the last introductory paragraph) of the one that erected Opus Dei:

Therefore, We, with the plenitude of Our apostolic power, having accepted the opinion which Our Venerable Brother the Most Eminent and Most Reverend Cardinal Prefect of the Sacred Congregation for Bishops had expressed to Us, and making good, in so far as it is necessary, the consent of those who have, or think they have some competence in this matter, command and desire the following to be put into practice.


Opus Dei is erected as a personal Prelature, international in ambition, with the name of the Holy Cross and Opus Dei, or, in abbreviated form, Opus Dei. The Sacerdotal Society of the Holy Cross is erected as a clerical Association intrinsically united to the Prelature.


The Prelature is governed by the norms of general law, by those of this Constitution, and by its own Statutes, which receive the name "Code of particular law of Opus Dei".


The jurisdiction of the personal Prelature extends to the clergy incardinated in it, and also—only in what refers to the fulfillment of the specific obligations undertaken through the juridical bond, by means of a contract with the Prelature—to the laity who dedicate themselves to the apostolic activities of the Prelature: both clergy and laity are under the authority of the Prelate in carrying out the pastoral task of the Prelature, as established in the preceding article.


The Ordinary of the Prelature Opus Dei is its Prelate, whose election, which has to be carried out as established in general and particular law, has to be confirmed by the Roman Pontiff.


The Prelature is under the Sacred Congregation for Bishops, and will also deal directly with the other Congregations or Departments of the Roman Curia, according to the nature of the matter involved.


Through the Sacred Congregation for Bishops, the Prelate will present to the Roman Pontiff, every five years, a report on the state of the Prelature, and on the development of its apostolic work.

Now as to military ordinariates: Wikipedia has a list of the ones that have been established around the world. Though they are designated with respect to particular continents and countries, they do not have a geographical territory as such; in this respect they differ from the canonical definition of a diocese, a territorial prelature, and a territorial abbacy:

Can. 369 A diocese is a portion of the people of God which is entrusted to a bishop for him to shepherd with the cooperation of the presbyterium, so that, adhering to its pastor and gathered by him in the Holy Spirit through the gospel and the Eucharist, it constitutes a particular church in which the one, holy, catholic, and apostolic Church of Christ is truly present and operative.

Can. 370 A territorial prelature or territorial abbacy is a certain portion of the people of God which is defined territorially and whose care, due to special circumstances, is entrusted to some prelate or abbot who governs it as its proper pastor just like a diocesan bishop.

In contrast to these, the military ordinariates are a species of what the Code of Canon Law calls an "apostolic vicariate" or "apostolic prefecture" -- hierarchical structures without a defined territory under the control of an "apostolic vicar" or "prefect":
Can. 371 §1. An apostolic vicariate or apostolic prefecture is a certain portion of the people of God which has not yet been established as a diocese due to special circumstances and which, to be shepherded, is entrusted to an apostolic vicar or apostolic prefect who governs it in the name of the Supreme Pontiff.
The Code goes on to provide for the creation of such structures only by the "supreme authority", i.e., the Pope:

Can. 372 §1. As a rule, a portion of the people of God which constitutes a diocese or other particular church is limited to a definite territory so that it includes all the faithful living in the territory.

§2. Nevertheless, where in the judgment of the supreme authority of the Church it seems advantageous after the conferences of bishops concerned have been heard, particular churches distinguished by the rite of the faithful or some other similar reason can be erected in the same territory.

Can. 373 It is only for the supreme authority to erect particular churches; those legitimately erected possess juridic personality by the law itself.

Can. 374 §1. Every diocese or other particular church is to be divided into distinct parts or parishes.

§2. To foster pastoral care through common action, several neighboring parishes can be joined into special groups, such as vicariates forane [Lat. for "deaneries"].

Thus now you can begin to see how the Vatican has conceived of an amalgam of "personal prelatures" and "apostolic vicariates" to come up with "personal ordinariates." It is important to realize that, contrary to what you may have read in some accounts, there are as yet no personal ordinariates established anywhere in the world; there are only military ordinariates, and they are largely different, since their function is to provide pastoral care to Catholics who find themselves stationed temporarily outside the geographical boundaries of any established Catholic diocese. (Likewise, the Pastoral Provision decreed in 1980 for the United States is completely under the supervision of Catholic diocesans, who are regular members of the Catholic hierarchy.) The military ordinariates also have a hierarchical structure, in which the curates and chaplains report to a higher official, who in turn may report to a bishop or archbishop, but the latter may be very distant geographically.

In contrast, according to the Vatican's announcement, the personal ordinariate has been envisioned as a geographically related entity whose "ordinary" will be in close proximity to those whom he supervises, in much the same manner as current Anglican dioceses are organized. However, because there are already Catholic dioceses which cover the entire geographical territory of, say, England, what the Pope proposes to establish to accommodate Anglicans cannot be dioceses in name, though it appears they will be close to them in structure and appearance.

And that brings up another fascinating question. The Church of England itself is not a single monolithic entity, but is an immensely complex conglomeration of individual parish corporations sole, trusts and other forms of property ownership which go back to the early Middle Ages. If you think American property law is complex, try delving into the many forms by which church property is owned and passed on in England. Parliament has tried from time to time to simplify the holdings through legislation, but no one legislative solution has worked, and the various laws and exceptions have served only to add still more layers of complexity. (At least that is my understanding the last time I looked at the matter, after enactment of the Pastoral Measure Code of Practice in 1983. You can download from that link as much as you would ever want to know about parish property in the Church of England.)

Thus, if Anglo-Catholics depart from the Church of England, there can scarcely be any question of their leaving with the local church property. If they organize as a personal ordinariate in a given English area, they will have to make provision for where they will gather for worship, and for how the salaries of their priests (and of the ordinary) will be paid. It will be like starting an entire church from the ground up. It appears that those are some of the problems which Forward in Faith/UK intends to address when it gathers this weekend -- note the discussion of individual and parish finances in the article.

Doubtless Archbishop Rowan Williams would have welcomed a somewhat slower pace of events. Benedict XVI is 82, however, and given that the Code of Canon Law leaves it all up to him, he is not about to wait for the Church of England (or the Anglican Communion, for that matter) to come to a single mind on issues of ecumenical concern -- especially under the painful sort of leadership with which ++Rowan appears to be most comfortable. It was a brilliant stroke on Benedict's part to decide to let the Anglo-Catholics sort things out for themselves under his papal aegis. Just as the departures of its dioceses and the formation of ACNA have left the Episcopal Church (USA) free to walk the path it has chosen for itself, so the departures of the Anglo-Catholics will leave the Church of England free to walk whatever path its remaining constituents can manage to agree upon.

As I discussed in my previous post, however, the prospects of agreement on any single course seem remote. After the CoE ordains women to the episcopate, the same-sex advocates will be sure to follow. Then what will become of the Anglican Communion and its Resolution 1.10 which ++Rowan has so resolutely protected? By then, as I noted, the Global South and GAFCON will have separated themselves from the rest of the Communion by a Covenant which the liberal majorities in both the CoE and ECUSA will refuse to approve (even if the CoE manages to remain an established church). At that point, we will have two separate Communions, and not a two-track one. [UPDATE 10/21/2009: Or will the Global South consider accepting Rome's invitation as well? The implications of that would be truly staggering for the Anglican Communion.]

Benedict and his canon lawyers have moved ahead of the curve with their proposal, while the Anglican Communion, ECUSA and the remnant CoE will all be behind it. ACNA is where the future will now be for traditional American Anglicans, because only it has the structural and organizational flexibility to adapt to the changing church tectonics. After some time, ACNA may branch off into separate parts, some of whom may (also in time) be able to organize personal ordinariates in order to affiliate with Rome. (Watch what happens over the next five years, for example, in Bishop Iker's diocese.)

No wonder there is so little relish for Benedict's plans shown by 815. Their future lies, if at all, still further from Rome, and perhaps in association with the liberals in the Church of England, as a greatly reduced "Anglican Transatlantic Communion" -- if they manage to stay solvent in the coming financial turmoil. (Now is not the time to be investing in vacant properties for sale.) ECUSA is going to get fully what it wished for when it consecrated the Rt. Rev. V. Gene Robinson.