The brief itself is minimal, and makes just a one-paragraph argument. Citing the decisions from California, New York, Pennsylvania and North Carolina that have upheld the trust declared by the Dennis Canon, as well as some earlier decisions from other jurisdictions applying the theory of implied trusts (now disused, as I covered in this post), and even some of the decisions from lower courts which are currently on appeal, ECUSA's three attorneys (David Booth Beers, Mary Kostel and Heather Anderson -- who has left Goodwin Procter and is on her own) argue simply that those decisions were right and South Carolina's was contrary to them, and hence wrong. The Statute of Frauds, which predates the Dennis Canon by more than 300 years, is not mentioned once, and there is zero analysis of the rationale given by the South Carolina Supreme Court for its decision.
In short, the brief serves as a mere placeholder for ECUSA, to keep its options open in the unlikely event that four justices of the Supreme Court vote to grant review. The lack of any serious argument is a signal that ECUSA's attorneys understand perfectly well that the chances of that happening are minimal.
What is even more significant than the news that ECUSA filed a brief in support of the petition is that the Diocese of South Carolina did not. As I analyzed that possibility in this previous post, the case would now be fraught with legal complexities as to who can properly argue against the lower court's decision, should the Court grant the petition for review. Fortunately, however, given that the Court has denied review without comment in all the other church cases it has recently been asked to look at, the odds are more than 99-1 that it will deny review here, as well.
Denial of review will not remove the current bone of contention between the Presiding Bishop and the Bishop of South Carolina, the Rt. Rev. Mark Lawrence. She and her Chancellor will undoubtedly see the Diocese's refusal to join in support of the petition as a betrayal of the dissident parishioners at Waccamaw. No doubt the failure to join (even though, technically speaking, it would not be the Bishop's decision alone to make, but would require the consent of the diocesan standing committee) will be added to the growing dossier of evidence to be submitted by Chancellor Beers to the Title IV Review Committee in the near future, as grounds for first the inhibition and then the deposition of Bishop Lawrence without a trial, for alleged "abandonment of the Communion of this Church." (Bishop Lawrence's failure to attend the upcoming meeting of the House of Bishops that starts in Texas at the end of this week will of course be regarded as yet another such piece of evidence.)
[UPDATE 03/18/2010: Having assumed, from Bishop Lawrence's address to his Diocese last August about "withdrawing from all bodies of governance of TEC that have assented to actions contrary to Holy Scripture", that the language meant he would also not be attending future sessions of the House of Bishops, I am pleased this once to report that I stand corrected: over at Titus 1:9, Father Dow Sanderson confirms that Bishop Lawrence IS attending the session starting tomorrow (his birthday!) at Camp Allen in Texas. That should make it all the more difficult for the Presiding Bishop to embark on "Plan A." As for her "Plan B", were I advising the good Bishop of South Carolina, I would see to it that he addresses no letters or statements to the Presiding Bishop -- even ones that only ask questions.]
Should that dastardly step be taken (and who today has any doubt that the current Presiding Bishop is fully capable of it?), the Church will have come full circle from the time when it first adopted a canon allowing a bishop to be deposed for abandonment. The occasion was General Convention 1853, and the Canon was adopted as new Canon 1. As I explained in this previous post, adoption of the Canon was made necessary by the departure of Bishop Ives of North Carolina to join the Roman Catholic Church.
Thus the "abandonment canon" (currently Canon IV.9, for bishops) was designed for the case when a bishop (or lower clergy, in the case of Canon IV.10) resigned his position in PECUSA to become a communicant in a church not in communion with PECUSA. There is no trial provided under the abandonment canons, because presumably there is no need for one: the departure for another church is already a fait accompli, and the departing bishop or clergy does not contest the fact of his departure.
If Canon IV.9 were now to be misused to "depose" a sitting bishop of the Church, then the only reason to conceive of doing so would be to avoid the necessity of a full-blown trial, with the need for a presentment that would set out in detail exact violations of specific canons of the Church -- dates, times and full circumstances -- which would provide sufficient grounds for deposition. Under Canon IV.9, the facts constituting "abandonment" are whatever the Title IV Review Committee and the Presiding Bishop decide they are. There is no appeal, except to the Presiding Bishop herself -- the kangaroo-court procedure was designed, remember, to apply to bishops and clergy who had already left the Church, and had no intention of returning.
And it is precisely that one-way procedure which will draw our current Presiding Bishop to its misuse. She has shown no restraint whatsoever in her ability to defy the express language of this and other Canons; and she will exercise no restraint in defiling the Canon, either, by applying it to a sitting bishop who is entitled to a full presentment and trial before his peers.
Watch what happens at the upcoming House of Bishops meeting, or perhaps shortly after it concludes. If the Presiding Bishop follows the same pattern as she did with Bishop Duncan, then she will probably take an informal poll, or "sounding", among her colleagues as to whether they will entertain a resolution to depose Bishop Lawrence at their next meeting in September. Neither the poll nor its results will remain secret; since she has no one to check her, the Presiding Bishop is very open about her machinations. But machinations they remain, nonetheless, and to have to use the word in connection with the word "bishop" says all that need be said about what is destroying ECUSA from within. ("Due process" -- or the idea that one does not taint the jury in advance -- is a concept that is as alien to the Chief Kaitiff as it is to Fidel Castro, Hugo Chavez, or any of a number of similarly inspiring and glorious leaders.)
Having improperly and unethically determined in advance (following on the heels of her announcement of the confirmation of a new addition to the membership of the House, the Rev. Canon Mary Glasspool) that she has support from at least a majority of diocesans -- and entirely dispensing with the need for approval by a majority of the full House, including all bishops who have resigned their earlier jurisdictions -- the Presiding Bishop will set yet one more egregious precedent in her most egregious career. She will deploy Canon IV.9 to "depose" a sitting bishop who, far from abandoning ECUSA, remains doggedly within it, and whose only "fault" -- no fault at all, but in fact a trait much to be desired in a bishop -- is being unwilling to sacrifice the welfare of his Diocese to the megalomaniacial and scorched-earth policies of the Church's Presiding Bishop (and, more accurately, its Chief Kaitiff).
The combination of the confirmation of Bishop Glasspool to the episcopate, and the illegal and unwarranted removal from it of Bishop Lawrence, may well touch off fireworks in the rest of the Anglican Communion. The other provinces of the Communion will announce their refusal to recognize the validity of either act, and (just as they did with Bishop Duncan) will continue to regard Bishop Lawrence and his Diocese as one of their own. At that point, the Presiding Bishop and her all-too-willing tools in the House of Bishops and the Diocese of South Carolina will have managed to bring about a self-fulfilling prophecy: they will leave Bishop Lawrence with no alternative but to organize his Diocese in realignment with another branch of the Anglican Communion, and we will have yet one more Diocese that has been forced to leave the Church. And ECUSA will at that point have burned most of the bridges that tied it to the rest of the Anglican Communion.
After such an arbitrary and cynical act, further consideration of the proposed Covenant by ECUSA would have to be regarded as a sick joke. Pressure will then mount on individual Dioceses to adopt the Covenant on their own (in addition to South Carolina, Dallas, Central Florida and Western Louisiana have already done so), and on the Archbishop of Canterbury to recognize those adopting Dioceses as still in communion with the See of Canterbury. The Presiding Bishop will thunder and threaten with deposition all diocesans who lead their dioceses to pass resolutions approving the Covenant before General Convention meets in 2012.
And where will we be then? In a maelstrom of counter-accusation and self-destruction. For as I explained carefully in this post, it will be necessary in any event for the individual dioceses to indicate their approvals of the Covenant before General Convention could take any final action. Unless ECUSA engages in a complete charade (which should not fool the rest of the Communion), and pretends to "ratify" the Covenant through a simple up-or-down resolution enacted at General Convention 2012, the only way for ECUSA properly to sign on to the Covenant would be through a Constitutional amendment. (I think that 815 already recognizes this fact, because they have referred to the constraint that it would take two cycles of General Convention -- until 2015 -- for the Covenant to be finally approved.) The Constitution (Art. XII) requires that all amendments be proposed by one General Convention, and then be
sent to the Secretary of the Convention of every Diocese, to be made known to the Diocesan Convention at its next meeting, and be adopted by the General Convention at its next succeeding regular meeting by a majority of all Bishops, excluding retired Bishops not present, of the whole number of Bishops entitled to vote in the House of Bishops, and by an affirmative vote by orders in the House of Deputies in accordance with Article I, Section 5, except that concurrence by the orders shall require the affirmative vote in each order by a majority of the Dioceses entitled to representation in the House of Deputies.Please note in passing that the drafters of revisions to the Constitution and Canons knew perfectly well how to use language so as to exclude retired bishops not present from being counted in specifying that a measure be enacted by "a majority . . . of the whole number of Bishops entitled to vote in the House of Bishops . . .". The language of Canon IV.9 (see the last sentence) has no such wording about "excluding retired Bishops not present". Thus the Constitution itself demonstrates how the Presiding Bishop is trampling on the language of the Canon when she declares a "deposition" to have carried with the vote of less than a majority "of the whole number of Bishops entitled to vote," as the Canon expressly requires.
This, then will be the Catch-22 into which the Presiding Bishop will lead the Church and the Anglican Communion, if her ego leads her to try to "depose" Bishop Lawrence for "abandonment":
1. A godly Bishop who would lead his Diocese in giving its approval to the Covenant, as is necessary for its adoption by ECUSA, will have been declared "deposed" by a canonically insufficient vote in the House of Bishops.
2. A Diocese which declares itself unalterably opposed to the acts taken by ECUSA in defiance of the Windsor Report will be forced to withdraw from the Church by the "deposition" of its Bishop, which the majority of provinces in the Anglican Communion will refuse to recognize. Meanwhile any Diocese which indicates it wants to approve the Covenant before General Convention 2012 can act on it will be threatened with the "deposition" of its diocesan.
3. A Potemkin standing committee organized by the Presiding Bishop will announce the holding of a "special convention" to approve a "provisional bishop" for what it declares will be the "Episcopal Diocese of South Carolina."
4. As soon as he or she is declared elected, the "provisional bishop" will file suit against Bishop Lawrence and his Diocese, seeking all of its money and property. But given the recent decision by the South Carolina Supreme Court against indirect Church trusts (plus the fact that the Dennis Canon does not try to reach the property of a diocese), the suit will go nowhere in the South Carolina courts. (That will not stop ECUSA from devoting hundreds of thousands of dollars to it.)
5. Like his former colleague Archbishop Robert Duncan, Bishop Lawrence will be recognized by other Bishops of the Anglican Communion as a Bishop in good standing with the rest of the Communion. Those Bishops may even drive the point home, as the Bishop of Winchester, the Rt. Rev. Michael Scott-Joynt, has done by inviting Archbishop Duncan to preach and to confirm in his Diocese.
6. Why will that drive the point home? Because Archbishop Duncan will be able to do so by reason of permission having been granted to the Bishop of Winchester by the Archbishop of Canterbury to make the invitation. And with that permission, Archbishop Duncan (and Bishop Lawrence, if he is invited as well) will be able to do what the Most Reverend Katharine Jefferts Schori cannot do, even though ECUSA regards her as a bishop (and its primate). No woman may currently function as a bishop within the Church of England -- no, not even the Most Rev. Katharine Jefferts Schori.
We will then have the spectacle of how ECUSA, by plunging recklessly ahead with its "social justice" agenda without the consensus of the remainder of the Anglican Communion, and by deposing its orthodox bishops and clergy without justification or mercy, will have managed to cut itself off from the Communion by those very actions. Its ridiculous and uncanonical "depositions" will be shown up as the Stalinesque purges that they are. And its childish demand that all of its elected and confirmed bishops receive equal recognition throughout the Communion will be shown up as the dysfunctional and selfish swaggering which it is.
At that point, as I say, further actions by ECUSA in going through the motions of considering the Covenant, if they occur at all, will devolve into a surreal pantomime. In any event, the disunity of ECUSA will be evident for all to see. The House of Bishops will be too spineless to pull the Presiding Bishop back from the looming disaster, and too divided to be able to agree on a common plan forward in her stead. There will be no neutral or middle ground; it will be like being in the middle of the Reign of Terror during the French Revolution. As far as the Presiding Bishop will be concerned, one will be "either with her, or against her."
This is where the current "leadership" of ECUSA is headed -- they have become a runaway wagon. Events may not unfold precisely according to the above scenario, but unfold they will. And there is no outcome I can see which bodes well for the future of ECUSA, or perhaps even for the Communion as we have known it -- so long as the Church gives Katharine Jefferts Schori free rein in taking it over the cliff.