Sunday, January 31, 2010

Pittsburgh Church Assets Thrown into Chaos

The Court of Common Pleas of Allegheny County, the Hon. Joseph M. James presiding, has now taken its next step into the devolving morass that litigation has made of the situation regarding church property in the Diocese of Pittsburgh. On October 6, 2009, the Court entered an order finding that four years earlier, in order to settle the claims being made by Calvary Church and others that the Diocese was making preparations to allow its parishes to leave ECUSA, the parties to the litigation had stipulated, in effect, that all property held or controlled by the Diocese of Pittsburgh would remain held and controlled by that entity. The Court further found that the Diocese had violated that stipulation when its Convention voted in October 2008 to realign with the Anglican Province of the Southern Cone -- even though the underlying legal entity had not changed. The Court read the stipulation to mean that the Diocese in question had stipulated and agreed -- through its attorneys of record, mind you, and not through any vote or act of the Diocese itself -- that it would always remain aligned with the Episcopal Church (USA) if it wanted to be in control of its own property.

In order to assert that the stipulation had been violated by the re-alignment (even though it had agreed beforehand not to argue that the re-alignment was illegal under Church law), Calvary Church and the other plaintiffs in the original action had to organize a brand-new "diocese", which they confusingly claimed was the same legal entity as the old Diocese. To keep the entities straight for the purposes of what follows, let us call the Diocese that existed as of the date of the Convention in October 2008 "Diocese 1", and the group that formed around the Rev. Dr. Jim Simons and Calvary Church after October 2008, with the collaboration of ECUSA's Presiding Bishop, "Diocese 2".

Both before and after October 2008, Diocese 1 still had the same officers, books and assets; the same physical offices in Pittsburgh; and the same legal form -- an unincorporated association organized under Pennsylvania law. Diocese 2, meanwhile, did not begin to come together until after October 4, 2008, when the minority who disagreed with the vote to re-align walked out of the Convention at which the vote passed by an overwhelming majority. It, too, formed as an unincorporated association -- with a much smaller number of members. But it claimed in law to be the legal continuation of, and successor to, Diocese 1.

Where did that leave Diocese 1? In the view of Diocese 2, Diocese 1 was from the moment of the vote no longer Diocese 1, but some new group of strangers who no longer belonged to the Episcopal Church (USA), and so who could no longer legally constitute Diocese 1. Thus, in the view of the members of Diocese 2, all the majority had left Diocese 1 to form a new diocese -- which we shall have to call "Diocese 3" if we are to keep things understandable from Diocese 2's point of view. Because as far as Diocese 2 was concerned -- even though it had to elect new officers, find a new location for its office, and open new bank accounts -- it had now become, for all intents and purposes, "Diocese 1".

The only problem was that all of the old property of Diocese 1 still remained, after the vote, in the hands of Diocese 1 -- or now (if you were a member of Diocese 2) had magically transferred in some illegal way to the hands of Diocese 3. And so the Court's assistance was needed to get those assets back into the hands of Diocese 2. Because, don't you see, Diocese 1 (or its attorneys, at any rate) had signed a legal stipulation that its property would always be held and managed by Diocese 1. And since, in the view of Diocese 2, it was now really the same old, same old Diocese 1 (even though it had completely different officers, offices and bank accounts), it just needed the Court to enter an order to that effect.

And that is just what Judge James obligingly did on October 6, 2009. (I criticized that ruling in this earlier post, and showed how it defied all legal logic to reach its forced conclusion.) He ordered that an inventory of the assets of Diocese 1 be drawn up, so that Diocese 2 could be placed in charge of them. Now the Special Master appointed by the Court has filed his report identifying those assets (in the hands of "Diocese 3", as the Court and Diocese 2 view things), and the Court has ordered that what it regards as "Diocese 3" cooperate in turning over control of those assets to Diocese 2 (pretending, of course -- but not actually deciding -- that Diocese 2 is really Diocese 1 for purposes of the 2005 stipulation).

Is all that perfectly clear? Good -- because I do not want to have to run through it again. And if you find yourself still confused, I am afraid you will have to blame Diocese 2 and Judge James, whose illogical arguments have carried the day, for the time being. What I want to point out in this post is the probable chaos that will now ensue, and which will most likely result in an undoable Gordian knot by the time any appellate court can get to the bottom of the mess.

Let us begin by singling out just the cash accounts, which totaled nearly $600,000 as of September 30, 2009 -- some four months ago. These were all at PNC Bank, except for a savings account (at "Dwelling House S&L") and for the petty cash ($400) kept in the safe in the offices of Diocese 1. We shall trace through them what has happened in the past, and what Judge James' order (which takes effect immediately) can now allow to happen. (They are listed on page 1 of Exhibit A to the report of the Special Master. This Exhibit is entitled "Inventory of Cash, Cash Equivalents . . . as of September 30, 2009".) The folly of the order just signed by Judge James will become immediately apparent, and it calls into question whether either he or the attorneys for Diocese 2 really understand what they are doing.

Let's take the savings account, for a start. This account, at the savings and loan above mentioned, held $61,199 as of September 30. Now as far as I am aware, this account had not been previously frozen by the S&L; the only accounts frozen at the prior request of ECUSA were those held by Morgan Stanley (which also invests a significant amount of ECUSA's own funds), as I explained in this post.

As everyone who has ever had a savings account knows, such accounts pay interest. And interest has to be reported to the Internal Revenue Service, so banks require a Social Security number for individual accounts, and a Federal Employer Identification Number, or FEIN, for corporate and institutional accounts. On September 30, 2009, this particular account was held in the name of the "Board of Trustees for the Protestant Episcopal Diocese of Pittsburgh", according to the Special Master. And just who are they?

Remember that Diocese 1 was (and is) an unincorporated association under Pennsylvania law. As such, the association is not allowed to take title to assets in its own name, or to sue in its own name. The reason is that an unincorporated association is not a single person or entity in the eyes of the law. It is just a collection of the individuals or individual entities (in this case, parishes and their clergy) which make up its members -- no one of whom has the right to act in the name of the whole group.

So now we come to the first major problem with the 2005 Stipulation, and the subsequent proceedings under it which Calvary Church started in 2006, and which culminated in Judge James's most recent order. Paragraph 1 of the Stipulation, which Judge James found that Diocese 1 violated by its vote to realign in October 2008, provided as follows:
1. Property, whether real or personal . . . held by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter "Diocese") for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held and administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. . . .
Do you see the conceptual problem here? The parties stipulated regarding property supposedly "held" by the Episcopal Diocese of Pittsburgh, but under Pennsylvania law that entity, which is an unincorporated association, cannot legally hold title to any property. And in fact, as the Special Master's Report now discloses in painstaking detail, virtually all of the bank accounts, and all of the real property, were held in the name of the "Board of Trustees for the Episcopal Diocese of Pittsburgh". (The exception are some minor discretionary accounts for individual officers of the diocese -- which even the Special Master agrees "are arguably not diocesan assets.") That Board of Trustees is a separate religious corporation under Pennsylvania law, and as a corporation it has the legal ability to hold title to real and personal property.

Thus the FEIN associated with the non-frozen bank accounts must be that for the Board of Trustees corporation that is associated with Diocese #1. (Its individual trustees were named as defendants in Calvary's original lawsuit, but the corporation itself was not named as a defendant. And the persons who were named as trustees of the corporation when the lawsuit started in 2003 are not any longer all trustees of the corporation.)

So the second major problem with Judge James's order is this: we have an entity which is not a party to the lawsuit being ordered to surrender control of its account at a bank which is also not a party to the lawsuit, and we have the Court telling a Bank which again is not subject to the jurisdiction of the court that it can accept instructions with regard to the account only from a stranger whose name is not on the account, and whose FEIN number is different from the one on the account.

Even if Judge James, ECUSA and Diocese #2 cannot tell the difference between Diocese #1 and Diocese #2, the Internal Revenue Service and the State of Pennsylvania have no such difficulty. Both have issued to the corporation which is associated with Diocese #1 a unique identification number which lets them tell it apart from all the other corporations in that State. And whatever may be the makeup and name of any corporation that has been formed in connection with Diocese #2, I can guarantee you that it has identification numbers which are different from those for the corporation associated with Diocese #1.

If Judge James's order is to take effect as literally written, then beginning on January 29, 2010 the Dwelling House Savings & Loan has to violate federal and Commonwealth law, by crediting interest to an entity which is not on the account, and whose FEIN is different from the entity that is on the account. Moreover, the S&L has to take the risk of accepting instructions from some person identified in writing by a "Bishop" whom the S&L has never heard of, and hope that it will not be held liable later on for following the directions of a court which had, and still has, no legal jurisdiction to give it any such order.

This is a recipe for financial chaos and madness. The same is true of the other $540,000 in accounts at PNC Bank, where so much more is at stake. Were I counsel advising those banks, I would tell them to inform the attorneys for Diocese #2 that unless and until the Court acquires proper jurisdiction over them, they are unable to comply with the Court's instructions, at risk of violating both state and federal law and their fiduciary duties to their actual client.

Such are the follies that ensue when churches try to play the shell game of pretending that entities recognized by the law can have their identities transmuted by episcopal fiat. Neither ECUSA, its General Convention, nor its Presiding Bishop has any earthly power whatsoever to dictate that a corporation which is affiliated with one unincorporated association one day shall thereafter be regarded as being affiliated with a different association on the next.

ECUSA, Calvary Church, Dr. Simons and their attorneys have made an unholy mess of things in Pittsburgh. It is a bed entirely of their own making, and now they shall have to lie in it. The sooner some appellate court in Pennsylvania puts a stop to this craziness, the better for all concerned.

Friday, January 29, 2010

Friday TED Talk: Barry Schwartz and the Problem of Choices

Barry Schwartz studies the interface between economics and the psychology of consumers, and teaches at Swarthmore. In this memorable talk from the TED Global 2005 conference, Dr. Schwartz speaks of a timeless problem that confronts us even more pressingly today: the problem of making choices, and the accompanying illusion of autonomy. He cites examples with regard to cell phone technology and health care which are just as relevant as if this talk had been delivered last week, instead of four and a half years ago:

Here is a link to Professor Schwartz's bio, and to his home page (showing the books he has authored). Here is the link to the high-res version of his talk, or you may download it in that and various other formats from this page.

Wednesday, January 27, 2010

In the Kingdom of the Blind . . .

Below are some excerpts from an interview of self-proclaimed atheist Christopher Hitchens published in the Portland Monthly. The interview is conducted by Marilyn Sewell, a retired minister of the Unitarian Church. The website reports that
. . . Portland Monthly invited Hitchens to an encounter more befitting the Rose City: a conversation with a liberal believer—Marilyn Sewell, the recently retired minister of the First Unitarian Church of Portland. A former teacher and psychotherapist and the author of numerous books, Sewell, over 17 years, grew Portland’s downtown Unitarian congregation into one of the largest in the United States.
The interview excerpts speak for themselves. Taken together, they give the impression of the old adage I have referenced in the title of this post. I have modified the format of the original, and put Hitchens' responses into bold type; the Rev. Sewell's questions are in italics. Note just who is more informed as to the fundamental tenets of the Christian religion (and note who is not informed about when Socrates and Epicurus lived, both in relation to each other and to Lucretius).

[Begin excerpts of interview.]

The religion you cite in your book is generally the fundamentalist faith of various kinds. I’m a liberal Christian, and I don’t take the stories from the scripture literally. I don’t believe in the doctrine of atonement (that Jesus died for our sins, for example). Do you make and distinction between fundamentalist faith and liberal religion?

I would say that if you don’t believe that Jesus of Nazareth was the Christ and Messiah, and that he rose again from the dead and by his sacrifice our sins are forgiven, you’re really not in any meaningful sense a Christian.
. . .
. . . Christianity, remember, is really founded by St. Paul, not by Jesus. Paul says, very clearly, that if it is not true that Jesus Christ rose from the dead, then we the Christians are of all people the most unhappy. If none of that’s true, and you seem to say it isn’t, I have no quarrel with you. You’re not going to come to my door trying convince me either. Nor are you trying to get a tax break from the government. Nor are you trying to have it taught to my children in school. If all Christians were like you I wouldn’t have to write the book.

Well, probably not, because I agree with almost everything that you say. But I still consider myself a Christian and a person of faith.

Do you mind if I ask you a question? Faith in what? Faith in the resurrection?

The way I believe in the resurrection is I believe that one can go from a death in this life, in the sense of being dead to the world and dead to other people, and can be resurrected to new life. When I preach about Easter and the resurrection, it’s in a metaphorical sense.

I hate to say it—we’ve hardly been introduced—but maybe you are simply living on the inheritance of a monstrous fraud that was preached to millions of people as the literal truth—as you put it, “the ground of being.”

Times change and, you know, people’s beliefs change. I don’t believe that you have to be fundamentalist and literalist to be a Christian. You do: You’re something of a fundamentalist, actually.

Well, I’m sorry, fundamentalist simply means those who think that the Bible is a serious book and should be taken seriously.

I take it very seriously. I have my grandmother’s Bible and I still read it, but I don’t take it as literal truth. I take it as metaphorical truth. The stories, the narrative, are what’s important.

But, then, show me what there is, ethically, in any religion that can’t be duplicated by Humanism. In other words, can you name me a single moral action performed or moral statement uttered by a person of faith that couldn’t be just as well pronounced or undertaken by a civilian?

You’re absolutely right. However religion does inspire some people. . .

. . . Let me ask you this: The Greek myths, their fables, their folk tales that endured are not literally true, but there’s great value in the universal truths that are taught just by the story itself. I see so much of scripture in a similar way including, for example, the creation story. Can you agree with me that some of those stories are valuable just as metaphor?

The creation story is ridiculous garbage. And has given us a completely false picture of our origin as a species and the origins of the cosmos. If you want a good mythical story it would be the life of Socrates. We have no proof, as with Jesus, that he ever existed. We only know from witnesses to his life that he did. Like Jesus, he never wrote anything down. It doesn’t matter to me whether he did or not exist because we have his teachings, his method of thinking, and his extreme intellectual and moral courage. Anyone who can look me in the eye and say they prefer the story of Moses or Jesus or Mohammed to the life of Socrates is — I have to say it to you — intellectually defective. The great tradition starts with Lucretius and Epicurus who work out that the world is made of atoms and is not created by any design. It goes through Socrates and through, well, Galileo, Spinoza—people whose work is burned and despised by Jews and Christians and Muslims alike—to through Voltaire to Darwin to, I’m abridging the story somewhat, but it’s the last chapter of my book. It’s a better tradition for people who think for themselves and who don’t pray in aid of any supernatural authority. That’s what you should be spending your life is in spreading and deepening that tradition.

If you would like for me to talk a little bit about what I believe . . .

Well I would actually.

I don’t know whether or not God exists in the first place, let me just say that. I certainly don’t think that God is an old man in the sky, I don’t believe that God intervenes to give me goodies if I ask for them.

You don’t believe he’s an interventionist of any kind?

I’m kind of an agnostic on that one. God is a mystery to me. I choose to believe because—and this is a very practical thing for me—I seem to live with more integrity when I find myself accountable to something larger than myself. That thing larger than myself, I call God, but it’s a metaphor. That God is an emptiness out of which everything comes. Perhaps I would say “ reality” or “what is” because we’re trying to describe the infinite with language of the finite. My faith is that I put all that I am and all that I have on the line for that which I do not know.

Fine. But I think that’s a slight waste of what could honestly be in your case a very valuable time. I don’t want you to go away with the impression that I’m just a vulgar materialist. I do know that humans are also so made even though we are an evolved species whose closest cousins are chimpanzees. I know it’s not enough for us to to eat and so forth. We know how to think. We know how to laugh. We know we’re going to die, which gives us a lot to think about, and we have a need for, what I would call, “the transcendent” or “the numinous” or even “the ecstatic” that comes out in love and music, poetry, and landscape. I wouldn’t trust anyone who didn’t respond to things of that sort. But I think the cultural task is to separate those impulses and those needs and desires from the supernatural and, above all, from the superstitious.

Could you talk about these two words that you just used, “transcendent” and “numinous”? Those two words are favorites of mine.

Well, this would probably be very embarrassing, if you knew me. I can’t compose or play music; I’m not that fortunate. But I can write and I can talk and sometimes when I’m doing either of these things I realize that I’ve written a sentence or uttered a thought that I didn’t absolutely know I had in me… until I saw it on the page or heard myself say it. It was a sense that it wasn’t all done by hand.

. . .

You know, I think that that might be a religious impulse that you’re talking about there.

Well, it’s absolutely not. It’s a human one. It’s part of the melancholy that we have in which we know that happiness is fleeting, and we know that life is brief, but we know that, nonetheless, life can be savored and that happiness, even of the ecstatic kind, is available to us. But we know that our life is essentially tragic as well. I’m absolutely not for handing over that very important department of our psyche to those who say, “Well, ah. Why didn’t you say so before? God has a plan for you in mind.” I have no time to waste on this planet being told what to do by those who think that God has given them instructions.

. . .

You write, “Literature, not scripture, sustains the mind and the soul.” You use the word “soul” there as metaphor. What is a soul for you?

It’s what you might call “the x-factor”—I don’t have a satisfactory term for it—it’s what I mean by the element of us that isn’t entirely materialistic: the numinous, the transcendent, the innocence of children (even though we know from Freud that childhood isn’t as innocent as all that), the existence of love (which is, likewise, unquantifiable but that anyone would be a fool who said it wasn’t a powerful force), and so forth. I don’t think the soul is immortal, or at least not immortal in individuals, but it may be immortal as an aspect of the human personality because when I talk about what literature nourishes, it would be silly of me or reductionist to say that it nourishes the brain.

I wouldn’t argue with you about the immortality of the soul. Were I back in a church again, I would love to have you in my church because you’re so eloquent and I believe that some of your impulses—and, excuse me for saying so—are religious in the way I am religious. You may call it something else, but we agree in a lot of our thinking.

I’m touched that you say, as some people have also said to me, that I’ve missed my vocation. But I actually don’t think that I have. I would not be able to be this way if I was wearing robes or claiming authority that was other than human. That’s a distinction that matters to me very much.

You have your role and it’s a valuable one, so thank you for what you give to us. . . .

[End of excerpts. Read the full interview, or listen to it, at this link.]

And that is how religion and theology are discussed in the kingdom of the blind these days. Truly a remarkable document of our times.

(H/T: Stand to Reason)

Tuesday, January 26, 2010

Now He Thinks It's a Good Idea to Freeze Spending

Better late than never, I suppose. Word is that President Obama plans to call for a three-year freeze on discretionary spending in his State of the Union Address tomorrow night. (Never mind that he campaigned against the idea of a freeze -- but the House Democrats are saying they will hold him to it, and will refuse to play along.)

And no wonder the House Democrats under Nancy Pelosi are saying "No" -- it might prevent them, after all, from taking lavish trips to frozen foreign capitals to investigate the global warming phenomenon, and racking up luxury hotel bills of over $2,200 per night -- per person.

Moreover, as you can see from this chart, the government is in the business of handing out money, not holding it back:

(From Moonbattery, where there is this great quote from Ronald Reagan which sums up Washington's reigning philosophy: "If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.")

And don't forget to bookmark the U.S. Debt Clock for real-time figures on what we are passing on to our kids and grandkids.

Two cartoons are worth thousands of words (click to enlarge):

(H/T: NewsReal)

Sunday, January 24, 2010

TECism - ECUSA's Heresy

ECUSA uses as its expert in its church property litigation Dr. Robert Bruce Mullin, who teaches the history of American religion and other subjects at General Theological Seminary in New York. He has filed two declarations in support of ECUSA's and Bishop Gulick's motion for partial summary judgment in the Fort Worth litigation, of which the first gives his version of ECUSA's history (the second deals with the history of the Diocese of Fort Worth). Much of the response (download link here) recently filed by ECUSA/Bishop Gulick in the Fort Worth Court of Appeals (in the mandamus proceedings to review District Judge Chupp's refusal to strike the pleadings filed in the name of the "Diocese of Fort Worth" and its Corporation by attorneys hired by Bishop Gulick) depends on Professor Mullin's first declaration. Before discussing the response itself, therefore, I would like to take a closer look at what Dr. Mullin is saying, and its implications for ECUSA's ongoing litigation over church properties.

Professor Mullin engages repeatedly in a rhetorical fallacy which I have mentioned in these pages before. The original Greek name for it is synecdoche: it means "mistaking the part for the whole" (or vice versa). In the context of ECUSA, it has become such a feature of the Episcoleft's worldview that it may be said to amount to a full-blown heresy, or false belief. It is particularly well set off by today's second lesson, from Paul's first letter to the Corinthians (ch. 12):
12:12 For just as the body is one and yet has many members, and all the members of the body – though many – are one body, so too is Christ. 12:13 For in one Spirit we were all baptized into one body. Whether Jews or Greeks or slaves or free, we were all made to drink of the one Spirit. 12:14 For in fact the body is not a single member, but many. 12:15 If the foot says, “Since I am not a hand, I am not part of the body,” it does not lose its membership in the body because of that. 12:16 And if the ear says, “Since I am not an eye, I am not part of the body,” it does not lose its membership in the body because of that.12:17 If the whole body were an eye, what part would do the hearing? If the whole were an ear, what part would exercise the sense of smell? 12:18 But as a matter of fact, God has placed each of the members in the body just as he decided. 12:19 If they were all the same member, where would the body be? 12:20 So now there are many members, but one body.

Paul makes the point that many individual members make up the one body of Christ, just as different members make up the body. In exactly the same way, there are currently 106 dioceses (plus four candidate dioceses) which make up the Episcopal Church (USA). Being well-trained in the school of Greek rhetoric, Paul has no trouble distinguishing the parts from the whole: "If the whole body were an eye, what part would do the hearing? If the whole were an ear, what part would exercise the sense of smell?" There can be no synecdoche for Paul; he is far too skilled to fall into that trap.

Now fast-forward some two thousand years. The powers that be at 815 Second Avenue have taken synechdoche, as I say, to the level of a full-blown heresy. Indeed, I propose to dub it the "TEC" heresy (in which TEC could be said to stand for "Total Episcopal Claptrap"). Uniquely, however -- apart from all the previous "isms" of church heresy -- TECism can be clearly expressed in a single, simple mathematical inequality: it teaches that

106 + 4 < "TEC"

Or, said in an equivalent way, "TEC" > 106 +4.

At this point most mathematicians would object, and say that since 106 + 4 = 110, therefore "TEC" must stand for a number that is greater than 110. TECism, however, goes beyond mere mathematics: we are talking of a full-blown, separate religion, by which the abstraction which is "TEC" is considered as a deity of its own, exercising powers and capabilities beyond that of any single diocese, or group of dioceses -- which in the end, after all, must act through mere mortals. Not so with "TEC". Thus it would be even more mathematically accurate to write the equation as: TEC >> 106 + 4 (meaning "TEC is very much greater than 106 + 4").

And just why does this constitute a heresy? Begin with the fact that it is a claim about a religious body that is made up of its individual members. Recall what Paul says, a little further on in the chapter quoted earlier: "Instead, God has blended together the body, giving greater honor to the lesser member, so that there may be no division in the body, but the members may have mutual concern for one another. If one member suffers, everyone suffers with it. If a member is honored, all rejoice with it." (1 Cor. 12:24b-26.) Thus the body is completely dependent on each of its members -- the lesser along with the greater. It is not true to say that the body is "greater than" the sum of its parts, because the body can be nothing other than the sum of its parts. Without any one of its parts, the body cannot function as it should, and is thereby diminished.

Not so with TECism. Just read the following passage from Professor Mullin's declaration linked earlier (this is a summary paragraph [no. 145] at the end):
The General Convention - with its House of Bishops and House of Clerical and Lay Deputies - represents the highest authority within the Church. It determines the Book of Common Prayer and who shall be bishops in the Church. Its legislation instructs on education, clerical responsibilities, rules for ordination, discipline, and many other vital matters. Over the history of the Church, it has been the final authority. The relationship of the General Convention to the Constitution of the Church is fundamentally different from the relationship of the Federal Government to the U.S. Constitution. The General Convention was the author of the Constitution and alone has the power to amend it.
According to Professor Mullin, there is this abstraction, which he calls "General Convention", which does everything in the Church, from drafting the Church's own Constitution, to selecting bishops and instructing on education, clerical responsibilities and rules for ordination. But just what is this "General Convention? It is made up of the delegations and bishops from individual member dioceses. It is no "supreme executive", having a continuous existence and single mind that remains coherent and uniform over time, like an individual person. Instead, General Convention completely reconstitutes itself every three years -- for a period of just ten days at most. The General Convention of the moment is not bound by any prior Convention, and cannot itself bind any future Convention.

Because General Convention can act only through its deputies and bishops, it is, correctly speaking, simply a collection of individuals. It "acts" or "decides" by taking votes. Usually they are simple voice votes, but on more important matters they are roll call votes by each order in each diocese. (Only the House of Bishops acts at all times by majority vote of its members, who constitute a single order in the Church.) Nevertheless, even when voting by orders, the overall concept of General Convention is that a concurrence by the majority of the member dioceses is necessary for any action or decision to be taken.

Professor Mullin's analysis, by way of contrast, replaces the members of an unincorporated group with an abstract, impersonal entity that is supposedly superior to the group itself, and that supposedly exercises supreme powers over that group. But as we have just seen, this "entity" is nothing other than what you and I would call a "majority."

Think about it for a moment: unincorporated groups can only act through majorities of their members. If Bill and Jane and Mary and Tom and Bob and Cathy and Jim all come together in a group, how can they decide on what their rules are? The first thing they have to do is enter into a contract with each other whereby they each agree to abide by certain rules. This contract is called either a "Constitution" or "Articles of Association". The document spells out what things may be decided by majority vote, and what things have to be decided by a supermajority (or perhaps even a unanimous) vote. At a minimum, it will spell out what kind of notice is required for members to vote on changes, and how many members will constitute a quorum to vote on proposed changes.

It may also, as an option, provide for officers of the group, and delegate to them certain powers and duties in the name of the group. (Note that ECUSA's Constitution does not provide for any "officers" of the Church other than the Presiding Bishop -- to whom it assigns no specific duties, responsibilities or functions. By implication from the title, what the Presiding Bishop does is to preside -- over General Convention, when both Houses are meeting in joint session, and over the House of Bishops when it is not. The Canons add a few specific functions, such as being the Church's "Chief Pastor and Primate" -- but with no primatial authority over other bishops or clergy.)

Assuming that the group designates no representative officers to speak or act on its behalf, the only way the group can do or decide anything is by taking a vote of its members. Each member then represents him- or herself, and if enough of them agree in accordance with the Articles, then the group is said to "decide" to do x. But that is just rhetorical shorthand for saying that "a majority of the members voted to do x." The dissenters, if any, are free not to join in whatever x is -- for example, if the group votes to endorse a specific position, the dissenters are free to publicize that they do not go along with the majority. And if the disagreement is strong enough, the dissenters are free to disaffiliate from the group: just as the law protects a person's freedom of association, so it also protects that person's freedom to dissociate (because the one is the obverse of the other). There is no voluntary association that has any constitutional means of preventing a member from leaving.

It is only the TECism heresy that makes "TEC" into some monolithic organization whose members are forever bound to it, as the States are to the Union (at least, after the Civil War). But the Union, unlike ECUSA, is not a voluntary association. It is a creature of sovereign governments who have indissolubly joined together and fused their sovereignty into a single sovereignty at the national level, while retaining (as to their citizens) their own sovereignty at the State level. No diocese alone is a sovereign government, and no combination of them together can create a sovereignty of its own. This is particularly true of a religious organization, where only God Himself is sovereign.

Professor Mullin thus rewrites ECUSA's history, to make it appear as though throughout there was this single sovereign entity, "General Convention", ruling supreme over the whole Church and making consistent decisions throughout its history. There is no recognition of how the various Conventions over the years differed from one another, and took differing positions -- some of which were at odds with the Constitution and Canons adopted by previous Conventions.

Even now, we have General Convention 2009 presuming to wink at the institution of blessings of a same-sex civil marriage (in those States that recognize such unions) as a kind of "generous pastoral response" to those couples, which is nevertheless completely contrary to the rubrics of the Book of Common Prayer regarding the blessings of a civil marriage. Needless to say, no single General Convention alone has any power to alter the Book of Common Prayer -- which is a point that again undercuts the heresy of TECism. For the General Convention which meets three years later and ratifies a change to the BCP is not the same General Convention as the one that first authorized the change to be sent out to the respective dioceses for their consideration. Different people make them up, and even a deputy who represents the same diocese at successive Conventions can change his or her mind, and vote one way the first time, and the opposite way the second time.

The most that can be said of ECUSA's 220-year-old history is that various majorities of various General Conventions assembled over the years have approved various provisions in the Constitution and Canons, which are always subject to change by future Conventions, acting again through particular majorities in accordance with the rules for voting.

Once Professor Mullin's declaration is analyzed in this light, and each bald assertion is carefully recast to reflect what was actually going on at the time, the whole edifice he has so blithely erected crumbles into smithereens. Indeed, the very fact that such a heresy could be put forth in a court of law by a single individual who claims to represent the "whole Episcopal Church" -- without any proper procedures or preliminary deliberations by the membership to appoint him as their legal representative -- is itself a demonstration of the falsity of TECism, as I have observed before. Imagine the Pope allowing some minor bishop to come into court without any authority from him whatsoever, and to presume to speak on behalf of the entire Roman Catholic Church. It could never happen, and that is why the Roman Catholic Church is truly hierarchical, while ECUSA is not.

Saturday, January 23, 2010

Saturday Night Jive

From rx2008's YouTube channel (where there is more), this video makes its point simply and well:

If you care to, you can read some of the links here to find out more about what the video is referring to, but the best way to read it all in one place is to buy this book. (Don't confuse the book just linked with this one, to which it is the antidote. The latter was written before the election; the first one linked was written after -- after the "stimulus" bill, the takeover of GM, the bailouts of Wall Street, and all the other taxes we have had to suffer in the President's first year of office.)

H/T: Moonbattery (where there is also more -- for catlovers).

Friday, January 22, 2010

Friday TED Talk: Anthony Atala on the Body's Ability to Regenerate

Anthony Atala, M.D. must have one of the most fascinating jobs in the world: he heads up the Wake Forest Institute for Regenerative Medicine, where teams of medical researchers have been at work for more than twenty years developing the skills and techniques needed to enable human tissue regeneration. In the amazing video below, he shows slides and brief clips of the Institute's ongoing work: everything from regenerating a short section of blood vessel or urethra, to complete regrowth of human organs, including a heart valve, a bladder and a liver! (Much of the work is still in experimental stage, but at the very end of his talk, Dr. Atala shows a short clip of a patient with spina bifida who has actually benefited from the Institute's work, and is a living example of their success.) Watch and marvel at the built-in capabilities of the human body, and the ingenious technology adapted to exploit those capabilities (including a dot-matrix printer that has been modified so it can "print" human skin!):

Dr. Atala's biography is here; this is the home page of the Wake Forest Institute, which shows much more about its work, including a segment from a recent broadcast of 60 Minutes. You should watch this talk in its high-res version to get its full impact; and you may download it in that and other versions from this page. Oh, yes -- and one more thing: Dr. Atala speaks with a gentle Harvard ("Hah-vahd") accent, cultivated over his many years spent there. A graduate of that institution myself, I still had to replay his words several times before I could translate what sounded like "we basically found that you can use these smart-bomb materials . . ." (about four minutes into the talk, when he is showing a slide). What he is actually saying is: "We basically found that you can use these smart biomaterials . . ." People from Boston will feel right at home with this talk; the rest of you might need to listen a little more carefully ("cahfully") than usual.

Wednesday, January 20, 2010

ECUSA, Diocese of LA Starting to Watch Legal Expenses?

I had previously calendared January 19 as the date on which ECUSA and the Diocese of Los Angeles were due to file a response to the petition for certiorari filed last December 15 in the United States Supreme Court by St. Luke's of the Mountains. However, when I went to the Supreme Court's docket for the case recently, look what I found:

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 15 2009

Petition for a writ of certiorari filed.
(Response due January 19, 2010)

Jan 5 2010
Waiver of right of respondent Episcopal Church to respond filed.

Jan 8 2010

Waiver of right of respondents Protestant Episcopal Church
in the Diocese of Los Angeles, et al. to respond filed.

So either ECUSA and the Diocese are so confident that the Court will decline to hear St. Luke's petition that they decided not to file any response, or else they are starting to watch all the money they have been shelling out for legal fees, and are having to prioritize where it gets spent. Either way, this marks a retreat from the "take-no-prisoners" strategy they have been following up to this point, and could reflect the recent budget cuts, as I discussed in this post.

The Supreme Court will assign St. Luke's petition to a conference in the coming weeks (probably the one on February 19), and then we will hear some coming Monday whether they have granted or declined review. (If the Conference Date is February 19, the decision will be announced at the Court's morning session on Tuesday, February 23, because of the holiday on February 22.) It will take the vote of at least four out of the nine justices on the Court for review to be granted, and for the case to be set for full briefing and oral argument. Grants of review are statistically very rare; only one in every 25 cases or so on the "paid docket" (the ones in which all the required fees are paid, as opposed to the 5,000+ petitions filed each year in forma pauperis) make it to consideration by the full Court.

We have about a month to wait before seeing whether ECUSA's strategy saved it any money. Stay tuned.

[UPDATE 01/21/2010: I have received a copy of the response, filed by ECUSA and the group previously organized under Bishop Gulick in Fort Worth, in the pending mandamus proceedings before the Second District Court of Appeal, which has agreed to review Judge Chupp's order denying Bishop Iker's Rule 12 motion (and also refusing to reconsider that ruling). It has not yet been posted on the website of the Episcopal group, although the Diocese of Fort Worth itself has put up a brief statement about it.

I will be putting up a longer post shortly that deals with the misstatements of fact and the arguments in the response. What I noted in the response which was of special interest to my topic above was this statement on page 44, casually made in connection with a reference to the September 18 decision by the Supreme Court of South Carolina, All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina (bold added for emphasis):

[The South Carolina Supreme Court's decision in All Saints Waccamaw] also runs counter to the many decisions that have held for The Episcopal Church in these kinds of cases [footnote omitted], and U.S. Supreme Court review is being sought.
If ECUSA or the Diocese of South Carolina is asking the Supreme Court to review that decision, then they (or one of them) must have sought and obtained an extension of time within which to file their petition for certiorari (review) with the Court. Normally, a party has up to ninety days from the date of the lower court's decision within which to file for review in the Supreme Court, but that time period may be extended for up to 60 days upon application to the justice in charge of the circuit where the court whose decision is the subject of the petition is located. (For South Carolina, that would be Chief Justice Roberts, who is assigned to the Fourth Circuit.) Since the South Carolina decision was handed down on September 18, the 90-day period expired on December 17; a further 60-day extension, if that was what has been granted, would run to February 15.

A search of the Supreme Court's docket this morning does not turn up any filing yet in the South Carolina case. In seeking review, ECUSA apparently contends that the decision in All Saints Waccamaw "runs counter to the many decisions that have held for the Episcopal Church in these kinds of cases" -- of which the decision in the St. Luke's case is one example. It would be ironic (and somewhat atypical) of the Supreme Court to grant review of the South Carolina decision after denying review of the contrary California decision -- but that is just what ECUSA is asking the Court to do.]

Tuesday, January 19, 2010

A Guide to the Health Care Debacle

Keith Hennessey has a B.A.S. degree in math and political science from Stanford, and a Master's degree in public policy from Harvard. He served for six years as the senior economic adviser to President George W. Bush. In addition to doing some TV commentary, he has started his own blog,

With all of his White House experience, Mr. Hennessey is able to provide the clearest analysis I have found thus far of what to expect from a win by Scott Brown in the Massachusetts special Senate race today. In a series of four clearly written posts, he walks the reader through a number of different scenarios.

The first three posts were written over three days ago, when it appeared that the Coakley-Brown race might be closer than it now almost certainly will prove to be. In the first post, he explains the likely effects of a Brown win from three different angles. Procedurally, he says, it will have the least impact: it will give the Republicans 41 votes in the Senate, which, he says, will be enough "to obstruct but not kill a bill." The Democrats will still have options to proceed with their health care proposal even without two votes from Massachusetts in the Senate -- and his other posts explain just why this is.

With the second angle he analyzes -- vote-counting by the Democrat House and Senate leaders -- a Brown win will have much more of an impact, because the degree to which House and Senate Democrats up for re-election could be scared off the bandwagon will have much to do with Brown's margin of victory. If he just squeaks by, the dislocating effect will be probably quite small, and Reid and Pelosi will probably be able to hang on to their majorities. But if Brown chalks up a big win, it will be a lot harder for Reid and Pelosi to keep their flocks from bolting the fold.

The third angle from which he looks at the effect of a win by Brown is (to me) the most fascinating: he calls it "the potential blowback to the procedural response." Here he assesses the impact of a Brown victory on the various procedural strategies available to the Democrats to push their legislation through Congress. Some of those strategies require much more time; some much less. If Brown wins heavily, watch for Pelosi and Reid to try to speed up the process as much as possible. (The result could also have an impact on President Obama's future Supreme Court appointments, as the SCOTUS blog hypothesizes here.)

We are already, as I write this before the polls close in Massachusetts, seeing evidence of such speeding up in response to the projected Coakley loss. The White House has now announced that the State of the Union address will be moved up to the 27th, much earlier than had previously been expected. The reason is so that President Obama and his teleprompter can bring maximum pressure to bear on the House Democrats to pass the Senate bill before Scott Brown can even be sworn in to the Senate. (Massachusetts law requires the Secretary of State to take at least ten days before certifying the result. And as I write, the Coakley camp has already announced plans to challenge the result on grounds of election "irregularities", in the manner of Al Franken. The result there, as you may recall, was to delay the announcement of the final result by months. Watch for them to try to delay things in this manner even if Brown wins by a huge margin. [UPDATE: Coakley has now conceded the race, so if there is going to be any attempt to delay Brown's functioning as a United States Senator, it will come from others in the Democratic Party, not Martha Coakley. Evidently there is not as uniform a strategy as appeared from the moment the first complaints were lodged -- or else, the election was not close enough to allow the mathematical possibility of a win via a "recount".]

The procedural options now open to Pelosi and Reid are where the traps and pitfalls lie, and where the strategy adopted is absolutely crucial. Keith Hennessey lays out four such options in his second post, and describes a much more unusual fifth option in a post put up just yesterday. This is where Mr. Hennessey shows his strengths. He lays out the procedural complexities of the various options with practiced ease, and after you study his posts carefully, you will be as well-informed as anyone in Congress about what could happen next. His original third post gives his initial predictions of how likely it is for a bill to pass under the different scenarios he analyzes. The numbers are no longer as relevant, since he revised them in his fourth post in light of the increasing prospects of a significant victory for Brown. But the post serves to walk you through a Bayesian probability analysis of likely outcomes, just as the professionals do it. Plug in your own estimations, do the math, make your own predictions, and see how much changing your guesses changes the predicted outcomes. It is great fun (for those with any inclination to such things).

Hennessey's bottom line is this: a substantial Brown victory now raises to 55% the likelihood that the coalitions behind a health care bill will crash (where before he had it at just 45%, when the race appeared to be closer). The Democrats' quickest way to get their health care -- the Senate-passed version -- would be for the House to jettison all of its individual objections to the Senate's bill, and adopt it without changing one comma. Then the bill would go straight to President Obama, and would be signed into law without ever having to go back to the Senate.

Such a scenario could take place before our eyes next week -- if Speaker Pelosi and President Obama can bring their muscle to bear on individual House members. (Hennessey gives this strategy a 30% shot. All of his other scenarios are much more complicated, take much more time, and hence have a much lower probability of success.) That is why the President has moved up his State of the Nation address, and that is why all eyes will be on Speaker Pelosi as soon as the preliminary results are announced. [UPDATE 01/21/2010: It looks as though Speaker Pelosi was told in no uncertain terms by her caucus that the Senate version of health care would never pass the House in its current form. And, she seems to signal that it will be quite a while before any form of health care reform gets through Congress as a whole. Thus Mr. Hennessey's call was right on the money.]

Isn't it fascinating that a race for a seat in the Senate has the net result of putting maximum pressure on the House? But that's politics for you, as Mr. Hennessey explains so well.

I am going to put a regular link to Mr. Hennessey's blog in the roll at the right. I think he will be well worth following in the coming months.

Monday, January 18, 2010

Anatomy of a Church Property Lawsuit (Tennessee) - Part II

In the first post in this series, I provided a link to the complaint filed by the Right Rev. John Bauerschmidt and his Diocese of Tennessee against the corporation of St. Andrew's Parish in Nashville, along with its rector and vestry members, who were named personally. (Since my earlier post, in which I noted that there seemed to be little warrant for including the rector and vestry in the lawsuit, their attorneys have brought a motion asking that they be dismissed. The motion and supporting memorandum, together with the Parish's answer to the complaint, may be downloaded from the Parish's home page.)

[UPDATE 01/19/2010: A reader in Nashville just sent me a link to this story, which reports that the lawsuit against the individual defendants has been dismissed. (The story speaks only of the "vestry members", but I assume it means the rector as well, since it concludes that the only parties left in the suit "are the diocese and the church itself.") See also this later story about the value of the property on which the church is situated.]

The complaint states a now standard claim by a Diocese against a re-aligning parish: that it was at all times "subject and subordinate to" the Constitution and Canons of both the Episcopal Church (USA) and the Diocese of Tennessee; that among those Canons to which it was subject were the Dennis Canon and its diocesan counterpart; that as a result, the Parish's property was subject to an unrecorded and contingent trust in favor of ECUSA and the Diocese; and that once the Parish voted to disaffiliate, it thereby forfeited its right to occupy the property it holds in its name.

These allegations, as I say, are boilerplate for Episcopal church property lawsuits. However, the facts in this particular case do not fit well into the standard mold. Let us take a closer look at how successful the complaint is in trying to make them fit. To do so, the complaint has to lay out two stories: (a) the history of the property now owned by St. Andrew's, and (b) the history of St. Andrew's Parish itself.

The property on which St. Andrew's now sits started out as a lot with a private residence on it. It was purchased for use by another parish in the Diocese, and consecrated as church property in 1958. That parish then moved out of the property to another location, and conveyed the lot and church building by warranty deed to the Diocese of Tennessee, which held it until it conveyed the property to the newly incorporated St. Andrew's in 1966. (Complaint, paragraphs 53-60.)

St. Andrew's had previously been admitted as an unincorporated parish into the Diocese of Tennessee in 1960, after having been a mission operated by the Diocese ever since 1889. The complaint attaches the original Articles of Association signed by members of the parish, and quotes the paragraph numbered (7) from that document:
All real estate now owned or hereafter acquired by this Parish, title to which is vested in any manner as aforesaid, shall be held, sold, transferred, alienated, conveyed, mortgaged or encumbered, in whole or in part, only in conformity with the Constitution, Canons, Doctrine, Discipline, and Worship of the Protestant Episcopal Church in the Diocese of Tennessee.
Although the complaint bases some of the Church's claim to the Parish property on this language, I submit that it does not furnish a valid basis for any such claim, as a matter of law. The reason? These are the articles of association, which were valid only as between the original congregation members signing it in 1960. Neither the Diocese nor ECUSA itself is a party to them, and they express only the terms of a contract between the signing members to hold, sell, transfer, etc. their property in accordance with the standards specified in the canons of the Diocese.

These articles of association were replaced as the operating governing document of the Parish when it incorporated in 1966. Thereafter, they ceased to have any legal effect. Thus it is to the articles of incorporation filed in 1966 that we must look for any language that could bind the legal corporation which currently holds the title to the parish property. Those articles, too, are attached as an exhibit to the complaint. Once again, the complaint provides a selective quote of only a tiny part of their contents: it alleges in paragraph 52 that the parish corporation "acknowledg[ed] and acced[ed] to the constitution, canons, doctrine, discipline, and worship of the Episcopal Church in the Diocese of Tennessee."

Then the complaint admits (as it must; I have added the italics):
62. From the time it moved to the Woodmont Property in 1964 until 2006, St. Andrew's participated in the life and ministry of the Diocese, abided by the Constitutions and Canons of the Diocese and The Episcopal Church, financially contributed to the Diocese and The Episcopal Church, and participated in the annual Diocesan Conventions.

63. However, unbeknownst to the Diocese at that time, on or about January 24, 1978, the predecessors of the Disaffiliating individuals amended St. Andrew's corporate Charter to delete the language acknowledging and acceding to the Constitution and Canons of the Diocese. . . .
These paragraphs are remarkable in several respects. First and most important, either they are mutually inconsistent, or else the Diocese has made a huge legal admission which may be used against it. Paragraph 63 alleges that the Parish corporation amended its articles to delete the language by which it acceded to and acknowledged the Canons of the Diocese -- in 1978, just twelve years after the corporation was formed (and one year before the national Church adopted the Dennis Canon). But then the preceding paragraph admits that during the entire period from 1964 until 2006, St. Andrew's "abided by the Constitutions and Canons of the Diocese and The Episcopal Church." Thus, the Diocese has admitted that the 1978 amendment to the Articles was not contrary to either the national or diocesan constitution or canons.

In fact, the complaint makes no attempt to allege that the 1978 amendment was illegal or void. Thus the legal effect of the amendment -- to remove the Parish from being subject to the diocesan (or national) governing documents -- goes unchallenged by the complaint, and as I say, this is a huge concession. Instead, the complaint plows entirely different ground upon which it bases its claim of an unwritten trust. It alleges in paragraph 64 (bold added for emphasis):
The amendment to St. Andrew's corporate charter, however, did not change the express trust created by the Constitutions and Canons of the Diocese and The Episcopal Church.
"Express trust"? The complaint filed by the Diocese of Tennessee appears to be saying that before the adoption of the Dennis Canon in 1979, there was an "express trust" imposed on all parish property by either the local or national governing documents. We know that there was no such "express trust" embodied in the national constitution or canons, because otherwise there would have been no need to rush through the passage of the Dennis Canon at GC 1979 and have it take immediate effect. So what express trust was formulated in the diocesan constitution or canons as they existed before January 1978 (the date the articles of incorporation were amended)?

The complaint alleges that Canon 10 (1) of the Diocese, as in effect in 1966 when the parish corporation received a warranty deed to the property, constituted that express trust (italics in the complaint):
34. The Diocesan Canons further provide that all property, real and personal, is held in trust for the Diocese and The Episcopal Church:
All property of every kind and character, whether held by the Convention, or by a Parish or Mission, ... and regardless of the manner in which title is vested, is held in trust to be used for the glory of God ... according to the Constitutions and Canons, and Doctrine, Discipline and Worship of the Protestant Episcopal Church in the United States of America and of this Diocese, and for the purposes and programs of said Church and Diocese.
Diocesan Canon 10(1). Like Canon 17, Canon 10 was a part of the canons of the Diocese of Tennessee when St. Andrew's applied for admission as a Parish . . .
It sounds good on paper, but there is a wrinkle in the plaintiffs' theory which the complaint does not disclose on the surface. Remember that the parish corporation acquired title to the property in 1966 by way of a warranty deed from the Diocese. The complaint attached the deed in question as an exhibit. After describing the property being conveyed, the deed then goes on in this language (italics added for emphasis):
TO HAVE AND TO HOLD the aforesaid real estate . . . unto the said [parish Corporation] its successors or assigns in fee simple forever; and the [Diocese] does hereby covenant with the said [parish Corporation] that it is lawfully seized in fee of the afore described real estate; that it has a good right to sell and convey the same; that the same is unencumbered; and that the title and quiet possession thereto it will warrant and forever defend against the lawful claims of all persons . . .
Thus there is quite an inconsistency here, which the Diocese will have to explain to any judge hearing the case. On the one hand, it contends that its canons in 1966 imposed a trust on all parish property in its favor, regardless of how title was vested. But on the other hand, the Diocese in 1966 warranted and covenanted to St. Andrew's that the property was unencumbered, and that it received the title in fee simple forever -- which are two ways of saying what comes to the same thing: that there was no trust imposed on the property. For if the Diocese had wanted to reserve an express trust in the property in its favor, on condition that the parish remain part of the Diocese, the place to do that was in the warranty deed. But it did nothing of the kind, and instead warranted that there was no trust or any other interest encumbering the property at the time of the conveyance.

But we are not yet done with the difficulties for the Diocese in proving its claim. For the answer filed by the Parish adds some further inconvenient facts which the complaint chose not to mention:
The fact that the Warranty Deed did not contain any trust-based obligations from St. Andrew's whatsoever in favor of The Diocese was intentional. This result was obtained through the efforts of Judge W.R. "Bill" Baker ("Judge Baker"), who at the time was a member of St. Andrew's Vestry. Judge Baker's efforts in this regard are detailed in a deposition taken on January 31, 2007, for purposes of preserving his testimony under Tennessee Rule of Civil Procedure 27. (A copy of Judge Baker's deposition transcript is being filed contemporaneously herewith.) In addition to Judge Baker's deposition, a deposition for the same purposes was taken of Dr. Hal Weatherby on June 13, 2007, describing St. Andrew's uniqueness as an Anglo-Catholic parish. (A copy of Dr. Weatherby's deposition transcript is also being filed contemporaneously herewith.)
The Answer goes on to allege that the Diocese's Vice-Chancellor specifically objected to the lack of any permanent or perpetual pledge of subordination to the Diocese in the parish's articles of incorporation, but that they were sent to the Secretary of State over those objections with the express consent of the Diocese's then Bishop, the Rt. Rev. John Vander Horst. It then continues:
Through the efforts of Father Conly, Judge Baker, Bishop Vander Horst and others, a conditional relationship between St. Andrew's and The Diocese was established. St. Andrew's owned the Property outright and continued to participate as a special Anglo-Catholic parish with The Diocese. This participation continued until doctrinal disputes forced it to sever ties with The Diocese and associate with the Diocese of Quincy in 2006. The fact of this conditional relationship was fully known to The Diocese, indeed Bishop Vander Horst participated in its very formation. As a part of the conditional relationship, Bishop Vander Horst and others acknowledged and acceded to St. Andrew's unwillingness to provide a perpetual pledge to the The Diocese, whether in its then-state or as reconstituted in 1982 and, again, in 1985.
The specificity of the claims made in these allegations are in stark contrast to the broad-brush approach of the complaint, which relies on the general language of a diocesan canon to contradict the express warranties of a recorded deed. And there is one more telling detail which should be noticed. The present version of diocesan Canon 10(3) reads as follows:

(a) After the adoption of this Canon, title to all real property thereafter acquired shall be taken and vested as follows:
. . .
(2) If title is to be held by any Parish, or by any Organization or Institution, which is incorporated under the laws of this state, then title shall be conveyed to it in its corporate capacity, but with these words added, “to be held subject to the Charter, Constitution and Canons of The Convention of The Protestant Episcopal Church in the Diocese of Tennessee, a corporation.”
Note that the words I have italicized were expressly left out of the Diocese's warranty deed to the parish corporation. Either the provision in question was added to the canons after the Diocese's transaction with St. Andrew's in 1966, or it was in the canons already in 1966, and was simply not followed. Either way, however, the language works to support the parish's claim in its answer that there were special negotiations which accompanied its purchase of its property from the Diocese in 1966, to ensure that there would be no trust interest hanging over the property which could give rise to the kind of claim which the Diocese is attempting to make now.

Thus the Diocese's case would not appear to depend on the Dennis Canon at all at this stage. It is making a claim based purely on the language of a local canon which it alleges was in effect at the time it conveyed the property to the parish corporation in 1966. And as we have seen, the Diocese's actions in signing a deed and warranting that title to the property was unencumbered should, if neutral principles of law are applied, take precedence over an unrecorded canon.

And that will be the subject of the next post, when I am able to complete it: the complaint alleges (in paragraph 31) that Tennessee courts observe "a general rule that property of a hierarchical church is not owned by a local congregation or the individuals thereof, but is held in trust for the general church, even when there is no express trust language in the deed" (citing a 1968 case from the Tennessee Court of Appeals). Is that still the case? We shall see.

Friday, January 15, 2010

Friday TED Talk: Beware the "Single Story"

With the ongoing barrage of disaster pictures from Haiti, it is well to remind ourselves that Haiti has produced its share of praiseworthy contributions to our common life, as well. For example, did you know that Alexandre Dumas (père) was of Haitian lineage, and that the great John James Audubon was born there? (The former once replied to a man who had insulted him about his mixed racial background: "My father was a mulatto, my grandfather a Negro, and my great-grandfather was a monkey. You see, Sir, my family starts where yours ends.") The people at TED have put up a video of a wonderful talk given at the University of California at Santa Barbara in 2004 by the Haitian novelist Edwige Danticat, in which (following another natural disaster there) she reminds her audience of these things and many more: here is the link to that talk.

The preceding paragraph will also serve to introduce the theme of the following talk, given at TED Global in Oxford this past summer. Nigerian author Chimamanda Adichie makes the telling point that our lives and our cultures are made up of many overlapping stories, and that to harken to just one of them is almost sure to lead to misunderstanding and conflict:

You may watch her talk in high-res video at this link, and read more about her here; she also has her own Webpage, where you can find out more about her novels and short stories. Download her talk from this page.

Thursday, January 14, 2010

Doing What One Can

There are many stories and posts out there about the awful situation in Haiti, and how people are trying to help. Here is one more suggestion, from the people at TED:

We believe one of the organizations best placed to make an immediate difference is Partners in Health. They have operated medical facilities in Haiti for more than two decades and have numerous people on the ground. (We had the honor of working with them as part of President Clinton's TED Prize wish. They're trustable and effective.)

We asked how best the TED community could help and this was their response. Do join us in making a donation here.

Help us track down helicopters! That's our #1 need right now is transport. There are thousands of badly injured ppl in Port-au-Prince, and there are PIH hospitals, supplies and teams standing ready to treat them in the central plateau. It's a long, difficult drive over uncertain roads -- OR a 10-min helo ride.

Satellite phones! Cell communications are mostly down and we can't send docs out into Port-au-Prince with no way to be in touch

Donate medicine, food, blankets, supplies ... anyone with in-kind products to donate can write to

Lend your time and skills -- we need experienced trauma surgeons, pediatric trauma surgeons, burn specialists, nurse anesthetists, trauma nurses

We need solar chargers, generators, fuel for generators

Water purification that does not require electricity -- so massive quanitities of water purification tablets or a system that is standalone

Transport -- we have had a few offers of private planes plus a big Air Canada jet -- we are filling them with doctors and supplies and mobilizing

Donate at (Note that you can specify "Haiti Earthquake Relief" by using the "Program" button.)

Tuesday, January 12, 2010

Fiduciary Failings at All Levels

It is very difficult to make a blanket diagnosis of what is missing in the Episcopal Church (USA). There are so many geographical and demographic variations across this huge country that it seems an impossible task to try to draw any general conclusions. And yet . . .

I have been thinking about a comment made here some time ago, in connection with a post about the polity of the Church. "Polity" comes from the same Greek root as does "politics": the root is polis, meaning the unique form in which Greek democracy expressed itself -- the "city-state", or the body of citizens living in a common environment (city) and organized as a self-governing state.

In the polis of ancient Greece, the people came together to make decisions and to elect representative officials in a periodic assembly. All citizens could come to that assembly, and in Athens in the fifth century before Christ, there were assemblies of as many as 43,000. And do you know what the Greek term for that assembly was? It was called an ekklesia -- the same Greek word used by the early Church to describe its local assemblies of communicants in a given city, and from which comes our word "ecclesiastical", meaning "of or having to do with a church."

It was the function of the ekklesia, among other things, to decide whether to declare war, and to elect strategoi in charge of the armed forces of the polis -- or what today we would call generals. During times of peace, the strategoi became politicians -- Pericles was one oustanding example. Such leaders were elected to annual terms; the elections were usually held in the spring, at a regular ekklesia called for that purpose.

The concept of an elected leader or representative thus has a very long history, dating back for more than 2,500 years. A person so elected has always been regarded as receiving the trust of the people who do the electing. Or, said in legal terms, there is a fiduciary relationship between the person elected and those who elect that person. The representative has a duty, as a fiduciary (the word comes from the Latin fides, meaning "faith, or trust"), to act in the best interests of the electors.

As soon as a representative relationship is established, fiduciary duties arise, and are inescapable. The law is especially protective of the people for whom a fiduciary acts -- they are called beneficiaries, or people by whom the fiduciary must do well in order to perform his or her responsibilities to them.

And so we come to the point of this little excursus into ancient Greek history: one cannot have an ekklesia without there being fiduciaries and beneficiaries. The former are elected or appointed to act in the best interest of the latter in doing the job for which they were elected. Now let us see how all of this applies to churches in general, and to the Episcopal Church (USA) in particular.

A parish (an ekklesia of individual communicants) calls its rector, just as a diocese (an assembly, or ekklesia, of parishes) calls its bishop. Both are elected to their respective positions -- but elected to do what? In the most general sense, they are elected to be shepherds of their flock -- to be, in a word, fiduciaries.

As my friend some time ago reminded me, the law recognizes six primary duties owed by any fiduciary to a beneficiary: (1) undivided loyalty, (2) full disclosure, (3) the exercise of care, skill, diligence and good judgment, (4) obedience to appropriate instructions, (5) confidentiality, and (6) accountability. These are the same duties which an attorney owes to his client, which a doctor owes to his patient -- and which a rector owes to his parish, and a bishop owes to his diocese. Let us flesh them out a bit.

The duty of undivided loyalty stems from the Biblical injunction that "No man can serve two masters." To take just one prominent example of a failing in this department, the former bishop of Virginia, the Right Rev. Peter James Lee, at one point had reached a decision that it was in the best interests of his diocese to enter into a standstill agreement with eleven parishes which had declared their intention to realign with a different branch of the Anglican Communion. The parishes had taken the votes required for their decision, and had recorded the results of the vote with the local circuit court, in accordance with Virginia law. But there the matter would stop, while the parties tried to reach an amicable solution short of full-blown litigation.

Enter the Presiding Bishop of ECUSA and her Chancellor. They demanded that Bishop Lee refuse to renew the standstill agreement, and they stated their intention to file lawsuits on behalf of ECUSA itself against the realigning parishes. So Bishop Lee was faced with a choice: whom to serve? His own diocese, or the Presiding Bishop and her Chancellor? The latter claimed -- without authority of any kind expressly granted to them -- to represent the whole Episcopal Church (USA), and to be acting in the fiduciary interests of its members.

But how were those "fiduciary interests" identified? And who identified them? As far as I am able to discern from the facts which are known, the fiduciary interests of the whole Church were identified by the Chancellor, David Booth Beers, in consultation with his own personal beneficiary, the Presiding Bishop. (Very little has been said about the inherent conflict of interest in an attorney's recommending, as a fiduciary, that litigation be instituted -- when it is his own law firm that will benefit the most from his recommendation.) There was no consultation of ECUSA's membership at large. No ekklesia had been summoned to ascertain its will to "declare war" -- i.e., to start litigation in the courts. A small "Executive Board" took refuge in the diocesan canons, which it interpreted to require the instigation of a lawsuit to recover property held "in trust" (there is that fiduciary language again). But "in trust" for whom -- for a disembodied "Episcopal Church" that was being led by the very officials who were ignoring their own fiduciary duties?

And so Bishop Lee, if he had truly been acting as a fiduciary to his own diocese, was under a duty to reject this spurious claim to "represent" a larger fiduciary interest (which no one had ever bothered to ascertain, and which was simply "assumed" to be known), and to maintain his undivided loyalty to the parishes which had elected him. But he failed -- and the rest is history.

The duty of full disclosure proceeds from the unarguable point that a beneficiary is entitled to know everything which the fiduciary knows, in order to make an informed decision. And again, I ask: is the recent history of ECUSA marked by full disclosure on the part of its fiduciaries? Has the Presiding Bishop made full disclosure of all the trust funds and other revenues of the Church which are being spent on litigation? Recall that at the recent General Convention, a resolution to require such a disclosure was angrily shouted down, on the ground that it would provide information to "robbers."

That's right -- "robbers." Those who were once fellow parishioners, and whose only desire is to uphold and maintain the faith as it was delivered to them, are now characterized as thieves and robbers. And who, pray tell, made that judgment? Were the deputies who reacted in that way carrying out their fiduciary responsibilities? Just which master were they serving -- the Presiding Bishop, again, or the diocese and parishes which elected them?

I could continue with my catalog of fiduciary failings: Does the decision to maintain all of this litigation in the name of the national Church -- a decision which cost the Church nearly $2 million last year alone, and which is projected to cost it another $3 million by 2012, show the exercise of "care, skill and judgment" on the part of those who lead it? Just whose "instructions" are being followed by the fiduciaries at the top? From whom, indeed, does the Presiding Bishop take her instructions? (The last I heard, it was from all those faithful Episcopalians who left money for the mission of the DFMS -- who are long since dead, and hence can no longer speak for themselves.)

Confidentiality I see in spades, but it is a confidentiality at the top, which amounts to things being done, and decisions being taken, in complete secrecy. That is not the confidentiality required of a fiduciary, who is subject to a duty of full disclosure to his principals -- his beneficiaries. When decisions are taken in secret, without full disclosure to and consultation with all of the affected beneficiaries, there is a violation of the fiduciary relationship.

And then we come to the last duty, the duty of accountability. Who is there who will claim that the Presiding Bishop is accountable for her uncanonical and lawless acts? Where are her colleagues -- her principals, the ones who elected her -- who will hold her accountable?

A review of fundamental fiduciary principles in this manner shows that, whatever else may be said in general about the failings and shortcomings of ECUSA, the Episcopal Church (USA) suffers from a massive failure in fiduciary duties and obligations -- owed to the ekklesia by those who are supposed to represent it, and therefore to act in its best interests. Divided loyalties, proceedings and decisions in secret without full disclosure, no exercise of good judgment, no obedience, and no accountability -- all are there, for everyone to see.

The law affords ample remedies to correct breaches in fiduciary duty. It may be more complicated in the case of a church such as ECUSA, because of First Amendment considerations. But no fiduciary is immune from the law's reach. Holding its fiduciaries to account may well be the most important key to ECUSA's survival -- if it is to survive as an ekklesia.