Anglican Curmudgeon

The State of the Dennis Canon - an Introduction to Current Law

2012-02-02T10:39:00.000-08:00

Two recent decisions by the courts in Missouri provide some of the best arguments and analysis to date for rejecting attempts by national churches, such as PCUSA and ECUSA, to impose trusts unilaterally on their respective parishes by following Justice Blackmun's gratuitous advice in Jones v. Wolf, 443 U.S. 595 (1979). I shall use these decisions as the basis for a series of posts on the current state of the law concerning ECUSA's Dennis Canon, since there have been a number of new decisions in recent years, and no opportunity thus far to survey them as a whole. (This post will constitute Part III of the series which I began here; Part II is at this link.)

Let us begin with some background. In his opinion for the majority in Jones v. Wolf, Justice Blackmun famously wrote (443 U.S. at 605-606; footnote omitted, emphasis added):

The dissent also argues that a rule of compulsory deference is necessary in order to protect the free exercise rights "of [443 U.S. 606] those who have formed the association and submitted themselves to its authority." Post, at 618. This argument assumes that the neutral-principles method would somehow frustrate the free-exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral-principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

In response to this judicial aside, or obiter dictum (something said in a judicial decision that is not part of the actual holding of the court in the given case), both the Episcopal Church (USA) and the Presbyterian Church made quick to adopt national rules which purported "to recite an express trust in favor of the denominational church" in all property held "by or for any parish" in that denomination.

The former church enacted its Dennis Canon as an "emergency measure" just a bare two months after the Jones decision was announced. (There are substantial questions as to whether proper procedures were followed in its enactment, but the secular courts have tended to brush those concerns aside.) General Convention happened handily to be scheduled to begin in Denver on September 11, 1979. The Rev. Canon Walter D. Dennis of New York was a former attorney who kept up with the legal news, read the Supreme Court's opinion, and decided that it would be a good idea for the Episcopal Church (USA) to follow Justice Blackmun's advice. So he had introduced through the House of Bishops (he was elected suffragan bishop of New York just three weeks after General Convention) the measure which eventually (after it became notorious) took his name. The language of this Canon (Sections 7.4 and 7.5 of Title I) states, in its entirety:

Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.

The Presbyterian Church (USA) had formed from the union in 1983 of its northern and southern branches. The latter, which had been known as the Presbyterian Church in the United States ("PCUS"), had added a Dennis-Canon-like provision to its governing Book of Order in 1982. The northern branch ("UPCUSA"), however, did not have any such provision in its Book of Order. When the combined churches promulgated a new Book of Order following their union, they kept the trust provision of the southern branch, but they adopted an "opt-out" clause which allowed any presbytery not previously subject to the trust clause (i.e., the presbyteries who had previously belonged to UPCUSA) to send notice to PCUSA (within eight years of the union) that it elected not to be subject to the new Section G-8.0201, which provided:

All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).

Note the slight differences in the wording of the respective trust clauses. The ECUSA version declares simply that all property is "held in trust" for the national church and the parish's governing diocese, while the PCUSA provision adds that the property is "held in trust . . . for the use and benefit" of just the national church, and not of the governing presbytery or synod. (Local congregations, or "sessions", in PCUSA are grouped into regional presbyteries, which in turn form synods, which then come together in the General Assembly of the national Church.) And the Dennis Canon adds a qualification which is only implied in the PCUSA version: "The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons." These differences will come to the fore in some of the cases to be discussed in this series of posts.

Perhaps the most unusual feature of both trust provisions is their attempt to engraft their trust on top of any already existing trust arrangements. Thus, the Dennis Canon claims to impose a trust on "[a]ll real and personal property held by or for the benefit of any Parish . . ." (emphasis added). And the Presbyterian version expressly asserts that its trust applies "whether legal title is lodged in . . . a trust or trustees . . ." (emphasis added).

One can only wonder how the trustees of a pre-existing trust are supposed to be (or become) subject to the authority of the national churches as well, so that in addition to holding the legal title in trust for the local congregation, they now have another trust beneficiary added to their responsibilities. As we shall see in our upcoming survey, this attempt at over-reaching has led to considerable confusion and unclear reasoning in the courts which try to reconcile the language with the law of trusts (and the ancient Statute of Uses -- a heritage from English law which, however, has not been adopted in every State).

For those who would like more background into the development of church trust law prior to Jones v. Wolf, I refer you to the two preceding posts here and here. They will give you a solid understanding for the survey of case law that will follow in the succeeding posts in this series. In brief, the Jones case legitimized an approach to resolving church property disputes in accordance with "neutral principles of [state] law", which gave the several States the freedom to apply their own principles of property law to cases involving churches and their denominations.

Nearly all such disputes revolve around a parish or congregation which, generally out of differences over doctrine, discipline or worship, decides to split off from one denomination to join another. For historical reasons explained in the earlier posts in this series, the courts tended to approach such disputes from a trust law point of view: most church property had been donated to the church, and so the question of which faction could continue to own the property following a dispute depended on the terms of the original donation -- if there were any such terms ascertainable.

Where there were no express terms, the courts (following English precedent) tried to imply them, and generally tried to discern which of the two factions was closer in doctrine and worship to the denomination as it was when the donor made his gift. But the U. S. Supreme Court in 1969 ruled out this approach, as tending to entangle the civil courts in questions of religious doctrine, which cannot be adjudicated by such courts consistently with the First Amendment of the United States Constitution.

In an effort to avoid such entanglement, earlier courts had declared that if a church was "hierarchical", meaning that it had a supreme adjudicatory which could decide all questions of doctrine, discipline, or worship in a manner binding on every congregation in the church, they would simply defer to the decisions of that highest adjudicatory body, and be guided and bound by it as well. Note, however, that this doctrine of "deference" had application only when principles of church doctrine, discipline, or worship were at stake -- that is, only in cases where the courts were conducting their inquiries into the differences between the tenets of the disputing groups based on the terms of an implied or express trust.

In matters involving the legal and equitable title to church property, however, principles of state law had broad application to all entities in a given State, whether secular or religious. Every such entity was bound to follow the same rules of law in creating, conveying and extinguishing interests in real and personal property. These were what the Supreme Court in Jones called the "neutral principles of law" which the civil courts were as free to apply in disputes between religious groups as they were in any other civil disputes.

In other words, under the "neutral principles" approach, the religious differences which may have brought about the dispute were irrelevant to the secular courts. They looked solely at the legal steps by which title had originally been acquired and subsequently held up until the time of the dispute. Then they made their decision based upon which party held the enforceable interest in the property, in accordance with standard principles of property and trust law.

Under these general principles of state law, there was one such uniform principle, adopted in every single State and stemming from the original version first enacted by the British Parliament in 1677, called the "Statute of Frauds", which required any interest in real property to be created only by a writing signed by the person(s) who owned the property at the time of the creation of the interest. Thus, one acquires title to one's house only by a written deed, signed by the previous owner(s) (and duly notarized and recorded, under other state law requirements). Land cannot be transfered validly by verbal agreement, or by words alone; there has to be a conveyance in writing. And to be other than a fraud or forgery, the writing has to bear the genuine signature of the person who owns the interest being conveyed, or the land out of which the interest is being created.

Similarly, a trust in real property arises, under the Statute of Frauds, only when there is a writing duly signed by the owner of the property being placed into trust. By that instrument, the title to the real property is divided into two parts: the "legal" title is given to the person(s) named as trustee, and what is called the "equitable" title is given to the beneficiary(ies) -- the persons for whose benefit the property is held by the trustees. Under the civil law, the beneficiaries have the legal right to come into court to enforce the terms of the trust, and to obtain an order directing the trustee(s) to perform in accordance with what those terms say. It is for this reason that the Statute of Frauds require that the terms of the trust be spelled out in writing; otherwise, there would be endless disputes over what the settlor of the trust (the original owner who agreed to place the property in trust) intended.

As equitable owners of the property, the beneficiaries may use and enjoy the property to the fullest extent permitted by the trust document, but they cannot convey legal title to it, or encumber or alienate it in any way -- those powers may be exercised only by the holder of the legal title, the trustee (again, if so authorized by the trust document). The Dennis Canon, and PCUSA's trust clause in its Book of Order, create an analytical problem because it is precisely the beneficiaries of the trust they declare who are attempting to create the trust in the first place.

It is common sense (and common law) that they could do so only if they had the full consent of the property owner to act in the owner's place. So the cases which we will be looking at go through various steps of analysis to determine just how, and when, this consent was given -- and whether it was an express consent, or only implied from the actions or conduct of the owner. And it is precisely in this process -- the steps in which a court looks at what constitutes the express or implied consent of the owner for the beneficiary to create a trust, acting for the owner and in his place, but in favor of the beneficiary -- that the civil courts have once again become ensnared in the convolutions of so-called "hierarchical" churches.

Some courts find that, by their very nature, hierarchical churches are so constituted that their members have consented in advance to every act that could be done in their name, just by virtue of belonging to the church and being a part of it. And other courts require more evidence of consent to this particular step of placing the member's property into a trust. The degree to which evidence of intent is required, rather than simply presumed from the hierarchical structure alone, is what analytically divides the cases and determines their ultimate outcomes.

It is also what determines (or should determine) their value as precedents for other courts approaching the same question. For it should be obvious, from what has already been said, that for a court to call a church "hierarchical", and then hold that by virtue of that name every member agreed to be bound by whatever the national church body enacted, including the placing of its property into a binding trust from which there is no escape, except if the national church allow it -- for a court to do such a thing, I say, borders on the nature of a "legal fiction".

A legal fiction is something the law simply presumes is the case, without being troubled by any evidence to the contrary, which is then used to apply a rule (such as the Statute of Frauds) which was not originally intended to be applied in that way. Thus, the legal fiction of a "hierarchical church" is used to imply the existence of a writing signed by the property owner which is sufficient to satisfy the Statute of Frauds. It sounds crazy, but that is where we are in many of the cases at which we will be looking. And literally millions and millions of dollars' worth of property has changed hands as a result.

In the next post, we will begin by looking at the sane approach to these questions adopted of late by the courts in Missouri. Then we will go on to consider how well the decisions from other states measure up to the standards of the Missouri decisions.

Diocese of Virginia Is an Emperor without Clothes

2012-02-01T07:06:00.000-08:00

Thanks to BabyBlue, we learn that the Episcopal Diocese of Virginia, barely a week after its Bishop held out the olive branch to the departed CANA parishes, used his other hand to hit them with a sucker punch: his attorneys have filed a motion with Judge Randy Bellows for an award of prejudgment interest. (You can read the text of the motion and supporting memorandum at the link to BabyBlue's post.)

"Prejudgment interest" means just what the name says -- it is interest on an amount made payable for a time period before any actual judgment is entered. (After a judgment is entered against a defendant for a sum of money, postjudgment interest begins to accrue on the amount of the judgment, and continues to accrue until the judgment is paid in full.)

How can interest accrue on an amount before it is awarded? Well, first of all, the amount has to be known and certain -- that is, the claim against the defendant has to be for a specific sum of money which is already known, or is readily ascertainable. For example, if I offer you $10,000 to paint my house, but then delay paying you after you have finished the job, so that you eventually are forced to sue and get a judgment against me for the $10,000, then you could ask the court to award (prejudgment) interest on the unpaid amount from the day you finished the job until the day the court entered judgment. (Once the judgment is entered, postjudgment interest takes over from there.)

Presumably the fact that an audit will fix the sums that were in each of the many bank and investment accounts as of the filing of the diocesan lawsuits in January 2007 means that the first criterion can be satisfied in this case.

The second criterion for an award of prejudgment interest is that the money debt was clearly owed all along -- that is, there existed no good reason at the time for withholding payment of it. And that is where the nitty-gritty of Judge Bellows' comprehensive 113-page opinion will come into play, and be crucial.

The Diocese's memorandum in support of its motion quotes Judge Bellows' words back at him:

In concluding that the CANA Congregations do not possess either contractual or proprietary interests in the property of the seven Episcopal Churches, the Court noted the “pervasive control” exercised by The Episcopal Church and the Diocese over the churches. Op. at 101. The Court emphasized the hierarchical structure of the Church and referenced “the undeniable fact that these seven churches *were part of a hierarchical denomination for decades and, in some cases for centuries” and that the congregations’ claims of autonomy and independence were “contradicted by the overwhelming body of evidence before this Court.” Op. at 101. The Court said that applying neutral principles of law, as established by United States and Virginia Supreme Court precedents, it is “clear - indeed, to this Court, it is overwhelmingly evident- that TEC and the Diocese have contractual and proprietary interests in the real and personal property of each of these seven churches.” Op. at 104. The Court stressed that “whi1e the CANA Congregations had an absolute right to depart from TEC and the Diocese, they had no right to take these seven Episcopal churches with them.” Id. (emphasis in original) Given the “compelling” evidence and “clear” law presented, the ultimate conclusion reached by the Court, while disappointing to the CANA Congregations, could not have come as any surprise; and they presumably segregated such sums and can readily turn the accounts over with the accrued interest. See Op. at 102, 104. Moreover, that the CANA Congregations may have believed there was a bona ñde dispute as to ownership of the real and personal property has no bearing on the decision whether to award prejudgment interest. See Gill v. Rollins Protective Servs. Co., 836 F.2d 194 (4th Cir. 1987) (neither Code 8.01-382 nor Virginia case law makes an exception to the general discretionary rule on pre-judgment interest for bona fide legal disputes).

Thus, because it was always so "clear" and "compelling", according to Judge Bellows, that the property belonged to the Diocese from the moment it filed its lawsuits to recover them, the CANA parishes should have handed over all their bank accounts right then and there. And since they did not do so, they now must turn over all the interest which that money could have earned in the five years of litigation until the entry of the judgment, according to the Diocese. (The prejudgment rate in Virginia is six percent per year, unless there is a contract or agreement between the parties for a lesser rate. Thus if there were $3 million in all of the parish bank accounts in January 2007, then interest would accrue at $180,000 per year, and over five years, the total would come to $900,000.)

There is one immediately perceivable flaw in the Diocese's argument, and it also casts doubt on the legitimacy of Judge Bellows' characterization of the evidence as "compelling" and "clear." For at the time of his first ruling in this matter in 2008, which told the CANA congregations that they could keep their properties under the terms of Virginia's Division Statute (§ 57-9), it was then "clear" to Judge Bellows that the Diocese did not have any entitlement to the parish properties or bank accounts.

The only thing that changed the Judge's view was the Virginia Supreme Court's quixotical decision, two years later, to read the statute in such a way that it could never apply to that sacred category of religious institutions defined as "hierarchical" by the courts. From that date on, perhaps, it was now "clear" in Virginia that the Diocese would prevail -- or was it? At any rate, the point is that all of the evidence which the Diocese (leaning on Judge Bellows, to be sure) now characterizes as "compelling" did not amount to anything approaching that description in 2008, and could have become so only after June 2010.

But the principal point here is that with this motion, the Diocese has revealed its truly impecunious state, and hence its inability to maintain and operate all of the properties it has won in the judicial jackpot. Moving for an award of prejudgment interest in these unique circumstances -- secular lawsuits between thousands and thousands of Christians on each side, contrary to the tenets of the Christian religion -- is to rub salt into a gaping wound in the body of Christ. For the Diocese to resort to such a tactic with its Bishop's blessing, so soon after Bishop Johnston held out the possibility of working out arrangements to allow the CANA congregations to remain in their buildings, is a sign of desperation -- of seeking to wring from the congregations every last farthing which the Diocese could ostensibly claim.

And notice the inherent one-sidedness of any such award: it goes to the Diocese if it wins, but the congregations could have gotten nothing from the Diocese, had they been the victors, since they had possession of the funds all along. That is why prejudgment interest should be reserved for those cases in which there was literally no justification for withholding the payment due.

The move thus gives the lie to Bishop Johnston's brave words to his Diocesan council just one week ago, as quoted here earlier (H/T: BabyBlue again):

Nonetheless, we have reason to be more confident than ever that our properties will be returned. For nearly two years, we have considered and discussed such a positive outcome, and now we must move to put contingency plans in place. We will be fully prepared for any eventuality... I strongly believe that we will be able to do what it takes over the next months and years to be faithful to the Church’s mission with respect to each one of the properties involved. . . .

Yes, Bishop Johnston, certainly you are following those "contingency plans"; certainly you are "prepared for any eventuality." You just need the prejudgment interest to bolster the amounts you will have available to keep up these properties until you can turn them into more cash to pay back the line of credit you took out to finance the lawsuits; we see that. That is why you now really want to stick it to your fellow Christians, and make them atone with every last drop of their blood for the offense they gave the Diocese by having the temerity to seek what they thought were their rights under Virginia law at the time.

Like the fabled emperor, the Diocese of Virginia now stands bare and exposed, for all (and not just Christians) to see.

The Hubris of Spending Other People's Money

2012-01-28T17:23:00.000-08:00

Budget discussions in ECUSA's Executive Council continued to be contentious today at the Maritime Center, as the various factions duking it out are beginning to realize how little control they have over the process. For the General Convention activists, it is all about losing sight of the "vision":

“Neither iteration – 19 percent asking or 15 percent asking – provides a new vision,” Katie Sherrod said in reporting the reaction of the Governance and Administration for Mission committee. “We need a vision for the future.”

(Note to Dr. [hon. causa] Sherrod: The vision is right there in front of you, but you are incapable of seeing it because it does not mesh with your view of the world. Meanwhile, facts on the ground are fast overtaking what little remains of the things over which you still have some discretion. Soon you will not have any choices left to discuss, let alone make.)

Laboring under a different form of blindness to the facts, some Council members complained that the numbers were dictating the structure, rather than the other way around:

“This was not a strategic exercise but this was a mathematical exercise,” council member Vycke McEwen said later in the morning while council further discussed the budgeting process.

Council member Lee Allison Crawford reported that her colleagues at her table felt the church was “just beginning to understand the system we inherited from General Convention 2009 with the last round of cuts.” The reorganized Church Center “has had success” and to change the system again would be wrong, she said.

“The structure has to be an authentic reflection of our values and so we really should change ministries with deliberation and care and reflection and not just by sweeping cuts in a spreadsheet,” she said.

Yet a third form of blindness manifested itself -- "If we don't like what we're being told are the facts, we don't have to believe that it's really happening":

While council heard much discussion the previous day about declining mainline denominational membership and financial struggles caused both by those membership declines and the current economy, council member Brian Cole said that his table colleagues questioned the assumed implications of that information.

He said they wanted to challenge the rest of the council to consider “if we believe decline is inevitable and ongoing forever, or do we really believe we have good news to share.”

Finally, a self-deluding syndrome appeared which is always the fatal sign of a disconnected legislative body -- that is, a body which has disconnected itself from the people who pay for the cost of their very existence in the first place. That syndrome arises from the legislators' firm conviction that they know better how to spend the people's money than the people themselves do:

Cole also echoed a theme of some council members who questioned what they said was an assumption that reducing the amount of money the denomination asks of its dioceses would actually result in increased spending on mission activities at that and the congregational level.

“We really have to decide what is a fair contribution for the work we want to do at the churchwide level and realize we really can’t control what other people do with the money they keep either at the diocese or a parish,” he said.

You have that right, Mr. Cole. Please do keep reminding those discussing the budget that it is not their money to spend in accordance with their own beliefs and priorities, but to spend only as responsible stewards on behalf of those who donated it. And if the national church and its member dioceses can think of little more than using their donors' hard-earned money to fund grandiose bureaucratic visions, or wasteful, alienating litigation, perhaps they should consider not accepting it in the first place.

Meanwhile, as usual, the final decisions will get made by the small group at the top, all the while as the lesser privileged receive reassurances that their concerns are "being heard":

The Executive Committee will meet later in the day Jan. 28 “to respond to recommendations and observations we’ve heard,” Presiding Bishop Katharine Jefferts Schori told council at the end of that discussion. The committee will discuss the result of that meeting with the whole of council on Jan. 29, she added.

“We’re trying to respond to what we are aware is some anxiety around this,” she said, adding that council had wanted to try a new process for crafting the 2013-2015 budget process and that the process began several months later than the process normally does.

So by tinkering with the process, they managed to leave themselves with still less time to consider the budget, and to create an atmosphere of confusion and disorder:

“That new initiative I think was creative and hopeful, and it has presented us with a reality that is very different than we’ve experienced in the past,” [Jefferts Schori] said. “It’s more chaotic, but I would also remind you that the Genesis story says there’s no creation in the absence of chaos.”

And I would respectfully remind the Presiding Bishop, and the rest of the Executive Council, that they are not "creators", but stewards. Chaos is not the hallmark of good stewardship, but of its opposite.

God save the Episcopal Church (USA) -- if it be God's will, and if not: well, then, let the cup at least pass from them with a minimum of further pain and destruction.

[UPDATE 01/29/2012: Another hallmark of good stewardship is openness and accountability, and after a good start (thanks in no small part to Executive Council member Lelanda Lee and her blow-by-blow accounts on Twitter), suddenly it is "business as usual" again. The Executive Council ended today by adopting a budget, but the statement it released at the close of the session does not say what budget it recommended to the Joint Standing Committee on Program, Budget and Finance! (The latter Committee begins meeting tomorrow at the same venue to shape the final version of the budget to be presented this July at General Convention.)

So we Episcopalians who donate, and have donated, all the funds they are now disposing of, will be kept in the dark until ENS's intrepid reporter, the Rev. Mary Frances Schjonberg, publishes her story about the final day of the meeting. And meanwhile, the Presiding Bishop and the President of the House of Deputies are engaged in a very public tiff over their channels of communication with the rest of the Church.

The Joint Committee's deliberations and changes to the budget will not be published until after General Convention, which means that the rank and file of pewsitters will have to remain ignorant until that Committee releases the budget at General Convention itself. Once they do send the budget to the floor, no doubt each House will allot the customary ten to fifteen minutes for its deliberation before adopting it as presented. And the Church will be launched on another of its triennia, with a formal -- but largely meaningless -- budget in place, which almost immediately the Executive Council will begin to modify yet again on the fly, in order to square with the facts on the ground.

Which facts, by then, will include more unilateral spending decisions by the Presiding Bishop and her Chancellor to launch yet more litigation -- regardless of budgetary constraints.

Isn't the "budgetary process" of the Episcopal Church (USA) one of the true marvels of twenty-first century corporate communication? As I have earlier observed, the gargoyles of Notre Dame have nothing on the Episcopal Church when it comes to taking all kinds of elaborate measures to fend off demons and other ill-intended spirits who, its leaders fear, might interfere with its functioning. For the pewsters on the ground, however, there is nothing left but to contemplate the grand edifice that has been built with their money, and to admire the skills of its architects, who seemingly have left nothing to chance.]

Episcopal Church Faces Budget and Structural Challenges

2012-01-27T17:01:00.000-08:00

The Executive Council of the Episcopal Church (USA) opened its winter meeting today at the Maritime Institute in Linthicum Heights, Maryland. Immediately two widely differing plans for the next triennial budget of the Church were presented for its consideration. (The Executive Council has to approve a draft budget at this meeting to hand off to the General Convention's Joint Standing Committee on Program, Budget and Finance, which will finalize it between February and July for presentation at General Convention.)

The first version of the proposed budget came from the Presiding Bishop and her Chief Operating Officer, the Rt. Rev. Stacy Sauls. It maintains the percentage which the Church will ask for in contributions from its member Dioceses at the current 19% for the next triennium (it had been reduced from 21% to 19% in the budget adopted in 2009 at Anaheim.) It also projects a reduction of $5.9 million in income over the period 2013-2015, and calls for a corresponding reduction in outlays.

The second version of the proposed budget came from the President of the House of Deputies, Bonnie Anderson. It calls for a reduced asking of 15% from the Dioceses, and would result in a budget reduction of $19.3 million, which Finances for Mission Committee Chair Del Glover admitted would lead to (further) "personnel adjustments."

Both the Presiding Bishop and the President of the House of Deputies made opening remarks to the Council, along with COO Bishop Sauls. (Bishop Jefferts Schori's remarks were not made from a prepared text, but are summarized in this ENS article.) Reading between the lines of each, and translating the Presiding Bishop's earlier prepared remarks about coming changes in structure, which may be viewed here, it is clear that the heads of the Church are not of one mind about how to deal with the challenges which it faces in the twenty-first century.

And those challenges are significant and substantial. They are summarized graphically in a presentation to the Council (zip file download is at this link) by Kirk Hadaway, who is the church official in charge of congregational research, and by Matthew Price, of the Church Pension Fund. Among other facts shown, 72% of Episcopal congregations were in financial stress as of 2010 (compared to 58% of other denominations for the same year) -- the highest level in the past decade, by far.

It is clear that there is momentum gathering for a proposal for structural changes in the Church, either to be presented at General Convention itself, or referred to its Standing Committee on Structure for analysis and a report to the 2015 Convention. There have even been hints that the Church cannot wait that long, and that a Special Convention might have to be called in the interim to make the cost-saving changes necessary if the Church is to adapt to the decline in its membership and finances. (Previously, I wrote about how the structure of the Episcopal Church as founded was not capable of carrying the modern superstructure which in recent times has been imposed upon it. Those observations are even more relevant now.)

The problem is that there are, as always, at least two conflicting constituencies striving for consensus on how best to make use of the Church's dwindling resources. The first constituency consists roughly of the Church's clergy, but its political power is wielded chiefly by the Bishops, through whom all constitutional and canonical changes must pass. The second constituency is made up of the active laity, along with many clergy, who do not have the time for the national politics of a socially activist church, and who want to see more resources remain with the Dioceses and congregations, for their mission efforts and local programs.

There is a third constituency as well, but its influence is waning. It may be said to consist of those clergy, bishop and lay activists who use the triennial General Convention as their springboard to launch ever more programs, Commissions, Committees, Agencies and Boards, and who then populate their creations in the interim between Conventions. This has resulted over time in a structure so top-heavy and convoluted that even Bishop Sauls complained he was having difficulty tracking all of them down when he began in his current position as COO. The interests of that constituency are unsustainable in a declining church.

The Presiding Bishop appears to float above the contesting factions, mouthing reassuring platitudes about the mission of the Church in a modern age, but then confers privately with her staff and her Advisory Council to map out the moves that will actually determine the future of the Church. The resulting tension between her and President Anderson is sometimes palpable, as may be seen in the presentation to the Executive Council of the dueling budgets.

These are indeed interesting times for the leadership of the Episcoipal Church (USA). To this observer, who has been very critical of the quality of that leadership, the current deliberations at Lithicum Heights appear to signal that word has finally reached the bridge that the ship of the Church has struck some kind of floating object, perhaps an iceberg, and may be taking on water.

I say "perhaps" an iceberg, because there does not yet appear to be any open recognition, whether on the Executive Council or at 815, of just how much the disastrous policy of "sue first and worry about the costs afterward" has split the Church from its basic mission, has alienated thousands of churchgoers, and has certainly contributed to the severe decline in funds available for mission. The refusal to acknowledge facts extends through the entire House of Bishops -- as witness the remarks by Bishop Shannon Johnston of Virginia at his most recent Diocesan Council meeting (H/T: BabyBlue):

As all of you know, the matter of our size, resources and abilities has been–over the past five years–under worldwide scrutiny. Our diocese is navigating a complex set of circumstances regarding our effort to return Episcopal properties to the mission and ministry of the Episcopal Church in the Diocese of Virginia. It would be a big mistake to characterize this simply as a “legal” battle. Rather, at its core, this is (make no mistake about it) about theology, meaning who we are as a Church in relationship with Christ and the world. At stake is our polity, that is, our ancient and defining order of our being the Church. Thus, it is altogether a matter of nothing less than our very faithfulness. It will therefore take more than the courts to settle things. . . .

It certainly will, Bishop Johnston, it certainly will. And you may eventually have to eat your next words, which I have emboldened for your benefit:

Despite the recent court ruling in our favor, we simply don’t know now what the future holds. Nonetheless, we have reason to be more confident than ever that our properties will be returned. For nearly two years, we have considered and discussed such a positive outcome, and now we must move to put contingency plans in place. We will be fully prepared for any eventuality... I strongly believe that we will be able to do what it takes over the next months and years to be faithful to the Church’s mission with respect to each one of the properties involved. . . .

Bishop Johnston? You may want to review pages 11 and 12 of that presentation made to the Executive Council mentioned earlier. They show two maps depicting the changes in Average Sunday Attendance in each Diocese between 1995-2000, and 2005-2009. The first map shows the Diocese of Virginia among the group reporting growth between 5-10%. But the second map shows the Diocese of Virginia in the group of dioceses which lost between 10 to 25% in ASA. With what people, I ask again, are you going to fill the churches whose properties you just took back in your lawsuits, and thereby "be faithful to the Church's mission" for them?

As I say: big changes are coming, but no one seems to have a clue what has brought the need for them about.

Cui Bono?

2012-01-25T23:59:00.000-08:00

At the risk of turning this into a political blog ten months before the election, I just have to note a few observations.

First: At present, the Republican candidates have the field. This is not yet, at any rate, a contest between any one such candidate and President Obama. It is a contest solely among Republicans. Could we please get that fact straight?

Second: Could Republicans please resist the pressure from all corners to declare a "winner" of their presidential nomination until they hold their national Convention this August? Surely anyone can see that the only voices pressing for a final selection now are those in the dedicated Obamedia, or those in the Republican Party establishment who superciliously think they would somehow benefit from having a known result at this point.

Third: The 2012 election will be a watershed -- so much is at stake that everyone and his brother is trying to manipulate the outcome this early, nine months and thirteen days before the election. That realization alone should furnish motivation enough to resist their slurs and blandishments.

Fourth: I would go further, and suggest a ban on all announcements of any kind of poll results which claim to match up candidates against each other, whether Republican vs. Republican, or Republican vs. Democrat. Can such polls, taken ten months before the election, have any meaning or significance whatsoever? Do you already know how you will vote when it is November? (How could you, since you won't even know until this summer who has the nominations?)

Fifth: As of this writing, a grand total of just sixty delegates to the Republican Convention have been determined by the primary results to date. That is sixty -- "six - oh" -- out of a total of 1,144 delegates needed to secure the nomination. Here is a graphic that puts into perspective where we are versus where things still have to go before there can be a definite result. The math can get complicated, because party rules require that delegates chosen in primaries before April 1 be allocated proportionately, while after that date the rules allow for "winner-take-all" results. Essentially, however, it remains true that someone new could enter the race in February or March and still have a possibility to win the nomination.

The 2012 election won't be over until it's really over, folks. Lots of things can happen between now and September, and even more between September and November. So don't get caught up in the media frenzy to know right now just who the nominees will be. Sit back, put your feet up, and enjoy the spectacle! It is truly one of a kind -- because who could stand it if this happened more often than once every four years?

How to Fight the pro-Obama Media and Win

2012-01-19T20:55:00.000-08:00

This exchange opened the much touted Republican candidates' "debate" tonight on CNN. It was entirely predictable from CNN's standpoint that they would try to build upon ABC's despicable pandering to its few remaining viewers, and generate a supposed "momentum" that would embarrass Newt in front of South Carolinian voters. John King's gambit backfired, in a manner most gratifying to watch -- Newt places his "question" into its proper political context, and Mr. King stammers to recover his aplomb:

Once Burned, Twice Shy: the Cautious Jurisprudence of Judge Randy Bellows

2012-01-14T12:40:00.000-08:00

Judges do not like being reversed by higher courts, although it is a constant possibility that comes with the territory. (One federal trial judge once told me point-blank: "I just get paid to make decisions. The Ninth Circuit gets paid to make them right.") The recent decision by Fairfax County Circuit Judge Randy Bellows comes after his first set of decisions, carefully researched and painstakingly supported with references to the record, was reversed by the Virginia Supreme Court in a rather slapdash effort which essentially told him nothing more than: "We don't think so. We don't agree with your reading of the [division] statute [Virginia Code § 57-9]."

So it was back to the drawing board -- and this time around, Judge Bellows has done everything in his power to make certain that he cannot be reversed again. He has carefully and thoroughly laid out all of the precedents he is bound to follow (there were not as many of them last time, under the division statute), and has even consulted other decisions at the trial court level (which are not binding on him). He has applied those precedents literally, taking them only for what they say, and nothing more -- so that if the Virginia Supreme Court wants to reverse him this time, they will first have to reverse themselves.

His opinion is laid out in nine sections: introduction, a statement of the case (background and procedural history), a description of the parties, a discussion of "neutral principles of law" under the applicable precedents, and then the meat of the decision, a section in which he goes through a detailed application of neutral principles to the facts brought out in the twenty-two days of testimony. There he considers the applicable statutes, deeds, church constitutional and canonical provisions, as well as the lengthy course of dealing between the national Church, the Diocese, and the eight individual parishes. He then adds two brief sections in which he disposes of the counterclaims, rules that the Falls Church endowment fund is under the control of the vestry recognized by the Episcopal Diocese, and finishes with a conclusory section in which he deals with the details of the surrender of the properties. (I set out this last section of his opinion in my previous post.)

As carefully reasoned as it is, Judge Bellows' opinion still came as quite a shock to most of the parishioners who have been worshipping in their familiar churches these past five years. And no doubt in the case of the Episcopal Diocese, the decision came as a species of "Watch out what you wish for" surprises: the Diocese has no congregations which are sufficient to put any of the properties to the uses of which they are capable, and no long-term means of financing their upkeep through pledges and contributions from the remnant faithful, who are in a steady decline. As this article painfully details, the Diocese of Virginia has stopped planting new churches, its membership has dropped by more than a quarter in just the last decade, and it had to take out a multi-million-dollar line of credit just to finance the cost of the litigation.

In its statement on the decision, the Diocese puts up a brave front about wanting to "return faithful Episcopalians to their church homes and Episcopal properties to the mission of the Church", but the realities contradict that pious sentiment, as the article just linked spells out:

The congregations of Church of the Apostles and Truro Church, both in Fairfax, Virginia, departed in their entirety; there are no continuing Episcopal congregations to inherit these buildings.

Other parishes, such as The Falls Church, in the city of Falls Church, and Church of the Epiphany in Herndon, Virginia, have seen small continuing Episcopal congregations separate from the much larger departing groups. These continuing congregations have meanwhile been meeting in nearby rented facilities. The state of these continuing congregations – often by their own admission – can be described as at best poorly prepared to maintain and operate large church properties, or at worst, teetering on the edge of being non-viable.

. . .

The Epiphany continuing Episcopal congregation has “…fewer people than most people might consider viable…” according to the parish report of the current priest-in-charge.

Thus what the Diocese asked Judge Bellows to do is precisely what Judge Bellows did, and now the Diocese has to admit that it will have to sell some of the properties in order to pay off its debts. This is not acting prudently, or even out of a sense of fiduciary duty -- a fiduciary acts to conserve assets, and does not sacrifice them to solve troubles of one's own devising. This is more the story of the dog in the manger, only written on a truly grand scale. Nevertheless, like the proverbial dog, the Episcopal Diocese will now pretend that it really wanted that hay all along, even though it can make no use of it.

And what, in the end, has Judge Bellows accomplished? Did he uphold Virginia law and precedent? Yes, he certainly did -- once he was instructed by his superiors that the division statute did not apply to the facts of this case. But by awarding all the property to the people least able to maintain it and keep using it for church purposes, he took "neutral principles of law" to a truly Pyrrhic level. And in the process, the decision makes a mockery of all the hundreds of years of tradition which it claims to honor and uphold.

Judge Bellows finds, for example, that the course of dealing between the parishes and the Diocese over hundreds of years demonstrated beyond any rational doubt that "TEC and the Diocese, through their Constitutions and Canons, and through the direct involvement of the Diocese, its Bishop and its personnel, had pervasive and controlling involvement in these churches and their properties . . ." (Opinion, p. 100). Perhaps that is why the decision comes as such a shock to those parishes. Little did they know what a court would deem important in deciding who ultimately controlled their properties. (And it turns out that it was not even the Dennis Canon that was decisive! So much for Canon Walter Dennis and his machinations to keep Episcopal parishes within the fold, no matter what the cost to the Church itself.) Judge Bellows cites details such as this, for example (Opinion, p. 93):

(3.) Each of these churches were known in the community as Episcopal churches, using the names and symbols of denominational affiliation, including street signs to point the public in the direction of an Episcopal church.
. . .
(6.) Each of these churches were served by a Rector who was an ordained Episcopal priest, a Rector who made at his or her ordination the Declaration of Conformity to the Doctrine, Discipline, and Worship of the Church. Further, at each of these churches, the Diocese has been involved in the selection of one or more of its Rectors.

(7.) Each of these churches used the Episcopal Church's Book of Common Prayer.

(8.) The vestry members of each of these churches, upon taking office, have sworn to uphold the doctrine, worship, and discipline of the Church.

(9.) Each of these churches used the Episcopal Church Hymnal. Some used Episcopal Sunday School materials or other Episcopal hymn books. . . .

My goodness -- do you realize what Judge Bellows left out? He forgot to mention the Sunday bulletin inserts that came from Episcopal News Service!

This, I say, is the work of a painstaking craftsman who wants to be certain that his carefully constructed edifice cannot be torn down by any higher court. He has diligently amassed thousands of minutiae from the daily transcripts, and used them to his overall purpose. One cannot fault the workmanship of his opinion.

In the final analysis, however, Judge Bellows has pointed up the extreme hypocrisy of current Virginia law with regard to church property disputes. For this entire structure that he has been at pains to erect is necessary only because of one thing: the Supreme Court of Virginia, while giving lip service to so-called "neutral principles," is in actuality still in thrall to the artificial dichotomy it draws between "hierarchical" and "congregational" churches. The outcomes of any given case turn not upon the neutral principles themselves, as they should, but instead upon the category into which a court places the disputants at the outset.

Are the parties members of a congregational church? Fine, then the majority decides who keeps the property -- no other result is possible, unless the articles or bylaws spell out some different requirement, which is highly unlikely.

Are the parties in a "hierarchical" church? Well, then, that makes all the difference! For just because the Church is hierarchical, that gives it all kinds of privileges which congregational churches can never have -- such as the ability to bypass the Statute of Frauds, and acquire a "proprietary and contractual" interest in a parish's property without that interest ever appearing of record in a chain of title, without ever having to contribute any money to its upkeep ("not necessary to demonstrate a 'proprietary interest'," says Judge Bellows, citing the Virginia Supreme Court), and without that interest interfering in the slightest way with the parishes' use of their property until such time as they want to affiliate with a different denomination. Then all the alarm bells will go off, the gendarmes will swoop down, and the parishes will learn whom they really have been supporting all these years.

Perhaps the most surprising part of Judge Bellows' opinion, therefore, comes early on, at pages 16 to 17, where he offhandedly asserts that "[t]here is no dispute in this litigation that TEC is a hierarchical church", and then justifies that assertion with this footnote:

A “hierarchical church” is a church “such as Episcopal and Presbyterian churches, that are subject to control by super-congregational bodies.” 280 Va. at 13 (footnote omitted); see also Baber v. Caldwell, 207 Va. 694, 698 (1967). The term “hierarchical” includes “super congregational” and “connectional” churches. Reid v. Gholson, 229 Va. 179, 188 (1985). Reid provides the following description of a “hierarchical” church:
. . .
Hierarchical churches may, and customarily do, establish their own rules for discipline and internal government. They may, and frequently do, establish internal tribunals to decide internal disputes arising in matters of discipline and internal government. These tribunals may be guided by a body of internally-developed canon or ecclesiastical law, sometimes developed over a period of centuries. The decisions of such tribunals may be promulgated as matters of faith and are entirely independent of civil authority. One who becomes a member of such a church, by subscribing to its discipline and beliefs, accepts its internal rules and the decisions of its tribunals. For that reason, the civil courts will treat a decision by a governing body or internal tribunal of a hierarchical church as an ecclesiastical determination constitutionally immune from judicial review. To do otherwise would precipitate the civil court into the "religious thicket" of reviewing questions of faith and doctrine even when the issue is merely one of internal governance, because in such churches the resolution of internal government disputes depends upon matters of faith and doctrine.

If the court were as painstaking with the evidence of "hierarchy" as it was with the parties' course of dealing, it could not have so easily reached this initial conclusion. For the only hierarchy which truly exists in the Episcopal Church (USA) is between a bishop and his clergy; the relationship between parishes, dioceses and the national church is not what one would traditionally call "hierarchical." The Reid opinion, for example, cites the establishment of "internal tribunals to decide internal disputes arising in matters of discipline and internal government" as one of the hallmarks of a hierarchical church. The Episcopal Church (USA), however, has no "internal tribunals" to resolve property disputes, or other matters of "internal government" -- that is why this dispute had to go to a civil court!

The national canons of discipline are not binding upon the member Dioceses (which have to adopt their own disciplinary canons if they want to implement the national ones) -- as the current case of South Carolina makes clear, and as was the case throughout the entire Church before the 1996 revisions to Title IV. There is a world of difference between "acceding" to canons (agreeing to follow them), and being "subject to" canons, i.e., being bound by them, without further ado. General Convention, for all its hyped-up vainglory, could never pass a canon giving it the right to select the bishop for each member diocese -- because that would contravene the fundamental autonomy of each member diocese to select its own leader in the first instance.

But once Judge Bellows placed the Episcopal Church (USA) into the "hierarchical" category, the result under Virginia law and precedent followed, as the night follows the day. And it is not right, under our First Amendment, that there should be such a profound dichotomy in our religious jurisprudence. The States (and the federal Government itself) are forbidden from establishing any Church. That means they cannot favor any one church over another -- but that is exactly what the courts do when they call a church "hierarchical", and then allow it to circumvent all manner of civil property law and recorded notice.

The irony is that the distinction was introduced in the first place as a means of keeping the courts from getting too involved in the internal polity of churches -- by way of respecting the restrictions imposed through the First Amendment! But the distinction has now been carried way too far to the other extreme, so that the courts have erected a privileged class of religious litigants who are able to control real property in a way that no other citizen can. The consent necessary for such an arrangement has to be what the law calls "implied", because it is rarely express or explicit. (Actually, the courts infer from the surrounding facts and circumstances that you must have meant to imply your consent to the other party's having final control over your property.) And to infer such an all-yielding consent requires judges to fill up a hundred pages with minute details of every sort, just to make it appear as though there really is some substance there -- that by using ECUSA's Hymnal and Prayer Book, and by putting a sign out front that they are an "Episcopal" church, the parishes in question really did mean to surrender final control of all of their property and bank accounts to outside entities who do nothing to sustain that property.

Not only that, but the consent which the law thus deems to have been "implied" has to be taken to cover even the case where neither the Diocese nor the national Church has any use for the properties, except to turn them into cash and prevent their continuing use for purposes of worship.

This is a sorry state of affairs, indeed. I am sorry to be an Episcopalian, and to be associated with such rapaciousness in the name of "fiduciary duty." (I am doing my utmost to try to convince my fellow Episcopalians of their leaders' folly.) No Episcopalian should be proud of what their national Church has accomplished in Virginia, or in New York, or California, or Ohio, or Connecticut, or North Carolina, or Georgia, or New Jersey. Instead, one should convict the Episcopal Church (USA) and all of its bishops of a massive breach of fiduciary duty themselves. For they have manifestly failed utterly to warn and advise their parishioners that any contributions made to their local parish church would become forfeit to the diocese and the national Church should they ever have a falling out over doctrine -- instead, they have allowed those parishioners to believe, over hundreds of years, that the local parishes were in control of their own property.

Passing national canons in General Convention does not excuse the bishops from their fiduciary duty to advise and warn parishioners constantly and in advance of the consequences of giving money to their local church. For as Bishop O'Neill of Colorado famously testified in court there, "No one expects church members to know about the canons." It is up to the Bishops to see to it that every parish is made fully aware of the consequences of belonging to ECUSA, and they have failed miserably to do that. And for that very reason, we have the spectacle of the shock and surprise that comes after contributing millions and millions of dollars -- only to be told that what you were supporting really belonged to distant authorities who would never be able to put your good works to the use that you did, for so long.

"The Episcopal Church welcomes you." Indeed.

Harrumph.

A Picture Worth a Thousand Words

2012-01-13T07:47:00.000-08:00

I am working on a more detailed analysis of the Virginia decision, and hope to have it completed by this weekend. In the meantime, here is a great graphic, which makes its essential point simply, subtly and elegantly, for your appreciation:

Satire on "Primates" with Sir David Attenborough

2012-01-11T16:24:00.000-08:00

As an interim post while I deal with more weighty matters, I offer some (perhaps needed, perhaps not) levity.

This video has been around since last July, but for lack of publicity has garnered only 830 views or so on YouTube. The satire is of the highest order, as only the Brits can do it, and deserves a much wider audience -- so I hope all the Anglican blogs will pick it up:

Fairfax Circuit Court Awards Parish Properties to Episcopal Diocese

2012-01-10T20:34:00.000-08:00

Word has just been received that Judge Randy Bellows of the Fairfax County (Virginia) Circuit Court has issued a 113-page letter opinion deciding the issues in the lengthy property trial last year completely in favor of the Episcopal Diocese of Virginia and the national Church. The Judge's summary of his rulings is as follows:

In this Letter Opinion, the Court makes three princip[al] rulings:

1. TEC and the Diocese have a contractual and proprietary interest in each of the seven Episcopal churches that are the subjects of this litigation. Specifically, the Court finds for TEC and the Diocese in their Declaratory Judgment actions and, among other relief, orders that all real property conveyed by the 41 deeds, as well as all personal property acquired by the churches up to the filing date of the Declaratory Judgment actions (on or about January 31, 2007 or February 1, 2007) are to be promptly conveyed to the Diocese. (Additional instructions are provided at the conclusion of this Letter Opinion.)

2. The CANA Congregations‟ Amended Counterclaims are denied in their entirety. Specifically, the Court finds that the CANA Congregations, in that they are not Episcopal Congregations, do not possess either contractual or proprietary interests in the property of the seven Episcopal Churches at issue. They are, therefore, enjoined from further use or control of these properties and must promptly relinquish them to the Diocese. Moreover, the Court finds no merit in the CANA Congregations‟ claims for unjust enrichment, quantum meruit, and constructive trust and grants TEC‟s and the Diocese‟s motions to strike these claims.

3. The vestry empowered to elect directors to the Falls Church Endowment Fund is the vestry recognized by the Diocese as the Episcopal vestry of The Falls Church, that is to say, the Continuing Congregation.

The opinion then concludes (after 100 more pages):

It remains to determine the disposition of the personal property of the seven churches. Virginia Code §57-10 provides as follows:
When personal property shall be given or acquired for the benefit of an unincorporated church or religious body, to be used for its religious purposes, the same shall stand vested in the trustees having the legal title to the land, to be held by them as the land is held, and upon the same trusts or, if the church has created a corporation pursuant to §57-16.1, to be held by it as its land is held, and for the same purposes.
Thus, the disposition of the personal property of these churches follows the disposition of the real property of these churches, that is to say, it must also be turned over to the Diocese. There is a significant caveat to this, however, and it arises from the fact that there came a point in time when it was absolutely clear that a contribution or donation or the payment of membership dues to one of the seven congregations was not a contribution to an Episcopal congregation.

Therefore, the personal property acquired by the CANA congregations after this point in time should remain with the CANA congregations. There are four possible points in time which the Court has considered:

First, the Court has considered using as a point of demarcation the various points in time when the congregations made varying arrangements to withhold contributions from the Diocese.[FN 84]
________________
[FN 84]According to CANA, “all of the CANA Congregations curtailed or terminated their donations to the Diocese in response to the actions of the denomination at its 2003 General Convention.” (CANA Brief #1A at 159.) Congregants were given the opportunity to designate that no portion of their title should go to the Diocese; or the congregation stopped giving money to the Diocese entirely; or the congregation established a congregation only fund. Id. at fn. 120.
________________

Putting aside the accounting difficulties in applying these various dates to the various circumstances, and whether it would even be possible to account for the individual choices of parishioners where they were given the opportunity to designate, there is a much more dispositive objection to using this as the point of demarcation: Whatever may have been the level of discord and disenchantment with TEC and the Diocese, each of the seven churches in 2003, 2004, 2005, and through most of 2006 remained Episcopal churches, constituent members of the Diocese and TEC.

Second, the Court has considered using as the point of demarcation the date upon which each of the CANA Congregation voted to disaffiliate pursuant to §57-9(A)(December 2006-January 2007). (Alternatively, the Court could use the date when each congregation filed its §57-9(A) petition.) Here, too, there are significant problems: first, it has now been conclusively determined that §57-9(A) is inapplicable to these proceedings; second, it is not the act of taking a vote, or even the filing of a petition, that renders a decision to affiliate with a different denomination final and conclusive – rather it is the Court‟s approval of the petition. That did not come until January 8, 2009, and in any event was reversed by the Virginia Supreme Court.

Third, the Court has considered using as the point of demarcation the Diocese‟s January 22, 2007 Notice of Inhibition, or January 22, 2007 resolution determining the properties to have been abandoned, or the August 1, 2007 Notice of Removal. While arguments could be made in support of each of these dates, especially the January 22, 2007 resolution declaring the properties to be abandoned, they do not have the public notice character of the fourth possibility, which is the one this Court adopts.

This fourth possibility, which this Court adopts as the point of demarcation, is the filing date of the Declaratory Judgment actions by the Diocese against each congregation on either January 31, 2007 (involving five of the congregations) or February 1, 2007 (involving the two remaining congregations).

After this date, no contribution made, no donation made, no dues paid by a congregant, could reasonably have been made with the understanding that the money was going to Episcopal congregations. (While the seven churches, for the reasons stated in this opinion, never lost their character as Episcopal churches, the Court‟s focus here is on the actions taken by – and the Declaratory Judgment actions filed against – the CANA congregations.)

Therefore, the Court orders that all personal property acquired by the congregations before January 31, 2007 or February 1, 2007 (depending on the congregation) shall be conveyed to the Diocese and all liquid personal property (e.g., contributions and donations of money) acquired after these dates shall remain with the CANA Congregations. As to tangible personal property acquired by the CANA Congregations after these dates, they shall be conveyed to the Diocese unless the CANA Congregations can establish that they were purchased solely with funds acquired after these dates or were donated to the CANA Congregations after these dates.[FN 85]
______________________
[FN 85] As to the argument that the CANA Congregations should not have to convey to the Diocese funds on hand as of January 31, 2007 because such funds were used to maintain the church facilities since then, the Court would note the obvious fact that the CANA Congregation had the use of the property since that point in time as well.
______________________

TEC and the Diocese seek an accounting as part of their requested relief. To the extent an accounting is necessary to implement the Court‟s orders, an accounting is ordered.

TEC and the Diocese are to prepare and submit a proposed final order within 45 days of the issuance of this Letter Opinion, affording the CANA Congregations a reasonable opportunity to note their exceptions. If either party believes a hearing is necessary regarding the terms of the Final Order, they should communicate this to the Court, by letter, no later than 30 days from today.

The opinion is remarkable for its exhaustive consideration of every possible Virginia statute and previous case (including an unreported one) that could bear on the issues at stake. Along the way, it notably holds that the Dennis Canon (and its local diocesan equivalent) were ineffective per se to create a trust interest in favor of the diocese or national Church. But the bulk of the opinion appears (on a very quick first read) to be devoted to arriving at the same result (i.e., as if the Dennis Canon and its local equivalent had established a trust) by other means. It reaches its conclusion in favor of ECUSA and its diocese by drawing upon a minutely detailed analysis of the course of conduct between the parishes in question and the former entities over more than a hundred years (and in the case of Falls Church and a few others, for many more years than that -- but in the case of the Church of the Epiphany, on a course of conduct extending for just the first twenty of the last twenty-four years).

In doing so, however, the court ends up equating what it terms a "proprietary and contractual interest" of the diocese in individual parish property to the functional legal equivalent of an express or implied trust in favor of the diocese (and the national Church). And since it recognizes that Virginia law does not allow express or implied trusts in favor of denominations, the marvel is that Judge Bellows can still conclude, by drawing heavily upon his interpretation of a Virginia statute (§ 57-16.1), that the parishes effectively controlled their own properties only for so long as they remained constituent members of the Episcopal Church (USA) -- which is exactly what the Dennis Canon states, in haec verba.

The result is a carefully-crafted holding that appears (at first blush, at any rate) to be insulated against any federal constitutional grounds for overturning it -- unless it can be argued that the "proprietary and contractual interest" which the court found to be decisive is simply the inherent byproduct of being affiliated with what the Virginia Supreme Court already deemed (without any distinctions) to be a "hierarchical church." If that is the net effect of this decision, one has to wonder whether or not Judge Bellows has given the Episcopal Church (USA) an unassailable preference by the back door, and so thereby "established" it as a specially preferred type of church for purposes of resolving property disputes, in violation of the First Amendment.

It will take some time to analyze the opinion more carefully, because Judge Bellows is nothing if not painstaking and thorough. I also have to prepare for a court proceeding of my own tomorrow, and so it may be a day or two before I can publish a full assessment and analysis. Baby Blue has more background and first-person reportage at this post.

Prayers go out to all the congregations affected by this ruling.

The Republican Nomination Process in 2012

2012-01-08T15:24:00.000-08:00

Today I start a new category of posts: "Election 2012." Although this is not a political blog, part of its leavening consists of commentary on the contemporary scene -- and that certainly includes politics. And since this will be a decisive election year for our country, I will do my small part to illuminate the various forces which are at work even now, eleven months ahead of the election, to shape our future.

Some disclosures at the outset: I am registered with neither major political party, but vote as an Independent. That being said, I am very much against allowing Barack Obama another four years in which to wreak his particular brand of havoc more than he has already.

As for the current crop of Republican candidates, I have to say I am not yet enthusiastic about any of them. At the same time, one of my most strongly held beliefs is that January or February is way too early to settle upon a candidate who will oppose Obama in November.

To do so simply plays into the media's hands. For make no mistake, the media is desperate to control the outcome of the forthcoming election. And the sooner the Republicans pick a candidate, the sooner the media can send out their legions to pry into every nook and cranny of his or her life -- in a manner they have never inflicted upon Barack Obama -- and never will. That is the scandal of the present-day hacks who populate the "media" in this country.

Thankfully, to counter such blatant partisanship, we have the Internet as an equalizer. On the Internet, the media's gross partisanship is exposed every day, for all to see. Anyone can dissect a so-called "story" or column by E. J. Dionne, or David Brooks, or Paul Krugman -- only those already fully indoctrinated, and who still pay to read those folks in their printed versions, are incapable of perceiving their bias.

And it's not really their bias that I am attacking. Bias I can easily deal with -- as an attorney, I am trained in techniques to expose it, and thereby to neutralize it. All of us, frankly, are biased in some sense -- because it is impossible to make any choices without exercising some bias. So bias, per se, is not the problem.

Instead, the problem is the products of their bias: their opinions, their criticisms, their recommendations as to what should be done. Paul Krugman, for example, is mentally incapable of conceiving a government subsidy which he would actively oppose. And E.J. Dionne is mentally incapable of evaluating objectively anyone who bears the label "Republican" -- just as is Maureen Dowd, or Eleanor Clift, or Jonathan Alter.

I read copiously from a wide spectrum of opinion every day. And given my own bias, I of course prefer those writers with whose opinions or criticisms I most agree. "Even a dog, however, knows the difference between being stumbled over and being kicked," said Oliver Wendell Holmes. And while I see a good deal of stumbling on both the right and the left, it is in the media --mostly populated by the left -- that I am struck by the continual kicking that goes on.

Where but on the left, for example, did we see the criticisms of the Santorums' treatment of their short-lived infant son as "ghoulish"? And where but on the left have we seen the smear pieces proliferate, from Robert Bork and Clarence Thomas all the way down to Newt Gingrich and Herman Cain? No, the left specializes in kicking; it even kicks those who dare to publish hard facts about their own. Rep. Darrell Issa, for example, has done a yeoman's job of exposing the hard facts about Attorney General Eric Holder's "Fast and Furious" gun-running operation, but the only ones who have accused him of "racism", and who otherwise have tried to smear him, have been the left's attack dogs. The rest of us can tell the difference between exposing inconvenient facts for evaluation on their own, and slanting the facts to produce a smear -- just as a dog can tell when he's been kicked.

So I come back to the 2012 Republican primaries. It is not, I humbly suggest, in any Republican's interest to have a clear choice of nominee settled upon before this summer's convention. The sooner a nominee emerges from the pack, the sooner will the attacks, or what I call "the kicking", commence on the left. To be sure, there is a lot of that going on already, but it has been diffused among the eight primary candidates, and has yet to gather any force, or achieve any lasting effect.

And look at how Mitt Romney has largely escaped most of the kicking from the left to date. Herman Cain was sunk after a few outings; Ron Paul, Newt Gingrich, and now Rick Santorum have each suffered in the voting from smears directed their way as each seemed to surge momentarily ahead. But Mitt Romney, who has been at the top of most of the polls from the outset, has largely been immune from the left's attacks -- why is that?

The answer is patent: the left wants to see Republicans select Romney as their candidate, and wants to see it happen as early as possible. They see Romney, with his Mormonism, his backing of universal healthcare as governor of Massachusetts, and his Wall Street ties, as the ideal opponent for Barack Obama to defeat. In the liberal media, the fix is in for Romney in 2012, just as it was in for John McCain in 2008. Better the mincemeat they know they can make from what they are given, than the unknown ingredients of an upstart, or black horse. So fear not -- once Romney (or whoever) becomes the Republican nominee, the gloves will be taken off.

As the coming weeks of the Republican primaries unfold, therefore, I am all for every candidate placing first or second at least once, and preferably several times. That is the only guarantee that Republicans will be able to make a free and unhurried choice at their convention in August. Everyone talks of a "brokered" convention, but that nineteenth-century phenomenon is a dinosaur in these days of the Internet. There will be no smoke-filled back rooms where destines are settled, so long as everyone at the convention has access to the Internet and can report what is going on for instant assessment and reaction.

Therefore I say: bring it on, and let everyone have their day in the sun! A convention with no clear winner at the outset will be a far more effective means of solidifying the opposition to President Obama than will someone who makes it into August so battered and bruised by the kicks they have received in the media that the overall perception they can generate by that point is little better than one of damaged goods.

Meanwhile, back on the hustings -- is anyone for directing a few kicks Obama's way -- without hesitating for fear of being called a racist? (I know, I know -- there will be those who will readily jump on any combination of "kick" and "Obama" in the same sentence as being racist per se. But we have to live with what we have, and Obama is what he is. So get over it, and focus on his policies that need to be attacked for the disasters that they are.)

Whatever criticisms of President Obama are made from the right, no matter how factually based or objective they may be, will never be viewed as anything but "kicking" on the left. So the candidates should not let that reaction deter them. And for heavens' sake, cease letting the media set the goal posts! Today's "debate" in New Hampshire should be the very last one which the media is allowed to stage just so they can try to embarrass the candidates with questions they would never dream of directing at President Obama. Enough already -- nothing productive is gained on either the right or the left by such mismatched spectacles. The gulf between the two sides just gets wider and wider.

Whatever positions and priorities can usefully be staked out in the 2012 campaign at this point will most likely have to be reshaped once we know what the Supreme Court's decision on Obamacare will be. That will not be announced until the end of June, after most of the primaries are over; the Republican convention will begin on August 27. Republicans have more than enough time to choose a candidate wisely and deliberately, without being rushed into it by the media's manipulations. Here's a toast, therefore, to a wide-open field come August!

Big News in Fort Worth

2012-01-06T10:26:00.000-08:00

Today the Supreme Court of Texas noted probable jurisdiction over the direct appeal filed by Bishop Jack L. Iker and his diocesan corporation from the summary judgment granted in favor of ECUSA and the rump diocese of Fort Worth a year ago. (The Texas Supreme Court accepts very few direct appeals from the judgments of trial courts, and there are strict standards which such requests must satisfy. The Court's acknowledgment that there is "probable jurisdiction" means that, at this stage of the case, it appears that all of the jurisdictional requirements for a direct appeal are satisfied. By doing so, the Court signals that it will postpone any final decision on whether it in fact does have jurisdiction under the applicable standards to its eventual disposition of the case. Meanwhile, it will hold oral arguments and deliberate on the case as though it had been an appeal accepted from one of the Courts of Appeal.)

No definite date for oral argument appears to have been set yet. The arguments in the San Angelo case (Church of the Good Shepherd), currently set for February 29, 2012, are the last dates for arguments which the Court currently has scheduled. Its calendar of arguments for March and April should be published shortly.

Of course, this is huge news for Bishop Iker and his Diocese. First, the Texas Supreme Court accepts the petition for review in the Good Shepherd case, in which it notes that the issues to be decided are as follows:

The principal issues in this property dispute between the diocese and a breakaway congregation are (1) whether in Texas the dispute should be decided by “neutral principles” – using established trust and property law and taking account of deeds, the governing language employed by a local church and the larger denomination – or by “compulsory deference” – determining where church members place ultimate authority over property use and (2) whether the trial court erred by deciding the diocese owns the property.

Now that same Court signals that it will decide also the issue of whether, under "neutral principles," the national Church can impose any kind of trust on the property and assets of one of its member dioceses. Along the way, it will also address the question of whether there is any impediment to the decision of a religious corporation, organized under Texas law, and reached democratically in accordance with its governing documents, to amend those documents so as to dissolve that religious corporation's affiliation with the national Church.

The Court's eventual decision could have ramifications for the similar cases at issue in San Joaquin and Quincy. As soon as I learn more about the date for oral arguments, I will update this post.

[UPDATE 01/06/2012: I have now learned the briefing schedule for addressing the merits of the appeal from Judge Chupp's decision. (The previous briefs addressed only the grounds for taking jurisdiction of the appeal directly, without going through the Court of Appeal.) Bishop Iker's opening brief on the merits is due February 6, 2012. The response by ECUSA and the "Local Episcopal Parties" is due February 27, 2012, and the reply by Bishop Iker is due by March 13, 2012. This schedule means that oral arguments will probably not be held before May or June 2012, and by then we should know what the Court decided in the San Angelo case.

The rump diocese has published its view of the Supreme Court's action at this link; the statement from Bishop Iker and his diocese may be read here. It is most interesting to see how the former group now tries to spin this news in a positive direction -- from its point of view, of course. Thus, the Local Episcopal Parties say:

While the Local Episcopal Parties believe that this case does not fit within the "very limited," "strictly construed" requirements for a direct appeal, we welcome the chance to reach an expedited resolution of this matter.

Is that so -- that they truly welcome the chance to reach an expedited resolution of this matter? Does that now explain, perhaps, why they hired four separate law firms, brought no less than four individual lawsuits in Texas state and federal courts against Bishop Iker, repeatedly filed, withdrew and then amended their motions for summary judgment in the trial court, added in as parties every single one of their parishes and Bishop Iker's parishes, and generally did everything in their power to make the lower court proceedings as complicated and as expensive for everyone as possible? (Please see this page for individual posts chronicling all the gory details.) And is that why they spent so much in legal resources in opposing at every step the direct appeal to the Supreme Court? Such maneuvering seems to this attorney a very strange way to signal your "welcom[ing] the chance to reach an expedited resolution of this matter."

But there is more. The statement by the Local Episcopal Parties goes on to assert:

Judge Chupp’s Order is well-reasoned, correct on the facts and the law, and consistent with the vast majority of cases around the nation – including, in the last months alone, those of the Austin Court of Appeals (Mar. 16, 2011), the Georgia Supreme Court (Nov. 21, 2011), the Pennsylvania Supreme Court (Oct. 17, 2011), and the Connecticut Supreme Court (Oct. 11, 2011). All of these cases stand for the simple proposition that individuals may leave a Church, but they cannot take the Church's property when they leave.

Who writes these things? Don't they realize that there was no decision by Judge Chupp himself, but that he simply threw up his hands and signed the version of the summary judgment order presented to him by ECUSA's and the rump diocese's attorneys -- rather than independently analyze the law and the facts on his own, and without anyone's putting words into his mouth? "Well-reasoned, [and] correct on the facts and the law," indeed. No doubt that is why the Supreme Court of Texas feels that this is one of the very rare cases in which they should grant a direct appeal from the trial court's decision.

And please -- Judge Chupp's "decision" (such as it wasn't) was "consistent with the vast majority of cases around the nation? Including the March 2011 decision by the Austin Court of Appeals which the Texas Supreme Court also recently saw fit to decide to review (the "San Angelo case")? And including the refusal by the Pennsylvania Supreme Court to review the decision from the lower Commonwealth Court -- which was no decision at all by that Supreme Court, but simply an order denying review?

There go two of the four decisions listed as being part of the "vast majority" of decisions "around the nation" which were decided "correct[ly] on the facts and the law." And what about the decisions reported on this blog from Indiana, Louisiana, Missouri, South Carolina, and -- most recently -- Illinois? How do they figure in calculating what the Local Episcopal Parties are pleased to describe as the "vast" majority of cases from around the nation? And why should the independent Texas Supreme Court jump onto an imaginary and selectively constituted bandwagon, that is constructed uniformly out of other state courts' failures to comprehend just what "neutral principles" really means? Is that how you would like a court judging your case to behave?

Notably, of course, it does not bear mentioning that every single one of the cases so cited involved suits between parishes and their dioceses, and not suits between a diocese and the national Church (which is not a separate legal entity in its own right, but is simply the agglomeration of its individual members, acting only when those members gather in a general convention).

But that, of course, is a topic for a separate post. Enough for now -- I hope that even the most jaded of Jefferts-Schorians can see the rose-colored spin being adduced here by those who should most be leery of any notice of their case taken by Texas' highest court.]

The 2011 Highlights in Church Legal News

2011-12-31T22:25:00.000-08:00

This blog's principal focus is tracking the vicissitudes and adventures of the Episcopal Church (USA) in the secular courts, as it engages in an unprecedented campaign of "intimidation by lawsuit" against the dioceses and parishes who have reached the limits of their tolerance with the national Church's leadership in general, and with its individual bishops in particular. For -- make no mistake -- it is the collected bishops of the Episcopal Church who are enabling the Presiding Bishop and her personal Chancellor to bring more than seventy-five separate lawsuits across the country, each of which seeks to seize real and personal property from dissenting congregations and dioceses who have dared to disaffiliate from the national Church. The latest figures available online run only through July, but after just those seven months, the Church's budget item for litigation was already more than two-thirds spent, and once again seems certain to be exceeded significantly by the time year-end figures are released.

Because ECUSA's House of Bishops chooses not to rein in its presiding officer, and because not even General Convention will place real or effective limits on her budget for lawsuits, the guiding words for the denomination have been replaced sub silentio: it is no longer "the Episcopal Church welcomes you," but rather "the Episcopal Church sues you" -- if you dare to disagree with its Presiding Bishop.

She takes it as her personal mission to fight over every Episcopal altar cloth, chalice, prayer book, hymnal, and pulpit, as well as every square inch of real estate and every penny contributed by faithful parishioners. She does so on the theory that as the Church's main "fiduciary", she owes it to Episcopalians everywhere to see that no dastardly dissenter keeps one scrap of "Episcopal Church property" without a court decision allowing them to do so.

This officially pugnacious policy, pursued relentlessly at the highest level as long as the House of Bishops continues to stand by and do nothing to curb it, has led to an unholy, and decidedly un-Christian, collection of legal precedents in various state and federal courts. If anything may be concluded from their pitiful attempts to wrestle with (or, more frequently, studiously to ignore) the canonical infelicities of the Dennis Canon, and similarly ill-conceived and crudely expressed attempts by the national Church to keep dissenters in line, it is that the secular courts are largely unsuited to the tasks which ECUSA's litigation program has put before them.

First of all, having mistakenly convinced themselves during "the Enlightenment" that civil courts have absolutely no ties to their predecessors in the medieval Church, their modern counterparts have proved themselves spectacularly ill-equipped to decide church property cases in accordance with actual "neutral principles of law." The paradox is that the approach using "neutral principles" is based wholly in the secular reasoning of the Enlightenment, but in church cases those same "enlightened" courts largely decline to honor such principles, and choose instead to defer to phony notions of religious authority and hierarchy. There are some notable exceptions now and then, but those exceptions largely serve to prove the wisdom of St. Paul's admonition to Christians to settle their disputes outside of the secular courts.

Herewith, then, from a specifically canonical point of view, follows a chronological summary of the ups and downs of the Episcopal Church (USA) in 2011, with links to the posts that discuss the desultory details:

January - Judge Chupp grants summary judgment to ECUSA in the Ft. Worth litigation. He essentially punts the thorny issues to the higher courts, by adopting holus bolus ECUSA's ancient view of Texas law in the nineteenth century favoring so-called "hierarchical" churches, and by avoiding any analysis of the case under truly neutral principles of property law applicable to all other Texas landowners.

February - In Pennsylvania's Commonwealth Court, the Anglican Diocese of Pittsburgh loses its appeal of Judge James's nonsensical decision below, due to the appellate judges' studied refusal to let the disturbing facts perturb them in the slightest. One of the Diocese's parishes, St. Philip's in Moon Township, settles separately with the victors by agreeing to stay away from ACNA for five years.

March - The new Episcopal Bishop of San Joaquin, the Rt. Rev. Chester Talton, freely admits in an interview that the object of all the lawsuits recently filed by his predecessor is to get properties to sell so loans from ECUSA to pay for litigation expenses can be repaid. Never mind that the properties in all likelihood will fetch far less than what has to be spent to win them; it's the principle of the thing, don't you see?

April - the Episcopal Diocese of Rio Grande, having evicted the congregation of St. Francis-on-the-Hill (El Paso) from its property, now sues their rector and vestry for all moneys they collected from their parishioners while the earlier litigation was going on. The Diocese also seeks punitive damages against the defendants for their outrageous effrontery in spending the parish pledges for non-Episcopal purposes, such as utilities, church bulletins, soup kitchens, and the like.

May - the California Supreme Court reverses the judgment against St. James, Newport Beach which the Court of Appeal, in an unpublished decision, had given to ECUSA and the Diocese of Los Angeles at their request, because they read the Supreme Court's earlier decision to say that churches which try to leave ECUSA's clutches should not be given even one day in court to plead their case, and deserve to have their property taken from them on the spot. The Supreme Court in effect said: "We were just kidding -- can't you Episcopalians tell the difference between a joke and a legal opinion?"

June - News emerges that when Katharine Jefferts Schori was the Bishop of Nevada, she received a former Catholic monk, an admitted molester of young males, as an Episcopal priest. Of course, she placed him under restrictions meant to ensure that he could not be alone with young men, but apparently she forgot to tell anyone about them, including the rector of the church which hired him to direct its choir.

July - The new Title IV Disciplinary Canons, which were not closely examined or debated until after General Convention approved them, become effective in all church Dioceses except South Carolina, which refuses to recognize them. The Diocese points out numerous ways in which they violate the Church's Constitution -- not least because they confer metropolitical powers upon the Presiding Bishop -- but all the rest of the frogs in the Episcopal soup just lie back, relax, and bask in the steadily increasing warmth that surrounds them.

August - At the request of the Diocese of Pennsylvania, a trial court judge orders the removal of the pastor of the Church of the Good Shepherd in Rosemont, outside of Philadephia. The rector, David Moyer, had in the meantime become a bishop in the Traditional Anglican Communion, and now appears to be headed for the new Roman Catholic ordinariate in America.

September - The Connecticut Supreme Court graces the legal world with another poorly written opinion blindly upholding the Dennis Canon's unilaterally created trust under so-called "neutral principles of law." This time, the victim of such misguided reasoning is Bishop Seabury Church, in Groton, but it may appeal to the U. S. Supreme Court if the churches in Georgia do so also (see December entry, below).

October - The new Disciplinary Board for Bishops (under the new Title IV Canons -- see the entry for July above) makes a big splash, and provokes a Church constitutional crisis, when they inform Bishop Mark Lawrence of South Carolina that they are investigating charges made against him by anonymous dissidents in his Diocese for not being sufficiently submissive to the Presiding Bishop's new regime, and for otherwise "abandoning the communion of [ECUSA]." Bishop Lawrence and his Diocese do not recognize either the Board or the new Title IV Canons under which it is operating. After some initially clumsy fumbles in the public relations department, the Board finally announces that it could not muster a majority in favor of certifying the charges, and the crisis evaporates (for now).

November - On the same day, the Georgia Supreme Court decides two major church property cases. In the first, it awards to the Episcopal Diocese of Georgia the property of Christ Church in Savannah, Georgia's oldest Anglican church, which predates the founding of ECUSA itself. In the second decision, the Court awards the property of Timberridge Presbytery, near Atlanta, to PCUSA. The same Justice -- a prominent member of a large ECUSA parish in Atlanta -- writes the opinions in both cases, without recusing himself from the first one on account of his affiliation. He justifies his upholding of the Dennis Canon against Christ Church by repeatedly citing his tortured decision that rejects Timberridge's attempt to remove itself from the shackles of a similar provision in PCUSA's Book of Order.

December - The Supreme Court of Texas agrees to hear the appeal of the Church of the Good Shepherd in San Angelo from a lower court decision which made mincemeat of "neutral principles of law." This bodes well for Bishop Iker and his Diocese of Fort Worth, which has a similar request for review of Judge Chupp's decision (see January entry above) pending before Texas' highest court. Meanwhile, in Georgia, Timberridge Presbytery announces it will petition the U. S. Supreme Court to review the Georgia Supreme Court's November decision against it (see entry above). There is a possibility that Christ Church in Savannah, whose congregation holds its last service there, will also request review; and that may encourage a third request from Bishop Seabury parish, in Connecticut (see September entry above). Finally, the year closes with an intelligent trial court decision from Illinois which refuses to rule, as a matter of law, that ECUSA is "hierarchical" with respect to its member dioceses.

Happy New Year to one and all! Your Curmudgeon is praying that 2012 will bring good news for all but Jefferts-Schorians on the legal fronts in Fort Worth, San Joaquin and Quincy, and with regard to any petitions filed with the United States Supreme Court.

The Marvel and Mystery of Christmas

2011-12-25T08:45:00.000-08:00

Ach, Herr, du Schöpfer aller Ding

Ach Herr, du Schöpfer aller Ding,

Oh Lord, Creator of us all,

Wie bist du worden so gering,

How art Thou now become so small,

Dass du da liegst auf dürrem Gras,

That there Thou liest on hard straw bed,

Davon ein Rind und Esel ass?

From which both cow and donkey fed?

(Music: Heinrich Schütz, 1585-1672 [SWV 450]; Text: Martin Luther, 1483-1546 [Stanza 9 of Vom Himmel hoch da komm' ich her, 1536]; Performance: Hendricks Chapel Choir, December 1978; Art: Fra Angelico, The Nativity, 1439-1443.)

His Holiness Pope Benedict XVI reminds us of a possible answer to Martin Luther's question:

The medieval theologian William of Saint Thierry once said that God – from the time of Adam – saw that his grandeur provoked resistance in man, that we felt limited in our own being and threatened in our freedom. Therefore God chose a new way. He became a child. He made himself dependent and weak, in need of our love. Now – this God who has become a child says to us – you can no longer fear me, you can only love me.

(H/T: the Rev. Canon Kendall Harmon, Titus19)

Physical Evidence for the Virgin Birth of Jesus

2011-12-20T14:50:00.000-08:00

Note: When I ran this post last year on Christmas Eve, it got buried in the holiday busyness, and so this year I am running it a little earlier, especially in light of Al Mohler's piece (also a re-run for the season) on the theology of the Virgin Birth -- which I heartily commend to you, as well. The stunning discovery related in this article still has not received the wider attention it deserves. As always, the point is not to have science displace faith, but instead to have an informed faith, which the facts known to science, such as they are, do not threaten or disturb. (And as an unexpected dividend, what is related here allows us to become aware of how amazingly well God's revelations to us so long ago withstand the test of time!)

* * *

A little over three years ago I put up this post to discuss Frank Tipler's argument, using available scientific evidence, for the Virgin Birth of Jesus Christ (from chapter VII of his book, The Physics of Christianity). This Christmas, I want to examine in greater detail the evidence he presents -- in particular, the genetic evidence derived from DNA analysis of blood samples taken from the Shroud of Turin and the Sudarium of Oviedo -- in the hopes that someone more familiar with this branch of molecular biology might pick it up, and either comment on it, take it further, or even (if possible) refute it.

[UPDATE 12/25/2010: A word to my readers: I am well aware of the scorn and ridicule that has been heaped upon Frank Tipler and his theories (here is just one such example, in which the venerable but now-deceased Martin Gardner scoffed at Tipler's account without, however, bothering to assess the genetic evidence). But it is far easier to denigrate than to engage. As you read the post that follows, I would ask that you keep the bigger picture in mind: We have two ancient artefacts, hundreds and hundreds of years old (if not thousands), each with its own independent history -- yet each of which has matching AB-type bloodstains, the source of which tradition assigns to the same person, who was unquestionably of the male gender. How does it turn out, after a scientific analysis possible only in the late twentieth century, that the stains on both cloths lack a key genetic identifier for maleness? That is the question I wish responsible people would address.]

First, some background: the Shroud of Turin, of course, is the name given to what traditionally has been considered as the linen burial cloth in which, as the Gospels all report, the women who prepared Jesus for burial wrapped His body. Its provenance and history are greatly in dispute, a dispute which was heightened by a radiocarbon analysis of a portion of the cloth done in 1988, which dated its origin to no earlier than the 13th century. However, evidence since that well-publicized test has accumulated to cast those results into doubt, and to validate the Shroud's origin as genuine (see the details discussed in this earlier post, and read more about the latest research on the Shroud's image at this link).

The Sudarium of Oviedo is the name given to the cloth which tradition assigns as the face cloth placed over Jesus' head when he was taken down from the cross, and which was found in the tomb, rolled up and separate from the other linens, after His resurrection (Jn 20:7). (It is not to be confused with the Veil of Veronica, another relic of the crucifixion, which was originally kept at St. Peter's, but is now at the Abbey of Monoppello, high in the Apennines.) The Sudarium's history is entirely different from that of the Shroud's. Its location in Oviedo has been documented since the eighth century; it was in Toledo for about eighty years before that.

Aged, brown blood stains have been described on both cloths for centuries, but actually documented to be human blood (type AB) only with the advanced analysis techniques of the twentieth century. And a recent, in-depth study of the Sudarium done in 1998 (the first ever performed, in contrast to the numerous advanced tests on the Shroud) confirms that the blood stains on each cloth match in placement, blood type, and pattern of spread, along with numerous other correspondences (such as pollen indigenous to Jerusalem) between the two cloths. If the two cloths at one time covered the head, the face and (for the Shroud) the body of the same person, then obviously the 1988 radiocarbon dating of the Shroud was thrown off due to some error in the sampling process.

If a match between the blood stains could be established by forensic analysis of their surviving DNA, then one could feel confident (a) of the Shroud's having a much greater age, and (b) of the absence of fraud or artifice in the creation of the stains and images on each cloth. And this is where Frank Tipler's book referenced above proved most interesting. For in the course of his investigations, he learned that a highly qualified team of researchers from Genoa, Italy -- including two molecular biologists who had invented the standard test for sex determination, had performed DNA analysis on the stains of both the Shroud and the Sudarium in 1995.

However, their results had been published not in a standard scientific journal, available easily to all, but only in an obscure journal in Italian devoted entirely to studies about the Shroud. As Prof. Tipler noted:

Furthermore, only the raw data were published. That is, the Genoa team published black-and-white Xerox copies of the computer output of the DNA analyzer. This is never, never done. Always, the data are presented in a neat table or figure, and they are accompanied by a discussion of their significance. The Genoa team made no effort to interpret their data. . . .

Prof. Tipler, in contrast, had no reluctance in interpreting the data -- that is, once it was arranged in standard tabular form, according to the number of base pairs in the amplicons on the agarose gel which resulted from a polymerase chain reaction (PCR) involving segments of the sample DNA. Now, let me provide a little more background, so those unfamiliar with the procedures of forensic DNA analysis can make sense of that last sentence.

The technique of PCR was developed in 1983 by Kary Mullis, whose TED talk I featured earlier. The idea simply popped into his head one night as he was driving to his vacation cabin in northern California; he tried it, and the results surpassed all his expectations. The technique has been the foundation stone of DNA analysis ever since. Essentially, what it does, given a very small sample of DNA to begin with, is to make millions or even billions of copies of the sample in a "chain reaction" taking about three hours, so that there is enough ending material to analyze with standard laboratory techniques, including chromatography and gel electrophoresis. (Here is an excellent illustrated guide to the whole process.)

The way it works is by first heating the DNA samples to break the two strands of the double helix apart (this is called "DNA denaturation", or "DNA melting"). Once the strands have been separated, they are cooled down and put into a mix of DNA primers (short strands of DNA chosen for their complementarity with the sample being tested) and DNA polymerase -- a magic enzyme which, given a primer, goes to work and replicates the strands of the samples exactly. By successive heatings and coolings, more and more copies of the sample are created, separated into single strands, cooled, and then duplicated again, and again, and again, with the number of DNA copies roughly doubling each time -- hence the "chain reaction."

In running a PCR analysis on their samples from the Shroud and the Sudarion, the Italian researchers included a set of highly particular DNA primers generated from the gene for amelogenin, which plays a role in the building of tooth enamel. This gene appears on both the X- and Y-chromosomes in humans, but in distinctive forms: the allele (gene variant) on the X-chromosome is six base-pairs shorter than the allele on the Y-chromosome. ("Base pairs" are the pairings between the four fundamental nucleotides, or building blocks, of DNA.) And this very slight difference can be used to determine whether any given DNA sample comes from a male or a female, as a result. (Here is a link to a diagram of the genetic code for amelogenin, which shows precisely where the missing base pairs on the X-version differ from the Y-version; note that there are other slight differences between their codes, as well.)

Because of the difference in their respective lengths, the two alleles will show up at different places when the analysis is run on the results of the PCR amplifications (these are the amplicons I mentioned earlier) of the original sample. (In order to understand fully how the analysis produces its results, I highly recommend that those who have the time run through this interactive simulation of the process of gel electrophoresis in the lab.)

The results from female DNA will have only one band of the shorter base-pair length, while the results from male DNA will have two bands, one of the shorter, X-chromosome length, and the other from the longer, Y-chromosome variant of amelogenin. This was the DNA test for gender which was developed by two expert members of the 1995 Italian research team, as mentioned earlier.

The Italian team knew what they were doing. They took steps to eliminate "DNA noise" from contamination of the samples which might have built up from handling of the cloths by various people over the years. Even so, they apparently could not trust the results they ended up with, after all their careful analysis: the genetic signature of both samples, the one from the Shroud, the other from the Sudarium, showed only one band -- for the shorter (106 base-pairs), X-chromosome variant of amelogenin. (Depending on the length of the gene segment used as a primer for the PCR analysis, the X-allele of amelogenin will have either 106, or 212, base pairs, or "bp" -- see the diagram again for a depiction of the different segments used as primers in the test. The extra six base pairs for the Y-allele of amelogenin results in either 112 bp or 224 bp, depending again on the primer that is used for the test.)

With the foregoing as background, we are now ready to appreciate the results of the analysis by the Italian team, as reproduced by Professor Tipler in his book. Here are the results in tabular form, as he arranged them -- according to increasing base-pair length (click on the image to enlarge):

Professor Tipler does not elaborate on this tabular layout, and I have had to deduce, from my earlier experiences with forensic DNA analysis in court, just what the individual columns show. (If I err in any respect in what follows, I trust a knowledgeable commentator will correct me.) The left-hand column shows the index-mark, varying by time of retention, where the band in question appears in the results; in general, a higher index number means a longer retention time, because the segments with the greatest number of base pairs move slowest through the gel. The second column shows the average number of base pairs in that particular band, to a specified tolerance determined by the analysis software. The third column shows the height (intensity) of the band in question, which is proportionate to the amount of that particular allele in the amplified test sample; the total area of the band given in the fourth column also varies proportionately with the intensity. Finally, the number in the fifth column relates to the particular scan of the data run by the computer analyzer.

It is the numbers in the second column with which we are most interested. Both the analysis of the Shroud sample and of the Sudarium sample show results within the range expected for the 106 bp allele of amelogenin: 107.28 for the Shroud, and 105.27 for the Sudarium. (The variation of 1 in either direction from the specific bp number is due to a phenomenon called stutter which can occur during the PCR process -- see the article linked earlier for a more detailed explanation.) But there are no corresponding bands appearing in the 112 bp (+/- 1) range of the data.

This would ordinarily be the genetic signature of a female, with two X-chromosomes, and undoubtedly accounts in part for the reluctance of the Italian researchers to explain or comment on their results. With all of the precautions they took against contamination of the blood samples, how could the Y-allele of amelogenin have completely vanished from both samples, independently, over the years?

As Professor Tipler is at pains to point out, however, the presence of a single X-allele band, and the absence of any Y-allele band, is also consistent with another conclusion: that the person whose blood stained both cloths was that most rare of humans, an XX-male:

I propose that Jesus was a special type of XX male, a type that is quite rare in humans but extensively studied.¹⁷ Approximately 1 out of every 20,000 human males is an XX male. Such males are normal in behavior and intelligence but have smaller teeth, shorter stature, and smaller testes than normal males. They are usually identified as XX males because they cannot have children and ask doctors to cure the infertility. Normal males are XY, but there are only twenty-eight genes on the Y chromosome, as opposed to thousands on the X chromosome. Of these twenty-eight genes, fifteen are unique to the Y chromosome and thirteen have counterparts on the X chromosome.¹⁸ The genes with counterparts on both the X and the Y chromosomes are called homologous genes. An XX male results when a single key gene for maleness on the Y chromosome (the SRY gene) is inserted into an X chromosome. One possibility is that all (or at least many) of the Y chromosome genes were inserted into one of Mary's X chromosomes and that, in her, one of the standard mechanisms used to tum off genes was active on these inserted Y genes. (There is an RNA process that can tum off an entire X chromosome. This is the most elegant turnoff mechanism.) Jesus would then have resulted when one of Mary's egg cells started to divide before it became haploid and with the Y genes activated (and, of course, with the extra X genes deactivated).
_______________
¹⁷ Chapelle, Albert de la. 1981. "The Etiology of Maleness in XX Men." Human Genetics 58: 105-116; Guellean, Georges. et al. 1984. "Human XX Males with Y Single-Copy DNA Fragments." Nature 307: 172-73; Page, David C., et al. 1985. "Chromosome-Specific DNA in Related Human XX Males." Nature 315: 224-26; Andersson. Mea. et al. 1986. "Chromosome Y-Specific DNA Is Transferred to the Short Arm of the X Chromosome in Human XX Males." Science 233:786-88; Petit, Christine, et al. 1987. "An Abnormal Terminal X -Y Interchange Accounts for Most but Not All Cases of Human XX Maleness." Cell 49:595-602; Chapelle, Albert de la, et al. 1988. "Invited Editorial: The Complicated Issue of Human Sex Determination." American Journal of Human Genetics 43:1-3.

¹⁸ Jegalian, Karin, and Bruce T. Lahn. 2001. "Why the Y Is So Weird." Scientific American, February, 56-61.

Because the full-body image we have from the shroud does not match the parameter of the usual type of XX-male (the 1-in-20,000 example mentioned in the text, in which only the SRY gene is inserted in the X-chromosome, with a resulting smaller stature than other males), Prof. Tipler believes that Jesus may have been an even rarer exemplar -- indeed, a one-time-only species -- of XX-maleness, in which most, if not all, of the fifteen Y-specific genes were inserted into the X-chromosome:

Such a virgin birth would be improbable. If the measured probability that a single Y gene is inserted into an X chromosome is 1 in 20,000, then the probability that all Y genes are inserted into an X chromosome is 1/20,000 raised to the 28th power, the power corresponding to the number of Y genes. (Assuming that the insertion of each Y gene has equal probability and that these insertions are independent.) There have been only about 100 billion humans born since behaviorally modern Homo sapiens evolved, between 55,000 and 80,000 years ago. . . . Thus, the virgin birth of such an XX male would be unique in human history even if there were only two such Y genes inserted into an X chromosome. (I assume an upper bound to the rate of virgin birth is 1/300. Then the probability of a virgin birth of a male with 2 Y genes is 1/[300][20,000][20,000] = 1/120 billion.)

How could it be determined if Jesus were in fact such a unique individual? Unfortunately, the tests run by the Italians in 1993 did not search for any Y-genes other than the Y-allele for amelogenin. (Their black-and-white reproduction of their computer data also unfortunately left out the information from the different dye colorings, which would have enabled one to determine just how many different alleles were present, and the degree to which any contamination might have occurred. As it is, their data from just the Shroud show fourteen different alleles present in addition to that from the X-variant of amelogenin, where one would expect at most eight from the four other specific genes for which they tested. Without more data, it is simply not possible to account for the extra six which they show.) Prof. Tipler recommends that more modern tests be conducted on the stains on the two cloths, which could help to determine whether the DNA contains more than just one Y-specific gene, or only one, or two, and could also help to pinpoint any possible sources of contamination. Such tests could moreover dramatically enhance the likelihood that the blood on the separate cloths is from one and the same genetic source. (As it is, the data shows they share three specific alleles already.)

What is one to conclude from all of this? (As I say, I hope that those who are more expert in these subjects will be stimulated to comment, or to write about it on their own blogs.) The point, I emphasize again, is not that science can offer any absolute "proof" or "disproof" of the Virgin Birth. (How God works His miracles will never be fully comprehensible to mortal understanding.) Instead, what fascinates in this investigation of artefacts which are in all likelihood at least two thousand years old is that they hold up so remarkably well to ever closer scrutiny and more extensive examination. There is plenty of room for skeptics to disagree, and for believers to find encouragement. With an open and contrite spirit, not being stubborn or willfully contrary, each individual must form his or her own conclusions, based on what is at hand at the moment. Such is the essence of the grace which God bestows upon us.

A Merry Christmas to all!

ECUSA Denied Summary Judgment in Quincy: Court Finds a Triable Dispute Whether Church Is in Fact "Hierarchical"

2011-12-17T00:01:00.000-08:00

In a ruling released yesterday afternoon by the Eighth Judicial Circuit Court in Adams County, Illinois, Judge Thomas J. Ortbal denied motions for summary judgment brought by ECUSA and its rump diocese of Quincy, which had intervened to join in ECUSA's counterclaim against certain clergy and laity who held property and funds in trust for the (now missionary) Diocese of Quincy in ACNA.

To my knowledge, this is the first summary judgment motion lost by ECUSA, or by any of its rump dioceses, in their attempts to seize the property of the four dioceses which have thus far realigned with the Anglican Province of the Southern Cone and with the Anglican Church in North America ("ACNA").

It is thus very much worth analyzing in detail. As explained at this background page, the realigning Diocese of Quincy had originally filed suit against ECUSA in Adams County Circuit Court when ECUSA, following its by now standard tactics, managed to persuade the Diocese's bank that it should freeze all the funds which the Diocese had on deposit there. This put a crimp in diocesan operations, and has forced the realigning Diocese to relegate itself to missionary status in ACNA. (Meanwhile, the rump diocese has fared no better, and is dependent on continuing subsidies voted by ECUSA's Executive Council to survive, so as to be able to participate in ECUSA's lawsuit. Talk about the hoary offense of champerty!)

The Episcopal Church counterclaimed against the Very Rev. Canon Edward A. Den Blaauwen of Christ Church Cathedral in Moline, and others serving as trustees of the Diocese's funds and property. It alleged that they were wrongfully withholding those funds and property from ECUSA and what it recognized as its "legitimate" (rump) diocese, i.e., the small minority who chose to remain affiliated with ECUSA. To satisfy ECUSA's pattern in these cases, the rump diocese then joined the litigation as a counterclaimant together with ECUSA against the diocesan trustees, and both together then filed motions for summary judgment on their respective counterclaims. They also filed for summary judgment against the original complaint filed by the ACNA Diocese.

The court's job on a motion for summary judgment is to decide whether or not there are any important facts which are in dispute. If there are none, then the court is free to apply the applicable law to the undisputed facts, and deliver a judgment in the case without the necessity of a trial. But if the court finds even one such "material" disputed fact, then it must deny the summary judgment, and allow the disputed fact(s) to go before a jury (or, in some instances, the judge sitting without a jury) to decide which version of the disputed facts is supported by the weight ("preponderance") of the evidence.

Thus the court on a motion for summary judgment cannot evaluate, or weigh, the credibility of the evidence offered by each side. That is the job of the jury (or judge sitting alone) at the trial, if there is one. Instead, the judge looks at what are claimed to be the "undisputed material facts", takes the evidence in support for each such fact at face value, and determines whether or not the opposing side has offered evidence which controverts the moving party's evidence, i.e., disputes it, and so turns that particular fact from a claimed "undisputed" one into a "disputed material fact."

The chief fact at issue on ECUSA's and its rump diocese's motions was whether or not ECUSA is a "hierarchical" church, i.e., a church in which, as the United States Supreme Court expressed it in its 1872 decision in Watson v. Jones, 80 U.S. (13 Wall.) 679, 722-723 (with italics added):

the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.

Under the jurisprudence developed by the courts following Watson v. Jones in the ensuing 130 years, so many consequences favorable to ECUSA itself follow from its fitting within this described paradigm that the Church has spent literally millions and millions of dollars (including over $700,000 in "expert" fees paid to one such witness alone) trying to prove this single characteristic, in court after court. It is in the cases against realigning parishes that ECUSA has had each of its successes. (Shortly I will put up a post bringing current all of the litigation for which ECUSA has been responsible, or involved, for the last twelve years.)

Realigning dioceses, however, are a different kettle of fish. While many parishes have adopted articles or bylaws which expressly state that they are subordinate to the national and diocesan constitutions and canons, only a minority of dioceses have done so. ("Acceding" to the national constitution and canons does not mean subordinating oneself to them, any more than the United States of America, by acceding to Charter of the United Nations, places itself under the absolute governance of that body.)

The reason is simple: dioceses do not have to choose subordination to the national Church unless they voluntarily want to be subordinate. By law, they join the Church as equal members, and unless they have expressly surrendered their autonomy in so joining, they maintain that autonomy within the wider organization. The only requirement in ECUSA's Constitution (the version since 1982, but not any earlier versions) is that dioceses express their "unqualified accession" to it. But as just noted, "accession" (expressing consent), even if not qualified by any reservations withholding consent to certain provisions, is by no means the legal equivalent of "subordination" (voluntarily agreeing to be inferior). In ECUSA's fantasy world, however, "accession" is no different from "submission in perpetuity."

In the Quincy litigation, therefore, ECUSA and its rump diocese put on their best show, initially with affidavits from their most highly paid expert, Prof. R. Bruce Mullin, contending that ECUSA was "hierarchical as a matter of law" -- i.e., according to Prof. Mullin, there could be no honest factual dispute as to whether ECUSA was "hierarchical" in respect to its member dioceses. Subsequently, however, instead of relying solely upon their paid expert, ECUSA changed tactics and provided the judge with all the citations to the many cases involving departing parishes in which ECUSA had purportedly been "found" to be "hierarchical as a matter of law."

And that show went down in flames in Adams County, Illinois, thanks in no small part to the skilled efforts of the Diocese's counsel, as well as to the contributions by Prof. Jeremy Bonner of Pittsburgh, retained by the ACNA Diocese as an expert to counter Professor Mullin. In his ruling yesterday, Judge Ortbal summarized the competing testimonies as follows:

TEC and TEC Diocese argue that as a matter of law the court must find that TEC is conclusively a hierarchical institution and that Diocese of Quincy is subordinate and submits to its highest ecclesiastical authority. It further argues that the issues presented in this lawsuit are solely related to the polity and governance of the subordinate institutions, namely the Diocese of Quincy, which under the authorities and cases relied upon prohibit this court from considering.

Plaintiffs/Counterdefendants [the realigning parties] respond that there are disputed issues of fact regarding the hierarchical structure of TEC and in particular the relationship between the national church and the dioceses. They further contend that the real dispute does not involve ecclesiastical questions of doctrine or polity, but rather control of the property of the not-for-profit corporate entities (the Plaintiffs).

The judge then notes how reasonable minds could draw opposite conclusions from ECUSA's preferred version of the facts:

The documentary evidence relied upon by TEC and TEC Diocese is certainly supportive of their position. However, confirmation and proof of their construction and interpretation of the church Constitution and canons and its supremacy necessarily involves inferences to be drawn from the evidence. The inferences they ask the court to draw are reasonable.

Nevertheless, Plaintiffs/counterdefendants [ACNA parties], contend that contrary inferences can reasonably be drawn from the same undisputed documents and facts, as detailed in their briefs and oral argument. Viewing the evidence as it must, in the light most favorable to the [ACNA parties], the court finds that reasonable persons could draw different inferences from the undisputed facts. This is further the case considering, that to varying degrees, all of the parties have introduced and rely on historical documents and conduct between the national or general church and the diocese.

Once he concluded that reasonable minds could differ as to the inferences to be drawn from ECUSA's so-called "undisputed facts", the motions were lost for ECUSA and its rump diocese. For that is the test of the need for a jury trial: if reasonable minds could differ over the facts, then let each side present its best case to the jury, and allow the jury to resolve the differing versions, under appropriate instructions from the court. "Summary judgment" -- bypassing the jury in a case -- is appropriate only when there would be no point to convening a jury, because their "reasonable minds" (as the law supposes) could draw only one set of conclusions from the undisputed facts.

Next, Judge Ortbal disposed of ECUSA's somewhat arrogant attempt to dismiss or minimize the significance of the opposition's evidence, by showing how that argument should best be made to a jury, and not on summary judgment, where there can be no "weighing" of the evidence (I have added the closing italics for emphasis):

[ACNA parties] further argue that the affidavits submitted in their response raise issues of fact on this record. TEC and TEC Diocese dismissively counter that their affidavits represent merely the opinion of one man or the opinions of a minority, dissenting faction of church Bishops. No motions were filed directed to the admission of the affidavits. Essentially TEC and TEC Diocese ask the court to discount or give this evidence no weight in ruling on their motion. Weighing of evidence is generally improper in a summary judgment proceeding. (See, In re Estate of Alfaro (1998), 301 Ill.App.3d 500; Schulenburg v. Rexnord Inc. (1993), 254 Ill.App.3d 445). Without weighing this evidence, they do raise genuine issues of material fact as to the precise nature of the relationship between the diocese and the general or national church and hence the validity of the actions which are at the heart of this dispute.

Judge Ortbal then turned to the many cases from other jurisdictions cited by ECUSA to "prove" it was "hierarchical as a matter of law":

TEC and TEC's Diocese cite numerous cases, involving similar church, property disputes, which they assert mandate acceptance of their position in this case and granting of their motion for summary judgment. The court has reviewed the cases, but does not find it is bound by them. Further it finds the cases distinguishable on different levels and does not find them conclusively persuasive as to the record before it. For example, the vast majority of the cases involve disputes between local parishes and dioceses and/or the national church. These cases appear very fact driven and many involved concessions or stipulations as to matters which are disputed on this record. Many involve specific religious corporation and/or other state statutes not applicable in the present case.

Thus unlike the highest (and best-paid) justices in New York, Connecticut, New Jersey, Pennsylvania, Georgia, Colorado and California, a lower court judge in Illinois has no difficulty in piercing through ECUSA's film-flam and hyperbole, and actually reading through those many cases to see how they are based on different facts, and different statutes, from those involved in the case at bar. Too many justices (and judges, too, of lower courts) are easily swayed by a "parade of precedent", which presents a hallucinatory judicial bandwagon onto which they can metaphysically jump, and then take a sort of self-induced comfort from the fact that there are so many other justices and judges who are apparently in their company. This intellectual copout represents an abdication of the judicial function. It leads to all kinds of bad law, which is difficult to change after the rubber stamps have become permanent, published cases in the law books.

But Judge Ortbal demonstrates that he is a true judge of the law, able to see through ECUSA's enticements and parade of precedents, and to apply what Illinois law there is to this particular set of facts, following "neutral principles" (my italics are again added for emphasis):

Finally, even if ultimately it is determined that TEC is hierarchical and the Diocese of Quincy a subordinate, dependent constituency and whose leadership is an ecclesiastical issue to which this court must defer, that would not entirely resolve the dispute. The circumstance of the hierarchical structure of government of a church does not preclude a civil court decision respecting a property dispute even under Watson v. Jones (1872), 80 U.S.679, 20 L.Ed. 666, provided the decision can be made without intrusion into the ecclesiastical domain. (York v. First Presbyterian Church of Anna (1984), 130 Ill.App.3d 611).

The court finds that the "neutral principles of law" standard sanctioned by Jones v. Wolf (1979), 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775, has been adopted in Illinois and is applicable to the present case. (York v. First Presbyterian Church of Anna (1984), 130 Ill.App.3d 611; Aglikin v. Kovacheff (1987), 163 Ill.App.3d 426). TEC and TEC Diocese would have the court end the inquiry regarding this dispute by deferring to the ecclesiastical issue of the determination of the leadership of the diocese (assuming its subordinate status to the hierarchical General Convention). However, as in York, that would not necessarily resolve the question of whether the property, held by the Diocese and the Trustees in this case, was subject to a clear right to denominational appropriation by the national church. That appears to the court to be the very heart of the disputed factual issues presented by this record as described above, namely, who as between the competing parties is entitled to control and possession of the assets.

For the foregoing reasons summary judgment is inappropriate at this stage and on this record and is, therefore, denied.

Well done, Judge Ortbal, well done. Thank you for sticking to the law of summary judgments, and for not jumping on to ECUSA's phony bandwagon.

[UPDATE 12/17/2011: I am informed by hearsay that Judge Ortbal also awarded sanctions against ECUSA and in favor of the ACNA parties, in the form of reimbursement for attorneys' fees wasted in opposing the former's legal papers before they were, after several attempts, put into a proper form of which the court could take legal cognizance (and after they had run up the ACNA parties' legal costs in order to oppose Prof. Mullin, whose expert support they then decided to jettison in their final filings with the court). If this turns out to be correct, I shall report on the details here just as soon as I have confirming facts at hand.]

Texas Supreme Court to Hear San Angelo Case

2011-12-16T08:31:00.000-08:00

In an announcement released this morning, the Supreme Court of Texas has granted the petition for review filed by the Church of the Good Shepherd, San Angelo, as a result of its loss in the Court of Appeal to the Diocese of Northwest Texas. (I discussed that opinion in this earlier post; the page summarizing the litigation is here.) Oral argument is set for February 29, 2012 at Texas A & M University, in Laredo, beginning at 9 A.M.

This is an important milestone for the law of church property in Texas. The last time the Supreme Court decided such a case was in 1909; the San Angelo case will provide an ideal vehicle with which to hold that Texas courts must follow and apply "neutral principles of law" in such cases. (One reason for granting review was that the Court of Appeal had left it up to the lower courts whether to apply neutral principles or not, and remain with the old "deference" standard of Watson v. Jones. For more explanation of the background here, read this post, and then this one.)

Moreover, the grant of review by the Texas Supreme Court has important implications for the Fort Worth case, which the Court is still holding on its docket. (Bishop Iker and his diocese requested that the Supreme Court accept direct review of the Tarrant County District Court's summary judgment, without going first through the Court of Appeal.) Since the Supreme Court has not yet signaled what it will do in the Fort Worth case, it could well be that it plans to decide the San Angelo case, and then, if how that decision comes out gives rise to any principles which could be dispositive, it could either decide the Fort Worth petition summarily, or refer it to the Court of Appeal with directions to follow the same principles. Or it could also set the Fort Worth case for full briefing and oral argument.

In any event, the fact that the San Angelo case will proceed to a final and authoritative decision is cheerful news for Bishop Iker and his diocese.

The Lesson We Never Seem to Learn

2011-12-15T01:28:00.000-08:00

A good part of our current economic doldrums stems from the lesson that we seem never able to learn, until it is too late. And then, having ruefully learned the lesson at great cost, each generation fails to pass it on to the next, which is then doomed to have to learn it at great cost all over again.

This lesson is not arcane, or abstruse, or difficult to grasp in any way. In fact, I can state it in just nine words:

The more government grows, the worse the economy becomes.

The latest discovery of this truth is announced in a wide-ranging study of 108 countries over the years 1970-2008 conducted by the very geniuses who brought to you the most humongous central government bureaucracy the world has seen to date: the Europeans ( in particular, the staff of the European Central Bank, in Frankfurt, Germany). To save you the trouble of plowing through all their mathematical jargon, here is a choice excerpt from the report's conclusion:

This paper adds to the literature in providing evidence on the issue of whether “too much” government is good or bad for economic progress and macroeconomic performance, particularly when associated with differentiated levels of (underlying) institutional quality and alternative political regimes. . . .

Our results allow us to draw several conclusions regarding the effects on economic growth of the size of the government: i) there is a significant negative effect of the size of government on growth . . . iii) government consumption is consistently detrimental to output growth irrespective of the country sample considered (OECD, emerging and developing countries) . . . .

One does not need all the fancy technical jargon and applied mathematics to understand why the Eurocrats found what they found. Common sense tells us that because government produces no economic goods on its own, but instead derives its ability to function entirely by pulling money from the rest of the country's economy, there has to be a limit on its size for that economy still to be able to grow while supporting the government.

Too little government, of course, results in anarchy and the law of "might makes right" -- not a conducive atmosphere for economic investment and growth. Just as certainly, however, too much government diverts too many resources from the productive economy, and so stifles growth. This relationship between the level of government and the corresponding level of economic activity is expressed in what is called the Rahn curve.

As I say, this is not a difficult lesson to grasp. So why do we have to keep on learning it again and again, over and over, with each new generation? Our grandparents learned it under the Presidents from Harding to Franklin D. Roosevelt; our parents learned it under the Presidents from Eisenhower to Nixon, and now we are learning it under the Presidents from Reagan to Obama.

The cycle starts when a President takes office who reduces government spending and/or cuts taxes from what has gone before. The economy springs to life, and the country enjoys prosperity. But government also thrives on prosperity, and politicians cannot keep from using the increased revenues to institute new social and economic programs, which soon burgeon into more and more government. This continues until the sheer size of government begins to take its toll on the economy, which fades into a recession, and eventually, if the destructive growth of government is not halted, a depression.

In a depression, the government allocates most of the resources, because there is no investment due to the uncertain future, and no savings, since there are few jobs and everyone needs cash. By stepping in to provide handouts and public (non-productive) jobs, government actually hinders the functioning of the markets, and distorts economic reality. It also destroys individual incentive, since who needs to find work when one can simply cash an unemployment check instead?

The modern American welfare state came into full flower with the so-called "New Deal." But it is a myth to think that the welfare state originated with Franklin D. Roosevelt -- it actually started in Europe, in Bismarck's Germany, before it came to America via President Woodrow Wilson and his energetic young social engineer, by the name of Herbert Hoover. The latter learned how to organize massive deliveries of food and essentials, first to war victims, then to Belgians, Central Europeans, and Bolsheviks. At first the relief was private and humanitarian, but Wilson appointed Hoover the head of the U. S. Food Administration, and the bureaucratization of welfare soon followed.

Later, during his own term as President, Hoover tried to employ the same massive means to alleviate the sufferings of the jobless, at the outset of the Great Depression. FDR simply took up Hoover's policies where the latter left off. Take a few minutes to watch the following video, which lays out the actual statistics -- and please pay special attention to the numbers during the administration of President Harding (1921-1923), who succeeded President Wilson, toward the end:

In the video, there is a quote from FDR's Secretary of the Treasury, Henry Morgenthau, which could just as easily today have come from Secretary Geithner, or earlier from Secretary Paulsen:

We have tried spending money. We are spending more than we have ever spent before and it does not work. . . . We have never made good on our promises [on employment]. . . I say after eight years of this Administration we have just as much unemployment as when we started . . . and an enormous debt to boot!

The difficulty is that as the cycle repeats itself in each new generation, the welfare state becomes larger with each iteration, and becomes harder and harder to eliminate, even in times of prosperity. This phenomenon is partly tied to our ever-increasing population with each new generation; there are more and more people who become welfare state beneficiaries (or, in less charitable language, who "go on the dole").

FDR's Social Security is still with us, and in the seventy-odd years since its inauguration has mutated from a system in which there was one beneficiary for every 160 workers (a ratio of 159.4 to 1, in 1940) to one in which the ratio has now, for the first time ever, gone to less than three to one in 2010. The decreasing ratio, of course, is unsustainable -- because the percentage of pay withheld from each current worker is inadequate, even at a three-to-one ratio, to provide benefits for just one retiree. As the current Baby Boomer generation reaches retirement age, the ratio will drop even more. The system will eventually face bankruptcy unless people are required to work longer before receiving benefits, or workers pay still more in payroll taxes, or have their retirement benefits reduced, or some combination of all three is put into place.

Even if the system can be "fixed" before it goes bankrupt, however, one has to ask: what is the point of a scheme which forces current workers to support retired ones, in the expectation that when they retire, the people working then will support them? What does such a scheme do to individual incentives to save for retirement? A welfare state simply gets people hooked on more and more welfare, as is graphically illustrated by these two drawings (click each to enlarge):

As economist Robert J. Samuelson points out, the welfare state as a phenomenon of the late nineteenth and the full twentieth century is now facing its inevitable end, due to the impossibility of a government's supporting many more people than those who pay the taxes that support the government. He writes:

To flourish, the welfare state requires favorable economics and demographics: rapid economic growth to pay for social benefits; and young populations to support the old. Both economics and demographics have moved adversely. . . .

The modern welfare state has reached a historic reckoning. As a political institution, it hasn't adapted to change. Politics and economics are at loggerheads. Vast populations in Europe and America expect promised benefits and, understandably, resent any hint that they will be cut. Elected politicians respond accordingly.

But the resulting inertia poses an economic threat, one already realized in Europe. As deficits or taxes rise, the risk is that economic instability will increase, growth will fall, or both. Paying promised benefits becomes harder. Or austerity becomes unavoidable.

The paradox is that the welfare state, designed to improve security and dampen social conflict, now looms as an engine for insecurity, conflict and disappointment.

As I said at the outset, this is not rocket science, but common sense. It is also something that was once ingrained in our national character, when citizens instinctively saw something wrong with government taking on the role of rescuer of last resort. Indeed, as long ago as the 1880's, President Grover Cleveland summed up the national resistance to government-provided aid by pointing out that it was a slippery slope, and difficult to place limits upon once the practice became routine. Vetoing a Congressional bill to provide financial relief to drought-stricken Texas farmers, he asked the simple rhetorical question: "If the Government supports the people, who will support the Government?"

Lately, it has become common to point out the sins of conservative presidents, such as Ronald Reagan and George W. Bush, whose administrations saw huge increases in government debt and spending even as they lowered tax rates to generate more economic activity in the private sector. This was the welfare state continuing its incessant encroachment on individual incentives, with the public sector expanding steadily along with the economy. The recipe worked for a time, during prosperity; but in a recession or depression, the choke of the welfare state becomes a veritable death grip. And under President Obama, look how rapidly the numbers have deteriorated.

The cure for this cancer is not a mystery. After the Wilson administration ended in paralysis and failure, as noted in the video above (with the Gross National Product plunging 24%, from $91.5 billion in 1920 to $69.6 billion in 1921), a President with a solid middle-class upbringing, and small-town values (but unfortunately all too trusting of his friends and allies), turned the economy around by the simple tack of reducing government's slice of the economy. Warren Harding cut federal spending from $6.3 billion in 1920 to $3.2 billion by 1922. Taxes were reduced, and the number of unemployed was cut by more than half.

But that was just the beginning. On Harding's sudden death from a heart attack in 1923, Calvin Coolidge succeeded him, and his policies led to the "roaring Twenties." His budget going out of office was smaller than Harding's, even though the country had grown considerably in the meantime. He cut tax rates five times, and his eye on spending was just as sharp with his own White House budget as it was with the country's. The economy boomed, the stock market soared -- and then came Black Tuesday in October 1929.

The stock market crash, however, was not Coolidge's fault. If any fault is to be assigned to the government, it would have to be placed upon the newly created Federal Reserve Bank, which failed to curb leveraged speculation as the market boomed, and then withheld any cash infusion to the banking system after the crash itself. Eventually this led to widespread failures, and an ensuing panic as people tried to pull all their money out of banks at once. By then FDR was in charge, and he unfortunately did not have Coolidge's sense of thrift and limited government.

The rest is history. We are once more at a great crossroads. Whether this nation can wean itself from the welfare spigot of Franklin Roosevelt, and revert to the sensible values of Warren Harding and Calvin Coolidge, is the fundamental question of the day. The future of our own grandchildren will depend on the choice we make in 2012.

Sophistry in the Guise of Punditry

2011-12-14T09:45:00.000-08:00

In the course of complaining about his old bugaboo, the former Archbishop of Nigeria, Jim Naughton lets fly an assertion that discloses all one needs to know about why the Church's activists will never be able to meet on common ground with its traditionalists (bold emphasis is mine):

Old bigots never die . . .

. . . they just keep running their mouths.

It will come as a shock to no one that Archbishop Peter Akinola, retired primate of the Church of Nigeria, supports a bill currently under consideration in that country that would criminalize same-sex marriage . . .

It can't be said often enough, that most of the members of the Anglican Church in North America left the Episcopal Church because they could not abide its teachings on same-sex relationships, and chose to join a movement led by Akinola, whose opinions on such matters were apparently more to their liking. Anti-gay bigotry is deep in ACNA's bones, and no amount of obfuscation from its apologists who would have you believe that their dispute with the Episcopal Church is all about scriptural interpretation can camouflage that fact. "Scriptural authority" is to the debate over sexuality as "states' rights" was to the debate over slavery.

Oh my, oh my. I could not at first believe my eyes, but yes -- that is what Jim Naughton wrote, and published for all to read on the Internet. "'Scriptural authority' is to the debate over sexuality as 'states' rights' was to the debate over slavery."

Here are some of the most obvious points in rebuttal -- which fairly cry out for expression -- but which merely scratch the surface of all that could -- and should -- be said in response to such monumental ignorance.

"States' rights", Mr. Naughton, had nothing to do with the issue of whether this country should go forward upon an economic foundation where some men were legally permitted to enslave others.
The States of these United States had no more political power to authorize slavery within their borders (as opposed to absorbing it without question, thereby "grandfathering" it into their political structure) than Egypt had to keep the Jews in bondage.
Your statement first and foremost exhibits a profound confusion about what is a "right", which properly speaking, in a legal sense, entails a corresponding obligation upon the liberty of others to do as they like -- a "duty" on their part, if you will, to "recognize" my "right."
For example, you have a legal duty not to hinder or obstruct my right to vote. And the several States have an obligation to protect my right to vote against your attempt to hinder or obstruct it. That is what it means to have a "right."
But to authorize the legal ownership of one human being by another is to create no legal "right" to own slaves at all, since it is meaningless, under our system of government, to talk of "ownership" of any fellow being made in God's image. The laws about slaves were inherited from the colonial governments, and were carried into Southern society after the Revolution. Eventually, both the British and American governments came to realize that slavery could never be legitimized by any political authority.
The "States' rights" of which you speak, Mr. Naughton, were claimed by those who denied the right of the national government to interfere in local affairs, regardless of their nature.
First and foremost, the concept of "States' rights" had to do with the right of States to secede from the Union, in order to prevent -- if that was the only way possible -- the national government from "interfering" in their local affairs.
Secondarily, "States' rights" was a rallying cry by which to resist the authority of Congress to pass legislation binding upon the States. Certain southern States, led by John C. Calhoun, claimed the power to "nullify" acts of Congress within their borders, notwithstanding the Supremacy Clause in the Constitution.
"Ownership" of human beings by other human beings, however, was never a "right" that could be "reserved" to the people under the Tenth Amendment, because its very assertion negated another right indisputably reserved to the people, namely the right to "life, liberty, and the pursuit of happiness."
Those rights were not, as the Declaration of Independence acknowledged, "reserved to the people" by the people themselves, in forming a national government, but were rather pre-existing and unalienable rights conferred by the Creator upon all men equally, by virtue of their birth.
As an unalienable and natural right, the right to one's liberty could not be signed away in the course of any political process, no matter how democratic. As any neutral observer was forced to conclude (in agreement with William Wilberforce), the status of slavehood was never the result of a contractual bargain, but rather the product of subjugation by kidnapping and force.
It followed, from the concept of natural rights, that slavery was incompatible with the Declaration of Independence, and could not lawfully be imposed, or recognized, as a legitimate status upon any human being. The Supreme Court's Dred Scott v. Sandford decision to the contrary was repudiated, and it stands today as a monument to colossal judicial arrogance.

The authority of Scripture within the Church is thus a parallel, not to the rights secured to the States by the Tenth Amendment, but rather to the natural rights of all humans recognized, and expressed, in the Declaration of Independence. The point is that neither -- the natural rights so acknowledged, nor the authority of Scripture -- can be surrendered, nullified, compromised, or taken away, by any earthly authority whatsoever. They are God-given, and thus are not for man to interfere with, dabble in, or temporize in any way, shape or form.

Your nonsensical claim, Mr. Naughton, purporting to equate "States' rights" with "the authority of Scripture," thus gets the truth exactly backward. States have "rights" only insofar as the people have granted them in the first place -- there are no "natural" rights of States, which are not created in God's image, after all. The people themselves are the source of all rights which may be granted to the several States.

But the people also, as we have just seen, possess certain rights which are unalienable: which is to say, they may not be granted, sold, or bartered away in exchange for anything else whatsoever.

Likewise the authority of Scripture inheres in Scripture itself, as the Word of God, and may not be compromised, bargained away, minimized or contradicted in any way, shape or form whatsoever.

You thus play a very foolish game, Mr. Naughton, when you try to equate "States' rights" with "the authority of Scripture." Your parallel attempts to match that which comes from God alone to that which comes from mere man. As such, it confuses categories which are fundamental. Hence your analogy is no "parallel" at all, but a desperate attempt to reduce that which is divine to a level of human control, and thus subject to human manipulation.

Man is no more the final arbiter of what Scripture commands than were Southern politicians the final authority on what the Declaration of Independence meant, in saying that "all men are created equal." A terrible war had to be fought to establish that simple truth, Mr. Naughton, and your lame attempt at analogy insults the very ideals that were vindicated in that horrendous sacrifice.

A Welcome Call for an Advent Respite

2011-12-10T18:48:00.000-08:00

I have not, until this point, chosen to devote any posts to the ongoing developments with the Anglican Mission in America (AMiA). Although it is certainly a topic within the purview of this blog, I have preferred to wait until more facts are known before adopting a stance on what is happening.

That much having been said, I think it is fair to say that all Christians, everywhere, can uniformly deplore the manner in which this scenario has played out, given the Internet and its ability to spread news at the speed of light, as well as the reactions to that news. The Internet, because of its very immediacy, tends to magnify the significance of individual personalities, and at the same time, to make it thus more difficult to view the entire forest instead of the individual trees (or should I call them "personali-trees"?).

It is thus with great relief that I noted this letter addressed to all the participants in AMiA's ongoing evolution. It is written by the Rev. Alan Hawkins, Network Leader of the Apostles Mission Network, the body of churches and missions which are remaining under the jurisdiction of the Anglican Province of Rwanda (PEAR, to use its French-language initials). And yes, it is ironic that this body, which did not come to the forefront until just a week or so ago, could rely upon the Internet to establish its immediate purpose and presence, in order to reassure those congregations and clergy who were wondering what would happen, that there would indeed be an ongoing entity under the jurisdiction of PEAR with which they could continue their affiliation, if they so choose. As such, it is under the episcopal oversight of the Rt. Revs. Thad Barnum and Terrell Glenn -- the two bishops who have not resigned from the Rwandan House of Bishops, and who have been asked by the latter body to assume supervisorial responsibility for all of the parishes and missions who choose to remain under the Province of Rwanda's jurisdiction:

Dec. 10th, 2011

To whom it may concern:

We are deeply saddened and dismayed by the recent turn of events that have brought pain and separation between the Province of Rwanda and the Anglican Mission in the Americas. We are also deeply grieved by the subsequent "Internet" eruptions and email trails that have contributed to further damage in our witness before believers and non-believers alike.

On December 9th, 2011, the House of Bishops of the Anglican Province of Rwanda (PEAR) appointed Bishop Terrell Glenn, Jr., of Charlotte, NC and Bishop Thad Barnum of Fairfield, CT to oversee the care and shepherding of all clergy who are canonically resident in PEAR and affiliated with the Anglican Mission in the Americas. Bishops Glenn and Barnum hope to work on behalf of PEAR and with the leadership of The Anglican Mission in the Americas in assisting clergy and congregations with their present and future canonical residencies.

To that end, we are requesting an 'Advent Respite' while leaders representing those clergy and congregations concerned can honorably and honestly work through their respective issues. We respectfully ask members of the different media sites and those who 'blog' to observe this respite as well. We recognize this situation has raised numerous questions, especially those of canonical status and future affiliations. We believe these situations will be addressed and questions will be answered "in a manner worthy of the gospel" of Jesus Christ. We also know that, in God's time, there will be an opportunity to bear witness a positive and a Christ-honoring resolution to this painful situation.

In addition, we request of all clergy and congregations in PEAR, that all recruiting, posturing, and gathering for allegiance to one side or another in these matters cease immediately. In place of these, we commit to join everyone in fervent prayer to our Lord that His reconciling love would prevail in our hearts and that His grace would abound as we seek a way forward that blesses Him and brings glory to His Name.

Humbly submitted,

The Rev. Alan Hawkins

Network Leader, Apostles Mission Network

I heartily join in the declared "Advent respite", and wish the many good Christians affected by these events a grace-full and Holy Spirit-led Advent, in which they can mutually, and respectfully, grant each other the space within which to discern the roles to which Our Most Merciful Saviour is calling them within the body of His one holy, catholic and apostolic Church.

To quote again my favorite prayer (now relegated, alas, to the back of the 1979 Prayer Book):

O God, the creator and preserver of all mankind, we humbly
beseech thee for all sorts and conditions of men; that thou
wouldest be pleased to make thy ways known unto them, thy
saving health unto all nations. More especially we pray for
thy holy Church universal; that it may be so guided and
governed by thy good Spirit, that all who profess and call
themselves Christians may be led into the way of truth, and
hold the faith in unity of spirit, in the bond of peace, and in
righteousness of life. Finally, we commend to thy fatherly
goodness all those who are in any ways afflicted or distressed,
in mind, body, or estate; [especially those for whom our prayers
are desired]; that it may please thee to comfort and relieve
them according to their several necessities, giving them patience under their sufferings, and a happy issue out of all their afflictions. And this we beg for Jesus Christ's sake. Amen.

Timberridge Asks Georgia Supreme Court for Stay; Will Petition United States Supreme Court

2011-12-08T08:43:00.001-08:00

Timberridge Presbyterian Church, the small Georgia parish which lost its property by a 4-3 decision of the Georgia Supreme Court last month, has asked that Court to stay the implementation of its decision while it petitions the United States Supreme Court to review the Georgia Court's judgment. (H/T: Presbyterian Lay Committee.) At the same time, Timberridge has filed a petition with the Georgia Supreme Court to rehear the case.

I analyzed the Georgia Supreme Court's dissenting and majority opinions in the Timberridge case in this earlier post, and I also wrote about the Georgia Court of Appeal's opinion in this post. Taken together, the two posts provide a very good picture of what is wrong with the Georgia Supreme Court majority's view of what constitutes "neutral principles of law." Significantly, this will be one of the main points in the forthcoming petition for certiorari to the United States Supreme Court:

In its petition for writ of certiorari to the United States Supreme Court, Appellee intends to raise the following issues:
A. Whether [the Georgia Supreme Court] incorrectly applied the holding and guidelines of the [U.S.] Court in Jones v. Wolf … in its analysis of neutral principles, thereby violating the First Amendment to the [U.S.] Constitution.” Jones v. Wolf is a past decision in which the U.S. Supreme Court established a neutral-principles-of-law requirement. That requirement specifies that both parties must have the intent to create a property trust.

B. Whether [the Georgia Supreme Court] violated the First Amendment … by impermissibly deciding ecclesiastical matters rather than applying neutral principles.

C. Whether the [U.S.] Supreme Court should resolve the conflicting opinions of numerous high courts across the nation as to application of neutral principles authorized by the decision in Jones.

The Timberridge case will be a perfect vehicle with which to present the Supreme Court with an illustration of how State courts have misconstrued and misapplied Justice Blackmun's famous dictum in Jones v. Wolf, to the special benefit of churches such as ECUSA and PCUSA, and to the detriment of individual parishes which have all along paid for and maintained their property. Indeed, the application for stay in Timberridge lays out the unusual situation which will occur as a result of the Georgia Supreme Court's judgment unless it is stayed:

This Court should stay remittitur to conserve Georgia’s judicial resources. In its decision dated November 21, 2011, this Court ruled that the local church property where Appellee has worshiped for over a century is impressed with an implied trust in favor of a national denomination that has only been in existence for approximately thirty years.

. . . By its terms, the trial court’s order is effective upon remittitur. Therefore, absent a stay, Appellee will be deprived of its place of worship not only during the holy season of Advent and Christmas but also during a time period when it will be pursuing a petition for writ of certiorari to the United States Supreme Court, challenging the very constitutionality of such injunctive relief. . . .

Furthermore, although counsel for the Appellant argued at the October 19, 2009 oral argument in this Court that the Appellant would assume ownership of the local church property if it was ultimately successful in this litigation, as well as the mortgage which is inherent in such ownership, Appellant later filed a supplemental brief in this Court asserting that “title to the property will remain in [Timberridge Presbyterian Church, Inc.] Thus, any outstanding debt secured by the property will also remain a [Timberridge Presbyterian Church, Inc.] obligation. [The Presbytery] will not assume any of [Timberridge Presbyterian Church, Inc.’s] debts.” (Appellee’s Supplemental Brief, p. 2 (emphasis in original).)

As the record reflects, there will be no church to assume the current obligations of the local church property as a result of this Court’s decision, nor will the Appellant assume those obligations. Id.; see also, R-1158. Therefore, a stay is imperative to preserve the potential rights and obligations of all parties and to prevent a likely foreclosure and loss of the local church property, pending exhaustion of the full appellate process.

Not only does the regional Presbytery plan to take over the parish's property as a result of the judgment; it says it will do so without assuming the existing mortgage! (This is rather short-sighted of them: do they not realize that if the mortgage is not kept current, the bank will end up owning the property, instead of either the Presbytery or the parish? Or perhaps they intend to engage in a game of "chicken" with the parish, to see who will blink first?)

All of this presents a good case for granting the requested stay. Meanwhile, Christ Church Savannah, the other parish which lost its property due to the twisted reasoning of the Georgia Supreme Court (which relied mainly on its 4-3 decision in the Timberridge case), has not requested a stay. It plans to hand over its properties to the Episcopal Diocese of Georgia, and its local congregation, on December 12.

That turnover should not, however, prevent it from petitioning the United States Supreme Court for review of its judgment, as well. Doing so will be the only way for Christ Church to prevent that judgment from becoming irreversible, should the Timberridge parish be victorious in the highest court. Moreover, by filing such a petition, Christ Church would increase the chances of both petitions being granted by the United States Supreme Court.

As I have frequently pointed out before, all of the most recent decisions by the United States Supreme Court on church property law have been occasioned on review of decisions made by the Georgia Supreme Court. In the 1969 case of Presbyterian Church v. Mary E. B. Hull Presbyterian Church, 393 U.S. 440, the Court ruled that church property disputes could not properly be resolved under the "departure from doctrine" element of the implied trust theory which had been employed until then in church property cases in many State courts, including Georgia's. On remand from that reversal, the Georgia Supreme Court ruled that without the "departure from doctrine" element, no part of the "implied trust theory" could survive First Amendment scrutiny (quoting from the U.S. Supreme Court's majority opinion in Jones v. Wolf):

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

Another decision by the Georgia Supreme Court came up for review ten years later, and resulted in the 5-4 ruling in Jones v. Wolf (1979), 443 U.S. 595, that sanctioned a “neutral principles” form of analysis as a constitutional alternative in church property disputes --- even in ones involving a hierarchical church. The case was again sent back to the Georgia Supreme Court for it to apply such "neutral principles" to resolve the ownership question in favor of the majority of the parish.

Before the decision came down in Jones, the Georgia Supreme Court went off on another tack, and upheld the award of a parish's property to the national denomination in Carnes v. Smith, 236 Ga. 30, 222 S. E. 2d 322, cert. denied, 429 U.S. 868 (1976). As described by the majority in the Jones opinion again:

That case concerned a property dispute between The United Methodist Church and a local congregation that had withdrawn from that church. As in Presbyterian Church II, the court found no basis for a trust in favor of the general church in the deeds, the corporate charter, or the state statutes dealing with implied trusts. The court observed, however, that the constitution of The United Methodist Church, its Book of Discipline, contained an express trust provision in favor of the general church. [Footnote omitted.] On this basis, the church property was awarded to the denominational church. 236 Ga., at 39, 222 S. E. 2d, at 328. . .

Three Justices of the Georgia Supreme Court dissented from this holding, on the grounds that under "neutral principles of law", only the church deeds and similar documents could be consulted, and not any national church rules or canons. As noted in the quote above, the United States Supreme Court had refused to review the decision in 1976. Then, in 1979, it reviewed and reversed the Georgia Supreme Court in Jones v. Wolf.

Now the Georgia Supreme Court has again purported to apply its doctrine favoring national church-imposed trusts as part of "neutral principles", in the Timberridge case. But this time, there is a new wrinkle. As explained in my two posts on the appellate decisions linked earlier, the Timberridge parish took steps to opt out of the national church's trust provision, steps which the Georgia Supreme Court deemed were inadequate. The Georgia Court needed to reach that result in order to bolster its decision in the Christ Church case, and as indicated, the result was a divided 4-3 Court.

The Timberridge parish is to be commended for calling the majority's result-oriented reasoning to account before the nation's highest court. And for the reasons I gave earlier, Christ Church should strengthen its own and Timberridge's chances of a hearing by asking for review of its own judgment, as well. Only in that way will the United States Supreme Court be able to see how the rationales of the two cases were inextricably bound up with each other, so that if one falls, the other must, as well.

In the School for Hypocrites

2011-12-07T00:28:00.000-08:00

Scene: In a classroom of the College for Bishops. A teacher is just finishing his lecture to the assembled Bishops, who are all from Province IV of the Episcopal Church in the United States of America.

David Booth Beers: . . . And so that is pretty much what I have to tell you. As your guest lecturer today, I have introduced to you, the bishops of Province IV, both the newest and the oldest among you -- [pauses and waves at the Bishop of Southeast Florida] hi, Leo -- the exciting new world of the revamped Title IV Canons of the Episcopal Church, with a special emphasis on what the changes mean for diocesan bishops. I will now be happy to answer any questions you may have.

Bishop in front row (raises hand): You said that we are now all operating under the new Title IV of the Canons, which went into effect last July 1, but what about the Diocese of South Carolina? Mark Lawrence isn't here -- but I heard that they objected to the new Title IV taking effect in their diocese.

David Booth Beers: Yes, we (that is, Mary Kostel and I) are looking into that as I speak. Suffice it to say that his position is not going to fly. So long as Bishop Lawrence and his Diocese are Episcopalian -- and one of the points we stress in the courts is that, although people may decide to leave the Church, dioceses never can -- they are equally subject to the canons approved by General Convention.

Bishop in second row (raises hand): But it was the whole Diocese that voted not to accept the new Canons. How can a bishop force his Diocese to do something it does not want to do? And if he can't do it, how can the Church as a whole do it?

David Booth Beers: It's not complicated. If they will not do what we want, we get rid of their Bishop and call a new Convention. We will strictly control who can attend. There will be a required oath of loyalty to 815, for instance. Then that new Convention declares the acts passed by the old Convention to be null and void.

Same Bishop: And if they ignore those actions?

David Booth Beers: Not a problem -- we sue them to be recognized as the only Episcopal Diocese. And once we win that suit -- which we will, because we're the Episcopal Church, and so we control whom the courts will recognize -- we take back all their property.

Bishop toward the back: But what about the quitclaim deeds he gave to all his parishes? Granted, your "new Convention" can revive the old diocesan Constitution and adopt all the new Title IV Canons, but how can it undo the effect of those?

David Booth Beers: Simple, again. The new Convention passes a new Dennis Canon, and immediately reimposes on every parish property a new trust, from that day forward. If they then try to leave, they are toast.

Same Bishop: But that's not what the South Carolina Supreme Court says. If I read the "Anglican Curmudgeon" right, that Court --

David Booth Beers (interrupting): Curmudgeon, Furmudgeon -- you shouldn't even be going to that site, let alone reading his trash. The South Carolina Court's decision was unique to All Saints Waccamaw parish, and we think we can convince them otherwise with respect to all the other parishes, especially given the recent decision in our favor from the Georgia Supreme Court, which is right next door.

Bishop in front row: At any rate, you'll keep them all tied up in litigation for years, right? You plan on the result that they'll throw in the towel after they get their first huge legal bills.

David Booth Beers: Now you're getting it. We have literally hundreds of millions of dollars of trust funds which we have scarcely yet begun to tap into. And since we control Executive Council, which determines the funds which are appropriate to tap, there is no obstacle to the Church's access to all the funds it could ever need to pay for litigation. Meanwhile, what do they on the opposite side have? Actually, we know, because we talk to their bankers, and we'll get their money all tied up before we file even the first lawsuit.

Bishop in back, who hasn't spoken thus far: But what if one particular parish, just as All Saints did, takes you all the way to the Supreme Court again? And what if the Court again sides with that parish?

David Booth Beers: Fine -- then that parish wins, and gets to keep its property. But that would not decide all the other cases there and then. We have the resources to keep litigating against each and every other parish, claiming that their circumstances are unique, and hence different from any case decided by the Supreme Court. And we can continue doing that for as long as it takes to make them succumb, and turn over their property to us. Then, when one of them surrenders their property to us, we sell it -- for whatever we can get, and apply the proceeds to the ongoing litigation against the others.

(Pauses.) You folks may not realize it, from where you sit, but we who are your attorneys realize that the Dennis Canon is like the Golden Goose: it keeps laying golden eggs for us -- and so why should we ever want to kill it? It is the most fearsome weapon ever invented to keep wayward parishes in line, and we, the Church's attorneys, will not ever, ever, give it up.

Bishop in the back, again: Let me just get this clear. You are saying, first, that you can get a bishop deposed for the corporate acts of his diocese? I mean, Bishop Lawrence did not hold any claim in his name to the title of his parishes' properties under the Dennis Canon; only his Diocese did. So when the quitclaim deeds were issued, it was the Diocese that was releasing any interest it had, and not Bishop Lawrence personally.

David Booth Beers: And your question is?

Bishop in the back (who is now revealed to be Bishop Young, of the Diocese of East Tennessee): Well, I mean -- I mean, my own diocese, the Diocese of East Tennessee, does not have a clause in its Constitution by which we accede to the national Canons -- just like South Carolina. But we're still regarded as a full-fledged member of the Church. So are you saying you could ask the House of Bishops to depose me because my Diocese has not seen fit to accede to the Canons?

Another Bishop (Bishop Duncan, of the Diocese of the Central Gulf Coast): Wait a minute -- that's the case in my Diocese, too: our corporate articles accede only to the national Constitution, and not to the Church's Canons as such. Are you saying you could get me deposed?

Immediately another Bishop (Bishop Curry, of North Carolina) jumps up: Hey, that's the case in my Diocese, too! How can you hold me responsible for the way my Diocese chooses to express its union with the national Church?

Consternation ensues. Bishop Gray of Mississippi yells out: In our Diocese, we simply acknowledge the authority of General Convention -- we don't particularly accede to anything -- Constitution or Canons. Does that mean you can ask the new Disciplinary Board to charge me personally with violating the national Constitution?

Other bishops now join in the chorus: Bishop Thompson of Louisiana, Bishop Bauerschmidt of Tennessee, Bishop Howard of Florida, and Bishop Johnson of West Tennessee all chime in with their objections, based on similar grounds. A general uproar ensues, which the Lecturer, with considerable yelling and difficulty, finally shouts down.

David Booth Beers: ALL RIGHT, ALREADY!! QUIET DOWN!! Listen to me: I say, quiet down! You Bishops who have protested, because your own Dioceses don't do anything different from what the Diocese of South Carolina has done, have nothing to fear. Do you hear me? I say, as the Chancellor to the Presiding Bishop, we know who you are, and you have nothing to fear.

Bishop Lawrence is in trouble, not because of anything his Diocese has done, but because of what he personally has done to reject the authority of our Presiding Bishop, and of the national Church. Bottom line is: whether or not you "accede" to the national Constitution or Canons, do you as Bishop of your Diocese acknowledge them, and not try to have your diocese circumvent them? As long as you do not make any trouble for us, we won't make any trouble for you. It's that simple.

Bishop Gray: But how could we, with our dioceses not doing anything different from what South Carolina has done, take any part in proceeding against Bishop Lawrence?

David Booth Beers: You won't have to. Now listen up, and listen carefully: There are some of you bishops in Province IV, the same province of Bishop Lawrence, whose Dioceses' constitutions do properly accede to the national Constitution and to the Canons. Bishop Parsley, for instance, of Alabama -- I know that your Diocese has set an example, by agreeing to be bound by both the national Constitution and the Canons in two places -- in your State's charter, and in your local Canons. Not only do you agree to be bound by them, but you expressly agree, in blank, to be bound as those documents may be amended from time to time, so I would cite your Diocese as a model for all others to emulate.

The same goes for Bishop Alexander, of Atlanta; for Bishop Benhase of Georgia, for Bishop Taylor of Western North Carolina, for Bishop Daniel, of Eastern North Carolina, for Bishop Frade, of Southeast Florida, for Bishop Smith, of Southwest Florida, for Bishop White, of Kentucky, for Bishop Knudsen, interim Bishop of the Diocese of Lexington, and finally for Bishop Waldo, who is Mark Lawrence's closest neighbor. It would also go for Bishop Howe, of Central Florida, except I understand he's not attending this class, probably because he's about to retire. So there are a good number of you who can stand up to Bishop Lawrence, without being shamed by your own Dioceses.

Bishop Clifton Daniel: But what would you like us to do?

David Booth Beers: Not me, personally, but I'll tell you what the Presiding Bishop would like you to do. [Bishop] Dorsey Henderson's Disciplinary Board recently fizzled out on us, and ++Katharine wants someone to carry the ball forward. We need those of you who are in the same Province as Bishop Lawrence, Province IV -- and who can do so without embarrassment, on account of your dioceses' governing documents, to take Bishop Lawrence aside, face to face with him, and let him know, in no uncertain terms, just what's in store for him and his diocese should he continue on his present path.

That was the point of my lecture to you today. Some of you might have thought you were attending a regular class of your College of Bishops, but I can tell you now that I came down here because Bishop Katharine asked me to move the ball forward, and to keep the heat on Mark Lawrence -- so I set this up with your secretaries. And now that we're all here, and that I've been completely frank with you, I have to ask: what are you going to do about it?

There is considerable chatter and whispering among the assembled Bishops. Finally, Bishop Clifton Daniel addresses Chancellor Beers: You say Katharine wants us to do this for her?

David Booth Beers: Would I make this up? Trust me, she wants you to step out for her, and show your allegiance.

Bishop Daniel: Well, since I know her well, and serve on her Council of Advice, I guess I could do something.

David Booth Beers: That's great -- just what we wanted to see. I suggest you write Mark Lawrence a letter, and tell him you want to meet with him to discuss things openly. Make it pastoral in character -- you know, cite the Gospel or some such about how Christians should get together to discuss their differences before taking matters to a larger body, like the House of Bishops in this instance.

Bishop Daniel: And whom should I have with me when we meet?

David Booth Beers: Exactly the ones I named earlier, whose Dioceses fully acceded to both the national Constitution and to the Canons -- or as many of you as can make it. Can you do that -- for Bishop Katharine?

Bishop Daniel consults with those around him, then addresses the Chancellor: Yes, I guess we can do that. I'll write a letter inviting him for a talk, and send it to you first for clearance.

David Booth Beers: That's fine. And then after we clear it, and you let me know you've sent it, we'll give it to ENS to publicize -- that'll put maximum pressure on him and his Diocese.

Bishop Daniel: Please tell Katharine for me that it's as good as done.

David Booth Beers: Thank you. We knew we could count on you.

[END]

Advent in Two Minutes

2011-12-03T12:56:00.000-08:00

The folks at BustedHalo.com, a spiritual seekers' site run by some very energetic Catholics, have produced this video to give everyone a two-minute refresher course on Advent, which is timely in view of all the emphasis on Christmas itself:

As mentioned at the end, they also are running a video Advent calendar, with film clips, songs and timely quotes for each day until Christmas.

For some reason -- probably the same reason for which the video is an antidote -- I find that Advent is for me the season in the Church year which passes most quickly. (The season that passes most slowly for me is not Trinity, but Lent.) One can so easily get lost in all the parties, concerts, shopping for presents, writing cards, and special events. It is a good idea to step back and take stock of oneself -- for He is coming, the day and the hour we know not. Like the foolish virgins who let their lamps go out, it will not do to be caught unprepared.

A joyous, fruitful and contemplative Advent to you all!

Disciplinary Board Clears Charges Against Bishop Lawrence

2011-11-29T00:03:00.000-08:00

The Rt. Rev. Dorsey Henderson, President of the Disciplinary Board for Bishops, has released a statement announcing that the eighteen-person Board could not muster a majority to charge the Rt. Rev. Mark Lawrence of South Carolina with "abandonment of the Communion of this Church." Thus ends a clumsy attempt to take seriously the allegations of "abandonment" lodged by dissidents from Bishop Lawrence's own Diocese, who tried to turn his steadfast insistence on the central importance of Holy Scripture to the life of the Church into a case for his abandonment of it.

Bishop Henderson, stung by the vehemence with which his initial announcement of "serious charges" against Bishop Lawrence was greeted, appears to have been unable to refrain from letting loose a parting shot, even as he retreated from the fray in ignominy (my italics added):

It is also significant that Bishop Lawrence has repeatedly stated that he does not intend to lead the diocese out of The Episcopal Church—that he only seeks a safe place within the Church to live the Christian faith as that diocese perceives it. I speak for myself only at this point, that I presently take the Bishop at his word, and hope that the safety he seeks for the apparent majority in his diocese within the larger Church will become the model for safety—a “safe place”— for those under his episcopal care who do not agree with the actions of South Carolina’s convention and/or his position on some of the issues of the Church.

"Apparent majority", Bishop Henderson? Did your investigations uncover that the dissident Episcopal Forum (some of whose members must have anonymously filed the childish charges) has at best about a thousand members? (There are even fewer, if we count just those who are willing to have their names publicly associated with the group.) And did you learn that Bishop Lawrence's Diocese has more than twenty-five times that number of Episcopalians, who are choosing to remain under his pastoral care?

Just what is this talk of a "safe" place for those dissidents, Bishop Henderson? Did you intend to add to their already neurotic fears and anxieties? I will wager that they are far safer in the Diocese of South Carolina, which is led by an actual Christian bishop who believes in Jesus' command to "love one another as I have loved you", than they would be under a bishop who believes instead in the Old Testament adage of "an eye for an eye, a tooth for a tooth." (I refer to certain bishops who shall go unnamed, but who have signaled their vengeful intentions with words such as: "There's a new sheriff in town.")

The real question is just this: is Bishop Lawrence truly "safe" now, Bishop Henderson -- or will you be shortly sending him notification of new charges brought against him on account of his having authorized quitclaim deeds to be delivered to every parish in his Diocese? Those deeds renounce any and all claims (such as claims of any trust interest pursuant to the Dennis Canon) to that parish's property on behalf of the Diocese, and hence all claims on behalf of the Episcopal Church itself, since the latter entity can act locally only through one of its dioceses.

There persists, among the dissidents in South Carolina, and among similar canonical ignorami scattered throughout other dioceses and the Episcopal blogosphere, a notion that the South Carolina Supreme Court did not mean what it said in its decision in the All Saints Waccamaw case. Here is one such view, chosen at random from many such offered on the Web for public consumption:

Three years ago {Ed. note: Actually, it was two years ago, but who cares about being accurate here?}, the state's Supreme Court issued a ruling in the case of All Saints, Pawleys Island that seemed to suggest that the Episcopal Church -- and any other similarly structured church organization like the Presbyterians and Methodists -- does not have a legal interest in parish property held in trust by the Episcopal Church in the Diocese of South Carolina. {Ed. note: How screwed up can you make things? The parish property was "held in trust by the Episcopal Church"? Didn't you mean to say that in your view, it was "held in trust for the Episcopal Church in the DSC?}

All Saint's was trying to break away from the Episcopal Church and join the Anglican Province of Rwanda, which it eventually was allowed to do. {Ed. note: I'm sure the congregation of All Saints Pawley's Island must be eternally grateful that some unspecified person or body "allowed" them to join the Province of Rwanda, but that implies they had to ask someone for permission, when the Court held precisely that they did not. Their amendments to their own articles and bylaws were fully sufficient, under South Carolina law, to accomplish that result -- without anyone else's "permission."}

Legal authorities and those familiar with the Court's thinking {Ed. note: You mean that the Court thought other things than what it so plainly said in its opinion, and that one has to be "familiar with its thinking" in order to understand what it really meant? Good grief.} say that the ruling was specific to the unique nature of All Saint's case. However, the Diocese of South Carolina, under Bishop Lawrence, disagrees.

Critical to the Court's ruling in the All Saints' case was a "quitclaim" deed executed by the Diocese in 1903 relinquishing any legal interest it might have to All Saints' property.

The existence of that deed tipped the Court's view of property ownership in favor of All Saints' over that of the Episcopal Church and the Diocese.

Not so fast. That 1903 Quitclaim Deed was certainly cited in the Court's decision as one factor in the ruling confirming that the Diocese of South Carolina had released all claims to All Saints Waccamaw's property at that time, but what about the 106 years following? The only hook on which the Episcopal Church and the Diocese (then under Bishop Lawrence's predecessor, Bishop Salmon) could try to hang their claims of a trust interest was the enactment of the Dennis Canon by the national Church in 1979, and of a counterpart by the Diocese two years later.

Thus, regardless of the 1903 Quitclaim Deed, if the Dennis Canon or its diocesan counterpart had been sufficient to create a new trust interest in All Saints' property from 1979-1981 and forward, then it would have not mattered what the South Carolina Supreme Court found with regard to the 1903 Deed. Instead, however, the Court made short shrift of the national Church's and the Diocese's attempts to declare a trust interest in property which they never owned:

Furthermore, we hold that neither the 2000 Notice [of claim to a trust interest in the property, recorded by the Diocese] nor the Dennis Canon has any legal effect on title to the All Saints congregation’s property. A trust “may be created by either declaration of trust or by transfer of property….” Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property.

For the aforementioned reasons, we hold that title to the property at issue is held by All Saints Parish, Waccamaw, Inc., the Dennis Canons had no legal effect on the title to the congregation’s property, and the 2000 Notice should be removed from the Georgetown County records.

(Emphasis added. The Court speaks of the "Dennis Canons" in the plural, because both the Diocese and the national Church had enacted similar provisions in an attempt to create a trust interest.)

What is so hard to understand here? The 1903 Quitclaim Deed was not at all the "tipping point" which decided the case in the parish's favor; nor was it a "unique" factor which would enable a later court to distinguish the All Saints case from any other attempt to invoke the Dennis Canon (or its former diocesan equivalent). The Court's language could not have been more plain: "The Dennis Canons had no legal effect on the title to the congregation’s property . . .". "No legal effect" means "no legal effect." The two Dennis Canons, whether singly or together, were incapable of creating a legal trust interest which could be recognized by any South Carolina court, because they did not satisfy the basic requirement of having the consent of the property's owner to the creation of such a trust, evidenced by its signature on a written trust instrument spelling out its terms.

One of the things I have noticed in writing this blog is that left-leaning, liberal Episcopalians simply will not accept a rule, decision, canon or other pronouncement of law which they do not like. They will invent all sorts of reasons or rationales for evading the plain effect and language of the rule, decision, canon or other pronouncement of law, or for treating it as only a "special case," with no precedential value whatsoever.

Thus the Presiding Bishop found it "inconvenient" to allow the three senior bishops in the Church to have a "veto" over her ability to inhibit a bishop charged with "abandonment of communion", and so she simply ignored that limitation and went ahead and inhibited Bishops Cox and Duncan anyway. Or again, she found it "inconvenient" to require a written renunciation of his orders to get rid of Bishop Iker, so she treated one of his public statements as such a renunciation, and had him deposed on that basis. Likewise, it was most inconvenient to have to muster up a majority vote of "the whole number of bishops entitled to vote in the House of Bishops", since that language included retired ("resigned") bishops who also constitutionally have a vote in the House, and retired bishops hardly ever attend its meetings. So she simply declared that the inconvenient language meant something else, and got her wholly neutral and unbiased Chancellor to issue a ruling backing her up: from now on, a "majority of the whole number" meant only a majority of those who bothered to show up and vote.

The All Saints decision was most certainly a setback for the Dennis Canon in South Carolina. But Episcopalians everywhere must now face the fact: the Dennis Canon was completely ineffective to work its usual magic in that State, because that State has a Court which actually could apply the law of trusts, and of how one is properly created. Just because courts in other States have given the Episcopal Church a pass on its Dennis Canon is no reason to expect such special treatment everywhere. South Carolina, Louisiana, and (soon, I hope) Indiana are States which respect the traditional law of trust creation, and hence in which the Dennis Canon or its equivalents will have "no legal effect."

The dissident Episcopalians are thus blowing smoke when they claim that Bishop Lawrence and the Diocese did something un-Episcopalian in issuing quit-claim deeds to each and every parish. What Bishop Lawrence and his Diocese did was simply following the law as declared by South Carolina's highest State court -- and if to follow the law is un-Episcopalian, well -- there you have it, don't you? To be Episcopalian (at least, to be a member of the South Carolina Episcopalians group) is to ignore what the law plainly says, and to fault and try to drag down others for actually following it (and thereby disagreeing with you).

Accordingly, Bishop Henderson, your warning to Bishop Lawrence is utterly misguided. No one in South Carolina has anything to fear from a Diocese or its Bishop who scrupulously follows the law -- both civil and scriptural. It is precisely the ones who will not follow the law who make the place unsafe for law-abiders.

Rot from Without, Decay from Within

2011-11-28T08:26:00.000-08:00

Let me say at the outset that I began this blog in 2008 because I believed that there were things going on in my Church -- the Episcopal Church (USA), of which I had been a faithful member from baptism -- which required broader attention from those potentially most affected. Specifically, I believed that events ever since 2003 needed attention from those lay people in the Church who might not be able to interpret the legal niceties being urged in the various court and disciplinary proceedings which had been brought in the Church's name up to that time, but who could, as traditional Episcopalians, appreciate that not all of the legal positions being taken by their Church were, shall we say, "kosher".

Ever since my first post, I have focused on the constitutional and canonical violations by those at the head of the Church -- generally the steps they took to remove from the Church's ministry those with whom the leadership disagreed on matters such as same-sex marriage, and to alienate the Church from the vast majority of the Anglican Communion. If you are an Episcopalian, I ask that you put all of the hype which you may have read about the Episcopal Church (USA, that is) being "in the forefront" of the movement to recognize same-sex "marriages" into the context of what I shall now relate.

Others have sketched the history by which gay and lesbian activists gradually increased their representation in the deliberative bodies of the Church, beginning in the 1970s and increasing steadily until General Convention 2003. At that Convention, the same-sex activists achieved their first significant advance with the confirmation, in both the House of Bishops and the House of Deputies, of New Hampshire's election of an openly gay man, who had divorced his wife and left his children to partner with another man, as their bishop.

Yet in 2003, it still was not legal for newly elected Bishop V. Gene Robinson to "marry" his same-sex partner in the State of New Hampshire. Nor could such a "marriage" have been recognized within the Episcopal Church (USA). Its Book of Common Prayer, then as now, sets out on page 422 the rubrics for holy matrimony solemnized by the Church, which include this statement (bold emphasis added):

Christian marriage is a solemn and public covenant between a man and a woman in the presence of God. In the Episcopal Church it is required that one, at least, of the parties must be a baptized Christian; that the ceremony be attested by at least two witnesses; and that the marriage conform to the laws of the State and the canons of this Church.

In conformity to this rubric, Canon I.18.2 of the Episcopal Church (USA) has since 1972 contained language to this effect (emphasis again added):

Sec. 2. Before solemnizing a marriage the Member of the Clergy shall have ascertained:
. . .
(b) That both parties understand that Holy Matrimony is a physical and spiritual union of a man and a woman, entered into within the community of faith, by mutual consent of heart, mind, and will, and with intent that it be lifelong.

In addition, the current Canons require that every couple married in the Church sign a very specific statement beforehand, the text of which is set out as follows in Canon I.18.3, subparagraphs (e) through (g), with emphasis added as before:

Sec. 3. No Member of the Clergy of this Church shall solemnize any marriage unless the following procedures are complied with:
. . .
(d) The Member of the Clergy shall have required that the parties sign the following declaration:

(e) "We, A.B. and C.D., desiring to receive the blessing of Holy Matrimony in the Church, do solemnly declare that we hold marriage to be a lifelong union of husband and wife as it is set forth in the Book of Common Prayer.

(f) "We believe that the union of husband and wife, in heart, body, and mind, is intended by God for their mutual joy; for the help and comfort given one another in prosperity and adversity; and, when it is God's will, for the procreation of children and their nurture in the knowledge and love of the Lord.

(g) "And we do engage ourselves, so far as in us lies, to make our utmost effort to establish this relationship and to seek God's help thereto."

The reports of same-sex marriage ceremonies carried out within the Episcopal Church (USA), such as those conducted by Bishop Thomas Shaw of the Diocese of Massachusetts, and by clergy at All Saints Church (Pasadena) in the Diocese of Los Angeles with the approval of Bishop J. Jon Bruno, thus make a mockery of both the foregoing canons, as well as of the rubrics of the Book of Common Prayer.

The latter (rubrics), by the way, outrank the canons of the Church. General Convention can vote to amend the Canons at any single session, but it can effect an amendment to the Book of Common Prayer only in the same manner that it can amend ECUSA's Constitution -- by passage of the amendment at two successive General Conventions, with referral in the interim to each of the Church's several dioceses for their consideration and approval.

Thus, same-sex marriage ceremonies in the Church could not be approved unless and until there was an amendment approved to the Book of Common Prayer. To my knowledge, no such proposal to amend the BCP rubrics has been proposed for GC 2012 in Indianapolis -- the only proposal of which I am aware is to establish rites for the blessings of same-sex civil unions (or "marriages", if that is what the law of the particular State involved recognizes). If none is properly proposed before the applicable deadlines for such legislation, then same-sex marriage ceremonies in the Episcopal Church (USA) could not be approved at least until GC 2018.

The foregoing paragraphs describe, to the best of my ability, the current state of the canon and liturgical law of the Episcopal Church (USA) with regard to "marriage" between persons of the same sex. Such "ceremonies" are neither recognized, nor allowed to be performed, within the authorized liturgies of the Church. It is once again a measure of the lawlessness that reigns at all levels of ECUSA (with the primary example having been long since established by the Presiding Bishop's repeated defiance of the Canons) to note that neither Bishop Shaw nor Bishop Bruno has been required to account, under the more flexible disciplinary canons which took effect last July 1, for their open and flagrant violations of the BCP rubrics, and the canons of the Church, as quoted above. (One can only wonder what kind of "certificate" Bishop Shaw required Dean Ragsdale and her lesbian partner to sign, before he "married" them, that was in complete accordance with Canon I.18.3 (d) quoted above.)

Because these openly acknowledged violations have not been, and will not be, prosecuted by the appropriate Church authorities, one may conclude only that a form of decay has commenced within its venerable halls, which is eroding the very structures designed and intended to hold the Church together as a Church. And a further conclusion thereby presents itself, as an inevitable corollary to the foregoing: those who currently are (mis)leading the Church in this respect must want such decay to have its inevitable effect, in order to hasten the day when the last Scripturally based barriers to officially recognized and sanctioned same-sex relationships will have been discarded as outmoded and anachronistic, and fit only for the scrap heap.

To this dismal picture (from the point of view of Church traditionalists) I am now constrained to add another dimension, which is just as dismaying. Let me begin by filling in some background.

In 1993, the Supreme Court of Hawaii decided the case of Baehr v. Miike, which signaled that a State must have a "compelling interest" in order to deny legitimacy to same-sex marriages. Fearing that a State court's recognition of same-sex marriages might force all other States to recognize such unions under the "Full Faith and Credit" clause of the U. S. Constitution, Congress reacted by enacting, with overwhelming majorities, the Defense of Marriage Act ("DOMA"), which President Clinton signed into law in 1996. This law, relying on the clause in the Constitution (Article IV, Section 1) which gives to Congress the ultimate power "by general Laws [to] prescribe the Manner in which such Acts, Records and Proceedings [of an individual State] shall be proved, and the Effect thereof [in another State]", defined marriage for all federal purposes as "a legal union between one man and one woman as husband and wife" (Section 3), and provided that no State "shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . , or a right or claim arising from such relationship" (Section 2).

Since its enactment in 1996, DOMA has been the subject of multiple challenges in various federal courts, which are recapitulated in detail in this article. Of particular interest to Episcopalians is the current case in Massachusetts of Gill v. Office of Personnel Management, which resulted in a judgment by the federal district court in Boston that Section 3 of DOMA was unconstitutional. This ruling is now on appeal to the federal Court of Appeals for the First Circuit, also situated in Boston.

After defending the constitutionality of Section 3 in lower courts, the Obama Justice Department, pursuant to instructions from President Obama himself, did an about-face on February 23, 2011, and notified the First Circuit Court of Appeals that it would no longer defend the constitutionality of Section 3 in the Gill v. Office of Personnel Management appeal. Since that notification, the House of Representatives (with its Republican majority) has voted to retain the counsel necessary to defend Section 3's constitutionality on appeal.

And there matters stood, while the various briefs on the appeal were being filed. But now comes word, via the public relations page of the law firm of Goodwin Procter -- the law firm of which the Presiding Bishop's Chancellor David Booth Beers is a member, along with her "Special Representative for Litigation" Mary Kostel -- that the firm, which previously acted as counsel for certain parties to the Gill case in an earlier lawsuit challenging the constitutionality of Massachusetts' marriage laws, has both filed as counsel, and signed in its separate capacity as an employer in its own right, an amicus curiae ("friend of the Court") brief in Gill which argues for the unconstitutionality of the definition of marriage as embodied in Section 3 of DOMA.

To sum up the current anomalies, as presented in this post:

1. The Episcopal Church (USA) currently defines marriage, both canonically and in its rubrics, as the "physical and spiritual union of a man and a woman."

2. There is no current measure proposed in the governing bodies of the Episcopal Church (USA) which would alter or amend its definition of "marriage" so as to incorporate therein the joining in "marriage" of two persons of the same sex.

3. Notwithstanding the Episcopal Church (USA)'s Book of Common Prayer and its associated Canons, certain clergy (including diocesan bishops) have performed, or have allowed to take place within their Diocese, rites of "holy matrimony" for same-sex marriages within the Episcopal Church's liturgy.

4. The resulting spectacle of lawlessness is undermining the Church from within.

5. Now comes word that the law firm of the Presiding Bishop's own Chancellor, and of her Special Assistant for Church Property Litigation, has gone on record as opposing the Church's own definition of marriage in the BCP and in its Canons.

6. Notwithstanding #5, the Episcopal Church continues to employ both Goodwin Procter, the Chancellor, and the Special Assistant to the Presiding Bishop, as its counsel to litigate against departed parishes and dioceses who are opposed to the Church's apostasy, among other things, concerning Christian marriage.

This is both, as my title indicates, "rot from without and decay from within." The Church is actively subsidizing and promoting the former, while taking no steps to prevent the latter.

In consequence of the foregoing, we have a Church which is speaking with a forked tongue, or out of both sides of its mouth. A Church cannot uphold traditional teachings with regard to Christian marriage, on the one hand, and then work actively to undermine those same teachings in the secular arena, on the other hand. Still less can it employ as counsel those who are hopelessly conflicted with regard to the Church's traditional teachings, and who actively deny in the secular arena that those teachings have any social, legal, or moral validity.

Your Curmudgeon is an eager student of Church history, and is quite familiar with the various histories of Christ's universal Catholic Church, and of the Protestant Episcopal Church (USA) in particular. But for the life of him, he cannot identify any point in the larger Church's trajectory, or in that of the Protestant Episcopal Church (USA), at which one could say that it was more conflicted between its sacred and secular stances than it is this very day. A Church so divided against itself cannot stand, and will not continue to stand, because as such it is a contradiction of itself, and of God's holy Word.

Those who are pushing the agenda of same-sex marriages within the Church are set upon overthrowing (in just the Episcopal Church, and in just a very few years) five hundred and fifty years of documented tradition and rubrics -- in the name of -- what? "Social justice and equality"? Give me a break. Whose "justice", and whose "equality"? Has the Holy Spirit, anywhere or at any time, bestowed an unambiguous and unqualified blessing (using objectively measurable criteria such as increased membership), upon any "Church" which has officially sanctioned and blessed same-sex unions? Are we not, instead, witnessing a re-enactment of the now stereotyped "resistance" against a perceived "unjust denial" of what are regarded as "civil (or equal) rights"? But who is denying whom some "right" which is spiritually theirs to claim from God? Since when has Scripture needed to bend to the force of civil law?

This once-noble Church is being transformed, at the hands of single-minded activists, into a secular cult which will reflect only its lack of all Scripture-based grounding and tradition, and (in their place) will embody only the sacrifice to Caesar of those things which are properly God's. Nothing will then distinguish such a "Church" from its pagan predecessors. As a consequence, nothing about it will any longer have any claim to loyalty or adherence on the part of its traditional members.

Analyzing the Georgia Decisions (I): the Dissenters Have the Better Arguments

2011-11-23T08:37:00.000-08:00

[Note: in this opening post on the recent Georgia cases, I begin with the case involving the Presbyterian Church (Timberridge), because it is the pivot on which the Court's decision in the Christ Church Savannah case turns. I will have more to say about the latter decision in a subsequent post.]

The majority opinion of the Georgia Supreme Court in the recent Christ Church Savannah case offers a study in judicial dynamics. The author of the opinion is Justice David E. Nahmias; he also wrote the opinion for the 4-3 majority in the case of Timberridge Presbyterian Church, which the Court decided the same day. [UPDATE 11/24/2011: I have been given some information which I find simply amazing. I am informed that Justice Nahmias is a prominent member of an Episcopal congregation in Atlanta, while the Presiding Justice of the Georgia Supreme Court, the Hon. George H. Carley, is an equally prominent member of a church that has joined the Anglican Province of America. The latter saw enough of a potential conflict in the Christ Church case to recuse himself from participation in it, while Justice Nahmias not only did not see fit to recuse himself, but authored the majority opinions in both cases! It's pretty good when you find yourself in a position to be able to take a decisive stance in favor of your own Church, while purporting to decide the case on purely secular grounds.]

In the Timberridge case, the dissenters included Presiding Justice George H. Carley, who had recused himself from the Christ Church Savannah case (perhaps because he is a prominent Episcopalian); he was joined in his opinion by Chief Justice Carol W. Hunstein (I am not certain about the distinction in Georgia between the "Chief Justice" and the "Presiding Justice", but there seems to be one). The third dissenting vote came from a lower court judge, the Hon. Deborah C. Benefield, sitting in the place of Justice P. Harris Hines, who did not participate because he serves as an Elder in the First Presbyterian Church of Marietta.

In contrast, there was but a single dissenter in the Christ Church Savannah case: another lower court judge sitting in the place of the recused Presiding Justice Carley: the Hon. S. Phillip Brown. (Judge Benefield was not on that panel.) Taking the two cases together, we then find the following alignments:

For implied trusts in favor of the national Church in both cases:

Nahmias, J.

Benham, J.

Thomas, J.

Melton, J.

For an implied trust in the Christ Church case, but not in the Timberridge case:

Hunstein, C.J.

For an implied trust in the Christ Church case (did not participate in Timberridge):

Hines, J.

Against any implied trust in the Christ Church case (did not participate in Timberridge):

S. Phillip Brown (sitting by designation in place of Curley, P.J.)

Against any implied trust in the Timberridge case (did not participate in Christ Church):

Curley, P.J.

Deborah C. Benefield (sitting by designation in place of Hines, J.)

From this lineup, it may be seen how the core majority (Nahmias, Benham, Thomas and Melton) decided, in effect, both cases. The majority opinion in Christ Church heavily relies upon the majority opinion in Timberridge to bolster its decision. (One wonders how Chief Justice Hunstein could join in an opinion [Christ Church] which derives most of its rationale from an opinion [Timberridge] which she refused to join. Since she did not express her views in either case, however, we are left to speculate.) In effect, the following passage from the dissent of Judge Benefield in Timberridge sums up the core majority's slender rationale for finding an implied trust based on the local church's "participation in", and "benefits received from", its membership in the national Church:

There are church property cases decided solely on the national church’s documents demonstrating the grantor’s intent by looking at the beneficiary’s impression of a trust, apparently due to the alleged grantor’s “affiliation” with the national church and the purported “benefits” enjoyed by the grantor thereby. Kemp, supra, at 328-329; Crumbley v. Solomon, 243 Ga. 343, 344-345 (254 SE2d 330) (1979); Carnes, supra. Affiliation with the national church, and purported benefits of it, have not been articulated as a neutral principle of law. Inasmuch as this “affiliation” is not a deed, statute or church document and it is being relied on to demonstrate intent, perhaps it creates a genuine issue of material fact assuming opposing affidavits to the contrary as in this case. . . . Conversely, it is perhaps a judicial acknowledgment that it is insufficient to decide these critical cases on deeds, statutes and church documents alone.

Often the deeds (or land grant) do not establish a trust holding the property for the greater church. See Carnes; Christ Church; Kemp and Crumbley, supra. In determining intent, this is viewed as irrelevant, “neutral”, or in some roundabout way proof of the grantor’s intent. As the majority opinion notes, “[i]t is true that [the deeds do not] show an intent by the grantors to create a trust.” Maj. Op. at 12. When in truth, it was either created or it was not and a review of the deed would quickly demonstrate which was true. The majority continues “[b]ut [the deeds] also do not expressly preclude the creation of one. Given [the provision in the national church’s constitution] Timberridge would have no reason to believe that its deeds needed to recite a trust in favor of the general church...” Id.; see also Christ Church, supra, at 89-90. It would seem just as easily to follow that Timberridge had no intention of creating a trust since they did not provide one in the deeds as they easily could have. What would be the purpose of including language “this instrument does not create a trust” in a deed?

Precisely the question to ask, Judge Benefield -- why would anyone put such language in a deed? And the answer is: "Given the majority's inclination to conclude, from the lack of any such language, that the parties did not positively preclude the imposition of a trust by other means, one is almost forced to recite such nonsense -- if that is what it will take to keep the courts from leaping to a contrary conclusion."

Because the hook by which the majority finds an "implied trust" on parish property is such a slender reed, and is grounded on no writings whatsoever (that is, no writings of the landowner whose property is impressed with a trust by implication), the finding of an implied trust based on evidence of long-standing affiliation (and the presumed "benefits" received therefrom) takes the doctrine of "neutral principles" into uncharted territory, where there are no firm guideposts by which to assess the evidence. And that evidence, as Judge Benefield also notes, is often disputed, and so should preclude these decisions by summary judgment -- where the judges decide the cases alone, without the benefit of fact-finding first by a jury.

Thus the Christ Church decision relies mainly on Timberridge, and the latter relies on -- but what, exactly, does it rely on? Let's listen to Presiding Judge Curley, as he struggles to understand the basis for the majority's decision in Timberridge:

The majority has contrived an opinion which purports to make a thorough examination of the documents relevant to the “neutral principles of law” doctrine and to find the existence of a trust pursuant thereto even though it virtually ignores a necessary element of trusts. That element is the intent of the settlor, which must be ascertained with reasonable certainty for an express trust to exist. [Citation omitted.] Alternatively, it must be “implied from the
circumstances” for an implied trust to exist. [Citation omitted.] Furthermore, even assuming that the majority has appropriately declined to apply Georgia’s generic express or implied trust statutes, the same requirement of the settlor’s intent nevertheless is found in the neutral principles approach, as articulated in Jones v. Wolf, 443 U. S. 595, 603-606 (III) (99 SC 3020, 61 LE2d 775) (1979):
[T]he neutral-principles analysis shares the peculiar genius of private-law systems in general – flexibility in ordering private rights and obligations to reflect the intentions of the parties. . . . [A] religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members. . . . The neutral-principles method, at least as it has evolved in Georgia, requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church. In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. . . . Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. . . . And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.
(Emphasis supplied.)

Thus the whole purpose of the "neutral principles" approach, as the Presiding Justice reminds us, is to ascertain what both parties intended in their arrangement, based on the written evidence which documents that arrangement. Justice Carley then addresses his most withering criticism to the way in which the majority analyzes those documents in Timberridge (with my emphasis added to his words):

The intention of Timberridge Presbyterian Church (Timberridge), as the local church, cannot be discerned by consideration of either the 1982 amendment to the Book of Church Order (BOCO) or the 1983 Book of Order (BOO). To limit judicial consideration in this manner would effectively constitute an inappropriate deference to church doctrine and reliance on religious precepts, or even an attempted return to the unconstitutional “departure from doctrine” approach. [Citation omitted.] Although the majority does consider relevant documents other than BOCO or BOO, it does not articulate what it should be looking for. Where, as here, there is neither a dispositive statute nor any deed with clear trust language, a court must look in other documentation or circumstances for the local church’s intention to create a trust or to consent to trust provisions in national church documents. . . .

The Articles of Incorporation for Timberridge Presbyterian Church, Inc. (TPC Inc.) are a remarkably slender reed on which to hang the weight of the majority opinion. The majority relies upon the Articles’ reference to the definition of “active member” in the Book of Order but fails to quote the whole definition, which reads as follows:
An active member of a particular church is a person who has made a profession of faith in Christ, has been baptized, has been received into membership of the church, has voluntarily submitted to the government of this church, and participates in the church’s work
and worship.
BOO § G-5.0202. This provision is “located outside the property section of the Book of Order.” [Citation omitted.] Like the overall intent of the Book of Order, the purpose of that definition clearly is spiritual. The portion on which the majority relies is that an active member has “voluntary submitted to the government of” the general church. This provision strongly implies in the context that the member has submitted to the authority of the general church only in spiritual matters. [Citation omitted.] See also BOO G-9.0102 (ascribing to the governing bodies of the general church “only ecclesiastical jurisdiction for the purpose of serving Jesus Christ and declaring and obeying his will in relation to truth and service, order and discipline”). Moreover, the definition of “active member” relates only to individual members, and not to local churches or their relationship with the general church. Thus, judicial inquiry into and application of that definition is both irrelevant and constitutionally foreclosed. [Citation omitted.]

Justice Carley then notes the utter lack of factual evidence to indicate an intention on the part of the local Presbyterian congregation to submit to an implied trust on their property. First, their joinder in the union of the national churches was not something under their control:

In the face of the exceedingly weak or non-existent documentary evidence of Timberridge’s intent to hold all of its property in trust for the general church, other relevant documentation and circumstances overwhelmingly prove the absence of any such intent. Timberridge operated for more than 150 years, including over 100 years as a member of the Presbyterian Church in the United States (PCUS), without any property trust provision. . . . It cannot be said that Timberridge voluntarily affiliated with the general church in 1983. The Articles of Agreement providing for the 1983 reunion of the PCUS with the United Presbyterian Church in the United States of America (UPCUSA) mandates that “[e]ach and every congregation of the [PCUS] and of The [UPCUSA] shall be a congregation of the Presbyterian Church (U.S.A.).” Article 1.4. Thus, instead of being required to “opt in,” each local church was automatically part of the new general church and was given eight years to petition for dismissal or to seek an exemption from the provisions of the property chapter of the Book of Order.

Next, the evidence showed that Timberridge did all that it could to avail itself of a provision in the agreement of union which allowed it to "opt out" of the property trust clause in the Book of Order:

Timberridge did not wait eight years, but rather acted in four years. In fact, Timberridge acted just two weeks after the last individual owner conveyed her interest in the land to Timberridge, and the Presbytery was promptly notified as required. More important, Timberridge broadly took “the ‘property exemption’ as provided in the Book of Order (G-8.0700)” and did not limit that notice to a single provision of the property chapter. Most important of all, Timberridge’s notice, regardless of the precise application of that chapter’s language thereto, constituted Timberridge’s only expression of intent with respect to the recently enacted property trust provisions in national church documents. In that prompt notice, Timberridge unmistakably rejected any consent to hold its property in trust for the general church. It is irrelevant that 20 years elapsed thereafter during which Timberridge continued its relationship with the general church until a dispute arose and Timberridge brought suit asserting control of its property. Those circumstances are wholly consistent with the fact that Timberridge, which never expressed any intent to create a trust, was relying on its prompt notice of exemption from property trust provisions as its expression of intent not to create a trust. [Citations omitted.]

Judge Carley goes on to contrast Timberridge's conduct in this regard to that of Christ Church Savannah, which supposedly allowed 30 years to pass without making any objection to the adoption of the Dennis Canon. This is unfair, and shows a lack of appreciation for the inability of the national Episcopal Church to adopt canons which bind individual parishes and dioceses without their consent. General Convention is not the "supreme legislative authority" in the Episcopal Church (USA) -- language which would have made it just that was expressly voted down by the dioceses meeting in General Convention in 1895.

Without any kind of supremacy clause in its Constitution, General Convention can only adopt resolutions and canons which it asks the dioceses and parishes to honor in their day-to-day operations. It takes local bylaws and local canons to implement those requests from General Convention, and implementing them attests to the mutual consent of both parties to the arrangement. But the Dennis Canon was not implemented by any rule or bylaw adopted at the parish level, and the Diocese's own canons contained a provision that preserved the "vested rights" of property owners which pre-existed the adoption of canons.

Thus, in the same way as the dissenters in Timberridge criticize the majority for implying a parish's assent from its long-continued silence in regard to a unilateral proposal by the national church to establish a trust on their property, so the same criticism could be made of the majority's similar finding in the Christ Church case.

In consequence of these two decisions by a four-person core majority on the Supreme Court of Georgia, the law of implied trusts on church property has now come unmoored from any grounding in statute or legal precedent. We are back full circle, to the days when an "implied trust" not to depart from doctrine was the only basis for the courts' decisions -- until the United States Supreme Court banished all such theories of implied trust in the (Georgia!) case of Presbyterian Church v. Mary E. B. Hull Presbyterian Church, 393 U.S. 440 (1969).

The ground for banishing the implied trust doctrine then was that its application entangled the courts in religious doctrine to a degree that was impermissible under the First Amendment. Under it, the courts had to examine which faction in a divided church had kept more closely to the original purposes for which the property on which its building stood had been donated.

But under the present doctrine, the courts are drawn into all sorts of improper speculation about the significance to attach to a member church's "subjecting itself" to the "governance" of a national church -- including to the point, apparently, of conceding to that national church the power to impose unilaterally a trust on the member's property! In order to find such an extraordinary cessation of power, one would think that the evidence of the parish's intent would have to be extremely conclusive. As Judge Benefield points out in her dissent, however, that is not the case under the standard applied by the majority (with my emphasis added):

Despite this, the majority in the case sub judice states their decision is “based ... on the sort of legal materials ‘familiar to lawyers and judges,’ embodied in a ‘legally cognizable form,’ and having nothing to do with the church’s religious doctrine,” quoting Jones v. Wolf. . . . In what non-church property case is the grantor’s intent found solely in a self-serving document created by the grantee determined to be a “legally cognizable form”?

Calvin Massey’s quote in the Kemp dissent goes on to provide:
This is ... the ... extraordinary power to seize property by divesting others of their beneficial interests in the property ... Donors of property to local churches are not necessarily members of the hierarchical church. Such donors have no assurance that their intent to transfer property in trust for the exclusive benefit of the local church, and not the hierarchical church, will be honored. All the general church would need to do is alter its own internal governing instruments to nullify the explicit intentions of donors.

Precisely again, Judge Benefield -- you have touched upon the central nerve of this entire problem. For if national churches can unilaterally, through their so-called "democratic" processes, cancel the intent of individual donors that their gifts stay with the local parish, then those donors will simply stop giving anything to their local parishes. I have yet to see a single Episcopal Church (USA) case in which the dissenters wanting to stay in ECUSA formed the majority -- in every published case, they were the minority. And in practically every such case to date, as well, the minority is simply too small to maintain, pay for and sustain "their" church property. As a consequence, the Diocese has to step in and subsidize the parish's operations, or else leave the church building vacant, or put it on the market for purchase by anyone except the majority who was forced to leave it.

This doctrine makes absolutely no sense to any generous-minded donor, and in the long run, it will seal the fate of the Episcopal Church (USA). No new churches will be built with donated funds, and those churches that remain will have fewer and fewer members over time, since nothing they can do locally will assure them that the building in which they worship is truly theirs. That is why the Dennis Canon is ECUSA's Trojan Horse, and why the next General Convention should abolish it -- if it genuinely wants the Church to grow, rather than shrink.

The Quiet Tribulations of a Christian Candidate for President

2011-11-22T00:01:00.000-08:00

I am far from choosing a favorite candidate for president. Yet I could not help but be struck by the series of videos shown below, which I never would have seen had my source for Presidential campaign news been the usual (mainstream) media.

Please do not mistake my purpose in showing these videos. I am not pushing a particular candidate (yet) for President. What I would like you to learn from these videos is exactly how encouraging and refreshing a Christian worldview can be in the very midst of secular politics. It is a view that never flinches from telling the unvarnished truth -- whether about oneself, or about others who are getting all the attention.

With those caveats firmly in mind, you should now watch this perfectly articulated response to the entire "Occupy ____ " movement (fill in the blank with a location near you):

And having delivered that resonant message, the candidate next allowed himself some Christian candor, as you will experience about three to four minutes into following video:

The candidate was also asked why the current secular media so attacks and persecutes any public figure who dares to confess his religious faith as a part of a campaign for office. In response, he unassumingly instructed his questioner by drawing on his time spent in the classroom, as a professor of history:

Now, before all the partisans pile on with their comments, I would like to be permitted this one observation. Newt Gingrich is decidedly a sinner, no better and no worse (a sinner, that is!) than most of us. His track record still makes a lot of people very angry. To the extent, however, that anger about Gingrich's past doings spills over into one's judgment about the current crop of presidential candidates, I would urge a good deal of careful, and measured, response to those inclinations. "Judge not, lest ye be judged"; or perhaps, "There, but for the grace of God, go I."

I see very few in the race who are as willing as Newt Gingrich now is to speak to an election-year audience the plain, Christian truth about any topic. Rather than admit their faith-based perspective, most candidates dance around their religion, or shy away from any probing inquiry, because of legitimate fears for how any honest response will be treated in the secular media. But those candidates, I suggest, are the ones who are truly uncomfortable with their faith, who are in need of assistance to be able to integrate their religion with their public life, and who therefore, in my view, are not yet ready for high public office.

I would rather have, any day, an avowed and repentant Christian for a political leader than I would someone who still thinks they can do it all on their own -- with (of course) what they estimate will be sufficient (but even so, only secular and human) help.

As I say, the race is still young, and doubtless there are many surprises ahead. At this stage, I am simply expressing a word of appreciation for a candidate who can sincerely articulate, unabashedly and in public, his faith and the confidence it gives him, while knowing that there are many who have yet to forgive him his past transgressions. The proper response in that situation is a sincere Christian humility, and I think Newt Gingrich in his latest appearances is exhibiting such a response. And for that, I can be thankful -- no fellow Christian should wish for anything less.

Georgia Supreme Court Awards Christ Church to Diocese on Implied Trust Theory

2011-11-21T05:26:00.000-08:00

The Supreme Court of Georgia, in a 45-page decision which no doubt was lengthened by having to respond to a 96-page dissent, has decided the appeal of Christ Church, Savannah against the majority which voted to leave ECUSA and the Diocese of Georgia in 2007, and to award the property (four parcels, the first and principal one of which was granted to the local parish by the colonial authorities in 1758) to the minority who chose to remain in ECUSA.

The majority opinion goes to great lengths to justify its finding that the property of Christ Church was impressed with an implied trust in favor of the Diocese and the national Church through the parish's acquiescence in the national Church's Constitution and Canons over the years, as exhibited by their reaffirmation of those documents in 1981, when they received a new State charter. The dissent offers a treatise on why that cannot be the case, especially given that the national Church did not express its trust on church properties via an amendment to its Constitution, as Jones v. Wolf held (in dictum) it could do, but through a simple amendment to its Canons.

At the same time, and in a 4-3 split, the same Court, in an opinion authored by the same Justice (Nahmias), reversed the decision by the Georgia Court of Appeals that the Timberridge Presbyterian Church had successfully prevented, by its resistance to, and "opting out" of, its national Church's trust provision, the imposition of a trust on its property. (I had criticized the inconsistency between the two opinions of the Court of Appeals in this earlier post.)

With hundreds of pages of legal opinions to digest, I cannot present more than these brief observations at this point. In due course, I will put up a longer treatment of these two important decisions.

Trojan Horse Sent Packing from South Carolina

2011-11-19T13:31:00.000-08:00

As I have remarked on many occasions, the Dennis Canon, probably (but not definitely) enacted at General Convention 1979, is the Episcopal Church (USA)'s Trojan Horse. Sneaked in under everyone's radar at the last possible minute, it lay dormant for over twenty years before suddenly unleashing its hidden forces to go out and attack unsuspecting parishes. Unable to accomplish anything by itself, it needed the assistance of various State courts and legislatures to achieve its results. And in the process, it has cost the Episcopal Church alone over Twenty-Five Million Dollars, and tens of thousands of lost parishioners, hundreds of parishes, and four entire dioceses. A Trojan Horse, indeed!

Now comes word that the ugly beast has been definitively and decisively banished from the Church's Diocese of South Carolina. After receiving a crippling wound last September from that state's Supreme Court, the creature was sent finally packing by the Diocese and its bishop, when last week they mailed out quitclaim deeds to every single one of their incorporated parishes. The legal effect of such deeds was that the Diocese gave up and released any and all claims ("quit its claim" -- hence "quitclaim deed") it may have had, from whatever source or reason, and however long ago acquired, in those parish properties. Chancellor Wade Logan explained:

For 190 years (1789-1979) there had never been any idea that somehow the parishes did not completely and fully own their property. Our Supreme Court has now said that the attempt to change that in 1979 by the General Convention was not binding on the parish of All Saints, Pawley's Island, SC. In recognition of that ruling, and in continued pursuit of our historic unity based on common vision rather than legal coercion, the Diocesan Convention removed the relevant section from our canons in October 2010. The issuance of these quitclaim deeds lays to rest any lingering issue that may exist for some parishes when they seek to obtain title insurance or secure bank financing for parish projects. Parishes may choose to file them or not based on their individual needs. We trust this action will enable parishes to freely exercise their rights and responsibility to oversee that which God, through the faithfulness of prior generations, has bequeathed to them.

The usual suspects are muttering imprecations against Bishop Lawrence as a result of this brave deed. They of course have to see it as betraying the Episcopal Church (USA), instead of strengthening it. Incredibly, they also see Bishop Lawrence as having made a multi-million-dollar "gift" to the parishes of their own properties! (Apparently they considered that "they" -- the Diocese and the Episcopal Church, and by projection the group of dissenters who is doing all the complaining -- as good as owned them. Well if that was the case, why didn't "they" contribute a single penny to their upkeep? Hypocrites never change, because they are incapable of seeing what everyone else can see.)

"Wait -- how did giving up all its Dennis Canon claims strengthen the Church?" you ask. "Didn't that act make it easier for parishes to leave the Diocese? And won't the Diocese (and the Church) be that much weaker when the Dioceses leave?"

The answer is simple, but first let me switch my metaphors for a moment. Think of the Dennis Canon as a set of chains which ties parishes to their Diocese. In most Dioceses, parishes know that if they try to cut those chains, their Diocese will go after them in court, and try to get the court to award them everything the parish has -- its buildings, altar cloths, bank accounts, candlesticks and anything else that can be itemized as belonging to that parish. In that way, the Dioceses try to make the penalties for breaking the chains too severe for the parishes even to contemplate such an act.

Now think about that image for a moment. What kind of church needs to be held together by chains? Remember that fine old prayer which used to be recited every Sunday? We prayed:

. . . More especially we pray for thy holy Church universal; that it may be so guided and governed by thy good Spirit, that all who profess and call themselves Christians may be led into the way of truth, and hold the faith in unity of spirit, in the bond of peace, and in righteousness of life.

That's right -- a church is held together by unity of spirit and the bond of peace. It emphatically cannot be kept together by chains and shackles. Thus, by removing the shackles of the Dennis Canon in the Diocese of South Carolina, the Episcopal Church in that Diocese is now strengthened by its parishes being allowed to come together, not because they are compelled to, but because they are free to come together, to be "led into the way of truth, [to] hold the faith in unity of spirit, in the bond of peace, and in righteousness of life."

As for parishes who wish to leave, nothing the Diocese did or did not do could stop them, after the Supreme Court's decision in the All Saints case. They have been free to leave ever since last September, yet none has done so. The only thing that would have reinstated the chains and shackles after that ruling would have been to force each parish to sign a deed of its property putting it into a trust for the benefit of the Diocese and ECUSA. And if the Diocese could have managed that feat, then the Church never needed to pass the Dennis Canon in the first place.

You see, that is why the Dennis Canon was sneaked through as a last-minute and little-noticed change to the canons: it could take effect immediately, without anyone's being aware of it (except the Rt. Rev. Walter Dennis himself). Had they tried to make it a change to ECUSA's Constitution, it would have had to undergo a three-year vetting process in each and every Diocese, and then come back to General Convention for another vote.

Those who shuffled the Canon under the noses of the deputies at the last minute knew exactly what they were doing: they knew they could never have gotten the parishes' voluntary consent to such a drastic provision if they had to wait three years to ask each and every one of them. So they changed the Canons instead, which required only a quick voice vote (the records of which are now permanently lost from the Archives).

There are those in the Church today, however, who still prefer using the threat of force, and chains and shackles, to keep the parishes so firmly tied to the ecclesiastical structure that they could never think of trying to leave. For them, their abstraction of a Church is a thing in itself, which demands unswerving allegiance by all who call themselves Episcopalians. It also demands all of their Church property, forever.

Remember the oral argument of the Episcopal Church Cases in the California Supreme Court? Justice Baxter asked ECUSA's attorney, Heather Anderson, to imagine a parish which was considering joining the Episcopal Church, but which wanted to be certain it could keep its valuable property in the event the arrangement did not work out. What could such a parish do, he asked, if it wanted to avoid the Dennis Canon but still belong to the Episcopal Church?

Her answer came after an awkward pause, but then it was firm and clear: "The only option would be for that parish not to join the Episcopal Church." And in those fourteen words you will learn all you need to know about the collectivist philosophy of those want to uphold the Dennis Canon: "Join our Church, and everything you have will become ours forever."

As this feature of today's ECUSA becomes more and more known, there will be fewer and fewer new churches established and built within ECUSA, because what donor wants to see the fruits of his or her donation taken over by some bishop and sold, perhaps, to become a mosque? Or, just as worse, sit around empty and forlorn, when those who built it and kept it up could still be using it? It is no wonder that ECUSA's numbers are steadily dwindling -- one reason is that there are not very many new churches being built, thanks again to the Dennis Canon, and the parishes which already belong to a Diocese are getting smaller, instead of larger. Take away the congregation's impression that they own the buildings which they pay so much to maintain, and you find them not so eager to contribute any more.

The Diocese of South Carolina is one of the few mainland dioceses which is actually growing, and not shrinking, so it must be doing something right. Confirming to its parishes that they won their property free and clear is one of those things. (The Diocese of Upper South Carolina was also freed of the chains of the Dennis Canon by the South Carolina Supreme Court's decision, as well. In 2003 they entertained a resolution which would have abolished the Canon, but did not pass it. They might want to reconsider.)

This next Monday, at 8:30 a.m., the Georgia Supreme Court will post its much-awaited decision in the Christ Church Savannah case. We will then learn if the Dennis Canon trumps even the magnificent heritage of Georgia's Mother Church, which predates the founding of ECUSA itself by half a century. If the petty tyrants prevail, watch out for the chains to tighten, and for the forces of intimidation and fear to revel in their grip.

But if the Georgia Supreme Court follows South Carolina's lead, there will be another entire State's Episcopal parishes set free from their bondage, with the ability to breathe once again, and concentrate on their mission, rather than live in fear of losing their properties.

Can You Just Imagine the Headlines?

2011-11-16T22:39:00.000-08:00

The following is a real, live quote from a person running for President of the United States in 2012, at a recent fundraiser:

"Don't compare me with the Almighty; compare me to the alternative."

???

??????

Really? The "alternative" to the Almighty Himself?

Now, if you haven't seen any front-page stories or headlines about this statement, that should be a clue to the identity of the person who actually said it -- you guessed it:

Barack Obama.

He said it at a recent fundraiser in affluent Woodside, California, for which the minimum entry fee was $35,800. (Scroll down to the very end of the story to get the quote, which is repeated without the slightest sense of sarcasm or irony, or even awareness of the implications, because this is the New York Times, reporting an Obama fundraiser.)

But can you imagine the headlines had Governor Rick Perry, or -- heaven forbid -- if Herman Cain had said something like this at a fundraiser?

"Satanic Candidate Finally Admits His Connection"

"Freudian Slip Tells Us All We Need to Know about Cain"

And so on, and so on . . . but all we get in the official state news organs is silence. (Try Googling the quotation on Google's News site.)

Now let me give you one more recent sample of the mainstream media's double standard. Take a look at this recent quote, and see if you can guess who said it (hint: it's a television newscaster).

"[W]e thought we'd bring you up to date on those protesters, the Occupy Wall Street movement. As of tonight, it has spread to more than 250 American cities, more than a thousand countries, every continent except Antarctica . . ."

Really, again? "More than a thousand countries" on every continent except Antarctica?

The United Nations started out with 51 members in 1945; as of 2011, its membership had grown to 193. Even if you try to count Palestine and Taiwan, you still could not break 200, let alone a thousand.

So who made that fatuous statement on network TV? Was it Sarah Palin on the Fox News Channel, perchance?

Decidedly not. If so, one could just imagine the next day's headlines and TV commentaries:

"In her latest gaffe in front of national news cameras, Governor Palin once again demonstrated her unreadiness to serve in national office, with an appalling lack of knowledge about the number of countries in the world . . ."

Or once more, if it had been Herman Cain?

"Cain Again Demonstrates His Ignorance of Foreign Affairs"

Well, since you didn't see anything like those stories or headlines, just who was it who demonstrated such monumental ignorance in front of the news cameras -- and got away with it?

Are you ready?

Here's the video:

No, there's absolutely no bias in the national news media.

None whatsoever.

"A Call to the Light": The Case for Inhibiting the Presiding Bishop

2011-11-14T00:01:00.000-08:00

With the extremely disturbing news about the long-standing cover-up that went on over sexual abuse of young men by an assistant coach at Penn State University, it is very instructive to compare the reaction of the University after the story came out to that of the House of Bishops concerning the revelations, on numerous blogs (Catholic and Episcopalian), concerning the Presiding Bishop's own cover-up of her actions while serving as the Bishop of Nevada.

Let me be perfectly clear: the two situations are not precisely parallel, because the sexual abuse of young men went on under the noses of the responsible officials at Penn State University, who studiously ignored bringing the abuser to account, or reporting him to the police. In contrast, and at least as far as we now know, Father Bede Parry did not commit any sexual abuse of minors under the nose of Bishop Katharine Jefferts Schori.

But there -- with one big exception, which is the point of this post -- the dissimilarities between the two cases end. For it is now undisputed that Bishop Jefferts Schori learned early on, from Bede Parry's own former Abbot, that he was a multiple-count abuser who could not continue to function as a Catholic priest (or monk) because he had "a proclivity to reoffend with minors." And she learned of this fact before she decided to receive him into her Diocese as an Episcopal priest.

[UPDATE 11/18/2008: At long last, and far too late to stem the damage, the Presiding Bishop has decided to favor us with a statement explaining her version of the facts. As others have already observed, the statement appears to have been carefully vetted by the Presiding Bishop's personal attorneys (both in-house and outside counsel -- but the latter her personal Chancellor) to avoid any inadvertent admissions of those matters which no one yet can prove, and of which she herself would be the most knowledgeable. She also indicates that this will be her one and only statement on the matter, since she refers all further inquiries to the current diocesan of Nevada, the Rt. Rev. Dan Edwards.

From this Curmudgeon's point of view, her statement just adds more fuel to the fire, because it conceals more than it answers -- as I shall demonstrate in detail in a future post. For now, the main thing to note is that it puts her against the current accounts of both former Father Parry, who admittedly is a confirmed liar (now trying his best, one assumes, to repent of his past and make amends for his sins), and his former abbot. The latter -- who had no reason whatsoever in 2002-2003 to hide or to distort the truth, and who has even less of a reason to do so now -- has strongly affirmed that he informed Bishop Jefferts Schori of the fact that Bede Parry had been found to have "a proclivity to reoffend."

That particular phrase redounds, because it echoes the wording of the specific conclusion of the Roman Catholic Church's psychological evaluation in 2000 of Fr. Bede Parry -- a conclusion which sealed his fate, as concerns his being allowed to remain a priest (or even a monk) in the RCC. For Abbot Polan to say (as he did just last May, in the presence of three witnesses) that he told Bishop Jefferts Schori in those very words of that conclusion, is to put his testimony squarely at odds with the Presiding Bishop's latest (and only) statement on the matter, linked above.

For the present, therefore, we have two directly contrary reports of what actually happened when Bishop Jefferts Schori made background inquiries into Fr. Bede Parry's trajectory as a Roman Catholic priest. What that contradiction necessarily entails, however, is that one of the two of them (Bishop Jefferts Schori, or Abbot Polan) is now lying. I leave it to the intelligent reader to conclude who has at this point the greater motivation to prevaricate under these circumstances. The only significant question remaining, in my view, is whether or not this incident will finally provide the impetus for a full and thorough investigation into the reception of Father Parry by Bishop Jefferts Schori.]

Therein lies the chief similarity between the two cases: Both the officials at Penn State University and at the Diocese of Nevada (including its Standing Committee at the time, and its Commission on Ministry, as well as its Bishop) made an apparent decision to ignore the offender's history, and to place (or leave) him in a position where he would be free to continue his abuses, if he was so inclined (notwithstanding supposed "restrictions" on his ministry, which were soon forgotten altogether).

The chief dissimilarity between the two cases, however, lies in seeing how the two institutions reacted to the news of this decision to hire (or to retain) a self-convicted pederast, once the news of that decision became public. The University fired not only the offender, but also his supervising head coach, an 84-year-old figure otherwise beloved in college football for his record number of winning seasons. And the University's President, to whom the charges had also been reported, but who had chosen not to take them to the police, was fired as well.

But as for the Episcopal Church (USA)? The former Bishop of Nevada, who now serves as the Church's Presiding Bishop, has had not one public word to say about her decision to receive Bede Parry as an Episcopal priest. The Diocese of Nevada, in its turn, has published a statement assuring everyone that the canons were "meticulously followed", but which ended up raising more questions than it actually answered.

In short, it is the University which has acted in a more open and Christian manner than one of the chief Christian churches in the United States. The University chose to "walk in the light", as St. John put it in his first-century letter to other early Christians (highlighted so appropriately by the Rev. Canon Philip Ashey in the introductory video), and to let the chips fall where they might -- even if it meant the dismissal of one of its very best football coaches ever. The Episcopal Church (USA), in contrast, continues to stonewall further investigation or questioning, and decidedly has not chosen to "walk in the light."

In this post, I want to call out my own Church, so that it may choose to walk in the light on this topic rather than opt for continued darkness, and so that it, likewise, will let the chips fall where they may.

The Church, acting through its own disciplinary bodies, should inhibit its Presiding Bishop from further exercise of her office and functions until she has made a clean breast of all the factors surrounding her decision to receive Bede Parry, a confessed sexual offender and demonstrable liar to her face, as a priest in her Diocese. Although the Diocese's Commission on Ministry, and Standing Committee, each had specific roles to play at specific times in the reception process, it remains a fact that in the final analysis, the decision to receive him as a priest was hers, and her decision alone.

Those of us looking at that decision in light of what has since been uncovered, however, have to ask: What evidence possibly could have amounted, in the view of Bishop Jefferts Schori, to a convincing documentation of his "godly and moral character", or have shown that "[his] departure . . . from the Communion to which [he previously] belonged has not arisen from any circumstance unfavorable to moral or religious character"? (I am quoting from the 2003 version of Canon III.11, which ostensibly applied to Bishop Jefferts Schori's decision at the time.)

And if those obvious discrepancies between canon and deed in 2004 were not enough, we have now learned from Bede Parry himself that he had voluntarily cooperated in his dismissal from the Catholic priesthood before he was received as a priest by Bishop Jefferts Schori! Don't even try to think how a former Catholic priest, defrocked for sexually abusing young men, could begin to qualify for reception as a functioning priest in the Episcopal Church. Instead, take a look at the constitutional and canonical provisions to which both he and Bishop Jefferts Schori were subject at the time. Canon III.11.1 (a)(2) required that Fr. Parry supply "[e]vidence of previous Ministry and that all other credentials are valid and authentic" (emphasis added). Yet he confesses that in 2002 he was being dismissed from his orders, and would not have been allowed to remain as a priest in the Roman Catholic Church -- he was not even a suitable candidate to be a monk in a monastery.

"Evidence of previous Ministry" would have been no problem -- Fr. Parry would have to produce only his ordination papers in the Roman Catholic Church, which would have shown that he had been validly ordained as a priest in 1982.

The "other credentials" of which the Canon speaks are not defined. Taking the words in a canonical sense, however, they would be something akin to "letters dimissory" --- credentials from a bishop given to a priest when he leaves that bishop's jurisdiction, and certifying that he served in good standing, and is not departing for any reasons having to do with his moral character. If one thing is certain in this mess, it is that no Catholic bishop or abbot would have given Bede Parry such credentials on his departure from the Catholic Church. Given that fact, what could he have used to prove his prior "good standing" in the Catholic Church when he applied to Bishop Jefferts Schori for reception into the Episcopal Church? She and her Standing Committee must have seen some sort of evidence on that point; otherwise, they could not properly have given him the preliminary certificates of acceptance required by Canon III.11.3, since he went on and was finally received in 2004. How, then, could he have even qualified for such acceptance under Canon III.11.3 in the first place?

Here is a list (in italics) of all the things which that Canon required in 2003 that Bede Parry submit to Bishop Jefferts Schori, as a prerequisite for his even being considered for Episcopal priesthood (my comments and observations are in square brackets):

(1) Evidence that the person is a confirmed adult communicant in good standing in a Congregation of this Church [he would have supplied evidence from his employers at All Saints in Las Vegas];

(2) Evidence of previous Ministry and that all other credentials are valid and authentic [as noted, he easily could have produced proof that he was validly ordained by the Catholic Church in 1982, but that is all; as argued above, he certainly would not have had any kind of certificate or credentials attesting that his departure from the Church had not been for any reasons touching upon his moral character];

(3) Evidence of moral and godly character; and that the person is free from any vows or other engagements inconsistent with the exercise of Holy Orders in this Church [after his dismissal from the Roman Catholic Church, he certainly would have been "free from any (such) vows or engagements," but evidence of the reasons for his dismissal would at the same time have negated any previous submissions of his "moral and godly character" making him fit to be a priest];

(4) Transcripts of all relevant academic and theological studies [this would have required him to submit a transcript from St. John's College of Theology in Minnesota, where he had been briefly suspended for sexual misconduct, and required, as a condition of graduation, to take sexual abuse counseling];

(5) A certificate from at least two Presbyters of this Church stating that, from personal examination or from satisfactory evidence presented to them, they believe that the departure of the person from the Communion to which the person has belonged has not arisen from any circumstance unfavorable to moral or religious character, or on account of which it may not be expedient to admit the person to Holy Orders in this Church [again, such a certificate must have come from his employers at All Saints in Las Vegas -- but if it had been submitted, it would serve only as evidence that he had lied to them about his background in order to be hired, because it was contradicted by Abbot Polan when he talked to Bishop Jefferts Schori];

(6) Certificates in the forms provided in Canon III.8.6 and III.8.7 from the Rector or Member of the Clergy in charge and Vestry of a Parish of this Church [these would again have come from All Saints in Las Vegas, showing their support for his application]; and

(7) A statement of the reasons for seeking to enter Holy Orders in this Church [such a statement would have focused on the need for additional clergy at All Saints, but probably said nothing about the reasons Bede Parry had been ousted from priesthood in the Roman Catholic Church].

And those requirements assume, as we have seen, that Bede Parry had been serving for at least five years as a Minister "in good repute" in the Roman Catholic Church, and so would have no trouble in supplying all the evidences required of his "godly and moral character." Canon III.11, however, is for receiving, as its title states, "Priests and Deacons Ordained in Churches in the Historic Succession but Not in Communion with This Church." It emphatically cannot apply to priests or deacons who have been defrocked by that other church on grounds of immorality, and who hence could not ever establish their "godly and moral character."

Yet all the evidence is that Bishop Jefferts Schori proceeded to issue to him a certificate of his acceptability, and then, after more than a year, to receive him formally under Canon III.11 as a priest in good standing in her Diocese. How could this possibly amount to what the current Bishop of Nevada (the Rt. Rev. Dan Edwards) has described as "meticulously follow[ing] the applicable canons"? Bishop Edwards expressly references Canon III.11 as the one which Bishop Jefferts Schori "meticulously followed" -- but as we just saw, that Canon applies only to persons who, at the time of their application to be admitted to Episcopal orders, had "with success" practiced their previous Ministry "for at least five years with good repute", and thus had good credentials to present at the time of their application.

If Bishop Jefferts Schori received Bede Parry under the provisions of Canon III.11, as Bishop Edwards says she did, then she was either grossly negligent, or mightily deceived -- but she could have continued in that state only until she talked with Fr. Parry's former Abbot. That conversation alone, confirmed by Abbot Polan himself, should have raised enough red flags to require a complete reappraisal of Bede Parry's application -- with a resulting determination that he could not be received under Canon III.11, since he could not, with his background, satisfy its requirements. (Being caught lying about one's background in an application, and on such a material matter, should have negated any prior submitted proofs of "godly and moral character" on the spot.)

It is high time, therefore, for charges to be brought against Presiding Bishop Katharine Jefferts Schori for violating the Constitution and Canons of her Church in the matter of Bede Parry, while she was the Bishop of Nevada. (The current disciplinary canons cover offenses committed up to ten years ago, provided that they were offenses so punishable at the time they were committed. Article VIII of ECUSA's Constitution read the same in 2003-2004 as it does now, so the "same offense" requirement is easily satisfied. See the further note on the statute of limitations below.)

Under Article VIII of ECUSA's Constitution, as in effect both in 2003 and now, Bishop Katharine Jefferts Schori, as the diocesan bishop and Ecclesiastical Authority in the Diocese of Nevada, was required to see that

No person shall be ordered Priest or Deacon to minister in this Church until the person shall have been examined by the Bishop and two Priests and shall have exhibited such testimonials and other requisites as the Canons in that case provided may direct.

As we now see from his public admissions on the record, there is simply no possible way that Bede Parry could ever have validly "exhibited the testimonials and other requisites as the Canons . . . may direct" -- including valid and authentic credentials of having been a Catholic priest in good standing, whose departure from that Church was not due to any "circumstance unfavorable to [his] moral or religious character . . .". Another part of the Canon (section 2) also required Parry to supply evidence that he had "exercised a ministry in his previous Church with good repute and success for at least five years . . .". Once again, it would be highly revealing to see what the evidence of "good repute" was which convinced Bishop Jefferts Schori -- especially after she had spoken with Bede Parry's former Abbot, and he had warned her of Fr. Parry's prior offenses and his "proclivity to reoffend with minors."

Just in case the Constitutional prohibition against receiving someone like Bede Parry as an Episcopal priest was not clear enough at the time, there was another paragraph (the fourth) in that same Article VIII which should be brought to bear here. It declares, in relevant part (with emphasis added):

If any Bishop . . . confers ordination as Priest or Deacon upon a Christian minister who has not received Episcopal ordination, the Bishop shall do so only in accordance with such provisions as shall be set forth in the Canons of this Church.

Bede Parry had not "received Episcopal ordination" when Bishop Jefferts Schori welcomed him as a priest into her Diocese at its annual convention in the fall of 2004. By doing so, however, she effectively allowed him to function as a priest canonically resident in her Diocese, just as though she had ordained him -- without requiring that he first satisfy all the canonical requirements to be ordained an Episcopal priest. In other words, even if Bede Parry had come to her initially as a candidate for the priesthood, she never could have begun his ordination process lawfully under the Canons, given his previous record of abusing young males. Her licensing of him, despite his disqualification to be ordained, and especially despite his having lied to her, was thus a second violation of Article VIII, as quoted above.

And we are not done yet. For Article VIII goes on to provide, in its next and fifth paragraph:

No person ordained by a foreign Bishop, or by a Bishop not in communion with this Church, shall be permitted to officiate as a Minister of this Church until the person shall have complied with the Canon or Canons in that case provided . . . .

Once again, this provision applied equally well to the case of Bede Parry, who had been previously ordained "by a Bishop not in communion with this Church." Despite his lying to her in his application, and despite all of his other disqualifying conduct, as cited above, she nevertheless "permitted [him] to officiate as a Minister of this Church" without first complying with all of the applicable canons, in direct violation of ECUSA's Constitution. This violation is the most blatant and direct of the three, because it focuses on just the licensing of Bede Parry in the Diocese of Nevada.

There are thus three Constitutional violations which can be laid at the feet of the Presiding Bishop over her conduct in the Bede Parry case:

1. In violation of the first sentence of Article VIII, Bishop Jefferts Schori gave Episcopal recognition to, and revived in the Episcopal Church, the priestly orders of Bede Parry when the evidence and testimonials he gave to her, and to the diocesan Standing Commission, must have been false. At best, he must have concealed from them the most important facts about his prior abuses -- about which Bishop Jefferts Schori had specifically been advised and warned -- and the consequent reasons for his having been forced out of the Roman Catholic Church in disgrace.

2. In violation of the fourth paragraph of Article VIII, Bishop Jefferts Schori recognized Bede Parry's priestly orders without having complied with the canons for ordaining someone who had not previously been ordained in the Episcopal Church.

3. In violation of the fifth paragraph of Article VIII, Bishop Jefferts Schori licensed Bede Parry to function as a minister in her Diocese without requiring him to comply honestly with all the provisions of Canon III.11 as then in effect.

The new Title IV imposes a two-year statute of limitations on any proceedings for "knowingly violating or attempting to violate" the Church's Constitution and Canons. However, we have it on Bishop Edwards' word that the above offenses were not willful offenses, because every attempt was made to "follow the canons meticulously." Instead, the violations described above -- consisting either of gross negligence or reckless disregard -- would come under the following language of new Canon IV.4.1:

1. (a) . . . [A] Member of the Clergy shall:
. . .
(g) exercise his or her ministry in accordance with applicable provisions of the Constitution and Canons of the Church and of the Diocese, ecclesiastical licensure or commission and Community rule or bylaws . . . .

For violations of this section, the statute of limitations under Canon IV.19.4 (a) is ten years, and so the period will not expire until October 2014. Under Canon IV.3.3, any such violation "must be material and substantial or of clear and weighty importance to the ministry of this Church." Given the substantial emphasis on screenings for sexual abusers in 2003, however, as I detailed in this earlier post -- and given the role which Bishop Jefferts Schori herself played in promulgating new standards for her Diocese in that same year -- she could hardly assert now that her handling of Bede Parry's application was not "material", or of "clear and weighty importance to the ministry of this Church." In effect, she was substantially involved in seeing comprehensive standards for such screening put into place, and then promptly turned around and ignored those standards in order to receive Bede Parry as a priest.

Another noteworthy addition to the catalog of offenses under the new disciplinary Canons is this section of Canon IV.1:

1. (a) . . . [A] Member of the Clergy shall:
. . .
(f) report to the Intake Officer all matters which may constitute an Offense as defined in Canon IV.2 meeting the standards of Canon IV.3.3, except for matters disclosed to the Member of Clergy as confessor within the Rite of Reconciliation of a Penitent;

Under this new provision, therefore, any bishop, priest or deacon in the Episcopal Church (USA) who becomes aware of these facts constituting a probable violation of Canon IV.4.1 (g) by another bishop must report them to the appropriate Intake Officer for disciplinary matters concerning bishops -- and if they do not, they will have committed a violation of the Canons of their own! In this case, the Intake Officer for bishops is the Rt. Rev. F. Clayton Matthews, of the Church's Office of Pastoral Development, in North Carolina. (His physical address and "800" telephone number are at the link just given.)

Under the new Title IV, Bishop Matthews must conduct an inquiry into the charges, and must make a report to the Reference Panel of the Disciplinary Board for Bishops, which in the Presiding Bishop's case, consists of Bishop Matthews, Bishop Dorsey Henderson (the President of the Disciplinary Board), and Bishop Dean Elliott Wolfe, who, as Vice President of the House of Bishops, is designated by Canon to function in the place of the Presiding Bishop when she herself is the subject of disciplinary charges. The charges against her cannot be dismissed in the first instance, unless Bishop Wolfe agrees with Bishop Matthews to dismiss them, and the complainant is notified of that fact (so that he or she may appeal to Bishop Dorsey Henderson, the President of the Disciplinary Board).

If it appears to a majority of the Reference Panel that the charges need to be investigated further, they may refer the case to their appointed Investigator to look into the matter and deliver a full report. Based on that report, the Reference Panel then votes how to proceed further -- to dismiss the charges, to issue a "pastoral directive" to the Presiding Bishop, or to refer the charges to a Conference Panel, as I discussed in detail in this earlier post. But the main thing which Bishop Wolfe (and only Bishop Wolfe can make this call) can do is this, according to Canon IV.7.3:

If at any time the Bishop Diocesan [in this special instance, referring to Bishop Wolfe] determines that a Member of the Clergy may have committed any Offense, or that the good order, welfare or safety of the Church or any person or Community may be threatened by that member of the Clergy, the Bishop Diocesan may, without prior notice or hearing, (a) place restrictions upon the exercise of the ministry of such Member of the Clergy or (b) place such Member of the Clergy on Administrative Leave.

If Bishop Wolfe, therefore, cannot convince the Presiding Bishop privately that she should make a full and fair public statement accounting for her actions in the Bede Parry case, such that everyone could judge whether or not she followed the 2003 Constitution and Canons "meticulously", then he should proceed to inhibit her from acting as Presiding Bishop until she does so, and until the Conference or Hearing Panels of the Disciplinary Board reach a decision as to how to proceed in her case.

Much will depend on how the Presiding Bishop answers these charges against her. She has it in her power to give a full and public explanation, to make an appropriate apology, and to state just what went wrong and to accept responsibility. But unless and until she does so, she is not fit to be sitting in judgment of other bishops' alleged violations of the Constitution and Canons of ECUSA.

Common Sense Has Died; No Services Scheduled (Too Few Mourners)

2011-11-12T08:28:00.000-08:00

[Note: This piece appeared a while back in our local paper. Since it is a very good read, I am posting it for your entertainment while I work on some weightier posts to come. ;>) ]

Someone sent me a little missive out of London mourning the death of Common Sense.

It was sad to hear, as citizens and government leaders today debate issues whose solutions would be obvious if Common Sense still had a pulse. It didn't say exactly when Common Sense kicked the bucket, or get into much detail on the cause of death. I'm guessing he died from loneliness and that his death was excruciatingly painful. We all need social interaction to help feed our spirit and nobody seemed to be paying much attention to Common Sense.

We need look no further than Sacramento and Washington, D.C., to see evidence of neglect and abuse of Common Sense.

In his absence, our government leaders have felt compelled to pass laws that would otherwise be obvious if Common Sense were still around. He would know without being told, for example, that you shouldn't stand on an oven door to reach for a box of cereal, or that it would be a great idea to wear a helmet if you drive a motorcycle 100 miles an hour in a forest.

I'm guessing he'd also suggest that you shouldn't text the passenger in the back seat while driving on the Coastal Highway, or across the Bay Bridge in fog. And he'd remind us that before the invention of soy milk there were actually cows, with udders that squirted milk if you gave them a proper tug. Many people — called farmers, according to history books — actually drank that milk and grew strong enough to change a wagon wheel with their bare hands.

He'd also have probably reminded us that a home we built for $300,000 in 2001 could not possibly have been worth $700,000 four years later, or that we shouldn't sign paperwork without reading it, no matter what size the print is.

There's a great chance he would have whispered in the president's ear that there is a thousand years of history that tells us you can't win a war in Iraq, or Afghanistan, and that you should never spend more money than you make. Common Sense would have shaken his head at the notion of giving an Afghan tribal chief a bag of cash while closing schools and senior citizen centers back home.

And he might have even ended the immigration debate by simply saying, “You can come here, but not on our dime. We really need to take care of our own citizens first and we don't have enough money to even do that very well. So when you sneak into our country, bring some cash with you to cover your own education and medical bills. Or ... file the proper paperwork and come in the front door. The sign on that door, by the way, is in English.”

He might also be wondering how, with 14 million people collecting unemployment benefits in this country, there can still be jobs “no American wants.” If there are still jobs no American wants, perhaps we should reconsider our unemployment benefit policies. I know ... the horror of it. “You want me to pick what?”

And if the Chinese can make a solar panel for $10 while it costs $1,000 to make a similar solar panel in California, Common Sense would have raised a red flag on any proposal to loan the California solar company $500 million of taxpayer money. Then — since the executives of that failed solar company won't tell us what happened to the $500 million government “loan” — Common Sense would find out why it costs $1,000 to make a solar panel in California in the first place and how we are supposed to compete with the Chinese for any manufacturing jobs.

If Common Sense wasn't dead by then, I'm sure that decision finally put him out of his misery. It likewise would have driven him over the edge to stand by while a Chinese sculptor was contracted to build a monument to the late Martin Luther King, Jr. Common Sense might have wondered why they couldn't find a black sculptor to chisel a monument to that Civil Rights hero, or why anyone would have a monument like that built in a country that has no respect for basic human rights, even if they did save $8 million (they argued that's how much less it cost to build the monument in China and have it shipped here). Common Sense would have wondered about the process that went into that decision.
. . .

It would be obvious to Common Sense that the best way for us to get out of this recession is to keep government as far away from Main Street as possible. Common Sense knew that government was never qualified, nor designed to create jobs. Most politicians know nothing about jobs because they've never actually had one. And ... no ... spending taxpayer money is not a job, it's a hobby for some and an addiction for others.

“Government,” Common Sense would always say, “never injected a single penny into the economy that it didn't first take out of the economy.” There are many in government today who think money comes from the Tooth Fairy.

According to his obituary, Common Sense was survived by several step-brothers: I Want It Now, Someone Else Is To Blame, and I'm A Victim.

There was no mention of an actual Big Brother, but I'm pretty sure Common Sense left one of those behind as well.

--Jeff Ackerman

Statement by Bede Parry Posted: Jefferts Schori Was Informed about His Past

2011-11-07T10:23:00.000-08:00

The Website of Patrick Marker which delves into sexual misconduct (and murder!) at Conception Abbey in Missouri has posted a .pdf copy of a two-page statement signed by former priest Bede Parry on May 7 of this year. The statement sets forth a full chronology of Bede Parry's sexual misconduct with young male students at both Conception Abbey and St. John's, in Minnesota, while he was a student there.

Of particular interest to Episcopalians, and in light of the previous posts I have put up on this topic (here, here and here), Bede Parry's statement contains this unequivocal declaration about what was communicated to the Presiding Bishop, the Most Rev. Katharine Jefferts Schori, when she was the Bishop of Nevada:

"Also in 2000, I considered joining the Prince of Peace monastery in Riverside, California. Prince of Peace had me undergo a series of psychological tests. After the testing, Prince of Peace’s Abbot Charles Wright informed me I was no longer a candidate. The psychological evaluation had determined that I had a proclivity to reoffend with minors. Abbot Wright called Conception Abbey’s Abbot Gregory Polan with this information."

"Abbot Polan would later share the information with Robert Stoeckig from the Catholic Diocese of Las Vegas, Episcopal Bishop Katharine Jefferts Schori and the human resources department at Mercy Ambulance in Las Vegas. Bishop Daniel Walsh, Monsignor Ben Franzinelli, Bishop Joseph Pepe, Archbishop Robert Sanchez and Rev. Bob Nelson were also made aware of my previous misconduct."

When compared with his earlier statements to the Kansas City Star at the time the Missouri lawsuit against Conception Abbey became public (and subsequently confirmed by his attorney), this statement provides further proof that Bede Parry had lied to Bishop Jefferts Schori about the extent of his previous abuse when he applied to her for reception as an Episcopal priest in 2002, and that she must have discovered the lie when she was fully informed by Abbot Polan of the findings with regard to Bede Parry. It is inconceivable that any Episcopal bishop at that point would not have called for the fullest background check of Bede Parry, if not have shown him the door right then and there.

Canon III.11 of the Episcopal Church at the time required that before he could be received into the Church, Bede Parry had to furnish proofs of his "godly and moral character", and that his departure from the Roman Catholic Church had not been on account of "any circumstance unfavorable to moral or religious character . . .". Again, it is inconceivable that the full information made available to Bishop Jefferts Schori could have satisfied either of these requirements before she agreed to receive him in the fall of 2004.

[UPDATE 11/07/2011: An alert reader points out that Bede Parry also says this in his statement (emphasis added):

In 2002, I pursued a cooperative dismissal from the Catholic Church. Fr. Dan Ward, a canon lawyer from Saint John’s Abbey in Collegeville, Minnesota, prepared the documents.

So Father Parry appears to have no longer been a priest in the Catholic Church (even one on suspension) at the time of his reception into the Episcopal Church in 2004, but had agreed earlier to being dismissed from his orders. While sacred orders in the Catholic Church, once validly received, never become invalid, the dismissal of a member of the clergy entails the loss of any ability to exercise the powers of his order. This new wrinkle raises the question: was Bishop Jefferts Schori made aware of Parry's cooperative dismissal from his orders in the Catholic Church? And if his prior offenses were grounds enough for his dismissal from orders, why were they not likewise grounds for refusing to receive him as a priest in the Episcopal Church?

Canon III.11.1(a)(2) in effect in 2003 required that Fr. Parry supply "[e]vidence of previous Ministry and that all other credentials are valid and authentic" (emphasis added). How could he have met this requirement if his credentials had been declared invalid by the Catholic Church -- with his cooperation and consent?? The questions for Bishop Jefferts Schori just get curiouser and curiouser. . . .]

It must be remembered, in considering all of this evidence, that 2003 was a year of intense examination in the Episcopal Church concerning its standards to prevent sexual abuse of minors and children. First, General Convention in summer 2003 enacted Resolution B008, "Protection of Children and Youth from Abuse." This recommended that dioceses obtain "a written application, public records check, an interview and reference checks" for every applicant who would "regularly work with children." (Bede Parry had been functioning as the organist, and assisting with the choir, at All Saints Las Vegas before applying to be received as a priest.) Next, the Episcopal House of Bishops, of which Jefferts Schori was a member, met in August 2003 and promulgated a pastoral letter addressed as follows:

To be read or cause to be distributed in every parish, mission, preaching station, and church-related institution which works with children and youth

The letter went on to state, in part:

Dear Brothers and Sisters in Christ,

We your bishops are steadfastly committed to seeing that the Episcopal Church is a community of safety and health for all people. The Body of Christ, the Church, must be a place where adults, children, and young people find the love and blessing of God, and where no one might be hurt and where their hurts may be healed.

We are all aware of the reports in the media, during the past year and more, of incidents of sexual misconduct in churches. Many of these tragedies have involved children and young people. While the Roman Catholic Church has most often been mentioned in news reports and accusations, the rest of the Church and many secular agencies have also been caught up in trying to address the damage done to our children by sexual predators. The Episcopal Church is not immune to this scourge in our society and we must respond to it honestly and forthrightly. . . .
. . .
Because of these mandates of love, respect, service, and justice, we have acknowledged our obligation to articulate clear standards about sexual harassment and misconduct, and to ensure that all our work and ministry is guided by them. We have been committed to sexual conduct training and abuse prevention for all our clergy and lay leaders. We have been clear that exploitation and abusiveness are always unacceptable in our common life. We have made efforts to become aware of the spiritual and emotional damage that is done by sexual misconduct, and to do our best to guarantee that none who come to us will suffer such harm. In spite of our best efforts, it is sad when we discover that we have not done enough.

As if these statements were not enough to raise the red flag in the Diocese of Nevada, the Pastoral Letter from the House of Bishops went on to discuss the kind of abuse with which Bede Parry had been most prominently involved (bold emphasis added):

While we were in conference together at Kanuga, North Carolina in the spring, many of us had the opportunity to learn more about pedophilia, a form of predatory sexual behavior that has caused untold harm in our society and in the Body of Christ. It is especially important that we as a church focus on understanding and preventing pedophilia.

While we need to be aware that pedophilia is a reality in our society, which can be manifest in the church, we must be very clear about the nature of this tragic problem. Pedophilia is pervasive; one in eight males and one in four females will be molested before they reach the age of eighteen. Of reported cases in the general population, sixty percent (60%) of abusers are known to their victims, thirty percent (30%) are family members or relatives, and ten percent (10%) are strangers. We must be aware that the Church is a community which offers predators the opportunity to become known and trusted by parents and their children.

We also know that offenders are predominantly male and heterosexual. We must take great care not to equate pedophilia with homosexuality in our minds or our conversation, and we must never assume that only men molest children in this way.

What we have learned most recently about the repetitive nature of pedophilia makes it imperative that we take very clear steps together to do the screening necessary to ensure that our children encounter God’s love among us, and that we do all in our power to protect them from the distorted perceptions of love offered by predators.

The Bishops went on to emphasize the specific measures that had been listed in Resolution B008, and then advised the Church that in conjunction with the Church Insurance Group and the Church Pension Group, a set of model expectations and standards would be promulgated regarding the protection of children and youth from predators and sexual abuse. Remarkably in light of later developments, the Pastoral Letter concluded in part with these words:

. . . In the case of pedophilia, our consistency in carefully screening, choosing and training all who work with children and youth will serve to allay any concerns about favoritism or carelessness, prohibiting those who have harmed children from ministries involving children, while providing the ability to firmly guide those who might harm children into other areas of ministry which serve the Church and contribute to our mission.

Following this letter, exactly as stated, (a) the Diocese of Nevada under Bishop Jefferts Schori adopted in October 2003 its own Manual of Policies and Procedures Concerning Sexual Misconduct, and then (b) the Church Pension Group promulgated a nationwide set of model standards for dioceses and parishes to follow. Those standards required a full application which included the inquiry: "Have you ever been accused of physically, sexually or emotionally abusing a child or an adult?" It also required a background check, including a check of references.

Bishop Dan Edwards, the current Bishop of Nevada, says that a review of Bede Parry's file shows that Bishop Jefferts Schori placed a restriction on his ability to work with children -- which shows that she had been made aware of his tendency to prey upon young males. But an interview with his most recent employers at All Saints in Las Vegas disclosed that they had been unaware of any such restrictions.

There is also no showing made in the records disclosed thus far that Father Parry ever fully confessed to his offenses with Bishop Jefferts Schori. At the time she received him in 2004, it does not appear that he had apologized, or been required to apologize, to his previous victims, or to acknowledge his injuries to them in any way. Amazingly, Bishop Jefferts Schori appears to have allowed him to wipe his slate clean and proceed to function as a priest in her Diocese without further concern or ado.

Given the stringent standards adopted by both the Diocese and the national Church, and given Bishop Jefferts Schori's specific participation in their promulgation, she has quite a bit of explaining to do. Hindsight does not equal foresight, and the Church needs to hear why, in light of all that she learned from Abbot Polan about Bede Parry's prior misconduct, and his proclivity to repeat it, she did not follow her own pastoral direction, and "take very clear steps together to do the screening necessary to ensure that our children encounter God’s love among us, and that we do all in our power to protect them from the distorted perceptions of love offered by predators."

Litigation - the Diocese of Connecticut

2011-11-06T15:12:00.000-08:00

[N.B.: The post below will become my index page for current and future posts dealing with litigation involving parishes in the Diocese of Connecticut, as part of my "Litigation and the Episcopal Church (USA)" page. In attempt to provide comprehensive coverage of all such litigation, I plan future pages for ongoing litigation in the Dioceses of Ohio and Nebraska, in addition to all the ones which are already featured at the link. Because the recent developments in Connecticut might be of interest, I am publishing this as a current blog post. Be sure to watch the latest edition of Anglican Unscripted for more reporting on the latest Connecticut developments, as well.]

As it did in so many other instances, trouble in the Diocese of Connecticut began with the support given by its diocesan, the Rt. Rev. Andrew D. Smith, for the election and consecration of V. Gene Robinson as the Bishop of New Hampshire in 2003. The forces of dissent coalesced around a group of six Connecticut clergy: the Rev. Mark Hansen of St. John's, Bristol; the Rev. Ronald Gauss, of Bishop Seabury Church, Groton; the Rev. Allyn Benedict of Christ Church, Watertown; the Rev. Donald Helmandollar of Trinity Church, Bristol; the Rev. Gilbert Wilkes, of Christ & the Epiphany Church, East Haven; and the Rev. Christopher Leighton, of St. Paul's Church, in Darien. These came to be known in Episcopal and Anglican news stories as "the Connecticut Six."

They first stopped forwarding their parish assessments to the Diocese, and asked to be released from their ordination vows of obedience to Bishop Smith. He refused, and proposed to place them under the alternative oversight of a conservative bishop for two years. But they demanded more permanent arrangements, including the right to have their parishes and the alternative bishop choose their successors. Again Bishop Smith refused. After an unsuccessful attempt to mediate the standstill, and with the consent of his Standing Committee, Bishop Smith in August 2005 inhibited the Rev. Mark Hansen on the pretext he had taken an unauthorized sabbatical. He sent in a diocesan task force to seize the premises of St. John's, change the locks, and oust the dissidents. Eventually he installed a new vestry, as the former congregation became "St. John's in Exile."

In September 2005, the six parishes, their vestries, and five of the six priests filed a lawsuit against Bishop Smith in the federal District Court of Connecticut. They named the Diocese and ECUSA's Presiding Bishop, Frank Griswold, as co-defendants, along with Connecticut's Attorney General, and claimed that the defendants had conspired to deprive them of their civil rights. The lawsuit also claimed that the State of Connecticut, through its statutes, gave unconstitutional preferences to the Episcopal Church (USA). The filing of the lawsuit caused the Archbishop of Canterbury to withdraw his earlier reference of the dispute to the Panel of Reference which he had created following Bishop Robinson's consecration to mediate ensuing disputes between bishops and their clergy.

The federal District Judge dismissed the civil rights lawsuit in August 2006, after ruling that the federal courts lacked jurisdiction over the plaintiffs' claims. The dismissal was without prejudice, which left the plaintiffs free to pursue their remedies in State court. Meanwhile, nineteen lay leaders and priests from the Diocese had brought charges against Bishop Smith for his misuse of the Abandonment Canon, originally intended to provide an expedited process to remove (depose) clergy who had left the Episcopal Church for another denomination, in order to deal with disobedient clergy in his own Diocese. They were later supported by thirteen bishops from the Anglican Communion Network. The Church's Title IV Review Committee released a written decision in April 2007 finding that Bishop Smith had not violated any canons except possibly one, but that that violation was not "intentional."

After the decision in April 2007 clearing him of charges, Bishop Smith moved to depose four of the five remaining clergy who had opposed him -- all except the Rev. Leighton of St. Paul's in Darien, one of the largest parishes in the Diocese. Fr. Ronald Gauss and his vestry of Bishop Seabury parish in Groton refused to vacate their premises, and brought suit against the Diocese and its bishop in a local court. On March 15, 2010, that court issued an opinion granting the latter parties' motion for summary judgment, and awarding them possession of the church and its bank accounts. Fr. Gauss and his vestry appealed, and the case was transferred to the Connecticut Supreme Court. The latter Court issued its final decisions in the case in September 2011, in opinions which are linked and discussed in the first post below. It affirmed the ruling of the trial court, but on different grounds, which explicitly upheld the Diocese's claim to the real and personal property based on the 1979 Dennis Canon.

Most recently came word that St. Paul's was the site of an ACNA ordination ceremony on October 30, 2011, where one priest and two deacons were ordained by the Rt. Rev. William Murdoch, bishop of the Anglican Diocese of New England. The ceremony took place at the invitation of the Rev. Leighton, who gave notice of it to Connecticut's current Episcopal Bishop, the Rt. Rev. Ian Douglas. Amazingly, the latter granted his permission, and said it was given as a gesture of "episcopal hospitality."

Nevertheless, a recent news item from Darien recounts that St. Paul's is the plaintiff in a new lawsuit against the Diocese of Connecticut and ECUSA, seeking a declaratory judgment that it owns its property free and clear of any trust interest in favor of the Episcopal Church (USA) or the Diocese. Bishop Douglas had sent the parish a letter asserting the primacy of the Church's Dennis Canon, and this lawsuit will test the validity of that claim. The wrinkle is that, unlike all of the previous Connecticut cases, including the latest one discussed in the link below, St. Paul's has not voted to leave the Diocese or the Episcopal Church (USA). The Dennis Canon, by its own terms, has no application "so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons."

There is thus presented for the Connecticut courts an interesting paradox which should penetrate to the heart of the flaws in the Dennis Canon. If the Canon says the trust "shall in no way limit the power and authority of the Parish . . . otherwise existing over [its] property" while it remains in ECUSA, then how does that constitute a "legally cognizable" trust at law (to use the words of Justice Blackmun's obiter dictum in Jones v. Wolf)? Trusts that spring into existence for the first time on a future contingency have long been disfavored in the law -- they are called "shifting uses." They were invalid at common law until the Statute of Uses, which enabled them only if the land was presently conveyed to a trustee, such as "to X, in trust for A and his heirs, but if B returns from Rome, then in trust to B and his heirs." A conveyance directly "to A and his heirs, but if B returns from Rome, then to X, in trust for B and his heirs" was invalid, and gave A a fee simple outright.

The Dennis Canon, however, involves no conveyance to a present trustee. Its declaration of a "shifting use" on the happening of a contingent event would be invalid if tried by anyone at common law. The novel question thus presented by St. Paul's lawsuit is: how can the Connecticut Supreme Court grant to the Diocese and to the Episcopal Church (USA) a special privilege to do what no one else has ever been allowed to do at law -- to create a shifting use that comes into being without there being any conveyance to an existing trustee?

Future posts linked at this page will address how the Connecticut courts proceed with this question.

Connecticut Supreme Court Enforces Dennis Canon

Europe Unraveling -- but Is That All?

2011-11-03T10:43:00.000-07:00

The news from Europe is uniformly disturbing. The trouble that started in Greece has received only a band-aid, and now the Greeks themselves are not even certain that they wish to put it on. Meanwhile, Spain, Portugal, Italy and Ireland are teetering on the brink, as well. Even the incoherent "protesters" who wanted to shut down the London Stock Exchange managed only to shut down St. Paul's Cathedral instead. Can't anyone in Europe do anything right? (The word "ineptocracy" has been coined to describe the phenomenon, which is, in my own phrasing: "A system where those least capable of leading are elected by those least capable of producing. The former then bungle through as long as they can, by taking from those who are producing, until everyone may enjoy being as impoverished as those who are not producing.")

We may finally be witnessing the inevitable consequences of a global system built upon exclusively fiat currencies -- money that consists only of paper promises. When an economy's medium of exchange is transformed from gold into paper, a certain convenience is achieved, to be sure -- but the convenience comes at a huge hidden cost. As I explained in my previous series on money, paper money is based entirely on debt -- on promises to pay in the future. But pay with what? You guessed it -- more paper money, or more promises to pay. An endless and spiraling cycle of debt is the driver of a fiat money economy.

When money is based on gold and silver coins, no debt is involved. The coin itself is both money, and a thing of intrinsic value, because it is relatively scarce and cannot be counterfeited (although it can be debased). New gold is produced only by mining it. The miner brings his raw gold and silver to the mint, and receives already minted gold and silver coins in exchange. So long as debasement does not occur, there is no addition to the money supply without its being backed by the physical gold and silver that is minted.

But when paper money is printed, there is nothing to back it except the promises of the central bank to print more paper money as needed. (Originally, paper notes were promises to pay in specie; now, they are promises only to pay in more paper.) And since it costs the central bank only the value of the paper, ink and labor consumed to print the money, there is theoretically no built-in limitation on the quantity that it can print. Instead the amount in circulation is left to the discretion of the central banks.

Central banks exist to regulate the supply of money in an economy. Without a gold and silver backing for the paper money, someone has to decide how much money there should be in circulation. Because they have to be able to increase the supply when deflation rears its ugly head, central banks have the unique ability to "create" money, with simply (in today's electronic world) a single stroke on a computer keyboard. Then they get to lend that instant money, created at virtually no cost, to governments and other borrowers at interest. It is a crazy system, but one which makes sense to the central bankers and their cronies, who never have to worry about running out of money.

Over the long term, however, printing electronic money is a recipe for the disaster which we now see unfolding in Europe. The unification of Europe under the Euro stopped the currency devaluation wars which had theretofore been that region's hallmark. (A devaluation war occurs when one country declares that it will exchange more of its currency for the currency of a country with whom it trades. The result is to make the prices of goods in that home country appear cheaper to foreign buyers in terms of their own currency, in the hope that they will be motivated to buy even more goods, and boost the home country's economy. But the increased outflow of the foreign country's currency which results causes that country to lower its exchange rate, as well, and a devaluation war ensues.) With Europe's unification under a single currency, no country could devalue its own versus that of others.

(It is therefore significant that some economists are urging Greece to pull out of the EuroZone, and to start printing its own currency [drachmas] again. The reason? So that Greece can devalue its currency against the Euro, and attract trade and tourists because of the resulting cheaper prices in terms of other currencies. There is truly nothing new under the sun.)

Although unification put a stop to individual devaluation wars in Europe, it could not, and did not, change the spending or savings habits of the individual cultures which make up that region. In the north, Germans continued to work six days a week, to save a high proportion of what they earned, and to produce quality goods much desired by other countries. In the south, the Greeks (for instance) cut their workweek to less than five full days, joined the public payroll in record numbers and voted themselves pensions and benefits which could start as early as age 45, and produced goods of inferior quality (due to the more lackadaisical work force). Meanwhile, Greeks used their earnings to purchase Germany's superior goods, instead of putting them into savings. (What's the point of saving much when you've got a "guaranteed" pension of 100%+ of your salary that can start when you are 50 -- and even earlier, if you are a woman?)

But all of the money changing hands in these transactions was paper money (Euros). As a result of the trade imbalances, Germany acquired more Euros from other EZ countries than they acquired from Germany (by selling their goods to Germany). Without a way to earn enough currency and make it flow into its economy, Greece would eventually run out of paper money, because it was producing less (more people retiring on full pay) and spending more. The Greek government could no longer issue paper money of its own to fill the gap, or devalue its currency to make its goods more attractive to foreigners (see the link above). So it borrowed money from European banks, in exchange for bonds (more promises to pay). This money was used to keep Greek spending and pension benefits flowing. Is it any wonder that the Greeks came to like this new arrangement, while it lasted?

Even the European banks, however, could see that it was not wise to keep lending Greece money without any prospect of their being repaid. The European Central Bank stepped in, and used its ability to print money to stave off a Greek default (i.e., buy Greek bonds and lend it more money to keep functioning) for a while, but that process, too, had its limits. The Euro was still a world currency, and if the European Central Bank inflated the Euro too much, Germany would see the value of its savings dwindle, and its cost of living rise -- despite all its citizens' hard work. As the biggest economic partner in the European Union, Germany carried the biggest clout with the Central Bank. So, nix on printing more money to save the profligate Greeks.

Instead, the EU rulers and bureaucrats persuaded the European lenders to Greece that they would have to take a "haircut." They would write off some of their Greek bond holdings -- at first 20% was proposed, but then the figure quickly became 50%. At that point, the European central bureaucrats became alarmed that such a massive reduction in the banks' holdings would jeopardize their stability, so they imposed requirements on the banks to bring in new capital.

But the only capital which the banks can bring in is -- you guessed it -- more paper money! And to obtain it, they have to induce investors with promises of return which are better than those which the investors can obtain elsewhere. Tell me: would you invest your savings in the stock of a European bank which stood to take a huge hit from its faulty lending practices? What would it take to make you do so? So now the bureaucrats are considering a scheme to fund the needed infusions of capital by having the Central Bank buy the worthless bonds from the lenders. To do so, however, the Central Bank will have to come up with more money without "printing" it -- a neat trick.

The current financial crisis boils down to this. Too many promises to pay have been made in the past. In this declining economy, with so many out of work, with so little new loans being made because there are so few creditworthy borrowers willing to borrow on the basis of dim future prospects, there is no way for all those past promises to be paid out of current earnings -- without robbing Peter to pay Paul. Because Paul is a spendthrift, however, the process of robbing Peter to finance Paul's profligacy simply leaves everyone a bit more impoverished than before, and is no recipe for economic recovery.

And hence, because the whole system is built on paper promises, the only solution the bankers, economists and politicians can see is for the ultimate banker of last resort -- the Federal Reserve -- to use its power to print more dollars. (In that way, the Fed could end up with the worthless Greek bonds on its balance sheet.) This would be a short-term fix which could last only so long as the rest of the world is willing to take increasingly worthless dollars in exchange for their own currencies, goods and services.

In the longer run, however, anyone can see that this is a recipe for unbridled inflation -- which seems to be what happens every time the physical backing of money is exchanged for debt, a mere promise to pay. Promises are cheap, but gold is not. Think of that as you watch what happens to the price of gold in the coming years.

The Bede Parry Case in a Nutshell

2011-10-31T16:36:00.000-07:00

Since there is such a raft of material on the Web about the Bede Parry case (for an introduction and links, see my earlier posts here and here), I thought I would boil the concerns down into an easily readable form. At the end of this post is a link to my straight-line chronology of the affair, which puts all of the various sources together into a single timeline. (Make sure you download the latest version, updated and corrected with more information as of 10:28 a.m. on 1 November 2011.) By perusing that chronology, a reader should be able to see that the following account sums up the matter in a nutshell (the account assumes you are familiar with the facts in the chronology):

Father Parry told the Kansas City Star on June 23, 2011: "I told [Bishop Katharine Jefferts Schori] at the time [I applied to her for reception into ECUSA] that there was an incident of sexual misconduct at Conception Abbey in '87. The Episcopal Church doesn't have a 'one strike and you're out' policy, so it didn't seem like I was any particular threat [emphasis added]. She said she'd have to check the canons, and she did."

But Father Parry had been suspended, and then barred from returning to his monastery, not just for that single offense (or "one strike"), but because it was repeated conduct (i.e., multiple strikes), after his Abbot had warned him and required he undergo psychological treatment for his propensities.

When he applied to be received as an Episcopal priest, however, Fr. Parry admits he told Bishop Jefferts Schori only about the single incident in 1987 which got him suspended, and not any of the earlier ones. He said, again to the reporter from the Star, "that he did not tell her about the incidents of abuse before 1987 at Conception Abbey." (Emphasis added; he also did not tell her about the earlier molestation incident at St. John's in Minnesota, which led to his warning and subsequent treatment.)

The Abbot of Conception Monastery, however, did speak to Bishop Jefferts Schori on at least one occasion while she was considering the priest for reception into the Episcopal Church. (The canonical procedure required that she check with his prior superior; and Abbot Polan says that he talked to her.) From the simple fact that neither the Diocese of Nevada nor Abbot Polan denies that there was any contact between them at the time, we may conclude that they spoke. And that makes all the difference.

There would be absolutely no reason for Abbot Polan to have withheld from Bishop Jefferts Schori all he knew about Father Parry: that because of his "proclivity to reoffend" (as found in a written evaluation in 2000 which resulted in his being rejected for membership in another monastery), he was not employable wherever there would be access to boys or young men -- such as in monasteries, or with church choirs.

This, then, is the nub of the matter: Fr. Parry now admits that he lied about his background to Bishop Jefferts Schori. She spoke to his former employer, and either must have learned about his lie then, or must have been so careless as to discount what she learned and/or read. But she went ahead and received him into her Diocese as a priest anyway, so that he could preach and continue assisting with the music and choir at All Saints, Las Vegas. So the simple question for the Presiding Bishop to answer is: Why?

And why, as Episcopalians on both sides of the aisle are asking, will she make no public response to these valid -- and genuine -- concerns? If one is maintaining impartiality, one does not presume that she is trying to hide anything. But the longer she maintains her silence on a crucial subject which only she can fully explain, the more it looks as though she is the one who is trying to hide something.

Appendix: Chronology of Bede Parry, with References

[UPDATE 11/03/2011: The new edition of Anglican Unsctripted (Week 16) is now published, having been delayed by the massive snowstorm that cut power to much of Connecticut, and in it, Kevin Kallsen interviews (toward the end) your Curmudgeon about the Parry affair. At the time of the interview, I was under the misimpression that the Diocese of Nevada had not obtained an updated psychological profile in 2003 on Fr. Parry, and my chronology above also stated as much. An alert reader kindly pointed out that in his July 6 statement, Bishop Edwards affirms that the Diocese did indeed conduct an "independent psychological evaluation" of Parry, but claims, with regard to the 2000 report on Fr. Parry done by the Catholic Church, that "[n]o such report was sent" to them. (How he can know this to be a fact he does not say.) I was able to correct the chronology, but not the Anglican TV interview, so I am publishing this correction here.]

New Charges of Cover-up against Presiding Bishop

2011-10-27T18:27:00.000-07:00

Disturbing new charges have surfaced about a cover-up concerning just how much Episcopal Bishop Katharine Jefferts Schori, when she was the diocesan of Nevada, knew about the past sexual abuses committed by Father Bede Parry, a former Catholic priest whom she canonically received into her diocese as a priest in 2004.

The allegations stem from telephone conversations and emails exchanged between Abbot Gregory Polan, the current ordinary of Conception Abbey in Missouri, where Father Parry was only a novice when his sexual abuses of young men originally came to light in the 1970s, and a certain Patrick J. Marker. Until recently, Mr. Marker had remained anonymous as another victim of sexual abuse, who had been molested by a different Catholic priest, while a student at a preparatory school operated by a different Catholic abbey in Minnesota (St. John's).

Bede Parry, before being ordained at Conception Abbey, had taken courses from 1979-1982 at the School of Theology also run by St. John's in Minnesota, and had admitted to his then Abbot in Missouri that he had engaged in sexual misconduct with a teen-aged student there. The Abbot required him to undergo "psychological treatment", but kept him on as a priest. Notwithstanding his treatment, Fr. Parry continued to molest young men in contact with him at the Abbey, and who had been enlisted to sing in its choir. It was during a summer camp for that choir in 1987 that Fr. Parry made the sexual advances which resulted in the current lawsuit on file in Missouri, and which the Circuit Court just ruled could proceed, over objections by the Abbey that the offenses alleged were outside the statute of limitations.

Patrick Marker, as a victim with ties to St. John's, where there were already a number of lawsuits pending on account of apparently widespread sexual abuse of minors there, became aware of the allegations concerning the molestations which Fr. Parry now admits he committed while at St. John's. As a result, Mr. Marker began investigating alleged abuses by the monks of Conception Abbey, and found credible charges concerning at least three of its members -- including Father Parry. He contacted Abbot Polan, as noted, and attempted to persuade him to approach the prior choristers and students at the Abbey who could still be found, in an effort to allow the ones who were willing to come forward to reach closure with regard to sexual abuses which they had suffered there so long ago.

After Abbot Polan, on his attorneys' advice, declined to try to make contact between the Abbey and other potential victims of its predator monks, Mr. Marker opened up a Website for the purpose of creating a point of contact for other victims of abuse at Conception Abbey. Frustrated by his inability to get anywhere with Abbot Polan, Mr. Marker put up a post on his Website last month which reproduced detailed contemporary notes of his conversations with the Abbot, both singly and in the presence of others, in order to document his efforts.

This post remained unnoticed in the world of ECUSA until earlier today, when VirtueOnline linked to it and reproduced it in its entirety. What should disturb Episcopalians in particular are the following extracts from Mr. Marker's contacts with Abbot Polan which concern the case of Father Parry and his subsequent reception into the Episcopal Church. Please note especially the remarks which Mr. Marker recorded the Abbot as having made last April 28 concerning Bishop Jefferts Schori's knowledge of Father Parry's prior sexual abuses before she agreed to receive him -- remarks made in the presence of two other priests taking part in the conversation:

July 19, 2011
Abbot Gregory Polan
Conception Abbey
[Address omitted]

Abbot Gregory,

Attached please find an exchange of emails with a subject line of “Being Proactive” that we exchanged in April and May of this year. The exchange begins with my email to you on Wednesday, April 27, 2011 wherein I reference to our telephone conversation of Monday, April 25, 2011, and ends on May 3, 2011 with an email relating your telephone conversation with Bishop Dan Edwards.

In addition to the emails we exchanged, below please find notes from four of our phone conversations.

*** During our first telephone conversation, on Monday, April 25, 2011, you shared the following information:

1) You heard something about Bede’s 1981 misconduct at St. John’s “at the time of the incident”.

2) You were aware of an incident involving Bede Parry with a member of the abbey’s choir in the summer of 1987.

3) Bede Parry was sent to New Mexico soon after the 1987 incident.

4) When Bede Parry tried to enter another monastery, he took psychological tests that showed a “proclivity toward sexual misconduct with minors.”

5) You called Parry’s boss at an ambulance company and a woman bishop with the Episcopal Church with the information.

6) You identified the woman bishop as Katharine Jefferts Schori.

7) You told Katharine Jefferts Schori not only about the allegations [plural] against Bede, but also of Bede’s attempt to join another monastery, the psychological testing and his “proclivity”.

8 ) That Katharine Jefferts Schori, despite your revelations, “allowed him to continue to work.”

. . .

*** During an April 28, 2011, telephone conversation you shared or confirmed (with Fr. Patrick Caveglia and Fr.Daniel Petsche in your office and all on speakerphone) the following information:

1) You agreed that Katherine Jefferts Schori had known about Bede’s “propensity to reoffend” for nine years.

2) Bede Parry is a sick man.

3) No one is monitoring Bede Parry.

. . .

6) Bede’s return to Conception Abbey would never be possible.

7) You will call the new Episcopal bishop in Nevada, Dan Edwards.

. . .

In our last conversation, you said that you had to trust your conscience. I find it hard to believe that your conscience is telling you to stonewall.

My conscience has led me toward numerous phone conversations and email exchanges with parents, choir members, former monks, and seminary students. I have learned a great deal about the history of misconduct at Conception Abbey.

I respectfully request that you make a public statement regarding misconduct by the members of your community. Those who offended must be held accountable — and publicly named. Those who protected the offenders must also be held accountable.

I know of at least twelve victims who would have benefitted from such accountability years ago. . . .

I also request that you end all speculation regarding your conversations with Katharine Jefferts Schori and Dan Edwards. They ignored your warnings and are rewriting history to serve their own agendas. Please do not fall victim to that trap.

The entire Conception Abbey community deserves the truth. The victims deserve no less.

Bishop Jefferts Schori, it is time for you to come out of your cocoon of silence on this topic, as well. The entire Episcopal Church (USA) deserves the truth as to why you regarded a Catholic priest with such a prior record -- known to you after being "warned" by his Abbot -- as morally fit for reception as a priest into your own Diocese.

Particularly, your Church deserves to know how you reconciled the version of the facts which Father Parry admits he gave you, which was incomplete and admitted only one prior offense in 1987, with the version you heard from his Abbot -- and then decided to receive him despite his lies to you.

More particularly, we need to have your own word on the record as to whether or not you received and read the psychological report on Father Parry which Abbot Polan had in his possession and which ended, as Abbot Polan apparently admitted he told you, with a conclusion to the effect that Bede Parry had a propensity to offend again. (This is the same report which the lawsuit filed by one of Fr. Parry's adolescent victims alleges was sent to you for your information, even though Bishop Edwards of Nevada now denies that it is in the files he has on Fr. Parry.)

More particularly still, given that Bishop Edwards claims that you gave instructions, following his reception, that Fr. Parry be kept from all contact with minors, we need to hear from you as to why his employers at All Saints Las Vegas stated in 2011 that they had never been aware of any such instructions.

Finally -- and not least of all, but far more serious -- one would like to know just what evidence you had before you in 2004 of Fr. Parry's moral and godly character (to quote Canon III.11 as then in effect [and continued unchanged today as Canon III.10.3 (a) (3)]), which was substantial enough and sufficient, in your view, to override all the testimony you then had to the contrary, so that he qualified for reception into your Diocese as one of your priests.

Failing your open, full and honest response on all these weighty matters, one waits to see whether you will self-report your offenses against the Canons in this case to your own Intake Officer, Bishop Matthews, for investigation by the same Disciplinary Board for Bishops whose report you are awaiting in the case against Bishop Lawrence of South Carolina. And the longer the period during which you refuse to speak openly to this matter, then perhaps the more might you subject yourself, mutatis mutandis, to charges that you have likewise "abandoned the communion of the Episcopal Church."

And Now for Something Different

2011-10-26T07:56:00.000-07:00

Note: A friend recently forwarded to me the following travelogue and pictures. A brief search on the Internet shows that they have been around since at least 2005; I can find no challenge to their authenticity. Even if the signature at the end is not valid, the pictures of San Francisco in 1940, about 18 months before we joined World War II, are wonderful. Take a breather and enjoy them.

Dear Friend,

Arrived in Oakland a few hours ago and finally we're on our way to San Francisco.

We paid 25 cents at the Toll Plaza to enter this wonderful bridge that was opened four years ago. It took me awhile to get used to the traffic.

The Oakland Bay Bridge

The bridge has two decks. The top deck is for automobiles and the bottom deck for trucks and electric trains. You can see the tracks at left. The trains are run by the Key System and Southern Pacific. They can take you all over the East Bay to wonderful places like Neptune Beach in Alameda.

The Yerba Buena Tunnel

We have just passed through the Yerba Buena Tunnel and can finally see San Francisco in the distance. Notice that the traffic has thinned out. Many of the cars got off the bridge at the island to go to the Golden Gate International Exposition on Treasure Island . The fair opened last year and will close for good later in 1940. I'm going to try and go there. Right now we're heading for the Mark Hopkins Hotel on Nob Hill for cocktails. It's a great place to see San Francisco.

Top Of The Mark

Isn't this a great view of San Francisco ? We're at the lounge called the Top of the Mark. The Mark Hopkins Hotel is one of the city's great hotels. The Russ Building , by the bridge tower, is the biggest office building on the Pacific Coast . It's 31stories high. Near the Ferry Building is the Produce District made up of small beautiful, old brick buildings. You can go there early in the morning and watch the grocers come in to pick out all kinds of vegetables.

Chinatown

After leaving the Mark we walked down California to Grant Avenue . Here is San Francisco 's world famous Chinatown. There are wonderful shops and the best Chinese food anywhere... and so reasonable. You can get a large bowl of pork noodles for 35 cents. Do you see the Shriner’s Flags at the top of the picture? They are having a convention in San Francisco . There is a Shriner’s Hospitals for Crippled Children on Nineteenth Avenue . It provides treatment for many children ever year without charge. Every New Years Day the famous Shrine East West football game is held in Kezar Stadium.

Flower Stands on Powell

After leaving Chinatown we walked down to Powell Street . Around Geary Street there are wonderful flower stands. San Francisco is sure a different place.

The Cable Cars

We're at Powell and Market where the cable cars get turned around to go to Fisherman's Wharf. There is a great cafeteria just a few feet from the turntable. It's called Clinton 's and I hear the food is great! but we plan to have dinner at Fisherman's Wharf and that's where we are heading.

Fisherman's Wharf

We walked along the docks to look at hundreds of fishing boats. The one coming in here is a crab-fisher. They are all painted wonderful colors and the fishermen are all Italian. They are very friendly, and we watched them sitting on the docks mending their nets and singing.

Dinner at Fisherman's Wharf

Fisherman's Wharf has to be one of my favorite places in San Francisco . The men who do the fishing bring them back to the restaurants and outdoor stalls. People can pick out a crab and it's cooked right there for you to take home. One night we went to a great restaurant a man told me about. It's called San Remo 's, near Fisherman's Wharf. You can get a wonderful Italian dinner for $1.00 from soup to dessert. Another dollar gets a bottle of house wine. You go into the bar to pick it up. Our waiter was very friendly. I think he had been sampling the house wine.

Playland at the Beach

San Franciscans love the beach. The water is too cold to swim in but Playland at the Beach has everything else; a wonderful roller coaster, the Fun House, Shoot the Chutes, and great food. A favorite is Topsy's Roost for delicious fried chicken and dancing. If you're eating on the balcony you go down to the dance floor on a slide! My favorite was the Pie Shop... the best chicken and beef turnovers imaginable… fantastic crust and wonderful gravy. San Franciscans take them home for dinner.

The Golden Gate Bridge

We left Playland and drove through the Presidio to the Golden Gate Bridge . The Presidio is still an important Army Base and has been on active duty since Spain built a fort there in 1776.

The Golden Gate is my favorite bridge. We parked the car near the Toll Plaza and walked across the bridge for 25 cents. You can't walk on the Bay Bridge. Our trip to San Francisco is over too soon. I hate to say goodbye to this beautiful city. The people who live here are sure lucky.

Hope you enjoyed my letter and the photographs.
Say hello to everybody.

~ Henry Ford

The Paranoid Episcopal Church: Afraid to Covenant

2011-10-25T00:59:00.001-07:00

The only thing remarkable about the reports from the latest meeting of ECUSA's Executive Council in Salt Lake City is that they managed to put out a narrative which discloses what they failed to accomplish: they do not represent the whole Episcopal Church (USA), but they act as if they do.

Thus, the Executive Council had called for submissions from each of the Church's supposed 110 Dioceses (actually, only 106 -- but then, who's counting?) regarding their positions on the proposed Anglican Covenant. The report which they published shows that they received responses from a grand total of just twenty-nine of its claimed 110 dioceses.

And even of that pitiful total, they have to reject all the Dioceses which voted in favor of the Covenant. The reason? "None of the dioceses who were reported in the press to have approved the covenant communicated this action to Executive Council." Oh, really? Perhaps these Dioceses recognized that the Executive Council would have taken their positive responses amiss, and so communicated them directly to the Anglican Communion Secretariat? At any rate, the Council -- predictably -- could not even be troubled to list these approving Dioceses, according to the "press reports" which they acknowledge reading.

And based on that resounding "response" from a little over 25% of its Dioceses, the Executive Council recommends to General Convention a Resolution that "The Episcopal Church [sic] is unable to adopt the AnglicanCovenant in its present form."

"The Episcopal Church"? Give me a break. The body which made this announcement is neither "Episcopal" ("bishop-led"), nor a Church. Instead, as can be seen from the conclusions of its "Executive Council" based on submissions by just over a quarter of the dioceses claiming to "belong" to this "Church", what we have is rule by the privileged few, or what Aristotle termed an oligarchy. It should be renamed "The Exclusive Church."

The defining characteristic of an oligarchy is that it rejects the views of the many as having any significance whatsoever. Indeed, it believes that the many, or what Aristotle calls the hoi polloi, are the equivalent of those who currently are "occupying" some parks in various cities across the land: they are unwashed, illiterate, wholly ignorant, and unworthy of serious attention.

Now the Executive Council of "the Exclusive Church" thinks that it, of course, is "Inclusive", and thus actually embraces the hoi polloi whom it in reality despises. The proof of this is that it can rely on the conclusion of a "Task Force" -- acting on the responses from just 29 dioceses -- to make its recommendation to the General Convention in 2012 that they vote to reject the Anglican Covenant.

Of course, this is no surprise; it is a typical "dog bites man" story. Rarely, however, is one given such clear documentation of the proof that those who govern "The Episcopal Church" could care less for what those believe who occupy its pews every Sunday.

A more honest Resolution would have stated:

Despite our best efforts, we have received responses from only 29 of 110 Dioceses. The Executive Council, therefore, recommends that General Convention redouble the efforts in this Church to give the proposed Covenant a full and fair consideration in each and every one of its Dioceses.

But welcome to "The Episcopal Church" -- which "welcomes" you, by the way -- but only if you are interested in placidly allowing them to continue as they always have, and do not rock their boat. This is a group so paranoid about their current disagreements with the rest of the Anglican Communion that they conclude that even the Introduction to the Covenant might obligate them to do things which they simply could not agree to do, under any circumstances:

Paragraph 1 of the Introduction speaks of the biblical treatment of the “communion in Jesus Christ.” It includes the “Communion of the life of the Church,” as the basis for the existence and “ordering of the Church.” A fair interpretation of this text is that our “Communion in Jesus Christ” coexists with our Communion as constituent members of the Anglican Communion. The implication may be that the continuation of our communion in Jesus Christ requires accession to the particular ordering of the church described in the draft Covenant . . .

No, we cannot let any crazy notion of a "communion in Jesus Christ" govern what it is to which we are committing ourselves if we were to sign this Covenant. Far better to retain our "autonomy", while mouthing platitudes about how we "respect" the Communion, and wish to remain "in dialogue" with it.

This is what your tithes are paying for: "The Episcopal Church" at work. Much like the famous old sign:

Conflicts Galore on the Kangaroo Court

2011-10-21T09:33:00.000-07:00

In a series of five posts earlier this month (links to the first, second, third, fourth and fifth), I have examined the patent procedural irregularities and bias which attend the deliberations of the Disciplinary Board for Bishops as it looks into vague and vacuous claims that Bishop Mark Lawrence of the Diocese of South Carolina has "abandoned the Episcopal Church" -- by refusing to go along with the latter's theological and canonical excursions into a metaphysical Wonderland. In particular, we saw first how the Board's original "Church Attorney", and then its Chair and one other member, were hopelessly conflicted by the public stances they had taken earlier on issues which are in total disagreement with -- indeed, are the exact opposite of -- the stances of Bishop Lawrence and his Diocese on those issues.

This is not a recipe for impartiality, or for cool and calm judgments at the highest level. Like the Queen of Hearts in Alice's Wonderland, the people who are sitting in judgment on Mark Lawrence have already announced their predilections well beforehand. That they have not yet voluntarily recused themselves from these proceedings is a scandal. Indeed: their failure to do so is what allows the resulting proceedings to be dubbed, in the provincial vernacular, "a kangaroo court." (A tip o' the Rumpolean bowler to Robin G. Jordan of Anglicans Ablaze for finding the wonderful image with which to illustrate this post.)

In this post, I want to lay out for all to see the conflicts (in addition to those I have already made manifest) which should disqualify still other members of the Board from proceeding any further in examining the claims made against Bishop Lawrence. Let us start with his colleagues -- the bishops who sit on the Board besides its President, the Rt. Rev. Dorsey Henderson.

The Rt. Rev. Ian Douglas, Bishop of Connecticut, is presuming to judge whether, by leading his Diocese to remove its accession to the Canons of General Convention, Bishop Lawrence has thereby "abandoned" communion with ECUSA. Bishop Douglas should accuse himself of that charge, because he now leads a Diocese which has never acceded to the Canons of General Convention, but only to the Church's Constitution.

The Rt. Rev. Herman Hollerith, Bishop of the Diocese of Southern Virginia, should be brought before the Board before they take up the case of Bishop Lawrence. In the proud and autonomous tradition of his parent Diocese of Virginia, which (like South Carolina) was one of the founding Dioceses of the Church, the Constitution of Bishop Hollerith's Diocese contains no accession clause of any kind whatsoever -- either to ECUSA's Constitution or to its Canons.

The Rt. Rev. M. Thomas Shaw, Bishop of Massachusetts, interpreted Resolution C056 ("Liturgies for Blessings") adopted by General Convention in 2009 to allow him to authorize clergy in his Diocese to perform same-sex marriages, and indeed performed such a ceremony himself. These acts violated not just the Canons on Marriage, but also the rubrics of the Book of Common Prayer. According to Bishop Shaw, he and his suffragan bishops are the final authority on what the Canons mean in their Diocese. So why is not Bishop Lawrence just as final an authority on the meaning of the Canons in his Diocese, as well?

Indeed, Bishop Shaw's very words to his own Diocese now ring spectacularly hollow, as applied to Bishop Lawrence (emphasis added):

Your bishops understand this to mean for us here in the Diocese of Massachusetts that the clergy of this diocese may, at their discretion, solemnize marriages for all eligible couples, beginning Advent I. . . .

We have not arrived at this place in our common life easily or quickly. We have not done it alone. This decision comes after a long process of listening, prayer and discernment leading up to and continuing after General Convention’s action this past summer. Our Diocesan Convention recently adopted a resolution of its own expressing its collective hope for the very determination that your bishops have made. Even so, we know that not all are of one mind and that some in good faith will disagree with this decision. Our Anglican tradition makes space for this disagreement and calls us to respect and engage one another in our differences. It is through that tension that we find God’s ultimate will.

All of the other Bishops on the Disciplinary Review Board are just as disqualified as the above three individual Bishops. The reason for their disqualification is that the vote to enact the new Title IV Canons passed the House of Bishops at Anaheim in 2009 (see page 227 of the previous link) without any recorded votes of dissent by any of the bishops currently on the Board. Unless they can show that they opposed the new Title IV, or at the minimum abstained from its adoption, they are hopelessly prejudiced against the stand now being taken by Bishop Lawrence and his Diocese. The latter claim in unison that the adoption of Title IV was not in accord with ECUSA's Constitution; but the former demonstrated by their votes at GC 2009 that they already disagreed with him -- even before the charges against him were brought to their attention.

In fact, this entire procedure under the "Abandonment Canon" points up just what is the abuse of that Canon by ECUSA's current leadership -- including, it must now be said, Bishop Dorsey Henderson. We have the case of a Bishop of an Episcopal Diocese who rejects the addition of new Canons for the Church, on the ground of their unconstitutionality. But if that very fact of opposition, for constitutional reasons, can be allowed to constitute grounds for deposition due to "abandonment" of the Church, then what is to become of any good-faith opposition to the passage of Church canons? If the Church now makes any such opposition deposable, then the only bishops who will remain with it will be the spineless toadies who never object to its canonical excesses under a leadership bent on arrogating ever more power to itself.

And what of the lay and clergy members of the Disciplinary Board? These, it must be remembered, were all appointed by House of Deputies President Bonnie Anderson, just as all of the Bishop members were appointed by Presiding Bishop Katharine Jefferts Schori. (Such are the truly "democratic" processes of the Episcopal Church (USA).) Exactly as in the case of the Bishop members, those whom Ms. Anderson appointed, such as the Rev. Canon Angela Shepherd, and who served as Deputies to the General Convention in 2009, need to step down if they voted for the new Title IV. (Canon Shepherd was in the deputation from Maryland, which was chaired by the Rev. Canon Mary Glasspool, soon to be elected suffragan bishop of Los Angeles.)

Member Christopher Hayes is disqualified as well. He serves as the Chancellor for the Diocese of California, which under his guidance and support recently enacted its own disciplinary canons (see Canon XV) to give effect in that Diocese to the new Title IV. How can he judge someone from a diocese which refused to do the very thing he advised his Diocese to do? Other Board members who served as deputies to their own Diocese's annual convention, such as Ms. Josephine Powell, and the Rev. Canon Jésus Reyes, are disqualified if they recently voted to amend their diocesan Canons to bring them into conformity with the new Title IV.

The Rev. Marjorie Menaul, the rector of St. Paul's in Bloomsburg, and a member of the Board from Central Pennsylvania, should be very careful of how she proceeds in this matter, along with Bishop Catherine Waynick of the Diocese of Indianapolis. The two of them served on the Court for the Trial of a Bishop in the case which resulted in a sentence of deposition (subsequently overturned on appeal) for the Rt. Rev. Charles E. Bennison, Jr. In the course of that proceeding, the Court requested that the Diocese of Los Angeles supply it with copies of letters in its files and stemming from the time that Bishop Bennison served as a priest at a parish in Upland there, working with his brother, a (now) confessed child molester. In its final order, the Court wrote this about its requests to the Diocese (pp. 14-15 of the Order, with emphases added):

Additionally, the Respondent argues that the Sentence should be modified because the Diocese of Los Angeles refused to produce its files regarding John Bennison. The parties, a representative of the Presiding Bishop, and the Court each asked the Diocese to produce those records. Unfortunately, the Diocese refused all of those requests and the Court had no ability to obtain those documents. . . . In this case, however, no party to this action refused to produce the documents in question. Rather, the Diocese of Los Angeles, a wholly autonomous entity which is not a party to these proceedings, chose not to produce the documents notwithstanding entreaties from the Court.

Thus, Bishop Waynick and the Rev. Menaul both acknowledged in their order that the Diocese of Los Angeles was "autonomous", and neither the Court for the Trial of a Bishop, nor the Presiding Bishop herself, could order it to produce its records. No presentment was ever brought against Bishop J. Jon Bruno for refusing to comply in that matter -- but these Board members are considering whether a similar refusal to comply here would constitute "abandonment" on the part of Bishop Lawrence? Having already ruled that way in the Bennison case, why have these two members not insisted that the Board has to drop all further consideration of the charges against the Bishop of a similarly autonomous Diocese, for acting autonomously?

Under the provisions of the current Title IV, it will be the duty of the Board's newly appointed Church Attorney, Mr. Jack W. "J.B." Burtch, Jr. to challenge all the members of the Board who are disqualified because their "impartiality may reasonably be questioned" (Canon IV.19.14[b], discussed and quoted in the updates to this previous post). However, the drafters of the new Title IV do not appear to have envisioned such a massive host of conflicts which would disqualify nearly every member of the Board under that standard. Why do I say that? Take a look at paragraph (c) of Canon IV.19.14 just cited, and see how it provides for the handling of any charges of disqualification which Mr. Burtch may bring against the Board's members:

(c) Any member of any Panel provided for in this Title who has not disqualified himself or herself as provided in this section may be subject to challenge by the Church Attorney . . . . The challenge shall be investigated by the remaining members of the Panel who shall determine whether the challenged member of the Panel should be disqualified and replaced according to the procedures of this Title for filling vacancies.

Let us see now . . . In this post and the one previous to it on this topic, I have set forth the basis for why it would not be reasonable to think that seventeen of the Board's eighteen sitting members could act impartially in the matter of Bishop Lawrence. Who is left to judge the rest? It may all come down to the member from Puerto Rico, Mr. Victor Feliberty-Ruberte. But wait! I just remembered that the Diocese of Puerto Rico does not have an accession clause in its Constitution, either! So, sorry, Mr. Feliberty-Ruberte: unless you can explain why your Diocese can get away with it while you believe that South Carolina should not, then you, too, could not reasonably be expected to be impartial in this matter.

As I said earlier: the entire kangaroo court should resign en masse -- and Bishop Jefferts Schori and President Bonnie Anderson, because of their continued behind-the-scenes involvement via the Executive Council which they head, should disqualify themselves from naming the people who can sit impartially in judgment on this matter. In sum: there is no one currently involved with the governance of the Episcopal Church (USA) who is impartial enough to judge Bishop Lawrence, or to appoint his judges. All charges should be dismissed without further delay. The longer this kangaroo court drags things out, the more apparent will it be that its procedures have been rigged from the outset.