Friday, June 19, 2020

SC Court on Remand Vindicates Bishop Lawrence and His Parishes

At 8:39 a.m. EDT this morning, South Carolina Circuit Court Judge Edgar Dickson filed his long-awaited decision on remand in the drawn-out dispute between Bishop Lawrence and the (now) Anglican Diocese of South Carolina vs. the Episcopal Church (USA) and its diocese (created to replace that of Bishop Lawrence when the latter voted to withdraw from ECUSA).

The decision is a full and clear vindication of all of the arguments made by Bishop Lawrence and his parishes, with the exception of those concerning trademarks, insignia and intellectual property (which Judge Dickson held were governed by federal trademark law). Making factual findings as to each of thirty-six individual parishes, Judge Dickson ruled (1) following the still-controlling decision of the South Carolina Supreme Court in All Saints Waccamaw, ECUSA's Dennis Canon by itself does not create or impose a legally binding trust on any church property in South Carolina; (2) none of the thirty-six parishes ever expressly acceded to the Dennis Canon in any written document; and (3) Bishop Lawrence's Diocese did not lose its status as beneficiary of the Camp Christopher Trust when it exercised its legal right to disassociate from ECUSA (again following another holding of the Waccamaw case).

Judge Dickson does an excellent job of laying out these conclusions at the close of his Order:
The neutral principles of property, corporate, and trust law [in South Carolina] have been consistent for years. Lawyers and judges understand those principles and are competent to decide issue[s] based upon them. Additionally, neutral principles of law avoid[] all religious discussion, including which party is “true” to their denomination. 
This is a property case. A decision on property ownership is usually governed by the title to real estate—the deed. In this case, all the Plaintiff Parishes hold title to their property in fee simple absolute. 
Ownership may be [a]ffected by [a] trust: a clear, convincing legal statement of a trust—not a promise, not a pledge, not polity. This Court concludes that there is no signed writing by the Plaintiffs expressly acceding to the Dennis Canon. This Court concludes there is no evidence establishing an intent by the Plaintiff Parishes to create a trust in favor of Defendants nor did the Plaintiffs ever vote on or consider acceding specifically to the Dennis Canon. Statements of allegiance are insufficient to establish an expressed trust. TEC unilaterally drafted the Dennis Canon. Since TEC and TECSC are not the owners of the Parish properties, they cannot establish a trust for themselves simply by declaring that they are also the beneficiary of the trust. The Dennis Canon by itself does not create a “legally cognizable” trust nor does [it] transfer title to property.
What does this mean on the ground? Again, Judge Dickson -- in contrast to the indeterminate and scattered holdings of the South Carolina Supreme Court, whose "Collective Opinions" he was forced to parse and make sense of -- leaves nothing unclear:
IT IS THEREFORE ORDERED that the thirty-six Plaintiff Parishes be, and hereby are, declared and affirmed as the title owners in fee simple absolute of their respective parish real properties, with improvements thereon and their accompanying personal property.
IT IS FURTHER ORDERED that certified true copies of this order shall be filed in the Clerk of Court’s Office in the county where each parish is located.
IT IS FURTHER ORDERED that the Defendants herein have no interest in the Plaintiff Parishes’ properties.
IT IS FURTHER ORDERED that ownership to Camp St. Christopher remain as titled to the Trustees of the Corporation as stated in the 1951 deed.
IT IS FURTHER ORDERED that the Federal Court has jurisdiction over all matters related to trademarks, service marks, and intellectual property.
IT IS FURTHER ORDERED that the request for the Appointment of a Special Master, the Petition for an Accounting are denied.
Your Curmudgeon does not gloat or boast, but tries to keep things humble and accurate here. Nevertheless, this earlier post foreshadowed this result. It was obvious to a lawyer's mind that no three justices of the South Carolina Supreme Court had agreed on anything except that they were not overruling All Saints Waccamaw, which remained good law. And following that lead, Judge Dickson finds that each of the questions presented for him on remand was already resolved by that earlier decision.

Those commenters who took the arrogance of Justices Hearn and Pleicones (who were actually in the minority, but refused to acknowledge it) at face value were misled into thinking that they properly summarized the fractured holdings of the Court. But they did not. All they did was adhere to their blinkered view that South Carolina should revert to the deference rule in church property disputes -- and that view, as Judge Dickson conclusively demonstrates, was not the majority view.

Where will things go from here? Well, Judge Dickson notes that there is still a pending motion to reconsider ECUSA's earlier motion to dismiss, but that motion is pretty well now moot, given that he has ruled on the merits. So what ECUSA and its diocese can do is once again appeal to the South Carolina Court of Appeals, and then to the state's Supreme Court. But this time, things will be different:

1. There are two new Justices on the Court (replacing Pleicones and Toal, who retired), plus Justice Hearn has recused herself from all further proceedings in this case. That leaves only four, as there were on +Lawrence's earlier Petition for Rehearing, but this time a 2-2 split would mean that Judge Dickson's Order would stand. So ECUSA's attorneys would need to get the votes of three of the four sitting Justices. Given the Court's repeated refusal to interfere with the process on remand, that eventuality does not seem likely.

2. To this day, as Judge Dickson notes, All Saints Waccamaw remains the law of the land in South Carolina, and it governs each of the property and trust questions on remand. ECUSA failed, even with the dubious participation of Justice Hearn, to get three votes to overturn Waccamaw. So where will they get them now, with Justice Hearn removed from the case?

3. This time (unlike last time), the record on appeal will include all of the individual parish documents, which show conclusively that none of them ever expressly "acceded" to the Dennis Canon as such. At most, some (but by no means all) parishes employed general language about being bound by the Constitution and "rules" (Canons) of the Episcopal Church in the United States. Moreover, the record will show that Bishop Lawrence's diocese expressly revoked any effect of the Dennis Canon upon parish properties before it withdrew from ECUSA.

4. As Judge Dickson notes in his Order (p. 6), "the trial court's findings of fact will be upheld on appeal when they are reasonably supported by the evidence unless: (1) the findings of fact are wholly unsupported by the evidence; or (2) unless it clearly appears the findings were influenced or controlled by an error of law." On the prior appeal, as Judge Dickson also points out, ECUSA and its diocese did not even appeal from Judge Diane Goodstein's findings of fact as to the parishes' not acceding to the Dennis Canon. But now Judge Dickson has extended and expanded those findings as to each individual parish, and they are amply "supported by the [documentary] evidence" he cites.

5. There is absolutely no evidence in the record, as Judge Dickson observes, of fraud or deceit justifying the law's imposition of a "constructive trust" on the parishes' properties. Instead, the evidence shows that they individually, and not ECUSA, paid for their own properties, and built and maintained their buildings at their expense.

6. Bishop Lawrence and his Diocese have moved on from their state-law claims to the trademarks and insignia of the traditional South Carolina Diocese. (The federal case, where the ownership to those marks is in dispute, is on appeal to the Fourth Circuit, and will be decided in that court.)

These considerations argue strongly against any chance of success were ECUSA and its diocese to try to appeal from Judge Dickson's order. But that never stopped them before, so do not hold your breath.

Monday, June 15, 2020

"Inclusive" ECUSA: "Love Never Ends" -- but +Love Must Go

In a theological dispute that ECUSA's Presiding Bishop Michael Curry has now personally allowed to become a travesty, the Episcopal Church in the USA (what I call "ECUSA", because it is a spawn of today's secular United States, and as such is not qualified to assume the broader mantle of "TEC", or "The Episcopal Church"), held a formal hearing whose object was to remove the Rt. Rev. William H. Love, Bishop of Albany, from the post to which his diocese long ago elected him. 

His sin (sc. offense against the authorities) that requires his deposition? It was his faithfulness to the "doctrine, discipline and worship of the Episcopal Church (USA)" -- exactly as he vowed when he took Episcopal orders, and again when he was consecrated one of that organization's bishops.

Bishop Love took God at His word when He decreed in Gen. 2:24 that "Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh." In today's PC terminology, he denied to same-sex couples their humanly implied right to have their unions receive God's sanction and blessing in the churches of his Diocese. But the 2018 General Convention passed a Resolution (see below) purporting to make the availability of an "alternate rite" for same-sex couples mandatory in all dioceses. And Bishop Love has steadfastly refused to allow any such rite to be celebrated in any of his parishes.

For such an unforgivable trespass upon General Convention's claimed divine prerogatives, Bishop Love must now depart his post, according to  that apostate group's current leadership.

To my regular readers: please forgive the barely concealed disgust in those lead-in paragraphs. Your Curmudgeon cannot refrain from it, when it comes to describing the apostasies of the church in which he was raised from birth, and from which its leadership, by those same apostasies, has now forever alienated him. As I have documented abundantly on this site, that leadership continually abuses its ($350 million worth of swaggering) power. Your Curmudgeon was trained always to speak the truth to power. If that truth be seen in some circles as contempt for "ECUSA's leadership" (an oxymoron in itself), then so be it -- let the shoe fit him who wears it.

The (in)validity of the charges brought against Bishop Love turns first upon the status of Resolution B012 passed (after many amendments from the floor, which you may trace at the link) at ECUSA's 2018 General Convention. That Resolution states at its outset (with my bold emphasis added):
Resolved, That the 79th General Convention authorize for trial use, in accordance with Article X of the Constitution and Canon II.3.6, “The Blessing of a Civil Marriage 2” and “An Order for Marriage 2” (as appended to the report of the Task Force for the Study of Marriage to the 79th General Convention), beginning the first Sunday of Advent, 2018 . . . 
The two liturgies referenced in the Resolution purport to be ceremonies joining or blessing the union of two persons of the same gender in what they each call a "marriage" now recognized ecclesiastically by General Convention, but not by ECUSA's standard Book of Common Prayer (1979 revision). It was the adoption of their predecessors in the 2015 General Convention that proved to be the final straw that compelled your Curmudgeon to quit his theretofore lifelong membership in ECUSA -- because of the ceremonies' reliance on outright blasphemy against Christ and His Church (as explained in this earlier post).  When ECUSA's assembled bishops blessed ritual blasphemy, it was time for faithful Christians to depart from their company.

Way back in 2012, when General Convention was beginning to consider proposals to provide trial services for the ecclesiastical union of two men or two women (I refuse to use the term "marriage" to describe such things, because it would be a category mistake), I put up a series of carefully researched articles that demonstrated why General Convention lacked the legislative power to do any such thing, without first proposing to amend the Book of Common Prayer. (See Part I here, Part II here, Part III here, Part IV here, and Part V here.)

The reason for its inability is that both the Constitution (Art. X) and the Canons (Canon II.3.1) make the BCP mandatory and normative for all forms of worship in the Episcopal Church (USA). And General Convention -- to repeat myself -- has not altered the marriage liturgy or rubrics in the BCP, both of which specify that Episcopal marriage is the union of a man and a woman in Holy Matrimony.

Let's try an analogy or two here in order to understand the magnitude of the problem facing Bishop Love's Hearing Panel at this point. Suppose General Convention enacted a resolution that purported to authorize, "for trial use, in accordance with Article X of the Constitution and Canon II.3.6" (exactly as it did in the case of 2018 Res. B012), a liturgy for Holy Eucharist to be celebrated by a lay (i.e., non-ordained) person (which it called a "President"). Would the bare reference to its authority under Art. X and Canon II.3.6 suffice to make the measure constitutional, or even canonical (which at bottom has to be the same thing, because the Constitution limits what GC may enact as Canons)?

Or again, suppose General Convention passed with the same references a resolution authorizing the substitution of readings from the Muslim Qur'an in place of those from Holy Scriptures. (I am deliberately choosing from among examples within our lifetime in order to avoid any charge of fantastical fabrication.)

Could either such a measure be upheld as canonical -- i.e., within the competency and powers of General Convention as spelled out in ECUSA's Constitution and Canons?  No? Well, why not?

Because in both instances, the proposed "alternatives" would violate the rubrics of the Book of Common Prayer.  Those rubrics bar anyone but a duly ordained priest or bishop from officiating at Holy Eucharist, and prescribe given readings from the Old and New Testaments for each Sunday in the calendar. If General Convention could change the liturgies of the BCP by passage of a single resolution at any one session, then the rites of the BCP would cease to be the constitutionally mandated forms of Sunday worship, and Article X of ECUSA's Constitution would lose all of its force and meaning.

And that is why Article X of ECUSA's Constitution requires that all proposed revisions or additions to the BCP pass a first reading in both Houses at a given General Convention, followed by a formal transmittal of them to the individual dioceses for deliberation in their respective annual conventions, following a passage (by carefully specified majorities) on second reading in each House at the next succeeding General Convention. (For the qualifying details, see my posts on amending / revising the BCP as linked above.)

For reasons of expedience, the backers of 2018 Res. B012 chose to deny that they were proposing any addition or alteration to the Book of Common Prayer.  But their proposed "alternative to the rite of marriage in the BCP" does just that, and is contrary to its explicit rubrics concerning marriage, as any reader of English may plainly ascertain for himself.  So where does that leave Resolution 2018-B012?

Its supporters next fall back upon the change they made to Canon I.18 in 2015, purporting to change its definition of marriage (then matching the BCP's rubrics) to one expansive enough to embrace same-sex unions under the "Church's umbrella."

To pretend to change the language of the marriage canon, however, is meaningless if one does not change the rites and rubrics in the Book of Common Prayer -- which requires, as I remind the reader, two successive General Conventions for its accomplishment.

Admittedly, the Church's Canons may be changed by resolution duly adopted in just a single session of General Convention -- but not (according to Article X) the Book of Common Prayer!

Precisely because it takes a longer process to amend ECUSA's Constitution and BCP than it does to amend its Canons, canon law authorities have uniformly held that the former two documents take precedence over the latter in the case of any conflict. As it states in the last two paragraphs on the last page (p. 482) of Volume I of White & Dykman, Annotated Constitution and Canons (viewable / downloadable at this link), which is every canon lawyer's bible, in regard to a similar attempt to amend Canon I.7 in 1979:
The 1979 Amendment to Canon 7 is now inconsistent with the authority granted by the rubrics of the rite for the Dedication and Consecration of a Church which is part of the 1979 Prayer Book.

The authority granted in the Prayer Book would take precedence over the provisions added to Canon II. 7 at the 1979 General Convention.
So those members of General Convention who fancifully imagine they solved the problem by their purported 2015 "amendment" to Canon I.18 delude themselves -- from a constitutional standpoint.  And if an organization will not respect the terms of its own duly adopted and agreed Constitution, then what is the point of organizing under it in the first place?

From what has been logically demonstrated above, the conclusion logically follows: the prosecution of Bishop Love is neither canonical nor constitutional.  It is brought upon baseless charges that have no backing under ECUSA's Constitution and Canons properly adopted thereunder -- which, for the reasons stated, do not include the current version of Canon I.18.

The disgrace that should fall upon those in ECUSA who are pressing the charges against Bishop Love is made manifest by these other incontestable facts:

1. The same General Convention that passed Resolution 2018-B012, under which Bishop Love is being prosecuted, also passed Resolution 2018-D078, which had language showing that it was expressly intended as a change to a specific part of the BCP, as authorized by Art. X, section b of the Constitution --- so General Convention knew perfectly well how to signal when it was using its authority under Article X to amend the BCP (quoted with my bold emphasis added):
Resolved, That the 79th General Convention authorize The Holy Eucharist: Rite II, including Eucharistic Prayers A, B, and D, (Expansive Language) for trial use throughout this church as a proposed revision within pages 355-382 of the Book of Common Prayer pursuant to Article X(b) of the Constitution;
2. Not only that, but the same General Convention showed that it was fully aware of the Constitutional defects in its previous adoption of church-wide "trial rites" intended to supplement, and not amend, the Book of Common Prayer. (As mentioned, my 2012 series of posts linked above went into those defects in depth.) With Resolution 2018-A063, the Convention passed on first reading a proposed amendment that would grant the following specific authority to the power of a single session acting with the appropriate majorities under Article X of the Constitution, by adding a new subsection (c):
(c) Authorize for use throughout this Church, as provided by Canon, alternative and additional liturgies to supplement those provided in the Book of Common Prayer.
(Emphasis added.) This amendment will not become effective, however, until it passes on a second reading at GC 2021 next year. So it cannot save the illegitimacy of Resolution 2018-B012, and it cannot rescue the prosecution of Bishop Love from its illegality, as well. To the contrary -- by passing the proposed Amendment to Article X, General Convention 2018 in effect conceded that it lacked all authority to propose any supplements to the BCP for mandatory use throughout the church without observing the formalities that Article X requires.

3. But this third and final fact is truly stunning: the Rt. Rev. Nicholas Knisely, Bishop of Rhode Island, who is the Chairperson of Bishop Love's disciplinary Hearing Panel, was also one of the proponents of Resolution 2018-B012 -- the very Resolution whose applicability to him Bishop Love is challenging! Why has no one to date noticed the inherent conflict of interest in Bishop Knisely's appointment to the Hearing Panel?

It is all very complex and interrelated, I know. But I hope I have been clear enough in laying the matter out to show what the chief difficulty is with attempting to try (and convict!) Bishop Love for violating "the discipline and worship" of the Episcopal Church (USA):

As specified in Canon IV.2, "Discipline of the Church shall be found in the Constitution, the Canons and the Rubrics and the Ordinal of the Book of Common Prayer" (italics added). The "worship" of the Church is not specially defined in the canons, but how could it not consist of what is in the Book of Common Prayer?

The current Rubrics of the Book of Common Prayer repeatedly provide, as they did when Bishop Love was ordained and consecrated, that a celebration of marriage in the Church is only between a man and a woman, and not between two of any other kinds of persons (see the BCP online here, beginning on page 423).

The rubrics of the Book of Common Prayer, as we have seen, take precedence over any canon in the case of a conflict, and the rites in the Book of Common Prayer spell out the mandatory forms of the Church's worship.

Therefore, it is impossible that, by adhering as he does to the text of the Book of Common Prayer (which does nothing other than incorporate God's words in Gen. 2:24, as also quoted by Jesus in Mt 19:5), Bishop Love can be said to violate either his vows given upon ordination, or the discipline, or the worship of the Episcopal Church (USA).


Saturday, May 23, 2020

Texas Supreme Court Repudiates ECUSA's Sophistries

In a comprehensive and unanimous thirty-page decision filed Friday morning, May 22, the Texas Supreme Court ruled in favor of Bishop Jack L. Iker and reversed the Court of Appeals' earlier decision to the effect that ECUSA's rump diocese, and not Bishop Iker's diocese, controlled the Texas corporation which holds title to the properties of those parishes which in 2008 voted to withdraw their diocese from the unaffiliated and unincorporated association that historically has been called the (Protestant) Episcopal Church in the United States of America.

The decision is as straightforward an application of "neutral principles of law" (espoused by the U.S. Supreme Court in Jones v. Wolf) as one could find among the courts to which ECUSA has presented its "hierarchical church" sophistries. It repudiates those sophistries in a succinct passage (pp. 24-25):
In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer. But applying neutral principles to the organizational documents, the question of property ownership is not entwined with or settled by those determinations. The Fort Worth Diocese’s identity depends on what its documents say. To that end, the Diocesan Constitution and Canons provided who could make amendments and under what circumstances; none of those circumstances incorporate or rely on an ecclesiastical determination by the national church; and nothing in the diocese’s or national church’s documents precluded amendments rescinding an accession to or affiliation with TEC. Applying neutral principles of law, we hold that the majority faction is the Fort Worth Diocese and parishes and missions in union with that faction hold equitable title to the disputed property under the Diocesan Trust. 

The opinion then makes short shrift of ECUSA's remaining arguments. It demolishes ECUSA's Dennis Canon, first by holding that a beneficiary like ECUSA cannot declare a trust in its favor in Texas on property that it does not own, and second by holding that even if the Dennis Canon could be said to create a trust in ECUSA's favor, the Canon does not, as Texas law specifies, make the trust "expressly irrevocable". Thus it was well within the power of Bishop Iker's Fort Worth Diocese to revoke any such trust, which it did by a diocesan canon adopted in 1989 -- to which ECUSA never objected in the twenty years following that act.

The Texas Supreme Court affirmed the Court of Appeals' holding that ECUSA could not assert title to the parishes' properties by way of any "constructive" trust (a creation of the law to prevent a wrongdoer's "unjust enrichment"), or by the ancient doctrines of estoppel or trespass-to-try-title, or by accusing Bishop Iker and his fellow trustees of the diocesan corporation of breaches of fiduciary obligation allegedly owed to ECUSA. Each of those claims would involve the civil courts unconstitutionally in disputes over religious doctrine.

In conclusion, the Court affirmed the judgment of the Court of Appeals on the grounds last noted, reversed its principal holding that as an ecclesiastical matter, ECUSA got to say which corporation under Texas civil law was the entity which held the parishes' property in trust, and reinstated the trial court's judgment that Bishop Iker's corporation was in law the trustee of the properties of the parishes in his diocese.

Where does the matter go from here? First of all, back to the trial court, whose judgment (now made final by the Texas Supreme Court) "permanently enjoined [ECUSA]'s clergy and leaders from acting as "The Episcopal Diocese of Fort Worth" (opinion, p. 11).  That injunction may now be enforced, and so ECUSA and its rump diocese will have to come up with a different name.

(That is one of the downsides of a litigation strategy pursuant to which you pretend to be the "true" diocese that continued in the place of the one that withdrew. You argue that the vote to withdraw was "illegal" under ECUSA's Constitution and Canons, which in fact are silent on that subject [see the Court's opinion, p. 23], and so conclude that it is the withdrawing entity that has to find a new name. It is a game with all-or-nothing stakes. Now ECUSA and its followers in Fort Worth have played it and lost.)

Also facing a required change will be the ECUSA-aligned parish of All Saints in Fort Worth, which  thanks to the graciousness of Bishop Iker was allowed to stay in property which the trial court ruled belonged to Bishop Iker's corporation, pending the final outcome of the appeal. See my earlier post on that topic for details.

ECUSA's provisional bishop in Fort Worth issued a pastoral letter to his parishioners in which he stated he was joined by ECUSA's Presiding Bishop, Michael Curry -- you may read it here. The letter is remarkable for showing a lack of understanding as to what the Court held, when it says:
I remain convinced that we are right in our affirmation that we are the continuing Episcopal Diocese of Fort Worth and that I am its bishop.
Can the man not read English? Look at what the Court says in the first sentence of the paragraph that I first quoted above: "In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer" (my emphasis added). The Court says it again on page 20: "No one disputes that TEC’s determinations as to its denominational leaders and “good standing” with the church are ecclesiastical questions." (The Court also said the same thing in its earlier opinion in the 2013 case of Masterson v. Diocese of Northwest Texas, as it shows by quoting a passage from it in its current opinion at page 23.)

This Texas case is not about whether ECUSA needs to follow its own Constitution and Canons when it fashions an ersatz diocese out of the remnant clergy and parishioners who elect to remain in ECUSA when one of its member dioceses votes to cancel its affiliation with General Convention. Those are ecclesiastical matters which cannot be determined in the civil courts, as ECUSA's own canons recognize.

By the same token, however, ECUSA's ecclesiastical powers do not extend to overriding the laws of the various States in which it operates. The very essence of "neutral principles" is that a church is treated just as any other citizen of that State would be when it comes to complying with the laws and regulations dealing with entities like corporations and unincorporated associations. To hold otherwise -- as the high courts in New York, California, Connecticut, Georgia and several other States have done -- is not only to misread Jones v. Wolf, but also to violate the First Amendment by favoring one religious denomination at the expense of others.

ECUSA and its rump diocese may be speaking softly for now, but true to their form, they most likely will petition the United States Supreme Court to review this decision in an effort to get that Court to explain just what it really meant in Jones. Given that Court's reluctance, in each of the dozen or so instances it has been asked to do so in the forty-odd years since 1979, I would not take any bets on ECUSA's chances of success. But when you have over $350 million in trust funds at your disposal, and have had no qualms about spending well over $60 million on attorneys and church property litigation since 2000, one's chances of success would not appear to be a factor under consideration.

In other words, keep your powder dry, and stay tuned for more.