Tuesday, September 30, 2008

Responsible--and Irresponsible--Voices

Where is responsible leadership in the current financial crisis?

1. Treasury Secretary Hank Paulsen has not demonstrated it thus far. Well-schooled in the financial markets, and with a previous record of success in buying distressed securities and selling them later at a profit, he proposed a solution narrowly tailored to the immediate needs of Wall Street. There was no attempt to address the wider systemic failures that led the country into this mess: under the Paulsen proposal, Fannie Mae and Freddie Mac would have continued their privileged GSE status. (They were each a "Government-Sponsored-Enterprise"---meaning a private corporation that pays no state or federal taxes, and has a bottomless line of credit with the U.S. Treasury.) In a year or two under his plan, they would have been back playing havoc with the mortgage securities markets as soon as all their bonds and guarantees had been paid off.

2. President George Bush, our first M.B.A. president, has also failed to demonstrate leadership thus far. He failed to see that the Paulsen plan would get nowhere as long as it was described, or seen, as a "bailout". His fifteen-minute speech to the nation maintained a non-partisan tone that was appropriate for the moment, but failed to explain just why the Paulsen plan was the best solution to the problem (it wasn't). He has been AWOL with regard to helping his own party rally behind a coherent position on what needs to be done.

3. Speaker of the House Nancy Pelosi exhibited nothing but cynical partisan politics---she failed to put her own prestige behind the compromise rescue plan, and as a result 95 of her own party could not come up with the 13 votes needed to enact it. Every Democratic member of Congress felt free to "let the others vote for it, so I won't have to face the heat at home." She deserves a vote of "No confidence" from her own party.

4. And where was Sen. Barack Obama during the entire crisis? He stood carefully on the sidelines, not wanting to get his skirts wet. This is the consummate opportunist, who will bide his time until he sees a moment that he can use to his advantage, while in the meantime he keeps a finger to the wind so he can tell what he should say or propose next (once he figures out, or thinks he has figured out, which way the wind is actually blowing).

In the midst of all this irresponsible leadership, there are a few responsible voices.

• Suspend “Mark to Market” Accounting: Suspend the mark-to-market regulatory rules for long-term assets. These rules require financial firms to mark assets at current market levels, even where no market exists and any immediate transactions would result in fire-sale prices. Instead of allowing firms to mark these assets to their true economic value, these rules contribute to a downward spiral as firms have to evaluate their assets not on the basis of their long-term investment but rather on a short-term panic.
• Reform Section 404 of Sarbanes-Oxley: Make voluntary the duplicative reporting requirements under Section 404 of the Sarbanes-Oxley Act, allowing companies to comply with standards that better fit their size while still insuring that they protect their investors. The average compliance cost for a business under Section 404 is $3.8 million, with smaller businesses paying over twice as much in percentage of revenue as large businesses. Relieving this burden will reverse a policy that is chasing capital offshore and encourage more companies to go public in the United States.
• Repeal federal mandates for risky loans: Repeal the Carter-era Community Reinvestment Act, which requires banks to make loans available to borrowers who would otherwise be deemed as too high a credit risk, and who often cannot afford to repay the loans. Under this law that contributed to our current crisis, if banks don’t make enough risky loans, community organizers can take financial institutions hostage during regulatory proceedings when banks try to merge, acquire or otherwise alter their status.
And Congresswoman Michele Bachmann of Minnesota is another:
Today marks an historic moment for America as a solid bipartisan majority of Congress rejected the fatally flawed Paulson Plan. Standing shoulder to shoulder with taxpayers, we declared that we can do better.
As I’ve stated previously, this plan was rushed, unworkable, and short-sighted. A majority of House Republicans have parted ways with President Bush on this plan and we demand that alternative proposals be put on the table. There is universal agreement that this plan was bad, but its supporters claimed it was the only option. There were alternatives available, but Speaker Pelosi and the Administration chose to ignore them and used every parliamentary trick in the book to stifle debate. Now, they will have to listen to the voices of American taxpayers who refuse to open their checkbooks to Wall Street to write a $700 billion check with no strings attached.

I support a plan that would have Wall Street bail itself out, not hardworking taxpayers, by requiring institutions to insure troublesome assets that are causing today’s credit crunch. It would suspend mark-to-market accounting, which forces companies to take losses on artificially devalued assets on an artificial timetable, to give investors more confidence.

The plan I support would break up Fannie Mae and Freddie Mac -- government sponsored enterprises that are at the heart of this crisis -- so that the encumbered taxpayer no longer backs them -- implicitly or explicitly -- and so that they do not artificially grow larger than the market will allow. We cannot pass legislation that sets America up for a Groundhog Day reprise of this mess and that means changing the problem at its core - the GSEs.

Furthermore, the plan I support suspends capital-punishing tax rates to bring more capital into the U.S. markets rather than our foreign competitors. And, the plan ensures the Federal Reserve’s attention is focused on long-term price stability rather than short term economic growth. Finally, it requires the US Treasury to write rules keeping executives who made the risky decisions from personally profiting from them with excessive compensation or golden parachutes all at the expense of taxpayers. We can't have a market that only condones risky behavior. The balance between risk and reward is an important part of the free market.

My colleagues and I stand ready and willing to negotiate with any parties on a plan that will help stabilize our financial markets and relieve the liquidity crisis without exposing taxpayers to a $700 billion bailout debacle.
This woman gets it, and she is in her first term!

So I went to the websites of the two presidential candidates, and here is what I found. Sure enough, both of them had put up short videos explaining their ideas to solve the crisis. To my amazement, however, Barack Obama's solution was all about lowering taxes on the middle class!

Does he really believe that the current financial crisis was brought about because taxes on the middle class were too high? No, of course he doesn't, but Obama evidently thinks this is the message voters want to hear. And so once again his qualities of leadership are on display for those who are not too blinded by hero-worship to see.

As for John McCain, at least his suggestions actually addressed the problem (with the exception of his opposition to earmarks---but he is only being consistent there). And he gets credit for listening to those like Sen. DeMint and Michele Bachmann who actually have thought this through, and who have concrete ideas about what needs to be done.

The best overall brief summary I have found on the Web of the nature of the current crisis and why the Paulsen plan has it all backward is this one, by Jeffrey Miron, a lecturer in economics at Harvard:
This bailout was a terrible idea. Here's why.

The current mess would never have occurred in the absence of ill-conceived federal policies. The federal government chartered Fannie Mae in 1938 and Freddie Mac in 1970; these two mortgage lending institutions are at the center of the crisis. The government implicitly promised these institutions that it would make good on their debts, so Fannie and Freddie took on huge amounts of excessive risk.

Worse, beginning in 1977 and even more in the 1990s and the early part of this century, Congress pushed mortgage lenders and Fannie/Freddie to expand subprime lending. The industry was happy to oblige, given the implicit promise of federal backing, and subprime lending soared.

This subprime lending was more than a minor relaxation of existing credit guidelines. This lending was a wholesale abandonment of reasonable lending practices in which borrowers with poor credit characteristics got mortgages they were ill-equipped to handle.

Once housing prices declined and economic conditions worsened, defaults and delinquencies soared, leaving the industry holding large amounts of severely depreciated mortgage assets.

The fact that government bears such a huge responsibility for the current mess means any response should eliminate the conditions that created this situation in the first place, not attempt to fix bad government with more government.

The obvious alternative to a bailout is letting troubled financial institutions declare bankruptcy. Bankruptcy means that shareholders typically get wiped out and the creditors own the company.

Bankruptcy does not mean the company disappears; it is just owned by someone new (as has occurred with several airlines). Bankruptcy punishes those who took excessive risks while preserving those aspects of a businesses that remain profitable.
Exactly right. This makes the obvious point that the Paulsen plan does not teach any of the players in this mess that they have to act differently if the crisis is not to repeat itself. It simply appears on the scene, like a deus ex machina in 18th-century opera, and rescues the characters who have gotten themselves into a difficult situation.

Mr. Miron goes on to explain why the doom-sayers must not be allowed to drive legislators into a panic:
In contrast, a bailout transfers enormous wealth from taxpayers to those who knowingly engaged in risky subprime lending. Thus, the bailout encourages companies to take large, imprudent risks and count on getting bailed out by government. This "moral hazard" generates enormous distortions in an economy's allocation of its financial resources.

Thoughtful advocates of the bailout might concede this perspective, but they argue that a bailout is necessary to prevent economic collapse. According to this view, lenders are not making loans, even for worthy projects, because they cannot get capital. This view has a grain of truth; if the bailout does not occur, more bankruptcies are possible and credit conditions may worsen for a time.

Talk of Armageddon, however, is ridiculous scare-mongering. If financial institutions cannot make productive loans, a profit opportunity exists for someone else. This might not happen instantly, but it will happen.

Further, the current credit freeze is likely due to Wall Street's hope of a bailout; bankers will not sell their lousy assets for 20 cents on the dollar if the government might pay 30, 50, or 80 cents.

The costs of the bailout, moreover, are almost certainly being understated. The administration's claim is that many mortgage assets are merely illiquid, not truly worthless, implying taxpayers will recoup much of their $700 billion.

If these assets are worth something, however, private parties should want to buy them, and they would do so if the owners would accept fair market value. Far more likely is that current owners have brushed under the rug how little their assets are worth.

The bailout has more problems. The final legislation will probably include numerous side conditions and special dealings that reward Washington lobbyists and their clients.

Anticipation of the bailout will engender strategic behavior by Wall Street institutions as they shuffle their assets and position their balance sheets to maximize their take. The bailout will open the door to further federal meddling in financial markets.
No thoughtful person can disagree with this analysis. The bottom line is this: bailing out Wall Street is a Wall-Street-contrived solution that will benefit mainly Wall Street. If Main Street muddles through, it will be no thanks to Wall Street, but this does not mean that if Wall Street faces bankruptcy, Main Street will necessarily be ruined as well:
So what should the government do? Eliminate those policies that generated the current mess. This means, at a general level, abandoning the goal of home ownership independent of ability to pay. This means, in particular, getting rid of Fannie Mae and Freddie Mac, along with policies like the Community Reinvestment Act that pressure banks into subprime lending.

The right view of the financial mess is that an enormous fraction of subprime lending should never have occurred in the first place. Someone has to pay for that. That someone should not be, and does not need to be, the U.S. taxpayer.
This analysis has it right, and should form the backbone of any legislative solution that makes it through Congress.

Now, however, go back and look again at yesterday's vote. Since Nancy Pelosi did not ask even five of her own committee chairmen to vote for the measure, what does that say? It says that she wanted the vote to fail---or if it happened to pass, it would only be with the help of a large number of Republicans, while leading Democrats could distance themselves from it. And make no mistake---voters would have been very angry, with good reason, at all those who passed such a bailout of Wall Street.

So what did Nancy Pelosi gain by having the vote fail? Again, the answer is staring you right in the face: If the measure did not pass, the doom-sayers might be right, and a second Great Depression would begin. Whom would that help? Again, the Democrats, since the collapse would, whether properly or not, be laid at the door of President Bush and his party (for failing to support the bailout strongly enough).

Is that cynical enough for you? Like it or not, it's the kind of politics that is being played in Washington right now. I don't know about you, but I've had enough. As I write this, the Dow Jones Industrial Index is up nearly 300 points; maybe---just maybe---the talk of a collapse is just talk. Sure enough, a wave of bankruptcies will not be pleasant for many, but as Mr. Miron points out, it just means that the companies will have new owners---ones who are not so inclined to take risky strategies on the expectation that their political friends will bail them out in exchange for the millions of dollars contributed to their campaigns over the years.

The beauty of the Miron plan is that it is in large part self-executing. Leave things as they are, and bankruptcies are sure to follow. Then make sure to vote out any politician who so much as dares to suggest that Fannie Mae and Freddie Mac should be revived.

If we do just that much, we'll be well on our way out of this mess.

Wednesday, September 24, 2008

Hypocrisy, Thy Name Is David Booth Beers

From the Memorandum written to the members of the House of Bishops on September 12, 2008 (bold added for emphasis):

There may also be raised at this meeting the question of whether consent to the deposition of a bishop who has been certified to have abandoned the Communion of this Church must be by a majority of bishops present at the meeting at which the matter is presented or, on the other hand, by a majority of all the voting members of the House whether or not in attendance. Canon IV.9(2) states that the vote to consent must, first, take place at a "regular or special meeting of the House" and, second, be "by a majority of the whole number of Bishops entitled to vote." My Chancellor and the Parliamentarian of the House have both advised me that the canon means that the vote must be by a majority of all the bishops who are at the meeting at which the vote must be taken and who are entitled to vote.
From the Opening Brief filed by Episcopal Church and the Diocese of Virginia on [Section] 57-9 Voting Issues, prepared in part and signed on September 5, 2008 (one week before the above Memorandum) by the law firm Goodwin Procter, of which David Booth Beers is a partner (bold again added, except for the heading, which is in bold in the original):

V. The phrase "majority of the whole number" in § 57-9(A) requires a majority vote of the whole number of "members" eligible to vote, whether or not they voted.

Just as the Court can and should resolve the proper definition of the statutory term "members" as a matter of law, it should, if there is any dispute on this issue, resolve the meaning of the statutory phrase "majority of the whole number" as a matter of law. That is, does the statute require that the vote reflect a majority of "the whole number" of members or only a majority of those who actually cast a ballot?

In their efforts to invoke the statute, the CANA Congregations properly concluded that a majority of "the whole number" was required. . . .

. . . Furthermore, the Congregations did not simply schedule a congregational meeting at which a vote of those present could be taken. Instead, they went to great lengths to ensure a majority vote of all those who . . . were eligible to vote . . . .

The Congregations' own case law . . . confirms that the above understanding of "majority of the whole number" was correct. . . .

Accordingly, the phrase "majority of the whole number" in § 57-9(A) refers to and requires a majority of the total number of a congregation's "members" over the age of 18, regardless of how many or how few actually cast a ballot.
TEC's brief attached a copy of Merriam-Webster's definition of "member" to enhance its argument. Let us do the same here, and attach Merriam-Webster's definition of "hypocrite":

1 : a person who puts on a false appearance of virtue or religion
2 : a person who acts in contradiction to his or her stated beliefs or feelings

(H/T: Scott+)

UPDATE 09/24/2008: a further search of the pleadings shows that Goodwin Procter reiterated and emphasized its Virginia argument in its Opposition Brief filed on September 12, the very same day as that on which the Memorandum to the House of Bishops was written (see pages 13-14). What is more, TEC's brief even cites examples where the Virginia General Assembly, exactly as did TEC's General Convention in the Constitution and Canons (see the section of this post entitled "Analogous Provisions" for examples), used explicit language where it wanted to make it clear that only those present at a meeting were to be counted in determining a majority (bold added for emphasis; italics in original):

The General Assembly has used the phrase "majority of the whole number" to refer to majorities of all eligible voters in other contexts, and when that "majority of the whole number" is limited only to those present at a meeting it has said so explicitly.*7 Courts and the Attorney General of this Commonwealth have relied on the presence or absence of such distinctions.*8 This Court should too.

*7 Compare, e.g., Virginia Code § 23-103 ("no order to remove a professor without the concurrence therein of a majority of the whole number of [the Virginia Military Institute's board of] visitors") with Va. Code § 28.2-1000 ("No action shall be taken by the [Atlantic States Marine Fisheries] Commission in regard to its general affairs except by the affirmative vote of a majority of the whole number of compacting states present at any meeting") (emphasis added).

*8 See Smiley v. Commonwealth, 116 Va. 979, 83 S.E. 406 (1914) ("the import of [the] plain and simple language of a statute authorizing appointment of a county superintendent of roads by "the vote of a majority of all the supervisors of the county" was "that the office . . . could only be filled by the affirmative vote of a majority of all the supervisors---that is, by affirmative votes cast by at least four of the six supervisors of the county"). See also 1997 Op. Atty Gen. Va. 37 (discussing differences in statutes requiring a vote by a majority of those "present and voting" versus a majority of "the members elected" to a governing body); 1983-1984 Op. Atty. Gen. Va. 271 (statute providing that "[a] majority of the members of [a park] authority shall constitute a quorum and the vote of a majority of members shall be necessary for any action taken by the authority" construed as requiring a majority vote of all members, not just a majority of a quorum; "[h]ad the General Assembly intended that a majority of a quorum is sufficient for an authority to act, it could have stated as much in unambiguous terms").
TEC stuck to the same argument in its Reply Brief, filed just two days before less than a "majority of the whole number of Bishops entitled to vote" in the House of Bishops gave their consent to the "deposition" of Bishop Duncan.

One can only wonder: How many of the 88 bishops who voted in favor of deposition would have done so had they been confronted with this direct evidence of the duplicitous position that TEC was then taking in the Virginia court with respect to the interpretation of virtually identical language in § 57-9 (A)?

Tuesday, September 23, 2008

There She Goes Again!

For an oceanographic scholar, + Katharine Jefferts Schori does not evidence much of a capacity for learning from experience. She is on course to repeat the same mistakes she made in San Joaquin, and which will make it that much more difficult for TEC to prevail in the Pittsburgh lawsuit it plans to file, once it has a puppet bishop named who can be the plaintiff. Here are just some of the problems that approach entails:

1. Since the entity recognized under Pennsylvania law as the "Diocese of Pittsburgh" (DoP) will have amended its Constitution to delete the language having it accede to TEC's Constitution and Canons, it is no longer capable of serving as a diocese of TEC under its Constitution.

2. That being the case, a new entity will have to be created, which can be (a) an Episcopal diocese, and (b) recognized as a legal entity under Pennsylvania law.

3. Since it will be a new entity, it cannot already belong to the Episcopal Church—it will have to join TEC after it has been organized.

4. And the only way a new entity can join TEC is to apply to General Convention to be accepted as a Diocese—i.e., it cannot become a diocese until July 2009 at the earliest.

5. That being the case, the members of Progressive Episcopalians Pittsburgh (PEP), the group that wants to remain with TEC, have from October 2008 until May 2009 to organize properly, hold a convention, elect a standing committee and approve (if they want) a provisional bishop.

6. But neither the provisional bishop nor the standing committee of the entity will have any basis on which to file suit against the former Diocese of Pittsburgh until next July, because they will not (and cannot) represent an actual diocese of TEC until then.

Watch the presiding bishop go for all the stakes, however, and try to claim that the changes to the DoP Constitution were unauthorized, and ultra vires. ("Under what language?" asks Mark McCall. "Under my reading of the Constitution, backed my my Chancellor, my Parliamentarian, and a number of leading canon lawyers who did not want me to reveal their names," she replies. "See you in court," says John Lewis.) She won't even bother to try to organize a new legal entity; she and PEP will claim that they still are the only lawful diocese around, and that they are still a diocese within the Church. (Will her lawyers try a sneak attack, as they did in San Joaquin, and file papers with the Pennsylvania Secretary of State to change the name back again? Probably, in an attempt to give themselves some superficial validity in the eyes of the law.)

But if that is the case, what is this entity they will be suing—that calls itself "the Episcopal Diocese of Pittsburgh in the Province of the Southern Cone"? How can a diocese sue itself? And how can a diocese be a member of two different provinces at the same time? And have two bishops, and two principal offices?

Such are the metaphysical mazes into which the current leader of TEC will lead both it and PEP. Only the Pittsburgh courts will be able to sort it out, and then after them there are the courts of appeal, and on up the ladder. Meanwhile, other dioceses will leave, similar lawsuits will be filed, and before long the entire structure of TEC will depend for its validity on the decrees of courts to come from four different states: California, Pennsylvania, Texas and Illinois---to say nothing of the U. S. Supreme Court.

Welcome to TEC, a church of either 106, 107, 108, 109, 110, 111, 112, 113 or 114 dioceses, depending on which attorney's opinion you get, and which court finally rules when.

How Low Can the Sun Sink on The Episcopal Church?

First abortion . . . .

Then terrorism - including the domestic variety . . . .

And now:

(See also here, and for a taste of how Israelis see this, listen to Jerusalem Post columnist Carolyn Glick:
Finally, of course, there is Iranian President Mahmoud Ahmadinejad's annual trip to New York for the UN's General Assembly opening session next week. Aside from being honored by leaders of the supposedly pacifist and clearly anti-Semitic Quaker and Mennonite churches, Ahmadinejad will be feted by newly elected General Assembly President Miguel d'Escoto Brockmann from Nicaragua.

See also this commentary (h/t - Pat Dague):
Perhaps it would be worth it to hold your nose and dine with the devil if it meant an opportunity to speak out about Iran’s repression and persecution, to be a voice for those who are suffering, and to demand that Islam offer reciprocity for the freedom of religion and decency of treatment that Muslims have received from Christians, Jews, and Baha’is. With Iran on the verge of a new level of repression, and religious minorities in Iran facing a new level of siege because of the proposed apostasy penal code, an American Christian leader is needed to speak with courage and forthrightness over a dinner plate. To use the phrase that mainline liberal church leaders are so fond of when it comes to attacking George Bush, a prophetic voice to speak truth to power. Ahmadinejad will hear such voices, but he will not hear them in the posh dining rooms of the U.S. mainline church leaders. He will hear them in the prison cells and court rooms of Iran.

The actual invitation comes from an organization called "Religions for Peace - USA", of which The Episcopal Church is a member. However, so is the American Jewish Committee, which led a protest march to Monday's rally at the UN against Ahmadinejad's appearance---and guess what? Unlike The Episcopal Church, it's not coming to dinner. And for those who shrug this off as just another instance of TEC's leadership being for "social justice", be sure not to miss Bishop Little's letter---it will set you straight.)

(Note: I'm taking a brief break from preparing the longer kind of post that usually appears here. So this is, for me, at any rate, a kind of "blogging lite." Blogging will return to a regular schedule after October 4.)

Saturday, September 20, 2008

God Is Working His Purpose Out

There comes a time when a curmudgeon simply has to lay down the cudgel for a while, and now is that time.  My legal background has been the generator of many a polemic at this site, because whenever anyone in my beloved Church takes the low road, or seeks short-term advantage at its expense, my nature does not admit of a silent, patient response. All of my inner circuits were kicked into high gear with the announcement that the September House of Bishops meeting would indeed include, despite a disclaimer to the contrary earlier, a resolution to consent to the illegal "deposition" of the Rt. Rev. Robert William Duncan, diocesan of Pittsburgh. The deposition so announced has now occurred, and The Episcopal Church will have to live with the consequences of that act. It has made its own chaos, and I shall pull back for a bit while it unfolds of its own accord.

I was brought up properly in the Christian faith, by saints like the Rt. Rev. A. W. Noel Porter (who confirmed me at age 12).  As a result I have no hesitation in recognizing when a true saint takes the stage.  The recent post "Worthy to Suffer", by the Very Rev. Robert S. Munday, Dean of Nashotah House Theological Seminary, reminds us all of our basic priorities as Christians, no matter what havoc the secular courts may wreak in Episcopal Church affairs. 

It is time to take a rest, at least until the Pittsburgh Diocesan Convention on October 4. With Dean Munday to guide us, we are meanwhile in the best of hands. Rejoice, therefore, and praise the Lord, for God is working His purpose out:

God is working his purpose out
as year succeeds to year:
God is working his purpose out,
and the time is drawing near;
nearer and nearer draws the time,
the time that shall surely be,
when the earth shall be filled
with the glory of God
as the waters cover the sea.

From utmost east to utmost west,
wherever foot hath trod,
by the mouth of many messengers
goes forth the voice of God;
give ear to me, ye continents,
ye isles, give ear to me,
that earth may filled
with the glory of God
as the waters cover the sea.

What can we do to work God's work,
to prosper and increase
the brotherhood of all mankind--
the reign of the Prince of Peace?
What can we do to hasten the time--
the time that shall surely be,
when the earth shall be filled
with the glory of God
as the waters cover the sea.

March we forth in the strength of God,
with the banner of Christ unfurled,
that the light of the glorious gospel of truth
may shine throughout the world:
fight we the fight with sorrow and sin
to set their captives free,
that earth may filled
with the glory of God
as the waters cover the sea.

All we can do is nothing worth
unless God blessed the deed;
vainly we hope for the harvest-tide
till God gives life to the seed;
yet nearer and nearer draws the time,
the time that shall surely be,
when the earth shall be filled
with the glory of God
as the waters cover the sea.

Words: Arthur Campbell Aigner (1841-1919), 1894
Music: Martin Shaw (1875-1958), 1915

Why the Vote Was Wrong

Louie Crew does not waste any time in updating his database on Episcopal Church bishops. Accessed just one day after the vote in the House of Bishops to consent to the deposition of the Rt. Rev. Robert Duncan, who is still (as of today, September 20) the diocesan of Pittsburgh, it already shows the see of Pittsburgh as "vacant." (The certificate of deposition will probably not be signed until Monday or Tuesday, in New York.)

It is, of course, a minor quibble, because the signing of the certificate of deposition (which will add one more offense to the catalog of canonical violations committed by the current presiding bishop) is a foregone conclusion. But it is yet another confirmation of the rush to judgment that was the most significant aspect of the vote to "depose" Bishop Duncan. In this post, I want to share the results of some mathematical analysis of the vote, made possible for the first time by the parliamentary request to have a roll-call vote.

(Praise and thanks are due to the stalwarts whose names appear below for the following action taken in the House of Bishops, as recorded in the official minutes, which preserved the vote for the analysis given here:
Bishop William Love then called for division with the following statement: “We the undersigned being voting members of the House of Bishops, hereby call for division of each and every vote of this House on any matter put to vote with respect to the status of the Bishop of Pittsburgh as a bishop and member of this House of Bishops and that each member’s vote, whether it be aye or nay, be entered in the journal.” This above call was signed by Bishops William Love, James Adams, David Reed, Michael Smith, Edward Little, Geralyn Wolf, Mark Lawrence, John Howe and Bruce MacPherson.)
There were 88 recorded votes to consent to Bishop Duncan's deposition, 35 votes against (counting a switch at the conclusion of the vote by the Rt. Rev. Dorsey Henderson of the Diocese of Upper South Carolina, who changed his vote from "aye" to "nay"), and four abstentions. For the purpose of the analysis which follows, I have used the helpful spreadsheet prepared by one of the industrious Elves at Titus OneNine from the official minutes of the meeting, and have made certain corrections with respect to some of the dioceses, and then built upon it, in the ways indicated below. For most of the analysis, I have counted the abstentions as "No" votes, because their effect is to deny a "Yes" vote just as much as a "No" vote does.

All right, let us begin with the first observations. Based just on the raw numbers, it would appear as though the motion to depose carried by a vote of 88 to 39, or 69% affirmative to 31% negative (remember, counting abstentions as a "No" vote). That would appear to be a vote that carried by more than 2 to 1, and so was definitive, would it not? (Incidentally, there is no mathematical way I can see to come out with the 64%-36% tally as reported here. 88 affirmative votes would be 64% of 137 total votes, not 127; while 39 votes would be 36% of 108 votes, so I cannot reconcile Steve Waring's numbers.)

Well, let us ask what the vote was by diocese. This will have the advantage of sifting out the "piling on" effect resulting from when, for example, four bishops from the Diocese of Los Angeles (the diocesan, the suffragan, and two assistant bishops) vote as a bloc. The results are as follows: 60 of 110 dioceses in The Episcopal Church voted for deposition, 33 voted against, plus the Convocation of American Churches in Europe ("CACE"), which is technically not a diocese, abstained, and thus made a total of 34 not voting to depose; and 17 dioceses were absent and not represented in the voting.

(Note to explain the slight discrepancies between my analysis and the one done in the spreadsheet at Titus OneNine: I have only 110 total dioceses, as shown and listed on page 6 of the 2008 Red Book. This counts the ten foreign dioceses in Provinces II, VIII and IX, each of which has a diocesan bishop entitled to a seat and vote in the House, but it does not count (as the Elfgirl did) the Episcopal Church in Micronesia, which is under the jurisdiction of the presiding bishop, and which does not have a separate bishop of its own. CACE is a special "case" [my apologies if you want them, but dry statistics can always use a pun or two]. While also not a Diocese as such, its Bishop is the presiding bishop of TEC, who belongs to no proper diocese, and it also has a "bishop in charge", the Rt. Rev. Pierre Whalon, who is under the supervision of the presiding bishop. Since both of them have a seat and a vote in the House of Bishops, and since both were present at the meeting, the Convocation needs to be counted just like a diocese in tallying the votes. Finally, in counting the number of dioceses who "voted" through a representative bishop, I included the Diocese of Pennsylvania, because even though its current bishop is inhibited and was unable to participate, its retired ["resigned"] Bishop, the Rt. Rev. Allen Bartlett, Jr. [who is currently serving as an Assistant Bishop in the Diocese of Washington] was present and did vote. Likewise, I have included dioceses where the Suffragan or Assistant was present and voted, but not the Diocesan [e.g., the Diocese of Alabama, where the Suffragan Bishop John McKee Sloan voted, while Bishop Henry Parsley was not at the meeting; this was also the situation for the Diocese of Long Island and the Diocese of Massachusetts]. So that explains, I believe, why T19 is reporting that only 56 dioceses voted to consent to deposition, while I have the number at 59. In either event, as both of us show from the numbers, it was not a vote of which TEC can be proud.)

So with those numbers, the percentages now work out like this:

Dioceses FOR: 59 (53%)

Dioceses AGAINST: 34 (31%)
(including CACE)

Dioceses ABSENT: 18 (16%)

Fifty-three percent is quite a different number than sixty-nine percent (the count by number of bishops), is it not? But wait---the numbers get worse.

The 88 to 39 tally counts ten resigned (technical TEC term for "retired") bishops who showed up in Salt Lake City to vote. (That is a story in itself: all ten who showed up voted in favor of deposition---including avowed Duncan opponents such as Bishop Otis Charles, who is [according to Louie Crew, who makes it his business to know] the Church's only other openly homosexual bishop besides the Rt. Rev. V. Gene Robinson of New Hampshire [who also voted to depose].) Also there was retired Bishop of Washington Jane Dixon, whose lawsuit to depose the Rev. Samuel Edwards Bishop Duncan actively opposed. It would thus appear that some of the retired bishops made it a point to come to the meeting so they could vote to depose Bishop Duncan.

But why should just the retired bishops who show up to vote be counted? If we want to compare bishops the way we did dioceses above, we need to count those bishops (both active and retired) who were absent from the meeting in order to get the true picture.

There are 300 current bishops in the House (as of August 2008---see the previous link), of which 152 are retired, and 148 are active. This means that, with only 117 (78+39) active bishops present at the meeting, there were 31 who were absent, as well as 142 retired bishops absent. So if we now recalculate the vote with those numbers, we have:

Bishops FOR: 88 (29%)

Bishops AGAINST: 39 (13%)

Bishops ABSENT: 173 (58%)

This looks very different, does it not? Only 29% of "the whole number of bishops entitled to vote" in the House of Bishops voted for deposition, while 71% did not concur, either by voting actively against, or by staying out of the vote. And yet the leadership of TEC proclaims that Bishop Duncan was lawfully deposed by a vote of his peers!

Now let us tease out the numbers in a different way. Suppose we go back to the vote tallied by diocese, and append the following data to the numbers: the number of parishes in each diocese, the number of baptized active members in each diocese, and the Average Sunday Attendance for each diocese (all data are from the 2008 Episcopal Church Annual, otherwise called the "Red Book"). We then run the totals by "yes" vote and "no" vote of each diocese, and we find:

Parishes represented in "YES" votes: 4,344 (58%)

Parishes represented in "NO" votes: 2,282 (30%)

Parishes not represented at meeting: 884 (12%)

Again, this is hardly an overwhelming majority of TEC parishes---and it ignores the fact that there are so many retired bishops entitled to vote who do not represent any jurisdiction.

(Note to techies: the total of 47 parishes for the "[Episcopal] Diocese of San Joaquin" as shown in the 2008 Red Book had to be adjusted downward to 18, the number currently claimed by that Diocese. And in the numbers that follow, estimates for baptized parishioners and ASA were used---but the overall totals are so large that the margin of error in the estimates could be 100% without affecting the percentages.)

It also turns out that the numbers for baptized members are within a percentage point of the parishes. And the ASA numbers show only that the dioceses that were unrepresented at the meeting had a much lower ASA than those that were: 4,964 versus 7,967 for the dioceses voting "yes" and 7,103 for the dioceses voting "no".

The numbers really start to get interesting, however, when one looks at the geographical spread of the data, and considers the level of each diocese's 2007 contribution to the TEC budget. Here is where the data starts to be telling: it shows that Bishop Duncan was deposed by a combination of the dioceses that are the biggest contributors overall to TEC, as well as by those that are in what has been called, in the political arena, the "blue-county corridors." (Click here for an animated map of how these areas have changed in the presidential elections from 1960 to 2004. Are we surprised?)

Total contributions to TEC by "Yes" dioceses: $20,593,549 (72%)

Total contributions to TEC by "No" dioceses: $ 6,237,162 (22%)

Total contributions by unrepresented dioceses: $ 1,621,881 (6%)

Do you begin to see how TEC is run by the wealthiest players? Only fifty-four percent of the dioceses voted to depose Bishop Duncan, but they contribute 72% of the funds coming to TEC from all the dioceses. (It's also more than three times as much as the "No" dioceses contribute.) The ones that voted against, of course, include dioceses like Dallas, which contributed zero dollars to TEC in 2007. They also include dioceses that are having trouble keeping members, like Central Florida (contributed just 2% of its income to TEC, instead of the recommended 21%), Rio Grande (4%) and Tennessee (4%).

[UPDATE 09/22/2008: A commenter at Titus OneNine suggested it might be more worthwhile to compare dioceses not by their contributions to TEC's budget, but by the sizes of their own budgets. That is easily done, because the TEC data gives the diocese's individual contribution as a percentage of its total budget---and one has also to correct for the exemption in the first $100,000 of income which TEC grants each diocese. The results come out as follows:

Total budgets of "Yes" dioceses: $129,911,718 (67%)

Total budgets of "No"/"Abstain" dioceses: $ 47,155,287 (24%)

Total budgets of absent dioceses: $ 15, 537, 963 (8%)

So the skew still holds: the "money" dioceses, while contributing 53% of the votes to depose, spent 67% of the total amount spent in 2007 by all dioceses in ECUSA; those dioceses spending just 24% of the total voted "No", with 31% of the total votes. From these figures one can also derive the following average comparison (in which all the "zero" contributions are smoothed out):

"Yes" dioceses contributed, on average, 16% of their non-exempt income to TEC, while

"No" dioceses contributed, on average, 13% of their total non-exempt income to TEC, and

Unrepresented dioceses contributed just 10% of their non-exempt income to TEC.]

The situation is even worse if we look just at Province I. Of the seven dioceses in that northeasternmost Province, only one---Rhode Island---voted against the deposition, and it contributed its 21% of income, or $436,335 to TEC in 2007. This amounted to 11% of the funds coming from that Province. The other six dioceses (Maine, Vermont, New Hampshire, Connecticut, Massachusetts and Western Massachusetts), however, all voted to depose, and together (89% of provincial contributions) accounted for a total of $3,395,472 to TEC, or a hefty 12% of contributions from all dioceses. (All dioceses were 21% tithers to TEC in 2007, with the exception of Vermont, which gave TEC 15% of its income in 2007, and Massachusetts, which gave 22%.)

Likewise, in the huge western Province VIII, only the absolute smallest of TEC's 110 dioceses---the Navajoland Area Mission, with just 9 parishes---did not vote for the deposition (it abstained), while four were absent and thirteen dioceses voted to depose. Just as in Province I, these latter dioceses were responsible for 89% of the total contributions to TEC from Province VIII. Together, the nineteen dioceses voting for deposition in Provinces I and VIII alone (17% of the total dioceses in TEC) were responsible for 28% of the overall contributions to TEC's budget.

The only province in which more dioceses voted against deposition (7) than voted for it (3) was the midwestern Province 7, which stretches from Kansas and Western Missouri south to the Texas and the Rio Grande.

Here are the diocesan voting and absentee totals organized by Province:

Province I: Yes - 6; No - 1; None absent.
Province II: Yes - 6; No - 4; 1 absent.
Province III: Yes - 8; No - 3; 2 absent.
Province IV: Yes - 10; No - 9; 1 absent.
Province V: Yes - 7; No - 4; 4 absent.
Province VI: Yes - 4; No - 3; 1 absent.
Province VII: Yes - 3; No - 7; 2 absent.
Province VIII: Yes - 13; No - 1; 4 absent.
Province IX: Yes - 2; No - 2; 3 absent.

A final useful comparison we can draw from the spreadsheet is when the vote is arranged by the length of tenure in office of the bishops. (As noted earlier, all ten retired bishops present voted for the deposition.) Here is a table showing the votes tallied by years of consecration, starting with the most recent first (and taking account of absences):

2005-2008: Yes - 18; No - 10.
2001-2004: Yes - 18; No - 11 (absent: 3).
1997-2000: Yes - 18; No - 9 (absent: 4, including +Duncan).
1993-1996: Yes - 16; No - 4 (absent: 6).
1967-1992: Yes - 18; No - 5 (absent: 1 [+Wimberley]).

These subtotals tell us that the level of opposition to +Duncan remained fairly constant despite the length of time a bishop had been in the Church, but that the number of his friends decreased with age. That trend might explain something about the current difficulties in TEC, and show how difficult it will be for it to reverse its course any time soon. [UPDATE 09/22/2008: Another commenter has pointed to the fact that the "No" votes increase in number as the bishops get younger, and cites this as a positive indication that the younger bishops care more about following the canons than do the older ones. Two different ways of seeing the figures---but saying what amounts to the same thing: it was chiefly the older bishops (those consecrated before 2001, who cast 59% of the votes to depose) who decided that Bishop Duncan had to go!]

What can we conclude from all these numbers? Given the ruling that only a majority of bishops present and voting are needed to depose, we have the following possible anomaly. Only active bishops are counted towards a quorum of the House, so of the 148 total active bishops in the House, 75 are needed for a quorum. A bare majority of such a quorum would then be 38 bishops. It would theoretically be possible, if the very largest dioceses and the very smallest dioceses made up the 75 present for a quorum, to depose a bishop on the 38 votes of those bishops who collectively represented just the least populated dioceses. (Due to the difficulty of presenting tables that work in all types of browsers, you can view the tabulation at this link.)

The tabulation shows that under the interpretation given by TEC's current leadership to Canon IV.9's language that it requires a "majority of the whole number of Bishops entitled to vote" in the House of Bishops, it would theoretically be possible for just 38 diocesans, representing just 1,263 of TEC's 7,510 parishes (about one-sixth), and 202,349 of its 2,310,094 members (less than one-tenth!) to unseat any bishop in the House without a trial, on charges that he/she had "abandoned . . . the doctrine, discipline or worship of this Church," or, in the language of the proposed revision to Canon IV.9 (to be renumbered IV.16), "in any other way."

By doing so, those 38 diocesans could flout the will of the 37 largest dioceses in the Church, having 4,184 parishes and 1,487,109 baptized members, or more than 64% of the membership of the Church.

Such will be the result if the changes to the Canons now being talked about are made at General Convention 2009 in Anaheim. And such already is the de facto situation in TEC, under the arbitrary interpretation of Canon IV.9 imposed on the Rt. Rev. Robert William Duncan.

Friday, September 19, 2008

Some Hierarchy!

consequence of TEC's deposition of the Rt. Rev. Robert Duncan---surely overlooked in the "prayerful" rush to judgment---is to confirm that The Episcopal Church is not a hierarchical organization.

How did that happen? I shall explain.

TEC is now forced to regard the see of Pittsburgh as vacant. And who can fill the vacant see? The Presiding Bishop? No. The House of Bishops? No. The House of Deputies? No. General Convention? No. The Executive Council? No. (I shall call all of these together "the usual suspects.")

Answer: Only the clergy and parishioners of the Diocese of Pittsburgh can.

That's some hierarchy. Were this the Roman Catholic Church, the Pope or a Cardinal would have a new bishop in the office on Monday.

Or consider this: who has the power to call a diocesan convention in Pittsburgh, now that there is no diocesan? Any of the usual suspects? No.

Answer: Only the Standing Committee of the Diocese, acting as the Ecclesiastical Authority when there is no bishop, can call a diocesan convention.

Again, that's some hierarchy.

Now consider the plight of the plaintiffs in the Calvary Church lawsuit. They no longer have a defendant---the "Bishop of Pittsburgh" is no more. Brought about by their own doing. What they have left are the Trustees of the Diocese, as well as some (but only some) of the members of the Standing Committee (who in fact are no longer on the Standing Committee!). So they cannot obtain any order from the court that would be effective to cause the diocese to do anything, until they cause the new members of the Standing Committee to be substituted in as defendants. Will a court be sympathetic to plaintiffs who have brought about the situation that requires them to ask for leave to bring in new parties? If it were my court, I would tell them that I am no referee, and that they should stop playing games.

I would also tell them that if their Church is as "hierarchical" as they say it is, they should simply bring in the next rank up in the hierarchy---and who would that be?

As I say, that's some hierarchy.

AKMA reminds us that it is International Talk Like a Pirate Day. (Aside: For those so inclined, there is even an entire Pirate Eucharist [Excerpt from the Credo:
. . .
Far us and far arr salvation
he opened the hatch o’ heav’n
and dropped into the hold:
by the pow’r o’ the Holy Ghost
he became incarnate from the Virgin Mary,
and was made a swabbie.
Fer arr sake he was keel-hauled by that scurvy dog,
Pontius Pilate;
and was sent t’ Davy Jones’ locker. . . .]
complete with a "Pirate Gloria" which you can download from this page and listen to, if you have Windows Media Player. Or, if you're in Sacramento, you can go to an actual Pirate Eucharist service this evening at 5:45 p.m. at Trinity Cathedral. But I digress.)

So I would think that the response of those in TEC who are running this farce, when they find out that they have just demonstrated with their actions the utter lack of any hierarchy in their structure, would be in keeping with the occasion:


Thursday, September 18, 2008

What Have They Wrought?

Despite last-minute pleas for reason and common sense to prevail, the House of Bishops of the Episcopal Church has voted to depose Bishop Robert Duncan of Pittsburgh, by a recorded vote of 88 to 35, with four abstentions. It is now appropriate to ask: what have they accomplished? What have they wrought?

(Note: my use of the pronoun "they" in this post refers only to the majority, and not to the courageous 35 who voted against the tyranny of the majority. My hat goes off to the latter.)

1. Have they in fact legally deposed him? No. The motion in fact failed, for lack of the required number of those in favor. Counting active and retired bishops, there are approximately 300 bishops entitled to a seat and vote in the House (there were 294 as of the last meeting, in March). Given what the plain language of the Canon has always required, there needed to be at least 151 or so bishops present at the meeting and all voting "Yes" for the consent to deposition to take effect.

2. Did they even try to follow the Canon? No. The announcement of the meeting on August 20 contained no hint of any vote to consent to deposition being on the agenda. It was only on September 12---five days before the meeting began---that the plan for the vote to be held was announced. So there was no attempt, not even a pretense of going through the motions, to do what was necessary to have the required number of bishops in attendance.

3. Were the parliamentary rulings announced in advance of the meeting valid? No. The announcement that they would require only a simple majority of those present and voting was an admission of their cowardice in failing to call together the number of bishops that the Canon requires. And both that ruling, as well as the ruling that the deposition could go forward despite there having been no previous inhibition of Bishop Duncan, were based on the Chancellor's and the Parliamentarian's resolution of what were claimed to be ambiguities in the language of the Canon.

NEWSFLASH for the Chancellor and the Parliamentarian: The House of Bishops governs itself by Roberts Rules of Order in situations not expressly addressed by the House's own rules. And Roberts Rules Revised (latest [10th] edition) provides, at page 573:
Each society decides for itself the meaning of its bylaws [here: Canons]. . . . An ambiguity must exist before there is any occasion for interpretation. . . . Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question.
(Emphasis added.) So neither the Chancellor nor the Parliamentarian was allowed to decide the question of "ambiguity" in advance of the meeting---no one, not even the Chair, was so authorized. The question was required to be put to the meeting itself for a vote (but only if there was an ambiguity in the first place!), and that was not done---instead, the Chair made "rulings", both in advance and in the meeting, and the appeals from the rulings were denied, by voice vote. So now we have another canonical (parliamentary) violation to add to the catalog.

4. Have they managed to stop the vote to amend Pittsburgh's Diocesan Constitution from taking place? No, again. The Standing Committee will temporarily replace the Bishop, as the Constitution provides, and the Convention will go forward as scheduled.

5. Have they achieved a self-fulfilling prophecy, in making inevitable the withdrawal of the Diocese from TEC that they wanted to prevent? Emphatically, YES!

So it is that we may ask, not with Samuel F. B. Morse, "What hath God wrought?", but instead:

"What have they wrought?"

Well, whatever it is, it is entirely of their own making. One of the Bishops who voted to depose is reported to have said, after the vote: "Our decisions today were very difficult and came out of our deep love for our Church, a commitment to honor our ordination vows, and a desire to strengthen the Episcopal Diocese of Pittsburgh.” (I have added the emphasis.)

UPDATE 09/19/2008: Continuing with the consequences of what they have wrought, they now evidently plan to "strengthen" the "Diocese of Pittsburgh" after it has left TEC by "reconstituting the Standing Committee." Do they not even see the contradiction there? If the Diocese has left, no Diocese remains to have a "reconstituted Standing Committee," unless and until a new unincorporated association is organized under Pennsylvania law and can meet and elect one. And then it will have to apply to General Convention to be admitted as a full Diocese---something that cannot happen before July 2009. (For details, see this earlier post. I do not claim to know any Pennsylvania law, and am open to correction here by someone who does, but I would be surprised to learn that the law of unincorporated associations is different in Pennsylvania from everywhere else.) This is exactly what landed TEC in difficulty in San Joaquin, and now they are repeating the same mistakes all over again!

Quos deus vult perdere prius dementat.

A "Trouncing"? Or a Misfire?

Progressive Episcopalians Pittsburgh have published a paper by Dr. Joan Gundersen, a specialist in Episcopal Church history, which was written in response to attorney Mark McCall's study published at the Anglican Communion Institute, "Is the Episcopal Church Hierarchical?" (I wrote a brief summary of its 89 pages here.)

Over at his Preludium site, Canon Mark Harris trumpets: "Gundersen Trounces McCall: Episcopal Church IS Hierarchical." (The link to Gundersen's paper at Preludium is currently broken, and you should follow the one above.) I would not be so quick to rush to the bleachers, Canon Harris.

I have had time to give Dr. Gundersen's paper only a cursory look this morning, but what I have read is enough to tell me that she writes from the standpoint of a church historian, and shows little understanding for, or appreciation of, the legal context in which Mark McCall's arguments are carefully couched. His paper was, after all, an analysis of a legal problem: would a court of law today be correct in holding that The Episcopal Church is hierarchical?

Dr. Gundersen cites as a "fatal flaw" Mark McCall's supposed omission of some early language from Article 2 of the 1785 PECUSA Constitution:
And if, through the neglect of the Convention of any of the Churches, which shall have adopted, or may hereafter adopt this constitution, no deputies either lay or clerical, should attend at any General Convention, the Church in such state shall nevertheless be bound by the acts of such Convention.

To Dr. Gundersen, this language demonstrates that the Church's dioceses were subordinate to General Convention from the start. But Mr. McCall actually refers to the very same language at note 44 of his paper (text of the note is on p. 81):
The first constitution contained a provision making General Convention actions binding on dioceses that were not present. Id., p. 99. In the jurisprudence of the time, explained above in connection with the treaty nullification controversy, this established General Convention as a legislative, not a consultative, body. In legal terminology, this is a rule of applicability, not a rule of priority. It subjects General Convention legislation to the usual rule of priority, the last in time rule, absent specification of another rule of priority using the language of hierarchy. It is significant that the highly competent lawyers drafting TEC’s first constitution expressly included a rule of applicability, but omitted a rule of priority. In any event, this provision was later deleted from TEC’s constitution.
(Bold added for emphasis.) It is apparent that it is Dr. Gundersen who has not read Mark McCall's paper, for she neither acknowledges this footnote, nor does she state that the language in question was deleted in the comprehensive revision of the Constitution approved in 1901. The leading authorities on the history of TEC's Constitution, Messrs. White & Dykman, have this to say about the deletion of the language relied upon so heavily by Dr. Gundersen:
Finally, the provision that dioceses unrepresented in any General Convention were nevertheless to be bound by the acts of such Convention was omitted, presumably because the time when it had any useful application had long since passed.
(White & Dykman, Vol I, p. 31; italics added for emphasis.) So the language which Dr. Gundersen proudly exhibits as a "fatal flaw" in Mr. McCall's argument was in fact deservedly relegated to footnote status in his paper.

There are numerous similar misperceptions underlying Dr. Gundersen's paper---she confuses the legal principle of "subsidiarity" with that of "subordination", and she treats "supremacy" as a brand-new concept having its birth at the Constitutional Convention in Philadelphia in 1789, when in fact every colonial churchman had known of King Henry VIII's "Oath of Supremacy" since the time of the beheading of Sir Thomas More for refusing to take it.

Doubtless there will be more extensive analyses appearing in coming days from other knowledgeable attorneys and legal scholars that will show in more detail the failings of Dr. Gundersen's paper to engage the principal legal ideas behind Mr. McCall's work. (Certainly not the least of those will be a refutation by Mark McCall himself, to appear on the website of the Anglican Communion Institute. UPDATE 09/19/2008: Mr. McCall's response to the Gundersen article is now posted.) But for now, at any rate, I would not want to join the bleachers where Canon Mark Harris and Lionel Deimel are egging on the crowd of TEC supremacists. They and those for whom they write may end up, after all, with the egg on their faces.

Tuesday, September 16, 2008

The Coming Perfect Snafu

Though I am fortunate not to live anywhere in the paths of Hurricane Gustav or Hurricane Ike, I feel I can sympathize with those who do, because I foresee a storm of similar magnitude that is about to engulf The Episcopal Church. I feel the rise in temperature and humidity, the winds beginning to whistle, and the sudden silence of the innocent animals as they look to their masters for protection against the coming fury of the gale. I see lowering storm clouds not far off, billowing up to occupy the entire sky in one direction. One is left with a sense of frustration and hopelessness in the face of forces that have gathered at this point in space and time, as they seem unstoppable on their path to calamity and destruction.

On the one hand, the Bishops of the Church are already on the move from the four corners of the country, assembling to meet in Salt Lake City starting tomorrow. Despite an early announcement to the contrary, and despite the issuance on August 20 of a call for the meeting that made no mention of the fact, the agenda for the meeting is now clear: the powers that be have decreed that the assembled episkopoi (ironically, from the Greek word for "overseer") will be asked to consent to the immediate deposition of one of their own, without a trial.

On the other hand, at least one Bishop is staying right where he is, in Pittsburgh, and will not attend the meeting, because he deems the outcome of the vote is a foregone conclusion. He has appealed to his colleagues' sense of justice, and asks that at the very least, they do him the courtesy of a roll-call vote.

What I see unfolding in plain view is a repeat of the canonical fiasco that occurred at the March 2008 meeting of the House of Bishops in regard to the "deposition" of Bishop John-David Schofield (not to forget in the process the equally uncanonical "deposition" of Bishop William J. Cox---but he, at least, was not a sitting diocesan bishop). Having learned nothing from the storm of protest that greeted those actions, the Chief Kaitiff (as I now am impelled to dub her) is bound and determined that they shall be repeated. (Say you're happy now, once more, with feeling!)

Given the agenda she announced for the Church even before she began her duties, this is not surprising. But what is mysterious to me, at this point at least, is why Bishop Duncan should have signaled that he will abide by the results of an illegal vote:
First, whatever happens on Thursday as to my status, the Diocese will carry forward under rules long-ago established. If I am “removed,” the Standing Committee will be the Ecclesiastical Authority. Together with all the leadership presently in place, both appointed and elected, the Standing Committee will carry us through to our October 4th Annual Convention and beyond. We as a Diocese will not be intimidated or turned from our over-riding commitment, which is faithfulness to our Lord and Savior Jesus Christ within the mainstream of Anglicanism.
Is this an attempt to escape the legal and canonical entanglements that would follow if Bishop Duncan, like Bishop Schofield, refused to treat the deposition as having any effect? (Of course, the vote to depose Bishop Schofield came after he had already transferred to the jurisdiction of the Southern Cone.) Because if that is his wish, I do not foresee its being granted. If, as he tells his parishioners, the action by the House of Bishops will simply result in his replacement by the current Standing Committee as the Ecclesiastical Authority of the Diocese of Pittsburgh, does he not anticipate that there will immediately issue an edict from the topmost reaches of 815 Second Avenue along these lines? (Here is where the recent discovery conducted by the Calvary plaintiffs will be sought to be deployed, in order provide a hypothetical justification for the Chief Kaitiff's refusal to recognize the elected members of the Standing Committee based on their declared intentions to join with their bishop in leaving TEC.)

[UPDATE: See the comments below. I did acknowledge, with my phrase "at this point at least", the possibility that there was a superior strategy unknown to me, and my ignorance has been repaid in spades.  The parishioners of Pittsburgh, like the Burghers of Calais, are fixing a standard far above the norm of ordinary Christian forbearance, and are setting an unparalleled example for those in Ft. Worth, Quincy and elsewhere to follow.  I salute their determination and courage in the face of what is surely to come.] 

And once the Standing Committee has been officially "derecognized," the plaintiffs from Calvary Church will have been handed a trump card with which to convince the Pittsburgh Court of Common Pleas, which has been keeping an eye on the transition, to restrain them from exercising any authority at the Diocesan Convention on October 4. (Note: but see this comment by someone who is on the ground.  I do not say the same attempt would not be made if Bishop Duncan refused to step down---it almost certainly would.  The difference would be that Bishop Duncan's refusal to acknowledge the validity of the vote would not give the Calvary plaintiffs that foot in the door that its recognition, or de facto acceptance, would---and I am speaking here as a litigator first, because that is what I do.  Please understand, you folks who are on the front line in Pittsburgh, that I am not trying to second-guess your attorneys' strategy. I have the greatest respect for them, and am confident that with your determination and their skill, the combined forces of TEC will be unavailing. That is not to say that TEC will not attempt the assault.)

The roller-coaster drive to get this matter before the September meeting of the House of Bishops, come hell or high water (the latter literally), tells me that we are seeing a chess game played out here, and that (at least for the Diocese of Pittsburgh) the endgame is upon us. I see no alternative but that TEC and the Calvary plaintiffs will strive their utmost to block the vote on amending the Diocesan Constitution from taking place. Ex parte motions, temporary restraining orders, emergency appeals---the full panoply of the litigator's art will be called down upon the unfortunate participants, who simply want an opportunity to express their will. It is the coming perfect snafu (and for those of you who lived through World War II, you don't even need to follow the link).

The one thing---no, actually the two things---from which I draw some small comfort are that +Robert Duncan has the courage of a lion, and that he has the able assistance of some of the best Church attorneys in the field. But that will not stop the need to provide shelter and protection for the innocent ones who are about to get swept up in the storm.

May I make one last appeal, please, to the bishops assembling at Salt Lake? Do not, I implore you, lend your support to this folly any longer. For folly it is, and none will emerge from it unscathed.

Monday, September 15, 2008

Why Do the Canons Matter? (Part II of Two Parts)

An Answer to the Rev. Canon Mark Harris and the Rev. Canon Elizabeth Kaeton
(Part II of Two Parts)

In Part I of this two-part post, I showed why the proposed application to the Rt. Rev. Robert Duncan of Canon IV.9, entitled "Of the Abandonment of the Communion of This Church by a Bishop", made no logical sense. The post was a response to blog postings and comments by the Rev. Canon Mark Harris and the Rev. Canon Elizabeth Kaeton, which essentially asked: "What is the problem?"

In order to provide them with a comprehensive response, I will in this Second Part approach the question from their point of view, namely, that Bishop Duncan is already guilty, without the need of any trial to establish the fact, of "abandoning the Communion of this Church." I develop the topic as an exercise in the proper exegesis of the text of Canon IV.9. So the essay resumes from where we left off in the previous post, and remember---I am addressing Canon Harris and Ms. Kaeton directly:

Now let us approach this exercise in exegesis from the opposite point of view, that is, let us assume that your conclusion that Bishop Duncan has already violated the provisions of Canon IV.9 is somehow logical and correct. What would the premisses and logical consequences of such a view be?

1. Doubtless it would entail the proposition that "the Communion of this Church" is something different from the "Communion" that this Church shares as a constituent member of the Anglican Communion.

2. But if that "Communion" is different, then just what does it consist of, and how does it foster the growth of The Episcopal Church within the wider Anglican Communion? And if the drafters of the Canon had wanted to deal with a bishop abandoning just The Episcopal Church, why did they need the word "Communion"? Why not just draft a Canon that provided for the deposition of a Bishop who left The Episcopal Church, pure and simple?

3. And by the same token, if the "Communion" as referred to in the Canon is something that members of The Episcopal Church share with each other, and so is something that a bishop such as Bishop Duncan could be seen "to abandon" by joining another province of the Anglican Communion, then just what is "the Communion" of which The Episcopal Church professes to be a part in declaring, in its Constitution, that it "is a constituent member of the Anglican Communion"?

4. Finally, the current version of Canon IV.9 retains the 1853 language that it is the "formal admission into any religious body that is not in communion with [The Episcopal Church]" which constitutes "abandonment." But by the same logic in reverse, then joining a religious body which is in communion with The Episcopal Church does not constitute abandonment, otherwise the prohibition would make no sense whatever. Bishop Duncan has not yet affiliated himself with any religious body outside of The Episcopal Church. So please explain how, in your rational view, declaring himself ready to affiliate with the Province of the Southern Cone, or supporting the measure before the diocesan convention to do so, constitutes an "open renunciation of the Doctrine, Discipline or Worship" of The Episcopal Church.

5. Because (remember, you are being rational here) if joining a Church that is in communion with The Episcopal Church cannot be charged as an abandonment of "the Communion" of this Church, then by the same token, the "Doctrine, Discipline and Worship" of this Church must be the same as the "Doctrine, Discipline and Worship" of the other Anglican Communion Church.
(There is no escape from the ironclad logic of this conclusion, as we shall see in the subsequent paragraphs. )

6. Otherwise, if it were not the same, then the inescapable conclusion would be that The Episcopal Church does not share a "Doctrine" in common with the other churches of the Anglican Communion---i.e., it professes a "Doctrine" that is different from the rest of the Communion (such as, perhaps, that any person in a same-sex relationship is not thereby disqualified from the clergy?). But then it should not claim in the Preamble to its Constitution that it is "a constituent member" of the Anglican Communion.

7. Or alternatively, the conclusion could be that The Episcopal Church does not share a "Discipline" in common with the other churches of the Anglican Communion. But if that were true, then it would mean that by the very act of joining another church within the Anglican Communion, a Bishop would abandon the "discipline" of The Episcopal Church. And since the Canon makes it an abandonment to join a church not "in Communion with" TEC, it cannot logically be an abandonment of the Church's discipline to join a church that is in communion with TEC.

("Discipline", in the case of a Bishop, means subjecting himself to the governance of an ecclesial body, and the Synod of the Southern Cone is just as capable of fulfilling that function as is General Convention. If renouncing "the Discipline of this Church" means no longer subjecting oneself to the authority of General Convention, then every bishop or priest who transfers to another Anglican province is guilty of an "open renunciation of the . . . Discipline . . . of this Church", and it would be impossible for the orders of this Church to be recognized in any other province of the Anglican Communion. This logic may be difficult at first encounter, but it permits no other conclusion. So please be sure that you have tracked it before proceeding further---otherwise you will fall prey to non-sequiturs.)

8. The only other logical possibility is for the charge of "abandonment" to derive its substance from the fact that the "worship" of The Episcopal Church is different from the "worship" of the rest of the churches with which it is in Communion. But such a conclusion would read The Episcopal Church right out of the Anglican Communion, and not even the Property Task Force has taken things that far. At any rate, there have been no complaints thus far that the actions of Bishop Duncan constitute an "abandonment" of "the Worship" of The Episcopal Church.

With those eight logical steps, we have exhausted the rational possibilities to be inferred from your expressed conclusion that Bishop Duncan has already violated Canon IV.9 sufficiently to merit deposition in September. All of those possibilities, as just demonstrated, lead to logical contradictions. Thus, based on just a simple exegesis of the Canon's historical language, and not on the further corroborations to be drawn from its legislative history (see, in addition to this post, my posts here and here for those), the conclusion inescapably follows that Bishop Duncan has not yet violated any of the provisions of the Canon that would merit a sentence of deposition.

Can you begin to understand why we conservatives, who live (and perish) by the canons our Church has in General Convention adopted, are so distressed by the abuse of them which the prosecution of Bishop Duncan entails? If so, I congratulate you on the progress of your understanding----but believe me, you have not seen anything yet.

The reason for that last statement is simple: the plain language of Canon IV.9 does not allow the deposition of a Bishop for whom consent to his "inhibition" has not been obtained from the three senior bishops of the Church. The latest announcement to the House of Bishops expressly acknowledges as much, but claims the right to proceed with a resolution for deposition anyway. This claim is logically incoherent, and thus is bogus. If you are rational, and can understand the plain language of Canon IV.9, there is simply no logical avenue which you can take to arrive at the conclusion that a Bishop who has not been inhibited can be deposed under Canon IV.9 without a trial.

To support this last statement, I now shall ask you to look very closely at the graphical presentation of the language of Canon IV.9 visible at this link. The paragraphs and sentences have been arranged according to their relative hierarchy within the Canon, so that anyone may see clearly what provision pertains to what section. Notice, first, that section 2 is all about an inhibited Bishop: it begins with the language "Unless the inhibited Bishop . . .". There is no language in section 2 that applies to a Bishop who has not been first inhibited.

Take a minute, please, to absorb the impact of that last statement: There is no language in section 2 that applies to a Bishop who has not been first inhibited.

But the Presiding Bishop now wants to bring to the floor at Salt Lake City a resolution to depose Bishop Duncan for alleged violations (which, as just demonstrated above, are not in fact actual violations) of Canon IV.9, regardless of the fact that she did not obtain the requisite consents to "inhibit" him.

So not only are the views you have expressed on your blogs, as quoted earlier, contrary to the plain language of the Canon, in that there has been no "abandonment of the Communion of this Church" by virtue of Bishop Duncan's expressing his support for affiliating with the Province of the Southern Cone, but the very act of bringing a Resolution to depose him before this meeting of the House of Bishops at Salt Lake City next week will be itself a violation of the language of the Canon that is invoked.

I cannot make it any plainer than that. If you are in any doubt about that conclusion, please go back to the top, and start over: it all proceeds by traditional logic, and there are no trick steps or logical fallacies in the argument. If you somehow think you have a logical basis on which the House of Bishops could conceivably proceed rightfully with the deposition of Bishop Duncan next week, I beg you to let me know what it is. The conservative blogworld awaits your rational response.

Now, to the Rev. Canon Kaeton's question: "Why do I care?" Well, Canon Kaeton, if you have tracked the argument thus far, you should be able to answer your own question. Some time ago, you yourself took an oath to observe "the Doctrine, Discipline and Worship" of The Episcopal Church. I assume you will agree that it was not a meaningless oath, and I shall further assume that you strive in your daily life as a minister of the Church to be faithful to it. My return question to you is: what has Bishop Duncan done, in your humble opinion, that is any less faithful to that vow than what you have done in the course of your ministry?

If you contend that he has advocated the transfer of his diocese to a different province in the Anglican Communion, then I shall refer you to points 1 through 8 above, the logic of which is inescapable. A transfer to a different Church in the Anglican Communion is not, and cannot be, an "abandonment of the Communion of The Episcopal Church", so long as The Episcopal Church is a "constituent member" of the Anglican Communion.

To drive home the point about why the Diocese of Pittsburgh has the free right to transfer to a different province, I would refer you to Article VII of the Constitution of the Episcopal Church, which says in its entirety:
Dioceses may be united into Provinces in such manner, under such conditions, and with such powers, as shall be provided by Canon of the General Convention; Provided, however, that no Diocese shall be included in a Province without its own consent.
"Provided, however, that no Diocese shall be included in a Province without its own consent." The language means that a Diocese belongs to a Province only for so long as the Diocese gives its consent, because under long-standing legal doctrine, no legislative body (e.g., the convention of a diocese) can bind the decisions of future sessions of that body. Each new diocesan convention has the power to revoke the consent previously given to belong to a given province, and to join a different province. Under this provision, the Canons have been amended countless times to define which dioceses are part of which provinces, and in each case, the consent of the diocese in question was obtained before the canonical change became effective. (Interestingly, there is no language in the Constitution which requires a Diocese to belong to a province within The Episcopal Church, but only that it be part of "a Province". Thus the Constitution itself could literally be read as not forbidding what the Diocese of Pittsburgh proposes to do. Such a reading also comports with the views expressed in the paper by Mark McCall published by the Anglican Communion Institute.)

If you nevertheless, in spite of all the logic adduced here, contend that such an advocacy on Bishop Duncan's part justifies his deposition from the orders of this Church, then you are serving as a textbook example of how The Episcopal Church has isolated itself from the rest of the Anglican Communion: you are not willing to allow TEC bishops to transfer with their dioceses to another province without first deposing them, and you refuse to recognize the orders which other provinces in the Communion recognize.

I am aware that both of you believe that at bottom, it is a matter of property; that a bishop and even a diocese might be free to leave TEC, as long as they do not try to "steal the candlesticks." Doubtless you are relying on the provisions of the Dennis Canon to be self-enforcing, but I would remind you that the language of the Dennis Canon has no application to property and assets held by a diocese (as opposed to held by an individual parish). And the Dennis Canon is not exactly a model of how to establish a valid trust---but let us leave that for another post.

In conclusion, the short answer to the Rev. Canon Kaeton's question "Why do I care?" is this (I am sorry for your sake if you think I have wasted your time in getting there):

You do not "have" to care---no one is forcing you. But if you do not, you are thereby cutting yourself off from the rest of the Anglican Communion. And if you do not care about the Anglican Communion, then I say to you: "Godspeed---you have chosen your own 'Communion,' and you are welcome to make of it what you can, in Christ's name."