Friday, October 31, 2008

The Dennis Canon: A Dialogue with Craig M.

Reader Craig M. has left a comment on my latest post about the Dennis Canon which is most helpful and thoughtful, but too lengthy to be relegated to the comments section. It deserves a post of its own in response, so I shall quote it here, along with my comments in reply:
I appreciate the frustration, but I have to disagree with the legal reasoning of this post.

1) Legislative versus Judicial Act:
A legislative body certainly may pass all manner of laws governing the creation and civil law recognition of trusts as well as the duties and decision standards of fiduciaries. See, e.g., Uniform Trust Code.
My remarks on this topic were also the subject of a debate at StandFirm, in which DavidH (a Virginia attorney) took me to task in the same way that you do. Both you and he seem to have read my remarks to mean that a legislature has no business saying what form a trust must be in to be valid, when it does that all the time. I agree that such a definition of form is a proper legislative function, and that is not what I was talking about. I was speaking of the judicial function of determining, as a matter of law and fact, when a particular trust has satisfied the legislative (or common-law) requirements for a trust to be recognized and have effect. As a judicial function that is fully in the province of the courts, a legislature has, as I said, no business trying to usurp that role.

It seems to me that section 5 of the Dennis Canon attempts to do just that. Having declared the imposition of a trust on all local church property in section 4, the Canon then purports to say that no further action by a diocese "shall be necessary for the existence and validity of the trust." (Emphasis added.) Maybe that is so for TEC's own purposes, and as a matter of law in some States (e.g., New York), and maybe it is not so in some other States (e.g., New Hampshire). The point is that it takes the courts in each State to determine that fact, regardless of what General Convention puts in its Canons. That is all I meant to say, and I apologize if my language was insufficiently precise or clear.
Further, the US Supreme Court in Jones, 443 US at 606, while arguably dicta, would seem to provide whatever express Judicial legitimacy required for the the Dennis canon's legal effect: "Alternatively, [to ensure TEC control of local parish property in the event of a dispute], the constitution of the general church can be made to recite an express trust in favor of the denominational church."

Basically, in 1979, the Supreme Court told TEC and all other denominations: "If your national structure wants to ensure control over local property, there are a couple of ways to do it, including by amending your national, governing document to recite an express trust over local affiliate property."
"Arguably" dicta, Craig? I would submit that the language telling churches how to go about imposing an effective trust on local church property is unarguably dicta, since there was no such point involved whatsoever in the facts of Jones v. Wolf. It was not the holding of the case, which appears a couple of pages earlier, as I demonstrated in this earlier post. Indeed, what it amounted to was unsolicited legal advice, in response to an objection made by the dissent, which is improper in a Supreme Court opinion (but when do they ever let that bother them?). The reason it is improper is precisely because of what has happened here: evidently you, DavidH, and the other attorneys who argue as per your statements above, as well as the Court of Appeals in New York, the Fourth District Court of Appeal in California, and other courts, feel free to take the obiter dicta of Jones as an additional ratio decidendi.

My legal training taught me always carefully to distinguish between what was necessary to the holding of a decision, and what was unnecessary, or mere obiter dicta. I submit that no one is on legally solid ground in reading Jones as "holding" that "[to ensure TEC control of local parish property in the event of a dispute], the constitution of the general church can be made to recite an express trust in favor of the denominational church." Such a repeated misreading of Jones is at the crux of the problem here.

To continue with Craig's comments:
If a local parish didn't want to be subject to the Dennis canon, it should have disaffiliated with TEC as soon a feasible after the adoption of the canon. There's something of a laches defense here: one can't enjoy the "benefits" (whatever those might be) of being part of a national organization, find oneself at opposition to some other faction of the national group, and decide its time to take your toys and go home. One doesn't get to decide the rules don't apply, just because they're now inconvenient. Frankly, a better tactic might be to concede the point about the property, tell TEC to take it, but then have the current parishioners etc. sue under concepts of fraudulent misrepresentation regarding their contributions, etc. If one could get into a realpolitik situation where there are cross-claims of approximately similar values (10 years' worth of contributions + interest + punitive damages?), the local church would have significantly better negotiating posture vis-a-vis TEC to come to a resolution.
You offer some interesting suggestions here, Craig---I hope some parish takes you up on them. But I have to observe that a defense of laches (or unjustified delay in acting), like a defense of waiver or estoppel, would require a showing, first, of a definitive knowledge on the part of a given parish about the Dennis Canon's existence, and second, a full appreciation of its intended effect. The Episcopal Church did nothing to publicize the Canon's passage to the thousands of parishes in 1979 (indeed, for a number of years it could not even say definitively that the Canon had actually been adopted at General Convention), and I doubt if you would find one non-lawyer parishioner in ten thousand today who could identify what the Canon is, or what it purports to say. In their decisions upholding the Canon, the courts usually throw in a "besides, you didn't do anything about it" remark as a makeweight to buttress their weak arguments that an effective trust can be created by a trustor who does not own the property being placed in a "trust." (In the same way, TEC and its Presiding Bishop attempt to justify their failed "depositions" of Bishops Cox, Schofield and Duncan on the ground that nobody objected---or if they did, the objection failed to carry.) Such an argument literally begs the question, which is whether or not the act in question was valid to begin with.

2) "Legally Cognizable Form": I will admit, I don't understand from where the perceived disconnect with this phrase comes. "Legally cognizable" in SCOTUS jurisprudence merely means a claim or argument that is able to be properly considered by a court. If the canon were written, "It is an ecclesiastic duty and tenet of faith that all member parishes must (irrespective of civil law) refuse to defend against real property actions instituted by the Diocese," then a court wouldn't be able to properly consider it. While the intent behind it might have been the same as the Dennis canon (the imposition of a trust on all locally held property), the result is not. A civil court cannot properly determine if something is a religious obligation and what should happen if a dispute arises about the fulfilment of ecclesiastic obligations. However, when something is expressed in a "legally cognizable" form, it's merely something a court can look at and not have to consider theology in order to resolve the dispute. While not an exhaustive list, the Supreme Court clearly indicated that a court may properly review the language of the property deeds, the local congregation's charter, and the constitution of the general church for language that would provide for an express or an implied trust (emp. added).

And that's what the NY CoA did, saying, in essence, 'we don't see anything
[your comment ends abruptly at this point: did you mean to complete the sentence with the words "wrong here"?]

Given that Justice Blackmun's language at this point is dicta, I cannot attach much significance to his words "legally cognizable form" if they are used again simply to beg the question of whether a valid trust is created in law by the adoption of a national church canon. Your argument says that the local deeds forming the record chain of title can be overridden unilaterally by a legislative pronouncement that forms no part of the chain, because the legislative pronouncement is somehow in "legally cognizable form." When you say that all such language means is that a court can give effect to it, do you see how the argument becomes circular? "A national canon can be read to create a trust contrary to local deeds because it is in the legally cognizable form of a canon or constitutional provision to which a court can give legal effect, since the canon is legally cognizable." The best response to this circular argument, and to the New York Court of Appeals, is the one given by the Supreme Court of New Hampshire in Berthiaume v. McCormack, 153 N.H. 239, 831 A.3d 539 (2006), in which it held, first, that a court must “consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use or disposal of church property.” (Id. at 248.) It justified this ranking by holding that such an approach “is consistent with [the] rules governing the resolution of property disputes generally. In resolving such disputes, [courts] consider extrinsic evidence and the circumstances surrounding a conveyance to determine the parties’ intent only if the language of the relevant documents contains either patent or latent ambiguity.” (Ibid. [citations omitted].)

And that is why I suggest that the contrary approach of the New York Court of Appeals violates the Establishment Clause, by giving preference to a church under a pretended "neutral principles" approach that no other trustor receives in the law. (Maybe it violates the Equal Protection Clause on that ground, as well.)

Again, I think the line quoted above from Jones clearly indicates that a constitutional canon is sufficient. One of my primary areas of practice is trust and estate law, and it is long-standing principle that legally enforceable trusts do not have to take the form of a written trust indenture or trust agreement. In fact, a trust does not even have to be a written down to be enforceable many times (i.e., an implied trust). Now here, when dealing with real property, things get a bit sticky because of the "statute" of frauds, a legal principle where we normally require transactions that take over a year to complete or those transferring rights in real property to be written down if a court is going to enforce it. However, there are counter-arguments to a statute of frauds defense.
Again, Craig, given that you are taking a line of dicta as a definitive holding, you can make all the parallels to trust law that you wish. But I defy you to show me a single instance in statutory or common law where a trust for real property came into being through the unilateral act of a beneficiary, without the full knowledge, acquiescence or participation of the person actually owning the property in question. And I know you have things to say on that topic, so let's continue:
Even if a state's substantive law, however, would refuse to hold an express trust over the property for the benefit of TEC (at the national level), there still are other hurdles to overcome too:

- implied trust: the local parish has acted in ways consistent with an implied trust, i.e., "Up until this dispute occurred, did the Parish seem to act as if there was an implied trust with the National church?" (This is a very fact specific claim, but can be easy to get buy-in from a judge with non-obvious support: if, for example, if there was a diocesan requirement to inform the Bishop about any building or borrowing against the property, and the Parish in question had complied, that would support the idea that it was in trust for the Dioceses (and by extrapolation, TEC); another example of a supporting fact would be if the Parish property were insured as part of the Diocese's group policy and/or through the TEC's Church Insurance Group, which because of some arcana of insurance law, would also support an argument for an implied trust).

- laches/equitable estoppel:
agreement to be bound by the Denis canon discussed in (1) above, i.e., "you had a chance to complain about the canon and quit then, but you waited too long. It's now been almost thirty years, and it's too late for you to complain about the canon now."
I agree, these are very fact-specific claims, and would require first and foremost, as I noted earlier, proof of knowledge of the Canon's existence and full appreciation of its intended legal effect. And that would be such a hurdle in most individual cases that I doubt even all the talent at Goodwin Procter could overcome it. Continuing with your theories of justification:

- constructive trust based on representation/cy pres: the Parish held itself out as an "Episcopal Church" and as a member of the Diocese and ECUSA when it conducted its activities and solicited its charitable contributions. It cannot then play "gotcha" with those donor's funds by making such a significant legal change as disaffiliating from TEC while "absconding" with the funds. Yes, a majority of the current members voted in favour of the disaffiliation, but those funds were not provided solely by the majority or even solely by the current membership. Charitable funds are always subject to special oversight/scrutiny because the state has an interest in seeing that they are used for the purposes that the donor intended. A constructive trust may be imposed on those funds if the holders of them intend to significantly divert from the express and implied representations made when the donation was solicited. Further, if a donor's intent for funds in trust or held for charitable purposes are frustrated (i.e., unrealizable or risk being diverted or forfeited because of the current political/legal environment/situation), a court can direct the funds be used for purposes as close to those as the donor's intent and expectancy as possible under the cy pres doctrine. Consequently, a court could find, for example, that the money to build the parish was given by a cradle-to-grave Episcopalian, and it seemed clear that the intent was for it to be used for an Episcopal Church. So Parish, if you wish to disaffiliate from TEC, fine and dandy, Mr. State Court judge doesn't care and doesn't want to get into the middle of it. However, you're going to have to find somewhere else to move to because this land was given to be used for a TEC member church, and you don't get to keep it, just because you've been using it for the last XX years.
Properly applied, the cy pres doctrine would require the court to decide the issue of whether The Episcopal Church in its current mission is carrying out the intent of the long-ago donors who purchased the parish property. So if a court will be disinclined to get involved in such an inquiry (and I agree with you there), I do not see cy pres being available to TEC as a sword when it would not be available to the departing parish as a shield. The hypothetical ruling you describe above is an abdication of the principles of cy pres, not an application of them.
If this were another member-based non-profit organization otherwise unconnected with religion, it would be something of a slam-dunk in most states, I would think, but the religious component muddies the waters. If this were a fraternity, for example, state courts have been very accepting of arguments along these lines (especially, even though you are an independent corporation, if you held yourself out as being affiliated with the National Fraternity and all of your actions up to this dispute with the National organization have been consistent with your membership therein). Just because you, local frat of many years, want to disaffiliate from your national organization and start a new fraternity doesn't mean you get to take the house. The expectancies that led to the purchase, funding, maintenance, et cetera of that house were all based around your national affiliation. You cede that aspect of your local corporate entity, you've now departed so far from what you've held yourself out to be to the world when asking for money that you're no longer the 'same' entity that received the donations and are not entitled to keep them or their proceeds (i.e., the frat house).
I can't comment on this, because I haven't seen the cases you are describing. Going by neutral principles, I would want to see first what the deeds say in every case. I submit that what "muddies the waters" in the case of churches is the tendency, as noted earlier, of TEC and some courts to take Justice Blackmun's gratuitous dictum as expressing constitutional First Amendment doctrine applied to real property disputes. (Remember, he's also the Justice who made up, out of whole cloth, the tripartite division of a pregnancy for purposes of abortion in Roe v. Wade. This is a Justice who loved to legislate from the bench. He was, indeed, the counterpoise to General Convention's usurpation of the judicial function---he regularly usurped the legislative function.)

3) What's different between GM and a church: GM is a for-profit organization and a church is not. Churches are granted huge operational freedoms under law that other organizations are not (hence why a significant amount of money laundring in metropolitan cities are now being conducted through storefront "churches".

Further, the legal relationship of affiliation between a dealership and a member church are different, but do share some common items. Often a dealer will have to sign a security agreement, personally guaranteeing all of the dealerships liabilities to GM as well as giving a broad security interest in both business and personal property. Further, there are very, very express limits on how a dealer can conduct his or her business while it is a GM licensee. If a dealer wants to go off the reservation, he or she can, but there will be significant financial repercussions.
Agreed. My point with the GM example could be made with any other non-profit litigant I could think of (unless, as you suggest, local fraternities receive the same short shrift as do individual church parishes): only TEC and similar "hierarchical" churches are allowed to dispense with the usual formalities of drawing up a trust for each piece of property involved.
4) a minor quibble... the trust isn't irrevocable. All you have to do is get the canon changed at the next GC. Remove that, and then no trust (at the TEC level at least) would be imposed.
Agreed again. But don't you find it even slightly unusual under the principles of trust law that once the national church imposes a unilateral trust on an individual parish's property without its consent, it has no legal way of escaping from the trust except by getting a vote to repeal the Canon passed at a subsequent General Convention? Or have I perhaps misread your argument? (Are you conceding, for example, that if a church voted to leave TEC in 1980 or 1981 that the courts would have been forced to recognize it as having successfully repudiated the trust? And if so, then would you concede that a parish that could prove definitively that it just found out about the existence and meaning of the Dennis Canon---say, for example, a parish in New York who just read the decision in the Harnish case I discussed in my previous post---could successfully repudiate the trust by voting to leave right after gaining that knowledge?)
5) Even if you removed the Dennis canon, you would still have diocesan issues in many circumstances. I'm going to pass on the "hierarchical" church question, not because it isn't a good and valuable question, but because there's a lot of existing civil law precedent holding that or discussing TEC as a hierarchical structure within the civil law definition. I think reasonable people could disagree, but in a variety of the current controversies, the point is somewhat moot because the principles of law indicated would apply at the diocesan level, since many of the diocesan canons have similar provisions or incorporate the TEC canons by reference.
Yes, I agree that in the absence of the Dennis Canon there would still be a lot of individual factual issues as between the parish and the diocese. That being said, it is remarkable how quick the dioceses are simply to jump on the Dennis bandwagon and ride with it.
6) "why afraid of leaving": I think we all know the answer to that question, however this is a policy discussion that goes beyond the legal arguments otherwise presented (unless one is going to make an argument that TEC has so changed that the member parishes/dioceses are no longer bound by its structure, but I think most courts will view that as an ecclesiastic dispute upon which there is no way to apply the "neutral principles of law" doctrine.
I heartily agree, Craig. I raised the question only because in all these discussions of TEC law and polity, it is easy to forget that TEC is supposed to be, first and foremost of all, a Christian Church, and so (supposedly) unwilling to press a short-term legal advantage against other Christians who have a sincere disagreement with it over its Christian mission. (See, for instance, the highly appropriate reminder of the words of St. Ignatius, Bishop of Antioch, as quoted in this post.) I believe that the majority rule as embodied in Virginia's division statute is the most equitable way to resolve such disputes, with a fractional division of the property in accordance with the numbers voting to stay and to leave (and if that requires a partial buyout, then so be it).

7) "offer for sale": is keeping the property for future generations, just in a different form. However, I think there's real danger (political and legal) if TEC/PB refuse to sell to a break-away parish and take a lower offer from another party. They can't cloak themselves in the mantle of fiduciary duty and then throw it away just so they can be petty. A parish leaving the supervision of TEC should get a third party to conduct a blind-bid sale on commercially reasonable terms and then make sure they have the resources to buy the building. PB couldn't do much about that: the departing vestry is meeting its fiduciary duty to any claims the TEC might have as trustees for TEC and then they still get to keep the building.

Always enjoy the AC blog, but felt like I had to try and add some more background to legal side of the discussion.

Attorney-at-Law (Va, DC, MD) & Certified Public Accounting (DC)
Craig, I sincerely thank you for adding immeasurably to the depth of the issues discussed here, and for getting me to think (and rethink) about what I have written in earlier posts. It is for readers such as you that I put in the time and effort required to keep up this blog, and I always welcome the dialogue thereby generated. May you always feel welcome to comment here, and may the Lord's blessings be upon you, always.

Wednesday, October 29, 2008

Bart Ehrman, Meet Frank Tipler

One of the sadder books I have read recently is God's Problem, by Bart D. Ehrman, the James A. Gray Distinguished Professor of Religious Studies at the University of North Carolina, Chapel Hill. The book's subtitle summarizes its thesis: "How the Bible Fails to Answer Our Most Important Question---Why We Suffer."

The book is sad both because of its thesis, and because it chronicles Prof. Ehrman's own loss of faith due to his inability to come up with a satisfactory solution to the so-called "Problem of Evil":
If there is an all-powerful and loving God in this world, why is there so much excruciating pain and unspeakable suffering? The problem of suffering has haunted me for a very long time. It was what made me begin to think about religion when I was young, and it was what led me to question my faith when I was older. Ultimately, it was the reason I lost my faith. . . .

[After summarizing his youth and early years---baptized in a Congregational church and reared as an Episcopalian, became "born again" and attended Moody Bible Institute and Wheaton, where he learned Greek and decided to become a New Testament scholar, went to Princeton Theological Seminary where he obtained both his M. Div. and Ph.D. studying under the renowned Bruce Metzger, and then served as pastor of Princeton Baptist Church before accepting a post at Chapel Hill---he continues:]

But then, for a variety of reasons that I'll mention in a minute, I started to lose my faith. I now have lost it altogether. I no longer go to church, no longer believe, no longer consider myself a Christian. The subject of this book is the reason why.

Professor Ehrman began his career by following in Bruce Metzger's steps as an expert on the Greek manuscript texts that comprise what we know of the New Testament. (One of his 20 previous books is entitled: Misquoting Jesus: The Story Behind Who Changed the Bible and Why.) And the more he studied those texts, the more his knowledge of their imperfections began to undermine his faith in the Bible as God's Holy Word. But it was not the textual inaccuracies that eventually drove him out of the Church:
. . . I did not go easily. On the contrary, I left kicking and screaming, wanting desperately to hold on to the faith I had known since childhood and had come to know intimately from my teenage years onward. But I came to a point where I could no longer believe. It's a very long story, but the short version is this: I realized that I could no longer reconcile the claims of faith with the facts of life. In particular, I could no longer explain how there can be a good and all-powerful God actively involved with this world, given the state of things. For many people who inhabit this planet, life is a cesspool of misery and suffering. I came to a point where I simply could not believe that there is a good and kindly disposed Ruler who is in charge of it.

The problem of suffering became for me the problem of faith. After many years of grappling with the problem, trying to explain it, thinking through the explanations that others have offered---some of them pat answers charming for their simplicity, others highly sophisticated and nuanced reflections of serious philosophers and theologians---after thinking about the alleged answers and wrestling with the problem, about nine or ten years ago I finally admitted defeat, came to realize that I could no longer believe in the God of my tradition, and acknowledged that I was an agnostic: I don't "know" if there is a God; but I think that if there is one, he certainly isn't the one proclaimed by the Judeo-Christian tradition, the one who is actively and powerfully involved in this world. And so I stopped going to church.
As you can see, Professor Ehrman has mistitled his book: it should not, I submit, have been called God's Problem, but instead Bart Ehrman's Problem. For the rest of the book is his account of the various solutions, or "theodicies", that have been proposed over the centuries to the Problem of Evil (or Suffering, as he seems to prefer to call it), from the Old Testament to the New, and why in the end he finds them unsatisfactory. He disclaims any intent to undermine anyone else's faith---he simply wants to show why he can no longer believe in God.

In this treatment, the explanation of suffering based on human free will receives short shrift. Although Professor Ehrman acknowledges their existence, he is not interested in the free-will theodicies of the modern philosophers:
I don't know if you've read any of the writings of the modern theodicists, but they are something to behold: precise, philosophically nuanced, deeply thought out, filled with esoteric terminology and finely reasoned explanations for why suffering does not preclude the existence of a divine being of power and love. Frankly, to most of us these writings are not just obtuse, they are disconnected from real life . . . . I tend to agree with scholars like Ken Surin---who is easily as brilliant as any of the theodicists he attacks---that many of the attempts to explain evil can, in the end, be morally repugnant.
Not only is there little in the Bible to support a free-will theodicy, but to Professor Ehrman, no such theodicy can account for the problem of natural evil---the suffering and disasters caused by earthquakes, hurricanes, tsunamis and the like. He obviously has no interest in the most celebrated modern-day free-will defense offered by Professor Alvin Plantinga of the University of Notre Dame. (Professor Plantinga does not even rate a mention in Professor Ehrman's book.) Accordingly, one should not turn to Ehrman's book for a comprehensive discussion of the Problem of Evil. He confines himself, instead, to a discussion of the Problem as it is addressed by the authors in the Old and New Testaments. And in that world to which he limits himself, he comes up empty; none of the Bible's approaches to the Problem can satisfy him, or rescue his faith.

Perhaps he simply did not look far enough about him. For Professor Ehrman takes no note of a book, published while he was writing God's Problem, which I make bold to suggest that had he read it and digested it thoroughly, might possibly have helped him recover his faith. The book is The Physics of Christianity, by Frank J. Tipler, Professor of Physics at Tulane University. It is one of the most remarkable books I have ever read, in that it is a synthesis of rigorous, mathematical physics and Christian theology. Professor Tipler not only claims that God exists, but he proves that God must exist if the laws of physics are true---and since we have no rational reason at this point to doubt their truth, then there is equally no rational reason to doubt the existence of God.

(In this respect, Professor Tipler goes Professor Plantinga one better. The latter is known for his three volumes on the subject of "warranted Christian belief", in which he argues that Christianity is rational because it is "warranted," that is, its beliefs can be defended epistemologically without necessarily being proved true. Professor Tipler, on the other hand, demonstrates mathematically that if the laws of physics are true, then God has to exist. And not only does He exist, but the other truths of traditional Christian doctrine, such as the Incarnation, Virgin Birth and Resurrection---and even long-standing stumbling blocks, such as the "problem of Evil" that proved so fatal to Bart Ehrman---have rational explanations in physical laws as well.)

Needless to say, Professor Tipler's book has been ridiculed by the physicists, and ignored by the theologians, who may have found it too daunting (while it can be read by anybody who has taken a basic college course in physics, its mathematical subtleties require a post-graduate level of understanding). The irony here is that the same physicists who have attacked the theological conclusions of the book gave the highest peer praise of all to its mathematics when Professor Tipler published his technical results in a professional journal: the article was selected as one of the twelve best to appear in the entire previous year, out of hundreds of such articles. So there is absolutely nothing wrong with Professor Tipler's mathematics; it is the theological conclusions he draws from the mathematics that have earned him scorn from fellow physicists. He responds to his critics in typical form:
The first Christians really believed that Jesus was the Son of God and that He rose from the dead. They showed they really believed by being willing to die, if necessary, for their convictions. A number of people who have read an earlier version of this book have asked me if I really believe the arguments I am presenting here.

I do. I think of myself as a Physics Fundamentalist, by which I mean that we have to accept as true the consequences of the five fundamental physical laws---quantum mechanics, the Second Law of Thermodynamics, general relativity, quantum cosmology, and the Standard Model [of particle physics]---unless and until an experiment shows these laws to have a limited range of applicability. To date all experiments are consistent with these fundamental laws. Therefore, I believe them. Therefore, I believe their consequences, which I have developed in this book. I will continue to believe in the fundamental laws of physics even if doing so results in my professional death as a physicist. It is not acceptable today for a physicist as physicist to believe in God. But I do; I believe in the Cosmological Singularity, which is God. I have a salary at Tulane some 40 percent lower than the average for a full professor at Tulane as a consequence of my belief. So be it.
Professor Tipler next quotes Cardinal Joseph Ratzinger, now Pope Beneict XVI:
It is the hallmark of the truth to be worth suffering for. In the deepest sense of the word, the evangelist must be a martyr. If he is unwilling to do so, he should not lay his hand to the plow.
He then writes:
The biblical passages at the beginning of this chapter are Jesus' command to spread the word of the truth of Christianity to all nations: the Great Commission. This book is my contribution to spreading the Word.
You may now begin, perhaps, to see why I regret that Bart Ehrman did not have the occasion to meet or read Frank Tipler before publishing his book. The Physics of Christianity is, as I say, one of the most remarkable Christian books I have ever read. In the series of posts which from time to time will follow this one, as I am able, I shall explain why.

Tuesday, October 28, 2008

None of the Above

With no thanks whatever to those in the arrogant news media, useful information is finally coming out about the two major candidates for the presidency.

Those who would vote to elect Barack Obama as president can now see his true roots as a radical, who views the law as a tool to be used for change, rather than as a limitation on conduct:

1. As early as 2000, he was calling in an interview on Public Radio to effect "redistributive change" through activist social organizations, helped by radical judges. (And the radical roots go back even further than that.)

[UPDATE 10/29/2008: More things about his early career as a radical are here, again with no thanks to the big-league journalists who are devoting all their efforts to investigating Governor Palin's new wardrobe. What is it with the liberal news media? The LA Times is refusing to release even a transcript of a video in its possession that reportedly shows Obama at a farewell party for PLO spokesman Rashid Khalidi, together with the ex-Weatherman couple from Chicago whom he denies he is close to, at which he supposedly toasted Khalidi by offering anti-Israel remarks. The Times, meanwhile, showed no scruples in releasing details of a tape it surreptitiously obtained of a private meeting in California Governor Arnold Schwarzenegger's office.] [UPDATE 10/30/2008: There is more on the LA Times's stonewalling here. And of all things---who knew that Obama is actually a blue-blood conservative? (H/T: Little Green Footballs)]

2. While on the Harvard Law Review, he authored a piece that expressed his views on the then-current state of the law with regard to fetal rights, and suggested in closing that "the state may also have a more compelling interest in ensuring that fetuses carried to term do not suffer from debilitating injuries than it does in ensuring that any particular fetus is born." (Translation for non-lawyers: "the government may well have a right to be more concerned that a fetus with Down's Syndrome be aborted than it does in seeing to it that any particular fetus is born.") (His views on abortion are more radical than any major presidential candidate to run thus far.)

3. He went back on his early promise to run a publicly-financed election campaign, because the limitations imposed were too restrictive. But the real story, completely buried by the media thus far, is how his campaign Website deliberately removed all its credit card verification protections, in order to allow phony donors to violate the limits on campaign contributions from any one individual. This has undoubtedly led to his 2-1 edge in campaign contributions over John McCain, and once again shows a determination to let the law restrict other people, but not him.

At the same time, those who would vote for John McCain have also learned a few things they might wish were not true, even though they are:

1. As one might expect of anyone born into privilege, he is not without some character flaws, chief of which is a tendency to rash decisions and reckless conduct.

2. McCain is unable to formulate a firm and steady message. Instead, he's all over the map with proposals and attacks, and the predictable result is a turnoff of voters who might otherwise be attracted to him.

3. He still waffles on his conservative message, with hints that he has not abandoned his hugely unpopular position on immigration reform, and his history of working arm-in-arm with liberals across the aisle.

While there are fanatics in both parties who would vote for their ticket no matter who was on it, the same tendency that is causing people to question their faith is also causing voters to question the choices they have before them in the current election. Why should we be bound to the candidates selected by the respective parties? Will anything really differ as a result of who is elected President?

As much as such people might want to explore voting for an alternative candidate, come Election Day, they will be marking their ballots, or pulling the lever, or touching the screen, for either the Democrat or the Republican choices. Why is this so? Why is such an acceptance of the miserable status quo a rational response to what the voter has to know by now about what is wrong with each of the candidates?

I submit that the presidential election has come down to a great big game of "Chicken." Two groups of voters, who constitute by far the majority (the second largest group will be those who elect not to vote at all), are literally egging each other on: "Your candidate stinks! I dare you to vote for that candidate of yours! Go ahead---but if you do, then I'm going to vote for ours! So there---that will teach you to vote for a [fill in your epithet of choice]. I can do it, too!"

Sounds childish? It is. Given what we all now know, the rational choice on November 4 should be: "Neither of the above. Go back to the drawing board and give us better choices." Instead, however, we all hold our collective noses and vote, consoling ourselves by saying under our breath: "Maybe it will be better next time." (As for those voters who genuinely believe that their candidate will do what he promises, well, I have a bridge I'd like to sell you.)

Just as in a true game of "Chicken", the one who hesitates last gets the dubious chance of going over the cliff. And the one who hesitates first is branded the "chicken". Neither participant thinks to ask if there are any other alternatives. Is either of them any better off afterward for their having played the game?

So ask yourself: Will we really be any better off if you cast your vote for either of the two major candidates on November 4? If you can't honestly answer that question "Yes", then here is a suggestion. Find a friend who plans to vote for the candidate you would not vote for (it won't be hard, since the electorate is so polarized, and the polls say the race will be tight.) Sit down over a beer or two and discuss the matter rationally. Then agree on either (a) a write-in candidate, such as Bill Cosby (but you had better read this first), or anyone else you manage to settle on; or (b) a pact for each of you to leave the presidential portion of the ballot blank (since your votes would otherwise cancel each other out).

Needless to say, I disagree with the blogger who wrote the post I linked in the previous paragraph. He views such an act as "throwing away your civic privilege." Well I am sorry to have to say it, but I view the Republican and Democratic parties each as having committed that offense first, in taking twenty months to produce the candidates they finally managed to offer us. Accepting their choice is not a civic duty or a "privilege"; it's a surrender to the broken status quo. And it virtually guarantees that we will have more of the same.

(Note to Republicans: if McCain wins, the Democrats will still control Congress, and he will have to "cross the aisles" again to get anything passed.)

(Note to Democrats: If Obama wins, any attempt at a radical agenda might succeed for the first 100 days or so, but then will come the inevitable backlash, and the special interests will eat each other up in the ensuing melee. Obama will not be strong (or experienced) enough to pick a course and stay with it, and Pelosi and Reid will move greedily into the power vacuum his vacillations will create. Think Washington is a jungle now? Just you wait.)

No, my suggestion can't hurt---and whatever happens on November 4, you will be able to congratulate yourself in the mirror the next morning. Think about it.

Monday, October 27, 2008

Coming to a Neighborhood Near You: TEC Properties!

In the seesaw world of litigation, The Episcopal Church has recently been able to report that some courts have adopted its view of the Dennis Canon. I have in the past commented on the Canon in question, and it is time to place it in a larger perspective. That is what I shall attempt in this post.

On its face, the Dennis Canon (I.7.4 and .5) is an attempt to declare the existence of a trust:
Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.
As a declaration of trust, it is an attempt to change the title in which "all real and personal property held by or for the benefit of any Parish, Mission, or Congregation" in The Episcopal Church is held. Instead of each "Parish, Mission or Congregation" owning its real and personal property outright, after the enactment of the Dennis Canon in 1979 all such property is magically impressed with a trust in favor of TEC and of the diocese in which the property is located. And notice the hand-waving that goes on in section 5: "no such action [by any diocese to implement the trust---such as by having the parish vestry actually execute a written trust document] shall be necessary for the existence and validity of the trust" (italics added).

"Existence and validity"---these are lawyers' words, mustered for arguments in court, and they do not add anything when used this way in a statute. Legislating that a trust "exists" and is "valid" does not make it so; only a court can declare that a trust exists and is valid. That is a judicial function, and legislatures (such as General Convention) have no business exercising a judicial function.

[UPDATE 11/01/2008: I have modified the wording in the previous paragraph to respond to criticisms here and in the comment from Craig M. below that my language did not say what I meant. But I stand by my statement that section 5 accomplishes absolutely nothing to establish the "existence and validity" of a trust by itself. Over at StandFirm, DavidH suggests that "[section 5] recognizes that if some dioceses chose to take further action, lawyers could turn around and argue that such further action was required to implement the Dennis Canon. It cuts off that argument—the canon rises or falls on its own." Lawyers could make that argument whether or not section 5 said what it says: if state courts determine that the trust requires further action by a diocese to implement it, section 5 as it currently reads has no force or effect as law in a given State to prevent such a result. It would be more legislative in function if GC had created a rule of construction for canon law rather than attempting to legislate universal effectiveness by fiat; for example, it could have made section 5 say: "For purposes of the canon law of this Church, no further steps to implement the trust imposed in section 4 shall be construed as necessary or essential to its creation." That would have been a much more appropriate exercise by GC of its proper functions. The very fact that we lawyers have such disagreements over the basics is, no doubt, why the statute-books (and the canons!) are clogged with meaningless language that the courts simply disregard.]

So in section 4 we have an attempt to create a trust, and in section 5 we have an acknowledgment that the attempt might be of dubious validity, and so there is some legislative wand-waving to say that the trust created in section 4 needs nothing further done---no documents of any kind, no attempt whatever to have the trust "embodied in some legally cognizable form", as the Supreme Court put it in Jones v. Wolf.

Yet the courts in both California (to date; we have yet to hear from the California Supreme Court) and New York apparently do not require anything more than the enactment of the Dennis Canon itself to recognize the "existence and validity" of the trust it created. How can this be?

One looks in vain for an explanation from New York's highest court, the Court of Appeals, in its recent decision in Episcopal Diocese of Rochester v. Harnish (No. 152 [Oct. 24, 2008]---the opinion may be downloaded here). The court simply states in summary fashion:
We conclude that the Dennis Canons clearly establish an express trust in favor of the Rochester Diocese and the National Church (see Jones, 443 US at 606), and that All Saints agreed to abide by this express trust either upon incorporation in 1927 or upon recognition as a parish in spiritual union with the Rochester Diocese in 1947.
Citing to Jones v. Wolf for the authority to say the trust is valid is highly disingenuous. As I noted earlier, the opinion in Jones clearly says (albeit in dicta) that the trust established by a national church must be in a legally cognizable form. The Court of Appeal itself admits there is no such legally cognizable trust document binding the parish, so it is improper for it to cite Jones in support of its finding that the Dennis Canon alone is sufficient to create such a trust.

[UPDATE 11/01/2008: For DavidH (in the comment referenced above) and for many others (including the New York Court of Appeals), the Dennis Canon is self-executing; but as I demonstrate here and here, you cannot cite the authority of Jones v. Wolf to make it so and still call yourself a lawyer who knows the difference between the holding of a case and what is unnecessary to that holding ("obiter dicta"). Relying on the dicta in Jones to say the Dennis Canon is self-executing is not only disingenuous, but in the end it is completely circular reasoning as well.]

Thus the New York Court of Appeals offers no defensible rationale for its holding, and in doing so, it even undercuts the dictum of Jones, which made it a condition of the trust's recognition that it be put into a form that the courts could recognize:
And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. [443 U.S. 595, at 606 n 4; emphasis added; footnote omitted.]
Thus for the New York Court of Appeals, the words "legally cognizable" are devoid of meaning. The beneficiary of a trust can simply wave one into existence, even though it does not actually own the property being impressed with the trust, provided it is The Episcopal Church.

And this brings me to the most troubling aspect of the decisions in both New York and California (I wrote about the latter case here): they uphold the Dennis Canon trusts solely because they are the creation of a so-called "hierarchical" church. (I say "so-called", because as Mark McCall's paper on the topic demonstrates, TEC is anything but.) Nevertheless, for the sake of argument, let me grant for a moment that TEC is "hierarchical." Why should that mean that it gets to create a trust by waving its hierarchical wand, rather than having to have trust documents drawn up and signed like everybody else?

Imagine the consternation if General Motors, say, could bootstrap itself out of its current economic difficulties by adopting a corporate bylaw which declared that as a condition of anyone being a GM dealer, all of that person's real or personal property used for GM business should be held in trust for GM. The attempt to create a trust thereby would be laughed out of any court in the land, including the New York courts. So what is different about a church---sorry, a "hierarchical" church?

Now be careful here---if you try to say that a church is different, because the relations between it and its parishes are not like the contractual relations between GM and its dealers, you are on shaky ground. A diocese joins the church, and a parish joins a diocese, by "acceding" to the latter's Constitution and canons, that is, by entering into a contractual relationship that is akin, as Mark McCall has shown, to a nation's acceding to an international treaty. The essence of the relationship is contractual, or if you want to make it more solemn-sounding, covenantal. But a covenant is still a form of contract---more formal and permanent, perhaps, but a contract nonetheless.

So if you hold, as does the New York Court of Appeals, that under "neutral principles of law", you must give effect to a national church canon purporting to establish a trust without bothering to do so in any legally cognizable form as required by state statutes governing trusts, you are perilously close to violating the Establishment Clause of the First Amendment. You are setting up a State-sponsored Church that gets treated specially in the courts just because it is the Church that it is---no other litigant, private or public, can bring a trust into existence simply by waving a wand and decreeing it so.

Not only is the church's trust given legal recognition without further ado in New York, but it is apparently irrevocable to boot---that is, the parish in question can do nothing to get out of it. It is found subject to the trust for as long as it remains in the Church, and while its congregation is free to walk out the door, the property stays in the trust.

And what does this say about TEC itself, in passing the Dennis Canon? What was its object in doing so, if I may be so bold as to ask?

If the response is that TEC wanted to prevent churches from leaving, then the next question surely is: And why should TEC be afraid of churches leaving---what was it on the point of doing in 1979 that might cause churches to want to leave? And if it was about to do some such thing (such as making women's ordination first optional, then mandatory), why would it want to keep the buildings and the property after the people that supported them had left?

We all know the answer which the current Presiding Bishop gives to that last question: "Because I have a fiduciary obligation to keep the property for future generations." But if that is the case, then why later offer the property for sale? And why sell the property not to the people who built it and paid for it, but instead to anyone but those people---including, if need be, to people who want to use it for a nightclub?

In the 15th and 16th centuries, the temporal power of the Catholic Church reached its zenith, and the result in part was the Reformation. Pope Julius II even marched at the head of an army to retake lands which he claimed for the Church from the princes who had seized it. The Church was obsessed with its temporalities, at the expense of its spirituality.

So I would say of TEC today. With its battles for buildings and physical property, it is acting no better than Pope Julius did, and its heritage is destined to be just as disgraceful. An army of lawyers is no more a suitable spiritual instrument than was an army of soldiers. The legal battles will be won and lost, while souls will only be lost, and not won.

Tuesday, October 21, 2008

California Court Rules Against Departing Church

The Fourth District Court of Appeal in California has today filed a decision in the case of New v. Kroeger, No. D051120 (Oct. 21, 2008---the link will be good only for a few months, and then the case will have to be found on the regular reported cases site). The Court reversed a judgment by the trial court in San Diego County, and held that the changes to the bylaws and articles of the Parish of St. John's in Fallbrook, which its vestry made last summer in order to disaffiliate from The Episcopal Church and the Diocese of San Diego, were unauthorized and ultra vires, given that the Canons of the Diocese incorporated themselves (as well as TEC's own Constitution and Canons) into the Parish's bylaws, and given that the Parish's articles provided that it would continue "perpetually" as a unit of The Episcopal Church.

Given these particular facts, the outcome of the decision is not particularly surprising (it is actually close on its facts to the earlier case of one of the four churches involved in Protestant Episcopal Church v. Barker [1981] 115 Cal.App.3d 599, 171 Cal.Rptr. 541). The trial court had purported to apply a strictly "neutral priniciples" analysis, in which it looked solely at the powers of the parish corporation to amend its articles and bylaws under California law. The Court of Appeal held that it had erred by not taking into account the provisions of the Diocesan canons as well. Even under a neutral principles analysis, said the Court, the Parish corporation was not free to amend its articles and bylaws so as to make them inconsistent with the paramount canons of the Diocese and of The Episcopal Church.

The opinion is a strange mixture of law and analysis, however. On the one hand, it tries to hedge itself against the effect of any decision by the California Supreme Court in The Episcopal Church Cases, which were argued earlier this month and in which a decision may be expected before the end of the year, by stating that it reaches the same result regardless of whether it follows a "neutral principles" or a "hierarchical deference" approach. On the other hand, the opinion goes out of its way to issue pronouncements on various peripheral issues, in an attempt to be encyclopedic and all-encompassing.

For example, the Court repeatedly notes that the issue before it is a narrow one: which vestry is the lawful vestry of St. John's---the ones who approved the amendments in July 2007, or the ones whom Bishop Mathes and the remnant parishioners put in place afterwards? Notwithstanding its emphasis that this is the only question that is before it---and that issues of who owns the Parish's property are involved in a separate lawsuit that was not before it---the Court of Appeal purports to decide that the Dennis Canon requires that the Parish property remain in trust for the Diocese and The Episcopal Church. And in so doing, the Court expresses not only its disagreement with an earlier appellate decision (which held that the Dennis Canon created only a "revocable" trust, which a Parish was free to change at any time), but it adopts a view of the Canon which turns it upside down (p. 29, with bold added for emphasis):
The California-Nevada case also made a fundamental error of trust law in holding a local church that held property in trust for a national church could revoke that trust, based upon the California rule that trusts are revocable unless made irrevocable by the trust instrument. (Id. at p. 767.) However, it is the national church that is the trustor of the trust it created, and only it could revoke the trust. (See § 9142, subds. c & d.) As discussed, ante, the Episcopal Church impressed a trust on local church property by enacting Canon 1.7(4) in 1979. Thus, we decline to follow the California-Nevada decision as contrary to the law governing religious corporations, as well as California trust law.
This has it exactly backwards. The "trustor" of a trust is the person who owns the property that he or she puts into the trust. The Episcopal Church did not own any individual parish's property when it enacted the Dennis Canon in 1979, so it could not have been a "trustor" in doing so. It was instead a trust beneficiary, who set up a "trust" unilaterally, without the consent of any individual trustor---other than whatever consent could be implied from the mere fact of a parish's membership in The Episcopal Church. And the California-Nevada decision correctly held under California law, in my view, that section 9142 of the California corporations code did not change basic California law that only a trustor can create a trust. To the extent such a trust can be created, it requires the implied consent of the parish to the terms of the trust---and under the express provisions of the statute, such an implied trust may be amended or revoked at any time by amending the applicable instruments (such as the parish articles and bylaws, without which there can be no trust under the Dennis Canon).

This same question, incidentally, is squarely presented in the Episcopal Church Cases now awaiting decision. At issue is the following language of section 9142 of the California Corporations Code, added in 1981:
(c) No assets of a religious corporation are or shall be deemed to be impressed with any trust, express or implied, statutory or at common law unless one of the following applies:
. . .
(2) Unless, and only to the extent that, the articles or bylaws of the corporation, or the governing instruments of a superior religious body or general church of which the corporation is a member, so expressly provide.
. . .
(d) Trusts created by paragraph (2) of subdivision (c) may be amended or dissolved by amendment from time to time to the articles, bylaws, or governing instruments creating the trusts.
The Court of Appeal for the Fifth District had construed this language in the California-Nevada case, as I noted earlier, to mean that a trust could be imposed on an individual parish's assets in favor of a governing church body only with its implied cooperation and consent, as indicated in its articles and bylaws expressing an intent to be bound by the governing body's rules. Under a different principle of California trust law, an irrevocable trust has to be in writing. Consequently, the California-Nevada court read the statute to mean that while a national canon could impose a trust (with the parish's implied consent), any such trust was revocable by the parish's amending its articles or bylaws at any time so as to repudiate that trust. In the Episcopal Church Cases, the Second District Court of Appeal took issue with that holding, and in effect held as the Fourth District does today: the national church "created" the trust when it passed the Dennis Canon, and so as the "creator", it is also the "trustor", and only the "trustor" can revoke the trust (e.g., by repealing the Dennis Canon).

This is a fallacious interpretation of the statute, because even under the reading of the Fourth and the Second District Courts of Appeal, two parties are needed to create a trust. The Dennis Canon would be devoid of meaning if there were no parishes in existence holding property to which the Canon could apply. So the parishes are every bit as much "trustors" for purposes of the statute as are the dioceses, or the national church. And as trustors, subsection (d) of the same statute (quoted above) gives them the power to "amend or dissolve" the trust at any time ("from time to time", as the statute has it). If this were not true, as the court in the California-Nevada case observed:
Although the hierarchical theory has supposedly been rejected in California, it will nevertheless live on under the label of “neutral principles of law,” if a church's own rules are viewed as trumping state statutes.
Knowledgeable people who watched the oral argument in the Episcopal Church Cases on October 9 tell me that the Justices seemed somewhat naive, or even confused, in their grasp of the canonical underpinnings involved in this issue. Thus while we have no way of knowing how the Supreme Court will read section 9142, it is entirely correct to say that whatever it decides will render today's reading of the statute by the Fourth District either incorrect, or else superfluous. That is why I find it gratuitous of the Court to have offered its opinion on the statute after conceding that the issues before it did not involve anything about who actually owns the parish property.

The Fourth District's decision also has a number of inexplicable misstatements of fact about the Episcopal Church. For example, on page 4 it flatly asserts:
The second level of the Episcopal Church consists of 111 "dioceses," which are separate and distinct ecclesiastical entities that superintend the mission and ministry of the Church within their respective geographic areas. As a condition of its creation, each diocese must accede to the constitution and canons of the Episcopal Church and is required to recognize the authority of the church's general convention.
It repeats the same error two pages later:
Since its inception in 1789, the Episcopal Church has required that every diocese accede to the constitution and canons of the Episcopal Church as a condition of being admitted into union with the church.
There are two things wrong here. First, it is simply not true that every diocese in the Church has been required to accede to the national constitution and canons as a condition of either being created, or of ongoing membership: for example, neither the Diocese of Maryland, nor the Diocese of Washington (which was created out of the former in 1895) has any kind of accession clause in their respective constitutions. And second, as Mark McCall showed in his comprehensive paper on the subject, it is not true that there has been any such requirement in the national constitution since 1789.

The court also seems to have gained a fallacious view of how a diocese comes into being. It says, at pp. 4-5:
Upon being admitted into union with the church, a diocese then convenes its own annual convention, which adopts a diocesan constitution and canons consistent with the constitution and canons of the Episcopal Church. The San Diego Diocese is a diocese of the Episcopal Church and was created in this manner.
Once again, the Court has it exactly backwards. Under Article V of the TEC Constitution, a diocese first has to be created as a legal entity under State law, which means it must have met in convention and adopted appropriate governing instruments---a constitution and canons, which contain language acceding to the TEC Constitution and canons. While it may meet again, after being admitted into TEC, to ratify its constitution and canons, it needs to have adopted them in the first instance for the versions which it submits to General Convention to be authoritative.

Thus the diocese is already a separate existing entity under state law when it applies for membership in TEC. (And those who, like D. C. Toedt, argue that before it became a separate diocese it was a mission wholly dependent on the national church for its existence overlook the step by which the diocese becomes independent. In so doing, it ceases being a legally subordinate part of TEC, and becomes a new entity of its own, capable of entering into covenant with General Convention. Indeed, it does not do so until it can stand on its own, without any help from the national church.)

So while the decision in New v. Kroeger may perhaps be correct under the particular facts recited in the opinion, the great number of factual inaccuracies and erroneous legal arguments it contains, plus its rush to pronounce on questions not properly before it, furnish little basis for confidence that it will serve as a meaningful precedent. The Court should have stayed with the narrow question it insisted it was addressing, instead of trying to be encyclopedic (one derives the latter intent from the fact that the Court certified its opinion for publication). As it is, its decision will either be eclipsed by the forthcoming decision of the Supreme Court, or else will have to be reversed because of it.

Monday, October 20, 2008

On Speaking the Truth to Ozymandias

Finally: a Democrat who fearlessly speaks truth to the media!

Would the Last Honest Reporter Please Turn On the Lights?
By Orson Scott Card

Editor's note: Orson Scott Card is a Democrat and a newspaper columnist, and in this opinion piece he takes on both while lamenting the current state of journalism.

An open letter to the local daily paper — almost every local daily paper in America:

I remember reading All the President's Men and thinking: That's journalism. You do what it takes to get the truth and you lay it before the public, because the public has a right to know.

This housing crisis didn't come out of nowhere. It was not a vague emanation of the evil Bush administration.

It was a direct result of the political decision, back in the late 1990s, to loosen the rules of lending so that home loans would be more accessible to poor people. Fannie Mae and Freddie Mac were authorized to approve risky loans.

What is a risky loan? It's a loan that the recipient is likely not to be able to repay.

The goal of this rule change was to help the poor — which especially would help members of minority groups. But how does it help these people to give them a loan that they can't repay? They get into a house, yes, but when they can't make the payments, they lose the house — along with their credit rating.

They end up worse off than before.

This was completely foreseeable and in fact many people did foresee it. One political party, in Congress and in the executive branch, tried repeatedly to tighten up the rules. The other party blocked every such attempt and tried to loosen them.

Furthermore, Freddie Mac and Fannie Mae were making political contributions to the very members of Congress who were allowing them to make irresponsible loans. (Though why quasi-federal agencies were allowed to do so baffles me. It's as if the Pentagon were allowed to contribute to the political campaigns of Congressmen who support increasing their budget.)

Isn't there a story here? Doesn't journalism require that you who produce our daily paper tell the truth about who brought us to a position where the only way to keep confidence in our economy was a $700 billion bailout? Aren't you supposed to follow the money and see which politicians were benefiting personally from the deregulation of mortgage lending?

I have no doubt that if these facts had pointed to the Republican Party or to John McCain as the guilty parties, you would be treating it as a vast scandal. "Housing-gate," no doubt. Or "Fannie-gate."
It definitely would have been "Fanniegate" (or maybe "Freddiegate"). But there was no such story written, because it was the wrong party that was behind the problem. That is, the major media (who are in the process, because of their partisanship, of becoming "the minor media") could not even conceive of running a story about the Democrats who used their positions in Congress to set us all up for a subprime mortgage collapse:

Instead, it was Senator Christopher Dodd and Congressman Barney Frank, both Democrats, who denied that there were any problems, who refused Bush administration requests to set up a regulatory agency to watch over Fannie Mae and Freddie Mac, and who were still pushing for these agencies to go even further in promoting sub-prime mortgage loans almost up to the minute they failed.

As Thomas Sowell points out in a essay entitled "Do Facts Matter?": "Alan Greenspan warned them four years ago. So did the Chairman of the Council of Economic Advisers to the President. So did Bush's Secretary of the Treasury."

These are facts. This financial crisis was completely preventable. The party that blocked any attempt to prevent it was ... the Democratic Party. The party that tried to prevent it was ... the Republican Party.

Yet when Nancy Pelosi accused the Bush administration and Republican deregulation of causing the crisis, you in the press did not hold her to account for her lie. Instead, you criticized Republicans who took offense at this lie and refused to vote for the bailout!

What? It's not the liar, but the victims of the lie who are to blame?
Right! It is the victims of the lie who are to blame, because they don't dare to fight back. Should any Republican have the temerity to call attention to the foregoing facts, (a) he/she will not be quoted; (b) he/she will be misquoted to make it appear as though he/she is apologizing for the debacle; or (c) he/she will be accused of injecting racism into the problem. And that is what we call "modern journalism." Mr. Card next goes to the heart of the matter:

Now let's follow the money ... right to the presidential candidate who is the number-two recipient of campaign contributions from Fannie Mae.

And after Freddie Raines, the CEO of Fannie Mae who made $90 million while running it into the ground, was fired for his incompetence, one presidential candidate's campaign actually consulted him for advice on housing.

If that presidential candidate had been John McCain, you would have called it a major scandal and we would be getting stories in your paper every day about how incompetent and corrupt he was.

But instead, that candidate was Barack Obama, and so you have buried this story, and when the McCain campaign dared to call Raines an "adviser" to the Obama campaign — because that campaign had sought his advice — you actually let Obama's people get away with accusing McCain of lying, merely because Raines wasn't listed as an official adviser to the Obama campaign.

You would never tolerate such weasely nit-picking from a Republican.
Right again! This is great stuff---from a Democrat, no less---but who cares, it simply needs to be said. That it is Mr. Card saying it, rather than just yours truly, will hopefully lend it the credibility it needs must have, if we are ever to regain a sense of balance in the public sphere.

Now Mr. Card comes to the gist of his message to reporters: "Clean up your act---or else turn in your badges!"
If you who produce our local daily paper actually had any principles, you would be pounding this story, because the prosperity of all Americans was put at risk by the foolish, short-sighted, politically selfish, and possibly corrupt actions of leading Democrats, including Obama.

If you who produce our local daily paper had any personal honor, you would find it unbearable to let the American people believe that somehow Republicans were to blame for this crisis.

There are precedents. Even though President Bush and his administration never said that Iraq sponsored or was linked to 9/11, you could not stand the fact that Americans had that misapprehension — so you pounded us with the fact that there was no such link. (Along the way, you created the false impression that Bush had lied to them and said that there was a connection.)

If you had any principles, then surely right now, when the American people are set to blame President Bush and John McCain for a crisis they tried to prevent, and are actually shifting to approve of Barack Obama because of a crisis he helped cause, you would be laboring at least as hard to correct that false impression.

Your job, as journalists, is to tell the truth. That's what you claim you do, when you accept people's money to buy or subscribe to your paper.

But right now, you are consenting to or actively promoting a big fat lie — that the housing crisis should somehow be blamed on Bush, McCain, and the Republicans. You have trained the American people to blame everything bad — even bad weather — on Bush, and they are responding as you have taught them to.

If you had any personal honor, each reporter and editor would be insisting on telling the truth — even if it hurts the election chances of your favorite candidate.

Because that's what honorable people do. Honest people tell the truth even when they don't like the probable consequences. That's what honesty means . That's how trust is earned.
My hat goes off to you, Orson Scott Card. Speak the truth, speak it unceasingly, and speak it so they can hear you! But I see that you are not done yet---you have some media bubbles to prick: 
Barack Obama is just another politician, and not a very wise one. He has revealed his ignorance and naivete time after time — and you have swept it under the rug, treated it as nothing.

Meanwhile, you have participated in the borking of Sarah Palin, reporting savage attacks on her for the pregnancy of her unmarried daughter — while you ignored the story of John Edwards's own adultery for many months.

So I ask you now: Do you have any standards at all? Do you even know what honesty means?

Is getting people to vote for Barack Obama so important that you will throw away everything that journalism is supposed to stand for?

You might want to remember the way the National Organization of Women threw away their integrity by supporting Bill Clinton despite his well-known pattern of sexual exploitation of powerless women. Who listens to NOW anymore? We know they stand for nothing; they have no principles.

That's where you are right now.
Look, for just one pettifogging exemplar, at Jodi Kantor, who is actually paid to muckrake by the Ozymandian New York Times. This is journalism? For which one goes four years to college and gets a degree? ("Standards?" they respond. "What are standards? They never mentioned those.") I have no use for any of these people, other than to use their paper muck---when I get back issues free from the library---to line the bottom of my parakeet's cage.

Mr. Card does not write them off, however. He gives reporters a recipe for redemption, and in doing so, furnishes the rest of us with text that we could do worse than to copy and send in a letter to each so-called "newspaper" we know that is on the Democrats' bandwagon:

It's not too late. You know that if the situation were reversed, and the truth would damage McCain and help Obama, you would be moving heaven and earth to get the true story out there.

If you want to redeem your honor, you will swallow hard and make a list of all the stories you would print if it were McCain who had been getting money from Fannie Mae, McCain whose campaign had consulted with its discredited former CEO, McCain who had voted against tightening its lending practices.

Then you will print them, even though every one of those true stories will point the finger of blame at the reckless Democratic Party, which put our nation's prosperity at risk so they could feel good about helping the poor, and lay a fair share of the blame at Obama's door.

You will also tell the truth about John McCain: that he tried, as a Senator, to do what it took to prevent this crisis. You will tell the truth about President Bush: that his administration tried more than once to get Congress to regulate lending in a responsible way.

This was a Congress-caused crisis, beginning during the Clinton administration, with Democrats leading the way into the crisis and blocking every effort to get out of it in a timely fashion.

If you at our local daily newspaper continue to let Americans believe — and vote as if — President Bush and the Republicans caused the crisis, then you are joining in that lie.

If you do not tell the truth about the Democrats — including Barack Obama — and do so with the same energy you would use if the miscreants were Republicans — then you are not journalists by any standard.

You're just the public relations machine of the Democratic Party, and it's time you were all fired and real journalists brought in, so that we can actually have a news paper in our city.
This is a magnificent letter, but it will die a lonely death if it is not adopted and given renewed life by all of us who are so offended by what is passed off as "news" in these times. The message will be even more powerful if people faithfully follow it up, when the "newspaper" refuses to print it or even acknowledge it, with a letter canceling their subscriptions. That is the ultimate way to speak the truth to the media. 

Orson Scott Card, I thank you! You have done your part---now let us each go and do ours. 

Saturday, October 18, 2008

In the Land of the Canon-Eaters

Back from a trip that did not include any regular Internet access, and I must say: I recommend such a vacation now and then to everyone who blogs---it will help you keep your sanity. Because on my return, I find the usual insanities and contradictions abroad in the name of The Episcopal Church---this time, an episode which I shall style:

A "Murder of Crows" Compounded

A few posts back, I warned that the result of TEC's piling irregularity upon irregularity would be "a murder of crows, a scold of jays, and a sneak of weasels." The unorganized group that styles itself "the Episcopal Diocese of San Joaquin" continues to make my point.

In the post just linked, I pointed out the charade behind the Remain Episcopal group's calling itself a "diocese" of TEC---with TEC's complicity, because it needed a plaintiff in a lawsuit to claim the property that went with the Diocese that left. The "diocese" that remains is not a proper Diocese of The Episcopal Church, because only General Convention can make it so, and General Convention does not meet until next year. As much as TEC and Remain Episcopal would like to wish it were not so, the Diocese that was a proper diocese of TEC amended its own Constitution and canons to put itself under the authority of the Province of the Southern Cone. Those amendments were perfectly proper and legal under California law, and they violated no language in TEC's own Constitution and Canons. TEC itself is a "voluntary association" of member dioceses, and members of voluntary associations are, as the name itself says, free to decide to leave at any time.

Since the only legal entity under California law which had been a TEC diocese chose lawfully to amend its governing documents, there is no legal entity left under California law in that region to fulfill the function of a diocese in TEC. Such an entity will have to be newly organized from scratch under California law, and when it has so organized and can be recognized as a legal entity, it can apply to GC 2009 to be admitted as a diocese (provided GC 2009 makes a few further canonical modifications, the details of which I have discussed here). Only then will there be a properly constituted Episcopal Diocese of San Joaquin once again.

Neither TEC nor the Remain Episcopal crowd, however, gives a fig for the Constitution and Canons of TEC when they constitute an obstacle to TEC's gay-rights agenda. I shall say it again: TEC, and those who collude with it, such as Bishop Jerry Lamb and the whole Remain Episcopal crowd in San Joaquin, are no longer interested in being a church in the Anglican Communion if it means they cannot promote a gay-rights agenda. So TEC is transmuting into, as one commenter at StandFirm aptly put it, "a gay religion club."

For proof of this statement, one has only to read Father Dan Martins' post on the canonical change proposed for the upcoming "non-convention" of the "non-diocese". In other words, we have a gathering of the Remain Episcopal crowd, which is not yet a legal entity that can be a diocese of TEC, announced as a regular "annual diocesan Convention", which is supposed to adopt a change in the diocesan canons so as to make it "canonical" for gay clergy to have sex with their partners, whether or not they are "married" to those partners under (current) California law (as proclaimed by a 4-3 majority of the California Supreme Court). You can read for yourself the proposed change to Canon 33.01, which currently reads as follows:
Sec. 33.01: All members of the clergy of this Diocese shall be under the obligation to model in their own lives the received teaching of the Church, and specifically that all clergy are to abstain from sexual relations outside of Holy Matrimony.
The change proposed would delete the last clause, and make the Canon read:
Sec. 33.01: All members of the clergy of this Diocese shall be under the obligation to model in their own lives the received teaching of the Church.
According to the TEC/Remain Episcopal group, the rationale for the proposed change is this:
There is considerable concern that the canon as currently drafted is in conflict with the Canons of the Episcopal Church, under "Rights of the Laity" (Canon 1:17.5) and “Rights of the Clergy” (Canon 3:1.2), which forbid discrimination on the basis of race, color, ethnic origin, national origin, marital status, sex, sexual orientation, disabilities or age.
In this so-called "justification" for the proposed change, we have a textbook example of how the liberal mind regards canons. First of all, we are told that the "canon as currently drafted is in conflict with the . . . 'Rights of the Laity' (Canon I.17.5), as well as with a corresponding canon that sets out what the justifiers say are corresponding "Rights of the Clergy" (Canon III.1.2; but see below). Canon 33.01 says nothing about the laity; it speaks only to clergy who would propose to engage in sexual relationships outside of marriage. So how do the justifiers reach the conclusion that it infringes on rights of the laity?

If we are to take the explanation at face value, the perceived conflict must arise from the fact that the diocesan Canon explicitly forbids something which the national canon explicitly (or implicitly?) guarantees as a "right". But what does the diocesan Canon forbid? Sexual relationships outside of marriage. Thus we are forced to conclude that in the eyes of the justifiers, at least, among the "rights" of the Episcopal Church laity guaranteed by Canon I.17.5 is the right to have sex with a member of the clergy to whom one is not married. For if the proposal is to delete from the Canon the language that clergy "are to abstain from sexual relations outside of Holy Matrimony" on the ground that this "potentially" infringes the rights of the laity under Canon I.17.5, what else can we conclude?

Surely, however, what will remain of the Canon after the proposed amendment is sufficient to prohibit extramarital relationships of the kind forbidden by the Seventh Commandment. So just what kind of relationships are we talking about between the laity and the clergy which are "guaranteed" to them under the provisions of Canon I.17.5 and III.1.2, respectively?

It cannot be homosexual relationships, can it? For this is a canon that is operative in California, where gay marriages are currently the law, so a prohibition on sexual relations outside of "Holy Matrimony" would not seem to create a problem in California. Ah, but two considerations now rear their ugly heads: 1) there is a proposal that goes before the California voters on November 4 that would define marriage as between "a man and a woman", and so remove the right of gay persons to claim that their sexual relations were occurring within marriage; and 2) the Canon speaks not of "marriage" as such, but of "Holy Matrimony," that is, marriage as defined by the Book of Common Prayer---which, regardless of what California law says, defines marriage as between "a man and a woman.

So now do we have our Episcopal civil rights straight? Before the proposed amendment to Canon 33.01, the right to have sexual relations extended only to those male and female clergy who were married to partners of the opposite sex, and their sexual relations could be only with those partners, and no one else. But that restriction is seen as "infringing" on the right of gay laity and gay clergy to have same-sex relations with whomever they choose, however often they choose, and whenever and wherever they choose. Such a right was, in the view of those proposing the change, implicitly guaranteed when General Convention adopted Canon I.17.5 in 1994, to read as follows:
No one shall be denied rights, status or access to an equal place in the life, worship, and governance of this Church because of race, color, ethnic origin, national origin, marital status, sex, sexual orientation, disabilities or age, except as otherwise specified by Canons.
But now, wait a minute---if this language guarantees the right to homosexual relations at any time and place with any partner of one's choice, it can only be because such relations are an intrinsic part of "the life, worship and governance" of TEC. And notice that if the Canon indeed may be so read, then it has to guarantee the same freedom to copulate to heterosexuals, who are also a group defined by their "sexual orientation." So if gays get to have sexual relations outside of Holy Matrimony because of this Canon, then so do straights. And where does that leave "Thou shalt not commit adultery"?

One would think that one would pause before accepting a reading of a national canon that explicitly "guarantees" a right to sexual relations that violate the Seventh Commandment. But not the folks behind Remain Episcopal---no, they plunge right ahead, in their zeal to guarantee to all gays the right to do what they do. And this is why I agree with Father Timothy Fountain that TEC has become "a gay religion club."

I cannot refrain from noticing as well that the appeal to Canon III.1.2 is utterly bogus. For that Canon does not grant the same "right" to clergy that Canon I.17.5 supposedly does to laity. It reads (with italics added for emphasis):
No person shall be denied access to the discernment process for any ministry, lay or ordained, in this Church because of race, color, ethnic origin, national origin, marital status, sex, sexual orientation, disabilities or age, except as otherwise provided by these Canons.
I doubt that even TEC has gone so far as to claim that gay sexual relations are an inherent part of "the discernment process for any ministry . . . in this Church." But that is what the "justification" offered for the proposed change to Canon 33.01 purports to say.

There is not a current word in the English language adequate to describe the liberals who simply choose to make a Canon of the Church mean whatever they want it to mean from one moment to the next, from one argument to the next, and from one court to the next. The meaning of a Canon, in their eyes, is not to be derived from its language, but rather from its function. Thus it is the function of the "Abandonment of Communion" canon to depose a bishop, priest or deacon without the bother of a trial; well, then, let it be read however necessary to accomplish the deposition desired in a given case.

And likewise, in this case, it is the "function" of Canon III.1.2 to extend the same rights to gay clergy as Canon I.17.5 does to gay laity: therefore let them both be read as equal and parallel, and as guaranteeing the right of sexual relations outside of Holy Matrimony (as defined by the BCP) to all as well. As for the Seventh Commandment, well, obviously a TEC Canon trumps that!

Those who feel at liberty so to read the Canons of this Church are dooming it to anarchy, or even worse, to the mindless and random insults and injuries of Lewis Carroll's Wonderland. By analogy to Homer's Lotos-eaters, whose devouring the lotos plant made them forget who and where they were, forget about house and home and simply concern themselves with getting more of the plant to eat, I shall call such persons the "Canon-eaters". By treating the canons as nothing more than objects to be consumed as necessary to maintain the current regnant heterodoxy, the Canon-eaters are breathing new life into Tennyson's lines:
In the afternoon they came unto a land
In which it seemed always afternoon.
All round the coast the languid air did swoon,
Breathing like one that hath a weary dream.
Full-faced above the valley stood the moon;
And like a downward smoke, the slender stream
Along the cliff to fall and pause and fall did seem.

. . .
A land where all things always seem'd the same!
And round about the keel with faces pale,
Dark faces pale against that rosy flame,
The mild-eyed melancholy Lotos-eaters came.

Branches they bore of that enchanted stem,
Laden with flower and fruit, whereof they gave
To each, but whoso did receive of them,
And taste, to him the gushing of the wave
Far far away did seem to mourn and rave
On alien shores; and if his fellow spake,
His voice was thin, as voices from the grave;
And deep-asleep he seem'd, yet all awake,
And music in his ears his beating heart did make.

But the Canon-eaters have not contented themselves with securing the right, as they imagine it, to extramarital sex for all their clergy. No, they have bigger fish to fry---they propose now to read Canon IV.10 to allow them to "depose" all those who elected to pick up licenses from the Southern Cone. And to do this, of course, they really have to bend the rules by eating a few more Canons.

Consider: the "standing committee" of a group that is no longer a TEC diocese has charged that 52 of the clergy who are members in good standing of the Anglican Diocese of San Joaquin have "abandoned the Communion of this Church." Never mind that these clergy were all given permission so to transfer by Bishop John-David Schofield before TEC inhibited him, and in so doing joined a Church "in communion with" TEC (at least, from TEC's point of view, since General Convention has not declared TEC "out of communion" with any other Anglican Church), and never mind that Canon IV.10 specifically defines "abandonment" as the joining of "any religious body not in communion with this Church"---we are dealing here with the "logic" of the Canon-eaters, remember?

No, what is remarkable here is a point made first by Father Dan Martins, and touched upon here in the post referenced earlier: by charging these 52 clergy with "abandonment", the pseudo-diocese of San Joaquin is making a legal admission that these same clergy were canonically part of its makeup over the past eleven months. And why is that significant? Because, when the pseudo-diocese held its "special convention" last March 29, those 52 then counted towards the determination of whether a quorum of its clergy were in fact present to transact lawful business, such as the approval of the Rt. Rev. Jerry A. Lamb as provisional bishop, and authorizing him to commence litigation against the Rt. Rev. John-David Schofield.

Canon 3.01 of the Diocese of San Joaquin provides that for purposes of a diocesan convention, a "quorum" includes one-third of all the clergy who were canonically resident in the diocese for the three months preceding the convention. There were 82 such clergy who voted on the changes proposed at the annual convention held in December 2007, including most of the 52 whose names are now on the list to be deposed. For the "special convention" held three months later on March 29, therefore, the required "quorum" of clergy to be present was on the order of at least 28 (one-third of 82). And according to official reports, there were only 21 clergy at the March 29 "convention." Which, under the Canons again, means that the business transacted on March 29 was null and void. Bishop Lamb was not validly approved as Provisional Bishop; the "standing committee" that was purportedly elected was not validly chosen, and currently has no valid authority to charge any clergy with "abandonment", and neither Bishop Lamb nor his "diocese" is a proper party plaintiff in the current lawsuit.

Now the Canon-eaters could have taken the position that as of March 29, the 52 clergy on their list were no longer canonically resident in the diocese, and in so doing, they could have saved their quorum of clergy at the "convention" (which was still unlawful, as not properly called by "the Ecclesiastical Authority" and not called on a minimum of thirty days' notice). But that would have deprived them of their ability to depose those clergy.  And if they recognized the validity of the departures to another Province, the Remain Episcopal group would have undercut their legal position that a diocese cannot leave The Episcopal Church. Thus, by bringing forward charges of abandonment, they are being consistent with their legal position, but they have handed their opponents a significant concession that they failed to have a valid quorum to do business on March 29.

Ah, but these are the Canon-eaters. So listen once again to the languid phrases of Lord Tennyson, who perfectly captures their utter indifference to the impossibility of their situation:

Hateful is the dark-blue sky,
Vaulted o'er the dark-blue sea.
Death is the end of life; ah, why
Should life all labour be?
Let us alone. Time driveth onward fast,
And in a little while our lips are dumb.
Let us alone. What is it that will last?
All things are taken from us, and become
Portions and parcels of the dreadful past.
Let us alone. What pleasure can we have
To war with evil? Is there any peace
In ever climbing up the climbing wave?
All things have rest, and ripen toward the grave
In silence; ripen, fall and cease:
Give us long rest or death, dark death, or dreamful ease.

. . .
We have had enough of action, and of motion we,
Roll'd to starboard, roll'd to larboard, when the surge was seething free,
Where the wallowing monster spouted his foam-fountains in the sea.
Let us swear an oath, and keep it with an equal mind,
In the hollow Lotos-land to live and lie reclined
On the hills like Gods together, careless of mankind. . . .