The 2009 Church Follies (III): Veni, sancte spiritus

We are now a little more than a week away from the start of the 76th General Convention of the Episcopal Church (USA). Already I can see signs of the fog of confusion descending upon the leaders who will assemble in Anaheim, and sure enough, by the time all of the deputies gather for the opening session, it will be impossible for them to see out --- to orient themselves according to any usual or customary landscape whatsoever. As go their leaders, so will go the deputies. The old proverb has it: "In the kingdom of the blind, the one-eyed man is king." The trouble is, in the kingdom of the befogged, not even a one-eyed person can help.

Those of us who will be on the outside looking in will have a double advantage: the fog will not affect us (since we won't be there), neither will it obscure our ability to tell what is going on. For the General Convention of ECUSA is the largest and most transparent monument to collective folly that has ever been devised by the mind of man. To be sure, there are larger legislative bodies that gather together from time to time --- the National People's Congress of China has about 3,000 members --- but unlike the deputies to General Convention, its members are under no illusions about what they can accomplish. In contrast, General Convention consists of the House of Bishops (potentially 300, except the retired ones don't bother to show up) and up to 880 lay and clergy members of the House of Deputies, each of whom is carefully instructed for months beforehand to believe and act as though they were beholden to no one but the Holy Spirit:

Deputies are not delegates; that is, they are not elected to represent the electing dioceses.

Deputies vote their conscience for the good of the church. They cannot be instructed to vote one way or another, for to do so would preclude godly debate and preempt the work of the Holy Spirit. . . .

(Such instruction is anathema to the purpose and functions of General Convention as originally conceived and created by those who assembled in New York in the fall of 1789 to adopt ECUSA's first Constitution. Please read this post for the full details.)

Yes, "godly debate" is what takes place these days at General Convention. That phrase means, by the way, "a debate among those who are like gods". This is the oldest sin in the Bible. As the snake told Eve: " . . . [W]hen you eat of the fruit that God has forbidden to you, you will be like God . . ." (Gen. 3:5).

And now we learn that a special form of "godly debate" --- strictly speaking, not a debate, but a "discussion" --- is to take place with regard to that infamous resolution passed on the last day of the previous General Convention, known as "B033". The discussion will take place in the House of Deputies, meeting in the formal guise of a "Committee of the Whole", on the second and third days of the Convention.

It is difficult to know what to say in the face of this proposal. On the one hand, it suggests that the deputies to General Convention are to be afflicted from the outset by the cold, dead hand of a one-time motion made three years ago, whose entire effect was over and done with the moment it passed. On the other hand, one can always hope and pray that in their discussion of the measure as a Committee of the Whole, the deputies will come to the realization that any resolution they could enact in this session would be just as meaningless and ineffective as was B033 in 2006.

There are now no less than twelve resolutions proposed for discussion at GC 2009 which deal, in one way or another, with the corpse that is Resolution B033 from GC 2006. The powers that direct such things have decreed, in their wisdom, that all such resolutions shall be assigned to the Legislative Committee on World Mission. (To view the various resolutions, go to this link, then select, under the first menu at the left ["All Committees"], Committee No. #08, "World Mission", and hit the "Refresh" button. In the list of resolutions that appears, the ones bearing on B033 and its aftermath are Resolution Nos. C007, C010, C015, C024, C033, C036, C039, C046, C054, D013, D021 and D022; also pertinent [as expanding the category of persons to whom holy orders are made expressly open] are Nos. C001 and C061.) The membership of the Legislative Committee on World Mission may be viewed from this link by selecting "World Mission" from the pull-down menu.

I find it somewhat curious that all the resolutions dealing with Resolution B033 should have been assigned to the Legislative Committee on World Mission, which is the Convention's counterpart to the permanent Standing Commission on World Mission. The latter's membership and duties are described as follows in Canon I.1.2(11) (with my italics):

[There shall be a] Standing Commission on World Mission, whose members shall include persons broadly representative of jurisdictions outside the United States of America, as well as persons having direct engagement with and experience in world mission. It shall be the duty of the Commission, as to all mission outside the United States, to review and evaluate existing policies, priorities and strategies, and to promote partnership for global mission among the various groups within the church, to plan and propose policy on overseas mission, and to make recommendations pertaining to the Executive Council and the General
Convention.

The mission and function of the Legislative Committee on World Mission, I take it, is similar to that of the Standing Commission: its main area of concern is with all mission of the Church outside the United States. And as part of that function, the Legislative Committee on World Mission is going to decide the fate of whether or not ECUSA continues to abide by the recommendations of the Windsor Report. Forget the fact that there is a Legislative Committee on the Consecration of Bishops --- that Committee, don't you see, deals exclusively with whose election as a bishop shall actually be ratified by the House of Deputies during the time that General Convention is in session, and does not deal with the issue in the abstract. And forget the fact that there are Legislative Committees on National and International Concerns (of which the Windsor Report was surely one, at least in times past), on Evangelism, on Ministry, and on the Canons. No, it makes much more sense to the leadership of the House to require the Committee that has exclusive jurisdiction over the Church's mission outside the United States to deal with this subject matter. Do you see the fog descending?

It is not sufficient, however, to benight the Legislative Committee on World Mission with the subject of how a group who meets just two weeks out of every three years can have any effect on the process of nominating and confirming bishops in the other 154 weeks of the triennium. No, the entire House of Deputies itself must be dragged into the fog from the very beginning, and consider that topic as a Committee of the Whole. As Roberts Rules describes the function of such a group (10th ed., p. 513-14 - italics in original):

In a committee of the whole, which is suited to large assemblies, the results of votes taken are not final decisions of the assembly, but have the status of recommendations . . . Also, a chairman of the committee of the whole is appointed and the regular presiding officer leaves the chair . . .

. . . The assembly votes to go into a committee of the whole (which is equivalent to voting to refer the matter to the committee), and a chairman of the committee is appointed. The committee considers the referred matter, adopts a report to be made to the assembly, then votes to "rise and report". Finally, the committee chairman presents the report and the assembly considers the committee's recommendations --- all as in the case of an ordinary committee.

Does anyone else begin to see what the fog of confusion is doing here? Listen to how the President of the House Deputies describes what she thinks the House will be doing (I have added the bold to her words, for emphasis):

It is my belief that the House of Deputies will benefit by having an opportunity to discuss B033 apart from the context of legislative procedure. Many deputies have indicated their longing to discuss B033 together as a House. The HOD Legislative Committee on World Mission (#8) has indicated their work will be aided by this conversation in the HOD prior to the committee’s open hearing on the topic.

In the fog of her confusion, the President of the House of Deputies seems to think that the entire House, as a Committee of the Whole, can serve as a subcommittee of the HOD Legislative Committee on World Mission. She has not read her Roberts Rules --- or even the Rules of the HOD itself, Rule XIII:

XIII Committee of the Whole

52. Whenever so ordered by a vote of a majority of the members present, the House may go into the Committee of the Whole for the consideration of any matter.

53. The President shall designate some member of the House to act as Chair of the Committee of the Whole, which, when in session, shall be governed by these Rules, as adapted by the Chair, subject to appeal to the Committee, and also to the following provisions: rise and report to the House shall take precedence.

a) A motion to rise and to report to the House, with or without request for leave to sit again, may be made at any time, shall take precedence over all other motions, and shall be decided without debate by majority vote. No such motion shall be renewed until after further proceedings shall have been had in the Committee of the Whole.
. . .
d) The Committee of the Whole cannot alter the text of a Resolution referred to it, but may adopt and report amendments for action by the House.

Note especially that last phrase: a committee of the whole, like any other legislative committee of the HOD, reports to the House, for action by the House, and not by some other Committee. So in that sense, the report made by the committee of the whole House before the Legislative Committee on World Mission even takes up the matter will render the entire work of the latter Committee superfluous. For consider: if the latter Committee comes out with a report that disagrees with that of the Committee of the Whole, it knows already that any such disagreement will not be ratified by the House (because the members of the Committee on World Mission [except the bishops] were themselves sitting as members of the Committee of the Whole, and if their position had carried the day, then it would have made it into the report). And if it comes out with a report that concurs with that of the Committee of the Whole, then what good has that done?

Apparently, however, the President proposes to use the Committee of the Whole as a tool to give some guidance to the Legislative Committee on World Mission on the twelve-plus resolutions it will be taking up, without actually having to debate the individual merits of any of those resolutions in the Committee of the Whole itself. But how much can be said about a dead Resolution, which but expressed the momentary mind of a legislative body that can never again come into existence? For example, look at the utter vacuousness of one of the twelve resolutions, number C007, which reads in its entirety:

Resolved, the House of _______ concurring, That this 76th General Convention affirms that standing committees and bishops with jurisdiction are not bound by any extra-canonical restraints --- including but not limited to the restraints set forth in Resolution B033 passed by the 75th General Convention-when considering consents to the ordination of any candidate to the episcopate.

This "Resolution" states nothing more than a truism. The very nature of "extra-canonical restraints" is that they are not binding on anyone --- and passing a Resolution declaring that they are not binding is a meaningless act. Indeed, the deputies to GC 2006 recognized this very fact, when they voted to reject an amendment to Resolution B033 that would have inserted into it words purporting to place a time limit on its effects. As reported in these excellent notes on that last-day session:

The first amendment has been proposed to add the words "until the General Convention 2009" in order to give a time limit to this commitment of restraint in episcopal elections.

Frank Wade, the chair of the Special Committee, said that the acts of one General Convention cannot bind another General Convention. We could add these words to every resolution the house passes. This amendment doesn't add anything and complicates much.

Now contrast that (momentary) clear-sightedness about the limited effect any resolution passed by General Convention can have with the following delusionary proposal which is Resolution C010, also before the Committee on World Mission. I give its text below, and fisk it paragraph-by-paragraph:

Resolved, the House of _______ concurring, That the 76th General Convention of The Episcopal Church recognize that the usefulness of Resolution B033 as passed by the 75th General Convention of The Episcopal Church has run its course . . .

Indeed its effect has run its course. Resolution B033, as a motion by a legislative body to make a recommendation, ran its course the moment it was passed. The act of passing it constituted the making of the recommendation it expressed. And as a recommendation only, it could not have any continuing force or effect on either bishops or standing committees.

and be it further Resolved, That the 76th General Convention of The Episcopal Church herewith repeal Resolution B033 as passed by the 75th General Convention of The Episcopal Church . . .

As a motion (and not a statute, like a canon, which has ongoing force and effect), Resolution B033 is incapable of repeal. Can we please understand that essential difference between a motion and a statute? The motion was to recommend something, and the recommendation was made. That act of recommending is now wholly in the past, and like any other past, one-time act, to speak of its "repeal" makes no sense. One might as well vote to "repeal" the Defenestration of Prague.

and be it further Resolved, That The Episcopal Church acknowledges with regret the further oppression visited on the lesbian and gay members of this church by Resolution B033 and its application; and apologizes for the potentially negative impact of said resolution on the ability to respond to the vocational call by the Holy Spirit to the episcopate of any members of this church . . .

Apologies, to be effective, need to be made by the persons committing the offense. General Convention 2006 is over and gone, and can live no more. Its sins (and they were many) are buried with it. "Leave the dead to bury the dead." If anyone must apologize, it should be any bishops and standing committees who took the recommendation to heart and acted on it. Volunteers, anyone?

and be it further Resolved, That The Episcopal Church expresses its appreciation to the lesbian and gay members of this church for their patience during this time of discernment for the church . . .

"Patience"? Did you say patience? And "time of discernment"? What time is that? --- oh, this must be referring to the present discernment going on about making it mandatory to extend holy orders without regard to "the expression of gender identity", whatever that means. (So if a man chooses to "express himself" as a woman --- i.e., be a transvestite and dress up in stockings, heels and padded bra --- does that mean we have to ordain him if he feels called? And does he thereafter lead women's retreats, or just men's? And if we cannot bar him from holy orders, can he be barred from joining the Daughters of the King --- if he is Episcopalian?)

and be it further Resolved, That in the call to see the face of our Lord and Savior Jesus Christ in each other, this church pledges its utmost effort to keep all parties "at the table" as The Episcopal Church continues to insure the full participation of all of God's children in the life of this church.

"This church pledges" is a perfect example of that anonymous, impersonal kind of feel-goodism for which we spend millions and millions of dollars to hold a General Convention every three years. Are the Deputies "this church"? They are not. Are the bishops "this church"? They are not. Have the 110 dioceses --- sorry, that's 106 dioceses now, plus the CACE --- each authorized their delegations to make "pledges" in their name? (Oh, wait --- that's right. Repeat after me: "Deputies are not delegates; that is, they are not elected to represent the electing dioceses.") So exactly how, please, do they constitute "this church (of 106 dioceses)" when they assemble for just two weeks out of every three years?

In summary: we have a proposal to convene the entire House of Deputies for two hours on two separate days as a legislative committee to discuss a now-long-dead resolution whose entire effect was over and done with as soon as it passed. (Why can't they equally well take up the Defenestration of Prague in 1618? It would accomplish exactly as much: "Should never have happened ---then we would never have had the Thirty Years War." "Oh, I don't know --- then we never would have had the Treaty of Westphalia, either." "That's true, but what about . . .?" ad infinitum [cue Monty Python and the debate about coconuts].)

That committee of the whole House, which includes the Committee on World Mission, is supposed to instruct the latter on what it should report to the whole House, if it wants the House to enact whatever it reports. That is, the House will decide in advance what one of its Committees should report to the House (because in reality, the jurisdiction of the Committee has almost nothing to do with the resolutions that have been referred to it). So, I ask you: why should the Committee go through the motions, when the Committee of the Whole can do the job just as well?

I note that over at the Covenant blog, Father Dan Martins has this observation:

The following was sent by email to all deputies and first alternates Monday evening. It follows recent calls on HoB/D for a way for the HOD to express its mind on controversial issues early in the convention without waiting for the usual legislative process to play out. I know of no certain connection between the two, but it is at least a coincidence from which one is tempted to infer behind-the-scenes negotiations.

Indeed. It would appear that as far as "godly debate" and "the work of the Holy Spirit" are concerned, there is a certain lack of trust in the process. Veni, sancte spiritus . . .

The Dog in the Manger

In praesepi faeni pleno decumbebat Canis. Venit Bos ut comedat faenum, cum Canis, confestim sese erigens, tota voce elatravit. Cui Bos: “Dii te, cum ista tua invidia, perdant (inquit): nec enim faeno ipse vesceris, nec me vesci sines.”

[In a manger full of hay a dog was lying. There entered an ox to eat the hay, when the dog at once rose up and barked as loudly as he could. Said the ox to the dog: "May the gods destroy you and that envy of yours, for you yourself do not eat the hay, and you do not let me eat it."]

THE MORAL. Envy pretends to no other Happiness than what it derives from the Misery of other People, and will rather eat nothing itself than not to starve those that would.

Church of St. James the Less, Philadelphia

(shuttered by the Diocese of Pennsylvania since 2006 -

after winning a court case to take the property from its congregation)

(From the Pennsylvania Supreme Court's decision [Madam Justice Newman's concurring opinion is also worth reading]:)

Appellants contend that application of the Dennis Canon to them violates their constitutional rights because it "takes St. James' property on the basis of a religious canon alone." However, as explained above, we hold that St. James is bound by the Dennis Canon under neutral principles of law as well as the fact that St. James had already agreed to place its property in trust for the Diocese prior to the enactment of the Dennis Canon. Accordingly, contrary to St. James' contention, we are not simply deferring to a religious canon "to override the rights of parties under civil law." Appellants' Bf., at 49.

Thus, we agree with the Commonwealth Court decision insofar as it found that St. James' property was subject to a trust interest in favor of the Diocese. As explained above, however, the trial court's order, which the Commonwealth Court affirmed outright, declared the Diocesan Bishop and Standing Committee the legal title holders and trustees of St. James' property. This declaration is plain error because, as even Appellees acknowledge, St. James' property was deeded solely to St. James and St. James' retained ownership of its property. See Exhs. P-20, P-11 - P-15. Accordingly, we reverse the Commonwealth Court's order to the extent that it affirmed the trial court's order declaring the Diocesan Bishop and Standing Committee the legal title holders and trustees of St. James' property and instead order that St. James retains legal title to its property and that St. James' members and vestry, rather than the Bishop, are required to act as the trustees of St. James' property and thereby, use the property for the benefit of the Diocese.³⁰

____________________________
³⁰ Notably, the trial court ordered the Diocesan Bishop and Standing Committee to appoint a new vestry "to continue the daily managerial duties of the parish." In re: St. James the Less, 2003 WL 22053337, at *21. Thus, this new vestry must act as the trustees of St. James' property.

The Dennis Canon provides in part (emphasis added):

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. . . .

Question 1: Who are the current trustees of the St. James church property?

The answer is to be found here. This past week, after more than three years of being closed to any form of use, there was a Vacation Bible School held each morning at St. James. The prospects for its further use, however, remain unclear. Prayers and thanks are owed to the parishioners of St. Mark's who have taken on the task of rebuilding a congregation for the church, and to Peter Loftus, who in the interim cares for the buildings and grounds, including the beautiful and historic cemetery, in which are buried some of those who founded and built the church upon a great trust and hope (see below).

Question 2: How does turning the St. James property over to another church fulfill the mandate of the Pennsylvania Supreme Court that "St. James' members and vestry, rather than the Bishop, are required to act as the trustees of St. James' property and thereby, use the property for the benefit of the Diocese"?

Answer: apparently nobody minds. The Court seems to have believed (mistakenly) that there remained a congregation from St. James which would be sufficient to elect a vestry and to continue to occupy and maintain the property --- there was not. Thus are court mandates pronounced in a vacuum, and as a result frequently bear no relation to the reality that engendered the litigation between the parties.

* * * * *

The website of the former congregation, now called the Church of St. Michael the Archangel, is here. From it you may download issues of the parish newsletter. The current one (June 2009) carries this message from the Rector:

It will be our godly suffering of whatever ills may come our way which will give credibility and power to our witness to the faith. It is this in our character which will suggest to unbelievers that we might know something they do not - and which will open them to hearing the Gospel. Everyone suffers something: our suffering must be distinctively Christian.

This means that St Michael's has a particular advantage in proclaiming the Gospel and inviting others to believe. We lost much that we held dear when we left St. James. While in many ways we have left that behind, I suspect that there are still times when the loss tears at our hearts. Love always carries vulnerability. In God's providence, this is our cross to bear. We must seek the grace to bear it as Christ bore His. We must seek the spirit of the martyrs, which includes joy.

The message is thus not that of the fable ("nec enim faeno ipse vesceris, nec me vesci sines"), but a Christian message of love and forgiveness, as the faithful pass on to greater tasks, not heeding their losses, but toiling for the glory of God.

* * * * *

The church of St. James the Less is a National Historic Landmark; you may view the official survey, with all of the historic photos and drawings, at this site. From the Philly History blog, where there is much more:

In 1846, several prominent members of the Philadelphia Episcopal Church met at the country estate of Robert Ralston in the village of Falls of Schuylkill. They were merchants, manufacturers, and other men of property, but they had not gathered to raise capital to build another factory or lay more miles of railroad track. Instead the meeting at "Mount Peace" produced the following goal: "To build a church which should be a country house of worship, as similar as possible to the best type of such a church that England could furnish, a veritable home of retirement and meditation, a quiet house of prayer." . . .

As is common with cases of spiritual and aesthetic nostalgia, Ralston and his coterie planned St. James-the-Less in reaction to what was seen as a soulless, materialistic present. . .

Rejecting the trend toward the secular ideal of classical Greek revival architecture, the Philadelphia businessmen chose a medieval English Gothic church as their model, in order to take a stand in favor of the values they worshipped:

By advocating English Gothic as the only acceptable style for Anglican churches, the Philadelphia followers of the Cambridge Camden Society wanted to take a stand against trends they felt were very unattractive in the boisterous new nation: a dangerous secularism built upon the unfettered worship of commerce, technology and the power of reason. . . .

In keeping with the Cambridge Camden Society's mission for authenticity, no architect per se was hired to design St. James-the-Less. John E. Carver, the general contractor, worked from measured drawings of St. Michael's, Long Station in Cambridgeshire, which had been built c. 1230 [footnote omitted]. The project's sponsors saw this model as the purest example of a modestly-sized but exquisitely crafted British parish church, one that was designed and built by local craftsmen out of local materials. Rather than being delicate, lofty, and grandiose, St. James-the-Less is compact, rugged, and muscular. The nave windows are small, creating a very dark, mysterious nave compared to the open, light-filled ones of neoclassical Philadelphia churches.

The chancel, where the priest performs the sacrifice of the mass, is recessed and partially screened from the congregation, a liturgical statement meant to convey the mystery of the sacrament. The masonry walls are rough-hewn and composed of stones of irregular shapes. The gable peaks are capped by stone crosses, while the doors are painted a bright red and are ornamented with wrought iron hinges and handles. Unlike large Gothic cathedrals, which used flying buttresses to augment the load bearing capacity of their walls, St. James-the-Less relies only on its thick masonry piers and walls to support its roof. . . .

This was to be a church for the working class as well as for the wealthy who built it. It was situated intentionally so as to overlook the homes of, and offer a Sunday place of refuge to, those whose weekdays were devoted to ten- to twelve-hour shifts in the mills and factories:

(click image to enlarge)

. . . Since factories and dense residential development were slowly creeping northward, the vestry of St. James-the-Less hoped that their new church would be used not just by the wealthy, but also by the working class employed in the mills and factories. The church and its grounds would be a spiritual and physical oasis for families who lived in dense row house districts with little green space and few aesthetic charms. To borrow two images from William Blake's famous poem "Jerusalem," St. James-the-Less was to be nestled in a land of "pleasant pastures green," a world away from the "dark, satanic mills" of the smoke-belching metropolis.

The Philadelphia group succeeded beyond their fondest hopes:

The impact of tiny St. James-the-Less on American architecture was immense. Parishioners were stunned at the proportions and craftsmanship of the building while visitors left the church determined to build their own country Gothic churches to the same exacting standards. Within the next few decades, English Gothic churches sprang up throughout the Philadelphia region and beyond. According to architectural historian Phoebe Stanton: "Many of the Protestant Episcopal churches that followed in the United States were informed with its [St. James-the-Less] feeling for materials and for simple but delicate articulation of ornament and scale … Whether or not one approves the appropriation of a medieval plan for nineteenth century use and the introduction of a deep chancel as a part of church plans and liturgical practice, one must be grateful for the accident which brought to America a building that demonstrated the aesthetic truths medieval buildings had to offer the nineteenth century architect and patron."

Today, St. James-the-Less - a seminal piece of American architectural heritage, a pastoral respite from the blighted neighborhoods of Hunting Park Avenue, and a National Historic Landmark - sits shuttered and dark. Still wholly intact inside and out, St. James the Less sits perched on its hill above the Schuylkill River waiting for a new life. [See more images here.]

From 1846 to 2006 is 160 years, or about five generations. I mean no slight upon the good people of St. Mark's, and wish them all the best, but they have been left on their own by "this Church and the Diocese thereof in which such Parish . . . is located" --- who by canon made themselves responsible for the property once the congregation chose to depart, and who by final court decree were ordered to ensure for its care. In just over five generations, the trust which the founders of St. James placed in the leadership of their Church, at both the diocesan and the national level, has been most tragically betrayed.

Question 3: What is the good of declaring yourself the beneficiary of a trust for which you have no use?

Answer: Only if you want to be like the dog in the manger --- my new name for the Dennis Canon:

The Dog in the Manger scores one again for TEC - Tithers for Egregious Champerty . . . no, that's not it ---

TEC, the Trustees of Everlasting Concern . . . let's try again ---

ah, yes, that's it: TEC, which stands for "Temporalities Eternally Cocooned."

("The Church that cares . . . about you and your property.")

[First of a planned series. I welcome submissions for future posts.]

O Tempora! The Law of Church Property (II)

In the first post in this new series, we reviewed the doctrine of an "implied trust" with regard to property donated and owned for religious purposes. The idea was that in cases where a donor did not expressly specify the terms and conditions upon which such property would be held, the courts would impress the property with an "implied trust" requiring that it be held so as to further the purposes of the religious organization to which it was donated --- with those purposes being determined as of the time the gift was made. When a split in the church occurred down the road, this doctrine led to courts deciding which of the two disagreeing factions remained closer to the original purposes laid down by its founders, or to its purposes as of the time the gift was made (if, by then, those differed from the organization's purposes when it was founded).

For example, if the "implied trust"doctrine were to be applied in the case of the current dispute between the Diocese of San Joaquin and the Episcopal Church, the court would have found in favor of the departing Diocese. Since it was established well before there was any ordination of women or homosexuals to holy orders in the Church, the "implied trust" on all its property would be enforced in favor of those who had remained truer to the principles that the Church followed when the Diocese was created, and the original donations to it had been made.

Making such a determination, however, would in almost every case inevitably cause the courts to run afoul of the barrier between church and State established by the First Amendment. And as we saw in the previous post, use of the "implied trust" doctrine to decide church property disputes was strongly disapproved of by the United States Supreme Court in 1872 (as a matter of "federal common law", and before it had been held directly that the First Amendment applied to the States). After the Court had ruled, in a series of cases beginning with Gitlow v. New York (1925), that the various restrictions in the First Amendment did apply to the States through the "due process" clause of the Fourteenth Amendment, it experienced no dissent in ruling (in 1969) the "implied trust" doctrine unconstitutional altogether, as unduly "entangling" the State, through its courts, in matters of religion. Today, the doctrine remains applicable only in English and commonwealth courts, where the authority of judges in cases of equity (involving trusts, or gifts made under a will) still derives in part from the royal prerogative.

The court's next foray into ecclesiastical property disputes occurred ten years after the Hull case (just linked), in Jones v. Wolf, 443 U.S. 595 (1979). I have already written extensively about this case, and so quote that earlier analysis here:

. . . in 1979, the Supreme Court decided Jones v. Wolf, a case from Georgia involving a congregation in the Presbyterian Church which split up over doctrinal differences (443 U.S. 595). The majority of the congregation voted to leave for another branch of the Church, and claimed the right to keep the church property; the minority, which wanted to stay, lost its suit for the return of what it claimed was its property. Applying what it called "neutral principles," the Georgia Supreme Court had examined the church's deed, its corporate charter, the governing documents of the Presbyterian Church, and State law concerning implied trusts, and found no facts or language to support a conclusion that the congregation's property was held in trust for the parent church. In doing so, it gave no deference to a decision by the supervising Presbytery (which exercised regional authority over the congregation) that the minority was the only true continuation of the original congregation, and that the majority no longer had authority to speak for the Presbyterian Church.

The United States Supreme Court, in a 5-4 decision, upheld Georgia's "neutral principles" approach to deciding the dispute, but remanded the case for the Georgia Supreme Court to articulate whether "majority rule" was a part of those principles. In doing so, it expressly held that Georgia was not required by the First Amendment to defer to the hierarchical ruling as to which group was the Church's true successor:

. . . We hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.

The dissent would require the States to abandon the neutral-principles method, and instead would insist as a matter of constitutional law that whenever a dispute arises over the [443 U.S. 605] ownership of church property, civil courts must defer to the "authoritative resolution of the dispute within the church itself." Post, at 614. It would require, first, that civil courts review ecclesiastical doctrine and polity to determine where the church has "placed ultimate authority over the use of the church property." Post, at 619. After answering this question, the courts would be required to "determine whether the dispute has been resolved within that structure of government and, if so, what decision has been made." Post, at 619 n. 6. They would then be required to enforce that decision. We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.

One would think that this language makes the holding of the case fairly clear. Yet here is a quotation taken from the supplemental brief for the Diocese of Virginia submitted for the May 28 hearing [in the Virginia litigation before Judge Randy Bellows]: "The Commonwealth [of Virginia] has no legitimate interest, compelling or otherwise, in the outcome of church property disputes. For the Commonwealth to assert an interest in promoting decision-making by congregational majorities---particularly within a hierarchical church, and contrary to that church's rules---itself violates the First Amendment." (Brief at p. 13, citing for a support a case that was decided before the decision in Jones v. Wolf.) Pardon, but as we have just seen, the Supreme Court in Jones v. Wolf sent the case back to Georgia for the courts to do just what the Diocese claims would violate the First Amendment---to decide a church property dispute on neutral principles, including majority rule, without having to defer to a preexisting adjudication in favor of the minority that had been made by the hierarchical church.

It is true that the Presbyterian Church in Jones, unlike TEC in this case, lacked any trust language in its governing document. Could that be a defining difference? Apparently TEC and the Diocese think it is. They derive this notion from the following oft-quoted passage from Jones v. Wolf:

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

What we have here, however, is not a holding by a majority of the Supreme Court, as in the quote in the previous paragraph, but an answer to an objection to that holding made by the dissent. And in answering that objection, Justice Blackmun stepped out of his normal role as Supreme Court Justice and engaged in the wholly unjudicial role of practicing law: he gave legal advice to those who would want to devise a way around the Court's holding. "Simply change your deeds or charter, or even put an express trust clause in your constitution, and then the courts will be required to honor your intent." Then, however, the justice part of Justice Blackmun takes over, and adds this caveat: "provided it [the trust] is embodied in some legally cognizable form." Which is to say: "I'm not going to draft the language for you. Just make sure it is in a form such that the courts can give legal effect to it."

This is a fairly crucial point, because I believe that the ultimate outcome of the Virginia lawsuits will in some way turn upon it, so let's be very clear here. Justice Blackmun and the majority in Jones v. Wolf first hold that (1) a State is free to decide church property disputes in accordance with "neutral principles" of law---meaning principles that are no different, as far as the law of property is concerned, from those used in all other cases of property disputes. Next, they hold that (2) as a part of those "neutral principles", they are free to incorporate a rule that in the absence of special provisions to the contrary, a vote by the majority controls what happens to the property---and they send the case back to Georgia to have just such a rule clearly articulated. Then, in answer to the dissent's objections that this result does not comport with the deference owed to hierarchical churches in matters of religious governance, Justice Blackmun steps out of his robes for a second to say: "Not at all---here's how you can be hierarchical and still keep your property, even under neutral principles and majority rule: just put an express trust in favor of the hierarchical church into the church deeds or charter, or into the hierarchy's constitution, and the courts will be bound to recognize what you have done---if you put it into legally cognizable form."

The words I italicized in that post have all but been swept under the table by subsequent court decisions, as we shall see. They were, however, the very thing that salvaged Justice Blackmun's legal advice --- that ensured it was just a truism in the form of free legal advice, and not an attempt to declare new law. Putting a trust "into legally cognizable form" means complying with the legal formalities required to create a trust: mainly, having an instrument in writing that is signed by the trustor, i.e., the person who owns the property being placed under a trust. Justice Blackmun was in effect saying: so long as you have the person who owns the property sign a trust document, then the national church constitution can also reflect that such a trust exists. That is the only meaning that can reasonably be ascribed to his "legal advice", because if you believe he was saying that a national church, as the beneficiary, could unilaterally declare it owned a trust interest in parish property, then you make nonsense of the words "in legally cognizable form." Before Justice Blackmun's dictum, there never was a trust in law created by a writing signed only by the proposed beneficiary of the trust. Such a trust document, in other words, would not be "legally cognizable", because in accordance with the Statute of Frauds (which is the common or statutory law adopted in all fifty States), only property owners --- and not beneficiaries --- can create, by signing an appropriate document, trusts in their property. So please keep that point in mind as we proceed --- it will turn out to be crucial in order to understand what has followed.

Now, before going any further, let me review and contrast the two approaches of the Court under Watson v. Jones (1872) and Jones v. Wolf (1979). Under the earlier ruling --- not binding on the States as a matter of federal constitutional law --- the court recommended resolving church property disputes in accordance with the following "decision tree":

1. If the property has been made subject to an express trust that is written in sufficiently definite terms, then enforce it as written.

2. If there is no sufficiently definite express trust, then:

a. If the property is held by a congregational church, with no higher governing authority above the parish itself, then the majority of its members decides where the property goes.

b. If the property is held by a parish that is part of a hierarchical church, and if the highest "judicatory" in that church to which the question has been taken has decided who gets the property, enforce the decision of that church judicatory.

The court in Watson did not say how a court was supposed to determine whether a church was "hierarchical" without getting involved in questions of religious polity and doctrine. As a matter of dictum again, Justice Miller simply opined that the Presbyterian, Methodist, and Episcopal Churches met the definition (80 U.S. 679, at 729):

Each of these large and influential bodies (to mention no others, let reference be had to the Protestant Episcopal, the Methodist Episcopal, and the Presbyterian churches), has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which as to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with.

Justice Miller was a Unitarian, and perhaps may be forgiven for thinking that the Episcopal Church had a "highest judicatory" with a "collection of [its] precedents", much like the decisions of the Supreme Court collected in numbered volumes. But in fact, the Episcopal Church (USA) has no such "highest judicatory", and hence there is no numbered set of volumes collecting any such body's precedents. ECUSA's General Convention has no adjudicatory powers under the Church's Constitution. It passes resolutions, admits dioceses, approves Church budgets and Church canons, and (over a four-year cycle) makes changes to the Book of Common Prayer and to the Constitution. Article IX of the latter document grants it authority to establish "an ultimate Court of Appeal", but one that is "solely for the review of the determination of any Court of Review on questions of Doctrine, Faith, or Worship." The determination of just who, or what body, in the polity of ECUSA would have the authority to "adjudicate" a dispute between the Church and one of its member dioceses is simply not possible by a straightforward reading of ECUSA's Constitution and Canons. Consequently, any such determination would in and of itself entangle a secular court in all kinds of questions of church law and structure, and in the interpretation of the Church's governing instruments.

It is thus fortunate that the holding in Watson v. Jones is now only of academic interest. It forms a part of that pre-Erie body of "federal common law" which the Supreme Court disavowed in Erie Railroad Co. v. Tompkins, and so is no longer binding on any court in the country. As the Supreme Court explained in footnote 4 of the Hull decision (quoting an earlier case):

"Watson v. Jones, although it contains a reference to the relations of church and state under our system of laws, was decided without depending upon prohibition of state interference with the free exercise of religion. It was decided in 1871 [sic], before judicial recognition of the coercive power of the Fourteenth Amendment to protect the limitations of the First Amendment against state action. It long antedated the 1938 decisions of Erie R. Co. v. Tompkins and Ruhlin v. New York Life Ins. Co., 304 U.S. 64 and 202, and, therefore, even though federal jurisdiction in the case depended solely on diversity, the holding was based on general law rather than Kentucky law." Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 115 -116 (1952).

However, Watson's influence has extended far beyond its reach. A number of State courts --- e.g., those in Florida, Kentucky, Michigan, Nevada, New Jersey, North Carolina, Texas and West Virginia --- still, according to their last decision on the matter, adhere to a "rule of deference" in cases they deem to involve hierarchical churches.

In contrast, the "neutral principles" approach approved in Jones v. Wolf has enjoyed widespread acceptance in the State courts, but only on the surface. All too often, a State's highest court says it is following "neutral principles", but then goes on to hold, for example, that ECUSA's Dennis Canon obviates any need under that approach for the Church to comply with the statute of frauds in establishing a trust interest in local church property without any written trust document signed by the parish in question. Frequently this result is reached by calling on a particular State statute for assistance in order to do an end run around such requirements, as in the two recent cases from New York and California, which I discussed here and here, respectively.

The lack of any clear definition of just what constitutes application of "neutral principles of law" undoubtedly stems from the fact that only two of the five justices who formed the majority in Jones v. Wolf actually endorsed the approach without reservation. The line of cases that led to the decision in Jones included the 1969 decision in Hull Presbyterian Church (1969), which unanimously held the "implied-trust-departure-from-doctrine" line of cases unconstitutional under the First Amendment, and also Serbian Eastern Orthodox Diocese of U.S. v. Milivojevich (1976). The latter case was a 7-2 decision which required a State court, in a suit brought by a defrocked bishop to have himself reinstated, to defer to the decision of the Serbian Orthodox Church upholding his deposition, even though it arguably had not followed its own procedures in doing so. Chief Justice Warren Burger concurred only in the judgment, and Justice White wrote a separate concurring opinion remarkable for its brevity, as follows:

Major predicates for the Court's opinion are that the Serbian Orthodox Church is a hierarchical church and the American-Canadian Diocese, involved here, is part of that Church. These basic issues are for the courts' ultimate decision, and the fact that church authorities may render their opinions on them does not foreclose the courts from coming to their independent judgment. I do not understand the Court's opinion to suggest otherwise and join the views expressed therein.

(Bold emphasis added.) Justice White thus spelled out his view that no church, however hierarchical, could simply by the act of proclaiming itself as such preclude secular courts from inquiring into the facts to determine whether that description was warranted. And Chief Justice Burger, by concurring only in the "judgment", sent a signal that he did not agree with everything written in the majority's opinion. Thus the real majority in the Serbian Orthodox case came down to just five justices (Brennan, Stewart, Marshall, Blackmun [who had replaced Douglas], and Powell).

Justices Rehnquist and Stevens dissented from the opinion on this ground:

Unless civil courts are to be wholly divested of authority to resolve conflicting claims to real property owned by a hierarchical church, and such claims are to be resolved by brute force, civil courts must of necessity make some factual inquiry even under the rules the Court purports to apply in this case. We are told that "a civil court must accept the ecclesiastical decisions of church tribunals as it finds them," ante, at 713. But even this rule requires that proof be made as to what these decisions are, and if proofs on that issue conflict the civil court will inevitably have to choose one over the other. In so choosing, if the choice is to be a rational one, reasons must be adduced as to why one proffered decision is to prevail over another. Such reasons will [426 U.S. 696, 727] obviously be based on the canon law by which the disputants have agreed to bind themselves, but they must also represent a preference for one view of that law over another.

In an eerie foreshadowing of what the Episcopal Church's House of Bishops did in attempting to depose Bishops Cox and Schofield, and again in its "deposition" of Bishop Robert Duncan, Justice Rehnquist wrote:

If civil courts, consistently with the First Amendment, may do that much, the question arises why they may not do what the Illinois courts did here regarding the defrockment of Bishop Dionisije, and conclude, on the basis of testimony from experts on the canon law at issue, that the decision of the religious tribunal involved was rendered in violation of its own stated rules of procedure. Suppose the Holy Assembly in this case had a membership of 100; its rules provided that a bishop could be defrocked by a majority vote of any session at which a quorum was present, and also provided that a quorum was not to be less than 40. Would a decision of the Holy Assembly attended by 30 members, 16 of whom voted to defrock Bishop Dionisije, be binding on civil courts in a dispute such as this? The hypothetical example is a clearer case than the one involved here, but the principle is the same. If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness.

Given these decisions that predated Jones v. Wolf, it is accordingly quite interesting to trace the alignment of the various justices who took part in them. In Hull, as mentioned, the Court seemingly came together in holding unanimously that the entanglement entailed by the implied-trust doctrine made it unconstitutional. This unanimity, as subsequent cases showed, was in reality made up of three different factions. There were three justices (Brennan, Douglas, and Marshall) in Hull Church who believed that the First Amendment forbade any determinations of religious doctrine or polity to be made by the courts, under any circumstances. Four justices, on the other hand (Burger, Stewart, White and Powell), agreed with the decision in Hull Church because it deferred to the church judicatory’s hierarchical determinations in the case, and so in that way avoided State entanglement in such matters. Finally, two Justices (Rehnquist and Stevens) agreed that courts must be neutral in reaching decisions about church property, but at the same time, they could not be blind to fraud, collusion or arbitrariness on the part of the hierarchy. These three different viewpoints have waxed and waned in their adherents as the Justices on the Court have changed with time.

For simplicity’s sake in what follows, I will refer to them as the “hands-off”, the “deferential”, and the “neutral principles” factions. Thus, Justices Brennan, Douglas (later replaced by Blackmun) and Marshall were of the school that demanded the courts keep their "hands off" with regard to any religious matters; Justices Burger, Stewart, White and Powell believed that courts should defer to any religious hierarchy that was involved, but could consider religious questions in the case of congregational and other non-hierarchical churches; while Justices Stevens and Rehnquist were of the view that everything --- even matters supposedly decided by a church hierarchy --- could be resolved through the application of "neutral principles of law". Under their view, no deference to any hierarchy was required by a "neutral principles" approach, and the courts could look behind the decisions of a church hierarchy to ensure that it was not being arbitrary, or oppressive, or, indeed, fraudulent. (Note that of the original factions, only Justice Stevens remains on the Court today.)

Now let us apply this factional analysis to the line of decisions following the Hull Presbyterian Church case. In the Serbian Orthodox case, for example, which (as explained above) was on the surface a 7-2 decision, the hands-off and deferential factions made up the majority, and the neutral principles faction (Stevens and Rehnquist) dissented. And in deciding Jones v. Wolf by a 5-4 majority, the dissenters (Powell, Burger, Stewart and White) comprised the deferential faction, while the hands-off and the neutral principles factions made up the majority. (The hands-off faction presumably was content with the outcome in Jones because the decision remanded the case to the Georgia Supreme Court so it could articulate a neutral basis under State law for identifying which group would keep the property --- a basis which did not "impair free-exercise rights or entangle the civil courts in matters of religious controversy." [443 U.S. at 608.] In other words, even under so-called "neutral principles", a "hands-off" approach to matters of religious doctrine was constitutionally required.)

The result is that no single faction has been able to dominate the Supreme Court's decision-making process in religious property disputes, ever since Jones v. Wolf. In subsequent posts on this topic, I shall trace the various factions as they evolved over the years with the subsequent changes in the Court's membership. An understanding of how these various factions have shifted over time plays an essential role in trying to evaluate the probability of the success before today's Court of the petition for review (certiorari) recently filed by St. James parish in Newport Beach, which asks the United States Supreme Court to hold that the California Supreme Court read a State statute in such a manner as to favor the "establishment" of a Church, and to inhibit the free exercise of their religion by local parishes, in violation of the First Amendment. First, however, we will be concerned to trace how the "neutral principles of law" doctrine has been adopted and transformed in recent years in the various State courts.

Friday TED Talk: Al Seckel on our Crossed Visual Circuits

Al Seckel, a cognitive neuroscientist at Cal Tech, gives a talk in which he illustrates how easy it is to fool the visual circuitry in our brains when you know how. I reproduce below the video of his talk at the February 2004 TED Conference, but this is one talk you really need to watch in the high-resolution (MP4) version (QuickTime or Windows Media Player required) --- you will pick up a lot more of the visual detail:

You can read more about Al Seckel and his work here, and you can download versions of his talk from this page.

Now here is another Seckel-type illusion to fool your eyes:

You will be unable to tell it no matter how long you stare at the image, but the fact is (as you can see by looking closely at the center of the image, where the "blue" and the "green" spirals merge) that the two spirals --- one appearing to be "green" and the other "blue" --- are exactly the same color. Our brain, however, sees the orange stripes running through the former, but not the latter (which has magenta stripes), and is wired to register the one combination as "green on orange", while the other is "blue on magenta".

More on the above illusion may be found at this link.; the reference site (slow-loading) is here.

St. James Petitions for Review in Supreme Court

The parish of St. James in Newport Beach has filed its petition for certiorari (review) with the United States Supreme Court. The petition may be downloaded as an Adobe Acrobat (.pdf) file from this site.

I am in the process of doing a series of posts on the various Church property law cases, which will help to understand the background of, and the basis for, this petition. (The first such post is here; the second will be along this weekend.) For now, here is a brief summary, starting first with the "Questions Presented" --- the matters which St. James would like the Supreme Court to agree to review and decide, as a matter of federal Constitutional law:

1. Whether the California Supreme Court violated the First Amendment’s Establishment and Free Exercise clauses by interpreting a state statute to confer a special power on certain religious denominations to create trusts for their own benefit in the real property of affiliated local church corporations, solely by declaring that they have unilaterally enacted a post-hoc internal rule, when no other person or entity has such a power under state law?

2. Whether this Court’s reference in Jones v. Wolf, 443 U.S. 595 (1979), to denominational canons and constitutions as potential sources of neutral principles of property law can be read, consistently with the First Amendment, as trumping other secular laws governing property rights?

These two questions present squarely the issue I identified as constituting the major problem with the California Supreme Court's decision in The Episcopal Church Cases this past January, as I discussed in this post. (You may also want to read this post for some additional background; it has links to still more.)

The introductory statement to the Petition explains what it is all about:

Since 1950, Petitioner The Rector, Wardens and Vestrymen of St. James Parish in Newport Beach, California (“St. James Church”), a separate nonprofit religious corporation under California law, has held clear title to church property in Newport Beach, California. Following a series of doctrinal disputes with the Episcopal Church and its diocese in Los Angeles, California (Respondents here, collectively “Episcopal Church”), the branch of the worldwide Anglican Communion of churches with which St. James Church was originally affiliated, St. James Church voted to affiliate with a different branch of the Anglican Communion. The Los Angeles Diocese sued to take St. James Church’s property. Although the deeds are unambiguously held in the name of the St. James Church corporate entity, the Episcopal Church claim the property by virtue of a disputed 1979 amendment to the Canons of the Episcopal Church (alleged by the Episcopal Church to have been adopted thirty years after St. James Church first took clear title to the property), by which the broader Church association unilaterally claimed for itself a trust interest in the property of St. James Church.

While ostensibly applying the neutral principles of law approach commended by this Court in Jones v. Wolf, 443 U.S. 595 (1979), the California Supreme Court interpreted Section 9142(c) of the California Corporations Code to permit churches claiming to be hierarchical to unilaterally create a trust interest for their own benefit in property in which legal title is held by an affiliated local church corporation, thus giving dispositive and retroactive weight to the disputed 1979 Canon while disregarding other neutral principles including deeds and property statutes.

The issues thus presented by this petition involve whether the California Court’s application of Jones and its interpretation of Section 9142(c) impermissibly prefer self-proclaimed hierarchical denominations to other churches and intrude into areas of religious doctrine and polity in violation of the First Amendment’s Establishment and Free Exercise clauses. The important constitutional issues involved include (1) whether civil courts may, consistent with the First Amendment, decide that a religion is purely hierarchical where the matter is theologically disputed; and (2) whether such an ecclesiastical determination can be permitted to allow the purported hierarchical denomination to adopt, unilaterally, post-hoc rules creating a trust interest for itself, trumping undisputed legal title held by the local religious corporation.

The heart of the brief is in the section entitled "Reasons for Granting the Writ" (beginning on page 12). This is where counsel explains why the Supreme Court should select this one petition for review out of the thousands and thousands of such petitions presented annually to it. (I am not up on its recent statistics, but traditionally the number of such petitions which the Court has time to accept for consideration and a full opinion is less than 100 per year. So counsel in this section has to give it his best shot.) Here is the brief's summary of the first reason for agreeing to review the California Supreme Court's decision:

I. The California Supreme Court Has, By “Legislative Fiat,” Empowered Self-Proclaimed Hierarchical Churches to Unilaterally Create Trust Interests For Themselves in the Property of Affiliated Local Church Corporations, Impermissibly Preferring Hierarchical Religion and Infringing on the Free Exercise Rights of Local Congregations.

In a sense, the argument here is the converse of the argument which the Episcopal Church (USA) is making to the Virginia Supreme Court as a reason to accept review of Judge Bellows' decisions and rulings in the Episcopal Church cases in that State. There, ECUSA contends that the Virginia Division Statute unconstitutionally infringes on its hierarchical polity, by giving local congregations the ability to withdraw and keep their own local property. In California, on the other hand, St. James is saying that the Supreme Court unnecessarily read the California statute (Corporations Code section 9142[c]) so as to allow hierarchical churches --- and no one else --- the exclusive privilege of bypassing the Statute of Frauds in creating a trust on local church property.

The second ground for review (beginning on page 16 of the brief) is in two parts, and is best discussed after I have put up my post on the meaning and proper interpretation of the decision in the Jones v. Wolf case, on which this argument turns. Essentially, St. James argues that the California Supreme Court used the Church's Dennis Canon in such a way as to undermine the "neutral principles" approach, and also has purported to decide disputed matters of religious doctrine (e.g., is the Episcopal Church [USA] "hierarchical"?) in a way that contravenes the First Amendment. (Remember --- the California Supreme Court did not so much decide ECUSA was hierarchical after a trial, as proclaim it "hierarchical" based solely on the allegations it and the Diocese of Los Angeles made in their complaint. There still is going to be a trial in Orange County Superior Court, and the degree to which St. James will be able to contest this point by offering actual evidence, instead of deciding the matter purely on one-sided allegations, is one of the battlegrounds in the case that will be the most hotly contested.)

Stay tuned for a lot more on all these issues as I work my way through the intricacies of the current state of church property law. By reading this blog, you will be able to stay as well-informed as anybody. In the meantime, let me refer you to the excellent series of brief video interviews with Dean Eastman (one of the authors of the petition for certiorari) which you can watch at the Steadfast in Faith site. (Also note that one of the co-authors on the petition, along with the trial counsel Payne & Fears, is Edwin Meese III, the 75th Attorney General of the United States.)

Much more to follow!

Plus ça change . . . (revisited)

[N.B.: In view of the inaugural convocation of the Anglican Church in North America, I am re-posting this piece which I put up on April 5 of last year.]


I am working on a post that will trace the history and the abuses of the "Abandonment of Communion" canons of The Episcopal Church. In the course of my research, I came across some documents that seem to suggest that we have all been through this before. The occasion was the formation, by a group of "low church" dissenters led by the assistant Bishop of Kentucky, the Rt. Rev. George D. Cummins, of the Reformed Episcopal Church in December 1873. A former minister in the Diocese of Pennsylvania, the Rev. Marshall B. Smith, wrote a strong letter to the diocesan, the Rt. Rev. William Bacon Stevens, on June 6, 1874, in response to the address the latter had given at the Diocesan Convention that year. In the letter, the Rev. Smith (who had assisted Bishop Cummins in the formation of the REC) quotes the following part of Bishop Stevens' address:

"Since we last met in Convention an event has occurred which is unprecedented in the history of our Church. One of its Bishops has abandoned its communion and transferred, as he declared, the work and office which, by consecration, he received from this Church, to another sphere.

That other sphere has proved to be the establishing of a 'Reformed Episcopal Church.' This unfaithfulness to his threefold vows of ordination, this needless rending of the Church of Christ, he has crowned by an act unparalleled in the annals of Christ's Church the consecrating, by his single self, of a lawfully deposed clergyman to the work and office of a Bishop. Vigorous efforts have been made by this disaffected sect to asperse the purity of our Church and sow seeds of discontent amidst our clergy and laity. To this end, falsehoods, misrepresentations, perversions, have been resorted to through the press and the pulpit, in reference to our Prayer-book, our polity and our legislation."

Bishop Stevens was referring to the sequence of events by which Bishop Cummins first addressed a letter in November 1873 to his diocesan resigning from his post in the Diocese of Kentucky, followed by his formation of the Reformed Episcopal Church on December 6, 1873, and followed by his consecration (with no other Bishops participating) of the Rev. Charles Edward Cheney, previously deposed by his Bishop for his actions in helping to organize the REC, to be a bishop in the Reformed Episcopal Church on December 14, 1873 in Christ Church, Chicago. (Scroll down to the bottom of the page for the record of the consecration.)

Reverend Smith describes some of the turmoil and rancor that surrounded the Episcopalian reaction to Cummins' actions:

You speak of "this disaffected sect" as having used the pulpit and the press to asperse the purity of your Church, and sow seeds of discontent, etc. The fact is just the reverse of this. When the Presiding Bishop of your Church, by a monstrous reach of authority, based on no Canon of your Church, but on some supposed apostolic prerogative, declared any acts of Bishop Cummins "null and void," and even sent to him, at Chicago, a telegram designed to effect that object, which I saw at the time; when several Bishops hurriedly gathered in the city of New York, to do something, they hardly knew what, but, I fear, nothing very "apostolic;" when the press of the Protestant Episcopal Church, High, Low, and Broad, with a single exception, assailed our movement, week after week, with hard epithets, and cruel reproaches; we made no reply.

Thus the response of the Presiding Bishop (who was also the Bishop of Kentucky, Bishop Cummins' diocesan) to the consecration by Bishop Cummins of a deposed clergyman was to declare it "null and void". Incidentally, the report of Rev. Smith's letter inserts this addendum concerning the legality of the Rev. Cheney's deposition:

[Since the above was written the decision of the Superior Court of Chicago, Illinois, has been rendered, to the effect that the Rev. C. E. Cheney, D.D., was not legally deposed according to the canons and regulations under which he was tried. All the canonical proceedings were pronounced null and void.]

We see that the Illinois courts in 1874 did not shy away from ruling on the validity of the Church's canonical actions, much as the Pennsylvania courts are doing today in the case of the Rev. (now Rt. Rev.) David L. Moyer, deposed by Bishop Bennison.

The character of the Rt. Rev. Cheney can be seen in this sermon, preached at Christ Church in Chicago just before his consecration. He describes the trials he has been through with his congregation:

To-night in this congregation there are many who will listen to the subject on which I have been announced to speak with a very different spirit from that in which Paul was greeted by the congregation of Jews at Rome. For fourteen years they have upheld every effort of their pastor to bring about a reform in the Protestant Episcopal Church. To such, this is the dawn for which they have watched with eagerness through a long night of persecution, and trial and bitter disappointment. On the other hand, there may be some here that only know in regard to this subject just what St. Paul's hearers knew in reference to the Gospel. They only know that the religious press has thundered forth its anathemas against us. They only know that the pulpit of the Episcopal Church has resounded with denunciations of our course. They only know that the proclamation of Protestant Bishops has been given to the world, declaring that null and void and utterly without effect, is everything that may be done by this band of "schismatics," who have allied themselves together, as they claim, "against the Church."

Rev. Cheney then describes the gulf that separates the two factions in words that sound familiar to us today:

The theory of the High Church party, down at its very foundation, is that, while the Bible is indeed the inspired word of God, it is to be received by the people, only with the authoritative interpretation of the Church. In other words, if I believe that the Bible teaches me a certain truth, and yet my minister tells me that that truth is not in the Bible, I must accept the teaching of my pastor, because he is the representative of the Church, rather than the plain unvarnished statements of the Scripture that God inspired.

The theory of the Low Church party, on the other hand, has ever been that which Chillingworth announced long years ago--that the sole rule of faith and practice is the Bible and the Bible alone; that Scripture is to be interpreted to the Christian conscience, not by Churches, not by Councils, not by creeds, not by confessions of faith, not by doctrines of any human authority whatever, but by the Spirit of God sought in prayer.

Between these two systems there can be no harmony. To reconcile them is as impossible as to make truth and error a perfect unit.

Rev. Cheney speaks about the different intellectual views that sustain the positions of the high-church versus the low-church factions:

The Episcopal Church is filled with the restlessness of the age; it sympathizes with that spirit of freedom, of intellectual development that is characteristic of the time; the throbs of mental activity have started its sluggish pulses, and both parties have felt the effect. . . . The thinker who starts with putting an infallible interpretation of the Church upon the Scripture, will unquestionably go on to a more highly organized ecclesiastical system, because the Church greedily demands it. He must have a sacrificing priesthood, because that will give the Church more spiritual power. He must have the confessional, because that rivets that power upon the people. He must have the body and the blood of Christ present in the bread and in the wine, because that dogma elevates the doctrine of the Church above the word of God. He must teach that every baptized infant is regenerate in the hour that the drops of water are sprinkled upon its brow, because by that act, it is placed within the Church; and he wants to have it unmistakably taught that the act of regeneration is something of ecclesiastical rather than of divine accomplishment.

On the other hand, the thinker who starts with the Bible, and the Bible alone, as the foundation of all divine truth, inevitably will push on to his conclusions also; and he will discover that the divine authority of Bishops is the figment of human fancy. He will discover that rites and ceremonies may be multiplied to a point where they will become intolerable bondage. He will come on to feel that the teaching of the Gospel is above sacraments and symbols and rites and ceremonies. He will come to that point, above all things else, where he will feel that, as high above all ecclesiastical authority as heaven is higher than the earth, is the enlightened Christian conscience. And when men follow out these diverging paths because they think and investigate, and push their premises to their ultimate conclusions, they must burst the shell that holds them together.

He continues in the same vein for a while, and then turns to the expected deposition of Bishop Cummins:

The highest churchman in the land cannot deny the validity of the Episcopate of the Reformed Episcopal Church. Bishop Cummins was ordained by Bishop Hopkins, Bishop Hopkins by Bishop White, and Bishop White by the Archbishop of Canterbury; and if that fact is worth anything, it certainly ought to stand for what it is worth.

The argument is sometimes made (I have heard it repeatedly of late) that, by and by, Bishop Cummins will be deposed. Did you know that every Bishop in the Protestant Episcopal Church to-day derives his consecration through a line descended from Bishops of the English Church, every man of whom was not only either suspended or deposed at the time of the Reformation, but was actually excommunicated from the Church of God? If deposition can take away authority to-day, it could have taken it away then. More than that, no power in the Protestant Episcopal Church can depose a Bishop under less than six months. The law holds in check the thunderbolts of Episcopal wrath, and before that time, other Bishops will have been ordained to perpetuate this apostolic succession, if it is worth perpetuity.

It was undoubtedly as a result of actions such as the consecrating of the Rt. Rev. Cheney that the Episcopal Church revised its canons in 1874 to provide that a Bishop charged with "abandonment of communion" would, with the consent of the three senior bishops in the Church, be "suspended" (i.e., inhibited) from the ability to perform any episcopal acts until the he either renounced or disproved the alleged acts of abandonment, or the House of Bishops voted to consent to his deposition. In the event, the House of Bishops did not confirm the deposition of Bishop Cummins until well after the six-month period for him to recant had expired.

Next, Rev. Cheney takes up the criticisms of the validity of his coming consecration through the hands of just a single bishop:

Still again, it is argued that Bishop Cummins stands alone, that no other Bishop is shoulder to shoulder with him in this great conflict. "Does it not require," we are told, "the concurrence of three Bishops to ordain another Bishop?" It is exceedingly unfortunate for the High Church party--they have my sincerest sympathy--that they could not foresee the course of events. They have already answered that question. The Old Catholic movement in Germany has appealed very strongly to the High Church sympathy in England and America. They felt that here were Catholics, and yet Catholics who did not obey the Pope, and therefore, because they themselves were rampant Catholics in everything but obedience to the Pope, they felt that they were one with those who, while clinging to the character and the name of "Catholics," have thrown off the papal authority in Europe. Consequently, when Bishop Reinkens, the only Bishop of the old Catholic movement in Germany, (they have but one,) was consecrated, it was by one Bishop only, "with the laying on of hands of the presbytery." Bishop Coxe, of the Diocese of Western New York--a man well known throughout this land for his eloquence, for his poetic genius, and for an adherence to what he believes to be the truth, that does him honor alike as a man and as a Bishop, and yet who is one of the most decided of High Churchmen in regard to this doctrine of the apostolic succession, wrote a letter to Bishop Reinkens, the German Bishop, recognizing the fact that his consecration by a single Bishop was perfectly valid, and carried with it the full claim to the historic episcopate. And then, as if that were not enough, the "Church Journal" has published to the world the fact that Bishop Reinkens is undoubtedly in the apostolic succession, because, though the canons of the Church of England may require three; one Bishop only is necessary to transmit whatever authority may be in this episcopal prerogative.

Rev. Cheney closes his sermon with words of advice for the two different factions:

Now, I have two pieces of counsel to two different classes of people in this assembly. I have no doubt that there are High Churchmen here to-night. I certainly have no words but those of welcome for them within these walls. Always are we glad to see them here; always do we desire that they too may enjoy the blessings of evangelical religion, and the preaching of a simple gospel. But while I have no words of bitterness, nothing in angry controversy to say to such as they, I have just one piece of counsel and advice. It is very old. More than eighteen hundred years ago, "Gamaliel, a doctor of the law," stood up in the Sanhedrim in the city of Jerusalem, and to men who were raging against a new sect that was "everywhere spoken against," he gave this advice: and I repeat it to every High Churchman who may be here to-night; I would repeat it to every Bishop of the Protestant Episcopal Church if my voice could reach him; I repeat it to those papers, secular or ecclesiastical, that revile or sneer at this movement toward reform:

"And now I say unto you, refrain from these men, and let them alone; for if this counsel and this work be of man, it will come to naught; but if it be of God, ye cannot overthrow it; lest haply ye be found even to fight against God."

I have also a word of advice to this people--to those who meet together here to-night around their pastor. This is our day of rejoicing and of gladness. You have seen your Rector dishonored and disgraced before the world. You have seen his name cast out as a vile thing. You have heard with pompous dignity the sentence pronounced upon him that consigned him to the uncovenanted mercies outside of the Church of God--and you only twined your arms--God bless you for it!--you only twined your arms around him the more tenderly, you only stood by him with a stronger determination. To-day God is bringing your reward. To-day you have an Episcopal Church; you have the liturgy of your fathers; you have the truth as it is in Jesus, in connection with all that was worth retaining of what is known as the Protestant Episcopal Church. Let us prayerfully and solemnly and decidedly act together.

As I mentioned earlier, this sermon was followed by his consecration by Bishop Cummins a week later. The Presiding Bishop did move to depose Bishop Cummins, and at first declared him deposed without calling a meeting of the House of Bishops, but after obtaining written consents of a full majority of the House by mail. Because doubts remained about the validity of such a procedure under the canons, a revised canon on abandonment was adopted at the General Convention in 1874 in which the Presiding Bishop was directed to convene the House for a vote on deposition. Immediately after the adoption of this canon, the House convened and voted to depose Bishop Cummins. You can read a more detailed account of the beginnings of the Reformed Episcopal Church here.

It appears, if a new Anglican province in America is going to form out of the churches in the Anglican Network, that history might well be repeating itself.

Plus ça change, plus c'est la même chose . . .