Tuesday, September 29, 2009

Illogic Flourishes in a Vacuum

Definition: vacuum, n. theoretically, an entirely (in practice, an almost completely) empty space.

The recent decision of the South Carolina Supreme Court in All Saints Parish Church Waccamaw et al. v. The Protestant Episcopal Church in the Diocese of South Carolina, et al. (No. 29724, September 18, 2009) has managed to put to the test the workings of the Episcoleft blog network, in a manner in which I never thought we would see so openly demonstrated.

To start with, I have been covering the background issues involved in this lawsuit extensively since beginning this blog in March 2008. (I have put up posts touching upon the issues involved here, here, here, here, and here.) Not one of those posts has ever been cited at what the Episcoleft is proud to call its "Eyes Left" blog roll.

OK, so that is just a personal gripe -- the Episcoleft do not like citing to you, Anglican Curmudgeon, because you are so "right-wing" and "biased." Besides, as many of them are fond of saying, my views may be dismissed as "irrelevant" because "I am never right" (i.e., the courts always decide contrary to what I think they should decide).

Enter the Supreme Court of South Carolina -- which decided unanimously (5 - 0) a case in the way I had argued it should be decided. (I do not claim any influence on the decision itself; just that I argued the state courts should follow common sense, and not allow a trust to be created by the Dennis Canon when the owner of the property had not signed a paper consenting to the trust.) Does the Episcoleft regard this decision as a correct decision under the law?

Not on your life. They regard it as an aberration, an anomaly, which is a blot upon the otherwise beautiful façade of the Church as they would have it established. In their vacuum of a blogworld, they cite themselves in endless circles to show how the decision is unworthy of serious consideration.

Since I believe in the concept of proof, let the unadulterated voices of the Episcoleft convict themselves in this affair. As far as I can determine, here is the unaltered history of the reporting of the decision by the Supreme Court of South Carolina in the blog world, with special attention paid to those blogs listed in "Eyes Left", as well as here:

1. The decision was filed on Friday, September 18, 2009. Thereafter, it was made available that same day on the official Website of the South Carolina Supreme Court. News of the decision appears to have been spread first by the Anglican Mission in America (AMiA), whose parish in Waccamaw was the beneficiary of the decision.

2. The first blog which I can find responded to AMiA's announcement was Titus 1:9, whose elves saw the importance of the news at once, and did not wait for Canon Kendall Harmon to write a post about it: they simply put up a link to the decision itself at 1:49 EDT on September 18. Next came the StandFirm Website, at about 2:30 pm EDT. Thereafter (according to Google) the next site to post the news was the American Anglican Council, which was followed closely by the Rev. Andy Morgan, of Prince George Episcopal Church in Georgetown, South Carolina, at 4:21 pm, and by Baby Blue, who put up her post at 5:13 EDT (linking to the AAC Website), and then a little later by the Rev. Steve Wood (who follows Baby Blue's blog), of St. Andrew's Church in Mt. Pleasant, South Carolina, at Treading Grain, and by David Virtue at his Website.

3. Meanwhile, in response to the StandFirm post, yours truly began cranking out an annotated version of the decision at 3:47 pm EDT, and had it posted some two and a half hours later. No other blogs, as far as I can tell, carried any news of the decision on September 18.

4. September 18 was a Friday, and so the blogworld posted other stories about the decision on Saturday, September 19, beginning in the UK with Stephen Sizer's post (at 7:33 am GMT). Back in the United States, there were posts by K. Crary, at Internet Scofflaw, at noon (linking to StandFirm); by Fr. John Slavin, at 4:53 (linking to David Virtue), and by a local paper in Georgetown, South Carolina.

5. It was not until Monday, September 21, that the Episcoleft began to show any awareness of the decision and its significance -- and even then, it was not through any post by a blog author. Around 10:00 am, a commenter at Episcopal Cafe noted the fact of the decision in adding a comment to a post on another topic, and a second commenter on the same post claimed in response (at about 2:30 pm, without any explanation) that the decision would be overturned.

6. Meanwhile, bloggers and news media from other points of view continued to write about the decision. The Beaufort Tribune in South Carolina published on September 21 a very astute and well-informed article, which observed in part:
According to Wikipedia, the Dennis Canon is named after the attorney and later Suffragan Bishop of New York Walter Dennis, who drafted it. It was passed by the Episcopal Church’s 66th General Convention in 1979.

The Dennis Canon purports to codify an assumed trust relationship TEC claims regarding property held by parishes. The parishes, through their vestries, are supposedly trustees of the property for the benefit of their local dioceses and the national Episcopal Church.
If the Dennis Canon is assumed to be valid, a vestry could be accused in civil court of breaching its fiduciary trust if it transfers property to another ecclesiastical jurisdiction, such as happened in the Waccamaw situation.

Adoption of the Dennis Canon followed the turbulent 1960s and 1970s, when parishes left the Episcopal Church and attempted to retain the parish property for reasons including the admission of women to Holy Orders, the adoption of the 1979 Book of Common Prayer, and the belief that some bishops held heretical views.

In recent years, TEC has been embroiled in a variety of theological disputes concerning its doctrine, discipline, and worship. Because of these disputes, parishes and entire dioceses have left the Episcopal Church bringing with them the property and assets owned by their congregations and dioceses. State and federal appellate courts are deeply divided over the legitimacy and applicability of the Dennis Canon and the existence of a trust relationship on behalf of the Episcopal Church.

The SC Supreme Court’s decision is a strike against the Dennis Canon and against TEC’s claim that it can prevent an Episcopal congregation from severing its ties with the national church and the diocese.
7. A little later, the first extended commentary by any Episcopal loyalist blogger was put up by Eric Von Salzen at the Anglican Centrist Blog. Mr. Von Salzen is a South Carolina attorney specializing in real property law; his commentary was very knowledgeable, and written so that a non-lawyer could understand and appreciate the significance of the decision, even though he felt the Dennis Canon should have been enforced. He was followed by Dean Nicholas Knisely of Trinity Cathedral in Phoenix, Arizona, who in a post at Episcopal Cafe attempted to put the decision into perspective by citing a comment made by Texas lawyer Dale Rye at the Titus 1:9 blog:

The problem with this is that the decision simply assumes (without considering the matter) that South Carolina can switch from being a ‘deference’ state to a ‘neutral principles’ state without thereby interfering with anybody’s established property rights.
As the opinion notes, until 13 years ago both the Episcopal Dioceses in South Carolina and all the parishes in the state were subject to the ‘deference’ principle, under which the congregations and members of a hierarchical church were assumed to have acceded to the authority of the denomination by virtue of having joined that denomination rather than one organized on a congregational basis. All these entities conducted their business with one another under the assumption that their respective legal interests (and the ecclesiological assumptions underlaying them) would not be abrogated by state action. Not only was South Carolina a ‘deference’ state until 1996, but its courts had insisted that this was the only constitutionally possible regime… which it arguably was until the US Supreme Court allowed the ‘neutral principles’ alternative in 1979. So, in 1987 when The Diocese of South Carolina expressly adopted the Dennis Canon, there was clearly established local law that gave General Convention and the Diocese the authority to make rules that were binding on local congregations.

[...]At the time the Diocese of South Carolina adopted the Dennis Canon in 1987, it had every expectation that it was binding on all the diocese’s congregations because that was actually the law at the time. It was not an effort to impose a trust from outside on a non-consenting independent corporation (as this decision holds), because South Carolina Episcopal parishes were not independent corporations in 1987. This judgment, in effect, holds that the adoption of “neutral principles” in 1996 divested the Diocese and National Church of their existing property interests without any compensation.
This comment (which is much longer than the quote just given) received a number of pointed responses at the Titus 1:9 blog from people who agreed with the Court's decision -- none of whom, however, was acknowledged in Dean Knisely's post. (See, for example, this comment, and this, and this.) They were simply invisible to the eyes left, because those eyes rarely, if ever, look right.

8. The commentary kept coming in, but not (except as noted) from the left. Another well-informed attorney and author in Kentucky, David Trimble, who left the Episcopal Church in disagreement over where it was going, put up his favorable reaction to the decision on his blog, Still on Patrol. He was followed by a short comment on the decision from a law professor, Howard M. Friedman, at his Religion Clause blog -- which drew on the Episcopal Cafe post and also mentioned the comment by Dale Rye. Over at a blog which specializes in news of the Presbyterian Church, Doug Clements described the consequences of the decision by using quotes from All Saints Waccamaw's rector and chancellor; another and more extended commentary on the decision from the Presbyterian point of view appeared at The Layman Online. In South Africa, Fr. David McGregor put up a post on the decision which cited to David Virtue's account.

9. Finally, five days after the decision, the reporter for Episcopal News Service, Mary Frances Schjonberg, published a straightforward account of the decision which quoted a reaction to it from the Presiding Bishop:
A statement issued by the Presiding Bishop's office said that the opinion was "particularly disappointing in the light of the long struggle in which the Episcopal Church and the Diocese of South Carolina have worked cooperatively to preserve the property of this parish for the mission of the church and the diocese."

"Time has not permitted a careful analysis of the opinion or of the options that confront the church and the diocese at this point," the statement said.
And that was pretty much it -- until yesterday. (I have not cited to blog posts which simply quote one of the posts already cited above.) All of the blog posts mentioned were unexceptional in their treatment of the decision, which (after all) was very straightforward, and clearly written, as I explained in this post. Apparently, however, some on the left could not leave things at that -- as with Dale Rye, it simply rankled that the Dennis Canon could not be allowed to override State law regarding how a trust interest in real property could be created. And so we come to the latest salvo from the left, by way of a lay person from Pittsburgh who experienced "considerable dismay" at the decision, and who as a result enlisted a local attorney to provide him with an analysis of it. This analysis is such a remarkable statement, coming from an attorney on the left who does not represent (as far as I know) the official views of the Episcopal Church (USA), that I am singling it out for comment here.

The Pittsburgh attorney (who, it must be remembered, is aligned with the group from Calvary Church and other parishes who opposed Bishop Duncan's move to separate the Diocese from ECUSA) begins with an attempt to put the decision into some perspective:
The Supreme Court decision is a rare loss for The Episcopal Church in property litigation, but one has to look behind the immediate outcome to get a better sense of what this decision is and is not. The two issues of interest here are the Court’s treatment of the Dennis Canon and the cavalier way it approved the disassociation with The Episcopal Church.
A "rare loss" it may be, but it is a significant one, because it deals a forthright blow to the heart of the Dennis Canon. The Church tried to circumvent the traditional law of trusts by enacting its Canon, and while it has gotten away with its maneuver in States like New York, California, Colorado, New Jersey and others, this was the first decision in some time that reasserted the control of a State over its own laws, and a refusal to defer to the machinations of ECUSA in trying maintain a death grip on parish property without accepting any of the responsibility or liability for its cost or upkeep. The Pittsburgh lawyer goes on to give his view of why the decision is not such a death knell for the Dennis Canon:
The negation of the Dennis Canon is not as shocking as it seems. While all Episcopal Church parishes are assumed to have a trust relationship with their dioceses (and The Episcopal Church), the diocesan trust here was rendered null and void in 1903, when the Diocese of South Carolina signed a quitclaim deed giving any property interest the diocese had to the parish. (At issue was a question about the validity of the parish’s incorporation.) It is sometimes overlooked that the Dennis Canon did not and could not create a trust where none had existed before. The underlying assumption of the Dennis Canon is that there is always a trust relationship between a parish and the diocese dating from the establishment of the parish. To date, state courts have agreed with this. In this case, the diocese had given up its trust rights, so that there was nothing for the Dennis Canon to attach to.
I have put in bold the most remarkable thing about this opinion: "It is sometimes overlooked that the Dennis Canon did not and could not create a trust where none had existed before." The attorney attempts to explain this assertion with the next sentence: "The underlying assumption of the Dennis Canon is that there is always a trust relationship between a parish and the diocese dating from the establishment of the parish."

I very much beg to differ. As I have explained at length in numerous posts about the Dennis Canon (all linked at this page), and most recently in this satirical post about the "free advice" that gave rise to Bishop Walter Dennis' last-minute submission to General Convention 1979, the "underlying assumption" behind the Dennis Canon was nothing of the kind. The idea of a "trust relationship between the parish and the diocese" (where does that leave the Episcopal Church [USA]'s claim of a trust, by the way?) which dates "from the establishment of the parish" has particularly no application to All Saints Waccamaw, whose establishment (in 1767) predated that of both the Diocese of South Carolina (in 1778) and of the Protestant Episcopal Church (in 1789).

Even if the dates had been different, however, the doctrine of an implied trust with regard to parish property, in favor of the general denomination, came into disfavor with the Supreme Court's 1871 decision in Watson v. Jones, and was ruled entirely unconstitutional by the Court in 1969 (in the Hull Church decision, as I explained in this post). The Hull decision preceded the enactment of the Dennis Canon by ten years. Bishop Dennis had been a lawyer before entering the Church, and it was his reading of the Court's 1979 majority opinion in Jones v. Wolf that gave him the idea for the Canon which bears his name. Thus neither he, nor General Convention 1979, could possibly have been thinking of codifying the implied trust theory by enacting the Canon -- the theory had been completely discredited and discarded by then.

Moreover, the argument that the 1903 quitclaim deed from the diocese to All Saints Waccamaw somehow served to make the trust declared by the Canon in 1979 ineffective again has no application to ECUSA itself. There is a doctrine called "estoppel by deed" which is recognized in South Carolina; essentially the idea is that if you give someone an outright deed to property which you own, you cannot later come into court and claim that you made a mistake, and meant to reserve a trust interest. But this was a quitclaim deed, which (as the link in the quote above explains) carries no guarantee or assertion that the person signing it owns any interest in the property at all. Its only effect is to transfer whatever interest the grantor may have in the property, without determining the extent of that interest. And having thus transferred in 1903 any interest it might have had, the diocese was "estopped" (judicially prevented) from claiming that it had a trust interest in 1979 -- unless something had happened between 1903 and 1979 to allow it to claim such a trust interest. And the argument the Diocese had made to the Court was that something did happen in that interval: the Church enacted the Dennis Canon.

Strictly speaking, therefore, one is going in circles when one states that "there was no interest created in 1979 by the Dennis Canon because any interest had been conveyed away in 1903." The whole point of the Dennis Canon was to manufacture such an interest out of whole cloth, regardless of whatever had gone before. To admit that any interest thus declared by the Dennis Canon was even capable of having been conveyed away by an earlier deed is to give away the whole ball game. (To take just one example, the Diocese of Los Angeles could not have prevailed in their case against St. James parish in Newport Beach, because there, too, the Diocese had given the parish a deed to the property in order to get it started, after it had incorporated in 1949.)

Moreover, since the Episcopal Church (USA) has never owned any property on its own (as a common-law association, it has always been incapable of holding title to any real property in its name), there never could have been any earlier grant from it to a parish which would have estopped it from declaring a trust interest by means of the Dennis Canon. And yet, the South Carolina Supreme Court held that the Dennis Canon was ineffective to create any trust for it in the parish's property, as well.

So the holding of the South Carolina Supreme Court with respect to the invalidity of the Dennis Canon cannot be spun as the Episcoleft would like to spin it. It does not depend in any way upon the giving of the 1903 quitclaim deed -- that was just an extra fact for the Court to put into its quiver. No, the central holding of the South Carolina Supreme Court is that the Dennis Canon -- alone and all by itself -- was insufficient in law to create a trust in favor of either the Church or the Diocese. And the reason it was insufficient is that it attempted to create a trust without complying with South Carolina law -- which requires, as nearly all States do, that the owner of the property being placed in trust sign a writing to that effect.

The analysis by the Pittsburgh attorney of the decision by the South Carolina Supreme Court does not, however, stop there. It goes on to find "troublesome" the second part of the Court's decision, recognizing that All Saints was free to amend its corporate articles under South Carolina law so as to remove its accession to the Diocese and the national church. (All Saints was free to do that because there was no limitation placed on its power of amendment, and because there was no requirement that the Diocese, or the Church, ratify or approve any amendment once made.) And why should this holding -- again, a straightforward application of State corporation law -- be so troublesome? Oh, it's that darn diocesan "accession clause" again:
This conclusion of the Court is troublesome because nowhere in the opinion was the accession clause of the diocesan constitution (see Article I) mentioned or explanation given as to why it did not apply to this case. If an accession clause had been found present and effective, the actions of the parish, even if they had been unanimous, would have been beyond their authority and therefore of no effect.
I am afraid that this argument, however, is as nonsensical as the earlier one. In the first place, the much-vaunted accession clause does not specify which is the version of the national Constitution or Canons to which it applies; it just says that the diocese "accedes to and adopts" them, without more. I will leave to others more knowledgeable in South Carolina to tell us when this current version of Article I of the South Carolina diocesan Constitution was adopted, but I will wager that it was long before 1979 -- it may even go back to language first adopted in 1789, or shortly thereafter. The national Canons have changed hundreds of times since then. Does that mean that each generation of South Carolinians must be held to have foreseen, and agreed in advance to be bound by, whatever little strategem bishops like Walter Dennis might conceive as advantageous hundreds of years later -- particularly when it tries to take away the property they have held and developed by themselves for so long? (Watch out -- do not go back to an implied trust argument again.)

In the second place, the accession clause on its face applies only to the Diocese, and not to All Saints Waccamaw. The two entities are by no means the same. So there is a huge step missing in the analysis: by virtue of what language does the adoption of language by a diocesan convention in the eighteenth or nineteenth century even conceivably bind a parish created in 1767, and reincorporated again in 1778?

And finally, this argument represents the same pleading for a special meaning to be given to the word "accede" that ECUSA, and only ECUSA in the entire English-speaking world, contends it means. Any standard dictionary will tell you that the word means "to agree to be bound by, to consent." It does not mean, and you will find no dictionary defining it to mean, "to agree forever to be bound by; to consent irrevocably." To be irrevocable, a voluntary consent must be stated to be so, by using the word "irrevocable" or its equivalent. Otherwise, all consents in law are revocable at any time. As I have pointed out elsewhere, nations have acceded to the Articles of the United Nations, and they have also withdrawn their accession. To repeat: even if the parish articles contained language acceding to the diocesan and national constitution and canons, there was no restriction on the power of All Saints to amend those articles.

Our Pittsbugh attorney is not quite done with his criticism of the decision. He has one more bone to pick:
Moreover . . . the Diocese of South Carolina’s Canon XXX, Section 1 (see canons here), would seem to prohibit what the Supreme Court of South Carolina has allowed:
It shall not be lawful for any Vestry, Trustees or other body authorized by laws of any State or Territory to hold property for any Diocese, Parish or Congregation, to encumber or alienate any dedicated and consecrated Church or Chapel . . . without the previous consent of the Bishop, acting with the advice and consent of the Standing Committee of the Diocese.
It would seem that the court is saying that the only document that need be considered is the parish charter; the diocesan constitution and canons count for naught. The failure of the South Carolina Supreme Court to address this issue is both surprising and distressing.
Can you spot the flaw here? It's simple: there was no "encumbering or alienation" of the property! All Saints Waccamaw owned the property outright before it amended its articles, and it continued to own the property outright afterwards. This is another example of reading into the text something that just is not there.

All this is standard stuff for any regular reader of this blog, and I apologize for taking you through it yet one more time. But what we have here, as I chronicled at the outset, is a studied refusal by those on the left to engage with, or even read, blogs such as this one which try to present rational arguments based just on the law and the actual words in a document, instead of making up the law to fit a preconceived and desired outcome, and ignoring the facts (and text) to get there. All the blogs on the left -- from "Thinking Anglicans" to "Episcopal Cafe"-- simply cite to each other, and never to anyone outside of their tight little circle. (Here is just the latest example from the first-mentioned blog.) As a result, they are caught by surprise when a rational decision proceeds to apply settled law to the actual words of a governing document -- and they have no clue as to what could be wrong.

We are seeing the same blindness in Fort Worth, as I analyzed in this earlier post. The Episcopal Church (USA) may be able to pull the wool over the eyes of some courts -- even of the California Supreme Court -- but any argument so based in illogic and contradiction cannot fool all of the courts, all of the time. The meaning of "accede" has not changed for over five hundred years, and if some courts misread it for a while, they will eventually set themselves straight. The point is that the life of the law is logic. No legal system can long survive without remaining true to that principle. Illogic is like a cancer, a fatal disease for the stability that the law is supposed to represent and embody. If a law (or a legal term) means one thing one day, and another the next, no one can build any rational plans for going forward with their affairs.

ECUSA is currently advancing nothing but illogic in the courts. It is a strategy doomed to fail in the long run, because it undermines the very courts themselves. The law moves slowly and ponderously, and by no means gets it right all the time.

And when it can no longer get it right at all, people no longer recognize its authority. "When in the course of human events . . . ."


  1. "The point is that the life of the law is logic."

    Yeah. Uh, uh. Sure, I buy that.

    Two aphorisms for ya:

    (1) Bad arguments covered with good rhetoric are amazingly persuasive.

    (2) Creating bad stigma beats good dogma.

    Generally speaking, in fights between emotion and logic, emotion prevails fairly often. The law is not immune to that, although one would certainly hope so.

  2. Mr. Haley,

    Thank you for your studying so that we may reap the benefits of your breaking it down for us. We, as Anglicans, are indebted to you and your wisdom.

    Thank you and may God continually bless you.

  3. TU&D, what can I say? I have no wish to disagree with you, because I know where your inclinations lie.

    But if your aphorisms are true, then bad stigma would win every time. And in my universe, I choose to express my philosophy as follows: "One cannot beat a stigma with a dogma, but only a dogma with a stigma."

    Accordingly, I do not think that creating bad stigma beats "good dogma", because I view the latter term as an oxymoron. There is, in my universe, by definition no "good dogma", although there may be plenty of "good dogs" in any universe either of us might conceive.

    With regard to bad arguments, however, I maintain (because otherwise I could not remain determined to defend the fortress) that we will witness the refutation of the implicit premise in your words when the courts in Ft. Worth and San Joaquin issue their rulings. Emotion will carry ECUSA only so far, but logic must win in the end.