Thursday, February 11, 2010

What in the World Is Going on in South Carolina?

Things are about to get a whole lot more interesting in South Carolina. Bishop Mark Lawrence and the Standing Committee of the Diocese have announced a postponement of the annual convention which had been scheduled for next month. The reason for the postponement is a series of letters written by South Carolina attorney (and former diocesan chancellor!) Thomas S. Tisdale, Jr. to the current chancellor of the Diocese, Wade H. Logan, III.

The letters constitute truly one of the most remarkable sets of communication from one church attorney to another that this church attorney has ever seen. The first is dated January 25, and starts out as though it were just one colleague writing to another -- not on behalf of any particular client, mind you:
Dear Wade:

I am writing regarding recent and ongoing actions by some congregations in our diocese that threaten to "withdraw" their parishes from the Diocese and The Episcopal Church. Specifically, I am writing to confirm my understanding from our recent conversations that Bishop Lawrence has determined that, with respect to such threats and efforts to remove parishes from the Diocese and the Church, he intends to take no legal action to protect parish property.

You said, I recall, that you knew of no action planned by the Bishop to discipline clergy who support such threats and efforts, nor does he intend to take any other steps to dissuade these efforts. You also said, I recall, that you knew of no plans by the Bishop to support the loyal Episcopalians in these congregations who are opposed to such efforts.

These requests for confirmation are all based upon our recent conversation, so please let me know if I have mischaracterized anything that we talked about. If I have misunderstood or misstated yours or the Bishop's position, I trust that you will let me know, and if there are any plans to take any action in these matters of which you were unaware when we talked, I ask that you now tell me what they are.

With best wishes and thanks, I am


Thomas S. Tisdale
Now one might wonder what in the world motivated the writing of this letter. Mr. Tisdale addresses the current diocesan chancellor by his first name, so one assumes that there is a pre-existing relationship between the two, perhaps begun before Mr. Logan succeeded to the position of chancellor.

Despite the friendly surface tone, however, the letter crosses an unwritten boundary where true friends are involved. For it is couched in the form of a classic method by which attorneys document the statements of counsel for an adverse party. In such a letter, the attorney writes: "Dear John, This is to confirm that in our telephone conversation earlier today, you stated that . . .". The burden is thereby placed upon the opposing attorney to respond if there is anything incorrect about the restatement of what he allegedly said. Otherwise, the letter will stand as a memorandum of their conversation.

But Mr. Tisdale does not state that he is writing on behalf of any client, let alone one who is adverse, who could have any interest in such a confirmation. And yet, there is that sentence (emphasis added):
. . . I am writing to confirm my understanding from our recent conversations that Bishop Lawrence has determined that, with respect to such threats and efforts to remove parishes from the Diocese and the Church, he intends to take no legal action to protect parish property.
Why should Mr. Tisdale wish to "confirm his understanding" of such intent on the part of Bishop Lawrence? After all, he no longer has the diocese or its bishop for a client. And then he asks for more (emphasis again added):
. . . [I]f there are any plans to take any action in these matters of which you were unaware when we talked, I ask that you now tell me what they are.
At that point (if not earlier), Mr. Logan must have seen -- as I can well imagine -- red flags popping up all over the place. His "friend" was not only seeking to confirm their earlier "friendly" conversation in writing, but he was demanding to be told a matter protected by the attorney-client privilege: any "plans" which the Bishop may have confided in him (as chancellor) to "take action" in regard to parishes which had made "threats . . . to remove [themselves] from the Diocese and the Church".

I have no doubt that the conversation was perfectly collegial when it took place: the current chancellor thought he was sharing with his friend, the previous chancellor, some of the trials and tribulations of advising a diocese in the midst of all the legal tangles being created by the ongoing litigation strategy of the Episcopal Church (USA) -- particularly in the aftermath of the recent decision from the South Carolina Supreme Court. (As I explained in this post, that Court recently said that the Church's much-vaunted Dennis Canon was not self-executing in South Carolina. No trust in church or parish property would be recognized in South Carolina courts without a trust document signed by the owner of the property in question.) But the thoroughly improper requests and stated purpose set forth in this letter served notice that the actual purpose of the conversation had, in retrospect, been hostile.

If any doubt could possibly have remained on this score, it was set to rest by a second letter in Chancellor Logan's inbox on January 26 (the dates they were received are stamped on the linked copies) from Mr. Tisdale, which had been written the same day before as the first letter (January 25). In contrast to that first letter, it now asserted outright (with emphasis added):
Dear Wade:

As South Carolina counsel for The Episcopal Church, I am writing to respectfully request that you send me a list of all persons who have been ordained to the diaconate or priesthood in the Episcopal Diocese of South Carolina since October 24, 2009; all persons who have been ordained by Bishop Lawrence during that period; and a copy of the declaration of conformity signed by each of the ordinands.

As we agreed when we met a couple of weeks ago, this is a letter seeking information that you suggested I send you, and to which that you said you would respond accordingly. . . .
When combined with the earlier letter of that same day, this has to be one of the most remarkable exchanges of communications, as I say, ever to have taken place between two church attorneys. For now there is an open disclosure that Mr. Tisdale is claiming to act on behalf of a specific client: "The Episcopal Church". Why did he not state this in his earlier letter?

Because the request in his earlier letter was incompatible with his making it on behalf of any such client as the Episcopal Church (USA). It was conceivable, if at all, as a request (albeit quite improper and irregular) from a former attorney for a client to let him in on something to which he was not entitled by that former representation, namely, to share in the current confidences of that same client.

Even in that role, as I say, the request would have been highly improper and irregular. But to request such a confidential disclosure on behalf of a new client -- whose interests may well be adverse to that of his former client -- was beyond the pale. Mr. Thomas Tisdale, Jr. had no business inquiring as to the current bishop's "plans" on anything.

But Mr. Tisdale was not done with his friendly inquiries. The very next day, January 26, he signed two further letters requesting the records of the diocesan convention and the text of any amendments to parish bylaws of which Mr. Logan was aware. Then, over the next two days he sent four more letters to Chancellor Logan, asking this time for documents and records with respect to individual parishes which, he claimed, had threatened to leave. (Links to all of the letters may be found here.)

When Mr. Logan did respond to these letters, it was quite correctly a protest about how Mr. Tisdale had concealed his true purpose at the outset (emphasis added):
. . . My best recollection is that I asked you at the first [meeting] if you represented anyone, and you told me that you did not, but that a lot of people were asking you questions, and that you were trying to get information to answer those questions . . . .

I have no intention of engaging in an endless letter writing campaign so that one side can claim that if the other failed to respond to a statement, then that statement would be deemed admitted. I am both saddened and disappointed that you have chosen to make use of our friendly conversations in this way. I must respectfully decline to answer your allegations specifically, because I see no useful purpose in arguing what either the Bishop or I did or did not say.
Then Mr. Logan discloses the real moving force behind Mr. Tisdale's inquiries:
I had had an earlier telephone conference with David [Booth] Beers in which he asked me if the Diocese would provide some information about three churches.
So the other penny drops. The Presiding Bishop's own chancellor has apparently taken a signal interest in the "threats" allegedly made by certain parishes in the Diocese of South Carolina to leave the diocese, and in the "plans" by Bishop Lawrence to respond to those threats. He called the diocesan chancellor and requested information about the churches in question. When the chancellor was not forthcoming, Mr. Beers hired, on behalf of "The Episcopal Church" (an entity he does not represent, or have as a client), a South Carolina attorney (and former diocesan chancellor) to get the information for him.

I repeat: David Booth Beers is not the chancellor for that certain voluntary association of dioceses which formed in 1789, and which styles itself the "(Protestant) Episcopal Church in the United States of America." He is only the personal chancellor for the Presiding Bishop of that Church. No members of the Church, either acting on their own, or acting collectively through their triennial assembly called "General Convention", have ever hired David Booth Beers to represent the whole Church, or to hire others to do so. Not only that, but there is no official position that has ever been created and called "Chancellor of the Episcopal Church (USA)". Thus, by definition, there cannot lawfully be any person who is entitled to claim that he is "South Carolina counsel for The Episcopal Church." At best, Mr. Tisdale is acting as South Carolina counsel for the Presiding Bishop's personal chancellor.

And just what would he do in that role? Well, let us look at the illegal deposition of the Right Reverend Robert Duncan, of the Diocese of Pittsburgh. Here is a link (caution: forty-page .pdf download) to the papers forwarded to the (then) Title IV Review Committee, which brought charges against Bishop Duncan for "abandon[ing] the communion of this Church." The second item in the link just given is an eleven-page letter detailing the basis for the charges of "abandonment" -- signed by David Booth Beers (and by Mary Kostel, a former associate with Mr. Beers's firm who is now the Presiding Bishop's personal litigation consultant).

Let me recap here for the benefit of those who may not have been following all the ins and outs in South Carolina to this point. Along with ECUSA, the Diocese of South Carolina (currently headed by Bishop Lawrence) was a party to the appeal that resulted in the State Supreme Court's decision in favor of All Saints Parish, Waccamaw Island. When the suit began in 2000, the Diocese was headed by Bishop Edward L. Salmon, Jr., who was succeeded in 2008 (after the case was on appeal to the South Carolina Supreme Court, and after a second try at electing him) by Bishop Lawrence.

The September 18, 2009 decision by the South Carolina Supreme Court knocked the stuffing out of ECUSA's claims that all parish property in the State was held in trust, pursuant to the terms of the Dennis Canon. Under that decision, it matters not whether a given parish has "acceded" to the Constitution and Canons of ECUSA: even if they did at some point, the Dennis Canon in and of itself is incapable of creating a trust interest in favor of ECUSA or the Diocese in the parish's property.

Significantly, ECUSA allowed the decision of the South Carolina Supreme Court to become final, without asking the United States Supreme Court to review it. (The deadline for doing so was December 17.) However, I have it on good information that certain members of the losing parish -- those members of the original All Saints parish who decided to remain with ECUSA, and not to leave with the majority who voted to realign -- did seek and obtain an extension of time within which to request the United States Supreme Court to review the South Carolina decision. That extension will expire -- and cannot be further extended -- on next Monday, February 15 (or actually, because Monday is a Federal holiday, the extension will expire on Tuesday, February 16).

If the dissident Waccamaw parishioners do file a petition for review with the United States Supreme Court by next Monday, then the burden will be on ECUSA to file a joinder in the petition within the following twenty days, or by March 8 at the latest. For if it does not do so, then it cannot benefit from whatever decision the Court may render in the case (assuming for the moment that the Court grants review). And the same is true of the Diocese of South Carolina.

So while nothing will probably happen in the next week in this current dust-up between Chancellor Beers and Chancellor Logan, you should watch very closely what gets filed in the United States Supreme Court between now and March 8 (of course, readers of this blog will be informed as to any such filings). For if you have assimilated all the legal niceties of the above discussion, then you should appreciate the following points:

1. There is currently a decision by South Carolina's highest court which holds that the Dennis Canon is not self-executing (i.e., no trust was created on any parish property in South Carolina when it was enacted -- if indeed it ever was -- in 1979).

2. The Episcopal Church (USA) did not see fit to request a review of that decision by the United States Supreme Court. Instead, its Presiding Bishop and her chancellor have left that function to the dissident parish members who lost their claim in that case to be the true vestry of All Saints Waccamaw.

3. Notwithstanding its failure to seek review of the adverse South Carolina decision, the Episcopal Church (USA) is apparently asking the Diocese for proof that it intends to enforce the Dennis Canon against certain parishes in the event that they try to leave.

4. The unspoken threat -- which has caused Bishop Lawrence to postpone his diocesan convention while he plans a response to ECUSA's provocations -- is that if Bishop Lawrence fails to sue any departing parish under the Dennis Canon, he could be charged with "abandonment" in the same manner as was Bishop Duncan.

If this is a correct representation of what is going on in South Carolina, then I have to say that it boggles the mind. Like any other citizen of South Carolina, Mark Lawrence is subject to its laws, and to the decisions of its courts -- as is the Diocese which he leads. He could not, in good conscience and as such a citizen, expend diocesan funds on pursuing a lawsuit that has already been adjudged futile by the State's highest court. And yet ECUSA is sending strong signals that he had better do so -- or else.

So what is really going on here? I shall be the first to admit that I have absolutely no inside knowledge. But from the other letters written by the front man Mr. Tisdale, I believe that I can add two and two to make four.

Take a closer look, for example, at the second letter written on January 25, already linked, and look at what it asks for on behalf of "the Episcopal Church" (emphasis again added):
a list of all persons who have been ordained to the diaconate or priesthood in the Episcopal Diocese of South Carolina since October 24, 2009; all persons who have been ordained by Bishop Lawrence during that period; and a copy of the declaration of conformity signed by each of the ordinands.
What is so special about the date of October 24, 2009? Well, it was the date of the last (special) convention held by the Diocese of South Carolina. And at that special convention, the diocese (note -- not Bishop Lawrence personally) adopted a resolution which contained the following text (bold added for emphasis):
. . .

Further Resolved, that the following statement shall constitute our understanding of the doctrine, discipline and worship of The Episcopal Church and shall be read at all ordinations in The Diocese of South Carolina, and a copy of which shall be attached to the Oath of Conformity signed by the ordinand at such service of ordination:

“In the Diocese of South Carolina, we understand the substance of the 'doctrine, discipline and worship' of The Episcopal Church to mean that which is expressed in the Thirty-Nine Articles, the Creeds, the Chicago-Lambeth Quadrilateral and the theology of the historic prayer books.”
Reading between the lines here, I would conclude that in the mind of David Booth Beers, at least, to say that the "doctrine, discipline and worship" of ECUSA equates to what is in the Thirty-Nine Articles, the Creeds, the Chicago-Lambeth Quadrilateral and the various predecessors to the current Book of Common Prayer can somehow be used as a basis for a charge of "abandonment."

The irony is that this is perfectly true -- only it applies to the Presiding Bishop and all who support and encourage her in her current canonical absurdities, and not to Bishop Lawrence and similar traditionalists in the Church. For to maintain that adherence to the Thirty-Nine Articles (as amended in the version contained in the BCP), the Creeds, the Chicago-Lambeth Quadrilateral and to the theology expressed in the Book of Common Prayer is to "abandon" the Episcopal Church (USA), is in reality to say that ECUSA itself no longer adheres to those foundational documents. Thus if anyone is abandoning the Church with such an assertion, it is the Presiding Bishop and her Chancellor, and not Bishop Lawrence.

Nevertheless, under the current regime at ECUSA, we must assume that the letters from former chancellor Tisdale are the precursors to an attempt to depose Bishop Lawrence on (false) charges of "abandonment." There would otherwise be no reason for the Presiding Bishop or her chancellor to agree to pay Mr. Tisdale to write no less than eight separate letters to try to gather the "evidence."

And if the Presiding Bishop thinks she can accomplish in South Carolina what she did in Pittsburgh -- depose the sitting bishop, and install a puppet who can serve as a figurehead in any lawsuit -- then that is just what she will try to do.

However, this move -- if the Presiding Bishop is so megalomaniacal as to attempt it -- will at the very same time serve as a litmus test for the Rev. Canon Mark Harris and the other members of ECUSA's Executive Council who are Bishop Schori's sole means of budgetary support. For if they can stand by and watch as the Presiding Bishop orchestrates yet one more uncanonical vote in the House of Bishops to "depose" a godly Bishop who is doing everything possible to keep his Diocese in the Episcopal Church (USA) -- all so a puppet can be installed who will immediately assert rights which are contrary to a final and binding decision of the South Carolina Supreme Court -- then I bid them goodbye. I will never again recognize the authority of such an "Executive Council", or of any of its members -- and I will do everything in my power to hold them accountable for breaches of their fiduciary duties owed to all Episcopalians.

This is a watershed moment for both those at 815 Second Avenue and their supporters, as well as for all those who are trying to hold on to a presence in the Episcopal Church despite its current tyrannical ways. Fortunately, their very arguments based on a "trust" in favor of the national Church may be turned against them -- if each parish owes perpetual allegiance to the national Church, then the leadership of that Church owes fiduciary duties to each and every diocese and parish. Those fiduciary duties are very clear, and do not admit of any waffling or tergiversation. Depending on how this all plays out, there will either be a very clear case for breach of fiduciary duties, or not.

If a court finds there are no such duties capable of being breached, then it will also have to conclude that ECUSA has no "hierarchy" -- because fiduciary duties flow precisely from a relationship of hierarchy. And if it holds that the leadership of ECUSA does owe such a duty to its members, then the skies will be wide open to suits against them for breach of fiduciary duties.

As I said at the outset, things are about to become legally very interesting in South Carolina.


  1. Perhaps some copies of the correspondence should be forward to the SC Bar Association ethics committee? This is just more proof to this layman, both Church and legal, that the inmates are running the asylum. And don't get me started on Washington. ;)

  2. I will do everything in my power to hold them accountable for breaches of their fiduciary duties owed to all Episcopalians.

    Or as my relative Bugs Bunny once said, "This means war." (...or was that Daffy Duck?)

    Br_er Rabbit

  3. "Mr. Tisdale addresses the current diocesan chancellor by his first name, so one assumes that there is a pre-existing relationship between the two, perhaps begun before Mr. Logan succeeded to the position of chancellor."

    With no ill will intended to Mr. Logan, and with no impairment intended for his relationship with & representation of the diocese - I wonder if, given the history, there might be some value in the diocese seeking new representation for this matter. In such case, a single letter from the new counsel could disavow all prior representations - which may have been influenced at least in part on the pre-existing relationship between the Tisdale and Logan.

    But I am not a litigator...

  4. MP, that is in fact what the Diocese has done. Here is a link to a letter written by C. Alan Runyon, Esq. of the law firm of Speights & Runyon, which is now representing the Diocese in this matter.

  5. Mr. Runyon's letter is as interesting for what it does not say as for what it does: It implies clearly that Mr. Tisdale cannot possibly be the "South Carolina Counsel for The Episcopal Church.

  6. Tommy Tisdale and Wade Logan are not too far apart in age, both lawyers, both native Charlestonians (as, indeed, their families have been for generations), and both Episcopalians. Of course they know each other.

    TEC is not a big place, so it's usually pretty easy to pick any two and play "six degrees of separation" -- but let me assure you, it's even more true in Charleston.

    Oh, and Tommy Tisdale's father was an Episcopal priest. At the Church of the Holy Communion, in Charleston.

  7. Is Logan the client that Runyan refers to in the letter linked to in comment #4? If not, isn't it unusual not to say who his client is?

  8. No, barnabasproject, Mr. Logan is not the client; Mr. Runyon's letter is responding to Mr. Tisdale on behalf of the Diocese, and saying that it will not produce any of the requested information. So the Diocese is the client, and while it is a bit unusual not to make a statement of representation at the outset, no attorney would misunderstand whom Mr. Runyon is representing. It is very clear from the context.

  9. What is the proper channel to charge the Presiding Bishop with abandonment and begin proceedings to depose her?

  10. mdfresh, thank you for coming by this blog with that question. Slightly less than a year ago, I gave a complete answer to it, along with a how-to, in this post.

  11. Dear Curmudgeon,

    Is there any chance that Her Most Reverendship has finally gone a bridge too far in her quest for unilateral power? I am looking for a ray of hope here.

    In the Faith,
    NW Bob

  12. If this is taken to the Supreme Court, and they rule as the SC Supreme Court did, will this be retroactive? In otherwords will churches who lost their buildings and assets in New York State, where judges have rule the other way, have any redress?

  13. eulogos, decisions by the Supreme Court can have retroactive effect, but only in those cases which have not yet become final as of the date of the decision. I believe the New York cases (of which I am aware) have all become final some time ago, and so, no -- those judgments could not be affected by anything the Supreme Court might decide.

  14. My dear Curmudgeon, two notes:

    1. Re "For to maintain that adherence to the Thirty-Nine Articles (as amended in the version contained in the BCP), the Creeds, the Chicago-Lambeth Quadrilateral and to the theology expressed in the Book of Common Prayer is to "abandon" the Episcopal Church (USA), is in reality to say that ECUSA itself no longer adheres to those foundational documents.": Your logic simply breaks down here.

    First, let's leave aside that adherence to the (English) 39 Articles has never been per se required in (P)ECUSA, so DioSC's use of them as other than an interesting historical document is curious.

    More importantly, DioSC's "signing statement" equivalent (i.e., attempt unilaterally to define what language in the Oath of Conformity means (at least, within that Diocese) by attaching it thereto), equates a set of items with the "doctrine, discipline and worship" of ECUSA. By making that equation, it states that all those items are part of such "doctrine, discipline and worship," and items not so listed are not included.

    As already noted, at least one of those items would not be generally recognized around ECUSA as more than a "historical document"; arguably, additional items would be included if defined not unilaterally but by General Convention. (Where in the C&C is a Diocese or Bishop permitted unilaterally to determine, even just within the bounds of such Diocese, what constitutes ECUSA's "doctrine, discipline and worship"? That power belongs to GC alone.)

    So, objecting to this definition may mean rejection of an item such as the 39 Articles, which the unilateral SC interpretation privileges above the status given them in ECUSA as a whole, represented in GC. But objecting can also mean objecting both to (a) the unilateral power arrogated in order to define these terms and to (b) the *exclusion* of other items from such definition.

    In other words, it simply does not logically follow that an objection to this definition means that ECUSA repudiates all of these items; it *might* mean that, or it might mean a rejection of one or more of the items but not all of them, and/or a rejection of the *exclusion* of other items, and/or an objection to any claim that DioSC has the right to define unilaterally what these terms mean -- any of which might support a charge of abandonment of the communion of ECUSA/TEC, because how DioSC defines these terms (apparently without unilateral authority to do so) differs in *some* respect from how TEC defines them.

    But it's a logical fallacy to assert that objecting to some part of DioSC's definition, or to its very act of definition, means that ECUSA/TEC is abandoning, say, the Creeds.

  15. Continuing...

    2. Re "If a court finds there are no such duties capable of being breached, then it will also have to conclude that ECUSA has no "hierarchy" -- because fiduciary duties flow precisely from a relationship of hierarchy.": Again, nonsense, as with your vision of "the skies ... be[ing] wide open to suits against [ECUSA's leadership] for breach of fiduciary duties.

    Fiduciary duties arise not from hierarchy per se but from relationships of confidence or trust. If you are a lawyer, you surely know this. Not all hierarchies qualify as relationships of “confidence or trust,” and many non-hierarchical relationships (as with attorneys and accountants) *do* give rise to fiduciary duties. The assertion that fiduciary duties flow from *all* hierarchies is absurd; thus, for example, in the absence of an express shareholders’ agreement, a parent company does not owe a fiduciary duty to a subsidiary.

    And what, precisely, is your view of the scope of this alleged fiduciary duty, such that a U.S. court would not refuse, on First Amendment grounds, to wade it, in order to avoid any weighing of competing doctrinal views?

    The Roman Catholic Church is perhaps the best exemplar of what the law deems a "hierarchical church." Do you honestly think that any court in this land would construe a RC Archbishop to have violated an (alleged) fiduciary duty to, say, a suffragan diocese or to parishes under him, if he requested data from them on ordinands, or disciplined clergy, or gave instructions as to property disposition or defense? (Mind you, there’s no single “Roman Catholic Church USA, Inc.” either.) So again, even assuming arguendo that a fiduciary duty exists, how exactly would you argue it has been violated here?

    As a corporate attorney, your reasoning on these two points, at least, seems to me to fail.

  16. Eli Miamiensis, thank you for your comments. I assume you are being precise with your language when you say the 39 Articles were never "per se required" in PECUSA, but that is not a response to the language that I used. I said that they were foundational, and in fact they were established as such by PECUSA on September 12, 1801.

    General Convention has no more power to legally define the "doctrine, discipline and worship" of ECUSA than does a Diocese -- see Article IX of the Constitution, which leaves that power to ecclesiastical courts. But my point was that you cannot charge the Bishop of a Diocese for "abandonment" by attributing responsibility to him for the wording of acts passed by a diocesan convention.

    With regard to fiduciary duties, we are talking about a church here, not a corporation. The Presiding Bishop and the Executive Council are charged with fiduciary responsibility for how they manage and spend the moneys left in trust for specific purposes, as I discussed in this post. If they spend church money trying to make a bishop disobey his own State's courts, or to punish him for obeying those courts, there would be a breach of those fiduciary duties, and I would expect the Attorney General of New York to take notice of it. But I will put up a separate post on that topic, and you can have at me there.

  17. Curmudgeon -

    Perhaps someone needs to inform the Attorney General of the State of New York about this sort of loosey-goosey use of trust funds??

    It might make life at 815 much more interesting!

  18. As a "foundational document" I have no problem with the 39 Articles: they were indeed part of the Church of England when the Diocese of South Carolina was founded (well before there was a (P)ECUSA!) and thus part of our foundation. Adhering to them as doctrine or discipline is very much another story, and not just to those of us who are Anglo-Catholics. Anglo-Catholic difficulties with aspects of Articles such as XX, XXII, XXV, and XXVIII are obvious, but it isn't merely the Anglo-Catholics who would find difficulties conforming to the 39 Articles.

    There are many, many parishes in the Episcopal Church who would be disturbed at having the Reserved Sacrament tabernacle ripped from the wall, I suspect, or to hear that the priest can no longer bring Grandma Communion when she's in the hospital (Art. XXVIII).

    Further, I doubt that there is a parish in the entire Church that would be in favor of conforming to Article XXXV: Of the Homilies. Are we actually proposing that the Book of Homilies set forth when Edward VI was king should be republished, and that all 21 of them should be read from the pulpit? Number 6: "Against Excess of Apparel"? (Does Jesus think bikinis preferable to pantsuits?) Or #3-- an entire (long) sermon entitled "On repairing and keeping clean of Churches"? (The Junior Warden might be pleased.) How about #21: "Against Rebellion"? (A little late-- we done did that one, way back in 1776.)

    Okay, so we support conforming to the the 39 Articles except #XXXV, so it's the 38 Articles. Oh, wait-- XXI was already removed, so it's 37. We don't want to drive the Anglo-Catholics out of the Church, so maybe we drop XXVIII at least (36 Articles), and maybe parts of XXV... And should we use the original or the updated versions of XXXVI? The first requires the Rite as set forth by Edward VI, but the second requires us to return to the Prayer Book of 1792 (so maybe we'd better drop that one, too-- 35 Articles). And we can't use the original Article XXXVII,but but that's okay, since General Convention changed it in 1792 to avoid our being subject to the King's Magistrates.

    But once we say it's okay for General Convention to change or adapt the 39 (of however many) Articles (it was done by General Convention in 1792 with Article XXXVII and in 1801 with Article XXI), then there's precedent for General Convention continuing to change them. Think what that could mean, if a current General Convention got hold of them. "Article LXXIX: Of the Necessity for Liturgical Dance". "Article CXLVI: Of the Recognition of Zen Meditation as a Way to God".

    If General Conventions can change the Aticles, they will; if they can't, then we're back to reading a 40 minute sermon in archaic language on Gluttony and Drunkenness and stopping the priests from bringing the Sacrament to the sick and dying.

    [The people who push hardest for a return to the 39 Articles seem never to have actually read them... at least those I've met have been surprised when confronted by some of them, and said "Well, I don't mean that part". But either it's the 39 Articles or it isn't... it isn't a buffet where we can fill our plates with just the parts we like.]

    Better, then,to leave them as 'Foundational': important parts of our historical record, of our understanding who we are by understanding who we have been.