Tuesday, March 30, 2010

Something Different for Holy Week

It's amazing where you can end up in the blogworld, by starting with Fr Hunwicke's Liturgical Notes, and clicking on links from there (in the comments, that is). This morning, for example, I started with a greatly satisfying dunking of Richard Dawkins for his diatribe against the Pope, and went on to enjoy reading about a fine old Anglican Catholic priest, and musings in the comments about the missal he used. From there I was directed to the Ex Fide blog, to read more about the Reverend Henry J. Fynes Clinton, where I found this striking photo essay about how Palm Sunday was celebrated in the Catholic rite before the reforms instituted by Pius XII.

Clicking on a link in the margin at the Ex Fide site took me to All of Creation Rejoices, where I enjoyed a retelling of the tale of the Emperor with No Clothes, in relation to the folly recently promulgated as "Earth Hour." And then I had to follow his link to "Margaret's blog", where he said there was a post which had made him laugh harder than he had for years. That turned out to be the blog Doves and Pomegranates, headed up by this wonderful quotation from the (then) Rev. Dr. Newman:
Do that which is good, and no evil shall touch you. Go your way; eat your bread with joy, and drink your wine with a merry heart, for God now accepteth your works; let your garments be always white, and let your head lack no ointment.

Revd. Dr. John Henry Newman quoting the Holy Ghost, 25 April, 1843.

The post which was linked is this one, entitled "Of Anglicans, Palms and Owlets." And yes, if you are into Anglican eccentricities and zaniness, the post is very funny, especially the bit about the clumsy thurifer who managed to set the tray of dried palm crosses alight, thereby making ready for Ash Wednesday a year in advance. I commend it to your readings for Holy Week.

From there you may choose further links to Orthodox, Catholic and Anglican blogs, or to others about embroidery, photography, food, and "the fair field o' folk, turtles and other stuff."

And there you have it: from Anglican Curmudgeon to Unhappy Hipsters in just five jumps. The world is your oyster! Enjoy.

Monday, March 29, 2010

A Timely Parable

I found this little tale, written by Hugo Salinas Price, at a site devoted to Mexican silver money. Our current out-of-control deficit spending is enabled only because gold no longer backs our currency. Richard Nixon removed the last such tie for international purposes in 1972, while FDR did it for all domestic purposes in 1934, so there is blame enough for both political parties for the unconstrained spree which has resulted. For the first time ever, Moody, Standard & Poor and the other rating services are threatening to downgrade the triple-A rating of U.S. Treasury bonds, and just a few weeks ago, Warren Buffett's Berkshire Hathaway was able to borrow long-term money at a rate lower than the Treasury is able to get in the open market. These are warning signs -- a sort of canary in the coal mine, if you will -- that we cannot continue on the present course which President Obama and the Democrats are taking us. Read Mr. Price's little parable, and see how apt it is:

It has been revealed to me that there is life on a planet within our Galaxy. Among the living creatures on this planet are humanoids – that is, beings that bear a great similarity to humans on this Earth, but who do not appear to be intelligent, as we humans are, but rather sub-human in their reasoning faculties.

These humanoids are at present quite busy building large structures such as bridges and tall buildings with concrete, which they invented many years ago, but without the use of reinforcing bars, or rebars, as we call them.

Of course, since we are intelligent, we know what has to be the result of their efforts: continual collapses which cause these poor humanoids great grief and disappointment.

It appears that in the remote past these creatures did use rebars in concrete constructions, but an influential politician whose name is recorded in their history as “Nicson” finally decided that concrete did not require rebars to give it tensile strength, and therefore banned their use.

At the present time their media of communication are filled with discussions on how to prevent concrete structures from collapsing, with consequent disruption of life. The situation is very distressing.

Some commentators in the editorial pages of the well-regarded newspaper “Cement Times” recommend closer supervision of the building of concrete structures; others recommend more transparency regarding building methods, while some recommend that buildings be constructed in such a way as to prop each other up, to avoid collapse. In the meantime, no formula has been found to remedy this plague of collapsing buildings.

A very few of these humanoids are mentioning the fact that when rebars were used, long before Nicson, buildings did not collapse. Scarcely any attention is given to these “rebar bugs”, as they are derisively referred to by the élite of the inhabitants, who are venerated as well-informed and expert authorities in the matter. The rebar-bugs have a spokesman who goes by the name of “Paulum”, but they seem to be fighting a losing battle against the sub-human intelligence of the majority and those wielding political power.

Rebars are regarded by the cement manufacturers’ representatives as old-fashioned and unnecessary, and in fact, as “barbarous relics”; they allege that reverting to use of rebars would hamper the economy, because it would slow down the building industry, which is thriving because buildings are collapsing daily and of course, have to be rebuilt. Besides, they argue that rebars are “too scarce”.

Indeed, it might be suspected that the “Federal Cement Manufacturers’ Association” has an interest in retaining the present mode of rebar-less construction. Their disdain for rebars speaks louder than words of their sub-human nature, for by the simple expedient of allowing the use of rebars, which they have banned completely, they would find an undoubtedly efficacious remedy to the parlous situation which prevails on their planet. However, it is apparent that there is no wish to accept the application of this remedial measure on the part of the Federal Cement Manufacturers’ Association, or the “Fed” as they call it.

Such is the travail now prevailing amongst the humanoids of that remote planet. There is nothing to be done; they must be allowed to suffer. Perhaps they may, in the course of millenia, eventually acquire human intelligence.

Saturday, March 27, 2010

For California Lawyers: 10 Questions About the Episcopal Church Cases

First, for those who have not already become familiar with them, here are links to the three appellate opinions thus far in the Episcopal Church Cases:

The first decision by the Court of Appeal (June 25, 2007; superseded by the Supreme Court's opinion) may still be read here.

The decision on review by the California Supreme Court (January 5, 2009) is here.

And the latest decision, on petition for writ of mandate by the Court of Appeal, filed yesterday, is at this link.

Now, here are ten questions, on which I would like your input:

1. As you can see from the latest decision, all that changed between the date of the Supreme Court's decision and the ruling by the trial court denying the plaintiffs' motion for a judgment on the pleadings (which was reversed yesterday by the Court of Appeal) was that the defendants filed answers to the two complaints. How can the Court of Appeal use the Supreme Court's decision affirming the overruling of defendants' demurrers to the complaint to now hold that the Supreme Court also (in effect) sustained the plaintiffs' demurrers to the answers filed on remand?

2. The opinion yesterday discusses only one factual issue -- waiver and estoppel -- raised in the defendants' answers. How can that issue, based on the intent of a letter sent to the parish by the diocese, be decided purely as a question of law? That is, if the allegations of the answer about waiver and estoppel are true, which is how they must be regarded for purposes of a judgment on the pleadings, how can they not amount to a valid defense to the complaints?

3. How can the appellate court determine, from this record, that leave to amend the answers further should be denied without the defendants having received even one opportunity to do so?

4. The appellate court construes the Supreme Court's opinion as having fully disposed of all triable issues in the case before the defendants had even answered (i.e., so that it did not matter what they later answered). How could that be a valid reading of what the Supreme Court had the power to do at that stage of the case? (And see also, in that regard, Question #10 below.)

5. And why, if that is what the Supreme Court actually intended to do at that stage of the case, did it affirm the appellate court's disposition which sent the case back to the trial court for "further proceedings"?

6. Why, if the Court of Appeal is correct that the Supreme Court decided the issue of ownership finally, as a matter of law, before the defendants had even answered the complaints, did the Supreme Court thereafter bother to modify its decision?

7. How do you read the effect of the changes the Supreme Court ordered made to its decision, in view of the petition for rehearing filed by St. James Newport Beach?

8. How would you treat the motion for judgment on the pleadings brought by the Diocese and the Episcopal Church (USA) in light of the following argument they made to the United States Supreme Court, as a reason to refuse to review the decision of the California Supreme Court (emphasis added in the quote from respondents' brief below)?
Apart from raising no substantive issues that warrant review, the Petition for a Writ of Certiorari should be denied on jurisdictional grounds because trial court proceedings remain ongoing and no final judgment will be entered until those proceedings have run their course.
9. If a motion for a judgment on the pleadings could be granted without leave to amend after the first filing of an answer, then why could the California Supreme Court not have directed entry of a final judgment in the plaintiffs' favor when it issued its opinion? Why did the Court of Appeal, which decided yesterday that such an entry of judgment was required by the Supreme Court's decision, after receiving the remittitur send the case back to the trial court for any "further proceedings" at all?

10. Did the Court of Appeal's decision yesterday fail to give proper effect to section 425.16 (b)(3) of the California Code of Civil Procedure? That section reads as follows:
(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
I shall be very interested in any answers you care to give to any of the foregoing questions.

California Outrage - Appellate Court Tries to End St. James Case

Here it is 12:30 a.m., and after just putting up my previous post about how a trial court judge in Indiana has properly applied the doctrine of "neutral principles" to a dispute within the Presbyterian Church, I receive word that the Fourth District Court of Appeal in California has directed that a final judgment be entered against St. James parish, in Newport Beach, based on the earlier decision "on the merits, on this record" by the California "Supreme" Court. The opinion carries the hallmark of a judicial coverup: in contrast to its earlier decision in the matter, the Fourth Appellate District (Division Three) has decreed that its Kafkaesque "resolution" of the St. James case shall remain unpublished -- meaning that it is relegated to California's judicial junkheap, not ever to be cited or applied in any other case to come before the California courts, and without precedential value to anyone -- except, unfortunately, St. James parish in Newport Beach.

It is through such "unpublished" decisions that California judges attempt to conceal their worst excrescences on the body legal -- in essence, by deciding not to publish their decision, they are saying: "This is such a routine matter that our disposition of it does not break any new ground, or require that any other court look to it for any further guidance as precedent."

Except that this decision is precisely not the kind of decision that has occurred routinely in the California courts. In fact, it is fair to say, as the dissent notes, that never before, in the history of California -- or of any other State of the United States, or even in England (the source of our "common law") -- has any court ever seen fit to decree that a final judgment be entered in a case based solely upon the decision of a higher court ruling upon the sufficiency of a challenge to the complaint in a case. Normally, the challenge to a complaint (called a "demurrer" in California procedure) says: "So what if everything the complaint alleges is true? It still does not state a claim upon which the court may grant relief."

What the California Supreme Court decided, in its earlier opinion which I discussed in this post, was that if the allegations in the plaintiffs' complaint are deemed to be true, then the plaintiffs have stated a cause of action, and the defendant should be required to answer the complaint. Initially, the rush-to-judgment liberal Court put language into its opinion that was embarrassingly "final" -- that is, it wrote as though it was deciding the case on its merits, as though it had been fully tried already, with evidence from both sides. But when the defendant St. James parish pointed out, on a petition for rehearing, that the Supreme Court had overstated its ability to resolve the entire case before an answer had been filed, the Supreme Court grudgingly modified its opinion to make clear that "on this record" -- that is, the record on appeal from a challenge (demurrer) to the complaint, before any answer had been filed -- it was deciding only that if what the plaintiffs alleged was proved to be true, then they could prevail in their case.

So with those modifications to its decision, the Supreme Court affirmed the decision of the Court of Appeal, which had remanded the case to the trial court for "further proceedings" consistent with its rulings. "Further proceedings" mean all of the things that normally take place in a lawsuit: discovery of the relevant facts, trial to the court or a jury, and then judgment, based on the evidence and on who satisfied their burden of proof at trial.

But ECUSA and the Diocese of Los Angeles did not want to have to prove anything at a trial. For them, the decision of the California Supreme Court, on the facts which they had alleged in their complaints, was determinative and binding: it had held that it was ruling on the merits of the property dispute -- based solely on the plaintiffs' complaints -- and so the case was now officially over. Without regard to whatever the defendants wanted to say in their answers to the allegations, the plaintiffs believed the courts had already decided in advance that any and all things they could say by way of an answer would be insufficient as a matter of law. The Fourth District's opinion filed yesterday bears out that claim. Unbelievable as it may seem, two judges on the three-judge panel in the Court of Appeal have decided that the case is over, and that St. James loses its property without ever having a chance to prove the allegations it made in its answers.

The Court of Appeal reaches this result via a complete sleight of hand, and in total disregard of California law. It points out, for example, that after the case was remanded to the trial court, St. James did file an answer to the complaint -- and -- lo and behold! -- that answer referred to the very same letter (see ¶ 10 of the post) which St. James had attached as an exhibit to its motion asking the trial court to find that the Diocese's lawsuit against it be stricken, without having to answer its complaint. Consequently, it reasoned, because the letter (which waived, on behalf of the Diocese, any right to claim the Dennis Canon with respect to certain new property being acquired by the parish for its use) was in "the record" before the Supreme Court, then anything which St. James could possibly allege in its answer, filed after the case had been sent back to the trial court, had already been submitted to the California Supreme Court, and "considered" and decided by that Court about a year ago.

The Court of Appeal's decision yesterday violates due process, and shows an utter contempt for the normal way that cases proceed to trial and judgment. Its reasoning (such as it is) is specious and disingenuous, and is deployed solely toward the outcome it has decided it wants, which is that St. James loses everything it owns --without being able to have a trial to show what were the actual facts, as opposed to what ECUSA and the diocese alleges were the facts in their complaints. A "judgment on the pleadings" (as was entered here) is based on the same grounds as a demurrer to the complaint (Hughes v. Western MacArthur Co. (1987) 192 CA3d 951, 957, 237 Cal.Rptr. 738, 742); here it was based on the answer filed after remand. And since the Supreme Court's opinion simply affirmed the Appellate Court's decision with respect to the defendant's demurrers, before any answer had been filed, and which included a remand of the case to the trial court for further proceedings consistent with that disposition, it is simply impossible for a lower court now to direct that a final judgment be entered without those further proceedings.

But that is what, incredibly, the Court of Appeals for the Fourth Appellate District (Division Three) has now done in this case. Through some of the most tortuous reasoning ever advanced, the Fourth District panel attempts to show that the case as "decided" by the Supreme Court is still in the same posture as though the parish's answer had been already filed -- which it had not been. (Don't forget that before the United States Supreme Court, ECUSA argued, as a reason for denying review, that the decision of the California Supreme Court was not yet a final disposition of the case.) The only way the Court of Appeal can now say that the motion should be resolved in the plaintiffs' favor is that the Supreme Court has already ruled on the legal insufficiency of the facts alleged in the answer, which was not before that Court. But the Supreme Court sent the case back for trial after making those rulings. Now the Court of Appeal has, in effect, overridden the Supreme Court and decided that no further trial is necessary, because what the Supreme Court really meant to say is that the case was over. And its authority for so holding is -- the Supreme Court's opinion remanding the case for further proceedings. Go figure.

Your Curmudgeon is appalled. Read the crazy decision, and concurring opinion, and see for yourself just how incompetent some courts in California have become. I will have more detail about the multiple errors and false statements in this opinion later.

Friday, March 26, 2010

On the Proper Application of "Neutral Principles"

The Hon. Carl Heldt, Judge of the Vanderburgh Circuit Court in Indiana, gives his colleagues on the bench an object lesson in how to decide a church property case through the application of "neutral principles of law". (H/T: Layman Online blog. The decision is downloadable as a .pdf of 29 pages from this link.) The case involves units of the Presbyterian Church (USA), but it has lessons for Episcopal Churches who find themselves in disputes over property that involve the Dennis Canon. For that reason, and because the opinion is instructive even to non-lawyers, I shall quote from and analyze it in this post.

First, let us set the scene. The Olivet Presbyterian Church in Evansville, Indiana traces its origin to a congregation first organized in 1900. In 1968, it moved to its present property, which it purchased with donations made by its congregation. The Presbyterian Church (USA) had not yet formed as of that time, but the parties stipulated in court that neither it nor its predecessor entity in Indiana, the United Presbyterian Church (USA), had at any time contributed any money to the purchase or the maintenance of the property.

In 2006, 98% of the parishioners of the Olivet Presbyterian Church voted to realign with the Evangelical Presbyterian Church, and petitioned the regional presbytery (the plaintiff "Ohio Valley Presbytery") for permission to withdraw from that body. The Presbytery granted permission, but provided that Olivet would have to hand over all its property, bank accounts and other assets to the Presbytery. It asserted that a clause in the PC(USA)'s "Book of Order" (akin to ECUSA's Constitution) imposed a trust for the benefit of PC(USA) on all property belonging to a Presbyterian Church (USA) parish. The parish's real property was appraised for $1 million in 2008.

Do you see the parallels here? Both the Presbyterian "Book of Order" and ECUSA's Dennis Canon attempt to impose on their respective parishes' properties a trust provision which is triggered when a parish elects to leave the church. However, unlike the PC(USA), very few Episcopal Church dioceses have provisions in their respective constitutions which spell out procedures for parishes which wish to leave the diocese. In the PC(USA), these procedures are also laid out in the "Book of Order."

When Olivet politely refused to deed over its property, the Ohio Valley Presbytery ("POV") and the regional Synod of Lincoln Trails of the Presbyterian Church (USA) filed suit against Olivet and the Evangelical Presbyterian Church in the Circuit Court of Vanderburgh County, where Evansville is located. And there they tried out their trust theories in front of the Hon. Carl Heldt.

The first thing Judge Heldt did was to examine how title to the various assets was actually held. He noted that the bank "accounts are not joint, nor are there contingent beneficiaries, any trust interest for any person or entity or any other interests identified in the accounts other than being solely held by the corporation . . .". The same was true of the warranty deed to its property, which named Olivet as the sole grantee. "The deed conveys no interest to the POV, the Synod or the PC(USA) or any predecessor denomination. There are no restrictions, reservations, reversions and/or trusts identified. . . . It is further undisputed that the Olivet Real Estate and improvements have been continuously owned by Olivet since its purchase to the current time."

Next, the Court noted that since the formation of PC(USA), Olivet had mortgaged its property to both the Synod and the Presbytery at various times, and that the mortgages provided further "indicia of ownership" under a neutral principles analysis:
Olivet points to the existence of these undisputed notes and mortgages indicating Olivet is "mortgagor." Olivet asserts and the Court finds that this is another indicia applicable under the Neutral Principle Analysis that the Plaintiffs have acknowledged the full ownership interest in the real property held by Olivet. Standing alone, it would be insufficient; but it is an indicia of ownership since mortgagees do not have a real estate title interest in property unless or until there is a foreclosure. If the mortgagees (both Plaintiffs) owned the property in trust, this would be inconsistent with the mortgage form utilized and recorded by both Plaintiffs[, which also implicitly allowed Olivet to convey title to another -- there was no "due on sale" clause].
The Court then turned to an examination of Olivet's status as a not-for-profit corporation under Indiana law. As such, it had both Articles and Bylaws, both of which could be amended without any restriction, or requirement of approval at any higher level. The Court acknowledged that in its Bylaws, Olivet had "indicated that it was a congregation of the Presbyterian Church (USA) and recognized church governance as the constitution." In a key passage, the Court went on:
The facts providing indicia of support for Olivet concerning the Articles of Incorporation and the By-laws are that nowhere in the Articles of Incorporation or in the Bylaws was any statement made that the real or personal property was being placed in trust for the benefit of any of the Plaintiffs and/or the PC(USA). Further, nowhere in the Articles of Incorporation or By-laws was it stated that membership was irrevocable. . . .
Further indicia of a Neutral Principles Analysis in favor of Olivet is that there are no specific sets of By-laws prescribed by the Book of Order or other authority of Plaintiffs. Also, I.C. § 23-17-1-1(3), et seq. indicates that a non-profit corporation has the statutory right to make and amend by-laws. Neither side has been able to provide any authority for requirement for any specific set of by-laws and this Court must conclude that none exists.
The Neutral Principle Analysis that Plaintiffs assert is that the By-laws indicate that they are a congregation of the Presbyterian Church (USA) and recognized church governance as the constitution while they voluntarily chose to be affiliated with such denomination. Also, Plaintiffs point out that the By-laws state that they will not be changed so as to be inconsistent with the church constitution while they voluntarily chose to be affiliated with such denomination. Olivet contradicts these assertions by Plaintiffs through indicating that there is no specific set of by-laws prescribed by the Book of Order, the Book of Order contemplates individuals and/or congregations leaving the denomination and finally, it is undisputed that one of the checklist items prescribed by the Plaintiffs to effect Olivet's disassociation was that Olivet change their By-laws.

. . . Olivet agreed to abide by the governance of the church so long as they were a member, but church governance permits their departure and all agree they have departed and are following a new Presbyterian Church governance. As Olivet has indicated, they had a voluntary right to put [language] in and have the same voluntary right to take it out regarding when they follow or recognize church governance.
These are the exact same issues which are currently at stake in the litigation both in Fresno and in Ft. Worth, which is now before the respective Courts of Appeal in those cities and awaiting oral arguments and eventual decisions. In ECUSA, no provision of the Constitution or Canons requires that a parish -- or diocese -- seek approval before amending its articles or bylaws. (Many dioceses place such restrictions on their parishes, but ECUSA does not.) The articles and bylaws of parishes, and the constitutions of dioceses, frequently provide that they shall not be inconsistent with the national canons or constitution, and that they "recognize the authority of General Convention", or words to that effect. However, there is no provision which would prevent that language from being changed in the event of a withdrawal. The appellate courts in Ft. Worth and Fresno are both being asked to rule whether the dioceses in question could, under state law and in the absence of any national restriction or prohibition, amend their respective constitutions so as to remove the language of accession to the national church.

Judge Heldt continues with his analysis under neutral principles:
The next indicia under a Neutral Principles Analysis is to look at other written documents. Based upon a review of the record, there is no written express trust existing between Olivet and the Plaintiffs. . . . No written and signed express trust has been presented by either party and thus the Court concludes one must not exist. This indicia favors Olivet's position. An express trust is one created by the direct and positive act of the settlor by some writing, deed, will or oral declaration. I.C. § 30-4-2-1 (a). Plaintiffs indicate that the Indiana trust provisions relied upon by Defendants were not passed until after purchase of the property. However, nothing prohibited a trust clause being inserted in the Olivet deed, which [clause] does not exist. Further, nothing prohibited Defendants from making a written expression signed by the appropriate official of the church indicating that the property was put in trust after passage of the Indiana trust statutes in 1971 and certainly none of the Plaintiffs nor PC(USA) appear to have sought to have Olivet make such a written expression since 1971.
Finally, with respect to the trust provision in the Book of Order, Judge Heldt acknowledged that it "provides an indicia of ownership in the [national] church under a Neutral Principles Analysis." The only question remaining was: what effect could an Indiana secular court give to such a provision in a religious book of discipline? With regard to that question, Judge Heldt will later make this observation (op. pp. 21-22):
Indiana real estate law governs whether title to real estate has been transferred. If the real estate property owned by Olivet Presbyterian Church of Evansville, Indiana is to be placed in trust, it ought to be done through real estate transfer by the property owners. Plaintiffs' initial admission concedes that Olivet never did so. (Complaint, ¶ 31). While Plaintiffs suggest the Trust Code requiring a writing was passed in Indiana after Olivet's original purchase of the property in 1968, nothing prohibited either party from inserting a trust clause in its deed or signing a written trust agreement placing the property in trust as required for real property being transferred into a trust through a written instrument bearing the signature of the authorized owner of the real estate, LC. § 30-4-2-1, et seq. Also, the Indiana Statute of Frauds has prohibited parole evidence to demonstrate transfer of title to real property to contradict a writing, I.C. § 32-21-1-13, and requires the conveyance to be made by a deed in writing and properly signed.
First, however, Judge Heldt first surveys the state of First Amendment law in Indiana's higher courts, and finds that they have determined to adopt the "neutral principles" approach espoused by the United States Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979). He consequently rejected the plaintiffs' request that he follow the "[hierarchical] polity approach" first articulated more than 100 years earlier, in Watson v. Jones, 80 U.S. 679 (1871) (see this earlier post, and this one, for more background on the two cases). Almost in passing, he notes that the "implied trust doctrine" (see the earlier of the two posts just linked) has been rendered "'impotent [in Indiana] . . . in so far as such theory is based upon principles of ecclesiastical law, church doctrine, or church discipline. It is clear that the civil courts cannot rely upon ecclesiastical law of the church to impose an implied trust in real estate.'" (Slip opinion at p. 17, quoting from Merryman v. Price, 259 N.E.2d 883 [Ind. Ct. App. 1971].) Judge Heldt describes the Merryman case in the following terms (p. 18, emphasis added):
. . . a quiet title action was brought by trustees of a local church against officials of a general church. The Indiana Court of Appeals held that where the local church officials made their prima facia case with reference to the legal title to the church property and where the positions of the officials of the general church could not be sustained without reference to ecclesiastical law, church discipline and/or church doctrine, title was properly quieted in the trustees of the local church.
With these legal principles established, Judge Heldt turns to the national trust provision in the Book of Order, and finds that he must regard it in the light of another provision:
Generally, the Presbyterian Chmch (USA) Book of Order is an ecclesiastical set of rules. Unless one is sitting as an ecclesiastical judge, little reference is needed to the Book of Order and that book so states:
G-9.0102 [Chapter IX, Paragraph 1(a)]
Governing Bodies of the Church are distinct from the government of the state and have no civil jurisdiction or power to impose civil penalties. They have only ecclesiastical jurisdiction for the purpose of serving Jesus Christ and declaring and obeying His will in relation to truth and service, order and discipline.
Compare this provision in the Book of Order with the following provisions in Sections 2 and 3 of ECUSA's Canon IV.14:
Sec. 2. Resort to secular courts. No Member of the Clergy of this Church may resort to the secular courts for the purpose of interpreting the Constitution and Canons, or for the purpose of resolving any dispute arising thereunder, or for the purpose of delaying, hindering or reviewing or affecting in any way any proceeding under this Title.

Sec. 3. Review of proceedings by secular courts. No secular court shall have authority to review, annul, reverse, restrain or otherwise delay any proceeding under this Title.
In their different ways, both PC(USA) and ECUSA are saying the same thing with these provisions: ecclesiastical matters of doctrine, discipline and worship are for ecclesiastical courts, and not secular ones. What does that make of the Dennis Canon? Well, watch what Judge Heldt does with the Book of Order's equivalent of the Dennis Canon:
Plaintiffs' case significantly relies upon G-8.0201, added to the Book of Order in 1981, which states:
All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).
. . .

The Olivet Defendants reply asserting that the Book of Order is an ecclesiastical document which by its very terms is not supposed to have civil law jurisdiction[, citing the language of section G-9.0102 quoted above] . . . .

. . . the Court concludes that wading into various portions of the Book of Order which may or may not be conflicting requires this Court to determine ecclesiastical questions in the process of resolving property disputes which is prohibited by the First Amendment to the United States Constitution. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 447 (1969). Plaintiffs ask this Court to hold that pursuant to G-8.0201, the Olivet property is held in trust for the use and benefit of the Presbyterian Church (USA) and yet Defendants assert that G-8.0201 is not a settlor's declaration but an assertion by an entity that does not hold title to any of the property at issue in the instant case and which never held property at issue in the present case. Plaintiffs assert the actions of its Presbytery consisting of voting members of various churches must be upheld while Defendants cite Chapter G-9.0102, stating goveming bodies of the church (i.e., a Presbytery) have only ecclesiastical jurisdiction. As further example, G-1.0307 of the Book of Order states: "That all church power, whether exercised by the body in general or in the way of representation by delegated authority is only ministerial and declarative . . . ." At G-1.0308 it states "An ecclesiastical discipline must be purely moral or spiritual in its object and not intended with any civil effects . . . ." This conflict and the other potentially conflicting provisions in the Book of Order appear to this Court to force an evaluation or determination of ecclesiastical questions or interpretations in the process of resolving this property dispute. This Court declines to do so, based upon the First Amendment to the United States Constitution, the Indiana State Constitution, U.S. Supreme Court precedent and state court precedent. "Civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form." Jones v. Wolf, 443 U.S. 595, 606 (1979).
Judge Heldt concludes with an observation which echoes that made by the Hon. Randy Bellows, Judge of the Fairfax County Circuit Court in the Virginia litigation, in a decision which is now on appeal to the Virginia Supreme Court (the appeal is scheduled to be argued sometime during the week of April 12-16):
If it were intended that the Olivet Real Estate and personal property were to be held in trust for PC(USA), the same could have been done by revising the deed and documents of ownership. Such was the charge of the United States Supreme Court in Blue Hull, that the parties organize their relationship to establish the trust clearly so Courts would not be forced to weigh conflicting evidence. The fact that this was not done allows an inference that the parties, or at a minimum Olivet, did not intend for an implied or express trust to be established. Insufficient evidence has been provided by PC(USA) to show that the property at issue in this case is held in trust. The best evidence of ownership is presented by Olivet in the language of the deed and the documents of ownership.
And with that, Judge Heldt concludes that judgment is to be entered against plaintiffs, and for the defendant Olivet, establishing that it, and it alone, owns the title to all of its property, free and clear of any trust sought to be imposed by PC(USA).

At this point, it is not known whether the Presbytery or the Synod plans to appeal. Given the Merryman decision as cited and quoted by Judge Heldt, it would appear that his decision is solidly based on Indiana precedent, and that the chances of any such appeal being successful would be from slim to none.

In a later post, I will compare and contrast Judge Heldt's decision in Indiana with a recent decision to the opposite effect from a trial court in Connecticut. It is only through the study of what makes the courts reach different outcomes in different circumstances that one can truly appreciate the degree to which the Dennis Canon has entangled ECUSA in secular disputes, and thus detracted from its mission as a branch of the one true catholic and apostolic Church.

Friday TED Talk: Alan Siegel on Ending Legal Jargon

Alan Siegel is a founding member of Siegel+Gale, a firm that specializes in branding products, services and concepts by reducing them to their most essential elements. As such he is someone who knows how to sidestep the complexity that suffuses official and legal documents, communication and legislation. In the brief (four-minute) talk below, he shows off some of his favorite projects: writing a one-page, all-inclusive credit card agreement; reducing an incomprehensible IRS form letter to simple English; and devising a simple contract for use by IBM:

You may read more about Alan Siegel here; here are links (.pdf) to his simplified credit card agreement and to his simplified IRS form letter. Now if he can just take on the Health Care Reform Bill!

Watch his talk in high-resolution video at this link (recommended), and download his talk in that and other formats from this page.

Thursday, March 25, 2010

Spirit of St. Paul Alive and Well in S. Carolina

The spirit of St. Paul is alive and well in South Carolina. The result shows up the hollowness and the thoroughly unbiblical character of ECUSA's "take no prisoners" litigation strategy, and raises the value of Mark Lawrence's stock higher than ever before.

StandFirm in Faith has published (with permission) an email from the rector of the Episcopal Church (USA)'s parish of All Saints Waccamaw in South Carolina. Some of its members had previously filed a petition with the United States Supreme Court to review the decision of the South Carolina Supreme Court, rendered last September, which held that the Dennis Canon was ineffective by itself to create any trust interest in Episcopal parish property in South Carolina, as I discussed in this earlier post.

The email discloses that the Episcopal parish of All Saints Waccamaw has reached an agreement with the AMiA parish of All Saints Waccamaw, which withdrew from ECUSA in 2003, and which had ultimately (in the South Carolina Supreme Court) prevailed in the lawsuit brought against it by the Episcopal parish, as well as in an earlier lawsuit brought against it by the Diocese of South Carolina and by ECUSA itself.

The significant news about this settlement is that there is no indication that ECUSA or 815 Second Avenue participated to the slightest degree in the resolution of the lawsuit. From my previous post about the appeal, recall that the posture of this case in the United States Supreme Court was as follows.

There had been two lawsuits before the South Carolina Supreme Court. The first, which began in 2000, was brought by All Saints Parish, Waccamaw against the Diocese and ECUSA to establish that it owned the title to its property notwithstanding (among other reasons) the Dennis Canon. A second suit was filed in 2005 by the vestry appointed by Bishop Salmon to replace the vestry of the parish that had voted to realign with the Anglican Mission in America, an affiliate of the Anglican Province of Rwanda. The two lawsuits were eventually consolidated for trial, and then ultimately for appeal to the South Carolina Supreme Court.

As I explained in this post, the petition for review filed by the ECUSA parish created some potential complexities for the relations between ECUSA and the Diocese of South Carolina, headed by Bishop Lawrence. The situation was further complicated by the fact that ECUSA itself chose not to file its own petition (or to ask for an extension, as did the parish) by the December 2009 deadline within which to ask the U.S. Supreme Court for review.

That failure left ECUSA only the option to file a separate brief in support of the petition for review (and not a petition in its own right), as I described in this earlier post. But a brief in support of somebody else's petition for review does not preserve the same rights as does a petition for review filed by a party to the judgment below. ECUSA's right to a review of the South Carolina decision, therefore, depended entirely on the merits of the petition filed by the parish.

Rule 12 (6) of the Supreme Court's Rules provides in part:
All parties other than the petitioner are considered respondents, but any respondent who supports the position of a petitioner shall meet the petitioner’s time schedule for filing docu­ments, except that a response supporting the petition shall be filed within 20 days after the case is placed on the docket, and that time will not be extended.
Accordingly, because it did not file its own petition for review within the deadline, ECUSA was a "respondent" before the Supreme Court -- a "respondent in support of petitioner [All Saints parish]," to be exact. And now, because the petitioner All Saints (ECUSA) parish has agreed to settle with the respondent All Saints (AMiA) parish, that leaves ECUSA with no petition to support. Rule 46 (2) (a) of the Rules of the Supreme Court provides:
2. (a) A petitioner or appellant may file a motion to dis­miss the case, with proof of service as required by Rule 29, tendering to the Clerk any fees due and costs payable. No more than 15 days after service thereof, an adverse party may file an objection, limited to the amount of damages and costs in this Court alleged to be payable or to showing that the moving party does not represent all petitioners or appellants. The Clerk will not file any objection not so limited.
By Rule 12 (6), ECUSA became a "respondent", and not a "petitioner" or "appellant". However, its position as a respondent was not adverse to the petitioner All Saints parish, within the meaning of Rule 46 (2) (a), because ECUSA filed its own brief in support of the petition filed by All Saints. From this it follows that the power to dismiss the petition for review belongs to All Saints (ECUSA) parish, and to that parish alone. It will be up to an "adverse party" to object to the motion to dismiss, and by the announced settlement, there will be no such objection filed.

Thus there will be no chance of the Supreme Court accepting review of the South Carolina Supreme Court decision (that chance was already minimal, anyway -- as ECUSA's own attorneys appeared to recognize). Upon the filing of the parish's motion pursuant to the settlement agreement, the Clerk will wait the required 15 days, and then will enter an order dismissing the case.

At that point, the decision by the South Carolina Supreme Court will become the the law in South Carolina: the Dennis Canon will be everywhere and forever ineffective, within the borders of that State, to create any kind of trust interest in any Episcopal parish in favor of either the Diocese of South Carolina -- or the Diocese of Upper South Carolina, for that matter. The Dennis Canon will, in short, be dead in South Carolina.

This fact of life will have several repercussions for the current witch hunt which the Presiding Bishop of ECUSA has been conducting against the Right Reverend Mark Lawrence and his Diocese. In the first place, it will completely remove, as the grounds for any charges of "abandonment of the communion of this Church", Bishop Lawrence's and his Diocese's failure to join in ECUSA's brief in support of the petitioning parish. For if ECUSA was unwilling to file its own petition within the prescribed time limits, so as to preserve its rights, then the Diocese can scarcely be faulted for failing to file a brief in support of the parish's petition by the required deadline -- since ECUSA's failure left the parish in complete control of the proceedings to seek review.

But the second and even more important repercussion will be that ECUSA's strategy of "take no prisoners" will have been rendered completely ineffective within the State of South Carolina (and its two Dioceses). Such a strategy depends entirely for its success upon the upholding of the Dennis Canon as having created a valid trust, and the South Carolina Supreme Court has unequivocally held that the Dennis Canon accomplishes no such purpose. From the date the petition for review is dismissed by the Supreme Court Clerk, ECUSA and its Presiding Bishop will be powerless to threaten parishes in the State with any sanctions for leaving, or realigning.

And finally, this end result will emasculate (in South Carolina, at least) ECUSA's outlandish claim to be a "second Church" in the State, separate and apart from the two Dioceses themselves. ECUSA and 815 will be unable thereafter to bring about a different result in any court in the State by citing the Dennis Canon. (Of course, as this commenter expresses, hope always springs eternal.)

And the converse of this observation will be a strengthening of the hand of Bishop Lawrence. For now we see, by the settlement as communicated, the wisdom of his announced policy of not trying to alienate any further the parishes which had already become alienated from ECUSA. I predict that the settlement in Waccamaw Neck, when its details become public, will bear out fully the wisdom of Bishop Lawrence's announced intention to lower the heat against realigning parishes, and those thinking about realignment -- and to deal with the problem as Christians, guided by the words of St. Paul. This development will, in its turn, further undercut 815's disastrous litigation strategy, and light the way to further and future settlements along the same lines, as I suggested some time ago might be possible in this post.

As an attorney, I am always happy when clients and their opponents agree to bury the hatchet. But as the Chancellor for an Episcopal Church, I am doubly happy when my fellow Christians see the wisdom in the words of St. Paul. And I am triply happy for all the good parishioners of the Diocese of South Carolina, who are most fortunate to have a godly bishop who is blazing the way for all other Episcopalians to follow -- and who (not deliberately, of course, but simply out of his sheer willingness to follow in the footsteps of St. Paul) is pointing up the un-Christianlike and scripturally invalid policies being followed by the Presiding Bishop.

Godspeed, Bishop Lawrence! Godspeed, the Diocese of South Carolina, and both of the parishes of All Saints Waccamaw! Blessings be upon you, now and unto all future generations, and may your light so shine before other Episcopalians that they may see your good works, and glorify your Father, which is in Heaven.

A Poem for the Day

I do not often post just quotes or brief thoughts, but through serendipity I came across this little gem of a poem, and thought it well worth sharing with you:

The Quip

The merry World did on a day
With his train-bands and mates agree
To meet together where I lay,
And all in sport to jeer at me.

First Beauty crept into a rose,
Which when I pluck'd not, "Sir," said she,
"Tell me, I pray, whose hands are those?"
But Thou shalt answer, Lord, for me.

Then Money came, and chinking still,
"What tune is this, poor man?" said he;
"I heard in music you had skill:"
But Thou shalt answer, Lord, for me.

Then came brave Glory puffing by
In silks that whistled, who but he?
He scarce allow'd me half an eye:
But Thou shalt answer, Lord, for me.

Then came quick Wit and Conversation,
And he would needs a comfort be,
And, to be short, make an oration:
But Thou shalt answer, Lord, for me.

Yet when the hour of Thy design
To answer these fine things shall come,
Speak not at large, say, I am Thine;
And then they have their answer home.

George Herbert

Wednesday, March 24, 2010

The Finest Health Care Money Can Buy

. . . is not the health care that we will have as a result of the recently passed Health Care "Reform" Act. No, for the reason that the drafters of the legislation provided that, uh, certain persons would be exempt from its coverage.

And those "certain persons" are?

Try President Barack Obama and his family, for starters.

Next, Vice President Joe Biden and his family.

Next, Nancy Pelosi.

Next, Hillary Clinton (and Bill, and Chelsea).

And so on, down the line of presidential succession, through the members of the cabinet -- they are all made exempt from the bill's language. (Apparently, the thinking is that the President --along with the members of his family -- should not have to wait for an appointment to be scheduled, or have to receive any kind of clearance beforehand, should he need to have a wart removed, or an ingrown toenail fixed. And nor should the rest of them, or their families -- because after all , they are only a heartbeat away from the presidency, you know.)

But those aren't all the exemptions. No, there were some others exempted -- some really special others, who were in a position to know that they needed to be excluded.

Namely, the committee staffers in the House and Senate who drafted the "reform" legislation.

Remember when Barack Obama boasted that his new law would give people the same kind of coverage that Congress enjoyed? Well not, quite the same as he, Biden, Pelosi, Clinton and those staffers will enjoy.

Shades of Animal Farm! Read the full story here, and weep for your country. (H/T: Transfigurations.) [UPDATE: Another and fuller story is here -- it is beginning to look as though even more people have been exempted from the bill's terms.]

The only fitting epitaph for this legislation is the following (H/T: Still on Patrol):

Let me get this straight......they've passed a health care plan written by a committee whose chairman says he doesn't understand it, voted on by a Congress that hasn't read it but exempts themselves from it, to be signed by a president that also hasn't read it and who smokes, with funding administered by a treasury chief who didn't pay his taxes, all to be overseen by a surgeon general who is obese, and financed by a country that's broke.

Sunday, March 21, 2010

Episcopalians Are Becoming Indistinguishable from the Culture

Over at the wonderful statistical blog Floating Sheep, they have been conducting some very interesting analysis using the relative frequency of certain terms used on Google search engines around the world. For example, they took the four terms "Jesus", "Allah", "Buddha" and "Hindu", and plotted the relative frequency with which those four terms showed up in searches from any one particular location. Where one term was more prominent than the other three, they placed a colored dot for that term at that point on a world map. (You can read more about their analysis technique here and here.) The result was a map that looked like this (click to enlarge):

Note that the paucity of circles in Africa reflects only the lack of Internet presence there, and not a lack of religion as such. In contrast, however, note the dominance of Hinduism reflected in the dots of technologically advanced India -- here is a close-up map of the data for just Asia (again, click to enlarge):

The bloggers at Floating Sheep make these comments with regard to what can be seen on the above map:
The United Arab Emirates is a particularly interesting example. While officially a Muslim country, Indians make up the largest demographic presence and the dominance of references to Hindu (rather than Allah) is likely a reflection of this fact. Likewise the Malay Peninsula and the Indonesian archipelago (particularly the island of Java) illustrate the complexity of religious practice in this region. References to Buddha, Allah and Hindu are all in evidence on Java. Other examples include the predominately Buddhist nation of Sri Lanka with some Hindu areas to the North and the difference between Pakistan (more Allah) and India (more Hindu).
And here is a similar magnification of the map just for Europe, with the bloggers' comments below:

Looking at the [above] map of user-created religious references in Europe, it can been seen [that there] are a significant number of places (e.g. parts of Switzerland, Germany, the UK) in which there are more references to Buddha than any other religious terms. Likewise there are parts of Belgium and France with a dominant number of references to Allah, and parts of the UK with a dominant number of references to Hindu. (The cluster of Hindu references on the Estonian islands of Saaremaa and Hiiumaa is tied to a village named Hindu rather than religious practice). Also of note is the transition of religion as one moves eastward and southward with references to Allah becoming more prevalent in Muslim North Africa and Turkey. However, one can also see how this is far from monolithic with references to Jesus also sprinkled throughout this region as well as strong clusters in Israel/Palestine as well as within Armenia.
Having surveyed four world religions, the statisticians then began a closer examination of just Christianity itself. This time, the (admittedly somewhat arbitrary) search terms they used for the analysis were "Catholic," "Protestant," "Orthodox" and "Pentecostal." The resulting world map looks like this (click to enlarge):

One sees in this map how Catholics dominate the global scene of Christianity, including most of the United States, with Protestants predominating mainly in just the traditional areas that went with the Reformation. The anomaly of mostly-Catholic Brazil showing a significant number of Pentecostals and little Catholics is probably best explained by the fact that only English-language terms in Google searches were analyzed. ("Catholic" is spelled differently in English than it is in Portuguese and Spanish, while "Pentecostal" is not.)

The same analysis was broken out for a closer look at the branches of Christianity in Europe:

Here again, the arbitrary choice of search terms most likely skewed the visual presentation of data. Protestants in England refer to themselves as "Anglican", not as "Protestants", and so the map gives Catholics in England far more apparent prominence than they actually have.

Realizing that the same four search terms alone would not produce a satisfactory analysis of the data just from America, the researchers decided to broaden their categories significantly. They analyzed the American data from Google by using the following search terms: "Catholic", "Baptist", "Lutheran", "Methodist", "Orthodox", "Presbyterian", "Latter Day Saints", "Adventist", and then, just to test the validity of their technique, they added the two terms "Amish" and "Anglican" as well. (Why not "Unitarian", "United Church of Christ", or "Episcopal"? you ask. Well, wait and see.)

Here is the resulting map, which in many ways I find even more fascinating than the others:

Notice that the colors now are different: green no longer identifies Catholics, red is no longer the Orthodox, and blue is no longer Protestants (per se). Instead, on the above map, the Catholics are the light-blue circles, the Methodists are the red circles, and the Lutherans are the deeper-blue circles. It is the Baptists who are represented by the green circles -- and they show up mostly where one would expect, as do the Lutherans (deep blue) and the Mormons (bright lavender). Comparing this map to the one of America shown in the global map of Christianity above, where the use of just four categories gave an overwhelming visual advantage to the Catholics, shows the wisdom of the decision to break America down into many more sub-categories of Protestantism.

For example, look at how the Methodists (red) appear as a sort of buffer between the Baptists (green) to the south and the Lutherans and Catholics (deep and light blue, respectively) to the north. And under this technique, even the (light orange) Amish show up (they have computers?? -- apparently so, or else their computer-owning neighbors are just curious about them), in small pockets of Pennsylvania, Indiana and Iowa. Finally, look at what are shown to be the most religiously diverse States of all, with all kinds of colors: Washington, Oregon, California, and Colorado (the latter even having some Amish, as well).

And the Unitarians? The United Church of Christ? Well, let me quote the response of one of the researchers to that same question:
. . . we did do searches on Unitarian and UCC but did not include them in the final map as they had a lower number of hits overall in the U.S. and we were stretching the color palette with ten denominations. Apologies. When included you do see a cluster in New England.
But where are the Episcopalians? No longer is there any category of "Protestants" as such; instead there is this category called "Anglican" (shown in pale lavender). Would that pick up "Episcopalians"? Perish the thought -- "Anglican" is the term used by those groups who are breaking off from the Episcopal Church (USA) -- or who are realigning with the true Anglicans, depending on your point of view. (The term also would appear, of course, throughout Canada, in references to the Anglican Church of Canada -- and the map reflects this fact, showing pale lavender dots stretching all the way from Labrador to British Columbia.)

Notwithstanding this qualification, it is very interesting to discover the States of the United States where dots representing "Anglican" appear. By zooming in on the image, I find them (from East to West) associated with Maine, Vermont, New Hampshire, (western) Massachusetts -- and then, significantly: nothing, from the Hudson River all the way to the Pacific Coast.

But then I started thinking: if the search terms had included "Episcopal", what difference would that have made to the results as shown? (I even posed a question to that effect on the Floating Sheep blog, but they have not had time to answer yet.) And then I realized: I already know the answer to that question. For after religion became truly free in America -- that is, after the Revolutionary War -- Episcopalians have always been a minority sect, wherever they situate themselves, and in recent years, they have found a way to decline even more. Given that the criteria for a colored dot is that there be more references to a given term at that spot than to any of the others, it became evident that for the word "Episcopal" to predominate over words such as "Catholic" or "Baptist" or "Presbyterian", one would have to be examining just a few blocks within Washington, D.C. -- and perhaps even then, the dominance might not hold. At any rate, the scale of the map does not go down to the level, anywhere in America, at which the registration of the term "Episcopal" could be significant.

So I came away from this particular experience of the Internet a bit humbled, and a bit wiser for having thought my way though it. We Episcopalians, for all of our seemingly monumental strifes and controversies, supposedly requiring the expenditure of millions and millions of dollars on attorneys' fees, are really rather insignificant on the scale of global -- or even national -- religious experience. We are barely a blip on the religious radar screen, so to speak. And yet we are expending millions and millions of dollars as though it would make some difference in who we are (in fulfillment of "fiduciary duty", "obligations to earlier generations", and all those other magic buzzwords that come so easily to 815's lips, as they betray and undermine those very principles).

Look again at the reality of America as currently expressed on the Internet, and as seen through the above maps. Even had they been measured by their own descriptive term, Episcopalians would be completely insignificant in mapping the religious life of America. All the more so, then, do their various internal strifes and bickering pale into insignificance beside the reality of what religious people are actually professing (and confessing) in America.

And if what has been shown and said above does not yet convince you of the fact, let me try again, with one more of the maps available from Floating Sheep. For in this map, and using the same analytic techniques applied to data derived from Google searches, the researchers compared their search terms for the world's four greatest religions ("Jesus", "Buddha", "Hindu", and "Allah") with one additional search term. That additional term is identified this time by the purple dots (see the legend below), and notice particularly, please, the proportion of purple dots to blue dots (now representing, as in the first maps above, references to "Jesus") in the regions of America and Europe, compared to the rest of the world.

In short, if one wanted a graphic picture of how the current culture stacks up against traditional religions, one has only to look at this map. One should focus in particular on where the map shows the current culture as exercising the strongest sway: in America and Europe (as opposed to Asia, Africa and South America). Compared to the purple areas covered in both of those regions, the remaining blue areas are completely insignificant -- and look particularly at the areas of the East Coast and the West Coast of America. Now imagine how well the purple dots as shown in the United States above would coincide with any representation that could be gleaned of the churches in those areas whose agenda coincides with that of the culture shown at that point (as represented by the one factor shown by the purple dots), i.e., such as the Episcopal Church (USA).

Ladies and gentlemen, I submit that the above map, considered with the factors as stated, and as we ourselves know them to be, is an accurate depiction of the degree to which the Episcopal Church (USA) has managed to make itself indistinguishable from the prevalent culture (as identified with the Google search term "sex") in modern America. The above map, in other words, shows far more than its creators intended it to represent. The purple dots represent that current culture, to be sure; but buried within them, and completely submerged by that culture, are all the dots that could ever represent the Episcopal Church (USA) on the same map.

Nothing more need be said. In the words of our Lord (Luke 22:38), "It is enough." When a church vanishes into the culture, it ceases to be a church.

Friday, March 19, 2010

Friday TED Talk: Dan Barber's Love Affair with a Fish

Dan Barber is a chef -- a very dedicated chef, who goes behind the food that he cooks, and investigates its sources. He investigates the sources because he wants to understand what makes a particular food taste good. In the course of his investigations, Dan Barber describes how he came to fall in love with a fish that was farmed in southern Spain. This fish tasted so incredible that it still surpassed every normal restaurant "fish" he had previously prepared -- even when it had been overcooked!

In this TED talk (from this past summer at Oxford), Dan Barber describes how he learned just what made the fish taste so good. In the process, he relearns a lesson as old as agriculture itself: food tastes best when it is produced as a sustainable, natural byproduct of the local environment. Modern goals to feed the world through increased yields have it all backward, and end up requiring far more input (in the form of feed, fertilizer and resources) than is produced for consumption, as output. That is a recipe that leads to nowhere. Far better to let the local ecosystem, through its own feedback, tell a farmer what works, and what does not. Listen as Dan Barber explains the lessons he learned from his love affairs with two very different fish:

Dan Barber is the owner of and chef for two restaurants in New York, using produce grown from his Blue Hill Farm, in Connecticut. Here is a link to his homepage, from which you can derive much more information, and here is a page with a brief bio and other links, including one to this fascinating Q & A session that grew out of his TED talk. Watch his talk in high-res video (mp4) from this link; download Dan's talk in that and other formats from this link.

Thursday, March 18, 2010

Runaway Wagon

The latest update of the docket sheet in the United States Supreme Court in the Waccamaw case reflects that, right on schedule and as predicted, "ECUSA" (whatever entity of that name is represented by those who filed the brief) has filed a brief in support of the dissident parishioners who seek review by the Supreme Court of last September's decision by the Supreme Court of South Carolina. The brief was filed on March 15, which was the last possible day for filing. (A response to the brief by All Saints Parish, Waccamaw, as well as by any other parties in the case, is due by April 23.)

The brief itself is minimal, and makes just a one-paragraph argument. Citing the decisions from California, New York, Pennsylvania and North Carolina that have upheld the trust declared by the Dennis Canon, as well as some earlier decisions from other jurisdictions applying the theory of implied trusts (now disused, as I covered in this post), and even some of the decisions from lower courts which are currently on appeal, ECUSA's three attorneys (David Booth Beers, Mary Kostel and Heather Anderson -- who has left Goodwin Procter and is on her own) argue simply that those decisions were right and South Carolina's was contrary to them, and hence wrong. The Statute of Frauds, which predates the Dennis Canon by more than 300 years, is not mentioned once, and there is zero analysis of the rationale given by the South Carolina Supreme Court for its decision.

In short, the brief serves as a mere placeholder for ECUSA, to keep its options open in the unlikely event that four justices of the Supreme Court vote to grant review. The lack of any serious argument is a signal that ECUSA's attorneys understand perfectly well that the chances of that happening are minimal.

What is even more significant than the news that ECUSA filed a brief in support of the petition is that the Diocese of South Carolina did not. As I analyzed that possibility in this previous post, the case would now be fraught with legal complexities as to who can properly argue against the lower court's decision, should the Court grant the petition for review. Fortunately, however, given that the Court has denied review without comment in all the other church cases it has recently been asked to look at, the odds are more than 99-1 that it will deny review here, as well.

Denial of review will not remove the current bone of contention between the Presiding Bishop and the Bishop of South Carolina, the Rt. Rev. Mark Lawrence. She and her Chancellor will undoubtedly see the Diocese's refusal to join in support of the petition as a betrayal of the dissident parishioners at Waccamaw. No doubt the failure to join (even though, technically speaking, it would not be the Bishop's decision alone to make, but would require the consent of the diocesan standing committee) will be added to the growing dossier of evidence to be submitted by Chancellor Beers to the Title IV Review Committee in the near future, as grounds for first the inhibition and then the deposition of Bishop Lawrence without a trial, for alleged "abandonment of the Communion of this Church." (Bishop Lawrence's failure to attend the upcoming meeting of the House of Bishops that starts in Texas at the end of this week will of course be regarded as yet another such piece of evidence.)

[UPDATE 03/18/2010: Having assumed, from Bishop Lawrence's address to his Diocese last August about "withdrawing from all bodies of governance of TEC that have assented to actions contrary to Holy Scripture", that the language meant he would also not be attending future sessions of the House of Bishops, I am pleased this once to report that I stand corrected: over at Titus 1:9, Father Dow Sanderson confirms that Bishop Lawrence IS attending the session starting tomorrow (his birthday!) at Camp Allen in Texas. That should make it all the more difficult for the Presiding Bishop to embark on "Plan A." As for her "Plan B", were I advising the good Bishop of South Carolina, I would see to it that he addresses no letters or statements to the Presiding Bishop -- even ones that only ask questions.]

Should that dastardly step be taken (and who today has any doubt that the current Presiding Bishop is fully capable of it?), the Church will have come full circle from the time when it first adopted a canon allowing a bishop to be deposed for abandonment. The occasion was General Convention 1853, and the Canon was adopted as new Canon 1. As I explained in this previous post, adoption of the Canon was made necessary by the departure of Bishop Ives of North Carolina to join the Roman Catholic Church.

Thus the "abandonment canon" (currently Canon IV.9, for bishops) was designed for the case when a bishop (or lower clergy, in the case of Canon IV.10) resigned his position in PECUSA to become a communicant in a church not in communion with PECUSA. There is no trial provided under the abandonment canons, because presumably there is no need for one: the departure for another church is already a fait accompli, and the departing bishop or clergy does not contest the fact of his departure.

If Canon IV.9 were now to be misused to "depose" a sitting bishop of the Church, then the only reason to conceive of doing so would be to avoid the necessity of a full-blown trial, with the need for a presentment that would set out in detail exact violations of specific canons of the Church -- dates, times and full circumstances -- which would provide sufficient grounds for deposition. Under Canon IV.9, the facts constituting "abandonment" are whatever the Title IV Review Committee and the Presiding Bishop decide they are. There is no appeal, except to the Presiding Bishop herself -- the kangaroo-court procedure was designed, remember, to apply to bishops and clergy who had already left the Church, and had no intention of returning.

And it is precisely that one-way procedure which will draw our current Presiding Bishop to its misuse. She has shown no restraint whatsoever in her ability to defy the express language of this and other Canons; and she will exercise no restraint in defiling the Canon, either, by applying it to a sitting bishop who is entitled to a full presentment and trial before his peers.

Watch what happens at the upcoming House of Bishops meeting, or perhaps shortly after it concludes. If the Presiding Bishop follows the same pattern as she did with Bishop Duncan, then she will probably take an informal poll, or "sounding", among her colleagues as to whether they will entertain a resolution to depose Bishop Lawrence at their next meeting in September. Neither the poll nor its results will remain secret; since she has no one to check her, the Presiding Bishop is very open about her machinations. But machinations they remain, nonetheless, and to have to use the word in connection with the word "bishop" says all that need be said about what is destroying ECUSA from within. ("Due process" -- or the idea that one does not taint the jury in advance -- is a concept that is as alien to the Chief Kaitiff as it is to Fidel Castro, Hugo Chavez, or any of a number of similarly inspiring and glorious leaders.)

Having improperly and unethically determined in advance (following on the heels of her announcement of the confirmation of a new addition to the membership of the House, the Rev. Canon Mary Glasspool) that she has support from at least a majority of diocesans -- and entirely dispensing with the need for approval by a majority of the full House, including all bishops who have resigned their earlier jurisdictions -- the Presiding Bishop will set yet one more egregious precedent in her most egregious career. She will deploy Canon IV.9 to "depose" a sitting bishop who, far from abandoning ECUSA, remains doggedly within it, and whose only "fault" -- no fault at all, but in fact a trait much to be desired in a bishop -- is being unwilling to sacrifice the welfare of his Diocese to the megalomaniacial and scorched-earth policies of the Church's Presiding Bishop (and, more accurately, its Chief Kaitiff).

The combination of the confirmation of Bishop Glasspool to the episcopate, and the illegal and unwarranted removal from it of Bishop Lawrence, may well touch off fireworks in the rest of the Anglican Communion. The other provinces of the Communion will announce their refusal to recognize the validity of either act, and (just as they did with Bishop Duncan) will continue to regard Bishop Lawrence and his Diocese as one of their own. At that point, the Presiding Bishop and her all-too-willing tools in the House of Bishops and the Diocese of South Carolina will have managed to bring about a self-fulfilling prophecy: they will leave Bishop Lawrence with no alternative but to organize his Diocese in realignment with another branch of the Anglican Communion, and we will have yet one more Diocese that has been forced to leave the Church. And ECUSA will at that point have burned most of the bridges that tied it to the rest of the Anglican Communion.

After such an arbitrary and cynical act, further consideration of the proposed Covenant by ECUSA would have to be regarded as a sick joke. Pressure will then mount on individual Dioceses to adopt the Covenant on their own (in addition to South Carolina, Dallas, Central Florida and Western Louisiana have already done so), and on the Archbishop of Canterbury to recognize those adopting Dioceses as still in communion with the See of Canterbury. The Presiding Bishop will thunder and threaten with deposition all diocesans who lead their dioceses to pass resolutions approving the Covenant before General Convention meets in 2012.

And where will we be then? In a maelstrom of counter-accusation and self-destruction. For as I explained carefully in this post, it will be necessary in any event for the individual dioceses to indicate their approvals of the Covenant before General Convention could take any final action. Unless ECUSA engages in a complete charade (which should not fool the rest of the Communion), and pretends to "ratify" the Covenant through a simple up-or-down resolution enacted at General Convention 2012, the only way for ECUSA properly to sign on to the Covenant would be through a Constitutional amendment. (I think that 815 already recognizes this fact, because they have referred to the constraint that it would take two cycles of General Convention -- until 2015 -- for the Covenant to be finally approved.) The Constitution (Art. XII) requires that all amendments be proposed by one General Convention, and then be
sent to the Secretary of the Convention of every Diocese, to be made known to the Diocesan Convention at its next meeting, and be adopted by the General Convention at its next succeeding regular meeting by a majority of all Bishops, excluding retired Bishops not present, of the whole number of Bishops entitled to vote in the House of Bishops, and by an affirmative vote by orders in the House of Deputies in accordance with Article I, Section 5, except that concurrence by the orders shall require the affirmative vote in each order by a majority of the Dioceses entitled to representation in the House of Deputies.
Please note in passing that the drafters of revisions to the Constitution and Canons knew perfectly well how to use language so as to exclude retired bishops not present from being counted in specifying that a measure be enacted by "a majority . . . of the whole number of Bishops entitled to vote in the House of Bishops . . .". The language of Canon IV.9 (see the last sentence) has no such wording about "excluding retired Bishops not present". Thus the Constitution itself demonstrates how the Presiding Bishop is trampling on the language of the Canon when she declares a "deposition" to have carried with the vote of less than a majority "of the whole number of Bishops entitled to vote," as the Canon expressly requires.

This, then will be the Catch-22 into which the Presiding Bishop will lead the Church and the Anglican Communion, if her ego leads her to try to "depose" Bishop Lawrence for "abandonment":

1. A godly Bishop who would lead his Diocese in giving its approval to the Covenant, as is necessary for its adoption by ECUSA, will have been declared "deposed" by a canonically insufficient vote in the House of Bishops.

2. A Diocese which declares itself unalterably opposed to the acts taken by ECUSA in defiance of the Windsor Report will be forced to withdraw from the Church by the "deposition" of its Bishop, which the majority of provinces in the Anglican Communion will refuse to recognize. Meanwhile any Diocese which indicates it wants to approve the Covenant before General Convention 2012 can act on it will be threatened with the "deposition" of its diocesan.

3. A Potemkin standing committee organized by the Presiding Bishop will announce the holding of a "special convention" to approve a "provisional bishop" for what it declares will be the "Episcopal Diocese of South Carolina."

4. As soon as he or she is declared elected, the "provisional bishop" will file suit against Bishop Lawrence and his Diocese, seeking all of its money and property. But given the recent decision by the South Carolina Supreme Court against indirect Church trusts (plus the fact that the Dennis Canon does not try to reach the property of a diocese), the suit will go nowhere in the South Carolina courts. (That will not stop ECUSA from devoting hundreds of thousands of dollars to it.)

5. Like his former colleague Archbishop Robert Duncan, Bishop Lawrence will be recognized by other Bishops of the Anglican Communion as a Bishop in good standing with the rest of the Communion. Those Bishops may even drive the point home, as the Bishop of Winchester, the Rt. Rev. Michael Scott-Joynt, has done by inviting Archbishop Duncan to preach and to confirm in his Diocese.

6. Why will that drive the point home? Because Archbishop Duncan will be able to do so by reason of permission having been granted to the Bishop of Winchester by the Archbishop of Canterbury to make the invitation. And with that permission, Archbishop Duncan (and Bishop Lawrence, if he is invited as well) will be able to do what the Most Reverend Katharine Jefferts Schori cannot do, even though ECUSA regards her as a bishop (and its primate). No woman may currently function as a bishop within the Church of England -- no, not even the Most Rev. Katharine Jefferts Schori.

We will then have the spectacle of how ECUSA, by plunging recklessly ahead with its "social justice" agenda without the consensus of the remainder of the Anglican Communion, and by deposing its orthodox bishops and clergy without justification or mercy, will have managed to cut itself off from the Communion by those very actions. Its ridiculous and uncanonical "depositions" will be shown up as the Stalinesque purges that they are. And its childish demand that all of its elected and confirmed bishops receive equal recognition throughout the Communion will be shown up as the dysfunctional and selfish swaggering which it is.

At that point, as I say, further actions by ECUSA in going through the motions of considering the Covenant, if they occur at all, will devolve into a surreal pantomime. In any event, the disunity of ECUSA will be evident for all to see. The House of Bishops will be too spineless to pull the Presiding Bishop back from the looming disaster, and too divided to be able to agree on a common plan forward in her stead. There will be no neutral or middle ground; it will be like being in the middle of the Reign of Terror during the French Revolution. As far as the Presiding Bishop will be concerned, one will be "either with her, or against her."

This is where the current "leadership" of ECUSA is headed -- they have become a runaway wagon. Events may not unfold precisely according to the above scenario, but unfold they will. And there is no outcome I can see which bodes well for the future of ECUSA, or perhaps even for the Communion as we have known it -- so long as the Church gives Katharine Jefferts Schori free rein in taking it over the cliff.