The 2011 Highlights in Church Legal News

This blog's principal focus is tracking the vicissitudes and adventures of the Episcopal Church (USA) in the secular courts, as it engages in an unprecedented campaign of "intimidation by lawsuit" against the dioceses and parishes who have reached the limits of their tolerance with the national Church's leadership in general, and with its individual bishops in particular. For -- make no mistake -- it is the collected bishops of the Episcopal Church who are enabling the Presiding Bishop and her personal Chancellor to bring more than seventy-five separate lawsuits across the country, each of which seeks to seize real and personal property from dissenting congregations and dioceses who have dared to disaffiliate from the national Church. The latest figures available online run only through July, but after just those seven months, the Church's budget item for litigation was already more than two-thirds spent, and once again seems certain to be exceeded significantly by the time year-end figures are released.

Because ECUSA's House of Bishops chooses not to rein in its presiding officer, and because not even General Convention will place real or effective limits on her budget for lawsuits, the guiding words for the denomination have been replaced sub silentio: it is no longer "the Episcopal Church welcomes you," but rather "the Episcopal Church sues you" -- if you dare to disagree with its Presiding Bishop.

She takes it as her personal mission to fight over every Episcopal altar cloth, chalice, prayer book, hymnal, and pulpit, as well as every square inch of real estate and every penny contributed by faithful parishioners. She does so on the theory that as the Church's main "fiduciary", she owes it to Episcopalians everywhere to see that no dastardly dissenter keeps one scrap of "Episcopal Church property" without a court decision allowing them to do so.

This officially pugnacious policy, pursued relentlessly at the highest level as long as the House of Bishops continues to stand by and do nothing to curb it, has led to an unholy, and decidedly un-Christian, collection of legal precedents in various state and federal courts. If anything may be concluded from their pitiful attempts to wrestle with (or, more frequently, studiously to ignore) the canonical infelicities of the Dennis Canon, and similarly ill-conceived and crudely expressed attempts by the national Church to keep dissenters in line, it is that the secular courts are largely unsuited to the tasks which ECUSA's litigation program has put before them.

First of all, having mistakenly convinced themselves during "the Enlightenment" that civil courts have absolutely no ties to their predecessors in the medieval Church, their modern counterparts have proved themselves spectacularly ill-equipped to decide church property cases in accordance with actual "neutral principles of law." The paradox is that the approach using "neutral principles" is based wholly in the secular reasoning of the Enlightenment, but in church cases those same "enlightened" courts largely decline to honor such principles, and choose instead to defer to phony notions of religious authority and hierarchy. There are some notable exceptions now and then, but those exceptions largely serve to prove the wisdom of St. Paul's admonition to Christians to settle their disputes outside of the secular courts.

Herewith, then, from a specifically canonical point of view, follows a chronological summary of the ups and downs of the Episcopal Church (USA) in 2011, with links to the posts that discuss the desultory details:

January - Judge Chupp grants summary judgment to ECUSA in the Ft. Worth litigation. He essentially punts the thorny issues to the higher courts, by adopting holus bolus ECUSA's ancient view of Texas law in the nineteenth century favoring so-called "hierarchical" churches, and by avoiding any analysis of the case under truly neutral principles of property law applicable to all other Texas landowners.

February - In Pennsylvania's Commonwealth Court, the Anglican Diocese of Pittsburgh loses its appeal of Judge James's nonsensical decision below, due to the appellate judges' studied refusal to let the disturbing facts perturb them in the slightest. One of the Diocese's parishes, St. Philip's in Moon Township, settles separately with the victors by agreeing to stay away from ACNA for five years.

March - The new Episcopal Bishop of San Joaquin, the Rt. Rev. Chester Talton, freely admits in an interview that the object of all the lawsuits recently filed by his predecessor is to get properties to sell so loans from ECUSA to pay for litigation expenses can be repaid. Never mind that the properties in all likelihood will fetch far less than what has to be spent to win them; it's the principle of the thing, don't you see?

April - the Episcopal Diocese of Rio Grande, having evicted the congregation of St. Francis-on-the-Hill (El Paso) from its property, now sues their rector and vestry for all moneys they collected from their parishioners while the earlier litigation was going on. The Diocese also seeks punitive damages against the defendants for their outrageous effrontery in spending the parish pledges for non-Episcopal purposes, such as utilities, church bulletins, soup kitchens, and the like.

May - the California Supreme Court reverses the judgment against St. James, Newport Beach which the Court of Appeal, in an unpublished decision, had given to ECUSA and the Diocese of Los Angeles at their request, because they read the Supreme Court's earlier decision to say that churches which try to leave ECUSA's clutches should not be given even one day in court to plead their case, and deserve to have their property taken from them on the spot. The Supreme Court in effect said: "We were just kidding -- can't you Episcopalians tell the difference between a joke and a legal opinion?"

June - News emerges that when Katharine Jefferts Schori was the Bishop of Nevada, she received a former Catholic monk, an admitted molester of young males, as an Episcopal priest. Of course, she placed him under restrictions meant to ensure that he could not be alone with young men, but apparently she forgot to tell anyone about them, including the rector of the church which hired him to direct its choir.

July - The new Title IV Disciplinary Canons, which were not closely examined or debated until after General Convention approved them, become effective in all church Dioceses except South Carolina, which refuses to recognize them. The Diocese points out numerous ways in which they violate the Church's Constitution -- not least because they confer metropolitical powers upon the Presiding Bishop -- but all the rest of the frogs in the Episcopal soup just lie back, relax, and bask in the steadily increasing warmth that surrounds them.

August - At the request of the Diocese of Pennsylvania, a trial court judge orders the removal of the pastor of the Church of the Good Shepherd in Rosemont, outside of Philadephia. The rector, David Moyer, had in the meantime become a bishop in the Traditional Anglican Communion, and now appears to be headed for the new Roman Catholic ordinariate in America.

September - The Connecticut Supreme Court graces the legal world with another poorly written opinion blindly upholding the Dennis Canon's unilaterally created trust under so-called "neutral principles of law." This time, the victim of such misguided reasoning is Bishop Seabury Church, in Groton, but it may appeal to the U. S. Supreme Court if the churches in Georgia do so also (see December entry, below).

October - The new Disciplinary Board for Bishops (under the new Title IV Canons -- see the entry for July above) makes a big splash, and provokes a Church constitutional crisis, when they inform Bishop Mark Lawrence of South Carolina that they are investigating charges made against him by anonymous dissidents in his Diocese for not being sufficiently submissive to the Presiding Bishop's new regime, and for otherwise "abandoning the communion of [ECUSA]." Bishop Lawrence and his Diocese do not recognize either the Board or the new Title IV Canons under which it is operating. After some initially clumsy fumbles in the public relations department, the Board finally announces that it could not muster a majority in favor of certifying the charges, and the crisis evaporates (for now).

November - On the same day, the Georgia Supreme Court decides two major church property cases. In the first, it awards to the Episcopal Diocese of Georgia the property of Christ Church in Savannah, Georgia's oldest Anglican church, which predates the founding of ECUSA itself. In the second decision,  the Court awards the property of Timberridge Presbytery, near Atlanta, to PCUSA. The same Justice -- a prominent member of a large ECUSA parish in Atlanta -- writes the opinions in both cases, without recusing himself from the first one on account of his affiliation. He justifies his upholding of the Dennis Canon against Christ Church by repeatedly citing his tortured decision that rejects Timberridge's attempt to remove itself from the shackles of a similar provision in PCUSA's Book of Order.

December - The Supreme Court of Texas agrees to hear the appeal of the Church of the Good Shepherd in San Angelo from a lower court decision which made mincemeat of "neutral principles of law." This bodes well for Bishop Iker and his Diocese of Fort Worth, which has a similar request for review of Judge Chupp's decision (see January entry above) pending before Texas' highest court. Meanwhile, in Georgia, Timberridge Presbytery announces it will petition the U. S. Supreme Court to review the Georgia Supreme Court's November decision against it (see entry above). There is a possibility that Christ Church in Savannah, whose congregation holds its last service there, will also request review; and that may encourage a third request from Bishop Seabury parish, in Connecticut (see September entry above). Finally, the year closes with an intelligent trial court decision from Illinois which refuses to rule, as a matter of law, that ECUSA is "hierarchical" with respect to its member dioceses.

Happy New Year to one and all! Your Curmudgeon is praying that 2012 will bring good news for all but Jefferts-Schorians on the legal fronts in Fort Worth, San Joaquin and Quincy, and with regard to any petitions filed with the United States Supreme Court.

The Marvel and Mystery of Christmas

Ach, Herr, du Schöpfer aller Ding

Ach Herr, du Schöpfer aller Ding,

Oh Lord, Creator of us all,

Wie bist du worden so gering,

How art Thou now become so small,

Dass du da liegst auf dürrem Gras,

That there Thou liest on hard straw bed,

Davon ein Rind und Esel ass?

From which both cow and donkey fed?

(Music: Heinrich Schütz, 1585-1672 [SWV 450]; Text: Martin Luther, 1483-1546 [Stanza 9 of Vom Himmel hoch da komm' ich her, 1536]; Performance: Hendricks Chapel Choir, December 1978; Art: Fra Angelico, The Nativity, 1439-1443.)

His Holiness Pope Benedict XVI reminds us of a possible answer to Martin Luther's question:

The medieval theologian William of Saint Thierry once said that God – from the time of Adam – saw that his grandeur provoked resistance in man, that we felt limited in our own being and threatened in our freedom. Therefore God chose a new way. He became a child. He made himself dependent and weak, in need of our love. Now – this God who has become a child says to us – you can no longer fear me, you can only love me.

(H/T: the Rev. Canon Kendall Harmon, Titus19)

Physical Evidence for the Virgin Birth of Jesus

Note: When I ran this post last year on Christmas Eve, it got buried in the holiday busyness, and so this year I am running it a little earlier, especially in light of Al Mohler's piece (also a re-run for the season) on the theology of the Virgin Birth -- which I heartily commend to you, as well. The stunning discovery related in this article still has not received the wider attention it deserves. As always, the point is not to have science displace faith, but instead to have an informed faith, which the facts known to science, such as they are, do not threaten or disturb. (And as an unexpected dividend, what is related here allows us to become aware of how amazingly well God's revelations to us so long ago withstand the test of time!)

* * *

A little over three years ago I put up this post to discuss Frank Tipler's argument, using available scientific evidence, for the Virgin Birth of Jesus Christ (from chapter VII of his book, The Physics of Christianity). This Christmas, I want to examine in greater detail the evidence he presents -- in particular, the genetic evidence derived from DNA analysis of blood samples taken from the Shroud of Turin and the Sudarium of Oviedo -- in the hopes that someone more familiar with this branch of molecular biology might pick it up, and either comment on it, take it further, or even (if possible) refute it.

[UPDATE 12/25/2010: A word to my readers: I am well aware of the scorn and ridicule that has been heaped upon Frank Tipler and his theories (here is just one such example, in which the venerable but now-deceased Martin Gardner scoffed at Tipler's account without, however, bothering to assess the genetic evidence). But it is far easier to denigrate than to engage. As you read the post that follows, I would ask that you keep the bigger picture in mind: We have two ancient artefacts, hundreds and hundreds of years old (if not thousands), each with its own independent history -- yet each of which has matching AB-type bloodstains, the source of which tradition assigns to the same person, who was unquestionably of the male gender. How does it turn out, after a scientific analysis possible only in the late twentieth century, that the stains on both cloths lack a key genetic identifier for maleness? That is the question I wish responsible people would address.]

First, some background: the Shroud of Turin, of course, is the name given to what traditionally has been considered as the linen burial cloth in which, as the Gospels all report, the women who prepared Jesus for burial wrapped His body. Its provenance and history are greatly in dispute, a dispute which was heightened by a radiocarbon analysis of a portion of the cloth done in 1988, which dated its origin to no earlier than the 13th century. However, evidence since that well-publicized test has accumulated to cast those results into doubt, and to validate the Shroud's origin as genuine (see the details discussed in this earlier post, and read more about the latest research on the Shroud's image at this link).

The Sudarium of Oviedo is the name given to the cloth which tradition assigns as the face cloth placed over Jesus' head when he was taken down from the cross, and which was found in the tomb, rolled up and separate from the other linens, after His resurrection (Jn 20:7). (It is not to be confused with the Veil of Veronica, another relic of the crucifixion, which was originally kept at St. Peter's, but is now at the Abbey of Monoppello, high in the Apennines.) The Sudarium's history is entirely different from that of the Shroud's. Its location in Oviedo has been documented since the eighth century; it was in Toledo for about eighty years before that.

Aged, brown blood stains have been described on both cloths for centuries, but actually documented to be human blood (type AB) only with the advanced analysis techniques of the twentieth century. And a recent, in-depth study of the Sudarium done in 1998 (the first ever performed, in contrast to the numerous advanced tests on the Shroud) confirms that the blood stains on each cloth match in placement, blood type, and pattern of spread, along with numerous other correspondences (such as pollen indigenous to Jerusalem) between the two cloths. If the two cloths at one time covered the head, the face and (for the Shroud) the body of the same person, then obviously the 1988 radiocarbon dating of the Shroud was thrown off due to some error in the sampling process.

If a match between the blood stains could be established by forensic analysis of their surviving DNA, then one could feel confident (a) of the Shroud's having a much greater age, and (b) of the absence of fraud or artifice in the creation of the stains and images on each cloth. And this is where Frank Tipler's book referenced above proved most interesting. For in the course of his investigations, he learned that a highly qualified team of researchers from Genoa, Italy -- including two molecular biologists who had invented the standard test for sex determination, had performed DNA analysis on the stains of both the Shroud and the Sudarium in 1995.

However, their results had been published not in a standard scientific journal, available easily to all, but only in an obscure journal in Italian devoted entirely to studies about the Shroud. As Prof. Tipler noted:

Furthermore, only the raw data were published. That is, the Genoa team published black-and-white Xerox copies of the computer output of the DNA analyzer. This is never, never done. Always, the data are presented in a neat table or figure, and they are accompanied by a discussion of their significance. The Genoa team made no effort to interpret their data. . . .

Prof. Tipler, in contrast, had no reluctance in interpreting the data -- that is, once it was arranged in standard tabular form, according to the number of base pairs in the amplicons on the agarose gel which resulted from a polymerase chain reaction (PCR) involving segments of the sample DNA. Now, let me provide a little more background, so those unfamiliar with the procedures of forensic DNA analysis can make sense of that last sentence.

The technique of PCR was developed in 1983 by Kary Mullis, whose TED talk I featured earlier. The idea simply popped into his head one night as he was driving to his vacation cabin in northern California; he tried it, and the results surpassed all his expectations. The technique has been the foundation stone of DNA analysis ever since. Essentially, what it does, given a very small sample of DNA to begin with, is to make millions or even billions of copies of the sample in a "chain reaction" taking about three hours, so that there is enough ending material to analyze with standard laboratory techniques, including chromatography and gel electrophoresis. (Here is an excellent illustrated guide to the whole process.)

The way it works is by first heating the DNA samples to break the two strands of the double helix apart (this is called "DNA denaturation", or "DNA melting"). Once the strands have been separated, they are cooled down and put into a mix of DNA primers (short strands of DNA chosen for their complementarity with the sample being tested) and DNA polymerase -- a magic enzyme which, given a primer, goes to work and replicates the strands of the samples exactly. By successive heatings and coolings, more and more copies of the sample are created, separated into single strands, cooled, and then duplicated again, and again, and again, with the number of DNA copies roughly doubling each time -- hence the "chain reaction."

In running a PCR analysis on their samples from the Shroud and the Sudarion, the Italian researchers included a set of highly particular DNA primers generated from the gene for amelogenin, which plays a role in the building of tooth enamel. This gene appears on both the X- and Y-chromosomes in humans, but in distinctive forms: the allele (gene variant) on the X-chromosome is six base-pairs shorter than the allele on the Y-chromosome. ("Base pairs" are the pairings between the four fundamental nucleotides, or building blocks, of DNA.) And this very slight difference can be used to determine whether any given DNA sample comes from a male or a female, as a result. (Here is a link to a diagram of the genetic code for amelogenin, which shows precisely where the missing base pairs on the X-version differ from the Y-version; note that there are other slight differences between their codes, as well.)

Because of the difference in their respective lengths, the two alleles will show up at different places when the analysis is run on the results of the PCR amplifications (these are the amplicons I mentioned earlier) of the original sample. (In order to understand fully how the analysis produces its results, I highly recommend that those who have the time run through this interactive simulation of the process of gel electrophoresis in the lab.)

The results from female DNA will have only one band of the shorter base-pair length, while the results from male DNA will have two bands, one of the shorter, X-chromosome length, and the other from the longer, Y-chromosome variant of amelogenin. This was the DNA test for gender which was developed by two expert members of the 1995 Italian research team, as mentioned earlier.

The Italian team knew what they were doing. They took steps to eliminate "DNA noise" from contamination of the samples which might have built up from handling of the cloths by various people over the years. Even so, they apparently could not trust the results they ended up with, after all their careful analysis: the genetic signature of both samples, the one from the Shroud, the other from the Sudarium, showed only one band -- for the shorter (106 base-pairs), X-chromosome variant of amelogenin. (Depending on the length of the gene segment used as a primer for the PCR analysis, the X-allele of amelogenin will have either 106, or 212, base pairs, or "bp" -- see the diagram again for a depiction of the different segments used as primers in the test. The extra six base pairs for the Y-allele of amelogenin results in either 112 bp or 224 bp, depending again on the primer that is used for the test.)

With the foregoing as background, we are now ready to appreciate the results of the analysis by the Italian team, as reproduced by Professor Tipler in his book. Here are the results in tabular form, as he arranged them -- according to increasing base-pair length (click on the image to enlarge):

Professor Tipler does not elaborate on this tabular layout, and I have had to deduce, from my earlier experiences with forensic DNA analysis in court, just what the individual columns show. (If I err in any respect in what follows, I trust a knowledgeable commentator will correct me.) The left-hand column shows the index-mark, varying by time of retention, where the band in question appears in the results; in general, a higher index number means a longer retention time, because the segments with the greatest number of base pairs move slowest through the gel. The second column shows the average number of base pairs in that particular band, to a specified tolerance determined by the analysis software. The third column shows the height (intensity) of the band in question, which is proportionate to the amount of that particular allele in the amplified test sample; the total area of the band given in the fourth column also varies proportionately with the intensity. Finally, the number in the fifth column relates to the particular scan of the data run by the computer analyzer.

It is the numbers in the second column with which we are most interested. Both the analysis of the Shroud sample and of the Sudarium sample show results within the range expected for the 106 bp allele of amelogenin: 107.28 for the Shroud, and 105.27 for the Sudarium. (The variation of 1 in either direction from the specific bp number is due to a phenomenon called stutter which can occur during the PCR process -- see the article linked earlier for a more detailed explanation.) But there are no corresponding bands appearing in the 112 bp (+/- 1) range of the data.

This would ordinarily be the genetic signature of a female, with two X-chromosomes, and undoubtedly accounts in part for the reluctance of the Italian researchers to explain or comment on their results. With all of the precautions they took against contamination of the blood samples, how could the Y-allele of amelogenin have completely vanished from both samples, independently, over the years?

As Professor Tipler is at pains to point out, however, the presence of a single X-allele band, and the absence of any Y-allele band, is also consistent with another conclusion: that the person whose blood stained both cloths was that most rare of humans, an XX-male:

I propose that Jesus was a special type of XX male, a type that is quite rare in humans but extensively studied.¹⁷ Approximately 1 out of every 20,000 human males is an XX male. Such males are normal in behavior and intelligence but have smaller teeth, shorter stature, and smaller testes than normal males. They are usually identified as XX males because they cannot have children and ask doctors to cure the infertility. Normal males are XY, but there are only twenty-eight genes on the Y chromosome, as opposed to thousands on the X chromosome. Of these twenty-eight genes, fifteen are unique to the Y chromosome and thirteen have counterparts on the X chromosome.¹⁸ The genes with counterparts on both the X and the Y chromosomes are called homologous genes. An XX male results when a single key gene for maleness on the Y chromosome (the SRY gene) is inserted into an X chromosome. One possibility is that all (or at least many) of the Y chromosome genes were inserted into one of Mary's X chromosomes and that, in her, one of the standard mechanisms used to tum off genes was active on these inserted Y genes. (There is an RNA process that can tum off an entire X chromosome. This is the most elegant turnoff mechanism.) Jesus would then have resulted when one of Mary's egg cells started to divide before it became haploid and with the Y genes activated (and, of course, with the extra X genes deactivated).

_______________

¹⁷ Chapelle, Albert de la. 1981. "The Etiology of Maleness in XX Men." Human Genetics 58: 105-116; Guellean, Georges. et al. 1984. "Human XX Males with Y Single-Copy DNA Fragments." Nature 307: 172-73; Page, David C., et al. 1985. "Chromosome-Specific DNA in Related Human XX Males." Nature 315: 224-26; Andersson. Mea. et al. 1986. "Chromosome Y-Specific DNA Is Transferred to the Short Arm of the X Chromosome in Human XX Males." Science 233:786-88; Petit, Christine, et al. 1987. "An Abnormal Terminal X -Y Interchange Accounts for Most but Not All Cases of Human XX Maleness." Cell 49:595-602; Chapelle, Albert de la, et al. 1988. "Invited Editorial: The Complicated Issue of Human Sex Determination." American Journal of Human Genetics 43:1-3.

¹⁸ Jegalian, Karin, and Bruce T. Lahn. 2001. "Why the Y Is So Weird." Scientific American, February, 56-61.

Because the full-body image we have from the shroud does not match the parameter of the usual type of XX-male (the 1-in-20,000 example mentioned in the text, in which only the SRY gene is inserted in the X-chromosome, with a resulting smaller stature than other males), Prof. Tipler believes that Jesus may have been an even rarer exemplar -- indeed, a one-time-only species -- of XX-maleness, in which most, if not all, of the fifteen Y-specific genes were inserted into the X-chromosome:

Such a virgin birth would be improbable. If the measured probability that a single Y gene is inserted into an X chromosome is 1 in 20,000, then the probability that all Y genes are inserted into an X chromosome is 1/20,000 raised to the 28th power, the power corresponding to the number of Y genes. (Assuming that the insertion of each Y gene has equal probability and that these insertions are independent.) There have been only about 100 billion humans born since behaviorally modern Homo sapiens evolved, between 55,000 and 80,000 years ago. . . . Thus, the virgin birth of such an XX male would be unique in human history even if there were only two such Y genes inserted into an X chromosome. (I assume an upper bound to the rate of virgin birth is 1/300. Then the probability of a virgin birth of a male with 2 Y genes is 1/[300][20,000][20,000] = 1/120 billion.)

How could it be determined if Jesus were in fact such a unique individual? Unfortunately, the tests run by the Italians in 1993 did not search for any Y-genes other than the Y-allele for amelogenin. (Their black-and-white reproduction of their computer data also unfortunately left out the information from the different dye colorings, which would have enabled one to determine just how many different alleles were present, and the degree to which any contamination might have occurred. As it is, their data from just the Shroud show fourteen different alleles present in addition to that from the X-variant of amelogenin, where one would expect at most eight from the four other specific genes for which they tested. Without more data, it is simply not possible to account for the extra six which they show.) Prof. Tipler recommends that more modern tests be conducted on the stains on the two cloths, which could help to determine whether the DNA contains more than just one Y-specific gene, or only one, or two, and could also help to pinpoint any possible sources of contamination. Such tests could moreover dramatically enhance the likelihood that the blood on the separate cloths is from one and the same genetic source. (As it is, the data shows they share three specific alleles already.)

What is one to conclude from all of this? (As I say, I hope that those who are more expert in these subjects will be stimulated to comment, or to write about it on their own blogs.) The point, I emphasize again, is not that science can offer any absolute "proof" or "disproof" of the Virgin Birth. (How God works His miracles will never be fully comprehensible to mortal understanding.) Instead, what fascinates in this investigation of artefacts which are in all likelihood at least two thousand years old is that they hold up so remarkably well to ever closer scrutiny and more extensive examination. There is plenty of room for skeptics to disagree, and for believers to find encouragement. With an open and contrite spirit, not being stubborn or willfully contrary, each individual must form his or her own conclusions, based on what is at hand at the moment. Such is the essence of the grace which God bestows upon us.

A Merry Christmas to all!

ECUSA Denied Summary Judgment in Quincy: Court Finds a Triable Dispute Whether Church Is in Fact "Hierarchical"

In a ruling released yesterday afternoon by the Eighth Judicial Circuit Court in Adams County, Illinois, Judge Thomas J. Ortbal denied motions for summary judgment brought by ECUSA and its rump diocese of Quincy, which had intervened to join in ECUSA's counterclaim against certain clergy and laity who held property and funds in trust for the (now missionary) Diocese of Quincy in ACNA.

To my knowledge, this is the first summary judgment motion lost by ECUSA, or by any of its rump dioceses, in their attempts to seize the property of the four dioceses which have thus far realigned with the Anglican Province of the Southern Cone and with the Anglican Church in North America ("ACNA").

It is thus very much worth analyzing in detail. As explained at this background page, the realigning Diocese of Quincy had originally filed suit against ECUSA in Adams County Circuit Court when ECUSA, following its by now standard tactics, managed to persuade the Diocese's bank that it should freeze all the funds which the Diocese had on deposit there. This put a crimp in diocesan operations, and has forced the realigning Diocese to relegate itself to missionary status in ACNA. (Meanwhile, the rump diocese has fared no better, and is dependent on continuing subsidies voted by ECUSA's Executive Council to survive, so as to be able to participate in ECUSA's lawsuit. Talk about the hoary offense of champerty!)

The Episcopal Church counterclaimed against the Very Rev. Canon Edward A. Den Blaauwen of Christ Church Cathedral in Moline, and others serving as trustees of the Diocese's funds and property. It alleged that they were wrongfully withholding those funds and property from ECUSA and what it recognized as its "legitimate" (rump) diocese, i.e., the small minority who chose to remain affiliated with ECUSA. To satisfy ECUSA's pattern in these cases, the rump diocese then joined the litigation as a counterclaimant together with ECUSA against the diocesan trustees, and both together then filed motions for summary judgment on their respective counterclaims. They also filed for summary judgment against the original complaint filed by the ACNA Diocese.

The court's job on a motion for summary judgment is to decide whether or not there are any important facts which are in dispute. If there are none, then the court is free to apply the applicable law to the undisputed facts, and deliver a judgment in the case without the necessity of a trial. But if the court finds even one such "material" disputed fact, then it must deny the summary judgment, and allow the disputed fact(s) to go before a jury (or, in some instances, the judge sitting without a jury) to decide which version of the disputed facts is supported by the weight ("preponderance") of the evidence.

Thus the court on a motion for summary judgment cannot evaluate, or weigh, the credibility of the evidence offered by each side. That is the job of the jury (or judge sitting alone) at the trial, if there is one. Instead, the judge looks at what are claimed to be the "undisputed material facts", takes the evidence in support for each such fact at face value, and determines whether or not the opposing side has offered evidence which controverts the moving party's evidence, i.e., disputes it, and so turns that particular fact from a claimed "undisputed" one into a "disputed material fact."

The chief fact at issue on ECUSA's and its rump diocese's motions was whether or not ECUSA is a "hierarchical" church, i.e., a church in which, as the United States Supreme Court expressed it in its 1872 decision in Watson v. Jones, 80 U.S. (13 Wall.) 679, 722-723 (with italics added):

the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.

Under the jurisprudence developed by the courts following Watson v. Jones in the ensuing 130 years, so many consequences favorable to ECUSA itself follow from its fitting within this described paradigm that the Church has spent literally millions and millions of dollars (including over $700,000 in "expert" fees paid to one such witness alone) trying to prove this single characteristic, in court after court. It is in the cases against realigning parishes that ECUSA has had each of its successes. (Shortly I will put up a post bringing current all of the litigation for which ECUSA has been responsible, or involved, for the last twelve years.)

Realigning dioceses, however, are a different kettle of fish. While many parishes have adopted articles or bylaws which expressly state that they are subordinate to the national and diocesan constitutions and canons, only a minority of dioceses have done so. ("Acceding" to the national constitution and canons does not mean subordinating oneself to them, any more than the United States of America, by acceding to Charter of the United Nations, places itself under the absolute governance of that body.)

The reason is simple: dioceses do not have to choose subordination to the national Church unless they voluntarily want to be subordinate. By law, they join the Church as equal members, and unless they have expressly surrendered their autonomy in so joining, they maintain that autonomy within the wider organization. The only requirement in ECUSA's Constitution (the version since 1982, but not any earlier versions) is that dioceses express their "unqualified accession" to it. But as just noted, "accession" (expressing consent), even if not qualified by any reservations withholding consent to certain provisions, is by no means the legal equivalent of "subordination" (voluntarily agreeing to be inferior). In ECUSA's fantasy world, however, "accession" is no different from "submission in perpetuity."

In the Quincy litigation, therefore, ECUSA and its rump diocese put on their best show, initially with affidavits from their most highly paid expert, Prof. R. Bruce Mullin, contending that ECUSA was "hierarchical as a matter of law" -- i.e., according to Prof. Mullin, there could be no honest factual dispute as to whether ECUSA was "hierarchical" in respect to its member dioceses. Subsequently, however, instead of relying solely upon their paid expert, ECUSA changed tactics and provided the judge with all the citations to the many cases involving departing parishes in which ECUSA had purportedly been "found" to be "hierarchical as a matter of law."

And that show went down in flames in Adams County, Illinois, thanks in no small part to the skilled efforts of the Diocese's counsel, as well as to the contributions by Prof. Jeremy Bonner of Pittsburgh, retained by the ACNA Diocese as an expert to counter Professor Mullin. In his ruling yesterday, Judge Ortbal summarized the competing testimonies as follows:

TEC and TEC Diocese argue that as a matter of law the court must find that TEC is conclusively a hierarchical institution and that Diocese of Quincy is subordinate and submits to its highest ecclesiastical authority. It further argues that the issues presented in this lawsuit are solely related to the polity and governance of the subordinate institutions, namely the Diocese of Quincy, which under the authorities and cases relied upon prohibit this court from considering.

Plaintiffs/Counterdefendants [the realigning parties] respond that there are disputed issues of fact regarding the hierarchical structure of TEC and in particular the relationship between the national church and the dioceses. They further contend that the real dispute does not involve ecclesiastical questions of doctrine or polity, but rather control of the property of the not-for-profit corporate entities (the Plaintiffs).

The judge then notes how reasonable minds could draw opposite conclusions from ECUSA's preferred version of the facts:

The documentary evidence relied upon by TEC and TEC Diocese is certainly supportive of their position. However, confirmation and proof of their construction and interpretation of the church Constitution and canons and its supremacy necessarily involves inferences to be drawn from the evidence. The inferences they ask the court to draw are reasonable.

Nevertheless, Plaintiffs/counterdefendants [ACNA parties], contend that contrary inferences can reasonably be drawn from the same undisputed documents and facts, as detailed in their briefs and oral argument. Viewing the evidence as it must, in the light most favorable to the [ACNA parties], the court finds that reasonable persons could draw different inferences from the undisputed facts. This is further the case considering, that to varying degrees, all of the parties have introduced and rely on historical documents and conduct between the national or general church and the diocese.

Once he concluded that reasonable minds could differ as to the inferences to be drawn from ECUSA's so-called "undisputed facts", the motions were lost for ECUSA and its rump diocese. For that is the test of the need for a jury trial: if reasonable minds could differ over the facts, then let each side present its best case to the jury, and allow the jury to resolve the differing versions, under appropriate instructions from the court. "Summary judgment" -- bypassing the jury in a case -- is appropriate only when there would be no point to convening a jury, because their "reasonable minds" (as the law supposes) could draw only one set of conclusions from the undisputed facts.

Next, Judge Ortbal disposed of ECUSA's somewhat arrogant attempt to dismiss or minimize the significance of the opposition's evidence, by showing how that argument should best be made to a jury, and not on summary judgment, where there can be no "weighing" of the evidence (I have added the closing italics for emphasis):

[ACNA parties] further argue that the affidavits submitted in their response raise issues of fact on this record. TEC and TEC Diocese dismissively counter that their affidavits represent merely the opinion of one man or the opinions of a minority, dissenting faction of church Bishops. No motions were filed directed to the admission of the affidavits. Essentially TEC and TEC Diocese ask the court to discount or give this evidence no weight in ruling on their motion. Weighing of evidence is generally improper in a summary judgment proceeding. (See, In re Estate of Alfaro (1998), 301 Ill.App.3d 500; Schulenburg v. Rexnord Inc. (1993), 254 Ill.App.3d 445). Without weighing this evidence, they do raise genuine issues of material fact as to the precise nature of the relationship between the diocese and the general or national church and hence the validity of the actions which are at the heart of this dispute.

Judge Ortbal then turned to the many cases from other jurisdictions cited by ECUSA to "prove" it was "hierarchical as a matter of law":

TEC and TEC's Diocese cite numerous cases, involving similar church, property disputes, which they assert mandate acceptance of their position in this case and granting of their motion for summary judgment. The court has reviewed the cases, but does not find it is bound by them. Further it finds the cases distinguishable on different levels and does not find them conclusively persuasive as to the record before it. For example, the vast majority of the cases involve disputes between local parishes and dioceses and/or the national church. These cases appear very fact driven and many involved concessions or stipulations as to matters which are disputed on this record. Many involve specific religious corporation and/or other state statutes not applicable in the present case.

Thus unlike the highest (and best-paid) justices in New York, Connecticut, New Jersey, Pennsylvania, Georgia, Colorado and California, a lower court judge in Illinois has no difficulty in piercing through ECUSA's film-flam and hyperbole, and actually reading through those many cases to see how they are based on different facts, and different statutes, from those involved in the case at bar. Too many justices (and judges, too, of lower courts) are easily swayed by a "parade of precedent", which presents a hallucinatory judicial bandwagon onto which they can metaphysically jump, and then take a sort of self-induced comfort from the fact that there are so many other justices and judges who are apparently in their company. This intellectual copout represents an abdication of the judicial function. It leads to all kinds of bad law, which is difficult to change after the rubber stamps have become permanent, published cases in the law books.

But Judge Ortbal demonstrates that he is a true judge of the law, able to see through ECUSA's enticements and parade of precedents, and to apply what Illinois law there is to this particular set of facts, following "neutral principles" (my italics are again added for emphasis):

Finally, even if ultimately it is determined that TEC is hierarchical and the Diocese of Quincy a subordinate, dependent constituency and whose leadership is an ecclesiastical issue to which this court must defer, that would not entirely resolve the dispute. The circumstance of the hierarchical structure of government of a church does not preclude a civil court decision respecting a property dispute even under Watson v. Jones (1872), 80 U.S.679, 20 L.Ed. 666, provided the decision can be made without intrusion into the ecclesiastical domain. (York v. First Presbyterian Church of Anna (1984), 130 Ill.App.3d 611).

The court finds that the "neutral principles of law" standard sanctioned by Jones v. Wolf (1979), 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775, has been adopted in Illinois and is applicable to the present case. (York v. First Presbyterian Church of Anna (1984), 130 Ill.App.3d 611; Aglikin v. Kovacheff (1987), 163 Ill.App.3d 426). TEC and TEC Diocese would have the court end the inquiry regarding this dispute by deferring to the ecclesiastical issue of the determination of the leadership of the diocese (assuming its subordinate status to the hierarchical General Convention). However, as in York, that would not necessarily resolve the question of whether the property, held by the Diocese and the Trustees in this case, was subject to a clear right to denominational appropriation by the national church. That appears to the court to be the very heart of the disputed factual issues presented by this record as described above, namely, who as between the competing parties is entitled to control and possession of the assets.

For the foregoing reasons summary judgment is inappropriate at this stage and on this record and is, therefore, denied.

Well done, Judge Ortbal, well done. Thank you for sticking to the law of summary judgments, and for not jumping on to ECUSA's phony bandwagon.

[UPDATE 12/17/2011: I am informed by hearsay that Judge Ortbal also awarded sanctions against ECUSA and in favor of the ACNA parties, in the form of reimbursement for attorneys' fees wasted in opposing the former's legal papers before they were, after several attempts, put into a proper form of which the court could take legal cognizance (and after they had run up the ACNA parties' legal costs in order to oppose Prof. Mullin, whose expert support they then decided to jettison in their final filings with the court). If this turns out to be correct, I shall report on the details here just as soon as I have confirming facts at hand.]

Texas Supreme Court to Hear San Angelo Case

In an announcement released this morning, the Supreme Court of Texas has granted the petition for review filed by the Church of the Good Shepherd, San Angelo, as a result of its loss in the Court of Appeal to the Diocese of Northwest Texas. (I discussed that opinion in this earlier post; the page summarizing the litigation is here.) Oral argument is set for February 29, 2012 at Texas A & M University, in Laredo, beginning at 9 A.M.

[UPDATE 02/29/2012: The petitioners moved to reset the date for oral arguments, and the Court granted their motion on February 27. As of this writing, no new date has been set yet for the oral argument. However, the postponement of this case could allow oral arguments in it to be consolidated with the arguments in the Fort Worth Appeal, which will not be full briefed until March 23, and which will have its oral argument set by the Court in May or June.]


This is an important milestone for the law of church property in Texas. The last time the Supreme Court decided such a case was in 1909; the San Angelo case will provide an ideal vehicle with which to hold that Texas courts must follow and apply "neutral principles of law" in such cases. (One reason for granting review was that the Court of Appeal had left it up to the lower courts whether to apply neutral principles or not, and remain with the old "deference" standard of Watson v. Jones. For more explanation of the background here, read this post, and then this one.)

Moreover, the grant of review by the Texas Supreme Court has important implications for the Fort Worth case, which the Court is still holding on its docket. (Bishop Iker and his diocese requested that the Supreme Court accept direct review of the Tarrant County District Court's summary judgment, without going first through the Court of Appeal.) Since the Supreme Court has not yet signaled what it will do in the Fort Worth case, it could well be that it plans to decide the San Angelo case, and then, if how that decision comes out gives rise to any principles which could be dispositive, it could either decide the Fort Worth petition summarily, or refer it to the Court of Appeal with directions to follow the same principles. Or it could also set the Fort Worth case for full briefing and oral argument.

In any event, the fact that the San Angelo case will proceed to a final and authoritative decision is cheerful news for Bishop Iker and his diocese.

The Lesson We Never Seem to Learn

A good part of our current economic doldrums stems from the lesson that we seem never able to learn, until it is too late. And then, having ruefully learned the lesson at great cost, each generation fails to pass it on to the next, which is then doomed to have to learn it at great cost all over again.

This lesson is not arcane, or abstruse, or difficult to grasp in any way. In fact, I can state it in just nine words:

The more government grows, the worse the economy becomes.

The latest discovery of this truth is announced in a wide-ranging study of 108 countries over the years 1970-2008 conducted by the very geniuses who brought to you the most humongous central government bureaucracy the world has seen to date: the Europeans ( in particular, the staff of the European Central Bank, in Frankfurt, Germany). To save you the trouble of plowing through all their mathematical jargon, here is a choice excerpt from the report's conclusion:

This paper adds to the literature in providing evidence on the issue of whether “too much” government is good or bad for economic progress and macroeconomic performance, particularly when associated with differentiated levels of (underlying) institutional quality and alternative political regimes. . . .

Our results allow us to draw several conclusions regarding the effects on economic growth of the size of the government: i) there is a significant negative effect of the size of government on growth . . . iii) government consumption is consistently detrimental to output growth irrespective of the country sample considered (OECD, emerging and developing countries) . . . .

One does not need all the fancy technical jargon and applied mathematics to understand why the Eurocrats found what they found. Common sense tells us that because government produces no economic goods on its own, but instead derives its ability to function entirely by pulling money from the rest of the country's economy, there has to be a limit on its size for that economy still to be able to grow while supporting the government.

Too little government, of course, results in anarchy and the law of "might makes right" -- not a conducive atmosphere for economic investment and growth. Just as certainly, however, too much government diverts too many resources from the productive economy, and so stifles growth. This relationship between the level of government and the corresponding level of economic activity is expressed in what is called the Rahn curve.

As I say, this is not a difficult lesson to grasp. So why do we have to keep on learning it again and again, over and over, with each new generation? Our grandparents learned it under the Presidents from Harding to Franklin D. Roosevelt; our parents learned it under the Presidents from Eisenhower to Nixon, and now we are learning it under the Presidents from Reagan to Obama.

The cycle starts when a President takes office who reduces government spending and/or cuts taxes from what has gone before. The economy springs to life, and the country enjoys prosperity. But government also thrives on prosperity, and politicians cannot keep from using the increased revenues to institute new social and economic programs, which soon burgeon into more and more government. This continues until the sheer size of government begins to take its toll on the economy, which fades into a recession, and eventually, if the destructive growth of government is not halted, a depression.

In a depression, the government allocates most of the resources, because there is no investment due to the uncertain future, and no savings, since there are few jobs and everyone needs cash. By stepping in to provide handouts and public (non-productive) jobs, government actually hinders the functioning of the markets, and distorts economic reality. It also destroys individual incentive, since who needs to find work when one can simply cash an unemployment check instead?

The modern American welfare state came into full flower with the so-called "New Deal." But it is a myth to think that the welfare state originated with Franklin D. Roosevelt -- it actually started in Europe, in Bismarck's Germany, before it came to America via President Woodrow Wilson and his energetic young social engineer, by the name of Herbert Hoover. The latter learned how to organize massive deliveries of food and essentials, first to war victims, then to Belgians, Central Europeans, and Bolsheviks. At first the relief was private and humanitarian, but Wilson appointed Hoover the head of the U. S. Food Administration, and the bureaucratization of welfare soon followed.

Later, during his own term as President, Hoover tried to employ the same massive means to alleviate the sufferings of the jobless, at the outset of the Great Depression. FDR simply took up Hoover's policies where the latter left off. Take a few minutes to watch the following video, which lays out the actual statistics -- and please pay special attention to the numbers during the administration of President Harding (1921-1923), who succeeded President Wilson, toward the end:

In the video, there is a quote from FDR's Secretary of the Treasury, Henry Morgenthau, which could just as easily today have come from Secretary Geithner, or earlier from Secretary Paulsen:

We have tried spending money. We are spending more than we have ever spent before and it does not work. . . . We have never made good on our promises [on employment]. . . I say after eight years of this Administration we have just as much unemployment as when we started . . . and an enormous debt to boot!

The difficulty is that as the cycle repeats itself in each new generation, the welfare state becomes larger with each iteration, and becomes harder and harder to eliminate, even in times of prosperity. This phenomenon is partly tied to our ever-increasing population with each new generation; there are more and more people who become welfare state beneficiaries (or, in less charitable language, who "go on the dole").

FDR's Social Security is still with us, and in the seventy-odd years since its inauguration has mutated from a system in which there was one beneficiary for every 160 workers (a ratio of 159.4 to 1, in 1940) to one in which the ratio has now, for the first time ever, gone to less than three to one in 2010. The decreasing ratio, of course, is unsustainable -- because the percentage of pay withheld from each current worker is inadequate, even at a three-to-one ratio, to provide benefits for just one retiree. As the current Baby Boomer generation reaches retirement age, the ratio will drop even more. The system will eventually face bankruptcy unless people are required to work longer before receiving benefits, or workers pay still more in payroll taxes, or have their retirement benefits reduced, or some combination of all three is put into place.

Even if the system can be "fixed" before it goes bankrupt, however, one has to ask: what is the point of a scheme which forces current workers to support retired ones, in the expectation that when they retire, the people working then will support them? What does such a scheme do to individual incentives to save for retirement? A welfare state simply gets people hooked on more and more welfare, as is graphically illustrated by these two drawings (click each to enlarge):

As economist Robert J. Samuelson points out, the welfare state as a phenomenon of the late nineteenth and the full twentieth century is now facing its inevitable end, due to the impossibility of a government's supporting many more people than those who pay the taxes that support the government. He writes:

To flourish, the welfare state requires favorable economics and demographics: rapid economic growth to pay for social benefits; and young populations to support the old. Both economics and demographics have moved adversely. . . .

The modern welfare state has reached a historic reckoning. As a political institution, it hasn't adapted to change. Politics and economics are at loggerheads. Vast populations in Europe and America expect promised benefits and, understandably, resent any hint that they will be cut. Elected politicians respond accordingly.

But the resulting inertia poses an economic threat, one already realized in Europe. As deficits or taxes rise, the risk is that economic instability will increase, growth will fall, or both. Paying promised benefits becomes harder. Or austerity becomes unavoidable.

The paradox is that the welfare state, designed to improve security and dampen social conflict, now looms as an engine for insecurity, conflict and disappointment.

As I said at the outset, this is not rocket science, but common sense. It is also something that was once ingrained in our national character, when citizens instinctively saw something wrong with government taking on the role of rescuer of last resort. Indeed, as long ago as the 1880's, President Grover Cleveland summed up the national resistance to government-provided aid by pointing out that it was a slippery slope, and difficult to place limits upon once the practice became routine. Vetoing a Congressional bill to provide financial relief to drought-stricken Texas farmers, he asked the simple rhetorical question: "If the Government supports the people, who will support the Government?"

Lately, it has become common to point out the sins of conservative presidents, such as Ronald Reagan and George W. Bush, whose administrations saw huge increases in government debt and spending even as they lowered tax rates to generate more economic activity in the private sector. This was the welfare state continuing its incessant encroachment on individual incentives, with the public sector expanding steadily along with the economy. The recipe worked for a time, during prosperity; but in a recession or depression, the choke of the welfare state becomes a veritable death grip. And under President Obama, look how rapidly the numbers have deteriorated.

The cure for this cancer is not a mystery. After the Wilson administration ended in paralysis and failure, as noted in the video above (with the Gross National Product plunging 24%, from $91.5 billion in 1920 to $69.6 billion in 1921), a President with a solid middle-class upbringing, and small-town values (but unfortunately all too trusting of his friends and allies), turned the economy around by the simple tack of reducing government's slice of the economy. Warren Harding cut federal spending from $6.3 billion in 1920 to $3.2 billion by 1922. Taxes were reduced, and the number of unemployed was cut by more than half.

But that was just the beginning. On Harding's sudden death from a heart attack in 1923, Calvin Coolidge succeeded him, and his policies led to the "roaring Twenties." His budget going out of office was smaller than Harding's, even though the country had grown considerably in the meantime. He cut tax rates five times, and his eye on spending was just as sharp with his own White House budget as it was with the country's. The economy boomed, the stock market soared -- and then came Black Tuesday in October 1929.

The stock market crash, however, was not Coolidge's fault. If any fault is to be assigned to the government, it would have to be placed upon the newly created Federal Reserve Bank, which failed to curb leveraged speculation as the market boomed, and then withheld any cash infusion to the banking system after the crash itself. Eventually this led to widespread failures, and an ensuing panic as people tried to pull all their money out of banks at once. By then FDR was in charge, and he unfortunately did not have Coolidge's sense of thrift and limited government.

The rest is history. We are once more at a great crossroads. Whether this nation can wean itself from the welfare spigot of Franklin Roosevelt, and revert to the sensible values of Warren Harding and Calvin Coolidge, is the fundamental question of the day. The future of our own grandchildren will depend on the choice we make in 2012.

Sophistry in the Guise of Punditry

In the course of complaining about his old bugaboo, the former Archbishop of Nigeria, Jim Naughton lets fly an assertion that discloses all one needs to know about why the Church's activists will never be able to meet on common ground with its traditionalists (bold emphasis is mine):

Old bigots never die . . .

. . . they just keep running their mouths.

It will come as a shock to no one that Archbishop Peter Akinola, retired primate of the Church of Nigeria, supports a bill currently under consideration in that country that would criminalize same-sex marriage . . .

It can't be said often enough, that most of the members of the Anglican Church in North America left the Episcopal Church because they could not abide its teachings on same-sex relationships, and chose to join a movement led by Akinola, whose opinions on such matters were apparently more to their liking. Anti-gay bigotry is deep in ACNA's bones, and no amount of obfuscation from its apologists who would have you believe that their dispute with the Episcopal Church is all about scriptural interpretation can camouflage that fact. "Scriptural authority" is to the debate over sexuality as "states' rights" was to the debate over slavery.

Oh my, oh my. I could not at first believe my eyes, but yes -- that is what Jim Naughton wrote, and published for all to read on the Internet. "'Scriptural authority' is to the debate over sexuality as 'states' rights' was to the debate over slavery."

Here are some of the most obvious points in rebuttal -- which fairly cry out for expression -- but which merely scratch the surface of all that could -- and should -- be said in response to such monumental ignorance.

• "States' rights", Mr. Naughton, had nothing to do with the issue of whether this country should go forward upon an economic foundation where some men were legally permitted to enslave others.
• The States of these United States had no more political power to authorize slavery within their borders (as opposed to absorbing it without question, thereby "grandfathering" it into their political structure) than Egypt had to keep the Jews in bondage.
• Your statement first and foremost exhibits a profound confusion about what is a "right", which properly speaking, in a legal sense, entails a corresponding obligation upon the liberty of others to do as they like -- a "duty" on their part, if you will, to "recognize" my "right."
• For example, you have a legal duty not to hinder or obstruct my right to vote. And the several States have an obligation to protect my right to vote against your attempt to hinder or obstruct it. That is what it means to have a "right."
• But to authorize the legal ownership of one human being by another is to create no legal "right" to own slaves at all, since it is meaningless, under our system of government, to talk of "ownership" of any fellow being made in God's image. The laws about slaves were inherited from the colonial governments, and were carried into Southern society after the Revolution. Eventually, both the British and American governments came to realize that slavery could never be legitimized by any political authority.
• The "States' rights" of which you speak, Mr. Naughton, were claimed by those who denied the right of the national government to interfere in local affairs, regardless of their nature.
• First and foremost, the concept of "States' rights" had to do with the right of States to secede from the Union, in order to prevent -- if that was the only way possible -- the national government from "interfering" in their local affairs.
• Secondarily, "States' rights" was a rallying cry by which to resist the authority of Congress to pass legislation binding upon the States. Certain southern States, led by John C. Calhoun, claimed the power to "nullify" acts of Congress within their borders, notwithstanding the Supremacy Clause in the Constitution.
• "Ownership" of human beings by other human beings, however, was never a "right" that could be "reserved" to the people under the Tenth Amendment, because its very assertion negated another right indisputably reserved to the people, namely the right to "life, liberty, and the pursuit of happiness."
• Those rights were not, as the Declaration of Independence acknowledged, "reserved to the people" by the people themselves, in forming a national government, but were rather pre-existing and unalienable rights conferred by the Creator upon all men equally, by virtue of their birth.
• As an unalienable and natural right, the right to one's liberty could not be signed away in the course of any political process, no matter how democratic. As any neutral observer was forced to conclude (in agreement with William Wilberforce), the status of slavehood was never the result of a contractual bargain, but rather the product of subjugation by kidnapping and force.
• It followed, from the concept of natural rights, that slavery was incompatible with the Declaration of Independence, and could not lawfully be imposed, or recognized, as a legitimate status upon any human being. The Supreme Court's Dred Scott v. Sandford decision to the contrary was repudiated, and it stands today as a monument to colossal judicial arrogance.

The authority of Scripture within the Church is thus a parallel, not to the rights secured to the States by the Tenth Amendment, but rather to the natural rights of all humans recognized, and expressed, in the Declaration of Independence. The point is that neither -- the natural rights so acknowledged, nor the authority of Scripture -- can be surrendered, nullified, compromised, or taken away, by any earthly authority whatsoever. They are God-given, and thus are not for man to interfere with, dabble in, or temporize in any way, shape or form.

Your nonsensical claim, Mr. Naughton, purporting to equate "States' rights" with "the authority of Scripture," thus gets the truth exactly backward. States have "rights" only insofar as the people have granted them in the first place -- there are no "natural" rights of States, which are not created in God's image, after all. The people themselves are the source of all rights which may be granted to the several States.

But the people also, as we have just seen, possess certain rights which are unalienable: which is to say, they may not be granted, sold, or bartered away in exchange for anything else whatsoever.

Likewise the authority of Scripture inheres in Scripture itself, as the Word of God, and may not be compromised, bargained away, minimized or contradicted in any way, shape or form whatsoever.

You thus play a very foolish game, Mr. Naughton, when you try to equate "States' rights" with "the authority of Scripture." Your parallel attempts to match that which comes from God alone to that which comes from mere man. As such, it confuses categories which are fundamental. Hence your analogy is no "parallel" at all, but a desperate attempt to reduce that which is divine to a level of human control, and thus subject to human manipulation.

Man is no more the final arbiter of what Scripture commands than were Southern politicians the final authority on what the Declaration of Independence meant, in saying that "all men are created equal." A terrible war had to be fought to establish that simple truth, Mr. Naughton, and your lame attempt at analogy insults the very ideals that were vindicated in that horrendous sacrifice.

A Welcome Call for an Advent Respite

I have not, until this point, chosen to devote any posts to the ongoing developments with the Anglican Mission in America (AMiA). Although it is certainly a topic within the purview of this blog, I have preferred to wait until more facts are known before adopting a stance on what is happening.

That much having been said, I think it is fair to say that all Christians, everywhere, can uniformly deplore the manner in which this scenario has played out, given the Internet and its ability to spread news at the speed of light, as well as the reactions to that news. The Internet, because of its very immediacy, tends to magnify the significance of individual personalities, and at the same time, to make it thus more difficult to view the entire forest instead of the individual trees (or should I call them "personali-trees"?).

It is thus with great relief that I noted this letter addressed to all the participants in AMiA's ongoing evolution. It is written by the Rev. Alan Hawkins, Network Leader of the Apostles Mission Network, the body of churches and missions which are remaining under the jurisdiction of the Anglican Province of Rwanda (PEAR, to use its French-language initials). And yes, it is ironic that this body, which did not come to the forefront until just a week or so ago, could rely upon the Internet to establish its immediate purpose and presence, in order to reassure those congregations and clergy who were wondering what would happen, that there would indeed be an ongoing entity under the jurisdiction of PEAR with which they could continue their affiliation, if they so choose. As such, it is under the episcopal oversight of the Rt. Revs. Thad Barnum and Terrell Glenn -- the two bishops who have not resigned from the Rwandan House of Bishops, and who have been asked by the latter body to assume supervisorial responsibility for all of the parishes and missions who choose to remain under the Province of Rwanda's jurisdiction:

Dec. 10th, 2011

To whom it may concern:

We are deeply saddened and dismayed by the recent turn of events that have brought pain and separation between the Province of Rwanda and the Anglican Mission in the Americas. We are also deeply grieved by the subsequent "Internet" eruptions and email trails that have contributed to further damage in our witness before believers and non-believers alike.

On December 9th, 2011, the House of Bishops of the Anglican Province of Rwanda (PEAR) appointed Bishop Terrell Glenn, Jr., of Charlotte, NC and Bishop Thad Barnum of Fairfield, CT to oversee the care and shepherding of all clergy who are canonically resident in PEAR and affiliated with the Anglican Mission in the Americas. Bishops Glenn and Barnum hope to work on behalf of PEAR and with the leadership of The Anglican Mission in the Americas in assisting clergy and congregations with their present and future canonical residencies.

To that end, we are requesting an 'Advent Respite' while leaders representing those clergy and congregations concerned can honorably and honestly work through their respective issues. We respectfully ask members of the different media sites and those who 'blog' to observe this respite as well. We recognize this situation has raised numerous questions, especially those of canonical status and future affiliations. We believe these situations will be addressed and questions will be answered "in a manner worthy of the gospel" of Jesus Christ. We also know that, in God's time, there will be an opportunity to bear witness a positive and a Christ-honoring resolution to this painful situation.

In addition, we request of all clergy and congregations in PEAR, that all recruiting, posturing, and gathering for allegiance to one side or another in these matters cease immediately. In place of these, we commit to join everyone in fervent prayer to our Lord that His reconciling love would prevail in our hearts and that His grace would abound as we seek a way forward that blesses Him and brings glory to His Name.

Humbly submitted,

The Rev. Alan Hawkins

Network Leader, Apostles Mission Network

I heartily join in the declared "Advent respite", and wish the many good Christians affected by these events a grace-full and Holy Spirit-led Advent, in which they can mutually, and respectfully, grant each other the space within which to discern the roles to which Our Most Merciful Saviour is calling them within the body of His one holy, catholic and apostolic Church.

To quote again my favorite prayer (now relegated, alas, to the back of the 1979 Prayer Book):

O God, the creator and preserver of all mankind, we humbly
beseech thee for all sorts and conditions of men; that thou
wouldest be pleased to make thy ways known unto them, thy
saving health unto all nations. More especially we pray for
thy holy Church universal; that it may be so guided and
governed by thy good Spirit, that all who profess and call
themselves Christians may be led into the way of truth, and
hold the faith in unity of spirit, in the bond of peace, and in
righteousness of life. Finally, we commend to thy fatherly
goodness all those who are in any ways afflicted or distressed,
in mind, body, or estate; [especially those for whom our prayers
are desired]; that it may please thee to comfort and relieve
them according to their several necessities, giving them patience under their sufferings, and a happy issue out of all their afflictions. And this we beg for Jesus Christ's sake. Amen.

Timberridge Asks Georgia Supreme Court for Stay; Will Petition United States Supreme Court

Timberridge Presbyterian Church, the small Georgia parish which lost its property by a 4-3 decision of the Georgia Supreme Court last month, has asked that Court to stay the implementation of its decision while it petitions the United States Supreme Court to review the Georgia Court's judgment. (H/T: Presbyterian Lay Committee.) At the same time, Timberridge has filed a petition with the Georgia Supreme Court to rehear the case.

I analyzed the Georgia Supreme Court's dissenting and majority opinions in the Timberridge case in this earlier post, and I also wrote about the Georgia Court of Appeal's opinion in this post. Taken together, the two posts provide a very good picture of what is wrong with the Georgia Supreme Court majority's view of what constitutes "neutral principles of law." Significantly, this will be one of the main points in the forthcoming petition for certiorari to the United States Supreme Court:

In its petition for writ of certiorari to the United States Supreme Court, Appellee intends to raise the following issues:

A. Whether [the Georgia Supreme Court] incorrectly applied the holding and guidelines of the [U.S.] Court in Jones v. Wolf … in its analysis of neutral principles, thereby violating the First Amendment to the [U.S.] Constitution.” Jones v. Wolf is a past decision in which the U.S. Supreme Court established a neutral-principles-of-law requirement. That requirement specifies that both parties must have the intent to create a property trust.

B. Whether [the Georgia Supreme Court] violated the First Amendment … by impermissibly deciding ecclesiastical matters rather than applying neutral principles.

C. Whether the [U.S.] Supreme Court should resolve the conflicting opinions of numerous high courts across the nation as to application of neutral principles authorized by the decision in Jones.

The Timberridge case will be a perfect vehicle with which to present the Supreme Court with an illustration of how State courts have misconstrued and misapplied Justice Blackmun's famous dictum in Jones v. Wolf, to the special benefit of churches such as ECUSA and PCUSA, and to the detriment of individual parishes which have all along paid for and maintained their property. Indeed, the application for stay in Timberridge lays out the unusual situation which will occur as a result of the Georgia Supreme Court's judgment unless it is stayed:

This Court should stay remittitur to conserve Georgia’s judicial resources. In its decision dated November 21, 2011, this Court ruled that the local church property where Appellee has worshiped for over a century is impressed with an implied trust in favor of a national denomination that has only been in existence for approximately thirty years.

. . . By its terms, the trial court’s order is effective upon remittitur. Therefore, absent a stay, Appellee will be deprived of its place of worship not only during the holy season of Advent and Christmas but also during a time period when it will be pursuing a petition for writ of certiorari to the United States Supreme Court, challenging the very constitutionality of such injunctive relief. . . .

Furthermore, although counsel for the Appellant argued at the October 19, 2009 oral argument in this Court that the Appellant would assume ownership of the local church property if it was ultimately successful in this litigation, as well as the mortgage which is inherent in such ownership, Appellant later filed a supplemental brief in this Court asserting that “title to the property will remain in [Timberridge Presbyterian Church, Inc.] Thus, any outstanding debt secured by the property will also remain a [Timberridge Presbyterian Church, Inc.] obligation. [The Presbytery] will not assume any of [Timberridge Presbyterian Church, Inc.’s] debts.” (Appellee’s Supplemental Brief, p. 2 (emphasis in original).)

As the record reflects, there will be no church to assume the current obligations of the local church property as a result of this Court’s decision, nor will the Appellant assume those obligations. Id.; see also, R-1158. Therefore, a stay is imperative to preserve the potential rights and obligations of all parties and to prevent a likely foreclosure and loss of the local church property, pending exhaustion of the full appellate process.

Not only does the regional Presbytery plan to take over the parish's property as a result of the judgment; it says it will do so without assuming the existing mortgage! (This is rather short-sighted of them: do they not realize that if the mortgage is not kept current, the bank will end up owning the property, instead of either the Presbytery or the parish? Or perhaps they intend to engage in a game of "chicken" with the parish, to see who will blink first?)

All of this presents a good case for granting the requested stay. Meanwhile, Christ Church Savannah, the other parish which lost its property due to the twisted reasoning of the Georgia Supreme Court (which relied mainly on its 4-3 decision in the Timberridge case), has not requested a stay. It plans to hand over its properties to the Episcopal Diocese of Georgia, and its local congregation, on December 12.

That turnover should not, however, prevent it from petitioning the United States Supreme Court for review of its judgment, as well. Doing so will be the only way for Christ Church to prevent that judgment from becoming irreversible, should the Timberridge parish be victorious in the highest court. Moreover, by filing such a petition, Christ Church would increase the chances of both petitions being granted by the United States Supreme Court.

As I have frequently pointed out before, all of the most recent decisions by the United States Supreme Court on church property law have been occasioned on review of decisions made by the Georgia Supreme Court. In the 1969 case of Presbyterian Church v. Mary E. B. Hull Presbyterian Church, 393 U.S. 440, the Court ruled that church property disputes could not properly be resolved under the "departure from doctrine" element of the implied trust theory which had been employed until then in church property cases in many State courts, including Georgia's. On remand from that reversal, the Georgia Supreme Court ruled that without the "departure from doctrine" element, no part of the "implied trust theory" could survive First Amendment scrutiny (quoting from the U.S. Supreme Court's majority opinion in Jones v. Wolf):

On remand, the Georgia Supreme Court concluded that, without the departure-from-doctrine element, the implied trust theory would have to be abandoned in its entirety. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S. E. 2d 658 (1969) (Presbyterian Church II). In its place, the court adopted what is now known as the "neutral principles of law" method for resolving church property disputes. The court examined the deeds to the properties, the state statutes dealing with implied trusts, Ga. Code 108-106, 108-107 (1978), and the Book of Church Order to determine whether there was any basis for a trust in favor of the general church. Finding nothing that would give rise to a trust in any of these documents, the court awarded the property on the basis of legal title, which was in the local church, or in the names of trustees for the local church. 225 Ga., at 261, 167 S. E. 2d, at 660. Review was again sought in this Court, but was denied. 396 U.S. 1041 (1970).

Another decision by the Georgia Supreme Court came up for review ten years later, and resulted in the 5-4 ruling in Jones v. Wolf (1979), 443 U.S. 595, that sanctioned a “neutral principles” form of analysis as a constitutional alternative in church property disputes --- even in ones involving a hierarchical church. The case was again sent back to the Georgia Supreme Court for it to apply such "neutral principles" to resolve the ownership question in favor of the majority of the parish.

Before the decision came down in Jones, the Georgia Supreme Court went off on another tack, and upheld the award of a parish's property to the national denomination in Carnes v. Smith, 236 Ga. 30, 222 S. E. 2d 322, cert. denied, 429 U.S. 868 (1976). As described by the majority in the Jones opinion again:

That case concerned a property dispute between The United Methodist Church and a local congregation that had withdrawn from that church. As in Presbyterian Church II, the court found no basis for a trust in favor of the general church in the deeds, the corporate charter, or the state statutes dealing with implied trusts. The court observed, however, that the constitution of The United Methodist Church, its Book of Discipline, contained an express trust provision in favor of the general church. [Footnote omitted.] On this basis, the church property was awarded to the denominational church. 236 Ga., at 39, 222 S. E. 2d, at 328. . .

Three Justices of the Georgia Supreme Court dissented from this holding, on the grounds that under "neutral principles of law", only the church deeds and similar documents could be consulted, and not any national church rules or canons. As noted in the quote above, the United States Supreme Court had refused to review the decision in 1976. Then, in 1979, it reviewed and reversed the Georgia Supreme Court in Jones v. Wolf.

Now the Georgia Supreme Court has again purported to apply its doctrine favoring national church-imposed trusts as part of "neutral principles", in the Timberridge case. But this time, there is a new wrinkle. As explained in my two posts on the appellate decisions linked earlier, the Timberridge parish took steps to opt out of the national church's trust provision, steps which the Georgia Supreme Court deemed were inadequate. The Georgia Court needed to reach that result in order to bolster its decision in the Christ Church case, and as indicated, the result was a divided 4-3 Court.

The Timberridge parish is to be commended for calling the majority's result-oriented reasoning to account before the nation's highest court. And for the reasons I gave earlier, Christ Church should strengthen its own and Timberridge's chances of a hearing by asking for review of its own judgment, as well. Only in that way will the United States Supreme Court be able to see how the rationales of the two cases were inextricably bound up with each other, so that if one falls, the other must, as well.