Monday, February 28, 2011

Rushing to Judgment: a Spurious Defense of Title IV (Part III)

[Note: Part I of this analysis of the justifications offered for the new disciplinary canons ("Title IV") approved by General Convention 2009 may be read at this link, and Part II is here.]

One of the most striking ways in which the proposed revisions to Title IV of the national Canons depart from previous precedent is in the broad new powers they give to the Presiding Bishop. In essence, they make the relationship between the Presiding Bishop and the other bishops in the House of Bishops analogous to the relationship between a diocesan bishop and the clergy in his or her diocese. When one bishop has such pastoral and disciplinary powers over other bishops, s/he is said to be "a metropolitan," or to have "metropolitical powers." Such metropolitan bishops are frequently (but not always) called "Archbishops."

Until the proposed changes to Title IV take effect next July 1, ECUSA will never have had a metropolitan bishop in its more than 221 years of existence since 1789. Archbishops are known to the Church of England -- the Archbishop of Canterbury has metropolitan authority over all the bishops and clergy in the Province of Canterbury, while the Archbishop of York exercises the same authority over all the bishops and clergy in the Province of York. But the strong feeling against bishops in this country after the Revolutionary War meant that there could be no thought of the creation of any such position for the Protestant Episcopal Church in the United States of America.

Why, then, did the Title IV Task Force II revisers think that they could engineer such a drastic change in the polity of ECUSA? And not only bring about such a drastic change, but accomplish it in such a back-door manner? Here is the language from the revised Title IV which does the trick, tucked away toward the end of the proposal (from Section 2 of Canon IV.17):
Sec. 2. In all matters in which the Member of the Clergy who is subject to proceedings is a Bishop, the following terms used in Canons IV.5 through IV.16 and Canons IV.18 and IV.19 shall have the following respective meanings:
(a) Disciplinary Board shall mean the Disciplinary Board for Bishops as provided in Canon IV.17.3.
(b) Intake Officer shall mean a person appointed by the Presiding Bishop.
(c) Bishop Diocesan shall mean the Presiding Bishop, unless the Member of the Clergy who is subject to proceedings is the Presiding Bishop, in which case Bishop shall mean the Bishop authorized by Canon IV.19.24. . . .
Thus, by a simple redefinition of the term "Bishop Diocesan" to mean "Presiding Bishop" in all disciplinary matters involving bishops, the Presiding Bishop is given the same authority over the Church's bishops which each of them has over the clergy who are resident in their diocese.

And here is the first argument offered by the members of Task Force II in justification for this monumental change (p. 7):
Since the Constitution not only fails to limit the authority of the Presiding Bishop, but also affirmatively authorizes the Canons to spell out the duties of that office, it does not seem possible to hold, as the Runyan & McCall paper implies, that the office is limited to those duties expressly stated in the Constitution itself. The entire history of canonical legislation relating to the duties of the Presiding Bishop demonstrate that General Convention itself has never considered that office to be limited as the Runyan & McCall paper states.
As Messrs. Runyon and McCall point out in their response, this argument is based on the fatally defective assumption that in drafting constitutions, "authority" equates to "duty." That is, the argument first notes that ECUSA's Constitution seems nowhere to place any limits on the authority of its Presiding Bishop, and then observes that in Art. I, Sec. 3 the document provides that the duties of that office may be prescribed by canons enacted by General Convention. And then it makes the illogical deduction that a lack of limits on the authority of the office must mean that there are no limits, so that General Convention may employ its canons to give to the office any authority it chooses, without limitation.

Notice how the conclusion does not even begin to follow from the premise. Because the Constitution does not circumscribe the authority of the Presiding Bishop does not mean either (a) the authority must be unlimited; or (b) that General Convention has the power to define the authority of that office -- or to add to, or detract from, its authority on its own. And since duty flows from (and is defined by) authority, having the power to prescribe duties appropriate to the authority that has been given is not the same as having the power to create new authority by creating new "duties."

Can anyone today seriously argue that the office of the Presiding Bishop of ECUSA is without any limits on its authority? The Title IV Task Force II seems to think so -- and they defend their extension, sub rosa, of metropolitical authority to that office on the ostensible ground that such authority is "nothing new," because General Convention "has never considered that office to be limited as the Runyan & McCall paper states."

Only persons who were determined to ignore the evolutionary history of the office of Presiding Bishop could make such an outlandish statement. I traced that evolutionary history in much greater detail in this earlier post, and there is no need to go over all that old ground again. Here is just a sampling of the evidence which completely refutes the Task Force's argument:
Throughout all this history of the office, the presiding bishop continued to retain, following his assuming the office, his diocesan jurisdiction and responsibilities. (This was a natural consequence of how his function was originally conceived: he was one diocesan among others, elected to preside over their assemblies.) At the Convention of 1940, the invitation of the Diocese of Washington to designate its National Cathedral as the official seat of the Presiding Bishop was approved. And in 1943, as both a portent, perhaps, of changes to come, as well as a reflection of the increasing importance of the office itself, General Convention voted to require the presiding bishop to resign from his diocesan jurisdiction upon election. At the same time, a proposal was made in the House of Deputies to add language to the Constitution allowing General Convention to give the presiding bishop a see, but the designation of particular territory from which to constitute such a see proved highly problematic, and in 1946 the proposal was dropped. Messrs. White & Dykman observe (Vol. I, p. 29, with emphasis added):
To provide the Presiding Bishop with anything like an archbishop's traditional jurisdiction was impossible. Metropolitical jurisdiction over a province of the Church and the dioceses therein, arming the metropolitan or archbishop with visitatorial and juridical powers, could not be artificially grafted upon a national Church, the polity of which still reflected its origin in a federation of equal and independent Churches in the several states.
The statement emphasized in bold has been stressed again and again on this blog, for the reason that those currently in power at ECUSA seem determined to forget it, along the with consequences it entails. Where archepiscopal authority evolved along with the Church, it did so naturally. The Archbishop of Canterbury's authority flowed naturally from the authority given to the first occupant of that see, to oversee the establishment of the Christian religion in the British Isles. As more and more churches were established, more clergy came under the authority of the see of Canterbury; while in the north of England, the Bishop of York began to develop similar authority. As dioceses were created, and then organized into the provinces of York and Canterbury, the metropolitical lines of authority from first the Pope (and later the King), as head of the Church, down through his archbishops, evolved naturally with the positions themselves.

No similar course was followed in the United States. There was no one single bishop charged with the responsibility for converting all of America, all at once, to the Christian religion, or even to the established Church of England. Authority in the Colonies had different sources than authority in England itself -- a point that recurred when the Privy Council ruled in the Colenso case in the mid-nineteenth century that the royal prerogative in creating metropolitans did not extend to the colony of South Africa. To argue, therefore, that it is only "natural" for the Presiding Bishop to assume such authority over the independent and autonomous member dioceses in PECUSA is to ride roughshod over our Church's polity.

The Title IV Task Force II also makes the nonsensical argument that the Constitution's restriction (in Art. II, Sec. 3) against the exercise of episcopal jurisdiction outside the diocese in which a bishop is elected does not apply to the Presiding Bishop as such, because ever since 1943 the Presiding Bishop (as noted in the quote from White & Dykman, above) has not belonged to any one diocese, and is not elected by any one diocese, but by the whole Church. This argument is nonsensical, in that it makes meaningless the entire debate since 1943 that has occurred over the proper task and functions of the Presiding Bishop. It simply presents itself as the logical extension of the "primatial creep" that began under Presiding Bishop John Hines, with his huge expansion of the office's responsibilities -- and independence from the dioceses:
Under the leadership of Presiding Bishop John Hines (1965-74), there was launched the General Convention Special Program (GCSP), which the contemporary Loren Mead portrays as the beginning of a fatal shift in roles:
I think it was in John Hines's time that "primatial creep" set in. The instrument was the General Convention Special Program (GCSP). It was one of those things that simply had to be done − history demanded that we face it. You'll remember the fireworks and anxiety about national staff "interfering" with dioceses (especially dioceses in the South where racial issues were painful and keen). Primatial creep is not my name for what happened to the Presiding Bishop − but for what happened to the House of Bishops. The House of Bishops had to work with conflict between dioceses and 815. (By now it had been built. Remember, it was 1963 when it was finished and we actually had national staff located in one place.)

That − in my opinion − was when the House of Bishops first began usurping the power of the bicameral legislative process that was in our constitution. The racial issue was just too painful and sensitive, so the bishops had to take it over and negotiate through the conflict years. Maybe it had to happen, just as John Hines had to go beyond where others had gone before.
Through the vehicle of GCSP, the Presiding Bishop's office took control of an entire secondary budget within the Church, devoted to the goal of "social justice" and funded wholly outside of the several dioceses:
Church sociologist William Swatos (on p. 208 of the article referenced in the previous post, and which I shall hereafter cite simply as "Swatos 2005") characterizes GCSP as "a program to channel a relatively massive fundraising effort to community agencies working principally on behalf of ethnic minorities." He seconds Mead's first-person account of the change that took place in the Church as a result of GCSP:
There is undoubtedly a book to be written on GCSP, but the thesis here is a relatively simple one; namely, that GCSP and Hines's primacy became problematic within the life of the Episcopal Church. This was not because of its focus on minorities, which was already present in the Lichtenberger years, but for two other reasons. First, funds were channeled to local secular agencies without consultation with either diocesan authorities (principally the bishops of the dioceses involved) or church groups already involved in working with minority ministries. Second, the leadership of GCSP eschewed the leadership within the church already working on these issues. Again, this was allowed to occur first because of Hines's personal charisma (often referred to in his case as "prophetic leadership") in generating the funds, principally from the women of the church, and then because of the office charisma of the PB that enabled him to work unchecked.
In other words, through the persona of Presiding Bishop John Hines, "815" began to develop an identity and constituency of its own that was independent of the dioceses which made up the Episcopal Church. With his ability to attract funds above and beyond the normal voluntary diocesan contributions, and following on the buildup of staff that occurred under his predecessors, Hines was successful in establishing the first "permanent" bureaucracy at national headquarters, with a devotion solely to the social programs of the Church that was independent both of General Convention and of the Executive Council that was expected to function in its place during the period between national conventions.
The justification offered by the Title IV Task Force II for its wholesale enlargement of the powers of the Presiding Bishop does not just ignore the historical facts; it also has to ignore the literal facts. Contrary to their claim, the Presiding Bishop of ECUSA does exercise territorial jurisdiction -- but only over provinces and convocations situated beyond the boundaries of the United States. Thus the express language of Article II, Section 3 limits her exercise of episcopal jurisdiction just to those extraterritorial locations, like any other bishop with jurisdiction. The entire argument to ignore that limitation is once again based on a logical fallacy, as well as on a misreading of historical facts, and on a derogation of the polity of this Church. The current occupant of the office, however, seemingly recognizes no limit on her jurisdiction whatsoever, and in that respect, she enjoys a revised Title IV eminently suited to her purposes.

Without any prior warning whatsoever being required, the literal language of Title IV as revised would enable the Presiding Bishop to issue a "Pastoral Direction" to any diocesan bishop, and then to inhibit that bishop from the exercise of his or her powers in the diocese, with the single stroke of a pen, and without having to consult anyone else inside or outside the affected diocese. Such authority over bishops is simply unprecedented in the history of this Church, but in view of the number of dioceses to date which have cooperated in enacting their own implementations of the revised Title IV, it appears they have no clue as to the consequences that lie in store for them.

And, if the truth be told, 'twas ever thus. I know not what desire for "temporary safety" is driving the majority of dioceses in ECUSA into the arms of their worst enemy, but I know that Benjamin Franklin had it right when he observed:
Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.

Thursday, February 24, 2011

Rushing to Judgment: a Spurious Defense of Title IV (Pt. II)

[Note: Part I of this analysis of the justifications offered for the new disciplinary canons ("Title IV") approved by General Convention 2009 may be read at this link. Part III is here.]

The paper published by the Title IV "Task Force II" takes up three constitutional challenges to the 2009 revisions approved for Title IV of the national Canons (dealing with the discipline of clergy). The first challenge is that the revisions are in derogation of the powers reserved to the Dioceses in Article IX of the Constitution, which provides in part: " . . . Presbyters and Deacons canonically resident in a Diocese shall be tried by a Court instituted by the Convention thereof . . ." (italics added). (The other two challenges will be addressed in subsequent posts.)

The paper answers this challenge by contending that the current language of Article IX reserves to the Dioceses literally only the power to create the courts to try priests and deacons. General Convention, on the other hand, is free (under the authors' view) to specify in detail just which kinds of persons, and how many of each, will serve on the courts; their specific jurisdiction over clerical offenses; the procedures to be followed in bringing charges, working out a consent order, referring a case for hearing, conducting a trial, and pronouncing or modifying judgment. In other words, the dioceses create only the skeleton, and supply the personnel; it is General Convention which has the power to flesh everything out and make the whole system work.

Such an argument appears dubious on its face to anyone versed in the law: the power to establish courts normally goes hand in hand with specifying their jurisdiction, staffing, and procedures. And that, indeed, is the way ECUSA did things until very recently. But according to the authors of the Task Force II paper, a little-noticed change made in the wording of Article IX approved in 1901 made all the difference in the world.

The change had come as a very minor element in the comprehensive overhaul of the entire Constitution which lasted from 1889 to 1901 -- through five successive General Conventions. (See the series of posts under the heading "Constitutional Changes" at this link for a detailed history of that process.) From 1841 to 1901, the clause in question had read: "In every Diocese, the mode of trying Presbyters and Deacons shall be instituted by the Convention of the Church therein . . .", and virtually the same wording was in Article VI of the original constitution adopted in 1789.

It is the argument of the paper that the 1901 shift in emphasis from Dioceses "instituting the mode of trying" priests and deacons to Dioceses "constituting the courts" to try them "profoundly changed" the balance of power between the Dioceses and General Convention:
The wording adopted in 1901, however, profoundly changed this Constitutional scheme. Instead of reserving to the several Dioceses the “mode” ‐ the full range ‐ of disciplinary activities, it very precisely prescribed that which is left to the Dioceses: the “institution” of the “Court” by which Priests or Deacons may be tried. No longer do the Dioceses have exclusive rights with respect to the full range of disciplinary activities; from and after 1901, the only part of those activities exclusively reserved to the Dioceses is the establishment of the Court before which trial, if there is to be one, is to be conducted. As a result of this change, General Convention is now constitutionally free to legislate in the area of clergy discipline.
This argument not only ignores the historical context of the 1901 revisions to the Constitution, but it also way overstates its case. The issue has never been whether "General Convention was free to legislate in the area of clergy discipline" -- it has done so ever since the original Convention of the Church in 1789. Canon XII adopted by that first gathering dealt with "Notorious Crimes and Scandals to be censured", and referred to "such rules or process as may be provided, either by the General Convention or by the Conventions in the different States." (1789 Journal [ed. W.S. Perry 1874], Appendix, at p. 128; italics added.) The same language was enacted in Canon XIII ("Sober conversation required in Ministers"), which provided for "the ecclesiastical censure of admonition, or suspension, or degradation [of any 'ecclesiastical person'], as the nature of the case may require, and according to such rules or process as may be provided, either by General Convention or by the Conventions in the different States."

Over time, and with the enactment of subsequent canons, the division of powers envisioned by the founders became clearer: to General Convention was reserved the power of legislating for the discipline of bishops (using a court formed under the House of Bishops), while the individual Dioceses kept control of disciplinary proceedings with respect to priests and deacons canonically resident within their boundaries. For example, the second canon enacted in 1792 specified that the presentment and trial of clergy committing offenses in dioceses other than where they were resident would be the responsibility of the ecclesiastical authority of the diocese "to which such offender belongs . . .".

But when it came to the specification of offenses for which members of the clergy could be tried, both the General Convention and the several Dioceses exercised a form of concurrent jurisdiction. That is, General Convention enacted various canons (as just noted, beginning in 1789) to define the conduct which made any member of the clergy subject to presentment and trial. The Dioceses, however, were not bound by those definitions, and were recognized as having the authority to add to them, as Edward A. White explained in his original annotated edition of the Constitution and Canons in 1924 (pp. 566-67):
This Canon [Canon 28, the successor to original Canon XIII of 1789] declares that a Bishop, Priest, or Deacon shall be liable to presentment and trial for the offences [sic] named in the Canon; can this list of offences be added to by a Diocesan Convention, or can a Minister be presented and tried for an offence not enumerated in the Canon?

. . .
In the trial of the Rev. Mr. Trapnall, in Maryland, in 1847, objection was made to the presentment, which was framed under a Canon of the Diocese of Maryland, said Canon enumerating under other canonical offences, conduct incompatible with the character of a minister of Christ, that such presentment was void because it constituted a new triable offence, one not named in the Canons of General Convention. This objection was overruled by the Court, and a part of the argument of the Church Advocate was, that the Canon of the General Convention did not contain the full penal code of the Church -- that its title was "Of Offences for which a Clergyman may be tried," not of "the Offences." That the General Convention only meant to specify certain offences for which a Clergyman must be tried, leaving the code to be filled up as separate Diocesan Conventions might deem proper. In other words, that the legislation of the General Convention was not designed to be exclusive legislation.
In their response to the Task Force paper, Messrs. Runyan and McCall have given additional proofs from history to show why the change to the language of Article IX in 1901 did not effect a substantive change in the division of exclusive jurisdiction between the Dioceses and General Convention which had theretofore been uniformly observed. One of the proposals made in 1895 by the Joint Commission on the Revision of the Constitution and Canons was to give General Convention "exclusive power to enact Canons defining the offenses for which Bishops, Presbyters and Deacons may be tried, and determining the penalties . . ." Like its other proposals to give General Convention supreme legislative powers in certain areas, however, this idea was thoroughly repudiated when the dioceses assembled in General Convention in Washington, D.C. in 1898.

Given this historical background, as Messrs. Runyan and McCall point out, there is no warrant for arguing that the change finally made to the wording of Article IX in 1901 was intended as a major change in course with regard to the powers of General Convention. If anything, the revisions approved in 1901 were settled upon only after the radical proposals to expand those powers had gone down to a stinging defeat.

The most telling evidence that no substantive change was effected in 1901, however, is the evidence pertaining to the extreme difficulty encountered in establishing appellate courts (Courts of Review) with the power to affirm, reverse or modify the decisions of diocesan tribunals. Once again, Edward White provides the definitive history (pp. 620-21; see also White & Dykman [1981], Vol. II, pp. 989-991):
The question of providing Appellate Courts has occupied the attention of a majority of the General Conventions since 1853. In the General Convention of that year, an amendment to the then sixth Article of the Constitution was approved by both Houses, inserting the words "until the General Convention shall provide a uniform mode of trial," after the words "In every Diocese the mode of trying Presbyters and Deacons may be instituted by the Convention of the Diocese."
. . .
The Convention of 1856 defeated the amendment to the Constitution adopted by the Convention of 1853, through failure of the Laity to concur therein. The Convention, however, approved of an amendment to the said sixth Article of the Constitution in another form, substituting for the words of the former proposed amendment the following: "but the General Convention may establish a Court of Appeals for the revision of Diocesan Courts," and also adding at the end of the Article the words: "Such Court of Appeals not to revise the determination of any question of fact."
. . .
The proposed amendment to Article VI. of the Constitution approved by the Convention of 1856 was defeated in both Houses of the Convention of 1859. So decisive was the defeat of the attempt to amend the Constitution to provide for a Court of Appeals, that the question was not again seriously brought before General Convention until 1871. From that time until the revision of the Constitution in 1901, when the amendment to the Constitution was finally enacted, providing that the General Convention might establish Courts of Review and an Ultimate Court of Appeal, the question was presented to almost every General Convention. . . .
Mr. White also notes that earlier proposals to establish Courts of Review by the adoption of a suitable Canon were all defeated by the argument that such a Canon could not properly be enacted without an amendment first being made to the Constitution. In 1904, after the Constitution had been successfully amended, General Convention enacted its first Canon to establish the desired Courts of Review. A proposal to establish an Ultimate Court of Review, however, went down to defeat after being considered by several subsequent Conventions.

If the argument in the Task Force II paper were correct, General Convention would have had the power -- without needing any authority in the Constitution -- to establish a Court of Review even before the Constitution was amended in 1901 to authorize such a Canon. That is because they argue the Constitution's silence on the power to legislate about clergy discipline after 1901 left the field open for General Convention to occupy. But the Constitution was similarly silent before 1901 on the subject of reviewing judgments from the diocesan tribunals, so if its silence constituted authority to legislate, then nothing stood in the way of General Convention's authority to create such courts of review. (And that, indeed, was the view of a number of canon lawyers in General Convention before 1901, but they remained in the minority.) Thus, every single proposal to that effect before 1901 -- and there were many -- was rejected.

Thus, the justification offered by the "Task Force II" on Title IV has no historical basis in fact, and constitutes a misreading of the intent of those who enacted the language. And as argued at the outset of this post, there is no rational basis for dividing the power to establish courts from the power to define their jurisdiction, constitution, and procedures. Read in that way, Article IX becomes a mere fig leaf: the real power to create the courts, notwithstanding the language of Article IX, lies in General Convention.

And so to read Article IX, in a paper submitted by the authors of the revisions to Title IV, is to express everything that is wrong with the current views of the leadership of ECUSA as to its polity. In the state court lawsuits, over and over again, that leadership has beat the drum for ECUSA's "hierarchical" polity, when -- as shown in the first post in this series -- there is no such hierarchy as between the dioceses themselves, or when assembled in General Convention. The proof of this point lies in the latest revisions to Title IV themselves. On the "Publications" page of General Convention may be found links to various documents regarding the revisions, including a set of "model" canons for the dioceses to enact in order to implement the revisions.

Without the dioceses enacting those (or similar canons) in their own separate conventions, the changes to Title IV approved at the national level in 2009 could never take effect. They would remain as airy abstractions, incapable of being translated to actions on the ground. The very fact that the Dioceses are necessary to give concrete fulfillment to the enactments of General Convention is proof enough, if any more were needed, that to speak of the "powers" of General Convention to enact canons "binding" on the separate Dioceses is utter and ignorant nonsense.

Wednesday, February 23, 2011

Rushing to Judgment: a Spurious Defense of Title IV (Part I)

Blogs concerned with Episcopal canon law (such as this one, and the Anglican Communion Institute) have given a good deal of attention to the wide-ranging changes made by General Convention at Anaheim in 2009, after just fifteen minutes of debate, to the disciplinary processes spelled out in Title IV of the national Church Canons. The concern here on the right has been with the constitutionality of the changes, i.e., with their conformity to the powers given to General Convention and the Presiding Bishop under ECUSA's Constitution.

The concern on the left has been entirely with their adoption and implementation by the various dioceses of ECUSA, so that the new procedures will be in place by next July 1, when they are scheduled to go into effect. Only recently have the members of the Task Force responsible for drafting and proposing the changes seen fit to respond in public to charges that the changes were unconstitutional. (How telling is it that these questions were not even raised, let alone considered, in the meetings of the Task Force itself, and that no memorandum defending their constitutionality accompanied their presentation to General Convention? The Task Force's motto appears to be: "Shoot first, and take questions afterward.")

[UPDATE 02/23/2011: Messrs. McCall and Runyon have now posted their specific response to the Title IV Task Force II paper at the ACI Website. I heartily commend it to your reading; it demonstrates the lack of historical grounding in the Task Force's arguments, as mentioned below, and which I will address in posts to follow.]

Before taking up their memorandum in detail, however, I want to put some of the matters involved into a proper perspective. Some of what I will now say may come as a surprise to those who are unacquainted with how ECUSA came into being. (If the description fits, then you might want to consult the posts under the subhead "History" at this page before proceeding further -- thank you.)

First proposition:

General Convention is not the "supreme" (highest) authority in the Church -- it never has been, and (unless the current liberal takeover is perfected) never will be.

(See this post for details.)

Second proposition:

As formed in 1789, and as continued in existence ever since, the Protestant Episcopal Church in the United States of America is a voluntary confederation, and not a forever indissoluble union, of dioceses.

(For details, see this post, and this one.)

Third proposition:

As such, there is no single person (or body) at the "head" of the Episcopal Church (USA).

This is the logical consequence, or corollary, of the previous two propositions. A confederation may elect a leader to preside over meetings and speak to the press, but by definition that leader is not a "supreme" leader, with authority over the confederation's members.

Fourth proposition:

Being the legislative arm of the dioceses which make up ECUSA, General Convention has no more authority when assembled than any one of the dioceses has on its own.

All it can do is express the collective will of the dioceses at any given moment -- as determined by majority vote in both Houses, or in special cases, by a majority of the votes of the dioceses taken by orders. Because it has never been granted supremacy, however (First Proposition, above), General Convention has no power whatsoever to bind the several dioceses to what it from time to time votes to express as their collective will. Indeed, General Convention passes wholly out of existence at the end of its two-week (or less) session every third year, never again to reassemble as such. Lacking any existential continuity, it is incapable of binding the individual dioceses -- which do have an ongoing existence -- to any continuing requirements which could be read as having survived its existence. Indeed, the very next General Convention that assembles is completely free to disregard or override the actions of the previous one, or to select those actions of its predecessor(s) which it will deign to honor.

A side note: The text of the Book of Common Prayer, and the national Canons, are a consensus which each Diocese chooses to accept and follow. (The BCP, of course, has further liturgical strictures to which the clergy subscribe by vow upon ordination. As for the Canons, we are about to see the consensus unravel, because of the unconstitutional power grab in the latest revisions to Title IV.) And as we all know, dioceses frequently choose not to follow a particular canon -- such as the one prohibiting open communion, or the ones providing for letters dimissory, or in past times, the rule against suffragan bishops, and the requirement for a bishop to obtain the consent of his colleagues before resigning his jurisdiction.

Given these four fundamental propositions about the Episcopal Church (USA) and its General Convention, several conclusions follow at once about the revisions to Title IV made in 2009, and "effective" July 1, 2011:

A. The changes to Title IV are voluntary -- that is, it is up to each diocese to decide whether to accept or reject them. A confederation is based on a contract among its members. The contract is renewed every time the members agree upon something in accordance with their governing rules. But as is the case with every contract, changes to it need the consent of all the parties. And since the governing agreements do not include a Supremacy Clause, the result is that a party who does not consent to a change cannot be bound by it.

B. If a diocese elects not to adopt the Title IV revisions, there is nothing that General Convention, or the Presiding Bishop, or the staff at 815 Second Avenue, can do about it. The changes to Title IV will simply have no effect in that particular diocese. Again, this is a consequence of two factors: ECUSA's Constitution has no Supremacy Clause, and ECUSA has never established a constitutional court with final authority to interpret the Constitution.

C. Therefore, to speak of the "constitutionality" or "unconstitutionality" of the changes as a whole distorts the real picture. The changes may indeed be "unconstitutional", from any particular diocese's standpoint -- but it is up to each individual diocese to make that decision. And in doing so, that particular diocese is SOVEREIGN -- there is no authority within ECUSA that can force it to accept the changes against its will, or override its decision not to accept them.

I regard the fact that the eight-page memorandum from the Title IV Task Force II nowhere acknowledges these basic principles as a fundamental, and fatal, flaw in its overall reasoning. The memorandum, indeed, proceeds from a point of view which holds that whatever its authors and the staff at 815 decide that General Convention approved in 2009, is thereby ipso facto "final" and "binding" on the collective dioceses. (See the Fourth Proposition above for a refutation of this view.)

Unless and until the truth of the foregoing four propositions is recognized, there can be no real common ground in discussing the propriety of the changes made to Title IV. Those on the left, like the Title IV Task Forces I and II, will think that they are justified in proceeding under the new canons to discipline and sanction those clergy who disagree with them. But those who disagree must take heart in the undeniable facts about how ECUSA came into being, and what exactly is the consequent authority of General Convention.

In this first post, I have not responded to any of the individual arguments advanced by the Title IV Task Force II attorneys. I felt it much more important not to cede the playing field first, and to point out the mistaken assumptions which underlie their arguments and supposed justifications for their proposals. In my subsequent posts, I will address their fallacious arguments head on, and show just how unconvincing, and ahistorical, those arguments are.

[Part II of this series is here; Part III is here.]

Tuesday, February 22, 2011

Newest Canonical Absurdity on the Left

The latest canonical absurdity on the left has been captured and stuffed here in all its grisly green glory. Over at The Lead, an Episcopal priest manages to display, in just two short paragraphs, ignorance of (1) the Dennis Canon; (2) the "accession clause" required to be in diocesan constitutions as a condition of their joining; and (3) what South Carolina actually accomplished at its recent convention:

The Diocese of South Carolina completed its 220th Convention and reports:

Two resolutions, both of which passed at the previous convention, passed again, by more than the required two-thirds margin in both the clergy and lay orders, amending the Diocesan Constitution. The first resolution removed the accession clause to the Canons of the Episcopal Church, and the second, enabled the Convention to meet more frequently than annually, if needed.
The weekend began Friday afternoon with a presentation by the Rt. Rev. Michael Nazir-Ali, former Bishop of Rochester, who now serves South Carolina as Visiting Bishop for Anglican Communion Relationships, on “Triple Jeopardy: The Challenge of Islam, Secularism and Multiculturalism.”

Although the diocese has voted to take out the accession clause from its canons and constitution, the courts have, to date, found that the clause of the National Canons still holds force over the dioceses due to the hierarchical and corporate nature of The Episcopal Church.

The Accession clause:
Title I.7.4 of the Canons of the Episcopal Church in the United States of America.
All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church [i.e., the Episcopal Church in the United States] and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

Regular readers of this blog should have no difficulty responding to the following "Spot the Absurdity" quiz:

1. What does the "Dennis Canon" purport to do?

2. Does the blogger quoted above refer to the Dennis Canon without being aware of it?

3. Does the Dennis Canon have any application to dioceses (as opposed to parishes)?

4. Is the Dennis Canon even relevant any longer to a discussion of the Diocese of South Carolina? Why or why not?

5. What is meant by the term "accession clause" in referring to ECUSA's Constitution?

6. Does the blogger above refer in any way, shape or form to what is called an "accession clause"?

7. Does the blogger above show any understanding of what the Diocese of South Carolina accomplished at its recent Convention?

8. [For extra credit:] How many of ECUSA's current dioceses do not have any accession clause in their constitutions? And how many dioceses of ECUSA have been disciplined for not having them, or have not been counted as members of ECUSA because of that fact?

Responses in the comments can simply cite the quiz question by number, without having to quote it in full. Those commenters who correctly respond to questions by referencing the prior post(s) on this blog which contain the answer(s) to the particular questions asked will receive a special commendation from their host. (You can link to the post using html tags, or else just cite it by title.)

Now, all ye students of the canons -- have at it!

[UPDATE 02/22/2011:] No sooner do I capture and stuff one canonical absurdity on the left than that they go right ahead and post another! This latest absurdity, however, is a big, big bird indeed -- it even has been given its own Website, for heaven's sake -- and hence will require its own series of taxidermic posts in response (not that Mark McCall and Alan Runyon will not do the same, as well). Suffice it to say at this point that the Title IV Task Force II has labored mightily in response to the charges of unconstitutionality, and has brought forth a mouse. (Sorry to have to part ways with you on this, my estimable Fr Tobias Haller, but please do not be so hasty to accept a defense mounted by those with the most vested of interests in being thought right. At any rate, thank you for publicizing the link -- because every Episcopalian needs to read it, and to read the responses posted here and (one assumes) at the ACI.)]

Saturday, February 19, 2011

Alea Iacta Est

"The die has been cast." Today the Convention of the Diocese of South Carolina ratified on final passage the amendments to its diocesan Constitution which spell out that the Canons of the national Church are no longer recognized as binding in the Diocese, to the extent that they are inconsistent with the diocesan Constitution and Canons. The passage was by more than the two-thirds majority required in each of the lay and clergy orders.

South Carolina is thus far the only diocese in the Church to take measures to prevent the changes to the national Canons, which are scheduled to go into effect this July 1, from taking effect within its boundaries. I have explained some of the reasons why those changes are contrary to ECUSA's Constitution in this earlier post: essentially, they extend unprecedented metropolitical powers to the Presiding Bishop, which that office has never been authorized to exercise, and they radically add to the authority of local bishops over their own diocese's disciplinary proceedings.

Three other dioceses have protested the scope of the revisions made by General Convention in 2009 to Title IV of the Canons (having to do with disciplinary proceedings against clergy). Some have called for General Convention to revisit the subject, and scale back the powers granted to diocesans and to the Presiding Bishop. But most dioceses (including my own, alas, which I could not deter) have implemented the changes into their own canons, by making revisions in the disciplinary proceedings and in the bodies that carry them out.

Thus ECUSA heads into a Constitutional crisis of its own making, which its leadership seems determined to ride out, confident that the Executive Council and General Convention will back them up. As with the leadership's current litigation strategy, the course is a very high-risk one for them to take. The first attempt by the Presiding Bishop to project herself into the boundaries of a diocese, by issuing a Pastoral Directive to its bishop, will bring the crisis into focus. If the bishop in question meekly accepts it, then the leadership will be strengthened, and will continue its course with confidence.

But the moment a diocesan bishop rejects the Directive as being unconstitutional, there will be a confrontation in which one party -- either the Presiding Bishop or the bishop of the diocese -- will have to back down. If the Presiding Bishop proceeds to exercise her other new disciplinary powers, leading to her signing a certificate of inhibition, and then asking the House of Bishops to depose the recalcitrant bishop, civil war could erupt in the halls of the Church.

We could end up with a further splintering of factions -- with two persons claiming authority to act as the bishop of a given diocese (one of them installed "provisionally" by the Presiding Bishop, and the other contending that s/he had not been legitimately deposed). Or we could see a vote by the diocese affected to pull itself out of ECUSA, with further consequences as before in the cases of the four dioceses which have withdrawn to date.

What is certain, however, is that the Presiding Bishop will now no longer have a case to extend her reach to the Diocese of South Carolina. Contrary to what those at 815 Second Avenue try to tell you, the canons of the national Church are not binding, ipso facto, on each of the several dioceses. The assembled dioceses of the Episcopal Church (USA), over a hundred years ago, decisively and overwhelmingly rejected a proposal to make General Convention the supreme legislative authority over the whole Church. Since that time, no language of supremacy in favor of the national Church has ever been a part of its Constitution or Canons.

As far as "supremacy" is concerned, the situation in ECUSA today is exactly like that of the relationship between the several States and the Continental Congress under the Articles of Confederation (which also contained no language making the national body supreme): whoever makes a law most recently in time has the last say. Thus, General Convention at Anaheim passed a resolution changing Title IV to give the Presiding Bishop metropolitical authority over all other bishops in ECUSA (i.e., the same total authority which the two Archbishops of the Church of England exercise over their subordinate bishops, or which the Pope exercises over all Catholic bishops and archbishops). But since General Convention's resolutions are not the supreme authority in the Church, they can be overridden at any subsequent time by contrary legislation passed by a diocese. And so South Carolina, for the time being, has the last word -- it has declared the canonical changes made by GC 2009 to have no force or effect within its borders.

Thus, should the Presiding Bishop choose the occasion to make South Carolina an object of her new-found disciplinary powers, she will not have a leg to stand on. Oh to be sure, the spineless bishops behind her may even entertain her pretense of "inhibiting" that diocese's bishop, and vote for a resolution to "depose" the Right Reverend Mark Lawrence from his position. But such a resolution (which almost certainly would not have the requisite majority of "the whole number of Bishops in the House of Bishops entitled to vote") would have no effect in the Diocese of South Carolina -- except that it could encourage dissidents, like the Episcopal Forum of South Carolina, to break openly with their bishop.

The resolution of "deposition" would not, however, be enforceable in any court in South Carolina, and so the result would be a standoff. De facto, South Carolina would no longer recognize the authority of the Presiding Bishop, and de facto, 815 Second Avenue would no longer recognize the Bishop of South Carolina. The result would be a self-induced constitutional crisis, in which every member of ECUSA would be forced to choose sides.

By a process of attrition, the leadership at 815 might eventually reduce ECUSA to just those dioceses and bishops who are perfectly content to let Katharine Jefferts Schori lead them into oblivion and obscurity. But by then, ECUSA will have signed its own death warrant, and will no longer be entitled to claim the exclusive Anglican franchise in North America. (The question is whether the term "Anglican" by then will continue to have any meaning.)

With my perspective as a canon lawyer, I cannot believe that ECUSA is barely four months away from precipitating a wholly unnecessary constitutional crisis, which can only weaken it further, and drive its constituent pieces yet further apart. My appeals to the other canon lawyers who drafted the changes to Title IV, to explain what they thought they were accomplishing, and where they derived the authority to transform the Presiding Bishop of ECUSA into a metropolitan, have gone completely unanswered. At the same time, I see zero inclination on the part of those actually in control of the Church to avoid this donnybrook -- so be it. It must be what they want -- so that is what they will get.

To head deliberately down such a road is madness -- utter madness. But maybe that is what God has in store for the Episcopal Church. I feel myself in the position of a disabled French veteran who watches as Napoleon, just returned from Elba, whips his countrymen into a frenzy to go on the warpath once more -- the warpath that will end in disgrace and defeat at Waterloo. I am powerless to stop it, and can sound only the warning of the folly that lies ahead. The dioceses of the Episcopal Church (USA) are marching down the road that leads to their own destruction, as they blindly follow a leader who has not the slightest idea of the limitations on her authority.

Thursday, February 17, 2011

Is This the Way the World Ends?

President Obama and Congressman Ron Paul (R-TX) join in abandoning Israel to the wolves.

As unrest widens in the Middle East, U.S. foreign policy vacillates between support for demonstrators and appeasement of tyrants.

The reigning philosophy of the political elite is summed up in two pictures.

The Presiding Bishop of the Episcopal Church invites people to spend five minutes in silent meditation, "imagining God saying to each of us, 'You are my beloved, in whom I am well pleased.'" (This is not the first time the Pied Piper has conveyed such a message.)

Meanwhile, the Anglican Communion sunders, the Archbishop of Canterbury converts to Islam (just kidding! but -- ?), and Christopher Hitchens, soon to die of esophageal cancer, lectures a Unitarian minister about what it means to be a Christian.

Those at the helm, by denying that objective values exist, are bereft of any moral, political or social compass. Man himself is the measure of all things, and there are none so blind as those who will not see (that they are blind). I do not say there is nothing being done that is right -- especially (and gratifyingly) by those who have the means. But the impact of what is being done wrong on the national and global scale will, at least for the nonce, engulf all smaller efforts.

In the end, which poet will have been right --

William Butler Yeats?

The Second Coming

TURNING and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?

Or George Meredith?

Lucifer in Starlight

ON a starr'd night Prince Lucifer uprose.
Tired of his dark dominion swung the fiend
Above the rolling ball in cloud part screen'd,
Where sinners hugg'd their spectre of repose.
Poor prey to his hot fit of pride were those.
And now upon his western wing he lean'd,
Now his huge bulk o'er Afric's sands careen'd,
Now the black planet shadow'd Arctic snows.
Soaring through wider zones that prick'd his scars
With memory of the old revolt from Awe,
He reach'd a middle height, and at the stars,
Which are the brain of heaven, he look'd, and sank.
Around the ancient track march'd, rank on rank,
The army of unalterable law.

Wednesday, February 16, 2011

A Not Too Subtle Attempt to Mislead

The Presiding Bishop and her Executive Council are currently meeting in Fort Worth, and while Cherie Wetzel saw a milder, gentler tone to the opening of the meeting in her post just linked, that may well be because of all the recent small victories in ECUSA's camp: it prevailed on its motion for summary judgment in Fort Worth; Bishop Jefferts Schori was "invited to join the Obama administration", as ENS put it; and the Primates' Meeting in Dublin re-elected her to the Standing Committee of the Anglican Communion. It is all the more odd, therefore, that her appearance in Fort Worth was preceded by some unusual shenanigans which seem to have been designed only to mislead, demoralize or confuse the members of one of the larger parishes in Bishop Iker's Fort Worth Diocese.

First, some background:

The first Episcopal services in Fort Worth were held in October 1860. St. Andrew's Episcopal Church, the oldest Episcopal parish in Fort Worth, was founded in 1875, and its current church at 917 Lamar Street was first used in 1912. Arguably, then it could claim title to being the "mother church" of Bishop Iker's Episcopal Diocese of Fort Worth. With a congregation surpassing 1000, it is also one of the largest in the Diocese. Under the leadership of the Rev. R. William Dickson, it uses the 1928 Book of Common Prayer in its services, and was firmly behind the Diocese's decision to withdraw from the Episcopal Church (USA) in November 2008.

Its dissident members who chose to remain in ECUSA now hold evening prayer services every Sunday (with Holy Communion on the first Sunday) on the premises of Trinity Episcopal Church, some five miles to the southwest -- also using the liturgy from the 1928 Prayer Book. With both the Presiding Bishop and the President of the House of Deputies in town, there was an event held Tuesday evening called "An Evening of Reflection and Conversation," at which the audience was afforded the opportunity to purchase any of Bishop Jefferts Schori's three books and have her sign them, in addition to hearing her meditate on the two creation stories of Genesis and to expound on how God's blessing on Jesus at His baptism should be understood as an equivalent blessing upon all those who are "baptized into Jesus' baptism". (If God is so "well pleased" with each and every one of us who is baptized, then why -- no, I decline to go there.)

A week ago, on February 8, Provisional Bishop Wallis Ohl, who is in Fort Worth ministering to those choosing to remain in ECUSA, mailed a letter to the members of St. Andrew's parish -- not the dissident parish, which meets at Trinity, but the parish which is part of Bishop Iker's Diocese. The letter (which you may download and read in full at this link), three pages long, makes absolutely no mention of the fact that those who were addressed meet for services every Sunday in their church at 917 Lamar Street, as they always have, under the leadership of their rector, the Rev. Dickson. No, the letter was written entirely to inform the members of the Lamar Street church about the services held every Sunday evening at Trinity Church, and also to inform them that they could attend the St. Andrew's annual parish meeting to be held following the evening service this past Sunday!

The letter might be seen as a wholly naive, but innocent, attempt to treat both branches of St. Andrew's as really all one big family, especially since it followed so soon on Bishop Ohl's earlier letter written right after Judge Chupp issued his ruling granting summary judgment. It "might" so be seen, I say, but for the bulk of its content, which is a none too subtle attempt to convince Bishop Iker's parishioners that they should cease and desist trying to occupy and use property which does not belong to them. Consider this passage:
Some Episcopalians have been told that if The Episcopal Church prevails in the current litigation that The Episcopal Church will take your place of worship away from you. Let me state plainly -- that is not true.

You will continue to worship at St. Andrew's Episcopal Church using the 1928 Book of Common Prayer. Your parish will continue to operate under the Canons of the Episcopal Diocese of Fort Worth and The Episcopal Church.

Individuals who choose to leave The Episcopal Church cannot continue to control Episcopal Church property, just as if you leave your place of employment, you cannot continue to occupy the property of your former employer and use their name.
It will doubtless come as news to many Episcopalians that their national Church regards them as the equivalent of "employees", and that their parish property, supported solely by their offerings, is actually the property of the national Church. Apart from the fact that the national Church cannot hold title to any property (only its corporate arm, the Domestic and Foreign Missionary Society, may do so), there is the fact that the title to the property of St. Andrew's is actually held by an entirely separate corporation -- the "Corporation of the Diocese of Fort Worth", first organized under Texas law in 1983, and firmly in the control of Bishop Iker and trustees elected by his Diocese. Bishop Ohl's analogy to an employer-employee relationship is entirely misleading and inapt. But the letter continues undaunted, with another blatant misstatement:
The Constitution and Canons of The Episcopal Church (church law) hold that all property is held in trust for the use and benefit of the local diocese and The Episcopal Church.
To see just how false this assertion is, let us compare it to what the Dennis Canon actually says (bold emphasis added):
All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located.
So it is not "all property" in the Church, but only that property which is held "by or for the benefit of any Parish, Mission or Congregation" to which the Canon purports to apply. The property of St. Andrew's at 917 Lamar is not held by St. Andrew's, but by the Corporation of the Diocese. And while the Corporation holds the title for the benefit of the parish, it does so also for the benefit of the Diocese of which the Corporation is an agent. This relationship takes precedence over any implied relationship embodied by the Dennis Canon.

(Explanation for the legally inclined: The Dennis Canon does not spell out any express terms of trust, or duties of the trustee; it simply tries to embody a pre-existing implied trust, which supposedly arose out of the relationship of the parish to its diocese, and the relationship of the diocese to the Church as a whole. The trust on which the Diocesan Corporation took title, however, is a real, express trust, with duties of the trustee (Corporation) toward the parish. The law will give effect to the written terms of an express trust where they conflict with any unwritten or implied trust. So long as St. Andrew's, therefore, remains part of Bishop Iker's diocese, with its land held in trust for it by the diocesan Corporation, the Dennis Canon cannot be enforced contrary to that express trust.)

The rest of Bishop Ohl's letter is the standard chestnut that the Episcopal Church is suing everyone in Fort Worth who disagrees with it in order "to protect the assets built up over 170 years in this part of Texas by generations of Episcopalians for the use of The Episcopal Church so they will be available for use by the great-great-grandchildren of those Episcopalians and for generations beyond." If the parishes had left the Church separately, Bishop Ohl might have a case. Judge Chupp did not grasp the difference between a parish separately leaving and a diocese leaving intact with its parishes. (Similar problems are being encountered with individual judges in the Diocese of San Joaquin cases.) The Court of Appeal should be able, with its resources and a full briefing of the issues, to draw the distinction and rule accordingly.

The problem with ECUSA's approach to the diocese cases (and with Bishop Ohl's rationale) is that it conflates dioceses and parishes under one umbrella: ECUSA itself. To ignore the diocesan entities, however, is a betrayal of how ECUSA itself came into being, through a joinder of already existing dioceses into a confederation, not a single, organic entity into which all the founding and subsequently joining dioceses dissolved. The dioceses were separate when they joined, and remain separate today (as when a majority of them and their bishops have to confirm the election of new bishops). But ECUSA (and Bishops like Bishop Ohl) present themselves to the courts as though the dioceses are mere formalities, instead of the very stuff of the Church itself.

The Reverend Dickson did not passively accept Bishop Ohl's attempt to proselytize and demoralize his parishioners. In a letter to them written February 12th, he wrote:
Last week TEC continued its harassment of the Diocese and our parish in particular.

Bishop Wallis Ohl, who is currently masquerading as the Bishop of Fort Worth under the orders of TEC, sent an absurd letter to St. Andrew's parishioners inviting them to attend their own Annual Meeting latcr in February.

TEC persists in this charade in an effort to confuse the courts and assume control of our churches and our assets. However, be assured that the leadership of St. Andrew's and the Diocese are neither confused nor intimidated.

After more than 100 years, St. Andrew's remains a bulwark of the Fort Worth Diocese under the godly episcopal oversight of the Right Reverend Jack Leo Iker, sound financially, strong spiritually, and conducting traditional orthodox worship and ministry for Fort Worth families.

The conduct of TEC is an abomination; have no fear.

Wednesday, February 9, 2011

What Would Ronald Reagan Have Done?

Clark S. Judge, of the Washington Writers' Group, has published a timely piece at Hugh Hewitt's blog entitled "Egypt: What Would Ronald Reagan Do?" He contrasts the Obama administration's vacillating support for Hosni Mubarak with how Ronald Reagan insisted on treating another former dictator and erstwhile ally, Ferdinand Marcos of the Philippines:
The Philippines is a good case study and the Reagan diaries are a good source. In the diaries, the president wrote two telling notes about crisis in the multi-island nation.

In one note, with demonstrators marching daily against strongman Ferdinand Marcos and the Reagan’s national security council unanimous that Marcos must leave office, Reagan reports telling his advisors that he does not want the U.S. friendly dictator treated shabbily. He does not want a repeat of the way the U.S. treated the Shah of Iran when that regime fell late in President Jimmy Carter’s term.

In fact, the United States ended up providing Marcos and his wife Imelda (a target of popular protest herself) with a house in Hawaii and transit there when Marcos decided that his political standing had deteriorated beyond recovery.

In other words, Reagan opened a back door out of which Marcos could escape with his dignity as in tact as it could be under the circumstance and where he and his entourage could be safe while they decided on where to set up permanent residency.
But President Reagan did not stop there. As Clark Judge goes on to explain, he also sent a clear signal to Marcos that his departure would have to be without any resort to thugs or violence:
In his second diary note on the Philippines demonstrations, Reagan reports telling his staff that any public statement he makes on the situation must include the message that if Marcos resorts to violence, Reagan would be “powerless” to stop a cut off of U.S. funding to the regime.

Note the phrasing. The president did not slap down an ultimatum. He simply reported on a political reality and his ability to respond. So, again, he did not tell Marcos what to do. He did not humiliate the falling leader. In fact, by saying he would be powerless, he positioned the United States in a way that made it acceptable to both parties as a sympathetic and realistic mediator, one who nevertheless favored democratic reform when it could be achieved.
The contrast between then and now could hardly be greater, as the article points out. This is why I cannot understand those who supported Obama's campaign on the ground that he and Joe Biden were "more experienced" than the Republican candidates. For more than two years now, we have been paying the price of their rank inexperience with crucial matters of foreign policy. And the trouble is, their naïveté shows -- and it shows at what is absolutely the worst possible time.

To clinch this point, be sure to go watch the documentary Iranium while you can still do so free online. The movie is very much to the point, and very, very disturbing. (It also shows that not even Ronald Reagan grasped fully what was at stake.) Using rare footage of Iran's rulers speaking to their followers, it unmasks once and for all their aim to achieve worldwide domination for a radical brand of Islam, and documents step by step their progress toward that goal to date. Send the link to your friends: this is one movie not to miss!

Tuesday, February 8, 2011

Fort Worth Judge Modifies Orders; Appeal Delayed

Bishop Iker's Episcopal Diocese of Fort Worth has put up the following statement about the outcome of today's hearing in front of Judge John Chupp of the Tarrant County District Court regarding the orders he signed granting Bishop Ohl's and ECUSA's motions for summary judgment:

Revised order a first step toward appeal

In a hearing today before the Hon. John Chupp, attorneys for the Diocese and Corporation persuaded him to grant all our objections to the Partial Summary Judgment orders he issued Jan. 21. As a result, The Episcopal Church authorities will not succeed in their efforts to force some 6,000 regular Sunday worshipers to vacate their churches any time in the near future – and perhaps never, depending on the results of an appeal of the case. As the appellate process proceeds, the Bishop, clergy, and elected lay leaders will continue to carry out their duties and ministries as in the past.

Responding to one of the most serious concerns raised in the objections, Judge Chupp said that he does not “want to see empty buildings.” He added that in his original orders, all he intended to say was that “the Diocese should be holding property in trust for the national church.”

Attorneys for both sides cooperated with the court in drafting a revised order which will be in effect until final a judgment is signed in March, after the judge returns from a medical leave of absence. Once the judgment is signed, the Diocese and Corporation will pursue their appeal. The judge agreed with attorneys for both sides that the case is ultimately bound for a ruling from the State Supreme Court of Texas.

The parties expect to return to the 141st District Court in about 30 days.
By removing the provisions of the previous orders which would have required Bishop Iker's diocesan Corporation to turn over all its assets within 60 days, Judge Chupp recognized that such a provision turned an order granting summary judgment on a cause of action for declaratory relief only into a temporary injunction, which the plaintiffs had not asked for. (One still has to ask why, if they had not asked for it, they included it in the orders they submitted for the judge to sign.)

Now the case will proceed normally, with about a month's delay for health reasons having to do with the judge. The parties will settle on a form of judgment granting the requested declaratory relief. After Judge Chupp signs the judgment on his return to the bench, Bishop Iker and his attorneys will file an appeal with the Second District in Fort Worth, which heard the previous writ proceedings involving an earlier order made by Judge Chupp.

Once the appeal is filed, and briefing is completed, the Court will probably not schedule oral arguments for a number of more months, due to its backlog. Expect a hearing sometime late next fall or winter, with a decision issued sometime in the first part of 2012.

[UPDATE 02/23/2011: A link to download the revised order signed by Judge Chupp is here. It contains a few more puzzlements, however. By ruling that the changes made to the diocesan constitution and canons were null and void, the order opens up a can of worms: if the Court can pass on the validity of the acts of a diocesan convention, then it can rule also that the acts of the "Special Convention" held in Fort Worth in February 2009, and convened not by the ecclesiastical authority of the Diocese as required by its Constitution, but by the Presiding Bishop, were "null and void" as well. The effect of that ruling would not be to reinstate Bishop Iker as the Bishop of the Diocese, because ECUSA will argue that he was lawfully deposed (although again, there is nothing now to stop Judge Chupp from reviewing the validity of his illegal deposition, as well). However, it would mean that a majority of the parishes which support Bishop Iker would again be in control of the Diocese, and they could meet to fire the attorneys and have the lawsuit dismissed!

The ruling ends with a nonsensical statement "when this order becomes final and appealable" -- the last word has to read non-appealable if it is to make any sense. In other words, the command in the order to the defendants not to hold themselves out as the leadership of the Diocese would go into effect only if the order is upheld on appeal. That, for reasons discussed in other posts, is not very likely.]

Monday, February 7, 2011

What Is Wrong with ECUSA's Financial Numbers?

The Finance Office of ECUSA has put online a preliminary December 2010 year-end statement. It permits a first look at how well ECUSA performed relative to its budget adopted for 2010. Taking the numbers at face value (something which the numbers themselves will not let us do, as discussed below), one can arrive at these preliminary observations:

Stated 2010 Revenues: $ 40,977,763
Stated 2010 Expenses: $ 36,086,557

Net Book Surplus for 2010: 4,891,206

Ordinarily, one should be proud of producing a budget surplus of nearly $5 million, right? Now, dig a little deeper. There is much more there than meets the eye.

For example, the numbers for Episcopal Migration Ministries (EMM), which underwrites refugee relocation services across the country using State-Department-supplied subsidies, show a net $3.3 million-dollar loss:

EMM 2010 Revenues: $ 10,317,561
EMM 2010 Expenses: $ 13,624719

Net EMM Loss for 2010: $3,307,158

This loss knocks total combined operating surplus down from $4,891,206 to just $1,584,209. And if one looks at the figures for just the Church's mission programs, we see where this "surplus" came from:

Church Mission Budget for 2010: $ 17,101,678
Actual Mission Expense in 2010: $ 15,482,522

Budgeted but not Spent in 2010: $ 1,619,156

So it is easy to show a surplus of $1.6 million if you simply do not spend that money on mission as planned.

Never fear, however -- true to form, there were no cuts for legal expenses incurred in 2010, but instead a cost overrun of $86,833:

2010 Title IV and Legal Assistance to Dioceses: $ 1,489,833
2010 Budget for Title IV and Legal Assistance: $ 1,403,000

The resulting message is clear: to keep our lawsuits going, we will slash mission to the bone!

This is, however and alas, not the whole story. For as mentioned earlier, the numbers presented are not to be trusted at this point. There is an unexplained gap of over $1.3 million in the total EMM revenues shown as of the year end, and the month-by-month figures reported during the year. That is to say, as shown above, the year-end statement reports cumulative EMM revenues for the previous twelve months of $10,317,561. But if you go back to the previous month-by-month reports, and add up all the revenues for EMM shown in each month, the total comes to just $ 9,008,423. So where did the extra $1,309,138 shown at year-end come from?

By comparing the year-to-date totals shown on the monthly statements, one can trace the discrepancy to the July statement. As of the end of June 2010, EMM revenues year-to-date totaled $4,831,285. Revenues shown as received in July 2010 are $1,147,900. So the year-to-date total through the end of July should have been the sum of those two figures:

EMM revenues through 06/30: $4,831,285
EMM revenues, month of 07/10: 1,147,900

Total, 01/01/10 to 07/31/10: $ 5,979,185

Actual figure shown for YTD: $ 7,288,322

Discrepancy between the two: $ 1,309,137

This money just "showed up" in a revised cumulative total for the first seven months, without bothering to revise any of the earlier monthly totals. The only explanation I can surmise at this time is that $1.3 million in EMM revenues were booked in January and/or February 2010, because for an unexplained reason, the statements for those two months are not available online. However, if one looks at the March 2010 statement (the first one available for 2010), one sees that the EMM revenues for that month and the year-to-date figure for EMM revenues are identical -- meaning that there had been no EMM revenues booked in January or February.

So perhaps there is an explanation -- but it is still unsettling to have to call for it, especially in light of the other irregularities in the EMM numbers from month to month. All told, there were four months (January, February, October and November) in which there were ongoing EMM expenses, but zero EMM revenues. (Is the Obama administration that slow in doling out reimbursements? Perhaps.) But there were also two months in which EMM "revenues" were negative: $163,945 in June, and $889,929 in September. Did ECUSA really have to pay back so much money to the government in those months? (Or did Obama's checks bounce?) If so, what is wrong with the EMM billing program, and why was EMM itself running into ECUSA's reserves to the tune of $3.3 million last year? (In previous years, it ran a small deficit -- probably due to a time lag in receipts versus expenses -- but 2010's is the largest deficit by far.)

There is a similar unexplained discrepancy in the line item for "Other Income." (Since no such income is budgeted, its nature is also a mystery.) The month-to-month totals for this item equal $157,117 -- but the final year-to-date figure shown is $295,972. It certainly must be nice when you can make money simply grow like that, out of thin air, just like the Federal Reserve.
(For anyone who wants to do further spade work, email me and I will send you the spreadsheet I have constructed combining all of the monthly figures.)

[UPDATE 02/09/2011: I have confirmed with ECUSA's Finance Office that when amounts are adjusted for any past month, they do not revise or update the online version previously posted for that month -- they simply update the figures in all the statements from that point forward. So that is why the cumulative totals do not match the year-end figures -- they are not really "cumulative", but represent the information known only as of the end of that particular month.]

All in all, the figures present an unsettling picture. They show an institution which puts litigation and discipline expenses (wasn't all that money spent on +Bennison's trial and appeal worth it?) above church and mission, and which relies heavily on government subsidies for operating capital -- but which latter sums did not materialize last year, and instead turned into a financial drain. And what is perhaps worst of all, they show a sharp drop in diocesan contributions toward the end of the year:

Budgeted contributions from dioceses (12/10): $2,361,500
Actual contributions received, December 2010: $1,394,561

Shortfall in expected contributions for 12/2010: $966,939
Shortfall in expected contributions for all 2010: $1,203,448

This shortfall was only slightly offset by a surplus of $216,412 in budgeted investment income for the year. Most of the rest of the operating "surplus" was achieved by cutting way back on budgeted expenses.

A final thing to note is in the budget category called "Finance", whose major component is "Debt Financing and Repayment." There were some months in 2010 for which no amounts at all were recorded in the latter category (e.g., July and October), but in December 2010 the monthly amount skyrocketed from a previous average of about $143,500 to $668,476 -- nearly five times as much. Perhaps this was in connection with the new mortgage taken out, as discussed in this previous post.

The audited statements for 2010 will not be out for a few more months yet. (One hopes that they would clear up the current discrepancies, but unfortunately, they are presented in an entirely different format.) Meanwhile, no minutes are posted on ECUSA's website of the Audit Committee, or even of the Executive Council, so there is no way to tell who is minding the store. (Canon Harris, if you read this, I hope you can get someone at 815 to respond.)

The year-end decline in diocesan contributions mirrors what I know from my own experience in pledges received at the parish level. 2011 will not be a banner year for church contributions. But if any adjustments are due in ECUSA's finances as a consequence, those of us in the pews will be the last ones to know.

Wednesday, February 2, 2011

Appellate Court Affirms Pittsburgh Trial Court

A copy of the decision by the Commonwealth Court of Pennsylvania in the Pittsburgh litigation has just reached me. For the time being, you may read it here, or here. I have only glanced through it enough to see that it rejects all of the appellants' points on appeal, one by one:

1. It holds that although it was not standard practice for them to do so, Calvary Church was not violating Pennsylvania procedure by seeking enforcement of its 2005 stipulation and order settling the case by a supplemental petition, rather than by bringing a separate action. (When an appellate court overlooks a procedural violation to reach the merits of a case, you know -- if you were the one raising the point of procedure -- that you are in trouble.)

2. It agrees with Judge James's reading of the language of the stipulation as being "unambiguous" -- but shows by its defense of that point the precise ambiguity of which the appellants complained. (It is elementary contract law that the formation of a binding contract requires a "meeting of the minds." Although the court asserts that there is "extrinsic evidence" to support the trial court's finding that both parties agreed on what the stipulation meant, it cites only evidence and testimony from Calvary's counsel as to what he meant by inserting the language in question.)

3. It holds that Judge James did not err in receiving evidence to show that the faux diocese of Pittsburgh was "recognized" by ECUSA, even though the parties had agreed not to question or argue over the validity of the Diocese of Pittsburgh's withdrawal.

4. Finally, it rejects the appellants' argument that Judge James's order was defective for ordering people who were not parties to the action (e.g., the diocesan corporation, which actually holds the titles) to hand over property. It holds that since Bishop Duncan's diocese is a party, it can see that the order is obeyed.

The opinion specifies that it is to remain an unpublished one, so it will not set any precedent for other cases in Pennsylvania (or elsewhere). That is why it does not devote all that much discussion to the issues, important as they are for those involved. And the result once again bears out the haphazard nature of litigation -- you can devote hundreds and hundreds of hours, and hundreds and hundreds of thousands of dollars, to it, but it all comes down in the end to what, in this case, three justices (who might spend at most four or five hours on the case) think.

From this point, the only alternative open to Bishop Duncan and his Diocese is an appeal to the Pennsylvania Supreme Court, which does not have to hear the case if it so chooses. The Diocese has not indicated if it will do so; the points that could be urged will have to be carefully evaluated first.

Tuesday, February 1, 2011

A Parish May Buy Its Independence -- but at What Cost?

First, let me quote the press release issued by Archbishop Duncan's office, which is all there was, at first (H/T: Transfigurations; bold emphasis added):
The Anglican Church in North America expressed sadness over a proposed church property settlement involving St. Philip’s Church in Moon Township, Pa. In addition to paying a substantial fee to the local Episcopal Church diocese to remain in their worship space, the proposed settlement requires St. Philip’s to sever ties for at least five years with the Anglican Church in North America, the Anglican Diocese of Pittsburgh and Archbishop Robert Duncan.

In addition, the Episcopal Church diocese has insisted that St. Philip’s agree that if it starts any new churches over the next five years they cannot be Anglican. The congregation is scheduled to vote on the settlement this evening, Tuesday, February 1. The settlement will then go before the Allegheny Court of Common Pleas.

“It is heartbreaking that even if they agree to pay a substantial settlement fee to keep their buildings, members of St. Philip’s are also being forced to separate from their Anglican family as a condition of the property settlement. Freedom of religion is at the heart of this matter and no congregation should have to stipulate that it will separate from its current body as part of a monetary property settlement,” said the Most Rev. Robert Duncan, Archbishop and Primate of the Anglican Church in North America and Bishop of Pittsburgh.

“Sadly, the separation mandate seems to be specifically designed to hurt both the local diocese and the North American province. If the settlement is approved by St. Philip’s, we urge the Court to strike any provisions of the settlement that abridge First Amendment rights.

“We support the people and clergy of St. Philip’s as they face into this painful decision. It is our sincere hope that The Episcopal Church will stop these abusive and unconstitutional practices so that St. Philip’s can move forward with its mission and ministry. The desire of the Anglican Church in North America is simply to hold fast to the teachings of Scripture, reach North America with the transforming love of Jesus Christ, and serve those in need,” Archbishop Duncan concluded.
At Anglicans United, Cheryl Wetzel adds a few tantalizing details:
Apparently this has gone through arbitration and now it is up to St. Philip's people to decide how essential/valuable this building really is to them.

And we get a lot more from this article in the Pittsburgh Post-Gazette, which promises "more details tomorrow" (again, I have added the emphasis):
Members of St. Philip's Church in Moon will vote tonight on a proposed settlement with the Episcopal Diocese of Pittsburgh that would allow them to keep their property but would also require them to cut ties with the rival Anglican Diocese of Pittsburgh for at least five years.

The Rev. Eric Taylor, rector of St. Philip's, said the proposal was the best option for his parish. Since the 2008 split in the original Episcopal diocese, the property of dozens of parishes that voted to leave the denomination and follow Archbishop Robert Duncan into the new Anglican Church in North America has been tied up in litigation. The settlement would leave St. Philip's independent.

"I'm happy for the opportunity to negotiate an agreement, given the current climate. What's gone on [between the dioceses] has been mostly beyond my control. I am in favor of the proposed agreement," Rev. Taylor said.

The building was designed to accommodate the evangelical church's outreach to children and youth in the Moon area, he said. But he noted that now-Archbishop Duncan had been instrumental in helping the parish develop its ministry prior to the split.

"Our commitment is to the people in Moon Township. Our commitment is to the kids and families we care about, to tell them about Jesus. That's my first concern. I think it's my first responsibility, be it Anglican or Episcopal or independent," Rev. Taylor said.

The proposal also includes a financial settlement, but none of the parties would name the amount. St. Philip's website doesn't identify the parish as either Episcopal or Anglican, but stresses its involvement in 3D Ministries, an interdenominational alliance of evangelical congregations for mission and spiritual growth. About 400 people attended services last weekend, Rev. Taylor said.

The Anglican Diocese of Pittsburgh, which released a broad outline of the proposed settlement yesterday, argued that the requirement to break ties was a violation of the First Amendment right to freedom of religion. The settlement must be approved by the Allegheny County Court of Common Pleas.

"Sadly, the separation mandate seems to be specifically designed to hurt both the local diocese and the North American province [the Anglican Church in North America]," Archbishop Duncan said. "If the settlement is approved by St. Philip's, we urge the court to strike any provisions of the settlement that abridge First Amendment rights."

Rich Creehan, communications director for the Episcopal Diocese of Pittsburgh, said that future settlements with other parishes would not necessarily require separation from the Anglican diocese and Anglican Church in North America.

If other parishes of the Anglican diocese want to negotiate, "there is no template of what's needed to reach an agreement," he said. "This was an amicably reached agreement . . . It was a voluntary negotiation, carefully conducted over the course of a year."
There is more about the 3D Ministries and their program at this site. The article is correct that you will find nothing on St. Philip's website which identifies it as either Episcopalian or Anglican.

Archbishop Duncan is right to be concerned about the First Amendment implications of this proposed settlement. The conditions being imposed appear to violate the right of St. Philip's to exercise its religion freely, as the First Amendment guarantees. But do not necessarily count on the Allegheny Court of Common Pleas to appreciate that point. After all, it made a ruling that the attorneys for an entire diocese could stipulate, on its behalf, to a requirement that it remain part of the Episcopal Church (USA) as a condition of its keeping title to all its property. (It is that ruling, still on appeal, which led to the current uncertainties in Pittsburgh.)

However, any such violation simply means that no federal or State court would enforce the agreement if the Episcopal Diocese of Pittsburgh were to take St. Philip's to court to keep it from affiliating with ACNA, or from planting an "Anglican" church. (In light of what is pointed out in this post, I wonder how the agreement can have an airtight definition of the word "Anglican." I don't see how the concept can be pinned down just now. Maybe that realization, however, is in part the reason for the dissatisfaction with all the ongoing church quarrels which I read between the lines of the story. St. Philip's appears to be saying: "Enough of your fighting -- let's just get on with our call to bring the ministry of Christ to the people who hunger for Him.")

That the agreement may be unenforceable under the First Amendment does not mean that the parishioners of St. Philip's may not enter into it if that is what they decide is their best (or only) option. The sad thing is that things have come to such a pass that such an option is all that remains to them, or may be, at any rate, the best alternative.

The question which all these considerations bring foremost to mind, in my view, is this: why would any Christians, anywhere, insist on binding their fellow worshippers to such an agreement? In the answer to that question lies the essence of St. Paul's message about why Christians should never go to court against each other.

[UPDATE 02/02/2011: The vote by the parish on Feb. 1 was to accept the settlement offered them, including an acceptance of its onerous conditions for the next five years. To have to kowtow to such unenforceable requirements must demonstrate the degree to which ECUSA's unrelenting tactics in Pittsburgh to date have borne fruit. Peace at such a price must be dear; only those who must actually pay it, however, are qualified to say by how much. The shame of those who would exact the price is noted in sadness, in the hope that any more such attempts to exploit the situation might be fruitless.]