Wednesday, April 20, 2011

It's Not Enough to Defile the Canons; Let's Trample on the First Amendment, Too!

Word went out yesterday through the Anglican blogosphere that another church had reached a settlement in the Virginia litigation, just six days before the start of the scheduled trial involving originally nine parishes in the Anglican District of Virginia (ADV). This time it was the Church of the Word, in Gainesville, led by its pastor, the Rev. Robin Adams. With this settlement, the number of parishes going to trial next April 25 is down to seven.

The settlement is the second announced in the Virginia litigation; earlier, the Church of Our Savior, in Oatlands, announced a settlement on February 20. But it is overall the fourth such settlement in the ongoing property disputes between ECUSA and departing dioceses and their congregations -- two earlier settlements were announced with regard to parishes in the former Diocese of Pittsburgh. (See this earlier blog post about the first of them.)

It is a good and joyous thing when Christians can manage to settle their disputes out of court, among themselves, as St. Paul so strongly admonished them. However, St. Paul would never have given his sanction to the four settlements reached thus far.

Instead, the abuses of their power by those in control of the Church (and of their puppet dioceses who march to 815's tune), as reflected in the obnoxious and illegal terms exacted from their opponents, should be unanimously condemned, whether by today's Christians or by those in the time of St. Paul. For each of the settlements thus far announced has in common an unusual and highly suspect demand: the settling parish must agree to disaffiliate itself from (or at the minimum, not contribute to) the groups which withdrew from ECUSA, and must agree to remain so disaffiliated (or non-contributing) for a term of up to five years. (In the case of the Church of Our Savior, in Oatlands, the parish agreed to disaffiliate from ADV and remain thus separate for the duration of its continued occupation of its property, which was guaranteed for at least five years. The Church can end the restrictions on thirty days' notice, by abandoning the property and moving elsewhere.)

For the Presiding Bishop and her hand-picked counsellors, requiring the settling churches to dissociate from, or become non-contributors to, their chosen affiliations is just so much more salt to be rubbed into the wounds they have thus far managed to inflict in the bruising litigation they have maintained to date. If they can thereby cause pain and anguish among the dissenters, then that is their dearest wish -- in order to intimidate any who might be tempted to follow in the dissenters' path. And if they can at one and the same time weaken and undermine what they call "the competition", then they deem their despicable marketing model to have been to that extent advanced (as if the very idea of a church being "in the market", or "in competition", made sense of the Gospel).

The pattern of abuse of power so exhibited by 815 and its attorneys should now be unmistakable to readers of this blog. How any member of any local Episcopal church could continue to support or enable such abuses must be a matter of being either ignorant of them, or deliberately misinformed. (All it takes is a word to your church treasurer to keep your donations from being sent to the diocese, which in turn sends a portion of its money to the national Church.)

In the United States, we are proud of many things that have come down to us from our forefathers. Not the least of these things are the law and the traditions embodied in the First Amendment. Consider afresh its forty-five words, while I emphasize in bold italics the part that everyone on the side of 815 seems to have forgotten:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Now to be sure, this is a prohibition upon Congress (and later upon each State, thanks to the construction given to the Fourteenth Amendment by the Supreme Court). It applies to the terms of a private settlement between adversaries in court, however, through what lawyers know as "the law of contracts."

The settlements between ECUSA, its local dioceses (rump or legitimate; the courts are not interested in how they came to be), and the parishes are a form of private contract among the settling parties. A written contract consists of terms of agreement expressed in a writing that is signed by all the parties who are thus agreeing upon something. It is thoroughly a private transaction -- until one of the parties tries to enforce its terms in court.

If the contract is fully performed on both sides and no party has anything to complain about, then all is well and good; the parties move on to other transactions without ever having to involve the courts. But if a party refuses to perform one or more of his promises in the contract, then local courts in each State have jurisdiction to hear the evidence and ultimately decide which party is in the right, and which is in the wrong (and which must either perform as per the original promise, or else pay damages).

However -- and this is a huge qualification on the courts' powers to enforce private contracts -- the First Amendment of the United States Constitution absolutely prohibits any court, State or federal, from enforcing any contract language which would restrict a citizen's free exercise of his or her religion. By long-established court precedent, the First Amendment includes protection not only for individual and collective worship in accordance with one's preferences and beliefs, but also for the freedom to associate with other individuals and groups of one's choosing.

Now you should be able to see the constitutional problem with these so-called "settlements" by parishes with ECUSA and its puppet dioceses. Exploiting their superior bargaining position (because they have the money -- by appropriating trust funds long ago donated to the Church for its "mission" -- to outlast most of their opponents in court), 815 and its attorneys demand that the settling parish agree not only to withdraw from its preferred religious affiliation, but to refrain from associating in any way with it for the next five years.

Never mind the shallow pretense that the Pittsburgher Episcopalians themselves are directing the lawsuit there, and hence dictating the terms -- though I am sure that they are happy to include them. Never mind also the rank hypocrisy in the Presiding Bishop's claiming that she cannot allow the heritage of long-ago gifts to the Church to be transferred away for nothing, while at the same time she is not above dipping into those same long-ago gifts to pay her Constitution-despising attorneys to go after every departing parish. Hypocrisy rolls off the Presiding Bishop like water off a duck's back. For now, just focus on the sheer barbarity of the terms the Pittsburghers and Virginians demand, with the Presiding Bishop's full blessing. They are the antithesis of what it means to be a follower of Christ, and instead are drawn from the cutthroat world of commercial transactions.

These so-called "agreements" are modeled on contracts for the sale of a business, in which the owner/seller contracts with his buyer that he will not start up a competing business in the same area within a specified time period, usually no more than three to five years. In that way, the buyer will have a fair chance to realize value from the goodwill built up for the business over the years the seller has owned it, without having to worry about the seller trying to lure away customers on whom the success of the business depends.

But a church is not a commercial business, and to speak of "competition" from another church is fundamentally to misunderstand the Great Commission to spread the good news of the Gospel to all the world. This is why the approach of 815 to these parish-diocese "settlements" is so fundamentally wrong. The Presiding Bishop may well think she, and the Church which she heads, are "in competition" with those who offer the traditional faith to followers, but she could not be more mistaken. The Episcopal Church (USA) as led by the Most Reverend Katharine Jefferts Schori offers nothing that is in competition with traditional churches. She, and they, are blind to that obvious fact, however -- as witnessed by their repeated insistence on constitutionally unenforceable terms of settlement.

In Virginia, the Church of the Word, and the Church of Our Savior, would be fully within their First Amendment rights if they should defy the written terms of their settlement agreements, and re-affiliate with the ADV immediately after signing them, or whenever they so chose. Neither ECUSA nor the Diocese of Virginia could get any State or federal court to enjoin such an affiliation, based upon the written settlement contract. The First Amendment, as I say, absolutely prohibits any State or federal court from enforcing any such blatant restraint on the free exercise of a group's right to associate as it deems fit in the practice of its religion. A party who makes such an illegal bargain will receive no help from the courts in enforcing it.

The Episcopal Church (USA) is acting like the proverbial bully who knows what he can get away with because there is none to challenge him. No one who still calls themselves Episcopalian should countenance such un-Christian behavior, let alone give money for it. Do you want to be identified by a Church which is known only for its lawlessness? Those who remain supportive might ponder these words of Jesus from Matthew, ch. 24:
24:10 Then many will be led into sin, and they will betray one another and hate one another. 24:11 And many false prophets will appear and deceive many, 24:12 and because lawlessness will increase so much, the love of many will grow cold. 24:13 But the person who endures to the end will be saved. 24:14 And this gospel of the kingdom will be preached throughout the whole inhabited earth as a testimony to all the nations, and then the end will come.


  1. I disagree on your advice to tell the treasurer that one does not wish any of one's tithe to go to the diocese. Money is fungible. If the parish must pay a certain amount to the diocese each month, then maybe it comes out of others'donations, and yours goes towards the light bill. At the end of the day the diocese still has the same amount of money they wanted.
    To be effective, the whole parish would have to withhold money from the diocese.

  2. Carolyn, it's a necessary start. If enough people in a parish tell their treasurer not to send any of their pledge money to the diocese, the parish will pass the message along to the diocese. But if no one begins to do so, things will never change.

    Alternatively, concerned parishioners could set up a separate trust account for their pledges, and make payments for the church's bills out of that. The effect of that arrangement will be to reduce parish income on its books, and thereby reduce its diocesan assessment.

  3. Your second idea is a good one. It's a little more trouble in the beginning, but would be more immediately effective.

  4. Many parishes have funds (memorial funds, organ funds,etc) to which people can contribute without their money going to the diocese. My mother did judy that for many years when she found herself in a parish she liked in a diocese she did not. Fortunately, my diocese gives a minimal amount of money to 815.

    SC Blu Cat Lady

  5. One of your finest articles ever !

    Thank you so very much for standing up for all of us and exposing the sitution for what it is !!!

  6. If the churches that have agreed to the five year non-compete clause, endure those five years, I think the PB's successor will inherit a stronger competition as those churches join together five years from now.

  7. Dear Mr. Haley,

    You write: "How any member of any local Episcopal church could continue to support or enable such abuses must be a matter of being either ignorant of them, or deliberately misinformed. (All it takes is a word to your church treasurer to keep your donations from being sent to the diocese, which in turn sends a portion of its money to the national Church.)"

    Roughly six months prior to my resigning from my Episcopal Parish and from ECUSA at the end of September 2008, I asked the Rector of my parish whether there was any process whereby I could keep the entirety of my pledge from being sent to TEC. I was essentially informed that the Bishop would not tolerate any such action, and realized that my Rector would not allow a challenge. I also realized that while ceasing to pledge would keep my tithe from going to the National church, it would also prevent me from being a parishioner in good standing.

    Clearly, the two parishes in Virginia are not in an analogous situation. Nevertheless, that conversation was the catalyst which eventually resulted in my beginning a journey that would lead across the Tiber some 2½ years later.

    So, my experience suggests that it may not be everywhere as simple as you are suggesting for an Episcopal parishioner to simply talk, or even providre a written request, to the parish Treasurer.

    Pax et bonum,
    Keith Töpfer

  8. Point taken, Martial Artist -- but it would be well for everyone to remember that in law, the donor controls the terms of the gift, not the donee. What the pastor told you was what he wanted you to think, and not what he actually had any legal power to do. If your Church could not accept the terms of your gift (that no part of it go to ECUSA), then its only option was to decline to accept your gift, and not to take it and then disregard your instructions.

    If a standoff results -- as seems to have eventually happened in your case -- then I would recommend that, as I say, any such parishioners with similar strong feelings open up a trust account at a local bank for the parish, and notify your parish that you are depositing all your pledges there until further notice, and that you will be happy to use the account to pay proper parish bills. They can hardly refuse the terms of your gift then -- but if they do, then "shake the dust off your sandals" and depart for a more accommodating church, exactly as you eventually did.

    The one thing that must not happen is to allow this lawless enterprise to keep thriving on innocent parishioners' money. Since it will not listen to the law, or follow even its own canons, it must be starved until it sees the light.

  9. Just a bit of information: St. Luke's Anglican and sister churches in Akron Ohio lost to the Episcopal diocese of Ohio from a case decided in Cleveland last Monday. No terms have been decided yet. St. Luke's is about to be consecrated as the pro-cathedral in the Great Lakes diocese, CANA, Anglican Communion.

  10. Thank you Mr. Haley for this excellent article that doesn't hesitate to call this disgraceful what it is - disgraceful, wrong and evil.

    Your suggestion on how to deal with this is something I've been practicing now for the last 5 years. I only give to the Memorial Music fund of my Parish where the funds are restricted to be used in enhancement of the worship of the parish. I pray all concerned Episcopalians would do the same or take your suggestion.

    All Blessings

  11. sojourner, thank you for your comment here. It is incomplete, however -- it fails to note that the decision is at the initial level, by an Ohio local court. As such, it sets no precedent; nor is it guaranteed to be upheld on appeal. As we who are involved in Church litigation know all too well, these things take time -- and while you may lose some, you also may win some in that fullness of time. In the final analysis, only Jesus Christ will judge which church and its followers were faithful to His call. While I can use my training to critique the decisions of earthly judges, I do not pretend in any way to be the final word. So, please -- take whatever you read about the legal ups and downs, whether here or elsewhere, with a very large grain of salt.

  12. I know this is a little late, but I just saw the post.

    Thank you for discussing these issues.

    Do you remember a few years ago when the PB was talking about selling disputed properties, but refusing to sell to the departing parishioners, and also including in the sales contracts a prohibition on buyers re-selling to departing parishioners? I had similar concerns about that, as I'm pretty sure discrimination (e.g., based on religion) in real estate sales is prohibited. Yes, if no one complains to the gov't, nothing will happen -- but if someone does complain...