Judge Orders Removal of Good Shepherd's Rector, Two Vestry Members

In a final order entered on August 25, 2011, Judge Stanley Ott of the Court of Common Pleas of Montgomery County (Orphan's Court Division), Pennsylvania, has ordered that the Rt. Rev. David L. Moyer and two members of the vestry of the Church of the Good Shepherd in Rosemont, a suburb of Philadelphia in the Diocese of Pennsylvania, be removed from their offices. The order carefully sorts through the claims made on both sides of this tangled affair, which began in 2002 with a doctrinal dispute between Father Moyer and his then bishop, the Rt. Rev. Charles E. Bennison, Jr. Eventually, Bishop Bennison resorted to the ill-advised use of the Abandonment Canon for Clergy to "depose" Father Moyer from office without the necessity of a presentment or trial.

Father Moyer sued Bishop Bennison in civil court for fraud in removing him without due process under the canons, and surprisingly, the civil court allowed the case to go forward. But it resulted in a jury finding that Bennison had not committed any fraud, and the case was dismissed. Then Father Moyer turned on his trial attorneys and sued them for "malpractice." That suit, too, was eventually dismissed, and Father Moyer and his second attorneys ended up on the receiving end of a malicious prosecution complaint.

Meanwhile, over at the Diocese of Pennsylvania, Presiding Bishop Jefferts Schori inhibited Bishop Bennison after charges were filed against him for protecting his younger brother, a former Episcopal priest who had briefly worked under him, from claims of sexual predation by failing to act on them, or to report them to any superior. His inhibition prevented Bishop Bennison from heading up the lawsuit filed against Good Shepherd in the current case before Judge Ott, which was brought instead by the Standing Committee, acting in its role as the Ecclesiastical Authority while Bishop Bennison remained under inhibition.

One curious fact about Judge Ott's decision is that while it describes the lawsuit between Father Moyer and Bishop Bennison, and refers to its outcome, it makes no reference at all to the subsequent proceedings against Bishop Bennison, which disqualified him from bringing suit in the name of the Diocese. As is well known, the Court of Review for the Trial of a Bishop finally dismissed, on pure statute of limitations grounds, the charges against Bishop Bennison in August of last year, and vacated his sentence of deposition. Although this had the effect of reinstating him as the diocesan of Pennsylvania, there was no move made to substitute him into the lawsuit -- perhaps because relations between the Bishop and his Standing Committee, to say nothing of his Diocese itself, remain very strained.

Instead, the decision by Judge Ott describes matters as they stood when the current lawsuit was amended in early 2010: without any diocesan bishop to act on behalf of the Diocese, the Standing Committee had granted to the Rt. Rev. Rodney R. Michel, assisting bishop, the authority to act for the time being as a Diocesan. For Judge Ott, however, the only relevant history of which he can take cognizance is the earlier deposition of Father Moyer:

Turning to the motion for summary judgment, we perceive the pivotal fact to be the deposition of respondent Moyer which the respondents acknowledge to have taken place. (Response to Motion for Summary Judgment, par. 2.) Under the rule of deference, by which civil courts do not adjudicate controversies involving the internal governance or administration of religious organizations, this Court clearly can not inquire into the propriety of this action. Another matter on which this Court will not rule is whether one ordained by a branch of the Anglican Church can be deemed to be an Episcopal priest. . . .

At initial oral argument on the motion for summary judgment, Father Moyer's attorney tried a delaying tactic, by arguing (contrary to interest, it would seem!) that the "national Church" had a "trust interest" in the Church of Good Rosemont property (i.e., under the Dennis Canon), and that it should be afforded an opportunity to intervene in the proceedings to protect that interest. (I fail to see how that point resulted in anything but a few months' delay. It surely did not advance the interests of Good Shepherd itself.) But after being consulted, ECUSA notified the Court through the Diocese's attorneys that it did not need to intervene, and so Judge Ott proceeded to his decision.

Given Fr. Moyer's admitted "deposition", no matter how illegal under the canons, the only conclusion Judge Ott could reach under these facts was that Good Shepherd cannot both remain a parish of the Diocese of Pennsylvania and employ him as their rector:

On the sole question of whether or not the Diocese can ask this Court to force the respondents out of Good Shepherd, the answer is clear. Their eviction, literally and figuratively, is the will of the petitioning Standing Committee and Assisting Bishop. Their decision is the result of the parties' divergent views on ecclesiastical questions and this Court can not get entangled in those controversies. The resolution of the Standing Committee dated November 6, 2002, authorized the Bishop "to take all steps reasonably necessary to secure the property of Good Shepherd for the use of the Episcopal Church." (Exh. H. to amended petition for declaratory judgment.) The respondents argue strenuously that the present action was filed prematurely because the petitioners did not follow the resolution's directive that the Bishop "endeavor to seek an amicable resolution to the disputes with The Church of the Good Shepherd, Rosemont, in order to restore the Parish and the Diocese to that unity which is ours in Christ" before moving against the respondents. Clearly, the members of the Standing Committee, as they are petitioners herein, have determined this "condition" to be impossible of fulfillment, a conclusion that would seem inevitable in light of, inter alia, the aforementioned civil case tried in 2008 between respondent Moyer and the then-Bishop.

In Judge Ott's eyes, Bishop Michel is the bishop who is asking for the removal of Father Moyer (and his supporting vestry members) from their offices. Nevertheless, there is a paradox here. The key resolution of the Standing Committee expressed the condition that, before seeking the officials' removal, the bishop "endeavor to seek an amicable resolution" of the disputes. The Court takes note of the fact that any rapprochement was probably incapable of being reached between Father Moyer and Bishop Bennison, in light of the lawsuit between them, but what about between Father Moyer and Bishop Michel? Was there any proof of the fact that he tried first to resolve the dispute, before seeking judgment? If there was, the court does not mention it.

And the two vestry members appear to have been swept out of their offices by the tide that removed Father Moyer. There is no analysis by Judge Ott of any separate authority of the Bishop of Pennsylvania to remove vestry members, or of any determination by either Bishop Bennison or Bishop Michel that the two members were unfit to serve. Instead, the Standing Committee's Petition simply alleged, in conclusory fashion, that as a result of their support and employment of Father Moyer, the vestry members "have 'rendered themselves ineligible to be members of the congregation, to vote on matters relating to the parish, or to hold office or exercise any authority on behalf of Good Shepherd.'" (This is another example of the "ejectment seat" theory of vestry malfeasance, which has very dangerous implications for the people who now are employing it throughout the Church with such success.)

Judge Ott concludes his decision with this Order:

Accordingly, the Court determines that respondent Moyer and respondents John Heidengren and Timothy Tammany no longer have any right or authority to serve as rector and vestry members of The Church of The Good Shepherd, Rosemont, Pennsylvania, and they are hereby removed from those positions.

As of the time of writing, there has not come to light any official or public response to the decision by Father Moyer, his attorneys, or his congregation.

[UPDATE 08/30/2011: Seven parishioners of Good Shepherd, who describe themselves as "traditional orthodox Anglicans", circulated the following statement about the situation on Sunday, August 28:

A Declaration of the Friends of the Church Good Shepherd, Rosemont

August 28, 2011

We the undersigned believe that in the course of recent events, the leadership of the Church of the Good Shepherd-Rosemont has shifted from, and attempted to move the parish away from, its historic and stated mission of being a pillar of traditional Anglicanism. Given the present situation in the Episcopal Church, we find this understandable, but we also feel that it is lamentable.

The current leadership has stated its objective as being the establishment of an alternate house of worship under the promised Roman Catholic Ordinariate. We are well aware of why they have done this.

We are concerned, however, that insufficient attention is being paid to the needs of the parishioners who, for reasons of conscience, cannot join them. If the process of division is to be successful and amicable, marked by mutual respect, then we believe that now is the time to start thinking about it.

Therefore, we the undersigned, have formed an ad hoc committee to be known as the Friends of Good Shepherd. We hope and pray that we may be able to assist in the orderly and peaceable process of transition from the status quo in order to preserve and maintain the Church of the Good Shepherd as a viable witness to, and embodiment of the Anglo-Catholic expression of the Christian Faith in the Diocese of Pennsylvania. Several recent events have led us to take this step:

Inasmuch as:

1. Father Moyer has stated publicly that he intends to leave Good Shepherd in the near, but indefinite future to join the Roman Catholic Ordinariate Members of the Vestry have been actively engaged in projects directed toward, and specific to a time when they will have left Good Shepherd to join the Roman Catholic Ordinate.

The Vestry has operated in a less than transparent manner in matters regarding operational, financial and legal information, but especially by using the parliamentary category of Executive Session to keep certain information beyond the reach of the congregation.

In Parliamentary procedure, an Executive Session is that portion of a meeting, specially called, during which minutes of the meeting cease to be kept, and the proceedings are secret. The only attendees are members of the committee and invited guests. Deliberations during an Executive Session are to remain secret and all attendees are honor-bound to maintain confidentiality. This tool is chiefly used when dealing with controversial issues which a committee does not wish to make public, or when members have been encouraged to speak openly without concern for their words being repeated outside the meeting.

2. The Rector and Vestry have turned down a formally presented proposal to work together toward a peaceable transition, and we believe that the formation of an independent committee is desirable and necessary in order to preserve and insure the continued witness and mission of the Church of the Good Shepherd as a parish in the Diocese of Pennsylvania, and the world-wide Anglican Communion;

To this end, we the undersigned members of the Church of the Good Shepherd, Rosemont, have formed and constituted ourselves as what is to be known as the Friends of Good Shepherd,whose purpose is to insure and coordinate the means whereby the aforementioned ends may be achieved. In so doing, we believe it is important that we state what this ad hoc committee is, and what it is not:

We Are Not:

Legal or elected representatives of the Church of the Good Shepherd Rosemont Parish

We Are Not:

Presuming to represent the entire congregation of the Church of the Good Shepherd but to speak for ourselves, and we hope for others, who wish to remain as members of the Parish.

We Are:

Members of the Episcopal Church of the Good Shepherd Rosemont, Pennsylvania as well as traditional orthodox Anglicans.

We Are:

Attempting to exercise our legal rights, as delineated by the Commonwealth of Pennsylvania, and to work in concert with all those who strive for a peaceable transition. It is also appropriate that we say something about what this ad hoc committee will attempt to achieve:

We Will:

As is our right under the Law, review the accounting records to gain a better understanding of our current financial position and share such information with the members of the Good Shepherd congregation.

We Will:

Examine current legal liabilities from standing litigation which could have an impact on the parish in the future, and share such information with the members of the Good Shepherd congregation.

We Will:

Review past and current parish membership files with the intent of identifying individuals and families who wish to remain members of Good Shepherd, as well as those who have left the parish or may be lapsed, and might wish to return to this parish as it moves forward in its continuing role as an orthodox Anglican parish.

We Will:

Develop a "healing" strategy, to be enacted immediately, in order to help ameliorate the hurt, separation, anger, conflict and other spiritual damage experienced by congregants over the last few years.

We Will:

Endeavor to create a dialogue with the Diocese of Pennsylvania with the goal of returning Good Shepherd Rosemont to its historic mission of being a pillar of traditional Anglicanism.

To these ends We Hope and Pray For: A close collaboration with our Rector, the Rt. Rev. David L. Moyer and the current members of the Vestry.

We Hope and Pray For:

The cooperation of the Episcopal Diocese of Pennsylvania in assisting the healing and return of the Church of the Good Shepherd Rosemont to its historic role as a pillar of orthodox Anglicanism in the Diocese of Pennsylvania.

Barbara K. Clement
Charles F. Clement 3rd
George A. Anderson 3rd
Dr. Charles Zeiders
Maria Demopoulos
The Rev. Vernon Austin
Dr. Arthur Waldron

There should be more to report about this situation after this coming weekend.]

[UPDATE 08/31/2011: The Vestry of Good Shepherd has now circulated the following message:

August 31, 2011

ALL PARISH MESSAGE FROM THE VESTRY

As a follow up to yesterday’s communication to the parish, the Vestry has issued the following statement for parishioners:

Today the Vestry conducted an unscheduled emergency meeting to discuss actions related to Judge Stanley Ott’s decree issued on August 25^th. The Vestry met by teleconference at 11 a.m. EST and a quorum was present to conduct business. Brian Dickerson, outside legal counsel for the Vestry also participated.

First, the Vestry apologizes for any confusion on the timing of the Judge’s order in yesterday’s communication. The Court issued the order on August 25th, but it was not communicated to the Vestry until August 29^th.

Second, the Vestry is fully complying with the order and spirit of Judge Ott’s Decree and the following actions were taken:

1. CHURCH OPERATIONS AND STAFFING – The elected Vestry of Good Shepherd is responsible for the general welfare of the parish, to respond to the needs and desires of the parish, and for the management of its assets and resources.

It has been confirmed that the Vestry remains the authorized corporation to conduct church business as empowered by the charter, by-laws and standing rules of the church and Diocese. The Church of the Good Shepherd, Rosemont continues to be part of the Episcopal Church in the United States and the Diocese of Pennsylvania.

The Rector - The Rt. Rev. Dr. David Moyer no longer officiates or serves in any religious leading capacity at the Church of the Good Shepherd, Rosemont.

The Vestry was thankful and grateful for Bishop Moyer’s more than 20 years of service to the parish, congregation, and spiritual leadership as our “Good Shepherd.” His leadership and convictions to our parish’s orthodoxy, apostolic beliefs, and Anglo-Catholic traditions will forever be remembered and cherished. The Vestry will work with the Moyers to ensure a reasonable and fair amount of time is given to vacate the Rectory and Rector’s office after so many years of valued service and residence.

2. VESTRY CHANGES

Resignations - The Vestry accepted the resignations of John Ewing as Rector’s Warden and Tim Tammany as Recording Secretary and Vestryman. Their years of service was gratefully appreciated.

Appointments - The Vestry named David Rawson to serve as Senior Warden with financial authority to review and approve regular operating expenses of the parish, in consultation with the Vestry.

3. VESTRY VACANCIES - Recognizing that a number of vacancies exist, the Vestry desires to fill vacancies with eligible members from the parish that would like to help lead.

Over the past years, members of the parish have cited risk of legal liability in considering Vestry service – or have resigned from Vestry service. With all litigation now concluded, counsel has confirmed that legal liability should no longer be a concern moving forward. The Vestry must and will continue to work for the good of all members of the congregation.

The Vestry invites eligible parish members interested in helping lead Good Shepherd to attend the next regularly scheduled Vestry meeting on Wednesday September 7, at 7:30 pm in the Church Library.

4. DIOCESAN COMMUNICATION - The Vestry is contacting the Episcopal Diocese of Pennsylvania to assure full cooperation with Judge Ott’s Decree. The Vestry is actively identifying supply priests for future worship and the undertaking of a search for a new Rector.

The Rt. Rev. Rodney Michel, Assisting Bishop of the Diocese of Pennsylvania, is expected to officiate on Sunday, September 4^th. *

With the approaching end of summer and a new liturgical year, we are all saddened by the toll the filing of this lawsuit has had on our parish and Rector. We pray the diocesan leadership will accommodate and support orthodox parishes like Good Shepherd and embrace our ideological and religious differences inclusively. As Christians, we are called to “bear one another’s burdens, and so fulfill the law of Christ.” We commit ourselves to this, and humbly ask you to join us in doing the same.

In Christ,

The Vestry

The Church of the Good Shepherd, Rosemont

Wednesday of the Twenty-second week in Ordinary Time

* PS: There will be both an 8:00 am and a 10:00 am Mass on Sunday, Sept. 4.

-- End of message; End of Update]

The Unique Case of our National Cathedral

As I discuss in this week's edition of Anglican Unscripted, Washington's National Cathedral is a hybrid creature: it is not owned by any parish or Diocese of the Episcopal Church (USA), but is owned by a public charitable trust, called the Protestant Episcopal Cathedral Foundation. The Foundation was established by a charter from the United States Congress, enacted in January 1893 and signed into law by the outgoing President Benjamin Harrison, to facilitate the project of raising funds for the construction of a cathedral and religious education center that would be suited to the nation's capital.

The idea for a national cathedral had first been conceived by the French planner Pierre l'Enfant, who had been commissioned by President George Washington in 1791 to lay out the design for what in 1800 became the city of Washington in the District of Columbia. Major l'Enfant set aside a site ("Lot D") in his plan for what he imagined as a non-denominational religious center (see the detailed notes and plan at the end of this article):

This church is intended for national purposes, such as public prayer, thanksgivings, funeral orations, etc., likewise a proper shelter for such monuments as were voted by the late Continental Congress for those heroes who fell in the cause of liberty and for such others as may hereafter be decreed by the voice of a grateful nation.

But nothing came of that idea, and in 1836 construction began on the Old Patent Office Building at the site, which now houses the National Portrait Gallery.

While the Episcopal Church began to re-examine its structure and governing documents following its centennial in 1889, a movement began at the same time among prominent parishes in the District of Columbia to erect a suitable cathedral for the nation's capital. This movement, led by the Church of the Epiphany, began with the chartering of the Foundation in 1893, and next the formation in 1895 of a new Diocese of Washington. The latter was created by carving out of the Diocese of Maryland the area of the District of Columbia, together with the Maryland counties of Montgomery, Prince George's, Charles, and St. Mary's. The new diocese elected as its first bishop the Right Reverend William Satterlee, who immediately took up the cause for a cathedral and became its driving force.

Under Satterlee's leadership, the Foundation first acquired 30 acres for a cathedral on Mt. St. Alban, a prominent site overlooking the city, and the location already of the existing parish of St. Alban's. Additional acreage was purchased over the years, as funds became available. (One of the chief contributors was Charles Glover, the president of the no-longer-extant Riggs Bank, but which at the time was the largest bank in Washington.) Fundraising for such a project took considerable time, however. In 1906, the Foundation hired England's leading Anglican church architect, George Frederick Bodley, to design the building; one of his followers who had come to America, Henry Vaughan, was hired as the supervising architect.

Just one year later, in 1907, the Foundation held a grand ceremony to lay the cornerstone, which an estimated fifteen to twenty thousand people attended, and at which both the Bishop of London and President Theodore Roosevelt gave an address. (Although many of his predecessors were Episcopalians, and attended services at Episcopal churches in the District, Roosevelt was the first of many Presidents to be connected with the Cathedral Church of St. Peter and St. Paul, to give the building its full proper name.) The cornerstone, a huge block of American granite, incorporated a stone which had been brought from a field next to the Church of the Holy Nativity, in Bethlehem, and inscribed on it were the words from John 1:14 -- "The Word was made flesh, and dwelt among us."

Bishop Satterlee died in 1908, but his successors kept the project going. The cornerstone of the Bethlehem Chapel was laid in 1910, and the first services were held there in 1912. There was a brief hiatus in the fundraising during World War I, and by the time the War was over, both Henry Vaughan and Frederick Bodley had passed away, as well. The Foundation selected an American, Philip Hubert Frohman, as the head architect. He would work continuously on the project for the next fifty years of his life, and is considered the principal author of the Cathedral's final design. The son of the designer of New York's Central Park, Frederick Law Olmsted, Jr., was hired to lay out the landscaping for the Cathedral Close.

Work on the Cathedral did not finish until eighty-three years later, with the completion of the west towers in 1990, when a ceremony was held at which President George H. W. Bush delivered the dedicatory address. Both he and his son, President George W. Bush, held their inaugural prayer services there. There are many more people associated with the building's long history, including the amazing Rowan Le Compte, who at the age of sixteen designed a stained glass window for the Cathedral. He and his wife Irene subsequently went on to do many more windows and colorful mosaics for the interior, and at age 81 he was still at work on designs, as related in this informative article.

As I explained on Anglican Unscripted, the Cathedral, its schools and its grounds, as well as its bank accounts, prayer books, organ and altar cloths, are uniquely exempt from the language of the Dennis Canon, since they are all owned by a public charitable trust, whose charter dedicates it to a much broader purpose than just serving the Episcopal Church (USA). Nevertheless, the Cathedral Church of St. Peter and St. Paul serves simultaneously as the see both of the Bishop of Washington and (since 1940, as adopted by a concurrent resolution of General Convention) of the Presiding Bishop of the Episcopal Church -- who by a canonical change in 1943 was for the first time required to resign from his diocese upon being elected.

There began shortly afterward, during the term of the Rt. Rev. Henry Knox Sherrill which began in 1947, that slow process of "primatial creep" which transformed the Presiding Bishop's office, with its mushrooming staff, into a major institution of its own in the Church, as I described in this earlier post. And, now, despite the definitive rejection of a proposal at General Convention in 1946 to create a territorial see in Washington for the Presiding Bishop, and the defeat of a later proposal to turn the Presiding Bishop into the equivalent of a metropolitan archbishop, we have nonetheless arrived at that result via a little-noticed change made by the newly adopted disciplinary canons of Title IV, as I discussed in this post.

Thus while the Presiding Bishop has no Diocese, he/she still has a cathedra -- an episcopal chair in the National Cathedral, and all ceremonies of installation to that office take place there. In recent years, however, the Cathedral's budget has shrunk considerably, and more than half of its staff have been laid off. Its most recent Dean, the Very Rev. Dr. Samuel T. Lloyd III, is returning in September to his parish at Trinity Church in Boston's Copley Square. Nevertheless, the Cathedral has balanced its budget and begun a nationwide campaign for support through the newly re-launched National Cathedral Association.

Plans for a stable future have now been shaken, both literally and figuratively. The recent Virginia earthquake caused significant damage to the masonry of the Cathedral, as can be seen in the gallery of pictures at the Cathedral's Website. Apparently there was no insurance, due to the scarcity of earthquakes on the East Coast. Raising the millions needed for repairs will once again devolve on the shoulders of the Protestant Episcopal Cathedral Foundation, which has a notable Board of Trustees, and should be up to the task. Donations to the cause may be made at this page, where the photographs of the damage can be seen.

[UPDATE 09/07/2011: While I deplore the current blinkered attitude of those in charge of the Cathedral and what goes on there, I draw a distinction between the people in charge and the building which they mismanage. That building, as my post above shows, has a long and distinguished history, and embodies the love and professionalism of many dedicated and highly talented individuals. The damage to it done by the recent earthquake may be repaired on its own merits by making contributions for that sole purpose, without thereby signaling approval or ratification of the Diocese's misguided policies. The building will continue to be a national monument long after the current multicultural craziness has ceased to be a factor in its image.]

Texas Supreme Court Asks for Full Briefing in Good Shepherd Case

Last Friday, the Texas Supreme Court issued a brief order asking for full briefing of the request for review, filed by the Church of the Good Shepherd in San Angelo, Diocese of Northwest Texas, of the adverse decision of the Court of Appeal in Austin, which I critiqued in this earlier post. This is a positive sign of the Supreme Court's interest in the case, at the same time that it has before it Bishop Jack Iker's request that it review directly the adverse summary judgment decision in the Fort Worth case by Judge Chupp of the Tarrant County District Court.

The Texas Supreme Court had been on summer recess until lately. They meet to consider petitions on Fridays, and normally announce their disposition of the petitions the following Monday. Most petitions are dismissed without any further briefing whatsoever. If, after full briefing of the San Angelo case, they decide to accept it for review, they could either hold the Fort Worth case until the Good Shepherd case is decided, or they could accept it as well and decide both cases at the same time, or they could simply decide the Good Shepherd case, and assign the Fort Worth one back to the Court of Appeal for further hearing and decision in light of the opinion given in the San Angelo case.

The point is that the Texas Supreme Court has not yet signaled that it does not want to hear any cases involving the question of which standard Texas courts must apply to church property disputes: hierarchical deference, or "neutral principles of law". (Its last case involving such a question was decided in 1909, when there were no decisions upholding "neutral principles".) Instead, its request for full briefs in the San Angelo case sends just the opposite signal. Stay tuned to this blog for more as it happens.

"It's Déjà Vu All Over Again!"

The past two weeks have been both enlightening, and depressing -- despite my light-hearted reference to a quip by the incomparable Yogi Berra for my title. On the one hand, I have been re-reading the early history of the Church -- especially the theological and historical details of the first four ecumenical councils: Nicaea in 325, Constantinople in 381, Ephesus in 431, and Chalcedon in 451. I was struck by the fact that the term "ecumenical" (in the sense of combining bishops of both the eastern and western branches of the Church) was applied to these four only by a declaration read and adopted at the fifth ecumenical council, at Constantinople in 553.

And who declared those first four Councils to have been "ecumenical"? The Byzantine Emperor Justinian, that's who, with the cooperation of the bishops at Rome. The Western branch of the Church had accepted the decrees of the four councils as binding through Pope Hormisdas (514-523), but it was only after Pope Gregory the Great (590-604) compared them to the Four Gospels that their universal character was fully acknowledged in both the West as well as the East. (For political reasons, however, the Roman Church refused to accept the canons adopted at Constantinople in 381 until the Second Council of Lyons, in 1274.)

So what business did the Emperor have deciding exactly which earlier councils of the Church deserved the term "ecumenical"? Ah, therein lies quite a tale, to which I shall return, in a moment.

The depressing part of the past fortnight has come from my reading of a recently published book entitled "The Developing Schism within the Episcopal Church, 1960-2010", written by the Rev. Dr. Nancy Carol James, who currently assists at Grace Episcopal Church in Georgetown, Washington, D.C. It is not that the book's thesis itself is so depressing, although it documents a schism -- which must always wound and grieve the legacy Christ left us. (Schisms in the Church are a betrayal of Christ's mandate delivered to His disciples at the Last Supper: "A new commandment I give unto you -- that ye love one another as I have loved you.") Indeed, the book strives for an objectively neutral, bird's-eye view of the dispute, which allows the partisans on each side of the current divide to speak in their own voices. It is the sheer size of the chasm, rather, which the book in all innocence exposes between those two different factions, which makes for a very depressing read.

(I am still undecided, however, as to the degree to which the author achieved her objective, since by adopting uncritically each side's official statements, she ends up repeating ridiculous -- as of May 2010! -- "official" statistics such as that there are only "about 16" pending lawsuits in which ECUSA itself is involved, plus another "forty-one that the individual dioceses are fighting." See this earlier post for details and a catalogue of the many lawsuits to which ECUSA is a party, mostly as a plaintiff; and see this updated report by the American Anglican Council for the latest statistics -- which are now out of date as I write. ECUSA has most recently decided to intervene -- as a plaintiff, again! -- in the nine pending additional lawsuits against the incorporated parishes of the Anglican Diocese of San Joaquin. That will bring the total number of ECUSA-involved lawsuits to just shy of seventy.)

To contrast the early history of the Church -- before there was any schism between West and East, Orthodox and Catholic, or Catholic and Protestant -- with the most recent history of the Anglican Communion, as disturbed by the actions of the Episcopal Church (USA) and of the Anglican Church of Canada, is indeed enlightening, and helps to put matters into perspective. In sum: we in the Anglican Communion appear to be following the same course which the Church experienced in the fourth and fifth centuries.

For the truth is that the first four councils of the Church were not "ecumenical", in the sense that they were a universal consensus achieved on the spot by a representative gathering of all the branches of the Church as it then existed. The first Council of Nicaea, in 325, was convened by order of the Roman Emperor Constantine, at a place of his choosing, and the bishops who attended came in response to the imperial summons. Constantine -- not yet baptized as a Christian -- opened the ceremonies, and applied the pressure which only an emperor can to "encourage" the assembled bishops to come to a consensus about a theological dispute over Christ's nature (Arianism), with the details of which Constantine did not concern himself. The result was a first prototype of what eventually became our "Nicene Creed" -- but to claim that the prototype achieved an early consensus is to ignore an entire chapter of early division between East and West, and within the East itself.

That division was not so much theological, as linguistic. The terms of the debate at Nicaea, and later in the same century at Constantinople, were entirely cast in the well-developed vocabulary of Greek philosophy, terms which were absent from both the Septuagint and from the emerging New Testament. (E.g., "homooúsious" -- "of the same substance", or "consubstantial", as used in the Nicene Creed, is a term taken from the neo-Platonic philosopher Plotinus. It had been adapted to their use by the second-century Gnostics, and was then co-opted by the Eastern bishops at Nicaea. The early Church fathers outside of Alexandria were extremely reluctant to adopt such a term, which had no antecedents in Holy Scripture, and the text adopted by the first Council in 325 had by no means achieved a consensus in the years between that event and the second Council in 381, let alone in the Latin-speaking West, which had no words in which even to express the dispute.) Meanwhile, the converts to Arianism -- especially the Goths to the north -- began to overrun the boundaries of the Empire, such that in 365 Jerome complained: "The whole world groaned to find itself Arian."

There are no records of the Council at Constantinople in 381; we supposedly know what happened there as a result of descriptions of its acta (decrees) in the accounts of subsequent Councils. Thus, the Council in 381 is credited with adopting the Nicene Creed as we know it today (without, however, the filioque -- the clause that asserts that the Holy Spirit proceeds from "the Father and the Son" [Latin: "ex patro filioque"], added by the Western Church in the eighth century as a result of St. Augustine's Trinitarian theology, which it by then had come to adopt as definitional). Recent scholarship, however, has shown that the text of what we call the Nicene Creed was not based in 381 on what had been first adopted in 325, but most likely derived from a different version which had evolved and been much debated (in the Greek-speaking East, and again not at all in the Latin-speaking West!) during the intervening years.

The ironical fact is that the Nicene Creed, the talisman of the Christian faith, supposedly adopted at the second "Ecumenical" Council of Constantinople in 381, was virtually unknown as such to both the Eastern and Western branches of the Church before the fourth Council, at Chalcedon in 451, when it was read and described to the assembled bishops as having been officially adopted in 381. Thus it did not represent a consensus between East and West in 381; apart from a papal vicar who himself was Eastern (Acholius of Thessalonika), there were no representatives of Western Christendom even in attendance at Constantinople in 381.

The third so-called "ecumenical" Council, at Ephesus in 431, was also highly questionable in its character. It is notorious for having been convened first by the Emperor Theodosius II, who did not recognize the Bishop of Rome's (Pope Celestine's) attempt to anathematize the Bishop of the Imperial see at Constantinople (Nestorius) for heretical teachings regarding his denial of the Virgin Mary as theotokos ("God-bearer"), especially since Celestine had "delegated" authority to excommunicate Nestorius to the Bishop of Alexandria (Cyril), who was to conduct an inquiry before finally acting. Obviously, Celestine's attempt to assert his see's primacy was not yet accepted throughout the Church, although he had the willing support of Cyril of Alexandria, who deplored an earlier decree of Theodosius which had declared that the see of Constantinople would rank ahead of his own, and behind only the see of Rome.

Cyril, fifty of his Egyptian bishops, and a band of Egyptian monks arrived early at Ephesus, to find Nestorius already present with just sixteen of his bishops, but protected by a large armed bodyguard. The host bishop, Memnon of Ephesus, who had rankled at Nestorius' earlier attempts to enforce his jurisdiction over Memnon's own see, had closed the churches of Ephesus to Nestorius and his followers. Other bishops from Jerusalem and Macedonia, sympathetic to Cyril, also arrived, but the rest of the invitees were delayed by various troubles with Persians and barbarians.

It must be borne in mind, when studying the background of this third Council, that the western Roman Empire at this point was on the verge of collapse. Rome itself had been sacked by Alaric in 410, and the Visigoths had invaded northern Africa, where St. Augustine of Hippo died just before they entered his city in 431. Everywhere in the West and its dependencies were pandemonium and chaos; only the eastern empire, under the vigorous rule of Theodosius II, managed for the most part to maintain its borders.

On June 21, 431 Cyril, brandishing his commission from Pope Celestine, announced that he was convening the Council on the next day, despite the failure of most of the other contingents to arrive. Nestorius and his followers protested, and declined to attend, despite being summoned to answer charges of heresy. After debating his views, the "Council" then present voted to depose him, and sent him this harsh notification of its action:

To Nestorius, new Judas. Know that by reason of your impious preachings and of your disobedience to the canons, on the twenty-second of this month of June, in conformity with the rules of the Church, you have been deposed by the Holy Synod, and that you now no longer have any rank in the Church.

Nestorius responded in kind:

I was summoned by Cyril who assembled the Council, by Cyril who presided. Who was judge? Cyril. Who was accuser? Cyril. Who was bishop of Rome? Cyril. Cyril was everything.

Now Bishop John of Antioch arrived in Ephesus, with his bishops, clergy and followers. Having been briefed on what had occurred, before they even entered the city, they indignantly invoked their own "Council" at John's hotel. There they received a report from the Emperor's legate, who had observed the earlier proceedings without interfering, but who had written urgently to Theodosius to ask for instructions as to how to protect the bishop of Constantinople from this unruly gathering. Seeking the backing of the Emperor, John, his subordinate bishops and assembled clergy proceeded to excommunicate Cyril, Memnon of Ephesus, and all their adherents.

These decrees were promptly dispatched to the Emperor, who replied with a decree rescinding all the actions of Cyril and his followers, and ordering all bishops to remain at Ephesus until his deputy could arrive to restore order. (Notice how the imperial authority was simply accepted by all the bishops in the early Church, although the Pope in Rome did not officially recognize the jurisdiction of the Eastern Emperor. There was still a Western Emperor in 431 [Valentinian III], even though he was so weak that his generals engaged in civil wars against each other, and no one in the Church saw any point in appealing to him. In the resulting vacuum of power, the bishop of Rome began to assert ever more the authority which eventually would lead to the Great Schism between East and West in 1054.)

Before Theodosius' deputy could arrive at Ephesus, the delegates to the Council sent by Pope Celestine arrived. They immediately allied themselves with Cyril, reaffirmed his excommunication of Nestorius, and produced (in Celestine's name) a new excommunication of John of Antioch and his bishops. All factions now appealed to the Emperor for a definitive resolution of the stalemate, and tried to sway his opinion with extensive bribes to officials at the court. (Cyril's own Egyptian bishops would later complain that his gifts from the patriarchy's accumulated treasures -- rich cloth, tapestries, carved ivory chairs, ostriches(!), and "a million in hard cash" had impoverished their Church, for no good result.)

Theodosius announced that he would hold a conference to decide the matter, with just eight delegates from each faction to attend and make their case. Before that could occur, however, Nestorius agreed on a formula using "theotokos" in a sense which he could accept, and offered to resign his see in a gesture to restore peace in the Church. To his dismay, his own Emperor accepted his resignation, appointed Maximian as his successor, and then simply ordered the Council dissolved and the bishops to go to their respective homes.

It was not until the Council of Chalcedon, in 451, accepted certain (but not all) of the enactments by Cyril's "Council" of 431 that anyone could say with certainty what had emerged out of the chaos of Ephesus. And it was, as already noted, only at Chalcedon that our Nicene Creed -- seventy years after it had first been proposed -- was definitively adopted. By then the linguistic disputes it had been intended to settle were distant relics of the past, and the Church accepted its similarity with the original creed adopted at Nicaea as proof of its veracity and authenticity.

The foregoing history of the Nicene Creed demonstrates the only real way that the Church arrives at a true consensus on any point of doctrine. Proposals are put forth, are reflected on and debated for years, and consensus arrives only when everyone finally realizes that actual agreement was reached long before. The Church is not The Jesus Seminar, and cannot decide points of doctrine by majority vote -- unless the majority continues to prevail on the same point for a long, long time, and after much debate and consideration of alternatives. Even then, the willfulness of dissenters can still result in a schism, as the history of the Church in the fifth century demonstrates.

The Council of Chalcedon in 451 marked the first definitive schism in the Christian Church, in which the Alexandrian, Syrian and Armenian Christians, who believed that Christ had brought a single, unified, fully human and fully divine nature to his life on earth (the doctrine of "monophysitism"; or actually, a more limited category thereof called "miaphysitism", as a commenter points out below)), split off from the Council and, despite persecution from Marcian and subsequent emperors, maintained their separate existences thereafter, down to this very day. Miaphysitism took hold originally in the eastern Churches as a counter to the dyophysitism of Nestorius, the rival bishop of Constantinople. Both doctrines were rejected at Chalcedon, as noted above, but their adherents simply would not yield in the interest of Church unity, and chose to walk apart.

In the fourth and fifth centuries, the Church was an established Church -- the official and only Church of the Roman Empire. Its branches extended both East and West, throughout the civilized world. Theodosius II had intervened in 380 to decree that everyone must subscribe to its Nicene theology on pain of loss of Roman citizenship and privileges, and thus had attempted to use the power of the State to settle a theological controversy. The result was nearly two centuries more of religious strife, political intrigue, and of rival factions jockeying for position, until another powerful emperor, Justinian, convened the second Council of Constantinople in 553 to settle definitively the issue of Jesus' two natures united hypostatically in one person. By this time, however, the seeds of what would become the Great Schism had been sown, as the Church in Rome increasingly began to assert its primacy based on its archiepiscopal reading of Jesus' words to Peter ("On this rock I shall found my Church").

From the sixteenth century to the present, England has had an established Church, whose Anglican branches have extended throughout the civilized world. As in the fourth and fifth centuries, now a major theological dispute has arisen which threatens the shared communion of those branches. ECUSA and the ACoC are fighting for their independence and autonomy within the Communion with no less vigor than Nestorius and John of Antioch fought long ago for theirs. In so fighting, each of them -- ECUSA and ACoC, as well as Nestorius and John -- were going against the consensus Scriptural views of the Church's bishops assembled in Council, and arguing for their own unique interpretations of Scripture as authoritative. When they failed to bring their episcopal colleagues around to their views, they insisted on their autonomous right to maintain and teach them, nonetheless.

Even Nestorius' resignation did not halt the disagreements, as the history traced above shows. What Chalcedon and its background demonstrate is that a Church cannot remain stable with two opposing views contending for supremacy -- one consensus eventually must prevail. When one or more of its members begins teaching and following a doctrine which the rest do not accept as Scriptural, then ultimately schism must result if the dissenter will not yield.

Today, the Anglican Communion is held together by a bare thread of pretense, maintained by the Anglican Communion Office and the Archbishop of Canterbury. In reality, however, as the Rev. Prof. Stephen Noll so saliently demonstrates in this and similar analyses, it has already split into two communions of churches, neither one of which wants anything to do with the other, unless that other will come around to its way of thinking, teaching, and acting. That will never happen, given the tenacity with which each group clings to its current views. There is no overall counterpart to the Roman emperor, with authority to summon councils of the Church to resolve the differences.

The one remaining such authority in the Communion today -- that of the Archbishop of Canterbury to call the Lambeth Conferences -- was frittered away on indaba-style chatter at the 2008 session. ("Indaba-style", because there was insufficient time for real indaba to be practiced, and none of the bishops present changed any firmly-held views as a result of the exercise.) The Communion thereby lost its last and best chance to survive intact -- ironically, because the Archbishop and the ACO did not want any authoritative interpretations of Scripture to come from the assembled bishops. By the time of the next Lambeth Conference, if indeed there is one, the Anglican Communion, Covenant or no Covenant, will be but a shadow of its former self.

As a lifelong Anglican, I of course regret the schismatic actions taken by the Episcopal Church (USA) and the Anglican Church of Canada. And by "schismatic actions", I do not refer just to the consecrations of openly same-sex-partnered bishops, or the endorsements of rites for the blessing and celebration of same-sex unions. Those, I submit, are more the symptoms than the cause of the schism -- every bit as much as the often-maligned "border-crossings" are symptoms. The root cause of the schism goes back well before 2000 or 2003, because if the forces which are now dividing the Communion had not already manifested themselves by then, the border-crossings would not have begun at that time.

No, the book mentioned earlier -- "The Developing Schism within the Episcopal Church, 1960-2010" -- which depicts a schism within a single Church, is at the same time a chronicle of the schism which was then occurring in the Anglican Communion as a whole. The events it describes -- starting with the heresies of Bishop Pike, the new theology of the 1979 Prayer Book and its much-touted baptismal covenant "to strive for justice and peace among all peoples", the concomitant emphasis on "civil rights", which was subsequently expanded to include women's and gays' so-called "rights" to ordination -- are the story of a Church that was walking apart from the other members of the Communion long before the turn of the century.

And not only apart from the other member churches of the Anglican Communion -- ECUSA was at the same time walking apart from all the churches in the historic apostolic succession, as well. Its unilateral decisions to ordain women and openly partnered gays to the episcopate meant that there was no longer any common ground for ecumenical talks with the Roman Catholics or the Eastern Orthodox, since the apostolic succession as recognized by those churches could thenceforth no longer be maintained in ECUSA. And what is the point of debating theological topics with others if one church has made it impossible for the other church ever to recognize the first one's orders? The only kind of ecumenical agreement possible after that action is a meaningless resolve to "respect" the other's dignity -- but since such respect goes hand-in-hand with being a professed Christian, why bother with the obvious?

Ephesus and Chalcedon teach us that the councils of the Church will become increasingly divisive and dysfunctional until the final recognition of the schism permits each faction to separate into its own camp, lick its wounds, and continue on its now single way, apart from its former co-communicants. As with the Copts and the Syrian Orthodox, so with ECUSA and the ACoC. Whether the Church of England can avoid a similar schism is, unfortunately, not within the leadership capabilities of the current Archbishop to prevent.

The Anglican Communion will go the way of the Church in the fifth century, and the body of Christ suffer yet more wounds.

Two Priests Dialogue about the Dennis Canon (I)

The Rev. Canon Kendall Harmon has done a good job of chronicling the departure of the congregation of St. James in Penn Hills, Pittsburgh from their physical buildings, by which act they surrendered possession of the property to a group which calls itself the "Episcopal Diocese of Pittsburgh." He linked to five different viewpoints on the story: the announcement by the Anglican Diocese, the announcement by the so-called "Episcopal Diocese", a story about the transfer in the Pittsburgh Post-Gazette, a blog post by stalwart Episcopalian Lionel Deimel of Pittsburgh, and a rejoinder to Mr. Deimel's post by Father David Wilson, a priest in the Anglican Diocese of Pittsburgh.

It is the last link to which I wish to draw your attention (after you have read or familiarized yourself with the preceding four). Indeed, the rejoinder is so succinct that I can quote it here for you in its essential entirety (assuming I may presume on Father Wilson's good will to allow that):

St James Anglican Church in Penn Hills vacated their building and moved out, it was announced by our Diocese yesterday. . . . Ann Rodgers of the Pittsburgh Post Gazette covered the story in her usual very balanced way in this morning's edition of that paper here. The TEC Diocese weighs in their own way here; interestingly they announce an "evangelical" priest, Vicente Santiago, a former rector who stayed in TEC is returning. I'd love to see a report on how many folks actually show up on Sunday. My bet [is] it will [be] mainly folks from other TEC parishes who attend to show their support of the TEC Diocese. And TEC blogger Lionel Deimel gives his pravda-esque spin here (scroll down) especially note that he implies they may have vacated because of money problems "they couldn't afford it" -- heifer dust! They walked because they weren't going to pay [again] for a building they paid for once already. They believe their money would be better spent on mission, not on maintaining a fifty-year-old building that is failing apart and that has no visibility in the community. And Deimel's headline is a laugher as well, "Third Congregation Settles with Episcopal Diocese"; they didn't settle anything with TEC - they vacated their building rather than settle. Talk about doublespeak!

The beat goes on! And it looks like it'll be a long hot summer.

But readers of Father Wilson's blog did not have to stop with his comparison of the facts with what Lionel Deimel asserted in his post -- they had the benefit of the interchange that followed between Father Wilson and Father Bruce Robison, a staunch Episcopalian who heads the parish of St. Andrew's, in Highland Park (another suburb of Pittsburgh). Dr. Robison's comments on all of the Episcopal blogs where I have encountered them are uniformly irenic in tone, and attempt to scale down the adversarial rhetoric that all too often passes between the Episcopalians and the members of ACNA in these days. And while I can appreciate Dr. Robison's attempts at peaceful dialogue between the two camps (ECUSA and ACNA in the Diocese of Pittsburgh), I feel constrained to point out the real differences between them which render attempts at such an interchange ultimately fruitless, given the current status of Fr. Robison's group. I will have more to say about this gloomy conclusion after I have quoted from, and commented upon, the dialogue between Fr. Robison and Fr. Wilson.

Before I begin, I must emphasize that the gulf that I see between the two groups is a consequence entirely of two factors: (1) the Episcopal Church (USA)'s General Convention in 1979 may (but with conflicting evidence to show for it) have enacted what it calls the "Dennis Canon"; and (2) despite its questionable adoption, ECUSA has ever since insisted that the Canon alone, without any accompanying actions by local parishes in every State, was sufficient to impose upon all those parishes' real and personal property (including their bank accounts), ipso facto, a sudden and permanent trust in favor of both the national Church and the local Diocese.

By way of analogy (somewhat inexact, I admit), the current position of ECUSA on the Dennis Canon is akin to the notion that if Mr. and Mrs. Jones, who owned a home in (say) Decatur, Iowa, registered with the Democratic Party, and used their home for meetings of the local Democratic campaign committee, the latter would suddenly be empowered to adopt legislation which made the Jones' home -- and their bank accounts, family silver and other heirlooms, and other property of whatever kind, no matter where or how held -- forever subject to a trust in favor of the Party, such that if Mr. and Mrs. Jones should ever register as Republicans, they would have to surrender their home and all their personal property to the Democratic Party -- or to its local chapter -- neither of whom had ever contributed a single penny to the Joneses, while gratefully accepting the Joneses' contributions to them all along.

I hope you will agree with me that it would be ridiculous, under our Constitution, to allow a political party to have such power over its devoted members. With regard to the so-called "Dennis Canon", therefore, the question is: how, under our Constitution, is a national Church allowed to do what a political party could not do? What is so special about a place where its members can gather that enables a national church to claim its members' property by fiat, while no one in his right mind would ever agree that a political party could do so?

Keep asking yourselves these questions as you read the dialogue that follows. It began when Fr. Robison responded to Fr. Wilson's post with this somewhat lengthy comment (which I have edited for the sake of brevity):

Unsure, David, about the full context of this. There really is no formal record, and it's just a matter of "who knows exactly what they were thinking?" Similarly the folks up in Warrendale / Cranberry seem to have decided to opt for a fresh start and so more or less abandoned the property without an effort to find a mutually agreeable settlement.

I think it's clear that Doug+ and the congregation were anxious, but it is also clear that no one ever asked them to "pay twice" for the property--because in any event the St. James folks never sat down for such a conversation. To say that the current market value of the property is one of the pieces of information that needs to be ascertained in the course of a negotiated settlement does not mean that it will determine the terms of the settlement. . . .

. . .

So, all said, this was not a "settlement." The property of the Penn Hills church was on the roster of assets listed by the Special Master subject to the terms of the 2005 stipulation. That stipulation indicates that if congregations want to leave the Episcopal Diocese "as congregations," then they must enter into a negotiation with the diocese, and then that the terms of any settlement must be approved by the court. Doug+ and his leadership did their own calculus and decided what they decided. My prayer is that God will bless their ministry in the season ahead.

What ministry will be able to continue from the traditional site of St. James Church I guess we'll need to see. The Episcopal Diocese certainly did not want to board the place up and leave all those 12-step groups, scout troops, etc., without a place to meet, and as yet we don't really know whether a congregation of some sort may not gather. . . .

Let's stop here and look more closely at that Stipulation and Order entered into by the parties in October 2005, which Father Robison references. According to his recollection, the property of St. James was on the list of properties held by the Diocese for the benefit of of the parishes and institutions of the Diocese. And this fact required the parish, if it wished to disaffiliate, to "negotiate" with the Diocese over its property. But did the Stipulation really say that?

Here is the operative text of the Stipulation about the disaffiliation of parishes:

(a) In the event a parish in the Diocese (hereinafter "Parish Church") shall elect to disaffiliate with the Diocese, the Parish Church shall give written notice of that election to the Diocese by delivering a copy of the notice, signed by the Rector and the Vestry, to the Diocesan Bishop (hereinafter "Bishop"), to the Board of Trustees of the Diocese (hereinafter "Board of Trustees"), to each member of that Parish Church and to the Rector and Vestry of each other Parish Church of the Diocese. Upon receipt of such notice, the Bishop and the Board of Trustees shall meet with representatives of that Parish Church and any other parties expressing an interest to discuss in good faith the disposition of all Property specifically held for or in the name of the Parish Church. If agreement on the disposition of such Property, including the consideration therefore, cannot be reached among such parties, the matter shall be submitted to mediation, with each party bearing its own costs thereof. . . .

All well and good -- if a parish leaves the diocese and wants to take its property with it, it must come to the negotiating table with the Diocese first. But now look at this language in the last subparagraph of Section 2 of the Stipulation (bold emphasis added):

(d) The above provisions of this paragraph 2 do not apply to Property which is held generally by the Diocese for the beneficial use of the parishes and institutions of the Diocese. Such Property is subject to the provisions of paragraph 1.

So property held by the Diocese of Pittsburgh in 2005 for the benefit of individual parishes, such as St. James in Penn Hills, was not subject to any "negotiations." Instead, under the terms of paragraph 1, that property "shall continue to be so held or administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. . . ."

Now comes the next wrinkle in the case. Did St. James decide to "disaffiliate" from the Diocese to which it belonged? No, indeed -- it never gave "Notice of Disaffiliation" to anyone, because the parish never disaffiliated. It is still, in 2011, a constituent part of the same Diocese to which it belonged in October 2005, even after it walked away from its buildings and property. That Diocese is now called the "Anglican Diocese of Pittsburgh", and it was the entity who disaffiliated -- not from itself, however, because that would be a legal impossibility -- but from the Episcopal Church (USA), to which it (and not its constituent parishes) belonged as a member. The Stipulation to which Father Robison refers says nothing about dioceses disaffiliating from the Church; only parishes doing so from their Diocese -- and that never happened here.

Why, then, could the Anglican Diocese of Pittsburgh not continue to hold St. James's property for it, as it had always done? Because Father Robison and his group of Episcopalians, constituting a minority in the Diocese, did not want to allow that to happen. In late 2008, they filed new pleadings in the litigation which had settled with the Stipulation, and claimed they wanted to enforce its terms, which they said the Diocese had violated by withdrawing from the Church. You see, according to their reading of the document, when it said that property held by the Diocese would continue to be so held by the Diocese, the word "Diocese" meant the specific entity that in October 2005 was a constituent part of the Episcopal Church (USA).

By pulling out of the Church, they said, the (now) Anglican Diocese of Pittsburgh was no longer holding title to all of its properties as the Episcopal Diocese of Pittsburgh, and so was in violation of the written terms of the Stipulation. Never mind that the Stipulation said not one word about the Diocese disaffiliating from the Church -- it was all implied in the language describing the Diocese, don't you see? And the tragedy of Pittsburgh is that this simple-minded argument persuaded a not-very-sophisticated Judge to order that yes, that is exactly what the Stipulation meant when the attorneys signed it in 2005.

I can understand how a judge might be misled into such a ruling by confusing how dioceses come into being with how they leave a church. But he still should have kept his characters straight. The Episcopal Diocese of Pittsburgh did not cease to be the Diocese of Pittsburgh when it voted to leave the national Church in October 2008. In the eyes of the civil law, the Diocese was still the same Diocese, even if it changed its name.

But where did the new Diocese come from -- the one to whom Judge James ordered Bishop Duncan's diocese to hand over all of its property? Ah, that is the question -- to which we shall return. For now, let us rejoin the dialogue between Father Wilson and Father Robison. In response to the former's comment about St. James having to "negotiate" for its property, Father Wilson wrote:

Thanks Bruce for your thoughts. I should have said "again" rather than "twice" on the money issue. And I also should have mentioned the Dennis Canon issue which Doug pointedly stressed in the Post-Gazette and which quite pointedly the TEC Diocese, Lionel [Deimel] and you have not addressed.

Which comment brought the following lengthy response from Fr. Robison, which I shall consider here in segments:

The deal about the Dennis Canon is that the Episcopal Diocese is subject to its provisions and can reach no agreement which is contrary to its basic requirement that the officers of the diocese act as fiduciaries for the diocese.

Here we have a common misunderstanding on the part of those who have benefited from the Dennis Canon in the courts: the fact is that the Canon says nothing -- nada, not a word -- about "the officers of the diocese act[ing] as fiduciaries for the diocese." (Look at its full text here.)

Instead, it is the common law of Pennsylvania which imposes fiduciary duties on the officers of a corporation or an unincorporated association organized under its laws, such as is the Diocese of Pittsburgh. And Bishop (now Archbishop) Robert Duncan and his staff did so act as fiduciaries, and continued so to act, throughout the time when the diocese withdrew from the national church, and thereafter. They were as loyal as fiduciaries can be: when the Diocese elected to change its governing documents so as to take it out of ECUSA, they elected to follow along with it, and to continue to act as its fiduciaries. (Had they chosen instead to remain in the Episcopal Church -- that was not, alas, an option the Church made possible for Bishop Duncan -- they would have betrayed their fiduciary duties to the Diocese in favor of a minority which dissented from the withdrawal. Fiduciaries owe their duties to the entity itself, of course, and not to any faction within it. But when the majority is empowered to change the governing documents, and it votes to do so in a legally called meeting, the fiduciaries are bound by the law to honor that decision, as they did here.)

To continue with Father Robison's response, he immediately repeats the same misunderstanding of the law and the Dennis Canon:

There is of course no prior assumption that fiduciaries must place financial concerns ahead of concerns about mission, ministry, spiritual integrity, values of Christian charity. Only that in the end they must affirm their belief that they have as officers of the Episcopal Diocese acted in what they understand to be the best interests overall of the diocese--which is what is required by the Dennis Canon.

No, it is not, as we have just seen, required by the Dennis Canon that fiduciaries act in the best interest of the entity which they serve -- it is required by the common law which Pennsylvania inherited from England. Ah, you might say -- but don't bishops of dioceses owe fiduciary duties to the Church which ordained them, as well? (Of course, that point will not work here, because the Church "deposed" Bishop Duncan, and so freed him from all fiduciary duties to it, before the Diocese of Pittsburgh voted to leave the Church.) Well, yes, they do -- but not at the expense of the Diocese which elected them. If there is a conflict between the Diocese and the national Church, the Bishop cannot serve two masters: he must either stay with the Diocese, and resign from the Church, or stay with the Church, and resign from the Diocese.

The same dilemma faced those who, like Father Robison, could not agree with the Diocese's vote to leave the Church. He, too, had a fiduciary duty to the Diocese, but his primary duty was to his parish. And so when the Diocese voted to leave, Father Robison chose to put his duty to his parish ahead of his duty to the Diocese -- as was all good and proper.

But what, then, of the Diocese to which his parish belonged? Well, since neither he nor his parish wanted to go along with it, they needed to find another Diocese to which they could belong, that was still in the Episcopal Church. But did they do that (join another Episcopal Diocese)? No, they did not -- instead, they formed a new unincorporated association, met early in 2009, and adopted as governing documents ones that derived from those of the old Diocese, without the changes approved in 2008.

Then, however, they did something for which it is very difficult to forgive them. To further the litigation needs of the national church (it would not do for it to concede that its member dioceses could lawfully withdraw from it), they collaborated with that body to concoct a preposterous legal fiction: that they were the same diocese in the eyes of the law as the one which had held the vote to leave in October 2008. For if dioceses in ECUSA cannot leave, you see, then the "Diocese of Pittsburgh" must never have left in fact, but remained in the Church all along.

To think that the law would agree with such an outlandish tomfoolery is nothing short of chutzpah, of the highest degree. The sad thing for the law everywhere, for Bishop Duncan and his Diocese, and for (yes) The Episcopal Church (USA), is that the law (in the person of the Hon. Judge James) did agree to go along. He allowed not just ECUSA itself, but the new Diocese -- which had never gone through the steps to get itself formally admitted to ECUSA -- to intervene into the Pittsburgh lawsuit just so they could assert claims based on the Dennis Canon to all of the Anglican Diocese's property.

And here is the precise problem with that maneuver -- never addressed by Judge James or any of the Pennsylvania courts. Consider first the timeline, as follows:

September 18, 2008 - The Episcopal Bishops, assembled for their fall meeting, disgrace themselves by holding a kangaroo court session that expels ("deposes") Bishop Robert Duncan from the Church. Bishop Duncan does not contest the expulsion, but receives an appointment as Vicar General from the Anglican Province of the Southern Cone.

October 4, 2008 - The Episcopal Diocese of Pittsburgh, acting through its clergy and lay deputies by overwhelming majorities, votes final changes in its governing documents which render it impossible for the Diocese to continue as a constituent member of the Episcopal Church (USA). A small minority of deputies walk out after the vote. The "Episcopal Diocese of Pittsburgh" is still an episcopal diocese under the protection of the Anglican Province of the Southern Cone; later, it changes its name to the "Anglican Diocese of Pittsburgh."

October 10, 2008 - the Rev. Dr. James Simons, the only dissenting Episcopalian who had (up until the October 4 convention) been serving on the Diocese's Standing Committee, connives with the Presiding Bishop to have her "recognize" him and a few of his cohorts as the "Standing Committee" -- but of which Diocese? The fictional "Diocese of Pittsburgh", to which this equally fictional "Standing Committee" is "recognized" as being attached, does not yet exist under Pennsylvania law, because it has neither members nor governing documents.

November 7, 2008 - at a specially called convention the Diocese of Pittsburgh (the only one in existence at this time) elects the Rt. Rev. Robert W. Duncan as its new bishop.

December 12, 2008 - without any authority under the Constitution or Canons of the (only existing) Diocese of Pittsburgh, the Rev. Dr. Simons purports to convene a "special convention" of the Diocese, to which only Episcopalians will be admitted. At this meeting, called without proper notice, the assembled deputies adopt a "Constitution and Canons" which are the version that existed before the vote in October 2008 to amend them.

Do you have that? The amendments voted upon in October 2008 by the required majorities in each order were approved in a legally called and noticed meeting, at which quorums of both orders were present and voting. The votes in December 2008 to "undo" what the Convention lawfully did two months earlier were taken at an illegally noticed meeting which met without any authority under the existing Constitutions and Canons. (To take just one example, the "Standing Committee" which purported to call the special meeting was not the Ecclesiastical Authority of any Diocese at the time it issued the call, because by definition the "Diocese" of which it wanted to be the "Standing Committee had not yet come into existence. The deputies present simply passed resolutions "waiving" those requirements.) So guess which action the Episcopal Church (USA) chose to recognize as the legitimate one (for church purposes)? You have that right -- irregularities in abiding by the Constitution and Canons never count when it is the "faithful Episcopalians" who commit the irregularities. In fact, they positively define themselves by their contempt for both the Constitution and the Canons when it suits their grander purposes. They are never willing to revisit the issue and do things by the book, because that would be to admit that they did it wrong the first time.

Now, back to Fr. Robison:

When I was president of the Standing Committee back in the early 2000's the diocese "sold" property in Aliquippa to the Church Army for use in its ministry. I think the price was $1. Now, an argument could have been made, even in Aliquippa, that the diocese could have gotten a better financial return on the open real estate market. Maybe $10, given the specifics of that case. But the principle is there. We decided that the best interests of the diocese would be served by this because the "best interests" of the diocese included a desire to provide Christian ministry and outreach in a distressed community. If we weren't equipped to do it, we were glad to see that someone else was, and to support them in that effort.

Unwittingly, Father Robison has just provided proof that the "trust" purportedly imposed by the Dennis Canon is not a real trust in the eyes of the law. For if it were such a real trust, then property which was subject to it could never have been sold outright to a third party without the consent of the beneficiaries for which it is held in trust (at least, unless there were an express power of sale in the trust instrument -- and there is no such power in the language of the Dennis Canon). Yet here the Diocese "sells" the property without getting ECUSA's consent -- do you remember, ECUSA is the other beneficiary who comes into court all the time asking to enforce the Dennis Canon? So how is it possible that the Aliquippa property which Fr. Robison describes was sold free and clear of the Dennis Canon "trust" in favor of ECUSA?

Answer: because, as already noted, the Dennis Canon trust is not a real trust -- it is not of record on the title to any church property, in Pennsylvania or elsewhere. So the record title owners are free to sell the property at any time, without having to consult ECUSA or obtain its consent. The Dennis Canon "trust" is a highly selective trust -- it becomes an enforceable trust only when those who can benefit from it want to invoke it. Otherwise, it is routinely ignored all the time when dioceses and parishes sell their property to others.

Here ends Part I of this post, which has become long enough already. I will take up the rest of the two priests' dialogue in the next installment.

A Memorable Birthday, and a Great Unsolved Problem

Today Google reminds us all that it is the 410th anniversary of the birthday of Pierre de Fermat (1601? - 1665), the French parliamentary lawyer and amateur number theorist who first proposed the statement that became known as "Fermat's Last Theorem." As he wrote in his copy of an edition of Diophantus published by Bachet in 1621, in response to Proposition II.8 ("Solve by rational numbers the indeterminate equation: x² + y² = a²"):

On the contrary, it is impossible to divide either a cube into two cubes, a [fourth power] into two [fourth powers], or, generally, any power superior to the square into two powers of the same degree; I have discovered a truly marvelous demonstration of this which this margin is too narrow to contain.

This handwritten note first appeared in print in Fermat's Observations on Diophantus, a book published after his death by Fermat's son in 1670. As such, it became a famous bête noire which many, many leading mathematicians of the succeeding centuries unsuccessfully tried to prove.

After the English mathematician Andrew Wiles finally succeeded in doing so in 1994, using methods of higher mathematics of which Pierre de Fermat never could have conceived, let alone have encountered in his day, many professional mathematicians have concluded that Fermat must have later found out that what he first thought was an elementary proof of his theorem had a fatal, incurable flaw -- which is why no other reference to such a theorem was ever found in any of his subsequent writings.

(During his lifetime, mathematicians "published" their work by corresponding with others in the field known to them. Fermat communicated to one such correspondent his ingenious "proof by infinite descent" of the case where x, y and z are all fourth powers, but that is the only case for which we know for certain he had a proof. He had discovered that proof, as we see from his marginal comment quoted above, by the time he wrote it in ca. 1639, although he did not communicate it to others until much later. The proof assumed first that there was such a pair of fourth powers which added up to a third fourth power, and then showed that if such a pair existed, there would also exist a smaller such pair, which would then lead to a still smaller pair, and so on, and so on, down to an infinitely small such pair -- which is impossible with the natural numbers, whose absolutely smallest exemplar is 1. This was an important early example of "proof by contradiction": assume that a proposition is true, and then show that the assumption leads to a contradiction.)

I first came across Fermat's Last Theorem as a teenager, and spent many long hours trying to imagine what an elementary proof of it could look like. In college, I took a course in number theory, and really explored the entire subject in depth. The problem is that proofs for higher and higher exponents quickly became very complex. (Work done by others established early on that there could be no example disproving the theorem if the exponents were even, and that of the odd exponents, only those that were primes needed to be tested and proved, since all the of the remaining possible exponents would be multiples of some prime.)

In 1975 or so, my sister sent me a supposed proof of the theorem authored by a colleague who taught mathematics with her. I looked it over very carefully, and could not spot any flaw in the argument, which proceeded based on a very ingenious factorization of the expression xⁿ + yⁿ = zⁿ. So I sent it on to a former roommate of mine who was now a professor of mathematics at a major university. In no time, he returned it to me with the flawed statement highlighted: the proof depended at one point on taking the absolute value of an expression. Since this was an illegitimate assumption which turned what could have been a negative quantity into a positive one (without multiplying both sides by -1), it disqualified the "proof". (My ex-roommate told me that people in his position received at least one such claim of a "proof" each week, and that part of the "curriculum" of becoming a professor of mathematics was to be able consistently to show that the claimed proofs could not be valid.)

I spent considerable time again with the factorization, trying to use it to reach a contradiction along the lines that Fermat himself could have done. No such contradiction, however, emerged. No matter how the different factors of the expression were broken down and analyzed, they kept their parity on each side of the factorized equation -- odd remained always odd, and even even. My plan for a parity contradiction evaporated slowly, over a considerable period of exploration.

I have not given up the quest, because I still have faith in Fermat, who was never known in his lifetime to claim he could prove anything for which subsequent mathematicians could not find an actual proof. It is too easy to opt out of the problem by saying that "Fermat must have found he was mistaken" -- if that is really the case, why did he simply not scratch out his marginal observation in Diophantus, instead of leaving it for posterity to discover, and take up his challenge?

It is quite possible to say that no single observation in the entire history of mathematics has ever been as fruitful, in terms of leading to ever higher methods of analysis, and to ever more proofs, than this one seventeenth-century observation of Pierre de Fermat, which I have quoted for you above.

The Doorbell - a Viral Video

The video below is one of the many entries submitted to the Power Line Prize Competition, which awarded a grand prize of $100,000 for the best dramatization, in any form, of the national debt crisis. It did not win one of the top prizes, but it is currently a candidate for the People's Choice Award. Just one minute long, it would make a perfect TV spot to spread the message:

As Power Line notes, this video has recently gone viral -- which was the point of the whole competition.

Locking the Barn Door Before More Horses Get Out

Christ Church, Frederica, St. Simon's Island, is a beautiful old church in the Diocese of Georgia -- the same Diocese which is in a legal battle with another Christ Church, in Savannah, over the latter's right to withdraw itself from the Diocese and the Episcopal Church. While Christ Church, Savannah is (or was) the oldest parish in the Diocese of Georgia, Christ Church, Frederica is the second oldest, having been founded by charter from the State Legislature in 1808. (Indeed, both parishes preceded the creation of the Diocese, which did not come into being until 1823. And therein lies the problem, as you will see.)

It would appear that the Diocese of Georgia now wishes to lock up the barn doors before another of its horses gets out. Since, like Christ Church (Savannah), Christ Church, Frederica predates the creation of the Diocese, they share in common the question of just when, and how, the parish actually "acceded to" and became "bound by" the diocesan and national Church's governing documents. Georgia's Bishop and its Chancellor have been reviewing the bylaws of Christ Church, Frederica, and in an unusual move, have pre-approved certain changes which they would like to see made to them.

Christ Church, Frederica has been operating until now under a set of bylaws that dates from 1947. They were updated most recently in 1979 -- the year the Dennis Canon was adopted -- and as so updated, have served the Church well and truly ever since.

But they are obviously not "tight" enough for the current Diocese's purposes, which are to see to it that none of its parishes can ever make arguments again like those which Christ Church Savannah is currently making to the Supreme Court of Georgia. For example, here is what the 1947 (1979) bylaws say about the authority of the Constitution and canons of the Episcopal Church (USA) and of the Diocese of Georgia (my emphasis added):

ARTICLE I.

The Constitution and Canons of the Protestant Episcopal Church of the United States of America, and of the same Church in the Diocese of Georgia are hereby recognized as authority for the guidance of this Parish.

Well, now -- that certainly does not seem to make them binding on the parish, does it? Have a look at what the Bishop and his Chancellor have pre-approved for the parish to adopt as its "revised" bylaws (again, my emphasis added):

Article I

Christ Church Frederica (the “Church”) is a body corporate organized under the laws of the State of Georgia, and maintains an office at 6329 Frederica Road, Saint Simons Island, Georgia, 31522. As provided in and by a Charter of the Church, granted October 10, 1929, by the Superior Court of Glynn County, Georgia, the Church is a constituent part of the Protestant Episcopal Church in the United States of America (The Episcopal Church), and has acceded to, recognized, and adopted the Constitution and Canons of The Episcopal Church and the Constitution and Canons of the Episcopal Diocese of Georgia and has acknowledged the authority thereof. The Church is a Eucharistic community of Christians (the “Parish”), which has acknowledged the ecclesiastical authority of the Bishop of Georgia in the Diocese of Georgia (the “Diocese of Georgia”), and its accession, recognition, adoption, and acknowledgment of the same and of The Episcopal Church are continued in full force and effect by virtue of the adoption of these bylaws on the ___ day of ______, 2011.

Now the old bylaws contain a recital of their origin and history, as follows (with, once again, my emphasis added):

The Church was incorporated by an Act in 1808. An amendment to the Church Charter was filed in 1929 with the Superior Court of Glynn County, Georgia. Further amendments to the Charter dated December 18, 1947, January 3, 1952, January 17, 1958, August 12, 1974 and March 5, 1979 were filed with the Georgia Secretary of State, all of which served to amend the Bylaws of the Church, i.e., the bylaws were incorporated in the Charter. The Church adopted bylaws in 1947, but those bylaws did not include provisions from the Church Charter as revised through December 18, 1947, and were not updated with the charter amendments from 1952, 1958, 1974 and 1979. The attached bylaws are the 1947 bylaws with all of the revisions to the charter from 1947, 1952, 1958, 1974 and 1979 incorporated therein.

So we are to understand by this language that all of the previous changes made by the Charter revisions of 1947, 1952, 1958, 1974 and 1979 were incorporated into the current edition of the bylaws, as posted on Christ Church, Frederica's Website. But if that is correct, then why is there no language in the current bylaws saying what the proposed revisions say, namely, that

. . . the Church has acceded to, recognized, and adopted the Constitution and Canons of The Episcopal Church and the Constitution and Canons of the Episcopal Diocese of Georgia and has acknowledged the authority thereof . . . [and] has acknowledged the ecclesiastical authority of the Bishop of Georgia . . . .

If that were truly so, one would expect to see in the current bylaws the same language of adoption, accession, and acknowledgment of authority -- but one does not. Instead, there is only the insipid recital that the diocesan and national governing documents are recognized "as authority for the guidance of this Parish." That is not legally binding language, and apparently the Bishop of Georgia and his Chancellor recognize the potential problems it would create if the parish were ever to decide to withdraw from ECUSA.

Moreover, they want the current act of adopting the new bylaws to paper over any past ambiguities, as well. For they propose the following language at the end of the new Article I (quoted above):

. . . [Christ Church, Frederica's] accession, recognition, adoption, and acknowledgment of the same and of The Episcopal Church are continued in full force and effect by virtue of the adoption of these bylaws on the ___ day of ______, 2011.

Another proposed change to the bylaws would make them more difficult to change again, in the future. As you can see from looking at Article VII of the current bylaws, it provides that "Such amendment or new By-Laws shall require the approval of a majority of the Vestry and a majority of the eligible voters attending the Parish meeting." But the proposed new bylaws will require amendment by two-thirds of the vestry, in addition to approval by a majority of the communicants attending a specially noticed parish meeting for that purpose, who are in in good standing and over the age of sixteen.

A final substantive change made by the proposed bylaws would introduce extensive provisions for the "indemnification" of:

. . . any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative . . . by reason of the fact that he or she is or was a Warden, Vestry member, clergy, employee, or agent of the Church or is or was serving at the request of the Church as an agent or employee of another organization . . .

(There is a lot more than just this -- see proposed new Article VII in its entirety.) What is the need for this change? Well, only the Bishop and his Chancellor know their intentions, and as far as I am able to learn, they aren't saying anything other than to recommend that the congregation adopt the new bylaws in toto, as "pre-approved." However, as a parish Chancellor of considerable experience myself, I can say what I would tell my own parish if someone asked why we should have such an indemnification provision in our bylaws. I would tell them that this provision will act as a "poisoned pill" in the event that any future majority should unwisely decide to try to take the parish out of the Episcopal Church after the adoption of these new bylaws. Even though they were the majority, this Article would require them to pay all the legal expenses of ("indemnify") the minority in the event that anyone in the minority (a Warden, Vestry member, etc. -- see Section 2 of proposed Art. VII) successfully enforced a Dennis Canon trust against the Church, again as a result of the adoption of these bylaws.

(These indemnification provisions appear to be all the rage now in dioceses undergoing litigation as a result of withdrawals. See, for instance, my earlier post discussing similar provisions claimed to have been added by the remnant minority to the bylaws of the Corporation of the Diocese of Fort Worth.)

Without the proposed changes in the bylaws, the Diocese (and ECUSA, too) would have to make the same arguments they (admittedly, thus far successfully) have made to the Georgia courts: that a long course of usage and conduct by the parish have resulted in the creation of an implied trust in their favor on the parish's buildings and property. The terms of this trust, being implied by law, are nowhere spelled out in so many words, but they arguably include the provision that should the congregation ever vote to leave ECUSA for another denomination, it would have to forfeit its historic building and property to them.

As I have previously pointed out, in my critiques of the two Georgia decisions thus far in the Christ Church (Savannah) case, implied religious trusts were held by the United States Supreme Court in 1969 to be unenforceable in the civil courts. In the Presbyterian Hull Church case (which came out of Georgia!), the Court decided that inquiring into the terms of such trusts would require the courts to involve themselves in disputes over religious doctrine, to a necessary degree that was absolutely prohibited by the Establishment and Free Exercise Clauses of the First Amendment. It is indeed for this very reason that we are waiting to see how the Georgia Supreme Court will deal with the Court of Appeals' decision, which affirmed the trial court's ruling that Christ Church (Savannah) was subject to an implied trust in favor of the Diocese and of ECUSA, notwithstanding what the United States Supreme Court said.

So the legal implications of passing the Dennis Canon in 1979 continue to play themselves out in the dioceses of ECUSA still more than thirty years later. The Dennis Canon cannot even arguably come into play against a parish unless that parish has by some act expressly agreed to "accede to and be perpetually bound by" the Constitution and canons of the Church and of its local Diocese. It would appear (at least without being able to see the actual language of its Charter and the various revisions made to it, which are not available on the Web) that Christ Church, Frederica never made any such express commitment.

But the Bishop of Georgia, his Chancellor, and the vestry of the parish are in the process of seeing to that.