Wednesday, May 30, 2012

All Is Well™ in the Church of "Can't We All Get Along?"

From St. Paul, MN comes this story of a pastor who grossly misjudged the tenor of his flock:
The reverend [sic] of a St. Paul church says he needs to raise $200,000 to pay off a church loan after most of his followers left…
The Rev. Oliver White runs Grace Community United Church of Christ in St. Paul. The 69-year-old said he needs to raise the money by June 30.
“We lost our income when we lost a number of people from our congregation.” White said.
My goodness gracious! Whatever could the Rev. White have said to cause his flock to desert him, and his future to be so black? We read on:
White said two-thirds of his followers left after he said he supported same-sex marriage, and said he was against the marriage amendment that will be up for a vote in November.
Oh, so that’s it. The Rev. White tried to whitewash the Holy Scriptures to his own liking, but his parishioners did not care for his attempt, and left him to be the black sheep (and pay the mortgage, to boot).
Has the good pastor perhaps learned his lesson?
The Rev. White? Not one whit:
“I think people are scared — scared of change, and what has been in the closet is finally coming out, and too many people are not willing to accept it,” White said.
And who changed, Pastor White? Was it Scripture, or was it possibly you?
Also, what really scared them, Pastor White? Was it the “Scripture” you suddenly discovered hidden in the dark all along, until precisely you decided to bring it into the light? Or could it be that you were the one who scared your flock with the sudden change in your religion, Pastor White? (Going from white to black will do that, you know.)
And why would you have thought you mightn’t scare them so, Pastor White?
He argued they have to accept it, adding that it’s a civil rights issue.
Ah—a “civil rights” issue, you say?
Would that be “civil rights”, as in your right to a speedy and fair trial on Judgment Day, Pastor White? Or as in your right to confess Christ crucified as your savior, even while you try to lead His flock astray—those seeking souls whom He has entrusted to your care?
Does anyone have “civil rights” before God?
But perhaps we misjudge you, Pastor White. Perhaps you were talking only of civil marriage, and not the marriage sacrament of Christ’s church, which symbolizes Our Savior’s relationship with His one, true Church.
“It’s time for our society to do as Rodney King did and say, ‘Can’t we all get along?’ That should be the 11th commandment as far as I’m concerned,” he said…
The “Eleventh Commandment,” Pastor White? That “we all just get along”? “Live and let live?” (It sounds as though you’re the one who wants to mix religion into civil life, Pastor White.)
Doesn’t that “Commandment” tend to undermine the first ten?
Why can’t my neighbor just live with it if I turn out my wife and invite his to move in with me? I just want to “get along” with her. What’s wrong with that?
“We should not try to legislate morality, in terms of who should get married and who can’t get married.”
But—but—Pastor White? Didn’t you just say that we should legislate your “Eleventh Commandment” into law, for everyone to follow?
How is it that, in the Gospel according to Oliver, society has to obey Rodney King’s commandments, but God’s are optional?
How did you expect that message to sit with your parishioners, Pastor White?
White said they are praying for a miracle donation, but says even if they lose the church, those remaining members will find another place to worship.
And just who is the source of miracles, Father White? It wouldn’t be that same God who joined the first man and the first woman together in holy matrimony, would it? Or are you now worshipping a different deity, whom you expect to save you and your remnant from having to find another place of worship?
Never mind answering that, Father White. I know what you would say, anyway, because all those pastors who are misleading their flocks say the same thing—even if they lose two-thirdsof their sheep:

“Never fear—all is well™.”

Saturday, May 26, 2012

Nicely Done, Judge Brister

Good lawyering is something all attorneys can appreciate, but in some instances it should be possible for lay persons to admire it as well. In this post, I would like to lay out, as best as I can, a particularly outstanding example of good lawyering in the Episcopal Church property litigation cases -- in the hope that some of the regular pewsters might come to recognize it for such, as well.

Let me set the background. The Episcopal Diocese of Fort Worth became a member of the Episcopal Church in the United States of America effective January 1, 1983. A group of parishes and their clergy who had been part of the Episcopal Diocese of Dallas determined, with the consent of that Diocese, to form their own ecclesiastical unit, with their own bishop. The necessary conventions were held, the votes taken, and on February 28, 1983 a non-profit corporation was organized under Texas law, to become the Corporation of the Episcopal Diocese of Fort Worth.  

It was agreed by the members of the new Diocese that the Corporation would hold title to the real property of all of its parishes and missions. Appropriate conveyances were executed and duly recorded to bring this about. Thereafter, every time a new mission or parish in the Diocese acquired any real property for its operations, the Corporation took the title in its legal name, and held it in trust for the particular mission or parish.

In November 2008, the convention of the Diocese of Fort Worth met and took a decisive vote: the overwhelming majority voted to de-accede from (withdraw their consent to) the Constitution and Canons of ECUSA. Since no Diocese can be a member of ECUSA without having such an accession clause in its own constitution, that change by the Episcopal Diocese of Fort Worth had the effect of making it no longer a member of ECUSA. Instead, the Diocese took temporary shelter under the administrative structure of the Anglican Province of the Southern Cone. In June 2009, the Episcopal Diocese of Fort Worth was instrumental in forming the Anglican Church in North America, and became a member diocese of that organization, by acceding to its Constitution and Canons.

Throughout this entire period, from 2008 until the present, the Diocese of Fort Worth remained a diocese, and its Bishop remained the Right Reverend Jack L. Iker. As the head of the diocese, Bishop Iker also served as the Chairman of the Board of Trustees of the diocesan Corporation. The other Trustees of the Corporation were elected by the diocesan convention. Since the Corporation was the legal agent of the Diocese, and was governed by officials chosen by the Diocese, it followed the Diocese itself in its peregrinations from ECUSA to ACNA.

When the diocesan convention voted in 2008 to change its Constitution and canons, a minority of parishes decided they wanted to remain affiliated with ECUSA. To do so, however, they first had to form a diocese of their own. In February 2009, these parishes and missions came together in a “special convention” at which they adopted a constitution and bylaws based on the old ones that had governed before the withdrawal. They agreed upon a provisional bishop to lead them, and without going through any of the requisite formalities of admission, the Presiding Bishop and President of the House of Deputies welcomed the new group, gave it recognition as a diocese of ECUSA, and allowed its representatives seat and voice at the very next General Convention that same summer. 

To distinguish it from the real article, which retains the title “the Episcopal Diocese of Fort Worth”, I shall call this second organization “the Ersatz Diocese of Fort Worth” -- using the German word Ersatz (“replacement, substitute”) to signal that it is not the genuine article. Although the leadership of the Episcopal Church (USA) may treat it as one of its member Dioceses, it has done so only to enable it to become a plaintiff in court as soon as possible. As I explain below, however, the judges are still out on whether or not the maneuvers of the ersatz diocese and its sponsor had any real effect under Texas law.

“What maneuvers?” you ask. Begin with the title to the properties of the dissenting parishes and missions, which at the time of the vote to disaffiliate, were still held (in trust for them) by the Corporation of the Episcopal Diocese of Fort Worth. Bishop Iker allowed the Corporation to transfer legal title to the individual entities, where there was a corporate body to receive it, and there was no debt owed to the Diocese. Before he could complete the transfers of all such properties, however, he was served with an extraordinary complaint filed by ECUSA, the ersatz diocese and its provisional bishop.

The complaint, in essence, charged that because Bishop Iker and his Diocese had voted to withdraw from ECUSA in the manner described, he and his other Trustees were no longer “qualified” to sit on the Board of Trustees of the Corporation. As a result, Bishop Gulick, the provisional bishop of the ersatz diocese, and five new trustees which he had decided to appoint, claimed that they would now control the Corporation, and consequently all of the property of the Episcopal Diocese of Fort Worth, in addition to the properties of just the dissenting parishes and missions -- thank you very much.

ECUSA itself (through its Presiding Bishop, acting without any legal authority) joined in the complaint, and alleged that all the property of the Corporation, held in trust for the individual parishes and missions, was further subject to a trust that such property could be used only for Episcopal Church (USA) purposes. Never mind that there was no writing signed by the Corporation expressing the terms of any such further trust. The lawsuit alleged that the trust was implicit in the governing documents of ECUSA, to which all member dioceses were forever and irrevocably bound. While individuals might signal their disaffiliation and withdraw from the Church, entities like Dioceses, and the corporations which they controlled, were forever joined to ECUSA at the hip, and no action by local officials (or national officials, for that matter), could ever dissolve the institutional ties between the Church and its member entities.

To use a by-now familiar word in this context, ECUSA claimed it was a “hierarchical” church, like the Roman Catholic Church, only without a pope. As such, its structures were forever locked into an indissoluble union, it claimed, that no mere State courts or State laws could affect in any way, shape or form, once it had come into being. If you were an entity that joined ECUSA, then once so joined, you could never, ever again leave.

The amazing thing was that ECUSA and its ersatz diocese persuaded a Texas judge to buy into their thinking, and to grant them summary judgment against Bishop Iker and his Diocese on all their outlandish claims. Sometimes a concept is so topsy-turvy that it really is hard to tell which side belongs up. It is difficult not to conclude that District Judge Chupp (brand-new on the bench, when the case started) simply threw up his hands, realized he had to make a ruling of some kind so there could be an appeal, and so signed the version of the order ECUSA’s attorneys presented to him -- even striking out, in the process, language which might have drawn attention away from the stark conclusions of law to which ECUSA claimed it was entitled.

Bishop Iker and his attorneys appealed the judge’s order directly to the Texas Supreme Court. This was a move which took the ersatz diocese and ECUSA by surprise, and is the first instance of the good lawyering I am going to explain in this article. Among the outstanding Texas barristers employed by Bishop Iker and his Corporation was Scott A. Brister, Esq., of the law firm of Andrews Kurth in Austin, who had served on the Texas bench for twenty years -- the last six on the Texas Supreme Court -- before resuming private practice. Under his leadership and advocacy, his clients convinced the present justices of that Court to bypass the Court of Appeals and decide the merits of the dispute at the highest level.

The Texas Supreme Court noted jurisdiction in the Fort Worth appeal (i.e., it agreed to hear the case) on January 6 of this year. The Court rarely grants such direct appeals, and attorneys in Texas took notice of the case. And now, please pay close attention, because the story behind the issuance of that order shows how the lawyering on Bishop Iker’s side has been truly outstanding.

Among the many cases presented to the Texas Supreme Court for decision the previous term was one that was decided without oral argument toward its very end, on June 24, 2011. With one justice not participating, the Court issued what is called a per curiam decision (not signed by any justice as author, but issued by the court as a body) in the case of Ganim v. Alattar, a dispute over the title to property claimed by two men who had once agreed to be partners.

The per curiam opinion sets out the facts of the case succinctly. At bottom, Ganim and Alattar were two former friends who had verbally agreed to invest in a 3,800-acre property together, through a partnership which they would form. Alattar signed the purchase contract for the property as “Trustee” of an unspecified trust. Although they each subsequently signed a partnership agreement, they then had a disagreement over what it said, and the partnership fell apart. Meanwhile, Alattar completed the purchase of the property, and took title as “Trustee” of an unspecified trust. Ganim sued to place his name on title, and claimed that Alattar held the property in trust for their still unresolved partnership.

A jury believed Ganim, and found that the two intended to buy the land jointly. The Texas Court of Appeals held that because the only agreement between them to that effect was an alleged verbal one (the written partnership agreement did not refer specifically to the land), it could not be enforced due to the Texas Statute of Frauds. That law requires that before courts can give them any legal effect, all agreements to purchase or hold any interest in real property be in writing, and signed by the parties to be affected by the transfer.

The Texas Supreme Court, as noted, issued its opinion unsigned, and without holding any oral argument (as is its prerogative). It reversed the Court of Appeals and reinstated the jury’s verdict, because it reasoned that the Statute of Frauds applied only to contracts to purchase land, and not to verbal agreements to form a partnership to buy land. In this case, it pointed out, the actual purchase agreement between the seller and Alattar was in writing. The agreement as to how Alattar was eventually to hold title was not, but the Statute did not apply to such agreements between prospective partners. (In Texas, as elsewhere, a partnership may be based on a verbal agreement only.)

In effect, the Court’s decision allowed anyone to plead around (avoid) the Statute of Frauds in any case involving the acquisition of title to real property by alleging a verbal agreement to hold title to the land jointly, or in trust, or in some fashion other than the actual way in which title was acquired on paper. Do you see why it generated some concern for Bishop Iker’s attorneys, who just two months earlier (on May 3, 2011) had filed their notice of a direct appeal of the judgment in their case with the Texas Supreme Court?

If Ganim could sue to put his name on real property as a joint owner with Alattar, without any writing to that effect signed by Alattar or the seller, without having put up any money  towards the purchase, and waiting until the sale to Alattar as “Trustee” had completed before making any claim that Alattar was really acting as the trustee for their alleged verbal partnership, then where was the limit on such claims? And if you were the attorney for a party who had just appealed to that same Court a judgment awarding complete title to a stranger (ECUSA), who likewise had no agreement in writing, no express written trust in any of the property at stake, and who had contributed no money whatsoever to the property’s acquisition, would you not be concerned about such a per curiam decision? 

Indeed you would -- and that is why, acting efficiently, attorney Scott Brister filed on behalf of his clients Bishop Iker et al. a most unusual amicus brief in support of Alattar’s petition for rehearing (“amicus” is Latin for “friend”; an amicus brief is one submitted in support of a particular issue or point, by one who is not a party to the case, acting as a “friend” to the Court).

The petition for rehearing had been filed with the Court (after receiving an extension of time) on July 26, 2011. Judge Brister had his amicus brief on file just three days later -- you may read it at this link.

The brief is a masterpiece of direct and clear argument. In three short sections, Judge Brister showed his former colleagues on the Court just where they had gone astray: they had overlooked a 1993 Texas statute which created a statutory presumption that property acquired in the name of one who is a partner is that partner’s own personal property, and is not partnership property unless partnership funds were used to acquire it, and the deed refers to the purchaser as the partner of that partnership. Ganim could show neither in his favor, and so the statute created a presumption against his allegations which no verbal evidence could overcome. 

Judge Brister also pointed out that the Supreme Court had relied on two opinions which neglected to take account of a 1943 amendment to the Texas Statute of Frauds, and which required that any express trust in real property be in writing, signed by person(s)  placing the property into trust.  

The amicus brief did not shy away from pointing out the problems which the Court’s decision in Ganim v. Alattar might raise for the Episcopal Diocese of Fort Worth in its appeal:
… the opinion’s suggestion that a claimant to property can plead around the statute of frauds and the Texas Trust Code by asserting nothing but an oral agreement for joint acquisition of land. Can a third party — who has no title, no signed writing, and no money at risk — become owner of real estate simply by convincing a jury that an oral promise of joint ownership was made many years ago? If that is Texas law, then claimants from Rome, Canterbury, or anywhere else might ask a jury to award interests in Texas church properties based on nothing but oral testimony about “understandings” from long ago. 
In other words, the predecessors in title to ECUSA’s churches, such as the Church of England acting through the Archbishop of Canterbury, might use the Texas doctrine to claim an ancient trust on all ECUSA properties which originated when it planted the first churches in the American colonies. Likewise, the Roman Catholic Church, through its Pope, might assert a trust of even more ancient origins in those same properties which came into being when the Church of England overthrew Rome’s jurisdiction over her.

All of this went on while ECUSA and its ersatz dioceses were preparing their responses to the jurisdictional statement filed in support of Bishop Iker’s appeal. There is no hint that ECUSA or its attorneys paid any attention to what was happening on Alattar’s petition for rehearing. Ganim filed a response on August 30, and Alattar filed a reply on September 12. Thereafter the matter was submitted.

Now note carefully what happened next. On January 6, 2012 (as mentioned earlier), the Texas Supreme Court entered its order noting probable jurisdiction in Bishop Iker’s appeal.  On January 20, just two weeks later, the Court entered an order granting Alattar’s petition to rehear the case. And on March 30, the Court entered a final order withdrawing its previous opinion in the case, and dismissing Ganim’s original petition for review as “improvidently granted.” 

I hope I have explained the sequence of events clearly enough so that you can appreciate the outstandingly good lawyering that went on here. Having guided his clients to a direct appeal with the Texas Supreme Court -- a move that will save them untold time and legal fees -- the attorney notices an obscure and relatively minor per curiam opinion issue just a few weeks later which presents a potential problem for the Court’s disposition of the issues presented in his case. The two cases are not identical, but they are close enough to be troubling for the attorney. 

As a means both of disposing of the potential problems, and also of calling the Court’s attention in a polite way to the issues which he plans to bring before the Court in his own case that he was asking them to review, the attorney promptly files an amicus brief which shows why the per curiam opinion is wrong, and should not have been issued. But in the process, he gains his former colleagues’ ear as to the reasons why they should agree to review the case he has brought to them. 

This bit of deft legal footwork earned the following expression of admiration from one of Judge Brister’s appellate colleagues who maintains a blog about the doings of the Texas Supreme Court:
The amicus strategy here is also instructive. Although many groups have some interest in how this rule applies to partnerships or trusts, this amicus brief had the secondary (or perhaps primary?) goal of highlighting the importance of the diocese’s pending direct appeal. Nicely done. 
Yes, Judge Brister -- nicely done.

Monday, May 21, 2012

On ECUSA's Apparent Ignorance of the Source of Holy Orders

With General Convention 2012 fast approaching, now starts what I call the Strange Dance of the Canons.

Proposals to change and amend the Canons (and Constitution, as well) of ECUSA begin to surface from every direction. Some come, like a debutante confident of her family's status, backed by the full weight of the Standing Commission on Constitution and Canons ("SCCC"); others are proposed by Dioceses, or by individuals. All are given a whirl on the dance floor of General Convention. And just as in real life, there is no advantage to actual merit -- instead, politics and influence are the order of the day.

Indeed, the continual willingness of General Convention to tinker with the Canons is one of the Church's greatest weaknesses. Legislatures come together to legislate -- but that does not mean that any, or all, proposals to legislate are worthwhile, or will actually improve things.

Let's take a look at one such proposal, which at least appears to have merit at first blush. Apparently some on the SCCC have actually been reading the Anglican Curmudgeon -- or dare I be so bold? Perhaps it was just that a breath of common sense took hold. Consider Resolution A030, which at last proposes to change the embarrassing language of the current canons dealing with the "voluntary renunciation of orders".

We saw those Canons at work, for example, in the extraordinary case of Bishop Henry A. Scriven, who had transfered from his original Diocese in the Church of England to come to the Diocese of Pittsburgh to assist Bishop Duncan in 2002.  As a condition of his acceptance, he was required to become a member of ECUSA's House of Bishops, and under ECUSA's Constitution (Art. VIII), he was required to take the oath by which he submitted to "the doctrine, discipline and worship" of the Episcopal Church (USA).

Then, in 2008, the Presiding Bishop decided to ignore the Canons in order to get rid of Bishop Duncan. Without first obtaining the consent of the three most senior bishops in the HoB, as required by the plain language of then-Canon IV.9, she brought a resolution before the September 2008 meeting of the House of Bishops to depose him. Overriding all protests against her canonical violations, she declared that the vote to "depose" Bishop Duncan had passed -- even though the majority did not even begin to approach the number of affirmative votes required by Canon IV.9 for such a resolution.  Continuing her swath through the Canons, she illegally pronounced Bishop Duncan "deposed" and signed a false certificate attesting to her misdeeds.

Illegality piled upon illegality. Because Bishop Duncan was no longer regarded as being in the House of Bishops, and because his Diocese had followed him out of ECUSA the next month, Bishop Scriven could not legally continue to function as an Assistant Bishop in the illegal rump Diocese of Pittsburgh, which some of its clergy conspired with the Presiding Bishop to create in place of the one that had left. (An Assistant Bishop may serve only under a diocesan, and even the illegal rump diocese could not come up with a bishop that fast. Moreover, due to his association with Bishop Duncan, some -- but not all -- of the clergy in the rump diocese would not have welcomed him in their churches.) So Bishop Scriven wrote to Presiding Bishop Jefferts Schori to tender his resignation from the House, and to announce his plans to return to the Church of England.

Apparently his simple request for resignation threw the Presiding Bishop -- she who routinely ignores the Canons when it serves her own purposes -- into consternation, because she could not find a Canon which would allow him to leave the Church simply by resigning from the House of Bishops.  (Among other things, there was that oath to ECUSA itself taken under Article VIII, remember?)

Pressing the Canons into a use for which they were never intended, she treated his letter as though it were a "voluntary renunciation of [episcopal] ministry" under Canon III.12.7. She signed a certificate under that Canon which declared that Bishop Scriven was "released from the obligations of all Ministerial offices, and is deprived of the right to exercise the gifts and spiritual authority as a Minister of God's Word and Sacraments conferred in Ordinations."

In other words, having joined the Episcopal Church (USA) temporarily to assist a diocesan, Bishop Scriven could, in the view of the Presiding Bishop, not leave it unless she declared him permanently removed from the ministry (though only "for causes which do not affect the person's moral character"). Talk about an embarrassment! Bishop Scriven good-naturedly laughed it off, crossed the Atlantic, and immediately assumed his new post under the Bishop of Oxford -- without having to be re-ordained in any shape, way, or form.

Thus, with its proposal of Resolution A030, the SCCC has finally seen what was wrong with such a draconian solution to a non-existent problem. As you can see from reading the proposed revisions to the text of Canons III.7.8-10 (deacons), III.9.8-11 (priests), and III.12.7 (bishops), the member of the clergy who no longer wishes to be in ECUSA, but who does not want to give up the orders theretofore received, signs only a document expressing a desire "to be released and removed from the ordained Ministry of this Church, and from the obligations attendant thereto, including those promises made at ordination in the Declaration required by Article VIII of the Constitution of the General Convention..." [emphasis added; and note that it is referred to as GC's Constitution, not ECUSA's].

The text of the proposed revisions still has mistakes (e.g., at line 61, the words "a renunciation of" should be stricken through), and one hopes that these will be caught and corrected before enactment. Noteworthy, however, is that the revisions do not stop with the voluntary renunciation Canons. They also seek to add a "Release and Removal" option to the Abandonment of Communion Canons (IV.9.16 [A] and [B]). And here is where the SCCC betrays its ignorance as to just what deposition achieves -- because it is apparently ignorant on the limits of what ECUSA, as just one denomination among many in the Church catholic, may actually accomplish with its decrees and pronouncements.

How would this revision work? As mentioned in connection with Bishop Duncan's case, the Presiding Bishop brings a resolution before the HoB to depose a member of that body who allegedly "abandons the Episcopal Church" by an act of open renunciation, or of affiliation with another religious body. (The revisions to Title IV approved in 2009 eliminated the requirement -- which this Presiding Bishop ignored, anyway -- that the three most senior bishops first consent to such bishop's inhibition; the Presiding Bishop now "restricts" the bishop in question upon certification of abandonment received from the Disciplinary Board for Bishops.)

Under the new proposed text of Canon IV.16, however, the HoB has two choices with regard to the abandoning bishop: it may depose him or her as before, or it may "consent to the release and removal of the subject Bishop from the ordained Ministry of The Episcopal Church...". The explanation for the change, as proffered by the SCCC, reads as follows:
... the current abandonment canon for bishops provides only one outcome in the instance of a bishop who has been found to have abandoned The Episcopal Church, which is deposition; by contrast, the abandonment canon for priests and deacons provides the option of removal in addition to deposition. The failure of the abandonment canon for bishops to provide the option of removal forecloses the possibility of a more pastoral response that might be appropriate in some instances. The proposed amendments make removal an option in the abandonment canon for bishops.
The problem is that "removal from the ordained ministry of the Episcopal Church" is no different, in either effect or significance, from deposition from that ministry. Both actions deprive the bishop of (a) membership in the House of Bishops; and (b) the right to function as a bishop (or lesser clergy) in services conducted in the Church.

Deposition, it is true, may cause a bishop to lose his ability to be received as a bishop in other churches in communion with the Episcopal Church (USA) -- but that decision is up to those other churches, and cannot be dictated by ECUSA. Because it was so irregular and uncanonical, the deposition of Bishop Duncan was not recognized by the Archbishop of Canterbury or by other Bishops in the Church of England, who have continued to receive him there as a bishop. Other primates in the Anglican Communion have likewise continued to extend full recognition to Bishop (now Archbishop) Duncan.

Clerical orders received in the apostolic succession are not such as to be valid in only one denomination -- when validly conferred, they are regarded as orders in Christ's church, the church catholic. A given denomination may remove the license of a clergy member to officiate in that church, and it may withhold granting such a license in the first place, but it cannot nullify holy orders without that person's voluntary consent. Just fifty years ago, Powel Mills Dawley could write, in his The Episcopal Church and Its Work (rev. ed. 1961, p. 88, footnote omitted):
The Episcopal Church  maintains the ancient principle of the indelibility of holy order -- that is, a minister can never be deprived of the spiritual character of the office conferred upon him by God through the action of ordination. But the right to exercise this ministry may for weighty cause be denied a man by the Church which once clothed him with that privilege and responsibility....
Thus the proposal seems to grant a flexibility which is not the Church's to exercise. Call it deposition or removal, its only effect is to deprive a bishop of his license to function as such in the Episcopal Church (USA). The notion that the latter may allow for "a more pastoral response" in a given situation is just so-much liberal-emotional flim-flam, by which those on the left fool themselves into thinking they are being more "humane."

Poor ECUSA -- it apparently thinks that it can unilaterally create a bishop which everyone else in the Communion must recognize perforce, just as it believes it can depose a bishop and have everyone else bow to an illegal act. It still thinks the ABC was wrong to reject Bishop Robinson at Lambeth in 2008, and wrong to receive Bishop Duncan in his palace later that same year. But it is powerless to force upon the Anglican Communion recognition of its acts in either case.

In just fifty years, therefore -- but especially under the lawless approach of its current Presiding Bishop -- the Episcopal Church (and, regretfully, its SCCC) appear to have lost sight of the nature and character of holy orders. They believe that orders come from their Church, and not from God -- thus they conceive that such orders may be "removed" as a milder alternative to their "cancelation," and they think that such orders may be "conferred" on anyone, as long as they observe the proper outward forms. But people who cannot grasp the concept of the sacredness, and consequent indelibility, of holy orders have no business tinkering with the disciplinary canons.

Monday, May 14, 2012

A Major New Find for Early Christianity

An unusual early Christian manuscript was offered for sale on the Istanbul flea market last week. Scholars identify the papyrus, which apparently survived in excellent condition after being hidden in what was once a summer palace in ancient Turkish Galatia, as shedding important light on the frustrations facing the campaign of the early Christian church to oppose all vestiges of paganism following the accession of the Emperor Constantine, and his decrees increasingly favoring Christians beginning in A.D. 313. The manuscript appears to be a letter from a former Christian church missionary in northern Galatia written to Archbishop Eudoxius of Constantinople in A.D. 360-61, just after that patriarch had assumed office. 
The letter is surprisingly contemporary in tone, and uses different-colored inks and lettering to make its points in a style not seen before in early papyri. It reflects the considerable difficulties its author had encountered -- particularly among younger people -- in asking them to put aside their polytheistic and pagan ways and to become followers of Jesus Christ. Of significance is that it was written right about the time that Julian the Apostate assumed the emperorship on the death of Constantius II, in November 361. The latter, as a Christian, had issued several decrees against pagans, including closing their temples and banning sacrifices.  The former earned the title "Apostate" because he tried to take the Roman Empire back to paganism. The author of the manuscript seems to believe that strategies such as Constantius' were harming the early Church, and favored moves such as those adopted by Julian upon his ascension. He (or she) also cites two anti-Christian polemics of the day by a certain Mercutius Leucippus, an author previously unknown to scholars.

A preliminary and unofficial translation, based on the work of author, scholar and speaker Rachel Held Evans, and using a typographical scheme to convey the different lettering styles, is as follows: 

When we ask our audiences, after telling them we are followers of Jesus Christ the Messiah, what words or phrases best describe us, the most frequent response among the younger ones is that we are “anti-pagan.” For a staggering ten cities in a row, this was the first word that came to their mind when asked about the Christian faith. The same was true for eight out of ten people we met on the road. (The next most common negative images? : “judgmental,” “hypocritical,” and “too rigid.”) 
In a book written against our teachings, titled unChristian, Mercutius Leucippus writes: 
“The pagan issue has become the ‘causa maxima, the negative image most likely to be intertwined with Christianity’s reputation. It is also the dimension that most clearly demonstrates the unchristian faith to young people today, surfacing in a spate of negative perceptions: judgmental, bigoted, sheltered, right-wingers, hypocritical, insincere, and uncaring. Outsiders say [Christian] hostility toward pagans...has become virtually synonymous with the Christian faith.”
Later inquiry, documented in Leucippus' You Lost Me, reveals that one of the top reasons six out of ten of our recent converts have left the church is because they perceive the church to be too exclusive, particularly regarding their Apollo-worshipping friends.  Eight thousand twenty-somethings have left the church, and this is one reason why. 
In my experience, all the anecdotal evidence backs up the surveys. 
When I speak at academies, I often take time to talk to students in the cenatio.  When I ask them what issues are most important to them, they consistently report that they are frustrated by how the Church has treated their pagan Hellenistic friends Some of these students would say they most identify with what groups like the Jesus-Jupiter Network term “Side A” (they believe pagan temples and ceremonies have the same value as Christian liturgies in the sight of God). Others better identify with “Side B” (they believe the Holy Eucharist  is God’s eventual intent -- but only after many years of patient and brotherly dialogue -- for pagans and Christians alike).  But every single student I have spoken with believes that the Church has mishandled its response to paganism. 
Most have close Latin- and Greek-speaking friends. 
Most feel that the Church’s response to pagansm is partly responsible for high rates of depression and suicide among their Greek and Roman friends, particularly those who are both multilingual and Christian. 
Most are highly suspicious of ministries that encourage men and women with pagan attractions to marry fully practicing Christians in spite of their feelings. 
Most feel that the church is complicit, at least at some level, in anti-pagan bullying.
And most...I daresay all...have expressed to me passionate opposition to legislative action against polytheism, such as that first introduced by the Emperor Constantine. 
“When apostolicals turn their anti-pagan sentiments into a political campaign,” one college senior on her way to the Vestal Virgins school told me, “all it does is confirm to my Latin-speaking friends that they will never be welcome in the church. It makes them bitter, and it makes me mad too.  This is why I never refer to myself as a Christian, except as necessary to get an imperial scholarship. The whole central idea -- that Christ was nailed as a criminal on a tree for everyone's so-called sins -- is a huge stumbling block to anyone's acceptance of it. Ugh. I’m embarrassed to be part of that group.” 
I [the author] can relate. 
When Bythnia's ruler amended his previous decrees by banning pagan-Christian marriage (even though it was already illegal under Roman law), members of my church at the time put signs in the agora declaring support for the initiative. From my perspective, the message this sent to the entire community was simple: EVERYONE BUT PAGANS WELCOME. 
Marcus and I left the church soon afterwards. 
Which brings me to North Galatia and Decretus Unum. 
Despite the fact that in North Galatia, as in all Roman provinces, the law since Constantius Secundus has stated that marriage in the eyes of state is only between a Christian man and a Christian woman (since churches will not marry pagans), a proposal permanently to ban mixed (pagan-Christian) marriage in the region's churches was put to the plebiscite. The decree doesn’t appear to change anything on a practical level (though some are saying it may have unintended negative consequences on Christian relationships), but seems to serve primarily as an ideological statement expensive, destructive, and impractical ideological statement. 
Freemen in North Galatia—who you would think would be more opposed to tampering with religious laws—supported the proposal, and last week it passed. Religious leaders led the charge in support of the amendment, with 93-year-old Gulielmus Grammicus taking out multiple inscriptions supporting the proposal in fora across the state. 
As I cast my urim and thummim last night in the caupona, the reaction among my friends fell into an imperfect but highly predictable pattern. Christians over 40 were celebrating. Christians under 40 were mourning.  Reading through the comments, the same thought kept returning to my mind as occurred to me when I first saw that Gulielmus Grammicus inscription: You’re losing us
I’ve said it a hundred times, and I’ll say it again...(though I’m starting to think that no one is listening): 

My generation is tired of the Christian-pagan culture wars. 

We are tired of fighting, tired of vain efforts to advance the Kingdom through politics and power, tired of drawing lines in the sand, tired of being known for what we are against, not what we are for. 
And when it comes to paganism, we no longer think in the black-at-white categories of the generations before ours. We know too many wonderful people from the Greek and Latin communities to consider polytheism a mere “issue.” These are people, and they are our friends. When they tell us that something hurts them, we listen. And Decretus Unum hurts like hell. 
Regardless of whether you identify most with Side A or Side B (or with one of the many variations within those two broad categories), it should be clear that proposals like these needlessly offend Greeks and Romans, damage the reputation of Christians, and further alienate young adults—both Christians and pagan—from the Church. 
So my question for those apostolicals leading the charge in the culture wars is this: Is it worth it? 
Is a political “victory” really worth losing hordes of more young people to cynicism regarding the Church?
Is a political “victory” worth further alienating people who identify as pagan?
Is a political “victory” worth perpetuating the idea that apostolical Christians are at war with Jupiter- and Juno-worshippers?
And is a political “victory” worth drowning out that quiet but persistent internal voice that asks—what if we get this wrong? 
Too many Christian leaders seem to think the answer to that question is “yes,” and it's costing them.  
Because young Christians are ready for peace.
We are ready to lay down our arms. 
We are ready to start washing feet instead of waging war.  
And if we cannot find that sort of peace within the Church, I fear we will look for it elsewhere. 
* * *
[End of unofficial translation.] There is no indication of whether Eudoxius ever replied to this letter -- shortly after it was written, his main problem became disagreements over Arianism. Indeed, the location where it was found -- upper Galatia, which is not known to have been visited by Eudoxius -- may be an indication that, for whatever reason, the letter was never sent.

Thursday, May 10, 2012

More Hollow Gains, Apparently

This story just broke in the Los Angeles Times: "Episcopal Church is rightful owner of properties, court rules". At this point, I have no more information than what the story conveys -- that an Orange County judge has granted summary judgment in favor of the Diocese of Los Angeles and ECUSA against St. David's Anglican parish, in North Hollywood, and against All Saints Anglican parish in Long Beach.

My previous understanding had been that the trials in these cases were trailing the resolution of the principal case of Diocese of Los Angeles vs. St. James Parish [of Newport Beach], but apparently no longer. The latter case has still to be resolved, while now summary judgments have been entered in the two other Diocese of Los Angeles lawsuits over church properties.

There is a complicating issue involved in the St. James case -- one that doubtless prevented it, too, from falling to a judge's gavel on summary judgment. And that is the issue of waiver. For when St. James planned to add to its facilities, and had secured a substantial donation to enable purchase of the property and construction on it, the donor insisted that St. James first obtain from the Diocese a waiver of the Dennis Canon. That waiver, signed by then-Canon to the Ordinary (and "Attorney-in-Fact" for the Bishop) D. Bruce MacPherson, was duly delivered (see Exhibit A, at p. 11), and the donor made good on his promise.

I am troubled by these paragraphs in the article:
In filing its motion for summary judgment in the cases involving St. David's and All Saints, the Episcopal Church contended that a ruling should be issued based on the 2009 Supreme Court decision, said John Shiner, lead counsel for the diocese.  
"I was very pleased with the ruling today," Shiner said. "The court followed the precedent set by the California Supreme Court and other appellate decisions, which we have always felt are relevant to our current disputes."
The ruling by the California Supreme Court was a ruling on St. James' demurrer to ECUSA's complaint against that parish. The courts are required on a demurrer (a defendant's challenge to the legal adequacy of a complaint) to regard all allegations in the complaint as literally true -- but only for purposes of determining if the complaint states a claim which a court may redress. If the complaint is found adequate, the defendant then answers it by denying its key allegations, and the parties are left to their proofs, according to their respective evidence. The one who carries the burden of proof as to conflicting evidence is the one who wins -- in a civil case.

Thus the California Supreme Court's ruling in 2009 was not a ruling based on facts found after a contested trial. It was a ruling which took the allegations of ECUSA's complaint (including its Dennis Canon) as having been established, for purposes only of the demurrer. Thus its holding said, in effect, "If the plaintiff ECUSA can prove that all its allegations are true, then California law would say that it becomes the owner of the parish property when the latter leaves its jurisdiction."

For ECUSA and the Diocese of Los Angeles to have been granted summary judgment against St. David's and All Saints, it must have established to the court's satisfaction that there were no disputed facts which required a trial. The court instead could decide the case right now, based only on the undisputed facts.

And doubtless, those "undisputed facts" included the so-called "hierarchical" nature of ECUSA, as a matter of law, etc., etc.  Once ECUSA is deemed "hierarchical" as a matter of law (i.e., no factual proof to the contrary will be allowed), then its ability, as such a church, to impose trusts unilaterally on all of its parishes' individual properties follows. All it has to do is enact a canon declaring that such a trust exists forthwith (the Dennis Canon).

In other words, if summary judgment was granted based on such a determination as I have described, then we have presented, for purposes of an appeal from the decision, exactly the same grounds raised in the current petitions pending before the United States Supreme Court. That Court is expected to indicate by the end of June whether or not it will grant those petitions -- in order to decide whether state courts may extend to a national church such as ECUSA, without violating the First Amendment, the ability to bypass, and be exempt from, state-law requirements for the establishment of a trust when it does not itself own the property being "placed" in a trust.

I may have more to say after I secure a copy of the court's decision. But for now, the affected parishes should be praying that the Supreme Court will finally see good reason to halt this madness of allowing a single type of arbitrarily abusive church to confiscate -- just because the courts say it can, solely for purposes of punishment, and for no other purpose that it factually demonstrates -- a property which a local parish has acquired, paid for, developed and maintained all on its own.

[UPDATE 05/12/2012: Apparently the court's understanding of these cases was even worse than the bare newspaper account reflects. The arguments before Judge Kim Dunning, assigned to the cases from the Complex Civil Panel in Orange County, carried over from Wednesday afternoon to Thursday morning. Judge Dunning apparently announced at the start of the arguments that she regarded the nature of the Episcopal Church (USA) not open to question in her court, because it had already been decided (but on demurrer!) by the California Supreme Court, and any further inquiry would involve the court in questions of ecclesiastical governance and polity to a degree that was impermissible under the First Amendment. And with that announcement, all the rest of her conclusions were foregone conclusions, and the cases were over. She held that the passage of the Dennis Canon could not be questioned, or raise any disputed issue of fact; and she regarded the Episcopal Church (USA) -- even though she refused to allow  evidence as to its nature -- as "a superior religious body or general church" for purposes of applying Corp. Code section 9142 (c), which allows such churches, but no others, to impose trusts on parish properties by including such a provision in their governing documents.

Thus her ruling granting the motions for summary judgment by the Diocese of Los Angeles was verbal, at the end of the arguments; it will be reduced to writing by counsel, and if all agree on its form, then it will be submitted to the judge for her signature. At that point, the losing parishes may file their notices of appeal.

It will be almost mandatory to appeal such a one-sided ruling that so ignores the law of "neutral principles" to decide disputes over church property. It is anything but neutral to foreclose all inquiry into just how a church might be regarded as "hierarchical" or not. And it is error, plain and simple, to read a higher court's ruling on a demurrer as foreclosing all factual inquiries into matters which were simply alleged in a complaint, and which the higher court was required to deem as proved.

Chalk up Judge Dunning as yet one more judge who is unqualified to preside over a church property case, because she does not, or deliberately will not, understand how the law applies to such a case. But as I have observed elsewhere, such judicial obtuseness over religious questions is becoming more and more par for the course. The unfortunate result is to make the road easy for religious bullies like the Diocese of Los Angeles and the Episcopal Church (USA).]