Saturday, June 30, 2012

Stalinist Tactics Deployed to Silence ECUSA Bishops in Court (UPDATED)

The following is an email received yesterday by resigned (retired) Bishop Edward Salmon and two other bishops from the Intake Officer for the Disciplinary Board for Bishops, the Rt. Rev. F. Clayton Matthews:
June 28, 2012
The Rt Rev’d Edward L. Salmon, Jr.
The Rt Rev’d Peter H. Beckwith
The Rt Rev’d Bruce MacPherson

Dear Ed, Peter, and Bruce,

As the Intake Officer for the Church, I am obliged to inform you that a complaint has been received against you for your action in signing affidavits in opposition to a motion for Summary Judgment made by representatives of The Episcopal Diocese of Quincy and The Episcopal Church in the Fall of 2011 to secure the Diocesan financial assets from a breakaway group. In the next few weeks, I will initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 of the Constitution and Canons of the Episcopal Church.


I reported previously on how the Episcopal Church (USA) lost its motion for summary judgment in the Quincy litigation in this post. It appears (see below) that there are those in the Church who did not take kindly to the three bishops' role in that defeat.

And now, your Curmudgeon must regrettably report yet one more instance of Johnson's First Law of Episcopal Thermodynamics: "Every joke you make about the Episcopal Organization eventually comes true." Word has come also that, as foreseen (satirically, alas) in this earlier post, the same kind of "charges" have been filed with the Disciplinary Board against the seven bishops who dared to sign an amicus brief addressed to the Texas Supreme Court in the Fort Worth litigation:
The Rt Rev’d Maurice M. Benitez
The Rt Rev’d John W. Howe
The Rt Rev’d Paul E. Lambert
The Rt Rev’d William H. Love
The Rt Rev’d D. Bruce MacPherson
The Rt Rev’d Daniel H. Martins
The Rt Rev’d James M. Stanton

Dear Maurice, John, Paul, Bill, Bruce, Dan, and Jim,

As the Intake Officer for the Church, I am obliged to inform you that a complaint has been received against you for your action in filing of Amicus Curiae Brief in the pending appeal in the Supreme Court of Texas in opposition to The Episcopal Diocese of Texas and The Episcopal Church. In the next few weeks, I will initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 of the Constitution and Canons of e Episcopal Church.


We also know, from postings on the HoBD list serve, that one of ECUSA's attorneys in the Fort Worth litigation, Kathleen Wells, Esq., who is the chancellor for the faux diocese of Fort Worth (and whose whole career is thus now devoted to working for and defending a legal fiction), has been agitating for a "litmus test" for all new bishops: determine whether or not they agree with 815's view of ECUSA as a total hierarchy, as it has been proclaiming in all its litigation.

Since the amicus brief was filed against Chancellor Wells' official position in the Fort Worth litigation, it is not too much of a stretch to guess at who may have initiated the filing of these "charges" with the Disciplinary Board. {Curmudgeon's Side Note: If she did, she may have disciplinary charges of her own to face, before the Texas bar. Those more familiar with the Code of Professional Ethics for members of the bar there may comment on the details, but in California, at least, it is an ethical violation for a member of the bar to instigate criminal or disciplinary proceedings against an opponent in order to gain an advantage in a civil case. If she is the one at the bottom of these charges, then she certainly would be trying to gain an advantage from it. The same would be true of David Booth Beers and/or Mary Kostel at 815, only they would be held to standards of professional discipline under the Code in the District of Columbia.}

Needless to say, these "charges" should never make it past the Intake Officer. Why they require investigation "over the next few weeks" is beyond this canon law attorney. To be sure, Bishop Matthews is unable to dismiss the charges on his own if the Presiding Bishop objects to that dismissal.  Canons IV.5.4 and IV.5.5 state in part as follows (note that in the case of charges against bishops, Canon IV.17.2 (c) provides that "Bishop Diocesan" shall mean the Presiding Bishop):
Sec. 4. Upon receipt of such information, the Intake Officer may make such preliminary investigation as he or she deems necessary, and shall incorporate the information into a written intake report, including as much specificity as possible. The Intake Officer shall provide copies of the intake report to the other members of the Reference Panel and to the Church Attorney.  
Sec. 5. If the Intake Officer determines that the information, if true, would not constitute an Offense, the Intake Officer shall inform the Bishop Diocesan of an intention to dismiss the matter. If the Bishop Diocesan does not object, the Intake Officer shall dismiss the matter...
Bishop Matthew's email does not notify the bishops that he is dismissing the charges. To the contrary: he states that he will "initiate a disciplinary process according to Title IV Canon 6 Sec. 3 & 4 ...". Those Canons spell out the offenses for which clergy may be charged, and would be irrelevant if the charges were being dismissed. Consequently, either Bishop Matthews wanted to dismiss the charges, but the Presiding Bishop objected; or else Bishop Matthews truly believes the charges may constitute an offense under the Church canons, and so he is proceeding with his investigation. (There would be no reason for him even to advise the bishops of the complaints if he did not think they presented actionable charges under the Canons.)

But just what does it mean to say that ECUSA is or is not "hierarchical"? In legal proceedings, such a statement is called a "conclusion of law", reached after an inquiry into all the relevant facts. Attorneys and judges differ all the time over conclusions of law, and so it is fair to say that what the law will conclude on a given set of facts is a matter of opinion. And that is why the bishops filed their various affidavits and brief: ECUSA had given its opinion to the judges in each case that it was "hierarchical," and the bishops simply wanted to give the contrary version of that opinion.

After all, it is for the judges ultimately to decide which view is more correct (or to modify their holding to yet another version, if they are so inclined). That is what judges are paid to do. So how can the Episcopal Church (USA) possibly charge someone with discipline for expressing an opinion? Such a right is guaranteed to everyone in America by the First Amendment.

Well, if it is not opinion in the case of the Episcopal Church (USA), then is it a matter of Church doctrine? Is the polity of the Episcopal Church (USA) truly a "doctrinal" matter?

It does not matter if it were, because then the following provisions of Canon IV.17.7 would apply:
Notwithstanding any provision of this Title to the contrary, no proceeding shall be brought under this Title against a Bishop in which the Offense alleged is violation of Canon IV.4.1(h)(2) for holding and teaching, or having held and taught, publicly or privately, and advisedly, any Doctrine contrary to that held by the Church unless a statement of disassociation shall have first been issued by the House of Bishops as provided in Canon IV.17.7 (a) and thereafter the consent of one-third of the Bishops qualified to vote in the House of Bishops has been received to initiate proceedings under this Title as provided in Canon IV.17.7 (b).
Needless to say, no such "statement of disassociation" has been issued by the House of Bishops. Thus Bishop Matthews cannot be treating the bishops' offense as a matter of advocating false doctrine.

That takes us back to expressing a matter of opinion. One searches in vain through the new Title IV for any offense that consists of expressing an opinion at variance with the leadership of the Church. The loosest of all the provisions is for engaging in "conduct unbecoming a member of the clergy", and if it is "conduct unbecoming" to disagree with the position that ECUSA is hierarchical, then a considerable number of clergy in the Church would have to be charged.

The idea, of course, is ridiculous on its face. And that is why these "charges" against these bishops should never have made it past the Intake Officer in the very first place. He could have informed the Presiding Bishop that the charges, even if true, did not rise to the level of an offense under the Canons. And if the Presiding Bishop then did object to dismissing them, she herself might be charged under the provisions of Canon IV.3.1 (c):
Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for: (c) intentionally and maliciously bringing a false accusation . . . in any investigation or proceeding under this Title.
(Emphasis added.) These charges are certainly intentionally brought, because it takes, as noted above, the concurrence of the Presiding Bishop not to have dismissed them in the first instance. And are they "maliciously" brought as well?

Those who know the history of the Presiding Bishop's disregard for the canons will have no hesitation in answering that question.

[UPDATE 07/02/2012: The Anglican Communion Institute, whose clergy members also signed the Fort Worth amicus brief (but who have not, to their knowledge, been charged) has now weighed in on this sorry affair. The article is too long to summarize here, but is well worth your time, so go and read the whole thing. Also, Bishop Dan Martins provides his own personal perspective on why he signed the Fort Worth brief, and what it feels like to be the object of unspecified and vague charges.

The Midwest Conservative Journal also joins in the chorus of dismay, and has written about the proposed "litmus test" for new bishops as well. Meanwhile, the blogs on the Episcoleft content themselves with just the facts, ma'am, just the facts. Other than a mild remonstrance from the Rev. Canon Mark Harris, there are zero expressions of dismay from the Church's left wing.]

Friday, June 29, 2012

Anglican Unscripted Celebrates Its First Anniversary

I would like to commend Kevin Kallsen and the Rev. George Conger for their collaboration and excellent work in producing the weekly news show about all things Anglican, called "Anglican Unscripted." (This is only one of the offerings of Kevin Kallsen's ministry at Anglican TV, to which you will find a standing link in the "Anglicannon in Front" group at the right.) They have now been doing this for a year, and yours truly has been privileged to work with them for almost that long.

Below please find their anniversary offering, Episode 44 of Anglican Unscripted (click the full-screen icon and select the highest resolution for the best viewing conditions). Please donate to Anglican TV if you can, and keep this wonderful ministry going -- it is truly a labor of Christian love on the part of all concerned.

Thursday, June 28, 2012

Supreme Court Does the Unexpected

The Supreme Court has ruled, 5-4, that the individual health care mandate passes constitutional muster as a tax, even though it is invalid under the Commerce Clause:
Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.
In other words, if you don't want to follow the mandate, you pay the tax (penalty/fine ... whatever). Chief Justice Roberts sided with the liberals in upholding it as a tax, and joined the conservatives in finding that it violated the Commerce Clause, and could not be sustained under the Necessary and Proper Clause. (That is actually a big win, because it puts a limit on Congress' ability to enact future social welfare laws by resorting to those enumerated powers.)

At the same time, the conservatives (again with the Chief Justice) managed indirectly to limit the application of, but not invalidate entirely, the Medicaid provisions. Justices Ginsburg and Sotomayor would have upheld the Medicaid provisions just as Congress wrote them, including the discretion granted to the Secretary of Health and Human Services to withhold "all or any part" of a State's Medicaid reimbursements unless it provided the expanded coverages that Congress added through the Act. Chief Justice Roberts, joined by Justices Breyer and Kagan, viewed the grant of this discretion as too coercive, and hence unconstitutional:
Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.
The four dissenters agreed, but regarded the rest of the Medicaid provisions as non-severable, while the Chief Justice and Justices Breyer and Kagan found they could be severed. For the dissenters, accordingly, the invalidity of the discretion granted to the Secretary meant the invalidity of all of the Medicaid expansion provisions. This would have left the rest of the Medicaid provisions in limbo, with four voting to strike them down in toto, two voting to uphold them as constitutional in their entirety, and three holding that although they were partly  unconstitutional, the remedy was to sever the constitutional parts from the parts that were unconstitutional. By concurring in part IV-B of the Chief Justice's opinion (agreeing to keep the rest of the Medicaid provisions intact by severing them), therefore, Justices Ginsburg and Sotomayor produced five votes in favor of the remedy of severance. In the process, however, the Chief Justice, the four conservatives and two liberals (Breyer and Kagan) constituted seven votes in holding that Congress had gone too far in providing the Secretary with such coercive powers. And that, dear readers, is an instance of the politics of the Supreme Court in action.

[UPDATE 06/28/2012: For one of the most interesting reads yet on the constitutional politics that could lie behind the unique position taken by Chief Justice Roberts in this case, I recommend this article by Prof. Joshua Hawley, one of Roberts' former law clerks. And just for fun, then read this interpretation of the same opinion by Prof. Laurence Tribe, who taught John Roberts constitutional law when he was a student at Harvard Law School.]

The joint dissent by Justices Scalia, Kennedy, Thomas and Alito reads for the most part as though it had initially been drafted as the majority's opinion. Time and again it refers to Justice Ginsburg's opinion as "The Dissent", and it responds to the arguments of "the Federal Government" (i.e., the Obama administration, through its Solicitor General), instead of to the Chief Justice specifically. The parts which do question the Chief Justice's opinion seem to have been inserted afterward.

Could this mean that there was an original majority consisting of the four dissenters plus the Chief Justice who were in favor of striking down the entire Act? And that at some point, the Chief Justice became persuaded that the Act could be upheld as an exercise of the taxing power? We will probably have to wait a long time to find out, when the Chief Justice eventually writes his memoirs.

Bottom line: we are stuck with Obamacare largely as passed. The vote of Chief Justice Roberts saved most of the Act, 5-4, and limited (by the same margin, 5-4) the one part of the Act he did not like. He voted with the four liberals to uphold the mandate, and also to keep the Medicaid provisions of the Act while limiting the conditions that Congress can attach to its funding.

The one major problem I see with the majority's ruling has not been addressed: the issue of forcing people to enter into contracts under duress. If you have to enter into a contract or else pay a fine, then there is an excellent argument that any such forced contract is involuntary, and hence voidable.

The other inconsistency I see is between part III-C and part IV-A of Chief Justice Roberts' opinion. In brief, he regards it all right for Congress, under its taxing power, to coerce private citizens into buying insurance by threat of a penalty for not doing so (part III-C), but as improper for Congress, under its spending power, to try to coerce the States into providing the expanded coverages it enacted for certain groups. He manages this feat by calling the first instance an "incentive," while terming the second instance "a gun to the head."  I find this distinction constitutionally unpersuasive.

[Note: I have, after carefully studying the opinions, revised my earlier account of the voting on the Medicaid provisions, which had been based on first impressions gleaned from the live SCOTUSblog.  I believe the above account now presents a more accurate reading of the positions of the Justices.]

Tuesday, June 26, 2012

Unfortunately, not by the Anglican Curmudgeon

The great Brahms once responded to an autograph request by penning a few measures of Johann Strauss' famous Blue Danube Waltz, and then writing: "Unfortunately not by Johannes Brahms."

I feel the same way about this marvelous post at, leading up to the Supreme Court's decisions this Thursday on Obamacare: "unfortunately, not by the Anglican Curmudgeon." I'm afraid that, just as you would have to read music to recognize the piece that Brahms was referring to, you will have to be an attorney and Supreme Court scholar to get many of the inside gags in this parody.

At the end, I will offer a few guideposts to orient lay readers to what follows. 
Breaking News: Husbands and Wives of Nation’s Constitutional Law Professors Collectively File for Divorce  
Posted on June 25, 2012  
RENO, NEVADA (Press International), June 25, 2012: The husbands and wives of the nation’s estimated 543 married Constitutional Law professors collectively filed for divorce today in Nevada state court, alleging that their spouses’ complete obsession with the United States Supreme Court’s upcoming ruling on the Affordable Care Act had effectively destroyed their marriages.  
“It all started pretty innocuously, with him writing a simple symposium piece on whether early 19th Century precedents could somehow justify the ACA’s individual mandate,” said Marla Thompson, wife of UC-Irvine law professor Farley Thompson. “But then Farley got obsessed–the ACA litigation just took over his life. He told me that we couldn’t eat broccoli for dinner because the vegetable represented a ‘tool’ in the hands of the ‘Lochnerians.’ He would come home and read nothing but ancient admiralty treatises and Whiskey Rebellion conscription notices. He wouldn’t even carpool to work with me, unless I conceded at the outset of each trip that the government could properly demand that I replace our Honda with a Chrysler.”  
Spouses of law professors known to oppose the ACA’s mandate voiced similar complaints. “I wish I had never heard of the Hkolov Cabal,” said Lawrence Tribkin, husband of Notre Dame professor Candace Yanders, referring to the law blog that has served as a central forum for anti-ACA commentary. Yanders, formerly known for her well-regarded work on the Nineteenth Amendment, “guest-blogged” on that site during May 2012. There, she revealed what she learned from 720 continuous hours of listening to the March 2012 oral argument on the ACA, as placed on a continuous loop in her office. In her post, Yanders asserted that if one plays the full audio recording of the oral argument backwards, at one point what sounds like Chief Justice John Roberts’ voice can be heard to say either “the ACA is dead,” or perhaps,”thacadad.”  
Yanders, who has petitioned to change her name to “Metta World Barnett,” subsequently was committed to a mental institution for treatment.  
On the courthouse steps, other petitioners related dysfunctional behaviors by their spouses such as: insisting, for several months running, that they were “this close” to being invited by SCOTUSblog to offer guest commentary on the ACA; repeatedly manipulating dinnertime servings of mashed potatoes into busts of Paul Clement; passing off suppositions about Justice Kennedy’s likely vote on the ACA as “bedtime stories” to young offspring; and otherwise obsessing about absolutely every single aspect of the ACA litigation.  
The worst part, many of the spouses said, was the waiting. “I thought that this would all be over by June 18.” said Ron Anders, the husband of Ohio State University’s Thomas Chavez. “But no decision from the Court. Then, maybe earlier today. Again, no decision from the Court. Meanwhile, all Tom does, twenty-four hours a day, is sit in front of his computer hitting ‘refresh’ on the Supreme Court’s website. He hasn’t showered in something like three weeks now. I wish that we could go back to a simpler time, when all we worried about was what movie to go see on Friday, and whether the Second Amendment applied to the states.”
* * * * *

Now, here are some endnotes for those who couldn't get all the references:

"Farley Thompson" is a made-up name, as are many in this post. It could refer to Dean Erwin Chemerinsky of the U.C. Irvine Law School,  who has written and spoken extensively about Obamacare, and has gone from predicting two years ago a victory for the mandate, to predicting just a week ago that it could go either way.

"Lochnerians" is a reference to the much-maligned 1905 case of Lochner v. New York, in which the Supreme Court struck down a New York statute regulating bakers' hours on the grounds that it interfered with individuals' freedom to contract for themselves. Those who argue that if Congress can force everyone to buy health insurance, it could also force everyone to eat broccoli to remain healthy are said to be "neo-Lochnerians."

The "Hkolov Cabal" is, of course, the Volokh Conspiracy ("Hkolov" = "Volokh" spelled backwards), a law blog (linked on the right) that has carried extensive debates pro and con regarding Obamacare, but mostly contra. "Lawrence Tribkin" is a take-off on Laurence Tribe, a constitutional law professor at Harvard, who predicted today that his former student, Chief Justice John Roberts, would vote to uphold the mandate.

"Candace Yanders", aka "Metta World Garnett", appears to be a complex amalgam. First, there is law professor Randy Barnett, who blogs at the Volokh Conspiracy, but who teaches at Georgetown (not Notre Dame), and who has published work on the Ninth (not Nineteenth) Amendment, as well as writing and speaking extensively in opposition to the universal mandate. (He was recognized as a target of this spoof by his co-bloggers in this post.)

Then there is law professor Richard W. Garnett, who does teach at Notre Dame Law School (in constitutional law and political science), and whose employer (Notre Dame) brought one of the lawsuits against Obamacare. He has recently written against the liberal threats made against the Supreme Court justices if the conservative majority (which would have to include Justice Kennedy) rules Obamacare unconstitutional.

"Metta World [Peace]" is, of course, the Los Angeles Lakers basketball player formerly known as Ronald Artest, who was recently suspended from seven games by the NBA for elbowing another player.

"Thomas Chavez" appears to be another fictional character. His last name, coupled with the reference to the Second Amendment, definitely refers to the Venezuelan dictator, who recently banned all gun ownership in his country. But "Ohio State" has echoes of one of the key cases cited in support of the mandate: the 1942 decision in Wickard v. Filburnin which the Supreme Court ruled that the federal government's power under the Commerce Clause could prohibit Roscoe Filburn, an Ohio farmer, from growing more wheat for use on his own farm (and fine him in the process).

For an earlier parody by Noncuratlex of the Obamacare oral arguments before the Supreme Court, follow this link. (The name Noncuratlex is a play on the Latin maxim "De minimis non curat lex", or "the law does not care about trifles".)

Monday, June 25, 2012

Supreme Court Healthcare Decision This Thursday

[IMPORTANT UPDATE 06/25/2012: The Court's decision in the Arizona immigration case had not been published for more than five hours before the Obama administration announced that it is suspending all cooperation with Arizona law enforcement to determine the status of illegal immigrants. This is lawlessness at the highest level of our country. The question is whether or not we are too polarized to do anything about it. See more below.]

This morning, the U.S. Supreme Court announced a decision in three of the cases pending before it. It summarily reversed (i.e., without hearing arguments or having additional briefs), by a vote of 5-4, the Montana Supreme Court's decision refusing to apply the U.S. Court's previous holding in Citizens United v. Federal Elections Commission. Here is the decision announced today, in its entirety:

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” Mont. Code Ann. §13– 35–227(1) (2011). The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220, 271 P. 3d 1. In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” 558 U. S. ___, ___ (2010) (slip op., at 26) (internal quotation marks omitted). The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case. 
The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed. 
It is so ordered. 

The liberal justices (Ginsburg, Breyer, Sotomayor and Kagan) dissented. There was no point in granting certiorari and putting the case down for oral argument, because the majority (the five justices joining the per curiam opinion above) were not going to reconsider their holding in Citizens United.

In another 5-4 ruling, the Supreme Court held that the Eighth Amendment's provision against cruel and unusual punishments precludes sentencing a juvenile (fourteen years old) to life in prison without the possibility of parole. In this case, Justice Kennedy joined the four liberals to make a majority; Justice Kagan authored the opinion. Chief Justice Roberts, and Justices Alito and Thomas each filed dissenting opinions; Justice Scalia joined in all three dissents.

The third decision announced today was in the Arizona immigration law case. Justice Kagan recused herself, since she was in the Solicitor General's office at the time it challenged Arizona's statute which mandated police officers to check the immigration status of persons they stopped, and which made it a misdemeanor for undocumented aliens to fail to register as required by federal law, or to seek or accept work in the State, and also allowed police to arrest any person without a warrant for any offense for which they might be deportable.

The vote was 5-3 (with the Chief Justice joining Justices Kennedy, Breyer, Ginsburg and Soytomayor) to affirm the Ninth Circuit's ruling that all of the latter three provisions of the statute had been pre-empted by the federal statutory scheme. They held that the provision requiring officers to check immigration status upon arrest could possibly be interpreted narrowly in a way so as to survive preemption, but that the way in which it was to be interpreted and applied could not be determined at this preliminary stage. So they reversed the Ninth Circuit's injunction against that part of the statute, and remanded the case for further proceedings (which include more challenges to Arizona's law).

Justice Scalia dissented from the parts of the opinion finding preemption, and said he would vote to uphold the entire law. Justices Thomas agreed with Justice Scalia, but on other grounds. Justice Alito agreed with the other two dissenters, but also agreed with the majority as to making failure to register a state misdemeanor. It is Justice Scalia's dissent, as usual, which states the issue most powerfully:

The United States is an indivisible “Union of sovereign States.”  Hinderlider v.  La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938).  Today’s opinion, ap­proving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.  I dissent.

Justice Scalia goes on to score point after point against the majority's inisipid endorsement of federalism, while allowing Congress to override the sovereign powers which a State brings to its union with the other States. He points out that an 1837 decision (which the majority ignores) allowed New York to screen all passengers arriving on ships, and nothing was said then about the federal government preempting state sovereignty. He also takes a good whack at the government's ridiculous argument in its brief:
The brief for the Government in this case asserted that “the Executive Branch’s ability to  exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.”  Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting  its re­sources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift.... 
Must Arizona’s ability to protect its borders yield to thereality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?   
But he's just getting started. Next on his target list: the Obama administration's latest pronouncement that it will bypass Congress altogether to defer deportation proceedings against any undocumented aliens who came here before they were 16, who have not committed any serious crime, who have either a high school diploma, or are in school, or served in the armed forces, and who are not over age 30:
The husbanding of scarce enforcement resources can hardly be the justification for this ... The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­tion’s proposed revision of the Immigration Act [citation omitted]. Perhaps it is, though Arizona may not think so.  But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind....   
A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.  So the issue is a stark one.  Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? 
Justice Scalia reasonably asks: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?  Today’s judgment surely fails that test.” His concluding two paragraphs are worth quoting in full, because they show that he is a justice who is not just sitting in an ivory tower:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en­forcement, and will be able to  compete openly with Ari­zona citizens for employment. 
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.  I dissent.
Perhaps no case this term has served to point up the differences between the Court's liberal and conservative justices as this one from Arizona -- and to show as well the all-too-decisive role which that divide generates for Justice Kennedy. With Justice Kagan having recused herself, that left only eight justices to rule on the case. Had Chief Justice Roberts not joined the four who were prepared to rule against the Arizona statute  (which Justice Kennedy had already decided to do, since the Chief Justice assigned him to write the majority opinion), the result would have been a 4-4 decision, and the Ninth Circuit's egregious ruling would have been affirmed in its entirety. By joining to make a majority, therefore, Chief Justice Roberts at least managed to preserve Arizona law enforcement's right to check undocumented aliens' status whenever they make a stop. (But even that right, as the Justice Kennedy spells out, must be narrowly construed in order to avoid federal preemption. Some days, you just have to take what you can get.)

[UPDATE 06/25/2012: Those words -- "Some days, you just have to take what you can get" -- were scarcely added to this post when an "unofficial announcement" (meaning no official will go on the record yet) came to the effect that the Obama administration is suspending all cooperation with Arizona law enforcement in regard to illegal immigration. Not only that, but they say that any increased level of inquiries from Arizona will not be dealt with, because they have their "own priorities"! (Those obviously do not include the safety of Arizona citizens.)

This is lawlessness, sheer lawlessness, declared in a fit of pique by President Obama. (He must be behind this; administration officials would not dare to make up such a policy without his approval.) He shows by this, almost more than by anything else he has done to date, his unfitness to serve this country as its president. 

The problem is that impeachment channels are blocked, due to the Democratic majority in the Senate. And a lawsuit to enforce the Constitutional guarantee against invasion and domestic violence (Art. IV, Sec. 4) would not only be a long shot, but it would take too long, as well. Nevertheless, the House should immediately bring articles of impeachment against the President, Attorney General Holder, and Secretary Napolitano, if only to publicize their petty irresponsibility and scofflaw attitude, and hopefully make it impossible for Obama to be reelected.

This does not bode well for the Supreme Court's announcement of its Obamacare decision next Thursday, either. Like it or not—we may soon all be caught up in turbulent forces that will take our country into uncharted territory.] 

In its orders published today, the court granted certiorari in ten new cases. You may read more about these chosen cases at SCOTUSblog, also linked at the right.

The Court also denied review in the Mount Soledad cross case. However, Justice Alito filed an opinion concurring in the denial, and explained that the case was still in a preliminary stage (the Court of Appeals had remanded the case to the district court to fashion a remedy which might allow the cross to remain on its site). Thus, the Supreme Court could still take up the case after there is a final judgment with regard to whether the Memorial Cross can remain on government land, without violating the Establishment Clause. Said Justice Alito:
This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity, see Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S. __, __ (2011) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 17), and the constitutionality of the Mount Soledad Veterans Memorial is a question of substantial importance.... 
Nevertheless, as we saw in the two church property cases last week, the Court just does not seem interested in fixing up the mess it has made of the Establishment Clause. Meanwhile, it finds plenty of time to consider the correctness of the EPA's stance on channeling storm water runoff from Forest Service roads in national forests (sigh). When, O Lord, when?

After it was done announcing its orders and decisions today, the Chief Justice stated that the Court would reconvene on Thursday to release the remainder of the decisions for this term. In other words, expect a decision on the Obamacare cases this next Thursday, shortly after ten o'clock a.m.

Friday, June 22, 2012

Bread and Circuses: the Presiding Bishop's Proposed Budget for ECUSA

Working with her staff, Episcopal Church (USA) Presiding Bishop Katharine Jefforts Schori has, just two weeks before the start of the 2012 General Convention in Indianapolis, published a surprise draft budget for the Church’s next triennium. (“Surprise” in the sense that no one in the rest of the Church saw it coming.) She proposes the draft as an alternative to the mess that came out of the Executive Council’s deliberations which finished in January, whose substantial shortcomings I covered in this earlier article.

The Executive Council’s proposal went, by canon, to the General Convention’s Joint Standing Committee on Program, Budget & Finance. It has the canonical responsibility to propose a final budget to the Convention, which must adopt one for the next three years. However, PB&F cannot alter the Executive Council’s draft until it begins meeting the day before General Convention opens. Thus it is unclear what it can do with the Presiding Bishop’s proposal, as well, before its initial meeting in Indianapolis.

The budget proposed by the EC was the product of a year-long, tortuous process which attempted to include input from all sectors of the Church. In the process, the staff at 815 Second Avenue—including the Treasurer, Kurt Barnes, and the Chief Operating Officer, Bishop Stacy Sauls, were largely bypassed until the last minute. This left no time for staff to ensure that the budget conformed to their projections—or even that it was balanced. (As published at the close of the EC meeting in January, the budget had a $1,250,000 gap between income and expenses, which resulted in a mostly imaginary projected surplus of $1,567,722.)

Recriminations for the fiasco were passed back and forth among the EC members and 815’s staff. Just three weeks ago, the latter produced an annotated edition for the benefit of PB&F which attempted to correct, or at least explain, some of the more glaring errors. However, it appears that the Presiding Bishop (whether at the urging of her staff or not) by then had already determined to take matters into her own hands, and mold a draft budget more to her liking.

The result is a budget calculated to appeal to the leftist ideology (think: social justice and world betterment) and twisted theology of both those at 815 and who will form the great majority at Indianapolis. Instead of the old divisions between categories of “Canonical, Corporate and Program”, the PB’s budget is split into categories of “Mission, Governance and Administration.” By moving some of the items previously classed as “Canonical” and calling them “Program” (in the former terms), she changes the name of the enlarged Program category to “Mission”, and then claims that her budget devotes the lion’s share of the Church’s budget to mission. Along the way, she has reorganized the grouping of the sub-items under headings that match the “Five Marks of Mission” (as originally developed by the Anglican Consultative Council).

But in doing so, she strains the categories quite a bit. For example, she groups the budget for all of ECUSA's Communications Office and services -- from maintaining websites and running the Episcopal News Service, down to the translators employed at General Convention -- under the First Mark of Mission: "Proclaim the Good News of the Kingdom" (in the process shortening it to just "Proclaim the Good News"). It seems doubtful that one could justify every activity of the Communications Office as spreading the Gospel -- but then, the budget would not look as devoted to "Mission", would it?

So is this a more “Anglican” budget, intended to endear ECUSA to the rest of the Anglican Communion?

Yes and no. For one thing, although the Executive Council had proposed a reduction in the Church’s support for the Anglican Communion Office from the past triennium’s $1,160,000 to $850,000, the PB now proposes to give the ACO just $500,000. At the same time, she proposes to use the savings in what would have been given to the ACO to enlarge the budget of the Church’s own Anglican Communion office by some $500,000 over what the EC had proposed for it (see lines 192-97). This will be touted as “a greater commitment” to the Anglican Communion, but it is all in moneys to be spent by the PB in adding new staff and in entertaining visiting primates and other Communion dignitaries.

Then again, the PB proposes to raise $1.5 million in new funds for the relief of Haiti, by getting “faithful Episcopalians” to donate to match, on a 2 for 1 basis, the $774,000 already budgeted for such relief (lines 18 and 83). This will certainly please the clergy and laity who have been working there to help Haiti recover from its catastrophic earthquake—but should something be budgeted which apparently has not even yet been committed, or pledged?

Other money “found” since the EC met has resulted from a refinancing of the Church’s outstanding debt at a lower interest rate (line 329), but achieved by pledging the Church’s donated stocks and bonds as security. This allows the PB to project a payment on principal of $1.5 million per year for the next three years. Indeed, this successful achievement by her Treasurer and his staff may well have  contributed to the impetus for a new draft budget.

However, the PB was not content to book just concrete savings. As noted earlier, she decided to put in phantom pledges in order to redress the budget as “mission-oriented,” and thus in the process to offer bread and circuses to her constituency. As the basis for her newfound dedication to mission, the PB touts “zero-based budgeting”, which allowed her to review all the Church’s mission priorities from scratch, without regard to what it had been spending on them previously. But her approach has produced some genuine anomalies, which are not explained in any of the extensive comments accompanying her proposal. For instance, she has announced that, all of a sudden, the Church under her budget will spend $2 million on new church planting over the next triennium. “That’s wonderful!” I hear the Episcoleft already shouting.

But look again: she cuts the budget of for Congregational and Pastoral Development by more than 25%. So who will get the $2 million to spend on planting new missions and parishes? (Oops: scratch “missions” in that last sentence. She also cuts the Director of Mission’s Office by almost one-half.) Perhaps the idea is to hand it back to certain Dioceses, in exchange for their more generous commitments?

(That is total speculation, of course—but the PB’s budget invites it, because it allocates so many millions of dollars for show-window causes, without specifying how and by whom—other than by the PB herself—the money will be spent.)

While making some specifically painful cuts (see below), the PB’s budget also is “balanced” only by more flimflammery: she achieves a supposed “surplus” for the triennium of $124,777 (after allowing for the $4.5 million in debt repayment) only by plugging in an across-the-board cut (5%) of $632,582 in Governance expenses (line 315), and a further $546,586 in unallocated reductions in the budget for the Church’s Finance department (line 333). The former cut is to be made in consultation with the EC; the latter by management alone. Thus in reality, the budget—which already removes 18.5 paid staff positions—is still out of balance by over one million dollars. (Subtract lines 315 and 333 from line 369.)

This is why it appears that the PB’s proposal is calculated more to look good and to appeal to the Episcoleft, rather than to be pragmatic and address realities. It promotes only the gain, while hiding most of the pain.

For the detail-minded, there is more, still more, along the same lines:

The PB and her Treasurer have been creative in finding more income than the EC was told it had to work with. After consulting with several wealthy dioceses, she has raised projected diocesan commitments by nearly $3 million over what EC had projected—but again, these are not yet written pledges, only assurances. That, plus the $1.5 million in anticipated Haiti donations, boosts the show budget by nearly $4.5 million.

Then she produces more discretionary funds to spread around by cutting items voted on by Executive Council: she has cut out nearly $800,000 in other grants approved (but not individually allocated) by EC, which included $423,000 to Domestic Missionary Partnership, and sums for ministries to the disabled, the deaf, and the Appalachians (line 165 - which misstates by over $600,000 the amount of the EC's draft budget for the lines referenced, and so makes the cut appear to be "only" $150,000).

Some commenters I have read think that the PB is budgeting for more staff at 815, not less. However, I think that is only an appearance, caused by the insistence of her COO, Bishop Sauls, that the budget reflect a 2% annual cost-of-living increase for all personnel, plus an 8% annual increase in their health-care premiums. If you look at line 381, you will see that this produces an increase of some $500,000 over the numbers that EC had in its budget, and the increases for those purposes are noted consistently throughout the document. If there are going to be staff increases (and there may well be), they are hidden for the time being in the blanket allocations for popular causes, which show no detail whatsoever.

I could go on, but what would be the point? The PB has tossed a shiny new golden snitch into ECUSA’s crazy game of budget Quidditch. It is calculated to appeal at the same time that it distracts. The resulting shenanigans at GC 2012 may be of interest to Harry Potter fans, but they will in the end form only another chapter in the Decline and Fall of the Episcopal Church (USA)™.

Panem et circuses, as Gibbon would say.

Wednesday, June 20, 2012

Not As We Say, But As We Do

Every modern President, it must be observed, starts his term with a pledge of "openness and transparency." (One wonders why there is this constant need to set one's administration apart -- in this one respect -- from those that preceded it: "Unlike the previous administration, I pledge that we will be  the most transparent and open government ever.")

Bill Clinton did it; George W. Bush did it; and Barack Obama claimed he would top them all:

Every single one of those promises you can hear in that video -- with the exception of the last one, about health care -- was a lie:

"... the toughest ethics laws ever..." Yes, certainly: think Solyndra, think the Pigford scandal, and any of a dozen other graft schemes I could mention, all brought to you courtesy of the Obama administration.

"... the first administration in history where all of you can find out who visits the White House."  He broke that promise less than six months after taking office.

"... so long as I am President, I won't stop fighting to cut waste and abuse in Washington..." This promise became a lie with the bailouts of GM, Goldman Sachs, and so many others (like Solyndra, again), and has gone on to produce the largest cumulative deficits under any President ever: indeed, by the end of Obama's first four years, he will have accumulated a greater deficit than all the 43 presidents who preceded him, put together:

-- and that's if he manages to stick to his projections, which he has not done to date. (The portion of the deficits shown as the steepest spike are the fiscal years 2009-2012; the leveling off projected after the spike are the projections for FY 2013-2017. So notice, please, the assumed huge drop in government spending from FY 2012 to FY 2013. That may well happen, but only if Obama is not reelected.)

Today we learn of yet another proof of Obama's lies: he has all of a sudden decided that the documents subpoenaed by Congress on the "Fast and Furious" gun-running operation are to be shielded by "executive privilege." And that move comes just one day after President Obama's campaign filed a complaint against Karl Rove's Super PAC in an attempt to force it to disclose its donors -- all the while that the Obama campaign's Super PAC refuses to disclose its own donors. Transparency, anyone?

Every candidate for president makes promises he knows he will not be able to keep. But in the case of Barack Obama, we have a president who is campaigning for reelection while openly breaking all the promises he made four years earlier. It is not exactly the best recipe for gaining credibility with the voters, but then again, it is not as though those who will vote to reelect Obama will even take note of such things.

Monday, June 18, 2012

Supreme Court Denies Review of Church Property Cases

[UPDATE: Acting with the speed of light, Anglican Unscripted already has my commentary on this morning's denials of review here, as part of a special episode released today. Kudos to Kevin and George for the quick work.]

The list of orders from their June 14 conference is now online, and it shows that less than four of the Supreme Court's Justices were interested in reviewing the two petitions from parishes who lost their properties in the courts below. It takes a vote of at least four Justices to grant review, and the two cases (the Timberridge case from Georgia, No. 11-1101, and the Bishop Seabury case from Connecticut, No. 11-1139) are shown as having review denied. (The latter case appears on p. 6 of the orders list, because it also required a ruling on a pending motion to allow the amicus brief by St. James Newport Beach, et al., to be filed.)

The Court granted review in only one case today, a result which surprised the professional observers at SCOTUSblog, who pointed out that the Court has granted review in only 19 cases thus far -- not enough to fill its argument slots in October to December of this year. (The case in which review was granted was one of the thousands of in forma pauperis petitions which the Court receives every year.) The Court also issued a number of opinions in pending cases today, which showed that (as to these cases toward the end of the current term) it is very divided, although not always on ideological lines. (In one case, Justice Scalia joined the "liberal" justices Kagan, Ginsburg and Sotomayor in dissent.)

The result today for church property law is regrettable, because it means that the morass of State court decisions interpreting Jones v. Wolf, 443 U.S. 595 (1979) will remain unresolved, with some States allowing certain churches to bypass their legal requirements for the creation of a trust, and with other States requiring that all churches comply with their local trust laws. Thus the outcome of any church-parish dispute over property will continue to turn upon the State in which it arises: if the parish is in California, Connecticut, Georgia, Massachusetts, New Jersey, New York or Ohio, it will most likely lose its property; but if it is in Alaska, Arkansas, Louisiana, Missouri, New Hampshire or South Carolina, it will most likely keep its property. And if it is in Kentucky or Pennsylvania or Virginia, then the courts could hold that any national trust canon is ineffective to create a trust, but still find that a trust existed anyway.

Fortunately, the denial of review will have little or no bearing on the three pending property lawsuits involving entire dioceses which left the Church (Quincy, Fort Worth and San Joaquin). That is because the Church's Dennis Canon has no application to real or personal property owned by dioceses. Furthermore, the fact that the Supreme Court declines to review a lower court's decision is not a judgment on the merits -- it does not mean that the Court views that case as having been correctly decided. Its net effect, therefore, will be to leave the various States' results exactly as they are.

The interesting fact is that we have never before had a Supreme Court on which there were no members of Protestant denominations. The current Court is made up of six Roman Catholics (Chief Justice Roberts and Justices Kennedy, Scalia, Thomas, Alito and Sotomayor) and three Jews (Ginsburg, Breyer and Kagan). Whether that is what determined that there were not enough justices interested in the property disputes of Protestant churches is something we shall probably never know. Also, none of the justices who served on the Court in 1979, when they issued the Jones decision, is still on the bench today, so any institutional history that attended that case has been lost.

The interpretation of Jones in the courts will remain unsettled, alas, at least until we have a different Court (and even then, there are no guarantees). Writing before the results of last Thursday's conference were announced, this blogging law professor, I think, got the question just about right:
... The problem arises from the Court's muddled resolution of the role civil courts may play in determining disputes concerning ownership of church property. In Watson v. Jones, 80 US (13 Wall.) 679 (1871), the Court ruled that civil courts must first determine the type of church involved -- basically congregational (under control of the immediate congregation) or hierarchical (individual churches controlled by an umbrella church). With respect to the latter type, civil courts were to defer to the internal rules of the umbrella church. A bit over a century later, the Court, in Jones v. Wolf, 443 US 595 (1979), ruled that civil courts must eschew any inquiry into "ecclesiastical polity or doctrine," but must be "completely secular" and rely "exclusively on objective, well-established concepts of trust and property law." But Jones did not overrule Watson, and the result is that five state supreme courts and one federal circuit hold that internal church rules are irrelevant if they conflict with secular trust and property law, but four state supreme courts hold that internal church rules govern even if they do not comport with secular trust or property law.  
This problem arises in the case of hierarchical churches, such as the Episcopal Church and the Presbyterian Church. The problem doesn't arise in the case of the Roman Catholic Church because deeds to parish property are almost universally in the name of the relevant Catholic Bishop. That's not so with Episcopalians and Presbyterians, where deeds to local church property are often in the name of the local church. Enter the so-called "Dennis Canon," in the case of the Episcopal Church. The umbrella Episcopal Church amended its constitution (the Canons) to provide that all local church property is held in trust for the national church. Of course, it is an axiomatic principle of trust law that an express trust can be created only by the settlor, not by unilateral action of the beneficiary. Yet, the Dennis Canon purports to create a trust by the action of the beneficiary alone. This gambit has been approved by those state courts that read Jones to mean that civil courts may defer to internal church rules, even when they are at odds with secular principles of trust law. On the other side are those courts that hold that secular principles of trust law control when internal church rules violate those principles.

Given the turmoil in the Episcopal Church there is certain to be even more of these disputes. Guidance is needed. I'm not agnostic on this issue -- I think that secular principles of trust and property law ought to control, regardless of what the internal church rules may be. There are at least two reasons for this: 1) Civil courts are obliged to apply secular law to resolve ecclesiastical property disputes; they can't do this if they look to church rules that the church itself proclaims; 2) Permitting churches to declare themselves to be the beneficiaries, in trust, of property owned by others, allows churches to exercise power that no secular entity could ever exercise. In short, by a modest extension of the rationale of Larkin v. Grendel's Den, 459 US 116 (1982), governmental blessing of this extraordinary power amounts to a forbidden establishment of religion.
The conclusion he reaches is undoubtedly correct, but the Supreme Court apparently is not yet ready to go there. Churches and their parishes will continue to suffer from the inability of the courts to deal with religious entities -- but isn't that just what St. Paul warned us about, so long ago?

Monday, June 11, 2012

Supreme Court to Consider Church Property Petitions This Thursday

One of the most comprehensive blogs to cover the United States Supreme Court is SCOTUS blog, written by former clerks to the Supreme Court justices who are now practicing attorneys. They pride themselves on their ability to cull through the weekly avalanches of petitions for review, and to select out those very few which, in their expert opinion, are likely candidates for acceptance.

Their post covering the "Petitions to Watch" for the upcoming Supreme Court conference this next Thursday, June 14, is now up. It discusses thirteen of the petitions pending on the Court's calendar and noted as having been circulated for consideration at the June 14 conference.

It is not possible to get an exact number of all the petitions which the Court will take up next Thursday, but if the list of petitions acted upon at the May 31 conference is any indication (and announced Monday, June 4), then there will be approximately 150 for it to consider. More than half of those will be in forma pauperis petitions, i.e., petitions (often hand-written) submitted by prisoners and others who have no money either to pay an attorney to represent them, or to pay the fees to file a petition with the Court. But at least 50 or so will be petitions with counsel on both sides, formally printed and bound in the manner the Court's rules require.

Of the petitions presented at the May 31 conference, the orders list discloses that review was granted in only one of the petitions presented (a formal petition; none of the in forma pauperis petitions was granted), and one other petition received a summary ruling, granting review and sending the case back to the lower court for consideration in light of another recent Supreme Court opinion.

By the same token, the Court published this morning its list of orders with regard to the cases it considered at its June 7 conference last week. One again, only two petitions for review were granted out of the more than three dozen considered, and none of the hundreds of in forma pauperis petitions was granted. However, it should be noted that the SCOTUS blog had listed both of those petitions in its list of petitions to watch for the June 7 conference.

I recommend that you use the links at this page of the SCOTUS blog to download and review all of the briefs in the two church property cases (scroll down to Nos. 11-1101 (Timberridge) and 11-1139 (Bishop Seabury). They make for some fascinating reading -- especially the amicus briefs, which add points not covered in the main briefs.

The Episcopal Church (USA)'s responding brief in the Bishop Seabury case [caution: large .pdf download] is an especially noteworthy one, partly for its arrogance in cataloging all of the minor decisions in its favor by inferior courts which have absolutely no weight as precedents, as well as for its egregious misrepresentation of the cases which have gone against it. If I have time, I will have more to say on the briefs before Thursday.

Thursday, June 7, 2012

On Faith -- and the Dark Side

Something is going on all around us, and we need a name for it if we are to be able to deal with it.

Sorry for the paranoid-like opening, but this is serious -- deadly serious.

People are lost to the faith all the time, I know -- it is nothing new. So it's not just that the people I am talking about are either losing their faith, or are turned off by professions of faith, or whatever.

It is that one can see their minds going, going, going... until they are gone. Gone, to the dark side.

To the side where "reality" is nothing objective any more, where "reality" is simply whatever they choose subjectively to make of it.

Here -- let me try to give an example. This is a description of the world he inhabits by a young man who also happens, more than once, to have been inside a church. He begins forthrightly enough:
Can I be honest? 
I find the church exhausting. At times infuriating. 
I’ve spent the last decade working for a few different local congregations—from conservative Baptist to non-denominational to mainline Protestant—and to be honest, regardless of their theological/ideological/political nuances, they have all generally caused within me the same feeling: endless frustration. 
Now don’t get me wrong, I love the Church. I believe it to be the single most potent and powerful possibility for the transformation of the world (and by “transformation of the world” I mean the actual restoration of the various ills and suffering and ecological devastation we experience and cause one another and the creatures around us…not the whole “getting people to think and vote just like me” agenda it’s been turned into). It’s why I continue to participate in it, why I continue to identify myself as “one of them.” 
But there are times—more often than not—that it drives me absolutely crazy.
So far, so good. The writer has not expressed any frustration which all of us have not experienced from time to time. And his vision of "restoration of the various ills and suffering and ecological devastation we experience" is appropriately fired-up with youthful enthusiasm for going about the business of change.

But change to what? "Restoration," after all, is a Rousseau-inspired myth. There is no going back to a "better" time. But let us listen on. In the passage that follows I have bolded some of the language -- not for emphasis, but to flag it as the first of many clues:
I’m in my early 30’s. I was born at the tail end of Generation X. I grew up with corporate downsizing and political scandals, and am therefore generally skeptical of people in positions of power. I was a latchkey kid, so being independent is pretty much second nature (although, inwardly, all I want is to connect with others). I spent a good chunk of my childhood in a single parent household, so the whole ‘nuclear family’ thing is actually bit of a foreign experience/concept for me. I have seen technology advance exponentially throughout my lifetime and was young enough when the trend began to have been able to ride that wave fairly comfortably and competently.
All right, the stage is now set. We have introduced the protagonist of the struggle, and have highlighted the clues for what will follow, and will almost surely stupefy and sadden you. Prepare yourself:
I exist in a world of diversity and globalization, of extreme expression and sharing (a la social networking). I engage a society and culture that connects virtually, that speaks more with sounds and images and “Likes” than it does words, and where the words themselves are becoming symbols and codes for other words through an almost tribal form of emotive texting. I am comfortable with (and actually excited by) the mashing up of ideas and concepts and sources into a cacophony of stories and thoughts and experiences (notice my almost obscene use of hyphens?) in which there isn’t any one right answer or message save for the one that YOU take away from the whole thing. I am deeply postmodern. This is the world I live in. This is my experience of existence.
This time, instead of bolding, allow me to extract from that passage the parts of it that evidence the phenomenon I am trying to describe:
I exist in a world ... of social networking. I engage a society and culture that connects virtually, that speaks more with sounds and images and “Likes” ... through an almost tribal form of emotive texting. I am ... excited by the mashing up of ideas and concepts and sources into a cacophony ... in which there isn’t any one right answer ... save for the one that YOU take away from the whole thing. ... This is the world I live in. This is my ... existence.
Now can you begin to see what I am talking about?

This is a young man who grew up with no experience of family, and who expresses a burning desire to be connected with others. But to him who grew up in this world of atheistic, arrogant technology, that connection can be achieved only remotely, by means of that technology, through "networking" over the Internet. (There are over 900 million people on Facebook. That is 15 percent of the global population. But people are feeling lonelier, and more isolated, than ever. That is the "Internet paradox.")

And so what kind of reality turns him off?

Precisely. The reality which he encounters in a church:
... This is the world I live in. This is my experience of existence.  
Except at church.  
At church I step back into a veritable time warp…and I’m not talking about a “This is so old/ancient it’s cool!” sort of scene, but more of a “Why does this place smell like my grandma’s living room? Seriously, it smells JUST LIKE her house” sort of vibe.  
I am officially at a loss for words when it comes to the insistence of so many churches to try and preserve within their walls a snapshot of a certain cultural point in time…while at the same time bemoaning the fact that there aren’t any young people around, and secretly dreading whether or not their congregation will even exist 50 years from now (which I have found many mainline Protestant churches to be doing).... 
His principal beef with churches is that they "try [to] preserve within their walls a snapshot of a certain cultural point in time ...". Yes, young man, that is precisely what churches try to do, what churches are obligated to do. It is called "keeping the faith once for all entrusted to the saints."

That faith, by definition, does not vary with time. It is true that the manner in which it can be expressed may vary with cultures and languages over time, but the faith "once for all entrusted" does not change -- it is eternal, and hence unchanging.

Your problem, my son, is that you have never been given the equipment to hear it, let alone to appreciate it for what it is. For all of your technological savvy and skills are bent to a single purpose -- to making your own virtual reality out of the "cacophony of ideas and concepts and sources" with which you surround yourself, of your own free will.

You rely on no higher judgment than your own in this impossible task. And so, not surprisingly, what you are able to take away contains no clue, no grasp whatsoever, of anything that could be such as to never change -- to be eternal. And why are you unable to do so? Indeed, you yourself supply the answer:
Because there are a couple things young people simply won’t tolerate. They will not put up with what they deem to be a lack of community and/or authenticity, and they will not abide anything that appears to simply be going through the motions or the semblance of just being part of some spiritual/religious club. They aren’t interested in towing [sic] the party line that has no bearing on their social and cultural experiences. And–most terrifying to previous generations–they aren’t threatened by threats of “It has to be this way or nothing at all.” 
Because this is a generation of self-starters and micro-entrepreneurship. They have no problem whatsoever starting up their own things. And they have been. And they are. And they will continue to do so. 
"Starting up their own things." In other words, rejecting the things which their elders try to hand down to them. And thus we have the problem -- the problem for which I am trying to find words. In its essence, it is this: how can we hand down to such a young person the faith that has been handed down through the centuries to us? And if we cannot, what will happen to that faith? Listen to our young man a bit more:
And they’re not coming back to darken the doors of the places that insisted it had to be done THIS way and THAT way or it couldn’t be done at all. Churches have been reduced to elementary school playgrounds with the endless bickering and threats made by this faction or that one taking their proverbial ball and going home. And those playgrounds are getting noticeably more empty.
Some of this, of course, rings true. It is true that some churches break down arguing over things of no consequence. And I am sorry if your own experience included -- or includes -- such a church.

I daresay, however, that most of the breakdowns which you could witness today are not over inconsequential matters. They are over the fundamentals -- such as the authority and interpretation of Scripture.

But that is just the kind of dispute which you could not recognize as such, young man. For to you, who decides what your own reality is, all such disputes appear trivial, because for you, nothing in particular is consequential. All is ephemeral -- here today, perhaps gone (or different, at least) tomorrow. Best not to place much reliance upon it, and certainly not worth arguing over. Live and let live, isn't that the idea?

There is more where the quotes came from -- indeed, I have excerpted from what is only the first of a promised two parts. But I have read enough to know already that we have probably lost you, young man -- lost you to the dark side, where they let you make up your own reality to your heart's content. And there are plenty of "churches" who will welcome you into their folds, while claiming to give you all the room you need. Indeed, they see their sole remaining role in society as providing you with all the reinforcement you require to remain as isolated and alienated from "the old stuff" as you wish.

It is too bad that no one who knows and rejoices in "the faith once for all entrusted" will be able to reach out to you, young man. Indeed, I am at a loss to envision how that could happen.

Unless -- unless -- well, perhaps it is worth a try, should this post ever make its way into your hands.

Should that happen, young man, please remain open to a possibly new experience of something that is very, very old. For I am going to take you far back in time -- to an age when the churches were musty, and smelled of wax and incense, and mould and dung and who knows what else. I hope that the words I am about to quote will do the feat all by themselves.

For they are old words, from the middle of the sixteenth century. Some of them may look strange to you, because the spelling differed back then, but that very spelling is part of the experience I want to try to share with you.

Picture yourself as a medieval knight, in England, in 1550. Normally you would be in armor, but for this occasion -- the wedding ceremony in the manor church of your lord and master, as he marries another lord's daughter -- you have doffed it, and are instead in full formal livery. You are right up there in front as the priest begins to intone the words of the ceremony ... [close your eyes for a moment, and use your twenty-first century technical skills to put yourself into the picture] ...  

Ready? Begin:

DEERELY beloved frendes, we are gathered together here in the syght of God, and in the face of his congregacion, to joyne together this man and this woman in holy matrimonie, which is an honorable estate instituted of God in paradise, in the time of mannes innocencie, signifying unto us the misticall union that is betwixte Christe and his Churche: whiche holy estate, Christe adorned and beutified with his presence, and first miracle that he wrought in Cana of Galile, and is commended of Sainct Paule to be honourable emong all men; and therefore is not to bee enterprised, nor taken in hande unadvisedlye, lightelye, or wantonly, to satisfie mens carnal lustes and appetites, like brute beastes that have no understanding: but reverentely, discretely, advisedly, soberly, and in the feare of God. Duely consideryng the causes for the whiche matrimonie was ordeined. One cause was the procreaciion of children, to be brought up in the feare and nurture of the Lord, and prayse of God. Secondly it was ordeined for a remedie agaynst sinne, and to avoide fornicacion, that suche persones as bee maried, might live chastlie in matrimonie, and kepe themselves undefiled membres of Christes bodye. Thirdelye for the mutuall societie, helpe, and coumfort, that the one oughte to have of thother, both in prosperitie and adversitie. Into the whiche holy estate these two persones present: come nowe to be joyned. Therefore if any man can shewe any juste cause why they maie not lawfully be joyned so together: Leat him now speake, or els hereafter for ever hold his peace. 
And also speakyng to the persones that shalbe maried, he shall saie. 
REQUIRE and charge you (as you will aunswere at the dreade full daye of judgemente, when the secretes of all hartes shalbee disclosed) that if either of you doe knowe any impedimente, why ye maie not bee lawfully joyned together in matrimonie, that ye confesse it. For be ye wel assured, that so manye as bee coupled together otherwaies then Goddes woord doeth allowe: are not joyned of God, neither is their matrimonie lawful.

Can you even begin to grasp the kind of minds who would receive this speech as perfectly ordinary, understandable, and normal, young man? For in their world, they did not decide their own reality. No, their reality was God-given: it came from outside themselves, they were born into it, and they lived their entire lives inside its sheltering folds.

For them, God made their world, and that was the end of it. They stood in fear and awe of it, even as they exercised man's dominion over it. (And so there were lords, knights, serfs and peasants -- yes, I know. But God knew, as well, and God settles all accounts on the day of judgment. Thus, it is not for you to criticize, or to fret over, or to use as reason to abandon the faith.)

Ponder those words of ceremony, and savor them. They are soundly based in Scripture -- in the "faith once for all entrusted to the saints." As such, they are part of your heritage -- receive it or not.

May they bring you back from the dark side -- that is my fervent prayer.

Wednesday, June 6, 2012

Amazing NASA Hi-Def Video of Venus Transit

This is simply stunning. Be sure to enlarge it to full screen by clicking on the frame icon which will appear at the lower right after you click the "Play" arrow, and then be sure to select the highest (720p) resolution (if your bandwidth is adequate) by clicking on the star-like emblem to the left of the frame icon.

There are more marvelous still photos collected at this link (H/T: Transfigurations).

Saturday, June 2, 2012


(I may be a curmudgeon, but I am an Anglican one, and not even a curmudgeon could resist this beautiful tribute to Her Majesty The Queen, the Protector and Supreme Governor of the Church of England, and to her faithful consort, His Royal Highness The Prince Philip, Duke of Edinburgh. H/T: Peter Ould)

The Falls Church Asks Virginia Supreme Court to Hear Appeal

Virginia must be the only State (of which I am aware) in which there is no automatic right to appeal a judgment in a civil case. Its Courts of Appeal deal exclusively with criminal cases, and that structure leaves only its Supreme Court to deal with civil appeals. The latter court, however, does not have to accept any civil appeal. Instead, the procedure is to file a petition with the Court, which briefly addresses each point of error in the trial court’s decision which the petitioner would like the Supreme Court to agree to hear and resolve. In explaining the points of error, the petitioner must set forth reasons why they are worthy of attention by the State’s highest court.
Yesterday came word that one of Virginia’s largest and oldest churches, The Falls Church, which lost its case to be declared the owner, free and clear, of its long-held real and personal property (worth tens of millions of dollars), had filed a petition for review of that decision with the Virginia Supreme Court. Their petition raises six assignments of error.
The last two points of error deal specifically with the manner in which Judge Bellows of the Fairfax County Circuit Court ignored individual donors’ intent to hold that a Virginia statute (§ 57-10), which no party had cited or argued to him, dictated that the church’s personal property (pledges and gifts) had to follow its real property. Since he had concluded that the Episcopal Diocese and ECUSA itself had a “proprietary and contractual interest” in the latter, sufficient to prevent its use for any but ECUSA’s purposes, he concluded that ECUSA and the Diocese owned the gifts and pledges as well—even though the parishioners making the gifts had specified in writing that no part of their money should go either to the Diocese or to the national Church.
This aspect of Judge Bellows’ ruling in January of this year drew the attention of Virginia’s attorney general, who is charged with the responsibility of overseeing all charitable entities in the State and their management of charitable gifts. He joined The Falls Church in requesting Judge Bellows to reconsider his ruling on that point, but Judge Bellows denied their motions in March. Now the Virginia attorney general has joined The Falls Church in requesting the Supreme Court to hear the case, if only with respect to the last two points of error raised in the Church’s petition.
The first four points of error have to do with the manner in which Judge Bellows gave extraordinary precedence to ECUSA’s and the Diocese’s canons, to the point even that he allowed them to override State law and statutes. To do so, the petition argues, grants ECUSA a privilege extended to no private individual or entity, and to few other nationally organized churches: the right to bypass State law and procedure in creating an enforceable trust interest unilaterally in the property of another, without that other’s express consent to the trust, given in writing.
Such an extraordinary grant of special power, derived only from a reading of the national Church’s and the Diocese’s canons, makes a mockery of applying “neutral principles of law”, as all Virginia courts are required to do in church property disputes:
Since 1832, this Court has held 14 times that denominational trusts—which plaintiffs purport to impose unilaterally via their canons—are invalid. [Footnote omitted.] Thus, to prove ownership of local church property, denominations bear the “burden of proving” a “proprietary interest” by showing “a violation by the [congregation] of either ‘the express language of the deeds or a contractual obligation of the general church.’” Green, 221 Va. at 555, 272 S.E.2d at 185-86 (quoting Norfolk); id. (a “proprietary right” is “a right of one who exercises dominion over a thing or property”). “To this end the language of the deeds and the constitution of the general church should be considered … in the application of neutral principles of law.” Id. (emphasis added). Courts also “look to [Virginia’s] statutes” and—where appropriate—“the dealings between the parties.” Id. No decision of this Court has found a denominational proprietary interest without finding that the denomination’s interest “ha[d] its genesis in the … deed.” Id. at 556, 272 S.E.2d at 186.
The petition goes on to point out how Judge Bellows’ preference given to church canons violates neutral principles of property law:
The trial court failed to apply normal “principles of real property and contract law.” Truro, supra. As to property law, plaintiffs admit that “[n]either the Diocese nor the Episcopal Church is specifically named as a grantee as such in any [deed].” Tr. 31. In fact, four TFC deeds do not refer to anything “Episcopal”; one predates plaintiffs’ existence; and none restricts TFC’s property to use by an “Episcopal” entity or use in conformity with plaintiffs’ canons. Nevertheless, the court read all of TFC’s deeds to condition TFC’s ownership on affiliation with plaintiffs—i.e., as a restrictive covenant or a restraint on alienation. Op. 78.
The trial court’s ruling thus violated this Court’s holdings that even “[a] declaration of the use to which the granted premises are to be applied does not ordinarily import a condition or limitation, but only in cases in which a reverter or forfeiture is expressly provided.” Roadcap v. County School Bd., 194 Va. 201, 206, 72 S.E.2d 250, 253 (1952); accord Scott v. Walker, 274 Va. 209, 213, 645 S.E.2d 278, 283 (2007) (collecting cases). This rule applies with extra force when, as here, “it would have been easy to say” that property may not be used for other purposes.Id. at 218, 645 S.E.2d at 283.
The petition points up the distinct differences between the terms of The Falls Church’s deeds and those of the other churches in the case:
Conveyances to Episcopal churches other than TFC also contain express use restrictions. For example, a deed to Truro Church “forever” conditioned the grant “upon the following purposes, uses, trusts & conditions & none other … for the use of the members & congregation of the Protestant Episcopal Church of the Diocese of Va. worshipping … subject to the Constitution, canons & regulations of the Protestant Episcopal Church of the Diocese of Va.” Op. 65. St. Stephen’s deed too subjected its property “to the laws and canons” of “the Protestant Episcopal Church,” for its members’ “sole use and benefit.” Op. 68. Later deeds signed by the Diocese contain similar restrictions…
Then it shows how Judge Bellows’ ruling simply glides past these differences:
Without even discussing the foregoing precedent, the trial court simply reasoned that most deeds here “refer explicitly to the churches being Episcopal churches or make other reference to their Episcopal character,” and that “those deeds that do not use the word Episcopal were to trustees of ‘a local church that was at the time of the conveyance indisputably an Episcopal church.’” Op. 78 (citation omitted). But TFC’s original land was acquired before plaintiffs existedand nothing in any TFC deed restricts its property to use by Episcopalians. Cf. Green, 221 Va. at 553, 272 S.E.2d at 184 (“grantors conveyed the property to ‘Trustees of the A.M.E. Church of Zion,’” “for the purpose of erecting an A.M.E. Church of Zion (to be known as Lee Chapel), not a church of some other denomination”). [Footnote omitted.]
Next, the petition takes on Judge Bellows’ finding that the plaintiffs (the Episcopal Diocese and the national Church) exercised “dominion” over The Falls Church properties:
Review is further warranted by the trial court’s failure to apply neutral principles in ruling that plaintiffs exercised “dominion” over TFC’s property. This Court equates “actual dominion” with “actual possession.” Quatannens v. Tyrrell,268 Va. 360, 366, 601 S.E.2d 616, 618 (2004). And the trial court earlier found—after a trial—that “TFC’s vestry … for more than 150 years has governed the property in question, raised funds to upgrade the property, repaired the property, financed additions to the property and decided how the property was to be used.” 12/19/08 Op. 15 n.10 (not appealed).
It is undisputed that TFC alone decided who could enter the premises and on what terms. As plaintiffs’ bishop put it: “If a bishop wants to meet with a vestry, [he] would … have to be invited.” Tr. 318. Citing various facts—e.g., that bishops visited TFC for confirmations or to examine the state of the church—the trial court found plaintiffs to have “dominion.” Op. 93-94. But those facts do not add up to “dominion” under Virginia law.
To be sure, dominion also “may be accomplished ‘by residence, cultivation, improvement, or other open, notorious and habitual acts of ownership.’” Tyrrell,268 Va. at 366, 601 S.E.2d at 618. Here, however, TFC alone “chose the architecture” (Tr. 1119, 1452, 2454); incurred the costs of designing improvements (Tr. 1455-56, 2451); did “competitive bidding” and oversaw construction (Tr. 1455, 2454-55); and “work[ed] with the board of county supervisors” on zoning issues (id.). As plaintiffs’ counsel put it, the “day-to-day responsibility” for “management, payment, and so forth related to the property” is handled by “the vestry and the local church.” Tr. 964.
Plaintiffs undertook no obligation to pay for any of this; money flowed the other way. Indeed, TFC not only voluntarily gave plaintiffs $4.3 million from 1950 to 2006 ($8.8 million in real dollars) (Tr. 2525-26); it was also responsible for property upkeep and improvement for “as long as the records … show.” [Footnote omitted.] From 1991 to 2010 alone, TFC spent $6.4 million on maintenance… Plaintiffs contributed $0.
... Nor did plaintiffs pay for casualty insurance or indemnify TFC’s trustees. Rather, the Diocese indemnifies only trustees that it appoints and insures only property “over which the Diocese has control.” PX-COM-0003-028, -029 (Canon 15.7) (emphasis added). Plaintiffs’ own canons thus implicitly admit that they donot control TFC’s property.
In sum, it was TFC that bought, mortgaged, paid for, designed, built, improved, maintained, zoned, leased, managed, insured, and possessed the property. No neutral view of “dominion” supports the ruling below.
Perhaps the strongest section of the brief is the argument that follows what I have just quoted—dealing with how the opinion by Judge Bellows ignores neutral principles of contract law. The brief breaks its argument down under six points, the first of which is the requirement for mutual assent to make a contract:
First, the trial court treated plaintiffs’ unilateral canons as a contract, ignoring the absence of mutual assent or mutual remedy for breach. “[To form] an agreement, the parties must have a distinct intention common to both and without doubt or difference.” Smith v. Farrell, 199 Va. 121, 128, 98 S.E.2d 3, 8 (1957) (citation omitted). Further, the U.S. Supreme Court views mutual assent as critical to neutral principles analysis: “[T]he parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property.They can modify the deeds or the corporate charter to include a right of reversion or trust.” Jones, 443 U.S. at 606 (emphasis added). But rather than negotiate a joint agreement, as required by contract law, plaintiffs responded toJones by passing canons unilaterally asserting a trust in property to which they lack title—ignoring both the mutuality requirement and Virginia’s ban on such trusts. [Footnote omitted.] And despite earlier noting that “a contract requiresmutual assent and the communication of that assent” (8/19/08 Op. 10), the trial court refused to apply that rule here…
The second point (pp. 20-21) is the requirement for mutuality of remedy, i.e., that both sides to a contract must be able to enforce it. That is obviously not the way with Church canons—a parish has no ability to force a Diocese to act pursuant to its canons, and has no remedy when Dioceses breach their canonical obligations. The third point (p. 21) is the lack of considerationfor the “contract” which the court found was unilaterally established by the canons. (“Consideration” is a technical legal term that describes the incentive for each party to enter into a contract, i.e., the benefit they get out of it.) The Church’s Dennis Canon and other property canons provided no benefit to the parishes at all—they simply kept right on operating as they had before, paying for their property’s upkeep and repairs, etc.
The fourth point of contract law has to do with the trial court’s use of evidence of the “course of dealing” between the parties to establish that a contract existed. Such evidence is admissible to show the specific terms of a contract already made, but under Virginia law (as elsewhere) it cannot be used to prove the making of a contract.
I will quote the brief directly on its next point:
Fifth, the trial court recognized that Virginia law “d[oes] not validate denominational trusts” (Op. 29 n.14), and thus that plaintiffs’ trust canons are invalid. Yet it inexplicably held that “these canons could be considered in the context of that portion of the ‘neutral principle[s] of law’ analysis related to ‘course of dealings’ between the parties … and given such weight as the Court deems warranted.” Op. 50. The court even held that, in allegedly failing to object to plaintiffs’ assertions of such a facially invalid trust, TFC’s course of dealing created a contract. Op. 94 (invoking Diocesan correspondence to TFC asserting a “trust” in its property as evidencing TFC’s implicit consent to grant plaintiffs property rights, despite TFC’s challenge to that assertion, see DX-FALLS-0234-00314 to 00316).
The trial court also relied on TFC’s compliance with canons calling for Diocesan consent to encumbrances of consecrated property. But nothing in those canons alerted TFC that compliance would affect ownership. Tr. 1044-48. By analogy, a homeowner may be bound by neighborhood association rules requiring the association’s consent before she can put up a fence. But neither the existence of such rules nor the homeowner’s compliance enables the association to assert ownership of her house…
I find the last analogy particularly apt. It is all too typical of the way that ECUSA’s attorneys argue their position that they use rule-based limitations on conveying church property, which are purely moral and disciplinary in character, to insinuate that the Church thereby obtains alegally recognizable interest in the title to the real property. That is not law; it is voodoo.
The Falls Church’s sixth and last point on neutral principles of property law again relies upon a doctrine that is followed by a wide variety of States:
Sixth, the trial court ignored that even if the canons otherwise created a contract, “association regulations” are “limited by general law” and a “test of reasonableness” that bar “encumbering [members’] property” or effecting a “forfeiture” thereof. Unit Owners’ Ass’n v. Gillman, 223 Va. 752, 767, 763, 765, 292 S.E.2d 378, 385, 383-84 (1982). Rules of a “voluntary association” cannot purport “to transfer the title to [members’] property”; that is a “function[] of sovereign power.” Davis v. Mayo, 82 Va. 97, 103 (Va. 1886). The trial court’s contrary ruling compels review.
All of the preceding argument was on the first assignment of error—that the trial court did not apply strictly “neutral principles of law” to this dispute over the ownership of church property, as Virginia precedent requires. As I pointed out in my previous discussion of Judge Bellows’ opinion, he appeared slavishly to follow prior Virginia precedent—but in doing so, he selectively elevated certain evidence (regarding Church canons and “course of dealing”) into a “winner-take-all” role that makes a mockery of neutrality. If Church canons can trump State law, then there is nothing “neutral” about the principles being applied, because then churches are not subject to the same laws that all the rest of us are.
The second assignment of error (pp. 24-25 of the brief) is tied into the first: it makes the point, as discussed earlier, that granting such precedence to Church rules and canons violates the First Amendment by carving out a special niche of which only certain churches may take advantage. This is the same point being raised by the two petitions currently pending before the United States Supreme Court, as I discussed in this previous post. And it is why The Falls Church’s petition is important to keep its case alive until we can see how SCOTUS will deal with that issue.
The brief’s third assignment of error is again worth quoting directly, because it makes a technical point which, once appreciated, becomes telling:
The trial court also erred in divesting TFC of property by retroactively applying canons and laws not in force when TFC acquired its initial property or when it joined the denomination. Unlike the denomination in Green, plaintiffs cannot point to any deed as the “genesis” of their alleged interest in TFC’s property. 221 Va. at 555-56, 272 S.E.2d at 186. Nor can they point to a specific agreement by TFC to grant them a proprietary interest.
At trial, plaintiffs said their interests “arise when the congregation becomes part of the Diocese.” Tr. 39. But TFC joined in 1836, when plaintiffs admit they had no property rights. As the Diocese lamented in an 1845 petition to the General Assembly, “no Christian denomination is capable of taking and holding property of the smallest amount.”... Plaintiffs also admit that “Virginia law did not give legal recognition to unincorporated associations” until well into the 1900s… In short, as the trial court held in an earlier ruling that was not appealed, “[n]o 19th century Virginia case finds any denomination or diocese—entities that lacked legal standing and the ability to contract—to have had any enforceable interest in property”; “denominations were … without a ‘legal existence.’” 8/19/08 Op. 13 (quotations omitted).
Notwithstanding its earlier ruling, the trial court pointed to TEC’s anti-alienation canons, passed circa 1870, as the principal source of plaintiffs’ alleged rights. Op. 88-89 & n.73, 55 n.36. But those canons cannot possibly have taken effectbefore plaintiffs had legal standing to form contracts or hold property. The court cited no authority holding that an interest that is null on creation can spring into existence years later if the law changes. Cf. McGehee v. Edwards, 268 Va. 15, 19, 597 S.E.2d 99, 102 (2004) (applying “the law in effect at the time the trust is executed”); 90 CJS Trusts §85 (“The law in effect at the time of the creation of the trust governs its validity”). As the Arkansas Supreme Court held in striking down a later-enacted denominational “trust” clause, the law does not “allow a grantor to impose a trust upon property previously conveyed”; “the parties to a conveyance have a right to rely upon the law as it was at th[e] time [of conveyance].” Arkansas Presbytery v. Hudson, 40 S.W.3d 301, 309-10 (Ark. 2001).
The trial court noted that Va. Code §57-15 (reproduced in the Addendum) was amended in 1904, suggesting that the amendment retroactively validated plaintiffs’ anti-alienation canons or alleged proprietary interests. Op. 55 n.36. But “retroactive laws are not favored, and … a statute is always construed to operate prospectively unless a contrary legislative intent is manifest.” Berner v. Mills, 265 Va. 408, 413, 579 S.E.2d 159, 161 (2003). Nothing in §57-15 suggests that it applies retroactively, let alone to deprive vested property rights. Nor could it. Under the Contracts Clause (U.S. Const. art. I, § 10; Va. Const. art. I, § 11), a congregation’s deed is a “binding contract,” and it is “beyond the legislative power” to apply a statute to “deprive[] the cestuis que trusts named therein, and created by the trust, of their property rights,” or to “convey[] the right to dispose of this property to others.” Finley, 87 Va. at 108-09, 12 S.E. at 230. Review is warranted.
The Falls Church’s fourth assignment of error (brief, pp. 28-29) makes a point I had not seen argued before. It contends that Judge Bellows used Church canons dealing with consecratedproperty as the basis for finding that the Church had a “proprietary and contractual interest” in all of the parish’s properties—unconsecrated as well as consecrated. The Falls Church, for example, owns a shopping mall, worth many millions of dollars. It obviously has never been consecrated to any religious purpose. Yet Judge Bellows awarded its ownership to the Diocese based on his reading of the Church’s canons forbidding the encumbrance or alienation of consecrated property without the consent of the Diocese’s ecclesiastical authority.
As you can see from my extracts, the brief again and again quotes earlier decisions of Judge Bellows in the case to contradict his latest ruling. Inconsistency in applying the law to the facts is not a virtue in judges. What happened? The only way I have to explain it is that somewhere between the first and second trials, Judge Bellows lost his enthusiasm for addressing all of the unusual and abstruse elements raised by the cases. Having had his finest work effort reversed by the Virginia Supreme Court with little acknowledgment for all of the effort he had put into the case up to that point, Judge Bellows appears to this attorney, at any rate, to have retreated into a workmanlike shell, under which he perfunctorily applied previous decisions of the Virginia courts to these complex facts, in order to come up with a “one size fits all” ruling that produced a uniform result as to all seven parishes, regardless of their individual facts and histories. And now, as the brief of The Falls Church so ably points out, his uniform approach is achieved only at the cost of inconsistency with his own earlier rulings, before the first appeal—but he simply cannot be bothered to sort the case out any further. He denied all requests to reconsider his ruling, and so left it to the higher courts to put things right.
The arguments raised in The Falls Church brief are all fine arguments, and when joined with those of the Attorney General, should get the notice of the Virginia Supreme Court. The Diocese and ECUSA will file briefs with arguments as to why Judge Bellows was correct, and telling the Court that it accordingly need not bother with granting review. Then The Falls Church may file a reply to those briefs, and all of the briefs will go to the Justices for their consideration and decision on the petition. We probably will not know that decision until early fall—particularly if, as on the earlier appeal, certain justices recuse themselves from involvement because of their own religious affiliations.
The press release linked earlier offers a final rationale for pursuing this appeal, by making an analogy to St. Paul’s own appeal to the Emperor:
When considering this decision, parishioners recalled St. Paul’s determination to appeal his false arrest in Jerusalem and trial at Caesarea to the Emperor in Rome. He judged that to use the legal system of his time was appropriate and in no way compromised his faith. Paul’s purpose was simply to be a faithful steward of all that the Lord had entrusted to him, above all the Gospel of Jesus Christ and the power of the Holy Spirit to transform lives. The purpose of the Falls Church Anglican is the same, following its motto—“that Christ be King in our lives and in the lives of others”—and its prayer that “all of the resources that God has entrusted to our care over the years would be used only and always for this purpose.”
To which one can say: Amen.