Texas Supreme Court Sets Oct. 16 Date for Fort Worth Appeal

In an order published earlier today, the Supreme Court of Texas has, following its announcements of decisions in a number of pending cases, granted Bishop Iker's request for expedited oral argument and set the case for hearing on the same day as the San Angelo case (the appeal by Church of the Good Shepherd from the decision in favor of the Diocese of Northwest Texas) -- October 16, 2012, at 9 a.m.

Each side will have twenty minutes for oral argument.

In another recent development in the case, the Liberty Institute, a Texas non-profit, public interest law firm "dedicated to the preservation of America's religious liberty," has submitted an amicus brief in the case which presents a unique argument. The brief (a .pdf download from this page) suggests that because the two sides do not agree on whether or not the Episcopal Church is "hierarchical" above the level of the individual dioceses, the civil courts are incapable of resolving that question without engaging in inquiry into religious polity, governance and doctrine to a degree which would infringe upon the freedom of religion under the First Amendment. It argues that the Supreme Court should order the cases dismissed, for want of a justiciable question.

Were the Supreme Court to follow this advice, of course, it would leave the parties in the status quo ante, when the rump diocese of Fort Worth and the Episcopal Church (USA) filed their lawsuits against Bishop Iker and the other Trustees of the Corporation of the Episcopal Diocese of Fort Worth. And that would mean that there would be no means, through the Texas civil courts, that the former would be able to get their hands on any of the property or other assets of the Corporation.

So from the point of view of Bishop Iker's diocese, that would not be a bad result. However, in making their argument to dismiss, I believe the Liberty Institute has mistaken the nature of the issue that is really at stake in the case.

For the dispute is not about whether the Episcopal Church (USA) is truly hierarchical with respect to its member dioceses. That is indeed what it claims in all of its papers in all of the dozens and dozens of lawsuits it has filed across the country, but it is doing so only as a legal strategy. It has adopted that line of argument  in order to avoid the application of "neutral principles of law", as endorsed by the United States Supreme Court in Jones v. Wolf, to its allegation that all parish and diocesan property throughout the whole Church is held in a legally enforceable trust for the denomination.

That the Episcopal Church (USA) can make such an outlandish claim sound plausible is one more tragedy resulting from the disastrous term of Justice Harry Blackmun on the Supreme Court bench. Not content to have been the author of the wholly fictitious legal reasoning behind Roe v. Wade (1973), Justice Blackmun stepped out of his judicial robes again to suggest, in his majority opinion in Jones v. Wolf, that national churches could impose trusts on all of their members' property by simply adopting a provision to that effect in their constitution.

A Justice of the Supreme Court is not supposed to render legal advice to parties as to how they might order their affairs in light of the Court's decision in a given case. But Justice Blackmun all too frequently saw himself as the litigants' friendly Uncle Harry, who while handing down a ruling against one and in favor of another, could still seem avuncular and helpful, by suggesting (in Jones) "It's not all that bad -- see here how we can deal with this", or by waxing on and on at length (in Flood v. Kuhn) about the glories of America's baseball history. One wishes a judge just to be a judge when he is speaking officially, and Justice Blackmun routinely ignored that rule -- to the lasting detriment of individual churches and vestries throughout America.

The Episcopal Church's Walter Dennis immediately pounced upon Justice Blackmun's suggestion, and had the Church amend not its Constitution -- for that would have taken four years, with uncertain prospects for success -- but its Canons, which could be done at the last minute, unnoticed and probably without following the rules of General Convention, without anyone paying any attention. And starting twenty years later, we have been litigating the effects of his proposal, the infamous Dennis Canon, ever since.

Flushed with some initial court decisions upholding its Dennis Canon (based on Justice Blackmun's unsolicited advice), ECUSA expanded its trust claims to the property of entire dioceses shortly after Bishop Schofield's Diocese of San Joaquin decided it could no longer remain part of the Episcopal Church (USA) in 2007. It did so, not by claiming that the Canon applied to the assets of its member dioceses (written by a bishop, it clearly did not), but by asserting a long-standing, unwritten policy or implicit agreement among its members that they would not withdraw once they had joined, or that if they did, they would leave all their accumulated property and assets behind for any minority that decided to stay.

Such a claim, however, is founded only upon the supposedly "hierarchical" character of the Church at all levels. And it needs to be asserted only because the national Church never wanted to bother with the manifold complex details of complying with the statutory trust requirements of each and every State. The "easy out" which Justice Blackmun offered it came like manna from heaven, and the Church's leadership has never looked back, despite the disastrous consequences for is character, finances, and reputation.

Following "neutral principles of law" in church property disputes simply means treating church litigants no differently from any other civil litigants. It means requiring churches, regardless of their extent or polity, to comply with the civil laws of the State in which they are headquartered, or located, to the same degree as any other person in that State. If they want to place parish property into a trust for their benefit, then have the parish vestry approve and sign a declaration of trust, just like everyone else, and like every other legally enforceable trust that was created in that State.

But don't come into court with all kinds of mumbo-jumbo about "religious polity", unwritten agreements, and the like. Look simply at how the title is held in the various deeds, and what the parish and diocesan governing documents say. And whenever such principles are correctly applied, ECUSA loses, as it should, because it never took the trouble to comply with the requirements to establish a formal trust in someone else's property.

So the argument made by the Liberty Institute is flawed, because it takes ECUSA's claim of "hierarchy" at face value, and ultimately confuses the nature of such an entity with its ability to comply with secular, civil law. Even though ECUSA would lose by application of the Institute's principles in this case, those principles would leave many individual parishes, for instance, without any means of establishing title to their assets if they were claimed by someone else to be "in trust". All civil courts would have to decline to hear any such lawsuits whatsoever.

Courts can apply neutral principles of law to church property cases without entangling themselves in religious doctrines or polity. It is only when this notion of "a hierarchical church" is allowed to get a foot in the door that the application of neutral principles becomes skewed, and the analysis becomes confused. It is far better for the civil courts simply to stick with what they know, and do every day of the year -- and to leave the metaphysical contentions and religious consequences to the clerics and theologians.

Signs and Portents

With all the campaign brouhaha crowding out the news, it is very difficult to get a fix on the bigger picture. Make no mistake, however -- the bigger picture exists, even if we have trouble seeing it. Because man is fallen, and is therefore constantly engaged in looking at things that distract and detain him, it takes a special character to be able to lift one's perspective above and beyond the daily muck.

I do not pretend to have that character -- though I believe I can learn, through the eyes of those far greater than I, something of the intimations and portents which motivated them to warn of storm clouds gathering. One such individual with whom I have become much more familiar in recent days, through the writings he left us, is the marvelous English sage and journalist (for he was both at the same time), Gilbert Keith Chesterton (1874-1936).

As you can see from his dates, Chesterton did not live to see the beginning of the Second World War. But that is not to say that he did not foresee its advent.

Speaking in Toronto in 1930, ten years before Germany would invade Poland, Chesterton took as his topic "Culture and the Coming Peril." The "peril" of which he warned his audience was essentially the onset of industrialism and mass production, which required the creation (through advertising and propaganda) of mass markets, and whose creation he foresaw in turn would have the consequence of destroying individuality and local character. (Indeed, just eighteen years after Chesterton spoke, we would have George Orwell's 1984, which spelled out the same consequences in vivid detail.)

In delivering this warning, he made some side-notes which were uncannily prophetic. Thus he did not fear Bolshevism, he explained, because Russia had already demonstrated Bolshevism, and "the best way to destroy a Utopia is to establish it." Nor did he fear another world war, as such (because of his faith in mankind's ability to "pull through"), although he could not see a path, given the developments after the Treaty of Versailles, to prevent its coming. "[A second world war] would happen," he told his audience, "when Germany tried to monkey about with the frontiers of Poland."

In 1934, after Hitler had come to power, Chesterton wrote, in a collection of his weekly pieces published as Avowals and Denials (p. 37):

The common or garden German may be described as the beer-garden German. As such, I love and embrace him... [But] ever since Herr Hitler began to turn the beer-garden into a bear-garden, there has been an increasing impression on sensitive and intelligent minds that something very dangerous has occurred. A particular sort of civilization has turned back towards barbarism.

In another piece in the same collection, Chesterton admirably dissected the movement called National Socialism (pp. 126-27):

The old fanatics who followed Gustavus Adolphus and William of Orange were not ethnologists or evolutionists. They did not imagine that they belonged to a Nordic race; they most certainly did not imagine that they or theirs had ever been bothered with a swastika. 

... They were thinking about their own strictly religious scruples and schisms. They were really fighting fiercely and savagely for points of [religious] doctrine; and I should be the last to blame them for it. But these doctrines did not last; they were the very doctrines that have now long been dissolving in the acids of German skepticism; in the laboratories of the Prussian professors. And the more they evaporated and left a void, the more the void was filled up with new and boiling elements; with tribalism, with militarism, with imperialism and (in short) with that very narrow type of patriotism that we call Prussianism. 

Most of us would agree that this kind of patriotism is a considerable peril to every other kind of patriotism. That is the whole evil of the ethnological type of loyalty. Settled States can respect themselves, and also respect each other; because they can claim the right to defend their own frontiers and yet not deny their duty to recognise other people's frontiers. But the racial spirit is a restless spirit; it does not go by frontiers but by the wandering of the blood....  

You can have a League of Nations; but you could hardly have a League of Tribes. When the Tribe is on the march it is apt to forget leagues -- not to mention frontiers. But my immediate interest in this flood of tribalism is that it has since poured into the empty hollows left by the slow drying up of the great Deluge of the Thirty Years' War, and that all this new and naked nationalism has come to many modern men as a substitute for their dead religion.

One sees at work here a vision that draws back to take a very long perspective on the ebb and flow of human history. At the same time, it is joined to an unshakable belief in the essentials of human nature, which include a bent toward religion -- or, toward what so frequently amounts to a fanatic kind of religion under another name, i.e., racism and nationalism. Man does not change, but his beliefs and idols do. If one wants to see clearly the clashes that are coming, one has to take a long view behind the forces which are mobilizing in support of the doctrines and creeds now facing off in the arena.

Suppose we were to engage in such a Chestertonian exercise today, with a view towards appraising the developments whose consequences we soon must face. We are given certain facta thus far -- which, to be sure,  distinguish the present rather distinctly from that of 1934:

 1. In 1934, the powers that dominated the scene were in Europe (Germany) and Asia (Japan) -- the United States was not yet recovered from the Great Depression. In 2012, neither Germany nor Japan any longer plays a weighty role on the world stage, and the United States bears the brunt of envisioned responsibility for the course of world events.

2. In 1934, Islam was a minor religion on the world stage. But in 2012, it is a major opponent both to (1) the West, with its civilization rooted in Christianity, and (2) Christianity wherever it is found. The worldwide growth of jihad is one of the most significant factors occurring between 1934 and today. (At the same time, it is an analytical mistake to regard Islam as a monolithic sect, as we shall have reason to see.)

3. Another distinguishing factor between 1934 and today is the tendency towards what James Burnham described in his book The Suicide of the West: there is in western countries today a near-universal disinclination to counter or oppose any versions of the oft-expressed hatred for the West's professed ideals. By identifying or sympathizing with others' hatred of what it represents, the West becomes uniquely self-hating, and thereby renders itself incapable of leading or inspiring others.

4. The self-loathing of the West has still further consequences. Its very ideals, on which our country (for instance) was founded, are transformed into cynicism: projected differences in class and race are taken as grounds for viewing the United States as fatally flawed from the outset. (Thus does the Christian doctrine of "original sin" unwittingly color the manifold critiques of our country's origins.)

5. In 1934, the division between Sunni and Shia was of small consequence, because of the insignificance of the Middle East at the time. Today, oil gives the countries of the Middle East central  prominence, and the divisions within Islam become highly determinative of future events.

6. Finally, Israel did not yet exist in 1934. But today its existence, together with the world's increasing levels of anti-Semitism, furnish continual occasions for violence and terrorism within and around its beleaguered borders.

Israel has fought as many wars in the sixty-odd years of its existence as has the United States in over two centuries. (I do not count the Civil War, as it was wholly internal.) And note that both are democracies, which did not begin any of those wars.  History teaches that it is not democracies, but dictatorships, oligarchies and monarchies, which go to war against other countries.

The aftermath of the so-called "Arab Spring" has increased the odds of war tremendously. The countries which were secular dictatorships before are now, or will soon become, Islamic dictatorships. Dictators, be they mullahs or tribal chiefs, use wars as a means of controlling dissent at home.

A clash between the jihadists and Israel is inevitable. However, the chances of keeping the clash confined to just the Middle East are vanishing rapidly. The reason is simple: Iran is determined to have nuclear-tipped missiles, and if it gets them, it will use them in any war that starts, from whatever immediate cause. The break-up of Syria raises more concerns than ever for its cache of chemical weapons, and a war would probably lead to their use, as well.

Against this background, the apathy of the Obama administration is creating a force vacuum, into which opposing forces will be inevitably drawn. It would take a highly unusual provocation for Israel to launch a strike against Iran's nuclear facilities before the November election. Given the Middle East, such a provocation could always occur, but Israel's prime minister will not want to have "attempting to influence the election" added to the other reasons for anti-Israel sentiment in America. More likely, he will wait to see whom America elects, and then plot his course accordingly.

Iran will not back down, and Israel will not flinch from doing what it has to do before its very survival is put at issue. If a war starts between those two countries, the Sunni-Shiite divisions in the Middle East will become critical. The Sunni house of Saud could well see such a war as an opportunity to bring down the threat of Shiite Iran once and for all. At the same time, countries with Sunni rulers (or significant numbers of Sunnis) and large segments of Shia population, like Iraq, Bahrain, Pakistan and Lebanon, could be torn apart.

The economic consequences of war (just think what will happen to the price of oil) will be incalculable. The Middle East will be a very long time in recovering, oil-based economies without alternative sources of supply will crash, and gold and other commodities will be king.

Meanwhile, America is not completely idle. A second carrier strike force is on its way to the Persian Gulf, after Iran promised it would never allow it to return. China will watch closely any American involvement in another major conflict, so that it can take advantage of any pressure it can bring to bear upon Taiwan while America is engaged elsewhere. Russia will take advantage of any such opportunity, as well, to reassert its traditional hegemony over former Soviet republics.

In short, prospects for peace are gloomy. Although war could break out in any number of trouble spots (think India and Pakistan, or North Korea and South Korea), it will almost certainly play out on a major stage in the Middle East. And once it begins, it will have a nuclear escalation that will involve all of the major powers.

Even Gilbert Keith Chesterton might have come to doubt his ultimate faith in the human race this time around -- the forces ranged against each other are ever so much more lethal than before, while being just as intensely (and religiously) determined to prevail.

Nothing will be gained by crying "Wolf!" until the signs and portents become unmistakable. Nevertheless, if we are not to be taken by surprise, we must retain G.K.'s ability to stay focused on the big picture.

The Dog in the Manger (IV): Bishop Seabury Church, Groton

In praesepi faeni pleno decumbebat Canis. Venit Bos ut comedat faenum, cum Canis, confestim sese erigens, tota voce elatravit. Cui Bos: “Dii te, cum ista tua invidia, perdant (inquit): nec enim faeno ipse vesceris, nec me vesci sines.”

[In a manger full of hay a dog was lying. There entered an ox to eat the hay, when the dog at once rose up and barked as loudly as he could. Said the ox to the dog: "May the gods destroy you and that envy of yours, for you yourself do not eat the hay, and you do not let me eat it."]

THE MORAL. Envy pretends to no other Happiness than what it derives from the Misery of other People. It will rather eat nothing itself than forego starving those that could have nourishment.

* * * * *

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

The latest victim of a Church property lawsuit "resolved" by an illogical and incoherent judgment, naturally in favor of ECUSA and its supporters, is Bishop Seabury Church, in Groton, Connecticut:

(Picture Credit: Deborah Straszheim. Click to enlarge.)

The Church was built after the parish acquired the property (by gift and by purchase) in 1966. The parish had originally been founded as a mission in 1875, and was named after Connecticut's first Episcopal bishop, Samuel Seabury, who was born in Groton in 1729. In 1956, the Diocese of Connecticut in 1956 admitted Bishop Seabury Church into full union. Its current Senior Associate Rector, the Ven. Ronald Gauss, has been with the parish for over 37 years.

Fr. Gauss was one of the original "Connecticut Six," whose story I have told on this page. After the group lost their suit in federal court to preserve their rights of worship, the Bishop of Connecticut and his Diocese filed suit against the rector and vestry of Bishop Seabury Church in 2008 to establish their ownership of the  property under the supposed terms of the trust unilaterally imposed by the malodorous Dennis Canon. The trial court ruled against the parish in 2010, the Connecticut Supreme Court upheld the trial court's decision in September 2011, and the United States Supreme Court declined to review that decision earlier this year.

The opinion by the Supreme Court of Connecticut is a travesty of justice -- it nonsensically reads the United States Supreme Court's majority decision in Jones v. Wolf as granting the Episcopal Church (USA) the unique power to bypass the trust laws and requirements in all fifty States, by the enactment of a mere national canon which purported at one stroke to place all Episcopal parish properties throughout the Church in trust for the denomination. Recently, your Curmudgeon's criticism of the decision was seconded by the Supreme Court of Indiana, in a decision that refused to recognize any unilaterally created denominational trust under Indiana law:

Some state courts have apparently read Jones as an affirmative rule requiring the imposition of a trust whenever the denominational church organization enshrines such language in its constitution. See, e.g., Episcopal Church in the Diocese of Conn. v. Gauss, 28 A.3d 302, 325 (Conn. 2011) .... We do not understand Jones as creating such a rule. First, such a rule would result in de facto compulsory deference by enforcing the claim of the denominational church organization merely because the trust claim is added to the denominational church organization's constitution and regardless of any contrary evidence or state law.... Second, the Court approved the neutral-principles approach as an acceptable means of applying state property and trust law.... Thus, the Court's expression that "the constitution of the general church can be made to recite an express trust in favor of the denominational church" organization, was one example of a means by which parties may be able to express their intent, "provided it is embodied in some legally cognizable form" under state law.... As explained below, under Indiana trust law, whether under an express or implied trust theory, the intent of the owner (settlor) to create a trust must be demonstrated.... Thus, under Indiana law, a claim of trust by the purported beneficiary (e.g., insertion of a trust clause into a denominational church organization's constitution), without indicia of intent on the part of the owner (settlor), is insufficient to impose a trust. 

A proper reading of Jones v. Wolf, however, was denied to the rectors, vestry and members of Bishop Seabury Church, and so they conducted their last Sunday services in their building on August 12. A parish of some 750 members, with an average Sunday attendance of between 250-300, has now been forced out of its own property to meet for the time being at a local motel on Sundays, and at another site on Wednesdays.

Meanwhile, true to form, the Diocese of Connecticut joins all of the other Episcopal dogs in the manger, as documented by this series of posts. It has no current use for the property:

The Bishop of the Connecticut Episcopal Diocese said Tuesday he would meet with area clergy next week to discuss the future of the Bishop Seabury Church in Groton. 

... Connecticut Diocese Bishop Ian T. Douglas said the plan now is to meet with local clergy to discuss how the building might best be used in the future. He said everything is on the table. 

“What I want to do is begin the conversation with those clergy of the region, to pray together and take counsel together, and begin to say, ‘What is it that God would have us do with this resource for God’s mission in Groton?’” he said.

That's a very good question, Bishop Douglas. Perhaps you should have asked it earlier, before you told the parish that if they were to be allowed to stay in their own church, they could not affiliate with ACNA, or allow their senior rector to conduct services.

In other words, Bishop Douglas, you gave them no more of a choice than the dog in the manger gave the oxen who wanted to be allowed to eat their hay. You have no use for the Church yourself, but you made certain that the ones who could use it would not be able to do so, under the conditions you dictated to them.

Aesop had you and your lot pegged 200 years ago.

What Are ECUSA's Choices in South Carolina?

In this third post of a series (see here and here for the earlier ones) examining all parties' options with regard to the Diocese of South Carolina, I will evaluate the options from the point of view of ECUSA -- or rather, the point of view of the Presiding Bishop and her Chancellor, because they, and they alone, will determine what ECUSA decides to do. (And that fact pretty much sums up all you need to know about ECUSA these days.)

The choices available to them will depend on whether (a) the Diocese of South Carolina votes to leave the Church or not; (b) whether Bishop Lawrence tenders his resignation or not; and/or (c) whether some  combination of those events occurs.

If the Diocese decides to hold a vote on whether or not to pull out of the Church, it will also need to tell those voting where the Diocese would go, if the choice is to leave. The obvious choice is ACNA, but that move would take some coordination with Archbishop Duncan, because of the sheer size of the Diocese and the episcopal slot to be filled by Bishop Lawrence. (Recall that the rector of what was formerly Bishop Lawrence's largest parish has just been elected to serve as Bishop of ACNA's Diocese of the Carolinas, whose territory overlaps with that of the Diocese of South Carolina.)

The Diocese could consider joining up with another Anglican province, but Bishop Lawrence is known to be disturbed already by the multiple and overlapping ecclesiastical jurisdictions in the area of his Diocese, and such a move would just exacerbate that situation, for no good reason.

If the Diocese does decide to leave ECUSA, therefore, it will face some complicated choices, and will need to conduct substantial negotiations. But from the Presiding Bishop's point of view, such a decision will make things very simple, and her path will be clear.

Following a now well-tested strategy, she will (1) try to have the Diocese's bank and investment accounts immediately frozen; (2) declare the see of South Carolina vacant, because of Bishop Lawrence's voluntary "abandonment" of communion with ECUSA; (3) "derecognize" the diocesan Standing Committee and arrange to have a new one appointed from among members of the Episcopal Forum of South Carolina and other dissident clergy; (4) call a "Special Convention" to elect a "provisional bishop" of the Diocese; and (5) see that the convention passes a resolution authorizing the bishop so designated to file a lawsuit in a South Carolina court to recover all of the real and personal property of the Diocese.

The lawsuit may have little chances of ultimate success, given the South Carolina Supreme Court's decision in the All Saints Waccamaw case, but that would be of no consequence to the Presiding Bishop and her Chancellor. The point would be to make the choice to withdraw as expensive as possible for Bishop Lawrence and his diocese. And if the ongoing litigation in San Joaquin and Fort Worth is any guide, there will be individual lawsuits brought against individual parishes, as well, in an effort to multiply the costs.

The ensuing legal tangle will drain millions of dollars from both ECUSA and the Diocese of South Carolina and its parishes, and matters of property and ownership will remain tied up in the State courts for five to ten years. But again, that will be point -- from 815's perspective (because it has the larger purse on which to draw).

So much is very predictable, given ECUSA's track record to date. What is not so easy to predict is what ECUSA could do if the Diocese of South Carolina does not vote to withdraw from the Church.

As discussed in my two earlier posts in this series, such a choice would block the filing of any lawsuits by ECUSA, because the Diocese would not have gone anywhere. (That being said, the dissidents could still try to sue along the lines of Calvary Church's lawsuit against then-Bishop Duncan, but once again, the courts of South Carolina will not make it as easy as did the Pennsylvania courts for any such lawsuit to succeed.)

Instead of suing in the civil courts, the Presiding Bishop and her Chancellor would be tempted to try to vacate the see of South Carolina by bringing disciplinary proceedings against Bishop Lawrence. However, that path is fraught with constitutional and canonical entanglements, because the Diocese of South Carolina has refused to recognize the validity of the very canons under which ECUSA would purport to act.

The most that the Presiding Bishop and her Chancellor could hope to accomplish by "deposing" Bishop Lawrence under canons whose validity he does not recognize is to create the same kind of chaos which would ensue if the Diocese voted to leave the Church -- but with one very big difference: the Diocese would not have left.

Even if the Presiding Bishop were able to get a purported "majority" of the House of Bishops to vote to remove Bishop Lawrence, therefore, the diocesan Standing Committee would still function as the Ecclesiastical Authority of the Diocese. It would not have voted to leave, so Bishop Jefferts Schori would have no grounds upon which to "derecognize" its members.  And as the Ecclesiastical Authority, it would remain in complete control of the calling of any convention of the Diocese, as well as in full charge of all diocesan bank accounts and assets.

So what would the Presiding Bishop gain by the artificial deposition of Bishop Lawrence? Answer: exactly nothing, other than his no longer attending meetings of the House of Bishops (which he does not particularly relish attending in any event). The validity of the deposition would not be recognized in many other dioceses of ECUSA, nor in many provinces of the Anglican Communion, and Bishop Lawrence could continue to officiate as a bishop -- on the grounds that his Diocese does not recognize the validity of his deposition, or of the canons deployed to try to remove him.

The Presiding Bishop, in short, will have served mainly to widen the chasms that already engulf her Church. At the same time, her impotence against the Diocese will prove only the point that she least wishes to make: that dioceses are where the power in the Church resides, and that neither she alone -- nor the House of Bishops together -- can force any diocese to do a single blessed thing.

I know that people will ask about how the Diocese could elect another bishop of its choosing, so I will add a few words on that topic. The first point to make is that unless Bishop Lawrence wants to step down, he would not have to. The civil courts would never entertain a lawsuit to remove him (see the Serbian Eastern Orthodox and Kedroff cases), and 815 would be powerless to bring local disciplinary proceedings within the Diocese itself. So Bishop Lawrence could stay right on doing what he has been doing. The Diocese could consider bringing in a retired bishop to assist with further ordinations, if future clergy wished to eliminate any questions of validity in their own careers.

If Bishop Lawrence does choose to retire, there is no reason why the Diocese could not proceed to elect a successor of its choosing exactly as it did before. If the majority of ECUSA's standing committees and diocesans refuse to give their consent, then the Diocese can elect that candidate again, and force the issue (as it did with Bishop Lawrence). If an impasse still results, the Diocese can always invite in a bishop to exercise episcopal offices for as long as necessary, pursuant to Canon III.13.2.

The point is for the Diocese not to shirk from exercising its powers. So long as it remains in ECUSA, those powers are considerable, and render it virtually untouchable by 815. There is no need to rush into a decision which will just trigger a passel of lawsuits.

Church of England's Finest Hour -- But Not ECUSA's

The present reputation of ECUSA among conservatives is, shall we say, less than stellar:

The U.S. based Episcopal Church's recognition of same sex unions last month mostly excited a big yawn. More interesting is the resistance of its mother body, the Church of England, to Prime Minister David Cameron's attempt to install same sex marriage in Britain. The latter's opposition is more significant because it remains its nation's established church and still wields political and constitutional powers. 

Episcopalians have often behaved as the established church in America. It once was the church of America's elites. But now below 2 million members and spiraling, the Episcopal Church no longer excites more than knowing smiles. Its affirmation of transgender clergy last month, at its General Convention, fulfilled stereotypes about modern, liberal Episcopalians.

So begins an article ("This Could Be Its Finest Hour") by IRD's Mark Tooley, published at the site of the American Spectator. The presenting issue, as always in recent times, is the destruction of an age-old institution to accommodate the proclivities of a tiny segment (comprising less than 2%) of the population: same-sex marriages, or the Oxymoron That Makes a Moron out of Heterodoxy. Only for the Church of England, there is a bit more at stake:

The Church of England similarly often has a penchant for striving to be trendier than thou. But even as it presides over an increasingly secular Britain, it cherishes its role as senior church in the global, 80 million member Anglican Communion. And its few pockets of spiritual vitality in Britain often tend to be evangelical, often immigrant. Its second senior most prelate, the Archbishop of York, is himself a Ugandan and potentially the next Archbishop of Canterbury. 

It's also true than in a secularizing country, the Church of England (unlike U.S. Episcopalians, who mostly just resent more numerous evangelicals) appreciates the threat to religious liberty under a regime of imposed same sex marriage. How would the established church disallow what the civil law requires? The church may have to disestablish, especially if it desires any continued leadership over global Anglicans.

And so the Church and its leaders, perhaps realizing at last that this was their last bit of ground on which to remain the established Church of England, stepped up to defend the institution of marriage:

British media quoted church officials dismissing government plans as "'half-baked,' ‘very shallow,' ‘superficial' and ‘completely irrational.'" Archbishop of Canterbury Rowan Williams and Archbishop of York John Sentamu only slightly more diplomatically lamented that government proposals "have not been thought through and are not legally sound." 

The church's official response rejected the government's push with vigorous, point-by-point rebuttals. One organizer of that response was Bishop of Leicester Tim Steve, who declared on his own: "Marriage is not the property of the Church any more than it is the property of the Government. It is about a mutually faithful physical relationship between a man and a woman." He warned, despite government claims of protection for churches, "If you do what the Government say they are going to do, you can no longer define marriage in that way. It becomes hollowed out, and about a relationship between two people, to be defined on a case-by-case basis." Imposed same sex marriage would precipitate the "gradual unravelling of the Church of England, which is a very high cost for the stability of society."

For that defense, of course, the leaders received only ridicule from the liberals, who already want only to mold the Church into their own image (meaning an image of man's devising). One notorious cleric (who might have been -- and could still become, if the liberals get their way -- a Bishop) called the defense "institutionally expedient, but morally contemptible." And just whose morals would those be, Dr. Johns? Perhaps it would be well to invoke here the words of another Englishman, written in 1905 (try to guess the author before you finish the excerpt):

The vice of the modern notion of mental progress is that it is always something concerned with the breaking of bonds, the effacing of boundaries, the casting away of dogmas. But if there be such a thing as mental growth, it must mean the growth into more and more definite convictions, into more and more dogmas. The human brain is a machine for coming to conclusions; if it cannot come to conclusions it is rusty. When we hear of a man too clever to believe, we are hearing of something having almost the character of a contradiction in terms. It is like hearing of a nail that was too good to hold down a carpet; or a bolt that was too strong to keep a door shut. 

Man can hardly be defined, after the fashion of Carlyle, as an animal who makes tools; ants and beavers and many other animals make tools, in the sense that they make an apparatus. Man can be defined as an animal that makes dogmas. As he piles doctrine on doctrine and conclusion on conclusion in the formation of some tremendous scheme of philosophy and religion, he is, in the only legitimate sense of which the expression is capable, becoming more and more human. When he drops one doctrine after another in a refined scepticism, when he declines to tie himself to a system, when he says that he has outgrown definitions, when he says that he disbelieves in finality, when, in his own imagination, he sits as God, holding no form of creed but contemplating all, then he is by that very process sinking slowly backwards into the vagueness of the vagrant animals and the unconsciousness of the grass. Trees have no dogmas. Turnips are singularly broad-minded.

Indeed. The "refined scepticism" that leads modern clergy to scrap the institution of marriage for a farthing's worth of inclusivity is touted as "progress," but as G.K. Chesterton admirably pointed out (the excerpt is from Chapter XX of his book Heretics), such progress is in the direction of the animals, and not toward our potential as the only creature made in God's image.

Make no mistake -- the fight to preserve traditional marriage from obliteration by secularized liberals is a fight for our humanity. If the Church of England stakes its establishment in defense of marriage, it is acting like a true church. ECUSA, alas, has long since gone to the turnips.

What Are the Choices for South Carolina? (Part 2)

As I explained in an earlier comment to my introductory article about the choices available to the Diocese of South Carolina, so long as that Diocese remains joined to and a voting member of the Episcopal Church (USA), the Church can make no claim in court to either its property or assets. In these next two articles, I want to explore what both parties -- first, the Diocese, and second, the national Church -- could do if they maintain their existing legal relationship.

For examples of what choices and options are available to the Diocese if it remains a voting member of the association of dioceses which we call ECUSA, we may turn to history. For there was already a time in the past when South Carolina was not fully a participating member of (what was then called) PECUSA (where the "P" stands for "Protestant"). In 1861, following the outbreak of hostilities in the Civil War, the Diocese of South Carolina withdrew from PECUSA and affiliated with seven other southern dioceses in what was formally called the Protestant Episcopal Church in the Confederate States of America (to keep the acronyms from being too confusing, I shall refer to it as the "Southern Church").

From the point of view of PECUSA, none of the Southern dioceses ever actually "withdrew" -- it continued to call their names at each General Convention, and seated them again virtually without incident once the War was over. In other words, it continued to recognize them as constituent, voting members of the Church throughout the Civil War; it was just that their bishops and deputies were "prevented" by that War from attending its gatherings and participating.

That is why, it seems to me, the example of relations between PECUSA and the Diocese of South Carolina during the Civil War can furnish some instruction on what kind of ongoing relationship the Church and the Diocese could have today, so long as the Diocese remains a full voting member of ECUSA. There is no requirement that South Carolina attend General Conventions; it may still exercise its powers by having its Bishop and its Standing Committee give or withhold consent to the confirmation of new bishops, by controlling the amount of money it chooses to donate to the various parts of ECUSA, and by participating or not, as it pleases, in the other organizational activities of the Church.

During the War, the Canons of ECUSA were recognized in the Southern Church only to the extent they were not superseded by canons the Southern Dioceses adopted for themselves. Thus, the obedience of a Diocese to national canons with which it disagrees likewise is not a condition of retaining one's voting membership in ECUSA. The Diocese may choose to follow only those parts of ECUSA's Constitution and Canons which it approves. (Indeed, we know that many Dioceses do so already, as there are those -- like Eastern Oregon -- which refuse to obey the canon requiring that only baptized Christians partake of Holy Communion.)

There is also nothing to preclude Bishop Lawrence from participating in meetings of the House of Bishops only to the extent that he finds them fruitful, and furnishing him with an opportunity to have his grievances heard by his colleagues in meaningful dialogue. Attendance at the House of Bishops is a right, not a duty.

As the diocesan, Bishop Lawrence of course retains full control over the licensing of clergy to minister within the boundaries of the Diocese. And Presiding Bishop Jefferts Schori has already made her canonically mandated visit to the Diocese (shortly after Bishop Lawrence's consecration), so there is no need to arrange any further visits from her during her remaining term of office.

So life in the Diocese of South Carolina, at least from its point of view, could continue pretty much as it has to this date. Indeed, by reducing its participation in the national Church to an absolute minimum, the Diocese would be putting into practice the principle of subsidiarity, in which the national Church could stand to have a refresher lesson or two. Subsidiarity is the idea that the affairs of an organization are dealt with at as local a level as possible, and that only those matters which truly affect the organization as a whole need to receive attention at the topmost level. (It is the principle on which PECUSA itself was founded, and which governed its affairs for the first 150 years of its existence.)

During this period of showing its displeasure with the way the national Church is running itself, the Diocese of South Carolina could also use its continued membership to forge strengthened ties between it and similarly minded dioceses in the Church. For the truth is that if ECUSA is ever to see reform, it will have to take place at the hands of numerous dioceses, and not just one or two acting on their own.

The forging of such alliances should not be regarded as any kind of "disloyalty" to the national organization (although there are certainly those at the top who will choose to view it that way). Rather, it is the exercise of a right that is inherent in the democratic structure of an unincorporated association: the attempt to influence its actions by persuading enough of its members to agree until there is a working majority. Associations are governed by democratic procedures, by and large; ECUSA, even with its more complicated voting procedures in General Convention, is still no exception.

But -- and again, this observation is based on the Civil War experience -- the minimal participation in the affairs of the national Church, and the process of working for changes from within, cannot be a permanent choice. At some point, enough progress has to be made for South Carolina to believe that fuller participation is once more practical, or else the decision must be made that, despite one's best efforts to turn it around, the Church has become spiritually a dead end, so that salvation lies in other company.

I stress that this choice is a corporate one -- to be made by the Diocese of South Carolina as a whole. And in precisely that respect, it is very different from the choices which individuals must make with regard to joining or leaving individual parishes. Those latter choices will continue to be made at the local level, regardless of what corporate choice the Diocese makes as a whole, or when, and there are entirely different considerations at stake. The Episcopal Church (USA) cares little whether or not any given individual remains in one of its parishes; that is why its actions toward parishes can be so bullying. But if five or ten dioceses decide to depart -- now, that will get its attention.

The other question which needs to be addressed, in exploring the option of the Diocese's staying in ECUSA for the time being, is, of course, what steps could ECUSA take in response? As we shall see, those are largely ones under its new Title IV, the validity of which the Diocese of South Carolina does not recognize. Thereby lies the potential for a true constitutional crisis -- the perpetration of which, however, lies wholly in the hands of the national Church's leadership. And it is to that dire possibility that I shall turn in my next article.



  

What Choices Are There for the Diocese of South Carolina?

Bishop Lawrence of the Diocese of South Carolina will soon return from the vacation on which he said he would pray and ponder about the choices facing him and his Diocese. Your Curmudgeon does not want to co-opt any of the deliberations which Bishop Lawrence, his clergy, and the lay members of his Diocese must undergo in the coming weeks. Nevertheless, it seemed fitting that a systematic way of approaching the questions might help to further the necessary dialogue. Consider this post, therefore, as the first in a series of tentative steps taken to explore all the available options. The final choice, of course, rests with the Diocese (speaking through its convention).

And that, it turns out, is a very good place in which to start. Just what is the "Diocese of South Carolina", and what abilities and powers does it have when it speaks through its convention?

Here we must be careful to distinguish the ecclesiastical realities from the legal realities. Dioceses of a Church have dual personalities: they are participants in the Church of which they are a constituent member, and at one and the same time, they are legal entities ("persons") in the eyes of the State(s) in which they exist, and have their boundaries.

The Episcopal Church (USA), as has been discussed many times on this blog, is a rather unique entity in the eyes of the secular law. It formed itself in 1789, as an "unincorporated association." But what do those legal terms actually mean?

The fact that ECUSA is "unincorporated" actually speaks volumes -- in the legal sense, that is. The word "unincorporated" tags ECUSA as not being a corporation. All corporations are creations of a particular State or federal government, and thus ECUSA's "personhood" does not depend upon any particular government in existence in 1789 -- it is rather a creature of what is known as "the common law", which we inherited from our mother country of England.

Corporations come into legal existence when a State (or, in some limited cases, as in the instance of the Diocese of Washington, D.C., the federal government) issues a charter.  The charter is the official license by which the corporation derives its legal existence -- its right to be recognized in the courts of that State (or District) as a person capable of suing, and of being sued.

So the first legal fact of which we must take note is that the Episcopal Church (USA) is not the creation of any particular State, or of the federal government (which did not yet exist when ECUSA was organized). The founders who gathered in New York City in the summer and fall of 1789 did not apply to any of the thirteen colonies for a charter for the Church. They did not do so, for a very good reason: the newly organized Church was not supposed to function as a legal entity in its own right. 

ECUSA was (and is) an unincorporated association, i.e., a group of associated entities (dioceses) without a formal legal charter from any governmental authority. In that respect it was like any group of individuals who came together as a club, or "association", at the time. It is called an "association", because it consists in its entirety of individuals who have freely chosen to associate, under a governing constitution (or "articles of association") and bylaws.

Thus the first, and in many ways the most important, legal point to make is that the Diocese of South Carolina -- which itself was formed under South Carolina law, because it had no reach outside what would become the State of South Carolina -- is just a single member of an unincorporated association, in this case, an association of similar associations called "dioceses," which in 1789 organized themselves into a Church which they called "the Protestant Episcopal Church in the United States of America", or PECUSA (and now today's ECUSA), for short.

When the Diocese of South Carolina helped to form PECUSA, and voted in 1789 for PECUSA's  Constitution, it gave its consent ("acceded") to that Constitution. But consent, or "accession," is by definition not forever and always, unless such a permanent (and hence irrevocable) consent is expressed in unequivocal language. The accession to the Constitution of PECUSA by the Diocese of South Carolina was not stated to be "forever", or "always", or in any such words expressing irrevocability.

For a parallel in our own time, consider the United Nations. The United States of America has acceded to the Charter (Constitution) of the UN -- but that accession (consent) is not permanent. The United States, like any other member nation in the UN, reserves the right to disagree, and to withdraw its accession to the Charter, at any time. (Were the USA to do so, it would of course forfeit its "permanent" position on the UN Security Council. So much for "permanence", or irrevocability.)

Now here is another unusual fact about associations: unless its governing documents give the rest of the members the power to do so, an association cannot expel one of its members from the association. So ECUSA, for instance, has no power to "kick out" the Diocese of South Carolina, because there is nothing in the Constitution or Canons of ECUSA giving such a power to General Convention, or to any other body (or person) within ECUSA. (That is not to say the current leadership might not try to engineer such a stunt, but it would be highly counter-productive, as explained below.)

This, then, is the first major point for the Diocese of South Carolina to realize: the choice of whether or not to remain in ECUSA belongs entirely to it. No bishop, Presiding Bishop, House of Bishops, or General Convention of ECUSA has the power to declare that the Diocese of South Carolina is no longer one of ECUSA's members.

And further -- why would ECUSA ever want to exercise any such "power", if it existed? If ECUSA had the ability to dissolve its relationship with any single diocese, then it could no longer make any claim to that diocese's property. It would, itself, have brought about the circumstances making impossible its claim to any diocesan property, and an ancient maxim of the law is that "no man may profit by his own wrong." ECUSA, in other words, could not by its own actions in purporting to "expel" a diocese create the occasion by which it could thereby lay claim to the Diocese of South Carolina's property.

So ECUSA will never be able to dissolve unilaterally its relations with the Diocese of South Carolina. But the Diocese itself, as we just saw, is entirely free to withdraw its accession to ECUSA's Constitution and Canons at any time. The question which will face the delegates elected to its Convention is just that. Should it follow in the steps of the former Episcopal (now Anglican) Diocese of San Joaquin, and the Diocese of Fort Worth, and the Diocese of Quincy?

Based on the experience of those dioceses, to follow them would be to take a path that leads certainly to litigation, given the needs of the current ECUSA leadership to justify their megalomania, according to which entire dioceses are imagined to dedicate -- irrevocably! -- their property to the national Church upon joining it. Withdrawal (today, unlike the case of 1861) thus leads to a lawsuit, which in South Carolina's case will be led by the all-too-willing minions of dissident groups like the Episcopal Forum, who distinctly yearn to become tools in the hands of 815's megalomaniacs.

Given the decision of the South Carolina Supreme Court in the All Saints Waccamaw case, however, any such lawsuit would be doomed to failure. There is simply no valid claim, under that decision, of an implied trust on all the diocesan assets which the national Church could successfully assert in the South Carolina courts.

Of course, that does not mean that 815 will not wish to sue, or that it will be unable to find stooges ready, willing and able to claim to act on its behalf. But the sole purpose of such a lawsuit would be harassment, given that it will be dead out of the starting chute. (And thus it would be still more an unconscionable waste of the national Church's assets.)

The Episcopal Forum in South Carolina already has attorneys who have told it that the All Saints Waccamaw opinion is confined to its unique facts, even though the Supreme Court's decision on the per se invalidity of a purportedly universal, but wholly unilateral, trust in favor of ECUSA was rendered in language that applied across the board, as a matter of law, and not just confined to the facts of the case.

So be it -- that is what lawyers do: they collect fees to invent arguments, whether successful or not. (That is why most such attorneys insist on being paid in advance.) And that is likewise what their unquestioning clients will in this case be constrained to do: to pay them to argue a losing cause, until their arguments are utterly shot down, as All Saints Waccamaw requires. That is the plain price of a blinded refusal to acknowledge what the State's highest court actually said.

The decisions of the delegates to the Convention of the Diocese of South Carolina, therefore, should not be based upon what ECUSA, or the Episcopal Forum (or their ilk), may threaten will happen. We know what will happen; it is as fated as the Ides of March were fated. The fact remains, however, that such a "fate" is no real deterrent to anything that the convention of the Diocese of South Carolina should eventually choose to do.

The real question facing such a diocesan convention will be where to pledge their allegiance, if not to ECUSA. And by posing that question, I do not mean to exclude an answer that simply declines to separate, in any final way, from ECUSA itself. It is surely a choice that South Carolina may yet decide, under its Bishop, to remain (as he pledged) in ECUSA, but to dissent from its heretical ways, and to maintain a steadfast witness to "the faith once delivered to us by the saints."

In a further installment, therefore, I propose to examine just what the advantages would be for the Diocese of South Carolina if it decided to remain as a true witness in ECUSA, versus its making a decision to withdraw. As always, I invite comments from those who will be most affected by any such decision.

A Short Note to My Readers

This time of year is always family time -- it seems we are a tribe of Leos. At any rate, I have been glorying in the joys of spending time with all my cubs and grandcubs, against which the need for blogging has paled into insignificance.

There is a new decision by the Indiana Supreme Court which needs to be brought to your attention, because it will give hope to all the beleaguered Episcopalians in that State (other than those in the Diocese of Northern Indiana, under the orthodoxy of the Rt. Rev. Edward S. Little) that the Dennis Canon has no self-effectuating power there to rob them of their parish property. I shall expound upon its details and consequences, trust me [no pun, naturally, unintended], in due course.

Another factor contributing to my recent reticence is a rediscovery of the apologetic masterpieces of Gilbert Keith Chesterton -- who, I must acknowledge, would not approve of curmudgeonry for its own sake (that is, using your own debating skills in a contest to vanquish one's adversaries in a flourish of logic and rhetoric).

Chesterton achieved far more by being charitable and respectful to his opponents. He accepted their outlandish and anthropocentric premises at face value, and then proceeded to demolish them by invoking little more than man's innate wit and crowning common sense. Since both of those formidable weapons derive ultimately from God's having created man in His own image, his adversaries (being men themselves) could neither refute, nor credibly deny, what Chesterton wrote -- without, at the same time, negating their own humanity.

His acceptance of his opponents as full equals disarmed them so much, for instance, that neither George Bernard Shaw nor H. G. Wells ever quite realized it when he had severed their respective heads from their respective necks (rhetorically speaking). Instead, they each went right on being the best of comrades with him -- "arguing, but never quarreling" -- with Chesterton, to be sure, enjoying all the best arguments.

In my future posts here, I shall endeavor greatly to follow G.K.'s incomparable precept -- which stems  (as I believe) from his unshakable faith in the eternal wisdom that underlies a child's native innocence. Indeed, my recent wonderful time spent with my grandchildren has reinforced my conviction that Chesterton, though without offspring, had grasped the abiding truth in our Lord's example, and likewise delighted in the gifts that little children so freely offer to us.

Although I can never be as prolific as he was, I have hopes that I may yet, even at this late stage, be of witness to the glorious and faithful Christian example which he did his utmost to sustain and continue.