Virginia Supreme Court Grants Review in Falls Church Case

A writ panel of three Justices of the Virginia Supreme Court, who heard oral arguments on October 16 in favor of the Petition for Appeal filed by The Falls Church Anglican following the adverse judgment by the Fairfax County Circuit Court has issued an order granting review of the case. (H/T: BabyBlueOnline.)

The Court's order grants review of the following six points of error raised by The Falls Church:

1. The trial court erred in enforcing canon law, rather than “principles of real property and contract law” used in all cases ... to award plaintiffs a proprietary interest in TFC’s property and to extinguish TFC’s interest in such property, even though TFC’s own trustees held title and TFC paid for, improved, and maintained the property.

2. The trial court’s award of TFC’s property to plaintiffs violates the Religion Clauses of the U.S. and Virginia Constitutions by enabling denominations to secure others’ property by means available to no other Virginia entity.

3. The trial court erred in finding that plaintiffs had proprietary interests in TFC’s real property acquired before 1904, when the legislature first referenced denominational approval of church property transfers. [Note: in the body of the Petition, this claim of error is restated in this way: "The trial court divested TFC of property by retroactively applying canons and statutes passed after the conveyances at issue, contrary to state law and the Contracts Clause."]

4. The trial court erred in awarding plaintiffs TFC’s unconsecrated real property, which is exempt from plaintiffs’ canons.

5. The trial court erred in awarding TFC’s personal property to plaintiffs—even though plaintiffs never had any control over TFC’s funds or their use, and TFC’s donors, for religious reasons, gave on the express condition that their gifts not be forwarded to plaintiffs—in violation of Va. Code §57-1 and the Religion Clauses of the U.S. and Virginia Constitutions.

6. The trial court erred in awarding plaintiffs more relief than sought, including funds given after TFC disaffiliated and funds spent on maintenance, which plaintiffs stipulated TFC should keep.

In their response to the Petition, the Diocese of Virginia claimed that The Falls Church Anglican had "waived" Assignments of Error #3 and #4 above, for improperly presenting and/or preserving them in the record for appeal. The Supreme Court obviously disagreed with that contention, because there is no language in its order restricting the points of error which The Falls Church Anglican may raise on appeal.

Additionally, both the Diocese of Virginia and the Episcopal Church (USA) sought to have the Court review the one aspect of Judge Bellows' ruling with which they disagreed: they contended that he erroneously concluded that Virginia Code Section 57-7.1 does not operate so as to give validity to denominational trusts.

That statute, enacted to replace a former one dealing with the same subject, provides in part: "“Every conveyance or transfer of real or personal property … to or for the benefit of any church, church diocese, religious congregation or religious society … shall be valid.” The Diocese and ECUSA wanted the court to read this statute so as to give effect to the Dennis Canon and other trusts which they claimed applied to the all of the parish's real and personal property, but Judge Bellows ruled that the legislature had not intended to change pre-existing Virginia law against general denominational trusts when it adopted the new statute.

By its order, the writ panel expressly refused to consider the Diocese's and ECUSA's cross-assignments of this claimed error, so Judge Bellows' ruling on that specific point will stand. And as I explained in this earlier post, that means that the Dennis Canon has no effect in Virginia. Instead, according to Judge Bellows, Virginia courts will look to other indicia of "proprietary interests in" (i.e., actual ownership and control over) parish property.

The result, as we saw in Judge Bellows' ruling, can still come out the same as if the Dennis Canon had applied. At least now, however, the degree to which Judge Bellows went, in holding that factors such as restraints on alienation, episcopal visits and even the furnishing of Sunday service bulletins were decisive, will receive a fresh review by the full Supreme Court.

Where an appeal is completely discretionary with the court of review, as this civil appeal is in Virginia, the fact that it has granted review may generally be taken that the higher court does not agree with everything in the lower court's decision.

In this case, the sharpest point of disagreement may well be with the one aspect of Judge Bellows' ruling in which the Virginia Attorney General joined in requesting review: the order that The Falls Church hand over to the Diocese all of the pledge money it had collected from and after February of 2008, regardless of the intent expressed by the Church's donors that none of their gifts should go to the entity that was suing them for their property. No matter what the Virginia Supreme Court eventually decides, this news cannot be welcome either to the Diocese or to ECUSA and their attorneys.

What Is It about "Conflicts of Interest" that the Kangaroo Court Cannot Understand?

The term "kangaroo court" is a mid-nineteenth century Americanism that may have hit its stride during the days of the Gold Rush, when rough and ready justice was meted out on the spot in the mining camps and unorganized territories of California. But its meaning has always been well-established, even if its etymology is not clear: it refers to a rigged proceeding to deliver "justice" to some poor victim or unlucky offender who has aroused the popular ire of the moment. The judge is in on the script, the jury is stacked, and the victim generally does not know what hit him until later, because the trial proceeds so fast.

In such an atmosphere, the words "conflict of interest" have no meaning or consequences. The jury foreman may be the judge's brother, and the prosecuting attorney the judge's son. All they care about is railroading the defendant(s) as quickly and thoroughly as they can -- and they have all the power in the situation.

The current attempt to bring canonical charges against the bishops (and, to date, one presbyter) who exercised their First Amendment rights to offer testimony or legal argument to the courts in Illinois and Texas is a case in point. In the Fort Worth case before the Texas Supreme Court, seven bishops and three presbyters within the Episcopal Church (USA) filed a "friend-of-the-court" (amicus) brief, which took the position that ECUSA is not a three-tier hierarchy (1 - "national church"; 2 - diocese; 3 - parish), but has a hierarchical relationship only between the bishop diocesan and the resident clergy of any given diocese.

They contended in their brief to the Texas Supreme Court that because of this characterization of ECUSA, then then the Court should, if it agreed to maintain the century-old "deference standard," defer to the defendant Episcopal Diocese of Fort Worth and its bishop, the Rt. Rev. Jack W. Iker, as the highest "ecclesiastical authority" in the jurisdiction in dispute.

This simple (and entirely true) contention was attacked by five other ECUSA bishops in Texas (+Lillibridge,  +Doyle, +Ohl, +Vono and +Gulick -- the latter as the Provisional Bishop of the faux diocese of Fort Worth) in an amicus brief they filed with the members of the faux diocese's "Standing Committee" last February (pdf download at this link). And it is the latter "Standing Committee" who are the complainants (along with one other person) who filed the Title IV charges against the Fort Worth Seven.

Did you follow that? The complainants (plaintiffs) against the Fort Worth Seven are the very same ones who filed their own brief with the Supreme Court of Texas, together with four other Episcopalian bishops. Their brief happened to disagree with that of the Fort Worth Seven, but so what? Is it now against the canons of the Episcopal Church (USA) for some bishops to disagree with others?

Apparently so; indeed, tragically so (for the Church). Matters have come to the point where the bishops on the Disciplinary Board want to punish certain orthodox bishops -- not for expressing their views to the Texas Supreme Court (because Bishops Lillibridge et al. did that as well, and they are not being held subject to discipline) -- but for what they said to that Court. In other words, the bishops' First Amendment rights of free speech do not exist in the Church, if this kangaroo prosecution proceeds.

And proceed it will, according to an astonishing letter from the Rt. Rev. F. Clayton Mathews, who is the Intake Officer for the Disciplinary Board for Bishops, appointed by the Presiding Bishop. Dated October 2, 2012, it contains this paragraph (I have added the bold for emphasis):

The complaints were filed by the Standing Committee of the Diocese of Fort Worth and Mr. Paul Ambos, a member in good standing of Christ Church, Brunswick, New Jersey and a Deputy to the 77th General Convention from the Diocese of New Jersey. They allege you violated Canons IV.3.1, and Canons IV.4. Sec. 1(c), (e), (g), (f), (h)(6), (h)(8), and possibly IV.4. Sec.1(h)(2) [sic]. My task as the Intake Officer is to determine whether the information, if true, would constitute an Offense; and if the complaints are so determined, to forward them to the Reference Panel, Canon IV.6. Sec.7. After reviewing the complaints and participating in the "closed" sessions of the House of Bishops meetings during the 77th General Convention held this past July in Indianapolis, I, as the Intake Officer, have determined that the alleged canonical violations contained within these complaints, if true, would constitute an Offense, and am forwarding these complaints to the Reference Panel.

Bishop Mattews, incredibly, sees no problem in serving as the Intake Officer for these particular charges after he participated in closed-door discussions at the House of Bishops last summer between the accused and their episcopal accusers. He specifically references those discussions as one of the sources of information that played a part in his decision that the charges would, "if true," constitute an Offense under the Canons!

Will no one tell Bishop Mathews that he ought to have recused himself from dealing with these charges because of that very participation? Look at what his own Canons say (IV.19.14 [b]; my bold emphasis):

(b) Any member of any Panel provided for in this Title shall disqualify himself or herself in any proceeding in which the member's impartiality may reasonably be questioned. The member shall also disqualify himself or herself when the member . . . (4) has personal knowledge of disputed evidentiary facts concerning the proceeding . . . .

Bishop Mathews has convicted himself out of his own mouth, and in writing to boot. This entire proceeding is invalid from the outset, since he made the crucial first determination to forward the charges to the Reference Panel.

And just who sits on the "Reference Panel"? Why, it's Bishop Mathews again, wearing his "Reference Panel" hat! Also sitting with him are Bishop Dorsey Henderson (retired) of the Diocese of Upper South Carolina, and -- you guessed it -- the Presiding Bishop of ECUSA. Are either of them disqualified?

I cannot speak for Bishop Henderson, since I do not know if he was in attendance at the House of Bishops meetings in Indianapolis. But I can certainly say that Presiding Bishop Jefferts Schori was there, and that she participated in -- nay, directed and led -- the discussions. There is no way that she is not disqualified.

(Bishop Henderson might be disqualified under an additional proviso of Canon IV.19.14 (b) (6), if he has "a close personal or professional relationship" with any respondent or any complainant. I would be surprised if most of the Fort Worth Seven had not felt, before now, that they had a close personal and professional relationship with Bishop Henderson, since they all have been in ECUSA for more than twenty years, if not much longer, and have been meeting collegially at least until Bishop Henderson's retirement.)

According to a second letter received by the Fort Worth Seven from Bishop Mathews (dated October 19), the "Reference Panel unanimously decided ... that the complaint will proceed with ... Conciliation pursuant to Canon IV.10. After obtaining the agreement of the complainants, we will include in the process some representatives from the House of Bishops, in the spirit of our closed sessions, appointed by The Presiding Bishop [sic!!]. After some research for potential persons to serve as Conciliator, I will meet on October 29th with the person, who we hope will serve as the Conciliator..." [my bold emphasis].

So the kangaroo court proceeds apace, directed by "The Presiding Bishop"™ (of "The Episcopal Church" -- aren't we getting a little monomaniacal here?). She will appoint other bishops to get involved, and she also appoints the Conciliator. The complainants will be consulted and their agreement sought, but the Fort Worth Seven -- the "Respondents" -- will not have any role in determining the process to be used against them. Do you see just how fair a kangaroo court this is?

[UPDATE 10/26/2012: Episcopal News Service has now picked up on this story, and manages to go through it all without mentioning anything about disqualifications of the Reference Panel for conflict of interest. "Move on, folks -- nothing to see here -- just 'some blogs' circulating private information on the Web." This official spin is itself part of the very problem identified in this post: everyone at 815 is simply pretending that this is, to use the words of the DBB's President, "business as usual."]

The object of "Conciliation" under Canon IV.10 is to reach an "Accord" pursuant to Canon IV.14:

Sec. 1. An Accord may (a) provide any terms which promote healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among the Complainant, Respondent, affected Community and other persons; (b) place restrictions on the Respondent's exercise of ministry; (c) place the Respondent on probation; (d) recommend to the Bishop Diocesan that the Respondent be admonished, suspended or deposed from ministry;(e) limit the involvement, attendance or participation of the Respondent in the Community; or (f) any combination of the foregoing. An Accord may be conditioned on the Bishop Diocesan imposing any recommended admonition, suspension, deposition or conditions for restoration to ministry. An Accord providing for suspension from ministry shall specify on what terms or conditions and at what time the suspension shall cease. Any Accord providing for limitation upon the involvement, attendance or participation of the Respondent in the Community shall also provide conditions for restoration.

Subsection (a) sounds airy and grandiose, but subsections (b) through (f) are purely punitive in character. And if such kinds of punishment imposed on any of the Fort Worth Seven or Quincy Three will "promote healing, repentance, forgiveness, justice and reconciliation" in the Episcopal Church (USA), I will eat my hat.

It just gets more and more ominous. Section 3 of Canon IV.10 states: "If conciliation cannot be achieved within a reasonable time, the Conciliator will report such to the Bishop Diocesan, and the matter will be referred back to the Reference Panel" (bold emphasis added). At that point the Panel will choose among the options remaining to it: (a) determining that an appropriate "Pastoral Response" under Canon IV.8 will be sufficient (such "Pastoral Response" to be devised and imposed by The Presiding Bishop™ acting unilaterally so as to "promote healing, repentance, forgiveness," etc., etc., i.e., +Jefferts Schori could simply impose her own discipline on the Fort Worth Seven and the Quincy Three); (b) investigation in preparation for a subsequent hearing (trial); or (c) referral to The Presiding Bishop™ for agreement on terms of discipline -- i.e., the same thing an Accord would do.

Isn't it strange how, under these new and supposedly much more flexible Canons, all paths seem to lead to the same outcome? That outcome is action by Herself (The Presiding Bishop™), whether pursuant to an "Accord," a "Pastoral Response", or a sentence following a hearing. And don't forget Herself's new metropolitical powers under Canon IV.7: she may, at any time during this entire process, cut matters short and issue a "Pastoral Directive" which unilaterally imposes any sentence she wishes (short of full deposition).

To be sure, any such Directive is subject to review by the Conference Panel or the Hearing Panel (depending on where the case is when it issues), and may be overridden, affirmed or modified by that Panel, or by any subsequent Order it issues after conducting a Conference (informal) or Hearing (formal), respectively. Given that the episcopal (and some lay and clergy) members of those Panels are each partial for the reasons I set out in this earlier post, there is no reason to expect a fair outcome as long as disqualified members will not recuse themselves.

And just what are these specific violations of Canon IV.1 which the impartial Intake Officer, based in part on his own participation in the "private sessions" at the House of Bishops, determined, in all his objectivity, that the Fort Worth Seven may have committed? Ah, well -- now, that's a whole other post.

(To be continued.)

Arguing the Texas Cases (II)

[Note: For the first part of this post, see this link.]

In the second case argued to the Texas Supreme Court last Tuesday (Masterson, et al. v. Diocese of Northwest Texas, No. 11-0332), the attorneys and justices grappled with the same central issue that dominates the earlier Fort Worth case: do national and diocesan church canons have the ability, under any proper construction of the First Amendment's Free Exercise Clause, to override contrary Texas state laws?

The justices by their questions showed that they had each done extensive reading in preparation for the argument; they were familiar with both the cases relied upon by the parties, as well as with the record on appeal. The attorneys on each side did a masterful job of presenting well-reasoned and effective arguments -- but the ultimate clash, as just summarized, still remained clear by the time it was all over, as did (in my opinion) the position the majority of justices will take in resolving that clash.

The Diocese of Northwest Texas (unusually for the current Presiding Bishop, ECUSA has not intervened in the Masterson case; it contented itself with filing an amicus brief) argued that when the parish of the Good Shepherd in San Angelo affiliated with it, it agreed not only to "accede to," but also to forever abide by, the national Church's Constitution and canons. Thus it was bound by the "trust" imposed unilaterally upon all parish property by the Dennis Canon, even though it acquired title to its property by a quitclaim deed from the diocese in 1982 -- three years after the Dennis Canon was enacted. And then the Diocese itself passed a local "Dennis Canon" declaration of trust in 1984.

Ordinarily, a quitclaim deed conveys all the grantor's rights, interest and title, of whatever nature, to the real property conveyed -- without reservation. Thus, if the property came to San Angelo in 1982 with a Dennis Canon trust already imposed upon it, a title company could not have learned that fact by inspecting just the chain of title alone. (The Diocese's attorney attorney, Jim Hund, conceded in answer to a question on this point that the title company could learn about the existence of the trust only by inspecting the parish corporation's articles and bylaws, which referenced the national constitution and canons. He did not appear to appreciate the kind of burden that answer would place upon title companies -- one would have to know just where online to find them, and then know enough to go to the index entry at the very end for "Trust, all property held in". And even then, the title company would still be faced with the exact same question the Supreme Court was being asked to decide: can a national church canon override State trust laws?)

Mr. Hund went on to argue for the same interpretation of Jones v. Wolf that the Supreme Court of Connecticut gave to that case in its recent Gauss decision: that Jones itself commands that state courts and state laws must yield to trusts expressed in a national church's governing documents. But the justices were visibly perturbed by that reading of Jones, and wondered how the Supreme Court could make federal common law to that effect in an area that has always belonged to the States.

The attorney for the parish corporation, Reagan W. Simpson, stuck to his guns throughout. Texas, like every other State in the Union, has a statute declaring that a trust in real property must be created in a writing to that effect, signed by the settlor -- the person(s) owning legal title to the property being placed into trust. Other Texas statutes require a sufficient legal description of the property affected, and that the trust document be recorded where the property is located in order to put third parties on notice of the trust. The Dennis Canon satisfies none of these State law requirements.

Mr. Simpson especially emphasized that Texas is just one of five States with a law expressly providing that all trusts are revocable by the settlor, unless stated in the trust document (or an amendment thereto) expressly to be irrevocable. Thus, he argued, even if the Dennis Canon somehow attached to the San Angelo property, whether via ex post facto operation of the parish's original accession to the national canons, or via the local diocesan equivalent enacted in 1984, the parish could and did revoke the trust when it later changed its governing documents to remove the accession clause and its affiliation with the Diocese.

Mr. Hund argued in response that the "rules" of the Church and the Diocese did not "permit" such amendments, even though he had to concede that there were no express provisions at any level which forbade them. Instead, accession once made was permanent, etc., and precluded any kind of subsequent  withdrawal or revocation, etc., etc.

And so, round and round the arguments went. Once again, the only justice whom I felt was receptive to the Diocese's arguments was Justice Green, who posited questions that were sympathetic to the interest of the minority that wanted to "remain Episcopal." The others appeared clearly to resonate with Mr. Simpson's calm presentation of the issues (see especially the first five to six minutes of his argument). When, at the very end, the Chief Justice (who had remained silent through the proceedings) tossed him a softball question about the Roman Catholic Church being an example of a "hierarchical church," I got the distinct impression that the jig was up for ECUSA and its Diocese of Northwest Texas.

Nevertheless, even if the Supreme Court agrees with the parish and reverses the judgment against it, the attorneys both agreed that it will have to send the case ("remand" it) to the trial court for further proceedings to apply the doctrine of "neutral principles." The reason is that the parish did not itself ask for summary judgment below; only the Diocese did. And so if the Court finds that the Diocese was not entitled to summary judgment under Texas law, its reversal of that grant will still leave the case to go to trial (unless the parish makes its own motion for summary judgment after remand).

The opinion in Masterson is likely to come down before the Court publishes any opinion in the Fort Worth case, for reasons I explained in the first part. If it does, it should tell us, at a minimum, two things: (a) Texas courts must apply neutral principles of law to church property disputes; and (b) applying such principles, trusts in Texas must have the written consent of the property's actual owner to be effective. As Justice Johnson so aptly put it: "A church can say who its members are, but it cannot say what's a trust. If a church wants a trust, they have to come to us."

 

Once Again, Conflicts Galore on the Kangaroo Court

I am now confident that whoever may be in my limited audience, it is not anyone connected with the august Disciplinary Board for Bishops ("DBB" -- funny how those initials are the same as those of the Presiding Bishop's Chancellor, who is acting totally in concert with the Board to achieve its nefarious ends). The DBB was created under the provisions of the new Title IV adopted by ECUSA's General Convention at Anaheim -- after just fifteen minutes of debate -- in 2009.

The reason I can make that statement is that the DBB continues on its merry way, utterly oblivious to the conflicts which would disqualify many of its members from ever sitting as a judge at law (and one of them is a sitting judge). As far as the Rt. Rev. Dorsey Henderson and his legal counsel are concerned, the usual pattern of ignoring such problems altogether is the best way to conduct the Church's "business as usual," which has the goal of ridding itself of meddlesome bishops on flimsy and risible charges.

Example #1 in point: Bishop M. Thomas Shaw of Massachusetts has himself "abandoned the communion of the Episcopal Church (USA)", by an "open renunciation of the Discipline of the Church" -- exactly as the DBB, on which he sits, has proclaimed that +Mark Lawrence has done. Bishop Shaw, as we know, defied both the marriage canons and the Book of Common Prayer rubrics by interpreting Resolution C056 ("Liturgies for Blessings" [emphasis added]) adopted by General Convention in 2009 to allow him to authorize clergy in his Diocese to perform same-sex marriages, and then performed such a ceremony himself. According to Bishop Shaw, he and his suffragan bishops are the final authority on what the Canons and Resolutions of General Convention mean in their Diocese. So why is not Bishop Lawrence just as final an authority on the meaning of those same Canons in his Diocese, as well? And how can Bishop Shaw, having made that assertion (which in fact, is entirely correct), now seek to hold Bishop Lawrence liable for the latter's own judgment of the meaning they are to have in his Diocese?

Talk about hypocrisy -- but the members of the DBB (as well as David Booth Beers himself) are immersed in it up to their necks, day in and day out.

Example #2: Bishop Ian Douglas of Connecticut has likewise "abandoned the communion of the Episcopal Church (USA)" by heading a diocese which has never acceded to the Canons of General Convention, but only to the Church's Constitution. And yet he now is presuming to judge whether, by leading his Diocese to remove its previous accession to the Canons of General Convention, Bishop Lawrence has thereby "abandoned" communion with ECUSA.

Example #3: Bishop Herman Hollerith, Bishop of Southern Virginia, should have been brought before the DBB before they ever took up the case of Bishop Lawrence. In the proud and autonomous tradition of his parent Diocese of Virginia, which (like South Carolina) was one of the founding Dioceses of the Church, the Constitution of Bishop Hollerith's Diocese contains no accession clause of any kind whatsoever -- either to ECUSA's Constitution or to its Canons. And yet the DBB on which he sits has charged Bishop Lawrence with "abandonment" for his diocese's act of withdrawing its accession to the national Canons.

Example #4: Bishop Dorsey L. Henderson (retired) of Upper South Carolina, the person heading up the inquiry into "abandonment" charges against Bishop Lawrence is the very Bishop who led the "Title IV Task Force II" which drafted and then presented the revisions to Title IV for General Convention to adopt! Bishop Henderson also headed the Title IV Task Force II, which was charged with the duty of educating everyone in the Church about the new disciplinary Canons. In that capacity, he supervised the publication, in its name, of a written memorandum defending the new Canons against the charges of unconstitutionality made by Bishop Lawrence and his chancellor! Finally, Bishop Henderson serves on the subcommittee to bring out a revised edition of White and Dykman's classic series of treatises on the Constitution and Canons -- and what do you suppose that new edition will have to say about the constitutionality of the new Title IV?

Are we getting "kangaroo" enough for you here? Also serving on both the White and Dykman subcommittee (as its Chair) and simultaneously on the Disciplinary Board is Ms. Diane Sammons, an attorney lay member from the Diocese of Newark. She was a deputy from that diocese when the new Title IV passed the House of Deputies in 2009, and chaired the Standing Commission on Constitution and Canons at that Convention, which reported the new Title IV to the Houses for approval (caution: 1175 page .pdf, of which the pertinent information is on [printed] page 7 [page 15 of the .pdf]).

Practically all of the other Bishops and lay members on the Disciplinary Review Board are potentially just as disqualified as the above-named members. The reason for their disqualification is that the vote to enact the new Title IV Canons passed the House of Bishops at Anaheim in 2009 (see printed page 227 of the 2009 Journal previously linked) without any recorded votes of dissent by any of the bishops currently on the Board, and likewise passed the House of Deputies by a wide margin. Unless the DBB members who were at Anaheim in 2009 can show that they opposed or abstained from voting on the new Title IV when it was adopted by their respective Houses, they are hopelessly prejudiced against the stand now being taken by Bishop Lawrence and his Diocese. The latter claim that the adoption of Title IV was not in accord with ECUSA's Constitution; but the all the DBB members voting for its passage in 2009 demonstrated  that they already disagreed with him -- even before the charges against him had been brought.

[Nota bene: The episcopal members of the DBB, to say nothing of the Presiding Bishop herself, are further disqualified because of their having personally been involved in the ascertainment of the facts -- when they had "private conversation" with Bishop Lawrence on a "point of personal privilege" in the House of Bishops at the General Convention last summer, in Indianapolis. See further on this below.]

For instance, the same 2009 Journal (at printed page 52) shows that the Rev. Canon Angela Shepherd served as a Deputy to the General Convention in 2009, and if she also voted for the new Title IV, she should not now serve in judgment of Bishop Lawrence. (Canon Shepherd was in the deputation from Maryland, which was chaired by the Rev. Canon Mary Glasspool, soon to be elected suffragan bishop of Los Angeles.)

The only lay and clergy members of the DBB whose names I did not find in the 2009 Journal are the Hon. Joseph Alarid, who serves as a Judge of the New Mexico Court of Appeals; Ms. Josephine Powell; the Rev. Peggy Tuttle, and the Rev. Robert Two Bulls, Jr. That is just four of the current eighteen members.

I have saved a special case for last: Mr. William Fleener, Jr., who comes to the DBB after a long career as the Chancellor for the Diocese of Western Michigan. In that position, he and his bishop advocated the application of the Dennis Canon in a power struggle that enabled the raiding of a separate and independently incorporated endowment fund which had been set up for the failing Grace Episcopal Church in Grand Rapids. Not only that, but he likewise served on the House of Deputies' Legislative Committee on the Canons in Anaheim in 2009 (Journal, p. 425), and as such reported the new Title IV to the House for its approval. Then he was elected at that Convention to the Court for Trial of a Bishop, on which he participated in the proceedings against the Rt. Rev. Charles Bennison, Jr. The judgment in which he joined, finding the Bishop guilty as charged notwithstanding the canonical statute of limitations, was eventually reversed on appeal.

But we have scarcely begun to detail Mr. Fleener's many conflicts of interest. For he was also, in this same period, an active blogger, and expressed his views on the Church's constitution and canons for all to see and read. Here, for instance, in an October 30, 2008 post which he titled "The Chancellor of the Diocese of Fort Worth misleads members of the Diocese,"  is what he had to say about the parallel situation in the Diocese of Fort Worth:

The Stand Firm blog has this posting about advice from the Chancellor of the Diocese of Fort Worth. The Chancellor who is unnamed in the post concludes that there is no violation of a fiduciary duty to any entity by voting to take a church or diocese out of the Episcopal Church. I have written often over the last few years that this is in fact not true. The Chancellor uses some neat statements of the law and some assumptions that most do not agree with and comes to the conclusion his Bishop wants. There are many problems with this conclusion.
...

The parishes (corporations) as they existed before "the troubles" were formed under articles of incorporation and canons that had the parish a part of TEC and they agreed to abide by the Constitution and Canons of TEC. Any act that a vestry member contemplates that removes this or violates this, violates their fiduciary duty to the corporation/parish as formed. They may feel they have a valid reason for violating the duty, but this is a completely different question. The Chancellor of the Diocese of Fort Worth would suggest that there is no duty and this is simply incorrect

On February 2, 2010, Mr. Fleener put up at his blog a post ("Report by Dissidents") which had this to say about the documentation of the persecution of ECUSA bishops, clergy and parishes carried on under Presiding Bishop Jefferts Schori (and by individual dioceses before that):

... The alphabet soup that is dissident Anglicanism has released a report about how they were abused by the Episcopal Church. I was going to read it and then I read the article with its release. It contained this line.

This paper illustrates the lengths to which TEC leaders will go to silence the voices of orthodox Christians in the Anglican Communion - Anglicans whose only offense was to stand for the uniqueness of Jesus Christ and Anglican Communion teaching.

Wow. Only offense? How about taking property that doesn't belong to you? How about years of trying to undermine the Episcopal Church from within and when that wasn't going well leaving and trying to be members of both groups at the same time? How about "Seize the Day?" How about . . . I could go on and on. The idea that these are nice blameless people who have done nothing wrong is laughable. I decided not to read their rant. If they had some willingness to share some of the blame for these sad affairs I would have read it. But no. Not this group. Also missing I would guess (since I will not read it) is any mention of the lawsuits initiated by dissident groups.

If you want to read it, it is here.

http://www.americananglican.org/assets/Resources/TEC-Canonical-Abuses.pdf

But don't bother[. I]t will be exactly what you expect preening and posturing and a one sided description of activities that the[y] were mostly to blame for.

A nice showing of impartiality there, Mr. Fleener. Yes, you certainly must be qualified to sit in judgment of Bishop Lawrence's actions which the DBB claims constituted an "open renunciation of the Discipline" of ECUSA. For don't forget -- on October 28, 2009 you considered so noteworthy this hate piece by a San Francisco activist, specifically attacking Bishop Lawrence for his scriptural views, that you reproduced it in full on your blog.

Mr. Fleener's open partiality is welcomed on the Board, and considered par for its members. Your Curmudgeon's equally open partiality, however, is not so welcomed (the President of the House of Deputies recently informed me that she had chosen others to serve as the lay representatives on the Standing Commission on Constitution and Canons).

The standards of the Disciplinary Board for Bishops include these provisions, which spell out the "impartiality" required of all bodies which exercise functions under the disciplinary canons (Canons IV.19.14-15; I have added my comments on their application to this case in italics):

Sec. 14. Impartiality of officials and bodies described in this Title shall be addressed as follows:

(a) Any Bishop Diocesan exercising authority under this Title shall disqualify herself or himself in any proceeding in which the Bishop's impartiality may reasonably be questioned.

Comment: According to the timeline published by the Diocese of South Carolina in this matter, Bishop Jefferts Schori agreed to meet with Bishop Lawrence, after the Disciplinary Board had already met and decided to bring charges against him. In that meeting, her only concern appears to have been how long Bishop Lawrence planned to stay at his post. Later, after she had restricted his ministry based on what she saw as valid charges of "abandonment", she still wanted to meet with him -- while keeping the charges "confidential." She saw no conflict in her having to judge (under current Canon IV.16; formerly Canon IV.9) the "good faith" of any response made to the charges, all the while that she also possessed the power to declare anything he said to her in defense as a "voluntary renunciation of his orders." Are those the actions of an "impartial" diocesan?

(b) Any member of any Panel provided for in this Title shall disqualify himself or herself in any proceeding in which the member's impartiality may reasonably be questioned. The member shall also disqualify himself or herself when the member . . . (4) has personal knowledge of disputed evidentiary facts concerning the proceeding [such as the knowledge gained by listening to Bishop Lawrence in "private session" at the House of Bishops?], [or] (5) has a personal financial interest in the outcome of the proceeding . . . [such as the potential for being selected as the "provisional Bishop" to replace Bishop Lawrence, if he is deposed?]

And now, please get this next provision (IV.19.14 [c]), which in the context of the role to be played by the members of the DBB, is truly rich in irony:

(c) Any member of any Panel provided for in this Title who has not disqualified himself or herself as provided in this section may be subject to challenge by the Church Attorney . . . . The challenge shall be investigated by the remaining members of the Panel who shall determine whether the challenged member of the Panel should be disqualified and replaced according to the procedures of this Title for filling vacancies.

Let us see . . . in this post and in one previous to it on this topic, I have set forth the basis for why it would not be reasonable to think that fourteen of the Board's eighteen sitting members could act impartially in the matter of Bishop Lawrence. That leaves the four members named above as the sole judge of their colleagues' conflicts of interest.

But now those four have conflicted themselves out of the proceedings, as well. For there has been no announcement from Bishop Henderson that any of the Board's members recused themselves from considering the validity of the charges made against Bishop Lawrence. That being the case, it is now too late for those for to take up the "impartiality" of their colleagues -- they have joined with them, without open dissent or protest, in these kangaroo proceedings which would be laughable, were they not so tragic for the future of our Church.

New Level of Repression Signaled by Charges against +Lawrence

The certification of abandonment by ECUSA's new Disciplinary Board for Bishops, communicated to Bishop Mark Lawrence by Presiding Bishop Katharine Jefferts Schori on October 15, 2012, raises some very troubling questions. It also evidences a new degree of repression operative in ECUSA that seems designed to curb the free speech and other First Amendment rights of its clergy.

The first thing to note is the change in tone between this Disciplinary Board and the one that considered the same charges against Bishop Lawrence last year. In the certification just linked, after reviewing the actions of South Carolina's Diocesan Convention in 2010 and 2011, when it adopted a Constitutional amendment and other canonical changes to withdraw its accession to the Church's canons, and to qualify its accession to the ECUSA Constitution, the Board writes:

8. Bishop Lawrence further failed to “guard the faith, unity, and discipline of the Church” by presiding over the 220th Convention of the Diocese of South Carolina on February 19, 2011, at which Resolution R-6 was finally adopted on the second reading, without ruling it out of order or otherwise dissenting from its adoption.

9. The failure of Bishop Lawrence to rule these resolutions out of order or otherwise to dissent from their adoption, and in fact his endorsement of these resolutions in his address to the 219th Convention of the Diocese of South Carolina, violated his ordination vows to “conform to the doctrine, discipline, and worship of The Episcopal Church” and to “guard the faith, unity, and discipline of the Church,” as well as his duty to “well and faithfully perform the duties of [his] office in accordance with the Constitution and Canons of this Church,” constituting abandonment of The Episcopal Church by an open renunciation of the Discipline of the Church.

But in 2011, the previous Disciplinary Board could not find those same actions by Bishop Lawrence to rise to the level of "abandonment." As stated by the Board's President, the Rt. Rev. Dorsey L. Henderson, at the time of announcing that the Board had decided not to bring charges against Bishop Lawrence:

The abandonment canon (Title IV, Canon16) is quite specific, designating only three courses of action by which a Bishop is to be found to have abandoned the church: first, “by an open renunciation of the Doctrine, Discipline or Worship of the Church”; second, “by formal admission into any religious body not in communion with” the Church; and, third, “by exercising Episcopal acts in and for a religious body other than the Church or another church in communion with the Church ....” Applied strictly to the information under study, none of these three provisions was deemed applicable by a majority of the Board.

A basic question the Board faced was whether actions by conventions of the Diocese of South Carolina, though they seem—I repeat, seem—to be pointing toward abandonment of the Church and its discipline by the diocese, and even though supported by the Bishop, constitute abandonment by the Bishop. A majority of the members of the Board was unable to conclude that they do.

So the first time the matter of Bishop Lawrence's role in the diocesan conventions came up, a majority, at least, of the Disciplinary Board was careful to distinguish between the actions of the Diocese, and the actions of its Bishop. But this time, a new majority of the Board did not make that distinction, or consider it noteworthy. What changed between 2011 and 2012?

The Board's membership changed. Here is a link where you may still see the infamous Roster of the Board from last year, when it "mistakenly" showed Josephine Hicks -- the gay activist attorney assigned to investigate charges for the Board -- as a sitting member.

And here is a link to the list of current members, as shown on the Board's webpage, from which you can determine the following changes in Membership which occurred as a result of last summer's General Convention:

Went off Board at GC 2012:

Feliberty-Ruberte, Mr. Victor (IX - Puerto Rico)

Hayes, Mr. Christopher (VIII - California)

Menaul, the Rev. Marjorie (III - Central Pennsylvania)

Came onto Board after GC 2012

Alarid, Mr. Joseph (VII - Rio Grande)

Fleener, Jr., Mr. William (V - Western Michigan)

Tuttle, The Rev. Peggy (VI - Minnesota)

All other members of the Board remained the same (some were reelected, such as Bishops Douglas, Harrison, Hollerith, Mayer, and Singh, and the Rev. Canon Shepherd). Is it possible to account for the change in view by the replacement of just three of the Board's members? (The full Board is supposed to have 18 members -- ten bishops, four clergy and four lay persons. The current roster, however, lists just nine bishops, and Bishop Fitzpatrick of Hawaii, who was serving in 2011 as the Board's clerk with a term that would end at GC 2015, is for some reason not shown on the current roster.)

Consider: for a majority, at least ten of the Board would have to vote in favor of finding abandonment. Last year, they did not have ten votes; now they do. Thus if the three who left the Board this year had not been convinced of the charges, and eight others still on the Board were not convinced as well, that would leave a minority last year of nine (it could also have been a minority of seven or eight). And if that was the case in 2011, then the addition of the three new members, one or all of whom now voted for the charges, would have converted the former minority into a majority.

The Disciplinary Board does not appear to be bothered by this shift (there was no explanation offered), but orthodox Episcopalians should be. Under the new disciplinary canons of Title IV, which went into effect on July 1, 2011 (just before the previous charges against Bishop Lawrence were considered) the clergy have no constitutional rights which they may assert in proceedings against them. "Double jeopardy," in other words, is not recognized by the Board or by the Church -- which leads to the tactic of bringing up the same charges over and over again until there is a majority in favor of them.

But now look at the nature of the actions which underlie the first of the charges. Bishop Lawrence is accused of (a) not ruling out of order a motion to amend the diocesan constitution, (b) not dissenting from their adoption by the convention, and (c) advocating their passage in his pastoral address to the convention. As to the second charge, Bishop Lawrence is the Chair of the convention, and as such he has no vote unless he first steps down from that position. Charging him with "failure to dissent" is thus a non-starter. And as for "not ruling the motion out of order," any deputy to the Convention could have asked for such a ruling. Does that mean that every clergy attending the 2010 and 2011 conventions is liable to charges of "abandonment" because they did not make such an objection, or dissent from the resolutions' passage? (The minutes on the diocesan website -- Exhibits C and D to the certification of abandonment -- do not record any objections as having been made to the various resolutions; they record only their passage "by majority vote.") One has to wonder, but that appears to be the position of the complainers, and of a majority of the Board.

The third component of the first charge -- delivering a pastoral address which advocated passage of the resolutions in question -- shows how the Board has erased the distinction between the individual acts of a Bishop and the corporate acts of a Diocese. The real complaint is with what the Diocese did, and not with someone who spoke in favor of the resolutions. Again, if that is to be the new standard for charges constituting "abandonment," it will have a very chilling effect on what members of the clergy feel free to say at diocesan conventions.

The second and third charges in the certification fare no better under closer scrutiny. Bishop Lawrence is charged with a statement made in an amendment to the diocesan corporate articles filed with the secretary of state after the Convention had approved the amendments to the diocesan constitution. The change merely brought the corporate articles into synch with the constitution, and was purely a ministerial and clerical act. To elevate it into grounds for charging "abandonment" is ridiculous. Had Bishop Lawrence failed to sign an amendment to the articles after the deputies acted to change their constitution, his own convention could have charged him with abandonment.

And the third charge, of course, has to do with the signing and recording of the famous quitclaim deeds, following the 2009 ruling of the South Carolina Supreme Court in the Pawley's Island case. The Court ruled in that case that ECUSA's Dennis Canon did not comply with state law requirements for creating a valid trust. Bishop Lawrence's deeds served both to recognize the binding character of that ruling on the two Episcopal dioceses in the State, as well as to calm individual parish fears about possibly losing their church property. It was a consummate pastoral act, and represented an honest assessment of the Church's obligation to comply with South Carolina state law.

Making this particular act into a charge of "abandonment" shows the fine hand of Episcopal Forum attorney Melinda Lucka, who has consistently argued that the All Saints Waccamaw decision does not mean what it says. It now comes out that she is the attorney who advised the complainers on submitting charges to the Disciplinary Board. (She is also the attorney who thinks that the Executive Council -- whose existence and authority is not recognized in ECUSA's Constitution -- could somehow rule illegal the constitutional acts of a member diocese, and that such a nonsensical "ruling" would somehow be "binding" on that diocese.)

In short, the third charge is based on a flawed legal contention. There is no showing thus far that the Disciplinary Board obtained a formal legal opinion from a qualified and disinterested South Carolina law firm before deciding to act on Ms. Lucka's "charge". And if, as I suspect, they did not do so, then it shows just how partisan they now are.

Bishop Lawrence has 60 days in which to answer the charges, but he will not do so, as he could not enter into their rigged game without waiving his position that the new Title IV has no force or effect in South Carolina. Moreover, his diocese is no longer even a member of ECUSA, and so the Church's organs and agents have no jurisdiction whatsoever over him. They will still have to go through the motions of "deposing" him, but that is the Church's fault -- it refuses to allow its bishops or other clergy to leave peacefully, and can get them off its books only by charging "abandonment" or "renunciation."

Indeed, any communication Mark Lawrence makes in public about the charges or his diocese now runs the risk that the Presiding Bishop will treat it as she did in the case of Bishop Iker, and declare that it constitutes a "voluntary renunciation of orders" so that she can shorten the process of his removal, and not have to bother with a meeting of the House of Bishops. And in fact, now that I think about it, mark my words -- watch for that very thing to happen.

Fortunately, therefore, the Diocese of South Carolina is now rid of these partisans, and good riddance it is. The rest of us Episcopalians, however -- particularly orthodox clergy -- cannot feel comfortable with the direction that matters are taking with the bringing of these charges. For as noted above, any clergyperson who does not speak up at a convention, or who does not dissent from a vote, or who simply acts in accordance with state law, is now subject to charges under the new Title IV. Welcome, O Brave New World!

There They Go Again ...

It has been obvious for quite some time that the Episcopal Church (USA) has wanted to pick a fight with Bishop Lawrence and his Diocese of South Carolina, one of the larger and more successful in the Church. But success in winning new communicants has never counted for much ever since the advent of the Most Rev. Katharine Jefferts Schori to head up ECUSA. No, what counts far more in her book is subordination to her metropolitical delusions of grandeur.

So it was entirely predictable that the Bandit Bishop would make the first move, acting through her new Disciplinary Board for Bishops (the existence of which the Diocese of South Carolina does not recognize). From an announcement recently posted on the Diocese's Website:

On Monday, October 15, 2012, Bishop Mark J. Lawrence, the 14th Bishop of the Diocese of South Carolina was notified by the Presiding Bishop of The Episcopal Church, Katharine Jefferts Schori, that on September 18, 2012 the Disciplinary Board for Bishops had certified his abandonment of The Episcopal Church. This action by The Episcopal Church triggered two pre-existing corporate resolutions of the Diocese, which simultaneously disaffiliated the Diocese from The Episcopal Church and called a Special Convention. That Convention will be held at St. Philip’s Church, Charleston, on Saturday, November 17, 2012.

Bishop Lawrence was notified of these actions taken by the Episcopal Church between two meetings, one held on October 3 and one to be held on October 22, which Bishop Andrew Waldo of the Upper Diocese of South Carolina and Bishop Lawrence had set up with the Presiding Bishop to find a peaceful alternative to the growing issues between The Episcopal Church and the Diocese of South Carolina. The meetings were to explore “creative solutions” for resolving these issues to avoid further turmoil in the Diocese and in The Episcopal Church. A timeline of these events and their associated documents may be found below.

Two of the three charges had previously been determined by a majority vote of the Disciplinary Board for Bishops in November 2011 not to constitute abandonment. The Diocese has not received a signed copy of the certification and also remains uninformed of the identity of those making these charges.

We feel a deep sense of sadness but a renewed sense of God’s providence that The Episcopal Church has chosen to act against this Diocese and its Bishop during a good faith attempt peacefully to resolve our differences. These actions make it clear The Episcopal Church no longer desires to be affiliated with the Diocese of South Carolina.

Be sure to go to the Diocese's Website to follow the links to all the documents provided. I shall have much, much more to say about this needless confrontation, and the resulting self-inflicted tragedy (where ECUSA under its Presiding Bishop is literally shooting itself in its collective foot), in the days to follow.

Arguing the Texas Cases

The videos of the oral arguments yesterday in the two church property cases before the Texas Supreme Court are now archived. The first, The Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church (No. 11-0265), may be watched here; the second, Robert Masterson, et al., v. Diocese of Northwest Texas, et al. (No. 11-0332), is at this link.

The two cases involved similar issues of property law: under the "neutral principles" approach, how do courts resolve intra-church disputes over who has control of the entity holding title to the real property? In both of the cases, the entities holding the legal title are corporations; and in both cases, the Episcopal Church (USA) -- or the diocese (in the Masterson case) -- claim the right to decide just who may occupy the offices in those corporations.

The central point, then, was what writings, agreed to before the dispute ever arose, vested the religious organizations with that authority? The attorneys for the national Church and its dioceses struggled mightily to give a straight answer to that question, and by my own estimate (after going through the arguments twice), they never did give a straight answer to it. Instead, the attorneys blustered: "the national canons and constitution . . . church is hierarchical  . . . all the courts around the country have found it so . . . everyone knew 'the rules' when they joined . . .".

Well, fine -- but just what are those "rules"? The Church's Presiding Bishop, or its General Convention, or its Executive Council, have no authority inside a given diocese. As Scott Brister argued in rebuttal for Bishop Iker and his diocese, very effectively: "[They] can't appoint a bishop; they can't ordain a priest; they can't discipline or remove a priest; they can't marry anybody in the diocese; they can't bury anybody in the diocese; they can't preach to anybody in the diocese; they can't stop the purchase of any property; they can't stop the sale or misuse of property. . . They do not have any right to review our [diocesan] constitution or canons once we decide to change [them]. [But] we have the right to vote on whether they can change theirs."

In the Fort Worth appeal, the Court appeared to defer a good deal to Scott Brister -- he is, after all, one of their own, as a former Justice on the Court. But at the same time, as I say, he had all the best arguments -- he stuck to what the constitutions, canons, articles and statutes all actually said. In response to his literal arguments, ECUSA's national and local attorneys offered mostly bluster.

He also scored one of the best points of the day, when he said in the opening minutes of his argument:

[My learned opponents say that church] property in Texas belongs to the people who remain loyal to the larger church. That wasn't the rule when the Episcopal Church left the Church of England in 1789; the members who didn't remain loyal took all the property. That wasn't the rule when the Church of England left the Church of Rome in 1534; the members who weren't loyal took all the property. The Episcopal tradition is just the opposite of what they say it is, and that's the kind of distortion that is the reason we require rules regarding property to be in writing.

The Justices seemed well inclined to adopt "neutral principles" as the approach to follow in Texas church property cases. Mary Kostel's argument that they should adhere to the deference rule was self-serving (she is the Special Assistant to the Presiding Bishop for Litigation), and did not appear to find any takers on the Court. On the whole, she seemed to me to be lecturing the Court on what it should do, rather than advocating for her position, and I cannot imagine she helped her cause with her "argument from omniscience."

ECUSA's local counsel, Mr. Leatherbury of Vinson and Elkins, acquitted himself much more smoothly, and was initially an effective foil to Scott Brister. But he, too, eventually succumbed to falling back on unwritten and implied "rules" deriving from things like canons enacted in 1868 and weak words like "accede". For Mr. Leatherbury and his clients, "accede" means "agree irrevocably and in perpetuity," not simply "agree." Courts are generally reluctant, however, to read perpetuity into promises that do not contain that or an equivalent term in writing, and I predict that the Supreme Court of Texas will be equally reluctant to do so here.

Watching an oral argument can be frustrating for someone who has read all the briefs and knows the record -- I can imagine how frustrating it was for Bishop Iker and his colleagues (to say nothing of Bishop Ohl and his colleagues). The Justices touch upon little technicalities, such as jurisdiction to hear the direct appeal, and dance around the big and central issue without ever addressing it directly. But now having reviewed the tape twice, I have a firm conviction that most, if not all, of the Justices have the bigger picture firmly in mind. (Justice Paul Green, with his concern for fairness to the minority who remained loyal to the national Church, may be the exception.)

Indeed, Justice Medina put it succinctly to Mr. Leatherbury when he asked him (tape at 24:50): "What happens when, as you say, your 'canonical restrictions' -- what happens when they conflict with Texas law?"

Exactly, Justice Medina. Mighty and old though it may be, the Episcopal Church (USA) still has to comply with local Texas law if it wants to order itself in that State in the manner it claims to be ordered.

ECUSA, in short, cannot waive an Episcopal wand where property is concerned -- too much of business affairs, inheritance law and finance depend on fixed and settled rules about how interests in real property are created, held, and extinguished.

Texas law is much clearer than most States on many points regarding property: a trust in Texas, for instance, may always be revoked, unless it is expressly declared to be irrevocable at the time of its creation. (In California, by way of contrast, a special statute enacted in 1981 is read by California's Supreme Court to make religious trusts created by national canon effective in the State, and to allow such trusts to be revoked only by national canon, as well, and not by the individual parish.)

But now I am getting into the issues involved in the second case (Masterson), and I shall end this post in order to take up the latter case when I post next.

Oral Arguments Tomorrow in Texas and Virginia

On October 16, beginning at 9 a.m. Central (Daylight) Time, the Texas Supreme Court will hear oral arguments in two Episcopal church property cases: first (starting at 9:00) will be The Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church, et al., Case No. 11-0265. You can find downloadable versions of all the briefs (including amici briefs) at this link. The Court's official summary of what is at stake in the case is as follows:

The principal issue in this case is essentially the same ownership question as that in 11-0332, Robert Masterson, et al. v. Diocese of Northwest Texas, et al., set to be argued the same day: whether in Texas the a diocese seeking to leave the U.S. Episcopal Church or the larger Episcopal governing entity owns the church property in the diocese and whether ownership should be decided by "neutral principles" using established trust and property law and taking account of deeds, the governing language employed by a local church and the larger denomination, or by "compulsory deference", determining where church members place ultimate authority over property use.

The other case, referred to in the summary of the Fort Worth case just given, is Robert Masterson, et al. v. Diocese of Northwest Texas, et al., Case No. 11-0332 (briefs may be downloaded here). Arguments in Masterson will immediately follow the Ft. Worth arguments, beginning at 9:50 a.m. Here is the Court's summary of that case:

The principal issues in this property dispute between the diocese and a breakaway congregation are (1) whether in Texas the dispute should be decided by “neutral principles” – using established trust and property law and taking account of deeds, the governing language employed by a local church and the larger denomination – or by “compulsory deference” – determining where church members place ultimate authority over property use and (2) whether the trial court erred by deciding the diocese owns the property.

To watch the oral arguments tomorrow, go to this page and click on the respective case names when they are highlighted in blue.

As described earlier in this post, the Virginia Supreme Court will also hear oral argument tomorrow from just the attorneys for The Falls Church on why it should agree to review the decision of Judge Randy Bellows. There is no online video for court sessions, but the public is welcome to attend and listen to the brief (ten-minute) argument (The Falls Church case is No. 32 on the list of cases to be heard tomorrow), which is scheduled for 1:00 p.m.

"Jesus' Wife" Fragment Almost Certainly a Forgery

Oops!

If you want to create a forgery using the latest techniques to fabricate aged papyrus and ink, best not rely upon the Internet for your text source.

The much-touted scrap of papyrus, containing just a few lines of Coptic text mostly from the Gospel of Thomas, has been regarded by scholars in the field as suspicious almost from the first announcement of its unveiling -- even by the professor at Harvard Divinity School who made the announcement.

The editor of the Vatican's newspaper pronounced the fragment a fake after reviewing a detailed line-by-line study of its text by a Coptic scholar, which those interested may read here.

Now, don't let the technical discussion of Coptic orthography and grammar put you off: to understand why the fragment is almost certainly a fake, we have to delve into some arcana, and I shall try to make it as easy as possible to follow, by using all the Web resources at my command.

In the scholarly article just linked, Dr. Watson (what a perfect name for this investigation!) of Durham University notes the presence of an unusual "grammatical error" in the fragment. Take a look at this line of text from the 50th Saying in the Gospel of Thomas which he reproduces on the second page of his offprint (GTh 50.1):

 

The underlined portion of that text is the portion that appears in the upper right corner of the first line of the fragment, as you can see from this close-up of it (H/T: Mark Goodacre's NT Blog):

The picture cuts off the alpha character at the start of the underlined portion above, but you should be able to make out the rest of the characters by matching them one-for-one to the underlined text. Also, note that after the pi character (π) the fragment has only one-half of the omega (w-shaped) character, with the rest of the last word (which means "life" in Coptic) in the line torn off.

Now compare the first line of the fragment with the actual Coptic text of the start of Saying 50, as reproduced above. Notice the one character in the underlined part which is not underlined: it is like a Roman capital M with a bar line over it. The fact that Dr. Watson did not underline it means that it is missing from the fragment in the text, as you can see again from the picture. The fragment goes directly from the iota (i) to the pi character, and that is just the problem.

For as explained in more detail at this link (as well as more briefly in footnote 3 of Dr. Watson's paper), that missing bar-M character is essential to make the phrase grammatically correct in the Coptic language. Its absence signifies either an illiterate, or negligent, copyist. But could it also signify more?

Scholars at first appear to have assumed that it was just a scribal error, as Dr. Watson did in his paper. But then the fact that all of the selections which the fragment quotes from the Gospel of Thomas match perfectly with the one known copy we have extant of that document (as recovered at Nag Hammadi) began to make them suspicious: what are the odds that a third-century copyist would have exactly the same original text to work from as the one who made the full-length copy that we have known about since 1945?

The suspicion deepened to near certainty when another Coptic scholar, Michael Grondin -- who had posted on the Web his interlinear translation of the Coptic original of the Gospel of Thomas -- noticed that his Web version of the text contained by accident the very same grammatical error in the exact same spot.  Here is an enlargement of the particular page (18) from Dr. Grondin's .pdf of his interlinear version  (again thanks to Mark Goodacre) -- notice the M-bar character is also missing between the iota and the pi:

Now, what are the odds of that?

Dr. Grondin posted his online version in 2002, and had not revised it since then. (No scholar had called the error to his attention.) It was based on the published text from the Nag Hammadi library, whose printed version does have the missing M-bar character in its proper place. But in scanning the text for his Web version, the scan apparently missed it, and our forger's mistake was evidently in relying upon the Internet-based version of the text, and not a printed one, for his forgery.

Many Christians knew from the outset that the claimed text was, if not a fraud, a Gnostic invention: Jesus never married, or else his instruction from the Cross to the apostle John to take care of his mother would have been a cruel, and very un-Jesus-like, rebuff of his supposed spouse.

Well, now we know which it is -- and once again, the popular Christian-bashing press (as well as the liberals at General Theological Seminary and other Episcopal schools), who so celebrated the find as an embarrassment to Christianity -- can eat crow.

Obamacare Could Come Before SCOTUS Again

The Supreme Court of the United States began its October 2012 term last week. Little noticed, among the various orders it issued at the outset, was a request in Case No. 11-438 (see p. 7 of the order list) that the Department of Justice -- that is, the Solicitor General -- respond to a petition for rehearing filed over the summer in a case which the Court had declined to review on June 29, 2012 -- the day after it issued its controversial decision in National Federation of Independent Business, et al., v. Sebelius upholding Obamacare as a valid exercise of Congress' power to tax.

Just what is the significance of that request? A procedural history is essential here, in order to place the matter into context.

The decision handed down on June 28, 2012 in NFIB v. Sebelius upheld two parts of Obamacare: (1) it found that the penalty imposed for failing to purchase health insurance was a valid exercise of Congress' taxing power; and (2) the expansion of Medicaid for the States was also proper, but the condition Congress imposed on the States for that expansion was not.

Along the way, in order to reach its first result, the Court had to decide that the federal Anti-Injunction Act ("AIA"), which prohibits courts from prematurely preventing taxes from going into effect, did not apply to Obamacare.

It did so, you may recall, through Chief Justice Roberts' distinction between a "tax" and an "assessment / penalty." Only the former would be affected by the AIA, and since in passing Obamacare Congress did not use the word "tax" (but only the words "assessment" and "penalty"), the AIA as such did not reach Obamacare. Hence the federal courts were not prohibited from considering the validity of the legislation before it went into effect (in 2014).

One of the many cases to reach the Supreme Court last term was No. 11-438, entitled Liberty University, et al. v. Geithner, et al., a petition to review a decision by the Fourth Circuit Court of Appeals in Richmond, Virginia. The case had been brought by Liberty University and others who contended that Obamacare would require them to purchase insurance coverage which would force them to support abortions, and hence violate their religious beliefs.

The federal District Court in Lynchburg, Virginia dismissed the suit on its merits, finding Obamacare constitutional, and also ruling on the way (as Chief Justice Roberts and four other Justices did later) that the AIA did not require dismissal for lack of jurisdiction. The plaintiffs appealed to the Fourth Circuit.

On September 8, 2011, that Court vacated the District Court's opinion and remanded the case with directions to dismiss it under the provisions of the AIA.

Got that? The district court in Lynchburg held that the AIA did not bar the suit, and upheld Obamacare on its merits against plaintiffs' First Amendment arguments. The Court of Appeals in Richmond held that the AIA did bar the suit, and so vacated (i.e., erased from the books) the lower court's ruling as to the constitutionality of Obamacare's provisions.

The plaintiffs then filed a petition for review of the Court of Appeals' decision with the United States Supreme Court.

On June 28, 2012, as noted earlier, SCOTUS handed down its Obamacare decision (NBIF v. Sebelius), in which it found -- contrary to the ruling by the Fourth Circuit Court of Appeals in the Liberty University case -- that the AIA did not deprive lower courts of jurisdiction to consider the constitutionality of the Patient Protection and Affordable Care Act.

But the very next day, it entered an order denying Liberty University's request to review a decision that was directly contrary to what it had held the day before.

Talk about unfairness -- the effect of the Supreme Court's order was to deprive the Liberty University plaintiffs of the right to have their constitutionality arguments ever considered in court again. The order denying review would let stand the Fourth Circuit's order to the district court to dismiss the case for lack of jurisdiction, without ever reaching the merits of the statute itself.

This was critical, because in deciding the Sebelius case, SCOTUS never considered the constitutionality of the Obamacare mandates under the First Amendment, i.e., the very arguments raised by the Liberty University plaintiffs in their case. So those arguments would still be open to other plaintiffs to make -- just not the Liberty University plaintiffs. All the work which plaintiffs and their opponents put into briefing the case (as well as the briefs submitted by hundreds of amici -- "friends of the court", i.e., interested outsiders whom the court allows to offer their views on the issues in the case) would go for naught.

Hence came the request by the plaintiffs, filed with SCOTUS over the summer, to reconsider its denial of review. Instead, they ask the Court to grant their petition, to vacate the Fourth Circuit's decision on the ground that it was overruled by the decision in NFIB v. Sebelius, and to remand the case to the Court of Appeals to consider plaintiffs' constitutional arguments against Obamacare on their merits. (Here is a link to a .pdf copy of their petition.)

The Supreme Court could have denied the petition for rehearing outright, as it does with almost 99% of such petitions. But every now and then, where there is a possibility that the Court made a genuine mistake, it will grant one.

Before doing so, however, its rules require it to give the opposing parties a chance to be heard. Hence the "request" (n.b.: not an order -- the Solicitor General is free to, and frequently does, take a pass on such requests) to the "respondents" -- Secretaries Geithner and Sebelius, and Attorney General Holder -- to file a response to Liberty's petition within thirty days.

If the Supreme Court grants the relief requested, the Liberty case will go back to the Fourth Circuit. That Court will then call for briefing "on the merits" -- i.e., on the religious issues under the First Amendment raised both by the individual and employer mandates in Obamacare to purchase insurance that provides coverage for free contraception and abortion services.

Then, after hearing oral argument, the Fourth Circuit panel will rule, one way or the other: the mandates are either constitutional, or they are not. And no matter which way the Fourth Circuit rules, the losing party will petition SCOTUS to review that decision.

In that event, the Supreme Court will once again be given an opportunity to rule that Obamacare is unconstitutional -- but on grounds which are different from those it considered in the Sebelius case. And it if finds for the Liberty University plaintiffs, Obamacare will go down, regardless of whether it is a valid exercise of the taxing power or not, because Congress is forbidden from exercising that power in such a way so as to infringe upon rights guaranteed under the First Amendment.

There are other lower court cases raising the same issues, but as far as I am aware, none of them has reached an appellate court yet. So the Liberty University plaintiffs could, if the Supreme Court acts next month to grant the relief they have requested, have in inside track to bring their arguments to the Court first.

Of course, if Barack Obama fails to be re-elected to a second term, then it is possible also that the next Congress will repeal Obamacare in toto. That would make all of the pending cases moot.

It is only if Obama is re-elected that we know that the statute's mandates will be implemented, and thus remain subject to challenge until SCOTUS decides on their validity.

So stay tuned -- as they say here out West, "the opera ain't over until the fat lady sings."

A Canonical Joke

Wolfgang Amadeus Mozart once penned in jest a composition so bad that he entitled it A Musical Joke (in German: Ein Musikalischer Spaß).   If you would like to hear it performed by a modern orchestra, here is a link to the first movement, with links to the other three movements in the sidebar. 

The piece breaks nearly every compositional rule that had evolved until that time -- it features parallel fifths, offbeat accents, terrible transitions, egregious writing for the horns (who used a notation that was notoriously difficult for amateurs to learn), and a level of overall banality and triteness that only a true master could commit knowingly to the page.

Mozart was having fun, as only such a genius could, at the expense of all the wealthy aristocrats who owned private orchestras and fancied themselves inspired composers, but who in reality were just dilettantes.

They could command their own orchestras to perform their execrable compositions, while the musicians could take no public revenge -- so Mozart stepped up to give the house-tied musicians their own voice.

They now could perform a piece that was so bad that it made their master's compositions look good! And only the musicians would be in on the joke, as no doubt their master would praise their taste in having chosen such an outstanding practitioner of the art for a vehicle which would (1) show forth their talents, and (2) reflect the discretion and glory of the aristocrat who retained them.

(If you really want to get in on the joke, listen here to the insipid third movement, and pay attention to the solo for the horns.)

Well, it has taken more than 220 years, but now we have the canonical equivalent, within the Episcopal Church (USA), of Mozart's Musical Joke. Except that this joke is not the offspring of a canonical genius -- instead, it is the equivalent of one of those dilettantish compositions by privileged aristocrats which inspired Mozart to pen his immortal spoof.

For this canonical joke is outwardly a respectable appointment, made by the Presiding Bishop acting under her authority under ECUSA's Canons, of the episcopal members of the Disciplinary Board for Bishops, announced yesterday on the Church's official Website. Here is the official text of her announcement:

Episcopal Church Presiding Bishop Katharine Jefferts Schori has announced appointments to the House of Bishops Committees for the 2013-2015 triennium as well as the bishop appointments to the General Convention Joint Committees and Standing Commissions.

Appointed by the Presiding Bishop are:
...

Disciplinary Board: Bishops Ian Douglas of Connecticut, Dena Harrison of Texas, Herman Hollerith of Southern Virginia, Scott Mayer of Northwest Texas, Thomas Shaw of Massachusetts, Prince Singh of Rochester, James Waggoner of Spokane, Catherine Waynick of Indianapolis. (Note: Dorsey Henderson of Central Florida is president of the Disciplinary Board and was elected by the HOB) ...

Do you see the joke in that announcement?

The Presiding Bishop has appointed no less of an episcopal personage than the Right Reverend Thomas Shaw, of the Diocese of Massachusetts, to sit in judgment of accusations brought against his peers, i.e., other Episcopal Church bishops.

This is the same Bishop Shaw who flagrantly violated the canons and BCP rubrics regarding the celebration of a ceremony of marriage in the Episcopal Church. He illegally presided as the celebrant, in St. Paul's Cathedral, Boston, of the lesbian same-sex rites between Dean ("Abortion-Is-a-Blessing") Katherine Ragsdale, of the Episcopal Divinity School in Cambridge, and his own canon to the ordinary, the Rev. Mally Lloyd.

When he performed the ceremony, in January 2011, General Convention had authorized (in 2009) a "generous pastoral response" to persons of the same sex who were cohabiting. It did not explicitly purport to authorize the performance of same-sex blessings until it adopted Resolution A-049 in Indianapolis this past summer.

Regardless of what General Convention may have considered to be allowed within the compass of its ambiguous words "generous pastoral response" in 2009, it could not have intended to authorize the performance by Episcopal clergy, in an Episcopal church, of marriages between persons of the same sex. That is because both the Canons of the Church, as well as the rubrics of its Book of Common Prayer, have always defined marriages in the Church as between "a man and a woman."  

Despite those in the Church who seem to think that General Convention is unlimited in what it can do, there are boundaries upon its authority, placed by ECUSA's Constitution. That document requires the approval of two successive General Conventions to authorize changes to the Book of Common Prayer. And it has contained that requirement ever since its first adoption in 1789.

The acts of General Convention in passing Resolution C-056 in 2009, and again in passing Resolution A-049 in 2012, did not rise to the level of a purported amendment of the Book of Common Prayer. These were mere resolutions, which had no further effect than to express the "mind of the Convention" at that particular moment. They were at the time, and are now, not binding upon anyone, let alone upon bishops or dioceses -- they simply gave official permission for bishops to act within their already existing powers.

Those powers emphatically have never encompassed the flagrant disregard of the Book of Common Prayer.  That Book, still as of this very day, sanctions marriage in the Episcopal Church as only between a man and a woman. And under the new Title IV, bishops (and other clergy) who violated the previous version of the Canons (in effect until July 1, 2011) may still be prosecuted: violations of the old canons are treated (within specified time limits) as violations of those current canons with equivalent  provisions.

Our Presiding Bishop, who is known far and wide for her respect for the language and authority of the Church's Constitution and Canons (to say nothing of its Book of Common Prayer), has thus seen fit to appoint, to the very body charged with the responsibility of disciplining Bishops for their violations of those august documents, a genuine miscreant -- one who is wide open to being charged with having violated Canon IV.3.1, which states in relevant part:

Sec. 1. A Member of the Clergy shall be subject to proceedings under this Title for: 

(a) knowingly violating or attempting to violate, directly or through the acts of another person, the Constitution or Canons of the Church ...

Equally, Bishop Shaw may still be charged with having openly and notoriously violated current Canon IV.4.1 (b):

CANON 4: Of Standards of Conduct

Sec. 1. In exercising his or her ministry, a Member of the Clergy shall:
... 

(b) conform to the Rubrics of the Book of Common Prayer ...

And this miscreant, this Bishop of the Episcopal Church (USA), is to sit in judgment over his fellow bishops who are (so far as we less privileged ones may know) yet to be charged with canonical violations of their own.

It is, as I say, a Canonical Joke -- one composed not by a genius akin to Mozart, but only by a far, far lesser light, who is utterly unable to understand, honor or follow the one indisputable rule by which the entire Church has agreed to abide for the last 223 years.

And thus does the Episcopal Church (USA) descend into its own peculiar hell of irrelevance and inconsequence -- on a path paved, as St. John Chrysostom once said, "with the skulls of erring priests, with bishops as their signposts."