Monday, December 29, 2014

What Episcopalians Have Lost

Episcopalians (referring only to those in the Episcopal Church [USA], and not those in the Episcopal Diocese of South Carolina) could have heard a Christmas sermon like this:
From Mabel's Christmas Letter:

Now when I remem­ber Christ­mas I think of the trees and lights and dec­o­ra­tions and I recall all the busy shop­ping for presents. But most of all I remem­ber my friends, most of whom have died or are as fee­ble as I. And I remem­ber my fam­ily, my father and mother and sis­ters and brother, and my dear dar­ling hus­band, Hank, and of course my chil­dren, grand­chil­dren and great grand chil­dren spread out over this great coun­try of ours. And I remem­ber singing car­ols at the church. Oh how I used to love that Can­dle­light ser­vice. But mostly now I think of my Lord.

I don’t know what peo­ple do who cel­e­brate Christ­mas with­out the Lord Jesus. They must feel ter­ri­bly empty when they wake up the next day with presents unwrapped, the food eaten and life back to nor­mal. No won­der the doc­tors say so many folk get depressed dur­ing the hol­i­days. I think peo­ple have for­got­ten that Love came down at Christ­mas. God’s Love! God’s Son—our Sav­ior! He did not grow up out of this ancient world of ours as if he was the best we had to offer. No, dear friends, He came down from heaven—God looked down and saw our need and so He sent His Son. That is why we call him, Immanuel, “God with us”. It is odd how you learn new things about that. Twelve years ago when my hus­band died it was my first Christ­mas in 54 years with­out my dar­ling Hank. I was all alone in my liv­ing room and I said, “Lord, I don’t think I can go on. I’m so alone.” Then the room seemed to grow unusu­ally quiet and the Lord seemed to say to me, “Mabel—you are not alone—always there will be two of us. Oth­ers may leave but I will stay.” That’s what Christ­mas means to me. God is with us—God is with me.

So go ahead. Dec­o­rate your trees and houses. I sup­pose it puts us all in a more cheer­ful mood. Give the chil­dren their gifts. Fill your stom­achs with all the deli­cious foods. But lis­ten to an old lady, if only for a moment. Sooner or later a per­son has to real­ize he is not going to live for­ever. No mat­ter how hard we try to live upstand­ing lives there is a lot we do in this life for which we need to be for­given. When we stand before God’s judg­ment every­one needs a Sav­ior....

But instead, the Christmas sermon Episcopalians heard was this one:
The altar hanging at an English Advent service was made of midnight blue, with these words across its top: “We thank you that darkness reminds us of light.” Facing all who gathered there to give thanks were images of night creatures – a large moth, an owl, a badger, and a bat – cryptic and somewhat mysterious creatures that can only be encountered in the darkness.

As light ebbs from the days and the skies of fall, many in the Northern Hemisphere associate dark with the spooks and skeletons of secular Hallowe’en celebrations. That English church has reclaimed the connection between creator, creation, and the potential holiness of all that is. It is a fitting reorientation toward the coming of One who has altered those relationships toward new possibilities for healing and redemption.

Advent leads us into darkness and decreasing light. Our bodies slow imperceptibly with shorter days and longer nights, and the merriness and frantic activity around us are often merely signs of eager hunger for light and healing and wholeness.

The Incarnation, the coming of God among us in human flesh, happened in such a quiet and out of the way place that few noticed at first. Yet the impact on human existence has been like a bolt of lightning that continues to grow and generate new life and fire in all who share that hunger.

Jesus is among us like a flitting moth – will we notice his presence in the street-sleeper? He pierces the dark like a silent, streaking owl seeking food for hungry and defenseless nestlings. He will overturn this world’s unjust foundations like badgers undermining a crooked wall. Like the bat’s sonar, his call comes to each one uniquely – have we heard his urgent “come and follow”? ...

O, foolish Episcopalians! How you have squandered your treasures!

Tuesday, December 16, 2014

Beethoven Benedictus

(Nikolaus Harnoncourt, Conductor; Royal Concertgebouw Orchestra and Chorus)

Sunday, December 14, 2014

Why the Persecution of Christians Must Increase

From the Gospel according to Matthew, ch. 24 (all translations in this post are from the New English Translation):

 For many will come in my name, saying, ‘I am the Christ,’ and they will mislead many. You will hear of wars and rumors of wars. Make sure that you are not alarmed, for this must happen, but the end is still to come. For nation will rise up in arms against nation, and kingdom against kingdom. And there will be famines and earthquakes in various places. All these things are the beginning of birth pains.
“Then they will hand you over to be persecuted and will kill you. You will be hated by all the nations because of my name. 10 Then many will be led into sin, and they will betray one another and hate one another. 11 And many false prophets will appear and deceive many, 12 and because lawlessness will increase so much, the love of many will grow cold. 13 But the person who endures to the end will be saved. 14 And this gospel of the kingdom will be preached throughout the whole inhabited earth as a testimony to all the nations, and then the end will come. 
And indeed, we see more and more headlines each day about the increasing persecution of Christians around the world. It is a consequence of the reach of our modern technologies that there are more Christians alive today than at any previous time in history. But it is also a consequence that as their numbers grow, so their persecutions grow.

Yet even more can be said. If what the Bible tells us about God's purpose for this age is accepted as true, then it follows logically and inevitably that the persecution of believers -- along with their deplorable apostasy and falling away -- must increase with time. Let me try to explain.

According to standard interpretation of "end-times" Biblical passages (the technical name for which is "eschatology"), this is the Age of the Gentiles, when God's word is commanded to go out into all the world of the non-Jews, so that "in the fullness of time" all nations may come to God.

Jesus tells a series of parables in Matthew chapter 13 to illustrate how the word of God will fare in these days:

He told them many things in parables, saying: “Listen! A sower went out to sow. And as he sowed, some seeds fell along the path, and the birds came and devoured them. Other seeds fell on rocky ground where they did not have much soil. They sprang up quickly because the soil was not deep. But when the sun came up, they were scorched, and because they did not have sufficient root, they withered. Other seeds fell among the thorns, and they grew up and choked them. But other seeds fell on good soil and produced grain, some a hundred times as much, some sixty, and some thirty. The one who has ears had better listen!” 

To his disciples, Jesus explains the meaning behind the story:

18 “So listen to the parable of the sower: 19 When anyone hears the word about the kingdom and does not understand it, the evil one comes and snatches what was sown in his heart; this is the seed sown along the path. 20 The seed sown on rocky ground is the person who hears the word and immediately receives it with joy. 21 But he has no root in himself and does not endure; when trouble or persecution comes because of the word, immediately he falls away. 22 The seed sown among thorns is the person who hears the word, but worldly cares and the seductiveness of wealth choke the word, so it produces nothing. 23 But as for the seed sown on good soil, this is the person who hears the word and understands. He bears fruit, yielding a hundred, sixty, or thirty times what was sown.” 
Then he immediately told them another parable, thus:
The Parable of the Weeds
24 He presented them with another parable: “The kingdom of heaven is like a person who sowed good seed in his field. 25 But while everyone was sleeping, an enemy came and sowed weeds among the wheat and went away. 26 When the plants sprouted and bore grain, then the weeds also appeared. 27 So the slaves of the owner came and said to him, ‘Sir, didn’t you sow good seed in your field? Then where did the weeds come from?’ 28 He said, ‘An enemy has done this.’ So the slaves replied, ‘Do you want us to go and gather them?’ 29 But he said, ‘No, since in gathering the weeds you may uproot the wheat with them. 30 Let both grow together until the harvest. At harvest time I will tell the reapers, “First collect the weeds and tie them in bundles to be burned, but then gather the wheat into my barn.” ’ ” 

These two parables illustrate what is happening in the world with God's Word today. The missionary efforts to spread it are greater than ever before, but the Enemy's efforts to see that it does not take hold, and to increase the number of weeds in the mix, are also increasing.

The results of this struggle may be expressed by a simple equation. If we let x stand for the cumulative total of all those who have heard God's Word, starting with the birth of the Church at Pentecost and continuing right up until yesterday (or the end of last month, or the end of last year); if we let y stand for the number of those who have been introduced to God's Word between that date and today; and if we let z express the portion of (x + y) who have for whatever reason become apostate, or who never accepted God's Word after hearing it, right up until today -- then we may consider the expression

+ y - z

and ask: is it growing larger, staying the same, or decreasing from one day (or month, or year) to the next? To answer this question, let's calculate the periodic increase in z from one date to the next, by subtracting the value of z at the end of the previous day (or month, or year) from its value today, and let us call that value Δz. 

The answer then turns upon which of the two quantities y and Δz is greater. So long as y -- the number of new converts since the end of the previous period -- remains greater than  Δz (the number who have been lost since the end of that period), the sum will keep getting larger, i.e., more and more people will be hearing God's Word. But when Δz starts to be constantly larger than y, that number will grow smaller than it was the day (or month, or year) before. And that should be cause for concern in heaven.

Why? In Romans 11:25-26, the apostle Paul tells us a key fact about the age of the Gentiles -- it is happening because of the temporary hardness that keeps Israel from absorbing the good news:
For I do not want you to be ignorant of this mysterybrothers and sistersso that you may not be conceited: A partial hardening has happened to Israel until the full number of the Gentiles has come in. And so all Israel will be savedas it is written:“The Deliverer will come out of Zion;he will remove ungodliness from Jacob.
"All Israel will be saved" -- but not until "the full number of Gentiles has come in." And once that has happened, Israel will be saved in this manner when the Deliverer comes out of Zion -- that is, when the Second Coming takes place.

The "full number of the Gentiles" may be expressed by the sum (+ y - z) given above. So long as the number is increasing, its "fullness" has not yet been reached. But for the Second Coming to take place, and for all Israel to be saved, that day must certainly come when the sum has reached its maximum -- and will never get any larger.

And what will have to happen for that sum to start getting smaller? Well, the number of apostates from the Word will have to be larger than the number of converts to the Word. And one way to increase the number of apostates (or, what comes to the same thing, to decrease the number of converts) is to persecute all those who hear God's word.

That is not the only way to make the number smaller, of course. It is also a truism that the more the missionaries do to spread God's Word, then the fewer peoples there will be to reach -- and increasingly so, with today's technologies. So at some point -- and who knows, we may already have reached it -- the total of the sum will start to increase by less and less each day, until finally it stops increasing, and starts growing smaller.

"No one knows the hour or the day" the end times will start -- not even the Son, but only the Father. We may not know just when the sum (+ y - z) will start to get smaller, because we do not know the exact numbers of its individual components, which change from day to day. But the Father knows them, and knows them exactly.

So as the persecution of Christians increases, it is a sign of the Enemy's putting Christians to the test, to see whether or not they will hold fast to the saving Word. But at the same time, it is a sign of the commencement of the end times, when there will be fewer and fewer left to be saved. As it is written in 2 Pet. 3:9 (with my emphasis added) --
The Lord is not slow concerning his promise, as some regard slownessbut is being patient toward youbecause he does not wish for any to perish but for all to come to repentance.
Deo sit gloria.

Wednesday, December 10, 2014

Decision in South Carolina Case Expected Soon

Today, at the request of Circuit Judge Diane Goodstein, both sides in the South Carolina case are submitting proposed forms of a final decision and order for her to sign. She will most likely use one of the two versions as a basis for her own written decision, which she could issue as early as next week.

The South Carolina decision, when it comes, will not be written on a blank slate. As a trial judge, Judge Goodstein is bound to follow and apply precedents of the South Carolina Supreme Court. In 2009 that Court handed down its decision in the case of All Saints Parish Waccamaw v. Protestant Episcopal Church in South Carolina, and thereby established that church property disputes in the State are to be decided under "neutral principles of law."

In the context of the present dispute, this means that the Court will base its final decision upon a close examination of the various deeds and other documents evidencing ownership and title, as well as the governing documents (constitution, canons, articles and bylaws) of the parishes, the Diocese, and of the Episcopal Church (USA) itself.

As to the ability of the Diocese to withdraw from ECUSA, it would seem that it has already been finally adjudicated (by the courts of Illinois) that there is no language in the Constitution or canons of ECUSA which would prevent a Diocese from withdrawing. That is also a decision drawn under neutral principles, and so is in harmony with the method shown in the All Saints Waccamaw case. I should think that Judge Goodstein will find the reasoning of those two cases both persuasive and binding upon her.

Resolution of that question will not, however, necessarily resolve the issue of property held in trust. Under the Waccamaw decision again, an express written trust of some kind will be required -- one that satisfies the Statute of Frauds under South Carolina law (it must be in writing, and signed by the actual owner of the person so placing the property into a trust). The Dennis Canon alone will not work -- that was one of the express holdings in the Waccamaw case which will be binding upon Judge Goodstein.

There was no evidence of any such trust document or documents offered at the trial, to my knowledge. Consequently, the decision on this point, while open, should not be a difficult one under neutral principles.

That leaves as a final question whether each parish duly followed South Carolina law and procedure in amending its articles and bylaws so as to remove any affiliation with ECUSA -- although I cannot see how it would be crucial, if the Court decides that the Diocese properly withdrew. It is the Dioceses, and not the individual parishes, that make up the actual membership of ECUSA itself.

A parish affiliates with ECUSA by virtue of being a member of an ECUSA Diocese, and when that Diocese withdraws, the parish's affiliation is thereby terminated as well -- as long as the parish chooses to stay a member of the withdrawing Diocese. Here the Diocese freely allowed its member parishes to choose which affiliation they wanted to keep, and did nothing to prevent the withdrawal of those that wanted to remain with ECUSA.

One hopes, therefore, that neutral principles will again show the logical way to resolve this unfortunate dispute, which was started when those who were allowed to remain Episcopalians decided, in league with ECUSA's leadership, that being allowed to retain their own properties was not enough -- they just had to have it all. (The Diocese sued ECUSA initially only to keep its own name and trademarks; it was ECUSA, and later its rump group, that broadened the suit so as to lay claim to all of the diocesan and parish real and personal property.)

Stay tuned -- we should know shortly what the Judge decides.

Thursday, December 4, 2014

A Church that Sues Itself Is a Church?

The highly litigious Episcopal Church in the United States of America ("ECUSA") has settled a lawsuit with itself, according to a press release from its rump group (which cannot legally be called a "diocese") in South Carolina.

Shall we run that one by our eyes again? ECUSA has settled a lawsuit which it brought against itself.

OK, technically I should say: one arm of ECUSA has agreed to take money from another arm of ECUSA in settlement of a dispute the two arms had with each other, and that went to court. Is that clearer?

No? My, but you are being picky. Let me try one more time, in a bit more detail.

ECUSA is this epiphenomenon that is rather like the village of Brigadoon. One day or so you suddenly see it (if you're lucky enough), and then for a very long time, you don't. It arises (when it does), not out of its own doings, but of those of its constituent members.

Oh, you may think you see ECUSA far oftener than that, for if you follow lawsuits, ECUSA is perpetually in the news. Every time you see or hear of ECUSA in that sense, it is as the plaintiff in yet another lawsuit against one of its own churches, or dioceses.

But the ECUSA who files suit as a "plaintiff" is not the real ECUSA that the Rev. Dr. William White and others formed in 1789. It is simply the Presiding Bishop and her personal attorneys.

Apparently, they have allowed matters to get out of hand -- to the point where this Anglican Curmudgeon must duly report that one arm of ECUSA has agreed to pay money to another arm of ECUSA so that the two arms can dismiss the lawsuits they filed against each other.

Enough about "arms": let us name names. One branch of ECUSA involved in this imbroglio is what ECUSA was forced by the South Carolina courts to call "the Episcopal Church in South Carolina", or ECSC for short.

ECSC has quite a speckled history. Thanks to the machinations of the Presiding Bishop and her enablers, it came into formal existence only at the end of January in 2013 -- but its roots go back much farther than that, as I detailed in this earlier post, in this one, and in this one.

It was formally organized in January 2013 out of the bits and pieces that wanted the Diocese of South Carolina to go the way of General Convention 2012. That would have meant authorizing same-sex partnered clergy and bishops, same-sex marriage blessings and church ceremonies, and all the miasma that ensues from such endless appeasing of the current culture.

As is their wont, the progressive minority who wanted to have everything their way ignored the rules, and took the law into their own hands. They sent out emails purporting to come from the diocesan office; they appropriated the diocesan name and corporate seal; they erected a Web site that purported to be the official site of the Diocese of South Carolina.  They acted as though they had already triumphed over the vast majority that refused to accede to their Kultur-driven agenda, and that instead (under their faithful Bishop) resolved to hold fast to the faith once delivered to the saints.

As a consequence of the minority's lawlessness, Bishop Lawrence and his corporate diocese brought suit against them to halt their misappropriations of his seal and the diocesan name and trademarks. And lo and behold! They capitulated almost at once, and agreed to an injunction against their further misbehavior.

But they were still the defendants in a suit against them alleging that they had engaged in wrongful behavior. So like any good Episcopalians, they tendered the defense of that lawsuit to the Church Insurance Company of Vermont. That insurer is one of the Church Insurance Companies set up by the Church Pension Fund of the Episcopal Church (USA) to provide low-cost liability and other forms of insurance to Episcopal parishes and dioceses.
Wait -- "dioceses", you say? But I thought you said earlier that the rump group could not qualify as the Diocese of South Carolina under South Carolina law -- so how did they qualify to be a diocese of ECUSA for purposes of the Church Insurance Company's policy?
Simple -- the Presiding Bishop headed up the rump group's organizing convention in South Carolina. Her attorneys, the Executive Council and the Church Insurance Companies could, after that, scarcely fail to recognize the rump group as a full-fledged "diocese" within ECUSA, and so it was. And as a full-fledged Episcopal "diocese", it got its liability insurance policy, and paid its premiums.

The money went to the Church Insurance Companies, but that is really an outfit which (like its parent, the Church Pension Fund) depends for its existence upon ECUSA and its parishes that are its customers. Any "profits" (the excess of premiums paid in over expenses, including monies paid out to satisfy judgments and settlements) earned by the insurance company stay within the larger Pension Fund, and contribute to the ability of that Fund to pay benefits to retired Episcopal clergy.

Now one of the coverages provided under the Church Insurance Companies' general liability policy is  described in their booklet as follows (scroll down to page 12):
Advertising Injury Liability  
Exposure: Liability for plagiarism or piracy of one’s copyright or trademark  
Example: Another business claims that the policyholder’s logo is confusingly similar to its own.
Notice the wording of that example? "Another business" -- in ECUSA TECSpeak™, that would mean what we lay people call "another church" -- "claims that the policyholder's logo" -- that would be the seal used by the rump group -- "is confusingly similar to its own."

"Confusingly similar"?  How about identical? As in, "You stole that from us!"

So the Church Insurance Company liability policy obtained by the rump group had coverage for the particular injury which the plaintiff Diocese of South Carolina claimed the rump group had done to it. The rump group promptly filed suit against its insurers in the federal district court for the District of South Carolina.

The Insurance Company argued that it was not liable to cover willful acts of trade mark infringement, and that under South Carolina's laws, acts of infringement had to be willful to generate liability.   However, the federal judge ruled that liability could be established under South Carolina law for unintentional conduct that amounted to trademark infringement, and so held that the Insurance Company had to pay for the rump group's defense (up to the policy limits of $1 million).

The rump group sued the insurer not only to force it to provide a defense, but also sued it for bad faith denial of coverage -- which claim, if proved, could lead to substantial damages in excess of the policy limits, and based on the entire net worth of the insurance company! The court ruled that it did not have enough evidence before it to rule on that claim, and left it for a future trial.

But stop and think for a moment: in the world of ECUSA, it is nothing for one arm of the Church to sue another arm of the same Church, and claim that it is a victim of bad-faith dealings by its fellow member -- entitling it to wipe out that member's entire net worth! I suppose that all the vestries and rectors whom ECUSA has sued personally for punitive damages and bad faith should take some small amount of consolation from the realization that for ECUSA, it's nothing personal, and nothing that ECUSA wouldn't hesitate to use against its own.

What a Church! What a Christian example to fellow Christians!

And now we learn that the lawsuit by ECUSA against itself has settled -- for the payment of an undisclosed amount of money. Well, that certainly must come as a relief to ECUSA's pensioned clergy, who otherwise might fear that ECUSA's ever-increasing lawsuits would end up preventing the Pension Fund from being able to fund their pensions. At least they have one less such suit about which to worry -- even though they don't know (and will never be told) how much it cost them.

What else is left for ECUSA's clergy to say, in the face of such mind-boggling, imperially-sponsored carnage at the peons' expense?

Ave imperator, morituri te salutant. 

Thursday, November 27, 2014

A Thanksgiving to God, for His House

Lord, Thou hast given me a cell
Wherein to dwell,
A little house, whose humble roof
Is weather-proof:
Under the spars of which I lie
Both soft, and dry;
Where Thou my chamber for to ward
Hast set a guard
Of harmless thoughts, to watch and keep
Me, while I sleep.
Low is my porch, as is my fate,
Both void of state;
And yet the threshold of my door
Is worn by th' poor,
Who thither come and freely get
Good words, or meat.
Like as my parlour, so my hall
And kitchen's small;
A little buttery, and therein
A little bin,
Which keeps my little loaf of bread
Unchipp'd, unflead;*
Some brittle sticks of thorn or briar
Make me a fire,
Close by whose living coal I sit,
And glow like it.
Lord, I confess too, when I dine,
The pulse§ is Thine,
And all those other bits, that be
There plac'd by Thee;
The worts, the purslain, and the mess
Of water-cress,
Which of Thy kindness Thou hast sent;
And my content
Makes those, and my beloved beet,
To be more sweet.
'Tis Thou that crown'st my glittering hearth
With guiltless mirth;
And giv'st me wassail-bowls to drink,
Spic'd to the brink.
Lord, 'tis Thy plenty-dropping hand
That soils my land;
And giv'st me, for my bushel sown,
Twice ten for one;
Thou mak'st my teeming hen to lay
Her egg each day;
Besides my healthful ewes to bear
Me twins each year;
The while the conduits of my kine
Run cream, for wine.
All these, and better, Thou dost send
Me, to this end,
That I should render, for my part,
A thankful heart,
Which, fir'd with incense, I resign,
As wholly Thine;
But the acceptance, that must be,
My Christ, by Thee.

--Robert Herrick (1591-1674)

 *Unchipp'd = "intact", i.e., no part of the loaf broken or crumbled off; unflead = "unflayed", i.e., no crust peeled off or inner part laid bare.

§ pulse = beans, peas, etc.; worts = root vegetables or herbs.

A blessed and happy Thanksgiving to all: in Jesus' name we pray. Amen.

Wednesday, November 26, 2014

ECUSA Denied Leave to Appeal in Quincy Case

Today the Illinois Supreme Court posted twenty-eight pages of its recent dispositions of requests made by losing parties for leave to appeal their decision to that Court. On page twelve, at the very top, appears this brief notation:
No. 118186 - The Diocese of Quincy et al., respondents, v. The Episcopal Church et al., petitioners. Leave to appeal, Appellate Court, Fourth District. (4-13-0901)

Petition for leave to appeal denied.
What this means is that the highest court of a State has now ruled that there is no provision in the governing documents of the Episcopal Church (USA) that keeps a Diocese from withdrawing its membership in that organization. The Church in fact is an unincorporated association of dioceses fashioned under American common law, and not under the laws of any one given State. Under the First Amendment, members of such associations are free to leave the group at any time, with only reasonable restrictions placed on their ability to do so (they could be required to pay any back dues still owed, for example). The opinion delivered last April by the Illinois Fourth District Court of Appeal stands as written.

ECUSA's options are now very limited. They could ask the Illinois Supreme Court to rehear their request -- a move that has never been known to be successful among the Illinois attorneys to whom I have talked. And they have 90 days within which to file a petition for certiorari (review) with the United States Supreme Court -- which thus far has turned down every other recent petition in the various church property cases.

Moreover, the Diocese of Chicago was never admitted to the case as the successor to the remnant Diocese of Quincy that merged into it a year ago September. So there is a procedural difficulty to ECUSA's taking the case further: it no longer has a diocese as a co-party which it can misleadingly try to put forward as "the real Diocese of Quincy." And if no diocese is a party, who is left to complain that the departure of the Anglican Diocese was null and void, because the "real one" is right here? Just ECUSA, which itself is not a diocese, but an association of dioceses -- and it already has lost that argument in two Illinois courts. 

Meanwhile, however, the decision will come as a very useful precedent for the courts in the other pending diocesan withdrawal cases -- which present a unique question that the Illinois court is now the first to have definitively decided. Watch for the withdrawing dioceses to cite the case to the courts in Texas (Ft. Worth), California (San Joaquin) and South Carolina.

Thursday, November 20, 2014

Cicero and Buckley to the Rescue

Blogging has had to take a back seat to the law, which (as they say truly) is a jealous mistress.

Nevertheless, there has not been all that much I care to blog about. The news is almost uniformly desultory, uninspiring and (dare I say) lacking in hope. The lawlessness at the very top has infected our institutions and governments down to the lowest level -- and they all seem to be getting away with it! What is the point of complaining if the checks and balances we used to be able to rely upon are out of order and dysfunctional?

[UPDATE 11/21/2014: Birds of a feather ....]

A few bright rays emerge from the Mordor-like fog. Ted Cruz quotes Cicero on the floor of the Senate, indicting Barack Obama as Marcus Tullius once long ago did Catiline. And former Senator and retired federal judge James Buckley has a new book forthcoming, that promises a straightforward way out of a lot of the mess. Called Saving Congress from Itself, its recipe is simple: put an end to every kind of transfer payment from Congress to the States. You may preorder it here (or get the Kindle version if you would like to start reading it now), and read more about it here.

May God save the United States of America.

Monday, November 3, 2014

SCOTUS Denies ECUSA's Bid for Review of Ft. Worth and San Angelo Decisions

Today the Supreme Court of the United States issued its order denying (without opinion) review ("certiorari") of the decisions rendered last September by the Supreme Court of Texas in the Fort Worth and San Angelo cases.

The order was expected, because neither decision by the Texas Supreme Court was final. The U. S. Supreme Court almost never agrees to review lower court decisions until they are final. In these two cases, the Fort Worth matter was sent back to Judge Chupp's court for a trial, and the Church of the Good Shepherd case was likewise sent back to the trial court in San Angelo for further proceedings.

The action by SCOTUS now frees both of those cases to move ahead.

In Fort Worth, Bishop Iker's attorneys have filed a motion for summary judgment which is scheduled for a hearing in December. Given the decision by the Texas Supreme Court, the only question remaining for the trial court to decide is whether or not ECUSA managed to create a valid trust in the Diocese's property which the Diocese did not revoke when it decided to withdraw in 2008. In Texas all trusts are deemed to be fully revocable at any time, unless the language creating the trust states otherwise.

ECUSA earlier claimed that its Dennis Canon imposed a trust upon each parish property whose title was held by Bishop Iker's corporate Diocese of Fort Worth, as well as on the Diocese's own property. But the Texas Supreme Court ruled that any Dennis Canon trust was not expressly irrevocable, and so the withdrawal of the Diocese and its associated parishes from the Episcopal Church (USA) effectively revoked any such trust.

Given that ruling, therefore, the outcome of Bishop Iker's summary judgment motion should be a foregone conclusion: there are simply no disputed facts requiring a trial. ECUSA did not ever try to impose an irrevocable trust in so many words, and its arguments that irrevocability was implied in its Dennis Canon, or alternatively in its long-standing relationships with its dioceses, will not meet the requirements of Texas' trust statute.

Once the Texas District Court grants summary judgment, the rump Diocese and ECUSA will of course be able to appeal, and could try again to raise the same grounds they urged before SCOTUS -- only now with a final judgment behind them. But the odds of succeeding with any such appeal will be long indeed, given that the U.S. Supreme Court has now rejected petitions for review in four recent cases (Connecticut, Georgia, Virginia, and Texas).

The same result should obtain in the Good Shepherd case from San Angelo, involving the Diocese of Northwest Texas. That parish effectively revoked any trust established by ECUSA's Dennis Canon when it decided to withdraw from the Diocese, and there is no evidence of any other irrevocable trust ever imposed on its property.

In front of SCOTUS, ECUSA and the Diocese of Northwest Texas tried to argue that the Texas Supreme Court's decisions, which adopted the "neutral principles" approach endorsed in the 1979 decision of Jones v. Wolf, caught them by surprise. However, it has been 35 years since Jones v. Wolf was decided, and the overwhelming majority of State courts now follow that case in deciding religious property disputes.

ECUSA's petition also mounted a frontal attack on the (5-4) Jones decision and its endorsement of the "neutral principles" approach. The national Church contended that the sanctioning of that approach, by which the courts do not simply defer to its authority, but actually dig down and examine deeds, chains of title, and governing documents and rules, interfered with its "free exercise" of its religion under the First Amendment. (As though, one notes, the holding of property and wealth could ever be a religion -- nevertheless, if there were ever any American church to profess such a religion, it would certainly be ECUSA.)

Neither argument -- the attack on Jones, or the one from surprise -- carries much weight, and neither  persuaded the justices of SCOTUS (even though ECUSA had seen fit to hire a former U.S. Solicitor General, Neal Katyal, to write its petition to the Court). Intermediate Texas courts -- if not the Texas Supreme Court itself -- had been applying "neutral principles" for quite some time. Moreover, ECUSA itself admittedly tried to implement the Jones v. Wolf scheme by hurriedly enacting its Dennis Canon within just a month or so of the decision. So its claim to have been taken by surprise rang rather hollow. And in passing its Dennis Canon, it neglected to include the language which Texas law requires about irrevocability (as well as ignoring certain other points in the Jones majority opinion -- see this post for details).

While we await the decision of the Illinois Supreme Court as to whether it will agree to review the Diocese of Quincy decision, it could happen, therefore, that Texas will become the first State after South Carolina to make the Dennis Canon absolutely a dead letter there. The trial judge in South Carolina is also due to render a decision in a few weeks -- which will not turn upon the Dennis Canon as much as it will involve issues of religious corporation law.

I will, as always, provide you with commentary and analysis as soon as any of these other proceedings are decided. On a side note: this Wednesday the Justices of SCOTUS will hear oral arguments in this unusual fish tale of a case. Stay tuned.

Thursday, October 23, 2014

Thoughts on Listening to Peter Schiff

Peter Schiff spoke today at a conference I am attending. I have heard him before, and also have read his recent book, so it is not as though he said anything that startled me -- but he did get me thinking.

His main point was simple: the Fed has a tiger by the tail, and cannot let it loose without disastrous consequences for America and for the world. The Fed has reached this point because it unwisely chose, back in 2008, to use its power to print money out of thin air to prevent the collapse and bankruptcy of America's biggest financial institutions.

The Fed bailed out those institutions by purchasing their worthless mortgage-backed securities and other derivative instruments. This put worthless paper on the asset side of the Fed's balance sheet, but allowed the financial institutions to show actual Federal Reserve notes as assets in that paper's place. The Fed could withstand the deterioration of its balance sheet because it is the Fed -- with an unlimited checking account, it literally can never go broke, no matter how worthless are its assets.

From buying worthless paper to buying Treasury bills and notes was a simple next step, once the Government started spending more money on bailouts than it was taking in from taxpayers. The Fed's then President, Ben Bernanke, called this "quantitative easing", or "QE" for short, but in reality that was just a circumlocution for "printing money." When the Fed buys T-bills directly from the Treasury (instead of going through the usual bond brokers), for example, here's how it works.

Every week, the Treasury auctions off a mixture of bills, notes and bonds (bills are short-term, bonds are long-term, and notes are in between) to meet the cash flow needs of the U.S. government. Normally what the Treasury has to offer is picked up by the bond market and by foreign governments (central banks) wishing to acquire dollar reserves.

But when the government runs a huge deficit, as it has during the latter Bush years and all of Obama's first and second terms, the Fed can step into the bond market to buy up any bills, notes or bonds that are not sold to dealers or central banks. By doing so, the Fed ensures that interest rates on the Treasury's borrowings remain stable in accordance with their maturity dates. (If, for example, the Treasury could not find a buyer for all of its long-term bonds at its offered rate of interest, it would have to raise the interest rate to find more buyers. But if the Fed steps in and buys what's left first, the Treasury does not have to offer higher rates -- it just pays the Fed the same rate it pays all the other buyers).

When the Fed buys, say, bonds from the U.S. Treasury, it simply credits the Treasury with cash from its bottomless checking account, and takes possession of the bonds. When the Treasury later buys back those bonds at maturity, as it must for every bond it issues, it has to pay the face amount of the bond plus the interest at the bond's stated rate. And to do so, it needs the required amount of cash in its accounts.

Now, think a minute: if the Fed buys $1 billion worth of 30-year bonds at 3% (say) interest per year, the Treasury is credited with $1 billion when it first sells them. But then it is has to pay the Fed $30 million each year in interest, for 30 years -- or a total of $900 million (almost as much as it borrowed in the first place). And when the bonds mature, it has to come up with another $1 billion to pay off the principal.

So by selling $1 billion of bonds to the Fed, the Treasury commits its budget to come up with a total of $1.9 billion over the next thirty years. And so it goes, week after week. As Sen Everett Dirksen once famously noted: "A billion here, a billion there, and pretty soon you're talking real money."

Now, here's the wrinkle: all interest the Treasury pays to the Fed gets turned over, at the end of each year to: (you guessed it) the Treasury! (The Fed simply deducts what it needs to erect and maintain all of its splendid marble buildings, and to pay all of its officers and staff the very best salaries and benefits.)

So it is not quite a merry-go-round, because of the Fed's needs for money to operate. Out of the $1.9 billion the Treasury pays to the Fed in my example, $1 billion (the principal) is a wash, and the Treasury might net, say, $870 million out of its original $900 million paid in interest. The figures don't matter as much as the fact: the Treasury still, after everything is said and done, has to come up with new money in order to clear its books with the Fed.

By using "quantitative easing" to help out the Treasury, therefore, the Fed is really simply delaying the ultimate day of reckoning. For if the Treasury did not have the Fed buying those bonds from it, it would have had to come up with a full $1.9 billion to pay them at maturity, instead of being able to use what the Fed returns to it each year.

The same result occurs in the end, however. As long as anyone keeps buying bills, notes and bonds from the Treasury, the Treasury has to come up with more cash to pay back the principal plus the stated interest.

The Fed's QE to date has kept the interest rates the Treasury has to pay artificially low, because the Fed always buys whatever bonds are left without demanding higher rates. But how long can the game continue?

And that is just what Peter Schiff points out. The Fed has thus far "phased out" QE three times. Each time, it said (at first) that there would be no more QE, but then as interest rates began to threaten to rise, and the stock market threatened to panic, the Fed would step in again and announce "another round" of quantitative easing. Thus we have had QE#1, QE#2 and QE#3 so far. The Fed is now almost done with the process of phasing out QE#3, as it has been buying less and less bonds each passing month.

And how has the stock market taken this? Exactly as it always has -- with panic drops and uncertain swings because of the inability to predict how high interest rates will have to rise for the Treasury to sell all of its bonds without the Fed being the buyer of last resort. And if bond interest rates rise, the stock market will really plummet.

Moreover, if interest rates rise, the Treasury will have to come up with ever more and more cash to pay the interest on each new bill, note or bond it issues. Since it cannot print money itself, the Treasury has to go into the market to borrow that extra cash. And the more it has to borrow, the more the interest rates will rise -- it is a vicious cycle.

Mr. Schiff therefore predicts the Fed will soon be forced to announce QE#4. Most agree with him, because the alternative is to let the Government default on its debt, which would lead to institutional and commercial failures of all kinds, all around the world.

But QE#4 will at best be a temporary solution. How long will the Fed be able to continue to tell gullible markets that each new phase of quantitative easing will be only "temporary"? The fact is that, having started down the QE road, the Fed cannot reverse course permanently without disastrous consequences for everyone.

And once the Fed's game is seen to be what it is -- the repeated printing of paper money with nothing to back it except the promise to print more paper money as needed -- the notion of inflation will begin to get a toehold on the economy. Would you accept the promise to be paid in a year with paper that will be worth less than what you turn over to your borrower today? Not without demanding a suitably high rate of interest, you wouldn't. And so the Fed's policies inevitably will lead to a war between the demand for more interest to compensate for the shrinking value of paper money caused by the printing of ever more and more paper money to pay that interest.

This is all so simple, yet very few financial advisers are talking about it besides Peter Schiff. The process embarked upon by the Fed can lead to no good, no matter how things turn out. The government must stop borrowing what it can never pay back, or else it must either default on that debt (which will lead to massive deflation on a scale never before seen), or it must print so much worthless paper that hyperinflation ensues.

The choice between hyperinflation and super-deflation is truly a Hobson's choice, but that is where the government's policies, and the Fed's willingness to abet them, have led us. Of course, if a new world war breaks out, then all bets are off until after it is over -- but who wants the devastation of a world war just to postpone the inevitable devastation of hyperinflation or super-deflation?

This may not be original with him, but Peter Schiff has a striking analogy to portray what the Fed is now doing. "It's as though," he says, "a pilot were to take credit for successfully getting a plane from A to B without being able to land it. He has all sorts of excuses for why he can't land: the weather is bad, the airport isn't properly equipped, the plane's instruments aren't working right. But the truth is he does not know how to land the plane -- he just knows how to make excuses. And eventually the plane is going to run out of fuel -- and crash."

The Fed is that pilot, and we are all passengers on the plane. Better start praying for a miracle, because neither the Fed nor the current government has a clue as to how to get out of this predicament. They know only how to keep doing what got us to this point in the first place. And they keep doing it, and keep doing it ...

(Readers who would like more background as to how we got here may want to read the series of posts linked at this page.)

Monday, October 6, 2014

Scalia's Prophecy Fulfilled (Sub Silentio)

Sub silentio (literally, "under [the cloak of] silence") is a legal term of art for the technique of a court that, say, wants to accomplish something like the overruling of an earlier case -- without having to admit in express words what it is doing. For whatever political or collegial considerations prevail at the moment, the court finds it more "convenient" to stop short of saying what it is doing, while doing it nonetheless. Then, either a few (or even many) years later, the court can "discover", say, that the case of W. vs. X was in fact overruled, sub silentio, by the case of Y vs. Z.

Courts also understandably shy away from overturning their own prior decisions. As Justices O'Connor, Kennedy and Souter noted in declining to overrule Roe v. Wade in the later case of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), “Liberty finds no refuge in a jurisprudence of doubt.”

Today the United States Supreme Court in effect overruled, without saying so, its earlier holdings in which it expressly declined to declare that homosexuals enjoyed a "fundamental right" to practice their lifestyle without State interference. And the most remarkable thing is that it did so sub silentio, without even issuing any written opinion!

The Court accomplished this astonishing feat by the simple tactic of exercising its power to review lower court decisions. It denied review of decisions by three different Circuit Courts of Appeal striking down bans on same-sex marriages in the states of Indiana, Oklahoma, Utah, Virginia (three cases) and Wisconsin. Those seven decisions are now final, and mean that the same courts could in the future strike down similar laws in six other States within their jurisdictions: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming.

Moreover, a decision striking down bans on same-sex marriage in Idaho and Nevada is expected soon from the very liberal Ninth Circuit Court of Appeals in San Francisco, with jurisdiction over seven more States than those two. Cases that could be affected by that ruling are currently pending in the lower courts of Alaska, Arizona and Montana.

Before today's denials of review, the Court had uniformly struck down refusals by the lower courts to stay the effect of their decisions (and thus begin the process of marrying same-sex couples before those decisions became final). But now that those decisions are made final, by the Court's refusal to review them, the couples in the States affected by the rulings will begin marrying as soon as next Monday.

So by refusing to exercise its powers of review, the Court has in effect given a green light to same-sex marriage in as many as thirty States, with more sure to follow. And all of this without a single uniform ruling that same-sex marriage is a "fundamental right" under the Constitution!

Previously the Court had held that State statutes having a discriminatory effect against a class of people could be upheld if there was any "rational basis" for the discrimination -- unless the case involved a "fundamental right", in which instance the statute would be subjected to a higher standard of review, called "strict scrutiny." In Roe v. Wade, for example, the Court struck down an anti-abortion statute on the ground that the right to abort an unborn child was "fundamental" under the Constitution.

But after today's (in)action, that is a distinction without a difference. In its 2003 decision in Lawrence v. Texas, striking down a Texas criminal statute outlawing acts of sodomy between people of the same sex, the majority went out of its way to declare that it was not finding a "fundamental right" to engage in sodomy. Rather, it struck down the statute on the ground that the only basis for the provision was in a moral or religious code. States could not enact penal laws on such a basis, it declared, without infringing on "a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." (My bold emphasis added.)

As Justice Scalia pointed out in a stinging and prophetic dissent, this rationale had no limits at all:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 2480 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge [i.e., the petitioners' challenge that the anti-sodomy law involved in that case had no rational basis to support it]. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196, 106 S.Ct. 2841. 

(Lawrence v. Texas (2003) 539 U.S. 558, 590 [123 S.Ct. 2472, 2490, 156 L.Ed.2d 508] [footnote omitted].)

Justice Scalia called it exactly, right down to today's (in)action. The sequence of rulings from the Supreme Court is thus as follows:

1. Bowers v. Hardwick (1986) 478 U.S. 186 [106 S.Ct. 2841, 92 L.Ed.2d 140]: Georgia's anti-sodomy statute did not violate the "fundamental rights" of homosexuals. Justices in the majority: White, Burger (C.J.), Powell, Rehnquist and O'Connor; Justices dissenting: Blackmun, Brennan, Marshall and Stevens.

2. Lawrence v. Texas (2003) 539 U.S. 558 [123 S.Ct. 2472, 156 L.Ed.2d 508]: While not deciding that homosexuals had any "fundamental Constitutional right" to engage in sodomy, the Court held that States could not penalize such acts without interfering with the essential liberty of individuals to make lifestyle choices. Justices in the majority: Kennedy, Stevens, Souter, Ginsburg and Breyer (O'Connor concurred in the judgment); Justices dissenting: Rehnquist (C.J.), Scalia, and Thomas.

3. United States v. Windsor (2013) __ U.S. ___ [133 S.Ct. 2675, 186 L.Ed.2d 808]: While not deciding that same-sex marriage is a "fundamental right deeply rooted in this Nation's history and tradition," Congress' singling out of only heterosexual marriage for federal recognition unconstitutionally deprives same-sex couples recognized by their own State of their liberty under the Fifth Amendment. Justices in the majority: Kennedy, Ginsburg, Breyer, Sotomayor and Kagan; Justices dissenting: Roberts (C.J.), Scalia, Thomas and Alito.

It will be evident at once that Justice Kennedy has been instrumental in shifting the Court's gay-rights jurisprudence from the narrow necessity of first finding that such rights are "fundamental" (in order to make laws discriminating against them subject to strict scrutiny) to the far broader, less stringent  requirement that State and federal laws may not unduly infringe upon the liberty of individuals to lead the lifestyles of their choice. Each time, he attracted the Court's liberal majority to support him in that shift.

At the same time, it should be evident, in light of today's orders refusing review of any of the decisions striking down same-sex-marriage bans below, that at least one Justice on the so-called conservative side had to vote with the liberals and Justice Kennedy to deny review. The reason for that statement is that it takes the vote of just four Justices to accept a case for review, and there were four dissenting justices in Windsor who are all still on the Court today. (I speak of the "so-called" conservative side because it is becoming increasingly questionable whether the Chief Justice may still be counted among their number.)

[UPDATE 10/06/2012: For a slightly different take on what could have occurred behind the Court's sealed doors -- and especially detailing the switch in viewpoint that had to occur for Justice Kennedy -- see this post from law professor Josh Blackman (blog linked under "Juricannon" at the right).]

Before today's orders were issued, Justice Ginsburg had expressed the view in public that the same-sex marriage rulings were not yet ripe for review, as there were not yet any decisions by the Courts of Appeal that upheld a State's ban on same-sex marriages. The Court usually likes to step in only to resolve conflicts between the Courts of Appeal, and here there were none (yet). Could this viewpoint have swayed any of the four conservatives? I doubt it very much.

At the same time, if those same four Justices could read the tea leaves displayed by the prior decisions in Lawrence and Windsor, then it should have been obvious that accepting review of any of the seven cases below would have led only to another Kennedy majority opinion finding that bans on same-sex marriage infringe unconstitutionally upon individual liberties. Thus by declining review at this time, the door could be left open for a different Court at a later day to return, perhaps, to the rational basis jurisprudence that prevailed pre-Lawrence.

And given the results expected in the upcoming midterm elections, such a calculating minority Justice (or two) might well entertain the hope that the elections would stymie President Obama's ability to appoint any more Justices for the remainder of his term -- leaving open the possibility that 2016 could see the election of a Republican president with a Republican majority in the Senate.

Cynical? You bet. Calculating? Certainly. For the calculus says nothing about what will happen to all of the same-sex marriages that will be contracted in many States between next Monday and whenever there is again a conservative majority on the Court. Presumably their validity would be a fait accompli, and seen as the temporary price to be paid for a longer-term uniformity in the law.

But is that any worse than the cynicism and calculated strategies of those who are currently employing the lower federal courts to gain what they could not gain at the ballot box?

I say we are all the worse off for the sheer, unprincipled politics that now govern federal jurisprudence on issues that were traditionally left to the individual States to decide. When the courts read the newspapers rather than their own precedents, we are indeed at the point where liberty can find no refuge in a jurisprudence of doubt or politics.

Wednesday, October 1, 2014

Clash of the Canons and Civil Law at GTS

The recent meltdown at the country's oldest theological seminary (and the only Episcopal seminary under the direct supervision of ECUSA) puts to the test some of the canonical abuses and litigation strategy implemented in the last few years by the Church's leadership at 815 Second Avenue. Eight of the ten full-time faculty employed by General Theological Seminary declared in a September 17 letter to the Board of Trustees that due to the "hostile work environment" created by the Seminary's Dean and President, the Very Rev. Kurt H. Dunkle, they were unable to continue to work under him.

The phrase "hostile work environment" is drawn from the well-developed body of labor law enforced in the United States by the National Labor Relations Board. However, ever since a decision by the United States Supreme Court in 1979, the NLRB's jurisdiction has been held not to extend to religious schools and their faculties (including lay faculty), due to concerns over entanglement with religious rights under the First Amendment. Just as with all the recent Church property disputes, ECUSA has been at the forefront of insisting that the civil courts must defer to it in all civil litigation involving its religious affairs, governance and operations.

Nevertheless, the eight employees have announced that they have formed a union, and want the Seminary to negotiate their demands with their authorized representatives. (Scroll down to the letter of September 25, second page.) Those demands are five in number:
1. The immediate appointment of a committee of Board members, to be determined by the faculty, to meet with us to discuss conditions necessary for moving forward as an institution during the October meeting of the Board of Trustees.

2. That action be taken to empower the faculty with immediate oversight over the curriculum, schedule, worship, and overall program of formation for the seminary. This should also involve the appointment of a faculty council who will implement a pattern of worship consistent with the Book of Common Prayer (1979).

3. Identification and retention of a qualified person, external to the institution, to offer pastoral support to staff, students, and faculty during this period of transition and acute stress. We also seek the appointment of a Dean of Students who can ensure that the ongoing spiritual and pastoral concerns are being adequately met and their voices heard.

4. Steps be immediately taken to restore and ensure that the faculty members be afforded due process in connection with all appointments, worship and formation, and the implementation of our curriculum. The Academic Dean should be empowered with the authority necessary to implement properly the academic program, consistent with the standards of the Association of Theological Schools (ATS) and our own recent Declaration of the Way of Wisdom.

5. Retention of a qualified fundraiser to begin a capital campaign to rebuild the seminary’s endowment and meet the operational costs of the seminary.
The Board has thus far resisted acceding to any of the faculty's demands (one Board member wrote on her Facebook page that while Nos. 3 and 5 were "not bad ideas," the rest were "impossible").
Instead, apparently under the guidance of its Chair, the resigned (retired) Rt. Rev. Mark Sisk, and of Dean Dunkle, the Board issued a statement to the effect that it had voted "with great regret" to accept the resignations of the eight faculty members.

In doing so, the Board took a leaf from the book at 815, where the Presiding Bishop has unilaterally rid herself of pesky dissident bishops by abusing the renunciation of vows canon. She will take any form of written or oral statement expressing disagreement with her jurisdiction as the required written declaration of "an intention to be released and removed from the ordained Ministry of this Church and from the obligations attendant thereto" (Canon III.12.7 [a]) -- regardless of what the bishop in question says to the contrary.

No one, however, is talking at GTS of renunciation of orders -- but only of resignation from a full-time faculty position. Nevertheless, the same contract principles should apply: one cannot read a resignation into a demand that the Board redress what has become a hostile workplace, and a refusal to continue to perform assigned duties until the Board acknowledges the problem and begins to address it.

In other words, the argument that the faculty members have breached their respective contracts to teach classes at GTS is unavailable in these circumstances, because no one can be required to work in a hostile environment, and the environment is the Dean's (and ultimately the Board's) responsibility. If the faculty is correct in their charges, the first breach occurred on the part of the Dean, and unless the Board cures the problem, it will be complicit in that same breach -- thereby excusing performance on the part of the faculty while the breach continues.

And what has the Board done in response to the faculty's demands? It called upon the pro bono services of one of New York's largest law firms, Covington & Burling, to make a formal investigation into the charges made against Dean Dunkle, and declared it would take no further steps until that investigation was completed. As of yesterday, the law firm was interviewing in its offices each faculty member separately to gather evidence for its report to the Board.

But the Board has not suspended Dean Dunkle, or otherwise relieved him of responsibility, pending the outcome of the investigation. So the ultimate right of the faculty to go on strike will first depend upon whether the Board finds their charges were justified.

The charges are described generally in the second through the fifth paragraphs of the faculty members' letter of September 17. For the most part they amount to saying that Dean Dunkle seems incapable of acting with sensitivity toward Asians, women, African-Americans, and gays, and that as a consequence he offends and intimidates both faculty and students alike. In other words, this is a quintessential clash between Episcopal authoritarianism and Episcopal liberalism.

Declaring that the September 17 letter amounted to a letter of resignation was an authoritarian act. And to that extent, it harks back to the authoritarian manner in which ECUSA's Presiding Bishop has chosen to deal with those bishops and clergy who openly disagree with her, and with what she sees as ECUSA's priorities.

There is another Canon to which the GTS Board may be turning to justify its authoritarian action -- and if so, it would once again be imitating the litigation strategy of 815 against departing parishes. Canon I.17.8 (in a section that deals with laity in the Church) provides:
Any person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised.
In cases where vestries have voted to withdraw their parish from an Episcopal Diocese, ECUSA and its attorneys have always invoked this Canon, and argued that by the very act of voting to withdraw, the individual vestry members had disqualified themselves from further service on the vestry. A number of civil courts in California and elsewhere have upheld that argument -- turning the Canon into a sort of "ejector seat" mechanism.

(The question of how a vestry position for a local parish is "an office in this Church" has never stopped 815 from applying the Canon -- and so the issue of whether a faculty position at GTS is likewise such an "office" will no doubt not detain those who want to contend that the faculty have in effect resigned their positions. Moreover, since the faculty positions are arguably all lay positions within GTS, then the Board would circumvent the issue that four of the faculty happen to be ordained clergy, and so not subject to Canon I.17.8.)

The Church's Canons, however, run in both directions. As an ordained Episcopal priest, Dean Dunkle is subject to the disciplinary canons. He is canonically resident in the Diocese of Florida (where, fittingly enough, he served as Bishop Howard's point man in litigating against departing parishes). Already on the Facebook page created to support the eight faculty members, there have been calls to lodge complaints against Dean Dunkle with that Diocese's Intake Officer for violating the Canons of Title IV. The question there, however, will be whether the Bishop of Florida will want to be viewed as interfering in a matter that involves the internal governance of GTS, and that accordingly should be left to the Board.

Thus we have all kinds of balls up in the air at GTS. The faculty has organized into a union, but the NLRB will not take jurisdiction over religious schools and their unions, so the Board cannot be ordered to negotiate with it. The Bishop of Florida has putative disciplinary authority over the GTS Dean, but he likewise will probably not take jurisdiction. Whether any of ECUSA's Canons may be said to override the terms of the faculty's employment agreements again is a question without a court that can decide it. And we are not informed as to whether the faculty members even have written contracts of employment with GTS -- or whether, if they do, their employment is tenured, or is at will in some cases.

It looks, then, as though the parties will just have to come together to sort things out. And after all, isn't that the Christian thing to do?

Thursday, September 25, 2014

The Unraveling of the Anglican Communion

For some time now -- ever since ECUSA's unilateral decision to consecrate V. Gene Robinson as a bishop -- the Anglican Communion has been unraveling, but since it was such a loosely based agglomeration of churches to begin with, hardly no one has noticed. And yet, there were warnings aplenty.

From the October 2003 statement of the Primates who gathered specially in London before the consecration scheduled for November:
If [V. Gene Robinson's] consecration proceeds, we recognise that we have reached a crucial and critical point in the life of the Anglican Communion and we have had to conclude that the future of the Communion itself will be put in jeopardy. In this case, the ministry of this one bishop will not be recognised by most of the Anglican world, and many provinces are likely to consider themselves to be out of Communion with the Episcopal Church (USA). This will tear the fabric of our Communion at its deepest level ...
From the Windsor Report of a year later:
In terms of the wider Communion, and our wider relationships with a number of key ecumenical partners, the consecration [of V. Gene Robinson] has had very prejudicial consequences. In our view, those involved did not pay due regard, in the way they might and, in our view, should have done, to the wider implications of the decisions they were making and the actions they were taking....
There remains a very real danger that we will not choose to walk together. Should the call to halt and find ways of continuing in our present communion not be heeded, then we shall have to begin to learn to walk apart.
From the statement issued by the Primates meeting at Dromantine in February 2005:
Whilst there remains a very real question about whether the North American churches are willing to accept the same teaching on matters of sexual morality as is generally accepted elsewhere in the Communion, the underlying reality of our communion in God the Holy Trinity is obscured, and the effectiveness of our common mission severely hindered.
From the statement issued by the Primates meeting at Dar-es-Salaam (Tanzania) in February 2007:
The response of The Episcopal Church to the requests made at Dromantine has not persuaded this meeting that we are yet in a position to recognise that The Episcopal Church has mended its broken relationships... We are deeply concerned that so great has been the estrangement between some of the faithful and The Episcopal Church that this has led to recrimination, hostility and even to disputes in the civil courts....
The strained attempts by the collected Primates to hold on to unity took two directions after the Tanzania gathering: on the one hand, they placed their hopes in a new Anglican Covenant; and on the other, they tried to establish arrangements for alternative pastoral oversight within the divided churches of Canada and the United States. Both attempts came to naught.

The Archbishop of Canterbury was unable and unwilling to do what was necessary to save either of the two initiatives. Consequently, the bishops of ECUSA (who received their invitations to Lambeth as though nothing had happened) had no motivation to change course. Indeed, the latter were only too willing to see the Primates' efforts fail, without their having to do anything overt to torpedo them. And Lambeth itself was both a collegial dud (thanks to the imposed but phony indaba gimmick) and a financial disaster.

By 2008 the hostility and disputes inside ECUSA spilled over into the uncanonical depositions of four orthodox bishops -- three of them diocesan (+Schofield, +Duncan and +Iker). The lawsuits picked up in earnest, and largely remain unabated to this day. These blatantly illegal actions by the new Presiding Bishop of ECUSA directly brought about the formation of what in time became the Anglican Church of North America (ACNA). The division of ECUSA was now formal -- even if most of those whose actions had led to it refused to recognize what had happened.

Dr. Williams' dithering over Lambeth, ECUSA's thumbing its nose at him over pastoral oversight, and its continued actions against dissident bishops and clergy, greatly widened the fractures in the Anglican Communion. Over three hundred bishops from African denominations refused to attend Lambeth, and a number of the Global South primates announced GAFCON's first gathering, timed to take place before Lambeth 2008 even convened. The division within the Anglican Communion was now formal, even though again most refused to recognize what was happening.

After the events of 2008 within ECUSA, there was no longer any reason for the revisionists in ECUSA to hold back in the slightest. The 2009 refusal by bishops in ECUSA to honor a moratorium on further confirmations to the episcopate of priests in same-sex partnerships wrote finis to the career of Dr. Rowan Williams as the Archbishop of Canterbury. He had made a personal plea to General Convention not to proceed with the approval of the elections of two lesbian-partnered women to the episcopate, which that body spurned (one could say: contemptuously).

The broken Communion limped along, with all pretenses of unity ringing hollow. The seventh and last meeting of the Primates was a total failure to heal the splits within the Communion in January 2011. The paper on the "purpose of the Primates Meeting" adopted at its conclusion now reads rather plaintively in light of the widening fissures. The new Archbishop has not even bothered to try to resurrect the body, which is now irrevocably sundered.

General Convention 2012 completed the dismantling of the Windsor Report by formally (and again, uncanonically) licensing bishops to authorize same-sex blessings within their jurisdictions. Rowan Williams resigned as Archbishop as of the end of the year. His replacement, while listening to the alienated primates, has been unable to reverse the causes of their alienation, and indeed, has only added to them with the recent moves by the Church of England to authorize same-sex (but theoretically celibate) partnerships between clergy.

In short, the Windsor Report's much-touted "Instruments of Unity" have failed to fulfill their calling. The Lambeth Conference, after the precedent set in 2008, has no further Communion-wide purpose, and the Church of England will probably not agree to finance it again. The Archbishop of Canterbury has lost all his stature within the Communion, and is now having trouble even keeping the Church of England together. The Primates Meeting is dead. And the crevasses that have opened wide in the Communion have rendered the Anglican Consultative Council into a meaningless gathering for futile debates and pursuits -- much like Jonathan Swift's Academy of Lagado.

From 2003 to 2013 -- it took just ten years for ECUSA and the Anglican Church of Canada to unravel the Anglican Communion. Which fact goes to show how loosely knit it was in the first place: the rebellion against papal authority which began the movement replaced that authority with the English monarchy -- but its Erastianism could not be imposed upon the branches which the Church began to found in other countries. Those branches came to view themselves as autonomous, and none more so than the Americans, who had to fight the English for their freedom.

Yes, Americans had to fight the English, but not for their religious freedom as Anglicans. England instead fully cooperated in establishing apostolic succession in the branch that would bring about the Communion's unraveling, just 225 years later. The Archbishops of Canterbury and York who ordained the first American bishops did so on the latter's promise that "We are unanimous and explicit in assuring your Lordships, that we neither have departed, nor propose to depart from the doctrines of your Church. . . ." (see this post for more details).

So much for promises. ECUSA is now part of only one-fourth of a Communion, while the vast majority of persons who call themselves "Anglicans" are part of the other three-quarters. The Archbishop of Canterbury has cast his lot with ECUSA, as have those denominations which depend on ECUSA for financial support.

Money, however, cannot a Communion make. Instead, as ECUSA's wealth grew exponentially from the 19th to the 20th century, we must now conclude that with greater wealth came greater  irresponsibility -- just as it did with all the great and wealthy families of the world. Money, indeed, has unmade a Communion.

Meanwhile, ECUSA continues blithely along, acting as though nothing of moment has happened.

And of course, since in its own collective mind it is not responsible for anything, then of course nothing has happened.

There are none so blind as those who will not see.