Memorandum to Presiding Bishop Jefferts Schori (CONFIDENTIAL)

MEMORANDUM TO: Her Excellency, the Most Rev. Dr. Katharine Jeffers Schori
FROM: Chancellor to the Presiding Bishop
DATE: April 1, 2015
SUBJECT: Need for Immediate Pastoral Direction

CONFIDENTIAL - FOR THE PB'S EYES ONLY

Your Excellency:

There is urgent need for you to send out a Pastoral Directive to all diocesan bishops before their public objections to the passage of laws such as Indiana's Religious Freedom Restoration Act (RFRA) get out of hand, and impair the position which The Episcopal Church™ is taking in the civil courts. Allow me to explain.

The statutes recently passed in Indiana and Arkansas are modeled upon the 1993 RFRA legislation which was introduced in Congress by Rep. Charles Schumer (D-NY) and by then-Senator Ted Kennedy (D-MA). RFRA passed the House on a unanimous vote, and cleared the Senate with just three dissenting votes. It was then signed into law by Democratic President Bill Clinton, and renewed by Congress in his second term, in 2000.

The statute works at the state level just as it does at the federal level: it forces the government to justify any law or legal precedent that burdens the practice of one's religion. Originally designed to counter a Supreme Court ruling that upheld Oregon's dismissal of native-American employees for smoking peyote as part of their rituals, RFRA most recently was applied by the Supreme Court in the Hobby Lobby case to uphold the right of a closely-held corporation to decline to provide coverage for certain contraceptives to its employees.

In the ongoing church property litigation cases, we are frequently faced with the argument that the trust interest declared by the Church's Dennis Canon cannot be given recognition, because the Church did not own the parish properties in which it claimed a beneficial interest, and declarations of trust have to be signed by the owner of the trust property to satisfy what is called the "Statute of Frauds." (The latter was a 16th-century law passed by Parliament that required all deeds affecting real property to be in writing, signed by the owner, and it passed into our States' laws after the Revolution.)

We have always countered that argument by contending that the Dennis Canon is an inherent part of The Episcopal Church™'s polity -- that by requiring TEC™ to satisfy the Statute of Frauds, state law was interfering with the Church's free exercise of its religion. Recently, we have made exactly the same argument in the cases involving dioceses that claim the right unilaterally to withdraw -- we contend that TEC™'s polity requires that a diocese's union with General Convention is perpetual and irrevocable, regardless of what the Constitution and Canons do or do not say.

You can appreciate now, I presume, the importance of the various RFRA statutes to the support of these arguments which we are making in court. It is embarrassing, to say the least, to have the various bishops of TEC™ spouting off against a law about which they know very little, and arguing for its repeal. We must maintain a unified front against the forces that are allied against us, and which recently have been on the upswing in Texas, Illinois and South Carolina, as I reported to you earlier.

Your Excellency, please send the following Pastoral Directive out at once to all of your subordinate bishops and clergy in the Church:

TO ALL BISHOPS AND CLERGY IN THE EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA: 

Grace and peace to you, from your sovereign Lord and Presiding Bishop. In the furtherance of The Episcopal Church™'s spiritual mission, and in defense of her most sacred polity, as handed down to us since the American Revolution, I hereby exercise my pastoral position and authority to counsel and advise each and every one of you that from this day henceforth, you are not to take any public or private stand against the passage of statutes modeled on the Religious Freedom Restoration Act (which Congress passed in 1993 and versions of which have since been adopted in over 20 States). Nor are you to advocate in any way the repeal of any such statutes. They are absolutely necessary to the Church's being able to carry out its mission in a secular and increasingly hostile world. Rest assured that their impact upon various segments of our society who have historically been the victims of bigoted and unjust discrimination, such as that impact may be now or in the future, pales before the importance of their impact on the ability of this Church to keep its house in order. 

You are all to conduct yourselves henceforth in accordance with this Pastoral Directive, or else answer to the appropriate ecclesiastical authority in accordance with the provisions of Title IV of the most sacred Canons of The Episcopal Church™.