Blatant Bias on Display in ECUSA's South Carolina Case

Before the oral arguments yesterday in The Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church in the Supreme Court of South Carolina, your Curmudgeon had heard mention of the fact that one of the five justices who would be hearing the case was active in one of the parishes affiliated with the defendant Episcopal Church in South Carolina. I did not look into the question further until I watched the oral arguments live, and could see the justices as they put their questions to each of the attorneys for the litigants.

I took particular note, as I watched, of the attitude and unspoken assumptions behind the questions asked by Justice Kaye Hearn, the newest person elected to that Court. In many cases, it seemed (to this appellate attorney) that her questions were designed more to provide encouragement to ECUSA's attorneys, and to advance their arguments, than they were to probe the various issues at stake in the case.

A little research on the Internet provided the facts that Justice Hearn was a former member of the congregation and choir at St. Paul's in Conway, South Carolina -- a parish that chose to remain with Bishop Mark Lawrence and his Diocese. A group of two dozen or so from that 500-member parish decided they could not remain, and left to form what has since become St. Anne's Episcopal Church, also in Conway. The records there show that Justice Hearn's husband, George, is a member of the parish's vestry and mission committee.

All fine and dandy -- if a little too reminiscent of the case of Justice David E. Nehmias, of the Georgia Supreme Court, who wrote the majority opinion for that Court awarding Christ Church Savannah to the Episcopal Diocese of Georgia. It turned out that Justice Nehmias declined to recuse himself from the case, even though he was a prominent member of an Episcopal congregation in Atlanta. In doing so, he failed to follow the example of Presiding Justice George Carley, who recused himself from the case because he belonged to an ACNA parish in the same city.

Could the same bias be operating in the case of Justice Hearn? Consider just the following, taken from the oral argument by the attorney for the appellants (Bishop vonRosenberg's group and ECUSA), Blake Hewitt. These are excerpts from that argument in which Justice Hearn exclusively had the mike. Notice, please, how few of the verbatim quotes below are actual questions which Mr. Hewitt might be expected to have some trouble in answering, as opposed to softballs lobbed in his direction. Notice, too, how many of the quotations are not even questions, but are advocacy speeches which would have been appropriate coming from Mr. Hewitt's mouth, but scarcely proper for a sitting justice to make in a case presented for decision before an impartial court. [Note: Times shown in brackets are for the tape at this link.]

1 [1:56]: But didn't [Judge Goodstein] also disallow you from introducing evidence that would tend to show that [ECUSA] is not a congregational church?

2 [2:45]: Mr. Hewitt, in this case the national Church has called itself a "hierarchical" church. Of course, we could look at Wikipedia, but we wouldn't have to do that, we could also look at the myriad of court decisions, including one from our own 4th Circuit, the Dixon case, which is a very thoroughgoing analysis of what constitutes a hierarchical church, and it seems by any definition, this Church is hierarchical.  But does that matter -- in this case?

3 [4:49]: Your argument is that the Dennis Canon imposed an express trust on this property, and for thirty years, the Dio ---

4 [5:44]: But of course, in this case, Judge Goodstein wouldn't even let counsel for the national Church bring in what had been done as far as disciplining Bishop Lawrence -- in fact, she threatened to revoke his pro hac vice [status] if he didn't stop talking about that, isn't that correct?  

5 [6:10]: Well, [Judge Goodstein] seemed to think that [the] two principles -- hierarchical principles and neutral principles -- can't co-exist, but there's lots of cases that say they can: what's your position on this?

6 [8:35]: And, Mr. Hewitt, doesn't this [questioning the effectiveness of the Church's enactment of the Dennis Canon] call into question the teaching of Jones v. Wolf, about what is necessary for a national church to be able to create a trust -- if that burden is supposed to be 'minimal'?

7 [10:16]: And isn't it correct that this particular Diocese enacted its own version of the Dennis Canon?

8 [10:36]: And Mr. Hewitt, I want you to -- I'm not disregarding the number of cases that have reached the result you are arguing for, with regard to the Dennis Canon, and in almost all those cases, cert[iorari = review] has been denied or dismissed by the U.S. Supreme Court, but I would like you, or I would like to hear you, about the Masterson case out of Texas, which seems to take more -- more of an All Saints view. I will note that our sister state of Georgia, in a 2011 opinion, noted that the South Carolina decision in All Saints has not been followed in a church property case by any court outside that case -- outside that State -- so we're dealing with a bit of an outlier, if you will -- but tell me about Masterson.

9 [12:58]: What about all the quit-claims that were issued here?

10 [17:45]: [Interrupting a question by Chief Justice Toal] Well, of course, Mr. Hewitt, if we're going to talk about that [Bishop Lawrence's ostensible authority to execute quitclaim deeds] -- I would like you to talk about his vows, and how the national Church assumed he would be true to those vows, especially when he wrote a letter saying "I intend to stay with the national Church" -- period. So please talk about that.

11 [19:48]: Might that [Bishop Lawrence's signing the Bishop's Statement on Polity] be one reason that in All Saints cert was not sought [by Bishop Lawrence]?

12 [21:35]: If this case -- this Diocese -- is truly congregational, and can just pick up its toys and leave whenever it wants to -- why did it then become part of another larger group? Did it, did it not -- after it purported to leave the national Church?

13 [22:01]: Sure is a lot in the record, and I thought there was some discussion that they were part of another larger group, and so my question was: if they really were congregational, why -- ... [22:22]  I thought it was Global South, a group of third world (mostly) provinces, in Africa -- I mean, I could be wrong.

14 [22:40]: Why isn't this a case -- I'm going to ask the same question of opposing counsel -- why isn't this case, boiled down to its essence, just a question of who should lead this Diocese -- who is the rightful bishop --  and hasn't the national Church answered that question by ordaining Charles vonRosenberg?

There was not one question or statement from Justice Hearn which Blake Hewitt could have had trouble dealing with -- in fact, it many instances (such as Nos. 1, 4, 5, 6, 10, and 14) they were just a case of passing the baton to a fellow race runner. In short, this was not a dialogue between court and counsel; it was collaboration between counsel and a co-counsel who sat on the bench.

Notice, too, how in excerpts No. 4 and 10 above, Justice Hearn tried to interject the issue of Bishop Lawrence's faithfulness to his ordination vows into the case. Religious vows are not for the civil courts to consider. That is why churches have ecclesiastical courts, and that is why the Episcopal Church (USA) brought its disciplinary charges against Bishop Lawrence. So Justice Hearn had no business whatsoever egging on ECUSA's attorney to speak about ecclesiastical matters that were not before the Court.

But what if Justice Hearn had an ulterior motive for doing so? Further research on the Internet disclosed that Kaye Hearn of Conway, South Carolina is a signatory member of the Episcopal Forum of South Carolina -- and that she joined when she was still a member of St. Paul's. The Episcopal Forum, for those who may not remember, was instrumental in instigating the bringing of disciplinary charges againt the Rt. Rev. Mark Lawrence. Moreover, here are just some of the principles to which each member subscribes:

Who are we? 

• Episcopalians who are united in our desire to remain members in good standing in The Episcopal Church (TEC) and the Anglican Communion.
  
• Episcopalians who accept that the governing authority of TEC, as given by its Constitution and Canons, is the General Convention of the Episcopal Church.
  
• Episcopalians who believe that the Holy Spirit is working in the deliberations of The Episcopal Church, General Convention, TEC Executive Council and its conferences and committees

The bias in favor of the national Church that infuses these principles is not hidden; it is made plain for all to see. The second principle alone expresses an opinion on an issue that is at the heart of Bishop Lawrence's case against the national Church. To this attorney, it is simply unbelievable that a sitting Justice who had long ago subscribed to these principles in public would not recuse herself from sitting in judgment on Bishop Lawrence's case.

But we are not done yet. Let's take a look at the corresponding extracts from the oral argument of Bishop Lawrence's attorney, Alan Runyon.

15 [29:23]: I have two questions for you about that, Mr. Runyan. The first one would be the language in the All Saints opinion that talks about where a civil court is presented an issue which is really a question of religious law, but is masquerading as a property dispute. And I know you're familiar with that language, so: why isn't this that type of situation? But my second question -- and I'm sure you'll address it -- there has been a motion to argue against precedent, there's a different Court here -- of course, we take precedent very seriously -- but the majority of this Court did not sit on the All Saints case, and you would have to acknowledge, it is an outlier in this country. So, if you could address those two issues for me -- I understand why you want to argue All Saints; I would, too, if I was in your position -- but if you could answer that for me. 

Notice how Justice Hearn keeps trying to discredit the unanimous decision in All Saints, by belittling it as an "outlier" (this is the second time she used that terms -- see No. 8 above). She brazenly suggests that the three newest Justices on the Court could overrule what five Justices unanimously decided just five years ago. Only a person who resented that decision personally when it came down, and who has fought it ever since, would spend so much effort trying to discredit it in court.

16 [34:44]: [The deference approach is] the majority rule [in cases] on the Dennis Canon? ... There might be eight or nine [cases], at least... And I recognize the different nuances to each of those cases.

17 [35:10]: Are you talking about All Saints? When you say that the law is clear? Well, let's look at All Saints -- there was no analysis in All Saints of the myriad of cases that go the other way. There was no mention of that. How do we know what was really presented in All Saints?

18 [35:47]: You would say that the only way that there could have been a trust created is if the national Church got each individual parish to agree? ... But how would that be the 'minimal burden' that Jones v. Wolf says they're placing on national churches to do this very thing? [Mr. Runyan responds that the court in Jones v. Wolf did not say that.] Well, we'll talk about that. 

19 [37:00]: Well, let me ask you about that [the methods of creating a trust according to Jones v. Wolf]. Let's stop there a minute. Jones v. Wolf was decided in 1979, coincidentally the very same year that the General Convention adopted the Dennis Canon, and I believe your client had a seat -- had representatives there. The Dennis Canon was in effect here for about thirty years, till this brouhaha happened -- and in fact the Diocese adopted its own version of the Dennis Canon. But what I want to direct your attention to -- is: what about Section 33 31-180 of our Nonprofit Corporation Act, that says: "If religious doctrine governing the affairs of a religious corporation is inconsistent  with the provisions of this Chapter on the same subject, the religious doctrine controls"? Why isn't that saying -- why isn't that South Carolina General Assembly saying something like the Dennis Canon would trump any suggestion of State law?

20 [40:43]: If [the language of accession to the national Constitution] didn't mean anything, then why was one of the first things your client did was to remove that language?

21 [43:30]: Yes, Mr. Runyan -- and I would point out, echoing the Chief's concerns, that this was a non-jury trial. And yet I counted over twenty-five objections to Professor McWilliams' testimony -- in a non-jury trial. You all tried so hard to keep any of that evidence out -- and then, the order is issued, and lo and behold: there's a finding that this Church is controlled by the bottom -- that the parishes are really in charge, rather than the national Church. So -- what is it with that?

22 [47:15]: Doesn't [the claim that there is no judicatory in the national Church with authority over dioceses] just get us back to our different interpretations of what the Dennis Canon means and does?

23 [47:43]: Well -- [this court can't pick between the two bishops] because the national Church has already chosen, has it not? The national Church has chosen vonRosenberg as the bishop. Why doesn't that end it? I wanted to ask you that question, I thought I was going to ... 

24 [48:05]: Why wouldn't -- help me with why we wouldn't defer to the national Church's decision on that obviously ecclesiastical matter? You say in your brief -- in the red brief -- you say "Of course, civil courts could not decide who is the appropriate minister." Well, but it seems like you're doing exactly the same thing here -- you are saying "the court can decide who is the rightful bishop." So help me with that. ... You're [relying on] that All Saints [case] again.

25 [49:54]: But I don't see any argument -- Mr. Runyan, I don't see any argument, or hear any argument from the other side that your clients [do not] have a perfect right, an absolute right, to disassociate, to leave. The problem is: can they take property -- that arguably has been held in trust for the national Church for decades -- with them? 

26 [51:40]: Then let me ask you this question. Isn't it correct that at the time of incorporation the stated purpose of the Diocese was to follow the doctrine and polity of the Episcopal Church -- to continue to operate under the Constitution -- yes, that is the language I was looking for. Was that [language] meaningless? ... And they can change their minds?

Mr. Hewitt then came back for his rebuttal, and received the following final assist from his Episcopal co-counsel on the bench:

27 [55:00] Wait a minute. Speaking of the Diocese's relationship with the national Church, talk to us about in 1922, when there was only one diocese in South Carolina, and they wanted to divide into two. Did they do that on their own?

This was truly a disgraceful performance and display of impropriety by one of the country's highest sitting judges. If she does not recuse herself post-argument, there should be, at a minimum, an investigation as to whether Justice Hearn violated Canons 2 and 3 of the South Carolina Code of Judicial Ethics, which state in part:

CANON 2 

A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES 

A. A judge shall respect and comply with the law* and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

CANON 3 

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY

A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability or age, and shall not permit staff, court officials and others subject to the judge's direction and control to do so.

 And here is the Disqualification Standard in that same Canon 3 which Justice Hearn should have applied to herself:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party ...

It would be impossible, given her participation as a Forum Member and its role in bringing down Bishop Lawrence, and in having him replaced with Bishop vonRosenberg, for Justice Hearn to deny that she harbors a personal bias against Bishop Lawrence and the Diocese he heads.

We await further developments in the South Carolina case.

On the Oral Arguments in South Carolina

Your Curmudgeon watched the arguments in the case of Bishop Lawrence and his diocese and parishes against the Episcopal Church and the Episcopal Church in South Carolina yesterday, and reviewed the tape carefully once again as archived. The event must have seemed dispiriting to those who supported the trial court's decision, because Judge Goodstein came in for a substantial amount of criticism for excluding evidence that ECUSA wanted to put on -- as it was able to do in San Joaquin, Quincy, Fort Worth and Pittsburgh -- concerning its "hierarchical" structure.

Indeed, much of the argument seemed to dwell upon whether the national Church should be deemed hierarchical, and if so, whether that classification would make a difference to the outcome. And that is precisely where ECUSA and its attorneys wanted to focus it. (How they succeeded in pulling off that strategy will be the subject of my following post.)

For ECUSA and its attorneys, the world of church property law began and ended with Watson v. Jones, an 1872 decision by the United States Supreme Court that, among other irrelevant observations (called "obiter dicta", or "things said beside the point"), offered the view that the then-established Protestant Episcopal Church in the United States of America was hierarchical. The opinion furnished no analysis or justification for that observation, but simply included PECUSA in a group of churches that the Court contrasted with those it termed "congregational."

For the Court in Watson, the distinction meant this. In a hierarchical church, consisting nationwide of many branches under a central religious government, there would be a supreme adjudicatory body with the power to make decisions on matters of church law and polity that were binding on each and every local branch of the church, and the civil courts were required by the First Amendment to defer to such binding adjudications in any disputes that came before them. In a congregational church, by way of contrast, there was no kind of higher authority beyond the congregation itself, and so a decision by the majority of the congregation was binding on all of its members.

The United States Supreme Court gradually moved away from its holding in Watson, without actually overruling it. As more and more courts saw that deference to a hierarchical church judicatory would result in a victory for the hierarchical church authorities in every case, there began to arise a resistance to giving that category of churches a pass, as it were, on all constitutional issues, and thereby to allow them to govern their members in ways that no other church could. The tendency of the deference rule, in other words, was to favor one class of churches over all the others, and that smacked of "establishing" the hierarchical churches in a manner forbidden by the First Amendment.

In contrast, there was developed a so-called "neutral principles of law" approach, by which churches were treated just like private persons in respect to holding property. By making no distinction in its rules, the neutral principles system guaranteed that all deeds, contracts and other documents affecting title would be interpreted the same, without regard to the person or the Church that created them.

The Episcopal Church's Dennis Canon provides a perfect illustration of this contrast. Cases which hold that ECUSA is "hierarchical" allow the Church to enforce in the civil courts, against individual member parishes, its Dennis Canon -- a mandatory trust that keeps a parish from ever leaving the Church, on pain of surrendering all of its real and personal property to the diocese to which it belongs. Such courts enforce the Canon despite the fact that those parishes never signed or recorded any documents placing their individual real and personal property into a perpetually binding trust. These cases stand for the proposition that hierarchical churches do not have to trouble themselves with complying with State law requirements for the creation of trusts (such as the Statute of Frauds, which requires a trust document be signed by the person owning the property being placed into a trust).

Other churches, to achieve the same result, could do so only by making each individual parish sign and record the appropriate trust papers. But hierarchical churches were free to impose a trust all at once, by fiat, on all parish properties simultaneously. And many trust attorneys believe that such an exemption from the requirements of State law creates an issue under the First Amendment's Establishment Clause.

The Episcopal Church has nothing it can point to by way of language in its governing documents which renders the property of a Diocese (as opposed to that of a parish) subject to any kind of trust in its favor. The South Carolina case involves an entire Diocese of the Church that amended its governing documents so as to secede from ECUSA, and along with it came nearly forty individual parishes that were members of the Diocese. Faced with these moves, ECUSA first argued that even though the parishes had left with their Diocese, the Dennis Canon still meant that they could not keep their property. And as for Bishop Lawrence and his incorporated Diocese, it argued that it had removed him from his office and appointed a new bishop in his place who had the authority to take it over, and take possession of all diocesan property.

In the South Carolina Supreme Court yesterday, ECUSA's attorney argued exclusively for deference to it as a "hierarchical" church. (Never mind that the only true hierarchical relationships in ECUSA are between a diocesan bishop and his subordinate clergy, and in some cases between an individual member parish and its governing diocese. There is no body within ECUSA -- not its General Convention, its Presiding Bishop, or its Executive Council -- which can order or make a Diocese to do anything which that diocese does not choose to do. The relationship between the national Church and its dioceses is thus voluntary, for as long as the parties want to continue it, and may be dissolved at any time by taking the appropriate steps to amend the diocese's governing documents. The national Church, again, has no power to prevent a Diocese from so amending its governing documents.)

To do so, he had to blur the distinctions in the cases dealing with individual parishes -- and he had to ignore the Quincy case altogether (which was not even mentioned in argument). In doing so, he received substantial assistance from Associate Justice Kaye Hearn, as I will detail in my next post.

Two other Justices (who did not take part in the 2009 All Saints Waccamaw decision) seemed to be taken in by the confusion created by all the discussion of hierarchy and the effect to be given to the Dennis Canon. Justice Beatty, who did join in the 2009 decision, was largely noncommittal, and spoke the least of any Justice.

That left Chief Justice Toal, who despite all the tortuous arguments stuck to basic legal principles and analysis: a trust needs a settlor to be created, and the beneficiary of a trust is perfectly within his rights to quitclaim back to the settlor all of his supposed interest in the trust. (There was thus no "breach of the Dennnis Canon" when Bishop Lawrence signed individual quitclaim deeds to his parishes, on behalf of the Diocese as beneficiary of any trust interest that arguably may still have existed following the All Saints Waccamaw decision.) And South Carolina religious corporations are free to amend their governing documents -- including a complete change in their charitable purpose -- as long as they comply with the formalities required by South Carolina law.

To this observer, it seemed as though the Justices had not discussed the case with each other beforehand. And it also looked as though the Chief Justice had taken on the responsibility of writing an opinion in the case -- since she was the one most weighed down with case files and briefs. But whether her opinion will be the majority one remains to be seen. I believe she has the confidence of Justice Beatty, who followed her before. And she may have Justice Kittredge in her camp, as well.

But both he and Justice Costa Pleicones seemed to have difficulty following the ins and outs of the arguments -- thanks to the constant interjections by Justice Hearn on behalf of the Church of which she is an active member. She practically monopolized the argument with long speeches (not questions) that would have sounded more appropriate had they come from ECUSA's attorneys. The resulting final impression of Mark Lawrence and his Diocese having had a rough time in the Court is almost entirely, in my estimation, due to the attempts by Justice Hearn to derail the case by returning South Carolina to the days of deference, as ECUSA argued in its briefs.

Whether her unprofessional and entirely partial tactics will succeed is a question that will have to await the Court's opinion, which could be months away. I shall have much more to say about those tactics in my following post.

Important Developments in South Carolina

Tomorrow morning, September 23, beginning at 10:30 a.m. Eastern Time, the Supreme Court of South Carolina will hear oral arguments in the appeal, taken by Bishop vonRosenberg, ECUSA and its rump group that calls itself "the Episcopal Church in South Carolina", from the adverse decision last February by Circuit Judge Diane S. Goodstein. Her opinion, which followed a three-week-long trial in July of last year, declared that Bishop Mark Lawrence, his Episcopal Diocese of South Carolina and 36 of its parishes were the sole owners of their respective properties, including the trade name, seal and marks of the historic Diocese, which was one of the original founders of ECUSA (then "PECUSA") itself.

Heading up the panel hearing the case will be Chief Justice Jean Hoefer Toal, who in that same position authored the Court's unanimous 2009 opinion in the case of All Saints Waccamaw v. Episcopal Church, which I quoted and analyzed in this earlier post. Also serving on the panel will be Associate Justice Donald W. Beatty, who joined in the Waccamaw opinion. It is not known yet whether any of the other sitting Justices have recused themselves (two of them did so in the Waccamaw case); the fifth, Justice Kaye Hearn, assumed her seat on the Court after the arguments in the 2009 case.

Chief Justice Toal, whose religion is Roman Catholic, is no stranger to the concept of what makes a church "hierarchical." In her opinion in the Waccamaw case, Justice Toal noted that South Carolina Courts are required to resolve church property disputes using "neutral principles of law" whenever possible. They may defer only to "the highest religious judicatories" when they have properly decided an issue "as to religious law, principle, doctrine, discipline, custom, and administration." It should be noted that in her written opinion filed last January, Circuit Judge Diane Goodstein expressly found that there were no such bodies in the Episcopal Church (USA) that had outside jurisdiction over either the Diocese or any of its parishes.

Another point decided by the Waccamaw court is that ECUSA's Dennis Canon did not, in and of itself, create an enforceable religious trust on parish property under South Carolina law. Bishop vonRosenberg's lawyers tried to distinguish that holding before Judge Goodstein, but they did not succeed, and there is no reason to expect that their attempt to do so before the Supreme Court tomorrow will fare any better.

In a related federal case, returned to the federal District Court to reconsider its prior order of dismissal, District Judge C. Weston Houck entered an order yesterday staying all further proceedings in his court pending the issuance of a decision by the Supreme Court of South Carolina. Although the federal case ostensibly presents issues of federal trademark law under the Lanham Act, Judge Houck noted that "South Carolina law provides the rule of decision on the underlying issues" of who rightfully is in control of the Episcopal Diocese of South Carolina, which is a religious entity organized and incorporated under South Carolina law.

Accordingly, it is expected that if the South Carolina Supreme Court issues a ruling affirming Judge Goodstein's decision, Bishop Lawrence will be successful in having the federal court dismiss the trademark claims -- just as Bishop Iker was able to do when a parish there tried the same federal strategy that Bishop vonRosenberg has pursued.

Finally! An Anglican Post

News from the Anglican Communion has been non-existent, largely because it is no longer functioning as a Communion (remember what the Primates warned in October, 2003?), and because developments in the Church of England (as it slowly goes to pieces in the same way that ECUSA did) have left little that can still be called Anglican.

So it comes as a welcome surprise that the Archbishop of Canterbury has called for a gathering of the Anglican Primates in Canterbury next January to discuss the future of the Communion. The agenda will not be dictated beforehand, but will consist of topics suggested by individuals and agreed upon by consensus.

In a nod that acknowledges the collective will of the GAFCON primates, the Archbishop of Canterbury has already extended an invitation to ACNA Archbishop Foley Beach to attend for part of the gathering. According to the Secretary of the Anglican Communion, the Most Reverend Josiah Idowu-Fearon, "nearly all the Primates have indicated support for this meeting" -- since Archbishop Welby's invitation shows that he listened to what the GAFCON primates had to say in his individual conversations with them.

Another factor that no doubt is facilitating a fresh attempt to strive for consensus is that the Presiding Bishop of the Episcopal Church (USA) attending will be the newly elected Most Rev. Michael Curry, rather than his predecessor, who managed repeatedly to give offense to many of the Global South's  primates at their previous meetings, and who was indifferent to the consequences of her conduct for the communality of the Communion. Bishop Curry will take office November 1, and will come to the meeting with a clean slate (insofar as any representative of ECUSA is able to do so). At least there are signs that he will meet his colleagues from an initial position that reflects more of a personal, evangelically-based humility than of an intellectually-based self-assurance or arrogance. If so, that will go a long way toward helping the Primates' conversations recover lost ground, and perhaps even move forward.

Nevertheless, neither ECUSA nor the Anglican Church of Canada have shown the least sign of moderating their separatist stances, and so there can be no return to the pre-2003 Communion. At the same time, their self-inflicted decline in members will lessen their ability to throw their weight around: can you imagine Presiding Bishop Jefferts Schori agreeing to attend a meeting at which Archbishop Robert Duncan would also be present? The challenge to Archbishop Welby and the gathered Primates will be to find a path that will allow the greatest possible number of shattered relationships to heal, and so in time (perhaps) to move the Communion to a new consensus.

But for that to happen, the Anglican Communion Office (through both the Archbishop of Canterbury and its Secretariat) will have to distance itself further from financial and ideological dependency on ECUSA and its wealthy constituents, such as Trinity Wall Street. For too long now, from GAFCON's point of view, the revisionists have been calling the shots, but now there are signs that they at last are weakening. That is why Archbishop Idowu-Fearon will play a key role, along with Archbishop Welby, in resolving how best to start realigning the Communion at the upcoming Primates' Meeting, if that process is to begin at all.

If they try to help ECUSA and ACoC retain their erstwhile roles of influence, they will hasten the eventual disintegration of the Anglican Communion. Likewise, if they listen only to the voices of modernity, according to which each church's or denomination's view of Scripture needs to get in step with the culture, then they will seal that disintegration, by recognizing it as a fact that has already occurred. But if they actually listen to the voices that are seeking to hold the Communion in line with its traditional understanding of Scripture -- an understanding that stems from the very beginnings of the Anglican Church -- they may yet hope to call a halt to the disintegration, and to lay the first firm paving-stones for a Communion that will, one day and once again, derive its strength from its collective faith in the good news of Christ crucified.

The decision is in God's hands. Pray for the Primates, and (if you still treasure what once was there) for the lost Anglican Communion.

Standing up to the Obergefellers (3)

Now that the federal judge has ordered Rowan County's elected clerk released from federal prison so that she may resume her official duties, the Internet is rife with speculation as to whether or not she will go back to ordering (as she did before she was cited for contempt of court) that no marriage licenses be issued under her name at all. In order to cut through all the obfuscation that the left so delights in, let me use this post to lay out a few clear mileposts whose simple obviousness should be evident to anyone interested in a fair discussion.

First, let us review why Kim Davis was ordered to jail. In the wake of the legal confusion caused everywhere by the Obergefellers and their unilateral claim of federal authority to redefine marriage,  while not legislating from the bench, Kim Davis simply stopped issuing all marriage licenses in her county. Period.

All such licenses had previously gone out (by Kentucky law, again) over her name. Since she could not issue licenses to same-sex couples without violating the definition of "marriage" adopted by the people of Kentucky in its Constitution (which she had taken an oath to uphold, "so help me God"), and since she could not issue licenses only to male-female couples without violating the fiat of the majority in Obergefell, she had simply stopped issuing marriage licenses in her county altogether.

I submit that this was a perfectly rational response to the chaos the Obergefellers (as I choose to call them: Justices Kennedy, Breyer, Ginsburg, Sotomayor and Kagan) had created with their 5-4 ruling in that case (which I now sometimes call "the Obergefallen decision"). That ruling, which had no basis in the jurisprudence of our federal system, but was simply a blatant act of legislating a definition of marriage from the bench, was unobservant -- and disrespecting -- of the traditional restraints on its powers theretofore honored by the Supreme Court, and directly resulted (as the Justices in the minority so plainly warned) in the prompt jailing of a Christian for her sincerely-held religious beliefs.

For those on the left, Kim Davis faced no conflict whatsoever: she should hold her nose and issue licenses to whichever two people happened to ask for them. But religion comes cheap to those on the left: it is something always to be more honored in the breach than in the observance. If religion gets in the way of the left's agenda, it is yesterday's toast, to be discarded without a second thought.

Kim Davis, however, is not a fly-by-night Christian, who observes her religion only when no one else is looking, or could conceivably be bothered by it. By all the evidence (including her facing down the federal judge) she is (after an admittedly rough, secular past) a full-fledged, born-again Christian, who came by her beliefs at great personal cost and tribulation. She is thereby committed to them in a way that the "fly-by-nights" cannot understand. With her newly granted grace of God's forgiveness, Kim is very aware that salvation is not a matter of personal convenience, or accommodation to contemporary desires. And that understanding makes her persona non grata in the eyes of all the secularists who rejoiced at her imprisonment, because it makes her impervious to their demands.

So the ever-handy ACLU drummed up a case by which to sue her, recruiting two gay couples and two straight couples to say that she had denied their licenses. The suit, of course, was filed not in Kentucky state court, but in Judge Benning's federal court, because the Obergefellers had by their ruling ostensibly transformed marriage into a matter of federal constitutional law.

Judge Benning looked at the 5-4 ruling in Obergefell, and reasoned as follows:

"Obergefell is binding upon me as a federal court judge. So I am not free to hold that Kim Davis is within her constitutional rights to withhold marriage licenses from all applicants pending clarification of what law she should follow. Under the holding in Obergefell, which I am bound to apply to the facts of this case, she can neither refuse to license gay nor straight couples, and I will accordingly order her to do so at once. If she refuses to obey my order, I will hold her in contempt, and send her to jail -- because I don't think any fines would persuade her to act differently."

In so deciding, however, Judge Bunning accepted blindly the Obergefellers' premise that they were free to pass federal legislation from the judicial bench, in contravention of the very first sentence of the U.S. Constitution (after the Preamble). Article I, Section 1 begins: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Emphasis added.)

I don't see in that language any sharing of the "legislative powers" with any other branch -- do you? How, then, do the Obergefellers get away with legislating a new definition of marriage, to be applied by all fifty States no matter what?

The true answer, which you will not read on any left-leaning blog, is this: They will get away with it only if we let them get away with it -- which is to say, if we do not come to the defense of Kim Davis.

Let us review one more time the impossible dilemma into which the Obergefellers' overreach has landed the Kim Davises of this country (i.e., officials charged with enforcing their State's laws while respecting the authority of the federal government, acting in its proper sphere):

They have commanded that Kentucky's laws defining marriage as only between a man and a woman be struck down as violating their view of the definition of "marriage" as prescribed by the Fourteenth Amendment to the U.S. Constitution.

At the same time, in their black-robed collective wisdom, they have declined to furnish the ordinary officials charged with enforcing the laws with a simply worded definition of what "marriage" means. They decree only: "If a State recognizes marriage between a man and a woman, it cannot also refuse to recognize 'marriage' (as we deem it) between those of the same sex."

So we have a judicially declared principle of law, which ought, in the Obergefell case, to apply only to those persons who were parties before the Court in that case.

But under our federal system, other federal courts, and State courts too, are required to recognize principles of federal law as declared by the United States Supreme Court.

And what, pray tell, transforms the ruling in Obergefell into a declaration of principles of federal law?

Is "marriage" a traditional area in which federal courts previously exercised their powers? No.

Well, what about "equal protection of the laws" under the Fourteenth Amendment? What about it?

Doesn't the Fourteenth Amendment require States to apply their laws equally to all people who are similarly situated? Yes, it does.

And aren't same-sex couples who want to get "married" in the same situation as male-female couples? Only if you ignore what the fifty States have always, since the founding of this country, regarded as constituting "marriage." Because if you accept their traditional definition of marriage as between a man and a woman, then you have no denial of "equal protection." 

It is not "discrimination" to deny "marriage" to couples who have never met the basic criteria for marriage -- any more than it is "discrimination" to deny South Carolina residents the right to vote in Kentucky elections.

OK, so let's ignore that, then. Why is the Supreme Court of the United States (or at least five of its Justices, who get to call themselves "the majority") not free to say just what "marriage" is? Because the only way they could do so is by passing a piece of federal legislation. And they are not Congress -- the only federal body the Constitution empowers to pass legislation binding on the fifty States.

Why does redefining "marriage" involve legislation? Because you are not redefining it just for the couples involved in the Obergefell case; you claim to be redefining it for all people in all fifty States. And that is the function of legislation -- as even the most die-hard liberal will have to admit. 

I like to test liberals on the limits of what they would accept from a Supreme Court majority. Currently, my favorite is this:

Suppose a majority of the Justices of the Supreme Court rule that every business in the United States with one or more employees must allow at least one day off from work, in every seven-day period, and in default of choosing a different day, the day off must be Wednesday (to avoid clashes with religious groups). They do so on the grounds -- urged by the labor unions in the case before them -- that the "general welfare" clause of the Constitution allows them so to rule in order to promote the general welfare of all employees in all fifty States.

Questions:

1. Would you uphold their power to make such a ruling? Why, or why not?

2. What if an employee wants Wednesday off, but his employer decrees that it shall be Thursday, because that is the day that the employer's religion requires that he rest? Does the employee have a federal case? Why, or why not?

3. What if a business (say, like Uber) claims they have no "employees", and therefore that the ruling does not apply to them? Who decides what an "employee" is?

4. What if a church-sponsored school claims that it is not a "business", but a "religious institution"? Again, who decides the question?

Do you begin to see what I mean? Can you begin to understand why the ruling in Obergefell is not a legitimate ruling for the U.S. Supreme Court to make, given its limited powers under the Constitution? Once the Court -- or a bare majority of its Justices -- ignores those limited powers, where do things stop?

Spectacular Hubble Photo: Twin Jet Nebula

(Image source is here. Click the image to enlarge it; "Esc" to return to normal size.)

Here is NASA's explanation of what we are seeing in this wonderful example of the Hubble Telescope's capabilities:


The cosmic butterfly pictured in this NASA/ESA Hubble Space Telescope image goes by many names. It is called the Twin Jet Nebula as well as answering to the slightly less poetic name of PN M2-9.

The M in this name refers to Rudolph Minkowski, a German-American astronomer who discovered the nebula in 1947. The PN, meanwhile, refers to the fact that M2-9 is a planetary nebula. The glowing and expanding shells of gas clearly visible in this image represent the final stages of life for an old star of low to intermediate mass. The star has not only ejected its outer layers, but the exposed remnant core is now illuminating these layers — resulting in a spectacular light show. However, the Twin Jet Nebula is not just any planetary nebula, it is a bipolar nebula.

Ordinary planetary nebulae have one star at their center, bipolar nebulae have two, in a binary star system. Astronomers have found that the two stars in this pair each have around the same mass as the sun, ranging from 0.6 to 1.0 solar masses for the smaller star, and from 1.0 to 1.4 solar masses for its larger companion. The larger star is approaching the end of its days and has already ejected its outer layers of gas into space, whereas its partner is further evolved, and is a small white dwarf.

The characteristic shape of the wings of the Twin Jet Nebula is most likely caused by the motion of the two central stars around each other. It is believed that as the dying star and white dwarf orbit around their common center of mass, the ejected gas from the dying star is pulled into two lobes rather than expanding as a uniform sphere. However, astronomers are still debating whether all bipolar nebulae are created by binary stars. Meanwhile the nebula’s wings are still growing and, by measuring their expansion, astronomers have calculated that the nebula was created only 1,200 years ago.

Within the wings, starting from the star system and extending horizontally outwards like veins are two faint blue patches. Although these may seem subtle in comparison to the nebula’s rainbow colors, these are actually violent twin jets streaming out into space, at speeds in excess of one million kilometers (621,400 miles) per hour. This is a phenomenon that is another consequence of the binary system at the heart of the nebula. These jets slowly change their orientation, precessing across the lobes as they are directed by the wayward motions of the binary system. Precession is a change in the orientation of the rotational axis of a rotating body.

The two stars at the heart of the nebula circle one another roughly every 100 years. This rotation not only creates the wings of the butterfly and the two jets, it also allows the white dwarf to strip gas from its larger companion, which then forms a large disc of material around the stars, extending out as far as 15 times the orbit of Pluto! Even though this disk is of incredible size, it is much too small to be seen on the image taken by Hubble.

Standing up to the Obergefellers (2) -- Responding to a Comment

My previous post about the sending of Kentucky County Clerk Kim Davis to a federal jail attracted a new commenter to this site. I refused to publish her first comment, since it violated the rules of civil discourse here, but I invited her to try again. And I am pleased to report that she succeeded -- perhaps beyond what she imagined, because I am going to do her the honor of devoting an entire new post to her second comment.

I do this, not only because she has now come here respectfully, and with lots to say about the substance of my post, but also because much of what she says is what is being repeated in the blogs on the Internet that object to what Kim Davis has done. So, in the interest of a full dialogue, here follows Lisa Coston's second comment, with my responses indented. She begins by picking up on this last comment from me, in response to her question as to how many marriage licenses Kim Davis must have denied to previously divorced persons, on account of her Christian faith (see the actual quote of her question, further below):

[Curmudgeon:] So now you're saying that she, individually, gets to define what is a proper marriage? The whole point is that she applies the definition of marriage passed by the State through its legislature -- and that definition does not limit marriage to those who have not been married before. You're confusing the "marriage" that churches will perform with the marriage that she swore an oath to license on behalf of her employer, the State.

[Lisa C.] No, it seems it is you that are confused about "marriage' that churches will perform with marriage on behalf of her employer, not me.

Well, I can see that we disagree as to who is confused, but beyond that, you do not explain your position further, so you have given me nothing to which to reply (except as you take up this subject again, later in your response as quoted below).

You don't need to remind me of Plessy v Ferguson, and, as you say it was 'upheld' by the Supreme Court. However, it was at the state level, where slavery and segregation laws had their genesis. Jim Crow ring a bell?

And your point is? (Again, I remind you that the post to which you are responding dealt not with the Supreme Court’s power to use the 14th Amendment to end segregation or racial discrimination, which is what we agree was the reason why the Amendment was adopted in the first place, but whether the 14th Amendment gave the Supreme Court the power to oversee the State’s traditional regulation of the family, including the power to define, recognize and license marriages performed in that State.)

As well, it was through the Supreme Court's decisions on those cases that turned it back around and struck down those laws--many based on 'Religious Liberty' arguments concerning how it was God's will to keep blacks and whites separate and unequal--but your argument seems to be that no matter what is decided at a federal level, the state's law trumps federal law.

No, that is not my argument. A law enacted by Congress pursuant to its enumerated powers under the Constitution trumps a State law on the same subject -- that is true, and I do not dispute it, because that is exactly what the Supremacy Clause of the Constitution says. But the Supremacy Clause says nothing about decisions (by only five of nine justices, no less) of the U.S. Supreme Court. Nor will you find anything in the Constitution, or prior legal precedent based on the Constitution, that grants the Court the power to redefine the concept of marriage for all fifty States. So a decision claiming to do just that is without precedent, and has to stand on its own -- which it cannot do. The Court is not a national legislature, and cannot enact laws binding on all 50 States. 

You also are forgetting that the Supreme Court itself, along with many States, played a disgraceful role in the  history of the treatment of slaves under the Constitution — read the Dred Scott decision. But you keep straying from the point of the main post, and want to argue the history of racial discrimination. How about addressing the precedents in history for allowing five of nine justices to define for the entire nation what “marriage” is? (Hint: you won’t find any, because the majority hoisted themselves into that claimed “power” by their own bootstraps.)

Oh, no, I'm not saying she, individually, gets to define what is proper marriage.

Let’s review what you actually said, shall we? Here is the entire quote of what you said on that subject, which you claim I “cherry-picked” from your earlier, non-publishable comment: 

"I wonder how many divorced individuals this 'martyr' has rejected for her faith?” 

Now, let’s analyze what you said: you imply that because Kim Davis refuses, due to “her faith,” to recognize (same-sex) couples that Kentucky State law does not recognize, she must also (at sometime in the past) have denied marriage licenses to couples where one or both of them had been previously married. You insinuate that because Jesus Christ himself said that “those whom God has joined together, let no man put asunder,” therefore she (in following Jesus) must have denied a Kentucky marriage license to (some) previously divorced applicants. Well: 

(1) Where is your proof of your claim? You simply insinuate it, in order (in your sight) to denigrate the Christian religion, without any factual basis for your claim as to what she  must have known about such couples in order, supposedly, to reject their applications “for her faith.” 

(2) Even supposing she wanted to deny such licenses according to her faith, how could she determine that the previous marriage was one of those where, through the vehicle of an official church marriage, God joined the couple together? (Answer: she couldn’t, without invading the couple’s privacy — and again, you have no factual basis for assuming that she must have done so.) 

(3) Look again at what Jesus is reported to have said: his words applied to those “whom God has joined,” not those whom the State joined. The majority of people getting marriage licenses, last time I looked, do not go for formal church ceremonies to bless their union. So again, why would you presume that Kim Davis would have acted on her religious faith to deny applications to people about whom she could know nothing except that they had somewhere, at some previous time, been married?

Had you not cherry picked my censored post,

Well, as you see, I did not “cherry pick” it — I quoted what you said on the point in its entirety.

you might take note of the fact that the whole point of this is that she certainly does not have the power to define marriage —

Good: then we agree on that point, at least. And please note: Kim Davis never, at any point in her public statements, claimed any such power.

--the contract, not the symbolic church ritual--as the Supreme Court ruling on those cases that had their genesis in the states say[ing] that it is now unconstitutional to deny a marriage license--a civil CONTRACT--to same sex couples.

Here again you conflate two entirely separate concepts: “a marriage license” is not the same thing as “a civil CONTRACT.” The license is what enables the State to recognize and enforce the civil contract. Many States, before Obergefell, allowed two persons of any gender to enter into a civil contract of union — but that was not enough, for certain activists. They wanted that “civil contract of union” to be festooned with the term “marriage” -- even though tradition (and the law) had always held otherwise. And when they could not persuade the Kentucky State legislature so to redefine its terms, they resorted to the federal courts — resulting in the Obergefallen travesty of what the law actually allows the Supreme Court to decide. (Sorry: my bad for using a religious-weighted term for what they did -- but the case's name invites it.) 

Traditional marriage — that is, the marriage recognized by churches — is more than just a contract between two parties. It is a covenant, solemnly sworn to by a man and a woman before God, in the presence of a Christian congregation as their witness, with the consequence that they agree to be held accountable for the vows they invoked God to bless. So again, I repeat: you certainly do not come here claiming that what the churches have always called “marriage” is what the Supreme Court calls “marriage” — I recognize that. But your comment, quoted above, implied that Kim Davis had at some time done so — and I deny, without “cherry-picking” you in the least, that you have any factual basis for that claim whatsoever.

Her religious liberty is not infringed upon at all. She is free, under the First Amendment, to practice her religion without fear of jail or punishment.

But she is not. Look at what happened to her: she was sent to jail for obeying her religious duty (because she is a Christian, and not just because she swore on a Bible) to honor the oath she swore (“so help me God”), on taking office, to uphold both the Kentucky and the United States Constitutions. (I remind you that you have nothing but Justice Kennedy’s word for it that the Constitution says anything about the definition of “marriage”, or about the Supreme Court’s authority to change local State laws that have always defined what that term meant.)

She is not free, under the Constitution, to impose HER religious views, while working as a CIVIL servant, to deny issuing a government license/contract to anyone, based on her religious beliefs.

You have the situation exactly reversed: it is the five Obergefalleners, and not Kim Davis, who are imposing THEIR secular views on what has always been the traditional State-law realm of the family, and the laws governing its recognition. Moreover, if your view is the correct one, then where were you (and those who agree with you on this point) when, as this article points out, so many of those officials the left claimed as its  own refused to perform their official duties when they were faced with marriage laws with which they personally disagreed? Why were they "heroic" then, but Kim Davis is so despised now?

Why is that the case? Because the Supreme Court's decision states that it is unconstitutional to deny same sex couples the right to have that government-based contract, called a 'marriage license' based on the 14th Amendment, whether you like it or not.

First of all, as I hoped would be clear by now, a civil marriage contract is not a "government-based contract," as you assert, but a government-recognized one. And the marriage license, I repeat, is not the same thing as the civil contract -- the former comes from the State, but the latter comes from the couple themselves, and the license precedes the contract. What they agree to (within the limits of the marriage statutes), the State agrees to enforce -- until divorce or death, whichever comes first. In no way is the marriage license "based on the 14th Amendment," because States issued marriage licenses long before that Amendment was ever enacted.  

 Next, what kind of argument is “whether you like it or not”? It doesn’t matter what I like or do not like. I am not the U.S. Constitution. Your assertion is that the “Supreme Court” decided what the Constitution “said” in this matter — but only five of the nine justices did. If the next justice appointed to the Court joins the Obergefell minority, then there goes your argument about what is “unconstitutional.” And that is why Supreme Court decisions interpreting the Constitution for everybody else should never be resolved on a 5-4 basis. 

Those four minority votes mean that the majority’s argument was extraordinarily weak, from a constitutional point of view, and hence could be reversed by the very next appointment. This is, of course, why Supreme Court appointments are now so political: it is because they themselves have made their roles political, through issuing decisions where five of them think one thing, and four of them think the opposite. It would have been far wiser of them to leave the whole subject to the States and their elected legislatures. (But that is exactly what those on the left do not do -- they resort to the courts to do the legislating instead.)

It seems that you are the one that fails to see that a church marriage is only symbolic. It's that government-issued license that makes your "marriage" legal, period.

See what I said above: Obergefell is not about church marriages — nor was my post. And you and I disagree as to whether the Kentucky government or the federal government has the ultimate right to define, under what are the actual word-for-word powers granted to the U.S. Supreme Court under the Constitution, just what makes a State-licensed marriage "legal."

No, what I meant about wondering whether the 'neo-martyr' in question has rejected previously divorced couples who seek a marriage license is because of what is also stated in the Bible about divorce. Nope, it's just same sex couples who are targeted.

See my responses above, Lisa — we seem to agree that Kim Davis has never rejected any applicants on the ground that they were previously married, and that she could not do so, given the Kentucky legislature’s definition of “marriage.” But if same-sex couples insist that Kentucky must include them in that definition — as a matter of federal constitutional law — then I say that you are using a non-existent federal power to redefine what “marriage” has to mean in Kentucky -- and in every other State. (What a power! To get five unelected lawyers to declare what fifty State legislatures have to do! No wonder those on the left crave it so.) 

You call what Kim Davis has refused to do “targeting.” Just because same-sex couples are insisting on having everywhere, throughout the fifty States, what some States, but not all, have through their elected legislatures chosen to grant them, the demand that all States do so, by virtue of some unspecified and never-before-existing “power” of the US Supreme Court to intervene in local family law, does not give birth to such a “power.” Nor can the understandable denial of that “power” (i.e., what was never -- under the Constitution's language and historical division of State and federal powers in their own spheres -- theirs to demand as a constitutional “right” to begin with) fairly or objectively be called a form of “targeting.” 

If I claimed the right, under the federal Constitution, to have a no-fault divorce (so that I could claim an equal division of the marital property) even though I was caught in the act of adultery, and the State denied me that right (by favoring my spouse in the division of property, under such circumstances), would you agree that the State was “targeting” me for discrimination? How does it make any sense even to employ such a term in the context of my unconstitutional demand?

* * * * * * {End of Lisa C.'s comment and my responses} * * * * * *

Again, I want to commend Lisa C. for being forthright enough to come back and defend her views without engaging in the ad hominem arguments that are never allowed here. This blog is a reflection of what I uphold in the practice of the law, and it will never exclude any civil commenter just because of the views they express, so long as they are on topic, in response to the main post.

Nor (I add -- unnecessarily, I trust) does this blog sanction bias or prejudice against those inclined to a same-sex orientation. It treats all humans alike, as Christ commanded that they be treated, as made in God's own image, yet also as far from perfect. Indeed, we are all fallen sinners in God's eyes, and all in desperate need of His saving grace through our Lord Jesus Christ -- and it is just this message that constitutes the good news ("gospel") of the Christian faith, commended and upheld unreservedly in these pages.

This blog, accordingly, does not exist to bend the actual text of Scripture to temporary cultural or human ends -- which is why it will never endorse same-sex "marriage", or join in what is a fundamental category mistake by those who cannot handle Aristotelian logic. The truth does not change with time, and Christians are charged with preserving the faith handed down to them from the saints. If those of a secular bent disagree, so be it: we will have to disagree. At least, however, we may do so here in a civil manner.

Standing up to the Obergefellers

The clerk elected by the voters of Rowan County, Kentucky, has been sent to jail by a Kentucky federal judge for refusing to perform an act which she cannot legally do under existing Kentucky state law, because five majority justices of the United States Supreme Court have ordered that the people of Kentucky must now consider their people-made laws amended by that Court's ukase.

What is wrong with this picture? The clerk is enforcing Kentucky law as written by its people represented through its legislature, not as five unelected jurists in black robes say by fiat that Kentucky law must be.

The Supreme Court's majority opinion in Obergefell v. Hodges this past June is a crudely written joke. It is a spoof of the law, a caricature of the law, because it does not even pretend to connect itself with, or to respect the traditional boundaries of, the jurisprudence of our federal system. Federal courts have no business "defining" (or "redefining" -- the very word assumes a power they do not possess under the Constitution) State law in local family matters.

And now it has resulted in its first jailed Christian victim.

The moderates (who always want to die on some other hill more distant than this one) say that Kim Davis (for that is the Christian clerk's name) should not confuse her official duties with her religious ones, and that if her religious duties interfere too strongly with her official ones, she should resign. (They can't force her out of her elected office unless they get the Kentucky legislature -- that bastion of State law that the five Obergefellers dismissed as incompetent -- to impeach her. Good luck with that.)

But in this case, Ms. Davis' Christian duty is to uphold her oath of office, in which she swore to support and defend both the United States and Kentucky Constitutions. Although Chief Justice Marshall once famously wrote, "The Constitution is what this Court says it is," that claim cannot stand unqualified. The Supreme Court, for example, could not say that the Constitution requires States to grant no-fault divorces, and I don't believe any constitutional jurist would defend that proposition (at least, not today).

So where exactly does the Constitution say that the States must license same-sex unions? It doesn't say that -- anywhere. The five Obergefellers made it up out of whole cloth, by stretching the words of the Fourteenth Amendment beyond their breaking point. Because if the Fourteenth Amendment can be used to impose same-sex marriage on the States, then it can also be used to impose no-fault divorce on the States. (I suppose the argument would be that States without it are discriminating against adulterers -- who, the ACLU would say, have their rights, too.)

By refusing to carry out an unconstitutional federal order, Ms. Davis is upholding Kentucky law as written by its legislature, and as her oath of office requires. And she gets to be true to her religious duties as well -- a bonus for those who are Christian.

This is not, as the ACLU and other secular henchmen would portray it, "Christians imposing their morality on the rest of us." This is a case of a Christian holding fast to her religion by refusing to cave in to a secular religion that is at odds with State law as written by the State's legislature. It is the Obergefellers and the ACLU-types who want to impose their own particular brand of secular beliefs upon the rest of us.

I pray for many more stalwart Christians like Kim Davis. (Another Kentucky clerk -- who shares her last name but is no relation -- looks like he, too, will stick fast to his Christian duties in the face of a jail threat.) Send all the Christians to jail for setting such an example for the rest of us! As Doug Wilson says in his fine piece about this donnybrook (which I commend to your attention), "If just ten governors treated Obergefell the same way Kim Davis is treating it, that entire unrighteous and despotic imposition would collapse and fall to the ground."

Amen. May it be so.

What Do Sarah Bernhardt and Marie Curie Have in Common?

That is a very good question. Until I read Mary McAuliffe's fascinating Twilight of the Belle Epoque (Lanham, MD: Rowman & Littlefield, 2014), I had no idea. And yet their unique stories united, for a time in World War I and following, in a manner that can still provide inspiration a century later.

Let us take the story of Marie Curie first. Born Maria Salomea Skłodowska in Poland in 1867, she came to Paris with her sister in 1891. There she pursued studies in physics, mathematics and chemistry at the University of Paris. A Polish professor introduced her to the French physicist Pierre Curie in 1894, when she was looking for a larger laboratory in which to carry out her researches. She and Pierre, with their tremendous shared interests, became romantically involved, and they married in 1895. She was determined to earn the first doctorate in France for a woman in physics, and fastened on a report on "uranium rays" by the French physicist Henri Becquerel which had been largely ignored. She acquired some samples of uranium for study, and her researches led to the discovery of what she herself named as "radioactivity", as well as two new elements: radium and polonium.

Fast-forward by twenty years: Pierre by then had joined in her explorations of the phenomenon, and the two had shared the Nobel Prize for Physics in 1903. But then Pierre's life was tragically cut short in 1906 as he was crossing a street in Paris, not paying attention, and was run over by a horse-drawn military wagon. Marie took over his position at the Sorbonne and carried on by herself, with their two young daughters. She was rewarded for her hard work by the creation, with Andrew Carnegie's help, of a national Radium Institute, whose laboratory she would direct for the rest of her life. In 1911 she received an unprecedented second Nobel Prize (in Chemistry) for the discoveries of radium and polonium, and she was encouraged in her work to find applications of radioactivity, through the use of X-rays.

World War I broke out just as Marie Curie was moving into the Radium Institute's newly constructed laboratory. After first seeing the nation's entire supply of radium -- one gram that she had painstakingly isolated -- moved to safety in Bordeaux, she returned on a military train to Paris, where she was determined to help in the war effort. She saw immediately that X-ray screens would assist military surgeons in treating broken bones, and in locating shrapnel and bullets in the bodies of soldiers wounded in action, and she went to work:

She convinced the government to empower her to set up France's first military radiology centers. Newly named Director of the Red Cross Radiology Service, she wheedled money and cars out of wealthy acquaintances. She convinced automobile body shops to transform the cars into vans, and begged manufacturers to do their part for their country by donating equipment. By late October 1914, the first of 20 radiology vehicles she would equip was ready. French enlisted men would soon dub these mobile radiology installations, which transported X-ray apparatus to the wounded at the battle front, petites Curies (little Curies). [The van's engine was used to generate the electricity to power the X-ray apparatus.] 

Although Curie had lectured about X-rays at the Sorbonne, she had no personal experience working with them. Intending to operate a petite Curie herself if necessary, she learned how to drive a car and gave herself cram courses in anatomy, in the use of X-ray equipment, and in auto mechanics. [She learned how to change a tire, to clean a dirty carburetor, and to deal with all sorts of breakdowns while at the front.] As her first radiological assistant she chose her daughter Irène, a very mature and scientifically well-versed 17-year-old. Accompanied by a military doctor, mother and daughter made their first trip to the battle front in the autumn of 1914.

This “petite Curie,” which brought X-rays to the Front in World War I, was displayed in Paris in 1998 during the commemoration of the 100th anniversary of the discovery of radium.

Marie and Irène alone, eventually working with other nurses they trained, saved or bettered the lives of thousands of soldiers with the increased certainty their X-rays gave on the spot to field doctors. But in the process, Marie and Irène overexposed themselves to the radiation they had harnessed. Little was known at the time about the adverse effects of radiation, and when Marie came down with double cataracts just after the war's end, she did not immediately trace the cause to her lengthy exposure to X-rays. Her health never was fully restored, although she managed to work in her laboratory for  another fourteen years, and make two trips to America to raise funds for her research. She died in 1934 of a pernicious anemia which her depleted bone marrow could not fight any longer.

And what of Sarah Bernhardt, who was Marie Curie's elder by 23 years? Marie was still in her teens by the time that Sarah had become France's leading stage actress. She developed a unique style that managed to convey to audiences the character, as well as the emotions, of the figures she portrayed.

Bernhardt developed her own emotional romantic acting style based on her lyrical voice (known as the “golden voice”), calculated nervous action and the subversion of her viewers’ expectations concerning her characters, disclosing strength in weakness and weakness in strength. Accordingly she impressively acted travesti roles such as Zanetto in Le Passant and later Shakespeare’s Hamlet. Yet as the author Elaine Aston has noted, the essence of Bernhardt’s performance was pictorial. She sculpted and drew with some success, exhibiting at the Salon at various times between 1876 and 1881. In 1880 she also exhibited a painting there. Yet her finest skill was projecting her emotional poses into unforgettable tableaux. She made sure that her appearance would echo masterpieces (for example, playing Théodora dressed similarly to the Empress Théodora in the mosaic murals in Ravenna), or would be marketed as such, through oil portraits, posters and photos of key scenes, as were her portrayals of Fédora and Marguerite Gautier in La Dame aux camélias. The famous photo by Melandri of Bernhardt, lying dressed in white with closed eyes in a coffin, echoing the painting of Ophelia by Sir John Evertt Millais (1829–1896) and La jeune martyre by Paul Delaroche (1797–1856), was meant to promote her favorite tableaux of dying heroines such as Marguerite, Fédora and Adrienne falling lifeless into the arms of their lovers.

Sarah Bernhardt as Lady Macbeth

She became an international sensation; Oscar Wilde wrote his play Salomé in French for her (the play is the source for the infamous "Dance of the Seven Veils").  She made countless tours -- to England, to America, and to South America, and brought her art to hundreds of thousands. (Thanks to the Library of Congress, you can watch at this link some brief -- but alas, silent -- footage of when she spoke at a rally in Brooklyn's Prospect Park in 1917 to encourage America to join the War.)

By the time World War I broke out, she was turning seventy. Due to a knee injury she had suffered in performing a play some years earlier, her right leg went into a cast, gangrene developed, and she had to have the leg amputated above the knee. She tried a wooden leg, but found it so cumbersome that in a rage, she cast it into the fire. She refused to use crutches or a wheelchair, and instead had an elegant sedan chair designed for her, from which she thereafter made all her public appearances.

Nothing daunted, she was determined to do her part for French troops in the war, and arranged to be carried to the front.

A group of young actors from the Comédie-Française accompanied her, skeptical that she would last more than a day. Soon they were left gasping in admiration of her stamina and pluck. At their first performance, Bernhardt's dressing room was a small lean-to with an earthen floor. She was delighted with it. Their stage was a platform reached by a ten-rung ladder; Bernhardt made little fuss and simply directed her associates to hoist her up, depositing her in an old armchair. She faced an audience of three thousand young men who, for the most part, had never heard of her and who were completely unimpressed by her appearance. She proceeded to do what she had always done, win them over. "With a rhythm that surged like the sounding of the charge," she evoked the glories of those throughout history who had died for France. And then, maintaining the same driving cadence, she culminated in a final cry, "Aux armes!", which brought them, cheering, to their feet.

Her courage, "which laughed at adversity," and her triumph of the spirit over frail flesh "changed our pity into admiration," one of her fellow actors later recalled. Of all Bernhardt's many triumphs throughout a lifetime of achievements, it was this last act that stood out above all: this "old woman of genius, who clumped along on her poor leg and in her little sedan chair, to give her blazing heart and valiant smile to the men who were suffering for us."

[McAuliffe, at 298; quotes taken from Béatrix Dussane, Reines de Théâtre, 1633-1941 (Lyon, France: H. Lardanchet, 1944).]

It is beyond peradventure that at some point in their travels to the front, albeit on such different errands, Marie Curie and Sarah Bernhardt crossed paths. I like to think of Bernhardt and her entourage of handsome young actors stopping to help Marie Curie change a flat tire, for example, only to hear Marie tell them: "That's all right -- I can handle this. You have more important work to do."

However their paths may have crossed during the Great War, they were to cross one more time before Sarah Bernhardt succumbed to uremia in March 1923. For just six months earlier, in October 1922, she had given one last benefit performance, acting in Verneuil’s Régine Armand. The cause for which she was raising money? It was none other than the equipping of Marie Curie's laboratory in Paris.