About that Ninth Circuit Opinion

First: Like the original non-decision by Federal District Judge James L. Robart, the 29-page order by the Ninth Circuit on Thursday does not qualify as a genuine decision on the law. Neither one of them cites or discusses the basic statutory authority for the President's Executive Order. They simply brush right past his authority in order to reach conclusions on issues that are really beside the point until one has addressed the scope of the President's powers in this area -- which are about as extensive as they can be. (See this article for a full explanation.)

Second. Although upholding the States' standing on a very narrow ground involving attendance / employment at State universities, the Ninth Circuit panel ignored US Supreme Court precedent that requires that a plaintiff demonstrate standing for all of the claims being asserted. (See the author's second point in the article just linked.) The States had no basis in fact whatsoever to present claims on behalf of foreign refugees seeking to come here; nor did they have standing to argue on behalf of other aliens who had no university-related visas (the vast majority of aliens affected by the EO). That fact did not stop either court from ordering a halt -- nationwide -- as to either the 90-day ban (for aliens from seven countries) or the 120-day ban on refugees.

Third: "Could the President have issued an order that simply banned all Muslims?" asked Judge Canby of the panel. The question was irrelevant to the issues actually involved, since the EO nowhere uses the word, and as even another member of the panel pointed out, it still allowed in the vast majority of the world's Muslims. Moreover, whether one practices Islam is beside the point -- no one has ever urged keeping an alien out based on his or her professed religion. The question displays a basic liberal confusion between the religion of Islam (whose followers are called "Muslims"), and the (non-religious, at least in my book) doctrine of jihad against infidels, which sanctions terrorism. Most of the jihadis who engage in terrorism will tell you that they are also Muslims -- but again, that is why one would not want to define terrorists by the religion they profess. The EO was aimed at seven specific countries that sponsor and inculcate terrorism. It was thus not aimed at any religion per se, but at specific places of origin. The made-up issue of "religious discrimination" in the EO is a giant red herring, designed to mislead. And it certainly sucked in the panel, right along with Judge Robart.

In sum: One could say the courts told the executive branch: "You are (probably -- since this was just a TRO) guilty of overreaching. Under our system, only the courts can overreach. We can stop you, but you can't stop us."

Or perhaps Ben Stein of the American Spectator says it best of all:

What that court did on Thursday was the equivalent of Japan suing FDR in 1941 saying that if the USA went to war against Japan many Japanese would be killed and wounded. Therefore, Japan argued, the due process rights of the Japanese would be violated and the court must enjoin the U.S. going to war. Incredibly, this court in Seattle said Thursday that foreigners who were neither citizens nor residents had due process rights against the USA. This is obvious nonsense.

Yes, the EO was poorly considered, poorly drafted and poorly implemented. But the response to it by our judicial branch has been simply disgraceful. No one involved in this sorry spectacle has any reason to be proud of what they did. And there is no reason at all to continue the circus for one moment longer.

May better days be ahead.

A Taste of Their Own Medicine?

The ever-litigious bunch at 815 Second Avenue, the New York headquarters of ECUSA, may be getting a taste of their own medicine. Or it may just be a case of litigation inculturated beyond the point of no return: the litigators at ECUSA have been sued by the Rt. Rev. Stacy Sauls, one of their own (and a former lawyer in his own right), who worked there as Chief Operating Officer until the Presiding Bishop terminated him last April.

The complaint, unusually filed in Alabama's Mobile County Circuit Court (see remarks below), makes for an absorbing read (or maybe that's just a lawyer talking): you may download it here. (A big tip o' the Rumpolean bowler to The Living Church, which first broke the story.) It names ECUSA and its corporate arm, the DFMS, as defendants, along with 30 unidentified "John Does", who allegedly participated in some manner in the actions alleged.

Herewith are some pertinent extracts, with my annotations in between:

6. Bishop Sauls has served in a number of leadership capacities in his career in the Episcopal Church. For more than four years, he served as the Episcopal Church’s Chief Operating Officer, under two Presiding Bishops. Both of those Presiding Bishops have praised his work performance. In the annual performance evaluations of Bishop Sauls, The Most Rev. Katharine Jefferts Schori, by whom Bishop Sauls was appointed Chief Operating Officer, complimented his “creative and deeply effective leadership as COO”. Bishop Jefferts Schori’s successor, The Most Rev. Michael B. Curry, who took office in November 2015, has stated publicly that DFMS was never more effective than under Bishop Sauls’s leadership.  

7. Sauls, however, is the victim of a wrongful conspiracy via a calculated, determined, and prolonged series of acts in furtherance of the conspiracy, as carried out by individuals employed by the Church, and others outside the employment of the Church, who repeatedly have attacked the office and person of Chief Operating Officer, including by measures calculated to undermine the authority, stature, and leadership of the Plaintiff and his former office, as part of a scheme to elevate the stature and authority of the President of the Church’s House of Deputies and to constitute that position as an office to be regarded and treated, in respect to Church governance and the exercise of authority over the staff and resources of the Church, as co-equal with the office of the Presiding Bishop.

Got that? Bishop Sauls is alleging that he lost his position due to "a determined and prolonged ... conspiracy ... to elevate ... the President of the ... House of Deputies ... as co-equal..." That would be the Rev. Gay Clark Jennings, who indeed is named in the next paragraph.

I won't copy all the details of that and the next five paragraphs, but will just summarize them. According to Bishop Sauls, the Rev. Jennings and her (unnamed) cohorts in 2014 twice accused him of official misconduct, but he was exonerated each time following two costly ($500K!) outside investigations, plus another internal one. Nothing daunted, the conspirators then introduced legislation (horrors!) at GC 2015 to change his position to one that serves at the will of the Executive Council, instead of at the will of the Presiding Bishop -- but that legislation also went nowhere.

Nevertheless, the attacks by the Rev. Jennings resumed as soon as new Presiding Bishop Michael Curry assumed the duties of his office late in 2015. Paragraph 14 of the complaint gives some small inkling of what may have been irking the President of the HOD (my bold added for emphasis):

14. In particular President Jennings attacked, as she had on numerous previous occasions, a policy instituted by Bishop Sauls requiring that every DFMS staff member notify him, as COO, or the Deputy Chief Operating Officer, of any contact or communication received by any such person from any member of the Executive Council or from the President of the House of Deputies.

It appears as though Bishop Sauls was running a very tight ship at 815 (as he is reported to have done when he served as Bishop of Lexington, before coming to New York). He wanted to know about every single contact that the Rev. Jennings or any member of the Executive Council made with any of his staff. And perhaps that was one straw too much for the determined Rev. Jennings:

15. The John Doe Defendants’ wrongful conduct persisted into late 2015 and 2016, when new false charges prompted yet another investigation of alleged misconduct by Bishop Sauls. The objective again was to attack Bishop Sauls, for the further purpose of elevating the authority of the President of the House of Deputies over the Presiding Bishop. Such an alteration in the governance of the Church, in Bishop Sauls’s view, would have far-reaching and extremely harmful consequences for the Church, impairing and impeding the ability of its leadership to carry out their management functions and mission of the Church.

The outlines of the turf battle at 815 are now clear. By way of background, the reader is reminded that rivalry between the Presiding Bishop and the President of the House of Deputies goes back to the relationship between former Presiding Bishop Katharine Jefferts Schori and former HOD President Bonnie Anderson -- over issues of turf and budget. (Notice how Bishop Sauls makes an appearance in that latter story, as well.)

The details of putting the conspiracy into action, leading up to the suspension and eventual dismissal of Bishop Sauls by the Presiding Bishop, are alleged in paragraphs 16 through 25 of the complaint. Along the way, the chief litigators for ECUSA, David Booth Beers and Mary Kostel, make brief appearances -- such as this one (from paragraph 16, with my emphasis added):

In November and early December 2015, during a meeting of the Presiding Bishop’s Council of Advice, the Chancellor to the Presiding Bishop, David Booth Beers, a lawyer in the Washington, D.C. law firm of Goodwin Procter LLP, commented on upcoming disciplinary matters, stating that there were two such matters that “would be ugly.”

(Note that word "disciplinary," when as we shall see, ECUSA never brought any disciplinary charges against Bishop Sauls.) And then this confrontation is alleged:

18. At the noon meeting [on December 9, 2015], Mr. Beers told the Plaintiff and his colleagues that the allegations against them were grim and serious, including charges of racism, sexism, retaliation, sexual harassment, and creation of a hostile workplace. Mr. Beers and Ms. Kostel declined to provide any details. According to Ms. Kostel, the charges were “too inchoate” for the Church to be able to say anything more, but were “choate enough” to warrant placing the three on leave and under investigation. Mr. Beers warned that the Church planned to engage an independent investigator, and that the Presiding Bishop wanted the investigation concluded quickly. Mr. Beers ordered Bishop Sauls to exit his office by 5:00 p.m. on that day, and return his office access key card, barring him from TEC premises. In an attempt to further frustrate any search for the truth, Mr. Beers instructed Bishop Sauls to have no further contact with any officers, employees, or staff of DFMS.

[Note: I love that resort to the non-existent word "choate" as a supposed antonym for "inchoate". Ms. Kostel apparently never argued a case in front of Justice Scalia.]

This is conduct we have all become familiar with, through many posts here about ECUSA's litigation tactics. Bishops swoop into parishes, fire the vestry, order the rector out, change the locks, and most often do so without warning or explanation. The irony should not be lost -- now the friendly folk at 815 did it to three of their own! And still without providing any details or explanation to the victims!

The remainder of the allegations have to do with the attorneys for the parties jockeying over the wording of the public statements that the Church released -- first in December, when the suspensions of Bishop Sauls and two of his staff were announced, and then in April of this year, when their terminations were announced after an arduous investigation. It should be noted that although the investigation exonerated Bishop Sauls of all charges, he alleges that to this date he has never been informed by anyone at 815 just what the charges against him were. As a result, he alleges, ECUSA's highly public announcements gratuitously ruined his reputation.

One last, telling detail from the complaint (paragraph 26, with my emphasis):

The Presiding Bishop offered no explanation for this decision [to dismiss him] other than remarking to Bishop Sauls, during a private meeting between them on April 4, that “things are too broken,” and that “there were people who wanted your head.” At the outset of their meeting, one of the first things that the Presiding Bishop said to Bishop Sauls, was: “Stace, you’ve been through hell,” a characterization that the Plaintiff then considered, and continues to consider, as a gross understatement of what he had endured.

The complaint asks relief from the court for (1) breach of contract (i.e., the Employee Handbook at ECUSA); (2) libel and slander against him; (3) failure to reimburse his attorneys' fees and expenses incurred as a result of the investigations, which exonerated him; and (4) intentional interference with his prospects for future employment in ECUSA.

Paragraph 48 indeed contains a litany of seven positions for which Bishop Sauls has subsequently sought employment, only to be turned down -- including even by "a small parish with average Sunday attendance of about 30..." (!). He alleges that his difficulties in landing a job are due to all the bad conduct by 815 in publicizing anonymous charges before they were even investigated, with such resulting damage to his reputation that anyone Googling his name will not want to hire him. (Well, Google does tell quite a tale -- not all of it, however, related to his time at 815, but even going back to his tenure as Bishop of Lexington.)

It is very unusual for a complaint like this, involving a New York resident against a New York religious corporation, to be filed in a circuit court of Mobile County, Alabama. The complaint explains (paragraph 44) that as a result of the accusations against him, Bishop Sauls hired a southern law firm whose Mobile, Alabama office ran up most of the bills for which he is seeking reimbursement. (Notably, they are not his attorneys for the lawsuit -- perhaps because their earlier bills have not been paid.) Because ECUSA operates in all 50 States it of course may be sued there, but it remains to be seen whether the Alabama court will find sufficient connections there to entertain the suit. (Watch for ECUSA's attorneys to file a motion to dismiss the case to force the plaintiff to refile it in New York.)

The complaint is notable for other things which it does not say. In particular (presumably because Bishop Sauls maintains ECUSA has never disclosed the basis for the charges against him), there is no mention of the infamous hidden tape recorder incident. That discovery came at a meeting of the Executive Council, held just three weeks before the suspensions, when the Council went into executive session (without Bishop Sauls or other staff present) to discuss, among other things, the amount of housing allowance to be given to clergy on ECUSA's staff, including Bishop Sauls). Despite the close proximity of that incident to the suspensions, the only indications the complaint gives of the charges brought are the ones quoted in paragraph 18 above.

So what does all this amount to? There are a number of preliminary observations that can be made.

It is impossible to escape the intent of the complaint to portray the Rev. Gay Clark Jennings as a major schemer and conspirator in the downfall of Bishop Sauls. It is understandable that he does not want to lay charges against his former boss, but the allegations made in the last paragraph I quoted above give the appearance of a Presiding Bishop who has surrendered to the forces with which he is contending, and is not fully in charge as the chief executive.

Essentially, as per Bishop Sauls, the President of the HOD wants to function in ECUSA's polity as a "co-equal" with the Presiding Bishop (see paragraph 7 quoted above). Doing so means commandeering more of the national budget, and adding to her staff. Those designs brought the Rev. Jennings directly into conflict with Bishop Sauls, whose job was to oversee the executive portion of the budget, and whose power, prestige and authority could be undermined by any diminution in the stature of Presiding Bishop or his office.

It is also to be noted that in their joint statement to the staff at 815 about the lawsuit, Presiding Bishop Curry and President Jennings allude to the fact that they tried to buy off Bishop Sauls with a "good faith and compassionate [severance] offer, [which] was not accepted. The Presiding Bishop, as a steward of church resources, felt that he could not go beyond that offer and explain it in good conscience to the church." (Well, how does Bishop Curry feel now about having to explain all of these unsavory allegations to his flock?)

Compassion at the top, in other words, goes only so far -- but the fact he received no severance package or reimbursement is why Bishop Sauls appears now to have to reckon with a large unpaid legal bill. And that may well have forced his hand in bringing the lawsuit.

So in the end, as with so many other things involving ECUSA these days, it's all about money. The good folk at 815 spent probably around a million dollars on outside investigations of Bishop Sauls -- three times -- without a single result. But they could not provide enough of a severance package to prevent the airing of some rather unsightly laundry, and would rather spend more of their trust funds on fighting a lawsuit. And this is an organization that still styles itself a Christian church.

Exacerbating Disunion

This is ostensibly a blog covering matters Anglican, but the news from that front has been so desultory that till now I have refrained from writing about it.

Essentially, the Anglican Communion is sundered, and is no longer accurately described as a "Communion." It should be restyled "the Anglican Disunion."

There is no single cause of the brokenness, but certainly one major cause has been the lawlessness of ECUSA. (That is one acronym for what was formerly the Episcopal Church of the USA, of which I was once a regular member; it also referred to itself as "TEC." Now those initials -- for me, at least -- stand only for the words "The Episcopal Congregations [in the USA]", since a denomination that has made blasphemy part of its official rites is no longer entitled to be called a church).

Those who need more background will find at this page links to all the previous posts here describing the breakup process.

A year ago January, as reported in this post, the Archbishop of Canterbury managed to gather most all of the Anglican Primates at his see for a discussion about the state of the Disunion. The outcome of that discussion was an agreement "requiring that for a period of three years The Episcopal Church no longer represent us on ecumenical and interfaith bodies, should not be appointed or elected to an internal standing committee and that while participating in the internal bodies of the Anglican Communion, they will not take part in decision making on any issues pertaining to doctrine or polity."

Just three months afterward, the Anglican Consultative Council (a deliberative body in which lay persons, clergy, bishops and Primates all take part as elected representatives of their respective denominations) held its sixteenth triennial meeting in Lusaka, Zambia. Representatives from ECUSA attended, but refused to honor the Primates' requirement to abstain from certain deliberations of the Council having to do with "doctrine or polity." Nor did the Council bar them from doing so.

The Episcopal delegates not only refused, but they gloated about the Council's refusal even to consider the Primates' requirement. In an open letter they sent to ECUSA after the meeting, which was published in the official Episcopal News Service, they reported that although Archbishop Welby had communicated the results of the January meeting to the Council, "ACC members seemed to have little energy for answering the primates’ call for consequences".

(Needless to say, a number of the Primates not in attendance at ACC-16, including mainly the ones affiliated with the organization known as GAFCON, treated this "lack of energy" as a personal betrayal of them by the Archbishop of Canterbury. He has constitutional authority over the ACC as its permanent President, and certainly could have brought their requirement up for a vote. Instead, he simply mentioned it in his report to the ACC, and failed to push it after that.)

Thus just as they flouted Resolution 1.10 from the 1998 Lambeth Conference in 2003, when they approved the consecration of Bishop V. Gene Robinson contrary to that Resolution, and just as they have repeatedly, in the years since, rejected all calls to change their course, ECUSA is determined to walk apart from the former Communion while keeping up the pretense that their actions have not turned it into a Disunion. ("How could it be a 'Disunion'?" I hear them asking. "We still attend all its meetings!")

Not only do they insist on exercising their full authority and rights when it comes to participation in Anglican-wide affairs, but they rub it in the GAFCON Primates' faces every chance they get. For instance, Archbishop Welby has invited all Anglican Primates (with the exception of ACNA's, whom he had invited the previous year) to another meeting at Canterbury next October. Just last week, the official news organ of the Anglican [Dis]union published a story about his invitation, and his expectations for the meeting. In the process, they rather loosely characterized ECUSA's actions at ACC-16 in Lusaka (by serving up what is called "Anglican fudge" to describe what happened).

The ECUSA delegates to that meeting issued a response challenging the story's accuracy, and ACNS had to add some further explanation by way of making the fudge thicker. (See the updated story here, and the explanation at the end. What ACNS added is the last sentence to the next-to-last paragraph.)

The upshot is that ECUSA once again saw to it that the other Primates were told in no uncertain terms that ECUSA had never yet acceded to their demands, and was not about to change its course.

Needless to say, the GAFCON Primates (who had already signaled that they would be unlikely to accept Archbishop Welby's invitation, in view of what they saw as his betrayal, above) were amused neither by ACNS's waffling, nor by ECUSA's response.

Where are we, then? Nothing really has changed since last January. There is supposedly a "Task Force" at work trying "to maintain conversation among [the Primates] with the intention of restoration of relationship, the rebuilding of mutual trust, [and] healing the legacy of hurt . . ." It met last September and according to the ACNS story linked earlier, is due to meet again this year.

Well, as they say, good luck with that. For the Archbishop of Canterbury decided to try to keep the conversation going by appointing ECUSA's Presiding Bishop to the Task Force. Doubtless that was an act of good faith taken just after the meeting last January, after the Primates had agreed (in their Statement just linked) on their "unanimous desire to walk together."

But that desire to walk together was expressed before ECUSA and its ACC delegates -- once last April, and now again just last week -- reiterated their determination not to yield one inch, to walk apart, and to stick it to the other Primates who had called for ECUSA's discipline.

It's a little hard to carry on a dialogue when one of the parties continually shouts the others down, and rejects any consensus.

When the Primates representing a majority of the world's Anglicans do not show up for the ABC's meeting next October, the ones who do attend will probably express regret at the absences, and then go on with their meeting. They will not, however, hold ECUSA accountable for the breakup it has caused.

And by rights, of course, if both the ABC and ECUSA's Presiding Bishop were to abide by the requirements laid down last January, then Archbishop Welby should not have invited the Most Rev. Michael Curry to attend this year, and the latter should not accept the former's invitation. But he will -- so ECUSA's defiance of the agreement reached at the Primates meeting last January, and the ABC's betrayal of his colleagues, will continue right into October and beyond.

The separation will by then be a fact of life, and each side will thereafter just meet on their own. As foretold long ago by the Primates who met in an urgently called session in London in October 2003:

To this extent, therefore, we must make clear that recent actions ... in the Episcopal Church (USA) do not express the mind of our Communion as a whole, and these decisions jeopardise our sacramental fellowship with each other. . . If [Bishop 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, and may lead to further division on this and further issues as provinces have to decide in consequence whether they can remain in communion with provinces that choose not to break communion with the Episcopal Church (USA).