The Coming Donnybrook of January 6 (Part I)

 The results of the presidential election are now largely encapsulated in the cocoon created by our media. Any attempt to say something contrary to the official line, or to question what happened in the swing States, is met with censure, calumny, condescension, contempt, or censorship. 

We are, in short, on a predetermined one-way track to (un)Democratic dominance of our national life. If challenges to the fraudulent balloting (that by now is unquestionable by reasonable observers) are dismissed or swept under the rug, this country will never be unified again under a single system of government.

President-elect Biden (who famously proclaimed last summer "I don't need you to get me elected", and "We have put together . . . the most extensive and inclusive voter fraud organization in the history of American politics") campaigned as though he knew the election was already rigged in his favor. He stayed largely in his basement in Delaware, and no rally among those he occasionally staged attracted more than fifty people, at best. Yet Americans are being asked to believe that this cipher, this incoherent nonentity, managed to haul in more votes than any other American presidential candidate in its 231-year history.

No rational mind can buy this now "official" line, and your Curmudgeon will not entertain here any propaganda in support of it. But for those of us who react similarly to what we are being force-fed in the media, I want to spell out our options before the next inauguration on January 20, 2021. For that is the date written in stone in our Constitution, since the adoption of the 20th Amendment: the current terms of both President Trump and Vice President Trump end at noon on that day, regardless of what may take place beforehand.  

Before there can be the start of a new presidential term of office on January 20, however, there must first be a validated election of a successor president under the Constitution. Those procedures are spelled out mostly in Article II, Section 1 of the Constitution, as supplemented by the Twelfth and Twenty-fifth Amendments. Those provisions, however, provide only a bare minimum for the process, and leave many possibilities unaddressed, or open to interpretation.

Since the Constitution was first adopted in 1789, presidents and Vice Presidents have been elected through a mechanism known as "the Electoral College", defined in Article II, Section 1, as subsequently amended in 1804 by the Twelfth Amendment:

[Article II, Section 1:] Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[Amendment XII:] The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

The language of the Twelfth Amendment was intended to prevent a repetition of the spectacle of 1800, when the more numerous ("Democratic-Republican") electors voted in equal numbers for Thomas Jefferson and for Aaron Burr as their candidates. The language of Article II, Section 1 at the time required a tie vote between the top two contenders to go to the House of Representatives for a final resolution of who would be president, a process that Jefferson narrowly survived. The ensuing adoption of Amendment XII required electors to vote separately for president and vice president, thereby preventing a repeat of the mistake of 1800, but it left open many questions that would arise out of the evolution of a country dominated by two primary factions, or "political parties".

For example, a key provision of the Twelfth Amendment reads: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted . . .". Why the passive voice, all of a sudden? Who is specifically granted the authority to count the votes of the various electors? Is it the President of the Senate -- who by the Constitution is the current Vice President (and so will, in many cases, be a candidate)? Or is it the separate Houses of Congress, who will come together on January 6, in 2021 -- but not as a joint body -- solely for that purpose?

It turns out there is considerable history and debate on this point. In this series of posts (because it is an intricate subject), I want to go carefully through that history and determine whether it is possible to conclude upon a definitive path through the morass that has accumulated around it. For whatever else may be foreseen at this time, it seems obvious that gathering of the two Houses on January 6, 2021 to count the votes of the Electoral College will not be free from strife and dispute, however much the Washington establishment may wish that it be otherwise. The blatant fraud that is being swept under the rug with each passing day guarantees that many Americans will not accept Congress' proceeding as though nothing had happened: its members who try to do so will put themselves at the peril of their seemingly secure seats in 2022 and afterwards.

For an excellent introduction to this knotty topic, I can do no better than refer the reader of this post to this amazingly prescient article (written in 2019) by Prof. Edward B. Foley, who teaches election law at the Ohio State University Moritz College of Law. Entitled "Preparing for a Disputed Presidential Election", the article (which does not shy away from detail) begins with this scenario:

It is Election Night 2020. This time it is all eyes on Pennsylvania, as whoever wins the Keystone State will win an Electoral College majority. Trump is ahead in the state by 20,000 votes, and he is tweeting “The race is over. Another four years to keep Making America Great Again.”

The Associated Press (AP) and the networks have not yet declared Trump winner. Although 20,000 is a sizable lead, they have learned in recent years that numbers can shift before final, official certification of election results. They are afraid of “calling” the election for Trump, only to find themselves needing to retract the call—as they embarrassingly did twenty years earlier, in 2000. Trump’s Democratic opponent . . . is not conceding, claiming the race still too close to call. Both candidates end the night without going in front of the cameras.

In the morning, new numbers show Trump’s lead starting to slip, and by noon it is below 20,000. . . .

From this very perspicacious beginning, Prof. Foley draws out a detailed analysis of just what could go wrong in the recent election, which covers all the potential events following the meeting of both Houses of Congress to count the votes of the Electoral College. Much of his analysis is spot on for today's purposes.

As he stresses in his article, however, there is much that is uncertain about how the post-election scenarios could play themselves out. A good deal depends upon how each House of Congress decides to follow (or interpret) the Electoral Count Act of 1887 ("ECA"), which was enacted after a lengthy debate that took up eleven years following the electoral crisis presented by the contested results of the 1876 presidential election. Those results offered competing slates of electors from the States of Florida, Louisiana, Oregon and South Carolina -- with no mechanism spelled out in the Constitution (or the Twelfth Amendment) for deciding which slate's votes should be counted by Congress. In the end, Congress punted the dispute to a fifteen-person "Electoral Commission", which resolved it (by one vote) in favor of the Republican candidate, Rutherford B. Hayes. 

The Democrats then cut a deal with the nominee Hayes: they would not oppose his election as President if he agreed to withdraw all federal troops from southern States and thereby put an end to the (so-called) Reconstruction which those troops were enforcing. Hayes did just that, but the cloud over the back-room resolution of his election confined him to just one term in office, and earned him the dubious epithets of "Rutherfraud" and "His Fraudulency".

The ECA has not been applied in any election since, although the election of 2000 (terminated by the 5-4 edict issued by the Supreme Court) was a close call. The circumstances of the current election, however, make it almost certain that the two Houses of Congress (the Senate controlled by Republicans, and the House by Democrats) will clash over the application of the ECA when they meet on January 6, presided over by Vice President Pence, in his constitutional role as President of the Senate. (Remember: although the new terms of members of Congress begin on January 3, 2021, the terms of the President and Vice President do not expire until noon on January 20.) For that reason, if not any other, it is imperative that each intelligent citizen should be informed about the issues at stake, given the massive disagreement among voters about the validity of the present election results.

My subsequent posts in this series are designed to provide readers with the tools they need to follow the developments in this story as they unfold -- stay tuned for more.

A December Sky Show with Jupiter (Again)

 For those who have never observed a close conjunction of planets in the night sky, the upcoming winter solstice will offer a show whose parallel will not occur again until 2080: a grand conjunction between Jupiter and Saturn. Watch this video to learn where to look and when, in your particular vicinity. (You can also learn something about the Geminid meteor shower, and receive a good explanation of what happens at the winter solstice.)

This blog has always been fascinated by connections between science and the Bible. Since it is the season of the Nativity, it is perhaps time to remind readers of my Christmas post in 2009, which laid out what I believe is the best astronomical explanation for the phenomenon called the Star of Bethlehem. You can also delve, if you are so inclined, into the detailed mathematics behind the frequencies (and in some cases, the rarities) of planetary conjunctions. I have updated and checked all the links, and the Starry Night videos all appear to be working (give them time to load before trying to run them) -- so have at it! A very merry Christmas to all!

The Best Thing of All about 2020

 If 2020 has been an annus horribilis thus far, then surely the best thing about it is now upon us: it marks the 250th anniversary of the year of the birth of Ludwig van Beethoven (1770-1827).  December 17, 1770 is when he was christened, according to local parish records in Bonn. His actual birthday could have been at most a day or two earlier (those staunch Protestants -- and Catholics -- did not waste a moment in getting their infants properly baptized in those days, due to the high rates of infant mortality). Traditionally, therefore, the day which Beethoven himself celebrated -- December 16 -- has been accepted as his birthday.

This blog has always had a special interest in Beethoven, since his great Eroica Symphony (No. 3, op. 55, in E-Flat Major) was the subject of my honors thesis for the Music Department at Harvard, which in 2018 I greatly expanded and published as a book:

This is a short summary, which appears on the back cover:

In the fall of 1802, Beethoven’s anxiety over his loss of hearing reached a crisis point.  Deafness would mean he could no longer play or perform in public, and also would have to withdraw from Viennese society.  For a gifted composer filled with good will towards his fellow men, this was the most unjust punishment of all.

While composing a ballet score in 1801, Beethoven had absorbed the legend of the Titan Prometheus.  To punish him for stealing divine fire and bringing it to men, Zeus had Prometheus chained to a rock, where each day an eagle gnawed out his liver.  Prometheus regenerated himself overnight, refused to buckle under to Zeus, and endured until Hercules set him free.

This book documents the little-known story of how Beethoven drew inspiration from Prometheus’ example.  Transforming the music he wrote for the ballet, he surmounted his deafness, broke free of the classical mold and composed the Eroica Symphony, a masterpiece which changed the course of music forever.

For some of the previous blog posts in celebration of Beethoven, please follow these links:

https://accurmudgeon.blogspot.com/2014/12/beethoven-benedictus.html

https://accurmudgeon.blogspot.com/2010/12/untold-story-of-beethovens-eroica.html

 

 

 

Lawlessness Everywhere

 Our country is at a crucial crossing point.  In the past, even though there were extraordinarily damaging disputes such as the Civil War, the country survived them by adhering to its founding fathers' principle that ours was "a country of laws, not men." In other words, the Constitution was worth protecting at all costs, lest we descend into some form of tyranny -- which, by definition, is government by man (or men), not by law.  The tyrant, not the Constitution, defines in that case what the law is.

As evidenced by the recent presidential election, it is now an open question whether ours may still be said to be a country of laws.  This question is brought into sharpest focus by the recent lawsuit filed by the State of Texas in the United States Supreme Court, which invokes that Court's "original and exclusive" jurisdiction over cases and controversies between the several States, conferred by Article III of the Constitution and by Congress (in Title 28, United States Code, Section 1251).  

While the Supreme Court's jurisdiction is normally "appellate" -- meaning that it has power to review decisions on appeal from lower courts -- "original" jurisdiction refers to the (rather rare) type of cases which must be commenced at the outset in the U.S. Supreme Court.  And the additional word "exclusive" means that no State has the ability to file any such lawsuit against another State in any state or lower court, but must bring it, if at all, before the United States Supreme Court.

Actually, due to the archaic practice of the Supreme Court, a State invoking its original jurisdiction cannot simply file a complaint in that court, but according to tradition, files a "motion for leave" (i.e., permission from the Court) to file such a complaint. According to past decisions, the Court's inherent power over its own docket confers it with the discretion to deny such leave at the outset, and so refuse to exercise such jurisdiction. However, recently justices (e.g., Justice Thomas, joined by Justice Alito) have suggested that the Court lacks that discretion when States invoking the Court's original jurisdiction have no other judicial forum available to adjudicate their claims. (See the discussion in Texas' Brief in Support of Motion for Leave to File, in the .pdf of the lawsuit, following the complaint itself, at page 34.)

The lawsuit asks the Supreme Court to take cognizance of the lawlessness in the voting for president that allegedly occurred in the various "swing" states (meaning those states whose electoral votes could, in the totals recorded in the Electoral College votes next December 14, cause the presidential election to go to one candidate or the other -- because the results otherwise would be inconclusive). There is a very good summary of the complaint's allegations of what went wrong in each swing state's voting procedures in this post, so I will not repeat them here.

Reduced to its essentials, the proposed complaint says that each swing state (Georgia, Michigan, Pennsylvania and Wisconsin) allowed persons other than that state's legislature to alter, before the 2020 election, the previously legislated procedures for choosing the presidential electors from that state. Since the United States Constitution provides, in Article II, Section 1, Clause 3 (italics added) that "each State shall appoint, in such Manner as the Legislature thereof may direct," the Electors from that State who are to cast their votes in the Electoral College on the appointed date (which this year falls on December 14), Texas charges each swing State with violating that clause by the actions their officials took without legislative authority, all as detailed in the link in the previous paragraph.

Now consider the gist of Texas' proposed complaint. The United States is a confederation of States joined in a perpetual Union for their mutual benefit. While each State is sovereign in itself, it submits that sovereignty, through the Constitution to which it accedes, to the overall authority of the United States of America -- which includes its three branches of government. It is the Constitution which defines and delimits the extent of the authority of each of those branches in respect of the country as a whole. And the Tenth Amendment to the Constitution ensures that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Among the powers delegated to the United States are those establishing the Executive Branch (Article II of the Constitution, vesting those powers in a President). But that same Article, as noted earlier, reserves to the States the power to "appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."

Notice that the language of Article II does not delegate the authority to specify how Electors may be chosen to any body other than the "Legislature" of a given State. 

Thus, neither a State's governor, nor Secretary of State, nor a county elections board, nor a county clerk or elections supervisor, nor even a State's Supreme Court or lower court, has been granted any power to specify how that State's presidential Electors  are to be chosen. Such an election of Electors for that State may be conducted only in conformity with the laws duly enacted by that State's legislature.

Normally, a State's legislature passes laws pursuant to authority granted by that State's constitution, in parallel with the way that the United States Constitution authorizes Congress to enact federal laws. But just as Congress' powers to enact laws may be constrained by the Constitution (e.g., "Congress shall make no law respecting an establishment of religion . . . "), so also may the citizens of a given State establish a constitution which limits that State's legislature in the kinds of law that it may enact.

In the case of Pennsylvania, for example, that State's constitution spells out in its Article VII the basic law for elections. Although Section 14 of that Article provides for absentee balloting, that provision in no way authorizes the kind of lax mail-in balloting that Pennsylvania's legislature purported to authorize by its enactment of laws in 2019 and 2020.

So the Texas lawsuit presents the following substantial question: When a State allows its presidential electors to be chosen in a manner beyond that authorized by its own constitution or legislature (acting in accordance with its constitution), does that unlawfulness prejudice the ability of other States to participate in the Electoral College?

It seems unarguable that such unlawfulness negates the ability of other States to elect a president under our Constitution. If the result of voting in the Electoral College is tainted by votes from States that ignored their own laws, how can one argue that the States acting illegally had no effect on the result, and operated to frustrate the efforts of those States that followed their own laws? One might as well contend that there was no disenfranchisement of women in a local election if a municipality engineered matters such that only men's votes for their candidate dog-catcher were counted.

And if we were (by constitutional amendment) to create the position of National Dog-Catcher, electable by the citizens of all 50 States, would it make any difference to the argument if one or more States were to provide by law that only males could vote for such a position? How could their votes be counted in the national tally, without a gross inequality resulting? That is the question presented by Texas' complaint.

In other words, the lawsuit presents certain facts about the procedures followed for the presidential election in the four swing states that allegedly violated their own constitutional and legislative enactments (such as extending the deadline for submission of ballots beyond Election Day as specified by Congress, or waiving the verification of absentee ballots, or by sending out to all voters mail-in ballots even if those voters did not request any absentee ballot). It then requests the Supreme Court to rule that the failure of those States to follow their own constitutional and statutory procedures means that the balloting in those States was invalid to select Electors "in such Manner as the Legislature thereof may direct", because they were elected pursuant to procedures not expressly authorized by the Legislature or Constitution of that State. And in turn, that invalidity taints the vote in the Electoral College, by mingling invalid votes with valid ones.

As Justice Marshall famously stated in Marbury v. Madison, "it is emphatically the province and duty of the judicial department to say what the law is." And that is all that the Texas complaint seeks by way of relief -- it expressly does not seek to have the Court adjudicate which candidate won the election.

Many of the opposition briefs filed in the Supreme Court exaggerate and distort the limited relief which Texas and its co-plaintiffs seek from the complaint. Georgia, for example, claims in its filing that "Texas seeks to alter how Georgia appoints it electors" (Brief in Opposition, at page 12). Exactly the opposite is true: Texas seeks to have Georgia adhere to its previous legislatively established method of appointing Electors.  It does not want Georgia to change the rules in the middle of the game. What can be wrong with that request?

Yet to read the briefs filed in opposition to Texas' motion to file its complaint is to indulge in all manner of egregious hyperbole and rodomontade concerning the supposedly "true" object of its filing. For just one extreme example, the Attorney General for Pennsylvania claims in his brief that Texas' attempt to invoke the original jurisdiction of the Court is a "seditious abuse of the judicial process" (my emphasis added). Sedition, however, is an attempt to betray, or go around, specific provisions that govern the conduct of a nation -- which can scarcely encompass the application of a State to that country's Supreme Court for relief pursuant to its Constitution. 

It is instructive, therefore, to focus on just what kind of relief the Texas lawsuit seeks. Here are the first two paragraphs from the prayer for relief, taken from the proposed complaint:

WHEREFORE, Plaintiff States respectfully request that this Court issue the following relief:

A. Declare that Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin administered the 2020 presidential election in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution.

B. Declare that any electoral college votes cast by such presidential electors appointed in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin are in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution and cannot be counted.

If one were to take the opposition filed by Georgia as definitive (p. 30), one would conclude that these two prayers invoke a non-existent remedy, because no court (including the Supreme Court) can render any advisory opinion in a matter not involving a genuine "case or controversy" between the parties before it. But again, Georgia's contention to that effect is hyperbole: a declaration that Georgia failed to follow its own statutory procedures in the presidential election of 2020 would by no means be abstract or advisory, but would be akin to what the Court did in Bush v. Gore (2000) 531 U.S. 98 (per curiam) -- where its declaration of Florida's failure to apply consistent standards in the counting of ballots followed from its application of federal constitutional law to Florida's election procedures. 

Thus if it accepts Texas' complaint, the Supreme Court would be well within its adjudicatory powers to grant the relief requested in the two paragraphs quoted above. What about the next requests?

C. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College.

D. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College and authorize, pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.

. . .

F. Enjoin the Defendant States from certifying presidential electors or otherwise meeting for purposes of the electoral college pursuant to 3 U.S.C. § 5, 3 U.S.C. § 7, or applicable law pending further order of this Court. 

These paragraphs invoke the Court's power to provide injunctive relief, i.e., an order from the Court that a party refrain from certain conduct. Again, such relief is well within the Court's ability to grant in the context of a given lawsuit. It is meant as a remedy to preserve the status quo from being illegally altered. Under that test, the Court again could use its powers to prevent any of the swing states from certifying election results that were the product of unconstitutional election procedures. Otherwise, its judgment that they failed to follow their own required procedures would be nugatory and of no practical effect. 

(The final paragraph F of the prayer might need emendation -- it is true that is is the State, through its governor, that "certifies" the electors appointed by that State, but it is the Electors themselves, not the State, that meet "for purposes of the electoral college . . .". The suit does not propose to make the individual Electors defendants, so the Court could not issue any injunction against them to prevent them from meeting. The first part of the injunction, preventing the State from "certifying" any results of the Electors, would appear to be adequate to keep any results of their meeting from being considered by Congress when it meets to counts the votes certified by the various States on January 6.)

I do not take into consideration paragraph E of the proposed complaint, which I regard (as an order to the various States' legislatures) to be beyond the powers of the Court to grant: in this confederation, with its separation of powers, the United States judiciary has no power to order any State's legislature to pass any legislation whatsoever. 

The point, however, is moot. If the Court has the power to prohibit a State from certifying the electors chosen by an unconstitutional process, which I take as a given under our federal system, then that power is adequate to present that State's legislature with the two alternatives contained in paragraph E, namely, either provide for the selection of legally qualified Electors, by holding a new election or by appointing them directly, or else do nothing and ensure that that State will not participate in the electoral college.

In sum, I do not see any merit in the claims by the swing states (or their amici) that the Court has no ability under the Constitution to entertain the Texas lawsuit. To concede that point would be to concede that each State in this federal Union may engage in lawlessness (defined as a failure to follow its own binding laws, or to encourage their disregard) without affecting any other State, or the Union itself. 

That cannot be the case, in a nation of laws. If we fail to uphold our laws -- whether that failure be in the inaction or dereliction of individual bodies at the local level, or of State legislatures, or of the Congress, or of the United States Supreme Court -- we cease to be a nation of laws.

And in that case, we will be well on our way to becoming a nation ruled by tyranny. There is no other choice.

 [UPDATE 12/11/2020, 9:00 PM PST]  Alea iacta est.  The Supreme Court declines to deal with the country's pervasive lawlessness. The country will soon be in the hands of the lawbreakers and their enablers. The words that ring out at the start of every session of the Court have never had more meaning: "May God have mercy on the United States of America and this honorable Court!"

Down to the Brass Tacks

Now that Election Day has passed, your Curmudgeon feels free to comment on the current mess, since all the usual suspects have shown their cards and taken their predictable stances on the very predictable result of the Presidential race. (Hint: thanks to the looseness of "mail-in balloting" as allowed by multiple States, abetted by an imaginary COVID-19 factor, the result as I write is inconclusive.) 

Notwithstanding the differing State results that are in dispute, the Democrats and their captive media have "called" the election in favor of their candidate, even though there can be no confirmed "President-Elect" until the next Congress (the 117th in our history) meets on January 6, 2021 to tally the votes from the Electoral College as certified by the governors of the respective States. And even then, it may still not be possible to declare that Candidate A or Candidate B is the definitive President-Elect of the United States. 

By Congressional statute (3 U.S.C. § 7), enacted pursuant to Article II, Sec. 1, cl. 5 of the Constitution, the Monday after the second Wednesday in December of a given Presidential election year has been specified as the date on which all State electors are to meet in their respective State capitals and cast their ballots for both President and Vice President. In 2020, that date falls on December 14.

Normally, the electors for any given State are those persons who (first) have been nominated beforehand by a registered political party or independent candidate within that State (or Congressional district), and then (second) who have the fortune to have their Presidential candidate receive the highest number of votes cast in that State (or district) in the November election. But when is it determined that a given Presidential candidate has received the requisite highest number of votes?

Ay, there's the rub. Again normally, the vote tallies in the various counties and districts of the State are completed within a day or two of Election Day, and are clear enough so that there can be no dispute about which candidate got the most votes. But occasionally, as happened in the Presidential election of 1876, and as almost happened in the Presidential election of 2000, there were disputes about which candidate prevailed in various States, so that the slate of electors entitled to cast votes for their respective candidate was rendered uncertain. The Constitution specifies that in such cases, as well as in any case where no candidate receives a majority of the Electoral College votes, the final selection of the President goes to the newly elected US House of Representatives, and the selection of the Vice President goes to the newly elected Senate.

As regards the election results in Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada, we are witnessing a repeat of what happened in Florida in 2000.  You may recall that the then Democratic Party candidate Al Gore contested the official count in certain counties of that State in favor of the Republican Party's George W. Bush. Gore, however, was under a deadline to have the recounts he requested resolved in his favor before the Florida Secretary of State certified the official count to the Governor, who would then sign the certificates attesting selection of the Republican slate of electors to the Electoral College.

Again, Congress has legislated what happens when there is a dispute in any given State over its proper slate of electors. Section 5 of Title 3, U. S. Code, provides that if election results are contested in any state, and if the state, prior to election day, has enacted "procedures to settle controversies or contests over electors and electoral votes", and if these procedures have been applied, and the results have been determined six days before the electors’ meetings, then these results are considered to be conclusive. Six days before the prescribed meeting of the Electoral College on December 14 of this year falls on December 8. (The date is referred to as "Safe Harbor Day", because the statute makes any resolution of election disputes reached by that date presumptively conclusive, i.e., not subject to further contest.)

Thus the various contests filed by the Trump campaign in the respective States will have to have been resolved ("determined") on or before December 8, 2020 in order to have those results apply to the Electoral College vote.  Here again, however, the federal nature of our Union kicks in.  For while it probably will not be practical to have all contests in all disputed States determined in the courts by December 8, it may suffice for one such dispute to have been finally determined at the highest possible level by that date, if that determination is definitively made by the United States Supreme Court (SCOTUS), and if it fairly applies in the other cases, as well. That is because, under our federal system, the rulings of SCOTUS on federal law are automatically binding on all lower courts, both federal and State.

The case that currently is most advanced on the calendar for SCOTUS review is one brought by the Republican Party of Pennsylvania against Secretary of State Kathy Boockvar, which challenges the decision by a unanimous Pennsylvania Supreme Court to (1) extend the statutory deadline for receipt of all mail-in and personal ballots by three days after the legislated deadline of 8 p.m. on November 3; and (2) require the various election boards to include in their counts any ballots received by the extended deadline which could not definitively be shown to have been mailed after November 3 (i.e., ballots in envelopes bearing blurred postmarks, or even no postmarks at all). This ruling, be it noted, shifted the burden of proof from the individual voter to the given elections board to establish that a ballot was not sent in by the statutory deadline -- and why would a Democratic-majority elections board try to prove that a ballot for their candidate had not been sent in on time? 

In that case before SCOTUS, Justice Alito issued an order requiring segregation of all late ballots pending action on the petition for review by the full court. The Court could issue a further order in the case as early as tomorrow, or on any day this week. And whatever the Court decides will provide the best indication of whether that case will become the vehicle for resolving the disputes in other States besides Pennsylvania (to the extent those disputes involve State courts or officials changing or acting contrary to State law).

As is usual with legal matters, the issues involved are quite technical, and turn on just what relief a party has requested, and what the view of a majority of the Justices is as to whether that (or other) relief can be granted in the context of the case. Here is one very strong summary of the issues for the Republican petitioners, and here is another informed view that calls into question whether SCOTUS will grant any definitive relief.  In the words of my previous post, "you pays your money and you takes your choice."

If there is one saving grace amidst all of this confusion, it is that our Constitution again speaks quite clearly as to who has the definitive say about a State's choice of electors to the Electoral College. Here is the language of Article II, Section 1, clause 2, which has been with us since the original document was ratified in 1789 (with my bold emphasis added):

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Thus if the various State and federal courts prove inadequate to the task of resolving the election disputes in each contested State before the Safe Harbor day of December 8, the Legislatures of those States are empowered to step in and resolve the disputes by designating their own slates of electors. And it has not gone unnoticed that of the disputed States (Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada), all but Georgia and Arizona have Democratic governors, as well as Democratic Secretaries of State, and Democratic election officials, while they each (except for Nevada) have legislatures in which both houses have Republican majorities.  

The question thus becomes: if the proceedings to challenge the election results in each of those States become bogged down while the various courts flounder amidst all the technicalities of intervening in a given State election, will the Legislatures of those States have the gumption to exercise their Constitutional power to resolve those disputes definitively, in time for the final vote of electors by December 14? On the answer to that question depends who will be President on Inauguration Day, January 20, 2021.

A few more observations may be in order. 

• First, the blame for the current election mess must be laid squarely at the feet of the Democrats. Only they pushed to change the rules to allow mail-in voting, ballot harvesting, no requirements for voter ID or prior registration, extended periods for both early and late voting, and similar loose measures intended to generate possibilities for manipulation. 
  
  
• Second, the rush to "call" a winner of the 2020 election has been driven by the major news networks, who are unanimously biased against President Trump. But the media have no power under the Constitution to declare anyone as "President-Elect". That title may be bestowed only upon the winner in the Electoral College vote of December 18, or if not there, then upon the candidate selected by the new House of Representatives that convenes on January 6, 2021. 
  
  
• Third, if the choice ultimately goes to the new House, the vote for President will not be by a majority of its individual members, but (again as specified in the Twelfth Amendment) by the collective delegations for each State in the House, with each delegation having a single vote. As of the latest results for the 435 House elections, Republicans on January 6 will control 26 of the State delegations, and will thus have a majority of the 50 delegations so voting. 

In summary, what happens between now and January 20, 2021 is pretty much up to the Republican legislators elected to Congress and to their various State legislatures. 

Thank you for bearing with me to the end of this post. I have done my best to state only facts, and not opinions, except where I ascribe what I regard as justified blame for the current uncertainty. You of course are free to disagree; I ask only that you be civil in the comments.

A Timely Reminder

As explained in several earlier posts, this blog has purposefully remained silent during the civil (and religious) strife that has dominated discourse prior to Election Day next Tuesday.  Your Curmudgeon has been as dismayed as any of you who grace this blog with your attention and comments about the escalating sense of disconnect between reality and rhetoric.

A few factors remain constant. The Episcopal Church (USA) continues its downward spiral into irrelevancy, by adhering strictly to Neuhaus' Law in steadily driving out all those brought up in its orthodox traditions (including your Curmudgeon), which traditions it has now proscribed. Other denominations that have abandoned orthodoxy are experiencing similar declines.

The result of the elections in four days will, I submit, demonstrate whether there is a similar phenomenon at work among the body politic.  The contest is not between two political parties, but between those who insist on the nation's adherence to its foundational principles and those who (for whatever motivation) insist that those principles be jettisoned -- and replaced by, well, you pays your money and you takes your choice: or in other words, whatever notions can command an ephemeral allegiance among those who are dominant for the moment.

That choice is no choice at all. The alternative to adhering to the principles that have made this nation great is actually a multiverse of discordant discontent, fueled by whatever (one believes) has sunk one's boat, or has prevented one from reaching ascendancy. There is simply no way to unite that multiverse around a common ground, because each is convinced he or she has been gored by a different ox, and so requires different "justice" in recompense.

As we approach this election, therefore, I would like to call to the attention of this blog's faithful followers a timeless parable from the pen of the incomparable G. K. Chesterton, expressed at virtually the outset (1905) of his literary career. Notice especially its relevance to those "peaceful protesters" who have decided to rid us of commemorative statues of our forbears:

Suppose that a great commotion arises in the street about something, let us say a lamp-post, which many influential persons desire to pull down. A grey-clad monk, who is the spirit of the Middle Ages, is approached upon the matter, and begins to say, in the arid manner of the Schoolmen, “Let us first of all consider, my brethren, the value of Light. If Light be in itself good—” At this point he is somewhat excusably knocked down. All the people make a rush for the lamp-post, the lamp-post is down in ten minutes, and they go about congratulating each other on their unmediaeval practicality. But as things go on they do not work out so easily. Some people have pulled the lamp-post down because they wanted the electric light; some because they wanted old iron; some because they wanted darkness, because their deeds were evil. Some thought it not enough of a lamp-post, some too much; some acted because they wanted to smash municipal machinery; some because they wanted to smash something. And there is war in the night, no man knowing whom he strikes. So, gradually and inevitably, to-day, to-morrow, or the next day, there comes back the conviction that the monk was right after all, and that all depends on what is the philosophy of Light. Only what we might have discussed under the gas-lamp, we now must discuss in the dark.

 – G.K. Chesterton, Heretics, 1905

SC Court on Remand Vindicates Bishop Lawrence and His Parishes

At 8:39 a.m. EDT this morning, South Carolina Circuit Court Judge Edgar Dickson filed his long-awaited decision on remand in the drawn-out dispute between Bishop Lawrence and the (now) Anglican Diocese of South Carolina vs. the Episcopal Church (USA) and its diocese (created to replace that of Bishop Lawrence when the latter voted to withdraw from ECUSA).

The decision is a full and clear vindication of all of the arguments made by Bishop Lawrence and his parishes, with the exception of those concerning trademarks, insignia and intellectual property (which Judge Dickson held were governed by federal trademark law). Making factual findings as to each of thirty-six individual parishes, Judge Dickson ruled (1) following the still-controlling decision of the South Carolina Supreme Court in All Saints Waccamaw, ECUSA's Dennis Canon by itself does not create or impose a legally binding trust on any church property in South Carolina; (2) none of the thirty-six parishes ever expressly acceded to the Dennis Canon in any written document; and (3) Bishop Lawrence's Diocese did not lose its status as beneficiary of the Camp Christopher Trust when it exercised its legal right to disassociate from ECUSA (again following another holding of the Waccamaw case).

Judge Dickson does an excellent job of laying out these conclusions at the close of his Order:

The neutral principles of property, corporate, and trust law [in South Carolina] have been consistent for years. Lawyers and judges understand those principles and are competent to decide issue[s] based upon them. Additionally, neutral principles of law avoid[] all religious discussion, including which party is “true” to their denomination. 

This is a property case. A decision on property ownership is usually governed by the title to real estate—the deed. In this case, all the Plaintiff Parishes hold title to their property in fee simple absolute. 

Ownership may be [a]ffected by [a] trust: a clear, convincing legal statement of a trust—not a promise, not a pledge, not polity. This Court concludes that there is no signed writing by the Plaintiffs expressly acceding to the Dennis Canon. This Court concludes there is no evidence establishing an intent by the Plaintiff Parishes to create a trust in favor of Defendants nor did the Plaintiffs ever vote on or consider acceding specifically to the Dennis Canon. Statements of allegiance are insufficient to establish an expressed trust. TEC unilaterally drafted the Dennis Canon. Since TEC and TECSC are not the owners of the Parish properties, they cannot establish a trust for themselves simply by declaring that they are also the beneficiary of the trust. The Dennis Canon by itself does not create a “legally cognizable” trust nor does [it] transfer title to property.

What does this mean on the ground? Again, Judge Dickson -- in contrast to the indeterminate and scattered holdings of the South Carolina Supreme Court, whose "Collective Opinions" he was forced to parse and make sense of -- leaves nothing unclear:

IT IS THEREFORE ORDERED that the thirty-six Plaintiff Parishes be, and hereby are, declared and affirmed as the title owners in fee simple absolute of their respective parish real properties, with improvements thereon and their accompanying personal property.
IT IS FURTHER ORDERED that certified true copies of this order shall be filed in the Clerk of Court’s Office in the county where each parish is located.
IT IS FURTHER ORDERED that the Defendants herein have no interest in the Plaintiff Parishes’ properties.
IT IS FURTHER ORDERED that ownership to Camp St. Christopher remain as titled to the Trustees of the Corporation as stated in the 1951 deed.
IT IS FURTHER ORDERED that the Federal Court has jurisdiction over all matters related to trademarks, service marks, and intellectual property.
IT IS FURTHER ORDERED that the request for the Appointment of a Special Master, the Petition for an Accounting are denied.
AND IT IS SO ORDERED.

Your Curmudgeon does not gloat or boast, but tries to keep things humble and accurate here. Nevertheless, this earlier post foreshadowed this result. It was obvious to a lawyer's mind that no three justices of the South Carolina Supreme Court had agreed on anything except that they were not overruling All Saints Waccamaw, which remained good law. And following that lead, Judge Dickson finds that each of the questions presented for him on remand was already resolved by that earlier decision.

Those commenters who took the arrogance of Justices Hearn and Pleicones (who were actually in the minority, but refused to acknowledge it) at face value were misled into thinking that they properly summarized the fractured holdings of the Court. But they did not. All they did was adhere to their blinkered view that South Carolina should revert to the deference rule in church property disputes -- and that view, as Judge Dickson conclusively demonstrates, was not the majority view.

Where will things go from here? Well, Judge Dickson notes that there is still a pending motion to reconsider ECUSA's earlier motion to dismiss, but that motion is pretty well now moot, given that he has ruled on the merits. So what ECUSA and its diocese can do is once again appeal to the South Carolina Court of Appeals, and then to the state's Supreme Court. But this time, things will be different:

1. There are two new Justices on the Court (replacing Pleicones and Toal, who retired), plus Justice Hearn has recused herself from all further proceedings in this case. That leaves only four, as there were on +Lawrence's earlier Petition for Rehearing, but this time a 2-2 split would mean that Judge Dickson's Order would stand. So ECUSA's attorneys would need to get the votes of three of the four sitting Justices. Given the Court's repeated refusal to interfere with the process on remand, that eventuality does not seem likely.

2. To this day, as Judge Dickson notes, All Saints Waccamaw remains the law of the land in South Carolina, and it governs each of the property and trust questions on remand. ECUSA failed, even with the dubious participation of Justice Hearn, to get three votes to overturn Waccamaw. So where will they get them now, with Justice Hearn removed from the case?

3. This time (unlike last time), the record on appeal will include all of the individual parish documents, which show conclusively that none of them ever expressly "acceded" to the Dennis Canon as such. At most, some (but by no means all) parishes employed general language about being bound by the Constitution and "rules" (Canons) of the Episcopal Church in the United States. Moreover, the record will show that Bishop Lawrence's diocese expressly revoked any effect of the Dennis Canon upon parish properties before it withdrew from ECUSA.

4. As Judge Dickson notes in his Order (p. 6), "the trial court's findings of fact will be upheld on appeal when they are reasonably supported by the evidence unless: (1) the findings of fact are wholly unsupported by the evidence; or (2) unless it clearly appears the findings were influenced or controlled by an error of law." On the prior appeal, as Judge Dickson also points out, ECUSA and its diocese did not even appeal from Judge Diane Goodstein's findings of fact as to the parishes' not acceding to the Dennis Canon. But now Judge Dickson has extended and expanded those findings as to each individual parish, and they are amply "supported by the [documentary] evidence" he cites.

5. There is absolutely no evidence in the record, as Judge Dickson observes, of fraud or deceit justifying the law's imposition of a "constructive trust" on the parishes' properties. Instead, the evidence shows that they individually, and not ECUSA, paid for their own properties, and built and maintained their buildings at their expense.

6. Bishop Lawrence and his Diocese have moved on from their state-law claims to the trademarks and insignia of the traditional South Carolina Diocese. (The federal case, where the ownership to those marks is in dispute, is on appeal to the Fourth Circuit, and will be decided in that court.)

These considerations argue strongly against any chance of success were ECUSA and its diocese to try to appeal from Judge Dickson's order. But that never stopped them before, so do not hold your breath.

"Inclusive" ECUSA: "Love Never Ends" -- but +Love Must Go

In a theological dispute that ECUSA's Presiding Bishop Michael Curry has now personally allowed to become a travesty, the Episcopal Church in the USA (what I call "ECUSA", because it is a spawn of today's secular United States, and as such is not qualified to assume the broader mantle of "TEC", or "The Episcopal Church"), held a formal hearing whose object was to remove the Rt. Rev. William H. Love, Bishop of Albany, from the post to which his diocese long ago elected him. 

His sin (sc. offense against the authorities) that requires his deposition? It was his faithfulness to the "doctrine, discipline and worship of the Episcopal Church (USA)" -- exactly as he vowed when he took Episcopal orders, and again when he was consecrated one of that organization's bishops.

Bishop Love took God at His word when He decreed in Gen. 2:24 that "Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh." In today's PC terminology, he denied to same-sex couples their humanly implied right to have their unions receive God's sanction and blessing in the churches of his Diocese. But the 2018 General Convention passed a Resolution (see below) purporting to make the availability of an "alternate rite" for same-sex couples mandatory in all dioceses. And Bishop Love has steadfastly refused to allow any such rite to be celebrated in any of his parishes.

For such an unforgivable trespass upon General Convention's claimed divine prerogatives, Bishop Love must now depart his post, according to  that apostate group's current leadership.

To my regular readers: please forgive the barely concealed disgust in those lead-in paragraphs. Your Curmudgeon cannot refrain from it, when it comes to describing the apostasies of the church in which he was raised from birth, and from which its leadership, by those same apostasies, has now forever alienated him. As I have documented abundantly on this site, that leadership continually abuses its ($350 million worth of swaggering) power. Your Curmudgeon was trained always to speak the truth to power. If that truth be seen in some circles as contempt for "ECUSA's leadership" (an oxymoron in itself), then so be it -- let the shoe fit him who wears it.

The (in)validity of the charges brought against Bishop Love turns first upon the status of Resolution B012 passed (after many amendments from the floor, which you may trace at the link) at ECUSA's 2018 General Convention. That Resolution states at its outset (with my bold emphasis added):

Resolved, That the 79th General Convention authorize for trial use, in accordance with Article X of the Constitution and Canon II.3.6, “The Blessing of a Civil Marriage 2” and “An Order for Marriage 2” (as appended to the report of the Task Force for the Study of Marriage to the 79th General Convention), beginning the first Sunday of Advent, 2018 . . . 

The two liturgies referenced in the Resolution purport to be ceremonies joining or blessing the union of two persons of the same gender in what they each call a "marriage" now recognized ecclesiastically by General Convention, but not by ECUSA's standard Book of Common Prayer (1979 revision). It was the adoption of their predecessors in the 2015 General Convention that proved to be the final straw that compelled your Curmudgeon to quit his theretofore lifelong membership in ECUSA -- because of the ceremonies' reliance on outright blasphemy against Christ and His Church (as explained in this earlier post).  When ECUSA's assembled bishops blessed ritual blasphemy, it was time for faithful Christians to depart from their company.

Way back in 2012, when General Convention was beginning to consider proposals to provide trial services for the ecclesiastical union of two men or two women (I refuse to use the term "marriage" to describe such things, because it would be a category mistake), I put up a series of carefully researched articles that demonstrated why General Convention lacked the legislative power to do any such thing, without first proposing to amend the Book of Common Prayer. (See Part I here, Part II here, Part III here, Part IV here, and Part V here.)

The reason for its inability is that both the Constitution (Art. X) and the Canons (Canon II.3.1) make the BCP mandatory and normative for all forms of worship in the Episcopal Church (USA). And General Convention -- to repeat myself -- has not altered the marriage liturgy or rubrics in the BCP, both of which specify that Episcopal marriage is the union of a man and a woman in Holy Matrimony.

Let's try an analogy or two here in order to understand the magnitude of the problem facing Bishop Love's Hearing Panel at this point. Suppose General Convention enacted a resolution that purported to authorize, "for trial use, in accordance with Article X of the Constitution and Canon II.3.6" (exactly as it did in the case of 2018 Res. B012), a liturgy for Holy Eucharist to be celebrated by a lay (i.e., non-ordained) person (which it called a "President"). Would the bare reference to its authority under Art. X and Canon II.3.6 suffice to make the measure constitutional, or even canonical (which at bottom has to be the same thing, because the Constitution limits what GC may enact as Canons)?

Or again, suppose General Convention passed with the same references a resolution authorizing the substitution of readings from the Muslim Qur'an in place of those from Holy Scriptures. (I am deliberately choosing from among examples within our lifetime in order to avoid any charge of fantastical fabrication.)

Could either such a measure be upheld as canonical -- i.e., within the competency and powers of General Convention as spelled out in ECUSA's Constitution and Canons?  No? Well, why not?

Because in both instances, the proposed "alternatives" would violate the rubrics of the Book of Common Prayer.  Those rubrics bar anyone but a duly ordained priest or bishop from officiating at Holy Eucharist, and prescribe given readings from the Old and New Testaments for each Sunday in the calendar. If General Convention could change the liturgies of the BCP by passage of a single resolution at any one session, then the rites of the BCP would cease to be the constitutionally mandated forms of Sunday worship, and Article X of ECUSA's Constitution would lose all of its force and meaning.

And that is why Article X of ECUSA's Constitution requires that all proposed revisions or additions to the BCP pass a first reading in both Houses at a given General Convention, followed by a formal transmittal of them to the individual dioceses for deliberation in their respective annual conventions, following a passage (by carefully specified majorities) on second reading in each House at the next succeeding General Convention. (For the qualifying details, see my posts on amending / revising the BCP as linked above.)

For reasons of expedience, the backers of 2018 Res. B012 chose to deny that they were proposing any addition or alteration to the Book of Common Prayer.  But their proposed "alternative to the rite of marriage in the BCP" does just that, and is contrary to its explicit rubrics concerning marriage, as any reader of English may plainly ascertain for himself.  So where does that leave Resolution 2018-B012?

Its supporters next fall back upon the change they made to Canon I.18 in 2015, purporting to change its definition of marriage (then matching the BCP's rubrics) to one expansive enough to embrace same-sex unions under the "Church's umbrella."

To pretend to change the language of the marriage canon, however, is meaningless if one does not change the rites and rubrics in the Book of Common Prayer -- which requires, as I remind the reader, two successive General Conventions for its accomplishment.

Admittedly, the Church's Canons may be changed by resolution duly adopted in just a single session of General Convention -- but not (according to Article X) the Book of Common Prayer!

Precisely because it takes a longer process to amend ECUSA's Constitution and BCP than it does to amend its Canons, canon law authorities have uniformly held that the former two documents take precedence over the latter in the case of any conflict. As it states in the last two paragraphs on the last page (p. 482) of Volume I of White & Dykman, Annotated Constitution and Canons (viewable / downloadable at this link), which is every canon lawyer's bible, in regard to a similar attempt to amend Canon I.7 in 1979:

The 1979 Amendment to Canon 7 is now inconsistent with the authority granted by the rubrics of the rite for the Dedication and Consecration of a Church which is part of the 1979 Prayer Book.

The authority granted in the Prayer Book would take precedence over the provisions added to Canon II. 7 at the 1979 General Convention.

So those members of General Convention who fancifully imagine they solved the problem by their purported 2015 "amendment" to Canon I.18 delude themselves -- from a constitutional standpoint.  And if an organization will not respect the terms of its own duly adopted and agreed Constitution, then what is the point of organizing under it in the first place?

From what has been logically demonstrated above, the conclusion logically follows: the prosecution of Bishop Love is neither canonical nor constitutional.  It is brought upon baseless charges that have no backing under ECUSA's Constitution and Canons properly adopted thereunder -- which, for the reasons stated, do not include the current version of Canon I.18.

The disgrace that should fall upon those in ECUSA who are pressing the charges against Bishop Love is made manifest by these other incontestable facts:

1. The same General Convention that passed Resolution 2018-B012, under which Bishop Love is being prosecuted, also passed Resolution 2018-D078, which had language showing that it was expressly intended as a change to a specific part of the BCP, as authorized by Art. X, section b of the Constitution --- so General Convention knew perfectly well how to signal when it was using its authority under Article X to amend the BCP (quoted with my bold emphasis added):

Resolved, That the 79th General Convention authorize The Holy Eucharist: Rite II, including Eucharistic Prayers A, B, and D, (Expansive Language) for trial use throughout this church as a proposed revision within pages 355-382 of the Book of Common Prayer pursuant to Article X(b) of the Constitution;

2. Not only that, but the same General Convention showed that it was fully aware of the Constitutional defects in its previous adoption of church-wide "trial rites" intended to supplement, and not amend, the Book of Common Prayer. (As mentioned, my 2012 series of posts linked above went into those defects in depth.) With Resolution 2018-A063, the Convention passed on first reading a proposed amendment that would grant the following specific authority to the power of a single session acting with the appropriate majorities under Article X of the Constitution, by adding a new subsection (c):

(c) Authorize for use throughout this Church, as provided by Canon, alternative and additional liturgies to supplement those provided in the Book of Common Prayer.

(Emphasis added.) This amendment will not become effective, however, until it passes on a second reading at GC 2021 next year. So it cannot save the illegitimacy of Resolution 2018-B012, and it cannot rescue the prosecution of Bishop Love from its illegality, as well. To the contrary -- by passing the proposed Amendment to Article X, General Convention 2018 in effect conceded that it lacked all authority to propose any supplements to the BCP for mandatory use throughout the church without observing the formalities that Article X requires.

3. But this third and final fact is truly stunning: the Rt. Rev. Nicholas Knisely, Bishop of Rhode Island, who is the Chairperson of Bishop Love's disciplinary Hearing Panel, was also one of the proponents of Resolution 2018-B012 -- the very Resolution whose applicability to him Bishop Love is challenging! Why has no one to date noticed the inherent conflict of interest in Bishop Knisely's appointment to the Hearing Panel?

It is all very complex and interrelated, I know. But I hope I have been clear enough in laying the matter out to show what the chief difficulty is with attempting to try (and convict!) Bishop Love for violating "the discipline and worship" of the Episcopal Church (USA):

As specified in Canon IV.2, "Discipline of the Church shall be found in the Constitution, the Canons and the Rubrics and the Ordinal of the Book of Common Prayer" (italics added). The "worship" of the Church is not specially defined in the canons, but how could it not consist of what is in the Book of Common Prayer?

The current Rubrics of the Book of Common Prayer repeatedly provide, as they did when Bishop Love was ordained and consecrated, that a celebration of marriage in the Church is only between a man and a woman, and not between two of any other kinds of persons (see the BCP online here, beginning on page 423).

The rubrics of the Book of Common Prayer, as we have seen, take precedence over any canon in the case of a conflict, and the rites in the Book of Common Prayer spell out the mandatory forms of the Church's worship.

Therefore, it is impossible that, by adhering as he does to the text of the Book of Common Prayer (which does nothing other than incorporate God's words in Gen. 2:24, as also quoted by Jesus in Mt 19:5), Bishop Love can be said to violate either his vows given upon ordination, or the discipline, or the worship of the Episcopal Church (USA).