ECUSA Beaten Back in Hood County

Today was not a banner day for ECUSA's "hierarchical" theories in the District Court of Hood County, Texas. As described in this earlier post, ECUSA and its ersatz-diocese have been trying every way they could conceive of to get Judge Walton of that Court to recognize them as the only genuine articles in the case, and to date, the Judge has not accommodated them. Today, more of their court papers were struck as the Judge kept his eye on the main issue, and refused to be distracted by all their argument and hand-waving.

The story begins with the success of Cynthia Brants, an artist who worked in many different media for over sixty years until her death in Fort Worth in January 2006. Four years earlier, she had created a charitable remainder unitrust as part of her estate plan. Such a trust requires the designation of one or more tax-exempt entities to receive the remainder of the trust assets after the death of the person(s) designated to receive income from those assets for life. Cynthia Brants evidently felt she had been blessed by her association with St. Andrew's Episcopal Church in Fort Worth, because the language of the trust she created spelled out that one of the three charitable beneficiaries would be "St. Andrew's Episcopal Church, or its successor, of Fort Worth." (The other two were organizations with which Cynthia Brants had been closely identified all of her life: the Amon Carter Museum of Western Art in Fort Worth, and the Old Jail Art Center in Albany, Texas.)

St. Andrew's is not incorporated; it is a religious association of parishioners under Texas law. Under the diocesan canons, legal title to its real property is held in the name of the Corporation of the Episcopal Diocese of Fort Worth, a religious corporation created under Texas law in 1983 to hold title to all of the property in the Diocese. By those same canons, the bishop of the diocese is the chairman of its board of trustees, the other members of which are elected annually to staggered terms of five years each by each annual convention.

St. Andrew's sent delegates to the diocesan convention which voted in November 2008 to change its constitution and canons so as to remove the diocese's affiliation with the Episcopal Church (USA). The rector and vestry of St. Andrew's agreed with that vote, but nothing changed for them afterwards -- they were still in the Episcopal Diocese of Fort Worth, another unincorporated association under Texas law with the Rt. Rev. Jack L. Iker as its bishop, and with the same Corporation still holding title to its property.

Nothing changed, that is, until the Presiding Bishop swooped into Fort Worth and convened, completely in violation of diocesan canons and with no legal quorum of resident clergy, a "special convention" consisting solely of the minority of those in the association (the Episcopal Diocese of Fort Worth) who dissented from the November 2008 vote. This "convention" was nothing more than a charade under canon law, designed to fool the courts and the public (including the disgruntled minority) into thinking that there still was a diocese of ECUSA where there had been one before, and with the capacity to appoint a provisional bishop. In reality, its true purpose was to create some pawns who could act as plaintiffs to bring suit against Bishop Iker, his trustees and his Corporation in Texas courts.

Readers of this blog will see through the charade: the unincorporated association which was the Episcopal Diocese of Fort Worth, founded and organized in January 1983, had now split into two smaller unincorporated associations. The larger, consisting of all those parishes and clergy who supported the vote to realign, continued their legal existence as the association formed in 1983, but without the minority as members any longer. The minority was free to organize as a new association on its own, which it evidently did, but that new association was not, and could not, in the eyes of the law of Texas, be the same legal association as the one formed in 1983.

In other words, if a minority of the members of your local book club, or bowling association, or whatever other unincorporated group you wish to envision, dissented from a decision by the majority and broke off to start their own book club, or whatever, they might try to call themselves by the same name as the majority, but they would not be in law the same group. How could they? They have different members, who agreed on the rules they wanted to follow only after they reorganized, and those rules are now different from the ones the majority follows.

Note that this legal reality is the same regardless of whether the local club is affiliated with some national umbrella organization which purports to bestow its "recognition" upon it (in this instance, the Episcopal Church [USA], which is another unincorporated association [of dioceses]). The national association cannot, under State law, prevent, or forbid, or hinder, the members of associations from exercising their freedom of association under the First Amendment, and from coming and going, and realigning with other associations, as they see fit. All it can do under the law is to bring suit against the members of the formerly affiliated organization -- if it believes it can establish a superior claim to their assets and property.

And that is what happened in Hood County. The attorney for the new (minority) association, Ms. Kathleen Wells, sent a letter to Ronald Wenner, the Trustee of the Cynthia Brants Trust, demanding that any further distributions from the Trust be paid over, not to St. Andrew's and its vestry, but to the Rt. Rev. Edwin Gulick, whom Bishop Jefferts Schori had caused to be installed as the "provisional bishop" of an entity which she insisted on calling "the Episcopal Diocese of Fort Worth."

Now, as we have just seen, while no one but a court of law could order the group not to use that name, calling itself by that name did not magically make the group into what it called itself, in the eyes of law. The entity historically known since 1983 as "the Episcopal Diocese of Fort Worth" was still very much in existence, was still "Episcopal" in that it was led by its bishop, the Rt. Rev. Jack L. Iker, and still occupied the same headquarters in Fort Worth which it had always been using. Moreover, however much Bishop Jefferts Schori and the new group wanted to call themselves a diocese of ECUSA, they -- on their own, as ECUSA itself has successfully argued to many, many courts -- could not become such a diocese without the participation of General Convention. General Convention 2009 took no action whatsoever to admit a new "Diocese of Fort Worth" into union with it, and I am quite sure that General Convention 2012 will not do so, either. So even under ECUSA's own rules and Constitution, there is not, and will not be for some time, an "Episcopal Diocese of Fort Worth" which is one of its own member dioceses.

That did not stop Bishop Gulick and ECUSA from pretending to be what they in law were not. Invoking ECUSA's bête noire, the Dennis Canon, they asked the Trustee Mr. Wenner to recognize that since St. Andrew's of Fort Worth was no longer a parish of ECUSA, all Trust moneys had to be paid to Bishop Gulick, for the good of the Episcopal Church [sc. fund more litigation]. In her letter to the Trustee, Ms. Wells asserted that she was writing on behalf of "the Episcopal Diocese of Fort Worth" and its affiliated "Corporation."

The Trustee went into Hood County District Court, and filed a petition for a declaratory judgment, which in effect asked the court to tell him whom he should pay. He named as defendants, among others, the Episcopal Diocese of Fort Worth and the Corporation of the Diocese of Fort Worth -- along with St. Andrew's.

Now the fun starts (sorry for the elaborate buildup, but it is necessary to follow the horses in this race). Seeing that they had been sued (but not yet served), Bishop Iker's Diocese and his Corporation responded to the Trustee's lawsuit. They disclaimed any and all interest in the Trust distributions -- because, as they alleged, St. Andrew's had not gone anywhere! It was still in the same building it had occupied when Cynthia Brants worshipped there; it was still led by the same rector and vestry to whom the previous payments had been made; it still worshipped in the same fashion, using the same prayer books, chalice and other accessories, as it had worshipped in 2002, when she set up her trust for the church's benefit; and nothing about the church to which Cynthia Brants had made her gift had changed in the least. (She did not, after all, make her gift to ECUSA, or even to the "Episcopal Diocese of Fort Worth", but to "St. Andrew's . . . of Fort Worth.")

Incensed that their little charade had backfired, Bishop Gulick and his attorneys rushed to file an answer to the Trustee's petition of their own, using their pretend names. On behalf of the "Episcopal Diocese of Fort Worth" and its "Corporation", they assured the Court that oh, no -- everything had changed: St. Andrew's had left the Diocese for foreign parts, and while there was no longer a functioning congregation of the Episcopal Church (USA) with that name, the provisional bishop of the diocese would be all too happy to receive all future distributions from the Trust, and put them to the charitable purposes which Ms. Brant had so evidently intended. (I shall pardon the snickers; we are not, after all in court. But imagine the talent it takes to make that claim with a straight face!)

As I have explained in an earlier post, the maneuvering and jockeying for position went back and forth from there. Bishop Gulick's group first tried to have Judge Walton put a hold on any further proceedings until Judge Chupp, in Tarrant County, could sort out the players and decide who was the real Bishop of the Episcopal Diocese of Fort Worth, and the Chairman of its Corporation. Judge Walton denied that motion. Then Bishop Gulick (and later his successor, Bishop Ohl) tried to file a plea in intervention, to be allowed to assert a personal stake in the Trust proceeds, as a sort of canonical successor to the (supposedly vanished) St. Andrew's. Judge Walton would have none of that, either: the Trustor named "St. Andrew's of Fort Worth", and not any individual bishop or diocese. The terms of the trust were irrevocable, and since there still unquestionably was a St. Andrew's church in Fort Worth, there was no occasion to apply what lawyers call the cy pres doctrine.

Meanwhile, Bishop Iker's Diocese and Corporation filed a motion for summary judgment, which argued that there were no disputed facts about the existence and continuation of St. Andrew's. When Bishop Gulick tried to file opposition to the motion on behalf of the "Diocese" and "Corporation" he claimed to represent, Judge Walton ruled that the motion by Bishop Iker's Diocese was not directed against those entities, but against the plaintiff trustee. Accordingly, he ordered the opposition papers stricken.

Things got more intense when the Court of Appeals in Fort Worth handed down its decision last June 27 in the Tarrant County case, which I discussed in this post. Now Bishop Ohl (Bishop Gulick's successor as "provisional bishop") and his attorneys would be under an order to cease filing pleadings in the names of the entities governed by Bishop Iker, and would have to describe themselves differently in all future pleadings. Bishop Iker's attorneys amended their motion for summary judgment to include that result, and Bishop Ohl and his attorneys rushed in with amended objections to the amended motion for summary judgment, and an amended plea in intervention by Bishop Ohl, based on the same grounds as Judge Walton had ruled were inadequate earlier (and using the names which the Court of Appeal had indicated they could not use).

On the eve of today's hearing before Judge Walton, Bishop Ohl and his attorneys filed still more supplemental pleadings. Judge Walton thus had a number of motions and issues before him, and I will let the official release from Bishop Iker's diocese relate how he ruled:

HOOD COUNTY, Texas – In a hearing today Judge Ralph Walton granted three motions favoring St. Andrew's Episcopal Church in Fort Worth, as well as the Episcopal Diocese of Fort Worth and the Corporation of the Diocese. At issue in the case is payment of a bequest made to St. Andrew's in 2002 by a longtime parishioner. As he had done in past hearings on earlier motions, Judge Walton dismissed attempts by representatives of the national leadership of The Episcopal Church (TEC) to bring issues from a case pending in Tarrant County into the trust case before the Hood County court.

Judge Walton began by approving a motion asking that the Diocese and Corporation be identified by their legal names in an order issued following a hearing on June 2 [that hearing, and the orders made, are described in this post]. This substitution corrected inaccurate and informal descriptive terms suggested by representatives of the TEC interests. Next, the court found that Bishop C. Wallis Ohl, serving in The Episcopal Church, had no legal interest in the bequest to St. Andrew's. The filings submitted in Bishop Ohl's name sought to make the judgment dependent on resolution of an ecclesiastical dispute between the Diocese and TEC loyalists [, and the judge denied his plea in intervention]. The judge also denied a motion brought by the trustee of the bequest which would have delayed the hearing of the summary judgment filings to another date, contingent on proceedings in the Tarrant County case.

Is it all clear, now? (You have the Presiding Bishop's Chancellor to thank for the strategy of trying to muddy up the waters, and prevent clear thinking from prevailing. Fortunately, the judges of Texas are, to date, proving to be more than a match for the Chancellor's strategy.)

The official release concludes:

Proceeding then to arguments on the summary judgment, the court heard pleadings on behalf of the trustee, the TEC cross-plaintiffs, and the Parish, Diocese, and Corporation. The judge concluded the hearing saying that he would inform the parties of his ruling in writing. His decision is expected in the coming days.

Today's rulings bring the case nearer to a conclusion. Bishop Iker expressed gratitude for the wise counsel provided by J. Shelby Sharpe and the entire legal team, as well as appreciation for the prayer support of today's proceedings from the clergy and lay people of the diocese.

Thus in a week or so, we should know more. But if Judge Walton maintains the track he has been on, he understands that the charade does not need to be resolved for him to decide the narrow issue before him: can the beneficiary of an irrevocable trust be replaced against its will?

There is simply no legal precedent for the arguments ECUSA is putting forward here. The Dennis Canon purports to apply to property held by or for the benefit of Episcopal parishes. But the assets of the Cynthia Brants Trust are not held by St. Andrew's, and the entity that holds them for St. Andrew's is in no way subject to the canons of the Episcopal Church (USA).

At the oral argument today, I am told that Bishop Iker's counsel asked his opponents the following rhetorical question: "If you owed money to a bank on a promissory note, and you received a letter from some attorneys claiming that there was a dispute over which of two factions controlled the bank's board of directors, would you be justified in stopping payments on the note until the dispute was resolved?"

It's a good question. And I understand that Bishop Ohl's attorneys had no answer to it.

A Request that Ought to Be Granted

The nine parishes in the Anglican District of Virginia (ADV) who were appellees in the Virginia Supreme Court have filed an application with that Court to reconsider or clarify its decision of June 10. At stake are what issues will be tried in Fairfax County Circuit Court on remand, or if there is a need to consider the constitutionality of Virginia's "division statute" (quoted in this previous post). Although well over 90% of such applications are routinely denied without comment, this application is worth considering, because the issue it raises is a genuine one, which the Court apparently overlooked in its decision.

The issue is the treatment of the trial court's factual findings on appeal. The Court itself stated the applicable standard at pp. 15-16 of its decision:

While the issues raised by these assignments of error deal primarily with questions of statutory construction which are reviewed de novo, Smit v. Shippers’ Choice of Va., Inc., 277 Va. 593, 597, 674 S.E.2d 842, 844 (2009), to the extent that we must also review the circuit court’s application of a statute, we accord deference to the court’s determinations of fact. Virginia Baptist Homes, Inc. v. Botetourt County, 276 Va. 656, 663, 668 S.E.2d 119, 122 (2008).

Thus the interpretation (construction) of Virginia's division statute presents a pure question of law, which the appellate court visits afresh (de novo), without being bound by the trial court's views on the matter. But the appellate court owes "deference" to the factual findings made by the trial court, because that court actually heard all the evidence on which its findings were based. In fact, however, the Virginia Supreme Court in this instance did not defer to those factual findings in one crucial respect: it disagreed with Circuit Judge Randy Bellows' conclusion that CANA and ADV were both "branches" of the same polity as the Episcopal Church.

The Virginia Supreme Court reached its result not by rejecting the findings outright -- it could scarcely do that, unless there were no evidence in the record to support them. Instead, what it first did was to redefine the word "branch" as used in the statute, and then hold that the trial court's findings were not applicable under that term as so redefined. Here are the relevant passages from the Court's opinion (pp. 28-29; bold emphasis added):

We turn now to consider the circuit court’s finding that CANA and the ADV are “branches” of TEC and the Diocese for purposes of applying Code § 57-9(A). For the reasons that follow, we hold that the circuit court’s finding was erroneous.

In its second assignment of error, TEC contends that the circuit court’s definition of a “branch” as meaning “a division of a family descending from a particular ancestor” demonstrates that CANA is a branch of the Church of Nigeria, not of TEC. Likewise the ADV, as a district of CANA, descends from the Church of Nigeria and CANA, not the Diocese or TEC. TEC contends that the historical connection between it and the Church of Nigeria through the Anglican Communion is not sufficient to establish that constituent parts of each church are “branches” of the other. TEC further contends that the circuit court erred in giving particular significance to the fact that the majority of the congregations in the ADV and CANA were formerly affiliated with TEC and its dioceses. We agree.

ECUSA argued, and the Supreme Court agreed, that the test of a "branch" was not the previous affiliations of those who now belong to it, but the historical origin, and coming into being, of the branch itself. Under this interpretation, the Court concluded, CANA could not be a "branch" of the same denomination as ECUSA, because its origin had been the result of actions by an entirely different church. In reciting these findings, the Court's opinion makes it appear as though it was accepting the facts the trial court had found, but was applying them in a different way (pp. 29-30; bold emphasis again added; italics in original):

When it was initially formed, CANA was a mission of the Church of Nigeria designed to minister to expatriate members of that church in North America. The subsequent expanding of the mission to allow dissident congregations of TEC and the Diocese to affiliate with CANA, and the formation of the ADV, unquestionably occurred in response to the disputes that had occurred within TEC. However, it is equally clear that the revision of CANA’s mission and the formation of the ADV did not occur as a result of the division within TEC and the Diocese. Indeed, the dissenting congregations maintained that they had “determined to disaffiliate from TEC and the Diocese” in order to join CANA, a pre-existing polity within the Church of Nigeria. Thus, while CANA is an “alternative polity” to which the congregations could and did attach themselves, we hold that, within the meaning of Code § 57-9(A), CANA is not a “branch” of either TEC or the Diocese to which the congregations could vote to join following the “division” in TEC and the Diocese as contemplated by Code § 57-9(A).

The Court then summed up its analysis in these words (pp. 30-31; bold emphasis added):

In summary, we conclude that the evidence does not establish that there was a division in the Anglican Communion for purposes of the application of Code § 57-9(A). We further conclude that a proper construction of Code § 57-9(A) requires a petitioning congregation to establish both that there has been a division within the church or religious society to which it is attached and that subsequent to that division the congregation seeks to affiliate with a branch derived from that same church or religious society. While the branch joined may operate as a separate polity from the branch to which the congregation formerly was attached, the statute requires that each branch proceed from the same polity, and not merely a shared tradition of faith. The record in these cases shows that the CANA Congregations satisfied the first of these requirements in that there was a division within TEC and the Diocese, but not the second, as CANA clearly is not a branch of either TEC or the Diocese. Accordingly, we hold that the circuit court erred in ruling that the CANA Congregations’ petitions were properly before the court under Code § 57-9(A).

The application for rehearing filed last week calls the Court's attention to the fact that in finding that "CANA is clearly not a branch of either TEC or the Diocese," the Court actually misread the factual record. Here is the relevant passage from the brief in support of the application:

In support [of its conclusion], the Court cited the following factual understandings:

(1) that "when it was initially formed, CANA was a mission of the Church of Nigeria designed to minister to expatriate members of that church in North America"-and thus that CANA was "a preexisting polity" that "descends from the Church of Nigeria and CANA, not the Diocese or TEC"; and

(2) that "[t]he subsequent expanding of [CANA's] mission to allow dissident congregations of TEC and the Diocese to affiliate with CANA, and the formation of ADV, unquestionably occurred in response to the disputes that had occurred in TEC," but "did not occur as a result of the division within TEC and the Diocese."

Op. 29. As we will show, each of these findings rests on a "mistake of fact," justifying rehearing. Tanner, 266 Va. at 172, 580 S.E. 2d at 851-52.

The application then recites all of the evidence in the record that related to the foundation of CANA, as follows:

First, while CANA was originally formed to minister to Nigerian expatriates, those expatriates were not members of the Church of Nigeria. They and their clergy were members of TEC. As the trial testimony showed:

Q Bishop Minns, can you tell me what the acronym CANA stands for?

A The Convocation of Anglicans in North America.

Q Has the Convocation of Anglicans in North America always been the acronym that CANA stood for?

A No, it's not. It was originally the Convocation of Anglican Nigerians in North America.

Q Why was that the original name of CANA?

A Because it's a structure set up to provide for the ecclesiastic -- I mean, the Episcopal and pastoral oversight for ex-patri[ate] Nigerian clergy and congregations who had broken away from the Episcopal Church.

Q So were these clergy and congregations CANA's first members?

A Yes, they were.

JA 2155 (emphasis added). As Bishop Minns later elaborated:

Q Now, I think I heard you testify that the original CANA, which I think you said was the Convocation of Anglican Nigerians [in] America, did I get that right?

A You did.

Q All right. That that consisted of Nigerian -- no, that the vast majority of its members were Episcopalians. Did I hear you correctly?

A In the beginning, yes. Were involved with the Episcopal Church, yes.

Q What?

A They were functioning within the Episcopal Church, yes.

Q But were they Episcopalians?

A Yes.

JA 2205-06 (JA excerpts attached). As this testimony shows, CANA's first members were fully "Episcopalians." No contrary evidence was introduced. In fact, as TEC's own witness readily admitted, CANA "provides ecclesiastical oversight for former members of the Episcopal Church" and "ministers to individuals who have left the Episcopal Church." JA 2567-68 (Douglas).

Here, both sides agreed that CANA's initial members came entirely from the Episcopal Church (USA). How, then, could Judge Bellows' finding that CANA was a "branch" of ECUSA within the meaning of the statute be rejected as having no evidence to support it? Listen to the words of the Supreme Court again (emphasis added as before):

We further conclude that a proper construction of Code § 57-9(A) requires a petitioning congregation to establish both that there has been a division within the church or religious society to which it is attached and that subsequent to that division the congregation seeks to affiliate with a branch derived from that same church or religious society. While the branch joined may operate as a separate polity from the branch to which the congregation formerly was attached, the statute requires that each branch proceed from the same polity . . .

What the Supreme Court has failed to appreciate here is that CANA received episcopal oversight from the Anglican Church of Nigeria, once its members had all separated from the Episcopal Church (USA), because they could no longer live under episcopal oversight from the latter church. Pastoral oversight is not equivalent to "polity" (though the two are related, through the discipline of the oversight). Moreover, as far as I know, CANA's polity is not the same as the polity of the Anglican Church of Nigeria -- although it does not appear as though any evidence came in on that point.

The application goes on to point out that the Virginia Supreme Court has its facts wrong when it describes CANA as "a pre-existing polity within the Church of Nigeria." CANA did not come into existence until 2005 -- well after the consecration of V. Gene Robinson in 2003 which eventually, among other consequences, resulted in the formation of CANA.

The second argument of the application for rehearing concerns the Anglican District of Virginia itself, and is in my view even stronger than the one with regard to CANA. ADV, the brief points out, was not formed as a legal entity until the congregations in question had decided to follow the Protocol drawn up by the Diocese of Virginia for departing parishes. It was formed specifically as an entity to provide governance for those particular parishes, and was organized not under the Church of Nigeria, but under Virginia law. There is no requirement that its members belong to CANA, and some of them do not:

Rehearing is independently warranted because the record also forecloses the Court's branch analysis as to ADV. Unlike the Court's analysis of the statute's "church," "attached," and "division" prongs -- which considered the status of TEC and the Diocese separately -- the Court's "branch" analysis treated CANA and ADV as synonymous, overlooking critical facts establishing that ADV is a "branch" even if CANA is not. In fact, the Court's analysis of whether ADV was a "branch" consisted of one sentence: "Likewise the ADV, as a district of CANA, descends from the Church of Nigeria and CANA, not the Diocese or TEC." Op. 29. Respectfully, however, that statement cannot be squared with this record, even assuming, arguendo, that the Court properly reached a contrary conclusion as to CANA.

Once again, there was no dispute as to the underlying facts:

. . . As the Court noted, "in 2005 Bishop Lee created a new commission 'to give attention to this rising threat of division in the Diocese.'" Op. 7. In September 2006, this commission expressly recognized "the division which may cause some to 'walk apart'" (JA 3034) and "promulgated a 'Protocol for Departing Congregations'" to follow, including "procedures for congregations to conduct votes 'regarding possible departure from the Diocese.'" Op. 7.

The Congregations followed the Protocol, creating ADV days before their votes. JA 2991 (ADV articles dated 12/4/06). . . . And as ADV's articles state, ADV was incorporated as "an association of Virginia churches, together with their clergy and laity, who join together to realign traditional Anglicans in Virginia displaced by the election of The Episcopal Church to walk apart from the Anglican Communion." JA 2988 (emphasis added). ADV thus formed "as a result of the division." Op.29.

[Also], as the foregoing evidence shows, ADV is not a "pre-existing polity" that "descends from the Church of Nigeria" rather than "the Diocese." Id. ADV is separate and distinct from CANA: It is "a discrete ecclesiastical and legal structure" incorporated under "the Virginia Nonstock Corporation Act." JA 2988 (ADV articles). . . .

Nor was ADV formed by the Anglican Church of Nigeria. True, the incorporators of ADV chose to place it "provisionally . . . under the ecclesiastical jurisdiction of [CANA]" -- and thus to bring it "into full communion with the . . . constituent members of the Anglican Communion." JA 2988 (emphasis added). But ADV is legally independent and has its own board; only one sentence in ADV's articles refers to CANA; and the decision to affiliate with CANA and the Church of Nigeria was ADV's own (provisional) choice. Indeed, ADV's members include several congregations that disaffiliated from the Diocese but are not members of CANA -- further confirming that ADV is properly viewed as a descendant of the Diocese, not the Anglican Church of Nigeria. JA 2475-77 (Allison); JA 2175-77 (Minns).

The attorneys make another important point about the division statute, and the Supreme Court's interpretation of it, in an accompanying footnote:

Like others that disaffiliated from TEC but wished to remain "'a part of the worldwide [Anglican] church" (Op. 8), these congregations affiliated with another Anglican province. JA 2475-77 (Allison); JA 2175-77 (Minns). We do not read the Court's opinion to hold that the bare fact of affiliation with the Church of Nigeria disqualified CANA and ADV as "branches." If that were a proper reading of § 57-9, it would violate the First Amendment by expressly discriminating against disaffiliating congregations based on "denominational preference." Larson v. Valente, 456 U.S. 228, 244 (1982) ("one religious denomination cannot be officially preferred over another").

The brief closes by reiterating that findings based on facts that were undisputed below cannot be set aside by an appellate court:

. . . The Court's analysis turned on what it called an "erroneous" "finding." Op. 28. But any such finding was necessarily factual, and factual findings may be reversed only if "plainly wrong or without evidence to support them." Perel v. Brannan, 267 Va. 691,698, 594 S.E.2d 899, 903 (2004). That is not the case here.

Thus the application asks the Virginia Supreme Court to rehear the case in order to bring its conclusions into line with the undisputed facts as found below. At a minimum, the Court should clarify its instructions on remand to allow "for further factual findings as to whether ADV, CANA, or both are branches under the Court's new reading of § 57-9. That would be especially appropriate given that the Court's decision marks the first time in 143 years that the Court has addressed the statute's core requirements, and sets forth an analysis that the circuit court understandably had no opportunity to apply." (Footnotes omitted.)

In this attorney's view, this is a much better strategy to have followed than the one suggested in some quarters following the decision, which would have had the congregations holding new votes, in order to try to requalify under the statute as now interpreted. By pointing out to the Court how it misread certain key facts, which were not in dispute, the application gives the Court what it has recognized in its precedents is the strongest reason to grant a rehearing: when the Court has "based [its] decision on a mistake of fact."

It takes the vote of just one justice for the application to be granted.

The Virginia Supreme Court's decision concludes by remanding the case to Judge Bellows, with directions that he dismiss the parishes' petitions under the division statute. Such a dismissal could only be ordered if their previously offered evidence failed to satisfy the statute as a matter of law. But that evidence, as the application notes, all came in without any opposition or dispute.

To refuse to grant the application for rehearing, therefore, would result in a grave injustice -- an appellate court refusing to respect factual findings which the trial court itself had no discretion to reject. (The alternative, as the brief points out, is to read the statute in such a way as to discriminate unconstitutionally among denominations.) Appellate courts are not equipped to try cases and make factual findings; that is why they are required to accept the facts as the trial court found them. Every trial and appellate lawyer knows this, and each justice who heard this case was once a lawyer, as well. One has to hope, therefore, that at least one of them will see the merit in granting the application.

Yesterday, in York

Although an Anglican Curmudgeon, I do not consider myself a Church of England "Curmudgeon", for the obvious reason that I do not belong to the Church of England. The following critique of what happened at the Church of England's General Synod yesterday should not be taken as representing any of the current factions in the debate over female bishops in the Church of England. What I feel constrained to point out are the longer-term consequences for the Church of England's position in the Anglican Communion should yesterday's vote on the amendment proposed by the Church's Archbishops prove decisive.

Although General Synod still has many more proposed changes to consider, the divisions over the Archbishops' measure contain all that is necessary to divide the Church of England even further than it has been divided to date. The irony of the vote yesterday is that, while a majority in the Church of England are committed to the ordination of women to the episcopate, a majority were also in favor of the compromise proposed by the Archbishops, which was designed to keep the Church from tearing itself apart. Nevertheless, the Archbishops' measure failed to pass all three orders in General Synod. In the House of Bishops, it passed handily, by a vote of 25-15. In the vote by the laity, it also succeeded by a vote of 106 to 86, with 4 abstentions. But in the vote by the clergy order, the measure garnered 85 votes in the affirmative, to 90 in the negative, with 5 abstentions. Thus the anomalous result: taken overall, there were 216 members of Synod who favored the measure, while only 191 opposed. Nevertheless, because each order did not vote in favor, the measure on the whole failed to pass Synod, and so the change to the legislation which it proposed was rejected.

It is instructive to delve beneath the bare numbers. At stake is proposed legislation that would enable women to be ordained as bishops for the first time in the Church of England, while the Synod passed in 1992 changes which allowed the ordination of women as priests. It was the latter change which made it possible for the clergy order to defeat the Archbishops' compromise measure, since there are now a significant number of women clergy delegates to Synod as a result of the changes enacted in 1992. The number so elected to Synod easily exceeds the plurality of 5 by which the Archbishops' measure went down to defeat among the clergy.

In short, the women priests in Synod combined with a sufficient number of male priests to ensure, by a bare minimum, that the wisdom of the other orders in the Church of England would not be put into practice. And in that description of the result is all the data that anyone needs to conclude that the admission of women to the priesthood in the Church of England was just the first step in a widening gyre. There will be no turning back: after the approval of the ordination of women to the episcopate, the numbers will so change in the Church of England's House of Bishops, and in the lay delegates as well, as to make inevitable the ordination of LGBT's to the episcopate. And at that point, the Church of England -- in whatever form it then remains -- will be indistinguishable from ECUSA.

I recognize that there are those who, like Damian Thompson, see these developments as positive in the long run for the Roman Catholic Church -- since those who are against the ordination of women to the episcopate are likely to be most sympathetic to the alternative being currently offered by Pope Benedict XVI. To the extent the Roman Catholics' numbers grow as a result of the defeat of the Archbishops' compromise, however, simply drives home the more what that compromise was all about. As illustrated by this letter from a member of WATCH's national committee, the opponents of the compromise have set themselves against any internal resolution of the current difficulties in the Church of England by working within the confines of its polity. It is, paradoxically, only those who have utterly given up on that polity who will find the rejection of the Archbishops' measure a positive step for the Church of England -- since it was a rejection not by a majority, but by a minority of orders. And, most significantly, the order whose vote proved decisive to the rejection was the order to which women had already been admitted.

At the risk of becoming even more controversial, I would suggest that the vote in yesterday's Synod on the Archbishops' proposals represents the unavoidable consequences of the Church of England's opening the door to women's ordination in 1992. Many who voted for that measure must have done so on the ground that "it does not put women into the apostolic succession, and so by voting for it, we can appear to be post-modern intellectuals without committing the Church to women in the episcopacy." Well, that was 1992, and now we have 2010. Having gotten their foot in the door in 1992, the women priests of the Church of England were not about to resist the ordination of women bishops when that issue came to a vote. Yesterday's result, a negative victory achieved by just five votes out of the 407 cast, and in which a majority of 216 voted to adopt the amendment, signifies not so much a democratic outcome in the Church of England as it does bloc thinking by a determined and well-organized minority.

What is more, the absolute refusal to compromise to the smallest degree signifies the rigidity with which women bishops will demand full recognition from everyone in the Church. We have already seen this phenomenon in ECUSA: the ordination of women was introduced with the understanding that it would be optional for dioceses. Then, once a sufficient power base had been accumulated at General Convention, what had been optional suddenly became mandatory, within the space of only twelve years. And one by one, those bishops who maintained their opposition to women's ordination were deposed and driven out of the Church.

Although after Synod the draft legislation has to go out to the individual dioceses for approval, and it may still be possible for a compromise to be worked out, I think Cranmer's Curate reads the tea leaves correctly, and the Vicar of Ugley is not far behind. Radical change is in store for the Church of England, and God help those who would stand in the way. (Notice how the leftist press treats the story: all about personalizing resentment against the Archbishop of Canterbury, and not one word about the fact that more Synod members voted to support him than those who did not.) Dissent will be neither accommodated nor tolerated; the politically correct will see to that. What will be fascinating is to see how these predictions will turn out.

So much for the prospects for the Church of England -- what will these mean for the Covenant, and for the Anglican Communion at large? I see it as weakening, not strengthening, the ties that still connect provinces, primarily because of the inevitability that same-sex marriage will now gain a foothold in the Church of England, with the consequences already mentioned earlier. The Church of England will look more and more like ECUSA, and that will drive the Communion farther apart, not bring it together. Any Covenant that is acceptable to the ECUSA group will not be acceptable to the other, and vice versa. With yesterday's vote, the Communion's fate is pretty much determined.

Five votes -- and five abstentions, too -- that changed history. In time, people may forget. But it all started yesterday, in York.

[UPDATE 07/12/2010: The Archbishop of Canterbury made some well-tempered remarks in an address to Synod this morning, urging that it move forward with its work (the text of the remarks is downloadable here). All may not yet be lost. After the measure comes back from the dioceses, it will have to pass each House of the General Synod by a two-thirds majority in order to become law, and that is a tall order. As this story in The Independent informs us, those against the measure as currently drafted will need to elect to Synod enough representatives to constitute, in any one of the three Houses, an opposition of one-third plus one of its members, and the measure will be defeated. The narrow defeat of the Archbishops' compromise may have galvanized opponents to attempt to do just that (elections are held this October). And if that is how things turn out, the five votes in York will still remain historic, but for another reason.]