The San Joaquin Lawsuit: an Update

The Diocese of San Joaquin is a California unincorporated association that was, from 1961 to December 2007, one of the dioceses of the national Episcopal Church, a constituent member of the worldwide Anglican Communion. The members of the Diocese were the local Episcopal churches (called "parishes" and "missions") located in fourteen Central Valley counties of California. The Diocese was, and continues to be, governed by its internal "constitution" and "canons" (akin to bylaws). The highest legislative body of the Diocese is its Annual Convention.

On December 8, 2007, the delegates to the Diocese’s Annual Convention voted overwhelmingly (90 percent) to end the Diocese’s spiritual affiliation with The Episcopal Church and affiliate instead with the Anglican Province of the Southern Cone of America, another national member church of the worldwide Anglican Communion. The Diocese of San Joaquin is the first diocese to leave the national Episcopal Church since the Civil War, when nine dioceses departed to form an independent church in the southern states. 

The Presiding Bishop of the Episcopal Church, the Most Rev. Katharine Jefferts Schori, responded to the Diocese’s departure by doing three things: she declared that a motion to depose Bishop John-David Schofield had carried the House of Bishops, and that his see was now vacant; she declared that she refused to recognize the Standing Committee of the Diocese as its Ecclesiastical Authority, or for any other purpose; and she called on short notice a "special convention" of the parishioners remaining in TEC to consent to her designation of the Rt. Rev. Jerry A. Lamb, retired Bishop of the Diocese of Northern California, as Provisional Bishop of the Diocese of San Joaquin. Once those steps were accomplished, the special convention authorized Bishop Lamb to file suit against Bishop Schofield and the diocesan trust entities he controlled to acquire title to all of the diocesan properties, investments and accounts. TEC joined Bishop Lamb and the newly organized Episcopal "Diocese of San Joaquin" as a plaintiff in the lawsuit.

Plaintiffs subsequently amended their complaint to add Merrill Lynch as a defendant, because it was the custodian of the diocesan trust funds. Merrill Lynch has requested the Fresno Superior Court to be allowed to "interplead" all the funds it has in its possession, and to be dismissed from the lawsuit. By turning over the funds to the control of the court, and asking it to determine who is entitled to them, Merrill Lynch is abandoning any role as custodian and leaving it to the court to sort matters out. Pending the court’s order on the interpleader request, Merrill Lynch has on its own frozen all the funds so that no money may be withdrawn from the accounts without a joint agreement by the concerned parties.

Bishop Schofield and the diocesan trust entities have now responded to the first amended complaint. First, they have asked the court to strike it, on the ground that it was not drawn in compliance with California Rules of Court. Those Rules require, for instance, that in a case with multiple plaintiffs, as there are here, the complaint separately identify each plaintiff who is asserting each separate cause of action. The first amended complaint sets out seven causes of action in 142 numbered paragraphs, but it does not identify which allegations are made by The Episcopal Church, which are made by Bishop Lamb, and which are made by the plaintiff "Diocese of San Joaquin."

The defendants have also demurred to the first amended complaint. A demurrer in law basically challenges the complaint’s adequacy, by saying, in effect: "So what? Even if all you allege is true, you have not stated a case on which the court can grant you any relief."

The first ground on which defendants have demurred is that among the funds held by Merrill Lynch which plaintiffs are claiming, are moneys deposited in the names of two individual parishes: St. John’s of Tulare, and St. John’s of Porterville. Plaintiffs, however, neglected to join those parishes as defendants, and thus the court cannot declare who owns the funds without the churches being represented in the lawsuit. 

St. John's Episcopal Church in Tulare, however, has voted not to join the Diocese in aligning with the Province of the Southern Cone. Its rector, the Rev. Robert G. Eaton, also has declared his intention of remaining with The Episcopal Church. So let's understand what is actually happening on the ground here.  The Episcopal Church and its designated agent, Bishop Lamb, are claiming to own or control money belonging to one of their own parishes that has voted to remain in The Episcopal Church.  They are doing so regardless of the consequences, in order to maintain their fiction that Bishop Schofield "wrongfully" relinquished control of these funds to St. John's long after it had grown beyond the status of a diocesan mission. Simply by the expedient of a letter addressed to Merrill Lynch, The Episcopal Church has succeeded in having all the investment accounts of its rival Diocese, the Anglican Diocese of San Joaquin, frozen---along with accounts belonging to churches that have chosen to remain Episcopal. Is it not remarkable that a New York investment firm would so act on the strength of nothing more than a letter from another New York entity headquartered at 815 Second Avenue? Could any of us have succeeded in having Merrill Lynch freeze a rival's investment funds by the simple act of sending Merrill Lynch a letter? This entire episode calls for the illumination a lawsuit will bring.

Next, defendants say that the plaintiffs failed to describe the real properties they are claiming to own (other than some parcels in Kern and Madera Counties) with any degree of particularity, so that they can be readily identified. Finally, the defendants point out that plaintiff Jerry Lamb, individually, is asking for relief that properly should be requested by the religious corporation sole of which he claims to be the incumbent. The corporation sole is the entity which by law is authorized by the Diocese to hold title to diocesan property, but it is not a party to the lawsuit as currently drafted. (It is a little like the president of Exxon Corporation suing in his own name, but asking for relief that has to be given, if at all, to the company which he heads.)  

So the first skirmishes have taken place, and it is now up to the plaintiffs to decide whether to redraft their complaint and change some of the parties to it, or to try to convince the court that their complaint as filed is adequate, and needs no changes. The court will not assign a date for trial until the case is "at issue"— meaning that the allegations of the complaint have each been responded to, and the parties are ready to conduct discovery and then go to trial. A hearing on the demurrers and on the motion to strike will take place in Fresno County Superior Court the afternoon of August 20.

Dr. Williams, Sharia Law, and GAFCON

The Archbishop of Canterbury, Dr. Rowan Williams, created quite a stir last February when he suggested that the British legal system would do well to consider how it might accommodate the application of sharia law in appropriate circumstances. Rereading his speech on that subject, I find that he might want to consider applying much of what he said to his own (and other Anglicans') approach to the GAFCON movement in their midst.

The Archbishop, remember, greeted the GAFCON statement by asserting that "the vast majority of Anglicans in every province" would have no objections to "the tenets of orthodoxy" as set out in the Jerusalem Declaration. His concerns were rather with the issues of legitimacy raised by the formation of an independent body of Primates, and by the assertion that its members will not respect the diocesan borders of those bishops whom they regard as endorsing heretical views. 

Those concerns sound remarkably like the ones that the Archbishop addressed in his lecture at the Royal Courts of Justice last February, when he was telling the audience that the system of sharia law could exist within the British legal system without undermining the legitimacy and authority of British courts and the rule of law. I have reproduced below a portion of the Archbishop's speech, in which I have replaced the word "sharia" with "orthodoxy", words relating to Muslims with words describing the followers of GAFCON, and references to (British) law with words relating to the Anglican Communion:

. . . [I]t is important to begin by dispelling one or two myths about [orthodoxy]; so far from being a monolithic system of detailed enactments, [orthodoxy] designates primarily . . . 'the expression of the universal principles of [Anglicanism and] the framework and the thinking that makes for their actualization in human history'. Universal principles: as any [orthodox] commentator will insist, what is in view is the eternal and absolute will of God for the universe and for its human inhabitants in particular; but also something that has to be 'actualized', not a ready-made system. If [the Bible] designates the essence of the revealed Law, [orthodoxy] is the practice of actualizing and applying it; while certain elements of [orthodoxy] are specified fairly exactly in the Bible and in the [tradition] recognised as authoritative in this respect, there is no single code that can be identified as 'the' [orthodox brand of Anglicanism]. And when certain [provinces adhere to] what they refer to as [orthodoxy] or when certain [GAFCON] activists demand its recognition alongside [contemporary Anglicanism], they are usually referring not to a universal and fixed code established once for all but to some particular concretisation [as embodied in the recent Jerusalem Declaration]. . . 

Thus, in contrast to what is sometimes assumed, we do not simply have a standoff between two rival [theological] systems when we discuss [orthodoxy] and [current Anglicanism]. On the one hand, [orthodoxy] depends for its legitimacy not on any human decision, not on votes or preferences, but on the conviction that it represents the mind of God; on the other, it is to some extent unfinished business so far as codified and precise provisions are concerned. To recognise [orthodoxy] is to recognise a method of [theology] governed by revealed texts rather than a single system. In a discussion based on a paper . . . at a conference last year . . . the point was made by one or two [Anglican] scholars that an excessively narrow understanding of [orthodoxy] as simply codified rules can have the effect of actually undermining the universal claims of the [Bible].

See how it fits? The Archbishop's case for sharia law is a pretty good parallel for GAFCON's case for Anglican orthodoxy.  Now look at how the substitution fits into Dr. Williams' argument that sharia law (orthodoxy) does not have to compete for legitimacy with British common law (Anglicanism); both can coexist in the same country (Communion):

But while such universal claims are not open for renegotiation, they also assume the voluntary consent or submission of the believer, the free decision to be and to continue a member of [GAFCON] is not, in that sense, intrinsically to do with any demand for [orthodox] dominance over [Anglicanism]. Both historically and in the contemporary context, [orthodox provinces] have acknowledged that [the] membership of [GAFCON] is not coterminous with membership in a particular [Anglican church] . . . . Such societies, while not compromising or weakening the possibility of unqualified belief in the authority and universality of [orthodoxy], or even the privileged status of [GAFCON], recognise that there can be no guarantee that the [church] is religiously homogeneous and that the relationships in which the individual stands and which define him or her are not exclusively with other [orthodox believers]. There has therefore to be some concept of common good that is not prescribed solely in terms of revealed Law, however provisional or imperfect such a situation is thought to be. And this implies in turn that the [orthodox believer], even in a predominantly [orthodox province], has something of a dual identity, as citizen and as believer within the community of the faithful.

. . . [I omit here a long and scholarly discursus.]

So the second objection to an increased legal recognition of communal religious identities can be met if we are prepared to think about the basic ground rules that might organise the relationship between [provinces], making sure that we do not collude with unexamined systems that have oppressive effect or allow shared public liberties to be decisively taken away by a supplementary jurisdiction. Once again, there are no blank cheques. . . .

Here, Dr. Williams is making the point that society does not have to accept just any "unexamined systems that have oppressive effect," or to "allow shared public liberties to be decisively taken away by a supplementary jurisdiction", i.e., a jurisdiction within the Communion in my substituted version. Does that not apply to the Anglican Communion's accepting the "unexamined" theology of The Episcopal Church or of the Anglican Church of Canada, and to its tolerance of their deposing clergy who transfer to other Anglican provinces? As he says, "there are no blanque checks." For if one tolerates such oppression in the name of diversity, society reduces to a war of "all against all", in which "a narrowly rights-based culture fosters . . . a manically litigious atmosphere" (such as the one within TEC today): 

. . . This is not to reduce [the Communion] itself primarily to an uneasy alliance of self-determining individuals arguing about the degree to which their [autonomy] is limited by one another and needing forcible restraint in a war of all against all – though that is increasingly the model which a narrowly rights-based culture fosters, producing a manically litigious atmosphere and a conviction of the inadequacy of customary ethical restraints and traditions – of what was once called 'civility'. The picture will not be unfamiliar, and there is a modern legal culture which loves to have it so. But the point of defining legal universalism as a negative thing is that it allows us to assume, as I think we should, that the important springs of moral vision in a [church] will be in those areas which a systematic abstract universalism regards as 'private' – in religion above all, but also in custom and [tradition]. The role of '[church]' law is not the dissolution of these things in the name of universalism but the monitoring of such affiliations to prevent the creation of mutually isolated communities in which [religious] liberties are seen in incompatible ways and individual [clergy] are subjected to restraints or injustices for which there is no [legal] redress. 

In short, the Communion is larger than any individual church or group of primates within it, and the important principle is that all are seen as contributing to its common "well-being and order", including especially those striving to uphold orthodoxy within its tradition:

The rule of [interdependence] is thus not the enshrining of priority for the universal/abstract dimension of [a given church's polity] but the establishing of a space accessible to everyone in which it is possible to affirm and defend a commitment to [orthodox principles] as such, independent of membership in any specific [church] or tradition, so that when specific [churches] or traditions are in danger of claiming finality for their own boundaries of practice and understanding, they are reminded that they have to come to terms with the actuality of [Anglican interdependence] - and that the only way of doing this is to acknowledge the category of '[Anglican core beliefs]' – a non-negotiable assumption that each [church] (with [its] historical and social affiliations) could be expected to have a voice in the shaping of some common project for the well-being and order of [the Anglican Communion]. It is not to claim that specific community understandings are 'superseded' by this universal principle, rather to claim that they all need to be undergirded by it. The rule of [Scripture and tradition] is – and this may sound rather counterintuitive – a way of honouring what in the [Anglican Communion] is not captured by any one form of corporate belonging or any particular history, even though the [Anglican Communion] never exists without those other determinations. Our need . . . is for the construction of 'a moral framework which could expand outside the boundaries of particular narratives while, at the same time, respecting the narratives as the cultural contexts in which the language [of Communion] is learned and taught' . . . .

Thus, by giving orthodoxy its due, and by allowing it room to express itself and function as "a moral framework which could expand outside the boundaries of particular narratives," there is no threat to the traditional "hierarchical monopoly" represented by the four Instruments of Unity (the Archbishop of Canterbury, the Lambeth Conference, the Anglican Consultative Council and the Primates Meeting):

But to return to our main theme: I have been arguing that a defence of an unqualified [Anglican hierarchical] monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework. At the moment, as I mentioned at the beginning of this lecture, one of the most frequently noted problems in the [Communion] in this area is the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to 'activate' this whenever called upon. . . .

In other words, the election and consecration as bishop of a man like V. Gene Robinson does not have to require every other member of the Anglican Communion to recognize him as a bishop.  The Archbishop continues:

Earlier on, I proposed that the criterion for recognising and collaborating with communal religious discipline should be connected with whether a communal jurisdiction actively interfered with liberties guaranteed by the wider society in such a way as definitively to block access to the exercise of those liberties; clearly the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right. 

Notice that no substitutions are necessary with the language the Archbishop uses here. The refusal of most of the Anglican Communion---including the Archbishop himself---to recognize the legitimacy of V. Gene Robinson as a bishop does not constitute a denial of any "right" that he has to be recognized as such, because the refusal is grounded in appropriate religious belief.

The point has been granted in respect of medical professionals who may be asked to perform or co-operate in performing abortions – a perfectly reasonable example of the law doing what I earlier defined as its job, securing space for those aspects of human motivation and behaviour that cannot be finally determined by any corporate or social system. It is difficult to see quite why the principle cannot be extended in other areas. But it is undeniable that there is pressure from some quarters to insist that conscientious disagreement should always be overruled by a monopolistic understanding of jurisdiction.

Yes, indeed; I believe that such pressure is coming from none other than The Episcopal Church and the Anglican Church of Canada. 

Dr. Williams concludes with a plea that "rights thinking" (i.e., the attitude that people are endowed with certain rights, such as the "right" to be a bishop of the Church) not be allowed to trump matters of "custom and conscience", in words that once again could apply to how GAFCON should be received: 

I labour the point because what at first seems to be a somewhat narrow point about how [GAFCON] should or might be regarded in our [Anglican Communion] in fact opens up a very wide range of current issues, and requires some general thinking about the character of [that Communion]. It would be a pity if the immense advances in the recognition of human rights led, because of a misconception about legal universality, to a situation where a person was defined primarily as the possessor of a set of abstract liberties and the [Communion]'s function was accordingly seen as nothing but the securing of those liberties irrespective of the custom and conscience of those groups which concretely compose a plural modern [church] . . . . [I]t might be possible to think in terms of what [one author] calls 'transformative accommodation': a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents'. . . . In such schemes, both jurisdictional stakeholders may need to examine the way they operate; a communal/religious nomos . . . has to think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law, and a universalist Enlightenment system has to weigh the possible consequences of ghettoising and effectively disenfranchising a minority, at real cost to overall social cohesion and creativity. Hence 'transformative accommodation': both jurisdictional parties may be changed by their encounter over time, and we avoid the sterility of mutually exclusive monopolies.

In other words, the Primates' Meeting and the Lambeth Conference might actually have to take some decisive steps about disciplining member churches that disregard their resolutions and communiques if they don't want the GAFCON Primates' Council to assume that role. Otherwise, they run the risk of becoming a "sterile exclusive monopoly." The Archbishop concludes:  

It is uncomfortably true that this introduces into our thinking about [our Communion] what some would see as a 'market' element, a competition for loyalty . . . . But if what we want socially is a pattern of relations in which a plurality of divers and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or [Communion] loyalty, it seems unavoidable. In other settings, I have spoken about the idea of 'interactive pluralism' as a political desideratum; this seems to be one manifestation of such an ideal, comparable to the arrangements that allow for shared responsibility in education: the best argument for faith schools from the point of view of any aspiration towards social harmony and understanding is that they bring communal loyalties into direct relation with the wider society and inevitably lead to mutual questioning and sometimes mutual influence towards change, without compromising the distinctiveness of the essential elements of those communal loyalties.

In conclusion, it seems that if we are to think intelligently about the relations between [GAFCON] and [the Anglican Communion], we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of [orthodoxy] or the nature of the Enlightenment. But as I have hinted, I do not believe this can be done without some thinking also about the very nature of [what binds us together]. It is always easy to take refuge in some form of positivism; and what I have called legal universalism, when divorced from a serious theoretical (and, I would argue, religious) underpinning, can turn into a positivism as sterile as any other variety. If the paradoxical idea which I have sketched is true – that universal law and universal right are a way of recognising what is least fathomable and controllable in the human subject – theology still waits for us around the corner of these debates, however hard our culture may try to keep it out. And, as you can imagine, I am not going to complain about that.

So, Dr. Williams---you may not have thought it when you said it, but your approach to GAFCON within the Anglican Communion might well be governed by the approach you urged Britain to take in regard to sharia law: a respectful tolerance of the sincerity of religious beliefs that underpin it, and an absence of fear for the consequences and changes that its introduction will mean for the Anglican Communion as a whole. "Theology [indeed] still waits for us around the corner of these debates, however hard our culture may try to keep it out." I pray that you will use your considerable gifts in that area to give GAFCON the assistance and support that it deserves in upholding core Christian doctrine.

We Have a Problem . . .

In this post, I want to compare and contrast certain words spoken and written by our Presiding Bishop, the Most Reverend Katharine Jefferts Schori.

Here she is at her most recent, reacting to the Statement issued at the end of GAFCON:

Much of the Anglican world must be lamenting the latest emission from GAFCON. Anglicanism has always been broader than some find comfortable. This statement does not represent the end of Anglicanism, merely another chapter in a centuries-old struggle for dominance by those who consider themselves the only true believers. Anglicans will continue to worship God in their churches, serve the hungry and needy in their communities, and build missional relationships with others across the globe, despite the desire of a few leaders to narrow the influence of the gospel. We look forward to the opportunities of the Lambeth Conference for constructive conversation, inspired prayer, and relational encounters.

Many others have commented on the insulting, demeaning tone signaled by the deliberate reference to the GAFCON Statement as an "emission." For now, just look at what she said in a statement issued on New Year's Day 2007:

Part of our evangelical task is making our worshiping communities welcoming in a deep, human, relational sense. The gospel is about radical hospitality, after all, and that is what we are meant to model.

The other side of this challenge is how we might speak good news in language and forms that people uneducated in Christianity can understand and welcome. If our language engenders fear, it is likely to drive people away. If it welcomes and invites, the possibility can be quite different.

This may not be seen in many places in the Episcopal Church, but consider your own reaction to “If you don’t believe the way we do, you’re going to hell.” Not only does hell not have much reality for the unchurched, there is an arrogance in that approach that many find repellent.

"Listening" was again her theme in a talk she gave just after the Primates' Meeting two months later in Tanzania:

Much has been said about the listening process urged by the last three Lambeth conferences. . . . I would like to encourage us as a church to consider how we ourselves might listen more carefully to those with whom we most vehemently disagree. Can we, in a focused way, pay attention to the grief and suffering, and the love for God and neighbor, in those in other places on the theological and rhetorical spectrum? If we gain nothing else from the coming months, that would be a great gift.

I have been in conversation already with the President of the House of Deputies about ways in which we can call the whole church to the kind of faithful listening that will be necessary before we make any decision. . . .

If we can lower the emotional reactivity in the midst of this current controversy we just might be able to find a way to live together. That was the genius behind the Elizabethan Settlement. A non-violent response to this situation will need space and time to operate, and perhaps an unexpected or even humorous response. While these issues are of major importance, it is our very intensity about them that is preventing a life-giving resolution.

Finally, as Lent continues, I ask you to continue to fast from ascribing motives to others, to seek Christ in the stranger, and to ask God to quiet your fears. May we continue to work and pray for those who die daily from hunger, lack of medical care, war, and oppression. Pray especially for those who suffer because of their minority status, whether sexual or theological, for in Christ we are all a minority. And, finally, give thanks to God who has created us in all our variety. As frustrating and annoying as that variety may be, it is the image of God.

This is a very interesting perspective: just who are the ones in the "theological minority"? According to her most recent statement quoted above, it is those who produced the Statement at GAFCON.

So The Episcopal Church has two faces. First, the one it presents to nonbelievers, of a warm, open and welcoming gathering of those who do not claim to have the unique answer to anything (we will just have to put up with the degree of upset this approach engenders among our own):

I have had the remarkable gift and opportunity in recent months to speak to people who don’t know much at all about the Episcopal Church or Christianity. Those opportunities have come through the secular media. Those interviews intentionally have avoided the language of Christian insiders for the reasons above.

The unfortunate result in some places has been anger when Episcopalians don’t recognize their own familiar language. Let me suggest a challenging exercise: How would you tell the great truths of our faith without using overtly theological language? How would you tell a new neighbor that God loves him or her without measure, and invite him or her to learn more? If we are going to hear that person’s story with grace, we have to leave the door open for a while.

And then, once you have been taken in by this approach, you may in time meet the other face of the Church, the one reserved for "insiders," that says: "Either go along with the program, or get out. And if you don't leave voluntarily (or maybe even if you do), we'll kick you out!"

Does anyone else see a problem here?

[P.S.: I am not sure that Father Tobias Haller's suggestion would be good for us to follow just now.]