California Supreme Court to Consider Constitutionality of Proposition 8

News has recently broken of the order filed today by the California Supreme Court agreeing to hear arguments directly on the constitutionality of Proposition 8, which was passed by California voters on November 4. The text of the order is here.

The order is significant for several reasons. First, the Supreme Court has agreed to accelerate the decision process. It has ordered all the cases filed challenging the ballot measure to be consolidated in one proceeding before it, and it has provided for an expedited briefing process. (The related story in the Sacramento Bee says that a court spokesman estimates oral arguments will take place in March 2009.)

Second, the order is significant because the Court denied the petition to prevent Prop. 8 from taking effect immediately---so it will remain in effect (and prevent further same-sex marriages) for a while, at least. (There was one dissenter from this denial---Justice Moreno, who would have voted for an immediate stay. The other six Justices disagreed---the three dissenters from the original decision, Justices Baxter, Corrigan and Chin, would naturally do so, while the others---Chief Justice George, and Justices Kennard and Werdegar---perhaps have an eye to the next time they are on the ballot for re-election.)

Third, the order is significant because it asks the parties to address these three questions in their briefs:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

(2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The second of the three questions is rather telling---it asks, in effect, whether the enactment of a Constitutional initiative interferes with the powers of the judicial branch. In other words, do they want to decide that only the Court gets to say what can be in the Constitution? (This really baffles me, since the power of the initiative is enshrined in the Constitution. Moreover, the distinction they have already drawn in their earlier decisions between an "amendment" and a "revision" would seem already to have safeguarded the separation of powers.)

Fourth, what is significant is what the Court does not ask to be addressed: its order says nothing about taking away the "rights" (actually, privileges) of a minority group, or invalidating the Proposition based on the fact that it supposedly "discriminates."

All in all, this is a unique order in several ways. Justice Kennard would grant the petitions only to the extent they request consideration of the third question above, dealing only with the effect of the Proposition on the marriages that occurred before its effective date. Does that mean she has had a change of heart, and now does not feel that she can overturn the vote of the majority?

Time will tell.

[UPDATE 11/20/2008: Be sure to read this quick overview of the petitioners' faulty legal arguments from John Hinderaker at the PowerLine blog.]

Bishop Wantland Knows His Canons

The Diocese of Ft. Worth having voted last weekend to leave The Episcopal Church to affiliate with the Province of the Southern Cone, there follows on the heels of this action the news that one of its assisting bishops, the Rt. Rev. William J. Wantland, the former diocesan of Eau Claire, has sent a letter to the Presiding Bishop asking that he be allowed to assume the status of a honorary member of the House of Bishops in The Episcopal Church.

Bishop Wantland is an expert in canon law, and in this shrewd move he demonstrates again that expertise. For it perfectly throws back on the Presiding Bishop and her coterie the hypocrisy of their bogus "depositions" of Bishops Cox, Schofield and Duncan---and soon probably of Bishop Iker as well---for allegedly "abandoning the communion of this Church."

At the Presiding Bishop's request, the House consented to "depose" Bishop Cox for performing episcopal acts for another province of the Anglican Communion; to "depose" Bishop Schofield for leading his diocese out of TEC for another province of the Anglican Communion; and to "depose" Bishop Duncan for so much as even thinking about and planning to have his diocese leave TEC for another province in the Anglican Communion. Now Bishop Iker's diocese, the Diocese of Ft. Worth, has also voted to leave, and even though he is no longer subject to TEC's jurisdiction, no doubt the Title IV Review Committee will soon dutifully lay charges before the Presiding Bishop so that she can first inhibit him, and then have him "deposed" at the next meeting of the House of Bishops.

As a bishop assisting in the Diocese of Ft. Worth, Bishop Wantland wants to stay with his diocese even though it has left the Episcopal Church. So he has invoked a little-known provision in the General Rules of the House of Bishops, which reads as follows (part of Rule XXIV):

. . . any Bishop of this Church who removed from the jurisdiction of this Church to the jurisdiction of a Church in the Anglican Communion may be continued in relationship to this House as an honorary member. Thirty days prior to each stated or called meeting of the House such honorary members shall give written notice of their intention to be present to the Presiding Officer of this House. Seat and voice shall then be accorded such honorary members, upon the nomination to the House by the Presiding Officer. No vote shall be accorded the honorary member.

Fits the situation at hand perfectly, does it not? By the actions of his diocese, Bishop Wantland has been "removed from the jurisdiction of this Church to the jurisdiction of a Church [the Province of the Southern Cone] in the Anglican Communion." This Rule lets him ask to remain affiliated with the House of Bishops as an honorary member, with seat and voice but no vote. (There will be be taken up for second reading at GC2009 next June a proposed Constitutional amendment [Res. A020 at GC2006] to confine the right to vote in the House just "to all bishops with jurisdiction, Bishops Coadjutor, Bishops Suffragan, Assistant Bishops and every bishop holding an office created by General Convention." This amendment, when passed, will deprive all "resigned" [i.e., retired] Bishops of their present right to vote.)

Thus it will be most interesting to see how the Presiding Bishop treats his request. I do not mean to ask what will happen if Bishop Wantland gives the required notice that he plans to attend the next meeting of the House, because the Rule states that no action on the request is required unless and until he actually shows up for the meeting in question. (Should he do so, the Rule provides only that the Presiding Officer of the House at the meeting "nominate" him for honorary membership; it is unclear whether a vote on the nomination would be taken.) No, what I see taking place is something more important: by sending the letter and announcing his desire to assume the status of an honorary member, Bishop Wantland has cut the procedural legs out from any move to depose him as a bishop for "abandonment of communion".

Think about it: the Rule clearly makes provision for a member of the House of Bishops to change his status, upon his having "removed from the jurisdiction of this Church to the jurisdiction of a Church in the Anglican Communion", from that of a regular to an honorary member. No resignation is required, since the bishop in question is still acting as a bishop of his diocese---just in another Church in the Anglican Communion. Nor is a legal deposition of the bishop so removed possible, since he is no longer subject to "the jurisdiction of this Church."

The House has clearly made provision for just such an event, by recognizing that the bishop in question, while no longer eligible to be a member, and not subject either to deposition or mandatory resignation, might desire to continue his affiliation with his former colleagues. And for that purpose it created the category of honorary membership. Having made express provision for just such an occurrence, it would be arbitrary and capricious to deny the benefit of the Rule to one of its own members. That is why I say it will be very interesting "to see how the Presiding Bishop treats his request."

If she purports to entertain charges of "abandonment", and to inhibit him preparatory to asking the House to consent to his deposition, he can with perfect aplomb respond: "I haven't abandoned any communion---I want to remain affiliated with the House, and to that end, I am following the canons and the Rules of the House to the letter. I ask that you do so as well."

Brilliant move, Bishop Wantland! The ball is now in the Presiding Bishop's court. Does anyone want to bet what she will do with it?

Hypocrisy? You Call That Hypocrisy??

The liberal blogs out there (check the links in my "AngliCannon to the Left" sidebar) are falling all over themselves about the supposed hypocrisy of the Dioceses of Ft. Worth and Quincy in leaving The Episcopal Church, when some years ago each of them sued a parish that left them.

This just goes to show the weakness of liberals---since they lack any ability to use logic, they simply cannot tell what is true hypocrisy from what is not. I know this will be a waste of time, but for the record, I will spell it out for them:

1. A diocese that leaves a church is not the same as a parish that leaves a diocese. There is nothing in TEC's Constitution or Canons that says a Diocese may not leave TEC, but there are provisions in all Diocesan canons that govern the obligations of a parish with respect to the diocese.

2. Let's take the example of the Diocese of Ft. Worth. The first two paragraphs of Article 14 of its Constitution, entitled "Title to Church Property," have read as follows since 1989 (I have added the bold for emphasis):

The title to all real estate acquired for the use of the Church in this Diocese, including the real property of all Parishes and Missions, as well as Diocesan Institutions, shall be held subject to control of the Church in The Episcopal Diocese of Fort Worth acting by and through a corporation known as "Corporation of the Episcopal Diocese of Fort Worth". All such property as well as all property hereafter acquired for the use of the Church and the Diocese, including Parishes and Missions, shall be vested in Corporation of the Episcopal Diocese of Fort Worth.

Corporation of the Episcopal Diocese of Fort Worth shall hold real property acquired for the use of a particular Parish or Mission in trust for the use and benefit of such Parish or Mission. The income from such property shall belong to such Parish or Mission, which will be responsible for expenses attributable thereto. Such property may not be conveyed, leased or encumbered by Corporation of the Episcopal Diocese of Fort Worth without the consent of the Rector, Wardens and Vestry of such Parish or Mission. Upon dissolution of such Parish or Mission, property held in trust for it shall revert to said Corporation for the use and benefit of the Diocese, as such.

(Canon 18 of the Diocesan Canons is to similar effect. Notice that this language is not inconsistent with the Dennis Canon, because that Canon, too, recognizes that parish property is held in trust for the diocese in which the parish is located. The Dennis Canon attempts to add another trust in favor of TEC itself---but we do not have to go there for purposes of my example: it was the Diocese of Ft. Worth, and not TEC, that sued the departing parish.)

3. Language in TEC's Constitution requiring each Diocese to make "an unqualified accession" to TEC's Constitution and Canons in order to join spells out a current condition for a diocese to be able to join TEC. It is not an ongoing requirement of membership---as I pointed out in this earlier post, several dioceses do not have any such language of accession in their Constitutions, yet no one questions their membership in TEC.

4. The language of Ft. Worth's Constitution, in contrast, requires the actual title of the parish property to be held in the name of the Diocesan Corporation. So in that case cited by the liberals, the diocese was simply going after property that was supposed to be in its own name. (I discussed the earlier case of the Diocese of Quincy in this post.)

5. If liberals were logical, they would see that this same logic would require the current Dioceses of Ft. Worth and Quincy to go after any parish that tried to leave the diocese by "staying" in TEC.

6. For in reality, there is currently only one diocese formerly affiliated with TEC in each of the geographical territories of Ft. Worth and Quincy, and there is no "diocese" that is currently so affiliated. (There cannot be one until TEC's General Convention gives its permission for one to be formed, and it doesn't meet for another eight months.)

7. Any parish thus "staying" in TEC has no diocese to join, unless a neighboring TEC diocese would agree to take it in.

8. It is to the great credit of the current leadership of the dioceses of Ft. Worth and Quincy that they are willing to allow this to happen, without filing any lawsuits to prevent it. As we know from what happened in San Joaquin, the putative "Episcopal diocese" was by no means as generous.

9. But liberals don't know how properly to use logic, so they babble on about the supposed "hypocrisy" of the dioceses in question.

10. Would you like proof, o ye of liberal bent, that you cannot recognize true hypocrisy when you see it? Fine: just show me more than one liberal blogger who admitted that what I called attention to in this post was hypocrisy. (One doesn't count, because Scott+ is the exception that proves the rule.)

Q. E. D.  I rest my case.