Thanks to the single-minded industry of a local television station in Indiana (but no thanks to any of the other media which should have covered the story), we learn of a massive rip-off of US taxpayers by illegal immigrants -- and the IRS is doing exactly nothing about it. The amount illegally claimed each year is growing -- naturally -- by leaps and bounds, to where (at $4.2 billion, according to the latest figures) it amounts to ten percent of the amount the IRS collects each year from auditing (and harassing) legitimate taxpayers.
Watch the video, and see how this makes you feel toward the IRS:
If it the video did not load for any reason, here is a link to the original.
And here is the station's follow-up:
(Link to second video here.) The latter is even more telling -- because it shows that Congress is unwilling to stop the practice on its own, and expects to hear from you if you want them to act.
How's that for a government for you? Caught in the act of handing out free money, it sees nothing wrong, and goes right on doing so, while asking that you comply with the law anyway.
The gods have made us all crazy; they must have America's destruction in mind.
(H/T: Martial Artist)
Wednesday, May 9, 2012
Thursday, May 3, 2012
Through a Glass Darkly: Considerations behind the Christ Church Settlement
Earlier today, both the Anglican parish of Christ Church in Savannah and the Diocese of Georgia made separate (note: not joint) statements that they had reached a settlement of all their outstanding disputes. (See also the separate message from the Rev. Marc Robertson "to our allies" at this link.) This is good news for Christ Church, and for its stalwart and beleaguered rector and vestry, as I shall explain below. But it is also good news for Episcopalians everywhere, because another unseemly (and even spiteful) dispute among divided Christians has come to an end, so that each group can now pursue their separate ministries as each believes best.
Some concerns have been raised about the effect of the settlement on the other cases now pending before the U. S. Supreme Court. The settlement need not have any effect at all, and we probably won't know in any event whether the Court will accept either of the remaining two cases until next October 1. Let me explain my thinking.
The settlement between Christ Church Anglican and the Diocese of Georgia affects only one of the three petitions that are pending before the Supreme Court. The Diocese had been due to file a response to the petition by May 25; now it will not do so, and the justices will not read the briefs that have already been filed (Christ Church's brief, and two amicus briefs filed on its behalf). But there are similar briefs, and similar amicus briefs, on file and to be filed in the other two cases -- and the issues are virtually identical: can a national church bypass state-law trust requirements to impose a trust on all of its local parish properties? And if it can, is that not a violation of the First Amendment's prohibition against the "establishment" of a church (i.e., favoring it in the law)?
The parties to the Christ Church case each had strong motives to reach a settlement at this juncture, before the Supreme Court acted on the petition for review. For the Diocese of Georgia, a decision to grant review could have spelled big trouble for the Dennis Canon as an enforcement tool -- even before the Supreme Court heard arguments and published a decision, parishes might have been encouraged to try to leave while assuming that the special treatment the Canon had received in the courts would be brought to an end. Now, with the petition dismissed, if the Court disavows the Dennis Canon as a trust creation tool, it will happen in the context of another State's laws (Connecticut's). And that would leave some wiggle room to argue that Georgia law was somehow or uniquely "different" -- at least, until the Georgia Supreme Court took another Episcopal church case.
For Christ Church, its rector and vestry, the petition to the Supreme Court was a slender straw on which to lean -- most such petitions end up being denied without comment. And if the petition had been denied, then the Diocese's lawsuit against the rector and vestry personally would have proceeded in the Georgia courts. (Actually, it would have proceeded regardless of how the Court acted on the petition. It takes a vote of just four of the nine justices to accept a case for review, and the final position of the eventual majority of five or more justices would not be known for possibly a year or more, until the Court published its decision. Thus during that year, the Diocese would still have been free to try to reduce its lawsuit against the rector and vestry of Christ Church to a judgment.)
That separate lawsuit sought to establish personal liability on the part of the rector and vestry members for the $1 million-plus which the Diocese and ECUSA claimed they had spent of the Church's funds on defending the principal lawsuit. Under the Dennis Canon trust (which purports to apply to all personal, as well as to the real, property of a parish), the parish's money could be used on legal matters only as long as Christ Church Savannah remained in the Diocese of Georgia. Once it voted to leave, the claim was that it had to keep all pledge money and other donations accumulated up to that point in trust, for the Diocese, pending the outcome of the lawsuit. But since the rector and vestry had voted to use that money for legal defense, the Diocese wanted them personally to pay it all back.
So that was a huge burden lifted from their backs. And in order to induce them to settle before the Court could act on their petition, the Diocese and Bishop Benhase reduced their other demands, as well. They agreed that the parish could form a new corporation and call itself "Christ Church Anglican"; they agreed to assume a mortgage which Christ Church had placed on its property, and in exchange for surrendering the endowment funds (which could not be used for current expenses anyway), the Diocese asked only that they turn over $33,000 of the cash that was on hand when they voted to leave. (That amount is the same as the amount they would have had to use to pay off the mortgage, if the Diocese had not agreed to assume it.) Finally, the Anglican parish retained the rights to one of their major ministries -- an annual tour they organize and staff of historic homes of Savannah, which is an important source of donations.
Phil Ashey of the American Anglican Council, who knows the parish and its members well, summed up the result achieved in these words:
If past practice is any guide, neither the Timberridge briefs nor the Bishop Seabury briefs will be put out for distribution for the May 31 conference (even if the replies are on file by then), because of the backlog of earlier cases already scheduled for that conference. What will most likely happen, then, is that the briefs will be part of the justices' summer recess packages. They will then take up all the cases briefed in May through August at their first conference of the fall (not yet officially scheduled, but probably on September 27).
We will most likely not have any idea of whether or not four (or more) justices think the questions raised by the Timberridge and Bishop Seabury petitions are worthy of their attention until the first Monday in October, when the Court officially begins its 2012-2013 Term. And that is why the parties in Christ Church settled. Neither side could afford to wait that long to find out what the Court is going to do.
[UPDATE 05/04/2012: A reader writes to correct the foregoing -- it turns out that there are case conferences scheduled for June, even though they do not yet show up on the calendar at SCOTUSblog, which was my source for writing the above. The original Case Distribution Schedule fixed at the start of the term shows that cases whose briefing is completed by June 4 would expect to be considered at the Court's last conference of the term, shown as scheduled for June 21. (By Rule 15.5, the Clerk of the Court waits at least 10 days from the filing of the respondent's brief before distributing all the briefs to the justices -- thus the petitioners have ten days to get any reply brief on file, if they want the justices to see it.) With the Timberridge response due by May 9, the ten-day period will be up by May 19, and so the briefs in that case could be distributed as early as May 22 for the June 7 conference, or perhaps May 29 for the June 14 conference. The Bishop Seabury briefs could be sent out to the justices as early as May 29 as well, but perhaps might be held until June 5, for consideration at the June 21 conference.
There is no requirement that the cases be considered at the same conference, although any justice who is interested in them could request it. The Court also sometimes decides to hold over a case brought up at one conference to the next one, and it could do that in order to consider both cases at the conferences of either June 14 or June 21. The only way to know for sure will be to check the docket sheets for each case (linked above, in the discussion about brief due dates). Once the briefs have been distributed for a specific conference, that fact will be shown on the docket sheet for that case.
The results of the justices' deliberations in conference on Thursdays are typically announced by the clerk at 10:00 a.m. the following Monday. Thus we could know whether or not the Court is going to look favorably on these petitions as early as June 11, or if not, then by June 18 or 25.]
Some concerns have been raised about the effect of the settlement on the other cases now pending before the U. S. Supreme Court. The settlement need not have any effect at all, and we probably won't know in any event whether the Court will accept either of the remaining two cases until next October 1. Let me explain my thinking.
The settlement between Christ Church Anglican and the Diocese of Georgia affects only one of the three petitions that are pending before the Supreme Court. The Diocese had been due to file a response to the petition by May 25; now it will not do so, and the justices will not read the briefs that have already been filed (Christ Church's brief, and two amicus briefs filed on its behalf). But there are similar briefs, and similar amicus briefs, on file and to be filed in the other two cases -- and the issues are virtually identical: can a national church bypass state-law trust requirements to impose a trust on all of its local parish properties? And if it can, is that not a violation of the First Amendment's prohibition against the "establishment" of a church (i.e., favoring it in the law)?
The parties to the Christ Church case each had strong motives to reach a settlement at this juncture, before the Supreme Court acted on the petition for review. For the Diocese of Georgia, a decision to grant review could have spelled big trouble for the Dennis Canon as an enforcement tool -- even before the Supreme Court heard arguments and published a decision, parishes might have been encouraged to try to leave while assuming that the special treatment the Canon had received in the courts would be brought to an end. Now, with the petition dismissed, if the Court disavows the Dennis Canon as a trust creation tool, it will happen in the context of another State's laws (Connecticut's). And that would leave some wiggle room to argue that Georgia law was somehow or uniquely "different" -- at least, until the Georgia Supreme Court took another Episcopal church case.
For Christ Church, its rector and vestry, the petition to the Supreme Court was a slender straw on which to lean -- most such petitions end up being denied without comment. And if the petition had been denied, then the Diocese's lawsuit against the rector and vestry personally would have proceeded in the Georgia courts. (Actually, it would have proceeded regardless of how the Court acted on the petition. It takes a vote of just four of the nine justices to accept a case for review, and the final position of the eventual majority of five or more justices would not be known for possibly a year or more, until the Court published its decision. Thus during that year, the Diocese would still have been free to try to reduce its lawsuit against the rector and vestry of Christ Church to a judgment.)
That separate lawsuit sought to establish personal liability on the part of the rector and vestry members for the $1 million-plus which the Diocese and ECUSA claimed they had spent of the Church's funds on defending the principal lawsuit. Under the Dennis Canon trust (which purports to apply to all personal, as well as to the real, property of a parish), the parish's money could be used on legal matters only as long as Christ Church Savannah remained in the Diocese of Georgia. Once it voted to leave, the claim was that it had to keep all pledge money and other donations accumulated up to that point in trust, for the Diocese, pending the outcome of the lawsuit. But since the rector and vestry had voted to use that money for legal defense, the Diocese wanted them personally to pay it all back.
So that was a huge burden lifted from their backs. And in order to induce them to settle before the Court could act on their petition, the Diocese and Bishop Benhase reduced their other demands, as well. They agreed that the parish could form a new corporation and call itself "Christ Church Anglican"; they agreed to assume a mortgage which Christ Church had placed on its property, and in exchange for surrendering the endowment funds (which could not be used for current expenses anyway), the Diocese asked only that they turn over $33,000 of the cash that was on hand when they voted to leave. (That amount is the same as the amount they would have had to use to pay off the mortgage, if the Diocese had not agreed to assume it.) Finally, the Anglican parish retained the rights to one of their major ministries -- an annual tour they organize and staff of historic homes of Savannah, which is an important source of donations.
Phil Ashey of the American Anglican Council, who knows the parish and its members well, summed up the result achieved in these words:
This was a very difficult for Christ Church Savannah. We should note that after they filed their writ with the U.S. Supreme Court, the Episcopal Diocese of Georgia significantly lowered their demands in such a way that Christ Church Savannah now pays net zero to the diocese, walks away with the name "Christ Church Anglican," the right to cliam publically their lineage to the first Anglicans in Savannah, their tour of homes ministry in Savannah, and with no further claims on the church or any individual vestry members.I mentioned above that the Diocese of Georgia had sought and obtained an extension of time within which to file their response to Christ Church's petition. The parties to the other cases before the Supreme Court have also each sought extensions -- the response in the Timberridge case will not be filed until May 9, and the responsive brief in the Bishop Seabury case is not due until May 18. The petitioners then have the opportunity to file replies, after which all the briefs are circulated to the Justices for them to take up at one of their Thursday conferences. However, the last conference scheduled on the Court's calendar for this term is Thursday, May 31; no conferences are scheduled in June, which is the month the justices use to finish up opinions in all of the cases argued up to that point (not the least of which are the Obamacare appeals).
If past practice is any guide, neither the Timberridge briefs nor the Bishop Seabury briefs will be put out for distribution for the May 31 conference (even if the replies are on file by then), because of the backlog of earlier cases already scheduled for that conference. What will most likely happen, then, is that the briefs will be part of the justices' summer recess packages. They will then take up all the cases briefed in May through August at their first conference of the fall (not yet officially scheduled, but probably on September 27).
We will most likely not have any idea of whether or not four (or more) justices think the questions raised by the Timberridge and Bishop Seabury petitions are worthy of their attention until the first Monday in October, when the Court officially begins its 2012-2013 Term. And that is why the parties in Christ Church settled. Neither side could afford to wait that long to find out what the Court is going to do.
[UPDATE 05/04/2012: A reader writes to correct the foregoing -- it turns out that there are case conferences scheduled for June, even though they do not yet show up on the calendar at SCOTUSblog, which was my source for writing the above. The original Case Distribution Schedule fixed at the start of the term shows that cases whose briefing is completed by June 4 would expect to be considered at the Court's last conference of the term, shown as scheduled for June 21. (By Rule 15.5, the Clerk of the Court waits at least 10 days from the filing of the respondent's brief before distributing all the briefs to the justices -- thus the petitioners have ten days to get any reply brief on file, if they want the justices to see it.) With the Timberridge response due by May 9, the ten-day period will be up by May 19, and so the briefs in that case could be distributed as early as May 22 for the June 7 conference, or perhaps May 29 for the June 14 conference. The Bishop Seabury briefs could be sent out to the justices as early as May 29 as well, but perhaps might be held until June 5, for consideration at the June 21 conference.
There is no requirement that the cases be considered at the same conference, although any justice who is interested in them could request it. The Court also sometimes decides to hold over a case brought up at one conference to the next one, and it could do that in order to consider both cases at the conferences of either June 14 or June 21. The only way to know for sure will be to check the docket sheets for each case (linked above, in the discussion about brief due dates). Once the briefs have been distributed for a specific conference, that fact will be shown on the docket sheet for that case.
The results of the justices' deliberations in conference on Thursdays are typically announced by the clerk at 10:00 a.m. the following Monday. Thus we could know whether or not the Court is going to look favorably on these petitions as early as June 11, or if not, then by June 18 or 25.]
Saturday, April 28, 2012
ECUSA: Hollow Gains, Pointless Losses
The end of the week brought two three pieces of news on the Church litigation front. In the first, the trial judge in the litigation over the property of the Diocese of Quincy issued an order requiring the Episcopal Church (USA) immediately to pay $18,000 to the Anglican Diocese in sanctions for the needless costs caused by ECUSA's first filing, then later withdrawing and resubmitting, its papers for summary judgment -- a motion which eventually the court denied.
One can tell, from reading Judge Ortbal's order in the Quincy action, that he was seriously displeased with the conduct of ECUSA's counsel which led to the imposition of sanctions:
* * * * * *
In the second piece of news, a Tennessee appeals court justice, after working on it for more than a year, issued a long, rambling and ultimately meaningless opinion affirming the equally confused opinion of a Nashville trial court chancellor, which awarded all of the real and personal property of St. Andrew's Anglican Parish to the Diocese of Tennessee and its bishop, the Rt. Rev. John C. Bauerschmidt.
The victory in Nashville is another case of the Episcopal Church playing the role of the dog in the manger. There is no "remnant parish" waiting to fill the pews at St. Andrew's, once the Anglican congregation leaves; St. Andrew's had been an orthodox, Anglo-Catholic parish in the Diocese from its formation until it transferred to the Anglican Diocese of Quincy in 2006. Bishop Bauerschmidt and his Diocese must have brought their lawsuit because of the value of the parish's real estate, estimated at around $3 million in burgeoning Nashville. At the hearing held to establish the amount of the bond to be posted for the appeal, the bishop's attorneys had claimed that they could rent the property out for as much as $12,500 per month. Well, now they will have their chance.
The opinion by Presiding Justice Patricia Cottrell of the Court of Appeals rambles on for twenty pages before finally adopting the rationale of the recent decision by the Connecticut Supreme Court in the appeal of the Bishop Seabury parish: the Dennis Canon trumps state trust law, and because the Episcopal Church is "hierarchical", it can create trusts by fiat whenever it wants to. Along the way, Justice Cottrell sweeps under the rug the fact that St. Andrew's parish had changed its corporate articles in 1978 to remove its accession to the constitutions and canons of ECUSA and the Diocese. That was a year before General Convention appears to have enacted the Dennis Canon (there is no way of conclusively proving that it did so).
The fact that the parish had withdrawn its consent to be governed by Episcopal canons a year before the Church tried to impose a trust on all parish properties everywhere made no difference to the Court of Appeal. Just the very fact of continuing to stay in the Diocese of Tennessee was enough to override the parish's attempt to keep its land free of any trust, although the opinion does not even acknowledge that attempt:
Or do the constitution and canons of the church "speak for themselves" -- even though, as pointed out in the ACI's Fort Worth brief,
But at the same time, if you have concluded that the Church's governing documents "speak for themselves" and say that the Church is "hierarchical," because that is how they have been interpreted by "the highest church authority on questions of church governance", then of what "highest authority" are you speaking, Justice Cottrell? And how can you determine just what the "highest authority" in ECUSA actually is without first examining its structure to see whether it really is hierarchical?
Perhaps the reason it took so long for Justice Cottrell to write her opinion is that she was so confused by the issues she tries to address. If that is the case, however, it is manifest that she remains as confused as ever -- and her two silent partners on the bench have done nothing to help her. All they did was join their names to her successful essay at self-refutation.
* * * * *
Finally, the third piece of Episcopal litigation news is that late Friday evening, Judge Bellows signed an order denying the motion for a stay from his earlier judgment requested by The Falls Church, to take effect pending its appeal of that decision.Had it been granted, the stay would have prevented TFC from having to turn over to the Episcopal Diocese of Virginia all of its property by next Tuesday, and to vacate its premises completely by May 15. Apparently Judge Bellows stayed at the courthouse late while the two sides tried to negotiate an arrangement which would have allowed TFC Anglican congregation to remain on the property pending the appeal. (In an earlier ruling, Judge Bellows had signaled that he lacked the power to force any such arrangement on the parties; they would have to reach one voluntarily, if at all.)
This development will entail a massive disruption in the operations of TFC Anglican. It is not known what back-up plans they have in readiness; they could perhaps ask the Virginia Supreme Court for an emergency stay. If they do move out next week, it is equally unclear how the Diocese of Virginia plans to use the extensive facilities. The Episcopal congregation which is waiting to occupy the property is a fraction of the size of the Anglican congregation, and will most likely require a sizeable subsidy from the Diocese to be able to pay for its upkeep in addition to their own expenses.
Thus, whether or not another chapter of "The Dog in the Manger" is about to play itself out will shortly be seen. This development will put the credibility of Bishop Johnston and his Diocese on the line. He has made several public statements to the effect that his Diocese is prepared to take charge of all of the former parishes' properties -- and now it will be assuming responsibility for the last and largest of them. If the properties end up being sold to strangers, whether in other denominations or in different lines of business entirely, then all of the talk about "keeping the property for future Episcopalians" will ring as hollow as the dog's barking in the manger.
One can tell, from reading Judge Ortbal's order in the Quincy action, that he was seriously displeased with the conduct of ECUSA's counsel which led to the imposition of sanctions:
5. In setting the scheduling and deadlines for the Motion for Summary Judgment Plaintiffs advised that they intended to file motions to strike directed to the affidavits filed in support ofTEC's Motion for Summary Judgment.
6. Plaintiffs requested that their response to the Summary Judgment Motion be deferred until any hearing and ruling on their proposed motions to strike was concluded, given the number, length and volume ofTEC's supporting affidavits and based upon their intention to have their retained expert respond specifically to each statement, claim and opinion of TEC' s opinion witness affidavits.
7. TEC objected to deferring the deadline for the Plaintiffs' response to their Summary Judgment Motion...
8. Over the objections of Plaintiffs, the court accepted the proposed deadline of TEC and Plaintiffs were ordered to file their response to the TEC's Motion for Summary Judgment on the same date as TEC's deadline for responding to any motions to strike affidavits, that being on or before June 6, 2011.
9. On June 1, 2011, TEC, without leave of court, sent correspondence to the court and counsel advising they were "withdrawing" certain affidavits filed in support of their Motion for Summary Judgment, a copy of which correspondence is attached to this Order as Exhibit A.
So ECUSA's (TEC's) attorneys "withdrew" their voluminous affidavits rather than respond to plaintiffs' motion to strike them -- but they had previously insisted that Quincy's attorneys had to respond to their entire motion -- including Quincy's affidavits prepared to counter the ones ECUSA had submitted. Then, having seen Quincy's affidavits in response, the ECUSA attorneys filed new affidavits (not including, this time, any affidavit by their retained expert Prof. Mullin), which required Quincy to throw out everything they had rushed to get ready, and to start over. The judge quite properly has now ordered ECUSA to reimburse Quincy for the expert fees and attorneys' fees it incurred in responding to the motion they unilaterally withdrew at the last minute.
* * * * * *
In the second piece of news, a Tennessee appeals court justice, after working on it for more than a year, issued a long, rambling and ultimately meaningless opinion affirming the equally confused opinion of a Nashville trial court chancellor, which awarded all of the real and personal property of St. Andrew's Anglican Parish to the Diocese of Tennessee and its bishop, the Rt. Rev. John C. Bauerschmidt.
The victory in Nashville is another case of the Episcopal Church playing the role of the dog in the manger. There is no "remnant parish" waiting to fill the pews at St. Andrew's, once the Anglican congregation leaves; St. Andrew's had been an orthodox, Anglo-Catholic parish in the Diocese from its formation until it transferred to the Anglican Diocese of Quincy in 2006. Bishop Bauerschmidt and his Diocese must have brought their lawsuit because of the value of the parish's real estate, estimated at around $3 million in burgeoning Nashville. At the hearing held to establish the amount of the bond to be posted for the appeal, the bishop's attorneys had claimed that they could rent the property out for as much as $12,500 per month. Well, now they will have their chance.
The opinion by Presiding Justice Patricia Cottrell of the Court of Appeals rambles on for twenty pages before finally adopting the rationale of the recent decision by the Connecticut Supreme Court in the appeal of the Bishop Seabury parish: the Dennis Canon trumps state trust law, and because the Episcopal Church is "hierarchical", it can create trusts by fiat whenever it wants to. Along the way, Justice Cottrell sweeps under the rug the fact that St. Andrew's parish had changed its corporate articles in 1978 to remove its accession to the constitutions and canons of ECUSA and the Diocese. That was a year before General Convention appears to have enacted the Dennis Canon (there is no way of conclusively proving that it did so).
The fact that the parish had withdrawn its consent to be governed by Episcopal canons a year before the Church tried to impose a trust on all parish properties everywhere made no difference to the Court of Appeal. Just the very fact of continuing to stay in the Diocese of Tennessee was enough to override the parish's attempt to keep its land free of any trust, although the opinion does not even acknowledge that attempt:
While the Trust Canon, or Dennis Canon, was adopted after the Property was transferred to St. Andrew’s, when the congregation decided to associate with The Episcopal Church and the Diocese in 1960, and when St. Andrew’s filed their Articles of Incorporation in 1966, the parish agreed to be bound by the constitution and canons of The Episcopal Church and the Diocese. St. Andrew’s remained a parish within The Episcopal Church and the Diocese long after the Dennis Cannon was adopted by the Church’s governing body. [Op. at 18.]This is just one blatant example of how Justice Cottrell simply ignores inconvenient facts, and proceeds as if they were not there. (She notes the fact of the amendment at page 7 of her opinion, but does not discuss its significance after that.) She also brushes off the contrary views of St. Andrew's experts who testified that the Episcopal Church does not have a hierarchical structure:
St. Andrew’s contends that it created a genuine issue of material fact concerning whether The Episcopal Church is hierarchical for temporal matters, including property disputes. St. Andrew’s submitted an affidavit by a former bishop of a diocese in Illinois, an affidavit by a board member of a diocese in Florida, and a document entitled Bishops’ Statement on the Polity of The Episcopal Church (the “Bishops’ Statement”). The former bishop stated that The Episcopal Church is not hierarchical for any purpose. The board member opined that The Episcopal Church is not hierarchical for “the issues in this dispute.” The Bishops’ Statement is dated April 18, 2009, and appears to be authored by fifteen or so bishops and former bishops, but does not appear to be sanctioned by The Episcopal Church or the General Convention. The Bishops’ Statement suggests, inter alia, that The Episcopal Church is a voluntary association of equal dioceses.
The affidavits St. Andrew’s offered do not create a disputed issue of material fact because the affiants were simply offering their opinions and interpretations of the constitutions and canons, not facts....Ultimately, her opinion is so self-contradictory as to render it meaningless for anyone to use as a precedent. Justice Cottrell spends half of her opinion explaining the precedents which hold that while civil courts may not decide religious questions, they may decide religious property disputes if they can do so without making an extensive inquiry into religious doctrine or polity. (The same point was made at some length at pp. 3-14 in the amicus brief filed last week in the Fort Worth case by the Communion Partner bishops and the Anglican Communion Institute.) But then, having established that point with page after page of citation to precedent, look at how she flatly contradicts herself on the question of ECUSA's hierarchical structure:
The constitutions and canons, as well as St. Andrew’s filings and Articles of Association, speak for themselves and are determinative of the issue. As discussed earlier in this opinion, when resolving disputes involving hierarchical churches, the courts will defer to the highest church authority on questions of church governance. In such situations, the courts “are bound to look at the fact that the local congregation is itself but a member of a much larger and more important religious organization, and is under its government and control, and is bound by its orders and judgments.” Watson v. Jones, 80 U.S. at 726-27. We think that includes interpretation of church governing documents and interpretation of the basic organization of the church. Consequently, we cannot conclude that there is a factual question regarding the organization and governance of The Episcopal Church and will not inquire into it.Well, which is it, Justice Cottrell? Are you precluded from making a factual inquiry into the hierarchical nature of ECUSA because to do so would involve you to an impermissible degree with the "interpretation of church governing documents and interpretation of the basic organization of the church"?
Or do the constitution and canons of the church "speak for themselves" -- even though, as pointed out in the ACI's Fort Worth brief,
. . . there is no explicit language in The Episcopal Church’s governing constitution identifying in express legal terms of hierarchy or supremacy any central body or office allegedly superior to the diocesan bishop [footnote omitted]. Indeed, none of the following terms routinely used in legal documents to indicate hierarchical priority is found at all in The Episcopal Church constitution: “supreme”; “supremacy”; “highest”; “hierarchical”; “subordinate”; “sole”; “preempt”; and “final.”If you are ruling out all factual inquiry into the structure of the Episcopal Church (USA), Justice Cottrell, then you are saying that the First Amendment prohibits your court from doing what ECUSA itself has asked the Texas Supreme Court to do, by submitting "a 70-page affidavit by an expert witness on TEC history accompanied by an affidavit from a church archivist sponsoring 700 pages of historical documents spanning over 200 years."
But at the same time, if you have concluded that the Church's governing documents "speak for themselves" and say that the Church is "hierarchical," because that is how they have been interpreted by "the highest church authority on questions of church governance", then of what "highest authority" are you speaking, Justice Cottrell? And how can you determine just what the "highest authority" in ECUSA actually is without first examining its structure to see whether it really is hierarchical?
Perhaps the reason it took so long for Justice Cottrell to write her opinion is that she was so confused by the issues she tries to address. If that is the case, however, it is manifest that she remains as confused as ever -- and her two silent partners on the bench have done nothing to help her. All they did was join their names to her successful essay at self-refutation.
* * * * *
Finally, the third piece of Episcopal litigation news is that late Friday evening, Judge Bellows signed an order denying the motion for a stay from his earlier judgment requested by The Falls Church, to take effect pending its appeal of that decision.Had it been granted, the stay would have prevented TFC from having to turn over to the Episcopal Diocese of Virginia all of its property by next Tuesday, and to vacate its premises completely by May 15. Apparently Judge Bellows stayed at the courthouse late while the two sides tried to negotiate an arrangement which would have allowed TFC Anglican congregation to remain on the property pending the appeal. (In an earlier ruling, Judge Bellows had signaled that he lacked the power to force any such arrangement on the parties; they would have to reach one voluntarily, if at all.)
This development will entail a massive disruption in the operations of TFC Anglican. It is not known what back-up plans they have in readiness; they could perhaps ask the Virginia Supreme Court for an emergency stay. If they do move out next week, it is equally unclear how the Diocese of Virginia plans to use the extensive facilities. The Episcopal congregation which is waiting to occupy the property is a fraction of the size of the Anglican congregation, and will most likely require a sizeable subsidy from the Diocese to be able to pay for its upkeep in addition to their own expenses.
Thus, whether or not another chapter of "The Dog in the Manger" is about to play itself out will shortly be seen. This development will put the credibility of Bishop Johnston and his Diocese on the line. He has made several public statements to the effect that his Diocese is prepared to take charge of all of the former parishes' properties -- and now it will be assuming responsibility for the last and largest of them. If the properties end up being sold to strangers, whether in other denominations or in different lines of business entirely, then all of the talk about "keeping the property for future Episcopalians" will ring as hollow as the dog's barking in the manger.
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