What Will the Supreme Court Do with The Falls Church Petition?

The docket sheet in the United States Supreme Court tells the tale. After receiving an extension of time, The Falls Church filed on October 9 in the Supreme Court its petition for writ of certiorari (or review) of the decision rendered by the Virginia Supreme Court last April 18 (and its denial of a rehearing on June 14).

The ever-cocky Episcopal Church (USA) and the Episcopal Diocese of Virginia, following its lead, declined to file responses to the petition.  Four amici curiae ("friends of the court", being organizations interested in the case) filed briefs in support of The Falls Church: ACNA, the Presbyterian Lay Committee, St. James Anglican Church in Newport Beach, CA, and the Becket Fund for Religious Liberty.  The case went to conference last December just on those briefs. And -- lo and behold! -- the Court ordered ECUSA and its Diocese to file a response before it ruled on the petition.

Such a request is noteworthy, because the Court's Rules explain that the Court ordinarily does not grant a pending petition without first calling for a response to it.  Had the Court taken no interest in the petition, on the other hand, it could have denied the petition outright at its December 6 conference.

On December 30, Goodwin Procter for ECUSA and local Virginia counsel for the Diocese filed their joint response to the petition. And just over one week later, The Falls Church filed its reply. That same day, the Clerk distributed the briefs to the Justices for their case conference on January 24.

Monday, January 27, came and went with no word of the Supreme Court's decision. Docket watchers next noted that the briefs were distributed again for the Court's conference of February 21. This can happen if some of the Justices want more time to study the petitions, or if they are writing any opinions to be published along with the grant or denial of certiorari.

The Supreme Court came out with a long list of orders in pending cases yesterday. But Case No. 13-449 was not on it -- although it disposed of numerous cases with a later filing number. And now we find that the briefs have been carried over to a third (actually, the fourth) case conference this next Friday.

What to make of this? It would appear that there is strong interest in the case at least among one or more of the Justices. For example, last Term the Hollingsworth case (the federal injunction against California's Prop. 8) was carried over for four conferences before the Court granted review. And the Windsor case involving the Defense of Marriage Act went through three conferences before being granted, as well.

There are certainly grounds for the Supreme Court to grant review in the Virginia case. The recent reply brief sums it up well:

Respondents do not dispute that the lower courts are deeply divided over the constitutional significance of denominational “trust” rules. Nor do they deny the importance of the questions presented to millions of Americans—a point confirmed by the amicus briefs and 30 States’ use of “neutral principles” doctrine to decide church property disputes. Respondents do not even try to rebut our showing that free exercise and establishment principles preclude enforcing denominational “trusts” not embodied in ordinary instruments of ownership reflecting all parties’ intent. Accord Becket Fund Br. 7-23. And they do not contest that, if the court below applied state law retroactively, its ruling was unconstitutional.

Instead, respondents say the decision below “does not implicate” the lower-court “conflict” because the decision is “factbound” and “turns entirely” on “state law.” Opp. 10. But that position is untenable. It evades not only the decision’s free exercise and establishment implications, but also (1) the court’s reliance on Jones’ “recognition” (in dictum) “that ‘the constitution of the general church can be made to recite an express trust in favor of the denomination[]’”; (2) its holding that it “need look no further than the Dennis Canon” (which was void [in Virginia] when enacted) to rule for the denomination; and (3) its conclusion that to “address any issues of inequity wrought [by the Dennis Canon]” would “clearly violate the First Amendment.” Pet. 15a, 18a, 21a (quoting Jones). Respondents insist that the ruling below involves no “retroactive application of a newly created rule,” and that the Dennis Canon only made “explicit” what had been “implicit” in the parties’ relationship. Opp. 10, 5. But they cannot explain how petitioner—or its grantors—could “agree” to place property in trust for respondents when “Virginia law prohibited denominational trusts.” Opp. 7.

Hoping to avoid the appearance of retroactivity, respondents say the court did not find “a trust at all,” but rather fashioned a “remedy”—forfeiture—for breach of some free-floating “fiduciary duty.” Opp. 14. But as the court explained, a “constructive trust” is “a form[] of implied trust.” Pet. 16a. And if respondents were correct, the court would not have needed to hold that §57-7.1 changed the law—the centerpiece of its decision. Pet. 14a.

Virginia Code §57-7.1 was the statute that the Virginia Supreme Court read to allow (after 1993) the creation of trusts in favor of religious denominations in Virginia.  Prior to that time -- and going all the way back to the State's founding -- its courts had refused to recognize such trusts, or to give them any legal effect. Thus the question became: if denominational trusts became legal in Virginia after 1993, how did the Dennis Canon, a "trust" enacted in 1979, come to apply to the property of The Falls Church?  The reply brief concludes:

Like the court below, respondents cite no evidence that petitioner consented to a trust after §57-7.1 was enacted. Not surprisingly, ruling for respondents required concocting a trust “‘independently of the intention of the parties’” (Pet. 16a)—a grave constitutional violation. Jones, 443 U.S. at 606 (courts must “give effect to the result indicated by the parties”).

In sum, respondents do not contend that the Court should not resolve the lower-court split—just that it cannot do so here. But respondents’ state-law premise is incorrect. And even if the court below had relied solely on state law, the free exercise implications of its decision and its retroactive nature would independently enable the Court to resolve the conflict. The only conceivable basis for imposing a retroactive trust on church property over its owner’s objection is that the First Amendment requires that result regardless of state law—the precise question that splits thirteen state high courts. However that question is resolved, guidance is needed, and this case presents an excellent opportunity for the Court to answer it.

Indeed. Watch for the Court's release of its "Order List" next Monday -- and pray in the meantime that the Court be guided to grant review at its conference this Friday.

The Church of Identity Is No Church at All

Consider the following Canon of the Episcopal Church (USA), Canon I.17.5:

No one shall be denied rights, status or access to an equal place in the life, worship, and governance of this Church because of race, color, ethnic origin, national origin, marital status, sex, sexual orientation, gender identity and expression, disabilities or age, except as otherwise specified by Canons.

(There is a similar Canon applying to the discernment process for would-be clergy.) The words "sexual orientation" and "gender identity and expression" are the most recent additions to the list of grounds upon which Episcopalians are called not to discriminate. As this Canon's predecessor stood from its adoption in 1964 (at the height of the civil rights movement) until 1982, it read:

Every communicant or baptized member of this Church shall be entitled to equal rights and status in any Parish or Mission thereof. He shall not be excluded from the worship or Sacraments of the Church, nor from parochial membership, because of race, color, or ethnic origin.

With only slight rewording in 1982, the threefold grounds of "race, color, or ethnic origin" remained untouched until General Convention 1994, when the categories were expanded by one Resolution (1994-C020) to include "national origin, marital status, sex, sexual orientation, disabilities or age." Most recently Resolution 2012-D002 added the categories "gender identity and expression."

What we see here is a progression from characteristics which define every human being, to characteristics that define only broad segments ("national origin, marital status, ... disabilities or age"), to ones that are much narrower ("sexual orientation" -- meaning, of course, "other than heterosexual"), and concluding with a category that characterizes a tiny minority indeed ("gender identity and expression").

Paradoxically, however, there appears to be an inverse relationship between the number of persons who could be placed within a given category and the sub-categories within that category.  Thus "marital status" breaks down into categories of single, married, divorced or widowed. Likewise, "race" and "ethnic origin", while capable of many gradations, are still defined by less than a dozen boxes on the census forms. But as Facebook (the largest social media site on earth) now is recognizing, there are no less than 58 sub-categories of "gender identity and expression."

Episcopalians point to this progression of smaller and smaller categories as one of increasing inclusivity. "There will be no outcasts in this Church," said Presiding Bishop Browning in 1986.

At the same time, the Episcopal Church has, since around 2000, been alienating hundreds of thousands of churchgoers, and deposing nearly a thousand of its clergy. What single characteristic do you think best identifies with those who have left or have been forced to leave?

If you responded "orthodoxy in tradition and belief," you would be correct.

And that fact speaks volumes about the Church's "inclusivity."

When the disenfranchised minorities pressed over the last ten years for their listing in the anti-discrimination Canons, where were the voices speaking up for the orthodox? It's a good question.

One could certainly put forth a modest proposal to rectify this increasing discrimination against the orthodox by those in ECUSA. It would propose to amend Canon I.17.5 (and its clergy counterpart) to read as follows:

No one shall be denied rights, status or access to an equal place in the life, worship, and governance of this Church because of race, color, ethnic origin, national origin, orthodoxy of belief or practice, marital status, sex, sexual orientation, gender identity and expression, disabilities or age, except as otherwise specified by Canons.

I can see people at once objecting: "How do we define 'orthodoxy of belief' or 'orthodoxy of practice'?" To which the obvious answer is: "Difficulty of definition was not an objection to adding the words 'gender identity and expression' in 2012, so why should we get hung up on definitions? Judging from the number of clergy being deposed, the Church leadership has no difficulty whatsoever in discerning just who is 'orthodox'."

Consider: we already have attacks on bishops and other clergy who do not march with the LGBTs, or who do not speak out enough against anti-gay laws, or who will not back same-sex marriages and blessings. (Does the word "homophobe" sound familiar?)

The addition of these words to the Canon would at least furnish a basis for trying to limit or end such attacks. They would also create a "safe harbor" for those who read their Scripture as it had been read for at least two thousand years before General Convention 2003.

And do you know what? That is exactly why such an amendment would never be adopted at General Convention.

For those now in charge of the Church want to keep up the pressure on the orthodox to go elsewhere. They are all for inclusion, but not of the traditional or orthodox. Those who once held power must apparently pay for the years of oppression they (albeit unintentionally) inflicted on minorities -- simply by being who they are, and upholding their traditional understandings of Holy Scripture.

It is Father Neuhaus' Law in spades: "Where orthodoxy is optional, orthodoxy will sooner or later be proscribed." The tendency to limit orthodoxy by making it optional, and then to proscribe it altogether, cannot be stopped so long as the new liberalism of self-identity holds sway.

And why is that? In the essay just linked, Fr. Neuhaus gives a very perceptive explanation:

Orthodoxy, no matter how politely expressed, suggests that there is a right and a wrong, a true and a false, about things. When orthodoxy is optional, it is admitted under a rule of liberal tolerance that cannot help but be intolerant of talk about right and wrong, true and false. It is therefore a conditional admission, depending upon orthodoxy’s good behavior. The orthodox may be permitted to believe this or that and to do this or that as a matter of sufferance, allowing them to indulge their inclination, preference, or personal taste. But it is an intolerable violation of the etiquette by which one is tolerated if one has the effrontery to propose that this or that is normative for others.

I think Fr. Neuhaus has it exactly right. To adhere to tradition is to adhere to standards of right and wrong. People could disagree over particulars, and it was possible to have debates about the finer points. But no longer:

With the older orthodoxy it is possible to disagree, as in having an argument. Evidence, reason, and logic count, in principle at least. Not so with the new orthodoxy. Here disagreement is an intolerable personal affront. It is construed as a denial of others, of their experience of who they are. It is a blasphemous assault on that most high god, “My Identity.” Truth-as-identity is not appealable beyond the assertion of identity. In this game, identity is trumps. An appeal to what St. Paul or Aquinas or Catherine of Sienna or a church council said cannot withstand the undeniable retort, “Yes, but they are not me!” People pack their truths into what Peter Berger has called group identity kits. The chief item in the kit, of course, is the claim to being oppressed.

Oppression means that there are victims and oppressors, and the latter must pay for their sins against the victims. But first, they must forced to acknowledge the error of their orthodox ways. Are they against "being inclusive" or "being accepting"? Who would dare so be? So hit them with guilt -- after all, they are rich, white Episcopalians:

The proponents of truth-as-identity catch the dissidents coming and going. They say their demand is only for “acceptance,” leaving no doubt that acceptance means assent to what they know (as nobody else can know!), [and] is essential to being true to their authentic selves. Not to assent is not to disagree; it is to deny their humanity, which, especially in churches credally committed to being nice, is not a nice thing to do.

The culture of identity, however, is one of increasing fragmentation. For very few others can have shared all the experiences you have gone through to make you what you are -- i.e., there is no longer any common ground of experience. And the lack of common ground is the ultimate barrier to consensus and agreement on going forward. Appeals to past tradition and Scripture fall on deaf ears:

This helps explain why questions such as quota-ized representation, women’s ordination, and homosexuality are so intractable. There is no common ground outside the experiential circles of identity by which truth is circularly defined. Conservatives huff and puff about the authority of Scripture and tradition, while moderates appeal to the way differences used to be accommodated in the early church (before ca. 1968), but all to no avail. Whatever the issue, the new orthodoxy will not give an inch, demanding acceptance and inclusiveness, which means rejection and exclusion of whatever or whomever questions their identity, meaning their right to believe, speak, and act as they will, for what they will do is what they must do if they are to be who they most truly are. “So you want me to agree with you in denying who I am?” By such reasoning, so to speak, the spineless are easily intimidated.

Those who are not intimidated simply grow weary of the endless attacks on their orthodoxy, and the  stridency of those behind the attacks. But both kinds end up leaving -- not just in the hope of finding peace and quiet, but also because being constantly on the defensive is both spiritually debilitating and physically stressful. Religion is not supposed to consist of confrontation, of having continually to justify your faith while being called a "bigot", a "homophobe", and worse.

For traditional conservatives, religion used to be a communal affair. You were baptized in the church, married in the church, and given a funeral in the church -- in the midst of your community. (Indeed, that is the only reason, for example, we know when William Shakespeare was born, when he married, and when he died: the dates are all due to carefully preserved parish records.) The church was, for better or worse, the thread that linked all of your significant life events.

But the point was not that you made the church; instead, you came to the church in all humility, as an infant, and the church thereafter sheltered and supported you as you passed and marked each of life's milestones. It had its own authority, derived from the community that comprised it and the God they  worshipped, while you derived from it the nourishment that came from being part of that community which worshipped God. Nevertheless, it is due to man's fallen nature,which makes him think that he does not need God to help him, that man eternally tries to remake the church in his own image.

There is much more to commend in Fr. Neuhaus' essay of six years ago. Not least is his longer view, in which he contrasts the forces behind today's identity-liberalism with the forces that gave rise to the Anglo-Catholic movement in the 19th century. Both took on their respective cultures. While the latter was transformed in the process, we are unfortunately not yet able to see just what kind of transformation the current ideology will undergo.

Nevertheless, the two movements differ greatly in their essential goals. Anglo-Catholics sought to travel the via media of Anglicanism on a path toward the ultimate reconciliation of Orthodoxy and Catholicism. The modern crop of identity-liberals have no common goal other than to celebrate their own individuality, and to make others respect (and even honor) it. It is difficult to see, at this juncture, just how a church can stay together when the center no longer holds.

How Much Has ECUSA Spent on Lawsuits? (Updated Jan. 2014)

In September 2010, I put up an analysis, based on ECUSA's monthly statements and their annual audited statements through 2009, of how much ECUSA and its major dioceses had spent on attorneys' fees and other costs associated with the (then) 60+ lawsuits as catalogued here (see pgs. 23-26). In order to give as complete a picture as possible, I also included the latest ECUSA budget projection of legal expenses through the triennium 2010-2012.

One has to realize that ECUSA does not make it easy to discover the amounts it spends on litigation -- the leadership at 815 Second Avenue would obviously prefer that those who sit in the pews every Sunday and contribute their pledges not be aware of just how many millions have been squandered on ECUSA's scorched-earth litigation policy.

I am fully aware that those are fighting words to all those who support the current administration at 815 Second Avenue: "Prove it!" they say. Well, in the course of this post, I intend to do just that. So please suspend your judgment until you have digested the entire piece, and checked out all the links to my sources -- which are uniformly from ECUSA's own published financial statements and official minutes. I am a lifelong Episcopalian myself, and I am utterly ashamed and outraged by what the Presiding Bishop and her cohorts are doing in our Church's name.

In September 2010, I concluded that ECUSA and its Dioceses of Virginia, Los Angeles and San Diego had committed a combined total of Twenty-one Million Six Hundred and Fifty Thousand Dollars ($21,650,000.00) on litigation since the year 2000. This number I broke down as follows:

Amounts spent 2001-2006 (mostly during the term of Presiding Bishop Frank Griswold; amounts before 2005 estimated, as no longer available online):

$1,344,000 

Amounts spent 2007-2009 (the first triennium of Presiding Bishop Jefferts Schori -- including deposition costs under Title IV):

$10,525,584

This amazing total -- nearly eight times (in just three years!) what the former Presiding Bishop had spent in six years) -- was fully documented from ECUSA's audited financial statements and monthly statements of account from January 2006 through the end of calendar 2009.

To that total I added the $3 million budgeted for legal expenses in the triennium 2010-2012; the $1,003,000 budgeted (incredibly precise!) for depositions and other Title IV proceedings in that same period; and the $1,775,000 in grants extended to rump dioceses to assist them in prosecuting lawsuits through just September 2010 -- bringing the total to $16,303,584.

Thus the administration of the Most Rev. Katharine Jefferts Schori alone was responsible for the commitment of more than Sixteen Million Dollars of ECUSA's resources to suing her fellow Christians during just her first three years in office.  What an unenviable -- and completely unChristian -- accomplishment!

But we still could not yet say we had taken everything into account. For the Diocese of Virginia had taken out a $2 million line of credit to cover the litigation against eleven CANA parishes which the Presiding Bishop insisted, as "the new sheriff in town", that the Rt. Rev. Peter Lee undertake on ECUSA's behalf. Out in Los Angeles and San Diego, where Bishops Bruno and Mathes had relentlessly pursued six departing congregations for nearly six years, I estimated that they, too, had spent approximately as much. And those amounts, plus the amounts then budgeted for future "legal assistance to dioceses", brought the grand total to $21,650,000.00.

Well, that was then, and this is now -- some three years and five months later. The figures budgeted in 2010-2012 have become actual figures expended, and we have a new budget for the triennium 2013-2015 (plus actual figures through November 2013). Moreover, the number of lawsuits has increased by 50%, as catalogued in this recent post. Accordingly, I have taken this occasion to go back through all my earlier figures and check them against the available sources: in some cases (even with the supposedly audited financials!) they have changed. Thus it is high time to do a new tally, from scratch.

The amounts the Church spends due to its litigation policies come in a number of different categories. Not all the categories are shown in the same financial documents. For instance:

The yearly audited financial statements, which are the most accurate source, do not break out "litigation expenses" as a separate category, but instead lump them in with all the other general operating costs of the organization. But what they do disclose are (a) the amount of moneys loaned (not granted outright) to rump dioceses; and (b) the amount of legal out-of-pocket expenses contributed to ECUSA by the Presiding Bishop's Chancellor's law firm, Goodwin Procter.

(Note: While the IRS does not allow lawyers to deduct the value of their services rendered pro bono, it does allow them to deduct out-of-pocket expenses incurred in performing the services -- travel, hotel and meals; telephone, freight, postage and similar amounts. In order to keep track of ECUSA's full legal expenses, these contributed costs must be added back into the totals, or else those totals would appear artificially low in comparison to other corporations incurring similar legal services and related expenses. Moreover, ECUSA includes their amount in its income -- see the auditors' note -- so they have to be part of its expenses, as well.)

The monthly statements of operations, though not audited, are the best source of information for (c) the cost of Title IV proceedings -- at least until recently -- and (d) the amounts paid to Goodwin and Procter over and above their donated services, as well as to local law firms retained in various states by ECUSA.

The minutes of the Executive Council are the best source for (e) the amounts of grants and credit lines extended to the rump dioceses. (The audited financials show only the amounts actually borrowed against credit lines as of the year end; they do not disclose the total amount of credit lines extended.)

The budgets adopted by General Convention and the Executive Council are the best detailed source for actual moneys spent in the past on particular line items, and they are the only source for (f) the  future anticipated legal expenses of the Church.  These are most often wildly understated, and Executive Council is constantly having to revise them upwards.

Using those official ECUSA sources, therefore, I reckon that the accumulated total of moneys expended and committed to litigation and related events over the years 2000 through the end of calendar 2015 break out as follows.

For the Griswold years (2000-2006), the total is somewhat higher than estimated previously, because I found an entry for "Legal Support to Dioceses" paid in calendar 2006 in the amount of $443,519.  The new total is:

TOTAL 2000-2006: $ 1,777,180.00

For the first triennium under Presiding Bishop Jefferts Schori (2007-2009):

Title IV Expenses:  $ 1,702,222 -- i.e., almost as much as PB Griswold spent on everything legal!

Litigation Expenses (including contributed expenses): $ 8,392,584

Grants to Sustain Rump Dioceses: $1,200,000

TOTAL 2007-2009: $ 11,294,806.00

For the second Jefferts Schori triennium (2010-2012):

Title IV Expenses: $ 992,921

Litigation Expenses (including contributed expenses): $ 4,933,807

Grants to Sustain Rump Dioceses: $ 575,000

Loans to Rump Dioceses:  $ 2,285,000

TOTAL 2010-2012: $ 8,786,728.00



Jefferts Schori Actual Total, 2007-2012: $ 20,081,534

Plus: Griswold Total, 2000-2006:  $ 1,777,180 

GRAND TOTAL, 2000-2012: $ 21,858,714

(Compare that with the estimated total for the same period of $21,650,000 in my September 2010 post -- which included estimated amounts spent by individual dioceses.)

We do not know yet the final, year-end figures for 2013 (the monthly statements have been posted thus far only through November). However, 2013 legal expenses alone (not including contributed expenses) total nearly $1.7 million for the first eleven months of 2013 -- almost $800,000 over budget. (This item includes in-house legal staff support, such as the salary of the Presiding Bishop's Special Assistant for Litigation, Mary Kostel.) Add in estimated contributed expenses of $500,000 and the total thus for 2013, exclusive of grants, loans, and Title IV expenses (which the Treasurer no longer itemizes), and the total spent for all of 2013 will easily come to $ 2.4 million. Now include the $735,000 authorized in grants and loans to just the South Carolina rump diocese in 2013 (after a further $300,000 increase authorized in June), the $785,000 authorized for San Joaquin, plus amounts to other dioceses, and the $270,000 spent on Title IV (per the 2014 budget, line 277), and you easily reach $4.2 million for all of calendar 2013.

There is little reason to expect the 2014 totals to be any less. The Executive Council just authorized another $500,000 to the rump dioceses for this year, and spending on litigation will continue in South Carolina, San Joaquin, Quincy and Fort Worth.

If that level of spending continues through 2015, the total for the triennium will be on the order of $12.6 million. Thus, total ECUSA legal expenses from 2000 to 2015 will amount to (roughly):

GRAND TOTAL, 2000-2015: $ 34,500,000

Just to put that number into perspective, take a look at line 362 in the latest (2014) budget. It is the same amount as ECUSA expects to spend for ALL of its operations in calendar 2013! And we are not done yet.

Now add in the amounts spent by individual dioceses (Los Angeles, San Diego, Ohio, Virginia, Tennessee, etc.) and you can easily see how, just by the end of 2015, the total spent on litigation-related items within ECUSA will easily be WELL OVER FORTY MILLION DOLLARS.

In other words, the total estimated amount has nearly doubled since I first estimated it three years ago. That is an unconscionable waste of non-profit resources. The puny amounts recovered in property values to date pale into insignificance compared to the amounts being squandered in seeking to recover them.

And the administration at 815 is becoming less and less transparent in disclosing the waste on this huge scale. No longer do they break out "legal aid to dioceses" or "Title IV expenses" as separate line items in their monthly statements. Will no one in the Church -- House of Bishops, House of Deputies, clergy, or laity -- hold them to account?

In the next post I shall show how ECUSA's budgeting process is an utter joke when it comes to getting a handle on these costs. If ECUSA were being run like a proper non-profit, and in full compliance with its own canons, the discrepancies between actual and budgeted legal expenses would be an accounting scandal, and would lead to firings all the way up the line.

Ultimately, the New York Attorney General is the officer who has the jurisdiction and power to look into this waste of non-profit assets, and it is high time he did so. After all, at the request of both clergy and laity he invoked his jurisdiction over the scandal involving Treasurer Ellen Cooke, and that involved only a few million dollars: chump change in comparison to what is going on now.

For over seven years now, the Episcopal Church (USA) has had an out-of-control litigation budget. It is a scandal of simply enormous magnitude. It must -- and hopefully soon will -- be brought to a halt.