Anglican Curmudgeon

Canonical Absurdities on the Left

2009-12-09T08:27:00.000-08:00

I have decided to start a virtual trophy room, in which I shall mount the stuffed quotes which display the canonical ignorance of those on the left who ought to know better, but who manifestly do not. Thus, welcome to the first edition of "Canonical Absurdities on the Left." (The trophy room for those on the right will also be set up at an appropriate time, but its specimens will not, from my experience, be as numerous.)

Illustrating yet one more time his tendency to reinvent the canons to his liking, Bishop J. Jon Bruno of the Diocese of Los Angeles has given us in this quotation our first mounted trophy (for some reason, these specimens all turn a sickly green during the taxidermic process):

If by chance people are going to withhold consents because of [Bishop-elect] Mary [Glasspool]'s sexuality, it would be a violation of the canons of this church.

Oh, really, Bishop Bruno? I take it you must be referring to Canon III.1.2, which reads:

No person shall be denied access to the discernment process for any ministry, lay or ordained, in this Church because of race, color, ethnic origin, national origin, sex, marital status, sexual orientation, disabilities or age, except as otherwise provided by these Canons. No right to licensing, ordination, or election is hereby established.

Do you see those two words "discernment process", Bishop? And do you see that last sentence? "No right to . . . ordination or election is hereby established."

So Canon III.1.2 cannot be the one to which you are referring, Bishop Bruno. Let's take a look at 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, disabilities or age, except as otherwise specified by Canons.

Perhaps a vote against Canon Glasspool on the grounds you describe would violate this canon? Not so fast: despite its superficially broad language, this paragraph is part of a Canon entitled "Of Regulations Respecting the Laity", and the marginal description of section 5 itself states: "Rights of Laity." And in case there were any doubt, there is that last clause to make things explicit: "except as otherwise specified by Canons." That language would, among other things, incorporate the qualification in Canon III.1.2 that no right of ordination or election was thereby established.

Well, let us try one more time. How about these provisions in Canon III.9?

From Canon III.9.3(a)(3):

If the Ecclesiastical Authority is satisfied that the person so elected is a duly qualified Priest and that such Priest has accepted the office to which elected, the notice shall be sent to the Secretary of the Convention, who shall record it. Race, color, ethnic origin, sex, national origin, marital status, sexual orientation, disabilities or age, except as otherwise specified by these Canons, shall not be a factor in the determination of the Ecclesiastical Authority as to whether such person is a duly qualified Priest.

And similar language recurs in section III.9.6(a):

No Priest shall preach, minister the Sacraments, or hold any public service, within the limits of any Diocese other than the Diocese in which the Priest is canonically resident for more than two months without a license from the Ecclesiastical Authority of the Diocese in which the Priest desires to so officiate. No Priest shall be denied such a license on account of the Priest's race, color, ethnic origin, sex, national origin, marital status, sexual orientation, disabilities, or age, except as otherwise provided in these Canons.

There is just one problem: while this language is found in Canon III.9, entitled "Of the Life and Work of Priests," there is no equivalent language found in Canon III.12, "Of the Life and Work of a Bishop." Could that have been intentional, Bishop Bruno? Moreover, both of the passages just cited have that qualifier again: "except as otherwise provided in these Canons."

I am afraid it's a "no go", Bishop Bruno. We have exhausted the provisions of the Canons to which you could have been referring. Those diocesan bishops and standing committees who choose to withhold their consent to the election of the Rev. Canon Mary Glasspool cannot be charged with violating any of the Church's Canons.

And one more thing, while I am at it: each of the passages quoted above forbids discrimination based on sexual orientation, not on sexual practice. I am not aware of any single bishop or standing committee who has declared their opposition to the ordination to the ministry of a gay or lesbian person who was celibate. The Rev. Canon Glasspool, however, does not fall into that category. So not only do you read into the Canons prohibitions which are not there, but you cannot even interpret the language that is there.

Finished -- that trophy is now fully mounted. Let us pass on to trophy No. 2, in the form of this quotation provided to us by one Lisa Fox (courtesy of Kendall Harmon):

Recent, fervent comments from Kendall Harmon and Mike Malone make me wonder: Can the bishop and Standing Committee of the Diocese of South Carolina vote on consent to Bishop-Elect Glasspool and still remain within their canons?

You will recall that the Diocese of South Carolina voted on this resolution . . . "to begin withdrawing from all bodies of the Episcopal Church that have assented to actions contrary to Holy Scripture, the doctrine, discipline and worship of Christ as this church has received them, the resolutions of the Lambeth Conference which have expressed the mind of the Communion, the Book of Common Prayer and our Constitution and Canons, until such bodies show a willingness to repent of such actions . . ."

If they indeed passed this resolution, withdrawing from all bodies of TEC, how can they vote on any action of the Episcopal Church, including the election of Bishop-Elect Glasspool?

Here we have a lay person trying to reach canonical conclusions, so I shall give this specimen only a light treatment. (I note in passing, however, that a certain Canon Doctor of the Church has added this uninformed comment to the post just quoted: "So they can't. Vote. But they will. Sigh." My specimens grow apace.)

The process of voting to consent to the election of a bishop (when there is no General Convention due to meet within 120 days) is spelled out in Canon III.11.4, and includes this language:

Each Standing Committee, in not more than one hundred and twenty days after the sending by the electing body of the certificate of the election, shall respond by sending the Standing Committee of the Diocese for which the Bishop is elected either the testimonial of consent in the form set out in paragraph (b) of this Section or written notice of its refusal to give consent.

To refuse to give consent, in this context, has the same practical result as declining to participate in the election altogether. True, the Canon does mandate some response from each standing committee (although not, please note [in this most "hierarchical" of Churches], from the diocesan bishops), but it would certainly do the Standing Committee of the Diocese of South Carolina no harm to reaffirm its unwillingness to participate in actions contrary to Scripture by sending a notice that it withheld its consent to the election of the Rev. Canon Glasspool. (Contrary to Scripture? See Titus 1:6: "A bishop must be blameless, the husband of one wife . . ." It's not difficult to read scripture written as plainly as that.)

That finishes my second trophy: it is now mounted in the trophy room, too. Before leaving the room, however, I shall remark on a potential problem which, given the language of consents to the election of a bishop, might affect the conduct of Bishop Lawrence of South Carolina in this matter (along with other Bishops who have announced they will, or may be expected to, withhold their consent). The language in question (from Canon III.11.4[a] again) reads (with my emphasis added):

The Presiding Bishop, without delay, shall notify every Bishop of this Church exercising jurisdiction of the Presiding Bishop's receipt of the certificates mentioned in this Section and request a statement of consent or withholding of consent. . . If a majority of the Standing Committees of all the Dioceses consents to the ordination of the Bishop-elect, the Standing Committee of the Diocese for which the Bishop is elected shall then forward the evidence of the consent . . . to the Presiding Bishop. If the Presiding Bishop receives sufficient statements to indicate a majority of those Bishops consents to the ordination, the Presiding Bishop shall, without delay, notify the Standing Committee of the Diocese for which the Bishop is elected and the Bishop-elect of the consent.

What we have here is a two-step process. The standing committees send their written consent forms (or their withholding of consent) to the standing committee in the diocese of the bishop-elect; the diocesan bishops, however, communicate their consents (on no prescribed form, again please note [how "hierarchical"!]) directly to the Presiding Bishop. So we have this canonical question: does the phrase "a majority of those Bishops" refer just to those Bishops who return some sort of vote to the Presiding Bishop, or to "every Bishop of this Church exercising jurisdiction"?

If the Presiding Bishop were to be consistent with her parliamentary ruling in the deposition of Bishop Duncan, then the phrase would refer only to those Bishops who actually send something back to her. In that case, a non-response by Bishop Mark Lawrence of South Carolina, or by others who intended to indicate thereby that they were withholding their consent, would not count in the final tally. That, in turn, would have the effect of reducing the required number of overall consents to confirm the election. Thus, in this case, the better practice for such non-consenting Bishops would be to send the Presiding Bishop a letter to that effect.

Note that the same is not true of the standing committees, under the language just quoted. The standing committee of the diocese with the bishop-elect is required to return to the Presiding Bishop, in order for the election to be confirmed, evidence of the consents by "a majority of the Standing Committees of all the Dioceses." So the bishop-elect's standing committee will not bother with the non-consents; what counts are the consents, and there must be 56 of them (given the fiction that ECUSA currently maintains -- that it has 110 "dioceses" with standing committees) to send to the Presiding Bishop before the election can be confirmed. The standing committee of South Carolina, therefore, does not have to send in its non-consent to ensure that it will be counted -- on penalty that if it did not, the total number of consents required might thereby be lessened.

But the observation just made serves to point up, once again, how there is absolutely no textual support, in any of the Canons involving votes which affect the life of the Church, for the Presiding Bishop's reading of the language "a majority of the whole number of Bishops entitled to vote" in Canon IV.9 to allow the deposition of a bishop of the Church on the vote of just a few dozen bishops (a majority of the minimum quorum needed to be present in order to transact business). Under the way she interprets the Canons, far more bishops are needed to elect a colleague than to depose one.

The Best of Times, the Worst of Times

2009-12-08T00:10:00.000-08:00

His Grace, the Lord Archbishop of Canterbury, is unable to placate anyone these days. He was faulted on both sides for his "deer-caught-in-the-headlights" reaction to Pope Benedict XVI's Apostolic Constitution. And now he is being faulted again for not doing enough, or for doing altogether the wrong thing, in reaction to the election of the Rev. Canon Mary Glasspool to be Bishop Suffragan in the Diocese of Los Angeles.

The wrong thing? In the eyes of Colin Coward, Director of the aptly named organization Changing Attitude, ++Rowan has betrayed him both personally, as his former teacher, as well as generically, on behalf of gays and lesbians everywhere:

“I am sure he is still the man I knew as being inclusive. I think he must be torn about inside.”

He added: “The part of me that knows Rowan as a friend still values him as a friend. But another part of me is incredibly disappointed. I feel betrayed and let down.”

And in the eyes of traditional Anglicans, and even other denominations, ++Rowan has once again failed to take decisive disciplinary action against the wayward Episcopal Church (USA), which is constantly testing the limits of his resolve. In the words of Dr. Albert Mohler, President of one of the largest seminaries in Christendom:

In a statement released after the election of Rev. Glasspool as bishop, Archbishop Williams stated that her election "raises very serious questions not just for the Episcopal Church and its place in the Anglican Communion, but for the Communion as a whole." He concluded by stating: "The bishops of the Communion have collectively acknowledged that a period of gracious restraint in respect of actions which are contrary to the mind of the Communion is necessary if our bonds of mutual affection are to hold."

That is the language of a man who -- judging by his words -- is far more committed to affection than to truth. His continuing calls for "gracious restraint" have only earned him the anger of both liberals and conservatives. The liberals are frustrated, to say the least, that Williams appears to lack the courage of his own convictions. Conservatives see his continual refusal to act against the rebellious Episcopal Church as evidence that he does hold those convictions, but is simply biding his time.

"Far more committed to affection than to truth." And yet, the Rev. Colin Coward seems to accuse His Grace of a betrayal of affection, of mutual personal regard once shared in a teacher-student relationship. How can this be?

We see in this sad contrast of opposing viewpoints a profound misunderstanding -- a failure on the one hand to distinguish between the man and the position, and a failure on the other to distinguish between the position and the man. Please allow me to explain.

For the Rev. Coward and his gay and lesbian colleagues, there is a sense of betrayal only because they believe that the Archbishop of Canterbury is no different, in capabilities or beliefs, from the brilliant liberal Welsh theologian whom they encountered as Dr. Rowan Williams. Upon his elevation to the see of St. Augustine, in their view, he should have encountered no difficulty in maintaining exactly the same liberal worldview which he enjoyed displaying in the academic world from which he came. The author of so profound -- and simultaneously graceful and polished -- an essay as The Body's Grace could not possibly have it in him to uphold the offensively manipulated Anglican "consensus" embodied in Resolution 1.10 of the 1998 Lambeth Conference.

At the same time, however, those from the traditional Anglican mold see in Dr. Rowan Williams precisely that waffling liberal, that ivory-tower academic who is unable to take a firm stand against anything, let alone against a flagrant flouting of Scripture -- like that presented when a supposed branch of the one, universal, holy, catholic and apostolic Church sees fit to consecrate an openly practicing homosexual to episcopal rank. The author of so liberal -- and experimentally discursive -- an academic diversion as The Body's Grace could not possibly have it in him to lay down the law to the very Episcopalians who dared to take him up on what he wrote. Can you not see how these words must have resonated with Anglicans in same-sex relationships everywhere?

The whole story of creation, incarnation and our incorporation into the fellowship of Christ's body tells us that God desires us, as if we were God, as if we were that unconditional response to God's giving that God's self makes in the life of the trinity. We are created so that we may be caught up in this; so that we may grow into the wholehearted love of God by learning that God loves us as God loves God.

The life of the Christian community has as its rationale - if not invariably its practical reality - the task of teaching us this: so ordering our relations that human beings may see themselves as desired, as the occasion of joy. . .

How can anyone who wrote those words -- that the "life of the Christian community . . . [consists in] so ordering our relations that human beings may see themselves as desired, as the occasion for joy" -- possibly be antithetical to the idea of a partnered lesbian bishop? And how could anyone who wrote those words at the same time be expected to crack down on those who would tear the fabric of the Communion by presuming to elect a partnered lesbian as a bishop?

This is not really a paradox; there is no contradiction here. What Dr. Williams may have written and held intellectually as an academic has precious little to bear on what the Archbishop of Canterbury can and may do as the titular head of the Anglican Communion. It is as unreasonable to expect that, once appointed, the Archbishop would continue to play the academic as it is to expect that, once appointed, the academic would suddenly assume the mantle of a metropolitan -- and become the Pope, as it were, of the Anglican Communion.

As the Archbishop of Canterbury, ++Rowan Williams is the "first among equals" -- speaking with respect to the bishops of the various Churches in the Anglican Communion, who assemble every ten years or so for the Lambeth Conference. Those paradoxical words express perfectly both the roles of leadership and of subservience embodied in the post. The Archbishop invites other bishops to Lambeth; he does not command their presence there (as was evident when nearly 300 bishops of the Global South spurned their invitations to the most recent Conference). His power, as it were, lies in failing to act, by not sending an invitation (as in the case of the Rt. Rev. V. Gene Robinson), and thus is completely contrary to the traditional manner in which a power is exercised.

At the same time, as Archbishop of Canterbury, ++Rowan Williams is responsible for upholding the consensus of the bishops gathered from time to time at Lambeth -- the ephemeral "mind of the Communion", to which he alluded in his statement quoted above. But this responsibility is just as much circumscribed by his inability to command -- to act like a traditional metropolitan -- in respect to the Communion as a whole. All he can do is remain faithful to that consensus as most recently expressed. To betray it by failing to remind his fellow bishops of what they decided -- or, what would be worse, by acting as though they had never decided it at all -- would be to leave the Communion rudderless, or expressed in my earlier language, as a group of equals without a first.

There can be no doubt in my mind that ++Rowan Williams understands his role perfectly -- indeed, perhaps, all too well. In the homilies he gave to the bishops gathered at Lambeth, he said everything that needed saying about the role of a bishop in the Church (see my posts on those talks here and here for the details). It is not his fault that not one bishop since has appeared to absorb his lessons at Lambeth. (At least, I have yet to hear any bishop in the Communion come to his defense; they all seem to prefer either to attack, to carp and criticize, or to remain silent. Perhaps the indaba groups, by giving lip service to a form of superficial -- but ultimately unachievable -- "equality", worked at odds with Dr. Williams' emphasis on the role of a bishop as diakonos to all, and undid all the good of the homilies.)

Now the very limitations upon the Archbishop's abilities -- embodied in the phrase that he is the "first among equals" -- may at the same time be his undoing, if certain factions are willing and cynical enough to exploit those limitations. One who respects equality by allowing others of equal rank to occupy their own spheres runs always the risk that those others may not reciprocate with equal restraint. Thus when Presiding Bishop Griswold signed the October 2003 communique from Lambeth, as a Primate of the Communion, he was acting as an equal in a meeting of equals. But when, just weeks later, he chose to officiate at the consecration of V. Gene Robinson as bishop, Frank Griswold was arrogating to himself the function of a metropolitan -- and to hell with his "equals". If he could decide that the polity of the Episcopal Church (USA) required that he proceed with Bishop Robinson's consecration -- and only he could make that decision under its polity, for if he had declined out of deference to the October 2003 communique, no one could have countermanded him -- then he could do so only in disregard of his status as an equal at Lambeth, who in the very act of voting on Resolution 1.10 implicitly agreed to subject his status as Primate to their assembled consensus, as determined by the ballot on its adoption.

Thus ++Rowan played true to his role as Archbishop of Canterbury, while Bishop Griswold, enthusiastically supported by the same-sex activists in ECUSA, arrogated to himself the right to act in derogation of the bishops of Lambeth. Both did so despite the scorn which each thereby called upon his decision -- although the collective scorn heaped upon ++Rowan has never ceased, while that allocated to Presiding Bishop Griswold ended with his retirement. By remaining on the stage, and what is more by remaining steadfastly true to the limitations of his position, Archbishop Rowan has remained the sole target on which both sides could vent their anger. Hence he is in the impossible part of a "first among equals" who is now seen as neither "first" nor "equal".

Meanwhile, back at ECUSA, the Most Reverend Frank Griswold has given place to the Most Reverend Katharine Jefferts Schori. If Bishop Griswold arrogated to himself the right to act in derogation of his colleagues at Lambeth, Bishop Jefferts Schori seized the opportunity to so to act even before she had ever gone to Lambeth and met her equals. What is more, she has from the outset of her term in office presumed to act in derogation of her own equals in her own Church. The result has been a double usurpation of authority: where ++Griswold claimed only the right to consecrate a duly elected bishop in defiance of the advice of Resolution 1.10, ++Jefferts Schori has not only announced that she will do the same if the requisite consents for Canon Glasspool are received, but she also has made herself the sole arbiter of whether a bishop who transfers to another Church in the Anglican Communion thereby renounces his orders.

In presuming to claim that the Right Reverend Henry Scriven so renounced his orders in transferring from the Diocese of Pittsburgh to the Diocese of Oxford, and in recently declaring that the Right Reverend Keith Ackerman had done the same in resigning the Diocese of Quincy and going to work under the Bishop of Bolivia, the Presiding Bishop of ECUSA has effectively declared that she alone will be the judge of who can become, and who can remain, a bishop in the Episcopal Church (USA) -- regardless of what her equals in the Communion may believe. They are, to that extent, no longer her equals, but only bishops to be tolerated if they stay out of her way, to be ignored if they presume to disagree, and to be denounced and punished by any means possible if they try to hinder or interfere.

When one bishop so distorts the polity of the Communion as to claim the power to decide status without regard to the opinion -- nay, the full consensus -- of the other bishops in the Anglican Communion, what we have is no longer a Communion, but an autarchy. The tragedy is that the Anglican Communion was never designed to cope with such a development. Henry VIII may have replaced the Pope as the head of the Church of England, but neither Henry nor any other English monarch ever claimed supreme authority over any other church. As the colonial branches of the Church of England evolved into the separate churches of the Communion, there of necessity arose the relationship of all Anglican bishops as equals, with the Archbishop of Canterbury being regarded, out of historical deference, as the first among equals.

Now we have the Archbishop of Canterbury still accorded deference as a first, but only when the Presiding Bishop of ECUSA decides that she may defer to him in her own interest. For all the rest of the time, she regards herself as a first whose sphere is, in its international extent, superior to that even of Canterbury's, and as more than equal to anyone else's. What deference did she decide to show in the face of the Archbishop's cautionary advice to the General Convention at Anaheim? None whatsoever. And what deference will she show to his warning with regard to proceeding with taking order for the consecration of Bishop Glasspool, if the latter is confirmed? Again, none whatsoever.

This curmudgeon finds it ironic, to say the least, that the one who takes all the heat for the Presiding Bishop's intransigency is the Archbishop of Canterbury. As a first among equals, his "power" consists only in what he can decide not to do. While others in his place might have (not) done more, and refused to extend invitations to Lambeth to all of the bishops in ECUSA, Dr. Williams chose to try to be the peacemaker, and withheld his invitation only from Bishop Robinson, and those whom his predecessor had chosen not to recognize. One may disagree with the extent of his inaction, but it remains true that he can wield power only by not acting -- and that is a very limited kind of power.

The Presiding Bishop of ECUSA, in contrast, wields her power by consecrating, deposing and declaring renunciations -- all affirmative actions. When it comes to comparing power, therefore, she has the ability to win hands down -- if she chooses to take things that far. A bishop with more experience behind her, when elevated to a position of representing her whole Church to the Communion at large, might well be envisioned as wanting to be more deferential to her Anglican colleagues before presuming to act as though their views made no difference. But that is not the way of Katharine Jefferts Schori.

We have thus the best of Archbishops, and the worst of Presiding Bishops. It is the best of times, and the worst of times. This blog is all about "the trials and tribulations of being in the Episcopal Church (USA) and the Anglican Communion at the same time." I shall continue to root for ++Rowan's power of not acting, as the best means of absorbing the blows and outlasting the wounds inflicted by the contumacy of ++Katharine. I am not an apologist for him; both ++Rowan and I know that "help is in the name of the Lord." The more that ++Katharine leads ECUSA down its path of isolation and irrelevancy, the less difficulty there is in seeing the path that is left for ++Rowan: the one that keeps as many together as long as possible, until those who are driving the Communion apart have finally achieved the fulfillment of their self-chosen destiny. For ++Rowan to attempt to impose that destiny on them before they themselves have irrevocably chosen it would be to undermine the very essence of his part in the drama, as the first among equals.

1200 Limousines, 140 Private Jets -- Must Be a Global Warming Conference

2009-12-07T08:15:00.000-08:00

[H/T for the headline and story link to Ace of Spades. Meanwhile, while I was creating this report, Jackie Bruchi at StandFirm has posted in a similar vein.]

Since I am housebound this morning with eighteen inches of snow blocking our driveway, I thought I would take note of the hypocrisy surrounding the Climate Conference in Copenhagen which began yesterday. First of all, if you click on the link just given, you will be treated to this cozy and friendly picture:

The caption reads: "Climate Friendly City Car in front of the Bella Center [in Copenhagen, where the Conference is taking place]."

That is the PR for the event. Now for the reality:

On a normal day, Majken Friss Jorgensen, managing director of Copenhagen's biggest limousine company, says her firm has twelve vehicles on the road. During the "summit to save the world", which opens here tomorrow, she will have 200.

"We thought they were not going to have many cars, due to it being a climate convention," she says. "But it seems that somebody last week looked at the weather report."

Ms Jorgensen reckons that between her and her rivals the total number of limos in Copenhagen next week has already broken the 1,200 barrier. The French alone rang up on Thursday and ordered another 42. "We haven't got enough limos in the country to fulfil the demand," she says. "We're having to drive them in hundreds of miles from Germany and Sweden."

And the total number of electric cars or hybrids among that number? "Five," says Ms Jorgensen. "The government has some alternative fuel cars but the rest will be petrol or diesel. We don't have any hybrids in Denmark, unfortunately, due to the extreme taxes on those cars. It makes no sense at all, but it's very Danish."

So there are no hybrids, because those are subject to "extreme taxes" in Denmark, but they are driving in hundreds of the big limousines from Germany and Sweden -- hundreds of miles (and a ferry ride) away. Thus the picture which the Conference should be running is this:

(Click to enlarge. Oh, wait -- that's not Copenhagen, that's San Francisco. Well, never mind: same same.)

And our climate elites not only have to be driven in style around Copenhagen once they are there; they have to fly there in style in the first place. But no common commercial flights for them: no, the same story reports that there will be at least 140 private jets vying for accommodation in all the local and regional airports:

The airport says it is expecting up to 140 extra private jets during the peak period alone, so far over its capacity that the planes will have to fly off to regional airports – or to Sweden – to park, returning to Copenhagen to pick up their VIP passengers.

And just who are the people coming in this way? Oh, nobody you ever heard of: just 98 "world leaders," including pacesetters like President Obama, Leonardo DiCaprio, Daryl Hannah, Helena Christensen, Archbishop Desmond Tutu and Prince Charles. (What other timely topic could bring together just those six individuals?) Plus, of course, 5,000 journalists sent by the media, who are so objective about the subject of global warming that one or two of them even carried a story in recent days about ClimateGate. But that will be nothing compared to the coverage which 5,000 reporters can churn out about Copenhagen -- just you wait.

The Danes are no slouches when it comes to ~~gouging~~ charging these celebrities the going rate, and helping their expense accounts meet their quotas: hotels are fully booked at rates of $1,062 per night, and room service is stocking up on caviar and champagne.

At the same time, Copenhagen's mayor was doing her bit to promote "environmental" consciousness by distributing postcards to the rooms of each of those first-class hotels which carried this message: "Be sustainable. Don't buy sex." She also wrote hotel managers, asking them to implement measures to prevent ladies of the night from making nocturnal visits. The result? Copenhagen's social escorts were so outraged at this attempt to hinder their business during the conference that they announced their services would be available "on the house" to any delegate who produced one of the disparaging postcards along with his Conference credentials. And no, as Dave Barry says, I am not making this up.

To sum up: this Copenhagen Conference bids fair to outdo a General Convention for assembled hypocrisy and outward farce. Maybe while the 15,000 delegates are deliberating how to make the rest of us cut back on our lifestyles, they could spare a limo -- delivered by private jet, of course -- to get me to work today. (I'll be the guy at the bottom of my driveway, standing in snowshoes.)

Caligula Converts, Makes His Horse a Bishop

2009-12-06T07:24:00.000-08:00

(ENS, Rome) The Emperor of Rome, Gaius Caligula, announced yesterday that he had become a convert to Christianity, and that the Roman Empire would now become the "Episcopalian Empire." In celebration of this momentous event, he said that he would make his horse, Incitatus, a bishop in the Episcopal Church.

"I have learned that the Episcopal Church is a very inclusive church," he said in an interview with Empirical News. "Their Presiding Bishop has said that she will take orders to consecrate any bishop elected in accordance with the rules. Incitatus has been baptized, and so now under the Church's canons, he cannot be excluded from holy orders. We will hold a convention, which I personally shall call, to declare ourselves a Diocese of the Church (I have been told that they cannot wait to have a Diocese of Rome), and then we will elect my horse and notify the Presiding Bishop."

Asked about this news, the Archbishop of Canterbury had the following to say: "The Anglican Communion welcomes all to its doors, and asks only that they observe a period of gracious restraint before engaging in acts which some might take to be contrary to the mind of the Communion. As in any Communion, there can be many a slip betwixt cup and the lip, and I am confident that when (and if) the time comes to extend episcopal fellowship to those whose holy orders qualify them for full participation in the councils here at Lambeth, I or my successor will be up to that task, and will weigh in at the appropriate time with further remarks."

Bishop J. Jon Bruno, of the Diocese of Los Angeles, said that a baptized horse had every bit as much right to become a bishop as he, a divorcé, did. He praised Caligula for his humanitarian act, and observed that it would lead to less lion fodder in the Circus Maximus. "Everyone can be welcomed into the Episcopal Church," he said. "The only losers are the lions."

Friday TED Talk: Carolyn Porco Flies Us to Saturn

2009-12-04T07:06:00.000-08:00

Planetary scientist Carolyn Porco, who heads up the Imaging Team for the Cassini mission to Saturn, in seventeen brief minutes shares the amazing photography and scientific results which the mission contributed to our knowledge of the distant ring planet. Particularly fascinating is her description of the Huygens probe which Cassini landed on Saturn's largest moon, Titan, and which sent back the first photographs ever from the surface of another planetary satellite. She follows that accomplishment with an account of Cassini's amazing discovery of liquid water under the south pole of Enceladus, the sixth largest of Saturn's sixty-one moons:

You may click on the button above to watch her talk, but this is one TED lecture I really recommend watching in its high-resolution version, if you have Quicktime or Windows Media Player installed. The stunning images of Saturn which she shows at the end can best be appreciated in that format.

There is a brief biography of Carolyn Porco on the TED site, and Wikipedia's article on her is here. There are websites for the Cassini Imaging Central Laboratory for Operations, and also for the latest images and news from Cassini, including a virtual tour of Saturn in 3-D. (The last requires installation of an add-in to your browser.) All are well worth your time.

Anatomy of a Church Property Lawsuit (Tennessee) - Part I

2009-12-02T00:01:00.000-08:00

The Convention of the Protestant Episcopal Church in the Diocese of Tennessee, a religious corporation organized under Tennessee law, and its diocesan bishop, the Rt. Rev. John C. Bauerschmidt, filed on October 30, 2009 an action in the Chancery Court of Davidson County to recover the possession of St. Andrew's, a parish in Nashville, from its vestry and rector. A copy of the complaint may be viewed or downloaded (in Adobe Acrobat format) from this link. In this series of posts, I would like to use the complaint as a prototype of the typical Dennis Canon lawsuit which is filed when a parish votes to realign with a different entity than the Episcopal Diocese of which it formerly had been a member. In this case, the parish of St. Andrew's voted to realign with the Diocese of Quincy, which since the parish's vote has itself voted to realign with the Anglican Province of the Southern Cone.

The complaint begins in conventional fashion, by naming and identifying the parties to the lawsuit, and by justifying why the case is brought in Davidson County (where the parish's property is located). The parties plaintiff are, as mentioned, the corporation which is the Diocese of Tennessee, and its current bishop, Bishop Bauerschmidt. The defendants are the Rev. James M. Guill, rector of St. Andrew's, along with the parish's Senior Warden and Vestry members, and the parish corporation itself, which goes by the name of "The Rector, Wardens, and Vestrymen of St. Andrew's Parish."

The first unusual aspect of the lawsuit to notice is that the Rector, Senior Warden and Vestry members are named as defendants individually -- even though the only relief sought by the complaint is a declaration that the parish property now belongs to the Diocese, and that the bishop is entitled to take possession of it. Normally, if I were to file a lawsuit against a corporation (say, Ford Motor Company), I would name only the corporation, and not its President and the members of its Board of Directors, individually. The reason is that a corporation is regarded in the law as its own separate person, with the capacity to sue and to be sued in its own name. One would join the individual directors and officers in the lawsuit against the corporation only if those individuals committed their own civil wrongs, apart from the corporation, and thus were jointly liable with it.

(Caveat: I am not a member of the Tennessee bar, and do not claim to have any expertise in the law of that State. I shall count on colleagues who are to correct me if I misstate anything particular about Tennessee law.)

It is possible that the Rector and the Vestry members were named individually because they are the ones against whom any injunctive relief granted by the court would have to operate. Although the complaint does not set out a claim for injunctive relief, the prayer of the complaint (the part which tells the court what remedies the plaintiffs are specifically seeking) does request "such injunctive relief as may be necessary to effectuate the Court's declaration [of who is the rightful owner of the parish property] . . . ." Again, I defer to my Tennessee colleagues as to whether this is a well-pled claim for injunctive relief under Tennessee law.

With those caveats in mind, let us proceed to dissect the complaint. It gets into trouble, in my view, right away when it tries to explain why it names the rector and individual vestry members (whom it calls "the Disaffiliating Individuals") as parties defendant (par. 3):

. . . Upon information and belief, each of the Disaffiliating Individuals while serving as a member of the Vestry of St. Andrew's disaffiliated themselves and the other members of St. Andrew's from the Diocese of Tennessee and The Episcopal Church, as set forth below.

I have added the bold emphasis to stress the fact that I am unable, in my wildest imagination, to conceive how it would be possible for the "Disaffiliating Individuals" to disaffiliate both themselves and the other members of St. Andrew's from the Diocese of Tennessee and from the Episcopal Church (USA), as baldly alleged. If the complaint is intending to allege that the decision to realign was taken just by the nine named members of St. Andrew's parish, it is simply wrong -- as it itself demonstrates (see below). There is no factual means by which the named defendants were responsible for anyone's decision but their own.

The complaint goes on to allege:

7. This is a civil (not doctrinal) dispute over title to and possession of certain real and personal property, and therefore, is properly before this court for adjudication using "neutral principals of law" [sic] as announced by the U.S. Supreme Court and followed by the courts of this state. In particular, the dispute between the parties requires application and interpretation of Tennessee law for resolving church property disputes and the Constitutions and Canons of the Diocese and The Episcopal Church.

All right, so it is claimed that this is not a doctrinal dispute about religion, but only a dispute over property which can be resolved by the court's application of neutral principles of law. (I shudder for my legal colleagues who cannot bother to distinguish between "principles" and "principals." As my mother -- who taught elementary school for over thirty-five years -- drilled into me, one can distinguish between the spellings by remembering [at least back then it may have been true] that "the principal is your 'pal'.")

However, note that the application of "neutral principles" is said to require the "interpretation" of not only Tennessee law, but also of "the Constitution and Canons of the Diocese and The Episcopal Church." Hmmm. I thought secular courts were not supposed to get into the "interpretation" of church canons. Plus, we have this provision in Canon IV.14.2:

Sec. 2. Resort to secular courts. No Member of the Clergy of this Church may resort to the secular courts for the purpose of interpreting the Constitution and Canons, or for the purpose of resolving any dispute arising thereunder . . .

So how, exactly, does Bishop Bauerschmidt get away with asking the Tennessee Chancery Court to "interpret" the Constitution and Canons of the Episcopal Church (USA)? It must be one of those double standards of which those who follow "fuzzy logic" are so fond: if they depose you in plain contravention of Canon IV.9, you are forbidden from going to court to complain that the Church did not properly apply or interpret its own Canon, but if they want to take you to court, then by all means -- be our guest, Judge, and interpret the Canons to your heart's content!

The heart of the Diocese's lawsuit is contained in the next two paragraphs:

8. This dispute is occasioned by the decision of the Disaffiliating Individuals to separate from the Diocese and The Episcopal Church and thereby to control and use the Woodmont Property in a manner inconsistent with and contrary to the Constitutions and Canons of the Diocese and The Episcopal Church. The Woodmont Property is impressed with a trust in favor of the Diocese and The Episcopal Church, subject to S1. Andrew's use.

9. Because the Disaffiliating Individuals have openly and publicly separated themselves from the Diocese and The Episcopal Church, they no longer have the right to use, occupy, or transfer the Woodmont Property or control the parish corporation. Pursuant to the Constitutions and Canons of the Diocese and The Episcopal Church, the bishop has a fiduciary duty, on behalf of the Diocese, to take possession of the title to the property and facilitate its use for proper purposes. This action is in furtherance of this duty.

There are a number of concepts which the plaintiffs have improperly conjoined here. In the first place, it is the parish corporation which owns and occupies the property in question, through its members -- who are much more numerous than just the "Disaffiliating Individuals" (the rector and the Parish board [vestry]). The actions of the Disaffiliating Individuals are not the operative actions in this case, as we shall see when we get into the details.

In the second place, the bishop's "fiduciary duty" under the diocesan canons applies only if, at the time the bishop proposes to act, the parish in question is still subject to those diocesan canons. That was, long since, not the case with St. Andrew's, as we again shall see in a subsequent post. And the meaning of the Dennis Canon, as we shall also see, is by no means clear. Specifically, the Canon says absolutely nothing about taking possession of a parish's property if it is no longer aligned with the Episcopal Church (USA).

The complaint now begins with the boilerplate allegations that have become standard fare in suits filed by the Church and its dioceses in actions to recover parish property:

10. The Episcopal Church is a hierarchical, religious denomination with three distinct tiers: (a) The Episcopal Church; (b) its dioceses; and (c) worshiping congregations, generally composed of parishes and missions.

As I have made clear in several prior posts, there is no "tier", or even entity, which one can point to as "the Episcopal Church (USA)". Instead, what there is in law is a voluntary association of separate Dioceses, which have come together to act in common purpose as "the Episcopal Church (USA)". As an association, the "Church" is unincorporated -- that is, it is not a separate person in the eyes of the law. So it has no individual identity; the law regards it simply as the collection of dioceses which are its members. The analogy is to a neighborhood book club that meets regularly to discuss books of common interest. Since there is no corporation (most book clubs I know do not bother), there are only the individuals who belong to it, and who gather from time to time. The book club owns no property of its own, and can take no legal action of any kind except by and through its individual members.

Alleging that the "Church" occupies a "tier" at the top is thus engaging in mental tomfoolery. There is nothing there: no legal person at the top whom the law can recognize. When it comes to the Episcopal Church (USA), just like your neighborhood book club, or road association, all there is are the people (dioceses acting through their bishops and deputies) who meet together and decide or do things as a group (in matters of importance in General Convention, the vote is taken separately by orders, and the measures must pass by an affirmative vote in both orders, as well as in the House of Bishops). Without the group itself, the Church itself would be incapable of doing or deciding a blessed thing.

[UPDATE: The economist Milton Friedman made exactly the same point about the government of these United States. In words that are also directly applicable to the Episcopal Church (USA), he wrote (Capital and Freedom, 1962) -- I have added the emphasis:

In a much quoted passage in his inaugural address, President Kennedy said, “Ask not what your country can do for you—ask what you can do for your country....” Neither half of the statement expresses a relation between the citizen and his government that is worthy of the ideals of free men in a free society. The paternalistic “what your country can do for you” implies that the government is the patron, the citizen the ward, a view that is at odds with the free man’s belief in his own responsibility for his own destiny. The organismic, “what you can do for your country” implies that the government is the master or the deity, the citizen, the servant or the votary. To the free man, the country is the collection of individuals who compose it, not something over and above them... [H]e regards government as a means, an instrumentality, neither a grantor of favors and gifts, nor a master or god to be blindly worshipped and served.

The free man will ask neither what his country can do for him nor what he can do for his country. He will ask rather “What can I and my compatriots do through government” to . . . advance our several goals and purposes, and above all, to protect our freedom? And he will accompany this question with another: How can we keep the government we create from becoming a Frankenstein that will destroy the very freedom we establish it to protect?

H/T: Ilya Somin, The Volokh Conspiracy]

The complaint continues with its fantasy allegations:

11. The cohesiveness and integrity of The Episcopal Church, as a unified communion of believers, is insured by requirements that the dioceses submit to the authority of the Constitution and Canons of The Episcopal Church, and that missions and parishes likewise submit to the authority of the diocese and The Episcopal Church. Parishes and missions must act in conformity with and subject to the authority of the General Convention, the Constitution and Canons and Book of Common Prayer of The Episcopal Church, their diocesan bishop and their respective diocesan conventions and Constitution and Canons.

The "cohesiveness and integrity of The Episcopal Church"? Give me a break. Can you currently provide any witness of such "cohesiveness and integrity"? Bishops and individual clergy, right and left, decide whether to offer communion to the unbaptized, despite the command of Canon I.17.7 that forbids such persons to receive communion. Bishops, including the current Presiding Bishop, regularly announce their disagreement with, and disparagement of, the "faith once delivered to the saints" -- and no one, certainly not the hypothetical "Church" at the top -- ever calls them to account. The Church's disciplinary canons are routinely misapplied and disregarded. Bishops are "deposed" without a canonically sufficient number of votes; clergy who transfer to other provinces in the Anglican Communion -- even the Church of England -- are routinely informed that they have thereby "renounced their orders".

The Episcopal Church (USA) currently presents to the world, and especially to the Anglican Communion, about as chaotic and discordant an ecclesial structure as one could possibly imagine in one's worst dreams. Its declining membership and revenues, and its obsession with affirming the exact opposite of what Scripture teaches, reflect its own "disaffiliation" from the one holy, catholic and apostolic Church of God. Those who, like the parish of St. Andrew's, disaffiliate from it are only doing what is required to remain affiliated with the traditions once embodied in the entire Anglican Communion -- and still practiced by an overwhelming majority of its constituents. That is why I refuse to term such an act as "disaffiliation" -- it is instead a realignment required by the fact that the Episcopal Church (USA) has veered so far off course.

Needless to say, there is no language in the Episcopal Church (USA)'s Constitution or Canons which requires that a diocese, or parish, "submit to [their] authority." (Need I point to the practice of communion for the unbaptized again?) Instead, clergy are generally required to submit to the authority of their bishop -- but only so long as that authority is being exercised in conformity with the Constitution and Canons in the first place. And there is no provision of the Constitution or Canons which requires any standard of performance -- let alone submission -- by lay members of the Church. (General Convention, it should not be necessary to point out, has nowhere been granted authority over individual parishes, vestries, or congregations. The much-cited Canon I.17.8, which requires that anyone accepting "any office in this Church" perform their duties "well and faithfully" applies on its face only to persons whom the national Church has the power to appoint. To read it as applying to vestry members and officers at the parish level would entail a hopeless conflict with individual parish bylaws and state law provisions governing the conduct of officers of religious corporations. If there is no power to fill the office in question, then there can be no power to remove anyone from it, or to tell them how to do their job.)

The complaint continues with the specific allegations of how it contends that the national and diocesan canons imposed a trust on St. Andrew's parish property. As we shall see in the next post, the terms of that "trust" are nowhere spelled out. Moreover, the Diocese should be estopped to claim any kind of trust applicable to the property, since the parish purchased from it a warranty deed to the property in 1966. The deed granted the property outright, with no reservation of any kind of trust, or "right of entry for condition broken." And the parish subsequently amended its articles to remove its accession to the diocesan and national canons before the last-minute and completely unnoticed adoption of the Dennis Canon (illegally, as it turns out -- but who's concerned about legality in the current Church?) in July 1979.

I will go into all the detail about the weaknesses of the case under the Dennis Canon in my next post on this topic.

The Ceremony for the Ordination of a Bishop (Updated)

2009-11-30T07:54:00.000-08:00

From a Report of the Standing Commission on Liturgy and Music, concerning proposed revisions to the Service for the Ordination of a Bishop (BCP, pages 513-19; revisions are given in red):

The Presentation

The bishops and people sit. Representatives of the diocese, both Priests and Lay Persons, standing before the Presiding Bishop, present the bishop-elect, saying

N., Bishop in The Episcopal Church ~~of God~~, the clergy and people of the Diocese of N., trusting in the guidance of the Holy Spirit, and in our ability to choose the candidate who makes us most comfortable with ourselves, have chosen N.N. to be a bishop and chief pastor. We therefore ask you to lay your hands upon him and in the power of the Holy Spirit to consecrate him a bishop in The ~~one, holy, catholic, and apostolic~~Episcopal Church.

The Presiding Bishop then directs that testimonials of the election be read.

When the reading of the testimonials is ended, the Presiding Bishop requires the following promise from the Bishop-elect

In the Name of the Father, and of the Son, and of the Holy Spirit, I, N.N., chosen Bishop of the Church in N., solemnly declare that I do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, except when they declare things I know to be contrary to our modern experience, and to contain ~~all~~ many things necessary to our collective (and not individual) salvation; and I do solemnly engage to conform to the doctrine, discipline, and worship of The Episcopal Church as declared and defined from time to time by her Reverence, our Presiding Bishop.

The Bishop-elect then signs the above Declaration in the sight of all present. The witnesses add their signatures.

All stand.

The Presiding Bishop then says the following, or similar words, and asks the response of the people

Brothers and sisters in Christ Jesus, you have heard testimony given that N.N. has been duly and lawfully elected to be a bishop of the Church of God to serve in the Diocese of N. You have ~~been~~ assured us of his suitability and you know that the Church has approved him for this sacred responsibility. Nevertheless, if any of you know any reason why we should not proceed, let it now be made known.

If no objection is made, the Presiding Bishop continues

Is it your will that we ordain N. a bishop?

The People respond in these or other words

That is our will.

Presiding Bishop

Will you uphold N. as bishop?

The People respond in these or other words

We will.

The Presiding Bishop then says

The Scriptures tell us that our Savior Christ spent the whole night in prayer before he chose and sent forth his twelve apostles. Likewise, the apostles prayed before they appointed Matthias to be one of their number. Let us, therefore, follow their examples, and offer our prayers to Almighty God before we ordain N. for the work to which we trust the Holy Spirit has called him.

All kneel, and the Person appointed leads the Litany for Ordinations, or some other approved litany. At the end of the litany, after the Kyries, the Presiding Bishop stands and reads the Collect for the Day, or the following Collect, or both, first saying

The Lord be with you

People And also with you.

Let us pray.
O God of unchangeable power and eternal light: Look favorably on your whole Church, that wonderful and sacred mystery; by the effectual working of your providence, carry out in tranquillity the plan of salvation; let the whole world see and know that things which were cast down are being raised up, those who were excluded are being included, and things which had grown old are being made new, and that all things are being brought to their perfection by him through whom ~~all~~ many things were made, your Son Jesus Christ our Lord; who lives and reigns with you, in the unity of the Holy Spirit, one God, for ever and ever. Amen.

The Ministry of the Word

Three Lessons are read. Lay persons read the Old Testament Lesson and the Epistle.

Psalm 40

For the music director; by V. Gene, a psalm.

40:1 I relied completely on the Lord,

and he turned toward me

and heard my cry for help.

40:2 He lifted me out of the watery pit,

out of the slimy mud.

He placed my feet on a rock

and gave me secure footing.

40:3 He gave me reason to sing a new song,

praising our God.

May many see what God has done,

so that they might swear allegiance to him and trust in the Lord!

40:4 How blessed is the one who trusts in the Lord

and does not seek help from the proud or from liars!

40:5 O Lord, my God, you have accomplished many things;

you have done amazing things and carried out your purposes for us.

No one can thwart you!

I want to declare them and talk about them,

but they are too numerous to recount!

40:6 Receiving sacrifices and offerings are not your primary concern.

You make that quite clear to me!

You do not ask for burnt sacrifices and sin offerings.

40:7 Then I say,

“Look! I come!

What is written in the scroll pertains to me.

40:8 I want to do what pleases you, my God.

Your law dominates my thoughts.”

40:9 I have told the great assembly about your justice.

Look! I spare no words!

O Lord, you know this is true.

40:10 I have not failed to tell about your justice;

I spoke about your reliability and deliverance;

I have not neglected to tell the great assembly about your loyal love and faithfulness.

40:11 O Lord, you do not withhold your compassion from me.

May your loyal love and faithfulness continually protect me!

40:12 For innumerable dangers surround me.

My sins overtake me

so I am unable to see;

they outnumber the hairs of my head

so my strength fails me.

40:13 Please be willing, O Lord, to rescue me!

O Lord, hurry and help me!

40:14 May those who are trying to snatch away my life

be totally embarrassed and ashamed!

May those who want to harm me

be turned back and ashamed!

40:15 May those who say to me, “Aha! Aha!”

be humiliated and disgraced!

40:16 May all those who seek you be happy and rejoice in you!

May those who love to experience your deliverance say continually,

“May the Lord be praised!”

40:17 I am oppressed and needy!

May the Lord pay attention to me!

1 Timothy 3

Qualifications for Bishops

3:1 This saying is trustworthy: “If someone aspires to the office of bishop, he desires a good work.” 3:2 The bishop then must be above reproach, the husband of one wife, temperate, self-controlled, respectable, hospitable, an able teacher, [pause for laughter] 3:3 not a drunkard, not violent, but gentle, not contentious, free from the love of money. [Pause for great laughter.] 3:4 He must manage his own household well and keep his children in control without losing his dignity. [Pause for a consecrating bishop to interject: "I'd like to have a word with whoever it was who selected this reading."] 3:5 But if someone does not know how to manage his own household, how will he care for the church of God? 3:6 He must not be a recent convert or he may become arrogant and fall into the punishment that the devil will exact. 3:7 And he must be well thought of by those outside the faith, so that he may not fall into disgrace and be caught by the devil’s trap. [Wait for laughter to die down before continuing.]

Then, all standing, a Deacon or a Priest reads the Gospel, first saying

The Holy Gospel of our Lord Jesus Christ according to St. Luke.
People Glory to you, Lord Christ.

Luke 24

Jesus’ Final Commission

24:44 Then he said to them, “These are my words that I spoke to you while I was still with you, that everything written about me in the law of Moses and the prophets and the psalms must be fulfilled.” 24:45 Then he opened their minds so they could understand the scriptures, 24:46 and said to them, “Thus it stands written that the Christ would suffer and would rise from the dead on the third day, 24:47 and repentance for the forgiveness of sins would be proclaimed in his name to all nations, beginning from Jerusalem. 24:48 You are witnesses of these things. 24:49 And look, I am sending you what my Father promised. [Pause for consecrating bishop to interject: "That's more like it."]

The Sermon

The Sermon is to take as its text the following passage from The Collected Sermons of the Right Rev. Frank Griswold III:

Broadly speaking, the Episcopal Church is in conflict with Scripture. The only way to justify it is to say, well, Jesus talks about the Spirit guiding the church and guiding believers and bringing to their awareness things they cannot deal with yet . . . this has led the church to in effect contradict the words of the Gospel.

After the Sermon, the Congregation sings, to the tune "A Mighty Fortress Is Our God", a this hymn with words by Dr. Louie Crew.

The Examination

All now sit, except the bishop-elect, who stands facing the bishops. The Presiding Bishop addresses the bishop-elect

My brother, the people have chosen you and have affirmed their trust in you by acclaiming your election. A bishop in God’s holy Church is called to be one with the apostles in proclaiming Christ’s resurrection and interpreting the Gospel, and to testify to Christ’s sovereignty as Lord of lords and King of kings.

You are called to guard the faith, unity, and discipline of the Church; to celebrate and to provide for the administration of the sacraments of the New Covenant; to ordain priests and deacons and to join in ordaining bishops; and to be in all things a faithful pastor and wholesome example for the entire flock of Christ.

With your fellow bishops you will share in the leadership of the Church throughout the world. Your heritage is the faith of patriarchs, prophets, apostles, and martyrs, and those of every generation who have looked to God in hope. Your joy will be to follow him who came, not to be served, but to serve, and to give his life a ransom for many.

Are you persuaded that God has called you to the office of bishop?

Answer I am so persuaded.

The following questions are then addressed to the bishop-elect by one or more of the other bishops. The ordinand may answer with fingers crossed behind his back.

Bishop Will you accept this call and fulfill this trust in obedience to Christ?

Answer I will obey Christ, and will serve in his name.

Bishop Will you be faithful in prayer, and in the study of Holy Scripture, that you may have the mind of Christ?

Answer I will, for he is my help.

Bishop Will you boldly proclaim and interpret the Gospel of Christ as you understand it, enlightening the minds and stirring up the conscience of your people?

Answer I will, in the power of the Spirit.

Bishop As a chief priest and pastor, will you encourage and support all baptized people in their gifts and ministries, nourish them from the riches of God’s grace, pray for them without ceasing, and celebrate with them the sacraments of our redemption, making provision for a generous pastoral response to meet the needs of members of this Church? [Here the Bishop may wink twice.]

Answer I will, in the name of Christ, the Shepherd and Bishop of our souls. [Winks back.]

Presiding Bishop Will you guard the faith, unity, and discipline of the Church, and vote to depose whomever I say to depose?

Answer I will, for the love of God.

Bishop Will you share with your fellow bishops in the government of the whole Church; will you sustain your fellow presbyters and take counsel with them, using indaba techniques wherever possible; will you guide and strengthen the deacons and all others who minister in the Church?

Answer I will, by the grace given me.

Bishop Will you be merciful to all, show compassion to the poor and strangers with appropriate placards, take tea with the Queen at Lambeth, and defend those who have no helper?

Answer I will, for the sake of Christ Jesus.

Bishop Will you not obey or enforce the Church's traditional teaching on sexuality?

Answer Of course, otherwise I would not have been elected.

All stand. The Presiding Bishop then says

N., through these promises you have committed yourself to God, to serve this Church in the office of bishop. . . .

The laying on of hands is optional. After a brief benediction, the service concludes, and all may adjourn for sherry.

Friday TED Talk: Magnus Larsson on Turning Dunes into Architecture

2009-11-27T06:00:00.000-08:00

This was one of the more remarkable talks given at the TED Global Conference at Oxford in 2009. Magnus Larsson is still a student in architecture at University College London. He heard about a team at the University of California at Davis which had been studying how to apply the microorganism bacillus pasteurii to solidify the ground in earthquake-prone areas. This remarkable bacterium

lives between sand grains and in soils. Research by Professor Jason DeJong and his colleagues at the University of California at Davis and the University of Massachusetts have shown that the bacterium causes calcite, or calcium carbonate, to precipitate, which glues the grains together. Inject sand with cultures of these bacteria, feed them well, provide oxygen and a source of calcium, and they will turn loose sand into solid rock. As DeJong says, "Starting from a sand pile, you turn it back into sandstone."

Magnus Larsson describes in the video below his project to use the properties of this bacterium to build a "Great Wall" across the southern Sahara Desert. The wall would provide shelter for nomads and wildlife while simultaneously acting as a natural barrier to protect against the destructive sandstorms of the region. As he describes it: "All I did was to deliberately misapply their technology ... and to pump up the scale, and turn it into a 6,000-km-long wall that's made of sand and protects against sand."

You may read more about Magnus Larsson and his project in the link provided above, as well as at this page. His talk may be downloaded from this page. It is a brilliant example of adapting nature to improve nature.

A Ceasing of Seizing

2009-11-25T17:36:00.000-08:00

Father Mark Harris is upset on the eve of Thanksgiving. Actually, I am, too -- so that makes two of us. Except that what upsets Father Harris has little to do with reality, so that I cannot empathize with him this time (usually I can manage a sentiment or two in his direction); the ill-founded basis for his plaint leaves him beyond my pale.

Let us begin by looking at the litigation in San Joaquin, already covered extensively in multiple posts on this blog. One would think that by now, one could agree on the simple facts.

In December 2006 and again in December 2007, an overwhelming majority of both orders of deputies (lay and clerical) to the Diocesan Annual Convention voted to approve amendments to the Diocese's Constitution. The vote was strictly in accordance with the provisions in the Constitution for its amendment, and the measures to amend passed at two successive annual Conventions with the required supermajorities.

The amendments thus approved were not to Father Harris' liking, or to the liking of ECUSA's Executive Council, or of its Presiding Bishop. The reason is that they effected the realignment of the Diocese of San Joaquin. By the amendments adopted, the Diocese withdrew its affiliation with ECUSA, and affiliated temporarily with the Anglican Province of the Southern Cone -- a co-equal member with ECUSA of the Anglican Communion.

The terms of the realignment were especially generous to those parishes which wanted to remain in alignment with ECUSA: each such parish was given the option of declining to realign with the Diocese, and of staying instead within the structures of ECUSA. Each such parish was assured that it would not have to follow the rest of the parishes, nor would it have to vacate its property and allow the Diocese to take it over. As long as it did not owe the Diocese any money for its property, the Diocese would yield title to it, free and clear.

Now, as has been noted many times on this site, ECUSA's Dennis Canon has no language that makes it applicable to property held by a Diocese, as opposed to "property held by or for the benefit of any Parish, Mission, or Congregation." Nor is there any language in the Constitution or Canons of ECUSA that requires a Diocese to surrender its own property should it choose to withdraw from the Church. (Imagine if you belonged to a road association with your neighbors, which maintained the common road that served each of your properties, and benefited you all equally. Now imagine if the association tried to claim that you were "free to leave the association if you move away from the neighborhood, but in that event your property belongs to the association, and so you have to vacate it and leave us the keys." What would your response be to such poppycock? I thought so -- just don't try to tell that to Father Harris, or to any of the others who make up the rules as they go along, instead of sticking to the plain words of the Constitution and Canons.)

So what, exactly, has given Father Harris his indigestion on the eve of a bountiful Thanksgiving dinner? It is this reporting by Father George Conger at his Website of the latest developments in the litigation filed by ECUSA and Bishop Lamb in San Joaquin (the bold has been added by Father Harris):

"In California’s Fifth District Court of Appeal in Fresno, briefs were filed last week in the case of the Episcopal Diocese of San Joaquin v. the Anglican Diocese of San Joaquin. In June a lower court granted summary judgment to the Episcopal diocese in its bid to seize the assets of the Anglican diocese."

Here is Father Harris' criticism of this reporting (with my bold for emphasis):

The reality is that The Episcopal diocese wishes to retrieve (not seize) the assets taken by certain persons who then constituted the Anglican diocese. From the realignment perspective the officers of the Diocese retained those assets rightfully. From the Episcopal Church perspective the departing officers wrongfully took the silver with the[m], or foolishly believed they were entitled to do so. So a more fair-minded writer would have said, "the Episcopal diocese in its dispute with the Anglican diocese over the ownership of certain assets." That does not make as good press as claiming that the Episcopal diocese is out to seize.

With all due respect (as we attorneys are wont to say), Father Harris, you can only "retrieve" something that was yours in the first place. The very use of the word prejudges the pending case by indicating your view of how the court should decide it. "Retrieve", in the context of the San Joaquin litigation, is not a neutral word, and would certainly not qualify for the epithet "fair-minded".

Quick review for the uninformed: California, as does every other State, recognizes what are called "unincorporated associations." They are groups of people who come together for a common purpose, but who do not (for whatever reason) wish to incorporate, that is, form a separate corporation which is recognized as a separate legal person by the State. Instead, an unincorporated association is not a separate entity in the eyes of the law. It is simply an aggregate of its members. For the sake of legal expediency, most States allow associations to sue and be sued in their own name. But a judgment against a corporation can be executed only against the assets held by the corporation, and not against the individual assets of its shareholders.

In contrast, the law allows a judgment against an association which collectively (through its members) has done something wrong, such as maintain a nuisance in the neighborhood (like a cooperative slaughterhouse for the members' livestock, say), to be executed against each member of the association participating in the wrong -- to the full extent of that individual's assets. The reason -- again -- is that the law does not see any kind of separate entity when it deals with an association; it sees only the members which make it up.

Thus in an association, each member retains his/her/its own property. If there is property which belongs "to the association", it is property held by every member as co-tenants, in equal proportions as they acquired it. There is nothing that can be "retrieved", because when you leave an association, you take with you your own property. (And if you have an interest in the common property, you give that up, and allow the other members to go on holding it without you.)

Now, let us add the wrinkle here that the Anglican Diocese of San Joaquin, which up until December 2007 was the Episcopal Diocese of San Joaquin, was an unincorporated religious association of separate parishes which did not own any property as an association. Instead, eight parishes at that time held the title to their own properties in their own names (since they were religious corporations, which -- remember -- could hold title in the name of the corporation). The rest were unincorporated, and so the title to their properties were held for them by the corporate agents of the Diocese formed for that purpose (among others), as I shall explain in a minute.

So that is my first point in reply to Father Harris: there never was any property "held by the Diocese" which he or any other group of Episcopalians could "retrieve".

But the Diocese, you say, must have had money and property -- the bishop's offices, and the Diocesan bank accounts, for example. Who held the title to those? The answer is that they were held by various corporate and trust entities which were agents of the association that was the Diocese. Since it made no practical sense for the Diocese (or for unincorporated parishes and missions) to try to hold any property in their own names, as associations, the Diocese formed certain holding corporations and trusts to hold the legal title for it and for the parishes and missions as agents.

Now, what is an agent? It is somebody whom you appoint, and who agrees to act for you, and in your behalf. And who appoints the agent, again? It is not the Episcopal Church (USA), and it is not the seven parishes who decided to remain with ECUSA when the Diocese voted to realign. The entities holding the diocesan assets were all created and appointed by the Diocese, acting collectively. That Diocese did not pass out of existence just by voting to realign. Its membership remained the same after the vote as it had been before, with the exception of the seven who voted not to realign. Thus, the association had forty-seven parish members before the vote, and forty afterwards.

Are you, Father Harris, now going to say that the seven who dissented are entitled to retrieve the property that belonged to the forty-seven, through their agents? The agents were the agents of the majority, not the minority; and they remained the agents of the majority when it was reduced from forty-seven to forty. The seven were allowed to keep all of their own property, just as would any member of an association be allowed to keep its own property on withdrawing from the association. But they have no legitimate claim to the property held for the benefit of the members who chose to remain in the association.

And that is the conceptual problem here. The seven who chose to remain with ECUSA, and not to realign, did not thereby somehow remain "the association" which was the Diocese that voted to amend its Constitution. That association continued after the vote to amend as it did before, but with a now amended Constitution. The seven who dissented could not, in law, remain that "association." Instead, they formed a brand-new association, with just seven parishes in it.

Let them call themselves what they will, and let the Episcopal Church (USA) recognize them as one of its "dioceses" without their having to be formally admitted by General Convention, as with every other Diocese up until the term of the current Presiding Bishop. The Episcopal Church (USA) and its majority of remaining dioceses can likewise remain the Episcopal Church (USA) -- the four Dioceses that have withdrawn to date make no claim to be "the Episcopal Church". In just the same way, the seven San Joaquin parishes who dissented from the amendments approved by the majority of forty would do well not to claim to be the continuing entity that is the Diocese made up of the forty who voted to realign.

On this Thanksgiving, therefore, I pray that Father Mark Harris and all who think as he does will be led into the way of truth, and see the legal realities on the ground for what they are. An association is just an association; it is not some mystical entity, and calling it a "diocese" may be meaningful for Church canonical purposes -- but in the law, all associations are equal, and obey the same rules. This is a nation of laws, and not a country where some get to make up the rules as they go along to suit their own ends, pace ECUSA and the current Administration. (Temporary victories in the courts may give the wrong impression, and may end up going to one's head.) We would all do well to recognize that fundamental principle, which keeps us together as a nation of law-abiding people.

God bless Father Harris, and God bless all Episcopalians everywhere. Give them the grace to enjoy the things that are truly theirs, and to leave alone the things that never were theirs to begin with. Let them, in short, reprieve, and not retrieve, the property of others; let them cease their attempts to seize.

A Futile Quest for Fees

2009-11-24T10:47:00.000-08:00

Titus OneNine featured earlier this morning the following news item from Long Island:

MINEOLA, N.Y. (CN) - The Episcopal Diocese of Long Island wants law firms to repay the $205,000 in legal fees that "dissident" parishioners allegedly paid out of church coffers after trying unsuccessfully to take over a church. The squabble erupted after the consecration of the church's first openly gay bishop, in 2003.
The Diocese says the dissidents voted to disaffiliate St. James Church of Elmhurst in 2005, then used church money to pay their legal fees as they sought control of the parish's 304-year-old property.
Citing "theological and moral decline," the St. James' dissidents fled the Diocese and affiliated with the Anglican Church of America, according to news reports at the time.
The Jakubik Law Firm and Silber Law Firm represented them in an action seeking control of the church's property, which was held in a trust created in 1871, but a court dismissed their claim in April 2008.
During the legal battle, the dissidents appointed an "unauthorized priest" and formed the St. James Anglican Church, according to the complaint. The Diocese says the dissidents wrote checks against the parish's bank and stock accounts to pay $205,000 in legal fees.
The church and diocese sued Mark Jakubik, Meyer Silber and their law firms, alleging unjust enrichment and conversion. They are represented by Jennifer McLaughlin with Cullen & Dykman of Garden City.

This sparse account does not even begin to tell the full tale. Fortunately, the story in the Courthouse News Service attaches at the end a .pdf version of the actual complaint filed in Nassau County Court against the defendant law firms. From a study of this complaint, many interesting observations are possible.

The first thing to note is that the defendant law firms do not maintain any offices in Nassau County. The Jakubik Law Firm is based in Philadelphia, and the Silber Law Firm has its offices on Broadway in Manhattan. The complaint charges them each with four separate causes of action: (1) money had and received; (2) unjust enrichment; (3) conversion; and (4) "aiding and abetting" conversion.

Let's start with the cause of action for "money had and received". This is what is called a "common count", and is based on the old action at common law known as "assumpsit" (Lat. for "he [the defendant] promised." The most frequent form of this action was based on a simple allegation that the defendant borrowed or received funds which he promised, either in express words or from his implied conduct, to repay.

How can this describe any form of a payment to a law firm for its legal services? It is the client who becomes indebted to the law firm by the rendition of legal services, and not the other way around. What the Diocese of Long Island is saying in its common count is that since the money used to pay the attorneys was actually held in trust for it under the Dennis Canon, the attorneys should not have treated it as theirs when they got it, but instead as a form of "stolen goods." But if the attorneys believed that at the time they got the money, they had no business representing their clients, and should just have advised them to throw in the towel. The validity of the Dennis Canon and its diocesan equivalent was very much in contention while the lawsuit was going on -- it was the pivot around which the whole lawsuit turned.

Let's look at the second cause of action, for "unjust enrichment." If the Post Office by mistake delivers to me a package intended for you, and I keep it instead of handing it over to you, I have been unjustly enriched at your expense. "Unjust enrichment" is the legal equivalent of an unmerited windfall, to which you have no right. That again hardly describes (I hope) the amounts which lawyers receive for their services. Saying that the payments to them were undeserved is alleging that their services were really of no value -- but again, if that were truly the case, the lawyers had no business rendering any legal services in the first instance. So I do not see this claim succeeding, either.

The third cause of action alleges the tort of conversion. If, again, I take something that belongs to you and convert it to my own purposes, I have committed the wrong of conversion, for which the law provides damages in the amount of the value of the thing converted. Even assuming that one could make a claim that the money in the hands of St. James Parish was held in trust for the Diocese, however, when was that money converted from such trust purposes? It should be obvious to any person of sense that the conversion occurred when the money was allocated to the payment of legal expenses by writing a check to the law firms which had a signatory on it which the bank in question was bound to honor. The check became payable to the law firms at that moment. Their later act of depositing the check in their own accounts for collection did not constitute the act of conversion, because the check constituted an order to the Parish's bank to pay the attorneys. The conversion, if any occurred, therefore occurred when that order was given, and not when the bank carried it out. The Diocese has sued the wrong defendants on its claim of conversion -- as it all but admits outright by its next cause of action. It should have gone after the people who wrote the checks.

That final cause of action, as already noted, is for "aiding and abetting" the act of conversion that has been claimed. In saying that the defendant law firms only aided and abetted the conversion, the Diocese is pleading that the actual act was done by someone else -- the "unnamed co-conspirator" -- namely, the officer of the Parish who was authorized to, and who did, sign the checks. But that person was "aided and abetted" in the writing of the checks by, if anyone, the persons who approved the lawyers' bills for payment, and the persons who ordered the legal services in the first instance. Nothing the attorneys did could be seen as contributing in any fashion to the giving of the order for payment to the bank -- that could be done only by authorized officers of the Parish. So once again, it looks as though the Diocese is barking up the wrong tree.

(I am also unclear how one can be liable for "aiding and abetting" under New York civil law. The tort consists not in the aiding and abetting, but in the tort itself which the aiders and abetters help commit. So that would just bring one back to the main claim for conversion -- for which, as explained above, I cannot see how the attorneys could be held liable.)

The complaint thus presents considerable hurdles which must be overcome if it is to succeed. And another big hurdle is obtaining personal jurisdiction over the Philadelphia defendant in Nassau County in New York. For the Supreme Court of Nassau County to exercise jurisdiction over a lawyer from Philadelphia, the attorney would have to have committed some tort in Nassau County. The checks paying for his legal services, however, were presumably all sent to his offices in Philadelphia, and any actions his office took to cash them -- even if those were the actions which might make the law firm liable -- would have occurred in the State of Pennsylvania, and not the State of New York. (The Manhattan law firm may be reached by the courts of New York, but there would probably be a problem of venue. I do not know New York civil procedure, but it may be that a claim of a tort occurring in Manhattan would have to be brought in that county, and not in Nassau County.)

One has to ask, therefore, what the Diocese of Long Island hopes to gain by this complaint. It is not as though the Dennis Canon were a matter of public record, so that the Parish bank accounts were titled all along as having been "in trust for the Diocese of Long Island." Remember that the Dennis Canon expressly places no limits on the parish's power to deal with its own property while it remains a part of the Episcopal Church. It can use funds to buy a new organ, or to operate a mission in Africa, and the Diocese can have nothing to say about it.

And that points up another deficiency in the complaint: it does not say when the funds were disbursed. It alleges that the attorneys were initially retained by the Parish "in or about March 2005" -- but that the lawsuit to declare its property free and clear was not filed until the following October. If some or all of the money was paid in advance to the attorneys before the Parish actually withdrew from the Diocese (the vote is alleged to have taken place on March 30, 2005), then the Diocese should have gone after the money while it was still in the attorneys' trust accounts, and before it was earned by the rendering of services. Under the express terms of the Dennis Canon, as mentioned, there were no restrictions of any kind on how the Parish could spend its funds before it voted to leave.

Even after the vote to leave was taken, what would be the status of money taken in as regular Sunday offerings and parish pledges? Once the vote to leave occurred, the Parish ceased to be a member of the Episcopal Church -- at least that is the claim which triggers the operation of the reversion of the property to the Diocese under the Dennis Canon. So if the Diocese asserts its rights under the Canon by saying the Parish left, it cannot also say that the money the Parish is collecting continues to belong to it.

Notwithstanding such logic, the Diocese appears in the present complaint to say that the Parish never really left. It alleges in paragraph 16:

Under the rules and canons of the Episcopal Church and its various dioceses, neither the Parish nor any other Episcopal parish may unilaterally disaffiliate from its diocese or the Episcopal Church upon a vote of its current vestry or membership.

However, if the Parish never left, then the Dennis Canon never was triggered! It purports to shift the beneficial ownership of the property, according to its terms, only when the Parish in question ceases to "remain[] a part of, and subject to, this Church and its Constitution and Canons." Thus the Diocese cannot have it both ways: either the Parish never left, in which case "the existence of this trust, however, . . . in no way limit[ed] the power and authority of the Parish . . . otherwise existing over [its] property", or else the Parish did leave, in order for the Diocese now to claim that there were thereafter limits on how the Parish could use its property acquired before it left. And I cannot see any legal argument by which the terms of the Dennis Canon could reach property acquired by a parish after it leaves and is no longer subject either to ECUSA or its Dennis Canon.

Thus I foresee troubles with the Diocese of Long Island getting anywhere with this lawsuit as currently asserted. It is noteworthy, in that regard, that Bishop Lamb and his group, who filed a similar claim in the San Joaquin litigation against the law firm retained by Bishop Schofield and his diocese, have now seen fit to drop it altogether. Not only did the claim face an uphill battle, for the same reasons discussed above, but it threatened to interfere with Bishop Lamb's ability to make use of the summary adjudication ruling he obtained from the trial court on an earlier version of the complaint -- before the one adding the law firm was filed.

It is far too easy to file suit these days and then think it through afterward. People who live in the Diocese of Long Island should be questioning their bishop and his staff about the wisdom of the use of scarce diocesan funds to mount this questionable foray against people who were just doing their job as the attorneys for their clients.

Things that Incense

2009-11-23T06:28:00.000-08:00

[CAUTION: I took the following post, as indicated below, in its entirety from the Oikonomika Blog, a site to which I refer regularly for news about the economy and the dollar/gold crisis. However, an alert reader has pointed out to me that the newsletter author cited, "Enrico Orlandini", appears to be a pseudonym for Eric Bartoli, who is wanted in the U.S. for having allegedly bilked a lot of people in a Ponzi-like scheme. If that is the case, take what appears below with the usual grain of salt -- or it may even be a case of "it takes one to know one." And please note, also, that the "March of this year" refers to March 2008, not March 2009, since Lehman filed for bankruptcy, and Bank of America announced its acquisition of Merrill Lynch, in September 2008.]

Here's a very enlightening excerpt from Enrico Orlandini's weekly missive, "Dow Theory Analysis", regarding the credit crisis:

"..For those of you who haven’t figured it out yet, the credit crisis and resulting bail outs had nothing to do with concern for the general public.

Two ex-Goldman Sachs men, the Treasury Secretary Henry Paulson and then President of the New York Federal Reserve Bank Timmy Geithner, got together and figured out a way to consolidate Goldman’s power and rid them of the competition at the same time.

They waited until early March of this year when things looked dismal and, in a blaze of cell phone calls between Geithner and Goldman (twenty-one in one day) it was decided that Lehman Brothers and Merrill would disappear, and Goldman would take over the lucrative parts of their business. Bear Stearns was already gone, so Goldman would be the power house and Morgan would get a bone or two thrown its way.

The failure of Lehman was the key though, as it forced Congress to commit to TARP money that would eventually fill Goldman’s coffers. Lehman drew the short stick even though they all were more or less equally leveraged.

Both the Fed and Treasury now clear everything through Goldman, allowing them to make trading profits on 89 out of 92 days in the third quarter, a phenomenal accomplishment to say the least. You, of course, paid for all of this, you have little or no knowledge of it, and you’re not going to receive a single benefit. Your taxes will be raised, you may lose your job, the currency you earn is worth less every day, and they may come and foreclose on your house. How do you like them apples?.."

H/T: Oikonomika Blog

Mike Watson Shines Light into ECUSA's Dark Corners

2009-11-21T08:38:00.000-08:00

My friend and colleague Mike Watson has been making signal contributions to the debate over the wisdom and appropriateness of the current litigation strategy being pursued by the Presiding Bishop. Two months ago he published a scholarly study at the Anglican Communion Institute which took the Presiding Bishop head on with regard to her claim to be litigating every case of departure from the Church in obedience to her "fiduciary duty". He questioned at the outset whether she was even the correct person within the Episcopal Church (USA) to exercise the responsibility she claimed, and observed tellingly:

One thing to note at the outset is that fiduciary duties do not require an individual within an organization to do something that the individual is not authorized to do. To the contrary, one of the duties of a person in the Presiding Bishop’s position is to take action only within the scope of her actual authority.

He went on to examine in great detail the scope of that authority, and presented convincing textual arguments from both the Constitution and the Canons that the Presiding Bishop had never been given the authority to commence lawsuits on behalf of the voluntary association of dioceses which is the Episcopal Church (USA). Here is his key point (I have omitted his footnotes in all the quotations that follow):

TEC is not a corporation but an unincorporated voluntary association. (The identity of TEC as a voluntary unincorporated association and how that characteristic fits into a broader analysis of TEC’s polity is discussed in more detail in Mark McCall’s paper “Is the Episcopal Church Hierarchical?”) For an unincorporated association, there is no statutory framework conferring on a board of directors or other body the power and authority to manage the association’s affairs. Instead, when the managerial roles are not performed by the associating parties themselves (in TEC’s case the member dioceses), the primary relationship defining those managerial rules is that between principal and agent. The scope of duties and authority of those acting on behalf of the association is determined by the law of agency, as supplemented by the association’s internal rules. Agency is the relationship that arises when one person (a “principal”) authorizes another person (an “agent”) to act on the principal’s behalf and subject to the principal’s control. In the case of TEC, the persons who act in a managerial capacity and therefore act as agents include members of the Executive Council, the Presiding Bishop, TEC’s various other officers and the members of its other committees and boards. From a legal perspective, they function as agents of the members of the unincorporated association (the dioceses), or to the extent the unincorporated association is recognized as an entity itself, agents of the association. Although it would be possible for TEC to restructure itself so that the role of the Executive Council approximates that of a corporate board, to do so would require changes to TEC’s Constitution and Canons or conversion to another form of entity, neither of which has been done. As TEC is now structured, the board of directors analogy does not provide a way around the necessity to identify specific sources for the authority of the Executive Council.

The point is that General Convention, as the legislative agent for the member Dioceses, has never expressly voted to authorize the Presiding Bishop to decide just what litigation to institute on behalf of the entire Church. Instead, the authorization (such as it is) consists of its approval of an overall budget containing a line item for legal expenses. As I discussed in this earlier post, that line item, which began as a perfectly legitimate budgeting of money for disciplinary proceedings against bishops under Title IV, has under Presiding Bishop Jefferts Schori mushroomed out of control, to the point where the Executive Council, and not General Convention, retroactively has to increase by manyfold the amount which General Convention originally authorized. Not once has General Convention itself ever voted to approve the actual amounts which the Church is currently spending on litigation in the state courts.

Mike Watson goes on to point out that the Church ignores the procedural rules applicable to voluntary associations, in particular in its suit in intervention filed against the Diocese of Pittsburgh:

A question related to authorization concerns the “capacity” of an unincorporated association to sue on behalf of its members. The common law rule is that an unincorporated association does not have the capacity to sue or be sued, so that the parties to any litigation would have to include all the individual members of the association. In many jurisdictions, the common law rule has been varied by statute. For example the Uniform Unincorporated Nonprofit Association Act, adopted in about a dozen states, provides that a nonprofit unincorporated association may initiate, defend and otherwise participate in litigation and other proceedings in its own name. Other states specify particular procedures necessary for an unincorporated association to bring suit in its own name. For example, in Pennsylvania, there is a rule of procedure requiring suits by an association to be prosecuted in the name of one or more members appointed as trustees ad litem. Thus in the current Pittsburgh litigation, TEC’s pleadings have been filed on [its] behalf [by] the Right Reverend John C. Buchanan, said to be acting as Trustee ad litem. Bishop Buchanan does not, however, appear to fulfill the requirement of the rule that a trustee ad litem be a member of the association.

Not only is Bishop Buchanan not a member of the voluntary association of dioceses, but there is currently no single member Diocese of ECUSA which could be said to be an appropriate agent to file suit in Pittsburgh as a trustee ad litem on its behalf. ECUSA's wishful dream that the members of its voluntary association are nevertheless involuntarily required to remain perpetually in its thrall is about to be blown sky-high in the courts of Texas and California. The entity currently calling itself "the Episcopal Diocese of Pittsburgh" has never been admitted to General Convention as a full-fledged Diocese, so it cannot serve in that role any more than Bishop Buchanan can.

As Mike Watson's paper goes on to demonstrate in detail, there no restriction upon a Diocese's withdrawal from the voluntary association that is ECUSA, and there is also no warrant in law for its claim that the diocesan deputies who vote for departure are automatically disqualified from serving further as deputies by the language of Canon I.17.8 (which applies only to lay persons appointed to office within ECUSA itself, and not to positions created and filled by the respective dioceses and their parishes, such as deputies to diocesan conventions):

The first problem with this approach is that it purports to apply to offices not only within TEC as such, but also within dioceses, other diocesan entities and even congregations. At least as to positions other than clerical positions to which TEC’s disciplinary canons apply, it would create conflicts with provisions covering removal from office under the other entities’ governing instruments and applicable state law. Second, the automatic vacancy approach attempts to turn standards of conduct into mere qualification requirements (implying an objective standard such as qualification requirements typically entail) and then substitute an automatic removal mechanism for the normal procedures for adjudication of whether standards of conduct have been violated. The automatic vacancy mechanism asserted is, as to violations of the Declaration of Conformity, inconsistent with TEC’s own canons which would require presentment and trial under Title IV. The alleged mechanism for creating automatic vacancies based on violation of Canon I.17.8 not only has no basis in existing canons, but would go even further than a once-proposed canonical amendment withdrawn by its proposers in the face of opposition. Specifically, a January 2008 proposal for discipline of laity for noncompliance with canon I.17.8, put forward by the Title IV Task Force II on Disciplinary Policies and Procedures, was later withdrawn by the Task Force in view of “extensive objections as being overreaching and unnecessary.” Not even the withdrawn Task Force proposal would have operated automatically as the Presiding Bishop’s litigators would have it, but would have required action by the Ecclesiastical Authority, with the advice and consent of the Standing Committee, following an opportunity for the accused to be heard by the Ecclesiastical Authority on the grounds for removal.

Mike Watson concluded his ACI paper with further observations about the inappropriate arguments ECUSA's Presiding Bishop was making in the courts with regard to the Dennis Canon, and in seeking universal deference to the "hierarchy" which her Chancellor maintains that ECUSA itself represents. By undermining the authority of the individual Dioceses themselves, and by subordinating them to an abstract entity which the Presiding Bishop alone controls, the Presiding Bishop is actually betraying her fiduciary duties to the Dioceses she claims to be leading, and acting contrary to their best interests.

Now there is a new article by Mike Watson in The Living Church, entitled "'Handmaidens of Arbitrary Lawlessness' - A Critique and a Plea for Restraint." Like his earlier article at the Anglican Communion Institute, this one is well worth your careful attention. It is a wide-ranging survey of the victories -- and losses -- which the Church has garnered as a result of its aggressive litigation strategy to date. He sums up and recapitulates much of his argument in the ACI paper, but also adds a new dimension. He asks how the bishops in ECUSA can be claiming to divine the donors' intent to which they assert they are being "faithful":

If these are meant to be moral arguments — and Bishop Jefferts Schori uses the word moral — they are founded on an empirical premise. How would one go about determining donor intent? Are Bishops Gulick and Jefferts Schori in a better position to determine it than, for example, Bishop Iker and the majority of the Fort Worth diocese that voted to leave? As [Professor Kurt] Greenawalt writes: “Do local church members mean to adhere to hierarchical decisions in … altered conditions, rather than to the principles prevailing when they decided to join, or to local officials who refuse to follow the hierarchy? No confident generalization can capture what highly diverse local members have in mind.” And he continues, in an especially pertinent passage for our current circumstances:

Perhaps donors of property or large sums of money have more attachment to a central denomination than the average parishioner, but one can hardly assume that loyalty is to the general denomination, regardless of how doctrines shift, procedures are observed, or foreign political influences are brought to bear. And, as Michael Galligan has urged, “[s]ome churches resemble a federation of autonomous groups rather than a totally integrated entity. Even when a church is essentially hierarchical, agreements of union between specific churches and the central body may modify the amount of power granted church authorities.” Any notion that loyalty would be to the general church in all circumstances is a fiction about the wishes of donors and contributors grounded upon the division of all church government into two rigid boxes.
Because we don’t know specifics about donor intent in most cases, a neutral principles approach properly carried out won’t make assumptions about donor intent that aren’t reflected in relevant documents in a legally effective way. Moreover, since most local donors do not give subject to an explicit restriction that favors the national denominational organization, the suggestion that such restrictions nonetheless exist de facto in all cases raises a question of disclosure: “Why weren’t we told this when we made the contributions?” One answer might be, “Everyone knows this is a hierarchical denomination.” But to say there is a hierarchy does not describe its structure and to what substantive areas its authority extends; nor, again, have sweeping assertions regarding the existence of a putative three-tiered hierarchy in TEC been demonstrated from its constitution and canons.

Once again, the claims of "hierarchy" which ECUSA's leadership is making in the various courts are completely at odds with the interests of the Dioceses themselves. Not only do the claims of a national hierarchy over the Dioceses run counter to what the Constitution and Canons actually provide, but they are in the end futile and self-defeating as well. The reason is simple, and Mike Watson adverted to it in his first paper: as an unincorporated association at common law, ECUSA is incapable of holding title to real property. (Remember that it had to organize the New York corporation known as the Domestic and Foreign Missionary Society in order to receive gifts of money and real estate.)

Although an unincorporated association may be the beneficiary of a religious charitable trust, it is again only the members of that association, or its duly authorized officers, who can be recognized in court as capable of enforcing the terms of the trust for the benefit of the association as a whole. Thus when "ECUSA" as an entity claims to join in a lawsuit brought against a departing parish by the Diocese which that parish left, it adds nothing to the claims already being asserted by the Diocese on behalf of the whole church. Presiding Bishop Griswold, for all his other faults, at least got this one right: litigation over church property is a matter for the individual dioceses to handle, and the national Church has no business mingling in.

Mike Watson's most recent article concludes on a note of hope that there might be a sea change occurring in the House of Bishops, and that its members might be starting to realize just how much damage is being done to their authority by the positions being taken by the Presiding Bishop in the name of the whole Church. I am skeptical, since there does not appear to my curmudgeonly view to be a more meek collection of invertebrates anywhere than in the assembled House of Bishops (there are of course a few exceptions, but they serve only to prove the general rule). The House does not meet again until next March, and by then we should have some written decisions from the courts in both Texas and California which establish the legal right of any Diocese to withdraw from a voluntary association of co-equal Dioceses. Perhaps those decisions will serve as a catalyst for the assembled bishops to reign in their overweening colleague. As I say, I am skeptical; but I salute Mike Watson for encouraging the process, and for his salutary additions to the overall dialogue.

Friday TED Talk: Jonathan Haidt on the Moral Roots of Social Conflict

2009-11-20T07:51:00.000-08:00

Jonathan Haidt is a psychologist who studies the moral underpinnings of the ongoing debate between (social/political) liberals and conservatives. In this talk he identifies five moral values which form the basis of our social and political choices, whether we are left, right, or center. He then demonstrates the surprising correlations among those values which define the preferences of liberals versus those of conservatives. (After you watch the talk, I will show you how you can participate in his research by taking a survey of your own place on the spectrum.)

Haidt's hope is that by understanding how our moral roots evolved, and why they evolved as they did, we can learn to be more civil in our discourse, and understanding of the passions that drive us all. As he sums up, "our Righteous Minds were 'designed' to (a) unite us into teams; (b) divide us against other teams; and (c) blind us to the truth." I find what he has to say especially fascinating in light of the "Manhattan Declaration" being introduced today.

You may take Jonathan Haidt's quizzes (there are quite a few) to determine your own moral spectrum at this link. (You will need to register, but that will then allow the site to retain your scores to compare when you revisit to take more quizzes, or to compare with family and friends. Privacy is guaranteed.) He also has a site called "Civil Politics", where he urges us to practice what he preaches; and you may read here an interview in which he applies his ideas to the current healthcare debate. There is more about him here, with links to the books he has written, as well as to his pages at the University of Virginia, where you will find a concise summary of the ideas he espouses in the talk shown above. You may download the talk from this page.

Insanity at the Topmost Level

2009-11-19T07:16:00.000-08:00

The decision by Attorney General Eric Holder -- approved by President Obama -- to try Khalid Sheikh Mohammed and four other 9/11 plotters in a federal district court in Manhattan on criminal charges reflects no less than blindness to consequences at the topmost level. Proceeding with a decision in blindness to its consequences is a form of insanity. "Whom the Gods will destroy, they first make mad."

Under our system of criminal laws, all persons arrested for a crime have certain constitutional rights. Specifically, they do not have to answer any questions the authorities may put to them (the "right to remain silent"), and they may demand that they have an attorney present to help them (the "right to counsel") -- and if they cannot afford an attorney, the State will provide them with one at its expense. Not only do persons charged with crime have these constitutional rights, but the Supreme Court decided that they must be told of their rights as soon as they have been arrested -- the "Miranda warnings" must be given. (A local attorney here -- a former D.A. who also owned a quality printing press -- made a small fortune in the years just after the Miranda decision by printing and distributing to police departments nationwide small cards with the warnings on them, which the police could carry in their wallets or shirt pockets.)

If a person arrested for a crime is not given the Miranda warnings, the Supreme Court has ruled that any evidence gained from his subsequent interrogation will be inadmissible in a court of law. Not only will any confession be excluded, but so will any evidence of guilt discovered as a result of facts revealed in any statement or confession taken by the police -- such evidence becomes "fruit of the poisoned tree".

Thus let us look at the case against Khalid Sheikh Mohammed and his confederates. He was initially detained by the Pakistanis in 2003, and then handed over to the CIA, which spent the next three years grilling him for his knowledge about 9/11. Do you imagine that he was once read his "Miranda rights", or allowed to have an attorney, during that time period? For Mr. Holder and his prosecutors to decide that they have enough evidence of his guilt to proceed against him in federal court must mean that they acquired independent proof from sources wholly unconnected with those revealed during his prolonged interrogation. They will carry the burden of proof on that point in federal court, and will be required to demonstrate, by revealing all their sources in detail, how none of them could have been derived from the information provided by KSM and his confederates. Just the very proof of such independent sources, alone and by itself, will provide the terrorist world with an information bonanza, which they otherwise never could have had if KSM and his cohorts were tried before the military commissions authorized by Congress exactly for that reason.

(Of course, it was when Mr. Holder was in private practice that his law firm of Covington & Burling provided pro bono legal defense to eighteen Guantanamo detainees. The firm challenged the constitutionality of the military commissions, and managed to stymie the Bush Administration's use of them until just the final months of President Bush's second term. It is only consistent that Mr. Holder would now seek to undermine them altogether.)

This is such insanity! Watch in the video below how Mr. Holder squirms and tries to avoid admitting these consequences under questioning from (of all people) Senator Lindsay Graham:

When questioned about an assumed failure to give Osama bin Laden the Miranda warnings, Mr. Holder says it will not matter, because the evidence of his guilt is "overwhelming". Perhaps, but that is no way to run a railroad -- or a government engaged in a war against terrorists. Do not think for a split second that the Supreme Court will approve of denying a criminal his Miranda rights because the evidence of his guilt is "overwhelming." The Court will simply rule that the criminal cannot be prosecuted in any court, and must be set free. It has no other means of giving the police an incentive to require them to follow the dictates of Miranda in every single case.

Thus the decision to prosecute KSM and four other terrorists as ordinary criminals has monumental consequences for the conduct of the war on terror. Even if our armed forces were to capture Osama bin Laden tomorrow, they would not be able to question him. They would have to provide him with an attorney, who would advise him to remain silent throughout any interrogation. [UPDATE 11/19/2009: No sooner do I post this than we receive confirmation that the lunacy at the top now extends to the Chairman of the Judiciary Committee, Senator Patrick Leahey (D-Vt.). In an interview, he tries to defend Mr. Holder's claim that we would not need to worry about having to give bin Laden his Miranda warnings, because "we've [got] enough on him, we don't need to interrogate him."]

Making the war on terror into a war on crime is not a rational decision. It is a refusal to trace the consequences. It is, in short, madness. We can but pray that it is not the kind of madness that precedes our destruction.

Appellate Court Stays Proceedings in Ft. Worth

2009-11-16T19:27:00.000-08:00

The Court of Appeals for the Second District in Fort Worth, Texas has issued an order staying all further proceedings in the trial court in Tarrant County between Bishop Edward Gulick's rump "diocese" of Fort Worth and ECUSA, on the one side, and Bishop Jack L. Iker and his co-trustees of the Diocesan Corporation of Fort Worth on the other side. The order (which has been posted at the Diocese's Website) comes in response to a petition for writ of mandate filed by Bishop Iker's attorneys (copy also downloadable from the previous link), following the order signed by Judge Chupp after the oral arguments I described in this post, followed by this post, and then this one. Although by no means a definitive indication of the Court of Appeal's sentiments in this matter, the order recites the following basis for its issuance:

The court has considered relators' [Bishop Iker et al.] petition for writ of mandamus and motion for stay and is of the tentative opinion that relators are entitled to relief or that a serious question concerning the relief requires further consideration.

This cannot be good news for the ECUSA forces. If you recall, they have been trying the "Potemkin Plan" strategy in the trial court, with only moderate success thus far. Under the Presiding Bishop's Potemkin Plan ("PBPP" -- outlined in detail in the first post linked earlier), the way to deal with a Diocese which has voted to realign itself within the Anglican Communion is to assert that it did so illegally, that its actions were ultra vires and void, and that it accordingly never left the Church. You call a "Special Convention" of the remnant as quickly possible, at which you dispense with all constitutional requirements for notice, call and a quorum of clergy and lay delegates from the respective parishes. You ram through a slate of new officers and trustees, and "confirm" a puppet bishop whose principal function is to bring a lawsuit to recover all the assets of the departed Diocese.

In this case, Bishop Gulick of Kentucky was confirmed as the "Provisional Bishop of the Potemkin Diocese", and he thereby became, in ECUSA's fantasy world, ex officio a trustee of the Corporation of the Diocese of Fort Worth. Since all of the previously duly elected trustees of that Corporation had departed with the Diocese, Bishop Gulick then conveniently declares that the remaining seats are now "vacant", and uses his powers under the bylaws to appoint interim trustees previously selected for him at the Special Convention. These new trustees next proceed to file amendments to the corporate articles and bylaws of the Diocesan Corporation which proclaim themselves the incumbents (and adopt provisions to indemnify them in case it should turn out that they are not the incumbents). Then, purporting to act on behalf of the Corporation, they (and ECUSA) hire counsel to file suits against Bishop Iker and his co-trustees to declare them ousted and no longer in control of the Corporation. (Since the Corporation is the legal entity which holds title to all of the assets and bank accounts of the Diocese, Bishop Gulick and his cohorts in this manner plan to lay claim to the whole kit and kaboodle.)

This strategy unfortunately failed to take into account the legal savvy of Bishop Iker's counsel, J. Shelby Sharpe of the firm of Sharpe Tillman & Melton in Fort Worth, and the attorneys from the firm of Andrews Kurth LLP (as co-counsel). Mr. Sharpe promptly filed a motion under Rule 12 of the Texas Rules of Civil Procedure, which challenged the authority of the attorneys hired by Bishop Gulick to file suit in the name of the Diocese of Fort Worth and its Corporation. The attorneys in question -- Jonathan D. F. Nelson and Kathleen Wells -- had to show to the trial court that they were duly and properly hired to act for those two entities by people who were properly in charge of them.

You see, both the Diocese of Fort Worth (an unincorporated association of parishes under Texas law) and its related Corporation were organized in 1983. Five trustees of the Corporation had been elected to staggered five-year terms at each one of the preceding five annual Diocesan Conventions up until the one held in November 2008, and they, along with Bishop Iker, constituted the full Board of the Corporation going into 2009.

But as we have seen, Bishop Gulick declared the seats of the five "vacant" in February 2009, and filled them with the five people nominated for that purpose at the illegally called "Special Convention" in February 2009. Then those new five, along with Bishop Gulick, hired Mr. Nelson and Ms. Wells, and instructed them to bring the current lawsuit in the name of the Corporation and the Diocese affiliated with it.

The problem was that Bishop Iker and his co-trustees considered themselves still fully the Board of the Corporation, and they did not hire Mr. Nelson or Ms. Wells, or instruct them to file suit in the Corporation's (and the Diocese's) name. Thus by challenging their authority to do so, Bishop Iker's attorneys put directly into issue the legality of the procedures used to create the Potemkin "diocese" and to elect new officers for the Diocesan Corporation.

When confronted with this conflict, newly appointed Jude John Chupp of Tarrant County District Court in Fort Worth ruled, Solomon-like, that

Upon conclusion of the hearing, the Court finds that the attorneys cited to appear have not discharged their burden of proof that they were hired by individuals holding positions at the time of the hiring within The Episcopal Diocese of Fort Worth and The Corporation of The Episcopal Diocese of Fort Worth that are associated with Bishop Iker.

IT IS THEREFORE ORDERED that Jonathan D. F. Nelson and Kathleen Wells are barred from appearing in this suit as attorneys for The Episcopal Diocese of Fort Worth and The Corporation of the Episcopal Diocese of Fort Worth that is associated with Bishop Iker.

However, Judge Chupp struck language from the proposed order which also would have stricken the complaint and other pleadings filed by Mr. Nelson and Ms. Wells in the name of the Corporation and the Diocese which he had barred them from representing. This was so even though those pleadings had plainly alleged that the Corporation and the Diocese in whose name they had been filed were the ones started in 1983 -- which still had Bishop Iker and his co-trustees representing them.

So on the one hand, we had the Judge telling Mr. Nelson and Ms. Wells that they could not represent the Corporation and the Diocese "associated with Bishop Iker", which Corporation and Diocese were the only such entities begun in 1983, and yet leaving on file the pleadings which they had filed on behalf of those same 1983 entities.

This played right into the hands of the ECUSA Potemkin Plan, by allowing Bishop Gulick and his followers to maintain their theory that the 1983 entities had never validly departed from the Church, and that they were now the ones legally in control of those entities. Except -- except that Judge Chupp had ruled that there was a Diocese and a Corporation which was legally associated with Bishop Iker; and if the entities which were associated with Bishop Iker were not the ones formed in 1983, then where did they come from, and when were they legally created?

That anomaly created the basis for the petition filed by J. Shelby Sharpe and his co-counsel -- -- in particular, Scott A. Brister, who recently returned to practice after retiring from the Texas Supreme Court -- with the Second District Court of Appeal. Based on the order quoted, it would appear that the two Justices issuing the order were struck by the same anomaly.

Thus now we shall be treated to an explanation in writing from Mr. Nelson and Ms. Wells of how they can claim to represent two entities legally created in 1983, and still governed by Bishop Iker and his co-trustees, when they have been barred from representing those entities. For there cannot be two sets of Dioceses and Corporations created in 1983, since under the genius of the Potemkin Plan, the old entities are pressed into service as having never left, and so no new ones are created (in order to be consistent with the claim of never having left). When the fact of the Diocese having voted to leave is shown, the claim is made that the vote was illegal under the ECUSA Constitution and Canons -- even though Mr. Nelson admitted at the hearing below there was no language in those documents making the vote illegal. (See the quotation given in this earlier post.)

Instead, he said, "the courts have held that they [the Dioceses] cannot leave" -- when no court anywhere to date has said any such thing. The "courts" to which he was referring were all courts which had held that particular parishes could not leave the Diocese to which they had sworn eternal subordination.

This is, therefore, precisely the same question as is currently before the Fifth District Court of Appeal in the San Joaquin litigation, as I have briefed in several earlier posts. And since the same question is now before two different Courts of Appeal in two different States, we should have some very illuminating rulings with regard to the Potemkin Plan very soon.

As I noted in an earlier post, 815's day of reckoning slowly but inexorably approaches.

A Deal That ECUSA Cannot Refuse

2009-11-14T00:03:00.000-08:00

The law must mean nothing any more. Up is down; black is white; and all property of Episcopal parishes everywhere is now the "property of the Episcopal Church." Consider this quote, taken word for word from a press statement issued by the Diocese of San Diego after yet one more California trial court judge ruled that he was not interested in the facts or considering the parties' different versions of them, and that he would give the victory to the Episcopal Church (USA) as a matter of law (emphasis added):

“This decision reaffirms the principle that the property of an Episcopal congregation must be used to further the mission and ministry of the Episcopal Church,” said Baker & McKenzie partner, Charles H. Dick, Chancellor of the Diocese and its attorney in the property litigations. “People should be free to leave the Episcopal Church if they wish, but they cannot take the property of the Episcopal Church with them when they depart.”

Consider the anomaly behind the words "the property of the Episcopal Church." It is like speaking of "the property of the association of all people on Facebook" -- the expression is utterly and totally meaningless. There is no property of any kind which belongs to the Episcopal Church (USA). The Episcopal Church (USA) has never owned any property since it was first established in 1789. As an unincorporated association of individual dioceses which was organized at common law, and not under the law of any one State, it cannot hold title to any property of any kind, because the common law does not recognize an association as a separate legal entity. Like the collection of people who have joined Facebook, it is just a group (of other groups called "dioceses"), and is not any one person in the eyes of the law.

The Episcopal Church (USA) thus has no property, can claim title to no property, and cannot even legally call so much as a pencil its own. (It has its DFMS to do that on its behalf -- and believe me, the DFMS also pays for each and every pencil used by ECUSA, because it holds title to all the Church's bank accounts. Unlike ECUSA, the DFMS is a corporation, which the law recognizes as a separate person, and which therefore can take title to real and personal property.)

The legal mind that can allow the words "property of the Episcopal Church" even to be uttered thereby shows all that is wrong with our legal system today, and why we keep getting rulings which are ever more worse and worse from the courts. For over two thousand years now, the system of laws established by the Romans, and taken up and adapted locally by each Western country ever since, has never recognized a voluntary association of people or things as a separate legal entity, or "person", on its own -- it is the modern uniform codes of laws which have finally changed the common law, and declared that associations organized in accordance with their provisions may sue and be sued, and hold title to property, in their own name. (Nothing in those laws provides any cover for associations never organized under the laws of any State to begin with. Just as a State which does not recognize common-law marriage is not required to treat people as married who live together in it for seven or more years, so a State is not required to recognize as a single legal entity a group of people who came together long ago at common law.)

But when the people associated on Facebook decide to acquire, say, a bicycle, or a book, or something else for their common good and enjoyment, they had better have rules already agreed upon among themselves which spell out which of them actually gets to ride the bicycle or read the book when, which is responsible for replacing the bicycle or book if it is stolen or damaged, and which of them can go into court on behalf of the whole group if necessary to reclaim the group's common property. The Episcopal Church (USA) has no such rules -- and for good reason, as I say, because it has never owned any property of its own, and so has not needed to have any such rules.

So please, is it too much to ask of lawyers that they not debase the law, and make people think it means something else when it does not? When there is a perfectly good reason why the Episcopal Church (USA) has never owned any property of any kind since it began 220 years ago, how does it advance public understanding of the actual issues involved to assert that "no one can take the property of the Episcopal Church with them when they depart"?

I tell you what: let every withdrawing parish offer the Episcopal Church (USA) a terrific deal. The parish should offer to return to ECUSA its property in exchange for ECUSA agreeing that the parish can have the parish's property. That way everyone can end up with what is properly theirs, and there will be no need for any further lawsuits. Problem solved!

Hans Rosling: Let My Dataset Change Your Mindset

2009-11-13T07:31:00.000-08:00

Hans Rosling, the Swedish public heath professor who presents innovatively displayed data like a sports announcer, gave a talk this past summer to an audience of personnel at the U. S. State Department -- which he says should change its name: "You are not the State Department; you are the World Department." Here is a video of that talk. Prepare to have your mindset about us vs. them -- developed world vs. developing world -- transformed:

You may watch the talk in high-res video here, and download it in that and other formats from this page. There is a brief bio of Dr. Rosling, with more links, at this page.

The Cost of an Incoherent Strategy Just Went Up

2009-11-11T14:14:00.000-08:00

Now there is a new downside to ECUSA's take-no-prisoners strategy of driving congregations from their churches and then letting them sit vacant (rather than allow them to be sold to, or rented by, the congregation which was forced out): in Pennsylvania, at least, county assessors have begun to remove the property tax exemptions on church properties that sit vacant. The article explains that the impact will be felt most by Catholic dioceses:

Although this applies to any religion, the impact would essentially be felt by the Diocese of Scranton, which has already started implementing a plan to close some schools and half of the 90 churches in Luzerne County.

[County Assessment Director] Alu said he recently learned that several other counties already started taxing closed churches and religious schools, maintaining that their closure no longer qualifies them for tax-exempt status.

It might seem that this would be a counter-productive strategy for the counties -- demand that properties which are generating no income start paying their share of local taxes -- but in reality, it is better for all in the long run. By making vacant properties more expensive to retain, it forces churches to order their priorities: do they want to use their hard-won donations and tithes from parishioners to further their religious mission, or do they just want to pay for the privilege of being a dog in the manger? And why should a church escape contribution to the cost of local services for property for which it has no current use?

I am not informed as to whether an impending property tax assessment is the reason that St. Mark's in Philadelphia decided, after holding the property for three years, to have a summer vacation Bible school at the beautiful and historic, but very vacant, church of St. James the Less (see previous link). And now I learn from St. Mark's latest newsletter that they are holding "work days" at the church in preparation for repainting the interior. I hope that all of this is a precursor to a plan to make such a beautiful place of worship once again ring with music, psalms, sermons and prayers.

But it has taken three years. At least now there will be no reward for doing nothing. And the cost of ECUSA's litigation strategy just went up another notch.

It is also worth noting that apart from paying its own attorneys and subsidizing a few rump dioceses, ECUSA contributes nothing of its own funds toward the long-term costs of its strategy, which are borne by the Dioceses and the parishes that remain in them. When a Diocese takes over a vacant church property, the funds required to maintain it (and now pay property taxes on it) have to come from the rest of the parishes in that Diocese. Thus in commanding that suits be brought to recover the properties from departing congregations, the Presiding Bishop claims to be acting as a "faithful steward" of property entrusted long ago to the Church. But that is empty rhetoric. The burden of her "stewardship", as always, falls on the regular pewsitters -- of whom there are, each year, fewer and fewer.

The market for vacant church buildings has to be even more depressed than the one for single-family residences. Can there be any doubt that the Presiding Bishop is being penny-wise and pound-foolish in pushing her litigation strategy? Unless new numbers of churchgoers are recruited to replace those driven out, simple mathematics tells us that the pro-rata cost of the strategy will go up among those who remain. That is a recipe for increased disaffection, and increased departures from the Church.

I put up a post recently about how no one, paradoxically, seems to be in charge as the country's monetary system lurches toward disaster. The same seems to be true of ECUSA, as it slouches toward bankruptcy -- of both the temporal and the spiritual kind.

Now, THIS Is a Hierarchical Church

2009-11-09T16:59:00.000-08:00

The Vatican's publication of the much-awaited Apostolic Constitution creating personal ordinariates for Anglicans wishing to realign with Rome shows how things are done in a truly hierarchical Church. No folderol about Cardinals, Congregations, etc., or even concerns about how this might affect the decrees issued by previous Popes -- or even this Pope. (Check out the last clause -- "even those requiring special mention or derogation".)

No, there is a definitive bull, issued by just one person, which immediately is recognized by everyone throughout the entire Catholic Church. Rather makes a mockery of the supposed "hierarchy" of ECUSA, doesn't it?

Here is the full text, and note the reference to "the society structured with hierarchical organs" in the third paragraph. (When the Pope says it, everyone knows he means it, and has the authority to back it up; but when the Presiding Bishop and her Chancellor say it, they have to go to a secular court to obtain a judgment first, and borrow its authority to enforce their claim. And in doing so, they have to misrepresent the history and polity of ECUSA. That's some hierarchy!)

BENEDICT XVI

APOSTOLIC CONSTITUTION ANGLICANORUM COETIBUS

PROVIDING FOR PERSONAL ORDINARIATES FOR ANGLICANS
ENTERING INTO FULL COMMUNION
WITH THE CATHOLIC CHURCH

In recent times the Holy Spirit has moved groups of Anglicans to petition repeatedly and insistently to be received into full Catholic communion individually as well as corporately. The Apostolic See has responded favorably to such petitions. Indeed, the successor of Peter, mandated by the Lord Jesus to guarantee the unity of the episcopate and to preside over and safeguard the universal communion of all the Churches,[1] could not fail to make available the means necessary to bring this holy desire to realization.

The Church, a people gathered into the unity of the Father, the Son and the Holy Spirit,[2] was instituted by our Lord Jesus Christ, as “a sacrament – a sign and instrument, that is, of communion with God and of unity among all people.”[3] Every division among the baptized in Jesus Christ wounds that which the Church is and that for which the Church exists; in fact, “such division openly contradicts the will of Christ, scandalizes the world, and damages that most holy cause, the preaching the Gospel to every creature.”[4] Precisely for this reason, before shedding his blood for the salvation of the world, the Lord Jesus prayed to the Father for the unity of his disciples.[5]

It is the Holy Spirit, the principle of unity, which establishes the Church as a communion.[6] He is the principle of the unity of the faithful in the teaching of the Apostles, in the breaking of the bread and in prayer.[7] The Church, however, analogous to the mystery of the Incarnate Word, is not only an invisible spiritual communion, but is also visible;[8] in fact, “the society structured with hierarchical organs and the Mystical Body of Christ, the visible society and the spiritual community, the earthly Church and the Church endowed with heavenly riches, are not to be thought of as two realities. On the contrary, they form one complex reality formed from a two-fold element, human and divine.”[9] The communion of the baptized in the teaching of the Apostles and in the breaking of the eucharistic bread is visibly manifested in the bonds of the profession of the faith in its entirety, of the celebration of all of the sacraments instituted by Christ, and of the governance of the College of Bishops united with its head, the Roman Pontiff.[10]

This single Church of Christ, which we profess in the Creed as one, holy, catholic and apostolic “subsists in the Catholic Church, which is governed by the successor of Peter and by the Bishops in communion with him. Nevertheless, many elements of sanctification and of truth are found outside her visible confines. Since these are gifts properly belonging to the Church of Christ, they are forces impelling towards Catholic unity.”[11]

In the light of these ecclesiological principles, this Apostolic Constitution provides the general normative structure for regulating the institution and life of Personal Ordinariates for those Anglican faithful who desire to enter into the full communion of the Catholic Church in a corporate manner. This Constitution is completed by Complementary Norms issued by the Apostolic See.

I. §1 Personal Ordinariates for Anglicans entering into full communion with the Catholic Church are erected by the Congregation for the Doctrine of the Faith within the confines of the territorial boundaries of a particular Conference of Bishops in consultation with that same Conference.

§2 Within the territory of a particular Conference of Bishops, one or more Ordinariates may be erected as needed.

§3 Each Ordinariate possesses public juridic personality by the law itself (ipso iure); it is juridically comparable to a diocese.[12]

§4 The Ordinariate is composed of lay faithful, clerics and members of Institutes of Consecrated Life and Societies of Apostolic Life, originally belonging to the Anglican Communion and now in full communion with the Catholic Church, or those who receive the Sacraments of Initiation within the jurisdiction of the Ordinariate.

§5 The Catechism of the Catholic Church is the authoritative expression of the Catholic faith professed by members of the Ordinariate.

II. The Personal Ordinariate is governed according to the norms of universal law and the present Apostolic Constitution and is subject to the Congregation for the Doctrine of the Faith, and the other Dicasteries of the Roman Curia in accordance with their competencies. It is also governed by the Complementary Norms as well as any other specific Norms given for each Ordinariate.

III. Without excluding liturgical celebrations according to the Roman Rite, the Ordinariate has the faculty to celebrate the Holy Eucharist and the other Sacraments, the Liturgy of the Hours and other liturgical celebrations according to the liturgical books proper to the Anglican tradition, which have been approved by the Holy See, so as to maintain the liturgical, spiritual and pastoral traditions of the Anglican Communion within the Catholic Church, as a precious gift nourishing the faith of the members of the Ordinariate and as a treasure to be shared.

IV. IV. A Personal Ordinariate is entrusted to the pastoral care of an Ordinary appointed by the Roman Pontiff.

V. V. The power (potestas) of the Ordinary is:

a. ordinary: connected by the law itself to the office entrusted to him by the Roman Pontiff, for both the internal forum and external forum;

b. vicarious: exercised in the name of the Roman Pontiff;

c. personal: exercised over all who belong to the Ordinariate;

This power is to be exercised jointly with that of the local Diocesan Bishop, in those cases provided for in the Complementary Norms.

VI. § 1. Those who ministered as Anglican deacons, priests, or bishops, and who fulfill the requisites established by canon law[13] and are not impeded by irregularities or other impediments[14] may be accepted by the Ordinary as candidates for Holy Orders in the Catholic Church. In the case of married ministers, the norms established in the Encyclical Letter of Pope Paul VI Sacerdotalis coelibatus, n. 42[15] and in the Statement In June[16] are to be observed. Unmarried ministers must submit to the norm of clerical celibacy of CIC can. 277, §1.

§ 2. The Ordinary, in full observance of the discipline of celibate clergy in the Latin Church, as a rule (pro regula) will admit only celibate men to the order of presbyter. He may also petition the Roman Pontiff, as a derogation from can. 277, §1, for the admission of married men to the order of presbyter on a case by case basis, according to objective criteria approved by the Holy See.

§ 3. Incardination of clerics will be regulated according to the norms of canon law.

§ 4. Priests incardinated into an Ordinariate, who constitute the presbyterate of the Ordinariate, are also to cultivate bonds of unity with the presbyterate of the Diocese in which they exercise their ministry. They should promote common pastoral and charitable initiatives and activities, which can be the object of agreements between the Ordinary and the local Diocesan Bishop.

§ 5. Candidates for Holy Orders in an Ordinariate should be prepared alongside other seminarians, especially in the areas of doctrinal and pastoral formation. In order to address the particular needs of seminarians of the Ordinariate and formation in Anglican patrimony, the Ordinary may also establish seminary programs or houses of formation which would relate to existing Catholic faculties of theology.

VII. The Ordinary, with the approval of the Holy See, can erect new Institutes of Consecrated Life and Societies of Apostolic Life, with the right to call their members to Holy Orders, according to the norms of canon law. Institutes of Consecrated Life originating in the Anglican Communion and entering into full communion with the Catholic Church may also be placed under his jurisdiction by mutual consent.

VIII. § 1. The Ordinary, according to the norm of law, after having heard the opinion of the Diocesan Bishop of the place, may erect, with the consent of the Holy See, personal parishes for the faithful who belong to the Ordinariate.

§ 2. Pastors of the Ordinariate enjoy all the rights and are held to all the obligations established in the Code of Canon Law and, in cases established by the Complementary Norms, such rights and obligations are to be exercised in mutual pastoral assistance together with the pastors of the local Diocese where the personal parish of the Ordinariate has been established.

IX. Both the lay faithful as well as members of Institutes of Consecrated Life and Societies of Apostolic Life, originally part of the Anglican Communion, who wish to enter the Personal Ordinariate, must manifest this desire in writing.

X. § 1. The Ordinary is aided in his governance by a Governing Council with its own statutes approved by the Ordinary and confirmed by the Holy See.[17]

§ 2. The Governing Council, presided over by the Ordinary, is composed of at least six priests. It exercises the functions specified in the Code of Canon Law for the Presbyteral Council and the College of Consultors, as well as those areas specified in the Complementary Norms.

§ 3. The Ordinary is to establish a Finance Council according to the norms established by the Code of Canon Law which will exercise the duties specified therein.[18]

§ 4. In order to provide for the consultation of the faithful, a Pastoral Council is to be constituted in the Ordinariate.[19]

XI. Every five years the Ordinary is required to come to Rome for an ad limina Apostolorum visit and present to the Roman Pontiff, through the Congregation for the Doctrine of the Faith and in consultation with the Congregation for Bishops and the Congregation for the Evangelization of Peoples, a report on the status of the Ordinariate.

XII. For judicial cases, the competent tribunal is that of the Diocese in which one of the parties is domiciled, unless the Ordinariate has constituted its own tribunal, in which case the tribunal of second instance is the one designated by the Ordinariate and approved by the Holy See.

XIII. The Decree establishing an Ordinariate will determine the location of the See and, if appropriate, the principal church.

We desire that our dispositions and norms be valid and effective now and in the future, notwithstanding, should it be necessary, the Apostolic Constitutions and ordinances issued by our predecessors, or any other prescriptions, even those requiring special mention or derogation.

Given in Rome, at St. Peter’s, on November 4, 2009, the Memorial of St. Charles Borromeo.

[1] Cf. Second Vatican Council, Dogmatic Constitution Lumen gentium, 23; Congregation for the Doctrine of the Faith, Letter Communionis notio, 12; 13.

[2] Cf. Dogmatic Constitution Lumen gentium, 4; Decree Unitatis redintegratio, 2.

[3] Dogmatic Constitution Lumen gentium, 1.

[4] Decree Unitatis redintegratio, 1.

[5] Cf. Jn 17:20-21; Decree Unitatis redintegratio, 2.

[6] Cf. Dogmatic Constitution Lumen gentium, 13.

[7] Cf. ibid; Acts 2:42.

[8] Cf. Dogmatic Constitution Lumen gentium, 8; Letter Communionis notio, 4.

[9] Dogmatic Constitution Lumen gentium, 8.

[10] Cf. CIC, can. 205; Dogmatic Constitution Lumen gentium, 13; 14; 21; 22; Decree Unitatis redintegratio, 2; 3; 4; 15; 20; Decree Christus Dominus, 4; Decree Ad gentes, 22.

[11] Dogmatic Constitution Lumen gentium, 8.

[12] Cf. John Paul II, Ap. Const. Spirituali militium curae, 21 April 1986, I § 1.

[13] Cf. CIC, cann. 1026-1032.

[14] Cf. CIC, cann. 1040-1049.

[15] Cf. AAS 59 (1967) 674.

[16] Cf. Congregation for the Doctrine of the Faith, Statement of 1 April 1981, in Enchiridion Vaticanum 7, 1213.

[17] Cf. CIC, cann. 495-502.

[18] Cf. CIC, cann. 492-494.

[19] Cf. CIC, can. 511.

© Copyright 2009 - Libreria Editrice Vaticana

Putting It All Together

2009-11-07T08:04:00.000-08:00

[Nota bene: Having researched this post for months, I pondered long and hard about whether to put it up. I did not like where its logic was taking me, but the logic is inescapable. (Take your time, and follow all the links below; together, they tell the tale.) Then a loyal reader sent me this "open letter" made famous by Glenn Beck, and I decided, thanks to that author's plainspokenness, that there needs to be more of laying things out openly for all to see, and less of pretending that things are going along just fine. To tell the truth, there are no two ways about it. This will be either a post to which we may return again for its prescience, or one that we can all laugh about in ten years. For all our sakes, and not my own, I hope and pray it will be the latter.]

These are seemingly isolated events, reports and essays published, all within the last nine months:

Government admits it actually committed more than six times what Congress authorized it to commit of our tax dollars in the TARP legislation -- $4.3 trillion laid on the line, rather than $700 billion. Inescapable conclusion: no one is in charge. Each branch of government now does whatever it deems necessary or advisable on its own, regardless of the other branches. Checks and balances have all but vanished.
Wall Street is back to business as usual, where "bonuses" are part of every employee's base pay.
The financial sector as a whole has seen its earnings nearly triple, from an average 16% of total business profits during 1973-1985 to a high of 41% in the current decade. Compensation in the financial sector as a percentage of average U.S. compensation likewise grew phenomenally, from between 99%-108% of the average all during 1948-1982, to 181% of the average in 2007 (the latest year for which statistics are available).
The monetary base has reached stratospheric heights where the Fed has never been before.
The dollar is sinking against other currencies (the headline "Dollar Sinks to Low for Year" keeps having to be repeated, as it establishes ever lower lows). The Fed is keeping interest rates low in an attempt to prevent the dollar from rising, because the Administration (foolishly) believes a cheap dollar will stimulate our exports, by making them less expensive to foreigners.
But the banks, flush with government funds lent to them at near-zero rates, find it more profitable to lend the money back to the government at a nice profit than to lend it to the private sector amid such economic uncertainty. Consequently, there is little new investment, and no permanent growth in infrastructure that creates real wealth. Instead, all the growth being lately reported is -- you guessed it -- the result of increased lending to (borrowing / spending by) the government! (Think "Cash for Clunkers", at a cost to taxpayers of $24,000 per new vehicle sold.)
Other countries, seeing the value of their dollar holdings diminish with each passing week, are talking about establishing a new reserve currency to replace the dollar.
And a socialist economist connected with a new think tank being put together by George Soros publishes an essay called "Death Cometh for the Greenback", which argues that a different reserve currency already exists, in the form of Special Drawing Rights (SDRs), managed by the International Monetary Fund (IMF). He points out that the IMF needs only to secure the agreement to a Bretton-Woods-II type of arrangement to implement such a plan.

Can anything be concluded from these various happenings? Is there a common thread among them?

I submit that there is a common thread, and that it has to do with the inherent risks and disconnections from risk that accompany an economy based on nothing more solid than fiat (paper) money. The only thing that has held the system together since the first Bretton Woods agreement is the restraint of the United States in printing paper dollars. When that restraint was first relaxed, the United States was forced by the amount of paper money it had created to close down the gold window in 1971, making the dollar a completely fiat currency for the first time. With the irrational panic ensuing after last year's threatened collapse of the whole house of cards, even the last vestiges of restraint on the creation of more and more fiat money have now entirely disappeared.

What little restraint remained has been thrown to the winds of political megalomania, which conceives that simply by printing ever more and more money, the economy will eventually take heart and recover. In the meantime, however, the only sector which recovers is the financial one -- because it gets to play with all that money, and receive compensation for playing. Washington sends the money (in the form of bailouts and guarantees) to Wall Street, which takes its cut and then ships the money back to Washington for another round. Meanwhile, precious little money is making its way to Main Street (which is why inflation has not grown to be serious yet).

The printing of money to pay for political schemes has always had a side benefit for the politicians who dream up the schemes, and who pitch them to the unsuspecting public as programs for reform. (Let us remember that the much touted Stimulus Bill, rushed through a Congress which did not read it, and now proven an utter failure, was given the official title of "the American Recovery and Reinvestment Act of 2009.") The bills are now so long and complex that no one reads them before voting to pass them, and no one person knows all that is in any bill. The process allows politicians to stick in many little hidden rewards to the special interests represented by the faithful lobbyists. Those specially benefited reward the politicians by returning generous contributions to their political campaigns.

And so the vicious circle goes round and round. Certain sectors receive special handouts and rewards, which do nothing to stimulate the economy as a whole, because there is no overall coordination, but only a stuffing of the particular hands which offer to pay something back so the politicians can get re-elected. Then the politicians come to the "rescue" of the wrecked economy yet one more time, and vote more rewards and special handouts, and on and on. We truly have, and have had now for a long time before Mark Twain ever said it, "the finest government that money can buy."

But the game has to come to a crashing end once the printing presses are made to run without stopping. For the cycle feeds on itself. The more that is handed out, the more that is paid back to the politicians, and the more they are in hock to meet ever higher demands as the economy continues to sink. Think of the old fairy tale of the magic porridge pot: the image of the entire village being drowned in a sea of never-ending porridge is a perfect analogy to our current economy awash in paper dollars. Or, to use another image from fable, the sorcerer (the one who can bring things under control) is away, and the apprentices are in charge.

The chief apprentice, by the name of Ben Bernanke, assures us that all will be well, and that when the time comes he will magically be able to suck back in all those dollars that are floating around the economy before inflation takes over. But the talk of a new reserve currency demonstrates that Mr. Bernanke's promise is an empty one. Once the dollar stops being the world's preferred medium of exchange, not even Mr. Bernanke's figuratively cavernous vaults will be able to accept back all the dollars that people will be trying to dump in a flight to a more sound currency. The inflation that most people are anticipating is the slow, insidiously building kind, which the Fed admittedly has tools to fight. No one seems to be preparing, however, for how to handle the consequences of the dollar losing its reserve status when so many dollars are being printed. If raising interest rates or reserve requirements at that point does manage to curb runaway inflation, it will do so only at the cost of an economic collapse that is even worse than the current one.

All of this was explained long ago, by the Austrian economists -- chiefly Ludwig von Mises. Here is a concise summary of his business cycle theory, written back in 2001, but every bit as true as if it had been written yesterday:

Business cycle theories are legion and they come and go. But the only explanation that has stood the test of time was first advanced in 1912, in Ludwig von Mises’s masterwork, The Theory of Money and Credit. Elaborations on the theory, by Mises and his student Hayek in the 1930s, culminated in the Austrian theory of the trade cycle.

The theory begins by observing the profound effect that interest rates have on investment decisions. Left to the market, interest rates are determined by the supply of credit (a mirror of the savings rate) and the willingness to take risks in the market (a mirror of the return on capital). What throws this out of whack is manipulation by the central bank.

When the Fed feeds artificial credit into the economy by lowering interest rates, it spurs investments in projects that don’t eventually pan out. In this economic boom, the high-tech and dot com manias resulted from a decade of sustained money growth via lower interest rates. When the Fed stepped on the brakes to prevent prices from rising, it prompted a sell-off, and hence a downturn.

What’s tricky to understand is what can’t be seen. Just because prices aren’t going up doesn’t mean the money supply is in check. Just because people in some sectors are getting rich doesn’t mean that the prosperity is on solid ground. Just because the stock market is going up doesn’t mean that the architecture of investment (to use Jim Grant’s phrase) is in good working order.

This is not rocket science, and we can be sure that as a trained economist and financier, Ben Bernanke knows all this perfectly well. So what is behind the charade he is currently running? Let's review the basic facts one more time:

1. The monetary base is expanding beyond all limits, into unknown territory, while the Fed is lending money to banks at 0.25% interest or less.

2. Unemployment -- even the government's artificially limited "official" figures -- is headed into territory not seen since the Great Depression.

3. The value of the dollar is steadily sinking with respect to other currencies, giving rise to plans to replace it as a reserve currency.

4. The price of gold in dollars is as high as it ever has been historically, and is headed still higher.

The conclusions follow as does night the day. Fewer and fewer people are gainfully employed, and those who do have jobs are working for less and less in terms of real value. Those who have the ability to do so already demand ever more and more in terms of compensation, and pretty soon those who manufacture goods will be forced to start doing so as well. A massive inflation is inevitable, and cannot be stopped. The only question is when enough people will recognize that it has begun, and whether the result will be runaway inflation, as occured in Germany in 1923.

Remember: runaway inflation is possible only with fiat currency. Having a currency backed by gold acts as a natural brake on the printing of paper money -- print too much, and people will choose to hold gold, making the currency worthless. (It is the same phenomenon we are observing now in the gold futures market -- there are signs of a time coming when no amount of paper dollars will convince a person to part with any gold. As the article just linked puts it succinctly: "Gold is not available at any price quoted in Zimbabwe dollars.") Some people -- especially economists since Keynes -- think that the brake works too well, and keeps the economy from growing, as well as producing panics when there is not enough money to go around. But would you rather be riding in a car with some brakes than one with no brakes at all?

Why, then, would President Obama, Timothy Geithner and Ben Bernanke allow us to continue down the present path, when the place where it is taking us is so readily foreseeable? One has to ask that question, but that does not mean one can discover the actual answer. None of the possible answers, however, is comforting. (I reject, for the reasons already given, the possibility that the three of them are acting out of ignorance; it may be out of overconfidence that they can keep the lid on the situation, perhaps, but not ignorance. As I say, however, neither of those possibilities offers any comfort.)

One more possible answer is those SDRs from the IMF. As Mr. Stiglitz acknowledges toward the end of his essay, the United States is currently allocated the largest share of new issues under its rules. So perhaps the government expects still to run the show, with or without the dollar.

But SDRs are useless for purchasing groceries. Here at home we will be stuck with our paper dollars, until the world's bankers manage to propose a uniform currency which all major countries will agree to accept. Even Mr. Stiglitz does not see a world currency any time soon -- although the collapse of the U.S. economy, followed by chaos around the world as it tries to dump dollars, might hasten the time when it becomes a reality.

And note that a switch to a different world reserve currency, such as SDRs, would still keep the world on a paper money standard, where the money supply would still depend on the integrity of central bankers. (Is that an oxymoron? No, their integrity may in fact exist, but whether it does is irrelevant in the final analysis, because central bankers, as we see in the case of Mr. Bernanke, are ultimately no match against the tide of political forces that make prudent monetary policy impossible. And if you think those forces are unmanageable now, just wait until the whole world's economy is tied to one fiat currency.)

As I pointed out earlier, fiat money gave us Weimar Germany in 1923, and also Zimbabwe in 2007; there are a lot more examples in this Wikipedia article. No historical precedent for runaway inflation should ever again make one willing to go through the upheavals it brings. Unless--

Unless you were elected president with a hidden radical agenda (based on principles taught by your idol, a man with the name of Saul Alinsky), which you knew in advance would not be popular, and which might result in your serving only a single term. If, however, a general crash were to occur well before the next election, you might just conceive that with everyone on the bread lines, looking to the government for assistance, and with the economy in shambles (as it was in 1936), voters will not dare to think of switching horses midstream -- just as they did not do with Franklin Roosevelt. (As an added plus, you could always blame the crash on the failed policies of your predecessor.)

Then, just wait -- just wait until they see what's in store for them in your second term. But by then it will be too late.

A Religion of Peace, and a Gospel of Inclusion

2009-11-06T11:59:00.000-08:00

We are living in strange times. Black is said to be white, and white is proclaimed black, and the objective reality is lost in the scramble by each to charge the other with falsehood or bias.

The "religion of peace" makes more headlines these days than even the Catholic Church:

Al Qaeda publishes a circular on its favored Websites which urges Muslim jihadists everywhere to attack "simple targets", including "crusaders" (i.e., Westerners, whose countries are attempting the re-occupation of Muslim lands), with readily available weapons and explosives: get the Stratfor article (fascinating, but published only for subscribers) by email, free, from this link.

Not one week after Al Qaeda's urging jihadists everwhere to take up arms to maintain the purity of Islam, we get this: Fort Hood Muslim psychiatrist (see also this report) who admires suicide bombers guns down 12, and wounds 31. (One of the critically wounded has since died, so the tally is now 13 dead and 30 wounded.)

Earlier, a namesake of the Fort Hood terrorist murdered (fragged) two fellow officers.

Earlier still, an Islamic terrorist gunned down three people at the El-Al counter at the Los Angeles International Airport.

And just after that attack, a man calling himself John Allen Muhammad and his sidekick, Lee Malvo, terrorized the Washington D.C. area with sniper attacks that killed ten people and critically wounded another three. Their arrest prevented their plan to recruit more jihadists and train them in Canada for a mass attack they believed would bring down the Great Satan -- America. (Muhammad's execution is scheduled for next Tuesday, according to the link just given.)

And the attacks by Muslims against Christians are increasing to a level not seen before in modern times.

Meanwhile, the people who demand that they be included are all for exclusion:

Lesbian manager gets Christian employee fired for expressing his beliefs in response to her persistent attempts to have him acknowledge her upcoming "marriage".

Gay activists at Bowdoin College attempt to prevent Christian scholar from speaking on campus.

President Obama signs "hate crimes" bill which is loose enough to allow prosecution of people who express opinions opposing pedophelia.

Proponents of California's Proposition 8, which restored the State's ban on equating same-sex civil unions with its historical definition of marriage (even though there is no other legal distinction between the two) have been harassed and fired for their stances, and a suit forcing government to make their names and addresses public, so that they can be picketed and further harassed, is now making its way through the courts.

And yet, here is the paradox: Muslims in Nigeria and Uganda are behind legislation that would impose severe penalties (up to death) on persons who are gay. And whom do the gays target for their outrage at such an act? The Christians, who are not driving the process. As Archbishop Henry Orombi noted specifically on the subject of anti-gay legislation at the press conference after GAFCON:

There’s very little influence to stop the legislation of a law, an institute, in practice by the church. The church’s practice is to preach, to proclaim... And that is in Uganda as already Archbishop Akinola is saying.

So let me get this straight (sorry -- no pun intended, but the LGBTs pretty much own the terminology). If I am an Anglican in America, I am expected to adapt my beliefs to the current culture in which I find myself, which allows "marriage" between persons of the same sex.

But if I am an Anglican in Africa, and I oppose same-sex relations because that is part of my culture, inherited as a taboo through the centuries, that cultural conceit is entitled to no respect whatsoever. Culture counts in the former case, but not in the latter. And notice who gets to make that call.

Go figure.

Ian Goldin: What Will the World Be Like in 2030?

2009-11-06T06:41:00.000-08:00

In just seven packed minutes, Professor Ian Goldin of Oxford's 21st Century School (founded by British technology guru James Martin) sums up the experts' consensus about the forces that are driving change today, and which are converging so fast that the world will look completely different by 2030. He backs up his analysis with a lot of fascinating charts and animations, so I recommend watching this talk in its high-res version if you have the software (Windows Media or Apple Quicktime) required:

You may read more about Ian Goldin here; see also this page. The high-res version of his talk, along with other formats, may be downloaded from this page.

Can a Diocese Leave ECUSA? Squaring Off in San Joaquin

2009-11-05T09:51:00.000-08:00

In the first post in this series dealing with the writ proceedings in the Fifth District Court of Appeal involving Bishop Lamb's and ECUSA's lawsuit against Bishop Schofield, I quoted the sections of Bishop Schofield's opening brief which introduced the matter and laid out the petitioners' (Bishop Schofield and the entities he heads) theory of the case. In this post I shall quote from the sworn allegations made in the petition itself, together with the sworn responses made by Bishop Lamb et al. That way, you can best see how the issues have been joined. In what follows, the purple text is from the Petition filed by Bishop Schofield and his attorneys; the red text is from the Return filed by Bishop Lamb and his attorneys. These are indeed critical to the case, so let those who wish to understand the issues involved "read, mark and inwardly digest':

2. Petitioner The Rt. Rev. John-David Schofield is the bishop of the Diocese of San Joaquin, a California unincorporated association, that withdrew from membership in the Episcopal Church on December 8, 2007. The remaining petitioners, The Episcopal Foundation of San Joaquin, Inc., The Diocesan Investment Trust of the Diocese of San Joaquin, and the Anglican Diocese Holding Corporation are auxiliary entities created and governed by the Canons of the Diocese to hold title to its real and personal property together with property belonging to some of its parishes and missions. Petitioners are the defendants in an action now pending in Respondent Court entitled Diocese of San Joaquin, et al. v. David Mercer Schofield, etc., et al., Fresno Superior Court Case No. 08 CECa 01425 AMC. Plaintiffs are named as the real parties in interest.

2. Plaintiffs deny the allegations in paragraph 2 that David Schofield is the "bishop of the Diocese of San Joaquin" and that the Diocese "withdrew from membership in the Episcopal Church on December 8,2007." Plaintiffs deny that the Anglican Diocese Holding Corporation is authorized to hold the property of the Diocese of San Joaquin. Plaintiffs admit the remaining allegations.

Chronology of Pertinent Events
The Diocese of San Joaquin

3. The Diocese of San Joaquin was, from 1961 to December 2007, one of the dioceses of the Episcopal Church, a constituent member of the worldwide Anglican Communion. The members of the Diocese were the local Episcopal churches (called "parishes" or "missions") located in fourteen Central Valley counties of California. The Diocese was, and continues to be, an unincorporated association governed by California Corporations Code section 18000 et seq., and by its "Constitution" and "Canons" (akin to bylaws). The highest legislative body of the Diocese is its Annual Convention.

3. Plaintiffs deny the allegation in paragraph 3 that the Diocese was a diocese of the Church "from 1961 to December 2007," because the Diocese remains a diocese of the Church. Plaintiffs deny the allegation that "[t]he highest legislative body of the Diocese is its Annual Convention" to the extent that it implies that the Church's General Convention lacks authority over the Diocese. Plaintiffs deny that the Diocese is subject to Corp. Code, § 18000 et seq., without regard to the rules of the Church and the Diocese and other relevant authority.

4. 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 member church of the worldwide Anglican Communion which offered the Diocese spiritual protection on an "emergency and pastoral basis" so that it "may continue in the mainstream of the Anglican Communion and be faithful to its Biblical and historic teaching and witness; .... "

4. Plaintiffs deny the allegations in paragraph 4 to the extent that they imply that the Diocese can revoke its accession to the Constitution and canons of the Church and the authority of the Church's General Convention. Plaintiffs deny that the December 8, 2007, vote of the Diocesan Convention was valid or had any effect on the Diocese of San Joaquin's status as a diocese of the Church. Plaintiffs deny that the relationship between the Church and the Diocese was or is merely a "spiritual affiliation." Plaintiffs lack information sufficient to permit them to admit or deny the remaining allegations.

5. At the 2007 Annual Convention, the members of the Diocese expressed their will to disaffiliate from the Episcopal Church by voting overwhelmingly to amend their Constitution to delete the language whereby the Diocese had previously "acceded" to the Episcopal Church Constitution, and to remove limits on its physical boundaries ("the 2007 amendments"). The vote met all canonical requirements for notice, quorum and passage by a super-majority in each of the clerical and lay orders. Prior to the vote, Bishop Schofield announced to the delegates that he would abide by whatever Convention decided with regard to withdrawing from the Episcopal Church; Bishop Schofield did not cast a vote.

5. Plaintiffs deny the allegations in paragraph 5 to the extent that they imply that the Diocese can revoke its accession to the Constitution and canons of the Church and the authority of the Church's General Convention. Plaintiffs deny that the December 8, 2007, vote of the Diocesan Convention was valid or had any effect on the Diocese's status as a diocese of the Church. Plaintiffs admit that the majority of the members present at the 2007 meeting of the Diocesan Convention purported to adopt certain amendments to the Diocese's Constitution and canons, but deny that those actions were valid or effective. Plaintiffs lack information sufficient to permit them to admit or deny the remaining allegations.

6. The language of the Diocese's Constitution reserved to it the unqualified right to make this amendment and nothing in the Constitution and Canons of the Episcopal Church forbade or restricted the Diocese from taking this action. Specifically, the Constitution and Canons of the Episcopal Church contain no language manifesting supremacy, subordination, exclusivity, preemption or finality over the actions of a member diocese.

6. Plaintiffs deny the allegations in paragraph 6.

7. Following the vote at the Diocese's Annual Convention in December 2007, each parish was given the choice to stay with the Episcopal Church along with permission to keep all of its own real and personal property. The vast majority of the Diocese's forty-seven parishes and missions followed it out of the Episcopal Church and into affiliation with the Anglican Province of the Southern Cone. However, seven parishes chose to remain with the Episcopal Church. They were permitted to leave and take their property with them with the blessings of the Diocese and its bishop, The Rt. Rev. John-David Schofield. The Diocese of San Joaquin is the first diocese to leave the Episcopal Church since the Civil War, when nine dioceses departed to form an independent church in the Southern states.

7. Plaintiffs deny the allegations in paragraph 7.

That is a remarkable denial. ECUSA and Bishop Lamb are denying that any parishes left (since they want to reclaim them once they have defeated Bishop Schofield), but they also deny that any parishes stayed and were allowed to keep their property. In the world of Bishop Lamb, his "Diocese" remains exactly as it was under Bishop Schofield, with all the same parishes, missions and congregations (just not the same clergy, since he claims to have deposed 65 of them). Note also that ECUSA denies that any Dioceses left it during the Civil War.

8. Three months after the Diocese voted to disaffiliate, the small minority of stay-behind parishes, in concert with the Presiding Bishop of the Episcopal Church, purported to conduct, without any call or notice given in accordance with the Diocese's requirements, a separate "Special Diocesan Convention" where a "re-vote" was taken to reverse the democratic vote of the majority and to install new leaders, including a new provisional bishop. The group also purported to designate that bishop as the incumbent of the Diocese's corporation sole in place of Bishop Schofield, even though it did not, as the minority, have any control over the corporation sole. In addition, at the "Special Diocesan Convention" the minority claimed the authority not to create a new diocese of their own, but to nullify all the amendments adopted the majority in annual conventions since 2003, and to continue as the "Diocese of San Joaquin" itself.

8. Plaintiffs admit the allegation in paragraph 8 that the Diocesan Convention held a Special Meeting in order to select new Diocesan leadership after defendant Schofield and his followers left the Church. Plaintiffs deny the remaining allegations.

9. None of these actions taken by the minority, including the election of a new diocesan bishop, complied with the call, notice, quorum, election or amendment requirements of the Diocese's Constitution and Canons. In addition, these actions did not comport with the Constitution and Canons of the Episcopal Church. Neither General Convention nor the Presiding Bishop elected by General Convention is given authority to act within a diocese to control its decisions. Further, there is no ecclesiastical body within the Episcopal Church which has been given authority over the actions of a diocese.

9. Plaintiffs deny the allegations in paragraph 9.

Again, Bishop Lamb and ECUSA have to make these denials. As I discussed in detail in this earlier post, their failure to follow the notice and quorum requirements of San Joaquin's Constitution invalidates everything they did to elect Bishop Lamb and authorize him to file the present lawsuit.

10. Following the "Special Diocesan Convention" held by the minority, the new diocesan bishop filed papers with the California Secretary of State purportedly installing himself as the incumbent of the Diocese's corporation sole (Corp. Code, § 10010), renaming the corporation and instituting other material changes. The object of this self-help enterprise was to seize the entity that holds title to the Diocese's real property as well as the property held in trust for some, but not all, of the disaffiliating parishes.

10. Plaintiffs admit that on April 9, 2008, the Rt. Rev. Jerry Lamb caused to be filed with the Secretary of State corrected Articles of Incorporation of the Corporation Sole, which Articles are in the Record, the contents of which speak for themselves. Plaintiffs deny Petitioners' characterization of those Articles. Plaintiffs deny the remaining allegations in paragraph 10.

11. Thereafter, on April 24, 2008, the minority and its leader, Bishop Lamb, caused the action below to be filed in the name of the "Diocese" and its corporation sole even though they have no authority or standing to act for either of these entities. The Episcopal Church, presenting itself as an unincorporated association of dioceses, joined in the action as a plaintiff.

11. Plaintiffs admit the allegation in paragraph 11 that Plaintiffs filed this action. Plaintiffs deny that the Church filed this action "as an unincorporated association of dioceses." Plaintiffs deny the remaining allegations.

Another remarkable denial: “that the Church filed this action ‘as an unincorporated association of dioceses.’” This denial goes to the heart of the matter before the Court of Appeal. In each version of the complaints they filed below, ECUSA began with this sentence: “Plaintiff Episcopal Church . . . is an unincorporated association headquartered in New York, New York.” The next sentence alleges: “It is a religious denomination, comprising 111 geographically-defined, subordinate entities known as ‘dioceses’ . . .”

In the metaphysics of 815's megalomania, when 111 independent dioceses join together in an unincorporated association at common law (the Church began in 1789, without organizing under a charter or the laws of any particular State), the association becomes an entity in the abstract which is superior to any of the members who actually make it up. Without any language of hierarchy whatsoever in the Church’s governing documents, such a metaphysical abstraction cannot be declared to exist as a matter of law. The great jurist William Blackstone had this to say about voluntary associations (Commentaries, Book I, ch. 18, *467-*68; italics added):

To show the advantages of these incorporations, let us consider the case of a college . . . founded . . . for the encouragement and support of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they **468]could neither frame, nor receive, any laws or rules of their conduct; none, at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? . . . So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals . . .

In short, the “general Church” of which ECUSA speaks throughout its brief is a mere mental abstraction, and not a legal entity in its own right. The Constitution of the Episcopal Church (USA) was formed after the Revolutionary War by the agreement of the various successors of the Church of England in the States of Connecticut, New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia and South Carolina, who each sent delegates from their respective churches to a gathering in New York in 1789 for that purpose. The result was, as the current Preamble to the Constitution recites, “a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and regional Churches in communion with the See of Canterbury . . .”

Thus, the plaintiff Episcopal Church alleges in its complaint below that it is an unincorporated association, but then denies before the Court of Appeal that it has brought the action as such. The inconsistency boggles the mind, but not 815.

Would the real “Episcopal Church” please stand up?

[To be continued.]

Is the Left Scared out of Their Minds? You Betcha!

2009-11-04T07:16:00.000-08:00

You be the jury. Here is Exhibit A -- the cover of a book by Sarah Palin scheduled to be published on November 17, and which undeniably has been at the top of the charts of non-fiction books at http://www.amazon.com, as well as at the sites of all the other online booksellers:

Notice the title (as if you hadn't heard it already).

OK, now look at this image, which purports to be the image of a different book scheduled to be published on the same date -- November 17 -- taken from the site of certain left-wingers to whom I refuse to link (someone has to maintain standards in these days):

So we have "Sarah Palin - Going Rogue" versus "Sarah Palin - Going Rouge" -- and they expect us dumb consumers not to be able to tell the difference? Also, note that the latter is subtitled "An American Nightmare", which should tell you all you need to know about the book in question, and about the motives of those who would foist such blarney upon the unsuspecting public.

What the above facts prove, without any question, is that the left is scared brainless by the advent of Sarah Palin upon the national book scene. I do not have to document that assertion any further than by quoting, in toto and again without any link that would lend legitimacy, the following text from the site of the arrant left-wing snobs who also propose to put out a book on November 17, with the following cover:

The title of their book makes a play on the same alteration from Rogue to Rouge. (Why is it that those on the left have no sense of humor? "Going Rouge" is not even funny, but apparently at least two groups on the left independently came to the conclusion that it is hilarious.) Listen to these supercilious intellectuals tell, in their own words, what they think they are accomplishing with the publication of their coloring book for simpletons (again -- online, which means no hard copies in bookstores -- and with no guarantee of being published other than their word on the Internet, so caveat emptor). The emphasis has been (charitably) added:

Yeah, yeah, we heard all about the Sarah Palin’s Book Going Rogue – An American Life to be launched on Nov 17th. They expect to move 1.5 million copies, and pre-orders have been brisk.

We couldn’t let that stand without a fight. There are two sides to every story, but let’s get something clear here – Sarah didn’t write this book either.

So we created an alternative: Going Rouge – The Sarah Palin Rogue Coloring and Activity Book, now available for pre-order, with a launch date of November 17th, just like that other shameless rot. But our book is chock full of mazes (like “Help Sarah find her way to the White House”), puzzles, word games, and brilliant illustrations to color or chuckle over as we mercilessly lampoon and parody everything Palin in 48 pages of hilarity.

C’mon, you don’t want to create the appearance that you condone or support Sarah Palin by purchasing crap you KNOW will be piled high in the $3 book bin in a few months, do you? Instead, order a classic, collectible Palin book – one that hasn’t even been colored in yet – one that’s not just a buncha words, it’s got pictures!

Pre-order a million and a half copies today (This means you, Mr. Soros — the rest of you can order one or a few) and show Sarah that WE can Shop Too!
One of the characteristic features of the left is that they look down on their readers/voters/followers as possessing intellects vastly inferior to their own -- so inferior, in fact, that the poor schmucks are unable to perceive when their intelligence is being insulted. Note the self-aggrandizing in the following paragraph (with emphasis again added):

Brilliantly illustrated by cartoonist Julie S____, and co-authored with Micheal S____, award-winning political activist/satirist and radio host who has appeared on numerous cable and network television shows [sic]. This husband and wife team met at the National Cartoonists’ Society Reuben Awards weekend in 2000 at the World Trade Center in New York, the event where pro cartoonists who create the cartoons that shape our culture gather annually.

The "cartoons that shape our culture"? Indeed -- enough said. Consider what this means: the left -- such as it is, from idle cartoonists to venial scribblers -- cannot abide the notion that people might approve of Sarah Palin, or buy her book. The simple, direct publication of the account of her début on the national stage is enough to send them into a frenzy of lies and irrelevancy. (And since book titles are not copyrightable, they obviously think they can infringe openly, without fear of a lawsuit from Palin's publishers; the purposeful imitation of the book's entire cover by the first ripoff, however, might afford the basis for a claim.)

There is probably no better barometer of which potential candidate in 2012 would give the left their greatest conniption fits than their knee-jerk reactions to anything Sarah Palin says or does. Moreover, the left is starting to realize that its majority may not be holding up as well as one might think. Look at their attempts to seem unconcerned about the Republican upsets yesterday in New Jersey and Virginia. And if you really want to see the left's grass roots in action, take a good look at all the videos of schoolchildren in this eerie post.

The next three years are going to be very interesting times, politically speaking.

Can a Diocese Leave ECUSA? Laying out the Case in San Joaquin

2009-11-03T12:59:00.000-08:00

Speculation circulates on the Web concerning the appeal that Bishop Robert W. Duncan has announced will be taken from the ruling by Judge James of Pittsburgh that the Diocese violated an October 2005 stipulation by voting to leave the Episcopal Church (USA). The speculation is meaningless, because until the appeal has been taken and the briefs have been filed, it is impossible to evaluate the merits of the appeal.

Meanwhile, back in Fresno, the briefs have been filed in the writ proceeding in the Fifth District Court of Appeal, and it is now possible to look at how each side is arguing the case. It is called a "writ proceeding" because it is not an appeal from a final judgment in a case, but a petition for the Court to issue a "writ of mandamus" (from the Latin for "we command [you] . . ."), directed to the trial court, and ordering it to vacate (erase) an interim order which it entered last June granting summary adjudication to Bishop Lamb, the rump diocese and ECUSA on the first cause of action in their complaint. (For more detail on the trial court's ruling, see this post.) No date for oral argument has yet been set by the Court.

The importance of this appeal for the Church's litigation with other dioceses cannot be overemphasized. At issue in the San Joaquin, Fort Worth, Pittsburgh and Quincy cases is whether a Diocese of the Church may leave it by amending its Constitution. The current leadership at 815 is contending that once it joins the Church, a Diocese must forever remain a part of that organization. It has neither language nor logic on its side, but it still makes the argument. The California Fifth District Court of Appeal will in all likelihood be the first appellate court in any State to evaluate the merits of the Church's case.

In a series of upcoming posts, I will lay out the positions taken by the respective sides, by publishing extracts from their briefs, which are now a matter of public record. For this initial post, I shall reproduce here the Introductory Statement and the "Petitioners' Theory of the Case" section from Bishop Schofield's opening brief. Taken together, they provide a good introduction to the issues at stake.

First is this excerpt, from the Introduction to the Petition:

The action below arises from an internal church dispute over the ownership and control of real and personal property located in nine Central Valley counties. Its outcome will affect thousands of worshipers attending weekly services at some forty missions and parishes, from Stockton to Bakersfield. In the context of Episcopal Church litigation, the dispute presents a case of first impression. For the first time ever, the Episcopal Church is pitted in a property dispute against an autonomous member diocese -- as opposed to an individual parish under diocesan control. The member-diocese was the Diocese of San Joaquin as it existed on December 8, 2007, when the delegates to its 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 member church of the worldwide Anglican Communion.

The ultimate factual question is this: as to diocesan governance, which body is, in Supreme Court parlance, the "highest judicatory" in the structure of the Episcopal Church? Is it the Diocese of San Joaquin that amended its Constitution in 2007, or is it the General Convention of the Episcopal Church, or some third entity claiming authority on behalf of the "Episcopal Church" as a whole? Both sides claim final authority over the Diocese's own property, and only one can be right.

Determining religious hierarchy is a complex undertaking often involving numerous factual variations as evidenced by the wide range of hierarchical denominations that exist today. It is not enough to know that a church is hierarchical. When faced with a property dispute, a civil court applying neutral principles must undertake the careful factual inquiry required by Jones v. Wolf¹ and, more recently, the Episcopal Church Cases,² to determine what the highest judicatory is in the case at hand. Classifying a church as hierarchical entails only that there is such a body, but not what that body is.
________________
1 (1979) 443 U.S. 595.
2 (2009) 45 Cal.4th 467.

In ruling on the motion at stake, Respondent Court refused to allow petitioners to dispute plaintiffs' factual representations about the Episcopal Church's structure and authority -- and hence the very standing of plaintiffs to conduct the lawsuit in the name of the Diocese that voted to disaffiliate in 2007. Respondent Court simply ignored that petitioners disputed 28 of plaintiffs' 66 identified material facts. The motion should have been denied and the matter set over for trial. However, because other courts (in cases involving parishes) have labeled the Episcopal Church "hierarchical," Respondent Court allowed no inquiry into its structure and brushed aside the factual conflicts. Respondent Court then compounded its error by drawing improper legal conclusions from contract language (parts of church constitutions) that provides no support for the conclusions drawn.

The order granting summary adjudication of the first cause of action for declaratory relief is not only wrong, but it infects the six succeeding causes of action through chain-pleading of the issues summarily adjudicated. The declaratory relief issues that were improperly adjudicated in the first cause of action will, in all likelihood, preordain the outcome on the succeeding legal causes of action set for trial on February 1, 2010.* Since the summary adjudication ruling ultimately cannot stand, another trial on all issues and causes of action will be required with the attendant cost, delay and chaos caused by interruption of the status quo.

. . .

For these reasons, petitioners seek relief expressly authorized by statute. However, merely reversing the improvident summary adjudication order is not enough. Since Respondent Court undertook to interpret key provisions of governing documents of the Diocese and Episcopal Church as a matter of law, the conclusions drawn from this erroneous analysis should be specifically addressed by this Court to ensure they will not govern the remainder of this case.

_______
* Ed. note: since this was written, the parties have submitted a stipulation to continue the date for the trial until after the appellate court has issued its decision.

And now, here is an excerpt explaining the petitioners' "theory of the case":

The Episcopal Church is a voluntary unincorporated association created in 1789 by preexisting state (diocesan) churches and not the other way around. Because it was created in this manner, the Episcopal Church, under common law principles, acquired only the power and authority expressly ceded to it by its founding members. Similarly, under Anglican canon law, power is generally reserved to a local body if not expressly granted to the central body.

The General Convention of the Episcopal Church does not "create" dioceses as plaintiffs insist. Rather, dioceses self-organize and apply for admission by submitting their constitution to General Convention for its acceptance. Dioceses joining the Episcopal Church signify their affiliation by ratifying the general Constitution through an "accession" clause in the diocesan constitution. "Accession" (through its cognate "accedes to") has been the mode of diocesan affiliation from the creation of the Episcopal Church in 1789 until today. "Acceding" is a technical term from international law used to describe the act of a sovereign state becoming a party to a treaty signed by other sovereign states. As explained by the United States Court of Appeals: '''Accession' is 'the act whereby a State accepts the offer or the opportunity of becoming a party to a treaty already signed by some other States .... '" (Avero Belgium Ins. v. American Airlines, Inc. (2nd Cir. 2005) 423 F.3d 73, 79, n.7.) "Accession" does not connote irrevocability, but the opposite.

Turning to the national Constitution, one finds no language creating a hierarchical relationship with a diocese. A check of the general Constitution with any search engine reveals that none of the routine terms indicating hierarchy can be found: "supreme"; "supremacy"; "highest"; "subordinate"; "sole"; "preempt"; "final"; and "contrary." These terms do not appear because it is the diocese that is the highest authority in the Episcopal Church.

The General Convention of the Episcopal Church is a legislative body and not a judicatory body. The Presiding Bishop is merely a "first among equals" and has no metro-political authority over bishops or dioceses. Under the national Constitution and Canons, neither the General Convention nor its Presiding Bishop is given authority to act within a diocese, or to control its actions. There is no ecclesiastical body within the Episcopal Church given authority over the actions of a diocese, only over Bishops.

Finally, the relationship between a diocese and the General Convention of the Episcopal Church has never been adjudicated by a civil court. All reported cases to date involving the Episcopal Church hold that a diocese or a bishop is the hierarchy vis-à-vis a parish; not a single one adjudicates issues between General Convention and a diocese. Significantly, the diocese-versus-parish cases have all been decided based on the presence of hierarchical language in the diocese-parish governing documents--but this same hierarchical language is conspicuously missing from the diocesan and national counterparts. This is no accident. From all this, only one conclusion is possible: the diocese is the central authority, the "highest judicatory," in the Episcopal Church structure. This conclusion is also logically and legally consistent with the Episcopal Church's legal structure as an unincorporated association whose members are autonomous dioceses. Thus, plaintiffs cannot prove the crucial assertion upon which their entire case is based, namely, dioceses are "subordinate" entities that cannot "unilaterally" withdraw from the Episcopal Church.

Many of these arguments, of course, are already familiar to readers of this blog. Nonetheless, it is fascinating to see how they are stated and opposed in the context of formal legal briefs to an appellate court. In the next post in this series, I will quote the parties' allegations and responses in the formal body of the petition itself. That will allow a reader to see most directly how the main issue has now been joined in the San Joaquin litigation.