Connecticut Supreme Court Enforces Dennis Canon

Today the Connecticut Supreme Court upheld the Dennis Canon against a challenge offered by the rector and certain officers and vestry members of Bishop Seabury Church in Groton. The effect of the decision, which affirms a 2010 summary judgment granted by the trial court, is to require the defendants to turn over all of the real and personal property of Bishop Seabury's to the Diocese of Connecticut and the parish under the direction of the Rev. Canon David Cannon (this case is all about canons and cannons), whom the Bishop of Connecticut appointed as priest-in-charge following the departure of the prior rector and congregation to join CANA. (The parish, with its rector and vestry, had been using the Church pending the decision on the appeal, and so now they will have to vacate it.)

The victory by the Diocese may prove to be another Pyrrhic one for the Episcopal Church (USA), which has spent around a million dollars litigating the case. It is unclear whether the remnant and their priest-in-charge will have adequate resources to maintain the buildings and all the related expenses of a full parish. And it is also not clear at this writing whether the case is finally over: the defendants have 90 days within which to ask the United States Supreme Court to review the decision, as I will explain below.

There are actually two opinions today by the Connecticut Supreme Court; I have linked thus far only to the main one. The second decision affirms the trial court's rejection of a motion by the full former congregation of Bishop Seabury's, with some 280 voting members out of a total of about 700, to be allowed to intervene in the case to defend their title to the property. The Supreme Court decided that the interests of the larger group were adequately represented in the principal litigation by the twelve individual defendants.

There is little to say about the main decision, because although it is lengthy (the defendants having raised some fifteen separate defenses), it does not say anything that is new under Connecticut law -- except to establish (paradoxically) that Connecticut courts will be required to decide all future church property cases using "neutral principles of law." Listen to how the Court pats itself on the back for deciding in favor of the latter, before then going on and allowing a national Church to impose a trust on all local property by the enactment of a single canon:

Having considered these differences, we conclude that the neutral principles of law approach is preferable because it provides the parties with a more level playing field, and the outcome in any given case is not preordained in favor of the general church, as happens in practice under the hierarchical approach.

The decision repeats all the usual errors about the "hierarchical" nature of the Church -- while purporting to decide the merits on grounds (neutral principles) which should, as the Court itself acknowledges at one point, render the character or polity of the underlying church itself irrelevant. By reading Justice Blackmun's infamous dictum in Jones v. Wolf as actually binding the civil courts, however, the opinion reaches a new nadir in constitutional interpretation:

Jones thus not only gave general churches explicit permission to create an express trust in favor of the local church but stated that civil courts would be bound by such a provision, as long as the provision was enacted before the dispute occurred. We also reject the view that the Dennis Canon represents a ‘‘self-serving declaration of trust’’ because, as we previously noted, Parish members agreed to be bound by the constitutions and canons of the Episcopal Church and the Diocese in 1956 when they affiliated with the Episcopal Church, and, as a result, their interests are in harmony with those of the Episcopal Church and the Diocese.

What a statement: to find that the interests of the parish "are in harmony with those of the Episcopal Church and the Diocese", just because on joining the Church in 1956, members of the parish agreed to be subject to the national and diocesan constitutions and canons! Courts regularly indulge in what are called for this very reason "legal fictions", but this last one by the Connecticut Supreme Court bids fair to trump any I have seen expressed before. (And that includes the one in Mr. Dickens' Oliver Twist, when Mr. Bumble was informed that the law "assumed" that a husband was in control of his wife. "If the law presumes that," Mr. Bumble famously responded, "then the law is a ass.")

Thus Connecticut now joins California and New York as States of safe haven for ECUSA's ambitions to have all parish property everywhere under its thumb. As readers of this blog will be aware, the highest courts of the latter two States have each professed to follow "neutral principles of law" on the surface, while in reality deferring to the so-called "hierarchy" of the Episcopal Church (USA) underneath. The result is to grant to ECUSA a favored status under State law, because the decisions mean that only nationally structured churches such as ECUSA and PCUSA can qualify for special treatment. Connecticut now joins those two other States in that approach.

While normal people in all three States have to comply with the Statute of Frauds in order to create a trust in real property, these special churches do not. Under the Statute of Frauds as recognized in all fifty States, a trust in real property can be legally created only by a writing signed by the actual owner of the property. But for the special churches mentioned earlier, all they have to do to create trusts in the properties of all their individual parishes is to enact a national rule, or canon -- and for ECUSA, that is its Dennis Canon.

Selecting out some churches for preferential treatment under State law harkens back to the colonial days, when every citizen was taxed to support local parishes of the established Church of England, regardless of whether they happened to belong to those parishes or not. This was one of the reasons for the enactment of the First Amendment as part of the Bill of Rights: it expressly prohibited Congress from "establishing" any religion -- which would include favoring one or more over any others. Later on, in subsequent decisions, the United States Supreme Court extended the reach of the First Amendment to all of the fifty States, as well.

Thus, on the face of things, the interpretation and effect given to the Dennis Canon by today's decision would appear to be one more grant of preference in favor of a "hierarchical" national church, under the guise of applying principles which are scarcely neutral. The Connecticut Supreme Court had no difficulty in binding Bishop Seabury to a little-noticed canon enacted some twenty-three years after it joined the Diocese and acquired its property. Only in such churches, where the national canons are deemed "binding" on all of its lower elements from the moment they take force, can a group be held to have agreed blindly, years in advance, to whatever the national legislative body might see fit to enact many, many years down the road:

When the Dennis Canon [of 1979] is considered together with the application submitted by the members of the local congregation in 1956 for admission to the general church as a parish and with other church documents, it is clear that the disputed property in the present case is held in trust for the Episcopal Church and the Diocese. . . .

Thus, in agreeing in 1956 to abide by the constitution and canons of the Diocese, members of the congregation also agreed to abide by the constitution and canons of the Episcopal Church, including the subsequently enacted Dennis Canon. There is no provision in the constitution and canons of the Episcopal Church or the Diocese expressing an intent to the contrary or excusing a parish, either explicitly or implicitly, from complying with amendments or additions to the constitution and canons that might be enacted after a parish is accepted by the Diocese.

Of course, there is no provision in the constitutions and the canons of the national Church or the Diocese that all future enactments by them will become automatically binding on the parishes in perpetuity, either. (I will have more to say about this in a future post.)

And it is this discrepancy in treatment which may give Bishop Seabury's a federal ground on which to ask the United States Supreme Court to review today's decision. This is especially true in light of the earlier decision by South Carolina's Supreme Court, which also under "neutral principles of law" refused to give any legal effect to the self-declaratory Dennis Canon. It is difficult to see how "neutral principles of law" can be used to arrive at exactly opposite results, unless the result in favor of the national church is due to the granting to it, under State law as interpreted by that State's highest court, a special preference which would be unconstitutional under the First Amendment.

Cut it any way you like, but today's decision contributes further to the patchwork quilt of church property jurisprudence, in which all courts applying the same "neutral principles" still reach different results: the Dennis Canon ostensibly binds parishes in New York, Connecticut and California, but not in South Carolina, Kentucky, New Hampshire or Arkansas -- with Virginia still to be determined. And for that crazy result, we have ECUSA and its hired attorneys to thank.

So -- hang on to your hats. This case is not over until it is over, which is to say, until we see whether a petition will be filed in the next ninety days.

[UPDATE 09/30/2011: One has to marvel at the innocence of some good Episcopalians, such as the Very Rev. Nick Knisely, Dean of the Cathedral at Phoenix, in the Diocese of Arizona. I love his blog "Entangled States", which frequently informs me about the latest discoveries in the world of physics and cosmology, and so I link to it at the right. But look how, posting at The Lead, he has distorted the Associated Press account wholly to favor just ECUSA (emphasis added):

The Supreme Court of Connecticut today decided in favor of the Episcopal Church and the Episcopal Diocese of Connecticut in a dispute arising when a number of former Episcopalians claimed ownership of the building and property of the parish they had attended. . . .

"We now conclude under neutral principles of law that the Dennis Canon applies and that it clearly establishes an express trust interest in the property in favor of the Episcopal Church and the Diocese," [Connecticut Supreme Court Justice] Zarella wrote."

More here.

The article goes on to list all the instances where State supreme courts and other courts have ruled in favor of the Episcopal Church and the argument that the Dennis Canon means that all property in the Episcopal Church is held in trust for the Episcopal Church as a whole.

For your information, Dean Knisely, the article does not provide anything even approaching such a "list." In the first place, it confines itself just to a listing of cases in 2011, so it does not claim to survey the entire field. Next, it mentions the California litigation involving St. James, in Newport Beach, California -- in which St. James won its right to go back to the trial court for further proceedings: that is hardly an instance where the State court ruled in ECUSA's favor. Then the article mentions Pittsburgh, but that litigation is waiting to hear whether the Pennsylvania Supreme Court will review the appellate court's decision. And look at the other cases it mentions: Virginia and Texas, where there are no final rulings of any kind, and --- wait for drum roll, please -- Canada!

Pray tell us: how does the decision of a court in Canada, which operates under completely different laws and precedents, and which involves the Anglican Church of Canada, count as a "rul[ing] in favor of the Episcopal Church"? (Just because the Canadian court decided in favor of the Diocese of Westminster does not make it a Dennis Canon precedent -- the decision went entirely on the Canadian law of implied trusts, and not on express ones.) I am afraid, Dean Knisely, that your wishes that something were indeed true about our Church have led you, in this one instance, at least, to engage in some ultracrepidarian misinformation.]

The Wheel Goes Round

One aspect of the sexuality debates is the extent to which those opposed to same-sex marriage ground their arguments in circular reasoning. Most of them are aware enough to see how empty it sounds to say, “Same-sex couples cannot marry because marriage is only for men and women.” So their thesis usually takes a more nuanced, but no less circular, form. “Only a man and a woman can marry because only a man and a woman are capable of procreation.” When it is noted that men and women who cannot procreate are still permitted to marry, and that marriages do not end with the end of the ability to procreate, the language shifts to, “Only men and women can marry because only a man and woman are capable of performing a procreative act.” By “procreative act” they mean an act that could be procreative if the couple were procreative.

It is very easy to become caught in the linguistic and logical thicket such thinking is based on, but in the long run it is of the form, “A procreative act is an act which, if the couple were capable of procreation, would be capable of procreation.” This strange thesis entirely begs the question, in part because “acts” aren’t procreative — people are. Procreation is not a matter of form, but of substance and capacity. If the couple aren’t capable of procreation, no act they perform can be “procreative.” In the long run this is just another way of framing the assertion that only men and women can marry.

To get a bit technical, this is the assertion of a counterfactual conditional as if it were an indicative conditional. (The difference is between “X would be if Y were though it isn’t” and “X is if Y is and it is.”) Saying something “is” when it “isn’t” — though “it would be if it were” — is at the heart of this logical fallacy.

One of the exponents of this view declared that it is analogous to angling: even when a fisher fails to catch fish he is still fishing. This is a misleading analogy. The proper analogy, from the traditionalist perspective, is “sex is to procreation as angling is to catching fish” (i.e., sex and angling being the activity and procreation and catching fish the particular and assumed desired result of that activity). Sex without the possibility of procreation is sex, but it is not procreative. It is nonprocreative sex — whether whatever makes it incapable of leading to procreation is artificial (birth control) or natural (temporary or permanent infertility, or the sex of the members of the couple).

The traditionalists simply want to restrict sex to those who formally embody the capacity for procreation, whether they are actually capable of procreation or not. And that is just another way of limiting sex, and marriage, to a man and a woman: the very premise that needs to be proven. And so the wheel spins another round.

Tobias Stanislas Haller BSG

---

Thought for 09.29.11

In sorting through a pile of old rubber stamps at the parish office today, it struck me that when we say a child is “marked as Christ’s own” in baptism that it is not unlike marking them with the rubber stamp that reads, “Property of Jesus; Do Not Remove From Church.”

Tobias Stanislas Haller BSG

What if the Foundations Were not Designed for the Current Structure?

[Nota Bene: Readers are warned in advance that this will be the first in another of those desultory series on this blog about the continuing decline and fall of ECUSA. It is an elaboration of my far briefer remarks for this week's Anglican Unscripted, which the less interested reader could simply watch instead. More parts will shortly follow.

(I apologize for not being able to make this sorry chronicle even half as memorable as the related account by Mr. Edward Gibbon, but the difference is that he was able to describe a truly grand empire that had gone defunct, and the whole colorful picture was complete before he started. Your Curmudgeon, on the other hand, has the unenviable task of portraying the decline of a not-so-big and not-so-grand Church as it is not-so-dramatically happening in real time, and from within its own ranks.)]

In 2008, the political mood of the country was significantly behind the "Hope and Change" platform of the first black President of the United States. Nearly three years later, however, there are serious recriminations being voiced about whether the structure the President has built around that platform is in the country's best interest, and whether the Obama administration deserves another four-year term to keep enlarging it.

The problem is that Obama has been trying to fit a statist structure, or polity -- one where decisions at all levels are made by the government, and specifically, by the executive branch -- onto foundations that were designed from the outset to support divided government, with its various checks and balances. The result has been a budgetary and political catastrophe.

Billions and billions of dollars have been allocated to bailing out companies which deserved the failure their own shortsighted policies had brought upon them, but who survived instead to fail another day, thanks to their cronies in the government being generous with the taxpayers' money and with the credit of future generations.

Czars by the dozen have interfered in every aspect of citizens' lives, without any authority conferred upon them by Congress (even assuming arguendo that the Tenth Amendment did not reserve all such authority to the people themselves).

Unemployment remains stagnated at an unacceptable level, simply because the business climate has been rendered so uncertain by Obama's statist interventions into the economy. Those misguided measures produced unworkable distortions which are discouraging entrepreneurship and new investment (think: the moratorium on drilling in the Gulf of Mexico, or on the opening of new shale deposits, with the resulting continued record high costs of fuel -- and look at what is happening right now to the Canada pipeline project).

In 1810, it would have been impossible for Congress to conceive of telling Americans that they had to switch from burning tallow candles in their homes to ones made only of beeswax, in order to reduce smoke and cut the waste of wax drippings. But just 200 years later, Congress felt free to dictate to all Americans what kind of lightbulbs they could use, in order to conserve electricity. How is this possible?

Answer: it isn't -- at least, not for very long. Have you noticed how many people are fighting back against any more statist decrees and laws, and crony bailouts? (Only some of those people are the "Tea Partiers" -- whom Obama's statist supporters, nevertheless, single out for slander and opprobrium.) Have you noticed, also, that even Nature fights back when "environmentalists" push policies whose consequences their own short-sightedness keeps them from seeing? And that every now and then, even the courts manage to wake up to see the wool being pulled over everyone's eyes with regard to the environment? (And to the detriment, again, of local economies?)

What the statists will try with the United States Government, so, too, the statists in the Episcopal Church (USA) will attempt with their own progressive platform. The process began with a change in their public image -- when they first dropped the word "Protestant" in front of their name in order to become known as "The Episcopal Church". (Everyone knows that there is only one Episcopal Church, right? Of course they do. But notice that, change or not, they have lost nearly fifty percent of their members in the years since the referenced news story appeared in 1964.)

Then it continued with expansion of the national Church's budget, almost 40% of which is now fed by monies from the federal government (for Episcopal Migration Ministries), in order to accommodate the multiplication of Committees, Commissions, Agencies and Boards (over 75 now discernible), and the huge growth in the House of Bishops, with now over three hundred members (that's more than three for every diocese!) -- two-thirds of them, of course, having resigned (retired from) their jurisdictions.

We are now at a point where the Episcopal Church (USA) finds itself in significant structural trouble, which is having equally significant ramifications for its budget. As we have just seen, all during the period that it was steadily dropping in membership, the Church was expanding its national superstructure and its budget. This made no sense, but apparently no one in charge cared, until the steady decline in voluntary contributions, from an ever-shrinking base of parishioners, literally forced the leadership to make painful cuts. And still, the Church continues to lose members -- on average, about forty parishes a year (the equivalent, one of its officers says, of a "very small, admittedly, diocese"). Even such a small number, however, adds up significantly over time, and the cumulative effects are extremely unhealthy for future prospects.

ECUSA is like a huge mansion constructed some time ago, whose foundations are slowly eroding while its superstructure remains just as huge and heavy as ever. It makes no sense for the House of Bishops to keep growing while the number of parishes steadily diminishes. Likewise, it makes no sense for ECUSA to be downsizing its budget, to match the fall in voluntary contributions, while sending its bishops to meet in Quito so that the Church can demonstrate its claim to an "international" polity. These two observations, however, furnish a basis for drawing further conclusions about what is now happening.

A third observation coincides with the second one: one wholly unstated purpose of the bishops' traveling to Ecuador for their meeting was so that the Bandit Bishop could raid another diocese, and force out those she now found unsatisfactory in order to put in administrators of her choosing (and start a new round of the debacle that began with the arrogance of General Convention in 2009). One would like to have been a fly on the wall when Bishop Jefferts Schori informed Bishop Luis Fernando Ruiz that she expected him to resign by the end of the month, "for the good of the diocese." Did she have her Chancellor present, and did he suggest that a refusal might offer the inaugural occasion for her to exercise the new metropolitical powers which she was given [albeit illegally] under the revised disciplinary canons?

ECUSA from its beginnings was never designed with the foundations to accommodate a huge mansion. Its base was more akin to a small but sturdy platform designed to hold a collapsible tent, which it erected once every three years for a brief period. Select numbers of the Church's clergy and laity would come and meet in the tent, and then fold it up and put it away for another three years. Its presiding bishop was just another diocesan, like everyone else, who had his own diocese to run in the interim. Chairing a tent meeting every three years was not a significant additional burden for one bishop to assume, and that was how the Church functioned at the national level for 160 years.

ECUSA's General Convention in those days had as its primary function the hearing of reports on the status of the Church in each Diocese. Occasionally it was called on to admit another new diocese into union with the Church, or appoint a bishop to supervise a missionary diocese, and now and then it adopted amendments to the Canons. But its role on the national scene was largely ephemeral, and entirely forgettable.

What changed ECUSA structurally from its original model was the slow but steady growth in the size of its House of Bishops, as more and more territory came under ECUSA's jurisdiction, and also the advent of powerful new social forces. The first factor forced a change in the office and functions of the Presiding Bishop; following that change, the second factor transformed the character of the Church itself, under the active leadership of the new breed of Presiding Bishops.

In the fifties and sixties of the twentieth century, the Church's identification with the "peace and justice" movement began to add to its superstructure. At first, the Church became fired up with zeal for the civil rights movement in the South. To demonstrate its solidarity with the cause, its Presiding Bishop, the Rt. Rev. Henry Knox Sherrill (founder of the World Council of Churches), even canceled a General Convention which had been planned for still-segregated Houston, in 1955, rather than be embarrassed in front of his colleagues on the Council. Under his successor's initiative, the Church embarked on the "General Convention Special Program", by which money raised in dioceses, largely by Episcopal Church women through their United Thank Offering, was given to Presiding Bishop John Hines to use for his own social and civil rights agenda in the South and elsewhere. It was an ambitious program which soon began to undercut those of the several dioceses, and which, of course required an ever-larger bureaucracy -- and eventually, in 1963, a brand-new skyscraper for their headquarters.

But notice, if you will, the opposing direction of these two trends. The steady enlargement of the House of Bishops meant that they became a force of their own -- to be reckoned with, but primarily concerned with their own unique powers and theological innovations. Heresy entered the House of Bishops, first with Bishop Pike, and then with Bishops Spong, Righter and others quickly following through the breach which Bishop Pike had made. At first, the assembled bishops managed to censure Bishop Pike, but after that their courage became too diluted, and they failed to discipline the new generation of heretics. Eventually, as we all know, heresy swallowed up orthodoxy, and became itself the new orthodoxy under the new breed of bishops.

While the Bishops were distancing themselves from the traditional positions of those in the pews, at the same time the second trend, the new activism in the name of "peace and justice", was slowly transforming General Convention itself, and its House of Deputies.

Civil rights in the political sphere led to "civil rights" for women in Episcopal ordination, and the success of that blatantly political ploy was then imitated by the "gay rights" movement. By the late 1990s, ECUSA's General Convention was dominated by a new breed of deputy, described by one knowledgeable observer as "people with an excess of leisure time, or people with a cause." Because it was a mecca for activists, it became likewise a mecca for the causes and movements which the activists supported:

Convention is more than legislation. One of the most interesting parts of convention is the Exhibit Hall. The Exhibit Hall reminds me of an oriental souk: it is a marketplace of goods and ideas in which the organizations and interest groups within the church present their wares, recruit members and do their best to influence legislation. It is a colorful part of convention, and it would not be General Convention without it.

Many church-related organizations hold meetings in conjunction with convention, and there are lunches and dinners hosted by seminaries, provinces, societies, boards and staff offices of the church. . . .

General Convention is a combination of legislative assembly, bazaar of goods and services and family reunion. It is one of the most exciting and, truth be told, one of the most awe-inspiring gatherings in the world.

(And that is General Convention's Executive Officer speaking!) Moreover, this new breed of deputies felt no allegiance whatsoever to the diocese that elected them, because they viewed their mission as being guided by no less than the Holy Spirit (here is the Executive Officer again, with my emphasis added):

Deputies are not delegates; that is, they are not elected to represent the electing dioceses.

Deputies vote their conscience for the good of the church. They cannot be instructed to vote one way or another, for to do so would preclude godly debate and preempt the work of the Holy Spirit. . . .

Is it any wonder, then, that there is an ever-widening disconnect between what goes on at General Convention and what goes on in the daily life of the Church? The former has become nothing more than a spectacle, a useless extravaganza costing the Church millions, which enables its select participants to feel good about themselves. Once General Convention adjourns after coming together for ten days, its same members never get together again, so there is little follow-up on the myriad resolutions which it enacted, and zero accountability for what was done in the Church's name (such as amending the disciplinary canons to give the Presiding Bishop metropolitical powers).

Thus the Episcopal Church still has its collapsible tent which it puts up every three years, only now it is more like a Big Top Circus enclosure. Unlike the Church founded in 1789, it now has a permanent superstructure housing a national bureaucracy (think of those 75 Committees, Commissions, Agencies and Boards), which meets continually, and fills in the gap between General Conventions. And as it always tends to do, the bureaucracy has taken on a life of its own, despite its duplication of much diocesan effort, and despite the lack of any underlying structural support for its existence at the national level. (Recent budget shortfalls have finally forced a reduction in the size of the bureaucracy.)

As I hope you now can see, this mismatch between structure and design is the same problem which President Obama ran into when he tried out his statist platform on our traditional government base: it didn't fit, because the foundations were not designed to support such a structure above. Likewise, the model for the national Church, with its simple platform for a collapsible tent brought out only once every three years, cannot support an ongoing national bureaucracy, whose agenda is frequently at odds with the agendas of the member dioceses. The disintermediation is undermining the Church's structure, as well as its budget, and cannot long continue without further and far more radical changes than those which have occurred up until now.

In the next post in this series, I will take up the recent proposal from Bishop Stacy Sauls, the Church's new Chief Operating Officer, for just such a "restructuring."

Du musst gehen!

I don't have a problem with this just on constitutional grounds. I have a problem with it on theological grounds:

Operation Restore Our Community or “ROC”…begins next week. The city judge will either let misdemenor [sic] offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.

If offenders elect church, they’re allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender’s case will be dismissed.

Set aside the 1st Amendment problem (which ThinkProgress details very nicely), there's the theological, or I should say, ecclesiological problem: what is church for?

In other words, do I want these people in my church because they don't want to go to jail? And the answer is: No, I don't.

Because they are prisoners otherwise? Don't be ridiculous. The criminal charges against them mean nothing to me. No, the problem is: why are the "sentenced" to church for one year? Because worship has magical powers? Because God's presence is only felt on Sunday morning for an hour, and it's the only place we can be sure God is present, and on a regular schedule? Is it because it's the only place God is likely to get their attention, and once God does, that will straighten them out?

If I am taking this lightly rather than theologically, it's because it barely deserves serious consideration. But think about the assumption here: somehow "church" will provide something that is missing (shades of Augustine!) and that will provide the corrective to their behavior that jail manifestly fails to do (and when do we start having that conversation about justice and what prison is for?).

If this wasn't a small town in Alabama, I suppose it would make as much sense to sentence the offenders to be oblates at a monastery. I mean, look what that did for Kathleen Norris!

Okay, enough silliness. Let's consider the thinking, such as it is, behind the proposal. First, that God is only known in a place where God is always known to be. Well, then, consider the counter examples of Abraham (not sure where he was when God first spoke to him); Moses and the Burning Bush; Elijah and the whirlwind; Jacob's ladder; or even Nathan reproaching David. Or any of the prophets speaking to anyone who would listen in Israel. Where is the Biblical evidence that God is in the Temple and only available for revelations during scheduled visiting hours?

And then there's the famous story of Jesus at the Temple, watching the rich man ring in his money while the widow meekly contributes her mite. Things haven't changed much in 2000 years, but we still need Jesus to tell us what's going on; and we still need to listen.

And there's the rub: "He who has ears had better listen!," Jesus liked to say. But if we have ears and don't use them, will a year in church on Sunday mornings make us any wiser? And what is it we are to learn? Are we to see with our own eyes, hear with our own ears, and know with our own minds? Or is the truth known to believers the truth that is revealed by God? If God can harden Pharaoh's heart three times (look it up; Exodus. I'll wait.) before the Israelites are finally released from Egypt, then who do we blame for criminals who don't know enough right from wrong not to commit crimes? God, for not opening their hearts? Or the church, for not preaching loudly enough they can't help but get the message?

If the revelation comes from God, then the church can do nothing to forward it to the unbeliever and those to whom it hasn't been revealed. If the revelation doesn't come from God, then our knowledge is only what we discover, and what we know is only known through our senses (and we're all empiricists) or it is more importantly what we recover from our pre-birth memories (and we are all Platonists). Either way, it ain't Christianity; and that's the theological problem.

I suppose the idea is that if we are guilty by association, we will be redeemed by association, too. But I've been around church people, and a year around them might be must enough to convince me not to spend any more time around them than I had to. So there's another frivolous reason to condemn this silly idea.

But the central one remains: what is church for? For rubbing off on people? Or for being a place where, when you go there, they have to take you in? Which is better, but should it ever be a place where you have to go, or else?

Not my church; not the church I'm a member of, or the church I'm (if ever again) the pastor of.

How Christ the King Should Respond to Bishop Vono

Two years ago, the parishioners of St. Mark's-on-the-Mesa in Albuquerque left the Diocese of Rio Grande to found the Anglican Church of Christ the King. In doing so, they left everything behind them, including real property, furnishings and endowments worth over $ 2 million.

For the Diocesan Council of Rio Grande, however, that was not enough. It seems that St. Mark's had pledged a diocesan contribution for 2009 of $100,000 in quarterly installments, and that only half had been paid by the time of the congregation's departure. So they met and passed a resolution, which resulted in Bishop Michael Vono's writing the following letter (yes, this is real, and not a spoof -- Johnson's First Law of Episcopal Thermodynamics strikes again):

August 31, 2011
Dear Father Weber,

RE: St. Mark's on the Mesa, Albuquerque
Fair Share Obligation, Third Quarter 2009

I pray that this finds you well in the Lord! Summer is always such a gift in the ministry, a time for reflection, refreshment and anticipation for the end of the liturgical year.

On July 12 of this year, the Diocesan Council had a meeting here a [sic] Diocesan House. At that time, a group from St. Mark's-on-the-Mesa, Albuquerque came before the Council to request forgiveness for their Fair Share obligation from the third quarter of 2009. As I am sure you are well aware, it was during this time that a good number of the clergy and congregation at St. Mark's-on-the-Mesa left to form a new congregation, leaving the remaining members with quite a financial and emotional burden to carry. What follows is the motion as it was amended and passed that afternoon.

Motion, that the -$25,000 Fair Share obligation for St. Mark's on-the-Mesa, Albuquerque for the third quarter of 2009 be forgiven. Moved and seconded to amend the motion by replacing it with the following: that the -$25,000 Fair Share obligation for St. Mark's-on-the-Mesa, Albuquerque for the third quarter of 2009 be adjusted to $5,000 and that the Diocesan Council write a pastoral letter to the leadership of Christ the King Anglican Church appealing to them to cover $20,000 of the original Fair Share obligation for St. Mark's on-the-Mesa, Albuquerque for the third quarter of 2009.

The amendment passed. The amended motion passed.

As you can see, it was the decision of Council to hold St. Mark's-on-the-Mesa responsible for the entire Fair Share payment for the third quarter in 2009, requesting that the burden be split between the members that left and the members that stayed, dividing the responsibility roughly along the lines of how the congregation self-selected.

I would ask that you would prayerfully consider accepting the responsibility of paying the portion of the Fair Share that was required by the Episcopal Diocese of the Rio Grande.
If you have any questions regarding this matter, please contact me here at Diocesan House, or in my absence, Mr. Fred Winter or Ms. Lisa Katz-Ricker, 505-881-0636.

Your brother in Christ,
The Right Rev'd Michael L. Vono
IX Bishop, Diocese of the Rio Grande

cc: Ms. Debi Lester
Ms. Lisa Katz-Ricker, Business Manager
Mr. Fred Winter, Assistant Treasurer
The Rev'd Canon Kathleene McNellis
The Rev'd Canon Daniel Gutierrez
The Most Rev'd Robert Duncan

There is no record yet of any official response by the congregation. Permit me, therefore, to make a modest suggestion that Father Weber and his vestry respond as follows:

Dear Bishop Vono:

How nice it was to hear from you after such a long time! With you, my congregation and I are enjoying the waning days of summer -- "a time for reflection, refreshment and anticipation for the end of the liturgical year", as you say.

And I have to confess, your letter of August 31 does find us "well in the Lord." Now that we no longer have to tolerate Biblical revisionism and heresy at the highest levels of our church, we are experiencing Christ's blessings upon us more richly than ever before.

I was so glad to hear that your Diocesan Council still meets regularly, and that they still address weighty matters of concern to the whole Diocese, such as everyone's Fair Share obligation. In response to their request, which you so forthrightly conveyed to us, our vestry met, and after giving it the prayerful consideration which you asked of them, they passed unanimously the following Resolution:

Whereas, from January 2008, following the departure of Bishop Steenson to join the Roman Catholic Church, to September 2009, when the overwhelming majority of the parishioners of St. Mark's-in-the-Mesa decided that they, too, had to leave the Episcopal Church, our parish gave the total sum of $150,000 to the Diocese of the Rio Grande; and

Whereas, during that same time period, the congregation spent a further total of $100,000 on maintaining and repairing its building before turning it over to the Diocese of Rio Grande; and

Whereas, the estimated value of the real and personal property (including endowments) which this congregation left to the Diocese of Rio Grande as a result of its departure was in excess of $2,000,000; now, therefore,

Be it resolved that since this congregation has given far more to the Diocese than it has received, it is more than abundantly blessed, and does not consider that it needs still more blessings through additional works of charity for the Diocese.

The vestry has asked me to convey to you and your Diocesan Council its sincere thanks for the opportunity for additional blessings which it so thoughtfully bestowed upon us, and its deep regret that, as our cup now overfloweth, we could not avail ourselves of your generous offer.

In the name of Christ the King,

The Rev. Roger Weber

Rector, Anglican Church of Christ the King

cc: Ms. Debi Lester
Ms. Lisa Katz-Ricker, Business Manager
Mr. Fred Winter, Assistant Treasurer
The Rev'd Canon Kathleene McNellis
The Rev'd Canon Daniel Gutierrez
The Most Rev'd Robert Duncan

Sometimes the only response to an adversary's overweening chutzpah is to meet it with warmth and complete charity, "for so you will heap coals of fire on his head, and the Lord will reward you."

[UPDATE 09/26/2011: Martial Artist's comment (see below) reminded me of one of the sharpest of responses ever made by a composer to one of his critics, which I had occasion to link to in my post "On the Proper Treatment of Arrogance." Here is the basic story:

One of the most magnificent witticisms from the arts was by German composer Max Reger (1873-1916). Responding to a negative review by Rudolf Louis of his Sinfonietta (1906), Reger is said to have shot back: "Ich sitze in dem kleinsten Zimmer in meinem Hause. Ich habe Ihre Kritik vor mir. Im nächsten Augenblick wird sie hinter mir sein." (I am sitting in the smallest room of my house. I have your review before me. In a moment it will be behind me.)

I do not want to undermine the Christian charity of my earlier suggestion to the Anglican Church of Christ the King, but, still -- one has to say, Reger's response was brilliant, and deserves its place in the quotation books!]

Heat v. Light

This actually almost makes sense, if you think about this first:

Indeed, to be against the death penalty is to be against all such executions, whether the prisoner is innocent or guilty. Raising doubts about individual guilt, as effective as it may be in individual cases, will not stop the death penalty, but at most multiply procedures instituted to give a greater and falser assurance that the executed must be guilty.

I remember, while in law school, in the late 1970's,it was assumed that the death penalty had been effectively nullified by the Supreme Court because of the concern that discretionary procedures led to discrimination against the poor and racial minorities. The result was an abandonment of discretionary procedures, and a resumption of execution--and, strangely, it was still the poor and racial minorities who disproportionately suffered.

Douthat's argument is generating a great deal more heat than light, but then, it's not a terribly coherent argument. The heart of it seems to be this:

Simply throwing up our hands and eliminating executions entirely ... could prove to be a form of moral evasion -- a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked....

This point was made well last week by Pascal-Emmanuel Gobry, writing for The American Scene. In any penal system, he pointed out, but especially in our own -- which can be brutal, overcrowded, rife with rape and other forms of violence -- a lifelong prison sentence can prove more cruel and unusual than a speedy execution. And a society that supposedly values liberty as much or more than life itself hasn't necessarily become more civilized if it preserves its convicts' lives while consistently violating their rights and dignity.

Which rightly draws derisive questions about why we can't do both, but I think Douthat has inadvertently touched on the question of how we do both, and that's where the context provided by Rick's comment comes in.

At one time we depended on the evil of discretionary procedures to flush out the death penalty; we even declared it dead ("Death, thou shalt die!"). Not so fast, of course; and now the Troy Davis case seems to mean the death penalty shall die again because the system cannot tolerate the death of the innocent.

Well, of course it can. It tolerates the incarceration of the innocent. Just ask the Innocence Project. Now, should it do so? No. But the system is not established to do justice; it is actually established to get convictions. The fact that our prisons are crowded "can be brutal, overcrowded, right with rape and other forms of violence," is a consequence of this efficiency, as much as it is a result of our neglect of prisoners (out of sight, out of mind). Douthat actually makes this point, although most of his harsher critics seem to have overlooked it:

Instead of dismissing this point of view as backward and barbaric, criminal justice reformers should try to harness it, by pointing out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms. Americans should be urged to support penal reform not in spite of their belief that some murderers deserve execution, in other words, but because of it — because both are attempts to ensure that accused criminals receive their just deserts.

What's to disagree with here? Well, maybe this, the first two sentences of the next paragraph:

Abolishing capital punishment in a kind of despair over its fallibility would send a very different message. It would tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice.

Douthat is jumping off a moral cliff there, and trying to take us with him. He has a point: if we can't reform the system, then the alternative seems to be to declare the system broken and irreparable, but be fair: how far has reform of Washington gotten? And how many people don't think it is broken beyond repair, and the only solution is to start over again with new political parties, or even new, and even more ideological, politics? Douthat has thrown up his hands and declared this state of affairs the norm for public policy and the discussion of public issues. But does it need to be?

Interestingly, Douthat has implicitly put the death penalty at the heart of the criminal justice system. I agree with him on that. And yet we don't have to simply throw up our hands and toss out all claims to the death penalty.

First, this isn't an issue as fundamental to the republic as federalism or states rights. No one complains today of the heavy hand of the Supreme Court in this arena (for better or worse).

Second, the issue is a question of justice, not just of punishment: it's high time we had a public discussion about the distinction between those two.

Third: we cannot rely on any system to do this work for us: the death penalty will not fall of its own weight, it must be actively and openly rejected, and rejected on the grounds of an understanding of justice that doesn't allow a death penalty to be available, not a vague idea that it is just too unfair or personally debilitating in its execution (i.e., either that it is a discretionary procedure that results in unfairness, or that it is pre-meditated murder which takes a toll on the executioners. Society will always be unfair and will always find willing executioners.).

The latter is the discussion even Douthat doesn't want to have, and is the weak reed on which his argument rests: that any such outcome will itself depend again upon the system to do the work for us. In that he is right: so long as we expect someone else to do something good, nothing good will ever happen.

And probably, the situation will even get worse.

Church or jail?

Watch out if you go to Bay Minette, Alabama, and are caught doing some sort of minor crime because you will be given a choice. Church or jail.

According to WKRG-TV, starting this week authorities will give non-violent offenders in that community a new choice: Go to jail, or go to church every Sunday for a year. It’s called Operation Restore Our Community and fifty-six churches have signed on.

If offenders select church, they will be allowed to pick the place of worship but must check in weekly with the pastor and the police department.

If the one-year church attendance program is completed successfully, the offender's case will be dismissed.

Bay Minette Police Chief Mike Rowland says the program could change the lives of people heading down the wrong path.

We’ll see if this idea works. Church or jail? Which would you choose? Personally, I’d have to ask which church. Jail might be preferable.

Jesus tells a story about two sons who are asked by their father to go out into vineyards to work. The first son is the one who "I will not go," but later changes his mind and goes. The second son is the one who says he will go but does not go. He then turns to his critics and asks which one of the two does the will of the father? They of course say that the first son, in the end, does the will of the father. In their answer, the super-religious show that what is really important is what a faithful person does that’s important, not just what they say.

A bishop and teacher of the early church named Chrysostom wrote that the Christian is like the son who at any hour turns and chooses to do the will of the father; to go out into the vineyard and work. The Christian is the son who is the missionary.

But I think there is a deeper message that Jesus is offering. While it is certainly true that God wants us to go out into the world—the vineyard—and do God’s work…that is, to do mission… there is something else going on here.

The Good News is that it is never too late to follow Jesus and to do God’s work in the vineyard. God will embrace the son who turns and chooses in the end, no matter what they have been doing, to become a member of the community of faith.

Today’s Gospel story only appears in Matthew, and it reminds me of another one of Jesus’ stories, the one about the prodigal son that is only in the Gospel of Luke. That son squandered everything and came home expecting to grovel and scrape as a slave but instead is welcomed with open arms. Today, the son in Matthew’s Gospel who says “no” but then turns around choosing to do “yes.” He is a prodigal, too. He comes to his senses. He does the work he was asked to do. In both Gospels, a son turns around. In both cases, repentance—turning around—shows that the life of faith is as much an act of the will as is act of the heart. Living faithfully is depends on the deliberate choice to live in concert with God—especially when we don’t “feel like it.” Faith it turns out is both an act of the heart and an act of the will. And that means that we choose not only to believe but we choose how to act on those beliefs. Before long, we learn that our faith is not faith until we choose to act faithfully.

That’s something the Alabama police chief and judge may, in their good intention, may have missed. Or maybe it’s what they hope for. But try as we might, you can’t force people to believe—and the vineyard is not just for sitting and listening to the farmer talk about grapes. They’ve solved the “will” problem—church or jail—but the “heart” and the “action” part--what people do with their belief—they can’t control that. And that makes all the difference.

I wonder about the 56 churches that signed on this program. I wonder if they are ready for the local check-kiter, petty thief, or the chronic “drunk and disorderly” to actually be sitting in their pews. Because, I don’t know about you but I notice that sometimes we get nervous when someone who once said “no” and who now says “yes” to God and is trying to walk a new way comes and sits among us. We are not sure if we can believe it and we have a hard time forgetting that original “no.” And how we act towards people who are new to church…let alone faith…makes all the difference in that person’s success in living out a new-found, but hard-won, faith.

Have you ever noticed that there are two doors in many churches—ours included—a front door and a back door? Both are painted red…for welcome…which is good. And many of us come in the back door because it’s near the parking lot. But there are some people—actually quite a few—who come through those back entrances all the time who would never think of coming in the front doors…the nice carved ones that lead to this sanctuary. They are people who come to the four twelve-step groups that now meet here every week or who eat in the soup kitchen. They are people, especially in the AA groups, who are attempting one step at a time to turn their lives around. Who are attempting after a life of saying “no” to finally say “yes” to God. And yet… sometimes we “front door” Christians have a hard time accepting that those people who have come in another way really belong with “us.” Which makes sense, because they are not so sure either they are worthy to sit in here with us.

Jesus tells us in today’s Gospel that we are all of us sent into the same vineyard. Sooner or later, we all have to come to terms with the fact that all of us in word or deed have said “no” to God somewhere along the way, and all of us have had to come to our senses and choose to follow him anyway. When you get right down to it, our stories are not so different after all.

Don’t be shocked by this: everyone sins. That’s because we are human. We promise that we will strive to live faithfully and we know that we will fail. We will say “yes” and do “no” At the same time, in our baptismal covenant we say that "when" we sin we will return—we will say “no” and then do “yes.” Christians more than anyone know (or should) that we are not perfect. At the same time, we Christians rejoice when the sons and daughters of God who have led life unconscious of God, or who have led lives saying "no" turn and join the other workers in God’s vineyard. It should not take a local judge to tell us this, but we, the church, exist for those who do not yet belong. We exist so that the vineyard is there ready for the latecomer and for the newcomer to join in God’s gracious harvest.

The Holy and the Broken Hallelujah

So for several months now--since a friend of mine referenced it online, as a matter of fact--a particular song has been rattling around in my brain, inviting me to embrace its complexities.

I refer to Leonard Cohen's classic song "Hallelujah." One of the great things about the song is that there is no one correct version of it--the lyrics vary wildly in order of the verses and in content. (This is true, by the way, whether Cohen himself is singing it, or another musician is covering it. In fact, covers tend to be more standardized--John Cale, Jeff Buckley and Rufus Wainwright all use pretty closely similar versions).

Here is, for example, what is posted on YouTube as the "original studio version":



Note the verse:

You say I took the name in vain
I don't even know the name
But if I did, well really, what's it to you?
There's a blaze of light in every word
It doesn't matter which you heard
The holy or the broken Hallelujah

Won't be hearing that again.

Ok, let's go to John Cale:



(Quite possibly my own favorite version, though the next contender is close)

And, just for good measure, a really good late Cohen performance:



So, we have a verse introducing the story of David, singing before the Lord--but with a bitter edge. Then, the story of David and Bathsheba--"You saw her bathing on the roof/Her beauty in the moonlight overthrew you." And, just to complicate matters more, the story blends with that of Samson and Delilah--"she tied you to a kitchen chair, she broke your throne and she cut your hair". Bathsheba may have a verse herself--"I've seen your flag on the marble arch/but love is not a victory march," sometimes feels like a wry observation from a woman whose preferences were not, shall we say, consulted.

The other verses, in counterpart, speak of the bitterness of betrayal, the seeming meaninglessness life and love itself ("maybe there's a God above/but all I've ever learned from love/is how to shoot at someone who outdrew you"") can present at times, and our own crippling inability to "only connect." And throughout, the narrator refuses to accept the stereotype of an easy festal shout of "Hallellujah!" Life hurts, bucko. You may give that shout--but not easily, not without the experience of desolation that the spiritual life doesn't immunize us from.

The biblical references frame the song--in some versions they follow each other, in others not. They invoke Scripture but not in a simple re-telling--the scriptural story goes back and forth with a narrator who (as the verses quoted above shows, and ) is pretty jaundiced about life, and, as this and other verses show, about love--sacred at times (the "Holy Dove was moving too"and yet so transitory. But then what a finish--in the versions that use it:

I've done my best,
it wasn't much.
I couldn't feel
so I learned to touch.
I've told the truth,
I didn't come here just to fool you
And though it seems it all went wrong,
I'll stand before the Lord of Song
with nothing on my tongue but Hallellujah

George Herbert has gotta love that. Seriously, beat this as a theological rumination--it's a testament of a soul battered, not broken, hurt by life but choosing to love, and appearing before the Great Mystery with truth and a kind of hell-busted joy.

Après Moi, le Déluge: Executive Council Fires on South Carolina

The Constitutional issues splitting the Episcopal Church are at last coming to a head, so there is at least that much for which, as an Episcopalian, to be thankful. But the tone and tenor of the confrontation do not bode well for the future of the Church.

As readers of this blog already know, it is an undeniable fact that the only members of the unincorporated association which currently calls itself "the Episcopal Church in the United States of America" are its dioceses. Moreover, history provides incontrovertible evidence that the Diocese of South Carolina was a legal entity whose existence preceded that of (P)ECUSA by at least eight years or more. The autonomous Diocese of South Carolina (as it then indisputably was) helped to form the association that is (P)ECUSA in 1789. It did not thereby, somehow in the act of formation, disappear or dissolve into the maw of some larger entity -- as subsequent history showed when, during the Civil War, the Diocese of South Carolina withdrew from PECUSA and joined the Protestant Episcopal Church of the Confederate States of America.

This is such a crucial preface to what follows that I shall restate it: only dioceses, in their given territories, are legal members of the association which is the Episcopal Church (USA). As such, they are free, under the First Amendment, to join it or to leave it at their pleasure, through duly enacted amendments to their governing documents -- which ECUSA is, again under the Constitution's First Amendment, powerless to annul or forbid.

Now comes an utterly supercilious pronouncement by an official on behalf of ECUSA's Executive Council (citing the "decision" of one of its joint standing committees) with regard to the Diocese of South Carolina, and which purports to "declare" certain acts taken by a member diocese to be "null and void". [A tip o' the Rumpolean bowler to the Rev. Steve Wood's blog, which in this instance was authored in his temporary absence by Greg Shore.]

Oh, really? And just who, pray tell, is this supra-diocesan "Executive Council", or its "Joint Standing Committee on Governance and Administration"?

Answer: the Executive Council is not an official body of the Episcopal Church (USA), because it is neither a constituent member of that association (only dioceses are members), nor is it a creature of ECUSA's Constitution, which does not mention it in any of its Articles. And by definition, a committee created by the Executive Council to operate under its auspices, whether sanctioned by canon or not, can attain no supra-diocesan status, either.

Instead, the Executive Council is nothing more than a glorified Board of Directors, to whom additional express duties have been delegated (and those duties emphatically do not include ruling on the constitutionality vel non of amendments by dioceses to their governing documents). The entity of which it is the Board of Directors is not the unincorporated association which is the Episcopal Church (which has no Board), but instead is the New York charitable corporation which calls itself "the Domestic and Foreign Missionary Society." That Corporation's articles were established by Canon, and the role of the Executive Council as its Board was likewise established by Canon. But I repeat: no mere canon of the Church can elevate the Board of Directors of a separate religious corporation, let alone one of its joint committees, into a supra-diocesan authority within the association of dioceses that form the Episcopal Church (USA).

Let me give you an ordinary-day analogy: the claim by the Executive Council to be able, by one of its resolutions, to "nullify" a duly adopted amendment by a diocese to its own Constitution and Canons is akin to the Board of the Book-of-the-Month Club claiming the power to nullify your neighborhood book club's bylaws, just because all of your book club's members were also subscribers to the Book-of-the-Month Club. They would never claim any such legal authority, and it is just as preposterous for the Executive Council of the DFMS to claim such authority with regard to members of ECUSA.

There is a reason, after all, why an unincorporated association like ECUSA has a Constitution. It embodies the terms of the contract between and among its several member dioceses. All of those members are signatories to the contract, and no non-member has any ability to sign or otherwise modify the terms of that contract.

The Executive Council, I repeat, is neither a member of ECUSA, nor a body created by the contract among its members, which is the Constitution. Another body created by that contract, which we call General Convention, chose to form a non-profit religious corporation under the laws of the State of New York, so as to be able to receive and hold gifts of property and money from Church donors. (Under New York and common law then in effect, an unincorporated association like the Protestant Episcopal Church (USA) was legally incapable of receiving gifts, or of holding title to property.)

That corporation so formed by canon of General Convention needed a board of directors under New York State law. Initially, the Canon authorizing the Corporation provided that the Board consisted of 24 members elected at each meeting of the DFMS, while all of the Church's bishops were deemed "Vice Presidents" of the Corporation. Those provisions, however, became unwieldy with the passage of time, and various intermediate solutions were adopted, only to be abandoned at subsequent Conventions and replaced by still other substitutes.

Finally, in 1919, General Convention proposed the creation of a body which it called the "National Council", which would function as the Board of the DFMS. The enactment of what became Canon 60 in that year described the powers and duties of the Council, in these words:

Sec. 2. The Presiding Bishop and Council shall exercise all the powers of The Domestic and Foreign Missionary Society . . . and have charge of the unification, development, and prosecution of the work of Missions, Church Extension, Religious Education, and Christian Social Service; of the performance of such work as may be committed to them by the General Convention, and of the initiation and development of such new work between the sessions of General Convention as they may deem necessary, subject, however, to the provisions of the Constitution and Canons . . . .

These duties and powers of the now-yclept "Executive Council" have essentially remained the same ever since. Current Canon I.4.1 provides in part:

Sec. 1 (a) There shall be an Executive Council of the General Convention (which Council shall generally be called simply the Executive Council) whose duty it shall be to carry out the program and policies adopted by the General Convention. The Executive Council shall have charge of the coordination, development, and implementation of the ministry and mission of the Church.

(b) The Executive Council shall be accountable to the General Convention and shall render a full published report concerning the work with which it is charged to each meeting of the said Convention. The report shall also include information on the implementation of all concurred resolutions of the previous General Convention calling for action by the Executive Council, by its officers and staff, and by the jurisdictions of the Church.

. . .

(e) The Council shall exercise the powers conferred upon it by Canon, and such further powers as may be designated by the General Convention, and between sessions of the General Convention may initiate and develop such new work as it may deem necessary. It may, subject to the provision of this Canon, enact By-laws for its own government and the government of its several departments.

(f) In its capacity as the Board of Directors of The Domestic and Foreign Missionary Society, the Council shall have the power to direct the disposition of the moneys and other property of said Society in accordance with the provisions of this Canon and the orders and budgets adopted or approved by the General Convention.

Needless to say, any powers conferred on the Council by Canon cannot override the powers of the several Dioceses under the Constitution. Although liberals like to argue otherwise, based on no verbal or historical evidence whatsoever, the documented history of the Church and its General Convention establishes conclusively that its member Dioceses are sovereign and autonomous, except only as they have severally agreed to be bound by the provisions of the Constitution.

Liberals like to argue, for example, that to "accede unconditionally" to the Constitution and Canons of ECUSA, as a Diocese sometimes (but by no means always) does on coming into union with ECUSA, binds the Diocese perpetually to be a member of the association which is the Church. Such an argument reads far too much into that language, however, because such a reading would assert that the Episcopal Church is above (or somehow exempt from) the restrictions of the First Amendment. Under the language of that Amendment, as construed by the Supreme Court, the Constitutional guarantee of "freedom of association" includes both the right freely to join (religious and other) organizations and associations, as well as the right to leave them. In short, even were there a written clause in ECUSA's Constitution forbidding members from withdrawing once they have joined -- and I emphasize that there is no such clause -- it would be unconstitutional, and unenforceable in any court of the United States.

The recent actions of the Executive Council are thus delusional, and on a grand scale. They arrogate to the Council a power which it never has had, and never could have. The fact that the Council believes it could exercise such legal power shows what terrible legal advice it is currently receiving -- legal advice which must be wholly colored by the plain need of the Presiding Bishop's Chancellor and his law firm to maintain the fiction that all member dioceses are subordinate to some ethereal, non-existent entity which is "the Episcopal Church." The obvious appeal is to the analogy of the United States -- which, unlike ECUSA, has an executive branch and a judicial branch which are co-equal with its legislative branch, and the three branches thus form a single, unitary political entity in the eyes of the law.

But at the head of ECUSA, there is no such unitary entity. There is only an occasional legislature, which meets once for ten days every three years and then dissolves, never to assemble in the same form, and with the same legislators, ever again. There is no supreme ECUSA judiciary, empowered authoritatively to construe and interpret the Constitution and Canons -- witness this very current dispute: there is no "court" within ECUSA that can authoritatively pronounce just what are the delegated powers of the Executive Council, and have that pronouncement deemed "binding" on the whole Church.

Likewise, there is no (at least not yet) President of the Episcopal Church, with the power to sue and be sued on behalf of the Church, to sign binding contracts on its behalf, and otherwise to enforce its laws (canons) in every Diocese.

(Side note: when was the last time the Episcopal Church [or its Presiding Bishop. acting on its behalf] ever prosecuted anyone, anywhere, for violating Canon II.1, which provides in full -- and I quote:

All persons within this Church shall celebrate and keep the Lord's Day, commonly called Sunday, by regular participation in the public worship of the Church, by hearing the Word of God read and taught, and by other acts of devotion and works of charity, using all godly and sober conversation.

I rest my case.)

In short: this latest action by the Executive Council is itself a nullity, because it is not authorized by any provision in ECUSA's Constitution. Those who make their rules must live by their rules, but ECUSA's Presiding Bishop, her Chancellor, and its Executive Council are deluded otherwise, because the House of Bishops and the House of Deputies have let them get away with it -- for too long!

If, therefore, this is ECUSA's equivalent of the opening salvo on Fort Sumter, then prepare for civil war.

Scriptural Exhaustion or Inclusion

There are two primary ways to read Scripture. Both are “literal” in that they focus on the text itself, but they differ in how they attribute meaning to the text. The exhaustive view believes that a single correct reading excludes any other and exhausts the possibilities of meaning; the inclusive acknowledges that a given text may be capable of many meanings, including that discerned by the exhaustive school, but remaining open to meanings not yet discerned. The exhaustive view asserts clarity, often assumes perspecuity, and a univocal certainty. The inclusive accepts a degree of ambiguity, recognizes that texts convey meaning, that the meanings can be manifold, and the readings provisional.

The inclusive manner of reading is that of the rabbinic and the Patristic eras, of the Catholic tradition and (ironically) also of liberal protestantism; the exhaustive is represented in several strands of protestant conservatism. The inclusive manner allows the church to hold a number of interpretations, and part with those that science or reason eventually show to be untenable. The exhaustive, in the long run, often finds itself unable to navigate the waters of reality, having run aground, not on the text, but on the inflexibility and failure of their own interpretations to offer a credible word to a skeptical world.

Tobias Stanislas Haller BSG

"Doubt" is not a thing

But it should be:

In 2007 the Georgia Board of Pardons and Paroles, the body which has the final say in the state on whether executions should go ahead, made a solemn promise. Troy Davis, the prisoner who is scheduled to die by lethal injection at 7pm local time on Wednesday, would never be put to death unless there was "no doubt" about his guilt.

The Guardian article goes on to list 10 reasons why Troy Davis should not have been executed, based on "doubts." As Rachel Maddow noted last night, the convicted murderer of James Lee Byrd was executed in Texas last night, too. But no vigil was held to mark his passing, no last minute stay was requested from the Supreme Court, no articles were written in the Guardian or in other papers protesting his execution, no cable channels covered the act as if it were a funeral (MSNBC was practically draped in black crepe last night).

Should we have been more concerned about the death of Lawrence Russell Brewer? Ross Byrd, James Byrd's son, thought so.

“You can’t fight murder with murder,” Ross Byrd said. “Life in prison would have been fine. I know he can’t hurt my daddy anymore. I wish the state would take in mind that this isn’t what we want.”

I'm not trying to equate the two events, except to point out our own public ambivalence about crime and punishment. Somehow it seems easier to defend Troy Davis against execution for a crime so many are now so sure he didn't commit, than it is to protest the execution of a white supremacist like Lawrence Brewer for a crime so hideous we still don't want to think about it (there was forensic evidence that James Byrd was alive through the ordeal almost until he was decapitated by the ordeal). But that's the real problem with protesting executions: not that they are hard to protest, but that the situation itself is so complicated.

In the case of Troy Davis, many were proclaiming his innocence, based largely on reports that witnesses 22 years later had recanted their stories. But who, after 22 years, wouldn't reconsider what they knew then and whether or not they were accurate? One of the grave weaknesses of the criminal justice system is the reliance on eye-witnesses. But once the justice system has relied on those witnesses, under what conditions does it reconsider their testimony? When the witnesses change their minds? When, then do we ever decide a conviction is final, and the case is closed? Never? A system like that is no system at all.

On the other hand, if there is no system for review, no chance to correct errors, there is no justice. So the system has to have a stop; but that stop cannot be arbitrary.

I'm not a criminal lawyer, nor an expert on the laws and procedures surrounding death penalty cases. I don't know why some people are released from prison based on new evidence, and other people are executed in the face of new evidence. But the burden the death penalty puts on the "justice" of the criminal justice system, is shown by the Troy Davis case to be too heavy a burden to bear. We are warping justice out of any semblance of that goal when we murder people in the name of the state and "justice done."

The former warden of the Georgia Diagnostic prison was on MSNBC last night and said, from his experience overseeing executions in that prison, that executions are "pre-meditated murder." Those were his word. Some commentators on MSNBC last night were critical of the US Supreme Court in this case, especially as it wouldn't issue another stay of execution for Mr. Davis in a case he was clearly winning in the court of public opinion. But my ire was, and is, directed mainly at the Georgia Board of Pardons and Paroles, who could have granted clemency in this case, and refused to do so. The Supreme Court acted as I expected them to. The system acted, as best I can tell, as it has to (after 22 years, what witnesses might not change their minds, what jurors might not decide differently? Who in prison doesn't say they are innocent?).

There was an issue of ballistics evidence that even the Georgia Bureau of Investigation said was invalid evidence. I don't know why new evidence in this case never led to a new trial, but new trials based on new evidence are notoriously difficult, and must be, else criminal convictions would never be final. It is a matter of procedure. A judicial system must have procedures, otherwise it is merely an ad hoc arrangement responding to those with the greatest public sympathy at the time, or the loudest megaphone, or the mere whims of those on the various judicial benches. Although "ad hoc" seems to perfectly describe the systems in states like Georgia and Texas where a Board of Pardons and Paroles is expected to act as a dispenser of clemency. Funny, they never seem to think dispensing it is really such a good idea.

But the finality of a death sentence changes everything. And the system still doesn't recognize that it changes the situation enough that the system simply cannot sustain the burden of killing another human being in cold blood.

And that is the problem.

O brave new world

That has such creatures in it!

This successful exercise in autonomous robotics could presage the future of the American way of war: a day when drones hunt, identify and kill the enemy based on calculations made by software, not decisions made by humans. Imagine aerial “Terminators,” minus beefcake and time travel.

The Fort Benning tarp “is a rather simple target, but think of it as a surrogate,” said Charles E. Pippin, a scientist at the Georgia Tech Research Institute, which developed the software to run the demonstration. “You can imagine real-time scenarios where you have 10 of these things up in the air and something is happening on the ground and you don’t have time for a human to say, ‘I need you to do these tasks.’ It needs to happen faster than that.”

The demonstration laid the groundwork for scientific advances that would allow drones to search for a human target and then make an identification based on facial-recognition or other software. Once a match was made, a drone could launch a missile to kill the target.

Before James Cameron's "Terminator," there was a Philip K. Dick story about killer robots, which didn't involve time travel or happy endings. Machines had been created to kill people, and the machines were very, very good at it. So much so that in the world of Dick's story, human beings had largely abandoned the planet and moved to the Moon, the better to oversee the slaughter of the enemy on earth. Most of the killing machines, of course, looked like machines. But in the story, the machines (which were already producing the killing machines; if you can manufacture machines that can kill, why not manufacture machines to manufacture the machines that can kill?) start producing machines that look human (terminators!) so they can get past all the defenses humans use to keep the machines from killing them (the killing machines aren't terribly discriminating; a human target is a human target. Much more efficient that way.)

At the end of the story, it turns out the machines have produced several different types of "human" killing machines, and one of them boards a rocket for the Moon before the people on the Moon can be warned of this new development. Like I said, Dick doesn't deal in the happy endings Hollywood prefers. And yes, it's quite a leap from programmed drones to anything resembling the world of the Terminator or Dick's nightmare.

But tell me again why we are even thinking about going there. Is it really because it's more efficient, because "It needs to happen faster than that"?

This is when "where your treasure is, there will your heart be also" can be a frightening insight.

Death Works, Inc.

The point is, ladies and gentleman, that death -- for lack of a better word -- is good.

Death is right.

Death works.

Death clarifies, cuts through, and captures the essence of the [American political] spirit.

Death, in all of its forms -- death [instead of] life, [instead of] money, [instead of] love, knowledge -- has marked the upward surge of [power].

And death -- you mark my words -- will...save...that...malfunctioning corporation called the USA.

Don't know what made me think of that. Oh, wait, yes, yes I do.

New Signs of Trouble for the Dennis Canon

As readers of this blog are aware, your Curmudgeon is no fan of the Dennis Canon, which I like to call the Episcopal Church (USA)'s Trojan Horse. It has spawned a disproportionate amount of Church property litigation, because it operates by stealth, and springs onto the back of a parish just at the time when it is most vulnerable, having decided to take the final step to disaffiliate from ECUSA. All of a sudden, the Bishop of the Diocese swoops down with his attorneys, and orders the congregation to vacate its building, and leave everything behind, from the altar candlesticks to the bank accounts and pew cushions. "Because you no longer are operating within the Episcopal Church," he says, "Canon I.7.4 [the Dennis Canon] declares that all of your property is now forfeit to the Diocese, since it was always held in trust for this Diocese and the Church."

Such a claimed operation for the Canon comes as a surprise to many congregations who thought that their years of paying for the acquisition, construction and maintenance of their building, plus a deed in their name, meant that they owned it. Furthermore, every State in the United States has a law which says that trusts in real property can be created only by a writing signed by the owner of the property. The Dennis Canon operates in reverse: it purports to create a trust in church property without the owner's signature, and just on the authority of ECUSA's General Convention. As I noted elsewhere, it purports to operate as though, upon you and your spouse's joining the Democratic Party, your house and all your worldly goods become forfeit to the Party should you ever decide to become a Republican.

States such as California and New York are lost causes, however. Although they have the same statute regarding how trusts are created as does every other State, they also have statutes which create special exceptions to that rule for national churches like ECUSA. The exception allows such national churches to create trusts in parish properties unilaterally, without the individual parishes' consent, by providing for such trusts in their governing documents. The highest courts in California and New York have accordingly upheld the validity of Dennis Canon trusts against individual parishes who decided to leave the Episcopal Church (USA).

To date, the only State to rebuff clearly and unequivocally the idea of a Dennis Canon "trust" in church property has been South Carolina. In cases decided by their Supreme Courts, the States of Kentucky and New Hampshire have also indicated that they might not ratify the creation of a trust by a trust beneficiary, as opposed to by the property's actual owner, since they have declared that they would apply a strict "neutral principles" approach. For example, in Berthiaume v. McCormack, 153 N.H. 239, 891 A.2d 539 (2006), the New Hampshire Supreme Court wrote that a court must “consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use or disposal of church property.” (Id. at 248.) It justified this ranking by holding that such an approach “is consistent with [the] rules governing the resolution of property disputes generally. In resolving such disputes, [courts] consider extrinsic evidence and the circumstances surrounding a conveyance to determine the parties’ intent only if the language of the relevant documents contains either patent or latent ambiguity.” (Ibid. [citations omitted].) The Court went on to decide that as title to the property in question was held solely by the Roman Catholic Bishop of Manchester, he could sell it to another denomination without having to keep it in trust for Catholic parishioners.

The Presbyterian Church (USA) has also been taking a number of property disputes to court, with mixed results. It has a provision in its governing Book of Order which tries to accomplish the same goal as the Dennis Canon -- to ensure that all congregational property is held in trust for the larger presbytery of which the congregation is a part.

Now comes word that an appellate court in Louisiana has rejected that Church's argument that its Book of Order, in and of itself, was adequate to establish a trust, in the Presbytery's favor, in the property of a local congregation. In its opinion, which upheld title in favor of the parish of Carrollton against the claims of the Presbytery of Southern Louisiana, the First Circuit Court of Appeals wrote (beginning on p. 9):

Moreover we agree with both Carrollton and the district court that, even if we were not persuaded that Carrollton is exempt from the Book of Order's express trust provision, Louisiana trust law would apply to this dispute over Louisiana property. In Jones v. Wolf, 443 U.S. at 602, the United States Supreme Court recognized a state's "obvious and legitimate interest in the peaceful resolution of property disputes and in providing a civil forum where the ownership of church can be determined conclusively." The Court went on to note that application of the neutral-principles approach relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." Jones, 443 U.S. at 603. Although the Court opined that a trust in favor of a general church could be created by the constitution of the general church being made to recite an express trust provision in favor of the denominational church, the Court noted "the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form." Jones, 443 U.S. at 606 (emphasis added). We are not persuaded by the Presbytery's contention that the requirement of a "legally cognizable form" was met simply by the PCUSA's amending its constitution.

The subject property is situated in Louisiana and applying neutral principles of law we find that any purported trust would be subject to the form requirements set forth in Louisiana's Trust Code. It is undisputed that those form requirements have not been met. The public records relating to the subject property reflect that the property is owned by Carrollton. There is no mention of the property being held in trust in the deeds themselves and it is not disputed that no trust instrument relating to the property has been filed of record in Orleans Parish. See La. Rev. Stat. Ann § 9:2092.

This is a straightforward application on the Statute of Frauds to church property disputes, exactly as was done by the Supreme Court of South Carolina. Last week also brought us news of the oral arguments in a church property case which reached the Supreme Court of Indiana. I had already written here about the trial court's decision in the case of Olivet Evangelical Presbyterian Church of Evansville v. Presbytery of Ohio Valley. That decision had been reversed by the Indiana Court of Appeals in 2010, and the congregation's request for review was granted by the Indiana Supreme Court. In its newsletter, the Presbyterian Lay Committee gave the following account of the arguments in the case two weeks ago, before Indiana's highest court:

Representing the Presbytery of Ohio Valley, attorney Judy L. Woods attempted to defend the appellate court’s decision to grant the presbytery’s trust claim on the property.

“The law regarding religious freedom, the law regarding the means and basis for deciding a church property dispute, is well settled,” she said. “Churches in all their forms of polity and government -- they form their own rules … for deciding disputes,” she added. “Courts may not interpret these or interfere with their administration if it involves delving into ecclesiastical or doctrinal matters.”

“That is not so,” Justice Brent E. Dickson pointed out, citing a 1979 U.S. Supreme Court decision in Jones v. Wolf in which the court stated that “courts may use neutral principles of law to adjudicate these property rights and they don’t have to look at the hierarchical documents.”

Woods admitted the court does not have to use the hierarchical deference standard under which courts defer to the decisions or precedents of a denomination’s highest governing body. However, Woods said that states may use it and that Indiana has in the past.

Indiana courts have also applied, however, the neutral principles standard under which courts evaluate property disputes using secular legal documents such as deeds and trust documents that have been executed according to state law without regard for denominational policies.

“States may use a number of approaches to decide church property disputes,” Woods said, admitting that neutral principles had become a preferred method.

Ms. Woods did not fare any better with another of the justices, either:

Justice Robert R. Rucker told [Woods]: “The problem I’m having with this is that, in our property law arena, there are ways you establish who owns what property and there are ways in which you establish [a] trust – that’s a matter of state trust law.”

“It doesn’t appear to me that the court of appeals applied those rules in this case and that’s bothersome,” he added, asking Woods if principles of trust law had been abandoned.

Woods countered that the court appeals looked at the “bylaws and other documents under neutral principles applicable to standard corporate documents.”

Woods claimed that the documents and bylaws established under PCUSA polity should be reviewed in the sense of a state-sanctioned legal document.

“[The appellate decision] did not get into whether these particular documents formed a trust,” she said.

“That’s my problem right there,” Dickson said. “Jones instructs us that the neutral principles approach relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges,” he said, adding, “You’re saying the court of appeals didn’t look to those familiar principles of trust and property law.”

Woods disagreed and said the court looked at trust law as it applied to Olivet’s bylaws.

“Where did Olivet ever expressly create a trust on its own property?” Dickson said.

The attorneys for Olivet and for the Presbyterian Lay Committee (as a friend of the court, or amicus curiae) were not questioned as severely as Ms. Woods, as you can read in the link referenced. In her rebuttal, Ms. Woods once again ran into hostile questioning about how a church's governance rules can override state statutes:

During rebuttal, Woods reiterated her earlier argument that trusts can be created under Indiana law without specific documents expressly stating such, claiming that Olivet created a trust simply by belonging to the PCUSA from 1983 to 2006.

“In 1983, it said it wanted to adopt the new Book of Order, including the property trust clause. In 1994, it incorporated … and said it was subject to the entire [PCUSA] constitution,” Woods said.

“If the [PCUSA] General Assembly were to amend the Book of Order and say ‘Divorces in this congregation will be governed by sharia law,’ would the members of all the member churches getting divorced have to follow those property divisions and divide their property according to that or not?” Dickson asked.

Sharia is a form of religious law in Islam that can be binding as authoritative civil law in some countries. Under some forms of sharia, men may unilaterally divorce their wives simply by telling them, without regards to her wishes.

Woods admitted that such a law could only be governed by ecclesiastical rules and would have no standing under secular authority.

“Churches do have to adhere to civil law,” she said.

“You just don’t have to abide by property law, huh?” Dickson asked.

Those who have the interest in these issues, and who have an appropriate media player, will enjoy being able to view and listen to the full oral arguments by going to this link. It is always tricky to guess the outcome of a case from how the questions at argument go, but in this particular case, I will hazard a prediction that PCUSA's Book of Order will not be regarded as establishing a self-actuating trust in Indiana. And if that is the result, then the Dennis Canon will be dead in that State, as well.